The opinion of Judge William C. Canby, joined by Judges Duniway and Breezer, claimed that the appellants, NICPA, had "to show that the area at issue is indispensable and central to their religious practices and beliefs and that the proposed governmental actions would seriously interfere with or impair those religious practices."
They concluded that the "finding is sufficient to support the district court's conclusion that the proposed operations would interfere with the Indian plaintiffs' free exercise rights. The government disputes the finding, but our review of the record convinces us that it is not clearly erroneous.
"We also reject the government's argument that the free exercise clause cannot be violated unless the governmental activity in question penalizes religious beliefs or practices. Governmental action that makes exercise of first amendment rights more difficult or impedes religious observances may also be "'invalid even though the burden may be characterized as being only indirect.'" Sherbert v. Verner, 374 U.S. at 404 (quoting Braunfeld v. Brown, 366 U.S. 599, 607, 6 L. Ed. 2d 563, 81 S. Ct. 1144 (1961) (plurality opinion))."
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