Religion loses to road building in high court. The US Supreme Court's decision overriding objections of Indian tribes to a California development project has religion-rights advocates shaking their heads.

Free exercise of religion sustained what could be a severe setback in a United States Supreme Court decision yesterday. In an Indian lands case, the justices ruled 5-to-3 on Tuesday that the federal government's planned development of a parcel of public land in northern California - considered by the Yurok, Karok, and Tolowa Indians to be sacred ``high country'' - did not violate the constitutional right of the tribes to practice their religion.

The split decision leaves the high court's direction in First Amendment free-exercise cases unclear. Also in doubt is how the court might rule in non-Indian lands cases involving the right to practice their religion in the face of a government challenge.

Although rejecting the Indians' religious freedom argument, Associate Justice Sandra Day O'Connor conceded that `` ... nothing in our argument should be read to encourage governmental insensitivity to the religious needs of any citizen.''

Justice O'Connor added: ``The government's rights to the use of its own land, for example, need not and should not discourage it from accommodating religious practices like those engaged in by the Indians.''

Writing in dissent, Associate Justice William J. Brennan said that this ruling ``essentially leaves Native Americans with absolutely no constitutional protection against perhaps the gravest threat to their religious practices.''

Justice Brennan continued: ``I find it difficult to imagine conduct more insensitive to religious needs than the government's determination to build a marginally useful road in the face of uncontradicted evidence that the road will render the practice of [the Indians'] religion impossible.''

Government lawyers had argued that the decision to build this road was not aimed at the Indians' religious beliefs and that the high court should not require the government to organize its own internal affairs to subsidize a group's spiritual development. They also held that the road would provide a greater good in making possible timber development and public access to recreational facilities.

A US Department of Justice source close to this case - who would not speak for attribution - insisted that the government had a responsibility to administer the land in a way that would benefit the public at large, not just the Indian tribes.

``You can imagine that there are lots of religious beliefs about use of public lands,'' the source said.

Nell Jessup Newton, associate professor of law at Catholic University in Washington, D.C., says this is a ``very key'' ruling in terms of free exercise and sacred land. She points out that the Supreme Court tends to be ``deferential to government'' in cases ``where government is administering its own sites.''

She also likens this ruling to a l986 high court finding against an American Indian family which refused on religious grounds to use a social security number for a child in order to obtain welfare benefits.

Professor Newton said that the Supreme Court has generally been ``less sympathetic'' to free exercise of religion claims than to those seeking to prohibit prayer in public schools and public aid to religious institutions.

In the case decided Tuesday (Lyng v. Northwest Indian Cemetery Protection Association), lower courts had all ruled in favor of the tribes. The Ninth US Circuit Court of Appeals had found that ``the high country is indispensable to a significant number of Indian healers and religious leaders as a place where they receive the `power' that permits them to fill their religious roles that are central to the traditional religions.''

Joining O'Connor in the majority were Chief Justice William Rehnquist and Justices Antonin Scalia, John Paul Stevens, and Byron White. Justices Harry Blackmun and Thurgood Marshall dissented with Mr. Brennan.

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