"Burdens on Religion," Native Americans and Federal Lands, and Broader Implications

Among the major sources of protection for religious liberty in America today are statutes like the Religious Freedom Restoration Act (RFRA) and state-level counterparts, and one of the most important (and confused) questions under RFRA is what constitutes a sufficient "burden" on religious freedom to trigger the federal government's duty to offer a "compelling" justification for the restriction.  The issue is raised in a cert. petition, Navajo Nation v. U.S. Forest Service, in which tribes challenge the spraying of treated/"reclaimed" sewer water for snowmaking purposes on federal lands that they hold sacred and on which they worship.  But the Ninth Circuit decision rejecting the Native Americans' claims extends far beyond that case and articulates a stringent test that would cut off many claims, including in cases that were central objects of Congress in enacting RFRA.  That is the assertion of an amicus brief of several religious liberty scholars, supporting the cert. petition, that I helped organize and that is distinguished by the names of two other MOJers, Rick Garnett and Michael Perry.  A brief by religious organizations, available at the same site, makes similar points.  Check them out not just if you're interested in Native-American religious-freedom issues, but also if you're interested in the scope of religious freedom for organizations and individuals generally.