Lyng v. Northwest Indian Cemetery Protective Ass'n

U.S. Supreme Court Lyng v. Northwest Indian Cemetery, 485
U.S. 439 (1988) Lyng v. Northwest Indian Cemetery
Protective Association No. 86-1013 Argued November 30,
1987 Decided April 19,
1988 485
U.S. 439 CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE NINTH CIRCUIT Syllabus In 1982, the United States Forest Service prepared a final
environmental impact statement for constructing a paved road
through federal land, including the Chimney Rock area of the Six
Rivers National Forest. This area, as reported in a study
commissioned by the Service, has historically been used by certain
American Indians for religious rituals that depend upon privacy,
silence, and an undisturbed natural setting. Rejecting the study's
recommendation that the road not be completed through the Chimney
Rock area because it would irreparably damage the sacred areas, and
also rejecting alternative routes outside the National Forest, the
Service selected a route through the Chimney Rock area that avoided
archeological sites and was removed as far as possible from the
sites used by the Indians for specific spiritual activities. At
about the same time, the Service also adopted a management plan
allowing for timber harvesting in the same area, but providing for
protective zones around all the religious sites identified in the
study. After exhausting administrative remedies, respondents -- an
Indian organization, individual Indians, nature organizations and
members thereof, and the State of California -- filed suit in
Federal District Court challenging both the road-building and
timber harvesting decisions. The court issued a permanent
injunction that prohibited the Government from constructing the
Chimney Rock section of the road or putting the timber harvesting
plan into effect, holding, inter alia, that such actions
would violate respondent Indians' rights under the Free Exercise
Clause of the First Amendment and would violate certain federal
statutes. The Court of Appeals affirmed in pertinent part. Held: 1. The courts below did not clearly explain whether -- in
keeping with the principle requiring that courts reach
constitutional questions only when necessary -- they determined
that a decision on the First Amendment issue was necessary because
it might entitle respondents to relief beyond that to which they
were entitled on their statutory claims. The structure and wording
of the District Court's injunction, however, suggest that the
statutory holding would not have supported all the relief Page 485 U. S. 440 granted, and the Court of Appeals' silence as to the necessity
of reaching the First Amendment issue may have reflected its
understanding that the District Court's injunction necessarily
rested in part on constitutional grounds. Because it appears
reasonably likely that the First Amendment issue was necessary to
the decisions below, and because the Government is confident that
it can cure the statutory defects identified below, it would be
inadvisable for this Court to vacate and remand without addressing
the constitutional question on the merits. Pp. 485 U. S.
445 -447.

															2. The Free Exercise Clause does not prohibit the Government
from permitting timber harvesting in the Chimney Rock area or
constructing the proposed road. Pp. 485 U. S.
447 -458.

															(a) In Bowen v. Roy, 476 U. S. 693 --
which held that a federal statute requiring States to use Social
Security numbers in administering certain welfare programs did not
violate Indian religious rights under the Free Exercise Clause --
this Court rejected the same kind of challenge that respondents
assert. Just as in Roy, the affected individuals here
would not be coerced by the Government's action into violating
their religious beliefs; nor would the governmental action penalize
the exercise of religious rights by denying religious adherents an
equal share of the rights, benefits, and privileges enjoyed by
other citizens. Incidental effects of government programs, which
may interfere with the practice of certain religions, but which
have no tendency to coerce individuals into acting contrary to
their religious beliefs, do not require government to bring forward
a compelling justification for its otherwise lawful actions. The
Free Exercise Clause is written in terms of what the government
cannot do to the individual, not in terms of what the individual
can exact from the government. Even assuming that the Government's
actions here will virtually destroy the Indians' ability to
practice their religion, the Constitution simply does not provide a
principle that could justify upholding respondents' legal claims.
Pp. 485 U. S.
447 -453.

															(b) The Government's right to the use of its own lands need not
and should not discourage it from accommodating religious practices
like those engaged in by the Indian respondents. The Government has
taken numerous steps to minimize the impact that construction of
the road will have on the Indians' religious activities -- such as
choosing the route that best protects sites of specific rituals
from adverse audible intrusions and planning steps to reduce the
visual impact of the road on the surrounding country. Such
solicitude accords with the policy and requirements of the American
Indian Religious Freedom Act. Contrary to respondents' contention,
however, that Act does not create any enforceable legal right that
could authorize the District Court's injunction. Pp. 485 U. S.
453 -455.

															795 F.2d 688, reversed and remanded. Page 485 U. S. 441 O'CONNOR, J., delivered the opinion of the Court, in which
REHNQUIST, C.J., and WHITE, STEVENS, and SCALIA, JJ., joined.
BRENNAN, J., filed a dissenting opinion, in which MARSHALL and
BLACKMUN, JJ., joined, post, p. 485 U. S. 458 .
KENNEDY, J., took no part in the consideration or decision of the
case.

															JUSTICE O'CONNOR delivered the opinion of the Court.

															This case requires us to consider whether the First Amendment's
Free Exercise Clause prohibits the Government from permitting
timber harvesting in, or constructing a road through, a portion of
a National Forest that has traditionally Page 485 U. S. 442 been used for religious purposes by members of three American
Indian tribes in northwestern California. We conclude that it does
not. I As part of a project to create a paved 75-mile road linking two
California towns, Gasquet and Orleans, the United States Forest
Service has upgraded 49 miles of previously unpaved roads on
federal land. In order to complete this project (the G-O road), the
Forest Service must build a 6-mile paved segment through the
Chimney Rock section of the Six Rivers National Forest. That
section of the forest is situated between two other portions of the
road that are already complete.

															In 1977, the Forest Service issued a draft environmental impact
statement that discussed proposals for upgrading an existing
unpaved road that runs through the Chimney Rock area. In response
to comments on the draft statement, the Forest Service commissioned
a study of American Indian cultural and religious sites in the
area. The Hoopa Valley Indian Reservation adjoins the Six Rivers
National Forest, and the Chimney Rock area has historically been
used for religious purposes by Yurok, Karok, and Tolowa Indians.
The commissioned study, which was completed in 1979, found that the
entire area "is significant as an integral and indispensable part
of Indian religious conceptualization and practice." App. 181.
Specific sites are used for certain rituals, and

															"successful use of the [area] is dependent upon and facilitated
by certain qualities of the physical environment, the most
important of which are privacy, silence, and an undisturbed natural
setting." Ibid. (footnote omitted). The study concluded that
constructing a road along any of the available routes

															"would cause serious and irreparable damage to the sacred areas
which are an integral and necessary part of the belief systems and
lifeway of Northwest California Indian peoples." Id. at 182. Accordingly, the report recommended that
the G-O road not be completed. Page 485 U. S. 443 In 1982, the Forest Service decided not to adopt this
recommendation, and it prepared a final environmental impact
statement for construction of the road. The Regional Forester
selected a route that avoided archeological sites and was removed
as far as possible from the sites used by contemporary Indians for
specific spiritual activities. Alternative routes that would have
avoided the Chimney Rock area altogether were rejected because they
would have required the acquisition of private land, had serious
soil stability problems, and would in any event have traversed
areas having ritualistic value to American Indians. See
id. at 217-218. At about the same time, the Forest Service
adopted a management plan allowing for the harvesting of
significant amounts of timber in this area of the forest. The
management plan provided for one-half mile protective zones around
all the religious sites identified in the report that had been
commissioned in connection with the G-O road.

															After exhausting their administrative remedies, respondents --
an Indian organization, individual Indians, nature organizations
and individual members of those organizations, and the State of
California -- challenged both the roadbuilding and timber
harvesting decisions in the United States District Court for the
Northern District of California. Respondents claimed that the
Forest Service's decisions violated the Free Exercise Clause, the
Federal Water Pollution Control Act (FWPCA), 86 Stat. 896, as
amended, 33 U.S.C. § 1251 et seq., the National
Environmental Policy Act of 1969 (NEPA), 83 Stat. 852, 42 U.S.C. §
4321 et seq., several other federal statutes, and
governmental trust responsibilities to Indians living on the Hoopa
Valley Reservation.

															After a trial, the District Court issued a permanent injunction
prohibiting the Government from constructing the Chimney Rock
section of the G-O road or putting the timber harvesting management
plan into effect. See Northwest Indian Cemetery Protective
Assn. v. Peterson, 565 F.
Supp. 586 (1983). The court found that both actions would
violate Page 485 U. S. 444 the Free Exercise Clause because they "would seriously damage
the salient visual, aural, and environmental qualities of the high
country." Id. at 594-595. The court also found that both
proposed actions would violate the FWPCA, and that the
environmental impact statements for construction of the road were
deficient under the NEPA. Finally, the court concluded that both
projects would breach the Government's trust responsibilities to
protect water and fishing rights reserved to the Hoopa Valley
Indians.

															While an appeal was pending before the United States Court of
Appeals for the Ninth Circuit, Congress enacted the California
Wilderness Act of 1984, Pub.L. 98-425, 98 Stat. 1619. Under that
statute, much of the property covered by the Forest Service's
management plan is now designated a wilderness area, which means
that commercial activities such as timber harvesting are forbidden.
The statute exempts a narrow strip of land, coinciding with the
Forest Service's proposed route for the remaining segment of the
G-O road, from the wilderness designation. The legislative history
indicates that this exemption was adopted "to enable the completion
of the Gasquet-Orleans Road project if the responsible authorities
so decide." S.Rep. No. 98-582, p. 29 (1984). The existing unpaved
section of road, however, lies within the wilderness area, and is
therefore now closed to general traffic.

															A panel of the Ninth Circuit affirmed in part. Northwest
Indian Cemetery Protective Assn. v. Peterson, 795 F.2d 688
(1986). The panel unanimously rejected the District Court's
conclusion that the Government's proposed actions would breach its
trust responsibilities to Indians on the Hoopa Valley Reservation.
The panel also vacated the injunction to the extent that it had
been rendered moot by the California Wilderness Act, which now
prevents timber harvesting in certain areas covered by the District
Court's order. The District Court's decision, to the extent that it
rested on statutory grounds, was otherwise unanimously affirmed Page 485 U. S. 445 By a divided decision, the District Court's constitutional
ruling was also affirmed. Relying primarily on the Forest Service's
own commissioned study, the majority found that construction of the
Chimney Rock section of the G-O road would have significant, though
largely indirect, adverse effects on Indian religious practices.
The majority concluded that the Government had failed to
demonstrate a compelling interest in the completion of the road,
and that it could have abandoned the road without thereby creating
"a religious preserve for a single group in violation of the
establishment clause." Id. at 694. The majority apparently
applied the same analysis to logging operations that might be
carried out in portions of the Chimney Rock area not covered by the
California Wilderness Act. See id. at 692-693 ("Because
most of the high country has now been designated by Congress as a
wilderness area, the issue of logging becomes less significant,
although it does not disappear").

															The dissenting judge argued that certain of the adverse effects
on the Indian respondents' religious practices could be eliminated
by less drastic measures than a ban on building the road, and that
other actual or suggested adverse effects did not pose a serious
threat to the Indians' religious practices. He also concluded that
the injunction against timber harvesting needed to be reconsidered
in light of the California Wilderness Act:

															"It is not clear whether the district court would have issued an
injunction based upon the development of the remaining small
parcels. Accordingly, I would remand to allow the district court to
reevaluate its injunction in light of the Act." Id. at 704. II We begin by noting that the courts below did not articulate the
bases of their decisions with perfect clarity. A fundamental and
longstanding principle of judicial restraint requires that courts
avoid reaching constitutional questions in advance of the necessity
of deciding them. See Three Page 485 U. S. 446 Affiliated Tribes of Ft. Berthold Reservation v. Wold
Engineering, P. C., 467 U. S. 138 , 467 U. S.
157 -158 (1984); see also, e.g., Jean v. Nelson, 472 U. S. 846 , 472 U. S. 854 (1985); Gulf Oil Co. v. Bernard, 452 U. S.
89 , 452 U. S. 99 (1981); Ashwander v. TVA, 297 U.
S. 288 , 297 U. S.
346 -348 (1936) (Brandeis, J., concurring). This
principle required the courts below to determine, before addressing
the constitutional issue, whether a decision on that question could
have entitled respondents to relief beyond that to which they were
entitled on their statutory claims. If no additional relief would
have been warranted, a constitutional decision would have been
unnecessary, and therefore inappropriate.

															Neither the District Court nor the Court of Appeals explained or
expressly articulated the necessity for their constitutional
holdings. Were we persuaded that those holdings were unnecessary,
we could simply vacate the relevant portions of the judgment below
without discussing the merits of the constitutional issue. The
structure and wording of the District Court's injunctive order,
however, suggest that the statutory holdings would not have
supported all the relief granted. The order is divided into four
sections. Two of those sections deal with a 31,100-acre tract
referred to as the Blue Creek Roadless Area. The injunction
prohibits the Forest Service from engaging in timber harvesting or
roadbuilding anywhere on the tract "unless and until" compliance
with the NEPA and the FWPCA have been demonstrated. 565 F. Supp. at
606-607. The sections of the injunction dealing with the smaller
Chimney Rock area ( i.e., the area affected by the First
Amendment challenge) are worded differently. The Forest Service is
permanently enjoined, without any qualifying language, from
constructing the proposed portion of the G-O road "and/or any
alternative route " through that area; similarly, the
injunction forbids timber harvesting or the construction of logging
roads in the Chimney Rock area pursuant to the Forest Service's
proposed management plan "or any other land management
plan. " Page 485 U. S. 447 Id. at 606 (emphasis added). These differences in
wording suggest, without absolutely implying, that an injunction
covering the Chimney Rock area would in some way have been
conditional, or narrower in scope, if the District Court had not
decided the First Amendment issue as it did. Similarly, the silence
of the Court of Appeals as to the necessity of reaching the First
Amendment issue may have reflected its understanding that the
District Court's injunction necessarily rested in part on
constitutional grounds.

															Because it appears reasonably likely that the First Amendment
issue was necessary to the decisions below, we believe that it
would be inadvisable to vacate and remand without addressing that
issue on the merits. This conclusion is strengthened by
considerations of judicial economy. The Government, which
petitioned for certiorari on the constitutional issue alone, has
informed us that it believes it can cure the statutory defects
identified below, intends to do so, and will not challenge the
adverse statutory rulings. Tr. of Oral Arg. 9-10. In this
circumstance, it is difficult to see what principle would be
vindicated by sending this case on what would almost certainly be a
brief round trip to the courts below. III A The Free Exercise Clause of the First Amendment provides that
"Congress shall make no law . . . prohibiting the free exercise [of
religion]." It is undisputed that the Indian respondents' beliefs
are sincere and that the Government's proposed actions will have
severe adverse effects on the practice of their religion. Those
respondents contend that the burden on their religious practices is
heavy enough to violate the Free Exercise Clause unless the
Government can demonstrate a compelling need to complete the G-O
road or to engage in timber harvesting in the Chimney Rock area. We
disagree. Page 485 U. S. 448 In Bowen v. Roy, 476 U. S. 693 (1986), we considered a challenge to a federal statute that
required the States to use Social Security numbers in administering
certain welfare programs. Two applicants for benefits under these
programs contended that their religious beliefs prevented them from
acceding to the use of a Social Security number for their
2-year-old daughter because the use of a numerical identifier would
" rob the spirit' of [their] daughter and prevent her from
attaining greater spiritual power." Id. at 476 U. S. 696 .
Similarly, in this case, it is said that disruption of the natural
environment caused by the G-O road will diminish the sacredness of
the area in question and create distractions that will interfere
with "training and ongoing religious experience of individuals using
[sites within] the area for personal medicine and growth . . . and
as integrated parts of a system of religious belief and practice
which correlates ascending degrees of personal power with a
geographic hierarchy of power."

															App. 181. Cf. id. at 178 ("Scarred hills and mountains,
and disturbed rocks destroy the purity of the sacred areas, and
[Indian] consultants repeatedly stressed the need of a training
doctor to be undistracted by such disturbance"). The Court rejected
this kind of challenge in Roy: "The Free Exercise Clause simply cannot be understood to require
the Government to conduct its own internal affairs in ways that
comport with the religious beliefs of particular citizens. Just as
the Government may not insist that [the Roys] engage in any set
form of religious observance, so [they] may not demand that the
Government join in their chosen religious practices by refraining
from using a number to identify their daughter. . . ."

															". . . The Free Exercise Clause affords an individual protection
from certain forms of governmental compulsion; it does not afford
an individual a right to dictate the conduct of the Government's
internal procedures."

															476 U.S. at 476 U. S.
699 -700. Page 485 U. S. 449 The building of a road or the harvesting of timber on publicly
owned land cannot meaningfully be distinguished from the use of a
Social Security number in Roy. In both cases, the
challenged Government action would interfere significantly with
private persons' ability to pursue spiritual fulfillment according
to their own religious beliefs. In neither case, however, would the
affected individuals be coerced by the Government's action into
violating their religious beliefs; nor would either governmental
action penalize religious activity by denying any person an equal
share of the rights, benefits, and privileges enjoyed by other
citizens.

															We are asked to distinguish this case from Roy on the
ground that the infringement on religious liberty here is
"significantly greater," or on the ground that the Government
practice in Roy was "purely mechanical," whereas this case
involves "a case-by-case substantive determination as to how a
particular unit of land will be managed." Brief for Indian
Respondents 33-34. Similarly, we are told that this case can be
distinguished from Roy because "the government action is
not at some physically removed location where it places no
restriction on what a practitioner may do." Brief for Respondent
State of California 18. The State suggests that the Social Security
number in Roy "could be characterized as interfering with Roy's religious tenets from a subjective point of view, where the
government's conduct of 'its own internal affairs' was known to him
only second-hand, and did not interfere with his ability to
practice his religion." Id. at 19 (footnote omitted; internal citation
omitted). In this case, however, it is said that the proposed road
will "physically destro[y] the environmental conditions and the
privacy without which the [religious] practices cannot be
conducted." Ibid. These efforts to distinguish Roy are unavailing. This
Court cannot determine the truth of the underlying beliefs that led
to the religious objections here or in Roy, see Hobbie v.
Unemployment Appeals Comm'n of Fla., 480 U.
S. 136 , 480 U. S. 144 ,
n. 9 (1987), and accordingly cannot weigh the adverse effects Page 485 U. S. 450 on the appellees in Roy and compare them with the
adverse effects on the Indian respondents. Without the ability to
make such comparisons, we cannot say that the one form of
incidental interference with an individual's spiritual activities
should be subjected to a different constitutional analysis than the
other.

															Respondents insist, nonetheless, that the courts below properly
relied on a factual inquiry into the degree to which the Indians'
spiritual practices would become ineffectual if the G-O road were
built. They rely on several cases in which this Court has sustained
free exercise challenges to government programs that interfered
with individuals' ability to practice their religion. See
Wisconsin v. Yoder, 406 U. S. 205 (1972) (compulsory school-attendance law); Sherbert v.
Verner, 374 U. S. 398 (1963) (denial of unemployment benefits to applicant who refused to
accept work requiring her to violate the Sabbath); Thomas v.
Review Board, Indiana Employment Security Div., 450 U.
S. 707 (1981) (denial of unemployment benefits to
applicant whose religion forbade him to fabricate weapons); Hobbie, supra, (denial of unemployment benefits to
religious convert who resigned position that required her to work
on the Sabbath).

															Even apart from the inconsistency between Roy and
respondents' reading of these cases, their interpretation will not
withstand analysis. It is true that this Court has repeatedly held
that indirect coercion or penalties on the free exercise of
religion, not just outright prohibitions, are subject to scrutiny
under the First Amendment. Thus, for example, ineligibility for
unemployment benefits, based solely on a refusal to violate the
Sabbath, has been analogized to a fine imposed on Sabbath worship. Sherbert, supra, at 374 U. S. 404 .
This does not and cannot imply that incidental effects of
government programs, which may make it more difficult to practice
certain religions but which have no tendency to coerce individuals
into acting contrary to their religious beliefs, require government
to bring forward a compelling justification Page 485 U. S. 451 for its otherwise lawful actions. T he crucial word in the
constitutional text is "prohibit":

															"For the Free Exercise Clause is written in terms of what the
government cannot do to the individual, not in terms of what the
individual can exact from the government." Sherbert, supra, at 374 U. S. 412 (Douglas, J., concurring).

															Whatever may be the exact line between unconstitutional
prohibitions on the free exercise of religion and the legitimate
conduct by government of its own affairs, the location of the line
cannot depend on measuring the effects of a governmental action on
a religious objector's spiritual development. The Government does
not dispute, and we have no reason to doubt, that the logging and
roadbuilding projects at issue in this case could have devastating
effects on traditional Indian religious practices. Those practices
are intimately and inextricably bound up with the unique features
of the Chimney Rock area, which is known to the Indians as the
"high country." Individual practitioners use this area for personal
spiritual development; some of their activities are believed to be
critically important in advancing the welfare of the Tribe, and
indeed, of mankind itself. The Indians use this area, as they have
used it for a very long time, to conduct a wide variety of specific
rituals that aim to accomplish their religious goals. According to
their beliefs, the rituals would not be efficacious if conducted at
other sites than the ones traditionally used, and too much
disturbance of the area's natural state would clearly render any
meaningful continuation of traditional practices impossible. To be
sure, the Indians themselves were far from unanimous in opposing
the G-O road, see App. 180, and it seems less than certain
that construction of the road will be so disruptive that it will
doom their religion. Nevertheless, we can assume that the threat to
the efficacy of at least some religious practices is extremely
grave.

															Even if we assume that we should accept the Ninth Circuit's
prediction, according to which the G-O road will "virtually destroy
the . . . Indians' ability to practice their religion," Page 485 U. S. 452 795 F.2d at 693 (opinion below), the Constitution simply does
not provide a principle that could justify upholding respondents'
legal claims. However much we might wish that it were otherwise,
government simply could not operate if it were required to satisfy
every citizen's religious needs and desires. A broad range of
government activities -- from social welfare programs to foreign
aid to conservation projects -- will always be considered essential
to the spiritual wellbeing of some citizens, often on the basis of
sincerely held religious beliefs. Others will find the very same
activities deeply offensive, and perhaps incompatible with their
own search for spiritual fulfillment and with the tenets of their
religion. The First Amendment must apply to all citizens alike, and
it can give to none of them a veto over public programs that do not
prohibit the free exercise of religion. The Constitution does not,
and courts cannot, offer to reconcile the various competing demands
on government, many of them rooted in sincere religious belief,
that inevitably arise in so diverse a society as ours. That task,
to the extent that it is feasible, is for the legislatures and
other institutions. Cf. The Federalist No. 10 (suggesting
that the effects of religious factionalism are best restrained
through competition among a multiplicity of religious sects).

															One need not look far beyond the present case to see why the
analysis in Roy, but not respondents' proposed extension
of Sherbert and its progeny, offers a sound reading of the
Constitution. Respondents attempt to stress the limits of the
religious servitude that they are now seeking to impose on the
Chimney Rock area of the Six Rivers National Forest. While
defending an injunction against logging operations and the
construction of a road, they apparently do not at present object to
the area's being used by recreational visitors, other Indians, or
forest rangers. Nothing in the principle for which they contend,
however, would distinguish this case from another lawsuit in which
they (or similarly situated religious objectors) might seek to
exclude all human activity but Page 485 U. S. 453 their own from sacred areas of the public lands. The Indian
respondents insist that " [p]rivacy during the power quests
is required for the practitioners to maintain the purity needed for
a successful journey." Brief for Indian Respondents 8 (emphasis
added; citation to record omitted). Similarly:

															"The practices conducted in the high country entail intense
meditation and require the practitioner to achieve a profound
awareness of the natural environment. Prayer seats are oriented so
there is an unobstructed view, and the practitioner must be
surrounded by undisturbed naturalness." Id. at 8, n. 4 (emphasis added; citations to record
omitted). No disrespect for these practices is implied when one
notes that such beliefs could easily require de facto beneficial ownership of some rather spacious tracts of public
property. Even without anticipating future cases, the diminution of
the Government's property rights, and the concomitant subsidy of
the Indian religion, would in this case be far from trivial: the
District Court's order permanently forbade commercial timber
harvesting, or the construction of a two-lane road, anywhere within
an area covering a full 27 sections ( i.e. more than 17,000
acres) of public land.

															The Constitution does not permit government to discriminate
against religions that treat particular physical sites as sacred,
and a law prohibiting the Indian respondents from visiting the
Chimney Rock area would raise a different set of constitutional
questions. Whatever rights the Indians may have to the use of the
area, however, those rights do not divest the Government of its
right to use what is, after all, its land. Cf. Bowen v.
Roy, 476 U.S. at 476 U. S.
724 -727 (O'CONNOR, J., concurring in part and dissenting
in part) (distinguishing between the Government's use of
information in its possession and the Government's requiring an
individual to provide such information). B Nothing in our opinion should be read to encourage governmental
insensitivity to the religious needs of any citizen. Page 485 U. S. 454 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 Indian respondents. Cf.
Sherbert, 374 U.S. at 374 U. S. 422 -423 (Harlan, J., dissenting). It is worth
emphasizing, therefore, that the Government has taken numerous
steps in this very case to minimize the impact that construction of
the G-O road will have on the Indians' religious activities. First,
the Forest Service commissioned a comprehensive study of the
effects that the project would have on the cultural and religious
value of the Chimney Rock area. The resulting 423-page report was
so sympathetic to the Indians' interests that it has constituted
the principal piece of evidence relied on by respondents throughout
this litigation.

															Although the Forest Service did not in the end adopt the
report's recommendation that the project be abandoned, many other
ameliorative measures were planned. No sites where specific rituals
take place were to be disturbed. In fact, a major factor in
choosing among alternative routes for the road was the relation of
the various routes to religious sites: the route selected by the
Regional Forester is, he noted,

															"the farthest removed from contemporary spiritual sites; thus,
the adverse audible intrusions associated with the road would be
less than all other alternatives."

															App. 102. Nor were the Forest Service's concerns limited to
"audible intrusions." As the dissenting judge below observed, 10
specific steps were planned to reduce the visual impact of the road
on the surrounding country. See 795 F.2d at 703 (Beezer,
J., dissenting in part).

															Except for abandoning its project entirely, and thereby leaving
the two existing segments of road to dead-end in the middle of a
National Forest, it is difficult to see how the Government could
have been more solicitous. Such solicitude accords with

															"the policy of the United States to protect and preserve for
American Indians their inherent right of freedom to believe,
express, and exercise the traditional religions Page 485 U. S. 455 of the American Indian . . . including but not limited to access
to sites, use and possession of sacred objects, and the freedom to
worship through ceremonials and traditional rites."

															American Indian Religious Freedom Act (AIRFA), Pub.L. 95-341, 92
Stat. 469, 42 U.S.C. § 1996.

															Respondents, however, suggest that AIRFA goes further, and in
effect enacts their interpretation of the First Amendment into
statutory law. Although this contention was rejected by the
District Court, they seek to defend the judgment below by arguing
that AIRFA authorizes the injunction against completion of the G-O
road. This argument is without merit. After reciting several
legislative findings, AIRFA "resolves" upon the policy quoted
above. A second section of the statute, 92 Stat. 470, required an
evaluation of federal policies and procedures, in consultation with
native religious leaders, of changes necessary to protect and
preserve the rights and practices in question. The required report
dealing with this evaluation was completed and released in 1979.
Reply Brief for Petitioners 2, n. 3. Nowhere in the law is there so
much as a hint of any intent to create a cause of action or any
judicially enforceable individual rights.

															What is obvious from the face of the statute is confirmed by
numerous indications in the legislative history. The sponsor of the
bill that became AIRFA, Representative Udall, called it "a sense of
Congress joint resolution," aimed at ensuring that

															"the basic right of the Indian people to exercise their
traditional religious practices is not infringed without a clear
decision on the part of the Congress or the administrators that
such religious practices must yield to some higher
consideration."

															124 Cong.Rec. 21444 (1978). Representative Udall emphasized that
the bill would not "confer special religious rights on Indians,"
would "not change any existing State or Federal law," and in fact
"has no teeth in it." Id. at 21444-21445. Page 485 U. S. 456 C The dissent proposes an approach to the First Amendment that is
fundamentally inconsistent with the principles on which our
decision rests. Notwithstanding the sympathy that we all must feel
for the plight of the Indian respondents, it is plain that the
approach taken by the dissent cannot withstand analysis. On the
contrary, the path towards which it points us is incompatible with
the text of the Constitution, with the precedents of this Court,
and with a responsible sense of our own institutional role.

															The dissent begins by asserting that the

															"constitutional guarantee we interpret today . . . is directed
against any form of government action that frustrates or
inhibits religious practice." Post at 485 U. S. 459 (emphasis added). The Constitution, however, says no such thing.
Rather, it states: "Congress shall make no law . . . prohibiting the free exercise [of religion]." U.S.Const.,
Amdt. 1 (emphasis added).

															As we explained above, Bowen v. Roy rejected a First
Amendment challenge to Government activities that the religious
objectors sincerely believed would " rob the spirit' of [their]
daughter and prevent her from attaining greater spiritual power." See supra at 485 U. S. 448 (quoting Roy, 476 U.S. at 476 U. S.
696 ). The dissent now offers to distinguish that case by
saying that the Government was acting there "in a purely internal
manner," whereas land-use decisions "are likely to have substantial
external effects." Post at 485 U. S. 470 .
Whatever the source or meaning of the dissent's distinction, it has
no basis in Roy. Robbing the spirit of a child, and
preventing her from attaining greater spiritual power, is both a
"substantial external effect" and one that is remarkably similar to
the injury claimed by respondents in the case before us today. The
dissent's reading of Roy would effectively overrule that
decision, without providing any compelling justification for doing
so. The dissent also misreads Wisconsin v. Yoder, 406 U. S. 205 (1972). The statute at issue in that case prohibited the Page 485 U. S. 457 Amish parents, on pain of criminal prosecution, from providing
their children with the kind of education required by the Amish
religion. Id. at 406 U. S.
207 -209, 406 U. S. 223 .
The statute directly compelled the Amish to send their children to
public high schools "contrary to the Amish religion and way of
life." Id. at 406 U. S. 209 .
The Court acknowledged that the statute might be constitutional, despite its coercive nature, if the State could show with
sufficient

															"particularity how its admittedly strong interest in compulsory
education would be adversely affected by granting an exemption to
the Amish." Id. at 406 U. S. 236 (citation omitted). The dissent's out-of-context quotations
notwithstanding, there is nothing whatsoever in the Yoder opinion to support the proposition that the "impact" on the Amish
religion would have been constitutionally problematic if the
statute at issue had not been coercive in nature. Cf. post at 485 U. S.
466 .

															Perceiving a "stress point in the longstanding conflict between
two disparate cultures," the dissent attacks us for declining
to

															"balanc[e] these competing and potentially irreconcilable
interests, choosing instead to turn this difficult task over to the
Federal Legislature." Post at 485 U. S. 473 .
Seeing the Court as the arbiter, the dissent proposes a legal test
under which it would decide which public lands are "central" or
"indispensable" to which religions, and by implication which are
"dispensable" or "peripheral," and would then decide which
government programs are "compelling" enough to justify
"infringement of those practices." Post at 485 U. S. 475 .
We would accordingly be required to weigh the value of every
religious belief and practice that is said to be threatened by any
government program. Unless a "showing of centrality,'" post at 485 U. S. 474 ,
is nothing but an assertion of centrality, see post at 485 U. S. 475 ,
the dissent thus offers us the prospect of this Court's holding
that some sincerely held religious beliefs and practices are not
"central" to certain religions, despite protestations to the
contrary from the religious objectors who brought the lawsuit. In
other words, the dissent's approach would Page 485 U. S. 458 require us to rule that some religious adherents misunderstand
their own religious beliefs. We think such an approach cannot be
squared with the Constitution or with our precedents, and that it
would cast the Judiciary in a role that we were never intended to
play. IV The decision of the court below, according to which the First
Amendment precludes the Government from completing the G-O road or
from permitting timber harvesting in the Chimney Rock area, is
reversed. In order that the District Court's injunction may be
reconsidered in light of this holding, and in the light of any
other relevant events that may have intervened since the injunction
issued, the case is remanded for further proceedings consistent
with this opinion. It is so ordered. JUSTICE KENNEDY took no part in the consideration or decision of
this case.

															JUSTICE BRENNAN, with whom JUSTICE MARSHALL and JUSTICE BLACKMUN
join, dissenting.

															" [T]he Free Exercise Clause,'" the Court explains today,
"`is written in terms of what the government cannot do to the
individual, not in terms of what the individual can exact from the
government.'" Ante at 485 U. S. 451 (quoting Sherbert v. Verner, 374 U.
S. 398 , 374 U. S. 412 (1963) (Douglas, J., concurring)). Pledging fidelity to this
unremarkable constitutional principle, the Court nevertheless
concludes that, even where the Government uses federal land in a
manner that threatens the very existence of a Native American
religion, the Government is simply not "doing" anything to the
practitioners of that faith. Instead, the Court believes that
Native Americans who request that the Government refrain from
destroying their religion effectively seek to exact from the
Government de facto beneficial ownership of federal
property. These two astonishing conclusions follow naturally from
the Court's determination Page 485 U. S. 459 that federal land use decisions that render the practice of a
given religion impossible do not burden that religion in a manner
cognizable under the Free Exercise Clause, because such decisions
neither coerce conduct inconsistent with religious belief nor
penalize religious activity. The constitutional guarantee we
interpret today, however, draws no such fine distinctions between
types of restraints on religious exercise, but rather is directed
against any form of governmental action that frustrates or inhibits
religious practice. Because the Court today refuses even to
acknowledge the constitutional injury respondents will suffer, and
because this refusal essentially leaves Native Americans with
absolutely no constitutional protection against perhaps the gravest
threat to their religious practices, I dissent. I For at least 200 years and probably much longer, the Yurok,
Karok, and Tolowa Indians have held sacred an approximately
25-square-mile area of land situated in what is today the Blue
Creek Unit of Six Rivers National Forest in northwestern
California. As the Government readily concedes, regular visits to
this area, known to respondent Indians as the "high country," have
played and continue to play a "critical" role in the religious
practices and rituals of these Tribes. Brief for Petitioners 3.
Those beliefs, only briefly described in the Court's opinion, are
crucial to a proper understanding of respondents' claims.

															As the Forest Service's commissioned study, the Theodoratus
Report, explains, for Native Americans religion is not a discrete
sphere of activity separate from all others, and any attempt to
isolate the religious aspects of Indian life "is in reality an
exercise which forces Indian concepts into non-Indian categories."
App. 110; D. Theodoratus, Cultural Resources of the Chimney Rock
Section, Gasquet-Orleans Road, Six Rivers National Forest (1979).
Thus, for most Native Americans, "[t]he area of worship cannot be
delineated from Page 485 U. S. 460 social, political, cultur[al], and other areas o[f] Indian
lifestyle." American Indian Religious Freedom, Hearings on S. J.
Res. 102 before the Senate Select Committee on Indian Affairs, 95th
Cong., 2d Sess., 86 (1978) (statement of Barney Old Coyote, Crow
Tribe). A pervasive feature of this lifestyle is the individual's
relationship with the natural world; this relationship, which can
accurately though somewhat incompletely be characterized as one of
stewardship, forms the core of what might be called, for want of a
better nomenclature, the Indian religious experience. While
traditional Western religions view creation as the work of a deity
"who institutes natural laws which then govern the operation of
physical nature," tribal religions regard creation as an ongoing
process in which they are morally and religiously obligated to
participate. U.S. Federal Agencies Task Force, American Indian
Religious Freedom Act Report 11 (1979) (Task Force Report). Native
Americans fulfill this duty through ceremonies and rituals designed
to preserve and stabilize the earth and to protect humankind from
disease and other catastrophes. Failure to conduct these ceremonies
in the manner and place specified, adherents believe, will result
in great harm to the earth and to the people whose welfare depends
upon it. Id. at 10.

															In marked contrast to traditional Western religions, the belief
systems of Native Americans do not rely on doctrines, creeds, or
dogmas. Established or universal truths -- the mainstay of Western
religions -- play no part in Indian faith. Ceremonies are communal
efforts undertaken for specific purposes in accordance with
instructions handed down from generation to generation.
Commentaries on or interpretations of the rituals themselves are
deemed absolute violations of the ceremonies, whose value lies not
in their ability to explain the natural world or to enlighten
individual believers, but in their efficacy as protectors and
enhancers of tribal existence. Ibid. Where dogma lies at
the heart of Western religions, Native American faith is
inextricably Page 485 U. S. 461 bound to the use of land. The site-specific nature of Indian
religious practice derives from the Native American perception that
land is itself a sacred, living being. See Suagee,
American Indian Religious Freedom and Cultural Resources
Management: Protecting Mother Earth's Caretakers, 10 Am.Ind.L.Rev.
1, 10 (1982). Rituals are performed in prescribed locations not
merely as a matter of traditional orthodoxy, but because land, like
all other living things, is unique, and specific sites possess
different spiritual properties and significance. Within this belief
system, therefore, land is not fungible; indeed, at the time of the
Spanish colonization of the American Southwest,

															"all . . . Indians held in some form a belief in a sacred and
indissoluble bond between themselves and the land in which their
settlements were located."

															E. Spicer, Cycles of Conquest: The Impact of Spain, Mexico, and
the United States on the Indians of the Southwest, 1533-1960, p.
576 (1962).

															For respondent Indians, the most sacred of lands is the high
country where, they believe, prehuman spirits moved with the coming
of humans to the Earth. Because these spirits are seen as the
source of religious power, or "medicine," many of the tribes'
rituals and practices require frequent journeys to the area. Thus,
for example, religious leaders preparing for the complex of
ceremonies that underlie the Tribes' World Renewal efforts must
travel to specific sites in the high country in order to attain the
medicine necessary for successful renewal. Similarly, individual
tribe members may seek curative powers for the healing of the sick,
or personal medicine for particular purposes such as good luck in
singing, hunting, or love. A period of preparation generally
precedes such visits, and individuals must select trails in the
sacred area according to the medicine they seek and their
abilities, gradually moving to increasingly more powerful sites,
which are typically located at higher altitudes. Among the most
powerful of sites are Chimney Rock, Doctor Rock, and Peak 8, all of
which are elevated rock outcroppings. Page 485 U. S. 462 According to the Theodoratus Report, the qualities "of silence,
the aesthetic perspective, and the physical attributes, are an
extension of the sacredness of [each] particular site." App. 148.
The act of medicine-making is akin to meditation: the individual
must integrate physical, mental, and vocal actions in order to
communicate with the prehuman spirits. As a result,

															"successful use of the high country is dependent upon and
facilitated by certain qualities of the physical environment, the
most important of which are privacy, silence, and an undisturbed
natural setting." Id. at 181. Although few Tribe members actually make
medicine at the most powerful sites, the entire Tribe's welfare
hinges on the success of the individual practitioners.

															Beginning in 1972, the Forest Service began preparing a
multiple-use management plan for the Blue Creek Unit. The plan's
principal features included the harvesting of 733 million board
feet of Douglas fir over an 80-year period and the completion of a
6-mile segment of paved road running between two northern
California towns, Gasquet and Orleans (the G-O road). The road's
primary purpose was to provide a route for hauling the timber
harvested under the management plan; in addition, it would enhance
public access to the Six Rivers and other national forests, and
allow for more efficient maintenance and fire control by the Forest
Service itself. In the mid-1970's, the Forest Service circulated
draft environmental impact statements evaluating the effects of
several proposed routes for the final segment of the G-O road,
including at least two that circumnavigated the high country
altogether. Ultimately, however, the Service settled on a route
running along the Chimney Rock Corridor, which traverses the
Indians' sacred lands.

															Respondent Indians brought suit to enjoin implementation of the
plan, alleging that the road construction and timber harvesting
would impermissibly interfere with their religious practices in
violation of the Free Exercise Clause of the First Page 485 U. S. 463 Amendment. [ Footnote 1 ]
Following a trial, the District Court granted the requested
injunctive relief. The court found that

															"use of the high country is essential to [respondents'] 'World
Renewal' ceremonies . . . which constitute the heart of the
Northwest Indian religious belief system,"

															and that

															"'[i]ntrusions on the sanctity of the Blue Creek high country
are . . . potentially destructive of the very core of Northwest
[Indian] religious beliefs and practices.'" Northwest Indian Cemetery Protective Assn. v.
Peterson, 565 F.
Supp. 586 , 594-595 (ND Cal.1983) (quoting the Theodoratus
Report, at 420). Concluding that these burdens on respondents'
religious practices were sufficient to trigger the protections of
the Free Exercise Clause, the court found that the interests served
by the G-O road and the management plan were insufficient to
justify those burdens. In particular, the court found that the road
would not improve access to timber resources in the Blue Creek Unit
and indeed was unnecessary to the harvesting of that timber; that
it would not significantly improve the administration of the Six
Rivers National Forest; and that it would increase recreational
access only marginally, and at the expense of the very pristine
environment that makes the area suitable for primitive recreational
use in the first place. 565 F. Supp. at 595-596. The court further
found that the unconnected segments of the road had independent
utility, [ Footnote 2 ] and that,
although completion of the Page 485 U. S. 464 Chimney Rock segment would reduce timber hauling costs, it would
not generate new jobs, but would, instead, merely shift work from
one area of the region to another. Id. at 596. Finally, in
enjoining the proposed harvesting activities, the court found that
the Blue Creek Unit's timber resources were but a small fraction of
those located in the entire National Forest, and that the local
timber industry would not suffer seriously if access to this
fraction were foreclosed. Ibid. While the case was pending on appeal before the Court of Appeals
for the Ninth Circuit, Congress passed the California Wilderness
Act of 1984, Pub.L. 98-425, 98 Stat. 1619, which designates most of
the the Blue Creek Unit a wilderness area, and thus precludes
logging and all other commercial activities in most of the area
covered by the Forest Service's management plan. Thereafter, the
Court of Appeals affirmed the District Court's determination that
the proposed harvesting and construction activities violated
respondents' constitutional rights. Recognizing that the high
country is "indispensable" to the religious lives of the
approximately 5,000 Tribe members who reside in the area, Northwest Indian Cemetery Protective Assn. v. Peterson, 795 F.2d 688, 692 (1986), the court concluded "that the proposed
government operations would virtually destroy the . . .
Indians' ability to practice their religion. " Id. at
693 (emphasis added). [ Footnote
3 ] Like the lower court, the Court of Appeals found Page 485 U. S. 465 the Government's interests in building the road and permitting
limited timber harvesting -- interests which of course were
considerably undermined by passage of the California Wilderness Act
-- did not justify the destruction of respondents' religion. Id. at 695. II The Court does not for a moment suggest that the interests
served by the G-O road are in any way compelling, or that they
outweigh the destructive effect construction of the road will have
on respondents' religious practices. Instead, the Court embraces
the Government's contention that its prerogative as landowner
should always take precedence over a claim that a particular use of
federal property infringes religious practices. Attempting to
justify this rule, the Court argues that the First Amendment bars
only outright prohibitions, indirect coercion, and penalties on the
free exercise of religion. All other "incidental effects of
government programs," it concludes, even those

															"which may make it more difficult to practice certain religions
but which have no tendency to coerce individuals into acting
contrary to their religious beliefs,"

															simply do not give rise to constitutional concerns. See
ante at 485 U. S. 450 .
Since our recognition nearly half a century ago that restraints on
religious conduct implicate the concerns of the Free Exercise
Clause, see Prince v. Massachusetts, 321 U.
S. 158 (1944), we have never suggested that the
protections of the guarantee are limited to so narrow a range of
governmental burdens. The land use decision challenged here will
restrain respondents from practicing their religion as surely and
as completely as any of the governmental actions we have struck
down in the past, and the Court's efforts simply to define away
respondents' injury Page 485 U. S. 466 as nonconstitutional are both unjustified and ultimately
unpersuasive. A The Court ostensibly finds support for its narrow formulation of
religious burdens in our decisions in Hobbie v. Unemployment
Appeals Comm'n of Fla., 480 U. S. 136 (1987), Thomas v. Review Bd., Indiana Employment Security
Division, 450 U. S. 707 (1981), and Sherbert v. Verner, 374 U.
S. 398 (1963). In those cases, the laws at issue forced
individuals to choose between adhering to specific religious tenets
and forfeiting unemployment benefits on the one hand, and accepting
work repugnant to their religious beliefs on the other. The
religions involved, therefore, lent themselves to the coercion
analysis the Court espouses today, for they proscribed certain
conduct such as munitions work ( Thomas ) or working on
Saturdays ( Sherbert, Hobbie ) that the unemployment
benefits laws effectively compelled. In sustaining the challenges
to these laws, however, we nowhere suggested that such coercive
compulsion exhausted the range of religious burdens recognized
under the Free Exercise Clause.

															Indeed, in Wisconsin v. Yoder, 406 U.
S. 205 (1972), we struck down a state compulsory school
attendance law on free exercise grounds not so much because of the
affirmative coercion the law exerted on individual religious
practitioners, but because of "the impact that compulsory
high school attendance could have on the continued survival of
Amish communities." Id. at 406 U. S. 209 (emphasis added). Like respondents here, the Amish view life as
pervasively religious and their faith accordingly dictates their
entire lifestyle. See id. at 406 U. S. 210 .
Detailed as their religious rules are, however, the parents in Yoder did not argue that their religion expressly
proscribed public education beyond the eighth grade; rather, they
objected to the law because

															"the values . . . of the modern secondary school are in
sharp conflict with the fundamental mode of life mandated
by the Amish religion." Id. at 406 U. S. 217 (emphasis added). By exposing Amish children "to a Page 485 U. S. 467 "worldly" influence in conflict with their beliefs," and by
removing those children "from their community, physically and
emotionally, during the crucial and formative adolescent period of
life" when Amish beliefs are inculcated, id. at 406 U. S. 211 ,
the compulsory school law posed "a very real threat of undermining
the Amish community and religious practice." Id. at 406 U. S. 218 .
Admittedly, this threat arose from the compulsory nature of the law
at issue, but it was the "impact" on religious practice itself, not
the source of that impact, that led us to invalidate the law.

															I thus cannot accept the Court's premise that the form of the
government's restraint on religious practice, rather than its
effect, controls our constitutional analysis. Respondents here have
demonstrated that construction of the G-O road will completely
frustrate the practice of their religion, for, as the lower courts
found, the proposed logging and construction activities will
virtually destroy respondents' religion, and will therefore
necessarily force them into abandoning those practices altogether.
Indeed, the Government's proposed activities will restrain
religious practice to a far greater degree here than in any of the
cases cited by the Court today. None of the religious adherents in Hobbie, Thomas, and Sherbert, for example,
claimed or could have claimed that the denial of unemployment
benefits rendered the practice of their religions impossible; at
most, the challenged laws made those practices more expensive.
Here, in stark contrast, respondents have claimed -- and proved --
that the desecration of the high country will prevent religious
leaders from attaining the religious power or medicine
indispensable to the success of virtually all their rituals and
ceremonies. Similarly, in Yoder, the compulsory school law
threatened to "undermin[e] the Amish community and religious
practice," and thus to force adherents to "abandon belief . . . or
. . . to migrate to some other and more tolerant region." 406 U.S.
at 406 U. S. 218 .
Here the threat posed by the desecration of sacred lands that are
indisputably essential to Page 485 U. S. 468 respondents' religious practices is both more direct and more
substantial than that raised by a compulsory school law that simply
exposed Amish children to an alien value system. And of course
respondents here do not even have the option, however unattractive
it might be, of migrating to more hospitable locales; the
site-specific nature of their belief system renders it
nontransportable.

															Ultimately, the Court's coercion test turns on a distinction
between governmental actions that compel affirmative conduct
inconsistent with religious belief, and those governmental actions
that prevent conduct consistent with religious belief. In my view,
such a distinction is without constitutional significance. The
crucial word in the constitutional text, as the Court itself
acknowledges, is "prohibit," see ante at 485 U. S. 451 ,
a comprehensive term that in no way suggests that the intended
protection is aimed only at governmental actions that coerce
affirmative conduct. [ Footnote
4 ] Nor does the Court's distinction comport with the principles
animating the constitutional guarantee: religious freedom is
threatened no less by governmental action that makes the practice
of one's chosen faith impossible than by governmental programs that
pressure one to engage in conduct inconsistent with religious
beliefs. The Court attempts to explain the line it draws by arguing
that the protections of the Free Exercise Clause "cannot depend on
measuring the effects of a governmental action on a religious
objector's spiritual development," ibid., Page 485 U. S. 469 for in a society as diverse as ours, the Government cannot help
but offend the "religious needs and desires" of some citizens. Ante at 485 U. S. 452 .
While I agree that governmental action that simply offends
religious sensibilities may not be challenged under the Clause, we
have recognized that laws that affect spiritual development by
impeding the integration of children into the religious community
or by increasing the expense of adherence to religious principles
-- in short, laws that frustrate or inhibit religious practice --
trigger the protections of the constitutional guarantee. Both
common sense and our prior cases teach us, therefore, that
governmental action that makes the practice of a given faith more
difficult necessarily penalizes that practice, and thereby tends to
prevent adherence to religious belief. The harm to the
practitioners is the same regardless of the manner in which the
government restrains their religious expression, and the Court's
fear that an "effects" test will permit religious adherents to
challenge governmental actions they merely find "offensive" in no
way justifies its refusal to recognize the constitutional injury
citizens suffer when governmental action not only offends, but
actually restrains, their religious practices. Here, respondents
have demonstrated that the Government's proposed activities will
completely prevent them from practicing their religion, and such a
showing, no less than those made out in Hobbie, Thomas,
Sherbert, and Yoder, entitles them to the protections
of the Free Exercise Clause. B Nor can I agree with the Court's assertion that respondents'
constitutional claim is foreclosed by our decision in Bowen v.
Roy, 476 U. S. 693 (1986). There, applicants for certain welfare benefits objected to
the use of a Social Security number in connection with the
administration of their 2-year-old daughter's application for
benefits, contending that such use would "rob the [child's]
spirit," and thus interfere with her spiritual development. In
rejecting that challenge, Page 485 U. S. 470 we stated that

															"[t]he Free Exercise Clause simply cannot be understood to
require the Government to conduct its own internal affairs in ways that comport with the religious beliefs of particular
citizens." Id. at 476 U. S. 699 (emphasis added); see also id. at 716-717 (STEVENS, J.,
concurring in part) ("[T]he Free Exercise Clause does not give an
individual the right to dictate the Government's method of
recordkeeping"). Accordingly, we explained that Roy could

															"no more prevail on his religious objection to the Government's
use of a Social Security number for his daughter than he could on a
sincere religious objection to the size or color of the
Government's filing cabinets. The Free Exercise Clause affords an
individual protection from certain forms of governmental
compulsion; it does not afford an individual a right to dictate the
conduct of the Government's internal procedures. " Id. at 476 U. S. 700 (emphasis added).

															Today the Court professes an inability to differentiate Roy from the present case, suggesting that

															"[t]he building of a road or the harvesting of timber on
publicly owned land cannot meaningfully be distinguished from the
use of a Social Security number." Ante at 485 U. S. 449 .
I find this inability altogether remarkable. In Roy, we
repeatedly stressed the "internal" nature of the Government
practice at issue, noting that Roy objected to "the
widespread use of the social security number by the federal or
state governments in their computer systems, " 476 U.S. at 476 U. S. 697 (citation omitted; internal quotation marks omitted; emphasis
added), we likened the use of such recordkeeping numbers to
decisions concerning the purchase of office equipment. When the
Government processes information, of course, it acts in a purely
internal manner, and any free exercise challenge to such internal
recordkeeping in effect seeks to dictate how the Government
conducts its own affairs.

															Federal land use decisions, by contrast, are likely to have
substantial external effects that government decisions
concerning Page 485 U. S. 471 office furniture and information storage obviously will not, and
they are correspondingly subject to public scrutiny and public
challenge in a host of ways that office equipment purchases are
not. [ Footnote 5 ] Indeed, in
the American Indian Religious Freedom Act (AIRFA), 42 U.S.C. §
1996, Congress expressly recognized the adverse impact land use
decisions and other governmental actions frequently have on the
site-specific religious practices of Native Americans, and the Act
accordingly directs agencies to consult with Native American
religious leaders before taking actions that might impair those
practices. Although I agree that the Act does not create any
judicially enforceable rights, see ante at 485 U. S. 455 ,
the absence of any private right of action in no way undermines the
statute's significance as an express congressional determination
that federal land management decisions are not "internal"
Government "procedures," but are instead governmental actions that
can and indeed are likely to burden Native American religious
practices. That such decisions should be subject to constitutional
challenge, and potential constitutional limitations, should hardly
come as a surprise.

															The Court today, however, ignores Roy's emphasis on the
internal nature of the Government practice at issue there, Page 485 U. S. 472 and instead construes that case as further support for the
proposition that governmental action that does not coerce conduct
inconsistent with religious faith simply does not implicate the
concerns of the Free Exercise Clause. That such a reading is wholly
untenable, however, is demonstrated by the cruelly surreal result
it produces here: governmental action that will virtually destroy a
religion is nevertheless deemed not to "burden" that religion.
Moreover, in AIRFA, Congress explicitly acknowledged that federal
"policies and regulations" could and often did "intrud[e] upon
[and] interfer[e] with" site-specific Native American religious
ceremonies, Pub.L. 95-341, 92 Stat. 469, and in Roy we
recognized that this Act --

															"with its emphasis on protecting the freedom to believe,
express, and exercise a religion -- accurately identifies the
mission of the Free Exercise Clause itself."

															476 U.S. at 476 U. S. 700 .
Ultimately, in Roy we concluded that, however much the
Government's recordkeeping system may have offended Roy's sincere religious sensibilities, he could not challenge that system
under the Free Exercise Clause because the Government's practice
did not "in any degree impair Roy's freedom to
believe, express, and exercise ' his religion." Id. at 476 U. S.
700 -701 (quoting AIRFA, 42 U.S.C. § 1996) (emphasis
added). That determination distinguishes the injury at issue here,
which the Court finds so "remarkably similar" to Roy's , ante at 485 U. S. 456 ,
for respondents have made an uncontroverted showing that the
proposed construction and logging activities will impair their
freedom to exercise their religion in the greatest degree
imaginable, and Congress has "accurately identifie[d]" such
injuries as falling within the scope of the Free Exercise Clause.
The Court's reading of Roy, therefore, simply cannot be
squared with our endorsement -- in that very same case -- of this
congressional determination. More important, it lends no support to
the Court's efforts to narrow both the reach and promise of the
Free Exercise Clause itself. Page 485 U. S. 473 C In the final analysis, the Court's refusal to recognize the
constitutional dimension of respondents' injuries stems from its
concern that acceptance of respondents' claim could potentially
strip the Government of its ability to manage and use vast tracts
of federal property. See ante at 485 U. S.
452 -453. In addition, the nature of respondents'
site-specific religious practices raises the specter of future
suits in which Native Americans seek to exclude all human activity
from such areas. Ibid. These concededly legitimate
concerns lie at the very heart of this case, which represents yet
another stress point in the longstanding conflict between two
disparate cultures -- the dominant Western culture, which views
land in terms of ownership and use, and that of Native Americans,
in which concepts of private property are not only alien, but
contrary to a belief system that holds land sacred. Rather than
address this conflict in any meaningful fashion, however, the Court
disclaims all responsibility for balancing these competing and
potentially irreconcilable interests, choosing instead to turn this
difficult task over to the Federal Legislature. Such an abdication
is more than merely indefensible as an institutional matter: by
defining respondents' injury as "nonconstitutional," the Court has
effectively bestowed on one party to this conflict the unilateral
authority to resolve all future disputes in its favor, subject only
to the Court's toothless exhortation to be "sensitive" to affected
religions. In my view, however, Native Americans deserve -- and the
Constitution demands -- more than this.

															Prior to today's decision, several Courts of Appeals had
attempted to fashion a test that accommodates the competing
"demands" placed on federal property by the two cultures.
Recognizing that the Government normally enjoys plenary authority
over federal lands, the Courts of Appeals required Native Americans
to demonstrate that any land use decisions they challenged involved
lands that were "central" or "indispensable" to their religious
practices. See, e.g., Northwest Page 485 U. S. 474 Indian Cemetery Protective Assn. v. Peterson, 795 F.2d
688 (CA9 1986) (case below); Wilson v. Block, 228
U.S.App.D.C. 166, 708 F.2d 735, cert. denied, 464 U.S. 956
(1983); Badoni v. Higginson, 638 F.2d 172 (CA10 1980), cert. denied, 452 U.S. 954 (1981); Sequoyah v.
TVA, 620 F.2d 1159 (CA6), cert. denied, 449 U.S. 953
(1980); Crow v. Gullet, 541 F.
Supp. 785 (SD 1982), aff'd, 706 F.2d 856 (CA8), cert. denied, 464 U.S. 977 (1983). Although this
requirement limits the potential number of free exercise claims
that might be brought to federal land management decisions, and
thus forestalls the possibility that the Government will find
itself ensnared in a host of Lilliputian lawsuits, it has been
criticized as inherently ethnocentric, for it incorrectly assumes
that Native American belief systems ascribe religious significance
to land in a traditionally Western hierarchical manner. See Michaelsen, American Indian Religious Freedom
Litigation: Promise and Perils, 3 J. Law & Rel. 47 (1985);
Pepper, Conundrum of the Free Exercise Clause -- Some Reflections
on Recent Cases, 9 N.Ky.L.Rev. 265, 283-284 (1982). It is
frequently the case in constitutional litigation, however, that
courts are called upon to balance interests that are not readily
translated into rough equivalents. At their most absolute, the
competing claims that both the Government and Native Americans
assert in federal land are fundamentally incompatible, and unless
they are tempered by compromise, mutual accommodation will remain
impossible.

															I believe it appropriate, therefore, to require some showing of
"centrality" before the Government can be required either to come
forward with a compelling justification for its proposed use of
federal land or to forgo that use altogether. "Centrality,"
however, should not be equated with the survival or extinction of
the religion itself. In Yoder, for example, we treated the
objection to the compulsory school attendance of adolescents as
"central" to the Amish faith even though such attendance did not
prevent or otherwise render the practice of that religion
impossible, and instead simply Page 485 U. S. 475 threatened to "undermine" that faith. Because of their
perceptions of and relationship with the natural world, Native
Americans consider all land sacred. Nevertheless, the Theodoratus
Report reveals that respondents here deemed certain lands more
powerful and more directly related to their religious practices
than others. Thus, in my view, while Native Americans need not
demonstrate, as respondents did here, that the Government's land
use decision will assuredly eradicate their faith, I do not think
it is enough to allege simply that the land in question is held
sacred. Rather, adherents challenging a proposed use of federal
land should be required to show that the decision poses a
substantial and realistic threat of frustrating their religious
practices. Once such a showing is made, the burden should shift to
the Government to come forward with a compelling state interest
sufficient to justify the infringement of those practices.

															The Court today suggests that such an approach would place
courts in the untenable position of deciding which practices and
beliefs are "central" to a given faith and which are not, and
invites the prospect of judges advising some religious adherents
that they "misunderstand their own religious beliefs." Ante at 485 U. S. 458 .
In fact, however, courts need not undertake any such inquiries:
like all other religious adherents, Native Americans would be the
arbiters of which practices are central to their faith, subject
only to the normal requirement that their claims be genuine and
sincere. The question for the courts, then, is not whether the
Native American claimants understand their own religion, but rather
whether they have discharged their burden of demonstrating, as the
Amish did with respect to the compulsory school law in Yoder, that
the land use decision poses a substantial and realistic threat of
undermining or frustrating their religious practices. Ironically,
the Court's apparent solicitude for the integrity of religious
belief and its desire to forestall the possibility that courts
might second-guess the Page 485 U. S. 476 claims of religious adherents leads to far greater inequities
than those the Court postulates: today's ruling sacrifices a
religion at least as old as the Nation itself, along with the
spiritual wellbeing of its approximately 5,000 adherents, so that
the Forest Service can build a 6-mile segment of road that two
lower courts found had only the most marginal and speculative
utility, both to the Government itself and to the private lumber
interests that might conceivably use it.

															Similarly, the Court's concern that the claims of Native
Americans will place "religious servitudes" upon vast tracts of
federal property cannot justify its refusal to recognize the
constitutional injury respondents will suffer here. It is true, as
the Court notes, that respondents' religious use of the high
country requires privacy and solitude. The fact remains, however,
that respondents have never asked the Forest Service to exclude
others from the area. Should respondents or any other group seek to
force the Government to protect their religious practices from the
interference of private parties, such a demand would implicate not
only the concerns of the Free Exercise Clause, but also those of
the Establishment Clause as well. That case, however, is most
assuredly not before us today, and in any event cannot justify the
Court's refusal to acknowledge that the injuries respondents will
suffer as a result of the Government's proposed activities are
sufficient to state a constitutional cause of action. III Today, the Court holds that a federal land use decision that
promises to destroy an entire religion does not burden the practice
of that faith in a manner recognized by the Free Exercise Clause.
Having thus stripped respondents and all other Native Americans of
any constitutional protection against perhaps the most serious
threat to their age-old religious practices, and indeed to their
entire way of life, the Court assures us that nothing in its
decision "should be read to encourage governmental insensitivity to
the religious Page 485 U. S. 477 needs of any citizen." Ante at 485 U. S. 453 .
I find it difficult, however, 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 respondents' religion
impossible. Nor do I believe that respondents will derive any
solace from the knowledge that, although the practice of their
religion will become "more difficult" as a result of the
Government's actions, they remain free to maintain their religious
beliefs. Given today's ruling, that freedom amounts to nothing more
than the right to believe that their religion will be destroyed.
The safeguarding of such a hollow freedom not only makes a mockery
of the

															"policy of the United States to protect and preserve for
American Indians their inherent right of freedom to believe,
express, and exercise the[ir] traditional religions," ante at 485 U. S. 454 (quoting AIRFA), it fails utterly to accord with the dictates of
the First Amendment. I dissent.

															[ Footnote 1 ]

															Respondent Indians were joined in this suit by the State of
California as well as various environmental groups. For the sake of
simplicity, I use the term "respondents" to refer exclusively to
the affected Native American religious practitioners.

															[ Footnote 2 ]

															The Court overlooks this finding when it suggests that the only
protective measure the Service did not take was the untenable one
of "abandoning its project entirely, and thereby leaving the two
existing segments of road to dead-end in the middle of a National
Forest." Ante at 485 U. S. 454 .
Far from finding that option untenable, the District Court
expressly concluded that the segments had independent economic and
administrative utility, and thus that past investments in the paved
sections did not justify construction of the Chimney Rock segment. See 565 F. Supp. at 596.

															[ Footnote 3 ]

															Remarkably, the Court treats this factual determination as
nothing more than an assumption or "prediction," ante at
451, and suggests that it is "less than certain that construction
of the road will be so disruptive that it will doom [respondents']
religion." Ibid. Such speculation flies in the face of the
most basic principles of appellate review, see Fed.Rule
Civ.Proc. 52(a) ("Findings of fact . . . shall not be set aside
unless clearly erroneous"), and is wholly at odds with the
well-settled rule that this Court will not disturb findings of
facts agreed upon by both lower courts unless those findings are
clearly in error. United States v. Ceccolini, 435 U.
S. 268 , 435 U. S. 273 (1978). Even if our review were not governed by such rules,
however, the mere fact that a handful of the Native Americans who
reside in the affected area do not oppose the road in no way casts
doubt upon the validity of the lower courts' amply supported
factual findings, particularly where the members of this minority
did not indicate whether their lack of objection reflected their
assessment of the religious significance of the high country or
their own apathy towards religious matters generally.

															[ Footnote 4 ]

															The Court is apparently of the view that the term "prohibit" in
the Free Exercise Clause somehow limits the constitutional
protection such that it cannot possibly be understood to reach
" any form of government action that frustrates or
inhibits religious practice.'" Ante at 485 U. S. 456 (quoting supra at 485 U. S. 459 ) (emphasis added by majority). Although
the dictionary is hardly the final word on the meaning of
constitutional language, it is noteworthy that Webster's includes,
as one of the two accepted definitions of "prohibit," "to prevent
from doing something." Webster's Ninth New Collegiate Dictionary
940 (1983). Government action that frustrates or inhibits religious
practice fits far more comfortably within this definition than does
the Court's affirmative compulsion test. [ Footnote 5 ]

															Thus, for example, agencies proposing to use or permit
activities on federal lands must comply with various public notice,
consultation, and impact evaluation requirements imposed by the
National Historic Preservation Act, 16 U.S.C. §§ 470f,470h-2(f);
the Archaeological Resources Protection Act, 16 U.S.C. § 470aa et seq.; the National Environmental Policy Act of 1969, 42
U.S.C. § 4321 et seq.; the Wilderness Act, 16 U.S.C. §
1131 et seq.; and the Federal Water Pollution Control Act,
33 U.S.C. § 1251 et seq. Concededly, these statutes
protect interests in addition to the religious interests Native
Americans may have in a pristine environment, and of course the
constitutional protection afforded those religious interests is not
dependent upon these congressional enactments. Nevertheless, the
laws stand as evidence, if indeed any were needed, that federal
land use decisions are fundamentally different from government
decisions concerning information management, and that, under Roy, this difference in external effects is of
constitutional magnitude.