Tribal elders lose their appeal over land on Mount Hood they consider sacred

Two tribal elders lost their latest attempt to regain a patch of land on Mount Hood they consider sacred.

In a five-page decision, the 9th Circuit U.S. Court of Appeals dismissed the case on Wednesday. It has been pending on appeal since May. The two sides argued their case before the court last week. 

The court said the claims by Wilbur Slockish, hereditary chief of the Klickitat Tribe of the Yakama Indian Nation, and Carol Logan, an elder with the Confederated Tribes of Grand Ronde, were moot.

The pair, and another tribal chief who recently died of Covid-19, sued the Federal Highway Administration in U.S. District Court in Portland in 2008 to restore about an acre next to U.S. Highway 26 about 13 miles from Government Camp. The highway administration added a left-hand turn lane at the spot that year for safety reasons after a number of traffic accidents, including fatalities.

But the elders said in their lawsuit that the site had always been sacred to them. 

“The site has been used by indigenous peoples since time immemorial and by plaintiffs personally since the 1940s for core religious ceremonies that cannot take place anywhere else,” a brief said.

The elders asked the court for the site to be restored and a declaration from the government that it had violated their religious freedom. But the court pointed out that the Oregon Department of Transportation, which owns the right-of-way for the highway, was dismissed from the case in 2012. 

“The remaining defendants are federal agencies that cannot order the outright removal of the challenged highway expansion,” the judgment said.

The U.S. Department of Transportation, Federal Highway Administration, U.S. Department of the Interior, Bureau of Land Management and federal Advisory Council on Historic Preservation were the defendants on the appeal. 

The court said that the highway at that spot was originally altered for safety reasons and that any change sought by the plaintiffs would affect that safety. The order said that the agencies were protected by federal sovereign immunity.

“Because we cannot order any effective relief, this appeal is moot,” the court ruled.

The elders’ attorney, Luke Goodrich at Becket, a nonprofit law firm in Washington D.C., did not respond Wednesday to a request for comment. On Twitter, he said: “Just days before Native American Heritage Day, the Ninth Circuit has ruled that the government can keep shrugging off responsibility for destroying a Native American sacred site near Mt. Hood, Oregon.”