Editor’s note:This story is part of a series that illuminates the historical context of tribal law in the Pacific Northwest and examines cases where tribes and tribal members have used federal courts to expand their rights under federal law.
On the shoulder of a busy mountain highway an hour east of Portland, tribal elders Carol Logan and Wilbur Slockish gazed across four lanes of traffic at the sacred site they have fought for decades to protect: Ana Kwna Nchi Nchi Patat, or Place of Big Big Trees, where for centuries Indigenous people camped and rested while traveling an ancient road over Mt. Hood.
Logan, a Clackamas descendant and member of the Confederated Tribes of Grand Ronde, and Slockish, hereditary chief of the Klickitat/Cascade Tribe and member of the Yakama Nation, keep the old ways. At burial places like Ana Kwna Nchi Nchi Patat, they sing specific songs, pray and leave offerings, so those buried there are remembered and will be able to rise up one day when the Creator calls to them.
But the government cut down the big, big trees and removed (then subsequently lost) the stones that made two ancient altars in the center of the grove. It dumped fill dirt in huge mounds over the burial site and installed a guardrail that blocked the spot where Slockish used to park his truck to access that side of the highway. It was all part of a project to widen Highway 26, in order to add a center turn lane.
“Should we make a dash for it?” Logan shouted over the soft roar of Sunday afternoon traffic, the sound of people rushing back to the city, their weekend adventures at an end. Slockish just shook his head. No.
“We shouldn’t go there anyway,” Logan yelled. “A ceremony needs to be done before people can return. It needs to be taken care of because they disturbed our old ones.”
Logan and Slockish, both 78, squinted in the glare of the bright February sun. Moments later, they watched as a woman in a red puffy jacket strolled over the mounds covering the burials, a labradoodle trotting at her side.
Logan, Slockish and Chief Jonny Jackson, Yakama member and hereditary chief of the Klickitat/Cascade Tribe, sued the State of Oregon for bulldozing the sacred site in 2008. They asked the Oregon Department of Transportation (ODOT) to rebuild the stone altar, replant the trees and install interpretive signs describing the spot’s significance. But the government claimed that it was too late to repair the site because it had already been destroyed.
A federal judge dismissed the lawsuit, and Logan and Slockish appealed. But a panel of judges with the U.S. Court of Appeals for the Ninth Circuit in November 2021 declared the elders’ claim “moot,” reasoning that the government can no longer right its wrong because the stone altars are lost and the big trees are cut.
On Oct. 7, Logan and Slockish asked the U.S. Supreme Court to review the case.
Destroyed or not, the elders and their families still visit Ana Kwna Nchi Nchi Patat in order to satisfy their religious obligations.
“We have a responsibility to take care of our sites, our burials and the people laying there,” Slockish said.
The elders have taken to parking at a picnic area across the highway and down a hundred yards or so, at a place the Bureau of Land Management calls the Wildwood Recreation Site. They usually park just off the highway, but when they visited in February they discovered an admonishment painted in big yellow letters on the pavement: NO PARKING. The area was blocked by a low metal fence decorated with four steel salmon.
Behind the metal fence, there was a new interpretive sign. It doesn’t memorialize how this spot was used by countless generations of Indigenous travelers, passing along an ancient road that connects the salmon runs on one side of the mountain with the camas fields on the other. It doesn’t describe the historic site across the road, where people camped near a waterfall, harvested huckleberries and, if necessary, buried anyone who didn’t make the full journey.
Instead, the new plaque described the Barlow Trail — which Sam Barlow ran as a toll road at the end of the Oregon Trail, likely after trading gifts to local Indigenous people in exchange for their knowledge of the old road.
“Maybe that’s what they thought we meant when we asked for signage here,” Slockish joked.
‘They can’t destroy the spirits’
Court documents show communications about the protection of Ana Kwna Nchi Nchi Patat between various tribal elders, the Federal Highway Administration (FHA) and ODOT that go back to the 1980s. In 1991, Yakama Nation Tribal Council Chairman Wilferd Yallup told ODOT in a recorded meeting that the stone pillars were burial cairns, marking an ancient gravesite, according to court records. Yallup died in 2004.
But the government went ahead with its highway widening project, based on consent from some tribal officials and spotty efforts to obtain consent from others.
In February 2008, contractors hired by ODOT and the FHA started cutting down the old-growth Douglas fir trees that surrounded Ana Kwna Nchi Nchi Patat. Heavy machinery bashed into one of the altars, scattering its rocks. A week later, the same thing happened to the other altar. Then ODOT hired A-Win Masonry to remove the altars, which Logan said were made of four-foot stacks of perfectly round lava rocks, held together by sand. The government says it doesn’t know what happened to the altars after A-Win removed them.
Logan complained to the Advisory Council on Historic Preservation (ACHP) that ODOT hadn’t reviewed the project under Section 106 of the National Historic Preservation Act. But ACHP told ODOT to move forward anyway, since construction had already begun and, while individual tribal members had complained, no federally recognized tribe’s government had issued a formal complaint.
Slockish and Logan sued that autumn. They were joined in the case by Chief Jackson and the Cascade Geographic Society. Jackson died in 2020 after being hospitalized for Covid-19. Michael Jones, a historian and the founder of the Cascade Geographic Society, died the same year.
U.S. District Judge Marco Hernandez dismissed the lawsuit in 2021, based on a recommendation from Magistrate Judge Youlee Yim You. You found that the government was right to disregard the elders, because of the consultation it had done with tribal officials.
“It would debase a tribe’s sovereignty for a tribal member, even someone within the zone of interest under NHPA, to override a tribe’s government-to-government consultation authority in what would amount to a veto of the tribe’s official position,” You wrote.
Legal scholar Robert Miller, Eastern Shawnee, says that reasoning is “very odd.”
“She is in essence saying that federal and state citizens cannot bring lawsuits, even when they are ‘within the zone of interest’ of the issues in a case because the federal or state governments have already taken some contrary position on that matter,” says Miller, law professor at the Sandra Day O’Connor College of Law at Arizona State University. “These private individuals absolutely have the right to bring their lawsuit whether or not their specific tribal governments would agree with their position.”
You also tossed out claims under the Religious Freedom Restoration Act, finding that the complete destruction of their sacred site doesn’t represent a “substantial burden” on their religious practices.
The elders “have not established that they are being coerced to act contrary to their religious beliefs under the threat of sanctions,” You wrote.
Slockish and Logan appealed. At oral arguments before a three-judge panel of the Ninth Circuit Court of Appeals in November 2021, Justice Department lawyer Joan Pepin said that the case is now moot, since the government has already destroyed the sacred site.
“At this point, these features they say made their site sacred are irretrievably gone,” Pepin said. “The stones — nobody knows what happened to them and they cannot be brought back.”
Ruling one week after the hearing, the Ninth Circuit affirmed You’s ruling. The appeal judges didn’t address the religious freedom claims, or weigh in on whether Slockish and Logan have a right to challenge government actions on their own, even absent support from tribal officials. The judges side-stepped those issues by finding that there is nothing the government can do now to restore Ana Kwna Nchi Nchi Patat.
Logan says that’s not true because the government could remove the dirt berm it piled atop them. It could replant the Douglas firs and allow the elders to rebuild the altars — even if they have to find new stones to do so.
“No matter what, it’s still a sacred site,” Logan said. “No matter what. They can’t destroy the spirits. They can’t destroy the songs.”
The ruling could set a dangerous precedent, according to the National Congress of American Indians (NCAI), a tribal representative organization that formed in 1944 to protect tribal sovereignty during the Termination Era, when the federal government sought to end the existence of tribal nations.
In an amicus brief, NCAI called on the Ninth Circuit to correct the federal court’s ruling that the government’s actions didn’t “substantially burden” Slockish and Logan’s ability to practice their religion — a requirement under the Religious Freedom Restoration Act (RFRA).
“Failing to recognize destruction as a substantial burden under RFRA would grant the government license to eviscerate without compunction sacred sites across the country, like draining the Medicine Lake Highlands in California, blockading the Kootenai Falls in Montana, or bulldozing the Blythe Geoglyphs in the Sonora Desert,” the amicus brief states. “The next time an Indigenous sacred site on federal land gets in the government’s way, the district court’s logic encourages nothing less than obliteration.”
“Left to stand, the district court’s approach would gut Native American religious freedom and undermine RFRA,” NCAI’s brief continues. “It would also incentivize government agencies to avoid any research, analysis, or determination of minimizing harm, because they are confident that outright destruction gives them a free pass under RFRA to do as they please.”
According to NCAI, the ruling effectively allows the government to say: “We never forced you to make a choice to change your religious expression but simply made that choice for you.”
Now, the elders await word on whether the U.S. Supreme Court will review the case.
A tradition of test cases
Tribal sovereignty and government consultation requirements have been strengthened over the decades by just these types of cases — those filed by individual Indigenous people, with or without the support of their tribal government. Tribal members have strategically positioned themselves for arrest while hunting or fishing, in order to set up test cases that have ultimately vindicated tribal rights.
It’s a tradition that has a strong presence in the Columbia River Basin, going back to Sampson Tulee’s 1938 arrest for fishing outside the Yakama reservation without a state license. Because of his arrest, the U.S. Supreme Court ruled in 1942 that states can’t require tribal members with treaty fishing rights to pay for fishing licenses, since treaty rights supersede state law.
More recently, Rick Desautel turned himself in for illegally killing an elk that roamed his ancestral hunting grounds. Desautel is a member of the Confederated Tribes of the Colville Reservation whose Sinixt homelands straddle Canada’s border with the United States. The Canadian government in 1956 declared the Sinixt “extinct,” but Desautel’s arrest launched a decade-long legal battle that established Sinixt rights in British Columbia.
And it’s a tactic Wilbur Slockish knows well. In 1982, he was arrested while fishing alongside David Sohappy Sr., who had brought the 1968 lawsuit Sohappy v. Smith, winning a fishing rights ruling from U.S. District Judge Robert Belloni. That ruling was later strengthened by the landmark Boldt decision, which affirmed the rights of tribes that had reserved salmon fishing rights in their treaties, and clarified that tribes with treaty salmon fishing rights are entitled to half the approved salmon harvest each year.
Slockish served three years in prison after his arrest with Sohappy in the 1982 sting carried out by the National Marine Fisheries Service known as Salmonscam. Federal agents claimed Sohappy, Slockish and others were fishing illegally, but Slockish says there’s only one kind of fishing regulation he recognizes.
“We had the sovereignty to do what we wanted to do within the restrictions and customs that are given by the Creator,” Slockish says. “And we practiced conservation because there were people that depended on fish all throughout the Columbia River Basin.”
Despite a prison sentence that meant missing his youngest son’s first words and steps, Slockish says it was worth it.
“Now we’ve got allies in Congress, we’ve got allies worldwide,” Slockish says. “Now people are starting to understand that we’ve got reserved rights, not that the courts gave them to us. So I think we accomplished a lot with that. And I’d do it again.”
“If I was younger,” he adds with a chuckle.
‘We’re surrounded by sacred sites’
Barlow Road was the first wagon road over Mt. Hood, but it followed a path trod for centuries by Indigenous peoples. People from numerous tribes in the area used the road to travel between Celilo Falls east of the mountain and Willamette Falls to the west, where they would fish for salmon and lamprey, trade and visit relatives. They used it to make their way to the camas fields in the Willamette Valley and to access the huckleberry groves on the mountain. It was a trade route long before the arrival of Sam Barlow, who widened it for wagons and set up toll booths along the way. Today, this ancient road is called Highway 26.
“This whole highway is a sacred site,” Logan said in February, gesturing to four lanes of traffic.
In 1845, Barlow’s party of settlers stopped at Tygh Valley, on the east side of the mountain. An established wagon road continued north to The Dalles, where the usual route to the Willamette Valley — floating the Columbia River — was expensive and dangerous. It often ended in disaster.
“Recollections of Seventy Years,” written by Barlow’s son and daughter, refers to the “old Indian trail” that Barlow and Joel Palmer widened and dubbed the Barlow Road.
“This was the supposed terminus of the wagon road for all time,” William and Mary Barlow wrote in a 1902 essay. “An Indian trail was known and used by many for the transportation of household goods, etc., by pack horses, or for cattle droves, but no man had been courageous enough to undertake the supposed impossible journey.”
Barlow and Palmer burned and hacked their way through the forest, widening the ancient road to make it passable for wagons. Barlow started charging $5 to cross over the mountain. Soon, news of a safer route to the Willamette Valley enticed a flood of new settlers.
That wasn’t an unusual sequence of events, according to historian Roxanne Dunbar-Ortiz.
“Native peoples left an indelible imprint on the land with systems of roads that tied nations and communities together across the entire landmass of the Americas,” Dunbar-Ortiz wrote in “An Indigenous People’s History of the United States.”
Ortiz went on to quote Cherokee scholar David Wade Chambers:
“The first thing to note about early Native American trails and roads is that they were not just paths in the woods following along animal tracks used mainly for hunting,” Chambers said. “Neither can they be characterized simply as the routes that nomadic peoples followed during seasonal migrations. Rather, they constituted an extensive system of roadways that spanned the Americas, making possible short, medium and long-distance travel. That is to say, the Pre-Columbian Americas were laced together with a complex system of roads and paths which became the roadways adopted by the early settlers and indeed were ultimately transformed into major highways.”
Soon after the establishment of Barlow Road, Congress passed the Oregon Donation Land Act, which gave settlers 320-acre land claims when they arrived in the Oregon Territory. That was in 1850 — before the government had secured treaties ceding land from Indigenous people still living in their homelands.
A decade after his role in helping to establish Barlow Road, Joel Palmer, by then superintendent for Indian Affairs for Oregon, negotiated the Treaty of the Willamette Valley, which forcibly removed many of the people who originally used that road, and those whose land it ran through.
Logan said there are many sacred sites along the ancient roads now paved and labeled Highways 26 and 35.
“There are other sites similar to this one,” Logan said. “A lot of them aren’t far off the road, because they came down our trail and invaded our burial grounds and fishing sites. There’s a place where chiefs gathered. Places where people did ceremony or fished or hunted. We’re surrounded by sites. Our holy, sacred mountain right here is one of them.”
Logan protects the specific locations of those sites, out of fear that they too would be destroyed.
“Look what happens,” she said, gesturing across the road at Ana Kwna Nchi Nchi Patat. “We want our places recognized, but how are we going to do that if we tell them and they do this?”
This series is supported by the Data-Driven Reporting Project.