In order for this ruling not to produce a catastrophic snowball effect,
it must be overturned in appeal. Because it is a constitutional argument,
it cannot be directly remedied by further executive orders, nor by
congressional legislation. It is possible that other courts will choose to
ignore the ruling, deeming it to apply to a very specific instance, but
this is very unlikely
Unfortunately, there is a sense in which this ruling can be seen to be
justifiable under the U.S. Constitution. The situation, however, is not
hopeless. Appeal must be made on the basis that it is not really a
religious matter, but a cultural, socio-political matter involving the
Federal Government and their trust responsibilities towards those nations
which were here before it.
Just because our society separates the institutions of religion, and
politics, among others, does not mean that all societies do so. In fact,
most non-European-derived cultures see all of these social elements as
intertwined to the point of being simply parts of a holistic totality (in
fact, centuries ago we did too). For this reason, it is arguable that
preserving Native sacred sites is not an act of religious favoritism by
the federal government, but one of political duty towards those Nations
which it is legally bound to acknowledge.
What is most likely, in the end, is that this case will be nothing more
than another in a long line of infuriating setbacks to the cause of Native
Rights. Although it seems alarming, a token of broken promises, or more
accurately, promises the federal government is unable to keep, it may
actually lead to some constitutional decisions in the higher courts which
could play out favorably for Native Peoples all over the United States.