In Williams v. Hansen, (10th Cir., July 21, 2021), the U.S. 10th Circuit Court of Appeals held that a suit by Native American inmates against prison officials should not have been dismissed on qualified immunity grounds. Banning Native American religious services for at least 9 days and the use of tobacco for services for 30 days could have violated a clearly established constitutional right of prisoner to freely exercise their religious beliefs.
Objective coverage of church-state and religious liberty developments, with extensive links to primary sources.
Thursday, July 22, 2021
Sunday, March 07, 2021
9th Circuit Refuses Emergency Injunction For Apache Tribal Members
In a 2-1 decision in Apache Stronghold v. United States, (9th Cir., March 5, 2021), the U.S. 9th Circuit Court of appeals refused to issue an injunction pending appeal in the attempt by Apache tribal members to prevent the transfer of sacred Apache ceremonial ground to Resolution Copper. At the beginning of this month, the Biden Administration delayed the pending transfer by withdrawing a previous environmental impact statement. (See prior posting.) The 9th Circuit majority said in part:
The Government has averred that USFS “will not proceed to convey any right, title, and/or interest... to Resolution Copper” until after publication of a new FEIS, which will take “months.” The Government has also stated, under penalty of perjury, that USFS “will provide 30-days advance notice” to Apache Stronghold prior to the publication of a new FEIS. These representations mean that Apache Stronghold has not shown that it “needs relief within 21 days to avoid irreparable harm” pursuant to its request for an emergency stay.
Judge Bumatay filed a lengthy dissent, saying in part:
We are asked to trust the Government that, left to its own devices, it will not transfer the land to Resolution Copper in the near future. Faced with such a substantial harm to the Western Apaches’ free exercise rights, we should require more than the Government’s say-so.
Wednesday, March 03, 2021
School's Refusal To Allow Modified Graduation Cap Upheld
In Waln v. Dysart School District, 2021 U.S. Dist. LEXIS 38345 (D AZ, Feb. 28, 2021), an Arizona federal district court rejected free exercise, free speech and equal protection challenges to a school district's refusal to allow a graduating senior to wear a decorated cap at graduation ceremonies. The student was a member of the Sioux tribe and for cultural and religious reasons wanted to wear a beaded cap adorned with an eagle feather. The school district allowed Native American students to wear in their hair, or as a necklace or jewelry, but did not permit altered commencement caps. The court said in part:
[A]dopting an appearance of neutrality with regard to religion or cultural viewpoints, and the avoidance of controversy, have been deemed reasonable bases for subject-matter limitations, such as limitations on religious expression, on a student's free speech rights.... In this matter, all expressive speech, including but not limited to religious speech, was prohibited by the dress code blanketly prohibiting the augmentation of graduation caps, and the restriction was reasonable and related to the purpose of the forum. And, most notably, the prohibition of any adornment of any kind on a student's graduation cap during the commencement ceremonies was content-neutral.
Tuesday, March 02, 2021
USDA Delays Transfer of Sacred Apache Ceremonial Site
As previously reported, last month an Arizona federal district court refused to enjoin a federal conveyance of a sacred Apache ceremonial ground know as Oak Flat to Resolution Copper. Yesterday the Department of Agriculture announced that it has delayed the transfer by rescinding its previous environmental impact statement, saying in part:
The recent Presidential Memorandum on tribal consultation and strengthening nation to nation relationships counsels in favor of ensuring the Forest Service has complied with the environmental, cultural, and archaeological analyses required. USDA has concluded that additional time is necessary to fully understand concerns raised by Tribes and the public.... Because the Resolution Copper Mine and Land Exchange Project was directed under the 2015 National Defense Authorization Act, long term protection of the site will likely require an act of Congress. USDA and the Forest Service cannot give a precise length of time for completing the re-initiation of consultation but consultations such as this generally take several months.
Arizona Republic reports on the USDA's action.
Thursday, January 14, 2021
Apache Leaders Sue To Prevent Forest Service Transfer of Religious Site
Suit was filed this week in an Arizona federal district court on behalf of traditional Apache religious and cultural leaders seeking to prevent the U.S. Forest Service from transferring to mining companies a parcel of land used by the Western Apache Peoples for traditional religious ceremonies. The complaint (full text) in Apache Stronghold v. United States, (D AZ, filed 1/12/2021) alleges in part:
The deliberate and direct effect of the Defendants’ publicly stated plans and planned actions is to illegally annihilate the religious freedom rights of the Western Apache Peoples at a sacred and actively utilized religious place and traditional Western Apache cultural property known to the Apache since time immemorial as Chi’chil BiĆdagoteel [or] as it is commonly known: “Oak Flat.” ***
[T]he Forest Service ... has suddenly publicly stated for the first time its intent to publish a Final Environmental Impact Statement ... on ... January 15, 2021. That ... will immediately enable the Forest Service to attempt to convey a 2,422-acre parcel of “Forest Service land” to an entity owned entirely by foreign mining corporations, pursuant to a mandate in Section 3003 of the “Cromnibus” National Defense Authorization Act of 2015 ... slipped in at the 11th hour with a total federal government operational shutdown looming....
Apache Stronghold issued a press release announcing the filing of the lawsuit.
Wednesday, December 23, 2020
New Hampshire Supreme Court Says State Constitution Requires Strict Scrutiny of Free Exercise Infringements
In State of New Hampshire v. Mack, (NH Sup. Ct., Dec. 22, 2020), the New Hampshire Supreme Court held that the state Constitution's elaborate guarantee of free exercise of religion so long as one does not "disturb the public peace" should be read to require strict scrutiny. The court vacated a trial court's refusal to dismiss a drug prosecution brought against defendant who was a member of the Oklevueha Native American Church. Defendant was convicted of possession of psilocyn and psilocybin for use in religious rituals. The court concluded that the state constitution gives greater free exercise protection against burdens from neutral generally applicable laws than does the U.S. Constitution under the Smith case. The court said in part:
We ... conclude that when religious practices violate a generally applicable law, our State Constitution ... demands that “there . . . be a balancing of [the] competing interests.” ... [W]e choose to adhere to our traditional formulation of strict judicial scrutiny — requiring the State to demonstrate that its action is “necessary to achieve a compelling governmental interest and narrowly tailored to meet that end.” ... Accordingly, under Part I, Article 5, once an individual establishes that the government action substantially burdens his or her sincere religious practice, ... the burden shifts to the State to show both that the government action is necessary to achieve a compelling government interest, and is narrowly tailored to meet that end....
The Union Leader reports on the decision.
Wednesday, October 07, 2020
Dakota Access Pipeline Protesters Can Move Ahead On Free Speech, But Not Free Exercise, Claims
In Thunderhawk v. County of Morton, North Dakota, (D ND, Sept. 1, 2020), plaintiffs challenged on numerous constitutional grounds North Dakota's closure of Highway 1806 which was used by the Standing Rock Sioux Tribe and thousands of its supporters to access campsites set up to protest construction of the Dakota Access Pipeline. In a 101-page opinion (which has just been widely made available) the court allowed plaintiffs to move ahead with their claims that the closure prevented them from engaging in protected speech and amounted to a prior restraint on speech. The court however rejected plaintiffs' free exercise claims, saying in part:
While the Plaintiffs provided facts in the Amended Complaint to suggest the Defendants’ actions in closing the road may not meet strict or intermediate scrutiny for their free speech claims, they have failed to allege facts suggesting the road closure may not meet rational basis as it relates to their free exercise claim. Because the Plaintiffs have failed to meet this burden, and as a result of neither Smith exceptions applying in this case to heighten the standard to strict scrutiny, Claim II is dismissed.
The court also rejected a variety of other constitutional challenges including right to travel and commerce clause claims. Turtle Talk blog has links to all the pleadings in the case.
Tuesday, November 19, 2019
In Canada, Parent's Suit Challenges Classroom Demonstration of Smudging Ceremony
Friday, January 11, 2019
Mormon Church Sued In Tribal Court Over Abuse of Student
Friday, November 30, 2018
Hopi Tribe Loses Public Nuisance Challenge To Snowbowl Expansion
because a particular place’s religious importance is inherently subjective, ... courts are ill-equipped to determine whether “one form of incidental interference with an individual’s spiritual activities” should be analyzed differently from that of another....
At its core, the special injury requirement serves a gatekeeping function that prevents courts from deciding issues under the guise of public nuisance claims when such issues are best left to public officials, a pivotal principle in federal cases grappling with religious freedom challenges to public land uses.Chief Justice Bales, joined by Justice Bolick, dissented, saying in part:
[T]he Hopi face the destruction and desecration of some of their most sacred locations and practices. This is the harm that the majority claims is no different than that suffered by the public at large.... But the general public does not have millennia of religious practice in the area that will be covered in a fine film of reclaimed sewage. Nor does the general public have rights of access and use - rooted in Hopi tradition and cultural practices - recognized by federal statutes.Arizona Republic reports on the decision.
Sunday, October 28, 2018
Prison Cannot Limit Participation In Native American Religious Ceremonies To Ethnic Native Americans
Here, the Court is satisfied that Plaintiff's Native American religious beliefs are sincerely held. Further, AR 810 is a substantial burden on Plaintiff's free exercise as he is Mexican-American and cannot show that he is Native American or provide documentation that he is registered or affiliated with any recognized tribe.... Defendants have not shown that any safety or security issues are likely to arise from Plaintiff's participation in Native American religious ceremonies.The court issued a preliminary injunction requiring that defendants permit Ernest Guardado "to participate in Native American religious ceremonies with the Native American practitioners including sweat lodge, prayer circle, drum circle, smudging, sacred pipe, and access to the Native Indian grounds."
Wednesday, June 13, 2018
Court Says Tribe Has Standing, But Did Not Prove Its RFRA Claim
Tuesday, May 22, 2018
Wisconsin Supreme Court, Splitting Equally, Upholds Protection of Indian Graves
Wednesday, May 16, 2018
Native Americans Sue To Keep Use of Prayer Ground
Defendant Township of Mahwah is imposing cumulative crippling fines against plaintiff Ramapough of $12,500 per day, totalling $480,000 as of May 14, 2018, to end religious use of property, to eliminate sacred sites, and prevent assembly.
... By letter dated September 5, 2017 Mahwah sent a letter purporting to revoke a 2012 zoning permit that it failed to disclose to Ramapough or State Courts recognizing religious use and logs with masks carved in them ... unilaterally and secretly without notice nor opportunity to be heard.
... Defendant Polo Club, in furtherance of this campaign to pressure the Ramapough Nation into ceasing its religious practices, to assemble and in fact to yield up the land, has made numerous unfounded complaints to the police department and used the New Jersey municipal "private warrant" process to bring criminal charges against Ramapough members.Plaintiffs claim that these actions violate their 1st and 14th Amendment rights, RLUIPA and international treaties. Courthouse News Service reports on the lawsuit.
Friday, May 04, 2018
Rulemaking Petition Seeks Changes In Eagle Feather Restrictions
The Department’s regulations are so restrictive that they ban all kinds of sincere religious behavior. Today, nearly every bird species native to North America is federally protected. So, a grandmother who bestows an eagle feather on her nonenrolled grandson to honor his college graduation turns both herself and her grandson into criminals. A Native American teenager adopted by a non-Native family breaks the law when he prays with a feather to reconnect with the spirits of his ancestors. And a member of a state-recognized tribe is subject to prosecution merely for possessing a single protected feather....
Effective reform in this area would do three things: First, it would broaden the Morton Policy to include all sincere religious believers who use federally protected feathers in their religious exercise—as both the Constitution and the Religious Freedom Restoration Act (RFRA) require. Second, it would officially promulgate this policy as a formal rule rather than rely on informal guidance, ending decades of legal limbo that has had disastrous consequences for many Native Americans. Third, it would empower Native American tribes to help combat the illegal commercialization of federally protected feathers.The petition grows out of the settlement of a suit challenging current rules. (See prior related posting.)
Tuesday, March 06, 2018
Destruction of Native American Burial Site Did Not Violate RFRA
As in Lyng and Navajo Nation, plaintiffs contend that the sacred site at issue, which is located on federal land, has been desecrated and destroyed. Yet, as in those cases, plaintiffs have not established that they are being coerced to act contrary to their religious beliefs under the threat of sanctions or that a governmental benefit is being conditioned upon conduct that would violate their religious beliefs. Without these critical elements, plaintiffs cannot establish a substantial burden under the RFRA.Becket issued a press release announcing the decision.
Friday, February 09, 2018
Hopi's Religious Concerns Give Them Standing To Challenge Snowbowl Water Use
At issue is whether the Tribe sufficiently alleged standing to maintain a common law public nuisance claim. For a private party to bring a claim of public nuisance, it must allege both an interference with a right common to the public and a special injury different in kind from that of the public. The parties do not dispute that the Tribe sufficiently alleged that the use of reclaimed wastewater interferes with the public’s right to use and enjoy the Peaks. Because we find the Tribe sufficiently alleged the use of reclaimed wastewater causes its members a special injury, different in kind than that suffered by the general public, by interfering with places of special cultural and religious significance to the Tribe, we reverse the trial court’s dismissal....
Friday, July 07, 2017
Tribes Sue to Stop End of Protection For Yellowstone Grizzly Bears
The Native American plaintiffs argue that trophy hunting for grizzly bears goes against their religious and spiritual beliefs. The lawsuit filed June 30 asks a federal judge to rule that the U.S. Fish and Wildlife Service must consider the Native Americans' beliefs and consult adequately with them before removing grizzly protections that have been in place since 1975....
Basing a legal challenge of an Endangered Species Act decision on religious beliefs and inadequate tribal consultation has not been tried before, said the plaintiffs' attorney, Jeff Rasmussen.
Saturday, June 17, 2017
Environmental Impact Challenge To Dakota Access Pipeline Is Partially Successful
Although the Corps substantially complied with NEPA in many areas, the Court agrees that it did not adequately consider the impacts of an oil spill on fishing rights, hunting rights, or environmental justice, or the degree to which the pipeline’s effects are likely to be highly controversial.
To remedy those violations, the Corps will have to reconsider those sections of its environmental analysis upon remand by the Court. Whether Dakota Access must cease pipeline operations during that remand presents a separate question of the appropriate remedy, which will be the subject of further briefing.Red Green and Blue reports on the decision.
Wednesday, March 08, 2017
Court Rejects RFRA Challenge To Dakota Access Pipeline
Because of the Plaintiff’s delay in raising this religious-exercise objection and the negative impact of that delay on the Corps and Dakota Access, the Court concludes that the requested preliminary-injunctive relief is barred by laches.Moving to the merits, the court also concluded that the Tribe has failed to demonstrate a likelihood of success, saying in part:
The government action here — i.e., granting the easement to Dakota Access and thereby enabling the flow of oil beneath Lake Oahe — does not impose a sanction on the Tribe’s members for exercising their religious beliefs, nor does it pressure them to choose between religious exercise and the receipt of government benefits. Cheyenne River argues that whether it has been subjected to such sanction or pressure is irrelevant ... and contends instead that it is sufficient for purposes of showing substantial burden that the effect of the government’s action is to prevent the Tribe’s members from performing required religious sacraments at Lake Oahe.... That argument, however, is directly at odds with Supreme Court precedent.The Hill reports on the decision.