Texas Supreme Court Hears Arguments on Interpretation of "Religious Service Protections" Constitutional Amendment

Last Wednesday, The Texas Supreme Court heard oral arguments (video of full oral arguments) in Perez v. City of San Antonio. The court is being asked to respond to a certified question from the U.S. 5th Circuit Court of Appeals in a case in which members of the Lipan Apache Native American Church claim that improvements to a park that include tree removal and rookery management destroy their ability to use a sacred site in the park for certain religious ceremonies. The certified question involves interpretation of a provision in the Texas state Constitution that was adopted in response to restrictions imposed during the Covid pandemic.  The constitutional provision prohibits the state and localities from placing limits on religious services, without specifying whether the ban applies even in cases of a compelling governmental interest in doing so. (See prior posting.) The certified question reads:

Does the “Religious Service Protections” provision of the Constitution of the State of Texas—as expressed in Article 1, Section 6-a—impose a categorical bar on any limitation of any religious service, regardless of the sort of limitation and the government’s interest in that limitation?

The Texas Supreme Court has links to pleadings and briefs (including amicus briefs) filed in the case. Oral argument for appellants was presented by a faculty member from the University of Texas College of Law, Law and Religion Clinic. Religion News Service reports on the oral arguments.

President Apologizes for Indian Boarding School Policies; Over Half of Schools Had Religious Affiliations

Yesterday, President Biden speaking at Gila Crossing Community School in Laveen Village, Arizona, issued a formal apology on behalf of the United States for the Federal Indian Boarding School Policies implemented between 1819 and 1969 to implement a policy of cultural assimilation. (Full text of President's remarks.) Investigative reports issued by the Department of Interior in 2022 and 2024 said in part:

Initial investigation results show that approximately 50 percent of Federal Indian boarding schools may have received support or involvement from a religious institution or organization, including funding, infrastructure, and personnel. As the U.S. Senate has recognized, funds from the 1819 Civilization Fund “were apportioned among those societies and individuals—usually missionary organizations—that had been prominent in the effort to ‘civilize’ the Indians.” The Federal Government at times paid religious institutions and organizations on a per capita basis for Indian children to enter the Federal Indian boarding schools that these institutions and organizations groups operated.

The reports disclose that of the 408 Indian Boarding Schools, 210 had a religious affiliation.  (List of religiously affiliated boarding schools.) 132 were Protestant; 77 were Catholic; and 5 had other religious affiliations.

President Biden in his remarks yesterday described the experience of Native American children at these schools:

Children would arrive at schools.  Their clothes taken off.  Their hair that they were told was sacred was chopped off.  Their names literally erased and replaced by a number or an English name....

Another survivor described what it was like at the boarding school, and I quote, “When I would talk in my Tribal language, I would get hit.  I lost my tongue.  They beat me every day.”

Children abused — emotionally, physically, and sexually abused.  Forced into hard labor.  Some put up for adoption without the consent of their birth parents.  Some left for dead in unmarked graves. 

And for those who did return home, they were wounded in body and in spirit — trauma and shame passed down through generations. 

Tribe Seeks Supreme Court Review of Transfer of Sacred Site to Mining Company

A petition for certiorari (full text) was filed this week with the U.S. Supreme Court in Apache Stronghold v. United States, (Sup. Ct., filed 9/11/2024). In the case, the U.S. 9th Circuit Court of Appeals sitting en banc, by a vote of 6-5, refused to enjoin the government from transferring to a copper mining company federally-owned forest land that is of significant spiritual value to the Western Apache Indians. (See prior posting.) The petition for review raises issues under both RFRA and the 1st Amendment's Free Exercise clause. Becket Fund issued a press release announcing the filing of the petition seeking Supreme Court review.

Court Gives Limited Relief to Native Americans Who Object to Park Improvements Project

 In Perez v. City of San Antonio, (WD TX, Oct. 11, 2023), a Texas federal district court held that members of the Native American Church should be given access for religious services to a point on the San Antonio River which is a Sacred Site for them.  Access is limited to 15 to 20 people for no more than an hour on astronomical dates that coincide with their spiritual beliefs.  The court deferred ruling on whether access for all-night peyote ceremonies will be allowed. The court refused to grant plaintiffs' request that the proposed improvements to the park in which the Sacred Site is located be limited so that the spiritual ecology of the Sacred Area would be preserved by minimizing tree removal and allowing cormorants to nest. The court said in part:

The most important part of Plaintiffs’ spiritual ecology is the confluence of the shape of the Mother Waters at the bend of the San Antonio River with the shape of the Eridanus constellation of stars.

Given the current extended drought, the lack of water flow from the Blue Hole Springs and other natural sources, there would be no San Antonio River/Mother Waters but for the City artificially assisting the river by pumping recycled waste water, presumably from the sewer reclamation system.... This creates something of a secular/religious symbiotic relationship between Plaintiffs and Defendant until it rains, the springs come to life and until the reformation and resurrection of the Project Area is complete. Amen.

... [T]he Court heard credible testimony of thousands of egrets, herons, and cormorants and their excrement nesting in the Project Area during their migrations at different times of the year. Once nested, the Migratory Bird Treaty Act precludes removal. The Court finds the bird deterrent operation is in the realm of public health and safety....

... [T]he Court finds the City has met its burden of proving a compelling government interest for public health and safety....

Moreover, Plaintiffs desire possibly to save trees by ordering the City to “reevaluate the Bond Project to develop alternative plans” would, given the lengthy redesign and re-permitting processes, exponentially extend Plaintiffs’ and the public’s presently fettered ability to enjoy the area. The temporary closing becomes semi-permanent. Instead of months, access would likely remain limited for years, as is the case of the faithful who find the Notre Dame Cathedral to be their sacred place and who for several years will have to use alternative places of worship. By its Order, it is the Court’s intent to make the fettered unfettered as soon as reasonably possible. It will be up to the parties to decide how long they wish to delay the unfettered with continuing litigation.

UPDATE: On Oct. 25, 2023, the Texas federal district court denied plaintiffs' emergency motion for an injunction pending appeal. 2023 U.S. Dist. LEXIS 192796.

 

RFRA Defense Cannot Be Decided On Pre-Trial Motion

In United States v. Skeet, (D NM, Aug. 26, 2022), a New Mexico federal district court held that defendant, a member of the Navajo nation, must assert as a defense at trial rather than in a pre-trial motion, the contention that the Migratory Bird Treaty Act and the Bald and Gold Eagle Protection Act violate his rights under the Religious Freedom Restoration Act. The court said in part:

[B]ecause Mr. Skeet’s RFRA defense implicates primarily factual rather than legal issues, the Court finds that this defense is “territory reserved to the jury as the ultimate finder of fact in our criminal justice system.” ... Additionally, because the RFRA defense goes to the ultimate issue of Mr. Skeet’s guilt, it would require a trial on the merits of the case—a prospect that is proscribed by Rule 12(b)(1) and that disserves judicial economy.... Nevertheless, Mr. Skeet is welcome to assert a RFRA defense at trial.

9th Circuit: Oak Flat Land Exchange Did Not Substantially Burden Apache Religious Exercise

In Apache Stronghold v. United States, (9th Cir., June 24, 2022), the U.S. 9th Circuit Court of Appeals, in a 2-1 decision, held that a proposed federal government land exchange in Arizona with a mining company will not substantially burden Apache religious exercise in violation of RFRA. Nor will it violate the 1st Amendment because the Land Exchange Provision is a neutral and generally applicable law. The majority said in part:

Under RFRA, the government imposes a substantial burden on religion in two—and only two—circumstances: when the government “force[s individuals] to choose between following the tenets of their religion and receiving a governmental benefit” and when the government “coerce[s individuals] to act contrary to their religious beliefs by the threat of civil or criminal sanctions.” ... Here, the government will do neither by transferring Oak Flat to Resolution Copper.... The Department of Agriculture will simply transfer ownership of a plot of government land to Resolution Copper. The Land Exchange’s “incidental effects” on the religious exercise of Apache Stronghold’s members, as significant as they may be to the Apache, “may make it more difficult [for them] to practice [their religion] but [will] have no tendency to coerce [the Apache] into acting contrary to their religious beliefs.” ... Hence, under RFRA the Land Exchange imposes no substantial burden and RFRA thus does not limit the government’s ability to complete the Land Exchange. 

This is true even if the Land Exchange makes worship on Oak Flat “impossible.” 

Judge Berzon dissented, saying in part:

The majority applies an overly restrictive test for identifying a “substantial burden” on religious exercise under the Religious Freedom Restoration Act.... The majority’s flawed test leads to an absurd result: blocking Apaches’ access to and eventually destroying a sacred site where they have performed religious ceremonies for centuries does not substantially burden their religious exercise. The majority offers both a doctrinal and a practical basis for its unduly narrow definition of “substantial burden.” Both are incorrect.

The majority opinion includes a lengthy response to the dissent. Reuters reports on the decision.

Department Of Interior Report Includes Role Of Religious Institutions In Indian Boarding School Policies

Last month, the Department of Interior released Volume 1 of an investigative report as part of its Federal Indian Boarding School Initiative designed to explore the legacy of past Indian boarding school policies. The Report (full text) released on May 11 includes a section (pp. 46-50) on The Role of Religious Institutions and Organizations in the Federal Indian Boarding School System, which says in part:

Indian reservations “were distributed among the major religious denominations, which, in an unprecedented delegation of power by the Federal Government to church bodies, were given the right to nominate new agents, and direct educational and other activities on the reservations.” ... [T]he Executive accepted official recommendations by religious institutions and organizations for presidential appointed posts in states and territories.... [T]he U.S. “military was frequently called in to reinforce the missionaries’ orders.

The report quotes an 1886 memo from an Indian School Superintendent to the Secretary of Interior on boarding schools operated by religious institutions:

The Government aid furnished enables them to sustain their missions, and renders it possible … to lead these people, whose paganism has been the chief obstacle to their civilization, into the light of Christianity – a work in which the Government cannot actively engage … They should receive the encouragement and co-operation of all Government employés.

Litigation Between Indian Tribes Over Burial Sites Dismissed On Sovereign Immunity Grounds

In Muscogee (Creek) Nation v. Poarch Band of Creek Indians, (MD AL, March 15, 2021), the Creek Nation-- an Indian tribe that was forced into Oklahoma in the 1830's from its original location in Alabama-- sued the Poarch Band of Creek Indians (PBCI) as well as federal officials over a casino and hotel which PCBI built on land in Alabama that contained ceremonial grounds and burial sites that once belonged to the Creek Nation. The court held that the claims against PCBI and its officials are barred because of sovereign immunity. Because the tribe or its officials are an indispensable party to the litigation, the other defendants were also dismissed. The court added:

A narrower suit seeking more limited relief--such as the return of the bodies and funerary objects buried at Hickory Ground to the descendants of the deceased--may not trigger the same sovereign interests that preclude this litigation from proceeding, particularly if such a suit were directed at specific tribal officials responsible for PBCI’s ongoing control of those bodies and artifacts.

Exchange of Apache Sacred Land Does Not Violate RFRA or Free Exercise Clause

 In Apache Stronghold v. United States, (D AZ, Feb. 12, 2021), an Arizona federal district court refused to issue a preliminary injunction to prevent a land exchange between the federal government and two foreign mining companies known as Resolution Copper. The land to be conveyed to Resolution Copper contains a sacred Apache ceremonial ground know as Oak Flat. In addition to rejecting treaty claims, the court concluded that plaintiff has not shown a likelihood of prevailing on its claims under the Free Exercise clause and RFRA, saying in part:

Plaintiff has not been deprived a government benefit, nor has it been coerced into violating their religious beliefs. The Court does not dispute, nor can it, that the Government's mining plans ... will have a devastating effect on the Apache people's religious practices.... However, Oak Flat does not provide the type of "benefit" required under RFRA jurisprudence....

The Southeast Arizona Land Exchange and Conservation Act is facially neutral, and Plaintiff has provided no evidence of any discriminatory intent behind its passage....

Apache Stronghold issued a press release announcing the decision.

Indian Tribe Loses Free Exercise Claim In Suit Over Handling of Human Remains At Alamo

In Tap Pilam Coahuiltecan Nation v. Alamo Trust, Inc., 2020 U.S. Dist. LEXIS 201209 (WD TX, Sept. 23, 2020), a Texas federal district court dismissed a suit brought by an Indian tribe complaining that-- because they are not a federally recognized tribe-- they were excluded from the human remains protocol governing remains found during renovations at the Alamo. Plaintiffs contended that their exclusion discriminates against them because of their race and religion, and violates their free exercise rights. The court said in part:

Plaintiffs state that their core religious beliefs require that when a body is moved, they must perform a "forgiveness ceremony," seeking the deceased ancestor's forgiveness for disturbing their final resting place....

Plaintiffs are seeking to gain participation in the human remains protocol and permission to conduct their ceremony in the Alamo Chapel. Indeed, as Defendants point out, inclusion in the human remains protocol and permission to enter the Alamo Chapel outside of operating hours to conduct a religious ceremony are both "benefit[s] that [are] not otherwise generally available[.]" Patterson, 398 F. Supp. 3d at 123. Rather, they are benefits Plaintiffs seek to exact from Defendants. Such relief is unavailable under Lyng. 485 U.S. at 451; Patterson, 398 F. Supp. 3d at 123....

Native American Band Fails In Attempt To Halt Border Barrier Construction

 In Manzanita Band of the Kumeyaay Nation v. Wolf, (D DC, Oct. 16, 2020), in a suit by a Native American tribe the D.C. federal district court refused to enjoin construction on two barrier projects along the U.S.-Mexico border in California. The court said in part:

The Kumeyaay’s principal claim of injury is this: So long as construction at the Projects continues without proper consultation and mitigation measures, it will “unavoidably damage” cultural and religious sites and artifacts, as well as the natural setting and resources “on which the sacred nature of such sites depends.”... The Court does not doubt the significance of the region to the Kumeyaay’s religion. But they have not made a clear showing to support their contention for any of these alleged harms....

For starters, no Kumeyaay burial sites or remains have been identified within the narrow strip of federal land where construction is taking place, even after the Government surveyed and re-surveyed the land.

Indian Tribe Sues To Stop Trump's Border Wall

 A California Indian tribe filed suit this week in a California federal district court challenging the construction of President Trump's border wall.  The complaint (full text) in La Posta Band of Diegueno Mission Indians v. Trump, (SD CA, filed 8/11/2020), alleges in part:

Since time immemorial, the Kumeyaay people have lived in the area ... surrounding what is now the United States-Mexico border. Since the arrival of Europeans in the region, the Kumeyaay territory, culture, religion, and very existence have been under attack to make way for non-Indian settlement. In the most recent episode of Indigenous erasure, the President of the United States and his administration are desecrating Kumeyaay ancestral burial and sacred sites to make way for a wall along the United States’ southern border. The La Posta Band of the Diegueño Mission Indians ... bring this complaint to halt the construction of the border wall—a project being funded and constructed without authorization from Congress and which is violating the constitutional rights of the La Posta citizens—until the Defendants can guarantee adequate consultation and protection of La Posta religious practices and cultural heritage....

The Defendants are excavating and desecrating Kumeyaay burials without allowing La Posta access to properly treat the exhumed remains....

The border wall has made and will continue to make Kumeyaay sacred sites that lie within and south of the Project Area inaccessible....

Times of San Diego reports on the lawsuit. 

Sioux Tribes Get Delay In Dakota Access Pipeline

In Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers, (D DC, March 25, 2020), the D.C. federal district court held that the Army Corps of Engineers needs to prepare an environmental impact statement on the proposed Dakota Access Pipeline route under Lake Oahe in North and South Dakota.  Sioux tribes rely on Lake Oahe water for, among other things, sacred religious and medicinal practices. Inside Climate News reports on the decision.

Indian Tribe Sues Over Exclusion From Committee Dealing With Ancestors' Remains

A lawsuit was filed yesterday in a Texas federal district court by a non-federally recognized Indian tribe against Texas officials involved in redevelopment of the Alamo complex complaining about the tribe's exclusion from a committee dealing with human remains found at the site. Plaintiffs say their ancestors are among those buried there, and some of the tribes allowed on the committee are responsible for the deaths of those buried in the cemetery.

The complaint (full text) in Tap Pilam Coahuiltecan Nation v. Alamo Trust, Inc., (WD TX, filed 9/10/2019), contends that requirements of the San Antonio's zoning laws that refer to the National Historic Preservation Act are not being followed in dealing with a cemetery on the redevelopment site. Instead authorities are applying the Native American Grave Protection Act which excludes non-recognized tribes. The complaint alleges in part:

Defendants are ignoring the City of San Antonio’s Unified Development Code and arbitrarily applying NAGPRA for the purpose of excluding the Plaintiffs and other lineal descendants from participation. The reason for this is obvious, the Defendants are planning to conduct their archaeological activities in a manner that violates local, state and federal laws in an attempt to reduce cost and time.

Plaintiffs also complain that they were denied use of the Alamo Chapel for their annual Sunrise Memorial Ceremony. Courthouse News Service reports on the lawsuit.

Rules On Tribal Possession of Eagle Remains Are Liberalized

The U.S. Fish and Wildlife Service announced last week that it has revised its policy on handling of bald and golden eagle remains found on lands of recognized Indian tribes. Under previous rules, the remains would be transferred to the National Eagle Repository.  Now, federally recognized tribes that wish to keep eagle remains found on their land will be able to do so once they report the find to law enforcement officials and officials determine that the eagle was not taken intentionally and does not pose human health risks:

Under the updated policy, a federally recognized Tribe must receive a permit prior to possessing eagle remains found within Indian Country. When a Tribal member or an employee of a federally recognized Tribe discovers eagle remains, he or she must report it immediately to Tribal or Service law enforcement officials.

Eagle remains found and reported may be eligible for return to the federally recognized Tribe for religious purposes after the Service completes any activities it deems necessary for law enforcement or for scientific management reasons.

Salt Lake Tribune reports on the rule change.

New Jersey Town Settles With Native American Tribe Seeking Use of Its Sacred Land

Mahwah Patch reports that a settlement has been reached in four pending cases pitting the Native American Ramapough Lenape Nation against the Township of Ramapough, New Jersey. Three of the cases are land use and zoning claims against the Indian Tribe. The fourth is a federal civil rights suit by the Tribe  claiming that local officials along with a neighboring housing association are attempting to prevent the Ramapoughs from using their own prayer ground for religious activities. (See prior posting.) Under the settlement agreement, the Tribe can continue to hold community and religious gatherings at its Sweet Water Prayer Site, and the Township will not try to remove the Tribe's sacred prayer circle or stone altar from the site. The settlement also dismisses millions of dollars of fines that had been levied against the Tribe. A civil rights action by the Tribe against the Ramapo Hunt & Polo Club has not been settled. That suit alleges that the Club, which borders the Tribe's Prayer Site, has conspired to deny the Tribe the use of its own land. Center for Constitutional Rights also issued a press release announcing the settlement agreement.

9th Circuit: Protection of Sacred Land From Mining Does Not Violate Establishment Clause

In National Mining Association v. Zinke, (9th Cir., Dec. 12, 2017), the U.S. 9th Circuit Court of Appeals upheld the Obama administration's withdrawal for up to 20 years of over 1 million acres of land near Grand Canyon National Park from new uranium mining claims.  Among other things, the court rejected a claim that the Interior Department violated the Establishment Clause when it precluded new mining claims in order to protect land that has sacred meaning to Indian tribes. The court reasoned in part:

preservation of areas of cultural or historic value ... may constitute a “secular purpose” justifying state action even if the area’s significance has, in part, a religious connection.

In a related opinion in Havasupai Tribe v. Provencio, (9th Cir., Dec. 12, 2017), the 9th Circuit upheld the right of a two companies with a pre-existing approval to operate a uranium mine near Red Butte within the Grand Canyon withdrawal area.  Red Butte is a site of religious and cultural significance to the Havasupai Tribe.  Washington Post reports on the decisions.

Township In Litigation With Indian Tribe Over Use of Prayer Grounds

In Mahwah, New Jersey, where most of the attention is on a lawsuit claiming that the township is attempting to keep out Orthodox Jews (see prior posting), NJ Advance Media reports on another trial under way also involving religious rights.  The township is attempting to force the Ramapough Lenape Indian Tribe to remove teepees and other structures the tribe erected on their 13.6 acre prayer ground on the Ramapo River at the base of a high-priced housing development. the tribe says the township is trying to criminalize its religious gatherings.  The township argues that the issue is zoning compliance in a conservation zone and flood plain. It says the tribe has created a camp ground that is not permitted under zoning regulations.

Court Dismisses Claim That Solar Project Infringes Sacred Indian Mounds

The Springfield Republican reports that on Friday a Massachusetts federal district court dismissed a lawsuit that sought to stop development of a 6-acre solar farm in Shutesbury, Massachusetts. Plaintiffs contended that the property contained sacred Indian mounds and sacred stone landscapes.  According to the paper:

Two archaeologists ... had found no evidence of sacred structures or burial mounds on the property. However, the plaintiffs claimed that only a "tribal historic preservation officer" could make that determination.

In dismissing the case, [Judge] Mastroianni concluded that the plaintiffs and their consultants have no legal right to enter the property.

The religious land use statute "does not create a substantive right for a person to carry out religious activities on property owned or controlled by another," and the Historic Preservation Act only covers federal or federally assisted projects.

Mormon Judge's Recusal Not Required In Case Involving Indian Tribe

In Ute Indian Tribe of the Uintah & Ouray Reservation, Utah v. State of Utah, (D UT, July 25, 2016), a Utah federal district court rejected the contention that a federal judge's membership in the Mormon Church should be a basis for requiring recusal in cases involving Indians or Indian tribes.  To support the claim, the Ute Tribe cited a passage in Mormon scripture regarding a curse on the Lamanites, which some identify as American Indians.  In the long-running case involving the extent of tribal court jurisdiction, the court said:

plaintiff's argument is conclusively foreclosed by the Tenth Circuit's unequivocal holding that membership in and support of "the Mormon Church would never be enough to disqualify" a judge.

The court also refused to disqualify the judge on various other grounds as well. Fox 13 reports on the decision.