5th Circuit Reopens Lipan-Apache's Suit Objecting to Park Modifications

 In 2021, Texas voters approved an amendment to the state constitution that provides:

This state or a political subdivision of this state may not enact, adopt, or issue a statute, order, proclamation, decision, or rule that prohibits or limits religious services, including religious services conducted in churches, congregations, and places of worship, in this state by a religious organization established to support and serve the propagation of a sincerely held religious belief.

The amendment was a response to orders during the Covid pandemic that limited the size of gatherings for religious services. (Background.)

In Perez v. City of San Antonio, (5th Cir., Aug. 28, 2024), the U.S. 5th Circuit Court of Appeals certified to the Texas Supreme Court the question of whether this ban is an absolute one, or whether the amendment merely imposes a strict scrutiny requirement on any limitation. The issue arises in a suit by members of the Lipan-Apache Native American Church who 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. In a prior decision, the 5th Circuit rejected plaintiffs' claim under the Texas Religious Freedom Restoration Act. It then held that plaintiffs had not adequately briefed the question of whether the Religious Services Amendment to the constitution covers a compelled preservation of spiritual ecology. (See prior posting.) Plaintiffs filed a motion for a rehearing, and in this week's decision the panel withdrew its original opinion and certified the question of the meaning of the Religious Services Amendment to the Texas Supreme Court, saying in part:

Neither party has cited any cases interpreting this constitutional provision, nor has this court found any. This potentially outcome determinative issue raises novel and sensitive questions....

5th Circuit Denies Further Relief to Native American Church Objecting to Park Modifications

As previously reported, last year a Texas federal district court held that members of the Lipam-Apache 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.  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. Plaintiffs appealed the injunction denials.  In Perez v. City of San Antonio, (5th Cir., April 11, 2024), the U.S. 5th Circuit Court of Appeals affirmed the district court. Rejecting appellants' claim under the Texas Religious Freedom Restoration Act, the court said in part:

In analyzing Appellants’ contention that the destruction of the tree canopies, where cormorants nest, and the driving away of the cormorants themselves will burden their religions, we consider whether the presupposed burden is real and significant....

Appellants continue to have virtually unlimited access to the Park for religious and cultural purposes. Appellants’ reverence of the cormorants as sacred genesis creatures from the Sacred Area is not implicated here because the City’s rookery management program does not directly dictate or regulate the cormorants’ nesting habits, migration, or Park visitation. For example, the record shows that, regardless of the rookery management program, no cormorants, due to their migration patterns, inhabit the area for extended periods of time each year. Moreover, the City’s rookery management program does not substantially burden Appellants’ religious beliefs because cormorants can still nest elsewhere in the 343-acre Park or nearby. The deterrent activities are deployed only within the two-acre Project Area and only to persuade the birds to nest elsewhere....

The record indicates that various areas of the Park “become nearly unusable for 10 months of the year due to the bird density/habitat.”...

 [T]he City’s tree removal plan is narrowly tailored to achieve the City’s compelling governmental interest of making the Project Area safe for visitors to the Park....

Appellants assert that the City’s plan violates the religious-service protections provision of the Texas Constitution....

Even accepting that the “relatively new provision bars any government action that prohibits or limits religious services,” Appellants do not sufficiently brief the question of whether a compelled “preservation of spiritual ecology” was envisioned in the statute’s definition of a “religious service” protected from state sanctioned prohibitions or limitations.

Judge Higginson dissented in part, contending that the city should have done more to accommodate plaintiffs as to tree removal and anti-nesting matters.

Apaches Seek Review of Their RFRA Claim by 29-Judge Panel

As previously reported, last month 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 members of the Western Apache tribes. The land sits on the third largest deposit of copper ore in the world. The case generated six separate opinions spanning 241 pages which created separate majority alignments on different aspects of the interpretation of the Religious Freedom Restoration Act. Yesterday, plaintiffs filed a petition (full text) seeking review by a panel of all 29 judges on the 9th Circuit. The petition states in part:

If any case warrants full-court review, it is this one—where one en banc panel has overruled another, this Court’s judges are split 6-6, and a fractured decision has contradicted Supreme Court precedent on a question of existential importance to Native Americans. That question is whether the government “substantially burdens” religious exercise when it physically destroys a Native American sacred site, ending religious exercise forever. And the answer is plain: yes.

Becket Fund for Religious Liberty issued a press release announcing the filing.

9th Circuit En Banc Refuses to Bar U.S. Transfer of Sacred Apache Site to Copper Mining Company

In Apache Stronghold v. United States, (9th Cir., March 1, 2024), 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. The land sits on the third largest deposit of copper ore in the world. The case generated six separate opinions spanning 241 pages. The court's per curiam opinion summarizes the holding:

A majority of the en banc court ...concludes that (1) the Religious Land Use and Institutionalized Persons Act of 2000 ... and the Religious Freedom Restoration Act ... are interpreted uniformly; and (2) preventing access to religious exercise is an example of substantial burden.  A majority of the en banc court therefore overrules Navajo Nation v. U.S. Forest Service to the extent that it defined a “substantial burden” under RFRA as “imposed only when individuals are forced to choose between following the tenets of their religion and receiving a governmental benefit (Sherbert) or coerced to act contrary to their religious beliefs by the threat of civil or criminal sanctions (Yoder).”...   

A different majority ...concludes that (1) RFRA subsumes, rather than overrides, the outer limits that the Supreme Court’s decision in Lyng v. Northwest Indian Cemetery Protective Ass’n ... places on what counts as a governmental imposition of a substantial burden on religious exercise; and (2) under Lyng, a disposition of government real property does not impose a substantial burden on religious exercise when it has “no tendency to coerce individuals into acting contrary to their religious beliefs,” does not “discriminate” against religious adherents, does not “penalize” them, and does not deny them “an equal share of the rights, benefits, and privileges enjoyed by other citizens.”... The same majority holds that Apache Stronghold’s claims under the Free Exercise Clause and RFRA fail under these Lyng-based standards and that the claims based on the 1852 Treaty fail for separate reasons.  

We therefore AFFIRM the district court’s order denying the motion for a preliminary injunction.

Becket issued a press release announcing the decision and saying in part: "With the help of Becket, Apache Stronghold has vowed to appeal the decision to the U.S. Supreme Court." Los Angeles Times reports on the decision.

UPDATE: On May 14, 2024, the Court issued an amended opinion, clarifying some of the reasoning of the majority.

Feds Settle Suit Brought by Native American Tribes Over Destruction of Sacred Site

 A settlement between several federal agencies and Native American tribes in Oregon was reached last week in a case challenging the government's destruction of a small sacred site near Mount Hood when it widened a highway.  (See prior related posting.) The 9th Circuit had dismissed the case as moot, and plaintiffs filed an appeal with the U.S. Supreme Court.  Last week the parties filed a Joint Stipulation to Dismiss (full text) in Slockish v. U.S. Department of Transportation, (Sup. Ct, Oct. 5, 2023). Under the settlement, the government is to construct a tree or plant barrier to protect the site, allow access to an existing quarry for ceremonial and cultural uses, and allow plaintiffs to rebuild a stone altar on the site. [Note that the filed stipulation appears to be erroneously dated "2022" instead of "2023". The Supreme Court docket for the case confirms that 2023 is the correct date.] Oregon Capital Chronicle  and AP report on the settlement.

School District Settles Suit by Native Americans Over Cutting of Students' Hair

A consent decree (full text) was entered this week in Johnson v. Cody-Kilgore Unified School District, (D NE, Oct. 4, 2023). In the case, Native American parents (members of the Rosebud Sioux tribe) who practice traditional Lakota religious traditions sued over the school's cutting of their children's hair as part of a lice check and disposing of the hair in violation of Lakota tradition. (See prior posting.) Under the Consent Order, the School District will prohibit School Officials from cutting students' hair for any reason without the written parental (or guardian's) consent. It will also provide recognition of Native American Heritage Month and Indigenous Peoples' Day. Also the school district will pay damages totaling $227,500. Nebraska Examiner reports on the settlement agreement.

Presidential Proclamation Protects Sacred 500,000+ Acres in Nevada Under Antiquities Act

Yesterday, President Biden issued A Proclamation on Establishment of the Avi Kwa Ame National Monument (full text). The lengthy Proclamation sets aside 506,814 acres in southern Nevada, and items within that area, as protected under the Antiquities Act. The Proclamation reads in part:

The mountain and the surrounding arid valleys and mountain ranges are among the most sacred places for the Mojave, Chemehuevi, and some Southern Paiute people, and are also significant to other Tribal Nations and Indigenous peoples, including the Cocopah, Halchidhoma, Havasupai, Hopi, Hualapai, Kumeyaay, Maricopa, Pai Pai, Quechan, Yavapai, and Zuni....

For the Tribal Nations that trace their creation to Avi Kwa Ame, the power and significance of this place reside not just in the mountain itself, but radiate across the valleys and mountain ranges of the surrounding desert landscape containing the landmarks and spiritually important locations that are linked by oral traditions and beliefs.  Tribal Nations have shared those traditions and beliefs across many generations through ... origin songs, which are central to Tribal members’ knowledge of the landscape, enabling them to navigate across the diverse terrain, find essential resources, and perform healing, funeral, and other rituals....

This entire landscape is an object of historic and scientific interest requiring protection under ... the "Antiquities Act".... As well as being an object itself, the landscape contains innumerable individual geologic features, archaeological sites, and havens for sensitive and threatened species... and it provides habitat for centuries-old Joshua trees and other objects that are independently of historic or scientific interest and require protection under the Antiquities Act.  Some of the objects are also sacred to Tribal Nations; are sensitive, rare, or vulnerable to vandalism and theft; or are dangerous to visit and, therefore, revealing their specific names and locations could pose a danger to the objects or the public.

The White House also issued a Fact Sheet on the Proclamatioin. In another Proclamation issued yesterday, the President also created the Castner Range National Monument in El Paso, Texas. E&E News reports on these and related Presidential actions.

Congress Passes National Defense Authorization Bill with Various Provisions Impacting Religion

A press release from the U.S. Senate Armed Services Committee reports that on Thursday the U.S. Senate passed the James M. Inhofe National Defense Authorization Act for Fiscal Year 2023 by a vote of 83-11. The 4408-page bill (full text) now goes to President Biden for his signature. Among the provisions that impact religious concerns are the following:

 SEC. 509D. STUDY OF CHAPLAINS. 

(a) STUDY REQUIRED.—Not later than 180 days after the date of the enactment of this Act, the Secretary of Defense, in consultation with the Secretaries of the military departments, shall submit to the Committees on Armed Services of the Senate and House of Representatives a study of the roles and responsibilities of chaplains. 

(b) ELEMENTS.—The study under subsection (a) shall include the following: (1) The resources (including funding, administrative support, and personnel) available to support religious programs. (2) Inclusion of chaplains in resiliency, suicide prevention, wellness, and other related programs. (3) The role of chaplains in embedded units, headquarters activities. and military treatment facilities. (4) Recruitment and retention of chaplains. (5) An analysis of the number of hours chaplains spend in roles including pastoral care, religious services, counseling, and administration. (6) The results of any surveys that have assessed the roles, responsibilities and satisfaction of chaplains. (7) A review of the personnel requirements for chaplains during fiscal years 2013 through 2022. (8) Challenges to the abilities of chaplains to offer ministry services.

SEC. 525. RESCISSION OF COVID-19 VACCINATION MANDATE

Not later than 30 days after the date of the enactment of this Act, the Secretary of Defense shall rescind the mandate that members of the Armed Forces be vaccinated against COVID-19 pursuant to the memorandum dated August 24, 2021, regarding ‘‘Mandatory Coronavirus Disease 2019 Vaccination of Department of Defense Service Members’’.

SEC. 529. RECURRING REPORT REGARDING COVID-19 MANDATE. 

(a) REPORT REQUIRED.—The Secretary of Defense shall submit to the Committees on Armed Services of the Senate and House of Representatives a recurring report regarding the requirement that a member of the Armed Forces shall receive a vaccination against COVID-19. 

Each such report may not contain any personally identifiable information, and shall contain the following:  (1) With regard to religious exemptions to such requirement— (A) the number of such exemptions for which members applied; (B) the number of such religious exemptions denied; (C) the reasons for such denials; (D) the number of members denied such a religious exemption who complied with the requirement; and (E) the number of members denied such a religious exemption who did not comply with the requirement who were separated, and with what characterization....

Section 533 requires the Armed Forces to submit to Congress a report on recruiting efforts. Among other things, the Report is to include:  "A comparison of the race, religion, sex, education levels, military occupational specialties, and waivers for enlistment granted to enlistees by geographic region and recruiting battalion, recruiting district, or recruiting region of responsibility."

Title XXIX contains various provisions relating to access, preservation and protection of Native American cultural and religious sites within land used for bombing ranges and training areas.

Section 5576 limits foreign aid funds allocated for Burma, providing that funds may not be made available to "to any individual or organization that has committed a gross violation of human rights or advocates violence against ethnic or religious groups or individuals in Burma."

Section 6416 provides for creation of an Office of Wellness and Workforce Support for CIA personnel. Among other things, the Office is to make available: "A list of chaplains and religious counselors who have experience with the needs of the Agency workforce...."

9th Circuit: Native American Student's Suit Over Wearing Eagle Feather at Graduation Should Move Ahead

 In Waln v. Dysart School District, (9th Cir., Dec. 9, 2022), the U.S. 9th Circuit Court of Appeals held that a free speech and free exercise suit against an Arizona school district should not have been dismissed by the district court.  The school district refused to allow a Native American student to wear an eagle feather in her cap during graduation ceremonies. Wearing the eagle feather, which had been blessed and is considered a sacred object, was a religious practice. Sustaining plaintiff's Free Exercise claim, a majority of the court said in part:

Plaintiff has carried her burden, at the motion-to-dismiss stage, to show that the District’s policy [prohibiting decoration of graduation caps] is not generally applicable because it was enforced in a selective manner.

The court also held that plaintiff should be able to move ahead on her free speech claim, saying in part:

Here, the complaint plausibly alleges that the District enforced its facially neutral policy in a selective way.

The majority rejected the school district's contention that it had a compelling interest in complying with the Establishment Clause. 

Judge Baker filed an opinion dissenting in part, contending that plaintiff had not adequately alleged that the school district selectively enforced its policy against decorating graduation caps. However, he believed that the district court erred in not permitting plaintiff to amend her complaint to provide more factual content.

SCOTUS Hears Arguments in Indian Child Welfare Act Case

Yesterday the U.S. Supreme Court heard oral arguments in Haaland v. Brackeen. (Audio and transcript of full oral arguments). SCOTUSblog reported on the arguments. At issue is the constitutionality of the Indian Child Welfare Act of 1978 which attempts to prevent child welfare and adoption agencies from placing Native American children outside of their tribe. (SCOTUSblog case page.) A number of commentators have pointed out that issues of religion underlie the controversy in the four consolidated cases heard yesterday. Religion News Service explains, saying that the Act was a reaction to past efforts by the U.S. government to remove Native American children from their homes and place them in boarding schools:

The U.S. is only now reckoning with the history of its boarding schools, which separated generations of children from their families and prohibited them from speaking Native languages, dressing and wearing their hair in traditional styles and taking part in traditional spiritual practices in an effort to assimilate them into the dominant white Christian culture.

Half of boarding schools likely were supported by Christian institutions, according to a report released earlier this year by the U.S. Department of the Interior. A number of denominations are now researching and repenting for their past involvement.

Prof Who Criticized Native American Grave Repatriation Laws Can Move Ahead with Retaliation Suit

In Weiss v. Perez, (ND CA, Oct. 19, 2022), a California federal district court allowed a tenured professor of physical anthropology at San Jose State University to move ahead against most of the defendants she named in a lawsuit alleging that the University has retaliated her against because of her opposition to repatriation of Native American remains.  In a book that Prof. Elizabeth Weiss co-authored that was published in 2020, she argued that the Native American Graves Protection and Repatriation Act and the California Native American Graves Protection and Repatriation Act "undermine objective scientific inquiry and violate the Establishment Clause of the United States Constitution by favoring religion over science." She expressed similar views in an op-ed and on Twitter.  Weiss claims that because of her speaking on this issue, the University has interfered with her research and limited her professional activities in a number of ways that have reduced her responsibilities and damaged her professional reputation. The Art Newspaper reports on the decision.

Tribal Court Dismisses Trespass Charges Against Members Holding Religious Ceremony To Block Pipeline

An Ojibwe Tribal Court has dismissed civil trespass charges against three members of the Minnesota Chippewa Tribe who took part in an 8-day ceremonial gathering blocking construction of a pipeline by Enbridge Energy Corp.  A press release from the Civil Liberties Defense Center gives more background:

Pipeline construction threatened sacred waters, including the Mississippi headwaters, as well as the concomitant ability to hunt, fish, gather, and engage in religious and cultural practices central to Anishinaabe people, and threatened the safety and wellbeing of Indigenous women, girls, and two-spirits as part of the epidemic of Missing and Murdered Indigenous Women and Relatives.  In the face of these threats, Indigenous Water Protectors and their invited guests lit a ceremonial fire, gathered in prayer, and camped on the matting that stretched over the Mississippi River so that Enbridge’s pipeline could be built through it.  

Fire Light Camp participants were originally charged and prosecuted for trespass by the State of Minnesota in Clearwater County District Court.  The cases of several Indigenous participants were subsequently transferred to White Earth Tribal Court....

In White Earth Band of Ojibwe v. Beaulieu, (White Earth Band Tribal Court, June 27, 2022), the court concluded that the Tribal Code defines trespass as returning to property "without claim of right." Here defendants had the right to hold religious ceremonies (with invited guests) on land ceded to the United States. The Tribal Code recognizes "the rights to travel, use and occupy traditional lands and spiritual places for cultural purposes are part of each tribal members' individually held, historically inherent and inalienable rights that have existed from time immemorial."

9th Circuit Hears Oral Arguments In Tribe's Challenge To Geothermal Project

On Wednesday, the U.S. 9th Circuit Court of Appeals heard oral arguments in Fallon Paiute-Shoshone Tribe v. U.S. Department of the Interior (video of full oral arguments). In the case, in a January 14, 2022 opinion (full text) a Nevada federal district court, among other things, rejected a claim by the Fallon Paiute-Shoshone Tribe that construction of a geothermal facility will violate their rights under the Religious Freedom Restoration Act. The district court held that plaintiffs' claim that the project destroys the Tribe's ability to exercise its religious traditions is not enough to amount to a "substantial burden" on religious exercise. Desecration of a sacred area does not coerce Tribe members to act contrary to their religion. A conservation organization is also a plaintiff in the case. (See prior related posting.)  Nevada Current reports on this week's oral arguments.

Tribe Is Required Party In Challenge To Directive On Repatriation of Native American Remains

 In Weiss v. Perez, (ND CA, May 10, 2022), a California federal district court dismissed a suit brought by a San Jose State University anthropology professor who objects to the University president's directive that denied her access to Native American remains housed at the University. The directive was issued to prepare the remains for repatriation to the Muwekma Ohlone Tribe. Plaintiff, Prof. Elizabeth Weiss is an opponent of repatriation. The court held in part:

The Court finds that the Muwekma Ohlone Tribe is a required party under Rule 19 to adjudication of Professor Weiss’s claims about the Directive. Because the Tribe has sovereign immunity from suit and thus cannot be joined, Professor Weiss’s claims regarding the Directive must be dismissed with prejudice. The Court will, however, give Professor Weiss leave to amend her complaint as to her allegations about retaliation in the form of restricting access to and use of non-Native American remains and retaliation for her protected speech as it may pertain to her teaching and curational responsibilities.

Relocation Of Native American Graves Can Proceed

In Asher v. Clay County Board of Education, (ED KY, Feb. 11, 2022), a Kentucky federal district court refused to enjoin a school district from relocating graves from cemetery land which it had purchased. The school board followed procedures in Kentucky law to obtain permission for the relocation.  Plaintiffs claim the the cemetery contains graves of members of the White Top Band of Native Indians.  The court held that the Native American Graves Protection and Repatriation Act does not apply because the cemetery is not on federal or tribal lands. The court rejected plaintiffs' 1st Amendment free exercise claim, saying in part:

Plaintiffs argue that the Defendants’ actions would prevent religious fulfilment.... But like the respondents in Lyng [v. Nw. Indian Cemetery Protective Ass’n], Plaintiffs are not being coerced into violating their religious beliefs, nor are they being penalized because of their religious or traditional beliefs or practices. Instead, they seek to overturn the lawful process undertaken by the BOE to move the graves in the Hoskins Cemetery so that Plaintiffs can continue to practice their traditional and religious beliefs.... This is not “free exercise” of religion protected by the First Amendment. Rather, it amounts to Plaintiffs seeking to exact a benefit from the local government and to “divest the [BOE] of its right to use what is, after all, its land.”

RFRA Defense Successful For Tribal Member Charged In Protest Over Border Wall Construction

In United States v. Ortega, (D AZ, Jan. 19, 2022), an Arizona federal district court reversed its earlier ruling (see prior posting) and allowed Amber Ortega, a member of the Tohono O’odham Nation, to raise a Religious  Freedom Restoration Act defense in her trial on two misdemeanor charges for violating a closure order at the Organ Pipe Cactus National Monument. Ortega was protesting construction of a border wall at Organ Pipe. At the hearing on Wednesday, the court went on to acquit Ortega.  According to KJZZ News, at the hearing Ortega's new lawyer argued:

[T]he religious act in question was not prayer at Quitobaquito.  It was the act of standing at the construction line and witnessing what she saw as the destruction of her ancestral land.

Tribe Sues Claiming Energy Project Violates Its Religious Rights

The Center for Biological Diversity announced yesterday:

The Fallon Paiute-Shoshone Tribe and Center for Biological Diversity sued the U.S. Bureau of Land Management Wednesday over its approval of the Dixie Meadows geothermal energy project, which could dry up nearby springs and harm an extremely rare amphibian, the Dixie Valley toad.

The complaint (full text) in Fallon Paiute-Shoshone Tribe v. U.S. Department of the Interior, (D NV, filed 12/15/2021), includes a claim that approval of the project violates the Religious Freedom Restoration Act:

188. The Tribe and its members’ sincerely held religious beliefs involve quiet contemplation and reflection at Dixie Meadows Hot Springs, including the surrounding landscape. Tribal members’ compliance with these beliefs is a religious exercise.

189. Defendants’ approval of the Project creates government-imposed coercive pressure on the Tribal members to change or violate their religious beliefs. As detailed in this Complaint, approval of the Project damages the sacred value of the Hot Springs by altering its undisturbed state, and damages Tribal members’ ability to carry out religious practices by creating noise, light, and visual pollution.

The complaint points out:

59. On November 9, 2021—14 days before BLM approved the Project—Interior, the U.S. Department of Agriculture, the U.S. Department of Transportation, the U.S. Department of Energy, the U.S. Environmental Protection Agency, CEQ, the Advisory Council on Historic Preservation, and the Tennessee Valley Authority entered into a memorandum of understanding (“MOU”) concerning the protection of indigenous sacred sites.

60. The MOU recognizes that the spiritual and religious practices and traditions of indigenous peoples are closely tied to the natural world and specific places.

RFRA Defense Precluded In Prosecution of Tribal Member For Violating Closure Order

In United States v. Ortega, (D AZ, Nov. 18, 2021), an Arizona federal district court, ruling on the government's motion in limine to preclude a defense under the Religious Freedom Restoration Act in the prosecution of a member of the Tohono O’odham Nation for violating a closure order at the Organ Pipe Cactus National Monument, said in part:

There was no evidence presented that proved that the government interfered with Ms. Ortega’s prayers or ceremony at Quitobaquito Springs on 9/9/20, other than the distant sound of the heavy machinery. Ms. Ortega left the springs where she was praying and entered the closed construction area. The park rangers advised Ms. Ortega that the area under construction was closed to the public and she was instructed to leave, or she would be arrested.

Ms. Ortega was disturbed by the destruction and desecration of the land near the springs. She was spiritually wounded by the knowledge that the border wall was going to interrupt access of tribal members to their ancestral lands and that important medicinal plants would be destroyed. Construction of the border wall raised painful memories of the harms suffered by native people at the hands of the government throughout history. Ms. Ortega’s testimony was emotional and heartfelt. There is no question that her suffering is genuine and is rooted in her sincerely held religious beliefs. However, the defense was unable to prove that on 9/9/20 the closure order and the ranger’s lawful order that Ms. Ortega leave the construction zone imposed a substantial burden on her ability to engage in her religious activities.

Native American Parents Can Move Ahead With Suit Challenging School's Cutting of Children's Hair

In Johnson v. Cody-Kilgore Unified School District,(D NE, Nov. 10, 2021), a Nebraska federal district court allowed Native American parents (members of the Rosebud Sioux tribe) who practice traditional Lakota religious traditions to move ahead with several of their claims growing out of the school's cutting of their children's hair as part of a lice check. The school's cutting and disposing of the hair violates Lakota tradition. Plaintiffs claim that the school had an unwritten policy of cutting hair during lice checks that only applied to Native American students. The court allowed plaintiffs to proceed with their free exercise and Title VI racial discrimination claims. The court however dismissed plaintiffs' 14th Amendment parental rights claim. The Reader reports on the decision.

9th Circuit Hears Arguments On Destruction of Native American Sacred Site

Yesterday, the U.S. 9th Circuit Court of Appeals heard oral arguments (video of full arguments) in Slockish v. U.S. Department of Transportation. The facts of the case involving land near Mount Hood in Oregon are described in appellants' opening brief (full text) in part as follows:

Plaintiffs are members of federally-recognized tribes who long practiced their faith at a small sacred site called Ana Kwna Nchi Nchi Patat, or the “Place of Big Big Trees.”.... In the 1980s, when the Government proposed widening a nearby highway, one of Plaintiffs’ leaders informed the Government of the site’s historic and religious significance, including the graves and stone altar. In response, the Government modified its project to protect the site. But in 2008, the Government widened the highway again to add a center turn lane. This time, it protected a nearby wetlands, but completely destroyed the sacred site—cutting down the old-growth trees, bulldozing the burial ground and stone altar, and covering the area under a massive earthen berm.

Becket Law issued a press release on the case. (See prior related posting.)