Court Denies Preliminary Injunction In Tribal Challenge To Dakota Pipeline

AP reports that a federal district judge in Washington, D.C. yesterday refused to grant a temporary injunction against construction of the portion of the Dakota Access Pipeline running under Lake Oahe.  The Cheyenne River and Standing Rock Sioux tribes had sued claiming that the pipeline violates their rights under the Religious Freedom Restoration Act. (See prior posting.) The judge ruled on the motion after an hour-long hearing, concluding that the Tribe's religious exercise would not be infringed before oil actually begins running through the pipeline. Full arguments on the motion will be heard by the court on Feb. 27.

RFRA Challenge To Dakota Access Pipeline Filed

As previously reported, last month President Trump issued a Presidential Memorandum directing the Secretary of the Army to expedite approval of construction of the controversial Dakota Access Pipeline (DAPL). A federal district court had previously denied the Standing Rock Sioux Tribe an injunction against the pipeline. (See prior posting.) As reported by Jurist, yesterday the Cheyenne River Sioux Tribe which had already intervened as a plaintiff in the challenge to the pipeline filed three motions in the case. First it asked to be allowed to file an amended complaint adding a Religious Freedom Restoration Act claim. (Full text of motion.) It then filed a motion (full text and supporting memorandum ) seeking a preliminary injunction, and a separate motion seeking a temporary restraining order (full text and supporting memorandum) directing the Army Corps of Engineers to withdraw the easement/right-of-way issued on February 8 that permits drilling under federally-owned lands under and surrounding Lake Oahe, explaining:

The Lakota people believe that the mere existence of a crude oil pipeline under the waters of Lake Oahe will desecrate those waters and render them unsuitable for use in their religious sacraments.

Dakota Pipeline Will Move Ahead Despite Native American Objections

Washington Post reports that in a court filing yesterday the U.S. Army said that it will grant developers a 30-year easement under North Dakota’s Lake Oahe.  This is the final permit needed to complete the Dakota Access Pipeline. The Pipeline runs near the Standing Rock Sioux Reservation.  Tribal members claim that the Pipeline construction will destroy sacred ancestral Tribal lands. (See prior posting.) The Army is also terminating its plan to prepare an environmental impact statement on the Pipeline. Today's actions were authorized by a Presidential Memorandum issued by Donald Trump last month. (See prior posting.) Demonstrations and court challenges to the Army's decision are expected.

Trump Revives Dakota Pipeline, With Some Ambiguity As To Tribal Objections

As reported by the Washington Post, President Trump yesterday issued a Presidential Memorandum (full text) directing the Secretary of the Army to expedite approval of construction of the controversial Dakota Access Pipeline (DAPL).  One reason DAPL has been controversial is that it was routed to run a half mile from the Standing Rock Sioux reservation, impinged on sacred tribal burial and historical sites and also created oil spill concerns by the tribe. To deal with these concerns, in December the U.S. Army announced that it would not approve an easement for DAPL under Lake Oahe in North Dakota, urging developers to find an alternative route. (See prior posting.)

Yesterday's Presidential Memorandum leaves some ambiguity regarding protection of tribal rights.  The Memorandum broadly calls for the Army to "review and approve in an expedited manner, to the extent permitted by law and as warranted, and with such conditions as are necessary or appropriate, requests for approvals to construct and operate the DAPL, including easements or rights-of-way to cross Federal areas."  However it then appears to qualify this as to the Lake Oahe easement, instructing the Army to:

consider, to the extent permitted by law and as warranted, whether to rescind or modify the memorandum by the Assistant Secretary of the Army for Civil Works dated December 4, 2016 (Proposed Dakota Access Pipeline Crossing at Lake Oahe, North Dakota)....

The Guardian reports that supporters of the Standing Rock Sioux say they will fight the President's action.  Tribal chairman Dave Archambault said: "President Trump is legally required to honor our treaty rights and provide a fair and reasonable pipeline process."

Obama Designates New Monuments Including Sacred Native American Site

Yesterday President Obama issued Executive Orders designating the Gold Butte area in the Mojave Desert in Nevada (full text of Executive Order) and the buttes known as Bears Ears in southeast Utah (full text of Executive Order) as National Monuments. The Bears Ears site is sacred to a number of Native American tribes, including the Ute Mountain Ute Tribe, Navajo Nation, Ute Indian Tribe of the Uintah Ouray, Hopi Nation, and Zuni Tribe. In a Statement, President Obama emphasized that he also has established a Bears Ears Commission to bring tribal expertise and traditional knowledge to the management of the Bears Ears National Monument.  In a statement on the White House website, the president of the Navajo Nation shared his thoughts on the establishment of Bears Ears National Monument.

UPDATE: Utah Gov. Gary Herbert (press release) and Utah Attorney General Sean Reyes (press release) both announced their opposition to the designation of Bears Ears.  Reyes said in part:

The sacred tribal areas in and around Bears Ears should absolutely be protected but in a way that is legally sound and that makes sense. A national monument in San Juan County does not preserve the land but divests it from the very people for whom it is sacred. The local Navajo will no longer be able to gather medicine or firewood, graze cattle, hunt, maintain their livelihoods or access the mountain heights for their religious ceremonies....

My office is working closely with the Governor’s office, federal and state legislators, and San Juan County to file a lawsuit challenging this egregious overreach by the Obama Administration. This case is different from other past challenges by states and counties and we are confident in our chances of success. But the courtroom is not our only option. Our federal delegation is working hard to defund the designation or rescind it altogether. Additionally, we look forward to working with the new Presidential Administration on ways to curtail or otherwise address the designation.

Victory For Sioux: Army Says Dakota Pipeline Must Find Alternative Route

In a major victory for cultural and religious rights of the  Sioux Tribe, the U.S. Army announced yesterday that will not approve an easement that would allow the proposed Dakota Access Pipeline to cross under Lake Oahe in North Dakota. The pipeline, whose original route would run only a half mile from the Standing Rock Sioux reservation, impinged on sacred tribal burial and historical sites and also created oil spill concerns by the tribe.  Alternative sites will now need to be explored. The Minneapolis Star-Tribune reports on the Army's decision as well as on the background of the dispute. In September, a federal district court had refused to enjoin construction of the pipeline. (See prior posting.)

Obama: Army Corps Looking For Alternative Pipeline Route To Protect Sioux Lands

As previously reported, the Sioux Tribe has been embroiled in litigation attempting to stop construction of an oil pipeline near the Standing Rock Indian Reservation in in North and South Dakota, contending that the construction will destroy sacred ancestral Tribal lands.  A federal district court has refused to enjoin the construction. Nevertheless the federal government said it would delay approval of the construction.  Now, NPR reports that on Tuesday President Obama told an interviewer that the U.S. Army Corps of Engineers is examining possible alternate routes for the Dakota Access Pipeline. Obama said in part:

We're monitoring this closely and I think, as a general rule, my view is that there's a way for us to accommodate sacred lands of Native Americans. I think right now the Army Corps is examining whether there are ways to reroute this pipeline in a way. So we're going to let it play out for several more weeks and determine whether or not this can be resolved in a way that I think is properly attentive to the traditions of the first Americans.

Federal Court Dissolves TRO Against Native American Pipeline Demonstrators

According to a National Lawyers Guild press release, yesterday a North Dakota federal district court dissolved an ex parte temporary restraining order it had issued a month earlier against the Standing Rock Sioux Tribal Chairman and others who had participated in demonstrations against construction of the Dakota Access Pipeline.  Demonstrators claim that the pipeline corridor runs through and near many Lakota/ Dakota tribe sacred burial and historical sites. Last week a D.C. federal district court refused to enjoin construction of the pipeline, but federal agencies are considering whether or not to grant permits for the project. (See prior posting.) The effect of yesterday's the order is to leave dealing with demonstrations to local officials.

Court Rejects Sioux Challenge To Pipeline On Sacred Land, But Feds Delay Permission

In Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers, (D DC Sept. 9, 2016), the D.C. federal district court refused to enjoin construction of the Dakota Access Pipeline near the Standing Rock Indian Reservation on sacred ancestral lands of the Sioux Tribe. (See prior related posting.) Summarizing its 58-page decision, the court said:

The Tribe fears that construction of the pipeline, which runs within half a mile of its reservation in North and South Dakota, will destroy sites of cultural and historical significance. It has now filed a Motion for Preliminary Injunction, asserting principally that the Corps flouted its duty to engage in tribal consultations under the National Historic Preservation Act (NHPA) and that irreparable harm will ensue. After digging through a substantial record on an expedited basis, the Court cannot concur. It concludes that the Corps has likely complied with the NHPA and that the Tribe has not shown it will suffer injury that would be prevented by any injunction the Court could issue.

However, shortly after the decision was handed down, the Department of Justice, the Department of the Army and the Department of the Interior issued a joint statement (full text) reading in part:

The Army will not authorize constructing the Dakota Access pipeline on Corps land bordering or under Lake Oahe until it can determine whether it will need to reconsider any of its previous decisions regarding the Lake Oahe site under the National Environmental Policy Act (NEPA) or other federal laws.  Therefore, construction of the pipeline on Army Corps land bordering or under Lake Oahe will not go forward at this time.  The Army will move expeditiously to make this determination, as everyone involved — including the pipeline company and its workers — deserves a clear and timely resolution.  In the interim, we request that the pipeline company voluntarily pause all construction activity within 20 miles east or west of Lake Oahe.

Furthermore, this case has highlighted the need for a serious discussion on whether there should be nationwide reform with respect to considering tribes’ views on these types of infrastructure projects.  Therefore, this fall, we will invite tribes to formal, government-to-government consultations on two questions:  (1) within the existing statutory framework, what should the federal government do to better ensure meaningful tribal input into infrastructure-related reviews and decisions and the protection of tribal lands, resources, and treaty rights; and (2) should new legislation be proposed to Congress to alter that statutory framework and promote those goals....

In recent days, we have seen thousands of demonstrators come together peacefully, with support from scores of sovereign tribal governments, to exercise their First Amendment rights and to voice heartfelt concerns about the environment and historic, sacred sites.  It is now incumbent on all of us to develop a path forward that serves the broadest public interest.

CNN reports on developments.

Sioux-- and Green Party Candidate-- Protest North Dakota Pipeline Across Sacred Land

The Washington Post this week reported on the showdown between members of the Standing Rock Sioux Tribe and the company building the Dakota Access crude-oil pipeline across North and South Dakota.  The tribe claims that the pipeline will run through sacred ancestral lands which were taken from the tribe over the years. It will cross the Missouri River just a mile north of the Standing Rock Indian Reservation.  Thousands of Native Americans have traveled to North Dakota over the past weeks to join the protest. As reported by CBS News, on Tuesday Green Party Presidential candidate Jill Stein visited the protest site and, at the urging of activists, spray painted a  message on a bulldozer blade. In response, yesterday a warrant was issued for Stein's arrest, charging her with misdemeanors-- criminal trespass and criminal mischief.  On Tuesday, a judge issued a temporary restraining order halting construction only on part of the land. A ruling on the Tribe's request for an injunction is expected Friday. (NPR News).

Native American Cannot Claim Religious LiIberty Defense In Prosecution for Unlawful Hunting

In State of Washington v. McMeans, (WA App., Aug. 9, 2016), a Washington state appeals court upheld a trial court's refusal to give the jury an instruction on a free exercise defense asserted by a Yakima Tribe designated hunter in a prosecution of him for unlawful hunting.  Defendant Ricky Watlamet killed 4 elk to provide meat for the funeral of a tribal elder.  The elk harvesting took place outside of elk hunting season on land of co-defendant who sought help to get rid of elk damaging her property.  Under an 1855 treaty, the Yakima tribe is allowed to hunt on "open and unclaimed lands," but not private property.  The court said in part:

The defense presented substantial evidence that Mr. Watlamet had sincere religious beliefs and that he used the elk meat for religious purposes. However, he did not provide any evidence that the McMeans property was the only available location to obtain the elk meat. In fact, the record shows that Mr. Watlamet could lawfully hunt elk on State land, Federal land, tribal land, or any open and unclaimed land. The record also indicates that at the time in question there were numerous elk on the reservation as well as elk on state land adjacent to the McMeans property. Mr. Watlamet could have hunted these elk without running afoul of any regulation. He presented no evidence that either these particular elk or this particular place were necessary, preferable, or even convenient, nor has he presented any evidence that hunting the lawfully available elk was in any way burdensome. 

2016 Democratic Platform on Tribal Nation Religious Traditions

Yesterday the Democratic Party at its national convention adopted its 2016 Platform (full text).  This is the fourth in a series of seven posts that focus on Platform provisions dealing with religious discrimination and with social issues that often generate controversy defined in religious terms. Here is an excerpt from the Platform section on Honoring Indigenous Tribal Nations:

We will manage for tribal sacred places, and empower tribes to maintain and pass on traditional religious beliefs, languages, and social practices without fear of discrimination or suppression. We also believe that Native children are the future of tribal nations and that the Indian Child Welfare Act is critical to the survival of Indian culture, government, and communities and must be enforced with the statutory intent of the law.

Suit Between Indian Tribes Challenges Building Site For History Center

Non Doc reported yesterday on a federal court lawsuit filed in May by the Caddo Nation against the Wichita and Affiliated Tribes challenging the construction of a History Center by the Wichitas in western Oklahoma on land held jointly by the Wichita Tribe, Caddo Nation and Delaware Tribe.  A Caddo press release has further background.  The History Center is being built on a 71-acre parcel below a hill on which the Riverside Indian School is located.  The boarding school has been in operation since 1872 and was attended by Caddo students, as well as students from other tribes.  Students who died at the school were buried near it.  The Wichita say that all the graves are by the school at the top of the hill, but in the lawsuit members of the Caddo Nation contend that there are also graves at the site of the History Center below. According to Non Doc:

The Caddo filed a lawsuit May 25 seeking to halt construction for two weeks while the tribe conducted archeological work with ground-penetrating radar, or GPR, which can identify potential artifacts or features without the need to disturb a site by digging.

A U.S. District Court judge ordered a temporary stop to work at the site, one and a-half miles north of Anadarko, pending a hearing. The order was lifted May 31, and the Wichita resumed work. The Caddo then filed an appeal on June 7 to the 10th U.S. Circuit Court in Denver. No hearing date has been set at this time.

Cert. Denied In Challenge To Alabama Prisoner Grooming Restrictions

The U.S. Supreme Court yesterday denied review in Knight v. Thompson, (Docket No. 15-999, cert. denied 5/2/2016). (Order List.) In the case, the U.S. 11th Circuit Court of Appeals upheld the Alabama prison system's grooming requirement that prohibited Native American inmates from wearing long hair, even for religious reasons. (See prior posting.) AP reports on the denial of certiorari.

"Seven Drums" Believer Wins Right To Wear Fox Hat In License Photo

Willamatte Week and KTAU report on an Oregon man who recently won his administrative appeal to allow him to wear unusual head gear in his driver's license photo. The man, Jay Bishop, is a practitioner of the Washat religion, generally known as the Drummer-Dreamer or Seven Drums faith.  It is rooted in a Native American belief system held by Nez Perce tribes. Bishop wears a cable knit hat that looks like an orange and cream fox head-- the fox is his religious totem. While the local DMV office last summer allowed him to wear the hat in his license renewal photo, when the license got to the state level for review it was rejected because it was not compatible with the state's facial recognition software. Bishop was without a license for 9 months while his appeal was ongoing.  The DMV said it attempts to accommodate religious beliefs, but had never heard of this religion.

Suit Seeks To Bring Marijuana Under American Indian Religious Freedom Act

Courthouse News Service reported this week that Oklevueha Native American Church leaders James "Flaming Eagle" Mooney and Joy Graves filed suit in an Oregon federal district court on January 15 against the federal government and the U.S. Postal Service.  The suit claims that federal authorities illegally seized 5 ounces of sacramental marijuana mailed to a church member in Ohio last December. Plaintiffs claim that their use of marijuana is protected by the American Indian Religious Freedom Act.  National leaders of the Native American Church do not recognize the Oklevueha branch, nor do they agree with its claims that marijuana (as opposed to peyote) has sacramental use.  In 2013, a Hawaii federal district court rejected a claim under RFRA by Mooney. (See prior posting.) That decision is on appeal.

Mother's Move To Eskimo Village Does Not Justify Reduction In Her Child Support Obligations

In Sharpe v. Sharpe, (AK Sup. Ct., Jan. 8. 2016), the Alaska Supreme Court in a 3-2 decision upheld a trial court's denial of a mother's motion to reduce the amount she is required to pay under a child-support order. The mother, who is the non-custodial parent of an 10 year old daughter, gave up her high-paying Alaska pipeline job to move back to her Yup'ik Eskimo community.  She adopted a subsistence lifestyle there to meet her her cultural, spiritual, and religious needs and help her in her battle with alcohol. Under Alaska rules, the court can order a parent to pay more than would otherwise be justified by his or her current income level if the parent is "voluntarily and unreasonably" unemployed or underemployed. The majority concluded that this was a voluntary and unreasonable decision by the mother to earn less than she is capable of earning.

On appeal, the mother also argued that the child support order burdens her free exercise of religion as protected by the Alaska Constitution.  She contended that the order in effect requires her to give up her Native religious and cultural heritage to maintain a stressful job in Anchorage. The majority rejected her claim because it had not been raised at trial.

Justice Winfree dissenting argued in part:

Today’s decision has enormous negative implications. It trivializes and devalues Alaska Natives’ cultural, spiritual, and religious connections to their villages and their subsistence lifestyle.  It requires a non-custodial Native parent in rural Alaska to pay child support based on what the parent could earn in urban Alaska regardless of the legitimacy of choosing to live in rural Alaska.... [I]t infringes on constitutionally protected religious and privacy rights. 

Court Rejects Federal Challenges To School Ban On Graduate Wearing Eagle Feather

Having previously denied a preliminary injunction in the case (see prior posting), this week an Oklahoma federal district court dismissed a lawsuit brought by a Native American high school senior challenging a school policy that barred her from wearing an eagle feather on her mortar board tassel at her high school graduation. The feather had been given to her by a tribal elder, and it would be a sign of disrespect not to wear the feather which is sacred according to her religious beliefs. In Griffith v. Caney Valley Public Schools, (ND OK, Jan. 5, 2015), the court rejected plaintiff's free speech claim, concluding that graduation attire is school-sponsored speech, and that the school had a legitimate pedagogical reason for restricting decorations on graduation caps.   It rejected her First Amendment free exercise claim, finding that the regulation is a neutral rule of general applicability.  Finally the court refused to exercise its supplemental jurisdiction to decide plaintiff's claim that the school's restriction violates Oklahoma's Religious Freedom Act.  Plaintiff remains free to refile that claim in state court.

Court Rejects Free Exercise Defense In Marijuana Case

MLive reports that Branden James Barnes, who claims to be a medicine man for the Oklevueha Native American Church (ONAC), pleaded guilty on Tuesday in a Michigan federal district court to charges of manufacturing more than 50 marijuana plants.  The plea came after the court rejected arguments by Barnes' attorney that his marijuana production is protected by the 1st Amendment and RFRA. It was contended that in the ONAC, ritual use of marijuana provides a spiritual experience and healing.  Barnes attorney had argued that the changing attitudes toward marijuana, and its legalization in some states, undercuts prior holdings that the state has a compelling interest in regulating the drug. According to the government, ONAC is a scam-- providing a membership card for $200 which it represents allows the holder to freely possess and use controlled substances. The court also rejected Barnes' attempt to file his own appeal separate from the pleadings filed by his attorney. He argued that his attorney had failed to educate herself about ONAC.

Two Cert Denials of Interest As SCOTUS Opens 2015 Term

In the Order List issued yesterday at the beginning of the October 2015 Term, the U.S. Supreme Court denied certiorari in hundreds cases.  Among the cases in which the Court denied review were:

Phillips v. New York (Docket No. 14-1445): In the case, the U.S. 2nd Circuit Court of Appeals he U.S. Second Circuit Court of Appeals upheld New York's requirement that, subject to medical and religious exemptions, all children be vaccinated before attending public school. It also upheld, over free exercise objections, New York's regulation allowing officials to temporarily exclude students who are exempted from the vaccination requirement on religious grounds from school during an outbreak of a vaccine‐preventable disease. (See prior posting.) AP reports on the Court's action.

Sac and Fox Nation of Oklahoma v. Thorpe (Docket No. 14-1419): In the case the U.S. 3rd Circuit Court of Appeals held that despite its literal language, Congress did not intend the Native American Graves Protection and Repatriation Act to apply to protect Native American rights in a dispute between the sons of famous Native American Athlete Jim Thorpe and the Pennsylvania town that renamed itself after Thorpe in an agreement with Thorpe's widow (his third wife) to have his remains buried there.  (See prior posting). New York Daily News has more background and reports on the court's action.