Kyle Whyte on Time, Kinship, and Climate Change

Kyle Whyte has posted “Time and Kinship” on SSRN. Here is the abstract:

Climate change is often discussed in terms of linear units of time. This essay covers the meaning of linear time and its implications for how climate change is narrated. There are concerns about how narrating climate change in this way can eclipse issues of justice in the energy transition. There are of course different ways of telling time. This essay provides a narration of climate change inspired by particular Indigenous scholars and writers. These conceptions of time narrate time through kinship, not linearity. One implication is that issues of justice are inseparable from the experience of climate change.

Ksanka Kupaqa Xaʾⱡȼin Prevails in Rock Creek Mine Challenge

Here are the materials in Ksanka Kupaqa Xaʾⱡȼin v. United States Fish and Wildlife Service (D. Mont.):

99 Amended Complaint

108 Ksanka Kupaqa Xa’lcin MSJ

110 Intervenor MSJ

114 Federal MSJ

117 Ksanka Kupaqa Xa’lcin Reply

120 Intervenor Reply

121 Federal Reply

131 DCT Order

Kristen Carpenter’s Book Review of McNally’s “Defending the Sacred” in the Harvard Law Review

Kristen A. Carpenter has published “Living The Sacred: Indigenous Peoples and Religious Freedom” in the Harvard Law Review, reviewing Michael McNally’s “Defend the Sacred: Native American Religious Freedom Beyond the First Amendment.”

OMB Withdraws Sale of Seattle National Archives For Want of Tribal Consultation

Here are new materials in State of Washington v. Fairweather:

Doc 52

OMB Memo_Withdrawing Approval for Sale of Seattle NARA Building

Prior post here.

New Scholarship on Substantial Burdens on Native Religious Exercise

Joel West Williams and Emily deLisle have posted “An ‘Unfulfilled, Hollow Promise’: Lyng, Navajo Nation, and the Substantial Burden on Native American Religious Practice,” forthcoming in the Ecology Law Quarterly, on SSRN. Here is the abstract:

Many Native American religious practices are linked to sacred sites – places in the natural world that have been used for ceremonies and rites since time immemorial. Often, particular ceremonies and rituals can only be performed at these locations. Many such sacred sites are located on what is, today, public land owned by federal government. The government has at times desecrated, destroyed, or barred access to sacred sites, rendering Native religious exercise extremely difficult or impossible.

The Religious Freedom Restoration Act (RFRA) was enacted to provide an alternative source of protection for religious exercise in the wake of Employment Division v. Smith’s restrictive interpretation of the Free Exercise Clause. RFRA provides that a government measure that “substantially burden[s]” a person’s exercise of religion will be subject to strict scrutiny. The statute has been successfully invoked by litigants against the government in a wide variety of cases. However, Native American litigants seeking protection for sacred sites located on public lands have been mostly unable to rely on RFRA’s protection. This is in large part because courts have mistakenly interpreted RFRA’s “substantial burden” requirement as incorporating Free Exercise jurisprudence, which has arbitrarily excluded most sacred sites claims from heightened scrutiny simply because the sites were located on public lands. Native Americans are thus denied the same level of religious free exercise that is enjoyed by other groups.

This article illustrates why this overly narrow interpretation of RFRA’s “substantial burden” requirement is erroneous. It demonstrates that courts, especially the Ninth Circuit, have construed “substantial burden” in a manner that is inconsistent with fundamental principles of statutory interpretation, with RFRA’s purpose, and with the Supreme Court’s own reasoning in recent cases including Burwell v. Hobby Lobby and Holt v. Hobbs. We highlight how courts applying this prevailing interpretation reach the absurd conclusion that government actions that erase sacred sites and destroy practitioners’ ability to worship do not constitute a “substantial burden” upon religious exercise.

The article then proposes an alternative textualist, plain-meaning understanding of RFRA’s substantial burden requirement which corrects these serious errors while requiring courts to appropriately weigh sacred sites claims against countervailing government interests – realizing RFRA’s promise of equal and meaningful religious freedom for Americans of all faiths.

Laguna and Jemez Pueblos Sue EPA over Clean Water Act Rules

Here is the complaint in Pueblo of Laguna v. Regan (D.N.M.):

1 Complaint

An excerpt:

13. The Agencies repealed the 2015 Clean Water Rule and then reversed their longstanding policy by promulgating a new, much narrower interpretation of the “waters of the United States.” Definition of “Waters of the United States” — Recodification of Pre-Existing Rules, 84 Fed. Reg. 56,626 (Oct. 22, 2019) [hereinafter the 2019 Repeal Rule]; The Navigable Waters Protection Rule: Definition of “Waters of the United States,” 85 Fed. Reg. 22,250 (Apr. 21, 2020) [hereinafter the 2020 Navigable Waters Rule]. The 2020 Navigable Waters Rule follows the directive of Executive Order 13,778, but without due regard for established law.
14. The 2019 Repeal Rule and 2020 Navigable Waters Rule are inconsistent with both the CWA’s objective of “maintain[ing] the chemical, physical, and biological integrity of the Nation’s waters” and the Rapanos significant nexus test.
15. The 2019 Repeal Rule and the 2020 Navigable Waters Rule harm the Pueblos by removing federal CWA water pollution protections from many of the ephemeral streams and other waterbodies that sustain the Pueblos. These rules remove CWA protections from 79% to 97% of stream miles in the Pueblo of Laguna. These rules remove CWA protections from 94% of stream miles in the Jemez watershed and 87% of stream miles on Jemez Pueblo trust lands.
16. Where a waterbody is not determined to be a “water of the United States,” the Pueblos alone are left to establish and administer water pollution control programs at their own expense.

17. However, the Pueblos rely on the Agencies to implement nearly all of the CWA’s pollution programs on their behalf and do not have the financial or administrative resources or capacity to administer these programs themselves.

18. Further, both Pueblos rely on the federal jurisdiction of the CWA to protect themselves from upstream pollution.
19. For the Pueblos, high water quality is essential to day-to-day life, as well as
cultural and religious practices.

20. The removal of federal jurisdiction creates the imminent risk of the degradation and destruction of the Pueblos’ waters and would harm the Pueblos’ agriculture, as well as cultural and religious practices.