cultural resources

Alaska COA Rejects Yup’ik Free Exercise Defense to Criminal Prosecution for Salmon Fishing

Matthew L.M. Fletcher

Here is the opinion:

Phillip v. State

An excerpt:

In June 2012, the thirteen defendants in this case — all Yup’ik fishermen living a subsistence lifestyle — were charged with violating the Alaska Department of Fish and Game’s emergency orders restricting fishing for king salmon on the Kuskokwim River. The defendants moved for dismissal of the charges, asserting that their fishing for king salmon was religiously based activity, and that they were entitled to a religious exemption from the emergency orders under the free exercise clause of the Alaska Constitution.

Briefs are here.

Yakama/Umatilla Prevail against Fish and Wildlife Service in Sacred Sites Question

Matthew L.M. Fletcher

Here are the materials in Confederated Tribes and Bands of the Yakama Nation v. Fish and Wildlife Service (E.D. Wash.):

1 Complaint

49 Umatilla Motion for Summary J

50 Yakama Motion for Summary J

52 FWS Motion for Summary J

54 Yakama Reply

55 Umatilla Response

56 FWS Reply

60 DCT Order

An excerpt:

Although the NHPA and its accompanying regulations do not mandate a particular substantive outcome, its procedural requirements are obligatory. This Court would be derelict in its duties if it failed to enforce the minimal procedural protections guaranteed the Tribes. True, the Service, after reopening consultation with the parties, may reasonably conclude that the expanded program of wildflower tours will have no adverse effect on the Lalíik TCP. But this hypothetical cannot influence the Court’s current analysis. Instead, the relevant focus is whether the Service complied with the relevant statute and regulations: did the Service “stop, look, listen,” and carefully consider tribal input before moving ahead with the greatly expanded undertaking? Or, instead, did the Service stop, look at past tribal consultations on similar proposals, and inappropriately assume that each Tribe would merely voice its blanket opposition rather than providing additional insight to or suggested mitigation measures for the expanded undertaking? Because this Court concludes the latter occurred here, the only remedy is to set aside the Agency’s no adverse effect finding on the updated proposal and order the Service to reengage in the consultation process before conducting any additional wildflower tours within the Lalíik TCP, if it still chooses to pursue the undertaking.

CA Native American Heritiage Commission Threatens Lawsuit Regarding the Feather River West Levee Project

Matthew L.M. Fletcher

Here is the commission’s report:

NAHC_FRWLPInvestigativeReport

News coverage here.

Traverse City to Decide What to Do with 7000 Native Artifacts

Matthew L.M. Fletcher

Here is “What’s Next For The Con Foster Collection?”

According to the article, “The city is likely in violation of the Native American Graves Protection and Repatriation Act (NAGPRA) of 1990, which outlines a process for returning certain Native American cultural items to lineal descendants.”

Northern Arapaho Tribe Prevails against Fish & Wildlife Service/Eastern Shoshone Tribe over Eagle Permits in Accordance with Hobby Lobby

Matthew L.M. Fletcher1 Comment

Here is the opinion in Northern Arapaho Tribe v. Ashe (D. Wyo.):

93 DCT Order

An excerpt:

While the foregoing discussion is mired in legal nuance, at the end of the day, the federal government burdened one federally-recognized Indian tribe’s free exercise of religion based on the religious objection of another federally-recognized Indian tribe. Whether the First Amendment prevents the federal government from imposing the burden of law on one federally-recognized Indian tribe’s free exercise of religion for the benefit of another is a question of first impression, but it is clear that the First Amendment forbids such conduct—”The principle that government, in pursuit of legitimate interests, cannot in a selective manner impose burdens only on conduct motivated by religious belief is essential to the protection of the rights guaranteed by the Free Exercise Clause.” Church of the Lukumi Babalu Aye, 508 U.S. at 542. The Court finds that Defendants’ decision in its informal adjudication of Plaintiffs’ permit application violated the Free Exercise Clause of the First Amendment because the decision was not justified by a compelling governmental interest and was not narrowly tailored to advance the asserted interest.

The Court finds and that Defendants made an error of law when adjudicating Plaintiffs’ permit application and that Defendants’ error is capable of repetition, yet evading review. Therefore, this Court must set aside Defendants’ Permit Findings and Renewal Permit Findings, and remand to the U.S. Fish and Wildlife Service to reconsider those findings consistent with this Order. “When an administrative agency has made an error of law, the duty of the Court is to correct the error of law committed by that body, and, after doing so to remand the case to the [agency] so as to afford it the opportunity of examining the evidence and finding the facts as required by law.” Miami Tribe of Oklahoma v. United States, 656 F.3d 1129, 1138 (10th Cir. 2011).

Briefs:

79 NAT Motion for Summary J

85 Eastern Shoshone Supplement to Amicus Brief

87 FWS Motion for Summary J

89 NAT Opposition

90 NAT Reply

92 NAT Letter re Hobby Lobby

News coverage here.

Prior to Hobby Lobby, the court had not allowed the N. Arapaho Tribe to add an establishment clause claim, materials here.

A 2012 order on the merits — again, pre-Hobby Lobby — with materials is here.

Review: ‘The Plains Indians,’ America’s Early Artists, at the Met

Teresa Walrod

Some of the earliest surviving art by native North Americans left America long ago. Soldiers, traders and priests, with magpie eyes for brilliance, bundled it up and shipped it across the sea to Europe. Painted robes, embroidered slippers and feathered headdresses tinkling with chimes found their way into cupboards in 18th-century London and Paris, and lay there half-forgotten. Continue reading →

NYTs: “Debate Over ‘Redskins’ as Nickname Trickles Down to Buffalo Suburb”

Matthew L.M. Fletcher2 Comments

Here.

Rick Collins on Strict Scrutiny in Religious Freedom Cases & American Indian Sacred Sites Claims

Matthew L.M. Fletcher

Richard B. Collins has posted “Too Strict?” on SSRN. It is forthcoming in the First Amendment Law Review.

The abstract:

Should the strict scrutiny standard govern judicial review of claims that government has burdened religious freedom? American law’s patchwork of rules applies that demanding standard to some claims but denies any meaningful review to others. A major difficulty is that most claims alleging denial of religious freedom depend on beliefs that cannot be reviewed by secular courts. Claims based on allegations alone shift the burden to the defending government. Strict scrutiny purports to make justification very difficult; governments are supposed to lose most cases. A second defect of the test in religious freedom cases is its failure to consider harm that granting a claim may inflict on other persons; the test asks only about government interests. When judges suspect a claim may be trivial or false or unfair to others, they look for ways around the test. This accounts for the failure rate of strict scrutiny when it was the constitutional test and for the Court’s 1990 abandonment of that test. Another result is failure of nearly all sacred sites claims made by American Indian faiths.

Congress restored strict scrutiny for some claims by statute, reviving the problem. Ohio claimed that one of these statutes violated the Establishment Clause. The Court rejected the facial attack but in dictum suggested a solution. It said the Establishment Clause as applied should require consideration of interests of persons who would be harmed by sustaining a religious claim, and the context of religious freedom should make strict scrutiny less strict. That would bring American law into accord with doctrines applied abroad, notably by the European Court of Human Rights. But the Court’s 2014 Hobby Lobby decision instead allowed wealthy corporate owners to prevail over their employees in opinions that seemed to let religious claims override interests of others.

Washington Football Team Argues Lanham Act/TTAB Decision Violates First and Fifth Amendments

Matthew L.M. Fletcher1 Comment

Here is the opening brief in Pro-Football Inc. v. Blackhorse (E.D. Va.):

53 DCT Order on Briefing Schedule

56 Pro-Football Motion for Summary J on Constitutional Claims

According to the briefing schedules, briefs are going to be flying fast and furious. We’ll try to keep up.

Prior materials on the federal government intervention here, and the now-denied motion to dismiss here.