Here is the commission’s report:
News coverage here.
cultural resources
Traverse City to Decide What to Do with 7000 Native Artifacts
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.”
Jessica Rickert on the Heard Museum
Here.
Northern Arapaho Tribe Prevails against Fish & Wildlife Service/Eastern Shoshone Tribe over Eagle Permits in Accordance with Hobby Lobby
Here is the opinion in Northern Arapaho Tribe v. Ashe (D. Wyo.):
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:
85 Eastern Shoshone Supplement to Amicus Brief
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
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”
Here.
Rick Collins on Strict Scrutiny in Religious Freedom Cases & American Indian Sacred Sites Claims
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
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.
Bainbridge Island Human Remains to Be Repatriated to Suquamish
The remains were found by workers on private land in 2012, but the homeowners and workers kept quiet about the discovery. Here.
Pa. High School Student Newspaper Editor: “My High School Mascot Is Offensive”
Here. An excerpt:
When I raised my hand to vote in a classroom at Neshaminy High School nearly 18 months ago, I was unaware of the battle I was about to ignite as editor-in-chief of The Playwickian, my school’s newspaper. In the fall of 2013, one of my fellow editors began a conversation about our school mascot, which is also the name of every sports team at our school and our school’s nickname. This would soon become a national controversy over our use of a racist mascot and a legal battle over the amount of control students have over their publications in public schools.
This mascot is the “Redskin.” It has been consistently criticized by a Native American parent within our Pennsylvania school district for its derogatory and hateful connotation. The paper’s staff and I came to a consensus that we should listen to what this parent had to say and start a conversation about the future use of the mascot, given how offensive it is to Native Americans. We debated, did our research, and ultimately came to a vote—14-7—in favor of removing the mascot—and the football team’s name—entirely from our newspaper, essentially forming a new policy. Both the majority and the dissenting sides wrote editorials, and we went to press Oct. 23, 2013.
—Brent Greenwood for Education Week; image text from Winona Daily Republican, 1863As the editor-in-chief since 2013, I continue to face reproach for this decision, including the possibility of criminal charges, as well as a lot of social-media bashing by my peers and the parents in my school district.
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