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.
New Scholarship Defending Non-Lawyer Judges and Advocates in Tribal Justice Systems
Judith M. Stinson, Tara Mospan, and Marnie Hodahkwen have posted “Trusting Tribal Courts: More Lawyers is Not Always the Answer” on SSRN. The paper is forthcoming in the Law Journal for Social Justice at ASU.
The abstract:
Many outsiders distrust tribal courts because they assume they will be treated unfairly. This distrust creates a number of problems, including decreasing the effectiveness of tribal judicial systems, inhibiting tribal economic development, and ultimately undermining tribal sovereignty. Critics of tribal courts assert three main justifications for their structural skepticism: first, that tribal courts are “different” from other court systems in the United States; second, that tribal laws and traditions seem foreign and may be difficult to access; and third, that because the qualifications for judges and practitioners in tribal courts sometimes differ from those in other courts, tribal judges and advocates are inferior. Drawing on other scholarship, this article briefly responds to the first two criticisms. This paper then argues that non-lawyer judges and lay advocates can be as effective as law-trained judges and advocates in other court systems. Although it is impossible to eliminate all outsider bias, refuting the claimed justifications should demonstrate that tribal courts are as fair and as competent as non-tribal courts. Therefore, greater confidence in tribal courts is warranted.
Ann Tweedy on Cathleen D. Cahill’s Study of Women of Color’s Contributions to the Suffragist Movement
Ann Tweedy has published “Uncovering the Little Known History of History of Suffragists of Color” in JOTWELL. The article reviews Cathleen D. Cahill, Recasting the Vote: How Women of Color Transformed the Suffrage Movement (2020).
2021 Inaugural Morelli Colloquy — Belonging and Difference: Interdisciplinary Perspectives
Here. My presentation materials are here: Anishinaabe Gaganoozh Comic Book.
Schedule
Welcome and Introductions | 9:00-9:15 a.m.
Opening Keynote Conversation | 9:15-10:15 a.m.
- Tiffany N. Florvil (University of New Mexico College of Arts & Sciences)
- Natsu Taylor Saito (Georgia State University College of Law)
Break | 10:15-10:30 a.m.
First Panel | 10:30 a.m.-12:00 p.m.
- Jeannine Bell (Indiana University Maurer School of Law)
- Manuela Boatcă (Albert Ludwig University of Freiburg Institute for Sociology)
- Matthew L.M. Fletcher (Michigan State University College of Law)
Lunch Break | 12:00-1:00 p.m.
Second Panel | 1:00-2:30 p.m.
- Sahar Aziz (Rutgers Law School)
- Chandra Frank (University of Cincinnati College of Arts and Sciences)
- Khary Oronde Polk (Amherst College, Departments of Black Studies and Sexuality, Women’s & Gender Studies)
Closing Conversation | 2:30-3:30 p.m.
- Sunnie Rucker-Chang (University of Cincinnati College of Arts and Sciences)
- Yolanda Vázquez (University of Cincinnati College of Law)
Planning Committee
Emily Houh
University of Cincinnati College of Law
Co-founder, Jones Center for Race, Gender, and Social Justice
Kristin Kalsem
University of Cincinnati College of Law
Co-founder, Jones Center for Race, Gender, and Social Justice
Sunnie Rucker-Chang
University of Cincinnati College of Arts & Sciences
Assistant Professor of Slavic, Director of European Studies
Former Wind River Chief Judge Disbarred by Wyoming SCT
Here is the order in Board of Professional Responsibility v. Smith:
Interior: “Robert Anderson Nominated as Solicitor of the Department of the Interior”
Here.
Inuit Ataqatigiit Party Wins Greenland Elections
Here is “China’s Greenland Ambitions Run Into Local Politics, U.S. Influence” [Wall Street Journal].
Press Release on Brackeen v. Zinke
Please see the press release from the California Tribal Families Coalition here:
Brackeen Decision Summary
Based on my inbox, my ims, and my texts, the best thing I can do this morning is a post on the decision. A few caveats–I will not speculate about what happens next because I don’t know what’s going to happen next and it’s frankly not helpful. This is my own understanding of a ridiculously complicated opinion less than 24 hours after it was released and no one else’s, but I am indebted to a number of practitioners last night who emailed and texted as we worked our way through it. They know who they are.
Judge Dennis and Judge Duncan each wrote about 150 pages, clearly hoping one or the other would gain the majority. Then five additional judges (Owen, Wiener, Haynes, Higginson, Costa) wrote concurrences and dissents and/or both. The first five pages of the document are a per curiam description of where everyone ended up. These five pages are probably the most helpful part of the decision. What makes this decision particularly confounding is that due to the make up of the court, there was an opportunity for an evenly split bench, which is what happened a lot. And as Indian law practitioners know all too well, a split bench doesn’t make for a precedential decision (and are supposed to be super short, but no such luck here).
Application
I think the best place to start is the question I’ve been asked the most–where does this apply? How will this affect my on-going case? First, the mandate issue date on the opinion is not until June 1 (this is in PACER). Therefore, if nothing happens at all (remember, I’m not future speculating), then none of this applies till June 1. Second, I believe the parts of the decision that the majority agrees on is applicable only in the Fifth Circuit. Much like no one in California or Michigan much cares about the Neilson v. Ketchum decision in the Tenth Circuit, there’s no real reason for a vast majority of state courts to wrestle with this case.
The evenly split parts? I like to think of them as an unpublished advisory opinion. Take a look at footnote one to address those parts. The Court uses the term “affirmed without precedential opinion” which does not appear in any Westlaw search I’ve done so far. However, as I pointed out last night, Judge Costa’s concurrence and dissent (which appears at the very end of the document) points out pretty clearly that the federal court decision is not binding on a state court. He then addresses the way in which this decision cannot provide redressability. The language in his first paragraph on page 307 may prove to be the most helpful those who wrote me about on-going cases. I’m going to put it in here because I appreciate his writing:
It will no doubt shock the reader who has slogged through today’s lengthy opinions that, at least when it comes to the far-reaching claims challenging the Indian Child Welfare Act’s preferences for tribe members, this case will not have binding effect in a single adoption. That’s right, whether our court upholds the law in its entirety or says that the whole thing exceeds congressional power, no state family court is required to follow what we say.
2 from Judge Costa’s decision, 307 in the PDF
ICWA is Constitutional
If you’ve made it this far, let’s start with the good news–these are things the majority agreed on:
[T]he en banc court holds that Congress was authorized to enact ICWA. We conclude that this authority derives from Congress’s enduring obligations to Indian tribes and its plenary authority to discharge this duty.
***
In addition, for the en banc court, we hold that ICWA’s “Indian Child” designation and the portions of the Final Rule that implement it do not offend equal protection principles because they are based on a political classification and are rationally related to the fulfillment of Congress’s unique obligation toward Indians.
***
We also hold for the en banc court that § 1915(c) does not contravene the nondelegation doctrine because the provision is either a valid prospective incorporation by Congress of another sovereign’s law or a delegation of regulatory authority.
***
Further, we hold for the en banc court that the BIA acted within its statutory authority in issuing binding regulations, and we hold for the en banc court that the agency did not violate the APA when it changed its position on the scope of its authority because the agency provided a reasonable explanation for its new stance.
152 from Judge Dennis’s opinion, 159 in the PDF
Judge Dennis would have held for the Defendants and completely reversed the district court on all issues except standing, had he garnered a majority of the court.
In addition, here are the specific ICWA provisions challenged and either found constitutional by the majority:
1911(c)
1912(b)
1912(c)
1912(e), (f) (except for QEW)
1913(a)-(d)
1914
1915(c)
1916(a)
1917
or could not garner a majority and are therefore not precedential:
1915 (a)-(b)
1912 (a)
1951 (a)
Provisions of ICWA and the Regs that May Not Apply in the Fifth Circuit
Judge Duncan’s opinion essentially stands for the exact opposite conclusions, but he did not get a majority. He only got a majority on three issues. The majority agreed the following in ICWA are unconstitutional as applied to states under the commandeering doctrine in the Fifth Circuit:
25 U.S.C. 1912(d) (Active efforts provision) (Judge Duncan’s decision, IIII(B)(1)(a)(i))
25 U.S.C. 1912(e), (f) as it applies to the qualified expert witness provision (Judge Duncan’s decision, III(B)(1)(a)(ii))
25 U.S.C. 1915(e) (recordkeeping regarding placements) (Judge Duncan’s decision, III(B)(1)(a)(iv))
In addition, the parts of the Final Rule that implement those provisions are also no longer applicable, though I would draw people’s attention to 25 C.F.R. 23.144 which addresses severabillity. I believe there is an argument to be made that these provisions are only knocked out as to the states in the Fifth Circuit, not to private parties. The Court did not identify the specific rules that implement 1912(d)-(f) and 1915(e), so here is my best guess on which ones may not longer apply in the Fifth Circuit:
25 C.F.R. 23.2 (active efforts definition)
25 C.F.R. 23.120 (active efforts)
25 C.F.R. 23.121 (but only the parts that reference qualified expert witness)
25 C.F.R. 23.122 (qualified expert witness)
The Court did specifically reject by majority the following provisions of the Final Rule:
25 C.F.R. 23.132 (b) (that good cause to deviate from the placement preferences requires a clear and convincing evidence standard/finding)
25 C.F.R. 23.141 (specifically identified as rejected/record keeping)
I apologize for not stating something that I should have said at the start:
This decision has no effect on state ICWA laws, since it is based on commandeering (the feds making the states do something, not the state choosing to do something) or the APA (again, if a state wants to maintain records, it can, and state laws or court decisions that enforce a C&C burden for good cause based on ICWA itself or state law should be fine as well.).
Trust me when I say, there are a LOT of words in this decision (I had to briefly walk away when I hit footnote 2, an extraordinarily long, multipage footnote on Madison and the Federalist papers), but a lot of the words are just that. There’s very little legal substance here. I think it’s revealing to read the attempt at remedy in Judge Duncan’s opinion–as had been argued repeatedly, nothing this court decided would redress the harms claimed by the plaintiffs.
Students at the MSU Indian Law Clinic will be working on additional materials, such as breaking down the decision by judge if possible, and developing a chart (as are a number of other groups). Ours will be directed for the audience of in-house ICWA counsel. I hope this is helpful.
Turtle Talk 
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