Briefing in Attempt to Enjoin Copper Mining Project at Chi’chil Biłdagoteel [Oak Flat]

Here are the materials in Apache Stronghold v. United States (D. Ariz.):

1 Complaint

7 Motion for TRO

18 US Response

23 Reply in Support of 7

50 US Closing Brief

51 Apache Stronghold Closing Brief

56 Amicus Brief

Stephanie Hall Barclay & Michalyn Steele on Protections for Indigenous Sacred Sites

Stephanie Hall Barclay & Michalyn Steele have published “Rethinking Protections for Indigenous Sacred Sites” in the Harvard Law Review. Here is the abstract:

Meaningful access to sacred sites is among the most important principles to the religious exercise of Indigenous peoples, yet tribes have been repeatedly thwarted by the federal government in their efforts to vindicate this practice of their religion. The colonial, state, and federal governments of this Nation have been desecrating and destroying Native American sacred sites since before the Republic was formed. Unfortunately, the callous destruction of Indigenous sacred sites is not just a troubling relic of the past. Rather, the threat to sacred sites and cultural resources continues today in the form of spoliation from development, as well as in the significant barriers to meaningful access Indigenous peoples face.

Scholars concerned about government failure to protect Indigenous sacred sites on government property have generally agreed that the problem stems from the unique nature of Indigenous spiritual traditions as being too distinct from non-Indigenous religious traditions familiar to courts and legislators, and therefore eluding protection afforded to other traditions. By contrast, this Article approaches the problem from an entirely different angle: we focus instead on the similarities between government coercion with respect to Indigenous religious exercise and other non-Indigenous religious practices. We illustrate how the debate about sacred sites unwittingly partakes in longstanding philosophical debates about the nature of coercion itself — a phenomenon that has previously gone unnoticed by scholars. This Article argues that whether or not one formally labels the government’s actions as “coercive,” the important question is whether the government is bringing to bear its sovereign power in a way that inhibits the important ideal of religious voluntarism — the ability of individuals to voluntarily practice their religious exercise consistent with their own free self-development. Indeed, this is precisely the sort of question courts ask when evaluating government burdens on non-Indigenous religious exercise. The failure to ask this same question about voluntarism for Indigenous religious practices has created a double standard, wherein the law recognizes a much more expansive notion of coercion for contexts impacting non-Indigenous religious practices, and a much narrower conception of coercion when it comes to Indigenous sacred sites.

This egregious double standard in the law ought to be revisited. Doing so would have two important implications. First, when government interference with religious voluntarism is viewed clearly, tribal members and Indigenous practitioners should be able to prove a prima facie case under statutes like the Religious Freedom Restoration Act much more easily. Second, this Article makes the novel claim that clearer understanding of the coercive control government exercises over sacred sites should animate a strong obligation under the government’s trust responsibility and plenary power doctrine to provide more — rather than less — robust protection of Indigenous sacred sites.

Stephanie Barclay & Michalyn Steele on Indian Sacred Sites

Stephanie H. Barclay & Michalyn Steele have posted “Rethinking Protections for Indigenous Sacred Sites,” forthcoming in the Harvard Law Review.

Here is the abstract:

Meaningful access to sacred sites is among the most important principles to the religious exercise of indigenous peoples, yet tribes have been repeatedly thwarted by the federal government in their efforts to vindicate this practice of their religion. The colonial, state, and federal governments of this Nation have been desecrating and destroying Native American sacred sites since before the Republic was formed. Unfortunately, the callous destruction of indigenous sacred sites is not just a troubling relic of the past. Rather, the threat to sacred sites and cultural resources continues today in the form of spoliation from development, as well as in the significant barriers to meaningful access indigenous peoples face.

Scholars concerned about government failure to protect indigenous sacred sites have generally agreed that the problem stems from the unique nature of indigenous spiritual traditions as being too distinct from non-indigenous religious traditions familiar to courts and legislators and therefore eluding protection afforded to other traditions. By contrast, this Article approaches the problem from an entirely different angle: we focus instead on the similarities between government coercion with respect to indigenous religious exercise and other non-indigenous religious practices. We illustrate how the debate about sacred sites unwittingly partakes of longstanding philosophical debates about the nature of coercion itself—a phenomenon that has previously gone unnoticed by scholars. This Article argues that whether or not one formally labels the government’s actions as “coercive,” the important question is whether the government is bringing to bear its sovereign power in a way that inhibits the important ideal of religious voluntarism—the ability of individuals to voluntarily practice their religious exercise consistent with their own free self-development. Indeed, this is precisely the sort of question courts ask when evaluating government burdens on non-indigenous religious exercise. The failure to ask this same question about voluntarism for indigenous religious practices has created a double standard, wherein the law recognizes a much more expansive notion of coercion for contexts impacting non-indigenous religious practices, and a much narrower conception of coercion, in the tradition of Robert Nozick, when it comes to indigenous sacred sites.

This egregious double standard in the law ought to be revisited. Doing so would have two important implications. First, when coercion is viewed clearly, tribal members and indigenous practitioners should be able to prove a prima facie case under statutes like the Religious Freedom Restoration Act (RFRA) much more easily. Second, this Article makes the novel claim that clearer understanding of the coercive control government exercises over sacred sites should animate a strong obligation under the government’s trust responsibility and plenary power doctrine to provide more—rather than less—robust protection of indigenous sacred sites.

Highly recommended!!!

Ohio COA Rules against Country Club Built on Ancient Native Mounds

Here are the available materials in State ex rel. Ohio History Connection v. Moundbuilders Country Club Company:

Petition

Opinion

Brown University Discussion on Indian Sacred Sites

Here:

“Sacred Sites, Federal Indian Law, and the Future”

3:00 pm to 6:30 pm

IBES Room 130, 85 Waterman Street

The political and social dynamics of American Indian sacred sites and basic human rights protections within the contemporary U.S. are constantly evolving. This panel, including various legal scholars, community leaders, and activists, will explore issues of human rights, self-determination, sovereignty, and potential International legal remedies in order to better understand the contemporary realities of misunderstanding, lack of social justice, U.S. constructed hierarchies of economic and political inequality, and overall legacies of colonialism.

Keynote Speaker at 3:00pm – 4:30pm

  • Rebecca Tsosie, Regents Professor of Law at the University of Arizona James E. Rogers College of Law with the Indigenous Peoples Law and Policy (IPLP) Program and Special Advisor to the Vice Provost for Diversity and Inclusion for the University of Arizona. She has extensive experience working with tribal communities across Indian Country and currently serves as appellate judge for the Fort McDowell Yavapai Nation’s Supreme Court and San Carlos Apache Tribe’s Court of Appeals.

Panel Discussion at 4:45pm – 6:30pm

  • Matthew L.M. Fletcher, Professor of Law at Michigan State University College of Law and Director of the Indigenous Law and Policy Center. He sits as the Chief Justice of the Poarch Band of Creek Indians Supreme Court and also sits as an appellate judge for the Grand Traverse Band of Ottawa and Chippewa Indians, the Mashpee Wampanoag Tribe, the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians, the Pokagon Band of Potawatomi Indians, the Hoopa Valley Tribe, the Nottawaseppi Huron Band of Potawatomi Indians, and the Santee Sioux Tribe of Nebraska. He is a member of the Grand Traverse Band, located in Peshawbestown, Michigan.
  • Wendsler Nosie Sr., Activist, Founder of the organization Apache Stronghold, and Councilman of the San Carlos Apache Tribe.
  • Nizhoni Pike, youth activist, part of Apache Stronghold.

A CSREA Faculty Grant Event. Organized by Nicholas Laluk, Postdoctoral Fellow with CSREA and the Department of Anthropology.

Cosponsored by the Taubman Center for American Politics and Policy, Native American and Indigenous Studies, and the Haffenreffer Museum of Anthropology.

Wisconsin SCT Briefs in Wingra Redi-Mix, Inc. v. State Historical Society of Wisconsin

Here:

wingra opening brief

ho-chunk nation response brief

state historical society brief

reply

News coverage of oral argument here.

Lower court materials here.

Federal Court Declines to Dismiss Challenge to BLM “Traditional Cultural Property” Label on Western Shoshone Sites

Here are the materials in Battle Mountain Band of the Te-Moak Tribe of Western Shoshone Indians v. United States Bureau of Land Management (D. Nev.):

103 US Motion to Dismiss Cross Claims

105 Battle Mountain Motion to Dismiss Cross-Claims

112 Carlin Response to 103

113 Carlin Response to 105

119 Reply in Support of 105

120 Reply in Support of 103

124 DCT Order Denying 103

125 DCT Order Denying 105