Here is the opinion in Cressman v. Thompson.
Prior Tenth Circuit case here.
Here is the opinion in Northern Arapaho Tribe v. Ashe (D. Wyo.):
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).
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.
This appeal concerns an image stamped on the standard Oklahoma license plate ofa Native American shooting an arrow toward the sky. Appellant Keith Cressman objects to the image as a form of speech and wishes not to display it on his personal vehicles.But Oklahoma law imposes sanctions for covering up the image, and the state charges fees for specialty license plates without it—fees that Mr. Cressman does not want to pay. Because he must either display the image or pay additional fees, he argues that the state is compelling him to speak in violation of his First Amendment rights.
And the briefs:
Lower court materials here.
Here are the new materials in Northern Arapaho Tribe v. Ashe (D. Wyo.):
With these principles in mind, the Court denies Plaintiffs’ motion because they waited too long to amend their complaint. Plaintiffs knew or should have known the facts underlying an Establishment Clause claim when they filed their amended complaint nearly a year ago. And Plaintiffs undoubtedly knew about the Establishment Clause claim by May 31, 2012, because on that date they filed a memorandum stating that “[d]efendants’ denial of the [tribe’s] permit application creates Establishment Clause problems.” Pls.’ Mem. 14 n.19, ECF No. 30. Yet Plaintiffs waited over eight months from the time they clearly knew about the Establishment Clause claim to file the present motion. That’s simply too long a wait. The Court therefore DENIES Plaintiffs’ motion for leave to amend their complaint (ECF No. 59) based on undue delay.
Our prior post on this case is here.
As usual, Sam Deloria is ahead of the curve in thinking about broad issues of Indian law and policy.
From Sam Deloria:
[Are there] any plans to raise this [San Francisco Peaks and the Arizona Snowbowl] as the first situation in which the Obama administration can demonstrate its understanding of the UN declaration it just embraced?
[Is] anyone … taking a stab at formulating a way for the executive branch of USG to give principled accommodation to Indian religious concerns without running afoul of the Establishment Clause?
[I] think we need to write the formula ourselves instead of waiting for them to do it, and I think we need to understand their bewilderment and their need to understand the scope of any accommodation we ask for.
In general, I think at this point in most processes, we go limp and expect the government to do the hard work, which is to try to draw the line between ok and not-ok. And then we criticize them for not doing it, although we haven’t done much to help them. By dismissing their questions as being merely insensitivity, we forfeit the chance to influence the outcome.
Comments are welcome.