Michael McNally on Indian Sacred Sites

Michael D. McNally has published “The Sacred and the Profaned: Protection of Native American Sacred Places That Have Been Desecrated” in the California Law Review. PDF

Here is the abstract:

From Standing Rock to San Francisco Peaks, Native American efforts to protect threatened sacred places in court have been troubled by what this Article identifies as the profanation principle: a presumption that places already profaned or degraded by development or pollution can no longer be sufficiently sacred to Native peoples to merit protection. When the Supreme Court of Hawai’i rejected Native Hawaiian challenges to a massive new telescope on Mauna Kea because its summit was already developed, the sole dissenting justice termed it the “the degradation principle”: a view that because eleven telescopes had already despoiled the summit, the new telescope would cause no substantial adverse impacts on natural and cultural resources. This Article draws on religious studies training to show that, from the Ganges River to Jerusalem’s Western Wall, what makes the holy places of the world’s religions sacred seldom hinges on their natural purity. A presumption that Native American sacred places must be pristine to be authentically sacred is discriminatory, rooted in romanticized stereotypes of Native religions as nature piety rather than complex systems of obligation and relationship to sacred places. If the profanation principle seldom manifests as an explicit legal reason for an outcome, the Article demonstrates how consistently it plays out in cases under religious liberty, historic preservation, and environmental law. The Article suggests moving beyond the profanation principle, likening desecrated sacred places to sick relatives in need of healing and intensifying Native obligations to defend the sacred.

More Jaune Smith . . .

Federal Court Dismisses Remaining Claims in Winnemem Effort to Protect Coonrod Flats

Here are the materials in Winnemem Wintu Tribe v. Dept. of Interior (E.D. Cal.), also known as Franco v. USFS:

150 Supplemental Brief

155 Tribe Brief on Remedies

156 US Brief on Remedies

160 DCT Order on Reconsideration

Prior post here.

Federal Court Issues Protective Order re: Sacred Sites in Pueblo of Jemez Land Claim against US

Here are the materials in Pueblo of Jemez v. United States (D.N.M.):

105 Pueblo Motion for Protective Order

108 US Response and Cross Motion

110 Pueblo Reply

113 US Reply

114 DCT Order

This case is on remand from the Tenth Circuit, which allowed the Pueblo’s aboriginal title claims to proceed.

9th Cir. Cites Standing in Dismissal for La Cuna De Aztlan Sacred Sites Protection Circle Advisory Committee v. DOI

Doc. 47 – Memorandum


Plaintiffs have failed to establish standing to pursue a claim under Sections 1702 and 1705 of the EPAct, 42 U.S.C. §§ 16512, 16516. To demonstrate individual standing, a plaintiff must “have suffered or be imminently threatened with a concrete and particularized ‘injury in fact’ that is fairly traceable to the challenged action of the defendant and likely to be redressed by a favorable judicial decision.” Lexmark Int’l, Inc. v. Static Control Components, Inc., 134 S.Ct. 1377, 1386 (2014) (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)).  Even if we assume Plaintiffs adequately pled injury-in-fact and redressability, they have not sufficiently alleged causation. Plaintiffs make a conclusory allegation that the Genesis Solar Energy Project (“Project”) would not have gone forward without the federal loan guarantee, but they allege no supporting facts. Plaintiffs have failed to demonstrate that their alleged injury—suffering harm to environmental and cultural resources at the Project site—is “fairly traceable” to the Federal Defendants’ approval of the loan guarantee for the Project.

Ninth Circuit Rejects RFRA Challenge to Solar Project Near Indian Sacred Sites

Here is the unpublished opinion in La Cuna De Aztlan Sacred Sites Protection Circle Advisory Committee v. Dept. of Interior.

An excerpt:

We conclude that the record, which includes declarations submitted by the Plaintiffs that provide little more than conclusory statements and which have not shown where the alleged sacred sites are located at the Ivanpah Project site, is insufficient to support Plaintiffs’ claim that the loss of access to the limited area taken by the Ivanpah Project imposes a substantial burden. Viewing the evidence in the light most favorable to the Plaintiffs, the Plaintiffs have not shown that they are either “forced to choose between following the tenets of their religion and receiving a governmental benefit,” or “coerced to act contrary to their religious beliefs by the threat of civil or criminal sanctions” as this court requires to establish a substantial burden under RFRA. 

Briefs and lower court materials are here.

Ninth Circuit Briefs in La Cuna De Aztlan Sacred Sites Protection Circle Advisory Committee v. Dept. of Interior


La Cuna de Aztlan Opening Brief

Interior Answer Brief

La Cuna de Aztlan Reply Brief

Oral argument audio here. Video here.

Lower court materials here.

The Second Time Around: Looking Ahead to President Obama’s Second Term

Two weeks ago, we took a look back at some of the significant federal Indian policy developments during President Obama’s first term.  President Obama’s historic inauguration last week marked the beginning of his second term, which will bring a new set of challenges and opportunities for the Administration’s Indian policy agenda. 

The ongoing stalemate in Congress regarding the federal budget, a Republican House of Representatives, and the fact that the 2016 Presidential campaign will kick off immediately after the 2014 mid-term elections, will make it difficult to push significant Indian policy reforms through Congress.  Nevertheless, Indian country leaders will continue to press for reforms in a number of important areas. 

Look for the following issues to receive attention in the next four years: 

  • Violence Against Women Act (VAWA): Congress failed to reauthorize VAWA at the conclusion of the last term.  In light of recent elections, there is growing pressure on Congress (especially the Republican Party) to pass this reauthorization.  The question is whether a final bill will include provisions designed to enhance protections for Indian women (it can’t be repeated often enough that 1 in 3 American Indian women will be raped in their lifetimes) by restoring tribal criminal jurisdiction over domestic violence on Indian lands.  The Obama Administration has worked to ensure that Indian Country language is included in this legislation.
  • Carcieri Fix: As with VAWA, Congress has failed to enact legislation to address the 2009 Carcieri decision.  The politics of a Carcieri Fix are more complex than VAWA reauthorization.  President Obama expressed support for a Carcieri fix as recently as December, and tribal advocates continue to press for this legislation.
  • Climate Change, Environmental Protection, and Sacred Sites:  In his second inaugural address, President Obama stated, “We will respond to the threat of climate change, knowing that the failure to do so would betray our children and future generations.”  Tribal communities, especially those located in Alaska and on the coasts, are at the forefront of feeling the impact of climate change.  The Administration has pledged to address the issue, and it must include tribes in that effort. 

The Department of the Interior has been criticized by tribal leaders for not taking adequate steps to protect sacred sites in its push to permit renewable energy projects on public lands during the first term. But, at the 2012 White House Tribal Nations Conference, the Administration announced an interagency Memorandum of Understanding intended to help agencies – including the Department of the Interior – work with tribes to protect sacred sites.  The U.S. Department of Agriculture prepared a report to Secretary Vilsack on tribal sacred sites in December 2012.  

The #IdleNoMore movement in the United States is coalescing around environmental and sacred sites issues, and will put significant pressure on the Administration to respond to Indian Country on these issues.

  • Energy Development:  The Department of the Interior’s new leasing regulations will make it easier for developers to establish renewable energy projects on tribal lands, but federal tax policies still make it difficult for tribes to partner with those developers (beyond simply serving as a landlord, and receiving rent).  Addressing these tax inequities, and revising the Department of the Interior’s Right of Way regulations, are the next steps in unlocking Indian Country’s renewable energy potential.

With respect to conventional energy, the oil & gas boom in places like the Fort Berthold Reservation and the U&O Reservation have posed significant challenges on the BIA to keep pace with development.  Shrinking budgets, due to the stalemate in Congress, will make it even more difficult for the BIA to work with tribes to ensure that they can capitalize on their energy resources.

  • Federal Recognition:  In 2012, the Department of the Interior presented testimony to the Senate Committee on Indian Affairs and suggested that some groundwork had been laid to address problems in the federal recognition process (Disclosure: I served as the witness for the Department of the Interior in that hearing).  The rulemaking process is long and arduous, and it takes several years to publish rules – even where there is a consensus in support of that effort.  The recognition process has strayed far from its roots in international law to a faux “scientific” review.  DOI will be under pressure to complete this reform before the conclusion of President Obama’s second term. 
  • Gaming: The Department of the Interior made significant progress in lifting the effective moratorium on reviewing tribal gaming applications, rescinding the infamous “Commutability Memo” in the process.  During President Obama’s first term, DOI set out a process whereby it would complete a review of applications based upon its own regulations.  DOI also issued three “Two-Part” Determinations, and articulated the factors that would be used to issue those decisions (with particular focus given to local support and tribal historical connections to proposed gaming sites).  The Department will be under pressure, from tribes, local governments, states, and Congress, to consistently apply these standards and issue decisions in a timely manner.
  • Playing Defense:  Finally, the Obama Administration will likely be put in the position of defending (in courts of law and public opinion) its advances in Indian policy.  Presently, there are ongoing lawsuits challenging the way in which the Administration has interpreted the Indian Reorganization Act in light of the Carcieri decision.  We may also see a pushback against DOI’s efforts to acquire land in trust on behalf of tribes.  The tax provisions of the BIA’s new leasing regulations, which clarify the federal government’s interest in promoting economic development on Indian lands, may also serve as a flashpoint.

There are a number of other issues that we can expect to arise during the next four years as well, including the selection of a new Secretary of the Interior to replace Ken Salazar, appointing an Indian judge to the federal bench, protecting tribes from the PACT Act, implementing the Cobell settlement, and putting meat on the bones of the President’s decision to endorse the United Nations Declaration on the Rights of Indigenous People. 

There is also a likelihood that other events will transpire that could affect Indian Country’s and the President’s agenda (such as a Supreme Court decision in its upcoming ICWA case or other unforeseen events).  No matter what, the next four years will present enough policy and legal issues to keep Indian Country leaders and advocates burning the midnight oil.

Suit Challenging Chevron Solar Energy Project Affecting Sacred Sites Dismissed

Here are the materials in La Cuna De Aztlan Sacred Sites Protection Circle Advisory Committee v. U.S. Dept. of the Interior (C.D. Cal.):

DCT Order Dismissing La Cuna Complaint


Chevron Motion to Dismiss

Plaintiffs Opposition

Our previous post in this case is here.