Navajo Nation v. United States Forest Service

Student Note on the Arizona Snowbowl Case

Matthew L.M. Fletcher

Here is “Making Snow in the Desert: Defining a Substantial Burden under RFRA,” published in the Ecology Law Quarterly. An excerpt:

Judge Fletcher’s opinion in Navajo Nation reflected a determined effort to
reconcile the statutory provisions of RFRA with the Supreme Court’s
ethnocentric decision in Lyng. Unfortunately, as the en banc panel concluded,
RFRA was not intended to remedy the disparate treatment of sacred site claims
in free exercise doctrine and thus, it does not provide any more protection for
these claims than the Free Exercise Clause. Both of the Ninth Circuit’s
decisions, however, may ultimately lead to a more equitable framework for
analyzing free exercise challenges.

Judge Fletcher’s opinion in Navajo Nation reflected a determined effort to reconcile the statutory provisions of RFRA with the Supreme Court’s ethnocentric decision in Lyng. Unfortunately, as the en banc panel concluded, RFRA was not intended to remedy the disparate treatment of sacred site claims in free exercise doctrine and thus, it does not provide any more protection for these claims than the Free Exercise Clause. Both of the Ninth Circuit’s decisions, however, may ultimately lead to a more equitable framework for analyzing free exercise challenges.

Review of OT 2008: Indian Law Cases in the Supreme Court

Matthew L.M. Fletcher3 Comments

It’s time for a review of what the Supreme Court did in Indian law this Term, since the Term will end in a few weeks.

Consistent with the last 15 years or so (maybe 20), the Court was very hostile to tribal interests. The Roberts Court’s view of Indian law has changed slightly from the Rehnquist Court; frankly, for tribal interests, to the worse. All of the Indian law cases decided by the Court this Term could be construed as “error correction,” cases in which the Court (usually unanimously) believed the lower court made an egregious error. This appears to be a trend in the recent years, in which the Roberts Court will only grant certiorari in cases to correct these egregious errors. The Court does not see Indian law as a dynamic area of law — Indian law cases are very easy for most of the Justices — nor are Indian law cases vehicles for examining important issues of constitutional law beyond federal Indian law.

For the Roberts Court, Indian law cases are easy for a couple reasons. First, state government interests always trump tribal interests, and every case in which tribes defeat states strongly attracts the attention of the Court. The reverse simply is not true. It is my sense that the Roberts Court is happy to rest on the fact that state sovereignty is strongly protected by the text of the Constitution, and tribal sovereignty is not. Second, the long, complicated, and important history of federal Indian law and policy is utterly unimportant to the Roberts Court. Longstanding practice, legislative history, and simple Indian affairs history does nothing to persuade a majority of the Court, with only Justice Stevens paying much attention to it.

The Court heard oral argument and issued opinions in two Indian law cases, and a third case involving Native Hawaiians.

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Arizona Snowbowl Cert Petition on Deck This Week

Matthew L.M. Fletcher1 Comment

Navajo Nation v. United States Forest Service is set for this week’s conference. From SCOTUSblog:

Docket: 08-846
Title: Navajo Nation, et al. v. United States Forest Service, et al.
Issue: Whether a governmental action cannot constitute a “substantial burden” under RFRA unless it forces individuals to choose between following the tenets of their religion and receiving a governmental benefit or coerces them by threatening civil or criminal sanctions to act contrary to their religious beliefs.

[Akin Gump and Howe and Russell represent the petitioners]

Results of Third Turtle Talk Poll — 67% See Supreme Court Denying Cert in the Snowbowl Case

Matthew L.M. Fletcher

Most voters do not see the Supreme Court granting cert in Navajo Nation v. USFS — 67 percent. About 26 percent think the Court will grant cert. Seven percent see a settlement before the Court reaches an outcome.

Third Turtle Talk Poll — Whether the Supreme Court Will Grant Cert in the San Francisco Peaks Case

Matthew L.M. Fletcher2 Comments

Will the Supreme Court grant cert in Navajo Nation v. United States Forest Service?

The new Solicitor General — Elena Kagan — has until May 8 to file an opposition to the Navajo Nation cert petition. From there, the petitioners can file a reply brief, and the case will head to the Conference, likely in June. Assuming the government opposes the petition, the Court historically is extremely likely to deny cert, especially in a non-criminal case. However, the petitioners have made a credible case that the Ninth Circuit’s en banc opinion — defining “substantial burden” under the Religious Freedom Restoration Act to be far more narrow than any other federal circuit — has created a viable circuit split.

What do you think?

Arizona Snowbowl Case — Will US Recommend Cert Grant, Too?

Matthew L.M. Fletcher

As Indianz reports, the Navajo Nation v. United States Forest Service cert petition is brewing. A bunch of amici have filed supporting the cert petition, which definitely gets the attention of the Supreme Court (or at least the cert pool).

There are times when the respondent to a cert petition agrees with the petitioner that the Court should grant cert and hear the case. It happened in Negonsott v. Samuels (link to cert pool memo) and it could happen again … maybe.

There isn’t a classic or clear circuit split, but the CA9 in the Snowbowl case has come up with the most restrictive way to interpret RFRA’s “substantial burden test,” and I bet the United States would like to see the CA9’s rule expanded nationwide. And since American Indian religious freedom rights don’t do very well in the SCT, the United States might think this is the right vehicle and take a gamble. I’m being pretty cynical, and it is pretty unlikely, but you never know.

Amar and Brownstein on the Navajo Nation v. USFS Case

Matthew L.M. Fletcher1 Comment

Wow! This may be the first time anyone on Findlaw has written anything substantive on Indian law. This might actually contribute to raising the profile of the case a bit for the SCT.

From Findlaw (via How Appealing and Con Law Prof Blog):

By VIKRAM DAVID AMAR AND ALAN BROWNSTEIN

The U.S. Supreme Court will decide in the coming weeks whether to take up an important and interesting case from the U.S Court of Appeals for the Ninth Circuit involving religious liberties and the seminal federal statute – the Religious Freedom Restoration Act (RFRA) – designed to safeguard them. In this column, we will discuss the issues the case raises; the reasons why the Ninth Circuit’s resolution of these issues, while understandable, might not do justice to the complex and competing interests involved; and the problems that both the Supreme Court and lower courts face when trying to implement this well-meaning but imperfectly-drafted Congressional statute.

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Navajo Nation v. US Forest Service Cert Petition

Matthew L.M. Fletcher1 Comment

from SCOTUSblog:

Yesterday, the Stanford clinic filed this cert. petition in Navajo Nation v. U.S. Forest Service, dealing with the circumstances in which governmental action may constitute a “substantial burden” under RFRA.  Jeff Fisher is counsel of record in the case; he was ably assisted by Stanford students Jaime Huling Delaye, Scott Noveck, David Schwartz, and David Muraskin.