Here is that brief:
The parties’ initial post-trial briefs are here:
Brings Plenty Post-Trial Brief
Our prior post is here.
News coverage (h/t A.E.).
Religious Land Use and Institutionalized Persons Act
Government Summary Judgment Motion Denied in Challenge to S. Dakota Prison Ban on Tobacco
Here is the opinion in Native American Council of Tribes v. Weber (D. S.D.):
Summary judgment is denied on plaintiffs’ RLUIPA claim because genuine issues of material fact exist on whether defendants’ October 2009 policy substantially burdens plaintiffs’ religious exercise. Summary judgment is also denied on plaintiffs’ First and Fourteenth Amendment claims because defendants offer no argument as to why summary judgment is appropriate on those claims. Summary judgment is granted on the AIRFA claim because AIRFA does not create an independent cause of action. Summary judgment is also granted on plaintiffs’ international law claims because the customary law claim is vague, the genocide claim lacks a factual basis, and the United Nations Charter claim does not create an individual cause of action.
Supreme Court Holds States are Immune from Money Damages under RLUIPA
This is a big deal for American Indians asserting religious freedom claims against state governments.
Here is today’s opinion in Sossamon v. Texas, authored by Justice Thomas.
From the Court’s syllabus:
After this Court held that the Religious Freedom Restoration Act of 1993 was unconstitutional as applied to state and local governments because it exceeded Congress’ power under §5 of the Fourteenth Amendment, see City of Boerne v. Flores, 521 U. S. 507, Congress passed the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) pursuant to its Spending Clause and Commerce Clause authority. RLUIPA targets two areas of state and local action: land–use regulation, RLUIPA §2, 42 U. S. C. §2000cc, and restrictions on the religious exercise of institutionalized persons, RLUIPA §3, §2000cc–1. It also provides an express private cause of action for “appropriate relief against a government,” §2000cc–2(a), including, inter alia, States, their instrumentalities and officers, and persons acting under color of state law, §2000cc–5(4)(A).
Petitioner Sossamon, a Texas prison inmate, sued respondents, the State and prison officials, seeking injunctive and monetary relief under RLUIPA for prison policies that prevented inmates from attending religious services while on cell restriction for disciplinary infractions and that barred use of the prison chapel for religious worship. Granting respondents summary judgment, the District Court held that sovereign immunity barred Sossamon’s claims for monetary relief. The Fifth Circuit affirmed, holding that the statutory phrase “appropriate relief against a government” did not unambiguously notify Texas that its acceptance of federal funds was conditioned on a waiver of sovereign immunity to claims for monetary relief.
Held: States, in accepting federal funding, do not consent to waive their sovereign immunity to private suits for money damages under RLUIPA.
Supreme Court Update: Iron Thunderhorse v. Pierce CVSG
Today’s order list is here.
The Supreme Court asked for the views of the Solicitor General in Iron Thunderhorse v. Pierce, a Religious Land Use and Institutionalized Persons Act case.
In nice news for Indian Country, the Supreme Court denied cert. in Gould v. Cayuga and Hogan v. Kaltag Tribal Council. Both cases had appeared as petitions to watch, and the Supreme Court had previously CVSG’d the Kaltag (the OSG recommended denial of the petition).
Petitions denied included the challenge to the tobacco Master Settlement Agreement (Maybee v. Idaho), and Schagticoke’s challenge to the denial of its federal recognition (Schaghticoke v. Salazar), Fort Peck v. HUD, Hoffman v. Sandia, and Metlakatla v. Sebelius.
Garrison v. Mich. Dept. of Corrections — Prisoner Freedom of Religion Claim
Well, not exactly. The petitioner is a prisoner, a practioner of something called the “Native American Traditional Ways religion,” but the Sixth Circuit’s opinion is mostly about whether or not the petitioner’s claim should be dismissed for fraud.
An excerpt:
Michael Garrison, Eric Boylan, and Robert Walker appeal from an order dismissing their civil rights complaint. Garrison and four other Michigan prisoners filed a joint pro se action in district court alleging that prison officials had placed unnecessary restrictions on the prisoners’ religious practice in violation of the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc-1-cc-5. The prisoners requested, and were denied, appointed counsel. The district court later discovered that Garrison was filing papers that had been previously signed in blank by his co-plaintiffs. The co-plaintiffs left the signed, blank papers for Garrison to use in conducting the litigation. The district court regarded the use of papers signed in blank as fraud. The court dismissed the action without prejudice and applied various sanctions. Because counsel will only be appointed in a civil case in exceptional circumstances, the district court acted within its discretion in denying appointment of counsel. The district court also acted within its discretion when it dismissed the case without prejudice due to the improper nature of some of the filings. However, we vacate the dismissal order to the extent that it applies further sanctions because the record does not sufficiently indicate that Garrison and his co-plaintiffs acted in bad faith.
Commentary on Snowbowl Case
From Truthout:
Ninth Circuit rules effluent does not defile sacred space. Forest Service argued skiing on treated sewage “a compelling government interest.”
The San Francisco Peaks of Northern Arizona “are sacred to at least 13 formally recognized Indian tribes … and this religious significance is of centuries duration.”(1) In February 2005, the US Forest Service issued a Final Environmental Impact Statement and Record of Decision approving a proposal to make artificial snow using treated sewage effluent at the Snowbowl Resort located on Humphrey’s Peak, the highest and – to the tribes – most holy of the San Francisco Peaks. That decision was appealed by the Navajo Nation, the Hopi Tribe, the Havasupai Tribe, the Hualapai Tribe, the Yavapai-Apache Nation and the White Mountain Apache Nation. The Circuit Court ruled for the Forest Service. In February 2007, a three-judge panel of the Ninth Circuit Court unanimously overturned the lower court’s decision. On Friday, August 8, 2008, the en banc majority of the Ninth Circuit Court ruled that “using treated sewage effluent to make artificial snow on the most sacred mountain of southwestern Indian tribes does not violate the Religious Freedom Restoration Act (‘RFRA’). It also holds that a supposed pleading mistake prevents the tribes from arguing under the National Environmental Act (‘NEPA’) that the Forest Service failed to consider the likelihood that children and others would ingest snow made from the effluent.”(2)
On August 18, Leslie Thatcher, of Truthout, spoke with the Navajo Nation’s lead attorney in the case, Howard Shanker, who is also running in the Democratic primary for Arizona Congressional District One, the seat currently held by retiring Representative Rick Renzi (R-Arizona), presently under indictment for extortion, wire fraud, money laundering, and other charges related to an Arizona land deal.
Leslie Thatcher, for Truthout: Howard, what do you consider the most important issues in the Snowbowl case to be?
The San Francisco Peaks are federal land and the government has documented for years that the Peaks – especially Humphreys where Snowbowl is located – are sacred to local tribes. Nonetheless, the Feds issued a special use permit to operate a ski resort there that was unsuccessfully challenged in the 1970’s. Most recently, the Forest Service ruled that the resort could pipe up to 1.5 million gallons of treated sewage effluent to the resort for snowmaking in winters when natural snowfall is inadequate. The tribes have appealed that ruling.
The central issue that’s going on and that’s really important is that Native tribes have no First Amendment rights when it comes to government land-use decisions. And the federal government holds thousands of acres of land across the country that the tribes hold sacred. Up until we used the Religious Freedom Restoration Act [RFRA] successfully, there was no way for the tribes to challenge federal use of sacred lands. Now, they have to show there is a compelling government interest and that they are using the least restrictive means of furthering that compelling government interest when government action substantially burdens the exercise of religion.
The current ruling is that there is no substantial burden on the exercise of religion. The judges have said there is no objective evidence of impact on religious belief and practice.
Short of producing God in the courtroom, there’s no way to produce “objective” evidence. A Navajo elder testified that putting effluent on the mountain would be like raping his mother. Other testimonies – the sincerity of which were never challenged – described the disruptions to the spiritual world and contamination of the ritual purity of materials essential to Native ceremonies that spraying the effluent would result in.
The en banc court adopted a very restrictive reading of “Sherbet and Yoder” that does not seem to speak to the statute. In any event, spraying the Peaks can certainly be interpreted as a form of punishment or coercion.
The tribes appealed the Forest Service decision under the Religious Freedom Restoration Act (RFRA) rather than the First Amendment to the US Constitution. Can you explain how the RFRA differs from the First Amendment and why Congress passed the act?
In “Smith,” the Supreme Court said laws of general application can’t constitute a general burden under the Constitution. So then, Congress passed RFRA to say that even though a law may be of general applicability, if it results in a substantial burden to the exercise of religion, you have to do this balancing of interests. Then in 2003, Congress passed the Religious Land Use and Institutionalized Persons Act [RLUIPA] amending and broadening RFRA’s definition of “exercise of religion.”
The Ninth Circuit Court dissent, written by Judge Fletcher, joined by Judges Pregerson and Fisher, notes that “Under our prior case law, a ‘substantial burden’ on the ‘exercise of religion’ exists where government action prevents an individual ‘from engaging in [religious] conduct or having a religious experience’ and the interference is ‘more than an inconvenience.'” Can you explain how spraying up to 1.5 million gallons of effluent a day on the sacred mountains burdens the various plaintiff tribes’ exercise of religion?
For the Hopi, the Mountain is where the Katsina live; that’s their only sacred mountain; the Katsina are responsible for making the moisture that is essential to Hopi life. It was on Mt. Humphreys that the Hopi had their revelation and they return there for pilgrimages.
For the Navajo, it’s one of four sacred mountains, but it is essential to all blessing way ceremonies which depend on ritually pure materials gathered from the mountain.
The tribes see the Peaks as a single living entity; this is a living being. You can’t poison just one part of it without poisoning the whole.
One man testified that current ski runs are like a scar on the body, something the body can live with, but that putting effluent on the Peaks is like a toxic injection.
For the Apache, the mountain is where souls go after death; the transfer station of souls to Heaven and the spraying will interfere with that operation.
For both the Hualapai and the Navajo, the mountain is their Garden of Eden, where life started.
The government has never questioned the specific special holiness of these mountains to the Native tribes. In fact, in the very beginning, the National Historic Preservation Act uses the Peaks as an example of a sacred space.
Thunderhorse v. Pierce — Prisoner Religious Freedom Case
Hey, a successful challenge in a prisoner religious freedom case! That doesn’t happen very often.
Turtle Talk 