Notre Dame Religious Liberty Clinic files amicus brief in favor of religious liberty protections for the Yanaguana, an Indigenous sacred site

Notre Dame Law School’s Religious Liberty Clinic filed an amicus brief in the Fifth Circuit Court of Appeals today, urging the court to protect a sacred site in San Antonio, Texas, that is of great spiritual significance to many Indigenous tribes. The brief was filed in support of Gary Perez and Matilde Torres, two practicing members of the Lipan-Apache Native American church, in the case Perez v. City of San Antonio.

For centuries, generations of the Lipan-Apache people have gathered for prayer and worship at a particular bend in the Yanaguana — known as the San Antonio River in English — which mirrors the constellation Eridanus in the skies above. It is an area central to the Yanaguana creation story, which teaches that life began in the area when droplets of water fell to the earth from the feathers of a cormorant. Given its spiritual importance to the Lipan-Apache people, it is the only place in the world where certain religious ceremonies involving the river, the cormorants, and the stars above may be performed.

The City of San Antonio is now preparing a project to restore concrete retaining walls in the area, which would destroy the spiritual ecology of the site by destroying trees and driving away cormorants. As a part of its preparations, the City has already barred Lipan-Apache members from even accessing the site. If the project comes to pass, the Lipan-Apache people risk losing their ability to perform religious ceremonies that require the sacred convergence of the riverbend, the trees, and the birds that live there.

 

The Notre Dame Religious Liberty Clinic filed a brief to prevent this unnecessary destruction. The brief argues against a narrow interpretation of a Texas religious liberty law, which would impose a discriminatory double-standard that guards against lesser restrictions on many mainstream religious practices while failing to prevent the total destruction of spiritual practices by Native peoples like the Lipan-Apache.

The Clinic’s brief also calls attention to the United States’ failure to protect Native Americans’ sacred sites through the government’s continued shameful pattern of callousness and coercion regarding Indigenous sacred sites. It argues that the City’s actions would perpetuate this shameful history of governmental disregard for Indigenous sacred sites that deserve protection.

Stephanie Barclay, faculty director of the Notre Dame Law School Religious Liberty Initiative, said, “In the past, government officials have destroyed Native American sacred sites, only to later acknowledge that such destruction was unnecessary. We hope the court will prevent the City from causing such needless suffering for the Lipan-Apache people in this case.”

In Perez, the Fifth Circuit may decide whether the ramifications of the City’s project would impose a “substantial burden” on the Lipan-Apache’s religious exercise, as prohibited under the Texas Religious Freedom Restoration Act (TRFRA). The City argues that, even though religious practices of the Lipan-Apache may be forever destroyed, this is not a “substantial burden” on their religious freedom, because the government has not threatened to punish them for their beliefs. The Clinic’s brief argues that the law does not support the City’s narrow interpretation of substantial burden.

Religious Liberty Clinic Director John Meiser stated, “The City’s argument defies reason. The Supreme Court has held that even fining a person $5 because of her beliefs imposes a substantial burden on her religious freedom. Surely eliminating the Lipan-Apache’s ability to practice their religion does as well.”

The Clinic’s brief argues that Texas law recognizes the straightforward proposition that the government substantially burdens religious exercise when it prohibits, desecrates, or destroys a religious practice. Under TRFRA, if the government makes it so that a person “cannot perform the ceremonies dictated by his religion,” then that “is a burden, and it is substantial.”

The amicus brief was filed on behalf of the International Council of Thirteen Indigenous Grandmothers and Carol Logan.

The International Council of Thirteen Indigenous Grandmothers is a global alliance of Indigenous elders who come together in prayer, education, and healing for Mother Earth. The members are united by their shared mission to protect Indigenous ways of life and to preserve the lands where Indigenous peoples live and upon which their cultures depend.

Carol Logan is an elder from the Confederated Tribes of Grande Ronde and a lineal descendant of the Clackamas People. She has advocated to prevent the federal government’s seizure and destruction of other sacred lands in Oregon — including a sacred site that the government seized and destroyed to expand a highway, only to later admit that destruction was totally unnecessary. Logan seeks to prevent similar unnecessary destruction from happening along the Yanaguana.

"Nobody has the right to tell Indigenous people why, where, how, or what the landscape needs to look like at our sacred sites on our own homelands. We don't tell people what to do within their churches, and the government should respect our Mother Earth and our ways of life, as well," said Logan.

William Clark, Olivia Lyons, Christopher Ostertag, and Tess Skehan, students in the Notre Dame Law School Religious Liberty Clinic, contributed to the brief alongside Barclay and Meiser.

"This case should make clear that Indigenous religions, which frequently have land-based worship practices, are entitled to the same protections enjoyed by 'mainstream' Western religions," said Clark, a third-year law student.

Perez v. City of San Antonio is the second case taken up by the Religious Liberty Clinic related to defending an Indigenous sacred site in Arizona being threatened with destruction. The Clinic has also filed several amicus briefs in the Ninth Circuit case Apache Stronghold vs. United States of America in favor of religious liberty protections for Oak Flat, a sacred site in Arizona that is being threatened by a massive copper mining operation.

Read more about the range of cases that the Clinic has taken up on our website.

About the Notre Dame Law School Religious Liberty Clinic

The Notre Dame Law School Religious Liberty Clinic represents individuals and organizations from all faith traditions to promote not only the freedom for people to hold religious beliefs but also their fundamental right to express those beliefs and to live according to them. Students in the Clinic work under the guidance of Notre Dame Law School faculty and staff to provide advice, counsel, and advocacy on a broad array of matters related to religious freedom in the United States and abroad. The Religious Liberty Clinic has participated in proceedings at all levels of federal and state courts, in administrative agencies, and before foreign courts and other governmental bodies around the world.

Learn more about the Religious Liberty Clinic at religiousliberty.nd.edu/clinic/.

Originally published by Arienne Calingo at religiousliberty.nd.edu on November 17, 2023.