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Brief of Amicus Curiae Lipan Apache Tribe of Texas in Support

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Brief of Amicus Curiae Lipan Apache Tribe of Texas in Support Case: 20-50908 Document: 00515781721 Page: 1 Date Filed: 03/15/2021 No. 20-50908 ________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _______________________ TAP PILAM COAHUILTECAN NATION; SAN ANTONIO MISSION CEMETERY ASSOCIATION; RAYMOND HERNANDEZ, Plaintiffs-Appellants, v. DOUGLASS W. MCDONALD, CEO OF THE ALAMO TRUST; GEORGE P. BUSH, COMMISSIONER OF THE GENERAL LAND OFFICE OF THE STATE OF TEXAS, Defendants-Appellees. ________________________ On Appeal from the United States District Court for the Western District of Texas Case No. 5:19-CV-1084 ________________________ BRIEF OF AMICUS CU R IAE LIPAN APACHE TRIBE OF TEXAS IN SUPPORT OF PLAINTIFFS-APPELLANTS ________________________ CHRISTOPHER PAGLIARELLA DINO L. LAVERGHETTA YALE LAW SCHOOL COUNSEL OF RECORD FREE EXERCISE CLINIC CHRISTOPHER D. JOYCE 1919 PENNSYLVANIA AVENUE, N.W. SIDLEY AUSTIN LLP SUITE 400 1501 K STREET, N.W. WASHINGTON, D.C. 20006 WASHINGTON, DC 20005 TELEPHONE: (203)-305-7528 TELEPHONE: (202) 736-8000 FACSIMILE: (202) 736-8901 MORGAN A. PINO SIDLEY AUSTIN LLP 787 SEVENTH AVENUE NEW YORK, NY 10019 TELEPHONE: (212) 839-5300 Counsel for Amicus Curiae Case: 20-50908 Document: 00515781721 Page: 2 Date Filed: 03/15/2021 CERTIFICATE OF INTERESTED PERSONS No. 20-50908 The undersigned counsel certifies that the following listed persons and entities as described in the fourth sentence of Rule 28.2.1 have an interest in the outcome of this case. These representations are made in order that the judges of this court may evaluate possible disqualification or recusal. Party Type Name Counsel for Party Amicus Curiae The Lipan Apache Dino L. LaVerghetta Tribe of Texas Attorney of Record for Amicus Curiae Christopher D. Joyce Morgan A. Pino Sidley Austin LLP Christopher Pagliarella Yale Law School Free Exercise Clinic Plaintiff- Tap Pilam Adrian Anthony Spears, II Appellant Coahuiltecan Art Martinez de Vara Nation Charles H. Sierra The Martinez de Vara Law Firm, PLLC Plaintiff- San Antonio Adrian Anthony Spears, II Appellant Mission Cemetery Art Martinez de Vara Association Charles H. Sierra The Martinez de Vara Law Firm, PLLC Plaintiff- Raymond Adrian Anthony Spears, II Appellant Hernandez Art Martinez de Vara Charles H. Sierra The Martinez de Vara Law Firm, PLLC Defendant- Alamo Trust, Inc. Manuel Mungia Appellee Matthew Edwin Pepping Blake W. Stribling Chasnoff Mungia Valkenaar Pepping & Stribling, P.L.L.C. S. Mark Murray Law Office of S. Mark Murray i Case: 20-50908 Document: 00515781721 Page: 3 Date Filed: 03/15/2021 Party Type Name Counsel for Party Defendant- Douglass W. Manuel Mungia Appellee McDonald, CEO of Matthew Edwin Pepping the Alamo Trust Blake W. Stribling Chasnoff Mungia Valkenaar Pepping & Stribling, P.L.L.C. S. Mark Murray Law Office of S. Mark Murray Defendant- George P. Bush, James Brandon Hughes Appellee Commissioner of Donato David Ramos, Jr. the General Land Law Offices of Donato D. Ramos, Office of the State P.L.L.C. of Texas Defendant- Texas General Land James Brandon Hughes Appellee Office Donato David Ramos, Jr. Law Offices of Donato D. Ramos, (Defendant below, P.L.L.C. served with Notice of Appeal) (Counsel for Defendant in district court proceeding) Defendant- Texas Historical David G. Gordon Appellee Commission Kimberly Fuchs Office of the Attorney General of Texas (Defendant below, served with Notice of (Counsel for Defendant in district court proceeding) Appeal) Defendant- City of San Antonio Patrick C. Bernal Appellee Clarissa M. Rodriguez (Defendant below, Denton Navarro Rocha Bernal & Zech served with Notice of Appeal) (Counsel for Defendant in district court proceeding) Respectfully submitted, /s/ Dino L. LaVerghetta Dino L. LaVerghetta Attorney of Record for Amicus Curiae, The Lipan Apache Tribe of Texas ii Case: 20-50908 Document: 00515781721 Page: 4 Date Filed: 03/15/2021 TABLE OF CONTENTS Certificate of Interested Persons ......................................................................................... i Table of Authorities ............................................................................................................ iv Interest of Amicus Curiae ................................................................................................... 1 Introduction and Summary of Argument .......................................................................... 3 Argument .............................................................................................................................. 7 I. The District Court Erroneously Applied Lyng and Should Have Instead Applied Smith, Lukumi, and Brooklyn. ................................................... 7 II. The Facts Are Sufficient to Maintain a Claim Under Smith, Lukumi, and Brooklyn. ...................................................................................................... 14 A. The Tap Pilam Have Alleged that the Appellees’ Regulations Are Not Neutral and Generally Applicable. ........................................ 14 B. The Tap Pilam Have Alleged that the Appellees’ Regulations Do Not Survive Strict Scrutiny............................................................. 18 Conclusion .......................................................................................................................... 21 Certificate of Service Certificate of Compliance iii Case: 20-50908 Document: 00515781721 Page: 5 Date Filed: 03/15/2021 TABLE OF AUTHORITIES Page(s) Cases Attakai v. United States, 746 F. Supp. 1395 (D. Ariz. 1990) .............................................................................. 12 Blackhawk v. Pennsylvania, 381 F.3d 202 (3d Cir. 2004) ......................................................................................... 17 Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993) .................................................................................................passim Cuthair v. Montezuma-Cortez, 7 F. Supp. 2d 1152 (D. Colo. 1998) .............................................................................. 7 Emp’t Div., Dep’t of Human Res. v. Smith, 494 U.S. 872 (1990) ................................................................................................ 13, 17 Haight v. Thompson, 763 F.3d 554 (6th Cir. 2014) ......................................................................................... 9 Holt v. Hobbs, 574 U.S. 352 (2015) ........................................................................................................ 9 Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439 (1988) ........................................................................................ 4, 5, 10, 11 Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n, 138 S. Ct. 1719 (2018) .................................................................................................. 18 McAllen Grace Brethren Church v. Salazar, 764 F.3d 465 (5th Cir. 2014) ........................................................................... 2, 8, 9, 13 McGirt v. Oklahoma, 140 S. Ct. 2452 (2020) .................................................................................................... 3 Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058 (9th Cir. 2008) ..................................................................................... 11 Patterson v. Def. POW/MIA Accounting Agency, 398 F. Supp. 3d 102 (W.D. Tex. 2019)....................................................................... 12 iv Case: 20-50908 Document: 00515781721 Page: 6 Date Filed: 03/15/2021 Ramah Navajo Sch. Bd., Inc. v. Sebelius, No. 07 CV 0289 MV, 2013 WL 12303945 (D.N.M. May 9, 2013) ............................ 3 Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63 (2020) ...................................................................................... 5, 13, 15, 16 Seminole Nation v. United States, 316 U.S. 286 (1942) ........................................................................................................ 4 United States v. Sec’y, Fla. Dep’t of Corr., 828 F.3d 1341 (11th Cir. 2016) ................................................................................... 20 Williams v. Annucci, 895 F.3d 180 (2d Cir. 2018) ......................................................................................... 20 Yellowbear v. Lampert, 741 F.3d 48 (10th Cir. 2014) ......................................................................................... 9 Legislative Material S.C.R. No. 61, 86th Leg., Reg. Sess. (Tex. 2019)............................................................... 1 Other Authorities Dawn at the Alamo, The Alamo, https://www.thealamo.org/remember/commemoration/dawn-at- the-alamo (last visited Mar. 11, 2021) ......................................................................... 16 Group, Private, & After-Hours Tours, The Alamo, http://awscf.thealamo.org/visit/tours/group/index.html (last visited Mar. 11, 2021) ............................................................................................................... 15 v Case: 20-50908 Document: 00515781721 Page: 7 Date Filed: 03/15/2021 INTEREST OF AMICUS CURIAE 1 Amicus, the Lipan Apache Tribe of Texas (the “Lipan Apache” or “Tribe”), is a state-recognized Native American tribe headquartered in Texas, with its traditional territory spanning the southwestern United States. The Tribe initially settled in the grassy plains of North Texas in the 1600s, but moved south following conflict in the early eighteenth century. In the 1800s, the Lipan Apache supported the Texans in their
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