WALL OVER KUMEYAAY

In the midst of the joy and sparkle of the holiday season, outgoing President Donald Trump’s cherished border wall continues to play the role of Grinch: in this case, by stealing religious freedom.

That’s one way to read the recent order by the U.S. Court of Appeals for the District of Columbia Circuit denying the request for an injunction by members of the Kumeyaay Nation who claim that a portion of the wall being built in the San Diego region will destroy land possessing “great cultural, religious and historic significance.”

The border wall, one of Trump’s most controversial initiatives, is being built under the authority of a Clinton-era statute allowing federal agencies to construct “barrier infrastructure along the southern border.” The law was designed to make legal challenges difficult, so the outcome in the Manzanita Band of the Kumeyaay Nation v. Wolf might be read as no more than a plausible interpretation of a badly drafted statute.

But we should look deeper. The challenged portion of the wall is being built through desert that the Kumeyaay have traditionally considered theirs. That’s because the border between Mexico and the U.S. divides what has traditionally been the tribal land. Until the Trump administration took office, the Kumeyaay had little trouble getting permission to cross the border regularly. If the wall is completed, the Kumeyaay Nation will be permanently cut in half.

The problem, however, isn’t just the separation of one part of the Kumeyaay people from another. According to the plaintiffs, the “ground-disturbing activities” stemming from the construction will uproot burial sites. This matters because the Kumeyaay hold that “a person’s soul cannot rest in the afterlife if the remains are disturbed, or if parts of the body of the deceased are separated after death.” There are religious ceremonies to “restore peace to the souls of the dead” whose remains are disinterred, but the wall will also make those rituals impossible.

Despite all of this unchallenged evidence, the trial court in October denied relief, and in an unpublished order late last month the D.C. Circuit agreed. The result is another in a long line of decisions holding that American Indians have no special rights to protect their religious practices against the forces of federal construction.

The failure to appreciate the deep ties between land and ritual for so many native people long predates Trump. Concern about such cases provided much of the impetus for the Religious Freedom Restoration Act back in 1993, which I joined many other First Amendment scholars in supporting. Quite apart from the statute’s scope (which the Supreme Court, alas, swiftly narrowed), the hope of proponents was that its very passage would change the attitude of judges and policymakers alike toward the protection of unfamiliar faiths.

Some courts missed the memo. As a result, America’s indigenous people continue to struggle in their efforts to preserve religious and cultural traditions against encroachment. Earlier this month, a California federal court dismissed a challenge to construction of a resort community that the plaintiffs claimed would harm the religious practices of several tribes by disturbing the condors that nested in the area. The judge conceded that the “presence of the condors on the lands ... allows members of these tribes to connect with their ancestors and to continue to engage in cultural ceremonies and traditions which often use the condor’s feathers.” Nevertheless, due to the arcana of federal administrative law, his hands were tied. Animals, he wrote, did not qualify for special protection as what the law calls “Traditional Cultural Property.”

Courts limit the rights of Native Americans to protect their religious practices.

Maybe as a matter of law he’s right. But the law has been slow to accept the notion of the natural world in its pristine form as itself a part of religious belief and practice.

In the common Westernstyle understanding of religion, your faith is portable. Even if you’re forcibly uprooted, both your beliefs and the rituals that reinforce them travel with you to wherever you end up. For those raised to that conception of how religion works, it can be difficult to take seriously the notion that belief and ritual alike might be tied to a patch of land in its pristine form. If one bit of desert is destroyed, the argument runs, they can just worship somewhere else.

Discerning judges can catch the nuance. Dissenting from the D.C. Circuit’s denial of an injunction in the border wall case, Judge Patricia Millett focused mainly on the possibility that the acting secretary of HHS had exceeded his authority. But she also touched on religious freedom, pointing out that the government did not dispute the contention “that the land on which the construction is occurring and the closely surrounding area is of great cultural, religious and historic significance to the tribes.”

Exactly. The contention was true; it just didn’t matter much to those who make policy.

Fixing this resistance to the notion of a non-portable religion will be no easy task, and I no longer imagine that we can accomplish it by coming up with the right statutory language. But accomplish it we must, if we’re going to give meaning to religious liberty by avoiding the unnecessary destruction of the beliefs of those who were here first.