Amicus brief filed by the National Council of Churches of Christ in USA, the American Baptist Churches USA, the United Presbyterian Church in the USA, the American Civil Liberties Union and the Center for Constitutional Rights in support of the Cherokee groups suing to prevent competition of the Tellico Project

Ennis, Bruce J.

Stearns, Nancy

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Boston College Law SchoolDigital Commons @ Boston College Law SchoolSnail Darter Documents The Snail Darter and the Dam1-1-1979Sequoyah v. TVA, 6th Circuit, Docket No.79-1633: Motion for Leave to Appear and to FileMemorandum as Amici CuriaeBruce J. EnnisAmerican Civil Liberties UnionNancy StearnsCenter for Constitutional RightsFollow this and additional works at: http://lawdigitalcommons.bc.edu/darter_materialsPart of the Environmental Law CommonsThis Archival Material is brought to you for free and open access by the The Snail Darter and the Dam at Digital Commons @ Boston College LawSchool. It has been accepted for inclusion in Snail Darter Documents by an authorized administrator of Digital Commons @ Boston College LawSchool. For more information, please contact nick.szydlowski@bc.edu.Digital Commons CitationEnnis, Bruce J. and Stearns, Nancy, "Sequoyah v. TVA, 6th Circuit, Docket No. 79-1633: Motion for Leave to Appear and to FileMemorandum as Amici Curiae" (1979). Snail Darter Documents. Paper 74.http://lawdigitalcommons.bc.edu/darter_materials/74IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT NO. 79-1633 AMMONETA SEQUOYAH, RICHARD CROWE, GILLIAM JACKSON, Individually and representing other Cherokee Indians similarly situated; the EASTERN BAND OF CHEROKEE INDIANS; and the UNITED KETOOAH BAND OF CHEROKEE INDIANS, Appellants, v. TENNESSE VALLEY AUTHORITY, Appellees. ) ) ) ) ) ) ) ' ) ) ) ) ) -- .. ) ) ) _____________________________________) ,, MOTION FOR LEAVE TO APPEAR AND T? ;.~JLE MEMORANDUM AS AJI1ICI CURIAE The National Council of Churches of Christ in U.S.A., American Baptist Churches U.S .A., United Presbyterian Church in the U.S .A., American Civil Liberties Union and Center for Constitutional Rights move for leave to file the attached memorandum and to participate as amici curiae. The National Council qf Churches of Christ in the U.S.A, is a cooperative agency of thiry-one (3~) Protestant and Eastern Orthodox national religious denominations, with an agg(regate membership . . . / j' of more than forty (40) million Americans. The National Council of \\ Churches has involved itself in a wide range of religious freedom cases including Wisconsin v. Yoder,· _406 U.S. 205 (1972), Anderson v. Laird, 316 F.Su'pp. 1081 (D.D.C. 1970), Native American religious cases and ----and other cases where constitutional religious freedoms have been threatened. The American Baptist·Churches in the U.S.A. is composed of four (4) principal national agencies and thirty-seven (37) regional, city and state organizations in the United States, who represent more than 6,000 congregations on matters pertaining to their rela-' tionship with the government of the United States of America, its agencies and departments, as they affect our churches, administrative units and integrated and affiliate agencies engaged in Baptist Mission activities. Among Baptists, religious liberties is a fundamental and sacred principle •. Religious liberty is also a fundamental legal right protected by the First and Fourfe~nth Amendments to the Con-stitution of the United States. It is the opinion of' the American Baptist Church in the U.S.A. that the principle of religious liberty is jeopardized by the decision of the U.S. District Court for the ;;,:;'·: Eastern District of Tennessee in Se.quoyah v. TVA which is on appeal in this case. The United Presbyterian Church in the U.S.A. {UPC) is composed. of 8,500 congregations repre~enting more than 2.6 million persons in all fifty (50) States. The headquarters for the United Pre~byterian Church in the U.S.A. is at 475 Riverside Drive, New York, Ne~ York, 10027. It is the church~ide ~olicy of th~ UPC to advocate 'issues of concern within the Native American corillnunity speCifically in the area \ ~ of human and civil rights. For these reasons, the UPC i.is particularly concerned with the unique rel~gious freedom issues presented in this lit~gation. The ACLU is a non-profit organization with over 200,000 members dedicated to the defense and advancement of the Bill of Rights and -2-'--- .- ·-:---:.., 1-·--· other inherent rights. For more than 50 years, the ACLU has espoused these causes, in large part through the development and presentation of civil liberties positions in litigation. The ACLU has, in parti-cular, conducted extensive study, research, analysis, and litigation in the areas of the Establishment Clause, the Free Exercise Clause, and the Freedom of Speech and Assembly provisions of the First Amend-ment of the United States Constitution. In regard to the questions presented in the Sequoyah ·,v.· TVA litigation I the ACLU has bot~ analyzed and litigated the precise issue of religious activities and federal li:mds. See, for example, Alleri v. Morton, 495 F.2d 65 (D.C. Cir. · ,,. 1973). The Center for Constitutional Rights (CCR) is a non-profit tax-exempt legal and educational corporation dedicated to advancing and protecting the rights and liberties guaranteed by the Bill of Rights to the United States Constitution. During its fou~teen (14) year history, CCR has litigated on behalf of Native Americans who were deprived of the use and possession of their traditional lands. The CCR has also actively litigated on behalf of persons Who turn to the courts to protect their First Amendment rights to freely exercise their religious beliefs. For the~e ~easons, CCR is particularly concerned about the se~ious constitutional issues raised in this action. The accompanyi!lg memorandum of ·amici· curiae contributes a valid \\ dimension to the ·pending matter before this Court. The' ·issue is of wide-spread and urgen·t concer·n to all o;rganiza:tions and individuq.,ls who are interested in the free e~e~ci~e ~f religion. The unique vantage point of ·atn:i·ci affords a helpful perspective ·to the funda-mental constitu~ional issue~ pre~ented to this Court.· ' -3-.· For the foregoing reasons, the moving parties urge this Court to grant them leave to file the accompanying memorandum and to parti-cipate as amici curiae. -. ~~c.,_~~. ~N6J··~ (_.ssl-.i) Bruce J. Ennis AMERICAN CIVIL LIBERTIES UNION 22 East 40th Street New York, New York 10016 {212)125-1222 NrdcYf;t~d.s _5~00? "' ~ ~t+) CENTER FOR CONSTITUTIONAL RIGHTS .· 853 Bf"o·adway ,. .• New York, New York 10003 (212) 674-3303. Counsel for Amici .~ --"• -4-#. IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT NO. 79-1633 SEQUOYAH, et al., ) ) ) ) ) ) APPELLANTS, v. TVA,· APPELLEE. ) . ) ) ) AMICI CURIAE MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF APPELLANTS' BRIEF --------------~--------------> ,,. The Cherokee have presented an impartant substantive case of constitutional rights of religious practice. The con'stitutional rights r·aised by the Cherokees in this case, and their treatment in this Court, will set prec-edents for the free exercise .. or-·· religion far beyond the val-ley of the Little Tennessee River. The appellants Cherokee Indians have presented a sub-stantial case base~_upon the exercise of First Amendment re-ligious rights in the Valley. Several sites within the Tel-lico project area have sacred importance to the Cherokees, but most particularly the city-site, Echota. Over the years Cherokees have looked to Echota as the source of their re-··-. ligion, and, despite the .Jilhi te man's occupation of\: the Val-)j ley lands, individual Cherokees and their holy men have re-turned to Echota for religious pilgrimage~, the making of medicine and the renewal of sacred powers. (Affidavits of Ammoneta Sequoyah, Lloyd Sequoyah, Dr. Duane King, Dr. Al-bert Wahrha.ftig attached as Exhibits to Plaintiffs I-iemoran-,, : ' ,;::. __ dum In Supp~rt of Application for Temporary Restraining Order and/or Preliminary Injunction.) (See also, the 1762 map annexed to this memorandum, showing the valley's sites, all of which would be destroyed by the Tellico impoundment.} I The sacredness of several particular sites in this case, and their importance to the present active practice of the Cherokee religion, were admitted by TVA and assumed by the distr1ct court. Slip Op. at 5. The impoundment of the valley clearly would destroy . Echota, and a fortiorari eradicate-the free exercise or the Cherokee religion in the most~~acred site of the Chero-kee culture. Access to sacred sites has been specifically recognized by Congress as part of the "inherent right of freedom to believe; express, and exercise" traditional re-ligions •. P.L. 95-341 (1978). Yet the TVA is now proceeding toward imminent impoundment of this last unflooded stretch of river and its sacred features. On the merits, the district court's dismissal of the case is based upon an untenable First Amendment theory. The district court's opinion dismissing this action is based upon.the novel and disturbing theory that citizens' First Amendment free exercise rig:~ts depend upon their owning property interests in the land. The sum total of the judge's ,, )) holding dismissing these admitted constitutional rights is the statement that Since plaintiffs claim no ... legal property interests in the land in question ... a free exercise claim is not stated here. [Id. at 7, emphasis added.] -2-II This theory finds no support in First Amendment cases gen-erally. Cantwell v. Connecticut, 310 U.S. 296 {1940) and its progeny; A Quaker Action Group v. Hickle, 421 F.2d 1111 {D.C. Cir. 1969). It flies in the face of the specific intent of the Indian Religious Freedom Act of 1978, P.L. 95-341, which was designed in large part to permit Native Am-erican religious practices on federal lands. See, Hearings, Sen. R. No. 95-709, 95th Cong~, 2nd Sess., {1978). The dis-trict judge's opinion, moreover, fails even to.mention the ·"compelli~g state interest" ·test which requires. that any burdens on the Cherokees'. free ex§lr.cise of religion be justi-fied by a "compelling state interest in the regulation of a subject within the State's constitutional power to regu-late." NAACP v. Button, 371 U.S. 415, 438, {1963); Sherbert v • • ·.2'.·. Verner, 374 u.s. 398 {1963; \1i~consin v. Yoder, 406 u.s. 205 (1972). As to future considerations in Congress, where this balance has never been addressed, we note that the present economic merits of the Cherokees' position are also sub-stantial. When this case again comes to Congress, as it should and will if the courts exercise their function as ad-judicators of constitutional rights, the preservation of Cherokee re~igious sites will be balanced with th~je~onomic advantages already on the record favoring non-reservoir project area development. See, Comptroller General of the United States, TVA's Tellico Dam Project: Costs, Alterna-tive·s, and Benefits, EHD-77-58 {1977); Staff Report, En-\ dangered Species Committee,· Tellico Dam and Reservoir, U.S. -3-,, -- . . -. . - .- . - -. ---:-~:- t-· -. Department of Interior, Jan. 19, 1979. But the measured processes of our lawmaking system will not work unless the courts enforce the Constitution and laws as they exist. TVA v •. Hill, 437 U.S. 153, 194-195 (1978). Given the admitted constitutional rights and their imminent destruction, prompt judicial consideration is essential. It would be nothing short of an abdication of the legal probess if the appellants Cherokee Ihdians were not permitted to argue their substantial constitutional 6ase ,. ' . until it is too l~te. The substantiality of the case--and its precedential importance to ali ~ho look to the judicial process as the primary protector of the First Amendment · · rights of allAmericans--make it imperative that this case be heard on its merits. .. Conclusion Accordingly, amici curiae earnestly request the court to give this case a_meaningful hearing, at the earliest pos-sible time, and to support the First Amendment freedoms for which, in our system, the courts stand as primary defenders. Respectfully submitted, ~rr. u...c_ ""---- ~- z: r---l N i ~ F) Bruce J. Enn1s -- · American Civil Liberties Union 22 East 40th Street New York, New York 10016 (212)725-1222 COUNSEL FOR AMICI -4-j ~> <- "j S-\-, c-<-a-.--.1 ::> C -,~) Nancy Stearns ;; Center for Con~titutional Rights 853 Broadway .. New York, New York 10003 (212)674-3303 ,. A Drau~ht of the CHEROKEE CorNTRY, On-tlu TftA Jid< <'(tlz/liz·mty ji'•ar JlfNmt<r~Ti.J. e<>mm<m(:y m/1.-d 0~"'" tli<Hilf•: 7akn (y Hent:Y Timbe~lake, nlzm he ? ·JVtU ,;,, tfuzr Cmntry. .tn .Afaffh .IJti'<I . Lil.-mJt..rr tlu 1lamM o(tlu Principal orHead_men o(~<uli Tow.n.and ·wlwt-}\Tinni-er oj'Fylm j{j' fifcn tlity .ftm.l T<> 1far. J~fio.ILUJiifl. or tlu l _ . /' r f'l4 unddtlu 6'ownU'1'V(:Attako11.almfla. m~at J,r/aml. .. To.ri.·'J'"r.-. .. Jl,m m o tlt:r . . Jo'jUO .... Ttnn:Jfrr. Cbotr ... Chii/Jomg .. . . . 55 At!>luJial:ulla GM'<nl(>r. ,91 Oftwaro t;.mmmukr tiz (/J,~( 8<1 '~'illi11.uwa\•t G'tt1V?"JU1r. fli tt41..CI.tr I he. Cm-rr~tunl 'f'l~gattJ<''k<"o. . 175 .Kanagatnckco.A<~.t-G,,,.,."'"'· JlO Yacbtino Gmxm<>r. . A Seal• of Mile• \ - -- -- -----.---~ I - - -···--;- .... -- -·····- ·-----------:, t---:-·-CERTIFICATE OF SERVICE This is to certify that the undersigned attorney has this date served the attached Motion and Memorandum on behalf of amici curiae upon the attorney for the Appellee by deposition two copies in the United States Mail, first class, post~ge prepaid. rJ <>-='=' "-~ Sh c.-= ....., .,. · '=_s.s.l-\) Nancy .Stear s CENTER FOR CONSTITUTIONAL RIGHTS 853 Broadway New York, New York,. 10003 (212)674-3303 :;..:t·· ) I 

Sequoyah v. TVA, 6th Circuit, Docket No. 79-1633: Motion for Leave to Appear and to File Memorandum as Amici Curiae

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