Amicus Curiae Brief — Gary Perez, et al., Petitioners v. City of San Antonio, Texas

Supreme Court briefAug 31, 2026

Ask Donna

What actually matters in this document.

Text

No. 26-15

In the Supreme Court of the United

States

GARY PEREZ, ET AL.,

Petitioners,

CITY OF SAN ANTONIO, TEXAS

Respondent.

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the Fifth Circuit

BRIEF OF ASSOCIATION ON AMERICAN INDIAN

AFFAIRS AS AMICUS CURIAE

SUPPORTING PETITIONERS

RICHARD D. SALGADO

Counsel of Record

SETH M. YOUNG

JACOB I. HIBBARD

MCDERMOTT WILL & SCHULTE LLP

2801 N. Harwood Street

Suite 2600

Dallas, TX 75201

(214) 295-8000

richard.salgado@mcdermottlaw.com

smyoung@mcdermottlaw.com

jhibbard@mcdermottlaw.com

Counsel for Amicus Curiae

TABLE OF CONTENTS

Page(s)

TABLE OF AUTHORITIES ................................ iii

STATEMENT OF INTEREST............................... 1

SUMMARY OF THE ARGUMENT ...................... 2

ARGUMENT .......................................................... 3

I. Applying the Lower Court’s Reasoning to

Other Religious Practices Would Be Plainly

Unconstitutional. ........................................... 3

The lower court told Petitioners that

worship “elsewhere” was sufficient for

their religion. ......................................... 3

Changing the location, elements, or

time of familiar religious practice is a

substantial burden. ................................ 6

II. Native Peoples’ Worship at Sacred Sites is

Treated Unequally. ........................................ 8

Courts routinely reject Native Peoples’

claims seeking to protect sacred areas. . 8

Native sacred sites possess distinctive

qualities derived from the spiritual and

cultural significance of the land. ......... 11

CONCLUSION ................................................... ..15

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Apache Stronghold v. United States,

605 U.S. ___, 145 S.Ct. 1480 (2025) .......... 9, 12, 14

Badoni v. Higginson,

455 F. Supp. 641 (D. Utah 1977) ............. 10, 11, 12

Burwell v. Hobby Lobby Stores, Inc.,

573 U.S. 682 (2014) ................................................ 4

Holt v. Hobbs,

574 U.S. 352 (2015) ................................................ 4

Lyng v. Nw. Indian Cemetery Protective Ass’n,

485 U.S. 439 (1988) ........................................ 10, 11

Perez v. City of San Antonio,

163 F.4th 110 (5th Cir. 2025) .......................... 5, 11

Perez v. City of San Antonio,

168 F.4th 345 (5th Cir. 2026) .......................... 5, 14

Thomas v. Rev. Bd. of Indiana Emp. Sec. Div.,

450 U.S. 707 (1981) ................................................ 4

Statutes

Volstead Act, ch. 85, tit. II, § 6, 41 Stat.

305, 311 (1919) ..................................................... 13

Other Authorities

Stephanie Hall Barclay & Michalyn Steele, Rethinking Protections for Indigenous Sacred

Sites, 134 HARV. L. REV. 1294 (2021) .............. 9, 14

Jessica M. Wiles, Have American Indians Been

Written Out of the Religious Freedom Restoration Act?, 71 MONT. L. REV. 471, 501 (2010) ...... 9

United Nations, General Assembly, United Nations Declaration on the Rights of Indigenous

Peoples, art. 12, U.N. DOC. A/RES/61/295

(Sept. 13, 2007) .................................................... 14

STATEMENT OF INTEREST 1

The Association on American Indian Affairs is the

oldest national nonprofit protecting the sovereignty of

Native Peoples. The Association was formed to change

federal policy from the destructive path of assimilation, termination, and allotment to the path of sovereignty, self-determination, and self-sufficiency.

Throughout its more than 100-year history, the Association has provided national advocacy on watershed

issues that support sovereignty and culture, while doing grassroots work with Native Nations to implement

programs that support Native Peoples and revitalize

culture. The Association’s programs are designed to

empower Native Peoples by reclaiming and preserving what defines them, while fostering understanding,

healing, and allyship.

The Association believes that strengthening cultural connections and advocating for Native sovereignty will create a more equitable and accountable

world for all. Protecting Native sacred sites benefits

those who live near them by protecting the plants, air,

birds, insects, and all living things that make up an

ecosystem. Native worship recognizes the importance

of other living beings and thanks them in accordance

1 No part of this brief was written by any party’s

counsel, and no person or entity other than amicus curiae funded its preparation or submission. Counsel of

record for all parties received timely notice of amicus

curiae’s intent to file this brief.

with our co-dependence with the natural world. These

practices are not just sacred to Native Peoples but also

protect the collective health of all.

SUMMARY OF THE ARGUMENT

The Fifth Circuit held that destruction of a sacred

site at which Petitioners’ religion required them to

worship was not a substantial burden because they

could worship “elsewhere.” By doing so, the court

stepped outside its civil jurisdiction into matters of

faith to decide what religious practice could satisfy Petitioners’ spiritual obligations.

This misconstruction of the First Amendment

would be plain if applied to the familiar practice of a

well-known religion. And Native Peoples are unequally burdened by inadequate protections for

site-based worship because it is their religion and not

others that depends on sacred sites in the United

States, most of which are on government-owned land.

Native worship is often centered on sites the sacredness of which is inextricably tied to natural features

and living beings, such as plants, animals, birds, fish,

and water. The Fifth Circuit’s rule would permit the

destruction of Native Peoples’ worship, and, if extended beyond site-based worship, would interfere

with other religions in ways this Court has always understood to be unconstitutional.

ARGUMENT

I. Applying the Lower Court’s Reasoning to

Other Religious Practices Would Be Plainly

Unconstitutional.

A. The lower court told Petitioners that worship

“elsewhere” was sufficient for their religion.

Sometimes the details of religious practice can

seem needlessly specific to outsiders. An observer

might assume that certain elements could be swapped

for others without consequence. But to the believer,

the details are critical to the practice itself.

In the Judeo-Christian faiths, the Bible story of

Naaman illustrates the point. Naaman was a commander of the Syrian army who suffered from leprosy.

2 Kings 5:1. He traveled to Israel seeking a cure and

was directed by the prophet Elisha to go and wash

seven times in the Jordan River. Id. 5:10.

Naaman was furious at what seemed like an arbitrary instruction. Why the Jordan? “Are not Abana

and Pharpar, rivers of Damascus, better than all the

waters of Israel? May I not wash in them, and be

clean?” Id. 5:12. By any objective measure, the rivers

of Damascus were better—cleaner, closer to home,

more impressive, and more familiar. But Naaman relented, dipped himself seven times in the Jordan, and

was healed. Id. 5:14.

What mattered was obedience to the specific instruction—not the quality of the water. Had Naaman

bathed once in the Abana, or five times in the

Pharpar, he would have followed the general spirit of

the directive while missing the point of it entirely.

The court below made this mistake. Its ruling

amounts to the government—an outsider—standing

on the banks of the Jordan and telling the believer

“just use the other river,” or “surely five washings will

do.” That is not a judgment courts are constitutionally

permitted to make. See Thomas v. Rev. Bd. of Indiana

Emp. Sec. Div., 450 U.S. 707, 714 (1981) (courts may

not dissect religious beliefs or demand they be “acceptable, logical, consistent, or comprehensible”); Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 725

(2014) (whether a belief is “mistaken or insubstantial”

is “not for [courts] to say”); Holt v. Hobbs, 574 U.S.

352, 361–62 (2015) (availability of alternative means

of practicing religion does not defeat a substantialburden showing).

Like Naaman, Petitioners’ religious beliefs require

them to perform a ceremony at a specific place, with

specific elements, at specific times:

•

The place is that bend in the river. Pet. App. 3a,

405a.

•

The specific elements are the cormorants and

the trees at that bend. Id. at 404a, 421a.

•

The specific times are dictated by the migration

patterns of the cormorants. Id. at 422a.

Without any one of those, the ceremony would be

impossible and their religious practice destroyed. Id.

at 111a, 514a.

Despite this, the lower court substituted its own

judgment to decide that a ceremony nearby satisfied

Petitioners’ religious obligations: “Appellants continue to have virtually unlimited access to the Park

for religious and cultural purposes.” Perez v. City of

San Antonio, 163 F.4th 110, 122 (5th Cir. 2025) (“Perez IV”). This is the linchpin of the dispute—the lower

court told Petitioners that another place was the functional equivalent for their religious practice. But

“[t]hese are judgment calls [courts] simply do not

make.” Perez v. City of San Antonio, 168 F.4th 345,

348 (5th Cir. 2026) (“Perez V”) (Oldham, J., dissenting

from denial of rehearing en banc).

The lower court also told Petitioners that other,

nearby elements were sufficient: “Further, cormorants

are not specifically targeted nor dissuaded from nesting nearby or elsewhere in the 343-acre Park.” Perez

IV, 163 F.4th at 122.

And to support its conclusion, the lower court reasoned that because the ceremony was not always possible, it did not matter that government action would

make it forever impossible: “And as the record reflects,

regardless of the rookery management program, no

cormorants, due to their migration patterns, inhabit

the area for extended periods of time each year.” Perez

IV, 163 F.4th at 122. In other words, the lower court

construed against Petitioners the very thing that dictates the time of their worship.

In short, the lower court reasoned that because Petitioners do not worship at all times, it was not a

substantial burden on their religious practice to force

them to also change the location and elements of their

practice. As explained below, the opinion should not

stand.

B. Changing the location, elements, or time of familiar religious practice is a substantial burden.

The lower court’s flawed reasoning would be obvious if extended to more familiar religious practices.

For example, going “elsewhere” would destroy

more well-known sacred sites. A well-marked path

with fourteen stations of the cross in another city in

Israel would not be the Via Dolorosa, because Jesus

did not walk there. 2 Asking a Muslim to make their

Hajj pilgrimage to a nearby city other than Mecca

would not satisfy their religious duties. 3 Preventing

ten Jewish men from gathering to pray in person because videochat is available would not satisfy the requirements of a minyan for Conservative Jews. 4

2 The fourteen stations of the Via Dolorosa, TERRA

SANCTA MUSEUM, https://www.terrasanctamuseum.org/en/discover-more/the-fourteen-stations-of-the-sorrowful-way/ (last visited Aug. 28,

2026) (detailing path Jesus took on Good Friday from

sentencing to tomb).

3 MINISTRY OF JAHH & UMRAH, Hajj is a pillar of

Islam, https://haj.gov.sa/en/Hajj (last visited Aug. 28,

2026).

4 Rabbinical Assembly, Constituting a Minyan by

Changing the place of each of these sacred practices

would substantially burden that practice.

Changing the elements of religious practice—even

to something that seems similar or perhaps even better to an outsider—also constitutes a substantial burden. Courts do not decide for a Roman Catholic that

taking the Eucharist at another Christian church is

doctrinally sufficient. 5 Nor does U.S. Customs bar

Hindus from bringing water back from the Ganges because domestic water is readily available and

cleaner. 6 Nor would the government ever withstand

scrutiny for requiring Muslims to pray to the west because they still “face” Mecca, just the long way around

the globe.

Lastly, the infrequency of the time of religious ceremonies does not diminish their importance. Good

Means of Virtual Technology, https://www.rabbinicalassembly.org/professional-development/constituting-minyan-means-virtual-technology (last visited

Aug. 28, 2026).

5 CODE OF CANON LAW 844 § 1 (“Catholic ministers

administer the sacraments licitly to Catholic members of the Christian faithful alone, who likewise receive them licitly from Catholic ministers alone . . . .”).

6 The Garuda Purana, Ch. IX, verse 23 (Ernest

Wood & S.V. Subrahmanyam trans., 1922),

https://www.sacred-texts.com/hin/gpu/gpu11.htm

(last visited Aug. 28, 2026) (prescribing the Rite of

Dying: “Then one should give him the water of the

Ganges, which is the effacer of great sins . . . .”).

Friday and Christmas Eve services cannot be banned

merely because churches that hold them do not regularly conduct services on Fridays or the 24th of each

month. Nor could Passover and Yom Kippur ceremonies be barred simply because they happen only once

a year. Ramadan is not optional simply because its occurrence is determined by the phase of the moon. 7

To someone unfamiliar with the faith, each of these

examples might seem like an immaterial alteration.

But for followers of that faith, the burden is obvious

and real. Just so here.

II. Native Peoples’ Worship at Sacred Sites Is

Treated Unequally.

A. Courts routinely reject Native Peoples’ claims

seeking to protect sacred areas.

This case is not an aberration. Instead, lower

courts have repeatedly applied a “worship elsewhere”

rationale this Court has never sanctioned, and the

question will keep recurring because Native sacred

sites sit overwhelmingly on land the government owns

and manages.

Lower courts regularly hold that our laws do not

protect Native sacred sites. See Stephanie Hall Barclay & Michalyn Steele, Rethinking Protections for Indigenous Sacred Sites, 134 HARV. L. REV. 1294, 1342

7 Islamic Heritage Center, How to Determine the

Beginning

Ramadan,

https://www.ihcproject.com/howisramadandetermined (last visited Aug.

28, 2026).

(2021) (“Native American sacred sites are often

treated differently than other religiously significant

sites.”); Jessica M. Wiles, Have American Indians

Been Written Out of the Religious Freedom Restoration

Act?, 71 MONT. L. REV. 471, 501 (2010) (“With Navajo

Nation, American Indian religious practitioners have

been effectively written out of RFRA.”). This problem

is compounded by the fact that Native religions’ sacred sites are often on government-owned land. As a

result, “religious individuals are unable to voluntarily

perform their desired religious practices unless the

government affirmatively acts to lift its coercive

power through a religious accommodation.” Barclay &

Steele, Rethinking Protections, supra, at 1333.

Cases denying protection abound. For example,

the Ninth Circuit recently held in Apache Stronghold

v. United States that destroying Native sacred sites

and preventing the exercise of their religion was not a

substantial burden on their religious exercise when

the government’s act causing the destruction was the

mere disposition of its property. 605 U.S. ___, 145

S.Ct. 1480, 1484–85 (2025) (Gorsuch, J., dissenting

from denial of certiorari).

In Lyng v. Nw. Indian Cemetery Protective Ass’n,

the Court held that, even assuming the proposed logging road would “virtually destroy . . . the Indians’

ability to practice their religion,” the suit must fail because the “rights the Indians may have to the use of

the area . . . do not divest the Government of its right

to use what is, after all, its land.” 485 U.S. 439, 451–

53 (1988) (emphasis in original).

And the Tenth Circuit—relying on reasoning like

the Fifth Circuit’s here—has affirmed that intermittent use diminishes the burden of the destruction of a

sacred site. See Badoni v. Higginson, 455 F. Supp.

641, 646 (D. Utah 1977), aff’d, 638 F.2d 172 (10th Cir.

1980) (declining to prevent the destruction of Navajo

Peoples’ sacred sites on the ground that plaintiffs’ periodic use did not establish a sufficient religious interest, despite their explanation that “navajo ceremonies are not periodic ceremonies but are performed

when needed, and requested by an individual or family.” (citation modified)).

Accordingly, this case is an excellent vehicle for review because it is not unique. Instead, it is representative of the message lower courts have sent to Native

Peoples for nearly half a century: that the destruction

of their sacred sites is no substantial burden because

worship can occur “elsewhere”—a rationale this Court

has never endorsed. The question presented has recurred from Badoni to Lyng to Navajo Nation to

Apache Stronghold, and now to Perez. And it will continue to recur, because the sacred sites of Native religions sit overwhelmingly on land the government

owns and manages. Each new land-use decision—a

road, a mine, a rookery-management program—presents the same question. And each time the lower

courts answer it by deciding for the believer what his

religion requires. Only this Court can correct that

course.

B. Native sacred sites possess distinctive qualities

derived from the spiritual and cultural significance of the land.

For Native Peoples, the sacred nature of their worship at specific sites is deeply intertwined with specific stories and physical characteristics that render

the worship immovable and irreplaceable.

For the Choctaw People, the Nvnih Waiya Mound

near Choctaw, Mississippi is the place where they

were created. 8 There, the Creator (Hvshtahli) gathered clay from the nearby Nvnih Waiya Creek and

formed people underground. Id. They emerged from

the Nan Awaya Cave, with the Muscogee, Cherokee,

and Chickasaw departing to other lands, while the

Choctaw—the last to emerge—“decided to remain at

their place of creation.” Id. In their Migration Story, a

prophet carried the sacred pole, the Iti Fabvssa, which

the Creator tilted each evening to guide the people’s

journey eastward; only at Nvnih Waiya did the pole

stand upright, signaling that “the long-sought-for

land was found.” Id. The Choctaw then built the

Mother Mound at that site approximately 1,400 to

1,700 years ago. Id. To destroy this site or tell the

Nvnih Waiya: Mother of the Choctaw People,

Choctaw Nation of Okla. (Apr. 1, 2024)

(last update May 7, 2025),

https://www.choctawn-tion.com/news/iti-favssa/nvnih-waiya-motherof-the-choctaw-people/.

Choctaw to worship “elsewhere” would be to sever

them from the soil the Creator used to create them—

a place no other location on earth can replicate.

Oak Flat, the sacred site at issue in Apache Stronghold, is one of the places “Western Apaches believe that the site is the dwelling place of the Ga’an—

‘saints’ or ‘holy spirits’ that lie at ‘the very foundation

of [their] religion.’” 145 S.Ct. at 1480 (Gorsuch, J., dissenting from denial of certiorari) (alterations in original). They have been worshipping there for centuries.

Chimney Rock in southwestern Colorado was inhabited by the Ancestors of the Taos Pueblo Indians

as long ago as A.D. 925. 9 The moon rises between the

two rock spires every 18.6 years and the site remains

sacred to Taos Pueblo People this day. Id.

These sacred sites are the locations of Native Peoples’ stories of Creation, of birth, and of guiding spirits. Worship ceremonies are inherently tied to sites,

immovable. Destruction of these sites would forever

terminate worship.

9 Chimney Rock Archaeological Area, History Col-

orado (Mar. 1, 2001), https://www.historycolorado.org/

story/preservation/2001/03/01/chimney-rock-archaeological-area. This is a different sacred site named

“Chimney Rock” than was at issue in Lyng.

The error of the lower court’s decision is at least

partially due to unfamiliarity with Native Peoples’ religious practices.

Widely practiced religions reflexively receive accommodations. For example, communion wine was exempted from Prohibition. Volstead Act, ch. 85, tit. II,

§ 6, 41 Stat. 305, 311 (1919). Even today, clergy are

not prosecuted for providing alcohol to minors via

communion.

These legal exceptions are obvious. But to someone

with limited exposure to Christianity, grape juice

might seem to be the functional equivalent of wine as

many Christians use it for communion and believe the

consumption of alcohol to be a sin. The phenomenon

of treating religious practices differently depending on

how widespread they are is divorced from the First

Amendment.

The hypotheticals in Section I are just that—hypothetical. No American court will ever be asked to approve paving the Via Dolorosa or rerouting the Hajj,

because the sacred sites of the world’s major religions

lie overseas, beyond the reach of any government

land-management decision.

Native sacred sites are different. They are less

commonly understood by American courts. And they

are uniquely and overwhelmingly at risk because they

are often on government land. In contrast, international jurisdictions that contain the birthplaces of

major world religions have more fully grappled with

site-based worship. See, e.g., United Nations, General

Assembly, United Nations Declaration on the Rights

of Indigenous Peoples, art. 12, U.N. DOC.

A/RES/61/295 (Sept. 13, 2007) (“Indigenous peoples

have . . . the right to maintain, protect, and have access in privacy to their religious and cultural

sites . . . .”).

Consequentially, the “worship elsewhere” reasoning of the lower court—though facially neutral—operates as a rule for Native religions alone. Other faiths

rarely if ever encounter it; Native Peoples encounter

little else. A doctrine whose burdens fall on one set of

religions exclusively is not a neutral doctrine. See

Apache Stronghold, 145 S.Ct. at 1488 (Justice Gorsuch noting that the Ninth Circuit’s rule will have an

outsized impact on Native Peoples as that circuit encompasses 74% of federal lands and a third of the Native population); Barclay & Steele, Rethinking Protections, supra, at 1326 (“tribal members are not on the

same footing with those whose voluntary worship is

predominantly accomplished in private space.”). And

“respecting sacred sites—and recognizing the substantial burdens that attend their destruction—would

not privilege Native American religions. Rather, it

treats them equally.” Perez V, 168 F.4th at 348 (Oldham, J., dissenting).

CONCLUSION

For these reasons and those in Petitioner’s brief,

the petition should be granted and the lower court

opinion reversed.

August 31, 2026

Respectfully submitted,