The Sunrise Ceremony, often attended by hundreds, marks an Apache girl’s transition to womanhood. To prepare, a girl gathers acorns, yucca, saguaro cactus, and cedar, speaking a prayer of thanks to the spirit of Oak Flat. She is then dressed in raiment, representing the essential tools of womanhood, and Tribal members surround her in song, dance, and prayer. On the final day, she is painted in white clay taken from the sacred ground in Oak Flat, molding her into the woman she will be. For the Apaches, this ceremony and others can take place only at Oak Flat.
For decades, the federal government recognized Oak Flat’s importance. President Eisenhower reserved 760 acres of Oak Flat in 1955 for “public purposes” to protect it from mining, and President Nixon renewed the protection in 1971. For its part, the National Park Service recognized that “Chi’chil Bildagoteel is an important feature of the Western Apache landscape as a sacred site, as a source of supernatural power, and as a staple in their traditional life way.”
Yet, soon, that federally recognized way of life may be impossible, as Oak Flat now faces the threat of imminent and complete destruction. In a midnight rider to a defense funding bill passed in 2014, Congress set in motion plans for the United States to transfer the sacred site to a subsidiary of Rio Tinto, an international mining company, to excavate a large copper ore deposit thousands of feet below ground. To access the ore, Rio Tinto plans to decimate Oak Flat, leaving behind a crater two miles wide and a thousand feet deep.
A coalition of Apache Tribe members and others formed a group called Apache Stronghold and sued in federal court to stop the transfer and destruction of Oak Flat. Their central claim was that destroying Oak Flat would violate a statute protecting religious freedom—the Religious Freedom Restoration Act (RFRA). A nearly unanimous Congress passed RFRA in response to the Supreme Court’s 1990 decision in Employment Division v. Smith, which—in the context of another Native American case—severely weakened the First Amendment’s protection for religious exercise, particularly in the case of religious minorities. RFRA sought to restore religious freedom by providing that whenever the government “substantially burdens” religious practice, the government must show that its action is the least restrictive means of furthering a compelling government interest.
Despite RFRA’s robust protection, the plaintiffs in Apache Stronghold v. United States have been denied at every turn. First, the district court, then a panel of the Ninth Circuit Court of Appeals, and most recently, a sharply divided 11-judge en banc decision of the Ninth Circuit have ruled that the Apaches have no claim under RFRA. Notably, the Ninth Circuit didn’t rule for the government because the government had shown a compelling need to access the ore deposit and that this was the only way to do so. Instead, the Ninth Circuit held that there was no substantial burden on religious belief in the first place. As a result, the court ruled that the government didn’t have to meet RFRA’s strict scrutiny standard in the Apaches’ case.
In so ruling, however, the court’s rationale shifted. At the panel stage, in a decision the dissenting judge decried as “absurd,” “illogical,” and “disingenuous,” a divided three-judge panel ruled that the government substantially burdens religious practice if it coerces or penalizes religious practice, but not if it completely prevents religious practice. According to that reasoning, the government’s demolishment of a sacred site wouldn’t qualify as a substantial burden.
At the en banc stage, six of the 11 judges on the court rejected the panel’s reasoning. Yet, a different six-judge majority ruled that when it comes to the government’s disposition of federal land, its actions don’t substantially burden religious beliefs unless the government coerces or penalizes religious practice or discriminates between religious beliefs. In other words, the court largely revived the panel’s cramped definition of substantial burden for cases involving the disposition of government property.
The problem with both approaches is that the statute simply says “substantially burdens.” It doesn’t carve out government actions that entirely preclude religious exercise—which under any ordinary definition of burden constitutes the most substantial form of burden. Neither does it give the government a free pass when dealing with its own land. Of course, giving a natural reading to the phrase “substantially burdens” wouldn’t mean the plaintiff always wins in cases like this. If the government has important reasons for using or disposing of its property in a way that incidentally burdens religious practice, it can justify its actions under RFRA’s compelling interest test. Alternatively, because RFRA is a statute that applies by default to federal law, Congress can override its application in specific laws. It could have done so here when it passed the midnight rider transferring Oak Flat, but it didn’t.
The en banc court reached its awkward interpretation by looking to a pre-Smith First Amendment case, Lyng v. Northwest Indian Cemetery Protection Association, that ruled against Native American plaintiffs who sought to block the government from completing a road project in the Chimney Rock area near sites historically used for religious rituals. According to the en banc court’s logic, Congress must have intended to repeal one bad precedent—Smith—while implicitly leaving intact other decisions like Lyng that narrowly construed the First Amendment, essentially incorporating them as part of RFRA.
That’s wrong for several reasons. For one, the court’s assumption that the government should be able to dispose of its own land overlooks the tragic history of Native tribes and groups being uprooted and dispossessed of their ancestral lands and sacred sites. Even if the government now owns the land, it, at a minimum, must recognize that Native groups have a preexisting and historically rooted interest in the property that may transcend the government’s ownership. The court’s reasoning also reads RFRA at odds with its identically worded “sister statute,” the Religious Land Use and Institutionalized Persons Act (RLUIPA). The Ninth Circuit and other courts have held that the term “substantially burden” in RLUIPA should be given a plain-meaning interpretation. Under RFRA, however, the same words are given a reading that is anything but plain—requiring a special three-prong analysis for a special category of cases. What’s more, the Supreme Court has repeatedly made clear that RFRA didn’t adopt pre-Smith First Amendment law in “ossified form.” In contexts ranging from the military to prisons, the Supreme Court and lower courts have come to a consensus that RFRA does away with prior First Amendment cases that allowed the government to dodge strict scrutiny.
The stakes of the Apache Stronghold case are important—and not only for the Apaches. In the Ninth Circuit, Sikhs, Muslims, Jews, Christians, Mennonites, Tribal organizations, and other religious groups filed amicus briefs sounding the alarm and supporting the Apaches’ position. The case is also important for anyone who thinks an ecological area as rich and important as Oak Flat should be protected for its own sake. That is why groups like the National Wildlife Federation, the Center for Biological Diversity, and the Sierra Club have also voiced support for the Apaches’ case.
Perhaps most troubling, the Ninth Circuit’s ruling erects an Indigenous double standard, replicating the trend of earlier First Amendment case law like Lyng and Smith that undermined Indigenous people’s ability to protect their age-old practices from government encroachment. As the Apaches’ counsel has put it, the ruling opens up a “conspicuously Native-American-shaped hole” in RFRA’s otherwise broad protection for people of all faiths.
Over the last 20 years, the Supreme Court has consistently applied RFRA to protect people of diverse faiths—from the Christian owners of Hobby Lobby and the Catholic Little Sisters of the Poor to Muslims placed on the Federal Bureau of Investigation’s No Fly List and a small Brazilian religion that used a controlled substance as a sacrament. Apache Stronghold is an important test of whether the Court will extend to Native Americans the same broad religious freedom protection that all other Americans enjoy.
