Apache Stronghold Seeks Full-Court Rehearing to Save Sacred Land

Notre Dame Law School Religious Liberty Clinic Files Amicus Brief in Support of Request

Last week, Notre Dame Law School’s Religious Liberty Clinic filed an amicus brief in Apache Stronghold v. United States of America in support of robust protection for the religious freedom of Native Americans to worship at sacred sites.

The brief urges the Ninth Circuit Court of Appeals to grant full en banc rehearing to ensure that the Religious Freedom Restoration Act, a federal law that offers heightened protections for religious exercise, is properly interpreted to afford equal protection for the Indigenous community.

In March, a deeply divided, eleven-judge panel of the Ninth Circuit interpreted RFRA to impose a harmful double standard that uniquely harms Indigenous claimants whose sacred worship sites are located on government-controlled tribal lands. Applying that standard, the court affirmed the district court’s denial of Apache Stronghold’s motion for a preliminary injunction. The ruling clears the way for the destruction of Oak Flat, an indigenous sacred site in Arizona, by a massive copper mining operation.

Apache Stronghold now requests rehearing by the full Ninth Circuit Court of Appeals. If the petition is granted, all 29 active judges will reconsider the scope of RFRA’s protections for land-based religions.

 

The Clinic’s brief explains that full en banc rehearing is needed to clarify the meaning of RFRA’s text and to align the Ninth Circuit’s approach with governing Supreme Court precedent. Moreover, the brief emphasizes that the controlling decision of the splintered eleven-judge panel perpetuates a long history of abuses toward Native peoples.

“Throughout this wearying fight we have simply sought to protect our religious freedom,” said Mona Polacca, International Council of Thirteen Indigenous Grandmothers. “Destroying our sacred land is sadly not new for Indigenous communities, but we are hopeful that our case will be reheard and that our land will be saved.”

“Notre Dame’s Religious Liberty Clinic will continue to stand with the Western Apache and other Indigenous peoples who have so much at stake with the threat of their sacred site facing destruction,” said Professor Stephanie Barclay, director of the Notre Dame Law School Religious Liberty Initiative.

The Notre Dame Law School Religious Liberty Clinic represents amici curiae the International Council of Thirteen Indigenous Grandmothers, the MICA Group, and Apache Tribal Elder Ramon Riley. The brief was filed on Thursday, April 25, 2024. Dozens of other individuals, organizations, and legal scholars also supported Apache Stronghold’s petition.

Notre Dame Law School’s Religious Liberty Clinic is hopeful that the full Ninth Circuit will rehear the case and recognize that Indigenous sacred sites like Oak Flat are entitled to the same religious liberty protections as all other houses of worship under federal law.

”Something very important about the Notre Dame Law School Religious Liberty Clinic is the effort we make to take cases impacting people of all faiths, including those that might be quite different from the Catholic faith of the law school,” said Olivia Lyons, student fellow and second-year law student. “I learned in particular about the special struggle of land-based religions, and how they face particularly burdensome discrimination at the hands of the government. Our religious liberty law needs to adapt to accommodate faiths that are land-based, because they are just as deserving of equal rights."

Without full en banc rehearing, the federal government will proceed with the transfer of Oak Flat to Resolution Copper, a joint venture of British-Australian mining companies BHP and Rio Tinto. The foreign-owned mining company plans to construct a copper mine that would turn the sacred site into a massive crater, ending Apache religious practices at Oak Flat forever.

About the Notre Dame Law School Religious Liberty Clinic

The Notre Dame Law School Religious Liberty Clinic represents individuals and organizations from all faith traditions to promote not only the freedom for people to hold religious beliefs but also their fundamental right to express those beliefs and to live according to them. Students in the Clinic work under the guidance of Notre Dame Law School faculty and staff to provide advice, counsel, and advocacy on a broad array of matters related to religious freedom in the United States and abroad. The Religious Liberty Clinic has participated in proceedings at all levels of federal and state courts, in administrative agencies, and before foreign courts and other governmental bodies around the world.

Learn more about the Religious Liberty Clinic at religiousliberty.nd.edu/clinic/.

Originally published by Notre Dame Law School at religiousliberty.nd.edu on May 01, 2024.