Divided Ninth Circuit rejects Apache religious challenge to mine development on sacred land at Oak Flat

In a 6-5 ruling, a divided en banc Ninth Circuit affirmed the district court's denial of Apache Stronghold's motion for a preliminary injunction in Apache Stronghold v. United States of America. The Ninth Circuit’s ruling clears the way for the destruction of Oak Flat, an Indigenous sacred site in Arizona that is being threatened by a massive copper mining operation. The site is a federally-protected area listed on the National Register of Historic Places, the birthplace of the Western Apache religion, and the site of ancient religious ceremonies that cannot take place anywhere else. The Ninth Circuit’s decision is wrong, and Notre Dame Law School’s Religious Liberty Clinic hopes that the Supreme Court will correct it.

The destruction of Oak Flat would impose a substantial burden on Native American religious exercise, as Native American religious identity, expression, and practices are inextricably tied to the sacred land. The Apache have gathered at Oak Flat for centuries to worship, pray, and conduct religious ceremonies. Oak Flat is also sacred to various other Native American tribes, including the ancestors of today’s O’odham, Hopi, Zuni, and Yavapai tribes.

The federal government is now planning to 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.

 

Five judges dissented. In her dissenting opinion, Chief Circuit Judge Mary H. Murguia argued that “any ordinary understanding of the English language” demonstrates that the “utter destruction of Chí’chil Biłdagoteel, a site sacred to the Western Apaches since time immemorial, is a ‘substantial burden’ on the Apaches’ sincere religious exercise under” RFRA (Religious Freedom Restoration Act).

Citing Professors Stephanie Barclay and Michalyn Steele, the authors of “Rethinking Protections For Indigenous Sacred Sites” published by the Harvard Law Review, Chief Judge Murguia highlighted the uniqueness of Native American sacred sites, to which “the government controls access.” Because of this control, Native Americans are “at the mercy of government permission to access sacred sites.”

The five dissenting judges concluded, “The majority tragically errs in rejecting Apache Stronghold’s RFRA claim. … [W]e are faced with government action that will result in a massive hole obliterating Oak Flat and categorically preventing the Western Apaches from ever again communing with Usen and the Ga’an, the very foundation of the Apache religion. The effect will be immediate and irreversible.”

The five dissenting judges also asserted, “Under RFRA, preventing religious adherents from engaging in sincere religious exercise undeniably constitutes a ‘substantial burden.’”

The court issued a brief per curiam opinion. Judge Daniel P. Collins authored the majority opinion for the court. Judge Carlos Bea filed a partial concurrence and partial dissent. Judges Ryan D. Nelson and Lawrence VanDyke authored separate concurrences. Chief Judge Murguia wrote the dissent, with an additional dissent by Judge Kenneth Lee.

The Notre Dame Law School Religious Liberty Clinic represents amici curiae the National Congress of American Indians, an Apache Tribal Elder, and other groups that protect Native American cultural heritage and rights.

Notre Dame Law School’s Religious Liberty Clinic is hopeful that the Supreme Court will take this case, confirm the plain meaning of federal law, and maintain that Indigenous sacred sites like Oak Flat are entitled to the same religious liberty protections as all other houses of worship.

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 Arienne Calingo at religiousliberty.nd.edu on March 04, 2024.