ND Law’s Religious Liberty Clinic defends Apache sacred site from mining plan as Ninth Circuit reviews case
Apache Stronghold v. United States was one of the first cases that the Notre Dame Law School Religious Liberty Clinic supported when the clinic was newly established in the 2020-21 academic year. For the past two years, faculty and students from the Religious Liberty Clinic have stood with members of the Apache tribe to protect Oak Flat, a sacred site in Arizona that is threatened by a massive copper mining operation.
After a divided ruling from the U.S. Court of Appeals for the Ninth Circuit, the legal battle continued this spring when the Ninth Circuit reheard the case “en banc,” meaning in front of a full panel of 11 judges. Less than 1 percent of en banc requests are granted.
Professor Stephanie Barclay, director of the Notre Dame Law School Religious Liberty Initiative, participated in oral argument before the en banc Ninth Circuit on March 21 in Pasadena, California. Barclay represented the National Congress of American Indians, an Apache tribal elder, and other groups that protect Native American cultural heritage and rights. The groups were also represented in an amicus brief the Religious Liberty Clinic filed in the Ninth Circuit last fall.
Apache Stronghold v. United States involves a proposed mining project that would destroy sacred land where the Apache have gone for centuries to worship, pray, and conduct religious ceremonies. The site is also sacred to various other Native American tribes, including the ancestors of today’s O’odham, Hopi, Zuni, Yavapai, and Apache tribes.
Apache Stronghold — a nonprofit community organization dedicated to the defense of Native American sacred sites — has argued that the proposed copper mine at Oak Flat would violate the religious rights of many Apache and other Native Americans. Resolution Copper, a joint venture of British-Australian mining companies BHP and Rio Tinto, plans to construct a copper mine that would turn the sacred site into a massive crater.
In a previous hearing at the Ninth Circuit, a three-judge panel held in a 2-1 ruling that the federal government could proceed with the transfer of Oak Flat to Resolution Copper.
At the en banc rehearing, Barclay provided three arguments in support of Apache Stronghold to a new panel of judges: “First, this court should revisit its troubling rule under Navajo Nation. Second, the land rider did not displace RFRA (Religious Freedom Restoration Act). Third, it is government, rather than private action in this case, that imposes the substantial burden on the religious exercise of the Apache people.”
She argued alongside Luke Goodrich, vice president and senior counsel at Becket Law.
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, Barclay told the panel of judges.
Whether they are directly or indirectly affected by government actions, Native American tribes tend to be vulnerable to government violations of their religious liberty.
After the en banc hearing, a diverse coalition of Indigenous activists, environmental groups, religious advocates, and legal practitioners convened in front of the courthouse steps, where Barclay delivered remarks.
“I was proud to argue in oral argument on behalf of Notre Dame's Religious Liberty Clinic today. Notre Dame was proud to argue alongside Becket and our Apache friends in this fight for Oak Flat,” Barclay said.
“Although our religious beliefs are different, we see that what the government is doing is wrong,” she said. “Just as we would hope that people would defend [us] if someone wanted to destroy a sacred shrine or a pilgrimage site for Christian religious groups, so, too, should the government have to justify its actions if it wants to destroy this sacred site of Oak Flat.”
In her remarks, Barclay emphasized the contributions that Notre Dame Law students from the Religious Liberty Clinic made in helping with the briefing and participating in all of the preparations leading up to oral argument. They were involved in the case starting from the earliest inception at the district court level to the en banc Ninth Circuit.
“Several of the Religious Liberty Clinic’s students who had worked on the amici briefs observed and participated in every step of preparation for Professor Barclay’s oral argument before an en banc panel of the Ninth Circuit, including watching moot panels, researching tricky legal issues, and discussing strategy,” said Meredith Holland Kessler, staff attorney for the Religious Liberty Clinic.
“In addition to offering meaningful assistance to Professor Barclay, the students had the opportunity to witness the extensive preparation process that oral argument requires — an invaluable learning experience before the students serve in federal clerkships and begin their legal careers after graduation,” Kessler said. “This training for the practice of law by advocating for the religious liberty of all people is precisely the formation that the clinic seeks to provide to Notre Dame Law students.”
Third-year law students Olivia Rogers and William Eisenhauer, as well as second-year law students Jared Huber and Athanasius Sirilla assisted Barclay and Francesca Genova Matozzo, legal fellow at the clinic, with the amicus brief that was filed in the Ninth Circuit in September 2022. The clinic previously filed an amicus brief in Apache Stronghold in February 2021 arguing in favor of religious liberty protections for Oak Flat.
Huber attended the proceedings in Pasadena last month.
“The Religious Liberty Clinic’s work helping protect Oak Flat is critical because it is an opportunity to be a voice for those challenging unjust government burdens on religion. If government facilitation of a holy site’s annihilation is not a burden on religious exercise, we can know no other,” Huber said. “I am immensely grateful I had the opportunity to be a small part of that voice by helping prepare for and attend the oral argument before the Ninth Circuit.”
Eisenhauer was also present at the oral argument. After his experience there, he shared, “I was proud to help Professor Barclay prepare for oral argument in this important case. She made clear that the law protects Native Americans’ religious freedom just as much as it protects everyone else’s.”
Barclay reiterated her support for Apache Stronghold and saving Oak Flat following the oral argument: “I'm optimistic that, after argument today, the Ninth Circuit will issue a ruling that will make clear that our religious freedom laws apply equally to people of all faith and to all sorts of places of worship whether we're talking about a synagogue or a mosque or a Native American sacred site.”
About the Notre Dame Law School Religious Liberty Initiative
Established in 2020, the Notre Dame Law School Religious Liberty Initiative promotes and defends religious freedom for all people through advocacy, formation, and thought leadership. The initiative protects the freedom of individuals to hold religious beliefs as well as their right to exercise and express those beliefs and to live according to them.
The Religious Liberty Initiative has represented individuals and organizations from an array of faith traditions to defend the right to religious worship, to preserve sacred lands from destruction, to promote the freedom to select religious ministers, and to prevent discrimination against religious schools and families.
Learn more about the Religious Liberty Initiative at religiousliberty.nd.edu.
Originally published by at religiousliberty.nd.edu on April 28, 2023.