A court decision that made way for the federal government to transfer land sacred to Southwest tribes to a foreign mining company shows the fragility of legal protections for Native American religious practices and has put the U.S. out of step with global jurisprudence when it comes to protecting sacred Indigenous land.
That’s according to Lauren van Schilfgaarde (Cochiti Pueblo), assistant professor at UCLA School of Law, who spoke on a livestream hosted by the American Bar Association examining a controversial ruling allowing the federal government to sell 2,400 acres of land in the Tonto National Forest — including an area with religious significance to the Western Apache and other tribes in the region — to a Chinese-owned mining conglomerate.
The livestream took place Thursday, June 11, and featured a panel discussion about the ruling among decorated attorneys, including Akilah J. Kinnison, partner at Hobbs, Straus, Dean & Walker LLP; Martin S. Lederman, professor from practice and senior fellow at the Supreme Court Institute at Georgetown Law; Stephanie Barclay, professor of law at Georgetown Law School and faculty co-director of the Georgetown Center for the Constitution; and van Schilfgaarde. The panel was moderated by Richard T. Foltin, fellow for Religious Freedom at Freedom Forum; special counsel for the ABA Section of Civil Rights and Social Justice; and co-chair of the Religious Freedom Committee of the ABA Section of Civil Rights and Social Justice.
Known in Apache as Chi’chil Biłdagoteel, Oak Flat is located outside present-day Superior, Arizona. The site has been used for sacred ceremonies by Western Apaches and other Native peoples since time immemorial. It is listed on the National Register of Historic Places and was protected from mining and other destructive practices for decades.
That protection ended in December 2014, when a midnight provision authorizing the land transfer was included in a must-pass defense bill, allowing the federal government to exchange Oak Flat for other lands and hand it over for mining development.
The legal battle over Oak Flat has spanned years. Apache Stronghold appealed its case to the U.S. Supreme Court, which declined to hear it last year. In a dissent, Justice Neil Gorsuch, joined by Justice Clarence Thomas, called the court’s refusal “a grievous mistake.”
Following that decision, the case returned to the lower courts while additional emergency appeals remained pending. However, earlier this year, the federal government transferred Oak Flat to Resolution Copper, moving the project forward before those appeals could be resolved.
Religious Protections
The Religious Freedom Restoration Act was the central legal argument against the transfer. The act, passed in 1993, requires the government to prove a substantial burden before encroaching on religious exercise and to use the least restrictive means or an alternative to achieve its interests.
The 9th Circuit court ruled that the mine does not impose a substantial burden on Apache religious practices because the government was disposing of its own property, not penalizing or denying benefits to people for their religious beliefs, as stipulated by RFRA.
Livestream panelists agreed that RFRA’s protections are insufficient for Native religious practices.
The foundation of RFRA is protection against the government penalizing or denying benefits to people for their religious beliefs. When the federal government holds the means to the religious beliefs, those protections don’t translate the same as for other groups.
“We’re looking at the baseline wrong under RFRA if we treat Western Apaches as though they are operating in a context of free choice when it comes to exercising their religion, and that’s the context where government normally imposes penalties or denies burdens,” van Schilfgaarde argued. “The baseline is different when we’re dealing with the context where government controls all the resources surrounding religious exercise.”
Barclay agreed, pointing to the government’s own environmental impact study that showed the mine will cause irreparable damage to the sacred site.
“How can it be the case that the government is able to acknowledge, yes, we’re going to permanently make it impossible for you to continue to practice your religion in this really critical way, and for courts to hold there’s no substantial burden, because that is what happened in this case,” Barclay said.
International Jurisprudence
Panelists discussed how the decision infringes on Indigenous cultural rights, which international courts are increasingly recognizing, while American courts have yet to do so.
The United Nations Declaration on the Rights of Indigenous Peoples, officially adopted by the U.N. in 2007, recognizes Indigenous peoples’ rights to maintain, protect and have access to their sacred sites and ceremonial objects, and to maintain and strengthen their distinctive spiritual relationship with their traditionally owned lands. The Oak Flat decision, favoring government land ownership over those rights, stands in contrast.
“It’s not just the destruction of this site, it’s the impact that it is having on the people themselves,” van Schilfgaarde said. “It’s not controversial; it is openly recognized as a violation in international law. The failure to have some sort of mirror of that in American jurisprudence is an outlier.”
