April 21, 2024

Earlier this month, the Ninth Circuit Court of Appeals refused to stop the construction of a copper mine in Arizona on land sacred to the San Carlos Apache tribe as well as other indigenous nations. Chí’chil Biłdagoteel, also known as Oak Flat, sits atop the third largest copper deposit on the planet and is essential for green energy projects. The operation, which by Resolution Buyera subsidiary of mining companies Rio Tinto and BHP, will leave a crater nearly 1,000 feet deep and 2 miles wide.

“Oak Flat is like Mount Sinai to us – our most sacred place where we connect with our Creator, our faith, our families and our country,” said Wendsler Noise of Apache Fortress, a nonprofit organization fighting to protect the area. “We promise to appeal to the Supreme Court.”

Over the years Oak Flat has developed a stories history. In 2014, Oak Flat was part of a military spending bill that would allow the government to “swap” the area with other land in Arizona. In 2016, it was added to the National Register of Historic Places in an effort to protect it, and in 2021 the Apache stronghold sued the government, arguing that the land was reserved for the Western Apaches in an 1852 treaty. Then, in 2023, Apache made Stronghold the case that the land transfer would prevent them from practicing their religion. The court disagreed.

The issue before the court illustrates a battle between religion, indigenous rights and potential solutions to the climate crisis. For tribal lands such as the San Carlos Apache known as “land-based religions”—ceremonial practices inextricably linked to territories with which indigenous peoples have relationships—preserving those lands with religious significance is paramount to the survival and transmission, of both culture and values ​​to the next generation.

But for developers, the proposed mine would support several thousand jobs for the surrounding community, inject $61 billion into the local economy and provide a critical supply of copper for everything from electric vehicles to energy storage systems. By 2031, the world will need nearly 37 million metric tons of copper to continue the process of green energy electrification. Resolution Copper said this Oak Flat could provide a quarter of US copper production.

At the heart of Apache Stronghold’s legal case is something called “substantial burden”—there must be proof that the government has interfered with an individual’s right to practice their religious beliefs. Substantial burdens protect American citizens from government interference unless the government has a very good reason. This means that Apache Stronghold’s claim must be justified with a high level of scrutiny.

If the case goes to the Supreme Court, and Apache Stronghold wins, the federal government will have to show a compelling reason to destroy Oak Flat.

“If the Supreme Court finds that Oak Flat land transfer is a substantial burden on Apache religious practices, the court sends the case back to the lower court,” said Beth Margaret Wright, who is from the Pueblo of Laguna and an attorney with the Native American Rights Fund. “Then it will be on the government to prove that the land transfer was carefully tailored to a compelling government interest.”

Wright said that’s a pretty high bar for the government to meet, and it’s complicated by the court’s history with land-based religions.

According to the court’s recent decision, Oak Flat is similar to an older case from California: Lyng v. Northwest Indian Cemetery Protective Association. In the 1980s, the United States Forest Service was sued by the Northwest Indian Cemetery Protective Association over the proposed construction of a road. The Yurok, Karuk and Tolowa tribes argued that the road would irreparably damage an area where tribal members held religious ceremonies.

Ultimately, the US Supreme Court ruled that the federal government could do whatever it wanted with its land and said that the government could not be held responsible for the religious needs of its citizens – a sort of “smooth slope” which recognized that a favorable ruling for the tribes would provide a veto button for other indigenous nations on public projects in the future. In its ruling, the Supreme Court acknowledged that there were deep-rooted religious beliefs attached to the land, but the road was built anyway.

Joe Davis, a lawyer with Beckett Lawthe firm defending Apache Stronghold said the narrow focus on Lyng is at issue with Oak Flat: He says it’s the wrong framework.

Five years after the Lyng decision, the Religious Freedom Restoration Act, or RFRA, has been passed. Because RFRA was written to expand religious protections, the Apache Stronghold seeks to have the expanded protections under RFRA applied to Oak Flat.

“This is a case, at its heart, about the Religious Freedom Restoration Act, which uses different language and is broader than the First Amendment,” Davis said.

And that argument has some history with the courts. In 2012, Becket did too Hobby Lobby defended at the Supreme Court and won with the help of the Religious Freedom Restoration Act. In that case, the court ruled that the family that owns Hobby Lobby could, under RFRA, refuse to provide birth control to employees under federal insurance laws because of religious beliefs. In essence, the court found that the federal government imposed a substantial burden because the use of birth control violated the owners’ religious liberties.

“Starhorse Lobby shows that RFRA is very powerful,” Davis said. “This case is an opportunity for the Supreme Court to fulfill the promise of RFRA.”

The Ninth Circuit held that in Oak Flat, substantial burden was not met, citing the Lyng case. But the Lyng case does not define substantial burden, RFRA does, and Davis argues that the court made a leap by applying substantial burden when the concept was not used in the Lyng case. Basically, the court did not use the broad protections provided by RFRA and instead applied a ruling from a pre-RFRA world.

If the case is picked up by the US Supreme Court and Apache Stronghold wins, it will help clear up a significant burden. But with that clarity, there may be many more legal battles to come that test the limits of the First Amendment for indigenous peoples.

“It can help us in the sense that a significant burden now encompasses more land-based religions,” said Beth Margaret Wright at the Native American Rights Fund. “But this does not necessarily mean that our land-based religions and practices are protected forever.”

A spokesman for the US Forest Service, the agency named in the lawsuit, declined to comment, citing ongoing litigation.

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