CROSSPOST: Court fails to grasp that protecting Indigenous people's freedom of religion means protecting their sacred lands

[Crossposted from Healing Minnesota Stories blog]

Indigenous spiritual practices are fundamentally tied to their sacred lands. That has profound implications for protecting their freedom of religion: The right to practice their religion without interference.

Blocking Indigenous peoples access to their sacred sites is the definition of interference. Yet U.S. courts don’t get it, as can be seen in the recent ruling in Apache Stronghold v. The United States of America.

The decision could impact many other religions, too.

It’s all about mining

The story starts in 1995 when a mining company discovered the third-largest copper deposit in the world some 7,000 feet below Arizona’ Tonto National Forest. Mining company Resolution Copper currently has claims to much of the deposit, but not the part that extends beneath the federally protected Oak Flat site.

Oak Flat is a sacred site to the San Carlos Apache. It’s also a U.S. Forest Service picnic and camp ground. (See map here.)

Arizona’s Congressional delegation pushed to transfer Oak Flat to Resolution Copper for the mining jobs it would create. In 2014, Congress authorized a land swap.

Oak Flat, Arizona. Image: Elias Butler.

Apache Stronghold, a nonprofit that works to preserve and protect Indigenous sacred sites, opposed the move. The land swap “violated the Religious Freedom Restoration Act (“RFRA”), the Free Exercise Clause of the Constitution’s First Amendment, and a trust obligation imposed on the United States by the 1852 Treaty of Santa Fe between the Apache and the United States,” it said.

Apache Stronghold sought a temporary restraining order to stop the land exchange. It lost in district court and appealed to the U.S. Court of Appeals.

Western Apaches have centered their religious practices on Oak Flats since “time immemorial,” Apache Stronghold wrote in its legal brief. “It is the direct corridor to their Creator and the site of numerous essential religious ceremonies that cannot take place anywhere else.”

“Yet in a matter of months, the United States plans to transfer control over this sacred site to a mining company for the express purpose of constructing a mine that all parties agree will destroy the site forever.”

Part of a long history

The National Congress of American Indians and others filed a fried-of-the-court brief. They said:

Meaningful access to sacred sites is a necessary part of the religious exercise of many Indigenous peoples. But tribes have been repeatedly denied such access by the federal government, and thus repeatedly thwarted in their efforts to engage in these important religious practices. In many instances, that access has been irrevocably denied and those efforts permanently thwarted by the total destruction of Indigenous sacred sites. Indeed, the colonial, state, and federal governments of this Nation have been desecrating and destroying Native American sacred sites since before the Republic was formed.

Amici Brief

On Friday, the U.S. Appeals Court for the Ninth District denied the temporary restraining order, following the lower court’s reasoning.

The majority held that the land swap was not a “substantial burden” to the Apache’s religious practices. Dissenting Circuit Judge Martha Berzon called it an “absurd conclusion.”

A narrow definition of ‘substantial burden’

Under the Religious Freedom Restoration Act, the majority wrote, a “substantial burden” to religious freedom only applies when “individuals are forced to choose between following the tenets of their religion and receiving a governmental benefit” or are coerced to act contrary to their religious beliefs by civil or criminal penalties.

Neither of those apply to the Oak Flat land swap, the majority said. The USDA will simply transfer Oak Flat ownership to Resolution Copper, an act that doesn’t “coerce the Apache to abandon their religion by threatening them with a negative outcome.”

Comment: While the land swap doesn’t coerce the Apache to abandon their religion, it greatly diminishes their ability to practice it.

The U.S. Department of Agriculture (USDA), which oversees the U.S. Forest Service, was a party to the case. It argued that the Supreme Court had long held that neither the First Amendment or the Religious Freedom Restoration Act required the government to manage its property to conform to “the religious beliefs or practices of its citizens.”

“Indeed, ‘no government—let alone a government that presides over a nation with as many religions as the United States of America—could function were it required to do so,’” the USDA wrote.

A case of ‘enormous importance’

Also filing an amici brief were the Jewish Coalition for Religious Liberty, the International Society for Krishna Consciousness, the Sikh Coalition, the Church of Jesus Christ of Latter-Day Saints, and a group called Protect the 1st. It said:

This is a case of enormous importance, not just for members of the Apache Nation, but for all people and communities of faith. Virtually every faith community recognizes sacred spaces that are of special religious significance. …

… the district court’s erroneously narrow standard for what qualifies as a substantial burden under [the Religious Freedom Restoration Act] will harm Jewish, Muslim, Sikh, Buddhist, Hare Krishna, Christian and all manner of religious communities, organizations and individuals. … Making it impossible to observe one’s faith by permanently destroying a holy site is the most substantial burden of all.

Amici brief

The court’s majority acknowledged the harm and said the decision was out of its hands.

“As we reach this conclusion, we do not rejoice,” the majority wrote. “Rather, we recognize the deep ties that the Apache have to Oak Flat … And we acknowledge that the Land Exchange may impact the Apache’s plans to worship on Oak Flat.”

“This dispute must be resolved as are most others in our pluralistic nation: through the political process,” it wrote.

Comment: In other words, the Apache’s freedom of religion is subject to “the political process.” Given how little political power Native Nations have, that’s absurd.

Not following intent of the law

The little known Religious Freedom Restoration Act (RFRA) was a key part of this case.

Congress passed it in 1993, a response to an unpopular Supreme Court decision, Employment Division v. Smith. The Court upheld the denial of unemployment benefits to two Native American men who were fired from drug counseling jobs after testing positive for peyote. They had taken the peyote as part of a Native American religious ceremony.

The law was designed to protect minority religious groups’ constitutional rights, the Human Rights Campaign said.

Despite this focused, straightforward intent, individuals and businesses have worked to distort RFRA into a blank check to discriminate or to impose their religious beliefs on others. In 2014, the U.S. Supreme Court issued a ruling in Burwell v. Hobby Lobby Stores, in which the Justices were asked to decide whether requiring a corporation to provide insurance coverage that includes contraception under the Affordable Care Act (ACA) is a “substantial burden” on the corporation with religious objections, and whether corporations are covered by RFRA. The Court ruled that closely held for-profit corporations are exempt from complying with the ACA contraception mandate based on the company’s religious belief under RFRA.

Human Rights Campaign