Years-long court challenges attempting to stop the federal government’s transfer of sacred tribal land in Arizona to a copper mining company show how US religious protections haven’t been equally applied, academics and attorneys say.
Indigenous and environmental groups have filed multiple lawsuits against the US Forest Service seeking to preserve Oak Flat, a 6.7-square-mile site for Western Apaches’ religious ceremonies that plaintiffs say can’t take place anywhere else.
Native American religious practices “require relationships with specific locations and natural features,” and “the law hasn’t caught up to that respect that is necessary in order to protect these interests adequately,” said Heather Whiteman Runs Him, director of the Tribal Justice Clinic at the University of Arizona.
The legal paths for tribal groups to protect Oak Flat on religious grounds have been narrowed by several decisions, especially in the US Court of Appeals for the Ninth Circuit. Their options grow smaller the closer the government gets to transferring the land for the planned mine, with limited avenues to challenge privately controlled property.
The Ninth Circuit has consistently relied on precedent set in Lyng v. Northwest Indian Cemetery Protective Association, a 1988 Supreme Court decision saying the government doesn’t have to provide a compelling justification for otherwise lawful actions as long as it doesn’t coerce individuals into violating their religious beliefs.
“It can be very difficult with the precedent that the court’s required to apply to prevail on those types of challenges under the First Amendment or under RFRA as it’s been interpreted within the Ninth Circuit,” Whiteman Runs Him said, referring to the Religious Freedom Restoration Act.
Court Battles
The Supreme Court “kind of set this stage for a really narrow interpretation of religious freedom claims brought by tribes,” said Monte Mills, director of the Native American Law Center at the University of Washington. “That has been a significant barrier for tribal religious freedom claims ever since.”
“The United States has a long history of pursuing Indian land for federal goals,” said Beth Margaret Wright, a Native American Rights Fund staff attorney. The key problem with the 1988 decision is “that sentiment has carried over into legal precedent.”
The Ninth Circuit applied the justices’ logic in a 2008 en banc decision over the use of artificial snow for skiing at an Arizona sacred site, and again in Apache Stronghold’s challenge of the Oak Flat land transfer.
The nonprofit tribal rights group appealed a district court loss in 2021 under RFRA and the Free Exercise Clause, but the Ninth Circuit in May 2024 ruled the transfer couldn’t be considered a “substantial burden on religious exercise.”
On top of court precedent, there’s a congressional obstacle. The Southeast Arizona Land Exchange and Conservation Act of 2013 mandated the land transfer to Resolution Copper Mining LLC, a foreign-owned company backed by
“If we’re talking about the First Amendment or the Religious Freedom and Restoration Act, we’re still hindered by the fact that the federal government maintains that this is their land and they can do what they want,” said Wright.
The exchange law “in some ways made this situation unique from other challenges that tribes have brought around sacred sites,” said Mills.
Live Cases
Despite the losses, the Apache Stronghold case hasn’t been completely stamped out.
The group is waiting on the Supreme Court to act on its request to vacate the high court’s initial cert denial and send the case back to the Ninth Circuit to reconsider through the lens of the court’s recent decision in another religious freedom case.
The Supreme Court in June ruled in favor of parents who wanted their children exempt from lessons involving books that mention sexuality and gender, finding they had suffered a burden to their religious exercise.
“A religious freedom claim, especially with the current Supreme Court, has a pretty good shot,” said Mills. “But when it comes to tribes and their claims on public lands, it has been a very, very difficult uphill battle.”
The June decision prompted both Apache Stronghold’s recent request, and a July suit filed by a group of Apache women.
They argued “the destruction of Oak Flat violates the First Amendment right of Apache parents to direct the religious upbringing of their children,” also including National Environmental Policy Act and National Historic Preservation Act claims.
The US has asked the appeals court to consolidate the challenge with two others from the Inter Tribal Council of Arizona Inc. and San Carlos Apache Tribe.
Those suits also invoke a combination of religious and environmental claims, and were able to secure a temporary order from the Ninth Circuit blocking the land transfer.
Paths Forward
Not all relevant court opinions have disregarded the Oak Flat religious arguments.
Justice Neil Gorsuch in his dissent of denying Apache Stronghold’s petition said it was a “grave mistake” for the high court not to hear the case.
“Just imagine if the government sought to demolish a historic cathedral on so questionable a chain of legal reasoning,” he wrote.
Gorsuch asserted “our country’s commitment to religious freedom is not only through upholding religious freedom rights of dominant religious practices, but unpopular religious practices,” said NARF’s Wright.
A remand to the Ninth Circuit would be “the best case scenario,” Whiteman Runs Him said.
“We need to see recognition that the free exercise rights of Native Americans can be burdened by federal land management decisions,” she said.
A completed land transfer would shift ownership from the government to a private entity, limiting legal avenues, said Mills.
There could be litigation options through the “Clean Water Act, Clean Air Act, or even sort of permitting requirements that come into play,” but “private actors aren’t subject to the constitutional restrictions like the First Amendment or the Religious Freedom Restoration Act,” he said.
“If the land is transferred to Resolution Copper, it fundamentally changes the arrangement, and you can’t really get relief,” said NARF senior staff attorney Jason Searle.
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