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an encampment belonging to protesters in the Oak Flat area of Superior, Arizona, shown in 2015
This June 15, 2015, photo shows an encampment belonging to protesters in the Oak Flat area of Superior, Arizona. In 2014, Congress approved the transfer of Oak Flat to Resolution Copper Mining. (AP file photo)

Supporting case for sacred land

St. Thomas scholar, local attorneys back tribes in Arizona mine dispute

A dispute in Arizona between Indigenous people and mining interests has drawn strong interest from the Religious Liberty Clinic at the University of St. Thomas School of Law.

The full 9th U.S. Circuit Court of Appeals next month will hear an appeal seeking to prohibit transfer of land considered sacred by several tribes, a case clinic director Thomas Berg says is “probably the most important Native American religious liberty case in 15 years.”

The case, Apache Stronghold v. United States of America, arises out of a dispute over Oak Flat, a part of the Tonto National Forest in southeastern Arizona. The federal government owns the land. Listed on the National Register of historic places, it has received government protection for a long time.

However, it happens to be the site of a large, untapped copper deposit. This discovery was made in 1995. In 2014, as part of the National Defense Authorization Act, Congress approved the transfer of Oak Flat to Resolution Copper Mining. Resolution intends to build a copper mine that is 1,100 feet deep and nearly 2 miles wide.

Transferring the land would mean destroying a sacred place for the Apache people, as well as the Zuni, Yavapai, O’odham and Hopi tribes, according to Apache Stronghold, a nonprofit organization that preserves and protects Indigenous sacred sites. Apache Stronghold argued that the land transfer violated the Religious Freedom Restoration Act (RFRA).

The RFRA was passed in 1993 and was designed to ensure that religious liberty is protected by placing a heightened standard of review on government action that “substantially burdens” an individual’s religious exercise. In its legal brief, Apache Stronghold wrote that the land was “the direct corridor to their Creator and the site of numerous essential religious ceremonies that cannot take place anywhere else.”

Apache Stronghold sought a temporary restraining order. It did not succeed at the district court level and has since appealed to the 9th Circuit. After a divided ruling from a 9th Circuit panel, the court has agreed to hear arguments en banc.

St. Thomas’s Religious Liberty Clinic writes appellate briefs for major cases involving religious liberty. Although it is a Catholic university, the clinic has filed briefs in support of religious freedom for all faiths.

An amicus brief has been filed on behalf of five leading religion law scholars: Berg, Alan Brownstein (University of California-Davis), Angela Carmella (Seton Hall University), Ronald Colombo (Hofstra University), and Michael Perry (Emory University). Two attorneys served as co-counsel on the brief — Thomas Wheeler, associate at Fredrikson and Byron, and Miles Coleman, partner at Nelson Mullins. Two St. Thomas law students, Annika Johnson and Margaret Severson, contributed to the brief’s drafting.

“As a country grounded in religious freedom, it is important for Indigenous people to know that their religious practice — even if they are a minority religious group — is protected,” said Wheeler. “Moreover, there is no better way to uphold the basic American tenant that persons have the right to be free from government action that prevents or burdens religious practice than by protecting a type of religious practice that extends back to the founding of America and beyond.”

“This case is vital to Native American practices, and our clinic supports strong religious liberty for all faiths,” Berg said. “And the scholars who joined this brief as amici have expertise in the background and 30-year history of the Religious Freedom Restoration Act (RFRA); they explain why the 9th Circuit’s narrow definition of a ‘substantial burden’ undermines both the text and several important applications of that statute.”

In the brief, St. Thomas urges the court to look at the plain, ordinary meaning of “substantial burden.” It encouraged the court to look at how “substantial burden” is defined in the Religious Land Use and Institutionalized Persons Act, the sister statute to the RFRA. Adopting this less restrictive, more straightforward definition, the brief maintains, would protect religious exercise, especially for those whose religious exercise is at the mercy of the government.

“[The] government controls access to the resources necessary for the practices of the faith. The Apaches and other Native American worshippers are in that position,” the brief states.

“[I]f destruction of historic, vital sites by blowing out a large crater is not a ‘substantial burden,’ the term has relatively little meaning,” Berg said.

This brief is far from the only one submitted in this case. Groups such as the Jewish Coalition for Religious Liberty, the International Society for Krishna Consciousness, the Sikh Coalition, and the Church of Jesus Christ of Latter-day Saints, all filed amici briefs. While these groups may seem strange bedfellows, they all believe that this ruling could have impacts on religious liberty beyond the Indigenous tribes.

Indeed, victory in this case would affect the Native American tribes, but it could have more expansive impact.

“It could change the legal test used throughout the Ninth Circuit, which likely has far more sacred sites on federal land than any other part of the country,” Berg said.

Additionally, groups such as the Religious Liberty Clinic at St. Thomas are concerned that the current test would harm other religious groups beyond Indigenous worshippers. “The appeals court’s narrow test would bar other claims that Congress clearly meant RFRA to cover, including religious objections to autopsies of family members, prisoner claims for access to religious resources, and congregations’ claims to be able to build or expand houses of worship,” Berg said.

“Religious liberty has too often been a polarized issue in recent years, which hurts religious liberty as a principle and contributes to broader polarization. One way to combat that is to protect religious liberty strongly for all faiths,” Berg said.

Oral argument for the case will be heard the week of March 20.

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