Today Notre Dame Law School’s Lindsay and Matt Moroun Religious Liberty Clinic filed an amicus brief in the United States Supreme Court in support of robust protection for the religious freedom of Native Americans to worship at sacred sites. The Clinic’s brief urges the Court to take up review of the Ninth Circuit’s decision in Apache Stronghold v. United States and to protect Oak Flat, an indigenous sacred site in Arizona.
Oak Flat, known by the Apache people as Chi’chil Biłdagoteel, contains hundreds of Indigenous archaeological sites and burial grounds. In 2014, Congress directed the federal government to transfer the land to Resolution Copper, a foreign-owned mining company. The planned mining operation threatens to destroy Oak Flat, turning the sacred site into a massive crater.
Apache Stronghold, a coalition of Apaches and others seeking to preserve Oak Flat, sued the government to stop the transfer. They argue that destruction of their sacred site would violate the First Amendment and the Religious Freedom Restoration Act (RFRA), a federal law that offers heightened protections for religious exercise. RFRA provides heightened protection for religious practices by generally prohibiting the government from “substantially burdening” religious exercise.
Earlier this year, the Ninth Circuit sitting en banc issued a splintered opinion holding that RFRA does not protect the Apache’s religious exercise because, in the majority’s view, the destruction of the site is not a “substantial burden” under the statute. Unless corrected by the Supreme Court, that decision clears the way for the destruction of Oak Flat. The Clinic’s brief urges the Supreme Court to review the Ninth Circuit’s erroneous decision, which provides a misguided interpretation of RFRA that imposes a harmful double standard for sacred worship sites on government-controlled tribal lands.
“The proposed mine would devastate Apache sacred land and permanently destroy the Apache people’s ability to continue centuries old spiritual practices,” said Professor John Meiser, director of the Lindsay and Matt Moroun Religious Liberty Clinic. “RFRA is meant to be a bulwark against threats to religious exercise like this, and the Court must ensure that is just as true for Indigenous groups as it is for all others.”
As the Clinic’s brief makes clear, RFRA, properly interpreted, affords broad protection to the religious practices of Indigenous people. The brief asks the Court to confirm that the plain and commonsense meaning of “substantial burden” includes situations where the ability to exercise one’s religion is completely destroyed. Even though courts uniformly agree that inconvenience or added expense may impose a substantial burden, the Ninth Circuit bizarrely concluded that the destruction of Oak Flat cannot. The brief also demonstrates that the Ninth Circuit’s decision uniquely harms Indigenous religious practices and perpetuates a lamentable history of government disregard for Indigenous people.
“The Ninth Circuit’s strained interpretation of RFRA idiosyncratically limits protections for land-based faiths and Indigenous sacred sites,” said Meredith Holland Kessler, staff attorney for the Clinic. “The destruction of Oak Flat, which will render impossible the Apaches’ ability to exercise their religion, is plainly an impermissible substantial burden under federal law.”
The Clinic represents amici curiae Apache Elder Ramon Riley, Professor Michalyn Steele (a federal Indian law scholar), and several Native American rights and cultural heritage organizations: the International Council of Thirteen Indigenous Grandmothers, the MICA (Multi-Indigenous Community Action) Group, Xanapuk Land Water and Culture Conservancy Inc., American Indian Movement Cleveland Autonomous Network (Cleveland AIM), People of Red Mountain, and Confederated Villages of Lisjan Nation.
Notre Dame Law students Alicia Armstrong, Hadiah Mabry, and Nicholás Munsen assisted with the brief. “The Ninth Circuit’s decision leaves countless Indigenous groups dependent on the government’s good will to continue their age-old religious practices,” said Alicia Armstrong, a third-year law student in the Clinic. “These groups, whose sacred land is under government control, are entitled to the same protection afforded other religious practices.”
“Any burden on religious practice strikes at our most fundamental right—the right to live as our beliefs require us,” added Nicholás Munsen, a third-year law student in the Clinic. “But the destruction of Oak Flat is particularly severe. Such a result is unconscionable, intolerable, and, as our brief shows, unlawful.”
The Clinic has long supported Apache Stronghold’s effort to protect Oak Flat. Read more about our work here.
About the Lindsay and Matt Moroun Religious Liberty Clinic
The Lindsay and Matt Moroun Religious Liberty Clinic is a teaching law practice that educates, forms and prepares Notre Dame law students to become the rising generation of religious liberty leaders by training students in the practice of the law as they defend religious freedom for all people.
Under the guidance of law school faculty and staff, students work on a broad variety of legal matters to promote religious freedom on behalf of individuals and organizations of all beliefs—both domestically and abroad. The clinic represents clients from all faith traditions to promote not only the freedom for people to hold religious beliefs but also their fundamental right to express those beliefs and to live according to them. Learn more about the work of the Clinic here.