On April 25, 2024, the Tohono O’odham Nation, the National Congress of American Indians, the Arizona Intertribal Association, the Association on American Indian Affairs, and the National Association of Tribal Historic Preservation Officers filed an amicus brief urging all 29 justices at the U.S. Court of Appeals for the Ninth Circuit to rehearse Apache Fortress v. USA
The nonprofit Apache Stronghold initially brought the case to protect a sacred place the Apaches call Chí’chil Biłdagoteel, which translates into English as “Oak Flat,” from being transferred to a mining company, Resolution Copper. The Tribal Nation and Tribal Organization’s amicus brief states that a new hearing is exceptionally important because sacred places like Oak Flat are vital to the religious practices of many Tribal Nations. A final negative ruling will not only allow the destruction of Oak Flat, but will also have serious consequences for all tribal nations whose religious practices depend on sacred sites.
Tohono O’odham Nation Attorney General Howard M. Shanker sees a new hearing as an opportunity for the Ninth Circuit to correct previous legal interpretations. “Under current legal precedent, judges may decide that the total destruction of Oak Flat causes no ‘burden’ to Apache religious exercise. No burden, although Resolution Copper intends to explore the sacred site until tunnels beneath Oak Flat cause it to collapse into a crater two miles wide and 1,000 feet deep. No encumbrance, although mining ended the religious customs practiced in Oak Flat. No burden, even if the Western Apaches lost the ability to perform religious ceremonies at this sacred site and the opportunity to pass these teachings on to future generations,” Shanker said.
On March 21, 2023, in Apache Fortress v. USA, a panel of eleven en banc judges of the Ninth Circuit heard Apache Stronghold’s arguments to stop the federal government from transferring Oak Flat to Copper Resolution. Resolution Copper intends to mine Oak Flat until it collapses into a two-mile-wide crater. This will destroy the land-based religious practices of the Apaches at Oak Flat. The destructive mining technique that Resolution Copper plans to implement will also render the surrounding landscape that local communities call home unsuitable. The en banc panel considered whether the land transfer and subsequent mining would “substantially burden” Native Americans’ religious exercise under the Religious Freedom and Restoration Act (RFRA).
In March 2024, the en banc panel issued an extensive set of opinions, with a 6-5 majority opinion, denying that the Oak Flat land transfer constituted a “substantial burden” under RFRA. The slim majority written by Justice Collins reached its conclusion by rejecting the plain meaning of the term “substantial burden.” Instead, the Collins majority made its decision by adhering to a new theory of the term’s meaning that has no basis in precedent. In dissent, Judge Murguia strongly disagreed, concluding that plain meaning and common sense require the conclusion that the destruction of Oak Flat constitutes a “substantial burden” on Apache religious exercise for purposes of RFRA.
“The outcome of this case will have a drastic impact on the more than 400 tribal nations whose homelands and sacred sites fall under the jurisdiction of the Ninth Circuit,” said the Native American Rights Fund (NARF) Attorney Beth Margaret Wright.
Earlier this month, in response to the March 2024 decision, Apache Stronghold requested a review of the Ninth Circuit’s full list of twenty-nine judges. In a brief filed today, the Tohono O’odham Nation and four tribal organizations, represented by NARF, supported Apache Stronghold’s request for review by the Full Court.
“The Ninth Circuit can and should hold the United States accountable for protecting the religions and sacred places of Tribal Nations like Oak Flat,” said NARF Attorney Jason Searle.
About the author: “Levi \”Calm Before the Storm\” Rickert (Prairie Band Potawatomi Nation) is the founder, editor and publisher of Native News Online. Rickert received the 2021 Native Media Best Column award in the print/online category for a Native American Journalists Association. He serves on the advisory board of the Multicultural Media Correspondents Association. He can be reached at levi@nativenewsonline.net.
Contact: levi@nativenewsonline.net
