SAN FRANCISCO – On June 24, the U.S. Ninth Circuit Court of Appeals ruled the Oak Flat land exchange could proceed. In 2014, the U.S. Congress brokered this land exchange which included Oak Flat.
As The Wild Hunt has previously reported on the proposed land swap, the federal government would exchange lands with Resolution Copper which is owned by Rio Tinto. The type of copper mining that would be employed at Oak Flat is known as “block caving,” a process that opponents say leave behind a sinkhole and potentially pollutes groundwater. The end result is that it would “swallow” the sacred site.
A video produced in 2015 highlights both the cultural and physical impacts of mining, and block caving.
Once gone, the Apache and others would lose parts of their traditional religion. The Apache and other tribes of the U.S. Southwest hold “Chi’chil Bildagoteel,” the Apache name for Oak Flat, to be sacred.
The case will head to the U.S. Supreme Court by September 22.
The Ninth Circuit Court of Appeals ruled that the loss of Oak Flat would not present a substantial burden to the Apache religion. This case has several complexities.
First, Oak Flat lies outside the boundaries of Apache territory. Thus, the Apache lack legal authority over Oak Flat. Before the land exchange, Oak Flat had been part of federal land in the Tonto National Forest.
Second, the Becket Fund for Religious Liberty is defending the Apache. Becket’s defense rests on claims of “religious liberty.” That legal theory is more usually associated with Christian legal challenges.
Some prior “religious liberty” cases have challenged contraception requirements. Others have challenged mandates that adoption agencies serve LGBT+ people. The Becket Fund for Religious Liberty has argued some of these cases. This case, however, argues for an explicitly pluralistic religious liberty.
Oak Flat in Apache cosmology
Native News Online reported that former tribal chair of the San Carlos Apache, Dr. Wendsler Nosie, Sr. compared Oak Flat to Mount Sinai. He described it as “our most sacred site where we connect with our Creation, our faith, our families and our land.”
The National Catholic Reporter reported on the Apache cosmology embedded in Oak Flat. In Apache cosmology, the Ga’an act as guardians or messengers between humans, and the creator, Usen. The Ga’an dwell in Chi’chil Bildagoteel/Oak Flat.
The case before the Ninth Circuit
The website Native News Online reported that Apache Stronghold filed this action to protect religious access to Oak Flat. They argued that this land exchange would violate the Religious Freedom Restoration Act (RFRA). The Ninth Circuit in a 2 to 1 decision ruled that the land transfer does not violate RFRA.
Judge Carlos Bea wrote the majority decision, “The Department of Agriculture will simply transfer ownership of a plot of government land to Resolution Copper, and the Land Exchange does not coerce the Apache to abandon their religion by threatening them with a negative outcome.”
In her dissent, Judge Marsha Berzon wrote that the transfer would “make the site inaccessible and eventually destroy it, objectively preventing the Apache from holding religious ceremonies there.”
Becket vice-President Luke Goodrich said, “If anything violates the free exercise of religion, it is the complete destruction of a sacred site that ends religious practices forever.”
The Navajo-Hopi Observer reported that Bea limited violations of RFPA to two situations.
In the first situation, the government would have to force “individuals to choose between following the tenets of their religion and receiving a government benefit.”
In the second situation, the government would have to coerce a person “to act contrary to their religious beliefs by threat of civil or criminal sanctions.”
He acknowledged that the loss of Oak Flat would make it more difficult for the Apache to practice their religion. He said it would not force them to act contrary to their beliefs. Bea said this would be true, even worship at Oak Flat becomes impossible.
This argument privileges beliefs over practice, implying a bias in favor of certain religions.
The response from Apache Stronghold
On June 24, 2022, Apache Stronghold issued a press release in response to the ruling from the Ninth Circuit. They stated that they and their coalition would appeal that decision to the U.S. Supreme Court. Their coalition consists of Apache, other Native peoples, and non-Native allies.
Nosie described Oak Flat as “a place of healing that has been sacred to us since long before Europeans arrived on this continent. My children, grandchildren, and the generations after them deserve to practice our traditions at Oak Flat.”
Other tribes besides the Western Apache go to Oak Flat to “gather medicinal plants, visit sacred springs, and conduct essential ceremonies like the coming-of-age Sunrise Ceremony for Apache women—practices which cannot happen anywhere else.”
Nosie said, “A sacred site, Oak Flat, will be totally lost, but the court’s view is that the government has no control or fault in this happening and that it will not affect the Apache religion … It makes you aware that the U.S. Government’s untold rule is: Because you are Indian and we control you and the land you live on, we can do as we wish even if it steps on your religion or sacred sites and of course we will not mention any of those truths in making decisions that affect you and your future children. That sounds about like all the lip service we have heard our entire lives and the lives of our ancestors. So, of course, we are going to appeal to the Supreme Court to see if they will support our fight for the survival of our religion, and whether our religious rights mean anything to the Judges on the highest Court in the United States. Our situation currently is compared to prisoners controlled by the Government. Are we still prisoners of war? In reality, they have just attached nicer names than “prisoners of war” to us and to our treatment by the U. S. Government.”
Tribes lack legal control of sacred sites
AZCentral reported that many tribes lack legal control of their sacred sites. Some are on private property.
Emory oak grove at Oak Flat, AZ – Image credit: Copyright © 2020 Elias Butler Photography All Rights Reserved – CC-BY-SA-4.0
Shannon O’Loughlin, a Choctaw, and CEO of the Association on American Indian Affairs spoke with AZCentral. She said, “Our cultural heritage and sacred places should be treated with that same kind of protection holistically all across the country, not just on federal land.”
O’Loughlin mentioned sacred mounds in the Midwest and along the Mississippi. Non-Native people with legal title to those mounds have felt free to dig up and loot those mounds. She said, “Those states have treated those sites like they are their own cultural heritage instead of the Indigenous peoples around them.”
After the Biden administration issued an executive order on racial equity, Zuni Governor Val R. Panteah wrote to Biden.
Panteah wrote from a Native American perspective and said, “Without directly, foundationally, and restoratively confronting, and continually materially addressing and redressing geographical injustices of governmental and colonial-settler actions, programs, and procedures that have occurred — and continue to occur — over space and time, the Biden-Harris Administration … cannot sincerely, meaningfully, honestly, or effectively advance any reasonable levels or forms of equity and support for Native peoples … On the contrary, the Administration will simply perpetuate and reproduce ongoing injustices of ethnically cleansing Native peoples from Native lands.”
David Martinez straddles both worlds. An enrolled member of the Gila River Indian Community, who is Akimel O’odham and Hia Ced O’odham and an academic. Martinez teaches American Indian Studies at Arizona State University. Martinez described what happens when non-Natives “develop” a Native sacred site.
Martinez said, “If you put a road through a sacred site, then you put something that doesn’t respect that space as belonging to the spirits that dwell there.”
Native cultural rights advocates note that the presence of foreign objects can contaminate a Native site so much that many medicine people won’t return to the site. Martinez agreed, “They think it’s contaminated.”
A pluralistic religious liberty
The Becket Fund for Religious Liberty is representing Apache Stronghold, along with two other lawyers. They are challenging the decision of the Ninth Circuit.
In the past, Becket has represented the Little Sisters of the Poor. Becket challenged the contraception mandate in the Affordable Care Act (ACA) aka Obamacare.
They also represented Hobby Lobby. In that case, they argued that the religious rights of the owners of a for-profit business can be transferred to that for-profit business. Again the alleged violation was the contraceptive mandate in the ACA.
Becket’s clients were not only Christians. They represented Jewish Synagogues that challenged COVID 19 restrictions on gatherings. They won all three cases before the Supreme Court. Over the last ten years, they have won eight Supreme Court cases.
Becket defines their mission as protecting “the free expression of all faiths.” It considers “the religious impulse is natural to human beings; religious expression is natural to human culture. We advance that principle in three arenas—the courts of law, the court of public opinion, and the academy—both in the United States and abroad.”
Note, The Wild Hunt has previously reported on the Becket Fund for Religious Liberty.
On November 23, 2021, Christianity Today discussed the long-term impact of the legal concept of “religious liberty.”
The legal basis for this suit was the Religious Freedom Restoration Act (RFRA) of 1993. This law formed the legal underpinning of the Hobby Lobby and the Little Sisters of the Poor cases.
Christianity Today reported that “multiple Christian schools are facing lawsuits about whether the government can force them to employ teachers who reject the schools’ theological beliefs on human sexuality.”
The supreme court and what happens next
Conservative Justice Neil Gorsuch has twice defended Native American sovereignty. He did so in McGirt v. Oklahoma and again in Oklahoma v. Castro-Huerta. Both those cases involved the authority to prosecute criminal cases on tribal lands. The Oak Flat case involves neither criminal prosecution nor tribal sovereignty. It involves a real estate deal, brokered by the U.S. Congress. Neither of those cases shed any light on how Gorsuch would approach this case.
The Court’s conservative 6 to 3 majority already has a favorable view of “religious liberty.” It has used that theory in several decisions. This case may show whether it supports or rejects pluralistic religious liberty.
Apache Stronghold has a large number of videos that outline a variety of the aspects of the case, various protests, and how Chi’chil Bildagoteel is viewed and used by various tribes on their YouTube channel.
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