Amicus Brief Submitted: January 2023
The week of Jan. 10, 2023, the Tohono O’odham Nation, Tonto Apache Tribe, San Juan Southern Paiute, Association on American Indian Affairs, and the National Association of Tribal Historic Preservation Officers submitted an amicus brief in Apache Stronghold v. United States. The brief urges the U.S. Court of Appeals for the Ninth Circuit to recognize the protections of the Religious Freedom Restoration Act to prevent a foreign mining company, Resolution Copper, from destroying a sacred place the Apache call Chí’chil Biłdagoteel, which translates into English as “Oak Flat.” Tribal nations in the Southwest have held Oak Flat as sacred ceremonial ground since time immemorial.
“Every Tribe and Native organization listed on this legal document supports the Apache Stronghold organization in its effort to protect Oak Flat from destruction,” said Native American Rights Fund (NARF) Executive Director John Echohawk. “For Native American religion and culture to survive, Native people must be able to practice their way of life in sacred places. We ask the Ninth Circuit to apply the legal protections that will stop a corporation from defiling Oak Flat so that tribal religious practices may survive.”
The brief asks the Ninth Circuit to reverse the District Court’s denial of a preliminary injunction that would have stayed the land transfer of Oak Flat to Resolution Copper. If Resolution Copper is allowed to build its mine, the mine will effectively swallow Oak Flat into a massive crater. This will strip the Apache and other tribal nations of their ability to practice many of their religious ceremonies and traditions, all to serve the short-term economic interests of Resolution Copper. A negative ruling from the court would also threaten other sacred places moving forward.
“Tribal nations maintain deep connections and responsibilities to care for and protect their sacred places for their next generations. Tribal advocacy has long protected these sacred places and this brief makes clear that tribes will continue this fight,” said NARF Staff Attorney Beth Wright.
Colonization has dispossessed tribal nations of large portions of their traditional territories. As a result, many sacred places are now under the control of federal and private ownership. This has already strained the religious practices of tribes and tribal citizens, who depend upon access to the plants, animals, and natural resources in their sacred places.
“Land exchanges like the proposed transfer of Oak Flat to Resolution Copper threaten the culture and daily life of Native peoples who exercise land-based religious practices,” said NARF Staff Attorney Jason Searle.
NARF and Munger, Tolles & Olson, LLP represent the Tribes and Native organizations that submitted the amicus brief. Tribes have lived within, worshipped upon, and cared for Oak Flat and its surrounding area since time immemorial. It is important to protect Oak Flat for the tribal nations’ next generations.
Unfortunately, the court did not allow the amicus brief to be filed.
Oral Arguments March 21, 2023
On Tuesday March 21, 2023, the U.S. Court of Appeals for the Ninth Circuit heard oral in Apache Stronghold v. U.S. The Native American Rights Fund recognizes the critical importance of this case for tribal nations and their sacred places.
“A fine is a substantial burden, but here, the government is doing something far worse. Not just threatening fines, but authorizing the complete physical destruction of Oak Flat, barring the Apaches from ever accessing it again and ending their core religious exercises forever.”
-Becket Vice President and Senior Counsel Luke Goodrich, attorney for the nonprofit organization Apache Stronghold
Many tribal nations practice land-based religions and their ability to practice religious ceremonies, traditions, and ways of life depend on the protection of these places. The outcome of this case will have a drastic impact on the over 400 tribal nations whose homelands and land-based religions fall under the Ninth Circuit’s jurisdiction.
Amicus Brief Urging Rehearing: April 25, 2024
On April 25, 2024, the Tohono O’odham Nation, the National Congress of American Indians, the Inter-Tribal Association of Arizona, the Association on American Indian Affairs, and the National Association of Tribal Historic Preservation Officers filed an amicus brief urging all 29 Judges on the U.S. Court of Appeals for the Ninth Circuit to rehear Apache Stronghold v. U.S.
The nonprofit organization Apache Stronghold initially brought the case to protect a sacred place the Apache 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 amicus brief contends that a rehearing is exceptionally important because sacred places like Oak Flat are vital to many Tribal Nations’ religious practices. A final negative ruling will not only allow Oak Flat’s destruction but will bear grave consequences for all Tribal Nations whose religious practices depend upon sacred places.
Attorney General for the Tohono O’odham Nation Howard M. Shanker sees a rehearing as an opportunity for the Ninth Circuit to correct past legal interpretations:
“Under current legal precedent, judges can rule that the total destruction of Oak Flat causes no ‘burden’ on Apache religious exercise. No burden, even though Resolution Copper intends to mine the sacred place until tunnels underneath Oak Flat cause it to collapse into a crater two miles wide and 1,000 feet deep. No burden, even though the mining would end religious customs practiced at Oak Flat. No burden, even though the Western Apache would lose the ability to practice religious ceremonies at this sacred place and the opportunity to pass these teachings on to future generations,” said Shanker.
On March 21, 2023, in Apache Stronghold v. U.S., an eleven judge en banc panel of the Ninth Circuit heard Apache Stronghold’s arguments to block the federal government from transferring Oak Flat to Resolution Copper. Resolution Copper intends to mine Oak Flat until it collapses into a two-mile wide crater. This will destroy the Apache’s land-based religious practices at Oak Flat. The destructive mining technique Resolution Copper plans to deploy will also render unfit the surrounding landscape that local communities call home. The en banc panel considered whether the land transfer, and subsequent mining, would “substantially burden” Native American religious exercise under the Religious Freedom and Restoration Act (RFRA).
In March 2024, the en banc panel handed down a lengthy set of opinions with a bare 6-5 majority opinion denying that the land transfer of Oak Flat constitutes a “substantial burden” under RFRA. The thin majority written by Judge Collins, came to its conclusion by rejecting the plain meaning of the term “substantial burden.” Instead, the Collins majority reached its decision by adhering to a novel theory of the term’s meaning that has no basis in precedent. In dissent, Judge Murguia vigorously disagreed, finding that the plain meaning and common sense require finding that Oak Flat’s destruction constitutes a “substantial burden” on Apache religious exercise for purposes of RFRA.
“The outcome of this case will have a drastic impact on the over 400 Tribal Nations whose homelands and sacred places fall under the Ninth Circuit’s jurisdiction,” said Native American Rights Fund (NARF) Staff Attorney Beth Margaret Wright.
Earlier this month, in response to the March 2024 decision, Apache Stronghold requested a review by the full slate of twenty-nine Ninth Circuit 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 to protect Tribal Nations’ religions and sacred places, like Oak Flat,” said NARF Staff Attorney Jason Searle.
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