Substantial burdens and sacred lands

A specific area of federal land within a National Forest has been held sacred by the Western Apache for at least a millennium--since long before the United States existed. The site is used by the Western Apache for religious ceremonies and is central to their religious belief system.

The federal government plans to transfer this property, which sits atop a huge deposit of copper ore, to a private mining company. The mining company's extraction plans will result in the area becoming a two-mile wide crater, more than 1000 feet deep.

Will the government's planned transfer of this land to a mining company, resulting in its destruction, "substantially burden" the free exercise of the Western Apache's religion under the Free Exercise Clause of the First Amendment or the Religious Freedom Restoration Act (RFRA)?

These were the primary questions the Ninth Circuit addressed in Apache Stronghold v. United States, 101 F.4th 1036 (9th Cir. 2024). The trial court had denied Apache Stronghold's motion for a preliminary injunction. That decision was affirmed by a three-judge panel of the Ninth Circuit. The plaintiffs then sought and obtained en banc review before an 11-member panel.

The Ninth Circuit issued a lengthy en banc opinion on March 1, 2024, almost a year after hearing argument, and issued a slightly amended opinion on May 15, 2024. A sharply divided panel affirmed the trial court and denied the preliminary injunction. On May 15, 2024, the court also denied a petition for a rehearing en banc before the full court on the same date.

The decision is hundreds of pages long, with a number of concurrences and dissents. It is also, in my view, worth wading through, given the issues presented. The case presents an ongoing debate regarding the scope of RFRA, and what types of burdens on religious practice should be deemed "substantial burdens" under that statute: As readers of legal news will be aware, religious liberty has been a regular topic at the U.S. Supreme Court over the past few terms.

The case also presents difficult issues of how to address claims by Native Americans for continued access to what is now federal land, when that access is for religious practices central to belief systems they have maintained since time out of mind.

I. Background

The facts were not in dispute. The dispute centered on an area called Oak Flat, a 6.7-square-mile site in Tonto National Forest, in Arizona. The record from the trial court established that the Western Apache tribes represented by the nonprofit corporation Apache Stronghold had used the Oak Flat area for religious practice for at least a millennium. Apache Stronghold, 101 F.4th at 1044. "The Western Apache believe that Oak Flat is a sacred place that serves as a direct corridor to speak to their creator" and that "they cannot have this spiritual connection with the land anywhere else on Earth." Id.at 1045 (cleaned up). The record also established that "Oak Flat is the only area with these unique [spiritual] features, making it crucial to Western Apache religious life. Id.

Oak Flat also happens to sit on top of the third-largest deposit of copper ore in the world. Id. at 1045. "Believing the copper beneath the Oak Flat to be a significant asset, ... Arizona's congressional legislation drafted legislation to compel the Government to transfer Oak Flat and its surroundings to Resolution Coper, a private mining company." Id. The bill was ultimately passed as a rider to a defense authorization act in 2015. Id.

It was also undisputed that as a result of this transfer and planned extraction, using shafts, tunnels, and explosives, the ground above the ore would collapse inward over the course of the mining project. Id. at 1047. At the end of the project, which was projected to last for 41 years, "[t]he resulting subsidence will create a large surface crater, which the Forest Service estimates will span approximately 1.8 miles in diameter and involve a depression between 800 and 1,115 feet." Id. That is to say, the Oak Flat area would essentially be rendered unusable by the Western Apache.

II. Free Exercise

The Free Exercise Clause of the First Amendment provides that "Congress shall make no law . . . prohibiting the free exercise [of religion] . . . ." U.S. Const. amend. I.

The majority opinion in Apache Stronghold concluded that the plaintiff's Free Exercise claim was foreclosed under the Supreme Court's decision in Lyng v. Northwest Indian Cemetery Protective Association, 486 U.S. 439 (1988). In Lyng, the Court considered "whether the . . . Free Exercise Clause prohibit[ed] the Government from permitting lumber harvesting in, or constructing a road through, a portion of a National Forest that has traditionally been used for religious purposes by members of three American Indian tribes in northwestern California." Id. at 442-43. The Court concluded that it did not.

Reviewing the Court's Free Exercise cases, the Lyng Court found that the proposed development in the federal land would not substantially burden the tribes' religious practice because "the affected individuals [would not be] coerced by the Government's actions into violating their religious beliefs" and the "governmental action [would not] penalize religious activity by denying any person an equal share of the rights, benefits, and privileges enjoyed by other citizens." Id. at 449.

"[T]his Court has repeatedly held that indirect coercion or penalties on the free exercise of religion, not just outright prohibitions, are subject to scrutiny under the First Amendment. . . . This does not and cannot imply that incidental effects of government programs, which may make it more difficult to practice certain religions but which have no tendency to coerce individuals into acting contrary to their religious beliefs, require government to bring forward a compelling justification for its otherwise lawful actions."

Lyng, 485 U.S. at 450-51 (citation omitted). The Lyng court suggested that allowing claims such as the tribes' to succeed would open up the floodgates to challenges to all manner of government activities. Id. at 452.

The Apache Stronghold majority found that the case before it was indistinguishable from Lyng:

"Here, just as in Lyng, the Government's actions with respect to publicly owned land would interfere significantly with private persons' ability to pursue spiritual fulfillment according to their own religious beliefs, but it would have no tendency to coerce them into acting contrary to their religious beliefs. And just as with the land use decisions at issue in Lyng, the challenged transfer of Oak Flat for mining operations does not discriminate against Apache Stronghold's members, penalize them, or deny them an equal share of the rights, benefits, and privileges enjoyed by other citizens. . . . Under Lyng, Apache Stronghold seeks, not freedom from governmental action prohibiting the free exercise of religion, . . . , but rather a religious servitude that would uniquely confer on tribal members de facto beneficial ownership of a rather spacious tract of public property. . . . Under Lyng, Apache Stronghold's Free Exercise Clause claim must be rejected."

Apache Stronghold, 101 F.4th at 1051-52 (cleaned up) (citations omitted).

The Apache Stronghold majority rejected the plaintiff's attempts to distinguish Lyng, including the plaintiff's argument that the transfer to the mining company would destroy the site, which would have the unavoidable effect of preventing the tribe's religious exercise--in effect prohibiting that exercise: "[I]t is not enough under Lyng to show that the Government's management of its own land and internal affairs will have the practical consequence of 'preventing' a religious exercise. Indeed, Lyng explicitly rejected that broader notion of 'prohibiting' religious exercise, concluding that it was foreclosed by [precedent]." Id. at 1053.

This portion of the Court's reasoning did appear, in this reader's view, to somewhat wave away the plaintiff's argument that bringing on the complete destruction of the Oak Flat site would have the practical effect of prohibiting the tribe's religious practice: Yes, the Western Apache would theoretically be free to continue practicing, but the government's action would have rendered that practice impossible on the ground, so to speak. The semantic distinction between "prohibiting" and "preventing" that the majority relies on appears to be a relatively thin reed on which to rest this conclusion.

III. RFRA

The Court turned next to the plaintiff's claim that the transfer would violate the tribe's rights under RFRA. RFRA was enacted in 1993 in the wake of Employment Div., Dept. of Human Resources of Oregon v. Smith (1990) 494 U.S. 872 ("Smith"). In Smith, the Supreme Court issued a narrowed reading of the Free Exercise clause, holding that "the right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that [her] religion prescribes (or proscribes)." Id. (cleaned up). In Smith, the law at issue was a generally applicable criminal law prohibiting the use of peyote. The plaintiffs had been denied unemployment benefits after being fired for consuming peyote as part of a religious ceremony.

The Smith Court found that the generally applicable criminal law at issue in Smith did not implicate free-exercise concerns, and therefore did not trigger higher scrutiny, requiring the state to demonstrate a compelling interest in enforcing the law in these circumstances.

The Smith decision caused much political consternation in the other branches of government, and Congress responded by promptly passing RFRA. "As stated expressly in § 2 of RFRA, Congress's primary purpose in enacting the Act was to restore the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398 [1963] . . . and Wisconsin v. Yoder, 406 U.S. 205 [1972] . . . and to guarantee its application in all cases where free exercise of religion is substantially burdened. 42 U.S.C. § 2000bb(b)(1)." Apache Stronghold, 101 F.4th at 1058 (cleaned up). The Act's stated purpose was "based on RFRA's express finding that laws 'neutral' toward religion may burden religious exercise as surely as laws intended to interfere with religious exercise." Id. (cleaned up). "Section 3(a) of RFRA establishes the general rule that government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability." Id. (cleaned up).

a. "Substantial Burden" under RFRA

Notably, RFRA does not define the term "substantial burden." The majority opinion in Apache Stronghold noted that the specific purpose set out in RFRA--to overrule Smith--meant that courts should look to "the backdrop of the vigorous debate between Justice Scalia and Justice O'Connor in Smith; both of their opinions used variations of the phrase 'substantially burden' in describing the pre-Smith framework for evaluating Free Exercise Claims." Id. at 1059. That is to say, in the majority's view, the effect of RFRA was to reinstate the substantial burden standard set out in Justice O'Connor's dissent in Smith: "RFRA unmistakably sought to enshrine, by statute, the basic principles reflected in the pre-Smith framework for applying the Free Exercise Clause that is described in those opinions, and that framework clearly includes Lyng." Id.

The court observed that "Justice O'Connor's separate opinion in Smith confirms that the 'substantial burden' rule established in the Court's caselaw is consistent with, and does not abrogate, the Court's decision in Lyng . . . ." Id. Ultimately, in the Court's view, the passage of RFRA did not result in the analysis under RFRA in this case being meaningfully different than the analysis under the Free Exercise Clause: The government's actions did not result in a prohibition or compulsion, and therefore, the government's actions did not have the effect of "prohibiting" or "substantially burdening" the religious practice at issue:

"Justice O'Connor's Smith concurrence contained a detailed explication of what counts as a cognizable burden under the Court's then-existing caselaw . . . . As she explained, such burdens may be imposed directly through laws that prohibit or compel specific practices; they may be imposed indirectly through laws that, in effect, make abandonment of one's own religion or conformity of the religious beliefs of others the price of an equal place in the civil community; or they may involve benefit conditions that put substantial pressure on an adherent to modify his behavior and to violate his beliefs."

Id. at 1060 (cleaned up) (emphasis in original).

Ultimately, the majority opinion concluded that "[a]s a decision about the scope of 'prohibiting,' Lyng defines the outer bounds of what counts as a cognizable substantial burden imposed by the government. . . . When Congress copied the 'substantial burden' phrase into RFRA, it must be understood as having similarly adopted the limits that Lyng placed on what counts as a governmental imposition of a substantial burden on religious exercise." Id. at 1061.

A majority of the court joined in finding that Apache Stronghold was unlikely to succeed on its claims and could not show that it was entitled to a preliminary injunction.

b. Judge Murguia's Dissent

In the primary dissenting opinion, Judge Murguia noted that nothing in RFRA defined the term "substantial burden," and that nothing in the statute suggested that the term was a term of art or somehow frozen in time or ossified in the form set out in Justice O'Connor's concurrence in Smith or in the Supreme Court's pre-Smith cases. Apache Stronghold, 101 F.4th at 1135-38 (Murguia, J., dissenting). The dissents noted that the term "substantial burden" was not used in either Sherbert or Yoder, weakening the majority's argument that RFRA somehow established a "substantial burden" standard based on those cases. Id. at 1137.

Instead of trying to discern how "substantial burden" was purportedly constrained by Sherbert and Yoder, the dissent explained, the court should look to a plain-language dictionary definition of "substantial burden." Id. at 1135-36. Under any reasonable understanding of that term as used in ordinary speech, in the dissent's view, the destruction of Oak Flat would result in a "substantial burden" on the Western Apache's religious practices. Apache Stronghold, 101 F.4th at 1135-36, 1145 ("[W]here the government prevents a person from engaging in religious exercise, the government has substantially burdened the exercise of religion. The plain meaning of RFRA clearly reaches such instances.").

Judge Murguia's dissent is, to this reader, persuasive. A reasonable reading of RFRA is that the statute intended to reinstate the "compelling interest" test set out in Yoder and Sherbert; RFRA says nothing about the "substantial burden" standard from those cases or from Smith. "Substantial burden" does appear to be term that lends itself to a plain-meaning construction. Judge Murguia noted that the Supreme Court had looked to the plain meaning of other undefined terms in RFRA. Id. at 1136.

The dissent also noted that the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) also uses the term "substantial burden" and, like RFRA, does not define the term; unlike RFRA, RLUIPA does not specifically refer to Yoder or Sherbert. Id. at 1139. The Ninth Circuit has given the term "substantial burden" under RLUIPA a plain-meaning construction. Id. All of this suggests that the same term, used by Congress in two statutes within Title 42, should be given the same construction. Id. at 1140 ("When Congress uses the same language in two statutes having similar purposes, this Court starts with the presumption that Congress intended that text to have the same meaning in both statutes.") (cleaned up) (citation omitted).

Given all of this, in the dissent's view, the term "substantial burden" should be read like any other statutory language and be given its plain meaning. Under such a plain meaning, in the dissent's view, the utter destruction of Oak Flat would impose a "substantial burden" on the religious practices of the Western Apache.

IV. Conclusions

Archaeologists now believe the first humans crossed the land bridge of Beringia into North America at least 15,000 to 20,000 years ago--thousands of years before Columbus reached the Caribbean. Sara Kaplan, Continent's oldest spear points provide new clues about the first Americans, Washington Post, October 24, 2018. Anthropologists believe that the Apache migrated from Alaska, western Canada, and the Northwest Pacific Coast to what is today the Southwest United States between AD 1400 and 1500. National Park Service: Chiricahua National Monument Arizona, Apache Before 1861 (Jul. 30, 2024), https://www.nps.gov/chir/learn/historyculture/pre-apache-wars.htm.

Apache Stronghold, like Lyng before it, presents a situation where the claims presented are in many ways incommensurate with the types of claims that are readily cognizable through our constitutional and statutory framework. These kinds of claims are unique for several reasons.

First, the relationships of Apache and other Native American groups to the lands that they have inhabited for thousands of years--relationships involving spiritual connections to specific sites--are difficult to wedge into the conceptual boxes of modern Free Exercise doctrine in the U.S. As Justice Brennan noted in dissent in Lyng, "[this case] represents yet another stress point in the longstanding conflict between two disparate cultures--the dominant Western culture, which views land in terms of ownership and use, and that of Native Americans, in which concepts of private property are not only alien, but contrary to a belief system that holds land sacred." Lyng, 485 U.S. at 472 (Brennan, J., dissenting). Indeed, some legal commentators have suggested that groups like the Western Apache could attempt to ground their claims instead in property-law claims, such as prescriptive easements. See Patrick E. Reidy, Sacred Easements 110 Va. L. Rev. 833, 841 (2024) ("Where Native American religious claimants can demonstrate sacred land use that has persisted through dispossession, that flows from intergenerational traditions uniting past and present, their religious practice at sacred sites gives evidence of more than free-exercise rights. They affirm the possibility of use rights in sacred sites--a kind of 'sacred easement' over government land.").

Second, lurking in the background of these cases is the uncomfortable knowledge that lands such as the public lands at issue in Apache Stronghold and Lyng were lands that the United States took from Native Americans through coercion, force, and broken treaties. See, e.g., S. Lyman Tyler, A History of Indian Policy 54-88 (1973). As Judge Fletcher observed in dissent in Navajo Nation, when addressing a similar Free Exercise claim,

"the majority justifies its holding on the ground that what it calls 'public park land' is land that 'belongs to everyone.' . . . . There is a tragic irony in this justification. The United States government took this land from the Indians by force. The majority now uses that forcible deprivation as a justification for . . . refusing to recognize . . . a substantial burden on the Indians' exercise of their religion."

Navajo Nation v. United States Forest Service, 535 F.3d 1058, 1114 (9th Cir. 2008) (Fletcher, J., dissenting); see also Lyng, 485 U.S. at 453 ("Whatever rights the Indians may have to the use of the area, however, those rights do not divest the Government of its right to use what is, after all, its land.") (emphasis in original); Johnson v. M'Intosh, 21 U.S. 543, 588 (1823) ("Conquest gives a title which the Courts of the conqueror cannot deny . . . .").

The history of dispossession of Native Americans by the United States presents a kind of moral argument that existing constitutional and statutory frameworks may be ill equipped to address. Indeed, Judge VanDyke, concurring in Apache Stronghold, acknowledged the moral argument looming over the technical disputes over statutory construction in the case, though he ultimately dismissed it: "Under this 'reconceptualized' and 'alternative' theory of RFRA [presented by amici], Native Americans have a special historical and religious need for government-owned land because that land once belonged to them." Apache Stronghold, 101 F.4th at 1125 (VanDyke, J., concurring). Though acknowledging that this argument was "not . . . devoid of moral force," Judge VanDyke's conclusion was that this type of moral argument based on a history of dispossession is better addressed to Congress. Id.

It is worth noting in passing here that courts have long acknowledged the fraught history between the United States and the various Native American tribes in special judicial doctrines, such as the Indian canon of construction. See Confederated Tribes and Bands of Yakama Nation v. Klickitat County, 1 F.4th 673, 680 (9th Cir. 2021) ("We must give due weight to the Indian canon of construction, which dictates that treaty terms must be construed in the sense in which they would naturally be understood by the Indians. . . . The canon also instructs that Indian treaties are to be interpreted liberally in favor of the Indians, and any ambiguities are to be resolved in their favor.") (cleaned up) (citations omitted).

The rationale behind the Indian canon of construction would not likely apply to a reading of the Free Exercise Clause or RFRA, but it is worth considering what justice does require in cases like these.