Let’s take clear path back to protecting native religious freedom

There has always been tension between the use of public lands for (private) profit and the preservation of environmentally unique or sensitive areas. This tension is heightened by the fact that Tribes throughout the United States often view certain areas of land/places, not only as environmentally important, but as significant to their respective religious and cultural beliefs.

Regrettably, many judges appear to have an ethnocentric bias that bleeds into their “legal” analyses when it comes to the requisite balancing of profit versus the protection of (or at least respect for) place-based religions. Whatever the root cause, the federal courts have generally denied Native American religious beliefs the same protections afforded other, more convenient religions under the law.

We see this struggle playing out again in a case currently pending in the courts. On March 21, an en banc panel of the U.S. Court of Appeals for the Ninth Circuit will reconsider a case that pits a mining company’s interests over those of the Western Apache as well as other tribes in Arizona. It will be “reconsidered” because a three-judge panel of that same court already rejected the Apache’s religious claims in favor of the mine. The Court’s decision to rehear the case provides an opportunity to correct past legal interpretations of the Religious Freedom Restoration Act (“RFRA”) and to properly apply the law to, in pertinent part, protect Tribal Nations and peoples and their place-based religions.

Congress created RFRA to expand protections for the free exercise of religion to a broader range of faiths. In fact, RFRA was a response to a Supreme Court case in which protections, based on the Free Exercise Clause of the First Amendment, were denied to members of the Native American Church who used peyote for religious ceremonial purposes. Since RFRA’s passage, however, courts appear to have been defining RFRA narrowly by misapplication of a restrictive First Amendment analysis.

One important case that created bad RFRA precedent for Tribes was the en banc Ninth Circuit decision in Navajo Nation v. U.S. Forest Service. I represented a number of Tribes and environmental organizations in that case. In Navajo Nation, a majority of an en banc panel held that RFRA only protects one from being denied a governmental benefit or having a penalty imposed for practicing a religion. While this framework is often sufficient to protect mainstream religions, it is inherently insufficient to protect Native, place-based religions, which may be substantially burdened, and even destroyed, by the way governments dispose of sacred lands over which they have control. The Navajo Nation decision’s restrictive reading of a law meant to expand protections of religious exercise is both unjust and incorrect.

RFRA provides protections of religious exercise that are broader than protections under the First Amendment, as recognized in a recent Supreme Court case, Burwell v. Hobby Lobby. The Ninth Circuit has yet to adopt that proper reading of RFRA in the context of protecting Native, place-based religious practices.

This brings us back to the instant matter. In early 2021, the non-profit organization, Apache Stronghold, brought a lawsuit against the U.S. Forest Service to prevent it from transferring the Western Apache’s sacred place to a foreign mining company. The company, Resolution Copper, intends to mine the sacred place the Apache call Chi’chil Biłdagoteel, which translates into English as “Oak Flat.” The company will mine until tunnels underneath Oak Flat cause it to collapse into a crater two miles wide and 1,000 feet deep. Oak Flat’s collapse will destroy the ability to practice religious ceremonies at this sacred place. Once mining begins, the religious customs, rituals, and traditions practiced at Oak Flat will begin to disappear with the landscape itself. That is, the Western Apache will lose their ability to practice their customary religious ceremonies as well as the ability to pass these teachings on to future generations.

Under the precedent created by Navajo Nation, because the destruction of Oak Flat neither threatens individuals with civil or criminal penalties, nor deprives them of governmental benefits, there is no “burden” on Apache religious exercise. Now, the Ninth Circuit has the opportunity to correct its mistaken interpretation of RFRA. Hopefully the Court chooses the appropriate path of correcting the Navajo Nation decision, and affords Native American, place-based religions the same respect and protection enjoyed by other religions under the law.

Howard M. Shanker is currently the Attorney General for the Tohono O’odham Nation. Throughout his career, he has had the honor of representing Native Nations in the legal defense of sacred places vital to their practice of religion. For example, Shanker assisted the Navajo Nation in negotiating sacred place protections with the Obama Administration and in testifying before Congress about uranium mining and the resulting contamination of Navajoland. He represented the Navajo Nation, the Yavapai Apache Nation, the White Mountain Apache Tribe, the Havasupai Tribe, and others in an effort to stop the use of reclaimed sewer water to make snow on the sacred San Francisco Peaks in Navajo Nation et al, v. U.S. Forest Service, 535 F.3d 1058 (9th Cir. en banc, 2008). [https://americanlawsociety.com/united-states/tempe/howard-shanker]