Western Apaches have lived, worshipped on, and cared for Oak Flat and surrounding land since before history began to be recorded. Oak Flat is of paramount significance for their prayer and sacred ceremonies; many of their most important religious practices must take place there. Oak Flat is considered the direct corridor to Apache religion. It is recognized in the National Register of Historic Places and sometimes compared to Mount Sinai for Jews.
Since the Eisenhower Administration, recognizing its responsibility to Native peoples, the federal government has expressly protected Oak Flat from mining. Although protected, mining companies still covet Oak Flat for a large copper deposit 7,000 feet below the surface and have long lobbied Congress to give them control of the land. Congress refused to oblige the mining companies for years and years, but in 2014, Congress failed Oak Flat and the Apaches when a last-minute rider was attached to a must-pass defense bill. The rider ordered Oak Flat to be transferred to Resolution Copper.
Apache Stronghold, which is a coalition of Apaches, other Native peoples, and non-Native allies dedicated to preserving Oak Flat, sued the U.S. government in federal court, arguing that the destruction of this sacred site violates the Religious Freedom Restoration Act (RFRA) and an 1852 treaty promising that the United States would protect their land and “secure the permanent prosperity and happiness” of the Apaches. The government admits the mine will destroy Oak Flat forever, thereby making the Apaches’ religious practices impossible.
The trial court declined to halt the land transfer, and Apache Stronghold filed an emergency appeal to the Ninth Circuit Court of Appeals. Six hours before the government’s response was due, the government announced it would withdraw the environmental impact statement that triggered the land transfer, which would delay the transfer for several months.
On June 24, 2022, the Ninth Circuit Court of Appeals, in a 2-1 decision, refused to protect Oak Flat, ruling that the land transfer did not substantially burden the Apaches’ religious exercise. In November 2022, the Ninth Circuit agreed to rehear the case en banc.
CLS joined an amicus brief filed for the rehearing en banc. The brief responding to an argument that the Biden Administration had chosen to emphasize for the first time at the en banc stage – the argument that RFRA does not apply in this case because it cannot bind the actions of a later Congress. CLS joined the brief because it is not hard to imagine how damaging it would be for religious freedom if the en banc Ninth Circuit held that Congress can implicitly exempt new legislation from RFRA.