Apache Appeal to the Almighty and the Supreme Court to Save Oak Flat

​Peaceful protesters from Arizona’s Apache Stronghold held a day of prayer outside the U.S. Supreme Court last week. In their quest to preserve the centerpiece of their faith from utter destruction, the Apache certainly deserve our prayers. But they also deserve our amicus briefs, for the Almighty helps those who help themselves.
 
The Apache and other Native peoples led the way by asking the Supreme Court to protect their sacred land and – by extension – the sacred lands and landmarks of Jews, Christians, Muslims, and all Americans of faith. That is why Sikhs, Muslims, the Mennonite Church, other tribes, and the Christian Legal Society have filed briefs supporting Apache Stronghold.
 
For centuries, the Apache have held sacred a site in the Tonto National Forest in Arizona they call Chí’chil Biłdagoteel, known colloquially as Oak Flat. Though under management by the U.S. Forest Service, Oak Flat has for centuries been recognized as the central location for the Apache’s religious worship – a place where they honor their ancestors, hold ceremonies, and mediate their relationship with the Creator. It’s their Mount Sinai, Temple Mount, and Vatican.
 
After the discovery of copper beneath and around the site, Congress in an 11th hour deal transferred Oak Flat to Resolution Copper, a foreign mining company. The Apache and their allies (including us) are now engaged in a legal struggle to prevent Resolution Copper from transforming the site into a crater as deep as the Washington Monument.
 
The Apache have demonstrated that the federal government’s conveyance of their sacred land constitutes a violation of the Religious Freedom Restoration Act. Yet the Ninth Circuit Court of Appeals – usually not known for indifference to minority rights – sided with the mining company and the government in a 6-5 decision.
 
The court’s reasoning is self-contradicting. The Ninth agreed that the land’s disposition to Revolution Copper will categorically prevent the Apache from participating in any worship at Oak Flat because their religious site will be obliterated. Yet the court found that the land transfer would not constitute a “substantial burden” on religion because that standard does not apply in instances of “the Government’s management of its own land and internal affairs.” These rulings ignore both the recognition of Oak Flat as the sacred land of the Apache in treaties going back to the 19th century and is an absurdly narrow reading of constitutes a substantial burden on the free exercise of religion.
 
The Apache’s petition identifies the circuit split that only the Supreme Court can resolve: “This remarkable result openly conflicts with RFRA’s text, which expressly applies to all Federal law and ‘the use … of real property for the purpose of religious exercise’ – with no carveout for government property.” Further, the appellate court ruling “conflicts with decisions of the Fourth, Sixth, Seventh, Eighth, Tenth and Eleventh Circuits,” which “have long recognized that the government substantially burdens religious exercise not only by penalizing it but also by preventing it from occurring.”
 
Without intervention from the high court, the government will not only destroy the Apache’s religious heritage but provide a skeleton key for “eviscerating RFRA in any context deemed part of the government’s ‘internal affairs’ – a concept that could cover almost anything the government does.”
 
If you are a person of faith or respect the faiths of others, you have a stake in Oak Flat.