Biden Administration Moves to Consult with Apache Over Sacred Lands

​The Apache Stronghold’s case to protect Oak Flat, sacred tribal lands within Arizona’s Tonto National Forest, is still in play. If a previously government-approved transaction is allowed, Oak Flat will be turned over to a foreign mining consortium, Resolution Copper, to be transformed into a crater as long as the Washington Mall and as deep as two Washington Monuments. Although a federal district court initially ruled in favor of the Apache, the Ninth Circuit U.S. Court of Appeals in 2022 reversed the lower court ruling.
 
Then the Ninth Circuit veered back and reheard the Apache’s case in an en banc hearing. We are currently awaiting a decision and hoping for an Apache victory. Now there’s yet another reason for cautious optimism.
 
The Biden Administration, in a letter from Forest Service Associate Deputy Chief Troy Heithecker to Terry Rambler, chair of the San Carlos Apache tribe, expresses hopes to finalize a memorandum of understanding to set parameters around formal talks. The San Carlos Apache Tribe has for years pushed for a consultation agreement, so this letter comes as a heartening development.
 
Meanwhile, the Ninth Circuit, which reheard oral argument in March before a full panel of 11 judges en banc, remains a wild card.
 
At issue is whether the Oak Flat mining deal constitutes a “substantial burden” of the free exercise of religion guaranteed by the First Amendment and the Religious Freedom Restoration Act (RFRA). Granting requests for a rehearing are exceedingly rare, limited to about one-half of one percent of cases. So the rehearing served as a rare chance for the court to reverse itself. At worst, dissenting judges can get their opinions on record as fodder for a bid for the U.S. Supreme Court to hear the case.
 
If the Supreme Court were to accept an appeal, it could fundamentally alter the calculus in favor of the Apache. The shadow of Justice Neil Gorsuch looms large over Native American issues. Gorsuch has ruled in favor of Native American tribes in nearly a dozen cases, often casting his vote to give the Court’s liberal wing a rare majority. When the Ninth Circuit recently ruled against a different Native American tribe in favor of the government in a similar case out of Oregon, the government agreed to a settlement once it seemed possible the case could land before the Supreme Court.
 
Protect The 1st is pleased by the developments in the Apache Stronghold’s case to protect Oak Flat. The negotiation between the Apache and the Biden Administration should not deter the Ninth Circuit from finding in favor of the Apache on religious liberty grounds. As defenders of the First Amendment’s guarantee of freedom of religion, we look forward to further developments in the protection of sacred lands.