Ninth Circuit Approves Destruction of Oak Flat Religious Site

Dissenting Judge: “Will prevent worshipers from ever again exercising their religion”
 
Apache Stronghold Vows to Appeal to the Supreme Court

​The Ninth Circuit Court of Appeals’ ruling against the Apache Stronghold, unless overturned, will allow the Apache’s Oak Flat religious site to be destroyed by a private mining company.
 
These lands have long been recognized by the U.S. government as the singular, sacred site of the Apaches’ worship. Set to be transformed into a crater twice as deep as the Washington Monument, not only is Oak Flat in danger of being destroyed, but with it the religion that centers around that site.
 
The least we can say is that this one was painfully close, a 6-5 split decision. The Ninth Circuit asserted that the transfer of this land, revered as the center of the Apache religion for centuries, did not (somehow) even trigger an inquiry under, much less violate, violate the Religious Freedom Restoration Act. That Act requires strict scrutiny of any law that burdens religious freedom. Judge Mary H. Murguia issued a stinging rebuke of the majority in her dissent:
 
“We are asked to decide whether the utter destruction of Chí’chil Biłdagoteel, a site sacred to the Western Apaches since time immemorial, is a ‘substantial burden’ on the Apaches’ sincere religious exercise under the Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. §§ 2000bb to bb-4. Under any ordinary understanding of the English language, the answer must be yes.”
 
Unless the U.S. Supreme Court grants cert. and overturns the Ninth Circuit’s unduly narrow conception of what constitutes a “burden” on religion, the Oak Flat religious site will become one of the nation’s largest copper ore mines, the result of a midnight deal in Congress. This scenic place of worship will become an ugly pit.
 
What was the reasoning of the majority? This en banc decision relied on a U.S. Supreme Court case, Lyng v. Northwest Indian Cemetery Protective Ass’n (1988), which held that government disposition of property does not violate the Free Exercise Clause so long as it “compels no behavior contrary to … belief.” It is doubtful that the Ninth Circuit’s broad reading of that statement remains valid, if it ever was. If barring people from entering a place of worship under COVID restrictions raises serious free exercise problems, it is hard to see how completely destroying a religion’s essential place of worship does not at least impose a burden sufficient to trigger strict scrutiny under RFRA.
 
People of all faiths should be concerned that the circuit court took such a miserly view of the free exercise of religion. Imagine the outcry from Catholics if the government decided to turn the Basilica of the National Shrine of the Immaculate Conception into dust. Or the outcry of American Jews if a midnight deal in Congress targeted the Touro Synagogue in Rhode Island – the oldest still standing in the United States, and where George Washington welcomed Jews into the heart of America – to become a seemingly bottomless pit. The notion that such acts would not even “burden” the exercise of religion goes well beyond the implausible and into the absurd.
 
We hope the Justices of the Supreme Court dwell on the words of our first President, who famously wrote to the congregants of the Touro Synagogue: “Every one shall sit in safety under his own vine and fig tree, and there shall be none to make him afraid.” Can we say that is true for everyone in our country now? To again quote the dissenting judges, “the destruction of the Apaches’ sacred site will prevent worshipers from ever again exercising their religion.”
 
Luke Goodrich, senior counsel at Becket who represented the Apache, tweeted: “We fully expect SCOTUS to take this case, confirm the plain meaning of federal law, and hold that Native Americans are entitled to the same protection of their religious freedom that every other American enjoys.” Protect The 1st is also hopeful the Court will see that the Apaches’ free exercise of religion is inextricable from the preservation of this uniquely holy place.
 
For the Supreme Court to review this case would be a prayer answered.