The University of St. Thomas School of Law Religious Liberty Appellate Clinic has filed an amicus curiae brief in the 9th U.S. Circuit Court of Appeals in the case Apache Stronghold v. United States. The brief is filed on behalf of five leading religious liberty scholars at law schools around the nation.
The brief argues that the federal government will violate the First Amendment religious rights of Native Americans in Arizona if it is allowed to transfer, and in turn destroy, sacred land known as Oak Flat to the Resolution Copper Mining company. It asserts that the government’s actions “will impose a ‘substantial burden’ on the Apaches’ religious exercise, by any ordinary meaning of that term, and therefore triggers the protections of Religious Freedom Restoration Act (RFRA).”
“This is probably the most important Native American religious liberty case in 15 years,” said Professor Thomas Berg, the Religious Liberty Clinic’s director. “It could change the legal test used throughout the Ninth Circuit, which likely has far more sacred sites on federal land than any other part of the country.”
The brief urges the court to focus on the “plain, ordinary meaning” of substantial burden when applying it as a legal test. It points to the definition of substantial burden that is used for cases involving the Religious Land Use and Institutionalized Persons Act (RLUIPA), RFRA’s sister statute. The brief states that it is less restrictive, more straightforward and in line with the purposes of RFRA that Congress intended, which it says is to:
“…provide meaningful protection for the religious exercise of all faiths. That includes faiths whose religious exercise is at the mercy of the government because government controls access to the resources necessary for the practices of the faith. The Apaches and other Native American worshipers are in that position.”
Oak Flat is part of the Tonto National Forest in southeastern Arizona. For centuries, it has been considered sacred by and been a place of worship for the Apache and other tribes, including the Zuni, Yavapai, O’odham and Hopi.
The land is also the site of a large, untapped copper deposit. Though it has long received government protection and is listed on the National Register of Historic Places, Congress approved the transfer of Oak Flat to Resolution Copper Mining in 2014 as part of the National Defense Authorization Act. The company says it plans to build a mine that is nearly two miles wide and almost 1,100 feet deep.
Berg says the Court’s decision in Apache Stronghold v. United States is critical for the Native American tribes involved in the case, but also for claims in other religious liberty cases.
“The appeals court’s narrow test would bar other claims that Congress clearly meant RFRA to cover, including religious objections to autopsies of family members, prisoner claims for access to religious resources, and congregations’ claims to be able to build or expand houses of worship,” he said.
Third-year St. Thomas law students Annika Johnson and Margaret Severson conducted research and contributed to drafting the brief. Alumnus Thomas Wheeler ’19 J.D., an associate with Fredrikson and Byron P.A. who participated in the Religious Liberty Clinic as a law student, was co-counsel on the brief – as was Miles Coleman, a partner at Nelson Mullins Riley & Scarborough, LLP.
Oral argument for Apache Stronghold v. United States is set for the week of March 20, 2023. The appeals court has decided it will be heard “en banc” in front of a panel of 11 judges, instead of the traditional panel of three, which is a procedure used by courts when a case is especially complex or significant.
Religious Liberty Appellate Clinic
The Religious Liberty Appellate Clinic is one of 10 legal clinics at the University of St. Thomas School of Law. The clinic’s primary clients are national civil liberties organizations and national religious organizations. Each year St. Thomas law students apply to participate in the clinic and, under the guidance of Berg, write appellate briefs – primarily amicus curiae briefs – in major cases involving religious liberty in the U.S. Supreme Court, lower federal courts and state appellate courts. The clinic supports religious freedom for all faiths and has filed briefs on behalf of Muslim, Jewish, and Christian adherents and groups.
