Apache Stronghold v. United States

 On February 19, 2021, the case of the Apache Stronghold v. The United States reached the Ninth Circuit Court of Appeals in an emergency appeal. This case deals with the sacred site Oak Flat that has over the past 60 years belonged to the Apache. Oak Flat is where Native Americans have gone to worship, pray, and conduct religious ceremonies and is tied to the religious and cultural identity of the Apache people. Here they host important ceremonies such as the coming-of-age Sunrise Ceremony for women and gather sacred plants, animals, minerals, and water. The site itself is even included in the National Register of Historic Places that features prominent landmarks such as The Statue of Liberty. 

However, its significance to the Apache people has not stopped mining companies from looking to lay claim over the land. In 2014, senator John McCain gave permission to a foreign mining company control of the land by attaching a “rider”, an additional provision to a bill that has little connection to the bill, to a must pass National Defense Act. Interest in the Apache land is due to a large coal deposit that is 7,000 below the surface. Additionally, the government knows that the mine will leave a 2-mile wide, 1,100 foot deep crater in the land. Once this news came to light in January, 2021, the Apache Stronghold sued the U.S. government, stating that the government is violating the Religious Freedom Restoration Act and an 1852 treaty that protects the Apache land. 

The Religious Freedom Restoration Act states prohibits the government from substantially burdening a person’s religious exercise unless the burden is due to a compelling government interest. This act also states that the government must use restrictive means when applying the burden to the religious exercise. And thus, this act works hand in hand with the First amendment, which states that the government, “shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Apache Stronghold believes that the mine is creating a burden on the religious freedoms of the Apache people. Freedom of expression is what the Apache stronghold sees at being at stake and looks to have the freedom to pursue their faith free of discrimination or penalty. Furthermore, Apache Stronghold can invoke the Sherbert test in relation to the burden put onto the Apache people due to them not being able to use their sacred land for their own religious practices. 

This Sherbert test is birthed from the case Sherbert v Vernor, in which the court ruled in favor of Adell Sherbert. Within this case, Adell Sherbert was a member of the Seventh-Day Adventist Church and she was dismissed from her job due to her refusal to work on Saturdays because of her belief that Saturday was to be the Sabbath. Due to her refusal, she was also unable to obtain other employment and was denied unemployment compensation from South Carolina. South Carolina ruled that she had failed to accept work with good cause which disqualifies her from unemployment benefits. Within this case, the court ruled in favor of Sherbert stating that, “the ruling forces her to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning the precepts of her religion in order to accept work, on the other hand…[this] choice puts burden upon the free exercise of religion…” (Munoz, pg. 133). 

 

In the past, the government has often won these types of rulings when it comes to the use of Native American Lands, such as in Crow v. Gullet. In this case, the Lakota attempted to stop the expansion of a parking lot in Bear Butte State Park, which would increase tourism and restrict access to their ceremonial grounds and impact their first amendment rights. Here the government ruled in favor of the Gullet, Bear Butte State Park, due to compelling state interest that protects the health, welfare and safety of the park visitor while also improving public access to a historical landmark. The court stated that Crow failed to prove an infringement on their first amendment rights and that their right was temporarily restricted and thus the state interest outweighed their rights in this manner. With this in mind, I believe the court should rule in favor of the Apache Indians due to the manner in which the mine will be created and the burden it will put on the Indians. The state interest should be ruled to be a more compelling interest but the means in which they go about building the mine is not restrictive and completely destroys the Apache land. The Religious Freedom Restoration Act states that the government must be restrictive when applying a burden to one’s religious freedom. When it comes to the Sherbert Test, the Apache Indians are losing all control of their religious grounds and thus puts complete burden on the free exercise of religion. This case also differs from Crow v. Gullet due to the Apache Indians losing complete access to their land while the Lakota Indians still had access but it was restricted in their case.