Land, Liberty, & Copper?

Introduction

 This term, the Supreme Court will hear Apache Stronghold v. United States, a case that asks whether destroying a sacred site for mining violates religious freedom. For centuries, Western Apaches have worshipped at Oak Flat (Chí’chil Biłdagoteel) in Arizona. The federal government long protected Apache rituals there, but after copper was found beneath the site, Congress transferred the land to Resolution Copper. That transfer will destroy Oak Flat and end the Apaches’ sacred ceremonies. Facts of the Case

In response, Apache leaders sued under the Religious Freedom Restoration Act (RFRA) and the Free Exercise Clause. They argued that destroying Oak Flat imposes a “substantial burden” on their religious exercise by making their most important rituals impossible. A Ninth Circuit en banc panel, split into two separate 6–5 majorities, rejected both claims. The court said the destruction does not substantially burden religion under RFRA, relying on Lyng v. Northwest Indian Cemetery Protective Association (1988). And although the court agreed that singling out Oak Flat for destruction is not “generally applicable,” it nonetheless refused to apply heightened scrutiny under the Free Exercise Clause, again finding no substantial burden.

Constitutional Questions
An key issue is how to read RFRA’s “substantial burden” test and whether the Free Exercise Clause itself requires strict scrutiny when a law targets a sacred practice. Under RFRA, the government may only “substantially burden” religious exercise if it shows the law furthers a compelling interest by the least restrictive means. The Apaches say that destroying Oak Flat is the ultimate restriction—ending their rituals altogether—and that no mining interest can be so compelling. Resolution Copper and the government argue that RFRA does not cover land transfer decisions and that any burden on religion here is too indirect or speculative to qualify.

The Free Exercise Clause question overlaps: does singling out a religious practice for destruction trigger strict scrutiny—even without RFRA? After Smith, neutral laws of general applicability no longer require strict scrutiny under the Free Exercise Clause. But here the court below admitted the law is not generally applicable to religion, which traditionally should trigger heightened review. Yet the Ninth Circuit declined to apply it, again pointing to Lyng, which held that the government could build a road through a sacred site without violating the First Amendment.

Historical Background: The Proto‑Smith Era and Lyng
An article by Stephanie Barclay and Matthew Krauter reveals that Lyng was part of a “proto‑Smith” era in which the Court dismantled strict scrutiny for religious accommodation even before Employment Division v. Smith (1990). Justice O’Connor’s papers show that earlier decisions like Sherbert v. Verner (1963) and Wisconsin v. Yoder (1972) had set a high bar for laws burdening religion—compelling interest and least restrictive means. But in the 1980s, the Court, influenced by arguments from the Solicitor General’s office, grew reluctant to grant accommodations to “odd ball” or “squeaky wheel” faiths. Lyng thus marked a reversal: justices acknowledged they might have ruled differently if the government had acted at an earlier stage, but they refused to extend strict scrutiny to protect a sacred grove against forest service plans.

Barclay and Krauter argue that RFRA was Congress’s response to restore the Sherbert‑Yoder standard by mandating strict scrutiny for any substantial burden on religious exercise. Their research suggests Lyng should not be read as compatible with Sherbert but rather as a step toward Smith’s neutrality rule. This history is crucial for understanding why Apache Stronghold now asks the Supreme Court to choose between Supreme Court precedents that even the lower court struggled to fit together.

Analysis: Why the Case Matters
Apache Stronghold forces a clear choice. If the Court holds that destroying a sacred site is not a substantial burden, it will cement Lyng and Smith as barriers to protecting land‑based religious practices. That outcome would mean Native American rituals tied to geography have no special constitutional protection, even if Congress once promised protection. On the other hand, if the Court recognizes a substantial burden here, it would affirm RFRA’s promise that religious exercise deserves protection from government action that destroys its foundational practices.

The case also tests whether RFRA can fully override Lyng’s legacy. RFRA applies to all federal actions, so if the Court accepts the Apaches’ RFRA claim, it will confirm that Congress can restore strict scrutiny for free exercise. But the broader Free Exercise Clause question remains, will the Court revisit Smith’s neutrality rule and require heightened scrutiny for laws that target religion, especially with recent signals from Justices expressing interest in free exercise doctrine’s original meaning?

Conclusion
Apache Stronghold v. United States is more than a fight over land; it is a turning point for American religious freedom. The outcome will determine whether the First Amendment and RFRA protect sacred ceremonies tied to the land or leave them vulnerable to mineral claims. It will also signal whether the Court will continue down the Smith/Lyng path or reclaim earlier commitments to strict scrutiny for substantial burdens on religious exercise. For Western Apaches, the stakes are paramount: the right to worship their Creator in a place they have honored for generations hangs in the balance.

Sources

https://reason.com/volokh/2025/02/20/one-more-first-amendment-case-to-watch/