In Apache Stronghold v. United States (“United States”), Congress authorized a sale of “Oak Flat” in 2014. The sale transfers Oak Flat to mining companies, which would allow them to destroy the federal land for the purpose of extracting the valuable copper underneath. However, as Oak Flat is federal land, the federal law of the Religious Freedom Restoration Act of 1993 (“RFRA”) applies.
Additionally, the government protects federal land under federal law like RFRA. As Oak Flat was central to the Western Apache’s religious practices, the nonprofit organization “Apache Stronghold” (“Stronghold”) challenged the sale by invoking RFRA. RFRA prevents the federal government from “substantially burdening a person’s exercise of religion”. Thus, Stronghold argues RFRA prohibits government authorization for companies to destroy Oakland Flat, as it would be a (beyond) substantial burden against the free exercise rights of the Western Apache.
Would desecrating sacred indigenous land actually violate the Free Exercise Clause?
The Ninth Circuit acknowledged that the destruction of Oak Flat would prevent the Western Apache from ever “engaging in religious exercise” again (Gorsuch, 2025). However, the Ninth Circuit still rejected Stronghold’s RFRA-argument that this was unconstitutional by invoking “Lyng v. Northwest Indian Cemetery Protective Association” (1988) (“Lyng”) to apply its precedent, as facts of Lyng and facts of United States are similar. In Lyng, the United States Forest Services planned road construction through federal land, which was religiously “indispensable” (O’Connor, 1988) to Native American Tribes, which is relevant as the road construction would “virtually destroy” the Tribes’ ability to practice their religion. Lyng precedent proclaims the First Amendment does not prohibit “government programs” simply because of their “incidental effects” on religion. This means that the government’s role as a landowner permits its programs, so long as they do not “coerce” people into acting “contrary” to their religious beliefs, to be constitutionally allowed to incidentally hamper religious exercise.
The facts of Lyng mirror those within United States, as both cases are about corporate use of federal land that would destroy Native Americans’ practice of religion. As such, I understand how the precedent of Lyng could reasonably be applied to the facts of United States. However, I believe that the actual precedent of Lyng is wrong.
Lyng precedent differentiates free “exercise” and religious “beliefs”. Lyng wrongfully increases government capacity to encroach peoples’ religious actions and practices simply by saying that the “beliefs” are still intact by not coercing people to forgo their faith. However, this nuance between “beliefs” and “actions” is wrong because, so long as the government does not compel one’s internal thoughts and beliefs to change, the government programs are supposedly constitutional. Lyng precedent on its own facts tries to justify the construction of a road offending Native Tribes by saying the indigenous people still believe in their religion. Similarly, Lyng precedent on United States facts tries justifying conglomerates’ destruction against sacred grounds as constitutionally allowed so long as Western Apache still hold their religious beliefs. But the beliefs that make these government actions offensive are also fundamentally changed, as the desecration of sacred lands renders Natives with a new belief from the government’s actions, as the “portal” of Oak Flat is severed Apache connection to “the Creator” (Gorsuch, 2025). Therefore, the argument of “incidental effects” being constitutoinal is wrong because materially changing sacred lands directly changes beliefs. Extreme harm towards indigenous religions in Lyng and United States are far beyond “incidental” effects.
Lyng precedent is absurd because its wording diminishes the absurdly grandiose suffering of desicrating sacred indigenous lands. I argue to replace Lyng precedent with Wisconsin v. Yoder (1972) (“Yoder”) precedent.
Yoder facts apply to United States facts because both explore the religious right to exist by imparting their faith to their kin. In Yoder, the government mandated compulsory public school for the Amish. However, the Amish have a 300 year religious tradition to limit their exposure to the outside world and its ideas. Compulsory public school would jeopardize the Amish religion, so Yoder established the government can only constitutionally achieve their goals by narrowly tailoring their methods. Yoder relates to United States because desecrating sacred indigenous lands could jeopardize an Apache girl’s rite of passage to become an Apache adult. Apache induction into womanhood “depends on Oak Flat” (Gorsuch, 2025), where girls supposedly receive blessings from “holy spirits” that dwell in the ground (Gorsuch, 2025). However, authorizing copper mining could make a “1,000” foot deep crater, destroying both the practice and belief. I argue that Yoder constitutionally protects Oak Flat.
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