Apache Stronghold v. United States

Video: Apache sacred land threatened by mining in Arizona

A sacred site since time immemorial

Since before recorded history, Western Apaches have lived, worshipped on, and cared for Oak Flat and surrounding lands. Apaches believe that the Creator gives life to all things, including air, water, and the earth itself. Their religious and cultural identity is inextricably tied to the land, and Oak Flat has paramount significance for prayer and sacred ceremonies. Many of their most important religious practices must take place there, such as the coming-of-age Sunrise Ceremony for Apache women; sweat lodge ceremonies; gathering of sacred medicine plants, animals, and minerals; and the use of sacred waters. It is considered the direct corridor to Apache religion—recognized in the National Register of Historic Places and sometimes compared to Mount Sinai for Jews.

Broken promises

Unfortunately, the U.S. government has a sordid history of destroying Apaches’ lives and land for the sake of mining interests. In the 1870s, the federal government forced the Apache people onto the San Carlos Apache Indian Reservation and authorized miners to take Apache land. And although Oak Flat has been expressly protected from mining since the Eisenhower administration, mining companies still covet Oak Flat for a large copper deposit 7,000 feet below the surface.

Mining companies have long lobbied Congress to give them control of the land. One sponsor of a land-transfer bill was even convicted of soliciting a bribe from a mining company in exchange for his support. For many years, Congress refused, protecting the site from exploitation the same way it would preserve a historic, centuries-old church, mosque or synagogue. But in 2014, a last-minute rider was attached to a must-pass defense bill, ordering the land to be transferred to a foreign-owned mining company, Resolution Copper. The government admits the mine will destroy Oak Flat forever—obliterating the sacred ground in a nearly 2-mile-wide, 1,100-foot-deep crater, and making the Apaches’ religious practices impossible.

Seeking Justice

Apache Stronghold—a coalition of Apaches, other Native peoples, and non-Native allies dedicated to preserving Oak Flat—sued the government in federal court. They argued that the destruction of their sacred site violates the Religious Freedom Restoration Act (RFRA) and an 1852 treaty promising that the United States would protect their land and “secure the permanent prosperity and happiness” of the Apaches. After the trial court declined to halt the land transfer, Becket filed an emergency appeal to the Ninth Circuit Court of Appeals. Just six hours before the government’s response was due, the government announced that it would withdraw the environmental impact statement that triggered the land transfer, delaying the transfer for several months. On June 24, 2022, the Ninth Circuit Court of Appeals refused to protect Oak Flat, saying that the land transfer to Resolution Copper did not substantially burden the Apaches’ religious exercise. In a dissenting opinion, Judge Marsha Berzon called the ruling “absurd,” “illogical,” “disingenuous,” and “incoheren[t].”  

In November 2022, the Ninth Circuit agreed to rehear the case “en banc”––meaning in front of a larger panel of eleven judges.  On March 1, 2024, the Ninth Circuit again refused to stop the federal government from transferring the sacred site to Resolution Copper. Five judges dissented from the ruling, writing that the majority “tragically err[ed]” in allowing the government to “obliterat[e] Oak Flat” and prevent the “Western Apaches from ever again” engaging in their religious exercise.  

This is not the end for Oak Flat. Apache Stronghold asked the Ninth Circuit to rehear the case, this time asking all 29 judges to protect their sacred site at Oak Flat. If the full court declines to reconsider the case, Apache Stronghold has vowed to appeal the decision to the Supreme Court. 

In addition to Becket, Apache Stronghold is represented by attorneys Michael Nixon and Clifford Levenson. 

Importance to Religious Liberty:

  • Individual Freedom: The government cannot take actions that prevent or burden the expression or pursuit of religious beliefs. Because each human has an individual right to follow the unique dictates of his conscience, religious freedom cannot be confined to the four walls of a church building. Individuals should be free to pursue their faith at all times without fear of government discrimination or penalty.
  • Religious liberty for Native Americans: Whether they are directly targeted or indirectly affected by government actions, minority religious groups are particularly vulnerable to government violations of their religious liberty. Actively defending religious liberty for Native Americans strengthens religious liberty for people of all faiths.
  • Religious Freedom Restoration Act: Passed by a bipartisan coalition in 1993, this legislation protects religious groups by requiring the government to show a compelling interest and use the least restrictive means possible when its actions would pose a substantial burden on religious exercise.
Photo © Robin Silver Photography

Slockish v. U.S. Department of Transportation

A spiritual promise to protect sacred lands of Mount Hood

Members of the Confederated Tribes and Bands of the Yakama Nation and the Confederated Tribes of Grand Ronde have lived in the areas surrounding Mount Hood for centuries. Sacred land nearby, known as Ana Kwna Nchi Nchi Patat, or the Place of Big Big Trees, has been used for religious ceremonies and sacred burials since long before this nation was founded. 

For decades, Hereditary Chief Wilbur Slockish and Carol Logan, a spiritual practitioner and elder in her tribe, have visited the land to pray, meditate and pay respects to their ancestors through memorial ceremonies. As leaders in their community, their role of protecting the land and preserving their traditions is of utmost importance. 

Government bulldozes sacred lands

In 2006, the U.S. Federal Highway Administration announced a project to expand U.S. Highway 26, which runs between Mount Hood and Portland in Oregon. The Native leaders alerted government officials to the importance of the burial grounds, as tribe members had done in the past when the government announced expansion plans. Yet, this time, the government refused to listen.   

In 2008, ignoring the tribe members’ objections, government officials bulldozed the ancestral burial grounds. Although the government left the other side of the highway untouched—protecting nearby wetlands and a tattoo parlor—it destroyed ancestral grave sites, dismantled a sacred stone altar, and removed safe access to the sites.  

Defending the religious rights of Native Americans

In October 2008, Chief Slockish and Carol Logan, together with the Cascade Geographic Society, the Mount Hood Sacred Lands Preservation Alliance, and the late Hereditary Chief Johnny Jackson, sued the government, relying on the Religious Freedom Restoration Act (RFRA) and the Free Exercise Clause of the U.S. Constitution. After two-and-a-half years of negotiations between the tribe members and the government, negotiations failed.   

In 2015, the tribe members returned to court. In October 2017, an important hearing was held in which the tribe members asked the court to find that the destruction of their sacred site substantially burdened their religious practices. Sadly, the tribes were denied justice when the judge ruled that RFRA did not apply to the case and the government was free to bulldoze sacred Native American burial grounds and destroy sacred artifacts if it occurred on federal land.  

In December 2018, the tribe members asked the court for relief based on their claims that the destruction of their sacred site violated environmental laws. Following a magistrate judge’s preliminary recommendation against the tribe members in April 2020, the district court denied relief to the tribe members in a 3-page order on February 21, 2021.

The tribe members then appealed to the Ninth Circuit. On November 24, 2021, the Ninth Circuit ruled that the government will not be held responsible for its destruction of the sacred site and dismissed the case as “moot.” Essentially, the Ninth Circuit said nothing could be done since the destruction had already occurred.

On October 3, 2022, Becket asked the United States Supreme Court to reverse the Ninth Circuit’s ruling and hold the federal government accountable for needlessly destroying their sacred land. On October 5, 2023, after a 15-year legal odyssey, the government agreed to settle the case and make efforts to restore the site by replanting trees, allowing the tribal members to rebuild a centuries-old stone altar, and recognizing historic Native American use of the site.  

The tribe members are represented by Becket together with Keith Talbot of the Seattle-based law firm, Patterson Buchanan Forbes & Leitch. 

Importance to Religious Liberty

  • Individual freedom: Religious liberty includes the right to worship how and where one’s faith dictates. Government should not restrict the ability of individuals or groups to access religious sites, especially when there is an alternative way for the government to achieve its goal.
  • Religious liberty for Native Americans: Whether they are directly targeted or indirectly affected by government actions, minority religious groups are particularly vulnerable to government violations of their religious liberty. Actively defending religious liberty for Native Americans strengthens religious liberty for people of all faiths.

Sac and Fox Nation v. Borough of Jim Thorpe

Jim Thorpe, a living legend

Arguably one of the greatest athletes of the 20th century, Jim Thorpe won two Olympic gold medals and played three different professional sports – football, track and field, and baseball. In the course of his career, he was inducted to ten Halls of Fame and in 1950 the Associated Press called him the “greatest American football player” and the “greatest overall male athlete.”

Jim Thorpe’s athletic prowess undoubtedly has something to do with the Sac and Fox Nation Indian blood that ran through his veins. Born with the Indian name Wa-Tho-Huk or “Bright Path,” Jim Thorpe carried the spirit and customs of his tribe until his death in 1953.

A violation of Native American customs

Thorpe’s remaining two sons, along with the Oklahoma-based Sac and Fox Nation, have been fighting since his death to return his remains to the family grave site on sacred Sac and Fox land in Stroud, Oklahoma. The struggle began after a family dispute cut short the burial ceremony.

Thorpe’s body was taken and auctioned off to the highest bidder—a small Pennsylvania town he’d never even visited. Jim Thorpe has been buried there ever since; not next to family, not on sacred Native American land, but commercially on display in Jim Thorpe, Pennsylvania, where his remains have been mocked, vandalized, and desecrated.

Now his sons—themselves now elderly—want to bring him home, burying him near his parents and other family members in Oklahoma. Conner & Winters, LLP and Stanford Law School Supreme Court Litigation Clinic represented them. But the town refused, envisioning major tourist attractions that would come from the deal – an Olympic stadium, football shrine, a Jim Thorpe themed sporting goods store, and even a hotel named “Jim Thorpe’s Teepees.”

The relocation of Thorpe’s remains to Pennsylvania violates the Sac and Fox Nation’s beliefs that a sacred burial ceremony must take place to allow a body’s spirit to successfully complete its spirit journey. It also violates the federal Native American Graves Protections and Repatriation Act (NAGPRA), which was specifically passed to defend Native American religious beliefs and help these communities reclaim sacred items and remains that were unjustifiably taken from them.

However, the Third Circuit Court of Appeals rejected the sons’ request, saying the protections in the statute would lead to “absurd outcome.” This is a dangerous precedent putting courts in the business of deciding what religious beliefs are valid and which are not.

Becket defends the Sac & Fox Nation’s religious freedom

In our country, courts should not be in the business of rejecting religious protections simply because they think protecting those beliefs is “absurd.” Given the history of mistreatment of Native Americans by government officials, they take special care to protect the Native Americans’ religious practices.

In July 2015 Becket led a diverse coalition of religious groups to the Supreme Court, filing a friend-of-the-court brief to help honor the religious beliefs and final wishes of Jim Thorpe and his remaining family. Members of the coalition included Becket, the Church of the Lukumi Babalu Aye, the International Society for Krishna Consciousness, the Muslim Public Affairs Council, the National Council of Churches, and the Queens Federation of Churches. The coalition was represented at the Supreme Court by Becket, along with attorneys Troy Eid and Harriet McConnell of prominent international law firm Greenberg Traurig LLP, which has a nationally-renowned Indian Law practice.

However, in October 2015 the Supreme Court denied to hear the case, thus ending the battle to bring Jim Thorpe’s body back to Oklahoma.

McAllen Grace Brethren Church v. Jewell

What would you do if an undercover federal agent came into your church service, confiscated your communion wine, and threatened you with criminal prosecution? Sound crazy? Not if you are Native American.

Meet Pastor Robert Soto of the Lipan Apache tribe

Robert Soto is an award-winning feather dancer and Lipan Apache religious leader. In 2006, he attended a powwow – a Native American religious ceremony involving drumming, dancing, and ceremonial dress. But an undercover federal agent infiltrated the powwow and cut the celebration short when he noticed that Pastor Soto and others possessed eagle feathers.

Threatened for worshiping with eagle feathers

Click to view full size infographic

The agent interrogated Soto and other powwow participants, confiscated their feathers, and threatened them with criminal prosecution unless they signed papers abandoning their feathers. The agent claimed to be enforcing the Bald and Golden Eagle Protection Act, which prohibits possession of eagle feathers without a permit. Under the law, permits are available for museums, scientists, zoos, farmers, and “other interests” – such as power companies, which kill hundreds of eagles every year. They are also available for Native Americans – but only for federally recognized tribes.

Pastor Soto is a member of the Lipan Apache Tribe, which is recognized by historians, sociologists, and the state of Texas – but not by the federal government. Thus, while millions of other Americans are allowed to possess eagle feathers, Pastor Soto – a renowned feather dancer and ordained religious leader – was not.

Becket defends Pastor Soto’s religious freedom

With the help of Becket, Pastor Soto challenged this arbitrary law in federal court, arguing that it violated the Religious Freedom Restoration Act. Relying on the U.S. Supreme Court’s decision in Hobby Lobby, the Fifth Circuit Court of Appeals ruled in favor of Pastor Soto in 2014, stating that the federal government failed to adequately justify this restriction on religious freedom.

Soon after, the federal government entered a historic settlement agreement with Pastor Soto and over 400 members of his congregation. The agreement recognizes their right to freely use eagle feathers in observance of their Native American faith and promises that the government will reconsider its policies for enforcing feather restrictions in the future.

In April 2019, in response to Pastor Soto’s legal victory, the Department of the Interior published a petition for rulemaking from Becket to end the criminalization of eagle feather possession and expand existing protections for federally-recognized Native American tribes to cover members of state-recognized tribes as well. The public was able to comment on the petition through July 16, 2019. Becket analyzed the submitted public comments and found that there was significant support for the rule change from the general public and tribes.

For over a decade, Becket has actively defended the religious freedom of Native Americans. We currently represent members of the Klickitat and Cascade Tribes of the Yakima Nation in a case that calls government bureaucrats to account for the desecration of sacred burial grounds. We have urged government officials to protect the right of Native Americans to wear long hair or a symbolic headband in accordance with their faith. We have also filed legal briefs defending the right of Native American tribes to practice centuries-old religious ceremonies at sacred sites like the Medicine Wheel and Devil’s Tower National Monument in Wyoming.

Importance to Religious Liberty:

  • Individual Freedom: Religious liberty encompasses more than just freedom of thought or worship—it involves the right to practice one’s faith visibly and publicly. The government must respect the right of all people to practice their faith, and it must be especially careful to protect religious minorities who are at risk of discrimination by the government.
  • RFRA: The Religious Freedom Restoration Act ensures that the government cannot burden the religious exercise of individuals or groups to violate their deeply held beliefs without compelling interest or when there are reasonable alternatives to doing so.

Wyoming Sawmills Inc. v. United States Forest Service

Medicine Wheel is a sacred prehistoric stone circle about 80 feet in diameter that was constructed by the aboriginal peoples of North America.  Although the age of the structure is unknown, archaeological evidence indicates that human presence in the area goes back for 7,500 years or more.

Medicine Wheel remains a site of religious and cultural importance to the various Native American tribes in the region, who have gathered there for religious and other purposes for centuries.

In 1996, the Forest Service formulated a Historic Preservation Plan (“HPP”) to preserve the Medicine Wheel landmark and other valuable historic sites in the vicinity and make them accessible to both Native Americans who regard the sites as a sacred part of their culture and to the many interested visitors who travel to the mountain each year.

However, a private sawmill corporation wanting to use the property for commercial purposes, sued the forest Service over the Historic Preservation Plan claiming the accommodation for religious exercise of Native American faiths violated the Establishment Clause.  The sawmill lost at the district court level, then appealed the case to the 10th Circuit.

Enter Becket. Bringing together a vast coalition of Christian, Jewish, and Muslim organization, Becket filed an amicus brief emphasized that it is constitutional—even laudatory—for government to accommodate the religious practices of its people. Additionally, that this is a legitimate secular purpose of civil government.

The 10th Circuit ruled for protecting the sacred Indian sites, dismissing the sawmills claims of First Amendment violations.

The U.S. Forest Service was represented by the Department of Justice and the U.S. Attorney’s Office. Baldwin, Crocker & Rudd and the Association on American Indian Affairs defended Medicine Wheel.

*Photo  Credit: National Register of Historic Places

Bear Lodge Multiple Use Assocation v. Babbitt and Cheyenne River Sioux Tribe

Several Native American tribes, including the Cheyenne River Sioux of Wyoming, had worked with the National Park Service to make arrangements to practice their ancient Lakota rituals undisturbed every June on sacred grounds at Devil’s Tower National Monument in Wyoming. The area also happens to be quite popular for rock climbers and visitors, so the Park Service implemented a sensible plan that discouraged rock climbing during June, posted signs marking the sacred ground, and started a cultural education program that informed visitors of Native American culture and religion.

But a group of climbing guides sued the Park Service, arguing that the efforts unconstitutionally made the Lakota religion an official state religion in Wyoming. Becket, along with a group of civil liberty and religious organizations, fought back with an amicus brief on behalf of the tribe. The Tenth Circuit Court of Appeals, dismissed the case, finding that the climbers had failed to identify a personal injury and consequently had no standing to bring the case.

Cases like this are important because it is admirable when governments make a conscientious effort to protect religious minorities. Yet the same arguments used by the climbers, while seemingly absurd, are used to challenge studying religious texts in high school history or English classes, or exhibiting religious elements in local cultural festivals and displays. But the religious aspects in our culture and history are what make our society great.

Cheyenne River Sioux Tribe (Steven Emery, Thomas J. Van Norman), the Indian Law Resource Center and the Law Office of John Schumacher, LLC represented the tribes.