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

United States of America v. Scott Warren

The good Samaritans of the border

Every year thousands of migrants travel across the Sonoran Desert—one of the most extreme environments in North America—to the United States border in California, Arizona, New Mexico, and Texas. The journey is treacherous, and thousands of migrants die on the way from exposure, dehydration, and hyperthermia. In Arizona alone, thousands of human remains have been found over the past two decades.

In the border counties of Arizona, humanitarian groups have formed to respond to the deaths and try to prevent them by leaving food, water, and supplies in areas that migrants are known to pass through, by conducting search and rescue missions, and by recovering the remains of migrants who have passed away on the journey—giving them a dignified burial.

Dr. Scott Warren is a resident of Ajo, Arizona. Driven by his religious belief that “all life is sacred, and places are sacred as well,” Dr. Warren is an active volunteer with the humanitarian aid group No More Deaths—one such group that works to ensure the safety of migrants as they pass through the desert. With No More Deaths, Dr. Warren regularly conducts “missions” on which he places food, water, and other supplies at specific “water drop” sites which are well documented and maintained by No More Deaths.

No good deed goes unpunished

On June 1, 2017, Dr. Warren and his companions loaded up their vehicles with food, water, and supplies and set out into the desert early in the morning. After departing from the public road in order to reach his drop site, he was spotted by an officer, arrested, and charged with “Abandonment of Property” for leaving the supplies for migrants.

Dr. Warren and his companions always log the location and amount of supplies they leave and return to collect containers that are empty or unused. They are not discarding, or abandoning, the supplies left at drop sites; rather, they are giving them to those in need in hopes that they will save lives that may otherwise be lost. Further, the government allows ATVs, camping, and hunting in the same area where it forbids this humanitarian work.

Free to act on faith

The federal Religious Freedom Restoration Act, or RFRA, embodies a simple principle: that government may not burden or punish religious exercise out of policy convenience or whim, but only in the rare case that it is truly necessary to serve an interest of overriding importance. Since it was passed in 1993, RFRA has been especially important to protecting the rights of religious minorities. (See RFRA Info Central for more information.)

In leaving supplies for migrants, Dr. Warren was acting on his sincerely held belief that every human life is sacred and no person should be left to die in the wilderness for lack of food, water, or medical supplies. The government, in prosecuting Dr. Warren, was burdening his religious practice and discouraging others from engaging in the same humanitarian work according to their own religious beliefs.

On November 21, 2019, a federal court acquitted Dr. Warren of the charge of abandonment of property based on his RFRA defense, ruling that the government did not need to burden Dr. Warren’s religious exercise in order to “protect[] the pristine state of the wildlife refuge” or “secur[e] the border.” He was found guilty of a vehicle permit violation, which may be appealed. Dr. Scott Warren is represented by Kuykendall & Associates of Tucson, Arizona.

Importance to Religious Liberty

  • Individual Freedom: Americans have the right to believe, express beliefs, and act in accordance with the dictates of their conscience. Faith cannot and should not be confined to what we do within the four walls of our homes and churches; we must be free to act on those beliefs in our interactions with the broader world.

Reed v. Town of Gilbert

Everyone is welcome at Good News Community Church.

Services are held Sundays. The Church encourages Christian fellowship through Bible study, religious song, and prayer. Its mission is outreach, inviting everyone into its community. As a fledgling congregation with limited financial means and no permanent location, the Church depends on sidewalk signs to spread word of events.

But in 2005, the town of Gilbert, Arizona, imposed strict regulations on the church’s signs, demanding they be no larger than six square feet and stand for no more than fourteen hours. Claiming safety and aesthetic concerns, the code threatens violators with fines and even jail time. Yet political, ideological, and other noncommercial signs can be up to thirty-two square feet in size and can stand for many months—sometimes indefinitely.

Represented by the Alliance Defending Freedom, Church Pastor Clyde Reed sued challenging the town’s discriminatory ordinance, but the Ninth Circuit ruled in the town’s favor, deeming political and ideological speech more valuable than the church’s religious speech.

Becket filed an amicus brief to the Supreme Court, supporting the Church and urging reversal of the Ninth Circuit’s ruling. Local governments should not be permitted to impose regulations that favor some kinds of speech, while discriminating against religious speech. The Supreme Court heard oral argument in this case in January 2015.

In June 2015, the Supreme Court ruled unanimously 9-0 in favor of Pastor Reed of Good News Community Church. The Court agreed with Becket’s argument, ruling that Gilbert’s sign ordinance violated the First Amendment because it showed no reason to justify discriminating against a church’s speech. This landmark ruling means that the government must treat religious speech the same as political speech and cities can’t treat churches as second-class citizens.

Arizona Christian School Tuition Organization v. Winn

Arizona set up an innovative system that allows Arizonans to create scholarship pools for students attending private schools. These “school tuition organizations” (STOs) give what amounts to scholarships to students who qualify.

Immediately after this program was enacted, ACLU-supported taxpayers sued the state, arguing that the entire STO program was unconstitutional because many of the funds from STOs would (they claim) go towards scholarships for religious schools. Alliance Defending Freedom represented the Arizona Christian School Tuition Organization.

After 13 years of litigation, the case finally made its way to the Supreme Court. Becket wrote a widely-noted brief filed with the Supreme Court, arguing that under current doctrines of “standing,” state taxpayers like the Winn plaintiffs do not have the right to bring the lawsuit.

The Supreme Court ruled our way.