Amicus Curiae Brief — Apache Stronghold, Petitioner v. United States, et al.
Supreme Court briefOct 15, 2024
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No. 24-291
In the
Supreme Court of the United States
________________
Apache Stronghold,
Petitioner,
v.
United States of America, et al.,
Respondents.
__________
On Petition for a Writ of Certiorari to the
United States Court of Appeals for the
Ninth Circuit
__________
BRIEF OF APACHE ELDER RAMON RILEY,
PROFESSOR MICHALYN STEELE, AND SIX
NATIVE AMERICAN RIGHTS AND CULTURAL
HERITAGE ORGANIZATIONS AS AMICI
CURIAE IN SUPPORT OF PETITIONER
__________
JOHN A. MEISER
Counsel of Record
MEREDITH H. KESSLER
LINDSAY AND MATT MOROUN
RELIGIOUS LIBERTY CLINIC
Notre Dame Law School
1338 Biolchini Hall of Law
Notre Dame, IN 46556
574-631-3880
jmeiser@nd.edu
Counsel for Amici Curiae
TABLE OF CONTENTS
TABLE OF AUTHORITIES ...................................... ii
INTEREST OF AMICI CURIAE ............................... 1
SUMMARY OF ARGUMENT.................................... 3
ARGUMENT .............................................................. 4
I. The Ninth Circuit’s strained definition of
“substantial burden” defies RFRA and
idiosyncratically limits its protections. ................ 4
A. The Ninth Circuit’s definition cannot be
squared with RFRA’s text. ...............................5
B. The Ninth Circuit’s decision would
idiosyncratically deny protection to the most
egregious burdens on religion. .......................10
II. The Ninth Circuit’s misguided approach uniquely
harms Indigenous religious practices and
perpetuates a lamentable history of government
disregard for Indigenous people. ........................ 13
CONCLUSION ......................................................... 21
ii
TABLE OF AUTHORITIES
Cases
Abdulhaseeb v. Calbone,
600 F.3d 1301 (10th Cir. 2010) ............................ 10
Barr v. City of Sinton,
295 S.W.3d 287 (Tex. 2009) .................................. 17
Burwell v. Hobby Lobby Stores, Inc.,
573 U.S. 682 (2014) .......................................... 7, 11
C.L. for Urb. Believers v. City of Chicago,
342 F.3d 752 (7th Cir. 2003) .................................. 7
Comanche Nation v. United States,
No. 08-cv-849, 2008 WL 4426621
(W.D. Okla. Sept. 23, 2008) .................................. 20
Davila v. Gladden,
777 F.3d 1198 (11th Cir. 2015) ............................ 12
Davis v. Wigen,
82 F.4th 204 (3d Cir. 2023) .............................. 7, 12
Docket, Perez v. City of San Antonio,
No. 24-0714 (Tex. Sept. 6, 2024) .......................... 18
Emp. Div. v. Smith,
494 U.S. 872 (1990) ............................................ 7, 8
Fallon Paiute-Shoshone Tribe v. U.S. Dep’t of the
Interior,
Nos. 22-15092, 22-15093, 2022 WL 3031583
(9th Cir. Aug. 1, 2022) .......................................... 18
iii
Greene v. Solano Cnty. Jail,
513 F.3d 982 (9th Cir. 2008) ................................ 12
Haight v. Thompson,
763 F.3d 554 (6th Cir. 2014) ............................ 6, 11
Holt v. Hobbs,
574 U.S. 352 (2015) ............................................ 8, 9
Jones v. Carter,
915 F.3d 1147 (7th Cir. 2019) .............................. 10
Kaemmerling v. Lappin,
553 F.3d 669 (D.C. Cir. 2008) .............................. 17
Lovelace v. Lee,
472 F.3d 174 (4th Cir. 2006) ................................ 12
Lyng v. Nw. Indian Cemetery Protective Ass’n,
485 U.S. 439 (1988) ...................................... 5, 8, 13
Merced v. Kasson,
577 F.3d 578 (5th Cir. 2009) ................................ 17
Midrash Sephardi, Inc. v. Town of Surfside,
366 F.3d 1214 (11th Cir. 2004) .............................. 6
Moussazadeh v. Tex. Dep’t of Crim. Just.,
703 F.3d 781 (5th Cir. 2012) ................................ 10
Navajo Nation v. U.S. Forest Serv.,
535 F.3d 1058 (9th Cir. 2008) ................................ 4
O‘Lone v. Est. of Shabazz,
482 U.S. 342 (1987) ................................................ 9
iv
Perez v. City of San Antonio,
115 F.4th 422 (5th Cir. 2024) ............................... 18
Perez v. City of San Antonio,
98 F.4th 586 (5th Cir. 2024) ................................. 18
Perez v. City of San Antonio,
No. 5:23-cv-977, 2023 WL 6629823
(W.D. Tex. Oct. 11, 2023) ..................................... 17
Ramirez v. Collier,
595 U.S. 411 (2022) .............................................. 12
Roman Cath. Bishop of Springfield v. City of
Springfield,
724 F.3d 78 (1st Cir. 2013) ................................. 5, 6
S. Fork Band Council of W. Shoshone of Nev. v. U.S.
Dep’t of Interior,
588 F.3d 718 (9th Cir. 2009) ................................ 18
S. Fork Band v. U.S. Dep’t of Interior,
643 F. Supp. 2d 1192 (D. Nev. 2009) ................... 18
San Jose Christian Coll. v. City of Morgan Hill,
360 F.3d 1024 (9th Cir. 2004) ................................ 6
Seminole Nation v. United States,
316 U.S. 286 (1942) .............................................. 15
Slockish v. Dep’t of Transp.,
144 S. Ct. 324 (2023) ............................................ 16
Slockish v. Fed. Highway Admin.,
No. 08-cv-01169, 2021 WL 683485
(D. Or. Feb. 21, 2021) ........................................... 16
v
Slockish v. U.S. Dep’t of Transp.,
No. 21-35220, 2021 WL 5507413
(9th Cir. Nov. 24, 2021) ........................................ 16
Slockish v. U.S. Fed. Highway Admin.,
No. 08-cv-01169, 2020 WL 8617636
(D. Or. Apr. 1, 2020) ............................................. 16
Snoqualmie Indian Tribe v. FERC,
545 F.3d 1207 (9th Cir. 2008) .............................. 18
Standing Rock Sioux Tribe v. U.S. Army Corp of
Eng’rs,
239 F. Supp. 3d 77 (D.D.C. 2017) .................. 16, 17
Sts. Constantine & Helen Greek Orthodox Church,
Inc. v. City of New Berlin,
396 F.3d 895 (7th Cir. 2005) ................................ 11
Thai Meditation Ass’n of Ala., Inc. v. City of Mobile,
980 F.3d 821 (11th Cir. 2020) ................................ 7
Trinity Lutheran Church of Columbia, Inc. v. Comer,
582 U.S. 449 (2017) ................................................ 8
United States v. Mitchell,
463 U.S. 206 (1983) .............................................. 15
Westchester Day Sch. v. Village of Mamaroneck,
504 F.3d 338 (2d Cir. 2007) .................................. 11
Yellowbear v. Lampert,
741 F.3d 48 (10th Cir. 2014) ............................ 7, 11
Statutes
42 U.S.C. § 2000bb ........................................... 7, 8, 12
vi
42 U.S.C. § 2000bb-1 .............................................. 5, 8
Other Authorities
Alex Tallchief Skibine, Towards a Balanced
Approach for the Protection of Native
American Sacred Sites, 17 Mich. J. Race & L. 269
(2012) .................................................................... 13
Answering Br. for Fed. Appellees, Slockish v. U.S.
Dep’t of Transp., 2021 WL 5507413 (9th Cir. Nov.
24, 2021) (No. 21-35220) ...................................... 16
Black’s Law Dictionary (9th ed. 2009) ...................... 5
Bonnie Povolny, Tohono O’odham Nation: U.S.
Blasts a Monument to Build a Wall, Cultural Prop.
News (Feb. 27, 2020), https://bit.ly/47CsWp4 ..... 19
BREAKING: Feds Agree to Repair Native American
Sacred Site, Becket (Oct. 5, 2023),
https://bit.ly/4ewmNgu ......................................... 16
Debra Utacia Krol, Quechan Tribe Seeks Protection
of Sacred Lands with National Monument at
Indian Pass, AZCentral (Feb. 26, 2024, 6:01 AM),
https://bit.ly/3XGCSJI .......................................... 19
Elizabeth Miller, ‘As Close as the US Gets to Egypt’s
Pyramids’: How Chaco Canyon is Endangered by
Drilling, The Guardian (Nov. 8, 2017, 6:00 AM),
https://bit.ly/4gDCjcd............................................ 19
Excerpts from the Record, Apache Stronghold v.
United States, 101 F.4th 1036 (9th Cir. 2024) (No.
21-15295), ECF No. 34 ......................................... 14
vii
Joel West Williams & Emily deLisle, An “Unfulfilled,
Hollow Promise”: Lyng, Navajo Nation, and the
Substantial Burden on Native American Religious
Practice, 48 Ecology L.Q. 809 (2021) ................... 15
John R. Welch, Earth, Wind, and Fire: Pinal
Apaches, Miners, and Genocide in Central Arizona,
1859–1874, SAGE Open, Oct.–Dec. 2017 ............ 14
Maya L. Kapoor, Mining for Lithium, at Cost to
Indigenous Religions, HighCountry News (June 9,
2021), https://bit.ly/3XUdvW2.............................. 19
Merriam-Webster’s Collegiate Dictionary (10th ed.
1993)........................................................................ 6
Native American Ownership and Governance of
Natural Resources, U.S. Dep’t of the Interior,
https://bit.ly/4dhKBno (last visited
Sept. 19, 2024) ...................................................... 14
Protecting Bears Ears National Monument, Native
Am. Rts. Fund, https://bit.ly/4eAGTGi (last visited
Aug. 15, 2024) ....................................................... 19
Shelia Hu, The Dakota Access Pipeline: What You
Need to Know, Nat. Res. Def, Council (June 12,
2024), https://bit.ly/3MVqPTM ............................ 17
Stephanie Hall Barclay & Michalyn Steele,
Rethinking Protections for Indigenous
Sacred Sites, 134 Harv. L. Rev. 1294
(2021) ...................................................11, 13, 14, 15
viii
Thacker Pass/Peehee Mu’huh, Sacred Land
Film Project (Apr. 18, 2023),
https://bit.ly/3TFl8NI ..................................... 18, 19
INTEREST OF AMICI CURIAE
Amici curiae are Apache Elder Ramon Riley,
Professor Michalyn Steele, and six Native American
rights and cultural heritage organizations.1 Amici
submit this brief to highlight the lower court’s
disregard for the drastic harms caused by the
destruction of sacred sites and to ensure that the
protections of RFRA and the First Amendment extend
to the spiritual practices of all Indigenous people.
Ramon Riley is a respected Apache elder who
serves as the White Mountain Apache Tribe’s
Cultural
Resource
Director,
NAGPRA
Representative, and Chair of the Cultural Advisory
Board. Letters he sent to the U.S. government
regarding Oak Flat are included in the record at Pet.
App. 1167a–1175a. Riley has spent most of his life
and career working to maintain Apache cultural
knowledge and pass it down to future generations. He
has spent the last two decades working to defend Oak
Flat. He opposes the proposed mining project for Oak
Flat because he believes it is wrong to “destroy sacred
land that made us who we are.” Pet. App. 1169a.
Michalyn Steele is the Marion G. Romney
Professor of Law at Brigham Young University Law
School. She is a federal Indian law scholar and tribal
member of the Seneca Nation who has written about
the legal and historical impediments to Indigenous
people accessing sacred sites.
The members of the International Council of
1 No party or counsel for a party wrote any part of this brief.
No person other than amici and their counsel made any financial
contribution to the preparation of this brief. Counsel for all
parties were notified ten days in advance pursuant to Supreme
Court Rule 37.2.
2
Thirteen Indigenous Grandmothers come together to
protect the lands where Indigenous peoples live and
upon which these cultures depend.
The MICA Group (Multi-Indigenous Community
Action) is a nonprofit organization that has worked
with hundreds of Tribal Nations throughout the
country on cultural revitalization and other projects.
Xanapuk Land Water and Culture Conservancy
Inc., comprised entirely of citizens of the Fort Yuma
Quechan Nation, fully supports the fight to protect all
Tribal religious freedom and for protection of Tribal
religious spaces.
American
Indian
Movement
Cleveland
Autonomous Network (Cleveland AIM) is an Ohio
unincorporated nonprofit association that advocates
for Indigenous rights, and strives to provide education
and social services for Native Peoples in northeast
Ohio.
Atsa Koodakuh wyh Nuwu, People of Red
Mountain in the Paiute language, is an Indigenousled grassroots organization representing tribal
communities who are fighting to protect their sacred
homelands from lithium mining in the McDermitt
Caldera located in Northern Nevada.
Confederated Villages of Lisjan Nation, an Ohlone
tribe, continues to inhabit its ancestral homeland,
fight for its sacred sites, and revitalize its cultural
practices.
3
SUMMARY OF ARGUMENT
Meaningful access to sacred sites such as Oak Flat
is an indispensable part of many Indigenous tribes’
religious exercise. Nonetheless, the government has
repeatedly denied necessary access to these sites, and
even destroyed them, thwarting the ability of tribal
members to exercise core aspects of their spiritual
practices. Regrettably, the Ninth Circuit’s errant
decision denies the Apache people critical legal
protections against such destruction—and thus only
invites the government to do more of the same. That
decision not only gets the law wrong, but it threatens
to continue a long and lamentable history of
government disregard for Indigenous religious
practices. It must be corrected.
In its fractured en banc opinion, the Ninth Circuit
fashioned an erroneous and atextual definition of
“substantial burden” under RFRA to arrive at the
startling conclusion that the complete destruction of a
person’s ability to practice her religion does not
qualify. That definition is nonsensical. It excludes
situations where, like here, the ability to exercise
one’s religion is completely destroyed. When courts
uniformly agree that even mere inconvenience or
added expense may impose a substantial burden on
religious exercise, it strains credulity to conclude that
rendering a religious practice physically impossible
cannot. The only justification the Ninth Circuit
offered for doing so was its suggestion that RFRA
ought to “subsume” a prior decision of this Court,
Lyng v. Northwest Indian Cemetery Protective
Association—a decision that RFRA does not mention,
that does not itself use the phrase “substantial
4
burden,” and that, if anything, RFRA was meant to
reject.
But worse still, this misguided approach uniquely
endangers land-based religions and Indigenous
religious practices, which can never be reclaimed once
the sacred sites on which they depend are lost. That
danger is even more acute for practices that depend
on the continued use of land under governmental
control—as so many Indigenous sites are. And that,
in turn, gerrymanders critical protections for
religious exercise to leave Indigenous worshippers at
a special disadvantage, perpetuating a long history of
government callousness towards them.
To clarify the meaning of both RFRA and the First
Amendment, and to ensure their critical protections
for land-based faiths—and Indigenous people in
particular—this Court should grant the petition for
certiorari and reverse.
ARGUMENT
I. The Ninth Circuit’s strained definition of
“substantial burden” defies RFRA and
idiosyncratically limits its protections.
In the decision below, the Ninth Circuit correctly
dispensed with the unduly narrow definition of
“substantial burden” it had previously set forth in
Navajo Nation v. United States Forest Service, 535
F.3d 1058 (9th Cir. 2008) (en banc). In its place,
another splintered en banc panel has now imposed a
modified but no less mistaken definition of
“substantial burden.”
In the Ninth Circuit’s view, the “disposition of
government real property does not impose a
5
substantial burden” on a claimant’s “religious
exercise” when it (1) has “‘no tendency to coerce
individuals into acting contrary to their religious
beliefs’”; (2) “does not ‘discriminate’ against religious
adherents”; (3) “does not ‘penalize’ them”; and (4)
“does not deny them ‘an equal share of the rights,
benefits, and privileges enjoyed by other citizens.’”
Pet. App. 14a–15a (per curiam) (quoting Lyng v. Nw.
Indian Cemetery Protective Ass’n, 485 U.S. 439, 449–
50 (1988)); see also Pet. App. 40a (Collins Op.). This
carve-out of “substantial burden” for cases concerning
government property cannot be squared with the
statute’s text. And that invented definition would
bizarrely exclude the most burdensome governmental
actions from RFRA’s protection, while offering relief
from less consequential intrusions.
A. The Ninth Circuit’s definition cannot be
squared with RFRA’s text.
First, the text of RFRA plainly encompasses the
destructive action at issue here. RFRA generally
prohibits the government from “substantially
burden[ing] a person’s exercise of religion.” 42 U.S.C.
§ 2000bb-1(a). Congress provided no definition of the
term “substantial burden,” but the plain meaning of
that phrase unquestionably embraces situations
where the government forever destroys individuals’
ability to exercise their religious convictions.
“A ‘burden’ is ‘[s]omething that hinders or
oppresses.’” Roman Cath. Bishop of Springfield v.
City of Springfield, 724 F.3d 78, 96 (1st Cir. 2013)
(alteration in original) (quoting Black’s Law
Dictionary 223 (9th ed. 2009)). And “something is
‘substantial’ when it is ‘important’ or ‘significantly
great.’” Id. (quoting Merriam-Webster’s Collegiate
6
Dictionary 1174 (10th ed. 1993)). It is true that “[a]
burden does not need to be disabling to be
substantial,” id. (emphasis added), but no fair
construction of the term “substantial burden” could
exclude the destruction of the place where an
individual must worship, cf. San Jose Christian Coll.
v. City of Morgan Hill, 360 F.3d 1024, 1034 (9th Cir.
2004) (“[F]or a land use regulation to impose a
‘substantial burden,’ it must be ‘oppressive’ to a
‘significantly great’ extent.”).
Numerous
circuits
have
echoed
this
straightforward understanding: Individuals face the
most extreme burden when they are required to forgo
a religious practice entirely. As the Sixth Circuit has
observed, “it is strange to think of this debate” over
the definition of “substantial burden” when the prison
“barred access to the [Native American religious]
foods altogether.” Haight v. Thompson, 763 F.3d 554,
564–65 (6th Cir. 2014). The Eleventh Circuit has held
that “an individual’s exercise of religion is
‘substantially burdened’ if a regulation completely
prevents the individual from engaging in religiously
mandated activity.” Midrash Sephardi, Inc. v. Town
of Surfside, 366 F.3d 1214, 1227 (11th Cir. 2004). And
that circuit later clarified that complete prevention of
religious exercise represents an especially severe
burden. Complete prevention of religious exercise,
the court explained, is an “example[] of the sort of
conduct that clearly satisfies the substantial-burden
standard—not . . . the standard itself.”
Thai
Meditation Ass’n of Ala., Inc. v. City of Mobile, 980
7
F.3d 821, 830 (11th Cir. 2020) (emphasis added).
Other circuits agree.2
Perhaps unsurprisingly, the Ninth Circuit pointed
to nothing in RFRA’s text to justify its rule. The
Ninth Circuit instead tied its atextual definition of
“substantial burden” to this Court’s decision in Lyng.
But the statute does not mention Lyng—a case which
itself does not mention the phrase “substantial
burden.” This Court has previously warned against
importing “the specific holdings of our pre-Smith freeexercise cases” into RFRA. Burwell v. Hobby Lobby
Stores, Inc., 573 U.S. 682, 691 (2014). And what the
statute does say about this Court’s precedents
suggests that any test under Lyng was not meant to
be incorporated.
RFRA explains Congress’s finding that, in
Employment Division v. Smith, 494 U.S. 872 (1990),
this Court had wrongly “eliminated the requirement
that the government justify burdens on religious
exercise imposed by” neutral laws.
42 U.S.C.
§ 2000bb(a)(4). And, Congress explained, the purpose
of RFRA is “to restore” the test that existed prior to
2 See C.L. for Urb. Believers v. City of Chicago, 342 F.3d 752,
761 (7th Cir. 2003) (“[A] land-use regulation that imposes a
substantial burden on religious exercise is one that . . . render[s]
religious exercise . . . effectively impracticable.”); Yellowbear v.
Lampert, 741 F.3d 48, 55 (10th Cir. 2014) (Gorsuch, J.) (“[A]
burden on a religious exercise rises to the level of being
‘substantial’ when (at the very least) the government . . .
prevents the plaintiff from participating in an activity motivated
by a sincerely held religious belief.” (citations omitted)); Davis v.
Wigen, 82 F.4th 204, 212 (3d Cir. 2023) (“There can hardly be a
more substantial burden on a religious practice or exercise than
its outright prohibition. . . . [T]he more proximate the
government action is to an outright bar, the more likely it is a
substantial burden.”).
8
Smith, as “set forth in Sherbert v. Verner and
Wisconsin v. Yoder.” Id. § 2000bb(b)(1) (citations
omitted). This test requires the government to
demonstrate that its action is the least restrictive
means of furthering a compelling interest when it
substantially burdens religious exercise.
Id.
§ 2000bb-1(b).
So RFRA requires the restoration of some preSmith case law. But not all—and not Lyng. Indeed,
in Smith itself, this Court noted that several of its
prior decisions—including Lyng—had “abstained”
from applying the compelling-interest test from
Sherbert and Yoder. Smith, 494 U.S. at 883–84. In
other words, by this Court’s own description, even
before Smith certain cases did not reflect the Sherbert
rule. According to this Court, Lyng specifically
“declined to apply [the] Sherbert analysis.” Smith,
494 U.S. at 883 (citing Lyng, 485 U.S. at 451); see also
Lyng, 485 U.S. at 450–51; Pet. App. 244a, 247a–48a
(Murguia Dissent). Rather, much like Smith itself,
Lyng was a case where the Court “rejected [a] free
exercise challenge[]” to a “neutral and generally
applicable” law.
Trinity Lutheran Church of
Columbia, Inc. v. Comer, 582 U.S. 449, 460 (2017). It
makes little sense to interpret the compelling-interest
test that RFRA was specifically designed to restore by
reference to cases that failed to apply that test at all—
or worse still, a case that applied the very Smith rule
RFRA supplants.
Interpreting RFRA to “subsum[e] . . . the holding
of Lyng,” Pet. App. 58a (Collins Op.), also runs
counter to this Court’s treatment of pre-Smith cases
under RFRA’s sister statute, the Religious Land Use
and Institutionalized Persons Act (RLUIPA). In Holt
v. Hobbs, 574 U.S. 352 (2015), a Muslim prisoner
9
claimed that a prison policy against growing beards
substantially burdened his religious exercise in
violation of RLUIPA, id. at 355–56. The lower courts
rejected his claim by relying on pre-Smith cases,
including O‘Lone v. Estate of Shabazz, 482 U.S. 342
(1987), in which this Court had rejected a free exercise
challenge to a law that incidentally burdened religion,
Holt, 574 U.S. at 361.
This Court reversed,
concluding that Holt “easily satisfied [his] obligation”
to show a substantial burden. Id. In concluding
otherwise, the lower court had “improperly imported
a strand of reasoning from cases [like O’Lone],” and,
in doing so, “misunderstood the analysis that
RLUIPA demands.” Id. In those cases, questions like
whether a law had only incidentally burdened religion
or whether there were “alternative means of
practicing religion” available might have been
“relevant consideration[s]” in deciding whether the
claimant’s religious exercise had been impermissibly
burdened.
Id.
But under RLUIPA’s “greater
protection,” the policy substantially burdened Holt’s
religious exercise by requiring him to act in violation
of his beliefs—notwithstanding anything that cases
like O’Lone might suggest to the contrary. Id. at 361–
62; see also Pet. App. 228a (Murguia Dissent) (“RFRA
and RLUIPA later essentially codified Justice
Brennan’s [O’Lone] dissent.”).
Like O’Lone and Smith itself, Lyng declined to
apply the compelling interest test to a law that
incidentally affected religious exercise. But RLUIPA
and RFRA offer greater prohibitions against
substantial burdens, specifically to override that
watered-down approach to religious exercise claims.
Holt, 574 U.S. at 357–58. RFRA should not be
interpreted to somehow incorporate Lyng when it
10
undoubtedly rejects companion cases like Smith and
O’Lone.
B. The Ninth Circuit’s decision would
idiosyncratically deny protection to the
most egregious burdens on religion.
The Ninth Circuit’s gerrymandered definition of
religious burden also makes little sense. Any fair
interpretation of substantial burden on religious
exercise must include government action that
prevents that exercise completely. Indeed, while
courts, of course, disagree over exactly where the line
for “substantial” burdens falls, all courts routinely
find that burdens well short of rendering religious
practices impossible count as “substantial.” The
Ninth Circuit, however, now holds that actions that
go well beyond that do not count. That cannot be
right.
In many cases, it is enough that the government’s
action has made religious activity more cumbersome,
inconvenient, or expensive to constitute a substantial
burden. For example, courts have repeatedly held
that the government substantially burdens religious
exercise when it requires Jewish or Muslim inmates
to pay for kosher or halal meals while other prisoners
receive food at no cost. See Moussazadeh v. Tex. Dep’t
of Crim. Just., 703 F.3d 781, 793–94 (5th Cir. 2012);
Jones v. Carter, 915 F.3d 1147, 1150–51 (7th Cir.
2019); Abdulhaseeb v. Calbone, 600 F.3d 1301, 1317–
18 (10th Cir. 2010). In the land-use context, the
Seventh Circuit has held that requiring a church to
expend considerable effort searching for other parcels
of land or filing repeated additional applications with
the city would have imposed “delay, uncertainty, and
expense” on its ability to build a new church—a
11
substantial burden on its religious exercise. Sts.
Constantine & Helen Greek Orthodox Church, Inc. v.
City of New Berlin, 396 F.3d 895, 901 (7th Cir. 2005);
accord Westchester Day Sch. v. Village of
Mamaroneck, 504 F.3d 338, 352–53 (2d Cir. 2007).
And this Court has recognized that imposing heavy
fines for failing to comply with religiously
objectionable regulations substantially burdens
religious exercise, opining that “it would be hard to
see what would” count as a substantial burden if such
financial penalties did not. Hobby Lobby, 573 U.S. at
691.
If these actions impose substantial burdens, it
should be obvious that destruction of religious
exercise does too.
Indeed, surely the “greater
restriction (barring access to the practice) includes
the lesser one (substantially burdening the practice).”
Haight, 763 F.3d at 565.
And although the
government might not always be in a position to
eliminate religious exercise entirely, when it does,
other courts have found a burden. See generally
Stephanie Hall Barclay & Michalyn Steele,
Rethinking Protections for Indigenous Sacred Sites,
134 Harv. L. Rev. 1294, 1333–43 (2021). This is often
seen in the prison context, where courts have
repeatedly held that the government imposes a
substantial burden under RLUIPA when it prevents
a prisoner from engaging in a particular religious
practice.
For example, the Tenth Circuit concluded that the
government substantially burdened a prisoner’s
religious exercise when the prison “flatly prohibit[ed]”
him from accessing a sweat lodge needed for his
religious practices. Yellowbear, 741 F.3d at 56
(Gorsuch, J.); see also Davila v. Gladden, 777 F.3d
12
1198, 1205 (11th Cir. 2015) (denying inmate beads
and shells required by his religious beliefs was a
substantial burden). The Fourth Circuit likewise
recognized that the exclusion of a Muslim prisoner
from a list of those approved to observe Ramadan
imposed a substantial burden because he was left
“[u]nable to fast,” such that “he could not fulfill one of
the five pillars or obligations of Islam.” Lovelace v.
Lee, 472 F.3d 174, 187–88 (4th Cir. 2006). And the
Third Circuit recently determined that a prison
substantially burdened claimants’ religious exercise
by “prohibit[ing] [them] from marrying throughout
[their] four years at the prison.” Davis, 82 F.4th at
213. Just recently, this Court ruled in favor of a
death-row prisoner where no one disputed that a
policy prohibiting his pastor from praying with him
during his execution was a substantial burden,
preventing him from “engag[ing] in protected
religious exercise in the final moments of his life.”
Ramirez v. Collier, 595 U.S. 411, 426, 433 (2022).3
Here, the government’s action will not merely
inconvenience Apache Stronghold or make its
particular beliefs more expensive to exercise. It will
extinguish certain religious practices entirely. That
3 To be sure, determining that the government has imposed
a substantial burden is not the end of the inquiry. Rather, it
triggers a strict-scrutiny analysis to find the “balance[] between
religious liberty and competing prior governmental interests.”
42 U.S.C. § 2000bb(a)(5). In the prison context, for example,
courts have not compelled prison officials to accommodate every
request related to religious practice, as some restrictions might
be justified even under this demanding standard. See, e.g.,
Greene v. Solano Cnty. Jail, 513 F.3d 982, 988 (9th Cir. 2008).
As Petitioner explains, that means-end scrutiny—not the
threshold burden inquiry—is the proper mechanism to address
the interests that the government asserts here. Pet. 38–39.
13
surely imposes a “substantial burden” on those
practices under any reasonable understanding of that
term.
II. The Ninth Circuit’s misguided approach
uniquely
harms
Indigenous
religious
practices and perpetuates a lamentable
history of government disregard for
Indigenous people.
Failure to recognize the devastating (and indeed
substantial) religious burden at issue here will
uniquely harm Native Americans who practice landbased religions. Indeed, despite courts’ otherwise
generous protection for religious exercise under
RFRA and the First Amendment, Native spiritual
practitioners have often not received the same. That
double standard should be rectified, not left in place
to further a long and lamentable history of disregard
for Indigenous religious rights.
Native American religious practice is inherently
tied to the land on which that practice occurs. See
Alex Tallchief Skibine, Towards a Balanced Approach
for the Protection of Native American Sacred Sites, 17
Mich. J. Race & L. 269, 270 (2012); see also Lyng, 485
U.S. at 460–61 (Brennan, J., dissenting). To be sure,
the importance of sacred sites is not unique to Native
peoples. See Barclay & Steele, supra, at 1303. But
what is unique to “Indigenous peoples in countries
such as the United States is the extent of the obstacles
that government has created and maintains to inhibit
[their] use of these sacred sites.” Id. at 1304. “These
obstacles, both historic and contemporary, have
resulted in catastrophic interference with Indigenous
spiritual practices related to particular sites,” and
have “often operat[ed] as an effective prohibition on
14
[religious] practices.” Id. And once that land is lost,
the spiritual practices rooted there can often never be
regained.
Conflict over access to sacred sites is
unfortunately common for Native Americans because
so many of their religious sites are located on property
now controlled by the federal government. In fact, the
majority of Native American lands are held in trust
by the government—approximately 56 million acres
in total.4 And the government acquired much of this
land—including, as Petitioner has alleged, Oak
Flat—by ignoring treaties or simply confiscating it.
See Excerpts from the Record at 2-ER-240–42, 256–
57, Apache Stronghold v. United States, 101 F.4th
1036 (9th Cir. 2024) (No. 21-15295), ECF No. 34. The
government forced out the Native inhabitants who
once lived on the confiscated land, including the
Apaches in the area of Oak Flat, often by violent
means. As “settlers and miners entered the area [of
Oak Flat,] . . . U.S. soldiers and civilians repeatedly
massacred Apaches.” Pet. 12; see also Pet. App. 858a.
Indeed, in order to make way for mining interests, one
of those soldiers, General James Carleton, ordered
“‘removal to a Reservation’” or “‘utter extermination’
of Apaches.” Pet. at 12 (quoting John R. Welch, Earth,
Wind, and Fire: Pinal Apaches, Miners, and Genocide
in Central Arizona, 1859–1874, SAGE Open, Oct.–
Dec. 2017, at 1, 8).
Indigenous groups are thus often at the mercy of
the government if they wish to continue centuries-old
4 Native
American Ownership and Governance of Natural
Resources, U.S. Dep’t of the Interior, https://bit.ly/4dhKBno (last
visited Sept. 19, 2024).
15
practices and ceremonies.5 Indeed, the government’s
dispossession of Native lands is what made those
groups dependent on legal protection to access these
sites. See Joel West Williams & Emily deLisle, An
“Unfulfilled, Hollow Promise”: Lyng, Navajo Nation,
and the Substantial Burden on Native American
Religious Practice, 48 Ecology L.Q. 809, 814 (2021).
But the government has often disregarded land-based
claims of Native religious exercise, despite its “moral
obligations of the highest responsibility and trust” in
its relations with Native Americans. Seminole Nation
v. United States, 316 U.S. 286, 296–97 (1942); see also
United States v. Mitchell, 463 U.S. 206, 225 (1983) (“a
general trust relationship between the United States
and the Indian people” is “undisputed”). The same
callous disregard persists today, as the federal
government continues to cause Indigenous sacred
sites to be bulldozed, developed for commercial
interests, and even blown up. See Barclay & Steele,
supra, at 1296.
Unfortunately, courts have often failed to protect
sacred sites from destruction. For example, in
Slockish v. U.S. Federal Highway Administration, the
government expanded a highway by bulldozing an
Indigenous sacred site consisting of ancient burial
grounds, an altar, and old-growth trees while leaving
the other side of the highway untouched. No. 08-cv5 To the extent the majority below purported to diminish the
relevance of prison and land-use cases as situations in which
government “coercion” is “already baked in,” Pet. App. 54a, that
could hardly distinguish cases involving the use of sacred Native
lands which the government has actively taken from Indigenous
groups for centuries. See also Barclay & Steele, supra, at 1320–
43 (discussing “baseline of coercion” in these contexts). For a
fuller account of the historic and ongoing failure to protect these
sacred sites from destruction, see generally id.
16
01169, 2020 WL 8617636, at *17–18 (D. Or. Apr. 1,
2020), report and recommendation adopted in
relevant part sub nom. Slockish v. Fed. Highway
Admin., No. 08-cv-01169, 2021 WL 683485 (D. Or.
Feb. 21, 2021).6 The court determined that the
government had not imposed a substantial burden
because it had not withheld a benefit or imposed a
sanction on its religious exercise—even though the
site had been completely destroyed. Slockish, 2020
WL 8617636, at *38.7 Remarkably, the government
later admitted that the site’s destruction was
completely unnecessary and eventually settled with
the Indigenous plaintiffs before the case could be
heard by the Supreme Court. Answering Br. for Fed.
Appellees at 43, Slockish, 2021 WL 5507413 (No. 2135220); BREAKING: Feds Agree, supra; Slockish v.
Dep’t of Transp., 144 S. Ct. 324 (2023) (mem.)
(dismissing the petition for certiorari). That was cold
comfort, of course, to the Indigenous people whose
sacred burial ground had already been decimated.
Similarly, in Standing Rock Sioux Tribe v. U.S.
Army Corp of Engineers, the government sought to
grant an oil company an easement to land under a
sacred lake. 239 F. Supp. 3d 77 (D.D.C. 2017). The
flow of oil underneath the lake would spiritually
desecrate the water for the Native American
community that worshipped there, rendering their
See also BREAKING: Feds Agree to Repair Native
American
Sacred
Site,
Becket
(Oct.
5,
2023),
https://bit.ly/4ewmNgu.
7 The Ninth Circuit dismissed the plaintiff’s appeal of this
decision as moot because, after a state defendant was dismissed,
the remaining defendants could not provide any effective relief.
Slockish v. U.S. Dep’t of Transp., No. 21-35220, 2021 WL
5507413 (9th Cir. Nov. 24, 2021).
6
17
practice impossible to perform in the manner required
by their beliefs. Id. at 93. Regardless, the court found
no “substantial burden” because the government’s
action did not place “substantial pressure” on the
tribe to “modify [its] behavior and to violate [its]
beliefs.” Id. at 91 (quoting Kaemmerling v. Lappin,
553 F.3d 669, 678 (D.C. Cir. 2008)). In the court’s
view, RFRA posed no obstacle to the devastating oil
project. Id. at 100.8
And in Perez v. City of San Antonio, the City of San
Antonio, Texas, has barred the Lipan-Apache from a
sacred bend in the river where they have performed
religious ceremonies for centuries. No. 5:23-cv-977,
2023 WL 6629823 (W.D. Tex. Oct. 11, 2023). The
district court appropriately recognized that blocking
access to the site would substantially burden the
plaintiffs’ religious exercise. Id. at *1. But it failed to
stop the City from its plan to destroy the spiritual
ecology of the site by cutting down sacred trees and
preventing cormorants from nesting there, although
their presence is essential to Lipan-Apache religious
rituals. Id. at *3. In that case, the City has argued
the even the loss of these sacred rituals would not
impose a “substantial burden” on the Lipan-Apache’s
religious exercise, id. at *26–27, 29,9 a contention that
The tribe continues to litigate challenges under other
federal laws. Shelia Hu, The Dakota Access Pipeline: What You
Need to Know, Nat. Res. Def. Council (June 12, 2024),
https://bit.ly/3MVqPTM.
9 Although the Texas Religious Freedom Restoration Act was
at issue in Perez, federal decisions on RFRA are persuasive for
Texas courts. See Merced v. Kasson, 577 F.3d 578, 588 (5th Cir.
2009) (citing Barr v. City of Sinton, 295 S.W.3d 287, 296 (Tex.
2009)).
8
18
the Lipan-Apache have continued to fight to stop that
destruction from occurring.10
These are but a few examples from a regrettably
long list of Native American religious practices that
have been destroyed by government action.11 And
many other sacred sites face similar threat. Thacker
Pass, or Peehee Mu’huh, is a Nevada landmark sacred
to twenty-two Native American tribes. Thacker
Pass/Peehee Mu’huh, Sacred Land Film Project (Apr.
18, 2023), https://bit.ly/3TFl8NI. The land has been
used for thousands of years for various purposes,
10 On appeal, the Fifth Circuit initially opined that, although
denying access to the site would substantially burden the
plaintiffs’ religious exercise, the destruction of the site’s sacred
ecology might not substantially burden the religious practice
under Texas’s analogue of RFRA. The court reasoned that the
burden was only “indirect[]”—even though the spiritual
elements needed for those practices would be destroyed. 98
F.4th 586, 599 (5th Cir. 2024), opinion withdrawn and
superseded on reh’g, 115 F.4th 422 (5th Cir. 2024), certified
question accepted, Docket, No. 24-0714 (Tex. Sept. 6, 2024). The
Fifth Circuit has since withdrawn its opinion and certified a
question of state law to the Texas Supreme Court, Perez, 115
F.4th at 423.
11 See, e.g., Snoqualmie Indian Tribe v. FERC, 545 F.3d
1207, 1214–15, 1219 (9th Cir. 2008) (destructive operation of
hydroelectric plant rendering Native religious practices
impossible); S. Fork Band v. U.S. Dep’t of Interior, 643 F. Supp.
2d 1192, 1203, 1207–08 (D. Nev. 2009), rev’d in part on other
grounds sub nom. S. Fork Band Council of W. Shoshone of Nev.
v. U.S. Dep't of Interior, 588 F.3d 718 (9th Cir. 2009) (destructive
mining on land used by multiple Native American tribes for
prayer, healing ceremonies, vision quests, and other religious
practices); Fallon Paiute-Shoshone Tribe v. U.S. Dep’t of the
Interior, No. 22-15092, 22-15093, 2022 WL 3031583, at *4 (9th
Cir. Aug. 1, 2022) (destructive geothermal project on government
land that would make tribal religious exercise impossible
because “spiritual desecration of a sacred area does not
constitute . . . a substantial burden” (quotation omitted)).
19
including critical spiritual practices. Id. Tragically,
it is also the site of two massacres at the hands of the
United States government, and is therefore the final
resting place of many Native Americans’ ancestors.
Id.
But the sacred site is threatened by the
impending construction of a large lithium mine. Id.
Fast-tracked by the federal government along with
the Oak Flat copper mine, the Thacker Pass mine
would cause immense environmental harm and
deface this sacred land. Id. The same disregard
awaits those whose religious exercise depends on the
existence and integrity of a multitude of other
threatened sacred sites.12
Properly applied, RFRA should stand in the way
of tragedies like these. Indeed, when interpreted as
it is actually written, RFRA provides protections for
exactly this kind of destructive activity. In Comanche
12 The list of endangered sites is unfortunately long: Indian
Pass (an expanse of land sacred to the Quechan Tribe repeatedly
threatened by gold mine construction in California), Debra
Utacia Krol, Quechan Tribe Seeks Protection of Sacred Lands
with National Monument at Indian Pass, AZCentral (Feb. 26,
2024, 6:01 AM), https://bit.ly/3XGCSJI; Monument Hill and
Quitobaquito Springs (burial and ceremonial grounds sacred to
Tohono O’odham Nation harmed by border wall construction in
Arizona), Bonnie Povolny, Tohono O’odham Nation: U.S. Blasts
a Monument to Build a Wall, Cultural Prop. News (Feb. 27,
2020), https://bit.ly/47CsWp4; Ha’Kamwe’ (naturally occurring
hot spring sacred to the Hualapai Tribe threatened by proposed
lithium mine in Arizona), Maya L. Kapoor, Mining for Lithium,
at Cost to Indigenous Religions, HighCountry News (June 9,
2021), https://bit.ly/3XUdvW2; and Bears Ears (national
monument in Utah containing land sacred to many Native tribes
that various federal administrations have shrunk and
expanded), Protecting Bears Ears National Monument, Native
Am. Rts. Fund https://bit.ly/4eAGTGi (last visited Aug. 15,
2024).
20
Nation v. United States, for example, the federal
government attempted to build a training facility
directly south of Medicine Bluffs, a Comanche sacred
site. No. 08-cv-849, 2008 WL 4426621, at *3 (W.D.
Okla. Sept. 23, 2008). The facility would have
obstructed the last remaining viewscape of the sacred
area—a feature which was “central to the spiritual
experience of the Comanche people.” Id. at *17. And
the District Court for the Western District of
Oklahoma, to its credit, correctly found that this
obstruction would substantially burden the
Comanche people’s religious exercise, and ordered
that the facility be built on another location. Id. at
*17, *20. Unfortunately, other courts have failed to
ensure that this result—the result that RFRA’s text
requires—is the norm.
Under the misguided approach adopted by a bare
majority of the en banc panel below, the Apache
people’s centuries-old spiritual practices at Oak Flat
will be lost forever. This Court’s review is needed to
correct the Ninth Circuit’s disregard for these drastic
harms, to revitalize the demands of RFRA’s text, to
protect the Apache’s sacred exercise at Oak Flat, and
especially to ensure the same protections for the
spiritual practices of all Indigenous people across the
country.
21
CONCLUSION
This Court should grant the petition for certiorari
and reverse.
Respectfully submitted,
JOHN A. MEISER
Counsel of Record
MEREDITH H. KESSLER
LINDSAY AND MATT MOROUN
RELIGIOUS LIBERTY CLINIC
NOTRE DAME LAW SCHOOL
1338 Biolchini Hall of Law
Notre Dame, IN 46556
574-631-3880
jmeiser@nd.edu
October 15, 2024
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.