Amicus Curiae Brief — Apache Stronghold, Petitioner v. United States, et al.

No. 24-291

In the

Supreme Court of the United States

APACHE STRONGHOLD,

Petitioner,

v.

UNITED STATES, et al.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of A ppeals for the Ninth Circuit

BRIEF OF AMICI CURIAE PRESIDING BISHOP OF

THE EPISCOPAL CHURCH, GENERAL SYNOD OF

THE UNITED CHURCH OF CHRIST, EVANGELICAL

LUTHERAN CHURCH IN AMERICA, AND SOCIETY

OF THE UNITED METHODIST CHURCH IN SUPPORT

OF PETITIONER APACHE STRONGHOLD’S

PETITION FOR WRIT OF CERTIORARI

Kent K. A nker

Mary E. Kostel

The Presiding Bishop of the

Episcopal Church

815 Second Avenue

New York, NY 10017

Heather E. Kimmel

General Synod of the

United Church of Christ

1300 East 9th Street

Cleveland, OH 44114

K atherine L. Pringle

Counsel of Record

Bria D. Delaney

Friedman K aplan Seiler

A delman & Robbins LLP

Seven Times Square

New York, NY 10036

(212) 833-1124

kpringle@fklaw.com

Thomas A. Cunniff

Paul K. Irwin

Evangelical Lutheran

Church in A merica

8765 W. Higgins Road

Chicago, IL 60631

Counsel for Amici Curiae

333420

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . . ii

INTEREST OF THE AMICI CURIAE . . . . . . . . . . . . . 1

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . 4

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

A. The Ninth Circuit’s Narrow Test is

Not Consistent with RFRA’s Text or

This Court’s Decisions . . . . . . . . . . . . . . . . . . . . . . 8

B. Lyng Supports a Finding of Substantial

Burden Here, Where the Government’s

Action Will Effectively Prohibit

Petitioners From Accessing Their Sacred

Site and Compel Them to Abandon

Their Religious Practices . . . . . . . . . . . . . . . . . . 10

C. The Ninth Circuit’s Standard Discriminates

Against Native American Religious

Groups . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

D. An Appropriate Test Must Take Into

Account the Government’s Control Over

Native American Access to Sacred Sites . . . . . 13

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

ii

TABLE OF CITED AUTHORITIES

Page

CASES:

Apache Stronghold v. United States,

101 F.4th 1036 (9th Cir. 2024) . . . . . . . . . . . . . . . . . 4, 8

Bowen v. Roy,

476 U.S. 693 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Burwell v. Hobby Lobby Stores, Inc.,

573 U.S. 682 (2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

C.L. for Urb. Believers v. City of Chicago,

342 F.3d 752 (7th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . 6

Comanche Nation v. United States,

No. 5:08-cv-849, 2008 WL 4426621

(W.D. Okla. Sept. 23, 2008) . . . . . . . . . . . . . . . . . . . . 15

Cruz v. Beto,

405 U.S. 319 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Employment Division v. Smith,

494 U.S. 872 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 9

Greene v. Solano Cnty. Jail,

513 F.3d 982 (9th Cir. 2008) . . . . . . . . . . . . . . . . . . . . . 6

Haight v. Thompson,

763 F.3d 554 (6th Cir. 2014) . . . . . . . . . . . . . . . . . . . . . 6

iii

Cited Authorities

Page

Holt v. Hobbs,

574 U.S. 352 (2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Katcoff v. Marsh,

755 F.2d . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Lovelace v. Lee,

472 F.3d 174 (4th Cir. 2006) . . . . . . . . . . . . . . . . . . . . . 6

Lyng v. Northwest Indian Cemetery

Protective Association,

485 U.S. 439 (1988) . . . . . . . . . . . . . . . . . . 5, 7, 9, 10, 11

Mack v. Warden Loretto FCI,

839 F.3d 286 (3d Cir. 2016) . . . . . . . . . . . . . . . . . . . 6, 15

Murphy v. Mo. Dep’t of Corrs.,

372 F.3d 979 (8th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . 6

O’Lone v. Estate of Shabazz,

482 U.S. 342 (1987) . . . . . . . . . . . . . . . . . . . . . . . . 13, 14

Ramirez v. Collier,

595 U.S. 411 (2022) . . . . . . . . . . . . . . . . . . . . . . 6, 14, 15

Sherbert v. Verner,

374 U.S. 398 (1963) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Thai Meditation Ass’n of Ala., Inc. v.

City of Mobile,

980 F.3d 821 (11th Cir. 2020) . . . . . . . . . . . . . . . . . 6, 14

iv

Cited Authorities

Page

Wisconsin v. Yoder,

406 U.S. 205 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8

Yellen v. Confederated Tribes of

Chehalis Reservation,

594 U.S. 338 (2021) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Yellowbear v. Lampert,

741 F.3d 48 (10th Cir. 2014) . . . . . . . . . . . . . . . . . . 6, 14

STATUTES AND OTHER AUTHORITIES:

42 U.S.C. § 2000bb . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

42 U.S.C. § 2000bb-4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

42 U.S.C. § 2000bb(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Sup. Ct. R. 37.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Sup. Ct. R. 37.6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Stephanie Hall Barclay and Michalyn Steele,

Rethinking Protections for Indigenous

Sacred Sites , 134 Har v. L. Rev. 1294

(2021) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13, 15

Russel Lawrence Barsh, The Illusion of Religious

Fr eed o m fo r In di gen o u s Am er i can s,

65 Or. L. Rev. 363 (1986) . . . . . . . . . . . . . . . . . . . . . . 12

v

Cited Authorities

Page

Executive Order 13,007 on Indian Sacred Sites

(61 F.R. 26671, 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Dean B. Suagee, American Indian Religious

Freedom and Cultural Resources Management:

Protecting Mother Ear th’s Caretakers,

10 Am. Ind. L. Rev. 1 (1982) . . . . . . . . . . . . . . . . . . . . 12

1

INTEREST OF THE AMICI CURIAE1

Ami c i a re major P rot e st a nt denom i nat ions

representing millions of worshipers in the United States.

Amici support strong protections for the free exercise of

religion, and they were part of the campaign to secure

passage of the federal Religious Freedom Restoration Act

(“RFRA”), 42 U.S.C. § 2000bb-4 et seq. Amici believe it is

the responsibility of the United States to ensure the free

exercise of religion. The proposed destruction of sacred

Apache land will make it impossible for the Petitioners to

practice their religion and will exacerbate the historical

cruelties committed by this country against Native

Americans. Amici recognize their own contributions to

these cruelties, namely with the use of religious doctrine to

rationalize the debasement and domination of Indigenous

Peoples. Amici have a strong interest in working to right

the wrongs of the past and are committed to standing with

Native Americans in defense of their liberties.

The Most Reverend Michael Bruce Curry is the 27th

Presiding Bishop of The Episcopal Church, a hierarchical

relig ious denomination in the United States and

seventeen other countries, which includes more than 6,500

Congregations. Under the Church’s polity, he is charged

with “[s]peak[ing] God’s words to the Church and to the

world, as the representative of [the] Church.” In 2009, the

Episcopal Church adopted a resolution to repudiate and

1. Pursuant to Rule 37.6, Amici affirm that no counsel

for a party authored this brief in whole or in part and that no

person other than Amici or their counsel made any monetary

contributions intended to fund the preparation or submission of

this brief. Counsel of record for all parties received timely notice

pursuant to Rule 37.2 of the Amici’s intention to file this brief.

2

renounce the Doctrine of Discovery that originated in the

15th century, which “held that Christian sovereigns and

their representative explorers could assert dominion and

title over non-Christian lands with the full blessing and

sanction of the church.” As indicated in the resolution, the

Doctrine of Discovery led “to the colonizing dispossession

of the lands of indigenous people and the disruption of

their way of life.” In 2012, the Episcopal Church adopted

a resolution that called “upon congregations, institutions,

dioceses and the corporate offices of The Episcopal

Church . . . to help protect the sacred sites of Indigenous

Peoples.”

The General Synod of the United Church of Christ is

the representative body of the denomination of the United

Church of Christ (“UCC”), a Protestant denomination with

more than 800,000 members and nearly 5,000 churches.

The UCC has long advocated for the religious freedom of

Native Americans and other Indigenous Peoples. In 1993,

the General Synod of the UCC adopted a resolution “in

support of amendments to the American Indian Religious

Freedom Act” and noted the “great importance on access

to sacred sites” in “Native American Religions.” In 2013,

the General Synod adopted a resolution “calling for the

[UCC] to repudiate the Doctrine of Discovery which

authorized the genocide of native peoples and the theft

of native lands.” The UCC declared that the Doctrine

of Discovery “has been and continues to be a shameful

part of United States and [the UCC’s] history” and that

the “[UCC has] join[ed] with its ecumenical partners to

explore ways to compensate American Indians . . . for

lands and resources that were stolen and which are now

the United States of America.”

3

The Evangelical Lutheran Church in America

(“ELCA”) is the largest Lutheran denomination in North

America and fifth largest Protestant body in the United

States. The ELCA has over 8,000 member congregations

which, in turn, have approximately three million individual

members. In 2016, the Churchwide Assembly, the highest

legislative authority in the ELCA, voted to repudiate the

Doctrine of Discovery. In so doing, the ELCA “affirm[ed]

that this church will eliminate the [D]octrine of [D]iscovery

from its contemporary rhetoric and programs, electing to

practice accompaniment with native peoples instead of a

missionary endeavor to them, allowing these partnerships

to mutually enrich [I]ndigenous communities and the

ministries of the ELCA.” In its subsequent Declaration

to American Indian and Alaska Native People, the ELCA

confessed that it has “devalued Indigenous religions

and lifeways and ha[s] not challenged the invisibility of

Indigenous people in American society.”

The General Board of Church and Society of The

United Methodist Church (“UMC”) is responsible for

seeking to implement the Social Principles and other

policy statements of the UMC, a denomination consisting

of over 39,000 congregations and over 9 million members in

the United States, Africa, Asia, and Europe. The General

Conference is the UMC’s highest legislative body and is

authorized to speak on behalf of the entire denomination.

In 2016, the UMC through its General Conference

adopted the following Social Principles: “we urge policies

and practices that ensure the right of every religious

group to exercise its faith free from legal, political, or

economic restrictions.” In 2024, the General Conference

adopted “We join with indigenous peoples and tribes to

demand that their rights to exercise national sovereignty

be upheld by governments and courts. We support the

4

efforts of indigenous people to revitalize their languages

and cultures in the face of concerted efforts to assimilate

them into mainstream societies. We acknowledge that

indigenous, native, and aboriginal peoples are entitled

to control their land, water and other resources, and we

decry any attempts to forcibly seize these resources or to

forcibly remove indigenous people from their territories.”

Additionally, as adopted in 2024, “We urge governments,

businesses, churches, and other institutions in civil society

to take concerted action to preserve and protect the

rights of all religious people. . . We endorse the rights

of all religious people to practice their faith, free from

unjustified and unnecessary legal, political, and financial

restraints.”

SUMMARY OF ARGUMENT

The Ninth Circuit has reached the startling conclusion

that the Government’s decision to destroy land sacred

to the Western Apache, without which their religious

practices cannot continue, is not a “substantial burden”

on religion. The Ninth Circuit reads RFRA to exclude

most federal land decisions. Apache Stronghold v. United

States, 101 F.4th 1036 (9th Cir. 2024). This narrow reading

contravenes the language of the statute, expressed

intentions of Congress, and decisions by this Court and

other Circuits. This Court should grant certiorari to

clarify RFRA’s substantial burden test, an issue that has

divided the Circuits and is vitally important to all people

of faith.

“Substantial burden” should be interpreted according

to its ordinary and common-sense meaning. Congress did

not limit the test by reference to prior case law, or allow

the exclusion of whole areas of federal action. Congress

5

made all federal law subject to RFRA, consistent with

Congress’s intention to broadly protect religions liberty.

The “Constitution does not permit government to

discriminate against religions that treat particular

physical sites as sacred.” Lyng v. Northwest Indian

Cemetery Protective Association, 485 U.S. 439 (1988). The

Ninth Circuit’s reading of RFRA does just that. Many of

the sacred sites essential to Native American religion are

on federal land, a consequence of this country’s history

of divestment and persecution of Indigenous people.

By exempting federal land decisions from RFRA, the

Ninth Circuit test uniquely discriminates against Native

American religions that depend on access to federal lands.

The substantial burden test should take into account

Government control of Native American sacred sites. This

Court has already held that when Government controls the

resources required for religious practice, barring access

to those resources is a substantial burden on free exercise.

The same must be true for federal lands. This Court should

make clear that the Government substantially burdens

the free exercise of religion when it bars or substantially

limits access to sacred land on which Native American

religions depend.

ARGUMENT

Under any ordinary understanding of the words,

Petitioners face a “substantial burden” on the exercise

of their religion at the hands of the Government. The

Government proposes to transfer Oak Flat, the sacred site

necessary to Western Apache religious practice, to private

owners who intend to mine it, and over time prohibit

visitors and entirely collapse the site, permanently and

6

irrevocably preventing the Apache religious groups

from continuing their ancient religious practices. The

Government’s plan would prevent Apache religious groups

from accessing land that is fundamental to their worship,

thereby destroying their religious practices entirely.

There can be no question that the complete prevention of

Petitioners’ religious practices is a “substantial burden”

on religion, as those words are commonly understood.

Splitting from this Court, other Circuits, and even

itself, the Ninth Circuit rejected this common-sense

understanding. 2 It held that the “substantial burden”

2. This Court, the Ninth Circuit, and six other Circuits have

held that prohibiting access to or preventing religious exercise is a

“substantial burden” on the free exercise of religion. See Ramirez

v. Collier, 595 U.S. 411, 416 (2022) (holding that the state’s refusal

to allow petitioner religious touch or audible prayer “substantially

burdens his exercise of religion” because “he will be unable to

engage in protected religious exercise”); Greene v. Solano Cnty.

Jail, 513 F.3d 982, 988 (9th Cir. 2008) (“We have little difficulty

concluding that an outright ban on a particular religious exercise

is a substantial burden on that religious exercise”); see also, e.g.,

Yellowbear v. Lampert, 741 F.3d 48, 55 (10th Cir. 2014) (Gorsuch,

J.); Haight v. Thompson, 763 F.3d 554, 565 (6th Cir. 2014); Lovelace

v. Lee, 472 F.3d 174, 187-88 (4th Cir. 2006); Murphy v. Mo. Dep’t of

Corrs., 372 F.3d 979, 988 (8th Cir. 2004); c.f. C.L. for Urb. Believers

v. City of Chicago, 342 F.3d 752, 761 (7th Cir. 2003); see also Thai

Meditation Ass’n of Ala., Inc. v. City of Mobile, 980 F.3d 821, 830-31

(11th Cir. 2020). While these cases arise under the Religious Land

Use and Institutionalized Persons Act (“RLUIPA”), the “substantial

burden” language in RLUIPA imposes the “same standard” as

RFRA. Holt v. Hobbs, 574 U.S. 352, 356-58 (2015); see also Mack v.

Warden Loretto FCI, 839 F.3d 286, 304 n. 103 (3d Cir. 2016) (“[T]he

two statutes are analogous for purposes of the substantial burden

test.”). The same standard is particularly applicable here, where

the government controls the resources required for the Petitioners’

religious practice. See infra. Point D.

7

test in RFRA generally excludes the government’s

disposition of its own land, no matter how serious the

impact on religion. The majority relied on this Court’s

decision in Lyng v. Northwest Indian Cemetery Protective

Association, a pre-RFRA Free Exercise case, as standing

for the proposition that a disposition of government real

property does not generally constitute a substantial

burden to those using the land. Apache Stronghold, 101

F.4th at 1055 (citing Lyng, 485 U.S. at 449-53). It held

that Congress, in adopting the “substantial burden” test

in RFRA, was employing a term of art defined by this

Court through the debate between Justices Scalia and

O’Connor in Employment Division v. Smith. Id. at 105961 (citing Employment Division v. Smith, 494 U.S. 872

(1990)). On the curious theory that the Justices in Smith

had not indicated that Lyng “was inconsistent with the

substantial burden test,” the Ninth Circuit concluded

that Lyng constrains the RFRA definition of “substantial

burden.” Id. at 1060-61.

The Ninth Circuit thus effectively removed from

RFRA federal land decisions impacting Native American

religious practices. The absurd result of this removal is

that even though the Government’s proposed action will

destroy the Petitioners’ religion, it does not, according

to the Ninth Circuit, constitute a substantial burden on

religion. Under RFRA, the Government could not, without

a compelling interest, impose fines on Petitioners for

conducting religious rites. Cf. Wisconsin v. Yoder, 406

U.S. 205 (1972) (fines against Amish for keeping students

home from high school violate First Amendment in light

of impact on Amish religion). Yet, according to the Ninth

Circuit, RFRA offers no protection if the Government

destroys the land necessary to those rites, eliminating

the Petitioners’ ability to practice their religion.

8

A. The Ninth Circuit’s Narrow Test is Not Consistent

with RFRA’s Text or This Court’s Decisions

There is no indication that Congress intended to

define “substantial burden” so narrowly or to depart from

a common-sense understanding of the term. Congress

did not define “substantial burden” in RFRA. It did not,

contrary to the Ninth Circuit’s interpretation, link the

term to any particular case or cases, or otherwise indicate

that it considered the term to be a term of art. Congress

referenced prior case law in stating that one purpose

of RFRA was “to restore the compelling interest test

as set forth in Sherbert v. Verner, 374 U.S. 398 (1963),

and Wisconsin v. Yoder, 406 U.S. 205 (1972).” 42 U.S.C.

§ 2000bb(b). But Congress did not include any such

reference with respect to the substantial burden test. Id.;

see Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 714

(2014) (“When Congress wants to link the meaning of a

statutory provision to a body of this Court’s case law, it

knows how to do so.”). 3

3. As noted by the dissenting judges below, Congress stated

that RFRA has two purposes: (1) “to restore the compelling

interest test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963),

and Wisconsin v. Yoder, 406 U.S. 205 (1972), and to guarantee

its application in all cases where free exercise of religion is

substantially burdened,” and (2) “to provide a claim or defense

to persons whose religious exercise is substantially burdened by

government.” 42 U.S.C. § 2000bb(b); Apache, 101 F.4th at 1134. The

references to Sherbert and Yoder are sources for the compelling

interest test only; Congress did not link the substantial burden

test to those cases. See Apache, 101 F.4th at 1136-37 (Murguia,

J., dissenting).

9

The caselaw does not treat “substantial burden” as a

term of art. The phrase does not even appear in Sherbert

or Yoder. None of this Court’s Free Exercise cases define a

“substantial burden” test. The consistent usage and clear

definition that are the hallmarks of a term of art are simply

missing from this Court’s Free Exercise jurisprudence.

See Yellen v. Confederated Tribes of Chehalis Reservation,

594 U.S. 338, 354 (2021) (“Ordinarily . . . this Court

reads statutory language as a term of art only when the

language was used in that way at the time of the statute’s

adoption.”).

This Court’s decision in Lyng, on which the Ninth

Circuit relied so heavily, is one step even further removed.

Lyng, like the cases before and after it, does not use the

term “substantial burden.” 485 U.S. 439. Congress made

no mention of Lyng in RFRA. Nor did Congress indicate

any intention to exempt land-management decisions from

RFRA.

To the contrary, Congress made all implementations

of federal law subject to RFRA, foreclosing a blanket

exemption for federal land management. Congress’s

intention in passing RFRA was to provide “very broad

protection for religious liberty,” going “far beyond what

this Court has held is constitutionally required” in its

pre-Smith decisions. Hobby Lobby, 573 U.S. at 693, 706.

The Ninth Circuit’s restrictive approach does the opposite,

using pre-Smith decisions to narrow the scope of RFRA’s

language beyond recognition.

10

B. Lyng Supports a Finding of Substantial Burden

Here, Where the Government’s Action Will

Effectively Prohibit Petitioners From Accessing

Their Sacred Site and Compel Them to Abandon

Their Religious Practices

The Ninth Circuit also dramatically over-reads Lyng.

Even if Lyng’s constitutional analysis does inform the

RFRA “substantial burden” test, its holding supports

rather than refutes the Apache Petitioners’ position.

This Court in Lyng held that government land

decisions that may incidentally make it more difficult

to practice religion are not subject to scrutiny under

the First Amendment when they have no “tendency to

coerce individuals into acting contrary to their religious

beliefs.” Lyng, 485 U.S. at 450-51 (emphasis added). The

Court approved the building of a road on land sacred to

Native Americans where the Government had taken pains

to place the road “as far as possible from the sites” used

for spiritual activities, so that “[n]o sites where specific

rituals take place were to be disturbed.” Id. at 443, 454.

Justice O’Connor, writing for the majority, recognized that

the road might “diminish the sacredness of the area” and

“create distractions” that could interfere with religious

experiences, but it would not prevent access entirely. Id. at

448. The Court therefore held that the building of a road

on publicly owned land, like the use of a Social Security

number in Bowen v. Roy, 476 U.S. 693 (1986), would not

pose a Free Exercise problem because the Government

would not be coercing the plaintiffs into violating their

religious beliefs. Id. at 449.

At the same time, Justice O’Connor was clear that the

“Constitution does not permit government to discriminate

11

against religions that treat particular physical sites as

sacred, and a law prohibiting the Indian respondents from

visiting the Chimney Rock area” altogether “would raise

a different set of constitutional questions.” Id. at 453.

That is precisely what the transfer of Oak Flat will

do. By Government action, the Western Apache will be

coerced into abandoning religious practices that depend

on access to Oak Flat. By Government action, the Western

Apache will be coerced into acting contrary to their

religious obligation to care for and interact with their

most sacred sites. The Government’s proposed transfer of

Oak Flat to Resolution Mining – which plans to eventually

prohibit all visitors to Oak Flat and collapse and destroy

the area – prohibits Petitioners from their sacred land

altogether. Unlike the road in Lyng, the Government’s

proposal will not incidentally diminish religious activity,

it will bar it entirely and permanently. Even under the

Lyng decision, the proposed transfer will substantially

burden Petitioners’ free exercise of their religion.

C. The Ninth Circuit’s Standard Discriminates

Against Native American Religious Groups

The Ninth Circuit’s novel interpretation of RFRA

harshly discriminates against Native American religious

groups.

Petitioners recount in their Petition the tragic history

by which the federal government gained control over

Apache sacred land. That history includes broken treaties,

the organized massacre of Apache people, the removal

of Apaches from their land, and the delivery of that land

to metal miners. It also includes the systematic attempt

to demolish Native American religious and cultural

12

practices, including by forcibly removing hundreds of

Apache children from their families. (Petition for Cert.

at 12-13). Amici are conscious of their own role in this

history and the use of Christian doctrine to dispossess

Indigenous people.

The result is that the Western Apache no longer live

on the lands encompassing their sacred spaces. Apache,

101 F.4th at 1130 (Murguia, J., dissenting). Those sacred

spaces are held and controlled by the federal government.

The Apache are not alone in this. Many remaining Native

American religious sites are on federal land. See Russel

Lawrence Barsh, The Illusion of Religious Freedom for

Indigenous Americans, 65 Or. L. Rev. 363, 396 (1986).

Western Apache religious practices, and the religious

practices of many Native Americans, are entirely and

inextricably bound to these federally controlled sacred

sites. A common understanding in many Native American

religions is “that land is itself a sacred, living being.”

Lyng, 485 U.S. 461 (Brennan, J., dissenting) (citing Dean

B. Suagee, American Indian Religious Freedom and

Cultural Resources Management: Protecting Mother

Earth’s Caretakers, 10 Am. Ind. L. Rev. 1, 10 (1982)). “[L]and,

like other living things, is unique, and specific sites possess

different spiritual properties and significance.” Id. Many

Indigenous religious adherents “regard creation as an

on-going process in which they are morally and religiously

obligated to participate” through ceremonies and rituals

tied to sacred sites. Id. at 460. These ceremonies cannot be

conducted in a different location; barring or destroying the

sacred site is effectively a termination of the religion. See

Stephanie Hall Barclay and Michalyn Steele, Rethinking

Protections for Indigenous Sacred Sites, 134 Harv. L.

Rev. 1294, 1304-06 (2021).

13

Native American religious groups thus face the unique

problem that the Government has divested them of the

sacred sites at the center of their religion, leaving them

beholden to the Government for their continued ability

to practice their religion. Id. at 1297. The Ninth Circuit

framing ignores the nature of land-based religions, and

thus privileges traditional Abrahamic religions and

discriminates against Indigenous religions. If allowed

to stand, the decision will disproportionately harm the

Native American religions that depend on the Government

to grant access to the sacred spaces where they have,

since before the founding of this nation, performed their

religious rituals.

D. An Appropriate Test Must Take Into Account

the Government’s Control Over Native American

Access to Sacred Sites

This Court’s precedents make clear that when the

Government has control over the resources required for

the practice of religion, denial of access to those resources

will constitute a substantial burden on the free exercise

of religion.

In Cruz v. Beto, for example, this Court held that a

Buddhist inmate properly stated a cause of action when

he alleged that the prison denied him access to the prison

chapel and prohibited him from corresponding with his

religious advisor. 405 U.S. 319, 322 (1972) (per curium).

Similarly, in O’Lone v. Estate of Shabazz, prison

officials required Muslim prisoners to work on Fridays,

preventing them from attending Friday congregational

services required by their religion. 482 U.S. 342, 347

14

(1987). The Court held that the Muslim prisoners properly

stated a Free Exercise claim based on denial of access to

religious practices. Id. at 350-52.

In Katcoff v. Marsh, the Second Circuit held that

providing a military chaplaincy where the Government

dictates the physical location of service members was

required by the Free Exercise Clause. 755 F.2d 223 (2d

Cir. 1985). It found that in “situation[s] such as military

service, where the Government regulates the temporal and

geographic environment of individuals,” such individuals

“would be unable to engage in the practice of their faiths”

unless the Government allows the “religious services to be

conducted with the use of government facilities.” Id. at 235.

In a series of modern cases, this Court and others

have recognized that when the Government controls

access to space required for religious practices, as in

prisons or the military, the denial of such access is a

substantial burden. See Ramirez v. Collier, 595 U.S. 411

(2022) (barring religious advisor from death chamber

substantially burdened religious exercise); Yellowbear v.

Lampert, 741 F.3d 48 (10th Cir. 2014) (Gorsuch, J.) (refusing

to escort prisoner to a sweat lodge is a substantial burden);

Greene v. Solano County Jail, 513 F.3d 982 (9 th Cir. 2008)

(refusing to escort prisoner to group worship services is

a substantial burden); see also Thai Meditation Ass’n of

Alabama v. City of Mobile, 980 F.3d 821, 830-31 (11th Cir.

2020) (regulation that “completely prevents the individual

from engaging in religiously mandated activity” would

plainly be a substantial burden).4

4. These cases were decided under the Religious Land Use

and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. §2000bb

15

In the same way, because the Government has control

of the resources Native Americans require for the practice

of their religion, it substantially burdens their free

exercise of religion when it bars access to or destroys

those resources. See Comanche Nation v. United States,

No. 5:08-cv-849, 2008 WL 4426621 (W.D. Okla. Sept.

23, 2008) (Government’s plans to build a warehouse on

federal land near a Native American sacred site imposed

a substantial burden by denying reasonable opportunity

to engage in religious activity). Accordingly, under RFRA

the Government should be required to demonstrate a

compelling interest and effort to minimize the impact of

such burden.

Finally, this standard would not impose a religious

veto over federal land decisions, as the Government

has argued. The compelling interest test has long been

recognized as an appropriate means for resolving the

tension between Government action and First Amendment

rights. Furthermore, federal land decisions are already

subject to various requirements to minimize impacts to

the environment, watersheds, and endangered species.

See Barclay & Steele, Rethinking Protections, 134 Harv.

L. Rev. at 1350-51. The Government also has committed

itself to accommodating Native American sacred sites.

Executive Order 13,007 on Indian Sacred Sites (61 F.R.

26671, 1996). Subjecting federal land management to

RFRA and requiring the Government to minimize or

justify the destruction of Native sacred sites would not

et seq., the “sister statute” of RFRA. Ramirez, 595 U.S. at 424; see

Holt, 574 U.S. at 356-58 (RLUIPA and RFRA involve the “same

standard”); see also Mack, 839 F.3d at 304 n.13 (“[T]he two statutes

are analogous for purposes of the substantial burden test.”).

16

materially change the Government’s ability to use federal

lands to serve important purposes.

CONCLUSION

For the reasons stated above, this Court should grant

the Petition for Writ of Certiorari.

Respectfully submitted,

Kent K. A nker

Mary E. Kostel

The Presiding Bishop of

the Episcopal Church

815 Second Avenue

New York, NY 10017

Heather E. Kimmel

General Synod of the

United Church of Christ

1300 East 9th Street

Cleveland, OH 44114

K atherine L. Pringle

Counsel of Record

Bria D. Delaney

Friedman K aplan Seiler

A delman & Robbins LLP

Seven Times Square

New York, NY 10036

(212) 833-1124

kpringle@fklaw.com

Thomas A. Cunniff

Paul K. Irwin

Evangelical Lutheran

Church in A merica

8765 W. Higgins Road

Chicago, IL 60631

Counsel for Amici Curiae