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More than a land dispute

Apache challenge to mining claim holds ramifications for believers of all faiths


A tribal councilman addresses Apache activists at a rally to save Oak Flat at the U.S. Capitol in 2015. Associated Press/Photo by Molly Riley (file)

More than a land dispute

Native Americans in Arizona are going head-to-head with a mining company in a case that could have significant implications for all religions—including Christianity. If the Native Americans win, it could maintain a broad interpretation of a federal law protecting religious liberty.

Apache Stronghold, a nonprofit Native American umbrella group, on Tuesday asked the 9th U.S. Circuit Court of Appeals to block the U.S. government from transferring land to a British-Australian mining company. Resolution Copper wants to extract copper from Oak Flat, an approximately 7-square-mile tract of rugged canyon land east of Phoenix. For all of recorded history, Apaches have used the site for religious ceremonies, the gathering of medicinal plants and animals, and prayer. Without action, the company on March 16 will trade 6,000 acres of land elsewhere for this tract.

A final environmental impact statement released earlier this year found the proposed mine would destroy Oak Flat. Resolution Copper plans to tunnel below the ore, fracture it with explosives, and remove it, leaving behind a crater approximately 2 miles across and 1,100 feet deep. The company said the mine could provide up to 25 percent of the nation’s demand for copper, which manufacturers use in products such as mobile devices, medical equipment, and clean energy technologies. The company claims the project would also provide roughly 3,700 jobs.

The case centers on the Religious Freedom Restoration Act (RFRA), a 1993 federal law that requires the government to show a compelling interest and use the least restrictive means available when burdening religious exercise.

On Feb. 12, a federal judge denied Apache Stronghold’s request to stop the government temporarily from proceeding with the land transfer. U.S. District Judge Steven P. Logan ruled the destruction of a sacred site was not the type of “burden” that RFRA addressed.

“Even where land is physically destroyed, the government action must still fall within … two narrow situations” to violate the First Amendment, Logan said: The government would have to coerce a group into breaking its beliefs or deny in a targeted way “rights, benefits and privileges enjoyed by other citizens.”

Becket attorney Luke Goodrich, who represents Apache Stronghold, noted the ruling could create problems down the road for religious practitioners if the 9th Circuit lets it stand.

“The lower courts here would gut RFRA in profound ways, threatening both the Native Americans in this case and people of all faiths,” he said. “If the government can take the Notre Dame of the Apaches and completely destroy it, you can rest assured that the same government can take your church building.”

But the government may be rethinking its position on the mine. Stephanie Barclay, a Notre Dame law professor who filed a brief on behalf of the National Congress of American Indians, said the U.S. Forest Service withdrew the project’s required environmental impact report on Monday afternoon. The Forest Service indicated it needed more time to consult with tribal leaders and anticipated this could take several months, likely delaying a resolution of the case.


Steve West

Steve is a legal correspondent for WORLD. He is a graduate of World Journalism Institute, Wake Forest University School of Law, and N.C. State University. He worked for 34 years as a federal prosecutor and is now an attorney in private practice. Steve resides with his wife in Raleigh, N.C.

@slntplanet

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