October 18, 2024

USET SPF has joined the amicus brief drafted by the Native American Rights Fund (NARF) in support of Apache Stronghold's petition for writ of certiorari to the U.S. Supreme Court in Apache Stronghold v. United States. Below is information about the case.

Use of the Religious Freedom Restoration Act (RFRA) to prevent development harming sacred sites.

The federal government intends to transfer Oak Flat, a sacred site located on federally-owned land within a national forest, to Resolute Copper, an international mining company. Apache Stronghold challenged the land transfer under RFRA and other legal authorities. The Ninth Circuit ruled against Tribal interests, holding the destruction of Oak Flat and the resulting inability of the Apache to practice their religion does not "substantially burden" their religious exercise and is therefore not covered by RFRA. Apache Stronghold filed a petition for writ of certiorari.

An important issue in this litigation is whether destruction of and/or preventing access to a religious site is a substantial burden on religious exercise for purposes of RFRA, where the court acknowledged destruction would prevent the Apache from engaging in their religious exercise but nonetheless said the effects on Apache religious practices did not constitute an attempt to coerce Apache people to act in violation of their beliefs.

Tribal Nations often rely on process-based statutes such as the National Historic Preservation Act and the National Environmental Policy Act in litigation to protect sacred sites. If Tribal interests win in this case, Indian Country may have RFRA as a tool for preventing development that harms sacred sites.

USET reviewed, provided feedback on, and joined NARF’s amicus brief. USET has supported the Oak Flat protection efforts in the past, as well.

Apache Stronghold v. United States, 21-15295, before the U.S. Court of Appeals for the Ninth Circuit, and now pending on petition for writ of certiorari to the U.S. Supreme Court, 24-291.

For more information, please contact Liz Malerba, USET SPF Director of Policy and Legislative Affairs, or Katie Klass, USET SPF General Counsel.

Established in 2014, the USET Sovereignty Protection Fund (USET SPF) is a non-profit, inter-Tribal organization advocating on behalf of thirty-three (33) federally recognized Tribal Nations from the Northeastern Woodlands to the Everglades and across the Gulf of Mexico. USET SPF is dedicated to promoting, protecting, and advancing the inherent sovereign rights and authorities of Tribal Nations and in assisting its membership in dealing effectively with public policy issues.