Litigation Update: Apache Stronghold v. United States Goes En Banc at the Ninth Circuit

This case presents an intersection between Native Americans’ free exercise rights and the Government’s power to regulate its territories.
In 2014, Congress enacted the Southeast Arizona Land Exchange and Conservation Act. The Act effectuated a trade of land between Resolution Copper, a mining company, and the federal government. Resolution Copper gave the government 5,300 acres of environmentally sensitive and culturally important lands. In exchange, the Government gave Resolution Copper 2,400 acres containing the third largest copper deposit in the world.
Within the 2,400-acre tract of land is Chi’chil Bildagoteel, or “Oak Flat”, a place of central spiritual importance to the Western Apache. It is the direct corridor to their Creator and the site of numerous religious ceremonies. If Resolution Copper is given the land, the religious site will be destroyed and turned into a mine.
Apache Stronghold sued to prohibit the land trade under the Religious Freedom Restoration Act (RFRA), the Free Exercise Clause, and under a theory that the trade violates the Government’s trust obligation to the Apaches. The United States argued that pursuant to its constitutional authority over the territories and existing caselaw that the trade was lawful.
The District Court rejected a preliminary injunction and the Ninth Circuit Court of Appeals affirmed that judgment by a 2-1 vote. Judge Patrick Bumatay dissented. And the Ninth Circuit agreed to rehear the case en banc this month.
Apache Stronghold again presses its three claims. Centrally, it argues that the United States has substantially burdened the Apaches’ religious exercise by authorizing the transfer and destruction of Oak Flat-rendering their religious exercise impossible.
The United States argues a line of precedent-culminating in Employment Division v. Smith-bar Apache Stronghold’s claims. The Government particularly relies on Lyng v. Northwest Cemetery Protective Association, which permitted the U.S. Forest Service to develop a road through government land that would traverse a tribal holy site, stating, “Whatever rights the Indians may have to the use of the area, however, those rights do not divest the Government of its right to use what is, after all, its land.” The United States argues that RFRA and the remainder of Apache Stronghold’s claims do not undermine the holding in Lyng.
At stake is a religious site of central importance to a native tribe that cannot be replaced and development of the third largest copper deposit in the world.
To discuss this exciting en banc hearing, the Federalist Society is pleased to host an excellent debate team. On behalf of Apache Stronghold, Luke Goodrich, VP and Senior Counsel for Becket, who is serving as lead counsel for Apache Stronghold. And defending the United States’ position, Anthony J. Ferate, who filed an Amicus Brief on behalf of the Arizona Chamber of Commerce and Industry in Support of Appellee United States.
Featuring:
Luke Goodrich, Vice President & Senior Counsel, Becket
Anthony J. Ferate, Of Counsel, Spencer Fane LLP
Moderator: Adam Griffin, Law Clerk, US District Courts
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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

[@OfficeofChiefCornerstone]

Why doesn't the Tribe use article 5 of the Indian Civil Rights Act? That is their Eminate Domain Power. Which is an Equitable Federal Power which is an implied waiver of immunity, PennEast Pipeline, along with usc 25 sec. 1304 (a) (9) Obstruction of Justice.

[@OfficeofChiefCornerstone]

Also sounds like an easement that would have to be compensated under the Constitution, which the Apache could use toward the Tribe's use of Eminate Domain