Student Voices
By: Adithi Vimalanathan
This reflection was written by Fordham University undergraduate student Adithi Vimalanathan, FCRH ’26 as part of the The Chynn Undergraduate Ethics Summer Research Scholarship.
After two months of prayerful gathering and travel from Washington state to Washington D.C., members of Apache Stronghold gathered on the steps of the Supreme Court on September 11, 2024 in a final effort to protect Oak Flat – a region of the Tonto National Forest ancestrally sacred to many Arizonan tribes including the Apaches. The appeal is their last legal defense to stop mining giant Resolution Copper from panel cave mining Oak Flat for copper deposits. The technique would result in a crater up to 1.8 miles wide and 950 feet deep, destroying a tribal ancestral site and making Apache religion impossible for the future. (Lovett, 365)
Known as Chi’chil Biłdagoteel in Apache, Oak Flat is a sacred site to the Apache where Ga’an, messengers who connect the Creator Usen with Apaches, reside. Therefore, it is the only site where Sunrise, Holy Ground, and sweat lodge ceremonies can take place. (National Indigenous Women’s Research Center) The appeal seeks to preserve Oak Flat, the spiritual center and residence of Apache deities. Without Oak Flat, irremediable harm to Apache culture, religion, and community would follow.
Tribal religious land litigation is hardly new to the American legal landscape. Under corporate threats to holy mountains, rivers, and flats, tribes have taken to the courts. Paramount to their religion, these places are the residences of their deities. Because these venerated terrains often fall within the borders of national parks, tribes often file claims against federal entities and the corporate interests they endorse under the Religious Freedom Restoration Act, or RFRA for short.
A landmark piece of religious liberty legislation, the Religious Freedom Restoration Act (1993) was a reaction to Native religious infringement in Employment Division v. Smith. Two members of the Native American Church were fired from a rehabilitation clinic after ingesting peyote, a hallucinogenic central to the Church’s traditions. After being denied unemployment assistance for work-related misconduct, the pair sued the Oregon Department of Human Resources for violations of religious exercise. When the case reached SCOTUS, it ruled that religious objections do not excuse practitioners from obeying “neutral and generally applicable” laws (United States, Supreme Court).
In response, a multifaith coalition of religious liberty organizations and an overwhelmingly bipartisan Congress came together to pass RFRA in 1993. RFRA aimed to reinstate strict scrutiny for laws that restrict religious exercise, regardless of whether they are generally applicable or not. Federal agencies can now only pass a law that burdens religious exercise if they “(1) furthers a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” (congress.gov)
Arizona is home to two of the most prominent Native land cases of the past century: Apache Stronghold v. United States (discussed above) and Navajo Nation v. United States Forest Service. Do’okooslid (Navajo for “shining on top”), or Humphrey’s Peak, in the San Francisco Peaks mountain range, is revered by the Navajo Nation as one of four sacred mountains, the home of some of their deities, and as an ancestral boundary marker. Situated within the Coconino National Forest, it is also the site of Arizona Snowbowl, a skiing corporation that exists under clearance by the United States Forest Service. In 2009, the Snowbowl was given approval to use treated sewage in artificial snowmaking; in Navajo Nation, six tribes including the Navajo sued, holding the effluent sewage as a desecration of their sacred mountain. (Sacred Land)
As of now, both cases have reached the Ninth Circuit Court of Appeals and have received two hearings; each case was ruled in favor of the government entity and the corporate interest associated with it. Navajo Nation was denied a hearing by the Supreme Court and Apache Stronghold just submitted its appeal to SCOTUS on September 11, 2024.
In both cases, the Circuit court ruled that Resolution Copper and Arizona Snowbowl’s land-altering measures were not deemed a substantial burden on the Apache and Navajos’ religious experience, ultimately rejecting tribal RFRA claims. Despite the fact that Oak Flat would cease to exist and Humphrey’s Peak would have effluent sewage on a place of worship, courts dismiss clearly articulated harms and sacred resource protections. In a country where religious freedom is a staunchly held political and cultural value, how is it that Native religious freedom cases are so aggressively shut down in federal courts?
Striking but hardly new, patterns of injury outlined in Navajo Nation and Apache Stronghold are squarely in line with precedent in federal case law. Supreme Court cases such as Lyng v. Northwest Indian Cemetery Protective Association (1989) and Employment Div. v. Smith (1989) along with D.C. circuit case Wilson v. Block (1983) dismiss concerns of Native religious violation, demonstrating an incomplete understanding or perhaps a deliberate undermining of tribal religious frameworks frequently in favor of corporate interests.
In these cases and numerous others, RFRA, only thirty-five years old, has failed to protect an ethno-religious minority whose extensive history of land seizures, genocide, and cultural erasure is the foundation for the United States itself. The legal precedent is grave and continues a federal history of Native American land seizure as old as the United States itself.
In light of this pattern and history, it becomes necessary to rethink the role of the court as an uninvolved, objective remediator. The string of legal defeats begs the question – how does the court, which presents itself as an impartial adjudicator, allow for this systemic and entrenched assault on Native American religious liberty?
In Navajo Nation and Apache Stronghold, we see that the court weakens and abstracts tribal claims of religious harm at a granular level. By deliberately misunderstanding tribal values and demonstrating a preference for values and rhetoric of their offenders, the Ninth Circuit makes it all too easy to characterize Native claims as nonsevere and thus ineligible for RFRA protection.
The role of the court can be seen in how it interacts with the two dialects facing off in the courtroom. Corporations with government entities present environmental impact statements and corporate proposals that leverage technical, field-specific jargon. Because corporations and federal entities have their own terminology that is often already adapted for a courtroom (these agencies follow similar bureaucratic logic, as they must comply with legal regulations and have legal departments), they articulate defenses in terms are quantified, measured, numerical – making for an arguments of land-desecration with connotations of defensibility.
Up against this is the language of religious testimony and narrative – which is staunchly opposed. Apache and Navajo tribal testimony is communal, intimate, and ritualistic. In court, tribes narrate the importance of these sacred sites in personal terms; the significance of these sacred sites and rituals are invaluable. They simply cannot be measured in numerical or quantitative terms.
Moreover, by its nature, religion presumes no need for proof – a fact that courts must comply with. Established by United States v. Ballard, courts legally cannot require proof that a claimant’s religious beliefs are true; they can only question the sincerity of those beliefs (LRRP, 12). The Ninth Circuit has not determined the truth of or demeaned the sincerity of these claims. What then becomes the means of denying religious freedom to these tribes?
Proof, though not required, is weaponized against the tribes when the court chooses to assess religious harm through quantification and measure – a characterization that tribes assert are irrelevant in the context of cultural values of interconnectedness. This preference for prood also sits squarely in line with the language of the government-corporate entity. In the Navajo Nation en banc decision, for example, the court notes “at the heart of their [Navajo Nation] claim is the planned use of recycled wastewater, which contains 0.0001% human waste,” (10040) and “The recycled wastewater to be used for snowmaking is classified as “A+” by the Arizona Department of Environmental Quality (“ADEQ”).” (10045)
This quote from the majority Court opinion signals a preference not just for the argument that the USFS and the Snowbowl present but also for their narrative and rhetoric. The same due regard is not presented to tribal beliefs and narrative — it is in Judge William A. Fletcher’s dissent that similar attention is paid to tradition and narrative.
Fletcher’s dissent cites the court testimonies of three Navajo men: medicine man Norris Nez, medicine man trainee Larry Foster and practitioner Steven Begay.
“In Foster’s words, “[I]f someone were to get a prick or whatever from a contaminated needle, it doesn’t matter what the percentage is, your whole body would then become contaminated. And that’s what would happen to the mountain.” In Nez’s words, “All of it is holy. It is like a body. It is like our body. Every part of it is holy and sacred.” In Begay’s words, “All things that occur on the mountain are a part of the mountain, and so they will have connection to it. We don’t separate the mountain.”” (10119)
It becomes clear from this testimony that considerations of filtration or containment of affluent sewage to a party of the mountain are unimportant to tribal practice. The cultural value of interconnectedness renders these numerical standards obsolete. If the Court gave due consideration to the narrative and cultural values that the Navajo presented it to them in, a dramatic minimization of tribal rights might not have taken root.
The privilege given to governmental and corporate rhetoric is one of many ways that the Court undermines Native American RFRA claims, but it is perhaps the most implicit and striking. Wheedling throughout these decisions is an abstraction at a minute level – one that goes unchallenged when the court presents itself as an impartial arbitrator of facts and law. Almost ten years later in Apache Stronghold, Navajo Nation was cited as a predecessor case and its standard of religious infringement was used again to measure violations against the Apaches. Ultimately, the Court destabilizes Native religious narrative and cements the federal, corporate voice as the voice of record, as represented through both courts themselves and through the federal entities being sued.
It’s worth noting that in addition to being key sites of religious tradition, Do’okooslid and Chi’chil Biłdagoteel are key geographics in historical tribal territory. Do’okooslid is the western mountain for the Navajo, one of four that amarked out their ancestral territory (Sacred Land). And before being forcefully relocated to the San Carlos Apache reservation, many Apache peoples lived on Oak Flat (Native American Women’s Resource Center).
Navajo Nation and Apache Stronghold thus usher a federal history of land seizure, genocide and cultural into the current moment. Rapidly, even with minority legal protection through RFRA, courts have established new ways to legalize Native cultural land seizure in the twenty-first century.
Federal denials of Native American RFRA claims are more than legal decisions or destabilization of tribal religious narrative. They are a present continuation of American destruction of Native sovereignty, land, and culture – a grave hypocrisy for a nation that claims immense commitment to religious and civil liberties for all people.
Works Cited
Apache Stronghold v. United States, cdn.ca9.uscourts.gov/datastore/opinions/2024/03/01/21-15295.pdf. Accessed 20 Sept. 2024.
Center for Gender & Sexuality Law Columbia University. “Defining ‘Religion’: Demonstrating Religious Belief in Federal Litigation.” The Law, Rights & Religion Project, The Law, Rights & Religion Project, 9 Sept. 2024, lawrightsreligion.org/our-work/religiosity.
Court of Appeals for the Ninth Circuit. Navajo Nation v. United States Forest Service. 12 Mar. 2007.
Court of Appeals for the Ninth Circuit. Navajo Nation v. United States Forest Service. 8 Aug. 2008.
“Employment Division V. Smith, 494 U.S. 872 (1990).” Justia Law, supreme.justia.com/cases/federal/us/494/872/#tab-opinion-1958253. Accessed 23 Sept. 2024.
H.R.1308 – 103rd Congress (1993-1994): Religious Freedom Restoration Act of 1993 | Congress.Gov | Library of Congress, http://www.congress.gov/bill/103rd-congress/house-bill/1308. Accessed 23 Sept. 2024.
Lovett, Katharine E. A Case Study of the Oak Flat Land Exchange, http://www.colorado.edu/law/sites/default/files/attached-files/lovett-webversion.pdf. Accessed 23 Sept. 2024.
“Navajo Nation, et al v. Usfs, et al, No. 06-15371 (9th Cir. 2007).” Justia Law, law.justia.com/cases/federal/appellate-courts/ca9/06-15371/0615371o-2011-02-26.html. Accessed 20 Sept. 2024.
“Oak Flat: Chi’chil Biłdagoteel.” NIWRC, http://www.niwrc.org/restoration-magazine/june-2021/oak-flat-chichil-bildagoteel. Accessed 23 Sept. 2024.
“San Francisco Peaks – United States.” Sacred Land, sacredland.org/san-francisco-peaks-united-states/. Accessed 23 Sept. 2024.
Image Via Pixel
For more ‘Ethics in the News’ and to keep updated with the latest posts, please consider subscribing to the The Ethics and Society Blog today!
The Ethics and Society Blog 
