August 3, 2022

Agriculture Department grants temporary reprieve to sacred Apache lands after federal court rejects tribe’s religious freedom claim

The US Department of Agriculture made a last-minute decision to delay the transfer of land in Arizona from the federal government to mining companies after the US Forest Service withdrew its environmental impact statement regarding the transfer. Chiefs of the Apaches and other Native American tribes have spoken out against the mining project, in part because the transportation includes land (“Oak Flat”) that they consider sacred, and it is land on which they organize sacred ceremonies.

A group of Apache tribesmen have filed a lawsuit to end the land swap, which is authorized by federal legislation passed in 2014, on the grounds that transferring land for mining purposes violates their rights to religious freedom under the Religious Freedom Restoration Act (RFRA) and the First Amendment. A federal district court on February 12 rejected their argument. While acknowledging that “government mining projects on Oak Flat will have a devastating effect on the religious practice of the Apache people,” the court held that the desecration and removal of the site as an accessible place of worship did not constitute not a “substantial burden” on their religion according to his understanding of RFRA.

Here is an excerpt from the review:

The plaintiff was not deprived of a government benefit and was not coerced into violating his religious beliefs. … [T]The Apache peoples of the West undoubtedly derive great “benefits” from using the Oak Flat, at least in the common sense of the word. However, Oak Flat does not provide the type of “benefit” under RFRA case law: it is not something the government gave to Apaches in the West, like unemployment benefits, and then took away from them. because of that. their religion. Similarly, the construction of a mine on the land is not a civil or criminal “penalty” under RFRA.

In light of the court’s decision, the transfer was apparently finalized by the environmental impact study published on January 15 of this year. The deed was to change hands 60 days later. However, the USDA’s decision, which takes into account a recent memorandum issued by President Joe Biden, delays the land swap potentially for months, according to a Arizona Republic report. The memorandum calls on executive agencies to engage in “regular, meaningful, and robust consultation with tribal leaders in the development of federal policies that have tribal implications.”

We expect the Save Oak Flat Bill to soon be reintroduced in the House and Senate, which if passed will make this temporary reprieve permanent.