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Notre Dame, IN – The Notre Dame Law School Religious Liberty Clinic today filed an amicus brief with the Ninth Circuit Court of Appeals asking the court to protect Oak Flat, a sacred site in Arizona that holds great spiritual importance to many Native American tribes.
The brief was filed in support of an en banc examination for Apache Stronghold v. United States.
In Apache Stronghold v. United States, a community-based non-profit organization dedicated to defending Native American sacred sites (Apache Stronghold) is asking En Banc Ninth Circuit to stop a land transfer to foreign mining company Resolution Copper, which plans to destroy a traditional Apache sacred site as part of a multi-billion dollar mining plan. Chi’chil Biłdagoteel, called Oak Flat in English, has been the site of Western Apache worship practices for centuries and is sacred to many Native American peoples, including ancestors of the O’odham, Hopi, Zuni, Yavapai, and Apache tribes. of today.
Because Apache tradition teaches that spiritual powers are physically located on this piece of land, religious ceremonies and prayers must take place there to be effective.
“When we go to a place, we believe we can communicate with it. It’s not an inanimate object; it’s alive and it gives us life,” said Mona Polacca, senior tribal liaison for the Multi-Indigenous Initiative for Collaborative Action, an Indigenous-led non-profit organization. “The destruction of our sacred land will have a huge impact on the tribal nation. Our culture emphasizes the importance of carrying on tradition from generation to generation, and our relationship with the land, which gives us life, is part of this. We cannot keep our traditions alive when the land is taken from us.
A last-minute amendment to a 2014 appropriations bill allowed Oak Flat to be transferred to Resolution Copper, despite the objections of many tribal members for whom the site is sacred. Several senators made repeated efforts over several years to save the land due to its religious significance, but without success. In January 2021, the outgoing administration released a final environmental impact statement which acknowledged that planned mining operations would result in large underground tunnels that would eventually collapse, causing Oak Flat to collapse and transforming a sacred site into an old centuries into a crater. 1,000 feet deep and two miles wide.
The Religious Liberty Clinic brief outlines the ways the destruction of Oak Flat places a substantial burden on Apache religious expression under the Restoration of Religious Freedom Act (RFRA).
“The physical destruction that the government is planning at Oak Flat will deprive Western Apache people of any choice to continue practicing their religious practice at this sacred site,” said Professor Stephanie Barclay, First Amendment scholar and director of Our Dame Religious Liberty Initiative. “They face the elimination of plants, natural resources, shrines of religious significance and religious ceremonies. They face the inaccessibility of their places of worship simply because these places will cease to exist, making religious exercise physically impossible.
Notre Dame law students Olivia Rogers, William Eisenhauer, Jared Huber and Athanasius Sirilla helped Barclay and Francesca Genova Matozzo, a lawyer at the clinic, prepare the case. The Clinic previously filed an amicus brief in apache fortress in February 2021, advocating for religious freedom protections for Oak Flat.
The brief also draws attention to the failure of the United States to protect sacred Native American sites. Of particular note in apache fortress is that Rio Tinto, the majority owner of Resolution Copper, has a history of destroying sacred sites for income-generating activities despite the objections of indigenous peoples.
“Unfortunately, Native tribes have not received strong religious freedom protections,” said Rogers, a 3L in her second year working at the clinic. “In recent years, sacred Indigenous sites have been bulldozed, developed for commercial purposes, and even destroyed by the federal government. Other religions have enjoyed strong legal protection for their places of worship, but Native Americans generally do not receive similar assistance in keeping their religious traditions alive.
“I found it fascinating to learn about Native American religious practices and traditions and compare them to my own,” said Athanasius Sirilla, a 2L in his first year working at the clinic. “But we didn’t just study Native religions in the abstract – we had the chance to learn about them first-hand from real Native Americans who still adhere to those religions. The ability to call [Mona Polacca] made the work very real and meaningful to me.
Barclay co-authored an article for the Harvard Law Review in 2021 titled “Rethinking Indigenous Sacred Site Protections.” The article argued that Indigenous peoples should be able to more easily claim a substantial burden under existing religious freedom laws in order to correct a troubling double standard that offers less protection to Indigenous sacred sites than places of worship for other denominations.
Established in 2020, the Notre Dame Law School Religious Liberty Initiative promotes and defends religious freedom for all through advocacy, education, and thought leadership. The initiative protects the freedom of individuals to hold religious beliefs as well as their right to exercise, express and live by those beliefs.
The Religious Freedom Initiative has represented individuals and organizations from a range of religious traditions to defend the right to religious worship, to preserve sacred lands from destruction, to promote the freedom to choose religious ministers, and to prevent discrimination against religious schools and families.
Learn more about the Notre Dame Religious Liberty Initiative at law.nd.edu/RLI.
Contact: Anna Bradley, Program Manager, Religious Liberty Initiative, 574-631-6003, [email protected]