Agriculture Department issues temporary reprieve for sacred Apache land after federal court rejected tribe’s religious freedom claim

The U.S. Department of Agriculture has issued a last-minute decision to delay transfer of land in Arizona from the federal government to mining companies after the U.S. Forest Service withdrew its environmental impact statement regarding the transfer. Leaders of the Apache and other Native American tribes have urged against the mining project, in part because the conveyance includes land (“Oak Flat”) they consider sacred, and it is land on which they hold sacred ceremonies.

A group of Apache tribe members brought suit seeking to halt the land exchange, which is authorized by federal legislation passed in 2014, on the grounds that the transfer of land for mining purposes violates their religious liberty rights under the Religious Freedom Restoration Act (RFRA) and the First Amendment.  A federal district court on February 12 rejected their argument. Despite acknowledging that “the Government’s mining plans on Oak Flat will have a devastating effect on the Apache people’s religious practice,” the court held that desecration and removal of the site as an accessible place of worship did not amount to a “substantial burden” on their religion under its understanding of RFRA.

Here is an excerpt from the opinion:

Plaintiff has not been deprived a government benefit, nor has it been coerced into violating their religious beliefs. … [T]he Western Apache peoples no doubt derive great “benefits” from the use of Oak Flat, at least in the common sense of the word. However, Oak Flat does not provide the type of “benefit” under RFRA jurisprudence: It isn’t something the Government gave to the Western Apaches, like unemployment benefits, and then took away because of. their religion. Similarly, building a mine on the land isn’t a civil or criminal “sanction” under RFRA.

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

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