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How religious freedom law fails Native Americans

In two ongoing lawsuits, tribes are fighting for access to sacred sites

A flag that says “Protect Sacred Oak Flat” hangs over an encampment belonging to protesters.
This June 15, 2015, file photo shows an encampment belonging to protesters in the Oak Flat area of Superior, Ariz. The mountainous land is also known as Chi’chil Bildagoteel. It’s where Apaches have harvested medicinal plants, held coming-of-age ceremonies and gathered acorns for generations.
Ross D. Franklin, Associated Press
This article was first published in the State of Faith newsletter. Sign up to receive the newsletter in your inbox each Monday night.

One of the most sacred sites in North America may soon become a copper mine. If it does, the dynamite used to extract the ore will eventually destroy the land, turning a holy place into a crater as wide as the National Mall is long.

The religious freedom protections that could save Oak Flat, which is sacred to the Western Apache people, have failed Native Americans many times before.

Judges, politicians and other leaders have refused repeatedly to accommodate tribes seeking the ability to worship in peace, said Luke Goodrich, vice president and senior counsel at the Becket Fund for Religious Liberty.

“There’s often just a remarkably callous disregard of Native Americans and Native American religious practices. There’s a lack of understanding, as well,” he said.

Along with his Native American clients, Goodrich is working to build understanding and ensure that America upholds its promise of religious freedom for all. They’re asking the court to block the mining project and ensure nothing like this crisis can happen again.

The Oak Flat case and another ongoing lawsuit called Slockish challenge us to consider why tribes’ pleas for religious freedom protections so often fall on deaf ears. I spoke with Goodrich last week about this problem and whether he’s hopeful about the future.

This interview has been edited for length and clarity.

Deseret News: What makes cases involving Native Americans stand out from other religious freedom cases?

Luke Goodrich: There’s a real deafness and blindness on the part of the government when it comes to Native American practices that are tied to historic lands. You can see that in some past court decisions.

In the 1980s in the Lyng case, which involved the construction of a highway through a forest held sacred by Native Americans, the Supreme Court ruled there was no substantial burden on religious practices, since the government was not actually physically destroying the land. There was this sense that the government is entitled to do what it wants on its own land.

What’s missing from that decision is the fact that it’s only government land because it was taken from the tribes by force. It’s like the court is saying, ‘The government took this land from you back in the 1800s. Therefore, it can now do whatever it wants.’

DN: That Lyng case jumped out at me as I researched this topic. It’s hard to imagine the court saying something similar in a case involving other faith groups.

LG: Let’s think about it in the context of the Oak Flat case. Say there was a cross on the land. Given past lawsuits, we can assume that the government wouldn’t dispute that an atheist who is offended by the cross would be adequately burdened under the establishment clause to sue for relief.

But, at the same time, the government is saying that Apaches who worshipped at Oak Flat for millennia and whose whole identity is tied to that land don’t have a cognizable burden to oppose the government blasting it to oblivion.

DN: It seems like government officials and judges don’t understand Native Americans’ ties to the land.

LG: If the government took land owned by a Baptist church to build a highway, the Baptists could build another church on the other side of town. For many religious groups, that would be possible.

But Native Americans can’t go create a new sacred site on the other side of town. Their religious practices are inherently tied to a specific piece of land.

You can compare the situation to the prison context or military context. A prisoner or soldier can’t eat a kosher diet or access the Catholic sacraments unless the government facilitates that since the government controls the environment.

We should recognize that the government has an obligation to facilitate or accommodate religious exercise in contexts like that.

DN: How does the government defend its actions?

LG: The government’s main argument in these cases is basically a slippery slope argument. They’re saying, ‘We know this land is sacred and we’re destroying it and ending your religious practices forever, but if the court applies religious freedom law here, imagine the number of legal claims we’d see.’

That’s the picture the government is painting in its legal briefs, that there’d be no limit to the claims Native Americans would make since they’ve lived all throughout the West. It’s as if a ruling in favor of Native Americans would mean the government could never do what it wanted to do again.

But, you know, courts have readily seen through that type of argument in other contexts.

DN: What kind of relief can a court offer when damage to sacred sites has already been done?

LG: In the Slockish case, which involves a highway expansion project that’s already completed, what the plaintiffs are seeking is some kind of remediation of the site. The government could allow them to rebuild the stone altar, replant native vegetation and resume their religious practices at the site. In other cases, courts have actually ordered the government to remove and reroute a highway.

Another part of what the plaintiffs want is a court ruling, a declarative judgment, that says the government violated the law. It would vindicate their ancestors.

DN: Are you feeling optimistic about the future?

LG: Larger religious groups weren’t always very attuned to the religious freedom needs of minority faiths. Now, they’re starting to wake up to the fact that everyone’s religious practices are intimately bound up together. If one of us doesn’t have religious freedom, then none of us do.

It feels like there is a growing concern around and momentum behind Native Americans’ religious freedom battles.


Fresh off the press

The University of Notre Dame hosted a conference Monday about key threats to religious liberty in the U.S. and how to address them. I watched the livestream of the event and wrote about some of the proposed solutions.


Term of the week: Lateran Treaty

The Lateran Treaty of 1929 stabilized the relationship between Italy and the Vatican. It outlined each government’s sphere of influence and attempted to anticipate and then head off potential legal conflicts.

As you might have guessed, the document is easier to apply to some battles than others. For example, in the past, Vatican and Italian officials have clashed over what the treaty means for marriage regulations. Catholic leaders cited it in 1966 as they attempted to prevent Italy from legalizing divorce, according to Religion News Service.

Currently, the treaty is playing a supporting role in the Vatican’s effort to force changes to LGBTQ rights legislation. Church leaders worry that, as written, the bill would lead to attacks on Catholics who oppose same-sex marriage.


What I’m reading ...

Two new books on same-sex marriage legalization have arrived to help Americans understand (or, in some cases, remember) how gay marriage gained crucial social, political and legal support over the course of about five decades. Writing for Christianity Today, political scientist Daniel Bennett makes the case for why conservative Christians should engage with these books.

At first glance, Gallup’s recent report on American morality can seem uneventful. The survey found that the share of U.S. adults who believe the country’s moral values are getting worse rather than better — two-thirds — is pretty much unchanged since 2002. However, researcher Lydia Saad points out that this overall stability masks notable partisan shifts. Since the 2020 election, “Democrats are much less negative about moral values. ... Conversely, Republicans’ views of U.S. moral values have sunk to record lows,” she wrote.


Odds and ends

If you’d like to learn more about religious freedom battles involving Native Americans, read National Catholic Reporter’s excellent article on the Oak Flat case. It explores some of the legal history that led to today’s disputes.

My friend and fellow religion reporter Liam Adams has launched a newsletter on religion in Colorado. Check it out!

Happy birthday to my husband, Mike!