Sacred Site protection refused by the 9th Circuit
The Federal Court that stuck with its absurdity
The year long wait for the 9th Circuit’s second time being asked to stop the destruction of Chi’chil Bildagoteel, or the Oak Flat sacred site in Arizona, is over, and they disappointed again with a new spin on the same “absurd”1 analysis.
I wrote about Oak Flat in unintended consequences, June 20222 and June 30, 20233 and how sacred sites of Native Nations were being destroyed because the First Amendment, with its Free Exercise of Religion and Establishment Clause prohibition will never protect it, with the current judicial test.
That is why a new test for protecting sacred sites is needed.
The 9th Circuit dissenting opinion called the majority’s test an “absurd” analysis of the First Amendment.4
So the 9th Circuit called for a panel of more of its judges (an en banc panel made up of 11 Federal Circuit Judges) to reconsider the request for a preliminary injunction to prevent the utter and total destruction of the sacred site.
Then, the en banc court dealt its final blow with a slight majority of 6-5 in its opinion on March 1, 2024 that affirmed the previous opinion that success on the merits of an injunction were unlikely.
Thus, there are two more steps that Apache Stronghold on behalf of the San Carlos Apache Nation can take: petition the U.S. Supreme Court for review of this decision; and if that fails, petition the Inter-American Court of Human Rights, using the U.N. Declaration of the Rights of Indigenous Peoples.5
It is often a long and difficult process, demonstrated by the Dann Sisters case.
The Dann Sisters in an International Forum
Once remedies are exhausted within your nation’s jurisdiction, your case is ripe to go to an international forum, if there is one. In this case, the Inter-American Commission on Human Rights heard claims arising from the U.N. Declaration on the Rights of Indigenous Peoples, and that was a basis for the Dann Sisters to pursue relief from this body. It would be an embarrassment to the United States, and one that was well deserved.
The Western Shoshone Nation used the last option in the case of the Dann Sisters, long abused by the federal government for refusing to relinquish their claim to lands they were entitled to use under a Treaty that had been ratified by the Senate and had the full force of U.S. law. The U.S. was admonished by the Inter-American Court on Human Rights,6 but those decisions are not binding but they do bring a lot of moral fault to the U.S. that will come back to revisit their future negotiations with any other country in the world.
After this report from the Inter-American Court of Human Rights, the United Nations Committee on the Elimination of Racial Discrimination (CERD)7 was petitioned to take action on the Dann case. This U.N. body issued a decision under its Early Warning and Urgent Action Procedures, directing that the United States "freeze", "desist from", and "stop" the illegal actions against the Western Shoshone Nation in 2006.
Under the U.S. State Department’s Secretary John Kerry, the United States vehemently denied any wrong doing and of course refused to stop their actions against the Dann Sisters in response to the 2019 report from the UN Inter-American Commission on Human Rights.8 Then in 2007, the U.S. State Department’s Secretary Condoleezza Rice, further denied all wrongdoing in response to the Committee on the Elimination of Racial Discrimination (CERD)’s 2006 report, with defenses such as, the taking of the Dann Sister’s land happened before the treaty was signed; and nothing in this treaty says we have to give land back after we take it instead of just paying for it.9
The Dann Sisters were right, and died fighting.10
The en banc absurd affirmation
The opinion on March 1, 2024 by the en banc panel was a 6-5 decision. The majority recruited Judge Berzon to join them. (Judge Berzon was the judge who opined that the court’s previous opinion engaged in an “absurd” analysis of the First Amendment.)11 This opinion was another absurd reading of the First Amendment.
The first and second points of the en banc opinion are a continuation of the absurd analysis of the First Amendment.
On the third point of the en banc opinion, they are again, absurdly wrong. Here is the logic: Sen. McCain authored a statute that passed the Senate that literally gave away Oak Flat to Resolution Copper upon completion of the sham environmental impact statement process. The sale is triggered by the final environmental impact statement being released from the U.S.D.A., the department that oversees forestry (USFS). During the Biden Administration, the EIS has never gone final, so the sale has never been triggered. The logic of the court then, is that this statute preempted the treaty with the San Carlos Apache that might have obligated the U.S. to a trust responsibility that included protecting this sacred site. The en banc court failed to understand, acknowledge or apply the rule that it takes an express statement from Congress to preempt a treaty obligation.
As the dissent wrote about the statutory interpretation that embodies the First Amendment analysis to which they wrongly insist on clinging:
The majority tragically errs in rejecting Apache Stronghold’s RFRA claim solely under Lyng. Lyng does not answer the question here, where we are faced with government action that will result in a massive hole obliterating Oak Flat and categorically preventing the Western Apaches from ever again communing with Usen and the Ga’an, the very foundation of the Apache religion. The effect will be immediate and irreversible. Under RFRA, preventing religious adherents from engaging in sincere religious exercise undeniably constitutes a “substantial[] burden.” 42 U.S.C. § 2000bb-1(a). R12
What next?
Stronghold Apache can petition the U.S. Supreme Court to hear this case and to review the 9th Circuit’s absurd analysis.
As I have argued in previous law review articles, there are two approaches. One is to stop calling Tribal Nation’s traditional practices “religion”. They are not religions but are traditional practices integral to governance. Once you call this a freedom of religion case, and apply the First Amendment absurd test you are guaranteed to lose the case. No sacred site has ever been protected by the First Amendment because both the Free Exercise and Establishment Clause, the Freedom of Religion clauses of the First Amendment, will always fail because of the existing tests that yield an absurd result in the case of sacred sites. If you stop calling traditional practices “religion” then you have a federal trust case, which is owed to Tribal Nations by the federal government to protect their self-governance.
The second approach is to continue to call these practices “religion” but fashion a new test. The U.S. Supreme Court could fashion a new First Amendment test. which I recommended which takes into account Tribal Nations are sovereigns with a need to preserve a sacred site, not as an individual exercising a right to practice religion, but as a sovereign nation. The U.S. Supreme Court fashioned a new test for corporations when they recognized free speech needed a different test for corporations than for individuals. The test was known as the “Central Hudson test” for commercial speech.13 This new test could be the “Tribal Nation religious freedom test.” The 9th Circuit could have done that. The U.S. Supreme Court should do it.
If the U.S. Supreme Court fails to agree to review the case, then the legal process is exhausted in the United States and they are entitled to proceed to petition the Inter-American Human Rights Commission for relief.
But unfortunately by then, since the preliminary injunction was denied, the sacred site could be a large hole in the earth.
Description used by the dissenting justice in the 9th Circuit opinion, Apache Stronghold v. U.S.
Sutton, APPELLATE COURTS: STOP ACCEPTING AN “ABSURD” FIRST AMENDMENT ANALYSIS FOR NATIVE NATIONS’ SACRED SITE DESTRUCTION, 23 J. Appellate Prac. & Proc. 193-211 (Winter 2023) at https://journals.librarypublishing.arizona.edu/appellate/article/id/5584/
https://cidh.oas.org/annualrep/99eng/admissible/U.S.11140.htm
https://law.arizona.edu/western-shoshone
CERD is responsible for monitoring and promoting compliance with the International Convention on the Elimination of All Forms of Racial Discrimination. This Convention has been ratified by the United States at ohchr.org/en/instruments-mechanisms/instruments/international-convention-elimination-all-forms-racial
https://2009-2017.state.gov/s/l/38647.htm
https://2009-2017.state.gov/j/drl/rls/cerd_report/83406.htm
https://en.wikipedia.org/wiki/Mary_Dann_and_Carrie_Dann
Apache Stronghold v. United States, 38 F.4th 742, 782 (9th Cir. 2022) (Berzon, J., dissenting).
Apache Stronghold v. United States, ___ at 240 (9th Cir., 2024) at https://cdn.ca9.uscourts.gov/datastore/opinions/2024/03/01/21-15295.pdf .
https://firstamendment.mtsu.edu/article/central-hudson-gas-and-electric-corp-v-public-service-commission/