Sacred but Not Protected: The Gaps in Religious Protection for Land-Based Native American Religions

By Emma Hedler '28

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The U.S. often fails to protect Native American religions when they are tied to access to sacred lands. The Indian Law Resource Center states that “almost by definition, Native American religions and spirituality are rooted in the land. Sacred sites often provide the physical foundation for a tribe’s creation stories, the thread that connects each new generation to their ancestors and knits them into the fabric of tribal culture and identity.” (1) Native American religions are connected to nature; thus, to protect their religious freedoms, courts and legislators need to recognize the importance of access to venerated lands.

Despite safeguards, such as the Religious Freedom Restoration Act, courts have repeatedly ruled against Native Americans seeking to preserve sacred lands. The most recent example is Apache Stronghold v. United States, a case in which the Ninth Circuit denied Native Americans’ First Amendment claim to protect a sacred site from destruction.(2) This past year, the Supreme Court refused to hear the case, which has allowed the U.S. to continue with a land exchange that would destroy Oak Flat—a land sacred to the Apaches. (3)

Western Apaches have a long history of worship at Chíchil Bildagoteel, or Oak Flat, which is considered to be a “direct corridor to the Creator,” and “the dwelling place” of the saints that are the cornerstone of the Apache religion. (4) The federal government entered into an agreement to sell Oak Flat to a mining conglomerate, which planned to blast tunnels that would result in a crater between 800 and 1,115 feet deep and two miles wide into this sacred site. (5) The Apaches objected, as the mining would permanently destroy Oak Flat, “preventing them from ever again engaging in religious exercise.” (6) They sued the federal government, stating that the land exchange was a First Amendment religious exercise violation. But, the Ninth Circuit held that because the land exchange was a neutral law, it did not violate the Free Exercise Clause of the First Amendment. (7)

Apache Stronghold also furthered that the land exchange violated the Religious Freedom Restoration Act (RFRA). RFRA prohibits the federal government from ‘substantially burdening’ the exercise of religion, unless the burden has a compelling government interest, and is narrowly tailored to support that interest. (8) Despite the Apaches’ assertion that the destruction of Oak Flat would “close off a portal to the Creator forever and will completely devastate the Western Apaches’ spiritual lifeblood,” (9) the Ninth Circuit held that the land exchange does not substantially burden the Apaches’ religious exercise, and thus does not violate RFRA. (10)

The Ninth Circuit initially held that a ‘substantial burden’ occurs only when the government withholds benefits from those exercising a religion or enforces civil or criminal sanctions for religious adherence. This framework arises from Sherbert v. Verner, in which the Court held that denying unemployment benefits due to religious observance was unconstitutional (11); and Wisconsin v. Yoder, in which the Court held that applying a school attendance law to the Amish was unconstitutional. (12) The Ninth Circuit argued that because Sherbert and Yoder were referenced in RFRA, they defined the type of government action that constituted a substantial burden. (13) As the Apaches were not coerced with the threat of punishment or loss of benefits, the destruction of Oak Flat was not a substantial burden.

The Ninth Circuit later reheard the case en banc and held that a substantial burden is also imposed when the government “prevents access to religious exercise.” (14) However, the court then articulated that in cases involving federally-owned land, such a burden was not present, once again holding that there was no substantial burden. (15) The majority relied on Lyng, a 1988 Supreme Court case that held that the construction of a road through Chimney Rock, a sacred site to Native Americans, did not violate the First Amendment. (16) The Court stated that the government had a right to control the use of its own land, and that incidental effects of that control on religion were not coercive. (17) Similarly, the Ninth Circuit held that the Apaches were not coerced through the destruction of Oak Flat.

Unfortunately, Apache Stronghold is not the first time that courts have held that violations placed on Native American religions do not qualify as a substantial burden. The Ninth Circuit held, in Navajo Nation, that a ski resort’s use of sewage water to create artificial snow on a sacred site was not a substantial burden. (18) In Wilson v. Block, the sale of the San Francisco Peaks to private developers did not burden the Navajo and Hopi’s religion, despite the fact that the Navajo and Hopi believed the “development of the Peaks would be a profane act, and an affront to the deities.” (19) The U.S. District Court of Utah held that the flooding of Bridge Canyon did not impose a substantial burden on the Navajo Native Americans, even though it would cause the “destruction of holy sites; the drowning of entities recognized as gods by the plaintiffs; prevention of plaintiffs from performing religious ceremonies; [and the] desecration of holy sites.” (20) In Lyng, the Supreme Court allowed the construction of a road near Chimney Rock, in the face of Native Americans’ assertion that “it would irreparably damage the sacred areas” that were an “indispensable part of Indian religious conceptualization and practice.” (21) While the federal government undeniably has a compelling interest in the administration of federal land, to claim that these actions do not burden Native American religions reveals a misunderstanding of indigenous land-based religions.

Judge Berzon, writing in dissent, proposed conceptualizing restrictions on access to sacred lands as analogous to restrictions on religion in prisons and to discrimination against religious institutions through zoning laws, both of which are legislated against under the Religious Land Use and Institutionalized Persons Act (RLUIPA). (22) RLUIPA traditionally protects the religious freedoms of those in prisons and prohibits religious discrimination in local zoning ordinances. (23) The majority rejected this proposal, as RLUIPA does not govern the use of federal land, and thus, burdens recognized under RLUIPA are not equivalent to those imposed under RFR. (24) Despite this, Judge Berzon‘s analogy reflects the reality that Indigenous religions are often reliant on access to government resources. Consequently, Native American religions are often subject to unconventional restrictions that have yet to be recognized by the courts.

The U.S. continues to fail Native Americans by ruling that the destruction of holy sites does not constitute a substantial burden on religious exercise. Stephanie Barclay, Professor of Law at Georgetown Law, and Michalyn Steele, Professor of Law specializing in Native American law, argue that “meaningful access to sacred sites is among the most important principles to the religious exercise of Indigenous peoples, yet tribes have been repeatedly thwarted by the federal government in their efforts to vindicate this practice of their religion.” (25) Current legal frameworks—RFRA, RLUIPA, and the definition of ‘substantial burden’ under the Free Exercise clause—fall short as they were not designed to address land-based religions. The Supreme Court has the opportunity to remedy this oversight, as Apache Stronghold has recently filed a petition asking the Supreme Court to rehear the case. (26) But until courts and legislators recognize the land-based nature of Indigenous religions, legal protections will remain inadequate, leaving Native American religions unprotected.

Endnotes

1. “Protecting Sacred Sites,” Indian Law Resource Center, https://indianlaw.org/issues/protecting-sacred-sites.

2. Apache Stronghold v. United States, 101 F. 4th at 44 (9th Cir. 2022) (per curiam).

3. Federal Defendants’ Sixty Day Notice of Publication of Final Environmental Impact Statement, Apache Stronghold v. United States, No 2:21-cv-00050-SPL, (D. Az. 2025) https://becketnewsite.s3.amazonaws.com/20250417170744/UTF-860-day-notice.pdf

4. Apache Stronghold v. United States, 605 U.S. _ at 1, cert. denied, (2025) (Gorsuch, J., dissenting from denial of certiorari).

5. Apache Stronghold v. United States, 101 F. 4th 1036 at 1131 (9th Cir. 2022) (en banc) (Murguia, C.J., dissenting)

6. Ibid., 1129.

7. Apache Stronghold v. United States, 101 F. 4th at 54 (9th Cir. 2022) (per curiam).

8. 42 U.S.C. § 2000bb-1.

9. Apache Stronghold v. United States, 605 U.S. – at 4, cert. denied, (2025) (Gorsuch, J., dissenting).

10. Apache Stronghold v. United States, 101 F. 4th, at 26 (9th Cir. 2022) (per curiam).

11. Sherbert v. Verner, 374 U.S. 398, at 406 (1963).

12. Wisconsin v. Yoder, 406 U.S. 205, at 234 (1972).

13. Apache Stronghold v. United States, 101 F. 4th, at 19-20 (9th Cir. 2022) (per curiam).

14. Apache Stronghold v. United States, 101 F. 4th 1036 at 1043 (9th Cir. 2024) (en banc)

15. Ibid., 1092.

16. Lyng v. Northwest Indian Cemetery Protective Association, 485 U.S. 439 at 448-453 (1988)

17. Ibid.

18. Navajo Nation v. United States Forest Service, 535 F. 3d 1058 at 1070 (9th Cir. 2008) (en banc)

19. Wilson v. Block, 708 F. 2d 735 at 740 (D.C. Cir.,1983)

20. Badoni v. Higginson, 455 F. Supp. 641 at 644 (D. Ut. 1977)

21. Lyng v. Northwest Indian Cemetery Protective Association, 485 U.S. 439 at 442 (1988)

22. Apache Stronghold v. United States, 101 F. 4th 1036 at 62-64, (9th Cir. 2024) (per curiam) (Berzon, J., Dissenting)

23. “Religious Land Use and Institutionalized Persons Act,” U.S. Department of Justice Civil Rights Division, https://www.justice.gov/crt/religious-land-use-and-institutionalized-persons-act

24. Apache Stronghold v. United States, 101 F. 4th 1036 at 29-31 (9th Cir. 2024) (per curiam)

25. Stephanie Hall Barclay and Michalyn Steele. “Rethinking Protections For Indigenous Sacred Sites,” Harvard Law Review, vol 134, issue 2 (2021), https://harvardlawreview.org/print/vol-134/rethinking-protections-for-indigenous-sacred-sites/#footnote-ref-14

26. Apache Stronghold, No. 24-291(June 2025), Petition for Rehearing of Petition for Certiorari. https://www.supremecourt.gov/DocketPDF/24/24-291/363738/20250623145557929_Petition%20for%20Rehearing--FINAL.pdf