At the heart of our nation is a constitutional reverence that not only provides the foundation for economic stability but also includes the right to freely exercise faith as one’s conscience provides. Free exercise is a right for each of us, but Congress and judicial precedent have also shaped the boundaries necessary for the United States to balance its economic agenda with this constitutional right.

Meaningful advances have been made in the protection of the free exercise of religion, including in the areas of adoption, school programs, and prayer by public employees. But each of these cases was brought on questions for which the Court had not issued a bright-line rule. In Apache Stronghold v. United States, there is bright line case law that answers the question.

In 2014, Congress enacted the Southeast Arizona Land Exchange and Conservation Act. The Act effectuated a trade of land between Resolution Copper, a mining company that gave the federal government 5,300 acres of environmentally sensitive and culturally important lands, in exchange for 2,400 acres containing the third largest copper deposit in the world. The Constitution gives Congress the “Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.” And that power, the Supreme Court has “repeatedly observed,” is “without limitations.”

Apache Stronghold is an offshoot group from the San Carlos Apache Tribe that is endorsed by the American Civil Liberties Union and environmental groups such as the Sierra Club and Earthworks. Apache Stronghold claims that the land transfer violates its rights under the Free Exercise Clause and the Religious Freedom Restoration Act (RFRA) because the land possesses ceremonial sites important to the Apache Stronghold’s members. But under Ninth Circuit jurisprudence—which is consistent with that of other circuits—and Supreme Court decisions, such a claim has been consistently denied. Nothing presented in this case suggests that those precedents should be revisited.

The line of case law that is relevant in Apache Stronghold begins with Bowen v. Roy. The Roy family’s Native American traditions informed their belief that a social security number would diminish their daughter’s spiritual uniqueness. Without a social security number, the government would not provide the child welfare benefits. The Supreme Court held that “the Free Exercise Clause simply cannot be understood to require the Government to conduct its own internal affairs in ways that comport with the religious beliefs of particular citizens.”

The Supreme Court revisited Bowen in the context of land use just two years later in Lyng v. Northwest Cemetery Protective Association. The U.S. Forest Service planned to develop a six-mile connector road through government land. Three Native American tribes challenged the project under the Free Exercise Clause because the road would traverse a tribal holy site that required “privacy, silence, and an undisturbed natural setting.” The Supreme Court extended the Bowen holding to the government’s use of its own land, stating, “Whatever rights the Indians may have to the use of the area, however, those rights do not divest the Government of its right to use what is, after all, its land.”

Following Lyng, Congress passed RFRA in response to the Employment Division v. Smith decision of the Supreme Court, which addressed laws of general applicability in relation to Free Exercise claims. But RFRA specifically retains the pre-Smith jurisprudential understanding—including the ruling in Lyng. In fact, the Ninth Circuit has applied Lyng in rejecting tribal Free Exercise claims after the passage of RFRA in pertinent cases such as Navajo Nation v. United States Forest Service and Snoqualmie Indian Tribe v. FERC. Even scholars that support Apache Stronghold’s position recognize that existing precedent requires a “reconceptualized” approach “to prove a prima facie substantial burden more easily.”

The exchange of land Congress and Resolution Copper entered into will in fact protect many sacred tribal sites in Arizona while providing the United States with domestic access to the third largest copper deposit in the world. As copper is part of more and more of the electronics we use daily, it’s essential that the U.S. have access to our own resources rather than relying on foreign nations that can shut off access at a moment’s notice.

While this case continues on, the country risks legal holds that will delay or prevent necessary projects like the Resolution Copper mine, not to mention other national security and infrastructure projects.

The only way Apache Stronghold can succeed is if the Ninth Circuit reverses longstanding precedent, and then the Supreme Court determines that Lyng and Bowen were wrongly decided. Despite the religious liberty community’s strong track record the past few years, this case, with decades of adverse precedent and no circuit split, possesses no merit.


The Ninth Circuit will rehear the case en banc in March.

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at [email protected].