Litigation Update: Apache Stronghold v. United States

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Apache Stronghold v. United States is an ongoing case involving religious land use. On February 18, 2021, a federal judge allowed the government's plans to swap a portion of Tonto National Forest for land owned by Resolution Copper. Inside the National Forest land is Oak Flat, a Native American sacred site.

Apache Stronghold, a nonprofit organization that defends these sites, and the Becket Fund for Religious Liberty are challenging the judge's preliminary injunction at the Ninth Circuit Court of Appeals.

First Amendment expert Stephanie Barclay, co-author of the recent Harvard Law Review article "Rethinking Protections for Indigenous Sacred Sites," and A.J. Ferate, formerly Vice President of Regulatory Affairs for the Oklahoma Independent Petroleum Association, will give an update on this case and discuss legal implications.

Featuring: 

Prof. Stephanie Barclay, Associate Professor of Law and Director, Religious Liberty Initiative, University of Notre Dame Law School

Anthony J. Ferate, Of Counsel, Spencer Fane LLP

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Event Transcript

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Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group teleforum calls, become a Federalist Society member today at fedsoc.org.

 

Nick Marr:  Welcome, all, to this Federalist Society Teleforum conference call. This afternoon, March 11, 2021, we’re having a litigation update on a case called Apache Stronghold v. United States. I’m Nick Marr, Assistant Director of Practice Groups here at The Federalist Society.

 

      As always, please note that expressions of opinion on our call today are those of our experts. After brief introductions, we’ll get the program started.

 

We’re very pleased to be joined this afternoon by two experts in this field. Our first speaker is Professor Stephanie Barclay. She’s an associate professor of law at University of Notre Dame Law School. She’s also the director of the new Religious Liberty Initiative at Notre Dame Law School.

 

And our second speaker today is Anthony Ferate. He’s Of Counsel at Spencer Fane LLP. And they’re both experts in this field, and we’re very pleased to have them here to brief us on this issue today. So with that, Stephanie, I’ll give the floor to you first.

 

Prof. Stephanie Barclay:  Thanks. It’s great to be here. Today, we’re talking about a case that is an ongoing litigation right now at the Ninth Circuit currently. It’s called Apache Stronghold v. United States. This is a case regarding a place in Arizona called Oak Flat. It’s on federal property, and it is a site that is sacred to multiple tribes in Arizona, including the Apaches.

 

Apache Tribal elders describe Oak Flat as a place filled with power. They teach that Oak Flat is the home of the Ga’an, the mountain spirit. And they believe that their very spiritual existence is tied to this land. Tribal representatives testified before Congress that Oak Flat is similar to Mount Sinai for the Apache people. And for generations, Apache people, along with other tribes, have performed religious ceremonies at Oak Flat, including the coming-of-age sunrise dance for young women. Sacred medicine plants are also harvested on this site.

 

Oak Flat has been protected for decades because of its importance to Native American people, but for years, supporters of mining interests have tried to weaken protections of Oak Flat. They tried and failed over 10 times to pass standalone legislations that would transfer this federal property into private hands. And none of those attempts, in the light of day, were successful.

 

But in December of 2014, supporters of these mining interests were able to flip a provision into a 1,700-page omnibus bill as a Midnight Rider that was unveiled after 11:00 PM, before the bill was coming up for consideration. And that bill would transfer the land to different mining companies. That land was conditional on a final environmental impact statement being issued for that transfer to take place, and that would then trigger a 60-day window for when the land transfer must occur.

 

The companies behind the push for the land transfer are Resolution Copper, a subsidiary of two of the world’s largest mining conglomerates, BHP Billiton and Rio Tinto. These are two foreign companies based in Australia and London. So a group of Apaches sought to vindicate their rights in federal court, including under a statute called the Religious Freedom Restoration Act.

 

Just last month, the lower court in Arizona in federal district court, rejected their claim and issues a ruling saying that the Apache people could not bring a religious claim under RFRA because their beliefs were not actually burdened. The court arrived at this conclusion despite acknowledging and recognizing the government’s acknowledgement that the mining project would completely destroy the area used by the Apaches for religious ceremonies, leaving behind it, a two-mile crater, thousands of feet deep, where those sorts of religious ceremonies on a sacred site used to be.

 

What the court said was that because plaintiffs weren’t being fined, because the government hadn’t put a fence around Oak Flat, and threatened by fining them for something like trespass or taking away government benefit if they were going to use the site. Instead of doing that, the government is just blowing it up, and there’s no coercion, no burden here. This ruling has been appealed to the Ninth Circuit Court of Appeals. Becket is representing the Apaches on appeal at the Ninth Circuit.

 

Notre Dame’s Religious Liberty Initiative filed an amicus brief both to the lower courts and at the Ninth Circuit. We’ve represented at the National Congress of American Indians, a tribal elder, and other federal Indian law scholars and organizations. There was an emergency motion for an injunction pending the appeal because what the outgoing administration had done is just, I think, five days before the inauguration, they passed the final environmental impact statement that then triggered the clock so that within 60 days, we’d be coming up on that deadline, March 15, when the land transfer had to occur. And so the emergency appeal was asking for relief to pause that land transfer.

 

On the day of the deadline for the response, the government rescinded the final environmental impact statement, which is slowing down the process. I think this is good progress for the Apaches. It was good news for them certainly, but the government has acknowledged that this is, at least for now, just a delay. It’s not permanent protection for this site.

 

There were three judges on the panel that ruled on this emergency motion: Judges Smith, Bade, and Bumatay. Because of this last-minute change by the government, two of the judges on the panel voted that no emergency relief right at this moment was warranted, but they said that they weren’t ruling on the merit, and that the Apache Stronghold group could come back and seek relief at any time if the government tried to do something to the sacred site. Briefing is ongoing. It will be on the merits. That will be later this month that we’ll see those briefs come in.

 

Judge Bumatay dissented in a really powerful dissent, I think, wrote about how relief is clearly warranted here and that the rights of the Apache people are being burdened under the Religious Freedom Restoration Act. One thing that I’ll just talk about a little bit more broadly is, I think it’s important to recognize that, first of all, Native American groups are not the only ones that have sacred sites.

 

Practitioners of many and varied religious faiths escaped the mundane to commune with the divine in specific places set aside and sanctified for that purpose: Jews at the Whaling Wall in Jerusalem; Catholics at the Grotto; members of the Church of Jesus Christ of Latter-day Saints at the Sacred Grove in upstate New York; Muslims in Mecca, and many others. And some of these sites are on federal property.

 

There are historic Catholic missions and [inaudible 07:15] sites, in Arizona, and in California. Martin’s Cove is an important sacred site for Latter-day Saints on BLM property. There are other churches that exist on Forest Service property.

 

Allowing the government to turn any of these churches or pilgrimage sites into a dusty crater two miles wide and 1,000-feet deep just to mine copper underneath it would be unthinkable, but that is the fate of Oak Flat if it doesn’t receive permanent relief. The government has recognized, in its own final environmental impact statement, that this would be an irreversible loss for the Apache people.

 

My co-author, Professor Michalyn Steele, and I explained in a recent Harvard Law Review article, published last month, that the debate about sacred sites partakes unwittingly in longstanding philosophical debates about the nature of coercion itself. Whether or not one formerly labeled what the government is doing in these cases as coercive, the important question to ask is whether the government is bringing to bear its sovereign power in a way that is inhibiting or interfering with the important ideal of religious volunteerism—the ability of individuals to voluntarily practice their religious exercise consistent with their own free will.

 

In context, like prison or military service, for instance, we recognize that when government does not act affirmatively to protect religious exercise, that exercise is effectively made impossible. We certainly recognize this sort of burden when government and other cases has done things like padlock churches shut, making it impossible for congregants to enter.

 

Religious exercise is equally impossible for indigenous people who suffer physical destruction of places where ceremonies or religious gatherings once occurred. The failure to recognize and focus on volunteerism for indigenous religious practices, I think has created a double standard in this area where the law recognizes a much more expansive notion of government coercion for context in passing lots of other non-indigenous religious practices and a much narrower conception of coercion when it comes to native American sacred sites.

 

So under the district court’s reasoning, for example, there would be a substantial burden only if the government had said, “We’re going to fine you $5 if you use Oak Flat,” but not if the government is blowing it up.

 

Our brief is arguing that the Religious Liberty Initiative, that Notre Dame filed, it argues that this is the latest incident in a troubling history of the callous disregard for indigenous sacred sites. Our government shouldn’t be allowed to destroy this sacred space with impunity and without justification any more than it shouldn’t be able to destroy a historic church.

 

Letting Native American groups bring claims under RFRA on the same basis as other religious groups doesn’t mean that any of these groups will always win their case. The government will have the opportunity to martial evidence under strict scrutiny, and sometimes, the government will win and have important reasons for doing whatever it’s going to do with this land.

 

Notably in this case, the government hasn’t even tried to argue that it has a compelling interest and that this is the least restrictive alternative, maybe in part because there are so many other nearby spots where the government could mine copper, and there’s no real threat or issues with the government’s current copper supply right now. Let me go ahead and pause there and turn the time over to A.J.

 

Anthony J. Ferate:  Thank you, Professor. And I have to say that I don’t have really any question about Professor Barclay’s religious liberty analysis. I think that she’s done a great job, and I want to highlight, too, before I start diving in: she mentioned the law review article that was recently published in the Harvard Law Review. I read it this weekend, just a little light reading. And I recommend that those of you that are listening to the call take a read at it because it’s very interesting, and it actually raises a lot of issues and a lot of questions that frankly I had not even contemplated as I started to look at this case a little bit.

 

Certainly, I’ve represented religious liberty cases. I currently represent Joe Kennedy the Bremerton School District case, and I have a couple of others. But my general focus of my practice is on land use, and federal land use issues, and tribal issues. And so my conversation today is really going to focus more on those elements of it because the professor did a great job with the religious liberty elements, and I don’t want to duplicate anything that she said.

 

So to start, I’m going to start with a couple of the cases that were cited by Apache Stronghold and just give a brief summary about them in part because I’ve actually done a Teleforum on them previously. I’ve done one on Herrera v. Wyoming, and I’ve done, I believe, two on McGirt v. Oklahoma. And because I think that they are really important to understand in this case, I want to dive into those just a little bit and then go into what the district court did in this case.

 

So the first case to contemplate here is Herrera v. Wyoming, and that was a case that was really based around the 1868 Treaty of Fort Laramie that was done between the United States and the Crow Tribe of which Mr. Herrera was an enrolled member. He is a member of the tribe, and part of that treaty has language in it that says that the tribe can hunt the unoccupied lands of the United States, which are now the Bighorn National Forest. So the State of Wyoming had declared that those were occupied by the creation of the Bighorn National Forest, which would have disavowed the treaty right to hunt that the Crow possessed.

 

And so there were really two questions in there. Mr. Herrera and some friends tracked elk off of the reservation in Montana, crossed into Wyoming, and took three elk, and took them home, processed them, and intended to eat them as sustenance. So what happened there was two questions. One, had the treaty expired, and two, did the treaty have the effect of granting an individual right? Can Mr. Herrera himself claim this right for himself?

 

And the answer to both was yes. The treaty was still in existence. The lands of the Bighorn National Forest did belong properly to the federal government, were within the state of Wyoming, but that did not occupy the land in the sense that the State of Wyoming was claiming in the case, which gave the tribal members the right to continue to hunt the land.

 

But the second question in the case really revolved around whether or not Mr. Herrera himself could claim that treaty right, and the answer that came back from the court was yes. Obviously, individual members of the tribe need to hunt. The tribe itself cannot hunt, and therefore, they granted that treaty right or ability to claim that right to Mr. Herrera in the case.

 

And then there was debate in the opinions, in that case, as to whether or not the equal footing doctrine applied, and Wyoming claims that the equal footing doctrine did not. It was being harmed. Their admittance into the Union was harmed by the fact that the treaty right would have impacted them, but that was overlooked, and some have said that had the effect of overturning that, but I don’t know that that’s really a particular issue that was highlighted throughout the case.

 

It also raised issues of how treaties are interpreted, and that’s important as we discussed McGirt and discussed the present case because it’s important for the listeners to understand that treaties are interpreted by liberal construction in favor of the tribe, and this has played out for decades, long periods of time through the courts. And it’s really intended to be for the concept that the tribe had a reliance interest on these treaties.

 

They were trying to come to agreement with them, and so there is a great deference that is given to the tribes, to the treaties that if they joined into with the United States, in many instances giving up the significant land or being moved across the country to other places, and so a lot of deference, the courts believed, should be given to the tribes in those instances.

 

The other case that we need to discuss is McGirt. It was a Major Crimes Act case that interprets the 1866 treaty that assigned lands to the Muscogee Creek. The case really brought questions in Oklahoma. Within the state, it was believed by many, if not most, that the reservations to the Five Civilized Nations had been extinguished prior to statehood. Justice Gorsuch reminded us, that live here in the State of Oklahoma, that that was not true. The reservations have existed, and there’s been a number of questions raised and a number of discussion raised as a result of that.

 

Really, the questions in the case were specific or the claims in the case suggested that the Curtis Act, the 1898 effort to remove the reservation lands from the government of the tribes and provide those as allotments to the members in preparation for statehood. That was a forced effort that required specific treaties, specific acts of Congress in agreement with the treaties to parcel those out prior to the setting statehood.

 

In this case, however, Justice Gorsuch looked at those, and for a 5-4 majority rule, the Congress did not disestablish the Creek Reservation, that it still exists. Some have looked at this case, and one example of that is if you look at Oneida Nation v. Village of Hobart, the Seventh Circuit decided that just weeks after the McGirt decision came down, and certainly, the Court suggests in that opinion that the decision narrowed the Solem analyses, where Solem was a guide as to what number of instances or what issues to look at to determine whether a land had been disestablished or diminished by the federal government.

 

Now, that previous analysis specifically said, in the Solem case, that there was not a requirement for specific words of disestablishment. Certainly, an Oneida nation, there is a belief now that that analysis is basically one question: point to me a specific statute that disestablished the land. So I don’t know that we look at the Solem analysis the way that we previously did. We now look at the McGirt question of whether or not disestablishment has occurred.

 

Just yesterday too, noteworthy that the Oklahoma Court of Criminal Appeals, the highest appellate court for criminal cases in Oklahoma, McGirt was applied to the Chickasaw and Cherokee lands as well. The court is expected to soon declare similarly for the Choctaw and Seminole lands here in the state of Oklahoma. All of those again based around essentially the same treaty that Muscogee signed in 1866, where the specific land was granted to the tribes in those agreements.

 

There are a number of other issues that are raised by Professor Barclay that are really important if you look at—I’m going to cite to page 1317 in her law review article—the National Historic Preservation Act, NHPA, the American Indian Religious Freedom Act, the National Register of Historic Places. I could go in depth on these, but for the sake of time, I won’t because these are all important issues and dynamics in this case that really need to be contemplated and thought through.

 

Let me just turn briefly before I turn it over to talk about Judge Logan. The district court judge, in Arizona, denied the motion for TRO, and he wrote a very detailed opinion, and that’s the reason why I focus on that. Really, for my purposes, raising three issues: a) he claimed that the Apache Stronghold lacked standing, citing to Herrera on that. He refers to McGirt to interpret the treaty with the Apache of July 1, 1852, and he suggests that even if the tribe had a right to the land, that Congress extinguished that by selling the land to Resolution Copper.

 

Let me start with the lack of standing issue in Herrera. In Herrera, there was a specific right, certainly, that was done by treaty with the tribe, but an individual member of the tribe had to make that claim. So I think that in Herrera, it made sense. I think it makes sense in McGirt because it is an individual right under the treaty as a result of the Major Crimes Act issue.

 

But certainly, here, in this case, I believe that Judge Logan didn’t get it correct on the lack of standing because here we’re faced with a religious liberty issue where I think it was completely appropriate for Apache Stronghold to have -- their members to have a religious right in the case. So I question the approach there on that issue.

 

I also question whether or not Judge Logan got it correct when we’re looking at, Congress made clear the intent to extinguish any potential trust by selling the land to Copper Resolution. Boy, I don’t want to guess what Justice Gorsuch would do on this one, but I find it difficult to think that there were words of disestablishment included in the Copper Resolution writer that was put into the defense act. So on those two, I question the approach of Judge Logan.

 

But the one where I do have difficulty is when I went to the treaty with the Apache of July 1, 1852, I went through numerous versions. I went through various reads of it. I was hoping that -- I really wanted to make sure that I had read the entirety of it, and the difficulty in comparing the treaty with the Apache, for me, with the treaties involved in Herrera, and McGirt, and other cases is that there were specific -- the issue to the case was specific to the case, as in Herrera. There was a specific right to hunt the land of the Bighorn National Forest.

 

There’s a specific right in McGirt to the land, and, in fact, specific land was issued and granted by fee patent to the Muscogee Creek. And so I expected when I read the treaty of the Apache that I would find something similar, but unfortunately, there is no guarantee of land that I could find within that. So that is the one issue that I did look at and saw that Judge Logan did spend a lot of time focused on that, and that’s the one where I do have some difficulty.

 

But, again, I think that there are a number of other elements, again, in the professor’s law review article that should be contemplated perhaps now that that Interior has pulled back its analysis, and perhaps Interior could take one of those approaches a little bit more appropriately with this case going forward.

 

Nick Marr:  Thank you, both. Stephanie, do you want to say anything in response?

 

Prof. Stephanie Barclay:  Thanks for those terrific comments, A.J., and for your very kind words. I think that you honed in on some fair questions about Judge Logan’s ruling, and I think that you’re right to raise some questions about whether or not the trust action was really being revoked.

 

Another thing that I would add to that—this is something that my friend and colleague, Professor Michalyn Steele has written about—but beyond just the trust doctrine, when it comes to land, in and of itself, the government has plenary power that it has exercised and is meant to exercise for tribes in ways that are beneficial for them.

 

So another argument that she has argued about regarding sacred sites is, even if we set aside the debates about who actually owns land or not, there’s no debate that the Apache once used this land, that this has been their homeland, that they lost the land not voluntarily, and part of the purpose of the government’s plenary power is to do things, like be more protective of religious practices of these people that the government has a lot of control over. So just some additional food for thought to consider, but other than that, thank you, A.J. I thought that was thoroughly informative.

 

Nick Marr:  Great. Do we want to open the floor to audience questions now? What do you think?

 

Prof. Stephanie Barclay:  Sounds great.

 

Anthony J. Ferate:  That sounds great to me.

 

Nick Marr:  Okie dokie. So we have one caller in the queue.

 

Caller 1:  Oh, yes, good afternoon. Thanks very much. A fascinating discussion, and I’m hoping to find that law review article that was mentioned. I’m very sympathetic to First Amendment claims related to religious liberty, but I’m just curious in this case, so I can anticipate some potential issues given the fact that maybe it’s a disputed issue. I apologize that I’m not sufficiently familiar with the facts of the case.

 

But if one were to grant, at least, for the sake of argument, that this was not land owned by the tribes in question, that this was truly public land, and that therefore -- I don’t know the status of the Lemon Test, and if there would be an entanglement issue or anything like that. But I’m wondering if relief could be really for the religious claims by the plaintiffs in this case could be conditioned upon them purchasing if not a fee interest, then, at least, some sort of an easement or something like that, the title and those sorts of issues as they relate to the religious liberty interests seems like that’s a fraught area here.

 

Prof. Stephanie Barclay:  A.J., you want to go first, or you want me to take that one?

 

Anthony J. Ferate:  Yeah. I’m happy to just quickly address it and then let you as well. The challenge is here is I know a very few instances where the federal government is willing to grant a fee interest or other issues like that, at least, in dealing with oil and gas issues that they’ll certainly grant a lease and access and ingress and egress to the land. It’s pretty rare to do some sort of a land transfer or sale beyond, for example, what happened here with Resolution Copper.

 

As far as I think what you were discussing, as far as the land trust issue, is there is a definition of Indian country that is fairly commonly used, and the federal government defines it as really, for this case, land that is held in trust by the federal government for a tribe, and there are a couple of other examples here of Indian country that we won’t discuss for these purposes.

 

But that is land that, for example -- land in eastern Oklahoma that should -- well, let’s I guess use the land in South Dakota, the Rosebud Sioux reservation there. That land is specifically held in trust by the federal government for the use and enjoyment of the tribe. That land exists. The government operates it for the reservation, operates it in conjunction with the tribe that lives there.

 

And so that’s really a contemplation of what land in trust is considered to be. And there’s no question here that the government owns the land. I think that the difficult part is, is that land held in trust for the Apache? And, at least, from the government’s perspective, at this point, I believe that the answer is no, but I’d love to hear more of the argument on that as well.

 

Prof. Stephanie Barclay:  So just some additional thoughts to add to that, and it’s a really interesting question, and you’re right that the government ownership of land is one of the things that makes these cases complicated. So to what I think is one of the first implied questions, is there some sort of Establishment Clause prohibition to the government accommodating religious exercise on its own land? The answer to that is no, I think.

 

So, for example, the government, including federal government, on a number of different prisons accommodate religious exercise all the time, even when that means allowing prisoners to use worship sites on federal land, or things like sweat lodges, and a Tenth Circuit case called Yellowbear.

 

And in the military, there are constitutional and statutory protections that require some accommodation of religious practices, even when you’re in areas like military bases on government property. So the existence and the reality of government ownership doesn’t preclude the ability of government to offer religious accommodation, nor I think does it negate an obligation to do so with federal statutes like RFRA. So I think that that is also true whether or not the land is in trust.

 

RFRA doesn’t say that it only applies to government action that burdens people not on government property. I know it doesn’t say that it only applies for land held in trust. It applies to federal government action, and then the government has a chance to justify whether or not it has reasons for doing what it’s going to do.

 

So in this case, where the sacred site is on government property, what the religious individuals are asking, what the Apaches are asking, is for a chance to be able to continue to use it. They’re not asking to be able to own it in fee simple but to be able to use it as they have for generations, with protections that the government for decades offered until this very recent land transfer legislation that was slipped through and it was the midnight provision of the bill.

 

So I guess one of the things that -- and just a reminder, there will be lots of cases where the government may have really important reasons for needing to do something with this land, and there’s no better way to do it. So the government can make that case under strict scrutiny, but right now, under the current test that was forced by the lower court, the government doesn’t have to justify its actions at all.

 

And, in fact, by being more destructive, it has an incentive to be more harmful to Native American sacred sites because that means that it gets out scot free under RFRA than if the government had said, “We’re going to fine you for trespassing and continuing to use this land.” That logic is backwards. It creates perverse incentives that will not encourage government to try and operate in ways that are going to find other alternatives where available and protect religion where it can.

 

Anthony J. Ferate:  You bring up a really good point there that I neglected to include in my comments, but you’re right, the judge did not require any reason to be given. There was no justification there provided by government for strict scrutiny, and even under strict scrutiny, which obviously has a high bar, there should be some level of reply or justification required. I do agree with you there.

 

Nick Marr:  We don’t have anyone in the queue right now, but I don’t know if you have any questions you’d like to ask -- go ahead.

 

Caller 1:  I’m sorry. I apologize. Yeah, I hadn’t heard that I’d been muted yet, and with lack of other questioners in the queue, maybe, I’ll just go ahead and follow up with the conversation.

 

Nick Marr:  Go for it.

 

Caller 1:  So I greatly appreciate your responses, and I think definitely the facts of this case, they sure sound persuasive, to me, in favor of the tribes. I’m just curious about the potential implications. I know that there’s some debate about, at least, the historicity or textural basis of strict scrutiny as an adjudicative tool, and many of us in the -- in fact, probably many in The Federalist Society are not super comfortable with squishy balancing tests.

 

I’m wondering about just carrying the logic of this forward if the longevity of the use, how relevant is that, and therefore the implications, and I appreciate the citations to the free exercise in religious -- or I’m sorry, in the military context as well as prison context. All three of these seem to -- there’s sort of a fiduciary -- it seems like there’s some kind of fiduciary overlay.

 

But I’m wondering about the implications of this in other instances that seem like there might be some parallels, like, for example, free exercise in using public school spaces or holiday displays with the plastic Santa Claus exception, things like that where there’s government property, whether or not the government could be compelled to divest it, but the extent to which further -- someone who’s almost establishing a religious exercise right by dint of longevity and a reliance interest, almost a laches argument.

 

If I’m laboring a point that you think would be better addressed by me reading the law review article, please tell me, and I definitely don’t want to dominate the conversation, but it just seemed like an interesting follow-up to ask.

 

Prof. Stephanie Barclay:  No, it’s a great follow-up question. A.J., you want to go first on this one?

 

Anthony J. Ferate:  No. By all means, go ahead, and I’ll follow up.

 

Prof. Stephanie Barclay:  Well, feel free to jump in and have some additional commentary because I think it’s a great discussion.

 

Anthony J. Ferate:  Sure.

 

Prof. Stephanie Barclay:  But let me just pause with -- start with the question in the implication that RFRA leads to squishy balancing tests, and maybe offer one alternative view to that. If the question we’re asking is, first of all, what’s the interest that the government is identifying as important or compelling under the language of RFRA, has the government itself treated it that way? Is the government in an even-handed way really acting like this is a compelling interest, and does burdening religion, in this particular context, is it an evidentiary matter, advance whatever it is that the government wants to do?

 

I see that as a pretty discreet question—one the courts are pretty institutionally competent to answer, and that, does a good job of both holding government accountable by making sure that they really do have real justification for what they’re doing that hold up and are more than just “We got a lot of campaign contributions from these foreign companies,” which would not hold up, right? And in that, we—in the heat of litigation—see whether there’s evidence to show that those real interests make sense and hold water here.

 

And that’s a principle that is important, not just for this sort of case with sacred sites but all across the range of religious liberty cases because it is often a situation where government will make claims about why it is or isn’t doing something, and then they don’t hold up in litigation. So, for example, in Yoder, a case from 1972, one of the claims that the government was making about, why it had to force Amish students to go to school, was because interest in educating our citizenry and having them be productive citizens.

 

On cross examination, during the trial in that case, the government witness admitted that they had offered for the Amish to be able to just send their student to school for the first—I don't know—week of the semester, or something, when students that counted for purposes of the tax revenue so that the school could get $17,000, and then after that, they didn’t care if the Amish showed up or not.

 

I just raised that as a point that -- that question is one that I think is not so very squishy, and it is very important that I think courts are willing to ask. And here, under the ruling of the lower court, we don’t even ask that question of government when it comes to Native American sacred sites, and I think that that’s a problem.

 

Anthony J. Ferate:  Yeah. I would agree with you that I’m not sure that I view strict scrutiny as a squishy standard. Candidly, I don’t know if it provides much wiggle room. I think part of that is my con. law professor, I think, basically said in strict scrutiny, that, boy, it’s real tough for the government to come up with a justification in most instances. So I feel that is an important protection for constitutional rights, generally speaking.

 

You mentioned as far as schools and things like that, obviously, I’m working on a case that involves a football coach praying at midfield, and I think in that example, that’s one where we have question as to whether or not teachers, educators, coaches leave their constitutional rights at the door. And, obviously, under the Ninth Circuit’s original opinion, in that case, that they claimed that the answer is no. So we will see.

 

The Supreme Court has written an opinion on it, and obviously, we will see where the Ninth Circuit comes out on that case. There are really important questions and issues particularly when you start talking about the schoolhouse steps, not only for students but for educators and the public at large.

 

Caller 1:  Thank you both very much. I guess my only final comment—and I promise to shut up after this is that, well, with respect to Yoder and the punitive campaign donations that you mentioned that may be a commentary about what far too many of us worship in reality, so thank you again.

 

Nick Marr:  We’ll go to our second questioner now.

 

Steven Kassen (sp):  Hey. Good afternoon. Steven Kassen calling from Austin, Texas. The question I have based on some of the comments the other have said is that I look at -- having been a litigator, that RFRA feels good as a litigator’s tool, right? It allows you to go in there and be a good advocate. It makes for a really good moot court problem—how well can you advocate your side? But the criticism that it’s squishy, it sounds like that, from what I heard, if I understood your comments, it’s not really squishy, and that it was really hard for the government to meet its burden.

 

But there was one of the things -- and when I was in law school, I was like, “Oh, my gosh, Employment Division v. Smith has been the greatest travesty to religious freedom there ever was.” But there’s survey of religious freedom cases, and Gerard Bradley did this in a Hofstra Law Review article, from ’79 to ’89. And it was like the government found a -- the judge found a compelling interest on behalf of the government more than 75 percent of the time.

 

And that seems, to me -- and it could’ve been higher. I’m saying 70 to be conservative, and I want to say that the results were in the 90 percent. But it seems, to me, it always invites the judge to do a self-talk, so right now, right -- so are the Native Americans going to be a disfavored religious group, right? They do a self-talk on what they’re doing and see what they’re doing.

 

So then it’s a roll the dice as to which judge you get. I don’t get a lot of comfort in that because many judges don’t have a transcendent world view. They’re not from the position of Peter and John, where they say -- saying he didn’t tell us not to preach, and we’re going to do what we’re going to do anyways. So many judges don’t believe and buy into that, so their weight that they give to a transcendent value doesn’t matter very much. And so I like your reflections on that, that it feels good to litigate, but it’s really a roll the dice for the judge you get.

 

Prof. Stephanie Barclay:  A.J., do you want me to take this one, or do you want to jump in first? It’s a great question.

 

Anthony J. Ferate:  No. Please feel free. I was going to address the Smith issue, but please, go ahead.

 

Prof. Stephanie Barclay:  Okay. Thank you for the question, and the last questions were great as well. On your point about -- again, is this just leaving too much discretion to judges? But first of all, a point specific to this case, is here the government didn’t even actually try to satisfy strict scrutiny. Under RFRA, at least, it basically put all of its eggs in the substantial burden basket.

 

And it hasn’t even really made a serious argument that it has a compelling interest here, that it was the least restrictive means of accomplishing it. It’ll be interesting to see if it does something different in the upcoming round of briefing, but arguably it waived that argument because it didn’t make it blow.

 

And so, at least, here, it makes it a lot less squishy, right? There’s no argument that the government made on the spaces that it really can’t [inaudible 44:22]. That’s cut and dry. The government should lose under that prong, I think, if the Ninth Circuit gets to the merits of that question.

 

To your larger question about, is strict scrutiny always totally squishy? Is it leaving it up to the judges too much? At least under RFRA, as interpreted by the Supreme Court, with cases that recently—well, within the last decade of the Supreme Court—clarified how the test goes and provided some, I think, rigor and a framework that is -- well, it’s predictable; it’s administrable for lower court.

 

The win rates under RFRA have increased since the Court’s precedent there across different jurisdictions. And so it doesn’t mean that you win all the time. I think there’s still plenty of cases where government is able to show that it has a good reason for doing what it’s doing. But under new RFRA cases, if you include contraceptive [inaudible 45:31] cases, the government’s winning about 50 percent of the time. If you exclude those cases, since a lot of those cases ended up being reversed, then the government’s winning around 70 percent of the time.

 

So that’s a little bit different than the First Amendment context. This something that Professor Mark Rienzi and I wrote about in a Boston College Law Review article. But to the other point that you’re asking, I guess one thing I would ask is, what’s the alternative? Is the alternative that we should just say religion always loses.

 

It can be the case that we say religion always wins, and I don’t think it’s a good option either to say religion always loses, which leaves us with we have to find some way to ask if government is justified in burdening religion in some cases.

 

The other thing to think about in RFRA is we’re not just looking at how it operates when courts are deciding it. We’re also asking about cases that never get brought because of the showing that government knew it would have to make, and so it just decided -- it didn’t take action. If government knew, in this case, it was going to have to satisfy strict scrutiny, it may have thought harder about that land transfer and tried to find another alternative for what it was going to do.

 

And there’s some scholarship that shows that that is an impact that Smith had is that there were just at least government incentives to accommodate religion. And that’s a real-world impact that extends beyond how a particular judge with a particular preference might adjudicate a specific case.

 

Steven Kassen:  I like that. I like your comment. I think that one of the problems, though, is when you get into the -- kind of like the manmade framework, it doesn’t look at the idea that the source of our religious freedom was that constitutionally that the government was protecting an original natural right given by God. And so then when we argue from a position of, well, it’s the First Amendment protects it because it doesn’t look at it as a human natural right. It looks almost like a state-created right.

 

And so if we would say, hey, in a situation of something protected by the bill of rights, that was recognized as a national right. This is just a description so that you have to argue from the natural right forward. And I think that it gets a lot more solid year-round and inject a lot more judicial restraint in what’s going on.

 

Prof. Stephanie Barclay:  Yeah. The point of that—

 

Anthony J. Ferate:  Let me—

 

Prof. Stephanie Barclay:  Oh, go ahead, A.J.

 

Anthony J. Ferate:  No, please, go ahead. No, please, go ahead.

 

Prof. Stephanie Barclay:  No really. You.

 

Anthony J. Ferate:  No. My comment was I was going to just briefly address what you had asked earlier in the discussion about Smith. And I don’t know what the Court’s going to do, but, at least, four justices in a cert denial, a very long cert denial, into 2019, raised the question of, why aren’t we seeing more Smith claims? And they posit out loud that maybe they’d like to see more Smith claims addressing that issue. And so I’m not saying we’re going to have an answer on that, but, certainly, a lot of professors read that cert denial with a close eye, and the chatter was certainly abuzz about what the Court might do with the right case.

 

Prof. Stephanie Barclay:  Yeah. I think that that’s right, and interestingly, there’s a case before the Court right now that does – one of the questions presented is whether or not the Court should revisit its current approach, so the case of Fulton, it’ll be an interesting one to keep an eye on. To your point about natural right, I agree with you that having a historical understanding of natural rights is really important to thinking more about how our constitutional rights operate what they meant as an original matter. There’s more work to be done there.

 

There is some scholarships by some professors, like Jud Campbell, that talks about how natural rights, while viewed as really important, weren’t necessarily viewed as absolute rights. There was still sometimes situations in which government would have a justification for overriding those rights. And this is something I wrote about in my recent Notre Dame Law Review article, “The Historical Origins of Judicial Religious Exemptions,” where I examined different ways in which judges, in the Founding period, in our country as well as in common law England, they would engage in analysis that had some resemblance to aspects of modern strict scrutiny when they were deciding whether or not they would create an exemption from a law. Because in certain context, government action was burdening different types of individual interests or natural rights, and it wasn’t justified.

 

And they would look at what the mischief was, but the problem was the government was holding up is important and whether or not the infringement on the particular right or interest, in that case, actually accomplished the government’s interest, which again has some resemblance to things that [inaudible 50:34] today under strict scrutiny analysis. And that was even in the context of purely fundamental property rights and other things that were viewed as core natural rights around the founding period.

 

So I think that while I can agree that that historical context is really important, I don’t think it precludes the type of analysis that courts can engage in today under strict scrutiny.

 

Nick Marr:  I see no audience questions, and noting that, somehow, we’ve gotten dismissed, which is always a right topic, I’ll offer a chance for any closing remarks, A.J. or Stephanie. And we might close out a couple of minutes early this afternoon.

 

Prof. Stephanie Barclay:  A.J., you want to go first this time?

 

Anthony J. Ferate:  Yeah.  No. I think the Apache Stronghold is an incredibly important case. I think it’s an incredibly important discussion. The issue of whether or not the land is in trust, I look forward to seeing what a court may do with that. But before, with the fact that Biden administration turn to the page a little bit on the Trump administration, I could see the Department of the Interior really trying to look and see if there’s an administrative approach to dealing with this as opposed to trying to continue to say, “Oh, I don’t know.” But that’s really the -- if I’m Apache Stronghold, that’s the optimistic approach that I think that I take during the next four years is trying to work an administrative solution to this rather than trying to rely on the courts going forward.

 

Prof. Stephanie Barclay:  So I would welcome a political solution as well, and I think it would be interesting to see if something like that materialized. But whether or not this property is held in trust, and if a political solution isn’t forthcoming, I also think it would be really valuable if the Ninth Circuit brought clarity to what it means there’s something to count as a substantial burden under the Religious Freedom Restoration Act, and I thought Judge Bumatay had a really excellent dissent outlining how that analysis could go.

 

I want to flag why this is an issue. The people who care about religious liberty, or people of faith should care about, even if they are not themselves Native Americans or don’t have any particular attachment to this sacred site, I just want to think about what the government’s rule is saying in this case. It’s saying that the government can only burden someone’s religion through a fine or penalty, but not by using sheer brute force to make religion absolutely impossible.

 

And so that means under that rule that if the government, instead of, like in Yoder, threatened the Amish with a $5 fine if they didn’t send their kids to school, if instead the government just forcibly rounded up the children and took them to public boarding school without giving the parents any notice, then there’s no burden under RFRA. And as a historical matter, that is precisely what government did to different Native American groups from the 1800s to the 1930s.

 

There’s other things government could do, like padlock churches shut, or confiscate religious relics, or mock people for their religious beliefs, or force them to stop praying. There’s a lot of ways in which this rule -- if the real rule under RFRA not only has no real basis in the text but incentivizes government to be more coercive and to interfere in more dramatic ways into religious exercise. And so that rule, I think, is really problematic, is able to stand, and something that people who care about religious liberty and people of all faiths should be concerned about.

 

Nick Marr:  Well, thank you, both, very much, and on behalf of The Federalist Society, I want to thank you, our speakers, for the benefit of your valuable time and expertise this afternoon and giving us this litigation update and covering lots of free exercise and other constitutional issues.

 

Also, thanks to our audience for calling in your great questions. And as a reminder, we welcome your feedback by email at info@fed-soc.org. Also, be keeping an eye on your emails and our website for announcements about upcoming Teleforum calls. We actually have one coming up here, same number, in about 30 minutes, and we’re covering the Monday decision in Uzuegbunam v. Preczewski. So turn in for that in 30 minutes. Thank you all for joining us this afternoon. We are adjourned.

 

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Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.