Land, “Sacred Spaces,” and Free Exercise of Religion: Musings About Apache Stronghold v. United States
Quickly, which of the following two actions most burdens the practice of religion:
(a) Preventing a football coach from praying at the 50-yard line after a game?
(b) Allowing a copper mine to take over one of the most sacred sites of a religion?
The intuitive answer is surely the latter. But the actual answer appears to be quite the opposite, at least judging by two cases decided days apart in late June.
In Kennedy v. Bremerton School District, the U.S. Supreme Court held that a high school football coach’s post-game ritual of kneeling at midfield to offer a quiet personal prayer was protected by the Free Exercise Clause (as well as the Free Speech Clause). But just three days earlier, in Apache Stronghold v. United States, the Ninth Circuit had held that the federal government’s transfer of title of Oak Flats, sacred ground to the Apache tribe, did not violate the Religious Freedom Restoration Act. In doing so, the Court relied heavily on an earlier Ninth Circuit decision, Navajo Nation v. United States Forest Service, 535 F.3d 1058 (9th Cir. 2008) (en banc), and the U.S. Supreme Court’s decision in Lyng v. Northwest Indian Cemetery Protective Association, 485 U.S. 439 (1988)(O’Connor, J.), holding that a federal plan to build a road over and permit logging on land a tribe held sacred and used for religious worship, did not infringe upon the tribe’s free exercise of religion.
Much ink will be spilled over Kennedy v. Bremerton, but this post will focus primarily upon Apache Stronghold.
Land Use and Religion: A Contrast
Traditionally, Native American tribes favored uses of land that kept land in a largely undeveloped state. Land use by Europeans and others who came to North America evolved into something quite different. They did not allow land to remain in its natural state, but over generations both developed it for a variety of commercial purposes and exploited it for mineral resources. This dynamic process, in which land was bought and sold, allowed property to flow to its “highest and best use.” The policy of promoting the alienability of property, and disfavoring restraints on alienation, reflects that approach to property. See, e.g., Luke Meier & Rory Ryan, Aggregate Alienability, 60 VILL. L. REV. 1013, 1014 (2015). The clash of approaches worked out quite poorly for the Native American tribes, who were displaced from economically valuable lands and whose lands were exploited for drilling and mining purposes, inter alia. See, McGirt v. Oklahoma, 140 S.Ct. 2452, 2460-69, 2473-74 (2020)(Gorsuch, J.)(discussing displacement of Native American tribes); id. at 2483-85 (Roberts, J., dissenting)(same); Johnson v. McIntosh, 21 U.S. 543, 587-592 (1823)(limiting “title” to land granted by native tribes as limited to the right of “occupancy” without the right to transfer title to others, and contrasting the different use of land by tribes and by European settlers).
The significance of land for religious worship, i.e., sacred spaces, appears to reflect a similar pattern. Religious worship or devotional acts for many Native American tribes take place in natural settings, on land owned by the U.S. Government, in trust for a tribe or otherwise, or state governments. Religious worship and rites appear to be tied to particular locations. Judeo-Christian religions tend reflect a different relationship between property and religious worship. Congregate religious worship tends to take place on property owned by the religious sect, and such privately-owned sacred spaces can be shifted from one place to another by the customary means of the sale and purchase of property.
It appears that the constitutional and statutory protections systematically provide much greater protection for Judeo-Christian religions than for Native American religions, in terms of protecting sacred spaces that serve as the site of religious worship.
Apache Stronghold & the RFRA
In Apache Stronghold, Congress adopted legislation mandating the swap of Oak Flats (or Chi’chil Biłdagoteel), historically-Apache-tribe-land held by the federal government, to Resolution Copper in return for land owned by the mining company. Apache Stronghold’s challenged the government’s action under the Religious Freedom Restoration Act of 1993, Pub. L. 103-141, 107 Stat. 1488 (codified at 42 U.S.C. §§ 2000bb to 2000bb-4)(“the RFRA”). (Even though the RFRA was held unconstitutional as applied to state and local governments, City of Boerne v. Flores, 521 U.S. 507 (1997), it remains applicable to the federal government, see, e.g., Burwell v. Hobby Lobby Stores, 573 U.S. 682 (2014).) Apache Stronghold primarily argued that handing Oak Flat over to Resolution Copper for mining would “substantially burden” Apache Stronghold’s members by making it “impossible” for them to worship on Oak Flats.
The RFRA provides:
Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person—
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental interest.42 U.S.C. § 2000bb.
The Court in Apache Stronghold held that the government need neither show a compelling governmental interest nor adoption of the least restrictive means to further that interest, because the land swap could not qualify as an action that substantially burdened Apache tribe members’ exercise of religion. Congress had enacted the RFRA to counteract Employment Division v. Smith, 494 U.S. 872, 883–85 (1990), and re-establish the “balancing” test established by Sherbert v. Verner, 374 U.S. 398 (1963), and Wisconsin v. Yoder, 406 U.S. 205 (1972). But those cases dealt with particular species of government actions, ones that either deprived individuals of benefits or subjected them to burdens due to religiously-inspired conduct. Thus, in the majority’s view “substantial burden” was not to be read literally, but as a term of art:
[U]nder RFRA, the government imposes a substantial burden on religion in two—and only two—circumstances: when the government “force[s individuals] to choose between following the tenets of their religion and receiving a governmental benefit” and when the government “coerce[s individuals] to act contrary to their religious beliefs by the threat of civil or criminal sanctions.”Apache Stronghold, supra, slip op. at 25.
The effect of exchanging Oak Flat upon Apache Stronghold’s members’ ability to engage in religious worship by accessing a sacred site fell outside Sherbert/Yoder framework and thus could not be characterized as “a substantial burden” for purpose of the RFRA. As a result, the land swap was not subject to RFRA-mandated “strict scrutiny.” Apache Stronghold, supra, slip op. at 25-26.
The Court acknowledged “harsh[ness]” of the result for Apache Stronghold’s members, but explained that “multiple reasons,” made such a harsh result necessary. Id. at 44; accord, id. at 57-58. But such harshness was necessary to protect the government’s exercise of dominion over public property, free of any RFRA limitations. Id. at 44-46.
The panel quoted Navajo Nation, supra, as explaining: “were the definition of ‘substantial burden’ under RFRA any broader than the Sherbert/Yoder framework, ‘any action the federal government were to take, including action on its own land, would be subject to the personalized oversight of millions of citizens’” Id. at 44 (quoting Navajo Nation, supra, 535F.3d at 1063).
In particular, “a wide array of government or government-authorized actions could, in some worshippers’ views, render ‘impossible’ exercises of religion or otherwise obstruct the land on which those exercises would take place.” Id. at 45. And “such beliefs could easily require de facto beneficial ownership of some rather spacious tracts of public property.” Id. (citing Lyng, 485 U.S. at 453). Indeed, the panel continued, when it comes to the federal government’s use of its own land, “giving one religious sect a veto over the use of public park land would deprive others of the right to use what is, by definition, land that belongs to everyone.” Id. (citing Navajo Nation, 585 F.3d at 1063–64.) Indeed. “[e]very new hiking path, ranger station, or ‘Keep Off the Grass’ sign in every National Park could deny access to land or ‘physically destroy the environmental conditions and the privacy’ necessary to some religious practices.” Id. (citing Lyng, 485 U.S. at 449).
Moreover, the panel explained, Apache Stronghold’s broader definition of “substantial burden” would also create “another, deeper problem”: “It would force judges to make decisions for which we are fundamentally unsuited. . . . [w]ho are we to say whether government action has an ‘objective’ impact on religious observance or merely ‘diminishes [a worshipper’s] subjective spiritual fulfillment’”? Id. at 46.
In short, neither the Free Exercise Clause, nor the statute designed to re-impose a “strict scrutiny” test upon government actions burdening religious exercise, offers any protection for sacred sites held by the federal government, no matter how central to a tribe’s religion.
This categorical exclusion of Free Exercise claims to access sacred sites on federal lands is strikingly discordant with emerging international law norms. Human Rights Council Resolution 6/37 (Nov. 25, 1981), urges national government “[t]o exert the utmost efforts, . . ., to ensure that religious places, sites, shrines and symbols are fully respected and protected and to take additional measures in cases where they are vulnerable to desecration or destruction[.]” Id., § 9(e) (emphasis added). And the U.N. General Assembly’s Declaration on the Rights of Indigenous Peoples (Sept. 13, 2007) provides: “Indigenous peoples have the right to manifest, practise, develop and teach their spiritual and religious traditions, customs and ceremonies; the right to maintain, protect, and have access in privacy to their religious and cultural sites; the right to the use and control of their ceremonial objects; and the right to the repatriation of their human remains.” Article 12(1) (emphasis added).
The Religious Land Use and Institutionalized Persons Act
The Religious Land Use and Institutionalized Persons Act of 2000, Pub. L. 106-274, 114 Stat. 803 (codified at 42 USC §§2000cc to 2000cc-5) (“RLUIPA”), provides additional protection for sacred spaces. As Senators Edward Kennedy and Orren Hatch explained in their Joint Statement summarizing the legislation:
The right to assemble for worship is at the very core of the free exercise of religion. Churches and synagogues cannot function without a physical space adequate to their needs and consistent with their theological requirements. The right to build, buy, or rent such a space is an indispensable adjunct of the core First Amendment right to assemble for religious purposes.
146 CONG. REC. S7774 (daily ed. July 27, 2000).
But the types of sacred spaces protected are more of the type critical for congregational worship by Judeo-Christian sects. RLUIPA provided:
No government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution, unless the government demonstrates that imposition of the burden on that person, assembly, or institution—
(A) is in furtherance of a compelling governmental interest; and
(B) is the least restrictive means of furthering that compelling governmental interest.
Land use regulation is focused on zoning and landmarks law. Thus, “land use regulation” is defined as:
a zoning or landmarking law, or the application of such a law, that limits or restricts a claimant’s use or development of land (including a structure affixed to land), if the claimant has an ownership, leasehold, easement, servitude, or other property interest in the regulated land or a contract or option to acquire such an interest.
RLUIPA guarantees religious institutions whose houses of worship are under conventional property ownership (i.e., “an ownership, leasehold, easement, servitude, or other property interest in the regulated land”) the right to use and develop their property free of the customary zoning limitations and historic preservation requirements imposed by state and local governments (unless the government’s action can survive “strict scrutiny”). RLUIPA also protects congregations’ right to acquire property free from discriminatory land use regulations. Thus, RLUIPA tends to protect religious sects whose sacred spaces are not reliant upon the government, i.e., do not lie in natural undeveloped settings under public ownership.
And indeed, RLUIPA does not even cover government’s acquisition of a religious institution’s property by eminent domain. St. John’s United Church of Christ v. City of Chicago 502 F.3d 616 (7th Cir. 2007), cert. denied, 553 U.S. 1032 (2008) (acquisition by eminent domain of a cemetery owned by St. John’s United Church of Christ).
Ironically, the U.S. Supreme Court appears to be expanding the protection for religiously-inspired conduct outside of the setting of congregate worship and religious ceremonies. Thus, there is a strong push to allow proprietors to refuse to provide service in connection with same-sex marriage ceremonies that conflict with their religious beliefs, see, e.g., Masterpiece Cakeshop v. Colorado, 138 S. Ct. 1719, 1723, 1732 (2018) (Kennedy)(commitment ceremony), to provide coverage for medical procedures their employees seek that violate their religious beliefs as employers, Burwell v. Hobby Lobby Stores, 573 U.S. 682 (2014)(applying the RFRA), and for religious exemptions to vaccine mandates, Does 1-3 v. Mills, 142 S.Ct. 17 (Oct. 29, 2021) (Gorsuch, J., dissenting from denial of injunctive relief). Indeed, Smith itself is under attack on constitutional grounds. Fulton v. Philadelphia, 141 S. Ct. 1868, 1882-83 (2021)(Barrett, J. concurring)(raising questions regarding the choice of a test that would replace Smith); id 1877-79 (Alito, J.)(urging Smith’s overruling). And as we have seen earlier, the RFRA has been interpreted by the Ninth Circuit to focus upon protecting those who engaged in religiously-inspired conduct.
Kennedy v. Bremerton School District is a part of this development. The decision may make sense on its own terms. But consider the decision in comparison with Apache Stronghold, and in terms of what one might call “sacred spaces.” Coach Kennedy has a constitutional right to pray at midfield on a football field. A football field is not a “sacred site” in Kennedy’s religion (though granted some see football as a religion), and yet he is entitled to pray there rather than in the alternative more private locations the School District offered for that purpose. Yet, Native American tribes can assert no Free Exercise right, nor any right under the RFRA (or RLUIPA), to natural sacred spaces in which they gather for congregational religious ceremonies. There are certainly reasons for the differing results in the two cases. Nevertheless, surely it is no less central to a religion to protect sacred spaces in which believers gather for religious purposes than to protect religiously-inspired conduct, even praying in the middle of a football field.
And one cannot help but wonder the doctrine developed in cases like Apache Stronghold, Navajo Nation, and Lyng would have been different were the sites in such cases sacred to a Judeo-Christian religion.
Apache Stronghold apparently intends to seek certiorari, and so perhaps the Supreme Court will take up the case. It will be interesting to see if the Court’s recently enhanced solicitude for Free Exercise claims will lead it either to reverse Lyng on constitutional grounds, or read the RFRA to encompass land use decisions such as that made by the Government with respect to Oak Flats.
For additional reading on this subject, see, Stephanie Hall Barclay & Michalyn Steele, Rethinking Protections For Indigenous Sacred Sites, 134 HARV. L. REV. 1294, 1304-05 (2021); Jack F. Trope, Existing Federal Law and the Protection of Sacred Sites: Possibilities and Limitations, CULTURAL SURVIVAL QUARTERLY MAGAZINE (Dec. 1995).
 As Meier and Ryan explain: “In order for th[e] flow [of a resource] to the ‘best’ user to occur, the resource must remain free of legal impediments to transfer. As such, the common law has generally strived to keep property freely alienable, particularly real property.” Id. at 1014. Accord, JOSEPH WILLIAM SINGER, INTRODUCTION TO PROPERTY §1.3 at 10-11 (2d ed. 2005)(“It is a fundamental tenet of the property law system that property should be “alienable,” meaning that it should be transferable from one person to another . . . [to] enable[e] efficient transactions and property use to occur”)
 Indian Law Resource Center, Protecting Sacred Sites; Stephanie Hall Barclay & Michalyn Steele, Rethinking Protections For Indigenous Sacred Sites, 134 HARV. L. REV. 1294, 1304-05 (2021). As the Indian Law Resource Center explains:
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.
 Jack F. Trope, Existing Federal Law and the Protection of Sacred Sites: Possibilities and Limitations, CULTURAL SURVIVAL QUARTERLY MAGAZINE (Dec. 1995) (a “large number” of sites sacred to Native religions are located on federal land).
 In 1978, the federal government ostensibly dedicated itself to protecting and preserving Native American tribe members’ freedom of religion, including access to religious sites. The Indian Religious Freedom Act of 1978, Public Law No. 95–341, 92 Stat. 469 (Aug. 11, 1978), announced the
“policy of the United States to protect and preserve for American Indians their inherent right of freedom to believe, express, and exercise the traditional religions of the American Indian . . including but not limited to access to sites, use and possession of sacred objects and freedom to worship through ceremonials and traditional rites.”
However, the Act, a joint resolution, lacked enforcement mechanisms. Lyng, supra, 485 U.S. at 455-56.
 See, National Defense Authorization Act for Fiscal Year 2015, Pub. L. No. 113-291, § 3003, 128 Stat. 3732–41 (2014) (codified at 16 U.S.C. § 539p). The land swap was conditioned, in part, upon the Secretary of Interior consulting with affected Indian tribes and consulting with Resolution Copper to seek “mutually acceptable measures” that would address such concerns. 16 U.S.C. § 539p(c)(3).
Apache Stronghold argued that Oak’s Flats was historically part of the Tribe’s territory, and that in the Treaty of Santa Fe in 1852 the United States promised to “designate, settle, and adjust [the Apache’s] territorial boundaries, and pass and execute in their territory such laws as may be deemed conducive to the prosperity and happiness of [the Apache].” Apache Stronghold, supra, slip. op. at 54, 56. But apparently the federal government has never made the required designations. Id. at 54, 56. Thus, the Government argued, the Treaty of Santa Fe does not create an “enforceable trust duty” running to the Tribe with regard to any territory. Id. at 54-55. The Court accepted the Government’s argument; no treaty obligation was enforceable because the Government had failed to designate the Apache tribe’s territorial boundaries, making Oak Flats federal land to which no “trust obligations” were applicable. Id. at 55-57. In addition, the Government argued that 16 U.S.C. § 539p statutorily abrogated the provision of the Treaty of Sante Fe upon which Apache Stronghold relied; the Court did not find the need to reach that argument. Id. at 54-55.
 Ordinarily a later, more specific statute, like the land swap legislation, would supersede an earlier, more general statute, such as the RFRA. But the RFRA includes the following provision requiring any superseding statutes to explicitly reference the RFRA.
Federal statutory law adopted after November 16, 1993, is subject to this chapter unless such law explicitly excludes such application by reference to this chapter.
For a discussion of the validity of such statutory provisions, see Bernard W. Bell, Dead-Hand Control and “Magical Passwords”: Center for Investigative Reporting v. DOJ, a three-part series on this blog accessible here, here, and here.
 The history is apparently a bit more complex. The House committee report asserts that the bill’s “definition of governmental activity . . . is meant to be all inclusive.” Thus,“ [a]ll governmental actions which have a substantial external impact on the practice of religion would be subject to the restrictions in this bill. . . regardless of whether the government activity ‘coerce(s) individuals into violating their religious beliefs…[or] penalize(s) religious activity by denying any person an equal share of the rights, benefits and privileges enjoyed by any citizen.'” H. Rpt. 108-33 at 6 (1993).
The Report then discussed the Supreme Court’s Free Exercise jurisprudence, of which Lyng was a part. The House Report explained that the bill was intended to codify “strict scrutiny” as the appropriate mode of analysis in Free Exercise cases, and that the legislation should be viewed neither as “approv[al] nor disapprov[al] of the result in any particular” Supreme Court decision. Id. at 7. Even so, the Committee noted a passage in Smith in which Justice Scalia had cited Lyng with approval, implicitly suggesting that it disagreed with the approach in Lyng. Id. at 3.
 Apache Stronghold’s assertion of Free Exercise rights did not involve any objection “to the presence on Oak Flat of hikers, climbers, and other recreational users who now use the land.” Slip op. at 45. But this did not matter, because “other religions” (read other tribal religions), not before the Court, have stricter requirements. Id. Ironically, of course, the land transfer would confer upon the mining company a virtually absolute veto over any recreational use of Oak Flats.
 This passage in Lyng exhibits a strikingly dismissive and cavalier attitude to tribal religion, even if one agrees with the general principle the Supreme Court was enunciating. Perhaps it is an unfair comparison, but ironically, in Kennedy v. Bremerton School District, Coach Kennedy could not be directed to “keep of the grass” at midfield when he sought to pray.
 See, Special Rapporteur on Freedom of Religion or Belief, United Nations, International Standards.
 Department of Economic and Social Affairs, United Nations, United Nations Declaration on the Rights of Indigenous Peoples (webpage); see generally, Sacred Land Film Project, International Effort to Protect Sacred Places (webpage). The United States, Canada, Australia, and New Zealand voted against the Declaration. See, United Nations Declaration of the Rights of Indigenous People (webpage), supra. The United States subsequently endorsed the Declaration (as did the other three dissenting states). Indian Law Resource Center, The United States is now the only country opposing the UN Declaration on the Rights of Indigenous Peoples (undated); Cultural Survival, VICTORY!: U.S. Endorses UN Declaration on the Rights of Indigenous Peoples (undated).
 Technically, RLUIPA appears to require the religious sect to have obtained “a contract or option to acquire” a real estate interest to gain its protections.
 Accord, Congregation Adas Yereim v. City of New York, 673 F. Supp. 2d 94 (E.D.N.Y. 2009); Faith Temple Church v. Town of Brighton. 348 F. Supp. 2d 18 (W.D.N.Y. 2004)(condemnation of property religious sect acquired to build a church); City and County of Honolulu v. Sherman, 110 Hawai’i 39129 P.3d 542 (2006); contra, Cottonwood Christian Center v. Cypress Redevelopment Agency, 218 F. Supp. 2d 1203 (C.D. Cal. 2002)(condemnation of property religious sect acquired to build a church).
Writing articles on the subject seems to have been something of a cottage industry in the first decade of the 2000s. See, e.g., Daniel N. Lerman, Taking the Temple: Eminent Domain and the Limits of RLUIPA, 96 Geo. L.J. 2057 (2008)(student note); Cristina Finetti, Limiting the Scope of the Religious Land Use and Institutionalized Persons Act: Why RLUIPA Should Not Be Amended to Regulate Eminent Domain Actions Against Religious Property, 38 Seton Hall L. Rev. 667 (2008)(student comment).
 Permanence is one difference. See, Lakewood v. Plain Dealer Publ. Co., 486 U.S. 750, 778 (1988) (Justice White, dissenting) (“the Plain Dealer’s right to distribute its papers does not encompass the right to take city property . . . and appropriate it for its own exclusive use, on a semipermanent basis, by means of the erection of a newsbox”); Graff v. City of Chicago, 9 F.3d 1309, 1314 (7th Cir. 1993)(newsstand)(“[a]t the outset we note that no person has a constitutional right to erect or maintain a structure on the public way”). Coach Kennedy is neither claiming the right to exclude other uses of the football field, nor even priority access.
 Given Justice Gorsuch’s solicitude to Free Exercise claims, and the sensitivity to injustices to Native Americans he exhibited in McGirt v. Oklahoma, supra, his approach to Apache Stronghold might prove particularly interesting were the Court to grant certiorari. Indeed, the case raises treaty interpretation and treaty abrogation issues that, while different, are not entirely dissimilar from those in McGirt. Apache Stronghold, supra, at 54-55; see footnote 5, supra.