Document Type
Brief
Publication Date
4-25-2024
Abstract
No. 21-15295
Apache Stronghold v. United States of America
On Appeal from the United States District Court for the District of Arizona, Honorable Steven P. Logan (2:21-cv-00050-PHX-SPL)
From the Summary of the Argument
Once again, the Apache community has been denied the rights afforded to it by the Religious Freedom Restoration Act’s plain text—this time by a panel of the en banc court in a deeply contested and divided decision. The full Ninth Circuit should rehear the case en banc to restore the Religious Freedom Restoration Act’s full scope of protection for the Indigenous community, who has uniquely been deprived of its right to worship. The en banc panel here properly disposed of the unduly restrictive definition of “substantial burden” in Navajo Nation v. United States Forest Service, 535 F.3d 1058 (9th Cir. 2008) (en banc). And yet the opinion did no justice for Indigenous worshippers or the rule of law. Rather, it fashioned a new, unworkable standard that—even more than Navajo Nation—places Indigenous worship in a uniquely disfavored category relative to other faith traditions.
Recommended Citation
Barclay, Stephanie Hall; Kessler, Meredith Holland; and Matozzo, Francesca, "Brief Amicus Curiae of the International Council of Thirteen Indigenous Grandmothers, the MICA Group, and a Tribal Elder in Support of Plaintiff-Appellant's Petition for Full En Banc Rehearing" (2024). Court Briefs. 23.
https://scholarship.law.nd.edu/sct_briefs/23
Comments
Amici are a Tribal Elder and other Native American cultural heritage and rights organizations. Amici submit this brief to highlight the history of the U.S. government’s seizure of Indigenous sacred sites, the en banc majority’s erroneous new substantial-burden test, and the problematic double standard that test creates.
Table of Authorities include:
Stephanie Hall Barclay & Michalyn Steele, Rethinking Protections for Indigenous Sacred Sites,134 Harv. L. Rev. 1294 (2021).