Imagine a scenario in which the users of a parcel of land have been there since long before recorded history and have long practiced religion on the site. Now imagine a mining conglomerate coming along and snatching up that piece of land, pushing the people off of it, and then blowing the thing up.
This simple scenario, I hope, would piss off the minimally sane and rational mind. A scenario playing out in Superior, Arizona right now, where Resolution Copper is taking ownership of an area sacred to the San Carlos Apache called Oak Flat, with the help of Sens. John McCain and Jeff Flake, for the tasty ores within.
The primary object of worship in those hills, despite all appearances, is definitely not copper. Sources quoted in a recent op-ed in the New York Times ("Selling off Apache Holy Land") say that the San Carlos Apache have occupied Oak Flat since "before recorded history" and regard the site as their own "Mount Sinai." Consider, for a minute, what it would mean to block cave and crater Mount Sinai. (Pause for consideration).
This land exchange came from a sneakfuck rider in the must-pass 2015 National Defense Authorization Act. The rider never survived as a standalone bill—in fact, according to Congress.gov, it was struck down every year as a standalone between 2005 and 2013, I hope because it violates elementary principles of right and wrong. But now that the land exchange is law, the San Carlos Apache may be unable to access their Mount Sinai in time due to the ravages of block caving and subsidence.
Surely, a civilized society cannot let such a pellucidly clear violation of religious exercise go unchecked. But the truth is that "religious freedom" laws do not go far enough, particularly for Native American religious adherents.
This contention might strike some as verging on scandalous. After all, Burwell v. Hobby Lobby extended federal Religious Freedom Restoration Act protections to corporations. State RFRAs have attempted to expand ad absurdum with Indiana's abortive RFRA law and Arizona's unsuccessful SB 1062, to name a couple. But the trend has been uniformly the same, whether expanding or trying to mint new religious freedom laws: "Religious freedom" has come to embody invidious sentiments toward minorities and the country's deeply-entrenched power imbalances.
The federal RFRA itself incorporates a long and abusive First Amendment case law toward Native American religious claimants on sacred sites. Even so, it continues to revolutionize its protections for Judeo-Christians. This pattern holds true in the 9th Circuit Court of Appeals' 2009 rejection of Navajo claims against the U.S. Forest Service related to the Arizona Snowbowl. A year later, the plaintiffs in Hobby Lobby filed and got unprecedented RFRA protections for a large corporation closely held by Christians.
The legal reasoning behind these disparate outcomes is too detailed to go into, but largely has to do with the standard of review for determining whether the government has "substantially burdened" a person's religion. The federal courts, in short, make it really rough on RFRA challengers to prove a substantial burden in government land use cases. Given that many important aspects of Native American religions happen on government lands, Native Americans are often left in the lurch when the government comes in with bulldozers.
It would be wrong of me to talk about RFRA in the Oak Flat context, so the only point I want to make is that Oak Flat—where they will essentially blow up the Apaches' Mount Sinai—instantly recalls the poverty and futility of religious freedom laws for people who really need them, even as they become a bludgeon for those who don't need them. It has been, of late, "religious freedom for me, Judeo-Christian, but not for thee." What's needed are reforms that make all religious practitioners equal before the law.
As Arizonans, we should be ashamed of our complicity through our elected officials in the Oak Flat land grab. It is true that President Obama raised his voice against the rider after he signed it into law and pledged action. U.S. Rep. Raul Grijalva and other co-sponsors very recently introduced the "Save Oak Flat Act" to repeal the rider, a major move. But taking nothing for granted, we must continue to raise our voices in solidarity with our San Carlos Apache brothers and sisters. We must call for the continued preservation and reproduction of all Native American cultures by improving protections for sacred lands. There is still hope that commonsense principles of right and wrong will prevail.
Tim Workman studied indigenous peoples law and policy at the James E. Rogers College of Law, where he obtained a Master's of Legal Studies in 2015.