In mid-March 2026, the U.S. Forest Service completed the transfer of 2,422 acres of the Tonto National Forest, including Chí’chil Biłdagoteel, or Oak Flat, to Resolution Copper.^[1] The deposit beneath Oak Flat is one of the largest undeveloped copper deposits in North America. Resolution Copper plans to extract it through panel-cave mining, a technique the federal Environmental Impact Statement acknowledges will produce a subsidence crater between 800 and 1,115 feet deep and roughly 1.8 miles across. The Western Apache have conducted religious ceremonies at Oak Flat since time immemorial. They consider it a “direct corridor” to the Creator.^[2] The Ninth Circuit, sitting en banc, held by a 6–5 vote that the destruction imposes no substantial burden on Apache religious exercise under the Religious Freedom Restoration Act.^[3] The Supreme Court denied certiorari in May 2025. Justice Gorsuch, joined by Justice Thomas, called the refusal “a grave mistake.”^[4]

The same Court that declined to hear Apache Stronghold has, over the past decade, expanded religious liberty protection in many directions. It has vindicated a football coach’s right to pray at midfield. ^[5]  It has required states to fund religious schools on equal terms. ^[6] It has exempted closely held corporations from contraceptive coverage mandates.^[7]  The puzzle is not that the Court chose differently in Apache Stronghold. It is that the doctrinal architecture the Court has been building systematically generates this result. The result tracks a line between portable and placebased religious exercise rather than between meritorious and unmeritorious claims. 

The federal government manages nearly 28% of the land in the United States, much of it in the West, and many Indigenous sacred sites now sit on land the federal government owns or manages.^[8] As Stephanie Barclay and Michalyn Steele have documented, tribes whose sacred sites sit on government property are, in their phrase, “at the mercy of government permission” to practice.^[9] This essay argues that the asymmetry runs deeper than property rights or land law. It is built into the substantial burden test itself. The fix is in RFRA’s text: the statute prohibits substantial burdens on religious exercise, and physical destruction of a sacred site is, in any ordinary reading, a substantial burden. The Court has so far declined to apply the statute that way. 

I. Lyng and the Substantial Burden Asymmetry 

A. The Doctrinal Framework 

In Sherbert v. Verner, the Court held that the Free Exercise Clause requires government to justify substantial burdens on religious exercise under strict scrutiny.^[10] Twenty-seven years later, in Employment Division v. Smith, Justice Scalia’s majority abandoned that framework, holding that neutral, generally applicable laws do not violate the Clause even when they substantially burden religious exercise.^[11][12] Congress responded in 1993 with the Religious Freedom Restoration Act, which restored the Sherbert framework as a matter of statutory law. RFRA prohibits the federal government from “substantially burden[ing] a person’s exercise of religion” unless the burden is “the least restrictive means of furthering [a] compelling governmental interest.”¹² It applies to “all” federal law¹³ and provides that “nothing” in its provisions “shall be construed to authorize any government to burden any religious belief.”¹⁴ In City of Boerne v. Flores, the Court held that Congress had exceeded its enforcement power as applied to the states but left RFRA fully in force against federal action.^[13] In 2000, Congress amended RFRA’s definition of religious exercise to incorporate the broader definition in the Religious Land Use and Institutionalized Persons Act (RLUIPA), which includes “[t]he use, building, or conversion of real property for the purpose of religious exercise.”^[14]

B. Lyng

Lyng v. Northwest Indian Cemetery Protective Association came down between Sherbert and Smith, in 1988. The U.S. Forest Service proposed building a logging road through the Chimney Rock area of the Six Rivers National Forest, sacred land of the Yurok, Karok, and Tolowa tribes. The government’s own commissioned study concluded the road would “virtually destroy” the tribes’ ability to practice their religion.^[15] Justice O’Connor, writing for the Court, accepted that prediction and reversed the Ninth Circuit’s injunction anyway. “The Constitution simply does not provide a principle that could justify upholding respondents’ legal claims,” she wrote.^[16] The Free Exercise Clause is “written in terms of what the government cannot do to the individual, not in terms of what the individual can exact from the government.”^[17] The reasoning turned on property: 

“Whatever rights the Indians may have to the use of the area, those rights do not divest the Government of its right to use what is, after all, its land.”^[18]

C. The Government Property Exception 

Under Lyng, the question whether a religious burden is substantial collapses into the question of whose property is at issue. RFRA points the other way. It applies to “all” federal law, forbids any construction that authorizes a burden on religious belief, and, after the 2000 RLUIPA amendment, defines religious exercise to include real-property religious use. None of this leaves obvious room for a government-property exception. The practical effect is a doctrinal divide. Religious exercise that can move with the believer receives the ordinary RFRA inquiry: burden, compelling interest, least restrictive means. Religious exercise that depends on a specific place is stopped at the threshold if the place belongs to the government. Portable religion gets RFRA. Place-based religion gets Lyng. 

II. Apache Stronghold 

A. Background 

At least twelve standalone bills aimed at transferring Oak Flat to Resolution Copper failed in Congress. In 2014, legislators attached the transfer as a last-minute rider to the FY2015 National Defense Authorization Act, revoking the Eisenhower and Nixon protections.^[19] The rider required the federal government to transfer Oak Flat to Resolution Copper within 60 days of the Forest Service publishing a final environmental impact statement. Apache Stronghold filed suit under RFRA in 2021, as the Department of Agriculture prepared to publish the initial environmental impact statement and the 60-day countdown to transfer approached. 

B. The Ninth Circuit En Banc Decision 

In Apache Stronghold v. United States, the Ninth Circuit sitting en banc produced an unusual decision. Eleven judges heard the case. Each judge voted on two separate questions, and the votes split differently on each, producing two cross-cutting majorities within a single opinion. On the first question, whether RFRA and RLUIPA are interpreted uniformly and whether preventing access to religious exercise can be a substantial burden, six judges (Chief Judge 

Murguia plus Judges Gould, Berzon, R. Nelson, Lee, and Mendoza) voted yes, overruling the narrow definition of substantial burden from Navajo Nation v. U.S. Forest Service, an earlier Ninth Circuit en banc decision that had rejected Native sacred-site claims at the San Francisco Peaks and held that a substantial burden arises only when government coerces a person to violate her beliefs or denies a benefit on the basis of religious exercise.^[20] On the second question, whether RFRA leaves Lyng intact, six different judges (Judge Collins writing, joined by Judges Bea, Bennett, R. Nelson, Forrest, and VanDyke) voted yes, holding that RFRA “subsumes, rather than overrides, the outer limits that Lyng places on what counts as a governmental imposition of a substantial burden,” and that under Lyng, a disposition of federal real property does not impose a substantial burden when it has “no tendency to coerce individuals into acting contrary to their religious beliefs.”^[21] The Ninth Circuit overruled Navajo Nation’s narrow substantial-burden test, then imported Lyng’s government-property logic into RFRA. 

Judge R. Nelson, voting with both majorities, made the move explicit in concurrence:

“Because RFRA does not overrule the Supreme Court’s binding precedent in Lyng, Apache Stronghold has no viable RFRA claim.”^[22] 

Chief Judge Murguia, in dissent, relied on dictionary definitions of “substantial” and “burden” at RFRA’s enactment^[23] and concluded that “any ordinary understanding of the English language” shows the destruction of Oak Flat is a substantial burden on Apache religious exercise.^[24]

C. The Gorsuch Dissent from Cert Denial 

Apache Stronghold petitioned the Supreme Court for certiorari. In May 2025, the Court denied the petition. Justice Gorsuch, joined by Justice Thomas, dissented. He identified three reasons the Ninth Circuit was wrong and a fourth reason the case nonetheless merited review. First, the text: “Exactly nothing in the phrase ‘substantial burden’, or anything else in RFRA’s text, hints that a different and more demanding standard applies when (and only when) the ‘disposition’ of the government’s property is at issue.”^[25] Second, the outlier status. Six Courts of Appeals (the Fourth, Sixth, Seventh, Eighth, Tenth, and Eleventh) have read RFRA’s substantial burden definition broadly, holding that preventing religious exercise is, necessarily, a substantial burden on it. But they adopt a broad reading of “substantial burden” that the Ninth Circuit rejected.^[26] Third, the TVA v. Hill analogy: Congress has “adopted all sorts of laws restricting the government’s power to dispose of its real property,” most famously the Endangered Species Act, which once halted a nearly completed federal dam to protect the snail darter.^[27] Fourth, the slippery slope. After the Ninth Circuit’s decision, the National Park Service invoked the same reasoning to deny the 

Knights of Columbus permission to hold their 60-year-old annual Memorial Day Mass at Poplar Grove National Cemetery, arguing that the Knights suffered “no burden” under RFRA from the discontinuation.^[28] Justice Gorsuch put it sharply: under the Ninth Circuit’s logic, if a historic church like Ebenezer Baptist, where Martin Luther King Jr. preached, were on federal land, the government could prohibit worship there. 

D. The Aftermath 

The Supreme Court denied Apache Stronghold’s petition for rehearing on October 6, 2025. On March 13, 2026, the Ninth Circuit affirmed the denial of preliminary relief against the Oak Flat land exchange and dissolved the administrative stay. That same day, a federal patent conveyed the 2,422.11-acre federal parcel to Resolution Copper. USDA announced on March 16 that the Forest Service had completed the Southeast Arizona Land Exchange and issued the final Record of Decision. On April 22, 2026, Apache Stronghold filed an amended complaint asking the district court to restore the pre-transfer status quo, including by reversing or rescinding the land conveyance. In related Ninth Circuit litigation, conservation plaintiffs and the Inter Tribal Association of Arizona sought rehearing en banc on May 1, 2026.^[29]

III. Two Different Kinds of Religious Practice 

A. The Portability Assumption 

The paradigmatic religious-liberty cases involve practices the adherent carries with them: prayer, dietary observance, dress, sabbath observance, refusal to participate in disfavored conduct, expressive activity, and organizational autonomy.^[30] When the practice intersects with the government, the intersection takes a familiar form: a generally applicable rule, a denied benefit, a regulatory burden, a forced participation. The remedy is correspondingly portable. The government accommodates by lifting the rule, restoring the benefit, removing the burden, or relieving the participation. Call this the portability assumption. It is not announced as a doctrinal premise. It is the implicit paradigm against which such claims are measured. 

B. Place-Based Religion 

Indigenous religious practice is, in many cases, inextricably tied to specific places: places where particular ceremonies must occur, where particular spirits are present, where the relationship with the Creator is mediated through the land itself. Oak Flat is not a convenient or preferred site. 

It is, in Apache cosmology, the place where the religious exercise must be performed. The Sunrise Ceremony depends on plants gathered at Oak Flat that the Apache believe carry “the spirit of Chí’chil Biłdagoteel.” The girl coming of age is painted with white clay from the ground at Oak Flat, as her mother and grandmother were before her. The Ga’an, spirit messengers between the Apache and their Creator, are believed to enter the ceremony from the mountains there.^[31] The destruction of the place is not a burden on the ceremony. It is the permanent end of the ceremony. 

Pilgrimage sites in Catholicism, Jerusalem in Judaism, Mecca and Medina in Islam all reflect a place-based structure. Bear Butte, Mato Tipila, the San Francisco Peaks at the heart of Navajo Nation, and Mauna Kea each carry comparable significance for the tribes whose ceremonies depend on them. But Indigenous place-based religion in the United States is structurally distinctive in one respect: the relevant places are, almost without exception, on land the federal government took from the tribes and now owns. As Justice Gorsuch noted, the Western Apache “enjoyed a vast territory that embraced Oak Flat” before the United States acquired it through the Treaty of Guadalupe Hidalgo, the unfulfilled Treaty of Santa Fe, and the Apache Wars.^[32]The religious practice predates the federal title. Yet the federal title controls the religious practice. 

C. The Doctrinal Mismatch 

The substantial burden test asks whether the government has placed meaningful pressure on the adherent’s ability to practice. For portable religion, that question is usually answerable. Pressure exists when the government conditions a benefit, exacts a penalty, or compels participation. The doctrine’s vocabulary of coercion, exemption, and accommodation fits these claims because the doctrine was built around them. For place-based religion, the question is more elusive. Not because the burden is less real. The Apaches are not asking for an exemption from a generally applicable rule; they are asking the government not to destroy the place their religion requires. The mismatch is between the claim and the doctrine’s categories: those categories are built for portable practice, while the claim is place-based. 

Lyng exploits this mismatch by reframing the question as one of government property prerogative. The destruction of religious practice becomes, in the Lyng grammar, the disposition of “what is, after all, its land.”^[33] The Ninth Circuit’s en banc majority carried this move into RFRA, holding that the statute “subsumes, rather than overrides,” Lyng’s outer limits.^[34] The asymmetry is arbitrary. Religions that resemble Protestant Christianity in structure — voluntaristic, congregational, portable, defined by belief and assemblage — receive robust protection. Religions structured otherwise receive Lyng. The substantial-burden test was developed against a portable paradigm and cannot account for place-based religion.^[35]

D. Counterargument and Response 

The strongest version of the government’s position is structural. Judge Collins pressed it: a rule requiring accommodation of every land-based religious claim against federal property use would create what Lyngfeared, a “religious servitude” on federal land.^[36] Indigenous sacred-site claims could, in principle, halt nearly any federal land use decision. The doctrine, on this view, must contain Indigenous claims at the threshold or it will not contain them at all. 

The response is that this is what strict scrutiny is for. RFRA’s framework requires the government to demonstrate a compelling interest and the least restrictive means. Even assuming critical minerals policy and the energy transition satisfy the compelling interest prong, RFRA still asks whether the government can pursue those interests without destroying this specific sacred site. 

This rule is administrable. A RFRA court need not treat every religious objection to federal land use as a substantial burden. But where government action will physically destroy, permanently close, or render religious exercise impossible at a sincerely non-substitutable site, the burden threshold is met. 

The doctrine has the tools to draw careful lines. Federal land use decisions are already constrained by the National Environmental Policy Act, the National Historic Preservation Act, the Native American Graves Protection and Repatriation Act, the Endangered Species Act, the Clean Water Act, and the Clean Air Act.^[37] If Congress could halt a nearly completed federal dam to protect the snail darter, it can require serious scrutiny before the government destroys an ancient faith.^[38]

IV. The Statute Already Supplies the Answer 

RFRA does not define “substantially burden.” Standard interpretive practice gives the phrase its ordinary meaning at the time of enactment. The contemporary dictionaries are unanimous. “Burden” meant “something oppressive” (Black’s Law Dictionary, 6th ed. 1990) or “something that weighs down [or] oppresses” (Webster’s Third New International Dictionary, 1986). “Substantial” meant “of ample or considerable amount, quantity, or dimensions” (Oxford English Dictionary, 2d ed. 1989).^[39] The destruction of a place of worship, in any ordinary sense, oppresses worship there to a considerable degree. RLUIPA’s 2000 amendment to RFRA’s definition of religious exercise, which expressly incorporates the use of real property, reinforces the conclusion.^[40]

The Court has read “substantial burden” broadly when it has wanted to. Hobby Lobby found a substantial burden where the government imposed a regulatory choice between violating religious beliefs and paying penalties.^[41]Meaningful pressure was enough.^[42] If meaningful pressure is the test, physical destruction of a place of worship qualifies a fortiori. The Court found a way to recognize the religious objections of closely held for-profit corporations in Hobby Lobby and of prisoners in Holt v. Hobbs.^[43] Apache Stronghold’s religious exercise at Oak Flat has been ongoing for centuries. The Court’s willingness to recognize one kind of religious burden but not the other is hard to defend on neutral principles. 

The fix does not require Congress to pass a new law. It requires the Court to read the law Congress already passed. The Supreme Court can take the next vehicle and overrule the Ninth Circuit. Congress can amend RFRA to clarify that substantial burden does not turn on land ownership. Or the Court can overrule Lyng directly. Justice Gorsuch and Justice Thomas have signaled willingness. Finding the additional votes is the harder problem. 

Conclusion 

The crater projected for Oak Flat will be nearly two miles across. Apache Stronghold’s lawsuit asks a federal district court to unwind a completed congressional land exchange. The Court has built a religious liberty regime of remarkable scope on an implicit model of religious exercise that excludes a large and identifiable class of religious claimants. The exclusion is not announced. It happens because the substantial burden test screens out place-based religious practice before the real legal questions can be asked. The Court that decided Hobby Lobby, Holt v. Hobbs, Kennedy, and Carson has the legal materials to fix this. It has, so far, chosen not to. The First Amendment’s protection of religious exercise is not, in its text, limited to religions that look like Protestant Christianity. A doctrine that effectively imposes such a limit deserves at least the candor of saying so. 

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^[1] Resolution Copper is a joint venture of Rio Tinto and BHP. See U.S. Forest Serv., U.S. Dep’t of Agric., Final Environmental Impact Statement: Resolution Copper Project and Land Exchange (June 2025); Apache Stronghold v. United States, 145 S. Ct. 1480, 1480 (2025) (Gorsuch, J., dissenting from denial of certiorari) (quoting the FEIS projection that the crater would be “between 800 and 1,115 feet deep and roughly 1.8 miles across”).

^[2] Apache Stronghold v. United States, 145 S. Ct. 1480, 1481 (2025) (Gorsuch, J., dissenting from denial of certiorari) (quoting App. to Pet. for Cert. 871a).

^[3] Apache Stronghold v. United States, 101 F.4th 1036 (9th Cir. 2024) (en banc).

^[4] Apache Stronghold v. United States, 145 S. Ct. 1480, 1481 (2025) (Gorsuch, J., dissenting from denial of certiorari) (“Respectfully, that is a grave mistake.”).

^[5] Kennedy v. Bremerton School District, 597 U.S. 507 (2022).

^[6]See Carson v. Makin, 596 U.S. 767 (2022); Espinoza v. Montana Department of Revenue, 591 U.S. 464 (2020).

^[7] Kennedy v. Bremerton School District, 597 U.S. 507 (2022).

^[8] Laura B. Comay et al., Cong. Rsch. Serv., IF10585, The Federal Land Management Agencies 1 (updated Oct. 7, 2024) (stating that approximately 640 million acres of surface land are managed by the federal government, accounting for nearly 28% of land in the 50 states and District of Columbia, excluding inland waters, and that most of these lands are in the West); see also Mark K. DeSantis et al., Cong. Rsch. Serv., R48452, Indigenous Sacred Sites: Overview and Issues for Congress 1 (Mar. 14, 2025) (explaining that, because of forced removal, treaty negotiations, and other historical events, the federal government now owns and manages land where Indigenous sacred sites exist).

^[9] Stephanie H. Barclay & Michalyn Steele, Rethinking Protections for Indigenous Sacred Sites, 134 HARV. L. REV. 1294, 1304–05 (2021); see also Michael D. McNally, The Sacred and the Profaned: Protection of Native American Sacred Places That Have Been Desecrated, 111 CAL. L. REV. 395 (2023) (arguing that courts treat sacred sites already disturbed by development as less worthy of legal protection, what McNally calls the “profanation principle”); David C. Scott, Making Space for Sacred Lands: From the Harsh Glare of Lyng to Apache Stronghold, 21 STAN. J. CIV. RTS. & CIV. LIBERTIES 194 (2025) (arguing that courts wrongly treat Native sacred site claims as demands for government action rather than as demands to be free from government interference with religious practice).

^[10] Sherbert v. Verner, 374 U.S. 398, 406 (1963).

^[11] Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872, 878–82 (1990). ¹²42 U.S.C. § 2000bb–1(a)–(b). The Act’s findings explicitly invoke the Sherbert / Yoder framework. See 42 U.S.C. § 2000bb(a)(5), (b)(1).

^[12] U.S.C. § 2000bb–3(a). ¹⁴42 U.S.C. § 2000bb–3(c).

^[13] City of Boerne v. Flores, 521 U.S. 507, 532–36 (1997). RFRA remains fully applicable to federal action. See Gonzales v. O Centro Espírita Beneficente União do Vegetal, 546 U.S. 418 (2006).

^[14] Religious Land Use and Institutionalized Persons Act of 2000, Pub. L. No. 106–274, § 7(a)(3), 114 Stat. 803, 806 (codified at 42 U.S.C. § 2000bb–2(4)) (amending RFRA’s definition of “religious exercise” to incorporate the definition in 42 U.S.C. § 2000cc–5(7)(A)–(B), which includes “the use, building, or conversion of real property for the purpose of religious exercise”).

^[15] Lyng v. Northwest Indian Cemetery Protective Ass’n, 485 U.S. 439, 451 (1988).

^[16] Id. at 451–52.

^[17] Id. at 451.

^[18] Id. at 453 (emphasis in original).

^[19] Carl Levin and Howard P. “Buck” McKeon 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). Apache Stronghold also sued under the Free Exercise Clause and the 1852 Treaty of Santa Fe. Those claims fall outside the scope of this essay, which focuses on the RFRA argument.

^[20] Apache Stronghold, 101 F.4th at 1049–52.

^[21] Id. at 1052–55 (Collins, J., for the majority on this point).

^[22] Id. at 1063 (R. Nelson, J., concurring).

^[23] Id. at 1131 (Murguia, C.J., dissenting).

^[24] Id. at 1135–36 (Murguia, C.J., dissenting) (citing Black’s Law Dictionary 197 (6th ed. 1990); Webster’s Third New International Dictionary 298 (1986); 2 Oxford English Dictionary 656 (2d ed. 1989); 17 Oxford English Dictionary 67 (2d ed. 1989)).

^[25] Apache Stronghold v. United States, 145 S. Ct. 1480, 1486 (2025) (Gorsuch, J., dissenting from denial of certiorari).

^[26] Id. at 1485 (citing Haight v. Thompson, 763 F.3d 554, 565 (6th Cir. 2014); Yellowbear v. Lampert, 741 F.3d 48, 56 (10th Cir. 2014); Bethel World Outreach Ministries v. Montgomery Cty. Council, 706 F.3d 548, 555–56 (4th Cir. 2013); West v. Radtke, 48 F.4th 836, 845 n.3 (7th Cir. 2022); In re Young, 82 F.3d 1407, 1418 (8th Cir. 1996); Thai Meditation Ass’n of Ala., Inc. v. Mobile, 980 F.3d 821, 830–31 (11th Cir. 2020)).

^[27] Id. at 1487 (citing TVA v. Hill, 437 U.S. 153 (1978)).

^[28] Id. at 1487–88.

^[29] See Apache Stronghold v. United States, No. 24–291 (U.S. Oct. 6, 2025) (order denying petition for rehearing). The land conveyance occurred the same day the Ninth Circuit dissolved the administrative stay. See Press Release, U.S. Dep’t of Agric., USDA Further Advances Trump Administration Push to Unleash Critical American Mineral and Energy Production (Mar. 16, 2026); Amended Complaint Prayer for Relief ¶¶ a, c–e, Apache Stronghold v. United States, No. 2:21-cv-00050-PHX-SPL, ECF No. 184 (D. Ariz. Apr. 22, 2026); Plaintiffs-Appellants’ Petition for Rehearing En Banc, Ariz. Mining Reform Coal. v. Rollins, No. 25-5185, DktEntry 178.1 (9th Cir. May 1, 2026) (filed by Arizona Mining Reform Coalition, Inter Tribal Association of Arizona, Center for Biological Diversity, Earthworks, Access Fund, and Sierra Club, not by Apache Stronghold).

^[30] See, e.g., Sherbert, 374 U.S. at 403–04 (Saturday work refusal); Wisconsin v. Yoder, 406 U.S. 205 (1972) (compulsory education); Hobby Lobby, 573 U.S. at 720–26 (contraceptive coverage mandate); Holt v. Hobbs, 574 U.S. 352, 361 (2015) (prison grooming policy); Kennedy, 597 U.S. at 525 (post-game prayer).

^[31] Apache Stronghold v. United States, 145 S. Ct. 1480, 1481 (2025) (Gorsuch, J., dissenting from denial of certiorari) (describing the Sunrise Ceremony, the Ga’an, and the central role of Oak Flat in Apache religious practice).

^[32] Id. at 1481–83 (recounting the Treaty of Guadalupe Hidalgo, the unfulfilled Treaty of Santa Fe of 1852, and the subsequent Apache Wars).

^[33] Lyng, 485 U.S. at 453.

^[34] Apache Stronghold, 101 F.4th at 1063.

^[35] Barclay & Steele, supra note 9, at 1304–05 (describing Indigenous worshippers as “at the mercy of government permission” to access sacred sites on federal land).

^[36] Apache Stronghold, 101 F.4th at 1052 (Collins, J., for the majority).

^[37] See National Environmental Policy Act, 42 U.S.C. § 4321 et seq.; National Historic Preservation Act, 54 U.S.C. 

§§ 300101–307108; Native American Graves Protection and Repatriation Act, 25 U.S.C. §§ 3001–3013; 

Endangered Species Act, 16 U.S.C. §§ 1531–1544; Federal Water Pollution Control Act, 33 U.S.C. §§ 1251–1388; Clean Air Act, 42 U.S.C. §§ 7401–7671q.

^[38] TVA v. Hill, 437 U.S. 153 (1978). Justice Gorsuch deployed the same analogy in his cert dissent. See Apache Stronghold, 145 S. Ct. at 1487 (“If Congress went to such lengths to accommodate the snail darter, why should we suppose it offered less protection to people practicing an ancient faith?”).

^[39] See Apache Stronghold, 101 F.4th at 1135–36 (Murguia, C.J., dissenting) (citing contemporary dictionaries).

^[40] See Religious Land Use and Institutionalized Persons Act of 2000, Pub. L. No. 106–274, § 7(a)(3), 114 Stat. 803, 

806 (codified at 42 U.S.C. § 2000bb–2(4)) (amending RFRA’s definition of “religious exercise”); 42 U.S.C. § 2000cc–5(7)(A)–(B) (defining “religious exercise” to include “the use, building, or conversion of real property for the purpose of religious exercise”).

^[41] Hobby Lobby, 573 U.S. at 720–26.

^[42] Id. at 723 (“If these consequences do not amount to a substantial burden, it is hard to see what would.”); Holt v. Hobbs, 574 U.S. 352, 361 (2015) (rejecting narrow construction of “substantial burden”).

^[43] Apache Stronghold, 145 S. Ct. at 1486–87 (Gorsuch, J., dissenting from denial of certiorari) (the Court has “firmly rejected” efforts to import pre-Smith First Amendment jurisprudence into RFRA’s substantial burden analysis).