This story was originally published by Grist and is reproduced here as part of the Climate Desk collaboration.

For a decade, wind farm companies had been eyeing Molok Luyuk—a mountain ridge of religious importance to tribes in Northern California, whose people have worked for years to protect it. It’s also widely biodiverse, with elk, mountain lions, and black bears, as well as 40 rare plants such as the pink adobe lily. 

Mia Durham is the secretary for the Yocha Dehe Wintun Nation, a tribe that has been in a relationship with Molok Luyuk for thousands of years. In response to petitions filed by wind energy companies that wanted to develop the area, the tribe and its allies asked President Joe Biden to protect it in 2019. 

“That’s what heightened it for us and put us on track of moving forward as quickly as possible,” Durham said. “We wanted to protect sacred sites that are there. They were going to be severely impacted.”

One way to protect landscapes and waterways such as Molok Luyuk is to have them declared national monuments, a term used to designate that a section of land is federally protected from development and harm. While Congress designates national parks, only a president can designate a national monument.

That’s what happened earlier this month when the Biden administration expanded a national monument to include Molok Luyuk, joining the mountain ridge to the nearby Berryessa Snow Mountain National Monument, nearly 350,000 acres of coastal range in Northern California. Tribes are now working on a co-stewardship agreement for the Molok Luyuk area, but not for the whole national monument. 

But the tribes that have a relationship with Molok Luyuk aren’t done with their advocacy. They’ve protected the area from energy development, but they still have little say in how the land is managed. While the federal government has pushed co-stewardship agreements over the years, national monuments are still considered property of the federal government.

Now that Berryessa includes Molok Luyuk, the US Forest Service and the Bureau of Land Management (BLM) are in talks to enter into a co-stewardship agreement with the Yocha Dehe Wintun Nation, Kletsel DeHe Wintun Nation, and the Cachil DeHe Band of Wintun Indians of the Colusa Rancheria. The details are still being hashed out, but the Yocha Dehe Wintun Nation is excited to bring traditional knowledge to the management of Molok Luyuk. 

Melissa Hovey is the manager at Berryessa Snow Mountain National Monument, and she said that co-management happens between BLM and the Forest Service. These federal agencies can enter into co-stewardship agreements with tribes, but they can’t delegate management without congressional approval.

“Co-management means decision-making authority,” she said. “Co-stewardship means one entity still has the decision-making authority.”

You would think that “co-stewardship” and “co-management” would be simple terms to define, but there are numerous federal documents that have used the two terms interchangeably over the years. Co-stewardship is a broad term that describes agreements made between federal agencies and tribal nations to hash out shared interests in the management of federal lands. Co-management refers to a stronger tribal presence and decision-making power. 

In 2015, the Berryessa Snow Mountain National Monument was created under President Barack Obama using the Antiquities Act—a 1906 law that allows the president to protect places of historic and scientific interest on federal land and make them national monuments. Berryessa was protected because of the area’s biodiversity: 80 different species of butterflies, black bears, California newts, and predatory birds. Molok Luyuk translates from Patwin to English as “Condor Ridge,” in reference to the endangered California condor that used to fly along the ridge. 

Congressional action is not the only way to gain co-management powers. The Bears Ears Inter-Tribal Coalition in Utah has one of the most successful stories of tribes gaining co-management status—they were given “true co-management” by an Intergovernmental Cooperative Agreement.

In 2022, the federal government agreed to co-manage Bears Ears National Monument with the Hopi Tribe, Navajo Nation, Ute Mountain Ute Tribe, Ute Indian Tribe of the Uintah and Ouray Reservation, and the Pueblo of Zuni. For the first time ever, tribal nations worked with federal agencies to draft a resource-management plan that would dictate how a national monument should be run. 

Patrick Gonzales-Rogers is a professor at the Yale School of Environment where he specializes in tribal sovereignty and natural resources. He is also the former director of the Bears Ears Inter-Tribal Coalition. 

Co-managment allows tribes to exercise sovereignty, according to Gonzales-Rogers. “It allows them to be more assertive,” he added. And when that happens, tribes can bring in religious and spiritual practices to utilize traditional knowledge, wisdom that had been minimized by federal agencies in the past. 

Gonzales-Rogers is hopeful that, exponentially, these choices will compound, “and may even have a nexus to say something like landback,” a reference to a movement that is not only rooted in a mass return of land to Indigenous nations and peoples, but also tribes having sovereignty to steward the land that was taken from them. 

Gonzales-Rogers thinks the two terms have not been very well-defined over the years, but said co-stewardship agreements might be a good way to start building to co-management.

And the more tribes have autonomy over their ancestral lands, the better it is for conservation goals. According to a recent study, equal partnerships between tribes and governments are the best way to protect public lands—the more tribal autonomy, the better the land is taken care of. 

Mia Durham with the Yocha Dehe Wintun Nation is excited to get started in drawing up its own co-stewardship agreement on Molok Luyuk. “I hope it doesn’t take long, because we’ve been managing these lands already, so it shouldn’t be hard to put it on a piece of paper,” she said. 

Earlier this month, the Ninth Circuit Court of Appeals declined to stop the construction of a copper mine in Arizona on land sacred to the San Carlos Apache Tribe as well as other Indigenous nations. Chí’chil Biłdagoteel, also known as Oak Flat, sits atop the third largest copper deposit on the planet and is essential to green energy projects. The operation, which will be run by Resolution Copper, a subsidiary of mining companies Rio Tinto and BHP, will leave a crater nearly 1,000 feet deep and 2 miles wide.

“Oak Flat is like Mount Sinai to us—our most sacred site where we connect with our Creator, our faith, our families and our land,” said Wendsler Noise of Apache Stronghold, a nonprofit fighting to protect the area. “We vow to appeal to the Supreme Court.” 

Over the years, Oak Flat has developed a storied history. In 2014, Oak Flat was a part of a military spending bill that would allow the government to “swap” the area with other land in Arizona. In 2016, it was added to the National Register of Historic Places in an attempt to protect it, and in 2021 the Apache Stronghold sued the government, arguing that the land was reserved for the Western Apaches in an 1852 treaty. Then, in 2023, Apache Stronghold made the case that the land transfer would keep them from exercising their religion. The court disagreed. 

The issue before the court illustrates a battle between religion, Indigenous rights, and potential solutions to the climate crisis. For tribal nations like the San Carlos Apache who practice what are known as “land-based religions”—ceremonial practices that are inextricably tied to areas Indigenous peoples have relationships with—preserving those lands with religious significance is paramount to the survival, and transmission, of both culture and values to the next generation. 

But for developers, the proposed mine would support a few thousand jobs for the surrounding community, inject $61 billion into the local economy, and provide a critical supply of copper for everything from electric vehicles to energy storage systems. By 2031, the world will need almost 37 million metric tons of copper to continue the process of green-energy electrification. Resolution Copper said that Oak Flat could provide a quarter of US copper production. 

At the heart of Apache Stronghold’s legal case is something called “substantial burden”—there must be proof that the government has interfered with an individual’s right to practice their religious beliefs. Substantial burden protects US citizens from government interference, unless the government has a really good reason. That means Apache Stronghold’s claim needs to be justified with a high level of scrutiny. 

If the case goes to the Supreme Court, and Apache Stronghold wins, the federal government would need to show a compelling reason to destroy Oak Flat. 

“If the Supreme Court finds that land transfer of Oak Flat is a substantial burden on Apache religious practice, then the court sends the case back down to the lower court,” said Beth Margaret Wright, who is from the Pueblo of Laguna and is an attorney with the Native American Rights Fund. “Then that would be on the government to prove that the land transfer is narrowly tailored toward a compelling government interest.”

Wright said that’s a pretty high bar for the government to meet, and it’s complicated by the court’s history with land-based religions.

According to the court’s recent decision, Oak Flat is similar to an older case out of California: Lyng v. The Northwest Indian Cemetery Protective Association. In the 1980s, the United States Forest Service was sued by the Northwest Indian Cemetery Protective Association over the proposed construction of a road. The Yurok, Karuk, and Tolowa tribes argued the road would irreparably damage an area where tribal members conducted religious ceremonies. 

Ultimately, the US Supreme Court ruled that the federal government could do what it wanted with its land and said that the government couldn’t be held responsible for the religious needs of its citizens—a kind of “slippery slope” that recognized that a favorable ruling for the tribes would provide a veto button for other Indigenous nations on public projects in the future. In its ruling, the Supreme Court acknowledged that there were deeply held religious beliefs tied to the land, but the road was built anyway. 

Joe Davis, an attorney with Becket Law, the firm defending Apache Stronghold, said the narrow focus on Lyng is what is at issue with Oak Flat: He says it’s the wrong framing. Five years after the Lyng decision, the Religious Freedom Restoration Act was passed. Because RFRA was written to expand religious protections, the Apache Stronghold seeks the expanded protections to be applied to Oak Flat. “This is a case, at its heart, about the Religious Freedom Restoration Act, which uses different language and is broader than the First Amendment,” said Davis.

And that argument has some history with the courts. In 2012, Becket also defended Hobby Lobby at the Supreme Court and won using the Religious Freedom Restoration Act. In that case, the court decided that under RFRA, the family that owns Hobby Lobby could opt out of providing birth control to employees under federal insurance laws due to religious beliefs. Essentially, the court found that the federal government was imposing a substantial burden because the use of birth control violated the owners’ religious freedoms. 

“Hobby Lobby shows that RFRA is very powerful,” said Davis. “This case is an opportunity for the Supreme Court to make good on the promise of RFRA.” 

The Ninth Circuit decided that in Oak Flat, substantial burden wasn’t met, citing the Lyng case. But the Lyng case doesn’t define substantial burden, RFRA does, and Davis argues that the court made a leap applying substantial burden when the concept wasn’t used in the Lyng case. Basically, the court didn’t use the broad protections offered by RFRA and instead applied a ruling from a pre-RFRA world.

If the case gets picked up by the US Supreme Court, and Apache Stronghold wins, this would help clarify substantial burden. But with that clarity, there may come many more legal battles testing the limits of the First Amendment for Indigenous peoples. 

“It might help us in the sense that now a substantial burden is more encompassing of land-based religions,” said Beth Margaret Wright with the Native American Rights Fund. “But it doesn’t necessarily mean that our land-based religions and practices are forever protected.” 

A spokesperson with the US Forest Service, the agency named in the lawsuit, declined to comment citing ongoing litigation.