The U.S. Supreme Court today denied the Western Apache’s last appeal to protect their sacred lands from being transformed into a copper mine. The way is now clear to transfer this parcel of the Tonto National Forest, Oak Flat, from the federal government to a multinational mining company, Resolution Copper. Justice Neil Gorsuch was joined in an impassioned dissent by Justice Clarence Thomas. It is masterfully reasoned, leaving one to wonder not just about the blatant injustice of this land deal for the Apache, but the implications for the religious freedom of other Americans in the future. The Background Gorsuch goes into great detail explaining the history of the Apaches’ connection to Oak Flat and its central place in their religion. He quotes the cert petition explaining the importance of Oak Flat: “Western Apaches believe that the site is the dwelling place of the Ga’an – ‘saints’ or ‘holy spirits’ that lie at ‘the very foundation of [their] religion … ‘They come from the ground,’ and they serve as ‘messengers between Usen, the Creator, and [Apaches] in the physical world.’ “Faithful to these beliefs, tribal members have worshipped at Oak Flat for centuries, conducting there a number of religious ceremonies that cannot take place anywhere else.” Justice Gorsuch goes into detail about Apache ceremonies, including three-day coming-of-age-rituals for Apache girls, in which they gather plants while covered in white clay. This mirrors the Apache creation story in which a white-painted woman came out of the earth. Gorsuch quotes the plaintiff, the Apache Stronghold, which wrote that the white clay is meant to “imprint” the spirit of Oak Flat in the young women. Now, Justice Gorsuch writes, tribal members believe the destruction of Oak Flat “will close off the portal to the Creator forever and will completely devastate the Western Apaches’ spiritual lifeblood.” The Law Gorsuch details obligations in an 1852 treaty between the Apaches and the government to recognize the sacred status of Oak Flat. Those obligations were overturned when legislators attached an 11th hour rider to the 2014 National Defense Authorization Act, hiding it in a bill that was 698 pages long. Justice Gorsuch proceeds to dissect and expose the illogical Ninth Circuit Court of Appeals decision that will now allow the multinational mining company to destroy Oak Flat. Today’s motion puts at risk the Religious Freedom Restoration Act (RFRA), which was passed by Congress in 1993 to protect the free exercise of religion from “substantial burdens” by the federal government. The Ninth Circuit got around RFRA by turning to a precedent, Lyng v. Northwest Indian Cemetery Protective Assn. (1988) that involved a First Amendment challenge to a plan to construct a road on federal land near sacred tribal sites. Gorsuch writes: “On the Ninth Circuit’s telling, Lyng set forth a special test for analyzing whether the government’s ‘disposition’ of its real property runs afoul of the Free Exercise Clause … That test, the Ninth Circuit said, permits the government to do as it pleases with its property as long as it has no ‘tendency to coerce individuals into acting contrary to their religious beliefs’ and does not ‘discriminate against or among religious adherents.’” The Result Justice Gorsuch notes that courts have had no qualms upholding other laws restricting the government’s power to dispose of its real property. The Endangered Species Act, for example, required the halting of a federal dam to protect the “snail darter.” But no such protections can be afforded to the religion of the Apaches. The way is now clear for Resolution Copper to blast tunnels that will result in a crater 1,000 feet deep and nearly two miles wide. While courts have acknowledged that this will permanently destroy the Apaches’ historical place of worship, preventing them from ever worshipping there, it does not – according the Ninth Circuit opinion now upheld –amount to a “substantial burden” of the First Amendment religious freedom rights of the Apache. Justice Gorsuch writes: “Just imagine if the government sought to demolish a historic cathedral on so questionable a claim of legal reasoning. I have no doubt we would find the case worth our time. Faced with the government’s plan to destroy an ancient site of tribal worship, we owe the Apaches no less. They may live far from Washington, D.C., and their history and religious practices may be unfamiliar to many. But that should make no difference.” He ended his dissent with a quote from the Court’s 2018 opinion in Masterpiece Cakeshop: “Popular religious views are easy enough to defend. It is in protecting unpopular religious beliefs that we prove this country’s commitment to … religious freedom.” In his conclusion, Justice Gorsuch writes: “While this Court enjoys the power to choose which cases it will hear, its decision to shuffle this case off our docket without a full airing is a grievous mistake – one with consequences that threaten to reverberate for generations." A federal court has blocked the government from transferring Oak Flat to a foreign-owned mining company, preserving the sacred Apache site while the U.S. Supreme Court considers whether to hear the case. The ruling is a powerful rebuke of the federal rush to transfer the land, which Western Apaches consider a portal to the Creator and the center of their religious life. Judge Steven P. Logan concluded that “there is no close question in this matter,” finding it “abundantly clear that the balance of equities ‘tips sharply’ in Plaintiff’s favor.” He emphasized that the Apaches face “a likelihood of irreparable harm should the transfer proceed” and that the case presents “serious questions on the merits that warrant the Supreme Court’s careful scrutiny.” Oak Flat, which sits within Arizona’s Tonto National Forest, has been central to Apache religion for centuries. For 70 years, it has been protected from mining, until a 2014 defense bill provision set the stage for its transfer to Resolution Copper, a subsidiary of a multinational firm partially owned by a Chinese corporation. If the mine goes forward, the Apache will forever lose their ability to perform ceremonies tied to the land. Resolution Copper plans to turn Oak Flat into a two-mile-wide, 1,100-foot-deep crater. That devastation would be irreversible, a loss equal in scale to dynamiting the Vatican or using the stones of the Wailing Wall as a quarry. Dr. Wendsler Nosie Sr. of Apache Stronghold responded bluntly: “The federal government and Resolution Copper have put Oak Flat on death row – they are racing to destroy our spiritual lifeblood and erase our religious traditions forever.” The injunction prohibits the federal government from publishing its environmental report or finalizing the land transfer until the Supreme Court either denies review or issues a final ruling. That decision halts Resolution Copper’s plans to turn Oak Flat into a massive copper mine. The court rejected the argument that Apache rituals could simply be relocated, stating it was “disinclined to minimize the importance of Oak Flat to the Apache’s belief system.” As previously noted by the court in 2021, the mine would “close off a portal to the Creator forever and will completely devastate the Western Apaches’ spiritual lifeblood.” Judge Logan also dismissed the mining company’s claims about financial harm, noting they had invested in the land years before Congress authorized the transfer and did so “voluntarily.” In contrast, the Apaches risk losing access not just to land, but to their religious future: “They cannot choose to practice their religion at all once their sacred religious site is completely ‘obliterated,’” as one dissenting judge previously wrote. Oak Flat is more than a legal fight. It’s a test of whether the U.S. government will honor its promise of religious liberty when it matters most – not just in speech, but in action. The Apache’s sacred ground deserves the same protection any church, synagogue, or mosque would be afforded. If the Apache lose, Americans of all faiths will lose as well. Becket Goes to Court Wednesday to Block Oak Flat Transfer – Let Supreme Court Consider this Case!5/7/2025
Apache Stronghold v. United States The Oak Flat sacred site in the Tonto National Forest in Arizona has undergone a Perils of Pauline ordeal in federal courts, rescued from ruin only to be tied to the tracks again before an oncoming train. This land for centuries has been the centerpiece of Apache religion and the Western Apache people’s relationship with the Creator. It is now slated to be transferred to a partially Chinese-owned mining company that plans to dig a copper mine there, mutilating a site as holy to the Apache as the Vatican is to Catholics or the Wailing Wall is to Jews. If the project proceeds, all that will be left of the Apache’s sacred land will be a crater as long as the Washington Mall and as deep as two Washington Monuments. The Apache’s appeal has been repeatedly relisted for possible certiorari, or an oral argument, before the Supreme Court. Not content to wait, the U.S. government has announced its intention to jump ahead of the Court and transfer Oak Flat to the mining company, circumventing the judicial process. At 9:30 a.m. on Wednesday, Luke Goodrich of the Becket Fund for Religious Liberty will present an emergency motion before Judge Steven P. Logan in federal district court in Phoenix asking him to block the transfer while the Supreme Court hears the case. In a dissent from the Ninth Circuit opinion now being appealed, Judge Marsha B. Berzon declared that the Religious Freedom Restoration Act (RFRA) should be sufficient to protect Oak Flat. She wrote that “it would be an exceedingly odd statute that recognized and provided remedies for government-created substantial burdens on religious exercise … when it directly prevents access to religious resources.” She called the current status of the case “an illogical interpretation of RFRA” and “incoherent.” This case is too important to be short-circuited or ignored. Respect for RFRA is vital to people of all faiths, which is one reason why Christian, Jewish, and other groups have joined in petitioning the courts to save Oak Flat. On Sunday, Apache tribal members began an 80-mile run from Oak Flat that will end in Phoenix just before the hearing. We may not be able to join them on the run, but surely we can join them in prayer. Peaceful protesters from Arizona’s Apache Stronghold held a day of prayer outside the U.S. Supreme Court last week. In their quest to preserve the centerpiece of their faith from utter destruction, the Apache certainly deserve our prayers. But they also deserve our amicus briefs, for the Almighty helps those who help themselves.
The Apache and other Native peoples led the way by asking the Supreme Court to protect their sacred land and – by extension – the sacred lands and landmarks of Jews, Christians, Muslims, and all Americans of faith. That is why Sikhs, Muslims, the Mennonite Church, other tribes, and the Christian Legal Society have filed briefs supporting Apache Stronghold. For centuries, the Apache have held sacred a site in the Tonto National Forest in Arizona they call Chí’chil Biłdagoteel, known colloquially as Oak Flat. Though under management by the U.S. Forest Service, Oak Flat has for centuries been recognized as the central location for the Apache’s religious worship – a place where they honor their ancestors, hold ceremonies, and mediate their relationship with the Creator. It’s their Mount Sinai, Temple Mount, and Vatican. After the discovery of copper beneath and around the site, Congress in an 11th hour deal transferred Oak Flat to Resolution Copper, a foreign mining company. The Apache and their allies (including us) are now engaged in a legal struggle to prevent Resolution Copper from transforming the site into a crater as deep as the Washington Monument. The Apache have demonstrated that the federal government’s conveyance of their sacred land constitutes a violation of the Religious Freedom Restoration Act. Yet the Ninth Circuit Court of Appeals – usually not known for indifference to minority rights – sided with the mining company and the government in a 6-5 decision. The court’s reasoning is self-contradicting. The Ninth agreed that the land’s disposition to Revolution Copper will categorically prevent the Apache from participating in any worship at Oak Flat because their religious site will be obliterated. Yet the court found that the land transfer would not constitute a “substantial burden” on religion because that standard does not apply in instances of “the Government’s management of its own land and internal affairs.” These rulings ignore both the recognition of Oak Flat as the sacred land of the Apache in treaties going back to the 19th century and is an absurdly narrow reading of constitutes a substantial burden on the free exercise of religion. The Apache’s petition identifies the circuit split that only the Supreme Court can resolve: “This remarkable result openly conflicts with RFRA’s text, which expressly applies to all Federal law and ‘the use … of real property for the purpose of religious exercise’ – with no carveout for government property.” Further, the appellate court ruling “conflicts with decisions of the Fourth, Sixth, Seventh, Eighth, Tenth and Eleventh Circuits,” which “have long recognized that the government substantially burdens religious exercise not only by penalizing it but also by preventing it from occurring.” Without intervention from the high court, the government will not only destroy the Apache’s religious heritage but provide a skeleton key for “eviscerating RFRA in any context deemed part of the government’s ‘internal affairs’ – a concept that could cover almost anything the government does.” If you are a person of faith or respect the faiths of others, you have a stake in Oak Flat. Dissenting Judge: “Will prevent worshipers from ever again exercising their religion” |
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