Protect The 1st Foundation
  • About
    • Leadership
  • Issues
  • Scorecards
  • News
  • Take Action
    • Educational Choice for Children Act
    • PRESS Act
    • Save Oak Flat Act
  • DONATE
  • About
    • Leadership
  • Issues
  • Scorecards
  • News
  • Take Action
    • Educational Choice for Children Act
    • PRESS Act
    • Save Oak Flat Act
  • DONATE
Picture

Justice Gorsuch’s Stinging Dissent in Apache Stronghold v. United States

5/27/2025

 
Picture
​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."

    STAY UP TO DATE

Subscribe to Newsletter
DONATE & HELP US PROTECT YOUR FIRST AMENDMENT RIGHTS

Comments are closed.

    Archives

    May 2025
    April 2025
    March 2025
    February 2025
    January 2025
    December 2024
    November 2024
    October 2024
    September 2024
    August 2024
    July 2024
    June 2024
    May 2024
    April 2024
    March 2024
    February 2024
    January 2024
    December 2023
    November 2023
    October 2023
    September 2023
    August 2023
    July 2023
    June 2023
    May 2023
    April 2023
    March 2023
    February 2023
    January 2023
    December 2022
    November 2022
    October 2022
    September 2022
    August 2022
    July 2022
    June 2022
    May 2022
    April 2022
    March 2022
    February 2022
    January 2022
    December 2021
    November 2021
    October 2021
    September 2021
    August 2021
    July 2021
    June 2021
    May 2021
    April 2021
    March 2021
    February 2021
    January 2021

    Categories

    All
    2022 Year In Review
    2023 Year In Review
    2024 Year In Review
    Amicus Briefs
    Analysis
    Book Banning
    Campus Speech
    Censorship
    Congress
    Court Hearings
    Donor Privacy
    Due Process
    First Amendment
    First Amendment Online
    Freedom Of Press
    Freedom Of Religion
    Freedom Of Speech
    Government Transparency
    In The Media
    Journalism
    Law Enforcement
    Legal
    Legislation
    Legislative Agenda
    Letters To Congress
    Motions
    News
    Online Speech
    Opinion
    Parental Rights
    PRESS Act
    PT1 Amicus Briefs
    Save Oak Flat
    School Choice
    SCOTUS
    Section 230
    Speaking Of The First Amendment
    Supreme Court

    RSS Feed

we  the  people.

LET  YOUR  VOICE  BE  HEARD:


ABOUT

Who We Are

​Leadership

ISSUES

1st Amendment

TAKE ACTION

Donate

​Contact Us
® Copyright 2024 Protect The 1st Foundation