SupCo declines Apache bid to protect sacred land from copper mine
Kelsey Reichmann
WASHINGTON (CN) — In a rare loss for religious rights at the Supreme Court, the justices on Tuesday refused to halt a massive copper mining project on a sacred site for the Apache in Arizona.
Justice Neil Gorsuch, a Donald Trump appointee, called the decision a grave mistake, penning a lengthy dissent joined by Justice Clarence Thomas. Gorsuch chastised his colleagues for “shuffling” the case off the docket, suggesting that the high court would have treated the case differently if a historic cathedral were at risk instead of a holy site for Native Americans.
“They may live far from Washington, D. C., and their history and religious practices may be unfamiliar to many,” Gorsuch wrote. “But that should make no difference. ‘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.’”
Chí’chil Biłdagoteel, or Oak Flat, is a 6.7-square-mile sacred site littered with old-growth oak groves, springs, burial locations and archaeological sites east of Superior, Arizona. For the Apaches, Oak Flat holds a direct connection to their creator, making it a foundational part of their religious beliefs.
Oak Flat is also the seat of a large copper deposit. Resolution Copper has been trying to mine the land for two decades. It has been unsuccessful until now.
The federal government protected Oak Flat until 2014, when senators slipped a land transfer into the Defense Authorization Act. In the final days of his first term, President Donald Trump accelerated the project to complete the transfer.
The nonprofit, Apache Stronghold, sued the government, claiming the transfer violated their religious rights. While the Apaches won some lower court support, it wasn’t enough to save Oak Flat.
Gorsuch said Apache Stronghold’s case checked every requirement the justices use to determine whether to review a petition.
“The decision below is highly doubtful as a matter of law, it takes a view of the law at odds with those expressed by other federal courts of appeals, and it is vitally important,” Gorsuch wrote. “Before allowing the government to destroy the Apaches’ sacred site, this Court should at least have troubled itself to hear their case.”
Hailing from the 10th Circuit, Gorsuch gained a reputation for his defense of tribal rights. Apache Stronghold’s case was no different. Gorsuch details the history of Oak Flat, providing photos of the Apaches’ religious ceremonies and illustrated maps of the land. And he seemingly mocked the lower court’s finding that the erasure of the Apaches’ holy site was not a substantial burden.
“To be sure, the government’s plan may promise the destruction of a sacred site and thus prevent religious exercises from occurring,” Gorsuch wrote. “But, the court reasoned, none of that is enough to amount to a substantial burden under RFRA when the 'disposition' of federal land is involved.”
Gorsuch said that the lower court’s decision is an outlier compared to others, disputing the court’s decision not to review the matter.
Dr. Wendsler Nosie, former chairman of the San Carlos Apache Tribe and founder of Apache Stronghold, said they wouldn’t give up on defending Oak Flat despite the loss.
“We will never stop fighting — nothing will deter us from protecting Oak Flat from destruction,” Noise said in a press statement. “While this decision is a heavy blow, our struggle is far from over. We urge Congress to take decisive action to stop this injustice while we press forward in the courts.”
Luke Goodrich, vice president and senior counsel at Becket, said the court’s decision was a departure from its strong record of defending religious freedom.
“It is hard to imagine a more brazen attack on faith than blasting the birthplace of Apache religion into a gaping crater,” Goodrich said in a statement.