The Supreme Court on Tuesday announced it won’t hear a closely tracked religious freedom clash out of Arizona and revealed that at least two of the court’s nine justices aren’t pleased with the decision.
Justice Neil Gorsuch dissented to the denial of certiorari in the case about mining on sacred land, calling it “a grave mistake.” His dissent was joined by Justice Clarence Thomas.
Justice Samuel Alito may also have objected to the denial, but he took no part in its consideration.
The Supreme Court’s rejection of the case means that a lower court ruling against a group of Native Americans fighting to block a mining project will remain in place.
In his dissent, Gorsuch criticized his colleagues for underrating the significance of the religious freedom questions that were raised.
“Just imagine if the government sought to demolish a historic cathedral on so questionable a chain of legal reasoning. I have no doubt that we would find that case worth our time. Faced with the government’s plan to destroy an ancient site of tribal worship, we owe the Apaches no less,” he wrote.
The Oak Flat conflict
Apache Stronghold v. United States centers on a proposed mining project in the Oak Flat area of Arizona, which is located about 70 miles east of Phoenix.
The Western Apaches use Oak Flat for a variety of sacred ceremonies, including a coming-of-age ritual for young women, as Gorsuch pointed out in his dissent.
In recognition of these ceremonies, the federal government protected portions of Oak Flat from mining for more than a century after taking control of it during 19th century wars.
But then in 2014, Congress cleared the way for the land to be transferred to a private mining company by passing a version of the National Defense Authorization Act that had a last-minute rider about Oak Flat added on.
In 2021, the federal government published an Environmental Impact Statement on Oak Flat, signaling that mining was soon to begin in the area. That’s when Apache Stronghold filed a federal religious freedom lawsuit to seek to block the land transfer and mining project. The group argued that destroying Oak Flat would violate the Religious Freedom Restoration Act.
The act, which is also known as RFRA, prohibits the federal government from substantially burdening a sincere expression of faith unless there is no better way to fulfill a compelling government goal.
Apache Stronghold argued that the mining project would destroy the Western Apaches’ “spiritual lifeblood,” Gorsuch wrote.
While Apache Stronghold’s lawsuit delayed the mining project, it didn’t succeed in securing long-term protections for Oak Flat. The group lost at the district and circuit court level, where judges said mining does not represent a substantial burden under the Religious Freedom Restoration Act.
In September, the group asked the Supreme Court to overturn those decisions and rule that religious freedom law protects against mining on sacred land.
“Oak Flat is our Mt. Sinai — the most sacred place where generations of Apache have come to connect with our Creator, our faith, and our land,” explained Wendsler Nosie Sr. of Apache Stronghold in a press release at the time.
Several religious organizations, as well as Utah Sen. Mike Lee, filed Supreme Court briefs in support of Apache Stronghold in recent months.
Gorsuch dissents
In his dissent, Gorsuch criticized the Supreme Court for allowing the 9th U.S. Circuit Court of Appeals’ ruling against Apache Stronghold to stand.
He said that, at the very least, it hinged upon a controversial interpretation of how to apply the Religious Freedom Restoration Act in disputes involving government property and, at worst, it treated Native Americans much worse than Americans who are part of other, better-known faiths.
“Before allowing the government to destroy the Apaches’ sacred site, this Court should at least have troubled itself to hear their case,” Gorsuch wrote.
As is typical, the justices who voted against hearing Apache Stronghold v. United States did not explain their decision to the public.
As a result of Tuesday’s announcement, the federal government is free to move forward with its planned land transfer.
In April, the Trump administration announced that it may release the final Environmental Impact Statement on Oak Flat as soon as next month.