By Ann E. Marimow — Supreme Court declines to stop transfer of Native American site for mining
The Supreme Court on Tuesday cleared the way for the federal government to transfer thousands of acres of national forestland containing a Native American sacred site to a copper-mining company.
The justices left in place a lower-court decision that allows the transfer of land in central Arizona known as Oak Flat. The land, which has great spiritual value to the Western Apache Indians, sits on the world’s third-largest deposit of copper ore.
Justice Neil M. Gorsuch, whose rulings have long supported Native American rights, called the court’s refusal to review the case a “grievous mistake – one with consequences that threaten to reverberate for generations.”
“Faced with the government’s plan to destroy an ancient site of tribal worship, we owe the Apaches no less” than a consideration of their legal arguments, wrote Gorsuch, who was joined by Justice Clarence Thomas. “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.”
As is the court’s typical practice, the majority did not explain its reasons for declining to hear the case. Justice Samuel A. Alito Jr. did not participate in the decision and also did not explain his recusal.
In 2014, Congress passed legislation directing the government to transfer about 2,400 acres to Resolution Copper to build an underground mine in exchange for company-owned property. The copper mine will create a two-mile-wide crater, according to court filings, eliminating access to the sacred site.
The land swap had the backing of the administrations of both Presidents Joe Biden and Donald Trump. The government has said it plans to transfer the property soon after a final environmental impact statement is released June 16.
In response to the court’s action Tuesday, Resolution Copper general manager Victoria Peacey said the mine could become one of the largest of its kind in the United States and is “vital to securing America’s energy future, infrastructure needs, and national defense with a domestic supply of copper and other critical minerals.”
Peacey’s statement said negotiations over more than a decade led to changes to the plans to “reduce potential impacts on Tribal, social, and cultural interests, and this ongoing dialogue will continue to shape the project.”
Apache Stronghold, an organization representing members of the San Carlos Apache Tribe, sued the government in 2021 to stop the land exchange, claiming it violated the Religious Freedom Restoration Act. That law prevents the federal government from substantially burdening a person’s religious practice unless it furthers a compelling government interest.
The San Carlos Apache Tribe is a federally recognized Indian tribe on the San Carlos reservation, roughly 100 miles east of Phoenix.
Wendsler Nosie Sr. of Apache Stronghold called the court’s order a “heavy blow” and said in a statement that the group’s efforts to protect the site would continue.
Western Apaches have worshiped at Oak Flat for centuries, conducting ceremonies that they say cannot take place anywhere else. Gorsuch included in his dissent a map of the area targeted for mining and a photo from a coming-of-age ceremony for Apache girls, in which they are painted with white clay from the ground at Oak Flat.
The Supreme Court has repeatedly strengthened protections for religious faith in recent years. In 2022, the court ruled that a school board in Washington state discriminated against a former football coach when it disciplined him for postgame prayers at midfield. The next year, in the case of a Christian graphic artist, the conservative majority said free-speech protections shield some businesses from being required to provide services to same-sex couples.
In response to the court’s order Tuesday, an Apache Stronghold lawyer, Luke Goodrich, senior counsel at the Becket Fund for Religious Liberty, said in a statement: “It is hard to imagine a more brazen attack on faith than blasting the birthplace of Apache religion into a gaping crater. The Court’s refusal to halt the destruction is a tragic departure from its strong record of defending religious freedom.”
The justices appeared to have discussed at length how to handle the case involving Apache Stronghold, including it more than a dozen times on the list of potential cases that they discuss at private conferences. At least four justices must vote to take up a case.
In a letter to the Supreme Court this month, Solicitor General D. John Sauer told the justices that a lower court’s temporary order had halted the government’s work on the project.
“As a result, the government is now prohibited, while the petition remains under further consideration, from taking steps to effectuate a land transfer that is both mandated by statute and plainly in the national interest,” wrote Sauer, the administration’s advocate at the high court.
The sacred 6.7-square-mile site is primarily in the Tonto National Forest. Members of the San Carlos Apache tribe have gathered there to worship and conduct religious ceremonies for centuries. According to the tribe, they “cannot have this spiritual connection with the land anywhere else on Earth,” including for rituals such as a sunrise ceremony that is a rite of passage for Western Apache girls.
Roughly 4,500 to 7,000 feet beneath Oak Flat, however, is an ore deposit containing approximately 2 billion tons of copper. The U.S. Forest Service estimates that if mined, this deposit could yield about 40 billion pounds of copper. For that reason, there has long been considerable interest among mining companies in gaining access to the Oak Flat deposit.
In a closely divided decision, the U.S. Court of Appeals for the 9th Circuit allowed the transfer and said Congress is permitted to sell off public lands sacred to a tribe.
A majority of the appeals court said the transfer of government property does not impose a substantial burden on religious exercise when it has “no tendency to coerce individuals into acting contrary to their religious beliefs,” does not discriminate against religious adherents, does not “penalize” them, and does not deny them “an equal share of the rights, benefits, and privileges enjoyed by other citizens.”
In dissent, Chief Judge Mary H. Murguia wrote that the destruction of Oak Flat is a “substantial burden” on the Apaches’ sincere religious exercise under federal law.
The government action, Murguia wrote, will result in a “massive hole obliterating Oak Flat and categorically preventing the Western Apaches from ever again communing with Usen and the Ga’an, the very foundation of the Apache religion.”
