Land in central Arizona known as Oak Flat and holding great spiritual value to the Western Apache Indians is also on the world’s third-largest deposit of copper ore and at the center of court battles.
However, the Supreme Court chose on May 27 not to remove a lower-court decision to allow transfer of the land and set a precedent for the federal government to transfer thousands of acres of national forestland containing the sacred site to a copper-mining company.
Justice Neil M. Gorsuch has long supported Native American rights, as reported by The Washington Post. He 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, Gorsuch wrote of the decision. “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.”
Congressional legislation in 2014 directed the federal government to transfer approximately 2,400 acres to Resolution Copper for the purpose of building an underground mine. In exchange, both President Joe Biden and President Donald Trump supported the company’s offer of company-owned property. Creation of the mine will include a two-mile-wide crater that will eliminate access to the sacred Apache site.
According to the government, the transfer will be completed after a final environmental impact statement on June 16.
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.” The negotiations come after more than 10 years and led to changes in the plans to “reduce potential impacts on Tribal, social and cultural interests, and this ongoing dialogue will continue to shape the project.”
Apache Stronghold represents members of the San Carlos Apache Tribe and sued the government in 2021 to stop the land exchange. The organization claimed that the land exchange violated the Religious Freedom Restoration Act, which prevents the federal government from substantially burdening an individual’s religious practice unless it furthers a compelling government interest.
The Supreme Court‘s decision is a “heavy blow,” according to Apache Stronghold’s Wendsler Nosie Sr., but said the group would continue efforts to protect the sacred site.
For centuries, Western Apaches have worshiped at Oak Flat and conducted ceremonies that they say cannot be performed anywhere else.
The decision comes despite the Supreme Court repeatedly strengthening protections for religious faith in recent years, including a 2022 court ruling of a Washington state school board discriminating against a former football coach by disciplining him for postgame prayers at midfield.
In 2023, the conservative majority of the court ruled that free-speech protections shield some businesses from the requirement of providing services to same-sex couples in the case of a Christian graphic artist.
“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,” said Luke Goodrich, senior counsel at the Becket Fund for Religious Liberty, who are representing Apache Stronghold.
Approximately 4,500 to 7,000 feet below Oak Flat is a deposit of ore containing approximately 2 billion tons of copper, the U.S. Forest Service estimated. If mined, the ore could yield approximately 40 billion pounds of copper.
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. She wrote that the transfer of the land to the mining company will create 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.”
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Rebecca Barnabi
