Update: Supreme Court declines to hear case involving Native religious rights
Tribal coalition sought to prevent sale of federal land for copper mine
A coalition of tribal interests has lost its challenge to the planned sale of federal land so mining companies can dig a multibillion-dollar open-pit copper mine that would destroy a site traditionally used for Native American religious activities at Oak Flat, Ariz.
In Apache Stronghold v. United States, the U.S. Supreme Court today (May 27, 2025) announced that it has declined to hear an appeal to the Ninth Circuit Court of Appeals’ 6-5 rejection of the Natives’ claims, based largely on the Religious Freedom Restoration Act.
As is typical when the high court declines to hear an appeal, the court did not detail its reasoning. But one justice, Neil Gorsuch, joined by Clarence Thomas, vigorously argued that the court was making a serious mistake in not hearing the case. Four votes are needed for the court to accept or reject hearing a case; it is not known how the other justices voted on hearing the case, although one justice, Samuel Alito, did not take part in the court’s private discussions on the dispute.
By setting aside the case, or denying certiorari in legal terms, the court let stand the appeals decision, which is binding on only the Ninth Circuit. The decision does not preclude hearing a similar dispute should one arise. As a result, the land sale cannot be further litigated on religious-rights grounds.
Gorsuch’s criticism of the court for not hearing the case was in particularly strong terms. Quoting the 2018 Masterpiece Cakeshop v. Colorado Civil Rights Commission decision involving a baker who refused to bake a cake for a same-sex wedding, Gorsuch wrote:
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. 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. 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. “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.”
Second update (May 19, 2024): Trump administration sides with mining interests in tribal religion case
Although the Donald Trump administration has a deserved reputation for agreeing with conservative religious-freedom supporters in a wide variety of cases, it has split with them in a case in which a group of Native American tribes are claiming that their right to use traditional sacred lands in Arizona supersede plans by mining companies to purchase federal lands for a major copper mining project.
The case is Apache Stronghold v. United States, in which the tribes are trying to halt multibillion-dollar plans. They say that the project would inevitably and permanently prevent them from using land that they have used for hundreds of years near Superior, Ariz. They are represented by the Becket law firm, which has fought for religious freedom in a wide variety of headline-making religious-freedom cases, and also have the support of dozens of churches and other religious organizations across the theological spectrum.
The tribes first sought in court in 2021 to halt the project. They lost in the federal district court and a 2-1 vote of a panel of the Ninth Circuit Court of Appeals. They appealed to the full appeals court and lost on a 6-5 vote before appealing to the Supreme Court.
The Trump administration has been pushing to finalize the land sale, resulting in a decision by District Court Judge Steven Logan last week to issue an injunction preventing further steps toward the land transfer until the Supreme Court either decides not to take the case or issues a ruling.
There is no way to know when or if the Supreme Court will agree to hear the case. Logan noted while issuing the injunction that the high court has relisted the case 13 times, meaning that it has met privately more than a dozen times with the case on the agenda for consideration. That is an unusually high number — suggesting that some Supreme Court justices may be undecided on whether they should hear the case. Or it is possible that consideration has been set aside because of an abundance of high-profile cases this year, including emergency appeals related to attempts by the Trump administration to expand executive powers.
The most recent development in the case is that the U.S. solicitor general, John Sauer, sent a letter to the Supreme Court this week urging it to decide not to hear the case (or, in legal terms, to deny certiorari), saying that the land transfer “is both mandated by statute and plainly in the national interest.”
While a denial of certiorari could happen at any time, a decision to accept the case would almost certainly not lead to a hearing until at least the autumn of this year and a decision sometime in the first half of 2026.
First update (March 5, 2024): On 6-5 vote, appeals court rejects tribal efforts to prevent mining on sacred lands
By the narrowest of margins, a group of Native American tribes in Arizona has been set back in its attempt to prevent the development of a copper mining project that would make it impossible for them to use land that they have considered sacred for hundreds of years.
In Apache Stronghold v. United States, the U.S. Court of the Appeals for the Ninth Circuit last week decided on a 6-5 vote to uphold a trial court decision denying an injunction the tribal groups sought regarding Oak Flat near Superior, Ariz.
The Becket law firm, which represent the tribes and had the support of numerous religious organizations, said the case is now on “a fast track to the Supreme Court.”
Basing its decision largely on the Religious Freedom Restoration Act (RFRA) and the free-exercise clause of the First Amendment, the majority said that a proposed federal land transfer would not deny Native Americans an “equal share of the rights, benefits, and privileges enjoyed by other citizens.”
The minority said that the court “tragically errs” and lamented that the decision “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.”
Original article (March 14, 2023):
A partnership of multinational mining companies has been waging a political and environmental battle for decades to develop one of the nation’s largest copper mines at Oak Flat near Superior, Ariz. But it is possible that the mine could be halted not because of environmental concerns, although those issues remain unresolved, but because of Native Americans’ right to practice their religion on the proposed mining site.
Religious organizations that include Christians, Muslims, Jews and Sikhs have joined forces with tribal groups to oppose a proposed swap of federal land that would allow Resolution Copper to go ahead with a multibillion-dollar project that would create thousands of jobs — but also destroy Oak Flat in the process of retrieving copper and other minerals that lie more than a mile below the surface. (The mining method used would form a crater about two miles wide.) Oak Flat has been used for prayer and religious ceremonies by members of the nearby San Carlos Apache Indian Reservation and other tribes along with their ancestors since since long before the arrival of Europeans to the continent.
The land swap was authorized by a rider attached to the annual defense appropriations act in 2014. It was pushed by Sens. John McCain and Jeff Flake, both R-Ariz., and received little attention at the time outside of Native American circles. The act was signed by President Barack Obama to provide Pentagon funding. Since then, efforts by some Democrats in Congress to overturn the land swap, mostly for environmental reasons, have repeatedly been unsuccessful.
Apache Stronghold, a coalition representing Apaches and their allies, filed suit in federal court, claiming that the proposed land swap violates the Religious Freedom Restoration Act of 1993, the First Amendment guarantees of religious liberty, and an 1852 treaty obligating the federal government to “secure the permanent prosperity and happiness” of the Apaches.
The case is now before the Ninth U.S. Circuit Court of Appeals. A three-member appeals panel decided 2-1 against Apache Stronghold in 2022, but the full court agreed to meet en banc to reconsider the ruling and on March 23 will hear oral arguments.
The list of those filing friend-of-the-court briefs shows that the legal clash pits several traditional advocates of religious liberty against business interests:
The two largest denominations supporting the tribal interests are The Church of Jesus Christ of Latter-day Saints and the General Conference of Seventh-day Adventists. The appeal also is supported by the Christian Legal Society, a nondenominational organization with an evangelical statement of faith. The Islam and Freedom Action Team of the Religious Freedom Institute also joined in their brief. Other faith-related groups submitting briefs were the Mennonite Church USA, the Sikh Coalition and the Jewish Coalition for Religious Liberty.
Advocating for the mining interests are the Pinal Partnership, which was organized to support economic development in Pinal County, Ariz.; and the Arizona Chamber of Commerce.
Arguments focus mostly on RFRA
The briefs as well as the majority and dissenting opinions in last year’s 2-1 ruling suggest that the legal battle will be fought mostly over how to interpret the Religious Freedom and Restoration Act, which was designed from the outset to limit the government’s restrictions on religious liberties beyond what judicial interpretations of the First Amendment had done.1
Under RFRA, the federal government may not “substantially burden” a person’s sincere exercise of religion unless that burden is the “least restrictive means“ of furthering a “compelling governmental interest.”
In his majority opinion last year, Ninth Circuit Court Judge Carlos T. Bea wrote that to “substantially burden” happens either “when individuals are forced to choose between following the tenets of their religion and receiving a governmental benefit” or when persons are “coerced to act contrary to their religious beliefs by the threat of civil or criminal sanctions.” While Bea acknowledged that the mining operation would adversely affect Native Americans’ religious practices, he determined that RFRA does not apply because there is no government benefit nor coercion involved.
“The government makes exercises of religion more difficult all the time. Doing so is not inherently coercive,” Bea wrote.
In her dissent, Judge Marsha Berzon noted that RFRA does not define what a substantial burden is, arguing that the majority erred in limiting the definition to cases involving government benefits or coercion. “Applying the proper definition of the term, there is no doubt that the complete destruction of Oak Flat would be a ‘substantial burden’ on the Apaches’ religious exercise,” she wrote.
RFRA originally applied to both federal and state governments, but courts have limited its application to the federal government. Thirty years ago, RFRA had overwhelming support across the political spectrum and was signed by President Bill Clinton. In recent years, RFRA has fallen out of disfavor with some Democrats as it became increasingly applied to disputes over issues such as abortion and LGTBQ rights.