APACHE STRONGHOLD v.
UNITED STATES, ET AL. Decided May 27, 2025 JUSTICE GORSUCH, with whom JUSTICE
THOMAS joins, dissenting
from the denial of certiorari. (J. Alito did not
participate in the decision.) For centuries, Western Apaches have
worshipped at Oak Flat.
They consider the site a sacred and “direct corridor to
the Creator.” It is a
place where tribal members conduct “religious ceremonies
that cannot take place
elsewhere.” Recognizing Oak Flat’s significance, the
government has long
protected both the land and the Apaches’ access to it. No more. Now, the government and a
mining conglomerate want
to turn Oak Flat into a massive hole in the ground. To
extract copper lying
beneath the land, they plan to blast tunnels that will
result in a crater
perhaps 1,000 feet deep and nearly two miles wide. Seeking to halt the destruction of the
Apaches’ sacredsite,
Apache Stronghold, a nonprofit organization, sued under
the Religious Freedom
Restoration Act of 1993 (RFRA). That law prevents the
federal government from
“substantially burden[ing] a person’s exercise of
religion,” unless that burden
represents “the least restrictive means of furthering [a]
compelling
governmental interest.” In a sharply divided en banc decision,
the Ninth Circuit
rejected Apache Stronghold’s challenge. Though the
government’s plan will
result in the destruction of an ancient sacred site, the
Ninth Circuit
reasoned, that plan does “not impose a substantial burden
on religious
exercise.” Apache Stronghold asks us to review the
Ninth Circuit’s
extraordinary conclusion. But the Court today turns aside
the group’s request.
Respectfully, that is a grave mistake. …Faithful to these beliefs, tribal
members have worshipped
at Oak Flat for centuries, conducting there a number of
religious ceremonies
that cannot take place anywhere else.
One example, the “Sunrise Ceremony,” is a multiday
coming-of-age
ceremony for young women. In the ceremony, a young woman’s
“godmother dresses
her in the essential tools of becoming a woman, and tribal
members surround her
with singing, dancing, and prayer.” The ceremony depends
on Oak Flat in many
ways. It requires the Apache girl coming of age to gather
certain plants from
Oak Flat—plants Apaches believe to have the “spirit of
Chí’chil Biłdagoteel.”
The Ga’an later “come from the mountains,”“enter Apache
men called crown
dancers,” and “bless the girl.” On the
third day of the ceremony, the girl is painted with white
clay from the ground
at Oak Flat. The clay represents the Apache creation
story, in which a
“white-painted woman came out of the earth, covered with
white ash from the
earth’s surface.” When an Apache girl is painted with the
white clay, “[i]t
molds her into the woman she is going to be,” and she is
“‘imprint[ed]’ with
the spirit of Oak Flat.” Her godmother wipes the clay from
her eyes, and the
girl is “reborn,” “transform[ed] into womanhood.” ….Those protections [for Oak Flat, by
the US Government]
started coming under pressure in 1995 with the discovery
of a copper deposit
thousands of feet beneath Oak Flat. Seeking to exploit
that resource, two
multinational mining companies, Rio Tinto and BHP, joined
forces to form
Resolution Copper, and together they began lobbying
Congress for permission to
mine the site. Over the ensuing two decades, various
Members of Congress
proposed at least 12 separate standalone bills aimed at
requiring the government
to transfer Oak Flat to Resolution Copper. Each of those
pieces of legislation
failed. That experience eventually led
Resolution Copper and its
congressional allies to try a different tack. Every year,
Congress passes a
bill called the National Defense Authorization Act (NDAA).
Some call it
“must-pass” legislation. To that bill, legislators
attached “a last-minute
rider” regarding the exploitation of Oak Flat. That
provision, called the Land
Exchange Act, sought to accomplish several things. It
authorized the government
to transfer Oak Flat to Resolution Copper in exchange for
other scattered
parcels of land. It revoked the orders by Presidents
Eisenhower and Nixon
protecting the area from mining. II The Ninth Circuit’s extraordinary
holding easily merits this
Court’s attention. It is far from obviously correct. It
poses a question of
exceptional importance. And it implicates a circuit split.
Simply put, this
case meets every one of the standards we generally apply
when assessing
petitions seeking our review. Start with the question whether the
Ninth Circuit erred.
There are many reasons to think it did. Consider just a
few of them. First, the Ninth Circuit’s
interpretation of the phrase
“substantial burden” is difficult to reconcile with the
statutory text. As a
matter of ordinary meaning, after all, an action that
prevents a religious
exercise does not just burden that exercise substantially,
it burdens it
completely. Even the Ninth Circuit seemed to recognize as
much, acknowledging
that, as a rule, the government imposes a substantial
burden on religious
exercises when it “prevent[s]” them entirely. Exactly
nothing in the phrase “substantial
burden”—or anything else in RFRA’s text—hints that a
different and more
demanding standard applies when (and only when) the
“disposition” of the
government’s property is at issue. To the contrary, RFRA
proceeds to define the
“exercise of religion” to include “[t]he use . . . of real
property for the
purpose of religious exercise.” The statute adds that its
demands apply to
“all” of “Federal law,” without regard to subject matter.
And the statute
provides that “nothing” in its provisions “shall be
construed to authorize any
government to burden any religious belief.” In each of
these ways, RFRA’s terms
suggest that a law disposing of federal real property is
to be treated like any
other. Second, while RFRA may have sought to
restore some of this
Court’s pre-Smith First Amendment jurisprudence, we have
never held that the
statute should be construed to “subsum[e]” that
jurisprudence wholesale. At bottom, it seems the Ninth Circuit
was concerned that a
ruling for Apache Stronghold would effectively afford
tribal members a
“‘religious servitude’” on federal land at Oak Flat. And,
the argument goes,
those who adopted RFRA could not have intended to afford
Tribes or others that
kind of power over the disposition of federal property.
But unexpressed
legislative intentions are not the law. And even if we
were to abandon the
statutory text in favor of guesswork about unenacted
congressional purposes, it
is far from clear why we should make the guess the Ninth
Circuit did. The truth
is, Congress has adopted all sorts of laws restricting the
government’s power
to dispose of its real property. Take just one example,
the Endangered Species
Act. ….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.” |