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.”