The Supreme Court (US) turned down hearing a case that I find vitally important, so I want to talk about it.
So, buckle in for Sen’s Supreme Court hour. Let’s talk about
Apache Stronghold v. United States
In 2014, Resolution Copper (a conglomerate of two large mining interests in the United States) got their Congressional allies to smuggle a vile little provision into the Defense Authorization Act, the annual appropriations bill that funds the US Department of Defense. This provision, called the Land Exchange Act, was added as a last minute rider, meaning it was not given full argument and debate, and was attached to “must pass” legislation. This Act authorized the government to sell parcels of land in an area called Oak Flats in Arizona to Resolution Copper after publishing an Environmental Impact Study, as well as revoking a number of Presidential Orders that secured the land for the Apache people in the area.
Oak Flats, according to Apache Stronghold (a nonprofit group representing thousands of Apache nation members in the American Southwest)(forgive me, I don’t know the indigenous name of the tribe, if you do please let me know!), is a sacred site. It is a point of direct connection to the Creator and various powerful Spirits in the Apache tradition. Ceremonies take place at Oak Flats that cannot occur anywhere else on Earth, including a vitally important coming of age ceremony for Apache girls, whereby they connect with the spirits of Apache women from centuries, perhaps millennia, before them. Apache peoples have been gathering on Oak Flats for centuries.
But, about 20 years before this, a massive copper deposit was discovered beneath Oak Flats. It is potentially the largest copper deposit on Earth, and it is completely untapped. So, Resolution Copper was formed in an effort to begin mining it. And, in 2014, they got their wish, and Oak Flats was ordered released to their mining interests.
The Environmental Impact Study (EIS) was published in Summer of 2021 by the Department Agriculture. In the EIS, DoAG admits that the only “viable and profitable” method of mining this copper deposit was to create a 1.8 mile wide, 2000 foot deep pit, thus completely destroying the site. The government admits that other, less destructive options of mining exist, but “would not be profitable.”
Thus, the Apache people will lose a sacred site forever. There would be no coming back. The site would be destroyed, never to be rebuilt, restored, or revitalized.
So, Apache Stronghold sued.
In 1993, Congress passed the Religious Freedom Restoration Act (The Law, the Law) in response to courts finding that “neutral laws of general applicability” do not “substantially burden the free exercise of religion.” The Law requires that federal courts apply strict scrutiny analysis (something is assumed unconstitutional unless it is the “least restrictive means” and pursues “a compelling governmental interest”) to any federal action that burdens the exercise of religion. Apache Stronghold sued under the Law, claiming that the destruction of their sacred site by a mining conglomerate would “substantially burden” their religious exercise at the site, and that it is not the “least restrictive” means of achieving the aims, and that those aims are not “compelling governmental interests.”
Pretty straight forward, right? If the site is destroyed for a copper company, it can’t very well be used for sacred practice. And case law around this point says as much: removing the ability to practice is necessarily a substantial burden on that practice.
But, the Ninth Circuit Court of Appeals took a different tack: because this involves the “disposition of federal land,” they reasoned, they didn’t need to apply strict scrutiny and the body of jurisprudence involving Indigenous religious practice.
This case was heard in the District court, a panel in the Ninth Circuit, and finally en banc (in front of the entire bench of) the Ninth Circuit. The District denied a preliminary injunction (stop the transfer and destruction before it occurs), and the NinthCircuit panel split, but ultimately denied the petition. Their reasoning relied on a previous case in the Circuit that said that “substantial burdens” exist in two—and only two—instances: when people are required to choose between religious practice and a public service, and when people are coerced to act contrary to their religious beliefs. Now, this is an extremely limiting principle, and any reasonable person would read the complete destruction of a worship site as a “substantial burden” on the ability to worship there. And the en banc rehearing agreed, leading to the nonsense carve out we saw above.
Now, you might be saying,
“Sen, is that ‘Gorsuch, J., dissenting’ I see at the top of that image?” And yes, Neil Gorsuch wrote a dissent to the denial, in which Clarence Thomas joined. And yes, I think they did so because they’re both Free Exercise Clause absolutists, who would love nothing more than to see the Evangelical Christian Church ascend to control the length and breadth of this country, and I despise them both. But, I find the dissent interesting, and the denial of review (and the justices who denied it) more so.
The Court went 7-2 on denying review on this case. And I find it interesting that 4 of the Court’s conservative justices, all of whom have histories of increasing the footprint of religious organizations in public life, decided not to hear this case. Barrett, Alito, and Kavanaugh love expanding religious liberties, and Roberts was one of the deciding votes in Trinity Lutheran just a few years ago, which opened the door to the flurry of religious liberty cases we’ve seen storming the court. Sotomayor, Jackson, and Kagen also interest me, since they all sided with a bulk of the conservative court in Haaland v. Brackeen just a couple years ago (upholding a crucial element of the Indian Child Welfare Act, which keeps indigenous children in their communities when they are placed in the child welfare system, rather than shipping them off to white families).
Speaking of ICWA, let’s look at that decision in Haaland. A couple sued the Department of the Interior, Bureau of Indian Affairs over not being allowed to adopt a native girl from the child welfare system, instead prioritizing a family member with limited prior contact with the child but who was also native. That decision also went 7-2, and in that decision, Thomas and Gorsuch were on opposing sides. I think this gets to the difference in reasoning for wanting to hear this case, and why they agreed this case should be heard. In Haaland, Gorsuch’s concurring opinion centers primarily on the historical context of ICWA. He goes into detailed histories of the removal of indigenous peoples from their lands with the reservation system, from their cultures with residential schools, and from their families with “civilizing” white families. He details the Constitutional history of tribal sovereignty, and their relationships with the Federal and State governments. From my (very limited and meager) reading of his history, Gorsuch seems to be a strong(er) voice for tribal rights and sovereignty in the public legal sphere.
Turning to Thomas, we see the opposite. In Haaland, Thomas wished to overturn ICWA on State’s rights grounds, claiming that the enumerated powers of Congress in the Indian Commerce Clause cannot trump a State’s interest in looking out for a “child’s best interest.” Thomas is a State’s rights hawk, wishing to strike down any and all Federal law that inhibit state lawmakers from exercising power in their state without limit. He’s also permanently angry at the Warren court; the Supreme Court under Chief Justice Earl Warren, which produced the bulk of the more progressive jurisprudence in the court’s history (Brown v. Board of Education, Loving v. Virginia, One, Inc. v. Olesen) (funnily enough, Thomas was appointed when his predecessor, Thurgood Marshall, who served on the Warren court, retired).
Bottom line, to have both of these justices dissenting to a denial of review in this case is interesting. Thomas doesn’t write his own dissent, instead signing on to Gorsuch’s which focuses on the procedural and legal errors (in his view) that the Ninth Circuit made. I by no means think both of them share an ideological backing for wanting to hear this case, and if they had, they would probably have been on opposing sides (depending on reasoning if the majority opinion). I just find it interesting that they were the dissenting justices, and I thought everyone should know about this case.
I’ll end with this: in Gorsuch’s dissent, he highlights the outsized effect the decision not to hear this case will have.
“[the Ninth Circuit] encompasses approximately 74% of all federal land and almost a third of the Native American population…” “As a practical matter, then, if allowed to stand, the Ninth Circuit’s holding below will govern most (if not all) RFRA sacred-site disputes in this country.”
