The Supreme Court refused on Tuesday to hear Apache’s religious challenge to the construction of a massive copper mine on Oak Flat, a strip of untouched federal land in Arizona.
The decision left the lower court’s ruling against tribe members unharmed, marking a major loss for Apache’s base. This is a group that has long argued that the construction of mines violates religious rights by permanently wiping away unique sacred sites used in Apache religious rituals.
This allows the U.S. Forest Service to move forward with plans to issue a final environmental impact report and issue a decision to transfer the land to Resolution Copper, a joint venture between multinational mining company Rio Tinto and BHP Group, before hearing public comments from the final round.
Wendsler Nosie Sr., an elder and leader at Apache’s base, said in a statement that his group will continue to protect the land, about 70 miles east of Phoenix.
“We will never stop fighting. There is nothing to discourage orc flats from protecting them from destruction,” Nossy said. “We urge Congress to take decisive action to stop this injustice while we move forward in court.”
Resolution Copper general manager Vicky Peacey said in a statement that the company is pleased to have a lower court decision.
“Resolution copper mines are essential to ensuring America’s energy future, infrastructure needs, and national defense to ensure national defense of copper and other important minerals,” Peacey said.
She said the project could “community support” and “one of America’s biggest copper mines, adding $1 billion a year to Arizona’s economy and creating thousands of local jobs in areas where mining has played a key role for over a century.
A majority in the High Court did not clarify the stance in the case, but refused to hear the allies of the judges of the U.S. Ninth Circuit Court of Appeals, which controlled Apache in March 2024.
However, Judge Neil M. Golsch wrote the objection, joined by his fellow conservative Justice Clarence Thomas – the majority’s decision not to take the case was a “disastrous mistake” and “consequences that threaten to echo over generations.”
Golsac said “no doubt” he would have heard of the High Court not a sacred site of Native Americans, but that “if the government tried to destroy the historic cathedral.”
“Faced with a government plan to destroy the ancient sites of tribal worship, we owe it to Apache,” writes Gorsuch. “They may live far from Washington, D.C., and their history and religious practices may not be familiar to many, but that shouldn’t make a difference.”
Gorsuch said no one can “sensically” oppose the importance of the case. “As the government has become clear, we intend to clear the way that the solution copper will immediately begin destroying the flats of oak,” he writes.
Another conservative Judge Samuel A. Alito Jr., who was not provided with a reason, but did not take part in the conversation or decision of the case.
The incident touches on many politicized issues, including federal government land use, religious freedom, and efforts to balance corporate interests with limited natural resources and environmental degradation. It also disrupted traditional political divisions, including integrating conservative religious groups and liberal environmental groups behind Apache.
That was the battle between Apache’s base and copper in resolution.
Nosie and other base members have traveled the country to raise awareness of their efforts since the 9th Circuit ruled over them. Resolution Copper continues to prepare billions of dollars worth of mines in the surrounding area, and is responsible for other mining operations, providing substantial financial support to local officials in nearby towns above Arizona.
At the heart of Apache’s challenge to the mines is their argument that not only hinders the ability of the mine to practice their religion, it also eliminates it.
Oak Flat, located on the edge of the Tonto National Forest, is not far from the San Carlos Apache Indian Reservation, for about an hour outside of Phoenix, and is used for an age ritual known as the Sunrise Dance, in which Apaches sweat and young girls are guided by women. Apache believes the land is blessed with home to their creators and angel-like spiritual guardians, and researchers have discovered that the site is archaeologically important not only for Apache, but also for the Hopi, Odum, Yabapai and Zuni people.
Oak Flat is also on top of one of the world’s largest undeveloped copper ore deposits. This demand exploded due to a surge in telecommunications networks, electric vehicles and other technologies using elements.
The land in question was federally protected for decades until 2014 when Republicans added a language that allowed the federal government to sell or exchange mining companies for a must-see bill. Federal planning records show that extracting deposits over decades will become oak flat.
Resolution Copper said he worked closely with Native American advisors to avoid key Apache sites in his plans, including nearby Apache Leap. Peacey said the company has been “working for over a decade to “maintain and reduce the potential impact on tribal, social and cultural interests” and has continued to do so.
Apache Stronghold asked the Supreme Court to file a lawsuit after the 11th review board of judges in the 9th Circuit split the 6-5 and then split the 6-5 in favor of the federal government’s right to use land of choice. Such divisions in circuit decisions often attract the attention of the High Court, but not always.
President Trump’s appointee Judge Daniel P. Collins wrote the majority opinion. He wrote that the religious claims of Apache’s base failed. Because the federal government’s transfer of oak flats to copper could interfere with Apache’s religious practice, but “forced” them to act against their beliefs, and “forced” them to “discriminate” or “punish” or “punish” the pricilege given to other citizens.
He wrote that Apache’s base essentially asked the government to grant “de facto” ownership of “pretty spacious areas” of public land.
Collins was joined by four other Trump appointees and President George W. Bush’s appointees.
In a dissent on Tuesday, Gorsuch wrote that the Ninth Circuit “covers about 74% of all the lands in the Commonwealth and almost a third of the country’s Native American population,” so the ruling that the government can destroy sacred native sites on federal lands will rule most, if not all “sacred conflicts” in the country.
He said the ruling not only threatens native sites, but also all religious sites on federal land, including many churches.
Luke Goodrich, an Apache base lawyer and senior adviser at Beckett at the religious rights law firm, said “it’s hard to imagine a brave assault on faith than blasting Apache’s religious birthplace into a gap crater,” and the court’s “refusing to stop destruction is a tragic departure from a tragic departure from a strong record of religious freedom.”
Washington Times staff writer David G. Savage contributed to this report.
