It is the direct corridor to the Creator and is, therefore, holy ground to the San Carlos Apache Tribe—a site rife with deep religious significance, and the location for the tribes ceremonies and rituals dating back before recorded history.
It also sits astride the world’s third-largest deposit of copper ore.
It is Chí’chil Biłdagoteel, or Oak Flat, a section of the Tonto National Forest in Arizona. In 2014, Congress handed 2,422 acres of it to Resolution Copper, a private mining company, in exchange for other land in Arizona.
So the land, sacred to both the Apache tribe and—for non-religious reasons—Resolution Copper, became the center of a dispute when the advocacy group, Apache Stronghold, sued to block the transfer. After a federal appeals court rejected their request last year, the group asked the U.S. Supreme Court to intervene.
On May 27, the Supreme Court declined to hear the case, offering no reason. For religious freedom advocates, the dispute had become a test of a 1993 federal law protecting that freedom. The law, the Religious Freedom Restoration Act (RFRA), says the government cannot “substantially burden” a person’s exercise of religion without a “compelling governmental interest.” Dozens of churches and religious groups had pressed the Court to hear the case.
Luke Goodrich, senior counsel for Becket Law, a firm specializing in religious liberty cases, said, “So the key question in the lawsuit is: Does destroying Oak Flat, swallowing it in a crater, and ending Apache religious exercises forever, substantially burden the exercise of religion? We think the answer is obvious.”
Goodrich expressed his hope that the Supreme Court would agree. However, with the high court’s refusal to hear the case, that question will never be answered.
In response to the Supreme Court’s decision, lawyers for the Becket Fund for Religious Liberty said that courts are far too apt to dodge the question. Two justices, Clarence Thomas and Neil Gorsuch, dissenting, said they would have taken the case. Gorsuch wrote, “Before allowing the government to destroy the Apaches’ sacred site, this Court should at least have troubled itself to hear their case,” adding that if the case had involved a historic cathedral rather than an ancient tribal place of worship, the court would have had no problem hearing the case.
Resolution Copper argued that the RFRA could be interpreted to mean that anyone could block the use of public land if they felt that any activity—“be it camping, hunting, fishing, hiking, or mining”—destroyed the sacredness of the land.
Meanwhile, Wendsler Nosie Sr. of Apache Stronghold said, “While this decision is a heavy blow, our struggle is far from over. We urge Congress to take decisive action to stop this injustice while we press forward in the courts.”
Photo credits: Emory oak grove at Oak Flat, AZ by Elias Butler Photography via Wikimedia Foundation. CC BY-SA 4.0.
