Apache Stronghold v. United States (2025) 

On May 27, 2025, the U.S. Supreme Court in Apache Stronghold v. United States, 605 U.S. ____ (2025), denied certiorari to a decision from the U.S. Ninth Circuit Court of Appeals, which allowed the government to permit a mining conglomerate to turn a large portion of an Apache worship site at Oak Flat, Arizona, into a copper mine as deep as 1,000 feet and as wide as two miles.  

The Apache Stronghold, a nonprofit organization, had challenged this action by invoking the Religious Freedom Restoration Act of 1993. Congress had adopted that law to upend the Supreme Court decision in Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1992), and restore early precedents in Sherbert v. Verner, 374 U.S. 398 (1963), and Wisconsin v. Yoder, 406 U.S. 205 (1972), protecting the free exercise of religion. However, the Ninth Circuit had ruled that the action did “not impose a substantial burden on religious exercise.” 

Justice Neil Gorsuch wrote a provocative and persuasive dissent, joined by Justice Clarence Thomas, arguing that the case met three standards that the courts usually applied when deciding when to review such cases. In his view, “the decision below is highly doubtful as a matter of law, it takes a view of law at odds with those expressed by other federal courts of appeals, and is vitally important.” 

Apaches have used Oak Flat for spiritual ceremonies for 1,500 years 

Gorsuch explained that Western Apaches had been using the Oak Flat site for some 1,500 years and believed that it was “the dwelling place of the Ga’an — ‘saints’ or ‘holy spirits’ that lie at the very foundation of [their] religion” and that served as “messengers between Usern, the Creator, and [Apaches] in the physical world.” It had long been the venue of a coming-of-age “Sunrise Ceremony” for young women, who are painted with white clay from the site, in a reenactment of their tribe’s creation story.  

Apaches had testified to their belief that destruction of the site will not only sever the ties of women who participated in the Sunrise Ceremony with their ancestors, but “will close off a portal to the Creator forever and will completely devastate the Western Apaches’ spiritual lifeblood.” 

Gorsuch observed that although Oak Flat was on federal land, it had once belonged to the Apaches, then to Mexico, and then to the United States. In 1905, the federal government protected the land as part of the Tonto National Forest. President Dwight D. Eisenhower later protected a portion of the land from mining, an action that President Richard M. Nixon had renewed. In 2016, the National Park Service added the spot to the National Register of Historic Places.  

 In 2014, Congress permitted mining at Oak Flat 

Although at least 12 bills had been introduced in Congress to repeal this protection, they had failed until the 698-page National Defense Authorization Act of 2014, which had a last-minute rider called the Land Exchange Act. The addition to the bill overruled these prior guarantees and granted permission for mining on this site. 

After a district court failed to issue an injunction against the law, the case went to the Ninth Circuit Court. Initially, a majority had decided that while the Religious Freedom Restoration Act had provided government from “‘substantially burden[ing] a person’s sincere exercise of religion,’ unless that burden is ‘the least restrictive means of furthering’ a ‘compelling government interest,’” it would rely on a 2008 Ninth Circuit decision, Navajo Nation v. United States Forest Service, 535 F. 3d 1058. The 2008 case had limited the application of the substantial governmental interest test to when individuals were “forced to choose between following the tenets of their religion and receiving a governmental benefit” or when they were ”coerced to act contrary to their religious beliefs by the threat of civil or criminal sanctions.”  

Ninth Circuit refused to enjoin the law and prevent mining 

The Ninth Circuit decided to overrule Navajo Nation and ruled that “preventing access to religious exercise” should also qualify as a substantial burden. However, in a 6-5 decision, it also decided that this additional exception did not apply to “a disposition of government real property.” 

In critiquing what he considered to be the court’s convoluted reasoning, Gorsuch observed that the Ninth Circuit had relied heavily on the pre-Smith decision in Lyng v. Northwest Indian Cemetery Protective Association, 485 U.S. 439 (1988). In that case, the Ninth Circuit had denied a First Amendment challenge to constructing a road on federal land near an historic Native American site.  

Gorsuch argues Supreme Court should have reviewed case 

Gorsuch proceeded to examine each of the three reasons he thought this case merited review. 

First, he doubted that the Ninth Circuit decision was correct. He noted that the substantial burden test outlined in the Religious Freedom  Restoration Act was designed to apply to all federal laws, including those involving governmental property. He observed that Burwell v. Hobby Lobby Stores, Inc. (2014) had noted that the 1993 religious freedom law was never intended to reinstate all prior pre-Smith decisions, and that Lyng had not involved the destruction of a religious site but the construction of a road near it. He cited the Endangered Species Act as among laws that affected real property rights. 

Second, Gorsuch observed that the case “implicates both a vital question and a circuit split.” He observed that for a time, the National Park Service attempted to bar the Knights of Columbus from holding a mass at the Poplar Grove National Cemetery on Memorial Day and likened the action on Oak Flat to that of prohibiting Christian worship on any U.S. lands.  

Gorsuch: 74% of federal land, one-third of Native Americans in Ninth Circuit jurisdiction 

Third, in terms of consequences, Gorsuch noted that 74% of all federal land and one-third of the Native American population was centered in the Ninth Circuit.  

In a fairly emotional note, Gorsuch observed that the court owed the Native Americans a more thorough consideration of their religious rights: “They may live far from Washington, D.C., and their history and religious practice may be unfamiliar to many. But that should make no difference.” Quoting from Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018), which had upheld the right of a cake decorator to refuse to custom-design a cake for a same-sex wedding, Gorsuch observed that “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.”  

John R. Vile is a political science professor and dean of the Honors College at Middle Tennessee State University.