Justices Gorsuch and Thomas Honor the Apache

Rarely does a dissent to a denial of certiorari from the Supreme Court merit more than a cursory glance, but Justice Neil Gorsuch’s — joined by Justice Clarence Thomas — in Apache Stronghold v. United States is liable to be read as a lodestar of liberty. The case came to the court from the Ninth United States Appeals Circuit, which ruled that the government and a mining collective can extract copper from beneath an Apache holy site at Oak Flat, in Arizona. The Apache call Oak Flat Chí’chil Biłdagoteel and consider it a “direct corridor to the Creator” where they conduct “religious ceremonies that cannot take place elsewhere,” per Justice Gorsuch. He explains that the government’s plan is to blast tunnels 1,000 feet deep and two miles wide. The site would be transformed into a “massive hole in the ground.” The Ninth Circuit held that the plan did “not impose a substantial burden on religious exercise.”That’s the standard set by the Religious Freedom Restoration Act of 1993, the statute signed into law by President Clinton under which a nonprofit, Apache Stronghold, brought suit. RFRA prevents the government from “substantially” burdening a person’s “exercise of religion” unless that burden is “the least restrictive means of furthering a compelling governmental interest.” The law is as much a bulwark of religious liberty as a statute can be.Justice Gorsuch finds the court’s refusal to hear the case a “grave mistake.” The Apache believe that Oak Flat hosts the Ga’an — “holy spirits” — that lie at “the very foundation” of their religion. They see these spirits as “messengers” between “Usen, the Creator,” and the Apaches “in the physical world” and have celebrated their presence there for some 1,500 years. Tribal members warn that Oak Flat’s destruction would “close off a portal to the Creator forever.”Justice Gorsuch relates the baleful history of Oak Flat, which once was ruled by the Western Apache before being claimed by Mexico and then, after the Mexican-American War, by America. A treaty was signed. Still, the Apaches were herded onto reservations, and Oak Flat became federal land. Presidents Eisenhower and Nixon both moved to protect the terra sancta from mining. Pressure to dig, though, began with the discovery of copper in 1995.The judge from Colorado, Justice Gorsuch, has, during his time on the high bench, shown himself to be a zealous defender of Native American interests. In McGirt v. Oklahoma, he wrote for the majority — Justice Samuel Alito, who recused here, was in dissent then — in holding that whole swaths of the Sooner State are to be considered “Indian land” for jurisdictional purposes since they were once reckoned by Congress to be so assigned. “On the far end of the Trail of Tears was a promise,” Justice Gorsuch recalled. We confess to some discomfort with the reach of Justice Gorsuch’s decision in McGirt, which by judicial fiat declared Oklahoma’s eastern half to be outside of the reach of that state’s courts. Chief Justice Roberts warned: “The state’s ability to prosecute serious crimes will be hobbled and decades of past convictions could well be thrown out. On top of that, the court has profoundly destabilized the governance of eastern Oklahoma.”“Just imagine,” Justice Gorsuch writes in this case, “if the government sought to demolish a historic cathedral … I have no doubt that we would find that case worth our time … we owe the Apaches no less.” He cites no mean an authority on that head — his own concurrence in a landmark of liberty, Masterpiece Cake Shop, that “it is in protecting unpopular religious beliefs that we prove this country’s commitment to … religious freedom.”

Justices Gorsuch and Thomas Honor the Apache

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