CNN
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The Supreme Court declined Tuesday to halt a land transfer in Arizona that Western Apache people say will destroy a scared site in order to mine for copper.
The decision leaves in place a lower court ruling that allowed the transfer by the federal government to go forward.
Two conservative justices — Neil Gorsuch and Clarence Thomas — dissented. Justice Samuel Alito recused himself from the case.
“Just imagine if the government sought to demolish a historic cathedral on so questionable a chain of legal reasoning,” Gorsuch wrote in dissent. “I have no doubt that we would find that case worth our time.”
“Faced with the government’s plan to destroy an ancient site of tribal worship, we owe the Apaches no less,” he wrote. “They may live far from Washington, D.C., and their history and religious practices may be unfamiliar to many. But that should make no difference.”
Congress approved the transfer of the federal property in the Tonto National Forest in 2014, and President Donald Trump initiated the exchange in the final days of his first term. The land includes a site known as Oak Flat, where native tribes have practiced religious ceremonies for centuries.
A non-profit sued the federal government, asserting that the transfer violated the First Amendment’s free exercise clause and a law that requires courts to apply the highest level of scrutiny to any law that burdens religious freedom.
The Western Apache, represented by the Becket Fund for Religious Liberty, argued the questions at the heart of the case were “vitally important for people of all faiths.” An adverse decision, they said, would provide “a roadmap for eviscerating” federal religious protections in other contexts.
“Many sacred Apache rituals will be ended, not just temporarily but forever,” the group told the Supreme Court.
The case arrived at the high court before Trump took power again in January. The Biden administration defended the decision in court papers, arguing that “Congress has specifically mandated that Oak Flat be transferred so that the area can be used for mining.”
Lower courts, including the San Francisco-based 9th US Circuit Court of Appeals, ruled that the land transfer did not impose a substantial burden on religious exercise since it doesn’t coerce or discriminate on the basis of religion.
But a federal district court in Arizona on May 9 barred the administration from moving forward with the transfer until the Supreme Court decided what to do with the appeal. US District Judge Steven Logan said the case “presented serious questions on the merits that warrant the Supreme Court’s careful scrutiny.”
