SUPREME COURT REFUSES TO HEAR APACHE STRONGHOLD APPEAL LEAVES "RELIGIOUS FREEDOM" LAW IN A MESS

JUSTICE GORSUCH and JUSTICE THOMAS file a Dissent

The Supreme Court’s May 27, 2025, Denial of the Apache Stronghold petition for review of the case means at least three things:

1. That US “religious freedom” law will remain in the tangled mess District Court Judge Steven Logan explained in his extraordinary May 9, 2025, Order granting an Injunction pending the petition for review.

2. That if the Oak Flat land transfer is not prevented by some other case or cases {Two other cases— 1, 2 — are in play raising issues other than “religious freedom”}, by statute {Bills to “Save Oak Flat” have been filed several times}, or by Resolution Copper abandoning its mining plan {imagine that!}, the Apache will suffer irreparable harm: The copper mine “will close off a portal to the Creator forever and will completely devastate the Western Apaches’ spiritual lifeblood.” [Judge Logan, 2021]

3. The wreck of the Apache effort to use US “religious freedom” laws to protect Apache ancestral lands should finally be sufficient to persuade “federal Indian law” lawyers to gird themselves for the only legal fight that matters: disemboweling the “Christian Discovery” claim of a “right of domination” that supposedly justified the US seizure of Apache lands in the first place and supposedly justifies the US claim of “trusteeship” over Native Peoples and “ultimate dominion” over their lands.

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This post reviews the tangled mess of “religious freedom” law. A subsequent post will look at the “federal Indian law” elements in the case and what they mean for efforts to use US law to protect Native lands and Peoples.

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The Legal Maze of “Religious Freedom” in Apache Stronghold:

STEP ONE:

The maze in Apache Stronghold began with District Court Judge Logan’s February 2021 denial of Apache Stronghold’s effort to prevent the US from “exchanging” Oak Flat to two mining companies for “mineral exploration activities”. In a sign the judge understood the big picture, he described the Apache Complaint as “seeking to prevent the colonization of Apache land”. But Logan also made clear that as a lower court judge he did not have freedom of decision: “Nonetheless, this Court must follow Supreme Court precedent.”

Logan’s 2021 order said the Apache are not “coerced … into violating their religious beliefs nor …[denied] an equal share of the rights, benefits, and privileges enjoyed by other citizens” under current precendents:

• “The Government’s mining plans on Oak Creek will have a devastating effect on the Apache people’s religious practices. …However, Oak Flat …isn’t something the Government gave to the Western Apaches…and then took away because of their religion. Similarly, building a mine on the land isn’t a …’sanction’ under [religious freedom laws]….”

• The statute transferring Oak Flat away from the Apache ”is a neutral law [that] merely authorizes the exchange of land with a mining company, and, although it will affect the Apaches’ religious practices deeply, that is not its purpose.”

STEP TWO:

The maze grew on June 24, 2022, when a 3-judge panel of the 9th Circuit Appeals Court Affirmed Judge Logan’s denial of an Injunction by a vote of 2-1:

The majority agreed with Judge Logan that:

• “The Department of Agriculture will simply transfer ownership of a plot of government land to Resolution Copper, and the Land Exchange does not coerce the Apache to abandon their religion by threatening them with a negative outcome.”

One judge dissented, saying:

• “Voluntary choice is not the baseline [for religious freedom when] the government controls access to religious locations and resources…[such as] traditional Native American religious sites on federal land.”

• “The government [should be required] to prove that the …[land transfer] is in furtherance of a ‘compelling governmental interest’ and is implemented by ‘the least restrictive means.’”

STEP THREE:

The maze was shaken and tangled beginning November 17, 2022, when the 9th Circuit vacated the three-judge panel decison and ordered the case reheard en banc (the full court). Little did they know how deeply the court would fracture when, on March 1, 2024, it affirmed Judge Logan’s 2021 denial of an Injunction: Eleven judges issued seven opinions totaling 241 pages (almost 68,000 words!). The court staff summary “for the convenience of the reader” was itself 5 pages.

The first opinion was per curiam—literally, “by the court”—which usually means an opinion representaing a majority of the judges though none sign it. But in this case the per curiam represented two different majorities who differed in their reasoning:

• One majority (6 judges) ruled that preventing access to religious exercise is a “substantial burden” on religious freedom, and therefore overruled the legal test in one of the court’s own prior decisions—Navajo Nation v. U.S. Forest Service (2008)—a decision that Judge Logan had relied on heavily in his 2021 denial of an injunction.

• The other majority (6 judges) ruled that a 1988 Supreme Court decision— Lyng v. Northwest Indian Cemetery Protective Association—limited the definition of “substantial burden” on religious freedom to “coercion” or “denial of equality” (the definition used in Judge Logan’s 2021 denial) when the government is dealing with “it’s own property”.

The court also issued a Majority Opinion for the Court, presenting the views of the second majority in the per curiam:

• “It is not enough under [Supreme Court precedent] to show that the Government’s management of its own land…will have the practical consequence of ‘preventing’ a religious exercise.” — “Prevent” is not the same as “prohibit”.

A separate opinion, dissenting in part and concurring in part, was filed by a single judge, joined by two other judges, one of whom joined except for a footnote, and the other joined only with respect to Part II of the authoring judge’s reasoning:

• In Part I, joined by the one judge except for a footnote, he dissented from paragraph one of the per curiam’s first majority.

• In Part II, joined separately by the third judge, he concurred with the majority opinion and provided additional reasons to support denial of an injunction.

Two judges filed concurring opinions:

• One concurrence, after agreeing with the first majority per curiam that the legal test for “substantial burden” in Navajo Nation v. U.S. Forest Service should be overruled, said:

  • “In Lyng [v. Northwest Indian Cemetery Protective Association], the [Supreme] Court held that the government’s use and alienation of its own land is not a substantial burden.”

• The second concurrence said:

  • “A ‘burden’ on religious exercise…[on] the government’s own property isn’t the sort of burden our religious freedom guarantees were ever meant to address.”

  • “That is the key to this case. Much has been said about the substantiality of the burden the Apaches will experience when the government’s Oak Flat property is traded and eventually destroyed. It is certainly true that the effect is substantial. But its substantiality is irrelevant in this case.”

  Two Dissenting Opinions were filed:

• One Dissent, joined by four other judges, one of whom excluded part of the Dissent from his joinder, said the Apache are akin to prisoners and therefore have special protection for “religious freedom”:

  • “The government’s unique control of access to Oak Flat [is] a degree of control that is rare outside … prison…. Native Americans are ‘at the mercy

    of government permission to access sacred sites.’”

  • “The United States government forcibly removed the Apaches from their

    ancestral homelands and onto reservations, so that today, the Apaches no longer live on lands encompassing their sacred places.”

  • “Where the government prevents a person from engaging in religious exercise, the government has substantially burdened the exercise of religion.”

  • “[Nevertheless] the government could demonstrate that transferring Oak Flat is justified by a compelling interest pursued through the least restrictive means.”

• The second Dissent was by the judge who excluded part of the first Dissent from his joinder:

  • “I do not believe we should address the merits of the government’s last-minute argument that the Religious Freedom Restoration Act cannot apply to the Land Transfer Act. The government did not bother raising this difficult

    question before the district court or on appeal. … I would not show any

    leniency to the government and would consider this argument waived.”

STEP FOUR:

In May 2025, District Judge Steven Logan stepped into the maze that started with his 2021 denial of an injunction. The Apache had filed a petition to the Supreme Court on September 11, 2024, for a writ of certiorari asking the Supreme Court to review the 9th Circuit decision. On April 25, 2025, Apache Stronghold asked the District Court for an injunction prohibiting transfer of Oak Flat to Resolution Copper during the pendency of the Supreme Court appeal. Judge Logan held a hearing on May 7, 2025, and granted the injunction on May 9.

I referred in an earlier post to Judge Logan’s May 9 order as “a rare example of startlingly clear and cogent legalese”. It was rare because Logan took the hard road—going back into the maze, including his own role in it—rather than the easy road of saying I already made my decison and the 9th Circuit affirmed it. It was startlingly clear because the judge took pains to explain the mess the Circuit Court had left in the wake of its fracturing. It was cogent because it connected all the dots of how legal process works—and doesn’t work.

He explained:

• “It was not this Court’s prerogative [in 2021] to decide whether…[Supreme Court and Circuit precedents]…were wrongly decided (nor may it do so now); it was this Court’s duty to apply the law as settled by existing Ninth Circuit and Supreme Court precedent.”

• “Now, a different question is before this Court—one that implicitly asks it to examine not just the applicability of existing precedent to the case at hand, as it did in 2021, but also to examine the likelihood that that precedent could be

  overturned.”

• “Enough has changed [in the law of this case] to suggest that the Supreme Court…could change the existing precedent in a way that would necessarily change the outcome of this case.”

  • “First, every stage of the Apache Stronghold proceedings has been sharply divided.”

  • “Six of the twelve Ninth Circuit judges to address the merits have agreed with Apache Stronghold. Notably, Judge Nelson, the swing vote en banc, suggested that “perhaps it is time for the Supreme Court to revisit [the] Lyng [precedent]”.

  • “[The] splintering [of the 9th Circuit] can be attributed to the fact that ‘substantial burden’ was never statutorily defined…, nor has the Supreme Court … clarified what, precisely, constitutes a ‘substantial burden.’”

  • “It is a logically puzzling result that under the coercion-based definition of ‘substantial burden’ affirmed by the en banc majority, the Apaches are not ‘burdened’ … [because] they are not being forced to choose between their religion and a benefit conferred upon other citizens, or between their religion and civil or criminal penalties. They cannot choose to practice their religion at all once their sacred religious site is completely ‘obliterated.’”

  • “An additional …unsettled question for the Supreme Court is whether the definition of ‘substantial burden’ under [the Religious Freedom Restoration Act] …should be interpreted uniformly with …the Religious Land Use and Institutionalized Persons Act.”

  • “And despite relying heavily on [the Supreme Court’s 1988] Lyng [decision]… the Ninth Circuit’s en banc order hardly closes the case on how Lyng ought to be interpreted nearly 40 years on, nor has the Supreme Court definitively clarified how its own decision in …[a 1990 religious freedom case], reconciled Lyng with its ‘neutral law’…standard.”

  • “The Court is … persuaded by [Apache Stronghold’s] emphasis on the fundamental freedoms at stake in this case. After all, ‘[r]eligious liberty and the concept of free exercise are grounded in the bedrock of our founding and the structure of our system of government.’”

  • “There is no close question in this matter. It is abundantly clear that the balance of equities ‘tips sharply’ in [Apache Stronghold’s] favor, and that even in the short term, they have established a likelihood of irreparable harm should the transfer proceed.”

  • “Furthermore, they have presented serious questions on the merits that warrant the Supreme Court’s careful scrutiny, should it agree to grant cert.”

  • “Injunctions pending appeal…ought to be reserved for those cases presenting novel, difficult, and important legal questions that warrant further consideration before the status quo is disrupted….If this is not such a case, then what is?”

STEP FIVE:

On May 27, 2025, the Supreme Court denied Apache Stronghold’s request to hear the case. As usual, the denial was a single sentence with no opinon:

• “The petition for a writ of certiorari is denied.”

Unusual was the filing of a dissenting opinion—by Justice Gorsuch, joined by Justice Thomas:

• Gorsuch and Thomas emphasized the fracturing of the 9th Circuit — “a sharply divided en banc decision”—and eviscerated its “extraordinary conclusion”:

  • “A majority of the en banc court announced its decision to overrule Navajo Nation…[saying], a “substantial burden” on religious exercise isn’t limited to the two categories discussed in that case. ‘[P]reventing access to religious exercise’ also qualifies.

  • “You might think that decision would have marked a significant victory for the Apaches. After all, the destruction of Oak Flat would ‘prevent’ them from conducting religious exercises, including ones they believe can occur nowhere else.

  • “But rather than end its analysis there, a different and closely divided 6-to-5 majority of the en banc court proceeded to articulate a special exception to the rule the court had just recognized.

  • “While the phrase ‘substantial burden’ generally reaches actions that ‘preven[t] access to religious exercise,’ …the majority said, that rule does not apply to actions involving ‘a disposition of government real property’”.

  The dissenters added:

  • “How the en banc court arrived at its conclusion is a story

    of its own.” {See my synopsis of the story above.}

• The dissenters also said the 9th Circuit decision “meets every one of the standards we usually apply when assessing petitions for certiorari”:

  • “The decision … is highly doubtful as a matter of law,”

  • “It takes a view of the law at odds with those expressed by other federal courts of appeals,”

  • “It is vitally important.”

  They added:

  • “Before allowing the government to destroy the Apaches’ sacred site, this Court should at least have troubled itself to hear their case.”

• The dissent closed by pointing out what the headline to my post says—the Supreme Court has left the tangled mess of the 9th Circuit decision in place; and it will affect many other cases than the Apache:

  • “Tribal members will suffer the most, [but] they will hardly be alone. The Ninth Circuit’s decision promises to affect many others too…so long as [it] stands.”

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SUMMING UP

• US “religious freedom” remains in the tangled legal maze District Judge Logan explored in his extraordinary 2025 Order.

• If the Oak Flat land transfer is not prevented by some other means, the Apache will suffer irreparable harm.

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NEXT: WHAT THE APACHE LITIGATION MEANS FOR FEDERAL ANTI-INDIAN LAW

• It’s time for Native land issues to be litigated in challenge to US law instead of trying to fit them into US law.

THAT’S THE SUBJECT OF ANOTHER POST …STAY TUNED

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