Members of the Western Apache tribe rushed to the Supreme Court on Monday seeking an emergency order to block a proposed land transfer to a mining company, saying it would destroy a sacred tribal place in Arizona.
Tribal members say they’ve practiced their religion at Oak Flat, or Chi’chil Biłdagoteel, from “time immemorial.” But Oak Flat is on government land that also contains nearly two billion metric tons of copper, and the Trump administration is carrying out a federal law that called for the property to be given to Resolution Copper Mining in exchange for double the land elsewhere.
Apache members say the administration is breaking the law at every turn, violating the religious rights of the tribe, breaking environmental rules by not considering alternative mining practices, and trampling on historic preservation law.
They said the land transfer could be completed at any moment, so they asked the justices for an immediate halt, saying to the government a halt is just another delay, but without it the Apaches lose “everything.”
“The United States Government has a tragic history of destroying Apache lives and lands for the sake of mining interests. The Apaches simply ask that the land not be transferred beyond federal control and destroyed before the courts (including this Court) resolve their claims,” the challengers said in their petition to the high court.
The emergency petition came just three days after the 9th U.S. Circuit Court of Appeals declined the tribe’s request, saying the government seems to have followed the law.
“We nonetheless recognize that this land transfer will fundamentally alter the nature of the land, including destruction of those sites sacred to the tribe,” wrote Judge Milan D. Smith Jr., a George W. Bush appointee. “Despite those grave harms to Native religious practice, Congress has chosen to transfer this land, and plaintiffs have not raised any viable challenges to that decision.”
The land transfer was ordered by Congress in 2014, as part of a broader defense policy bill.
It gave nearly 2,500 acres of national forest land to the mining firm, which must provide more than 5,000 acres of equally appraised land elsewhere.
On Jan. 15, 2021, in the waning days of the first Trump administration, the government attempted to set the wheels turning to complete the transfer. The Biden administration withdrew that plan in March 2021, though legal challenges proceeded through the courts.
The case has even reached the justices before, with the high court twice declining to intervene.
Justice Neil M. Gorsuch said both times that the court should have taken the case.
The Apache members, in their new arguments, told the justices that one of their rulings in June — a decision striking down Montgomery County’s pro-LGBT lesson plans that didn’t allow a parental opt-out — applies to the land swap.
They said the Mahmoud case means that courts must look to see if a government action poses an “objective danger” to a religious practice.
But the 9th Circuit rejected that, saying the Mahmoud case involved education decisions and compelled behavior at odds with religious beliefs. That’s different than a property transfer, the appeals court ruled.
Monday’s new petition to the Supreme Court went to Justice Elena Kagan, who oversees the 9th Circuit.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
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