The long-running movement to protect a sacred Apache site from development is gaining renewed attention following a stinging rebuke from a key member of the U.S. Supreme Court.

In an order on Tuesday, the highest court in the land declined to hear a case that seeks to protect Oak Flat in Arizona from a massive mining project. As is typical with such orders, no reason was given for the denial.

But in a 17-page dissent, Justice Neil Gorsuch blasted his colleagues for refusing to hear Apache Stronghold v. United States. He said the high court’s inaction means the Apache people stand to lose one of their most important places.

“For centuries, Western Apaches have worshipped at Chí’chil Biłdagoteel, or Oak Flat,” Gorsuch wrote in the opening sentence of his dissent.

“No more. Now, the government and a mining conglomerate want to turn Oak Flat into a massive hole in the ground,” Gorsuch added.

"For centuries, Western Apaches have worshipped at
Chí’chil Biłdagoteel, or Oak Flat…

No more. Now, the government and a mining conglomerate want to turn Oak Flat into a massive hole in the ground": Justice Neil Gorsuch blasts Supreme Court for refusing to hear #OakFlat case. pic.twitter.com/mFOPwMBW0s

— indianz.com (@indianz) May 27, 2025

According to Gorsuch, who made history when he joined the Supreme Court in 2017 with the most extensive background in Indian issues, his fellow justices made a “grave mistake” by refusing to hear the dispute. He said the case raises significant matters of law that deserve to be resolved before the federal government turns Oak Flat over to foreign mining interests.

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

Gorsuch pointed out that Oak Flat had long been controlled by the Apache people. Following the end of the Mexican-American War in 1848, he said the United States promised by treaty to confirm the boundaries of Apache tribal homelands but never did so.

“Eventually, the government forced the Apaches onto reservations,” Gorsuch observed, a federal action that resulted in the loss of Oak Flat to the U.S.

Still, Gorsuch noted that the U.S. government protected Oak Flat by designating it as part of the Tonto National Forest in 1905. More recently, Chí’chil Biłdagoteel was added to the National Register of Historic Places in recognition of its importance to Apache people.

Despite the safeguards, Gorsuch said mining interests began lobbying Congress to open Oak Flat to development. Opposition from Indian Country — led by the San Carlos Apache Tribe and the Apache Stronghold — derailed “at least 12 separate standalone bills” to transfer the federal forest land, the justice stated.

But in order to bypass the normal legislative process, the foreign companies behind Resolution Copper convinced Congress in December 2014 to include the Oak Flat transfer in a national defense bill. The “last-minute rider,” as Gorsuch described it, set in motion an environmental review at the Department of Agriculture which all but ensured that Apache objections would not stop the proposed mine — despite its massive size and the negative impacts on tribal religious practices.

“The Department admitted that Oak Flat would ‘be directly and permanently damaged by the subsidence area,'” Gorsuch wrote. “Indeed, the Apaches tell us, the planned crater overlaps almost entirely with the area sacred to them.”

And here’s where Gorsuch set his sights on a different set of federal judges. He accused the 9th Circuit Court of Appeals, which heard the Apache Stronghold’s challenge to the land transfer, of getting the religious freedom issues wrong — not once but twice — by making up what he said were different rules when it came to the protection of Oak Flat.

“To be sure, the government’s plan may promise the destruction of a sacred site and thus prevent religious exercises from occurring,” Gorsuch wrote of the admission that Chí’chil Biłdagoteel will be damaged in a way that prevents the Apache people from practicing their religion at the site.

“But, the court reasoned, none of that is enough to amount to a substantial burden,” Gorsuch said in reference to the 9th Circuit’s decision to use a “different rule” regarding what happens at Oak Flat.

And since the Supreme Court has refused to take up the matter, Gorsuch said the 9th Circuit’s rule-shifting will have a significant impact on Indian Country. The federal appeals court hears cases affecting hundreds of tribes in eight Western states, plus those affecting Native people in Hawaii.

“That circuit encompasses approximately 74% of all federal land and almost a third of the nation’s Native American population,” Gorsuch observed.

The Supreme Court, as a whole, does not usually explain why it refuses to grant or deny a particular petition presented to the justices. But if at least four of the nine justices agree to hear a case, then it will be added to the docket.

Gorsuch’s dissent was joined, surprisingly, by Justice Clarence Thomas, a conservative member of the Supreme Court who almost always goes against tribal interests in Indian law cases.That means at least two justices wanted to add Oak Flat to the docket.

Justice Samuel Alito, another conservative member of the high court, “took no part in the consideration or decision of this petition” according to the order from Tuesday. He wrote the infamous decision that removed a child from her Indian father in the so-called Baby Veronica case

That leaves the remaining six justices — three conservative and three who are considered liberal — in an apparently deep conflict about whether to hear the sacred site dispute. The justices, in fact, had listed and relisted the Apache Stronghold petition for consideration a whopping 17 times between November 2024 and May 2025, according to Docket No. 24-291.

It wasn’t until the petition was considered at a closed-door conference last Thursday on May 22, that the justices finally reached a conclusion. Regardless of the way they viewed the merits of the Oak Flat case, Gorsuch had strong words for his fellow members of the Supreme Court.

“Just imagine if the government sought to demolish a historic cathedral on so questionable a chain of legal reasoning. I have no doubt that we would find that case worth our time,” Gorsuch wrote in the closing paragraph of his dissent.

“Faced with the government’s plan to destroy an ancient site of tribal worship, we owe the Apaches no less,” he continued. “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.”

In a news release on Tuesday, Wendsler Nosie Sr., a former chairman of the San Carlos Apache Tribe, acknowledged the Supreme Court’s denial as a major setback. He established the Apache Stronghold group with the backing of his Indian nation.

“We will never stop fighting — nothing will deter us from protecting Oak Flat from destruction,” Nosie said in the release from The Becket Fund for Religious Liberty, which has been part of the legal team defending Oak Flat.

“While this decision is a heavy blow, our struggle is far from over,” Nosie asserted. “We urge Congress to take decisive action to stop this injustice while we press forward in the the courts.”

The late Congressman Raúl Grijalva, a Democrat from Arizona who passed away on March 13, was a friend of Nosie and a supporter of the Apache Stronghold. He repeatedly championed legislation to rescind the Oak Flat rider and give the Apache people a voice again at their sacred place.

Similar efforts are now being carried on by Rep. Jared Huffman (D-California), who succeeded Grijalva as the highest-ranking Democrat on the House Committee on Natural Resources. He too said the fight to protect sacred sites will continue.

“The final environmental impact statement on Resolution Copper will confirm what tribal leaders and experts have warned all along: foreign mining giants, through their subsidiary Resolution Copper, will irrevocably destroy Oak Flat, where Native peoples have gone to pray, seek spiritual cleansing, and conduct ceremonies since time immemorial,” Huffman said in a news release on Tuesday. “Oak Flat — a federally recognized National Historic Site — will be nothing more than a two-mile-wide, thousand-foot-deep crater once Resolution Copper is done hollowing it out. This will spell the end of the Apaches’ religious practices forever, just so foreign mining corporations can make a quick buck. Because in America, your right to worship is sacred—unless what you worship sits on valuable real estate.”

“Rio Tinto’s scheme to mine Oak Flat is the latest chapter in a long, shameful history of extracting wealth from Native lands while destroying the communities who live there,” Huffman said in reference to one of the foreign companies backing the copper mine. “The Supreme Court may have turned its back for now, but the fight to protect this sacred place — and the people who depend on it — is far from over.”

The National Association of Tribal Historic Preservation Officers (NATHPO), a non-profit focused on protecting tribal cultural heritage, joined a brief in support of the Apache Stronghold when the case was at the 9th Circuit. The group pointed to Gorsuch’s dissent as it reacted to the developments from the Supreme Court.

“Allowing a mining development on Oak Flat is government-sanctioned religious desecration,” NATHPO Executive Director Valerie Grussing said on Tuesday. “As Justice Gorsuch wrote in his dissent, this ruling has ‘consequences that threaten to reverberate for generations.'”

“We hope the US Government and Resolution Copper will see the error of their ways and not demolish this centuries-old and still active religious site, and we will continue to stand with the Apache Stronghold and the Western Apache people in their continued efforts to save Oak Flat,” Grussing said.

Earlier in May, the Apache Stronghold secured a preliminary injunction that prevented the Department of Agriculture from finalizing the transfer of Oak Flat until the Supreme Court resolved the issue. The San Carlos Apache Tribe had taken the ruling as a promising victory.

“We believe this is the turning point in our 20-year fight to prevent the destruction of Oak Flat at the hands of the two largest mining companies in the world,” Chairman Terry Rambler. said on May 10.

But the administration of President Donald Trump has already indicated that it plans to move forward as soon as possible with the Oak Flat transfer. An April 21 letter from the Department of Justice to the Supreme Court indicates that the final environmental impact statement could be published as soon as June 16.

A follow-up letter on May 13 stuck to the goals of giving the federal lands to the foreign mining companies. D. John Sauer, the Solicitor General of the United States, argued that the Oak Flat transfer is “both mandated by statute and plainly in the national interest.”

The letter was written after the Apache Stronghold, a day prior on May 12, informed the Supreme Court of the preliminary injunction. The new activity appears to have finally given the justices a reason to stop relisting the petition.

“It is hard to imagine a more brazen attack on faith than blasting the birthplace of Apache religion into a gaping crater,” said Luke Goodrich, vice president and senior counsel at The Becket Fund for Religious Liberty. “The Court’s refusal to halt the destruction is a tragic departure from its strong record of defending religious freedom.”

“We will do everything in our power to ensure that the Apaches can continue worshiping at Oak Flat as they have for generations,” Goodrich said.

Resolution Copper, meanwhile, welcomed the news. The mining conglomerate said that it had engaged in “extensive consultation and collaboration” with tribal nations.

“The Resolution Copper mine is vital to securing America’s energy future, infrastructure needs, and national defense with a domestic supply of copper and other critical minerals,” Vicky Peacey, the president and general manager of Resolution Copper, said in a statement on Tuesday. “We are encouraged by the significant community support for the project, which has the potential to become one of the largest copper mines in America, add $1 billion a year to Arizona’s economy, and create thousands of local jobs in a region where mining has played an important role for more than a century.”

“More than a decade of extensive consultation and collaboration with Native American Tribes and local communities has directly led to major changes to the mining plan to preserve and reduce potential impacts on Tribal, social, and cultural interests, and this ongoing dialogue will continue to shape the project,” said Peacey.

Oak Flat is about 40 miles east of Phoenix in the Tonto National Forest.