I really did a double take when I saw these two were the only justices willing to dissent from the SCOTUS decision not to hear the Apaches’ appeal in this case. From Newsweek:
The U.S. Supreme Court declined to review a dispute over Apache sacred land on Tuesday, prompting Justice Neil Gorsuch to issue a dissent describing the denial as a "grave mistake."
The case, brought by the group Apache Stronghold, sought to prevent the federal government's planned transfer of Oak Flat, a site in Arizona sacred to the Apache, to a mining company.
Gorsuch argued that the Court should have agreed to hear the case, saying the lower court's decision "rests on questionable legal footing."
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The Supreme Court denied review in Apache Stronghold v. United States, a case challenging the planned land transfer of Oak Flat (Chi'chil Biłdagoteel) to a private mining company for copper extraction. The Ninth Circuit previously ruled [6-5] that the transfer did not violate the Religious Freedom Restoration Act (RFRA), a federal law protecting religious exercise. The land is considered by Apache communities to be essential for ceremonies and spiritual practice.
Gorsuch, joined by Justice Clarence Thomas, criticized the majority for declining to hear the case.
"Respectfully, that is a grave mistake," Gorsuch said. "This case meets every one of the standards we usually apply when assessing petitions for certiorari: The decision below 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, and it is vitally important."
Gorsuch likened the site's destruction to the hypothetical demolition of a historic cathedral, arguing that the Court should not treat "unpopular religious beliefs" differently from more familiar ones.
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"Before allowing the government to destroy the Apaches' sacred site, this Court should at least have troubled itself to hear their case."
The AP version of this story includes some additional quotes from Gorsuch, along with more background on the case:
“Recognizing Oak Flat’s significance, the government has long protected both the land and the Apaches’ access to it,” Gorsuch wrote, joined by Justice Clarence Thomas. “No more. Now, the government and a mining conglomerate want to turn Oak Flat into a massive hole in the ground.”
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In the waning days of the first Trump administration, the U.S. Agriculture Department issued the required environmental review that would allow the land swap to proceed.
Apache Stronghold sued in federal court to block it. With the change in administrations to President Joe Biden, the Agriculture Department, which includes the Forest Service, pulled back the review to further consult with Native American tribes.
But the suit proceeded and a year ago, the federal appeals court in San Francisco split 6-5 to allow the land transfer to go forward, rejecting Apache Stronghold’s arguments about religious freedom and its invocation of a 1852 treaty between the U.S. government and the Apaches.
The five dissenting appeals court judges described the outcome as a tragic error that would result in “the utter destruction” of the sacred site.
And this really blows my mind as to the possible reason Alito didn’t even participate in the review of the case:
Resolution Copper is a subsidiary of international mining giants Rio Tinto and BHP.
Justice Samuel Alito did not take part in the case, presumably because he owns between $15,000 and $50,000 worth of BHP stock, according to his most recent financial disclosure.
Seriously? He actually recused himself (without calling it that of course) in a case he had a financial interest in?
Then there is this take from CBS News:
"While this court enjoys the power to choose which cases it will hear, its decision to shuffle this case off our docket without a full airing is a grievous mistake — one with consequences that threaten to reverberate for generations," Gorsuch wrote. "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. Faced with the government's plan to destroy an ancient site of tribal worship, we owe the Apaches no less."
The federal government had for more than a century recognized Oak Flat's significance and protected the land, as well as the Apaches' access to it. The site includes old-growth oak groves, sacred springs and burial locations, according to court filings, and the Apaches consider Oak Flat to be "a unique dwelling place of spiritual beings called Ga'an."
But that changed after a copper deposit was discovered under the site in 1995. Seeking to obtain the deposit, two mining companies, Rio Tinto and BHP, created a joint venture called Resolution Copper.
From 2005 to 2013, Resolution Copper's backers in Congress introduced legislation to transfer Oak Flat to the company, though the efforts were not successful. Then, in 2014, a land-transfer bill was included in a must-pass defense package, which authorized the transfer of roughly 2,422 acres including Oak Flat to Resolution Copper in exchange for other parcels of land.
The legislation revoked prior presidential orders that protected Oak Flat from mining and directed the secretary of Agriculture to prepare an environmental impact statement for the project. That environmental impact statement, published in January 2021, confirmed that the copper mine would "directly and permanently" damage Oak Flat. To extract the copper, the company plans to use a technique called panel carving, which Apache Stronghold said would turn the site into a crater that is roughly 1,000 feet deep and nearly two miles wide.
Strip mining by any other name.
While the original environmental impact statement was withdrawn shortly after it was issued, the Trump administration has said that it plans to publish a final version next month and move forward with the land transfer to Resolution Copper.
In an attempt to stop the exchange and subsequent destruction of Oak Flat, Apache Stronghold, which represents members of the San Carlos Apache Tribe, filed a lawsuit in 2021, arguing that the move violates the Religious Freedom Restoration Act and Free Exercise Clause of the First Amendment.
A federal district court declined to block the land transfer, and a divided U.S. Court of Appeals for the 9th Circuit ultimately rejected Apache Stronghold's challenge, finding that the copper mining project did not impose a substantial burden on the tribes' religious exercise.
Which the five-member minority vehemently disagreed with. And where were the three ‘Liberal’ SCOTUS justices in all this? If they had joined Gorsuch and Thomas, SCOTUS would have at least been forced to review the appeal. Likewise, what about Amy Coney Barrett — I thought ‘religious freedom’ cases were supposed to be right in her wheelhouse? Or do Native American religious practices merit less consideration than European ones (particularly of the Roman Catholic variety)?
The Supreme Court considered for months whether to take up Apache Stronghold's appeal, discussing the case at more than a dozen closed-door conferences.
So it’s not like they had such a busy docket that they had no room in their schedule to formally hear the appeal.
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1st UPDATE: This story has now been picked up by Raw Story, which has some good background info on Gorsuch and his dissent:
Gorsuch ... is one of the few justices who served on a court in the West, where tribal issues and federal land use have been particularly thorny issues. He has made the rights of tribal groups one of his most passionate issues on the court, often breaking with his right-wing colleagues to join liberal opinions — or if he has to, standing on his own.
Gorsuch was the author of the Supreme Court's explosive McGirt v. Oklahoma decision in 2020, which forced the U.S. government to honor an 1866 treaty with the Muscogee Nation essentially making the entire eastern half of Oklahoma sovereign tribal land for the purposes of law enforcement.
That ruling was partially weakened, although not formally overturned, by Oklahoma v. Castro-Huerta, from which Gorsuch issued a bitter dissent alongside the liberal justices.
