- Details
- By Professor Victoria Sutton
The U.S. Supreme Court is asked to review federal legal questions when they are in conflict between federal circuit courts, or it is an issue that is important. So you cannot simply appeal to the U.S. Supreme Court, rather you ask them if they will review a legal issue for an opinion with a petition for a writ of certiorari.
Sometimes other cases in lower courts are put on hold while they wait for the U.S. Supreme Court to decide the case, or decide if they want to hear it.
Two weeks, the U.S. Supreme Court declined to hear the Oak Flat case which has been working its way through the 9th Circuit over the last two years. The issue arose years before in federal district court, and before that in the U.S. Congress with now deceased Sen. John McCain creating the private deal legislation that created the conflict.
It does not look like the Fifth Circuit waited to hear from the U.S. Supreme Court on a case with a similar issue of religious liberty because they declined to hear a case brought by a Native American tribe in Texas on May 1, 2025. The U.S. Supreme Court issued their denial of the petition for writ of certiorari and dissenting opinion, on May 27, 2025.
Justice Gorsuch wrote a stinging dissent to the denial of the petition for writ of certiorari. He argues there are three reasons the Court should not have denied hearing the case:
Respectfully, that is a grave mistake. 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. Before allowing the government to destroy the Apaches’ sacred site, this Court should at least have troubled itself to hear their case.
The U.S. Supreme Court petition was the only procedural hold on the release of the Environmental Impact Statement (EIS) from the U.S. Department of Agriculture (USDA). The USDA, apparently ignorant of the entire history of this sordid deal, will be carrying out the final deal of Sen. McCain—something that President Donald Trump would likely not embrace.
Without the hearing by the U.S. Supreme Court, the federal government will release the EIS, triggering the immediate transfer of land to the Resolution Copper/Rio Tinto internationally-owned corporation [owned by Great Britain and Australia as well as China (9.3%)].
As Justice Gorsuch lamented, this denial will set into motion years of confusion and potential destruction of other sacred sites in America.
Lipan Apache Tribe and a Sacred Site in Texas
Meanwhile in Texas, another sacred site is at risk.
The Lipan Apache Tribe is a state recognized tribe in Texas. While there is no uniform process or criteria for tribal recognition in Texas, a few tribes in Texas are recognized by state legislation. This suggests they are recognized by the state government as a sovereign nation with a government to government relationship with the state. This has never been tested, but this is certainly the legal theory of state recognized tribes, analogous with federally recognized tribes and the federal government.
The City of San Antonio decided to block access to a sacred site for the Lipan Apache, a state recognized tribe, to land held by the city. The Western District Court held that the City could not block access, but failed to prohibit further destruction to the habitat of the cormorant which is a bird that is part of the creation story associated with this site.
The Civil Right of Freedom of Religion has failed Native America
Although the American Indian Freedom of Religion Act (AIFRA)⁵ and the Native American Graves and Repatriation Act are federal laws available only to federal recognized tribes in that artificial, political construct of the law, there is still a First Amendment protection of the freedom of religion — but not, it seems, for Native Americans’ sacred sites.
There has never been a case using the First Amendment, Freedom of Religion Clauses involving real property that has successfully been protected as a Native American sacred site. The Lyng case involved the right of the Forest Service to build a road through the middle of a sacred grove in a secluded forest for purposes of harvesting timber, was weighed against the burden this might put on the complete destruction of the sacred site, and found it did not burden or coerce the Native Americans to not practice their religion — setting in motion the absurd results you see in today’s Apache Stronghold opinion that stands because the U.S. Supreme Court refused to resolve the absurd spiral of cases that has produced these nonsensical results.
Rights such as making sweat lodges available to Native American prisoners, has been a successful freedom of religion challenge, but that does not involve real property and sacred sites. So it is not surprising that this right has all but disappeared in legal efforts to protect sacred sites.
The Carrizo Comecrudo Tribe of Texas, another non-federally recognized tribe in Texas, is also not state-recognized. However, it is organized as a 501(c)(3) in Texas, and as a group should have standing in its efforts to protect its sacred sites, using NEPA for example. The Tribe has defended sacred sites that have been under consideration for the SpaceX, NextDecade energy project as well as LNG pipelines. The tribe has not used the First Amendment, Freedom of Religion to protect the site, but rather the National Environmental Policy Act.
The Indigenous Peoples of the Coastal Bend, and the Karankawa Kadla Tribe of Texas are not federal recognized tribes, but are organizations in the state of Texas. The U.S. District Court found they had associational standing.⁷ They challenged the development and dredging of coastal waters in Texas, using NEPA, the Clean Water Act (CWA) wetlands permitting process (Sec. 404) and the Administrative Procedure Act (a procedural challenge). Both tribes attest they have a close “spiritual . . .connection” to this land. However, they do not make a First Amendment, Freedom of Religion claim. The court’s opinion does not address the “spiritual” claims of the plaintiff. The case was found in favor of the Corps of Engineers, primarily on procedural grounds.
(The plaintiffs failed to include their claims in their motion for summary judgment, thereby waiving them.).
So what is to become of the hope of realizing Freedom of Religion for Native American Tribes? I have argued the legal theory is wrong to style it as individuals seeking Freedom of Religion, but rather it should be Tribes based on tribal sovereignty with a new legal test for determining the application of the First Amendment for tribal traditional sacred and spiritual practices that are part of the land.
In the meantime, this will be left to the federal Circuit courts to either craft a new test likely along these lines, or continue the spiral of absurd cases that was the very reason the issue was petitioned to the U.S. Supreme Court.
Justice Gorsuch will prove prescient.
To read more articles by Professor Sutton go to: https://profvictoria.substack.
Professor Victoria Sutton (Lumbee) is a law professor on the faculty of Texas Tech University. In 2005, Sutton became a founding member of the National Congress of American Indians, Policy Advisory Board to the NCAI Policy Center, positioning the Native American community to act and lead on policy issues affecting Indigenous communities in the United States.
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