They obtained a temporary injunction in August from a lower-level court blocking the mine for now, but a Supreme Court decision this year not to schedule the case had strengthened the federal government’s control over its land and made it harder for sacred sites to be used as a defence against projects, experts said.
“The Supreme Court’s initial refusal to hear the case is a tragic departure from its strong record of defending religious freedom for all,” Joseph Davis, legal counsel for Apache Stronghold, told The Northern Miner. “But there is still time for the court to reconsider the case.”
Huge project
Resolution is one of the largest undeveloped copper deposits in the world, capable of supplying over a quarter of U.S. demand for decades. The partners have invested more than $2 billion (C$2.76 billion) in exploration, engineering, and community engagement.
U.S. President Donald Trump met this month with BHP CEO Mike Henry, outgoing Rio Tinto CEO Jakob Stausholm and his replacement Simon Trott, then got riled up on his Truth Social platform. Trump called the court “Radical Left,” adding: “3,800 Jobs are affected, and our Country, quite simply, needs Copper—AND NOW!”
The CEOs outlined to Trump “the enormous potential of this project to provide domestic copper and other critical minerals for decades to come,” Stausholm posted separately.
At the centre of the legal battle is the transfer of Oak Flat – Chi’chil Biłdagoteel in Apache – which has been the site of four-day coming-of-age rites for young women for decades. The dispute over Resolution dates to 2014, when Congress authorized a land swap as part of a defence spending bill signed by then-president Barack Obama, giving Resolution Copper rights to Oak Flat.
The land transfer hinged on an environmental impact statement, released in January 2021 during the closing days of the Trump administration, but the Biden administration pulled its approval in March 2021, temporarily freezing the transfer.
Apache Stronghold sued that year, arguing the project breaches constitutional protections and the Religious Freedom Restoration Act (RFRA), which bars the government from imposing a substantial burden on religious practice unless it can show a compelling interest pursued by the least restrictive means.
Lower courts, including the Ninth Circuit Court of Appeals – which hears federal cases from nine western states – have consistently ruled in favour of the government and mining companies. However, the temporary injunction Aug. 18 came through just hours before the transfer was supposed to have been granted.
Substantial burden
The Ninth Circuit’s temporary appeal gives the court time to review the merits of the Apache Stronghold’s petition. There’s a lot at stake, said Davis, who is senior counsel at The Becket Fund for Religious Liberty.
“If left uncorrected, the Ninth Circuit’s ruling leaves a conspicuously Native-American-shaped hole in RFRA’s otherwise broad protection for religious Americans,” he said. “If this ruling stands, it tells agencies and mining companies they can destroy sacred sites on federal land with impunity.”
The Ninth Circuit’s ruling clarifies how substantial burden is defined under RFRA, but it still leaves tribes on uneven footing when challenging federal land decisions, said Sarah Krakoff, an expert on Native American and natural resources justice and a law professor at the University of Colorado.
“It doesn’t say this exactly, but it seems to say the federal government’s decisions about its property, can almost never result in the imposition of a substantial burden,” Krakoff said.
She’s quick to point out that it doesn’t negate RFRA, it strengthens and clarifies the language and definition of substantial burden.
“It’s still going to be very difficult – not impossible – but difficult for a tribal religious practitioner plaintiff’s to prevail when it’s the federal government’s decision about its federal land.”
Reverberating effect
Elsewhere in the southwest U.S., Lithium Americas’ (TSX, NYSE: LAC) Thacker Pass project in Nevada has become a focal point for discussions around Indigenous rights and sacred sites.
While there hasn’t been a direct RFRA lawsuit filed against the project, several legal and advocacy actions have highlighted concerns about the mine’s impact on Indigenous religious practices in the area. Native American tribes have largely leaned on the National Historic Preservation Act (NHPA) and broader environmental laws to challenge Thacker Pass.
In 2021, a federal judge found the Bureau of Land Management (BLM) had fallen short in consulting tribes on the mine’s impact on sacred sites, including the site of an 1865 massacre. But the ruling still let construction move forward. In 2023, the Ninth Circuit turned back an emergency bid to stop the project, siding with the BLM’s judgment.
In August, Lithium Americas announced it was continuing construction and was on track to complete the first stage by late 2027. The project aims to produce up to 160,000 tonnes per year of battery-quality lithium carbonate over five stages.
The Resolution Copper and Thacker Pass disputes underscore a growing challenge for miners: as demand for critical minerals heats up, federal land use and industrial priorities increasingly collide with Indigenous religious and cultural rights, leaving tribes and developers to navigate a high-stakes, rapidly evolving and legally complex landscape.
“The regulatory environment is different than it was a year ago…There’s a big push (towards) deregulation for certain industries,” Krakoff said. “Mining companies that were previously interested in a consultative, inclusive approach should be all the more so, given that they won’t be getting those cues in particular from the current administration.”
