At Oak Flat, courts and politicians fail tribes

In southeast Arizona, the flat-topped mesas and rocky spires of Chi’chil Biłdagoteel (known in English as Oak Flat) give way to grassy basins where Emory oak trees grow, shedding acorns every year that are collected by members of Western Apache and Yavapai tribes. Spiky tufts of agave and cactus spring from ochre hillsides near the sites where the San Carlos Apache hold their coming-of-age ceremonies. Oak Flat — the ancestral homeland of numerous Southwestern tribal nations and pueblos — is currently managed by the United States federal government as Tonto National Forest. And for the past decade, a proposed copper mine has threatened to permanently alter the area through an underground mining technique that would cause the earth to sink, up to 1,115 feet deep and almost 2 miles across.

In late June, the Resolution Mine inched closer to reality when the 9th Circuit Court of Appeals ruled against a case brought by Apache Stronghold, a grassroots group of Apache tribal members and their allies. The lawsuit hinged on arguments involving religious freedom and the First Amendment, and the fact that, if the mine is developed, Indigenous people will lose access to physical and cultural landscapes central to their way of life.

Apache Stronghold will now appeal to the Supreme Court — one strategy among the many that tribes, conservationists and others are employing to stop the mine. Should the appeal prove unsuccessful, separate lawsuits are pending, focused on environmental concerns and a renewed tribal consultation process with the Biden administration. Still, the 9th Circuit’s decision — which effectively admits that its hands are tied because Indigenous religious practices and cultures are not fully protected under current U.S. federal law — is a worrisome sign. What is happening at Oak Flat exemplifies the larger struggle that tribes face over protecting off-reservation lands, caught between laws rooted in colonial ideology, an inactive Congress and an unpredictable Supreme Court.

Apache Stronghold, a grassroots group of Apache tribal members and their allies, demonstrates at the Oak Flat Run this February. Credit: Ash Ponders

“If this decision holds up, then the law offers virtually no protection to Native American place-based religious exercise,” says Luke Goodrich, an attorney at Becket Law who represents Apache Stronghold in court. “As a practical matter, this sounds the death knell for all Native American religious practices that are tied to federal lands.”

While the copper deposit — one of the largest in the world — was first detected in 1995, the current battle over the Resolution Mine was set into motion in 2014, when the late Arizona Sen. John McCain added a land exchange to a must-pass military appropriations bill. The legislation mandated a trade of 2,422 acres of Tonto National Forest land, which contained parts of Chi’chil Biłdagoteel, for 5,460 acres of private land owned by Resolution Copper, a joint venture by international mining companies Rio Tinto and BHP. The legislation was passed by Congress and signed by President Barack Obama, notwithstanding the objections of tribal nations and coalitions, conservationists, retired miners and the nearby town of Superior, which cited the impacts that the mine and its sunken aftermath would have on the area’s landscape, wildlife and water supply. In the last few years alone, both BHP and Rio Tinto have admitted to damaging Aboriginal cultural sites during mining operations in Australia, in one case a 46,000-year-old cave system. “Rio Tinto destroyed a sacred site at Juukan Gorge because the laws allowed them to do it, and the people responsible for developing and overseeing those laws did not stop them,” Carol Meredith, the former chief executive of PKKP Aboriginal Corporation, told The Guardian last year.

In January 2021, five days before then-President Donald Trump left office, the U.S. Forest Service completed a final environmental impact statement. After it was published, the U.S. was given 60 days to turn the land over to the mining company, as stipulated by the 2014 legislation. But that same month, Apache Stronghold sued the United States to halt the transfer on the grounds that the mine would inhibit the tribe’s religious freedom. (The San Carlos Apache Tribe and a coalition of tribes and environmental groups have also sued the Forest Service over a flawed environmental protection process and lack of adequate tribal consultation. That litigation has since been put on hold, after the Biden administration withdrew the final environmental impact statement published under Trump and reinitiated the tribal consultation process. According to San Carlos Apache Tribal Chairman Terry Rambler, the tribal council met with Forest Service Associate Deputy Chief Barnie Gyant in February, who said the agency would enter into a Memorandum of Understanding with the tribe before moving forward with consultation. Gyant then retired June 30 before the MOU was finished, and the tribe is now waiting for the Forest Service to resume the process.)

Mining infrastructure is seen on the horizon at Chi’chil Biłdagoteel. Known in English as Oak Flat, the land is currently managed by the United States federal government as Tonto National Forest. For the past decade, a proposed copper mine has threatened to permanently alter the landscape. Credit: Ash Ponders

The key question in the religious freedom case was whether the physical destruction of a landscape uniquely important to Apache cosmology constituted a “substantial burden” on tribal members’ ability to practice their religion, which is inherently tied to that place. In a 2-to-1 ruling, the 9th Circuit Appeals Court found that it did not, basing the seemingly counterintuitive decision on narrowly defined legal litmus tests and case law that continue to separate Indigenous people from their ancestral land. “As we reach this conclusion, we do not rejoice,” the majority wrote. “We acknowledge that the land exchange may impact the Apache’s plans to worship on Oak Flat.” Despite this, the court concluded that the laws used in the group’s argument “do not afford Apache Stronghold the relief that it seeks.” The dissenting judge, meanwhile, called the majority’s opinion “overly restrictive” and a “flawed test [that] leads to an absurd result.”

Apache Stronghold will now appeal to the Supreme Court, which recently undermined tribal sovereignty in a ruling that federal Indian law scholars have called a “dramatic departure” from precedent. That decision raised questions about how the court will rule in future matters of tribal sovereignty. However, Goodrich says, the court has also been generally favorable towards cases of religious freedom over the past decade, ruling in favor of such cases in 22 out of 23 instances, though none of those cases had to do with Indigenous religious freedom.

Still, laws formed on a bedrock of injustice are difficult to subvert. “It’s not easy to meet those standards — we really don’t have a lot of effective protection in law at this point,” says Brett Lee Shelton (Oglala Sioux), staff attorney at the Native American Rights Fund and part of the Sacred Places Project, which seeks to protect tribes’ culturally important sites. With existing law providing little help, Shelton and others involved in securing stronger protections are considering other models, such as returning federal or private lands to tribal nations, or negotiating co-management agreements as recently occurred at Bears Ears National Monument.

“If this decision holds up, then the law offers virtually no protection to Native American place-based religious exercise.”

In their June majority opinion, the judges passed the responsibility of a resolution to Congress, writing that “this dispute must be resolved as are most others in our pluralistic nation: through the political process.”

The Save Oak Flat Act currently in the Senate and the House would undo the 2014 land exchange. So far, however, the lawmakers whose district includes Chi’chil Biłdagoteel have not declared an official position, either in support or opposition. Nor have they co-sponsored the bill, which has not yet had any hearings in the Senate. But both Rep. Tom O’Halleran, D-Ariz., and Arizona Democratic Sen. Mark Kelly are up for re-election this fall, with primaries starting next month, making it a potentially contentious election issue. In an emailed statement to High Country News, Kelly said he remains “committed to respecting tribal sovereignty.” No other members of Congress responded to requests for comment on the legislation. In a statement, San Carlos Apache Chairman Terry Rambler underscored the role of lawmakers in the conflict. “It is vital for all members of Arizona’s Democratic Congressional delegation, including Rep. Tom O’Halleran and Senators Mark Kelly and Kyrsten Sinema, to support the bill.”

In testimony last year, Rambler pointed out that the U.S. has recognized the importance of Chi’chil Biłdagoteel before, through presidential order, and again when the Forest Service successfully worked with tribes to list it on the National Registry of Historic Places in 2016. It’s not so much a question of whether or not the government understands the stakes, but whether it will act, either through Congress or the administration. “There is no mitigation that can be done, no replacing Chi’chil Bildagoteel once it is gone,” Rambler said. “The very opportunity to save our religion, culture and way of life is through passage of (this bill.)”

Anna V. Smith is an associate editor for High Country News. She has placed in the Native American Journalists Association’s Native Media Awards in the category of Best Coverage of Native America three times. Email us at editor@hcn.org or submit a letter to the editor. Follow @annavtoriasmith