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Oak Flat fight goes international


Mary Annette Pember
ICT

It isn’t over yet for Oak Flat.

A coalition of Western Apaches and allies are charting courses to the U.S. Supreme Court and the United Nations in their years-long battle to save the site in Arizona’s Tonto Nation Forest known as Chí’chil Biłdagoteel in the Apache language, or Oak Flat.

Considered a sacred site by the Apache tribes, Oak Flat also sits atop the earth’s third-largest deposit of copper and has been targeted for a mining operation by Resolution Copper, a subsidiary of international giants Rio Tinto and BHP.

“Oak Flat is like Mount Sinai to us — our most sacred site where we connect with our Creator, our faith, our families, and our land,” said Wendsler Nosie of Apache Stronghold, a nonprofit organization dedicated to saving sacred sites.

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A panel of 11 judges from the Ninth U.S. Circuit Court of Appeals ruled in March against Apache Stronghold’s efforts to protect the site, but the group’s attorneys made an unprecedented request on April 15 for a second hearing en banc that would include all of the court’s 29 judges.

An en banc review is a rare legal procedure reserved for maintaining uniformity of the court’s decisions or to show the proceeding involves a question of exceptional importance. The hearings are part of the organization’s appeal of the court’s decision in the original 2021 lawsuit Apache Stronghold v. the United States. Apache Stronghold and its attorneys vow to take the case to the U.S. Supreme Court.

They are also focusing efforts on the United Nations in an attempt to bring international pressure on the United States to halt construction of the mine.

‘Irreparable damage’

Resolution Copper, a Brazil-based mining company, set its sights on Oak Flat in about 2013.

Then, in a controversial move in 2014, the U.S. Senate approved a crucial military spending bill that included a land swap for Oak Flat. A rider tucked into the legislation called for Resolution Copper to get 3.75 miles of forest land in return for eight parcels it owns in Arizona.

Related: How the fight to protect Oak Flat has played out

Resolution Copper proposes to build a copper mine on the site to meet the growing world demand for copper to be used in electric vehicles, solar panels and other so-called green technologies. Electrification is expected to increase the world’s annual copper demand to 36.6 million metric tons by 2031, according to the Wall Street Journal’s Sustainable Business newsletter.

Mining supporters in nearby towns say the project will directly employ about 1,500 workers with an estimated $134 million per year in compensation.

Related: The mine that could test the limits of religious freedom

On April 3, however, the San Carlos Apache Tribe sent a formal request to the United Nations Committee on the Elimination of Racial Discrimination, asking the committee to call upon the United States to withhold permission from Resolution Copper to build the proposed two-mile-wide copper mine on Oak Flat.

The tribe claims that the U.S. is violating and threatening to further violate their human rights as guaranteed in the Convention on the Elimination of All Forms of Racial Discrimination, which the U.S. signed in 1966.

Apache Stronghold members march in Phoenix, Arizona, at a February 2021 rally calling for courts to block plans for a copper mine at Oak Flat in southeastern Arizona. (Photo by Alberto Mariani/Cronkite News)

The tribe says the copper mine would destroy Oak Flat and result in irreparable damage to the Apache peoples’ ability to practice important components of their religion and connect with their ancestors in the spirit world.

If the committee decides the request has merit, members could consider evidence and issue an opinion that includes suggestions and recommendations.

“I’m happy to see our tribe has submitted a letter to the UN outlining major concerns regarding the proposed mine,” Nosie told ICT. “This kind of exploitation of Indigenous lands is not only happening here but elsewhere in the world. The U.N. should take these concerns as a means to question Rio Tinto.”

In 2023, San Carlos Apache tribal Chairman Terry Rambler made a statement before the United Nations Permanent Forum on Indigenous Issues Twenty-Second Session in New York.

“Every person, by virtue of being human, has the right to practice their religion,” Rambler said. “By violating the rights of Apaches to practice our religion and maintain our spiritual health and well-being, the United States is failing to comply with international standards incumbent on them as signatories of treaties and declarations that protect these fundamental human rights.”

He continued, “I request the United Nations Permanent Forum call on all states to affirmatively protect Indigenous Peoples’ sacred sites under the mandate of culture, environment, health, and human rights. I also welcome and encourage this body to visit Oak Flat to learn of the significance of this beautiful and holy site to our health as Indigenous Peoples.”

‘A voice to the Apache People’

Apache Stronghold’s lawsuit is argued by attorneys for the Becket Fund for Religious Liberty, the nonprofit law firm that prevailed in the controversial 2015 U.S. Supreme Court case, Burwell v. Hobby Lobby (formerly Sebelius v. Hobby Lobby).

Attorneys argued successfully under the 1993 Religious Freedom Restoration Act that Hobby Lobby owners, an evangelical Christian family, should not be required to provide employees contraceptives under the Affordable Care Act. Becket has used the defense in several cases, primarily with Christian business owners.

The Religious Freedom Restoration Act prohibits any agency, department or official of the United States or any state from substantially burdening a person’s exercise of religion even if the burden results from a rule of general applicability, such as the Affordable Care Act.

Attorneys claim that transferring Oak Flat to Resolution Copper for mining would destroy the site forever, thus rendering core Apache ceremonies impossible and impose a substantial burden on their exercise of their religious beliefs.

Numerous organizations — including Protect the First Foundation, the Southwest Mennonite Conference and the Sikh Coalition — have filed friend-of-the-court briefs in support of Apache Stronghold’s appeal.

Harvard Law School’s Religious Freedom Clinic has also filed an amicus brief supporting Apache Stronghold.

In an interview with The Deseret News earlier this month, Josh McDaniel of the clinic, said that Becket’s work with the Oak Flat case could help in forwarding a more expansive interpretation of the Religious Restoration Act.

“Becket has helped to give a voice to the Apache people,” McDaniel said, “in the fight for a more robust interpretation of RFRA that would extend a lot of protection to a religious group that does not have the mainstream conception of a church.”

This article contains material from The Associated Press. 

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