TWH – For over 1,500 years, Native Americans of a variety of tribes have held sacred ceremonies at Oak Flat, which they recognize by the name “Chi’chil Bildagoteel.” Resolution Copper, owned by Rio Tinto, wants to turn the sacred site into a copper mine. Apache Stronghold has sued to defend Oak Flat. In June 2022, a 3-judge panel heard the case and ruled against Apache Stronghold.
Emory oak grove at Oak Flat, AZ – Image credit: Copyright © 2020 Elias Butler Photography All Rights Reserved – CC-BY-SA-4.0
Indian Country Today reported that in early September, the full 11-judge Ninth Circuit Court of Appeals heard oral arguments to void the June decision. The arguments only concerned the merits and process of the decision of the 3-judge panel.
This type of judicial review requested by judges in a case that has already been ruled on or resolved is a rarity, occurring only in about 0.5% of all cases. The arguments heard by the full 11-member court did not involve the merits of the original suit, but rather whether the case should be reheard, “en banc,” meaning by the full court.
Religion News Services reported that the Court would issue its decision by early October.
A brief history of the case
Chi’chil Bildagoteel lies within the Tonto National Forest. It lies on federal land, not on tribal land. It’s a problem many tribes face, where they lack legal control of their sacred sites.
In 2014, the U.S. Congress approved a land swap of this part of the Tonto National Forest for other sites belonging to Resolution Copper. The Apache Stronghold suit argues that this land swap violates the Religious Freedom Restoration Act (RFRA)
The type of mining that Resolution Copper plans to use, “block caving,” has particularly destructive consequences. It leaves behind a huge sinkhole and holds a high risk of polluting the groundwater, as well as a variety of other environmental impacts.
Apache Stronghold, a 501(c)3 nonprofit community organization, began to organize opposition to the land swap almost immediately. In 2015, The New York Times reported that a group of protestors from Apache Stronghold had been traveling the country. They held a flash mob in Times Square to bring attention to the Apache’s attempt to save Chi’chil Bildagoteel. About 50 Apaches drummed, sang, and danced in Times Square.
The group has been traveling from one reservation to another. It met with both potential allies and other Native Americans. They held a spiritual run from Rock Creek Park in D.C. to Lafayette Square, across from the White House. They also went to the United Nations. Neil Young invited some people from the caravan to join him in performing at one of his concerts.
Apache Stronghold operated on the legal front as well and is represented by the non-profit firm, Becket Law which specializes in freedom of religion cases. Becket Law attorneys representing Apache Stronghold filed the RFRA legal challenge with the Ninth Circuit Court of Appeals. That filing challenged the land swap that transferred Chi’chil Bildagoteel to Resolution Copper.
On June 24, 2022, a three-judge panel of the Ninth Circuit ruled in favor of Resolution Copper, a 2-1 decision in Apache Stronghold v. United States.
Judge Marsha Berzon wrote in her dissent that the transfer would “make the site inaccessible and eventually destroy it, objectively preventing the Apache from holding religious ceremonies there.”
The majority statement found “coercion” to be central to violations of RFRA. The majority opinion included this statement:
“The government does not substantially burden religion every time it ends a governmental benefit that at one time went to religious beneficiaries: there must be an element of coercion.”
The most recent action in this case
The next change in the case, came in early September when it was reported that the Ninth Circuit had called for a vote on whether to rehear the earlier case. If the full court rules to rehear the case, the 3-judge ruling will be void. The Ninth Circuit would then rehear the case. If not, Apache Stronghold will take the case to the Supreme Court.
Apache Stronghold organized a caravan to the Ninth Circuit to make their arguments. They began their journey with private blessing ceremonies. On Sept. 1, they left the San Carlos Apache Reservation, meeting with members of the Chumash, Ohlone, Puma, and Quechan tribes along the way. These other tribes also held prayers and blessing ceremonies for Apache Stronghold. The caravan met with supporters as well.
In a press release by Apache Stronghold, Dr. Wendsler Nosie, Sr. said, “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. It is a place of healing that has been sacred to us since long before Europeans arrived on this continent. My children, grandchildren, and the generations after them deserve to practice our traditions at Oak Flat.”
Graphic courtesy of Apache Stronghold media kit
On Sept. 6, the caravan arrived in San Francisco, and they held a day of prayer at the San Francisco Civic Center, an urban plaza, near the Ninth Circuit Court. It lasted from 6:00 am until the oral arguments ended.
Political Activity
U.S. Congressman Raul Grijalva (D-AZ), has introduced a bill in Congress to reverse the land transfer. While in the House, it has moved out of committee, no vote on it has yet occurred. A similar bill introduced in the Senate remains in committee.
The legal dispute is not between Apache Stronghold and Resolution Copper. As the suit challenges the land swap, Apache Stronghold is suing the U.S. Government.
The Phoenix New Times reported that in 2021 the Biden Administration argued before the Ninth Circuit that the land swap failed to violate RFRA.
An ecological irony
The push to transition to green energy may be causing a shortage of metals like copper. That, in turn, could lead to increased mining which would have a variety of negative environmental impacts.
In August 2022, Bloomberg reported that the shift to clean energy superchargers has increased demand for copper. Economists predict the demand for copper to possibly expand by as much as 53% by 2040. Most of this increase will result from the electrification of transportation and other infrastructure.
Supply, however, is only expected to increase by 16%. According to these projections, by 2040 the copper supply will be short about 5 million tons unless developers find new sources of copper. The looming copper shortage could potentially stall transitioning to green energy.
It is not clear if Bloomberg’s supply projection includes copper from the proposed mine at Chi’chil Bildagoteel.
Secular arguments in this case
A variety of parties to this case are making secular arguments to advance their position.
Resolution Copper is arguing that the proposed copper mine will create jobs. The Gila Herald reported that the mine would create up to 3,700 direct and indirect jobs. Its payroll would amount to $270 million. Resolution believes that the available copper deposit could be up to 1.97 billion tons. That amount would be roughly equal to 25% of annual U.S. copper demand.
In contrast, secular opponents of the land swap make ecological arguments. They charge that the mine would leave a 1,000-foot (304.8 meters) deep crater which would have a diameter of roughly 2 miles (3.2 kilometers). The mine would leave millions of tons of toxic waste, and ruin the habitats of many species. Some of those species that would be impacted are on the endangered list.
Rio Tinto, the parent company of Resolution Copper, has come under fire for some of its past operations that damaged or completely destroyed ancient sacred and archeological sites. Most notably, their destruction of the 46,000-year-old Juukan Gorge caves in the Pilbara region of Western Australia as part of an iron ore exploration as part of a possible mine expansion in 2019.
As TWH reported in early 2021, “Major public outcry and backlash from stakeholders over the destruction of what was considered one of Australia’s most significant archaeological research sites resulted in a number of senior executives forced to resign and the company repeatedly issue public apologies.”
Indian Country Today reported that the mine would contaminate 250 billion gallons of water. Already, congress has exempted Resolution Copper from all federal environmental laws.
Like the rest of the southwest, Arizona is suffering from a multi-decade megadrought.
Robin Silver, of the Center for Biological Diversity, asked, “What do we, as the American public, get, except for another toxic dump and loss of water when we are really struggling to get water?”
The Wild Hunt has followed this case and its developments since the first court filing with the most recent reporting in August of this year and January 2021.
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