Association on American Indian Affairs

It wasn’t until 1978, when the American Indian Religious Freedom Act (AIRFA) was passed, that Native religious rights finally received congressional affirmation: 
On and after August 11, 1978, it shall be the policy of the United States to protect and preserve for American Indians their inherent right of freedom to believe, express, and exercise the traditional religions of the American Indian, Eskimo, Aleut, and Native Hawaiians, including but not limited to access to sites, use and possession of sacred objects, and the freedom to worship through ceremonials and traditional rites.(5)
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Unfortunately, the U.S. Supreme Court determined that AIRFA had no means of enforcement for the protection of Native religious rights and remains toothless, being what can only be interpreted as “lip service” from Congress. There are no other federal laws that clearly protect Native religious and sacred places from destruction, or require consent or permissions from the religious body.(7) Without clear and enforceable legal protections for Native religious practices, other interests are able to act without limits. A prominent and current example of this well-worn path of religious oppression through economic exploitation is the land-use dispute between Native Nation rights groups, and the federal government and extractive industry over Oak Flat, or Chi’chil Biłdagoteel as it is named in the Western Apache language.(8) 

Oak Flat and the History of Recognition of Western Apache Religion 
Located in Arizona’s Tonto National Forest east of the town of Superior and behind the sheer cliff faces of Apache Leap lies Chi’chil Biłdagoteel. It is a place of high spiritual importance to the Nations of the Western Apache, who have for generation after generation come to Chi’chil Biłdagoteel to hold coming-of-age ceremonies such as the Sunrise Ceremony, gather medicinal herbs such as bear root and greasewood, seek healing, bury the dead, and worship Usen, the Creator.(9) Chi’chil Biłdagoteel is believed by the Western Apache Nations to be a feminine mountain that gives life to her surroundings and is where the mountain spirits known as Ga’an reside.(10) The Ga’an are messengers and connect people of the physical world directly with the Creator. The high spiritual eminence of Chi’chil Biłdagoteel and her Ga’an is why many Apache ceremonies must take place there and has led Chi’chil Biłdagoteel as being referred to as the “Mount Sinai” of Apache religious traditions.11 

That degree of religious significance did not go without notice by the federal government. In 1955, President Dwight D. Eisenhower designated the area, under Public Land Order 1229, to be free from mining operations due to its cultural and natural value.(12) In 1971, President Richard Nixon renewed the mining ban, but this time with an added caveat that “Oak Flat” could not be mined while it was under federal ownership.13 It is this caveat that has set the stage for the conflict over land use in Chi’chil Biłdagoteel. 

While the Apache Nations have lived in the region since time immemorable, in more recent history after the Apache were forcibly relocated to their present-day reservations, the area surrounding Chi’chil Biłdagoteel has been subjected to extensive silver, copper, and mineral mining. A wilderness defined by red-jagged cliff faces, deep ravines cut by streams, and the sage green of shrubbery dotting rolling hills is also a landscape scarred by open crevices, deep depressions, and hillsides scraped into by more than a century of mining activity. Evidence of the bubble and burst economics of mining can be found in the ruins of abandoned mine shafts in the nearest town of Superior, which experienced eras of prosperity, but today approximately 20 percent of its residents live below the national poverty line.(14) 

The Land Swap 
It is this promise of revived prosperity that mining companies often use to justify further degradation of the land, and such is the case with Chi’chil Biłdagoteel. A massive copper deposit underneath Chi’chil Biłdagoteel was discovered by mining company Resolution Copper, which obtained land rights to the sacred site in 2014.(15) Remember that caveat added by Nixon? In 2014, Congress passed a military spending bill and within that bill was an added agreement (section 3003) that swapped 2,422 acres of Forest Service lands, including Chi’chil Biłdagoteel, with private land owned by one of Resolution Copper’s parent companies, thus “permitting” mining in Chi’chil Biłdagoteel. Now one might ask, why would the federal government be interested in permitting the copper to be extracted? The reason is that copper is an essential metal used in the renewable energy industry and is vital in producing electric vehicles.” Therefore, opening a copper mine, alleged to be one of the most productive in the country, is well within the government’s interest to fulfill its own agenda concerning clean energy expansion and electronics production. 

It is worth mentioning a bit more about Resolution Copper. The company is a joint venture between multinational corporations Rio Tinto (the company that the federal government swapped land with) and BHP Group Limited. Together they are the two largest multinational metal and mining corporations, and neither is a stranger to controversy when it comes to Indigenous religious sites and environmental disasters.(18) Rio Tinto intentionally blasted away a sacred Indigenous site in Australia containing archeological evidence of more than 40,000 years of human activity in 2020.(19) BHP has the dishonorable reputation for being negligent when comes to water usage and protection, having been at the center of the Ok Tedi River disaster in Papua New Guinea and the Bento Rodrigues dam collapse in Brazil.(20) More recently in 2021, BHP was ordered by the Chilean Supreme Court to reapply for water use permits after local Indigenous Tribes raised awareness about how BHP was drawing waters over granted limits from stressed aquifers.(21) Naturally, the land swap to Rio Tinto received a strong negative reaction from citizens of the Western Apache Nations and other Native Nations who hold Chi’chil Biłdagoteel as sacred. Their opposition was only further intensified by the fact that Rio Tinto and BHP have a track record of specifically destroying Indigenous sites and intentionally degrading the environment.(22) The federal government’s decision to swap land with Rio Tinto for mining purposes was seen as not only a blatant disregard for historic protections on Native land but also as an active assault on diverse Native cultures and ways of life. 

The Damage 
These sentiments were solidified by the fact the mining there will result in Chi’chil Biłdagoteel becoming a 2-mile wide, 1000-foot-deep crater.(23) Because the copper ore lies about 7,000 feet beneath the surface, Resolution Copper has settled for a technique known as panel caving mining. The panel caving mining technique involves dividing large ore bodies into “panels” and extracting each panel sequentially until the entire ore body is removed, utilizing gravity to fracture the rock.(24) As the copper ore is extracted, the surface above the ore body will collapse, leading to a gradual sinking of the ground surface at Chi’chil Biłdagoteel and eventually creating a crater. This crater would begin to develop about 4-8 years after the mining would start and the mining operation is expected to last 40 years.(25) 

The slow yet complete destruction of Chi’chil Biłdagoteel from mining does not only have severe negative implications for Native religious practices and cultures but also for the environment. The mine is expected to use at least 250 billion gallons of water over the life of the mine, which it will take from groundwater in the surrounding area, an area that is already water-stressed and in drought. To make a comparison for easier comprehension of how much water that is, the town of Superior, which also uses that same groundwater, has a total population of 2,407, and by contrast, it is estimated the mine will have the same water demand at a city with a population of 140,000 for every year of its 40 years of operation.(27) Not to mention the water after use will be acidic and filled with toxic chemicals, thus degrading the environment and jeopardizing Chi’chil Biłdagoteel‘s ecosystems. For these ecological reasons, environmental protection organizations have voiced their opposition to the proposed mine and have supported Native activists in the fight for Chi’chil Biłdagoteel to remain free of mining activities.(28) 

Advocacy Efforts 
In 2015, the San Carlos Apache Tribe filed a lawsuit against the federal government, challenging the land exchange as a violation of the Religious Freedom Restoration Act (RFRA),(29) the National Environmental Policy Act (NEPA), and other federal laws. The Tribe argued that the destruction of Oak Flat would irreparably harm their ability to practice their religion and maintain their cultural traditions. The lawsuit contended that the government had failed to conduct a thorough environmental review and had not adequately consulted with the Apache People. 

The initial stages of the litigation were marked by setbacks for the Apache and their allies. In 2016, a federal judge dis- missed the San Carlos Apache Tribe’s lawsuit, ruling that the land exchange did not constitute a “substantial burden” on religious exercise under RFRA.(30) The judge also found that the NEPA requirements had been met, despite the Tribe’s claims to the contrary. Undeterred, the Apache and their supporters continued to advocate for the protection of Oak Flat through public campaigns, lobbying efforts, and coalition-building. They brought attention to the broader implications of the case, emphasizing the need to safeguard Indigenous sacred sites across the United States. 

In 2020, the fight for Oak Flat gained renewed momentum. The House of Representatives passed the Save Oak Flat Act, introduced by Representative Raúl Grijalva, which aimed to repeal the land exchange provision in the 2014 NDAA. Although the bill faced an uncertain future in the Senate, its passage in the House represented a significant victory for the movement. Simultaneously, the San Carlos Apache Tribe continued their legal battle. 

In early 2021, a significant development occurred when the U.S. Department of Agriculture (USDA) announced that it would rescind the Final Environmental Impact Statement (FEIS) and Record of Decision (ROD) for the land exchange, citing the need for further review and consultation with affected Native Nations. This decision temporarily halted the transfer, offering a glimmer of hope to those fighting to protect Oak Flat. The pause on the land exchange provided a crucial opportunity for the Apache and their allies to strengthen their legal and advocacy strategies. 

In March 2021, the Ninth Circuit Court of Appeals heard arguments in the Tribe’s appeal of the 2016 dismissal. The Tribe reiterated their claims that the land exchange violated their religious freedoms and that the environmental review process had been flawed. In June 2021, the Ninth Circuit issued a mixed ruling: on one hand the court affirmed the dismissal of the Tribe’s RFRA claim, stating that the land exchange did not impose a substantial burden on religious exercise as defined by the law. On the other hand, the court revived the NEPA claim, acknowledging that there were unresolved questions regarding the adequacy of the environmental review process. This ruling allowed the Tribe to continue their legal challenge on environmental grounds. 

Throughout 2022 and 2023, the San Carlos Apache Tribe, Apache Stronghold, and their allies persisted in their efforts to protect Oak Flat. The legal battle continued to unfold with, with the Tribe seeking to demonstrate the deficiencies in the environmental review process and the failure of the government to adequately consult with Indigenous stakeholders. On the legislative front, advocates for Oak Flat continued to push for the passage of the Save Oak Flat Act in the Senate. The bill, while facing significant opposition from mining interests and their political allies, remained a focal point for those committed to preserving Indigenous sacred sites. 

The Ninth Circuit held that RFRA does not protect the destruction of religious sites. In November 2022, the Ninth Circuit agreed to rehear the case “en banc” (meaning in front of a full panel of eleven judges). The Association, and other Tribes and organizations submitted amicus (friends of the court) briefs supporting Apache Stronghold’s arguments. Unfortunately, the Apache were not successful and in April this year, Apache Stronghold appealed its case to the full 29-judge panel of the Ninth Circuit Court of Appeals.(31) On May 14th, the full-panel court declined to hear its case. Apache Stronghold has stated it will appeal its case to the Supreme Court.(32) 

Resolution Copper is promising prosperity to an area that needs it, and their promise enjoys support from local and Arizona state politicians who believe the mine could become one of the most productive in the country and contribute to renewable energy expansion.(33) Yet at the same time, there is wide support for Apache Stronghold from an alliance of Native rights (including the Association on American Indian Affairs), social justice, and environmental protection organizations. Support has even come from the national level with Senator Bernie Sanders and Representative Raul Grijalva having introduced to Congress the Save Oak Flat Act in 2021 and then reintroduced during the 2023-24 congressional session.(34) 

What Does the Future Hold? 
So where does this leave us? In addition to a potential continuation of the litigation at the U.S. Supreme Court, the San Carlos Apache Tribe has petitioned the United Nations Committee on the Elimination of Racial Discrimination to call upon the United States government to withhold the transfer of sacred Oak Flat for the proposed Resolution Copper Mine in Arizona.(35) It is, therefore, now more important than ever to raise awareness about the issue of Native religious rights and continue to show support for Apache Stronghold. An easy and immediate way to do that is to sign this petition, stating your support for recognizing Chi’chil Biłdagoteel‘s religious significance, keeping it free from mining activities, and holding the land swap agreement held to greater public scrutiny. Ultimately, a ruling in favor of Apache Stronghold would provide a clear precedent for protecting Native religious practices and sacred places over economic interests. 

On the flip side, a ruling in favor of the land swap agreement would only be another display of the status quo exploiting sacred sites for diminishing natural resources and temporary economic gains. This is why the fight matters, the federal government knows Chi’chil Biłdagoteel is sacred, yet it chooses to give the land up to bad actors and display complete disregard for Native religion, even though it is obligated by law not to do so. The federal government must be held accountable by the people, Native and non-Native. 

I can’t help but wonder if the Ancestors of the Western Apache Nations were alive to see their beloved homeland today, would they recognize it? Would they know their way around a landscape dominated by deep cuts and holes from mining? Would they find their sacred places? Probably not, and isn’t that reason for alarm? We cannot let unbridled capitalism and racism diminish and oppress what is sacred. Imagine the public outrage if a large copper deposit were found underneath St. Patrick’s Cathedral in NYC and it was decided to tear it down, leaving a giant hole in the earth, while in that process poisoning the surrounding area’s water. I hope you can see why Apache Stronghold is fighting so hard to protect Oak Flat and why it matters to support them. 

It’s a violent and destructive thing to move a people from their homelands, their identity and culture. But if their church is still there, then there is hope for tomorrow. What do we say about the people involved in destroying all hope? Will we allow this hallowed earth to be hollowed out by mining?

Sources:

1. “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” 
2. Lee Irwin, “Freedom, Law, and Prophecy: A Brief History of Native American Religious Resistance,” American Indian Quarterly 21, no. 1 (1997): pp. 35-55. 
3. Jace Weaver, “Courts of Indian Offenses,” Teaching American History (blog), accessed May 16, 2024, https://teachingamericanhistory.org/document/ courts-of-indian-offenses/. 
4. Irwin, “Freedom, Law, and Prophecy.” 
5. ​42 U.S. Code § 1996. 
6. Native Voices, “1978: American Indian Freedom of Religion Legalized,” accessed May 7, 2024, https://www.nlm.nih.gov/nativevoices/timeline/545. html. See also, Irwin, “Freedom, Law, and Prophecy.” 
7. Laws such as the National Historic Preservation Act, the National Environmental Policy Act, and the Native American Graves Protection and Repatriation Act merely require procedural consultation, which has been defined by courts as simply informing a Native Nation about an action that will harm cultural sites and areas and allowing Nations to provide information for consideration. The new NAGPRA regulations have redefined consultation but does not mandate that a Native Nation must consent to the destruction or removal of cultural items or Ancestors on federal lands. See 43 CFR § 10.6(b). 
8. Apache Stronghold, “Newspaper & Magazine Articles – Apache Stronghold,” accessed April 18, 2024, http://apache-stronghold.com/articles.html. 
9. Apache Stronghold, Earthbeat, “Why Oak Flat in Arizona Is a Sacred Space for the Apache and Other Native Americans,” National Catholic Reporter, May 16, 2021, accessed June 12, 2024, https://www.ncronline.org/earthbeat/justice/why-oak-flat-arizona-sacred-space-apache-and-other-native-americans#; see also Zinaida Carrol, “Oak Flat | Chi’chil Biłdagoteel,” 2021, NIWRC, accessed on June 18, 2024, https://www.niwrc.org/restoration-magazine/june- 2021/oak-flat-chichil–bildagoteel; and Jeanne Eder Rhodes, “Copper Mine or Sacred Land: The Fight for Oak Flat,” National Wildlife Federation, September 27, 2023, accessed June 18, 2024, https://www.nwf.org/Home/Magazines/National-Wildlife/2023/Fall/Conservation/Oak-Flat-Copper-Mine-Apache-Stronghold. 
10. Carrol, “Oak Flat | Chi’chil Biłdagoteel.” 
11. Amelia Arvesen, “The Fight for Oak Flat in Arizona,” The Conservation Alliance, April 4, 2023, accessed June 18, 2024, https://conservationalliance. com/2023/04/the-fight-for-oak-flat-in-arizona/. See also, Carrol, “Oak Flat | Chi’chil Biłdagoteel.” 
12. Asa Burroughs, “The Mine at Oak Flat: A Timeline of Government Bad Faith,” BillMoyers.com (blog), December 29, 2020, accessed June 18, 2024, https:// billmoyers.com/story/the-mine-at-oak-flat-a-timeline-of-a-government-bad-faith/. 
13. Burroughs, “The Mine at Oak Flat.” 
14. Data USA, “Superior, AZ | Data USA,” 2021, accessed June 18, 2024, https:// datausa.io/profile/geo/superior-az. 
15. Anita Snow, “How Apache Stronghold’s Fight to Protect Oak Flat in Central Arizona Has Played out over the Years,” AP News, March 2, 2024, accessed June 18, 2024, https://apnews.com/article/oak-flat-copper-timeline-72elee205 80f1ee0e57dd7653b6a770f. 
16. Burroughs, “The Mine at Oak Flat.” 
17. Eder Rhodes, “Copper Mine or Sacred Land.” 
18. Calla Wahlquist, “Rio Tinto Blasts 46,000-Year-Old Aboriginal Site to Expand Iron Ore Mine,” The Guardian, May 26, 2020, sec. Australia news, accessed June 18, 2024, https://www.theguardian.com/australia-news/2020/may/26/rio-tinto- blasts-46000-year-old-aboriginal-site-to-expand-iron-ore-mine. See also Saul Jones, “BHP: Don’t Believe Its Hype,” October 21, 2020, accessed June 18, 2024, https://theecologist.org/2020/oct/21/bhp-dont-believe-its-hype. 
19. Wahlquist, “Rio Tinto Blasts 46,000-Year-Old Aboriginal Site to Expand Iron Ore Mine.” 
20. MiningWatch Canada, “One of World’s Worst Mine Disasters Gets Worse – BHP Admits Massive Environmental Damage at Ok Tedi Mine in Papua New Guinea, Says Mine Should Never Have Opened | Mining Watch Canada,” 1999, accessed June 18, 2024, https://miningwatch.ca/news/1999/8/11/one-worlds-worst-mine-disasters-gets-worse-bhp-admits-massive-environmental- damage-ok. Sarah Johnson, “Victims of Brazil Dam Disaster Accuse Mining Giant BHP of ‘Environmental Racism,”” The Guardian, July 14, 2023, sec. Global development, accessed June 18, 2024, https://www.theguardian.com/global- development/2023/jul/14/victims-of-brazil-dam-disaster-accuse-mining-giant- bhp-of-environmental-racism. 
21. Business and Human Rights Resource Centre, “Chile: BHP to Pay $93m for Environmental Harm at Escondida,” Business & Human Rights Resource Centre, accessed May 20, 2024, https://www.business-humanrights.org/en/latest-news/ chile-bhp-to-pay-93m-for-irreparable-damage-to-environment-at-escondida-copper-mine/. MiningWatch Canada, “One of World’s Worst Mine Disasters Gets Worse – BHP Admits Massive Environmental Damage at Ok Tedi Mine in Papua New Guinea, Says Mine Should Never Have Opened | Mining Watch Canada.” 
22. Apache Stronghold, “Newspaper & Magazine Articles – Apache Stronghold.”  
23. Apache Stronghold; see also US Forest Service, “Final Environmental Impact Statement Resolution Copper Project and Land Exchange” (United Stated Department of Agriculture, 2021), accessed June 18, 2024, https://www. resolutionmineeis.us/sites/default/files/feis/resolution-final-eis-vol-1.pdf. 
24. Katharine E Lovett, “Not All Land Exchanges Are Created Equal: A Case Study of the Oak Flat Land Exchange,” 2018, accessed June 18, 2024, https://www. colorado.edu/law/sites/default/files/attached-files/lovett-webversion.pdf. 
25. US Forest Service, “Final Environmental Impact Statement Resolution Copper Project and Land Exchange.” Also, Lovett, “Not All Land Exchanges Are Created Equal: A Case Study of the Oak Flat Land Exchange.” 
26. James Wells and PG L.Everett & Associates, “The Proposed Resolution Copper Mine and Arizona’s Water Future,” 2021, accessed June 18, 2024, https:// s3.documentcloud.org/documents/21079388/2021 09 10 jwells 2021 hydro report draft.pdf. 
27. Wells and PG L.Everett & Associates. 
28. Center for Biological Diversity, “Oak Flat,” accessed May 19, 2024, https:// www.biologicaldiversity.org/campaigns/oak flat/; Wells and PG L.Everett & Associates, “The Proposed Resolution Copper Mine and Arizona’s Water Future.” See also, Eder Rhodes, “Copper Mine or Sacred Land.” 
29. Enacted in 1993, RFRA, 42 U.S.C.§§ 2000bb et seq., prohibits any federal or state agency, department, or official from substantially burdening a person’s right to religious exercise. See also, Arienne Calingo, “Oak Flat under Threat: Professor Stephanie Barclay Leads Discussion on Urgency of Protecting Indigenous Sacred Site,” Religious Liberty Initiative, March 20, 2024, accessed June 18, 2024, https://religiousliberty.nd.edu/news/latest/oak-flat-under-threat- professor-stephanie-barclay-leads-discussion-on-urgency-of-protecting- indigenous-sacred-site/:; Mary Annette Pember, “Oak Flat Fight Goes International,” ICT News, May 1, 2024, accessed June 18, 2024, https://ictnews. org/news/oak-flat-fight-goes-international. 
30. San Carlos Apache Tribe v. United States Forest Service, 2016 U.S. Dist. LEXIS 81023 (D. Ariz. June 21, 2016). 
31. Levi Rickert, “US Circuit Court Rules Against Preservation of Oak Flats Sacred Site,” Native News Online, March 3, 2024, accessed June 18, 2024, https:// nativenewsonline.net/sovereignty/us-circuit-court-rules-against-preservation- of-oak-flats-sacred-site. See also Becket, “Apache Stronghold Asks 29-Judge Appeals Court to Save Oak Flat.” 
32. Apache Stronghold, “Newspaper & Magazine Articles – Apache Stronghold.”  
33. Anita Snow and Matthew Daly, “A US Appeals Court Ruling Could Allow Mine Development on Oak Flat, Land Sacred to Apaches,” AP News, March 2, 2024, accessed June 18, 2024, https://apnews.com/article/apache-stronghold-ninth- circuit-mining-633633 afcc0d348913bf06d0ae8228d7. 
34. Apache Stronghold, “Save Oak Flat Act,” 2024, accessed June 18, 2024, http:// apache-stronghold.com/save-oak-flat-act.html. 
35. See The Gila Herald, “San Carlos Apache Tribe Requests United Nations to Demand the U.S. Protects Oak Flat,” May 2, 2024. Last accessed on June 14, ​2024, https://gilaherald.com/san-carlos-apache-tribe-requests-united-nations-to-demand-the-u-s-protects-oak-flat/ 

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