Apache Group is Carrying a Petition to the Supreme Court to Stop a Mine on Land Sacred to the Tribe

GALLUP, New Mexico—A group of Apache opposing a copper mine in the Oak Flat area of Arizona stopped to make their case in New Mexico on their way to Washington, D.C., where they will file a petition asking the U.S. Supreme Court to hear their case against the federal government.

Apache Stronghold, a nonprofit group of San Carlos Apache and others, has been fighting the proposed Resolution Copper mine planned for development in Oak Flat, an area in Tonto National Forest outside of Superior, Arizona.

Oak Flat, known in Apache as Chi’chil Bi∤dagoteel, is ancestral land of the San Carlos Apache Tribe. In English, the name means “Emory Oak Extends on a Level.” For the Western Apache, Oak Flat is a “direct corridor to their Creator and the site of essential religious practices that ‘cannot take place anywhere else,’” Apache Stronghold said in an April appeal to the 9th U.S. Circuit Court of Appeals.

Oak Flat was protected for decades by the U.S. Forest Service, but its status changed in 2014 when Congress authorized a land transfer with Resolution Copper, exchanging the area for other land in Arizona. The land swap was in a rider attached to a defense spending bill.

Resolution Copper is a joint venture of mining companies Rio Tinto and BHP. The project has the potential to supply nearly 25 percent of U.S. copper demand and contribute up to $1 billion annually to the Arizona economy, according to Resolution Copper.

Apache Stronghold members stopped in Gallup as part of a prayer journey that started last month in Washington State. They plan to visit communities on or near tribal lands as they cross the country to learn about natural resource extraction proposals and projects that harm and threaten Indigenous communities.

In their legal case, they assert that the destruction of Oak Flat will stop them from participating in and practicing Apache religious activities because their spiritual connection with the land there will cease to exist. They also claim the federal government is violating the Religious Freedom Restoration Act and a treaty from 1852 between the United States and the Apaches.

“We thought it was an Apache case. But no, it became a Native American case. It became a state case. It’s a country case. It’s a human being case,” Wendsler Nosie Sr. told community members gathered at the plaza outside the McKinley County Courthouse in downtown Gallup.

Nosie, an enrolled member of the San Carlos Apache Tribe and former tribal chairman, is the leader of Apache Stronghold.

“I am going to touch these places that have been sacrificed and destroyed,” Nosie said in an interview. “As humans, it really affects us socially. I am coming to these places to create the narrative of this country.”

The copper deposit in Oak Flat was discovered in 1995, according to the final environmental impact statement released in January 2021 by the U.S. Forest Service.

“We thought it was an Apache case. But no, it became a Native American case. It became a state case. It’s a country case. It’s a human being case.”

The document mentions that several tribes have used the area for spiritual and traditional practices, including the Fort McDowell Yavapai Nation, the Gila River Indian Community, the Hopi Tribe, the Mescalero Apache Tribe, the Pueblo of Zuni, the Salt River Pima-Maricopa Indian Community, the Tonto Apache Tribe, the White Mountain Apache Tribe, the Yavapai-Apache Nation and the Yavapai-Prescott Indian Tribe.

Apache Stronghold filed its lawsuit to stop the land transfer in January 2021 in the U.S. District Court in Arizona. After the district court sided with defendants, the group appealed to the 9th U.S. Circuit Court of Appeals. After that appeal was denied, they requested an 11-member panel of the court to review the matter. They lost that appeal as well. The court ruled “that the mine is not subject to federal laws protecting religious freedom,” according to the Becket Fund for Religious Liberty, a nonprofit legal group representing Apache Stronghold.

In April, the group filed an appeal to have the full panel of judges in the 9th Circuit Court consider the case. The petition was denied in May and the court upheld the lower court decision.

Although the group’s legal argument has centered on the project’s violation of religious freedom, the mine would also have significant environmental impacts, including leaving a crater nearly two miles wide and 1,100 feet deep. Resolution Copper proposes using 775,000-acre feet of water for the project, which is approximately 250 billion gallons of water over the life of the mine.

Nosie said he is aware of the environmental side of the issue but emphasized that Apache Stronghold remains focusing on the violation of religious rights, which is why the group is visiting tribal communities and listening to tribal members about threats to their traditions and cultures from similar projects and proposals.

“In our way, you can tell the health of the people by the way of the land,” said Lian BigHorse, Nosie’s daughter.

Members of Apache Stronghold and supporters traveling with them entered the plaza in front of the courthouse from the east. A young man sang in the Apache language as they followed the two women who led the group.

Norman Patrick Brown, Diné, spoke about the Navajo Nation’s relationship with natural resources, including mining for uranium and coal, and drilling for oil and fossil gas. He also mentioned new proposals that call on extracting helium and hydrogen.

“We know what corporations do here,” Brown said of Dinétah, the tribe’s traditional homeland in the Navajo language. “We call this the national sacrifice area.”

Indigenous people have been fighting against mining and corporations for decades, he added.

“We know the fight firsthand. The sacrifice and the dedication it takes to stand for your people,” Brown said. “It’s a difficult thing to stand on behalf of your ancestors. It’s a difficult thing to stand for all the sacred things that we believe in.”

The fight will continue if companies pursue the tribe’s land, he said.

The Burlington Northern Santa Fe Railroad’s Southern Transcon route goes through downtown Gallup, and a train’s horn occasionally blew when Larry Foster, who is also Diné, prayed for the group to have strength and safe travels. He is a longtime advocate for American Indian Religious Freedom and has been involved with Apache Stronghold for years.

“We know the struggle and do the prayers,” Foster said after the gathering.

The prayer journey started on July 13 in the Lummi Nation in Washington state and stopped on August 6 in Nevada at Thacker Pass, where Paiute and Shoshone oppose a lithium mining project that started last year. The group has also visited California and Arizona. Gallup was the first stop on the group’s visit to New Mexico, which also included a stop in Albuquerque on Aug. 20.

Their journey will conclude in Washington, D.C., where the group intends to file its petition with the U.S. Supreme Court on Sept. 11.

“We’re going to the Supreme Court,” BigHorse said.“We’re going in the right way.”