Rare request gives Ninth Circuit one more chance to protect sacred site before Supreme Court appeal.
Washington – A coalition of Western Apaches and allies today asked all 29 judges on the Ninth Circuit Court of Appeals to protect their sacred site at Oak Flat from destruction by a mining project. In Apache Stronghold v. United States, a special “en banc” panel of eleven judges split 6-5 earlier this year, refusing to stop the federal government from transferring Oak Flat to Resolution Copper, a foreign-owned mining company that plans to turn Oak Flat into a massive mining crater, ending Apache religious practices forever. (Watch this video to learn more). Today’s appeal gives the full court one more chance to protect the spiritual lifeblood of the Apache people before the case goes to the Supreme Court.
Since time immemorial, Western Apaches and other Native peoples have gathered at Oak Flat for sacred religious ceremonies that cannot take place anywhere else. Known in Apache as Chi’chil Biłdagoteel, Oak Flat is listed in the National Register of Historic Places and has been protected from mining and other harmful practices for decades. These protections were eliminated in December 2014 when a last-minute provision was inserted into a must-pass defense bill authorizing the transfer of Oak Flat to the Resolution Copper company. Resolution Copper is a foreign-owned mining company that plans to turn the sacred site into a two-mile-wide and 1,100-foot-deep crater. The majority owner of Resolution Copper, Rio Tinto, sparked international outrage when it deliberately destroyed 46,000-year-old Indigenous rock shelters at one of Australia’s most significant cultural sites.
“Oak Flat is the heart and soul of the Apache—the place where generations of my people have come to connect with our Creator and perform our most sacred ceremonies,” said Dr. Wendsler Nosie Sr. of Apache Stronghold. “We pray the court will protect Oak Flat the same way the government protects other houses of worship and religious landmarks across the country.”
Apache Stronghold—a coalition of Apaches, other Native peoples, and non-Native allies—filed this lawsuit in January 2021 seeking to halt the proposed mine at Oak Flat. The mine is opposed by 21 of 22 federally recognized tribal nations in Arizona and by the National Congress of American Indians. Meanwhile, national polling indicates 74% of Americans support protecting Oak Flat. The Ninth Circuit ruled in March that the land transfer is not subject to federal laws protecting religious freedom. But five judges dissented, writing that the court “tragically err[ed]” by refusing to protect Oak Flat. Today, Apache Stronghold is asking all 29 judges on the court to rehear the case, which is permitted by the Ninth Circuit’s rules but has never been done before. If the full court declines to rehear the case, Apache Stronghold will appeal to the Supreme Court.
“Blasting a Native American sacred site into oblivion is one of the most egregious violations of religious freedom imaginable,” said Luke Goodrich, vice president and senior counsel at Becket. “Religious freedom is for everyone, and we’re asking the court to guarantee the same religious freedom for Native Americans that everyone else in this country already enjoys.”
In addition to Becket, Apache Stronghold is represented by attorneys Michael V. Nixon and Clifford Levenson.
The Ninth Circuit is expected to decide by this fall whether all 29 judges will rehear the case.