‘So much has been taken.’
Four Apache women filed suit in Washington, D.C., asking a judge to block a land exchange needed to build a copper mine at Oak Flat.
A group of Apache women asked a federal judge in Washington, D.C., to halt a disputed land exchange at the center of a long battle over plans to build a huge copper mine at Oak Flat.
It’s the fourth lawsuit that seeks to stop the U.S. Forest Service from signing over title to the site, held sacred by Apache peoples and culturally significant by other tribes, to Resolution Copper in exchange for other plots of environmentally sensitive land in Arizona.
The four women, who all have spiritual and cultural connections to the 2,200-acre campground in Tonto National Forest about 60 miles east of Phoenix, filed their suit in the U.S. District Court for the District of Columbia July 24. Nelson Mullins, a law firm based in Washington, D.C., and South Carolina, outlined the case, which asks Judge Timothy J. Kelly, an appointee of President Donald Trump, to stop the exchange until the plaintiffs can have their day in court.
The suit claims the exchange violates the Religious Freedom Restoration Act, the plaintiffs’ First Amendment-guaranteed religious rights protections and two environmental laws.
“So much has been taken from our people,” Sinetta Lopez, one of the plaintiffs, said in a statement that accompanies the filing. Being told that they should be content to hold their ceremonies at the San Carlos Apache reservation instead of their sacred place amounts to a misunderstanding of their practices, she said.
“It is the original place and has a special power and connection with the Ga’an (messengers between the Creator and humans) and the White Painted Woman or Changing Woman, the first matriarch of our people.” She said those connections are unique to Oak Flat.
The lawsuit also brought two new factors into play: a recent high court decision that affirms parental rights to direct their children’s religious education and references to Justice Neil Gorsuch’s blistering dissent to the Supreme Court’s refusal to hear Apache Stronghold’s case.
“(The court’s) decision to shuffle this case off our docket without a full airing is a grievous mistake — one with consequences that threaten to reverberate for generations,” Gorsuch wrote in May.
Resolution, which asked to become a party in the newest lawsuit, said the litigation was a “transparent attempt to relitigate issues that have already been decided by the courts that govern the project site.” And the federal government questioned the timing of the litigation and asked why it took so long for the women to come forward with their religious objections.
Women: ‘Plan To Destroy Oak Flat Will Devastate Me And My People’
Traditionally in Indian Country, women are given the responsibility to pass cultural teachings to the next generation. “The roles that American Indian and Alaska Native women serve — including matriarchs, life bearers, cultural teachers, artists, storytellers, homemakers, healers, writers and mentors — is profound,” said Cheyenne and Arapaho writer Montoya A Whiteman. “The strength, knowledge, spirit, ingenuity and beauty of past generations are in each of us.”
Apache people are no exception. The women asking the court to halt the exchange each issued personal statements about what Oak Flat meant to them spiritually, how they pass religious and cultural teachings to their own children and why the site should be preserved.
Angela Kinsey said her family regularly traveled to Oak Flat for acorn picking, gathering medicinal plants and ceremonies.
“To me, Oak Flat is home,” she said. “It is our religious home. You can’t recreate what is there.”
Nomie Brown said her grandfather’s illness was healed after visiting Oak Flat and receiving blessings and prayers. Brown, 21, held her Sunrise Dance ceremony at the site in 2020.
She said if she ever has children of her own, passing on Apache faith and traditions would require experiencing Oak Flat and its direct connection to the Creator.
“If the government’s plan to destroy Oak Flat goes through, it would be devastating to my people and to me specifically,” Brown said. “(It’s) not only a place where I practice my faith, but a part of me and of all Apaches would be gone.”
Lopez said she wanted her 11-year-old daughter to have the same opportunity to practice Apache religion as her older daughter, 21-year-old Gouyen Brown, another plaintiff in the suit. Lopez said her younger daughter, who suffered from Graves disease, also was healed by the waters at Oak Flat.
“If Oak Flat is destroyed, I will be unable to pass on my faith on to my daughters or raise them with the ceremonies and spiritual experiences that are central to our Apache religion,” Lopez said.
Religious Rights And Water Clash With The Thirst For Copper
For more than two decades, Oak Flat Campground, known to Apaches as Chi’chil Biłdagoteel, “the place where the Emory oak grows,” has been ground zero in a battle over Native religious rights on public lands and to preserve one of Arizona’s most scarce commodities, a working wetland. The campground and riparian zone lie over one of the nation’s largest remaining bodies of copper.
Resolution said the site has the potential to become one of America’s biggest copper mines. A spokesperson for the company said the mine would contribute $1 billion annually to the state economy and provide thousands of jobs in the Copper Triangle. The spokesperson also said that significant consultation and review of the project has led to major changes in the plan to preserve and reduce potential impacts on “tribal, social, environmental, and cultural interests.”
Tribes, environmentalists and their allies have been fighting to prevent Oak Flat from being given to Resolution Copper in the exchange. The company had pursued the land with the Forest Service for about 10 years before it was attached to a defense bill in December 2014 by a group of lawmakers led by the late Sen. John McCain.
To obtain the copper ore, Resolution, which is owned by multinational firms Rio Tinto and BHP, will use a method known as block cave mining in which tunnels are drilled beneath the ore body, and then collapsed, leaving the ore to be moved to a crushing facility. Eventually, the ground will subside, leaving behind a crater about 1,000 feet deep and nearly 2 miles across where Oak Flat and its religious and environmental significance now stand.
Grassroots group Apache Stronghold filed a lawsuit in January 2021 in federal court to stop the land swap, citing religious rights guarantees under the First Amendment and the Religious Freedom Restoration Act. The Becket Fund for Religious Liberty, a religious freedom nonprofit law firm, accepted the case and, along with a group of private attorneys and law professors, has represented Apache Stronghold, which includes Apache and other Native peoples and their allies.
The San Carlos Apache Tribe and a consortium of environmentalists and Arizona tribes filed their own suits. Those two lawsuits were placed on hold pending the issuance of the new EIS.
The Biden administration rescinded the environmental impact statement in March 2021 for further consultation with tribes. The Forest Service announced a consultation concluded in 2023. Resolution was granted permission to join the lawsuit in 2023.
In 2024, the 9th U.S. Circuit Court of Appeals ruled against Apache Stronghold in a 6-5 decision. That fall, the group appealed to the U.S. Supreme Court.
The Forest Service’s announcement in April that the process would move forward again set off a flurry of court filings to stop or at least put the move on hold, which opened up a 60-day period beginning June 20, when the new EIS was filed, within which the land exchange could take place.
Apache Stronghold won a temporary halt to the proceedings until the high court either decided not to take the case or issued a decision.
The Supreme Court turned Apache Stronghold down in May. Apache Stronghold in turn has asked the high court to reconsider its request to have the case heard.
On June 9, U.S. District Court Judge Dominic W. Lanza barred the Forest Service from completing the land exchange until Aug. 19, the required 60 days after the new EIS was issued, to give parties from the other two lawsuits sufficient time to review the environmental impact statement and revive their litigation.
The tribe and environmentalists jointly asked Lanza to halt the exchange until their two lawsuits have run their course. Lanza will hear arguments Aug. 6.
Feds, Resolution Question Why The Women Waited So Long
The federal government asked why it took the group so long to file a suit. “Plaintiffs waited to file their motion for more than three months after Federal Defendants provided public notice of their intent to publish the Final Environmental Impact Statement (“FEIS”) for the Resolution Copper Mine Project,” the administration’s attorneys argued.
They also asked that the case be transferred to the Arizona district court, where other Oak Flat cases have been adjudicated.
Resolution said that federal courts have all sided with the government and the copper mine to allow the project to move forward.
“It is time that plaintiffs stop attempting to use the courts to delay a project that was mandated by a bipartisan Act of Congress more than a decade ago, supported by three presidential administrations, and has been upheld under settled law by courts at every level,” the spokesperson said.
The women’s attorneys said the issue needed a fresh review in light of Gorsuch’s statement.
“The federal government’s participation in the intentional and needless destruction of an irreplaceable Native American sacred site violates multiple federal laws and the U.S. Constitution,” a spokesperson for law firm Nelson Mullins told The Arizona Republic. “As Justices Gorsuch and Clarence Thomas recently observed, it would be a grievous mistake’ to allow this to occur ‘without a full airing’ of the important legal issues at stake; we hope Judge Kelly will agree.”
Lopez said the threat to Oak Flat is a threat to her ability to practice Apache religion and pass her religion to her daughters. “This is one of the few sacred places we have left that is still alive,” she said.
“Discounting the power of that place is like saying to Christians that there isn’t anything unique or special about the Church of the Holy Sepulcher or the places Jesus walked.
“We wouldn’t let those places be turned into copper mines.”
Debra Krol reports on Indigenous communities at the confluence of climate, culture and commerce in Arizona and the Intermountain West. Reach Krol at debra.krol@azcentral.com. Follow her on X, formerly known as Twitter, @debkrol and on Bluesky at @debkrol.bsky.social.
