Above photo: Apache Stronghold presents appeal to the Supreme Court on September 11, 2024.
After a two-month pilgrimage across the nation, Apache Stronghold formally presented its appeal to the U.S. Supreme Court on Wednesday in a final bid to stop a massive copper mine from obliterating one of the Apache peoples’ most sacred sites.
The high court was the last hope for the group after the full 29-justice 9th U.S. Circuit Court of Appeals refused to review the case. Opponents of the mine say the case will be a test of how the court and the government view the religious rights of Indigenous people.
Apache Stronghold in April asked the full Ninth Circuit panel to review its lawsuit against the U.S. and Resolution Copper. That move followed an opinion issued by a panel of 11 appeals court judges that ruled narrowly against Apache Stronghold in March, about a year after oral arguments.
The high court must first agree to consider the case. A spokesperson for Becket, the law firm representing Apache Stronghold, said the court briefs should be filed in about 30 days. After that, justices will discuss the case and decide whether to take it. The spokesperson said a decision could come as soon as late December or early January 2025.
On the steps of the Supreme Court’s building in Washington, D.C., Wednesday morning, Apache Stronghold leader Wendsler Nosie said all tribal nations facing similar issues need to come together.
“Where are you going as an individual, and where are you going as a collective?” he said.
Nosie said that the multitribal effort to remove four dams on the Klamath River on the California-Oregon border was an example of what can happen when people come together to advocate for their rights.
“It’s been a long fight,” he said.
He also noted the effort of the Modoc Tribe and Klamath Tribes to save their sucker fish, the c’waam and koptu, from extinction.
“Part of their mythology just like ours is that if they die we die,” Nosie said.
Two-decade struggle to preserve Oak Flat, Apache religious rights
Oak Flat, or Chi’chil Biłdagoteel, “the place where the Emory oak grows,” is at the heart of a struggle now entering its third decade.
In December 2014, Congress authorized the U.S. Forest Service to trade the 2,200-acre site, currently a campground about 60 miles east of Phoenix, for parcels of environmentally sensitive private land owned by Resolution Copper, a subsidiary of British-Australian mining companies Rio Tinto and BHP.
To obtain the copper ore, Resolution 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 stands.
The U.S. Forest Service published the final environmental impact statement and draft decision for the copper mine and land swap five days before the end of the Trump administration in January 2021. That set off a 60-day clock during which the land deal could have been finalized.
Apache Stronghold filed its 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. Becket Law, 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 Biden administration rescinded the environmental impact statement in March 2021 for further consultation with tribes. That consultation is ongoing.
Resolution was granted permission to join the lawsuit in 2023.
The company issued a statement after the appeal was delivered, asserting that the case “does not present any question worthy of Supreme Court review, as the Ninth Circuit simply applied well-established Supreme Court precedent.”
“This case is about the government’s right to pursue national interests with its own land — an unremarkable and longstanding proposition that the Supreme Court and other courts have consistently reaffirmed,” the spokesperson said. The mine would bring jobs and resources to the area, he said, and Resolution would continue to talk with local tribes and communities to shape the project.
Nosie pointed out other tribes’ struggles to preserve cultural and sacred sites that he said don’t receive the level of attention as Oak Flat.
Some of those include Sáttítla, a group of sites in the Medicine Lake Highlands in Northern California under threat from geothermal plants; Thacker Pass, Nevada, where tribes lost the battle to prevent lithium mines from impacting their sites; the continuing effort by the Bishop, Lone Pine and Big Pine Paiute tribes in the Owens Valley to preserve their lands, fight off even more lithium mines and win back the water lost to the greed of Los Angeles water brokers; and the battle to save wild rice in the Great Lakes region.
New supporters come forward: ‘Save and preserve Oak Flat’
In addition to religious leaders, environmentalists and tribes, Apache Stronghold gained a new group of supporters. The 16,000-member SEIU Workers United Southern Region unanimously approved a resolution supporting Apache religious freedom and the protection of sacred lands such as Oak Flat during their convention in June.
Wendsler Nosie, head of Apache Stronghold, has long said that prayer was the key to preserving Oak Flat. At each stop during the “prayer journey” from the Lummi Nation in northwestern Washington state to Washington, D.C., the group was met by religious leaders and elders from many faiths. Tribal elders and cultural practitioners came out to pray and speak about tribal rights.
In Los Angeles, the Costanoan Rumsen Carmel Tribe and other local tribes offered prayer, song, fresh vegetables and medicine plants for the journey.
Catholics welcomed the group in St. Louis. The Indigenous Environmental Network hosted Apache Stronghold during a climate change conference on Cherokee Nation land in Oklahoma.
Apache Stronghold also stopped to pray in Montgomery, Alabama, the birthplace of the civil rights movement. The Episcopal Church of the Good Shepherd hosted Nosie and other Apache Stronghold members for song, prayer and talk.
Mennonite churches hosted the group in several sites in the mid-Atlantic before Apache Stronghold reached the District of Columbia Sunday.
Legal expert weighs in on Native religious rights
Angela R. Riley, a law professor and director of the University of California, Los Angeles School of Law’s Native Nations Law and Policy Center, attended the 9th Circuit’s en banc hearing in March 2023. During a webinar on the case, Riley, a member of the Citizen Potawatomi Nation, said it goes without debate that Oak Flat will be “utterly, completely and permanently destroyed” after the mine is played out in its 50-year lifespan. Religious ceremonies will no longer be able to happen, she said.
But, she said, “it was remarkable to hear the United States argue as our trustee for American Indian tribes, that what it’s doing here…not only doesn’t violate the Constitution but it has no trust obligation to act otherwise.”
“The reality is that Indian religious freedom is not protected in this country,” Riley said. “The Supreme Court has failed to protect Indian religious freedom, and in fact, has ruled time and time again that the First Amendment doesn’t protect American Indian religions.”
Although the Supreme Court has become more solicitous of religion over the past decade to protect the religious freedom of corporations, organizations or individuals, Riley said, “We are seeing virtually no examples where either the First Amendment or the RFRA are being used to protect the religious freedom of Native people.”Apache Stronghold is raising these issues absolutely on the nose.”
Nosie said “Activate your communities, your peers, your relatives. Bring them to the circle. Normalize this.” He advised people to write statements and petitions and to involve their local governments.
“Get them to write their petitions, and get their local governments activated.” Take these steps to ensure that our seven generations have a chance at clean air, clean water and to learn our culture and traditions and keep those things alive and well.”