'The fight is here and now': Sacred site debate returns to nation's capital amid familiar challenges

Thursday, March 12, 2020  

WASHINGTON, D.C. -- Leaders of the San Carlos Apache Tribe and their allies returned to the U.S. Capitol this week to draw attention to long-running efforts to protect a sacred site from development. They faced familiar challenges, cloaked in new fears of the day.

Oak Flat is a sacred place in Arizona where the Apache people go to pray, hold ceremonies and gather food. It's being threatened by plans for the one of the world's largest copper mines.

"What they are trying to do is to come on Apache territory, our ancestral Apache homeland, and destroy the entire area for a mining corporation," Naelyn Pike, a young Apache leader, said in front of the halls of the U.S. Congress on Wednesday afternoon.

But since Oak Flat is currently managed by the U.S. government, it's not up to the Apache people to decide what happens in their homeland. Under a provision of federal law that remains contested to this day, the land is slated to be transferred to a foreign corporation for the mining operation.

"We have to stand up, we have to come together, we have to make those moral decisions," said Wendsler Nosie Sr., grandfather to Naelyn and a founder of the Apache Stronghold, a movement authorized by their tribe to protect Oak Flat from encroachments.

"We have to wake up these people," Nosie, a former chairman of his tribe, said in reference to the lawmakers who make decisions affecting Indian Country and the American public.

Rep. Jesús "Chuy" García (D-Illinois) is already awake. Though he wasn't a member of Congress when the land transfer was inserted into the National Defense Authorization Act (NDAA) despite its lack of connection to U.S. defense matters, he knows it was wrong to take such a significant action without full and open debate.

"It is shameful that in the year 2020, our government is about to inflict one more instance of great harm to the original inhabitants of this land, to the Apache nation and to the people who consider Oak Flat sacred land that should be protected," said García, who is in his first term in the U.S. House of Representatives.

Not everyone is in the same camp. As the Apache delegation prepared to testify before the House Subcommittee for Indigenous Peoples of the United States about the dangers of the mining development, they learned that Republican members of Congress were trying to derail their appearance, citing the coronavirus among their concerns.

But when GOP lawmakers couldn't win on that front, they decided not to show up to the hearing on Thursday morning. They accused Democrats of going forward without ensuring that all sides were represented in the nation's capital.

"Witnesses, including a tribal member in support of responsible natural resource development in this area, are incapable to attend due to coronavirus restrictions and quarantine," Rep. Rob Bishop (R-Utah), the highest-ranking Republican on the House Committee on Natural Resources, said in explaining the GOP boycott..

Rep. Paul Gosar (R-Arizona), who previously described Native people as "wards" of the government, was particularly upset with the hearing, though the boycott wasn't much of a stretch for him. That's because he has placed himself in self-quarantine after coming into contact with a person diagnosed with the Novel Coronavirus (COVID-19).

"Democrats are holding a hearing which directly impacts my district and Arizona knowing I am unable to attend due to the Wuhan virus quarantine," Gosar said on social media, utilizing a term for the disease that is not accepted among health experts. "This is a shameful abdication of their responsibility to hold hearings with relevant stakeholders."

Gosar tried to get the hearing postponed due to his inability to be present and due to complaints about the witness list, according to people familiar with the behind the scenes rumblings on Capitol Hill. Rep. Deb Haaland (D-New Mexico), who is one of the first two Native women in Congress, offered a response on Thursday morning.

"'I'm sorry I wasn't there when this bill was finagled into the NDAA," said Haaland, a citizen of the Pueblo of Laguna whose father served in the military. "I'm sorry that I didn't have a voice in congress when it was important."

"When they do things like that, Native people, they are not heard either," Haaland added. "That side is never heard."

According to Republicans, some Apache people in Arizona support the proposed Resolution Copper mine. They tried to enlist one of them to testify, possibly via video conference, people familiar with the situation said.

But the Indian nation to which the person belongs sent a strong message to the committee. The White Mountain Apache Tribe continues to oppose development at sacred Oak Flat, Chairwoman Gwendena Lee-Gatewood said in a letter to lawmakers, including the Republicans who boycotted the hearing, and continues to oppose the land transfer that was inserted in the NDAA without consultation or consent.

"A letter went to Washington DC regarding our support for San Carlos Apache Tribe and the fact that Oak Flat has ancestral ties to the White Mountain Apache people," Lee-Gatewood said on social media. "It is unfortunate if any one would disagree with that."

Despite the show of unity, the Apache people face an uphill battle when it comes to protecting Oak Flat. The Trump administration, in accordance with the NDAA, is moving forward with the land transfer whether the tribes like it or not.

An environmental impact statement (EIS) for the proposed Resolution Copper mine was released last August. Six public hearings took place in September and October, and comments were accepted through early November.

The U.S. Forest Service, which currently manages the land where the development is to be located, anticipates further action on the EIS later this year. Section 3003 of the NDAA requires the federal land to be transferred to the foreign corporation, regardless of the way tribes and the public view the proposal. The provision uses the word "shall" -- meaning the transfer is mandatory.

"The Forest Service anticipates releasing the final EIS in winter 2020," the agency states. "The Land Exchange will be fully executed no later than 60 days after the release of the final EIS."

As for the mining itself, a record of decision (ROD) also has to be issued before development can occur. The process is open to administrative appeals, the agency states on the Resolution Copper project website.

"Upon completion of the objection process, the Forest Service anticipates issuing a final ROD in 2021," the website reads.

To stop the land transfer, a bipartisan group of lawmakers has introduced H.R.665, the Save Oak Flat Act. The bill repeals Section 3003 of the Carl Levin and Howard P. “Buck” McKeon National Defense Authorization Act for Fiscal Year 2015, which became law shortly before the Christmas holiday at the time, as lawmakers were trying to get out the door and back home.

"I was struck by the other side saying you should postpone this," said Rep. Raúl M. Grijalva, the sponsor of the Save Oak Flat Act, "because other voices have to be heard that are in support of responsible development there."

"The voices of the tribal folks that are here today, other experts and people from that community, it's important to hear their voices," said Grijalva, who serves as the chairman of the House Committee on Natural Resources. "They weren't heard in the middle of the night when it was stuck in that legislation. There was no transparency. There was no honesty. There was no process."

"It was just done in the behest of a major multi-national mining company," added Grijalva, who noted that efforts to pass the land swap as a stand-alone bill were rejected in the House of Representatives before supporters like Gosar and the late Sen. John McCain (R-Arizona) set their sights on the defense measure, which is considered a must-pass piece of legislation due to its overall subject matter. "That's why it was done."

With Democrats in control of the House, a bipartisan bill like H.R.665 stands a greater chance of passage than in prior sessions. But the U.S. Senate, which is in Republican hands, is less likely to take it up. S.173, the companion version sponsored by Sen. Bernie Sanders (I-Vermont), a Democratic candidate for president, lacks GOP support at this time.

Resolution Copper is a joint venture of Rio Tinto and BHP Billiton. The two corporations are both based in the United Kingdom and in Australia.

The foreign-held corporations say the copper mine -- despite its large scale -- can be operated in "ways that are safe, protect the natural surroundings and the area's unique cultural heritage and create sustainable benefits for the community."

Upon release of the draft EIS last August, Rio Tinto executive Arnaud Soirat said: “This an important milestone for Resolution, with the future development of the project being shaped by years of engagement with the local community and extensive independent study by the US Forest Service."

In addition to using large amounts of water, the mining operation would result in the creation of a a huge crater, about 1.8 miles wide and more than 1,000 feet deep, according to the EIS. That's enough to cover the U.S. Capitol and most of the National Mall, all the way to the Washington Monument.

The Resolution Copper mine itself would go deep into the earth, about 7,000 miles below. Overall, it would result in an "estimated surface disturbance of 6,951 acres" in Arizona -- approximately 11 square miles -- according to the Forest Service.

"I am not anti-mining by any stretch, but this is the worst mining project I have ever encountered," Steven Emerman, an expert on groundwater and mining issues, told the House Subcommittee for Indigenous Peoples of the United States.

$cp The Irreparable Environmental and Cultural Impacts of the Proposed Resolution Copper Mining Operation (March 12, 2020)