Becket Fund for Religious Liberty: Protect Oak Flat
‘It’s who we are’: Apache people take fight for sacred site to federal court
Wednesday, October 20, 2021
Indianz.Com

The Biden administration is facing a major test of its commitment to sacred sites as citizens of the San Carlos Apache Tribe head to court in a long-running battle to protect one of their most important places.

Tribal citizens have been going to Oak Flat since time immemorial to pray, hold ceremonies, gather food and engage in other religious activities. The site, known as Chi’chil Biłdagoteel in the Apache language, plays a central role in the health and well-being of the San Carlos people.

“We Apache — it’s who we are,” San Carlos citizen Vanessa Nosie said on Tuesday in explaining the importance of protecting the land. “Our religion, our identity. It makes us who we are.”

But Oak Flat, which is located on federal forest land east of Phoenix, will be destroyed — permanently, Apache people point out — by a huge copper mine. Nosie said the proposed development is slated to be so large that it will leave a crater 7,000 feet below the surface of the place where her daughters took part in coming-of-age ceremonies.

“You can stick the Eiffel Tower inside the crater,” Nosie told students at a religious school in California.

Note: Video feed from the 9th Circuit Court of Appeals will go live at around 9:30am Pacific on October 22, 2021. The Oak Flat case, known as Apache Stronghold v. USA, is the sixth and final case to be heard during the session, at approximately 11:10am Pacific.

Nosie spoke as the Apache Stronghold, the group authorized by the tribe to advocate for Oak Flat, continued its journey from Arizona to California for another important event. On Friday, the 9th Circuit Court of Appeals will hear arguments in a dispute that tribal citizens see as a warning sign for all Americans who believe in protecting sacred spaces.

“If one religion is attacked in this country, then all religions are attacked in this country,” Naelyn Pike, a young Apache leader, said at St. Ignatius College Preparatory in San Francisco on Tuesday.

The hearing, which is taking place at the federal courthouse in San Francisco, is part of a lawsuit that the Apache Stronghold filed against the federal government in early January, when Republican Donald Trump was still in office. Coming off the loss of the presidential election, his administration was rushing to transfer the land at Oak Flat to the foreign companies that plan to develop the Resolution Copper mine.

Despite the imminent threat, a federal judge in February refused to stop the pending land transfer. But the Apache people and their allies received a respite from new Democratic President Joe Biden, who ran on a campaign promise to ensure tribal nations are at the table when it comes to actions affecting their interests.

Indianz.Com Video: Save Oak Flat | Naelyn Pike | US Capitol

On March 1, the Biden administration put a stop to the environmental review process for the Oak Flat transfer. San Carlos Apache Chairman Terry Rambler called it the “right move” by the Department of Agriculture, which oversees the U.S. Forest Service, the federal agency in charge of the nation’s forest lands.

Even then, government attorneys have stuck to a familiar line of thought whenever tribes and their citizens try to protect sacred areas now managed by the United States. In a recent court filing, they reiterated who really is in charge of what happens at Oak Flat — and it’s not the Apache people.

“The government’s disposition of its own property cannot create a substantial burden on appellant’s members’ religious exercise,” the Department of Justice wrote on March 1, on the same day the Biden administration withdrew the final environmental impact statement (FEIS) and record of decision (ROD) for the copper project.

And although the Forest Service has reinitiated consultation with the San Carlos Apache Tribe and other Indian nations, government attorneys have no idea when talks will be complete, leaving people like Nosie and Pike in limbo for an indefinite amount of time.

“At this time, the United States cannot estimate how long the consultation process will take,” the March 1 filing stated, a copy of which was posted by Turtle Talk.

Oak Flat
Oak Flat is located within the boundaries of the Tonto National Forest in Arizona. Photo by Russ McSpadden / Courtesy Center for Biological Diversity

As the fight continues in the judicial and executive branches of the U.S. government, the tribe’s allies on Capitol Hill are trying to find a permanent solution. Democrats in the U.S. House of Representatives have advanced legislation to permanently protect Oak Flat for future generations.

“We’re calling on Congress, because this decision affects everybody,” Wendsler Nosie Sr., a former chairman of the San Carlos Apache Tribe, said of the legislation, known as the Save Oak Flat Act.

“If they make the wrong choice, it will be devastating for those alive now and those yet to be born,” Nosie added. “It’s time that the American people stand up and hold our leaders accountable to do the right thing.”

John Mendez and Wendsler Nosie Sr
Rev. John Mendez, left, and Dr. Wendsler Nosie Sr. are seen at Oak Flat in Arizona on October 10, 2021. Photo courtesy Apache Stronghold

Republican lawmakers, including those from Arizona, are vehemently opposed to the Save Oak Flat Act and its inclusion in the federal government’s budget reconciliation. So while the bill can pass the House, which is under Democratic control, chances are far slimmer in the U.S. Senate, where the parties are more evenly divided.

Chi’chil Biłdagoteel has been a sacred site for Indigenous people since time immemorial,” said Camilla Simon, executive director of Hispanics Enjoying Camping, Hunting and the Outdoors, one of the many allies in the fight. “Copper mining in this area would have caused irreparable harm to the lands and waters of the region and would have left another toxic legacy threatening the health and well-being of nearby communities.”

The Apache Stronghold caravan began its journey on October 9 at Oak Flat. The group visited several Indian nations in Arizona before arriving in southern California on October 16.

A prayer rally is being held on Wednesday afternoon at the San Francisco Federal Building. Another day of prayer is taking place on Thursday in the Bay Area city. Some of the stops, including the one at St. Ignatius College Preparatory, have been broadcast in the Protect Oak Flat club on Clubhouse, an audio-based social media platform.

The hearing in Apache Stronghold v. USA, No. 21-15295, is taking place during the Friday morning session of the 9th Circuit Court of Appeals in San Francisco. The morning session starts at 9:30am Pacific, with the Oak Flat case the last to be heard. It’s anticipated that the hearing will start around 11:10am Pacific.

The 9th Circuit hears cases affecting hundreds of tribes in several western states so its decisions carry major impact. And while judges on the court are often sympathetic to Indian causes, their record on sacred sites is negative.

One significant case resulted in the federal government approving the use of reclaimed wastewater in the sacred San Francisco Peaks, also on federal forest land in Arizona. The decision in Navajo Nation v. U.S. Forest Service is repeatedly cited in the government’s briefs in the Oak Flat lawsuit.

Related Stories
House Committee on Natural Resources markup on budget reconciliation (September 2, 2021)
Cronkite News: Religious groups join fight to protect sacred Apache site (May 13, 2021)
Cronkite News: Bill to protect sacred Apache site debated on Capitol Hill (May 6, 2021)
House committee markup on Save Oak Flat Act and Alaska Native Tribal Health Consortium Land Transfer Act (April 28, 2021)
Legislative Hearing on H.R.1884, the Save Oak Flat Act (April 13, 2021)
Bill to permanently protect sacred Apache site up for first hearing (April 8, 2021)
Advisory Council on Historic Preservation letter on sacred Apache site (March 29, 2021)
Bill introduced to protect sacred Apache site from development (March 15, 2021)
Cronkite News: Biden administration puts halt to mine at sacred Apache site (March 4, 2021)
San Carlos Apache Tribe cheers ‘right move’ to protect sacred site from copper mine (March 1, 2021)
Cronkite News: Deb Haaland shares her vision for Interior Department (March 1, 2021)
Cronkite News: Judge won’t stop copper mine on sacred Apache site (February 15, 2021)
Cronkite News: Apache Stronghold fights to protect sacred site from foreign mine (February 9, 2021)
Cronkite News: Republican pardoned in connection with Oak Flat land deal (January 21, 2021)