The Arizona Apache tribe is fighting the federal government and copper producers in the Supreme Court, hoping to have their religious rights to sacred sites protected.
Apache Stronghold, a nonprofit that represents the tribe's interests, is working to protect Oak Flat, which the Apache call “a direct passage to the Creator and a place where sacred ceremonies can take place nowhere else.”
According to the petition filed in the high court, the government “has long protected Apache ceremonies there.”
“However, because copper was discovered beneath Oak Flat, the government decided to transfer the site to defendant Resolution Copper Co. for the construction of a mine that would completely destroy Oak Flat; engulf Oak Flat in a giant crater; and put an end forever to sacred Apache ceremonies.”
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Apaches at Oak Flat, a sacred site in Arizona. (Credit: Beckett Law)
Apache Stronghold argues that the Religious Freedom Restoration Act (RFRA) and the Religious Freedom Clause prohibit the government from doing so and is seeking to overturn the lower court's ruling.
“In two separate cases, by a combined 6-5 majority, the Ninth Circuit rejected both arguments. While the Court found that destroying Oak Flat would 'literally prevent' the Apaches from conducting their religious activities, it nevertheless concluded that doing so would not 'significantly burden' their religious activities under RFRA, relying on this Court's pre-RFRA decisions. Linn v. Northwest Indian Cemeteries Protective Association;” the petition states.
“And while the majority acknowledged that targeting only Oak Flat for destruction was 'clearly not of 'general applicability,'” it rejected the religious freedom argument for the same lack of substantial burden,” the ruling continues.
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“The meaning behind it is much larger when it comes to personal spirituality, connecting with Mother Earth and the Creator,” Noyes told Fox News Digital. (Credit: Beckett Law)
Oak Flat is a 6.7-square-mile sacred site east of Superior, Arizona, which the Apache claim contains a concentration of old-growth oak trees, sacred springs, burial grounds, and archaeological remains that attest to continuous use for the past 1,500 years.
Wensler Nosey of Fort Apache described the mountain as the Mount Sinai of their faith.
“That's where our ritual practices come from, and our identity of who we are, our continuity as humans, how we were created and put on this earth,” Nosey said in an interview with Fox News Digital. “When it comes to personal spirituality connected to Mother Earth and the Creator, the meaning behind it goes much deeper.”
“One example is the Sunrise Ceremony, a multi-day celebration marking an Apache girl's coming of age,” the lawsuit states.
“In preparation, the girl gathers plants from Oak Flat that are inhabited by the 'spirit of Chithil Bildagothir.' As she gathers, she speaks to the spirits of Oak Flat and gives thanks for their resources. Ibid. Her godmother dresses her in the 'essential paraphernalia of womanhood,' and the tribe gathers around her, singing, dancing, and praying.”
According to filings, a large copper deposit was discovered 4,500 to 7,000 feet below the surface of Oak Flat in 1995. Two major multinational mining companies, Rio Tinto and BHP, formed a joint venture called Resolution Copper to acquire the deposit. Between 2005 and 2013, supporters of Resolution Copper introduced at least 12 standalone bills to transfer Oak Flat to the company, but all were defeated.
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Apache Girls of Oak Flat (Credit: Getty Images/Becket Law)
In 2014, Republican Senators John McCain and Jeff Flake attached a land transfer bill to the National Defense Authorization Act (NDAA), authorizing the transfer of 2,422 acres of land, including Oak Flat, to Resolution Copper Corporation in exchange for approximately 5,344 acres of land scattered elsewhere.
The bill would revoke an executive order protecting Oak Flat from mining and direct the Secretary of Agriculture to prepare an Environmental Impact Statement (EIS) for the proposed mine.
Secretary of State Thomas J. Vilsack released the Environmental Impact Statement on January 15, 2021, which states that the mine would destroy Oak Flat.
Lawyers from Becket, a nonprofit religious freedom law firm that represents Apache Stronghold, argue that the government is trampling on their clients' religious freedom.
“They're effectively saying that when federal lands are administered by the government, there's an exception to RFRA that's a huge burden if the government makes it impossible to practice your religion, but that rule doesn't apply to federal lands,” explained Joe Davis, an attorney with the Becket Law Firm, in an interview with Fox News Digital.
“But there is absolutely no basis in the law enacted by Parliament to justify such an argument,” he said.
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“RFRA, on its face, applies to all federal laws and the enforcement of those laws, and it says that the use of land for religious purposes is a religious activity that the law is designed to protect,” he said.
The Supreme Court could decide to hear the case as early as October.
“Destroying and forgetting the birthplace of the Apache religion would be a flagrant violation of our nation's promise of religious freedom to people of all faiths,” said Luke Goodrich, vice president of Becket. “The Court should uphold its strong record of upholding religious freedom by ensuring that the Apache Nation can continue to worship at Oak Flat as it has done for centuries.”
