By Kellan Oliver and Julisette Acosta

The Apache tribe is ancient and has generational roots in the Southwest United States, mostly in Arizona, Colorado, and New Mexico. The Apache People were nomadic, migrating across what is now the United States and Mexico. They have known Arizona and the surrounding area to be their home for centuries, perhaps going as far back as 1100 A.D. Oak Flat, Arizona, an area that is directly east of Phoenix, is a particularly important site for the Apache People because it has been home to spiritual and cultural Apache ceremonies since that time.

Oak Flat (Chi’chil Biłdagoteel), listed on the National Register of Historic Places, has been protected for decades due to its religious, cultural, and environmental significance. However, in December 2014, a provision hidden within the National Defense Authorization Act (NDAA) allowed for the transfer of this sacred land to Resolution Copper, a mining company primarily owned by Rio Tinto. This transfer paved the way for Resolution Copper’s plans to extract copper using a method called block caving, which would result in the destruction of Oak Flat, leaving behind a crater large enough to hold structures like the Eiffel Tower. The devastating impact would not only destroy natural landscapes but also irreplaceable cultural artifacts and religious sites.

In the decade following Congress’s decision to give this sacred land to a mining conglomerate, an Apache advocacy group, Apache Stronghold, has waged a legal battle to stop the transfer from happening. Represented by the Becket Fund for Religious Liberty and a cadre of legal scholars and attorneys, the Apache have seen their case wind through the federal courts, and RFI joined two friend-of-the-court briefs at different stages of the proceedings to support them. The Ninth Circuit ruled earlier this year that the land transfer is not subject to federal laws protecting religious freedom, such as the Religious Freedom Restoration Act (RFRA). But five judges dissented, writing that the court “tragically err[ed]” by refusing to protect Oak Flat. Apache Stronghold asked all 29 judges on the Ninth Circuit to rehear the case, but they refused. On September 11, 2024, Apache Stronghold filed an appeal with the U.S. Supreme Court, and RFI is now working on a friend of the court brief in their defense.  

As their lawyers filed the appeal inside the courthouse, Apache members and their supporters held a demonstration outside to garner support for their case. When asked what Oak Flat means to the Apache people, Gary McKinney, a member of the Apache Stronghold who attended the demonstration, responded, “It is a very sacred place. It is the second half to Mount Graham. It is a spiritual place that was here long before colonization. Oak Flat holds generational knowledge and wisdom.”

Quotes from the event illustrate the cultural and religious significance of Oak Flat to the Apache people. One speaker explained that “Oak Flat is where God touches the Earth.”  Another speaker, a young Apache woman, powerfully spoke on the significance of Oak Flat in her coming-of-age ceremony, stating that “Oak Flat is where I am going to become the White Painted Woman,” a ceremony that is both culturally and religiously significant to the Apache people, and would be destroyed by the land transfer.

Traditionally, the Apache people would travel to the Oak Flat area to gain contact with the Apache spirit of healing. Many important tribal events—healing rituals, spiritual rituals, and coming of age ceremonies—are held in the Oak Flat area. Most notably, a coming-of-age ceremony is traditionally held in the land in and around Oak Flat. In this ceremony, young Apache women transition into womanhood. It is called “The Sunrise Dance” or “The White Painted Woman Ceremony” in English. Oak Flat has been used by countless generations of Apache people for this ceremony and many others because it is the home of the spirit of healing in their culture. Additionally, the site was used as a burial ground for Apache tribes, only adding to its spiritual significance. This site is profoundly important to Apache spiritual practices, only underscoring the need to protect this land. In recent years, the Apache people have begun to conduct these ceremonies more often and more publicly.

All of the words spoken in support of the Apache people illustrate how significant the area is to their religious practices, highlighting the harmful consequences of the gross misinterpretation of the RFRA by the Ninth Circuit. Ripping Oak Flat away from the Apache people would permanently sever their connection to this land that is so sacred to them. Luke Goodrich, chief counsel on the case, stated at the event, “What the United States government is trying to do right now, what Resolution Copper is trying to do right now is sever that connection, literally and physically, of the Western Apache people to their land.” The Apache people have demonstrated that their religious practices would be destroyed without access to the land at Oak Flat.

The passage of the NDAA provision that enabled the transfer of native lands raises concerns about unethical lobbying and potential corruption, as it was supported by members of Congress who had close ties to mining interests. In light of Rio Tinto’s controversial destruction of ancient Indigenous rock shelters in Australia, this transfer has drawn international criticism, with Indigenous groups and their allies in the United States and abroad strongly opposing the destruction of Oak Flat. Apache and other groups have filed lawsuits, seeking to stop the transfer and protect the site, but the legal battles continue as the land remains under threat. This fight also reveals the broader implications of prioritizing economic interests over religious freedom, cultural preservation, and environmental stewardship, both nationally and globally.

In their lawsuit, Apache Stronghold is fighting for their fundamental right of religious freedom by securing the preservation of their sacred lands. There is no question that the Oak Flat area is extremely important to the Apache people’s culture and religious practices, but the en banc Ninth Circuit held that:

… a disposition of government real property does not impose a substantial burden on religious exercise when it has ‘no tendency to coerce individuals into acting contrary to their religious beliefs,’ does not ‘discriminate’ against religious adherents, does not ‘penalize’ them, and does not deny them ‘an equal share of the rights, benefits, and privileges enjoyed by other citizens.’

This is a gross misinterpretation of RFRA. The Court is essentially stating that for the Apache people to lose this sacred land at Oak Flat would not substantially burden their religious practices. Apache Stronghold has marshalled considerable evidence from the Supreme Court and courts of appeals countering this interpretation of RFRA and other federal laws.

In 1883 the U.S. government imposed the Code of Indian Offenses, which outlawed many of their religious practices, forcing them to conduct their ceremonies in secret or stop them altogether. However, in 1978 Congress passed the American Indian Religious Freedom Act, which protects Native American religious practices. The law protects Native Americans’ rights to access sacred lands, possess sacred objects, and worship through ceremonials. And then RFRA, signed into law in 1993, adds to these protections by further securing in federal law the religious freedom of all Americans. RFRA

Prohibits any agency, department, or official of the United States or any State (the government) from substantially burdening a person’s exercise of religion even if the burden results from a rule of general applicability, except that the government may burden a person’s exercise of religion only if it demonstrates that application of the burden to the person: (1) furthers a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.

The most relevant fact to this case, however, is an 1852 treaty between the Apache people and the U.S. government, promising peace and ending the hostilities between the Apache people and the American settlers. Article 9 states:

Relying confidently upon the justice and the liberality of the aforesaid government, and anxious to remove every possible cause that might disturb their peace and quiet, it is agreed by the aforesaid Apache’s that the government of the United States shall at its earliest convenience designate, settle, and adjust their territorial boundaries, and pass and execute in their territory such laws as may be deemed conducive to the prosperity and happiness of said Indians.

This country was founded on the idea of religious freedom for all. By transferring this land to a foreign mining company, the U.S. government is denying the Apache people this fundamental right. If this case were about a different kind of religious site, the ruling might be different. For instance, if a church and associated cemetery were “transferred” by the federal government to a foreign mining company, it would  immediately be recognizable as a violation of the congregation or parish’s religious liberty under RFRA. In the case of Oak Flat and the Apache people, RFRA unquestionably points to the same verdict. As Dr. Wendsler Nosie Sr., founder of Apache Stronghold said, “Today we stood up in court for that right, determined to stop those who think that our place of worship can be treated differently simply because it lacks four walls and a steeple.”

---

Kellan Oliver and Julisette Acosta are RFI interns.