Apache Stronghold makes 'spiritual convoy' to San Francisco to argue against Oak Flat mine

Silhouetted in front of a fire fed by mesquite wood on a chilly October evening, Kevin Stevens raised his gourd rattle and began to sing as Wendsler Nosie, daughters Vanessa Nosie and Lian Bighorse, and other family and friends stood in respect. 

Stevens, a Pee-Posh who is a member of the Gila River Indian Community, offered prayers and blessings to a group of Native and non-Native people as they continued a "spiritual convoy" from Oak Flat, a site held sacred by Apache peoples about 60 miles east of Phoenix, to a federal courtroom in San Francisco. 

On Friday, the 9th Circuit Court of Appeals heard arguments by Apache Stronghold, a grassroots group that sued the federal government in January to stop a handover of one of the Apache peoples' most sacred sites to a mining company.

The group's attorney argued that the mine would obliterate Oak Flat and irrevocably deprive Apaches of a sacred site, a church that has been a center of worship since long before the birth of the United States. And, he said, the destruction of the site would imperil the Apaches' religion and deprive them of their First Amendment rights of the free exercise of their religious beliefs.

Luke Goodrich, vice president and senior counsel for religious liberty law firm Becket Law, said he found the government's argument inconsistent.

"The government says that if they fenced off Oak Flat and prosecuted the Apaches for trespassing there, that would be a substantial burden (to their constitutionally guaranteed religious practice)," he said.

But, Goodrich said, according to the Biden administration's attorney, "if they fenced off Oak Flat and blast it to oblivion so they can never go there again, that that's not a substantial burden."

The government's attorney argued, among other points, that federal law outweighs the U.S.'s trust obligation to the tribe. 

The hearing was the latest chapter in a 17-year-old effort by Indigenous peoples and their allies to preserve the site and prevent it from becoming a 2-mile-long crater.

Oak Flat:New estimate of Oak Flat mine's water consumption fuels opposition as lawsuit, legislation advance

Battleground: Oak Flat

Nosie, other Native people, environmentalists and recreational enthusiasts have been battling to prevent a giant copper mine project from obliterating Oak Flat, a culturally significant place for many Southwestern tribes.

The mine would be built and operated by Resolution Copper, which is owned by British-Australian mining companies Rio Tinto and BHP. 

Resolution attempted to obtain title to the 2,200-acre site, currently part of Tonto National Forest, for 10 years by working to overturn a mining withdrawal enacted during the Eisenhower administration. Nosie, the former chairman of the San Carlos Apache Tribe, had led the opposition to any change in Oak Flat’s status since the project was first proposed in 2004.

The mining company offered other environmentally sensitive land in exchange, and the company has said that the project would bring about 3,700 jobs and $1 billion annually to Arizona’s economy. The land swap was ultimately authorized by Congress in December 2014.

To obtain the copper ore, Resolution plans to use a method known as block cave mining, in which the ground beneath the ore body will be excavated. The tunnels are then collapsed and the ore is transported through another tunnel to a crushing facility. Eventually, the ground under Oak Flat will subside, leaving behind a crater about 1,000 feet deep and nearly 2 miles across. 

The U.S. Forest Service published the final environmental impact statement and draft decision for the copper mine and land swap on Jan. 15, five days before the end of the Trump administration. That move set off a 60-day clock during which the land swap could be finalized.  

On March 1, the Forest Service withdrew the statement and said it would reinitiate consultations with tribes.

Sacred spaces:A place of prayer faces obliteration by a copper mine

Opponents claim loss of water, religious practice, land

The mine’s opponents fear more than the loss of another Native American worship site. They are concerned about contaminating or disrupting groundwater in the area.

A recent study found that Resolution’s own figures estimated the mine, over its estimated 40-year lifespan, would consume the same amount of water required by a city of 140,000 people. 

The tailings left over from mining also pose a hazard, they say. The wet tailings would be dumped behind a 60-story-high dam in Skunk Camp, a natural wash that drains into the Gila River. Opponents fear that if the dam breaks, billions of gallons of toxic sludge would end up in the river.

Tribes also say the loss of the 2,200-acre Oak Flat, or Chí’chil Biłdagoteel, would cause the destruction of Emory oaks, which provide a staple food for many Southwestern tribes, as well as the loss of medicinal plants and cultural artifacts. Recreationalists would lose a popular area as well. And environmentalists say that the mine would destroy one of Arizona’s rare riparian areas that supports many species.

After the Forest Service released the environmental impact statement, Apache Stronghold, headed by Nosie, filed suit to stop the swap. Their stance is that destroying Oak Flat would violate their First Amendment religious rights. A U.S. District Court judge ruled against the group, writing that Nosie’s group was not a tribe and had no standing to bring the lawsuit.

Friday's hearing was an appeal of that ruling.

Sacred spaces:Indigenous people find legal, cultural barriers to protect areas off tribal lands

Hearing: "All people of faith should be concerned"

Goodrich said after the 40-minute hearing that he felt people would be more aware of the administration's stance on protecting religious rights. 

"I thought today's hearing was clarifying, particularly in how broad and unbounded the government's argument was that it has discretion any time to take any property to destroy religious sites and the courts and the Constitution have nothing to say about it," he said.

One judge in the three-judge panel noted during the hearing that developing the required environmental impact statement was an "exercise in nonsense," since the legislation mandated the land deal. The government argued that the impact statement was a requirement of the law.  

Another judge asked Goodrich if the Oak Flat land swap is overturned, would that mean no government projects with Native American religious ties could ever go forward?

Goodrich said no, because, unlike earlier court decisions, the Oak Flat case involves the actual destruction of a site, as opposed to damaging a site. 

He said Americans and particularly Americans of faith should be very concerned over the government's stance that it has complete authority over all federal lands to destroy any sacred site.

"Because it's not just Apache Stronghold and Western Apaches and their practices that are at issue today," Goodrich said. "The government's position threatens all people of faith."

He's optimistic the court will rule in Apache Stronghold's favor. The court could hand down its ruling by year's end or early in 2022.

Pee-Posh send prayers and menudo

The Oct. 14 event was a stop on Apache Stronghold's 12-day spiritual journey to San Francisco. The evening prayer session and dinner, held at a homestead about 15 miles west of Phoenix at the far western end of the Gila River community was Nosie’s third stop of the day.

He had previously spoken to members of the Salt River Pima-Maricopa Indian Community east of Scottsdale and to the student body of Brophy Preparatory School, a Catholic high school in central Phoenix.

Yet the 62-year-old San Carlos Apache man showed no signs of slowing down on a rapidly chilling Thursday evening made colder by verdant farm fields surrounding the cluster of family homes.

Indigenous leader:Apache activist Wendsler Nosie followed a lifelong path to mine protest

After the song cycle concluded, Nosie and the rest of the group in the “spiritual convoy” smudged themselves with smoke from the arrowweed bush, used by Pee-Posh people for blessings and prayer. The travelers were treated to a meal of menudo and other dishes.

“It’s a holy and sacred journey that we're on because we're facing what is the greatest evil of this earth in America, destroying everything that is life and everything that God has given the world,” Nosie said.

He said plants and animals will be destroyed after losing their water or through consuming contaminated water. Climatic changes in the region could also occur as heat from the blazingly hot 184-degree lower tunnel rises into the canyon.

Baptist minister Rev. John Mendez was along on the journey. Mendez, the longtime pastor of the Emmanuel Baptist Church in Winston-Salem, North Carolina, has supported Nosie and Apache Stronghold’s struggle.

“There is one spirit that ties us all together,” said Mendez. “Wendsler’s struggle is my struggle.

“If America is to be saved,” Mendez said, “Native people will have to lead that struggle.”

Nosie said that in his travels, he’s found that everybody he encounters is concerned that the Earth will be sustained for all people, including people yet to come.

"So what I found is, we're all on the same page," he said. 

The group stopped at tribal communities, schools and colleges along the way, ending in San Francisco, where they held a prayer rally at Civic Center Plaza with members of the Poor People’s Campaign and other supporters.

Mendez said what’s happening at Oak Flat is an indirect assault on all religions.

“We have to defend what Wendsler and the Apaches are fighting for,” he said. “If they lose, we lose.”

Debra Krol reports on Indigenous communities at the confluence of climate, culture and commerce in Arizona and the Intermountain West. Reach Krol at debra.krol@azcentral.com. Follow her on Twitter at @debkrol. 

Coverage of Indigenous issues at the intersection of climate, culture and commerce is supported by the Catena Foundation.

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