Indigenous Peoples and Human Rights

March 22, 2023

Apache Stronghold Defends Oak Flat in Federal Court

"We are giving Mother Earth our voice, to be heard." -- Wendsler Nosie

By Brenda Norrell 
Censored News

PASADENA, California -- Apache Wendsler Nosie said the arguments heard in the Ninth Circuit Court show the U.S. government's attempts of erasure, erasure of the people and their connection to the land, erasure of their right to pray in their sacred place at Oak Flat.

"This country is a corporate country. It is not even thinking about our children, the earth, the things that give us life," Nosie said after Tuesday's rehearing of the federal court case.

Nosie urged Native people to be part of the spiritual struggle. He said if their leaders only care about money, then they are on the wrong road, and that the spiritual road is the one to be on. He urged tribal leaders to tell people the truth.

"Now we know why Biden hasn't helped, anybody hasn't helped, because that is not their priority, of the people."

"So people, it is not over, it just made us stronger, tougher, and deeper into our prayer because we know we are fighting something evil."

Nosie thanked everyone for coming to hear the truth. He said this is the truth and truth is the reason the U.S. government is trying so hard to repress it.

"They are not going to repress our voice."

"We are giving Mother Earth our voice, to be heard."

The U.S. has the war powers, but he said, "We have the heart."

Naelyn Pike, Apache Stronghold

Naelyn Pike, Apache, urged everyone to pray and continue the struggle for the unborn and their right to pray at Oak Flat.

Pointing out this continual genocide, she said, "This land is sacred. This land is holy."

"We have to fight for the yet-to-be-born." 

Apache Stronghold's attorney Luke Goodrich said the U.S. government didn't hold back in court, and said it for everyone to hear.

"The government thinks that it has blanket authority to do whatever it wants with the land it has taken from Indigenous Peoples." Goodrich pointed out that the sacred place of Oak Flat would be completely destroyed if Resolution Copper is allowed to proceed with a copper mine.

"If the government can take away the central sacred site and stop those practices from Apaches, Apache Stronghold and tribal nations, nobody is safe from the government," Goodrich said.

However, Goodrich said the Apache have the Treaty, civil rights law, the First Amendment of the Constitution, and international agreements that ensure that traditional religious rights and sacred places must be honored and continued.

"This is about the people, about their freedom, their freedom to be Apache."

An Apache song and blessing conclude the press conference.

Listen to the full press conference

Watch the federal court case below.

Read more:

9th Circ. Weighs Tribal Opposition To Ariz. Copper Mine

By Caleb Symons 


Excerpts from the article:

Law360 (March 21, 2023, 9:07 PM EDT) -- The Ninth Circuit wrestled on Tuesday with the extent of federal protections for religious liberty as it revisited a controversial land exchange in Arizona at the heart of plans to build North America's largest copper mine, a project that Indigenous activists say would raze a sacred site.

Litigation over the exchange, under which the U.S. government would give the mining company Resolution Copper close to 2,500 acres in the Tonto National Forest, is once again before the circuit court after it vacated an earlier panel decision last November.

At an en banc rehearing in Pasadena, California, counsel for the San Carlos Apache Tribe group known as Apache Stronghold challenging the land transfer said the move would permanently stop Native Americans from worshipping at a sacred site, known as Oak Flat, within the mine's planned footprint.

The exchange is therefore unlawful under the Religious Freedom Restoration Act, according to Luke Goodrich, a vice president and senior counsel at the religious-liberty law firm Becket. Arguing that the government wouldn't fine Apache worshippers for visiting Oak Flat, Goodrich said Tuesday that federal officials are now "doing something far worse" by letting that site be destroyed to make way for the Resolution Copper mine.

"Here, the government has made the Apaches worse off," he said. "As they sit here today, they have a right to go onto Oak Flat … and use it for their religious purposes."

But the Ninth Circuit seemed to struggle at oral argument with finding a realistic standard under RFRA, which says the government may not "substantially burden a person's exercise of religion."

That requires the court to review subjective religious interests, said U.S. Circuit Judge Marsha S. Berzon. Determining whether there has been a substantial burden in cases like the Apache Stronghold challenge, Judge Berzon added, thus presents a "very hard problem."

"I'm not sure it's the right rubric for making these decisions," she said of that type of RFRA analysis.

The controversial land exchange was enshrined into federal law in 2014, when Congress directed the government to give Resolution Copper a section of the Tonto National Forest — east of Phoenix — in exchange for more than twice as much land nearby.

Resolution Copper, a joint venture of mining giants BHP and Rio Tinto, estimates that it would produce up to 40 billion pounds of copper ore at the Arizona development over the next four decades. That output could satisfy a quarter of the United States' annual copper demand, according to the company.

Apache Stronghold sued in early 2021 to block the land transfer, but a Phoenix federal judge let the Resolution Copper project move forward on the basis that it doesn't impose a substantial burden on the group's religious freedom.

A divided Ninth Circuit panel upheld that ruling last June, with the majority saying that Oak Flat isn't protected under RFRA because the land exchange will cause that site to be destroyed incidentally, not intentionally. Judge Berzon, in dissent, slammed the panel's "absurd result" of upholding a policy that will keep Apache people from using a site where they've performed religious rituals for centuries.

The Ninth Circuit vacated the panel decision and granted an en banc rehearing in November.

Meanwhile, the federal government still hasn't issued an environmental impact statement for the Resolution Copper project that it promised to complete two years ago. Pepin told the Ninth Circuit on Tuesday that the government expects to issue that review, which would trigger the land exchange, in the coming months.

Apache Stronghold is represented by Luke W. Goodrich, Mark L. Rienzi, Diana Verm Thomson, Joseph C. Davis and Daniel D. Benson of the Becket Fund for Religious Liberty, Clifford Levenson of the Law Office of Clifford Levenson and Michael V. Nixon.

The government is represented by Todd Kim, Andrew C. Mergen, Katelin Shugart-Schmidt and Joan M. Pepin of the U.S. Department of Justice's Environment and Natural Resources Division.

The case is Apache Stronghold v. USA et al., case number 21-15295">21-15295, in the U.S. Court of Appeals for the Ninth Circuit.

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