Dalton Walker
Indian Country Today

The leader of the fight to save Oak Flat shared emotional testimony Wednesday, along with his granddaughter, on the sacred land’s religious importance and why it should be saved.

Their remarks before a federal judge were the latest step in a yearslong fight to stop a proposed copper mine in eastern Arizona.

Apache Stronghold recently sued the U.S. Forest Service for turning over Oak Flat to Resolution Copper, a joint venture of global mining companies Rio Tinto and BHP.

The group is seeking an injunction until a judge ultimately can determine who has rights to that land, and whether mining would infringe on Apaches’ religious practices. The Forest Service says it’s doing what Congress mandated.

(Previous: Apache group sues over land swap for Arizona mine)

Apache Stronghold leader and former San Carlos Apache Chairman Wendsler Nosie Sr. and granddaughter Naelyn Pike were two of the three people to testify. Archaeologist and professor John Welch, an Apache ally, was the third.

“When I go there, when I’m praying there, my prayers go directly to our Creator, and that can’t happen anywhere else,” Pike said in her testimony.

The in-person hearing in Phoenix lasted nearly three hours. Judge Steven Logan allowed the public to listen via phone. Logan asked the plaintiffs and the defendants to submit written arguments before the end of the day Friday. He said he would issue an order no later than 5 p.m. on Feb. 12.

Nosie, Pike and another granddaughter, Báásé Pike, journeyed from Chi’chil Bildagoteel, or Oak Flat, to Phoenix in a ceremonial run before the hearing. The three have been advocating to save the land for years. A prayer vigil was held in Phoenix the night before.

Báásé Pike and Wendsler Nosie Sr. on the Indian Country Today Newscast on August 6, 2020. (Screencap)

Much of Wednesday’s testimony by Nosie and Pike stressed Oak Flat’s religious importance.

“We have the constitution of the United States that talks about the freedom of religion. Well, how come we are not afforded that?” Nosie said in his testimony.

Nosie and Pike held a virtual news conference after the hearing.

“In my own perception, you cannot mitigate our religion,” Pike said. “Resolution Copper, the United States, Tonto National Forest can’t mitigate our beliefs and who we are because that is the spirit of Oak Flat.”

Here is an overview of the case courtesy of The Associated Press:

THE LAND SWAP

Stand-alone legislation in Congress for the land exchange failed for several years. In December 2014, the late U.S. Sen. John McCain and former U.S. Sen. Jeff Flake of Arizona slipped the exchange into a must-pass defense bill.

The provision required an environmental impact statement before Resolution Copper would exchange eight parcels it owns in Arizona for 3.75 square miles of land in the Tonto National Forest. The clock is ticking for the land exchange.

This June 15, 2015, file photo shows in the distance, part of the Resolution Copper Mining land-swap project in Superior, Ariz. A group of Apaches who have tried for years to reverse a land swap in Arizona that will make way for one of the largest and deepest copper mines in the U.S. sued the federal government Tuesday, Jan. 12, 2021. Apache Stronghold argues in the lawsuit filed in U.S. District Court in Arizona that the U.S. Forest Service cannot legally transfer land to international mining company Rio Tinto in exchange for eight parcels the company owns around Arizona. (AP Photo/Ross D. Franklin, File)

The provision caught environmentalists and tribes off-guard. The area known as Oak Flat had been federally protected from mining because of its cultural and natural value for decades.

Since then, they’ve supported legislation to reverse the land exchange. Democratic U.S. Rep. Raul Grijalva of Arizona has been a major supporter.

OTHER LAWSUITS

The Apache Stronghold lawsuit is one of three filed over the copper mine, some of which have overlapping arguments.

The San Carlos Apache Tribe, and a coalition of environmentalists, tribes and the Arizona Mining Reform Coalition also sued the U.S. Forest Service.

The lawsuits raise concerns over federal laws regarding historic preservation, the environment, religious freedom, constitutional rights and a decades-old agreement between Apaches and the United States.

Oak Flat supporters held a prayer vigil outside a Tonto National Forest office in Phoenix on Thursday, Jan. 14, 2021. (Photo by Carina Dominguez, Indian Country Today)

The U.S. Forest Service has declined to comment on the lawsuits. In court documents, the agency said it doesn’t question the sincerity of the religious and historical connection that Apaches have to the land known as Oak Flat.

“Congress has decided this land exchange should go forward, and any construction, mining or ground disturbance at the site is not imminent,” attorneys for the agency wrote.

OAK FLAT

Apaches call the mountainous area Chi’chil Bildagoteel. It has ancient oak groves, traditional plants and living beings that tribal members say are essential to their religion and culture. 

Those things exist in other places, but Apache Stronghold says they have unique power within Oak Flat.

The site is also popular for camping, hiking and rock climbing. Resolution Copper says it will keep the campground open to the public as long as it’s safe but eventually the area would be swallowed by the mine.

Apaches have camped out there in protest. Nosie also moved to the site.

The Society for American Archaeology has said the area is of great significance archaeologically within the U.S. Southwest.

WHO ‘OWNS’ THE LAND?

Apache Stronghold contends the land belongs to Western Apaches under an 1852 treaty with the United States. Welch has worked extensively with Apache tribes, says he hasn’t found any evidence that would suggest otherwise.

The so-called Treaty of Santa Fe was one of a handful of treaties negotiated with a broad group of Apaches, and the only one ratified by the U.S. Senate, said Karl Jacoby, a Columbia University history professor who has written about the treaty and isn’t connected to the lawsuit.

The treaty was meant as a peace accord at a time the U.S. was acquiring territory from Mexico. It suggests that Apaches have a right to their territory but it doesn’t spell out that territory, Jacoby said.

Activists have been protesting against the Resolution Copper mine at Oak Flat for years, including this 2015 protest in Washington. Opponents of the mine now worry that the Trump administration has fast-tracked the mine’s final environmental impact statement – a claim both the mine and the U.S. Forest Service deny. (File photo by Jamie Cochran/Cronkite News)

“What’s been happening recently is Native people have been dusting off these treaties, and saying, ‘Look, you made this treaty, you can’t just walk away from it. You have to honor it, it’s in your constitution,’ which is the supreme law of the land,” he said.

Attorneys for the Forest Service said Apache Stronghold can’t assert ownership rights because it’s not a federally recognized tribe. Even then, the land isn’t held in trust for any Apache tribe.

Land that includes Oak Flat became part of the United States through the Treaty of Guadalupe Hidalgo in 1848.

“The United States has never alienated title to the lands at issue in this suit,” attorneys for the Forest Service said.

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Dalton Walker, Red Lake Anishinaabe, is a national correspondent at Indian Country Today. Follow him on Twitter: @daltonwalker Walker is based in Phoenix and enjoys Arizona winters.

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The Associated Press contributed to this report.