Oak Flat: A place of prayer faces obliteration by a copper mine

Just east of Superior, in the lee of Picket Post Mountain and Apache Leap lies a place many say feels magical. But for Apache and other Native peoples, the land holds not mythical magic, but real spiritual and cultural value. 

In the midst of barren rock spires and deep canyon walls, greenery sprouts around serene springs and wetlands. Medicinal and basketry plants cluster near the cool, life-giving water. Animals gather, too, seeking water to slake their thirst. Emery oaks with deep roots drop acorns in the fall, providing a nourishing staple without the need for refrigeration.

The site also feeds souls as a consecrated place for prayer and sweat lodges. It is a site of the Sunrise Dance, the Apache girls' coming-of-age ceremony. 

Oak Flat or Chí'chil Biłdagoteel, "a broad place of Emery oak trees," has been a cultural and religious touchstone for many Native peoples in the region for centuries. 

"My mother and grandmother would talk about when they would go in, and after the acorn dropped, there's a ceremony for the trees, for the acorn, for the food," said Wendsler Nosie, the former San Carlos Apache Chairman who now heads a grassroots group dedicated to keeping this place intact.

Nosie has resided at Oak Flat for nearly two years, praying for its preservation. He teared up when talking about bringing his own family here to gather.

"It takes like 100 years for certain trees to drop acorn," he said. 

For all the significance Oak Flat holds among Indigenous peoples, the site is not protected by tribal boundaries. Much of the area is overseen by the U.S. Forest Service, leaving land-use decisions to the agency. It was withdrawn from mining during the Eisenhower administration, and the Native and non-Native peoples who treasure the area thought it safe from future hard-rock mining.

But in December 2014, Arizona Sen. John McCain added a section to a defense spending bill that left Apache and other Native peoples reeling. That language, the Southeast Arizona Land Exchange and Conservation Act, authorized the transfer of 2,400 acres of Tonto National Forest land to Resolution Copper, a U.S. subsidiary of two British-Australian mining firms, in exchange for more than 5,400 acres of private land.  

The amendment gave Resolution Copper and its supporters access to one of the country's remaining large copper deposits. But for those who consider the site sacred, it is a desecration of one of the Apache people's holiest sites as well as one of Arizona's rare riparian zones.

And because Resolution succeeded in getting the swap into federal law, the Forest Service says its hands are tied from making any decision other than approval. The process was on hold after the Forest Service withdrew the final environmental impact statement on March 1, which delayed the land swap.  

Nosie, who now heads the opposition group Apache Stronghold, has long talked about what he believes would happen: Oak Flat would sink nearly 800 feet deep into the earth, obliterating it and a large part of Apache religious heritage. A mine would also disrupt essential groundwater passageways that feed nearby Queen Creek and other areas in the east Salt River Valley and eastward past Globe.

San Carlos Apache Chairman Terry Rambler has testified several times that Oak Flat, Devil's Canyon (which the Apache call Ga'an Canyon), and nearby Apache Leap are collectively another home to the Ga'an, the holy people known as the Mountain Spirits. He has said over the years that Resolution’s plan would desecrate the home of these holy spirit beings.

Although copper has been mined underneath the area off and on for more than 100 years, Resolution plans to use a new method called block cave mining, or panel caving. Mining experts say it's cheaper than conventional shaft mining. Miners strategically dig tunnels underneath the ore body, about 7,000 feet deep. Eventually, the tunnels would collapse and the ore moved through other tunnels to a crushing facility. And it would leave a giant sinkhole where Oak Flat now stands.

Resolution has said tribal practitioners would continue to have access to Oak Flat until the ground becomes too unstable. The firm also pledged to invest in Emery oak grove restoration at several sites, to perform archeological investigations and salvage what they could, and to train tribal members in various mining disciplines, among other concessions.

But Nosie has his doubts about the proposal.

"What hurts is knowing that, you know, they already have a contract with a construction company that, as soon as the land transfer takes place, the first thing to do is they're going to cut the oak trees and plant them elsewhere."

"That's ridiculous," he said, "because we know for a fact that you can replant but you may not succeed." The wrong trees may be transplanted, because not all oak trees produce acorns. "These trees need to stay because they are the parents since the beginning of time." 

Oak Flat was placed on the National Register of Historic Places two years after the midnight amendment authorized its eventual demise.

On Jan. 15, just five days before Pres. Joe Biden took office, the Forest Service issued its final environmental impact statement. That set off a 60-day period mandated by the statute during which the deed to Oak Flat would be conveyed to Resolution Copper, thus making it private land not subject to most federal statutes.   

Apache Stronghold filed suit in federal court to stop the land swap, arguing that their religious beliefs would suffer substantial damage from the loss of Oak Flat. U.S. District Court Judge Steven P. Logan denied the suit, citing the passage of the land swap bill by Congress. He said that although the federal government has a trust responsibility to tribes, it frequently structures that trust responsibility so it can "pursue its own policy goals," such as trade federal lands for mining or development. 

Apache Stronghold appealed to the U.S. 9th Circuit Court of Appeals, aided by the Becket Fund for Religious Liberty, a legal and educational institute that defends religious liberty for all faiths.

In a responding brief filed May 17, the U.S. Department of Justice argued against setting aside the legislation on religious liberty claims, referring to two federal court cases as justification to deny Apache Stronghold's claims that obliterating Oak Flat would cause substantial burdens to Apache peoples' religious practice.

In the 1988 case, Lyng v. Northwest Indian Cemetery, the U.S. Supreme Court ruled against Northern California tribes seeking to prevent a logging road from irreparably damaging sacred sites. The 9th Circuit Court used this case when ruling against tribes in the case Navajo Nation v. United States Forest Service, even though the case to prevent treated effluent from being used on the San Francisco Peaks was based on both environmental and religious laws. 

"The Supreme Court and this Court have both held that government management of federal land does not impose a substantial burden on anyone, even if it severely impacts their religious exercise," the administration wrote. They also said that the federal government has the right to do with its own lands however it sees fit.

Also, federal officials said, because the environmental impact statement was returned to the Forest Service for further consultation, the immediate danger of Oak Flat being fenced off to Native peoples is moot.

If a bill making its way through Congress to repeal the land swap is unsuccessful, the federal lawyers wrote, ample notice would be given before the handover to Resolution is finalized. And, they said, "If it does occur, religious and recreational access will continue, and no activities that could later cause subsidence will occur, for at least two years."  

The Pueblo of Zuni wrote a letter to President Joe Biden on July 1 responding to a request about how the administration could create a more equitable way of serving communities. The tribe pointed out the Justice Department's defense in the Apache Stronghold suit illustrates what they said was "little more than a continuation of a policy of containment and erasure of Native peoples that directly contradicts in substance, content, and spirit the Administration's own E.O. 13985."

On March 1, Agriculture Department directed the Forest Service to rescind the final environmental impact statement and decision on the mine project. But tribes, tribal organizations and environmentalists are keeping a close eye on proceedings as the various lawsuits and pending repeal legislation make their way through the courts and Congress.  

At a public hearing in 2019, San Carlos Apache tribal member Sandra Rambler said the holy grounds and ceremonial sites are set in place — moving to a new site would be impossible.

"There are no acorn trees (at any other site)," Rambler said. "There's no ceremonial site there. There's no holy ground there. So how can we just move from one place to another place just because they told us to? 

"That's not within our spirituality. We believe that Oak Flat is sacred."

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 or at 602-444-8490. Follow her on Twitter at @debkrol. 

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