Oak Flat, a 6.7 square mile plot of land within the Tonto National Forest in the heart of Arizona, has been long recognized as a holy site for the San Carlos Apache Indians. Since 1852, the US federal government has promised to maintain the site for the Apache and protect it from desecration, a promise that was upheld by the Eisenhower administration in 1955, when they expressly banned ore mining anywhere in Oak Flats. This agreement, however, collapsed in 2014, when the National Defense Authorization Act of 2015 (NDAA) was signed into law by then-president Barack Obama, ceding Oak Flats and 2,400 acres of adjacent land to Resolution Copper, a foreign joint-venture mining project, to strip mine Oak Flats for its subterranean copper deposits. If completed, the mining efforts will annihilate the holy site, quite literally turning it into a giant pit in the ground, much to the devastation of both the San Carlos Apache People and local residents. As of September 2022, Oak Hill remains intact, as Resolution Copper is still in the process of completing federally required environmental impact research on the site before they can break ground. However, the mining group has already acquired nearly all of the other needed excavation permits, so time is running out for an injunction or other legal action to halt the land transfer.
Apache Stronghold, a special interest group formed to oppose the creation of Resolution Copper mine, sued the US Government in early 2021 (Apache Stronghold v United States), arguing that the consequences of the NDAA placed an unnecessary burden on the Apache faith and prevented worshipers from carrying out a number of special ceremonies tied to that specific parcel of land. During the hearing, Apache Stronghold passionately argued that Oak Flat was their religion’s “Rock of Masada,” and that the annihilation of the site would permanently and irreparable damage their ability to communicate with their Creator. In a split decision, however, the 9th-Circuit Court of Appeals denied Apache Stronghold’s appeal, maintaining that the transfer of this land did not pose a “substantial burden” to the Apache People’s ability to freely exercise their faith. Instead, the majority opinion held that the land transfer simply constituted the discontinuation of a privilege—worshiping on federally held land—that had been historically extended to the Apache People, and that this privilege could be discontinued with impunity, since it did not amount to a coercive action against the established Apache religion. Naturally, Apache Stronghold has vowed to appeal the case to the US Supreme Court and hoped to have their case added to the October 2022 docket, though it was not accepted.
While I will quite readily concede that it is in exceptionally poor taste to strip the Apache People, who have historically suffered considerable degradation by the hand of the US Federal Government, of access to the Oak Flat holy site, I am inclined to side with the majority opinion of the 9th-Circuit in saying that the Apache People’s right to freely exercise their religion is not being unduly burdened by the actions of the US Government. Therefore, the land transfer does not constitute a constitutional violation. While the First Amendment indelibly protects the San Carlos Apache from having their right to worship unreasonably constrained by legislation, the amendment cannot realistically be interpreted to protect all holy sites of all spiritual traditions in perpetuity, especially when said holy site is neither owned nor administered by the religious institution that venerates it. Additionally, the only thing explicitly authorized by the NDAA clause was the transfer of a tract of public land to private ownership, a transaction that would have occurred regardless of whether the Apache People revered the land being transferred or not. The wording of this clause is entirely neutral towards the Apache religious tradition and does not deprive the Apache People of any benefit or special privilege under the law on account of their faith. Also worth noting is the prevailing public interest in harvesting the subterranean copper deposit beneath Oak Flat, an endeavor that could create hundreds of jobs and substantially lessen the United States' need to import copper.
4 comments:
I disagree with the decision of the court, taking into consideration that the Apache Indians have been marginalized for a long time, the court should have put not only their religious beliefs first but other factors such as the health of the creek in the area that serves nearby Indegenous communities and wildlife. It was established that this has been sacred land for this group since the 1800’s therefore the sincerity is real and these people have a generational right to these lands; destroying this religious place just for jobs, money, and a wealthy company is extremely inconsiderate and greedy. It is important to see how scared this place is to the San Carlos Apache Indians, and having copper underneath this place is not enough of an excuse to invade this place that was previously protected under the government.
Morally, I am inclined to agree with Leo. I believe it is wrong that the US Federal Government made a promise to the Apache Indians and then went back on their promise so they can use the land for extraction. However, morals aside I am inclined to agree with the decision of the court and Luke. There is no violation to the Indians first amendment right because the Indians are still able to freely exercise their religion. This case reminds me of the court case regarding the football coach, Joseph Kennedy, taking a knee and praying at the half-line during a football game. In both cases, the coach and Indians, are not being being prohibited from exercising their religion, but rather they are given restrictions, for distinct and seperate reasons, where they can exercise their religion. These cases had different rulings, but my opinion lies the same in both.
I would have to disagree with the decision of the court on the basis that the Apache are arguing that their link to their Creator would be severed if this land is to be disrespected. In my personal opinion it would be not only upholding the traditions of the past by honoring this land, but it would set a good example for the future because Native American reservations have been slowly falling into federal hands for various energy uses since their establishment, slowly becoming smaller and smaller. In an extremely marginalized community such as the Native Americans it is important to recognize that the federal government of America was established by colonizers on Native land, which has had holy meaning for an extremely long time. This feels like a distinct violation of the Apache's freedom of religion when there is such high stakes for them religiously such as being cut off from their Creator and not being able to practice important religious ceremonies.
The first amendment of the constitution states that "no law will be made respecting an establishment of religion, or prohibiting the free exercise thereof" (U.S. Const. amend I). In my opinion, the decision to transfer this sacred land, Oak Flat, to Resolution Copper does not cross any lines and violate the first amendment. Transferring this land does not prohibit the free exercise of religion for the San Carlos Apache Indians even if they are now unable to use the land for sacred rituals. They are still able to practice their religion freely without having this piece of land. If the U.S. was to protect the land for them in order for them to have it to use for their religious reasons, this might be an issue. This could be looked at as a law being passed to "respect the establishment of religion." In this situation the Apache Indians are being given restrictions like Emma said, similarly to what happened to Joseph Kennedy. I have to agree with the court in this case as upsetting as it may be to watch the government go back on a promise. As people have previously said, morally it is wrong that this land is being taken, especially after years of being marginalized, but the courts decision does not violate the first amendment. The courts job is to uphold the constitution, and they are doing so here.
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