Apache women make last-gasp attempt to save sacred land at SCOTUS

A group of Apache women filed an emergency request at the Supreme
Court on Monday to prevent a sacred religious site from being swallowed
by a massive copper mine.

Chí’chil Biłdagoteel, or Oak Flat, is a
6.7-square-mile sacred site littered with old-growth oak groves,
springs, burial locations and archaeological sites east of Superior,
Arizona. For the Apaches, Oak Flat holds a direct connection to their
creator, making it a foundational part of their religious beliefs.

Oak
Flat is also the seat of a large copper deposit. Resolution Copper has
been trying to mine the land for two decades. It has been unsuccessful
until now.

The Trump administration said Oak Flat was transferred
to Resolution after an appeal court ruling on Friday. Without the
justices’ swift intervention, the women warned that the Apache holy land
will be turned into a 2-mile-wide crater by the private mining company.

“The
United States government has a tragic history of destroying Apache
lives and lands for the sake of mining interests,” the group wrote in an emergency application.
“The Apaches simply ask that the land not be transferred beyond federal
control and destroyed before the courts (including this court) resolve
their claims.”

The federal government protected Oak Flat until
2014, when senators slipped a land transfer into the Defense
Authorization Act. In the final days of his first term, President Donald
Trump accelerated the project to complete the transfer.

The
Apaches say the land transfer would violate the Religious Freedom
Restoration Act by preventing the Apaches from conducting their most
sacred religious practices after the site’s destruction.

Last May, the Supreme Court refused to review an appeal from Apache Stronghold, a nonprofit, on those grounds. But the women argue the high court’s June ruling in Mahmoud v. Taylor opened a new path, citing the free-exercise right of Apache parents to direct the religious upbringing of their children.

“If
even ‘subtle’ governmental actions can pose ‘a very real threat’ to
parental religious formation, how much more here, where the government’s
actions will forever destroy an irreplaceable sacred site and prevent
Apache parents like applicants from initiating their children in Apache
religious practices,” the women wrote. “This is nothing less than ‘the
destruction of [a religious] community,’ which every justice in Mahmoud agreed was unconstitutional.”

Last week, the Ninth Circuit ruled
the Forest Service met its responsibilities under the National
Environmental Policy Act by analyzing environmental impact and
considering possible alternatives in its final environmental impact
statement.

An attorney for the Apache women notified the
government of their intent to file a Supreme Court appeal, requesting
information on when it planned to complete the land exchange. According
to the plaintiffs, the government said, “The land exchange has already
been completed.”

The Apaches are pushing the justices to grant an
immediate administrative stay, claiming the government appeared to be
trying to evade judicial review.

“If this court pauses the
transfer now but reverses course later, the government loses little,”
the group wrote. “It can still proceed with the project — which it has
voluntarily delayed for over a decade — and still mine every ounce of
copper. But if this court denies emergency relief now, it may never get
the chance to reverse course later, and the Apaches lose everything. Oak
Flat will be destroyed, and the Apaches will never again be able to
worship at Oak Flat.”

Shortly after the group filed its emergency application, the Justice Department and attorneys for Resolution Copper filed letters noting their opposition.
The government confirmed that the land transfer had occurred and said
the Supreme Court did not have jurisdiction to reverse the action.

“The
applicable standard should if anything be more stringent here since the
land exchange that applicants sought to prevent through this lawsuit
has now occurred,” U.S. Solicitor General John Sauer wrote. “Applicants
presently ask the circuit justice not to preserve the status quo but to
alter it, either by undoing the land exchange or by restricting
Resolution’s ability to utilize the land it recently acquired.”