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Apaches' fight over Arizona copper mine goes before US court

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Copyright 2021 The Associated Press. All rights reserved.

Former San Carlos Apache Chairman Wendsler Nosie Sr. talks to a group gathered outside the federal courthouse in Phoenix, Tuesday, Feb. 2, 2021. Nosie leads Apache Stronghold, a group that's asking a federal judge to keep the U.S. Forest Service from turning over a parcel of land it considers sacred, to a copper mining company. (AP Photo/Cheyanne Mumphrey)

FLAGSTAFF, Ariz. – Apache tribal members made emotional pleas Wednesday in federal court to try to prevent what could become the largest copper mine operation in the U.S.

Naelyn Pike and her grandfather, Wendsler Nosie Sr., were representing Apache Stronghold. The nonprofit group recently sued the U.S. Forest Service to keep the agency from turning over a parcel of land to Resolution Copper, a joint venture of global mining companies Rio Tinto and BHP.

The group is seeking an injunction until U.S. District Court Judge Steven Logan in Arizona ultimately can determine who has rights to the land east of Phoenix and whether mining would infringe on Apaches' religious practices.

The Forest Service says it's doing what Congress mandated.

Logan says he will issue a decision on the Apaches' request on Feb. 12.

Here is an overview of the case:

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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 (9.71 square kilometers) of land in the Tonto National Forest. The clock is ticking for the land exchange.

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 have supported legislation to reverse the land exchange. Democratic U.S. Rep. Raul Grijalva of Arizona has been a major supporter. Republican legislators have touted the economic benefits the mine could bring.

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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.

Resolution Copper, which has said the mine could have a $61 billion impact over the project's expected 60 years and employ up to 1,500 people, intervened in the San Carlos Apache case.

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.

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 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.

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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 elsewhere, but Apache Stronghold says they have unique power within Oak Flat.

It's where Pike had her coming-of-age ceremony and a place she likened to a corridor where Apaches speak to the creator and other deities, part of a religion intertwined with the land.

“Without the spirit, then there's nothing at all,” she said in Wednesday's hearing. “All that cannot be taken away. It cannot be destroyed.”

The site also is 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, a former San Carlos Apache chairman, moved to the site in late 2019.

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

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WHO “OWNS” THE LAND?

Apache Stronghold contends the land belongs to Western Apaches under an 1852 treaty with the United States.

John Welch, a professor and anthropologist, has worked extensively with Apache tribes. He says he hasn't found any evidence to suggest otherwise, including from a federal commission set up in the 1940s to settle tribal land claims.

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.

“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.

Reuben Schifman, a U.S. Department of Justice Attorney representing 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 tribe.

Land that includes Oak Flat within the Tonto National Forest 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,” Justice Department attorneys wrote in court documents.