Professional Documents
Culture Documents
21-15295 Appellant BR
21-15295 Appellant BR
No. 21-15295
___________________________________________________________________________________________________________________
APACHE STRONGHOLD,
Plaintiff-Appellant,
v.
UNITED STATES OF AMERICA, ET AL.,
Defendants-Appellees.
MICHAEL V. NIXON
101 SW Madison Street #9325
Portland, OR 97207
(503) 522-4257
[email protected]
CLIFFORD LEVENSON
5119 North 19th Street, Suite K
Phoenix, AZ 85015
(602) 544-1900
[email protected]
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rial. The district court found that “[t]he spiritual importance of Oak Flat
to the Western Apaches cannot be overstated.” ER.11.
Yet on March 11, 2021, the United States is scheduled to transfer con-
trol over Oak Flat to a mining company, Resolution Copper, which will
construct a mine collapsing and destroying the sacred site in a nearly
two-mile-wide, 1,100-foot-deep crater. As the Forest Service said in its
members” to use “known” sacred sites “for cultural and religious pur-
poses.” FS Resolution Copper Project and Land Exchange Environmental
Impact Statement, 2 FEIS at 790 (U.S.D.A. 2021), available at
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https://www.resolutionmineeis.us/documents/final-eis.
This irreversible destruction of one of the most sacred indigenous sites
junction pending appeal to preserve Oak Flat while this appeal proceeds.
Before filing this motion, Apache Stronghold asked the Government if
it would agree to a 60-day stay of the land transfer (until May 10, 2021)
so that this Court could consider the request for relief on a less com-
pressed schedule. The Government refused. Thus, Apache Stronghold re-
quests relief by March 2, 2021, so that if this Court denies relief, it can
seek relief from the Supreme Court by March 10, 2021. To that end it
proposes the following briefing schedule:
• February 23: Apache Stronghold’s motion
• February 28: Defendants’ response
• March 1: Apache Stronghold’s reply
• March 2: Court’s decision
(iii) Why the motion could not have been filed earlier
Apache Stronghold filed this lawsuit on January 12, 2021, seeking a
TRO to prevent the Forest Service from issuing the FEIS and completing
the land transfer. The district court then held a preliminary-injunction
hearing on February 3, 2021 (ECF 37), and issued its opinion denying a
preliminary injunction on February 12, 2021 (ECF 57, ER.1-23).
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Apache Stronghold filed its Notice of Appeal the same day it retained
new appellate counsel—February 18, 2021—who immediately began pre-
paring motions for injunctions pending appeal for the district court and
this Court. Apache Stronghold filed its district court motion the next day,
February 19, 2021. That motion was denied on February 22, 2021, and
Apache Stronghold filed this emergency motion the next day, February
23, 2021.
(iv) Notice and service on the opposing parties’ counsel
In compliance with FRAP 8(a)(2), Apache Stronghold’s notice of appeal
and motion for injunction pending appeal in the district court gave De-
fendants advance notice of this motion. Apache Stronghold also notified
Defendants’ counsel by email on February 19, 2021, of its intent to file
this motion. Apache Stronghold’s counsel will email a PDF copy of this
motion to Defendants’ counsel immediately after it is filed.
(v) Whether relief was first sought in the district court
Apache Stronghold filed a motion for injunction pending appeal in the
district court on February 19, 2020, and that motion was denied on Feb-
ruary 22, 2021.
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TABLE OF CONTENTS
INTRODUCTION ...................................................................................... 1
BACKGROUND ........................................................................................ 3
D. The Mine......................................................................................... 12
ARGUMENT ........................................................................................... 15
II. The Government’s actions violate the Free Exercise Clause. ......... 24
CONCLUSION ........................................................................................ 29
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CERTIFICATE OF SERVICE................................................................. 31
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TABLE OF AUTHORITIES
Page(s)
Cases
Haight v. Thompson,
763 F.3d 554 (6th Cir. 2014) ............................................................... 17
Herrera v. Wyoming,
139 S. Ct. 1686 (2019) .............................................................. 25-26, 28
Holt v. Hobbs,
574 U.S. 352 (2015) ....................................................................... 16, 19
Koger v. Bryan,
523 F.3d 789 (7th Cir. 2008) ............................................................... 17
McGirt v. Oklahoma,
140 S. Ct. 2452 (2020) ................................................................... 26, 28
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Nance v. Miser,
700 F.App’x 629 (9th Cir. 2017).................................................... 17, 19
Sherbert v. Verner,
374 U.S. 398 (1963) ............................................................................. 16
Tanzin v. Tanvir,
141 S. Ct. 486 (2020) ........................................................................... 17
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Warsoldier v. Woodford,
418 F.3d 989 (9th Cir. 2005) ......................................................... 17, 28
Wisconsin v. Yoder,
406 U.S. 205 (1972) ............................................................................. 22
Yellowbear v. Lampert,
741 F.3d 48 (10th Cir. 2014) ............................................................... 17
Statutes
National Defense Authorization Act, P.L. 113-291 (2014) ......... 10, 11, 12
Other Authorities
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INTRODUCTION
Western Apaches have centered their religious practices on Chi'chil
Biłdagoteel—“Emory Oak Extends on a Level,” or “Oak Flat”—since time
immemorial. As the district court found, “[t]he spiritual importance of
Oak Flat to the Western Apaches cannot be overstated.” ER.11. Yet in 16
days, the federal government plans to transfer this sacred site to a third
party for the express purpose of constructing a mine that all parties agree
will destroy the site.
In a typical injunction case, a court might wonder whether the threat-
ened harm is imminent or irreparable. Here, however, the Government
has already attested to those facts. It concedes that upon transfer, Oak
Flat will immediately “become private property and no longer be subject
to [laws] or Forest Service management that provides for tribal access,”
which is a serious “adverse impact on resources significant to the tribes.”
3 FEIS at 824. And construction of the mine—the avowed and only pur-
pose of the transfer—will result in “immediate,” “permanent,” and “[i]rre-
versible” destruction of the site, forever ending religious practices at Oak
Flat. 2 FEIS at 789-90. The district court expressed no disagreement.
Instead, the court denied relief based on its view of the merits of Plain-
tiffs’ RFRA, free exercise, and trust claims. But in doing so, it made sev-
eral legal errors. First, in rejecting the RFRA claim, the court held that
Plaintiffs can show a “substantial burden” on their religious exercise only
if they suffer denial of a government benefit or threat of sanctions—not
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BACKGROUND
A. The Apaches and Oak Flat
Since before recorded history, Western Apaches have lived, wor-
shipped on, and cared for Oak Flat and surrounding lands. They believe
that Usen, the Creator, gave life to all things. ER.65. Thus, everything
has life, including air, water, and Nahagosan—Mother Earth herself.
ER.93. The Apaches strive to remain “intertwined with the earth, with
the mother” so they can “communicate with what [is] spiritual, from the
wind to the trees to the earth to what [is] underneath.” ER.82.
Central to this connection are the Ga’an, who are “guardians” and
“messengers” between the Creator and people in the physical world
(ER.75)—roughly comparable to angels in Christianity. Usen created the
Ga’an as “the buffer between heaven and earth” and created specific
“blessed places” for the Ga’an to dwell. ER.81, 95.
One of the most important of the Ga’an dwelling places is Oak Flat—
a 6.7-square-mile traditional cultural property between Apache Leap on
the west and Ga’an Canyon (called Devil’s Canyon by non-Indians) on the
east. The central sacred area of Oak flat is depicted here:
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The terrain of Oak Flat includes jagged cliffs, boulder fields, grassy
basins, Emory oaks, and perennial waters used by songbirds, mountain
lions, fox, bear, and deer:
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Apaches have held Oak Flat sacred since before recorded history. It is
“uniquely endowed with holiness and medicine,” and neither “the powers
resident there, nor [the Apache] religious activities that pray to and
through these powers can be ‘relocated.’” ER.225. Only there can their
“prayers directly go to [the] creator.” ER.65.
As the “direct corridor to [their] Apache religion,” Oak Flat is the site
of key religious practices “that must take place there.” ER.65, 225. These
include the Sunrise Ceremony, Holy Ground ceremonies, sweat lodge cer-
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In the night, the Ga’an at Oak Flat enter Apache men called crown
dancers. ER.74. The Ga’an bless the girl, who joins the dance. Id.
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On the final day, one of the Ga’an dancers paints the girl with white
clay taken from the ground at Oak Flat, “mold[ing] her into the woman
she is going to be.” ER.72-73. When her Godmother wipes the Oak Flat
clay from her eyes, “she’s a new woman” forever “imprint[ed]” with the
spirit of Oak Flat. ER.73.
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B. Mining Interests
Unfortunately, the Government has a tragic history of destroying
Apaches’ lives and land for the sake of mining interests. In the 1852
Treaty of Santa Fe, the United States promised the Apaches it would
“designate, settle, and adjust their territorial boundaries” and “pass and
execute” laws “conducive to the prosperity and happiness of said Indi-
ans.” ER.205. Although the formal designation of boundaries never took
place, the earliest map, prepared by the Smithsonian Institution, shows
Oak Flat as Apache, not U.S., territory. ER.110-11. Dr. John Welch, an
expert in Apache anthropology and archaeology, testified there is “no ev-
idence that the United States compensated the Apache treaty rights hold-
ers for Chi'chil Biłdagoteel,” and “Oak Flat is Apache land.” ER.154.
After the treaty, as settlers and miners entered the area, U.S. soldiers
and civilians committed numerous massacres of Apaches. 3 FEIS at 827.
tion” of the Apaches to make way for the “search of precious metals.”
Welch at 8. The General Mining Act of 1872 authorized miners to take
Apache land, and by 1874, the U.S. government had forced some 4,000
1John R. Welch, Earth, Wind, and Fire: Pinal Apaches, Miners, and Gen-
ocide in Central Arizona, 1859-1874, SAGE Open (2017) (35 lethal at-
tacks from 1859-74), at 7 (hereinafter “Welch”).
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victed for soliciting a bribe from Resolution Copper to support the land-
transfer. See United States v. Renzi, 769 F.3d 731, 739-40 (9th Cir. 2014).
In 2013, Resolution Copper published a “General Plan of Operations”
for a mine at Oak Flat. 1 FEIS 1.1. The next year, a looming government
shutdown gave mine proponents their chance. Minutes before the mid-
night deadline for the must-pass National Defense Authorization Act, Ar-
izona Senators McCain and Flake attached a rider authorizing transfer
of a 2,422-acre parcel including Oak Flat to Resolution Copper in ex-
change for about 6,000 acres elsewhere. P.L.113-291 §3003(b)(2), (4);
(c)(1). Rio Tinto, the majority owner of Resolution Copper, was a regular
donor to McCain’s campaigns. 5 Flake had worked as a Rio Tinto lobbyist.6
The rider revoked the presidential orders protecting Oak Flat from
mining, §3003(i)(1)(A), and directed the transfer of Oak Flat to Resolu-
tion Copper “[n]ot later than 60 days after the date of publication of the
final environmental impact statement.” §3003(c)(10).
The Forest Service estimated that the FEIS would not be ready until
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summer 2021.7 But that timeline changed after President Trump lost. In
December 2020, the Department of Agriculture announced the FEIS
7Eric Lipton, In Last Rush, Trump Grants Mining and Energy Firms
Access to Public Lands, N.Y. Times (Dec. 19, 2020),
https://perma.cc/YWX2-D4NS.
8 Id.
9 McGivney, supra n.3.
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This map shows the projected subsidence crater in relation to the cen-
tral sacred area:
The FEIS notes that the entire “NRHP-listed Chi'chil Biłdagoteel His-
toric District [Traditional Cultural Property] would be directly and per-
manently damaged by the subsidence area at the Oak Flat Federal Par-
the destruction of old-growth oak trees and sacred medicine plants essen-
tial to core religious practices, 1 FEIS at ES-29; the destruction of sacred
springs with healing powers present nowhere else, 2 FEIS at 790; ER.65,
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ER.142, ER.229; and the destruction of burial grounds and ancient reli-
gious and cultural artifacts, including many fragile petroglyphs. ER.142;
3 FEIS at 843, 846. According to the FEIS, these effects are “immediate,
permanent, and large in scale.” 3 FEIS at 856. “Mitigation measures can-
not replace or replicate the tribal resources and traditional cultural prop-
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ARGUMENT
An injunction pending appeal is appropriate when the plaintiff shows
(1) likelihood of success on the merits, (2) likelihood of irreparable harm
absent relief, (3) the equities favor relief, and (4) relief is in the public
interest. All. for the Wild Rockies v. Cottrell, 632 F.3d 1127 (9th Cir.
2011). If “the balance of hardships tips sharply in the plaintiff’s favor,”
plaintiff need show only “serious questions going to the merits.” Id. at
1134-35. Here, all four factors favor relief. We start with the merits.
I. The Government’s actions violate RFRA.
RFRA provides that “[g]overnment shall not substantially burden a
person’s exercise of religion” unless it satisfies strict scrutiny. 42 U.S.C.
transfer and destruction of Plaintiffs’ sacred site. And it has not even
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burden. Yellowbear v. Lampert, 741 F.3d 48, 55-56 (10th Cir. 2014) (Gor-
such, J.) (emphasis added). Put differently, “[t]he greater restriction (bar-
ring access to the practice) includes the lesser one (substantially burden-
ing the practice).” Haight v. Thompson, 763 F.3d 554, 565 (6th Cir. 2014).
Thus, as the Supreme Court recognized last year, government prevention
That is just what has happened here. The Government offers Plaintiffs
no “choice”—such as allowing them to use the sacred site subject to pen-
alties. Instead, the Government has authorized the destruction of the
10 See also:
• Greene v. Solano Cnty. Jail, 513 F.3d 982, 988 (9th Cir. 2008) (“little
difficulty” finding that prison’s “outright” refusal to allow inmate to
attend worship services was a “substantial burden”);
• Warsoldier v. Woodford, 418 F.3d 989, 996 (9th Cir. 2005) (govern-
ment conceded that “physically forc[ing an inmate] to cut his hair”
would constitute a substantial burden);
• Nance v. Miser, 700 F.App’x 629, 631-32 (9th Cir. 2017) (prison’s
denial of religious oils constituted substantial burden);
• Koger v. Bryan, 523 F.3d 789, 799 (7th Cir. 2008) (“substantial bur-
den” if government renders a religious exercise “effectively imprac-
ticable”);
• Murphy v. Mo. Dep’t of Corr., 372 F.3d 979, 988 (8th Cir. 2004)
(“substantial burden” if government “significantly inhibit[s]” “per-
son’s ability to…engage in [religious] activities”) (cleaned up).
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tiffs build a church at the only site in the city that would accommodate
their religious practices. This Court recognized that the right to “a place
of worship…consistent with…theological requirements” is “at the very
core of the free exercise of religion.” Id. (citation omitted). Thus, prevent-
ing the plaintiff from building a place of worship could constitute a sub-
stantial burden. Id. at 1061, 1070.
The same principle applies to use of sacred sites on government-con-
trolled land. In Comanche Nation v. United States, the Army planned to
build a warehouse on federal land near Medicine Bluffs, a sacred site.
No.CIV-08-849-D, 2008 WL 4426621, at *17 (W.D. Okla. Sept. 23, 2008).
But the warehouse would have occupied “the precise location” where Na-
tive Americans stood for worship near the Bluffs—making their tradi-
tional religious practices impossible. Id. at *7, *17. The court held that
this physical interference with plaintiffs’ religious exercise “amply
demonstrate[d]” a “substantial burden.” Id.
Here, the Government admits that the mine will obliterate Oak Flat,
leaving a nearly two-mile-wide, 1,100-foot-deep crater behind—destroy-
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ing the sacred trees, eradicating the sacred springs, annihilating the an-
cient graves, and rendering Plaintiffs’ religious practices impossible. As
the FEIS says, this “[p]hysical” destruction of “tribal sacred sites” will be
“immediate,” “permanent,” and “[i]rreversible.” 2 FEIS at 789-90. Cul-
tural destruction on the scale of the Bamiyan Buddhas makes this an
easy case.
The district court failed to grapple with this straightforward analysis.
Instead, it found no substantial burden based on three arguments, each
meritless.
First, it tried to distinguish some of Plaintiffs’ cases by saying they
involved RLUIPA, not RFRA. ER.15 n.8. But that doesn’t apply to Tanzin
or Comanche Nation. More importantly, the Supreme Court and this
Court have held that RLUIPA and RFRA impose “the same standard,”
Holt, 574 U.S. at 358; Nance, 700 F.App’x at 630—which makes sense,
given that the operative text is identical.
Second, the court said that under Navajo Nation and Lyng, there is
no substantial burden “[e]ven where land is physically destroyed.” ER.17.
But neither Navajo Nation nor Lyng involved physical destruction of a
sacred site; in fact, both cases acknowledged the outcome would have
been different otherwise.
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the snow would have no physical impact on the area: “no plants, springs,
natural resources, shrines with religious significance, or religious cere-
monies…would be physically affected[;] [n]o plants would be destroyed or
stunted; no springs polluted; no places of worship made inaccessible, or
liturgy modified.” 535 F.3d at 1063. The plaintiffs remained free to en-
gage in all of their prior religious practices; “the sole effect of the artificial
snow is on the Plaintiffs’ subjective spiritual experience.” Id. (emphasis
added).
Here, by contrast, “plants would be destroyed”; “shrines with religious
significance [and] religious ceremonies…would be physically affected”;
and a place of worship would be made not just “inaccessible” but utterly
destroyed. The claim isn’t just about “subjective spiritual experience”; it’s
about complete physical destruction that annihilates core Apache reli-
gious practices forever.
Similarly, in Lyng, the Court emphasized that the Government “could
[not] have been more solicitous” toward Native American religious prac-
tices. 485 U.S. at 454. It chose a route that was “the farthest removed
from contemporary spiritual sites,” and “provided for one-half mile pro-
tective zones around all the religious sites.” Id. at 454, 443. This ensured
that “[n]o sites where specific rituals take place [would] be disturbed.” Id.
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that claim was not based on physical destruction of their sacred site; it
was based solely on the effect of the road on their subjective “spiritual
development.” Lyng, 485 U.S. at 451. Accordingly, the Court held that
the existence of a substantial burden “cannot depend on measuring the
effects of a governmental action on a religious objector’s spiritual devel-
opment.” Id. (emphasis added). But the Court acknowledged that “pro-
hibiting the Indian [plaintiffs] from visiting [their sacred sites] would
raise a different set of constitutional questions.” Id. at 453 (emphasis
added).
Here, Plaintiffs’ sacred site will not just be “disturbed,” id. at 454, but
destroyed. They will not just be prevented from “visiting” their site, id.
at 453, it will be gone, forever. And far from being maximally “solicitous”
of Plaintiffs’ religious practices, id., the Government is being maximally
destructive.11
Lastly, citing Navajo Nation, the district court said Plaintiffs can es-
tablish a “substantial burden” only if they face one of “two narrow situa-
11 The same distinction of Navajo Nation and Lyng applies to the two
other cases the district court cited. See Snoqualmie Indian Tribe v.
FERC, 545 F.3d 1207, 1210-11 (9th Cir. 2008) (plaintiffs could still ac-
cess the sacred falls, and the relicensing increased water flow); Standing
Rock Sioux Tribe v. U.S. Army Corps of Eng’rs, No. 16-1534, 2017 WL
908538, at *9 (D.D.C. 2017) (no claim that Government destroyed a sa-
cred site—only that it rendered lake “ritually [im]pure” by allowing pipe-
line to be built underneath).
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tions”: (1) they are “deprived [of] a government benefit” due to their reli-
gious practices, or (2) they are “coerced into violating their religious be-
liefs” by threat of “civil or criminal ‘sanction.’” ER.17. In other words, if
the Government merely fenced off the site and threatened “sanctions” for
trespassing, Plaintiffs would face a “substantial burden”; but if the Gov-
22
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Harv. L. Rev. 1294, 1332 (2021). Indeed, as long as the Government acted
without threatening a penalty or denying benefits, it could impose a va-
riety of troubling burdens without any consequence under RFRA—such
as padlocking the doors of a church to prevent worship, confiscating reli-
gious relics, performing autopsies against the religious beliefs of surviv-
ing family, or forcibly removing religious clothing. Id. at 1332, 1338 (col-
lecting cases).
Finally, even accepting the lower court’s misreading of Navajo Nation,
the land transfer does subject Plaintiffs to penalties: for trespassing on
now “private” land. See ER.67. And it does deny them a “governmental
benefit”: the use and enjoyment of “government” land for religious exer-
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and cannot do so for the first time on appeal. United States v. Carlson,
900 F.2d 1346, 1349 (9th Cir. 1990).
II. The Government’s actions violate the Free Exercise Clause.
The Government’s actions separately violate the Free Exercise Clause,
for two reasons. First, Employment Division v. Smith protects from strict
scrutiny only those burdens arising from a “valid and neutral law of gen-
eral applicability.” 494 U.S. 872, 879 (1990). But a law is not generally
applicable if it applies to only one piece of land. See, e.g., Roman Catholic
Bishop of Springfield v. City of Springfield, 724 F.3d 78, 92, 98 (1st Cir.
2013) (Lynch, J.) (law “designed to apply only to the Church” not gener-
ally applicable under Smith because its “purpose” was to address “partic-
ular properties”); cf. Minneapolis Star & Tribune Co. v. Minn. Comm’r of
Review, 460 U.S. 575, 581 (1983) (“special tax that applies only to certain
publications” was not “generally applicable”). Here, the law applies to
only one piece of land and therefore is not generally applicable. See
16 U.S.C. §539p.
Second, the law here “targets religious conduct for distinctive treat-
ment” and is therefore not neutral. Church of the Lukumi Babalu Aye v.
City of Hialeah, 508 U.S. 520, 534, 546 (1993). Targeting is measured by
whether “the effect of [the] law in its real operation” accomplishes a “ger-
rymander.” Id. at 535. Here, the statute, legislative history, and FEIS all
show that the Government knew exactly what it was doing: destroying
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tion is not neutral, but the Free Exercise Clause is not confined to actions
based on animus.” Shrum v. City of Coweta, 449 F.3d 1132, 1145 (10th
Cir. 2006) (McConnell, J.) (citation omitted). That the Government may
be motivated by greed or indifference rather than animus is cold comfort
to the Apaches; their holy place will still be destroyed.
III. The Government’s actions violate its trust obligation to the
Apaches.
Plaintiffs are also likely to prevail on their treaty claim. The Supreme
Court has held that members of a Tribe may assert treaty protections
against individual injury. Here, the treaty created a trust—in addition to
the “general trust relationship between the United States and the Indian
people”—to preserve those rights necessary to the Apaches’ continued
“prosperity and happiness.” United States v. Mitchell, 463 U.S. 206, 225
(1983); ER.205. Plaintiffs may assert that trust interest here.
A. Herrera and McGirt establish Plaintiffs’ interest.
Treaty provisions protecting tribes may be asserted in support of indi-
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“the Tribe’s right to hunt off-reservation.” 139 S. Ct. 1686, 1693 (2019)
(emphasis added). Likewise, in McGirt v. Oklahoma, a tribal member as-
serted “personal interests” that turned on asserting the tribe’s rights:
that “the Creek Reservation persists today,” and was not disestablished.
140 S. Ct. 2452, 2460-62 (2020). See also United States v. Winans, 198
U.S. 371, 378 (1905) (fishing right “secured to said confederated tribes
and bands of Indians” protected individuals).
The district court’s passing distinctions of these cases miss the indi-
vidual injury. It said Herrera and similar cases could be ignored because
“sovereign nations cannot fish or hunt,” wrongly implying that only indi-
viduals enjoy such rights. ER.6 n.2. It likewise dismissed McGirt as re-
lating to “individualized injury” that implicated a treaty question. ER.5
n.1. But Plaintiffs do assert an individualized injury: their individual re-
ligious practices, which the Government’s action will make impossible.
Cases antedating Herrera and McGirt are thus irrelevant.
B. Congress did not abrogate the trust relationship.
It is “undisputed” that there exists “a general trust relationship be-
tween the United States and the Indian people” arising from a “distinc-
tive obligation” to those the Government has made “dependent and some-
times exploited.” Mitchell, 463 U.S. at 225. Thus “where the Federal Gov-
ernment takes on or has control or supervision over tribal monies or prop-
erties, the fiduciary relationship normally exists,” even where “nothing is
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Here, the 1852 Treaty sets forth a trust and specific incident obliga-
tions: that “the government of the United States” will “designate, settle,
and adjust their territorial boundaries, and pass and execute” laws gov-
erning that territory “conducive to the prosperity and happiness of said
Indians.” ER.205. This is exactly the sort of beneficiary language long
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so.’” Herrera, 139 S. Ct. at 1698; see also McGirt, 140 S. Ct. at 2469. Sec-
tion 3003 fails to acknowledge the 1852 Treaty at all.
IV. The other injunction factors are met.
Besides likelihood of success (or a serious question) on the merits, the
Court must also consider the likelihood of irreparable harm absent relief,
the balance of equities, and the public interest. All. for the Wild Rockies,
632 F.3d at 1135. Here, each element sharply favors Apache Stronghold.
First, Plaintiffs need show only “a colorable First Amendment claim”
to establish “irreparable injury.” Warsoldier, 418 F.3d at 1001 (cleaned
up). “The loss of First Amendment freedoms, for even minimal periods of
time, unquestionably constitutes irreparable injury.” Roman Catholic Di-
ocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 67 (2020). Here, the Govern-
ment admits that the harm is irreparable. 2 FEIS at 789.
Second, the equities and the public interest weigh heavily in Plaintiffs’
favor. The land transfer was proposed 15 years ago and authorized by
statute 7 years ago, but the FEIS was published just last month. After so
much delay, the Government cannot “hurry up” at the expense of reli-
gious exercise. By contrast, the detriment to Plaintiffs’ religious exercise
is immediate, permanent, and irreversible. As the district court held, it
“will completely devastate the Western Apaches’ spiritual lifeblood.”
ER.12. “It is clear that it would not be equitable or in the public’s interest”
to permit the Government “to violate the requirements of federal law.”
Valle del Sol v. Whiting, 732 F.3d 1006, 1029 (9th Cir. 2013) (brackets
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omitted). Indeed, a slight delay protecting the status quo costs the Gov-
ernment nothing; rushing forward costs Plaintiffs everything.
CONCLUSION
The Court should enjoin the transfer and destruction of Oak Flat pend-
ing appeal.
Respectfully submitted,
/s/Luke W. Goodrich
MICHAEL V. NIXON LUKE W. GOODRICH
101 SW Madison Street #9325 Counsel of Record
Portland, OR 97207 MARK L. RIENZI
(503) 522-4257 DIANA M. VERM
[email protected] JOSEPH C. DAVIS
CHRISTOPHER PAGLIARELLA
CLIFFORD LEVENSON DANIEL D. BENSON
5119 North 19th Street THE BECKET FUND FOR
Suite K RELIGIOUS LIBERTY
Phoenix, AZ 85015 1919 Pennsylvania Ave. NW
(602) 544-1900 Suite 400
[email protected] Washington, DC 20006
(202) 955-0095
[email protected]
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CERTIFICATE OF COMPLIANCE
This motion complies with the requirements of Fed. R. App. P. 27(d) and
Circuit Rules 27-1(1)(d) and 32-3(2) because it has 5,520 words.
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CERTIFICATE OF SERVICE
I hereby certify that on February 23, 2021, the foregoing emergency
motion for an injunction pending appeal was filed electronically with the
Clerk of the Court for the United States Court of Appeals for the Ninth
Circuit through the Court’s CM/ECF system. I certify that all participants
in the case who are registered CM/ECF users will be served by the appel-
late CM/ECF system and that a PDF copy of this motion will be emailed to
opposing counsel immediately after it is filed.
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No. 21-15295
___________________________________________________________________________________________________________________
APACHE STRONGHOLD,
Plaintiff-Appellant,
v.
EXCERPTS OF RECORD
__________________________________________________________________
MICHAEL V. NIXON LUKE W. GOODRICH
101 SW Madison Street #9325 Counsel of Record
Portland, OR 97207 MARK L. RIENZI
(503) 522-4257 DIANA M. VERM
[email protected] JOSEPH C. DAVIS
CHRISTOPHER PAGLIARELLA
CLIFFORD LEVENSON DANIEL D. BENSON
5119 North 19th Street, Suite K THE BECKET FUND FOR
Phoenix, AZ 85015 RELIGIOUS LIBERTY
(602) 544-1900 1919 Pennsylvania Ave. NW
[email protected] Suite 400
Washington, DC 20006
(202) 955-0095
[email protected]
TABLE OF CONTENTS
18-3 1/21/2021 Ex. C - July 1, 1852 Treaty with the Apaches ER202
1 WO
2
3
4
5
6 IN THE UNITED STATES DISTRICT COURT
7 FOR THE DISTRICT OF ARIZONA
8 ) No. CV-21-00050-PHX-SPL
Apache Stronghold,
9 )
)
Plaintiff, ) ORDER
10 )
vs.
11 )
)
United States of America, et al., )
12 )
13 Defendants. )
)
14 )
15 I. BACKGROUND
16 In 2014, Congress passed the National Defense Authorization Act for Fiscal Year
17 2015 (hereinafter “NDAA”). PL 113-291, available at https://www.congress.gov/113/
18 plaws/publ291/PLAW-113publ291.pdf (last visited February 12, 2021). Section 3003 of
19 the NDAA, known as the Southeast Arizona Land Exchange and Conservation Act,
20 authorizes the exchange of land between the United States Government and two foreign
21 mining companies (known collectively as “Resolution Copper”). 16 U.S.C.A. § 539p. The
22 2,422-acre parcel of Arizona land which the Government will convey to Resolution
23 Copper, located within the Tonto National Forest, includes a sacred Apache ceremonial
24 ground called Chi’chil Bildagoteel, known in English as “Oak Flat.” (Doc. 1 at ¶ 3).
25 Congress’s stated purpose for authorizing the exchange is to “carry out mineral exploration
26 activities under the Oak Flat Withdrawal Area.” 16 U.S.C.A. § 539p(6)(i).
27 On January 12, 2021, Plaintiff Apache Stronghold, a nonprofit organization seeking
28
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1 to prevent the colonization of Apache land, filed a Complaint in this Court seeking to
2 prevent the land exchange. (Doc. 1 at ¶ 11). Plaintiff argues the land is held in trust by the
3 United States for the Western Apaches by way of an 1852 Treaty. (Doc. 1 at ¶ 7). Plaintiff
4 further alleges the mine will desecrate Oak Flat in violation of the Apaches’ religious
5 liberties and will constitute a breach of the trust. (Doc. 1 at ¶ 10).
6 On January 14, 2021, Plaintiff filed a Motion for Temporary Restraining Order
7 (“TRO”) and Preliminary Injunction (“PI”) seeking to prevent the United States
8 Department of Agriculture from publishing a Final Environmental Impact Statement
9 (“FEIS”), a document that “describes the potential environmental effects” of the mine and
10 “includes detailed mitigation measures to minimize impacts.” (Doc. 7); USDA Forest
11 Service, Resolution Copper Update, available at https://www.fs.usda.gov/detail/r3/
12 home/?cid=FSEPRD858166 (last accessed February 12, 2021). The FEIS was set for
13 publication on the following day, January 15. (Doc. 7 at 3). Plaintiff alleges Defendants
14 “nefariously” moved up the timeline of the FEIS publication, which was previously set for
15 April of 2021, so the land transfer could finalize before President Biden’s inauguration and
16 without adequate time for Plaintiff to contest the sale. (Doc. 1 at ¶ 33, 36-39).
17 On January 14, 2021, this Court denied the Motion to the extent it sought an
18 emergency TRO because Plaintiff could not show immediate and irreparable injury.
19 (Doc. 13). Specifically, because Plaintiff could not show the land conveyance would occur
20 immediately upon the publication of the FEIS, and in fact Defendants would have 60 days
21 from the publication to complete the exchange, a TRO without notice and opportunity for
22 response was unwarranted. (Doc. 13 at 4). The FEIS was published on January 15, 2021 as
23 scheduled, starting the 60-day clock. See USDA, FINAL Environmental Impact Statement,
24 Resolution Copper Project and Land Exchange, available at https://www.resolution
25 mineeis.us/sites/default/files/feis/resolution-final-eis-vol-1.pdf (last visited February 12,
26 2021). The parties then fully briefed the Motion. (Docs. 7, 18, & 30). In their Response,
27 the Government indicate that the land sale would not take place until 55 days after the
28 publication of the FEIS (i.e., no earlier than March 11, 2021). (Doc. 18-1 at 3-4). The Court
2
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1 right.” Hunt v. Wash. State Apple Advert. Comm’n, 432 U.S. 333, 343 (1977); see also
2 Ecological Rights Found. v. Pacific Lumber Co., 230 F.3d 1141, 1147 (9th Cir. 2000). The
3 issue here, then, is whether Apache Stronghold’s members have standing.
4 Apache Stronghold argues “[t]here were no tribes in 1852 in any formal sense” and
5 that, instead, there were “leaders representing . . . dozens of groups of Apaches.” (Doc. 47
6 at 25). Accordingly, Plaintiff argues “the Treaty of 1852 was between the United States
7 and the Western Apache peoples, not with any particular Tribe.” (Doc. 30 at 3). By
8 extension, then, Apache Stronghold argues its individual members have standing to assert
9 the Western Apaches’ treaty rights because they are direct descendants of Mangas
10 Coloradus, “one of the Apache signatories to the 1852 Treaty,” since they “are among the
11 intended beneficiaries of [their] direct ancestor’s agreement with the United States.” (Doc.
12 30 at 3).1 Plaintiff’s arguments are unavailing.
13 “[T]he existence of a trust relationship between the United States and an Indian or
14 Indian tribe includes as a fundamental incident the right of an injured beneficiary to sue
15 the trustee for damages resulting from a breach of the trust.” United States v. Mitchell, 463
16 U.S. 206, 226 (1983). However, a treaty, by its very definition, “is ‘essentially a contract
17 between two sovereign nations,’” not between individuals. Herrera v. Wyoming, 587
18
19 1
Plaintiff also argues that the recent Supreme Court case McGirt v. Oklahoma
20 “made it abundantly clear that even a single individual Native American and enrolled
member of a federally recognized Indian tribe can assert his treaty rights and the aboriginal
21 land title rights of his people.” (Doc. 30 at 4) (citing McGirt v. Oklahoma, 591 U.S.___,
140 S.Ct. 2452 (2020)); see also (Doc. 47 at 77) (Plaintiff’s counsel stating he “didn’t
22
believe it was necessary” to join the Western Apache tribes as plaintiffs “in light of the
23 Supreme Court’s recent decision in McGirt v. Oklahoma, where an individual asserted and
vindicated his entire tribe’s treaty rights to a vast part of the state of Oklahoma”). But in
24
McGirt, the plaintiff did not assert or seek to enforce tribal treaty rights. Rather, he suffered
25 individualized injury belonging to him, not the tribe—he had been tried and convicted of a
crime by the state of Oklahoma despite committing the crime on federal Indian land. The
26 Court had to adjudicate the tribal land issue before it could adjudicate McGirt’s individual
27 rights. Here, at least as it relates to the breach of trust claim, the individual Apache
Stronghold members assert no such personalized right. Accordingly, McGirt is not
28 instructive here.
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1 U.S. ___, 139 S. Ct. 1686, 1699 (2019) (citing Washington v. Wash. State Com. Passenger
2 Fishing Vessel Assn., 443 U.S. 658, 675 (1979)). Accordingly, in most situations, “[r]ights,
3 enumerated under treaties, are reserved to communities or ‘tribes’ rather than to
4 individuals.” United States v. State of Or., 787 F. Supp. 1557, 1566 (D. Or. 1992), aff’d,
5 29 F.3d 481 (9th Cir. 1994), amended, 43 F.3d 1284 (9th Cir. 1994).2
6 Where a treaty grants rights to an entire tribe rather than to individual tribal
7 members, “[o]nly the tribe that signed the treaty, or the signatory tribe, can exercise treaty
8 rights.” State v. Posenjak, 127 Wash. App. 41, 49, 111 P.3d 1206, 1211 (2005) (citing
9 United States v. Washington, 641 F.2d 1368, 1372 (9th Cir. 1981) (“The appellants seek to
10 exercise treaty rights as tribes. They may do so only if they are the tribes that signed the
11 treaties.”)). And “[i]ndividual Indians do not have any treaty rights, even if they are
12 descendents [sic] of the signers of the treaty, because a treaty is a contract between
13 sovereigns, not individuals.” Posenjak, 127 Wash. App. at 49 (emphasis added) (rejecting
14 plaintiff’s argument that “he has treaty rights because his great-great-great-grandfather
15 signed the Point Elliott Treaty” since “[t]reaty rights are rights of signatory tribes, not
16 individual Indians.”) (citing Washington, 443 U.S. at 675).3
17
2
18 Plaintiff urges the Court to consider cases like United States v. Winans in which
courts have found individual Indian fishing and/or hunting rights reserved in treaties. (Doc.
19 51 at 3-4) (citing 198 U.S. 371). But sovereign nations cannot fish or hunt. They can,
20 however, hold title to land. Compare, e.g., Bess v. Spitzer, 459 F.Supp.2d 191, 196 (E.D.
N.Y. 2006) (finding that “individual Indians lack standing to sue under the Treaty of Fort
21 Albany of 1664 because that Treaty secures rights for ‘tribes and bands of Indians’ rather
than individuals”) with, e.g., United States v. State of Wash., 384 F. Supp. 312, 399 (W.D.
22
Wash. 1974), aff’d and remanded, 520 F.2d 676 (9th Cir. 1975) (individual Indians had
23 standing to enforce treaty rights because the treaties at issue had individually enforceable
provisions guaranteeing the right of the individual Indians to fish on the land). The line of
24
cases in which individual Indians sought to enforce their individual treaty rights to fish or
25 hunt on aboriginal land is inapplicable here.
3
Although decisions from the Washington Court of Appeals are not binding on this
26 Court, the Ninth Circuit affirmed the Posenjak decision, holding in relevant part that
27 “Posenjak also claims treaty rights as an individual, but the Point Elliott Treaty reserves
rights to tribes as communities, not to American Indians as individuals.” Posenjak v. Dep’t
28 of Fish & Wildlife of State of Wash., 74 F. App’x 744, 746 n.2 (9th Cir. 2003).
6
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1 testified that he is “not aware of any sort of codified or written-down trust associated with
2 the totality of the Western Apaches or the Eastern Apaches territory referenced in [the]
3 1852 Treaty.” (Doc. 47 at 86).
4 In 1983, the United States Supreme Court held that “where the Federal Government
5 takes on or has control or supervision over tribal monies or properties, the fiduciary
6 relationship normally exists with respect to such monies or properties (unless Congress has
7 provided otherwise) even though nothing is said expressly in the authorizing or underlying
8 statute (or other fundamental document) about a trust fund, or a trust or fiduciary
9 connection.” United States v. Mitchell, 463 U.S. 206 (1983) (emphasis added) (citing
10 Navajo Tribe of Indians v. United States, 624 F.2d 981, 987 (Ct. Cl. 1980)). In United
11 States v. Jicarilla, however, the Court clarified the “general trust” relationship between the
12 Government and the Indians. 564 U.S. 162 (2011). The Court acknowledged that a general
13 trustee/beneficiary analogy applied to the Government’s relationship with the Indians “in
14 limited contexts.” Id. at 173. However, the Court explained that, although “relevant statutes
15 denominate the relationship between the Government and the Indians as a ‘trust,’ that trust
16 is defined and governed by statutes rather than the common law.” Id. Accordingly, “the
17 [trust] analysis must train on specific rights-creating or duty-imposing statutory or
18 regulatory prescriptions.” United States v. Navajo Nation, 537 U.S. 488, 506 (2003).
19 The requirement that Congress create a specific trust duty by statute derives from
20 Congress’s plenary authority over Indian affairs. “[T]he organization and management of
21 the trust is a sovereign function subject to the plenary authority of Congress.” Id. With this
22 plenary power in mind, the Government “has often structured the trust relationship to
23 pursue its own policy goals.” Jicarilla, 546 U.S. at 176. Although the Government’s trust
24 relationship with the Indians “relat[es] to the welfare of the Indians,” it remains “distinctly
25 an interest of the United States” subject to congressional control. Heckman v. United States,
26 224 U.S. 413, 437 (1912). For example, in Heckman, the Government sued to prevent
27 certain conveyance of lands by members of an Indian tribe because the conveyances
28 violated restrictions on alienation imposed by Congress. Id. at 445–46. The Government
8
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1 sued as the representative of the very Indian grantors whose conveyances it sought to
2 cancel because, while it was formally acting as trustee, the Government was in fact
3 asserting its own sovereign interest in the disposition of the Indian lands. Id. at 445. “Such
4 a result was possible because the Government assumed a fiduciary role over the Indians
5 not as a common-law trustee but as the governing authority enforcing statutory law.”
6 Jicarilla, 546 U.S. at 176.
7 It is undeniable that the Government “has charged itself with moral obligations of
8 the highest responsibility and trust” to Indians, Seminole Nation v. United States, 316 U.S.
9 286, 296–97 (1942), obligations “to the fulfillment of which the national honor has been
10 committed,” Heckman, supra, at 437. Nonetheless, this Court must follow Supreme Court
11 precedent. And the Supreme Court tells us that when “the Tribe cannot identify a specific,
12 applicable, trust-creating statute or regulation that the Government violated, . . . neither the
13 Government’s ‘control’ over [Indian land] nor common-law trust principles matter.”
14 United States v. Navajo Nation, 556 U.S. 287, 302 (2009). “The Government assumes
15 Indian trust responsibilities only to the extent it expressly accepts those responsibilities by
16 statute.” Jicarilla, 546 at 177 (emphasis added).
17 Here, Mexico ceded the land at issue in this case to the United States via the Treaty
18 of Guadalupe Hidalgo in 1848, four years before the 1852 Treaty was executed. See Map
19 of the United States Including Western Territories (scanned map), in NATIONAL ARCHIVES
20 CATALOG (1848), available at https://catalog.archives.gov/id/2127339 (last accessed
21 February 12, 2021). At that point, the United States took legal title to the land. This Court
22 has carefully examined the 1852 Treaty and supporting documentation in this case and
23 finds no evidence that the United States ever forfeited that title, or that Congress intended
24 the Government to hold the land in trust for the Western Apaches.
25 The 1852 Treaty certainly did not create a trust relationship. The parties merely
26 agreed that they would, at a later date, designate territorial boundaries. See Treaty with the
27 Apache art. 8, July 1, 1852, 10 Stat. 979 (stating that “the government of the United States
28 shall at its earliest convenience designate, settle, and adjust their territorial boundaries”).
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1 When courts have considered such language in the past, they have consistently held it did
2 not give rise to a trust relationship. For example, in Robinson v. Salazar, 838 F. Supp. 2d
3 1006, 1022 (E.D. Cal. 2012), the treaty at issue could “not be said to recognize Indian title”
4 because, by its terms, it did not “designate, settle, adjust, define, or assign limits or
5 boundaries to the Indians” and instead left “such matters to the future.” Id. The language
6 in the Robinson treaty is identical to the language in the 1852 Treaty at issue here. Id.
7 (treaty stating that “the aforesaid Government shall, at its earliest convenience, designate,
8 settle, and adjust their territorial boundaries”); see also Uintah, Uintah Ute Indians v.
9 United States, 28 Fed. Cl. 768, 789 (1993) (finding no trust created based on identical
10 language). And here, Plaintiff concedes that, while there were various efforts to designate
11 those boundaries, those efforts ultimately failed. (Doc. 47 at 87).4 The 1852 Treaty simply
12 provides no indication that the United States is holding the land in trust for the Apaches.5
13
4
14 Although Plaintiff provides the Court with maps indicating territorial boundaries,
the maps were created decades after the signing of the Treaty by the Smithsonian Institute
15 based on anthropologists’ “best interpretation of what the United States and the parties to
16 the 1852 treaties would have agreed to as [sic] the time as being Western Apache’s . . .
treaty territory.” (Doc. 47 at 87-88) (emphasis added). They do not change the conclusion
17 that no government document created a trust.
5
18 Plaintiff also references the Western Apaches’ aboriginal title to the land. See, e.g.,
(Doc. 7 at 7) (“[T]he Federal Government . . . attempted to ‘quiet’ Apaches’ reserved treaty
19 rights or aboriginal land title”). But Apache Stronghold would run into the same standing
20 issue if it sought to assert aboriginal title to the land. See United States v. Dann, 873 F.2d
1189, 1195 (9th Cir. 1989) (finding that “individual Indians do not even have standing to
21 contest a transfer of tribal lands” because “[t]he common view of aboriginal title is that it
is held by tribes”). Additionally, any aboriginal title the tribes may have had was
22
extinguished in 1873. See The San Carlos Apache Tribes of Arizona, et al. v. United States,
23 21 Ind. Cl. Comm 189, 219 (June 27, 1969) (findings of fact), available at
https://portal.azoah.com/oedf/documents/17-001-WQAB/SCAT-3-IndianClaimsComm’n
24
.1969.Bates.pdf (last accessed February 12, 2021). (“May 1, 1873 marks the date on which
25 the United States took from the Western Apache Indians their Indian title to all of their
aboriginal lands.”); see also United States v. Santa Fe Pac. R. Co., 314 U.S. 339, 347
26 (1941) (“The exclusive right of the United States to extinguish Indian title has never been
27 doubted. And whether it be done by treaty, by the sword, by purchase, by the exercise of
complete dominion adverse to the right of occupancy, or otherwise, its justness is not open
28 to inquiry in the courts.”) (internal quotations omitted).
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1 Finally, even assuming the 1852 Treaty did create a trust relationship, Congress
2 made clear its intent to extinguish that trust relationship by passing Section 3003 of the
3 NDAA, and this Court cannot disturb that decision. “It is well settled that an act of
4 [C]ongress may supersede a prior treaty, and that any questions that may arise are beyond
5 the sphere of judicial cognizance and must be met by the political department of the
6 government.” Thomas v. Gay, 169 U.S. 264, 271 (1898). “Plenary authority over the tribal
7 relations of the Indians has been exercised by Congress from the beginning, and the power
8 has always been deemed a political one, not subject to be controlled by the judicial
9 department of the government.” Lone Wolf v. Hitchcock, 187 U.S. 553, 565 (1903); see
10 also Cherokee Nation v. Hitchcock, 187 U.S. 294, 308 (1902) (“The power existing in
11 Congress to administer upon and guard the tribal property, and the power being political
12 and administrative in its nature, the manner of its exercise is a question within the province
13 of the legislative branch to determine, and is not one for the courts”); Winton v. Amos, 255
14 U.S. 373, 391 (1921) (“Congress has plenary authority over the Indians and all their tribal
15 relations, and full power to legislate concerning their tribal property.”)
16 In 1971, President Nixon authorized Oak Flat to be mined if it were first conveyed
17 to a private entity, and in 2014, Congress authorized that conveyance. (Doc. 7 at ¶ 21). This
18 Court’s hands are tied both by Congress and by the Constitution. Skoko v. Andrus, 638 F.2d
19 1154, 1158 (9th Cir. 1979) (“The courts cannot interfere with the administration of public
20 property as arranged by the Congress and the Executive, so long as constitutional
21 boundaries are not transgressed by either branch.”). The breach of trust claim must fail.
22 B. RFRA and First Amendment Free Exercise Clause (Substantial Burden)
23 Although the court cannot find any codified trust, the evidence before the Court
24 shows that the Apache peoples have been using Oak Flat as a sacred religious ceremonial
25 ground for centuries. See (Doc. 47 at 41) (“[T]he stories from my great-grandmother and
26 her people, [Oak Flat]’s where she came from. And so those stories that my grandfather
27 who taught my mother, who taught me, I am fourth generation of, I guess prisoners of
28 war.”). The spiritual importance of Oak Flat to the Western Apaches cannot be overstated
11
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1 and, in many ways, is difficult to put into words. The importance was immediately apparent
2 at the PI hearing in the sometimes-tearful testimony of Apache Stronghold members
3 Wendsler Nosie and Naelyn Pike. Nosie, co-founder and spokesperson of Apache
4 Stronghold and a member of the San Carlos Apache Tribe, testified that the Apache people
5 grew up with a “fear of military presence” from the U.S., which created a “suppressed way
6 of life.” (Doc. 47 at 58). The Apaches, armed with a promise from the U.S. that they “would
7 be able to return to [their] holy and sacred places if [they] conform to being assimilated,”
8 were deeply troubled by the forced assimilation. (Doc. 47 at 58). But the Apaches did
9 everything they could to remain connected to their spirituality, remaining “tied to the
10 earth,” and “intertwined with the earth, with the mother.” (Doc. 47 at 59).
11 Naelyn Pike, Nosie’s granddaughter, testified that, despite the turmoil and
12 threatened ouster, the Apaches have maintained their spiritual connection to the land.
13 Today, the Apache people believe “Usen, the Creator, has given life to the plants, to the
14 animals, to the land, to the air, to the water.” (Doc. 47 at 42). Because of this, the Apaches
15 view Oak Flat as a “direct corridor” to the Creator’s spirit. (Doc. 47 at 42). The land is also
16 used as a sacred ceremonial ground. Many of the young Apache women have a coming of
17 age ceremony, known as a “Sunrise Ceremony,” in which each young woman will “connect
18 her soul and her spirit to the mountain, to Oak Flat.” (Doc. 47 at 42, 48). Apache individuals
19 pray at the land and speak to their Creator through their prayers. The Apache people also
20 utilize the land’s natural resources, picking acorns, berries, cactus fruit, and yucca to use
21 for consumption. (Doc. 47 at 42). Because the land embodies the spirit of the Creator,
22 “without any of that, specifically those plants, because they have that same spirit, that same
23 spirit at Oak Flat, that spirit is no longer there. And so without that spirit of Chi’Chil
24 Bildagoteel, it is like a dead carcass.” (Doc. 47 at 42). If the mining activity continues,
25 Naelyn Pike testified, “then we are dead inside. We can’t call ourselves Apaches.” (Doc.
26 47 at 45). Quite literally, in the eyes of many Western Apache people, Resolution Copper’s
27 planned mining activity on the land will close off a portal to the Creator forever and will
28 completely devastate the Western Apaches’ spiritual lifeblood.
12
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1 In light of the Western Apaches’ deep connection to Oak Flat, Apache Stronghold
2 alleges in this lawsuit that conveying the land to Resolution Copper “puts government-
3 imposed coercive pressure on Plaintiffs to change or violate their religious beliefs” in
4 violation of the Free Exercise Clause of the First Amendment and the Religious Freedom
5 Restoration Act of 1993 (“RFRA”), 42 U.S.C. §§ 2000bb et seq. (Doc. 1 at ¶¶ 65, 73).
6 Defendants “do not question the sincerity of Plaintiff’s religious and historical connection
7 to the lands at issue” and instead argue “Plaintiff has not alleged a government action that
8 ‘substantially burdens’ their religious exercise.” (Doc. 18 at 15, 27).6
9 The Free Exercise Clause of the First Amendment provides that “Congress shall
10 make no law . . . prohibiting the free exercise [of religion].” U.S. Const., amend. I.
11 In Employment Division v. Smith, the Supreme Court held that the Free Exercise Clause
12 does not bar the Government from burdening the free exercise of religion with a “valid and
13 neutral law of general applicability.” 494 U.S. 872, 879 (1990). However, Congress
14 thereafter enacted the Religious Freedom Restoration Act (“RFRA”) because the Smith
15 decision “virtually eliminated the requirement that the government justify burdens on
16 religious exercise imposed by laws neutral towards religion.” 42 U.S.C. § 2000bb(a)(4)
17 (citing Smith, 494 U.S. at 872). Thus, the RFRA “created a cause of action for persons
18 whose exercise of religion is substantially burdened by a government action, regardless of
19 whether the burden results from a neutral law of general applicability.” Navajo Nation v.
20 U.S. Forest Serv., 535 F.3d 1058, 1068 (9th Cir. 2008) (citing 42 U.S.C. § 2000bb-1). In
21 other words, RFRA is limited to situations in which Congress has passed a religiously
22 6
Defendants also argue that construction on public land cannot, as a matter of law,
23 constitute a “substantial burden” on religion. (Doc. 18 at 30- 35). While this Court need
not reach this argument, the Court notes that the Ninth Circuit has indicated it would reject
24
this argument. In Navajo Nation, the Ninth Circuit assumed, without deciding, “that RFRA
25 applies to the government’s use and management of its land” and the dissenting opinion
explained that “[i]t is hardly an open question whether RFRA applies to federal land. . . .
26 There is nothing in the text of RFRA that says, or even suggests, that such a carve-out from
27 RFRA exists. No case has ever so held, or even suggested that RFRA is inapplicable to
federal land.” Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058, 1095 (9th Cir. 2008)
28 (Fletcher, J., dissenting).
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1 neutral law of general applicability, but nonetheless must provide exemptions under that
2 law for certain religious practices if not doing so would substantially burden them.
3 The law at issue here here—Section 3003 of the NDAA—is a neutral law of general
4 applicability. It merely authorizes the exchange of land with a mining company, and,
5 although it will affect the Apaches’ religious practices deeply, that is not its purpose.7 In
6 the Ninth Circuit, where courts consider a neutral law of general applicability, Free
7 Exercise violations are found only in very limited situations. “Under RFRA, a ‘substantial
8 burden’ is imposed only when individuals are forced to choose between following the tenets
9 of their religion and receiving a governmental benefit (Sherbert) or coerced to act contrary
10 to their religious beliefs by the threat of civil or criminal sanctions (Yoder).” Navajo
11 Nation, 535 F.3d at 1058 (emphasis added) (citing Sherbert v. Verner, 374 U.S. 398 (1963)
12 and Wisconsin v. Yoder, 406 U.S. 205 (1972)). In Yoder, “the application of the compulsory
13 school-attendance law” to the Amish plaintiffs violated the RFRA because it “affirmatively
14 compel[led them], under the threat of criminal sanction, to perform acts undeniable at odds
15 with fundamental tenets of their religious beliefs.” Id. (citing Yoder, 406 U.S. at 218). In
16 Sherbert, the plaintiff refused to work on Saturdays, her faith’s day of rest, but was denied
17 government unemployment benefits for failing to accept work without good cause. Id.
18 (citing Sherbert, 374 U.S. at 399). The state’s conditioning of unemployment benefits on
19 the plaintiff’s ability to work on Saturdays unconstitutionally forced her “to choose
20 between following the precepts of her religion and forfeiting benefits.” Sherbert, 374 U.S.
21 at 404. In Navajo Nation, the Ninth Circuit held that “[a]ny burden imposed on the exercise
22 of religion short of that described by Sherbert and Yoder is not a ‘substantial burden’ within
23 the meaning of RFRA, and does not require the application of the compelling interest test
24 set forth in those two cases.” Navajo Nation, 535 F.3d at 1070.8
25
7
Apache Stronghold argues the law is in fact intentionally discriminatory. See (Doc.
26 1 at 28). The Court considers that argument more thoroughly infra Section (III)(C).
8
27 The Court is in receipt of the Amicus Brief filed in this case (Doc. 56), and has
considered the arguments and cases cited therein. The Brief urges the Court to find that the
28 limited Yoder/Sherbert scenarios merely “constitute a floor for substantial burden claims,
14
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1 The facts of this case are similar to those of Navajo Nation. There, the Government
2 released plans to use artificial snow containing treated sewage water to expand the Arizona
3 Snowbowl Ski Resort, located within sacred government-owned Navajo land in northern
4 Arizona. Id. at 1063. The plaintiffs, the Navajo Tribe and its members, argued the use of
5 the sewage water would “spiritually contaminate the entire mountain and devalue their
6 religious exercises” in violation of the Free Exercise Clause. Id. The Ninth Circuit held that
7 the plaintiffs could not maintain an RFRA action because they could not show “substantial
8 burden.” Id. The Ninth Circuit acknowledged the land’s “long-standing religious and
9 cultural significance to Indian tribes.” Id. at 1064. The Navajo people believed the
10 mountains were “a living entity,” conducted religious ceremonies on them, and collected
11 plants, water, and other materials from them. Id. Nonetheless, bound by precedent, the
12 Ninth Circuit held “there is no showing the government has coerced the Plaintiffs to act
13 contrary to their religious beliefs under the threat of sanctions, or conditioned a
14 governmental benefit upon conduct that would violate the Plaintiffs’ religious beliefs, there
15 is no ‘substantial burden’ on the exercise of their religion.” Id. at 1063; see also, e.g.,
16 Snoqualmie Indian Tribe v. F.E.R.C., 545 F.3d 1207, 1213–15 (9th Cir. 2008) (rejecting
17 tribe’s RFRA claim because “[t]he Tribe’s arguments that the dam interferes with the
18
19 not a ceiling for the type of government coercion that could lead to a finding of substantial
20 burden.” (Doc. 56 at 24). However, all of the cases cited in the brief interpret what is
required for “substantial burden” under the Religious Land Use and Institutionalized
21 Persons Act (“RLUIPA”), which applies to prisoners’ rights and state land use laws, not
the RFRA. And while it is true that each statute uses “the same standard,” see Holt v.
22
Hobbs, 135 S. Ct. 853, 860 (2015), this merely means that both statutes require the
23 government to pass a strict scrutiny analysis where the law in question imposes a
“substantial burden” on religious rights. What constitutes a “substantial burden,” however,
24
has evolved differently under each statute. See Navajo Nation, 535 F.3d at 1078 (expressly
25 rejecting plaintiffs’ reliance on RLUIPA cases because “instead the ‘substantial burden’
question must be answered by reference to the Supreme Court’s Pre-Smith jurisprudence,
26 including Sherbert and Yoder, that RFRA expressly adopted. Under that precedent, the
27 Plaintiffs have failed to show a ‘substantial burden’ on the exercise of their religion”).
Under current Ninth Circuit RFRA precedent, Section 3003 does not impose a substantial
28 burden.
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1 ability of tribal members to practice religion are irrelevant to whether the hydroelectric
2 project either forces them to choose between practicing their religion and receiving a
3 government benefit or coerces them into a Catch-22 situation: exercise of their religion
4 under fear of civil or criminal sanction.”).
5 To be sure, the Navajo Nation court found no substantial burden in part because
6 there were “no plants, springs, natural resources, shrines with religious significance, or
7 religious ceremonies that would be physically affected by the use of such artificial snow.
8 No plants would be destroyed or stunted; no springs polluted; no places of worship made
9 inaccessible, or liturgy modified.” Navajo Nation, 535 F.3d at 1063. Instead, “[t]he only
10 effect of the proposed upgrades is on the Plaintiffs’ subjective, emotional religious
11 experience.” Id. at 1070. And this Court recognizes that the burden imposed by the mining
12 activity in this case is much more substantive and tangible than that imposed in Navajo
13 Nation—the land in this case will be all but destroyed to install a large underground mine,
14 and Oak Flat will no longer be accessible as a place of worship. See, e.g., FEIS at 84
15 (finding that the “[c]onstruction and operation of the mine would profoundly and
16 permanently alter . . . Chí’chil Biłdagoteel (Oak Flat) . . . through anticipated largescale
17 geological subsidence”); FEIS at 25 (“the proposed mine would disturb large areas of
18 ground and potentially destroy native vegetation”).
19 However, the Ninth Circuit also explained that the Supreme Court Lyng decision
20 would have compelled it to reach the same result even if the use of artificial snow would
21 “virtually destroy the . . . Indians’ ability to practice their religion.” Navajo Nation, 535
22 F.3d at 1072. In Lyng, the plaintiffs, Indian tribes, challenged the U.S. Forest Service’s
23 approval of plans to construct a road on a ceremonial tribal ground. Lyng v. Northwest
24 Indian Cemetery Protective Ass’n, 485 U.S. 439 (1988). The tribes alleged the construction
25 would interfere with their free exercise of religion by disturbing a sacred area. Id. at 442–
26 43. The area was an “integral and indispensable part” of the tribes’ religious practices, and
27 a Forest Service study concluded the construction “would cause serious and irreparable
28 damage to the sacred areas.” Id. at 442 (citations and internal quotation marks omitted).
16
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1 Nonetheless, the Supreme Court rejected the Indian tribes’ Free Exercise Clause challenge.
2 The Court held that, although the government’s plan would “diminish the sacredness” of
3 the Indian land and would “interfere significantly” with their ability to practice their
4 religion, it did not impose a “heavy enough” burden to violate their Free Exercise Clause
5 rights. Id. at 447-49. Because the plaintiffs were not “coerced by the Government’s action
6 into violating their religious beliefs” nor did the “governmental action penalize religious
7 activity by denying [the plaintiffs] an equal share of the rights, benefits, and privileges
8 enjoyed by other citizens,” they could not make out an RFRA claim. See id. at 449. Even
9 where land is physically destroyed, the government action must still fall within those two
10 narrow situations to make out a Free Exercise violation under RFRA.9
11 Apache Stronghold runs into the same problem as plaintiffs in both Navajo Nation
12 and Lyng, each of which is still good law and binding upon this Court: Plaintiff has not
13 been deprived a government benefit, nor has it been coerced into violating their religious
14 beliefs. The Court does not dispute, nor can it, that the Government’s mining plans on Oak
15 Creek will have a devastating effect on the Apache people’s religious practices. To that
16 same end, the Western Apache peoples no doubt derive great “benefits” from the use of
17 Oak Flat, at least in the common sense of the word. However, Oak Flat does not provide
18 the type of “benefit” required under RFRA jurisprudence: It isn’t something the
19 Government gave to the Western Apaches, like unemployment benefits, and then took
20 away because of their religion. Similarly, building a mine on the land isn’t a civil or
21 criminal “sanction” under the RFRA. See SANCTION, Black’s Law Dictionary (11th ed.
22 9
Plaintiff urges this Court to apply what it considers a “much more lenient test to
23 prove substantial burden than the Navajo Nation test” as set forth in Little Sisters of the
Poor Saints Peter and Paul Home, 140 S.Ct. 2367 (2020). (Doc. 30 at 12-14). Plaintiff
24
urges the Court to instead consider whether “the government puts substantial pressure on
25 [the Apaches] to substantially modify [their] behavior and to violate [their] beliefs.” (Doc.
30 at 13). But the Little Sisters case did not abrogate the test set forth in Lyng and Navajo
26 Nation—it did not reconsider the “substantial burden” standard at all. And in fact, the Ninth
27 Circuit has applied the Yoder/Sherbert framework set forth in Lyng and Navajo Nation
recently as July 20, 2020. See, e.g., Fazaga v. Fed. Bureau of Investigation, 965 F.3d 1015,
28 1061 (9th Cir. 2020).
17
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1 2019) (defining a “sanction” as a “provision that gives force to a legal imperative by either
2 rewarding obedience or punishing disobedience”). “Just as the Ninth Circuit and other
3 courts must follow Lyng until the Supreme Court instructs otherwise, this Court must do
4 the same.” Standing Rock Sioux Tribe v. U.S. Army Corps of Eng’rs, 239 F. Supp. 3d
5 77, 94 (D.D.C. 2017). Accordingly, Plaintiff’s RFRA and Free Exercise claims must fail.10
6 C. First Amendment Free Exercise Clause (Intentional Discrimination)
7 At the PI hearing, Plaintiff indicated that “for the purposes of the preliminary
8 injunction, the only two issues before the Court . . . are the Treaty rights and the serious
9 question of who owns that land, and the Religious Freedom Restoration Act rights that
10 have been violated.” (Doc. 47 at 80). However, the Court notes that Plaintiff has not
11 demonstrated a likelihood of success on, or serious questions going to, the merits of its
12 other claims.
13 Plaintiff alleges Section 3003 intentionally discriminates against the Western
14 Apaches because the Government “designed” the land conveyance “in a way that made it
15 impossible for Plaintiffs to comply with [] their religious beliefs” and further promulgated
16 the sale “in order to suppress the religious exercise of Plaintiff Apache Stronghold and its
17 Western Apache members.” (Doc. 1 at ¶ 84).
18
19
10
20 Plaintiff cites Burwell v. Hobby Lobby for the proposition that the RFRA cannot
be read “as restricting the concept of the ‘exercise of religion’ to those practices specifically
21 addressed in our Pre-Smith decisions.” 573 U.S. 682, 714 (2014); see also (Doc. 47 at 12)
(Plaintiff arguing that the Hobby Lobby decision “admonished the lower courts not to
22
narrowly follow the ‘specific’ holdings of its pre-Smith ‘ossified’ cases to limit religious
23 believers’ RFRA claims”). But in Hobby Lobby, the Court considered the discrete issue of
whether corporate entities could be considered “persons” under the RFRA, not the type of
24
government activity that would cause a “substantial burden.” See Hobby Lobby, 573 U.S.
25 at 715-716 (“[T]he results would be absurd if RFRA merely restored this Court’s pre-Smith
decisions in ossified form and did not allow a plaintiff to raise a RFRA claim unless that
26 plaintiff fell within a category of plaintiffs one of whom had brought a free-exercise claim
27 that this Court entertained in the years before Smith.”). The Hobby Lobby decision did not
amend the previous “substantial burden” standard set forth in Lyng, and it does not change
28 that analysis here.
18
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1 As explained above, the Free Exercise Clause provides that “Congress shall make
2 no law . . . prohibiting the free exercise [of religion],” U.S. Const., amend. I. The right to
3 freely exercise one’s religion, however, “does not relieve an individual of the obligation to
4 comply with a ‘valid and neutral law of general applicability on the ground that the law
5 proscribes (or prescribes) conduct that his religion prescribes (or proscribes).’” Emp. Div.,
6 Dep’t of Human Res. of Or. v. Smith, 494 U.S. 872, 879 (1990) (quoting United States v.
7 Lee, 455 U.S. 252 (1982) (Stevens, J., concurring in judgment)). Under the governing
8 standard, “a law that is neutral and of general applicability need not be justified by a
9 compelling governmental interest even if the law has the incidental effect of burdening a
10 particular religious practice.” Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah,
11 508 U.S. 520, 531 (1993).
12 In assessing neutrality and general applicability, courts evaluate both “the text of
13 the challenged law as well as the effect . . . in its real operation.” Stormans, Inc. v. Wiesman,
14 794 F.3d 1064, 1076 (9th Cir. 2015) (ellipsis in original) (internal quotation marks
15 omitted). “A law lacks facial neutrality if it refers to a religious practice without a secular
16 meaning discernable from the language or context.” Lukumi, 508 U.S. at 533. Even if a law
17 is facially neutral, it may nonetheless fail the neutrality test if “[t]he record . . . compels the
18 conclusion that suppression of [a religion or religious practice] was the object of the
19 ordinances.” Id. at 534, 542 (emphasis added); see also Selecky, 586 F.3d at 1130 (“[I]f the
20 object of a law is to infringe upon or restrict practices because of their religious motivation,
21 the law is not neutral.”) (emphasis added) (quoting Lukumi, 508 U.S. at 533).
22 The Southeast Arizona Land Exchange and Conservation Act is facially neutral, and
23 Plaintiff has provided no evidence of any discriminatory intent behind its passage. At the
24 PI hearing, when asked what evidence of discriminatory intent Apache Stronghold has,
25 Plaintiff’s counsel could not directly answer the question. (Doc. 47 at 91-92). Instead,
26 Plaintiff argued Apache Stronghold’s members “presented repeatedly before the
27 introduction of the National Defense Authorization Act Section 3003 rider, about the
28 central religious importance of this place, Oak Flat” but that “there’s no deliberate regard
19
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1 for it” in the Act, “much less an utterance that there’s a compelling government interest”
2 to convey the land to Resolution Copper. (Doc. 47 at 92). But a lack of deliberate regard
3 for the Apaches religious ties to the land, as disappointing and inappropriate as it may be,
4 in no way shows that the law was passed with the objective to discriminate against them.
5 Pers. Adm’r of Massachusetts v. Feeney, 442 U.S. 256, 272 (1979) (“[E]ven if a neutral
6 law has a disproportionately adverse effect . . ., it is unconstitutional under the Equal
7 Protection Clause only if that impact can be traced to a discriminatory purpose.”).
8 Because Section 3003 is neutral, Plaintiff is unlikely to succeed on its Intentional
9 Discrimination claim. A neutral law need only be “rationally related to a legitimate
10 government purpose.” Stormans, Inc. v. Wiesman, 794 F.3d 1064, 1075-76 (9th Cir. 2015).
11 The Court finds, at this juncture, that the governmental interest in supporting economic
12 development of mineral resources is likely more than sufficient to withstand rational basis
13 review. See, e.g., Merrifield v. Lockyer, 547 F.3d 978, 991 (9th Cir. 2008) (noting the
14 “relatively easy standard of rational basis review”). Accordingly, Plaintiff is unlikely to
15 succeed on the Free Exercise Clause Intentional Discrimination claim.
16 D. Due Process and Petition Clause Claims
17 i. Standing
18 Plaintiff’s Due Process and Petition Clause claims are based only on the publication
19 of the FEIS. (Doc. 47 at 80). As an initial matter, Plaintiff likely lacks standing to contest
20 the publication of the FEIS because Plaintiff cannot show that a favorable decision from
21 this Court would redress its alleged injury. As the Court stated in its Order denying the
22 TRO, Plaintiff’s alleged injury stems from the land exchange, not the FEIS publication.
23 (Doc. 13 at 3). But the land exchange, and subsequent mining activity, can still occur even
24 if the FEIS was not published or is somehow otherwise rescinded. See 16 U.S.C. § 539p(B)
25 (stating that the FEIS “shall be used as the basis for all decisions under Federal law related
26 to the proposed mine and the Resolution mine plan of operations” but not requiring that it
27 be published before the exchange can occur). Although the NDAA indicates that the land
28 exchange would occur within 60 days of the FEIS publication, Plaintiff has not shown the
20
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1 publication was a requirement to proceed with the land exchange. From the plain text of
2 the FEIS, it doesn’t appear so. Accordingly, Apache Stronghold hasn’t demonstrated its
3 standing to bring the Due Process and Petition Clause claims.
4 ii. Merits
5 Even if Apache Stronghold had standing to assert the Due Process and Petition
6 Clause claims, it is unlikely to succeed on the merits of those claims. Per Plaintiff’s own
7 timeline, on January 4, 2021, Reuters reported that the Forest Service was set to publish
8 the FEIS on January 15, 2021. (Doc. 1 at 12). Plaintiff alleges this eleven-day window did
9 not provide sufficient time for Plaintiff to challenge the FEIS publication and protect their
10 “treaty rights, property rights, religious freedom rights, and other legal rights.” (Doc. 1 at
11 ¶ 44). But Plaintiff had much longer than eleven days to contest the FEIS and land
12 exchange.
13 “The Due Process Clause of the Fifth Amendment prohibits the United States . . .
14 from depriving any person of property without ‘due process of law.’” Dusenbery v. United
15 States, 534 U.S. 161, 167 (2002); see also U.S. Const. amend. XV. “[D]ue process requires
16 the government to provide ‘notice reasonably calculated, under all the circumstances, to
17 apprise interested parties of the pendency of the action and afford them an opportunity to
18 present their objections.’” Jones v. Flowers, 547 U.S. 220, 226 (2006) (quoting Mullane v.
19 Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)). Similarly, the First
20 Amendment Petition Clause protects “the right of the people . . . to petition the Government
21 for a redress of grievances.” U.S. Const. amend. I. However, the Petition Clause “does not
22 impose any affirmative obligation on the government to listen, to respond to or . . . to
23 recognize” those grievances. Smith v. Ark. State Highway Emps., Local 1315, 441 U.S.
24 463, 465 (1979). Plaintiff is unlikely to succeed on the Due Process and Petition Clause
25 claims because it received sufficient notice of, and opportunity to contest, the FEIS and the
26 land exchange itself.
27 “Publication in the Federal Register is legally sufficient notice [under the Fifth
28 Amendment] to all interested or affected persons regardless of actual knowledge or
21
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1 hardship resulting from ignorance.” State of California ex rel. Lockyer v. F.E.R.C., 329
2 F.3d 700, 707 (9th Cir. 2003) (citing Camp v. U.S. Bureau of Land Mgmt., 183 F.3d 1141,
3 1145 (9th Cir.1999)); see also 44 U.S.C. § 1507 (providing that Federal Register
4 publication generally “is sufficient to give notice of the contents of the document to a
5 person subject to or affected by it”). Here, Defendants—specifically the Forest Service—
6 published the “Notice of intent to prepare an Environmental Impact Statement for approval
7 of a plan of operations for the Resolution Copper Project and associated land exchange;
8 request for comments; and notice of public scoping” on the Federal Register on March 18,
9 2016. See Federal Register, Tonto National Forest; Pinal County, AZ; Resolution Copper
10 Project and Land Exchange Environmental Impact Statement, available at
11 https://www.federalregister.gov/documents/2016/03/18/2016-05781/tonto-national-forest
12 -pinal-county-az-resolution-copper-project-and-land-exchange-environmental (last visited
13 January 26, 2021). The Forest Service received comments for two months following
14 publication. Commentors were invited to send written comments by P.O. box or email,
15 submit comments on USDA’s Resolution Copper website, submitting verbal messages to
16 a phone number, or submitting written or oral comments during open house held by the
17 Forest Service on four separate dates.
18 Although January 4th may have been the first notice of the January 15th date of
19 publication, it is not the first notice Plaintiff had of the land exchange. To the contrary,
20 Apache Stronghold alleges its members “have repeatedly pleaded with Defendants directly
21 in person and in correspondence, publicly and privately—including numerous appearances
22 and presentation of testimony before Congress over the past several years—and
23 participating in various federal agency and Forest Service administrative processes,
24 asserting their Apache land rights and requesting Defendants to comply with their
25 obligations and to recognize and honor their Apache land rights.” (Doc. 1 at ¶ 11). And at
26 the PI hearing, Wendsler Nosie presented a book, over an inch thick, detailing Apache
27 Stronghold’s “Comments on the Resolution Copper Project and Land Exchange Draft
28 Environmental Impact Statement submitted by the Apache Stronghold.” (Doc. 47 at 63).
22
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1 Nosie further testified that he presented testimony to Congress before the passage of the
2 NDAA “many “[m]any times.” (Doc. 47 at 65). In fact, Nosie “visited all of the
3 Congressional agencies, leaders, you know, to express the concerns and positions of the
4 tribe,” testimony which was “specifically in regard to the religious importance of Oak Flat
5 and what was being proposed in terms of a copper mine.” (Doc. 47 at 65). Although
6 Congress disagreed with, or perhaps even disregarded, Apache Stronghold’s pleas, Apache
7 Stronghold was not denied a voice—at least not under the law. Plaintiff is therefore
8 unlikely to succeed on its Due Process or Petition Clause claims.
9 IV. CONCLUSION
10 For the foregoing reasons, Plaintiff has not identified a likelihood of success on, or
11 serious questions going to, the merits of its claims. Accordingly, the Court need not address
12 the remaining Winter factors. The Court cannot grant the preliminary injunction requested.
13 IT IS THEREFORE ORDERED that Plaintiff’s Motion for Temporary
14 Restraining Order and Preliminary Injunction (Doc. 7) is denied.
15 Dated this 12th day of February, 2021.
16
17 Honorable Steven P. Logan
United States District Judge
18
19
20
21
22
23
24
25
26
27
28
23
ER023
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_________________
Apache Stronghold, )
)
Plaintiff, ) CV-21-0050-PHX-SPL
)
vs. ) Phoenix, Arizona
) February 3, 2021
United States of America, et al.,) 9:09 a.m.
)
Defendants. )
_________________________________)
ER024
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2
1 A P P E A R A N C E S
14
15
16
17
18
19
20
21
22
23
24
25
ER025
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3
6 WITNESSES
9 Naelyn Pike 40
11
12
13 EXHIBITS
20 DEFENDANTS' EXHIBITS:
23
24
25
ER026
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4
1 P R O C E E D I N G S
5 preliminary injunction.
10 Stronghold.
19 Chiricahua.
21 Welch.
24 Apache Stronghold.
ER027
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5
4 Defense.
13 saying.
ER028
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6
5 conclusions of law.
11 process.
21 as the response and the need for our reply to create the basis
ER029
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7
1 was not possible. I can get them into the court before close
4 that.
6 your name. For someone with a middle name that begins with V,
12 you ever find yourself in this position again where you have
ER030
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8
1 disappoint, much less frustrate, any judge, and it's the first
3 sincerely apologize.
8 that you would like to place on the record? If you do, I will
9 give you ten minutes to do that, and you can remain in counsel
17 not only contracting the virus, but spreading the virus, and
ER031
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9
9 might have been early Tuesday morning, like maybe 5:30 in the
14 Lobby case and the Little Sisters of the Poor case, Your Honor,
15 and its regard of the Third Circuit's test that was used by the
24 Restoration Act.
ER032
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10
7 need to make sure that I can take notes and understand what you
ER033
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11
1 Little Sisters.
18 Service, a Ninth Circuit 2008 case at 535 F.3d 1058, 1070, and
19 cert was denied by the U.S. Supreme Court in 2009 at 556, 1281.
ER034
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12
1 And the Smith cases are -- the Smith case is the Oregon
4 Protective Association.
9 RFRA claims.
ER035
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13
5 Act by the terms of the law, and the ultimate planned and
11 his beliefs.
13 U.S. case, 930 F.3d 543 at 572, the Third Circuit's 2019
ER036
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14
4 Poor test.
9 practice itself.
21 Centro at 429.
ER037
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15
7 to those lands that are within the historic district, does not
18 and runs with the land since time immemorial and that is
23 minutes?
ER038
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16
8 Plaintiff waited more than six years after the law was
12 claim.
16 relief.
18 merits to the RFRA claim, I will also discuss that, unless Your
23 religious exercise.
ER039
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17
9 objectors.
12 and down and walking out of the courtroom and walking back in
18 that you could have brought some bottled water into the
19 courtroom.
ER040
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18
4 circuit as well.
11 excuse me, for that case is 545 F.3d, and I would like to cite
ER041
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19
10 overturn Lyng.
13 corporation, Hobby Lobby, could sue under RFRA, and the Court
17 that protection.
ER042
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20
2 that case forced the company to pay what the Court called an
5 religious exercise.
16 unless Your Honor has questions, and turn briefly to the other
17 two factors.
22 irreparable.
ER043
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21
1 delaying and waiting some years since the law was passed also
3 claiming.
6 30 seconds. Go ahead.
9 passed the law that led to this, you know, land exchange in
ER044
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1 received.
16 do, this gentleman that just stood up, just sit in his chair.
17 Make sure you have a microphone. Please stand and raise your
23 DIRECT EXAMINATION
24 BY MR. LEVENSON:
ER045
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1 A. Good morning.
9 A. I am.
17 Arizona, principally the San Carlos Apache tribe and the White
24 of different companies.
ER046
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5 Apache tribe.
7 especially the White Mountain Apache tribe, but also the San
11 Apache tribe.
15 A. I have.
20 President Pierce.
ER047
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10 the west side of the Rio Grande. The western bands, and so,
13 Q. And did this Treaty concern land including the land we are
ER048
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2 Q. But just to clarify, the Treaty land -- the lands that the
6 Q. You heard the lawyer for the United States refer to Oak
9 which you are aware, make Oak Flat the property of the United
10 States?
23 A. I am.
ER049
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11 Article 9.
16 Exhibit 1?
20 Mr. Nixon.
23 you.
25 right.
ER050
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4 please.
8 means.
20 asking, Your Honor, is that the parties agreed and the Apaches
ER051
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1 of the comings and goings within their lands, and they were
9 the Apaches were very glad to sit and treat with the United
10 States of America.
16 approve of.
ER052
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3 tribes, both eastern Apaches on the east side of the Rio Grande
5 the territories.
10 groups in order to evict Apaches from the lands that had been
13 legislative branch.
18 frankly.
22 prevented from doing so. This led to what gets called the
ER053
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6 Mexico.
8 and made the Apache people lose a great deal -- many Apaches,
10 States.
12 you.
15 DIRECT EXAMINATION
16 BY MR. LEVENSON:
21 A. No.
ER054
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5 A. It is.
7 in terms of, you know, do they need access or does the land
13 Creator put things the way they are for a number of very good
ER055
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13 that.
20 BY MR. LEVENSON:
24 Western Apache?
ER056
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1 especially the Western Apache people who make use of, pray to
4 the initial drilling for prospecting for this ore body, and
10 practices?
14 powers that are associated with and sort of dwell within those
15 places.
18 the way they are. And so it's important for Apaches to be able
ER057
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5 little slower.
11 CROSS-EXAMINATION
12 BY MR. SCHIFMAN:
14 here. The first is just to confirm that you are not trained as
16 A. That's correct.
18 A. I did not.
20 that correct?
ER058
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2 that correct?
7 property disputes?
12 BY MR. SCHIFMAN:
ER059
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17 the findings of fact for Docket 22-D dated or decided June 22nd
18 1969?
19 BY MR. SCHIFMAN:
21 A. Okay.
25 A. Yes.
ER060
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2 correct?
3 A. Yes.
5 left side, is, quote, the Western Apache and each group and
7 A. Yes.
9 A. Yes.
14 United States took from the Western Apache their Indian title
18 territory.
24 on title.
ER061
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39
3 on page 219.
7 102 says that as of 1873, quote, the United States took from
10 A. Yes.
11 Q. Okay.
14 the doctor?
16 REDIRECT EXAMINATION
17 BY MR. LEVENSON:
24 A. Emphatically, yes.
ER062
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8 Q. All right.
12 witness.
15 name?
20 DIRECT EXAMINATION
21 BY MR. NIXON:
22 Q. Naelyn, can you please tell us and tell the Judge how you
ER063
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24 Q. Naelyn, can you do that anywhere else other than Oak Flat?
ER064
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3 the land, to the air, to the water. And even what's underneath
4 it is a living being.
9 anywhere else.
13 yucca for our rope or for our wickiup, where we build our
16 to show the people that we are able to provide, and that's what
19 because they have that same spirit, that same spirit at Oak
ER065
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1 and they get heard by the Creator. Everything that I was able
3 that spirit.
5 we have to physically show the people, this is how you tie the
6 rope, this is how you pick the acorn, and it gives us a sense
11 people we are today, are through the land base and through the
12 spirit of the Creator and of the red Ga'an and of the plants
ER066
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2 And that's what brings that good medicine. That's what brings
3 the spirit into our homes, into our hearts, into our mind and
4 our soul, is the spirit within the acorn, within the (speaking
5 Apache) within the rope of the yucca, within the cedar, within
10 eventually create two miles wide, would you consider that the
11 loss of a benefit?
12 A. Yes, deeply.
22 of the family.
ER067
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6 creation story, she came from underneath the ground, and she is
12 life and what it is for our future as a people. And when these
17 past, present, who have had their Sunrise Ceremony there. The
19 from them, stripped away from them, and that's only that.
23 Nahgosan, the earth, and to Oak Flat, then we are dead inside.
ER068
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2 from us. It's gone. And that's why we have to fight so hard,
8 defense counsel and for the Court, why don't we just take a
10 okay?
11 A. Okay.
13 Oak Flat. And these are photographs from one of the ceremonies
20 BY MR. NIXON:
ER069
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1 you?
5 family took the Mount Graham water from Dzil Nchaa Si'An and
6 the water from Oak Flat to gift it to them so that they have
11 that there --
13 yourselves, 4-2?
16 BY MR. NIXON:
17 Q. Can you tell the Court and defense counsel what that
ER070
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1 the story.
3 her soul and her spirit to the mountain, to Oak Flat. And that
11 happening there?
12 A. So in this photo, it's of that same day, and now you see
15 becoming a woman.
17 tribe in San Carlos, and they come and they sing. They sing
18 the songs for her. They dance and participate and they pray.
20 partner.
ER071
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2 going to be doing and the role she is going to take because she
3 blesses the people. Her and the spirit that is within her.
7 which are all members of the San Carlos Apache tribe here at
8 Oak Flat.
10 Go ahead, sir.
11 BY MR. NIXON:
13 marked Plaintiff Exhibit 4-5, can you describe for us who that
19 And all the tools that were used here in the ceremony
20 like the teepee and the trees that -- it's like four trees.
22 side to side like, and those all came from Oak Flat. And
24 that we are able to use for the ceremony comes from Chi'chil
ER072
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2 into the woman she is going to be from now on. And this is my
7 the mountains, and the spirit of the red Ga'an is there at Oak
8 Flat, and what they do is they bless her, and her Godfather
9 bless her, and they mold that into her. It is like glue, you
14 closed throughout this whole process when they paint her. And
15 when the God -- at the last song, the Godmother will have a
16 handkerchief and wipe her eyes. And in that moment when she
17 opens her eyes, she's a new woman, she's a new girl. That
18 spirit is in her. That's why she is and that's why she will be
24 may be misnumbered in the set that was sent, it may also have
25 4-5 on it.
ER073
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3 Mr. Schifman doesn't have the document, I'm pretty sure he will
4 let me know.
6 BY MR. NIXON:
11 second day in the night. And the girls behind her show that --
12 they also had their Sunrise Ceremony, and so these girls dance
15 messengers, come from the mountains, and they dance and they
16 bless the people and they bless her, and that's what they
17 bring.
19 because what happens is that the Ga'an will come and do their
20 prayers, and then when they are done finishing their prayers,
24 Q. So one last question. When you mention the Ga'an and you
ER074
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4 those spirits come from the mountain. They come from the
5 ground, and they come into what -- the people in the physical
6 world, which would be the men, the five men. And specifically,
7 the red Ga'an has made its imprint, its spirit on Chi'chil
10 to help us understand.
13 A. Yes.
19 Oak Flat. But to us, we call it Ga'an Canyon, because when the
20 settlers were first coming in, they felt -- they heard and they
21 would see the spirit of the Ga'an people, and they were scared
22 because they have these huge crowns, and they are painted and
25 they would try to come in is, oh, those are devils, and they
ER075
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9 cannot be destroyed.
12 10:45.
18 parties present when the court last closed are present again.
22 Ms. Pike know that the Court or defense counsel may have some
ER076
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3 Honor.
23 DIRECT EXAMINATION
24 BY MR. NIXON:
ER077
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19 with our tribe. And so I had returned back to Oak Flats and
21 ago.
24 please?
ER078
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1 involved with the argument on day one, was the NEPA, the
3 States to follow the NEPA process. And for several years, you
4 know, we did have the Tonto National Forest agreeing with the
5 tribe, that it was very -- that the land was very important to
11 the Apaches had years ago. In the early '60s, when I was
13 dad -- when they were alive, you know, they talked about the
23 up in that.
25 uncles that one day I will return -- and they used to cry and
ER079
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1 laugh and say, you know, when you do, we will go with you.
16 interrupting you.
22 complete stop and not knowing what the next day was to be and
ER080
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1 not being really informed and well informed what our people was
7 grandfather, you know, it was hard to tell the child what you
10 the fear -- because our parents still had the fear of military
11 presence, and they felt that with Indian health and BIA because
14 happening to them.
24 call them Ga'an, but they are deities. They are actually
25 spirit people.
ER081
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3 documents, and, you know, having it all before me and see what
12 ago, do you believe that your relatives from the past were
24 what was spiritual, from the wind to the trees to the earth to
25 what was underneath. And they knew how the spirituality tied
ER082
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3 people.
7 really mean people, then the outcome would have been different,
10 of what Naelyn was talking about. And it contains the key time
11 immemorial how the world came to be and how the oldest religion
13 And I tell many people around the world, when they are
15 different than the Old Testament or the one before the old
20 that are Ga'an people, they are a crucial part to our personal
23 But in this place, it's the only area that has this
24 place, and that's why it's so crucial, like Naelyn was talking
ER083
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2 that experience and know how the federal government works, you
5 afforded that?
7 and prior to the tribe, of how much our people relied on the
13 gave a lot of trust into this and gave information and was, you
16 So, you know -- and that's one of the big reasons why
18 holy places that are tied -- that we are tied to. Because if
22 copper under Mount Sinai and they did that to it, what would it
ER084
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2 it's always been spiritual. And we had been told that one of
4 our religion.
6 Service, you know, they know all of these things. They know.
7 And like for me living there a whole year, the federal policies
8 for the Forest Service says you have to vacate out of there in
9 13 days. And I have been there. You know, they know it.
10 And when this past summer, when there was a huge fire
11 and they were vacating everybody, the only one they didn't
12 vacate was me. Because they know what I was doing there, to
16 BY MR. NIXON:
17 Q. Dr. Nosie, you mentioned that the Forest Service knew and
22 A. Yes.
ER085
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3 Honor.
4 This document, can you read the cover sheet you have
5 there?
7 A. No. No, you did not ask me. I brought it. Chi'chil
15 administrative processes.
21 Court.
ER086
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1 --
4 THE COURT: Mr. Nixon, I note this was signed off, the
15 this was just to point out that indeed Apache Stronghold had
25
ER087
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1 BY MR. NIXON:
3 these things, did you mean also before the National Defense
9 time, not getting too much of anything back from the Forest
13 Q. And had you had any opportunity and did you present any
23 mine?
ER088
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1 future children.
3 would also hurt the region, especially when the exemption was
4 passed and didn't allow Arizona to see the total report, the
5 pros and cons and for Arizona to make -- Arizona people to make
11 Nations?
13 father, and my father through his father Willy, and his father
14 through John, who goes into the 1800s and -- tied into with --
15 at that time, with Geronimo Cochise and Mangas, and this is why
18 displeased.
20 time were arguing about the land base that was being taken and
ER089
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5 was from that descendant blood that I come from that was very
7 prayed and who -- in her time, lived in the area of Oak Flats
8 and why that was sacred, you know, both to my parents. Because
9 my mom resided in the area, but you know, through my dad I was
10 a Chiricahua Apache.
22 half of the 19th Century and into the early years of the 20th
25 Q. The latter half of the 19th Century, the 1800s and into the
ER090
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2 A. Yes.
8 declaration?
11 English word. And this one here is a ceremony that takes place
12 for our young boys that are coming into manhood, and that's
22 careful what we say out there, because we always see our ways
23 being destroyed.
25 you a lot more than anybody has ever gotten, and that's what I
ER091
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1 am doing today. But it does hurt me, because it's like our
3 prophecy would say to us, that one day we will be put on trial,
11 life.
14 And so this is at Oak Flat, one of the areas that our medicine
19 Naelyn spoke, the question of the Ga'an people. Well, with the
22 very end, they come together as one, the spirit and the human.
23 And those are the ones that bless at the Sunrise Ceremony.
ER092
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10 crucial because it's not -- you know, the women part is very
17 now that we vacated and able to do the ceremony openly and not
22 originated from.
24 5-2.
ER093
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4 know, I tell people that, you know, things are the way they are
6 capitalism.
9 coil, the last coil is really the last place. And when you
10 come to our area, it's really the last place about what is holy
12 And not that any of the other places are not, it's
14 have been attacked. And so when you describe what this is, you
21 of the world.
23 identity of who this person is. And it's really tough to put
24 it out there, because the way things are today, there's animals
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3 there.
5 between heaven and earth, and they are the communicators to us.
6 And they bring the message through the Creator, and that's why
12 sweat, our young men go through the sweat, because we ask for
13 forgiveness so that the spirit and the human body can come
14 together as one.
16 these are the ones that we say, you know, live in the area of
17 Oak Flats. And it's really hard for us to tell where they
25 that is there. And this is what we're saying that it's going
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17 abundance of water. And it's not that all Emory Oak gives is
20 back to Oak Flats, it's the first time since one of my people
21 has ever had the four seasons to live that life again. And it
22 hurt, because a lot of our prayers and our songs relate to what
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1 because the first thing they are going to attack is the Emory
2 Oak. They are going to cut all of the oak trees. If they can
3 kill all the oak trees, then they solve the Indian problem, the
7 for ceremony. And then on top of that, I got to see dozens and
10 anymore.
14 ceremony for their families, for their children, for the world.
15 But this is the acorn tree. And, you know, they are
16 facing death. You know, they are human beings too. They have
21 market? And what was the price the last time you looked and
25 Flat, approximately?
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2 Q. Thank you.
7 of questioning.
12 CROSS-EXAMINATION
13 BY MR. SCHIFMAN:
20 of San Carlos.
21 BY MR. SCHIFMAN:
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2 Q. Okay.
10 morning.
13 Mr. Levenson?
18 any witnesses.
24 plaintiffs.
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1 named as a plaintiff?
4 remain seated and pull the microphone closer so we can all hear
5 you.
7 legs.
22 goes to, I would say that if there is any doubt that the Apache
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12 by the tribe against a couple who had bought some land that the
18 the actual Treaty, which I know you have read several times
19 now.
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3 native peoples.
4 The title of --
7 itself. It's the 1852 Treaty between the United States and the
11 but they didn't have a, quote, unquote, tribe, and they didn't
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4 morning.
9 the only two issues before the Court for the purpose of the
11 the serious question of who owns that land, and the Religious
13 have alleged.
17 exchange?
20 that correct?
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14 MR. NIXON: And the tribe itself has its own lawsuit,
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2 Forest Service, not just in this case, but regularly, it's kind
13 And so I would just note that and say that I've been
15 in other cases over the years involving the Apaches and the
23 injury?
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14 You look at the maps they have for the FEIS and the
16 it's a map from a few years ago, I think March of a few years
17 ago.
19 Olivia.
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18 tribe, that principle stands for more than just cases brought
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1 relationship.
3 plaintiffs argue that the RFRA and free exercise claim should
6 differ from the framework set out in the Ninth Circuit Navajo
7 Nation case?
10 they are not citing the Supreme Court case but in fact citing a
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7 While you gather your notes, I have a question for Dr. Welch.
20 and to legislate and act for the happiness and, I think the
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4 level.
8 course the main big map of Arizona and New Mexico, map 1?
10 correct.
17 question.
19 of course, and the only really two relevant ones are the first
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3 and as the defense pointed out, we are not judges, this was his
6 the United States and the parties to the 1852 treaties would
17 Ethnology.
19 questions.
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7 in that perspective.
15 Circuit test.
19 there.
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1 synagogues in New York City, which tracks along with this. And
3 seen.
6 case, what the Supreme Court did was -- what took six pages in
9 principles that the Third Circuit did, but they never rejected
11 its significance.
16 THE COURT: Mr. Nixon, why did you wait six years from
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1 district that have appeared, ours -- a few days before the FEIS
7 ago.
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8 companies take the copper ore out of here and take it overseas
9 and make some copper wire out of it. There's nothing like
12 now almost 18 years ago or more, the Apaches have been doing
19 here.
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4 on this further.
15 whether the tribe had aboriginal title might have been, at the
16 time that the forest was placed into forest reserve, which you
23 a minute.
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2 case.
4 national forest and that tribe and its treaty history and its
10 aboriginal title to the area that includes Oak Flat has never
23 any attachments you may have, and I will issue an order on the
25 13th?
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6 --
16 Your Honor.
20
21
22
23
24
25
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1 C E R T I F I C A T E
12 2021.
13
14 s/Elva Cruz-Lauer
Elva Cruz-Lauer, RMR, CRR
15
16
17
18
19
20
21
22
23
24
25
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Michael V. Nixon (OR Bar# 893240) (pro hac vice application pending)
101 SW Madison Street# 9325
Portland, OR 97207
Telephone: 503.522.4257
Email: [email protected]
1
DECLARATION OF CRANSTON HOFFMAN JR.
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Under the penalties of perjury in accordance with the laws of the United States of America, I
hereby declare:
1. I, Cranston Hoffman Jr, am an enrolled member of the San Carlos Apache Tribe.
3. I am of the Tanasgizin Clan ("Washed People") on my mother's side and born for the Tiis tu
5. I am an Apache Traditional Practitioner and Medicine Man who conducts the Apache Holy
Grounds Ceremony.
6. I was raised by parents who taught me and my siblings about the Apache way of life.
7. When I was a child, I remember early memories of Chi'Chil Bildagoteel ("Oak Flat") when
my family stopped to pick acorn at Oak Flat. I also remember picking medicine in the area too. My
family and I drove around in the nearby Pinto Creek where there were plenty of cottonwood and acorn
trees along the creek. This whole region we visited at different seasons of the year.
8. Chi'Chil Bildagoteel ("Oak Flat") is a holy place. It is part of Western Apache lands. Today
there are living descendants of our ancestors whose clans come from this territory. Many of the living
descendants are enrolled tribal members from the San Carlos Apache Tribe. In early history, the United
States Government prevented us from freely roaming through these lands because the lands were rich in
natural resources. During this time and for many years, the Government also restricted Apaches from
freely practicing their traditional ceremony, both on and off the reservation. Instead of stopping our
religious practices we had our ceremonies in secluded areas. The Government laws were strict and our
ceremonies were hidden but we kept conducting them, even at Chi'Chil Bildagoteel.
9. I was taught and learned the ways of the Holy Ground ceremony from the Hoffman side of
my family. The stories, songs, and prayers from the Holy Ground ceremony have been passed down for
2
DECLARATION OF CRANSTON HOFFMAN JR.
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many generations within my family line. In return, I am teaching the next generation so they will be able
10. The Holy Grounds Ceremony is a blessing and a healing ceremony. At Chi'Chil
Bildagoteel ("Oak Flat") the Holy Ground ceremony is conducted for people who are sick, have ailments
or seek guidance. The Holy Grounds ceremony is also a ceremony to pray for elements that are part of
the eco-system, like rain, so water can rain down upon the People (the Apache), the animals, medicines,
11. I have conducted the Holy Grounds ceremony at Chi'Chil Bildagoteel ("Oak Flat") for many
years. The Holy Ground ceremony at Oak Flat supports life, and the emotional, physical and spiritual
well-being of our People (the Apache). It is a ceremony that should not be recorded or shared in social
12. To have a land exchange occur at Oak Flat and to have destruction of this spiritual place by
mining-these actions will have a direct, negative effect on me and members of the Holy Ground group
who assist me in conducting these ceremonies. The prayers we have offered will be disrupted, the
negative things extracted will resurface and we believe that these negative elements will come back to
hurt us, our loved ones, and/or our tribal community. Our religious beliefs in the good that we do by
conducting prayers at a special, holy place will be broken. We do not want this for our People, for our
Future and for Ourselves. Just as I served to defend this Country as a soldier in the Army, I serve my
People to defend our traditional Apache Way of Life as an Apache Medicine Man who conducts the
Apache Holy Grounds Ceremony at Oak Flat. I request that our declarations be heard and considered
Respectfully submitted,
3
DECLARATION OF CRANSTON HOFFMAN JR.
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Michael V. Nixon (OR Bar # 893240) (pro hac vice application pending)
101 SW Madison Street # 9325
Portland, OR 97207
Telephone: 503.522.4257
Email: [email protected]
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I, Clifford Levenson, under the penalties of perjury in accordance with the laws of
captioned matter.
Office in Flagstaff, Arizona, and identified myself as counsel for Apache Stronghold in
its lawsuit against the United States. I provided the receptionist with the case number, and
my contact information, and indicated that I wished to provide the U.S. Attorney’s Office
with a copy of the lawsuit, and to discuss the matter. The receptionist indicated that my
contact information would be provided to an attorney from the civil division in Phoenix,
and that I would get a return call. I did not receive a return call.
Phoenix. There was no answer, and there was no voice mail available.
4. I have provided a certified process server with copies of all pleadings filed by
the Plaintiff in this matter, and the process server has been directed to serve the
documents on the U.S. Attorney’s Office in Phoenix on the morning of January 14, 2021.
Respectfully submitted,
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Michael V. Nixon (OR Bar # 893240) (pro hac vice application pending)
101 SW Madison Street # 9325
Portland, OR 97207
Telephone: 503.522.4257
Email: [email protected]
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I, Naelyn Pike, under the penalties of perjury in accordance with the laws of the
1. I am a member of the San Carlos Apache Tribe and reside on the San Carlos
2. Chi'Chil Biłdagoteel (“Oak Flat”) is Apache sacred and religious land and has
been since time immemorial. I exercise my religion there and my religious beliefs are
peoples’ land, our Apache religion, our Apache religious beliefs, and our traditional
Apache homeland on behalf of the next generation and the generations yet to come, and
to stop the terrible plans of the foreign mining corporations Rio Tinto, BHP Billiton, and
their new local company Resolution Copper, to take and destroy Oak Flat and destroy our
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4. The essence of an Apache woman is our traditional land and our religious
connection to to Nahgosan, Mother Earth, which includes the sacred places like Oak Flat.
5. At least eight Apache clans and two Western Apache bands have documented
history in what is today known as Oak Flat and Apache Leap. Apache people are deeply
connected to our traditions and to the land that we have called home since first put here
by Usen, the Creator. Our religious beliefs entwine with land, water, plants, and animal.
My people have lived, prayed, and died in Oak Flat and Tonto National Forest for
centuries.
6. The United States Calvary had forced my people from the land and onto the
reservation in the late 1800s as prisoners of war. While we had to leave our sacred places
at gunpoint, these areas still retain their spiritual, cultural, and historical connection to the
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Apache people. Today we continue cultural and religious practice and have the right to
continue our religious freedom now, and in the future, as it was given to us by Usen.
7. Just the other day, the Forest Service publicly stated for the first time that the
Forest Service will publish the Final Environmental Impact Statement (“Final EIS” or
“FEIS”) for the Southeast Arizona Land Exchange and Resolution Copper Mine (“SALE-
8. We have the right to go back to these places because San Carlos is where we
were forced to by the U.S. Army and placed as prisoners of war after the Apache defense
of our homeland in the 1800s. San Carlos—that’s not my Apache home. My ancestors
that were forced to leave home were placed in Old San Carlos, where settlers from back
east called “Hell’s 40 Acres” because it was a place where no human beings could
live. This was a place for my ancestors to live the rest of their lives as prisoner and now
that name is called tribal member. My ancestors lived and roamed in Oak Flat and Mount
Graham before law was created and boundaries were set not allowing them to go back. I
am a descendent of those who were prisoners that continues to fight for the freedom to
1
“Trump To Approve Land Swap For Rio Tinto's Resolution Copper Project,” Ernest
Scheyder, Reuters (January 4, 2021) (“The U.S. Forest Service will publish a final
environmental impact statement for the mine on Jan. 15, a necessary step to complete the
land exchange, said Tom Torres, acting supervisor of the Tonto National Forest, where
the mine would be built.”). Article accessed on January 10, 2021, for citation at
https://www.msn.com/en-gb/news/world/trump-to-approve-land-swap-for-rio-tintos-
resolution-copper-project/ar-BB1ct2gu .
.
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9. That is why I’m fighting for my Apache home, for Chi'Chil Biłdagoteel (“Oak
Flat”) and Dzil Nchaa Si’An (known to settlers and their descendants today as “Mount
Graham”).
10. I am fighting for those Apache places because those places—you can be
born there, you can live there, take the medicinal plants, eat the food and drink the water,
have Apache religious ceremonies, and be free, and live that essence of life of who we
are—is a God-given gift that our creator has given to us for sacred religious purposes that
we believe in as we must as God expects us to, and it must be protected for that reason.
And also that the future of our children can still have the ability to pray where they
should and to be able to still believe in the spiritual things that live there and know we
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11. In Apache religion, Usen gives the gift of life and the bearing of children to
the female. In this gift our people celebrate the beginning, and the first women who gave
life to our people. This is the Sunrise Ceremony that our young Apache girls do when
they have their first menstrual. This is what I did on Mount Graham and my sister,
Nizhoni Pike did at Oak Flat. The sunrise ceremony is given to us as a right of passage
that sets a path for our life in the future. It doesn’t just bring life and blessing to the girls
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12. We believe that the place the ceremony takes place is the life thread forever
connecting the place and the girls who have their ceremony there, and their direct
connection to the land. The destruction of Oak Flat will not only destroy the land, water,
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plants, animals, cultural history, historical artifacts, and Apache religious beliefs seated
there, but it will also harm these girls’ life and their connection to their rebirth.
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13. True unity is accepting one another’s diversity, because each and every one
of us is beautiful as the Creator has made us in His image. We all have a story. I have my
own story. My mom has her story. Those before us have a story. This mine will not allow
the future to have a story. But, as long as we understand each other’s stories and we
accept that beautiful diversity in all people, because we are human beings in this world,
the one thing we can understand is that we all have one issue on which we can relate:
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Respectfully submitted,
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Michael V. Nixon (OR Bar # 893240) (pro hac vice application pending)
101 SW Madison Street # 9325
Portland, OR 97207
Telephone: 503.522.4257
Email: [email protected]
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I, Wendsler Nosie, Sr., under the penalties of perjury and in accordance with the
Apache traditional cultural property and religious ground where my religious beliefs are
seated and are freely exercised, as it has been for Western Apaches since time
immemorial. It is still Western Apache land by the 1852 Treaty of Santa Fe and belongs
to all Western Apaches. Oak Flat does not belong to the United States of America and so
the United States has no authority to sell it, exchange it, or otherwise convey it or give it
away.
2. Even though the United States has tried to steal Oak Flat away from us, we
have never given up or sold that Treaty land. Our traditional Apache religion does not
even allow us to do such a bad thing as that. Oak Flat is ours and always has been since
time immemorial, long before the United States of America ever existed.
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Wendsler Nosie, Sr. standing alongside an Apache ceremonial sweat lodge frame
at Chi'Chil Biłdagoteel (“Oak Flat”) (Photo by Eli Imadali, Arizona Republic).
3. I was born in July 1959, on the San Carlos Apache Reservation. I was raised
in a traditional Apache way of life. I graduated from the Globe High School in May 1978
Phoenix, Arizona, and completed the State of Arizona Banking Academy. On February
26, 2016, I received my title as AUSN Professor in the Practice of indigenous Knowledge
from the American University of Sovereign Nations and on June 13, 2018 received my
PhD, a Doctorate in Bioethics, Sustainability and Global Public Health from the
4. I am the son of the late Elvera Ward Nosie and the late Paul Nosie Sr. My
mother, Elvera Nosie was born in Old San Carlos as a Prisoner of war. Her father was
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George Ward and her mother Maria Galvan. My grandfather George Ward, the son on
Hiram Ward and Altisa were among the first Yavapai prisoners at Old San Carlos, driven
from the Pinal Mountains and Oak Flat area, and Camp Verde areas to Old San
Carlos. My father Paul Nosie Sr. was the son of William Nosie and April Logan, the
descendants of Chief John Nosie of the Chiricahuas. April Logan was the Daughter of
Walter and Ella Mary Logan, the family of Abraham Logan, the keeper of the Holy
Ground in Seven Mile, San Carlos.AZ My clan is Stiniye and I am a descendent of the
5. Naelyn Pike is my granddaughter. I have read her Declaration in this case and
I adopt it and incorporate her words here into my Declaration, too. We have come a long
way together through this struggle to protect our ancestral homelands, and I am thankful
for her never-ending support and courage, especially during the most difficult times. Her
powerful voice and determination to help protect the things we hold dear are a constant
6. I have been elected and served in the government of the San Carlos Apache
(2006-2010).
for-profit organization registered in Arizona, and headquartered in the town of San Carlos
in the San Carlos Apache Tribe’s reservation land, bordered by the White Mountain
Apache Tribe, the Navajo Tribe, the State of Arizona, and some federally-managed lands
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8. For over a decade our Tribe fought to stop the Southeast Arizona Land
conglomerates, Rio Tinto and BHP, to dig a questionable and vast copper mine beneath
lands we hold as sacred. Thanks to the vocal opposition of more than 400 Native Nations
and tribal organizations the House of Representatives pulled the Land Exchange from
floor consideration twice during the 113th Congress (January 3, 2013, to January 3, 2015)
9. Despite this nationwide opposition, the Land Exchange was buried on page
1,103 of a 1,700-page National Defense Authorization Act (“NDAA”) that was unveiled
on December 13, 2014, just minutes prior to midnight, the evening before votes.1 This
despicable action is the antithesis of democracy and has threatened to forever destroy our
way of worship and life, yet the United States and its Forest Service leaders persist, now
rushing this week to publish a Final Environmental Impact Statement (“FEIS”) so it can
trigger the provision in Section 3003 of the NDAA that allows the Forest Service to
1
“Senate passes spending bill, ends government shutdown threat,” By David Lawder and
Amanda Becker, Reuters (December 13, 2014) https://www.reuters.com/article/us-usa-
congress-budget/senate-passes-spending-bill-ends-government-shutdown-threat-
idUSKBN0JR0I820141214. See also, “Crowd protests copper mine on sacred lands,”
Apache Messenger/Indianz.com (December 22, 2014)
https://www.indianz.com/News/2014/015978.asp.
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10. This past week, as we suddenly learned without any prior official notice—
even though we have been actively involved in the process directly with the U.S. Forest
Service and the other federal agencies working with the Forest Service on the proposed
Oak Flat Land Exchange, such as the President’s Advisory Council on Historic
that they will publish the FEIS this Friday, January 15, 2021, setting up the stage for the
Land Exchange of Oak Flat—which could then happen the very same day as the
11. There is nothing mandating that the Forest Service must publish the FEIS on
January 15, 2021, or even any day this month or next. In fact, there is no FEIS
flawed Draft Environmental Impact Statement (“DEIS”) process, the mining corporation
and TNF, both acknowledge that the mine will cause a vast subsidence in the earth,
with that, destroying our ability to have and preserve our traditional Apache way of
prayers, our religious beliefs and ceremonies, and our religious Apache way of life.
2
“Trump To Approve Land Swap For Rio Tinto's Resolution Copper Project,” Ernest
Scheyder, Reuters (January 4, 2021) (“The U.S. Forest Service will publish a final
environmental impact statement for the mine on Jan. 15, a necessary step to complete the
land exchange, said Tom Torres, acting supervisor of the Tonto National Forest, where
the mine would be built.”). Accessed on January 10, 2021 via https://www.msn.com/en-
gb/news/world/trump-to-approve-land-swap-for-rio-tintos-resolution-copper-project/ar-
BB1ct2gu
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13. We said for years, Resolution Copper’s mining operations will have
devastating impacts
on our history, our culture, our religious practices, and the natural resources and
environment of this area, especially the region’s water supply. For years, proponents of
Resolution Copper ignored these harsh realities and insisted that the benefits of jobs,
which were greatly exaggerated and fluctuated frequently, were worth the toll to the
environment and life of the surrounding communities. Yet, the DEIS confirmed in large
part the permanent damage and losses we already knew would occur to the broader
physical environment, and our places of religious worship and cultural reverence should
14. The proposed mine would directly, adversely and permanently affect and
destroy numerous cultural artifacts, sacred seeps and springs, traditional ceremonial
areas, resource gathering localities, burial locations, and other places of high spiritual
15. The analysis of the Tribal Values and Concerns focuses the impacts of the
proposed Land
Exchange and Resolution Copper Mine on the past without recognizing the current
presence of religious and cultural practices that have endured at Oak Flat for centuries.
history of America.3
3
See, e.g., “Earth, Wind and Fire: Pinal Apaches, Miners, and Genocide in Central
Arizona, 1859-1874,” Welch, John R., Sage Open Journal, vol.7, no.4 (October-
DECLARATION OF WENDSLER NOSIE, SR., Ph.D. 7
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16. What was once gunpowder and disease is now replaced with bureaucratic
negligence and mythologized past that treats us, as Native people, as something invisible
or gone. We are not. We are still a vibrant and vital part of our Nation’s fabric despite
books. However, the permanent damage that will be caused by the Resolution Copper
Mine is something that will contribute to this genocidal narrative continuing now and
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Chi’Chil Bildagoteel. Despite the violent history of the U.S. Government’s exile, forced
march and imprisonment of Native people on reservations, and the efforts by the U.S.
Government to discourage, impede, or fully disallow us from coming to this holy area,
we have our own legacy of persistence and never letting go of this place.
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18. Chi'chil Bildagoteel’s religious value to our prayers, our ceremonies, and in
our family histories cannot be overstated. Native religion was the first religion practiced
in this area.
Bildagoteel with its four crosses, which represent the entire surrounding Holy and Sacred
area, including its water, animals, oak trees, and other plants central to our Western
20. It is important to note that Chi'chil Bildagoteel is listed in the National Park
Traditional Cultural Property (“TCP”).4 Emory oak groves at Oak Flat used by tribal
members for acorn collecting are among the many living resources that will be lost along
with more than a dozen other traditional plant medicine and food sources. Other
unspecified mineral and plant collecting locations and culturally important landscapes
21. Development of the Resolution Copper Mine would directly and permanently
damage Chi'chil Bildagoteel, our sacred holy ground that is vital to us, which is why we
strongly oppose this operation. The impacts that will occur to Oak Flat will undeniably
prohibit the Apache people from practicing our ceremonies at our Holy site. Construction
4
U.S. Department of Agriculture Tonto National Forest (2015) National Register
nomination for the Chi’chil Biłdagoteel National Historic District, Pinal County, Arizona
(U.S. National Park Service, National Register of Historic Places,
approved March 4, 2016). Retrieved from
http://bloximages.chicago2.vip.townnews.com/tucson.com/content/tncms/assets/v3/editor
ial/8/b1/8b10c3b0-77ed-560b-bd5f-bc0552df7e7c/56e363c6b87ba.pdf.pdf
DECLARATION OF WENDSLER NOSIE, SR., Ph.D. 10
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of the mine would cut off access and once the mine has been completed, the destruction
will create a permanent barrier preventing Apache ceremonies from taking place.
22. Our connections to the Oak Flat area are central to who we are as Apache
people. Numerous people speak of buried family members. Most of them include
childhood memories. Everyone speaks to the deep spiritual and religious connection that
Apaches have to the land, water, plants and animals at Oak Flat that would be
23. The destruction to our lands and our sacred sites has occurred consistently
over the past century in direct violation of treaty promises and the trust obligation owed
to Indian tribes.
24. Please keep in mind that the Land Exchange was achieved through a
backroom agreement, literally at midnight the evening before attaching it to the NDAA.
We would not be in this position today had the Land Exchange gone through regular
25. It always has been told and taught to us for generations by our parents, our
elders, our traditional Apache religious leaders —and it is embedded in our way as
passed down from our Apache ancestors—that this place, Oak Flat, is special and holy
and sacred. This is a unique and special sacred place as we believe in the spiritual forces
of God the Creator that he put there for us and for us to protect and honor in the humble
26. When our families gather at Oak Flat to celebrate our religious beliefs, we are
no different
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than our Christian brothers and sisters who gather at their respective churches on Sundays
and other holy days. The only difference is our permanent place of prayer and worship is
under attack and will be destroyed if the FEIS is published this Friday, January 15, and
27. This case is for the survival and protection of our Apache religion, and the
Forest Service must be stopped from publishing that FEIS this Friday, January 15,
because there is no compelling reason for them to do that so suddenly and right now.
28. The publication of the FEIS on January 15, 2021, would violate our Due
Process rights under the Fifth Amendment to the U.S. Constitution which guarantees us
the right to have adequate and effective notice of government acts that will affect our
legal rights. Ten (10) days’ notice is utterly inadequate for such a momentous decision
having such catastrophic adverse effects on our First Amendment Rights to our religious
beliefs and the free exercise of our Apache religion, and prejudices and harms our First
Amendment Rights to Petition the Government for Redress of Grievances and the
corresponding Right to Remedy included within the Petition Clause of the First
Amendment.
29. Oak Flat is Apache land and we must be allowed to protect our land and our
religious beliefs and religious freedom rights before the harms increase and accelerate
with the Forest Service’s publication of the FEIS this coming Friday, just four (4) days
from now.
30. Neither Apache Stronghold, nor myself or any Apache officials received
direct or adequate notice that the Forest Service has suddenly decided to make the
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publication of the FEIS on January 15, 2021 until it was revealed to us only by us seeing
that online news report by Reuters the other day. This FEIS publication is also a
precursor genocidal act and this Court must not allow it.
Wendsler Nosie, Sr., at Chi'Chil Biłdagoteel (“Oak Flat”) (Photo by Adriana Zehbrauskas
for The New York Times)
Respectfully presented,
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Page 45
Michael V. Nixon (OR Bar # 893240) (pro hac vice application pending)
101 SW Madison Street # 9325
Portland, OR 97207
Telephone: 503.522.4257
Email: [email protected]
Under the penalties of perjury in accordance with the laws of the United States of America, I
hereby declare:
Archaeology and in the School of Resource and Environmental Management, at Simon Fraser University,
British Columbia, Canada. I also direct research and outreach activities in my capacities and the director
2. I have a lifelong interest in the natural and human history, geography, and management of the
American Southwest and earned my graduate degrees in anthropology (MA, 1985; PhD, 1996) from the
3. I am a registered professional archaeologist (RPA 10027) and, over the last 36 years, have
been employed by private consulting firms, by the University of Arizona, by the U.S. Department of the
Interior, by the White Mountain Apache and San Carlos Apache Tribes, by Archaeology Southwest, and
4. I began working with Western Apache (Ndee) lands and leaders in 1984, while a graduate
student, and from 1992 to 2005 served as the archaeologist and historic preservation officer for the White
Mountain Apache Tribe. My work during this period included documenting, assessing the significance of,
and protecting archaeological and cultural resource sites, training crews of Apache foresters and resource
technicians to do the same, and assisting in the planning and implementation of land alteration and forest
treatment projects. I also advised Apache elected and cultural leaders regarding their participation in the
implementation of the Native American Graves Protection and Repatriation Act (NAGPRA). I also
advised Apache leaders in their consultations with federal agencies, including the U.S. Forest Service and
the Tonto National Forest, as those agencies attempted to comply with the National Historic Preservation
5. My work on Western Apache archaeology and land use has involved close collaborations with
recognized Western Apache experts in history and culture. Those collaborations have allowed me to
acquire knowledge of changes in the use, occupation, and management of Western Apache ancestral
lands, including the area containing Chí’chil Biłdagoteel (“Emory Oak Extends on a Level,” widely
known as “Oak Flat”). I have endeavored to translate the privileges flowing from my collaborations with
Western Apache people and their lands into useful and informative publications about regional history,
archaeology, and persistent Apache interests in their lands and places within and beyond reservation
boundaries. A full chronicle of these publications and my employment and research funding histories are
presented in my curriculum vitae, which is attached hereto and incorporated herein by this reference.
6. In February 2018, relying on the same expertise I outlined above, I gave sworn expert
testimony on behalf of the San Carlos Apache Tribe before the Arizona Department of Environmental
7. Reviewing all of the information presented herein, including the history of the 1852 Treaty
between the Apache Nation and the United States, the proceedings of the Indian Claims Commission, and
all relevant federal executive orders and agency decisions, I have reached an opinion regarding tenure of
the land now known as Oak Flat. That opinion is that Oak Flat is Western Apache ancestral land
contained within the Western Apaches’ Treaty Territory and cannot be owned by the United States of
America or any other entity or person. The information that I have relied on is the kind of information that
an archaeologist and historian would rely on to determine the opinions that I have formed here
8. I have, over the decades, heard stories from many Western Apache leaders and colleagues to
the effect that U.S. Army forces attacked the camps of their forebears, killing their families, evicting them
from most of their ancestral lands, and concentrating the survivors at San Carlos and Fort Apache. The
results of my 2017 peer-reviewed study on this deeply disturbing facet of Arizona history are freely
available as “Earth, Wind, and Fire: Pinal Apaches, Miners, and Genocide in Central Arizona, 1859-
9. That research into the Pinal Apache Genocide and related aspects of Western Apache-U.S.
relations prompted further inquiry into the use and tenure of Western Apache ancestral lands not included
1
Available online at: https://journals.sagepub.com/doi/full/10.1177/2158244017747016
within the U.S. Government-designated boundaries of Western Apache tribal trust lands (i.e., the Camp
10. In later 2018 and continuing through 2020, I took a particular interest in the 1852 Treaty
between the U.S. and the Apache Nation of Indians (sometimes referenced as the Treaty of Santa Fe),
(herein “1852 Treaty”). That 1852 Treaty was signed by representatives of Apache peoples living both to
the east of the Rio Grande (that is, Eastern Apaches—the Plains and Mescalero Apache) and west of the
Rio Grande (that is, the Western Apaches—the Chiricahua and Western Apache).2 The 1852 Treaty was
duly ratified by the U.S. Senate and proclaimed by President Pierce on March 25, 1853. I did not find
evidence that the 1852 Treaty was ever amended or rescinded. This research has resulted in a draft
11. My research investigated the articles of that 1852 Treaty, the boundaries of the Apache lands
covered by that agreement, which I refer to as the Western Apaches’ Treaty Territory, and the Treaty’s
signatories, application, and enforcement. My review of the 11 articles of the 1852 Treaty identified
found several articles that recognize Apache territory through direct and indirect references. Article 7 of
the 1852 Treaty affirms that the “people of the United States of America shall have free and safe passage
through the territory of aforesaid Indians." In Article 8, the parties agree that, “to preserve tranquility and
to afford protection to all the people and interests of the contracting parties, the government of the United
States will establish such military posts and agencies, and authorize such trading houses at such times and
places as the said government may designate.” Article 9 affirms “that the government of the United States
shall at its earliest convenience designate, settle, and adjust their territorial boundaries, and pass and
execute in their territory such laws as may be deemed conducive to the prosperity and happiness of said
Indians.” In Article 11, the parties agree the “Treaty shall be binding [and] … the government of the
United States shall so legislate and act as to secure the permanent prosperity and happiness of said
Indians.”
2
Kappler, Charles J., Compiler and Editor (1904). Indian Affairs: Laws and Treaties, Vol. II (Treaties).
Washington DC: Government Printing Office, pages 598-600.
12. My investigation of the 1852 Treaty found that the U.S. Smithsonian Institution, Bureau of
American Ethnology, mapped and published what I refer to as the Western Apaches’ Treaty Territory to
encompass most of the southern half of New Mexico Territory (present day New Mexico and Arizona)
west of the Rio Grande (Figure 1, Map Area 689).3 Map 1, below shows cropped portions of two maps,
“Arizona 1” and “New Mexico 1” conjoined to depict the 1852 Western Apaches’ Treaty Territory
(central greenish area “689”). The red arrow points to the approximate location, within the Western
Apaches’ Treaty Territory, of the Apache place known as Chí’chil Biłdagoteel (Oak Flat).
MAP 1
13. My research has also included a review of U.S. Federal Government actions—including those
of the Legislative, Executive, and Judicial branches—purporting to alter or transfer ownership or control
3
Royce Charles C. (1899). Indian land cessions in the United States (Arizona and New Mexico map No.
1, pp. 922-923) (Eighteenth annual report of the Bureau of American Ethnology). Washington, DC:
Smithsonian Institution. From https://lccn.loc.gov/13023487, accessed October 20, 2020.
of the Western Apaches’ Treaty Territory. I found dozens of such actions affecting millions of acres
within the Western Apaches’ Treaty Territory. I have yet to discover a single instance in which the legal
authority for the action by the United States—whether act of Congress, executive order, or court
decision—explicitly recognizes either the 1852 Treaty or the effect and apparent impingement of those
Federal actions on the Treaty and the Western Apaches’ Treaty Territory and associated Treaty rights.
14. I investigated the proceedings of the Indian Claims Commission for Docket 22, addressing
claims to compensation for lands taken by the United States from tribes representing Apache, Yavapai,
and Navajo plaintiffs. The Docket 22 records are scattered, and the Indian Claims Commission ultimately
partitioned Docket 22 into multiple proceedings, but I examined Docket 22 materials in libraries and the
U.S. National Archives Record Group 279. I gave particular attention to the following: testimonies
provided by tribal elders, reports of subject matter experts regarding claimant tribes’ histories and land
uses, and Findings of Fact and legal decisions of the Indian Claims Commissioners. I followed these
related lines of inquiry to learn where and under what circumstances the Federal Government, through the
Indian Claims Commission, may have attempted to “quiet” Apaches’ reserved treaty rights or aboriginal
land title, principally through providing compensation for or refusing to provide compensation for
aboriginal lands, defined by the Indian Claims Commission as lands subjected to “exclusive tribal use and
15. I found no evidence, in the proceedings of the Indian Claims Commission or elsewhere, of
any change or diminishment in the Apaches’ reserved treaty rights to the Western Apaches’ Treaty
Territory. I found no evidence that the United States compensated the Apache treaty rights holders for
Chí’chil Biłdagoteel (Oak Flat). Oak Flat is Apache land, as it has been for centuries and is not owned by
4
United States Indian Claims Commission (1979). Final Report, August 13, 1946-September 30, 1978.
U.S. Government Printing Office: 1979-271-733 (the quotation appears on page 10). The map of
aboriginal land areas adjudicated by the Indian Claims Commission is available at
https://pubs.er.usgs.gov/publication/70114965, accessed April 1, 2020. For an account of aspects of the
adjudication of Docket 22, see Lieder, Michael, and Jake Page (1997). Wild Justice: The People of
Geronimo Vs. the United States. New York, Random House.
16. With specific reference to the proposed Resolution Copper mine and the land area slated for
mechanical, hydrological, and atmospheric impacts (see Map 2, below), I learned that Western Apache
and Yavapai people living in the period prior to sustained contact with Americans (that is, during the
Pinal Apache Genocide, 1859–1874) agreed on at least two fundamental aspects of land tenure history.
17. First, they agreed that the crest of the Mazatzal Mountains and Pinal Mountains constituted a
general dividing line between the Western Apache and Yavapai ancestral territories.
18. Second, they agreed that line of division was permeable. The generally peaceful relations
between the two peoples allowed family groups to cross that boundary whenever it was convenient or
useful for them to do so, even without permission from those on the other side of the divide. These
crossings typically occurred as Apache and Yavapai family groups pursued seasonally and spatially
distributed concentrations of wild plant foods, including cactus fruits and nut masts. Apache and Yavapai
groups, especially those groups located close to the Mazatzal-Pinal boundary, shared information and
land use, also occasionally intermarrying, camping nearby, and cooperating in defense of their territories.
19. These agreed-upon facts from the Indian Claims Commission Docket 22 proceedings are
further affirmed in results from investigations and tribal consultations undertaken by the U.S. Forest
Service concerning the proposed Resolution Copper Mine, as required by federal environmental and
historic preservation laws and by Section 3003 of the National Defense Authorization Act of 2015.5
20. The two maps, included below, show that the impact area for the proposed Resolution Copper
mine extends across westerly portions of the Western Apache (Docket 22-D) aboriginal lands, as
judicially established by the Indian Claims Commission (ICC map areas 140 and 141, see Map 2), and
across easterly portions of Yavapai (Docket 22-E, ICC area 146) and Pima-Maricopa (Docket 228, ICC
area 147) aboriginal lands. Map 2 provides a regional view; Map 3 provides a more detailed view of the
Resolution Mine potential impact area, with Chí’chil Biłdagoteel (Oak Flat) at the center of the impacts.6
5
In particular, see Maren P. Hopkins, Chip Colwell, T.J. Ferguson, and Saul L. Hedquist (2015) Ethnographic and
Ethnohistoric study of the Superior area, Arizona, prepared for Resolution Copper Mining by Anthropological
Research, L.L.C.
6
Professional cartographers prepared Map 1 and Map 2 under the direction of John R. Welch using information
MAP 2
from the U.S. Forest Service and spatial data publicly available through national cartographic data bases.
21. Map 2 depicts the original “White Mountain Reservation,” the San Carlos Reservation and
Fort Apache Reservation divisions (1897) of that original reservation, and the various tracts excluded
from those reservations by unilateral U.S. Federal Government actions, none of which reference or
comport with the articles of the 1852 Treaty. Map 2 and Map 3 both show the conjoined turquoise blue
and red lines depicting most of the boundary between the Western Apache and Yavapai lands along the
crest of the Mazatzal and Pinal Mountains and the area of concern, Chí’chil Biłdagoteel (Oak Flat), on the
west side of that boundary, near the southern edge of Yavapai aboriginal lands (Docket 22-E, ICC map
area 146, delineated in turquoise blue). These two maps also show that the impact area for the proposed
Resolution Copper mine affects Western Apache, Yavapai, and Pima-Maricopa aboriginal lands and a
tract south and southeast of Yavapai and Western Apache aboriginal lands. Because the rules adopted by
the Indian Claims Commission prohibited the recognition of tracts used by multiple Indian peoples as the
aboriginal lands of any single claimant group, the Commission did not identify this tract aboriginal lands.
No Tribe received compensation for the “every man’s lands” south of Yavapai aboriginal lands.7
22. The Indian Claims Commission proceedings in Docket 22-D resulted in compensation to the
San Carlos and White Mountain Apache Tribes for the taking by the U.S. of millions of acres of Apache
lands. The lands for which the Western Apache tribes received compensation did not include Chí’chil
Biłdagoteel (Oak Flat) or other lands for which the Yavapai tribes apparently received compensation
7
U.S. Indian Claims Commission (1965). Findings of Fact in Docket 22-E (15 Ind. Cl. Comm., March 3,
1965), Records Group 279, Entry 11UD. Washington, DC: National Archives. U.S. Indian Claims
Commission (1969). Findings of Fact in Docket 22-D (21 Ind. Cl. Comm., June 27, 1969), Records
Group 279, Entry 11UD. Washington, DC: National Archives.
WHIT I
M OU H TAI H
I N O 1"A N
' 0
......
-
.,.
--
----
•
-----
c:, -
---··-- -
A
•• I
MAP 3
23. The cartographic, documentary, and archaeological materials that I have investigated are part
of the information that form the basis of my expert opinions that (a) Western Apaches retain reserved
treaty rights to Chí’chil Biłdagoteel (Oak Flat); (b) Indian Claims Commission decisions in Docket 22-D
(San Carlos and White Mountain [Western Apache] Tribes) and Docket 22-E (Yavapai Tribes) never
affected or otherwise diminished Western Apaches’ reserved treaty rights, including those of the San
Carlos Apache Tribe and its members created by the 1852 Treaty, and (c) because of the evidence
presented in Indian Claims Commission Docket 22 proceedings and in the nomination of Chí’chil
Biłdagoteel to the U.S. National Register of Historic Places (see below), the Indian Claims Commission
should not have recognized Chí’chil Biłdagoteel (Oak Flat) as land exclusively used and occupied by
Yavapai. Yavapai and Apache customary practice includes the sharing of food gathering areas. Yavapai
and Apache oral traditions include specific references to sharing acorn gathering areas and Oak Flat. The
Chí’chil Biłdagoteel National Register District includes abundant archaeological evidence of Apache use
Western Apache culture, spirituality, and history, with special reference to the Pinal Apache Genocide.
25. While my academic training, research interests, and expertise do not extend to or include
and land use have come from intently listening to Western Apache cultural practitioners explain the
importance of places and their roles in Western Apache history, spirituality, and metaphysics.
26. Four lessons from my listening to Western Apache knowledge keepers are pertinent to this
declaration: (a) Western Apache conceptions of time, space, power, history, and human interrelations
with these are distinct from Western conceptions (including those I was brought up with); (b) Western
Apache people perceive, learn from, and act with profound respect in relation to places, including the big
places often referenced as landscapes, in ways that are both culturally shared and intensely personal; (c)
Non-Apaches, myself included, should generally leave it to knowledgeable Western Apache people to
interpret or comment upon Western Apache religious places in general, and upon specific places, like and
including Chí’chil Biłdagoteel, that are known to be holy places; and (d) Notwithstanding these concerns,
there are occasional appropriate roles for non-Apaches to offer technical support (for example,
archaeological or cartographical) and external comments as means to bridge the vast chasms between
Western Apache and non-Apache regard for and treatment of place and places.8
27. Specifically, the lovely, 40-acre grove of old-growth Emory oaks most widely known as Oak
Flat, is a primary activity area for a much larger cultural landscape. Apache cultural experts, knowledge
holders representing other regional tribes, and professional archaeologists from diverse backgrounds have
8
The essential book corroborating these points is Basso, Keith H. (1996). Wisdom Sits in Places:
Landscape and Language Among the Western Apache. Albuquerque: University of New Mexico Press.
recognized as Oak Flat a local hub for at least 10 centuries of residence, food gathering, and ceremonial
activity.9 Pottery fragments, engravings on boulders and cliff faces, roasting areas, and remnants of
diverse house structures and other activity areas surround the grove and contribute to Chí’chil Biłdagoteel
28. Converging lines of evidence from multiple tribes’ oral histories, historical documents, and
archaeological studies obliged the U.S. Forest Service to nominate, and the Keeper of the U.S. National
Register to list, Chí’chil Biłdagoteel in the National Register of Historic Places. Chí’chil Biłdagoteel’s
landforms, springs, woodlands, canyons, and religious sites collectively embody and define a 4,309-acre
cultural landscape of past and ongoing use by and high significance to Western Apache people.10
29. The 4,309-acre National Register District encompasses the entirety of the 2,422-acre parcel of
the Western Apaches’ Treaty Territory and Western Apache ancestral land proposed for the land
exchange. The Chí’chil Biłdagoteel in the National Register District is essential both in the practice of
Western Apache religion and in the implementation current proposal for the Resolution Copper mine.
30. As to the question of cultural and religious significance of Chí’chil Biłdagoteel, only Western
Apache people with Western Apache religious beliefs and who conduct Western Apache religious
practices are fully qualified to answer. I will say, nonetheless and with utmost deference, that many
Western Apache people view the desecration, or even disrespect, of holy places, most especially in
pursuit of profit or other individual gain at others’ cost, as an affront to all that is right and good. Many
Western Apache people also view such reckless behavior as extremely dangerous intrusions of secular
concerns into highly sensitive and sacred domains of limitless natural and supernatural forces.
9
Hopkins, Maren P., Colwell, Chip, Ferguson, T. J., & Hedquist, Saul L. (2015). Ethnographic and
Ethnohistoric study of the Superior area, Arizona. Prepared for Resolution Copper Mining. Tucson, AZ:
Anthropological Research, L.L.C.
10
U.S. Department of Agriculture Tonto National Forest (2015) National register nomination for the
Chi’chil Biłdagoteel national register historic district, Pinal County, Arizona (U.S. National Park Service,
National Register of Historic Places, approved March 4, 2016). Retrieved
from http://bloximages.chicago2.vip.townnews.com/tucson.com/content/tncms/assets/v3/editorial/8/b1/8b
10c3b0-77ed-560b-bd5f-bc0552df7e7c/56e363c6b87ba.pdf.pdf
31. The late Nick Thompson, a Western Apache resident of Cibecue, White Mountain Apache
Tribe lands, and a knowledgeable authority on Western Apache places, culture, and religion, made this
point in an interview many years ago with Keith H. Basso using terms I would never attempt to improve
upon: “If you hurt one of these holy places, it’s very, very bad. You will hurt yourself and all your people
if you do that. You must always show respect and take care of those holy places. Each one helps us in
some way. We depend on them to help us live right, to live the way we should. So we leave them alone
except when we really need them. We pray to them to help us. If we hurt them they would stop helping us
Respectfully submitted,
11
Hon. Terry Rambler (2019). Comment on behalf of San Carlos Apache Tribe on the Draft
Environmental Impact Statement for the Resolution Copper Project and Land Exchange, submitted to
U.S. Department of Agriculture Tonto National Forest, December 23, 2019, pp. 12-13.
EDUCATION
1996 Ph.D. Anthropology, University of Arizona, Tucson, U.S.
1985 M.A. Anthropology, University of Arizona, Tucson, U.S.
1983 A.B. Anthropology (Honors), Spanish, Hamilton College, Clinton, New York, U.S.
INTERESTS
Sovereignty-driven cultural and biophysical heritage stewardship and research
Keywords: Sovereignty-driven research; Community-based conservation; Customary law and
practice; Cultural resources management; Historic preservation; Indigenous archaeology; Activist
archaeology; Resistance; American Southwest and British Columbia
Western Apache archaeology, history, and human ecology in the Arizona uplands
Keywords: Apache archaeology; Trail archaeology; Sacred sites protection; Land claims; Heritage
tourism and culturally appropriate economic development; Indigenous management models
COURSE PORTFOLIO
Archaeological Resource Management Co-Management with Indigenous Peoples
Cultural Heritage Crime Heritage Resource Management Law & Policy
EMPLOYMENT
April 2005–Current Professor & Director of the Professional Graduate Program in
Heritage Resource Management, jointly appointed in the
Department of Archaeology and School of Resource and
Environmental Management, Simon Fraser University
February 2018–Current Director, Landscape and Site Preservation Program, Archaeology
Southwest, Tucson. Lead collaborative, preservation-focused,
management, advocacy, and tribal and public engagement initiatives.
January 2005–Current Advisor, Consulting Historian, and Expert Witness, White
Mountain Apache Tribe, Whiteriver, Arizona & San Carlos Apache
Tribe, San Carlos, Arizona. Assist in redeveloping the Fort Apache
Historic District, reclaiming lands erroneously excluded from the
reservation, repatriating cultural items, and protecting sacred sites
September 2008–Current Associate Faculty, Archaeology, Arizona State Museum, University
of Arizona, Tucson
April 2010–July 2013 Faculty Mentor, White Mountain Apache – University of Arizona
Western Apache Ethnography and GIS Field School
September 1998–June 2005 Visiting Scholar, Department of Anthropology, University of
Arizona, Tucson
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45
CONTRIBUTIONS
Peer-Reviewed Journal Articles, Books, and Book Chapters
1. Hogg, Erin A., and J.R. Welch (2020) Aboriginal Rights and Title for Archaeologists: A History of
Archaeological Evidence in Canadian Litigation. Journal of Social Archaeology 20 (1):1-28.
2. Welch, John R. (2020) I Archaeology. In Archaeologies of Heart and Emotion, edited by Kisha
Supernant, Jane Eva Baxter, Natasha Lyons, and Sonya Atalay, pp. 23-37. Springer Nature.
Works in Press
1. Roos, Christopher, J.R. Welch (2021) Native American Fire Management at an Ancient Wildland-
Urban Interface in the Southwest US. PNAS 2020-18733R In press.
SERVICE
Academic (External)
2020 External Reviewer for Tenure and Promotion Case: University of British
Columbia
2017–2019 Registrar, Register of Professional Archaeologists
2017 External Reviewer for Tenure and Promotion Case: Harvard University
2015–2020 Member, Editorial Board, Advances in Archaeological Practice
2014–2020 Co-Chair, Amity Pueblo Task Force, Society for American Archaeology
2013–2016 Member, Government Affairs Committee, Society for American Archaeology
2013 External Reviewer for Tenure and Promotion Cases: Southern Methodist
University, Ft. Lewis College
2011–2013 Chair, Continuing Professional Education Committee, Register of Professional
Archaeologists
2003–Life Trustee, Josephine H. Miles Testamentary Trust, benefiting the Colorado
Historical Society and three American Indian schools in Wyoming and Montana
2003–2010 Member, Government Archaeology Committee, Society for American
Archaeology
2006–2009 Co-Chair, Continuing Professional Education Committee, Register of
Professional Archaeologists
Community
2007–2019 Member and Board Secretary, Fort Apache Heritage Foundation Board of
Directors
2015–2016 Advisory Committee member, Tribal Preservation Planning Needs in Case of
Emergency, project developed by the National Association of Tribal Historic
Preservation Officers (NATHPO) with support from the U.S. Federal Emergency
Management Agency.
2005–2012 Archaeology Department liaison, SFU United Way Campaign
2005–2011 Archaeology and REM School liaison, SFU United Way Campaign
2007–2010 Member, Public Education Committee, Archaeological Society of British
Columbia
2007–2009 Member, Fort Apache Master Plan Revision Team, White Mountain Apache
Tribe
1998–2007 Founding Board Member (ex officio), Secretary, Executive Director (pro
tempore), Fort Apache Heritage Foundation, Fort Apache, Arizona
2003–2005 Member, Board of Directors, Arizona Wilderness Coalition
2002 Judge, Miss White Mountain Apache Queen Committee, White Mountain Apache
Tribe
OTHER
Manuscript and Proposal Refereeing (Last Five Years)
American Antiquity Canadian Journal of Archaeology
Journal of Social Archaeology Journal of Archaeological Science
Roman & Littlefield Environment and History
University of Hawaii Press University of Arizona Press
University of Utah Press Research Council of Norway
Journal of Environmental Education Research Left Coast Press
Social Science and Humanities Research Council of Canada
Memberships
Az Archaeological and Historical Society (1983–life) World Archaeological Congress (2006–current)
BC Assn Professional Archaeologists (2010–current) Archaeological Society of BC (2005–current)
Society for Applied Anthropology (2003–2013) Canadian Archaeological Assn (2005–current)
Register of Professional Archaeologists (1998–current) Amer. Anthropological Assn (1986–2016)
Society for American Archaeology (1984–current)
Exhibit A
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1 PAULE . SALAMANCA
Deputy Assistant Attorney General
2 United States Department of Justice
Environment and Natural Resources Division
3
4 TYLER M. ALEXA NDER( CABarN o. 313188)
Trial Attorney
5
Natural Resources Section
6 150 M St. NE, Third Floor
Washington, D.C. 20002
7
(202) 598-3314
8 ty [email protected]
9
Attorneys for Defendants
lO THE UNITED STATES DISTRICT COURT
11 DISTRICT OF ARIZO NA
PHOEN IX DIVISIO N
12
13
Apache Stronghold, CIVIL NO. 2:21-cv-00050-CDB
14
15 Plaintiff, DECLARATION OF
V. TRACY PARKE R
16
17 United States of America, et al.,
18 Defendants.
19
20
21
22
23
24
25
26
27
28
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3 1. I am the Southwest Regional Director for Lands and Minerals for the United
4 States Department of Agriculture, Forest Service ("Forest Service"). I have held this
5 position since 2014. I have 30 years of experience with the Forest Service. I have held
6 positions at all levels of the organization, with increasing levels of responsibility with the
7 Lands and Minerals Program, including working at the National Headquarters in
8 Washington, D. C.
9 2. In my role as Regional Lands and Minerals Director, I oversee the delivery of the
10 Forest Service's Southwest Region's Lands program, which includes implementation of
11 the Southeast Arizona Land Exchange and Conservation Act, set forth in Section 3003 of
12 the Carl Levin and Howard P. "Buck" McKeon National Defense Authorization Act for
13 Fiscal Year 2015, signed into law on December 19, 2014, as Public Law (P.L.) 113-291;
14 and codified at 16 U.S.C. § 539p ("Act").
15 3. I make this declaration based on my personal knowledge, my experience working
16 for the Forest Service, and information made available to me in my official capacity.
17 4. I am familiar with the above-captioned lawsuit and the Motion for Temporary
18 Restraining Order and Preliminary Injunction filed by Plaintiff. I am also familiar with
19 the Resolution Copper Project and Land Exchange ("Project"), including the land
20 exchange mandated by Congress pursuant to the Act.
21 5. On January 15, 2021, the Forest Service published the Final Environmental Impact
22 Statement ("FEIS") for the Project.
23 6. After publication of the FEIS for the Project, the Secretary of Agriculture, acting
24 by and through the Forest Service, is directed by the Act to convey all right, title, and
25 interest of the United States in and to the Federal land, as defined in the Act, to
26 Resolution Copper.
27 7. Due to the several steps left to close on the land exchange, including but not
28 limited to, executing a land exchange agreement, receiving the appraisal for the Federal
1
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1 land, reviewing the Federal land appraisal, and drafting detailed escrow instructions,
2 Resolution Copper and the Forest Service will not exchange deeds to the Federal and
3 non-Federal lands, as defined in the Act, any sooner than 55 days after the publication of
4 the FEIS.
5 8. Additionally, with respect to subsidence effects to the surface of the exchange
6 parcel caused by underground mining activities, the FEIS at ES-3.2 states that "[t]he
7 subsidence zone at the Oak Flat Federal Parcel would break through the surface at mine
8 year 6 ... " (i.e., the FEIS effects analysis projects that a surface crater will start to appear
9 six years after active mining commences).
10
11 I declare under penalty of perjury that the foregoing is true and correct.
12
13 Executed on this 21st day of January, 2021.
14
15
16
Tracy Parker
17
18
19
20
21
22
23
24
25
26
27
28
2
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Exhibit B
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01/21/21 232 2 of 4
ISECOND PROCLAMATION)
R ~roclan1ation
1--'N
I ::,
1--' p.
w
• ernment for the fiscal p.:ar ending Junc thirtieth, eighteen lrnnd1 ed and
ninety-eight, and for other purposes," do proclaim that the Tonto National
Forest is hereby enlarged to include the said additional lands, and that
the boundaries of the aforesaid :--;'ational Forest are now as shown on the
diagram forming a part hereof;
•
Excepting from the force and effect of this proclamation all lands
which arc at this date embraced in any legal entry or covered by any law-
ful filing or sdcclion duly of record in the proper United States Land
Orfice, or upon which any valid settlement has been made pursuant to law,
if 1he statutory period within which to make entry or filing of rcc<ml has
not expired; and also excepting all lands which at this date are embraced
within any withdrawal or reservation for any use or purpose with which
this reservation for forest uses is inconsistent : Provided, that these excep-
tions shall not continue to apply to any particular tract of land unless the
ei1t ryman, sci tier, or claimant continues to comply with the law under
which the entry, filing, or sci tlement was made, or unless the reservation
or withdrawal with which chis reservation is inconsistent continues in force;
not excepting from the force and effect of this proclamation, however, any
part of the National Forest hereby enlarged which may have been with-
drawn to proccct the coal therein, but t his proclamation does not vacate
any such coal land withdrawal; and provided that these exceptions shall
not apply to any land embraced in any selection, entry, or filing, which
may have been permitted to remain of record subject to the creation of a
permanent reservation; and provided also I hat since the withdrawal made
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Q)'_ this proclamation and any_withdrawal heretQfore n'lade for national irri-
gation works are con?iste!!_t, both shalLbcdle.ctiy_~ _lJJ~Ql! the la~_d_ wi1:£-
<lrawn,bL1tthe- "~ithdrawal for national irrigation wurk,; shall be the
dominant one and may, when nccc",ary, be _changed to a \Vithclrawal for
irrigation from such works.
\Varning is hereby given to all persons not to make settlemc11t upon
any of the lands reserved by this proclamation, unless and LI n ti! they are listed
by the Secretary of Agriculture and opened to homestead settlement or
entry by the Secretary of the Interior under the Act of Congress, approved
June eleventh, nineteen hundred and six, entitled, "An Act To provide
for the entry of Agricultural lands within forest reserves:" Provided,
that lands heretofore restored to settlement or entry under the provisions
of the foregoing a~t shall he excepted from the force and effect of this
proc:lamation. ·
1tt 1ttllitne.S.S 1ttllhereof, I hc1ve hereunto set my hand and caused
the seal of the United State., w be affixed.
DoNE at the City of \Yashington this 1.1th day of January,
[SEAL.]
By the Pres_ident:
in the year of our Lord one thousand nine hundred
and eight, and of the Independence of· the United
States the one hundred and thirty-second.
THEODORE ROOSEVELT
•
ELIHU ROOT
Secretary of State.
[ :'\ 0. 795. J
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R.18£: R.17E.
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.... .J. - ' - I... .l. ..,1_J _____,______ _____________________...:______________ j
R.12E..
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Exhibit C
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HEINONLINE ■
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TREATY WITH THE APACHES. JULY 1, 1852. 979
FRANKLIN PIEROE,
PRESIDENT OF THE UNITED STATES OF illERICA: July 1, 18ol.
WHEREAS a Treaty was made and concluded at Santa Fe, New Mexi- Preamble.
co, on the first day of July, in the year of our Lord one thousand eight
hundred and fifty-two, by and between Col. E. V. Sumner, U. S. A.,
commanding the 9th Department, and in charge of the Executive Office
of New Mexico, and John Greiner, Indian Agent in and for the Terri-
tory of New Mexico, and acting Superintendent of Indian Affairs of said
Territory, representing the United States, and Cuentas Azules, Blancito,
Negrito, Captain Simon, Captain Vuelta, and Mangus Colorado, chiefs,
acting on the part of the Apache nation of .Indians, situate and living
within the limits of the United States, which treaty is in the words fol-
lowing, to wit :
Articles of a Treaty made and entered into at Santa Ft1, New Mexico,
on the first day of July in the year of our Lord one thousand eight
hundred and fifty-two, by and between Col. E. V. Sumner, U. S. A.,
commanding the 9 Department and in charge of the Execdtive Office of
New Mexico, and John' Greiner, Indian Agent in and for the Territory
of New Mexico, and acting Superintendent of Indian Mairs of said
Territory, representing the United States, and Cuentas, Azules, Blancito,
Negrito, Capitan Simon, Capitan Vuelta, and Mangus Colorado, chiefs,
acting on the part of the Apache Nation of Indians, situate and living
within the Jimits of the United States.
ARTICLE 1. Said nation or tribe of Indians through their authorized Authority ot
Cbiets aforesaid do hereby acknowledge and declare that they are law- Ui:nted f:~
fully and exclusively under the laws, jurisdiction, and government of the ac ow 8
United States of America, and to its power and authority they do hereby
submit.
ARTICLE 2. From and after the signing of this Treaty hostilities Peace to ulat.
between the contracting parties shall forever cease, and perpetual peace
and amity shall forever exist between said Indians and the government
and people of the United States; the said nation, or tribe of Indians, The Apaches
hereby binding themselves most solemnly never to associate with or give not to ~ t
countenance or aid to any tribe or band of Indians, or other persons or ~~!98 in
powers, who may be at any time at war or enmity with the government ·
or people of said United States.
ARTICLE 8. Said nation, or tribe of Indians, do hereby bind them- Good ~
selves for all future time to treat honestly and humanely all citizens of :}9:e°fr:i=ena
the United States, with whom they may have intercourse, as well as all states by na-
persons and powers, at peace with the said United States, who may be ~: at peace
lawfully among them, or witb whom they may have any lawful intercourse. tbem.
ARTICLE 4. All said nation, or tribe of Indians, hereby bind them- Cases or i·
selves to refer all cases of aggression against themselves or their property ~onon em
and territory, to the government of the United States for adjustment, and ~:!':Uri;:d to
to conform in all things to the laws, rules, and regulations of said govern- Laws to be
ment in regard to the Indian tribes. conformed to.
ARTICLE 5. Said nation, or tribe of Indians, do hereby bind them- Provi!ions
selves for all future time to desist and refrain from making any "incur- ~F 0
0
i{" .
sions within the Territory of Mwco" of a hostile or predatory character; co. ua-
and that they will for the future refrain from taking and convf'ying into
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980 TREATY WITH THE .APACHES. Jun l, ISDJ.
captivity any o£ the people or citizens of Mexico, or the animals or pro•
perty of the people or government of Mexico; and that they will, as
soon as possible after the signing of this treaty, surrender to their agent
all captives now in their possession.
Persona h\jur- ARTICLE 6. Should .any citizen of the United Statll&, or other person
g\ :.i!f:ca•
th or persons subject to the laws of the United States, murder, rob, or other-
puJmec1. an wise maltreat any Apache Indian or Indians, he or they shall be arrested
and tried, aud upon conviction, shall be subject to all the penalties pro-
vided by law for the protection of the persons and property of the people
of the said States.
Flee~ ARTICLE 7. The people ot tht United States of .America shall have
Off! the Apache free and safe passage through the territory of the aforesaid Indians,
territ.ory. under such rules and regulations as may be adopted by authority of the
said States.
Military~ ARTtcr.E 8. In order to preserve tranquillity and to aft'ord protection
~~•hand to all the people and interests of the contracting parties, the government
be•=:_
t.o of the United States of America will establish such military posts and
ed. agencies, and authorize such trading houses at such times and places as
the said government may designate.
Territorial ARTICLE 9. Relying confidently upon the justice and the liberality
~~~• t.o be of the aforesaid government, and anxious to remove every possible cause
'"\lute that might disturb their peace and quiet, it is agreed by the aforesaid
Apache's that the government of the United States shall at Us earliest
convenience designtt,te, settle, and adjust their territorial boundaries, and
pass and execute in their territory such laws as may be deemed condu-
cive to the prosperity and happiness of said Indians.
p 188entstothe ARTICLE 10. For and in consideration of the faithful performance
Apaches. of all the stipulations herein contained, by the said Apache's Indians, the
government of the United States will grant to said Indians such dona-
tions, presents, and implements, and adopt such other liberal and humane
measures as said government may deem meet and proper.
When treaty ARTICLE 11. T)lis Treaty shall be binding upon the contracting
t.o be binding. parties from and after the signing of the same, subject only to such mo-
difications and amendments as may be adopted by the government of the
How eon- United States; and, finally, this treaty is to receive a liberal construction,
etraed. at all times and in all places, to the end that the said Apache Indians
shall not be held responsible for the conduct of others, and that the go-
vernment of the United States shall so legislate and act as to secure the
permanent prosperity and happiness of said Indians.
In faith whereof we the undersigned have signed this Treaty, and af-
fixed thereunto our seals, at the City of Santa Fe, this the first day of
July in the year of our Lord one thousand eight hundred and fifty-two.
WITNESSES:
F, A. CUNNINGHAM,
Paymaster, U. S. A.
E. v. SUMNEfi! .1ti[SEAL,)
Bte. (bl. U. 8. A. com'fl. 9th ckarge
of .&ecutiH O.IJke 'If. Ne?D ea,i,oo.
J, C, McFERRAN, JOHN GREINER, [SEAL,1
1.s4 :U 8d l11f. .Aet. Alt. .4.i!j. Gen. .Act. Sip, Indian Aj'ah, Neu, Medco.
CALEB SHERMAN, CAPITAN VUELTA, his x mark (SEAL. J
ll"RED. SAYNTON. CUENTAS AZULES, his x mark (SEAL.)
CHAS, McDOUGALL, BLANCITO - , his X mark (SEAL.]
S11rgtnn, U. S. A.
S.U.BAIRD, NEGRITO - - , his x mark (SEAL,]
Witnue iP t1M ,igning of J!anp Cblorado.
JOH:q ''OPE.1. CAPITAN SlllON, his x mark [SEAL.]
B"t. <..<,pe. T. .E. MANGUS COLORADO,hln:mark [sEA.t.)
.AND WHEREAS the said Treaty havhlg been submitted to the Senate
of the United States, for its constitutional action thereon, the Senate did,
on the twenty-third day of March, one thousand eight hundred and fifty-
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982 TREATY WITH THE 1l{ETHERLANDS. AUGUST 26, 185!.
.A. PROCLAMATION.
WHEREAS a Supplemen~ Commercial Convention between the Uni-
ted States of America and His MaJesty the King of the Netherlands, was
concluded and signed by their Plenipotentiaries, in this city, on the twenty-
sixth day of August last, which Supplementary Convention is, word for
word, as follows : -
The United States of America ' De Vereenigde Staten van Ame-
and His Majesty the King of the rika en Zyne Majesteit de Koning
Preamble. Netherlands, being desirous of plac- der Nederlanden, den bandel, tus-
ing the commerce of the two coun- schen de beide landen wenscbende,
tries on a footing ot' greater mutual te brengen op eenen voet van groo-
equality, have appointed as their tere wederkeerige gelykheid, bebben
plenipotentiaries for that purpose : daartoe tot hunne GevoJmagtigden
that is to say: the President of the benoemd, te weten : de President
ltegotiat.ora. United States of America: Daniel der Vereenigde Staten van Ame-
Webster, Secretary of State of the rika, Daniel Webster, Secretaris van
United States, and His Majesty the Stant der Vereenigde Staten; en
King of the Netherlands, Fra.n9ois Zyne l\Iajesteit de Koning der Ne-
Mathieu W enceslas Baron Testa, derlanden, Francois Mathieu Wen-
Comtnander of the Royal Grand ceslas Baron 'festa, Kommandeur
Ducal 'Order of the Crown of Oak der Orde van de Eikenkroon van
of Luxembourg, Knight of the Royal Luxemburg, Ridder der Orde van
Order of the Lion of the Nether- den Nederlandschen Leeuw, Ridder
lands, and of the Grand Ducal Or- der groot Kertogelyke Orde van den
der of the White Falcon, third class ; Witten Valk, 3d klasse, Raad van
Counsellor of Legation, and His Legatie en Hoogstdeszelfs Zaakgc-
Majesty'• Charge d'Atfaires to the lastigde by de Regering der Ve-
GWvemment of the United States of reenigde Staten van Amerika; de-
America; who, after having com- welke, na elkander hunne in goeden
munic.ated to each other their re- en behoorlyken vorm bevondene
spective powers, found in good and wederzydsche volmagten te hebben
due form, have agreed that, for and medegedeeld, zyn overeengekomen
in lieu of the first and second arti- dat, voor en ter vervanging van bet
Vol. viii. p. 1124. cles of the treaty of commerce and eerste en tweede artikel Yan bet
navigation, signed at Wasbington on handels-en scbeepvaartverdrag, den
the 19th of January, 1839, between 19 January, 1889, te Washington,
the high contracting parties, the fol- tuscben de hooge contracterende
lowing articles shall be substituted: partyen geteekend, de volgende ar-
tikelen zullen worden in de plaata
gesteld:
.ARTICLE I. .ABTIXEL L
Pl'O'Yisions re- Goods and merchandise, whatever Goederen en koopwaren, over-
specting duties. their origin may be, imported into or scbillig welke derzelver herltomst
exported from the ports of the Uni- zy, met Nederlandsche schepen
ted States, from and to any other wordende in of nit gevoerd, in of de
country, in vessels of the Nether- havens der Vereenigde Staten, Ta!,l
lands, shall pay nf higher .or.other ell naar elk ander land, zullen geene
duties than shall be levied on the , hoogere noch andere regten betalen,
ER207
Case 2:21-cv-00050-SPL Document 41 Filed 02/03/21 Page 1 of. 1.
(252 of 274)
ED _LODGED
CEIVED _ COPY
UNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA \FEB O 3 2021
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WITNESS LIST OtSffilOT or AAIZONA
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Case Number: 2:2 l-cv-00050 Judge Code: _S_P_L_ _ Date: February 3, 2021
ER208
Case 2:21-cv-00050-SPL Document 42 Filed 02/03/21 Page 1 of 1
(253 of 274)
_LODGED
UNITED STATES DISTRICT COURT _ RECEIVED _ COPY
DISTRICT OF ARIZONA
FEB O 3 2021
EXHIBIT LIST
CU.AK U S D ISTHICT GQUt:"'
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Case Number: 2:21-cv-00050 Judge Code: _S_P_L_ _ Date: ~~~~~!:;:±=:..!D l,~y~
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In Description Stipulated
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ER209
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(254 of 274)
-LODGED
- RECEIVED _ COPY
Admitted
Exhibit Marked Description Stipulated
In
No. ForID
Evidence
103 1-- ~#1,\ September 12, 1972 Findings of Fact by the ICC X
ER210
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EXHIBIT A
ER211
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APACHE STRONGHOLD .. ._
POB 766 SAN CARLOS, AZ ~5550
.
RE: Council NHPA §106 Compliance Review Pursuant to 36 C.F.R. §800.9(a) for the Proposed
Resolution Copper Mine and Southeast Arizona Land Exchange Undertakings
We hereby acknowledge and incorporate by reference the words of advice and warning
offered to you and other federal and state historic preservation officials and responsible parties
by the respected Apache elder, White Mountain Apache Tribe Cultural Resource Director, Ramon
Riley, in his November 9, 2020 open letter to U.S. Federal Government Trustees and Tribal
Leaders, “Subject: Proposed Resolution Copper Mine and Land Exchange Impacts on First
Amendment and Human Rights to Religious Freedom, Exercise and Beliefs.” Further, we
reference Director Riley’s letter of September 11, 2020 and request that Director Riley’s letters be
made part of the administrative record in the Undertakings’ NHPA Section 106 process. Copies
of Director Riley’s letter are attached.
This correspondence and the Council’s ongoing agency compliance review pursuant to 36
C.F.R. § 800.9(a) comes at an ideal time. It is apparent that the U.S. Forest Service (“USFS”)
seeks to execute a flawed programmatic agreement (“PA”)(“version 8” of July 27, 2020) to
conclude the NHPA Section 106 process for the proposed above-referenced Undertakings.
It is also apparent that USFS does not intend to consult with tribes, the Apache Stronghold,
the public, or other consulting parties on any sort of consistent or transparent basis. Indeed, USFS
appears unable or unwilling to establish required measures to avoid and minimize adverse effects
to historic properties adversely affected by the Undertakings. USFS has thus far dodged its duties
and legal obligations to consider our human rights and constitutional rights to the free exercise of
our Apache religion and our religious beliefs within our traditional land, especially our Chi’chil
Biłdagoteel (“Oak Flat”) religious place and National Register District, all of which is targeted for
deliberate and forewarned destruction by the proposed mining.
We also want to be sure that the Council understands that the Tribe’s detailed review of
that July 27, 2020 “version 8” of the PA, and the Tribe’s September 3, 2020 letter by Chairman
Terry Rambler to Tonto National Forest Supervisor Neil Bosworth, were both produced under an
unnecessary and suddenly short deadline set on us by USFS after eight months of undue and
unexplained USFS delays. The Tribe’s official review of the PA has made clear to our Tribe’s
Exb.1 ER212
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17,000 members that our USFS federal trustee appears unwilling to properly consult with affected
tribes, our organization, other consulting parties, and the public regarding necessary remedial
changes to the version 8 draft PA.
“…we recommend the TNF now move rapidly to clarify its remaining schedule and
framework moving forward to conclude the Section 106 process as it addresses
the concerns noted below and the comments provided by other consulting parties.
This summation should include milestones for any future consultation meetings
and for providing responses to existing comments.”
The USFS’ misconduct of the Section 106 process to date spotlights lack of transparency
and disregard of core responsibilities under the Section 106 regulations at 36 CFR Part 800. Given
our experiences with the USFS—especially mistreatments of our other sacred traditional cultural
properties, most particularly Dził Nchaa Si’an (“Big Seated Mountain” aka “Mount Graham”) and
Dził Cho (San Francisco Peaks)—this systemic misconduct has continued to proceed despite our
attempted corrections, for decades.
USFS officials now attempt, once again, to ignore their lawful obligations to consider the
integrity, the cultural and religious significance of affected Apache and regionally shared Native
American historic and traditional cultural properties. The USFS’ failures include dereliction of
legal requirements to develop and evaluate feasible alternatives or modifications to the
Undertakings—such as alternative methods of mining, earth surface conservation, and disposal of
mine wastes—that could avoid, minimize, or mitigate adverse effects to our historic and traditional
cultural properties and corresponding effects the Undertakings to our cultures and sacred places.
USFS has most especially failed to meet its obligations to consider the Chi’chil Biłdagoteel
National Historic District (“Oak Flat”), the complex of sacred sites targeted by and already suffering
adverse effects from, these disrespectful, controversial and harmful Undertakings. Given that the
elected method of copper mining enabled by the proposed land exchange would obliterate Chi’chil
Biłdagoteel via massive, landscape-scale earth surface subsidence and dewatering, the Council
and other signatories stand on the verge of complicity in deception—by USFS the Undertakings’
Resolution Copper proponent, the joint venture of Rio Tinto and Broken Hill Properties (“BHP”)—
to accept the fallacy of “the continued access to Oak Flat” as a “mitigation initiative.”
1
One pertinent excerpt from that July 23, 2020 Guidance:
Extraordinary circumstances in the current situation warrant case by case adjustments to this
process. Specifically, the Section 106 deadlines for the response of State and Tribal Historic
Preservation Officers, and Indian tribes and Native Hawaiian organizations (NHOs) that attach
religious and cultural significance to historic properties affected by the undertaking, regardless of
its location (collectively, states/tribes/NHOs), will be considered paused while, due to the COVID-
19 outbreak, an office is closed or work conditions are such that the states/tribes/NHOs are unable
to carry out their Section 106 duties or statutory rights to consultation in a timely fashion (e.g.,
staff unavailability due to health reasons; restricted access to records; state or tribal laws
requiring hard copy records; lack of Internet access or telework capabilities). The clock will
resume once the conditions are no longer in effect.
2
Exb.2 ER213
(258 of 274)
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That temporary offering is both short-lived and cruel because it would give us access to
nothing but the reality of aggravated and compounded cumulative transgenerational pain and
trauma, eternal reminders of profound disrespect and abuse by our “trustee,” to be entombed in
a massive and agonizing crater of desecration where Chi’chil Biłdagoteel had existed, since time
immemorial as a place of peace.
This is no different than Resolution Copper’s co-parent corporation Rio Tinto’s deliberate
destruction of the Puutu Kunti Kurrama and Pinikura (“PKKP”) peoples’ sacred place and heritage
site, Jukkan, in present-day Western Australia's Pilbara region earlier this year. That human rights
abuse and deliberate desecration caused an “investor revolt” within Rio Tinto, forcing the
resignation of multiple Rio Tinto executives, including CEO Jean-Sebastien Jacques. In the
aftermath, Rio Tinto’s Board Chairman, Simon Thompson, declared:
Jacques’ pledge seems to us dubious, at best. Just more empty words from strange people
who would do anything to get what they want here. Rio Tinto gives every indication that it will
continue, in defiance of its own policies and international law, to deny and stomp on essential
human and Indigenous peoples’ rights to the land Resolution has targeted.
USFS has avoided compliance with the Section 106 regulations despite multiple requests,
including last year’s letters to USFS from the Arizona State Historic Preservation Office (“SHPO“)
and the Council. To assure that the Council and other consulting parties are informed regarding
the views of Apache Stronghold, we supplement the San Carlos Tribe’s comments on PA version
8 with our review of concerns with the USFS’ attempted exercise of the Section 106 process so
far.
Our comments on procedural and content deficiencies in the Section 106 process for the
Undertakings make clear that USFS has seriously compromised the process. The significance of
Chi’chil Biłdagoteel, and Apaches’ long-running, highly publicized and internationally-reported
defense of our sacred traditional cultural property on our aboriginal land, was well-known to both
Rio Tinto and BHP, as well as the USFS, long before they successfully lobbied Senator John
McCain, Representative Ann Kirkpatrick, and our other “trustees” to insert an 11th hour rider into
the “must pass” Defense appropriations bill on the eve of a looming government shutdown in
December 2014.
We urge and advise that the Section 106 process be re-initiated with a transparent and
detailed agenda, then conducted in proper conformance with regulations at 36 CFR §800,
applicable USFS agreements and policies, and relevant memoranda and guidance documents of
the Council and the U.S. Department of the Interior National Park Service.
2“Rio Tinto CEO, top executives resign amid cave blast crisis,” by Nick Toscano and Hamish Hastie, Sydney Morning
Herald (September 11, 2020)(“Mr. Jacques, Mr. Salisbury and Ms. Niven – whose department oversees community
relations – were last month stripped of $7 million of their 2020 bonuses after a board-led review found they had to bear
some responsibility.”), https://www.smh.com.au/business/companies/rio-tinto-ceo-top-executives-resign-amid-cave-
blast-crisis-20200910-p55uf8.html .
And see, e.g., “Grieving after Rio Tinto blast, Aboriginal owners fear Fortescue plans,” by Nick Toscano, Sydney
Morning Herald (October 12, 2020) https://www.smh.com.au/business/companies/grieving-after-rio-tinto-blast-
aboriginal-owners-fear-fortescue-plans-20201012-p564az.html .
3
Exb.3 ER214
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Unless this is done, the Council may find that termination must be considered per 36 CFR
§800.7, to preserve semblances of integrity in NHPA administration and oversight, to demonstrate
fidelity to Federal Government Indian and public trust responsibilities, and to avoid further
prejudices, undue burdens and harms to us, and violations of the legal, constitutional, and human
rights of Apache people and other affected Native American tribal members.
The San Carlos Apache Tribe, on behalf of its members such as those of us who have
assembled as Apache Stronghold, and most other consulting parties have been dutiful
participants in the various Section 106 process attempts for the Undertakings since 2015. Our
Tribe has allocated limited staff resources in efforts to protect Chi’chil Biłdagoteel and to assist
USFS in meeting its statutory and regulatory obligations without infringing on our legal and human
rights.
Our Tribe sent many of our most respected elders to collaborate in the Ethnographic and
Ethnohistoric Study of the Superior Area, a study mostly ignored by USFS. We participated in at
least fifteen (15) USFS-sponsored meetings regarding the Undertakings. We submitted at least
seven (7) substantive sets of comments on prior drafts of the PA and on documents prepared
pursuant to the National Environmental Policy Act (“NEPA”).
Other tribes, the Arizona SHPO, and the Council have been similarly diligent in assisting
USFS in the proper conduct of the Section 106 process. The primary product of collective
diligence on the part of the consulting parties, version 8 of the PA, combines failures to meet basic
regulatory requirements with unorthodox attempts to use the PA to advance various corporate
interests and other purposes not contemplated under the NHPA or its implementing regulations.
The substantial investments by our Tribe and other parties, including the Council, in
assuring legitimacy and improving the USFS’ faithless performance of its Section 106 duties, have
yet to translate into adequate USFS performance. In particular, despite information and advice
from consulting parties, USFS has failed to develop and evaluate alternatives or modifications to
the Undertakings that could avoid or minimize adverse effects on historic properties. Neither has
USFS explained its rationales for ignoring or discarding the information and advice that has been
forthcoming from the consulting parties. USFS has yet to simply identify, describe, and evaluate
the functions, attributes, and values of our historic properties, especially including Chi’chil
Biłdagoteel. USFS has yet to explicitly consider our properties’ religious functions, attributes, and
values. These steps are prerequisite to USFS completion of mandatory USFS considerations of
the adverse effects that the Undertakings will have on these and all other historic properties.
USFS failures to administer the Section 106 process transparently and in accord with the
NHPA and the regulations at 36 CFR Part 800 are adding disrespectful insults to the injuries that
Apaches and other traditional religious practitioners are experiencing with the industrial damage,
alteration, and destruction of Chi’chil Biłdagoteel.
USFS failures fall into four overarching and aggregating categories of defects. Defects
One and Two are procedural. Defects Three and Four are substantive, content-specific failures
stemming from USFS derelictions in its Indian trust responsibilities, in its government-to-
government consultation duties, in its obligations to analyze and disclose adverse effects on
historic properties, and in its mandates to seek to avoid, minimize, or mitigate adverse effects.
What follows here below is a review of those four fundamental defects, intended to assist
the Council with its compliance review and to guide USFS in the necessary reboot of the Section
106 process. We think that reboot should include an admission of errors in fulfilling of fiduciary
4
Exb.4 ER215
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responsibility and should initiate a truthful reconciliation with the Native nations, tribes, and tribal
members and citizens and harmed and disrespected by USFS and Rio Tinto–BHP conduct to date.
Defect One: Bifurcation of the 106 Process and Exclusion of Consulting Parties
In a manner inconsistent with both 36 CFR Part 800 and authoritative advice provided by
consulting parties, USFS has excluded tribal consulting parties from its communications with
government agency consulting parties, and vice versa. The regulations at 36 CFR Part 800 do not
allow agencies to make unilateral selections of which consulting parties to communicate with. The
regulations do not enable agencies to select which agency determinations to disclose to different
subsets of consulting parties, or to presume to speak on behalf of sovereign Indian tribes to others,
especially without prior informed written consent and without the presence of the tribes’ official
representatives. SHPO’s September 19, 2019 letter to USFS spotlights that defect: “tribal
consultation under Section 106 and the provisions outlined in 36 CFR Part 800 . . . has not
proceeded apace of other federal authorities guiding consultation with Native American tribes.”
Inconsistent and apparently biased and selective USFS attention to its consultative duties
is also seen in USFS failures—despite the Undertakings’ complexity, controversial nature, and
massive and unmitigated adverse effects on historic properties—to involve the public pursuant to
36 CFR §800.2(d). A conscientious non-governmental organization brought this deficiency to
USFS attention a year ago (Arizona Mining Reform Coalition letter to USFS Supervisor Bosworth,
November 4, 2019). Despite that appeal, USFS continues to exclude the public from participation
in the Section 106 process (other than commentary on the PA), to discount and disregard most
values linked to historic properties other than the scientific values associated with National
Register Criterion D, and to enable plans for the destruction of hundreds of historic properties
despite good options for effect avoidance and minimization. The result of USFS conduct and
decision making in the course of this alleged NHPA Section 106 process has been prejudicial and
detrimental to the tribal parties’ interests, and particularly to our interests and rights to the free
exercise of our traditional religion and the protection of our traditional sacred places within and
related to the Chi’chil Biłdagoteel sacred property and National Historic District.
The NHPA Section 106 regulations at 36 CFR Part 800 prescribe a protocol for a multi-
phased sequence of communications involving disclosures of federal agency plans and proposed
determinations intended as a basis for seeking informative comments from consulting parties and
the public. While it is understood that the Section 106 regulations are to be flexibly applied, it is
not permissible to distort or omit key steps—whether intentionally in bad faith, or negligently as the
result of a failure to exercise due care. Earlier phase consultations are, of course, intended to
serve as rational bases for procedural and substantive improvements in subsequent phases.
Instead of making use of the stepwise method, as prescribed, USFS has ignored NHPA in both
letter and spirit by excluding tribal consulting parties from participation in critical steps of the
Section 106 process. The San Carlos Apache Tribe’s letters of July 10 and September 30, 2019
advised USFS of this chronic defect.
On a parallel track, the SHPO’s letter of September 19, 2019 expressed concerns with
USFS’ management of the process and its substance:
“This letter is a follow up to and memorialization of the August 29, 2019 meeting
between TNF and SHPO staff regarding the Resolution Copper Mine
Programmatic Agreement (PA) and ongoing Section 106 Consultation. At our
meeting, SHPO reiterated our continuing concerns with the tribal consultation
process, which has not been accomplished in concert with the process laid out in
36 CFR Part 800.”
5
Exb.5 ER216
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The Council’s October 25, 2019 letter to USFS Supervisor Bosworth likewise expresses
concerns with “the lack of clarity on how the TNF has provided tribes with a reasonable opportunity
to identify concerns about historic properties; advise on the identification and evaluation of
properties of traditional religious and cultural importance to them; articulate their views on the
undertaking's effects on such properties; and participate in the resolution of adverse effects.” (See
at p.1, “Consultation with Indian Tribes”). The reason why it is unclear to the Council, to the SHPO,
and to the tribal parties is obvious and has nothing to do with the particular challenges of these
Undertakings: the USFS’ conduct is unrecognizable when compared with the standard required
practices and regulatory requirements.
The USFS December 5, 2019 response to the Tribe feigns innocence and ignorance:
“It is not clear form [sic] your letter, which ‘specific procedural requirements’ you
are referring to. The very purpose of the PA is to ensure the Forest is following the
legal requirements for section 106.”
As the Council is aware, and as the Tribe and other parties have repeatedly advised USFS,
even as consultations are essential foundations for PA preparation, any procedures set forth in
an agreement document cannot substitute for specific procedural requirements to consult with the
Tribe and other consulting parties regarding proposed methods to be used: to identify historic
properties, per 36 CFR §800.4(b); to make evaluations of significance and determinations of
eligibility, per §800.4(c); to provide assessments of adverse effect, per §800.5; and, to compose
reasonable resolutions of adverse effect, per §800.6.
PA version 8 reveals that USFS has begun taking some of these required steps, but this
has not been done in consultation with the tribal consulting parties. The attempt in PA version 8
to exclude tribes from the list of consulting parties is as emblematic of unreliable USFS
performance of its duties as it is harmful to the special relationship with tribes that USFS officials
are sworn and otherwise legally bound to uphold.
The Section 106 regulations and other rules that define lawful USFS conduct also prohibit
USFS actions that harm or diminish tribal sovereignty. USFS has defied these rules and
notifications from our Tribe that we have not been properly consulted about the USFS “Tribal
Monitor Program.” This “Program” has been co-conceived and fostered by USFS and the
Undertakings’ proponent and administered by a contractor guided by USFS officials and
financially controlled by Rio Tinto-BHP through Resolution Copper.
The “Tribal Monitor Program” must be disclosed and analyzed for what it is: a USFS-
sponsored corporate industrial operation to recruit and employ individual tribal member-citizens
to provide USFS and Rio Tinto-BHP-Resolution Copper with sensitive cultural information that is
privileged and collectively owned by the affected tribes, all in the absence of prior, fully informed,
written consent from tribal governing bodies. The San Carlos Apache Tribe’s letters of July 10 and
September 30, 2019 advised USFS to suspend this “Program” and all other attempts to convert
invaluable, tribal cultural, historical, and geographical knowledge into a “currency” for USFS and
the Undertakings proponent to “purchase” compliance with NHPA, NEPA, and the Southeast
Arizona Land Exchange and Conservation Act.
government consultation.” USFS continues to champion that operation and to advocate for its
commercial collaborators’ unauthorized intrusion into the Tribes’ sovereign affairs. Despite
requests from multiple parties, USFS has failed to clarify, specify, and consult within the Section
106 and NEPA processes about the roles of the “Tribal Monitor Program.” Ongoing
implementation of that “Program” has corrupted various phases of an already complex and
mismanaged Section 106 process, one sorely lacking in demonstrated good faith by USFS.
We once again invoke the Council’s trust responsibilities for tribal welfare and assistance
in suspending the “Tribal Monitor Program” pending proper completion of the required
government-to-government consultations with our Tribe and other affected tribes. In light of USFS
resistance to such consultations, Apache Stronghold now must insist on binding and legally
enforceable assurances that any and all collectively owned Western Apache traditional
knowledge already captured by USFS and the various third-party contractor(s) without proper
authorization and prior informed written consent cannot and will not be used for any purpose,
including NHPA and NEPA compliances, without the prior informed written consent of the tribal
owners.
The Council appears to also be aware that Section IX of PA version 8 includes USFS
schemes, only recently announced to tribal officials using means other than government-to-
government consultations, regarding “tribal programs” supported by “four financial trusts that
would provide 40 years of funding for a variety of programs to meet a number of specific purposes”
linked to the mitigation of the Undertakings (USFS Supervisor Bosworth July 24, 2020 letter to
San Carlos Apache Tribe Chairman Rambler). This apparent further attempt to co-opt tribal
government prerogatives and transfer duties for the avoidance, minimization, and mitigation of
adverse effects from the USFS to private third parties, even if permissible, is subject to public
disclosures and tribal consultations pursuant to NHPA, NEPA, and other federal laws and rules.
USFS is not meeting these essential fundamental mandates. Instead, USFS is attempting
to authorize or legitimize these still-vague schemes through very late insertion in a “final draft” PA,
along with the sudden introduction of a new private commercial signatory party and intended PA
beneficiary (more about this trickery is presented in Defect Four here below). Those daring and
provocative stunts are patently unacceptable in any legitimate Section 106 process, especially
because the USFS subsequently informed Apache tribal officials that the USFS is not providing
for any tribal consultation about it, only accepting written comments— thereby effectively
terminating the Section 106 process on the Undertakings.
We urge the Council to assist USFS in consulting with tribal governments in good faith
about the precise roles in the Section 106 process of both its proposed “Tribal Monitor Program”
and the proposals outlined in the July 24, 2020 USFS letter and PA Section IX. We Apaches are
under no obligation, with or without the overdue government-to-government consultation, to
further assist USFS or the proponent of the Undertakings in superficially satisfying their legal
obligations or enabling their bad faith and self-serving endeavors to manipulate the Tribe and its
members, and the other tribes and their members, with such schemes.
Defect Four: Inattention to Adverse Effects to Historic Properties and Impediments to Free
Exercise of Religion and Undue Burdens on Religious Beliefs
Neither the Section 106 process nor the NEPA process for these Undertakings have
contributed materially to any plans other than to do no more than generally and casually note just
some of the adverse and cumulative effects of the Undertakings on the Chí’chil Biłdagoteel
Historic District and multi-tribal sacred place. Hundreds of other historic properties, the vast
majority of which were created and are cared for by American Indians, are also being targeted for
imminent alteration or complete obliteration. USFS failure to analyze feasible alternate mining
methods, or to disclose and consult with the Tribe about the substantive results and treatment
7
Exb.7 ER218
(263 of 274)
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options emerging from those analyses, indicates that the Undertakings will violate and destroy
Chí’chil Biłdagoteel and the many values and historic properties there and nearby.
Indeed, actions by USFS and Rio Tinto-BHP-Resolution Copper already have been
inhibiting and unduly burdening the free exercise and beliefs of members of American Indian
religions. They certainly are unjustly encumbering and unduly burdening our religious beliefs and
violating our senses of place, vitality, security, identity, health and wellness.
USFS has also failed to analyze and consider the adverse effects of prior undertakings in
relation to values other than scientific values or National Register criteria other than Criterion D.
These prior and ongoing undertakings include the many drilling sites, road “improvements,” and
other surface and subsurface alterations, including many actions the Tribe sees as adverse and
cumulative effects within and around the boundaries of Chí’chil Biłdagoteel. Neither the individual
USFS permits issued with “no adverse effect” determinations for those subsidiary undertakings,
nor the proposed land exchange’s Draft Environmental Impact Statement (“DEIS”), nor any of the
eight (8) draft PAs, account for (much less analyze or resolve) the adverse effects and impacts
those actions have had and are continuing to have.
As the Tribe has previously informed USFS, these significant environmental impacts and
adverse effects specifically include impacts, effects, and undue impositions on the free exercise
and beliefs of Apache religion and on the ability of myself and other Apache people to avail
ourselves of the unique, place-based spiritual and emotional benefits of exercising our religious
beliefs without the encumbrances of drilling sites, wells, roads, and other industrial intrusions.
Neither the draft PA versions 1–8 nor the DEIS contain either general planning approaches or
specific protocols for avoiding or reducing adverse effects to historic properties, except through
the additional and compounding adverse effects of rote archaeological testing and data recovery.
USFS has also failed to fulfill its binding legal duties to analyze and consider the
Undertakings—pursuant to NEPA, NHPA, the First Amendment’s Free Exercise Clause, the
Religious Freedom Restoration Act (“RFRA”), as amended, and other legal requirements—in terms
of cumulative effects. Neither the DEIS nor the Section 106 process has heretofore disclosed,
considered, or analyzed quantitative or qualitative dimensions of current, reasonably foreseeable,
and cumulative adverse effects to the cultural and religious values and uses directly and indirectly
linked to the historic properties on the verge of destruction.
It bears particular mention that the USFS DEIS selected the preferred action alternative
for the Undertakings, an option that ensures the greatest number and magnitude of adverse
effects to historic properties. In the course of planning and evaluating these Undertakings and
other recent undertakings, USFS has overseen and is failing to regulate, avoid, minimize, or
mitigate the ongoing and cumulative transformation of our Pinal Mountain Apache cultural
landscape into an industrial wasteland. Apache Stronghold asks the Council to assist USFS in
providing due consideration, per NEPA, NHPA, 36 CFR § 800.5(a)(1), and our Constitutional and
statutory rights, of these and other cumulative effects.
The most recent example of a detail of the compounding defects we review here is the
unheralded and late-hour appearance of the Salt River Project (“SRP”) as a signatory party in
version 8 of the draft PA. SRP has a history of working against tribal rights and interests. The
surprise introduction of SRP as a signatory party to the “final draft” PA introduces another realm
of adverse effects to our historic properties and sacred places. This abrupt addition also implicates
facets of environmental equity and environmental justice. SRP involvements, plans, and attendant
issues require bona fide and good faith consultation—which has been, so far, non-existent—in
accordance with NHPA Section 106, NEPA, and other applicable laws and executive orders.
8
Exb.8 ER219
(264 of 274)
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For the in-progress Section 106 process, such consultation should be grounded in
adequate prior USFS disclosures of SRP involvements in the undertakings and SRP contributions
to the resolution of adverse effects. The apparent USFS attempt to add SRP into a final draft PA
and to provide coverage for undisclosed and distinct SRP undertakings further violates basic
tenets of good faith consultation per NHPA Section 106. We hope the Council will be effective in
advising USFS of its duties in leading consultative negotiations. Because this particular Section
106 process involves treaties, tribal sovereignty, religious freedom, basic human rights, and
hundreds of Register-eligible historic properties it deserves and requires utmost good faith which
has been sorely lacking so far on the part of USFS, SRP, and Rio Tinto-BHP-Resolution Copper.
We are grateful in anticipation of the Council’s thorough exercise of its federal oversight
authority to assist and advise USFS in this matter. We hope to see real progress toward the setting
of reasonable and enforceable limits to any further alteration to our ancestral lands, and to our
religious and cultural relationships to our imperiled ancestral lands.
We urge the Council’s attention to the 2015 “Ethnographic and Ethnohistoric Study of the
Superior Area, Arizona,” which is part of the administrative records in these NHPA and NEPA
processes. That study describes much of the historical depth, cultural breadth, and religious
potency of connections among individual historic properties and tribal member-citizens and
communities. The ninety-four (94) tribal representatives involved in that Ethnohistoric Study
affirmed that the Undertakings would cause direct, indirect, and cumulative adverse effects to
historic properties and to the individuals and communities that rely upon these properties for
health, vitality, identity, orientation, and other aspects of wellness, peace, and security. Although
USFS has recently given nominal attention to that study, it continues to ignore and omit
“community health” and “tribal health” place-based relationships in its Section 106 and NEPA
plans and analyses for the Undertakings.
Each and all of the four categories of defects discussed above could have been avoided
or remedied if USFS had consulted properly and acted accordingly in the attempted Section 106
process. Whatever USFS has and has not done—through negligence, incompetence, or lack of
good faith—however great the limitations on USFS discretion and however vigorous and costly its
bureaucratic machinations for the Undertakings, the USFS has - not
- administered a “process of
seeking, discussing, and considering the views of other participants, and, where feasible, seeking
agreement with them regarding matters arising” as required by the NHPA and the Council’s
implementing regulations.
USFS failures and miscarriages could and should have been averted or remedied on the
basis of either the prior communications from consulting parties, or the lessons USFS should have
learned over several decades from similar careless blunders and deliberate insults to tribes and
our sacred and holy places—Dził Nchaa Si'an (Mount Graham), Dził Cho (San Francisco Peaks),
Ba Whyea (Taos Pueblo’s Blue Lake), the Mountain Badger-Two Medicine Traditional Cultural
District, etc., etc. Instead, USFS now stubbornly proceeds to fast-track the destruction of Chí’chil
Biłdagoteel with presumed impunity, posing behind the façade of a defect-ridden pseudo-Section
106 process.
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In addition to its great cultural and religious importance to other tribes, Chí’chil Biłdagoteel
is profoundly central to the cultural and religious beliefs and practices of the San Carlos, White
Mountain, Cibecue, and Tonto Apaches. The Chí’chil Biłdagoteel National Register Historic
District unmistakably deserves and requires thorough and imminently respectful consideration in
terms of its manifold values and the many options available to avoid and reduce adverse effects
to those values. The adverse effects and significant impacts from the proposed Undertakings
would be a massive undue burden on our Constitutional, religious, and basic human rights. These
effects and impacts would all but eliminate our Tribe’s ability to practice and transmit to future
generations the religious ceremonies, values, beliefs, and practices necessary to sustain our
cultural existence.
Apache Stronghold declares that the time has come to expose USFS’ attempted unlawful
manipulations of the Section 106 process for the Undertakings and to reestablish the legitimacy
of these essential proceedings in accordance with the law. We gratefully anticipate Council’s
thorough review of our concerns and the concerns expressed by our Tribal government officials.
We particularly anticipate robust oversight and the responsible Federal Government officials’
reassertion of their Indian fiduciary duties and re-establishment of lawful, meaningful, and timely
government-to-government consultations regarding all matters related to the proposed
Undertakings.
In closing, we would like to acknowledge your recently announced and upcoming
retirement as the Executive Director and express our appreciation for your accomplishments in
the field of historic preservation and cultural heritage protection, particularly your influence and
leadership in providing for better understanding and respect for Native American traditional culture
and heritage, the preservation of our sacred places, and protection of our religious freedom and
human rights.
Sincerely,
x]rrJ
Wendsler Nosie, Sr. Ph.D.
APACHE STRONGHOLD
[email protected]
Attachments (2) (White Mountain Apache Tribe Cultural Resources Director Ramon Riley’s
letters of September 11, 2020 and November 9, 2020).
cc (2-page list, as follows):
San Carlos Apache Tribe —
Terry Rambler, Chairman, [email protected]
Tao Etpison, Vice Chairman, [email protected]
San Carlos Council Members
THPO, Vernelda Grant, [email protected]
Forest Manager, Dee Randall, [email protected]
Attorney General, A.B. Ritchie, [email protected]
Forester, Seth Pilsk, [email protected]
Ak-Chin Indian Community Chair, Hon. Robert Miguel, [email protected]
Ak-Chin Indian Community Him Dak Museum Director, Elaine Peters, [email protected]
Arizona Mining Reform Coalition Director, Roger Featherstone, [email protected]
Arizona State Historic Preservation Officer, Kathryn Leonard, [email protected]
Arizona State Lands Department Director, [email protected]
10
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•* 0)
White Mountctih Apache
❖ + ~-0]~+
Cultural Center
(520) 338-4625 • Fax (520) 338-1716 P .0. Box 507 • Fort Apache, AZ 85926
To the Arizona Tribal Leaders Affected by the Proposed Resolution Copper Mine:
I am responding due to a letter by Neil Bosworth, Forest Supervisor, Tonto National Forest (dated
August 28, 2020, File Code: 1560) to the White Mountain Apache Chairwoman, Gwendena Lee-
Gatewood regarding the Southeast Arizona Land Exchange with Oak Flat to Resolution Copper.
First, I represent myself here as an Apache elder. I am almost 80 years old and have spent most of my
life and career working to maintain, and pass down to our younger generations, our greatest birthright
--our Apache language and cultural knowledge. Second, I am a White Mountain Apache Tribal
official. I serve as the Tribe's Cultural Resource Director/NAGPRA Representative, Chair of the
Cultural Advisory Board, and on other local Boards.
I am opposed to the proposed Resolution Copper Mine. I think it is time for our Pima, Tohono
O' odham, Yavapai, and Apache Nations, our great leaders, and our esteemed cultural representatives to
suspend all involvement in making plans for the proposed Resolution Copper Mine that will result in
the destruction and desecration of Chich1il Bil Dagot'eel, our holy site.
I
We have had supposed "consultations" and submitted many statements describing the sacredness and
cultural areas and our opposition to the plans by the Resolution Copper Mine corporation. The majority
owner is Rio Tinto, the Australian company responsible, just four months ago, for obliterat,ing the
sacred Juukan Gorge rock shelters in Western Australia without properly notifying the Ab0riginal
traditional owners. Rio Tinto is working hard to do the same thing here. Their plan is to damage 35,000
acres (more than 50 square miles) of our beautiful ancestral lands and to make a toxic soup out of
billions of gallons of precious clean water. Our homelands will never be the same ....
These "consultations'' are wrongheaded. In the old days, if somebody killed one of our relatives, if
retaliation in-kind was not swift, then they did the next honorable thing: the relatives of the murderer
came to the victim's family to provide a just and fair compensation for the loss. They provided the
loved one's family with food, horses, and other goods. Amends were made and life went on.
Nobody would ever think about having a discussion with murderers before their foul and evil deed. But
I see in that August 28, 2020 letter that Resolution Copper wants to close the deal to get the Tribes to
'-
participate in receiving funds for "Tribal Monitors" and "Cultural Programs." This is Resolution
Copper's way to try to get tribes' help to legitimize and legalize killing our land and impeding our
religious and cultural beliefs and spiritual traditions. Why would we ever agree to this?
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I know we all ft:eed funding to support language and culture programs, of course, but let's not take this
blood money now. Let's stand together and fight these foreign corporate invaders! Let's support the San
Carlos Apache Tribe to stop the Resolution Copper Mine and protect our sacred ancestral land as our
ancestors did for centuries.
Tonto National Forest and Resolution Copper officials think they have the laws on their side, but those
laws all passed without knowledge, consultation, or support from Native People. AZ congressional
members underhandedly submitted the attachment to a bill without our knowledge years ago. The land
they want to destroy- the waters they want to poison and dry up, the plants and animals they want to
kill, the sacred and holy resting places they want to desecrate-are Indigenous land. It is up to Tribal
People to defend and protect it.
It is wrong for our People to be involved in planning to destroy sacred land that made us who we are. I
am asking for all Native People to stop working with, and helping Tonto National Forest and
Resolution Copper officials get approval for their mine.
Let's resist the divide-and-conquer strategy that made it even possible for this terrible idea for mining
one of our most sacred places to have made it this far. Please join me and just say NO to the proposed
Resolution Copper Mine.
Respectfully,
..,
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'i'*O)~+
Wbite Mountain Apache
•*o)l~+
Cultural Center
(928) 338-4625 Fax (520) 338-1716 P.O. Box 507 • Fort Apache, AZ 85926
November 9, 2020
Subject: Proposed Resolution Copper Mine and Land Exchange Impacts on First Amendment and
Human Rights to Religious Freedom, Exercise and Beliefs
I am an elder and culture bearer for the Apache people and it is my duty to tell the truth and defend our
Apache lands, culture, language, and lifeways. I have tried for the last two decades to explain to the
Federal Government, to various mining company officials, and to others of the clear duty to protect the
Chi'chil Bildagoteel (Oak Flat). Most have listened, but too few have heard my message and learned,
so I am writing it down.
I want to be clear that this is not an issue of "access" and that neither Chi'chil Bildagoteel, the powers
resident there, nor our religious activities that pray to and through these powers can be "relocated." It is
painful to experience the continued dismissal by Tonto Forest officials of our rights to exercise our
religion at a place uniquely endowed with holiness and medicine. The lands proposed for destruction
by the proposed mine cannot be replaced and prompt action is needed to protect Chi'chil Bildagoteel.
Chi'chil Bildagoteel, including all 4,309 aces of public lands managed by the Tonto National Forest as
the Chi'chil Bildagoteel National Register Historic District, requires protection for many reasons,
especially because it is a place:
• Respected and protected for many centuries for religious use, beliefs, and practice by the
ancestors of today's O'odham, Hopi, Zuni, Yavapai, and Apache Tribes, as well as by Spanish,
Mexican, and early Anglo residents. All who get to know the Chi'chil Bildagoteel come to
realize, honor, and celebrate its deep and universal sacredness.
• Recognized for the holy beings and powers as inscribed on cliffs and boulders.
• Visited for respectful and sustainable harvest of sacred medicine plants, animals, and minerals
essential to our Apache Holy Ground ceremonies and other religious and cultural ceremonies.
• Revered and used for the sacred spring waters that flows from the earth with healing powers not
present elsewhere. Chi'chil Bildagoteel is a place of perpetual prayer and the location for
eternal ceremonies that must take place there to benefit from and demonstrate religious
obligation, responsibility, and respect for the powers at and of Chi' chil Bildagoteel.
• Honored for the warriors who sacrificed their lives to protect their lands and families. Apaches
and other Native and non-Native peoples recognize battlefields and burial places, much like
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Arlington Cemetery, as sacred and protected lands. Why does the Federal Government deny
protection for the Apaches who died at and near Chi'chil Bildagoteel and the Apache Leap?
• Valued as one of the most important sources of our favorite and best acorns, a principal source
ofNdee (WestemApache) cultural identity, historical orientation, and good food. We Western
Apache are an Acom Nation. We rely on and nurture oak groves through our ceremonies,
prayers, and lifeways. These are our actual Trees of Life.
It is my understanding that the land exchanges authorized in Section 3003 of the FY 2015 National
Defense Authorization Act cannot proceed unless and until the Federal Government, the trustee for the
welfare of myself, my tribe (White Mountain Apache), the Ndee (Western Apache Nation), and all
other federally recognized tribes and their members and citizens does at least four things:
1. Complies with the legal requirements of the National Historic Preservation Act through the
execution of a programmatic agreement for the protection of historic properties, including our
places of religious and cultural importance, threatened with irreparable damage and destruction
by the proposed Resolution Copper Mine.
2. Certifies bona fide appraisals of the lands to be exchanged to enable the proposed Resolution
Copper Mine, including the heartless giveaway of the Chi'chil Bildagoteel, the multi-tribal holy
site, sacred place, ceremonial area, and U.S. National Register Historic District previously
protected by the Federal Government from mining.
3. Publishes the final environmental impact statement for the proposed Resolution Copper Mine.
The point here is that there is plenty of time for Federal Government officials and the cultural and
elected leaders of tribes across Arizona, New Mexico, and beyond, to awaken to moral and legal
mandates to protect Chi'chil Bildagoteel. Let's work together to save this natural and cultural
wonderland!
I urge careful attention to the religious and cultural significance of Chi'chil Bildagoteel in the National
Historic Preservation Act Section 106 compliance process underway on the part of the Tonto National
Forest. I am asking for our Federal Government Trustee to give focused attention to a key problem with
the Tonto Forest Land Exchange and proposed Resolution Copper Mine Project that has been either
neglected or deliberately disregarded by our Trustee and other responsible federal and state officials.
The Section 106 process and Programmatic Agreement has given lip service to minimizing and
mitigating the adverse effects of the propose mine and land exchange. The key problem is that both
Federal and Arizona State government representatives have avoided the mandatory and fundamental
step of identifying and evaluating the adverse effects that the proposed mine and land exchange will
have on Apache free exercise of our traditional religion and Apache religious beliefs. The Federal
Government is pretending to comply with NHPA while avoiding any identification and evaluation of
Apaches' deeply rooted First Amendment religious rights to and relationships with Chi'chil
Bildagoteel. This is made clear in the Forest Service's draft NHPA programmatic agreements, and
especially in lack of any attempt to avoid impacts to Chi'chil Bildagoteel and in the sudden appearance
of the Salt River Project as a signatory and regulatory beneficiary-much to our detriment.
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Tonto Forest representatives have yet to consider and properly document how to avoid, minimize and
mitigate the adverse effects on our religious rights of free exercise and beliefs in consultation with us,
and with our prior informed written consent. This is, of course, required by the United Nations
Declaration of the Rights of Indigenous Peoples and by the Golden Rule of doing to others only what
you would have them do to you.
Tonto National Forest and Resolution Copper officials think they have the laws on their side, but none
of those are greater than the universal laws of respect for land, life, and religious freedom. Please join
me in recognizing that religious and cultural freedom and perpetuation are far more important than
money and copper. Please do this, specifically and per my previous letter and request of September 11,
2020, by suspending all planning for mitigation efforts unless and until (1) the options for impact and
adverse effect avoidance and reduction have been exhausted and (2) the four Federal Government
actions listed above have been completed.
Respectfully,
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We, The International Council of Thirteen Indigenous Grandmothers, represent a global alliance
of prayer, education, and healing for our Mother Earth, all her inhabitants, and the next seven
generations to come. We are deeply concerned about the unprecedented destruction of our Mother
Earth and Indigenous ways of life.
All over the world there are human beings who have not separated themselves from the land and
from nature. Indigenous cultures have an unbroken chain that extends back to the time when our
ancestors first settled the continent. For thousands of years, we lived on this continent and it
remained much as it was in the beginning under our care. We have utilized the knowledge passed
down from our ancestors about how to live from time immemorial. The San Carlos Apache
Stronghold of Oak Flats are among these Indigenous Peoples. We offer this message in support of
our relatives who are bringing their concerns before this court.
The cultural survival of the San Carlos Apache is under grave threat from the proposed Resolution
Mine. We reaffirm our responsibility to speak for the protection and enhancement of the well-
being of Mother Earth, nature, future generations, and all humanity and life. We bring these matters
forward as our responsibility.
For the San Carlos Apache, health, law, and the environment are all interconnected. The Oak Flat
Stronghold is not just a place, but a home to spiritual powers. There, the sacred springs have
healing power, Apache warriors are buried, and the acorns grow from actual trees of life. For
centuries, Oak Flat has remained an active place where Indigenous people come to pray, harvest,
and gather where holy beings reside and holy springs flow. The San Carlos Apache cannot have
this spiritual connection with the land anywhere else on Earth.
Infrastructural incursions from surface and underground mines, dams, roads, ports, and large
industrial processing plants contaminate ground and drinking water and threaten the very essence
of life on Mother Earth. These actions also degrade an ancient way of thinking, permeating, and
influencing the traditional and cultural values, which preserves the wisdom of how to maintain
balance of the Mother Earth. If construction on the Resolution Mine were allowed to begin, the
San Carlos Apache’s sacred connection to the land would be severed and their identity as Apache
would be destroyed.
The health and wellbeing of the San Carlos Apache cannot be separated from this land.
Indigenous people are those who are the most far removed from the existing policies and
governmental decision-making in regard to access and rights yet are the most impacted.
Governments, corporations, and the dominant society do not consider the Indigenous teachings.
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We recognize the significance of this convening of a hearing and reaffirm the historic meeting
whereby, we issue this statement, in support of the Apache Stronghold Oak Flat’s rights regarding
the proposed Resolution Mine.
We recommend that there be a review of the existing Environmental Impact Statement and the
record of how the industry upholds their existing agreements with other land holders throughout
the world before entering into any agreements to their proposals. We feel it is imperative that
consideration be given to the points that have been raised regarding the protection, conservation,
safety, and access to clean water as a priority in any discussion of the proposal issues. The proposed
Resolution Mine poses a grave threat to the cultural survival of the San Carlos Apache and the
environment surrounding the mine, as far away as Phoenix. It is imperative that full and effective
measures are taken to ensure that these threats are fully and fairly considered when actions and
policies with respect to the area are made.
Serious consideration must be given to projects that will irreparably alienate the land and its waters
from the San Carlos Apache. The San Carlos Apache must be heard before they are permanently
separated from their homes, sacred sites, medicinal gathering areas, and clean water. They must
be heard before their way of life and spiritual identity is destroyed forever.
We emphatically ask the governmental institutions, corporations, and all organizations to embrace
this sense of commitment to act responsibly to ensure and guarantee generations of our children,
grandchildren, great-grandchildren a future landscape full of promise and peace. We are in concert
with the need to give voice to the San Carlos Apache perspective of guardianship of all the natural
resources including the precious water.
We, the International Council of Thirteen Indigenous Grandmothers believe that it is the obligation
of all concerned to ensure that the basic human rights of the San Carlos Apaches to practice their
religion are respected, upheld and recognized, now and for the future generations in any
determination regarding the Resolution Copper Mine. These words that we share are our strong
statement and we are glad to be heard.
Respectfully submitted: On February 10, 2021
Author:
Mona Polacca
PO Box 27933
Tucson, AZ 85726
Email:[email protected]
Phone: 602-810-5823
Mona Polacca is the President of the International Council of the Thirteen Indigenous Grandmothers, Co-Secretariat
of an Indigenous World Forum on Water and Peace. She served as the focal point for the Indigenous
Peoples program of the World Water Forum: Citizen’s Process 2018 . She works with Indigenous Peoples in
addressing access to clean safe drinking water and drafting Water Statements and Water Declarations.
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