Imagine a scenario in which the users of a parcel of land have been there since long before recorded history and have long practiced religion on the site. Now imagine a mining conglomerate coming along and snatching up that piece of land, pushing the people off of it, and then blowing the thing up.

This simple scenario, I hope, would piss off the minimally sane and rational mind. A scenario playing out in Superior, Arizona right now, where Resolution Copper is taking ownership of an area sacred to the San Carlos Apache called Oak Flat, with the help of Sens. John McCain and Jeff Flake, for the tasty ores within.

The primary object of worship in those hills, despite all appearances, is definitely not copper. Sources quoted in a recent op-ed in the New York Times (“Selling off Apache Holy Land”) say that the San Carlos Apache have occupied Oak Flat since “before recorded history” and regard the site as their own “Mount Sinai.” Consider, for a minute, what it would mean to block cave and crater Mount Sinai. (Pause for consideration).

This land exchange came from a sneakfuck rider in the must-pass 2015 National Defense Authorization Act. The rider never survived as a standalone bill—in fact, according to Congress.gov, it was struck down every year as a standalone between 2005 and 2013, I hope because it violates elementary principles of right and wrong. But now that the land exchange is law, the San Carlos Apache may be unable to access their Mount Sinai in time due to the ravages of block caving and subsidence.

Surely, a civilized society cannot let such a pellucidly clear violation of religious exercise go unchecked. But the truth is that “religious freedom” laws do not go far enough, particularly for Native American religious adherents.

This contention might strike some as verging on scandalous. After all, Burwell v. Hobby Lobby extended federal Religious Freedom Restoration Act protections to corporations. State RFRAs have attempted to expand ad absurdum with Indiana’s abortive RFRA law and Arizona’s unsuccessful SB 1062, to name a couple. But the trend has been uniformly the same, whether expanding or trying to mint new religious freedom laws: “Religious freedom” has come to embody invidious sentiments toward minorities and the country’s deeply-entrenched power imbalances.

The federal RFRA itself incorporates a long and abusive First Amendment case law toward Native American religious claimants on sacred sites. Even so, it continues to revolutionize its protections for Judeo-Christians. This pattern holds true in the 9th Circuit Court of Appeals’ 2009 rejection of Navajo claims against the U.S. Forest Service related to the Arizona Snowbowl. A year later, the plaintiffs in Hobby Lobby filed and got unprecedented RFRA protections for a large corporation closely held by Christians.

The legal reasoning behind these disparate outcomes is too detailed to go into, but largely has to do with the standard of review for determining whether the government has “substantially burdened” a person’s religion. The federal courts, in short, make it really rough on RFRA challengers to prove a substantial burden in government land use cases. Given that many important aspects of Native American religions happen on government lands, Native Americans are often left in the lurch when the government comes in with bulldozers.

It would be wrong of me to talk about RFRA in the Oak Flat context, so the only point I want to make is that Oak Flat—where they will essentially blow up the Apaches’ Mount Sinai—instantly recalls the poverty and futility of religious freedom laws for people who really need them, even as they become a bludgeon for those who don’t need them. It has been, of late, “religious freedom for me, Judeo-Christian, but not for thee.” What’s needed are reforms that make all religious practitioners equal before the law.

As Arizonans, we should be ashamed of our complicity through our elected officials in the Oak Flat land grab. It is true that President Obama raised his voice against the rider after he signed it into law and pledged action. U.S. Rep. Raul Grijalva and other co-sponsors very recently introduced the “Save Oak Flat Act” to repeal the rider, a major move. But taking nothing for granted, we must continue to raise our voices in solidarity with our San Carlos Apache brothers and sisters. We must call for the continued preservation and reproduction of all Native American cultures by improving protections for sacred lands. There is still hope that commonsense principles of right and wrong will prevail.

Tim Workman studied indigenous peoples law and policy at the James E. Rogers College of Law, where he obtained a Master’s of Legal Studies in 2015.

This article appears in Jul 9-15, 2015.

18 replies on “Guest Opinion”

  2. Smeakfuck? Is that a technical or political term. All this article proves is how much trouble religion causes everyone.

  3. Totalitarianism is where this thinking is headed. Agree with me or be destroyed. What has caused this? Hate?

  4. As I am sure that you are aware there are always two sides to the issues. To learn more about Oak Flat visit the following links:

    Apaches Question Actions of their Leadership
    https://arizonadailyindependent.com/2015/07/08/apaches-question-actions-of-their-leadership/

    America Needs to Move Forward Instead of Dwelling on Our Past
    https://arizonadailyindependent.com/2015/07/05/america-needs-to-move-forward-instead-of-dwelling-on-our-past/

    Congressman Grijalva Attempts to Undermine Our Economy and National Security
    https://arizonadailyindependent.com/2015/06/22/congressman-grijalva-attempts-to-undermine-our-economy-and-national-security/

    Resolution Copper – Setting the Record Straight about Oak Flat
    https://arizonadailyindependent.com/2015/06/09/resolution-copper-setting-the-record-straight-about-oak-flat/

    David Briggs

  5. OK, I’ll bite. Thank you for the extra links, Mr. Briggs. Thank you also for reminding us that the mining company has an opinion on the Oak Flat acquisition.

    In reference to your article and curious non-argument “Dwelling on our past,” I only have to say that the repeal has nothing to do with “past injustices,” as you emphasize, and everything to do with present injustices. The past injustices (no mention of Apache wars) in the repeal appear to have legal consequences, and serve to draw out the fiduciary duty of the government mentioned in subsequent paragraphs.

    Thanks,

    TW

  6. Would you expect that they have no opinion? My thought was that are are very few in this fight that have any money invested. Unless I was unaware of others involvement in it.

    We have historically waded through claims of ancient holy lands to be given “casino appropriate status” for years. Odd that few fight casinos.

  8. Please define “dawn of time.” Weren’t the Navajo and Apaches the last Native Americans to arrive in the desert southwest only shortly before the Spaniards? Prospectors and miners are part and parcel of Arizona Territorial and state history, just as are the Native Americans of many different groups. I love how Mr. Workman thinks Apaches are some uniform entity. Wow! Patronizing.
    Miners, geologists, engineers, metallurgists, and environmental professionals (including Native American professionals) are working to secure our technology future in the least damaging methods possible here in the U.S. Want to push all that mineral development to some South American, Asian, or African country so you don’t have any impact of your lifestyle in your back yard? Who and what will be impacted by your actions?

  9. Mr. Tim Workman, with regard to your statement that the repeal has nothing to do with past injustices, have you actually read H.R. 2811?

    Here is quote from page 3 of H.R. 2811:

    “The Tonto National Forest in which Oak Flat is located was established in 1905 from the ancestral homelands of the Tonto Apache and other American Indians who were forcibly removed at gunpoint from the Oak Flat area and other areas of the Tonto National Forest by the United States Army in the 1880s and imprisoned in other areas, including what is now the San Carlos Apache Reservation, located approximately 15 miles from Oak Flat, where Apaches were held as prisoners of war until the early 1900s. “

    Here is another quote from page of 4 of H. R. 2811:

    American Indian tribes have ceded or have had taken from them millions of acres of land to help build the United States and have suffered under Federal assimilationist policies that sought to destroy tribal cultures. Despite these policies, American Indians continue to practice their religions as they have done for thousands of years. American Indian places of worship, or sacred areas, are often land based, including mountains, streams, and trees. As a result of previous Federal land policies that resulted in the significant loss of lands of American Indian tribes, many sacred areas of tribes are now located on Federal lands.

    I strong suggest you read H. R. 2811. Here is the link.

    Link
    https://www.congress.gov/114/bills/hr2811/BILLS-114hr2811ih.pdf

    David Briggs

  10. Mr. Workman, I would also like to remind you the articles that I have written in support of Resolution Copper reflect my opinion not theirs. Responsible development of our nation’s resources benefits all Americans., including those who oppose the project.

  11. You have not spoken to anybody that practiced religion before recorded time. So that may not be true.

    When the Confederate Flag was taken down today they gave it to the Confederate War Museum is it was representative of the Confederate Army.

    20 years from now children will be lied to. They will never know what it actually stood for.

    Does this fit the definition of ethnic cleansing?

  12. Let’s discuss the mountain high toxic tailings from the mine just outside Superior shall we?

  13. Ms. Judy – the mining law has been updated ~20+ times since its inception and has served the country well – providing incentive for private companies to explore the country, spend hundreds of billions of dollars to develop the nations mineral resources and in the process help the US become an industrial nation rather than an isolated agrarian country dependent on all those around us for the minerals we need. This one operation will provide 25% of the copper needed by Americans and bring in ~60 billion to the Arizona economy in a mining district that has been producing copper since before Arizona statehood. Mother nature blessed Arizona with copper – this is our contribution to the nation – not vast fields of soy and corn, organic yogurt empires, strawberry and tulip farms, or kaolin clay. None of those operations are possible without copper to run motors, pumping systems, lights, and timers. Why not be part of the solution to make the project the best project possible from an environmental and sustainable perspective. We need copper and other metals – make it happen in the least damaging method possible.

  14. Mr. Workman’s guest opinion concerning Oak Flat has identified several issues which I believe need to be debated. Mining Law has been modified, but it has not really addressed current problems. The concept of “Responsible Development of Natural Resources” is a nice phrase but with little consensus of what those words really mean. One point that really concerns me is the way the “land exchange” occurred. This action goes against the way government is supposed to function; those who manipulated the process are at fault, and they are losing the trust of those who are trying to believe in government (especially democratic government). Finally, respect of indigenous cultures had been absent throughout history and governments have used many suspect rationales and excuses for their actions. Let’s get into a real discussion of “what is right”, and let’s remember that Laws are meant to achieve Justice, but laws may not be just!

  15. Mr. Briggs, thank you for bringing to light the relevant portions of the text. The historical framework certainly has emotional appeal, because something native to our minds, morality, objects to the US’ bad faith dealings with Natives. But in more legal terms, I would guess history draws out some of the reasons for the federal trust relationship with Natives, speaks to why Oak Flat is in bad faith, and furthermore speaks to concrete injustices in the present extending out from the past. But even more, I believe, the repeal has to do with present and future considerations. This is part of what my article tries to communicate. Sacred lands form an integral part of Native cultures and their preservation and reproduction, and ultimately the right to self-determine. The right of self determination, religious conscience, culture seem far superior to economic gain or, in the case of the San Francisco Peaks, even, “multiple use doctrine” (for Crissake).

  16. Mr. Workman, I guess it boils down to what is considered to be scared ground. If you believe Mr. Wendsler Nosie Sr. or Mr Terry. Rambler, it could encompass virtually everything. Under that interpretation any activity conducted on public lands could be halted by anyone by just claiming the site is scared ground.

    Even the members of the San Carlos Apache tribe are sharply divided on this issue. Many members of the tribe have questioned their leadership’s actions and the manner in which these actions have been carried out.

    Link
    http://www.eacourier.com/opinion/letters_to_editor/letter-to-the-editor-return-the-holy-ground-crosses-from/article_db1423ea-1f7e-11e5-8e59-c354f02c70ca.html

    https://arizonadailyindependent.com/2015/07/08/apaches-question-actions-of-their-leadership/

  18. Senators McCain and Flake may have received political donations from Rio Tinto and their holding company Kennecut Copper but President Obama also did. Influence Explorer shows that Obama received a total of $8120; $6720 went to Obama in 2012. In 2007-2008, Obama received $1400. Other campaign sites showed that he received over $12, 000 from rio Tinto. Obama could have spoken out against the rider to the NDAA but he never did, and he did not speak out publicly for or against the Land Swap. Based upon his campaign contributions from Rio Tinto, I doubt he would sign the repeal HR 2811.

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