By: Janice Lopez

To the northeast of Phoenix, Arizona, in the Tonto National Forest, lies Oak Flat – sacred ground to the San Carlos Apache Tribe since “time immemorial,” and the site of a planned copper mine.[1] Resolution Copper – a foreign mining corporation – is poised to acquire approximately 2,500 acres of land in this area.[2] The Obama administration agreed to this land exchange, and in return, the United States would receive 5,000 acres of land currently owned by the company throughout Arizona.[3]

On January 14, 2021, a federal court in Arizona denied the Apache Stronghold’s motion for a Temporary Restraining Order to prevent the government from publishing a Final Environmental Impact Statement.[4] Publication was a threshold requirement for conveyance of the land.[5] The court found that, though it recognized the anxiety of “having one’s sacred land taken from them,” the plaintiffs could not show “immediate and irreparable injury.”[6] The publication of the statement, the completion date of which was sped up one year by the Trump administration, triggered a 60-day time period for the government to complete the exchange.[7] The sacred land falls just outside of reservation boundaries, and it is therefore not legally recognized as tribal land.[8]

Globally, Resolution Copper has a strained history with indigenous peoples: in Australia, it similarly purchased aboriginal land with permission from the Australian government and recently destroyed a 46,000-year-old cultural site.[9]  The planned tunneling for accessing the copper deposit under Oak Flat threatens to damage petroglyphs, burial sites, and other sites of archeological and cultural significance.[10] The tunneling and mining may also have a detrimental environmental impact as runoff contaminates downstream water sources.[11]

The company’s motivation for purchasing Oak Flat is that beneath it lies one of the largest untapped copper deposits in the United States.[12] That said, there is no guarantee the copper, once mined, will remain in the United States, despite arguments by proponents of the land exchange that it will be a profitable venture.[13] In fact, no royalties will be due to the United States for the copper excavated, and the copper will mostly be smelted outside of the country, creating fewer domestic jobs than expected.[14]

Ultimately, Congress sold sacred Native American land, largely avoiding public scrutiny, because the legislative process, and to an extent, the will of Congress, was denigrated.[15] The bill proposing the land exchange was introduced a number of times since 2005, and until 2014, the bill always failed on its merits.[16] In 2014, Republican Senators from Arizona included a fine-print last-minute rider, or unrelated provision, to the National Defense Authorization Act for Fiscal Year 2015, which was considered a must-pass bill.[17] The rider approved the land exchange. Almost unnoticed, Congress gave away sacred Native American land to a foreign corporation. There was no heed to the public interest in mineral rights, environmental protection, or cultural values; there were no strict procedures governing the sale; and there was no government-to-government collaboration between the San Carlos Apache Tribe and the United States, creating a precedent that undermines the legislative process and further strains relations with Native American tribes. 

[1] Douglas Main, Sacred Native American Land to Be Traded to a Foreign Mining Giant, Nat’l Geographic (Jan. 15, 2021),

[2] Id.

[3] Id.

[4] Mot. TRO at 1, Apache Stronghold v. United States of America (D. Ariz. 2021) (No. 2:21 Civ. 00050),

[5] Id. at 3.

[6] Id. at 4.

[7] Annette McGivney, Revealed: Trump Officials Rush to Mine Desert Haven Native Tribes Consider Holy, The Guardian (Nov. 24, 2020),

[8] But see Complaint at 8, Apache Stronghold v. United States of America (D. Ariz. 2021) (No. 2:21 Civ. 00050-CDB), (arguing that Oak Flat is part of the land that Apache Nations reserved in the 1852 Treaty of Santa Fe, which was “never amended, rescinded, nor terminated.”).

[9] Michelle Stanley & Kelly Gudgeon, Pilbara Mining Blast Confirmed to Have Destroyed 46,000yo Sites of ‘Staggering’ Significance, ABC News (May 26, 2020),

[10] Chris D’Angelo & Caitlin O’Hara, A Final Stand Seeks To Save Holy Apache Land In Arizona’s High Desert, Huffpost (Jan. 14, 2021),

[11] Main, supra note 1.

[12] Lily Meyer, ‘Oak Flat’ Tells The Story Of An Apache Tribe Fighting To Save Its Land From Mining, NPR (Nov. 20, 2020),

[13] Katharine E. Lovett, Not All Land Exchanges Are Created Equal: A Case Study of the Oak Flat Land Exchange, 28 Colo. Nat. Resources, Energy & Envtl L. Rev. 353, 380 (2017).

[14] Id

[15] Id. at 378 (arguing that the inclusion of the land exchange in a national security bill was “a sneaky way around the traditional legislative process”).  

[16] Id. at 366–68.

[17] Lydia Millet, Selling Off Apache Holy Land, N.Y. Times (May 29, 2015), (“A fine-print rider trading away the Indian holy land was added at the last minute to the must-pass military spending bill, the National Defense Authorization Act.”). 

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