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. Resolution Copper – a foreign mining corporation – is poised to acquire approximately 2,500 acres of land in this area. 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.
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. Publication was a threshold requirement for conveyance of the land. 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.” 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. The sacred land falls just outside of reservation boundaries, and it is therefore not legally recognized as tribal land.
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. 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. The tunneling and mining may also have a detrimental environmental impact as runoff contaminates downstream water sources.
The company’s motivation for purchasing Oak Flat is that beneath it lies one of the largest untapped copper deposits in the United States. 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. 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.
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. The bill proposing the land exchange was introduced a number of times since 2005, and until 2014, the bill always failed on its merits. 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. 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.
 Douglas Main, Sacred Native American Land to Be Traded to a Foreign Mining Giant, Nat’l Geographic (Jan. 15, 2021), https://www.nationalgeographic.com/environment/2021/01/oak-flat-exchange-arizona-sacred-site-mining-company/.
 Mot. TRO at 1, Apache Stronghold v. United States of America (D. Ariz. 2021) (No. 2:21 Civ. 00050), https://www.courthousenews.com/wp-content/uploads/2021/01/coppermine.pdf.
 Id. at 3.
 Id. at 4.
 Annette McGivney, Revealed: Trump Officials Rush to Mine Desert Haven Native Tribes Consider Holy, The Guardian (Nov. 24, 2020), https://www.theguardian.com/environment/2020/nov/24/trump-mining-arizona-holy-land-oak-flat-tribes.
 But see Complaint at 8, Apache Stronghold v. United States of America (D. Ariz. 2021) (No. 2:21 Civ. 00050-CDB), https://www.biologicaldiversity.org/campaigns/oak_flat/pdfs/Lawsuit-20210112-Apache-Stronghold-Complaint.pdf (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.”).
 Michelle Stanley & Kelly Gudgeon, Pilbara Mining Blast Confirmed to Have Destroyed 46,000yo Sites of ‘Staggering’ Significance, ABC News (May 26, 2020), https://www.abc.net.au/news/2020-05-26/rio-tinto-blast-destroys-area-with-ancient-aboriginal-heritage/12286652.
 Chris D’Angelo & Caitlin O’Hara, A Final Stand Seeks To Save Holy Apache Land In Arizona’s High Desert, Huffpost (Jan. 14, 2021), https://www.huffpost.com/entry/oak-flat-land-swap-apache-trump-administration_n_5fff7cd2c5b65671988b8d75.
 Main, supra note 1.
 Lily Meyer, ‘Oak Flat’ Tells The Story Of An Apache Tribe Fighting To Save Its Land From Mining, NPR (Nov. 20, 2020), https://www.npr.org/2020/11/20/936989723/oak-flat-tells-the-story-of-an-apache-tribe-fighting-to-save-their-land-from-min.
 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).
 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”).
 Id. at 366–68.
 Lydia Millet, Selling Off Apache Holy Land, N.Y. Times (May 29, 2015), https://www.nytimes.com/2015/05/29/opinion/selling-off-apache-holy-land.html (“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.”).