Apaches Hope Supreme Court Will Protect Oak Flat From Copper Miners

I
am cruising across the San Carlos Apache Reservation with Wendsler Nosie Sr., an Apache man asking the Supreme Court to save his place of worship, known as Chi’chil Bildagoteel, or Oak Flat, from what may soon be the largest copper mine in North America. 

For Nosie and his allies, a nonprofit called Apache Stronghold, Oak Flat is irreplaceable — no different than Mt. Sinai. Named for its Emory Oak trees, some of them 1,000 years old and described in court documents by Ramon Riley, Director of the White Mountain Apache Tribe Cultural Center, as “our actual Trees of Life,” Oak Flat is “uniquely endowed with holiness and medicine.” Other Western Apache have testified that the high-desert oasis is a portal where they can communicate with their creator, Usen, via mountain spirits known as ga’an. The ga’an, sometimes translated as “angels,” are central to Apache cosmology, and live at Oak Flat, high above the yuga and saguaros of the Sonoran Desert below. 

For all of these reasons and more, the National Register of Historic Places recognizes Oak Flat, located inside the Tonto National Forest around 70 miles northeast of Phoenix, as a source of “supernatural power” to the Western Apache.

It is also a potential source of supernatural money.

According to the U.S. Forest Service, the ore beneath Oak Flat could yield 40 billion tons of copper, currently trading around $4 dollars a pound. Resolution Copper — the joint venture between foreign mining conglomerates Rio Tinto and BHP — says that this single mine could supply up to 25 percent of the United States’ copper needs, and could add $1 billion a year to the Arizona economy. It’s framed the project in patriotic and progressive terms, with a spokesperson stating that it is “vital to securing America’s energy future, infrastructure needs, and national defense,” although, as Rep. Raúl Grijalva (D-Ariz.) and others have raised, Resolution Copper is under no obligation to sell it to the U.S., and will sell it on the open market, likely to China. Rio Tinto’s largest shareholder is Aluminum Corporation of China, a state-owned holding company for the People’s Republic of China. 

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China accounts for 65 percent of all copper imports, but nearly everywhere in the world, demand for the highly ductile metal is on the rise. Due to its prominence in everything from solar panels to wind turbines, copper is emerging as the “linchpin” of the zero-carbon economy, making Apache Stronghold’s stand both about whether Native religion is equal in the eyes of the law, and the extent to which the “green” energy revolution — often portrayed as an unmitigated good — deserves a more nuanced read if it depends on indigenous sacrifice. 

On the first question, the Supreme Court is expected to signal its interest in the coming days. Justice Neil Gorsuch, a conservative on most issues, but long-time champion of Native rights, could end up being the deciding factor. Yet even if SCOTUS decides not to hear Apache Stronghold’s case, the questions about green energy’s shadow-side will reverberate far into the future. For now though, there is nothing to do but wait. And cruise. 

The sand beneath the tires of Nosie’s four wheeler is loose and glitters in the sun, studded with broken bottles. When the Apache were forced onto this patch of present-day Arizona in 1872 — many of them from enemy bands hailing from a wide geographic range — the U.S. Army called it “Hell’s 40 Acres” due to its searing temperatures and poor health conditions. Reduced in size six times by the U.S. government, often when minerals were discovered, the reservation borders never included Oak Flat. Nevertheless, newspaper articles from that era describe the Apache making harvesting trips to Oak Flat, risking punishment of death by leaving San Carlos. Today, the soldiers who once enforced the rule are gone, but the echoes of the past are shockingly alive.

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So, too, is Nosie. Rocking a black bandana like Geronimo and a pair of aviators, his very being seems to defy this environment. A former varsity athlete, and long distance runner in the tradition of his ancestors, famous for being able to run 80-100 miles a day, he still, at 65, runs four miles a day, sometimes with one of his many granddaughters. In other words, Nosie is healthy — physically, mentally, and spiritually — and for this, he is dangerous. Since coming out against Resolution Copper, he has been shot at, he says, four times, and now wears a bulletproof vest. 

“My life belongs to this, you know,” he tells me, referring to his battle for Oak Flat. “And so my family has taken up so many parts of the daily life of where I should be, but they see the quest that the Spirit has put me on.”

SINCE 2021, NOSIE HAS been suing the federal government for trading Oak Flat away. In a 2014 defense bill rider, Senator McCain achieved by cunning what Arizona legislators had failed to do in 13 previous bills: he signed Oak Flat, owned by the U.S. Forest Service, over to Rio Tinto. 

Should the Supreme Court decide to hear Nosie’s case, it will have to weigh it against a two-prong test. First, has the government substantially burdened his religion by conducting this land transfer? Second, if it has, does it have a compelling interest to do so anyway? 

So far, the courts have only made it as far as the first question, narrowly finding no substantial burden. It’s a conclusion Nosie’s legal team — a group of heavy hitters including Erin Murphy of Clement & Murphy, a firm with many SCOTUS wins, as well as the Becket Fund for Religious Liberty — says “defies logic” since Resolution Copper admits it must turn Oak Flat into a two-mile-wide crater, 1,000 feet deep. “It rips an unprincipled, atextual, and conspicuously Native-American-shaped hole in RFRA,” they continued in response to Ninth Circuit’s 6-5 decision, referencing the Religious Freedom Restoration Act. 

RFRA is a statute that Congress passed in 1993 with the intention of strengthening the First Amendment. Becket, which specializes in RFRA claims, is perhaps best known for winning the Hobby Lobby case, which found the contraception mandate in the Affordable Care Act violated the religious beliefs of the family-owned business. Becket is adamant: RFRA trumps all older case law. The Ninth Circuit erred, they claim, because the judges based their decision on Lyng v. Northwest Indian Cemetery Protective Association, a Supreme Court case from 1988. 

Lyng has long been a sore spot for Native rights advocates. It was brought by the Yoruk, Karuk, and Tolowa Indians of Northern California, who argued that a U.S. Forest Service logging road through the Six Rivers National Forest — land they revere as so powerful, only trained medicine people are allowed to enter — would impose a substantial burden on their religion. In ruling against them, the late Justice Sandra Day O’Connor wrote for the majority that while the road would “interfere significantly” with the plaintiffs’ ability to “pursue spiritual fulfillment,” it would not coerce them “into violating their religious beliefs,” nor would it “penalize religious activity by denying any person an equal share of the rights, benefits, and privileges enjoyed by other citizens.”

Nosies’ lawyers take issue with this definition of substantial burden established by Lyng and adopted, they allege, by the Ninth Circuit. Playing it out, they write: “For example, under the majority’s test, if the government posts ‘No Trespassing’ signs at Oak Flat and ‘penalizes’ visitors for trespassing, it imposes a substantial burden — even though Apaches can still risk penalties to worship there. But if the government blasts Oak Flat to oblivion, it imposes no substantial burden at all — even though Apaches can never worship there again.” 

Becket thinks the Supreme Court will be enticed to take up these RFRA questions related to its supremacy. Yet before it can be a test of RFRA, Apache Stronghold v. United States may end up being a test of the Supreme Court’s independence in the new Trump era. Already, Rio Tinto executive Bold Baatar has asked the incoming Administration to speed up the permitting process for Resolution Copper. It’s an issue the Trump team knows well; former Secretary of Commerce Wilbur Ross met with Rio Tinto executives at least three times in 2021, and made a visit to Oak Flat where he delivered a speech in favor of the mine. This time around, Trump has already promised to make America a self-reliant producer of minerals, while on Nov. 14, the House passed a bill adding copper to the critical minerals list and speeding up permitting for mines like Resolution Copper. 

Nosie, for his part, isn’t worried about the recent Republican sweep. “It’s just what we need,” he grins, revealing two rows of perfect white teeth and the beginning of a competitive streak. “I want to fight evil’s best — bring them.”

NOSIE’S SPIRITUAL QUEST BEGAN the way so many do — with a dream. He was in his 30s and had just finished overseeing his first daughter, Vanessa’s, Sunrise Ceremony. 

The Sunrise Ceremony is one of the most important ceremonies to the Apache. It takes place after a girl menstruates for the first time, and is a prayer for children, reenacting how the first girl on Earth, according to the Apache creation story, was impregnated by the sun. For four days, the girl and hundreds of relatives, guests, and professional supporters perform an elaborate series of dances designed to honor the miracle of life. She bakes a special bread for her godparents and the medicine man, carries the cane she will one day use in old age, and is covered in a special white clay that is later washed off in a nearby body of water. 

Nosie recalls that Vanessa’s Sunrise Ceremony had been difficult. He was anxious about the upcoming ceremony for his second daughter, Alicia. He began to dream about the ga’an, who  live and travel through the mountains. “That’s why Oak Flat is sacred to us,” Nosie explains. “It’s one of the corridors.”

He confided the dreams in his mother, who urged him to go to Mt. Graham, a different holy mountain. After driving his truck three-quarters up the 10,724 ft. peak, Nosie had just laid out the contents of his medicine bag and begun to pray when he heard a voice behind him saying, “Excuse me.” 

“I turn around and it’s a white lady,” Nosie recalls. “And she says ‘Uh, I don’t mean to ask, but are you Apache?’ Then I looked at her and said, ‘Yeah, Apache.’”

“And she goes, ‘Oh, wow. This is your sacred mountain. Wow, so you’re here to pray.’”

Eager to leave the interloper behind, Nosie packed up his things, and began to hike. But every time he stopped to look back, she was right on his heels, he recalls. 

He climbed higher and higher to the top, when a storm began to blow in. Oh, God, I’m not supposed to be up here, Nosie thought. Clouds on a summit, he explains, is a taboo time for Apache to be up high. 

Packing up his medicine bag and scrambling back down the mountain, he ran into two forest rangers. Unbeknownst to Nosie, he later claimed, he had been praying close to a field of telescopes belonging to the Vatican. The rangers called the University of Arizona police, who arrested him for trespassing, and gave him his court date. 

“Normally we would take you in, but since you’re a good Indian, we’ll let you go,” Nosie remembers one officer told him. 

“By the way,” another officer added, according to Nosie, “don’t ever come back. You’re supposed to stay in that place.”

“I’ll be back,” Nosie retorted. 

“Well, you know what’s going to happen if you come back,” the officer allegedly countered.

“I’ll be back,” Nosie replied. 

THE TRESPASSING CHARGES did not stick; the praying Indian walked free. A seed began to sprout in Nosie’s mind: If the white man wouldn’t respect nature, maybe he would respect God. Nevermind that in both Apache and Christian cosmology, one created the other. 

Nosie kept praying. He started speaking out against the mine. He pressed his people: “Who are we? What do we want? Who are we now?” The questions made some of the people uneasy. Better to not cause trouble was the attitude of some. They had jobs in the nearby towns of Superior and Globe. They knew that their reservation belonged to the U.S. government, and could therefore be taken away. 

Gradually, Nosie says, some of the medicine men in the tribe came around. “Let’s fight for what God gave us,” they told him. “It’s going to be a struggle because some of the people don’t know who they are anymore, because of what the United States did to us. But it’s in us.” 

Not everyone agreed. “This is the guy who wants to take all your jobs!” Nosie’s granddaughter, Nizhoni Pike, recalls a man once shouting in a restaurant, pointing at her grandfather and referring to the 1,500 jobs Resolution Copper says it will create — no triviality when unemployment on San Carlos hovers around 65 percent. According to Pike, her grandfather stood up and made an equally impassioned speech. The restaurant was silent, she recalls, but when they went to pay, someone had taken care of their bill. 

Sometimes, the stiffest opposition came from within the reservation. “Oak Flat is a sacred site?” reads the title of a 2015 op-ed written by former San Carlos tribal historian Dale Miles. “It never was before.” 

“It wasn’t until recent years that the site of Oak Flat was called sacred in any kind of way,” Miles continued. “All one has to do is examine the records to see if the word sacred was ever used for the site.” 

From Apache Stronghold’s perspective, this kind of unanimity is impossible, and speaks to the depth of their colonization. 

For starters, Apache culture is an oral culture, and the U.S. government made a systematic effort to eradicate it, sending generations of indigenous children to boarding schools where they were forced to adopt Christianity and often beaten for speaking their own tongue. It was only this year, late in the 2024 campaign, that President Joe Biden apologized for this policy on behalf of the United States. 

In addition, it’s unsurprising that some San Carlos Apache have no relationship with Oak Flat, Pike explains. Even the name Apache is ahistorical, and may derive from the Zuni word “apachu,” meaning enemy. Then, there are multiple bands under the Apache umbrella, hailing from present day Texas, New Mexico, Colorado, and Arizona. “We’re not just one band of Apache, we’re a bunch of different tribes, a bunch of different bands that just got stamped with the San Carlos Apache. Some of us are not even Apache,” she says. 

Nevertheless, Nosie believes further documentation about the sacredness of Oak Flat does exist — and the government is hiding it. “The irritating part for me,” he says, “is that before San Carlos became a reservation, there was a military presence here. So the military has a lot of recorded documents on us Apaches.” 

But Nosie can’t access it. “What makes me mad in today’s court, they say, ‘Why didn’t you people ever say anything?’ And I’m like, the hell?” he says. “You put us in prisons of war. You changed it to a concentration camp. And then you made reservations and we were mandated to be under the government.” 

Then, says Nosie, the first Trump Administration waived all cultural and environmental exemptions related to Oak Flat when it weakened the National Environmental Policy Act in 2020, and rushed a final environmental assessment in its outgoing weeks. “So that means that all this stuff that are archives of the universities, we can’t use it. You can’t submit it in court. They shut the door. They locked it.” 

In this sense, the lack of consensus on Oak Flat’s sacredness may prove religious persecution, rather than its absence. 

SHOULD APACHE STRONGHOLD somehow advance past the question of substantial burden, it will face the even more challenging matter of compelling reason. Even just a few years ago, the government would have been hard-pressed to make the case that it is in dire need of copper; for decades, it was considered an abundant material. Now, largely due to its use in the energy transition, that’s starting to change. 

“Copper is the new gold,” says Simon Michaux, a professor of geometallurgy at the Geological Survey of Finland. Nevertheless, he thinks the U.S. may have far more compelling reason to leave Oak Flat alone. “Their philosophy might be more valuable still,” he says referring to Apache Stronghold and indigenous wisdom at large, “because the society going forward has to do what they already know, and we don’t.” 

Michaux is not speaking in an ideological sense; he is a veteran of the Australian mining industry, and sees extraction as a fact of life. In fact, he says, ideology is the problem. Ever since going off the gold standard in 1971, he explains, we have printed more money and piled on debt, leading to a society that believes in ideas, rather than material reality. 

This kind of magical thinking is also governing the energy transition. According to Michaux’s math, the planet only has enough copper reserves to satisfy about 15 percent of our 2018 energy needs. Lithium reserves are even smaller. In other words, the rhetorical goal of “net zero” is just that — rhetorical. There simply aren’t enough minerals to even come close to replacing fossil fuels, he believes. 

When he presents his work around the European Union, politicians look at him “like they’re helpless, like a turtle that’s been turned on its back,” Michaux says. The bad news, he says, is that we must change the way we value the earth, and learn to live within our material restraints. The good news is there are still people who remember how.

“The very people you’re talking about, who believe this is a sacred site,” he says, referring to Apache Stronghold, “their philosophy happens to be the guiding goalposts that we’ve got to move towards.” 

ON MY LAST MORNING with the Nosies, we leave their sprawling family compound, still covered in an astonishing array of now-drooping Halloween decorations, and drive 40 minutes to Oak Flat. 

“There are male places and there are female places,” Nosie is telling me. Oak Flat, known for its natural springs, abundant medicines, and acorns, is female. 

“So the old people are like, ‘Why are these white people destroying these places? When you destroy them, they’re nowhere else to be found.’ In other words, what they’re saying is that they’re making Mother Earth into a man. Because the man can’t produce.”

The acorns are everywhere and stupidly delicious — like an umami cashew. Earlier, Nosie’s wife, Teresa, held up a ziplock bag full of meal, used for thickening soups. “This can feed 800 people,” she told me. 

Pike, Nosie’s granddaughter, had her Sunrise Ceremony at Oak Flat in 2014, dancing for four days surrounded by relatives, and synching her cycle to the great cycle of life. “They say wherever you have your dance, that’s where your spirit’s connected to the earth,” she explained earlier at a skateboarding competition on San Carlos. 

Now, she is wearing a long floral dress and her grandmother’s moccasins, just as she did for her ceremony a decade ago. As we walk across the land, her eyes fill with tears. She is anxious because the earth is anxious, she tells me. Neither knows what is about to happen. Her elders have told her that if Oak Flat is dug up, her lifelines — meaning all the women who held their Sunrise Ceremonies there — could be harmed. 

Just as you’d visit a sick relative, Pike says, she comes here to pray as often as she can, taking off her shoes and grounding into the earth. It’s a privilege, and a right, that her great-grandmother — Nosie’s mother — never got to have. 

Back when Nosie was coming here as a child, he tells me, his mother would stop the car and they would run, harvesting acorns and praying as fast as they could. “The mentality was, if we get seen, we’re going to get caught. We can get thrown in jail.” 

Today, we linger in the shade. Nosie prays to the East and West in fluent Apache and reaches into his medicine pouch, blessing us with yellow cattail pollen on our heads. 

Win or lose, he says, “the real issue here is the Earth. We’re killing it, and we’re going to kill us, and we’re going to kill everything on it. And that’s not what God intended it to be.”