A conflict is brewing in Arizona over the fate of a copper mine set to break ground on land that some Apache consider sacred, just as Congress is exploring deregulating Indian lands and allowing tribes to have more control of leases and land sales. 

On March 21, arguments will be heard at the United States Court of Appeals at Pasadena, California, over the future of Rio Tinto’s planned Oak Flat copper mine.

While some Apache tribes support the project, the San Carlos Apache have sued to block the transfer of land to Rio Tinto, which would level the federally owned land and open a two-mile-diameter, 1,000-foot-deep pit.

The hearing on March 21 will  be the second time the Ninth Circuit will hear Apache Stronghold v. United States, after a three-judge panel decided that the land deal did not violate the Apache’s free exercise of religion. Now, all 11 judges will hear the case.

“Oak Flat is like Mount Sinai to us — our most sacred site, where we connect with our Creator, our faith, our families, and our land,” the Apache Stronghold spokesman, Wendsler Noise, said. “It has been sacred to us since long before Europeans came to this continent.” 

Apache Stronghold, an organization opposing the mine, has also rallied support from other religious organizations like the Jewish Coalition for Religious Liberty, the Sikh Coalition, and the Mennonite Church.

Rio Tinto maintains that the legal precedent is on its side and expects the court to uphold the previous ruling in its favor.

“We respect the legal process and are closely following this case,” the Rio Tinto spokesman, Tyson Nansel, told the Sun. “At the same time, we believe that settled precedent supports the district court’s rejection of Apache Stronghold’s claims.”

Mr. Nansel told the Sun that the project would add up to $1 billion a year to Arizona’s economy and create thousands of jobs in the state.

The mine is part of a years-long effort by the federal government to onshore the mining of materials critical to modern economies and strategically significant industries. The mine could fill as much as a quarter of America’s need for copper, according to Rio Tinto, a critical component in the manufacture of batteries.

As the battle in Arizona heats up, Congress is beginning to explore the possibility of deregulating Indian lands with the intention of removing the federal government from the approval process for many leases.

Rio Tinto’s chief executive of copper, Bold Baatar, has said he intends to continue engaging with the San Carlos Apache until they support the project as well.

However, the San Carlos Apache have refused to negotiate with the company, saying that they instead prefer to negotiate directly with the federal government, which approved the sale.

Last week the House Committee on Natural Resources held the first hearing on potential federal deregulation of Indian lands, an issue that could have major implications on conflicts like the fight over Oak Flat and other large-scale mining and development projects in the western United States.

According to a committee aide, the committee is working on identifying ways Congress could empower tribes to have more control over their land. Currently, Indian lands are split into three categories — trust lands, fee lands, and restricted fee lands. Only fee lands do not require some sort of federal approval for use.

The chairman of the Confederated Tribes of Chehalis Reservation, Dustin Klatush, advocated for an overhaul on how leasing on Indian lands works during last week’s hearing. “We urge Congress to amend the long term leasing act to allow all federally recognized tribes the option to enter into leases with terms of up to 99 years,” Mr. Klatush said.

The chairman of the Prairie Band Potawatomi Nation, Joseph Rupnick, also called on Congress to reorganize trust lands to better recognize ownership by native nations.

According to Mr. Rupnick, his tribe is only in control of 5 percent of the land originally granted in the 19th century by the American government as compensation for the loss of its land to illegal settlements by European and American immigrants from the east.

Mr. Rupnick called on Congress to pass legislation that maintains protections for the external sale of land but empowers Indian nations and individuals to manage their land without federal approval.

Although the Apache have cited an 1852 treaty that they claim protects Oak Flat as part of the Apache homeland, the land is not controlled by the tribe but by the Forest Service. The modern border of the reservation lies about 18 miles east of the location.

The conflict over Oak Flat does, however, stand as an example of the sorts of conflicts that can arise from the federal involvement in the management of Indian lands.

In 2015, the land transfer at Oak Flat was approved by Congress after it was attached to the National Defense Authorization Act as a so-called midnight rider. 

President Trump’s administration then pushed through the environmental impact assessment as part of a string of actions approving mining and drilling on federal lands in 2021. President Biden put the land transfer on hold in January 2021, which allowed the Apache lawsuit to go forward. It may find its resolution at the March hearing.

Apache Stronghold did not immediately respond to a request for comment.