MAC: Mines and Communities

USA: Apache tribe's protest against Resolution mine reaches third week

Published by MAC on 2015-02-22
Source: Indian Country Today, Arizona Today (2015-02-22)

Previous article on MAC: USA: The Resolute Rambler takes on Rio Tinto

Tribe's protest of mine plan near Superior is in 3rd week

By Emily Bregel

Arizona Daily Star

20 February 2015

For more than two weeks, protesters have made camp at Oak Flat, the site of a planned copper mine that will result in a massive crater on the sacred site’s surface.

“We’re not moving,” said Wendsler Nosie, a former chairman of the San Carlos Apache Tribe and a vocal opponent of the mine. He is the organizer of the protest, which he describes as “Occupy Oak Flat.”

Nosie and other mine opponents want a repeal of the legislation that turned over 2,400 acres of Tonto National Forest to a mining giant, before conducting environmental studies and having formal consultations with concerned tribal governments.

“We can work with the United States to fix this,” he said in a phone interview. “If the United States fails and becomes defensive, then I have no control. There’s going to be a lot of tribes here coming from all over the country.”

Music, food and religious ceremonies have accompanied the encampment, where about a dozen die-hards are living full time. Hundreds of others have attended weekend events organized by the protesters, including non-tribal members from Tucson, Phoenix and the surrounding area, Nosie said.

Tucson resident Dwight Metzger recently founded a grass-roots group called “Tucson Supports Oak Flat” and has been organizing regular car pools to get dozens of Tucson residents up to Oak Flat, known as Chich’il Bildagoteel to the Apaches.

“We intend to support the camp as long as it’s there,” he said. “If it takes confrontation or more to stop the mining, we’ll be there right alongside them.”

Resolution Copper officials declined this week to discuss the protest, but they have said that tribal members are guaranteed access to Oak Flat until mining makes the site too dangerous. That will likely allow for another decade of access to the site.

Nosie and other tribal leaders met with Tonto National Forest supervisor Neil Bosworth recently at Oak Flat, and they say he was sympathetic to their concerns. Nosie said they got assurances they won’t be forced to leave — at least for a couple of weeks. Typical park rules limit camping to 14 days.

Bosworth wasn’t available to discuss the meeting, said Carrie Templin, spokeswoman for the Tonto National Forest. But she said the Forest Service — out of respect for the protesters’ religious rights — is seeking an exemption that would allow the camp to stay for a total of four weeks.

Bosworth is “very interested in continuing to talk to and work with the tribe and tribal members on their concerns,” she said.

But she doesn’t know if the Forest Service even has the ability to comply with the protesters’ demands that Oak Flat be protected in perpetuity.

“That (land-swap) law is law. We are required as employees of the federal government to implement laws as enacted by Congress,” she said. “We will do our best to see if there is any way something will evolve.”

Protesters say they are braced for things to turn ugly if Forest Service officials decide the campers must leave. Organizers say they will not do so and will reach out to allies in Tucson and Phoenix if they face removal. They say they are in touch with dozens of other tribes that are backing the protest effort.

Tribes including the Tohono O’odham Nation and the Pascua Yaqui Tribe, as well as the National Congress of American Indians and the Inter-Tribal Council of Arizona, have stated their opposition to the mine and the privatization of land considered sacred to the Apache and Yavapai tribes.

The Forest Service has received a mining plan from Resolution Copper Mining and will develop an environmental impact statement, which will allow the Forest Service to recommend mitigations and require specific environmental conditions be met before the mine opens, she said.

Under the land-swap legislation, the title to the 2,400-acre parcel will be transferred to Resolution Copper — a subsidiary of mining giants BHP Billiton Ltd., based in Australia, and Rio Tinto Group, based in the U.K. — 60 days after the environmental impact statement is published.

Resolution officials have said they want to work with the tribes to address their concerns, but the tribes say consultations after the land is already destined for privatization is meaningless.

Law's Passage

Resolution Copper Mining wants to build a massive copper mine on public land east of Superior, which is about 100 miles north of Tucson.

The exchange trades 5,300 acres of land owned by Resolution for 2,400 acres of copper-rich land in the Tonto National Forest. The copper mine is expected to be the largest in North America, generating $61 billion over its lifetime and 1,400 direct jobs. The mining company has promised to put as many of those jobs as possible in and near Superior.

But residents there are divided over whether the town will see enough financial benefit to justify the destruction of a popular recreation area and spiritually significant site to their east. Opponents say the mining company has offered few financial guarantees, and job projections have varied wildly over the past decade.

More than a dozen versions of the embattled land-swap bill failed to pass Congress since it was first introduced in 2005. But in December, legislators including Sen. John McCain, R-Ariz., and Sen. Jeff Flake, R-Ariz., attached the bill to the must-pass National Defense Authorization Act.

As part of the defense bill, the land swap passed Congress and was signed into law in mid-December, prompting Secretary of the Interior Sally Jewell to issue a statement decrying the lack of consultation with Native American tribes before trading their sacred land.

Mine opponents, who have protested outside McCain and Flake’s Arizona offices in recent weeks, sent a letter to Flake last week asking him to work with the Forest Service to protect Oak Flat.

A Flake spokesman said he was not available for comment. But Flake said in a prepared statement, “This bipartisan measure, which is now law, will enable responsible development and economic benefits, including provisions for tribal consultation, environmental reviews, and post-exchange access to Oak Flat Campground. I look forward to continuing to work with all stakeholders as the Forest Service implements the land exchange.”

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For details on the Occupy Oak Flat protest, visit apache-stronghold.com or call 928-475-2930.

Forest Service's concerns about the mine

The Forest Service has been sympathetic to the tribes' concerns. In 2009, Tom Vilsack, secretary of the U.S. Department of Agriculture, which includes the Forest Service, argued the land-swap should not occur until after environmental impact studies are completed, including consultation with tribes.

"Tribal governments have also raised important concerns that the bill is contrary to various policies and executive orders that require federal land managing agencies to protect and preserve sites that are sacred to Native Americans," he wrote in a letter to Sen. Ron Wyden, then-chairman of the Subcommittee on Public Lands and Forests.

"Because this specific site has been the focus of historic government protection it is important that this bill engage in the process of formal tribal consultation to ensure both tribal participation and the protection of this site."

The land traded to Resolution Copper includes the 760-acre Oak Flat Withdrawal Area, which was deemed off-limits to future mining by a 1955 land order signed by President Dwight Eisenhower. The land-swap legislation overturned that order.

Spiritual significance

The San Carlos Apache Tribe says its spiritual beings live within the Oak Flat, Gaan Canyon and Queen Creek area.

"Oak Flat is where the creator, God, touched the earth for us. These are our ancestral home places," said Wendsler Nosie, former chairman of the tribe. The Apache collect medicinal plants and acorns there, and conduct coming-of-age ceremonies, Nosie said.

The mining company has acknowledged that Oak Flat will be damaged by the mine. Resolution Copper estimates a two-mile wide, 1,000-foot deep crater will form at Oak Flat due to the mining.


San Carlos Apache Battle Against ‘Christian Discovery’

Peter d'Errico

Indian Country Today

20 February 2015

The San Carlos Apache battle cry, sounded by San Carlos Apache Chairman Terry Rambler to prevent the hostile takeover over of Apache lands by the United States and Rio Tinto mining corporation, goes to the core of U.S. neo-colonialism against Native nations.

The current attack on Apache lands arises from a law recently passed by the U.S. Congress, the "Southeast Arizona land exchange and conservation Act." The title of the act conceals its true purpose. The law has nothing to do with conservation. It enables the mining company to begin digging, with the environmental hazards and destruction that mining entails.

The title of the act also shows the anti-Indian root of the law: The lands in question do not belong to Arizona; they are Apache lands. Already, in the name of the law itself, we find levels of deception.

We are familiar with the common political practice of concealing the true purpose of a law behind wonderful-sounding phrases: "conservation" instead of "destruction." We should also be familiar with the fact that federal Indian law presents a pro-Indian mask in front of an anti-Indian face: "trust responsibility" instead of "federal domination."

The Rio Tinto law—let's call it by its real name—starts with the following presumptive statement: "The purpose of this section is to authorize, direct, facilitate, and expedite the exchange of land between Resolution Copper and the United States."

But how does the United States claim ownership of the land?

The United States claims ownership of Apache ancestral lands the same way it claims ownership of all Indian lands: through the doctrine of "Christian Discovery" set forth by the U.S. Supreme Court. "Christian Discovery" doctrine states that the United States holds title to all Indian lands. The doctrine further states that Indians are only "occupants" on their lands and that they do not hold their "occupancy" by right, but only by "the grace of the sovereign."

The Supreme Court based its "Christian Discovery" ruling on religious concepts dating from the time of Christendom. The court held that 15th century Papal Bulls authorizing Spanish and Portuguese colonial exploitation and domination of the "New World" also provided authority for English colonization. The court concluded that this religious authority to dominate and colonize "heathens and pagans" extended to the U.S. government after the American Revolution.

The Supreme Court has repeatedly reaffirmed the principle of "Christian Discovery." The court still cites the original 1823 case, Johnson v. McIntosh, as valid law. In fact, U.S. courts at all levels have cited the Johnson ruling more than 300 times since 1823, including at least four times in 2014.

In 1955, the U.S. argued explicitly in favor of "Christian Discovery" in the case of Tee-Hit-Ton v. U.S., resulting in a Supreme Court decision that the United States could take Indian property without compensation because Indians don't own their lands.

The San Carlos Apache are up against the federal Indian law framework that Johnson and Tee-Hit-Ton established: the principle of religious domination inherent in federal Indian law. The Rio Tinto act presumes that Apache lands are owned by the United States because that's what federal Indian law says!

The Rio Tinto act contains a subsection entitled "Consultation with Indian Tribes." It says, "The Secretary shall engage in government-to-government consultation with affected Indian tribes concerning issues of concern to the affected Indian tribes related to the land exchange." (The act defines "Secretary" as "the Secretary of Agriculture." We are expected to believe that the Rio Tinto project has something to do with food. Another deception.)

The "consultation" indicated in the act focuses after the fact of the exchange, not before. In contrast, the United Nations Declaration on the Rights of Indigenous Peoples specifically mandates "prior consent." Article 19 of the UN Declaration says: "States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them."

Article 32 of the UN Declaration reinforces the principle of "prior consent" with the following two further mandates: "1) Indigenous peoples have the right to determine and develop priorities and strategies for the development or use of their lands or territories and other resources, and 2) States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources."

The Rio Tinto act fails completely to meet or acknowledge the rights of the San Carlos Apache under the United Nations declaration. The fact that the act uses the phrase "government-to-government consultation" does not mean that the act actually recognizes and protects the indigenous government of the San Carlos Apache. That phrase is just another layer of deception, a mask and window dressing for a unilateral move by the United States.

To make matters worse, the act says that any responses to Indian "concerns" and any steps taken to "minimize the adverse effects" on them shall be "mutually acceptable" to Rio Tinto!

The fact is that the United States has refused to accede to the international legal norms announced in the United Nations declaration. Although President Obama reversed the original “no” vote by the United States when the United Nations adopted the declaration, he did so with a statement that "the Declaration’s concept of self-determination is consistent with the United States’ existing recognition of, and relationship with, federally recognized tribes."

In other words, the United States takes the position that federal Indian law already embodies the principles and mandates of the U.N. declaration. As we see in the Rio Tinto act, however, federal Indian law bears little resemblance to the norms of self-determination under international law. In short, the Obama statement, while attached to a yes vote, really amounts to a continuing no vote.

The bottom line here is that the San Carlos Apache do have a battle on their hands—a serious and profound battle against entrenched forces of colonial domination that have a 500-year head start. All Indian nations should take note of Chairman Rambler's challenge: "We must stand together and fight those…that seek to take our religious freedom, our most human right…."

Peter d’Errico graduated from Yale Law School in 1968. He was Staff attorney in Dinebeiina Nahiilna Be Agaditahe Navajo Legal Services, 1968-1970, in Shiprock. He taught Legal Studies at the University of Massachusetts, Amherst, 1970-2002. He is a consulting attorney on indigenous issues.

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