Federal Court to Rehear Apache Stronghold’s Case to Protect Sacred Site
 WASHINGTON —On Thursday, November 17, the U.S. 9th Circuit Court of Appeals decided it would rehear Apache Stronghold v. United States after ruling earlier this year that a private mine can proceed with operations while a lawsuit is pending.

The Apache Stronghold is arguing that efforts to develop an underground copper mine in the Tonto National Forest will destroy Oak Flat, a site considered to be sacred by the Apache and other tribes. 


“Apache have gathered at Oak Flat to connect with our Creator for millennia, and we want to continue this sacred tradition,” Dr. Wendsler Nosie, Sr. of Apache Stronghold, said in a statement. “The government protects historical churches and other important religious landmarks, and our site deserves no less protection. We are glad the Ninth Circuit is going to take a closer look at this decision, and we hope it will do the right thing and protect Oak Flat.” 

Oak Flat is recognized in the National Register of Historic Places, and its religious significance has been compared to that of Mount Sinai or St. Peter’s Basilica. 

The majority of the court’s 29 active judges have voted to rehear the case and will convene a special panel of eleven judges to decide whether the law allows the government to destroy sacred sites. In its announcement last Thursday, the court announced that it will rehear the case en banc, meaning in front of a full 11-judge court instead of a three-judge panel, which is what it did earlier this year in June. The court requested to rehear the case, which is extremely rare, according to Becket Law. A call to rehear a case happens in less than 0.5 percent of cases the court hears.

“Upon the vote of a majority of non-recused active judges, it is ordered that this case be reheard en banc pursuant to Federal Rule of Appellate Procedure 35(a) and Circuit Rule 35-3,” wrote Chief Circuit Judge Mary H. Murguia on November 17, 2022. “The three-judge panel opinion is vacated.”

In June, Native News Onlinereported that the court ruled 2-1 that Resolution Copper can proceed with operations while Apache Stronghold’s lawsuit is pending. The project is a joint venture between Rio Tinto and BHP, both mining companies from Australia, and will result in one of the largest undeveloped copper deposits in the world near Oak Flat.  

Never miss Indian Country’s biggest stories and breaking news. Sign up to get our reporting sent straight to your inbox every weekday morning. 


If the court determined it would not rehear the case, Apache Stronghold announced that it would appeal its case to the Supreme Court of the United States. The Apache Stronghold is represented by Becket Law, a non-profit public interest law firm based in Washington, D.C., and attorneys Michael V. Nixon and Clifford Levenson.   

“The court now has an opportunity to correct its earlier mistake and protect Apache religious exercise at Oak Flat,” Luke Goodrich, vice president and senior counsel at Becket Law, said in a statement. “A win for Apache Stronghold will be a win for people of all faiths.” 

Congress approved the transfer of the land to Resolution Copper in 2014 as part of the National Defense Authorization Act in exchange for 6,000 acres elsewhere. Resolution Copper plans to build a mine that is nearly 2 miles wide and almost 1,100 feet deep, which would contaminate the water and end Apache ceremonies at the site forever, say Apache Stronghold leaders. Congress has protected Oak Flat for more than six decades.

In its argument against the United States, Apache Stronghold argues that the transfer of land violates several laws and destroys their sacred site, which violates the Religious Freedom Restoration Act (RFRA) and an 1852 treaty promising that the United States would protect their land and “secure the permanent prosperity and happiness” of the Apaches.

 Oral argument for Apache Stronghold v. United States will take place the week of March 20, 2023.

More Stories Like This

Polluted Lands Persist on Leech Lake Indian Reservation
Rep. Peltola Calls for Federal Disaster Funding for Crab Fisheries
California Senators Introduce Legislation to Recognize Tule River Tribe’s Water Rights
New Mexico’s Heinrich, Leger Fernández Introduce Bicameral Bills To Approve Water Rights Settlements For 4 Pueblos

You’re reading the first draft of history. 

November is  Native American Heritage Month in the United States. We feel like every month — and every day — is a reason for celebrating Native Americans and our heritage. That’s what we try to do here at Native News Online, with stories each day that celebrate, inform and uplift American Indian and Alaska Native people. Over the past year or so, we have been especially busy with three important reporting projects that are having an impact across Indian Country:

  • Indian Boarding Schools. We’ve reported and published more than 150 stories and special live stream video events to help shine a light on the dark era of boarding schools — and help create momentum for change.

  • Native Health Desk. Launched in January, this reporting initiative was created to heighten awareness of Native American health inequities and spotlight pockets of progress in Indian Country. So far we’ve reported and published nearly 120 stories and launched a monthly health newsletter that reaches more than 23,000 readers.  

  • Native Bidaske. In March, we launched this live stream interview program to highlight the work of Native Americans who are making news and leading change in Indian Country.  We have hosted guests from the federal government and Native rights advocates as well as Indigenous actors, comedians, journalists and models.   

We hope you will join us in celebrating Native American heritage and history this November and invite you to consider the old adage that “Journalism is the first draft of history.” If you appreciate the voice Native News Online gives to Native American people, we hope you will support our work with a donation so we can build our newsroom and continue to amplify Native voices and Native perspectives.

Any contribution — big or small — helps us remain a force for change in Indian Country and continue telling the stories that are so often ignored, erased or overlooked.  Most often, our donors make a one-time gift of $20 or more, while many choose to make a recurring monthly donation of $5 or $10.  Whatever you can do, it helps fund our Indigenous-led newsroom and our ability to cover Native news. 

Donate to Native News Online today and support independent Indigenous journalism. Thank you. 

About The Author

Author: Darren ThompsonEmail: This email address is being protected from spambots. You need JavaScript enabled to view it.

Darren Thompson (Lac du Flambeau Ojibwe) is a staff reporter for Native News Online who is based in the Twin Cities of Minnesota. Thompson has reported on political unrest, tribal sovereignty, and Indigenous issues for the Aboriginal Peoples Television Network, Indian Country Today, Native News Online, Powwows.com and Unicorn Riot. He has contributed to the New York Times, the Washington Post, and Voice of America on various Indigenous issues in international conversation. He has a bachelor’s degree in Criminology & Law Studies from Marquette University in Milwaukee, Wisconsin.

Leave a Reply

Your email address will not be published. Required fields are marked *