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Apaches’ fight over Arizona copper mine goes before US court

The group is seeking an injunction until a judge ultimately can determine who has rights to that land and whether mining would infringe on Apaches’ religious practices.

The Forest Service says it’s doing what Congress mandated.

Here is an overview of the case:

Stand-alone legislation in Congress for the land exchange failed for several years. In December 2014, the late U.S. Sen. John McCain and former U.S. Sen. Jeff Flake of Arizona slipped the exchange into a must-pass defense bill.

The provision required an environmental impact statement before Resolution Copper would exchange eight parcels it owns in Arizona for 3.75 square miles (9.71 square kilometers) of land in the Tonto National Forest. The clock is ticking for the land exchange.

The provision caught environmentalists and tribes off guard. The area known as Oak Flat had been federally protected from mining because of its cultural and natural value for decades.

Since then, they’ve supported legislation to reverse the land exchange. Democratic U.S. Rep. Raul Grijalva of Arizona has been a major supporter.

The Apache Stronghold lawsuit is one of three filed over the copper mine, some of which have overlapping arguments.

The San Carlos Apache Tribe, and a coalition of environmentalists, tribes and the Arizona Mining Reform Coalition also sued the U.S. Forest Service.

The lawsuits raise concerns over federal laws regarding historic preservation, the environment, religious freedom, constitutional rights and a decades-old agreement between Apaches and the United States.

The U.S. Forest Service has declined to comment on the lawsuits. In court documents, the agency said it doesn’t question the sincerity of the religious and historical connection that Apaches have to the land known as Oak Flat.

“Congress has decided this land exchange should go forward, and any construction, mining or ground disturbance at the site is not imminent,” attorneys for the agency wrote.

Apaches call the mountainous area Chi’chil Bildagoteel. It has ancient oak groves, traditional plants and living beings that tribal members say are essential to their religion and culture. Those things exist in other places, but Apache Stronghold says they have unique power within Oak Flat.

The site is also popular for camping, hiking and rock climbing. Resolution Copper says it will keep the campground open to the public as long as it’s safe but eventually the area would be swallowed by the mine.

Apaches have camped out there in protest. Former San Carlos Apache Chairman Wendsler Nosie Sr., who leads Apache Stronghold, also moved to the site.

The Society for American Archaeology has said the area is of great significance archaeologically within the U.S. Southwest.

Apache Stronghold contends the land belongs to Western Apaches under an 1852 treaty with the United States. John Welch, a professor and anthropologist who has worked extensively with Apache tribes, says he hasn’t found any evidence that would suggest otherwise.

The so-called Treaty of Santa Fe was one of a handful of treaties negotiated with a broad group of Apaches, and the only one ratified by the U.S. Senate, said Karl Jacoby, a Columbia University history professor who has written about the treaty and isn’t connected to the lawsuit.

The treaty was meant as a peace accord at a time the U.S. was acquiring territory from Mexico. It suggests that Apaches have a right to their territory but it doesn’t spell out that territory, Jacoby said.

“What’s been happening recently is Native people have been dusting off these treaties, and saying, ‘Look, you made this treaty, you can’t just walk away from it. You have to honor it, it’s in your constitution,’ which is the supreme law of the land,” he said.

Attorneys for the Forest Service said Apache Stronghold can’t assert ownership rights because it’s not a federally recognized tribe. Even then, the land isn’t held in trust for any Apache tribe.

Land that includes Oak Flat became part of the United States through the Treaty of Guadalupe Hidalgo in 1848.

“The United States has never alienated title to the lands at issue in this suit,” attorneys for the Forest Service said.

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