Apache Stronghold v. United States

Becket Role:
Case Start Date:
February 19, 2021
Deciding Court:
Ninth Circuit Court of Appeals
Original Court:
District Court for the District of Arizona
Practice Area(s):

Case Snapshot

Oak Flat (known in Apache as Chi'chil Bildagoteel) is a sacred site in Arizona’s vibrant Tonto National Forest where Native Americans have gone to worship, pray, and conduct religious ceremonies since time immemorial. Recognizing its responsibility to Native peoples, the federal government has protected the sacred site for more than six decades. But in 2014, a rider was attached to a must-pass defense bill directing the government to transfer the land to Resolution Copper, a foreign-owned mining company, which plans to construct a mine that will obliterate the sacred site in a nearly 2-mile-wide, 1,100-foot-deep crater. Now Becket is fighting to stop the destruction of the site, which would irreparably harm the religious expression and practices of the region’s first inhabitants.


The Ninth Circuit released a divided ruling (6-5) that refused to protect Oak Flat from destruction. On April 15, 2024, Apache Stronghold asked all 29 judges on the Ninth Circuit Court of Appeals to rehear the case.

Case Summary

Video: Apache sacred land threatened by mining in Arizona

A sacred site since time immemorial

Since before recorded history, Western Apaches have lived, worshipped on, and cared for Oak Flat and surrounding lands. Apaches believe that the Creator gives life to all things, including air, water, and the earth itself. Their religious and cultural identity is inextricably tied to the land, and Oak Flat has paramount significance for prayer and sacred ceremonies. Many of their most important religious practices must take place there, such as the coming-of-age Sunrise Ceremony for Apache women; sweat lodge ceremonies; gathering of sacred medicine plants, animals, and minerals; and the use of sacred waters. It is considered the direct corridor to Apache religion—recognized in the National Register of Historic Places and sometimes compared to Mount Sinai for Jews.

Broken promises

Unfortunately, the U.S. government has a sordid history of destroying Apaches’ lives and land for the sake of mining interests. In the 1870s, the federal government forced the Apache people onto the San Carlos Apache Indian Reservation and authorized miners to take Apache land. And although Oak Flat has been expressly protected from mining since the Eisenhower administration, mining companies still covet Oak Flat for a large copper deposit 7,000 feet below the surface.

Mining companies have long lobbied Congress to give them control of the land. One sponsor of a land-transfer bill was even convicted of soliciting a bribe from a mining company in exchange for his support. For many years, Congress refused, protecting the site from exploitation the same way it would preserve a historic, centuries-old church, mosque or synagogue. But in 2014, a last-minute rider was attached to a must-pass defense bill, ordering the land to be transferred to a foreign-owned mining company, Resolution Copper. The government admits the mine will destroy Oak Flat forever—obliterating the sacred ground in a nearly 2-mile-wide, 1,100-foot-deep crater, and making the Apaches’ religious practices impossible.

Seeking Justice

Apache Stronghold—a coalition of Apaches, other Native peoples, and non-Native allies dedicated to preserving Oak Flat—sued the government in federal court. They argued that the destruction of their sacred site 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. After the trial court declined to halt the land transfer, Becket filed an emergency appeal to the Ninth Circuit Court of Appeals. Just six hours before the government’s response was due, the government announced that it would withdraw the environmental impact statement that triggered the land transfer, delaying the transfer for several months. On June 24, 2022, the Ninth Circuit Court of Appeals refused to protect Oak Flat, saying that the land transfer to Resolution Copper did not substantially burden the Apaches’ religious exercise. In a dissenting opinion, Judge Marsha Berzon called the ruling “absurd,” “illogical,” “disingenuous,” and “incoheren[t].”  

In November 2022, the Ninth Circuit agreed to rehear the case “en banc”––meaning in front of a larger panel of eleven judges.  On March 1, 2024, the Ninth Circuit again refused to stop the federal government from transferring the sacred site to Resolution Copper. Five judges dissented from the ruling, writing that the majority “tragically err[ed]” in allowing the government to “obliterat[e] Oak Flat” and prevent the “Western Apaches from ever again” engaging in their religious exercise.  

This is not the end for Oak Flat. Apache Stronghold asked the Ninth Circuit to rehear the case, this time asking all 29 judges to protect their sacred site at Oak Flat. If the full court declines to reconsider the case, Apache Stronghold has vowed to appeal the decision to the Supreme Court. 

In addition to Becket, Apache Stronghold is represented by attorneys Michael Nixon and Clifford Levenson. 

Importance to Religious Liberty:

  • Individual Freedom: The government cannot take actions that prevent or burden the expression or pursuit of religious beliefs. Because each human has an individual right to follow the unique dictates of his conscience, religious freedom cannot be confined to the four walls of a church building. Individuals should be free to pursue their faith at all times without fear of government discrimination or penalty.
  • Religious liberty for Native Americans: Whether they are directly targeted or indirectly affected by government actions, minority religious groups are particularly vulnerable to government violations of their religious liberty. Actively defending religious liberty for Native Americans strengthens religious liberty for people of all faiths.
  • Religious Freedom Restoration Act: Passed by a bipartisan coalition in 1993, this legislation protects religious groups by requiring the government to show a compelling interest and use the least restrictive means possible when its actions would pose a substantial burden on religious exercise.
Photo © Robin Silver Photography