Legislative History
Oak Flat Legislative Timeline
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On September 27, president Dwight D. Eisenhower signed the Public Land Order 1229 declaring Oak Flat off limits for mining due to cultural and natural value. [Subcommittee on Public Lands and Forests]
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On September 25, the Department of the Interior, under President Richard M. Nixon, renewed the mining ban at Oak Flat but opened a loophole in the law: the land cannot be mined under federal ownership, but it can be traded to private holders who won’t be subject to land use restrictions. [Colorado Natural Resources, Energy & Environmental Law Review]
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Copper discovered at Oak Flat
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Resolution Copper begins lobbying the U.S Congress to give them Oak Flat in exchange for land that resolution owns elsewhere.
Oak Flat Land Transfer Deal | 13 failed bills introduced to Congress
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In Novemeber, Resolution Copper introduces the General Plan of Operations (GPO) for a proposed mine at Oak Flat. [Resolution Mine EIS]
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On December 19, Congress passes the National Defense Authorization Act — a military spending bill — that includes Section 3003, added by Arizona Senators John McCain and Jeff Flake. The “Midnight Rider,” introduced the night before a vote, states that Oak Flat would be swapped with private land owned by Rio Tinto and BHP Billiton Mining companies. Senator McCain received campaign contributions from Rio Tinto affiliates; Senator Flake was a lobbyist for Rio Tinto in Namibia. [NYT]
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On July 22, the stronghold participated in a caravan across the country to Washington, D.C with a gathering on the lawn of the Capitol Building. Naelyn Pike, a 16-year-old at the time tells the Huffington Post: “[The Resolution Copper Mining Proposal is] like taking away a church. But the thing about Oak Flat is it’s worse, because you can rebuild a church. Oak Flat will be completely destroyed and it could never come back.” [Huffington Post]
On November 5, senators Bernie Sanders (D-VT) and Tammy Baldwin (D-WI) introduce the first version of the Save Oak Flat Act, S. 2242 to repeal Senator McCain’s midnight rider in the National Defense Authorization Act:
“Section 3003 was strongly opposed by Indian tribes nationwide because it sets dangerous legislative precedent for the lack of protection of tribal sacred areas located on Federal lands by mandating the conveyance of Federal lands with significant religious, cultural, historic, and anthropological significance for Indian tribes to a private company that will destroy the land.”
The Save Oak Flat Act died in congress that year. [GovTrack]
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On March 18, The Environmental Impact Statement (EIS) for Resolution Copper begins. The Federal Register notes that, “The EIS will analyze the no action alternative, which would neither approve the proposed GPO [General Plan of Operations] nor complete the land exchange. However, the responsible official does not have discretion to select the no action alternative…” [The Federal Register] This means that the EIS alone, which will take four years and include hundreds of hours of public comment, cannot stop the Rio Tinto mine.
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On January 17, Senator Bernie Sanders introduces a third version of the Save Oak Flat Act.
On August 9, Tonto National Forest releases a 1,400-page Draft EIS kickstarting 90 days of public comment. Wendsler Nosie, Sr., offers testimony at a public hearing: “It’s like destroying Mount Sinai…How is that going to be replaced?” [Resolution Mine EIS – Public Meeting Transcript]
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March 13, 2020: Supporters of Oak Flat testify before a congressional subcommittee calling for a halt to the Resolution Copper project. Naelyn Pike, then 21 years old, asked: “How can we practice our ceremonies at Oak Flat when it is destroyed? How will the future Apache girls and boys know what it is to be Apache, to know our home when it is gone?” [AZ Central]
May 24, 2020: A Rio Tinto mine in Australia destroys an Aboriginal site with evidence of continued human inhabitance dating back 46,000 years. [The Guardian]
June 11, 2020: A Rio Tinto senior executive tells employees that the company’s public apologies about the Aboriginal site do not reflect any concession of wrongdoing. [The Guardian]
September 11, 2020: The Rio Tinto CEO and two top executives resign over controversies relating to the destruction of the Aboriginal site. [The Guardian]
December 1, 2020: The website for the US Department of Agriculture is updated with a new release date for the Resolution Copper Environmental Impact Timeline — January 2021. [ResolutionMine.US]
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Jan. 12, 2021: Apache Stronghold sues the federal government, saying the Forest Service cannot legally transfer the land to Rio Tinto for several parcels the company owns and maintains the land around Oak Flat was reserved for Western Apaches in an 1852 treaty with the U.S.
Feb. 12, 2021: A federal judge rejects the request to keep the Forest Service from transferring the land to Resolution Copper, saying that because Apache Stronghold is not a federally recognized tribe it lacks standing to argue the land belongs to Apaches.
March 1, 2021: The U.S. Department of Agriculture pulls back an environmental review that had cleared the way for the land swap, saying it needed more time to consult with Native American tribes and others
Oct. 21, 2021: Apache Stronghold asks a three member panel of the 9th U.S. Circuit Court of Appeals to keep Rio Tinto from getting the Oak Flat property. Months later, the panel issues a 2-1 decision that the federal government can give the Oak Flat land to Rio Tinto, but then agrees to let a larger appeals panel hear the case.
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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.
Source: Becket Law Firm
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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.
Apache Stronghold appealed the decision to the United States Supreme Court on September 11, 2024.
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In May 2025, the Supreme Court refused to take Apache Stronghold’s case, allowing the Ninth Circuit’s decision to stand. Justice Gorsuch, joined by Justice Thomas, dissented from the Court’s denial, writing that the Court’s “decision to shuffle this case off our docket without a full airing is a grievous mistake—one with consequences that threaten to reverberate for generations.”
May 9, 2025
Federal court halts destruction of Oak Flat Judge blocks feds’ rush to transfer Indigenous sacred site to foreign mining giant for destruction
On June 23, 2025, Apache Stronghold filed a motion for rehearing at the Supreme Court, asking the Justices to reconsider. In addition to Becket, Apache Stronghold is represented by Erin Murphy of Clement & Murphy PLLC, Professor Stephanie Barclay of Georgetown Law School, and attorneys Michael V. Nixon and Clifford Levenson.
August 21, 2025: A federals appeals court granted an emergency injunction, temporarily halting the government's planned transfer of Oak Flat to Resolution Copper.