The Fight for Oak Flat: Where Law, Religion, and Art Collide

Arizona Highways Magazine

INTRODUCTION 

On October 6, 2025, the Supreme Court denied a rehearing in Apache Stronghold v. United States. This left in place the Ninth Circuit Court’s decision that allows the federal government to transfer Chi' chil Bildagoteel, also known as Oak Flat, to a foreign mining company. Oak Flat is a 2,422 acre sacred site in the Tonto National Forest, about an hour east of Phoenix, Arizona. Oak Flat was recognized as a traditional cultural property on the National Register of Historic Places in 2016. Oak Flat is a spiritual center for the Western Apache and other Native nations, including the San Carlos Apache. The site contains ancient rock carvings and hosts the Sunrise Dance, a ceremony representing Apache girls’ transition into womanhood. The ceremony represents generations of cultural and artistic expression. Oak Flat is both the spiritual and artistic home of the Apache, and the site of the world’s third-largest underground copper deposit. This sacred landscape now faces complete destruction from the mining plan proposed by Resolution Copper Mining, LLC (“Resolution Copper”) to uncover this deposit, a plan which would result in Oak Flat becoming a crater large enough to fit the Eiffel Tower. This conflict raises questions about protection of indigenous art and heritage versus looming industrial expansion.

KEY LEGAL CONCEPTS/ CASE LAW

Resolution Copper first proposed the mining of Oak Flat in 2013. Their mining plan includes a system of block caving, where tunnels would be mined underground, likely causing subsidence, which would leave a two-mile-wide, 1,100-foot-deep crater.  In 2014, a provision for the sale of Oak Flat was added at the last minute into a national defense bill, NDAA 2015 Section 3003. Debates over ownership of this land have persisted ever since, but the current legal battle began in January 2021, when Apache Stronghold, a nonprofit representing the interests of some members of the San Carlos Apache tribe and other Native nations, sued the federal government, seeking an injunction to block the land transfer. 

In early 2021, the district court denied Apache Stronghold’s motions for a temporary restraining order and a preliminary injunction. In June 2022, the Ninth Circuit Court of Appeals affirmed the district court’s denial of the preliminary injunction. In November 2022, the court sua sponte ordered an en banc rehearing, and in March 2024, it again affirmed the denial. The case was subsequently appealed to the Supreme Court twice, but both petitions for rehearing were denied.The ultimate issues addressed by the Ninth Circuit were whether destroying a sacred site and ending the ceremonies held there constituted a substantial burden on religious exercise under the Religious Freedom Restoration Act (RFRA) or whether it triggers strict scrutiny under the Free Exercise Clause of the First Amendment.

To analyze this, the central question in this case was whether the Supreme Court’s definition of “substantial burden” on religious exercise under the RFRA from Lyng v. Northwest Indian Cemetery Protective Association should still apply or whether this definition should be broadened. The defendants’ (the U.S. government and intervenor Resolution Copper) were successful in arguing that under Lyng, a religion is substantially burdened only when its practices are nearly prohibited. Under Lyng, the incidental effects of government programs may make certain religious practices more difficult, as long as individuals are not coerced to act contrary to their religious beliefs and the effects do not discriminate against religious adherents. The defendants also relied on Lyng to assert that the Free Exercise Clause can not be taken so far as to allow individuals to dictate the conduct of the government’s internal procedures, including how to manage its land. This, they argued, would allow a “religious servitude” where the government’s procedures would have to depend on the tribal members’ points of view.

Plaintiff-Appellant Apache Stronghold argued that transferring Oak Flat would substantially burden their religious exercise under the RFRA. At trial, Western Apache tribal members testified that they could not have this spiritual connection with the land anywhere else on Earth. The ceremony and art present at Oak Flat are irreplaceable. Apache Stronghold sought a redefinition of “substantial burdens” to align with its plain meaning at the time the RFRA was passed. At the time of the RFRA’s passage, a “burden” was defined as “[s]omething oppressive” or “anything that imposes either a restrictive or onerous load” on an activity. Under this definition, preventing tribal members from being able to access their religious exercise ever again is a substantial burden. A majority of the en banc court agreed, concluding that the narrow definition of “substantial burden” that the district court used from Navajo Nation v. U.S. Forest Service should be overruled. 

However, the prevailing majority still denied Apache Stronghold relief, holding that under Lyng's controlling precedent, the RFRA does not allow individuals to dictate the government's management of its own land, and a substantial burden exists only when government action is coercive or discriminatory. Thus while one majority of the en banc court broadened the legal standard, the prevailing majority concluded that when applied to the Oak Flat land, the substantial burden test was not met and therefore the resolution must follow Lyng.

The Lyng boundary drastically limits cultural claims to halt industry. However, there is good news. A majority of the Ninth Circuit did agree to broaden the definition of “substantial burden” to include preventing access to religious exercise. What the courts do next will determine whether our country allows congressional industrial projects to continue when complete destruction of irreplaceable cultural, artistic, and religious assets hangs in the balance. While the Ninth Circuit’s decision here is final, litigation for Oak Flat is still ongoing. Apache Stronghold is continuing three other cases seeking to protect Oak Flat, which will be heard for oral argument in the Ninth Circuit on January 7, 2026. 

POTENTIAL BUSINESS IMPACT

While the Ninth Circuit’s ruling carries profound implications for religious and cultural protections, it also intersects with powerful economic consideration. The ongoing legal battle over access to Oak Flat’s copper-rich land has the potential to greatly impact both the local and global economy. In the United States alone, copper is a $10 billion per year industry, with Arizona specifically producing 70% of the domestic output. In recent years, the demand for copper globally has increased significantly due to advances in technology necessitating the mineral. Due to copper’s excellence in conducting electricity and heat, it is an essential mineral to run everything from electric cars to kitchen sinks. As the demand for copper has grown, the availability of new stores of this metal has failed to keep pace. Experts are predicting that the supply of copper will fall 30% short of demand by 2035. A copper shortage could occur in the future if more stores are not discovered. Access to Oak Flat’s copper stores would greatly help to alleviate this future disparity. Resolution Copper also predicts that if access to the mind is granted, over 3,700 jobs would be created for the local economy. In addition, local and state sales tax revenues would increase to between $88 to $113 million. Resolution Copper Mining hopes that access to the copper mine at Oak Flat would result in a massive investment into the economy of rural Arizona, even if it comes at the cost of permanent destruction of historic petroglyphs, priceless art, and ceremonies located in spiritual lands of the Western Apache and other Native nations.

CONCLUSION 

The fight for Oak Flat ultimately highlights the tension between economic interests and the preservation of sacred art, ceremony, and religious freedom. This case called on the courts to broaden and redefine what it means to substantially burden a religious practice. The need for copper globally does not negate the destruction that would take place at Oak Flat if the land was transferred. Oak Flat is a sacred site for its art, culture, and spiritual connection to many nearby tribes. To turn it into a massive crater would be destroying the spiritual life of all who call it home. Oak Flat’s enormous spiritual significance, priceless carvings, and thousand-year old traditional ceremonies make this land worth protecting.

*The views expressed in this article do not represent the views of Santa Clara University.