The Southeast Arizona Land Exchange is a bad deal for Native Americans. It transfers thousands of acres of the Tonto National Forest to private ownership for the purpose of copper mining. The deal presents several fundamental problems.

In 2013 and 2014 more than 50 tribes, along with the Society for American Archaeology, various conservation groups and FCNL, advocated vigorously for the protection of the Oak Flats wilderness lands in Southeast Arizona. Senators McCain and Flake, along with some of Arizona’s congressional representatives, sought to approve a sale of mining rights in and under this area to two foreign copper mining companies. The legislation they promoted, the Southeast Arizona Land Exchange and Conservation Act, gave 2,400 acres to Resolution Copper, a global mining entity whose proposal is to dig “a mile-wide hole 7,000 feet deep in search of copper,” according to Lee Allen, writing for Indian Country Today. Resolution Copper’s plan admits that “the area might be subject to adverse effects from project activities.”

Native American Religious Freedom

The Apache and Yavapai peoples use this area for worship, ceremonies, burial sites, and collection of ceremonial plants and traditional medicines. Both the American Indian Religious Freedom Act and the Native American Graves Protection and Repatriation Act require consultation with affected tribes before any decisions about a land transfer that affects tribal rights. The affected tribes are not being consulted in this deal.

Water

The copper mining project contemplated by this bill will require the diversion of 13 billion gallons of water per year, enough to supply 20,000 homes in the area. In this arid region, such diversion and use of water resources cannot help but have a devastating impact on the watersheds in the entire surrounding area. Environmental reviews – to track water tables and potential pollution of the water cycled through the mining operation – are limited in the bill’s language.

Fiscal fault lines

The deal described by this bill would transfer billions of dollars of land and mineral value – at just pennies on the dollar – to a private partnership, which includes a Chinese company as a partner. Not only would the partnership get a bargain on the mineral rights – it is also not required to meet anywhere near the full cost of the impact of its mining project on the region. Those costs will fall back on the U.S. government and on the people living in the area. Given congressional concerns about the nation’s overall fiscal health, this seems to be a negative investment.

Updates

December 2014

Senator McCain defined copper mining as a matter of national security (even though the copper would be going to other countries – not the U.S.) and attached the legislation to the National Defense Authorization Act.

Proponents of a controversial copper mine deal managed to get authorization for their project attached to the National Defense Authorization Act (NDAA) that is now railroading through Congress like a slow-moving, but unstoppable freight train. The Southeast Arizona Land Exchange (formerly H.R. 687), along with two other provisions that take lands out of the control of native peoples, was attached to the defense bill in the House Rules Committee, over the strong objections of Representative Cole of OK and three Democratic committee members. In two cases, these bills allow private developers to interfere with sacred sites protected and revered by several tribes, and in two of the cases, serious environmental damage questions should be examined with the affected tribes before proceeding. The House has debated the Southeast Arizona Land Exchange bill, and it did not have sufficient support to proceed to a vote. The Senate had not debated or voted on its companion bill, S. 339.

The NDAA is considered a “must pass” bill. Other amendments to the bill, except for these land deals, have been strongly and successfully resisted by the leadership of the Armed Services Committees in both houses. Just these few opportunities to, once again, take lands and cultural rights from native peoples were allowed to go through. The House passed the NDAA and the Senate is expected to vote during the week of December 8.

June 2015

Apparently the story isn’t over yet. Lydia Millet, a contributing opinion writer for The New York Times reported on May 29 that members of the San Carlos Apache have “come home” to Oak Flats, a site that is sacred to the Apache and to five other tribes in Arizona. Millet reports:

Three hundred people, mostly Apache, marched 44 miles from tribal headquarters to begin this occupation on February 9. The campground lies at the core of an ancient Apache holy place, where coming-of-age ceremonies, especially for girls, have been performed for many generations, along with traditional acorn gathering. It belongs to the public, under the multiple-use mandate of the Forest Service, and has had special protections since 1955, when President Dwight D. Eisenhower decreed the area closed to mining — which, like cattle grazing, is otherwise common in national forests — because of its cultural and natural value. President Richard M. Nixon’s Interior Department in 1971 renewed this ban.

In approving this deal, Millet concludes, “Congress has handed over a sacred Native American site to a foreign-owned company for what may be the first time in our nation’s history.”

July 2015

On June 17, Representative Raul Grijalva (AZ) introduced H.R. 2811 to repeal a section of last year’s National Defense Authorization Act (NDAA) that traded a Native American sacred site in Southeast Arizona to a copper mining company. Fourteen co-sponsors joined Representative Grijalva on this bill, which is called the “Save Oak Flats Act.”

The bill includes a succinct summary of the amendment to the NDAA and its impact on tribes in the area:

“Congress finds as follows: 7 (1) Section 3003 of the … National Defense Authorization Act for Fiscal Year 2015 (Public Law 113–291) authorizes approximately 2422 acres of Forest Service land known as ‘‘Oak Flat’’ in the Tonto National Forest in Southeastern Arizona that is sacred to Indian tribes in the region, including the San Carlos Apache Tribe and the Yavapai-Apache Nation, to be transferred to a mining company called Resolution Copper. That company plans to hold the Forest land privately for a mining project that will result in the physical destruction of tribal sacred areas and deprive American Indians from practicing their religions, ceremonies, and other traditional practices.

The mining project will also create significant negative environmental impacts by destroying the area and depleting and contaminating precious water resources.

(2) Once Resolution Copper owns the Oak Flat area, it plans to use the highly destructive block cave mining method to remove one cubic mile of ore that is now 7,000 feet beneath the surface of the earth without replacing any of the earth removed because that is the cheapest form of mining. Resolution Copper admits that the surface will subside and ultimately collapse, destroying forever this place of worship.”

Rep. Grijalva’s bill also recites the flawed process that led to the adoption of this controversial trade. Although the original bill authorizing this transfer (H.R. 687) had been brought up for debate and vote twice in the House, it was withdrawn each time for lack of sufficient support. The Senate’s version of the bill (S. 339) had never been considered on the Senate floor, or even marked up in committee.

The federal government “has a trust responsibility acknowledged by Congress to protect tribal sacred areas on Federal lands. These laws require meaningful consultations with affected Indian tribes before making decisions that will impact American Indians,” the bill states. The land-swap attached in the final hours of debate on the National Defense Authorization Act violated the trust responsibility and applicable laws, with no prior consultation with affected tribes. In fact, tribes in Arizona and across the country were vehement and vocal in opposition to this deal.

July 2016

The Forest Service has been engaged in an Environmental Impact Study to gather information and comments on these and other issues that the exchange with Resolution Copper entails. The Forest Service’s notice in the Federal Register presents a thorough history of the decision process so far and the issues it raises. Several faith-based organizations participated in the comment process.

The Forest Service has few options, because the NDAA directed that the exchange will occur, and once it does occur, the mining will be taking place on private land. However, the Forest Service is reviewing the impact of roads, pipelines, water and power usage that extend beyond the privately owned land and affect forest land and surrounding residents and towns. The comment period closed on July 17 (after an extension from the original announcement.) The Forest Service must now prepare its report.