U.S. Supreme Court to Review Apache Stronghold’s Case on Nov. 22, 2024
For Immediate Release: November 7, 2024
Media Contact: Ryan Colby | media@becketlaw.org | 202-349-7219
WASHINGTON – A coalition of Western Apaches, other Native peoples, and non-Native allies yesterday asked the Supreme Court to reject plans by the federal government and a multinational mining giant to destroy a sacred site where Apaches have held religious ceremonies for centuries. In Apache Stronghold v. United States, the Ninth Circuit Court of Appeals refused to stop the federal government from transferring Oak Flat to Resolution Copper, a foreign-owned mining company that plans to turn the site into a massive mining crater, ending Apache religious practices forever (Watch this short video to learn more). The latest Supreme Court filing rebuts the government’s argument that religious freedom protections in the U.S. Constitution and the Religious Freedom Restoration Act (RFRA) do not apply on federally controlled land.
Since time immemorial, Western Apaches and other Native peoples have gathered at Oak Flat, outside of present-day Superior, Arizona, for sacred religious ceremonies that cannot take place anywhere else. Known in Apache as Chi’chil Biłdagoteel, Oak Flat is listed in the National Register of Historic Places and has been protected from mining and other harmful practices for decades. These protections were targeted in December 2014 when a last-minute provision was slipped into a must-pass defense bill authorizing the transfer of Oak Flat to the Resolution Copper company. Resolution plans to turn the sacred site into a two- mile-wide and 1,100-foot-deep crater. The majority owner of Resolution Copper, Rio Tinto, sparked international outrage when it deliberately destroyed 46,000-year-old Indigenous rock shelters at one of Australia’s most significant cultural sites.
“Oak Flat is our spiritual lifeblood—like Mt. Sinai for Jews or Mecca for Muslims—the sacred place where generations of Apache have connected with our Creator,” said Dr. Wendsler Nosie Sr. of Apache Stronghold. “The government should protect Oak Flat just like it protects the sacred places of all other faiths in this country—not give it to a foreign-owned mining company for destruction.”
Apache Stronghold—a coalition of Apaches, other Native peoples, and non-Native allies—filed this lawsuit in January 2021 seeking to halt the proposed mine at Oak Flat. The mine is opposed by 21 of 22 federally recognized tribal nations in Arizona, by the National Congress of American Indians, and by a diverse coalition of religious denominations, civil-rights organizations, and legal experts. Meanwhile, national polling indicates that 74% of Americans support protecting Oak Flat. The Ninth Circuit ruled earlier this year that the land transfer is not subject to federal laws protecting religious freedom. But five judges dissented, writing that the court “tragically err[ed]” by refusing to protect Oak Flat.
“Blasting the birthplace of Apache religion into oblivion would be an egregious violation of our nation’s promise of religious freedom for people of all faiths,” said Luke Goodrich, vice president and senior counsel at Becket. “The Supreme Court has a strong track record of protecting religious freedom, and we expect the Court to take this case and confirm that Native American religious practices are fully protected by federal law.”
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.
Apache Stronghold v. United States is one of the most significant decisions pending the U.S. Supreme Court. To allow Resolution Copper/Rio Tinto to destroy sacred Oak Flat would be like destroying St. Patrick’s Cathedral to put up a McDonald’s just in time for Christmas. The masses (no pun intended) of people would go ape shit cray-cray. Resolution Copper/Rio Tinto is capable of such atrocities; may enough of the judges show true heart-mind and make the right-wise decision in favor of Apache Stronghold and the well-being and balance of the Earth. – Mankh
An example of what Rio Tinto has done… Simandou, Guinea, “with over two billion tonnes of reserves and some of the highest grades [iron ore] in the industry (66% – 68% Fe which attracts premium pricing), has a back-of-the-envelope calculation value of around $110 billion at today’s prices.”
Brazil’s highest court has upheld a ban on missionaries entering reserves that are home to isolated and recently contacted Indigenous people during the pandemic.
The decision comes in response to a lawsuit filed by Indigenous organizations against a law passed in July 2020 that allowed missionaries to remain inside these reserves despite the pandemic, in violation of Brazil’s official policy in place since 1987.
According to Indigenous organizations, it’s crucial to reaffirm the non-contact policy under the administration of President Jair Bolsonaro that has pushed to “integrate” Indigenous people into society, and has been cozy with the evangelical movement.
Besides the risk of disease spread, the presence of missionaries in these reserves undermines traditional cultures and social cohesion, and compels these nomadic communities to settle down, making the land more vulnerable to invasions by illegal ranchers and loggers, activists say.
Brazil’s highest court has upheld a ban on missionary activity inside reserves that are home to isolated or recently contacted Indigenous people, in a bid to protect the communities against COVID-19.
Although the country’s official indigenist policy toward these groups since 1987 has been to not engage in any contact, regardless of whether there’s a pandemic, a federal law passed in July 2020 allows religious missionaries to remain inside these reserves. This triggered a lawsuit by Indigenous and political organizations, which the Supreme Federal Court (STF) has now ruled in favor of.
The 2020 law attempted to “legitimize something that is already forbidden,” said Carolina Ribeiro Santana, a lawyer for the Observatory for the Human Rights of Isolated and Recently Contacted Indigenous Peoples (OPI), one of the co-authors of the lawsuit. “As we are under an anti-Indigenous government, it is important to have a decision which reassures the Indigenous policy.”
OPI authored the lawsuit along with the Articulation of the Indigenous Peoples of Brazil (Apib) — the country’s largest Indigenous organization — and the Workers Party (PT). Justice Luís Roberto Barroso issued the court’s ruling on Sept. 24.
Uncontacted Indigenous community in the Brazilian state of Acre. Although the country’s official indigenist policy toward these groups has been to not engage in any contact, regardless of whether there’s a pandemic, a federal law passed in July 2020 allows religious missionaries to remain inside these reserves. Image by Gleilson Miranda / Government of Acre via Wikimedia Commons (CC BY 2.0).
Last year, the court had already forbidden the entry of outsiders into these areas while hearing another case where Indigenous organizations urged the federal government to implement measures, including imposing sanitary barriers, to protect the Indigenous population from COVID-19. “In the current situation, where there is an ongoing pandemic, the peoples in isolation and recent contact are the most exposed to the risk of contagion and extinction,” Barroso said in that earlier ruling.
But threats against uncontacted Indigenous groups have escalated under the government of President Jair Bolsonaro, who has called for Indigenous people to be “integrated into society.” Bolsonaro’s hostility toward Indigenous people is no secret; last year, in his weekly live transmission on social media, he declared that, “more and more, the Indigenous is a human being just like us.”
At the same time, Bolsonaro is hugely popular with Brazil’s evangelicals, who are credited with helping him win the 2018 election. (His middle name translates to “Messiah.”) Once in office, he appointed evangelical leaders to key posts in his administration, including Ricardo Lopes Dias, who, until November 2020, headed the department responsible for protecting isolated and recently contacted communities at Funai, the Indigenous affairs agency. Dias was a pastor with the New Tribes Mission, an evangelical group notorious for reportedly spreading disease among the Zo’é people living in northern Pará state. More than a third of the Zo’é population subsequently died. Another top official, Damares Alves, the minister for women, family and human rights, is also reportedly linked to missionary groups, according to BBC News Brasil.
“These people choose isolation,” anthropologist Aparecida Vilaça, from the National Museum of the Federal University of Rio de Janeiro, told Mongabay in a phone interview. “What the state has to do is to not let anyone get in.”
One of the reasons for this isolation, according to Indigenous organizations, is precisely the trauma of almost being exterminated by the diseases brought by non-Indigenous people, like influenza, measles and malaria; Indigenous people, especially isolated ones, don’t have immunity to many of these pathogens.
But the threat of disease isn’t the only one introduced by missionaries, even to non-isolated groups. According to lawyer Eliésio Marubo, from Vale do Javari reserve in northern Amazonas state, missionaries undermine the social cohesion of the community by favoring the leaders who support them.
“The culture of our people is also weakened because certain practices are forbidden [by the missionaries], like traditional medicine,” Eliésio Marubo said. “The relationship with the territory also changes. Before, we used to move around a lot, but the missionaries want us to stay in one place only.”
Vale do Javari is home to the largest number of isolated Indigenous people in the world: 10 out of the 28 confirmed groups of isolated people in Brazil. The reserve is also home to non-isolated Indigenous groups, like the Marubo.
“It is a cultural destruction,” anthropologist Aparecida Vilaça said of the missions’ presence in Indigenous reserves. Vilaça witnessed the effects of missionary groups on an Indigenous community in Rondônia, also in the Amazon region. “They do a very deep process of humiliation of the traditional practices, by saying their dances and beliefs are things of the devil,” she said.
According to Vilaça, these changes in the traditional way of life make the Indigenous people more vulnerable to several economic interests. “The missionaries lead to the settling of all the community in the same place, releasing land to farmers and loggers. We can’t forget that these lands are very coveted,” she said.
Vilaça said the desire to convert Indigenous groups started with the colonization of Brazil, by the Catholic Church, and is now led by evangelical groups, some of which have deep pockets.
Rejection of “consentement” thesis
As the lawyer for Univaja, the Union of Indigenous People of Vale do Javari, Eliésio Marubo went to court last year against Andrew Tonkin, a U.S. evangelical Baptist missionary who was planning to travel to the reserve amid the pandemic to contact isolated Indigenous groups.
“Missionaries have been harassing us for 60 years,” he said. “They have helicopters, airplanes and they fly from here to the United States.”
Besides granting Univaja’s request to ban Tonkin’s entry, a federal court also ordered the expulsion of missionaries still inside the territory. Despite the victory, the missionaries are still lurking, Eliésio Marubo said. “They remain on the borders of the reserve, trying to co-opt people,” he told Mongabay over the phone.
Uncontacted Indigenous group in the Brazilian state of Acre. Evangelical missionaries use several strategies to approach Indigenous communities, including giving gifts of axes and knives. They also co-opt some Indigenous leaders, provoking social conflicts, and tell the Indigenous people their dances and beliefs are evil. Image by Gleilson Miranda / Government of Acre via Wikimedia Commons (CC BY 2.0).
In a setback for the Indigenous groups, Justice Barroso denied their request to remove the missionaries already inside the reserves. Besides creating a risk of contagion, Barroso said — since evicting them could “require third parties to enter such areas” — it was not clear that isolated groups had not consented to their presence.
“How can you give consent for something that you have no idea what it is? To people who don’t even speak their language?” Vilaça said. She added that missionaries use several strategies to win over the isolated people. “They offer axes, knives, and other benefits to those who join them.”
In their argument to the STF, the Indigenous groups noted that the way isolated communities express their will is different from the rest of society. “Our society gives prevalence to speech, to writing, and these people are talking to us in a different way. When they run away or attack an approaching person, it is a way of saying no,” Santana said.
Barroso’s ruling is a precautionary measure, meaning the case will be subject to trial in the STF plenary. In a statement, the office of Brazil’s attorney general said it had been notified of the decision but will only manifest in the court. Funai didn’t reply to requests for comment.
At its best, the Supreme Court is meant to make the Constitution adaptable to the changing needs of society. In reality, it is the top tier of a capitalist, bureaucratic ladder that turns human need into semantic arguments for the sake of parceling out freedoms just enough to pacify the masses. It speaks clearly to the interests served by this system when an institution that asserted African Americans are not people (Dred Scott v. Sandford 1857), permitted compulsory sterilization of the intellectually disabled (Buck v Bell 1927), and condoned Japanese internment (Korematsu v. United States 1944) still has relevance and power today.
The Supreme Court has been using that power to further corporate personhood and weaken the power of the collective. With President Nixon’s nomination of Lewis Powell Jr. onto the Supreme Court in 1972 came the presence of the U.S. Chamber of Commerce’s special interests for decades to come. In a memo to the Chamber shortly before his appointment, Powell wrote of the U.S. economic system coming under attack by everyone from Communists to college students. He urged that businesses take a more active role in defending themselves from this siege, especially through direct involvement in politics. Since then, the Chamber has had increasing influence over the cases brought before the supreme court and their decisions. Their input can be found in the majority of cases concerning the proliferation of corporate rights.
Front row, left to right: Associate Justice Ruth Bader Ginsburg, Associate Justice Anthony M. Kennedy, Chief Justice John G. Roberts, Jr., Associate Justice Clarence Thomas, Associate Justice Stephen G. Breyer. Back row: Associate Justice Elena Kagan, Associate Justice Samuel A. Alito, Jr., Associate Justice Sonia Sotomayor, Associate Justice Neil M. Gorsuch. Credit: Franz Jantzen, Collection of the Supreme Court of the United States
Cut to modern day. The Chamber has won 69% of the cases in which they have been involved in since John Roberts became Chief Justice in 2005. In Citizens United v. Federal Election Commission, the court found that political spending is a form of protected speech under the First Amendment and the government may not keep corporations from spending money to support or denounce individual candidates in elections. Horne v the Department of Agriculture, reported as “small-time farmer” Marvin D. Horne taking on the government, actually concerns “Raisin Valley Farms,” the largest raisin producer in the California valley where most of the world’s raisins come from. The supreme court’s defense of their monetary compensation on the basis of the fifth amendment right to compensation from government takings sets precedent that will stand to benefit large corporations and drag us deeper into a reality where a business can have all of the same rights as a person, but with enough money and power to structure the entire country to their benefit. In both of these cases, the Chamber of Commerce filed multiple briefs in order to influence the opinion of the court. Meanwhile, average Americans who do not spark the interest of massive lobbying groups are toiling away in the lower courts, being issued arrest warrants by judges in collusion with collections agencies, and being jailed in a return to debtor’s prisons thought to be a thing of the past.
What naturally follows the bestowing of human rights to corporations is the stripping of those rights from the rest of the population. In AT&T Mobility LLC v. Concepcion in 2011, corporations gained the power to force consumers to individually file lawsuits against a company, allowing them to protect themselves from class action lawsuits by consumers (Oh, is that a Chamber of Commerce amicus brief I see?). This legal protection was expanded this year to employee class action lawsuits in Epic Systems v. Lewis (wow Chamber we really can’t keep meeting like this). One month later in Janus v. American Federation of State, County, and Municipal Employees, the court ruled that government workers who choose not to join unions may not be required to help pay for collective bargaining, effectively crippling public sector unions. Corporations have successfully cultivated legal ground for exploitation of their workers and relieved themselves of the need to be accountable to their customers.
Brett Kavanaugh. AP photo/ Dennis Cook
That is where we have been and where we are now, but where are we headed? President Donald Trump, a blunt force for the fascist fraction of the capitalist class, has nominated his second supreme court justice. In Brett Kavanaugh, big business will find yet another bedfellow in the high courts (here is his endorsement from the Chamber of Commerce). He has consistently shown that his loyalties lie with the wealthy and not working Americans, a position that seems painfully redundant for today’s supreme court. Who stands to benefit from the appointment of a judge that the NRA has vowed to spend $1 million to get into office? The Judge has stood staunchly against unions in the majority of cases that have come before him. In Midwest Division-MMC, LLC v. NLRB, when nurses were denied union representation in peer-review meetings, Kavanaugh sided with the hospital and their need for confidentiality over the worker’s rights. In NLRB v. CNN, Kavanaugh sided with CNN in their removal of unionized workers and denied that they took part in unfair labor practices. He has expressedopinions that undocumented workers are not eligible to unionize and, furthermore, negate the power of the unions they participate in. His stance on net neutrality blatantly favors the interests of large telecommunications agencies. In 2016 he went after the Consumer Protections Bureau, stating that their structure is unconstitutional and the President should have the power to fire the director. People are understandably concerned about his standing on social issues, but more troubling is his love affair with big business and direct opposition to workers. Kavanaugh’s appointment not only threatens decisions like Roe v. Wade, but also intensifies the onslaught of Fascist consolidation.
We’ve been fed the belief that our system of government has built-in checks and balances against the absolute corruption of absolute power. Bourgeois democracy and its state apparatus do not serve our interests. Instead, state institutions and their representatives exist to divide, disorganize, and pacify us. Courts make rulings that throw piecemeal concessions toward our bourgeois democratic rights while simultaneously eroding our power to band together and fight back against the interests of the capitalist class. Laws and legislation are made deliberately confusing through legalese and opaque proceedings in order to keep us from exercising our true power – the power that lies in our direct, organized action. Justice comes from people organized as a social force, fighting for their interests.
Currently, the retraction of bourgeois democratic rights has the country crying Fascism, but its root is in the social, political, and economic arrangement – capitalism – that has reached a structural crisis, thanks to banking and finance. Violence based on toxic ideologies are meant to rally a base of support for policies that will only make the rich richer. In order to truly resist Fascism, we must recognize that capitalism is still the problem. We must be vigilant against the capitalist alternatives. We must recognize that the state apparatus and institutions like the Supreme Court fundamentally exist to protect the wealth of the few while screwing everybody else over. We must be aware of these interests on our streets, in our workplaces, and in our communities. We must resist them globally. We must resist them nationally. We must resist them locally.
NEW ORLEANS— From economists and scientists to religious leaders and business owners, dozens of groups this week submitted “friend of the court” briefs asking the U.S. Supreme Court to maintain protections for 1,600 acres of “critical habitat” designated in Louisiana for endangered dusky gopher frogs.
“It’s inspiring to see so many people eloquently urge our nation’s highest court to protect endangered wildlife,” said Collette Adkins, a Center attorney fighting in the Supreme Court for the frog’s protections. “While these folks represent a wide range of interests, they’re united in supporting these little frogs, their habitat protections and the Endangered Species Act. Like most Americans, these scientists, businesspeople and faith leaders recognize that imperiled animals need a place to live.”
The U.S. Supreme Court in January granted a “petition for certiorari,” filed by the timber company Weyerhaeuser, to reconsider a June 2016 decision from a three-judge panel of the 5th Circuit Court of Appeals that upheld a 2012 rule establishing the frog’s protections.
That rule protects 6,477 acres of critical habitat in Mississippi and Louisiana, including 1,600 privately owned acres of unoccupied frog habitat in St. Tammany Parish, Louisiana. The panel held that the U.S. Fish and Wildlife Service reasonably concluded that the St. Tammany Parish land is essential for recovery of the frogs, which are now confined to just three sites in southern Mississippi — with only one site regularly showing frog reproduction.
The “friend of the court” briefs, also known as “amicus briefs,” filed this week ask the Supreme Court to affirm the panel decision. Volunteer lawyers and law students wrote the briefs, in a coast-to-coast effort to represent scientists, legal experts and others with economic, scientific, moral and aesthetic interests affected by this case:
Landowners who value the presence of endangered species on their property and welcome efforts to preserve their habitats;
Faith-based groups recognizing a shared commitment, rooted in religious teachings and principles, to care for the earth and its species;
Scientists with expertise in conservation biology, including Stuart Pimm and E.O. Wilson;
Frog experts who study amphibian ecology and have expertise in conservation of gopher frogs;
Economists and law professors with expertise in economic theory, cost-benefit analysis, the valuation of environmental goods and environmental law and regulation;
Small-business owners including ranchers, ecotourism entrepreneurs and artists, who make an economic case for biodiversity and stewardship.
The Center for Biological Diversity organized the amicus effort and, along with the Gulf Restoration Network, intervened in the case. Participating as parties in the litigation before the Supreme Court, the Center and GRN last week filed their brief in support of the frog’s habitat protections.
Background
The dusky gopher frog (Rana sevosa) is a warty, dark-colored frog with ridges on the sides of its back. When picked up, these frogs cover their eyes with their forefeet, possibly to protect their faces until predators taste their bitter skin secretions and release them. Gopher frogs spend most of their lives underground in burrows created by gopher tortoises — hence their name.
Once prevalent in Louisiana, Mississippi and Alabama, dusky gopher frogs are nearly extinct. More than 98 percent of longleaf pine forests — upon which the frog and many other rare animals depend — have been destroyed. Fire suppression, drought, pesticides, urban sprawl, highway construction and the decline of gopher tortoises have made this frog so rare it now lives in only a few small Mississippi ponds, with only one pond showing consistent frog reproduction.
In response to a Center lawsuit, the Fish and Wildlife Service listed the gopher frog as a federally endangered species in 2001. The lawsuit and advocacy by the Center also prompted the 2012 critical habitat designation at issue in the Supreme Court case. Additionally, in response to legal advocacy by the Center and Gulf Restoration Network, the agency released a final recovery plan for the frogs in 2015.
Featured image: Dan From Indiana on flickr. Some Rights Reserved. The Rights of Nature Movement continues to advance through lawmaking and court decisions.
MERCERSBURG, PA, USA: Today, the Colombia Supreme Court of Justice issued a decision declaring that the Amazon region in Colombia possesses legal rights.
The Court declared that the “Colombian Amazon is recognized as an entity, a subject of rights” which include the right to “legal protection, preservation, maintenance and restoration.”
The Supreme Court’s decision builds on the precedent set in November 2016, when Colombia’s Constitutional Court ruled that the Atrato River possessed legal rights to “protection, conservation, maintenance, and restoration.” The Supreme Court refers to the 2016 decision in its ruling.
The Colombia Supreme Court ruling focused on the devastating impacts of deforestation and climate change on the Amazon, and the need to make significant change in how the region is protected.
In making its finding that the Amazon has rights, the Court cited the Constitutional Court’s 2016 opinion, in which that court wrote that it was “necessary to take a step forward in jurisprudence” to change the relationship of humankind with nature before “before it is too late or the damage is irreversible.”
Transforming nature from being treated as property under the law, to be considered as rights-bearing – and thus in possession of legally enforceable rights – is the focus of the growing Rights of Nature movement.
Throughout history, women, indigenous peoples, and slaves have been treated as property under the law, without legal rights. Legal systems around the world today treat nature as property, and thus right-less. Under these systems, environmental laws regulate human use of nature, resulting in the decline of species and ecosystems worldwide, and the acceleration of climate change.
The first law was passed in Tamaqua Borough, Pennsylvania, in the United States, in 2006. Today, dozens of communities in more than 10 states in the U.S. have enacted Rights of Nature laws. CELDF assisted in drafting the first Rights of Nature constitutional provisions, which are part of the Ecuador Constitution of 2008.
Mari Margil, CELDF’s Associate Director who heads the organization’s International Center for the Rights of Nature explained, “The Court’s decision is an important step forward in moving to legal systems which protect the rights of nature.”
She added, “The collapse of ecosystems and species, as well as the acceleration of climate change, are clear indications that a fundamental change in the relationship between humankind and the natural world is necessary. We must secure the highest legal protections for nature through the recognition of rights.”
About the Community Environmental Legal Defense Fund (CELDF) & the International Center for the Rights of Nature
The Community Environmental Legal Defense Fund’s mission is to build sustainable communities by assisting people to assert their right to local self-government and the rights of nature. CELDF’s International Center for the Rights of Nature is partnering with communities and organizations in countries around the world to advance the rights of nature.
Today, CELDF is partnering with communities, indigenous peoples, and organizations across the United States, as well as in Nepal, India, Australia, and other countries to advance rights of nature legal frameworks.
