Oak Flat Deal Violates Apache Rights, Mining Best Practices

Peter d'Errico

Thomas Jefferson's ghost stalks Oak Flat. Promoters of the proposed copper mine on Apache ancestral lands say more than 3,000 jobs would be created over the projected life of the mine.

In 1802, President Jefferson mused about how to extinguish Indian land title. He wrote, "There is perhaps no method more irresistible of obtaining lands from [Indians] than by letting them get in debt, which when too heavy to be paid, they are always willing to lop off by a cession of land."

With his vision of a republic of small farmers, Jefferson probably couldn't have imagined a global corporatist economy in which most people are wage laborers. If he had, he would have understood the need for "jobs" multiplies the power of debt.

The U.S. didn't wait for the Apache to run into debt. Instead, in December 1872, U.S. Army General George Crook took a more direct approach. Under orders from President Grant, he deployed 'friendly' Apache scouts to lead the Army in an all-out effort to 'remove' resisting Apaches to the San Carlos reservation, "a tract of country …withheld from sale and set apart" for the Apache.

The definition of the reservation shows the Doctrine of Christian Discovery at work. The U.S. presumed to own the land and make it available (or not) for sale, as it saw fit. The Doctrine prescribes that Indians cannot hold title, but can only "occupy" land with "permission" from the government.

With San Carlos, the government not only gave permission for the Apache to occupy, but also mandated they quit occupying the rest of their homelands. Oak Flat, though part of ancestral Apache lands, falls in the U.S. legal category of "public lands" "owned" by the United States.

The U.S. Congressmen and Senators who purported to give Oak Flat to Resolution Copper made the decision that a copper mine was desirable and that the compensation was an exchange of Oak Flat for other lands. If the Apache held title, they would be in position to decide for themselves whether to allow a mine and, if so, what economic value to demand in exchange.

The U.S. actions run afoul of the United Nations Declaration on the Rights of Indigenous Peoples in at least two ways.

First, the Doctrine of Christian Discovery falls under the U.N. condemnation of "doctrines, policies and practices based on or advocating superiority of peoples or individuals on the basis of national origin or racial, religious, ethnic or cultural differences." Such doctrines "are racist, scientifically false, legally invalid, morally condemnable and socially unjust."

Second, the Declaration states, "States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources."

Though the U.S. endorsed the U.N. Declaration, it did so subject to a disclaimer that federal Indian law already meets the terms of the document. The Oak Flats land transfer demonstrates the falsity of that disclaimer.

The U.S. government did not "consult and cooperate in good faith" with the Apache, but took a detour through a defense appropriation bill to unilaterally engage with the mining company. As a New York Times columnist put it, "The [Oak Flat] land grab was sneakily anti-democratic even by congressional standards."

Although the "public" designation of Oak Flat deprives the Apache of direct legal control, it encourages a variety of non-Indians to oppose the transfer to the mining company. Rock climbers and other tourists and adventurers have joined the chorus of voices alleging the destruction of Oak Flats for a copper mine damages the "public interest."

One rock climber group argues, "the area stands to gain more from accentuating the recreational value of Oak Flat …than it does from the mining operation": "Mining in Arizona contributes roughly $5 billion a year to the economy…. Outdoor recreation…contributed $10.5 billion."

San Carlos opposition to the mine asserts the issue "is not jobs," but "desecration and destruction of one of our most important sacred sites, and the very real and great potential for disastrous harm to our environment including …water supplies."

Some Apaches dissent from the official view, including a former tribal historian who said, "There has not been a long history of ceremonial or cultural activities … at Oak Flat." Another dissenter affirmed her support for "the sacred core of our people, culture, tradition, language" and "the quiet elder members who have said, 'Oak Flat is not sacred.'"

Sacredness cannot be measured by statistics, but archaeological findings show abundant evidence of Apache presence at Oak Flat, underscoring the March 4 decision by the U.S. National Park Service placing the area on the National Register of Historic Places.

As for the promised jobs, reality may be otherwise. In February 2016, "Rio Tinto… reported a 51% fall in profit for 2015 and warned that continued low prices for most of the minerals it produces will see the dividend effectively cut in half in the current year." As a Reuters correspondent pointed out, "The key point here is there is no statistical 'truth' when it comes to a market such as copper. Forecasts will invariably vary, because there are so many variables."

Oak Flat exemplifies the increasingly contentious environment for mining around the world. As David Humphreys wrote in his 2015 book, "The Remaking of the Mining Industry," "One of the factors which will have a constraint on future mineral developments is increased pressures on mining and mining costs arising from environmental impacts on land, water, and air."

Humphreys was chief economist at two of the world's largest mining companies: Rio Tinto—a parent of the company that would mine at Oak Flat—and Russia's largest mining company, Norilsk Nickel.

Humphreys states, "The export of unprocessed raw materials is perceived as a hangover from the colonial era." He adds, the major mining companies are increasingly concerned to "engage with communities in the vicinity of mining operations," especially with regard to the "rights and needs of First Nation and Indigenous Peoples."

As an example of what Humphreys writes about, Rio Tinto's program for "Indigenous Employment Strategy" in Australia, states it "is the largest employer of Indigenous Australians outside the public sector. This has … occurred … through carefully thought out strategies intent on raising the engagement of Indigenous Australians in the workforce." James Anaya pointed out, "Rio Tinto, especially, has [built] what many human rights and environmental advocates consider to be good practices."

But, contrary to Humphreys' conclusion that "There is now an acceptance that the old ways of doing business and relying on the central government to deal with local opposition to mining activity is simply no longer acceptable," the Apache were not partners in the assessment of the proposed Oak Flat land swap to facilitate copper mining.

As Humphreys points out, "The legitimacy of mining … in the public mind [has] less and less to do with utility of what it produced and more and more to do with how it’s produced." The problems of mining cannot be addressed "by education or improved public relations [because] they [are] fundamental problems of performance which [can] only be addressed by companies demonstrating a commitment to change their behavior."

Regardless of statements by U.S. proponents of the "benefits" of the proposed mine, the government failed to abide by the U.N. Declaration and the "best practices" of the mining industry. No wonder the opposition cries foul.

Peter d’Errico graduated from Yale Law School in 1968. He was Staff attorney in Dinebeiina Nahiilna Be Agaditahe Navajo Legal Services, 1968-1970, in Shiprock. He taught Legal Studies at the University of Massachusetts, Amherst, 1970-2002. He is a consulting attorney on indigenous issues.

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