Sen. John McCain (R-Ariz.) has been the subject of intense criticism from Native activists and their supporters over the past year for his role in orchestrating the sale of Oak Flat, an Apache holy site located in Arizona’s Tonto National Forest, to foreign mining conglomerates Rio Tinto and BHP Billiton. In December 2014, McCain and Sen. Jeff Flake (R-Ariz.) added a rider onto the must-pass National Defense Authorization Act, allowing the Oak Flat deal to slide through.
Members of the San Carlos Apache Nation know Oak Flat as Chich’il Biłdagoteel, a site where they gather food and medicinal plants and host dances and healing ceremonies. The area was once part of the old San Carlos reservation and functioned as a prisoner-of-war camp for the Apache during their decades-long struggle against the United States and Mexico. Not far from Oak Flat is a place called "Apache Leap" where, in 1870, Apache warriors plunged over a cliff to their deaths rather than surrender to the United States cavalry. Today the site contains the memory of Apache leaders like Geronimo, Cochise and Mangas Coloradas, and the tribe believes it belongs to powerful Diyin, or holy people.
Congress' move to sell off Oak Flat, which continues a long history of taking land from the Apache, provoked outrage and protests among Native activists and their supporters. Members of the San Carlos Apache Nation began an occupation of the site in February 2015, protesting the sale as an attack on religious freedom, and led a cross-country march from Arizona to Washington, D.C. that ended with a rally on the lawn of the Capitol building in July. In August, Adriano Tsinigine, a young Oak Flat supporter, tricked an unwitting Sen. McCain into taking a photo with a placard bearing the Apache slogan-turned-national-rallying-cry: "Protect Oak Flat."
The Apache are still occupying Oak Flat, and in the resilient spirit of their ancestors, they are holding out hope for a bill from Rep. Raul Grijalva (D-Ariz.) that would protect the land from development -- though the legislation is a long shot to make it through Congress.
Amid all this tension, many might be surprised to learn that 26 years ago, McCain was one of the strongest congressional supporters of protecting sacred sites like Oak Flat.
McCain Fought For Sacred Sites Legislation In 1989
In 1989, a younger, less bald but equally obstinate McCain led an attempt to protect Native American religious freedom and sacred sites that serves as forgotten prelude to the current fight over Oak Flat.
McCain was then the ranking member of the Senate Select Committee on Indian Affairs (now known as the Committee on Indian Affairs). McCain led the four-person Republican minority on the committee, which the late Sen. Daniel Inouye (D-Hawaii) chaired. Inouye was considered a champion of Native rights, called "one of the most honorable and courageous men modern Indian Country has known" in a memorialization from the National Congress of American Indians after his death in 2012.
McCain helped Inouye and the late Rep. Mo Udall (D-Ariz.) -- another strong advocate for Native peoples -- draft the Indian Gaming Regulatory Act in 1988, which established federal regulations for casinos on Indian land. To this day, the act is widely considered the most impactful legislation upon Indian Country the last half century.
Compared to Inouye and Udall, McCain was always a tough customer for Indian Country. An attorney who worked with and even fundraised for McCain, who asked to remain anonymous due to professional considerations, remembered the senator as hard-headed and hot-tempered. "He was helpful at times," the attorney told The Huffington Post, "but at times he would get extremely unpredictable, and people just didn’t want to bang heads with him."
"His relationship with the tribes was at times very strained, and he did not want to spend the time dealing with Indian issues," said the attorney.
But in 1989, McCain proposed legislation amending the 1978 American Indian Religious Freedom Act, which would have required the federal government to manage sacred sites in a manner that was "least intrusive on traditional Native American religions or religious practices." This amendment, which would have been enforceable in district courts, would have greatly strengthened protections for sacred sites on federal land in places like Oak Flat. Udall proposed companion legislation in the House.
On Sept. 28, 1989, McCain called to order a hearing on the legislation, with only Sens. Tom Daschle (D-S.D.) and Slade Gorton (R-Wash.) in attendance. Inouye wanted to attend the hearing, McCain said at the time, but had to be on the Senate floor to manage a Department of Defense appropriations bill. Native American issues were never at the top of any politician’s list of priorities in Washington -- even for a leading Indian Country advocate like Inouye.
Despite its low attendance, McCain insisted that the day’s hearing was important. He introduced the bill, he said, "to provoke serious thought and discussion on these issues" in hopes of reaching "genuine consensus on the changes that are necessary to make the American Indian Religious Freedom Act into an effective law."
"It is incumbent upon us to ensure that those who occupied the lands of our nation before us be ensured of their religious freedom," McCain said in his opening statement.
McCain's proposed changes came in response to a 1988 Supreme Court ruling, Lyng v. Northwest Indian Cemetery Protective Association, that found that the religious freedom protections contained in the First Amendment did not require the federal government to prevent the destruction of a Hoopa Valley Tribe sacred site in Northern California for logging roads -- a ruling that severely weakened the American Indian Religious Freedom Act.
Unlike other religions dominant in the U.S., many Native beliefs are site-specific, holding certain lands and natural formations to be sacred points of connection to the ancestors and the spirit worlds. Contrary to the Supreme Court's ruling, McCain's bill argued that the federal government had a responsibility to protect sacred sites on federal lands from actions that "will pose a substantial and realistic threat of undermining and frustrating such religion or religious practice."
During the Sept. 28 hearing, representatives of the Navajo, Hopi, Winnebago, Koyukon, Yurok and Native Hawaiian peoples testified, expressing resounding support for McCain’s amendment as essential legal protection for Native religious rights, particularly in light of the previous year's Supreme Court ruling. The decision "undermined the foundation of religious freedom by denying American Indians the protections afforded to other Americans," said Leonard Haskie, interim chairman of the Navajo Nation. "The protection and respect accorded to the religions of Native people must be equal to those accorded other religions."
There was also testimony from Reid Chambers, an attorney at the Indian law firm Sonosky, Chambers & Sachse, who supported the legislation but raised legal and political questions that have surfaced again in the recent debate about Oak Flat: How does the federal government determine whether a sacred site is "indispensable," and who, exactly, has the authority to determine what is "traditional" and sacred to Native people in the first place? Indeed, McCain’s proposal left these questions unanswered -- although legislation that Inouye later introduced based upon McCain’s bill specified that Native traditional leaders and governments should have the power to determine what is sacred.
Representatives of the National Park Service and the Forest Service, then led by the administration of George H.W. Bush, opposed McCain’s proposed changes to the law. The Park Service argued that the measure was unnecessary in light of the Bureau of Land Management’s existing consultation process with tribes, and the Forest Service expressed concern with legal ambiguities in the legislative language -- though it sought to assure tribes that the agency supported "the basic philosophy underlying" the bill.
McCain grilled the Park and Forest Service representatives, asking why their agencies did not believe the American Indian Religious Freedom Act needed to be amended. "Does it arouse any curiosity in you that Native Americans almost unanimously believe -- or the ones that are directly affected by this law -- believe that some changes need to be made?" an incredulous McCain asked, chastising both agencies for failing to coordinate a unified standard to address Native American demands for protection of sacred sites.
On that day, it seemed, McCain’s willingness to bang heads worked to the benefit of tribes.
A Failed Pursuit
McCain described his 1989 effort to amend the American Indian Religious Freedom Act as primarily focused on developing a consensus proposal that could get through Congress. But the legislation never went up for a committee vote and did not make it to the Senate floor.
On the House side, an aging Udall was unable to push the bill to passage following unfavorable comments from Bush’s Department of Justice and Department of Agriculture. "[Udall] was too ill to push it through, so we decided to back off," Eric Eberhard, minority counsel for the Senate Select Committee on Indian Affairs, told the University of New Mexico Natural Resources Journal in 1993.
Yet the legislation played a central role in the ongoing political and legal debates about Native American religious freedom and sacred sites, particularly in the following year when the Supreme Court denied tribes an exemption from state drug laws regulating peyote, a mild hallucinogen and religious sacrament used in Native American Church ceremonies.
The peyote decision reinvigorated calls for the protection of Native religious freedom and returned focus to McCain’s proposed changes to the law. "[T]he 1989 amendment will finally give Indians the ability to fight the destruction of their sacred sites," wrote Kristen Boyles, who was the note editor of the Cornell Law Review in 1991. "No remedial legislation proposed since has so specifically and evenhandedly addressed sacred site issues on federal public lands," wrote attorney Jody Neal-Post in the University of New Mexico Natural Resources Journal in 1993.
Despite support for McCain and Udall’s proposed amendment to the American Indian Religious Freedom Act, it remains to this day a gutted and largely ineffective law. In another attempt to address these problems, Inouye introduced the Native American Free Exercise of Religion Act in 1993, which would have granted protections for sacred sites similar to those in McCain’s bill and clarified the law's ambiguities by giving tribes the authority to designate sacred sites. McCain -- notably -- was not a co-sponsor of the bill, and it failed to make it out of committee. While protections for sacred sites still remains in a legal morass, Congress did succeed in amending the American Indian Religious Freedom Act in 1994 to deal with the religious use of peyote.
As a result, lawyers representing Native peoples who want to legally protect their sacred sites from destruction are forced to resort to a patchwork of other statutes, such as the Native American Graves Protection and Repatriation Act and the National Historic Preservation Act, which inadequately address issues specific to sacred sites. The National Trust for Historic Preservation has named Oak Flat one of the nation’s 11 most endangered historic places, but that hasn’t stopped Congress from selling it off.
Lawyers who work on the issue seem to agree that, if they had been successful, McCain’s amendment or those that followed it would have effectively protected Native sacred sites on federal lands -- including Oak Flat.
The Resolution Copper Mine
So why is McCain now so willing to sell out Oak Flat?
The answer lies deep beneath the Tonto National Forest, site of one of the world’s largest deposits of copper ore -- a metal essential to modern life and industry. Mining interests staked claims to the area as early as 1917. But President Dwight Eisenhower issued an executive order in 1955 removing 760 acres of the forest, including Oak Flat, from consideration for mining activities, in recognition of the area’s natural and cultural value.
Resolution Copper Mining, owned 55 percent by Rio Tinto and 45 percent by BHP Billiton, has been lobbying Congress to enact legislation reopening the area to mining since 2005. Rio Tinto spent $800,000 lobbying Congress in 2014 alone. In the same year, BHP Billiton spent $540,000 lobbying Congress. The two companies had for years been unsuccessful in getting the land exchange legislation passed, but still spent over $1.2 billion building tunnels and preparing for the project and hired San Carlos Apache members to try to sell the project to the Native community.
But in the waning days of the 113th Congress, Sens. McCain and Flake added a rider to the must-pass National Defense Authorization Act that opened 2,400 acres of the Tonto National Forest to mining -- including the formerly protected land -- in exchange for 5,300 acres owned by Resolution Copper in various locations throughout Arizona that will be placed under federal stewardship. Resolution Copper has started an environmental review of the federal land as required under the National Environmental Policy Act -- but the findings of that study will not be enforceable once the company takes ownership of the land.
McCain attempted to justify the deal, which was tucked into a seemingly unrelated bill, by explaining that copper, the metal second-most utilized by the military, is essential to "maintain the strength of the most technologically-advanced military in the world."
McCain, Flake and Resolution Copper have lauded the mine, which they claim will provide 3,700 jobs and $61 billion in economic value over its lifetime, as a boon to the town of Superior and the nearby San Carlos Apache Nation, where jobs are few and far between and capital investment is scarce. "[Resolution Copper] has already pledged to hire thousands of local Arizonans and members of the nearby San Carlos Apache Tribe, where unemployment stands around 70 percent," McCain said in a press release.
However, critics have suggested other motivations for the senators' actions: McCain was the top recipient of Rio Tinto campaign contributions in 2014, according to records compiled by the Center for Responsive Politics. And Flake is a former lobbyist whose clients included a mining company in which Rio Tinto held a majority stake. He has also been a big recipient of campaign funds from mining companies, hauling in $221,102 over his career.
McCain claims there is no contradiction between his past support for protecting Native religious freedom and his work to surrender Oak Flat to mining. He says his stance on sacred sites hasn’t changed. "The truth is, this land exchange legislation was a bipartisan compromise arrived at after a decade of debate and public testimony in Congress. It does not involve any tribal land or federally-designated 'sacred sites,'" McCain said in a press release in June responding to criticism of the deal.
What has changed, according to McCain, is the designation of Oak Flat as a sacred site. He claims that the site was not considered sacred until recently, an argument that a group of dissenters from the San Carlos Apache Nation have made as well. In response to questions from The Huffington Post, McCain spokesman Brian Rogers cited a recent op-ed from Dale Miles, a former San Carlos Apache tribal historian, that claims that it "wasn’t until recent years that the site of Oak Flat was called sacred in any kind of way."
"There has not been a long history of ceremonial or cultural activities such as Sunrise or Holy Ground ceremonies taking place at Oak Flat," Miles wrote. "From my personal perspective, the thought of having such a ceremony at Oak Flat, far from the support of relatives, clan members and friends in the San Carlos tribal area is almost unthinkable."
The San Carlos Apache Nation government and activists from the Apache Stronghold, the group that has led the occupation and protests to save Oak Flat, beg to differ.
"It always has been told for generations -- and it is embedded in our way -- that this place has been holy and sacred," Wendsler Nosie, San Carlos Apache Nation council member and organizer of the Apache Stronghold, told HuffPost. "Now we are standing up for our rights and standing up to go back."
"The people have always held dances and healing ceremonies, and gathered food, medicinal plants, and many other healing items there. To this day some of us go to some of the holy places within Oak Flat area for prayer and healing," the San Carlos Apache Elders Cultural Advisory Council wrote in a memo to San Carlos Apache Nation Chairman, Terry Rambler, in 2011. "Many of our sacred and holy sites throughout our traditional Apache country have been destroyed or damaged already, and many more are threatened. We want all of them protected and respected."
The tribe has been working on an ethnographic and ethnohistorical report with Anthropological Research LLC, an independent firm hired by the Tonto National Forest, that is due out in October. Rambler said the report will include definitive documentation of oral histories from tribal elders and spiritual leaders proving that Oak Flat is indeed a sacred site. "That document will speak for itself," Rambler said. "That is the document that we’ve been patiently waiting for, but it’s taking a long time."
Carrie Templin, spokeswoman for the Tonto National Forest, confirmed in an email that Anthropological Research LLC will soon submit a final draft of the study for administrative review and distribution to tribal members.
However, the Forest Service will likely have to comply with the law as written, regardless of what the forthcoming report finds about Oak Flat. "The U.S. Forest Service is prepared to follow the laws passed by Congress in all matters, to include the case of Oak Flat," John Haynes, national press officer of the Forest Service, said in an email.
As it stands, a new act of Congress, such as Grijalva’s Save Oak Flat Act, which would repeal the land-exchange provision of the 2015 National Defense Authorization Act, remains the Apaches’ best shot.
Who Decides?
Oak Flat -- a place animated by history, ceremony and controversy -- is undoubtedly special. But as advocates for its protection point out, there is no Bible, Quran or Torah to definitively ordain this place as holy land. Instead, the Apache rely on an oral history, which has given way to conflicting accounts of whether and for how long the area has been considered sacred.
The forthcoming report from the San Carlos Apache and the Tonto National Forest will seek to resolve this debate. However, the situation poses the question of who gets to decide whether Oak Flat, or any Native place, is sacred -- John McCain and the former San Carlos historian, or San Carlos Apache tribal government and the elders and protesters who have been fighting to preserve this land?
That lingering question has ignited a national controversy and reopened complicated and long-unresolved questions about religion, law and authority.
"Unfortunately, Congress has never enacted a statute amending the American Indian Religious Freedom Act," said Reid Chambers, the attorney who testified at McCain’s hearing 26 years ago. "I wish that some bill -- like the McCain bill -- would have been enacted. I think we’d be better off if it had been."
CORRECTION: A previous version of this article had an incorrect name for the National Environmental Policy Act.