Saved by the (9th Circuit) Bell

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By Professor Victoria Sutton

May 26, 2025

Guest Opinion. The Oak Flat sacred site, or Chíʼchil Bił Dagoteel in the Apache language, is the property at issue in a case that has not yet been granted certiorari by the U.S. Supreme Court this term (distributed to the Assoc. Justices of the Supreme Court for conference on May 22, 2025).

Legal approaches to protecting the site have been used, including designation as a protected site under the Antiquities Act of 1906, Environmental Impact Statements, the National Heritage Protection Site designation, and political appeals. Its fate has been heard by the federal district court, the Ninth Circuit and a Ninth Circuit en banc panel, yet its glaringly “absurd” result persists as law. Now that nonsensical string of opinions using mangled First Amendment jurisprudence to try to justify case rules, it begins to feel like Alice in Wonderland and the Queen’s trial. The actions of a U.S. senator long gone, threaten to permanently destroy a sacred site held as part of the origin story of the San Carlos Apache Nation, and other Native Nations in the region.

The federal legal remedy for this temporary need to stop permanent and “irreparable harm” requires the court to find the facts of the case meet a standard for injunctive relief for a temporary injunction, which they did. As the Ninth Circuit lays out in their opinion, they require this legal standard for an injunction:

A. Injunction Standard A party seeking injunctive relief must show that: (1) it is likely to succeed on the merits; (2) it is likely to suffer irreparable harm in the absence of injunctive relief; (3) the balance of equities tips in its favor; and (4) an injunction is in the public interest. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). 

What should the U.S. Supreme Court do in this Petition?

The Supremes should definitely take this case and take the opportunity to create a new test for First Amendment cases of religious freedom that are rights held by Native Nations and the special trust relationship that exists between the U.S. government and Indian Tribes. This was similarly done for corporations and the First Amendment test for Free Speech. The test for the First Amendment did not fit “commercial speech,” so the Court fashioned a new case called the “Hudson test,” which fit the unique needs of commercial speech by corporations. So, too, there is an even stronger case to fashion a new test for the First Amendment, Religion Clauses, to encompass the rights of Native Nations due to their sovereign status and their unique relationship to the federal government. These are First Amendment rights that apply to other than individuals. In the case of corporations, it is a legal organization created by the state and given the status of an “individual;” whereas Indian Tribes are sovereign nations that existed before the United States, and that sovereignty is still recognized, though in a more compromised status as a “domestic, dependent nation.” With that, a trust responsibility is created with the U.S. as trustee for the best interests of the Indian Tribe. Thus, an even stronger argument exists for a special test to protect these First Amendment, religious clauses, rights of Indian Tribes.

The new First Amendment test for freedom of religion for Indian Tribes involving real property, might first start with sovereignty of Tribes. This rule would be narrowly tailored to First Amendment questions involving real property. It is this category that has never successfully been found to be protected by the First Amendment freedom of religion right, even when the site was imploded and no longer existed.

The first question might be: Is this religious freedom important to the self-determination and continuity of the tribe’s governance? If the answer is yes, the next question might replace the “absurd” results of the burden test, with the question: Can the Indian Tribe continue to practice its traditions, ceremonies and stewardship of the real property and not deface, destroy or demolish its existing ecological character? If the answer is no, then the offending practice (e.g., mining, timber harvesting, roadbuilding) must find alternative means or cease.

Is a private deal between a Senator and a foreign corporatioin illegal?

The short answer is, no.

A “private bill” is defined by Congressional practice rules:

Besides the existing law being bad law, the policy for the deal was a bad one, and is a private deal between Congress and a company owned and controlled by the Chinese government.

However, it is not illegal.

The Bad McCain “Bargain”

Let me start by saying some of Sen. McCain’s work has been good for Indian Country (the American Indian Religious Freedom Act of 1978); and some has been harmful (Rio Tinto deal). As a Senator of Arizona, he had a lot of diverse and often conflicting interests to serve and so political winds had their effect.

That said, one of the last visits Sen. McCain made to Indian Country in August 2015 resulted in him being shunned and chased away because of this corrupt and harmful “deal” he struck with an unscrupulous mining company with a majority interest held by the Chinese government.

Sen. McCain moved mountains to make a private deal with a Chinese-owned mining company to take U.S. copper with absolutely no agreement that ANY of it would stay in the United States. The deal in itself is a poor one, so one has to wonder why did Sen. McCain try so hard to make a bad deal for Arizona that would employ less than 200 employees with no guarantee any of the minerals would be used by America?

While there is no evidence of bribery, one is likely to recall that McCain is no stranger to bribery deals. He is famously one of the Keating Five, who was caught on camera in a bribery negotiation, but was ultimately cleared for having a “minimal” role and having “poor judgment.” So being unethical here is like being just a bit pregnant— yet, either you are, or you aren’t.

McCain was the top recipient of Rio Tinto campaign contributions in 2014, according to records compiled by the Center for Responsive Politics.

As for his effort to do away with an Environmental Impact Statement for this deal by requiring one, but then directing that the land transfer automatically to Rio Tinto at its final publication regardless of its findings. McCain is no stranger to changing the Endangered Species Act, too, to allow development to proceed. He did so through an Act of Congress to get around it for a pet project. He famously pushed through legislation making the Mt. Graham telescope project exempt from considering environmental impacts to endangered species like the Mt. Graham Red Squirrel protected by the Endangered Species Act. The legislation opened the door to building the giant observatory and telescope, on Mount Graham, also known as Dzil Nchaa Si An to Western Apache Nations (again, on sacred land) in Arizona.

Unintended consequences

If the Trump Administration allows this EIS to be final, and they transfer the land to Rio Tinto, the unintended consequences will be assisting Sen. McCain (from the grave) in concluding his private deal legislation.

Making this deal even less lucrative, is one of the largest copper deposits discovered in 30 years in Argentina this spring. Just a year ago, geologists lamented that no major copper deposit had been found in a long time; and now, using artificial intelligence to map potential deposits, a major one has been discovered.

To read more articles by Professor Sutton go to:  https://profvictoria.substack.com/ 

Professor Victoria Sutton (Lumbee) is a law professor on the faculty of Texas Tech University. In 2005, Sutton became a founding member of the National Congress of American Indians, Policy Advisory Board to the NCAI Policy Center, positioning the Native American community to act and lead on policy issues affecting Indigenous communities in the United States.