The woman gestures to the meadow in front of us in a place the Apache call Chi’chil Bildagoteel, or Oak Flat. She explains that for generations spanning 1,500 years, Apache women have come here to perform the sunrise ceremony — a coming of age ritual that marks a girl’s transition to womanhood. Part of the ceremony involves painting the girl with white clay taken from the earth, symbolic of molding her into the woman she will become. When her eyes are wiped clean, she is a new woman, forever imprinted with the spirit of Oak Flat. The woman accompanying us stoops to the ground and scoops the Arizona earth in her hand. “If the government allows the copper mine project to move forward,” she explains, “all of this will be destroyed, and lost to my people forever.” As she opens her palm, I watch the dust disappear in the wind, just like the Apache fear this place will vanish.

My first trip to Oak Flat to learn about the plight of the Apache people was in 2015, shortly after the federal government decided it would give this place to Resolution Copper, a foreign-owned mining company. Today, Oak Flat is truly on the brink of destruction. In a matter of months, the Forest Service could transfer control over this sacred site, allowing the mining project to move forward. Resolution Copper plans to build a crater nearly two miles wide and over 1,100 feet deep, swallowing this hallowed land, placed under federal protection by President Dwight D. Eisenhower. 

Our religious freedom laws should allow the Native people to bring a claim and to deny that would lead to a troubling double standard.

Earlier this year, the 9th Circuit Court of Appeals held a rare 11-judge “en banc” hearing to decide whether the mining project should move forward. I argued before the court that our religious freedom laws should allow the Native people to bring a claim that their rights are being burdened. And to deny that would lead to a troubling double standard in our law.

The ongoing fight to protect Oak Flat represents many things to many people. One thing it represents to me is our Constitution’s vision of pluralism. Over the course of the lawsuit, a broad coalition of faith groups have defended this space sacred to the Apache. They include Seventh-day Adventists, the Islam & Religious Freedom Action Team of the Religious Freedom Institute, the Christian Legal Society, the Mennonite Church USA, the Sikh Coalition, the Jewish Coalition for Religious Liberty, Becket, the Notre Dame Religious Liberty Initiative that I direct, and The Church of Jesus Christ of Latter-day Saints. These groups understand that Oak Flat is just as important to Apache religious exercise as the Vatican is for Catholics, the Western Wall for Jews, Mecca for Muslims or Angkor Wat for Buddhists and Hindus. Though these groups do not share the beliefs of the Apache people, they have a mutual understanding of our nation’s constitutional commitment to protecting everyone’s rights.

This shared belief is at the core of a functioning pluralistic democracy: The idea that we protect the rights of others, whether or not we share those common interests, even if we disagree. This is what allows a constitutional democracy to thrive.

Our Constitution creates a framework to protect the rights and the ability of everyone to live his or her life peacefully, alongside other people who hold different beliefs. When we step back and think about it, this was truly an astonishing idea. England had just escaped a century of religious war; Europe was boiling with conflicts between ethnic, religious and cultural factions. The belief that a new republic could develop between people of different ancestries, cultures and beliefs must have been laughable to many. But the founders were determined — so determined that this belief in the possibility of pluralism became the foundation of the Constitution.

The ongoing fight to protect Oak Flat represents many things to many people. One thing it represents to me is our Constitution’s vision of pluralism.

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I worry that this principle is being threatened with the rise of polarization and tribalism: the idea that those who are different should be at best ignored and at worst treated as “other.” One recent study found that in the U.S. polarization has increased more dramatically since the late 1970s than in eight other countries examined. The rise of an “us versus them” mindset is evident from outright civil unrest and riots to the decline in Americans’ willingness to marry someone from the opposing political party.

The diverse groundswell of support for Oak Flat stands in welcome opposition to this trend. Despite deep rifts in our culture, there is reason to hope that beneath those rifts is solid ground: a shared commitment to freedom and flourishing for ourselves and our neighbors. All of this might begin simply, like my journey did, with a conversation between people seeking to understand what is important to others and why. When others’ beliefs and priorities look different from our own, these conversations are more important than ever.  

Stephanie Barclay is a professor of law and director of the Religious Liberty Initiative at Notre Dame University.

This story appears in the July/August issue of Deseret Magazine. Learn more about how to subscribe.

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