First Possession and Tribal Traditions

Western Apache Natives know the land at Oak Flat, also known as Chi’chil Biłdagoteel, in Phoenix, Arizona as part of their home. The natives have used the land for centuries to conduct ceremonies, which are part of their religious and tribal belief that are tied specifically to Oak Flat. The problem that comes from Oak Flat is that the land is situated on top of a massive deposit of copper, around 20 million tons of it valued at around $200 billion. In 1955, President Eisenhower closed off all mining operations on Oak Flat, which was later reaffirmed in 1971, and since then, the area has been used by the tribe and other ancestors with the guarantee that their rights to the land would not be intruded upon.

Resolution Copper is a partnership between two mining companies, Rio Tinto and BHP, interested in the financial aspect of obtaining the copper underneath the native land, to transition it into renewable energy. In 2025, the Trump Administration granted permission to Resolution Copper to conduct mining at Oak Flat through a process called “block cave mining.” The process destroys the land underneath the surface so eventually it collapses upon itself, creating a vast crater, inevitably destroying the land the Western Apache had connected themselves to for generations. Resolution Copper stands to gain financially through the copper deposit, and the Western Apache stand to lose their connection to their ancestors, their religious and tribal beliefs, and their physical land. The Supreme Court has denied rehearing of this case on three separate occasions.

While courts have thus far applied the Religious Freedom Restoration Act (RFRA), we can nevertheless get a better understanding by looking at the land seizure through the lens of the rule of capture, based on the doctrine of first possession, as outlined in the 1805 case Pierson v. Post. Pierson is a New York Court of Appeals case, which announced the rule of capture for possession rights of wild animals. There, a hunter named Post was actively pursuing a fox, but another person killed it despite knowing the hunter was in pursuit. The court outlined three elements that would become essential to the rule of capture: “[1] manifest[ing] an unequivocal intention of appropriating the animal to his individual use, [2] depriv[ing the animal] of its natural liberty, and [3] br[inging the animal] under certain control.” The court held that the pursuit of the fox did not grant Post ownership because he never deprived the fox of its natural liberty, nor did he bring the fox under his certain control. All Post did was chase after the fox, but to gain possession of a wild animal, one must physically bring it under one’s control.

The rule of capture provides insight into resolving the dispute between the Western Apache Natives and Resolution Copper. Under Pierson v. Post, ownership under the rule of capture requires manifestation of intention, deprivation of natural liberty, and bringing under certain control. First, the Western Apache had an unequivocal intention of appropriating the land for their individual use. The Western Apache used Oak Flat for expressing their beliefs or having a connection to their ancestral history for a long period of time. They physically used and inhabited Oak Flat, which is considered central to their ancestral DNA. However, Resolution Copper has that same unequivocal intention of appropriating the land for individual use because they intend to drill into the land to extract copper for financial motives.

Second, the rule of capture requires depriving a thing of its natural liberty. The Western Apache limited Oak Flat of its natural liberty by continuously dedicating the land to ceremonial use, whereas they never actually destroyed the land or deprived the area. They have relied upon the Oak Flat to perform their religious and tribal ceremonies, but not only have they reserved that right to this tract of land, but the land is also specifically connected to their tribe’s history. For Resolution Copper, they would not satisfy this element on the simple grounds that they have not been able to start the extraction process for the copper because of injunctions and Supreme Court filings.

Third, a person must bring the thing within certain control. The Western Apache brought Oak Flat under their certain control because they have inhabited and used the tract of land for centuries. However, Resolution Copper has not satisfied this element of the rule of capture because they have yet to be granted the land transfer. Under Pierson v. Post, the Western Apache Natives would be granted possession of Oak Flat, and the land transfer to Resolution Copper would be denied.

Pierson justifies its rule giving ownership to the first possessor through the ideas of avoiding disputes and creating stability of ownership because it provides a clear and concise legal standard in possession of wild animals. The Western Apache have had stable ownership of Oak Flat for centuries through the doctrine of first possession, and allowing them to continuously possess the land would avoid the unnecessary dispute with Resolution Copper, but would also create a baseline for future disputes regarding native land. Pierson rejected the industry custom of pursuit after an animal gave the hunter possession. This rejection of industry custom would similarly reject the bids of Resolution Copper because it’s just like the mere pursuit of the fox in Pierson. Under Pierson, Resolution Copper’s interest in Oak Flat remains nothing more than a hot pursuit to strip native land of its natural resources, while the Western Apache’s interest reflects a true first possession.

Aidan Lieberman is a student at the American University Washington College of Law.

Image: SinaguaWiki, EliasButler-OakFlat-2021-wiki.