Redthought.org Presents a New Event on the Apache Oak Flat Case, Showing “Christian discovery” Doctrine at Work in US Law
COMING SOON: Redthought.org will focus on Apache Stronghold v. US, a court challenge brought to prevent the US government from taking Apache lands at Oak Flat and turning them over to Resolution Copper, a multi-national mining company.
On February 5, 2021, the US Justice Department filed an opposition brief saying the Apache have no rights to their ancestral lands and therefore no right to an injunction. The Department based its argument on the doctrine of Christian discovery. It cited the 1955 Supreme Court case of Tee-Hit-Ton Indians v. US, which said Native peoples don’t own their lands but only have “a right of occupancy” that the US can terminate at any time. The US attorneys told the court the US has title to Apache lands at Oak Flat and that Congress can transfer the lands to the copper mining company.
On February 12, 2021, the District Court judge agreed with the Justice Department and denied the Apache injunction. He said the US can “extinguish” the Apache “right of occupancy” whenever it wants, “whether it be done by treaty, by the sword, by purchase, by the exercise of complete dominion adverse to the right of occupancy, or otherwise.” He also said, “Plenary authority over the tribal relations of the Indians has been exercised by Congress from the beginning.”
The “beginning” the judge was referring to is the 1823 US Supreme Court case of Johnson v. McIntosh, which defined the so-called “right of discovery” as the right of Christian colonizers to “take possession, notwithstanding the occupancy of the natives, who were heathens.”
In 2014, the doctrine of Christian Discovery was heavily criticized by a United Nations study, which said, “The Doctrine of Discovery … has been used as a framework for justification to dehumanize, exploit, enslave and subjugate indigenous peoples and dispossess them of their most basic rights, laws, spirituality, worldviews and governance and their lands and resources.” The study concluded that the doctrine was “ultimately …the very foundation of genocide.”
On March 24, 2021, Navajo Supreme Court Chief Justice Herb Yazzie wrote a guest column in the Navajo Times, titled, “Renounce Racist Christian Discovery Doctrine.” He pointed out that “the U.S. government has historically dominated and controlled the use of Diné Bikéyah [Navajoland] through its claim of possessing ‘trust title’ and that its Congress has exclusive ‘plenary power’ to regulate and dispose of this land as it wishes, regardless of the Diné, the original sovereign.”
The upcoming Apache Stronghold course will add to the Redthought.org library of legal study materials. Redthought.org presented a course on the Johnson case on October 12, 2020 (recording available at https://redthought.org/courses-page/course/johnson-v-mintosh) as part of a study of the foundation cases in US “federal Indian law.” Viewing these earlier presentations will enhance but is not necessary to understanding the Apache Stronghold presentation.