Oak Flat and Pope Alexander VI’s Papal Decree of Domination in U.S. Law

Traditional Apache Religious ‘Changing Woman’ Sunrise Dance Ceremony at Chi’Chil Bildagoteel (“Oak Flat”). (Photograph with family permission. (c) Robin Silver Photography).

Steven Newcomb (Shawnee/Lenape)

Prior to the invasion of this continent (“North America”) by representatives of the monarchs of Western Christendom, the original nations and peoples of the continent, such as the Apache, were living their own free and independent way of life.

We can think back on the thousands of years during which no Christian European system of domination was existing on this continent. For millennia no such system was being imposed on the original nations and peoples, as, for example, the Apache, who are now trying to save their sacred area “Oak Flat” from being destroyed by a massive copper mining project.

There is a specific context for every major conflict, including the dispute over Oak Flat, between the original nations and peoples of this continent and the society of the United States. That context is found in the contrast between the original free and independent existence of Native nations and the system of domination that, centuries ago, was first carried by ship across the Atlantic Ocean to this part of the world.

That system of domination’s premises were formally articulated as part of U.S. law in Johnson & Graham’s Lessee v. McIntosh in 1823. They were restated in more “polite” language by Associate Justice Ruth Bader Ginsberg as recently as 2005, by the Ninth Circuit Court of Appeals in 2014, and covertly by Justice Gorsuch in the McGirt v. Oklahoma ruling in 2019.

These premises include the claim made by Chief Justice John Marshall that the mere presence of a “Christian people” on this side of the Atlantic Ocean “necessarily diminished” the original free existence of the “heathen” nations and peoples already living here. The premises include the claim that the “discoverers” had the right to mentally assign to themselves an “unlimited independence” on the continent, and then assert that “discovery” had given them “unlimited independence.” On that basis, they assumed a right of domination over all of our original nations.

These premises are being relied upon today by those advocating the destruction of “Oak Flat.” This conflict involves either accepting or rejecting the resulting system of domination and its basic premises. These ideas are traced to various documents (e.g., Vatican papal bulls issued by Catholic popes, or royal charters issued by monarchs) that were created in Western Europe, which was then known as “Western Christendom.”

Associate Justice Joseph Story, who served on the U.S. Supreme Court from 1812 until his death in 1845, drew a direct connection between the origin of the legal and political system of the United States and a Vatican papal bull of domination from 1493. He did so in Volume I of his 1833 Commentaries on the Constitution of the United States. Story titled his first chapter “Origin and Title to Territory of the Colonies.” He began with the first voyage of Columbus, and he also quotes Latin language from a papal bull that was issued by Pope Alexander VI to the king and queen of Spain in 1493.

In that first chapter, Story is paraphrasing a Supreme Court ruling that he helped to decide in 1823, Johnson & Graham’s Lessee v. McIntosh. That decision was written by his best friend and mentor, Chief Justice John Marshall. For example, Story writes: “The Indians were a savage race, sunk in the depths of ignorance and heathenism. If they might not be extirpated for their want of religion and just morals, they might be reclaimed from their errors.” Story continues:

They [the Indians] were bound to yield to the superior genius of Europe, and in exchanging their wild and debasing habits for civilization and Christianity they were deemed to gain more than an equivalent for every sacrifice and suffering.

That wording was Story’s way of paraphrasing Marshall’s statement in the Johnson ruling that the “character and religion” of the continent’s “inhabitants afforded an apology for considering them as a people over whom the superior genius of Europe might claim an ascendancy.”

The definition of “ascendancy” in Webster’s Third New International Dictionary includes the word “domination.” This fact enables us to accurately translate the idea being put forward by both Story and Marshall: The Christian European colonizers were able to utilize their “superior genius” to claim a right of domination against the original Native inhabitants of the continent, on the basis of their “character and religion” (Story called their religion “heathenism”). Story continues:

The Papal authority, too, was brought in aid of these great designs; and for the purpose of overthrowing heathenism, and propagating the Catholic religion,7 Alexander the Sixth, by a Bull issued in 1493, granted to the crown of Castile the whole of the immense territory then discovered, or to be discovered, between the poles, so far as it was not then possessed by any Christian prince.8 [footnotes 7 and 8 in the original text]

At footnote 7 Story wrote: “‘Ut fides Catholica, et Christiana Religio nostris praesertim temporibus exaltetur, etc., ac barbarae nationes deprimantur, et ad fidem ipsam reducantur,’ is the language of the Bull. 1 Haz. Coll. 3.” The quote is from the Latin language version of Pope Alexander’s document. The phrase “ac barbarae nationes deprimantur” means “and barbarous nations be reduced,” meaning “subjugated” or “dominated.” Footnote 8 also traces to the Latin language of the papal bull of 1493. And that completes section 5 (§5).

Story opens section 6 as follows: “§ 6. The principle, then, that discovery gave title to the government, by whose subjects or by whose authority it was made, against all other European governments, being once established…” (italics added). The word “then” refers back to Pope Alexander VI’s papal bull of May 4, 1493, and the next twenty-two words, which I’ve italicized, Story lifted verbatim directly from the Johnson v. McIntosh ruling.

In the Johnson ruling, Marshall used those twenty two words to express what he identified as a “principle” of “discovery.” “This principle was that, discovery gave title to the government, by whose subjects or by whose authority it was made, against all other European governments.” (italics added) Story put no quotation marks around those twenty-two words, and he did not include any reference to let the reader know that those words were a quote from the Johnson ruling.

Nonetheless, the linkage between section 5 and section 6 of Story’s Commentaries, is Justice Story’s admission of a direct connection between the language of domination from the Vatican papal bull and the language of domination from the Johnson ruling. That language, and overall system of domination it constitutes, is the context for today’s dispute over the Apache sacred area known as “Oak Flat.”

Why is the United States government regarded as having the ultimate right to decide what will happen to Oak Flat, which is sacred to the Apache? Because, based on the claim of a right of domination found in the papal bulls and woven into the Johnson ruling, the United States claims to have an ultimate right of Christian domination in relation to the supposed “heathenism” of the Apache nation with regard to Oak Flat. From the viewpoint of the United States, its political succession to the claim of a right of Christian and Catholic domination over the land is regarded as negating whatever spiritual views or traditions the Apache have in relation to Oak Flat.

Steven Newcomb (Shawnee, Lenape) is the co-founder and director of the Indigenous Law Institute, and author of Pagans in the Promised Land: Decoding the Doctrine of Christian Discovery (Fulcrum, 2008). He co-produced the documentary movie “The Doctrine of Discovery: Unmasking the Domination Code” (2015), which is based on Pagans and his four decades of research.