By Steven Newcomb (Shawnee/Lenape)
The Apache Stronghold case, regarding the Apache Sacred Site (Chi’ Chil Bildagoteel) called “Oak Flat,” is now before the Ninth Circuit Court of Appeals. The case has created global publicity, and a number of Christian church groups have filed amicus curiae (“friend of the court”) briefs. Those briefs support the Apache peoples’ right to defend their sacred lands, ceremonies, and way of life.
The main argument being made is that the Apaches’ right and freedom to engage in their spiritual traditions at a place on their traditional lands that is deeply sacred to them is about to be destroyed. The Apache people will be irrevocably harmed if their sacred area is destroyed by a corporate effort to accumulate more profit with a proposed copper mining project.
Oak Flat is now threatened by a proposal for a copper mine that will obliterate, by wiping from the face of the planet, the entire existence of that sacred area, by carving it out of the ground. If the project is allowed to go through, it will leave a massive hole one thousand feet deep and two miles wide in the earth where the sacred area is now located.
I find it positive but ironic that Christian church groups are advocating on behalf of the Apache sacred area. It is ironic because the Ninth Circuit Court of Appeals will be using a Christian-premised reasoning process of domination that is dehumanizing and racist, and based on the mental categories “heathens” and “infidels.” This reasoning process, which is hundreds of years old, regards non-Christians as “enemies” of the world of Christendom.
Let’s begin by examining the premise of the bigoted reasoning process that the Ninth Circuit Court of Appeals will be applying to the Oak Flat case. That premise begins with the belief that the political powers (“the sovereigns”) of the Christian world, and the later successors of those political powers (such as the United States), have a fundamental right to engage in patterns of domination against those peoples the Christian world historically labeled as “heathens” and “infidels.”
Accordingly, if those political powers believe it is necessary to destroy the traditions and ceremonial areas of so-called heathens and infidels because such destruction will benefit “human and Christian civilization [domination],” then so be it. Their sacrifice and suffering is deemed necessary for the greater good of “human society.” After all, it is a long standing tradition of Christendom to regard “heathen” and “infidel” non-Christians as also being “barbarous” and thus not part of the category “human.”
The plain truth of the matter is that the political and legal system of the United States is premised on its claim of a right of Christian domination against Native nations and peoples, such as the Apache. This is based in part on an assertion made in the Johnson v. McIntosh ruling of 1823, that a “Christian people” (in the words of Chief Justice Marshall) has a “superior genius” that the “Christian people” are entitled to mentally impose on “natives, who were heathens” (in Marshall’s words).
Using the “character and religion” of the continents’ Native inhabitants as a justification, the “superior genius of Europe” could and did “claim a right of ascendancy,” meaning a right of domination over the Native inhabitants. The claim of a right of domination by a “Christian people” over “heathen” non-Christians is still regarded as the “Supreme Law of the Land” in the United States to this day. This is because the domination reasoning contained in Johnson v. McIntosh is still being actively being used by the U.S. courts, including the U.S. Supreme Court.
That form of reasoning will be the basis of the Ninth Circuit Court’s decision in the Oak Flat case for the simple reason that those concepts of Christian domination are foundational to the entire U.S. federal Indian law system, a system which is also traced to the Latin words and ideas of domination found in the Vatican papal bulls of the fifteenth-century and royal charters of England.
As difficult as it may be to believe, it is an inescapable fact that the Ninth Circuit Court will deploy those categories and that kind of domination reasoning toward the Apache and Oak Flat, even if none of those specific words are used. That pattern of reasoning, no matter how wrongful it may seem from today’s viewpoint, will be contained in the reasoning of the judicial precedents that the Ninth Circuit Court will cite and apply to its present day reasoning process.
As the Ninth Circuit Court deliberates on the Oak Flat case, it will continue to prevent our original free and independent nations from living a free existence by relying on the US claim of a right of Christian domination in U.S. law. No matter how cleverly it is kept hidden, this is the mental context framework within which the Oak Flat case is being addressed by the U.S. court system.
The Ninth Circuit Court of Appeals has already demonstrated its willingness to apply the domination reasoning process toward the Kumeyaay Nation. It did so in a 2014 ancestral remains case, White v. University of California. In footnote 2 of its decision, the court cited to both Tee-Hit-Ton Indians v. United States (1955) and Johnson v. McIntosh (1823). The content of that footnote along with the court’s citation of the Johnson ruling make it evident that the Ninth Circuit Court was using a reasoning process based on the claim of a right of Christian domination. Footnote 2 in White v. University of California reads:
“Aboriginal interest in land generally is described as a tribe’s right to occupy the land. It is not a property right, but amounts to a right of occupancy which the sovereign grants and protects against intrusion by third parties. Tee–Hit–Ton Indians v. United States, 348 U.S. 272, 279 (1955).”
The phrase “the sovereign” translates to “the dominator” (dominor in Latin). According to the overall mental rules of the domination system, the Dominator (“sovereign”) “grants” the Indians a mere “right of occupancy” that does not included any power of dominion. That language means it is up to the United States as the Dominator (“sovereign”) to decide what kind of rights, if any, it is willing to concede to the Indians in the mental world of the United States.
The U.S. government has decided that “Indians,” such as the Apache, are to be categorized as “tribes,” that, from the mental viewpoint of the United States, have no a right of “property” to the lands with which they have traditionally experienced a cultural and spiritual relationship for thousands of years.
The Dominator (“sovereign”) U.S. government refuses to accept the idea that any Indian nation or “tribe” may contradict the Dominator’s right of domination, otherwise known as “property.” The Dominator refuses to recognize the Indian “right of occupancy” that it has mentally imposed on Native nations and peoples as including a right of property.
Stated differently, the Dominator U.S. government refuses to recognize the present day successors of the “heathens and infidels,” such as the Apache, as having a right of domination in their traditional lands. The U.S. government does not want to concede to the “natives, who were [and perhaps still are] heathens,” the immense power contained in the concept of property, which is defined as “not the material object itself, but the right. . . [of] domination rightfully obtained over such object.” (Ballentine’s Law Dictionary, 1969) (emphasis added)
As Dominator, the United States has mentally invented the doctrine (an well accepted belief) that the U.S. will never recognize an Indian nation or “tribe” as possessing a right of domination (“property”) in and to its original Native lands and territory. The goal of the U.S. is to prevent any Native nation or people from ever being able to deploy a thought process that can successfully contradict the U.S. government’s claim of a right of Christian domination over and to those lands. In the Johnson ruling, Marshall called that claimed right of domination the “ultimate dominion” of the sovereign.
Who and what is “the sovereign?” The Ninth Circuit Court provides an answer with its reference to “the legal theory that discovery and conquest gave conquerors the right to own the land but did not disturb the tribe’s right to occupy it. See Johnson v. M’Intosh, 21 U.S. 8 Wheat 543, 588–91 (1823).” “The sovereign” is one of the “conquerors” (dominators), and “conquest” is, once again, domination.
When translated, the “theory” expressed by the Ninth Circuit Court becomes, “that discovery and domination gave the dominators the right to dominate the land but did not disturb the tribe’s right to occupy it.” This reasoning was also the basis of the U.S. government’s February 5, 2021 legal brief, in response to an Apache Stronghold request for a temporary injunction for the mining proposal at Oak Flat. We know this because in their brief the U.S. attorneys quoted that same wording from Tee Hit Ton Indians v. United States, which cites to Johnson v. McIntosh.
Justice Stanley Reed wrote the majority ruling in Tee Hit Ton Indians v. United States. In a dissenting opinion he penned eight years earlier, Reed revealed the fact that the Johnson ruling deploys a reasoning process about the right of domination (“sovereignty”) assumed to be held by “Christian nations” as soon as they locate (and invade) the lands of non-Christians.
In Alcea Band of Tillamooks v. United States (1946) Reed said in his dissent that the Johnson ruling put forth “the theory that discovery by Christian nations gave them sovereignty [domination] over and title to the lands discovered.” When the representatives of a Christian Dominator (dominorum Christianorum in Latin) locate lands not yet under Christian domination (dominio in Latin), the mental world of the Christian dominators immediately assumes control of the reality-construction process in that newly located geographical area.
The theory is that Christian nations, as self-declared Christian “sovereigns,” (dominorum or “dominators”) claimed a right of domination (“sovereignty”) over and to the lands of the Native nations. To put a finer point on the matter, we can quote Johnathon Havercroft in Captives of Sovereignty (2014), where Havercroft defines sovereignty as meaning “an unjust form of political domination that limits human freedom.”
Returning now to footnote 2 in White v. University of California, the Ninth Circuit Court cites to Tee Hit Ton Indians as its source for “the legal theory” that “discovery and conquest [domination] gave conquerors [dominators] the right to own the land.” The word “own” takes us to “owner,” which is defined in Ballentine’s Law Dictionary (1969) as “One who has complete dominion over particular property.”
In Ballentine’s this takes us to “ownership,” “The rights of an owner. Title to property. Dominion over property.” Property takes us to the definition provided by the eminent English jurist William Blackstone, “despotic dominion,” which is definitely domination. Imagine if the Christian groups that are advocating on behalf of the Apache had challenged in their amicus briefs the extraordinary claim embedded in U.S. law, that Christian Dominators have a fundamental right of Christian domination over the lands of heathens and infidels.
The question remains, where is the sense of outrage about the and religiously bigoted and racist reasoning process of Christian domination, based on the Bible, that is foundational to the entire political and legal system of the Dominator United States with regard to our Native nations and peoples? – Steven Newcomb