APACHE OAK FLAT: LAND IS THE REAL ISSUE
Trying to fit the roundness of Native Spirituality into the square box of US law didn't succeed: The need to engage the root issue — land ownership.
Apache Stronghold argued competently and forcefully to protect Oak Flat with US “religious freedom” laws.
The claim of US “ownership” of Oak Flat was central to the decisions against “religious freedom”.
This post looks at the claim that Oak Flat is “owned” by the United States.
1. Parsing “Land Ownership”
“Land-appropriation [is] the primeval act in founding law… the source of all further concrete order and all further law, …the reproductive root in the normative order of history.” {Carl Schmitt, 1950}
In the United States, federal anti-Indian law — arising from the appropriation of Native Peoples’ lands — is the “primeval act… the source… the reproductive root in the normative order…”
US Supreme Court Justice Joseph Story’s 1833 Commentaries on the Constitution of the United States made this precise point. As befits a “primeval act in founding law”, Story opened his tome with Book I, “History of the Colonies”, Chapter I, “Origin of the Title to Territory of the Colonies.”
Story traced the US claim of “title” to all lands of the continent — the act of “land appropriation” — from the English “right of discovery” proclaimed in Henry VII’s 1495 commission to John Cabot, which was “to subdue and take possession of any lands unoccupied by any Christian Power” — the doctrine of “Christian discovery”!
Story said this was “discussed at great length in the celebrated case of Johnson v. M’Intosh… more clear[ly] and exact[ly] than has ever been before in print.”
For people who imagine that “conquest” is the origin of the US title claim, Story emphasized:
“They claimed an absolute dominion over the whole territories afterwards occupied by them, not in virtue of any conquest of, or cession by, the Indian natives, but as a right acquired by discovery.”
Story elaborated:
“The title of the Indians was not treated as a right of propriety and dominion; but as a mere right of occupancy. As infidels, heathen, and savages, . . . [they] were not allowed to possess the prerogatives belonging to absolute, sovereign and independent nations.”
He concluded with the extraordinary statement that:
“[Native] territory . . . was, in respect to Christians, deemed, as if it were inhabited only by brute animals.”
Chief Justice Marshall himself described the Johnson decision as an “extravagant . . . pretension of converting the discovery of an inhabited country into conquest” [emphasis added].
In 1986, Professor Robert A. Williams, Jr., said this “extravagant” doctrine was “distilled from the heritage of Christian medieval legal mythology.” He added that, “once revealed, [the doctrine] will shame those who cite [it].”
The moment of shame has not yet arrived.
Twenty-first-century lawyers and courts at all levels cite the Marshall trilogy frequently, although the root word “Christian” is now usually redacted, as in the Oak Flat litigation.
2. The Trilogy of federal anti-Indian law doctrines of US “land appropriation”
Johnson v. McIntosh (1823): The doctrine that the US holds “title” to Native Peoples’ lands by virtue of “Christian discovery” (discussed by Joseph Story above)
This decision diminished all Native Peoples to “occupants” rather than owners of their lands. It underlies the US seizure of Apache lands.
Cherokee Nation v. Georgia (1831): The doctrine of US “trusteeship” over Native Peoples
The “trust” doctrine is a mask for the “title” claim and a red herring that distracts from the land appropriation itself.
Worcester v. Georgia (1832): The doctrine of US “ultimate right of domain” over Native Peoples and lands
The “ultimate domain” doctrine guts the notions of “Tribal sovereignty and property” even as it uses those phrases to mask the gutting.
3. A forensic report of “land ownership” in the litigation
1. District Court Judge Logan’s 2021 denial of an injunction for Apache Stronghold accepted the US claim of title to Apache ancestral lands at Oak Flat (Chi’chil Bildagoteel), starting in the very first paragraph1 :
“The Southeast Arizona Land Exchange and Conservation Act authorizes the exchange of land between the United States Government and two foreign mining companies. …The parcel of Arizona land which the Government will convey to Resolution Copper [is] located within the Tonto National Forest [and] includes a sacred Apache ceremonial ground called Chi’chil Bildagoteel, known in English as ‘Oak Flat.’”
Judge Logan cited two bases for the claim of US “title”:
First, the 1848 Treaty of Guadalupe Hidalgo between Mexico and the US:
“Mexico ceded the land at issue in this case to the United States via the Treaty of Guadalupe Hidalgo in 1848…. At that point, the United States took legal title to the land.”
Second, the doctrine of “Christian discovery” and its offspring, “plenary power”:
“As stated by Chief Justice Marshall in Johnson v. M'Intosh [1823],…’the exclusive right of the United States to extinguish’ Indian title has never been doubted. And 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, its justness is not open to inquiry in the courts.”
“Congress has plenary authority over the Indians and all their tribal relations, and full power to legislate concerning their tribal property.”
The two asserted bases collapse into one because the Mexican “cession” simply presumes that Mexico “owned” Apache lands and could transfer them to the US. But Mexico’s claim of title is identical to the US claim— the doctrine of “Christian discovery” — via the Spanish Crown.
2. The 9th Circuit panel made short work of the “ownership” issue, simply assuming US ownership and linking it to the “trust” doctrine 2:
Oak Flat [is] a plot of federal land in Arizona.
Apache Stronghold has not adduced evidence which establishes that the U.S. government implemented the Treaty of Santa Fe by designating any land or recognizing any title vested in the Apache. And without title vested in the Apache, there can be no trust relationship arising from the Treaty of Santa Fe and no trust obligations relating to “usufructuary rights.”
The dissent from the panel decision also assumed US ownership 3:
…Native Americans’ right of access to traditional religious sites on federal land…….depend[s] on the federal government for access to federal land.
3. The 9th Circuit en banc decision that fractured on “religious freedom” was unanimous on US “ownership”4:
Oak Flat [is] an area located on federally owned land within Tonto National Forest.
The government retains its right to use its resources according to its own preferences.
The Government …[has a] right to use what is, after all, its land.
The government’s nondiscriminatory use of its own property is not the type of action that gives rise to a cognizable burden on religious exercise.
The government isn’t discriminatorily “giving” its land to anyone but is instead trading the government-owned Oak Flat for other land owned by the mining company.
The land transfer here concerns the government’s management and alienation of its own land, which is no doubt part of its internal affairs.
The Government’s actions [involve] “publicly owned land”.
The en banc Dissent stated the “ownership” presumption this way:
As with the Western Apaches here, Native American religions are typically land-based, so many traditional Native American religious sites are located exclusively on federal land.
It is hard to see any reason in principle or practicality why the government should… not have to tailor its management of public lands [to conform to the diversity of religious belief]
4. Judge Logan’s 2025 grant of an injunction was a masterful tour through the wreckage of “religious freedom” law, but maintained the description of Oak Flat as “federally owned land”:
The Southeast Arizona Land Exchange and Conservation Act… dictates that a …parcel of federally owned land will be conveyed to Resolution Copper… The … parcel set to be transferred is located within the Tonto National Forest and includes a sacred Apache ceremonial ground called Chi’chil Bildagoteel, known in English as “Oak Flat.”
5. At the Supreme Court, Justices Gorsuch and Thomas stridently criticized the notion that “religious freedom” law doesn’t apply to “government property”… But they did not question the presumption that Oak Flat is US property:
Exactly nothing …in RFRA’s [Religious Freedom Restoration Act] text—hints that a different and more demanding standard applies when …the “disposition” of the government’s property is at issue.
4. The Apache argument: Raising the land question obliquely, not challenging US “ownership” explicitly; Using anti-Indian law doctrines in their argument that “religious freedom” laws apply to “government land”.
1. The Apache Complaint tied the land question to Treaty issues and the “trust” doctrine 5:
The government controls access to Oak Flat.
Oak Flat is within the vast area of land and property and the rights thereto reserved by the Apache Nations to themselves in their 1852 Treaty with the United States of America, commonly known as the “1852 Treaty of Santa Fe”.
The United States of America does not have the power and authority to transfer the Oak Flat land at issue in this case, and in fact has a trust responsibility and fiduciary duty……to protect Oak Flat from any harm, diminishment, waste, or loss.
2. The Apache Corrected Amended reply invoked “aboriginal title”, a rephrasing of federal anti-Indian law’s doctrine of “Indian title”6:
The Western Apaches still hold their aboriginal title to the land that contains … Oak Flat….
3. In District Court Oral Argument, Apache Stronghold reached for a deeper challenge to the US claim of a right of domination over Native Peoples and Lands, but were still entangled with anti-Indian “trust” and “aboriginal title” doctrines7:
…The only two issues before the Court for the purpose of the preliminary injunction hearing today, are the Treaty rights and the serious question of who owns that land, and the Religious Freedom Restoration Act rights that have been violated….
The trust relationship, the trust duty and responsibility… is a basic principle of constructive trust based on the behavior of the United States Government in usurping that land and based on the nature of the relationship per the law of the land in federal Indian law in America tracing back to Justice Marshall's opinion in Johnson v. McIntosh, whereby Indian nations are considered to be domestic dependent nations and essentially a ward of the United States….
One thing is for sure in this case, Western Apache aboriginal title to the area that includes Oak Flat has never ever been extinguished. It has never been given away by the Apaches, never yielded.
They came very close to attacking the US “ownership” claim, but ultimately didn’t follow it up:
…Whether or not you believe we've proved it's Apache land now, certainly the government has never proved it is theirs, or how much of an interest in it they have. Do they have a total fee interest? Nobody knows.
…If in fact the U.S. Government even owns any legal interest in that land, which we dispute and they certainly haven't proved.
The undeveloped aspect of these challenging words was revealed by a footnote in the 9th Circuit Panel decision:
Apache Stronghold may dispute the United States’ ownership of part of Tonto National Forest later in this litigation but does not do so in this appeal.
4. In 9th Circuit Oral Argument, the Apache did not challenge repeated presumptions of “government ownership” of Oak Flat as judges labored over religious freedom concepts of “substantial burden” and “compelling interest”. They continued to rely on federal anti-Indian doctrines of “trust” and “quasi-property”.
Examples:
Judge: “…you have government land….”
Apache: “same as in prison…” [invoking the Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”)]
Judge: “…any examples of RFRA or RLUIPA cases with use of government property?”
Apache: “…Comanche Nation, Oklahoma District Court”
Judge: “It’s the government land, but there going to give it over to somebody else that’s not the government….”
Apache: “If the government takes away a vested property right, that counts as a substantial burden.”
Judge: Who is [the property right] vested in?”
Apache: “There is a use right.”
Judge: “If we don’t adopt [the] argument that [the land] is held in ‘trust’, you think there’s still some other vested right?”
Apache: “I don’t think you have to rely on [trust], but there’s an executive order 130078 and FLPMA9 [Federal Land Policy Management Act].”
At one point the Apache walked away from an opportunity to hit at the roots of the “ownership” issue:
Judge: “Why does [the government] have to give them a piece of land?”
Apache: “They don’t have to give them a piece of land…. You need to figure out what the baseline is from which you’re judging the burden. …You could take the original baseline of this was Apache land and the government took it by force. Set that aside for a minute. The current baseline… [is] the Apaches have a right to go on to Oak Flat to access it and use it for their religious purposes. They’ve enjoyed that right by long custom. It is protected by executive order and statute.”
When I watched the Apache walk away from “the original baseline of this was Apache land and the government took it by force” I detected a fear of head-on challenge to “Christian discovery” roots of US land law. They “set that aside for a minute” and never came back.
US “ownership” of Oak Flat remained a pretext for convoluted discussions about “religious freedom” — intertwined with the anti-Indian law “trust” doctrine, which itself foundered on the shoals of numerous precedents holding that the “trusteeship” is in fact the US asserting its sovereign interest in the disposition of Native lands.
The Apache invoked their 1852 Treaty in response to a judge’s question:
Judge: “Is there a Treaty right…that bars the land exchange?”
Apache: “Yes…the 1852 Treaty made a promise to the Apaches to legislate for their prosperity and well-being on their territory. This is indisputably originally Apache land and destroying it violates the terms of that Treaty. …Taking away [even] a quasi-property right constitutes a substantial burden. We have at least that here.”
Suffice it to say that the Apache reliance on Treaty Article 9 — “the United States shall at its earliest convenience designate, settle, and adjust their territorial boundaries, and pass and execute in their territory such laws as may be deemed conducive to the prosperity and happiness of said Indians” — is overshadowed by Article 1: “Said nation or tribe of Indians through their authorized Chiefs aforesaid do hereby acknowledge and declare that they are lawfully and exclusively under the laws, jurisdiction, and government of the United States of America, and to its power and authority they do hereby submit.”
The Treaty is a subject for another post. There’s more to be said….
CONCLUSION
Judge Logan acknowledged the truth of the Apache land title question in the course of his 2021 dismissal of the Plaintiff’s RFRA argument, where he said:
“Oak Flat does not provide the type of “benefit”’ required under RFRA jurisprudence: It isn’t something the Government gave to the Western Apaches….”
The US could not have given Oak Flat to the Apache because the US did not own Oak Flat; it merely claims to own Oak Flat as part of its “Christian discovery” pretense in Johnson v. McIntosh to own the entire continent.
District Court February 12, 2021 decision.
9th Circuit Panel decision June 24, 2022.
9th Circuit Panel decision Dissent, June 24, 2022.
9th Circuit en banc decision.
Apache Stronghold Corrected Amended Reply Memorandum In Support Of Motion For Preliminary Injunction
Executive Order 13007 (1996) doesn’t amount to a slim reed. President Clinton issued it “to protect and preserve Indian religious practices”; But the Order says: “This order is intended only to improve the internal management of the executive branch and is not intended to, nor does it, create any right, benefit, or trust responsibility, substantive or procedural, enforceable at law or equity by any party against the United States, its agencies, officers, or any person.”
Order 13007 is based on the 1978 American Indian Religious Freedom Act [AIRFA], if possible, a slimmer reed than the Order. The controlling precedent says: “American Indian Religious Freedom Act (AIRFA) is a policy statement and does not create a cause of action or any judicially enforceable individual rights.”
Odd to cite FLPMA. Even the Dissent in the 9th Circuit en banc decision said: “The Land Transfer Act includes a specific exemption from …the Federal Land Policy and Management Act.”
With your works, both from a legal and judicial perspective as well as a philosophical and thought perspective, you have opened up a world to me that I had not known before and made me reconsider the existence of modern states and how they are abusive and oppressive. The situation of the American Indians is, to this day, nothing short of scandalous and intolerable, which demonstrates that the USA has never been a civil democracy but just a fiction, a murderous scam. I am fighting for similar issues in Italy to bring liberation and rights to my People, namely that land today called Southern Italy (former Kingdom of the Two Sicilies), like the Native Americans, we were attacked in 1860 without a declaration of war and occupied and annexed to what we now call the Republic of Italy, from which we want to free ourselves. From the aggression of 1860 to today, we have suffered over a million deads and only plunder and bleak, cynical violence, and we are considered an internal colony and children of a lesser god.
Thank you so much Peter for unveiling this for us.
Indeed the doctrine of discovery "ownership" is about land theft and so much more. The Carl Schmitt, 1950 quote is visceral for me because the thinking is also applied in many ways in the structural system of domination.
The “land” is not limited to whatever continent this thinking arrived on. It includes earth, water, air, trees, minerals, animals, children, human beings, women’s wombs, language, cultural life ways that they can only see through the lens of “religion”, etc. The "land" includes all life. Mother Earth herself.
For example: Quanah Parker’s negotiations with US govt for the protection of the Sacred Sites and Life Ways of Peyote meant the usurpation by the christian theological worldview imposed criteria of agreement to call it a “religion” and he would create a “church” and incorporate bible words. Another note - one time I was invited to a Sun Dance that they said the 12 arbor poles represented the 12 apostles.
The rest of the quote as are the mental gymnastics of case law - is the usurpation through claim of "primary source" to replace natural lore and original existence with man made-up "right" to dominate and own original existence and the justification of this man made-up "right" is maintained through "legalized" acts of warfare, conquest, treaties, municipalities, policing, etc etc etc and mostly because people believe this stuff, all dressed up with words like "freedom".
There is nothing in this kind of thinking that makes good relations with Earth, all life and one another. It is the language of warfare.