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Navajo Attorney General Tsosie Tackles 'Christian Discovery'

Congratulations to Navajo Attorney General Harrison Tsosie for hard work and persistence in achieving the historic settlement of a Navajo Nation claim against the United States for mismanagement of Navajo Nation resources. The resources are supposedly held "in trust" by the federal government for the benefit of the Navajo People. In fact, the U.S. squandered the resources and misplaced the records of its dealings over a period of many years, much as in the Cobell case involving individual "trust" accounts. The Navajo settlement provides a U.S. payment of $544M to the Navajo Nation.

The New York Times, in an editorial calling the settlement "delayed justice," said the federal government "manage[s] in trust more than 50 million acres of lands and more than 100,000 leases on those lands, which have been lucratively developed by outside mining, lumber and ranching interests in contracts that shortchanged the tribes." The Times described the process by which the U.S. acquired this "trust" power as being "through past treaties and other arrangements with Indian tribes."

Contrary to the Times editorial, the "trust doctrine" that allows the U.S. to treat Indian lands and resources as it deems best derives not from any "treaty [or] other arrangements with Indian tribes," but from a doctrine of anti-Indian religious discrimination adopted by the U.S. Supreme Court at the very outset of federal Indian law and U.S. property law: the doctrine of "Christian Discovery."

As Attorney General Tsosie stated to Indian Country Today Media Network, the Navajo case "was precipitated by the 1823 Supreme Court ruling in Johnson vs. M’Intosh, which defined the Doctrine of Discovery or the loss of tribes’ 'absolute title to land.'"

Mr. Tsosie's remarks put the Navajo Nation at the forefront of a growing array of critics of the doctrine of "Christian Discovery" and the concomitant "trust doctrine," claimed by the United States as the legal basis of its control over Indian lands and resources. Following the 1823 Johnson ruling, the U.S. Supreme Court elaborated "Christian Discovery" in subsequent cases to hold that the U.S. is the "guardian" of Indian "wards."

Mr. Tsosie continued, "Many of us don’t understand that these are the legal principles we live with today.... This settlement is not an end to a problem. It’s a recognition and a beginning of a dialogue about that problem. This is a beginning, not an end. There are many Indian tribes in the United States that are in the same predicament we were—having to sue the federal government."

Surprisingly—for a country supposedly founded on the separation of church and state—the Johnson ruling was based on religious decrees from the 15th century. One of these decrees, the Papal Bull Inter Caetera, issued May 3, 1493, states the basic principle the Johnson decision followed: "Our beloved son Christopher Columbus…discovered certain very remote islands and even mainlands…. We…by the authority of Almighty God…do…give, grant, and assign to you and your heirs and successors, kings of Castile and Leon, forever…all islands and mainlands…discovered and to be discovered…with this proviso however that none…be in the actual possession of any Christian king or prince…."

Chief Justice John Marshall, author of the Johnson decision, referred to the Papal decrees and wrote, "No one of the powers of Europe gave its full assent to this principle [of Christian Discovery] more unequivocally than England," which commissioned its explorers to "take possession of such remote, heathen, and barbarous lands as were not actually possessed by any Christian prince or people."

In 1955, the U.S. Supreme Court had a chance to revisit the doctrine of Christian Discovery in another resource taking case, Tee-Hit-Ton v. U.S. Rather than rejecting religious discrimination in property law, the court upheld it, saying, the "position of the Indian has long been rationalized by the legal theory that discovery and conquest gave the conquerors sovereignty over and ownership of the lands thus obtained."

The court refused to compensate the Tee-Hit-Ton for timber contracted away by the U.S. Forest Service to benefit the pulp paper industry. The court said the U.S. didn't owe any money to the Tee-Hit-Ton because the Tee-Hit-Ton didn't own the timber or their lands; the U.S. owned the timber and lands and could do as it wished with them. In legalese, "The right of the United States to dispose of the fee of lands occupied by [Indians] has always been recognized by this court from the foundation of the government."

Mr. Tsosie's remarks challenge the doctrine of "Christian Discovery," the religious discrimination against Indians that forms the core of federal Indian law. The challenge to "Christian Discovery" echoes the critique of segregation doctrines affecting Black people that led to the Supreme Court overruling those doctrines in 1954.

 In 1954, the U.S. was worried about its world reputation in the Cold War, which pitted America against the Soviet Union for the allegiance of Third World nations emerging from colonial domination. The Soviets pointed to segregation as the dirty truth behind America's rhetoric about "freedom."

Today, the U.S. is embroiled in another war of words and ideas that is also a hot war of military actions. The U.S. rails against "religious extremists" as "terrorists," and calls for respect for religious diversity. America wants to be a world leader for religious tolerance and separation of church and state.

But the continued application of "Christian Discovery" to Indian lands gets in the way. American legal doctrines once again threaten its reputation, exposing the U.S. to scrutiny and scorn. The legal structure of U.S. property law—not just Indian law, but property law for all land in the country—rests on "Christian Discovery." This fact belies the talk of American "tolerance" for "religious diversity."

Jose Barrerio (Taino) once wrote, "Indigenous is nearly synonymous with diversity." As the world confronts religious wars rooted in monotheisms of past centuries, and land claims based on religious domination, the Navajo Nation takes the lead among Indian nation governments, opening a legal dialogue about peoples and lands for the 21st century.

Peter d’Errico graduated from Yale Law School in 1968. He was Staff attorney in Dinebeiina Nahiilna Be Agaditahe Navajo Legal Services, 1968-1970, in Shiprock. He taught Legal Studies at the University of Massachusetts, Amherst, 1970-2002. He is a consulting attorney on indigenous issues.