The San Carlos Apache battle cry, sounded by San Carlos Apache Chairman Terry Rambler to prevent the hostile takeover over of Apache lands by the United States and Rio Tinto mining corporation, goes to the core of U.S. neo-colonialism against Native nations.
The current attack on Apache lands arises from a law recently passed by the U.S. Congress, the "Southeast Arizona land exchange and conservation Act." The title of the act conceals its true purpose. The law has nothing to do with conservation. It enables the mining company to begin digging, with the environmental hazards and destruction that mining entails.
The title of the act also shows the anti-Indian root of the law: The lands in question do not belong to Arizona; they are Apache lands. Already, in the name of the law itself, we find levels of deception.
We are familiar with the common political practice of concealing the true purpose of a law behind wonderful-sounding phrases: "conservation" instead of "destruction." We should also be familiar with the fact that federal Indian law presents a pro-Indian mask in front of an anti-Indian face: "trust responsibility" instead of "federal domination."
The Rio Tinto law—let's call it by its real name—starts with the following presumptive statement: "The purpose of this section is to authorize, direct, facilitate, and expedite the exchange of land between Resolution Copper and the United States."
But how does the United States claim ownership of the land?
The United States claims ownership of Apache ancestral lands the same way it claims ownership of all Indian lands: through the doctrine of "Christian Discovery" set forth by the U.S. Supreme Court. "Christian Discovery" doctrine states that the United States holds title to all Indian lands. The doctrine further states that Indians are only "occupants" on their lands and that they do not hold their "occupancy" by right, but only by "the grace of the sovereign."
The Supreme Court based its "Christian Discovery" ruling on religious concepts dating from the time of Christendom. The court held that 15th century Papal Bulls authorizing Spanish and Portuguese colonial exploitation and domination of the "New World" also provided authority for English colonization. The court concluded that this religious authority to dominate and colonize "heathens and pagans" extended to the U.S. government after the American Revolution.
The Supreme Court has repeatedly reaffirmed the principle of "Christian Discovery." The court still cites the original 1823 case, Johnson v. McIntosh, as valid law. In fact, U.S. courts at all levels have cited the Johnson ruling more than 300 times since 1823, including at least four times in 2014.
In 1955, the U.S. argued explicitly in favor of "Christian Discovery" in the case of Tee-Hit-Ton v. U.S., resulting in a Supreme Court decision that the United States could take Indian property without compensation because Indians don't own their lands.
The San Carlos Apache are up against the federal Indian law framework that Johnson and Tee-Hit-Ton established: the principle of religious domination inherent in federal Indian law. The Rio Tinto act presumes that Apache lands are owned by the United States because that's what federal Indian law says!
The Rio Tinto act contains a subsection entitled "Consultation with Indian Tribes." It says, "The Secretary shall engage in government-to-government consultation with affected Indian tribes concerning issues of concern to the affected Indian tribes related to the land exchange." (The act defines "Secretary" as "the Secretary of Agriculture." We are expected to believe that the Rio Tinto project has something to do with food. Another deception.)
The "consultation" indicated in the act focuses after the fact of the exchange, not before. In contrast, the United Nations Declaration on the Rights of Indigenous Peoples specifically mandates "prior consent." Article 19 of the UN Declaration says: "States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them."
Article 32 of the UN Declaration reinforces the principle of "prior consent" with the following two further mandates: "1) Indigenous peoples have the right to determine and develop priorities and strategies for the development or use of their lands or territories and other resources, and 2) States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources."
The Rio Tinto act fails completely to meet or acknowledge the rights of the San Carlos Apache under the United Nations declaration. The fact that the act uses the phrase "government-to-government consultation" does not mean that the act actually recognizes and protects the indigenous government of the San Carlos Apache. That phrase is just another layer of deception, a mask and window dressing for a unilateral move by the United States.
To make matters worse, the act says that any responses to Indian "concerns" and any steps taken to "minimize the adverse effects" on them shall be "mutually acceptable" to Rio Tinto!
The fact is that the United States has refused to accede to the international legal norms announced in the United Nations declaration. Although President Obama reversed the original “no” vote by the United States when the United Nations adopted the declaration, he did so with a statement that "the Declaration’s concept of self-determination is consistent with the United States’ existing recognition of, and relationship with, federally recognized tribes."
In other words, the United States takes the position that federal Indian law already embodies the principles and mandates of the U.N. declaration. As we see in the Rio Tinto act, however, federal Indian law bears little resemblance to the norms of self-determination under international law. In short, the Obama statement, while attached to a yes vote, really amounts to a continuing no vote.
The bottom line here is that the San Carlos Apache do have a battle on their hands—a serious and profound battle against entrenched forces of colonial domination that have a 500-year head start. All Indian nations should take note of Chairman Rambler's challenge: "We must stand together and fight those…that seek to take our religious freedom, our most human right…."
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.