The Majority Report with Sam Seder

Episode 3601: How The Pope Enabled The 'Legal' Theft of Indigenous Land

Guest: Peter d'Errico, Professor Emeritus of Legal Studies, University of Massachusetts Amherst
Date: October 13, 2025

Episode Overview

In this episode, host Sam Seder conducts a wide-ranging interview with legal scholar Peter d'Errico about his book Federal Anti Indian Law: The Legal Entrapment of Indigenous People. The discussion exposes the origins and perpetuation of laws that dispossessed indigenous peoples of their land in the United States, tracing these legal mechanisms back to papal decrees, colonial real estate ventures, and the longstanding “Marshall Doctrine” in U.S. law. They critically examine how religious doctrine was transformed into secular legal precedent, enabling the U.S. government to claim legal dominion over indigenous lands for centuries — a framework that continues to impact court decisions today.

Key Discussion Points & Insights

1. Foundations of Indigenous Land Theft in Law and Religion

• Colonial Real Estate Ambitions:
  The American project began as a land speculation operation, led by figures like Washington and Jefferson, and earlier by colonial companies who treated land as profit and property to be claimed and parceled.
  • Quote: "You could think of the entire colonial operation as a real estate operation going back before there was... Virginia Colony was a company... investors expected to turn a profit."
    — Peter d'Errico [19:52]
• The Papal Doctrine of Discovery:
  The legal justification for dispossession came from papal decrees in the 15th and 16th centuries, which declared that lands “discovered” by Christian monarchs belonged to them by divine authority.
  • Quote: "The premise of all of that is... the claim that it was not actually necessary to do anything other than so-called discover this land to have the claim held by the Crown...because the Pope says that you have it."
    — Peter d'Errico [21:04]
• Religious Justification as Internal Rationalization:
  Christian doctrine wasn’t meant for indigenous audiences but to legitimize conquest within European societies and among monarchs.
  • Quote: "It's a rationalization for internal consumption, basically. And it's a rationalization that the colonizing monarchies accepted among each other."
    — Peter d'Errico [26:21]

2. Birth and Endurance of the “Marshall Doctrine”

• Key Supreme Court Cases:
  • Johnson v. McIntosh (1823): Stated the U.S. owns indigenous lands by virtue of discovery.
  • Cherokee Nation v. Georgia (1831): Denied nationhood to indigenous tribes.
  • Worcester v. Georgia (1832): Affirmed federal control over indigenous lands, not states.
• Doctrine’s Logic and Legal Schizophrenia:
  The U.S. legal system assumes indigenous “peoples” cannot own land outright; legal logic is circular, rooted in a fabricated original premise.
  • Quote: "There is a just a fundamental assumption that is made that is wrong. But once that fundamental assumption is made, everything logically follows from that."
    — Sam Seder [34:09]
• Eternal Precedent Without Scrutiny:
  Landmark cases today (including by liberal justices like Ruth Bader Ginsburg) still cite the Marshall Doctrine, omitting its colonial and religious origin.
  • Quote: "You have the conservative Clarence Thomas saying the US has no basis to claim this power. And you have the liberal Ruth Bader Ginsburg just accepting it without... even something she had to quarrel about."
    — Peter d'Errico [38:58]

3. Persistence, Whitewashing, and Transformation of Doctrine

• Dropping ‘Christian’ from ‘Discovery’:
  Over time, courts distanced the doctrine from its explicit religious language, using “discovery” as legal shorthand while hiding its Christian roots.
  • Example: In Tee-Hit-Ton v. United States (1955), the Supreme Court denied land rights by invoking “discovery” doctrine while quietly removing the “Christian” aspect after internal debate.
    — [42:04]
• Modern Application and Media Myths:
  • McGirt v. Oklahoma (2020): Seen as a win for indigenous sovereignty, but ultimately reaffirmed federal (not indigenous) jurisdiction over crimes in “Indian country.”
    • Quote: "The thing most people missed... was that they were saying he should have been tried by the federal government. It was not that the Creeks were going to be empowered to try him..."
      — Peter d'Errico [43:35]
  • Law has become adept at “layering carpets” over the original doctrine, obscuring its origins and meaning.
    — [45:41]

4. Federal vs. State Power and the “Indian Issue”

• Laws over indigenous lands reinforce federal power over states, historically pivotal in battles over secession, land distribution, and the very structure of the U.S. union.
• Colonial and post-colonial control over indigenous territory has always functioned as both land acquisition and a reassertion of federal authority over states, forcing even rebellious states to go “to the feds” to enact their plans for indigenous removal.
  • Quote: "It was a twofer. On some level... both a function of, of colonization, but also colonization as almost like... you get the land, but you also understand that we're the capo."
    — Sam Seder [51:45]

5. Modern Assimilation and the Mirage of Progress

• Achievements like the election of indigenous officials (e.g., Deb Haaland as Secretary of the Interior) are seen as progress, but often play into the original “assimilationist” vision—administration of colonial policy by assimilated elites.
  • Quote: "To the extent that Native People participate in that, they're participating in that whole assimilation project... the boarding schools were created with that aim in mind."
    — Peter d'Errico [53:53]
• Land remains the central issue: environmental and “land-use” debates about mining, lithium extraction, and sacred sites regularly sideline indigenous sovereignty, reiterating anti-Indian law under the guise of environmental or capitalist rationale.

6. Pathways for Awareness and Reform

• A reckoning with history—realizing how U.S. law is deeply anti-Indian and rooted in pre-modern religious conquest—is crucial to breaking the logic that undergirds indigenous legal oppression.
• Real reform requires both public and legal acknowledgment of the doctrine’s illegitimacy, not just further assimilation into the system that denies sovereignty.
  • Quote: "Once you see... that's why in the title Anti Indian Law, I want to make it very clear out of all this confusion... all of this is anti Indian."
    — Peter d'Errico [61:41]

Notable Quotes & Memorable Moments

• "The entire colonial operation [was] a real estate operation... part of the turning of the profit was going to be shipping back some kinds of goods... but land became the crucial piece."
  — Peter d'Errico [19:52]

• "The claim that there's a Christian power, Christian monarchical power to claim ownership of areas of land... that's the seed [of American real estate dispossession.]"
  — Peter d'Errico [22:30]

• "There is... a fundamental assumption that is made that is wrong. But once that fundamental assumption is made, everything logically follows from that."
  — Sam Seder [34:09]

• "Law functions... generally, it's working out of... a set of mental habits. ...But when you get into maybe this law is not making sense, then you have to look at the precedent."
  — Peter d'Errico [39:51]

• "That whole process… [the Friends of the Indians] celebrated: One day they will be civilized and participate in our political process... And it's almost like, well, this is what's happening now."
  — Peter d'Errico [55:03]

• "If people knew the history... these same issues are going on around the world... but within the US there's a kind of a mesmerization that has gone on."
  — Peter d'Errico [59:33]

• "Once you see... that's why in the title Anti Indian Law, I want to make it very clear out of all this confusion. You can see one clear thread: All of this is anti Indian."
  — Peter d'Errico [61:41]

Timestamps for Key Segments

• [19:41]: Origins of colonial land policy; real estate as American DNA
• [21:04]: Papal edicts and Christian justification for land theft
• [24:14]: Christian doctrine as a rationalization for European audiences
• [29:22]: The transition from divine right to legal precedent in U.S. law
• [31:53]: The Marshall Doctrine and its ongoing ramifications
• [34:09]: The logical circularity and schizophrenia in anti-Indian law
• [38:58]: Doctrine’s persistence; cited across liberal/conservative justices
• [42:04]: Tee-Hit-Ton case and removing “Christian” from “discovery”
• [43:30]: Misperception of McGirt v. Oklahoma; federal vs. indigenous power
• [47:50]: Indian law as a thread in federal vs. state power struggles
• [53:53]: Assimilation, boarding schools, and “progress” as continuation of policy
• [61:41]: The necessity of recognizing the anti-Indian thread in U.S. law

Conclusion

Sam Seder and Peter d'Errico’s conversation shatters myths about America’s “legal” foundations regarding indigenous peoples, revealing how core principles of law and property rights are entwined with colonial, Christian, and anti-indigenous prejudices that endure in legal precedent. The episode drives home the idea that progress will require more than surface-level change or increased representation; rather, a clear reckoning with the deep, anti-Indian roots of American law — and public consciousness in general — is needed if true justice is ever to be achieved.

Guest’s Book:
Federal Anti Indian Law: The Legal Entrapment of Indigenous People
— Link in Majority FM and YouTube description