3601 - How The Pope Enabled The 'Legal' Theft of Indigenous Land w/ Peter D'Errico

Summary

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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

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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.

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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]

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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]

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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

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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.

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

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Transcript

[Sam Cedar]

The Majority Report with Sam Cedar. The destiny of America is always safer in the hands of the people than in the conference rooms of any elite. Sam Cedar. They are unanimous in their hate for me and I welcome their hatred. We must guard against the acquisition of unwarranted influence, whether sought or unsought, by the military industrial complex.

[Peter d'Errico]

The Majority Report with Sam Cedar. And I get the feeling you've been cheated. It is Monday, October 13, 2025. My name is Sam Ceder. This is the five time award winning Majority Report. We are broadcasting live to tape steps from the industrially ravaged Gowanus Canal in the heartland of America, downtown Brooklyn, usa. On the program today, professor emeritus of Legal Studies at the University of Massachusetts, Peter De Erico on his book Federal Anti Indian Law, the Legal Entrapment of Indigenous People. Also on the program today. Well, that's about it. I think we're gonna run a video. But today we are actually off both celebrating Indigenous People Day, but also because tonight the Majority Report is going to be the primary streamer. How we would it like? We're not exclusively streaming it, although we are in charge of this stream from a rally tonight. Brian, what is it called? The rally tonight. Our time has come. Rally Zoran Mamdani. Do we know who else will be there tonight? Okay. And do we know what time to start? 7 o' clock East Coast Time. On the Majority Report, a YouTube channel, you will be able to see this rally and I think Emma and I will be providing some commentary at least beforehand. And if you can't see it, it's because Brian forgot some type of dongle or a cable and has spilled my coffee on the soundboard. Who ruined the broadcast for everybody. But so check that out tonight. In the meantime, let's play this clip before we get to Professor Dereko. And I should say this is an interview that I think we first did in. Was it in 2024 or maybe even prior to that? I think it was maybe in 2023. I think it might have been 2023. Yep. This I found as a just a fascinating piece aspect of American law, the law in this country that allows us to basically dispossess indigenous people of their land is a direct derivative of a papal edict, I believe, if I remember correctly, from like the 1400s or the 1600s. But it's fascinating history that is contemporary as well. So enjoy that interview. But first, let's take a look at this. As you know, the Trump administration, they seem to do it only on the weekends. Nobody seems to pay much attention. I think initially they may have done it as a way of distracting from the Epstein files. It is unclear to me what exactly is behind this because. And that I'm speaking of is the Trump administration, as far as we know, has blown up. I think it's now three boats in the Caribbean coming from Venezuela. At least one of them I know was headed to Trinidad and then tried to turn around. And these are, you know, small boats. They're fishing boats. And there is no reason to believe that the people that we have killed in these boat attacks by drone are the people that the Trump administration says they are. They've offered no proof. And to the extent that we know reporting coming out of Venezuela, they say these were just fishermen. It was four boats as of last week. And I saw a Rand Paul say earlier this week that when they typically interdict boats in the Caribbean that they suspect of drug dealing, about one in four of them don't actually have drugs on it. So statistically we would have at least just going off of that blown up innocent people. And there's no reason to believe that you have a better sense of who a boat is from a drone in the sky than actually as you board them. So Elise Slotkin took to the Senate floor and had what I perceived as a weird critique. I mean, okay, let's just assume that these boats actually do contain drugs. We have blown up four of them. What is the value of this? First of all, there is no reason to believe they were coming to the United States. But even if they were, is this a sustainable policy? We're going to blow up all boats that we see heading to the United States. I don't understand what, like, the theory is here and never mind what is the legal authority in which we're allowed to blow up narcotics smugglers? Narcotics terrorist smugglers. I mean, we don't have a legal determination of whether they're terrorists. They're not terrorists. But here is Elise Slotkin and she's the one with the bona fides in the Democratic Party because she was in the CIA. Chuck Schumer's pick for response for the union. She is the rising star in the Democratic Party, and here she is with her critique of this policy that if the Trump administration wants to be at war against a terrorist organization, they should come to Congress, notify us and seek our approval. Currently, the administration is waging a secret.

[Sam Cedar]

War against a secret list of unnamed.

[Peter d'Errico]

Groups that they will not tell us about. There's been four lethal strikes against boats in the Caribbean. Now, don't get me Wrong. I'm a CIA officer. I'm a former Pentagon official. I did three tours in Iraq armed alongside the military. I participated in targeting of terrorist groups. And I actually have no real problem going against cartels, given what they have done in inserting drugs in our community. The death of so many Americans that if the Trump administration. Can we do this also with Purdue Pharmacy? Are we allowed to do this with Purdue Pharmacy as well, just to send some blow up there?

[Sam Cedar]

Yeah.

[Peter d'Errico]

Yeah. And if we're one out of four, you know, three out of four, whoops. Shouldn't have pushed us at this point. As long as you file the right paperwork, I'm all right. Yeah. Americans are dying.

[Sam Cedar]

It's.

[Peter d'Errico]

Yeah. What's the authority to go against. We can just decide that we're going to just summarily execute criminals as long as the Senate says it's okay. Can we summarily execute murderers? What about. Can we summarily execute bankers who commit some type of fraud, cause suffering that causes people to maybe become addicted to a substance? Right. There are all the bankers who sort of resold mortgage applications but didn't have the actual papers of record on it, as David Dayan pointed out in Chain of Title. I mean, the real question is who can we summarily execute as a government based upon their crime? It's an interesting question. Or what we hallucinate their crime to be. Yes. I mean, never mind the fact, because this is like her point is like, we don't know if they're doing this by the book. The book does not say that you can summarily execute criminals. I'm sorry, we don't have that in this country. There's a bit of a slippery slope here. It seems like. It kind of seems like we're on the we part of this. Exactly. But there it is. There's the Democratic Spokesperson for Law and Order in the Democratic Party. In a minute, we're going to play that interview with Peter d' Errico discussing his book Federal Anti Indian Law, the Legal Entrapment of Indigenous People. I sort of like a little bit obsessed with Indian law because I. When I went to law school for a year and I distinctly remember somebody asking me, cedar, what are you going to. What kind of law do you want to practice? And I said, well, maybe Indian law. And the guy just sort of laughed at me. That was when I sort of knew, like, maybe I should get out of here. Anyways, that's not the point. Point is, we've got a couple of words from our sponsors today. Long work weeks, busy weekends can leave you feeling and looking depleted or just long work weeks. Trust me on this. 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[Sam Cedar]

Our Time Has Come.

[Peter d'Errico]

Our Time Has Come. It is a Zoran Momdani rally. I don't know who else is going to be there. I don't know who the speakers. You're gonna have to check it out. But it's going to be great to see. This is, you know, knock on wood, gonna be a one bright spot in what is otherwise a rather sort of dark period in our politics. And hopefully this is going to be a bright spot that will help a response to this moment grow. So check it out. Tonight, 7pm going to take a quick break. When we come back, Professor Peter d', Errico, professor emeritus of Legal studies at the University of Massachusetts. This is an interview we did a couple years ago on his book the Federal Anti Indian Law, the Legal Entrapment of Indigenous Peoples. Real pleasure to welcome to the program Peter d'. Arico. He is a professor emeritus of legal studies at the University of Massachusetts Amherst, author of Federal Anti Indian Law, the Legal Entrapment of Indigenous People. Peter, welcome to the program.

[Sam Cedar]

Thank you, Sam. Good to be here with you.

[Peter d'Errico]

I gotta say, I've always been fascinated by Indian law. I went to law school for one year and then left. But at the time I, you know, this was in the very early 90s and I thought Indian law was the thing I was interested in. Unfortunately, I went to BU Law School. And so the idea of me doing Indian law there was, was met with like sort of laughter and derision at that time. But I have come and with no so part, you know, from understanding, from, from, from your book, to understand that really Indian law for much of this country's existence has been real, I mean, a farce, I guess, in many respects is the way to talk about it. But let's before we get to specifically that, let's just go back and the idea of dispossession of indigenous people lands in this country really, in many respects started at the birth, you know, obviously, rebirth of the nation. But Washington and Jefferson in particular were real estate guys.

[Sam Cedar]

Absolutely.

[Peter d'Errico]

Just walk us through that a little bit so we have a certain context to understand. Like this is in the DNA of the country and we talk about things like the Northwest Territory and et cetera.

[Sam Cedar]

I love that. For the real estate, I use the phrase more formal land speculators. But real estate, that's exactly what it was. You could think of the entire colonial operation as a real estate operation going back before there was, you know, in fact going back to the first colonies. Virginia Colony was a company, a company of adventures, was a joint stock company. There were investors and the investors expected to turn a profit. And part of the turning of the profit was going to be shipping back some kinds of goods. I mean, it was kind of vague at that time. What can they get? Eventually they found tobacco was a big market. Furs were always in the northern parts. There was always the possible market there. But land became the crucial piece and huge chunks. This is also integrates with where John Marshall, the Chief justice who wrote these three opinions that created this anti Indian law structure that says that the US actually owns the continent. They his land, his own personal claims to land were involved in it. Today we'd say what a gross conflict of interest. But Washington, Jefferson, their claims to land came long after Lord Fairfax. He was, he was the big guy. Lord Fairfax, grant from the Crown, direct from the king. And the idea was that these were landed gentry in England and they were investors in England and they were going to just replicate that. And the replication was they were going to get vast land grants which they would hold as essentially as fiefdoms, and then they would parcel them out and make money off of that process as the lords of the manor. And at a time when land, the idea that land could be bought and sold was just barely emerging. It was no longer going to be feudal where you held the land of the lord. So you have the land lord and you hold the lord gives you the right to live on this land, etc. That was the feudal structure was shifting toward the lord could actually just sell you the land. Then the lord had no control over you or your land. That was all in flux at this time. So real estate in a very complicated way, at the same time a very straightforward way of grabbing land. And I want to add one more thing which is the premise of all of that is the continuing presence premise of what I call federal anti Indian law, which 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. So Henry VII sends out John Cabot just like the Spanish sent out Columbus. Of course, they didn't know what Columbus was going to bump into, but when they dealt with the Pope, the Pope said, oh, he dealt. He bumped into something that we don't know about, but you have control over it. So it's in your feudal domain. Your crown is now the crown of that whole area. Well, Cabot made the same kind of discovery, Henry VII and England claims from that. Now we have that. And why do we have that? And why do the Spanish have it? Because the Pope says that you have it. And who is the Pope? He's the Vice Regent of God on Earth. And so right at the outset, pre. Any development of Washington isn't even a dream in anybody's eye. At that time, there was already the notion that this is essentially a land transaction. Transaction is not quite the right word for a grant, but it was a land grab. And it was done under the auspices of the superior power of the Pope as the ruler of the world and of Christianity. And so a Christian monarch occupied the position of somebody as soon as that monarch discovered something that no other Christian monarch had discovered. It was part of their domain. And domain comes from dominion and domination. And, and it's actually the Latin word from which lordship comes Dominus. So weigh this very seed. It's like you thought, what's the very first seed of this real estate business that you so nicely described? The very first seed is that which I've just described, the claim that there's a Christian power, Christian monarchical power to claim ownership of areas of land. And then this is what, in 1823 now we leap up some centuries well.

[Peter d'Errico]

Before we get there, because I think this is, you know, this is sort of, this is fascinating insofar as, and I think people are about to see the relevance when we get to Marshall, as to, like, you know, how this, this, I guess, this paradigm of God essentially saying, this is yours. And of course the interlocutor there, you know, maybe, you know, has access to. I have access to God. So trust me, this is what God, he says. And of course he is a he. But how much of this, like, I mean, what's fascinating, even at that stage of, of, of human development, if you will call it that, there is a justification offered, when in fact it is like the reason why we're going to take this land is because we can, we have, you know, or we're going to find out if we can in terms of like sheer weaponry. And the, the, the Christianity at that point becomes the justification, but it's, it's internal, almost like domestic, if you will, justification. Right. Like the indigenous people, they don't Care what Christ said about this as being your land. Like, that's not going to adjudicate this. This is to almost in some ways assuage the. The domestic potential dissent as to like, hey, wait a second, why am I going to die? So that the king or the Lord controls this land which I may or may not participate. I mean, he's going to feed me off of that land, maybe because I'm one of his soldiers. But like, how much work aside from the idea of, like, we're in this gang and if you help me plunder, I'll give you the stuff. It just became an organizing principle and a sort of rationalization for people that, well, this is. God told us to do this.

[Sam Cedar]

Yes, it's really excellent, Sam. It is a rationalization for internal consumption, basically. And it's a rationalization that the colonizing monarchies accepted among each other. So that the idea was they all agreed on that, what you just described. And it was just a question who got there first? And there were battles about who got there first. And by the way, it was not just on the Atlantic coast. The by the time that another century's gone by, a battle is happening on the Pacific coast with Russia involved and Spain involved and France involved and England involved. Most people have no clue that that was all going on around what we call the Northwest coast right now. But the same they were arguing with each other and fighting with each other, saying, I got here first and see, my mark is on the. I put a mark on that tree right there. And no, you didn't get here first. We got. Here's our mark on that other tree. So it was that, that principle, if you want to call it a principle, excuse, justification that they all agreed on and then fought over who got here first. Now a key piece of this to understand is when you said when in fact, what's really going on is we can, or we think we can, or we're going to try to. Can actually take it without any excuse other than that we want to take it so that the Christian is like an overlay on something else, just more basic. Is that the piece to remember is that when we get to the time of lawmaking, like John Marshall, the US Etc, Then it. It's no longer. Well, let me back up a little bit. When John Marshall writes his opinion in 1823 saying that the United States is now going to adopt. They got rid of the king, they got rid of the Crown, but guess what? They're going to take the powers that the crown had. That was the question in the case, and he says that all the powers that the Crown claimed about land are now going to be powers that the US Claims. And he says they may not make sense rationally. He actually says that it may not be according to reason. He said it may actually be in violation of principles of justice, but nevertheless, this is going to be the rule. But what was the rule at that time? The US didn't even know what was in the interior of the country. And as I said, they were just beginning to realize. It was until Jefferson that they said, oh, you mean this is actually. There's a connection to the Pacific? We were hoping there was a water connection. Yeah, we found that we can walk over the mountains and get there. They were still figuring out what was this continent all about, but nevertheless, they were claiming they already owned it. So there's no way that it could have been said. You can't say logically, rationally, factually, oh, the US Conquered America, conquered the continent. There was no, no presence of America internal in the continent. But the claim of the legal claim was still being laid down so that at each step that justification had been turned from the Christian thing you talked about into just a legal thing saying, oh, the US Owns it. How does the US Own it? People don't have to answer that question. They don't. All they know is that the court says the US Owns it.

[Peter d'Errico]

I mean, yes, and what's fascinating is we had some type of transition in terms of, you know, rule, like legitimacy for rule, and, and obviously flawed because of, of how limited. But there was this democratizing movement in the context of who's going to rule here. We're going to elect representatives. There is no divine right for the presidency that is elected. I mean, you know, all this obviously is qualified by the fact that, like, you know, you need to have property rights or property, et cetera, et cetera. But relative to feud, it is a, a step in a democratizing direction. In the context of our law, it feels like the law also became canonized, but based upon a new set of principles that were a function of a charter that was not necessarily given to us by God, but was negotiated theoretically by representatives. Again, however, in this instance, and I don't know, and you would have a better sense than I, Marshall here is just basically saying we're reliant on that old feudal system of determining rights, in this narrow instance from God, in part because indigenous people are diminutive, like literally to be susceptible to dominion. And therefore it is what it is. There are three major cases at that time in which this so called martial doctrine is developed. Johnson versus McIntosh, Cherokee Nation versus Georgia, Worcester, not to be confused with the place, but a guy versus the state of Georgia. And these are all instances where there is a, an indigenous person pursuing rights essentially then Marshall is like, yeah, those don't exist in the same way even though the law as we've established it to this point would otherwise say. But there's like a, a carve out. If you're an indigenous person, can you just talk about the development of that law like the, the that doctrine? Because we should be clear, this doctrine has been cited in the past couple of years. This is a doctrine that had incredible durability.

[Sam Cedar]

Yes. And still does. And I want to say that right now we're at a very critical bio. It's really interesting talking to you. You're very sharp picking up on this stuff and having thought through so much of it. It's really arcane stuff to get hold of and you're helping, I think me just be able to answer your questions clearly by focusing. So it's the, there's a slippery point here that it's not about indigenous persons, people, it's about indigenous peoples. And what Marshall is doing at that, about a 12 year period is to carve out a zone of law which says we're not really talking about people, we're talking about peoples. And these peoples are less than the rest of Christian humanity so they can't really be on their own. That's what the Christian. That's What Cherokee Nation vs State of Georgia said. Said the Cherokee Nation had a treaty with the United States when Georgia troops invaded Cherokee Nation. The treaty said the US was supposed to come in. It's like allies and be allies and defend each other's territory. And this is when Marshall said, well, you're not really a nation and you're not really a nation because we claim title to your land. That's the, that's the Johnson v. McIntosh one. So he says you don't really own your land, so therefore you're not a real nation. And when he gets to Worcester v. Georgia, he's saying, okay, there's really. The federal government is in total control here. It's about the land at root, not the people individually, but about the land that they live on and that they have as a homeland, as a nation. And he says a, you are a people, but you're not a full fledged people because you don't own your homeland. We own your homeland and we will let you stay there. As long as it suits our policies. And B, one of our policies is that we're in total control. The states can't do anything about this because we want to control the parceling out of the land of the continent on which you and many other indigenous peoples live. So land is the key thing. And if we can jump way up till the present day, since you referred to this, it just happened in the last couple of years and of course it did. The McGirt case. The. Let me.

[Peter d'Errico]

If we could just hold there, because I want to talk about the implications of that. But if I understand you, I mean, it is. There is. It's not quite a circular reasoning, but it's almost like the analogy I can think of is like a sort of. Is a schizophrenia in some way because there is a just a fundamental assumption that is made that is wrong.

[Sam Cedar]

Yes.

[Peter d'Errico]

But once that fundamental assumption is made, everything logically follows from that. And so the martial doctrine, if I understand it correctly and correct me if I'm wrong, states basically because you're not really. We've made negotiations and treaties and laws around you as a people, but because you're not actually a people, because we own all your land, which we already said that we did, then all of the rights that sort of emanate from you having been a people, and all the agreements that you sort of entered into, they don't really count because you're not really a people and you don't qualify because we owned your land, which had defined you as a people. And therefore everything that emanates from that was basically, you know, in a sort of reverse, the fruits of a poison, you know, the seeds of a poison fruit from that. And the original mistake was to actually give you rights in the first place. And therefore none of the actual rights that derive from that are legitimate because it was founded on a sort of a foundation that was unsustainable. And the reason why that foundation is unsustainable is because God basically said that we had to land.

[Sam Cedar]

Yep, absolutely. And you know, it is, I think schizophrenia is. I use that phrase in the book. And actually Clarence Thomas, of all people, has pointed this out. He said there really is nothing. There's no basis for the claim that the US has what's called in the law, plenary power. There's no basis in the law for that. And it's really surprising that this person who's the very conservative justice is the one who's taking the most radical position regarding US Claim that it has total power over native peoples. But that schizophrenia you see it over and over again once you become attuned to it. So there's a, a standing rock case before the big standing rock case. The standing rock case in the beginning was when the dam was built that backed up the river, under which some later time the pipeline was, was going to be laid. All right, so that original case was the violation of a treaty with Standing Rock that said, they shall have this land forever. And the judge in that case, it was. It's kind of like a Stooges thing. He's trying to figure out. He knows he has to come to the conclusion that the US Is going to be able to wipe this treaty out. But the treaty says that it's forever, and it says the US has pledged its highest honor. And he goes through this incredibly convoluted reasoning, trying to fight himself out of the paper bag of how do I explain what I'm about to decide here? Because it says forever, but it's not going to be forever. So what is it going to be and what does forever mean? And he's just as puzzled as a person could be trying to figure out a logical conundrum that doesn't really have an answer because its premises are what's problematic. And that once you've accepted those premises, then as you said, you're in a kind of an endless loop going around saying, oh, it says that you have these rights, but then you don't really have these rights because we said you did, but we also say you don't. And so since we're in control, anything we say is who's going to say, who's going to speak against us. I think Lady Macbeth says something about who is there that could challenge our power. We don't have to worry.

[Peter d'Errico]

And at one point you make the point that, you know, as we get through this Marshall doctrine, I mean, this is, this is a 2005 opinion where Ruth Bader Ginsburg references the Martial doctrine, if you will, and in the Oneonta Nation case, tell us about that case. But what's fascinating is how.

[Sam Cedar]

The, the.

[Peter d'Errico]

Genesis of the Martial doctrine is completely left out.

[Sam Cedar]

Yes. Oh, my God.

[Peter d'Errico]

And the way that you refer to it and have it be instructive in any given case is by not referring to the substance and the genesis of the Martial doctrine, but simply like Marshall. I mean, you know, this is a long standing doctrine. We don't question at this point. You get far enough out. You don't have to question the development of that doctrine. But talk about that because it's Ruth Bader Ginsburg, who I would assume most people would be like, oh, no, she would have a problem with this.

[Sam Cedar]

Exactly. This is why it's so surprising. And you can. This is why I also emphasize this has nothing to do with, with left versus right, liberal versus conservative. 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. It's like a footnote in her opinion. It's not even something she had to quarrel about or I mean, quibble about. And it's exactly the way precedent works. This is the way precedent works in any case, not just in this area of law. Precedent is you cite the case that says such and such, and then if you want to, you can do citation trails, which I've done and I have some in the book you trace about, well, how. Where did that decision. You followed that back. Where did that one. Every one of these cases, including the 2005 Oneida case, has direct connections back to Johnson v. McIntosh. But the lawyers don't need to talk about that. The judge doesn't need to talk about. It's a rare judge like that federal one that I just mentioned in this early Standing Rock case who actually makes the mistake of thinking I'm going to walk through this quicksand to come out the other side. So it's just that was what just got ruled in the 8th Circuit. And nobody says, well, where did the 8th Circuit get. Oh, they got it from, you know, the Supreme Court in war. Well, where did the Supreme Court get it there? You don't. That's not what precedent is all about. And so law functions that way. Generally, it's working out of. It's a sort of mental set of mental habits. And in general, people praise that quality about law. They say, well, this means that the law is not going to change all the time from case to case has to do the same thing as you did in the case before. But when you get into maybe this law is not making sense, then you have to look at the president and this the example people are most familiar with would be Brown versus Board of Education. You know, the just the doctrine of separate but equal. And in that case, the time had come for a number of reasons, which would be another whole discussion, to say the US can't have this law anymore. We have to figure out how we're going to get rid of it. And yet 13 months later, the Tihetan case, the Tlingit Indians had sued the US On a land issue. The Same Supreme Court, minus one who had died, said, the doctrine of Christian discovery is still valid law. So 13 months before, they had thrown out a major racist, domineering doctrine, and now they were reaffirming one. And what I found in my research was that what I think of as a smoking gun, it was the case that confirmed Christian discovery, but dropped the word Christian and just talked about discovery. And I found in the memos of the court prior to the issuance of the decision that they were debating with each other whether or not they should include the word Christian. And some of them had no problem with it, saying, yes, it's a Christian country, always has been. And others were saying, it's kind of like we're getting on some thin ice here. And ultimately they, at the 11th hour, Stanley Reed, who was the author of Majority Opinion, he sent a memo to the rest of the justices saying, I've decided I'm going to pull the word Christian out of this sentence. And so.

[Peter d'Errico]

And this case was the.

[Sam Cedar]

This is t hit ton versus United States. It was a Tlingit band who had had lumber taken by the US to be cut up and made into pulp for newsprint by some contract that the Agriculture Department had made. And the Tling had said, you owe us money. That's our timber. And they sued for that. And the Supreme Court, after, you know, the time it takes years to get up to the Supreme Court, Supreme Court says the US does not owe you any money at all. Because under the relevant precedent, this is where they decided they weren't going to say Christian discovery. They just say under the relevant precedent of discovery. And they do cite Marshall. They say under that principle, you don't own the timber. As a matter of fact, you don't own the land. You only live there by the grace of the sovereign is the actual phrasing. So it's stunning. Now, that's 1955. And we're thinking, well, wait a minute, 1823, let's see, in 1490, I mean, how far back these leaps in time they're taking. And so now you go from that to, you said 2005. Then you get into just a couple of Years ago, the McGirt v. Oklahoma case. And here's where the confusion comes in again, Sam, is that these cases are not only sort of. The doctrine is not only sort of invisible, but it is sometimes celebrated because the McGirt case was held, the media all over the place. Great win for the Creek Nation, the Choctaw Nation. Great win.

[Peter d'Errico]

Just tell, just to remind people of what was at the issue, at that.

[Sam Cedar]

Case issue was that there's Native guy who is arrested and charged and convicted of a sex crime in Oklahoma courts. And at some point, he and his lawyers say, well, wait a minute, he shouldn't have been tried by Oklahoma because he's in it. He's Native guy. He's in Indian country within the treaty, original treaty lands. So this is not a state criminal matter. And. But the. The thing that most people missed, including all the media that I saw, 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, but the federal government, because there's an act called the Major Crimes act, which is one of the examples you were talking about how the rules change. The Major Crimes act was passed by Congress saying, well, we don't really have any basis in any of our treaties or anything else to pass criminal laws for you guys, but we're going to do it anyway. And the Supreme Court upholds that. And they say we can't find anything in the Constitution to uphold it with, but we're just going to uphold it because it has to be this way. They literally almost in exactly those words. So in Oklahoma, in The case of McGurvey Oklahoma, the Supreme Court in a very divided court. This is Gorsuch's writing opinion. They say, no, since it's Indian country. And that was the question, is it really Indian country or not? And I'll say something more about that in a minute. But since it's Indian country, Oklahoma has no jurisdiction, and the federal government does have jurisdiction. And what's the basis for that? Gorsuch doesn't even use the word discovery he used. He just refers to a text without quoting it. An 1868 or something text, property law text. There's where the language is when the Christians discovered. But he doesn't want to get his hands dirty with that. So he just says, oh, that's the precedent for it. And then he cites another case, Lone Wolf, it's called. It's the case that came up with the phrase plenary power. But he also doesn't quote lone wolf. So the. The doctrine is getting more and more as it becomes more contentious. So many people are thinking like discovery, Christian discovery. What's that all about? What's colonialism all about? The court is.

[Peter d'Errico]

Has been whitewashing. Is whitewashing. I mean, it is essentially like, you know, if there is a rock under a piece of carpet, if you layer enough carpets onto it, there's A slight bump, but you don't know exactly what it is that's underneath there. And that's what they want to obscure that these things that were once considered Christian dominion then go to discovery, dropping the Christian, then just simply go to precedent. And we don't even establish like what that precedent means. And I wonder like, you know, the, in this instance, I mean when we, when we talk about sort of like, you know, other dynamics that start with colonialism and that colonialism at that time was sort of like justified under, under religion and it then became sort of more rationalized through capitalism in many respects. In this instance this is running parallel to that. But in, in lieu of capitalism, it is legal doctrine and precedent that is really sort of becoming the domestic, if you will, rationalization for this and really just obscuring what is fundamental to this. Right. Because as you say in the McGirt, it is, it is saying that the, the state did not have auspices in this instance recognizing the so called sovereignty of the Indian land. However, that sovereignty does not exist in the context of the federal U.S. government. And so it's reinforcing the fact that you may have sovereignty relative to the state, but that's only because you actually are subject to the federal government in which you have no sovereignty. So it's really, this is an argument not between whether Indian land has sovereignty, but rather which trumps state or federal law in terms of having this jurisdiction.

[Sam Cedar]

You know, one of the most interesting ways, kind of a lens through which to view US history, the ongoing, even today long struggle between states and the federal government is to see the role. It's like the so called Indian issue runs like that as a thread through the entire thing. The battle, and we saw it at the very beginning talking about Cherokee Nation v. Georgia. It's a battle for supremacy over who's going to be in charge of the real estate. And the feds make it clear through the court, we're going to take the power, we have the power of the crown. Georgia was claiming the power of the crown too, because they had a grant and so was Virginia for that matter. But the court says, well you don't, that doesn't matter anymore. Only the US Crown is going to be the one that we have here. And as the west was developed and new states were formed, over and over again, the questions, the rivalry between a centralized federal power and localized state powers was fought over control of lands. And of course, who's on the land? It's indigenous people. So there's an interesting way of looking at how did the federal government get to this position of tremendous power if it had not had the issue of so called Indian land to deal with, if it hadn't had the Indian land, the Cherokee Nation there, which was its subordinate, you know, partner in this deal, if it hadn't had that, what would have said about Georgia? That's the time when secession was starting and the heat was really being turned up about whether or not there was really a union that the states had to belong to or whether they could depart from the Union. And so the question about Cherokee land and the rest of it and Indian territory that was all wrapped up with it, what if that issue didn't exist? How would that have played out? Under what rubric? Would there have been a battle like, no, you joined the Union and so you can't leave it. It's. No, you don't really, you don't have the highest title here. The US has the highest or the deepest title to this continent.

[Peter d'Errico]

Oh, that's fascinating. So in some ways when we talk about, when we talk about the Indian Removal act and the, and the subsequent legal proceedings, this is also, it's a twofer. On some level it is reinforcing. If I understand what you're saying, you're reinforcing the federal domination and essentially complete ability to negate any treaty or whatnot. Because even the, the fundamental meeting of the minds that existed that created that treaty was illegit because you didn't really have a mind, you didn't really qualify to enter into that agreement because the land was ours anyways by divine right, it's functioning for that purpose. But the other utility of it is, is a way to subordinate potential states that were looking to secede by saying, you don't have power over Indian land, we do. And therefore your claims over indigenous people are null and void if you want any type of movement. In other words, if you want to get that land in Georgia and Alabama so you can start to grow cotton and you need to get rid of Indians there and send them on the Trail of Tears, you need to come to the feds because. And this will cement your subsidiary relationship to us. So it was a two for, for the federal government, both a function of, of colonization, but also colonization as almost like you got to pay a. You know, this is the, the vague. Essentially you get the land, but you also understand that we're the capo.

[Sam Cedar]

Yeah, exactly. Oh, that's really great. I like that analogy too. You know, I was involved with the Western Shoshone case, United States against Nye county started out because Nye county, this is in Nevada. Nye county was claiming that it actually was in control of a particular area of land and they wanted to bulldoze a road. And the feds came in and said, you're bulldozing federal land. That's federal land there. You can't do that. We're in control of that. That's public land, quote, unquote. Public, meaning the US has it. And so Western Shoshone National Council contacted me and said, you know, this is really Western Shoshone land. Isn't there anything we can do? And I said, well, yeah, there's a very easy method. It's called third party intervention. And federal rules allow when two people are fighting over the cow and the third person says, well, you're both fighting over, it's really my cow. I'm going to intervene in the lawsuit and I'm going to prove it's my cow and you both lose. So as soon as the Western Shoshone filed that pleading, guess what happened? The US And Nye county sat down and said, we're going to make an agreement here. We're going to settle this case. And so within weeks or a few months, the case became moot. And the appeals court said that the Western Shoshone no longer. There was nothing to intervene in anymore.

[Peter d'Errico]

And the idea is they don't want to give the Western Shoshone the opportunity to prove their claim to that lamb trumps. Because this is, I would imagine that this is becoming more and more tenuous as time goes on because it seems that, like, what has, what has been the history of this country is simply to abuse the lack of political power by indigenous people and awareness of, like, history. You know, there's almost been like a, you know, some type of version. Like what. What happened with Marshall is almost sort of like analogous to the Dunning School on some just like obscuring history so that there is no modern need to contend with it. Yes.

[Sam Cedar]

And so if I can say here's one of the things that it's a kind of a, I guess you could call it a pet peeve. But it's really part of my analysis, which is that we see over and over again today, and it's happening now in preparation for next year's elections is celebration mostly on the left about, wow, there's more Native candidates this time than ever. And there's. And Cornel west for third party is coming in saying, I'm going to build a block of Native voters. And to the extent that Native People participate in that. They're participating in that whole assimilation project because back the boarding schools were created with that aim in mind. If you read the rhetoric of the Friends of the Indian and the Lake Mohawk Conference where these things were being concocted, the boarding schools, Colonel Henry Pratt, he's the guy who said, kill the Indian and save the man. And what that meant was get rid of Indian nests, get rid of Indian peoples. And he actually said, you have to get rid of the land base. There cannot be a communal land base. It will always have problems. And then you can save the Indian, you can save the person rather than. And kill the Indian.

[Peter d'Errico]

Right?

[Sam Cedar]

And that whole process, he celebrated and the Friends celebrate. One day they will be civilized and one day they will participate in our political process and they will run for office. And it's almost like, well, this is what's happening right now and it's been bought. This is why I call it a peeve, is that you'd think that somebody who's thinks of themselves as progressive and they're looking at history and they're thinking analytically, and they're not just like, oh, oof, I don't want it. I don't like those people. You'd think that they would pick up on this because it's not really that subtle, if you understand the history. And maybe they've never really thought about that history. They say, oh, boarding school, bad thing. But they didn't really think about, what did the boarding school mean? It meant a forcible assimilation. And so what does it mean when you see assimilation? And this can involve people? Deb Haaland, Secretary of the Interior they're very high. The treasurer of the United States, Malerba, she's a native person. I don't think people are even thinking about this. What does that mean? And I often think maybe they're actually guerrilla fighters. Maybe they're working their way into the federal bureaucracy so they can take it over. But it's certainly not standing for a land base. It's certainly not saying indigenous peoples have that. If there's going to be, let's Oak Flat, where the copper mine is going to be, or Thacker Pass, where the lithium mine is being proposed. If that's Apache land, which it supposedly is, and if the other is Paiute and Western Shoshone land, it's up to them to decide whether or not there's going to be a mine here. But instead, this doctrine of discovery and so forth and Christian supremacy, the US Simply passes a law and says Oak Flat no longer belongs to. It's not even that it ever belonged, of course, but it's no longer part of Apache territory and now belongs to this gigantic mining corporation. And Thackeray Pass belongs to Lithium America. It's not really part of the Western Shoshone land. And so we have. All of that is happening right now in real time and it all involves the land question. And it's being somehow looked at as an environmental problem, but not as an indigenous sovereignty problem. Everybody thinks, oh, we've taken care of that because look at all these people. They're running for election, they're getting elected, they're in office. The Indian problem is being solved. It's being quote, solved by exactly what the boarding schools were set up to do. Now, I think that's a very interesting thing to think.

[Peter d'Errico]

Yeah, I mean, I think that's a, that may be like for a different day because I would argue that like, while you may be fulfilling the assimilation. Assimilation agenda by, let's say, putting three indigenous people on the Supreme Court, that might bring about a very different interpretation and give you an opportunity to reverse a precedent now. No guarantee. I mean, I think that, you know, there's an analogy on some level, although it's far cruder in terms of like Barack Obama signaled that racism was over when he became President of the United States. There's not the same sort of dilemma and of this agenda to assimilate out of existence Indian culture so that there would be no indigenous claims to the country. But I mean, that, that raises an issue. But I think, you know, the, the, the. It would be an interesting dilemma if there was a broader awareness under the auspices in which the United States feels that at any given turn that the law is able to overturn the sovereignty and the claims of indigenous people. If there was a broad awareness of what the foundations of that were and how shaky they are, particularly in today's world. If the opponents or the proponents of the God given right of Americans to control that and the federal government to control that land cited. Deb Haaland is the Interior Secretary now. So we don't, you know, she's admitted that the, you know, she's just a part of the American system and therefore those claims are. That would be a little bit awkward, I think. I mean, as a political matter. Yes.

[Sam Cedar]

I had a conversation with a Commissioner of Indian Affairs, Assistant Secretary of the Interior a few years ago and we were just talking and we was at dinner together and I said, you know, it's always been pretty clear that this position is Just colonial administration. And he said, well, that's true, but publicly he's not going to say, I'm the chief colonial administrator. But it was the old British model of indirect rule. You get the colonized people to have leaders from among them who carry out the aims of the empire. That's why I've always been skeptical about, oh, if we just put enough, like, if we had. People have said this for a long time about women. Well, Sandra Day o' Connor is a woman. I mean, Margaret Thatcher is a woman. She's not actually a very good example of like kind and gentler. And so I think if we're thinking about the issue the way you're saying, if people knew the history, that we'd also look around the world where these same issues are going on around the world. Indigenous peoples around the world are in the front lines of this whole lithium craze that supposedly is going to be an ecological boon, but it seems like quite a disaster. It's just more extractive economy for profit. Brazil just recently had a major victory in favor of indigenous people. Ecuador also, I had an amicus brief in the Ecuador case, so I'm happy to have had something to do with that. But so there's been action at that level of the courts in other places. And so it's not as if it's plan in term, planetary terms. It's not inconceivable at all. But within the US there's a kind of a mesmerization that has gone on. And of course, on top of everything, we're talking about you and I right now, part of the mesmerization is don't think about anything really. Let's watch some more tv. Let's watch that situation comedy. Let's go watch that quiz show. It's kind of a complete absorbing of brain power. I don't want to think about something hard like history. My colleague at the University of Massachusetts, years ago, he came up with a disease theory of people having selecting classes. When he suddenly heard, when a student said, oh, I've had history, and he started laughing, he says, oh, so you're not going to get it again then, is that right? You've had history, so no problem, you're done with that. And I think that there's too much of that that obscures these very tricky problems. Once you see them. I think once you see. That's what I'm hoping my book does. 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. No matter that it's not talked about generally I want to talk about it that way. So once you see that, then you can start pulling these pieces together. But if you're not interested in looking at it and you just say don't bother me with that and especially if you add on a certain kind of racist superiority, you know, whatever you want to call it, saying those people are just too stupid anyway, I mean they really are savages just like we always said or whatever other language gets used or emotional tinges get added to it, then, then it's hopeless. So the conversation we're having is really quite significant, I think.

[Peter d'Errico]

Well, I will say this that you know, one of the things I found in an era of where, you know, when I think of the Supreme Court is mostly despondency that KBJ in the, in the recent like I think it was the affirmative action case where she was was talking about the. And maybe it was voting rights as well. I'm not quite sure the escapes me but a reminding people the foundations of the 14th Amendment and the 13th Amendment and the 15th Amendment and that it was not a colorblind amendment to the Constitution. It was a recognition of, you know, it was specifically a response to having people who had been slaves specifically colorblind, I mean color conscious measure to make these people full citizens. Moments like that I think can. Can open up a lot of eyes and I hope that you know your book and maybe somebody who's in a position of making that argument in a future case has the opportunity to read it. Peter d', Errico Professor Emeritus Legal Studies, University of Massachusetts Amherst the book is Federal Anti Indian Law the Legal Entrapment of Indigenous People. We'll put a link to that at Majority FM and our podcast and YouTube description. Really fascinating work. I thank you really so much for joining us.

[Sam Cedar]

Sam, this has been a wonderful conversation. I really appreciate the chance to talk with you.