S02E03 - Johnson v M'intosh and Federal Anti-Indian Law with Peter d'Errico

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Introduction

We begin this episode with a land acknowledgement. Our hosts Prof. Philip P. Arnold and Sandy Bigtree (Mohawk Nation), begin by introducing our guest Peter d’Errico. He is Professor Emeritus of Legal Studies at the University of Massachusetts, Amherst. He is a regular blogger, and frequent guest on the Red Thought series. Most recently, he is the author of Federal Anti-Indian Law: The Legal Entrapment of Indigenous People (New York: Bloomsbury, 2022). He is a member of the New Mexico Bar and was a staff attorney at the Diné Legal Services. He has litigated indigenous land claims, fishing rights, and native spiritual freedom rights in prisons. He regularly presents online seminars about indigenous peoples’ legal issues at redthought.org and elsewhere, including National Endowment for the Humanities, and summer Institutes for Teachers on teaching Native American histories. D’Errico was prompted by JoDe Goudy, former chair of the Yakama Nation, to write this book. The book opens with a powerful personal reflection by d’Errico on his personal investment in the topic.

Bigtree and d’Errico begin the episode by telling their personal stories and how they came to work on dismantling the Doctrine of Discovery. These stories help to highlight how the personal, political, legal, cultural, and religious dimensions of life flow together and guide us toward our interests and investments. D’Errico concludes by saying he realized that because he is a human being and wants to support justice for all beings, he should be allied to and support Indigenous nations and peoples.

Show Notes

The Marshall Trilogy

Moving into a discussion of Chief Justice John Marshall’s cases, including Johnson v M’Intosh, Arnold compares and contrasts d’Errico’s perspective to Lindsay Robertson (S2E1), and Robert J. Miller (S2E2). In d’Errico’s analysis, “Johnson v. M’Intosh sets the premise that native peoples do not and cannot have title to the land once a Christian discoverer has come onto the scene.” In Cherokee v. Georgia, the Cherokee nation appeals to the Supreme Court, arguing that the courts have a duty to help protect them against Georgia, and Marshall is faced with a dilemma because both the Cherokee nation and the US claim title to Cherokee lands. Ultimately Marshall ignores the Cherokee Nation’s argument and concludes that the Cherokee Nation does not own land; they do not have standing to bring the case, and he ignores the treaties completely. Johnson’s argument in Cherokee v. Georgia raises questions for d’Errico about Johnson’s so-called brilliance in legal argumentation.

The third case of the trilogy is Worcester v. Georgia. As other guests have already highlighted, this is a confusing case because Georgia tries to argue that neither the Cherokee nation nor the U.S. have jurisdiction and say over Cherokee lands. To support the federally funded mission to the Cherokee nation and protect the missionaries from the state of Georgia, suddenly Marshall cares about treaties. D’Errico argues that most people stop reading at the part where Marshall affirms that the Cherokee nation is a nation unto itself, and what they often miss is Marshall saying that only the Cherokee nation and Congress can authorize parties to enter Cherokee lands (U.S. 531). While Marshall tries to walk back some of his earlier jurisprudence, that is overshadowed for d’Errico, by Marshall’s conclusion that the Cherokee nation are not a real nation but a domestic community or a domestic dependent nation (U.S. 583) and that the relationship between the Cherokee nation and the U.S. is more like a guardian and a ward (U.S. 520). This leads d’errico to conclude that when the Marshall Trilogy is evaluated as a whole based on the written text and the historical and legal impacts, it is reasonable to conclude that what the trilogy actually creates a system of domination through law. One that is designed to try and undermine Indigenous sovereignty and flourishing.

The Church and Residential Schools

Another important element of the Marshall trilogy is that it highlights how the church and state worked together to Christianize and “civilize” Indigenous nations and peoples. While it is challenging to see in these legal cases their harmful collaboration, this becomes much clearer when one examines residential schools like the Carlisle Indian Industrial School, which was founded on the motto “kill the Indian, save the man.”

1790 Non-Intercourse Act

An often-overlooked part of Indigenous nation’s relationship with the United States is the role of commerce. This act is a critical element of the U.S. attempts to regulate Indigenous commercial activity and to subsume Indigenous economics into consumer capital.

Papal Bulls

Arnold turns the conversation from commerce towards the papal bulls undergirding the Doctrine of Discovery and their paradoxical use in a putatively Protestant nation-building project by the United States and Marshall. One of the things that is often confusing to people is that while Protestantism represents a break from Catholicism theology, there are many ways in which that break was incomplete or not a break at all. As Arnold highlights, the primary reason that Protestantism would preserve pieces of Catholic theology and law was power. The Church of England broke away so Henry VIII could have more power, and there was no need to create a separate Protestant theology of power and domination when they could just continue to appropriate the Roman Catholic one. Our hosts and guest agree that the foundation of the anti-Indigenous nature of U.S. law is what Steven T. Newcomb calls the domination code of Christian theology and law.

McGirt v. Oklahoma

While many are celebrating this case as a win for Indigenous nations, d’Errico finds that to be premature and thinks that the case actually has more in common with the Marshall Trilogy than might initially be seen at first glance. The real issue at play in the case is who has sovereignty over Indigenous nations and their territories. The case assumes of course, it is not Indigenous nations but a contentious fight between the federal government and the state. The underlying structure and rationale of the case is that it is the federal government that should have jurisdiction, not the state. The case cites Washburn’s treatises which is a more obscure source but upon investigation, this source also relies upon the power of Christian discovery. Therefore ultimately McGirt was a decision in favor of federal power over and against the state, not an affirmation of Indigenous sovereignty.

Indian Child Welfare Act (ICWA)

This act was recently before the Supreme Court and the court acted as d’Errico predicts here to protect federal jurisdiction, power, and authority over and against Indigenous sovereignty.

Federal Anti-Indian Law:  The Legal Entrapment of Indigenous People

Hardcover: 978-1-4408-7921-0 / eBook: 978-1-4408-7922-7 Buy Now

Book Summary

Telling the crucial and under-studied story of the U.S. legal doctrines that underpin the dispossession and domination of Indigenous peoples, this book intends to enhance global Indigenous movements for self-determination.

In this wide-ranging historical study of federal Indian law-the field of U.S. law related to Native peoples-attorney and educator Peter P. d’Errico argues that the U.S. government’s assertion of absolute prerogative and unlimited authority over Native peoples and their lands is actually a suspension of law.

Combining a deep theoretical analysis of the law with a historical examination of its roots in Christian civilization, d’Errico presents a close reading of foundational legal cases and raises the possibility of revoking the doctrine of domination. The book’s larger context is the increasing frequency of Indigenous conflicts with nation-states around the world as ecological crises caused by industrial extraction impinge drastically on Indigenous peoples’ existences. D’Errico’s goal is to rethink the role of law in the global order-to imagine an Indigenous nomos of the earth, an order arising from peoples and places rather than the existing hegemony of states.

The episode concludes with a discussion of d’Errico’s book and the impact that it is already having on legal studies. Please recommend this book to your college, university, and local library to add to their collection.

Resources

Primary Sources

• 1790 Non-Intercourse Act
• Johnson v. M’Intosh – Cornell Law
  • Our Canopy Forum series
  • Our podcast series
• Cherokee Nation v. Georgia
• Worcester v. Georgia
• Tee-Hit-Ton v. United States
• Lone Wolf v. Hitchcock
• Yakama Nation Amicus Brief
• McGirt v. Oaklahoma
• A treatise on the American law of real property by Emory Washburn
• Basic Call to Consciousness

Further Reading

• Indian Residential Boarding Schools
• Papal bulls
• ICWA - Indian Child Welfare Act (ICWA)

Connect with Peter d’Errico online

• Personal site
• Substack
• edu
• Federal Anti-Indian Law: The Legal Entrapment of Indigenous People (New York: Bloomsbury, 2022)

Credits

• Music: Onondaga Social Dance songs performed by Orris Edwards and Regis Cook
• Producers: Jordan Loewen-Colón and Adam DJ Brett
• Show notes: Adam DJ Brett

Citation

Philip P. Arnold and Sandra Bigtree, “S02E03 - Johnson v M’intosh and Federal Anti-Indian Law with Peter d’Errico,” Mapping the Doctrine of Discovery (Podcast), July 13, 2023. https://podcast.doctrineofdiscovery.org/season2/episode-03/.