[News] Shaky Ground: How the United States Uses the Law to Steal Indigenous Land

[Anti-Imperialist News]

inthesetimes.com
<https://inthesetimes.com/article/shaky-ground-derrico-indigenous-law-land>
Shaky Ground: How the United States Uses the Law to Steal Indigenous Land
Stephanie Woodard <https://inthesetimes.com/authors/stephanie-woodard> April
26, 2023
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In *Federal Anti-Indian Law: The Legal Entrapment of Indigenous Peoples*,
Peter d’Errico exposes the capriciousness and hostility with which the
United States uses the law to apply — or deny — justice to the original
peoples of this land.

“When we enter a realm called ‘federal Indian law’ … we are entering
a semantic world created by the United States to control Native peoples and
claim their lands,” writes d’Errico, an attorney and professor emeritus at
the University of Massachusetts-Amherst.

Despite its confusion and contradictions, federal Indian law — in
d’Errico’s terms, “anti-Indian law” — has long had an unchanging purpose.
By destroying Native individuals and communities, it has helped the rich
and powerful scoop up vast lands and resources. This landgrab is
accomplished in part because what’s typically called federal Indian law is
hardly a systematic set of statutes. Instead, according to d’Errico, it’s
what mid-20th-century U.S. Supreme Court Justice Felix Frankfurter called “a
vast hodge-podge” and covers all areas of Indigenous life and activity with
a massive array of U.S. court decisions, laws, executive orders and agency
regulations that have piled up over the years in a disorderly and
improvised fashion.

Kent McNeil, a professor emeritus at Osgoode Hall Law School at York
University in Toronto, calls d’Errico’s *Federal Anti-Indian Law*
<https://bookshop.org/p/books/federal-anti-indian-law-the-legal-entrapment-of-indigenous-peoples-peter-p-d-errico/18333155>
“a frontal attack on the whole field of American law pertaining to
Indigenous peoples.” He lauds it as a “must-read” for those wanting to
understand what motivates any claims that the dispossession of Indigenous
people has been legally sound. Similarly, Robert Maxim, a senior research
associate at the Brookings Institution and a Mashpee Wampanoag tribal
citizen, hails the book as “important and enlightening for all people,
Indigenous and non-Indigenous alike.”

Throughout the chaos, the application of U.S. law to Indigenous people has
had an unflinching goal: theft.

By marginalizing Indigenous peoples and their rights under their treaties —
and, since 1924, as full citizens of the United States — federal
anti-Indian law has served the rich and powerful. These include the
earliest American leaders. George Washington, Thomas Jefferson and many
others profited handsomely. And they knew they had to work fast: According
to Washington, anyone “who neglects the present opportunity of hunting out
good lands … will never regain it.”

The United States, writes d’Errico, is “a land office business,” all about
profiting off land. Or, as Washington warned: You snooze, you lose.

Our first president’s maxim is still true today. When I wrote “How the U.S.
Government Is Helping Corporations Plunder Native Land
<https://inthesetimes.com/article/the-plunder-never-stops>” for *In These
Times* in 2016, the article was about a Navajo family that was struggling
to shut down an oil pipeline that had been crossing its land for decades.
Meanwhile, non-Native companies and individuals throughout Indian country
were profiting off Native land to the tune of billions of dollars as they
grazed animals, planted crops, felled timber, dug up minerals, extracted
oil and gas and more.

D’Errico’s writing is informed by his experiences starting in the late 1960s
as an attorney for the primarily Navajo clients of the nonprofit legal
service, Diné be’iiná Náhiiłna be Agha’ diit’ahii
<https://dnalegalservices.org/about/>, which was located on the Navajo
Nation at the time. He continues to this day to litigate Indigenous cases,
including on behalf of Native prisoners’ freedom of religion, Mashpee
Wampanoag fishing rights and Western Shoshone land rights. A graduate of
Yale Law School, he co-founded the legal studies department at
UMass-Amherst and taught there for 30 years.

The Supreme Court has long provided legal cover for those who wish to wrest
land and resources from Indigenous peoples. In the early 1800s, the court
declared in three opinions—*Johnson v. McIntosh*, *Cherokee Nation v. State
of Georgia* and *Worcester v. State of Georgia*—that Native peoples did
not, in fact, own their land but were mere “occupants” if Christians
had “discovered”
it; that Native nations were “wards” of the United States; and that the
United States had “ultimate dominion” over all Native land and peoples.

The opinions’ primary author was Chief Justice John Marshall. A devout
Christian, he ignored the Constitution’s imperative to separate church and
state. He pointed to Christianity as the rationale for dominion and — after
religious conversion of “heathen” Natives — the compensation for
their losses.

Marshall knew he was on shaky ground. D’Errico quotes him conceding that
the claims of one opinion were “pretensions” that existed “nowhere else.”
This was not ordinary law, but the suspension of law, d’Errico says.
Marshall had carved out an exception to property law, proclaiming that
Natives, as inferior people, had “diminutive rights”: They might inhabit
land but did not own it.

The opinions had an historical model. Fifteenth-century papal bulls
directed Christian monarchs to “invade, conquer, fight, subjugate” lands
owned by non-Christians and reduce the inhabitants to “perpetual
servitude.” The bulls described colonization as a transaction: salvation
for those Christians who contributed money or combat skills and
excommunication for those found taking anything “except expenses and
salaries.” The bulls also described map coordinates establishing which
nations owned what discovered, or “hitherto undiscovered,” land.

In March 2023, the Vatican tried to wriggle out of accountability for
colonization’s devastating and ongoing effects on Native communities. Two
Vatican departments — for Culture and Education and for Promoting Integral
Human Development — announced in a joint statement that the papal bulls “were
manipulated for political purposes by competing colonial powers in order to
justify immoral acts against Indigenous peoples.”

No way, says d’Errico: “The bulls were explicit marching orders to conquer
and convert.” Nevertheless, he welcomed the attention the Joint Statement
brought to Indigenous issues — despite the problematic claims.

The Vatican’s press office responded to *In These Times’s* request for
comments and clarifications by pointing to a *Vatican News* interview
<https://www.vaticannews.va/en/vatican-city/news/2023-03/czerny-on-doctrine-of-discovery-statement.html>
in which Cardinal Michael Czerny expressed sorrow for the ongoing effects
of colonization, saying that “the Holy Father condemned in the *strongest*
terms *any* imposition by one culture over another.” Czerny also dismissed
the church’s historical violent language about Indigenous people as
comparable to what the church was saying at the time about women, Jews
and others.

Indigenous peoples have forcefully criticized Marshall’s doctrine. In a 2019
court filing, the Yakama Nation, in Washington State, called it racist,
genocidal and “a manufactured authority.” In a 1996 brief written by
d’Errico, Western Shoshones said it was “nowhere sanctioned in the United
States Constitution” and “wholly contradictory to basic principles of
human rights.”

Though Marshall admitted his opinions were “opposed to natural right,” he
also called them “indispensable,” d’Errico writes. The federal government
depended on the lawlessness that the opinions authorized in order to
burnish its authority over Native lands and peoples.

Tribal citizens died by the thousands after Congress passed the Indian
Removal Act of 1830, ordering certain tribal nations to trek from their
homelands to Indian Territory in what is now Oklahoma. Congress’s 1887
General Allotment Act broke up numerous reservations and transferred
portions of them to settlers, destroying age-old communal and seasonal
land-use practices. The mid-1800s to the late 1900s featured another kind
of annihilation: Native youngsters were required to attend notoriously
violent boarding schools where staff tried to beat their languages and
cultures out of them.

Decades after the Marshall opinions, *Lone Wolf v. Hitchcock* and other
high court decisions went even further, proclaiming Congress’s plenary — or
absolute — power over Native peoples. As a result, Native peoples were not
just subordinate to the federal government but also dependent on
politicians’ unpredictable ambitions and deal-making. This was not because
their treaties or the Constitution said so, but because the Supreme
Court did.

Marshall was a land speculator as well as a judge, according to d’Errico.
Thanks to a passage concerning Kentucky in one of Marshall’s opinions, he
and his family established ownership of 600,000 acres there. Navajo
attorney Roberta Carol Harvey looks at the merciless application of
domination to timber resources in another book published in 2022, *The Iron
Triangle: Business, Government, and Colonial Settlers’ Dispossession of
Indian Timberlands and Timber*. Meticulously researched, Harvey’s book
details a litany of crimes — forgery, lies, bribery, collusion, massacres,
private wars of extermination and much more — that business and political
leaders committed as they amassed colossal sums by deforesting
enormous expanses.

“Corruption was part and parcel of the extravagant pretension of Christian
discovery,” d’Errico writes. Another way to think about it: Moneychangers
are welcome in this temple!

Liberals have been as eager as conservatives to utilize Marshall’s views of
domination and the resultant dispossession of Native peoples. The late U.S.
Supreme Court Justice Ruth Bader Ginsberg referenced the Marshall canon in
writing a 2005 opinion on an Oneida Nation matter. Like many contemporary
justices, she left out Marshall’s original assertion that Christianity was
the justification for dispossession. The 15th century religious foundations
of U.S. ownership of its lands are now “embarrassing” and are
typically “concealed”
by judges and attorneys, d’Errico writes.

The Supreme Court is still at it, according to d’Errico. He recounts the
court’s recent decision in *McGirt v. Oklahoma*, a dispute about
jurisdiction over crimes that had occurred on the Muscogee Nation, which is
within Oklahoma’s borders. The state claimed it had jurisdiction because,
in its view, the United States had acted over the years to disestablish the
Native nation, breaking up its original communal land ownership in favor of
individual ownership, eliminating portions of its government and more. The
Muscogee Nation countered that it had suffered “insults” but still existed.

The case made its way to the Supreme Court, which found, in 2020, that the
Muscogee Nation did exist but only because Congress had not explicitly
disestablished it. So, the tribal nation had jurisdiction over the crimes
in question. Curiously, reports d’Errico, “lots of people were thrilled.”
They apparently did not understand that *McGirt* was not a win for Native
sovereignty but a warning: The Muscogee Nation existed because Congress had
not yet exercised its absolute power to demolish it.

“Congress could do the dirty deed whenever it wished,” d’Errico writes.

Periodically, a program arises that appears to support Native people but
may instead be “extinguishment disguised as assistance,” according to
d’Errico. For example, from 1946 to 2006, the Indian Claims Commission let
Indigenous peoples sue the United States for compensation for land taken
from them in contradiction to their treaties and other agreements. This
process was intended to resolve hundreds of claims for land thefts going
back many years. The claims commission awarded a total of $1.3 billion over
the six decades it operated. For that relatively minor sum, given the
immense acreage involved, the commission enhanced U.S. control of the lands
in question.

The commission was a stellar example of the “legal entrapment” featured in
the subtitle of d’Errico’s book. The United States had devised a system
under which tribal nations lost irreplaceable treasure — land, resources,
sacred places and cultural identity — simply by participating.

Currently, tribal nations are awaiting a Supreme Court opinion on
a challenge to the Indian Child Welfare Act (ICWA). Passed by Congress in
1978, ICWA was intended to keep Indigenous children in their communities.
At the time, some one-third of Native children had been taken from their
families and placed with white families or in white-run group homes with
the goal that they lose their tribal identity and connections.

Today, many states still remove disproportionate numbers of Native
children, according to the National Indian Child Welfare Association. After
16 judges of the Fifth Circuit Court of Appeals heard the ICWA case and
issued 325 pages of conflicting and overlapping opinions, the matter went
to the Supreme Court, d’Errico writes. Supporting ICWA before the high
court are nearly 500 tribal nations along with many Native organizations,
states, child-welfare organizations and others.

ICWA’s challengers say the law is based on unconstitutional racial
preferences. The Native American Rights Fund (NARF), an Indigenous law
firm, disagrees. ICWA opponents disregard tribal nations’ identities as
political entities, not racial ones, NARF holds; the opponents also ignore
the harm done to children growing up without their language, culture,
family and community. Argued in November 2022, the case will likely be
decided this summer.

In d’Errico’s final chapter, he looks at a 2021 case filed by the Red Lake
Chippewa and White Earth Ojibwe. The suit aims to protect the rights of
Manoomin (or wild rice, their spiritual and culinary staple) to “exist,
flourish, regenerate and evolve.” He describes this effort to establish the
rights of nature as part of an Indigenous “call to consciousness.” With
climate change well underway and much U.S. land, water and resources
damaged by oil, gas and other extractive industries, heeding today’s
Indigenous critiques of colonialist, domination-influenced thinking is no
longer optional, d’Errico writes.

The lawsuit to establish Manoomin’s rights, the Standing Rock Sioux Tribe’s
struggle to safeguard Missouri River water and many more comparable Native
endeavors offer a crucial opportunity, according to d’Errico. The thinking
behind them can help all of us build a new form of law that isn’t imposed
but arises from the rights and obligations of an engaged,
responsible citizenry.

This, d’Errico writes, will let us “rearrange our relations with each other
and with the planet that we share with the rest of Creation.”

*Stephanie Woodard <https://inthesetimes.com/authors/stephanie-woodard>* is
an award-winning investigative journalist who writes on human rights and
culture. Her book *American Apartheid: The Native American Struggle for
Self-Determination and Inclusion* is based on more than 20 years of
reporting in Indigenous communities. She was an editor at major consumer
magazines for more than two decades.
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