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<a class="gmail-domain gmail-reader-domain" href="https://inthesetimes.com/article/shaky-ground-derrico-indigenous-law-land">inthesetimes.com</a>
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<h1 class="gmail-reader-title">Shaky Ground: How the United States Uses the Law to Steal Indigenous Land</h1>
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<a href="https://inthesetimes.com/authors/stephanie-woodard" class="gmail-text-red">Stephanie Woodard</a>
<span class="gmail-font-normal gmail-pl-8 gmail-auto gmail-font-sans">April 26, 2023</span>
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<img src="cid:ii_lgzd0mue3" alt="image.png" style="margin-right: 0px;" width="457" height="343"><br><p>In <em>Federal Anti-Indian Law: The Legal Entrapment of Indigenous Peoples</em>,
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.</p>
<p><span>“</span>When we enter a realm called <span></span><span>‘</span>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.</p>
<p>Despite its confusion and contradictions, federal Indian law — in d’Errico’s terms, <span></span><span>“</span>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-<span>20</span><sup>th</sup>-century U.S. Supreme Court Justice Felix Frankfurter called <span></span><span>“</span>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.</p>
<p>Kent McNeil, a professor emeritus at Osgoode Hall Law School at York University in Toronto, calls d’Errico’s <a href="https://bookshop.org/p/books/federal-anti-indian-law-the-legal-entrapment-of-indigenous-peoples-peter-p-d-errico/18333155" target="_blank"><em>Federal Anti-Indian Law</em></a> <span></span><span>“</span>a frontal attack on the whole field of American law pertaining to Indigenous peoples.” He lauds it as a <span></span><span>“</span>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 <span></span><span>“</span>important and enlightening for all people, Indigenous and non-Indigenous alike.”</p>
<p>Throughout the chaos, the application of U.S. law to Indigenous people has had an unflinching goal: theft.</p>
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<p>By marginalizing Indigenous peoples and their rights under their treaties — and, since <span>1924</span>,
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 <span></span><span>“</span>who neglects the present opportunity of hunting out good lands … will never regain it.”</p>
<p>The United States, writes d’Errico, is <span></span><span>“</span>a land office business,” all about profiting off land. Or, as Washington warned: You snooze, you lose.<br></p>
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<p>Our first president’s maxim is still true today. When I wrote <span></span><span>“</span><a href="https://inthesetimes.com/article/the-plunder-never-stops">How the U.S. Government Is Helping Corporations Plunder Native Land</a>” for <em>In These Times</em> in <span>2016</span>,
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.</p>
<p>D’Errico’s writing is informed by his experiences starting in the late <span>1960</span>s as an attorney for the primarily Navajo clients of the nonprofit legal service, <a href="https://dnalegalservices.org/about/" target="_blank">Diné be’iiná Náhiiłna be Agha’ diit’ahii</a>,
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 <span>30</span> years.</p>
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<p>The Supreme Court has long provided legal cover for
those who wish to wrest land and resources from Indigenous peoples. In
the early <span>1800</span>s, the court declared in three opinions—<em>Johnson v. McIntosh</em>, <em>Cherokee Nation v. State of Georgia</em> and <em>Worcester v. State of Georgia</em>—that Native peoples did not, in fact, own their land but were mere <span></span><span>“</span>occupants” if Christians had <span></span><span>“</span>discovered” it; that Native nations were <span></span><span>“</span>wards” of the United States; and that the United States had <span></span><span>“</span>ultimate dominion” over all Native land and peoples.</p>
<p>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 <span></span><span>“</span>heathen” Natives — the compensation for their losses. </p>
<p>Marshall knew he was on shaky ground. D’Errico quotes him conceding that the claims of one opinion were <span></span><span>“</span>pretensions” that existed <span></span><span>“</span>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 <span></span><span>“</span>diminutive rights”: They might inhabit land but did not own it. </p>
<p>The opinions had an historical model. Fifteenth-century papal bulls directed Christian monarchs to <span></span><span>“</span>invade, conquer, fight, subjugate” lands owned by non-Christians and reduce the inhabitants to <span></span><span>“</span>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 <span></span><span>“</span>except expenses and salaries.” The bulls also described map coordinates establishing which nations owned what discovered, or <span></span><span>“</span>hitherto undiscovered,” land. </p>
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<p>In March <span>2023</span>, 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 <span></span><span>“</span>were
manipulated for political purposes by competing colonial powers in
order to justify immoral acts against Indigenous peoples.” </p>
<p>No way, says d’Errico: <span></span><span>“</span>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.</p>
<p>The Vatican’s press office responded to <em>In These Times’s</em> request for comments and clarifications by pointing to a <a href="https://www.vaticannews.va/en/vatican-city/news/2023-03/czerny-on-doctrine-of-discovery-statement.html" target="_blank"><em>Vatican News</em> interview</a> in which Cardinal Michael Czerny expressed sorrow for the ongoing effects of colonization, saying that <span></span><span>“</span>the Holy Father condemned in the <em>strongest</em> terms <em>any</em>
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. </p>
<p>Indigenous peoples have forcefully criticized Marshall’s doctrine. In a <span>2019</span> court filing, the Yakama Nation, in Washington State, called it racist, genocidal and <span></span><span>“</span>a manufactured authority.” In a <span>1996</span> brief written by d’Errico, Western Shoshones said it was <span></span><span>“</span>nowhere sanctioned in the United States Constitution” and <span></span><span>“</span>wholly contradictory to basic principles of human rights.”</p>
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<p>Though Marshall admitted his opinions were <span></span><span>“</span>opposed to natural right,” he also called them <span></span><span>“</span>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. </p>
<p>Tribal citizens died by the thousands after Congress passed the Indian Removal Act of <span>1830</span>, ordering certain tribal nations to trek from their homelands to Indian Territory in what is now Oklahoma. Congress’s <span>1887</span>
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-<span>1800</span>s to the late <span>1900</span>s
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.</p>
<p>Decades after the Marshall opinions, <em>Lone Wolf v. Hitchcock</em>
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.</p>
<p>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 <span>600</span>,<span>000</span> acres
there. Navajo attorney Roberta Carol Harvey looks at the merciless
application of domination to timber resources in another book published
in <span>2022</span>, <em>The Iron Triangle: Business, Government, and Colonial Settlers’ Dispossession of Indian Timberlands and Timber</em>.
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.</p>
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<p><span>“</span>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!</p>
<p>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 <span>2005</span> 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 <span>15</span><sup>th</sup> century religious foundations of U.S. ownership of its lands are now <span></span><span>“</span>embarrassing” and are typically <span></span><span>“</span>concealed” by judges and attorneys, d’Errico writes.</p>
<p>The Supreme Court is still at it, according to d’Errico. He recounts the court’s recent decision in <em>McGirt v. Oklahoma</em>,
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 <span></span><span>“</span>insults” but still existed. </p>
<p>The case made its way to the Supreme Court, which found, in <span>2020</span>,
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, <span></span><span>“</span>lots of people were thrilled.” They apparently did not understand that <em>McGirt</em>
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.</p>
<p><span>“</span>Congress could do the dirty deed whenever it wished,” d’Errico writes.</p>
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<p>Periodically, a program arises that appears to support Native people but may instead be <span></span><span>“</span>extinguishment disguised as assistance,” according to d’Errico. For example, from <span>1946</span> to <span>2006</span>,
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 $<span>1</span>.<span>3</span>
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. </p>
<p>The commission was a stellar example of the <span></span><span>“</span>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.</p>
<p>Currently, tribal nations are awaiting a Supreme Court opinion on
a challenge to the Indian Child Welfare Act (ICWA). Passed by Congress
in <span>1978</span>, 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.</p>
<p>Today, many states still remove disproportionate numbers of Native
children, according to the National Indian Child Welfare Association.
After <span>16</span> judges of the Fifth Circuit Court of Appeals heard the ICWA case and issued <span>325</span>
pages of conflicting and overlapping opinions, the matter went to the
Supreme Court, d’Errico writes. Supporting ICWA before the high court
are nearly <span>500</span> tribal nations along with many Native organizations, states, child-welfare organizations and others.</p>
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<p>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 <span>2022</span>, the case will likely be decided this summer. </p>
<p>In d’Errico’s final chapter, he looks at a <span>2021</span> 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 <span></span><span>“</span>exist, flourish, regenerate and evolve.” He describes this effort to establish the rights of nature as part of an Indigenous <span></span><span>“</span>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. </p>
<p>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. </p>
<p>This, d’Errico writes, will let us <span></span><span>“</span>rearrange our relations with each other and with the planet that we share with the rest of Creation.”</p><p>
<strong><span class="gmail-text-red gmail-text-3xl gmail-font-display gmail-uppercase gmail-pr-1"><a href="https://inthesetimes.com/authors/stephanie-woodard">Stephanie Woodard</a></span></strong> is an award-winning investigative journalist who writes on human rights and culture. Her book <em>American Apartheid: The Native American Struggle for Self-Determination and Inclusion</em> is based on more than <span class="gmail-numbers">20</span> years of reporting in Indigenous communities. She was an editor at major consumer magazines for more than two decades.
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