The Majority Report with Sam Seder - 2750 - Indigenous People's Day: US Law & Stealing Indigenous Land w/ Peter D'Errico

Episode Date: October 12, 2026

It's Indigenous People's Day on The Majority Report. On today's program: Enjoy a classic interview with Peter D'Errico, professor emeritus of legal studies at the University of Massachusetts, Amherst, who discusses his recent book Federal Anti-Indian Law: The Legal Entrapment of Indigenous Peoples. https://polsci.umass.edu/people/peter... + https://www.bloomsbury.com/us/federal... all that and more. To connect and organize with your local ICE rapid response team visit ICERRT.com The Congress switchboard number is [phone]. You can use this number to connect with either the U.S. Senate or the House of Representatives. Follow us on TikTok here: https://www.tiktok.com/@majorityreportfm Check us out on Twitch here: https://www.twitch.tv/themajorityreport Find our Rumble stream here: https://rumble.com/user/majorityreport Check out our alt YouTube channel here: https://www.youtube.com/majorityreportlive Gift a Majority Report subscription here: https://fans.fm/majority/gift Subscribe to the AM Quickie newsletter here: https://am-quickie.ghost.io/ Join the Majority Report Discord! https://majoritydiscord.com/ Get all your MR merch at our store: https://shop.majorityreportradio.com/ Get the free Majority Report App!: https://majority.fm/app Go to https://JustCoffee.coop and use coupon code majority to get 10% off your purchase Check out today's sponsors: FACTOR: Go to FactorMeals.com/majority50off and use code majority50off to get 50% off and 1 free breakfast item per box for 1 year, while supplies last until 10/31/2026. RIDGE WALLET:Head to Ridge.com/MAJORITYREPORT for Ridge's Friends & Family Sale, where you can buy two Ridge Power Banks and get a third one FREE SUNSET LAKE CBD: Head to SunsetLakeCBD.com and use code "Left is Best" for 20% off your entire order. Follow the crew on X @SamSeder @EmmaVigeland @MattLech On Instagram: @MrBryanVokey Check out Matt's show, Left Reckoning, on YouTube, and subscribe on Patreon! https://www.patreon.com/leftreckoning Check out Matt Binder's YouTube channel: https://www.youtube.com/mattbinder Subscribe to Brandon's YouTube channel: https://ww.youtube.com/Th3Discourse Check out Ava Raiza's music here: https:/www.youtube.com/@avaraiza

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. The Majority Report with Sam Cedar. It is Monday, October 12th, 2006. My name is Sam Cedar.

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. It's Indigenous People's Day. Is that on the screen? Bring her on. Hey, I'm here live to tape. And we are actually, this is the weird thing.

There's a lot of theories out there about time being circular. And that, in fact, the future, the present and the past all exist in the same moment. It's just a question of a journey. It's led to some very mediocre TV shows. I can say that. It leads to my brain hurting and then existential dreads. It's a lazy writing. But this is a perfect example of it because here we are.

It is Monday, October 12th. You are watching this and yet we're not here. It appears we're here. We have actually transported into the future to record this and we did this in the past. It's like videotape. And when we were in the past, We were doing it in the future. What?

Yes. Blow your mind. But in fact, we are off today. It is Indigenous People's Day. And we've been playing this interview, I think, for a couple years now, in a row. Because I found it so fascinating. And many people find it very dry, I think. But I find it fascinating.

And it is. But I think. you might also find it fascinating and it's worth a try it's an interview with uh professor uh peter de erico is emeritus professor of legal studies at umass amherst so i have a biased um and uh he uh wrote a book several years ago about uh federal anti indian law the uh legal entrapment of indigenous peoples And what I really found fascinating about this book was the way our Indian law today, the fundamental building blocks of it you can find in a 15th century, 16th century papal doctrine. And he tracks how it actually gets whitewashed. It's used at first to essentially justify, uh,

interlopers, invaders, imperialists, colonizers, getting rid of, uh, killing off committing genocide of, um, of indigenous people in this country. And then how it gets whitewashed. washed into our legal system and cited as recently as Ruth Bader Ginsburg 20 years ago, maybe less. And so it's a fascinating story. And also when you start to contemplate like, you know, there is an inherent racism and which emanates many times religious fundamentalism that justifies these things.

And then you see how it has to become like a civil principle rather than just a religious principle. Right. And, you know, I've been educated in this in no small part due to our friend Matt Leck about some of the history of how indigenous people were interned and how that has been, you know, modeled by, say, like Zionists or or just, you know, other genocetian. societal societies around the world. And a lot of this history is completely submerged. When we're talking about, you know, the present moment and our support for, say, Israel's genocide in Gaza, will often compare it to the Nazis, true. But we can also, of course, compare it to even our own history towards the indigenous people in this country, which we still don't have a collective full understanding of. So listen to this and, uh, in enjoy it, you'll learn something, it will keep you focused on what this day is, really should

ultimately be about. And then we will be back tomorrow and galloping towards the election. There's a midterm election. And it's getting, it's getting, we're in that, that zone now where, well, actually, I've been there for a month. I can't sleep. I just like, I can't sleep. I mean, like, I can get to sleep. It really, thanks to Sunset Lake Farms, this is not a paid advertisement. This is just a reality. But then I wake up at like five in the morning. I've got the opposite problem.

And immediately, like, before I even realize where I am, I realize, like, wait a second. Wait, why are you thinking about that dude in Kansas? Or why are you having an argument in your head about it with some? some, you know, ding-dong about support for Abdul Al-Sahya, whatever it is. It's a little frightening. Well, the good news is, the good news is that, you know, like November 3rd or 4th or whatever, this whole pre-election era ends. And then we just go into Donald Trump being insane and our government being a shit show.

So things will calm down in the 2030s, probably late in that decade. But in the meantime, we are running this interview. I'm not sure how they're related. But that's the case. All right. First off, I said, we got a couple of sponsors. I was saying to Matt, like, oh, we're doing factor meals. And I was saying, like, my daughter now.

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supplies last until October 31st, 2026. That's code. Majority 50 off at factor meals.com. Majority 50 off at factor meals.com. See the website for more details. We'll put a link, obviously, in the podcast and YouTube descriptions, as well as at majority.com. Also sponsoring the program, Ridge, which makes my daily carry gear that I am. obsessed with. I was just realized, like, I don't have my charger. They have a charger that is a little bit bigger than their wallet. You can charge a stuff, what a mag safe charger. But also it has the cords built in. So you can do the USBC or the other, you know, the, the, the Mac proprietary one. It will last a lifetime. It's great for travel. I throw it in my bag on days where my son has not stolen it from me. And I put it in my bag

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I don't know. Like, how many months was it? Did you say, Matt? I don't know. I charged mine once and I haven't had to recharge it. Let me check. It's months. But it also recharges, again, with a mag save thing.

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I also, you know, you can put it in anything, obviously. From October 8th to November 5th, Ridge is running their family and friends sale. Buy two Ridge Powerbanks. Get the third one free. Dude, this is the gift for Christmas or Hanukkah. that's three free gifts that people actually use or two gifts and one for yourself everyone has a phone that dies headphones that needs charging if you got one of those like earpod things uh a watch they forgot to plug in which is exactly why a power bank makes such a great gift with built-in cables mag safe

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slash majority report for Ridge's friends and family sale we can buy two Ridge power banks get a third one free that's ridge.com slash majority report shop smart this holiday season with Ridge after you purchase they're going to ask you where you heard about them please of course tell them you heard about them from our show all right quick break and then uh we will be playing this interview uh from i think it was two years ago three years ago with peter de erico a professor emeritus of legal studies at the University of Massachusetts on Indian law. And we will see you tomorrow. Sam Cedar on the Majority Report. Real pleasure to welcome to the program, Peter Deerico. 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. Thank you, Sam. Good to be here with you. I got to 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 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 um, Indian law for much of this country's existence has been real, uh, 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 like let's just go back and the, um, idea of dispossession of indigenous people lands in this country. really in many respects started at the birth, you know, obviously, re-birth of the nation. But Washington and Jefferson in particular were real estate guys. 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.

I love that for the real estate. I used the phrase more formal land speculators, but real estate aid, that's exactly what it was. You could think of the entire colonial operation as a real estate operation. Going back before there was, in fact, going back to the first colonies, Virginia colony, was a company, a company of adventures. It 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, well, tobacco was a big market, but 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 U.S. actually owns the continent, 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 the big guy. The 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 futile 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, et cetera, 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 the seventh 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 jumped 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 the 7th, 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 region 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 nowhere the Christian monarch had discovered, it was part of their domain. And domain comes from dominion and domination. 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, before we get there, because I think this is, you know, this is sort of, this is fascinating insofar as in it, 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 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 is 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 got, well, this is God told us to do this. Yes. That's, 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 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. By the time that another century has 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 is 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 it's 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 U.S., etc., then 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 crowns 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 U.S. 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 U.S. 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 U.S. conquered, America conquered the continent. there was 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 U.S. owns it. How does the U.S. own? People don't have to answer that question.

They don't, all they know is that the court says the U.S. owns it. I mean, that makes sense? Yes, and what's fascinating is we had some type of transition in terms of, you know, rule, like legitimacy for rule and obviously flawed because 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, etc., etc. But relative to feudalism, it is 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, I 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.

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 it, but there's like a carve out if you're an indigenous person. Can you just talk about the development of that law, like that doctrine? Because we should be clear, this doctrine has been cited in the past couple of years. This is a doctrine that has. had incredible durability. Yes, and still does. And I want to say that right now we're at a very critical violence.

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 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 versus 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 U.S. was supposed to come in. That'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 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 Woosstabee, 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 refer to this, it just happened in the last couple of years. And of course, it did. The McGirt case, the... Let me, 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 there's a there's a there's a there's a the analogy i can think of is like it's sort of uh is a schizophrenia in some way because there is a just a fundamental assumption that is made that is wrong yes 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 a 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, a foundation that was unsustainable. And the reason why that foundation is unsustainable is because God basically said that we had to land. Yep, absolutely. And, and you know, it is, I think schizophrenia is a, 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 U.S. has what's called in the law, plenary power. There's no, 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 U.S. 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 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 going to be laid. 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's kind of like a stuages thing. He's trying to figure out how he knows he has to come to the conclusion that the U.S. is going to be able to wipe this treaty out, but the treaty says that it's forever and it says the U.S. 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, 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 this? I think Lady Macbeth says something about who is there that could challenge our power. We don't have to worry. 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 Marshall Doctrine, if you will. And in the Oneonta Nation case, tell us about that case. But what's fascinating is how the genesis of the Marshall Doctrine is completely left out. Yes. Oh, my God. 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 Marshall doctrine, but simply like, Marshall, I mean, you know, this is a longstanding doctrine.

We don't question at this point. If you get firm enough out, you don't have to question the development of that doctrine. But talk about that because of Ruth Bader Ginsburg, who I would assume most people would be like, oh, no, she would have a problem with this. Exactly. This is why it's so surprising. And you can, this is why I also emphasize this has nothing to do with left versus right, liberal versus conservative. You have the conservative Clarence Thomas saying the U.S. has no basis to claim this power. And you have the liberal Ruth Bader Ginsburg just accepting it without it. 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 president 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, 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 Eighth Circuit. And nobody says, well, where did the Eighth Circuit get? Oh, they got it from, you know, the Supreme Court and where? Well, where did the Supreme Court get it there? You don't, that's not what President 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's. And this, the example of people are most familiar with would be Brown versus Board of Education. You know, 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 U.S. 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 Tehitton case, the Klingot Indians had sued the U.S. 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, well, getting on some thin ice here. And ultimately, they, at the 11th hour, Stanley Reed, who was the author of the majority opinion, he sent a memo to the rest of the

justice, is saying, I've decided I'm going to pull the word Christian out of this sentence. And so... And this case was the... This is Tehitton v. United States. It was a Tlingot band who had lumber taken by the U.S. to be cut up and made into pulp for newsprint by some contract that the agriculture department had made. And the tlingot 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 U.S. 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 195. And we're thinking, well, wait a minute, 1823, let's see, in 1490, 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. Just to remind people of what was at the issue at that case.

The issue was that there's a 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 a native guy, he's in Indian country within the treaty, original treaty lands. So this is not a state criminal matter. But 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 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 uphold 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 Cape McGurley, 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? Gorsitz doesn't even use the word discovery. 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 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 has been whitewashing. It's whitewashing. I mean, it is essentially like you know, if there's a rock under a piece of carpet, if you layer enough carpets under 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 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 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 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. You know, one of the most interesting ways, kind of a lens through which to view U.S. 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 U.S. crown is going to be the one that we have here. And as the West was, you know, 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 a, there's an interesting way of looking at how did the federal government get to this position of tremendous power if it did, 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 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 U.S. has the highest or the deepest title to this continent. Oh, that's fascinating. So in some

ways. When we talk about the, when we talk about the Indian Removal Act and the, and the subsequent legal proceedings, this is also, it's a two-for 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 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 we and this will cement your subsidiary relationship to us. So it was a two-for for the federal government, both a function of colonization, but also colonization as almost like, you got to pay a V. You know, this is the Vig, essentially. You get the land, but you also understand that we're the Koppo. 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, we started out, because Nye County, this, This is in Nevada. Nye County was claiming that it actually was in control 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 U.S. has it. And so Western Cheshoney National Council contacted me and said, you know, this is really West Chisholni land. Isn't there anything we can do? And I said, well, yeah, there's a very easy. methods 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 U.S. 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 the to Western Shoshone no longer, there was nothing to intervene in anymore. And the idea is they don't want to give the Western Shoshone the opportunity to prove that their claim to that Lamb trumps because this is, and 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 happened with Marshall is almost sort of like analogous to the Dunning School on some level, just like obscuring history so that there. is no modern need to contend with it. Yes. 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 Cornell West for the third party is coming in and 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 in 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 say, 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 kill the Indian.

Right. And that whole process, he celebrated and the friends celebrated. 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 peave is that you'd think that somebody who's thinks of themselves is 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. This is, Deb Holland, you know, 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. Like, 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 Shoney 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 in Christian supremacy, the U.S. 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 Thacker 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. Yeah, I mean, I think that's a, that may be like for a different day because I would say, 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, you know,

Barack Obama signaled that racism was over when he became president of the United States. There's not the same sort of dilemma of this agenda to, you know, to assimilate out of existence Indian culture so that there would be no, you know, indigenous claims to the country. But, I mean, that raises an issue. But I think, you know, 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, um, 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 Holland 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, 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 were a 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 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. So there's been action at that level of the courts. in other places. And so it's not as if it's planet, in term planetary terms, it's not inconceivable at all. But within the U.S., 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 the more TV. Let's watch that situation comedy. Let's go watch that quiz show. It's a 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 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, 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 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 it's hopeless. So the level of conversation we're having

is really quite significant, I think. 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, it's mostly despondency, that KBJ in the in the recent like I think it was the affirmative action case where she was talking about the and 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 was a recognition of you know who was specifically 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 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 Deerico, 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 in our podcast and YouTube description. Really fascinating work.

I think he's really so much for joining us. Sam, this has been a wonderful conversation. I really appreciate the chance to talk with you. I want, but I know I'm going to just got caught.