Peter d'Errico

University of Massachusetts Amherst | UMass Amherst · Department of Legal Studies

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 educa...

Those who seek peace among Christians, Muslims, and Jews must start by acknowledging these are warring factions of a single, though complex, Family. Tolerance within and among these factions and sub-factions will require wholesale reevaluation of the underlying religious framework.

Several readers referred to my recent Substack piece about mass media at Big Mountain as a “new genre” of my writing… and encouraged me to do more “personal” writing. Their suggestions resonated with a sense already percolating in me to step back from an almost single-minded emphasis on legal and academic essays to write more broadly — personally,...

A story of personal experience in 1986... I was at Big Mountain / Black Mesa returning with my sons Julian and Adrian and my wife Angela to the land where I first encountered “Indians” and “Indian law”. Big Mountain in 1986 became a site for politics, a story for the media: Indigenous peoples confronting the nation-state industrial system. Media a...

The 26 minute video makes a nice companion to my book, "Federal Anti-Indian Law: The Legal Entrapment of Indigenous Peoples".

European feudal societies developed the theory of human evolution from "barbarism to civilization" to defend against the evidence of Indigenous well-being and freedom. In 2021, The Dawn of Everything: A New History of Humanity, by David Graeber and David Wengrow, an anthropology and archaeology research team, joined the burgeoning twenty-first-cent...

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

Viewing the Robinson Huron Treaty case within Canada's "Honour of the Crown".- - McIvor: "The Supreme Court of Canada has repeatedly stated that at its heart reconciliation is about reconciling the pre-existing rights of Indigenous Peoples with the assertion of Crown sovereignty. The phrase 'assertion of Crown sovereignty' is a Canadian euphemism f...

The rights of Native people as US citizens are inconsistent with the rights of Original Peoples as peoples. Exploring the complexities and contradictions of ‘multiculturalism’ and ‘multinationalism’ in relation to Original Peoples dominated by the US.

Thomas’ critique is an opportunity to exploit lines of fracture in federal anti-Indian law doctrines that try to justify US domination of Original Peoples. My very first Substack post was about the 2023 Haaland v. Brackeen Indian Child Welfare Act (ICWA) case: “Cutting Through the US Claim of a Right of Domination over Indigenous People: An Analysi...

How does a 15th century religious doctrine survive in a legal system that supposedly separates religion and law? "Christian discovery" contradicts the supposedly secular nature of the United States. Lee Hester says: "We cannot seriously consent to a law that would allow countries to 'legitimately' take over other countries just because they are the...

The lack of recognition of and respect for the right of self-determination of Indigenous peoples…can lead to desperation and hopelessness, with Indigenous communities frequently seeing [high] suicide rates.  Suicidal behaviour, suicide and self-harm are directly related to …the loss by Indigenous peoples

Extermination of the buffalo destroyed the original free existence of original peoples and opened the way toward domination of the continent by concentrated corporate power allied with US empire. One way to tell this story is to see how railroads were central to the extermination of the buffalo and to the creation of the corporate person.

America's claim to a right of domination over Native nations and peoples dominates the way American history is studied. I invite you to take the journey that sees colonization not as a beginning point, a "top-level category", but as an interruption of the original free and independent existence of Native peoples on Turtle Island….

A panel presentation on Christian Discovery and White Supremacy at Syracuse University – 45 minutes — Panelists discuss Christian Discovery and White Supremacy in Federal Anti-Indian Law at a Conference at Syracuse University on December 10, 2023, organized by the Department of Religion Doctrine of DiscoveryProject.

John Kane interviewed me and we discussed the Osage Murders (Killers of the Flower Moon), Native gaming, and US domination….

UMass Professor Emeritus of Legal Studies Peter d’Errico discusses how his research focusing on Indigenous and Native American law led him to new intellectual horizons and academic passions. I think I was as clear and succinct in this talk as I have ever been!

Criticism of Governor Hochul's denial of Montaukett land rights as an act of racism obscures the fundamental US doctrine claiming a right of domination over Indigenous peoples. It thus plays into the hands of anti-Indigenous assimilationists. The rhetoric of racism takes a strange turn in the history of Indigenous peoples. I have no doubt that raci...

In September 1970, Plymouth, MA, planners asked WamsuttaFrank James (Aquinnah Wampanoag) to deliver a speech for the350th anniversary of the Pilgrim invasion of (they called it an‘arrival’ on) Wampanoag lands.James agreed. But when the planners saw the text of hisspeech they refused to let him deliver it. They suggested heuse a text prepared by the...

Mashpee Nine tells the story of modern anti-Native bigotry on Cape Cod, Massachusetts, and the survival-and triumph-of Native people practicing traditional ways in their own lands. Mashpee Nine-the book and film-packs a punch. It demonstrates that Indigenous Peoples across the continent-east and west of the Mississippi-confront the same issues: pre...

Peter d’Errico and John Kane delve into a range of topics about Indigenous peoples, including the Osage murders (“Killers of the Flower Moon”), Native gaming laws, and US domination as analyzed in Federal Anti-Indian Law: The Legal Entrapment of Indigenous Peoples (Praeger, 2022)

Names have power, and naming is a power. Kiowa writer N. Scott Momaday, in "The Names: A Memoir," said names sometimes reveal, sometimes conceal identities. I've thought a lot about names over the decades I've taught and litigated about issues affecting Indigenous peoples of this continent. When you come at "Indian" this way, from a historical, leg...

Steven J. Schwartzberg’s Arguments over Genocide: The War of Words in the Congress and the Supreme Court over Cherokee Removal was published in March 2023 by Ethics Press. Schwartzberg’s incisive reading of ‘founding era’ documents lays bare the arguments that occurred during the development of the US Constitution, regarding the relationship of the...

Slow Turtle, Wampanoag Medicine Man, worked with a Native American Spiritual Awareness Council in a Massachusetts prison. He said prison administrators subjected the Circle to varying forms of harassment and intimidation. Prayer pipes, headbands, drums, smudge sticks and other items of sacred significance were confiscated from time to time as ‘cont...

Slow Turtle (AKA 'John Peters', which he referred to as his 'tax name') passed October 27, 1997. In his memory, we read Bob Doyle's poem of the sea burial of Slow Turtle's ashes; the long interview of Slow Turtle by Steve McFadden; and links to a series of video interviews of Slow Turtle by a group of young filmmakers.

When Steve asked me to write a Foreword for the book, based on our decades-long collaboration in research and writing, I was happy to do so. Here is that Foreword. At the time I wrote, I was still using the standard phrase 'federal Indian law', rather than the more appropriate phrase 'federal anti-Indian law'.

On September 14, 2023, the Onondaga / Haudenosaunee filed a Motion in the OAS Inter-American Commission on Human Rights for Reconsideration Of Admissibility Ruling On The Violation Of The Right To Property. The Motion for Reconsideration significantly ramps up the argument. The argument is detailed and explicit: Colonialism Is Not An Event: It Is a...

In honor of Indigenous People's Day - a discussion of the 'legal' theft of Indigenous lands.

An October 5, 2023, article by Gilda Geist in The Falmouth (MA) Enterprise reported a panel of Mashpee Wampanoag Tribal members speaking at Mashpee Community Park; the panel was arranged by the organization Linking Indigenous and Non-Indigenous Knowledge (LINK)—was to raise awareness about aboriginal rights.

Hundreds of court decisions and thousands of law review articles have been written about the 'commerce clause'; untold blood has been spilled in the enforcement of the claim of US power supposedly derived from the clause: https://peterderrico.substack.com/p/missing-history-in-federal-anti-indian IN THIS POST: Historical clarity and strong argumenta...

Indigenous peoples have been subjects of western study for centuries. Native BioData Consortium responds with Indigenous-led science. IN THIS POST: Medical and pharmaceutical abuses of Indigenous peoples and other marginalized persons; ignoring the principle of ‘informed consent’; the antidote: independent biobanks.

‘Christian discovery’ doctrine in US law starts with Johnson v. McIntosh. But the tap root of ‘Christian discovery’ is the colonial God of the Bible.

On August 17, 2023, I spoke by video to the Parliament of the World’s Religions meeting in Chicago, as part of a panel with Steve Newcomb, Steve Schwartzberg, and Shawna Bluestar. We explored the relationship of the doctrine of Christian discovery to the legal entrapment of Indigenous Peoples, including the role of Christian concepts in the 1830’s...

On May 12, 2023, the Inter-American Commission on Human Rights (IACHR), an arm of the Organization of American States (OAS), issued an “Admissibility Report” upholding the Onondaga Nation’s right to pursue its claims against the United States for wrongful appropriation of Onondaga land that reduced their homelands from 2.5 million acres to 7,500 ac...

Western property theories stand in sharp relief to property systems found in many Indigenous communities. This article responds to an article by Angela Riley.

The sovereignty claim of ‘Christian discovery’ underpins the entire edifice of US laws regarding Indigenous land rights. It is a US claim of ‘title’ and ‘dominion’ over Indigenous lands. ‘Christian discovery’ necessarily underlies ‘LandBack’ campaigns because the doctrine is embedded in US property law. See Johnson v. McIntosh (1823). Understandi...

MAPPING THE DOCTRINE OF DISCOVERY: Johnson v. McIntosh and Federal Anti-Indian Law with Peter d’Errico --- https://peterderrico.substack.com/p/podcast-philip-p-arnold-and-sandy

Lithium America is already moving dirt …. [and] …. doing basic infrastructure such as putting in a water line [and] fencing … about 50 miles north of Winnemucca even as the permitting process is still being hashed out in the courts. How can this happen — starting the project before it is approved? See my substack: https://peterderrico.substack.com...

Neil Gorsuch is emerging as a master of masking federal anti-Indian law. He hides US domination of Indigenous peoples in plain sight. Read this essay at my Substack: https://peterderrico.substack.com/p/neil-gorsuch-mcgirt-v-oklahoma-and

On June 22, 2023, in Arizona v. Navajo Nation, the US Supreme Court ruled against the Navajo under the federal anti-Indian law ‘trust doctrine’. I analyze the significance of this case in an essay at: https://peterderrico.substack.com/p/navajo-treaty-water-the-untrustworthy

HAALAND v. BRACKEEN: MISPLACED CELEBRATION The celebration of Haaland v. Brackeen as “a significant victory for federal Indian law and the rights of tribes and Native children across the nation” is an oxymoron, because ‘federal Indian law’ is actually federal anti-Indian law. It is a structure of US domination, not ‘protection’ (unless we want to...

Borrows wants to deploy Indigenous law Teachings to replace the political violence of state law with a network of trustworthy, consensual, reciprocal relations. He has assembled a remark-ably wide set of materials to point the way.

2023 is the bi-centennial year of Johnson v. McIntosh, the case that put ‘Christian discovery’ into US property law in a way that simultaneously created ‘federal Indian law’: The 200th year since the imposition of domination on the basis of a religious and racist theory of humankind. A domination that two-hundred years later is still considered ‘la...

We are pleased to announce our next event, "200 Years Since the Origin of Federal Indian Law". It will be an online event taking place on February 28th, 2023 @ 9:00am-1:00pm (Pacific Time). February 28th, marks 200 years to the day of the 1823 decision in the case Johnson & Graham's Lessee v. McIntosh. This Supreme Court case is noted as the origin...

Arguments Over Genocide presents an essentially spiritual critique of US laws regarding Indigenous peoples. This is most fitting, since these laws are an expression of a specific religious tradition rooted in fifteenth century Christianity. No doubt, this fact likely surprised many readers. Among those familiar with the history of Christian coloniz...

View the event in its entirety: https://vimeo.com/786042114 "The legislative history of ICWA suggests that Congress operated as a benign force creating cultural understanding that respected and empowered difference. … But this version of the story does not accord with the Act itself, which hedges tribal sovereignty about with state and federal co...

When Lloyd Omdahl referred to “tribal sovereignty” as “an idea that is over 200 years old,” he was talking about a U.S. legal concept, not the status of Indigenous nations based on their existence in these lands for millennia. The concept of “tribal sovereignty” is a denial of the free existence of Indigenous nations. March 10, 2023, will be the 20...

An article in The Nation, November 18, 2022, “It’s Time to Give Indigenous Land Back,” starts out strong, but misunderstands the crucial legal issue. The strong start is a clear statement that the root of the land issue is a bizarre doctrine by which the US claims to own Indigenous lands: “A genocidal campaign of conquest—fueled and justified by t...

Attorney Buz Eisenberg interviews Peter d’Errico to discuss his new book, Federal Anti-Indian Law: The Legal Entrapment of Indigenous Peoples, and American Indian Heritage Month. https://whmp.com/podcasts/the-afternoon-buzz-11-18-22-professor-peter-derrico-fair-play-with-duke-goldman-with-sports-author-and-financial-professional-bill-ryczek/ WHMP...

The issue in the Brackeen case is whether the Indian Child Welfare Act (ICWA) is constitutional. Some observers are fearful the Supreme Court will use the case to attack the notion of “tribal sovereignty” by applying “race theory” to characterize Indigenous peoples, in contrast to an approach that sees Indigenous peoples as “political” entities qua...

This a part of ECOLOGIA's Native American and Indigenous Paths to Environmental Resilience program and one of several podcasts and print transcripts focused on the challenges to and emerging opportunities for indigenous people to take control of environmental affairs on their own lands and on contested lands.

Join us for an in-depth look into the visit of Pope Francis to the First Nations Territories. What does it mean? What doesn't it mean. What are the potential outcomes for First Nations Peoples?

What does the doctrine of Christian discovery have to do with the struggle for water quality? For increasing water temperature? For the potential extinction of Salmon? For the genocide of Native Nations and their Peoples’ Ways of Life? More than you can imagine ... Join us for an in-depth look into the history and current conditions that are contri...

Rethinking the use of "Indian" in common plant names. Article in Wildflower Magazine, University of Texas at Austin Lady Bird Johnson Wildflower Center. https://www.wildflower.org/magazine/people/whats-in-a-name-2

A podcast of "Indigenous Perspectives" exploring the puzzling and troubling history of relations between Native American Indian tribal nations and the United States and Canada. Participants: Peter d'Errico, Steven Schwartzberg, Randy Kritkausky, Carolyn Schmidt. For audio podcast: http://www.ecologia.org/news/15.IndianLawPt2Jan2022.mp3

Many people are under the impression that the international arena and the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) provide a path of decolonization, a leverage Indigenous nations and peoples can use to their advantage. Few people appreciate that "international law" originated in the fifteenth century as the "Law of Na...

The Dawn of Everything, a “new history of humanity” by David Graeber and David Wengrow, an anthropology and archaeology research team, joins a burgeoning global awareness that life on Earth is in social and ecological crisis and that the crisis is tied to the system of industrial state corporate society. The book’s contribution is to help us unders...

A podcast of "Indigenous Perspectives" exploring the puzzling and troubling history of relations between Native American Indian tribal nations and the United States and Canada. Participants: Peter d'Errico, Steven Schwartzberg, Randy Kritkausky, Carolyn Schmidt. For audio podcast: http://www.ecologia.org/news/14.IndianLawDec2021.mp3 For transcri...

Redthought.org offered a special two-part presentation on a legal challenge to defend Oceti Sakowin (“Seven Council Fires”) lands against the invasion of an oil pipeline: Standing Rock Sioux Tribe and Cheyenne River Sioux Tribe v. U.S. Army Corps of Engineers and Dakota Access, LLC. The case went through 16 hearings between September 2016 and May...

A review of Elizabeth Cassell’s The Terms of our Surrender: Colonialism, Dispossession and the Resistance of the Innu (University of London Press, 2021)

Steve Russell is a big man, physically, intellectually, and morally. He's also a great writer and storyteller. His recent memoir, Lighting the Fire: A Cherokee Journey from Dropout to Professor, tells the story of his life through overlapping and intertwining tales. The overall structure is chronological, but the chapters often take a step back or...

This Redthought event addresses the history of the "civilization" program designed to destroy Native nations and peoples by kidnapping their children and forcing them to undergo a brutal reeducation program in boarding schools far from their families. The goal was to destroy Native languages, cultures, ceremonial, and spiritual traditions by breaki...

So much hoopla surrounded the McGirt v. Oklahoma decision that few people could see what the case really decided. McGirt did not transform federal Indian law. In fact, McGirt upheld the key federal Indian law doctrine of US domination over Native nations and peoples — the doctrine called “congressional plenary power.” It said the Creek Nation exist...

The strangest aspect of US federal Indian law is its imperviousness to critique. Imagine that you were reading an article by lawyers before 1954 (Brown v. Board of Education) discussing how to fit their Black clients into the ‘separate but equal’ doctrine. There were such lawyers, until Thurgood Marshall and his team pushed through them and made th...

This three-part event focuses on the July 2020 US Supreme Court decision, McGirt v. Oklahoma. The presentation uses the McGirt case as a window into US federal Indian law, to understand how the US built a system of domination over Native Nations on the basis of the 15th century doctrine of "Christian discovery." The context and framework for the en...

Commentary after the McGirt v. Oklahoma decision has split between those who praise it as a victory for "tribal sovereignty" and those who bemoan the "jurisdictional complexity" left in its wake. These perspectives ignore the fundamental reasoning of the decision-affirmation of US "plenary power" over Native nations premised on a claim of "Christia...

Justice Neil Gorsuch’s use of the conservative “strict interpretation, originalist” approach to legal reasoning in McGirt v. Oklahoma has changed the climate in US federal Indian law jurisprudence in ways not imaginable in recent years. Many commentators have gushingly described the decision as “a major victory for Indigenous sovereignty.” But Nati...

Jeffrey Amherst's name became tarnished by stories of smallpox-infected blankets used as germ warfare against American Indians. These stories are reported, for example, in Carl Waldman's Atlas of the North American Indian [NY: Facts on File, 1985]. Waldman writes, in reference to a siege of Fort Pitt (Pittsburgh) by Chief Pontiac's forces during th...

United States "federal Indian law" consists of a body of rules rooted in the colonial doctrine of "Christian discovery." Viewed through the lens of Carl Schmitt's concept of "sovereign ban," Christian discovery creates a "state of exception," placing Native Peoples both inside and outside the constitutional order of the United States and simultaneo...

Michael Tomasky, in “The Specter Haunting the Senate” [New York Review of Books, 30 September 2010], repeats the conventional, misguided, self-defeating notion that the Senate cannot do anything significant without sixty votes to invoke cloture on threatened filibusters. To the contrary, perhaps the most significant action the Senate majority might...

"Making Indian Law" is an effort to explain the Hualapai case from a Hualapai perspective, but the book is more than that: It is an effort to position the Hualapai case as a turning point in federal Indian law. If McMillen had delved more deeply, he would have seen the case as a way station, not a turning point, and could have given us an example o...

My purpose in this essay was to explore the doctrine of "corporate personality," to deconstruct the metaphor of legal "being," and to reveal it "as an intersection of competing discourses… as a point of fracture in which different systems of signs are transposed, translated and articulated." Recent events, including the January 2009 U.S. S.Ct. deci...

The formative influence of Christian doctrines on U.S. law was once clear and unambiguous. Religious dogmas of fifteenth-century Vatican papal bulls were deployed as the foundation of property law, nationhood, and federal Indian law in the early nineteenth century. Court decisions bound U.S. law to the world of Christendom and Christian imperialism...

In 1837, the British House of Commons Select Committee on Aborigines offered a succinct summary of the perspective from which Christian nation-states competed to maximize colonial resource extraction from Indigenous, non-Christian peoples: "True civilization and Christianity are inseparable: the former has never been found, but as a fruit of the la...

Late 20th century Native America presents the same conflicts as the late 18th century: land and water rights, hunting and fishing, religious freedom, criminal and civil jurisdiction. In fact, these conflicts are typical of relations between indigenous peoples and colonizers on the American continent as a whole beginning over five centuries ago. Occ...

It is not unusual to find John Marshall lauded as the "greatest judicial advocate of Indian sovereignty." Three seminal Supreme Court opinions authored by him -- Johnson v. McIntosh (1823), Cherokee Nation v. Georgia (1831), and Worcester v. Georgia (1832) -- are frequently said to have established legal "protection" for American Indians. What is i...

The definition of indigenous justice -- rooted in spirituality -- shifts attention away from state institutions and toward community relations. Indigenous justice is peace-making that allows each community to survive from "time immemorial.” State institutions are based on a framework of absolute power and such power is generally absent in indigenou...

Christian nationalism has achieved hegemony, but has not been able to end its conflict with those it regards as "aboriginal," here before the beginning. The prior inhabi- tants of colonialized lands have survived, and continue to assert prior claims to the land in domestic and international proceedings. Un- abashed colonialism continues internation...

An essay written in December 1995 for Interracial Voice, commenting on the murder trial of O. J. Simpson. "O. J.'s blood (or was it?) appeared to be the only question in the trial of O. J. Simpson. Media, frustrated with low-tech legal processes, fixated on DNA. In the end, the jury appeared concerned with other blood that emerged from police test...

Peter Mattiessen's In the Spirit of Crazy Horse is a momentous work. It was published in a period of renewed agitation about Native sovereignty and treaty claims more than a decade after the last flowering of public interest in American Indians. The book is a detailed tome of investigative reporting on a topic of inflammatory significance—the death...

Efforts at the University of Massachusetts at Amherst illustrate how academic programs such as Legal Studies can form the basis for conflict resolution in the local community as well as on campus. The study of conflict and its resolution lies at the core of many disciplines , but perhaps none touches as closely on this subject as legal studies, th...

Sovereignty is classically defined as supreme legal authority. The concept was formulated by sixteenth century legal philosopher Jean Bodin and elaborated by many theorists since then. One basic controversy has been whether to trace supreme authority to the people or to a "divine right" of rulers. Another has been about the relation between legal a...