Peter d'Errico
My research and writing on Indigenous Peoples' legal issues focuses on self-determination and territorial integrity in the face of nation-state colonial doctrines of "discovery," "terra nullius," "plenary power," and "trusteeship." I take a critical approach to U.S. "federal Indian law"— fully set forth in my book, Federal Anti-Indian Law: The Legal Entrapment of Indigenous Peoples (Praeger - ABC-CLIO, 2022) https://www.abc-clio.com/products/A6462C/ .
I was introduced to Indigenous legal issues in 1968, as an attorney in the Shiprock office of Dinébe’iiná Náhiiłna be Agha’diit’ahii—Navajo Legal Services. I represented individual clients and worked on special projects, including a juvenile code integrating U.S. due process standards with traditional Navajo clan practices, and a class action lawsuit against car dealers who exploited Navajo customers.
When I began teaching at the University of Massachusetts / Amherst, I developed a curriculum on global Indigenous legal issues, and courses on critical legal theory from an Indigenous perspective. I helped develop the Legal Studies Department and was its first Director. I am coauthor of Before the Law: An Introduction to the Legal Process (Boston: Houghton Mifflin Co., 2006 [8th edition]), and author of essays, articles, and encyclopedia entries on Indigenous Peoples legal issues, in addition to my 2022 book.
I have also been active in litigation. In one case, I represented members of a Native American Spiritual Awareness Council—a group of inmates in a Massachusetts prison—to defend and expand their freedom of religion. The case, Trapp, et. al v. DuBois, et. al., concluded, after ten years of litigation, in a court-ordered agreement with the Department of Corrections to protect Native spiritual practices.
In another case, I represented two Wampanoag men charged with violating a local shellfishing ordinance. The case, Commonwealth of Massachusetts v. Michael J. Maxim and David S. Greene, resulted in unanimous decisions of the Massachusetts Appeals Court and Supreme Judicial Court upholding Wampanoag fishing rights.
Elsewhere, I worked with the Western Shoshone National Council in a variety of legal contexts, including federal and state court litigation in Nevada, and petitions to the United Nations Committee on the Elimination of Racial Discrimination, the Organization of American States, and other international bodies.
I was a columnist for Indian Country Media Network from 2010 - 2017.
My life: born in West Virginia; lived in WV, MA, NY, LA, ND, ME, CT, NM
My education: Bates College, A.B., Philosophy, 1965; Yale Law School, LL.B. (J.D.), 1968
My current professional status: Emeritus Professor of Legal Studies, University of Massachusetts / Amherst; New Mexico Bar Member (Inactive)
Website: http://people.umass.edu/derrico/
Blog: https://blogs.umass.edu/derrico/
I was introduced to Indigenous legal issues in 1968, as an attorney in the Shiprock office of Dinébe’iiná Náhiiłna be Agha’diit’ahii—Navajo Legal Services. I represented individual clients and worked on special projects, including a juvenile code integrating U.S. due process standards with traditional Navajo clan practices, and a class action lawsuit against car dealers who exploited Navajo customers.
When I began teaching at the University of Massachusetts / Amherst, I developed a curriculum on global Indigenous legal issues, and courses on critical legal theory from an Indigenous perspective. I helped develop the Legal Studies Department and was its first Director. I am coauthor of Before the Law: An Introduction to the Legal Process (Boston: Houghton Mifflin Co., 2006 [8th edition]), and author of essays, articles, and encyclopedia entries on Indigenous Peoples legal issues, in addition to my 2022 book.
I have also been active in litigation. In one case, I represented members of a Native American Spiritual Awareness Council—a group of inmates in a Massachusetts prison—to defend and expand their freedom of religion. The case, Trapp, et. al v. DuBois, et. al., concluded, after ten years of litigation, in a court-ordered agreement with the Department of Corrections to protect Native spiritual practices.
In another case, I represented two Wampanoag men charged with violating a local shellfishing ordinance. The case, Commonwealth of Massachusetts v. Michael J. Maxim and David S. Greene, resulted in unanimous decisions of the Massachusetts Appeals Court and Supreme Judicial Court upholding Wampanoag fishing rights.
Elsewhere, I worked with the Western Shoshone National Council in a variety of legal contexts, including federal and state court litigation in Nevada, and petitions to the United Nations Committee on the Elimination of Racial Discrimination, the Organization of American States, and other international bodies.
I was a columnist for Indian Country Media Network from 2010 - 2017.
My life: born in West Virginia; lived in WV, MA, NY, LA, ND, ME, CT, NM
My education: Bates College, A.B., Philosophy, 1965; Yale Law School, LL.B. (J.D.), 1968
My current professional status: Emeritus Professor of Legal Studies, University of Massachusetts / Amherst; New Mexico Bar Member (Inactive)
Website: http://people.umass.edu/derrico/
Blog: https://blogs.umass.edu/derrico/
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Blog by Peter d'Errico
Despite this illustrious origin, the First Amendment is a target of attack by a number of prominent persons, including government officials who have sworn to “uphold the Constitution” …
Part 2 explained how the amalgamation of “corporate persons” and “natural persons” produced a commodified society.
Now, I present some political reflections.
Now, in Part 2, I look at political-economy.
The 14th Amendment, having fostered the birth of freedom for the “corporate person”, is superfluous for “human commodities”.
Here’s Part 1 of a condensed version of the essay I wrote three decades ago, “Corporate Personality and Human Commodification”, exploring the US Supreme Court case of Dartmouth College v. Woodward (1819).
The world is caught in their crossfire.
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.
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, philosophically.
The broader perspective would still have roots in my legal / academic experiences with Original Peoples and Nations, building from something Muscogee Creek medicine teacher Phillip Deere said: “What we call the ‘Indian way of life’ is only a human being way of life.”
Big Mountain in 1986 became a site for politics, a story for the media: Indigenous peoples confronting the nation-state industrial system. Media arrived to ‘cover’ the story.
The heart of my story is the two moments when I saw the truth of television, the fabrication of mass media, America's story to itself about “Indians”.
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.
"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 of their rights to their lands and territories, natural resources, traditional ways of life."
Despite this illustrious origin, the First Amendment is a target of attack by a number of prominent persons, including government officials who have sworn to “uphold the Constitution” …
Part 2 explained how the amalgamation of “corporate persons” and “natural persons” produced a commodified society.
Now, I present some political reflections.
Now, in Part 2, I look at political-economy.
The 14th Amendment, having fostered the birth of freedom for the “corporate person”, is superfluous for “human commodities”.
Here’s Part 1 of a condensed version of the essay I wrote three decades ago, “Corporate Personality and Human Commodification”, exploring the US Supreme Court case of Dartmouth College v. Woodward (1819).
The world is caught in their crossfire.
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.
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, philosophically.
The broader perspective would still have roots in my legal / academic experiences with Original Peoples and Nations, building from something Muscogee Creek medicine teacher Phillip Deere said: “What we call the ‘Indian way of life’ is only a human being way of life.”
Big Mountain in 1986 became a site for politics, a story for the media: Indigenous peoples confronting the nation-state industrial system. Media arrived to ‘cover’ the story.
The heart of my story is the two moments when I saw the truth of television, the fabrication of mass media, America's story to itself about “Indians”.
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.
"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 of their rights to their lands and territories, natural resources, traditional ways of life."
Combining a deep theoretical analysis of the law with a historical examination of its roots in Christian civilization, d’Errico presents a close reading of foundational legal cases and raises the possibility of revoking the doctrine of domination. The book’s larger context is the increasing frequency of Indigenous conflicts with nation-states around the world as ecological crises caused by industrial extraction impinge drastically on Indigenous peoples’ existences. D’Errico’s goal is to rethink the role of law in the global order—to imagine an Indigenous nomos of the earth, an order arising from peoples and places rather than the existing hegemony of states.
Features
* Combines a deep theoretical analysis of the law with historical perspective * Argues that federal Indian law is an exception from regular legal processes * Offers a global Indigenous perspective on human civilization * Provides analysis from an attorney and educator with decades of experience in federal Indian law
These are the pivotal letters:
Colonel Henry Bouquet to General Amherst, dated 13 July 1763, suggests in a postscript the distribution of blankets to "inocculate the Indians";
Amherst to Bouquet, dated 16 July 1763, approves this plan in a postscript and suggests as well as "to try Every other method that can serve to Extirpate this Execrable Race." (This postcript spans two pages.)
These letters also discuss the use of dogs to hunt the Indians, the so-called "Spaniard's Method," which Amherst approves in principle, but says he cannot implement because there are not enough dogs. In a letter dated 26 July 1763, Bouquet acknowledges Amherst's approval and writes, "all your Directions will be observed."
"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 testimony, bad blood between races. O. J.'s acquittal appeared to have more to do with racial than individual blood."
With these thoughts in mind, let us look at the project to decolonize Native Studies discourses and, by extension, discourses emanating beyond classrooms. I suggest four arguments every student in Native Studies must encounter if we are to continue to move away from manifest manners and toward survivance, struggle, resistance, and innovation. The arguments focus on "INDIAN", "TRIBE", "GENOCIDE", and "NATIVE RIGHTS / CIVIL RIGHTS".
[New Diversities • Volume 19, No. 2, 2017
http://newdiversities.mmg.mpg.de/wp-content/uploads/2018/01/2017_19-02_06_Errico.pdf ]
The path ahead is not clear. While former colonies have become self-governing nation- states within the overall scheme of global capitalism, some 250 million people still live as domestic colonies within nation-states.
These books, especially Armitage and the Hazlehurst volume on Legal Pluralism and the Colonial Legacy, provide a supply of fresh thinking in the midst of confusion.
I emphasize property and political-economy in discussing Baron and Femme because the whole book and the field of law with which it is concerned centers not on human relations, but on property as refracted through human relations; or, perhaps it should be said, on human relations as refracted through property.
Reeve is sometimes credited with proposing emancipation of women from the restrictions of feudal laws of baron and femme. It seems clear to me, however, that Reeve focused on issues of women’s property from his concern for the development of a market economy. If Reeve was a feminist in any sense, it was because his commitment to a market concept of property led him to that perspective.
The market concept of property brings us to the commingling of women and American Indians in early colonial law. Reeve’s book nowhere discusses Indians; but his exegesis of property concepts in the transformation from feudalism to capitalism was completely congruent with what was happening in American law to define title to lands of indigenous peoples within the exterior borders of the United States.
The persistence of fundamental issues over a period of 500 years demonstrates the ongoing existence of Native Americans as distinct peoples, despite repeated attempts to make them disappear. America was not a virgin land when boat people from across the Atlantic arrived. From the earliest days to the present, Native peoples have been a presence in America. The existence of Native Americans as peoples -- as self-governing groups, rather than simply individuals sharing personal and cultural traits -- is what sets them apart from other "minorities" in America. This difference warrants theoretical and historical overview, so that the variety of particular issues and controversies active at any given time or place can be understood in an overall perspective.
What is in question here is whether Marshall's opinions in the Indian cases were an expression of "concern for the Indians" or something quite different. The critical perspective developed here will focus on a close textual analysis of the first of the three cases, Johnson v. McIntosh, which produced a legal theory and a jurisprudential basis for all that followed.
Recent events, including the January 2009 U.S. S.Ct. decision, "Citizens United v. Federal Election Commission," and the continuing devastation of the planet for corporate profit, made me take a new look at what I wrote nearly 15 years ago. I think the essay carries new weight....
March 10, 2023, will be the 200th anniversary of the U.S. Supreme Court decision that started the watered-down idea of “tribal sovereignty” as the basis for a U.S. claim of domination over Indigenous nations. Johnson v. McIntosh, an 1823 property law decision written by Chief Justice John Marshall, said the United States owns Indigenous lands “discovered” by Christian colonizers!
The untrustworthy federal Indian law trust doctrine was fully on view in the March 28, 2020, termination of Mashpee Wampanoag trust land status. The US Interior Department, following a February decision by the First Circuit Court of Appeals in Littlefield v. Mashpee Wampanoag Indian Tribe [951 F.3d 30, 33], revoked the "trust" status approved in 2015.
Supposedly, under the federal Indian law "plenary power doctrine," only the US Congress has power to terminate trust land status. That point was also made by Justice Alito in the Jicarilla case. The Mashpee termination decision by Interior shows that no part of federal Indian law is trustworthy, even the parts that declare Congress has full authority over "Indian affairs."
"Trust doctrine" and "plenary power doctrine" go way back to the beginning of federal Indian law and its roots in "Christian discovery doctrine."
What makes Cougar Den especially significant is that for the first time the court was presented with a direct challenge to "Christian Discovery." That is the US legal fiction declared in 1823 (in the case of Johnson v. McIntosh) that the United States has an “ultimate dominion” over the lands of Native Nations, and that Native Nations only hold a title of “occupancy” to their own lands because they are "heathen” nations.
The Yakama Nation challenged Christian Discovery in its amicus brief (a brief by a non-party) filed in support of the Yakama Nation licensed Cougar Den trucking company, the defendant. The Yakama brief says Washington's legal argument, which was defeated in the state's own courts, is based on "the religious, racist, genocidal, fabricated doctrine of Christian discovery." It says the relationship between the United States and the Yakama Nation is founded on the Yakama treaty. It says Christian discovery has no legitimate place in that relationship.
Think about it! One of the most famous Native Nations in the “new world” – the Nation who helped the English Christian Pilgrims establish their Plymouth Colony in America – are not “Indian” enough to have a reservation! The Mashpee have survived 400 years of invasion and domination by the Christian colonizers and their descendants. They have tenaciously held onto their homelands, despite repeated efforts to destroy their bonds with these lands. The Mashpee continue to live as a Native Nation in the very lands they have held since time immemorial. But the U.S. says they don’t “satisfy” the legal rules to have their land rights acknowledged. What is this legal mumbo-jumbo all about?!
The publisher bills "Thunder in the Mountains" as an "exploration of post Reconstruction America." That rubric may attract a readership beyond those interested in "Indian" issues, but it misconstrues the plan of the work, suggesting that Sharfstein explores the Nez Perce War as an aspect of post-Reconstruction America. Other books have framed so-called "Indian wars" as episodes in American history, presuming that American history has a trajectory independent of wars against Indigenous Peoples.
The danger inherent in Standing Rock's reliance on U.S. law becomes apparent. A traditional Native perspective views human actions as part of an interdependent ecosystem, rather than as independent variables within a container called "the environment." These two views clash repeatedly in ongoing conflicts between Indigenous life-ways and colonizing, extractive economic practices.
The Uluru Statement reproduces sovereignty conundrums. It asserts, "Aboriginal and Torres Strait Islander…sovereignty…has never been ceded or extinguished, and co-exists with the sovereignty of the Crown." The Statement then asks, "How could it be otherwise?" But, I ask, how can Aboriginal sovereignty—from "time immemorial"—coexist with British sovereignty created 200 years ago? What does co-existing sovereignty mean?
Felix Cohen, widely known for his "Handbook of Federal Indian Law," a compilation of U.S. laws affecting Native Peoples, also authored numerous essays, including a 1952 piece, "Americanizing the White Man." Cohen asserted, "few Americans … realize that America is not just a pale reflection of Europe - that what is distinctive about America is Indian, through and through." He criticized the notion of "the vanishing Indian, …the theme of song and folklore, of sculpture, of fiction and of the special sort of fiction that sometimes passes as American history."
One might think that the clear failure of colonial social policy would be cause for relief among indigenous peoples who were its targets. But the time for celebration of victory is not yet come.
These books, especially Armitage and the Hazlehurst volume on Legal Pluralism and the Colonial Legacy, provide a supply of fresh thinking in the midst of confusion.
My introduction occurs in the first 10 minutes of this video, which also includes a snippet from the film and an extensive group discussion following the presentation.
Symposium on Indigenous Peoples, Truth and Reconciliation Pt. 2, 10-2-2012
The case proceeded to trial in 1999. In 2002, the Massachusetts Appeals Court ordered the Defendants to settle the controversy by negotiations with the Plaintiffs. In 2003, the first Purification Lodges were held inside three Massachusetts prisons, where named Plaintiffs were incarcerated (several having been transferred from the original prison). By 2003, Native Circles were meeting regularly in many prisons in the state.
http://people.umass.edu/derrico/trapp/
This website provides a history of the litigation that followed, up to and including the April 7, 1999, the Massachusetts Supreme Judicial Court unanimous decision upholding Wampanoag shellfishing rights, with links to court filings and opinions.
http://people.umass.edu/derrico/wampanoag/
WHMP Radio: 101.5fm / 1240am / 1400am / WRSI-HD2 — Amherst, Northampton, and Greenfield, Massachusetts
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/
http://www.ecologia.org/news/23.IndianLawTurfWars.mp3
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.
For audio podcast: http://www.ecologia.org/news/14.IndianLawDec2021.mp3
For transcript and supplemental materials: https://www.ecologia.org/news/indigpers.html
"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 constraints."
Join us for a close look at the history and politics behind ICWA and the current litigation challenging it.
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 indepth look into the history and current conditions that are contributing to the future of Water & Salmon.