This is great. Perhaps the most succinct and lucid presentation on the subject of “federal Indian law”--which my friend Steve Russell used to call “federal Indian control law” and which after this presentation will increasingly become known as “federal anti-Indian law”--the best short presentation that is available on this subject that I am aware of. It’s less than fifty minutes and should be required viewing in every law school as well as seen in college courses throughout the country and by concerned citizens everywhere.
Peter, Thank you for giving me the opportunity to talk to you here . I wrote an article for the newsletter "Ureshipa −Charanke." (『ウレシパ・チャランケ』)
『ウレシパ』”(Ureshipa)” means nurturing each other in Ainu language. and 「チャランケ 』”(Charanke)”means thoroughly discuss and advocate in AINU language.
And the title of my article is "Retracted the “Doctrine of Discovery' and Still Asserted the “Doctrine of Discovery'.
The “Doctrine of Discovery “originally emerged from 15th-century Christian doctrine, was inherited by the United States, and was codified into domestic law (judicial precedence ) by Chief Justice Marshall (1823) ,representing the legal expression of colonialism. It allows for the lawful theft and robbery of indigenous lands.
In the world, the “Doctrine of Discovery “ is strongly condemned as a legal basis for colonialism, legitimizing the theft and robbery of indigenous lands. This Doctrine has been criticized by indigenous movements worldwide, to the extent that even the Vatican has been forced to retract its support. Nevertheless, this legal doctrine persists and continues to be applied in courts as exemplified by Marshall's three landmark decisions.
In Japan, the government and parliament have prohibited salmon fishing by the indigenous Ainu people throughout Hokkaido. Therefore, there should be a strong appeal to the Japanese government and parliament not to prohibit Ainu salmon fishing. One Ainu group has filed a lawsuit against the ban on salmon fishing. However, the issue is that the lawyers in the lawsuit are using Marshall's "Doctrine of Discovery" to argue their case. The lawyers argue as follows: The Doctrine of Discovery limits the external sovereignty of indigenous peoples but does not restrict their internal order. Therefore, they claim that the Ainu people's internal right to salmon fishing can be asserted against the Japanese state.
However, I consider this argument to be self-defeating for Ainu . As already stated, the Doctrine of Discovery is a principle of domination and justifies colonialism. Therefore, Chief Justice Marshall's theory should be refuted, and it should not be employed by indigenous Ainu people.
Very good statement! The continued use of the Doctrine to support Indigenous rights is indeed problematic. It is similar to the way segregation and slave laws were used to support Black people and slaves rights!! Those laws were domination, but they had small — very small — 'rights' for the dominated people: For example, the 'right' not to be punished too severely by the master. Very strange that we are stuck in this limited understanding! Thank you for your writing about the Ainu!
My article is published in Yamanashi prefecture, Japan,It’s a kind of News Letter. Could I write its outline, here on your HP? Thanks for your interest of my article.
The video I watched was “What is Federal Anti-Indian Law?”
About Federal Anti-Indian Law. The Legal Entrapment of Indigenous Peoples by Peter P. d’Errico. Part 1
Allow me to start with a detour for context, while introducing the qualifier ‘Anti-Indian’ in the title. D’Errico steadfastly deploys this qualifier to emphasize that Federal Indian Law (the official term, embodying the colonizer’s ‘view from the ship’) ignores Indians as human beings and peoples, while the term ‘Indians’ is in itself a faux construct, since “Indians” actually live in India. D’Errico isn’t playing a naming games here: he tells “[s]tories of dispossession and domination of Indigenous peoples” – stories that are “often elided” in the doctrine of discovery and the “pretense” of conquest, rather than the conquest itself [which could be lethal at times].
Here’s the detour.
In his substack, dr. Daniel Nagase – whose medical license was pulled after he rescued the lives of three elderly patients by giving them ivermectin, with their informed consent – writes:
“Is there a way to design language such that it prevents thought?
Without knowing it, I first encountered language censorship of thought when I learned French.
In French, I learned 5 verb tenses, though French linguists note there are 21.4 What 5 verb tenses allowed me to do in French that I could not do in English without great effort, was describe ideas about future and past that did not exist within the thought system known as the language of English.
So by designing a language where certain concepts are absent, and having minds work within that language from an early age, is it actually possible to erase some ideas from existence?
d’Errico would agree with Nagase’s philosophical point, I think, given the huge amount of legal trickery in the wake of Johnson v. McIntosh (1823); indeed, the *word-magic* inherent in federal [anti-]Indian legislation is so powerful that it pervades rulings of many a ‘progressive’ judge nowadays; the intervention of a ‘conservative’ judge (Clarence Thomas) was required to pinpoint the “schizophenia” that was part and parcel of this persistent legal practice. (Anti-Indian Law, pp. 96-100) [to be cont’d]
Due to the terminology, the implications, not to mention those pitfalls of parentheses, it took me hours to get the above text (hopefully) right up to this point; which echoes Daniel Nagase’s mention of the “great effort” it took him to “describe ideas about future and past that did not exist within the thought system known as the language of English.” This even deepens my appreciation for the way d’Errico guides unsuspecting readers through these treacherous waters of the system of domination.
D’Errico describes a wealth of cases, spanning two centuries; however, the result is the very opposite of a dreary list. As we wade through long lists of precedents (prior court cases), our insight widens and deepens. The entire book is set op as a well-designed course with 7, perhaps 8 day-long sessions.
One take-away is that legislature as conceptualized by judge MacIntosh doesn’t reflect US Law, but a state of exception (laid out by Carl Smitt and – later – Giorgio Agamben), a weird orchestration of heterogeneous sources of sovereignty:
1. The US as a Federation (Canada: British Crown);
2. The US states (Canada: provinces) and
3. Indigenous nations [current misnomers: ‘tribes’ or ‘citizens’).
Under the system of domination – sanctioned by papal bulls and royal charters during the 15th and 16th centuries – sovereignty takes a backseat when it comes to indigenous nations. D’Errico makes it abundantly clear (and he does so in crystal-clear language) that racism or civil rights are not KEY issues:
‘A civil rights approach is not only inappropriate to Native Rights, it actually undrmines Native rights by assimilating Native issues into the constitutional citizenship framework. This is exactly how the various “friends of the Indian” campaigns aimed to “solve the Indian problem” by absorbing Native persons and extinguishing Native peoples.’ [p.113]
It was worth my while, Peter! I even begin to think the 'anti-trilogy' by you and the "two Stevens" [Newcomb & Schwarzberg] could be he beginning of a something new, well, not new perhaps, but stronger!
Nevertheless, racism does afflict indigenous people[s], as d’Errico is quick to point out. Which reminded me of something else.
In the heyday of eugenics, ‘heathens’ were transmogrified/secularized into “a subordinate and inferior class of beings…subjugated by the dominant race.” [p.113]
This smacks of anti-Indian, indeed democidal policies pushed by eugenicists (and white supremacists) like the Virginian bureaucrat Walter Plecker. He did embody one aspect of the domination system, did he not?
[found in “War Against the Weak. Eugenics and America’s Campaign to Create A Master Race” by Edwin Black. pp 161-65; 169-172; 177-181]
Eugenics did affect Indigenous Nations, as evidenced above (although one could say Edwin Black's appellation 'American Indians' is not terribly accurate). But after giving it more thought, I don't think this adds much - if anything - to our understanding of the century-old system of domination born under Christendom.
just discovered an article from 2022 about the Pope's visit to Canada and his apology over the abuse of Native Americans in the government-sponsored religious boarding schools.
But native people want more than just an apology. They want him to rescind the papal bulls that constitute the Doctrine of Discovery. So it looks like they see the situation clearly and are asking for what really needs to happen.
I really appreciate how you bring it out from a focus on native peoples and land to encompass all of humanity and every aspect of our present world situation.
You know, Part 3 of Abya-yala that you are just beginning to read exposes how when the colonies of the New World were "liberated" and became states, they simply continued the domination system under new auspices and new rulers (even more so).
This seems a direct parallel to what you were talking about with the "decolonization" movement in Africa, though I don't know much about that.
So important! Thank you so much. You might want to make a clip of this - it's a lot for most of us non academics to weed through the intros and the law aspects, if we don't have the background. But once he starts talking about the Ruth BG part, it becomes pretty accessible.
Yes, I almost quit listening during the introduction, but I'm super glad I stuck with it to the end. Excellent presentation by all three panelists!
Peter, I'm wondering if you might be able to help me. I've translated what I feel is an important book on the 500 year history of the conquest of indigenous America, North, South and the Carribean. It discusses some of the things you talk about like the Papal Bull that divided the "New World" between the Spanish and the Portuguese; various laws affecting the Indians in the U.S. and Canada; widespread land theft, etc., etc.
I've translated the book from Spanish in collaboration with the author, Pedro Ceinos, from Spain. We feel that there is no book quite like this. If you're familiar with Eduardo Galeano's Memory of Fire, it's something like that in style, but with an exclusive focus on indigenous people.
But I feel a bit daunted by the publishing world and have been having doubts since I'm not a credentialed translator and the author does not appear to be well known even though he is something of a prolific writer.
I see you as someone who has the welfare of indigenous people at heart, and that's why I'm asking your help, because this book helps to expose and to understand the transnational processes that have affected indigenous peoples, similar to what you are doing in a way, but with a broader stroke.
Is there any way you might be able to connect me with an agent or a publisher who would be interested in this book. I would also be very happy to have your opinion of the book itself if you were interested in taking a look.
Thanks for your reply. I would consider sending you an electronic copy of the book if I have somewhere to send it to.
As I said, I feel a bit daunted about the publishing process. Also, I read recently in a pamphlet of the American Literary Translators Association a brief testimony of a translator who said that all of his book contracts came about through some kind of networking. I have the sense that this would be key in my case because I am looking for an editor who is actually interested in the material, not just in a good seller. In fact, that is why I myself accepted translating the book when I was queried by the author.
I ‘m impressed with your work, especially the analysis and I felt your thoughts are great to follow you. At the same time to understand Johnson & Graham’sLessee v. Mclntosh I read the decision of US supreme Court. https://supreme.justia.com/cases/federal/us/21/543/ And I wrote an article.
This is great. Perhaps the most succinct and lucid presentation on the subject of “federal Indian law”--which my friend Steve Russell used to call “federal Indian control law” and which after this presentation will increasingly become known as “federal anti-Indian law”--the best short presentation that is available on this subject that I am aware of. It’s less than fifty minutes and should be required viewing in every law school as well as seen in college courses throughout the country and by concerned citizens everywhere.
I agree! “federal Indian control law”.= “federal anti-Indian law”
Peter, your company is my company. You have hit the mark, whatever may be the view from the point of launch. Be well, friend.
Peter, Thank you for giving me the opportunity to talk to you here . I wrote an article for the newsletter "Ureshipa −Charanke." (『ウレシパ・チャランケ』)
『ウレシパ』”(Ureshipa)” means nurturing each other in Ainu language. and 「チャランケ 』”(Charanke)”means thoroughly discuss and advocate in AINU language.
And the title of my article is "Retracted the “Doctrine of Discovery' and Still Asserted the “Doctrine of Discovery'.
The “Doctrine of Discovery “originally emerged from 15th-century Christian doctrine, was inherited by the United States, and was codified into domestic law (judicial precedence ) by Chief Justice Marshall (1823) ,representing the legal expression of colonialism. It allows for the lawful theft and robbery of indigenous lands.
In the world, the “Doctrine of Discovery “ is strongly condemned as a legal basis for colonialism, legitimizing the theft and robbery of indigenous lands. This Doctrine has been criticized by indigenous movements worldwide, to the extent that even the Vatican has been forced to retract its support. Nevertheless, this legal doctrine persists and continues to be applied in courts as exemplified by Marshall's three landmark decisions.
In Japan, the government and parliament have prohibited salmon fishing by the indigenous Ainu people throughout Hokkaido. Therefore, there should be a strong appeal to the Japanese government and parliament not to prohibit Ainu salmon fishing. One Ainu group has filed a lawsuit against the ban on salmon fishing. However, the issue is that the lawyers in the lawsuit are using Marshall's "Doctrine of Discovery" to argue their case. The lawyers argue as follows: The Doctrine of Discovery limits the external sovereignty of indigenous peoples but does not restrict their internal order. Therefore, they claim that the Ainu people's internal right to salmon fishing can be asserted against the Japanese state.
However, I consider this argument to be self-defeating for Ainu . As already stated, the Doctrine of Discovery is a principle of domination and justifies colonialism. Therefore, Chief Justice Marshall's theory should be refuted, and it should not be employed by indigenous Ainu people.
Very good statement! The continued use of the Doctrine to support Indigenous rights is indeed problematic. It is similar to the way segregation and slave laws were used to support Black people and slaves rights!! Those laws were domination, but they had small — very small — 'rights' for the dominated people: For example, the 'right' not to be punished too severely by the master. Very strange that we are stuck in this limited understanding! Thank you for your writing about the Ainu!
My article is published in Yamanashi prefecture, Japan,It’s a kind of News Letter. Could I write its outline, here on your HP? Thanks for your interest of my article.
The video I watched was “What is Federal Anti-Indian Law?”
Yes... see if you can put the outline in a comment here....
Hello Peter,
I wrote comments on your - wonderful - book.
Part 1
About Federal Anti-Indian Law. The Legal Entrapment of Indigenous Peoples by Peter P. d’Errico. Part 1
Allow me to start with a detour for context, while introducing the qualifier ‘Anti-Indian’ in the title. D’Errico steadfastly deploys this qualifier to emphasize that Federal Indian Law (the official term, embodying the colonizer’s ‘view from the ship’) ignores Indians as human beings and peoples, while the term ‘Indians’ is in itself a faux construct, since “Indians” actually live in India. D’Errico isn’t playing a naming games here: he tells “[s]tories of dispossession and domination of Indigenous peoples” – stories that are “often elided” in the doctrine of discovery and the “pretense” of conquest, rather than the conquest itself [which could be lethal at times].
Here’s the detour.
In his substack, dr. Daniel Nagase – whose medical license was pulled after he rescued the lives of three elderly patients by giving them ivermectin, with their informed consent – writes:
“Is there a way to design language such that it prevents thought?
Without knowing it, I first encountered language censorship of thought when I learned French.
In French, I learned 5 verb tenses, though French linguists note there are 21.4 What 5 verb tenses allowed me to do in French that I could not do in English without great effort, was describe ideas about future and past that did not exist within the thought system known as the language of English.
So by designing a language where certain concepts are absent, and having minds work within that language from an early age, is it actually possible to erase some ideas from existence?
I think yes.”
https://danielnagase.substack.com/p/part-3-the-biggest-psy-op-i-know under the heading ‘False Thought systems
d’Errico would agree with Nagase’s philosophical point, I think, given the huge amount of legal trickery in the wake of Johnson v. McIntosh (1823); indeed, the *word-magic* inherent in federal [anti-]Indian legislation is so powerful that it pervades rulings of many a ‘progressive’ judge nowadays; the intervention of a ‘conservative’ judge (Clarence Thomas) was required to pinpoint the “schizophenia” that was part and parcel of this persistent legal practice. (Anti-Indian Law, pp. 96-100) [to be cont’d]
Part 2
Due to the terminology, the implications, not to mention those pitfalls of parentheses, it took me hours to get the above text (hopefully) right up to this point; which echoes Daniel Nagase’s mention of the “great effort” it took him to “describe ideas about future and past that did not exist within the thought system known as the language of English.” This even deepens my appreciation for the way d’Errico guides unsuspecting readers through these treacherous waters of the system of domination.
D’Errico describes a wealth of cases, spanning two centuries; however, the result is the very opposite of a dreary list. As we wade through long lists of precedents (prior court cases), our insight widens and deepens. The entire book is set op as a well-designed course with 7, perhaps 8 day-long sessions.
One take-away is that legislature as conceptualized by judge MacIntosh doesn’t reflect US Law, but a state of exception (laid out by Carl Smitt and – later – Giorgio Agamben), a weird orchestration of heterogeneous sources of sovereignty:
1. The US as a Federation (Canada: British Crown);
2. The US states (Canada: provinces) and
3. Indigenous nations [current misnomers: ‘tribes’ or ‘citizens’).
Under the system of domination – sanctioned by papal bulls and royal charters during the 15th and 16th centuries – sovereignty takes a backseat when it comes to indigenous nations. D’Errico makes it abundantly clear (and he does so in crystal-clear language) that racism or civil rights are not KEY issues:
‘A civil rights approach is not only inappropriate to Native Rights, it actually undrmines Native rights by assimilating Native issues into the constitutional citizenship framework. This is exactly how the various “friends of the Indian” campaigns aimed to “solve the Indian problem” by absorbing Native persons and extinguishing Native peoples.’ [p.113]
[to be Cont'd]
Wonderful to get such detailed comments!! Thank you !!
It was worth my while, Peter! I even begin to think the 'anti-trilogy' by you and the "two Stevens" [Newcomb & Schwarzberg] could be he beginning of a something new, well, not new perhaps, but stronger!
My "reviewing routine" of yore went rusty - no regrets here. I prefer a campfire setting with lots of dialogue.
Part 3
Nevertheless, racism does afflict indigenous people[s], as d’Errico is quick to point out. Which reminded me of something else.
In the heyday of eugenics, ‘heathens’ were transmogrified/secularized into “a subordinate and inferior class of beings…subjugated by the dominant race.” [p.113]
This smacks of anti-Indian, indeed democidal policies pushed by eugenicists (and white supremacists) like the Virginian bureaucrat Walter Plecker. He did embody one aspect of the domination system, did he not?
[found in “War Against the Weak. Eugenics and America’s Campaign to Create A Master Race” by Edwin Black. pp 161-65; 169-172; 177-181]
[END]
Eugenics did affect Indigenous Nations, as evidenced above (although one could say Edwin Black's appellation 'American Indians' is not terribly accurate). But after giving it more thought, I don't think this adds much - if anything - to our understanding of the century-old system of domination born under Christendom.
just discovered an article from 2022 about the Pope's visit to Canada and his apology over the abuse of Native Americans in the government-sponsored religious boarding schools.
But native people want more than just an apology. They want him to rescind the papal bulls that constitute the Doctrine of Discovery. So it looks like they see the situation clearly and are asking for what really needs to happen.
https://globalnews.ca/news/9026698/papal-apology-renounce-doctrine-of-discovery/
Check out the Redthought webinar on the Pope's "Penitential Pilgrimage":
https://vimeo.com/785872087
It seems like that video was made before the Vatican actually issued the statement repudiating the Doctrine. It that right?
I'm guessing you've had further discussions and further analysis since then. Can you share that?
CBS on the Vatican statement repudiating the Doctrine of Discovery
https://www.cbc.ca/news/canada/vatican-reject-discovery-doctrine-indigenous-demands-1.6795728
here's a link to the full Redthought presentation... maybe we dealt with the statement later in the discussion
Peter, this is excellent! You people are spot on.
I really appreciate how you bring it out from a focus on native peoples and land to encompass all of humanity and every aspect of our present world situation.
You know, Part 3 of Abya-yala that you are just beginning to read exposes how when the colonies of the New World were "liberated" and became states, they simply continued the domination system under new auspices and new rulers (even more so).
This seems a direct parallel to what you were talking about with the "decolonization" movement in Africa, though I don't know much about that.
Tobin - I emailed you a PDF file of slides we used for a presentation on the vatican statement. Apparently video not yet up on site.
I'm reviewing it. thanks
Excellent presentations, thanks much!
So important! Thank you so much. You might want to make a clip of this - it's a lot for most of us non academics to weed through the intros and the law aspects, if we don't have the background. But once he starts talking about the Ruth BG part, it becomes pretty accessible.
I keep working on the accessibility!!
Yes, I almost quit listening during the introduction, but I'm super glad I stuck with it to the end. Excellent presentation by all three panelists!
Peter, I'm wondering if you might be able to help me. I've translated what I feel is an important book on the 500 year history of the conquest of indigenous America, North, South and the Carribean. It discusses some of the things you talk about like the Papal Bull that divided the "New World" between the Spanish and the Portuguese; various laws affecting the Indians in the U.S. and Canada; widespread land theft, etc., etc.
I've translated the book from Spanish in collaboration with the author, Pedro Ceinos, from Spain. We feel that there is no book quite like this. If you're familiar with Eduardo Galeano's Memory of Fire, it's something like that in style, but with an exclusive focus on indigenous people.
But I feel a bit daunted by the publishing world and have been having doubts since I'm not a credentialed translator and the author does not appear to be well known even though he is something of a prolific writer.
I see you as someone who has the welfare of indigenous people at heart, and that's why I'm asking your help, because this book helps to expose and to understand the transnational processes that have affected indigenous peoples, similar to what you are doing in a way, but with a broader stroke.
Is there any way you might be able to connect me with an agent or a publisher who would be interested in this book. I would also be very happy to have your opinion of the book itself if you were interested in taking a look.
Without seeing the book, I can't offer much help... My. publisher, Praeger, is now part of Bloomsbury, where I found this info: https://www.bloomsbury.com/uk/discover/bloomsbury-academic/authors/submitting-a-book-proposal/
You might also contact Chicago Review Press, which publishes Steve Newcomb's Pagans in the Promised Land:
https://www.chicagoreview.org/about/submissions/
Also, try Ethics Press, which publishes Steve Schwartzberg's Arguments Over Genocide:
https://ethicspress.com/pages/notes-of-guidance-for-authors
I hope this is helpful.
Good luck...
Ethics press says they publish for academic settings, not for the general public, so that would not be a good fit.
I'll look into the publishers you've suggested.
Thanks for your reply. I would consider sending you an electronic copy of the book if I have somewhere to send it to.
As I said, I feel a bit daunted about the publishing process. Also, I read recently in a pamphlet of the American Literary Translators Association a brief testimony of a translator who said that all of his book contracts came about through some kind of networking. I have the sense that this would be key in my case because I am looking for an editor who is actually interested in the material, not just in a good seller. In fact, that is why I myself accepted translating the book when I was queried by the author.
send it to derrico@umass.edu
Ok, thanks for the address.
So today I've written an article higlighting your video and the Doctrine of Discovery.
Would you care to take a look before i publish and tell me if I got things straight?
Draft link:
https://totheroot.substack.com/p/51b5db9d-83d1-4520-8652-9fac850d4e01
Tobin - You've got the basic situation well-presented...
One correction: I graduated from Yale Law School. Not Harvard.
One more: The move away from explicit mention of 'christian discovery' was in 1955, middle 20th century ! (not early 1900s)
Thanks!
Peter,
I read your tretise “ JOHN MARSHAL; INDIAN LOVER ? マーシャルはインディアンの恋人か？) so many times.
https://www.umass.edu/legal/derrico/marshall_jow.html
I ‘m impressed with your work, especially the analysis and I felt your thoughts are great to follow you. At the same time to understand Johnson & Graham’sLessee v. Mclntosh I read the decision of US supreme Court. https://supreme.justia.com/cases/federal/us/21/543/ And I wrote an article.
Today I watched the youtube video.
Thank you. See you again soon.また来ます。ありがとう！ありがとう！
Where did you publish your article? Is it online? I'd like to see it....
Which youtube video did you watch?
I'm happy you are finding my writing helpful! Thank you!