Category Archives: Autobiography

WHMP PODCAST: Interview With Professor Peter d’Errico About His New Book — November 18, 2022

AFTERNOON BUZZ: 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.

WHMP Radio: 101.5fm / 1240am / 1400am / WRSI-HD2 — Amherst, Northampton, and Greenfield, Massachusetts

“INDIGENOUS PERSPECTIVES” PODCAST: Interview with Peter d’Errico about his new book: Federal Anti-Indian Law: The Legal Entrapment of Indigenous Peoples *

“Indian Law Turf Wars: Contesting Native Lands and History” : “Indigenous Perspectives” Monthly Broadcast on HealthyLife.Net, # 23– October 27, 2022. **

FOR AUDIO PODCAST: http://www.ecologia.org/news/23.IndianLawTurfWars.mp3 (58 min)

PDF TRANSCRIPT : “23.IndianLawTurfWars” – available from: https://www.researchgate.net/publication/364949987_23IndianLawTurfWars [accessed Nov 03 2022].

Image credit: Emma Cassidy/Survival Media Agency https://brewminate.com/wp-content/uploads/2018/06/062318-03-Native-American.jpg Creative Commons license.

* Federal Anti-Indian Law: The Legal Entrapment of Indigenous Peoples, by Peter d’Errico. Praeger, 2022. https://www.abc-clio.com/products/a6462c/

** 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.

BOOK PUBLISHED: Federal Anti-Indian Law: The Legal Entrapment of Indigenous Peoples

Book Cover: Federal Anti-Indian Law
CLICK BOOK COVER IMAGE FOR FURTHER INFORMATION

September 27, 2022, Praeger, ABC-CLIO

Hardcover: 978-1-4408-7921-0
eBook Available: 978-1-4408-7922-7

Publisher’s Description

In 2020, in McGirt v. Oklahoma Justice Neil Gorsuch said Congress has “authority to breach its own promises and treaties” with Native nations based on “Christian discovery” precedents.

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 educator Peter P. d’Errico argues that the U.S. government’s assertion of absolute prerogative and unlimited authority over Native peoples and their lands is actually a suspension of law.

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

Reviews

Federal Anti-Indian Law is a gut-wrenching analysis. My whole career grappled with the contradictions d’Errico illuminates and dissects. One finally comes to understand Louise Erdrich’s rotten noodles metaphor for U.S. laws that dominate Indigenous Peoples.” —Sarah W. Barlow, Retired Attorney, Albuquerque, NM

“In this ground-breaking work, d’Errico launches a frontal attack on the whole field of American law pertaining to Indigenous Peoples. He exposes not only the racism, but also the Christian discovery roots of federal domination of the Indian nations, and then goes beyond criticism, offering a way out of this unacceptable situation. This book is a must-read for anyone wanting to understand American history and the questionable basis for U.S. sovereignty.” —Kent McNeil, Distinguished Research Professor (Emeritus), Osgoode Hall Law School, York University, Toronto, Canada

“This book covers an enormous area of historical and modern-day federal Indian law, which the author calls ANTI-Indian law. Like an iconoclast in the truest sense of the word, d’Errico attacks the colonial foundations of Indian law and challenges professors, historians, Indian nations’ leaders, and tribal attorneys to stop relying on Supreme Court case law that is built on disastrous premises and instead to resist and reverse these foundational principles.”—Robert James Miller, Professor, Sandra Day O’Connor College of Law at Arizona State University

Federal Anti-Indian Law provides a significant contribution in establishing a proper context in which to engage in the exercise of identity. Governmental representation at all levels, academia at all levels, and anyone who ‘cares’ about the Original Free Nations and Peoples of this land should have a better understanding of who these nations and peoples are and where they come from. ‘Where are we all going?’ is the real question. This book represents a contribution of the type of ‘truthful’ and ‘respectful’ communication that is absolutely necessary to know where the future will collectively lead us.” —JoDe Goudy (Yakama Nation), Owner, Redthought.org

Federal Anti-Indian Law is a paradigm-shattering work. Professor d’Errico has spent decades teaching, studying, and reflecting upon the system of ideas the U.S. government has used to establish its claim of a right of domination over the original nations and peoples of the continent.” —Steven T. Newcomb, Director, Indigenous Law Institute, and author of Pagans in the Promised Land: Decoding the Doctrine of Christian Discovery 

“Many Americans have never heard of the Christian Doctrine of Discovery or understood how the federal government retains nearly unlimited authority over Native lands and nations. Professor d’Errico explains how, even today, Indigenous Peoples in the United States live under an ‘exception’ to U.S. law—an eye-opening revelation for many readers. Federal Anti-Indian Law is an accessible read that reveals the interplay of law with history and should not be limited to legal classrooms—it’s an important and enlightening book for all people, Indigenous and non-Indigenous alike.”—Robert Maxim II (Mashpee Wampanoag), Senior Research Associate, Brookings Institution 

“Covering nearly every influential legislative act, legal decision, and federal policy, Peter d’Errico does not take a ‘bird’s eye view’ of U.S. Indian law, but brings us down to the ground, revealing a vast, long, and lucid view of the quagmire of ‘anti-Indian law,’ a system designed to dispossess and dominate, which rests on the ancient foundation of the Christian doctrine of discovery. Under his acute analysis, and with engaged storytelling, the shaky foundation beneath the system gives way, opening more sustainable paths to a just future.”—Lisa Brooks, Henry S.Poler ’59 Presidential Teaching Professor of English and American Studies, Amherst College; Author of Our Beloved Kin: A New History of King Philip’s War

About the Author

Peter d’Errico, JD (LLB) is professor emeritus of legal studies at the University of Massachusetts at Amherst, where he has taught for more than 30 years. He is a member of the New Mexico Bar and was staff attorney at Dinébe’iiná Náhiiłna be Agha’diit’ahii (Navajo Legal Services). He has litigated Indigenous land and fishing rights as well as Native spiritual freedom rights in prisons, and he consulted of-counsel in other Native cases. He is a regular presenter of online seminars about Indigenous peoples’ legal issues at Redthought.org and elsewhere, including National Endowment for the Humanities Summer Institutes for Teachers on “Teaching Native American Histories.”

Plains Indian Art: A Living Legacy

“The Plains Indians: Artists of Earth and Sky” is in its final stage at the Metropolitan Museum of Art in New York City (through 10 May 2015). An amazing and profound exhibit of American Indian art, it deserves all the raves it gets. The reviewer for Indian Country Today called it “a rare and important showcasing of the art and creativity of some of the original inhabitants of Turtle Island.” The New York Times reviewer described it as “one of the most completely beautiful sights in New York right now.” A reviewer in the New Yorker magazine said the show is “the most comprehensive of its kind...exactingly selected and elegantly installed.”

I visited the exhibition in late March. My word for the experience: overwhelming. I was not alone. Hundreds of people, many visibly moved—some even shaken—by the power of the art and artifacts, made their way through the gallery. As I moved from one piece to another, thoughts and emotions swirled through me, pushing me to contemplate what this exhibit means.

The impact of the exhibition hits immediately. Two pipes displayed at the entrance bring home the significance of prayer and tobacco, reminding us that smoking encompasses a ceremony of breath. The sculptural forms of the pipes are mythic figures, intercessors and companions in making breath visible. Visible prayer. Far cry from today’s public health campaigns against tobacco adulterated with chemicals.

A Quapaw tanned leather robe is complexly painted to tell a battle story and show how the Quapaw cooperated with French traders. Its center holds images of celestial powers—sun and moon. The robe carries so much content so vividly portrayed that I could feel the lives of the villagers and warriors, the traders, the lands on which they lived. Even after three centuries (the curators date the robe c. 1740), the energies of cultures meeting, cooperating, conflicting are palpable. The robe, like the pipes, is alive.

Another robe, thought to be Illinois, depicts a mythic bird, with sharp geometric shapes and lines that seemed to me to foreshadow the rise of modern art. The museum catalog, which I bought as a record of the exhibit, confirmed this, stating that the robe displays “all the tenets of the finest geometric painting…: intricately balanced composition, precisely controlled and sharply delineated forms, elongated tapering lines, small unpainted elements, and shifting focal points and rhythmic movements.”   
The displays of clothing—women’s dresses, men’s shirts—pushed me to an emotional edge. They are stunning works of art, but, more significantly, they carry intense energies of those who made and wore them. I felt their presence. If you think that’s strange, consider these remarks in a recent New Yorker magazine article by NYU Professor Jessamyn Hatcher, an expert in textile and fiber art: “Clothing is different from most other kinds of objects in museums. Garments never lose the imprint of the body that was once inside them; indeed, the chemical reactions between the materials of the garments and the wearer’s body are ongoing.”

In a move of great significance, the texts on the walls of the exhibit and in the catalog speak in the present tense, unlike so many discussions of Indians that deploy past tense verbs, as if Indians no longer exist. The exhibition, though it presents primarily old works, makes clear that Indians exist, here and now; that Indians have survived centuries of invasive colonialism and domination. 

This point is emphasized by the inclusion of contemporary works by Native artists, which, in the words of Gaylord Torrence in the Introduction to the catalog, “reveal lasting forms along with evolving concepts.” The exhibit and catalog, he writes, “present a view of Plains Indian aesthetic traditions over the long history…and as they are being redefined today.” 

There is a past tense to the exhibition, simply because the older objects represent an era that no longer exists: the era defined by horses and buffalo. But even this, as Colin Calloway explains in an opening essay in the catalog, “was a phase in a story of perpetual change.” Horses and buffalo still live, but they are not the defining elements of contemporary Plain cultures.

The catalog authors are forthright in naming the historical factors that disrupted Plains Indians and their art. Torrence: “Artistic expression from this period…reflects the efforts of missionaries, forced educational policies, effects of Wild West shows, and perceptions of popular American culture.” Calloway: “The United States demanded the destruction of their way of life as well as their military subjugation.”

Part way through the exhibit, I recalled the epithet about Indian trade beads—that Indians are so simple they valued  “trinkets.” It dawned on me that the pervasive integration of trinkets—beads, buttons, small metal objects—with such native ornamentation as porcupine quills and feathers marks a sophisticated aesthetic consciousness of daily life. Indian art is integral to everyday objects, not a separate category of performance.

Arthur Amiotte (Oglala Lakota) addresses this in an opening essay in the catalog. He writes, “art is where the underpinnings of tribal thought and values are encrypted.” He adds, the adornment of clothing and other items to signify “successful encounter[s] with spiritual powers” and “success in the hunt or battle” amount to “message systems advocating collective tribal pride.” 

Amiotte discusses how these practices and materials changed in response to U.S. government prohibition of Indian ceremonial and social occasions: “Some…pieces were exchanged for food and household necessities at the newly established trading posts.” Ornamented clothing also became “decorative outfits for show performers” in “Wild West tours.”

“Today,” Amiotte continues, tribal arts and ancient beliefs “are once again conjoined…imparting a clear message: ‘We have survived, we are here today, well-adorned, in joyous celebration of our heritage as Native Americans.'”

“The Plains Indians: Artists of Earth and Sky” opened in Paris, at the Musée du quai Branly, traveled to the Nelson-Atkins Museum of Art in Kansas City, and completes its journey at the Metropolitan Museum in New York. It draws on the strengths of each of these institutions, in a collaborative effort to recognize and promote “masterpieces of non-Western art”; in this case, the “sophistication and power of Plains Indian art.”

The exhibition catalog is a work of art in itself, containing images and detailed descriptions of every item, together with a series of informative and scholarly introductions. The Met has placed digital images, videos, and an audio guide online, so those who cannot visit in person may yet experience the power and beauty of the work.

Navajo Legal Services stories

Dinebeiina Nahiilna Be Agaditahe, the Navajo Nation Legal Services program, was my introduction to American Indian legal issues. I was one of the first attorneys hired in the Shiprock office, in 1968. Legal Services was one of the newest forms of law practice available at the time, part of Lyndon Johnson’s Great Society War on Poverty that the president hoped would somehow balance out or neutralize the War on Viet Nam. It was just the sort of thing I believed I could deal with, or at least survive, being pretty sure I couldn’t deal with or survive the kinds of practice most of my Yale Law School classmates were aiming for —big New York firms, Washington bureaucratic jobs, and judicial clerkships.

Little did I know that the Navajo —and not just their legal services program— would open my mind to ontological issues, circling around a central question: what does it mean to be a human being? The Navajo taught me that the questions I was asking myself were about life as much as about law. I went there looking for a chance to use law to do something useful and discovered that the question of usefulness is itself culturally determined. In fact, when I found out just how useless I felt as a lawyer for Navajos caught in the maze of Anglo laws, I simultaneously learned what my usefulness was from the point of view of Legal Services and the Great Society: I was part of a morality play, albeit a morality that was also political.

One might say that until the establishment of legal services the American legal system functioned without all the components necessary for due process. The law provides whatever process (and processes) legal theory and doctrine determine are needed for a complete and proper legal system; as the saying goes, due process means “all the process that is due.” Some processes are built into the Bill of Rights of the Constitution, such as trial by jury and the requirement that warrants be issued only upon probable cause. Even these are not static: court decisions continue to rework definitions of “jury” and “probable cause” and revise underlying concepts of “peers” and “searches.” Due process has changed even as the words in the Bill of Rights have remained the same.

The notion of a “right to a lawyer” is of comparatively recent origin, and then only with regard to criminal law. In civil law, there is not really any such right at all; but Great Society legislation of the late 1960s established programs to provide lawyers in civil cases, as part of the War on Poverty. The justification was that people who cannot afford lawyers are at a disadvantage in protecting their legal rights, and that this has economic consequences —the perpetuation of their poverty. The legal services programs of the Great Society were proposed as a legal means to an economic end: lawyers for poor people would help eliminate poverty and thereby enhance the overall economy.

Whatever their economic merit, legal services programs certainly had political repercussions: aggressive lawyers, mostly young idealists, brought lawsuits challenging “business as usual.” In many instances, lawyers’ efforts were coordinated with the work of community organizers, who scouted for likely clients and used the possibility of litigation as an organizing tool.

My first week in Shiprock —then the Navajo community most engulfed by surrounding Anglo economy— brought me potential cases for challenging business practices that discriminated against Navajos and took advantage of their poverty. These cases could be vehicles for changing the legal landscape, not by adding any new due process, but by implementing the processes that were available to anyone who had access to a lawyer. One of these early cases stands out in my memory: the car dealer case. It reinforced lessons learned in law school: about how absurd law can be, and how significant is possession (“nine-tenths of the law”).

The car dealer and the stationery

In 1968, there were no car dealers in Shiprock, or, so far as I know, anywhere else in Navajoland. Navajos who bought cars went off-reservation —in this case, primarily to the town of Farmington, New Mexico. There, they were treated as second-class citizens, tolerated only for the money they might spend. This racism against Navajos in the border towns around Navajoland surprises visitors from the East Coast, where American Indians (or, more recently, Native Americans —more on that in another post) are viewed through the twin filters of time and distance, through which they appear as grand historical characters. Up close and in the present, in Farmington, Navajos were viewed as less than fully human, or, if human, as less than fully developed (the development standard is Anglo, acquisitive, boomer).

A Navajo car buyer, in Farmington, is an opportunity for easy profit. The system was honed to a routine; it depended on common legal practices and contract provisions that we set out to challenge through a class action lawsuit. A class action is group litigation: one or a few individuals are named as plaintiffs and are alleged to represent other individuals similarly situated, who are too numerous to name. The first step toward a class action is awareness that we are observing a practice that affects large numbers of people, raises a common pattern of facts, and implicates the same or similar legal issues.

Time and again, within the first few weeks, I heard stories of automobile repossessions based on failure to make payments under contracts that called for a “balloon payment” —a large, usually final, payment at the end of a long series of smaller monthly payments. The balloon payment is almost a guarantee of default, in the context of poverty: the immediate promise of “easy payments” combines with the perennial hope that things will get better, to entice a buyer into signing what almost inevitably turns out to be an impossible agreement. In New Haven, I had seen furniture store contracts with balloon payments structured to allow repossession of every item of furniture if default in payment occurred with regard to any single item.

Farmington car dealers sold and repossessed the same cars over and over; we could document this with our clients’ papers. Each car was like a goldmine, producing profit until it literally collapsed. Even a crash produced profit, because the contracts required the buyer to purchase insurance. We knew that balloon payments had been successfully challenged in other jurisdictions as “unconscionable” under the Uniform Commercial Code. We thought we had a chance to win that argument here; we at least wanted a chance to try.

A lawsuit requires a client; among the many people who came to the office with car repossessions —and sometimes with demands for payments after repossession, to fulfill the terms of the contract— I began to work with a few whom we felt would be best able to withstand the difficulties of a trial. I wanted clients whose particular fact situations would show the most egregious aspects of the practice. Many of our clients spoke only Navajo —and, indeed, this was one factor we thought might weigh as a special element of inequity in the face of greedy car dealers. I worked with our interpreters —Tribal Court Advocates who were fluent in English and Navajo and extremely creative at explaining legal concepts that are exotic even to Anglos— to build a group of plaintiffs who understood and supported what we were trying to do.

Our filing of the class action provoked immediate response in the local Bar Association. At one Bar luncheon, I was accosted by the attorney for the biggest of the car dealers we had sued; he railed at me for being an agitator, stirring up Navajos who had never complained before and who were in fact grateful for the services provided by his client. I was taken aback by this display of personal animosity, having been conditioned to seeing the law profession as a kind of club, where friendships or at least civility prevail in spite of diverging client interests. The local District Attorney, a remarkable example of the professional ideal —he implemented practices to respect defendant’s rights well before the Supreme Court mandated these in criminal law— came to my defense and to counsel me not to worry, saying, “That guy always takes his client’s cases personally.”

I knew that I was taking my client’s cases personally, in the sense that injustices and discrimination directed at them pained me, and I knew that I could be angry about these; but somehow —in ways I sometimes see as a moral defect rather than a strength— I wanted to be able to discuss these problems, even with my adversaries, rather than fight. Fighting, arguing, trying to prove what is obvious to me —these are debilitating experiences. I am continually amazed that I am drawn again and again into social conflict, almost as a duty or a moral obligation, when all I want is to be free of it. In this way, the law has always both repelled and attracted me.

Around this same time, an unrelated and obscure event was occurring in the legal world. The New Mexico Bar Ethics Committee had decided to take up the question whether the Navajo Legal Services Program was engaged in unethical advertising. This was prior to the revision of the American Bar Association prohibition on lawyer advertising, a long-standing part of the tradition that law is a profession and professionals do not advertise. The specific question before the Committee was raised by a complaint from a member of the bar who asserted that the English translation of Dinebeiina Nahiilna Be Agaditahe, the program’s Navajo name, constituted advertising. He asserted that the English phrase at the bottom of our stationery, “lawyers who work for the economic revitalization of the people,” was descriptive of all lawyers and therefore could be advertised by none. After some deliberation, and against the contentions of our program director that the phrase was not descriptive of all lawyers and that in any event it was only a translation of a name, the Committee decided that the English phrase was unethical and could no longer be displayed anywhere.

Meanwhile, the defendants in our car dealer case moved to dismiss, on a variety of grounds, including an assertion that our office was engaged in unethical practice. I knew that the structure of legal services programs had been attacked in other jurisdictions, though not successfully, under old common law doctrines of “champerty and maintenance,” which prohibit third-party financing of a lawsuit. The argument was that the government was funding legal services; it, not the named plaintiff, was the actual client; and the lawyer-client relationship was therefore violated. I prepared to argue that these ethical doctrines did not prevent the government from providing legal services, that this was not the financing of lawsuits, but the provision of a social service.

When the day came that we were in court, I heard the accusation of unethical practice and began to puzzle at what was being said. The defendant’s lawyer was not arguing about the attorney-client relationship or even the grounds of the lawsuit, but was saying something about the stationery on which our court papers were filed. After several moments of bewilderment, I realized that the car dealer attorney was referring to the Bar Ethics Committee decision and saying that our lawsuit should be dismissed because it was filed on unethical stationery! Every page of the pleadings stated the name and address of the law office, with the English translation appearing below the Navajo name. This, the attorney argued, was in clear violation of the recent ruling of the Bar Ethics Committee and should be stopped by this court. Nothing I said was sufficient to prevent the court from granting the motion to dismiss on the spot. There was no leave given to refile on different paper; no way out of filing a new complaint and waiting for a new hearing date on the court calendar.

It is hard to explain something like this to a client, let alone a client for whom the whole Anglo legal process appears as an invasion from another world. Fortunately, another event had occurred in the legal world —this one related to car dealers and not at all obscure: the Navajo Nation had enacted a law banning self-help repossession of automobiles. Self-help reposession means the dealer simply finds and tows away the car. The new law required a Tribal Court order to allow repossession. We still nurtured the idea of a class action suit in state court against the dealers, but now we had an accessible individual remedy in Tribal Court: a client could challenge balloon payment contracts and other such devices in a Navajo court, blocking repossession in the meantime.

Like other legal remedies, the Navajo law on repossession could be effective only to the extent it could be enforced. At first, car dealers continued their old ways and clients were not aware of the new law; by the time a client found out about the requirement for a court order, the car was back on the lot in Farmington, out of Tribal Court jurisdiction.

One afternoon, one of my favorite clients, a man whose energy and enthusiasm for life were palpable, arrived in the office, out of breath and in agitation. He said he might be in trouble. He had been riding into Shiprock with his brother and seen a tow truck with his pickup hitched behind, heading toward Farmington. He told his brother to turn around and give chase, until they came abreast of the truck and forced it to stop. My client told me he pulled out a gun and ordered the driver to unhitch the pickup, which the man did. He then watched the truck drive away and drove his own pickup to my office. I was elated; at last, self-help on our side of the law. It was unorthodox, to be sure, but it saved the truck and gave us a chance to enforce the new law.

Within an hour, I got a call from the car dealer himself, spluttering, “Your guy pulled a gun on my guy.” He demanded some sort of satisfaction. I, relying on attorney-client privilege, said I didn’t know what happened, but assured him that if his agent again attempted to repossess any vehicle without an order from Tribal Court, we would take steps to impound his tow truck. I told my client I thought he was safe and that we were prepared to enforce the new law, if there were another attempt. I never heard of another attempt and I think of this as the case we won on that issue.