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Native America, Discovered and Conquered: Thomas Jefferson, Lewis and…

by Robert J. Miller

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Manifest Destiny, as a term for westward expansion, was not used until the 1840s. Its predecessor was the Doctrine of Discovery, a legal tradition by which Europeans and Americans laid legal claim to the land of the indigenous people that they discovered. In the United States, the British colonists who had recently become Americans were competing with the English, French, and Spanish for control of lands west of the Mississippi. Who would be the discoverers of the Indians and their lands, the United States or the European countries? We know the answer, of course, but in this book, Miller explains for the first time exactly how the United States achieved victory, not only on the ground, but also in the developing legal thought of the day. The American effort began with Thomas Jefferson's authorization of the Lewis & Clark Expedition, which set out in 1803 to lay claim to the West. Lewis and Clark had several charges, among them the discovery of a Northwest Passage--a land route across the continent--in order to establish an American fur trade with China. In addition, the Corps of Northwestern Discovery, as the expedition was called, cataloged new plant and animal life, and performed detailed ethnographic research on the Indians they encountered. This fascinating book lays out how that ethnographic research became the legal basis for Indian removal practices implemented decades later, explaining how the Doctrine of Discovery became part of American law, as it still is today.… (more)

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In Native America Discovered and Conquered, law professor Robert J. Miller examines how the international law concept now referred to as the “Doctrine of Discovery” applied to America’s westward expansion. Miller explains how the principles of the doctrine – developed by Spanish and Portuguese explorers in the 1400s and formally adopted in America in the 1823 Supreme Court case of Johnson v. M’Intosh – influenced Thomas Jefferson’s expansionist plans, delineated Lewis and Clark’s duties, and grew into the policy of Manifest Destiny.

This book offers a fresh look at these common chapters in American history by viewing them through the lens of the Doctrine of Discovery, which Miller describes “in a nutshell” as the idea that when a European, Christian nation “discovered” new lands, the European – later American – nation automatically acquired sovereign and property rights in the new land, subject only to the native peoples’ right to occupy and use the land. When the natives stopped using or wanted to sell the land, they had to sell it to the European or American “conquering” nation and to no other.

Miller sticks to his theme well, tying many loose threads of history into his theory. He clearly outlines ten elements of the Doctrine of Discovery: first discovery; actual occupancy; the right of preemption (the exclusive right to buy the land from the natives); Indian title (their right to occupy and use the land); limited tribal sovereign and commercial rights; contiguity; terra nullis; Christianity; civilization; and conquest (virtual, even if not military). He then refers to these elements as he explains that the Doctrine of Discovery was understood in American politics even before the Supreme Court put a name to it in 1823, and that the Doctrine evolved into the popular concept of Manifest Destiny.

The goal of the book is to “shed new light on the conduct of Thomas Jefferson and Lewis and Clark and on many other events in American history and law” in order to “perceive more clearly how tribal governments and individual Indians lost many of their property and human rights, and their sovereign, self-governing powers.” As Miller argues, American Indians lost these rights and powers without their knowledge or consent, by confiscation based only on the “ethnocentric assumption of the ‘superior genius’ of Europeans.”

Miller poses this as his “ultimate question”:

[W]hether this relic of colonialism and feudalism, and racial, religious, and cultural domination should be relegated to the dustbin of history. Must Americans and American Indians tolerate the Doctrine of Discovery in our present and our future; is it unchangeable, immutable? Is there anything that can be done to erase a “legal doctrine” that has been enshrined in American culture and law for four hundred years?

In answering his own question, Miller takes the “middle ground” between doing nothing and abolishing the Doctrine altogether and letting the chips fall where they may. His proposal is modest indeed, suggesting only that “Congress could consider after lengthy deliberation and with ample tribal input and direction viable ways to make concrete changes in federal Indian law that could begin to rectify some of the damage Discovery has inflicted on tribal and Indian rights.” Clearly, what to do with the deeper understanding gained from Miller’s examination of the Doctrine of Discovery is beyond the scope of his book.

But the fact that Miller does not solve the problems he describes does not limit the value of this book. Native America Discovered and Conquered provides a necessary foundation for understanding the laws and actions that created the modern legal system controlling American Indians today.

Also posted on Rose City Reader. ( )
  RoseCityReader | Mar 23, 2009 |
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Manifest Destiny, as a term for westward expansion, was not used until the 1840s. Its predecessor was the Doctrine of Discovery, a legal tradition by which Europeans and Americans laid legal claim to the land of the indigenous people that they discovered. In the United States, the British colonists who had recently become Americans were competing with the English, French, and Spanish for control of lands west of the Mississippi. Who would be the discoverers of the Indians and their lands, the United States or the European countries? We know the answer, of course, but in this book, Miller explains for the first time exactly how the United States achieved victory, not only on the ground, but also in the developing legal thought of the day. The American effort began with Thomas Jefferson's authorization of the Lewis & Clark Expedition, which set out in 1803 to lay claim to the West. Lewis and Clark had several charges, among them the discovery of a Northwest Passage--a land route across the continent--in order to establish an American fur trade with China. In addition, the Corps of Northwestern Discovery, as the expedition was called, cataloged new plant and animal life, and performed detailed ethnographic research on the Indians they encountered. This fascinating book lays out how that ethnographic research became the legal basis for Indian removal practices implemented decades later, explaining how the Doctrine of Discovery became part of American law, as it still is today.

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