Native America, Discovered and Conquered: Thomas Jefferson, Lewis & Clark, and Manifest Destiny

Robert J. Miller Native America, Discovered and Conquered: Thomas Jefferson, Lewis & Clark, and Manifest Destiny Westport, CT: Praeger Press, 2006Reviewed by Jerry HammersmithIn his review of this book in Ground Swell, Dr. William Batt of Albany, NY says:Author Robert J. Miller, an Associate Professor at the Lewis & Clark Law School in Portland, Oregon, as well as being Chief Justice of the Court of Appeals for the Confederated Tribes of the Grande Ronde Community of Oregon, is a citizen of the Eastern Shawnee Tribe of Oklahoma. In this book, he moves outside of the Eurocentric paradigm of conventional legal reasoning characterizing so much of U.S. and Canadian notions of real property. Miller presents a tightly written challenge to five hundred years of this tradition. He argues (p.175) that American history and law can take on a richer meaning and understanding within the contexts of the legal background and justifications for many historical, law related and political principles.This reviewer argues that the same observations are as true of Canada and other colonial states as they are of the U.S.A. In both the U.S.A. and Canada, the Doctrine of Discovery was explicit-finders, keepers.Although Miller's book is six years old, carries some messages of current application not only for the U.S.A., but also for Canada. Beginning with popes in the 11th century, the Doctrine of Discovery was widely understood by the time North America was being invaded and occupied by Europeans. England initially claimed sovereign possession of most of the continent, assuring that land titles came directly from the King's grace. Batt continues:Miller outlines ten elements to the Doctrine of Discovery (pp. 6 - 8):1. First Discovery;2. Actual Occupancy and Current Possession;3. Preemption/European title;4. Indian title;5. Tribal limited sovereign and commercial right;6. Contiguity;7. Terra nullius;8. Christianity;9. Civilization;10. Conquest.This reviewer adds that although, following George III's Royal Proclamation of 1763, immigrants in the U.S.A. responded with a revolution while immigrants in Canada did not, in both cases Europeans and their descendents claimed property and sovereign right over Indigenous lands. First discovery was considered to create a claim, even if considered incomplete, of title. In what was to become the U.S.A., a revolution was fought over whether the British Crown or Immigrants' Institutions would claim title to Indigenous lands and resources. In what was to become Canada, immigrants stayed loyal to the Crown and treaties were negotiated between the Crown, in the right of Canada, and Indigenous Nations.Thomas Jefferson, in the U.S.A., like Sir John A. MacDonald at a shortly later time in Canada, envisioned a trans-continental nation well before many of his compatriots did. This makes them each a pivotal figure in the history of his nation.This reviewer agrees with reviewer Dr. Batt that Robert Miller is too sophisticated a scholar to use contemporary political beliefs as a basis on which to judge values and practices two centuries ago. Still we must understand Jefferson and MacDonald, as products of their time, in revisionary light.Batt observes that Miller recognizes that in the U.S.A. the legacy of treaties as well as statutory and case law leaves parties as seeing themselves locked into a cul-de-sac, limiting flexibility to rectify past injustices. This reviewer observes that while much of the same is also true in Canada, the courts up to and including the Supreme Court of Canada, have occasionally and unpredictably shown a willingness to rectify past injustices.As Batt points out, Miller begins his book by proposing that it is time for the United States to try to undo more than 200 years of the application of the ethnocentrically, racially and religiously inspired Doctrine of Discovery to American Indians and nations (p. …

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