Manataka American Indian Council

 

 

 

 

BOOK REVIEW:

 

 

Native America, Discovered and Conquered

Thomas Jefferson, Lewis & Clark, and Manifest Destiny

By Robert J. Miller

 

 

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."

 

Thus the competition among the United States and European nations to establish claims of who got there first became very important. 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 for the first time explains 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.

 

Miller analyzes the Doctrine of Discovery and shows how Thomas Jefferson and the Lewis & Clark expedition used that international legal doctrine to create Manifest Destiny – the idea that the United States would sweep across the North American continent.  This book grew out of Miller’s three year involvement with the Lewis & Clark anniversary as the representative of the Eastern Shawnee Tribe and an advisor to the National Council of the Lewis & Clark Bicentennial.

 

Miller proves three new ideas that have not been fully addressed anywhere else:
1.  The American colonies, states, and the federal government adopted the international law Doctrine of Discovery and applied it to the Indian Nations from 1620-2006.

2.  Thomas Jefferson and Lewis & Clark used the Doctrine of Discovery to exercise governmental authority in the Louisiana Territory and to claim the Pacific Northwest for the United States.

3.  Manifest Destiny arose from the identical legal elements and policies as did the Doctrine of Discovery.  As a result, the Eurocentric and feudal principles of Discovery were adopted into the American law and policy of westward expansion.

 

 

Miller is a Professor of Law at Lewis & Clark Law School and the Chief Justice of the Court of Appeals of the Grand Ronde Tribe.  He is a citizen of the Eastern Shawnee Tribe of Oklahoma.

Professor Miller is available for speaking engagements  - rmiller@lclark.edu

Foreword by Elizabeth Furse
ISBN-10: 0803215983
Softcover, 240 pp, 6 1/8 x 9 1/4
Praeger Publishers, 9/30/2006
List Price: $22.95  Sale Price: $16.95  

 

Reviews:

To say this book is required reading for those wishing to understand American history is an understatement. Miller has provided an opportunity for readers with varying interests from Constitutional law professor to tribal advocate to public lands users of all types to gain valuable insight into the interconnected web of religion, conquest, human rights, land and equity. One comes away from reading Miller's Native America with a meaningful sense of how irresponsible, and illusory, a folly it is to allow a sense of Providence to blindly guide such things as constitutionally protected rights, domestic and foreign policy with other nations and the relationship and "dominion" over Nature and other "nonbelievers." This is an important time for this book to be published, and one can hope that it will be well read.  ~Journalstar.com (Lincoln, NE)

"There's a  book by a Native American lawyer just published on the subject [of manifest destiny]: Native America, Discovered and Conquered: Thomas Jefferson, Lewis & Clark, and Manifest Destiny by Robert J. Miller. It's one of my Top 50 Lewis and Clark Books picks, available through the Lewis and Clark Road Trips Amazon Associate bookstore. It's one of the most important books to come out of the bicentennial observances."  ~Kira Gale, Author , Lewis and Clark Road Trips http://www.lewisandclarktravel.com/

“Everyone who is interested in Indian Law and the West will have to read this book.”  ~Professor Gerald Torres, University of Texas Law School.

 

Miller's book offers fascinating new insights into Jefferson's Indian policy, the significance of the Lewis & Clark expedition, and the origins of Manifest Destiny ideology in 19th-century America. Miller forces readers to confront the raw assertion of colonial power embodied in the Doctrine of Discovery, and its consistent deployment by the United States in the guise of law.” ~Professor Carole Goldberg, UCLA Law School

 

[T]his is revisionist history in the very best sense of that tradition. Miller reviews historic documents and oft-told stories in a new and original light. This important study gives Native Americans and their role in United States history a richer and deeper meaning through Miller's thoughtful interpretation of the Doctrine of Discovery in the context of its historical, law-related, political principles.” ~Endorsement From Professor Rennard Strickland, University of Oregon

 

Miller's book represents the most comprehensive and thoughtful analysis of the American version of the Doctrine of Discovery to date, its role in the voyages of Lewis & Clark, and its continuing importance in the field of federal Indian Law today.” ~Endorsement From Professor Alexander Tallchief Skibine, Utah Law School  

 

"Through its focus on the Doctrine of Discovery, Miller's book offers fascinating new insights into Jefferson's Indian policy, the significance of the Lewis & Clark expedition, and the origins of Manifest Destiny ideology in 19th- century America. Miller forces readers to confront the raw assertion of colonial power embodied in the Doctrine of Discovery, and its consistent deployment by the United States in the guise of law." ~Endorsement From Carole Goldberg, Professor, University of California, Los Angeles, Law School, co-author of American Indian Law: Native Nations and the Federal System:

 

"This is revisionist history in the very best sense of that tradition. Miller reviews historic documents and oft-told stories in a new and original light. This important study gives Native Americans and their role in United States history a richer and deeper meaning through Miller's thoughtful interpretation of the Doctrine of Discovery in the context of its historical, law-related, political principles."  ~Rennard Strickland, Knight Professor of Law, University of Oregon

"Miller's book represents the most comprehensive and thoughtful analysis of the American version of the Doctrine of Discovery to date, its role in the voyages of Lewis & Clark, and its continuing importance in the field of federal Indian Law today."  ~Endorsement From Alexander Tallchief Skibine, Professor, University of Utah Law School:

 

"Professor Miller's treatment of the Doctrine of Discovery shows us that we still have much to learn about how we came to legitimize our jurisdiction over this continent. He illustrates the dense interlacing of law, ideology, and politics at work in the making of the "New World." Everyone who is interested in Indian Law and the West will have to read this book."   ~Endorsement From Gerald Torres, Bryant Smith Chair, University of Texas Law School:

 

A Critical Analysis:

 

Shawnee legal scholar Robert J. Miller addresses another one of those “complexities” about Thomas Jefferson, the first being his advocacy of freedom while owning human beings—a daunting contradiction whether or not he was sleeping with Sally Hemmings.  Jefferson has no popular reputation as an imperialist, but it was on his watch that the United States reached the Pacific by way of a constitutionally suspect commercial transaction with Napoleon, and the particulars of this transaction reveal more “complexities” about the scrivener of that great anti-imperialist document, the U.S. Declaration of Independence.

 

What is left out of mainstream history books, and what is corrected by Professor Miller in this revisionist look at American expansion, is that the Louisiana Purchase was not in fact a direct real estate purchase.  What the United States acquired and the Lewis and Clark expedition set out to inspect was not a land owned in fee simple but an interest conferred by the European doctrine of “discovery.”  Miller demonstrates with Jefferson’s own words that the third President was well aware of the real nature of the transaction.  “Discovery” meant a right to acquire land from the aboriginal occupants by treaty or by warfare.  Terra nullius, the idea that the Americas were empty and ownerless, was a legal fiction subsumed in the doctrine of discovery and was understood as a legal fiction at the time.

 

What, we might ask with Miller, of that great instrument of self-government, the U.S. Constitution?  It was inevitable that whatever legal doctrines came to govern the relationship between the United States and American Indians would be crafted from whole cloth in the Supreme Court.  This is not in itself a criticism of Chief Justice John Marshall, but a sober recognition that Indians are mentioned only twice in the entire document, in the commerce clause and again to exclude “Indians not taxed” from population counts for the purposes of legislative apportionment (to be distinguished from African-Americans, who were counted as “three-fifths of all other Persons.”).

 

Marshall took up the doctrine of discovery as a governing principle and Marshall’s choice lives to this day in federal Indian law, most famously in the 1955 case of Tee-Hit-Ton Indians v. United States, where the Supreme Court in the mid-twentieth century disregarded the aboriginal title of people who had enjoyed a peaceful subsistence economy on their lands from time immemorial, as the “rights” conferred by “discovery” passed from Russia to the United States.

 

Miller’s use of “manifest destiny” might be criticized as anachronistic.  He recognizes that Jefferson never used the term.  The earliest use of “manifest destiny” in those words was by J. L. O’Sullivan in 1845, in the context of debate over the annexation of Texas.  However, Jefferson was the originator of manifest destiny as American policy in all but name.  The same can be said, to this writer’s surprise, of “removal,” the policy of uprooting Indian tribes from more densely settled land to “new” lands west of the Mississippi (90-91).

 

Manifest destiny came to be understood as having three major themes (120):

            1.  The special virtues of the American people and their institutions;

            2.  America’s mission to redeem and remake the world in the image of America; and,

3.  A divine destiny under God’s direction to accomplish this wonderful task.

 

Some of us living today are descendents of people who came to see the manifest destiny task as less than “wonderful.”  My own people lost at least a fourth of our population to removal.  To this day, many Cherokees are Republicans because the person we have always blamed for removal, Andrew Jackson, was a Democrat.  Miller’s revelation, of course, does not get the Democratic Party off the hook; he just pushes the idea back to the intellectual father of the Party.  I would ask those who find this an unreasonable grudge to hold how many generations you would expect to remember if one out of four people around you died for no good reason?

 

In Miller’s penultimate chapter, he traces the sordid history of the discovery doctrine in federal Indian law from 1774 to 2005.  This is of course the reason for the book, to demonstrate to the scions of colonial America that “the United States and its citizens must face squarely the fact that many of the principles of federal Indian law and the modern-day treatment of Indian Nations and Indians are based on the Doctrine of Discovery and on religious, racial, cultural, and ethnocentric prejudices that are many centuries old.  These lamentable relics of our past should not and cannot continue to be perpetuated and tolerated in modern-day America.”  (178).

           

Hope for change is the reason for the book and fear of change---the other side of the coin---will be the reason for some criticism of the book.  That is, Miller will be called a suspect revisionist because of his Shawnee citizenship just as I, in recommending the book, am suspect because of my Cherokee citizenship.  In response, I can only invite attention to Miller’s documentation.  He is not citing Indian sources but rather the words of the people in charge of U.S. public policy written by them at the time.  It is understatement to point out that a lot of land changed from Indian to colonial hands as a result of these policies.  Therefore, it seems to us on the losing end of those transactions that, while our biases are plain, the biases of those who created the dominant and conventional narrative should also be plain.  Miller’s marshalling of the evidence is formidable, and his analysis deserves consideration on that basis.

 

~Steve Russell is a citizen of the Cherokee Nation and an Associate Professor of Criminal Justice at Indiana University, Bloomington.

 

 

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