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

Richard J Miller, Lewis & Clark Law School Professor, citizen of the Eastern Shawnee Tribe of Oklahoma, and chief justice of the Confederated Tribes of the Grand Ronde in Oregon, has written a consummate book. Native America, Discovered and Conquered: Thomas Jefferson, Lewis and Clark, and Manifest Destiny, deserves to be read by every student, and by every citizen, given its extraordinary illumination of 500 years of "international law" that justified conquering non-European, non-white, non-Christian human societies worldwide.Miller's book details the 10 elements comprising Discovery:1. First discovery. The first European country to “discover” new lands unknown to other Europeans gained property and sovereign rights over the lands....2. Actual occupancy and current possession. To fully establish a “first discovery” claim and turn it into a complete title, a European country had to actually occupy and possess newly found lands....3. Preemption/European title. The discovering European country gained the power of preemption, the sole right to buy the land from the native people....4. Indian title. After first discovery, Indian Nations and the indigenous peoples were considered by European and American legal systems to have lost the full property rights and ownership of their lands. They only retained rights to occupy and use their land....5. Tribal limited sovereign and commercial rights. After first discovery, Indian Nations and native peoples were also considered to have lost some of their inherent sovereign powers....6. Contiguity. This element provided that Europeans had a Discovery claim to a reasonable and significant amount of land contiguous to and surrounding their settlements and the lands that they actually possessed in the New World….7. Terra nullius. ...Euro-Americans often considered lands that were actually owned, occupied, and being actively utilized by indigenous people to be “vacant” and available for Discovery claims if they were not being “properly used” according to European and American law and culture.8. Christianity. ...Under Discovery, non-Christian people were not deemed to have the same rights to land, sovereignty, and self-determination as Christians….9. Civilization. ...Euro-Americans thought that God had directed them to bring civilized ways and education and religion to indigenous peoples and often to exercise paternalism and guardianship powers over them.10. Conquest. ...It can mean a military victory. “Conquest” was also used as a “term of art,” a word with a special meaning, when it was used as an element of Discovery.What an extraordinary book!

I wish I could recommend this book, because the author clearly invested a great deal of careful research into this. Unfortunately, the author's interpretations at the beginning of the book make me question the validity as a whole.I am not very familiar with late 18th and early 19th century US, so I cannot comment on the heart of the book. However, I am more familiar with medieval-through-1600 ideologies of empire, so I will comment on the Introduction and Chapter 1 .Miller traces the history of the Doctrine of Discovery, and to his credit on pages 3-5 he clearly defines 10 components of the Doctrine:1. Discovery2. Possession3. Preemption4. Loss of Indian title5. Limited sovereignty and commercial rights6. Contiguity7. Terra nullius8. Christianity9. Civilization10. ConquestThe issue is that the author frequently presents evidence that does not actually support his thesis regarding the Doctrine of Discovery.For example, "the Doctrine has been traced as far back as medieval times and the Crusades to recover the Holy Lands in 1096 -1271" (p. 12). Obviously, this is categorically NOT the doctrine of discovery since nobody was discovering the Holy Land, so I am not sure how this is particularly not sure how this is representative of Discovery.The author continues that "the European and Church development of the ideas behind Discovery continued most significantly in the early 1400s in a controversy between Poland and the Teutonic Knights to control non-Christian Lithuania" (p. 12). Once again, this is categorically NOT the doctrine of discovery because there is no discovery of the Baltics. I was originally willing to excuse this because the author described the broader "ideas behind Discovery", but then the author continues."The Council of Constance in 1414 had now placed a formal definition on the Christian Doctrine of Discovery,"(p. 13). I notice the author provides no citation, because none exists; the Council in fact provided no resolution to the Polish-Teutonic-Lithuanian issue. I haven't the slightest idea where the author is finding a "formal definition" of Discovery in the Council of Constance, which specifically avoided providing a definitive ruling on the issue and focused more on Jan Huss.The author moves forward to Iberia, writing that the Doctrine of Discovery had solidified by 1493 (p. 13). My complaint, once again, is that the late 15th-century agreements between Spain, Portugal, and the Pope are categorically NOT the Doctrine of Discovery. Based on the author's own definition, Discovery states that "the first European country to "discover" new lands unknown to other Europeans gained property and sovereign rights over the lands," (p. 3). Documents like Inter Caetera, Tordesillas, etc. reserved the lands to Spain and Portugal, respectively, regardless of which Europeans actually stumbled upon it first. Other elements - such as terra nullius and loss of Indian title - were also not part of the early modern Iberian ideology.The author notes that a debate ensued, and introduces us to de Victoria: "Into this dispute stepped the priest Franciscus de Victoria. Victoria was the King's lead advisor . . . " (p. 16). The remaining section about Spain and Portugal focuses on de Victoria. To be charitable, I could describe this as misleading. The author completely neglects other Iberian jurists such as Bartolomé de las Casas, Domingo de Soto, Serafim de Freita, Diego Covarrubias y Leyva, or Fernando Vázquez de Menchaca.The author then engages in an analysis of De Victoria's writings, without actually quoting them in the text. I am not sure on what basis the author writes that "the legal regime envisioned by de Victoria was just as destructive to native sovereignty and property interests . . .[as] the earlier definition of Spain's authority . . . ", nor why the author fails to mention the practical effects of the Salamancan School as a whole - abolition of Indian slavery, the papal bull Sublimus Deus in 1537 effectively revoking Inter Caetera, the 1542 Nuevas Leyes, or even the abolition of the Requirimiento.On that note, the author concludes the Iberian section with "an interesting examle of Spanish natural law rights at work in the New World was demonstrated by the . . . . Requirimiento," (p. 17). The author is factually wrong here. The Requirimiento was created in 1513 before the development of the Salamancan natural law system, and was abolished in the wake of the Salamancan reforms.While I am not as familiar with early US history, even here some evidence is rather spurious. For example, the author argues that the Commerce Clause "unambiguously granted the Doctrine of Discovery powers to Congress," which seems rather questionable. The Commerce Clause itself includes Indian Tribes together with both the States (dependent on the federal government) and also foreign nations (independent of the federal government), so it is not immediately obvious that the Constitution fulfills Miller's definition. In fact, even subsequent court cases are inconsistent.Overall, this book suffers from several issues:1. Lack of historical analysis, and weak evidence.2. Does not adequately engage with primary sources in-text.3. To his credit, the author has outlined clear criteria for the Doctrine; unfortunately, the author then projects the Doctrine onto legal ideologies that do not meet this definition.4. In general, the author collapses history by focusing on singular voices rather than discourse, and by treating Discovery as something that is ultimately a transhistorical, transcultural phenomenon.I commend the author for his work, but I wish this had been co-written with a historian, or perhaps had an editor with a sharper eye.Sources:Christiansen, Eric - "The Northern Crusades."van Deusen, Nancy - "Global Indios: The Indigenous Struggle for Justice in Sixteenth-Century Spain."Fisher, Andrew and O'Hara, A Matthew - "Imperial Subjects: Race and Identity in Colonial Latin America."Pagden, Anthony - "Lords of All the World: Ideologies of Empire in Spain, Britain and France c. 1500 - 1800."

This is difficult, upsetting reading as it recounts history that most Americans of European descent are unaware. It's the history that you weren't taught in school! The Gospel of Conquest is the rationale which enabled European countries to "discover" new lands "terra nulllias" populated by savages (non-Christians) and thus take those lands for themselves. The Discovery doctrine was the legal basis that Europeans and Americans used to lay claim to the land of the indigenous peoples they "discovered." The Doctrine became part of American law, as it still is today. To understand the plight of Native Americans, this is a "must read" book. The author, Robert J. Miller, is a professor at the Lewis and Clark Law School and chief justice of the Confederated Tribes of the Grand Ronde in Oregon and a citizen of the Eastern Shawnee Tribe of Oklahoma.

I hate to admit it, but in fifty-plus years working with tribes and their histories, it had never quite occurred to me that America's Founding Fathers had a legal theory to justify their actions. Miller's clear and persuasive explanation of the Discovery Doctrine and its continuing influence on U.S. policy is fascinating and enlightening. He has a tendency to beat the subject to death (How many times do we have to be told that Jefferson displayed a clear understanding of Discovery?), but that's a minor quibble. The facility with which the nation's leaders deployed an intellectually (never mind morally) vacuous doctrine to legitimize dispossessing the indigenous nations of North America is quite breathtaking, and Miller tells the story well, leaving it to the reader to draw the obvious but seldom-considered conclusions.