Review of the Book:
Native America, Discovered and Conquered:
Thomas Jefferson, Lewis & Clark, and Manifest Destiny

by Robert J. Miller

H. William Batt

[This book is published by Praeger Press, 2006. This review
is reprinted from GroundSwell, July-August 2007]

When I was first introduced to the Georgist philosophy, Professor Steve Cord pointed out to me that all titles to real property are based on either force or fraud, and that the credibility of our conventional grounding of ownership is in every instance problematic. A newly published work by law professor Robert Miller makes clear that elaborate legal constructs were devised to overcome this concern by the earliest explorers and settlers coming from Europe. This logic continues to buttress our system of real estate titles today through what is called the “Doctrine of Discovery.” Spanish, French, British, Dutch, and all the other colonial powers relied on it to claim land titles and to dispossess native peoples especially but not only in North America. This doctrine is relied upon in justifying real property titles worldwide, as western notions of law take root elsewhere.

Robert J. Miller has written an important book. He himself is 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 Grand Ronde Community of Oregon. As a citizen of the Eastern Shawnee tribe of Oklahoma, he has the ability to step outside the Eurocentric paradigm of legal reasoning on which so much of our notions of real property rest. And he has produced a very well-organized, tightly written book that should serve well to challenge this half-millennium of tradition. In his conclusion, he states that, “the goal of this book is to increase public knowledge of the Doctrine of Discovery and how American history and law can take on a richer meaning and understanding when one sees the legal background and justifications for various historical, law-related, and political principles.” (p.175) He succeeds admirably.

For all the failings of its assumptions, the Doctrine of Discovery is a very elaborate and well-thought-out set of arguments. It is traceable to the official pronouncements of popes in the 11th century, and was widely understood by the time North America was being settled. Using logic that cemented England’s sovereign possession of most of the continent, any titles then granted came about directly from the King’s grace. No less notable a person than Ben Franklin made the observation at the Albany Congress in 1754 that “his Majesty’s title [in] America appears founded on the discovery thereof first made, and the possession thereof first taken, in 1497.” (p.26) To John Locke it was clear that the Indians should “be destroyed as a Lyon or a Tyger, one of those wild Savage Beasts, with whom Men can have no Society or Security.” (p.28) Regardless of the occasional protests by some of the tribes, perhaps more often bewilderment and resignation, European law prevailed inexorably. It was applied by England prior to independence, and by each of the states and ultimately by the national government afterwards. The Doctrine of Discovery was usually explicit -- finders, keepers!

This legal foundation was finally ratified most fully by the US Supreme Court in the 1823 case of Johnson v. M’Intosh. Chief Justice John Marshall wrote that “the original fundamental principle” governing American land titles and transfers of title was “that discovery gave exclusive title to those who made it.” (p.52) Miller, quoting this passage, puts “exclusive title” in italics for emphasis. The irony of this decision is that, although “absolute title” was given to sovereign government, the Indians were often given “the right of occupancy.” The logic of Johnson has been followed to this day, although in due course, other cases have since accepted the idea that Indian titles to land are “as sacred as the fee of the whites.”

It was mainly with Jefferson that the Doctrine of Discovery came to be spread, and Professor Miller builds a good part of his book around his writing and those policies. Not only was Jefferson the “architect” of the Indian removal policy to lands west of the Mississippi, he of course was responsible also for the Louisiana Purchase. He also applied the Doctrine of Discovery to Indian policies in the Northwest Ordinance of 1787, and launched the Lewis and Clark expedition as a means of laying firm and secure claim to the lands reaching the Pacific Ocean. His language makes very clear that he envisioned a trans-continental nation well before many of his compatriots, and many of his policies anticipated the Johnson decision decades later. Jefferson’s understanding of land law was keen, as his law practice from 1767 to 1774 was nearly half involving matters about Virginia land titles. Furthermore, he kept very detailed and accurate records of his practice that are now available to researchers like Miller. Later, he handled even more land disputes as a member of the Virginia House of Burgesses and then Governor. This makes him not only an obvious subject of analysis but a pivotal figure in what was at that time one of the most important matters that government faced. He was, finally, the greatest apologist of the time for what came to be called “Manifest Destiny.” The book focuses largely on those aspects of Jefferson’s thoughts on land as they pertain to Indian policies, westward expansion, and sales, and Professor 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, Jefferson, as a product of his time, stands to be understood in a revisionary light.

Professor Miller recognizes that the legacy of treaties as well as statutory and case law have locked all parties into a cul-de-sac, where little flexibility now exists to rectify past injustices. He begins the book with the proposal 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.6) and ends by proposing that laws could (and should?) be devised “to reduce the Discovery burden on Indians and their governments” and that “the ‘heavy hand’ of the all-powerful ‘Discovering’ nation and federal paternalism” needs to be reduced. (p.177) Few people would argue with him so far as this goes. But his solution is a very weak ending to a powerful analysis.

This is where his endorsement of more interdisciplinary research (p. 8) is most apt. No doubt he understands very well the heuristic concept “bundle of rights” as it is applied to real property titles. Yet it appears nowhere in the book (although he does on occasion use or quote terms of art like fee, fee-simple, seisin, and usufruct). And there is no indication that he appreciates the economic law of rent that was employed by the classical economists or by Henry George. The separation of “right of use” from “right to economic rent” offers a very simple and easily understandable solution to many cases where land rights are in contention; Professor Fred Foldvary has written extensively on this. Provision for one party of title to receive the rent from another party for use could settle many disputes worldwide. Moreover, it could settle historical claims and differences as well as current disparities of wealth and injustice.

The Georgist movement suffers for not having a community of lawyers actively pursuing instances of Indian land disputes, ethnic conflicts between various tribes and peoples, and the various dimensions of land rights illustrated in the proverbial “bundle.” Research centers and professional literature on law and economics exist, but they fail to include, indeed usually exclude, the Georgist perspective. This book offers an opportunity for discussion among a circle of lawyers and Georgists that could bear ample fruit.

TEN ELEMENTS TO THE "DOCTRINE OF DISCOVERY:” Quoted from Native America, p.6-8.

  1. First discovery. The first European country to “discover” new lands unknown to other Europeans gained property and sovereign rights over the lands. First discovery alone, without a taking of physical possession, was often considered to create a claim of title to the newly found lands, but it was usually considered to be only an incomplete title.
  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. This was usually done by actual physical possession with the building of a fort or settlement, for example, and leaving soldiers or settlers on the land. This physical possession had to be accomplished within a reasonable amount of time after the first discovery to create a complete title to the land in the discovering country.
  3. Preemption/European title. The discovering European country gained the power of preemption, the sole right to buy the land from the native people. This is a valuable property right. The government that held the Discovery power of preemption prevented or preempted any other European or American government or individual from buying land from the discovered people.
  4. Indian title. After first discovery, Indian Nations and the indigenous peoples were considered by the 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. Nevertheless, this right could last forever if the indigenous people never consented to sell their land. But if they ever did choose to sell, they could only sell to the government that held the power of preemption over their lands. Thus, Indian title was a limited ownership right.
  5. Tribal limited sovereign and commercial right. After first discovery, Indian Nations and native peoples were also considered to have lost some of their inherent sovereign powers and the rights to free trade and diplomatic international relations. Thereafter, they could only deal with the Euro-American government that had fist discovered them.
  6. Contiguity. The dictionary definition of this word means the state of being contiguous to, to have proximity to, or to be near to. 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. This element became very important when different European countries had settlements somewhat close together. In that situation, each country held rights over the unoccupied lands between their settlements to a point half way between their actual settlements. More importantly, contiguity held that the discovery of the mouth of a river gave the discovering country a claim over all the lands drained by that river; even if that was thousands of miles of territory.
  7. Terra nullius. This phrase literally means a land or earth that is null or void. The term vacuum domicilium was also sometimes used to describe this element, and this term literally means an empty, vacant, or unoccupied home or domicile. According to this idea, if lands were not possessed or occupied by any person or nation, or were occupied by non-Europeans but not being used in a fashion that European legal systems approved, the lands were considered to be empty and waste and available for Discovery claims. Europeans and Americans were very liberal in applying this definition to the lands of native people. Euro-Americans often considered land 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. Religion was a significant aspect of the Doctrine of Discovery and of Manifest Destiny. Under Discovery, non-Christian people were not deemed to have the same rights to land, sovereignty, and self-determination as Christians because their rights could be trumped upon their discovery by Christians.
  9. Civilization. The European and later American definition of civilization was an important part of Discovery and the idea of Euro-American superiority. 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. [There are] two different definitions for this element. It can mean a military victory. We see this definition reflected in Spanish, English, and American ideas that “just wars” allegedly justified the invasion and conquest of Indian lands in certain circumstances. But that is not the only definition. “Conquest” was also used as a “term of art,” a word with a special meaning, when it was used as an element of Discovery.

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