Review of the Book:
Native America, Discovered and Conquered:
Thomas Jefferson, Lewis & Clark, and Manifest Destiny
by Robert J. Miller
H. William Batt
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
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
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) It
followed then to John Locke that the Indians should "be destroyed
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 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 applied, and Professor Miller builds a good part of his book around
his writing and 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 these Indian policies to 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 while
precedent 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. 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 that
aspect of Jefferson's thoughts on land that pertained to Indian
policies, westward expansion, and land 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.
Nonetheless, Jefferson, as a product of his time, stands to be
understood at least 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 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 for 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 as was employed by the classical economists or by Henry
George. The separation of the right to use from the right to the rent
offers a 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 various dimensions of land
rights such as are illustrated in the proverbial "bundle."
Centers and 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.