Monday, April 16, 2007

How Did the United States Acquire Title to Indian Lands?

Professor Bob Miller, a noted Indian law expert, spoke about his recently published book, Native America, Discovered and Conquered: Thomas Jefferson, Lewis & Clark, and Manifest Destiny at the Western Historic Trails Center in Council Bluffs, Iowa on April 15, 2007. Over 120 people heard his talk, including a group of about twenty 4-H students from the Treynor, Iowa area. He is an entertaining speaker, and managed to make his subject matter interesting and understandable for all age levels. Later, he joined the Mouth of the Platte Chapter of the Lewis and Clark Trail Heritage Foundation for dinner at the Riverside Grille near Harrah’s Casino, and spoke informally with us. Bob is an enrolled member of the Eastern Shawnee Tribe of Oklahoma, and a professor at the Lewis and Clark Law School in Portland, Oregon.

The Doctrine of Discovery He explained to us about how laws relating to Native American tribes originate in the "Doctrine of Discovery." These same legal issues also governed the actions of the Lewis and Clark Corps of Discovery as they crossed the continent. The Doctrine of Discovery began in the 1400’s when Portugual and Spain were both exploring new lands. The Pope issued a papal bull giving them title and sovereignity over lands they "discovered" for the purpose of converting native populations to Christianity and civilization. Other European nations agreed with this principle, and it became international law. The rights of first discovery gave the conquering nations exclusive property, commercial and sovereignty rights.

The Louisiana Purchase and Indian Land Rights What exactly did we buy when we purchased Louisiana for 15 million dollars from the French?  We didn’t pay 3 cents an acre for 800 million acres as is often stated. We paid for the right to buy land and enter into treaties with the Native American populations. France had acquired these rights from Spain, and Spain had acquired them from England. Nobody asked the Indians what they thought of it. 

When Lewis and Clark traveled through the Louisiana Purchase, which was based on  the drainage system of the Mississippi and Missouri Rivers, they were taking lat-long readings at all the river confluences, as the length and extent of these rivers would determine the boundaries of the purchase agreement. They were also informing the tribes they encountered that they had a "new great white father" and that the tribes were to stop doing business with the French, Spanish and English. They gave flags and peace medals, and sent delegations of Indian leaders to Washington to meet with President Jefferson. The United States now had exclusive rights to buy their land, and they could enter into no agreements with others. This legal understanding of the "Doctrine of Discovery" still governs Indian legal rights today. They must make all land sales and leases through the Department of the Interior.

The Corps of Volunteers for Northwestern Discovery The Lewis and Clark expedition was an elite army unit of volunteers. When they crossed the Rocky Mountains they wrote they were leaving the United States. They were on a mission to reinforce the rights of  "first discovery"  to the Pacific Northwest, established by the American ship captain Robert Grey when he found the mouth of the great Columbia River on the Pacific Coast in 1792.  Meriwether Lewis carried a branding iron to make  his mark on trees; the branding iron was found along the Columbia River in the 1890’s and is on display at the Oregon Historical Society.  They also carved their names on rocks, planted flags, and established a winter fort near the mouth of the Columbia.

The Cobell Case: A Multi-Billion Class Action Lawsuit  A class action lawsuit has been brought against the Department of Interior by holders of Individual Indian Money accounts.  Congressional reports and agency accounts have documented that the Department of Interior owes both individuals and tribes many billions of dollars due to mismanagement of these trust funds.  Visit the website www.indiantrust.com to learn more about it.  Professor Miller says that he believes the solution is to allow Indians to sell and lease their own lands without having to go through government agencies, even though this would be legally difficult to establish given the body of precedent.

We all have a lot to learn about the legal relationships of Native American tribes to the national, state and local governments. Bob Miller’s book, Native America, Discovered and Conquered is available through my Amazon affiliate bookstore.  If you enjoy law, I encourage you to get it. It is very readable. I hope that Professor Miller continues to write more books, and I would encourage him to write for the school market. He has something quite worthwhile to contribute.  You may visit his web page at the law school to learn more.

Posted by Kira Gale on 04/16/2007 at 01:22 PM

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