In reality, the land deal cost the United States another $300 million over the next 15 years because Native Americans retained first rights to the land since they occupied it when the United States allegedly bought it from France.
“The United States signed treaties and fought Indians for the next 15 years,” said Miller, a law professor at Lewis and Clark Law School in Portland, Ore. The treaties forced tribes into land cessions for which they received cash and annuities, and remain legally binding. Natives still own millions of acres of land within the original Louisiana Purchase, an area stretching from the Gulf Coast to the northern Rocky Mountains.
His presentation focused on his book, which breaks new ground about how the Doctrine of Discovery influenced the taking of Native homelands.
The book outlines how the “400-year-old racist, centrist, religious doctrine” worked in its day, and continues to affect tribes today, Miller said. About 55 million acres of Native trust land remains under control of the U.S. Department of Interior, meaning Native landowners can’t sell, develop or lease their land without federal approval.
UM law students invited Miller to open their weeklong event because his book explores the elements behind the Doctrine of Discovery, an international Christian-based law used for claiming land occupied by indigenous people.
Miller explains how the doctrine led to the seminal U.S. Supreme Court decision of Johnson v. McIntosh, typically the first case studied when learning federal Indian law.
“It completely changed the face of sovereignty for Indians,” said Neal Dubois, president of the UM law student organization. “It set the path for Indians to lose millions and millions of acres of land.”
In addition to hosting daily speakers, law students are advocating that federal Indian law questions be added to the Montana state bar examination. States like New Mexico have already made such changes.
“Our theme of ’Indian Legal Education for All’ recognizes not only the addition of Indian law to the bar exam, but the reality that Indian legal issues affect all Montana practitioners, and that ignorance of Indian law in general, and federal Indian law in particular, has done much to frustrate justice and efficiency in our state,” said Nikki Ducheneaux, a third-year law student and one of the student association organizers.
Thomas Jefferson was one of the United States’ biggest promoters of the Doctrine of Discovery, Miller said. “He was a devious and conniving character. He was the originator of the Indian Removal Act. We blame Andrew Jackson.” But it was Jefferson who deemed Indians “the wild beasts of the forests” and proclaimed that “we will drive them to the Rocky Mountains.”
Jefferson applied Doctrine of Discovery principles, which allowed explorers to claim land by simply spotting it or by planting a flag in the ground to stake ownership, even if indigenous people lived on it. The Oregon law professor said he would exercise discovery principles while in Montana.
“I’m coming to your house this afternoon and I’m planting my flag,” he told his law school audience. “You’ll probably call the cops or shoot me.”
How did Natives react when they didn’t agree to sign a land-cession treaty?
“Indians fought,” Miller said.
Jefferson applied doctrine principles in several ways, mostly by acknowledging the right of Indian occupancy, but clearly stating that when Natives decided to give up their land, they could sell only to the United States.
It’s history that most people don’t know about.
“It’s something that anyone teaching history should be incorporating into their discussion,” said Maylinn Smith, director of the Indian Law Clinic on the Missoula campus. “My job would be a lot easier. Then you don’t have all these challenges, like ’Why do Indians get all these special privileges?’ or ’Why do white people have to submit to tribal jurisdiction?’ ”
Said Ducheneaux: “You waste your time educating people about things they should already know.”
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