Review of Robert
J. Miller's Native America,
Discovered and Conquered: Thomas Jefferson, Lewis & Clark, and Manifest
Destiny
Westport, CT: Praeger Press, 2006
In his
review of this book in Ground Swell
(July-August 2007), Dr. William Batt of Albany
NY says:
Author Robert J. Miller, 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 Grande Ronde Community of Oregon,
is a citizen of the Eastern Shawnee Tribe of Oklahoma. In this book, he moves
outside of the Eurocentric paradigm of conventional legal reasoning
characterizing so much of U.S.
and Canadian notions of real property. Miller presents a tightly written challenge
to five hundred years of this tradition. He argues (p.175) that American
history and law can take on a richer meaning and understanding within the
contexts of the legal background and justifications for many historical, law
related and political principles.
This
reviewer argues that the same observations are as true of Canada and other colonial states as they are of
the U.S.A.
In both the U.S.A. and Canada,
the Doctrine of Discovery was explicit—finders, keepers.
Although
Miller’s book is six years old, it carries some messages of current application
for not only the U.S.A., but
also Canada.
Beginning with Popes in the 11th century, the Doctrine of Discovery
was widely understood by the time North America
was being invaded and occupied by Europeans. England initially claimed sovereign
possession of most of the continent, assuring that land titles came directly
from the King’s grace. Batt continues:
Miller outlines ten elements to the Doctrine of
Discovery (pp. 6 – 8):
1. First Discovery;
2. Actual Occupancy and Current
Possession;
3. Preemption/European title;
4. Indian title;
5. Tribal limited sovereign and
commercial right;
6. Contiguity;
7. Terra nullius;
8. Christianity;
9. Civilization;
10. Conquest.”
This
reviewer adds that although, following George III’s
Royal Proclamation of 1763, immigrants in the U.S.A. responded with a
revolution while immigrants in Canada did not, in both cases Europeans and
their descendents claimed property and sovereign right over Indigenous lands.
First discovery was considered to create a claim, even if considered
incomplete, of title. In what was to become in the U.S.A., a revolution was fought
over whether the British Crown or Immigrant Institutions would claim title to
Indigenous lands and resources. In what was to become Canada, immigrants stayed loyal to the Crown and
treaties were negotiated between the Crown, in the right of Canada, and
Indigenous Nations for use of most of Indigenous land and resources.
Thomas
Jefferson, in the U.S.A.,
like Sir John A. MacDonald at a shortly later time in Canada, envisioned a
trans-continental nation well before many of his compatriots did. This makes
them each a pivotal figure in the post-contact history of his nation.
This
reviewer agrees with reviewer Dr. Batt that Robert Miller is too sophisticated
a scholar to use contemporary political beliefs as a basis from which to judge
values and practices two centuries ago. Still we must understand Jefferson and
MacDonald, as products of their time, in revisionary light.
Batt
observes that Miller recognizes that in the U.S.A. the legacy of treaties as
well as statutory and case law leaves parties as seeing themselves locked into
a cul-de-sac, limiting flexibility to rectify past injustices. This reviewer
observes that while much of the same is also true in Canada, the courts up to and
including the Supreme Court of Canada, have occasionally and unpredictably
shown a willingness to rectify past injustices.
As Batt
points out, Miller begins his book by proposing 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). He ends by stating 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. However, Batt sees this solution as a very weak ending to a
powerful analysis.
In Canada, debate
continues over inherent Indigenous sovereignty, the provisions of treaties,
statutory and case law between the Crown and Indigenous peoples and their
impact on Federal, Provincial, Territorial and Indigenous governments.
Indigenous peoples have shown a preference for negotiation over litigation. The
same is less true for Federal and Provincial governments. Indigenous peoples
and governments have led the way through the Courts. Governments, with the
possible exception of Yukon and Northwest Territories
seem to have needed Court decisions before acting to attempt to reduce the
Discovery burden on Indigenous peoples and their governments. The same has been
true in efforts to reduce the ‘heavy hand’ of Federal, Provincial and
Territorial paternalism.
Some
Canadian attempts which allege to be intended to reduce the Discovery burden on
Indigenous peoples and their governments include, but are not necessarily
limited to:
1. The 1975 James Bay and Northern Quebec Agreement;
2. The 1984 Inuvialuit Land
Claim in N.W.T.;
3. 1976 and 1992 Treaty Land
Entitlement Agreements in Sask.;
4. 1993 Sahtu Dene and Metis Land
Claims Agreement in N.W.T. ;
5. Delgamuukw 1998 Supreme Court
Decision recognizing aboriginal title as a “right to the land in itself,”
deriving from First Nations original occupation and possession at the time the
Crown asserted sovereignty. The Court also stated that the Federal and
Provincial governments may infringe upon Aboriginal title under conditions for
justification but that fair compensation would be due at the time of such
infringement.
6. Sechelt First Nation AIP in 1999;
7. Tsawwassen First Nation Treaty in
2007;
8. 2007 Supreme Court Xeni Gwet’in
Supreme Court decision on Aboriginal title;
9. Calder Supreme Court decision,
leading eventually to the 2010 Nisga’a Treaty in B.C.;
10. Supreme Court of Canada finding
that there was a “Duty to Consult” with Indigenous authorities prior to and
during development of traditional Indigenous lands and resources.
This
reviewer finds it interesting that, in the current debate, existing Canadian
models for change that are being ignored by the Canadian Parliament include:
1.
The West Bank First Nation near Kelowna, B.C. – For West Bank First Nation,
the Indian Act has been replaced by the West Bank Self Government Act. <http://laws.justive.gc.ca/eng/acts/W-6.2/>;
2.
Senate Bill S-216 introduced by Senator Gerry
St. Germain and ignored after 2nd reading in 2006. Provisions in the Bill
would make West Bank-like self-governance options available to each First
Nation choosing that methodology. <http://www/parl.gc.ca/Content/SEN/Bills/39/public/S-216/S-217_1/S-216_text-e.htm>;
3.
Yukon Self-Government legislation that has made
West Bank-like governance options available to Yukon First Nations for several
years. <http://laws.justice.gc.ca.eng/acts/Y-2/page-1.html>.
For some reason, governments and media continue to ignore
these options.
About the author:
Dr.
Jerry Hammersmith, freelance writer of fiction and non-fiction, is a retired
international teacher and management
consultant with experience as a small business owner/manager. He has taught in
Canadian and New Zealand Universities and has done community economic development
and strategic planning in Indigenous communities in Canada,
Zimbabwe and New Zealand.
He has served as a provincial cabinet minister and a territorial deputy
minister in Canada.
He is currently on the Aboriginal Leadership and Management faculty at the
Banff Centre and has served as a CESO/SACO Volunteer Associate, serving
Canadian Indigenous and Developing Nations communities. He can be reached at jhammersmith@sasktel.net.
