season2 · 05 Jul 2023
Our hosts Philip P. Arnold and Sandy Bigtree speak with Robert J. Miller.
We begin this episode with a land acknowledgement. Our hosts Prof. Philip P. Arnold and Sandy Bigtree (Mohawk Nation), begin by introducing our guest Robert J. Miller. He is Professor of Law at the Sandra Day O’Connor College of Law at Arizona State University where is also the Willard H. Pedrick Distinguished Research Scholar and Director, of the Rosette LLP American Indian Economic Development Program. He is an enrolled citizen of the Eastern Shawnee Tribe, the Interim Chief Justice for the Pascua Yaqui Tribe Court of Appeals and sits as a judge for other tribes. He is the author and co-author of numerous books including, A Promise Kept: The Muscogee (Creek) Nation and McGirt v. Oklahoma (University of Oklahoma Press, 2022) (co-author); Creating Private Sector Economies in Native America: Sustainable Development through Entrepreneurship (Cambridge University Press, 2019), Discovering Indigenous Lands: The Doctrine of Discovery in the English Colonies (Oxford University Press 2010), Native America, Discovered and Conquered: Thomas Jefferson, Lewis & Clark, and Manifest Destiny (University of Nebraska Press, 2008).
The episode begins with Miller offering a definition of the Doctrine of Discovery as the foundation of international law and the legal justification “justification for European Americans to acquire legal title and sovereignty and jurisdiction over the Indigenous nations around the entire world.” Using this powerful and brief definition Miller goes on to discuss the Ten Legal Elements of the Doctrine of Discovery based on his careful reading of Johnson v. M’Intosh. As Miller explains how the ten elements function inn international law, Bigtree reminds us that these 10 elements are also connected to a genocidal project of Christianizing the world.
After discussing the Christian civilizational project (element 9), Arnold transitions the conversation to a particular type of law which Thomas Jefferson and other founding fathers practiced, the extinguishment of aboriginal title. Jefferson’s work as a lawyer and a stateman furthered his anti-Indigenous title ambition. Jefferson understood that the primary thing he was purchasing with the Louisiana Purchase was discovery rights and the settler-colonial right to preemption. Miller highlights that Jefferson and Marshall were fourth cousins, and well known politically opposite pugilists. Jefferson frequently pilloried Marshall’s opinions and yet Miller was unable to find anything ever written by Jefferson on the Johnson decision which leads Miller to conclude base on Jefferson’s legacy that he more than likely agreed with the decision.
Miller and Micheline D’Angelis did a detailed study of the Doctrine of Discovery in Brazil and found that many if not all of the 10 legal elements of the Doctrine of Discovery were active in Brazilian law as well. Likewise when Miller examined Spanish and Portuguese law he found all of the elements present as well.
Miller’s most recent book A Promise Kept: The Muscogee (Creek) Nation and McGirt v. Oklahoma co-authored with Robbie Ethridge provides a more contemporary context for understanding the Doctrine of Discovery.
The episode ends with Arnold, Bigtree, and Miller agreeing that collaboration is a vital element of working on the Doctrine of Discovery. Miller talks about how proud he is to publish and work alongside colleagues and students as they work together to research the international dimensions of the Doctrine of Discovery. Arnold and Bigtree agree on the importance of collaboration and discuss their own personal collaboration for decades, and provide the Skä-noñh Great Law of Peace Center Academic Collaborative as another example.
Felix S. Cohen, “Original Indian Title” (1947). Minnesota Law Review. 1296.https://scholarship.law.umn.edu/mlr/1296
Philip P. Arnold and Sandra Bigtree, “S02E02 – The International Dimensions of Johnson v. M’Intosh with Robert J. Miller,” Mapping the Doctrine of Discovery (Podcast), July 5, 2023. https://podcast.doctrineofdiscovery.org/season2/episode-02/.