http://www.missoulian.com/articles/2007/04/10/jodirave/rave06.txt

Lost history
Posted on April 10

By JODI RAVE of the Missoulian

The Louisiana Purchase of 1803 was not the $15 million land deal of the
century, despite “99 percent” of teachers and historians saying and writing
so, law professor Robert Miller said Monday during a University of Montana
lecture.

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.

Miller, author of “Native America, Discovered and Conquered: Thomas
Jefferson, Lewis & Clark, and Manifest Destiny,” spoke to an audience at
the University of Montana Law School, which with the UM Native American Law
Students Association is hosting Indian Law Week.

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.”