The Doctrine of Discovery in American Indian Law

96 Pages Posted: 17 May 2005  

Robert J. Miller

Arizona State University (ASU) - Sandra Day O'Connor College of Law

Abstract

The Article analyzes the international law principle the Doctrine of Discovery and how it came to be applied to American Indian tribes and incorporated into American colonial, state, and federal law to diminish tribal sovereign and real property rights. The Doctrine was primarily developed in the fifteenth and early sixteenth centuries to maximize European exploration and colonization in the New World. The Doctrine had its genesis in medieval, ethnocentric, religious, and even racial theories. Amazingly, the Doctrine is still an active part of American law today and legally infringes the real property, sovereign, and self-determination rights of American Indian tribes and their people.

Additionally, the Article shines new light on the role the Doctrine played in President Thomas Jefferson's dispatch of the Lewis and Clark Expedition in 1803, and on the actual conduct of Lewis and Clark. The research shows conclusively that Jefferson understood the Doctrine and utilized Discovery principles against the native people and tribal nations in the Louisiana and Pacific Northwest Territories through the Lewis and Clark Expedition. In fact, the expedition was cited by the United States for more than three decades in political negotiations as justification for its Discovery claim to the Pacific Northwest. Jefferson intended that result.

Suggested Citation

Miller, Robert J., The Doctrine of Discovery in American Indian Law. Idaho Law Review, Vol. 42, 2005. Available at SSRN: https://ssrn.com/abstract=721631

Robert J. Miller (Contact Author)

Arizona State University (ASU) - Sandra Day O'Connor College of Law ( email )

Box 877906
Tempe, AZ 85287-7906
United States
4809654085 (Phone)

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