Save What You Love with Mark Titus

00:00:00:02 - 00:00:23:16
Mark Titus
Welcome to the Save What You Love podcast. I'm your host, Mark Titus. Today we get to sit down and speak with Robert Miller. He's a professor of law at the Sandra Day O'Connor College of Law at Arizona State University. Bob's areas of expertise are federal Indian law, American Indians and international law. American Indian Economic Development, Native American Natural Resource and Civil Procedure.

00:00:23:18 - 00:01:03:02
Mark Titus
He's an enrolled citizen of the Eastern Shawnee Tribe. He's the Willard H Patrick Distinguished Research Scholar at ASU and the faculty director of the Rosette LLP American Indian Economic Development Program at ASU. Bob's also the author of Native America Discovered and Conquered. And here's where it gets really interesting. This conversation is alive and clear and captivating and in it, Bob talks about his book and addresses the international legal principle called The Doctrine of Discovery, and how that legal rule was used in American history and transformed into the American policy of Manifest Destiny.

00:01:03:04 - 00:01:27:13
Mark Titus
Well, it's a big one. It's fascinating, clear and compelling. So this show is produced in partnership with Magic Canoe. If you are interested in getting involved in bio regional storytelling, check them out at magiccanoe.net. And a reminder here that you have until April 30th to join this community and invest in our parent public benefit company.

00:01:27:13 - 00:01:52:06
Mark Titus
Eva's Wild, and assist in the creation of my third film, The Turn. You can invest for as little as $100 and become an actual bona fide partner and investor in Eva's Wild. You can find the link to invest right on the home page of David's Wild, and that's just evaswild.com, and that's spelled save spelled backwards, wild dot com.

00:01:52:08 - 00:02:13:23
Mark Titus
And as always, if you're enjoying the show, check us out on Apple Podcasts. Give us a review. Give us a rating. It really helps get our exposure out into the world and tell your friends and enjoy this show. This is a fantastic conversation and I know it will induce more conversation among you and your friends and family. Take care and I'll see you down the trail.

00:02:14:01 - 00:02:50:07
Music
How do you save what you love?
When the world is burning down?
How do you save what you love?
When pushes come to shove.
How do you say what you love?
When things are upside down.
How do you say what you love?
When times are getting tough.

00:02:50:09 - 00:02:52:06
Mark Titus
Robert
00:02:52:08 - 00:02:53:04
Robert Miller
Thank you.

00:02:53:06 - 00:02:55:08
Mark Titus
Where are you from today?

00:02:55:10 - 00:02:58:04
Robert Miller
I'm in my office in Phenix, Arizona.

00:02:58:06 - 00:03:03:23
Mark Titus
Outstanding. Is it is it presumably warm? It's definitely not up here.

00:03:04:01 - 00:03:08:15
Robert Miller
It'll be about 94 today, which, you know, that's cool for here.

00:03:08:17 - 00:03:26:15
Mark Titus
Right? That's right. Well, we are definitely having a spring in the Pacific Northwest. And it's it doesn't know what it wants to do, but I am so glad you're joining us from the desert and I have so many questions for you. But as we do on this show, I want to start out with a little bit about you.

00:03:26:16 - 00:03:38:15
Mark Titus
And you are why we're here and why we're listening. So could you just tell us tell us your story. How did you come into this work that you do?

00:03:38:17 - 00:04:01:09
Robert Miller
Well, I was in the used car business for many years before I went to college, and then I went to law school. I graduated law school in 1991. I worked clerked for a federal judge. I then practiced law for seven years. While I was teaching as an adjunct. I became a full time professor in Portland, Oregon, from 1999 to 2013, and then I moved down here to Arizona State.

00:04:01:09 - 00:04:08:12
Robert Miller
So I finished my ninth year here teaching at the Sandra Day O'Connor College of Law.

00:04:08:14 - 00:04:32:17
Mark Titus
Amazing. And I think, you know, circuitous routes are oftentimes featured with folks on the show. I'm definitely a product of that. And I love hearing about it. You know, it's intensive work and we're going to dive into a lot of the the meat of it here in a minute. But what keeps you going every day?

00:04:32:19 - 00:04:57:23
Robert Miller
I guess I'm a frustrated historian. I like writing about legal history issues in regards to law. Of course, I've taught federal Indian law classes since 1993. I practiced Indian law working for a law firm that only worked for tribes and litigated and dealt in Indian issues. I am a tribal citizen. I've written a book chapter on my own tribe, a couple of book chapters.

00:04:57:23 - 00:05:21:16
Robert Miller
I've analyzed, my tribe's treaties, etc. And so Indian law is my primary teaching focus. I do teach a first year class or require mandatory first year class called civil procedure, which is the practice of law in federal courts. But other than that Indian law, I'm now finishing my fifth book. I've written dozens of articles on various issues.

00:05:21:18 - 00:05:50:02
Mark Titus
And as we heard in the intro, yeah, it's it's kind of dazzling to keep track of the the work that you've done and continue to do. But for today's show, we're going to we're going to try to focus a little bit. We could go for a long, long time, but we've only got an hour today. Let's start at the top for folks listening who may have heard of it but may not know the depth of its meaning, can you explained what the doctrine of discovery and Manifest Destiny are to us?

00:05:50:04 - 00:06:15:02
Robert Miller
Certainly, this was my first book and I've done a lot of writing on these topics. The doctrine of Discovery is one of the first forms of international law. What is international law? It is the rules that nations develop that govern their conduct vis a vis each other. So the Law of the Sea is one of the earliest forms of international law from the 1500s.

00:06:15:02 - 00:06:52:16
Robert Miller
But it developed at the same time that this doctrine that I've written so much about and that we're talking about today, called today the doctrine of Discovery, just as Europeans decided what legal rights they had to travel the open seas and how close to the shorelines of countries, which is still international law today. So did they also, starting in the 1300s, but specifically in the 1400s with the church and with Spain and Portugal, European countries were trying to determine their legal rights to empire, to colonization in the other parts of the world.

00:06:52:18 - 00:07:25:19
Robert Miller
And that's what the doctrine of discovery is. And it's been given that name really since a United States Supreme Court case in 1823 called Johnson v Macintosh. I teach that case every year. I knew about the doctrine of Discovery. And then during the Lewis and Clark bicentennial in 2003 to 2006, my tribe Tribal Council, appointed me to be involved with the National Lewis and Clark Bicentennial, and I decided to write about the doctrine of discovery at that time.

00:07:26:01 - 00:07:52:07
Robert Miller
What did President Thomas Jefferson know about this international law? It was literally 200 years old. By the time this international law was 200 years old, by the time Jefferson was president. And what maybe did Lewis and Clark themselves know about international law, What kind of claims were was the United States making in what's now the Pacific Northwest, the Oregon country?

00:07:52:09 - 00:08:11:14
Mark Titus
And what is that? How does that frame and inform this concept, this notion of manifest destiny? I think a lot of us think about it when people Europe, Americans were moving from east to west, across the the United States or North America, how does that doctrine of discovery then inform that concept?

00:08:11:16 - 00:08:35:11
Robert Miller
Well, in working on the Lewis and Clark bicentennial for my tribe, I ended up writing my first book that came out in 2006. What's the title? Something Native America discovered in Concord, Thomas Jefferson, Lewis and Clark and Manifest Destiny. So I don't think I'm the first person to have said this, but what we call American Manifest Destiny. We hear about that in grade school and high school.

00:08:35:11 - 00:09:00:19
Robert Miller
What what is it, really? Well, what I say it is in my book is it is the doctrine of discovery. The fact that Euro-American, as you mentioned, it, assumed they were superior. They assumed Christianity and their civilization was superior, and that the other peoples of the world are savages to be civilized and tamed, and their lands and rights to be taken by European markets.

00:09:00:21 - 00:09:32:15
Robert Miller
I think no one can really disagree. I think that American Manifest Destiny was this same wave of American expansion across the United States. And so, Mark, for you and your audience, it's not only the United States that had this idea of destiny for the European colonial powers in South America. The same words were used in Brazil, in Chile, the same thinking of the Spanish throughout Asia, etc., and the Pacific Islands.

00:09:32:19 - 00:09:41:13
Robert Miller
This idea that God somehow mandated the European Christian countries to take over and own everything.

00:09:41:15 - 00:09:56:01
Mark Titus
So it's a it's essentially the source point. It's a monotheistic decree that allows the bearer in this case are the people that adopt this mentality dominion over whatever they see. Is that essentially.

00:09:56:03 - 00:10:15:10
Robert Miller
In one set? I mean, what is law? It's the rules that govern, you and I in everyday life here in the United States, we deem to cede some of our power to the federal government because it's supposed to protect us. We wrote a constitution that gave it limited power. So we we the people, consent to that sort of thing.

00:10:15:15 - 00:10:40:11
Robert Miller
What did European-Americans do with the doctrine of Discovery? I didn't quite finish this mark. So but part of international law was Europeans were deciding how to divide up the rest of the world. They wanted to do it as cheaply and easily as possible without warfare between Europeans. Of course, there was plenty of warfare, but there was a lot of looking at each other and nodding and saying, Here you take Brazil, what's now Brazil.

00:10:40:14 - 00:10:54:02
Robert Miller
We'll take the rest of Central America and South America. So it was a cheap way for European countries to acquire riches and empires around the world. But an agreement among those countries.

00:10:54:07 - 00:10:54:12
Mark Titus
Now.

00:10:54:14 - 00:11:13:22
Robert Miller
How they would act vis a vis each other. So that's again why it's called international law. It was how European countries and later the United States, Australia, New Zealand, Canada, how we agreed to interact with each other and divide up the spoils of indigenous peoples and indigenous nations.

00:11:14:00 - 00:11:29:09
Mark Titus
Well, of course, by definition there's a the the voice left from the table. Away from the table are the indigenous peoples, of course. And we're going to we're going to get even more specific here with Alaska soon.

00:11:29:11 - 00:11:50:13
Robert Miller
And the old Irani joke, Mark, is if you're not at the table, you're on the menu. So indigenous people's rights, as you say, were being divided. And let me tell you, I just wrote an article that just finally came out in print about the doctrine of discovery in East Africa and how England and Germany in particular, divided up what's now Kenya, Uganda and Tanzania.

00:11:50:15 - 00:12:22:04
Robert Miller
So this lead, this law is the law across the whole world. And let me say one other thing, Mark, for you and the audience. Russia planted its flag on the bottom of the Arctic Ocean in August of 2007. China, as you maybe know, is disputing with Japan and the Philippines and Vietnam. Who owns the South China Sea? China planted its flag at the bottom of the South China Sea in 2010, and China is building artificial islands in the South China Sea.

00:12:22:06 - 00:12:48:07
Robert Miller
So this symbolism of first discovery and claiming lands that Spanish explorers and English explorers and French were doing in the 1600s, the 1700s is not completely gone from our memory. And why did the United States put the flag on the moon? Ah, what does that mean, anyway? This idea, this sort of international law is not gone.

00:12:48:08 - 00:13:14:02
Mark Titus
This idea also of ownership. I'm saying in air quotes of land, you know, here in this part of the world, whether it was actually spoken by Chief Self Chief Seattle, from whom our cities named after or not, there's some dispute about that. But certainly a lot of folks have heard of Chief Seattle speech, his final speech, and he references that we don't own the land.

00:13:14:02 - 00:13:37:13
Mark Titus
We are part of the land. This was anathema to the indigenous people that have been here for millennia. Can we just pause on that for a second and just just kind of dissect this idea about ownership of land writ large versus participation as stewards for a short time on this planet in the place that we call home?

00:13:37:15 - 00:14:05:14
Robert Miller
Sure. I mean, I might have a little take on this than what it sounds like you're thinking from your question. Native peoples, of course, have a different spiritual view of both animals and land and assets and the creator or grandfather or whatever various indigenous peoples, what their creation stories are and what their belief system is. But the point I'm going to make that might be a little different than at least what your question sounded like.

00:14:05:14 - 00:14:31:10
Robert Miller
Native peoples and tribal nations did understand boundaries. They claimed boundaries. They knew their hunting territories. They sometimes fought to expand. Obviously, there were fights between indigenous groups here in North America and around the world, and my tribe, my tribal peoples. We knew where our towns were. We owned our own private assets. We protected our hunting grounds from other people.

00:14:31:12 - 00:15:00:05
Robert Miller
So a different view maybe of from the Anglo American Christian type view. That man dominates the environment and dominates the earth. Yes, Native peoples had a different view even as they were killing and taking animals. They they recognized the animal spirit. They maybe had ceremony. They thanked the animal for giving themselves up to sustain the human being. But we understood the value of land, its uses, its assets and that we needed to live there.

00:15:00:07 - 00:15:27:20
Robert Miller
So I write about economic development. It's not unusual for indigenous peoples to use their lands to know how to use their lands and to yes to protect them. But as you hinted in, what Chief Seattle's point, they a lot of native cultures view land in a different we're going to be here for a thousand years. We got to protect this place for a thousand years, not just you know, strip mine it or log all the logs and then move on to the next forest.

00:15:27:22 - 00:15:59:09
Mark Titus
Great, great segway. I wanted to just bring up this this notion that Manifest Destiny empowers extirpation of species. And this I think a lot of folks, you know, and myself included, up to a certain point in my life until really digging into this thought, man, what a tragedy that the buffalo were lost. That's that that's a bummer. That's really awful that people were, you know, hunting too many and they just went away.

00:15:59:11 - 00:16:26:19
Mark Titus
We now know that that that's that's not how it happened. That was a deliberate act. And I'm going to tie this back to Salmon and Alaska here later on. But can you speak to that deliberate act of running roughshod over the land and especially the extirpation of of animals that were food sources for indigenous folks here during this the course of the expansion of this Manifest destiny?

00:16:26:21 - 00:16:49:00
Robert Miller
I agree with your comment and the premise of your question, out of fairness, is a law professor. I will just let you know there are a couple people that have written a couple articles that try to blame the near-extinction of the bison on indigenous peoples. I reject that completely. Indigenous peoples lived with the bison for 15,000 years or much longer.

00:16:49:02 - 00:17:16:11
Robert Miller
But you are exactly right that when you're attacking a civilian population and we all talk about, when did that start in war? Well, there's no question that George Washington and Americans and Europeans practiced civil civilian war on indigenous peoples. Do you know what George Washington's name was by the Iroquois and peoples of upstate New York? His name was the town destroyer.

00:17:16:13 - 00:17:52:03
Robert Miller
George Washington's men destroyed the crops, burned the homes and houses of indigenous people in Indian peoples. That's war on civilian populations, face it. So there's been a war of extermination, extirpation, as you say. And attacking somebody's food source is one of the classic ways of absolutely destroying their lives. I mean, what I what's going on in Ukraine now looks like a lot of bombing of nonmilitary targets for terror, for to cause epidemic to cause starvation, to cause disaster.

00:17:52:05 - 00:18:09:12
Robert Miller
This has happened in North America. And yes, there was a targeting of Buffalo killing them just for their hide or their tongue and leaving carcasses to rot. They knew what they were doing and trying to change the lifestyle of the Lakota Plains peoples.

00:18:09:14 - 00:18:38:02
Mark Titus
So this this happened, of course, intentionally and unintentionally at times as folks Euro-American folks moved west. We have a different view of things now about how the land and the water and the animals and the people that surrounded were dealt with and need to be dealt with in in order to move forward to have these things in the future.

00:18:38:04 - 00:19:08:03
Mark Titus
But I'm going to start drilling our focus down here now for today into Alaska. So I'd love to ask you how these notions of doctrine of discovery, manifest destiny, factor into the sale of Alaska from the Russians to the United States in 1869 and then the subsequent movement forward as as an American state from that point, from obviously in 1959 on.

00:19:08:05 - 00:19:39:04
Robert Miller
Absolutely. Let me just say a few words about Johnson. The Macintosh itself saw our most famous chief justice, John Marshall, writes, Three famous Indian law cases. I teach them every year. Everyone that teaches federal Indian law starts with Johnson v Macintosh, which is this case from 1823, where the United States Supreme Court analyzed European law, analyzed European colonization, and said, yes, this is the law in the United in what's now the United States.

00:19:39:06 - 00:20:08:14
Robert Miller
This case, Johnson V Macintosh, is exceedingly important in international law. It's been cited by Canadian courts, probably 70 times, Australian courts, probably 50 times, New Zealand courts, 40 times. It's even been cited by the British per the Privy Council about cases in Canada and Africa. So what what Chief Justice John Marshall wrote in 1823 is a perfect encapsulation of what the doctrine is.

00:20:08:16 - 00:20:41:05
Robert Miller
In my 26 book, I break this doctrine into ten elements. We don't have time to go into that today, but the first two elements are very crucial to Alaska. What's now Alaska and what Europeans did up there. So Johnson v Macintosh and European countries said that the first European country that showed up in a new area where there were no Christians, they would plant their flag, they would plant the cross in the soil and they would claim this is ours.

00:20:41:07 - 00:21:07:22
Robert Miller
So this is what I call the first element of the doctrine of discovery, its first discovery which European Christian country made the first discovery. And I'm putting air quotes around that because most of the time there were human beings living there with sophisticated laws, sophisticated legal systems and sophisticated economies and cultures. And the Europeans ignored them like they weren't even there because they weren't Christians and they weren't Europeans.

00:21:08:00 - 00:21:37:01
Robert Miller
The second element of the doctrine of discovery is that once a European country had found a new area, stuck their flag and cross in it or branded it, drew created wooden crosses, held religious ceremonies. A European country had to get back to that same location within a reasonable length of time and actually occupy that location. So they had to build a fort or a trading post or a little town.

00:21:37:03 - 00:22:08:11
Robert Miller
This went on in Alaska without any question. Pursuant to international law in 1741. I mean, everyone in Alaska knows the Bering Strait well. Czar Peter the Great sent Vitus Bering in 1741 to explore the the Strait, the Bering Strait, and try to find North America and to claim islands and lands This exactly what he did and to name various geographical features.

00:22:08:12 - 00:22:32:10
Robert Miller
This is something Europeans always do. The Lewis and Clark expedition did this all the way across the continent. They named rivers and mountains and peaks, etc. And the British did the same thing in Portland, Oregon. You know, Mt. Hood is named for a British admiral, was named in 1792 by Lieutenant William Bratton of the British Navy. So this is exactly what Russia was doing.

00:22:32:10 - 00:22:58:01
Robert Miller
They understood this international law and this was 80 years before Johnson v Macintosh was written, but it was the international law that had developed since the 14th hundreds by the church and primarily by Spain and Portugal when they were world powers. So in 1764, Catherine, the second ordered another expedition to what's now Alaska. And I have a quote here.

00:22:58:01 - 00:23:50:07
Robert Miller
The reason it was a secret expedition, quote, to confirm the discoveries already made comma, to make further discoveries and exploit explorations, comma, to subjugate the inhabitants of newly discovered lands to Russia, close quote. That was her official direction. Go forth, carry out the doctrine of discovery, argue by these areas, and yes, make new discoveries. Now, many in your audience will probably be stunned to find out that Captain James Cook, the famous British explorer who made three explorations around the world in 1768, he was sent to the northern reaches of the west coast of North America to make discoveries to try to find this famous Northwest Passage.

00:23:50:09 - 00:24:12:01
Robert Miller
And he was also ordered by the British Admiralty to do the identical thing that Catherine, the second, ordered her explorers in 1764. So I don't know if you want to jump in and ask me something in a moment, but the the the instructions that Captain James Cook were given, I don't know. I don't want to read them to you.

00:24:12:01 - 00:24:45:14
Robert Miller
But here's just a very short snippet. Captain James Cook was directed with the consent of the natives to take possession in such countries, as you may discover that have not already been discovered and discovered or visited by any other European power. Absolute Lee James Cook was ordered by the British Admiralty to engage in First discovery. This first element of the doctrine of discovery go where no European power has yet been and claim it.

00:24:45:16 - 00:25:08:07
Robert Miller
The Admiralty then said If there are inhabitants there, leave things that prove you've been there. Remember, in those days they didn't have GPS. They couldn't put a little ping on the Amazon or something. So James Cook took things with him to give Native peoples and to prove where he had been. And let me tell you what he did in Alaska.

00:25:08:07 - 00:25:33:03
Robert Miller
Mark In what's now modern day Alaska? James Cook Well, I got ahead of myself because the Russians did the same things. They planted bronze plates that were numbered only one of those has been found today in the 1930s at Sitka, they found plate number 12, I believe it is. And you can see that plate in the museum in Sitka, Alaska.

00:25:33:04 - 00:26:06:00
Robert Miller
It says this land belongs to Russia. Wow. The Russians also erected their double headed crests, their royal crests, wherever they went. There are traitors and they're official explorers. We're supposed to bury these metal plates and to erect these crests. Apparently, they came as far south as San Francisco. Again, I don't know if your audience is aware that the Russians were a apparently along the West Coast and apparently as far south as San Fran, the Bay Area.

00:26:06:02 - 00:26:26:22
Robert Miller
And they were making legal claims under the doctrine of discovery. But anyway, now back to James Cook. Well, he did the same thing and three times he did this in what, modern day Alaska. And I want to get the names right because people will know these places. Now I'm having a little trouble.

00:26:27:00 - 00:27:09:00
Mark Titus
Well, while you're digging that up, this is fascinating. I did know that the Russians were as far south as here is Washington and Astoria. I didn't know as far south as San Francisco. That's incredible. That first observation. Second is yet again, you know, this this kind of I guess it's a historical mythology. If there's such a thing of, you know, trading with the Indians, as they were called, you know, as Cook and others came across them, certainly was not out of the kindness of their heart to, you know, gift them with these Bibles and these things that I didn't know.

00:27:09:00 - 00:27:20:00
Mark Titus
Like that was actually a strategic means of assuring their presence to these new, quote, discovered lands, that that is a novel concept to me.

00:27:20:06 - 00:27:50:04
Robert Miller
Absolutely. In these times I made the joke. There was no way to press on your jeeps where you'd been, but sticking your flag and crossing the soil last for about 2 seconds until the next wave wipes out, you know, the mark. So a lot of Europeans branded rocks, branded trees. I'll bet you none of your audience knows that Lewis and Clark carried a branding iron with them across the United States once they crossed the Rocky Mountains, Mark into what's now what was then called the Oregon Country.

00:27:50:06 - 00:28:16:16
Robert Miller
Today, we would call the Pacific Northwest. The branding iron is mentioned in the Lewis and Clark journals about ten or 12 times as they brand Meriwether Lewis his name, and that he's a captain of the U.S. Army on various rocks and trees, wins. Alexander Mackenzie crossed Canada in 1796, I believe it is. He made it. You know, the Mackenzie River is named after him in Canada.

00:28:16:18 - 00:28:36:15
Robert Miller
He made it to the Pacific Ocean. He branded a rock that I guess is still visible there today. There's a photo of it I've seen in a book. I don't know if you can still see the rock today, but they were trying to prove where they had been. Now I've caught up with what I want to say about Cook, so let me tell you how brilliant he was.

00:28:36:17 - 00:29:07:17
Robert Miller
James Cook came across the Pacific. He landed on several islands. He built rock, Cairns, CAIR in as a monument of rocks. They left signs, but when he landed three times on what's modern day Alaska, he landed at Keys Island, which I believe is called Kayak Island. Today. He, of course, went into Cook's Inlet, clear up to what's modern day Anchorage, and he stopped at what's called Point possession.

00:29:07:19 - 00:29:41:03
Robert Miller
Now, Mark, I want you and all your audience to understand why he called it that. It's my first and second element of Johnson V Macintosh, my first and second element of this international law doctrine of discovery. When Europeans raised their flags, planted the cross they and engaged in the ceremony, many of the priests doing the saying, the mass, etc. They were engaged in what they thought was a legal ceremony, a formal possession, taking of possession.

00:29:41:05 - 00:30:05:05
Robert Miller
Do you know what that spot is still called today? A cross from Anchorage. It's called Point Possession. And that's what James Cook himself called it. Cook also land at Cape Newnham, which is in modern day Alaska somewhere. But what Cook did? I said he was brilliant. He didn't just raise the British flag and these guys all drank. It's a good English porter.

00:30:05:10 - 00:30:32:07
Robert Miller
They raised a glass of beer to the king and they claimed all the lands for England. But all three times they went a short these three places. Mark They put English coins, money in a glass jar and buried them. Member What I said the Russians were doing burying those bought bronze plates, about 30 of them. We've only ever found one at Sitka at the museum.

00:30:32:11 - 00:31:00:13
Robert Miller
But Cook was proving that an Englishman had been there by leaving English coins. Metal coins in a glass jar. And it's funny, he sent Lieutenant William King ashore in seven mail in 1778. Wait, That's when he landed at Kayak Island, Keys Island. But on June the first, 1778, James Cook sent one of his lieutenants ashore at what's called point possession.

00:31:00:15 - 00:31:24:20
Robert Miller
I've literally been there. I was across the Cook Inlet from it, but I was able to see where point possession is and ten or 12 natives were watching them while they raised the British flag. This is what Lieutenant William Kane wrote in the ship's log. Ten or 12 natives watch them while they raised the flag, while they hoisted a good British porter drank to the King's health and claimed it all.

00:31:24:22 - 00:31:51:12
Robert Miller
But they waited until the natives left so they wouldn't see where they buried these coins. So I don't know if anyone's ever found these glass jars or these coins. Maybe it's worth it to go to Kayak Island or Cape Newnham and see if you could find that or find just some of those Russian bronze plates. But they were doing the best they could mark to prove where they had been and where they were making these legal claims.

00:31:51:14 - 00:32:16:02
Mark Titus
I think we just launched an inadvertently a new reality show that did not know any of that. Down here in Washington State. There's a place I grew up fishing for salmon with my dad called Possession Bar. I will bet anything. That is exactly what that whole thing's about in because clearly Vancouver came into that.

00:32:16:02 - 00:32:40:16
Robert Miller
George Vancouver was a midshipman on James Cook's 1778 voyage to Alaska. Later, of course, he becomes a captain. He engages in his own round the world trips. And yes, I believe in 1792, he came into Puget Sound and I don't think I have it right in front of me. Mark, but he absolutely named this location in Puget Sound something possession.

00:32:40:18 - 00:33:10:05
Robert Miller
I think I've cut that out. It's in my longer chapter that I wrote in 2015. So you may have been at the very spot. They had the ship shoot off cannons and George Vancouver and some of his officers went ashore, hoisted the British flag, drank a good porter, and claimed that entire area for England. So these acts of possession, this doctrine Discovery's been used everywhere around the world by Europeans.

00:33:10:07 - 00:33:15:17
Mark Titus
Wow. 50 years old, learning things every day. This is fantastic.

00:33:15:19 - 00:33:44:02
Robert Miller
And since we're talking about Alaska, let me just briefly mentioned Spain. Spain, of course, Balboa, if you remember when he crossed Panama, what do you do? He waded into the waters of the Pacific and he claimed the entire ocean for the king of Spain. Spain claimed for many, many hundreds of years that no other European power could sail in the Pacific and that under God's commands and under this international law, they own the doctrine of discovery.

00:33:44:02 - 00:34:22:01
Robert Miller
They owned the Pacific. So when Spain heard that Russia was sending expeditions and traders across to what's now British Columbia and Alaska, Spain started sending expeditions north. Many of them went quite north, maybe to the 60 degree of latitude, and they would go ashore on various spots in what's now Alaska and British Columbia raised the flag. The priest would would sing to the to de France, even landed one time just so your audience if in book a rally sound which is in modern day southeast Alaska.

00:34:22:01 - 00:34:44:18
Robert Miller
I do not know where it is. On July the first, 1786, the French seaman, John Francois de la Petrus, went ashore and engaged in an act of possession, a legal formality. So Alaska has had a lot of attention and a lot of application of the doctrine of discovery throughout its history.

00:34:44:20 - 00:34:58:07
Mark Titus
Wow. Possession, branding. These are all talk about domination. I mean, these are all ideas and concepts that are just absolutely from that wellspring of domination.

00:34:58:09 - 00:35:15:21
Robert Miller
It would be like me walking over to your house today and putting the Bob Miller flag in your front yard and the Bob Miller religious symbol in your yard. And then I'd say, Well, hey, I'm a law professor or I'm an Oregonian, I'm better than you. God meant for me to have your land. That is exactly what was going on.

00:35:15:21 - 00:35:44:00
Robert Miller
It's almost a joke. It's almost a charade. But it was international law. It still is international law. And let me tell you something, Mark. International law to this very day still accepts titles by countries when they were claimed under the law, when they were claimed, not under the law. We might deem fair today. Wow. So this is a very valid principle of international law.

00:35:44:02 - 00:36:12:15
Robert Miller
We don't dispute the borders of France. I maybe you go to war and you try to win it, but the rest of the world recognizes the borders of France and the United States. And we don't question how you acquired those in the 500 ad or 800 ad or here in the U.S. when we in Canada drew the line at the 49th degree of parallel, we just agree now because it's in our benefit and their benefit to accept these borders.

00:36:12:16 - 00:36:52:15
Mark Titus
Okay. So we're going to we're going to start getting into focus mode again. We're talking about land. We're talking about land and look, here we are again. It's 2022 and Russia has expanded. It wants to expand its empire. It looks appears for all the all the world. Like if Putin and his allies want to make up for the their perceived humiliation in the nineties and annex and take land back into the fold of what was the former Soviet Union boy, this is his age age old as it gets I mean land in skirmishes over land.

00:36:52:15 - 00:37:25:22
Mark Titus
But in Alaska, we we saw this doctrine of discovery enacted by Russian people. And then at a certain point, Americans came in. And there's, of course, this concept or this this moniker of Seward's Folly. Can we talk about how and why Alaska became an American territory and then subsequently a state, and that will then directly lead us into the discussion of ANCHOR or the Alaska Native Claims Settlement Act.

00:37:26:00 - 00:37:42:23
Mark Titus
And we're going to probably eclipse and in this chapter there today. But let's talk about that handoff from Russians to Americans. What the what the idea was at the time and then how that kind of leads us into modern day Alaska today.

00:37:43:03 - 00:38:03:14
Robert Miller
Absolutely. I mean, some of your audience may be going, well, wow, this in ancient history is interesting, but how does it relate today? And that's exactly what we're going to do. So when the United States sent the Lewis and Clark expedition to the mouth of the Columbia River, we did that because an American discovered the Columbia River first in 1792.

00:38:03:16 - 00:38:29:00
Robert Miller
Thomas Jefferson told Meriwether Lewis to occupy that spot. That's my second element, the doctrine of discovery. And then by 1811, the great American fur trader John Jacob Astor builds the town of Astoria, which is still at the mouth of the Columbia River today. So the United States legal claim to the Pacific Northwest is based on first discovery John.

00:38:29:02 - 00:38:55:11
Robert Miller
Robertt Gray in 1792 of the Columbia River. We claim that entire drainage system, even though that river is 1500 miles long and runs way up into Canada. But we were disputing the Pacific Northwest with Russia, Spain and England and the United States. These were the four countries that were arguing under international law that they own the entire Pacific Northwest.

00:38:55:13 - 00:39:24:01
Robert Miller
The United States very cleverly signed a treaty with Russia in 1824 and agreed that Russia owned everything but north of the 54th degree of parallel. That's identical southern tip of Alaska today. But Russia ceded all its claims to the south. So that's your Puget Sound. That's your San Francisco Bay that you talked you and I talked about earlier to the United States.

00:39:24:03 - 00:39:58:00
Robert Miller
Well, three years before that, we had signed a treaty with Spain in 1821, and we agreed the United States, to recognize Spain's claim discovery claims to everything south of the 42nd degree of parallel. Well, take a wild guess, Mark today. That's the boundary line between California and Oregon. So we recognized Spain's claims. Everything's south of there. Spain recognized our claims from the 42nd degree of parallel to the 54th degree of parallel.

00:39:58:01 - 00:40:26:12
Robert Miller
So now we only were arguing with England. England signed a treaty with Russia one year after ours that agreed to the eastern boundary line of Alaska. So we now had all agreed to divide that up for our domination, our exploitation, Indigenous peoples and Indigenous nations be damned. So as you said, I think you said 1869, but I think the date is 1867.

00:40:26:12 - 00:40:48:19
Robert Miller
I could be wrong when Seward signed this treaty with Russia and for what, $9 million, I think it was, we bought Russia's claims to Alaska. Remember, the old joke was Seward gave up too much of what we don't have, which was cash for too much of what we already have, which was a lot of land we didn't know what was up there.

00:40:48:19 - 00:41:25:02
Robert Miller
It was called Seward's Icebox, etc.. So what's interesting, folks, is the treaty we signed with Russia, I think in 1867 or 69 protected any Russian that lived there and protected their property rights. But the native peoples who are mentioned in that treaty were left to the mercies of the United States. I don't have the quote right in front of me, but the treaty says something like They'll be dealt with pursuant to any laws the United States might enact.

00:41:25:04 - 00:41:47:23
Robert Miller
The United States only enacted two laws that mentioned native peoples that I know of. I could be wrong on this. I'm not an expert on this. But in 1884 and in 1900, the Congress passed laws about the territory of Alaska and vaguely mentioned native tribes that they might be up there, they might own rights, they might have land.

00:41:47:23 - 00:42:11:08
Robert Miller
We'll worry about that later. And obviously, there were hundreds, maybe thousands of indigenous groups, tribes, bands, whatever you want to call them, nations in Alaska. So who knew what was in Alaska? It really was America's final frontier. And how do you deal with it? Well, gosh, then we found gold in the 1880s. All of a sudden it's of great interest.

00:42:11:08 - 00:42:44:18
Robert Miller
And of course, the discovery of oil, as you know what, 1969. But I do I want to talk about one case in particular before Alaska became a state. And this is why I know about this 18 four law and this 1900 law that Congress did pass about Alaska in 1954, the Teton Band or clan of the I think of the killing at Haida People, The Killing, it's maybe we're suing the United States for cutting timber off of killing.

00:42:44:18 - 00:43:13:14
Robert Miller
It lands this is land that is now in the song US National Forest. The United States knew there were legal claims to this, so when they cut this timber, they put the money in a trust account because they knew the Tetons and keeping it Haida peoples would be saying, Hey, you're stealing our timber. The 1954 Teton case is about the worst case in Indian law there is to teach.

00:43:13:16 - 00:43:43:11
Robert Miller
I mean, it's the Dred Scott of Indian law. In 1954, the Supreme Court pretended to apply Johnson v Macintosh that 1823 case I've already talked about. Yep. Let me tell you just one more whole. The holding of Johnson V Macintosh Indigenous peoples, once they're discovered, Yes, they lose some rights in their land, but they don't lose all their property rights.

00:43:43:13 - 00:44:09:02
Robert Miller
They still the right to occupy and possess their lands. And in 1823, Chief Justice Marshall said there's only two ways for the United States to get land from indigenous peoples. You have to buy it via a treaty or you have to conquer it in war. Now, you mentioned war or Indigo. We could have a whole show on what's called just war and even what's going on in the Ukraine.

00:44:09:02 - 00:44:34:14
Robert Miller
Now, let me just backtrack one second. I mentioned to you international law. I said there were three major forms of international law in the 1400s that were developing. I mentioned the Law of the Sea. I mentioned the law of Discovery. Well, the law of war is a third well known international legal principle that is developed in the 1200s a 1300s of 1400s.

00:44:34:14 - 00:44:57:20
Robert Miller
What did King ay get when King was Army conquered? Queen bee. And so if Russia takes territory and somebody doesn't evict them from that, the law of war will recognize those boundaries. I'm afraid I'm no expert on this. So I stop right there, that point. But I just want to get back to Alaska and the Tibetan case. Yeah.

00:44:57:21 - 00:45:19:23
Robert Miller
Remember what Johnson v McIntosh said? The United States can get the Indian title to land in only two ways. They have to buy it through a treaty, voluntary agreement, or there has to be a just war and the United States conquers it. And pursuant to the law of war, the U.S. is now the owner. The United States did neither of those things for the lands.

00:45:19:23 - 00:45:39:22
Robert Miller
That's now the strongest national force. They didn't pay for it. They had no treaty. They hadn't fought a war with the Tibetan peoples. And so that's what the lawsuit was about. Why did the United States think it had the legal right to cut the timber out of what's now the song as national force and keep the money so the U.S. Supreme Court in time?

00:45:39:22 - 00:46:06:01
Robert Miller
The reason I call it the worst case, as bad as Indian people think Johnson v McIntosh is and as bad as the doctrine of discovery is for Indigenous peoples around the world, Tibetan is even worse. Tibetan looked at that 1884 law I mentioned. They looked at the treaty the U.S. signed with Russia. They looked at that law from 1900 in which said, Hey, there's no doubt native peoples up there and they might have rights to some land.

00:46:06:05 - 00:46:26:12
Robert Miller
We'll worry about that later in due time. They said, Hey, folks, you Indians have no right to this land at all. The United States is the owner. The United States has it. It can cut this timber and do with it as it wishes. So Tibetan is so bad because it didn't even apply the horrific Johnson v McIntosh rule properly.

00:46:26:14 - 00:46:38:08
Robert Miller
So that's why I mentioned this was of course five years before statehood. But Tibetan is the worst of all. It's the application of the doctrine of discovery in the worst way.

00:46:38:10 - 00:46:48:20
Mark Titus
Was to say, was this a circumstantial to the political temperature of the day, or how did it get interpreted this way?

00:46:48:22 - 00:47:14:22
Robert Miller
Some people say exactly what you just said, Mark. Some this was there have been seven eras of federal Indian policy when the United States had certain goals towards native peoples in the 1950s. Historians call this the termination era, and it was to destroy the legal existence of all tribal nations in the U.S. So some people say, look at the date of the Tibetan case.

00:47:14:22 - 00:47:43:15
Robert Miller
It's 1954, smack dab in the middle of what historians call the termination era. Indigenous rights were to be gone, but I don't even know that does not justify Tibetan and Tibetan is not even justifiable under Johnson v McIntosh. When did the United States get the title to these lands of the Tibetan calling it Peoples? They cannot prove they ever bought it voluntarily or conquered it in war.

00:47:43:21 - 00:47:48:15
Robert Miller
So this was outright confiscation and I guess theft.

00:47:48:17 - 00:47:55:03
Mark Titus
Where where have things ended with the Tibetan case? Where are we at today with that? Is that is that the end of the story right there?

00:47:55:05 - 00:48:20:04
Robert Miller
Yes. Once the Supreme Court decides a case, now, we just when we see the news yesterday, Roe versus Wade, the Supreme Court might change its mind very quickly. Well, not very quickly. It's been 50 years. The Supreme Court has reversed in 230 years, maybe about 300 of its own decisions. Maybe I read somewhere on line 145 of its own constitutional law decisions.

00:48:20:06 - 00:48:48:23
Robert Miller
So maybe Johnson D. Macintosh could be reversed by the US Supreme Court someday. Maybe Tibetan could be revisited. But in our Anglo-American legal system, Mark, we allegedly believe in star decisis. That means the thing decided we believe in precedent. But the Supreme Court's not supposed to radically change its mind overnight. And that's why Roe versus Wade, if they change it, is going to be a bombshell, right?

00:48:49:04 - 00:49:12:00
Robert Miller
So you asked me, will they revisit Titan? I kind of doubt it. I mean, if something were to be done, it's the Congress that should authorize money to pay I mean, call this reparations. The Supreme Court could reverse t a time. What could they order as a as a judgment and as a remedy? We can just dream up anything, but it would be shocking.

00:49:12:02 - 00:49:41:04
Mark Titus
Okay, well, that's a grim backdrop indeed. But it does help us to explain where we are today in Alaska. And we're just going to kind of set the stage there. It's now 1959. Alaska is becoming a state. You mentioned the discovery of oil. And it doesn't take a super genius to to imagine what happens upon the discovery of oil in a particular region.

00:49:41:09 - 00:49:55:00
Mark Titus
But can you take us from that point on and how that set a an unprecedented structure for native peoples in Alaska from that point forward?

00:49:55:02 - 00:50:17:20
Robert Miller
Okay, Mark, you've caught me by surprise. I didn't know we were going to talk about that subject today. I'll tell you as much as I know about this subject and then a little bit about ants. But I teach this very year half of one class in my basic Indian law class. Do I discuss the the law of Alaska Natives, as you mentioned, when was oil discovered?

00:50:17:20 - 00:50:46:20
Robert Miller
I don't know. But I believe it's in 1969 that we started building the pipeline, a 900 mile pipeline from the drilling platforms to what? To Valdez, which was an ice free port. Guess how many native peoples and villages and nations were in the way of that 900 mile pipeline? So I understand you're going to have people on your show that know far more about answer the Alaska Native Claims Settlement Act than I do.

00:50:47:01 - 00:50:52:00
Robert Miller
In fact, I'm going to Didn't you say the date of that bill was 1971?

00:50:52:02 - 00:50:54:06
Mark Titus
I believe that's correct. Yeah. Okay.

00:50:54:08 - 00:51:21:00
Robert Miller
So once the pipeline started to get built, it's my understanding that more than 40 native villages started filing lawsuits or making claims, Hey, United States, you're building this pipeline on our lands. Now that here on case that I mentioned is kind of irrelevant. Right? So that's all that's from 15 years earlier. But the title case recognized no rights for the Teton Kling.

00:51:21:00 - 00:51:42:08
Robert Miller
It peoples in what wasn't is now strongest national forest. So here's a 900 mile pipeline that the United States considers crucial to national security money. Come on, face it, it's profits for certain people. Yes, it's part of economic development for the U.S. So it'll be interesting if you have other people on the show. Again, I do not know.

00:51:42:08 - 00:52:09:10
Robert Miller
And I do not I I'm not even too comfortable talking with you about Exxon. I'm just telling you the extent of things I know. So the United States wanted these indigenous claims out of the way. We want this pipeline built as fast as possible to take advantage of this oil and indigenous claims. Get out of here. So this is about as much background as I know of the Alaska Native Claims Settlement Act.

00:52:09:10 - 00:52:32:05
Robert Miller
So you said the see, it's about the claims to land how the United States was either going to compensate, litigate or legislate on these issues. So I'm not even comfortable saying too much more about this because this is in the expertise of people I think you're going to have on the show. Native groups, Native people negotiated, Native people saw what was coming.

00:52:32:05 - 00:52:58:17
Robert Miller
They saw the elephant in the room, the behemoth coming down the road. Do we fight it? Do we negotiate, Do we cooperate? This is what you're going to have people on your show about. But we do end up with the 1971 answer. You end up with the 1980 ANILCA. The Alaska Native Interest lands Act, about indigenous Aboriginal hunting and fishing.

00:52:58:17 - 00:53:23:16
Robert Miller
Right. You should have shows on that law. But I've just about already told you as much as I know about that. But it's a prime example of the Spanish, the Portuguese, the Russians. Captain Cook showing up. We want your assets. In those old days it was about fur trade. Do you know the most lucrative industry in the world for several decades was the sea otter trade All right.

00:53:23:16 - 00:53:49:08
Robert Miller
California, Oregon, Washington, coast up into the Bay of Alaska and taking those furs to China. That's exactly why Robertt Gray, that American was in the Columbia River in 1792. He was part of that fur trade. So now in the 1960s, it's not furs, it's oil. And indigenous claims were in the way. So something was going to happen.

00:53:49:10 - 00:54:28:21
Mark Titus
Look, this is a fantastic backdrop and it's exactly what I was hoping to cover today. You are indeed correct. We are going to be talking to Nels Anderson, who was instrumental in the early parts of INXS, and especially in the case of Bristol Bay and the Bristol Bay Native Corporation. Of course, unlike the Lower 48, where things were decided on basis of treaties and reservations in Alaska, they opted to do a different structure and create 13 regional tribal corporations that then had to turn a profit.

00:54:28:23 - 00:54:43:20
Mark Titus
This is all, of course, though, as you mentioned, with the quote unquote discovery of oil and the United States wanting to create a free and frictionless barrier to use and exploit that oil. Absolutely.

00:54:44:00 - 00:55:14:16
Robert Miller
You and your audience might be interested in this. The United States Congress ended treaty making with tribes in 1871. So treaty making with Alaska Natives was not even available in the 1960s. There are plenty of people that say that 1871 law of Congress is unconstitutional, but no one's ever challenged it, to my knowledge. But the only way to deal then with Alaska Native claims was through federal negotiation and legislation from the Congress.

00:55:14:18 - 00:55:41:19
Robert Miller
And that's how the United States in the gauges in Indian law to this day, really, this is the United States engages in hundreds of negotiations and agreements through the executive branch with the Indian nations. And then if there's a final agreement, Congress passes it into law. So treaty making with tribes is gone for over 100 years. Now, legislation through the Congress is how Indian law gets enacted today.

00:55:41:22 - 00:55:45:02
Robert Miller
So obviously that's what led to Exxon.

00:55:45:04 - 00:56:05:17
Mark Titus
That's a fantastic addendum, and I think that's a really good place to park it for today. But since your guest on the show, we have a fun little bonus round that I would you are no exception. You're going to get to indulge in this and if you if you'd be so willing to indulge me this is just a little bit of an imagination here.

00:56:05:17 - 00:56:23:11
Mark Titus
But let's just say your path, your house were in the path of a wildfire. And I'm knocking on wood as we saying this, because now it's not such a fantasy. But if there's one physical thing you could take with you, what would that physical thing be?

00:56:23:13 - 00:56:25:17
Robert Miller
Well, I thought of my passport first.

00:56:25:19 - 00:56:26:12
Mark Titus
You know, you.

00:56:26:12 - 00:56:41:05
Robert Miller
Go I mean, you don't need your checking accounts anymore because that's all online, isn't it? That's one physical thing that I would grab out of my house. I have my.

00:56:41:05 - 00:57:06:09
Mark Titus
Passport that's here. And enough. You know, like, I think some folks you wouldn't you would be amazed at the answers folks have come up with. Well, the second part, then, is a little more of a metaphysical thing, a little more of a mental thing. But if if let's just say, could only take two things, two attributes that make you you what would those two things be if you could take those along with you?

00:57:06:11 - 00:57:31:22
Robert Miller
My only skill is that I'm a good public speaker. I've been trained at public speaking when I was youngster, giving public speeches to hundreds of people, even thousands sometimes. And I make I can make boring subjects live and that's why I, as a legal historian, if that's what I have become, I've enjoyed that. Now, you said, what's this?

00:57:31:22 - 00:57:35:15
Robert Miller
Two things. Well, my youthful good looks, I guess.

00:57:35:17 - 00:57:55:14
Mark Titus
Yeah, you got that. You are right on both counts. And I will come back to you sooner than later so we can dig into more. And I guess the last question for you here in our little bonus fun round here is, is there anything you would leave behind to be burned up in that fire to be purified and nullified from your life?

00:57:55:16 - 00:57:58:17
Robert Miller
My civil procedure, Casebook.

00:57:58:19 - 00:58:00:02
Mark Titus
I've never heard that one.

00:58:00:02 - 00:58:10:17
Robert Miller
You know, I really should say that because I love teaching. I love civil procedure. What is something I'd like to leave behind? I don't know. Nothing.

00:58:10:19 - 00:58:15:12
Robert Miller
But you trying to make me pick one thing? Well, my cell phone.

00:58:15:14 - 00:58:42:14
Mark Titus
Yeah. Hell, yeah. I share that sentiment and ever, ever more every passing day. Well, Professor Robertt Miller, Arizona State University, and among many other accolades of which, we'll get into more the next time we get to spend some time together. Thank you so very much. Appreciate your wisdom on this in the 50th anniversary of ink. So we're going to hear more about this as we head down further into some other guests and storytelling.

00:58:42:19 - 00:58:45:06
Mark Titus
But for today, thank you. And we'll see you down the trail.

00:58:45:12 - 00:58:49:02
Robert Miller
Thank you for having me on the show.

Music
How do you save what you love?
How do you save what you love?

00:58:49:04 - 00:59:30:21
Mark Titus
Thanks for joining us here on Say what you Love. If you'd like to support our work, you can subscribe to this podcast through your favorite pod catcher or at evaswild.com. That's the word save spelled backwards wild dot com. And if you like these conversations, you can help keep them coming your way by giving us a rating and a review on Apple Podcasts for photos, follow us on Instagram at Say What You Love Podcast.

00:59:30:23 - 00:59:53:00
Mark Titus
This episode was produced and hosted by me, Mark Titus, and edited by Patrick Troll. What You Love is a partnership between Eva's Wild Stories and Magic Canoe in collaboration with the Salmon Nation Trust, and this episode was recorded on the traditional homelands of the Duwamish, people whose practices and spiritualities were and are tied to this land and water.