Washington State University Indigenous Peoples’ Day Speech on the Doctrine of Discovery

Check out my one hour and 14 minute talk on Zoom for Washington State University. I discussed the Doctrine of Discovery and Johnson v. McIntosh (1823) and how international law has for over 600 years limited and infringed on the sovereign, political, human, and property rights of Indigenous Peoples. The talk is on YouTube:

 https://youtu.be/hYBh353_QWw

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Federal Execution of a Navajo Nation Citizen

As the United States proceeds towards executing Lezmond Mitchell, a Navajo Nation citizen, many native activists and the Navajo Nation itself are protesting this proposed act.

To get some background on this issue, read this op/ed piece by ASU Law grad Kevin Heade. The Native American Bar Association of Arizona also signed a letter opposing the death penalty in this case.

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The crucial need for Private-Sector economies in Indian Country

This article from Native Business magazine was published August 17:

“Robert J. Miller: Diversify to Recession-Proof Native Economies – Native Business Magazine”

Robert J. Miller: Diversify to Recession-Proof Native Economies

Posted in Economic Development, Private sector economic development, Uncategorized | Leave a comment

The Indian Law Bombshell: McGirt v. Oklahoma, U.S. Supreme Court

FYI – We posted our working paper on line last Sunday. You can download if for free. We would appreciate any comments.

The Indian Law Bombshell: McGirt v. Oklahoma (July 9, 2020).

In case you are interested in this very significant Indian Law case from last month, we have posted on SSRN.com (Social Science Research Network) our “working paper draft” on the U.S. Supreme Court case McGirt v. Oklahoma. The Supreme Court surprised many people when it held, by a 5-4 vote, that the Muscogee (Creek) Nation’s 1866 reservation has never been disestablished and still exists today. The reservation is once again recognized as comprising three and a quarter million acres, in which one million Oklahomans live, including 400,000 people in Tulsa.

The article can be downloaded for free at:

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3670425

I’ve had problems with the link.

If you paste it into your browser, it works fine.

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3670425

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Voice of America video report on McGirt v. Oklahoma

On July 9, the U.S. Supreme Court issued a very significant Indian Law case. The Court forced the United States to live up to its treaty promises of 1832 and 1866 to recognize the boundaries of the Muscogee (Creek) Nation reservation. On Thursday, about one million Oklahomans found out they still live in Indian Country (18 U.S.C. 1151).

The Voice of America media outlet interviewed me about the case on July 9 and the video can be viewed here:
https://www.voanews.com/episode/us-supreme-court-deems-half-oklahoma-native-american-reservation-4350421

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Zoom talk on the McGirt case Thu July 16 from the Oregon Historical Society

Please join me in a noontime [PDT] talk for the Oregon Historical Society about the July 9 U.S. Supreme Court case McGirt v. Oklahoma in which the Court enforced the United States’ treaty promises from 1832 and 1866 to recognize the boundaries of the Muscogee (Creek) Nation reservation. About one million Oklahomans just found out they live in Indian Country, [that term is defined in 18 U.S.C. 1151]. This decision will require the resolution of multiple criminal, civil, tax, regulatory, and other issues in the years to come.

https://ohs.org/events/mcgirt-v-oklahoma.cfm

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U.S. Supreme Court decides McGirt case and restores a huge chunk of Oklahoma to Indian Country and the Muscogee (Creek) Nation

On July 9, the United States Supreme Court issued McGirt v. Oklahoma. The Court held that the Muscogee (Creek) Nation reservation boundaries still remain as defined in its 1832 and 1866 treaties with the United States. Thus, this area is still a reservation and still “Indian Country” as defined in 18 U.S.C. 1151. About one million Oklahomans just found out they live within the Creek Reservation, including about 400,000 people in Tulsa.

This article about the case is in today’s Arizona Republic, July 12, 2020.

https://www.azcentral.com/story/news/local/arizona/2020/07/11/supreme-court-ruling-expanded-tribal-land-what-does-mean-arizona/5410782002/

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Black Lives Matter – Related

One of my recent law review articles sheds light on a little known subject that is intimately related to racism and racial history in the United States and the world. This topic is especially important now while much attention is focused on various issues surrounding the Black Lives Matter movement and protests. In my article “Nazi Germany’s Race Laws, the United States, and American Indians“, my research demonstrates clearly that in drafting the Nazi laws to discriminate against Jews that Adolf Hitler and the Nazi Party closely studied America’s Jim Crow and other racial laws directed at Black Americans, and also intimately examined American Indian Law and the United States treatment of Indigenous peoples and nations. I also point out how Manifest Destiny, eugenics, involuntary sterilizations, immigration and naturalization, and bans on inter-racial marriages were used against Blacks and Indians. The article will not in hard copy for about six months but you can download my final draft for free right now at

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3541009

Here is the Abstract on SSRN for my article:

Most Americans and American lawyers would probably be shocked to learn that in the early 1930s Nazi Germany’s scholars, lawyers, and party officials were carefully studying United States race laws and Federal Indian law. As part of a comparative law system, Germans were accustomed to researching the laws and legal systems of other countries to find insights and models. In the 1930s, they were researching how to legally discriminate against Jews and they found their models in United States law.

This article expands on preexisting research into how Adolf Hitler, Nazi party officials, and Nazi scholars studied American law in the process of drafting the 1935 Nuremberg Laws. This article adds to this subject by closely examining how the Nazis also studied and relied on Federal Indian Law.

Hitler and many Germans were relatively well-informed about American Indian issues and history, and U.S. anti-miscegenation laws, involuntary sterilization laws, citizenship practices, and the Jim Crow laws in general. In fact, in Mein Kampf, Hitler mentioned U.S. laws and policies and noted that the United States was a racial model for Europe and that it was “the one state” in the world that was creating the kind of racist society the Nazi regime wanted to establish. Obviously, Nazi scholars followed his lead and they researched and wrote numerous articles and books on American race laws.

This article also addresses how Germans and Nazis analogized the “American Frontier West” and “Manifest Destiny,” and the treatment of Indian nations and peoples, to the Nazi plans to invade the “German East” to serve the longstanding German policy of Lebensraum and colonization of the East.

In regards Federal Indian Law, Heinrich Krieger and other German/Nazi scholars undertook serious and prolonged studies of the subject. They considered “Indian Law” to be “a racial law” and to be a unique “extra-constitutional situation.” They concluded that Indians had been discriminated against for centuries in North America based on race and blood. Consequently, Nazi Germany would be well justified doing the same to Jews and other minorities.

In September 1935, Adolf Hitler announced the culmination of the Third Reich’s research into American laws and Federal Indian Law in its efforts to racially discriminate against the Jews. The Nuremberg Laws stripped German Jews of their citizenship and their rights and started Germany on the road to the Holocaust. The Laws criminalized marriage and sexual relations between Jews and Germans. There was only one country in the world the Nazis could find that criminalized inter-racial marriage – the United States. In fact, forty-one of the American states had anti-miscegenation statutes. The Nazis also studied the numerous state Jim Crow laws and the United States immigration and naturalization laws and policies from 1790-1924. In addition, the United States conquest of American Indian nations, ethnic cleansing, and colonization of the Frontier West provided fodder and analogies for the Nazi invasion and colonization of the German East.

This article perhaps raises more questions than it answers about Federal Indian Law and its impact on Hitler and Nazi Germany. In the end though, how intriguing, yet at the same time how profoundly disturbing, that American law and Federal Indian Law played some role, or any role, in the Nazi formulation of Jewish policies and laws.

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Sovereign Resilience: Reviving Private Sector Economic Institutions in Indian Country

You can download for free my final draft of this article, that was published in the BYU Law Review in April 2019, at: https://ssrn.com/abstract=3214206 

Abstract

Indian country in the United States is incredibly poor. Indian nations desperately need to develop reservation economic activities. Most tribal governments, however, are primarily focused on developing tribally owned businesses. This article argues for Indian peoples and governments to revive and regenerate their centuries’ old tribal institutions that promoted, supported, and protected private sector economic development and economies. Indian country and Indian peoples need to develop economic enterprises and activities in their homelands to ensure their sustainability by creating living wage jobs and adequate housing. Developing private sector economies, in addition to tribal public sector economies, will help create economic diversification on reservations, new businesses and jobs, protect from economic downturns, slow the “brain drain” that all rural areas suffer, and promote more spending which will help Indian country benefit from the “multiplier effect” as more and more money is spent, and re-spent, on reservations.

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Virginia’s First Slaves: American Indians

You can download this article by Robert J. Miller for free on the SSRN webpage at: https://ssrn.com/abstract=3313827

Abstract

A little known fact of American history and law is the ubiquitous legal enslavement of Indian peoples over much of what is now the United States during colonial and early American times. In the Virginia colony, it seems that the first slaves of the English settlers were local Indian peoples and then large numbers of Indians captured elsewhere and transported to Virginia to serve as slaves on plantations. Much of this activity appears to have occurred before Virginian planters and traders began importing Africans to be enslaved. Complicating this history is that several Indian nations and many individual Indians actively participated with the English in raiding, enslaving, and trading Indians from other tribes and cultures and transporting them to Virginia, other American colonies, and even to the Caribbean.

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