American Indian Slavery in Virginia

A little known fact of American history and law is the ubiquitous legal enslavement of Indian peoples 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 that were captured elsewhere and transported to Virginia or the Caribbean 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.

Check out my article on this topic – Robert J. Miller, Virginia’s First Slaves – American Indians, 10 Wake Forest Journal Law and Policy, 195-215 (2020), Adobe cloud storage https://acrobat.adobe.com/id/urn:aaid:sc:VA6C2:7824e2ff-6e7e-4c19-95ea-cf7c3109be57

and

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3313827

Fighting the International Law of Colonialism

For over 600 years, Indigenous Peoples and Nations around the world have had to contend with the international law of colonialism and colonization, better known as the Doctrine of Discovery. The vestiges of this racist, ethnocentric, and religiously based legal doctrine continue to be part of the law of most nations on earth today. This book chapter highlights the development of this Doctrine and the specific elements or factors that comprise it. The author then lays out a strategy for Indigenous Nations and Peoples to fight back by unraveling and removing colonialism and these elements of the Doctrine from their national and state laws today. This appears to be the best way to aggressively and effectively remove colonization from the modern-day law and lives of Indigenous Peoples.

Robert J. Miller, Unraveling the International Law of Colonialism – The Doctrine of Discovery (May 30, 2026). Available at SSRN: https://ssrn.com/abstract=

United States duty of consultation with American Indian Tribes

My 2015 article explores the current international law movement to require nation/states to consult with Indigenous Peoples before undertaking actions that impact Indigenous nations and communities. The United Nations took a significant step in September 2007 when the General Assembly adopted the Declaration on the Rights of Indigenous Peoples. The Declaration contains many provisions requiring states to confer and consult with Indigenous peoples, and in many instances to obtain their “free, prior and informed consent.” This article undertakes an original and detailed investigation into how the free, prior and informed consent standard ended up in the Declaration.

But the article also points out that consultations and obtaining the consent of Indigenous peoples is nothing new in the political and diplomatic relations between American Indian Nations and the United States. From the very founding of the U.S., it has maintained a government-to-government relationship with Indian Tribes. This relationship is expressly recognized in the U.S. Constitution, and is reflected in hundreds of U.S./Indian treaties and in the history of the interactions between these governments. A nearly constant stream of formal and informal consultations and diplomatic dealings has marked this relationship.

In recent decades, the international community has begun focusing on consultations with Indigenous Peoples and has increased the legal obligations on nation/states to consult. The international regime is also moving far beyond mere consultations and is requiring states to obtain the free, prior and informed consent of Indigenous Peoples. On the surface, requiring the United States to obtain the informed consent of Indian Nations and Peoples, before undertaking actions that affect them, might be more onerous than merely consulting with tribal governments.

My article examines the history and modern-day processes for United States consultations with Indian Nations and the emerging international law standard of free, prior and informed consent. The article argues that the United States should continue and even enhance the consent paradigm that has always been the goal of federal/tribal relations. And, the article also argues that the United States should have little trouble adapting to the newly emerging international law consent movement.

Check out my article for free – Robert J. Miller, “Consultation or Consent: The United States’ Duty to Confer With American Indian Governments,” 91 North Dakota L. Rev. 37-98 (2015). Miller https://share.google/nBN61USyjyLQ7iHX3

Indian Economic Development issues; and Indian Law and policies are NOT DEI – podcast

Check out this Feb. 26, 2026 podcast from the Native Community Development Financial Institutions Network with Brian Edwards, Pete Upton, and Robert Miller.

https://www.buzzsprout.com/2352819/episodes/18669874-before-the-banks

Oregon State Bar Profile

I am proud to share this article/profile that the Oregon State Bar Bulletin published about me in its April 2026 edition.

OSB Bulletin https://share.google/dAREykvDiSTAUohP1

Adolf Hitler, Nazi Race Laws, and American Indians

In 2020, I published a very important and interesting article on how American Indian Law and U.S. race laws impacted Nazi Germany. You can read the article for free on this SSRN link (Social Science Research Network) – https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3541009

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.

New book just released on tribal economic development

The second edition of my book “Reservation Capitalism: Economic Development in Indian Country” (2d ed. Bloomsbury Publishing 2025) was just released and can be ordered on Amazon.

Tribal Relations 101 for State Legislators

I was honored to appear on this podcast with the Lt. Governor of Minnesota, Peggy Flanagan. She is a citizen of the White Earth Nation in Minnesota. We discuss the topic – Tribal Relations 101 for state legislators. She is now running for the U.S. Senate. Have a listen. https://youtube.com/live/bVmnYD1lSUQ?si=k69AKvMx-Fkmumzv

Native Americans in Philanthropy and the National Caucus of Environmental Legislators (NCEL) have joined forces to enhance their collaboration on this podcast.



American Philosophical Society speech for Native American Heritage Month

Canada using Inuit Peoples to claim the Northwest Passage? = The Doctrine of Discovery?

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A New York Times article on October 20, 2025 laid out how Canada is now using Inuit Peoples as an integral part of Canada’s legal claim to have sovereignty over the Northwest Passage. Norimitsu Onishi, In a Warming Arctic, a Fight Brews Over the Fabled Northwest Passage, N.Y. Times, Oct. 20, 2025, – https://www.nytimes.com/2025/10/20/world/canada/canada-arctic-northwest-passage.html

The sub-title to the article states: “The Inuit of the far north helped solve the mystery of a doomed 19th-century expedition. Now Canada needs them to strengthen its claim to this newly contested region.” Id.

The article states that “The United States and several other nations reject Canada’s claim of sovereignty over the Northwest Passage and consider it an international waterway, even though it traverses Nunavut, a vast Canadian territory home to Gjoa Haven and two dozen other sparsely populated Inuit hamlets.” Canada, however, claims the presence of these settlements of Inuit Peoples prove Canada owns the Northwest Passage. “The Canadian government has long asserted Arctic sovereignty by relying on the Inuit’s continuous presence. Its claim is based on the legal concept of “historic title, founded in part on the presence of Inuit and other Indigenous peoples since time immemorial,” according to a government statement.” Id.

Canada has also published a “statement” that relied on the presence of Inuit Peoples to establish its claim to the Northwest Passage. https://www.international.gc.ca/world-monde/assets/pdfs/canada_arctic_foreign_policy-eng.pdf (at pg. 7 – “Canada’s Arctic sovereignty is long-standing, well established and based on historic title, founded in part on the presence of Inuit and other indigenous peoples since time immemorial.”).

It must be pointed out that this is a wildly ironic turnabout of the international law of colonialism (Doctrine of Discovery) that developed in the early 1400s and has been used to justify European colonization of the entire world. I have written two books on the Doctrine, and a dozen or more law review articles. 

In 2006, I defined this international law as being composed of 10 specific elements which European countries used to claim certain parts of the world. My second element or factor is that “actual occupancy” of an area helps a colonizing country to claim that area. Robert J. Miller, Native America, Discovered and Conquered: Thomas Jefferson, Lewis & Clark, and Manifest Destiny 3-5, 18-20, 68-69, 147, 156, 159 (Praeger Publishers 2006). https://www.amazon.com/Native-America-Discovered-Conquered-Jefferson/dp/0803215983. This is exactly how Canada is using the Inuit Peoples for its claim under “actual occupancy” as proving under international law that Canada owns the land and waters around the Northwest Passage. 

It’s ironic to see the 600 year old Doctrine of Discovery being used in the modern era to claim parts of the World.

But this is not the first time this has occurred in the Twenty-First Century. Both China and Russia have invoked the elements of the Doctrine of Discovery and used “actual occupancy” in attempting to claim the South China Sea and the North Pole. 

On August 2, 2007, Russia planted its flag at the bottom of the North Pole and made a symbolic claim to own the oil and gas resources that are located there. These resources comprise about 25% of the earth’s known reserves of these resources. Tom Parfitt, Russia plants flag on North Pole seabed, The Guardian, Aug. 2, 2007, https://www.theguardian.com/world/2007/aug/02/russia.arctic

In August 2010, China planted its flag on the bottom of the South China Sea. China plants flag in south sea amid disputes, Reuters, Aug. 26, 2010. Since then, China has been building up sand bars into small islands and erecting buildings and putting troops and raising its flag in areas to claim exclusive jurisdiction and sovereignty over the South China Sea. The United States, Japan, Vietnam, and the Philippines are contesting those claims. China and the Philippines both plant their flags on the same disputed sandbar, NBC News, April 28, 2025, https://www.nbcnews.com/world/china/china-philippines-both-plant-flags-disputed-sandbar-rcna203256

It’s worth noting this use of the Doctrine of Discovery from the 15th century in the 21st!

When Russia planted its flag at the bottom of the North Pole, the Canadian foreign minister said this isn’t the 15th century and you can’t go around sticking your flag in lands and claiming them. https://www.theguardian.com/world/2007/aug/02/russia.arctic. I guess, Russia and China, and now Canada itself, think otherwise.