The 10 elements of the Doctrine of Discovery: The International Law of Colonialism

I recently published this very short article in a journal from UCLA. I set out what I think are the elements or factors that the United States Supreme Court used in 1823 to define what the Doctrine of Discovery means and how it is applied by the federal judicial branch. This international legal principle and these elements were used against Indigenous Peoples around the world for centuries. The Doctrine continues to affect Indigenous Nations today.


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Crow Nation Treaty Rights Upheld by Supreme Court

I was interviewed for 30 minutes over Skype and it has been posted on YouTube by Jordan Chariton the host of the web page Status Coup. We talked about the May 20 Supreme Court case in which the Crow Nation’s 1868 treaty hunting rights were upheld by a 5-4 vote.

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Haskell Lecture on American Indian economic development

On Friday March 23, I delivered the ASU College of Social Work’s 24th Annual Haskell Lecture.

I spoke about the crucial need for reservation communities and tribal governments to create functioning private sector economies on their reservations.

(Prof. Frank Rennie from Scotland delivered the Roatch Lecture that same day. We found amazing parallels between what Scottish communities in the Outer Hebrides Islands are doing today and historic economic development in Indian country.)

Check out the ASU Now story:

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Treaties between Indian Nations and the United States

I published this chapter in the 2017 book about my tribe. You can download it for free at:

Treaties between the Eastern Shawnee Tribe and the United States: Contracts between Sovereign Governments

The Eastern Shawnee Tribe of Oklahoma: Resilience through Adversity (University of Oklahoma Press 2017)

Robert J. Miller



The Eastern Shawnee Tribe and its political ancestors have long engaged in political and diplomatic relations with other Indian nations, European powers, and the United States. This chapter begins with the Tribe’s role in the Treaty of Greenville of 1795. Including that treaty, the Tribe entered eleven treaties with the United States that were ratified by the U.S. Senate and thus became constitutionally binding. The Eastern Shawnee also negotiated three other agreements with the U.S., one of which was approved by Congress. In addition, the Eastern Shawnee entered a treaty with the Confederate States of America in 1861. Moreover, throughout its history the Tribe has been involved in nearly constant political dealings, relationships, and agreements with other tribal governments. These negotiations and arrangements demonstrate the political existence and the government-to-government diplomatic relationship that the Eastern Shawnee Tribe has always engaged in with other governments and with the United States. The author undertakes a detailed analysis of each of these treaties and agreements and places them within the relevant chapters of the history and the legal history of the Eastern Shawnee Tribe.

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Eastern Shawnee Tribe and law

Here’s a chapter I wrote in the 2017 book about my tribe.  You can download it for free at:

Tribal, Federal, and State Laws Impacting the Eastern Shawnee Tribe, 1812 to 1945

The Eastern Shawnee Tribe of Oklahoma: Resilience through Adversity (University of Oklahoma Press 2017)

Robert J. Miller – Arizona State University (ASU) – Sandra Day O’Connor College of Law


The Indian nations in what is now North America developed traditions and laws to manage and control their societies and peoples and their interactions with other tribal governments. No society can long exist without developing effective control mechanisms. Thus, indigenous peoples governed themselves pursuant to well-established codes and rules. The vast diversity of the myriad cultures of Indian peoples across what is now the United States well represents the diverse governing systems and laws they developed.

The Euro-American societies that established themselves on the North American continent, and especially the United States, also developed policies, courts, and laws that had enormous impacts on tribal governments and Indian peoples. Many of these court cases, policies, and laws played an important role in the history, operation, and existence of the Eastern Shawnee Tribe and its citizens. In addition, the state of Oklahoma and its courts and laws also impacted the Eastern Shawnee. This chapter examines some of the constitutional and legal provisions, from roughly 1812 to 1945, that the Eastern Shawnee, United States, and Oklahoma governments adopted that impacted the Eastern Shawnee people. The chapter also highlights how the Eastern Shawnee people governed themselves in Ohio, until 1832, and then in the Indian Territory, and the Constitution and By-laws that the Tribe adopted in 1939 and 1940.

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Consultation with Indian Nations

Download this paper for free at Social Science Research Network

Consultation or Consent: The United States Duty to Confer with American Indian Governments

Robert J. Miller

Arizona State University (ASU) – Sandra Day O’Connor College of Law


This 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 this area of law 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 emerged in the drafting of 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, though, the international community has begun focusing on consultations with Indigenous peoples and has increased the international law obligation on 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 just consulting with tribal governments.

This 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 new international law consent movement.

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American Indians and birth certificates?

An AP article by Felicia Fonseca reports that Arizona is helping tribal citizens to get birth certificates. Indians born on reservations have often had problems proving their births to state agencies and subsequently securing various state documents and United States passports, for example. (My mother had a very difficult time getting her first passport and she had to use Bureau of Indian Affairs documents to prove she had been born in Oklahoma.)

Arizona adopted a new policy in September 2014 and now accepts tribal enrollment documents in proving births and birth dates and dropped the requirement of testimony from witness of a birth.

State Senator Carlyle Begay and Representative Albert Hale are working to incorporate this policy into state law. They are worried, however, that this new policy could get caught up in the immigration debate.

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