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Inside the JAH: Species of Sovereignty

Detail of Painting of Joseph Brant/Thayendanegea (1742-1807) by Charles Willson Peale.

“Species of Sovereignty: Native Nationhood, the United States, and International Law, 1783–1795,” might be my longest-running academic project, having first taken shape as a very short paper for an informal presentation I made at the McNeil Center for Early American Studies about eight years ago, and substantially evolving since then. Because I’ve lived with the project for so long, I’ve had many chances to think about how I came to the project and what I hope such writing might accomplish.

In the article, I explore the legal contest for sovereignty over eastern North America that unfolded in the uncertain years after the American Revolution. Other scholars have focused on how the United States exploited the era’s law of nations to claim the continent; I trace how some leaders among the Haudenosaunee and Muskogee Creek peoples, who were unwillingly folded within U.S. borders, used this same body of law to assert Native nationhood and resist U.S. expansion. Their legal argument was born of constraint and confronted important limits, I suggest, but it also helped write ideas of Native sovereignty into nascent federal law.

[perfectpullquote align=”full” bordertop=”false” cite=”” link=”” color=”” class=”” size=””]“[T]hese two lines of scholarship present the legal contest in the early American borderlands as the battle for primacy between distinct Native and Anglo-American conceptions of law . . . But this illuminating frame risks obscuring the reality that Natives and Anglo-Americans were often relying on the same body of law to advance their claims—the European-derived law of nations. . .”

– “Species of Sovereignty,” 593.[/perfectpullquote]

Looking back, I think two things led me to this topic and argument. The first impetus came from where grad students are supposed to get their ideas: historiography and primary sources. At the time, I was reading all these excellent new works that sought to recontextualize foundational U.S. documents by placing them in an international frame, or that examined how the United States applied the law of nations to the Native peoples encompassed within its borders. Yet it seemed like something was missing from this account. I was in the throes of researching my dissertation, on the legal history of the first two federal territories, and I kept finding instances where Native leaders not only clearly grasped the legal claims being articulated to them, but then turned them around and used them to argue against the United States. This confirmed my strong presupposition as a legal historian to examine both sides of a legal discourse, since they’re usually being shaped in dialogue. And it seemed to me that the growing literature on international law, as exciting and important as it was, had omitted this other side of the discourse that I was finding.

The other motivation stemmed from my interdisciplinary training as lawyer as well as a historian. Because I teach in a law school, I sometimes, wearing my lawyer hat, try to puzzle through current legal doctrine. One of the areas of contemporary law that I teach is federal Indian law, and so I write about, and sometimes participate in, present-day legal controversies involving Native nations. As any Indian law scholar can tell you, this doctrine can be very dispiriting for advocates of tribal sovereignty, and often frustrates my students. Interestingly, the cases that most bring out their cynicism tend not to be the open defenses of colonialism that the U.S. Supreme Court penned in the late nineteenth century, but its more recent decisions. For the past forty years or so, the U.S. Supreme Court has become increasingly skeptical of the authority of Native nations. Both foundational and exemplary of this trend is Oliphant v. Suquamish (1978), where Chief Justice Rehnquist—a graduate of the law school where I now teach, I often remind myself—concocted a tendentious historical narrative to explain why tribes cannot exercise criminal jurisdiction over non-Natives within their reservations.[1]

Yet there is also an optimistic story to be told about this recent legal history, a narrative of the remarkable success of Native activists in pushing the creaky and often hostile machinery of the federal government to greater acknowledgment of their autonomy. There have been some particularly important achievements in the past few years—none perhaps more so than the 2013 reauthorization of the Violence Against Women Act, which partially overruled Oliphant to restore tribal criminal jurisdiction over non-Indians in some instances. There are all sorts of limits to such successes, but I think they’re notable when viewed within the long durée of Native legal history. But you shouldn’t take my word for it: there’s been lots of great writing on the subject from people engaged on the front lines of this struggle, people like Sarah Deer, Mary Kathryn Nagle, Matthew Fletcher, and many others.

[perfectpullquote align=”full” bordertop=”false” cite=”” link=”” color=”” class=”” size=””]“Native leaders not only indigenized European ideas such as sovereignty but also confronted these concepts within European legal discourse, deploying sophisticated international-law arguments that pushed back against the United States’ self-serving claims. Such a perspective heeds recent calls to consider Native intellectual history within the global history of ideas. . . .”

– “Species of Sovereignty,” 593.[/perfectpullquote]

Twentieth-century histories have done a great job tracing the pedigree for this contemporary Native legal activism, in works like Christian McMillen’s Making Indian Law, Charles Wilkinson’s unabashedly optimistic Blood Struggle, or, covering slightly earlier history, Katrina Jagodinsky’s Legal Codes and Talking Trees and parts of Josh Reid’s The Sea is My Country. But, at least to my reading, our models of Native power for still earlier periods rarely acknowledge this kind of claims-making or its potential efficacy. So much of recent borderlands scholarship has been about finding moments when Native norms and laws dominated people and territory. This important work has shown that there were a lot more of those times and places, and they lasted much longer, than we previously realized. Yet these narratives of Native grounds and empires, as meaningful as they are, strike me as at times disconnected from the realities confronting the tribal governments today, whose power and authority often stem from their savvy at navigating and exploiting the legal framework created by U.S. colonialism.

I didn’t set out to write the eighteenth-century backstory to these current struggles, but this frame nonetheless helps explain why I think the article’s history is meaningful for the present. Historians have long been familiar with Native efforts in the late eighteenth and early nineteenth centuries to remake their governance, especially in the Southeast, by adopting written constitutions, laws, courts, and other institutions that conformed to their white neighbors’ conceptions of civilization. But these stories are usually narrated in a tragic vein, with removal as capstone and symbol of how illusory Native efforts to get a fair shake within U.S. law were. I hope my article captures my sense that Native attempts to repurpose law were both more cosmopolitan and less U.S.-directed than often imagined and more successful than this bleak narrative suggests. Native leaders were playing a long game, and, although they lost a lot, they won, too, in ways that I think have proved consequential in the present.

I often assign my Indian law students Louise Erdrich’s powerful novel Round House. It is an intense book about one of the most pernicious consequences of the Supreme Court’s Oliphant decision in Indian country today—an epidemic of sexual violence directed against Native women, often at the hands of non-Native perpetrators. One of the main characters in the book is a tribal judge whose wife survived such an assault, a man deeply angered by his inability to secure her justice.

For me, one of the most evocative moments in the book, perhaps unsurprisingly, is when the judge attempts to teach his son about Indian law and its limits using a rotten casserole as a metaphor. Most of the U.S. Supreme Court’s precedents are disgusting pieces of sludge—particularly Oliphant. Yet the judge picks out one good chunk that could be the foundation for a better kind of law. It’s not a recent case, but one of the oldest and first cases in any Indian law casebook: Chief Justice Marshall’s decision in Worcester v. Georgia (1832).

The Round House reminds me why this history still matters, often powerfully, today. The principles embodied in Worcester didn’t come about by accident, or because John Marshall was particularly benevolent; they came, I think my article suggests, because Native leaders fought for decades, even centuries, to secure that limited victory. My hope is that this account of Native power, besides revising our historiographical understandings, might also provide a usable past for the ongoing struggles of the present.

Gregory Ablavsky is associate professor of law and of history (by courtesy) at Stanford University. His book Federal Ground: Governing Property and Violence in the First U.S. Territories is forthcoming from Oxford University Press.

For more from the Journal of American History, click here.

[1] Rehnquist, an amateur historian of a sort, was strikingly hostile to the new Indian and western history of the ‘70s, attacking its critique of western settlement as “revisionist.” In one case, he offered block quotations from his favored historians, Ray Billington and Samuel Eliot Morison, to show that alongside the federal government’s “greed,” “the Indians did not lack their share of villainy.”