[Dipity] Beyond the Reservations: Indians, Settlers, and the Law in Washington Territory (fwd)
David Robertson
drobert at TINCAN.TINCAN.ORG
Sun Feb 28 01:54:50 UTC 1999
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Date: Sat, 27 Feb 1999 12:34:19 -0800 (PST)
From: peter webster <peterweb at teleport.com>
To: CHINOOK at LISTSERV.LINGUISTLIST.ORG, chinuk_illahee_northwest at eGroups.com
Subject: [Dipity] Beyond the Reservations: Indians, Settlers, and the Law in Washington Territory
FYI--I apologize if this has already been mentioned...
thanks to Ish and Dipity (once again!)
>Subj: LPBR: BEYOND THE RESERVATION: INDIANS, SETTLERS, AND THE LAW IN
>WASHINGTON TERRITORY, 1853-1889 by Brad Asher
>Date: 2/27/00 10:36:18 AM Pacific Standard Time
>From: rbrisbin at wvu.edu (Richard A. Brisbin, Jr.)
>Sender: LPBR at WVNVM.WVNET.EDU (Law and Politics Book Review)
>Reply-to: <A HREF="mailto:LPBR at WVNVM.WVNET.EDU">LPBR at WVNVM.WVNET.EDU</A>
>(Law and Politics Book Review)
>To: LPBR at WVNVM.WVNET.EDU
>
>Title: BEYOND THE RESERVATION: INDIANS, SETTLERS, AND THE LAW IN WASHINGTON
>TERRITORY, 1853-1889
>
>Category: Constitutional and Legal Rights, Native Americans
>
>
>LAW AND POLITICS BOOK REVIEW
>
>ISSN 1062-7421
>Vol. 10 No. 2 (February 2000) pp. 165-168.
>
>An Electronic Periodical Published by The Law and Courts Section,
>The American Political Science Association
>Herbert Jacob, Founding Editor
>
>Richard A. Brisbin, Jr., Editor
>Department of Political Science
>Box 6317
>West Virginia University
>Morgantown, WV 26506-6317
>E-mail: rbrisbin at wvu.edu
>
>Assistant to the Editor, Heather Starsick
>Technical Advisor: Robert D. Duval
>
>The Law and Politics Book Review is published on the LPBR list
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>
>____________________________________________________________________
>
>BEYOND THE RESERVATION: INDIANS, SETTLERS, AND THE LAW IN WASHINGTON
>TERRITORY, 1853-1889 by Brad Asher. Norman: University of Oklahoma Press,
>1999. 288 pp. Cloth $34.95. ISBN 0-806-13107-1.
>
>Reviewed by John R. Wunder, Department of History, University of Nebraska-
>Lincoln,
>
> "[W]hen the last Red Man shall have perished, and the memory of my
>tribe shall have become a myth among the White Men, these shores will swarm
>with the invisible dead of my tribe, and when your children's children think
>themselves alone in the field, the store, the shop, upon the highway, or in
>the silence of the pathless woods, they will not be alone. In all the earth
>there is no place dedicated to solitude." So said Seattle, the Duwamish
>elder, in his response recorded and translated to a speech given by new
>Washington Territory Governor Isaac Stevens in 1853. Governor Stevens told
>Chief Seattle that many whites had come to the Northwest and many more were
>on their way. Continued Seattle, "At night when the streets of your cities
>and villages are silent and you think them deserted, they will throng with
>the returning hosts that once filled them and still love this beautiful
>land.
>The White Man will never be alone." Stevens warned that is was important for
>the Duwamish people to accept American power and American law. Seattle
>reflected, "Let him be just and deal kindly with my people, for the dead are
>not powerless. Dead, did I say? There is no death, only a change of worlds"
>(Seattle 1971 [1853], 102).
>
> Chief Seattle, some have argued, was a solemn seer of the future. He
>had an inkling of his namesake city before anyone else did, and he understood
>the terrible cost of this huge migration to the land and to his people.
>Still others have found Seattle's words to be uncomfortable and too
>accommodating. They argue he seemed to accept his fate and that of his
>people without resistance and with a stoicism that predicated defeat and loss
>of identity.
>
>Remember his words - "There is no death, only a change of worlds."
>Before he died in 1866 at the estimated age of eighty years, Seattle had
>lived over thirty years as a converted Catholic, and in 1855 he signed the
>Point Elliott Treaty. He had witnessed life in his homeland beyond the
>reservation, or to use another phrase, "beyond the pale." What Seattle may
>not have foreseen was the strength of his people and his indigenous neighbors
>and their survival to a twenty-first century world without solitude.
>
> Part of that story of survival is rooted in the relationship of
>indigenous peoples to the historical evolution of American legal institutions
>over their land and their persons. This is an on-going process that has
>taken many different turns. Often these relationships have grown out of
>legislation or legal disputes that have directly involved Native Americans
>and their Pacific Northwest neighbors. The story of those first
>relationships, that of the collaboration and clash of law-ways for tribal
>peoples and American settlers, and the United States government's imposition
>of legal institutions in Washington Territory is the subject
>
>Page 166 begins here
>
>of Brad Asher's BEYOND THE RESERVATION.
>
> This book, a thoughtfully revised dissertation, is divided into nine
>chapters, including an introduction and conclusion. The introduction is
>particularly important because it explains the author's approach to this
>subject and offers a sophisticated discussion of Indian law and legal
>theory.
>The next seven chapters are each built around a particular territorial
>district court case. These cases are analyzed in detail, and they are used
>to highlight a broader discussion of reservation policy, territorial law,
>racial identity, American and indigenous legal cultures, and Indian legal
>consciousness. Of note are chapters six and seven. Here the author hits his
>stride and explains a number of new concepts that involve how Indians made
>use of and were caught up in nineteenth-century American legal institutions.
>The conclusion offers a brief summary.
>
> This book also includes an appendix, endnotes, and a bibliography.
>The
>appendix features three tables of criminal cases from the territorial period,
>excluding victimless crimes, in which Indians were defendants or
>complainants. The thirty-eight pages of notes show an extensive reliance
>upon primary sources. Annotations are at a minimum. The bibliography
>documents impressive archival research conducted with particular attention to
>territorial district court case files and newspapers. Secondary source usage
>is less comprehensive. For example, dissertations and theses were not
>consulted. The result is the author missed a number of works on indigenous
>topics housed in the Pacific Northwest's major universities. At the
>University of Washington's Pacific Northwest Collection, for example, one
>finds a thesis on Leschi's trial and Richard White's thesis, "The Treaty of
>Medicine Creek: Indian-White Relations on Upper Puget Sound, 1830-1880"
>(1972). Similarly, important monographs are missing, such as White's LAND
>USE, ENVIRONMENT, AND SOCIAL CHANGE (1980). One of the most important books
>on Pacific Northwest indigenous legal history, UNCOMMON CONTROVERSY (American
>Friend's Service Committee 1970), was not consulted. Two other examples not
>cited include the classic by Philip Drucker, INDIANS OF THE NORTHWEST COAST
>(1955) and the recent work by Alexandra Harmon, INDIANS IN THE MAKING: ETHNIC
>RELATIONS AND INDIAN IDENTITIES AROUND PUGET SOUND (1998). Several of
>Harmon's essays, however, were considered. Lack of exposure to the
>literature in part reflects the lack of expertise in Native American history
>and Indian law at the University of Chicago where Asher's dissertation was
>completed.
>
> Asher identifies and amplifies three concurrent themes in BEYOND THE
>RESERVATION. First, he explains how the reservation acts as an ideological
>boundary that somehow existed as a legal fiction. Instead there is
>permeability to the reality; most Indians, he argues, were post-reservation.
>Certainly this is so for western Washington and to some degree east of the
>Cascades. Many Indians lived beyond the reservation and interacted within
>the American economy. Having established this concept, Asher is led to make
>several assumptions that have contextual problems. He asserts that "Indians
>who lived off reservations, worked for white employees or married into white
>families did not necessarily highlight their membership in an Indian 'tribe'"
>(p. 5). This allows these Indians to look to American courts. Asher states
>that the indigenous peoples of Washington Territory rarely encountered
>
>Page 167 begins here
>
>federal military repression and ignored the missionaries. Thus, although
>there was resistance to the American presence, there was no collective
>violent struggle that in turn allowed for local economic integration.
>Historians of the Pacific Northwest will quarrel with these assessments.
>
> A second facet to Asher's study describes how settlers and Indians
>alike used the territorial courts. He believes, and this is a strong aspect
>of his monograph, that local laws and courts evolved as the primary mechanism
>regulating the interaction of Indians and non-Indians, especially in the
>Puget Sound region. This occurred because the U. S. government did not have
>the resources to enforce reservation confinement and stabilize the frontier.
>Chaos resulted that encouraged Congress to bestow extensive powers upon
>Indian agents. The abuse of these powers meant that all parties sought
>dispute resolution, which could be found in local courts. By looking at the
>court records, Asher argues, we see the nature of social interactions and
>conflict in a diverse society. In Washington Territory there were over
>25,000 civil cases and over 6,800 criminal cases decided in territorial
>district courts. Of these, 16 civil cases had at least one Indian litigant,
>and 182 criminal cases involved at least one Indian defendant or
>complainant.
>
> Third, Asher finds that Native Americans in the Pacific Northwest
>quickly grasped the substantive power of American legal institutions. This
>may be so, but again this important finding leads to weakened sub-arguments.
>Asher states that the purpose of law was to maintain racial boundaries. He
>needs to consider the fundamental notion that American law has treated
>Indians as a political rather than a racial group. Even if we accept Asher's
>racial legal thesis, he takes the argument a step further. Asher suggests
>that the practical use of the law in Washington Territory by Indians,
>settlers, and federal officials limited the power of law so that law neither
>defined social behavior nor was conditioned by society. This is a fairly
>squishy thesis as theses go, but the evidence he offers in detail in the
>later chapters is conducive to his argument.
>
> During Washington Territory's history, Asher sees two fundamental
>periods governing the relationships between Indians and settlers. From 1853
>to approximately 1870, the immediate post-Civil War era, the emphasis of
>territorial legislators and territorial judges was on excluding Indians from
>the social order. For example, they were denied the right to testify against
>whites in court. However, after 1870 particularly the judiciary concluded
>that American law needed to be extended to cover Indians so that Native
>Americans could be controlled. This in turn fostered and gave voice to a new
>Indian legal consciousness. Indians mobilized to make use of the courts,
>challenged and advocated sophisticated legal doctrines, and allied with
>sympathetic whites to press legal action.
>
> This encapsulates Asher's third theme, that he quite correctly states
>raises important and even vexing questions about sovereignty and ideological
>power. The last twenty years of Washington's territorial era saw local
>courts increasingly extend the reach of American law into Native American
>life. This, Asher postulates, eroded authority structures. Simultaneously,
>individual Indians turned to American law to resolve disputes. They did so,
>again according to Asher, when traditional Native law was either ineffective
>or not available. "The rule of law," states Asher, "was becoming an
>increasingly hegemonic ideology" (p. 16). Borrowing from Antonio
>
>Page 168 begins here
>
>Gramsci, Asher offers the concept that the ruling class, in this instance
>Washington territorial officials, persuaded the oppressed -- Washington's
>indigenous population -- that the existing social order that was evolving
>through the territory's courts was fair and natural. What was evolving was a
>common legal culture. This is a very interesting idea that needs further
>development. Although Asher acknowledges the need to understand Native law
>ways and dispute resolution, and that is essential for this concept to be
>applied, aside from a cursory introduction, indigenous law is infrequently
>seen at play. Unlike CROW DOG'S CASE (1994), where Sidney L. Harring
>explains in detail the dual nature of legal systems at work, Asher does not
>synthesize the obvious duality. To do so, of course, would require extensive
>research on the diverse indigenous law concepts in Washington Territory, but
>only by doing so can this concept be fully developed.
>
> The primary purpose for the writing of BEYOND THE RESERVATION is to
>embellish two dimensions of American legal history that have until recently
>been all too elusive to legal historians. Asher seeks to inject Native
>Americans into the broader themes of American legal history with particular
>attention to interracial relations and the development of legal
>consciousness. That he has done so is both a tribute and a warning. Both
>issues have been raised, often with clarity and directness, but both remain
>for further consideration. The raw data has been thoroughly and thoughtfully
>analyzed, but its placement in the historical context of culture change and
>continuities is not nearly as successful. All of those court cases and all
>of those legal decisions might have been the ratification, redemption, or
>repudiation of indigenous law. For it very well may be, as Seattle so
>ominously spoke in 1853, "There is no death, only a change of worlds"
>(Seattle 1971 [1853]).
>
>REFERENCES:
>
>American Friend's Service Committee. 1970. UNCOMMON CONTROVERSY: FISHING
>RIGHTS OF THE MUCKLESHOOT, PUYALLUP, AND NISQUALLY INDIANS. Seattle:
>University of Washington Press.
>
>Drucker, Philip. 1955. INDIANS OF THE NORTHWEST COAST. Garden City, NY:
>Natural History Press.
>
>Harmon, Alexandra. 1998 INDIANS IN THE MAKING: ETHNIC RELATIONS AND INDIAN
>IDENTITIES AROUND PUGET SOUND. Berkeley: University of California Press.
>
>Harring, Sidney L. 1994. CROW DOG'S CASE: AMERICAN INDIAN SOVEREIGNTY, TRIBAL
>LAW, AND UNITED STATES LAW IN THE NINETEENTH CENTURY. New York: Cambridge
>University Press.
>
>Seattle. 1971 (1853). "The Indians' Night Promises to be Dark." In INDIAN
>ORATORY: FAMOUS SPEECHES BY NOTED INDIAN CHIEFTAINS, ed. W. C. Vanderwerth.
>New York: Ballantine Books.
>
>White, Richard. 1980. LAND USE, ENVIRONMENT, AND SOCIAL CHANGE: THE SHAPING
>OF ISLAND COUNTY, WASHINGTON. Seattle: University of Washington Press.
>
>*****************************************************************
>
>Copyright 2000 by the author, John R. Wunder.
>
>Readers may redistribute this article to other individuals for
>noncommerical use, provided that the text and this notice remain
>intact and unaltered in any way. This article may not be resold,
>reprinted, or redistributed for compensation of any kind without
>prior permission from the author. If you have any questions about
>permissions, please contact Richard A. Brisbin, Jr.,
>Editor, THE LAW AND POLITICS BOOK REVIEW (rbrisbin at wvu.edu),
>Department of Political Science, Box 6317, West Virginia
>University, Morgantown, WV 26506-6317 or by phone at (304) 293-
>3811 ext. 5296 or by fax at (304) 293-8644.
>
>Editorial Board: Charles R. Epp, University of Kansas.
>Roy B. Flemming, Texas A&M University. Nancy Maveety, Tulane University.
>Wayne D. Moore, Virginia Polytechnic Institute and State University.
>Jennifer A. Segal, University of Kentucky.
>
>Previously published reviews may be obtained at the Law & Politics
>Book Review web site: http://www.polsci.wvu.edu/lpbr/
>
>
>------------------------------------------------------------------------
>This discussion list was created to provide research on available Internet
>resources in Native American Law. A second resource recently created is:
>Native American Law, a cyberspace law journal, hosted at
><http://www.indianz.com/NAL/>.
>
>
>Disclaimer: The information posted is not offered as legal advise. You
>should seek the advise of an attorney before relying on any information
>posted.
>
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