Settler Sovereignty: Jurisdiction and Indigenous People in America and Australia, 1788-1836 (review)

Lisa Ford offers a provocative new approach to the history of territorial expansion and the dispossession of indigenous peoples in Georgia and the British colony of New South Wales in the early decades of the nineteenth century. The Georgia story, culminating in Indian Removal, is familiar to Americanists: avaricious, land-hungry settlers ruthlessly displaced the Cherokee, Creeks, and other "civilized" nations with no regard to law or justice. Ford's comparative focus does not temper that judgment. Indeed, what she calls "settler sovereignty"—"the conflation of sovereignty, territory, and jurisdiction"—was "uniquely destructive of indigenous rights" (p. 2). But the assault on indigenous rights was not simply an American story and, more significantly, it is a story about the development of law, not its neglect or repudiation.

Georgia and New South Wales were very different places, representing "two ends of the spectrum of Anglophone settler experience," one a semisovereign state in the recently established American federal union, the other a notorious dumping ground for British convicts where free settlers enjoyed few rights (p. 209). Yet the same processes took place in both places, despite a long history of diplomacy in British North America and the United States that supposedly secured Indian rights and the conspicuous absence of treaties with aboriginal Australians. Ford shows us that a plurality of effective, de facto jurisdictions coexisted in both societies before the 1820s when they began "at the same time, to juridically erase their indigenous people in order to craft a perfect settler sovereignty" (p. 210). From a global perspective, the outcomes—Indian Removal in the United States and the Murrell decision of 1836, declaring that "Australian Aborigines had no sovereignty, no jurisdiction, and no law"—might seem inevitable, the dark counterpoint to what Americans have called "Manifest Destiny" (p. 175). Ford's great contribution, however, is to reconstruct the emerging logic of settler sovereignty—a conception of "jurisdiction over space, not subjects"—that made legal pluralism, or imperium in imperio, "an intolerable burden" (p. 182, 142). Insecure settlers drove these changes, as Ford's ground-level view shows, emphasizing their vulnerability in "narratives of peril" as they enlisted support from state, federal, and imperial authorities (p. 103). Demanding that indigenous peoples be subjected to a unitary legal regime over which, through magistracy and militias, they exercised crucial local control, settlers enlisted their respective states in the project of dispossession. The exercise of territorial sovereignty thus became the critically defining test of state capacity on the settler periphery, despite the interest and inclination of more or less distant metropolitan authorities—in Washington, D.C., or London—to sustain a pluralistic regime that preserved the peace on imperial frontiers.

Far from being lawless, Ford convincingly argues, the early frontier was defined by a theoretically incoherent but more or less complementary plurality of legal regimes. But weak and vulnerable settler societies eventually enlisted the capacity of the states of central governments to dispossess native peoples. The relatively benign intentions of federal or imperial authorities toward indigenous clients were nullified on the ground as settlers sought to resolve jurisdictional conflicts and consolidate their claims. American historians might be inclined to impute Indian Removal to a weak federal state and representative institutions that were responsive to settler interests. But Ford shows how the transformation of legal regimes bridged center and periphery—even in the absence of republican institutions—and enabled settler societies to "erase" indigenous peoples. In doing so, she gives us new insight into the nature of state power as pressures from the periphery eliminated the "space for legal pluralism" that secured indigenous rights and sustained jurisdictional diversity in the Middle Ground (p. 187). Settler Sovereignty is a welcome addition to the literature of state-building and legal development, offering a fresh comparative and global perspective on local—and not so "exceptional"—developments in the early United States.