Americans Without Law: The Racial Boundaries of Citizenship

1. Laws of Development, Laws of Land

Laws of Development, Laws of Land Although ethno-legal rhetoric has deep roots in the Western tradition, the discourse of juridical racialism formed in the United States only in the wake of the Civil War, when a confluence of historical developments created the ground for its emergence. Most important, the decades following the war saw the growing professionalization of a range of scientific and social scientific fields, and for anthropology, in particular, they marked what Margaret Mead called the “golden age” or “classic period ” of the discipline.1 Anthropologists active during these years helped steer their field away from its amateur roots in travel writing and collecting and toward its future as a methodologically coherent, systematic body of knowledge created by professionals who limited their ranks through formal standards of entry. These also were crucial years in American state modernization, as evidenced by the civil service reform movement and the Pendleton Act of 1883.2 Seeking to rationalize the expanding apparatus of the state, a broad class of elites sought to replace the spoils system based on party patronage with more neutral, meritocratic procedures for the staffing of government bureaucracies. Finally, these years marked the start of the so-called Gilded Age, when modern, expansive, and extractive market relations lay the foundation for the full-scale corporate capitalism of the twentieth century and modern consumer society.3 Scientific professionalization , state modernization, modern economic development— within this network of phenomena, ethno-legal rhetoric assumed a qualitatively new importance, complexity, and authority. American Indians took central stage in each of these developments— those of the professions, the state, and political economy—and therefore in the emergence of juridical racialism. For the close of the Civil War and 1 22 the presidency of Ulysses S. Grant inaugurated the “assimilationist era” of federal Indian policy, when the national government sought to force Indians to model their lives on Euro-American standards of behavior, especially by encouraging them to become independent agriculturalists.4 In this context, the newly professional social sciences turned an eager eye toward Indian myths, kinship structures, forms of government, and material culture; indeed, American anthropologists first developed their comprehensive theories of society and built their professional discipline with the raw material they found in the world of native peoples. Institutionally , moreover, the late-nineteenth century witnessed the marked expansion and modernization of the Bureau of Indian Affairs, particularly with the creation of the Board of Indian Commissioners in 1869 and the increasingly specialized and expert approach taken to Indian education beginning in the early 1880s.5 Finally, as an economic matter, the assimilationist era saw the coerced forfeiture of Indian land for government and private purposes. The assimilationist effort to destroy collective regimes of property ownership and the centrality of the tribe to Indian identity grew from the drive toward national economic expansion.6 In the following chapter, I consider the role juridical racialism played in the assimilationist era, focusing specifically on the period between 1883 and 1887. During these years, a legal exchange took place between Congress and the Supreme Court, the final outcome of which was the Dawes General Allotment Act, which subdivided communal Indian lands and allotted them to individual owners.7 The Court’s contributions to this dialogue were its decisions in Ex parte Crow Dog (1883) and United States v. Kagama (1886), two cases concerning the extension of federal jurisdiction over certain forms of Indian crime.8 Together, Crow Dog and Kagama “clear[ed] the way” for the Dawes Act by forging the Indian plenary power doctrine, which grants Congress nearly complete control over the management of Indian affairs.9 I begin my analysis, however, not with these legislative and judicial actions but with the life and work of John Wesley Powell, naturalist, geographer, and founder of the Bureau of American Ethnology. Powell constructed a developmentalist juridical racialism that drew on the anthropological writings of Lewis Henry Morgan and that would later form the conceptual and rhetorical anchor of Crow Dog and Kagama. In my analysis of Powell’s work, I thus consider how a developmentalist view of race and law became constitutive of the law itself. Laws of Development, Laws of Land | 23 John Wesley Powell and the Evolution of Property From the presidency of Andrew Jackson until roughly the start of the 1870s, U.S. policy toward native peoples centered on moving Indians west of the Mississippi, driving them onto reservations with...