Double Bind

For nearly two hundred years, American courts and governments have struggled to define the public status of Indians. The futility of this exercise was captured poignantly in Chief Justice John Marshall’s ambiguous 1831 ruling in Cherokee Nation v. Georgia that Indian tribes were “domestic dependent nations,” sovereign and independent in some respects, but wards and subjects in others. It is reflective of the fact that Marshall’s definition still guides American Indian policy that there has always been a moving set of criteria for determining Indian rights—and their limits—in the American body politic. In Deborah Rosen’s study of Indians and state law during the nineteenth century, those criteria included policy makers’ perception of an Indian people’s level of civility or savagery; prevailing racial beliefs; the Indians’ own politicking; and especially the economic and political interests of the Indians’ white neighbors and the politicians who competed for their votes. Rosen’s clearly written and thoroughly documented new book illustrates that these debates played out disproportionately at the state and territorial levels rather than the national one, contrary to the focus of previous historians. Though Rosen pays relatively little attention to Native voices and tactics despite acknowledging their importance, she nevertheless has written the most comprehensive analysis to date of this understudied yet critical topic. She also provides a sobering reminder of the depths of the Indians’ dilemma, for the whites in power who debated Native people’s status were concerned primarily with which level of government had the right to subjugate and dispossess them.

Rosen’s book joins a number of recent studies in emphasizing that “during the century following the end of the Revolutionary War, the states governed American Indians in a variety of ways, belying the common assumption that Indian policy and regulation in the United States was exclusively within the federal government’s domain.” These works, a number of which have focused on post-revolutionary New York, have shed bright new light on questions of how Indians’ land, autonomy, and political status were wrapped up in some of the most pressing issues of the early republic, including the nature of fed-of white landed expansion, eralism, organizing and distributing the benefits defining how race, culture, and political allegiance factored into citizenship.¹ Her study is distinct, however, in examining this development in a number of different contexts, from early republican New York, to antebellum Georgia, Michigan, and Minnesota, to Civil War–era Massachusetts and New Mexico.

As the familiar legal fights over Cherokee Removal have taught, courts often refereed disputes between the states and the federal government over Indian policy. To this, Rosen adds that justices rarely pondered the issue of tribal sovereignty with any seriousness because there was a rough consensus among white Americans that tribal sovereignty was incompatible with their own, particularly at the state level. The rejection of imperium in imperio, at least when it came to Indians, was hardly limited to whites in Georgia. Moreover, Rosen makes the critical point that state courts rather than federal ones played a central role in judging these issues. When they did, their main concern tended to be defending states’ rights versus federal prerogatives. This was particularly the case in the South, where jurisdictional wrangling over Indian policy was proxy for the question of slavery’s future. Yet northern states too, especially the original ones, insisted that they alone had the right to deal with Indians within their borders. They made a number of arguments in support of this position: their colony predecessors had exercised oversight of Indian affairs within their borders under Great Britain; dealing with matters such as criminal behavior involving Indians was primarily a local concern; and the federal government’s jurisdiction over Indians existed only in “Indian country,” which the states held did not fall within their bounds. Rosen shows that states were even more adamant about their sovereignty over Indians when the Indians in question lacked a record...