Writing Indian Nations: Native Intellectuals and the Politics of Historiography, 1827-1863 (review)

A paradigm shift in Native American Studies, Maureen Konkle's Writing Indian Nationsfocuses on Native agency while attending to treaties and court opinions. Although provocative, its treatment of law, most notably the Supreme Court opinion Cherokee Nation v. Georgia, succumbs to generalizations that dispense with Native resistance. Konkle casts John Marshall as a rhetorician having his cake and eating it too, and as a mouthpiece for the United States (17, 18). Marshall is no doubt the former, but to accuse him of the latter is to assume too much. Konkle criticizes Marshall for making the "double-judgment" to concede Native autonomy while insisting on racial difference, and for resituating Cherokees in anachronistic moments in history (17-18). Her point is well-taken. She fails to cite Marshall, however, suggesting a lack of close reading and reliance on postcolonial talking-points; she also fails to show how Marshall "made use of sympathy … to further ensure the legitimacy of the United States' claim to authority over land"(18). "If the Courts were permitted to indulge their sympathies," Marshall says, "a case better calculated to excite them can surely be imagined" ( Cherokee Nation, 15). The conditional phrase "if the Courts were permitted to indulge their sympathies" implies that courts are not permitted to do so. Rather than employ sympathy, Marshall eschews it.

Cherokee Nationreached the court on a Cherokee motion for a subpoena and an injunction restraining Georgia from enforcing laws within Cherokee territory. Konkle never mentions the motion or the relief Cherokees sought. Her claim that "Cherokees hired William Wirt … to force the Court to come to a decision" implies non-Natives did all the work. However, a bill signed by John Ross, arguing that Cherokees are a distinct state, suggests otherwise. This bill maintains that Cherokees "were the occupants and owners of the territory in which they now reside, before the first approach of the white men of Europe" ( Cherokee Nation, 3). It chronicles U.S.-Cherokee relations, particularly as they pertain to land ownership, and contests Eurocentric rights of discovery whereby explorers claimed entitlement to Indian lands. It highlights the absurdity of these "rights" and almost ridicules explorers for "look[ing] upon the face of that coast without even landing on any part of it" (ibid., 4). The implication: explorers were too cowardly to chance the shoreline but haughty enough to declare themselves masters over it.

Konkle misses an opportunity to show Cherokees appropriating European historical narratives, since she never mentions this bill. Not until the end of her discussion of Cherokee Nationdoes Konkle acknowledge the court's holding that it had no jurisdiction as "Cherokees were neither foreigners nor citizens" (22). She does not expound on this holding except to say, "Despite the importance of Cherokee Nationin succeeding years, the immediate effect of the ruling was only to delay a decision on the status of Native[s]" (21-22). Yet this holding is momentous. Marshall's claim of lack of jurisdiction is bound up with his claim that Indians constitute domestic dependent nations, which is, perhaps, bound up with colonizing ideology.

Konkle never addresses how Marshall "punts" by interpreting Article III, Section II of the Constitution such that the term "domestic dependent nations" appears in dicta. Konkle should note legal rationales for the label "domestic dependent nations" and not rely on trite statements like this: "The chief justice's concept of 'domestic dependent nations' … attempted to reconcile the principles of U.S. government with the necessity of colonial control"(20). Konkle is right about what is happening on a grand scale, but a more scrupulous analysis would attend to what is happening on a micro scale—to what is happening, for instance, to the Cherokees' bill.

This bill asserts that "great progress has been made by the Cherokees in civilization" and that Cherokees "have established a constitution and form of government, the leading features of which they...