- Settler Sovereignty: Jurisdiction and Indigenous People in America and Australia, 1788–1836
In this compelling comparative history of legal and imperial transformation, Lisa Ford traces the emergence of modern settler sovereignty in the United States and Australia. Ford argues that what we now identify as the legal trinity of nation–statehood—sovereignty, jurisdiction, and territory—was not an automatic effect of Anglophone colonial settlement, nor was it achieved through imperial fiat. Instead, as she explains, "modern" sovereignty was preceded and spurred by a "long-practiced and institutionally entrenched pluralism" in which "indigenous jurisdiction was an acknowledged, alternative legal order" (209–210).
Ford's account captures the subtle features of plural jurisdiction and [End Page 512] the complex relationship between jurisdictional theory and settler practice by looking closely at two exemplary cases in the eighteenth and early nineteenth century—the newly established state of Georgia and the settler colony of New South Wales. Although imperial statutes and charters in the period all claimed sovereignty and jurisdiction over land, Ford demonstrates how, in practice, colonial administrators and settlers operated within "plural jurisdictions" in which indigenous territory and jurisdiction were acknowledged and negotiated with, if often imperfectly and crudely. "Despite the expansive claims to sovereignty and jurisdiction over territory enshrined in colonial charters and legislation," Ford clarifies, "in the early nineteenth century the highest levels of settler government all tempered settler jurisdiction with plural logics of reciprocity, retaliation, and diplomacy" (53). In consequence, indigenous people and communities did receive practical exemption from state, federal, and colonial law before the 1820s in this plural jurisdiction, although to be sure this by no means ensured stable and orderly colonial–indigene relations. As Ford aptly notes, "Between first contact and the early nineteenth century, settlers and indigenous peoples developed their historically distinct affinities with reciprocity and retaliation into a body of syncretic, uneven, and at times mutually misunderstood practices" (36).
While perhaps at first an unexpected choice, Ford's focus on Georgia and New South Wales allows her to explore both continuity and change in settler sovereignty in a rich and nuanced way. Read with and against each other, the two settlements help to illuminate the complex temperaments of a crucial transitional period in settler sovereignty. The similarities are striking: Both settlements were engaged in extensive debates about the relationship between sovereignty, jurisdiction, and the legal status of indigenous acts; both were involved in similar processes of colonization within inherently federal structures of governance; both did not seek to govern through indigenous hierarchies in order to extract commodities; and both used "the same legal arguments at the same time to articulate the most complete iterations of perfect settler sovereignty produced in the Anglophone world" (5). And, in some ways, the differences are even more instructive, for they mark the wide variety that encompassed settler experience in the period. Georgia, after all, was first a colony (1733) settled in territory long contested by the Spanish and English, which then became a new state deeply immersed in the ideologies of race slavery. Georgia also was inhabited by powerful Creek and Cherokee confederacies that inhabited both the center and periphery [End Page 513] of the territory, possessed distinctive and well-recognized constitutional orders, and held sizeable agricultural, slave, and trade economies. By contrast, New South Wales was, in Ford's evocative description, a "nascent convict colony, formed as an open-air prison in 1788" (7). Unlike its American pairing, New South Wales was relatively unmarked and unchallenged by other imperial powers, and also possessed makeshift juridical relations with Aboriginal communities in its early years. However, both settlements, despite these strong differences, eventually came to premise legal integrity as a settler polity on the regulation of indigenous crime.
By the early nineteenth century, a notable shift took place as local governments, colonial courts, and executive commissions in America and Australia increasingly redefined its legal integrity and sovereignty on the subordination and regulation of indigenous people and their law. This transformation, as Ford notes, may have been anxious, precarious, and...