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

Among historians of the United States and former “white dominions” of the British Empire such as Australia, there is widespread, if not total, recognition that the territorial limits of these nation-states have subsumed indigenous peoples’ land. Arguably the most profound and important insight of Lisa Ford’s Settler Sovereignty: Jurisdiction and Indigenous People in America and Australia, 1788–1836 is the identification of the historical circumstances through which two settler regimes—the British colony of New South Wales (in present-day Australia) and the U.S. state of Georgia—shored up their legitimacy by projecting exclusive common-law jurisdiction over their territorial claims at the expense of indigenous law. Complementing and building on James Belich’s recent survey of Anglophone settler expansion, Replenishing the Earth: The Settler Revolution and the Rise of the Anglo-World, 1783–1939 (Oxford: Oxford University Press, 2009), Ford pushes back against the presumption that indigenous dispossession can be explained purely in terms of global economic and demographic trends. By grounding her work in two local instances of settler expansion, she elucidates an important epistemic shift, arguing that during the 1820s and 1830s both settler regimes turned away from participating in pluralistic methods of intercultural dispute resolution toward unilateral projections of jurisdiction over indigenous people. Only at this moment did the self-proclaimed jurisdictional legitimacy of settler institutions come to be dependent on the complete abrogation of indigenous political and legal sovereignty.

Switching adeptly between Georgia and New South Wales, Ford tracks the parallel processes that ultimately converged in the 1830s to produce this shift. After providing useful background about seventeenth-century Anglophone colonization, Ford begins her main narrative in the late eighteenth century. Utilizing an extensive array of primary source examples, most colorfully with respect to relations between settlers and Creek and Cherokee people in Georgia, she convincingly illuminates the everyday spaces in which people employed syncretic methods of dispute resolution. Settlers and indigenous people thus resolved property disputes and dealt with the aftermath of violent incidents by using an array of intercultural diplomatic protocols and pluralistic practices such as reciprocity and retaliation. Labeling these practices “pluralistic” because they incorporated both indigenous and settler expectations of justice, Ford subsequently tracks how these cultures of pluralism gave way during the 1820s and 1830s to settler-defined territorially based conceptions of sovereignty. Local settlers began to define incidents of indigenous-settler conflict as crime, while the settler executive and judiciaries began to project a new territorial-based understanding of jurisdiction in order to shore up settler sovereignty over the land claimed for the British Crown and the state of Georgia. This process culminated in two foundation cases, the 1830 Tassell case in Georgia, and R. v. Murrell of 1836 in New South Wales; both cases created the common law precedent that settlers could claim jurisdiction over indigenous people deemed to have transgressed settler law on settler-claimed land.

Although leery of the label “comparative,” Ford uses the similarity of these two judicial statements of “perfect settler sovereignty” to justify bringing New South Wales and Georgia within a single historical frame. While noting the marked differences between the slaveholding economy of Georgia and the penal and pastoral economy of New South Wales, Ford nevertheless frames her investigation as a quest to discover how and why, in both locations, circumstances converged to produce “remarkably similar legal declarations” (p. 5). Ford therefore describes her work as “less a comparison than an exploration of continuity between two very unlike places joined by language, institutions of local government, a history of settlement, and cultures of common law” (p. 5). Yet although she dodges the label “comparative,” neither is her work overtly transnational. Indeed, with a narrative firmly situated in two fixed locations, rather than focused on connections created by the flow of people, ideas, and commodities, Settler Sovereignty stands as an interesting counterpoint to the transnational trend in historical writing...