Lisa Ford ‘Settler Sovereignty: Jurisdiction and Indigenous People in America and Australia 1788-1836’
2010 , 210 p & notes (86p)
I’m starting to think that a good gauge for my response to a book is the resounding slap of the book as I close it, and the whispered “Well done!” or “You beauty!” that accompanies it. That’s how I finished Tom Griffiths’ Hunters and Collectors, and it was my response as I finished Lisa Ford’s Settler Sovereignty as well. I’m not alone: obviously the judges of the 2010 NSW Premier’s History Award felt the same way.
I was lent this book an embarrassingly long time ago, and I have been eyeballing it rather guiltily for some time. Any of you who follow this blog chronologically may have noticed a preponderance of reviews of books related to Aborigines in Port Phillip over recent months. I have been writing a paper that looks at Judge Willis and the Aboriginal cases that came before his court, and I kept deferring reading Ford’s book until I’d finished because the 1836 cut-off in the book’s title was too early for the case I was examining. How wrong I was: I would have gained so much from this book had I read it earlier. Ah well.
In this book Ford takes Georgia (in America) and New South Wales as two exemplars of the development of what she calls “perfect settler sovereignty”. By this she means that, in claiming the territory of the indigenous people who were there before them, white settler governments claimed sovereignty and legal jurisdiction over them as well. There’s shades here of Fran in the ABC series The Librarians voicing the same assertion- “Our Country: Our Rules.” This had not always been the case. Both colonies, up until the 1830s, had tolerated plurality through a combination of dependence on native expertise, uncertainty, impotence, silence and ‘leaving them to their own business’. But in both colonies this was to change, at much the same time and based on much the same rationales.
We might raise a quizzical eyebrow at this combination of Georgia and New South Wales. Traditionally Canada, Australia and New Zealand have been linked together as imperial triplets on the basis of their shared relationship with the Colonial Office, especially after the American Revolution sent America off onto a different trajectory. Certainly during Willis’ time, Australian judges were viewed as rather suspect if they referred to American law, and they took every occasion to declare their fidelity to British justice. However, recent work has begun considering American legal conditions alongside those of Canada/Australia/New Zealand e.g. John Weaver’s The Great Land Rush, Peter Karsten’s Between Law and Custom: ‘High’ and ‘Low’ Legal Cultures in the Lands of the British Diaspora and James Belich’s Replenishing the Earth.
In both Georgia and New South Wales, settlers did not seek to govern through indigenous hierarchies (as they did in India), and in both places indigenous people occupied arable or pasture land. Farming did not proceed through the forcible co-option of indigenous labour, although it did run on imported free, indentured or slave labour. But there were differences too: Georgia was surrounded by other powers (Spain, France, the Creek and Cherokee Indians), and Georgia used slavery. There was a multiplicity of treaties in Georgia, and none in New South Wales beyond Batman’s quickly disowned ‘treaty’. And yet, both Georgia and NSW passed similar declarations in 1830 and 1836 that abandoned the legal pluralism that both had exhibited previously, ruling that indigenous violence fell within the jurisdiction of settler courts. They used the same legal arguments at the same time, and it is this historical congruence that Lisa Ford sets out to explore. Her approach is strongly based in legal history and court cases, and this is the lens through which she views the world.
By linking two apparently dissimilar colonies like this, she runs the risk of leaving scholars of one or the other societies bemused. It’s a testament to her writing that, even though the New South Wales cases were far more familiar to me, I feel that I understood the Georgian cases as well and the parallels she was drawing. But was there something particularly special about Georgia and New South Wales, or could she have chosen any other American state and drawn the same connections? I’m not in a position to say. Or, indeed was New South Wales the best Australian example? Henry Reynolds in his review of this book in the Australian Book Review in April 2010 thought that Georgia and Tasmania would have been a better pair for comparison because both societies took up expulsion as a way of solving the ‘problem’ of their indigenous populations. But I think that Ford is looking not so much at the outcomes of legal actions, as the philosophy behind the legal interventions.
For the most part, her chapters are organised thematically- e.g. pluralism as policy (Ch.2); indigenous jurisdiction and spatial order (Ch. 3); legality and lawlessness (Ch. 4) etc. She starts each with a general introduction, examines Georgia, then New South Wales, then draws parallels and distinctions between the two. This pattern is broken at Chapter 6 where the narrative splits into two separate streams, with what she has identified as a seminal case in each colony. Chapter 6 focuses on a case in Georgia while Chapter 7 looks at the case of Lego’me in New South Wales, tried and found guilty for a particularly petty robbery (of a pipe, no less!) as part of a more general clampdown on Aboriginal ‘lawbreaking’. In chapter 8 she then returns to the pattern of intertwined chapters to discuss the way that 1830 in Georgia and 1835 in New South Wales marked a turning point in settler sovereignty. In both colonies, the claim of settler ‘ownership’ of territory was now offered without question as the rationale for the extension of settler law over indigenous people . In relation to New South Wales, she goes on to explore the way that this rationale fed into R v Murrell, which has long been viewed as the touchstone case on which all subsequent legal policy in Australia has been based.
She points out that this shift was not restricted to Georgia and New South Wales alone. Instead it was part of the post-Napoleonic era trend of formalizing or eroding legal pluralism world-wide, including in Europe itself. She recognizes that by ending with the great cases of the 1830s, she is creating “historical closure where there was none historically” (p.204)- and this is exactly the point at which my own work with Judge Willis fits in.
This is a beautifully written book. It has a very disciplined chapter structure- an introduction, an argument (clearly bifurcated into the parallel Georgian and New South Wales scenarios) and succinct and thought provoking conclusions. Fairly conventionally academic, perhaps, but certainly clear. She obviously enjoys language, images and words- she rolls words around, rejoicing in alliteration, repetition and nuance. We see it where she describes the imperial network of bureaucrats as they “moved about the Atlantic, Pacific and Indian Oceans with Vattel and Blackstone under their arms” (p.4), and the settlers as “savvy masters of the discourses and politics of settler jurisdiction…eager for its bounties and wary of its gaze” (p. 84).
I’ll leave the last part to her. She is describing how the flexible pre-1820s plurality that had governed settler/indigenous relations began to chafe against hardening notions of sovereignty:
Again and again, troubled executives and their law officers tried to perfect settler sovereignty by bringing indigenous-settler conflict within the bounds of settler law. Again and again, they tried at the very least to preserve order in their towns and on the roads that connected them. Again and again, they were thwarted by indigenous people, by frontier settlers or by local magistrates…The period described here, then, is one of plurality in transition, when a new vision of perfect sovereignty emerged from long-practiced and institutionally entrenched pluralism. (p. 120)