Sovereignty, Property, and Law in the US Territories

University of Pennsylvania ScholarlyCommons Publicly Accessible Penn Dissertations 2016 The Adjudicatory State: Sovereignty, Property, and Law in the U.S. Territories, 1783-1802 Gregory Ablavsky Ablavsky University of Pennsylvania, [email protected] Follow this and additional works at: https://repository.upenn.edu/edissertations Part of the Indigenous Studies Commons, Law Commons, and the United States History Commons Recommended Citation Ablavsky, Gregory Ablavsky, "The Adjudicatory State: Sovereignty, Property, and Law in the U.S. Territories, 1783-1802" (2016). Publicly Accessible Penn Dissertations. 1571. https://repository.upenn.edu/edissertations/1571 This paper is posted at ScholarlyCommons. https://repository.upenn.edu/edissertations/1571 For more information, please contact [email protected]. The Adjudicatory State: Sovereignty, Property, and Law in the U.S. Territories, 1783-1802 Abstract “The Adjudicatory State” traces the collision between the federal legal vision for the early American West and the preexisting laws and customs that governed the region. To administer the vast region it obtained in the 1783 Treaty of Paris, the United States created the territorial system, under which federal officials would temporarily govern western “territories” until they achieved statehood. The federal government would also survey and sell the public domain to private purchasers. But these grand plans ran afoul of territorial realities. Both the Northwest Territory, encompassing much of the present-day Midwest, and the Southwest Territory, encompassing present-day Tennessee, were borderlands, places where Native peoples, French settlers, Anglo-American intruders, and land companies contended for sovereignty and property. Instead of crafting a new legal order, federal officials found themselves barraged with preexisting claims. The polyphony of claims played out especially clearly in the contests over land and so-called “Indian affairs.” In the territories, title derived from a complicated blend of Native, French, British, and state law. It fell to federal officialso t understand and translate these plural rights of ownership into the single federal title that would undergird the federal land system. In Indian affairs, federal officials embraced a vision of federal sovereignty in which federal law would serve as the impartial arbiter in conflicts between Native nations and U.S. citizens. Yet early American law encompassed too much ambiguity and localism for centralized authority to succeed. Instead of relying on law, federal officials ultimately attemptedo t secure both peace and allegiance through liberal payments of federal funds to both Natives and U.S. citizens. The federal government’s role in the territories as an adjudicatory state adhered neither to an account that emphasizes federal power’s inexorable westward march nor to a straightforward narrative of federal failure against local customary practice. Through resolving claims, federal government slowly accreted authority, but in ways that defied classification as strong or weak. The process traced here also blurred the sharp dichotomy between informal and formal law, and suggests how the rise of federalism helped channel the plural claims of the borderlands into a framework of dual sovereignty. Degree Type Dissertation Degree Name Doctor of Philosophy (PhD) Graduate Group History First Advisor Daniel K. Richter Subject Categories Indigenous Studies | Law | United States History This dissertation is available at ScholarlyCommons: https://repository.upenn.edu/edissertations/1571 THE ADJUDICATORY STATE: SOVEREIGNTY, PROPERTY, AND LAW IN THE U.S. TERRITORIES, 1783-1802 Gregory Ablavsky A DISSERTATION in History Presented to the Faculties of the University of Pennsylvania in Partial Fulfillment of the Requirements for the Degree of Doctor of Philosophy 2016 Supervisor of Dissertation ______________________ Daniel K. Richter, Roy F. and Jeannette P. Nichols Professor of American History Graduate Group Chairperson ______________________ Benjamin Nathans, Ronald S. Lauder Endowed Term Associate Professor of History Dissertation Committee Sarah Barringer Gordon, Arlin M. Adams Professor of Constitutional Law and Professor of History, University of Pennsylvania Michael Zuckerman, Professor of History Emeritus, University of Pennsylvania To the memory of Lev Ablavsky, who had hoped to see the completion of my doktorskaya dissertatsiya ii Acknowledgments Every work on the history of the public lands seems to feel the need to apologize for the technicality and occasional dryness of the topic. I was fortunate: I found early American land practices so strange, at least to modern eyes, and full of such interesting characters as to obviate much of this tediousness. But I was doubly fortunate in having an exceptional community of advisors and supporters to sustain me when the legislative history of obscure land statutes occasionally bogged me down. The research for this project took me to a wide-ranging array of archives scattered throughout the Midwest and East Coast. For their assistance, I am grateful to the archivists and staff at the American Antiquarian Society; the American Philosophical Society; the Archives of Michigan; the Beinecke Rare Book Library, Yale University; the Connecticut Historical Society; the Burton Historical Collection, Detroit Public Library; the David Library of the American Revolution; the Historical Society of Pennsylvania; the Indiana Historical Society; the Indiana State Archives; the Indiana State Library; the Knox County, Indiana, Public Library; the Knox County, Tennessee, County Archives; Special Collections, University of Tennessee—Knoxville; the Manuscript Division, Library of Congress; the McClung Historical Collection, Knoxville Public Library; the U.S. National Archives; the North Carolina State Archives; the Newberry Library; Special Collections, Northwestern University; the Ohio Historical Society/Ohio History Center; the Rubenstein Library, Duke University; Rauner Special Collections, Dartmouth College; Special Collections, University of Chicago Library; Special Collections, Vanderbilt University. Thanks to Richard King at the Byron R. Lewis Historical iii Collection Library at Vincennes University for identifying and assembling materials for my visit. Thanks, too, to Tom Kanon and the staff at the Tennessee State Library and Archives for their kind welcome and assistance. I am particularly grateful to Linda Showalter and the staff at Special Collections at the Marietta College Library, who opened the collection for me right before the winter holidays. The William Clements Library at the University of Michigan generously hosted me for over a week and funded my research there through a Price Fellowship. My extensive research travel would not have been possible without the financial support of the University of Pennsylvania Law School and Stanford Law School. At Stanford, Ginny Clegg helped facilitate my travel. I am also grateful to the Javits Fellowship, U.S. Department of Education, for financial assistance, and to the McNeil Center of Early American History for providing space to write. I have been fortunate to call home institutions with outstanding libraries and staff. I owe a deep debt of gratitude to Merle Slyhoff at the Biddle Law Library at Penn Law, who did an outstanding job of locating and procuring obscure collections of microfilm and printed volumes. Alvin Dong provided significant help in tracking down the answers to tricky research questions. The staff at Crown Library at Stanford Law School has been a huge help in resolving research issues that have emerged along the way. Sonia Moss in particular has done yeoman’s work in helping me obtain the sources I needed. I am also very appreciative of the work of Adam Mendel, Penn Law ‘17. Adam did incredible work plowing through the Annals of Congress while maintaining a busy schedule as a summer associate. I also learned and benefitted from Adam’s excellent iv research, forthcoming as a published comment, on Natives and the constitutional law of war in the 1790s. Far from a solo effort, this dissertation is the product of conversations, discussions, and support from an outstanding group of friends and mentors. I am grateful to the attendees of the 2007 Zuni Seder, including Joan Lee and Jason Wright. I was fortunate to begin graduate school with a talented group of fellow historians, who have been great friends and supporters along the way: Beatrice Wayne, Cassie Good, and Zain Lakhani have all offered friendship and encouragement. Justin Simard helped push me toward Penn’s dual degree program, and has been a stalwart friend and sounding board ever since. I have also benefitted from the wisdom and friendship of graduate students older and wiser than I, including Brian Rouleau and Matthew Kruer (who beat me to the finish despite my head start). Karen Tani served as both as exemplar and friend in navigating the dual degree, as well as providing recommendations for scholarly literature to examine. I would be remiss if I did not offer special thanks to Sarah Gronningsater, whom I was lucky enough to meet at a seminar in New York, and then even luckier when she came to Philly. She has probably read more of this dissertation than anyone. I cannot overstate how much I owe to her generosity, collegiality, and loyalty. Little did I realize when I started at Penn Law that I was joining such a supportive scholarly community. Cathie Struve and Bill Ewald have been enthusiastic

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