“ACCORDING TO THE CUSTOM OF THE COUNTRY”: INDIAN MARRIAGE, PROPERTY RIGHTS, AND LEGAL TESTIMONY IN THE JURISDICTIONAL FORMATION OF INDIANA SETTLER SOCIETY, 1717-1897 Ryan T. Schwier Submitted to the faculty of the University Graduate School in partial fulfillment of the requirements for the degree Master of Arts in the Department of History, Indiana University December 2011 Accepted by the Faculty of Indiana University, in partial fulfillment of the requirements for the degree of Master of Arts. ______________________________________ Elizabeth Brand Monroe, Ph.D., J.D., Chair ______________________________________ David J. Bodenhamer, Ph.D. Master’s Thesis Committee ______________________________________ Gerard N. Magliocca, J.D. ii © 2011 Ryan T. Schwier ALL RIGHTS RESERVED iii For Mom, whose commitment to the Golden Rule had a profound impact on my own moral philosophy. iv Acknowledgments This work would not have been possible without the support and encouragement of family, friends, academic advisors, and professional colleagues. First and foremost, I am indebted to my wife Sandra and son Emilio, both of whom sacrificed considerable time and energy in order for me to complete my graduate studies. Without them, I would not have had the clear sense of direction and accomplishment that I have today. Professor Elizabeth Brand Monroe deserves extended commendation for her tireless efforts in reviewing hundreds of pages of drafts. She’s seen this thesis at its worst and at its best and has never refrained from commenting accordingly. Her ability to combine praise with constructive criticism is a quality found only among the most effective of professors and academic advisors. I am also grateful to Professors David Bodenhamer and Gerard Magliocca for their invaluable comments and scholarly insight on the final draft of this thesis. It was a privilege to have written under the direction of such an outstanding committee of legal history scholars. I wish to extend additional thanks to my colleagues at the Ruth Lilly Law Library for contributing to my professional development and to Frank Emmert, Javier Esguevillas, Cemal Yildiz, and Dragomir Cosanici for their friendship and faith in my academic pursuits. v A Note on Terms and Definitions Formal definitions elude the historian. Not only do words and ideas shift in meaning over time, but interpretations and representations of the past entail diverse perspectives as well. Rather than prescribe specific terms, definitions, and concepts here, I elaborate upon their meaning in further detail as this study unfolds. However, because my thesis addresses historical issues involving ethnicity and cultural identity, I use this introductory opportunity to clarify related terms and concepts. Throughout this study I rely on descriptors such as “Native American,” “American Indian,” “tribal,” and “Indigenous,” interchangeably, largely for purposes of narrative style. By employing this lexicon, I recognize not only its colonial derivation and Euro- centric etymology but also the potential danger that broad application poses in obscuring an otherwise rich cultural diversity of Native peoples and polities. Tribes such as the Miami, Shawnee, Delaware, Illini, Potawatomi, Wyandot, Wea, Kickapoo, Piankeshaw, and Anishinaabe, to name only a few, formed extensive village networks throughout today’s midwest region, embodying a plurality of languages, traditions, laws and customs, systems of government, and kinship structures.1 Terminology used to describe peoples of European descent becomes no less difficult to articulate. The flood of settlers that populated the trans-Appalachian west following the War of Independence represented a diversity of English, German, Irish, and American-born cultures. Adding yet another complex layer to this cultural mosaic, Indian-settler relations led to significant shifts in the ethnic composition of the region’s social topography. 1 For a general reference guide on the history and pre-history of Indigenous peoples in Indiana, see Gail Hamlin-Wilson, ed., Encyclopedia of Indiana Indians: Tribes, Nations and People of the Woodlands Areas, 2 vols., St. Clair Shores, Mich.: Somerset, 1998. vi This mixing and blurring of cultural boundaries undermines the common assumption that the world is historically composed of distinct racial or ethnic communities. This worldview, according to Brian Slattery’s “theory of national segmentation,” holds that “humanity is naturally divided into a host of ‘national,’ ‘ethnic,’ or ‘tribal’ groups,” each of which occupies a distinct territory or community and forms, independent of the other, “a more or less uniform whole, united by such factors as ancestry, historical experience, physical characteristics, culture, language, religion, laws, customs, and social and political structures.”2 While these facets—characterizing our ethnic or cultural “roots” so to speak—provide us with a modern sense of identity and belonging, they have never evolved in complete isolation from each other. With this context in mind, terms of generalization remain necessary for purposes of ethnic or cultural distinction, comparison, analysis, and descriptive simplicity. However, by referring specifically to tribes and individuals by name, this study seeks to create a more intimate historical portrait, providing greater insight into the diversity of peoples that played an important role in the historical periods under consideration. Ethical Considerations in American Indian Legal History For many Indigenous peoples, the Euro-centric pursuit of knowledge—the research methods, disciplinary theory, source provenance, narrative composition, and intellectual discourse in general—is linked to Western forms of imperialism and colonialism.3 Until recently, non-Native scholarship has largely substantiated this sentiment. 2 Brian Slattery, “Our Mongrel Selves: Pluralism, Identity and the Nation,” in Ysolde Gendreau, ed., Communautés de Droits/Droits de Communautés, Montreal: Editions Themis, 2003, pp. 88, 97. 3 Linda Tuhiwai Smith, Decolonizing Methodologies: Research and Indigenous Peoples, New York: Zed Books, Ltd., 1999, pp. 1-2. “Western” here is used in the Occidental sense (that of European origin) and should be distinguished from the term “western,” which I use to describe the region or territory west of the Appalachian Mountains, bounded generally by the Mississippi River to the east, the Great Lakes to the vii Modern historians often refer to Frederick Jackson Turner's 1893 frontier thesis as the quintessential paradigm of Indian dispossession narratives.4 Despite Native Americans’ unique role in settler society, Turner’s historical imagination left little room for the Indian perspective in exploring the “significance of the frontier in American history.” 5 Ironically, a fascination with Indigenous culture pervaded the scholarly mind and American Indians were an integral component to western historical writing.6 However, with national expansion came new historical perspectives in which conceptions of chronology and linear progress associated the “uncivilized” state with an oppressive past.7 Today, most non-Native scholars acknowledge the ethical obligations that arise when researching and writing American Indian history from a culturally external perspective.8 Moreover, in recent years, the Native voice has begun to penetrate the north, and the Ohio River to the south (what became known as the Northwest Territory) settled by Euro- Americans during the late-eighteenth/early-nineteenth century. 4 See for example, Robert Utley, The Indian Frontier of the American West, Albuquerque: Univ. of New Mexico Press, 1984; Lee Benson, “The Historian as Mythmaker: Turner and the Closed Frontier,” in David M. Ellis, ed., The Frontier in American Development: Essays in Honor of Paul Wallace Gates, Ithaca: Cornell Univ. Press, 1969, pp. 3-19; and R. David Edmunds, “Native Americans, New Voices: American Indian History, 1895-1995,” American Historical Review, Vol. 100, No. 3 (June, 1995): pp. 717-740. 5 Frederick Jackson Turner, The Significance of the Frontier in American History, Madison: State Historical Society of Wisconsin, 1894. 6 Despite the persistent ethnocentric impulse, few nineteenth-century scholars recognized the cultural biases of having American Indian history written from the non-Native perspective: “Could [Indians] now come up from their graves, and tell the tale,” noted one prominent historian, “Indian history would put on a different garb. and the voice of justice would cry much louder in their behalf.” See Jared Sparks, “Materials for American History,” North American Review, Vol. 23, No. 53 (Oct., 1826), p. 283. 7 The “problem” with American Indian history, according to one twentieth-century scholar, is of “a people, divided into many tribes. who kept no historical records themselves.” “[T]he Indian does not characteristically think in strict historical terms,” the author adds, and “seems also to have little sense of time sequence.” See Stanley Pargellis, “The Problem of American Indian History,” Ethnohistory, Vol. 4, No. 2 (Spring, 1957), pp. 113-114. For a modern critical analysis, see generally Martin Calvin, ed., The American Indian and the Problem of History, New York: Oxford University Press, 1987. For an early twentieth-century legal analysis on this issue, see Ray A. Brown, “The Indian Problem and the Law,” Yale Law Journal, Vol. 39, No. 3 (Jan. 1930): pp. 307-331. 8 American Indian scholar Donald Fixico identifies several of these responsibilities, which