The Law of Native Americans, to 1815

Volume I of the Cambridge History of Law in America reaps the advantage of the proliferation of scholarship in legal history, beginning the account of law in America with the very first moments of European colonization and settlement of the North American landmass. It follows those processes across two hundred years to the eventual creation and stabilization of the American republic. The book discusses the place of law in regard to colonization and empire, indigenous peoples, government and jurisdiction, population migrations, economic and commercial activity, religion, the creation of social institutions, and revolutionary politics. American legal history long treated the era of the founding of the republic and the early nineteenth century as the beginning of American law. Volume I disputes that tendency and corrects it. The Cambridge History of Law in America has been made possible by the generous support of the American Bar Foundation.

2008

This publication is in copyright. Subject to statutoty ex~eption and to the provisions of relevant collective licensing agreements. no reproduction of any part may take place without the written permission of Cambridge University Press.

American Indian law review, 1973

In the preface to Law and the American Indian, Professor Price names three disparate audiences for whom the book is meant to be useful: 1) Indian persons and practicing attorneys, as a practical legal research tool; z) law schools, as a coursebook; and 3) colleges and universities, as a legal history of the relationship between Native American peoples and the United States. Although I am a neophite with respect to the legal problems of Native American peoples, have not taught a course dealing with the legal problems of Native American peoples, and am a law professor not a historian, my intent is to comment on the book as a research tool, as a coursebook in law school, and as a history book. Indian persons and practicing attorneys should not look to Law and the American Indian as a quick reference to solve their specific legal problem in Indian law. Law and the American Indian is not a treatise on Indian law that attempts to give answers to all possible problems. The style and arrangement of the book are designed to make the reader aware of and thoughtful about the legal history and legal problems of Native Americans, rather than to provide definite answers to specific legal questions. Cases, statutes, treaties, and other materials are included in the book not because they are authoritative, but because they provoke thought and illustrate the development of the legal relationship between Native American peoples and the United States. Although the book is not a treatise, it is valuable as a research tool by which the Indian person and the practicing attorney can gain entry into Indian law. Professor Price has brought together a wide assortment of materials relating to Indian law. He has arranged these materials into the various topics of Indian law. As a result, an individual Indian or a practicing attorney faced with a legal problem in Indian law need not feel hopelessly lost and afraid to undertake its exploration. Law and the American Indian can be relied upon to provide initial conceptual orientation and signposts for further study through the numerous citations contained in the book. Particularly helpful in this latter regard is the 1z-page bibliography of law review articles relating to Indian affairs.

The Creation of American Common Law, 1850–1880, 2004

This page intentionally left blank The Creation of American Common Law, 1850-1880 Technology, Politics, and the Construction of Citizenship This book is a comparative study of American legal development in the mid-nineteenth century. Focusing on Illinois and Virginia, supported by observations from six additional states, the book traces the crucial formative moment in the development of an American system of common law in northern and southern courts. The process of legal development and the form that the basic analytical categories of American law came to have are explained as the products of different responses to the challenge of new industrial technologies, particularly railroads. The nature of those responses was dictated by the ideologies that accompanied the social, political, and economic orders of the two regions. American common law, ultimately, is found to express an emerging model of citizenship, appropriate to modern conditions. As a result, the process of legal development provides an illuminating perspective on the character of American political thought in a formative period of the nation.

Justice without the State within the State, 2016

Das Erstellen und Weitergeben von Kopien dieses PDFs ist nicht zulässig. 2 The Iroquois, arguably, had a constitution discernible from their oral traditions that rested on five characteristics: minimization of internal conflict; primacy of the Mohawk but with an inclusion of all voices; customary but never rigid rules for the removal of political chiefs; aggression as the desirable quality among additional members of leadership; and »defensive imperialism« that allowed for justifiable wars of annihilation.

A decade ago I contributed to the Annual Survey of American Law my first review of the literature in the field of American legal history.' This year I would like to look back over the past ten with the hope of identifying at least some of the continuities and changes in the literature during that period. Continuities in the Literature.-Many legal historians continue to concentrate on discussions of factual data in their writings about the American legal past. Some legal historians, such as Robert Mennel in Thorns and Thistles: Juvenile Delinquents in the United States, 1825-1940,2 have enlarged our factual knowledge on a variety of narrow topics. 3 Others are still writing books and articles which do little other than cover familiar factual ground. 4 Such works include Alan Reitman's

The American Historical Review, 1978

In a Defiant Stance' is the fifth book John Reid has published in a little more than a decade. 2 He has written two biographies of important nineteeenth century judges, two studies of Cherokee legal institutions, and now this, his first book on the legal context of the American Revolution. These are not insignificant subjects. His learning is immense. And Professor Reid writes with rhetorical grace and a personal voice that are immediately recognizable. Yet he remains a relatively elusive figure in American legal scholarship. Most of his work has been favorably reviewed by the specialists whose interests intersect with his own; but his books have only infrequently been presented as important to the ordinary legal reader. The problem may be that John Reid remains committed to a monographic tradition which maintains that one obligation of scholarship is to study and apprehend specific and limited subjects. He lacks that flair for the "big think," for the tendentious argument or the portentous exclamation which a generation of television watchers might demand from their scholarship, if not from their cereal. It is not that he is a modest man; nor are his books shaped by a narrow and dogmatic belief in the particularity of human experience. Professor Reid's works are graced with comparative insights, with allusions and references to modern analogies, with a concern for the social context of law. But John Reid has never claimed that his work can explain "everything." One senses that he would rather the pleasures of a fox, of knowing some things, than those of a hedgehog, in an age when hedgehogs get all the glory. 4 Professor Reid's new book is a comparative study of the conditions of law and of imperial control'in prerevolutionary Massachusetts Bay and

1977

This is a complex and absorbing book that should be of considerable importance to courts and lawyers as well as to historians. Professor Horwitz opens a realm of common law that few could enter without the assistance of his extraordinarily extensive research. He reviews the state and federal court decisions in which modem property, tort, contract, and commercial law were born; he assembles this great mass of law in lucid chapters that allow the reader to follow the development of case law in individual decisions. Much of this formative law is here available to the ordinary reader for the first time. Horwitz sees a pattern in this law that was first described by Sir Henry Maine: "the movement of the progressive societies has hitherto been a movement from Status to Contract." ' By "status" Maine means the place of an individual in the group-originally the family-that defines his rights and obligations. In primitive societies the family's interests are all, and there is no conception of individual freedom. The slow progress of morality has broken down the old rigid status relationships and created instead a system of voluntary agreements among free individuals. The transition from status to contract occurred with considerable speed in the English-speaking world at the beginning of the nineteenth century. The elaborate social relationships of the eighteenth century were built on the land tenure systems of the Middle Ages; every person's rank was determined in descending order from the King. Dress, manner, and education were all determined by status: Appearances on the streets of London and Paris two centuries ago were manipulated so as to be more precise indicators of social stand-1. H. MAmnr, ANCiENT LAw 100 (Morgan ed. 1917) (1st ed. London 1861).

This study examines the history of Indian-settler legal relations in Indiana, from the state’s pre-territorial period to the late-nineteenth century. Through a variety of interdisciplinary sources and methods, the author constructs a broad narrative on the evolution and co-existence of Native and non-Native customary legal systems in the region, focusing on matters related to marriage, property rights, and testimony. The primary thesis—which emphasizes reciprocally formative relations, rather than persistent conflict—suggests that Indiana’s pre-modern legal past involved an ad hoc yet highly effective process of cultural brokerage, reciprocity and inter-personal accommodation. That the American Indians lost much of their self-governing status following the period of contact is clear; however, a closer look at the ways in which nations historically defined, exercised, asserted, and shared jurisdiction, reveals a more intricate story of influence, authority, and concession. During the French and British colonial and American territorial periods, settler society adjusted to and often accommodated Native concepts of law and justice. Through a complex order of social obligations and community-based enforcement mechanisms, a shared set of rules and jurisdictional practices merged, forming a hybrid system of Indian-settler norms that bound these individuals across the cultural divide. When Indiana entered the Union in 1816, legal pluralism defined jurisdictional practice. However, with the nineteenth-century rise of legal positivism—the idea of law as the sole command of the nation-state, a sovereign entity vested with exclusive authority—territorial jurisdiction and legal uniformity became guiding principles. Many jurists viewed the informal, pre-existing custom-based regulatory structures with contempt. With the shift to a state-centered legal order, lawmakers established strict standards for recognizing the law of the “other,” ultimately rejecting the status of the tribes as equal sovereigns and forcing them to concede jurisdiction to the settler polity.