Vol. 10 No. 2 (February 2000) pp. 165-168.

BEYOND THE RESERVATION: INDIANS, SETTLERS, AND THE LAW IN WASHINGTON TERRITORY, 1853-1889 by Brad Asher. Norman: University of Oklahoma Press, 1999. 288 pp. Cloth $34.95.

Reviewed by John R. Wunder, Department of History, University of Nebraska-
Lincoln,

"[W]hen the last Red Man shall have perished, and the memory of my tribe shall have become a myth among the White Men, these shores will swarm with the invisible dead of my tribe, and when your children's children think themselves alone in the field, the store, the shop, upon the highway, or in the silence of the pathless woods, they will not be alone. In all the earth there is no place dedicated to solitude." So said Seattle, the Duwamish elder, in his response recorded and translated to a speech given by new Washington Territory Governor Isaac Stevens in 1853. Governor Stevens told Chief Seattle that many whites had come to the Northwest and many more were on their way. Continued Seattle, "At night when the streets of your cities and villages are silent and you think them deserted, they will throng with the returning hosts that once filled them and still love this beautiful land. The White Man will never be alone." Stevens warned that is was important for the Duwamish people to accept American power and American law. Seattle reflected, "Let him be just and deal kindly with my people, for the dead are not powerless. Dead, did I say? There is no death, only a change of worlds" (Seattle 1971 [1853], 102).

Chief Seattle, some have argued, was a solemn seer of the future. He had an inkling of his namesake city before anyone else did, and he understood the terrible cost of this huge migration to the land and to his people. Still others have found Seattle's words to be uncomfortable and too accommodating. They argue he seemed to accept his fate and that of his people without resistance and with a stoicism that predicated defeat and loss of identity.

Remember his words - "There is no death, only a change of worlds." Before he died in 1866 at the estimated age of eighty years, Seattle had lived over thirty years as a converted Catholic, and in 1855 he signed the Point Elliott Treaty. He had witnessed life in his homeland beyond the reservation, or to use another phrase, "beyond the pale." What Seattle may not have foreseen was the strength of his people and his indigenous neighbors and their survival to a twenty-first century world without solitude.

Part of that story of survival is rooted in the relationship of indigenous peoples to the historical evolution of American legal institutions over their land and their persons. This is an on-going process that has taken many different turns. Often these relationships have grown out of legislation or legal disputes that have directly involved Native Americans and their Pacific Northwest neighbors. The story of those first relationships, that of the collaboration and clash of law-ways for tribal
peoples and American settlers, and the United States government's imposition of legal institutions in Washington Territory is the subject

Page 166 begins here

of Brad Asher's BEYOND THE RESERVATION.

This book, a thoughtfully revised dissertation, is divided into nine chapters, including an introduction and conclusion. The introduction is particularly important because it explains the author's approach to this subject and offers a sophisticated discussion of Indian law and legal theory. The next seven chapters are each built around a particular territorial district court case. These cases are analyzed in detail, and they are used to highlight a broader discussion of reservation policy, territorial law, racial identity, American and indigenous legal cultures, and Indian legal consciousness. Of note are chapters six and seven. Here the author hits his
stride and explains a number of new concepts that involve how Indians made use of and were caught up in nineteenth-century American legal institutions. The conclusion offers a brief summary.

This book also includes an appendix, endnotes, and a bibliography. The appendix features three tables of criminal cases from the territorial period, excluding victimless crimes, in which Indians were defendants or complainants. The thirty-eight pages of notes show an extensive reliance upon primary sources. Annotations are at a minimum. The bibliography documents impressive archival research conducted with particular attention to territorial district court case files and newspapers. Secondary source usage is less comprehensive. For example, dissertations and theses were not consulted. The result is the author missed a number of works on indigenous topics housed in the Pacific Northwest's major universities. At the University of Washington's Pacific Northwest Collection, for example, one finds a thesis on Leschi's trial and Richard White's thesis, "The Treaty of Medicine Creek: Indian-White Relations on Upper Puget Sound, 1830-1880" (1972). Similarly, important monographs are missing, such as White's LAND USE, ENVIRONMENT, AND SOCIAL CHANGE (1980). One of the most important books on Pacific Northwest indigenous legal history, UNCOMMON CONTROVERSY (American Friend's Service Committee 1970), was not consulted. Two other examples not cited include the classic by Philip Drucker, INDIANS OF THE NORTHWEST COAST (1955) and the recent work by Alexandra Harmon, INDIANS IN THE MAKING: ETHNIC RELATIONS AND INDIAN IDENTITIES AROUND PUGET SOUND (1998). Several of Harmon's essays, however, were considered. Lack of exposure to the literature in part reflects the lack of expertise in Native American history and Indian law at the University of Chicago where Asher's dissertation was completed.

Asher identifies and amplifies three concurrent themes in BEYOND THE RESERVATION. First, he explains how the reservation acts as an ideological boundary that somehow existed as a legal fiction. Instead there is permeability to the reality; most Indians, he argues, were post-reservation. Certainly this is so for western Washington and to some degree east of the Cascades. Many Indians lived beyond the reservation and interacted within the American economy. Having established this concept, Asher is led to make several assumptions that have contextual problems. He asserts that "Indians who lived off reservations, worked for white employees or married into white families did not necessarily highlight their membership in an Indian 'tribe'" (p. 5). This allows these Indians to look to American courts. Asher states that the indigenous peoples of Washington Territory rarely encountered

Page 167 begins here

federal military repression and ignored the missionaries. Thus, although there was resistance to the American presence, there was no collective violent struggle that in turn allowed for local economic integration. Historians of the Pacific Northwest will quarrel with these assessments.

A second facet to Asher's study describes how settlers and Indians alike used the territorial courts. He believes, and this is a strong aspect of his monograph, that local laws and courts evolved as the primary mechanism regulating the interaction of Indians and non-Indians, especially in the Puget Sound region. This occurred because the U. S. government did not have the resources to enforce reservation confinement and stabilize the frontier. Chaos resulted that encouraged Congress to bestow extensive powers upon Indian agents. The abuse of these powers meant that all parties sought dispute resolution, which could be found in local courts. By looking at the court records, Asher argues, we see the nature of social interactions and conflict in a diverse society. In Washington Territory there were over
25,000 civil cases and over 6,800 criminal cases decided in territorial district courts. Of these, 16 civil cases had at least one Indian litigant, and 182 criminal cases involved at least one Indian defendant or complainant.

Third, Asher finds that Native Americans in the Pacific Northwest quickly grasped the substantive power of American legal institutions. This may be so, but again this important finding leads to weakened sub-arguments. Asher states that the purpose of law was to maintain racial boundaries. He needs to consider the fundamental notion that American law has treated Indians as a political rather than a racial group. Even if we accept Asher's racial legal thesis, he takes the argument a step further. Asher suggests that the practical use of the law in Washington Territory by Indians, settlers, and federal officials limited the power of law so that law neither defined social behavior nor was conditioned by society. This is a fairly squishy thesis as theses go, but the evidence he offers in detail in the later chapters is conducive to his argument.

During Washington Territory's history, Asher sees two fundamental periods governing the relationships between Indians and settlers. From 1853 to approximately 1870, the immediate post-Civil War era, the emphasis of territorial legislators and territorial judges was on excluding Indians from the social order. For example, they were denied the right to testify against whites in court. However, after 1870 particularly the judiciary concluded that American law needed to be extended to cover Indians so that Native Americans could be controlled. This in turn fostered and gave voice to a new Indian legal consciousness. Indians mobilized to make use of the courts, challenged and advocated sophisticated legal doctrines, and allied with sympathetic whites to press legal action.

This encapsulates Asher's third theme, that he quite correctly states raises important and even vexing questions about sovereignty and ideologicalpower. The last twenty years of Washington's territorial era saw local courts increasingly extend the reach of American law into Native American life. This, Asher postulates, eroded authority structures. Simultaneously, individual Indians turned to American law to resolve disputes. They did so, again according to Asher, when traditional Native law was either ineffective or not available. "The rule of law," states Asher, "was becoming an increasingly hegemonic ideology" (p. 16). Borrowing from Antonio

Page 168 begins here

Gramsci, Asher offers the concept that the ruling class, in this instance Washington territorial officials, persuaded the oppressed -- Washington's indigenous population -- that the existing social order that was evolving through the territory's courts was fair and natural. What was evolving was a common legal culture. This is a very interesting idea that needs further development. Although Asher acknowledges the need to understand Native law ways and dispute resolution, and that is essential for this concept to be applied, aside from a cursory introduction, indigenous law is infrequently seen at play. Unlike CROW DOG'S CASE (1994), where Sidney L. Harring explains in detail the dual nature of legal systems at work, Asher does not synthesize the obvious duality. To do so, of course, would require extensive research on the diverse indigenous law concepts in Washington Territory, but only by doing so can this concept be fully developed.

The primary purpose for the writing of BEYOND THE RESERVATION is to embellish two dimensions of American legal history that have until recently been all too elusive to legal historians. Asher seeks to inject Native Americans into the broader themes of American legal history with particular attention to interracial relations and the development of legal consciousness. That he has done so is both a tribute and a warning. Both issues have been raised, often with clarity and directness, but both remain for further consideration. The raw data has been thoroughly and thoughtfully analyzed, but its placement in the historical context of culture change and continuities is not nearly as successful. All of those court cases and all of those legal decisions might have been the ratification, redemption, or repudiation of indigenous law. For it very well may be, as Seattle so ominously spoke in 1853, "There is no death, only a change of worlds" (Seattle 1971 [1853]).

REFERENCES:

American Friend's Service Committee. 1970. UNCOMMON CONTROVERSY: FISHING
RIGHTS OF THE MUCKLESHOOT, PUYALLUP, AND NISQUALLY INDIANS. Seattle:
University of Washington Press.

Drucker, Philip. 1955. INDIANS OF THE NORTHWEST COAST. Garden City, NY:
Natural History Press.

Harmon, Alexandra. 1998 INDIANS IN THE MAKING: ETHNIC RELATIONS AND INDIAN
IDENTITIES AROUND PUGET SOUND. Berkeley: University of California Press.

Harring, Sidney L. 1994. CROW DOG'S CASE: AMERICAN INDIAN SOVEREIGNTY, TRIBAL
LAW, AND UNITED STATES LAW IN THE NINETEENTH CENTURY. New York: Cambridge
University Press.

Seattle. 1971 (1853). "The Indians' Night Promises to be Dark." In INDIAN
ORATORY: FAMOUS SPEECHES BY NOTED INDIAN CHIEFTAINS, ed. W. C. Vanderwerth.
New York: Ballantine Books.

White, Richard. 1980. LAND USE, ENVIRONMENT, AND SOCIAL CHANGE: THE SHAPING
OF ISLAND COUNTY, WASHINGTON. Seattle: University of Washington Press.