Thread by @ZachariasConn

Good morning from #SHEAR2022! I’m going to do my best to share highlights from the panel “Federal Sovereignty and State Policy: Authority, Law, and Governance in the Early Republic”

First up, @GraceMallon3, postdoc at Oxford, with “Federal Indian Policy and the Problem of the States in the 1790s” drawn from a project that takes an empirical approach to how state-federal relations worked in practice in the early national period

Argues that state governments continued to play a major role in Indian policy beyond the famous examples of Georgia and Tennessee in Removal era, sometimes helping and sometimes hindering fed government. This can teach us about early US federalism more generally.

Highlights moment in 1795 when after a federal treaty with Haudenosaunee the state of NY then negotiated its own treaty, viewed by fed officials like Indian agent Timothy Pickering as an unlawful attempt by state to buy up Native land without federal oversight

Even though he had just served as Supreme Court Chief Justice, new NY governor John Jay defended state’s prerogative to determine its own relations with tribes

The federal government did not really resist. Feds wanted orderly dispossession without undue bloodshed. NY seemed to have control over the situation so feds allowed it, despite Constitution’s language about fed supremacy, fed control over Indian affairs

This set a potentially dangerous precedent for fed government allowing entrenchment of states’ rights position that could cause problems later

Turning now to example of triangular relations between Cherokee, Tennessee, and Adams admin. Federal government, citing recent treaty with Cherokee, threatened to forcibly evict squatters from Cherokee land. TE legislature sent protest to Congress saying this was unconstitutional

War Dept did not agree. TE Governor John Sevier got involved, tried to drive wedge between federal government and Cherokee, attempting to work both Cherokee leaders and War Dept officers

Sevier claimed an authority to judge for himself which federal treaties were legit and which were not, and to disregard the latter. Said that whatever the theoretical division of powers between state and fed government in reality on the ground Indian policy fell to states

As with NY, TE prevailed upon fed government and was allowed to get its way

The federal government in this period was often unable to get its way without significant cooperation from state governments. Assertions of state power were often subtle rather than the famous examples of loud protests like VA & KY Resolutions, and often successful

Next up, @tannerallread of Stanford, with “ ‘Collisions of Rival Sovereignty: Southern State Law Extension Acts and Indian Affairs in the Removal Era”

Southern states passed laws asserting right to uproot Native people which played major material role in settler colonial eliminationist project, articulating a vision of absolute state sovereignty less well known than SC nullification movement but in fact as significant

Ultimately, as in Mallon’s examples, the stages got their way

Passage of State Law Extension Acts began with GA in 1828

Strategies in these states included assertion of state authority over crimes committed by Native people, efforts to extinguish tribes’ corporate identities and turn Natives into individuals squarely under state authority

Argued British authority (built in part through Doctrine of Discovery) over Indians passed to states after the Revolution and did not actually go to federal government with Constitution

Said fed govt couldn’t legitimately use treaty powers in Indian affairs within state boundaries because tribes were not really sovereign. Fed authority only applied to commerce (narrowly defined) and to settler-indigenous relations in federal territories as opposed to states.

Jackson Admin and Congress pass Indian Removal over loud but unsuccessful opposition, showing that in practice 2 of federal government’s 3 branches will support the states’ ambitious policies in Indian Country

Supreme Court under John Marshall famously disagrees, saying tribal polities are distinct communities and only federal government, not states, can manage relations with them. But Marshall’s rulings go unenforced.

This story shows that questions of Indian affairs played major role in development of American federalism. State, federal, and Indigenous sovereignties developed in tandem. Effects of this still with us today.

Now up, Heather Carlquist Walker with “‘No Further Lenity’: The Utah Expedition, Amnesty, and the Limits of Local Sovereignty”

Points to important role of federal government’s amnesty power in development of federal sovereignty. Overlooked by historians in part because use of amnesty comes at end of conflicts like Whiskey Rebellion and Dorr War which we are more likely to study origins of

Focusing on example of federal government’s policies to westward migration by LDS Church, efforts to create a separate State of Deseret

At first under Fillmore Admin the government is conciliatory, filling posts in new Utah Territory Government with a mix of church and non-church figures, including Brigham Young as Territorial Governor

But before long this policy becomes unpopular outside Utah and there are tensions on the ground. Buchanan Admin tries to assert direct federal authority over Utah, launching so-called “Utah War,” featuring newly aggressive officials and even armed confrontation

Unfortunately for federal government the Utah War relatively quickly seems like a mistake/failure. Pres Buchanan turns to amnesty policy as a way to balance conciliation with continued assertion of federal supremacy

Amnesty = I forgive you but you agree that I am the boss, at least in theory. Young formally agreed but said it did not really mean fed government had authority over him

Some scholars have called Young’s words a fig leaf to cover humiliation but Walser says amnesty was a useful political and legal tool for both sides, allowing for both to claim victory with the accompanying political benefits.

Did not actually resolve issues with UT governance on the ground, leaving them to be resolved (or not) later

As part of his remarks @gauthamrao alludes to yesterday’s #SHEAR2022 plenary about the material conditions of scholarly labor, asks scholars further along in their careers to recognize remarkable achievement of early career scholars who conduct successful research in pandemic