Abstract

http://ssrn.com/abstract=2253047
 
 

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'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


Indiana University-Purdue University Indianapolis; Indiana University Robert H. McKinney School of Law

December 1, 2011


Abstract:     
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.

Number of Pages in PDF File: 391

Keywords: Legal Pluralism, Indiana Legal History, Indian-Settler Relations, Indian Marriage, Property Rights, Testimony, Customary Law, Legal Ethnography

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Date posted: April 17, 2013  

Suggested Citation

Schwier, Ryan T., 'According to the Custom of the Country': Indian Marriage, Property Rights, and Legal Testimony in the Jurisdictional Formation of Indiana Settler Society, 1717-1897 (December 1, 2011). Available at SSRN: http://ssrn.com/abstract=2253047 or http://dx.doi.org/10.2139/ssrn.2253047

Contact Information

Ryan T. Schwier (Contact Author)
Indiana University-Purdue University Indianapolis ( email )
United States
Indiana University Robert H. McKinney School of Law ( email )
Indianapolis, ID 46202
United States

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