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Nullifying Settler Democracy: William Apess and the Paradox of Settler Sovereignty

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Polity

Abstract

This essay examines the concept of “Indian nullification” in the political writings of William Apess by situating his defense of native self-determination in the context of debates about the legitimacy of nullification in U.S. constitutionalism. It illustrates how Indian nullification operates, not as a feature of constitutional design asserting minority rights over the tyranny of the majority, but rather as a rhetorical form of political contestation exposing the constitutive exclusions of American settler democracy. Apess illuminates how constitutional ideals of popular sovereignty cohere around regimes of settler colonialism and indigenous dispossession, highlighting the paradox of settler sovereignty that provides the basis for American democracy. Indian nullification is not a simple demand that the boundaries of liberal citizenship be expanded to include Indians. It is a way of narrating and rhetorically representing the forms of settler conquest that establish the material and conceptual foundation of popular self-rule for white settlers.

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Notes

  1. Joshua Foa Dienstag, “A Storied Shooting: Liberty Valance and the Paradox of Sovereignty,” Political Theory 40 (2012): 290–318 at 291; Bonnie Honig, “Between Decision and Deliberation: Political Paradox in Democratic Theory,” American Political Science Review 101 (2007): 1–17; William Connolly, The Ethos of Pluralization (Minneapolis: University of Minnesota Press, 1995); Chantal Mouffe, The Democratic Paradox (New York: Verso, 2000); Paulina Ochoa Espejo, “Paradoxes of Popular Sovereignty: A View from Spanish America,” The Journal of Politics, 74 (2012): 1053–65.

  2. One exception is Joan Cocks, On Sovereignty and Other Political Delusions (London: Bloomsbury, 2014).

  3. Exceptions here include an emerging body of work in critical indigenous theory: Joanne Barker Native Acts: Law, Recognition, and Cultural Authenticity (Durham, N.C.: Duke University Press, 2011); Kevin Bruyneel, The Third Space of Sovereignty: The Postcolonial Politics of U.S.-Indigenous Relations (Minneapolis: University of Minnesota Press, 2007); Jodi Byrd, The Transit of Empire: Indigenous Critiques of Colonialism (Minneapolis: University of Minnesota Press, 2011); Glen Coulthard, Red Skin, White Masks: Rejecting the Colonial Politics of Recognition (Minneapolis: University of Minnesota Press, 2014); Audra Simpson, Mohawk Interruptus: Political Life across the Borders of Settler States (Durham, N.C.: Duke University Press, 2014); and Dale Turner, This Is Not a Peace Pipe: Towards a Critical Indigenous Philosophy (Toronto: University of Toronto Press, 2006). Diego Von Vacano’s recent review vividly shows that comparative political theory has largely failed to engage indigenous political thinkers; see “The Scope of Comparative Political Theory,” Annual Review of Political Science, 18 (2015): 1–16. The fact that there is an established tradition of indigenous political thought that has long examined the cross-cultural basis of politics makes this all the more troubling. See Oren Lyons and John Mohawk, Exiled in the Land of the Free: Democracy, Indian Nations, and the U.S. Constitution (Santa Fe, N.M.: Clear Light, 1992); Donald Grinde and Bruce Johansen, Exemplar of Liberty: Native America and the Evolution of Democracy (Los Angeles American Indian Studies Center, University of California, Los Angeles, 1991); and Ward Churchill, Marxism and Native Americans (Boston: South End Press, 1999).

  4. Of course, this is not to say that “the paradox of settler sovereignty” is solely an historical problem that does not persist into the present. If we look at the contemporary politics of the Keystone Pipeline, for instance, we see that the continued efforts of indigenous peoples to contest settler state sovereignty involve similar forms of anticolonial contestation.

  5. David J. Carlson, Sovereign Selves: American Indian Autobiography and the Law (Urbana: University of Illinois Press, 2006), 106. Michael Shapiro similarly states that Apess “urges white Americans to apply their principles equally to Indians”; Deforming American Political Thought: Ethnicity, Facticity, and Genre (Lexington: University Press of Kentucky, 2006), 7.

  6. Michel Foucault, Security, Territory, and Population (New York: Palgrave Picador, 2009). Also see Robert Nichols, “Of First and Last Men: Contract and Colonial Historicality in Foucault,” in The Ends of History: Questioning the Stakes of Historical Reason, ed. Amy Swiffen and Joshua Nichols (New York: Routledge, 2013), 64–83.

  7. Jacques Rancière, “Ten Theses on Politics,” Theory and Event 5 (2001): 22–24. My use of Rancière in this way is deeply indebted to Jason Frank, Constituent Moments: Enacting the People in Post-Revolutionary America (Durham, N.C.: Duke University Press, 2009).

  8. Robert Nichols, “Contract and Usurpation: Enfranchisement and Racial Governance in Settler-Colonial Contexts,” in Theorizing Native Studies, ed. Audra Simpson and Andrea Smith (Durham, N.C.: Duke University Press, 2014), 99–121.

  9. Mouffe, The Democratic Paradox, 4 (see note 1 above).

  10. Caroline Elkins and Susan Pedersen, Introduction to Settler Colonialism in the Twentieth Century (New York: Routledge, 2005), 4.

  11. Fanon goes on, “for it is the settler who has brought the native into existence and who perpetuates his existence. The settler owes the fact of his very existence…to the colonial system.” My essay extrapolates this point to say that the political subjectivity of settlers – marked by notions of equality and popular sovereignty – are similarly produced through practices of settler conquest; Franz Fanon, Wretched of the Earth (New York: Grove Press, 1965), 36.

  12. The present article significantly moves beyond the analysis provided by William Connolly, which focuses on a hypothetical encounter between Thoreau and Apess in order to foreground how an ethical sensibility of “critical responsiveness” might emerge out of the colonial politics of the period; Connolly, The Ethos of Pluralization, 175–78 (see note 1 above). Connolly’s points are mildly productive, but his cursory treatment of Apess lacks systematic analysis.

  13. Donald Nielsen “The Mashpee Indian Revolt of 1833,” New England Quarterly 58 (1985): 400–420.

  14. Jack Campisi, The Mashpee Indians (Syracuse, N.Y.: Syracuse University Press, 1990), 82–84.

  15. Ibid., 86–91. On Locke’s argument that uncultivated waste land justified colonial expropriation, see Barbara Arneil, John Locke and America: The Defence of English Colonialism (Oxford, U.K.: Oxford University Press, 1996).

  16. William Apess, “Indian Nullification,” in On Our Own Ground: The Complete Writings of William Apess, a Pequot, ed. Barry O’Connell (Amherst: University of Massachusetts Press, 1992), 169–73, 175–79.

  17. Ibid., 175.

  18. Ibid., 179.

  19. Ibid., 180–84.

  20. Maureen Konkle, Writing Indian Nations: Native Intellectuals and the Politics of Historiography, 1827–1863 (Chapel Hill: University of North Carolina Press, 2004).

  21. Barry O’Connell, Introduction to Apess, “Indian Nullification,” 164 (see note16 above).

  22. “Indian Nullification,” On Our Own Ground, 167 (see note 16 above).

  23. Ibid., 195.

  24. Ibid., 166.

  25. Sharon Korman, The Right of Conquest: The Acquisition of Territory by Force in International Law and Practice (Oxford, U.K.: Oxford University Press, 1996), 8–10.

  26. Yves Winter, “Conquest,” Political Concepts: A Critical Lexicon, Vol. I (2011), at http://www.politicalconcepts.org/2011/conqtermempireuest.

  27. Carol Pateman, “The Settler Contract,” in Contract and Domination, ed. Pateman and Charles Mills (Malden, Mass.: Polity Press, 2007). Charles Mills also writes of the “white settler state”: “the establishment of society thus implies the denial that a society already existed”; The Racial Contract (Ithaca, N.Y.: Cornell University Press, 1997), 13. I also draw here on the work of Lisa Ford, who argues that the “moment of settler sovereignty” emerged when “the legal obliteration of indigenous customary law became the litmus test of settler statehood.” Settler sovereignty arose when settlers destroyed aboriginal customary law by imposing territorial jurisdiction on native peoples; Settler Sovereignty: Jurisdiction and Indigenous People in America and Australia, 1788–1836 (Cambridge, Mass.: Harvard University Press, 2010), 2.

  28. On the “paradox of conquest,” see Winter, “Conquest” (see note 26 above).

  29. Daniel Webster, “First Settlement of New England,” in The Works of Daniel Webster, Vol. 1, ed. Edward Everett (Boston: Little & Brown, 1851).

  30. Ibid., 7.

  31. Ibid., 20–21.

  32. Ibid., 22, 35.

  33. Webster, “The Bunker Hill Monument,” Works of Daniel Webster, Vol. I, 77 (see note 29 above).

  34. Jill Lepore, The Name of War: King Philip’s War and the Origins of American Identity (New York: Knopf, 1998).

  35. Thomas Jefferson, “Draft of the Kentucky Resolutions;” in Liberty and Order: The First American Party Struggle, ed. Lance Banning (Indianapolis, Ind.: Liberty Fund Press, 2004), 234–35.

  36. John Calhoun, “Exposition and Protest,” in Union and Liberty: The Political Philosophy of John C. Calhoun, ed. Ross M. Lence (Indianapolis, Ind.: Liberty Fund Press, 1993), 350.

  37. Webster, “Speech on the Force Bill,” in Works of Daniel Webster, Vol. 3, 453 (see note 29 above).

  38. President Jackson’s “Proclamation Regarding Nullification, December 10, 1832.” Available at the Yale Avalon Project, at http://avalon.law.yale.edu/19th_century/jack01.asp.

  39. Calhoun, “Exposition and Protest,” 340 (see note 36 above).

  40. Richard Latner, “The Nullification Crisis and Republican Subversion,” Journal of Southern History, 43 (1977): 30. Also see David Ericson, “The Nullification Crisis, American Republicanism, and the Force Bill Debate,” Journal of Southern History, 61 (1995): 249–70.

  41. Webster, “Speech on the Force Bill,” 486 (see note 37 above).

  42. Calhoun, “Speech on the Force Bill,” in Union and Liberty: The Political Philosophy of John C. Calhoun, 431 (see note 36 above).

  43. On the distinctions between Jackson and Webster, see Richard Ellis, The Union at Risk: Jacksonian Democracy, States’ Rights, and the Nullification Crisis (Oxford, U.K.: Oxford University Press, 1987).

  44. Jefferson, “Draft of the Kentucky Resolutions,” 234–35 (see note 34 above).

  45. Vicki Hsueh, Hybrid Constitutions: Challenging Legacies of Law, Privilege, and Culture in Colonial North America (Durham, N.C.: Duke University Press, 2010), 4, 10.

  46. Pateman, “The Settler Contract,” Contract and Domination (see note 27 above). Apess did not frame his efforts in terms of the assertion of “native sovereignty.” As a concept that originated in European legal discourse to denote complete territorial control, Alfred notes that the term “sovereignty” does not adequately capture the diverse and different ways of conceptualizing the relationship between land and power in native modes of governance; Taiaiake Alfred, Peace, Power, Righteousness: An Indigenous Manifesto (Oxford, U.K.: Oxford University Press, 1999), 55–72. Nevertheless, I retain the term not as a way of characterizing the positive features of native systems of governance but as a categorical stand-in denoting those modes of governance that settler sovereignty seeks to eliminate.

  47. Apess, “Indian Nullification,” 175, emphasis added.

  48. Ibid., 179–80.

  49. Ibid., 204.

  50. Ibid.,183.

  51. Priscilla Wald, “Terms of Assimilation: Legislating Subjectivity in the Emerging Nation,” boundary 2, Volume 19 (1992): 77–104, at 86.

  52. Jacques Rancière, Disagreement: Politics and Philosophy (Minneapolis: University of Minnesota Press, 2004), 25.

  53. Apess, “A Son of the Forest,” in On Our Own Ground, 4 (see note 16 above).

  54. Russell M. Peters, The Wampanoags of Mashpee (Somerville, Mass.: Media Action, Indian Spiritual and Cultural Training Center, 1987), 20.

  55. Campisi, The Mashpee Indians, 82 (see note 14 above).

  56. Patrick Wolfe, “Settler Colonialism and the Elimination of the Native,” Journal of Genocide Research 8 (2006): 387–409, at 388.

  57. Apess, “Indian Nullification,” 212–14 (see note 16 above).

  58. Michael Paul Rogin, Fathers and Children: Andrew Jackson and the Subjugation of the American Indian (New York: Vintage Books, 1976).

  59. Rancière, Disagreement, 25–26 (see note 52 above).

  60. Fred Lee, “The Racial Constitution of the Public: Four Exercises in Historicizing the American Polity,” Ph.D. dissertation, University of California, Los Angeles, 2010, chapter 3.

  61. Apess, “Indian Nullification,” 190 (see note 16 above).

  62. Ibid., 198; Gayatri Spivak, A Critique of Postcolonial Reason (Cambridge, Mass.: Harvard University Press, 1999), 284.

  63. In a similar instance, Apess contends, “But the crimes committed against our race cannot be enumerated here below. They will each and all, however, be judged at the bar of God, and it must be the comfort of the poor and oppressed, who cry for justice, and find it not, that there is one who sees and knows and will do right”; see “Indian Nullification,” 192, 197–98 (see note 16 above).

  64. Rancière, “Ten Theses on Politics” (see note 7 above).

  65. Kenneth Burke, The Grammar of Motives (New York: Prentice-Hall, 1945).

  66. Apess, “Eulogy on King Philip,” in On Our Own Ground, 288 (see note 16 above).

  67. Francis Jennings, The Invasion of America (New York: Norton, 1976), 127, 146; Richard Slotkin, The Fatal Environment: The Myth of the Frontier in the Age of Industrialization (Norman: University of Oklahoma Press, 1985), 53.

  68. Apess, “Eulogy,” in On Our Own Ground, 278, 296 (see note 16 above)

  69. Apess, “Indian Nullification,” 180–81 (see note 16 above).

  70. Apess, “Eulogy,” 288 (see note 16 above).

  71. Ibid., 278.

  72. Ibid., 295.

  73. Ibid., 306.

  74. Ibid., 308.

  75. Alexis de Tocqueville, Democracy in America (Chicago, Ill.: University of Chicago Press, 2001), 34.

  76. Apess, “Eulogy,” 306 (see note 16 above).

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    Adam Dahl

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For helpful comments on earlier drafts I would like to thank Elizabeth Beaumont, Paulina Ochoa Espejo, Burke Hendrix, Nancy Luxon, Joe Soss, Dara Strolovitch, David Temin, Joan Tronto, and Antonio Vazquez-Arroyo as well as the editor and three anonymous reviewers at Polity. The American Council of Learned Societies and the Andrew W. Mellon Foundation provided crucial financial support for the writing and research of this article.

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Dahl, A. Nullifying Settler Democracy: William Apess and the Paradox of Settler Sovereignty. Polity 48, 279–304 (2016). https://doi.org/10.1057/pol.2016.2

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