Racial juris-fiction: Federal Indian law from the discovery doctrine to allotment

Kim Benita Furumoto
School of Justice Studies, Arizona State University
July, 2006


Reading law as literary text, this dissertation employs critical race theory and postcolonial theory to analyze formative doctrines and policies of federal Indian law that emerged between the early nineteenth and early twentieth centuries, from the U.S. Supreme Court's enunciation of the discovery doctrine through the allotment era. The empirical terrain of this project consists of selected legal texts from this period---primarily U.S. Supreme Court decisions, along with congressional statutes, presidential addresses and letters, statements by Commissioners of Indian Affairs, and other legal-archival fragments. This study refers to law's assemblage of racial conjurings, phantasms, and legitimizations as racial 'juris-fiction'. Dual racial notions of the 'savage' and the 'civilizable' Indian, this dissertation suggests, coexist in tension in the 'conflictual economy' of the historical discourses of federal Indian law, and animate material-political dispossessions and exclusions. This project seeks to explore the law's citing/siting of the Indian as a racial figure between dual forms of object- being, and between thingness and nothingness. These analytical threads underscore the dehumanization of American Indians in U.S. law. The unfolding of these racial conceptions in the law is at once an account of the alterity (and enmity) of the native and an account of the state's subjectivity. This study also addresses some of the colonial elements of federal Indian law, which may be observed, for example, in the U.S. state's racial- paternal modes of ruling over Indian nations. This dissertation further excavates some of the conceptual tensions, concatenations, and conflations that
dwell constitutively in federal Indian law. These include annihilative force and (of) law; blurrings and demarcations of the public and the private; the relation of law to land; and the conjunction of race and religion. Tracing federal Indian law's configurations of racial otherness, this project will analyze these various articulations as it explores the symbiotic relationship between juris-fiction and jurisdiction.