THE TRUTH ABOUT PROPERTY.

• Author: Shoemaker, Jessica A.
• Position: Annual Book Review Issue

FEDERAL GROUND: GOVERNING PROPERTY AND VIOLENCE IN THE FIRST U.S. TERRITORIES. By Gregory Ablavsky. New York: Oxford University Press. 2021. Pp. ix, 350. $39.95.

INTRODUCTION

"The truth about stories is that that's all we are." (1) This is one of the repeated refrains in Thomas King's The Truth About Stories: A Native Narrative. King is an American-born Canadian author and Indigenous scholar. His book, a collection of public lectures, is not the subject of this review, at least not directly. But King's book is relevant to the work that is our subject: Gregory Ablavsky's Federal Ground: Governing Property and Violence in the First U.S. Territories, (2) an incredible, expansive inquiry into the origins of federal property titles and, more broadly, federal jurisdiction and sovereignty in the first U.S. territories at the end of the eighteenth century.

Let's start with The Truth About Stories. King's point about stories being "all we are" is, I think, a reminder that our deepest narratives--the stories we hear within our families and in our own heads and also the stories that we tell ourselves collectively as a society--shape the world as we see and experience it. (3) He shares two examples to prove his point: a retelling of an Indigenous creation story and a version of Genesis.

First, King tells a First Nations creation story about a woman named Charm. (4) Charm falls to a watery earth from a "larger, more ancient world" in the sky; (5) finds her way onto an agreeable turtle's back; (6) and then works in harmony with "chatty fish and friendly rabbits," (7) a host of other sentient and supportive animals, and her own children to build a beautiful world here on earth, with mud. (8) "Boy, they said, this is as good as it gets. This is one beautiful world." (9)

Then, King tells his version of Genesis: God creates heaven and earth and, on the last day, humans. Adam and Eve are spawned in a perfect garden with no sickness, death, hunger, or hate. (10) The only rule is not to eat the apple. Eve eats the apple, and God casts them out "into a howling wilderness to fend for themselves, a wilderness in which sickness and death, hate and hunger are their constant companions." (11)

These are both powerful stories with many different interpretations and variations. I am not really an expert in either. (12) But here is the point: How might we understand the world differently if we believed one story versus the other? King argues Charm's story creates a world governed by cooperation that celebrates caretaking and balance, where a formless world of water and mud is collectively reimagined and transformed into a more beautiful, diverse, and harmonious place for humans and nonhumans alike. (13) In Genesis, King asserts, we have a universe built by a solitary act, governed by a powerful hierarchy, where a single breach of imposed law and order moves humans from perfection to chaos, a "world of harsh landscapes and dangerous shadows." (14)

These stories--and their consequences--are both much more complex and multifaceted than this simplified comparison can suggest. But perhaps we can accept for now that King is probably right: stories are powerful, and for that reason, "you have to watch out for the stories that you are told." (15) For me, reading Gregory Ablavsky's Federal Ground was like this: a new creation story that changed how I understand the current legal world and how I imagine what is possible. Rather than a flat outline of historic effects, Ablavsky animates a whole bustling landscape across early America, in which a succession of small interactions shapes modern property systems and governance institutions. In so doing, Ablavsky makes me reconsider the American creation stories that I have been told.

The American expansion story that I first learned--and that I would argue still dominates the popular imagination--presumes westward settlement proceeding along a carefully unfolding grid, with new and enterprising owners spreading methodically across, and filling up, an otherwise empty landscape. (16) America, we learn, turned land into property for the good of all mankind and populated the West in an egalitarian, even progressive, way. (17) If you work hard in America, you can own property. (18) Opportunity is equal. Rights are neutral. The predominant ethic is productive improvement, and American property and governance are not only morally legitimate but practically inevitable. (19)

Ablavsky, by contrast, tells a story of American expansion that is messy, uncertain, even haphazard. Rather than preordained, Ablavsky describes an America that is experimental, improvisational, unlikely. The Native nations that first owned and governed this land are powerful agents, as are the diverse cadre of other residents and speculators who made numerous overlapping and competing claims to ownership at the same time--drawing authority from multiple sovereigns and operating within pluralistic and dynamic understandings of what property even is.

From this tumultuous soup, Ablavsky explores how the federal government ultimately concentrated power to create a singular system of federal land title, preclusive federal control of Indian affairs, and ongoing federal jurisdiction across the West, especially over remaining public lands. He takes the reader deep into the details of early territorial land and governance struggles that "played out one parcel of land, one violent dispute at a time" (p. 15). And here is the kicker: he shows how the primary source of federal authority is, again and again, neither inevitability nor morality but, rather, the federal government's ability to position itself as the authoritative storyteller--to act as the central arbiter of which narratives would be heard, which land claims would be deemed legitimate, and which rights were legible and why. (20)

Although Ablavsky is not the only scholar to unearth these truer histories of American empire, (21) his work is uniquely meticulous and specific. (22) Much of the book is devoted more to rich historical description than to forward-looking analysis of what these narratives mean for modern property law or other subjects. (23) Yet, in my own mining of this more nuanced American creation story, I think Federal Ground suggests important insights about the nature of property relations today--including important lessons about how property systems emerge and evolve, how property choices entrench inequities across geography and generations, and what might be lost in the continuing homogenization of how we even imagine and conceive of what property, land, and community relations can be.

In the remainder of this Review, I briefly summarize Federal Ground, attending mostly to Ablavsky's history of property system formation in the West. Then, I explore some of the potential consequences that could flow from Ablavsky's more nuanced property creation story. If stories matter as much as King tells us they do, Ablavsky's history could be alchemy, reorganizing and transforming how we understand the world.

1. PROPERTY CREATION STORIES

Federal Ground starts in 1791, as then-Secretary of State Thomas Jefferson compiles "a dense, four-thousand-word catalog tracing a welter of claims ... in the so-called western country" (p. 1). At this moment in history, a lot depends on the new country's settlement of the West. (24) The new federal government needs to sell western lands to fund its war debts (p. 51) and is striving to project its power into the tenuous borderland spaces west of Appalachia where multiple sovereigns have already come and gone and significant Native power remains. (25) It also wants to solidify its authority vis-a-vis the states and other global powers (pp. 5-7). Much of the American identity at this time is also tied to civic-republican ideals that see neat, orderly, and widely dispersed citizen landownership across the West as instrumental to achieving an engaged, participatory civil society in America. (26)

Jefferson's report, however, depicts not the blank canvas on which these visions had been projected but rather an expanse that already "teemed with people asserting ownership--many Native peoples,... but also land companies, French villagers, Revolutionary War veterans, and roughly forty thousand Anglo-American migrants, many alleging title under prior state laws" (p. 1). Federal Ground takes us deep into the daily decisionmaking and onthe-ground negotiations that followed as officials sorted through this morass, setting precedent and building institutions along the way. In the following two Sections, I first broadly summarize Federal Ground's contents, then turn to more focused analysis of the property-specific history. More detailed attention to the many other threads that emerge from the book--including how federalstate relations and American imperialism evolved more generally--is reserved for future work. (27)

1. Broad Themes o/Federal Ground

   Federal Ground takes us to the Northwest and Southwest Territories as the U.S. Constitution is newly enacted. The Northwest Territory, in what is now the Midwest, has recently been ceded to the federal government by Virginia, and much of it is still owned by the Delaware, Shawnee, Miami, Wabash, and other Native nations. The Southwest Territory, which is now Tennessee, includes lands ceded by North Carolina, and nearly all of it still belongs to the Cherokee and Chickasaw Nations (pp. 1, 6, 19). Ablavsky considers events in these territories beginning after Great Britain's surrender of its claim to the North American colonies and continuing through the first territorial transitions to statehood in 1796 (Tennessee) and 1802 (Ohio) (pp. 1, 15).

   Ablavsky divides his coverage into three parts: "Property," which details federal efforts to reconcile diverse, preexisting claims to land ownership into a single system of federalized property title (pp. 19-105); "Violence," which explores the way federal management of...