Treaty of Waitangi Sovereignty-Talk: Lost Moments
![handle is hein.journals/otago11 and id is 691 raw text is: Treaty of Waitangi Sovereignty-Talk: Lost Moments
Richard Dawson*
In 1828, twelve years before the signing of the Treaty of Waitangi, the Legislature
of the State of Georgia passed a statute to assert control over Cherokee lands
supposedly protected under the Treaty of Hopewell, signed in 1785.1 The Cherokee
turned to the United States Supreme Court for protection against this unilateral
act of incorporation. In the second of the two Cherokee Cases, John Marshall
CJ, talking about the relationship between the Cherokee and the United States
of America, offered this by way of context:
[Tihe settled doctrine of the law of nations is, that a weaker power does not
surrender its independence - its right to self-government, by associating with a
stronger, and taking its protection. A weak State, in order to provide for its safety,
may place itself under the protection of one more powerful, without stripping
itself of the right of government, and ceasing to be a State. Examples of this kind
are not wanting in Europe.2
Marshall CJ, speaking for the Court, held the Georgia statute in question to be
void. And he held that Indian 'nations' were distinct peoples with the right to
retain independent political communities. Georgia's effort to impose its law on
the Cherokee was deemed to be an illegitimate 'extra-territorial' act.
Marshall CJ's judicial opinion stimulated various fundamental questions
relating to politico-legal identity in his time. Such questions have continued
to flow. In a 1991 Cardozo Law Review essay on the topic of sovereignty Perry
Dane asked the following questions: 'How would Marshall have drawn a ...
cartographer's map [of Georgia]? Would it have included the lands of the
Cherokee nation? Or would Marshall have drawn the Georgia state lines around
the Cherokee nation?'3 Dane responded to these questions as follows:
I suspect that Marshall might have insisted on drawing two maps. In one, Georgia
and the Cherokee nation would be separate states. In the other, they would not.
To say that the Cherokee were 'extra-territorial' was, I think, for Marshall both
an exercise in the imagery of state exclusivism and, also, a transformation of that
imagery. The Cherokee could be both inside and outside Georgia. They can (I am
less certain that Marshall would agree with this) be both inside and outside the
United States. That willingness to draw two maps, or three maps or four maps is,
as much as anything, the surest sign of sovereignty-talk at its most mature, its most
expansive, its most real. Indeed, I would be willing to generalize from Marshall's
procedure: Sovereignty-talk, at its best, comprehends the willingness and the
ability to hold, in tandem, apparently contradictory images of the relationship
between self and other. It is the ability to insist on absolute dominion, and yet also
MCom (Auckland), PhD (Econ) (Auckland), LLM (Hons) (Waikato). Richard is
currently enrolled as a doctoral student at the University of Canterbury School of
Law, where he holds the position of Teaching Assistant. He is grateful to the two
referees of this article for their suggestions.
For details of this treaty see R Dawson, The Treaty of Waitangi and the Control of
Language (2001) 57.
2 Worcester v Georgia, 6 Pet (31 US) 515, 561.
3 P Dane, Maps of Sovereignty: A Meditation (1991) 12 Cardozo L Rev 951, 990.](ViewImageLocal?handle=hein.journals/otago11&div=46&collection=&method=preview&ext=.png&size=3)
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Treaty of Waitangi Sovereignty-Talk: Lost Moments
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