The relationship between the United States and the Indigenous nations and people of the region is, at once, the most deeply historical, complicated, and underexamined aspect of American politics. Two new books, Bruce Duthu’s Shadow Nations and David Wilkins’s Hollow Justice, provide another opportunity for scholars and students of U.S. politics to learn about the troubling practices of U.S. settler colonial rule from the nation’s founding on up to the contemporary period. Although rarely termed as such, the United States is a settler colonial state and political society because it is built upon the colonialist dispossession of indigenous people from their land and the settlement of nonindigenous peoples on much of this territory. As well as dispossessing indigenous people of territory, colonial and settler governments have endeavored to eliminate them as a distinct people—most notably through violence, benign and malicious neglect, and forced assimilation. Despite prevailing myths of the “disappearance of the Indian,” indigenous nations and people are very much present and politically active in their own nations and in relation to settler governments. In their books, Duthu and Wilkins implicitly reveal the structures and practices of American settler colonialism, while they also consider how the indigenous–U.S. relationship might have become, and possibly still could be, a more equitable, less colonialist relationship.

Duthu’s primary focus is on the law, and his approach combines history, political theory, and legal theory. His book is an impressive work. Normatively, Duthu advocates the revival of legal pluralism as a way to ensure that tribal sovereignty can be secured in a co-existent, but not assimilatory, relationship to the United States. Duthu locates in the founding era of the United States a “formative ethos” of legal pluralism in which “early American leaders contemplated the formation of a plurinational state, whereby tribal governments and the national government would engage in political discourse via the medium of negotiated treaties” (p. 17). In Haudenosaunee (Iroquois) political philosophy, he locates this form of legal pluralism in the Kaswentha, the Two-Row Wampum belt that remains a “model for achieving peaceful coexistence in shared territories” (p. 18). But this founding normative imaginary of a pluralistic relationship between indigenous and American legal authorities soon ceded way to the legal centralism of the U.S. settler state. This placed indigenous nations into the shadows, vulnerable to the American nation’s inclination to “empire at will” over indigenous nations, people, and territory (p. 85). The author takes on the complex tasks of explaining how this legal centralism reproduces itself right on up to our day while also exploring the pros and cons of recapturing a pluralistic indigenous–U.S. relationship.

Duthu’s main institutional focus is the U.S. judiciary, as he argues that in the modern era it is the Supreme Court that has done the most “damage to the political and territorial integrity of tribes” (p. 127). An example of his sophisticated analysis of the modern Supreme Court occurs in Chapter 5, which contains a subtle and prescient reading of the judicial philosophy of Justice Anthony Kennedy. Kennedy is the swing vote on many matters, including those concerning tribal sovereignty and U.S. federal power in Indian Affairs. Duthu reads Kennedy’s judicial philosophy as premised upon a structuralist approach through which the meaning of constitutional provisions are to be understood in the context of the Constitution and how it sets out the roles and relationship among the nation’s key governing institutions and principles. However, Duthu critiques Kennedy for having a too-narrow structuralist approach that constrains his ability to recognize the formative and continued status of tribal governance as a legitimate, distinct entity in relation to U.S. governance. This reading epitomizes the author’s wider approach in the book, whereby he critiques American juridical and political presumptions and practices so as to then provide correctives premised upon reviving an ethos of legal pluralism to move toward a vision of indigenous–U.S. coexistence without domination. He is well aware of the limitations of this aim, including the persistence of the settler state, the ideological constraints of liberalism, and the role of political power, interest, and will.

Of all these constraints, the author might have spent more time working through those regarding the status of private property. In the Conclusion, he asserts that legal pluralism can be reconciled with the “core concerns of liberalism” (p. 186), but among the central features of liberal democratic states is the presumption that a people’s relationship to land centers on the concept of private property. In the U.S. context—as with other settler contexts such as Canada, Australia, and New Zealand—the justification of persistent dispossession and settlement upon indigenous land converted into private property is a central imperative of settler colonial rule. Duthu is clearly aware of this, but it seems that the question of land, and the politics, power, and governing imperatives that property shapes in settler contexts might have had greater presence in exploring the tensions of a legal pluralist vision in a settler colonial context. This is not to say that he is responsible for resolving this constraint, but it may well have brought the role of settler colonial governance to the fore more explicitly.

While Duthu begins with legal principle and then explores its relationship to institutions, Wilkins analyzes the institutionalization, process, and politics of indigenous claim making that concerns, most often, the loss of territory via the “treaties, congressional acts, and policy directives” of the U.S. settler government (p. 5). As with Duthu, Wilkins puts his subject matter into impressive and thorough historical context, tracing the development of the claim-making and adjudicating process back to the nineteenth century and then up to the creation of the Indian Claims Court (ICC) in 1946 until its demise in 1978. Wilkins also has chapters attending to specific indigenous claims and the attendant legislative and court battles regarding what became the Maine Indian Claims Settlement Act of 1980 (Chapter 6) and the long-running Cobell Trust case—named after lead plaintiff Elouise Cobell (Chapter 7).

In Cobell, the plaintiffs sought a full accounting and distribution of moneys owed to indigenous people from funds held in trust by the U.S. government. The case began in 1996 as “the largest class action suit ever certified against the U.S,” and was finally settled in 2012 (p. 143). Plaintiff Cobell died of cancer a year earlier. Her death symbolizes the toll extracted by settler colonial governance, whereby a high price is often paid even in cases in which indigenous people achieved some degree of success. For example, the Maine Settlement Act left the Passamaquoddy, Penobscot, and Houlton Band of Maliseet nations to be treated as “state” Indians without a distinct, direct relationship with the U.S. federal government, which “constrained their efforts to become more economically self-sufficient and to be recognized and respected as bona fide sovereign nations” (p. 139). In the Cobell case, after 16 years of fighting in court and legislatures, the average benefit awarded to an individual claimant amounted to between “one and two thousand dollars” (p. 182). And these are the “successful” claims! This raises a central, if implied, question raised by Hollow Justice as well as by Shadow Nations: How can indigenous political actors gain just redress for settler colonial dispossession by working through the institutions of a settler state that is built and maintained upon these very dispossessions? There is no easy answer, but this question points to a tension and a persistent political frustration that both books reveal.

Wilkins demonstrates these tensions and frustrations in his extension discussion of the ICC, covering three chapters. The ICC was initially set out to be more like a commission, charged with gathering the facts and determining reasonable compensation. However, its process quickly shifted into something akin to an adversarial court. This worked to the advantage of the settler state, which has greater financial, institutional, and legal-political resources to fight these battles. One stark example of this advantage came in the U.S. government’s demand for offsets to be deducted from claim awards. These offsets were meant to pay back the U.S. settler state for, say, the education that indigenous people may have received in U.S. funded schools, or for assistance with legal fees, or travel, or anything state officials could come up with (Chapter 5). As such, even on those rare occasions when an Indigenous nation won its claim against the U.S. government, the “win” was quickly turned into a loss, or at best a draw. At a more fundamental level, we see here how settler state institutions compel indigenous nations to pay a good part of the costs accrued in the effort to gain redress for the very unjust dispossession that provoked the claim in the first place.

Those who may question whether it is appropriate to refer to the U.S. state as a settler colonial state, or wonder what it means to talk about settler governance, will see in the seemingly dry example of “offsets” how the term fits quite well. I only wish that Wilkins himself had drawn this out more directly. Given all that his book demonstrates to us about the unjustness of the claims process, it is hard to imagine how his closing hope for a “genuine reconciliation between indigenous nations and the federal government” (p. 192) could occur without the concept, history, and structures of U.S. settler colonialism being placed into the starkest light possible, and from that basis building a political vision of resistance to it.

In their own ways, both Duthu and Wilkins deftly reveal, if at times maybe too implicitly, the settler colonial practices and institutions that shape the U.S. relationship to indigenous nations, while they each also seek to unearth and consider the potential for the development of principles, practices, and institutions that might help to decolonize this relationship. Neither work leaves one optimistic regarding the latter aim absent a more radical anticolonial approach to this relationship, but regardless, both books deserve high praise for their careful, substantiated, and important accounts.