Histories Made Flesh: William Apess’s Juridical Theologies

MELUS, Sep 2017

Johnson, Shelby

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Histories Made Flesh: William Apess’s Juridical Theologies

please e-mail: . DOI: 10.1093/melus/mlx027 6 MELUS Volume 42 Number 3 (Fall 2017) Downloaded from https://academic.oup.com/melus/article Histories Made Flesh: William Apess's Juridical Theologies Shelby Johnson Between 1977 and 1979, the Wampanoag Mashpee of Massachusetts attempted to reclaim ancestral lands as a source of geographical unity, cultural heritage, and economic support. The Mashpee alleged that in violation of the Indian Nonintercourse Act (1790), “tribal land was taken from [the Mashpee tribe] between 1834 and 1870 without the required federal consent.” The jury, however, found that “what was a tribe in 1842 had voluntarily assimilated into the general society by 1869” and denied the Mashpee land claim in the initial trial (28 February 1977).1 The First Circuit Court of Appeals upheld the original ruling (13 February 1979).2 The Mashpee continued to contest these rulings over the next thirty years and finally received federal recognition in 2007. This contemporary indigenous land claim in the United States provides a point of departure for exploring how the Mashpee trials' pronouncements regarding assimilation can be historicized by revisiting the writings of William Apess, a Pequot activist and Methodist preacher, who agitated on behalf of the Mashpee for self-governance between 1833 and 1834. Apess, who was adopted into the Mashpee tribe and wrote extensively on its behalf during the 1833-34 struggle, never appears in the statements by the judge, Walter J. Skinner, although the political struggle Apess supported became an important form of evidence in the trials. Critics of the original Mashpee struggle and the contemporary trials have suggested that the court papers construct a range of fictions through which the Mashpee land contention becomes imbricated within a larger reading of indigenous history and cultural assimilation.3 By calling this ruling of assimilation a fiction, I wish to highlight its status as a historical construction, a heuristic device created by the court to encompass the scope of Mashpee history by insisting on the metonymic significance of static, discrete events within that history. Incidents from Mashpee history are repeatedly invoked during the trial but often lack the names of specific participants, such as Apess, or, more importantly, the forms of protest these participants created in their struggle against Massachusetts's governing bodies. The Mashpee trials therefore underscore the brutal historical logic Joanne Barker has argued is at work in nearly all indigenous land and recognition claims: “[T]roubled notions of Native culture and identity attach to Native legal ...................................................................................................... - status and rights in ways that force Native peoples to claim the authenticity of a culture and identity” that has always already “been defined for them” ( 17 ). The contemporary trials thus construct a version of the Mashpee past only to then read contemporary tribal life as a “failure” to inhabit that history, a process that leaves unacknowledged those moments in Apess’s work where he creates counter-narratives to the US legal order.4 In “The Indians: The Ten Lost Tribes” (1831), Apess renders just such a counter-narrative as he imagines himself summoned to give an account of God’s justice in the face of the “flagrant” crimes of American settler colonialism: Some have even arraigned the justice of God. I have been asked, time and again, whether I did not sincerely believe that God had more respect to the white man than to the untutored son of the forest. I answer, and always answer such, in the language of Scriptures: “No: God is no respecter of persons.” I might meet a question of this kind by proposing another[:] . . . Is not the white man as sinful by nature as the red man. . . . [Is] he not an enemy to God and righteousness, prone to the commission of every crime, however flagrant in its nature and its tendencies? (113) In this moment, Apess tellingly frames the question of God’s justice with the legal term “arraigned”—to call before a court to answer a criminal charge— intimating that God is called to testify to indigenous dispossession. Although he ultimately denies the charge laid against God’s sovereign justice, by inscribing the “commission of every crime” within an interrogative address, Apess introduces lingering hesitation: why has God not answered the charge? And why must Apess answer for him and only through “the language of the Scriptures,” narratives temporally and geographically far removed from Apess’s own moment? The role Apess occupies as a witness poses its own kind of answer. His presence in this moment of juridical encounter mirrors the unfolding of narrative in “The Indians” as a whole, a text that inserts New World indigenous histories within the long arc of biblical narrative. “The Indians” argues that New World indigenous peoples are the descendants of the ten Hebrew tribes carried away into Assyrian captivity, tribes who never returned home and thereafter vanished from Old Testament histories.5 For Apess in “The Indians,” however, the ancient Hebrews live again, surviving within a host of ethnic and kinship inheritances that mark present indigenous bodies. I suggest that by rendering indigenous peoples as the genealogical inheritors of Hebraic promise, Apess offers an alternative historical ethos, one that “re-enfleshes” peoples who have long vanished from memory. If God cannot or will not testify to the lingering devastations of colonialism, then, by refleshing histories as forms of textual retrieval, Apess offers a trenchant protest to the procedures through which indigenous bodies “vanish” from colonial archives. Jean M. O’Brien describes this disappearance as a spectralization of the “first” and “last” Native American that naturalizes ongoing indigenous 7 genocide by the settler state. By returning not just to forgotten or evaded indigenous histories but, in some sense, reimagining those histories as materially revived in present bodies, Apess summons a counter-archive, one entrenched in flesh that can be read.6 As this passage from “The Indians” may suggest, Apess rarely considers questions of historical ethos apart from a visionary—and revisionary—theology grounded in the brutal realities of racial embodiment within everyday indigenous existence.7 To that end, his writings refuse to evade politico-theological arrangements that manage indigenous existence under the auspice of the settler state. In this sense, the archives Apess invokes unsettle theories of sovereignty described in contemporary accounts of political theology. Indeed, the German jurist and legal scholar Carl Schmitt opens his Political Theology (1922) with the well-known statement: “Sovereign is he who decides on the exception” ( 5 ). Schmitt believed that no legal system could adequately anticipate or account for all potential futures and returned the legal order not to a code of law but to the sovereign who makes exceptional decisions in times of crisis. Schmitt’s account of sovereignty depends on a transcendent and originary institution of the state that precedes the legal order. In The Nomos of the Earth (1950), Schmitt locates this originary act of sovereignty within colonial history and argues that European international law developed as a response to New World discovery, which began with “land-appropriation as the primeval act in founding law” (45).8 Schmitt’s “primeval act” of earthly theft thus founds the settler colonial order, as well as the terrain of modern sovereignty and embodied citizenship. Apess transferred what Schmitt understood as a primeval scene of theft to an ongoing and everyday indigenous experience, connecting the state of exception to a longue dur´ee of colonial history. In A Son of the Forest (1831), Apess announces: “The sentence of desolation has gone forth. . . . [I]mplacable wrath, goaded on by interest and prejudice, is ready to confound all rights, trample on claims of justice and humanity, and to act over those scenes of sanguinary vengeance which have too often stained the pages of colonial history” (68). Apess imagines this “sentence of desolation” emerging within affective realms, such that feeling overwhelms the bodies performing the “scenes of sanguinary vengeance.” He entrenches the devastations of what Schmitt calls a state of exception deep within flesh, within patterns of thought and behavior, ultimately rendering them as an embodied history that marks indigenous communities. Apess’s writings therefore form what I call a juridical theology, where an attention to enfleshed histories disentangles state sovereignty from its unspoken authority derived from extrajuridical scenes of theft. His work diverges from political theology as it has recently been articulated in scholarship that explores histories left out of the legitimating maneuvers of state practice.9 Instead, Apess is invested in those immanent accounts of crime banished from national archives to everyday scenes of terror, which are not (or cannot) be called crimes because to do so would 8 Downloaded from https://academic.oup.com/melus/article-abstract/42/3/6/4079666 by guest on 10 June 2018 undermine a nomos of US territorial domination and expansion. In calling attention to these unmarked and unremarked-upon pasts, Apess insists that any national narrative must address histories of violence—the sentences of desolation, which have gone forth and still go forth—that devastate indigenous bodies. I suggest that Apess’s writings figure history as remnants of the past inscribed on indigenous bodies, a historical resource that archives the past in flesh. This form of evidence, however, is precisely what remains unread in contemporary judgments of indigenous land and recognition claims. In what follows, I explore the embodied archives Apess summons against the pronouncements of the 1970s Mashpee trials. By revealing pasts rendered unassimilable by twentieth-century courts, Apess’s writings end by illuminating how legal excesses continue to damage present indigenous existence. Unassimilable Pasts At its heart, the US court’s reading of voluntary assimilation in the 1970s Wampanoag Mashpee trials offers one evidentiary account of indigenous bodies “vanishing” through American expansion. Involved in the Mashpee action was a claim for tribal recognition and for approximately thirteen thousand acres of land in Mashpee, Massachusetts (Campisi, Mashpee 9). In order to mediate the dual claims for recognition and land, the court early summoned historical texts as evidence for either tribal survival or disappearance-through-assimilation. Crucial to any reading of Apess’s archival witnesses, then, is the federal court’s interpretation of indigenous assimilation and coercion within what they viewed as a surviving, accessible historical archive. Walter Skinner, the First Circuit Court judge presiding over the 1979 appeal in Mashpee Tribe v. New Seabury Corp., began by affirming that an extended history of cultural intermingling can be traced in historical records: “The Mashpees have a long history of intermarriage with non-Indians and acceptance of non-Indian religion and culture. These facts do not necessarily mean that the Mashpees are not a tribe protected by federal law, but they do make the issue of tribal existence a difficult factual question for the jury.” Questions regarding the identification of pre-contact indigenous communal formations and post-contact fusions of social and cultural expressions have long engaged the interest of scholars of indigenous history.10 However, a closer reading of the court documents suggests that an alternative line of inquiry resides in the way cultural purity is enfolded in a broader consideration of the authority of historical “facts” in a legal setting. What is troubling is that indigenous “history” appears in this case as a series of linear, discrete, discoverable data rather than through encounters of contestation, ambiguity, and volatility (Kaplan 13-14). Historical records, in other words, are matters of fact, not matters open to interpretation. In order to address the question of voluntary assimilation, both 9 judge and jury only have recourse to historical records, heuristically and somewhat ominously defined in Skinner’s 1979 judgment in Mashpee Tribe v. New Seabury Corp. as capable of clearly marking coercive events and their consequences: The plaintiff had an advantage because evidence of coercion from outside the community a century ago is more likely to be available today than is evidence of the state of mind of the individuals who changed their lifestyles. That is, historical records would reveal forced migrations, governmental dealings, urban encroachments, the presence of outsiders, or other arguably coercive forces more readily than the important concerns or thought processes of the Indians. Skinner makes a telling distinction between assimilation and coercion based on the likelihood of finding either in historical records: assimilation is relegated to the hidden interior life of individuals caught up in the political events of Mashpee struggles of the 1830s and 1840s, whereas coercion indicates the public relations between US authority and indigenous communities. This distinction suggests that assimilation occurs beyond the horizon of observation and documentation, even if its effects are preserved in historical records.11 Skinner’s judgment, furthermore, relies on a definition of tribe that is itself conflicted. Cited throughout both Mashpee cases is the legal definition of a tribe, the parameters of which were decided in Montoya v. United States (1901). A tribe, according to Montoya and quoted by Skinner in the 1979 Mashpee case, is “a body of Indians of the same or a similar race, united in a community under one leadership or government, and inhabiting a particular, though sometimes ill-defined territory,” overturning an earlier definition as elaborated in United States v. Joseph (1876). These standards, which are protected by the Nonintercourse Act, constrict the possibilities for tribal recognition according to ethnic unity (“of the same or a similar race”), political organization (“united in a community” and “under one leadership or government”), and ties to a specific locale (“inhabiting a particular, though sometimes ill-defined territory”). As Skinner notes in the 1979 Mashpee case, “A tribe may be so sophisticated or so assimilated as to fall outside the scope of protection afforded by the Nonintercourse Act.” This additional burden of proof dramatically constrains tribal appeals and authorized Skinner to argue that the Mashpee tribe, according to external markers of dress, behaviors, and spiritual affiliations, had “essentially . . . assimilated” into Massachusetts society, leaving unsaid and unexplained when or how such an assimilation occurred and what an unassimilated Mashpee culture might look like. This portrayal of indigenous oppression presents a legal double-bind for the Mashpee plaintiffs: if the Mashpee can provide evidence of forced assimilation (or the dissolution of tribal identity), can they then agitate, as a tribe, for federal recognition? What the court cannot acknowledge are the systemic forces—extensive, mediative, and diffuse—forming the material 1 0 Downloaded from https://academic.oup.com/melus/article-abstract/42/3/6/4079666 by guest on 10 June 2018 conditions for Mashpee tribal life to change, adapt, and continue enduring into the present under the shadow of such sentences of desolation.12 The Mashpee plaintiffs responded to the court’s request for evidence of coercive assimilation with historical records of resistance, making the case that these figures represent more potent evidence for the continuation of indigenous lifeways than the docile bodies the court imagines. The conclusion of the 1979 Mashpee trial, however, reads the historical evidence of self-governance and self-determination as failures, as signs of the assimilation of the Mashpee community into the economic, political, and cultural habits practiced by the white inhabitants of Massachusetts: The intense political activity that could have led the jury to find tribal existence in 1834 and 1842 was novel for the group and limited in time and scope of objective. The goal of becoming a district with certain rights of self-government was achieved in 1834. The jury could infer that the tribal organizations, having accomplished its purposes, became less important to the community. Crucially, what is at stake for the court are the meanings of coercion and resistance; moments of political activism and resistance are read by Skinner as a voluntary form of assimilation, as signs of the community’s dissolution rather than expressions of its survival. Obscured in the texts of the later Mashpee court trials, Apess’s writings represent a legal discourse counter to the Massachusetts court’s notion of assimilation and consent and the visibility of both in historical archives. The court understands Mashpee resistance as evidence that the tribe has assimilated US political practices and legal vocabularies in its own collective selfexpressions. In reading both the trial records and Apess’s autobiographical works, David J. Carlson argues that the pervasiveness of discourses of assimilation describing indigenous identity at the 1970s trials would suggest that, were Apess’s writings to have been invoked as a kind of historical record of tribal identity in the Mashpee land trials, “they would probably have been used as evidence against the tribe” (121). In reading Apess’s works alongside the trials, I suggest that his accounts of the legal horizon of indigenous experience indicate a more complicated evaluation of what counts as evidence. Indeed, Apess’s configuration of an embodied archive, of histories entrenched in flesh, marks an alternative kind of evidence formed in extremis, an evidentiary witness ultimately rendered illegible by the courts. “We now, in our synagogue” Apess’s Indian Nullification of the Unconstitutional Laws of Massacusetts Relative to the Marshpee Tribe; or, The Pretended Riot Explained (1835) encompasses his journalistic account of political activism in Mashpee, Massachusetts, including multiple newspaper versions of the disturbance. Maureen Konkle argues that 1 1 throughout Indian Nullification, “Apess orchestrated a systematic assault on white authority through various forms of writing” during the Mashpee struggle and created a range of socio-textual disruptions in Boston, where much of the discussion of the Mashpee struggle occurred (120).13 Under Apess’s leadership, the Mashpee tribe delivered a letter to the state legislature announcing their intention to rule themselves according to the rights encoded in the Constitution. The Mashpee tribe also sent a letter to Harvard administrators urging the recall of Reverend Mr. Fish, the minister appointed to the parish and employed through external funding (Apess, Indian 174-77).14 Through these textual accumulations, Indian Nullification counters the legal, economic, and political practices provoking the Mashpee tribe’s dislocation from spiritual autonomy, economic security, and political authority. Konkle notes that Indian Nullification’s collaborative expression is profoundly linked to the demands of the Mashpee tribe itself: “The object of the conflict . . . was for the Mashpees to secure collective control of an authority over the land they had inherited from [a] seventeenth-century transaction” (126). The text, however, also channels forms of expressive worship into collective activism defined by collaboratively created, performed, and embodied disruptions. The Mashpee struggle thus began as an attempt to interpret a text, this “seventeenth-century transaction,” but came to include other embodied forms of protest, particularly for inhabiting certain spaces. By addressing how Indian Nullification imagines indigenous bodies in space, I argue that the bodies and buildings conjured in the documents of the Mashpee struggle mark the political possibilities of Apess’s embodied archives, where historical meaning materializes in flesh. Apess resists the relegation of indigenous presence to spectral encounters by returning to the material architecture of the chapel, exploring how church buildings become sites for enunciating communal self-determination. Apess cites the centrality of the church building in the Mashpee narrative of dispossession: “These pale men were certainly stealing from the Indians their portion of the Gospel, by leaving their own houses of worship and crowding them out of theirs” (Indian 171). Here, Apess groups several different kinds of thefts—theft of the Gospel (both the materiality of the book and a vocal evangelicalism that expressed, as Robert Warrior reminds us, “hope for a reconstituted present” [197]) and the theft of physical spaces within which to worship as a corporate body (Konkle 128). These thefts occur by means of crowding, or the accumulation of white congregants who abandon their own church properties and whose sheer numbers overwhelm the enthusiastic worship practices of Apess and other congregants. The material architectures enclosing, protecting, and marking the sites of indigenous spirituality are thus overtaken in the same way their lands have been stolen. Apess bitterly summarizes how the silencing of indigenous lifeways is encoded as perfectly legal: “The law allowed them to do so” (Indian 171). Regaining possession of the chapel is thus an important step in articulating a collaborative embodiment of indigenous authority. Apess shrewdly deconstructs 1 2 Downloaded from https://academic.oup.com/melus/article-abstract/42/3/6/4079666 by guest on 10 June 2018 the rhetorical strategies at work in keeping indigenous congregations from reclaiming worship spaces. In describing the white ministers’ initial refusal to vacate the church buildings, Apess suggests: Both the divines mentioned above [Reverend Hawley and his successor, Reverend Fish] were willing to have the use of the property of the Marshpees, I fear, under a mere pretext of doing them good; and, therefore, that they and the overseers might have a support from the plantation, the owners were constantly proclaimed to be savages. I wonder what the whites would say, should the Indians take possession of any part of their property. Many and many a red man has been butchered for a less wrong than the Marshpees complain of. (187)15 This passage’s invocation of property and possession works on several registers keyed to who owns what at a given time. At the opening of the passage, the Mashpee seem to “own” the church property that the American ministers have “use of.” In the next sentence, however, that ownership is reconfigured through a language that implicitly invites comparisons to American slavery, as the Mashpee’s technical ownership is constrained by “overseers” on the “plantation” of the chapel and forest grounds. The Mashpee tribe’s technical ownership is undermined by calling them “savages,” much as African slaves were relegated to the category of the subhuman (or, in the language of the Constitution, three-fifths of a person).16 These complicated rhetorical registers foreground the indeterminacy of pronoun usage in the statement that follows: “I wonder what the whites would say, should the Indians take possession of any part of their property.” Is Apess pondering the results of an obverse theft, of Indians taking the property owned by Americans, or is he musing on the outcome of the Mashpee reclaiming control over “their” grounds and buildings? Even posing this as a possibility is structured as a rhetorical exercise—“I wonder”—given that Apess clarifies what has been the historical outcome for these indeterminate hypothetical questions. Such an attempt, whether it is framed as retributive theft or communal reclamation, nearly always ends in indigenous death, in the collective degradation of indigenous bodies—the “[m]any and many . . . butchered” bodies of the passage. Given the realities of indigenous genocide, expressions of right of place and spiritual possession accrue particularly potent meaning in Indian Nullification when Apess describes how the reclaimed church buildings were used as communal meeting spaces to draft statements of resolution delivered to the Massachusetts state legislature and to Harvard. In these moments, Apess not only foregrounds the role of the reclaimed worship spaces as a site for indigenous historical self-authorship but also calls into question the written creations of American legal discourse: We now, in our synagogue, for the first time, concerted the form of a government suited to the spirit and capacity of freeborn sons of the forest, after the pattern set 1 3 us by our white brethren. There was but one exception, viz., that all who dwelt in our precincts were to be held free and equal, in truth as well as in letter. . . . Having thus organized ourselves, we gave notice to the former board of overseers and the public at large, of our intentions. (179) Apess acknowledges the community’s debt to the “patterns” of government and legal organization offered by their “white brethren” but registers a stunning expression of difference from it: that their emancipatory texts will become more than texts. They will render an indigenous political order “in truth as well as in letter.” The written texts generated from these meetings—the resolutions and notices articulating the “form of a government suited to the spirit and capacity of freeborn sons of the forest”—will thus exceed their textual boundaries. In a real sense, Apess imagines that these new legal texts will no longer offer an approximate ideal that political arrangements struggle to enact but will ensure in a more complete sense the collective freedom of the Mashpee tribe. Apess follows this by arguing that the Mashpee struggle “acted in accordance with the spirit of the Constitution” in moving to “nullify the existing laws” restricting their exercise of self-determination (179). Here, even the Constitution exceeds its textual bounds, its “spirit” enabling the Mashpee tribe’s collaborative act of selfdetermination. By recovering the chapel and exceeding the textual boundaries of their own political documents, the Mashpee tribe thus offers an account of “spiritually” enabled indigenous bodies who testify to “free and equal” forms of inhabiting and belonging to reclaimed Mashpee spaces. No matter the extent to which Mashpee collaborative expressions of embodied authority announce these alternative forms of collaborative engagement, they are framed as assimilationist, as “failures,” during the 1977-79 Mashpee trials. Apess himself clearly demarcates the Mashpee’s embodied and discursive practices from an American tradition of New England republicanism. Late in Indian Nullification, he remarks: “We daily see the Indian driven farther and farther by inhuman legislation and wars, and all to enrich a people who call themselves Christians and are governed by laws derived from the moral and pious Puritans” (213).17 By focusing on “inhuman legislation and wars,” Apess addresses the irregular and disproportionate application of law throughout the United States, which perpetuates the dispossessions of so-called “savage” peoples, particularly in the era of Jacksonian Indian Removal. Apess’s juridical theology expressed in Indian Nullification thus opens space for indigenous dissent from the legal and legislative histories of the settler state through embodied and collaborative spirituality. Indeed, Lisa Brooks has argued that Indian Nullification “demonstrate[s] the continuing use of writing as an instrument for communal rememberment and land reclamation, as well as a powerful means of narrating Native continuance” (197). By turning to Apess’s “An Indian’s Looking-Glass for the White Man” (1832), however, we see that he provides a more radical expression of juridical 1 4 Downloaded from https://academic.oup.com/melus/article-abstract/42/3/6/4079666 by guest on 10 June 2018 theology as one necessarily located in flesh. If Indian Nullification often reveals indigenous dispossession and protest by associating bodies with spaces, architectures, and spiritual expression, An Indian Looking-Glass goes far beyond Apess’s delineations of collaborative political possibility that approximate the “spirit” of texts such as the Constitution. Rather, he more urgently renders communal rememberment with histories written and preserved on bodies, with histories made flesh. Histories Made Flesh “An Indian’s Looking-Glass for the White Man” conjures an obverse history that reinscribes the crimes of the settler state on the bodies of white Americans. This text thus provides Apess’s most condensed examination of modern racism and its impact on US legal institutions. In an unsettling passage, Apess imagines a series of legal texts calculating the crimes of European colonizers and inscribed on white skin. These living skin-books form an embodied counter-history to the legalized thefts, dispossessions, and genocides perpetrated during centuries of EuroAmerican expansion and the preservation of these crimes in court documents, legal histories, and political texts. His skin-books, furthermore, serve as witnesses to this past at a moment when, in many cases, slaves or nonwhite persons faced restrictions or outright prohibitions on their in-court testimony.18 Apess opens the passage by invoking a global event of witnessing, a call to “assemble all nations together in your imagination” (157). Once this court of the imagination is convened, he continues: Then let the whites be seated among them, and then let us look for the whites, and I doubt not it would be hard finding them; for to the rest of the nations, they are still but a handful. Now suppose these skins were put together, and each skin had its national crimes written upon it—which skin do you think would have the greatest? I will ask one question more. Can you charge the Indians with robbing a nation almost of their whole continent, and murdering their women and children, and then depriving the remainder of their lawful rights, that nature and God require them to have? And to cap the climax, rob another nation to till their grounds and welter out their days under the lash with hunger and fatigue under the scorching rays of a burning sun? I should look at all the skins, and I know that when I cast my eye upon the white skin, and if I saw those crimes written upon it, I should enter my protest against it immediately and cleave to that which is more honorable. (157) By commanding, “let us look for the whites,” Apess suggests that this will be a collaborative legal judgment, one that includes all ethnicities devastated by Euro-American colonialism. He then follows by registering a visceral legal fantasy—that the genocides of the American past become thinkable, conceivable, and publicly visible on the skins of the white inhabitants and that nonwhite 1 5 casualties of colonialism will be active readers of those violations on white skin. When situated within histories that mark the limits of testimony, Apess’s skinbooks attempt to render the crimes of settler colonialism legible on white bodies, thereby refusing a racial logic that reads whiteness as an unmarked indicator of civilization and moral superiority. His skin-books thus serve as witnesses to histories of racial violence, indeed to the very histories overwritten, and thus unrecognized, in the 1970s Mashpee trials. They form the central testimony and conflicted theological formulation in his juridical theology, and they illuminate in their materiality the lingering mutilation of archival spaces by legal excesses, by exercises of sovereignty that unmask both the exceptionality of state authority and the everyday existence of those condemned to live under the shadow of the decision. Moreover, by imagining that white skin marks an archive for reading colonial atrocity, Apess attempts to reverse the historical momentum of settler colonial devastation of black and brown bodies, as well as rethink an important trope in minority literature of the period that often reads dismembered body parts, scars, and brands on nonwhite bodies as evidence of settler colonial brutality. For instance, as a generational survivor of the Pequot massacres, a tribe “erased” from the historical record after the Pequot War (1634-38), Apess begins the passage by fusing his own tribal history to a larger pattern of crimes committed against indigenous communities, of “robbing a nation almost of their whole continent, and murdering their women and children, and then depriving the remainder of their lawful rights” (157). In many ways, Apess’s Pequot lineage initiated him into a literal history of flesh, where, during the Pequot War, bodies and body parts accrued significant political importance. Andrew Lipman has examined the cultural meanings of exchanges of heads and limbs during the war, exploring how, in the Puritan symbolic order, decapitating enemies and displaying their heads established dominance, while the Pequots “often exchanged wartime trophies” of heads, scalps, or limbs “to affirm alliances” ( 4 ). During the conflict, Puritans legitimated the bodily mutilation and displays of indigenous flesh by returning to Old Testament “mandates” for such violence, including David’s beheading of Goliath (1 Sam. 17.46) (Lipman 10). In this way, the Puritans used indigenous bodies and body parts to express a particular kind of sovereign message, one that decisively read dismembered brown bodies as signs of white dominance.19 Apess’s rendering of skin-books is formed against a historical backdrop in the exchange and display of body parts during the Pequot War, but the passage also situates these living texts within the context of American slavery, what he calls the theft of persons from “another nation” (“Indian’s” 157).20 By imagining a counter-history where white skin makes legible the lingering wounds of colonial crime, Apess’s words revise images from slave narratives of the period. William Grimes’s slave narrative, The Life of William Grimes, a Runaway Slave, Written by Himself (1825), for instance, concludes with Grimes proposing that the political 1 6 Downloaded from https://academic.oup.com/melus/article-abstract/42/3/6/4079666 by guest on 10 June 2018 ideals of the Constitution find meaning: “If it were not for the stripes on my back which were made while I was a slave, I would in my will, leave my skin a legacy to the government, desiring that it might be taken off and made into parchment, and then bind the Constitution of glorious happy and free Americans. Let the skin of an American slave bind the charter of American liberty” (68). Here, Grimes renders an embodied history that both testifies to the cruelties of slavery and maintains fidelity to the emancipatory possibilities of the Constitution, possibilities that are brutally evaded in the everyday arrangements of the American slave order (and echo Apess’s own indictment in Indian Nullification that US political realities fail to live up to the “spirit” of the Constitution).21 Although Grimes uses his own skin (rather than white skin) as evidence for the failures of the US legal system, both Apess’s and Grimes’s embodied histories remain haunted by the illegibility of indigenous and African American archives in US accounts of territorial expansion. Their skin-books attempt to bridge the scattered sites of legal mutilation— of the dismemberments of bodies, communities, and histories—and thus imagine that a body may itself bear witness to those losses, may become part of a global history made flesh. It is as an archival witness, however, that Apess’s skin-books illuminate the crucial theological paradox of his legal fantasy: that the atrocities of the past can become materially legible on skin alone. In Remnants of Auschwitz: The Witness and the Archive (2002), Giorgio Agamben meditates on the inexpressible and unfathomable lacunae that are so central to Holocaust testimonies given that the “‘true’ witnesses, the ‘complete witnesses,’ are those who did not bear witness and could not bear witness. They are . . . the drowned” (34). They are those who did not survive.22 Agamben’s insight into the incomplete nature of any testimony urges us to ask: What kinds of indigenous narratives could possibly encompass the long, deadly history of the American settler state, marginalized in the profound archival erasures that Drew Lopenzina has called procedures of “colonial unwitnessing” ( 5 )? How might the “national crimes” Apess invokes become meaningfully inscribed, mediated as they are by skin alone and not the scars or brands so central to minority testimony? Out of this ethical aporia, Agamben proposes that testimonies to atrocity always already exist prior to language: “Perhaps every word, every writing is born, in this sense, as testimony. This is why what is borne witness to cannot already be language or writing. It can only be something to which no one has borne witness” (38). What Apess offers in “An Indian’s Looking-Glass for the White Man” may solve Agamben’s testimonial paradox: his white skin-books propose that no matter the form of the narrative inscribed within these books, the skin itself embodies, or materializes, a past. Apess summons unmarred white skin as an originary witness to any narrative account of settler colonial crime he has or will produce. In Apess’s conceptualization then, white bodies always already testify to the guilt of colonization. Their very skin reverses both a theological logic that had read dark 1 7 skin as a sign of divine punishment and African American and Native American invocations of dismembered and scarred black and brown skin as evidence of colonial atrocity. However, Apess begins this passage on white skin and guilt by invoking the human body as the image of God: “Now let me ask you, white man, if it is a disgrace for to eat, drink, and sleep with the image of God, or sit, or walk and talk with them. Or have you the folly to think that the white man, being one in fifteen or sixteen, are the only beloved images of God” (“Indian’s” 157). Apess opens, then, by appealing to an incarnational logic that opens a new ethical aporia for imagining embodied testimonies. On the one hand, the skin-books, those sacred, originary witnesses, testify to bodies as “beloved images of God,” as the imago dei, the human form impressed with the mark of divine love. On the other hand, white skin summons a litany of crimes committed in the wake of New World settler colonialism, which the rest of the passage takes such pains to render. This tension is ultimately underscored in the interrogative syntax of the sentences. For Apess, his skin-books pose questions not theological declaratives—white skin offers testimony to both divine love and to creaturely guilt and functions as an extrajuridical appeal to human equality and to the earthly violations devastating indigenous communities in the New World. Apess’s juridical theology in “An Indian’s Looking-Glass for the White Man” ends with a conflicted theology of flesh as a marker of terrible crime and divine possibility, more fraught than any legal fiction of voluntary assimilation can account for. It is therefore ironic that the US courts initially denied the Mashpee its tribal identity, evading the evidentiary witness of Apess’s unsettling archives-made-flesh. His skin-books remain the unread texts within the 1977-79 trials. Notes 1 8 Downloaded from https://academic.oup.com/melus/article-abstract/42/3/6/4079666 by guest on 10 June 2018 1 9 2 0 Downloaded from https://academic.oup.com/melus/article-abstract/42/3/6/4079666 by guest on 10 June 2018 2 1 We who were favored by fate tried, with more or less wisdom, to recount not only our own fate but also that of the others, indeed of the drowned. . . . The destruction brought to an end, the job completed, was not told by anyone, just as no one ever returned to describe his own death. Even if they had paper and pen, the drowned would not have testified because their death had begun before that of their body. . . . We speak in their stead, by proxy. (qtd. in Agamben 33-34) 2 2 Downloaded from https://academic.oup.com/melus/article-abstract/42/3/6/4079666 by guest on 10 June 2018 Works Cited 2 3 2 4 Downloaded from https://academic.oup.com/melus/article-abstract/42/3/6/4079666 by guest on 10 June 2018 1. All quotations in this article from Mashpee Tribe v. New Seabury Corp. come from the second case ( 1979 ). 2. The Mashpee at this time were also pursuing official recognition through the Department of the Interior and other legislative channels . 3. For critical accounts of the 1834-35 Mashpee struggle , see Maureen Konkle's Writing Indian Nations: Native Intellectuals and the Politics of Historiography , 1827 - 1863 ( 2004 ) ( 119 - 31 ) and Jean M. O'Brien 's Firsting and Lasting: Writing Indians out of Existence in New England ( 2010 ) ( 178 - 91 , 201 - 05 ). For an early reading of cultural authenticity and assimilation in the 1977-79 Mashpee trials, see James Clifford's “Identity at Mashpee” ( 1988 ). He argues that the court's decision was rooted in an inflexible standard of cultural authenticity. Laura Donaldson's reading of the Mashpee trials in “Making a Joyful Noise: William Apess and the Search for Postcolonial Method(ism)” (2003) focuses on how conversion to Christianity figured in the trials as a sign of the Mashpee's abandonment of Indian culture ( 29 - 30 ). More recently, David J. Carlson in Sovereign Selves: American Indian Autobiography and the Law (2006) has examined the Mashpee trials at the intersection of a broad nomos of US legal discourse and local Indian culture , historiography, and autobiography ( 120 - 21 ). See also Paul Brodeur's Restitution: The Land Claims of the Mashpee, Passamaquoddy, and Penobscot Indians of New England ( 1985 ) ( 25 - 67 ), Russell M. Peter's The Wampanoags of Mashpee: An Indian Perspective on American History ( 1987 ) ( 49 - 57 ), and Jack Campisi's “The Trade and Intercourse Acts: Land Claims on the Eastern Seaboard” (1985) and The Mashpee Indians: Tribe on Trial ( 1991 ) ( 9 - 58 ). 4. Drew Lopenzina in Red Ink: Native Americans Picking up the Pen in the Colonial Period (2012) addresses the complex interaction of historical fiction and colonial meaning-making at work in Apess's writings, arguing that “Apess saw that where one might hope to find a rich historical record of Native engagements and observances in the time of contact, we find instead a counter-presence, a canard, a complex fiction of Indian identity that, in various ways, fulfilled a multifaceted colonial agenda” (4). For further assessments of historical writing and colonialism, see Arnold Krupat's All That Remains: Varieties of Indigenous Expression ( 2009 ) ( 74 - 99 ), Konkle ( 114 - 68 ), and O'Brien ( 178 - 91 ). For analyses investigating Apess's work in the context of US history, national imperialism, and land reclamation , see Carlson ( 66 - 122 ), Cheryl Walker's Indian Nation: Native American Literature and Nineteenth-Century Nationalisms ( 1997 ) ( 41 - 59 , 164 - 81 ), Andrew Doolen's Fugitive Empire: Locating Early American Imperialism ( 2005 ) ( 147 - 74 ), Lisa Brooks's The Common Pot: The Recovery of Native Space in the Northeast ( 2008 ) ( 163 - 218 ), and Mark Rifkin's Settler Common Sense: Queerness and Everyday Colonialism in the American Renaissance ( 2014 ) ( 14 - 17 , 127 - 30 ). 5. Apess draws much of his thinking and evidence regarding the Jewish origins of Native peoples from Elias Boudinot, whose A Star in the West; or, a Humble Attempt to Discover the Long Lost Ten Tribes of Israel, Preparatory to Their Return to Their Beloved City, Jerusalem, first appeared in 1816. Apess explicitly references Boudinot's work throughout his oeuvre; see A Son of the Forest ( 1831 ) (53-56), for example. For critical readings of this mythology of American Indian origins in Apess, see Sandra Gustafsen's “Nations of Israelites: Prophecy and Cultural Autonomy in the Writings of William Apess” ( 1994 ), Meghan C. L. Howey's “'The Question Which Has Puzzled, and Still Puzzles': How American Indian Authors Challenged Dominant Discourse about Native American Origins in the Nineteenth Century” ( 2010 ) (especially 440-42), and Rochelle Raineri Zuck's “William Apess, the 'Lost Tribes,' and Indigenous Survivance” ( 2013 ). For a reading of this myth of origins more generally, see Kristina Bross's Dry Bones and Indian Sermons: Praying Indians in Colonial America ( 2004 ) ( 12 - 13 , 28 - 39 ). 6. In deploying “flesh” as a crucial concept in Apess's juridical theology, I am influenced by recent turns to flesh in politico-theological hermeneutics, especially Jacques Rancie`re's The Flesh of Words: The Politics of Writing (2004), which explores how the theological conversion, “the word became flesh,” constitutes a telos toward which texts strive. My own reading of Apess attempts to extend the word-flesh dialectic in the other direction: to explore how flesh becomes text, becomes history . 7. For readings of Apess's religious affiliations, see Bernd Peyer's The Tutor'd Mind: Indian Missionary Writers in Antebellum America ( 1997 ) ( 117 - 65 ), Robert Warrior's “William Apess: A Pequot and a Methodist Under the Sign of Modernity” ( 1997 ), Laura Donaldson's “Making a Joyful Noise: William Apess and the Search for Postcolonial Method(ism)” (2003), Eileen Razzari Elrod's Piety and Dissent: Race, Gender, and Biblical Rhetoric in Early American Autobiography ( 2008 ) ( 146 - 70 ), and Mark J. Miller 's “'Mouth for God': Temperate Labor, Race, and Methodist Reform in William Apess's A Son of the Forest” ( 2010 ). 8. Elizabeth Maddock Dillon in New World Drama: The Performative Commons in the Atlantic World, 1649 - 1849 ( 2014 ) argues that “Schmitt's account of sovereignty is useful in connecting the Westphalian interstate European order and the notion of territorial sovereignty articulated therein through the new spatial order that emerged with the European encounter with a colonization of the New World” (73). Dillon links Schmitt's insight to a host of legal regulations and decisions undergirding British imperialism from Cromwell on ( 72 - 74 ). See also Jonathan Elmer's discussion in On Lingering and Being Last: Race and Sovereignty in the New World ( 2008 ) ( 12 - 13 , 100 - 06 ). 9. Vincent Lloyd contends that political theology could do more to account for race and racial difference . In his introduction to Race and Political Theology ( 2012 ), Lloyd reads the conflicted religious imaginary undergirding Caribbean critiques of Western colonial practice alongside Carl Schmitt's formulations of juridical theories within Nazi racist politics and suggests that the idea “[t]hat race disappears when political theology expands from a narrow to a broad sense is troubling” (7). 10. One significant arena in debates on assimilation involves religious conversion, and, in the Mashpee case, adoption of Christianity by many members of the tribe played a crucial role in determining the court's impression of its voluntary assimilation. The Mashpee trials complicate how conversion is often read as a form of voluntary assimilation. Criticism on Apess has been part of a move to complicate models of spiritual contact and integration in indigenous communities, what Jace Weaver has called “religious dimorphism,” which he defines by invoking the work of anthropologist Joseph Epes Brown: “The historical phenomenon” of Native adaptation to Christianity “is thus not conversion as understood in the exclusivistic manner by the bearers of Christianity, but rather a continuation of the people's ancient and traditional facility for what may be termed nonexclusive cumulative adhesion” (qtd . in Weaver 177) . See also Joanna Brooks's American Lazarus: Religion and the Rise of African-American and Native American Literatures ( 2003 ) ( 17 - 18 ). 11. It is interesting that the court makes this distinction between public and private forms of assimilation and coercion given the forms of interaction invoked during the trial . Not only was Christian conversion read as evidence of voluntary assimilation, but interracial marriage was also denominated a form of assimilation. As Tiffany M. McKinney explains, “At various times during the trial, the defense counsel attempted to discredit anthropological evidence offered by the petitioners demonstrating the group was Indian by referring to the Mashpee as an African American community” (73) . See also Campisi (Mashpee 26 -27). 12. Campisi in The Mashpee Indians notes how Boston's urban growth in the 1960s and 1970s impacted Mashpee tribal life and organization. He addresses how changes in demographics, patterns of travel and transportation, city planning and urban development, and lifestyle transformations precipitated by the Mashpee community becoming more and more a suburb of Boston provided an important context precipitating the 1970s legal disputes (9-12). The Mashpee community was confronted by a host of social, political, and economic shifts in the 1960s and 1970s that provoked contestations, similar to during the struggles of the 1830s and 1840s . 13. Apess 's Indian Nullification of the Unconstitutional Laws of Massachusetts, or the Pretended Riot Explained (1835) locates two primary causes for the disorder: the desire for the Mashpee to employ their own ministers, rather than continue receiving Harvard trained preachers (who had habitually served only the white inhabitants of the region), and to exercise full authority over their lands and forests, especially since Mashpee, Massachusetts, remained one of the only extensive sources for lumber in the state. For details on the Mashpee struggle , see Konkle ( 119 - 31 ), Carlson ( 111 - 17 ), and O'Brien ( 178 - 91 , 201 - 05 ). 14. Carlson reads the Mashpee letters and petitions within traditions of treaty-making and against the present crisis of Cherokee Removal: The Mashpee “petition demonstrates again how the renewal of tribal consciousness and oppositional identity takes place in a way that mirrors the legal nomos of the colonial power being opposed” (115). See also his discussion of Cherokee removal ( 115 - 16 ). 15. The Mashpee were nearly always denoted “Marshpee” in nineteenth-century writing, including the full title of Apess's Indian Nullification: Indian Nullification of the Unconstitutional Laws of Massachusetts Relative to the Marshpee Tribe; or, The Pretended Riot Explained (Konkle 103) . 16. Konkle notes that Apess was speaking and writing in Boston not only during the crises of Indian Removal but also during crucial anti-slavery debates (115). For other readings of Apess's intersections with African American writers and activists , see Doolen ( 148 - 74 ), Krupat ( 78 - 87 ), and O'Brien ( 180 - 81 ). 17. Apess 's Eulogy on King Philip ( 1836 ) pointedly reverses the civilizational rhetoric deployed by Puritans during King Philip's War (1675-77). Metacom's dismembered and unburied body, rather than testifying to Puritan spiritual and political power, instead bears witness to New England colonial “savagery” ( 302 - 03 ). See also Lisa Brooks's discussion of Apess's invocation of Puritans (200-17 ). 18. Ronald N. Satz in American Indian Policy in the Jacksonian Era ( 2002 ) notes that the status of African American and Native American witnesses was peculiarly fraught during the age of Indian Removal because debates on removal quickly became entangled with questions of slavery, states' rights , and nullification (10-30 , 218 - 30 ). 19. The Treaty of Hartford, which ended the devastating conflict, merely put into words what the dismembered bodies had already articulated. In the aftermath of the Pequot War, colonial authorities decreed in the Treaty of Hartford: “The Pequots were then bound by COVENANT, That none should inhabit their native Country, nor should any of them be called PEQUOTS any more, but MOHEAGS [Mohegans] and NARRAGANSETTS forever” (Mason 18). Disbarred from using the name “Pequot,” the Treaty of Hartford legally erased the Pequot survivors from American history. For an account of the war, see Alfred A. Cave's The Pequot War ( 1996 ), and for a history of Pequot survival after the war, see Laurence M. Hauptman and James D. Wherry's The Pequots in Southern New England: The Fall and Rise of an American Indian Nation ( 1993 ) ( 232 - 50 ). 20. Apess repeatedly uses metaphors of enslavement when speaking of indigenous dispossession in Indian Nullification ( 167 , 187 , 201 - 05 , 217 , 239 - 40 ). See also Doolen ( 145 - 83 ). 21. For readings of these accounts of skin, skin-books, and scars as evidence, see William Andrews's To Tell a Free Story: The First Century of Afro-American Autobiography , 1760 - 1865 ( 1986 ) ( 77 - 87 ), Dwight McBride's Impossible Witness: Truth, Abolition, and Slave Testimony ( 2001 ) ( 88 - 99 ), Carol E. Henderson's Scarring the Black Body: Race and Representation in African American Literature ( 2002 ) ( 1-10 , 23 - 34 ), and Jennifer Putzi's Identifying Marks: Race, Gender, and the Marked Body in Nineteenth-Century America ( 2006 ) ( 99 - 120 , 130 - 53 ). 22. Here Giorgio Agamben engages with Primo Levi's The Drowned and the Saved (1986), where Levi recounts the impossibility of putting pen to paper on behalf of the drowned: Agamben , Giorgio. Remnants of Auschwitz: The Witness and the Archive . Translated by Daniel Heller-Roazen, Zone, 2002 . Andrews , William L. 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Johnson, Shelby. Histories Made Flesh: William Apess’s Juridical Theologies, MELUS, 2017, 6-25, DOI: 10.1093/melus/mlx027