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St. Thomas Law Review

First Page

341

Document Type

Article

Abstract

Iroquois oral tradition relates that in early pre-colonial times, a peacemaker came to the Five Nations of the Iroquois, bringing a message of peace and establishing the Iroquois Confederation. The peacemaker, Deganawidah, also established a system of governance for the Five Nations,' which was incorporated into the earliest constitution of an American people. Numerous authors such as Bruce Johansen, Donald Grinde, and Gregory Schaaf have suggested that this oral tradition served as the foundation for the American Constitution. Other authors, such as Eric Jensen, have described these writings as fanciful and not based in fact; believing that many of the ideas incorporated into the U.S. Constitution arose from the principles enunciated by John Locke and Montesquieu. In recent years, as a result of the increased awareness of the rights and importance of indigenous peoples, this dialogue has gained greater importance in substantiating the credibility of the American indigenous heritage. This paper will explore this American indigenous heritage from its origins in the Deganawidah legend to the present resurgence of claims by indigenous American peoples; that their nations and confederations have remained intact, and their treaties with the United States Government are still in force. Part I will focus on the historical background of the Deganawidah legend and the history of the Iroquois nation, from early pre-colonial time through their earliest contacts with the colonial powers, and leading up to the American Revolution. This will allow the development of a historical and chronological progression for my theories before entering into current policy discussions. Part II will discuss the relationship of the founding fathers to the Five Nations and the background for Johansen's, Grinde's, and Schaaf's theories. Many of these theories revolve around the early contacts of Benjamin Franklin with the Five Nations during the Albany Conference on July 4, 1754, and comments by John Rutledge during the Constitutional Convention. As counterpoint, I will examine the opposing position suggested by Eric Jensen and others; that the U.S. Constitution was based on the theories of Locke and Montesquieu rather than upon the Iroquois Confederation. This section will also focus on the pragmatic reasons why the format of the Iroquois Confederation was unsuited to the needs of the new American Nation. It is my contention that the Constitution created by the Five Nation Confederation was more closely analogous to the failed Articles of Confederation and to the present United Nations, both of which represent a deliberative body that governs by consensus, but has difficulty in enforcing its mandate. The founding fathers, particularly John Adams and the Federalists, felt that this model was unworkable, opting instead for a representative central government with a strong executive, rather than a consensus driven confederation. Part I will complete the historical analysis by relating the history of the Five Nations and its interactions with the new United States It will also include an overview of United States policy vis-a-via the Indian nations and the Iroquois to the present era, along With the dialogue created in the international community concerning the rights of indigenous peoples. Part IV will discuss the present conflicts between the United States and its indigenous peoples. It is obvious that the concept of segregation of native American peoples on reservations under the control of the U.S. Government has not proved successful; nor have attempts at full integration of Indian peoples into the body politic. In addition, attempts to recreate the territories of the indigenous people prior to the annexation of their land by the U.S. Government would be extremely costly and disruptive of the reliance interests in property rights of U.S. citizens. A collaborative dialogue leading to a workable compromise must be established, whereby the interests of both parties may be preserved. An overview of this current dialogue will be presented along With several suggested solutions.

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