Newcomb: On the North American Indian tradition of liberty

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In his 1782 “note on Virginia,” Thomas Jefferson pointed out that American Indians in the East had traditionally divided themselves into relatively small societies. He said that this was, no doubt, the result of the Indians having “never submitted themselves to any laws, to any coercive power, or any shadow of government.”

Native societies, said Jefferson, controlled their internal relations by “their manners, and that moral sense of right and wrong” that was as much a part of their nature as “the sense of tasting and feeling” is part of the nature of any person.

An offense by any person against that moral sense of right and wrong within a given Native society, noted Jefferson, “is punished by contempt, by exclusion from society, or, where the case is serious, [such] as that of murder, by the individuals whom it concerns.”

As “undefinedmperfect as this species of coercion may seem,” said Jefferson, “crimes are very rare among” the Indians. Jefferson then posed a most interesting question: Which “submits man to the greatest evil,” “no law, as among the savage Americans, or too much law, as among the civilized Europeans”?

Jefferson answered that “one who has seen both conditions of existence would pronounce” that too much law as among the civilized Europeans submits man to the greatest evil: “and that the sheep are happier of themselves, than under the care of wolves.” It is because large societies cannot exist without government, said Jefferson, that the Native societies “break themselves into small ones.”

What I believe Jefferson was noticing is the North American Indian tradition of liberty: a truly free way of life, without monarchs or despotic leaders who could dictate their will. Such societies were regulated from within; not by written laws, but a code of honor, respect, honesty, and an abiding appreciation of the sacred web of life. The result was a sense of liberty in the beauty of a natural setting that is now difficult for many of us to comprehend let alone imagine being able to live as a way of life.

European thinkers such as Montaigne, Rousseau and Locke used the North American Indian model of liberty as a means of critiquing the oppressive hierarchical order of church and state in Europe. Before coming into contact with Native liberty, Europeans simply had no example to draw upon that could provide them with a meaningful alternative to a monarchial and feudal order. The European Enlightenment period was greatly influenced by those chroniclers who provided Europe with the example of Native liberty.

Historian Gregory Schaaf, in his remarkable book “Wampum Belts and Peace Trees: George Morgan, Native Americans, and Revolutionary Diplomacy” (1990, Fulcrum Publishers), deals extensively with the Lenape, a nation with which the early colonists had extensive relations. Schaaf provides a beautiful summary of the Lenape worldview that enabled the people to live a spiritual life of liberty:

“Lenape philosophy was an ancient form of democracy. Traditional Lenape recognized not only the rights of all men, but those of all women. They also believed that human beings should respect life – animals, plants, and even tiny insects – because all had been made by the Creator for a purpose. According to the Lenape the mountains, the rivers, the Earth, and the heavens above were created in harmony for a divine purpose. They viewed the entire universe as alive with spiritual power.”

Schaaf also wrote that “among traditional native people, the right to liberty meant more than just political freedom for male landowners and the abolition of slavery for some races. Liberty encompassed the divine right of everyone and everything to exist in a natural state as the Creator had intended.”

Benjamin Franklin, who interacted with Native societies in the East, specifically used the example of the Haudenosaunee Confederacy (then the Five Nations Confederacy) and Native liberty to advocate that the 13 British colonies break free from the British Empire and form their own independent confederacy. The eventual result was the Articles of Confederation and then the present U.S. Constitution (drafted in 1787 and ratified in 1789), which Congress later formally acknowledged was influenced by the example of the Confederacy of the Haudenosaunee and its Great Law of Peace.

The example of Native liberty that helped to liberate much of the world from dictatorial rule by monarchies seems particularly important at a time when President George W. Bush has, in the manner of a monarch, been consolidating power for the executive branch of the United States. Many legal scholars now say that Bush has assumed the mantle of a king or imperial presidency, and thereby threatened the separation of powers that the authors of the Constitution drafted into the constitutional framework. The concept of “separate branches” of government was borrowed from the Haudenosaunee concept of the Tree of Peace.

Bush’s power grab, assisted by a Republican majority in Congress, has also threatened the Bill of Rights, which was intended to protect the civil liberties of the individual from abusive governmental actions and thereby prevent tyranny. With the recent passage of the Military Commissions Act that Bush signed into law on Oct. 17, he and Congress have even suspended the writ of habeas corpus that has been part of the English Common System since the Magna Carta of 1215 A.D.

Habeas corpus enables an accused person to reach a court to challenge any incarceration in the event someone believes he or she is being wrongfully held. The Military Commissions Act not only suspends habeas corpus for those persons charged as “enemy combatants,” all in the name of waging the “war on terror”; it also allows Bush to define what constitutes torture for those people held as “enemy combatants.” It remains an open question whether a “presumed innocent” U.S. citizen may be denied habeas corpus once charged as an “enemy combatant.”

Jefferson said that the North American Indian tradition of liberty existed without “coercive power or shadow of government.” By contrast, the latest phase of the political experiment known as “the United States of America” seems to be “an Empire way of life,” predicated on coercive power, and a “shadow government,” the existence of which was formally announced shortly after Sept. 11, 2001. An Empire way of life is predicated on the values, thoughts and behaviors of domination, a term inherited from the Roman Empire meaning “unrestricted power, absolute dominium, lordship, tyranny, despotism.”

The question at this point seems to be: “Will the political experiment of the United States, which owes much to the North American Indian tradition of liberty, be able to survive this dark period of its history?”

<i>Steven Newcomb, Shawnee/Lenape, is Indigenous Law Research Coordinator at the Sycuan Education Department, co-founder and co-director of the Indigenous Law Institute, and a columnist for Indian Country Today.