The Harvard Law Review and the Iroquois Influence Thesis

Footnote 7 in the Developments chapter was dropped from a clause that reads, “Indians had successfully designed and developed advanced governments and laws to protect the rights of their peoples long before the federal government thought to suggest these institutions to tribes.”⁽¹²⁾ That’s true, up to a point, I suppose. I’m not sure how much traditional tribal governments were instituted to protect individual rights against overreaching by those governments, or the extent to which we should treat customs and practices as “advanced laws.” But for the sake of argument I’ll accept that textual statement.⁽¹³⁾

But footnote 7 went far beyond the idea that the tribes had governments and laws, as of course they did. The authors cited and quoted from two sources that are among the usual suspects in supporting the influence thesis—a 1751 (or perhaps 1750) letter from Benjamin Franklin to James Parker and a 1988 Concurrent Resolution passed by Congress. Neither citation provides support for much of anything worthwhile—the Franklin letter because the quoted language gives a misleading idea of Franklin’s meaning and the Concurrent Resolution because it’s nonsense on stilts promulgated by a political body, not a group of scholars.

In the letter to Parker, according to footnote 7, Franklin “observed … that the success of the Iroquois Confederacy, which ‘has subsisted ages, and appears indissoluble,’ demonstrated the feasibility of union for the colonies.”⁽¹⁴⁾ That statement supposedly supported the idea that, “[i]n fact, tribal governments had an impact on the development of the federal government.”⁽¹⁵⁾

Read in isolation, that latter statement is unobjectionable. Obviously the Constitution was affected, in that Indians and Indian tribes are both mentioned in that document.⁽¹⁶⁾ (We don’t need a quotation from Benjamin Franklin to find those constitutional provisions.) Furthermore, the founders, who were students of government, prided themselves on their study of other regimes, so it’s not surprising that many were interested in the governance (or, as some thought, the lack of governance) of American Indian nations.⁽¹⁷⁾ (In that respect, ancient Greece and the Roman Empire also had “an impact on the development of the federal government.”) And of course the colonists and the tribes had contact, but those meetings (or confrontations) typically didn’t involve discussions of political philosophy.⁽¹⁸⁾

The gulf between general statements about colonist-tribal relationships and the purported influence of the Iroquois Confederacy is enormous. In fact, the contact between colonists and Indians often wasn’t friendly, which by itself should call into question the influence thesis. And a closer look at the Franklin letter demonstrates that Franklin didn’t mean what footnote 7 said he meant.

The purpose of the letter was to advise Parker, a printer and long-time Franklin friend, who had asked Franklin and others for guidance about publishing a pamphlet apparently prepared by Archibald Kennedy, The Importance of Gaining and Preserving the Friendship of the Indians to the British Interest Considered,⁽¹⁹⁾ also cited in footnote 7. Although neither Kennedy nor Franklin was identified in the pamphlet,⁽²⁰⁾ the pamphlet included what is assumed to be Franklin’s response to Parker’s inquiry about the merits of the document. The letter is introduced in the pamphlet as follows: “The Author of the foregoing ESSAY, having desired the Printer to communicate the Manuscript to some of the most judicious of his Friends, it produced the following LETTER from one of them: The publishing whereof, we think, needs no other Apology, viz.”⁽²¹⁾ (Franklin had recommended publishing the pamphlet.⁽²²⁾)

In the first paragraph of the letter, Franklin wrote:

As the last clause confirms, Franklin didn’t think that the relationship between colonists and Indian nations was necessarily friendly. Friendship wasn’t a given; it needed to be “secur[ed].” And the title of the Kennedy pamphlet also suggested that it was necessary to “gain” the friendship of the Indians.⁽²⁴⁾

The tension between tribes and colonists didn’t disappear during the time between the publication of the Franklin letter and the Constitutional Convention. The sometimes unfriendly relationships continued to make unification of the colonies close to a necessity. Much of the original legislation emanating from Congress, after ratification of the Constitution, was directed at Indian affairs because of the potentially hostile tribes at the frontier, not because of admiration for the native peoples. In short, strengthening the central government would make it possible to deal with the “merciless Indian Savages” Thomas Jefferson had referred to in the Declaration of Independence⁽²⁵⁾—or the “savage tribes” Hamilton’s term in The Federalist.⁽²⁶⁾ (Would a rational new nation take its governing principles from merciless savages or savage tribes?)

Despite occasional intimations in the literature to the contrary, Franklin’s statement about the Iroquois Confederacy included in the Parker letter—that the Confederacy “has subsisted ages, and appears indissoluble”—wasn’t made at the 1754 Albany Congress.⁽²⁷⁾ That congress is often cited as the start of the serious push for confederation, and it was attended by many representatives of Indian nations, particularly from the Iroquois Confederacy.⁽²⁸⁾ At the Albany Congress, Franklin did express support for unification of a sort, as he had in the letter to Parker. But, as the title of the Kennedy pamphlet suggests, it was the “British interest” that was to be protected—unification within the British Empire, not the creation of a new united states.⁽²⁹⁾ Historian Timothy Shannon has explained, “Identifying Franklin or any other supporter of the Albany Plan as an embryonic American patriot in 1754 is misguided; quite to the contrary, his primary objective was to place the Crown’s American subjects on a more equal footing with those of Britain.”⁽³⁰⁾

Most important, the Franklin quotation in its unedited form—decidedly not the form intimated by footnote 7—doesn’t come close to supporting the influence thesis:

It would be a very strange Thing if six Nations of ignorant Savages should be capable of forming a Scheme for such an Union, and be able to execute it in such a Manner, as that is has subsisted Ages, and appears indissoluble; and yet that a like Union should be impracticable for ten or a Dozen English colonies.⁽³¹⁾

That’s hardly a positive statement about Iroquois principles.⁽³²⁾ Yes, Franklin urged consolidation of the colonies, but his urging was in the nature of “if even the ignorant Iroquois can do it, of course we can.” In any event, it’s hard to imagine confederation wouldn’t soon have been on the table for consideration regardless of what any colonist thought about the Iroquois Confederacy.

Footnote 7 quoted the Franklin letter in edited form and out of context. That also happened with the congressional committees considering what became House Concurrent Resolution 331, passed by Congress in 1988⁽³³⁾ and also cited and quoted, for some unfathomable reason, in footnote 7. (The resolution was cited as “recognizing the influence of ‘the Iroquois Confederacy and other Indian Nations [on] the formation and development of the United States.’”⁽³⁴⁾) The House Committee on Interior and Insular Affairs, in reporting on the draft Concurrent Resolution on October 3, 1988, shortly before the resolution was adopted, wrote:

[T]he incorporation of such concepts as freedom of speech, the separation of powers in government and the balance of power within government so impressed Benjamin Franklin that he challenged the colonists to create a similar united government when he stated: “It would be a strange thing if the Six Nations Iroquois Confederacy ∗ ∗ ∗ should be capable of forming ∗ ∗ ∗ such a union ∗ ∗ ∗ and yet a like union should be impracticable for ∗ ∗ ∗ a dozen English colonies.”⁽³⁵⁾

But Franklin mentioned none of those concepts (freedom of speech, etc.) in his letter to Parker—that wasn’t the reason for the letter—and the strategically placed asterisks turned the language quoted from the letter upside down.⁽³⁶⁾ I’d like to be able to assume that dishonesty wasn’t involved in editing the language for inclusion in the House Report, just a high level of enthusiasm about a fashionable idea. But the resulting misrepresentation was so great that such an assumption is hard to make.

That’s one of the reasons the citation to House Concurrent Resolution 331 in footnote 7 was bizarre. In that resolution, as noted, Congress had “recogniz[ed] the influence of ’the Iroquois Confederacy and other Indian Nations [on] the formation and development of the United States.’”⁽³⁷⁾ The resolution was actually even more specific, stating that “the confederation of the original Thirteen Colonies into one republic was influenced by the political system developed by the Iroquois Confederacy as were many of the democratic principles which were incorporated into the Constitution itself.”⁽³⁸⁾ As if that statement of the influence thesis weren’t strong enough on its own, the resolution “acknowledge[d] the contribution of the Iroquois Confederacy of Nations to the development of the United States Constitution” and noted that “the original framers of the Constitution, including, most notably, George Washington and Benjamin Franklin, are known to have greatly admired the concepts of the Six Nations of the Iroquois Confederacy.”⁽³⁹⁾That’s piling on—making basically the same point over and over.

So the drafters of the resolution left no doubt about their overblown point. But I have no idea why anyone, especially the Harvard Law Review, would quote language from a congressional resolution as support for a historical proposition. Where’s the evidence, for example, about the views of Franklin and Washington?⁽⁴⁰⁾You might cite a resolution to show what members of Congress thought at the time, I guess, but even that’s a stretch. Most feel-good congressional resolutions are routinely adopted, without deliberation.

This particular resolution did get limited attention in Congress. A Senate version had been introduced on September 16, 1987,⁽⁴¹⁾ and, on December 2, 1987, the Senate Select Committee on Indian Affairs held a hearing in the morning on the resolution, with the testimony and submitted statements coming almost entirely from proponents of the influence thesis.⁽⁴²⁾

The draft language of the resolution, at the time of that hearing, had provided that the confederation of the thirteen colonies “was explicitly modeled upon the Iroquois Confederacy.”⁽⁴³⁾ That’s the influence thesis in its most robust, and ridiculous, form—that the U.S. Constitution had its origins in the Iroquois Great Law of Peace.⁽⁴⁴⁾

Somebody must have realized that this was going way too far, however, despite testimony that would have supported such language. The Committee changed the wording before approving the resolution. “[E]xplicitly modeled upon the Iroquois Confederacy” was toned down to “influenced by the political system developed by the Iroquois Confederacy.”⁽⁴⁵⁾ That was still pretty strong, though, and the report of the Senate Committee on the resolution, dated September 30, 1988, while noting the change and attributing it to the need to conform the language to that in the House version,⁽⁴⁶⁾ held nothing back: “More than 200 years ago, the framers of the United States Constitution reviewed the principles of democracy and the democratic institutions of the Six Nations of the Iroquois Confederacy, and then drew from the Iroquois’ experiences in constructing the United State’s [sic] form of government.”⁽⁴⁷⁾ Evidence? None.

The change to the more temperate, but still over-the-top, language—the one significant change along the way in the legislative process⁽⁴⁸⁾-was apparently made because it was thought the original language wasn’t “completely accurate.”⁽⁴⁹⁾ Indeed. But the amended language, which was also contained in the original House version of the resolution, as introduced on July 11, 1988, by Representative Morris Udall,⁽⁵⁰⁾ wasn’t “completely accurate” either.

The preposterous resolution nevertheless breezed through Congress, quickly and with almost no resistance. A perfunctory “debate” about the resolution took place on the House floor on October 3, 1988.⁽⁵¹⁾ The resolution passed the House on October 4, 1988, with 408 yea votes and only 8 nays,⁽⁵²⁾ and the Senate passed it with unanimous consent, on October 21, 1988, the last day of the session.⁽⁵³⁾

To explain how this happened, a congressional aide was quoted as saying, “I’ll be honest with you, a commemorative resolution is not one of the highest priorities of the 100th Congress.”⁽⁵⁴⁾ (As a news story noted, “Aides to Senate sponsors … admitted the resolution may have escaped close scrutiny because of Congress’ heavy agenda before adjourning in time for the November elections.”⁽⁵⁵⁾) One thing can be said for sure: House Concurrent Resolution 331 wasn’t the result of informed deliberation by anyone—members of Congress or trained historians. Historian Peter Axtell complained that most historians were unaware of the existence of the draft resolution until it was too late to resist enactment.⁽⁵⁶⁾

And resistance would have occurred. The late Francis Jennings, director emeritus of the D’Arcy McNickle Center for the History of the American Indian at the Newberry Library in Chicago, was quoted as saying, about the amended (that is, relatively temperate) version of the resolution, “I don’t know how [the committees] let it get through…..It destroys my faith in the historical literacy of the Senate.”⁽⁵⁷⁾ Axtell similarly objected that “[t]he Confederacy has hoodwinked Congress into getting that resolution passed.”⁽⁵⁸⁾

On the same day the resolution was approved by the Senate, Congress passed resolutions indicating support for the National Purple Heart Museum⁽⁵⁹⁾ and the United States Senate Historical Almanac.⁽⁶⁰⁾ With such important business to transact—excuse the sarcasm— one can see why members of Congress weren’t focused on the contents of House Concurrent Resolution 331. It’s harder to see why members of the Harvard Law Review weren’t.

Footnote 9 in the Developments chapter added more wishful thinking. In support of a textual reference to the “long history of tribal self-government,”⁽⁶¹⁾ that note said, “The Great Law of Peace, the constitution of the Iroquois Confederacy, was drafted [sic] perhaps as early as August of 1142.”⁽⁶²⁾ The cited authority for that point was an essay by Barbara Mann in the Encyclopedia of the Haudenosaunee (Iroquois Confederacy), a volume that bought into the influence thesis.⁽⁶³⁾ How do we know that August 1142—what a nice sense of precision!—was “perhaps” a key date? According to the Encyclopedia, it’s because of oral tradition⁽⁶⁴⁾—you know, passing stories from one generation to the next, with embellishment inevitably occurring along the way⁽⁶⁵⁾—and tying certain events to solar eclipses, particularly one that occurred on August 31, 1142 (more precision!): “The Keepers speak of a Black Sun (total eclipse) that occurred immediately before the league was founded.”⁽⁶⁶⁾

To be fair to the Encyclopedia folks, that volume didn’t say anything about “drafting” the Great Law of Peace. The word “drafting” came from footnote 9. I’m not sure what the Harvard Law Review authors and editors thought “drafting” would mean in this context—wampum, perhaps, but translations of wampum weren’t available to the American founders. What were the Harvard Law Review people thinking in letting this stuff appear in their pages?

Footnote 9 is perversely interesting also because, in demonstrating the “long history of tribal self-government” and after the reference to the year 1142, the authors wrote that “[o]ther tribes, like the Cherokee and Chickasaw, passed constitutions of their own in the early to mid-nineteenth centuries… . These constitutions [of the Cherokee, the Chickasaw, and the Choctaw Nations] often were the products of constitutional conventions and extensive thought by the tribes that drafted them.”⁽⁶⁷⁾That may be, but it’s a big jump from 1142 to the nineteenth century.

If we were to conclude that some connection exists between the U.S. Constitution and tribal governing documents, and those tribal documents were drafted after the American founding, what is the chain of causation likely to have been? For that matter, the Great Law of Peace was reduced to writing not in 1142 or any other eclipse year,⁽⁶⁸⁾ but in the late nineteenth century.⁽⁶⁹⁾ Again, if similarities are found between the written Great Law of Peace and the Constitution-the similarities seem to me minimal, but others have more imagination-which “document” would have been the influencer and which the influenced?

I’ve written before about the imaginary connection between the Great Law of Peace and the U.S. Constitution,⁽⁷⁰⁾ and I’ve been criticized by tribal officials for not understanding the concept of “cultural diffusion”—that, “[w]henever two cultures come into contact, an immense amount of information changes hands immediately.”⁽⁷¹⁾ The idea, I guess, is that the founders adopted Iroquois principles, with a high level of specificity, without realizing where those principles came from. That’s close to a world record for implausibility.

It’s also been said that we shouldn’t be surprised when little or no documentation can be found to support the influence thesis: the events occurred over 200 years ago, hence the need to rely on oral traditions.⁽⁷²⁾ But the founding era is well documented. Not every piece of writing is trustworthy, of course, but if the founders were relying on ideas of the Iroquois Confederacy (or of any other American Indian nation), it’s hard to imagine we couldn’t find mention of that somewhere—in Madison’s notes from the Constitutional Convention, in reports of debates in the state ratifying conventions, in the Federalist Papers, in newspapers or other contemporaneous tracts—something somewhere.

The rebuttal might be that no written record exists because the delegates to the Constitutional Convention wanted to keep the Indian influence secret. Most of them wanted ratification to occur, of course, and the document was doomed if it was understood to have been derived from the Iroquois. But that hypothesis presupposes a conspiracy of silence of breathtaking scope. Besides, if the purported source of constitutional principles would have caused ratification problems, why wouldn’t the Anti-Federalists, some of whom were at the Convention, have noted this connection in their voluminous writings? If you’re looking for ways to defeat the Constitution, why wouldn’t you bring out the big guns—if the big guns exist? Historian Shannon sees the relationship between the founding documents and the Iroquois in a much more convincing way:

The Articles of Confederation and the United States Constitution … were decidedly anti-Iroquois in their ramifications: they assumed for the federal government exclusive powers in Indian affairs that made it impossible to turn back the clock and reinstitute the local diplomacy that had once sustained the council fire in Albany… . From the Indian perspective, the true legacy of the Albany Congress was the increasing use of federal power to cement their dependency and removal in the new American republic.⁽⁷³⁾

I’ll make one concession. The influence thesis is indefensible, but it’s not only crazies who have supported one version or another of the thesis over the years. For example, the legendary Felix S. Cohen, usually given credit for creating the field of American Indian law in his masterful Handbook of Federal Indian Law,⁽⁷⁴⁾ could also engage in hyperbole:

For it is out of a rich Indian democratic tradition that the distinctive political ideals of American life emerged. Universal suffrage for women as well as for men, the pattern of states within a state that we call federalism, the habit of treating chiefs as servants of the people instead of as their masters, the insistence that the community must respect the diversity of men and the diversity of their dreams—all these things were part of the American way of life before Columbus landed.⁽⁷⁵⁾

Cohen went so far as to say that “what is distinctive about America is Indian, through and through “⁽⁷⁶⁾ a striking conception of American exceptionalism.

Cohen was a serious scholar, but he wasn’t above romanticizing the past with the goal of improving the future for the American Indian nations. How could he have known most of that pre-1492 history, including the “diversity of their dreams”? More oral traditions, I guess. And, although it isn’t politically correct to say so, wars between American Indian tribes weren’t unheard of over the centuries.⁽⁷⁷⁾ Diversity of men and dreams can go only so far.

The influence thesis shouldn’t be taken seriously, in the pages of the Harvard Law Review or anywhere else, but that conclusion isn’t intended to denigrate American Indian nations. In fact, if one has the interests of those nations in mind, it’s risky to act as though a theory that is at best suspect and at worst nonsense is important to their status. American Indian policy doesn’t depend on the validity of an ahistorical thesis.

Almost thirty years ago, ethnographer Elizabeth Tooker noted that the influence thesis—under which white man’s law is treated, in its fundamentals, as equivalent to traditional tribal law—actually denies the distinctiveness of American Indians:

Some recent interpretations of Indian cultures and history have turned this “negative prototype” on its head, asserting that, indeed, Indians did hold white ideals and … even that whites got them from the Indian. But as laudable as this might at first glance seem, such a positive stereotype exhibits not only as little fundamental understanding and appreciation of Indian cultures as a negative one, but also little understanding of Western culture. We owe our fellow residents on the continent better.⁽⁷⁸⁾

In seeking to emphasize the importance and distinctiveness of American Indian nations, proponents of the influence thesis may be doing exactly the opposite.

In any event, nothing is gained by endorsing the influence thesis, and what is lost is something we should all care about: the truth.

The body of this article vents about the influence thesis. For anyone interested, I want to make a substantive criticism of the Developments chapter from the Harvard Law Review—in particular, the recommendation that tribal governments be given primary responsibility for interpreting the Indian Civil Rights Act, even in habeas cases.

It makes sense to defer to tribal governments on many issues, of course, but civil rights isn’t necessarily one of them. Civil rights statutes are intended to protect individuals, and ICRA was intended to limit the powers of American Indian nations over tribal members.⁽⁷⁹⁾ Deferring to a government’s interpretation of a statute intended to constrain that government isn’t the intuitively right way to proceed. After all, during the civil rights era, when ICRA was enacted, southern officials claimed that state governments were the best judges of how their societies should be structured. But that system wasn’t working well—to put it mildly.

I don’t mean to liken today’s tribal governments to Jim Crow-era state governments. But there’s no reason to think tribal governments are inherently noble and unlikely therefore ever to engage in abusive behavior; human nature is human nature. That’s why ICRA came into being: to protect tribal members—American citizens, after all—from overreaching by their own tribal governments.⁽⁸⁰⁾

That protection seems to require scrutiny of questionable governmental behavior by someone outside the tribal system. For the most part, however, ICRA has turned out to be a statement of aspirations rather than an enforceable legal document. The Supreme Court’s 1978 decision in Santa Clara Pueblo v. Martinez⁽⁸¹⁾— holding that, under ICRA, aggrieved tribal members have no recourse in federal court against their tribal governments, except in habeas cases—reduced the potential impact of ICRA dramatically.⁽⁸²⁾

If the only forum available to a tribal member who believes his civil rights have been abridged by a tribal government is tribal court—and that would be the result, even in habeas cases, of the Developments recommendations—the protections of ICRA aren’t worth much to that member. A tribal court, if it exists at all,⁽⁸³⁾ isn’t necessarily separate from other governmental branches—if other branches exist. (Tribes aren’t required to have governments with separation of powers, and a tribal court therefore doesn’t necessarily represent an independent judiciary.) The aggrieved tribal member’s claim may thus be adjudicated by those, or the friends of those, accused of violating ICRA. The likely result is obvious.

Any discussion of ICRA’s merits must be informed by a fundamental principle: neither states’ rights nor tribal rights should trump individual rights.