The Iroquois Confederation Constitution: An Analysis

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The Iroquois Confederation Constitution: An AnalysisAuthor(s): Donald S. LutzSource: Publius, Vol. 28, No. 2 (Spring, 1998), pp. 99-127Published by: Oxford University PressStable URL: http://www.jstor.org/stable/3331052 .

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The Iroquois Confederation Constitution: An Analysis

Donald S. Lutz University of Houston

The Iroquois Confederation was not an influence on the U.S. Constitution, but it is worthy of study as an independently developed political system with the oldest surviving constitution in North America. A systematic institutional analysis of the Great Binding Law, the orally transmitted constitution of the Confederation, reveals, among other things: tribal inequality despite their formal equality under a unanimity rule; a high level of responsiveness despite a nondemocratic, elitist method for selecting leaders; many ancillary institutions for achieving a traditional form of consensus rather than simple majority rule; two means of elevating men to the Confederation Council, each a paradoxical blend of the pre political and the post-traditional; the first use of a formal amendment process in constitutional history; and an underlying "code of imperialism "that, together with the second method of selecting Confederation Council members, transformed a defensive alliance into apotent actor in North American history. Overall, the Confederation institutionally approximated an Aristotelian "mixed regime" which, despite its creation under circumstances the Iroquois describe in Hobbesian terms, was quite libertarian.

During the U.S. Bicentennial, when academics and nonacademics replowed virtually every aspect of the American founding, a few nonhistori- ans claimed that the Iroquois Confederation was a powerful influence on the Articles of Confederation, the U.S. Constitution, or both. Historians who looked into the matter quickly concluded that such claims were ill- founded.' Those who sought to include Native Americans in American constitutional history, by framing the matter the way they did, chose the

AUTHOR'S NOTE: The complete, unabridged version of the Great Binding Law, or Great Law of Peace as it is also known, probably exists only in the Iroquois oral tradition still maintained and recited by tribal traditionalists in Canada and the United States. It takes seven or eight days to recite fully. The somewhat abbreviated version of the Great Binding Law used in this analysis, notable for not including the long foundation story, is widely available from a variety of sources and is in the public domain. It can be found, for example, on the documents' webpage of the American Political Science Association along with other major American political documents.

'The most coherent example of the former group is a book written by ajournalist, Bruce E.Johansen, Forgotten Founders: Benjamin Franklin, the Iroquois, and the Rationale for the American Revolution (Ipswitch, MA: Gambit Publishers, 1982). While this book makes a convincing case for Benjamin Franklin's knowl- edge of and respect for the Iroquois Confederation,Johansen's discussion of the Confederation's constitution is selective, and assumes what is to be established-that the Iroquois Confederation was characterized by democracy, equality among the nations, and a structure that paralleled American institutions. For an incisive critique, see Elisabeth Tooker, "The United States Constitution and the Iroquois League," Ethnohistory 37 (Summer 1990): 305-336. The reason for silence on Iroquois influence by historians and political scientists stems from their ability to trace the continuous evolution of American constitutionalism backward from 1787, from document to document, without recurrence to Iroquois or other native American exemplars. See Donald S. Lutz, The Origins ofAmerican Constitutionalism (Baton Rouge: Louisi- ana State University Press, 1988); Donald S. Lutz, A Preface to American Political Theory (Lawrence: Univer- sity Press of Kansas, 1992), especially chapters 3-5.

? Publius: The Journal of Federalism 28:2 (Spring 1998) 99



100 Publius/Spring 1998

wrong grounds for seeking inclusion. The Iroquois Confederation was important not for its direct influence on later American documents, but as an historically important phenomenon in its own right. That is, the Iro- quois Confederation is worth studying as a successful, independent constitutional system that had significant consequences for North American history.

In an attempt to remedy this hiatus in American constitutional history, the present analysis will argue the following propositions. The Iroquois Confederation was based on an oral "text" that was a true constitution in our meaning of the term today.2 As a result, the Iroquois can lay claim to the first constitutional system in the geographical region that is now the United States of America. This orally transmitted constitution represents perhaps the only sure example we have of the transition between traditional societies maintained entirely through custom and ones maintained through a formal governance system with a specialized political class. An- thropologists have speculated about the historical transition between "prepolitical" societies and the emergence of the state, but the Iroquois Confederation provides a documented example of how the transition may have occurred, and provides some insight into why the transition exemplars have not survived into historical times. One possible conclusion, in this last regard, is that although the constitution of the Five Nations allowed the Mohawk, Seneca, Onondaga, Oneida, and Cayuga to coordinate their actions to the extent that they had a competitive advantage over other Native Americans, the prepolitical content of their constitution put the Con- federation at a competitive disadvantage with respect to fully constituted societies. The Iroquois Confederation endured so long as it faced only traditional societies, but as certain characteristics of the constitution put them on a collision course with societies that had a more fully articulated sovereignty, the Iroquois found themselves at a competitive disadvantage.

These general propositions will be supported primarily through a careful institutional analysis of the Iroquois Confederation constitution, which they termed "the Great Binding Law." The constitution has several distinctive characteristics that will be enumerated and then discussed in turn through an explication and analysis of the constitution as a whole. What follows, then, is in line with what has been termed the "new institutional- ism" in political science. As such, it will not be possible to include, or even begin to convey, the richness of Iroquoian culture that underlay and ani- mated the Confederation's operation. However, if the Iroquois

2Because the constitution was, for most of its history, oral rather than written, we must rely on transcriptions. Several competing versions were written down at different times, although the variation in content among these different versions in the part of the text that most concerns us is not great. How- ever, all of these transcriptions contain anachronistic terms that reflect some contamination by the tran- scribers. The version used here is that recorded in 1915 by Arthur C. Parker, a Seneca and anthropologist, as published in Bulletin 184 by the University of the State of NewYork in 1916. It has the least number of obvious anachronisms, and has the further virtue of numbering the provisions for ease of reference. It is also the most widely used version.



The Iroquois Confederation Constitution 101

Confederation is to be added to our canon of original and important political systems, we must begin by laying out the institutional system re- vealed by the Confederation's Great Binding Law. Later work will have to elucidate the manner in which these institutions were grounded culturally, internalized, and played out in detail.

For this reason, this article will use what amounts to the "short" version of the Great Binding Law which omits much of the founding myth and cultural rituals that functionally amount, in constitutional terms, to a pre- amble and a code of law.' In this regard, we are engaged in typical institutional analysis which holds in temporary abeyance discussion of the political effects of language, custom, myth, history, and socialization in order to focus on institutional design. While the Iroquois system relied more on these temporarily ignored aspects of political life than most, all social science analysis tends to hold combinations of these factors in abeyance in a given analysis so as to focus on what is of particular interest. Methodologically speaking, this is an attempt not to lose sight of the forest for the trees.

One distinctive characteristic of the Iroquois Constitution was that, contrary to the Confederation's reputation, its primary purpose was to maintain peace among its members, not to coordinate outward action. This had the double effect typical for confederations; it minimized internal conflict and also created the potential for organizing against common threats. A second distinctive characteristic, also contrary to the Confederation's popular reputation, is that it was not composed of equals. The Confederation's decisionmaking process, by requiring unanimity, did provide each member nation an equal opportunity to veto a proposal, but when it came to any proposal that did pass, the decisionmaking process, as well as other aspects of the constitution, made the Mohawks4 the first among equals. The sig- nificance of Mohawk preeminence remains murky, although it stemmed at least in part from their having led in the Confederation's creation.5 A third distinctive characteristic, once again contrary to commonly held views on the Confederation, was a nondemocratic means for selecting Confedera- tion leaders, which also did not provide any sure political means for their removal. The elaborate, yet clearly nonpolitical, customary means of removal from office, as with all of these characteristics, reflects the halfway status of the Confederation between a prepolitical and a fully political society. A fourth distinctive characteristic was an unusual provision that

sOnly in this decade has a complete, reliable text become available. See Hanni Woodbury, ed. and trans., with Reg Henry and Harry Webster, Concerning the League: The Iroquois League Tradition as Dictated in Onondaga, ed. John Arthur Gibson (Winnipeg, Manitoba: Algonquian, and Iroquoian Linguistics, Memoir 9, 1992). Over 700 pages long, and very difficult to read and reproduce, this definitive version does not alter any of the institutional description under analysis here.

4We now remember this tribe as the Mohawk, which means "cannibal" in the Algonkian language, obviously a pejorative name used by other tribes. They knew themselves as the Canienga, or People Keepers of the Flint. We will use the name Mohawk because that is how their fame comes down to us and the name is not pejorative to us.

5Dean R. Snow, "Mohawk," Encyclopedia of North American Indians, ed. Frederick E. Hoxie (New York: Houghton Mufflin, 1996), pp. 390-391.




permitted adding members to the Confederation Council who excelled in virtues defined by the shared culture, but particularly those who distinguished themselves in war. The Council therefore tended to be expanded by the introduction of members whose proven inclinations supported an aggressive agenda, and who could not be removed from office. A fifth distinctive characteristic was a set of provisions that not only laid out a policy of defensive imperialism but also institutionalized and justified wars of annihilation on defensive grounds. Together, these characteristics resulted in spectacular success for the Confederation for over a century, but its success also attracted European attention and drew it into alliances which, in the long-run, made the Iroquois, who were British allies during the American war for independence, a prime target for neutralization by the United States.

THE TRANSITIONAL NATURE OF THE CONSTITUTION

The Confederation originally consisted of five "nations" (Provision 1), although the nations are not listed but introduced by name in later provisions. We know from other sources that the five nations shared a common heritage, but in Provision 2, we are introduced to a highly political rendi- tion of their shared myths, customs, and traditions. In effect, the constitution rested on a founding or refounding myth that simultaneously addressed the organic sociocultural connections between the tribes or nations and the contractual nature of the Confederation constitution that generally trumped the cultural connections.6 The founder, Dekanawidah, planted the "Tree of Great Peace" (also called "The Tree of the Long Leaves"), the symbol for the Confederation, under which the five nations were to find shelter. Provision 2 speaks of the "Great White Roots" from this tree growing north, south, east, and west to connect the nations in the Confedera- tion. This organic metaphor is fairly typical of traditional societies that wish to characterize their sociocultural grounding. However, Provision 2 also contains the remarkable idea for a traditional society that individuals and nations outside of the Confederation "may trace their roots to the Great Tree," and thereby come under the shelter of the Confederation not by joining the culture but by making a "promise to obey the wishes of the Confederate Council." The explicitly political nature of the association described in the Confederation's "Great Binding Law" (Provision 6) moves it from the status of a shared myth to that of a constitution and allows the addition of future members on purely political grounds through what amounts to a political compact.

6In at least one translation, the association of the Five Nations is referred to as a "league," while in others, it is called a "confederation." Both terms are anachronistic with respect to the historical era and original language, but in terms of describing the reality of the association, "confederation" is probably the most accurate term. A "league" usually implies a political agreement for dealing with problems external to its members.




Another aspect of the Great Binding Law that makes it constitutional is that the title borne by each sachem on the Confederation Council could not "be carried into the grave" (Provision 34). That is, political power rests not on personal attributes, but on occupying a position that does not belong to the holder, and that will become vacant after he dies or is removed. The Confederation Council, and the positions that it comprises, are thereby institutionalized through the systematic transmission of rank to those holding what amounts to a political office, and on this vital political principle the life and strength of the Iroquois constitution will depend. Generally speaking, Native-American societies, including the other Iroquois-speaking tribes nearby, had chiefs whose title followed them into the grave, hence, authority was not institutionalized. This simple but effective innovation distinguished the Iroquois Confederation from the confederacies common among other Native Americans. Each tribe or nation in the Iroquois Con- federation also had a war chief whose title did follow him into the grave (Provision 35); so once more we have a blend of traditional prepolitical with political institutions.

As is often the case with early constitutions, the provisions in the Great Binding Law of the Iroquois Confederacy cannot be analyzed provision by provision because the structure is not always laid out according to sequen- tial institutional logic. In part, this is because the sociocultural basis of the Confederation is interspersed among provisions describing decisionmaking institutions (e.g., Provisions 18, 21-23, 26-34, 42-46, 50-51, 55-58, 60-72, and 99-117). Still, even though at least 50 percent of the document details the shared sociocultural basis of the Confederation, the Great Binding Law rests on an explicitly political grounding that, in effect, turns the customs it delineates into laws as part of a shared legal code.

The central political institution of the Confederation is a Council composed of fifty sachems from the five tribes.7 The Great Binding Law contains no statement of apportionment for the sachems, although we know from other sources that the Onondaga had fourteen; the Cayuga, ten; the Mohawk and Oneida, nine each; and the Seneca, even though the most numerous nation, had only eight.8 However, given that the Great Binding Law required that the sachems from each tribe or nation be unanimous before that nation could cast its vote, and that each nation have only one vote, the number of sachems a nation had did not advantage or disadvantage any of them.

'The word sachem has been translated a number of ways, including "lord," but almost every English term, like this one, introduces unwarranted European connotations. Translated literally, sachem means "keeper of the peace," and since the primary function of the Confederation Council was to end blood feuds and maintain peace between the five nations, it seems appropriate to retain the word untranslated.

8The number of sachems was not in proportion to the population of their respective nations. Al- though the matter of numbers is at best approximate, the tribal populations are usually described by the following ratio: Mowhawk-3,000; Oneida-1,000; Onondaga-3,000; Cayuga-2,000; and Seneca-7,000. The precise numbers are not as important here as the approximate ratio of tribe sizes. See G. Elmore Reaman, The Trail of the Iroquois Indians: How the Iroquois Nation Saved Canada for the British Empire (New York: Barnes & Noble, 1967), p. 16.




The unanimity rule is a direct consequence of traditional Native- American inclinations. Given that no tribe would join another unless it wished to do so, all joint Native American activities were, by definition, unanimous by tribe. Also, with few exceptions, tribal societies were consensual in their decisionmaking and lacked strong centralized leadership because the tendency was to divide matters according to a specialization principle. For example, one person might preside over tribal deliberations, another might lead the hunt, a third might lead the attack, a fourth might oversee the slaughter of big game, and a fifth might oversee its distribution. Tribal societies constantly leaned toward consensual decisions rather than simple majority rule. However, when the traditional consensual approach is focused on a set of leaders who occupy institutionalized positions, and who together are able to deal with matters that traditionally are otherwise dispersed in a specialized fashion among many individual tribal members, we have a new situation with profoundly different possibilities.

The unusual and decisive innovation of the Iroquois Confederation, then, is not the unanimity rule that receives so much attention, but the use of a traditional unanimity rule in an enduring political institution-a specialized decisionmaking body. Aside from prohibitions on Confederation Coun- cil involvement in internal tribal matters, the Confederation constitution is silent on the scope of Council competence. Therefore, one crucial but universally ignored aspect of the constitution is that in the absence of such restrictions, and by listing cultural mores in the constitution so as to render them laws, the amendment process established in Provision 16 allows the Confederation Council to alter shared tribal customs. In this and other ways, the political relationship is able to trump relationships based on custom, and the Iroquois under the Confederation did not hesitate to use the Great Binding Law in just this way-as a constitution. For example, Provi- sion 108 through Provision 117 describe funeral rites that drastically alter the traditional customs of Iroquois-speaking peoples. Provision 100 through Provision 107 retain old customs but place the new Confederation Council in the position of conducting these rites. Most important, the designation of royaneh families who own the tide for each sachem's seat, while utilizing traditional matrilinearity as part of the process, in effect "hijacks" tribal customs for political purposes.9 Until the Confederation was established, there was no Confederation Council of sachems, and thus no need for these 50 royaneh families, who become in their entirety creations of the political system. The constitution does not identify these families, but they were designated in some unknown way at the time the Confederation was adopted. These examples illustrate how by significandtly altering customs, retaining

9Royaneh is sometimes translated as "royal" or "noble," but because "royal" and "noble" both carry Euro- pean connotations that might warp our perception of this family status, we will use the Iroquois word.




old customs but placing them under Council control, and by creating new customs wholesale, the Iroquois Confederation constitution evolved Iroquois tradition in a way that placed the Confederation in general, and the Confederation Council in particular, at the center of their life.

MOHAWK PREEMINENCE: A PRIMARY CONSEQUENCE OF THE UNANIMITY RULE

Although a superficial reading of the constitution seems to indicate that the Confederation dispersed power to create a balance among the five nations, a more careful reading implies Mohawk preeminence, with sufficient protection granted the other tribes to make it worth their while to remain in the Confederation despite this inequality. These relationships emerge through an examination of the decisionmaking process used in the Con- federation Council under the rule of tribal unanimity.

In the Council, the Mohawk and Seneca sat on one side of the fire in the Council lodge; the Oneida and Cayuga sat on the other side (Provision 5). The Onondaga were divided into "two bodies," one on either side of the fire, each of which deliberated independently once the matter reached them (Provision 12).1o The Onondaga served as hosts for the council meetings in several senses. The meeting place, or Confederation fire, was on their land (Provision 1). It was theirjob to maintain the premises between meetings (Provision 4), to call the nations together if they deemed a request for such a meeting sufficiently strong (Provision 3), to open the meetings with a greeting and blessing and to close the meetings similarly (Provision 7 and Provision 8), to maintain the Council Fire during meetings (Provision 3), and to announce the general subject for discussion at the beginning of the meeting (Provision 3). They were also, like good hosts, supposed to wait until the other tribes deliberated and reached their decisions before delib- erating themselves (Provision 10).

The unanimity rule of the Great Binding Law with respect to the Five Nations (Provision 11 and Provision 12) as well as to the sachems within a given nation (Provision 10 and Provision 12) gave the Mohawk a decided advantage. All matters were supposed to be deliberated upon first by the Mohawk (Provision 9 and Provision 10). No member of any other nation could intrude in their deliberations with statements or questions (Provision 13). An interesting detail is that only Mohawk deliberative procedures are fully elaborated. The nine Mohawk sachems are divided

"?Some observers, like BruceJohansen, see in these two sides the origin of bicameralism in U.S. Con- stitutionalism. If one grants, for the sake of argument, that the Iroquois Confederation did inspire later American political forms, then one has to account also for the Onondaga who served as a third decisionmaking body. It is difficult to see how we went from Iroquois tricameralism to unicameralism in the Articles of Confederation and then to bicameralism in the U.S. Constitution. If one sees an incipient Supreme Court in the role of the Onondaga, then one has to look for an American practice of making the Supreme Court part of the legislature.




into three "parties."" Each party is actually a clan. Two of these parties, the Tortoise and Wolf clans, deliberate independently; while the third party, the Bear clan, only listens and makes sure that there are no "errors" and that no "proceeding is irregular." If the first two parties each reach unanimous decisions without errors or procedural irregularities, the third party among the Mohawk "shall confirm the decision" (Provision 5). The care taken to structure and describe the Mohawk deliberative process is the first clue that the Mohawk contribution to Confederation decisions had a special status. After the Mohawk reached a decision, the proposal was con- veyed to the Seneca, who then deliberated under the same nonintrusion rule (Provision 5). The question, once decided upon by the Seneca, was then transmitted by them across the fire to be separately deliberated upon by the Oneida and the Cayuga. Because Confederation decisions required unanimity, all other tribes were put in the position of either agreeing or disagreeing with the Mohawk, who in effect framed the question, proposed the solution, and made it impossible for any other tribe to frame an alternative. The order in which the tribes were to deliberate, therefore, implied a descending order of legislative power; the further down the list a tribe was in the order of deliberation, the harder it was for that tribe to affect the outcome. The Onondaga came last.

After the Oneida and the Cayuga reached their respective decisions, the matter was passed to the Onondaga, who, after their deliberations, privately reported their position and that of all the other nations back to the Mohawk sachems. The Mohawk then informed the entire Council of the decision, a symbolic status that again points to Mohawk preeminence (Provision 10). If there was a split between the "two sides," the Onondaga could create a majority by voting either way; but without unanimity, a decision had not been reached, so the Onondaga vote was meaningless. Even if the Mohawk were in the minority arrayed against the other four nations, according to Provision 6 their rejection was sufficient to block the proposal. Given that unanimity was required anyway, Provision 6 was redundant and served only to underline the superior status of Mohawk opinion. Nevertheless, if the Onondaga reached a conclusion at variance with that reached by the other four nations, the matter returned to the "two sides" to go through the process again. If the other four nations still concurred, then the Onondaga were required to agree (Provision 11). In effect, the Onondaga were forced to produce unanimity by going along with the others, or else to have their opinion lose anyway. This put the hosts, the Onondaga, in the position of having the least influence on the outcome. Onondaga status as the one nation whose opinion could be ignored despite the unanimity rule

"This division represents the three clans within the Mohawk tribe, each clan comprised of three ohwachiras. The three Mohawk clans were also found in all of the other tribes, and were the only clans to span all five nations.




contrasts sharply with the redundant assurance of Provision 6 that Mohawk opinion could never be disregarded.

Perhaps for this reason, the Onondaga were given a number of special, honorary roles to play as a kind of compensation. The Council met on Onondaga territory; the Onondaga were the "firekeepers," or hosts, during Council meetings; three honorary positions were granted to them alone, and the positions carried titles-Adodarihoh (the great convener of meetings and introducer of matters), Hononwirehtonh (the great listener and confirmer of decisions), and Skanawatih (the great war chief who convenes and coordinates the five tribal war chiefs if and when the Five Nations go to war together). The status of the Onondaga is anomalous. On one hand, they have the least power to affect matters, especially when compared to the other two "brothers"-the Mohawk and Seneca. On the other hand, they are respected as especially calm, fair, judicious, and pacific. Their general reputation for peacefulness and lack of aggression, even outside of the Confederation, may be the basis for their position within the constitutional system. Overall, then, we have two nations with junior status (the Oneida and the Cayuga), one senior tribe that is given an honorific position with the least ability to affect decisions (the Onondaga), and two senior nations that initiate and define the matters to be discussed, which, under the unanimity rule, makes them legislatively dominant-the Mohawk and the Seneca.

The process of decisionmaking in effect implies a "special relationship" between the Mohawk and the Seneca, an implication supported by the constitution's referring in Provision 9 to "the two combined bodies of the Confederation's sachems." That is, even though each tribe was supposed to deliberate free from interference by any other tribe, the decisions reached by the Mohawk and Seneca were viewed as, in some sense, ajoint one that was then passed to the "other side," comprised of the Oneida and the Cayuga. This implies an assumption of close cooperation between the two tribes on each "side," and therefore a natural preexisting alliance between the Mohawk and the Seneca. The "second side" would always face two tribes already in agreement, because if the Mohawk and Seneca did not agree, the proposal was dead under both the unanimity rule and Provision 6 that required Mohawk approval of all matters. There was no reason even to refer the matter to the other side. The internal Council procedures under- cut equality among the nations, and left the Mohawk first among equals in more ways then one, and put the Mohawk and Seneca together in the legislative driver's seat.

The "special relationship" between the Mohawk and the Seneca is an unexpected one for at least three reasons. First of all, the Mohawk and the Seneca were geographically at opposite ends of the Confederation. The distance was considerable by the travel standards of the day, and it is




difficult to see why these two tribes would have anything but the most distant relationship. Second, in terms of the Iroquois dialects found within the Confederation, the Mohawk and the Seneca were the most far removed from each other. The Mohawk dialect was closest to that of the Oneida who lived on lands immediately adjacent to theirs, just as the Seneca spoke the same dialect as the Cayuga who lived immediately adjacent to them."2 Third, as geographical proximity might imply, the Mohawk and the Oneida had the closest clan structure; each was comprised entirely of the same three clans, just as the Seneca had almost the same eight-clan structure as their neighbors, the Cayuga. For these reasons, if there was to be a special relationship, it would make more sense to expect one between the Mohawk and the Oneida, as well as one between the Senaca and the Cayuga, with each special relationship on either side of the fire. The Onondaga position as "balance" between the two sides would also follow from their living in the geographical center of the Confederation." However, geopolitical considerations made the Mohawk-Seneca relationship compelling and logical. The Seneca nation comprised almost half of the Confederation's population, and was more than twice the size of the Mohawk nation. Together, the Mohawk and the Seneca had about two-thirds of the total population. The special relationship made sense in terms of who would bear the brunt of combined defense as well as in terms of which tribes needed to be given preference if they were to join the Confederation. The special relationship, as well as Mohawk preeminence, also makes sense in terms of the historical situation.

During the late 1500s, the Mohawk were situated north and east of the confluence of the Hudson and Mohawk Rivers under strong military pres- sure from the Algonkian tribes to the east. Some describe the Mohawk position as desperate. Whether this is true or not, the Mohawk found themselves in a geographically strong defensive position on the high banks of the Hudson and Mohawk Rivers, but outnumbered by the Algonkian by at least six to one. A link-up with the Seneca gave the Mohawk a much stronger defensive posture by securing their rear and flanks, as well as the means to successfully turn the tables on the Algonkians by more than tripling their numbers. Bringing in the intervening tribes, especially the Onondaga, was a definite bonus, and the Oneida were already a reliable ally. The Mohawk had the strongest reason for forming the Confederation, and an alliance with the Seneca served them more than anyone. Mohawk preeminence would seem to reflect their strong initiatives in forming the Confederation, and their special relationship with the Seneca was required strategically because the Seneca would not join if their numerical superiority was not

'2Lewis H. Morgan, League of the Ho-De-No-Sau-Nee or Iroquois (New York: Corinth Books, 1962 [originally printed in 1851]), p. 62.

"The Iroquois tended to recapitulate the basic facts of their existence in the design and construction of their houses as well as in that of the Council meeting lodge, so these musings are not irrelevant.




recognized in some material way. Also, because the Confederation would give the centrally located Onondaga security in every direction, they might have been willing to take an honorary but subordinate role.

There is evidence elsewhere in the constitution both for the unequal status among nations and for a special relationship between the Mohawk and the Seneca. Provision 32 says in part, "If the Three Brothers the Mohawk, the Onondaga, and the Seneca-should lose one of their sachems by death, the Younger Brothers-the Oneida and the Cayuga-shall come to the surviving Lords of the Three Brothers on the tenth day and console them." There are not three older brothers, but "three brothers." Other provisions reinforce the junior status of the Oneida and Cayuga. For example, Provision 14 says that there should be a speaker appointed every day by the Council. A speaker may be reappointed the next day, but the term is for a day at a time. Provision 14 also says that the speaker must be Mohawk, Seneca, or Onondaga and therefore cannot come from one of the younger brother nations. On the other hand, the Iroquois Confedera- tion gave these younger nations the ability to veto proposals in the Council, which is in keeping with the communitarianism associated with traditional societies. Still, the Iroquois Confederation was apparently not a confederation among equals, but an association among tribes that viewed each other as similar to family members with unequal status.

Mohawk preeminence is perhaps spelled out most clearly in Provision 6, which says:

I, Dekanawidah [the founder], appoint the Mohawk sachems the heads and the leaders of the Five Nations Confederation. The Mohawk sachems are the foundation of the Great Peace and it shall, therefore, be against the Great Binding Law to pass measures in the Confederation Council after the Mohawk sachems have protested against them. No council of the Confederation sachems shall be legal unless all the Mohawk sachems are present.

It is possible, therefore, to view the constitution as intended to ratify and formalize Mohawk preeminence within a structure that provides means for the other tribes to protect their vital interests, one of which was to tie the aggressive Mohawk to a broader community. One can think of the situation as roughly analogous to the position of France, Italy, and the other western European nations in the late twentieth century, when the Euro- pean Union is seen as a means of tying down a Germany that had proven over the previous century to be too aggressive when allowed to function as an independent entity. The Confederation was a good bargain for all five nations when compared to the costs of continuous military struggle among themselves. The Confederation also multiplied the military force available for the Confederation tribes to maintain regional dominance. In summary,




the Confederation constitution can be considered an alliance between five tribes under a gentle, legalistic Mohawk leadership that did not intrude in the internal affairs of the other tribes.

The Iroquois Confederation cannot be seen as a precursor to the Albany Plan, the Articles of Confederation, or the U.S. Constitution. Not only did none of these other documents require unanimity to approve all proposals, but imagine what would have happened if one of them did require unanimity and Pennsylvania or any other state was told it would be the one state to be ignored if it disagreed with the other twelve, or that one state must always initiate proposals, or that the winning coalition must always include a certain state.

There are other reasons the Confederation constitution cannot be considered a precursor to the U.S. Constitution. It had no executive, and no separate judiciary. The Council exercised both of these functions. It did not, however, deal with internal problems of clans or tribes, nor could it directly affect individual members as can the U.S. Congress. The Iroquois Confederation did somewhat resemble the union of the thirteen colonies under the Articles of Confederation, except for the critical institution of unanimity, but the structure of all confederations before and since bear a strong resemblance to the Articles of Confederation. A confederation has a natural and logical political form that has been independently developed in many places, including among Native Americans. One might see the closest parallel to the Iroquois Confederation in the security council of the United Nations, although the hereditary basis of the sachems' seats perhaps makes the British House of Lords a more apt comparison for the Confed- eration Council. The major difference between the Iroquois Confedera- tion and later American constitutions, however, was its reliance on a traditional, consensual-oligarchic system of selecting leaders instead of a system of majority rule through elections by a broadly defined suffrage. The Iroquois consensual method is not being described here as inferior to, but as different from, democracy as defined and practiced in western democracies.14

"DEMOCRACY" WITHIN THE CONFEDERATION

If the assumption of equality among the tribes is not sustainable, neither is the assumption of democracy. A superficial reading seems to indicate that each nation was democratically organized internally, but a more careful reading shows a traditional, nondemocratic system both internal to each tribe and across the Confederation. Since the Confederation Council of

"4With few exceptions, the anthropological literature concurs with this assessment. For the lack of influence of the Iroquois Confederation on the U.S. Constitution and related documents, see, for example, Tooker, "The United States Constitution and the Iroquois League," pp. 305-336; Richard Aquila, The Iroquois Restoration: Iroquois Diplomacy on the Colonial Frontier, 1701-1754 (Detroit, MI: Wayne State University Press, 1983), especially pp. 30 and 34.




sachems was the central political institution, the selection of sachems was critically important, and requires some explication. The Iroquois used matrilineality as well as their status to select sachems (Provision 44). The women of only 50 families were designated royenah and could select a sachem. That is, the women of a given family were considered to "hold the title" of a given sachem, and were responsible for initiating the filling of that position. A quick reading seems to indicate that the women of a royaneh family simply selected the sachem, but the process was more intricate.'5 First of all, every new sachem had to be approved by the Council of that nation (Provisions 18, 19, 20, 22, 25, and 34 each deal with a different circum- stance leading to the need for a new sachem). Under some circumstances, the new sachem could be selected by the Confederation Council, or the Confederation Council could assign the title to a new family (Provision 47 through Provision 49) primarily when the women in a family become extinct. However, these provisions deal with exceptions and extreme cases.

The normal selection process is detailed in Provision 54. Although every new sachem had to be approved by the council of the nation to which he belonged, this was more in the way of a formality, or perhaps a courtesy. The essential path for selection began with royaneh families, but then pro- ceeded through the clan, not the nation or tribe. When a sachem died or for some other reason had to be replaced, all the royaneh families in the clan of the family holding that particular title gathered to select a successor from among their sons. Provision 54 thus tells us that only royaneh women with sons could take part in the process; that while one family held the specific title, all royaneh families in that clan took part in the selection; and that the new sachem could come from any royaneh family in that clan. The only other restriction was that the nominee could not be the father of an already sitting sachem. If the women from the royaneh families in that clan were unanimous in their nomination, it then went to the men of the clan's royaneh families. If the men disapproved of the women's nomination, they were to nominate someone from among themselves. Unless the men and women of the royaneh families of that clan could unanimously agree on which nominee to forward, the sitting sachems from that clan made the final selection. If the men and women did unanimously nominate one man, his name was forwarded to the royaneh families of their sister clans in that nation. If they also approved, then these other clans forwarded the name to the sachems of their own clans, who, upon their approval, recommended the name to the other sachems on the Confederation Council for approval.

15Observers differ on important details when it comes to the role of royaneh women. Some report that all of the married women in a royaneh family together made the selection. Others report that the matri- arch of each royaneh family made the selection. For the latter view, see Elisabeth Tooker, "Women in Iroquois Society," Michael K Foster, et al., eds., Extending the Rafters: Interdisciplinary Approaches to Iro- quoian Studies (Albany: State University of New York Press, 1984), pp. 109-123, especially p. 114. In one sense, this divergence of opinion is important, because the latter view implies something closer to a true matriarchy. However, for our purposes, we will be more interested in the proportion of families designated as royaneh.




Although this process gave a role to women, at least in the royaneh families, and also made female children in such families valued, it looks as though a traditional matrilineal society was subtly altered by a political process that generated a male political oligarchy. The political process made matrilineality somewhat vestigial, and more of a means to initiate selection rather than to determine who held a political position. In other words, the relative advantage enjoyed by the Iroquois Confederation over other tribes rested on a form of organization that was made possible by altering the operation of matrilineality so that it was blended with the political organization. The Iroquois Confederation was politically a union of tribes, but socially a combination of clans.

Even during the initial stage of sachem selection, the men were as important as the women, and because the process moved quickly to a group of clan sachemwho shared more with the royaneh males in their respective clans than with the royaneh females, the males in the clan were influential from the start. The Confederation Council had ultimate power of appointment, either sooner as a result of disagreement between the royaneh men and women of the clan, or eventually as the normal process reached its conclusion. The overall process could be viewed as consensual. The process could also be viewed as one generating consensus among an oligarchy dominated by males. There is no doubt that certain women played an important but episodic role in the political process. However, the Confederation constitution, in its blend of traditional matrilineal customs with more male-oriented political institutions, again appears to represent a transitional stage between past and future modes of governance.

That the Iroquois were engaged in a transition from traditional matrilinearity to a political state is also reflected in their introduction of a single male god, the Holder of the Heavens, to replace a pantheon of dei- ties typical of the other Iroquois-speaking tribes outside of the Confedera- tion (such as the Huron) who underwrote matrilinearity by giving special status to a female deity frequently associated with the moon or with the earth. The Confederation constitution introduced cultural and religious innovations that were congruent with and undergirded the political innovations. Finally, in a long set of provisions discussing the symbolism of the Confederation, the wampum belt of the Confederation is described as having many white and black beads that represent the people of the Five Nations (Provision 59). This wampum belt

...is a token that the men have combined themselves into one head, one body, and one thought, and it shall also symbolize their ratification of the peace pact of the Confederacy, whereby the sachems of the Five Nations have established the Great Peace. The white portion of the shell strings represent the women and




the black portion the men. The black portion, furthermore, is a token of power and authority vested in the men of the Five Nations.

Provision 59 later says that if the sachems ignore the complaints of the women in their royaneh families, the matter can be taken to a "General Council of the women of the Five Nations." If after three warnings from this body, the sachems do not respond, the matter goes to the Council of the Men of the Five Nations. If the sachems still do not respond, the men may depose the erring sachem or sachems formally. If this does not work, the men of the tribe may club them to death. Once again, the women have a role, but the men have the power.

Each tribe had a war chief, but his selection began with one "head" royaneh family that owned the tidtle to the position (Provision 37).16 The war chief served as a messenger for the opinions, requests, and demands of his nation to the Council. War chiefs attended Council meetings, but could not take part in the discussions. Each represented a tribe in peacetime, primarily to carry messages, and led the men of that nation in time of war. In summary, they were traditional tribal chiefs with the added role as liaison between their tribe and the Confederation Council.

Because they selected all tribal and Confederation leaders, it is worth asking what percentage of families were royaneh. Among the Iroquois, the individual was part of a nuclear family, which belonged to a household, which lived with other households in a long-house, which constituted part of a clan, which belonged to a moiety, which made up a tribe or nation, which in turn was part of the Confederation. Within this complex, overlap- ping set of relationships, a royaneh would be a family unit defined by a "fireside." That the number of fireside families who owned the title of a sachem constituted a small percentage of families is obvious, and will be estimated in a moment. Not obvious is the distribution of these families among the clans. The constitution mentions 14 clans, but there is evidence that most of the sachems were selected by only three clans-the Turtle, Bear, and Wolf- which also happened to be the only three clans present in the Mohawk and Seneca nations. Morgan counts 36 out of the 50 sachems as from these three clans, the only clans found in all five nations.'7

If we make the very conservative assumption that all fourteen clans had the minimum of two ohwachira, and every ohwachira had an average of six firesides, there would be 168 families. If 50 of these families were royaneh, then about 30 percent of the fireside families participated in selecting all leaders. However, this would give the Five Nations together a population

'6On this point see, for example,J. A. Noon, Law and Government of the Grand River Iroquois (New York: Viking, 1949), p. 29.

"Morgan, League of the Ho-De-No-Sau-Nee or Iroquois, p. 212. Morgan's data, like much of what exists on the Iroquois, is of too recent vintage to be trusted when attempting to analyze the Confederation's structure a century earlier. Although there is no reason to believe that the distribution of sachems by clan was significantly different in the 1700s, Morgan's figures can be considered only suggestive.




of at most 2,000 people, and the example is used only to illustrate that even under the most radically conservative assumptions, royaneh families had to be a distinct minority. Given that the Iroquois Confederation could consistently put at least 2,300 braves into the field between 1660 and 1684, and one count in 1689 was 2,800, conservative calculations would indicate a total population of at least 14,000 for the combined nations. The royaneh families thus probably constituted less than 5 percent of the fireside families.'8 The actual numbers are not important for our analysis, because even the most conservative population estimates produce a very small percentage of royaneh families, and these families together selected all of the leaders.

The Confederation constitution reflects a serious attempt to make the selection of leaders consensual, but it was consensual approval of leaders drawn from among a very small percentage of the families, which is the major point here. To complete the picture, each of the Five Nations had one "head" royaneh family that selected from among their sons the war chief of their nation (Provision 36). Those searching for a democracy as defined today will have to look elsewhere. Democracy as a political method was designed by the Greeks to replace traditional, tribal, and/or clan-based decisionmaking, and the difference between prepolitical tribal customs and the formal institutions that define democracy, centering around elections and voting by individuals separated from clan and tribal identification, is not trivial."9 The claim that the Iroquois were democratic arises from con- fusing one necessary part of democracy--that it must be reasonably responsive to the citizens' wishes over a long period of time with what is sufficient for defining a democracy. There is more than one way to achieve leadership compliance with members' wishes, and one of them is democracy-- which uses universal adult participation in free and competitive elections.20 The Iroquois had developed "institutionalized" political offices that were separate from their temporary holders, but this political, nontraditional institution was blended with a clan-based, traditional method of selection. The Confederation Council, it must be concluded, was essentially a hereditary oligarchy whose members were identified and selected by means of a process that was somewhere between traditional tribalism and institutionalized democracy.

18The matter of tribal populations is still a subject of controversy. However, most commentators put the Five Nations of the Iroquois at about 12,000-16,000 in the 1640s. The Huron tribes totalled perhaps 35,000; the Algonkian tribes south of the St. Lawrence River, 25,000; the Tobacco tribes, 15,000; and the Neutrals, 12,000. See, for example, Aquila, The Iroquois Restoration, who says the Five Nations' population never exceeded 15,000 during most of the seventeenth- and eighteenth-centuries, pp. 30 and 39; also see, Bruce G. Trigger, The Huron: Farmers of the North (NewYork: Holt, Rinehart and Winston, 1969), especially pp. 11-13 and 18-19. Trigger argues for a probable Iroquois population of 18,000-20,000 before 1640.

"The continuing distinction between democracy and tribalism is frequently addressed by political theorists. See, for example, Dennis C. Mueller, Constitutional Democracy (New York: Oxford University Press, 1996), p. 44.

2"See, for example, Arend Lijphart, Democracies: Patterns of Majoritarian and Consensus Government in Twenty-One Countries (New Haven: Yale University Press, 1984), especially Chapter 3.




OTHER "DEMOCRATIC" INSTITUTIONS

The Confederation Constitution describes a number of assemblies that seem to indicate a kind of popular sovereignty with democratic implications. Each nation had a council of men and a council of women. Their concerns were transmitted to the Confederation Council by the nation's war chief. The men and women could form ajoint Council of the Nation, but once again the war chief acted for them. The women could upbraid leaders, but only the council of men could replace a war chief. Although these councils are mentioned in the Confederation Constitution, they are tribal councils, not Confederation institutions. Here, as in Confederation institutions, the black wampum representing the men also "symbolizes the power to execute," a power that rests with the men (Provision 59).

There is similarly a Great Council of the women of the Five Nations and another one composed of the men. These councils may be assembled at times of great importance or danger to advise the Confederation Council (Provision 96). There is no provision for enforcing their opinion beyond the clubbing to death by men of the Great Council of Men as described in Provision 59, although it was unlikely that strong opinion, widely held, would be ignored. The lack of a politically institutionalized voice for these councils beyond the extreme measure of clubbing points to their being advisory. Very likely, these meetings were used by the sachems to explain the situation rather than to seek binding advice.

There is provision for meetings of the Council of Nations, ajoint meeting of the Great Councils of both women and men, in times of great danger, and the Confederation Council is supposed to "confirm" the opinion of the people (Provision 93). This is the closest the constitution comes to describing a democratic body. However, there is no provision for calling the Great Council, counting votes, or enforcing their opinion. When con- trasted with the care taken to describe the decisionmaking process in the Confederation Council of sachems, the lack of specificity implies either a relatively infrequent use of this meeting of the people, a tendency for such meetings to be consensus-building, or both. That there is no provision for these united councils of all the people to replace any sachems is also instruc- tive. Aside from clubbing by the men of the Great Council of Men, sachems could be replaced by the action of the five members of the Council of War Chiefs, which was not a democratic body because each chief was selected by one family in each nation. Far more important than any of these gather- ings was an institution known as the Pine Tree Chiefs. The Pine Tree Chiefs constituted an extraordinary intrusion of traditional values on the political institutions of the Confederation, an intrusion that had significant consequences.




THE PINE TREE CHIEFS

Even the most procedurally oriented political system will seek to place men and women of ability in positions of responsibility. A traditional society values ability but has a broader view of what abilities qualify a person for responsibility than we usually do today. Above all, those who embody or demonstrate superior attachment to the society's core values are accorded status and handed important duties. Provision 35 of the Confederation Constitution is an exceptionally concise and poetic statement of the extent to which the Iroquois valued and rewarded virtue.

Should any man of the Nation assist with special ability or show great interest in the affairs of the Nation, if he proves himself wise, honest, and worthy of confidence, the Confederate sachems may elect him to a seat with them and he may sit in the Confed- erate Council. He shall be proclaimed a "Pine Tree sprung up for the Nation" and shall be installed as such at the next assem- bly for the installation of sachems. Should he ever do anything contrary to the rules of the Great Peace-no one shall cut him down-but thereafter everyone shall be deaf to his voice and his advice. Should he resign his seat and title no one shall prevent him. A Pine Tree chief has no authority to name a successor nor is his title hereditary.

There is no further discussion of this office in the constitution. On one hand, Pine Tree Chiefs are a means of injecting into the major

Confederation political institution men who will embody, reinforce, and support traditional values. As such, Pine Tree Chiefs can be considered a prepolitical institution that avoids or mitigates systematic political processes. On the other hand, Pine Tree Chiefs can be looked upon as a means for avoiding or mitigating the use of residual customary paths for leadership selection. In what is still a putatively matrilineal society, the Pine Tree Chief avoids involving women in achieving his status, as well as the existing clan and tribal structures. From this perspective, Pine Tree Chief looks like a political gambit to create a self-perpetuating oligarchy. None of the elaborate measures designed to keep the sachems reasonably close to popular opinion applies to these sachems. Pine Tree Chiefs can be ignored, but not deposed, clubbed, or "buried." Once elevated to sachem status, a Pine Tree Chief is part of Confederation Council deliberations for the rest of his life. Even if he is ignored, he still gets to speak his mind.

The provision does not spell out very clearly what kinds of ability are enabling for the post. How does one establish that he is "wise, honest, and worthy of confidence?" We can assume that outstanding orators qualified, because the Iroquois valued persuasion through sophisticated rhetoric. Those with shamanistic abilities might also qualify. However, as one reads through the basic values and virtues most valued by the Iroquois,




prominent among them are those attributes demonstrated in combat. It should come as no surprise, then, to learn that the Pine Tree Chiefs were more often than not selected from among outstanding warriors.21

There was no set number of Pine Tree Chiefs, but the more warfare there was, the more Pine Tree Chiefs there were likely to be, and one can easily predict the natural inclinations of a successful warrior when partici- pating in Council deliberations. Pine Tree Chiefs could be expected to support tribal chiefs, who were often termed "war chiefs" as distinguished from the Council sachems who were "peace chiefs.""22 The growing influence of the Pine Tree Chiefs on the Confederation Council was undoubtedly one major reason why the Confederation Constitution changed in emphasis from an inward-looking mechanism for peace to an outward looking mechanism for creating and fielding a highly effective machine for war. This transformation may have been materially assisted by another part of the constitution, Provision 73 through Provision 94, which together with the provisions on adoption (66-70) laid out a coherent set of policies that proved to be highly effective for conducting wars of imperialism.

THE CODE OF IMPERIALISM

The core of what is here termed the "code of imperialism" is found in two provisions.

Provision 80: When the Confederate Council of the Five Nations has for its object the establishment of the Great Peace among the people of an outside nation and that nation refuses to accept the Great Peace, then by such refusal they bring a declara- tion of war upon themselves from the Five Nations. Then shall the Five Nations seek to establish the Great Peace by a conquest of the rebellious nation.

Provision 85: Whenever a war against a foreign nation is pushed until that nation is almost extinguished because of its refusal to accept the Great Peace and if that nation shall by its obstinacy become exterminated, all their rights, property and territory shall become the property of the Five Nations.

Earlier provisions describe how the Iroquois are to attempt persuasion first, and to do so at least three times. The third time, the chief of the other tribe is to be asked three times, and if he still says no, the Iroquois are to spring forward and club him to death. There is a provision describing how to hide forces nearby to start the general attack immediately. Obviously, once the Council commits the Confederation to expanding the Great Peace,

21See Aquila, The Iroquois Restoration, p. 35. 22Annemarie Shimony has a nice discussion of this endemic factional split within the Iroquois leader-

ship in her "Conflict and Continuity: An Analysis of an Iroquois Uprising," chapter nine in Michael K. Foster, et al., eds., Extending the Rafters, pp. 153-164.




the Iroquois will not take no for an answer. If the other nation submits, with or without fighting, it is permanently disarmed, not allowed to have a voice in the Confederation, and subjected to expulsion from their territory if they break the Iroquois laws.

Of special interest are Provision 66 through Provision 70 which lay out in detail the manner whereby an Iroquois could adopt another person, for any reason, from an Iroquois or a non-Iroquois tribe. Adoption served several functions within the Iroquois Confederation, but its most important function was to provide a means for replacing battlefield losses. It was not unusual for Native-American tribes to adopt newcomers, but for the Iroquois it was a matter of policy. As they defeated other tribes, the Iro- quois usually captured a fair number whom they turned into Iroquois. The part of the Confederation Constitution examined here contains no discussion of a resocialization process, but there must have been a very effective one. The bitter wars of the 1600s took their toll. Some observers report that up to 85 percent of the Mohawk were, by 1700, descended from nonconfederation tribes. There is no way to confirm this unlikely number, but the adoption policy served as an effective means to maintain Iroquois numbers.

The code of imperialism, the policy of adoption, the increasing influence of Pine Tree Chiefs, the central position of the Confederation Coun- cil at the apex of an interlocking oligarchy, and the ability of the Mohawk-Seneca nexus either to induce unanimity in Council decisions or to secure peace on their flanks while they pursued their agenda-all con- tributed to a coherent and effective system of governance in the face of a fluid, hostile environment. The result was a constitution matched to the needs, hopes, and character of its people. Like any good constitution, that of the Iroquois carefully and with considerable sophistication created a people, established a government for that people, clearly laid out a set of institutions for collective decisionmaking, identified the means for selecting leaders as well as the qualifications for becoming a leader, laid out the governing principles and values by which the political system was to oper- ate, and provided for future change. A discussion of this last point, the amendment process, brings us back to the Confederation Council in a way that allows us to see more clearly what was both a fundamental strength and a fatal weakness in their constitution.

AMENDING THE GREAT BINDING LAW AND THE PLACEMENT OF SOVEREIGNTY

Provision 16 establishes an amendment process in the following words. If the conditions which shall arise at any future time call for an addition to or change of this law, the case shall be carefully




considered and if a new beam seems necessary or beneficial, the proposed change shall be voted upon and if adopted it shall be called, "Added to the Rafters."

This lovely statement comes at the end of the section that describes the procedures of the Confederation Council of sachems, and reveals a good deal about the Iroquois mind. When a new family was added through mar- riage, the Iroquois practice was to knock down the wall at one end of the long-house and lengthen it by adding room for another fireside. This process, called "adding to the rafters," was an efficient and powerful cultural statement from a culture that among other attributes was highly adaptable. It is a delicious comment on the impact of culture on politics that the ability of the Iroquois to conceive of the very modern constitutional principle of an amendment process before anyone else in the world resulted from the way they built and occupied their houses. Regardless, as was pointed out earlier, the ability to amend a constitution that included a great portion of their cultural mores allowed the Iroquois to evolve customs fairly rapidly through political means if they so chose.

That amendments could be passed by the Confederation Council alone, although undoubtedly with extensive consultation beyond the Council, is no small matter. In this regard, the Confederation Council resembled the British Parliament more than anything evolved by the Americans. How- ever, the Iroquois did not achieve the equivalent of parliamentary sovereignty. Indeed, they never adequately identified the locus of sovereignty, which may be a defining characteristic of transitional documents in general, and confederations in particular.

The Council could act alone, but lacked the ultimate power that defines a sovereign. One could argue that the individual nations were sovereign, but the constitution explicitly contained what amounts to a "supreme law of the land clause" that undercuts this possibility. The laws of an individual nation could be trumped by Confederation laws because a war chief, the highest leader of a nation, could be deposed for acting "contrary to the instructions or against the provisions of the Laws of the Great Peace" (Provision 39). Some have argued that the Iroquois Confederation was a democracy, and that, in effect, the people had sovereignty. This could be true only in a sense so weak as to vitiate the idea of popular sovereignty. There was no way for a people to depose sachems because they had no sure method of enforcement. The Council of Chiefs could depose a sachem, but they were each elevated by a single family. The spectacle of male royahen clubbing a sachem to death might strike some as defacto sovereignty, but this is no more popular sovereignty than resting nomination on the women of 5 percent of the families. Perhaps we can think of the culture as sovereign, but the culture could be and was altered by the Confederation Council. The best that can be said was that the Council stood for sovereignty, but was




not the sovereign. The lack of a settled sovereignty resulted in an extraordinarily high level of liberty, but also resulted in the general political weakness characteristic of confederations.

THE IROQUOIS CONFEDERATION IN HISTORY

One way to understand the consequences of the constitution is to examine briefly the behavior of the Confederation. Contrary to what might be as- sumed, for most of its history the Confederation did not function as a means to coordinate the Five Nations in their dealings with other tribes, but rather as a means of keeping peace among its member nations. This was no small accomplishment because it effectively produced a large pacified area within which these five tribes were safe. By assiduously avoiding intrusion in each other's internal matters and preventing the family and clan feuds that usually occupied tribes in the region, the Confederation produced the important side-benefit of allowing the Iroquois to focus on conflicts with other tribes outside of the Confederation while working from a large, secure base. For almost a century after its founding in or around 1570, the Confedera- tion was only rarely able to unite all of the Five Nations against an external enemy. Yet, by establishing agreements that avoided serious conflicts among the members, the Confederation provided its members with a strong sense of unity, and was potentially the most powerful Indian confederation north of Mexico. The full extent of this potential was generated only when Euro- peans challenged their security.

The initial contact between the Iroquois and the French was marked by French use of firearms. The Iroquois began immediately to obtain firearms, powder, steel knives, and hatchets from the Dutch and the English. They used furs, mostly beaver pelts, for exchange. Beaver on Iroquois land had been trapped out by the 1640s, so they sought beaver elsewhere in an attempt to arm sufficiently to resist the French. Unfortunately, other tribes were in their way. The zone of peace provided by the Confederation allowed the Iroquois to focus on dominating these tribes, primarily other Iroquois-speaking tribes west and north of them, but also as far south as present-day Virginia and Tennessee and as far west as Michigan and Illinois.2" In 1649, in a move to secure their pelt trade, a war party of more than a thousand Seneca and Mohawk moved into the Huron country between present-day Toronto and Georgian Bay to its north. (Remember the "special relationship" between these two nations implied by the decisionmaking procedures of the Council.) The surprise attack, famous for its relentless brutality, shattered the Huron nation. In December 1649, the same Mohawk/Seneca combination utterly crushed the Tionontatis, or Tobacco People, living to the west of Huron territory. During the 1650s,

2"A number of reasons have been advanced for Iroquois aggressiveness toward neighboring tribes. See, for example, James W. Bradley, Evolution of the Onondaga Iroquois: Accommodating Change, 1500-1655 (Syracuse, NY: Syracuse University Press, 1987), especially pp. 108-111.




they destroyed another group of tribes north of Lake Erie, who, because they had tried to avoid involvement in the Iroquois-Huron struggle, where known as the Neutrals. The Eries of western Pennsylvania were then me- thodically dismembered in a four-year conflict. The sensational and, for Native-Americans, unusual destruction of whole tribes culminated in the mid-1670s with the decimation of the Susquehannocks, or Conestogas, of central Pennsylvania.

It is notable that in their wars up to this time, the separate tribes of the Five Nations had generally attacked alone or in combination with one or two other tribes. In an attempt to protect their pelt trade, the French and their Indian allies attempted to counter the Iroquois, but failed to achieve anything beyond inducing the Five Nations to now act in concert. The net effect was to make known to the Confederation the full extent of their combined strength. This strength also became apparent to the British, who enlisted the Iroquois as allies against the French, and then later against the American revolutionaries. This last move sealed the fate of the Iroquois. In the meantime, the Iroquois wars of annihilation had, by starting the westward movement of panicked tribes, dislocated and alarmed tribes even further west, and a chain reaction of fleeing tribe running into tribe eventually cascaded in wars and disruption among tribes all the way out to the Sioux in the Dakotas. The importance of the Iroquois Confederation Con- stitution lies in part, therefore, on its creating a polity that had enormous historical impact on Native-American life over almost half a continent.

The Iroquois then engaged in a twenty-year war with the French that ended in 1701. There was no official victor, but the heavy Iroquois casualties left them a mere shadow of their former strength. During the first half of the eighteenth century, the Iroquois followed a policy of negotiating with both the French and the British in an attempt to use their central location and reputation as a fighting force to carve out a position as the balance of power between France and Britain in order to preserve their hegemony over the western lands they had previously cleansed of other tribes. During these long and complicated political maneuvers, the Iro- quois were divided into a pro-French faction centered around the Seneca and a pro-British faction centered around the Mohawk. Crosscutting this cleavage was another one between pro-war and pro-peace factions.

The peculiar strength of the Confederation was that while it allowed the various tribes, and even groups of individuals, to negotiate in the name of the Five Nations, because the Confederation Council had no power to enforce a common foreign policy among the tribes, the Europeans perceived the Confederation as equivalent to a national government so that each colonial power believed it was simultaneously negotiating with a single entity instead of with one faction or another. Ironically, then, the fact that the Confederation was not what it seemed to be to outsiders allowed it to muddle through to considerable success in these negotiations. In the end,




the French and the British accepted the Iroquois as a neutral balance of power between them. Even the American colonists, Benjamin Franklin among them, misunderstood the extent of Iroquois unity, and idealized the Five Nations as something it was not-a sovereign, unified, and politically coherent entity.

On one hand, then, the Iroquois extracted an unexpected benefit from having their Confederation, a benefit based on European misperceptions. On the other hand, the actual weakness of the Confederation, in the face of these misperceptions, involved the Iroquois in a foreign policy that, while temporarily successful, made them an eventual target for American military force aimed at neutralizing this Native American "power."

If the Confederation did not have the long-term ability to organize against European colonial powers successfully, it did seem to confer a competitive advantage vis-d-vis other Native Americans-an advantage that has not yet been adequately explained. The Hurons, whom the Iroquois decimated, had a confederation that maintained an equivalent peace among four tribes that had at least twice as many people as the Five Nations. Unfortunately, no one transcribed the Huron Confederation's oral constitution, so we have no way to compare the two confederations in order to determine the extent to which Iroquois political organization conferred some advantage. In many respects, the Huron look like copies of the Iroquois. The Huron Confederation spoke an Iroquoian language, and had a very similar culture. Bound by a confederacy that looks at least superficially similar to that of the Iroquois-there were the same hereditary sachems, calm and ritualized rules of deliberation, concern for internal peace, and even the equivalent of Pine Tree Chiefs-the Hurons maintained an equivalent peacefulness in what may have been the most densely populated area in that part of the continent.24 They were not obviously disadvantaged vis-da-vis the Iroquois, but had the advantage of a much larger population. They also had a better geographical position from which to obtain beaver pelts and trade with the French for weapons, which is precisely why the Iroquois felt they had to eliminate the Huron. Some have argued that the Iroquois advantage lay in having more firearms than their neighbors, but this does not explain why the Iroquois used any armament superiority they may have had to engage in atypical, for Native Americans, systematic wars of extermination.25

24Trigger, The Huron: Farmers of the North, Chapter 6. 25Even though this supposed advantage in firearms is often mentioned, it is usually put in words that

imply the advantage may have been only marginal. See, for example, Aquila, The Iroquois Restoration, p. 37. Also, this "bean counting" approach to military analysis tends to ignore, if not devalue, other important factors such as leadership, morale and motivation, political and military organization, strategic planning, tactics, training and experience, military intelligence, position and terrain, level of popular support, supply, availability of replacements, and preparedness. Finally, weapons have characteristics that are not merely technological. As the Americans would discover later when fighting Indians, muskets were cumbersome and slow to reload in forests where their advantage was also strongly degraded by limited lines of sight. Badly outgunned Indians repeatedly dealt severe defeats to much "better" armed but poorly trained American militiamen.




There remain three other partial explanations for Iroquois success against their neighbors. First, the Iroquois, especially the Mohawk and Seneca, were more aggressive and warlike than their neighbors, although the reasons advanced for this are aspects of Iroquois culture that were shared by their Iroquois-speaking neighbors, especially the Huron. Second, once the beaver had been trapped out in their region, the Iroquois were in a more desperate position than their neighbors and had a stronger motivation than the Huron, who were prosperous, comfortable, and secure in their future pelt trade. There is probably truth in this, but how superior motivation was turned into the destruction of tribes totalling more than six times that of the Confederation requires more explaining. Finally, despite superficial similarities with other local confederacies, the Iroquois may have had some as yet undetermined advantage in their political organization. The French, British, and Dutch all perceived something to be different about the Iroquois Confederation that led them to treat the Iroquois with more respect.

One possible difference is that beyond the usual Native American cultural content, the Confederation Great Binding Law seems to contain something closer to what we would today term a political ideology. The "code of imperialism" with its calm expectation of virtual genocide, transforms the implications of the opening metaphor of the Great Tree of Peace with its roots going toward all points of the compass into more than a metaphor for Confederation unity. The transformation of adoption into public policy, indeed, the implicit transformation of all cultural components of the Great Binding Law into public policy subject to amendment, may have produced something closer to the "political mentality" with which we are familiar today versus the traditional sociocultural perspective of the tribes around them. Clearly the Iroquois were gifted at strategic calculation in their foreign policy. Put another way, what from a distance looks like a political organization similar to the Huron may have had, because of ideological content that presumed a political "mission," a stronger and deeper dose of strategic calculation guided by that mission and sense of purpose. Perhaps if anthropologists look with greater determination in this direction, they may also be able to help explain why the Iroquois are among the few Native Americans, and most of the others are distant from centers of population, to have successfully retained their basic language, organization, and culture into the twentieth century.

CONCLUSION

Sometime during the sixteenth century, the prophet Deganawidah and his disciple Hiawatha convinced five tribes to significantly alter their centuries- old culture in order to end incessant warfare. The various oral traditions recounting the founding of the Confederation describes a time of great confusion and blood feuding. One version of the story says, "Everywhere




there was peril and everywhere mourning." "Feuds with outer nations and feuds with brother nations, feuds of sister towns and feuds of families and clans made every warrior a stealthy man who liked to kill."''26 This strikingly Hobbesian description of the situation that led to the Confederation's founding did not lead to a Leviathan, but to altered rituals and customs focused on a weak Council of peacemakers. One important change in customs had to do with mourning rituals.

Traditional mourning rituals consumed a high percentage of accumu- lated tribal wealth as well as time and energy. The creation of a Confedera- tion Council to direct relatively brief mourning rituals freed the Iroquois from the need for constant replacement of heavy mourning sacrifices, a burden that other tribes sharing Iroquois culture continued to bear. The Great Binding Law also politicized vengeance for death by formalizing the adoption of captives from Confederation wars by those in mourning. Bring- ing adoption under the political control of the Confederation Council and making it public policy had the benefits of depersonalizing vengeance and thereby ending much more quickly the endless counter-revenge cycle within the Five Nations, providing for the systematic replacement of battlefield losses, and reducing traditional condolence costs to families for members lost in warfare with non-Confederation tribes. An important, probably un- intended, consequence of the policy was to make it easier to engage in external warfare, first by lowering its costs and, second, by encouraging such wars simply on the grounds of capturing more adoptees. The natural consequences of war-taking casualties-under this policy tended to en- courage engaging in more warfare.

The largely successful attempt to end intertribal and interclan warfare among Confederation members freed the Iroquois from the burdens of replacing losses from internal conflict, and left more time and energy to look outward. Internal peace, changing the mourning rites, and placing these rites and those of adoption under the control of the Confederation Council gave the Iroquois a substantial competitive advantage over their neighbors. Also, traditional matrilinearity was altered under the Confederation's Great Binding Law from a means of transferring individual identity to a means of nominating political leaders, and thereby making those leaders more responsive to the needs of a political community that now included women who had been heavily victimized by intertribal warfare. Prior to the creation of the Confederation, Iroquois women had no such political role.

These and other changes amounted to the creation of a transcultural instrument for altering and monitoring the culture and its rituals. This instrument we would now term a political system, and the plan for that

26These lines are recounted in Tressa L. Berman's entry on Hiawatha in Encyclopedia of North American Indians, ed. Frederick E. Hoxie (New York: Houghton Mufflin, 1996), pp. 245-246; see also John C. Mohawk's entry on the Iroquois Confederacy for a similar description, pp. 298-302.




political system, even though handed down for centuries in oral form, is a proper constitution. The periodic oral recitation of the Great Binding Law, although it follows the traditional story-telling forms of Native American religious rituals-Deganawidah was, after all, a shamanistic visionary- amounts to an introductory government course for the Iroquois. Not only did the Great Binding Law establish a political means for trumping cultural rituals, it identified all cultural rituals with the shared political system so that rituals no longer had an independent, nonpolitical grounding. It can be said, then, that the Iroquois were created as a people with the adoption of the Great Binding Law, where before there had been no Iroquois-only five tribes that shared a culture with many other tribes scattered across the eastern half of North America. As with any good constitution, the Great Binding Law: (1) defined a way of life; (2) created and defined the people sharing this way of life; (3) created and defined political institutions for collective decisionmaking; (4) defined the regime (those with the right to hold office), the public (those for whom political actors speak), and citizenship (those with participatory rights); (5) established the basis for the regime's authority; (6) distributed political power; (7) structured conflict so it could be managed; and (8) limited the power of those in government.27

The Confederation's Great Binding Law is thus extraordinary for several reasons. It is what might be termed a "fossil" constitution-a surviving artifact from the past that stands for many other now lost or forgotten transitions from traditional to political organization. That this transition was incomplete because there was no clear articulation of sovereignty makes the Great Binding Law even more interesting because it illustrates both the importance of clearly articulating sovereignty and the difficulty of doing so. The transition from nonpolitical consensual decisionmaking to consensual political elitism is suggestive for those wondering why democratic forms were later and episodic developments in the history of fully political societies rather than earlier developments.

Understanding that Confederation rested on a mutual need for protection from violence may give comfort to students of Hobbes; but these same people should pause to consider that the Confederation was not created through violent or forceful imposition, but rather through the oral persua- siveness of a highly articulate cripple in the service of an almost inarticulate religious visionary. That is, the Confederation did not rest on violence- averse humans, but on humans who could have continued to live with violence, indeed, who continued to practice violence on outsiders with legendary effectiveness, but who were persuaded to create a political society that would treat its members with greater respect than was the case under traditional prepolitical customs.

27This list of characteristics defining a constitution is taken from Lutz, The Origins of American Constitutionalism, p. 16.




The Iroquois people could be considered rational actors in the sense of pursuing self-interest, but self-interest for the Iroquois was communitarian and most definitely not grounded in individual self-interest as rational actor theorists would have it. Instead, the Iroquois look very much like the kind of political people described by Aristotle-communally rational, con- sensually oriented, relatively inclusive, highly oriented to verbal persuasion, with a shared religion and culture, linked by language and intermarriage, inclined toward political egalitarianism overlaid with a hierarchy based on merit and virtue, and inclined toward a mixed government with institutions that blended the democratic, aristocratic, and monarchic principles.

This last point requires more explication. To say that the Iroquois did not have a democracy is not to imply that they had the opposite, but rather to note their penchant for blending the democratic principle with other principles of political organization. To the extent the process of selecting sachems was consensual, we have the democratic principle at work. To the extent candidacy for political office was identified with certain families, we have the aristocratic principle at work. The identification of each tribal chief with a specific family is an expression of the monarchic principle. The addition of Pine Tree Chiefs to the Confederation Council is an expression of the aristocratic principle--only this time aristocracy properly understood, as Aristotle would have it, in terms of those who are most virtu- ous in terms of contributions to the common good.

Iroquois similarity to Aristotlean theory is finally reflected in the ability of the Confederation Council to trump cultural rituals. Aristotle defined rationality in terms of subordinating passion to reason-reason defined by a process out of which emerges the common interest. The Iroquois Con- federation Council was explicitly designed to override the passions of an- ger, revenge, jealousy, grief, greed, and fear through the interposition of reason based on a discussion that was highly deliberative, free from pas- sionate disturbance or interruption, consensual to the point of unanimity, and conducted by men who had demonstrated an ability and willingness to conduct themselves in this dispassionate manner-men who were prohib- ited from taking part in any warfare that might arouse their passions or partialities. The Iroquois had not read Aristotle, but their political creation, the Confederation, was an indigenous and sophisticated attempt to create what Aristotle termed the "mixed regime." To point this out does not lessen Iroquois originality, but rather suggests that the Iroquois serve as an historical example in the service of Aristotle's theory of politics, despite the Hobbesian description of its founding situation.

The individual did not disappear in Iroquois culture, but rather was judged in communitarian terms rather than competitive individualistic terms-a result of the complicated web of relationships in which each Iroquois was enmeshed. Within this web of relationships, the individual




Iroquois had considerable room for self-expression and creativity, but not for self-aggrandizement. The Iroquois would have been perfectly comfortable with the distinction made by their seventeenth-century Puritan neighbors between liberty as license, and liberty as the freedom to do what is right in creative ways. Iroquois devotion to liberty undoubtedly explains why they did not opt for the alternative form of political organization most commonly used in early political systems-centralization under a hereditary monarch or a military leader. A confederal system was as far as they were willing to move from their traditional libertarian values, although it is interesting to speculate whether the Iroquois might not have eventually taken the next step to federalism if they had been left alone. There is nothing to indicate the Iroquois lacked the inventiveness to come up with something like dual citizenship and the division of delegated political powers between Confederation and tribal arenas, especially since the basic pre- requisite for these political institutions, popular sovereignty, was already embryonically present in their political culture.

The Iroquois Confederation's Great Binding Law is the only surviving Native American constitution that predates European influence. Ironically, one Confederation that might have provided another model, the Huron, was destroyed by the Iroquois. Even as the sole survivor of its kind, the Iroquois Confederation Constitution is a useful example of the consequences of institutions in general, and the design principles of confederations in particular. The fact that the Iroquois independently created the oldest surviving constitution in North America is a very good reason why the Confederation is worth attention, and why its constitution should become part of the canon of American foundation documents.



The Iroquois Confederation Constitution: An Analysis

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