The legal tradition of the Haudenosaunee, who are also known as the Iroquois Confederacy, were important in shaping Canadian governance and democracy. This legal system continues to survive to the modern day in the indigenous communities which participate in the Iroquois Confederacy in southern Ontario and Quebec in Canada, and New York and Wisconsin in the United States (Borrows, 2010). Their Great Law of Peace is based on a centuries old confederacy of five to six nations which included the Mohawk, the Oneida, the Onondaga, the Cayuga, the Tuscarora and the Seneca (Borrows, 2010). Their law and governance were already in place when Europeans asserted their presence in these areas. The Great Law of Peace, also known as Kaianerekowa was binding on all of the nations of the confederacy, but it has a very different way of communicating law (Borrows, 2010). The legal codes are communicated through a story about a warrior named Hayehwatha, and it includes information on social customs, such as the greeting of outsiders, as well as organizing social institutions such as the longhouse and the delivery of messages using wampum (Borrows, 2010). The different positions and duties of the different nations are also explained by things which happened in the story of Hayehwatha and the discovery of all of the facets of the Great Law of Peace (Borrows, 2010). These rules of law are explained through story and customs, with each custom respecting a principle or rule that must be followed (Borrows, 2010). In this way, their law was very much a code for life, even as it provides for the reasons of their existence, and primary evidence of their independence. This independent theme is repeated in the Iroquois traditions (Borrows, 2010). One historical example was the Gus Wen Tah, or Two Row Wampum which visually and symbolically communicated agreement not to interfere in the affairs of allied nations (Borrows, 2010). Under their own laws, the Haudenosaunee are not American or Canadian citizens, but rather members of the Confederacy that are allied with that country by agreements (Borrows, 2010).
The Haudenosaunee tradition was fairer and more democratic than many of the European nations that they were making agreements with. Despite this, the Haudenosaunee nations found themselves in a position where another government was asserting authority over them. In the case of the United States, it is ironic that the U.S. Constitution is very much based on a template like the Great Law of Peace, and yet it has been used to assert jurisdiction over the lives, customs and lands of these groups. The Canadian legal tradition has also borrowed many aspects from the Confederacy governments. There are two differences that led to this situation where the superior approach to law informed the laws of Canada and the United States, even while those laws were used as a means of forcing indigenous people in both nations to accept that they were subject to the laws of each country. The first difference is population size, which makes it challenging for the smaller group. The second aspect is the approach to freedom and independence. While the Haudenosaunee prized the independence of the nation, as individuals their freedoms had boundaries determined by the social customs and the Great Law. In American and Canada, there is individual freedom, which is bounded by compliance with laws, but there are not rights of freedom for individual groups or communities beyond specific categories for which discrimination is prohibited. Personally, given that they have continuously had this same legal tradition, I wonder if Canada and the United States can legally assert jurisdiction over them without their consent.
- Borrows, John. (2010). Indigenous Law Examples. Canada’s Indigenous Constitution. University of Toronto Press, ProQuest.