Origins of the Foedus ('Federal') System
In Indian country it is commonplace to say that the United States Constitution was at least partly inspired by the Confederacy of the Haudenosaunee. Benjamin Franklin and Onondaga Chief Canasatego advised the thirteen British colonies to league themselves together by covenant, and the Latin word foedus (“league, pact, treaty, covenant”) is expressed in English as “federal.”A federal government is formed by a number of free, independent, and allied sovereignties or states entering by pact into a federation, often termed a “confederation” (con, ‘completed state or condition of’ + ‘federation, or league’). In theory, each allied state retains its free and independent status, but operates “in congress” (together) within a well defined scope of issues and concerns, such as foreign affairs.
In 1787, in Philadelphia, some 55 free, propertied, and aristocratic men who were representing the self-declared free and independent “states”—(self-declared in 1776)—met behind locked doors and shuttered windows in the sweltering summer heat. As state representatives, they devised a foedus, or “leagued” system. And it was agreed that if that federal system or government were ratified by the states, then each state would send representatives to sit in the Congress of “the united States,” so as to collectively deliberate and decide on certain policies and actions.
The “states” delegated certain powers and responsibilities to the federal system, while retaining all other powers and responsibilities for themselves. Because the respective thirteen states did not have any legitimate governmental power over free and independent Indian nations, they had no such power over Indian nations to delegate to the leagued governmental system they were conceiving and forming.
Power over Indian nations was not in the states, and it was not in the foedus (“league”) for the simple reason that such power did not exist. Indian nation independence is why the “states” assigned to the federal system the responsibility of making treaties with what the drafters called “the Indian Tribes.” Making treaties with the independent Indian nations was regarded at that time as engaging in treaty “commerce with the Indian Tribes.” The federal system was considered to be responsible for conducting such commerce (land purchases) with the Indians. This, however, did not give the federal system any rightful governmental authority over the free nations.
Now this treaty-making arrangement ought to have resulted in free Indian nations, or free “Indian Tribes,” being regarded as small, and not so small, independent countries, with their own well defined boundaries that the whites could not transgress without incurring severe punishment. For a short time, when our nations were still militarily powerful, this was the prospect for the future, but there were forces at play that envisioned the foedus (“federal”) system developing into its own imperial system, “the American Empire,” that would eventually assert power over the states that had created it.
The Society of the Cincinnati, for example, was formed to work toward “the future dignity of the American Empire.” George Washington referred to the newly formed Confederacy of States as “our infant empire.” John Marshall referred to the United States as “this our wide-spreading empire.” The Northwest Ordinance of 1787 was adopted as the very last Ordinance of the Continental Congress, and adopted by the very first Act of the new Congress seated on the basis of the Constitution of 1789. Early on, historian George Bancroft revealed that the Northwest Ordinance is the Colonial System of the American Empire, “the United States.”
An expanding imperial power, such as the American Empire, considers itself to possess the characteristics of “empire” and “domain” within territorial boundaries established and maintained by terroristic force (think Sand Creek and Wounded Knee). It operates by means of coercion and fear by bringing massive military might or other exertions of power to bear on free and independent nations and peoples. It is by such means that the American empire has attempted to make our free nations and peoples unfree by exerting wrongful dominance over us. This is what has happened to our nations and peoples for centuries now under the false rubric of “law.”
The doctrine of federal (“foedus”) “plenary power” over Indian nations is a false political doctrine that continues to be used against our originally free and independent nations and peoples, and over our traditional territories. This is the basis upon which the United States has and continues to economically exploit our traditional territories for its own benefit. And, strange as it may seem, the ideas and behaviors that have resulted in all these problems are traced back to medieval patterns of feudal lordship and domination. So, then, what is the way out of this predicament?
Steven Newcomb (Shawnee, Lenape) is co-founder and co-director of the Indigenous Law Institute, author of Pagans in the Promised Land: Decoding the Doctrine of Christian Discovery (2008, Fulcrum) and the Indigenous and Kumeyaay Research Coordinator for the Sycuan Band of the Kumeyaay Nation in the Kumeyaay territory (now commonly called “San Diego”).