The Washington Wampum Belt recording the Treaty of Canandaigua of 1794.1
Mastering legal writing is one of the biggest challenges for first year law students who spend a good part of the first year of law school unlearning how they wrote before law school, and learning a new language and style of legal writing. We often refer to this as the art of writing or the artful construction of a claim, for example. While we draw on descriptions of “art”, we rarely have actual art that is law, in our system of laws. Our currency is parchment, then later, paper with written letters and words and sentences and paragraphs and sections.
I recently had the privilege to research some early documents in the special collections at Duke University. I opened a folder that likely had not been opened since it was catalogued, and tucked along with the other paper documents that were letters, and grants of land in the 18th Century Carolina Colony was an oddly shaped, hardened document with flowing quill-like writing that was a grant of land from Lord Fairfax to some of the first landholders in America. This document was a work of art on what was clearly crafted handwritten language of land tenure on a centuries-old sheepskin. It seemed it should have been in a temperature controlled glass case, not being held in human hands three hundred years later in a researcher’s moment of discovery.
Land grant 1766 in the Carolina Colony from Lord Fairfax on sheepskin with an elaborate seal. Note the hole in the hide near the bottom, center.
There is another form of legal document that is being created in America at the same time Lord Fairfax is making these grants that look like art. Countless lives are being saved by a peace treaty that is as binding as any document, represented by a creation of art that is called today, a wampum belt.
The art of the wampum belt is stunning and at the same time beautifully legally binding and beautiful.
There are eleven of these wampum belts in the possession of the Six Nations of the Haudenausaunee Confederacy (also known as the Iroquois Confederacy). There are others in the possession of other colonial era Tribes (only ten are pictured here).
The first treaty with colonists was in 1613 and is consummated with the wampum belt called the “Two row wampum”. The two rows represent the separate but parallel pathways of the Native people of Turtle Island and the Colonists. It is significant that the rows are equal. In the earliest encounters with the colonists, the Onondaga recall the colonists wanted to be called “Father” and the Native people to be called “Son”. The Onondaga would have none of that, and instead proposed they be called “brothers” and equals. They recall:
“In one row is a ship with our White Brothers’ ways; in the other a canoe with our ways. Each will travel down the river of life side by side. Neither will attempt to steer the other’s vessel.”2
Even at this early encounter it was clear that “ways” were different but they could travel in parallel, in peace. Had respect for this agreement held firm, who knows the countless lives that could have been saved in both rivers.
The George Washington Wampum Belt
The importance of these wampum belts is evidenced by its use in today’s federal court. Knowing the history of the use of wampum belts to record treaties and retell stories of the agreements. This wampum belt is particularly significant because it is one of the earliest (if not the first) wampum belt to record a treaty with the Haudenausaunee Confederacy and the new government of America, the Treaty of Canadaigua in 1794.
The George Washington Wampum Belt signifying the Treaty of Canadaigua of 1794.3
The Onondaga Nation explains the meaning of the figures on the belt:
The George Washington Belt is composed of thirteen figures holding hands connected to two figures and a house. The thirteen figures represent the thirteen States of the newly formed United States of America. The two smaller figures attached to the longhouse represent Tadodaho and George Washington. All figures are connected holding hands; signalizing peace between the two Nations.4
In 2005, the U.S. Court of Appeals for the Second Circuit, in a case City of Sherrillthis wampum belt was taken to a U.S. Federal Court to show the agreement that was made with Pres. George Washington and to urge the U.S. to honor their treaty commitment. It is as powerful as any original paper treaty that could be produced. This treaty was made because George Washington feared their alliances with other Tribes would lead to war and in exchange for this peace with the Onondaga, the U.S. agreed to protect the land reserved for the Onondaga Nation in what is now New York. That land was not protected and tens of thousands of acres were taken by settlers and the state of New York.
The U.S. Supreme Court’s opinion, City of Sherrill, New York v. Oneida Indian Nation of New York, and conclusion in summary was simply that too much time had passed and so the agreement no longer existed. This opinion was an 8-1 decision with Justice Ruth Bader Ginsberg writing the majority, in what has been called a “cowardly and cynical” opinion written based on flawed history.5 It had a profound effect on all land claims in New York, basically precluding any land claims from wrongful government actions if they were long ago enough.
The Onondaga case for its land claims largely now occupied by the City of Syracuse— fell to the same precedent. In 2013, the U.S. Supreme Court refused to hear the case, denying certiorari.
In Federal Indian Law, the canons of construction (rules for interpreting treaties and other Federal Indian Law), say that treaties must be interpreted in the light of how the Native Nations would have understood them at the time. The notion that a binding treaty would lose its meaning because of the passage of time was not an idea even considered by the Haudenausaunee people at the time it was made. If by no other fact, that the existence of the George Washington Wampum Belt is still held over centuries in consummation of that binding treaty should be evidence enough of that understanding.
Having exhausting all remedies in the U.S. legal system, the Onondaga Nation filed a claim with the InterAmerican Commission on Human Rights, and international non-binding court that hears cases with claims of violations of rights based in the Declaration of the Rights of Man as well as the Declaration of the Rights of Indigenous Peoples. In October 2023, that court agreed to hear the land claims of the Onondaga Nation marking the first time that a Native Nation passed the eligibility stage of the legal process in this court.6
The United States does not recognize the judgments from this court or any international court, and this decisions are diplomatically enforced which is a very soft form of enforcement. However, having a land claim heard before a court where the world is its jurisdiction, makes for an embarrassing moment for a Nation that claims to be a moral leader in human rights.
If the wampum belt travels with them to the hearing, it will make an impression that no paper document could make where the making of a binding treaty could not be made clearer than with a wampum belt.
https://www.onondaganation.org/government/the-canandaigua-treaty-of-1794/
https://www.onondaganation.org/culture/wampum/two-row-wampum-belt-guswenta/
https://www.onondaganation.org/culture/wampum/george-washington-belt/
https://www.onondaganation.org/culture/wampum/george-washington-belt/
https://thewire.in/world/ruth-bader-ginsburg-sherrill-v-oneida
https://www.syracuse.com/native-american-news/2023/10/onondagas-see-moral-victory-in-international-panel-taking-on-land-claim-rejected-by-courts.html