Indigenous and Maroon Experience & Engagement is Central to the Evolution of Critical Legal Theory
Modernity tells us the story that what’s newest is best and that the idea of progress will save us. But there are older stories that remind us that modernity is only one story among many.
Indigenous peoples of the Western Hemisphere have been in place since before colonizers crossed the water, stewarding and defending their land while making no efforts to colonize distant peoples.
Maroons are peoples of African descent throughout the Western Hemisphere who, since the very first slave ship crossed the Middle Passage four hundred years ago, have gained liberation by escaping to create sanctuaries where they have stewarded their African roots and defended their land against white supremacy.
These proven sustainable peoples represent dynamic and resilient cultures that, in the words of John Mohawk, understand “humankind’s relationship to nature (through a) pre-colonial, pre-patriarchal, pre-modern story.”
They remind us that we should pay deep attention to the ancestral ways as modernity’s claim of progress continues to unravel.
The nation states that we call the United States and Colombia are less than 300 years old. The Kogi and the Arahuaco, the Hopi and the Haundenosaunee have been here for a millennium and longer.
Why not pay attention to their enduring practices at least in equal measure to new ones as we consider how to apply social and legal theory to current social problems and public policy issues?
Fifty years ago, I did my student teaching on Taos Pueblo, one of the oldest continually occupied communities in the present United States. While there, I wrote about how my identity as a middle class Anglo teaching Taos Pueblo children might inform my future path as a beginning educator.
A half century later, the lessons I gained from learning and teaching within a thousand year old indigenous community propelled me to create a website, provensustainable.org, which gathers the words of 176 representatives from 22 communities of indigenous and maroon peoples from across the globe, spanning all the inhabited continents, the Arctic and Oceania.
This writing arises from my research for that project along with the subsequent engagement with peoples representing these communities.
The fundamental rule of law in the Western Hemisphere as it relates to sovereignty and land title emanates from the Papal Bull, "Inter Caetera," issued by Pope Alexander VI on May 4, 1493.
The Pope declared that any land not inhabited by Christians was subject to be "discovered," and that "the Catholic faith and the Christian religion be exalted and be everywhere increased and spread, that the health of souls be cared for and that barbarous nations be overthrown and brought to the faith itself."
340 years later this “Doctrine of Discovery” was affirmed by the U.S. Supreme Court in its Johnson v. McIntosh decision.
In that opinion Chief Justice Marshall wrote that:
indigenous peoples’ “rights to complete sovereignty, as independent nations, were necessarily diminished by the original fundamental principle that discovery gave exclusive title to those who made it.”
Nearly two centuries after the Johnson v. McIntosh decision indigenous scholarship and activism has shifted the dialogue regarding Pope Alexander’s original decree.
“[There’s] an abiding belief that indigenous people are moving on a path toward liberation and healing on the basis of our own respective languages, cultures and spiritual traditions and on the basis of our sacred birthright as the original free and independent nations of this hemisphere.”
— Stephen Newcomb (Shawnee/Lenape), co-founder of the Indigenous Law Institute
Newcomb’s belief in this fundamental worldview shift is reflected as well in the United Nations Declaration on the Rights of Indigenous Peoples now endorsed by 148 countries, affirming that indigenous nations do have an inherent and fundamental right to self-determination.
And finally, in the spring of 2023 the Vatican formally repudiated the “Doctrine of Discovery” saying that the 15th-century papal bulls “did not adequately reflect the equal dignity and rights of indigenous peoples” and have never been considered expressions of the Catholic faith.
There are some who believe that the Kogi of the Santa Marta are the one indigenous people who have successfully resisted the Doctrine of Discovery by maintaining their presence in isolation from modernity just down the coast from where Columbus first made landfall in South America.
As stated by Kogi spiritual leader Mama Jose Luis in their film, Aluna, “This is our own place and we are telling you. Not just today, but for 500 years! What are you doing here?”
Human rights must begin with the rights of the first peoples, rights articulated and sustained from the female side of our council fires.
In traditional Haudenosaunee society the male chiefs are nominated, approved and sometimes removed by a council of women. The Gantowisas or sisterhood of the lineage, lead their people in all respects – in spirit, politics, economics and social life. As Barbara Alice Mann writes, “they are the soul of the councils.” This was true 1,000 years ago at the founding of the Six Nation Confederacy and it remains true today.
This affirmation of women’s central role in social leadership is echoed by Gaama Gloria Simms, Paramount Queen of the Jamaican Maroons:
“Indigenous women in Jamaica live a role model lifestyle to redirect African people to a real image of compassionate family life, a unit that was totally intentionally destroyed in slavery… This is the daily life style of our matriarchal governance and this is history...Women are producers of off-springs, and food products. It is the women who maintain law and order in the home and community.”
Can we imagine a world in which women have maintained their centrality in preserving human rights dating from our ancestral times?
For a reminder of how we first organized, before patriarchy, look to the women of the Haudenosaunee, the Jamaican maroons, the Kuna, the Shipibo, the Juchitan, the Zapotec. They have modeled what we now call human rights but which was known by the Haudenosaunee as simply the practice of the good mind.
Protecting natural resources and the environment are at the heart of Ecuador’s Confederation of indigenous Nationalities of Ecuador or CONAIE, an organization that brings together the indigenous nationalities, peoples, communities, centers and associations of Ecuador.
CONAIE’s founding document states:
“We summon all men and women who fight against social injustice, economic exploitation, racial discrimination, the violation of human rights, destruction of nature, and environmental pollution. The Political Project has as a main objective the construction of a New Model of State.”
Their top two objectives are:
to consolidate the indigenous peoples and nationalities of the country and
to fight for the defense of lands, indigenous territories and natural resources
CONAIE led the movement that brought Ecuador, in 2008, to adopt a new constitution which became the first national constitution in the world to enshrine a set of codified Rights of Nature.
This constitutional commitment to environmental protection is a statutory reflection of the indigenous values of sumak kawsay (a full life living in harmony with other people and nature) and pachamama (mother nature).
Fellow Saamaka Maroon leader and Surinam National Assembly representative Miquella Soemar-Huur names the precedent on which the Saamaka Maroon assertion of sovereignty is based, “On September 19, 1762… our ancestors, the Saamaka maroons, signed a peace treaty with the Dutch Crown…acknowledging their territorial rights and trading privileges… It still goes on.”
In 2000, the Association of Saamaka Authorities filed a petition before the Inter-American Commission on Human Rights. They alleged that the state of Surinam had violated their rights by granting logging and mining concessions on Saamaka lands. In 2006 the Commission found that the State of Surinam violated the right to property to the detriment of the Saamaka people by not adopting effective measures to recognize its communal property right to the lands it has traditionally occupied and used. It ordered that the state repair the environmental damage caused by the logging concessions and make reparation and due compensation to the Saamaka people for the damage done by the violations.
Social justice for indigenous and maroon peoples has always meant sharing with families, human and non-human.
In An Indigenous Peoples' History of the United States Roxanne Dunbar-Ortiz writes, "Native peoples were and are leaders in the struggle for justice and liberation."
In the modern world justice and liberation go hand in hand with struggle but it was not always the case.
The Jamaican maroons of Moore Town and Accompong and the Saamaka maroons of Surinam continue to hold beliefs and practices rooted in social justice carried by their African ancestors across the Atlantic and across centuries. An article in the journal “World Development” quotes an unnamed Saamaka maroon woman stating this commitment to social justice in very clear terms. She says:
“It is more important for us all to eat today than to know that I can eat tomorrow.” What would our world look like if we lived by this pre-colonial principle? How would our legal system change if we were to implement this social justice precept?
Zapatista leader Marcos summarized a worldview with social justice at its core in the Sixth Declaration from the Lacandon Jungle in 2012 saying,
“seen from above, the world shrinks, and nothing fits in it other than injustice. And, seen from below, the world is so spacious that there is room for joy, music, song, dance, dignified work, justice, everyone's opinions and thoughts, no matter how different they are - if below, they are what they are."
In this brief article, I’ve referenced a number of examples of successful indigenous and maroon efforts to maintain their ancestral commitments. These forms of resistance and resilience have been made on every level – from the original forms of individual, community and clan to the modern constructions of nation states and international organizations. You can find many more such examples on the provensustainable.org website.
In closing, as we seek to strengthen critical theory & praxis in hemispheric terms, may we all listen deeply to the words of Chickasaw poet, Linda Hogan,
“There are forces deeper than blood. It is to these that I look, to the roots of tradition and their growth from ages-old human integrity and knowledge of the world.”
Article Context
My friend and colleague from the Center For Nonviolence, Hernando Estevez, invited me to write a paper for the Congress on Social Justice in Latin America & The Caribbean that he helped organize as chair of the Philosophy Department at the Universidad de LaSalle in Bogota Colombia. The goal of the congress was to create a space focused on South/North relations to strengthen critical theory & praxis in hemispheric terms. Presenters were invited to reflect on the new challenges, opportunities and difficulties in influencing the legal cultures of the different countries of the continent through the development and promotion of critical legal theories and perspectives related to the rule of law, human rights, natural resources and the environment, minority rights and social justice. I suggested to him that I write from my perspective as curator of the Proven Sustainable website. His team agreed to my proposal.
References
“About Us: Resistance and Social Organization of indigenous Peoples.” Confederation of indigenous Nationalities of Ecuador. Accessed 26 March 2024.
“Aluna - An Ecological Warning by the Kogi People.” Dir. Alan Ereira. Sunstone Films. 2012.
Dunbar-Ortiz, Roxanne. “An Indigenous Peoples' History of the United States.” Beacon Press. 2014.
EZLN. “Sixth Declaration from the Lacandon Jungle.” 2012
Heemskerk, Marieke, Anastasia Norton & Lise de Dehn. “Does Public Welfare Crowd Out Informal Safety Nets? Ethnographic Evidence from Rural Latin America.” World Development. Vol 32, #6. 2004.
Hogan, Linda. “The Woman Who Watches Over the World.” W.W Norton. 2001.
Jabini Hugo quoted in “Both ENDS supports Stuart Hugo Jabini.” Blog post. 5 Oct. 2011.
Mann, Barbara Alice. “They Are the Soul of the Councils: The Iroquoian Model of Woman Power.” In “Societies of Peace: Matriarchies Past Present and Future” edited by Heide Goettner-Abendroth. Inanna Publications. 2009.
Mohawk, John quoted in Kayanesenh Paul Williams, “Kayanerenkó:wa: The Great Law of Peace.” University of Manitoba Press. 2018.
Newcomb, Steven. “Pagans in the Promised Land: Decoding the Doctrine of Christian Discovery.” Chicago Review Press. 2008.
Simms, Gaama Gloria. “Maroon Indigenous Women Circle, Jamaica: Historical Recurrences from Indigenous Women’s Perspectives.” Journal of International Women's Studies. Jan. 2018.
Soemar-Huur, Miquella. “On September 19, 1762 …” ABOP. Facebook. 19 Sept. 2020.
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Sox Sperry is co-founder of Fort Wayne’s Center For Nonviolence, curriculum writer for Project Look Sharp, a media literacy integration initiative of Ithaca College, and the founder of Proven Sustainable.
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