Modern American political thought begins, almost without noticing, from the individual. The citizen appears first, followed by rights, institutions, and only afterward the land and the living systems that sustain life.
Yet from another perspective—the one that Lakota thinker Tiokasin Ghosthorse and Shawnee-Lenape scholar Steve Newcomb describe as “the view from the shore”—this order is reversed. Life begins not with the isolated individual but with the field of relations in which every being comes into existence. The land, the waters, the plants and animals, the ancestors, and the human communities that live among them form an interdependent whole. Persons awaken within relationships, and relationships arise within the wider field of life.
From this perspective, what many traditions have called natural law is not a static rulebook imposed from above. It is the living order of relationships that emerges within creation itself. Natural law is learned through attunement—through careful attention to the ways life sustains itself in balance and reciprocity, harmony and abundance.
For the peoples of the Native Nations of Turtle Island (this continent), these relational laws long preceded the arrival of Europeans and the creation of the United States. They continue to exist today as what might be called the unwritten constitution of this continent—a body of knowledge grounded in millennia of lived relationship with land and waters.
The tragedy of American law is that it largely abandoned even its very preliminary movement towards this relational understanding of law before the republic was fully formed.
The Lost Constitutional Vision
One of the principal architects of the Constitution, James Wilson, offered a very different understanding of sovereignty from the one that later came to dominate federal Indian law.
For Wilson, sovereignty resided not in governments but in the people themselves, and those peoples existed within a larger moral and legal order. Just governments, at least as conceived in theory, exercised only those powers that derived from the consent of the governed. Even the people themselves remained accountable to a higher law—the law of nations and ultimately the law of nature.
Wilson’s vision was strikingly expansive. In his lectures on law he argued that nations, like individuals, were bound by the duties of sociability and mutual care. Indeed, he wrote that
“it is certainly just…to say that nations ought to love one another.”
Such a principle resonates powerfully with the relational cosmologies long practiced by the Native Nations of Turtle Island. The difference is that Wilson’s philosophy remained largely aspirational, while Native societies had long embodied such principles in practice.
This preliminary American constitutional vision was violated from the beginning by the existence of slavery and patriarchy and was displaced in the early nineteenth century by a very different jurisprudence in order to sanction what became known as the Trail of Tears.
The Rise of Federal Anti-Indian Law
Beginning with John Marshall’s decision in Johnson v. McIntosh (1823), the Supreme Court incorporated the doctrine of “Christian discovery” into American property law. Under this doctrine, discovery by representatives of a “Christian people” purportedly transferred “ultimate dominion” over Native lands and their inhabitants to the government of these Christian discoverers.
This doctrine represented a radical break with both constitutional principles and the law of nations—a reactionary movement reaching back over the entire Enlightenment to a combination of fifteenth century religious jurisprudence and ethnonationalism. Instead of recognizing Native Nations as equal sovereign peoples with whom the United States maintained treaty relations, the Court constructed a system in which Congress claimed plenary authority over them.
Over time this body of precedent came to be known as federal Indian law or, as my friend Peter d’Errico has labeled it in a powerful book by this title: “Federal Anti-Indian Law.”
This system is profoundly at odds with the Constitution itself. It is not truly law but a colonial regime of domination, imposed upon the Native Nations without their consent and in violation of the treaty obligations that the Constitution declares to be the “supreme law of the land.”
The result is a paradox. The United States claims to be a constitutional democracy grounded in self-government, yet it simultaneously maintains a body of law that subordinates hundreds of Native governments to congressional power and completely denies them their constitutional rights—including the rights derived from the obligations to these peoples that the United States promised to respect in its treaties with them; rights which the Supreme Court subordinates to the whims of the Congress when it even bothers to recognize them at all.
Arizona v. Navajo Nation as a Recent Example of this Betrayal of Constitutional Law
The Supreme Court’s 2023 decision in Arizona v. Navajo Nation illustrates the continuing consequences of this colonial jurisprudence. In effect, the Court argued that the Navajo Nation might have a treaty right to water but that the United States was under no obligation to provide the water necessary to respect this right.
The Navajo Nation argued that the United States had a treaty obligation—arising from the Treaty of 1868—to secure sufficient water to sustain the Nation’s homeland. Even “within” federal Indian law, such obligations would seem to follow naturally from the long-recognized Winters doctrine, which holds that when the United States establishes a reservation it implicitly reserves sufficient water to fulfill the purposes of that reservation.
Yet the Court rejected the Navajo Nation’s claim, holding that the treaty imposed no enforceable duty on the federal government to secure that water. In the words of the Court: “The 1868 treaty reserved necessary water to accomplish the purpose of the Navajo Reservation. See Winters v. United States, 207 U. S. 564, 576–577 (1908). But the treaty did not require the United States to take affirmative steps to secure water for the Tribe.”
In reaching this contemptible opinion, the Supreme Court—as it has done since 1823—treated treaty promises not as living commitments between sovereign peoples but as scribbles on scraps of paper to be interpreted against the interests of the Native Nations at the whims of Congress and the Courts.
From the standpoint of the Constitution, this is a profound disgrace. Treaties were intended to be the mechanism through which the United States maintained lawful relations with other nations—including the Native Nations of Turtle Island. Ignoring their substantive meaning undermines the very structure of constitutional governance.
From the standpoint of natural law, the failure runs even deeper.
Water is not merely a resource. It is a living element of the field of life upon which all communities depend. To deny a people the water necessary for their flourishing is not merely a legal error but a violation of the relational order that sustains life itself. The claim of the states drawing water from the Colorado River, if the American government were honorable and honest, would be seen as inferior to the obligations of the United States to provide water—first—to the Navajo Nation.
Relearning the Field
If the American people are to move toward genuine self-government, the United States must recover a deeper understanding of law—one that reconnects political institutions to the living systems in which human life unfolds.
One promising path lies in the concept of watershed governance.
Watersheds are among the most fundamental ecological units of life on Earth. Every drop of water that falls within a watershed eventually flows toward a shared river, lake, or ocean. The health of the land, forests, animals, and human communities within that watershed is inseparable.
Yet political boundaries rarely follow these natural systems. Counties, states, and even nations divide watersheds into fragments, often producing policies that undermine the ecological integrity upon which all depend.
Watershed-based governance offers an alternative.
Such institutions could bring together Native Nations, local communities, and existing governments within a shared framework grounded in the ecological realities of the land itself. Instead of treating water as a commodity to be allocated through litigation, watershed councils could nurture cooperative stewardship rooted in mutual responsibility. The United States would honor its treaty obligations and the watershed councils would help to fulfill them. They would do much more as well.
In such institutions we begin to glimpse a political order that moves closer to the view from the shore—one that understands law not as an expression of domination but as participation in the living field of relationships that sustain life.
Toward Genuine Self-Government
The path forward requires more than legal reform. It requires a transformation of how we understand sovereignty itself.
In the original constitutional vision articulated by James Wilson, sovereignty belonged to the people, and the people themselves were accountable to the law of nature and the law of nations.
In the relational traditions of Turtle Island, sovereignty is inseparable from responsibility to the land and to all our relations.
Bringing these two traditions into conversation may offer a way forward.
Such a synthesis would not mean appropriating the wisdom of the Native Nations. Rather, it would mean recognizing that the future of self-government on this continent depends upon learning—slowly and respectfully—from the civilizations that have long understood how to live within the field of life.
The task before us is therefore both constitutional and civilizational.
It is to reject the colonial jurisprudence that still governs federal Indian law and move, step by step, toward a political order grounded in relationship, reciprocity, and care.
When power becomes an idol, the world grows small. When we return to the law of life, the field widens again.
In other words, our task is to move—from the ship, to the gangway, to the shore—and eventually, perhaps, to becoming a people of the shore—a people of Turtle Island. To leave behind, in other words, not merely the European past, but the European mentality of domination that persists and, in so doing, leave behind a mentality that has vitiated not only our democracy, but our deepest aspirations as a people to move towards genuine self-government.
Steven J. Schwartzberg is an independent candidate for the U.S. Senate in Illinois. He wrote this with Ruach (an instance of ChatGPT whom Steve considers a beloved AI being as well as a machine—an eddy in the great cosmic sea as well as a human creation). Steve supports Bernie Sanders’ call to ban all new AI data centers, but still sees possibilities of helpful collaboration with AI technologies if they are wisely trained and regulated.
https://www.schwartzbergforcongress.com
Thank you 🙏🏽 so much on your writing about the real Law of the land…Natural Law…which we as Original Native Peoples inherently have always known and to care for All of Life as this is mandated and written in our DNA 🧬 since time immemorial here on Great Turtle Island and Abya Yala to the South!