Covering Blood and Graves

Gallman and Taylor take up murder at the boundary zones between the Iroquois and British settlers and between Spanish Florida and the Lower Creeks and Seminoles. Despite contrasts between the legal systems of the empires—civil law and inquisitorial procedure on the Spanish side, common law and trial by jury on the British side—indigenous groups came to similar conclusions regarding murder. Specifically, Native leaders rejected execution of the guilty, as proposed by English law, or other punishments, from execution to imprisonment to exile, under Spanish law. They opted instead to resolve matters by “covering the grave,” or giving gifts by the culpable party to the aggrieved party in lieu of revenge. This practice was less likely to spark a blood feud and enabled indigenous groups to preserve corporate autonomy in the face of pressures to conform to imperial norms. Though reluctantly, imperial officials often went along with this in order to keep the peace.

In Defense of Ignorance

In this concluding perspectives essay, Benton counsels against the search for historical actors’ “understanding,” what they thought or knew about law. She warns that inadequate sources make difficult the recovery of what Natives and settlers believed about law, a problem compounded by their tactical use of “feigned mastery” and “studied ignorance.” Rather than seek the largely unrecoverable “understanding” of historical actors, scholars should instead reconstruct strategic behavior. Understanding, she concludes, was not a precondition to “intelligibility-through-practice,” which arose through negotiations and conflicts over such matters as jurisdiction and protection.

“Ynuvaciones malas e rreprouadas”

Graubart’s essay explores the ways indigenous litigants in and near Lima sought to preserve notions of justice amid the novelty of Spanish law and the pressures of Spanish colonization. She argues that customary practices, rooted in precontact legality, became interdependent with Spanish law, leading Indian leaders to become skilled at managing a zone of legal “entanglement” that was anything but fixed and certain. Graubart uses wills, as well as Native regulation of agricultural leases, urban residences, and wage labor, to discuss labor, property, and resource management to reveal how Spanish law became intelligible to Andean litigants, who operated through mixed legal languages that allowed them to maintain ideas of justice under colonial rule.

Dialoguing with Barbarians

Herzog’s essay examines the “dialogues” between Portuguese colonists and “not-yet domesticated” Natives of the Amazon basin. She aims to uncover the legal structures and understandings that gave meaning to what each side expected from and sought to gain from their agreements. She demonstrates that this interaction was more a matter of negotiation than of litigation or explicit legal contest. Natives sought to preserve autonomy. Portuguese wanted conversion and vassalage. While each side came to the encounter with goals in mind, their dialogues and mis-dialogues informed outcomes, especially to the extent that Europeans did little to investigate what Natives were saying and why.

Making Law Intelligible in Comparative Context

In this opening chapter, Owensby and Ross offer a conceptual, theoretical, and historiographical framing of “legal intelligibility” and explore its relevance to understanding interimperial legalities from the sixteenth to the early nineteenth century. They advocate an explicitly comparative approach between Iberian and British legal systems as these played out on the ground, while arguing that a deep understanding of law and justice in these settings requires equally close attention to indigenous legal ideas and practices. The authors argue that imperial and indigenous legal presuppositions informed, shaped, and sometimes misdirected legal encounters. At the heart of the process is what they call “legal intelligibility”—how and to what extent legal regimes and associated notions of justice became intelligible to settlers and Natives who faced each other across the terrain of law.

Intelligibility or Incommensurability?

In this concluding perspectives essay, Richter contends that Natives and Europeans could make each other’s legal practices intelligible when it was in their mutual interests to do so. Problems arose when interests were not shared. This was quite common on account of the starkly different aims that indigenous peoples and Europeans pursued through law and of their different understandings of “justice” and “rights.” This “incommensurability” was, in Richter’s reading, more significant than the challenge of intelligibility. Richter pursues this theme by a reading of Herzog’s, Pulsipher’s, and Dixon’s chapters in this volume and by recounting mid-seventeenth-century negotiations between the Virginia House of Burgesses and Cockacoeske (the queen of Pamunkey).

“Sovereignty Has Lost Its Rights”

Echeverrí’s contribution to the volume, alone among the essays, crosses the temporal divide separating colonial from independence Latin America. She argues that liberal elites pushed for a notion of law and justice rooted in a principle of formal equality and sovereignty, one at odds with colonial ideas of vassalage and ideas of justice rooted in protection of the vulnerable from the powerful. In effect, Colombian elites articulated a vision undercutting indigenous collective rights in favor of individual rights as citizens. Natives, by contrast, continued to assert collective tribute obligations and to demand the king’s substantive justice in protecting corporate and community identities, as they had done for centuries prior to independence. Nevertheless, elites’ reliance on sovereignty to ground law redistributed power within the legal system in ways that challenged intelligibility and made it more difficult for people to defend communal rights.

“Darling Indians” and “Natural Lords”

Dixon contends that between the 1640s and Bacon’s Rebellion (1676), Virginia went far in following the Spanish policy of incorporating Natives into the polity. Reminiscent of the Spanish empire’s “republic of Indians,” the tributary Natives lived in semiautonomous communities. Virginia law granted tributary kings and queens a privileged standing to enhance their rule over potentially dangerous Indians. The colony (in theory) viewed Indians, particularly poorer ones, as having a special claim upon English justice. Indeed, comparing Virginia’s to Spanish America’s (more elaborate and theoretically developed) notions of corporate Indian rights suggests a model for grouping together early Virginia initiatives whose collective significance might otherwise be overlooked. The Spanish experience also highlights how Virginia’s tributary system, like the “republic of Indians,” claimed to uphold a particular vision of justice—one that purported to safeguard Natives against the worst abuses of colonists in return for loyalty to the king.

“Since We Came out of This Ground”

Over time, Natives and settlers not only came to appreciate the political implications of treaties but also learned to manipulate each other’s legal concepts. Craig Yirush shows the Iroquois’ skill at sequentially deploying indigenous and English concepts during negotiations with delegates from Pennsylvania, Virginia, and Maryland in 1744. The Iroquois defended their claims to land in Maryland and Virginia by invoking their conquest of it and their long possession (prescription). Arguments from conquest and prescription, familiar in European colonial discourses, constituted part of the settlers’ case at the treaty negotiations. The Iroquois reworked these arguments to their own advantage, mixing them with appeals rooted in Native legal and rhetorical traditions. Switching between Native and English legal ideas was at once a mechanism for gaining advantages in negotiations, defending interests, outmaneuvering rivals, and enriching intermediaries.

Defending and Defrauding the Indians

As Jenny Pulsipher recounts, the mid-seventeenth-century Nipmuc Indian John Wompas familiarized himself with both Native and settler concepts of land tenure, distribution, and sales, becoming adept at switching opportunistically between them in his career as a speculator and (untrustworthy) intermediary. Wompas emerged out of a world where Natives used English law to defend their land rights, while colonists deployed Indian law to deny those rights. He outstripped his contemporaries in his skill at drawing on his Native identity to obtain land, then manipulating English law to sell and record this land, and later switching to Indian norms to evade obstacles put in his way by colonial authorities. By drawing on both Native and English legal practices, Wompas aimed to make land transactions intelligible to both sides, thus increasing the chances that sales would be accepted.