The essays in this volume originated in a 2014 conference, “Meanings of Justice in New World Empires: Settler and Indigenous Law as Counterpoints.” Featuring contributions from historians of colonial Iberian and British America, the book offers a valuable comparative framework for any readers interested in placing legal history and indigenous reactions to colonization in a wider Atlantic framework. Individually, the essays range broadly in chronology and geography, from seventeenth-century New England to revolutionary New Granada. Collectively, they argue for the ability of indigenous peoples to comprehend and manipulate colonial legal systems despite the various social, economic, and demographic shocks that followed in the wake of contact with Europeans.
The introductory essay by the book's editors, Brian P. Owensby and Richard J. Ross, provides a useful interpretive overview for what follows. The Iberian and British colonial orders, they argue, have often been depicted as opposites in their approach to dealing with indigenous peoples. The Spanish (and to a lesser extent Portuguese) incorporated Native peoples into their empires as vassals of the king, thereby investing them with “legal personality commensurate to their status” (4) in return for their submission to the new religious and labor regimes imposed upon them. The British, on the other hand, excluded Native peoples from their colonial order, pushing them figuratively and literally beyond the bounds of the law and resulting in their “relative legal absence in British America” (7). In the practical application of the law these differing approaches played out in different ways. In Iberian courts and government, Indians were regarded as “personas miserable” (10), who, like orphans and widows, were entitled to the king's protection from those who might abuse them. Meanwhile, in British America legal authorities generally denied or severely curtailed the personal and property rights of Indians, rendering them less capable of protecting themselves from violence and dispossession at the hands of their colonial neighbors. Owensby and Ross and the other contributors to this volume generally challenge this stark contrast between Iberian and British colonies. Instead, they argue for a model they term “Local Variability and Ebb and Flow” (22), in which the types of accommodations negotiated on the ground evidenced considerably more agency on the part of Natives than either of these monolithic interpretations would suggest.
The essays that follow Owensby and Ross's introduction exhibit “local variability” in one form or another, although themes do emerge that serve as connective tissue among them. Tamar Herzog's analysis of negotiations between Portuguese colonizers and Tupinamba Indians in Brazil shares with Craig Yirush's essay on the Lancaster (Pennsylvania) Treaty of 1744 an interest in dissecting how each party communicated its notion of justice and sovereignty through the formalized language and physical acts (such as gift-giving) of diplomacy. Jenny Hale Pulsipher's discussion of Nipmuc Indian John Wompas's “legal hybridity” (89) raises issues about clashing Native and colonial notions of land ownership that are echoed in Marcela Echeverri's essay on Native strategies for preserving communal land ownership in early nineteenth-century Andean South America. Karen Graubart's study of how colonizers and Natives in Peru maneuvered over indigenous land, labor, and property anticipates the point made by Bradley Dixon in his essay that notions of vassalage and protection had their place in the English colonial order as well, in part because the English tried to imitate the Spanish example. The limits of that imitation are evident in Nancy O. Gallman and Alan Taylor's study of how indigenous and English legal customs clashed in the adjudication of colonial murders involving Natives: if the British failed to impose their legal order on their indigenous neighbors, it was not for lack of trying.
This volume closes with two essays reflecting on the themes of the conference. Lauren Benton raises the important methodological point that the sources cannot reliably tell us when or how thoroughly Natives comprehended colonial legal systems because they engaged in “studied ignorance” (273) when it was to their advantage (as did colonizers when they found Native legal systems inconvenient to their ends). Rather than trying to measure each side's intelligibility to the other, she recommends focusing on understanding instead, for it is in partial comprehension of the other side's way of doing business that hybrid systems of negotiation and accommodation germinated. Daniel K. Richter follows a similar path, recommending that “legal incommensurability” (291) rather than intelligibility is the more appropriate measure for these studies. Although the term may not trip off the tongue, Richter thinks incommensurability addresses the gaping difference between indigenous, imperial, and colonial ways of defining such notions as justice, property, and communal or individual rights. His point brings to mind a conclusion reached by Pulsipher in her essay on John Wompas: the significant factor in Indian land sales in colonial New England was not that the English paid for the land, but that they paid so little for it. Indians accepted these small payments because they thought they were initiating reciprocal relationships that would endure beyond a one-time transaction; the English legitimized such small payments because they believed the Natives had only a tenuous property claim to the land they were selling. Each side comprehended that an exchange was occurring but each brought to it a vastly different method for measuring the value of the exchange.
Legal historians and ethnohistorians will derive the most benefit from reading the essays in this volume. Individually, there is not a clunker in the bunch. Collectively, they push our understanding of the legal dimensions of the European-Indian encounter forward, beyond facile comparisons of the British and Iberian models and assumptions of Native ignorance and colonial malevolence. The emphasis placed here on local variations in early American legal systems muddies the interpretive waters a bit, but in a way that ultimately encourages insight and clarification.
