Editors Note: Originally published in 2001 for “BREHON LAW PROJECT SYMPOSIUM” in Ireland. I found this article, destined to be lost in time as it was hidden on a downloadable .doc file, it wasn’t very well formatted for the Human eye, and the original author lost it in an unfortunate spring deletion spree. I haven’t changed any of the wording, only rearranged the formatting. Some of the reference numbers are missing material and some links go to dead websites. I’ve added links to these sites in The Wayback Machine where an archive is available.
James W. Zion is a jurisconsult who lives in Albuquerque, New Mexico. He is a 1966 graduate of the University of St. Thomas, St. Paul, Minnesota (B.A. history) and a 1969 graduate of the Columbus School of Law, Catholic University of America (J.D. 1969). He is the former Solicitor to the Courts of the Navajo Nation (1981-1983 and 1991-2001), and he has published extensively on traditional Indian law, Navajo common law, and the rights of Indians in international law. Zion is an adjunct professor in the Department of Criminal Justice of Northern Arizona University. He is a member of the Navajo Nation Bar Association and a partner with his wife, Elsie RedBird Zion (of the Navajo Red House and Salt clans), in Native Rights Advocates, a consulting and education firm.
Table of Contents
- Introduction: Of Infidels & Civilization
- The Celtic Experiment
- Development of the Rule of Recognition
- The Nature of Brehon and Indian Traditional Law
- Family Law
- Property Law
- Dispute Resolution
Man’s law changes with his understanding of man.
Only the laws of the spirit remain always the same.
This article has curious origins. In early November of 2001, I visited the Tribal Court Clearinghouse web site(1) and looked over the postings in the message forum. There was an interesting one from Vincent Salafia, who wrote, “Irish law and indigenous legal systems share a lot in common, in theory, practice, and history. The Case of Tanistry (1608), which abolished Brehon law, is one of the key links, since Ireland was the first adventure of the Common law, and the test of native laws developed there was used all around the world.” That piqued my curiosity, so I e-mailed Mr. Salafia, identifying myself and saying that there are indeed many parallels between Brehon and traditional American Indian law. In turn, he sent me an e-mail inviting me to speak at the Brehon Law Project Symposium, and attached the conference announcement. So, here we are.
This article will compare Irish Brehon law and traditional American Indian law (largely Navajo) in a search for shared experiences, commonalities, parallels, intersections, differences and potentials for synergetic or serendipitous discoveries that might be prompted by such an examination. I approach the process from the standpoint of someone who has studied traditional Indian law for a little over twenty years, worked in Indian nation court systems, and written on the use of traditional Indian law in contemporary times. I believe that traditional Indian law is a living body of law and that it has great potential for all schools of legal thought. I approach Brehon law, as did Professor Joseph R. Peden of the City University of New York, “conscious of my own lack of knowledge of the Irish language, and keenly aware of the shoals that await the historian who is not expert in this highly specialized field of study.”(2)
(2)Joseph R. Peden, Property Rights in Celtic Irish Law, 1(2) J. LIBERTARIAN STUDIES 81, 82 (1977). There is an excellent guide to Brehon law in Janet Sinder, Irish Legal History: An Overview and Guide to the Sources, 93(2) LAW LIBRARY J. 231, 237-243, 246-247 (2001). I am aware of the warnings in the literature about inaccuracies in descriptions of Brehon law that I would be unable to detect, so I relied heavily upon the Brehon Law Project’s webpage, Brehon Aid, and particularly Vincent Salafia’s review of Brehon law, Law, Literature and Legend, at that web site . I found a delightful little popular book, MARY DOWLING DALEY, TRADITIONAL IRISH LAWS (1998), that gave a taste of traditional Irish law. I also visited the on-line version of THE CATHOLIC ENCYCLOPEDIA (1907) to read Douglas Hyde’s treatment of Brehon Law, note that Henry Sumner Maine discussed it as Ancient Irish Law in the second of his LECTURES ON THE EARLY HISTORY OF INSTITUTIONS (1875), and that Prince Peter Kropotkin addressed Brehon principles in chapter 4, Mutual Aid Among the Barbarians, of MUTUAL AID: A FACTOR OF EVOLUTION (1902).
I chose a provocative title for this piece because I thought of two things when I began the fact that Lord Coke rejected the law of “infidels” in a case that established a precedent for the Case of Tanistry, and a delightful popular book I read a few years ago that pointed out that the Irish “infidels” in fact saved civilization.(3) Irish and American Indians have been subjected to a great deal of false stereotyping, and assumptions that since they were (choose one or more) “infidels,” “heathens,” “barbarians,” “savages,” or simply “the Other,”(4) their law was not worthy of recognition. I will attempt to show that Brehon and Indian law are, to the contrary, means of saving civilization. This article will, one, trace the growth of British Indian policy in the Americas based on experiments on Scots and Irish, two, discuss the development of British and American rules of recognition of the laws of indigenous peoples, three, generally review the nature of Brehon and Indian law, four, compare principles of Brehon and Navajo family and property law, five, contrast Brehon and Navajo methods of dispute resolution, and six, address the implications of the comparisons, including how those laws can save civilization.
(4) The European approach to “The Other” is a basic source of conflict, and Carlos Fuentes defined it, saying that “Beyond the national stereotypes … a number of significant factors created a Spanish and Spanish American tradition from the time of Roman domination. Nothing reveals the form of the tradition better than the clash with the Other, he or she who is not like you or me.” CARLOS FUENTES, THE BURIED MIRROR: REFLECTIONS ON SPAIN AND THE NEW WORLD 35 (1992). There is a Spanish tradition on the treatment of “the Other,” and a separate English one. The English treatment of the Irish as “The Other” colored the treatment of peoples around the world, leading to conflict today.
One day, while I was at the United Nations for discussions of the draft Declaration on the Rights of Indigenous Peoples1 in Geneva(5), Switzerland, I read How the Irish Saved Civilization in my hotel room. It was a weekend, and I read as I waited for my boss, Chief Justice Robert Yazzie of the Navajo Nation, to finish his exercises so we could tour Geneva. We went to the Reformation Monument in Bastions Park near the old city and sat on the steps, discussing the historical connections between the various leaders on the wall there and American Indian policy. One of the figures was Oliver Cromwell. As we talked, I teased Yazzie about an article I read about British experiments on Scots and Irish as tribal peoples,(6) saying, “My ancestors attacked wagon trains too! Roman wagon trains.” I explained that while our family oral tradition tells of origins in Ireland, I once found old ship records that showed people with the name “Sion” sailing from France to northern Ireland, and I had a sense that the area they came from could be near Geneva (which is on the border of France).(7) Yazzie did not appreciate my humor, because Navajos are sensitive about depictions of them as raiders. He also doesn’t care for my saying that Europeans such as Irish or Scots are indigenous or tribal peoples. However, recognition of the indigenous connections of “White” people is important for ethnic group relations.(8) Too often, we talk or write about what divides us by way of culture, language, or other differences, but we do not address what may unite us. I have pointed out to non-Indian audiences the fact that most (if not all) European peoples have tribal origins, and that should prompt them to have sympathy for modern tribal peoples and their ways. Many people do not understand why American Indians have their own governments and laws, and the right of tribal or indigenous peoples to have them is directly linked to Spanish and British policies that were developed to subjugate indigenous peoples—including Scots and Irish.
(5) E/CN.4/SUB.2/RES/1994/45 (1994).
(6) William Christie MacLeod, Celt and Indian: Britain’s Old World Frontier in Relation to the New, in BEYOND THE FRONTIER: SOCIAL PROCESS AND CULTURAL CHANGE 25 (Paul Bohannan & Fred Plog eds., 1967).
(7) JOHN O’HART, IRISH PEDIGREES (1892) has a list of the names of French refugees who were naturalized by letters patent, and the “Sion” family is among them. One Alexander Sion, a clerk, got his English “warrant for denization” on March 13, 1693.
(8) I prefer to reject the terms “race” and “race relations,” because I think that the primary conflict is about culture and economic class rather than race. It is difficult to place Indians in American discourses about race, because they are political groups in addition to being ethnic ones. I recall the story a Chippewa woman from Montana who had lived in the South when it was still segregated. She didn’t know which bathroom she could use! When she asked, she was told that Indians could use the “White” facilities. There is a related discussion in NOEL IGNATIEV, HOW THE IRISH BECAME WHITE (1996). He says that while Irish immigrants of the mid-nineteenth century were looked down upon as inferior and were discriminated against, ultimately they allied themselves with their oppressors, assuming “white” ways, which are cultural and have to do with power, wealth, and class. See also, Z Magazine: An interview with Noel Ignatiev, in RACE TRAITOR: J. OF THE NEW ABOLITIONISM (n.d.); and Jared Taylor, The Racial Revolution, 10(5) AMERICAN RENAISSANCE 1 (1999).
Spanish Indian policy is essentially the basis of British and later American policies toward Indians.(9) It is difficult to know the extent to which the British consciously adopted or imitated Spanish policy.(10) We know, for example, that Francisco de Vitoria’s 1532 lectures on the rights of Indians, “On the Indians Lately Discovered,”(11) were published in book form in Lyons in 1557, in Salamanca in 1565, and in Goldstadt, Germany in 1580, and the book “was very popular throughout Europe.”(12) Victoria’s tract, authored by the founder of modern international law,(13) was and is important, because it establishes the foundations for the recognition of indigenous law and government. Another popular writer was Bartolome de Las Casas, who published his Brevisima Relacion de la Destruccion de las Indias in Seville in 1552.(14) The first publication in English was in 1583, and it was taken from a 1579 French edition.(15) It was published again in 1656.(16) The title of that edition was, “The Tears of the Indians: Being An Historical and true Account Of the Cruel Massacres and Slaughters of above Twenty Millions of innocent People & Committed by the Spaniards In the Islands of Hispaniola, Cuba, Jamaica, &c. As also, in the Continent of Mexico, Peru & Other Places of the West-Indies To the total destruction of those Countries.”(17) It was translated by “J.P.” and published by “J.C.”(18) The publisher added a quotation from scripture he felt was appropriate to the subject,(19) and it was dedicated to Oliver Cromwell.(20) The dedication implores him to unleash his “just anger” against the Spanish, citing “Twenty Millions of the Souls of the slaughter’d Indians,” adding that the Spanish massacres were “far surpassing the Popish Cruelties in Ireland.”(21)
(9) Felix S. Cohen, The Spanish Origin of Indian Rights in the Law of the United States, 31(1) GEORGETOWN L. J. 1 (1942); FRANCIS PAUL PRUCHA, AMERICAN INDIAN POLICY IN THE FORMATIVE YEARS (1962).
(10) The issue is one of religion. When England broke with the Catholic Church in 1534, that ended a legal prohibition against England intruding upon the exclusive interests of Spain and Portugal in the Americas, fixed by papal bulls. While the English were reluctant to cite bulls or Spanish legal tracts on Indians, they obviously read them. You can see small pieces of evidence that American lawyers, such as Thomas Jefferson, likely relied upon Church and Spanish legal documents in framing American Indian law and policy. There are excellent discussions of Church and Spanish policy development in ROBERT A. WILLIAMS, JR., THE AMERICAN INDIAN IN WESTERN LEGAL THOUGHT: THE DISCOURSES OF CONQUEST (1990) and BRIAN TIERNEY, THE IDEA OF NATURAL RIGHTS: STUDIES ON NATURAL RIGHTS, NATURAL LAW AND CHURCH LAW 1150-1625 255-187 (1997). Williams, an outstanding scholar and a friend, is critical of the Church in his assessments. One fine day, he may accept my invitation to have a public debate over the “half full-half empty” nature of the Church’s negative and positive contributions to Indian law and policy.
(11) FRANCISCO DE VITORIA, DE INDIS ET DE IURE BELLA RELECTIONES (Ernest Nys ed., 1917).
(12) Williams supra note 10, at 169.
(13) Id. at 114-115 n. 135. There is a debate over whether Vitoria deserves the title, but it is popularly attributed to him. If that is the case, then the first modern international law text by a jurist was on the just war doctrine and the rights of Indians
(14) BARTOLOME DE LAS CASAS, A SHORT ACCOUNT OF THE DESTRUCTION OF THE INDIES (1992); BARTOLOME DE LAS CASAS, THE DEVASTATION OF THE INDIES: A BRIEF ACCOUNT (1992). See also, BARTOLOME DE LAS CASAS, IN DEFENSE OF THE INDIANS (Stafford Poole trans., 1992).
(16) BARTOLOME DE LAS CASAS, TEARS OF THE INDIANS & SIR ARTHUR HELPS, THE LIFE OF LAS CASAS vi (1970). One English translation of the book’s title is “Briefest Relation of the Destruction of the Indies.” However, the word “relation” has a particular meaning in Spanish. It is a report to the crown, and most Spanish explorers and conquerors, from the time of Columbus, made them. Las Casas wrote his account of Spanish atrocities against Indians precisely to influence the crown and Spanish Indian policy.
(17) Id. (capitalization in the original).
(18) Id., title page following an introduction. It was dangerous to publish on politics in those days, so it was common for authors and editors to use initials or remain anonymous.
(19) Id. Deut. 29.15. “Therefore thine eye shall have no compassion; but life for life, tooth for tooth, hand for hand, foot for foot.”
(20) Id. at 1-2.
(21) Id. at 2 (italics in the original).
Cromwell ordered the plantation of Ulster to end the “native problem” there, but there were three other regions that “remained tribal and barbarian (although Catholic in religion).”(22) “These three provinces were subjugated by the Puritan dictator, Oliver Cromwell, who had no doubt read the book on Spanish Indian massacres which so affectionately had been dedicated to him by the nephew of John Milton, the poet who made Satan a hero.”(23) The English version of Las Casas’ work also had a message “To all true ENGLISH-MEN,” urging them to take up the “just cause” against the Spanish, and reminding them of English claims in the New World.(24)
The obvious intent of publishing Las Casas’ plea for Indian rights in England was to stir up the English against the Spanish, and use the pretext of Spanish atrocities against Indians as a ground for intervention in both the New World and Europe. (25) However, the English of the time were preoccupied with their own frontier, and indigenous peoples closer to home in Scotland and Ireland. Cromwell made his policy for Ireland with illustrative examples in a book dedicated to him:
The butchery he proceeded with there [in Ireland], even in light of the ethics then generally prevalent in Europe, was more than in any way could be condoned. But it was successful. “The Curse of Cromwell” brought civil government to Ireland. Over eighty thousand natives were shipped to the West Indies as chattel slaves, there to toil alongside the negroes, and alongside the Indians enslaved and shipped abroad by the Puritans of New England in the same period. And of the native population of at most one million, about one-fourth died by the sword and by starvation.
Even at this Cromwell did not attain all his ends. For although in 1654 the hand-picked Parliament denied it officially, it was evident that the object of Cromwell and the hope of Parliament was the extermination of the million natives of wild Ireland!
Resistence ending on the part of the natives, open extermination was no longer planned or hoped for. A unique reservation scheme was devised, which was planned to result in the death of hundreds of thousands. In September 1653, order was given that all natives still living in the two provinces of the east and south should get out and emigrate to the western province, Connaught. Any native found outside Connaught by May 1, 1654, was to be put to death. The Puritans apparently anticipated a substitute on May Day for the May Pole which they so detested. Those who were not executed on May 1, if they reached Connaught would probably starve, for barren, stony Connaught had all the population it could support. The natives started to trek to their great reservation in the West, but before the coming May so many exceptions to the rule had been made that most of them never had to leave. It had been soon realized that native labour was necessary for the east and south, immigrants enough not being available.(26)
The standard features of British Indian policy–corporate charters for exploration, conquest and settlement;(27) the attempted annihilation of distinct peoples;(28) slavery;(29) broken treaties;(30) forced relocation;(31) and reservations(32)–were tried out first in Ireland, and the same techniques were transplanted to the Americas (along with many Irish and Scots, who were driven off their land),(33) and the law that would be developed to address how indigenous peoples should be considered and treated was an essential part of British indigenous policy—in the Americas and in the lands of indigenous peoples around the world. Those policies are largely intact in the United States of America,(34) and they are re-emerging in other former colonial countries and international for a.(35) One of the major issues is the extent to which modern governments should recognize indigenous law, such as traditional Indian law and even Brehon law.
Catholic canon law and theology played an important role in the formation of the law used to justify the conquest and subjugation of indigenous peoples,(36) and the Church still addresses indigenous issues. The core problem is whether the Church was (or is) a handmaiden of conquest or a sometime voice of conscience. Exploration, exclusive trade and occupation rights, and the European presence in the Americas was a continuation of the Crusades against Islam. A practice developed in the middle ages for European princes to seek a papal bull to ratify and support their initiatives. Following debates over the right of “infidels” to govern their lands, princes and kings sought papal bulls to confirm exploration in Africa and elsewhere.(37) Prior to Columbus’ voyage, the Spanish sent emissaries to Rome for papal endorsement of their enterprise, and in 1493, Pope Alexander VI issued three papal bulls, known collectively as Inter Cetera, which confirmed exclusive rights the Spanish and Portuguese to explore and occupy the Americas.(38) Given an historical accident out of ignorance of geography, Spain got papal endorsement of the right to exclusive occupation of most of the Americas, and that is why most of Latin America is Spanish-speaking, and the official language of Brazil is Portuguese. The Church noticed the atrocities committed against indigenous inhabitants of discovered lands, and the pope attempted to prevent them in the 1453-1454 bulls, Romanus Pontifex,(39) which prohibited European occupation of the Canary Islands, because its population had largely been wiped out. (40) An earlier example of conquest under pretext of papal authority was the bull Laudabiliter, purportedly issued by Adrian IV in 1156 to authorize Henry II’s conquest of Ireland.(41) While papal bulls are no longer a recognized instrument of legal justification (now being replaced by United Nations or regional resolutions, declarations and conventions), ancient bulls in favor of human rights are still relevant today. (42)
(22) MacLeod supra note 6, at 40-41.
(23) Antonio Truyol y Serra, The Discovery of the New World and International Law, 1971
Longstanding debates over the secular rights of non-Christians to their liberties and lands were the basis for European policies on the Americas. Indians were different—unlike other heathens and infidels, they had no notion of Christ or Christianity, and that affected policies toward them, while the earlier heathens and infidels supposedly knew about Christ and rejected His faith, so there was no excuse for them.(43)The Irish fell into the category of “infidel” because they were the wrong kind of Christians, as far as the English were concerned.(44) Religious discourses over rights affected secular law as it developed,(45) and one of the principle secular legal issues was the extent to which a court would recognize the rights of aliens, accept indigenous custom as law, apply pre-existing customary law, or permit separate indigenous law and government in legal pluralism, as case law or legislative rules of recognition.
The first English case on point was Calvin’s Case, and it was decided in Trinity Term of the sixth year of the rule of James I (1608).(46) The question was whether Robert Calvin, who was born in Scotland after the accession of King James I, as an alien, could bring an action for land in England.(47) The court ruled he could, but in his encyclopedic way, Lord Coke’s opinion touched on many points, including an issue that was not directly relevant to the issue in the case, the law of alienage. He wrote:
But a perpetual enemy (though there be no wars by fire and sword between them) cannot maintain any action, or get anything in this realm. All infidels are in law perpetui inimici, perpetual enemies (for the law presumes not that they will be converted, that being remota potentia, a remote possibility), for between them, as with devils, whose subjects they be, and the Christian, there is perpetual hostility, and can be no peace.(48)
The Case of Tanistry(49) presented a slightly different situation—whether the Irish Brehon law of inheritance of a royal title would be recognized in English law. Calvin’s Case was a procedural standing case, and Tanistry was a choice of law case. In a lengthy opinion, written in Law French, the King’s Bench ruled that Brehon custom would not be applied, saying (among other things in the report), “Et ceo est le veray cause del barbarisme & desolation que fuit en touts les Irish counties ou ce custome de tanistry fuit en use.”(50) Put in modern English, that would be, “And that is the very cause of barbarism and desolation there is in the Irish counties where that custom of tanistry was in use.” Although Irish had been Christians for centuries, they were the wrong kind of Christians for Protestant England.(51) They were put in the same classification as infidels in Calvin’s Case. Fortunately, for American Indians, Lord Coke’s position was rejected in the 1640 Anonymous Case.(52) It was specifically overruled in Omichund v. Barker as being contrary to scripture, common sense and humanity.(53) The English rule of recognition was finally entrenched in Campbell v. Hall, where Lord Campbell ruled, in a tax case involving the Royal Proclamation of 1763,(54) that the laws of an acquired territory remain in force until altered by the crown.(55)
(24) Las Casas, supra n. 16 at 3-6.
(25) The publication of Tears of the Indians likely began the “Black Legend” of Spanish cruelty. Many people still accept it and are unable to see the myth for what it was—propaganda. Writers attack Las Casas, saying he was wrong or paranoid, but aside from being a bishop, he was a lawyer and an advocate of Indian rights whose arguments fell squarely within the medieval legal tradition. Kenneth Pennington, Bartolome de Las Casas and the Tradition of Medieval Law, 39 CHURCH HISTORY 149 (1970). The English had to justify their adventures in the Americas, and rather than heed Las Casas’ warnings, they too embarked on colonization using racist and religious motivations. See, Kathryn Rummell, Defoe and the Black Legend: The Spanish Stereotype in A New Voyage Round the World, ROCKY MOUNTAIN REVIEW 13 (Fall 1998) (tracing the Protestant-inspired “Black Legend” in English literature); and Gregory Cerio, Were the Spanish That Cruel? NEWSWEEK 48 (Fall/Winter 1991) (Columbus Special Issue) (debunking the myth but failing to see it as propaganda).
(26) MacLeod supra note 6, at 40-41.
(27) Id. at 25, 31. MacLeod maintains that one major difference between English and Spanish policy was that the English used private ventures for conquest, while Spanish conquest was a state operation. Id. at 33. That is not quite true, because the Spanish crown granted charters or licenses for exploration and settlement, as with the settlement of Nuevo Mexico in 1598.
(28) Id. at 31, 32, 33, 34.
(29) Id. at 40.
(30) Id. at 38.
(31) Id. 40-41.
(32) Id. at 26 (reservations in Ulster, 1609), 33, 34 (Scotland), 34-36 (Irish reservations), and 40 (the Connaught reservation of 1653).
(33) England was about to get involved in the process of state expansionism to the New World, and Scots and Irish who were pushed out of their homelands are an example of the use of ethnic or indigenous peoples to fight for their conqueror to conquer other peoples. See, R. Brian Ferguson & Neil L. Whitehead, The Violent Edge of Empire, in WAR IN THE TRIBAL ZONE: EXPANDING STATES AND INDIGENOUS WARFARE 21-23 (Brian Ferguson & Neil L. Whitehead eds., 1992). Irish-Indian contact emerged from the 19th century diaspora of Irish Catholics, who joined the United States Army and are immortalized in John Ford’s “Cavalry Trilogy,” which depicts Irish cavalrymen as loveable sots who fought noble savages. The Indians got John Wayne as an Irish hero figure in FORT APACHE (Argosy Pictures 1948), SHE WORE A YELLOW RIBBON (Argosy Pictures 1949) and RIO GRANDE (Argosy Pictures 1950), while the Irish got Wayne in THE QUIET MAN (Republic Pictures 1952). Many Navajos detest John Wayne and his movies (although Navajos starred in several of them–his Navajo name was “Hosteen Nez,” or “Long Man”), and he was banned from our home by my Navajo wife until she relented and now buys the movies for my elderly father (who loves them). For an analysis of Irish trooper stereotypes in “The Cavalry Trilogy,” See, Jack Morgan, The Irish in John Ford’s Seventh Cavalry Trilogy–Victor McLaglen’s Stooge-Irish Caricature, 22(2) MELUS 33 (1997) (Gee–I’ve always been fond of McLaglen in the movies, and I didn’t know he was from South Africa!). Religion and discrimination was an ongoing issue for Irish in America, as with a group of people who deserted the U.S. Army to join the Mexicans because of ethnic and religious discrimination and became immortal. See, ROBERT RYAL MILLER, SHAMROCK AND SWORD: THE SAINT PATRICK’S BATTALION IN THE U.S.-MEXICAN WAR (1997) (a delightful read).
(34) Charters of exploration and settlement are replaced by modern corporate activities; the annihilation of distinct peoples is now the attempt to assimilate them (genocide is now “ethnocide” or an attempt to get distinct peoples to join the homogenous goo of “the melting pot”); Indian treaties continue to be ignored or broken; and reservations are still a way of life. On the issue of assimilation, there are two general assimilationist policies in the United States–the “Whig” model of vague treaties, some governmental independence, and the use of Indian leadership to control Indian populations–attempts to assimilate Indians as individuals. The “Utilitarian” model of assimilation is an attempt to assimilate Indians as a whole, as they are declared to simply be “minorities” with no special right to self-government. See, Bruce B. MacLachlan, Indian Law and Puebloan Tribal Law, in NORTH AMERICAN INDIAN ANTHROPOLOGY: ESSAYS ON SOCIETY AND CULTURE 340, 343 (Raymond J. DeMallie & Alfonso Ortiz eds., 1994). The Whig model prevails in the United States, with periodic suggestions of a switch to the Utilitarian model, and the recent Indian rights provisions of the Mexican Constitution are unsatisfactory to Mexico’s Indians because it is a Utilitarian model–the same as the one in the 1821 “Plan de Iguala,” which declared Indians to be “citizens” and equals–for the purpose of stripping them of their rights under Derecho Indiano, Spanish Indian Law, and seizing Indian land. See, G. Emlen Hall & David J. Weber, Mexican Liberals and the Pueblo Indians, 1821-1829, 59(1) NEW MEXICO HISTORICAL REV. 5 (1984).
(35) See, e.g., Charles E. Ehrlich, Aboriginal Land Rights: The Effect of Common Law Decisions in Canada and Australia on International Law, 7 NEW ENGLAND INT. & COMP. L. ANNUAL 1 (2001) and Mark D. Walters, infra, notes 71 & 73.
(36) The interplay of canon and secular law is central to the formation of western legal traditions. HAROLD J. BERMAN, LAW AND REVOLUTION: THE FORMATION OF THE WESTERN LEGAL TRADITION (1983).
(37) Williams, supra note 10, at 68-69, 72.
(38) Id. at 80-81. See also, James Muldoon, Papal Responsibility for the Infidel: Another Look at Alexander VI’s Inter Cetera, 64 CATH. HIST. REV. 168 (1978).
(39) Williams, Id. at 68-69.
(40) Some think that the inhabitants of the Canaries were of American indigenous stock. The depopulation of the Canaries later prompted forced settlement by Indian slaves from the Americas. See, JACK D. FORBES, AFRICANS AND NATIVE AMERICANS: THE LANGUAGE OR RACE AND THE EVOLUTION OF RED-BLACK PEOPLES (1993). Muldoon, supra note 38, at 178-180, states that atrocities committed against the natives of the Canary Islands influenced papal policy toward indigenous peoples and motivated a policy of requiring that they be protected. That policy made its way into the Inter Cetera bulls.
(41) The Avalon Project, Yale Law School, The Bull of Pope Adrian IV Empowering Henry II to Conquer Ireland, (citing “Lyttleton’s ‘Life of Henry II.,’ vol. v. p. 371, and indicating that the source of the document was ERNEST F. HENDERSON, SELECT HISTORICAL DOCUMENTS OF THE MIDDLE AGES (1896). The document quotes Henderson’s speculation that the bull was not authentic). When discussing the bull at the symposium in Dublin, I was told that the bull was indeed bogus.
(42) See, e.g., the November 3, 1988 Catholic Church position paper on racism, which cites some of the more progressive bulls. Robert Cardinal Etchegary & Jorge Mejia, Pontifical Commission Justice and Peace, The Church and Racism: Towards a More Fraternal Society (November 3, 1988).
(43) Antonio Truyol y Serra, The Discovery of the New World and International Law, 1971
(44) The pretext for the issuance of Adrian IV’s [invented] papal bull authorizing Henry II to invade Ireland, Laudabiliter (1156), was a lack of Irish Catholic orthodoxy and the need to “‘enlarge the boundaries of the church, to restrain the downward course of vice, to correct evil habits and introduce virtue and to increase the Christian religion.’” JAMES LYDON, THE MAKING OF IRELAND 50-51 (1998) (Lydon accepts the authenticity of the bull). The English were fortunate to have an English pope to bless the crusade against the Irish, just as the Spanish had a Spanish pope to endorse their expansion into the New World in the 1493 Inter Cetera bulls. It is time for Indians to have a pope too, and I nominate Bishop Donald E. Pellotte of Gallup, New Mexico, the first American Indian Catholic bishop. He and I agree that the humanistic and protective provisions of Inter Cetera should be enforced, and that Indian rights must be respected because of the 1537 bull, Sublimus Deus. It declared that Indians were “human,” and that they were entitled to their liberty and property.
(45) See, Berman, supra note 36.
(46) (1608) 6 Eng. Rep. 377.
(47) Id. at 379.
(48) Id., at 397. See also, Williams’ discussion of the case, supra note 10, at 199-200.
(49) Le Case de Tanistry, (1608) 9 Eng. Rep. 516.
(50) Id. at 521.
(51) While Calvin’s Case does not say it, it is likely that Robert Calvin was a Protestant rather than a Catholic Scot, otherwise he would have had a religious impediment to making a clam to English land. When England broke from the Catholic Church, there were a series of statutes enacted for England and Ireland which prohibited Catholics from owning land, holding public office, possessing firearms, and living within a certain distance from London. See ANONYMOUS [HENRY CARE], BRITISH LIBERTIES OR THE FREE-BORN SUBJECT’S INHERITANCE 290-367 (1776 ed.) (collection of anti-papist statutes).
(52) (1640) 1 Salk 46 (JP).
(53) (1744) Willes 538 (Ch) at 538.
(54) That proclamation, which has been held to be an “Indian bill of rights,” established “Indian Country” across a line down North America, with one side for colonists and the other for Indians, and limitations on land sales. It was one of the causes of the American Revolution. See, The Queen v. Secretary of State,  2 All ER 118 (CA) for the British Court of Appeals’ interpretation of the Proclamation as an Indian “Bill of Rights.”
(55) (1774) 1 Cowp. 204; [1558-1774] All E.R. Rep. 252.
The ruling in Tanistry that the Irish custom, being “barbaric” (among other things), could not be recognized was bad law in later years. Actually, it was bad law at the time. One of the major debates throughout western history has been the extent to which the laws and legal procedures of countries or peoples conquered by others should remain in force and be respected. There was also the question, prompted by various crusades against other “infidels” after the time of Christ, of whether only the laws of Christians would be recognized as valid.
The rule of recognition began with Roman law. As it developed, the Romans established a principle of legal pluralism that it is possible to have different kinds of law and institutions for different people within the empire. Accordingly, when the Romans created their empire, they allowed local legal institutions to apply their own law,(56) and on occasion, Roman judges would recognize judgments based on local law. The most prominent example is the trial of Christ, where He was tried and convicted by a Jewish court under Jewish law, and executed under Roman law when Pilate recognized the Jewish judgment.(57)
Early on, Thomas Aquinas (1225-1274) settled the issue of whether “infidels” could make law in his Treatise on Law, questions 90 through 97 of the Summa Theologica. The infidel or “barbarity” issue was addressed in the question, “Whether there is a law in the fomes of sin?”(58) Given that law is a rule of reason and all humans possess reason, Aquinas maintained that any human could make law.(59) Also, Brehon and Indian law are forms of customary law, and when addressing the question, “Whether custom can obtain force of law?”(60) Aquinas essentially said that custom is law, and it can overcome positive law, because what people do is more fundamental than what they say.(61) There is a direct link between Aquinas’ view that law is a rule of reason and since all humans possess reason, they can make law, and Vitoria’s lectures on the rights of Indians. Vitoria was a Dominican (the same order as Aquinas) who studied scholasticism in Paris, and Vitoria played a leading role in reviving Thomistic doctrine.(62)
There was a countervailing discourse–the discourse of crusade. Shortly before Aquinas, Pope Innocent III (1198-1216) issued a decretal, Quod super his, which asked whether it was “licit to invade a land that infidels possess, or which belongs to them?”(63) He answered in the affirmative, defending crusades against infidels and laying out the conditions that justified Christian warfare against infidel nations.(64) A more extreme view was put forward by a canon lawyer, Hostiensis (1200-1271), and in his Opinio Hostiensis on Quod super his, he said that “It seems to me that with the coming of Christ every office and all government authority and jurisdiction was taken away from every infidel lawfully and with just cause and granted to the faithful through Him who has the supreme power and who cannot err.”(65) Thus, it is easy to see Lord Coke’s source for his broad conclusion in Calvin’s Case that infidel law could not be recognized, and it is possible that the King’s Bench had the bogus bull of crusade for Ireland in mind as a precedent in the Tanistry opinion.
When Coke was writing on a blank legal slate for England, he may have had a political agenda. When he was the attorney general, he prosecuted Sir Walter Raleigh for high treason and got back Raleigh’s rights to Virginia for the crown.(66) Two groups of merchants lobbied for those rights, but some London merchants had Sir John Popam as a patron, and their advisor was Richard Hakluyt. Popham was the Chief Justice of England, and Hakluyt was a lawyer who promoted colonization in the Americas.(67) His cousin, also named Richard Hakluyt, wrote a tract, Divers Voyages Touching the Discovery of America, which advised English settlement in the Americas, as against the rights of Spain.(68) On April 10, 1606, the crown granted a charter to the London merchants to form the Virginia Company, and “the likely drafters of this 1606 legal text, by which the first permanent English colony in America was to be established at Jamestown, included the two finest legal minds in England at the time, Lord Chief Justice Sir John Popham, and another principal in the venture, Sir Edward Coke, this time applying the law of the realm as attorney general to the Crown. Coke’s presumption in Calvin’s Case that the king was at perpetual war with infidels and could thereby initiate a crusade of conquest was here incorporated as part of the royal contract authorizing the English invasion of America.”(69) The preamble to the charter recited the “fact” of the infidel and savage nature of the inhabitants of America and gave the Virginia Company the mission to bring enlightenment and Christianity to them.(70) Coke also had a hand in the English policies toward the Celts when he was a Judge of Common Pleas, helping write a treaty of union with Scotland and the scheme for the plantation of Ulster in Ireland.(71) Coke was able to salt the law with his decision in Calvin’s Case (followed in the Case of Tanistry) to confirm the activities of the Virginia Company in relation to Indians, and the political motivation in suppressing the Irish customary practice of electing kings (rather than inheriting both the land and the title by primogeniture) was obvious. Primogeniture was the rule of inheritance and royal succession in England, and we can’t have the people choosing kings, can we? At the time, the English right of royal succession was touted as a divine right and not a popular one.(72) At end, Coke and the English judges ruling about Ireland chose the crusading discourse over the humanist discourse.
Despite that, more recent scholarship has re-examined the connection between the English common law and modern rules of recognition that are emerging in common law decisions of former British colonies. There are now two lines of modern recognition decisions–those developed in the United States in relation to their Indian inhabitants, and those that are in the process of development in British Commonwealth countries. The general American rule, by both case decisions(73) and statute,(74) is that Indian law is “law,” and it is recognized as such. Mark D. Walters has written two excellent articles on the English rule of recognition following the completion of his doctoral dissertation on recognition.(75) The first is an analysis of Mohegan Indians v. Connecticut, a series of English decisions that are part of the debate in Canada over the nature and extent of First Nation legal and political rights.(76) In it, he mines old ground and concludes that under English common law, the existing law of conquered peoples remains, and the English rule is legal pluralism.(77) The second article is sweeping in its scope, and concludes that there is a solid English common law basis for the recognition of indigenous rights, so the rule of the continuity of indigenous law and rights is grounded in, one, precedent and past practice, two, the separation of powers in English government (i.e. while the Parliament can abolish or modify the pre-existing law of conquered peoples, the courts should not overrule the royal prerogative to accept or abolish that law), three, both the rule of law and necessity, and four, fairness and humanity.(78) The general rule for indigenous peoples’ law is that it continues to exist following conquest, and there was a “hybrid” rule for Ireland that pre-existing customary law would continue to be recognized under municipal common law as particular customs, in addition to the pre-existing law of a conquered nation.(79)
Finally, the rule of recognition is part of customary international law, and it is incorporated in Article 27 of the International Covenant on Civil and Political Rights, which Ireland adopted in 1973.(80) It establishes the rights of ethnic, religious, and linguistic “minorities” to enjoy the “right to culture,” and that includes the right to have one’s own laws.(81) The right to enjoy culture is an international law right that all people have, and that should include the cultural expectation that the values found in traditional law should still be recognized and used, as they apply in contemporary society.
In sum, legal pluralism is the norm. There are those who repeat the ancient and seemingly common-sense notion that “there must be one law for all.” There are equality-based arguments against “special rights” for indigenous peoples,(82) and we have an example of the divisiveness of extending one kind of law over all inhabitants in the controversy over applying Islamic law to everyone in Nigeria.(83) However, the focus of this article, in comparing Brehon and Indian law, is more narrow, and I do not address the larger issue here. The point is that law is about values.(84) They are carried in language, and Ireland recognized that in reviving its original language.(85) Brehon and Indian law legal principles are similar because, unlike modern Irish, American, or English statutes, they are not “rules” which necessarily apply as such.(86) The same is true of Brehon law, and the compilations of the brehons, and “‘They are essentially digests rather than codes, compilations in fact, of learned lawyers.’”(87) One of the sources of Brehon law, “The Senchus Mor embodies community, even tribal values of ancient origin, which both contrast and compare with modern law and jurisprudence.”(88) Law as values can be particularly seen in the Irish tradition of “triads,” where principles are expressed in groupings of three.(89) Such traditional expressions persist as the carriers of values, and they are vital to inform both the originating culture and other cultures. They are sources of base values, and they can be used in conciliatory negotiations and discussions to reach common ground. They are not necessarily values to be applied to a problem by a judge, or enforced by a prosecutor or plaintiff’s attorney, but ones that are part of our heritage and define us. In asking for recognition of unique values, we ask for recognition of the dignity of cultures.
(56) “It was a general principle which marked the early Roman policy in Italy to allow a subject community to retain its own municipal laws, and to administer justice between its own citizens, so far as this was consistent with a state of subjection to Rome.” WILLIAM C. MOREY, OUTLINES OF ROMAN LAW 64 (1900). Spain adopted the Roman policy with regard to Jews and Moslems, and that was the policy that was taken to the New World with respect to Indians. WOODROW BORAH, JUSTICE BY INSURANCE: THE GENERAL INDIAN COURT OF COLONIAL MEXICO AND THE LEGAL AIDES OF THE HALF REAL 6-24 (1983) (development and implementation of the policy prior to the conquest of Mexico). Another historian points out the Moorish legal influence on policies of group autonomy, law, and legal institutions. PATRICIA SEED, CEREMONIES OF POSSESSION IN EUROPE’S CONQUEST OF THE NEW WORLD 1492-1640 69-99 (1995).
(57) After Christ went before the Sanhedrin, He was taken before Pilot, the Roman governor, for the imposition of a death sentence. Matthew 27:1. Pilate knew that the charges were motivated by jealousy, Id. 27:18. When the crowd demanded that Christ be crucified,
“‘Why,’ he asked. ‘What harm has he done?’” Id. 27:23. When the crowd again demanded crucifixion, “Then Pilate saw that he was making no impression, that in fact a riot was imminent. So he took some water, washed his hands in front of the crowd and said, ‘I am innocent of this man’s blood. It is your concern.’” (The Jerusalem Bible translation.) Thus, while Pilate was aware of the unjustness of the charges, he enforced a “tribal court” judgment as being in harmony with Roman policy.
(58) THOMAS AQUINAS, TREATISE ON LAW (SUMMA THEOLOGICA, QUESTIONS 90-97) (n.d.). “Fomes” is “any agent, as clothing or bedding, that is capable of absorbing and transmitting the infecting organism of a disease.” <<http:allwords.com>> (visited on December 22, 2001). Aquinas apparently wanted to make a point, using this term, that even someone who is diseased from being in a state of sin can still make law. That applies equally to “infidels” and public sinners (e.g. President Bill Clinton), and it relates to an ancient heresy that leaders who are in a state of sin cannot make law.
(59) Id. 26-29. Aquinas spoke to popular or customary law in the third article of Question 90, saying that “A law … regards first and foremost the order to the common good. Now to order anything to the common good, belongs either to the whole people, or someone who is the vicegerent of the whole people. And therefore the making of a law belongs either to the whole people or to a public personage who has care of the whole people.” Id. at 8. Note that the term“the whole people” comes before the vicegerent or “a public personage.”
(60) Id. 110.
(61) Id. at 110-113. That is my gloss on Aquinas. I am opposed to legal positivism and parliamentary supremacy, and agree with nineteenth century judges that the common law approach is superior to legislation. “Hence it was not rare for the judiciary to regard, and go on to brand, the legislature—that pedestrian and temporary branch, charismatic thought it be—as a mere excrescence.” CHARLES M. HAAR & DANIEL WM. FESSLER, FAIRNESS AND JUSTICE: LAW IN THE SERVICE OF EQUALITY 119 (1986). When I read that, I reached for my dictionary—an “excrescence” is a wart.
(62) 2 QUENTIN SKINNER, THE FOUNDATIONS OF MODERN POLITICAL THOUGHT 135-136 (1978).
(63) Williams, supra note 10, at 44.
(65) Id. at 64-65. See also, Muldoon, supra note 38, for a discussion of Quod super his and the Opinio Hostiensis and their impact on the papal doctrine of the treatment of non-Christians. Innocent and Hostiensis wrote after the fictitious 1156 bull permitting the conquest of Ireland, which would have been one of the first bulls of conquest.
(66) Williams, Id. at 201.
(67) Id. and at 156.
(68) Id. at 156-157. His 1584 work, The Discourse of Western Planting, recites the need to spread the Gospel (Item 1), Spanish cruelty (Item 11), and says that settlement in America would be “An aunswer to the Bull of the Donation of all the west Indies graunted to the kinges of Spaine by Pope Alexander the VI whoe was himself a Spaniarde borne” (Item 19). 1584 Richard Hakluyt, Discourse of Western Planting.
(69) Williams Id., at 201-202.
(70) Id. at 201. There is a good review of English religious motivations, the influence of Richard Hakluyt’s book, and Coke’s participation in the 1608 Virginia Company charter in Fabian Tompsett, 1606 and all that: the Virginian conquest, 41(3) RACE & CLASS 29 (2000).
(72) JOHN N. FIGGIS, DIVINE RIGHT OF KINGS (1990).
(73) Johnson v. M’Intosh, 21 U.S. (8 Wheat.) 543 (1823) (one buying land from Indians “incorporates” with them and is subject to their law); Ex Parte Crow Dog, 109 U.S. 556 (1883) (traditional Indian criminal law applies in Indian country); Jones v. Meehan, 175 U.S. 1 (1899) (recognizing traditional probate law); United States v. Quiver, 241 U.S. 602 (1916) (recognizing traditional family law and the Indian right to regulate domestic relations); Fisher v. District Court, 424 U.S. 382 (1976) (Indian family law “pushes out” state law); United States v. Wheeler, 435 U.S. 313 (1978) (specifically recognizing traditional Navajo criminal law [although the Navajo Nation had adopted a western criminal code]); and Duro v. Reina, 495 U.S. 676 (1990). The last case initiated a trend in the United States for federal judges to recognize the validity of traditional Indian customary law but say that people cannot understand it. Duro was a California Indian who committed a homicide in the Salt River Indian Reservation outside Phoenix, Arizona, and the United States Supreme Court said that he would not able to understand traditional Pima-Maricopa law (which utilizes customary law), so it would “unfair” to subject him to that law. The charge in tribal court was the illegal discharge of a firearm, a “customary” principle that is not hard to understand.
(74) The Indian Tribal Justice Act of 1993, Public Law 103-176 (codified at 25 U.S.C. §§ 3601 et seq.).
(75) The Continuity of Aboriginal Customs and Government Under British Imperial Constitutional Law as Applied in Colonial Canada, 1760-1860 (D. Phil. Oxford University 1995).
(76) Mark D. Walters, Mohegan Indians v. Connecticut (1705-1773) and the Legal Status of Aboriginal Customary Laws and Government in British North America, 33(4) OSGOODE HALL L. J. 785 (1995)
(77) Id. at 701. Walters discusses Tanistry at 791, 792 and 798. He notes the rule of recognition for Ireland in relation to the recognition of septs, despite the rule that the law of savages would not be recognized. Id. at 796. For a comprehensive and insightful analysis of the development of American legal pluralism through Indian law, see, Dalia Tsuk, The New Deal Origins of American Legal Pluralism, 29 FLA. ST. U. L. R. 189 (2001)
(78) Mark D. Walters, The “Golden Thread” of Continuity: Aboriginal Customs at Common Law and Under the Constitution Act, 1982, 44 McGILL L.J./REVUE DE DROIT DE MCGILL 711 (1999). The four foundations are discussed beginning on pages 722, 723, 724, and 727
(79) Id. at 718-719.
(80) PAUL SIEGHART, THE INTERNATIONAL LAW OF HUMAN RIGHTS 448 (1983). The Covenant is General Assembly Res. No. 2200A(XXI) (1966).
(81) See, FRANCESCO CAPOTORTI, STUDY ON THE RIGHTS OF PERSONS BELONGING TO ETHNIC, RELIGIOUS AND LINGUISTIC MINORITIES, E/CN.4/Sub. 2/384/Rev.1 (1979). While this is an important study of the “right to culture” as a customary international law right, it is short-sighted in that in fails to review the earlier foundations of law as an aspect of culture.
(82) On October 12, 2001 (Columbus Day), I attended the 2001 Fall meeting of the Section of International Law and Practice of the American Bar Association to make a presentation on the rights of Indians in the United States and Mexico. I gave an overview of contemporary human rights under Derecho Indiano–Spanish Indian law. I sat next to Fernando Perez Noriega, a member of the Judiciary Committee of the Mexican Congress. He took a leadership role in recent amendments to the Constitution of Mexico on Indian rights, which have the Zapatistas up in arms (sorry about the pun). He declared that the Indians of Mexico only have rights as “minorities.” That is the same position Mexico took in the Plan of Iguala of 1821, where the government extinguished Indian rights under the pretext that they were now “citizens.” That is the “liberal” discourse of Utilitarian assimilation. See note 34.
(83) A November 8, 2001 Congressional Research Service (Library of Congress) “Issue Brief for Congress,” indicates that between February and May of 2000, over 500 people were killed in an area of northern Nigeria over a proposal to introduce Sharia. Several Nigerian states have introduced it, and there are conflicts despite assurances that Muslim law will not be applied to Christians. Theodros Dagne, Nigeria in Political Transition 2 (2001).
(84) For a taste of the Celtic values of honor, loyalty, hospitality, honesty, justice and courage, see Celtic Values (Wayback Machine archive). The translation of those values from Celtic and Irish shows strong parallels to Navajo thinking and Indian thinking in general.
(86) Modern common law lawyers do not understand the functions of codes. “Civil law codes provide the core of the law–general principles are systematically and exhaustively exposed in codes.” William Tetly, Mixed Jurisdictions: common law vs civil law (codified and uncodified) (Part I). “Common law statutes … complete the case law, which latter contains the core of the law expressed through specific rules applying to specific facts.” Id. “Civil law codes and statutes are concise (le style francais), while common law statutes are precise (le style anglais). Indeed, civil law statutes provide no definitions, and state principles in broad, general phrases” Id. It is interesting to observe codes become more technical over the centuries. The earlier codes were largely statements of broad values and principles to guide judges. See, e.g., selections from the 13th century code of Alfonso I of Spain, “el sabio” (the wise), Las Siete Partidas. (selections from the code). “[T]his is no law book like modern or even contemporary medieval codes: each title and law is an essay incorporating folk wisdom. Touching myriad aspects of ordinary society, a social and political encyclopedia in effect, a mirror of medieval daily life.” 1 LAS SIETE PARTIDAS xi (Samuel Parsons Scott trans. & Robert I. Burns, S.J. ed., 2001).
(87) Vincent Salafia supra note 2, The Birth of Irish Law–Affirmation of Irish Law.
(89) The Irish triads are rich, poetic, and thought-provoking, e.g. “Three manifestations of humanity: Affectionate bounty; loving manner; and praiseworthy knowledge.” A Collection of Triads (Dead Website). See also Trecheng Breth Fene–The Triads of Ireland,
Having read as much as I could readily find on Brehon law and reading it in light of my years of study of traditional Indian law, certain similarities stand out:
- They are both a form of pre-state law.
- They are or were based in an oral culture.
- The were or are known by specialists who were or are not authoritarian
- They are remembered and transmitted in poetic or chant form.
- They are popular law and do or did not require state institutions for enforcement.(90)
One of the most fundamental contemporary misunderstandings about law is the assumption that it is solely a product of the modern state and that the definition of “law” is rules that are promulgated by, and enforced by, the state. Brehon and traditional Indian law are examples of the fact that it was possible for indigenous societies to function well without the modern state machinery of police, courts and prisons. As D. A. Binchy (quoted by Fergus Kelly) put it, the roots of Brehon law were in a society that was “‘tribal, rural, hierarchial, and familiar (using the word in its oldest sense, to mean a society in which the family, not the individual, is the unit)–a complete contrast to the sanitary, urbanised, egalitarian and individualist society of our time.’”(91) While the word “tribal” is frequently misunderstood and misused in the United States and elsewhere,(92) it refers to groups of people who have common bonds and ties in language and culture, and relationships that are traced by blood or extended family and clan relations. While traditional Irish society had formal hierarchies that are largely absent from Indian societies, there were certain distinctions–while most Indian nations did not have “chiefs” (a European invention, as were the “caciques” imposed by the Spanish), there were people who were set apart by their leadership role, religious or spiritual status (including that of healers), or military leadership. One classification of the “typology” of legal institutions indicates that there are seven kinds of systems, with increasing stratification:
- Self- or kin-based redress;
- Advisor systems;
- Mediator systems;
- Elders’ and restricted councils;
- Paramount chieftainships; and
- State-level legal systems. (93)
Those classifications are difficult to apply to my impression of Brehon hierarchies and Indian societies. That is, a great deal of Brehon law was based upon self- and kin-based redress, and the Irish kings did not have legal decision-making authority–it was placed with the brehons.(94) There were some differences in social stratification in early Irish society, as compared with Navajos.
(90) I use both the present and past tenses to separate Brehon and Indian law because traditional Indian law is still largely oral, its specialists still transmit it in the original manner, and a great deal of it is still unwritten. Unlike the Irish experience, where churchmen and literate Brehons transcribed fenechas (the traditional law) from an oral culture, a great deal of Indian law was suppressed, little was written down, and its survival depends upon the extent to which a given Indian culture was relatively untouched because people were isolated. See, EDWARD H. SPICER, CYCLES OF CONQUEST: THE IMPACT OF SPAIN, MEXICO, AND THE UNITED STATES ON INDIANS OF THE SOUTHWEST, 1533-1960 (1962). Heeding Vincent Salafia’s caution about the influence of the Church vel non on the writing of the Brehon laws, supra note 2, I do note that there was likely some influence because churchmen were literate. See, e.g. Marilyn Gerriets, Theft, Penitentials, and the Compilation of the Early Irish Laws, 22 CELTICA 18 (1991). Traditional American Indian law is being reduced to writing now, and the identity of the people who write it will be important. They will have to stay in touch with the “keepers of the tribal encyclopedia” (as Marshall McLuhan described the ancient poets and today’s lawyers), who are the elders and medicine people. The Honorable Robert Yazzie, “Hozho Nahasdlii”–We are now in Good Relations: Navajo Restorative Justice, 9 ST. THOMAS L. REV. 117, 121 (1996).
(92) The problem with the word “tribal” in referring to the Indian nations of the United States is that they are not simply an aggregation of people who are connected by blood or clan ties–they are political entities with governmental power. For a definition of the term “tribe,” see, Ferguson & Whitehead, supra note 33, at 12 (there are two definitions–one is a general stage in socialcultural evolution where relationship systems integrate bands or villages into a larger polity, and the other is based upon contact with a “more complex society, particularly a state”).
(93) KATHERINE S. NEWMAN, LAW & ECONOMIC ORGANIZATION: A COMPARATIVE STUDY OF PREINDUSTRIAL SOCIETIES (1983).
(94) Peden supra note 2, at 82.
There were the free and the unfree,(95) and although slavery was known to Navajos,(96) being “unfree” was not a Navajo concept. As with the Irish, Navajo slaves would be released after a period of service or buy their freedom.(97) One’s social and economic status under Brehon law was a function of the amount of property owned, which was related to the ability to pay the honor price (dire or enclann) and serve as a surety.(98) That kind of rank differentiation existed to a certain extent in Navajo society as well.(99) Irish society had three grades of kings, and seven grades of nobles and commoners, with the grade or rank of a person determined about the amount of property owned and the number of clients that person had.(100) However, the hierarchy was not fixed, because the law said that “‘the free may sit in the seat of the unfree,’” “‘the unfree may sit in the seat of the free,’” and “‘Everyone may become free by his wealth and unfree by his lips.’”(101) One’s wealth, talent or skilled craftsmanship made free status possible, and “economic self-sufficiency was the hall-mark of free status.(102) ”Navajos did not have specific status ranks, but there were social ranks in the sense of war leaders (hashkeeji naat’aanii), peace leaders (hozhooji naat’aanii),(103) and economic ranks of ricos (“rich ones”– in Spanish) and pobres (“poor ones”). The rich ones were Navajos who had large livestock herds, so there was status by virtue of property. The poor ones had no cattle, and their raiding to acquire property was a source of a conflict in the Southwest for hundreds of years.(104) Medicine practitioners had by virtue of their reputation for spirituality. Women had special status, because relationships were traced through the mother’s line (matrilineal), and residence was with the wife (matrilocal).(105) The family home, the hogan,(106) was usually owned by the women. Another similarity between Navajo and Brehon thinking is that self-sufficiency is highly prized as a Navajo value.(107)
Most American Indian societies are still largely rural, and urbanization is a key issue for modern crime control. Today, most people in industrialized countries live in a “human zoo,” and urbanization breeds crime.(108) A recent study of gangs in the Navajo Nation directly links gang formation to the rise of more or less urban “agency towns,” where Navajos were driven off the land with the destruction of their traditional grazing economy and into cluster housing in semi-urban settlements where people do not deem themselves to be related to others in the community (while they were in rural settings).(109) The contemporary issue for the kind of law we are talking about is how we might create new relationships in urban settings so that people feel they are “related” to one another in terms of dealing with each other.
Contemporary western thinkers have a difficult time with the concept that the family, and not the individual, is the relevant “unit” of law. Many Indian societies conceive of the “family” as being composed of immediate relatives by blood and affinity, but also of individuals who are related by some kind of clan relation. It can be matrilineal, where extended relationships are traced ties through the mother; patrilineal, through the father; or through both.(110) Property and other rights are individual,(111) but certain rights were or are exercised as a group, as with communal use rights to land or other kinds of property.(112) It is commonplace to say that modern society is highly individualistic, and we insist upon civil and constitutional rights to protect the individual. They are necessary with the existence of the state–to protect individuals who are isolated from traditional family protection. Is it possible to have a high degree of individualism, but exercise it in light of the group’s rights as a group? Navajos have three ways of expressing that in maxims: The first is “it’s up to him.”(113) The second is, “What is good for me is good for everyone else, but what is good for everyone else is also good for me.”(114) More recently, Associate Justice Raymond D. Austin of the Navajo Nation Supreme Court expressed it as “freedom with responsibility.”(115) Individualism is highly-prized in many Indian societies, but within the context of the society. Thus, traditional Indian is based upon relationships.
It is interesting to watch the transition of Brehon law from values rooted in an oral culture to written principles and rules. A great deal of Indian law is still oral, although Indian nations are now engaged in a (recent) process of reducing traditional principles to written English statements. The way law is applied changes as it makes that kind of transition. That is, many of the Navajo statements of principles speak to what you “should” do, and not necessarily to what you must not do. As one Navajo puts it, there are the “yii-yah-s,” the “doda-s,” and the “hago-es.”(116) “Yii-yah” is Navajo for “yikes!” It means that which you must avoid because it is dangerous. “Doda” is Navajo for don’t–the things you shouldn’t do. “Hago” means “do this.” There are prohibitions– but most of them are phrased in terms of the things that will happen to you if you do a certain thing.(117) Ancient Ireland had gessa or taboos for their heroes, which were “either prohibitions or actions to be carried out.”(118) I have a sense from my limited review of Brehon law, and particularly as it is expressed in the triads and in poetry, that the binding nature of tradition in both oral cultures is what made those two legal systems work without police, courts, and prisons. That law works out of respect for the law, and those who know it, expressed as a strong tradition, and not out of fear of punishment.
The specialists who knew fenechas (the customs) were brehons, a class of people who studied the law and applied it. Indian law does not have that kind of specialist, but it does have people who know the values that are law. They are generally civil or war leaders, medicine people and elders.(119) There are many different kinds of medicine people or spiritual specialists and healers. Navajos have three kinds of specialists: medicine men, medicine women, and elders. “Medicine men” are healers who, as it is in western medicine, perform curing and healing techniques on a patient, as the object of the process. They can “cure,” as with dealing with a mechanical malfunction (e.g. a broken leg) or an invasion by alien organisms (as with a cold), but most of their work entails “healing,” which deals with the mind and feelings. They know values and wisdom in memorized chants, which (depending upon the diagnosed ailment) are performed in various ceremonies for a patient. The chants, in turn, are based upon the essential wisdom of the Navajo culture, known as the Hajine Bahane or “creation and journey narratives.” Medicine women, who are called “hand tremblers,” use intuitive methods to diagnose illness. They pray over a patient and use a trembling hand movement over the body to ascertain the cause of illness. The concept of “elder” is common to most Indian groups, and while it generally refers to an individual who is older, and thus wiser, it more specifically means an individual who, by reason of right-living and spiritual exercises, possesses wisdom. One colorful way to refer to elders is that they are the “keepers of the tribal encyclopedia,” or repositories of the wisdom of the culture.(120) In contrast, the wisdom and law-keepers of Brehon law were originally poets, and the evolved into specialists who ranked just below kings.(121) Whether such specialists are seen as medicine people or as poets, they know the traditions well and are resources for those who want to know how they should order their lives.(122)
(95) Id. at 86.
(96) See generally BERARD HAILE, PROPERTY CONCEPTS OF THE NAVAJO INDIANS (1968) (Navajo slaves were individuals from other peoples who were captured in warfare or purchased).
(98) Peden supra note 2, at 87.
(99) Wealth was not a formal part of social stratification–the wealthy did have some informal influence, which was balanced by gossip, jealousy, or accusations of witchcraft, and Navajos saw wealth as a family, and not an individual matter. KLYDE KLUCKHOHN & DOROTHEA LEIGHTON, THE NAVAHO 118-120, 247, 300 (1974). The Navajo maxim is this: “A man can’t get rich if he takes proper care of his family.” 1,911 BEST THINGS ANYBODY EVER SAID 307 (1988). I will never be rich, for that reason, but I am very well taken care of. There is a tradeoff in marital relationships–the man provides economic power to the marriage, and the woman contributes reproductive power–in a reciprocal relationship. James W. Zion, The Use of Navajo Custom in Dealing with Rape, 5 LAW & ANTHROPOLOGY 131, 156-157 (1991). The reader will notice that “Navajo” is spelled “Navaho” in later footnotes. That is the old spelling, and the official one is with a “j.”
(100) Peden supra note 2, at 86.
(102) Id. at 86.
(103) ROBERT W. YOUNG, A POLITICAL HISTORY OF THE NAVAJO TRIBE 23 (1978).
(104) See, LYNN R. BAILEY, BOSQUE REDONDO: THE NAVAJO INTERNMENT AT FORT SUMNER, NEW MEXICO, 1863-68 (1998). Most historians writing about Navajos are overly broad in describing Navajos as raiders, and they do not put raiding in its proper economic context. That deficit has been cured by this book, which describes the Navajo transhumant sheep economy well.
(105) James W. Zion & Elsie B. Zion, Hazho’ Sokee’–Stay Together Nicely: Domestic Violence Under Navajo Common Law, 25(2) ARIZONA S. L. J. 407, 412 (1993).
(106) It is usually pronounced “ho-gone” in Navajo English, but its correct pronunciation is “ho-wan.”
(107) Kluckhohn & Leighton supra note 94, at 299.
(108) DESMOND MORRIS, THE HUMAN ANIMAL: A PERSONAL VIEW OF THE HUMAN SPECIES 82-115 (1994).
(109) TROY ARMSTRONG, PHILMER BLUEHOUSE, ALFRED DENNISON, HARMON MASON, BARBARA MENDENHALL, DANIEL WALL, & JAMES W. ZION, FINDING AND KNOWING THE GANG NAYEE–FIELD-INITIATED GANG RESEARCH PROJECT: THE JUDICIAL BRANCH OF THE NAVAJO NATION (2001) (in publication by the Office of Justice Programs, United States Department of Justice).
(110) HAROLD E. DRIVER, INDIANS OF NORTH AMERICA 250-254 (1969)
(111) Bruce L. Benson, An Evolutionary Contractarian View of Primitive Law: The Institutions and Incentives Arising Under Customary American Indian Law, 5 REVIEW OF AUSTRIAN ECONOMICS 5 (1991). This article is interesting for three reasons: First, it is a good review of traditional Indian law in some societies from an economic viewpoint; second, it asks the important question of why, when property rights were paramount under traditional Indian law, they aren’t important in contemporary Indian law; and third, it is written by a Libertarian. It is curious that although traditional Indian law has been largely ignored for centuries, that the non-Indian group that would focus on it most is the Libertarians. Overall, they want to show that societies “without law” and authoritarian institutions worked well. Peden, supra note 2, went to great pains to show that property ownership was individual and not communitarian (“communist”), and a recent law journal article on Indian property ownership stresses the point as well. Kenneth H. Bobroff, Retelling Allotment: Indian Property Rights and the Myth of Common Ownership, 54(4) VANDERBILT L. REV. 1559 (2001). Socialism and communism have not fared well since the fall of the Soviet Union and the rise of a worldwide economy.
(112) Haile supra note 91, at 5-9.
(113)The Navajo phrase is T’aa biboholnii, “It is up to him or her to decide.” MAUREEN TRUDELLE SCHWARZ, NAVAJO LIFEWAYS: CONTEMPORARY ISSUES, ANCIENT KNOWLEDGE 172 (2001). See also Raymond D. Austin, ADR and the Navajo Peacemaker Court, 32(2) JUDGE’S JOURNAL 8 (1993) (Austin is a former Navajo justice); KLUCKHOHN & LEIGHTON supra note 94, at 309-311 (1974) (integrity of the individual). John Farella, who has done outstanding writing on Navajo culture, wrote a hilarious memoir where he said that the Franciscan missionaries who went to the Navajo Nation in the early part of the 20th century were so busy trying to become Navajos that they forgot to convert anyone. He had this conversation between a Navajo and a priest, which illustrates the point: “‘Should I become a Catholic, Father?’ ‘It’s up to you.’ ‘Is it better than the traditional religion?’ ‘It’s another way to know the same things, to answer the same questions.’” JOHN FARELLA, WIND IN A JAR 39 (1993).
(114) I restated the maxim, “‘what is good for the individual is good for everyone else, and what is good for everybody is good for the individual.’” MARTHA BLUE, INDIAN TRADER: THE LIFE AND TIMES OF J. L. HUBBELL 236 (2000) (quoting Gary Witherspoon).
(115) Austin, supra note 108.
(116) As taught by Philmer Bluehouse, the former Director of the Peacemaker Division of the Judicial Branch of the Navajo Nation, and now an associate of the Navajo Medicine Man’s Association. These are Navajo words, with the “-s” and “-es” indicating their use in the plural in English.
(117) We usually see these stated in terms of folk law “taboos.” “If you do ‘A,’ then ‘B’ will happen.” There are usually supernatural consequences. Geneva Stump, a Cree mentor, once explained that the Cree word for “law” is ki-ah-m,” and it means “there are consequences”– “For everything you do in life, good or bad, there are consequences.”
(118) PATRICK C. POWER, SEX AND MARRIAGE IN ANCIENT IRELAND 16 1997). See also, T. M. Charles-Edwards, Geis, Prophecy, Omen, and Oath, 23 CELTICA 38 (1999) (examinations of taboos and prohibitions for kings).
(119) I do an extensive review of the roles of medicine men, medicine women and elders in James W. Zion, Navajo Therapeutic Jurisprudence (in publication, TOURO L. REV. 2002).
(120) Yazzie supra note 85, at 121.
(121) Peden supra note 2, at 82.
(122) The conqueror notes the wisdom keepers. Irish and Navajos share the fact that they were targeted for persecution. Peden supra note2, at 82. The English got at brehons and poets by forcing them to have a guarantor. Padraig A. Breatnach, An Appeal for a Guarantor, 21 CELTICA 28 (1990). Likewise, the first laws made for Indians targeted medicine people by making it a crime to either see a medicine man or be a medicine man. Henry M. Teller–Courts of Indian Offenses and Thomas J. Morgan–Rules for Indian Courts, in AMERICANIZING THE AMERICAN INDIANS: WRITINGS BY THE “FRIENDS OF THE INDIAN” 1880-1900 295, 300 (Francis Paul Prucha, ed. 1978) (a December 1882 letter from the Secretary of the Interior complaining of medicine men, and a 1883 code for the “Courts of Indian Offenses” targeting traditional Indian practices, including those of medicine people).
Family law is the core of traditional law. The major elements addressed here will be the male-female relationship; marriage; divorce; the tripartite subjects of cuckoldry, adultery, and abduction; and women who are outside the law.(123)
Women had a high status in Brehon law.(124) The same was true of Navajo women. Overall, Irish women had limitations on their right to contract, although it appears that the restrictions were honored more in the breech than in the observance.(125) Navajo women’s equality seems to be based upon the same foundations–the role of women in societies at war, the fact that “one must come to terms with a woman” for a close relationship,(125) and the example of “strong women” in tradition.(127)
Navajos assigned functions by gender, and there were specific economic, household, and military duties in the division.(128) Although there were no “equal rights” as conceived in modern law,(129) Navajo women owned their own livestock and other property,(130) and on occasion, they were naat’aanii or civil leaders.(131)
There was a gessa or taboo, “prohibitions or positive actions to be carried out,” for the hero Cuchulainn that is a general Navajo taboo–“never to look on a naked woman.”(132) That is also a Navajo taboo, and the penalty is that if you look upon a naked woman, you will go blind.(133) Such taboos are common sense, and they have to do with personal dignity, and the individual privacy of women.
There was a distinction in Brehon law between violent rapes and sexual relations by deceit in the amount of the honor price to be paid the offended woman.(134) The same is true under Navajo common law.(135) Men are required to pay nalyeeh to offended women (in general) and to their wives for slights.(136)
Incest was feared by the Irish,(137) and the same is true of Navajos.(138) Navajos identify themselves in introductions by stating the clan they are “of” (i.e. the mother’s clan), the clan they are “born for” (the father’s clan), and their nollies (a nali is one’s paternal grandparents) clans.(139) Those introductions are made to establish relationships, and they are also used so that young men and women will know whether they are prohibited from having a sexual relationship or entering into marriage with the other. The are strong incest prohibitions against marrying into the same clan or a related clan.
Just as there is little on homosexuality in the literature on Brehon law,(140) and there is little literature on Navajo homosexuality. There is some on Navajo “men-women,” or nadle, but it is not clear whether a nadle was a hermaphrodite, a man who acted as a woman, or a homosexual.(141)
The “seven commandments” for Irish women are very close to Navajo maxims of behavior in general:
- Do Not steal
- Do Not satirise or abuse unjustly
- Do Not netray your own people
- Do Not spread false and malicious gossip
- Do Not sleep with every fellow who wishes you to do so
- Do Not draw a knife on anyone
- Do Not refuse food to those who ask and need your hospitality.(142)
Brehon law indicates that marriage is a strong value in Irish culture,(143) and the same is true in Navajo society.(144) Brehon and Navajo law share the custom of bride price.(145) It is a misunderstood custom, because although the Irish word has been interpreted to mean “buy,”(146) it is an important element of pastoral society. Just as a bride price would be paid by the husband when the woman was from another tuath, since Navajos were required to marry outside their clan, a bride price was paid to the woman’s clan. Marriage is an economic relationship, and in tribal societies, survival is based upon cooperation. Marriage is not a one-on-one intimate relationship based upon individual choice or attraction, but an economic relationship that affects one’s family and clan. Cattle and livestock are valuable in pastoral societies, and payments using them cement clan relationships for cooperation.(147)
The status of illegitimate children is the same in Brehon and Navajo law–“there is no such thing as an ‘illegitimate child.’”(148) Legitimacy and the history of socio-legal hangups about it are surely related to primogeniture and the inheritance of royal titles. They are destructive western concepts that make no sense in most indigenous societies.
The duties of man and wife are also similar. Brehon law duties speak to sexuality, reserving sex for the husband, and equal status.(149) The same is true of the Navajo man-wife relationship, and it should be one of k’e. It means “‘compassion,’ ‘cooperation,’ ‘friendliness,’ ‘unselfishness,’ ‘peacefulness,’ and all those positive virtues which constitute intense, diffuse, and enduring solidarity.’”(150) The obligation to confine sexual relations with one’s spouse is stated in terms of the husband “owning” the wife and the wife “owning” the husband.(151) Given that ownership, adultery is a property invasion offense.(152)
Navajos, as was true of early Irish society, could have more than one wife.(153) As it is with the concept of bride price, where there is a modern assumption about “buying” a woman, polygamy is usually seen as something that favors males and pampers them sexually. That is not necessarily the case. Polygamy can serve many purposes. As it was in ancient Ireland, “big men” could have more than one wife,(154) and a wealthy Navajo could have more than one wife.(155) However, polygamy can be a women’s institution, as with the Navajo practice of a man marrying sisters or marrying a woman and her daughter from a prior relationship. The family is largely a woman-controlled unit in Navajo society, so that sisters and a mother-daughter pair could share the same husband, have control of the house, and protect themselves from domestic violence.
There are certain taboos and customs related to child bearing in Brehon law,(156) and the same is true in Navajo society. There are elaborate warnings about what to avoid when pregnant and the consequences of certain actions as affecting the child.(157)
Brehon law has an elaborate system of “fosterage,” where children were placed outside the immediate family for rearing.(158) There was no formal system of fosterage for Navajos, although the practice of relatives raising a child was common, and it is still common today (given various social ills that disable parents from doing their parental duties).
Abortion was prohibited under Brehon law,(159) and while it is noted in Navajo life,(160) it is likely prohibited as well because of the great value of children. In some American Indian societies, children are seen as special gifts of the Creator, and an abuse of that gift through abortion or child abuse is prohibited.
Prostitution was apparently practiced, but disapproved, in early Irish society.(161) It is difficult to define the precise role of prostitution in traditional Navajo society. Unlike western societies, Navajos did not hangups about sex.
The People have only ‘object taboos’ as regards sex, none of the ‘aim taboos’ which are so marked a development of western culture. That is, Navahos do feel that sexual activity is improper or dangerous under particular circumstances or with certain persons. But they never regard sexual desires in themselves as ‘nasty’ or evil. In school or elsewhere, whites have tended to operate upon the premise that ‘any decent Navaho’ will feel guilty about a sexual act which takes place outside of marriage. This attitude simply bewilders Navahos and predisposes them to withdrawal of cooperation in all spheres. To them sex is natural, necessary and no more or no less concerned with morals than is eating.(162)
Despite that concept of sexual freedom, Navajos are very modest, and prostitution would be frowned upon as being an excess–one of the fundamental principles of Navajo life is to avoid excesses.(163) Prostitution, as something different from promiscuity, is practiced. One anthropologist, writing in the 1930s, observed that:
Prostitution, as with all races and as long as history has been recorded, occurs in Navajo social life. Observation brings the evidence that no particular stigma is placed on the Navajo Magdalenes, the Navajo having rather an indifferent outlook. In conversation in regards such matters, we find that it invaribly [sic] runs to jocularity. In some cases of wholesale operations, particularly around places where Navajo men and boys labor for wages, we find that the greater number of the girls have been to school, and the procedure and operation are copied after white man’s methods. Such places do not last long, for the news soon leaks out and the Law Enforcement Division of the Indian Service takes action.(164)
The Brehon provisions on cuckoldry, adultery and abduction are quite similar to Navajo principles. The Brehon rule mirrors Navajo thinking:
The dilemma of a man with regard to the paternity of a child is well and enigmatically expressed by some old Gaelic poet and it is quoted by the brehon laws: Saer bru beiris breith/do thabairt cli–‘the fertile womb is free to bear a body!’ No matter what rule or law may decree, it can happen that a woman may have a child for anyone who takes her fancy. Laws and decrees cannot rule her fertility.(165)
It is likely that cuckoldry had a different status in traditional Navajo society. That is, Navajo men lived with the wife’s family in her land area, and a Navajo husband had duties to serve his in-laws.(166) Given that it was a woman-controlled situation, nalyeeh would be payable to the woman whose husband cheated on her, but the principle is unclear when it happens the other way around.(167) Adultery and abduction were prohibited in Brehon law, with the amount of honor price to be paid for abduction varying on whether the abduction was forceful or consensual.(168) This is a good summing up of the Brehon principles:
In the foregoing short account of how matters such as cuckoldry, adultery and abduction fitted into ancient Irish society, the concern of the brehon laws was always to protect the woman and the child against the predations of men or, in the case of cuckoldry, to protect a husband against another man’s interest. The general objects of the laws in these matters as in everything else was to arrange things in dispute according to some principle which took full account of human propensity, recognize the accomplished fact, and use a form of arbitration and composition for the settlement of crimes and misdemeanors instead of jailing and punishing the wrong-doer physically. One must see the laws in operation as a method of treating each person as a member of a family or co-family group, for whom the heads of such a group was responsible. They acted together and met the representatives of the other side in a dispute. One feels that this may have been much better than treating each malefactor as an individual, who must fend for himself. For certain serious crimes a person could indeed be made an outcast–a deorad–one who is deprived of the protection of his kin. His lot was a bad one and, unless he could atone for his crimes, a hopeless one.(169)
That is as precise a statement about traditional Navajo family law as might be found in the Navajo literature! It sums up well Navajo concepts of the protection of women and children, “talking out” disputes (“arbitration and composition”), group rights, the responsibility of family-civil leaders, and the ultimate penalty of being an outcast.
Being an “outcast” relates to the final subject in this discussion of elements of family law. Are there “women who are outside the law”?(170) Navajo women who are outside the law do not generally fall within the same categories as Brehon law, but there are women (and men) who are outcasts because of their behavior. They are usually glonnies, which is a contraction of the Navajo word ‘adlaanii–drunk. When a Navajo becomes so dependent on alcohol that he or she fails to perform the duties expected of that person in the family and clan, other members will quietly withdraw from a glonnie and that person becomes an outcast.(171) You usually seem them in the “agency towns” or governmental administrative centers of the Navajo Nation, and they can often be found drinking behind a certain chain grocery store that is found in most of those towns. Many are outcast further and migrate to regional “border towns” that surround the Navajo Nation,(172) where they become street people. Among them are the “women outside the law,” who are horribly abused and who lead a pitiful life.
Brehon law dealt with separation and divorce on a “no fault” basis and one which assigned fault (with varying degrees of compensation), with the return of the bride price should the fault be that of the woman.(173) There is some division of Navajo thought on that. One line of thinking, which is frequently found in the literature, is that separation or divorce can be done for any reason, and the process is the simple matter of walking out. There are two Navajo expressions for it: The first is where the woman puts the man’s saddle outside the hogan door, so that when he returns to find that he has been rejected, he takes his saddle and leaves.(174) The other is the expression that has gone into American slang, “to split the blanket.” That refers to dividing a Navajo blanket equally. I do not know the position on the return of the bride price.(175)
The other line of thinking, expressed by retired Navajo Nation justices Homer Bluehouse and Raymond D. Austin,(176) is that divorce is not permitted under Navajo common law. They explain that marriages were arranged between clans, that the ceremony is specially blessed, and that marriage is a lifetime affair. You see traces of that in discussions of marriage in peacemaking–particularly involving situations of alcohol abuse and family violence. (177)
Given the usual Navajo living situation of the man living with his wife’s family, when there was a divorce, the man took only his personal property. Retired justice Homer Bluehouse once told the story of Chief Justice Murray Lincoln being asked to do a customary divorce for a couple. Jine (178) that he went to couple’s residence, where he joined in a meal for all the extended family members present. After the meal, the couple sat next to each other on two Navajo blankets. As an item of joint property was presented to them, they would talk about and agree who got it. If there was a dispute, the item was shown to the gathered relatives, who would discuss it. If it was a gift from a relative, it would be returned to that person. Otherwise, they would talk about who needed the item, and it could be given to someone in the group. At the conclusion, the man got onto his wagon, his dog joined him at his side, and they rode off into the sunset, never to be seen again. Traditionally, and as with Brehon law, the woman would usually take custody of the child. Child custody is hotly-contested in the Navajo Nation divorce courts today.
Many of the principles of Brehon and Irish family law are the same for the same reasons– the focus is upon protection of the family unit, women and children, and compensation is required for the formation of a marriage because of extended family and clan relationships. If there are any differences between Brehon law and Navajo common law, they are likely due to differences of topography and economy. That is, the Navajo Nation is a large, semi-arid expanse of land, while Ireland is watered. Both economies were pastoral, however, with Irish loving their cows and Navajos preferring sheep. Navajo society may be more woman-oriented, although it was an egalitarian society.
(123) Following the classification by PATRICK C. POWER, SEX AND MARRIAGE IN ANCIENT IRELAND (1976). The book on Navajos that essentially corresponds to Power is GARY WITHERSPOON, NAVAJO KINSHIP AND MARRIAGE (1975).
(124) Power supra note 113, at 13-18.
(125) Peden supra note 2, at 91.
(126) Power supra note 113, at 14.
(127) Power, Id., at 15. It would be interesting to compare the Navajo “strong woman” archetype, Changing Woman, with Cailleach Bheara and the cults of St. Brigid and St. Ann, because there are many likely parallels. There is insufficient time and space do that here. See, Liam Mac Mathuna, The Festival of Brigit the Holy Woman, 23 CELTICA 231 (1999).
(128) Kluckhohn & Leighton supra note 94, at 94-95.
(129) While the United States has not adopted the Equal Rights Amendment, which makes both sexes equal before the law, the Navajo Nation is the only Indian nation to adopt it (in the Navajo Nation Bill of Rights, 1 NNC [Navajo Nation Code] § 3). Most Navajos are not aware of that, and equality in the “it’s up to him [or her]” sense is not the same as equality before the law. Equality is a relationship status in stateless societies.
(130) The modern version of the hogan or log home belongs to the man or woman who supplied the funds for labor and material, and where the couple pays for it, “family solidarity and joint ownership are evident.” Haile supra note 91, at 11.
(131) MARY SHEPARDSON, NAVAJO WAYS IN GOVERNMENT: A STUDY IN POLITICAL PROCESS 48 (Memoir 96, American Anthropological Association, 65(3), Part 2, 1963). (“All positions should be open to the ‘good man’ or the ‘good woman,’ although customarily the public roles were played by men, older men who had attained wisdom.”) Today’s naat’aanii are called peacemakers, and it is interesting that it appears that a majority of them are women, and the most active are women. At present, nine of the Navajo Nation trial judges are women and six are men, and two of the three Navajo Nation Supreme Court justices are women. Thus, 60% of the Navajo Nation judiciary is women.
(132) Power supra note 113, at 16.
(133) See ERNIE BULOW, NAVAJO TABOOS 123 (1991) (“Don’t stare at anyone for a long time–you’ll go blind.”) I was surprised that Bulow stated it that way, because Navajos commonly say that if you stare at a naked woman, you’ll go blind. While taboos are often dismissed as “superstition,” they are a rich source of values.
(134) Power supra note 113, at 19-20.
(135) Richard Van Valkenburg, Navajo Common Law II: Navajo Law and Justice, 9(10) MUSEUM NOTES 26, at 28 (1937) (following the introduction of horses, the penalty for murder was “live stock,” “or the minimum of four horses for a man and five horses for a woman”).
(136) That is a custom in my household.
(137) Power supra note 113, at 21.
(138) Van Valkenburgh supra note 130, at 28-29; Witherspoon supra note 118, at 49-55.
(139) “Nollies” is another Navajo-English plural word, which is commonly used to refer to a…………. and the Role of Craftswomen, in AMERICAN INDIAN GRANDMOTHERS: TRADITIONS AND TRANSITIONS 53, 55 (Marjorie M. Schweitzer ed., 1999).
(140) Power supra note 113, at 22
(141) See, SABINE LANG, MEN AS WOMEN, WOMEN AS MEN: CHANGING GENDER IN NATIVE AMERICAN CULTURES (1998) and RICHARD C. TREXLER, SEX AND CONQUEST: GENDERED VIOLENCE, POLITICAL ORDER, AND THE EUROPEQN CONQUEST OF THE AMERICAS 82 (1995).
(142) Power supra note113, at 24. There are comparable statements in the traditional Navajo wedding ceremony, where the relatives of the bride and broom give them lectures on their duties. Zion & Zion supra note100, at 413-414 (citing LOUISE LAMPHERE, TO RUN AFTER THEM: CULTURAL AND SOCIAL BASES OF COOPERATION IN A NAVAJO COMMUNITY 71 (1977)).
(143) Power, Id. 25-43.
(144) Witherspoon supra note 118.
(145) Power supra note 113, at 27, 34-35; Haile supra note 91, at 9-10, 13-14.
(146) Power, Id. at 34; Haile, Id. at 14, says that the proper Navajo word for the marriage gift translates, “appreciative with it,” and not “she cost that much,” “that was her price,” or “that was paid.”
(147) When I was single in the early 1980s, I enquired about the “going rate” for the Navajo bride price and I was told that it was fifteen sheep or five cows. It is often also in horses, since they are considered to be very valuable.
(148) Power supra note 113, at 33. There is no discussion or index listing for “illegitimate child” in the standard Navajo works. This was not a concern traditionally, because children belonged to their family and clan.
(149) Id., at 35-36.
(151) Haile supra note 91, at 14.
(152) Id., at 14-15.
(153) Power supra note 113, at 30, 31; Seamas Connough MacGriogair & Iain MacAn Tsaoir, Polygamy and Polyamoury in Ancient Gaelic Culture, <<http//earth.vol.com/~iain/docs/ poly.html>> (visited on December 24, 2001).
(154) Power, Id. at 30.
(155) Zion & Zion supra note 100, at 408-411 (explaining the function of Navajo polygamy as protecting women from domestic violence in the family, and illustrating with the story of how the United States Army sent four troops of cavalry to the Navajo Nation in the “great Navajo uprising” of 1913, to pursue an elderly Navajo and his son–for the crime of the son marrying three sisters!).
(156) Power supra note 113, at 37-40.
(157) See, FLORA L. BAILEY, SOME SEX BELIEFS AND PRACTICES IN A NAVAHO COMMUNITY 28-47 (40(2) Papers of the Peabody Museum of American Archaeology and Ethnology).
(158) Power supra note 113, at 40-43.
(159) Id., at 38.
(160) Bailey supra note152, at 98. Most American Indian women I have spoken with disapprove of abortion, but it is practiced in some Indian societies.
(161) Power supra note 113, at 38.
(162) Kluckhohn & Leighton supra note 94, at 316. If you notice the approval of adultery in this statement, it is the old problem of there being statements of prohibition which are not followed in practice. The two are reconciled by the fact that sex is not “dirty” or “wrong” of itself, but adultery is frowned upon.
(163) Id. at 304. Several years ago, I served a committee of Navajo judges that examined possible revisions to the Navajo criminal code. When we got to prostitution, I was shocked to hear a woman Navajo judge laugh and say, “Let’s legalize it–we women do it all the time anyway.” Two other Navajo woman judges who are known for their modesty agreed. They were likely looking that the practice of women exchanging sexual favors for economic favors, which is one of the principles of Navajo gender relationships.
(164) Van Valkenburg supra note 130, at 32. A Franciscan monk once told me of a Lakota (Sioux) woman who was Navajo Nation police officer, and used her police car for such purposes.
(165) Power supra note113, at 45.
(166) The Navajo term for “in-law” is hadane (ha-DA-nay). I am often referred to as hadane by Navajos, who tease and imply that I owe them special duties. That is particularly the case for any Red House Clan member, and at Navajo gatherings where a game of having people from the employees to whom I have special obligations. When asked to introduce myself by clan relation, I often say, “I am a slave to the Red House Clan.”
(167) My wife practices divorce law in the Navajo Nation courts, and she finds that cuckoldry is fairly common.
(168) Power supra note 113, at 46-50. The Navajo principles are the same. Van Valkenburg supra note130, at 32-33.
(170) Id., 50-51.
(171) Schwarz supra note 108, at 152-180. Schwarz explains the concept of “social death” for
(172) The reader should know that the Navajo Nation is almost as large as Ireland. Yazzie supra note 85, at 118 n. 13 (“While the Republic of Ireland comprises 27,146 square miles, the Navajo reservation constitutes 25,000 square miles”). Several Indian nations in the United States are larger than several European countries, yet they have severe difficulties exercising
(173) Power supra note 113, at 53-56.
(174) FRANC JOHNSON NEWCOMB, NAVAHO NEIGHBORS 10-12 (1966). “Among the people who follow the old laws, the divorce procedure is very simple; the man merely states as he walks out of the hogan: “Tse-hah-maz (Stone Rolls Out.”) He takes with him all the goods that were his before the marriage. Any property accumulated during the union remains with his wife. Occasionally an older boy may go with his father, but generally all the children stay with the mother. When a man speaks of his separation, he says, “Do-nata-nah-keh-dah” (No back my tracks”). Richard Van Valkenburg, Navajo Common Law I: Notes on Political Organization, Property and Inheritance, 9(4) MUSEUM NOTES 20, at 25 (1936) (punctuation in the original).
(175) The Navajo Nation judicial system once had “access commissioners,” who were Navajos who assisted people without lawyers with filling in court forms. One day, in the process of developing divorce forms, one of the Navajo commissioners asked the Anglo lawyer who was drafting them what he was going to do about the form for the return of the horses. He asked her to explain–with wide eyes–and the woman and I laughed and said that she meant a provision for the return of the bride price. I have not heard of that, and bride price is still a Navajo practice. That is a controversial issue in South Africa, where anti-domestic violence advocates attack the bride price (lobola) because it must be returned, even when a woman is a victim of family violence. Old customs are sometimes difficult when both the people and the custom are separated from their original settings.
(176) In discussions with me.
(177) Modern Navajo peacemaking is close to traditional practice. I have reviewed notes of peacemaking sessions held in the Window Rock judicial district of the Navajo Nation and see that people will frequently negotiate divorce or reconciliation. On other occasions, however, the family agrees to a divorce, and the court immediately enters a decree without formal proceedings. Navajos joke about the fact that when many couples split up, they reunite. Anti-domestic violence advocates fume about peacemaking in domestic violence situations, because the Navajo cultural bias against divorce is strong. It is permitted, and it is common, but Navajo society does not necessarily endorse and promote it–as in general American society. There is a great deal of literature on Navajo Peacemaking, but see, e.g., James W. Zion, The Navajo Peacemaker Court: Deference to the Old and Accommodation to the New, 11(2) AM. INDIAN L. REV. 89 (1985) for an explanation of how it was revived.
(178) Jine is the Navajo term for hearsay, meaning “they say.” It can be used to denote mere gossip, but it is also used by a speaker to indicate that while he or she did not see or hear what is about to be related, they have sufficient confidence in the truth of the statement to repeat it.
The major property law issues are (1) group versus individual rights, (2) land ownership, (3) individual property rights, (4) probate, and (5) clientship. While there are some similarities between Brehon and Navajo law here, there are also significant differences.
Many indigenous peoples have been seen as having “communist” forms of group ownership of land, and that is a false assumption with Brehon law.(179) While there was private ownership of land,(180) one of the problems with Brehon law is determining whether “land ownership is the property of a family or kindred group.”(181) It is unclear whether it was a question of group ownership or whether certain members of the derb-fine (males descended from a common great-grandfather to the third generation) had to consent to a land transfer or use.(182) This issue should be approached from the standpoint of the economy and actual land use. Navajos lived in a large, arid expanse of land, consisting of mountains, plateaus, steppes, valleys, and deserts. They had a transhumant grazing economy, which means that they herded sheep (and horses), going to mountain or high areas in the warm months, and moving to valleys in the winter.(183) Groups of Navajos who lived in family groups of up to forty families called a “natural community”(184) would take their herds to customary areas so that the group or a “clan” was said to “own” the land.(185) Given the large expanse of the aboriginal Navajo Nation, customary grazing areas were more of a land use right than the concept of ownership. Despite that kind of family or group rights, which are similar to the speculation about Irish ownership notions, individual Navajos had their own property, consisting of livestock and personal property.(186) Group ownership or control made sense, because the natural community survived together as a unit, but Navajos were not “communist” and they respected personal property.
The Brehon law of probate does not seem to be clear, but land interests passed to males,(187) and there has been some uncertainty about Navajo probate practices as well.(188) Navajos believe that the soul remains on earth for four days after death, so there is a funeral feast, with an opportunity to discuss such things. There will be discussions of “rights,” but personal property passes in the basis of need.(189)
Another unique thing about the traditional Navajo law of probate is that there is an “oral will” whereby a person can designate who will get the property. These concepts have passed into contemporary Navajo Nation law, and they are hotly litigated, so the Navajo judges are constantly involved in a process of deciding the Navajo common law on point.(190)
Brehon law has rules for the validity of a contract, depending upon the capacity of the person who made the contract and its terms.(191) Many economic transactions in Irish law “took place under the guise of a contractual relationship known as clientship.”(192) “Free clientship” was a grant of livestock by a king of noble to a free man, with a payment of 1/3 of the value of the livestock as a form of rent for seven years.(193) There was also a “base” clientship where a free man would receive a grant of livestock or land from a person of higher rank in return for an annual in-kind rent (“food rent”) and services.(194) It was a “base” relationship because of the factor of owing labor services to a “lord” or creditor: “The Irish apparently considered that laboring for another man somehow impugned one’s honor because the ‘lord’ had to pay the base client upon the initiation of the contract the value of his honor price. In return the ‘lord’ was entitled to receive a percentage of the base client’s honor price and other compensation paid to him if he sustained an injury or violence resulting in a legal settlement.”(195) While it was not as highly structured, there were relationships among Navajos similar to clientship, as with rico Navajo livestock owners for whom pobre relatives would work. The nature and extent of the lending of livestock, or contracts for land use rights, are unclear.
Navajos are less tied to male land ownership than Irish, and the primary concern was land use rights rather than absolute ownership. Women had significant control of land and property, and probate was less rigidly structured because of the use of land in common by the natural community. While there was not a formal clientship contractual relation, as Navajo ricos accumulated large herds (particularly after the return from captivity at Bosque Redondo), they too had poor relatives who provided services in exchange for heads of sheep. As it is with all societies, when there were family or property law disputes, there were methods of dispute resolution.
(179) Peden supra note 2, at 88-89.
(180) Id. at 89.
(181) Id. at 90.
(183) Bailey supra note 99, at 10-14.
(184) W. W. Hill, Some Aspects of Navajo Political Structure, 13(2) PLATEAU 14 (1940).
(185) Haile supra note 91, at 5 (but a claim by a clan is “not taken too seriously”). That was the traditional law. Today, given the fact that the traditional Navajo grazing economy was largely destroyed by the United States, and there is too little land for too many people, property ownership is hotly disputed. Most of the Navajo Nation is “owned” by the United States for Navajos as a whole, and there is a great deal of conflict over grazing permits and where grazing can be done.
(186) Id., at Haile supra note 91, at 15-41. While there was shared use of land, Navajos had very definite notions of personal private property.
(187) Peden supra note 2, at 90.
(188) Mary Shepardson, Navajo Inheritance Patterns: Random or Regular? 5 ETHNOLOGY 87 (1966).
(189) Id., at 88-89. Shepardson says that the distribution was ad hoc, but here too, you see the “talking out” process, and discussions of comparative need are part of it. Traditional Navajo law has a great deal to do with the concept of distributive justice–based on individual needs and sharing.
(190) See, Russell Lawrence Barsh, Navajo Tribal Courts, Property and Probate Law, 1940-1972, 6 LAW & ANTHROPOLOGY 169 (1991).
(193) Id. at 87-88.
(194) Id. at 88.
(195) Id. Navajos appear to also dislike working for others, given Navajo equality and independence-freedom norms.
The major categories of dispute resolution are (1) the role of the brehon or naat’aanii, (2) the dispute resolution method, (3) honor price or nalyeeh, (4) sureties, and (5) some speculation about the true nature of Brehon and Navajo procedure.
A great deal more needs to be done to clearly define the role of brehons in deciding disputes and identify the development of dispute resolution procedures. There is a statement that “The brehons were more like arbitrators than judges, since the parties were required to agree in advance to abide by their judgments and there was no official enforcement of decisions.”(196) They functioned in a legal system where “law making was the special function of essentially private persons–a professional class of jurisconsults and arbitrators known as the brehons.”(197) D.A. Binchy, one of the masters of Brehon law, said that “The Irish jurists issue no commands; they simply formulate what according to them has been traditionally followed from time immemorial, though beyond doubt they sometimes used their privileged status to remould the traditions according to their own ideas.”(198) One of the dangers in working with traditional laws is that they can be misstated and later misinterpreted through the use of technical western legal jargon. It is probably accurate to call brehons jurisconsults, because they were “a person skilled in the science of law.”(199) However, what is meant by “arbitration”? The law dictionary definition is that it is “The submission for determination of disputed matter to private unofficial persons selected in manner provided by law or agreement.”(200) In contemporary times, we usually think of “arbitration” as a method of private adjudication where a dispute is submitted to an individual or a panel for a judgment. Army officers who encountered Navajos early on in the American-Navajo relationship recognized that Navajos had “arbitration,” but they did not say what that meant. Is the word “arbitrate” deceptive? Traditional Navajo civil leaders, naat’aanii, were like brehons in that they knew the law, and when there was a dispute, they used the Navajo procedure of “talking things out.” That is a process whereby a civil leader would moderate discussions of a problem and give advice, based upon traditional Navajo precedent–what the figures in Navajo creation scripture did. The parties would then reach a decision by consensus. A naat’aanii might suggest what the proper outcome of a dispute would be, but that was not an “order” because of the “it’s up to him” individuality value. Vincent Salafia explains the Brehon meaning of “judgment,” saying that “The Brehon … declared what the law stated, as applied to the facts brought before him, and it seems more an award founded, in each particular case, on a submission to arbitration.”(201)
The Brehon law literature I reviewed does not provide much detail about the actual procedure. It speaks of “lawyers,” which makes it appear to be adjudication, but were they “lawyers” in the modern sense or spokespersons–people who would “speak for” someone? The traditional Navajo procedure is to involve everyone who was connected with a given problem or who had an interest in it. The “talking out” procedure can be direct, as in a meeting moderated by a naat’aanii, or extended family negotiations. Vincent Craig, a Navajo who was the Chief Probation Officer for the Courts of the Navajo Nation, said that he was told that in the old days, when a young man and a young woman would have an encounter while the woman was herding sheep, and she subsequently became pregnant, a member of the woman’s family or clan would initiate discussions with the man’s clan to negotiate an appropriate outcome. (202)
Brehon and traditional Navajo law share the concept of honor price–dire or enclann in Irish,(203) and nalyeeh in Navajo. The amount of honor price under Brehon law depended on the injured person’s rank, gender, and the nature of the offense.(204) Navajos had a similar concept, and the amount of cattle or horses to be paid for killing a woman was greater than killing a man.(205) Both Brehon and Navajo honor prices are stated as “tables of penalties,” where a given offense, committed against a given person, required a fixed payment. Were those penalties precise, or were they only guidelines, subject to the negotiation of any needs created by the injury?(206) In Navajo thinking, the amount of nalyeeh to be paid is enough “so there’ll be no hard feeling.”(207) The word itself is an invitation to negotiate not only the amount to be paid, but the relationship among the injured, the person who did the injury, and their families and clans. Despite the fact that there were “usual” amounts of restitution,(208) is it likely that settlements were usually negotiated under both Brehon and Navajo law?
One of the essential elements of Brehon legal procedure, in a society without state institutions, was a surety system to ensure the payment of the honor price.(209) While Navajos did not have as elaborate a surety system, family and clan members acted as sureties to pay nalyeeh. They would pay it for their relative, and then look after that person to make certain that he or she would not offend again.(210)
Overall, Brehon procedures appear to be more complex than the Navajo procedures for the role of the civic leader, the dispute resolution method, honor price, and sureties. However, given the evolution and development of Brehon law, and the increasing complexity that crept in as the law got glossed later on, I have a sense that there is little difference between Navajo and Brehon law on the essentials. Both had stateless societies with systems of private law that depended upon personal interaction. Both societies had respected law professionals whose “word was law,” because of respect for their knowledge and wisdom–based upon intensive studies of basic traditions. Is it impossible to revive law without the state? Can we make the law more personal to involve people? I suggest that it is possible.
(196) Sinder, supra note 2, at 237.
(197) Peden supra note 2, at 83.
(199) BLACK’S LAW DICTIONARY 991 (rev. 4th ed., 1968).
(200) Id. at 134.
(202) See, Zion supra note 94 for a case study of an Arizona rape case where the victim’s family demanded the delivery of fifteen cows as compensation for rapes committed by three young Navajo men. That arrangement was negotiated in clan member discussions, but a state judge refused to specifically enforce it, because it was too strange to him.
(204) Peden supra note 2, at 86.
(205) Van Valkenburg supra note 130, at 28 (the honor price was “live stock,” or, at …….
(206) While brehons (as it is with Navajos) claimed that the law was immutable, it did change to fit changing times and circumstances. Sinder supra note 2, at 238 (quoting D.A. Binchy).
(207) JOHN LADD, THE STRUCTURE OF A MORAL CODE: A PHILOSOPHICAL ANALYSIS OF ETHICAL DISCOURSE APPLIED TO THE ETHICS OF THE NAVAHO INDIANS 287 (1957).
(208) A few years ago, a Colorado probation officer asked a Navajo woman victim of a sexual assault what she wanted as restitution, and she replied, “Six horses.” He called Vincent Craig for an explanation. Horses are a very valuable item of property traditionally–there is a music genre, “horse songs,” that sing their praises, and one does not point at a horse with a finger because it is a “powerful being”–they would not only be valuable property for restitution, but a powerful symbol in their delivery of the woman’s innocence.
(209) Peden supra note 2, at 86-87.
(210) The concept of sureties has been reintroduced into modern Navajo Nation law in domestic violence and criminal statutes that permit sureties in the modern sense, using the concept of “the traditional probation officer,” i.e. using family members to not only pay nalyeeh-restitution but to assure legal behavior.
Before I can discuss the implications of this review, it is important to relate why I would go to Ireland (during the winter) to talk about the connections between Brehon and Indian law. Clifford Geertz, an American anthropologist, once wrote about the difficult process of cross-cultural understandings, and he said that the technique to use when studying another culture is this: “The trick is to figure out what in the devil they think they are up to.”(211) That is an excellent principle, so for years, I’ve been trying to figure out what Indians (Navajos in particular) are up to; what my own culture is up to; and what I’m up to. What are we up to here, at King’s Inns in Dublin, in January?
It is likely that there are many motivations for an interest in Brehon law—some of the Brehon Law Project and symposium participants are antiquarians, archaeologists or linguists, others students of legal history, and other people have different interests—I suspect several participants are keen about legal reform. Some want to revive and use Brehon law in today’s Ireland. John O’Donoghue, T.D., the Minister for Justice, Equality and Law Reform gave a speech at a conference on restorative justice in 1999, and noted its roots in Celtic tradition and Brehon Law.(212) In other words, the practical revival of Brehon law as a criminal justice technique. That is much closer to the mark. Some people recognize that the values of Brehon law persist, as with a 1998 debate over foreign adoption legislation where Mr. Glynn said:
I strongly support the Bill. We have a historic tradition of adopting children and while modern law only dates back to the Adoption Act, 1952, our tradition of taking responsibility for abandoned or orphaned children or sharing in the upbringing of children, where the family resources are already fully stretched, goes back to the Red Branch Knights and the Fianna.(213)
Unfortunately, the Irish judiciary’s plan for the 21st century does not include Brehon law,(214) but one of the purposes of conferences such as this is to educate people to change policies. Traditional law often seems distant, complex, esoteric, and not very understandable. American judges are rejecting the application of traditional Indian law to nonmembers, Anglo or Indian, because–supposedly– it cannot be comprehended by outsiders. When traditional law is viewed as a system of very human values, it can be understood. I’m not fully Irish, I’ve never lived in Ireland, and I don’t speak Irish, yet if I can gain some small understanding of Brehon law then can’t non-Indians come to understand Indian law?
Several new justice movements have risen in the last ten years, including restorative justice, repairative justice, therapeutic jurisprudence, polycentric law, etc. While their members are talking about innovative reforms in state institutions (primarily the law and courts), they are also talking about one-on-one justice—a sort of private law. The same is happening on the political scene, as libertarians, anarcho-capitalists, anarchists and others along the spectrum from left to right or right to left, and center, are talking about privatizing justice(215) or getting judges, and even lawyers, out of the picture of conflict resolution. What in the devil are all of those folks up to?
I want to use an anthropological theory to suggest that they are all tired of the state and its justice bureaucracies for many reasons—humanism, individualism, freedom, participatory democracy, greed, privacy (“the right to be left alone”), recognition of the expense of adjudication, feelings that the system has “broken down” or that it is not effective, and many other reasons. Why are we fascinated with ancient law and have hopes of reviving it? Revivalism and nativism.(216) Revivalism can occur when a culture is under a great deal of pressure from another one, so people will look back to a mythical time when traditions were alive and when the culture under pressure thrived. We can see that in the extremes (often beautiful) of artistic portrayals of noble Irish or Indian warriors and beautiful Irish or Indian women—very romantic (and there’s nothing wrong with that, within limits). Revivalism is usually portrayed as an excessive group attempt to rebel or messianic religious movements, such as the Cargo Cult in the South Pacific or the Ghost Dance Religion among American Indians toward the close of the nineteenth century. Revivalism and nativism are likely to occur when cultures are under a lot of pressure. We live in the human zoo, where people are crammed together in urban areas; we’re working longer and harder for the money it takes to have the goodies our consumer economies invent, churn out, and we have to buy. We want something more—perhaps a family life, healthy communities, and protection from crime. We want “it” to work—”America,” “Ireland” or “the Navajo Nation.” Thus, if we keep in mind the need to avoid unrealistic romanticism in revivalism or excesses in nativism (including self-defeating nationalism—such as in the United States).
One shared element in the new movements is reinventing the future. Jim Dator, a “futurist” and court planner at the University of Hawaii, recognizes that we have a 19th century social system that is based on 17th century ideologies.(217) He poses the hypothetical of looking at new forms of governance in light of the settlement of space, but he actually invites us to think out how to reinvent our modes of government, law and dispute resolution in the here and now. What forms of government should space people consider? After asking us to recall the fact that urbanization and large populations are very recent in human history, and that “civilization” is only several thousand years old, Dator notes that:
For most of pre-history, most tribes and bands seem to have been organized fairly “democratically.” At least (except perhaps for some elders) there were no official leaders, or even permanent “chiefs.” The stereotypical first words of an extra-terrestrial alien, stepping off a spaceship, to the first human he encounters is: “Take me to your leader!” That request would have perplexed and confounded most humans for most of human history. Only we now, so thoroughly indoctrinated into the belief of the necessity of “leaders,” assume that it is natural and normal to be led rather than to share in leading.(218)
What kind of law would there be in space? Dator reviews primitive, continental and common law systems, and points out the contrast with “primitive” law systems that:
The “peace of the community” is more important than the “rights of the accused” or even of the rights of the victims.
The “truth” of what actually happened to cause a dispute is not important. Trying to decide who did what to whom and why will just prolong and worsen the dispute.
Revenge, punishment or even restitution may not be part of the process at all. What is desired is simply to prevent conflict from happening again with minimal damage to the peace of the community.
The entire community may take part in the conflict-resolution process–at the very least more than just the accused and accuser will participate.
There may be no formal judge–the entire community (or whoever takes part in the process) may also serve as the “judge.”
There will certainly be many rituals, and usually some rules of procedures which need to be followed, but often the process will be very flexible and situational.(219)
Dator summarizes the main elements of traditional American Indian and Brehon law well, and that indicates that perhaps we aren’t antiquarians or historians as we talk about the “primitive” law of Irish and Indians, but futurists!
Of the many movements that are studying options and alternatives to move us from the 19th to the 21st century, I tend to side with the anarchists. A few years ago, some delightful criminal justice professors invited me to speak to their organization in New Hampshire. I didn’t know until I arrived that many sported beards (making it look like a ZZ Top convention) and several said that they were anarchists. They were some of the most delightful people I had ever met. I must define the “A” word for my purposes. When my daughter, Olowan, began a public speaking class at the University of New Mexico, she brought home a general speaking guide, and it included a caution to avoid controversial subjects. It specifically mentioned avoiding talk about anarchism. The nice thing about rules is that you must have a sense of when to break them (for good purposes). To me, “anarchism” is a group of people who come together for the common good and benefit of each other as a group. Fraternal organizations are an example of people who come together for comradery, and many of them have programs for the particular benefit of members or the public. During the sixties, I wanted to visit Berkeley, California to see the student rebels. “Berzerkley” was a major attraction for my generation. My daughter Jeannette got there before me, and brought back a nice little pamphlet from a lefty bookstore as a souvenir. It was on Chilean anarchism, and it described organized self-help and mutual benefit societies in Chile.(220) That is what I mean by anarchism—not the stereotype of grinning, black-garbed, trench coat and floppy hat-wearing men, walking about on tip-toes and carrying a lit bomb,(221) but groups of people who unite for non-violent and beneficial reasons. Can we agree to be “anarchists” in that sense? Do we look to Brehon and Indian law for approaches to the process of devising ways to come together as communities to take care of our own problems without involving the meddling or irrelevant state? Yes, it does have its purposes, and for now, I am not going to give up police, my water supply, garbage collection, or the wonderful emergency medical technicians who periodically come when my elderly parents have problems– but I think about how I can do things for myself within the family, extended family, workplace, and other connections.
The hallmark of Brehon and Indian law is groups of neighbors. They are people who are related by blood or affinity, who trace their relationships in extended family ties, and who have a collective identity as “tribes.” Today, a new generation recognizes that form of collective relationship, and it is forming new kinds of tribes to forge identities and look after each other.(222) “Tribal” relationships are essential to understand Brehon and Indian law. Both have relationship systems where one can trace one’s obligations to—and from—the group. Both Brehon and Indian law recognize the importance of the individual (and the concept of freedom), and both do that by defining individual rights and responsibilities and defining them in within the context of the welfare of the group. The current debate about “group rights” in international human rights law, where some of the major players insist there is not (and should not be) any such right, is utter nonsense. Lawyers and bureaucrats who go to Geneva to resist the collective group rights of indigenous peoples are reinforcing centralized authoritarian power and they are not promoting human rights. We have dignity as individuals, but that dignity does not, and cannot, exist without our identity as a member of a group.(223) Brehon law and Indian law are about group identity and using relationships to solve problems.
I will now appropriate another anthropological-legal approach. Karl Llewellyn and E. Adamson Hoebel wrote one of the rare (since 1492) books on traditional Indian law as law.(224) It was the first book in English on Indian law for about 450 years after “discovery,” and the second book on the topic (in Spanish).(225) Llewellyn and Hoebel wrote about getting a “feel of and a feel for” Cheyenne law as a corpus of law.(226) That is what in the devil we are up to as well.
Finally, there is a worldwide movement taking a new look at the principles of democracy.(227) Increasingly, we realize that participatory democracy is possible, in policies of genuine inclusion in decision-making, and local control. Modern positivist law, developed under doctrines of parliamentary supremacy, is not inclusive–it is made by power elites–while traditional customary law is quite inclusive. We need to rethink the levels where decision-making, dispute resolution and relationships can be made, and how it is possible for people to deal with each other using shared values. Those values are very much alive for many American Indians, and the Irish are in a position to take a fresh look at Brehon law to see what values remain strong or can be adapted to the present day situation.
(211) Clifford Geertz, “From the Native’s Point of View”: On the Nature of Anthropological Understanding, in THE PLEASURES OF ANTHROPOLOGY 58, 60 (Morris Freilich ed., 1983).
(212) Address by John O’Donoghue, T.D., Minister of Justice, Equality and Law Reform at the Conference on Restorative Justice, Friday 23 April 1999. The minister referenced a conference presentation by Jim Consedine [a Catholic priest from New Zealand] who connected Brehon law and restorative justice. Jim Consedine, 1999 Conference–An Irish Way Forward
(213) 154(14) Diospoireachtai Parlaiminte–Parliamentary Debates, Seanad Eireann, Tuairisc Oifigiuil–Official Report 968 (Friday, 13 March 1998).
(214) The Hon. Mr. Justice Ronan Keane, Chief Justice, The Irish Courts System in the 21st Century: Planning for the Future, BAR REVIEW 321 (April 2001).
(215) See, Bruce L. Benson, Crime Control Through Private Enterprise, 2(3) THE INDEPENDENT REVIEW 341 (1998); Bruce L. Benson, Enforcement of Private Property Rights in Primitive Societies: Law without Government, 9(1) J. LIBERTARIAN STUDIES 1 (1989).
(216) “Nativism” and “revivalism” are part of a larger kind of social movement, a “revitalization movement,” or “a conscious, deliberate, organized effort on the part of some members of a society to create a more satisfying culture. In revivalism, the aim of the movement is to return to a former era of happiness, to restore a golden age, to revive a previous condition of social virtue. In nativism, the aim of the movement is to purge the society of unwanted aliens, of cultural elements of foreign origin, or of both.” Anthony F.C. Wallace, Nativism and Revivalism in 11 INTERNATIONAL ENCYCLOPEDIA OF THE SOCIAL SCIENCES 75 (1968). While nativism is usually seen as a negative, if not vicious, force, the idea of people wanting to return to their own “cultural elements” rather than imported ones can be healthy. In Navajo thinking, things should be done moderately, and something that is “evil” can be “good,” depending upon its effects and whether it is respectful of others.
(217) Jim Dator, Space Settlements and New Forms of Governance 1 (n.d.). The 17th century ideology for Ireland, in English policy, was invasion, conquest, and war and not the “liberal” ideas of government undergoing development at the time.
(218) Id. at 3 (footnotes omitted).
(220) L. BAMBONE, THE LIBERTARIAN MOVEMENT IN CHILE: MUTUALISM AND ANARCHO-SYNDICALISM FROM 1840 TO THE PRESENT (1996).
(221) See, e.g., Anarchist Groups of New York (web page with a stereotypical anarchist figure as wall paper) (visited on December 9, 2001).
(222) R.U. Sirius, The New Counterculture, TIME 88 (November 9, 1998). The author has a hilarious political web site at <<revolting.com Wayback Machine Link>>, called “The Revolution,” with a symbol that such is a registered mark. I think this is what the new generation thinks of the “Baby Boomers” (or at least what my daughter thinks): “What happened? Where have all the flowers gone? Whither the revolution? Is it all just fern bars and stock options, breast implants and cappuccino frappes from here till eternity? Well, it’s kind of like your parents (whom, thankfully, you did not kill, despite Jerry Rubin’s urgings) tried to tell you: if you weren’t so damned self-absorbed, you might learn something.” Does that hit close to home?
(223) In December 2001, I finished a report on Navajo youth gangs, and their motivation to join for friendship, protection, identity, and survival was obvious—isn’t that the basis for the notion of membership and identity—the very basis of the idea of “identity”?
(224) KARL N. LLEWELLYN & E. ADAMSON HOEBEL, THE CHEYENNE WAY (1941).
(225) The first was written in the 16th century. ALONSO DE ZORITA, LIFE & LABOR IN ANCIENT MEXICO: THE BRIEF AND SUMMARY RELATION OF THE LORDS OF NEW SPAIN (Benjamin Keen trans., 1971). De Zorita referred to the Aztecs in this work on Aztec government and law as “Lords,” because of a Spanish discourse recognizing them as such in the European notion.
(226) Llewellyn & Hoebel supra note 219, at 40.
(227) See, e.g. TERRENCE EDWARD PAUPP, ACHIEVING INCLUSIONARY GOVERNANCE: ADVANCING PEACE AND DEVELOPMENT IN FIRST AND THIRD WORLD NATIONS (2000).
The shared experiences, commonalities, parallels, and intersections of traditional American Indian and Brehon law are strong. What are some of the things they share (in either a past or present tense)?
- Both the Irish and American Indians had their rights taken away by a papal bull or a fictitious bull (although Indians have a bull that specifically acknowledges their rights).
- Both were indigenous and tribal peoples.
- Both were the subject of a British policy of extermination.
- Both had broken treaties.
- Both had reservations–although the Irish reservation in Connaught was never settled as such.
- Both were relocated, in either a specific relocation policy or through economic forces (e.g. the Great Famine and American western expansion policies).
- Both were subjected to forms of slavery and relegated to low-paying jobs as cheap labor.
- Both were assumed to have an inferior culture, and were labeled as “infidels, savages, heathens, etc.”
- Both were assumed to have “no law.”
- Both brehons and medicine men were singled out for persecution because they were the keepers of traditional wisdom.
- Both were persecuted for their religion and targeted for missionary activity.
- Both were subjected to assimilation policies.
- Both attempt to retain their original languages
- Both were badly stereotyped in popular John Ford–John Wayne movies, and aside from the stereotype that they were ignorant and uncivilized, both were depicted as drunks who could not resist the lure of alcohol
- The actual legal principles or values in both bodies of law are similar–although there are differences due to geography, topography, and economy.(228)
There are some differences in actual substantive principles or procedures, but we can say that both traditional Indian law and Brehon law are egalitarian as a form of pre-state law. We need to go beyond literal readings (or oral understandings) of the two bodies of law and look for the values that are in them. They generally embody the value of participatory democracy, where people work together to solve their own problems, and do not leave that process to the state.
What about the synergetic or serendipitous discoveries to be made from this process? The experience I had from doing this review was the discovery of new ways to look at traditional American Indian law from examining Brehon law. There is something synergetic about that, because examining the two bodies of law creates a new understanding of both. This has been a truly serendipitous experience for me, because I delighted in learning something new while doing this comparison.
How can these two bodies of law “save” civilization? By showing us the ways we can use values and community institutions to solve problems and learn how to live better. Traditions give us strength and warmth as distinct peoples, and even I look to Irish roots and consider myself to be Irish every Saint Patrick’s Day. We can think of ourselves as being members of distinct groups and yet still live in a single society which is pluralistic and accepting of many ethnicities, religions, languages, and cultures. How? There is a Lakota word, tiospaye, which means, “Ti (where we live) ospaye (apart but not separated completely).”(229) Where we live, we are apart in the sense of nationalities, identities, occupations, and communities, but we are not separated completely. Tiospaye is a kinship term, and we can look to it as a kinship process of forming our own “tribes” and living in accordance with our traditional values, many of which are egalitarian and are based on participatory democracy. That is why traditional American Indian law and Irish Brehon law, the “law of infidels,” can save civilization.
(228) When I talked about these similarities with Dr. Rosemary Blanchard of Albuquerque, New Mexico (who is very Irish), she added: “The English are hopeless but never desperate, while the Irish are desperate but never hopeless.”
(229) THE SIXTH GRANDFATHER: BLACK ELK’S TEACHINGS GIVEN TO JOHN G. NEIHARDT 321 (Raymond J. DeMallie, ed. 1984).