Since Time Immemorial

Front matter

Since [ime Immemorial

Native Custom e Law in Colonial Mexico

Since ‘Time Immemorial

Part I. Legal and Intellectual Foundations Twelfth through Seventeenth Centuries 23 1 Custom, Law, and Empire in the Mediterranean-Atlantic World

45 2 Translating Custom in Castile, Central Mexico, and Oaxaca

Part IL. Good and Bad Customs in the Native Past and Present Sixteenth through Seventeenth Centuries

109 4 The Old Law, Polygyny, and the Customs of the Ancestors

Part III. Custom in Oaxaca's Courts of First Instance Seventeenth through Eighteenth Centuries

5 6

Custom, Possession, and Jurisdiction in the Boundary Lands Custom as Social Contract: Native Self Governance and Labor

Prescriptive Custom: Written Labor Agreements in Native and Spanish Jurisdictions

Epilogue Notes Bibliography Index

A gallery appears after page 107.

Acknowledgments

This book has been a collective enterprise, a product of conversation, friendship, community, and long years of work. I will begin by thanking the staff of the archives and libraries that I have visited and consulted since I began collecting material on custom more than twenty years ago: Archivo Histórico Judicial de Oaxaca; Archivo Histórico Municipal de Oaxaca; Archivo General del Estado de Oaxaca; Archivo Histórico de la Arquidiócesis de Antequera Oaxaca; Archivo Histórico de Notarías del Estado de Oaxaca; Biblioteca Francisco de Burgoa; Biblioteca de Investigación Juan de Córdova; Archivo General de la Nación; Archivo General de las Indias; Library of Congress Indian Languages Collection; Special Collections of the Latin American Library at Tulane University; the John Carter Brown Library; and the Rosenbach Museum and Library. I owe special gratitude to Israel Garrido Esquivel, director of the Archivo Histórico Judicial de Oaxaca, where I have spent the bulk of my time. He has been an immensely helpful and kind interlocutor.

Linda Arnold provided digitized resources and sage advice. Selene García Jiménez lent her excellent archival skills, knowledge, and historical insights. At Emory, I have been blessed with wonderful research assistants who have helped me with transcriptions, data management, and bibliographies: Jon Coulis, Audrey Henderson, Marissa Nichols, Alexander Cors, Rachel Shapiro, María de los Angeles Picone, and Juan Viacava. Special thanks to Alexander Cors and Randy Mesa who produced the maps for the book; and

Emory’s Center for Digital Studies for providing resources and support. Kelly Duquette helped with editing and formatting at a critical juncture.

Numerous fellowships and institutions made this work possible, including a National Endowment for the Humanities Summer Stipend, American Council of Learned Societies Faculty Fellowship, Emory University Research Committee Award, Mellon New Directions Fellowship, and Senior Fellowship at Emory’s Fox Center for Humanistic Inquiry. I also benefited from the engagement of colleagues at the following institutions and symposia: Tepaske Seminar for Colonial Latin American History; Tepoztlán Institute; Symposium on Comparative Early Modern Legal History at the Newberry Library, “Meanings of Justice in New World Empires”; the seminario permanente at the Max Planck Institute for Legal History; “Reframing Nineteenth Century Latin America” at Yale University; the Omohundro Institute of Early American History and Culture colloquium and the William and Mary Legal History Seminar; the University of Wisconsin Department of Spanish and Portuguese Studies; “Renaissance Displacements” at Princeton University; “Tasks of the Translator” at Saint Louis University’s Center for Intercultural Studies; “Indigenous (Latin) America” at the Center of Latin American and Caribbean Studies (CLACS) and Department of American Indian Studies at the University of Illinois at Urbana-Champaign; “Agents Médiateurs Dans L'Empire Hispanique” at the Institut D'Études Européenes et Globales; Université du Maine; the University of Chicago Latin American History Workshop; and the Early Modern World Seminar at the Institute of Historical Research, School of Advanced Study, University College of London.

In Oaxaca, many people provided support, inspiration, and ideas over the years. I am grateful for the friendship of Martina Schrader-Kniffki and Johannes Kniffki, who have connected me with friends and colleagues and taught me much about Oaxaca. My collaborative work with Martina on colonial Zapotec-language sources and theories of translation has deeply informed this book. I also thank Maria de los Angeles Romero Frizzi, Daniela Traffano, Carlos Sanchez Silva, Francisco José Ruiz Cervantes, Michael Swanton, Sebastián van Doesburg, Flaviano Pérez Hernández, Genaro Hernández, Juana Vásquez, Kiado Cruz, Rayo Cruz, and Omar Aguilar Sánchez for illuminating conversations and guidance. Other scholars based in Mexico have enriched my work through their supportive and critical engagement: Luis Alberto Arrioja Diaz Viruell, Marta Martin Gabaldén, Antonio Escobar Ohmstede, Victor Gayol, Edgar Mendoza, Michel Oudijk, Ethelia Ruiz Medrano, and Margarita Menegus Bornemann. In the United States, Europe, and beyond, I have benefited from the intellectual and personal

ACKNOWLEDGMENTS generosity of many colleagues who have pushed my thinking and answered questions big and small: Renzo Honores, Alcira Duefias, Michelle McKinley, Camilla Townsend, Ménica Diaz, Pete Sigal, Kevin Terraciano, Matthew Restall, Stephanie Wood, Susan Kellogg, Robert Haskett, John Schwaller, Jerome Offner, Lisa Sousa, Owen Jones, Caterina Pizzigoni, Richard Conway, Karen Graubart, Jane Mangan, Frank Salomon, Caroline Cunill, Claire Gilbert, Frances Ramos, Martin Nesvig, Jorge Cañizares-Esguerra, Christoph Rosenmiiller, Rachel O’ Toole, Marcela Echeverri Muñoz, Mark Lentz, Nora Jaffary, Christina Bueno, Alexander Dawson, Eddie Wright-Rios, Sonya Lipsett-Rivera, Mark Overmyer-Velázquez, Alex Hidalgo, Brian Owensby, Richard Ross, Thomas Duve, Lauren Benton, Anténio Manuel Hespanha, Wim Decock, Otto Danwerth, Margarita Zamora, Santa Arias, Alejandra Irigoin, and Santiago Muñoz Arbeláez. I owe special thanks to Gabriela Ramos, Laura Matthew, Joan Bristol, and Paja Faudree for long years of friendship and camaraderie, and who continue to help me grow as a scholar of colonial Latin America and Oaxaca.

Javier Villa-Flores, Bianca Premo, Karen Stolley, Nancy Farriss, Joanne Rappaport, Lorrin Thomas, and Miranda Johnson read and commented on part or all of the manuscript. I thank each of them for their astute critiques, generosity, and friendship. Arun Jones and Clifton Crais offered insightful feedback on an early version of chapter 4, Michelle Armstrong-Partida on an early version of chapter 1, and José Carlos de la Puente Luna, Tamar Herzog, Cynthia Radding, Justyna Olko, Adriana Chira, Maria Montalvo, Sharon Strocchia, and Pamela Scully, on an early version of chapter 5. Roberto Gonzalez and Miranda Johnson provided helpful suggestions on an early version of the epilogue. Thank you especially to Bianca Premo for joyful and generative conversations that have sharpened my thinking, and most importantly, for her friendship and counsel through this process. I could not have done this without her. Nancy Farriss’s influence is evident throughout the book, and her impeccable scholarship continues to inspire and motivate me. I thank her for many years of support and memorable visits and conversations in Oaxaca and Philadelphia. And of course, this book would not have been possible without the patience, guidance, and cheerleading of Gisela Fosado, senior editor at Duke University Press. Thank you also to Alejandra Mejia, assistant editor; Ihsan Taylor, project editor; Aimee Harrison for the cover design; and the two anonymous reviewers, who provided discerning and helpful commentary on the manuscript.

At Emory, I am lucky to have superb and supportive Latin Americanist colleagues: Javier Villa-Flores, Tom Rogers, Adriana Chira, Jeffrey Lesser,

ACKNOWLEDGMENTS xi xii

Susan Socolow, Pablo Palomino, Xóchtil Marsilli-Vargas, Karen Stolley, Monica García-Blizzard, María Carrión, Hernán Feldman, and Phil MacLeod. Adriana Chira has spent hours talking with me about custom, encouraging me to think broadly and comparatively across the Spanish Empire. Tom Rogers helped me survive the pandemic through our daily constitutionals around the Emory campus. Kristin Mann has pushed my work forward and served as a valued mentor. Astrid Eckert has supported me with letters for fellowships and more. Walter Melion and Keith Anthony, who run Emory’s Fox Center, and my colleagues during my senior fellowship— Falguni Sheth, Miriam Udell, Michael Peletz, and Corinna Zeltsman—nourished the book at a critical moment. Gyan Pandey and David Nugent invited me to present at Emory’s Colonial and Postcolonial Studies Seminar, and Arun Jones, at the seminar that he convened at Emory, “Can the Native Christian Speak?” Joe Crespino and Sharon Strocchia, my chair and interim chair, have encouraged and supported me in these final stages of research and writing. Department of History staff over the years—Kelly Yates, Becky Herring, Katie Wilson, and Allison Rollins—provided much logistical and moral support. I thank other colleagues in the department and across Emory University for their friendship and moral support, including Deboleena Roy, Sean Meighoo, Lauren Klein, Susan Gagliardi, Mariana Candido, Tehila Sasson, Malinda Lowery, Ellie Schainker, Dawn Peterson (currently an independent scholar), Jamie Melton, Brian Vick, Matt Payne, Tonio Andrade, Daniel LaChance, Don Tuten, Robert Goddard, and Carla Freeman. Julia Gaffield, Lia Bascomb, and other friends and colleagues of the Greater Atlanta Latin American and Caribbean Studies Initiative (G ALACSI) commented on many fragments of this manuscript.

My family— Aiden, Marianna, and Maeve Downey—are the wellspring from which everything else flows. I thank them for their love and companionship, and the reminder to live in the present. My parents and sisters, George, Zoena, Grace, and Daphne Yannakakis; my parents-in-law, Mary Gold and Robert Gold (who passed away in November 2021); my brothers and sister-in-law, nieces, nephews, cousins, uncles, aunts, and friends underscore the importance of the past and where we come from while pointing to the excitement and promise of the future.

ACKNOWLEDGMENTS

A Note on Orthography

Historically, and in the present, there are multiple conventions for writing in the many Indigenous languages of Mexico. When I reproduce Indigenous-language words and passages from historical documents, I maintain the original spelling. In the case of Nahuatl place-names, I do not use accents (i.e., Tenochtitlan and Yanhuitlan). For the sake of consistency, I maintain this practice throughout the book, even for the later colonial period when orthographic conventions changed and accents were frequently used in Nahuatl place-names, as they are today. The only exception is when I discuss the case of present-day Teotitlan del Valle, in which case I follow the modern orthography. For the case of Nudzahui (Mixtec) and Ayuuk (Mixe) place-names, I reproduce the original spellings in the documents. For the case of Tíchazàa (Zapotec), for which there are regional variants and a recent renaissance in Zapotec writing has produced new orthographies, I follow the recent conventions (i.e., San Juan Tabaá and San Juan Yaeé).

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Map 3 (above) Selected urban administrative centers and ethnic groups of Oaxaca. Map produced by Alexander Cors and Randy Mesa.

Map 4 (opposite) Selected Indigenous towns of the Teposcolula district of Oaxaca. Map produced by Alexander Cors and Randy Mesa.

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Map 5 Selected Indigenous towns of the Villa Alta district of Oaxaca.

Map produced by Alexander Cors and Randy Mesa.

BUILDING FENCES STRONG ENOUGH to restrain cattle and oxen from trampling communal cropland is hard work. Until recently in Teotitlan del Valle, an Indigenous Zapotec town in the southern Mexican state of Oaxaca, the men of the community built and repaired the fences together as part of a customary practice of mutual aid and reciprocal labor." Teotitlán del Valle sits at the gateway between one of Oaxaca’s seven central valleys and the formidable Sierra Juárez to the north. Some of the town’s communal lands are dispersed in the mountains above the village center. Until the 1940s when most residents were full-time farmers, it was worth the steep climb to access a small communal plot and the trouble and sweat to patch a breached fence. The labor exchange for corral construction, and for other agricultural needs like planting, weeding, and harvesting, allowed the men in the community to earn their subsistence and circumvent the exploitative practice of debt peonage."

According to historical documentation, during the eighteenth century in San Juan Tabaá, a Zapotec town deep in the mountains above Teotitlán del Valle, the commoners of the town built fences around communal lands in order to keep oxen and mules of the well-to-do members of the community from trampling the crops that the commoners farmed. Although the commoners felt the custom was unjust since the livestock was not theirs, the livestock owners countered that the arrangement was reciprocal and part of the mutual bonds of obligation that held the community together. They pointed out that they allowed the town to use their draft animals to carry crops to market to earn currency to support the fiestas that punctuated the Christian ritual calendar and transport Spanish administrators when they visited the town on official business. Furthermore, they argued, the practice was just because it was ancient custom. Unable to resolve the dispute through the purview of village justice, the opposing parties brought their case to a Spanish colonial court for resolution.’

These examples of community norms of collective labor separated by more than two hundred years reveal distinct modes of Native custom in Mexican history: one that produced horizontal bonds of reciprocity and another that upheld social hierarchy. Broadly construed, custom refers to social practice that over time takes on the normative power of law within a territorially based community. In historical contexts across the globe, custom was at times equivalent to law; in others, a source of law; and in others, an alternative legal framework." In the example from twentieth-century Teotitlán del Valle, custom regulated labor for collective benefit. Despite the onerous nature of the work, the community’s peasant farmers considered the labor exchange to be worthwhile because it allowed them to expand production into marginal lands and insulate themselves from exploitation by wealthy landowners. In eighteenth-century San Juan Tabaá, the custom of building fences to protect communal lands reinforced divisions of wealth and status within the community, serving the interests of elites at the expense of commoners. When the commoners went to court to challenge the custom, they did so on moral grounds, claiming that it did not serve equity or the common good, two fundamental principles of colonial justice. The historical, social, and economic circumstances in these cases—defined by whose interests the labor exchange served— applied sharp divergences in meaning to what on the surface appears to be a similar custom across time. In both cases, however, custom’s power as a communal norm and a mode of organizing labor was underwritten by the moral force of its claim to antiquity and reciprocity. The capacity of custom to produce social cohesion was in constant tension with the community’s internal hierarchies and the broader economic and political systems in which the community participated. As a result, custom—in dynamic relationship with history—was subject to change and contestation.

Custom, a category of European law with origins in medieval Roman law, has not always been understood as historical, dynamic, and changing. In language evocative of timelessness and primordiality, a well-known historian of medieval Europe characterizes custom as a nexus of blood, land, and time, the coagulation of enduring communal values, and a primitive unwritten law.’

The European idea of custom as the expression of an authentic, autochthonous popular will can be traced to the rise of nationalism in the nineteenth century and a move among elite functionaries to nationalize law according to a mythic national character. In this romantic guise, custom predates law on an evolutionary continuum in which the latter represents the apex of a process of legal modernization. Critics argue that this formulation of custom persists and reinforces a problematic association with a timeless primordiality while reproducing hierarchies between local and state-centered norms.5 Woven into such binaries are assumptions regarding custom’s irrationality versus law’s basis in practical reason.’ According to these logics, peasant communities are locked in time, fettered to tradition, and governed by norms of popular justice. As such, they are objects to be modernized and brought into line with written, codified, state-centered law.

In the context of European empire, the custom—law opposition bolstered and generated social inequalities through the production of hierarchies of difference evidenced by categories like "native? National and imperial elites have justified and consolidated violent conquest and political domination from the era ofthe Roman Empire to the present moment by casting the laws and norms of conquered peoples as custom, and subordinating their customs to imperial or state-centered law. The earliest generations of European and North American social scientists supported the logic of empire by characterizing the social conventions of "primitive" and "simple" societies as customs, and those of “complex” urban ones as law. Legal anthropologists have critiqued the stark opposition between law and custom by arguing that all peoples living under nation-state or imperial regimes must contend with both legal and customary norms, and that the alleged boundary between them has always been much more porous than conventional wisdom has suggested." Despite this, the dichotomy between custom and law—a vestige of the romantic and primordial notion of custom — persists in the popular and scholarly imagination. Until recently, this was especially true in Latin America where anthropologists and social scientists characterized Indigenous customary law as an essential aspect of ethnic and communal identity, fundamentally opposed to state-centered positive law.”

Historians and anthropologists have been whittling away at these deeply ingrained assumptions for the last few decades, pointing to how peasant communities in diverse settings across time forged a dynamically plural legal culture through a synthesis of custom and law." Scholars of medieval and early modern Europe, where studies of custom are densely concentrated, have revised earlier romantic formulations, demonstrating that far from being an oral tradition locked in time, custom served as a terrain for the negotiation of social norms, was often written down, and could become law or indistinguishable from it." On a parallel track, scholars have disentangled the presumed linkage between custom and autochthonous Native practice in colonial and postcolonial societies. Africanist scholarship has yielded seminal work on custom as a tool of European empire, contending that rather than representing Indigenous norms based in antiquity, customary law was often an invention of Native elites, colonial authorities, and anthropologists who used it to justify indirect rule and social control.” For the case of Latin America, constitutional reforms across the region during the 1990s prompted a wave of research on legal pluralism that reassessed earlier positions, pointing to how law and Native custom have always influenced one other, while shaping and being shaped by the same historical processes.”

Taken together, recent scholarship has overturned the custom-law opposition and custom’s identification with a purported peasant and Indigenous primordiality, characterizing it instead as a multifaceted legal, political, and social strategy. Depending on the historical context, it served as a tool of domination, claim regarding the allocation of privileges and obligations, and resource for local justice. It is important to note, however, that one axiom holds true across custom’s many guises: historical actors across time and space have recognized that associating custom with antiquity and community lends it considerable moral force.

Indigenous Custom and Law in Pre-Hispanic Mesoamerica and Colonial Latin America

This book is about the invention, translation, and deployment of Native custom asa legal category and imperial strategy in colonial Mexico. Custom represented the primary framework through which Mexico’s and more broadly Latin America’s Native communities governed themselves and interfaced with authorities outside the community from the first decades following the Spanish conquest until independence from Spain. The Spanish Crown recognized the right of Native authorities to rule their communities according to their laws and customs provided that they did not contradict Christianity or Spanish law. Over three hundred years, Native communities synthesized Indigenous and Spanish norms regarding self-governance, justice, landholding, labor, sexuality, morality, and ritual life to produce the realm of colonial Indigenous custom. Through analysis of laws and legislation, missionary sources, Inquisition records, Native pictorial histories, royal surveys, and Spanish- and Native-language court and notarial records, I show how the idea of custom was given local meaning, how it became part of the fabric of Native communal life and a potent claim in Spanish courts, and how its purview changed and narrowed over time. In the hands of Native litigants, claims to custom, which on the surface aimed to conserve the past, ultimately provided a means with which to contend with rapid change in the present and the production of new rights for the future.

Spanish missionary priests and conquistadors destroyed the pre-Hispanic pictographic manuscripts that recorded the laws, legal institutions, and judicial proceedings of the Aztec city-states (altepeme, pl.; altepetl, sing.) of central Mexico during their violent campaign against Native religious authority, which as in the case of Europe was inextricably linked to political and legal authority. Ironically, the same agents of destruction who burned Native libraries, archives, and scriptoria later sought to recover Indigenous knowledge for the purposes of more effective evangelization. Friars Toribio de Benavente (Motolonía), Juan de Torquemada, Alonso de Zorita, Diego Durán, and Bernardino de Sahagún commented extensively on pre-Hispanic law and custom based on ethnographic observations and their discussions with Indigenous intellectuals." So too did the descendants of Indigenous rulers, some of whom were the products of unions between Indigenous noblewomen and Spanish conquistadors, such as Fernando Alva de Ixtlilxochitl and Juan Bautista Pomar.” The mestizo chroniclers had their own axes to grind, including the vindication of the actions of their forebears before and after the Spanish wars of conquest. Indigenous painter-scribes (Zlacuiloque) of the colonial period also recorded pre-Hispanic norms regarding crime and punishment in the pictorial Mapa Quinatzin, created in 1546."° Ethnohistorians have carefully cross-referenced these texts to produce histories of the laws and legal institutions of the pre-Hispanic era, most fulsomely for the cases of Tenochtitlan and Tetzcoco, the dominant altepeme of the Aztec Triple Alliance.”

Prior to the Spanish conquest, royally controlled legal and political bodies as well as local institutions and customs regulated matters concerning land tenure, property, inheritance, kinship relations, business, trade, contracts, slavery, crime and punishment, and local and imperial administration in Tenochtitlan and Tetzcoco. Missionary friars and mestizo chroniclers devoted special attention to the legal system of Tetzcoco, crediting the tlatloani (ruler, literally speaker”) Nezahualcoyotl, who governed from 1429 to 1472 with the development and expansion of the city-state’s laws and court system. According to their accounts, he was responsible for a body of eighty laws divided into four parts. He designed a legal system to administer these laws that concentrated royal power while incorporating distinct social sectors through the creation of lower-level courts. Two tribunals overseen by the tlatoani sat at the apex of the system. Below these, four supreme councils, one of which was designated a Supreme Legal Council, rendered judgments that could be appealed to two higher judges who pronounced sentence with royal approval. The jurisdiction of the four councils was determined by the nature of the dispute or offense in question rather than the quality of the person being judged or the territory from which he or she hailed. In addition to these high courts, there were local-level courts overseen by the city’s wards (calpulli, singular, calpolleque, plural), temples, schools for youth, and kinship groups. There were also separate legal fora for merchants, artisans, and the dependent towns subject to the authority of Tetzcoco.'*

The jurisdictional complexity of the system, designed to control diverse ethnic groups and multiple local rulers in an era of imperial expansion, was complemented by its strong class character. Nobles and commoners had separate courts, and nobles could only be judged by other nobles. Criminal cases followed a process of official accusation, investigation of the facts of the case, sentencing, and punishment. Judgments were often rendered swiftly—cases were limited to eighty days—and punishments were harsh, especially for the crimes of theft, adultery, drunkenness, and rebellion." More recent scholarship argues that missionaries and mestizo chroniclers portrayed the legal system of Tetzcoco favorably—as rational, secular, and civilized —in relation to that of Tenochtitlan, which they glossed as violent, expansionist, and religious, in order to justify the Spanish conquest of the latter. But in reality, these comparisons were overdrawn, and many of the institutions and principles of justice at work in Tetzcoco were generalizable across the Basin of Mexico.”

A shared feature of pre-Hispanic Nahua legal culture was the importance of local institutions, rules, and sanctions in regulating social life. In Tenochtitlan and Tetzcoco, ward officials, schoolmasters, merchant and craft guilds, and families taught and enforced proper comportment and the duties and obligations of their members.” As was true in Europe during the same period, custom rather than formal law provided the primary framework for dispute resolution, local justice, and social control.

Within the first years following the conquest, Spanish authorities had to confront the challenge of how to incorporate sovereign Indigenous peoples and their political and legal institutions into an imperial order. In a time of violence, dispossession, and uncertainty, Spanish officials knew one thing for sure: in order to subjugate the Indigenous population, they had to destroy Native institutions at odds with their economic and religious objectives, while maintaining those that served them. For their part, the Native ruling elite navigated between Spanish expectations and local pressures as they adapted their institutions to colonial demands. An important body of scholarship on Mesoamerica and the Andes focuses on the sixteenth-century transition from Indigenous authority, based on the customary control of Indigenous lords over land and labor to a colonial system grounded in two separate administrative and legal jurisdictions: the republic of Spaniards and the republic of Indians. The territorial jurisdictions overseen by Spanish magistrates and the jurisdiction of Indian cabildos (Spanish-style municipal councils) gave institutional expression to this hierarchical caste-based system. The dissolution of Native territory, which had provided the basis of elite Indigenous dominion, made the transition possible. The overall trajectory charted by this literature is one of destruction of the politically and socially complex autonomous Indigenous world of the sixteenth century to the making of a less stratified Native peasantry administered by their municipal councils and subordinate to Spanish colonizers in the two centuries that followed. In the process, Native custom gave way to Spanish norms of landholding, labor, and self-governance.”

Ethnohistorians of Mesoamerica have tempered this narrative with an emphasis on synthesis and adaptation.” Relying on Native-language sources produced by Indigenous authorities, scholars working in the tradition of the New Philology, an influential school of ethnohistory, have argued for greater continuity in Mesoamerican spatial-territorial organization, household composition, political authority, officeholding, kinship, religion and ritual, and gender relations.” Others have analyzed Indigenous-language sources to demonstrate continuities in Indigenous intellectual life, including moral philosophy and history.” More recently, intensive research in local archives across Mesoamerica and the Andes and imperial archives in Spain points to the production of a legal order characterized by the dynamic interplay of Indigenous and Spanish forms of justice and self governance.” These studies show that rather than being divided into two republics, colonial Spanish America was a constellation of cities, towns, and diverse ethnic and racial communities that constituted their own individual republics with semiautonomous jurisdiction, governed by a wide range of imperial and local norms."

Indigenous litigation in Spanish courts was a dominant feature of colonial life and a primary mode through which Native peoples sought to protect old privileges and rights or advocate for new ones. Native people appeared with frequency in front of local Spanish magistrates and in higher viceregal courts to make legal claims against Spanish colonists and other Native individuals and communities. Scholarship on Native society and colonial law contends that the law served a hegemonic function by providing a common terrain, recognized by all parties as legitimate, on which colonial authorities and Native communities struggled between and among themselves over competing interests.”* In this context, litigation represented a form of politics at varied scales, from the local to the imperial, across the civil and ecclesiastical jurisdictions, and in fora specifically designed to facilitate Indigenous access to justice such as the General Indian Court and the Protector of Indians.” Law and litigation also responded to and shaped changes in colonial governance and social order, including gendered and racial hierarchies, and interethnic loyalties and allegiances.” In some instances, Native authorities and commoners strategically combined extralegal means, such as violence or rebellion, with legal processes to achieve diverse objectives.” In others, Native petitioners, claimants, and litigants—noble and commoner alike—played upon their identity as imperial subjects, sometimes in the court of the king himself or in metropolitan courts, to demand justice and protection.”

The Spanish Crown afforded Indigenous people special legal jurisdiction in Spanish courts dedicated to Indian litigation and in Native courts of first instance in their communities. Woodrow Borah's seminal study of the General Indian Court, which operated from 1585 to 1820, reveals how the Crown attempted to facilitate access to justice to its Native subjects by streamlining the huge volume of Native litigation, reducing its cost, and providing greater fairness in legal procedures. Borah contends that the founding of the General Indian Court marked a transition from the Crown’s attempts to preserve and accommodate Native custom to a more aggressive policy of incorporating Native subjects into the imperial order through the legal category of miserable, which entitled them to the same protections as widows, orphans, the poor, and the wretched in Europe.” More recently, scholarship on local justice and the jurisdiction of Native cabildos has shown that although Spanish judges may have increasingly discounted Indigenous custom over time in disputes that reached the colony’s higher courts, custom remained central to the local affairs of Indigenous communities. As evident in Native town council records, some of which were written in Indigenous languages, and legal documents from the local courts of the Spanish magistrates, Native authorities actively produced imperial legal culture by forging local ideologies of justice, participating in networks of legal knowledge, and braiding together pre-Columbian, colonial Indigenous, and European legal traditions.” Focus on Indian jurisdiction as constitutive of early modern legal pluralism provides an important corrective to studies that have often ignored the role of Native peoples as producers of imperial legal orders.”