# The American Indian/Chapter 11

CHAPTER XI
SOCIAL REGULATION
This work can scarcely be considered complete without some more definite discussion of social control. With the general modes of control, such as are almost universal among mankind, we have nothing to do, such subjects properly belonging to sociology, our concern being with the particular machinery by which this control is exercised. When a man commits a crime his social group is presented with a problem for which the mode of attack is already conventionalized. To meet such contingencies the highly organized governments of Peru and Mexico maintained complex judicial systems. In the former country each village had its appointed judge to whom the inspectors, or disciplinarians, reported all irregularities. There was one of these inspectors for each recognized social unit. The village judge dealt with all such cases and levied the punishments, usually beating or whipping, and, if the code required, execution. It seems, however, that these petty magistrates were not permitted to try important cases, particularly those which we class as civil. At regular periods officials from the capital visited each province and held court for the presentation of complaints and petitions. Though the data leave us in doubt, they imply that appeals from the decisions of the local magistrate could be filed in this court. At any rate, these traveling judicial inspectors reported back to the supreme judicial bureau, which body, in turn, delegated judges to visit the locality of the petitioner and try the case.
For the Nahua system we have abundant data in so far as they apply to the City of Mexico. Here the calpulli, or gens, had representatives who sat as a lower court before whom all irregularities were presented by the proper officers; but all their important decisions were passed up to a higher court, ​consisting of a number of judges appointed by the ruler. These held court daily in a special chamber of the palace. In addition, there seems to have been a special body of thirteen judges who sat with the ruler at stated periods for the review of unusually important cases. Finally, there was a grand chief justice who stood as the responsible head of the system. To what extent the subject cities and provinces shared in this system is not clear, but we are informed that their local courts were required to refer their decisions to the higher courts of Mexico City. For the earlier Maya we have very little data, but since their culture was of a high order and contributed liberally to the later Nahua, we may safely assume an almost equally complex system.
In the preceding chapter, we noted a striking similarity in the social organizations of Peru and Mexico in that their political complexes were built of gens-like units. Here we see that their judicial systems also were based upon these same units, for at the bottom were the courts or magistrates for the gens, subordinate to the magistrates of the governing gens. In the same way that a single warlike gens built up a political complex by subjecting other gens or groups of gens to its rule, it also erected a system of control and discipline. We may anticipate, therefore, that as we leave these centers of military culture we shall find little more than the separate individual gens systems. For example, south of Peru were the Araucans with a loose political system; and here we are told the "law of revenge" was supreme, that is, the individual was his own judge and executioner. Colombia and Ecuador doubtless had something of a judicial system, but elsewhere in South America we find only simple tribal groups where folk justice was free from all restraints.
Turning back to North America and beginning at the farthest north with the extremely simple culture of the Eskimo, we find a considerable body of regulations, as must be the case in any well-formed culture, but still no effective judicial machinery to enforce them. If a man finds his conventional rights trod upon, he has no recourse except to resort to blood vengeance. Yet, we do find some incipient judicial ​procedure, for among the Hudson Bay Eskimo the men of a group may, in consultation, condemn an obnoxious individual and arrange for some one to dispatch him at the first opportunity. Again, in Greenland there is a definite mode of dealing with an offender by challenging him to a public contest in which he is made to face his opponent who sings derisive songs specifying his misdeeds. Such ordeals are not only used in case of theft and murder, but even to discipline a lazy or incompetent person.
In the great interior of Canada among the Déné tribes and eastward, the fundamental legal procedure was about as above, each group of people being informally dominated by one or more head men who exercised whatever judicial functions there were. The same can be said of the interior salmon area; but throughout, the right of blood vengeance was recognized. For example, we are told that among the Shoshoni the head man, or chief, did not concern himself with murders, but left that to the injured party.
In general, we can say that this loose type of personal freedom to revenge, without definite judicial procedure, is distributed from southern California northward through the Plateaus, the Plains, Canada, Alaska, and Greenland. However, in Washington, Oregon, northern California, and practically everywhere in the Plains, we find the idea of compounding, or paying the injured party. Referring to the map for social groups, we note that this distribution follows closely the limits of the simple band, or village type of grouping.
Turning now to the regions manifesting gens and clan organizations, we note that in the North Pacific Coast area there is little to add, except that the idea of compounding by gifts of property or slaves is rather prominent. When a murder is committed, the essential payment is a life of equal rank, but this applies when the parties are of different families, whereas, within the family, the family chief adjusts the case. In short, the blood vengeance again holds here and a distinct judicial procedure has so far not been brought to notice, nor do we hear of police officers. On the other hand, the blood vengeance was so far formalized that the taking of a life by the ​injured party closed the incident and did not lead to an endless chain of murders.
Shifting eastward to the great gens area around the upper Mississippi and the Great Lakes, we find something more elaborate. In the first place, the Siouan group of tribes clustering around the Missouri had a well-developed police system which, however, had no definite relation to a gens group, but was initiated and controlled by a governing head for the whole tribal group of gentes. A further peculiarity of this is that such a government was transitory or periodical, being called into life each spring and ending with the last fall bison hunt. For the gens itself there was no judicial system other than the individual acts of its members. About the only formal procedure was one that seems genetically related to the calumet idea; for example, certain head men could wave a pipe over contending parties who were then bound to desist or to be set upon by the community.
Turning now to the Algonkin-speaking tribes occupying the greater part of the Ohio and St. Lawrence drainage, we find no trace of a police system except among a few groups in immediate contact with the Siouans. On the other hand, we seem to have a more sharply defined gens system in which the idea that the gens is responsible for the acts of a member is clearly formalized. Yet, we cannot be sure as to this, since in many cases, as, for example, among the Ojibway, where the gens lines do not correspond to the local grouping and the local group seems itself to be the judicial unit. So it may turn out that what we have here is merely an emphasized idea of the community's responsibility, a factor common in some degree to all parts of the world. The most interesting point here, however, is a highly formalized procedure which constitutes a kind of trial under the authority of the chief and the shaman. The principle of procedure is that the friends and relatives of the deceased are persuaded by gifts and speeches to forgive the offense. If they cannot be so persuaded, the prisoner is executed at once. This precise form of judicial procedure is found among the Ojibway and Micmac, with suggestions of it throughout the whole stretch of Algonkin ​peoples. The Iroquois also had formal trials, but the procedure was different; witches, for example, were tried before the council, a regularly constituted body, but murderers were subject to immediate revenge by the injured family, unless a peace token was offered. Yet, the council would intercede and try to mediate. This failing, the aggrieved were left free to exercise their right, which in turn might call for retaliation.
As to the tribes of the Gulf States who had progressed so far as to form strong confederacies, and where we have reason to expect some judicial system, no very exact statement can be made. We infer from the available sources that murders and lesser crimes were left to adjustment by the interested parties, blood vengeance being the rule. It is true that the village government seems to have had a few police officers, but these were to preserve order at ceremonies and to regulate labor in the communal fields, not to punish offenses against the individual. However, as to trials and formal methods of adjusting crimes, we are left with the impression that in this particular the tribes of the South were far behind their northern neighbors. We should not forget, however, that this may be an unjust estimate arising from inadequate data. One judicial principle strongly developed in the South is that the murderer shall be killed in precisely the same way as his victim, and this, again, holds for the Iroquois, but not for the surrounding Algonkin tribes.
There remains but one more area in North America, viz., southwestern United States. Among the less sedentary peoples, as the Apache and Navajo, the idea of compensation for murder and minor injuries prevailed. Adjustments were usually made in public, but the decision seems to have rested with the injured party. They could, if they chose, exercise the right of vengeance, but the other side was then free to retaliate. For the Pueblo peoples proper we lack adequate data, but the inference is that the paying of an indemnity was universal. In general, the governing machinery of these villages seems to have been directed toward religious ends rather than otherwise and so to a large extent rests with the ​few properly accredited officials. It is true that there was a constant night patrol of the villages and on ceremonial occasions a day police, but that these officers acted in case of murder or theft is improbable.
Now that we are at the end of this somewhat tedious survey, we may summarize the data, meager though they be. In the first place, it is only the complex governments of Peru and Mexico that exercised systematic judicial functions in what we consider criminal cases. Almost everywhere else the family group, the gens or clan, as the case may be, was left to its own devices in meeting such situations. There were always conventional ways of proceeding, but these were almost entirely outside the jurisdiction of the tribal government. Everywhere, of course, the concept of "life for life" is entertained, but the tendency in the New World is for the true blood feud to be found among those tribes having the simplest family organizations, whose distribution is shown on our map for social grouping; while in the regions of clans and gentes provision is made for compensating the injured parties either by a single execution, for which no retaliation is permitted, or by the payment of an indemnity. That this seemingly close correlation indicates a true functional relation between the two is doubtful, since it may be largely a matter of geographical segregation; yet, there remains the undeniable fact that at least the conventional methods of dealing with crime have geographical distributions in every way comparable to those for other traits of culture. Hence, their presence in any given locality is to be explained by historical principles and not as due to inherent reactions. The principle of "blood for blood" may be innate and consequently world-wide, but its mere presence does not account for the conventional procedures we have noted, nor for their peculiar distributions.
Like every other subject in this volume, this one admits of great elaboration, but space and time forbid more than passing notice of a few collateral practices. Thus, it often happens that the shaman in a group comes to have an official relation to its judicial system. This is particularly noticeable among the wilder peoples of South America where the shaman, or ​peaiman, becomes apprehender, judge, and executioner without check or supervision.
As we have noted, the idea of a trial in which evidence is presented does not apply to the judicial procedures we have outlined, except in the area of intense culture. Outside of this area, the only cases in which proof of guilt is sought by prosecuting parties are in the trials of witches as reported for the Iroquois and parts of the Pacific Coast. At some of the Algonkin trials evidence might be produced to show that murder, for example, was excusable, but taking the country at large, the conventional procedures assume that the identity of the guilty is known to all concerned before the trial. Naturally, there are cases in which the identity of the criminal is in doubt, and in such a contingency the shaman may be called upon to discover him. Further, throughout both continents, and especially in eastern South America, normal death is considered as probably due to secret magic by some personal enemy, and it is the shaman's place to discover the culprit. Thus, we have no difficulty in explaining how the shaman comes into close association with the machinery of the law and how in many cases he stands as the highest exponent of authority. The regions where the shaman is most supreme are precisely those in which the blood feud is least restrained: viz., the Amazon country, the Arctic coast belt, the interior of Canada, and the great western plateaus of the United States. Here he often becomes the relentless avenger, hounding the steps of the real or assumed criminal, until opportunity presents itself for his dispatch.
Another subject of interest is the oath. It has been stated that nothing like an oath existed in the New World, but we do find customs that can scarcely be interpreted in any other way. Obviously they serve the same purpose. Thus, when a Blackfoot woman faces the sun in the presence of a tribal priest and says, "May I never set my foot into another snow, if, etc.," or when a Dakota, challenged as to his war record, touches a knife point held by a referee and makes a similar pledge, we have the essentials of an oath. In this connection the remarks of Garcilasso on the oath taken by a native Peruvian should ​be read. While this author denies that the natives swear, yet the witness said, "I wish that the earth may swallow me up alive, as I stand, in case I speak not the truth."
Finally, some note should be made of the ordeal, which also had its analogous forms in this hemisphere. Throughout the interior of Canada and even among some of the Eskimo the right to a woman and other privileges is decided by a wrestling match. In parts of the Amazon country an arm or leg is plunged into a vessel filled with vicious insects to test the integrity of the individual, and again, poisonous ants are allowed to bite one to show his remorse for injury to another. If space permitted, we could work out the distributions of these practices, but we have gone far enough to reveal the character of the phenomena. Thus, we find the principles of "life for life," indemnity, social control of settlements, tests by ordeals, and oaths, in the New World as well as in the Old. Where they differ is in the conventionalized forms of procedure. There are, however, no differences common to all parts of the New World, each geographical area manifesting some individuality.
CONCEPTIONS OF PROPERTY AND INHERITANCE
From our own point of view, property may be conveniently comprehended under the classes of real and personal. Real estate, or property in lands, is with us an individual matter, but such an idea seems to have been foreign to the New World. Here the land, in so far as it was owned at all, was the property of the family group. The Nahua, with all their complexity, never got above this idea, nor did the Inca. The one fact that makes this especially clear is the entire absence of the idea of selling or conveying title to lands. Other kinds of property there were, which were freely given and exchanged and even levied upon by the organized governments of the central areas for taxes or tribute, yet in no case do we find evidence that this procedure extended to the land. On the other hand, the right to the exclusive use of certain plots by the social group, gens, clan, etc., was clearly recognized. Yet, the true communal character of the system appears ​when we note that almost everywhere there is an annual allotment of fields to the households of the group, thus distinctly demonstrating each individual's equality in the ownership of the community land. As in most other things, the Inca and Nahua highly systematized the workings of these fundamental concepts, forming thus codes of land laws. The boundaries to the group lands were fixed and the death penalty placed upon any one tampering with them. Also, certain unoccupied lands were set aside for the support of the governing class, labor upon which was requisitioned as needed. One who reads the special literature of the subject can scarcely fail being impressed with the thorough control of agriculture exercised by these centralized powers. In each community there were officials whose duty it was to call the people to the fields, and to direct their labors. Further, if we follow out the distribution of maize culture we find associated with it practically all of the following concepts: the family ownership of land without rights of sale or conveyance, the setting aside of plots for the rulers and religious officials, and, finally, the constant control and supervision by those in authority. Yet, the non-agricultural areas have these same characteristics to a less degree; hence, it is not fair to assume that the development of agriculture was wholly responsible for the general communistic conception, a conception universal from Cape Horn to the Bering Sea. Rather should we say that this fundamental communal concept is the foundation upon which the one grand agricultural complex of the New World was reared.
Personal property in the New World consisted of houses, chattels, produce, etc. In a very considerable part of North America, at least, the house, furniture, and all food was the property of the woman, regardless of whether descent was reckoned in the male or female line. No doubt a careful investigation of this subject would lead to important results, but this inquiry is for the future.
A form of property not usually recognized by us is that of the hereditary right to certain functions in the community, as the ownership of rituals for ceremonies, ceremonial songs, ​certain specific arts and trades, etc. While these were often hereditary to definite social groups, we frequently encounter the idea that the right can be sold or conveyed at will. Perhaps closely associated with this is the custom of formally presenting gifts which in some localities is so systematized that it becomes a mere exchange of presents. In fact, we find in the North Pacific area under the name "potlatch", a very complicated system of gifts on a loan and credit system.
As to the rules of inheritance, little need be said here. Our previous discussions have shown that both male and female inheritance are recognized according to the respective social areas. Since land cannot well be alienated from the initial group, the rules of inheritance can only apply to personal property and privileges. As to the latter, while there is some tendency to recognize the rights of the son to his father's or maternal uncle's position in the tribe, as the particular system may require, the usual procedure is to exercise some kind of selection from the several descendants as a guarantee that a competent incumbent will be secured. This is plainly noticeable in the Inca and Nahua systems and can be safely taken as another of the fundamental elements in the social structure of the New World.
MARRIAGE REGULATIONS
As in other parts of the world, one cannot marry back into his own family nor among the immediate relatives of his parents. Beyond this, the restrictions vary as has been suggested in the preceding chapter, becoming in the main mere conventions. Chastity before marriage seems not to have been required, but in many places was regarded as essential to certain religious functions, indicating that, after all, it was an ideal. On the other hand, adultery was severely punished when the woman was the offender, while in many tribes the male offender was regarded as innocent.
One prominent trait among the Eskimo is the exchange of wives, indulged in chiefly as a matter of hospitality. This is also found among many of the Déné tribes of Canada and an analogous custom is found in parts of the bison area. In most ​parts of both continents there seem to have been certain festivals during which restrictions were relaxed, but the latitude granted by all these social sanctions did not weaken the gravity of transgression under other conditions.
As to forms of marriage, it appears that the general tendency in both continents was monogamous. On the other hand, almost everywhere the custom was for chiefs, priests, and shamans to have more than one wife. In the centers of higher culture, those occupying positions of power and influence kept large establishments for women. The area in which plural marriage seems strongest is the bison area of North America, but this may be a partial exaggeration due to relatively richer data. Some reports for the Eskimo and Déné tribes indicate occasional states of plural husbands, but this appears rather as an adjustment to necessity than as an established mode of marriage. So thus, taking the New World as a whole, we find it singularly free of anything like group marriage, such as is found in the Pacific Islands and Asia. Yet we do find forms of cross-cousin marriage in California and northward into the salmon area; also, it has been found in Guiana, South America.
The notion that the husband of a woman acquired superior rights to his wife's sisters is found in many parts of the New World, and its natural correlate, the taking over of a brother's or, in some cases, a maternal uncle's widow. These are particularly strong wherever plural wives are common. On the other hand, strict and universal monogamy holds for a few communities, as the Iroquois and certain Pueblo villages of southwestern United States.
Marriage ceremonies and the regulations for divorce vary greatly from tribe to tribe, making their discussion here impractical. The conventional exchange of presents previously noted is so developed in some localities as to give the impression that a man purchases his wife, but in many such cases the relatives also make an equal return as a preliminary to the ceremony. Yet, when property is given to the bride's family, whether as gift or purchase, and the woman for any cause deserts her husband, he can demand equivalent return. ​In Peru and Mexico the governments regulated divorce, but elsewhere the parties could separate at will, though the respective families of each party had a voice in the settlement.
EDUCATION AND GENERAL DISCIPLINE
We sometimes read specific statements that infanticide and neglect of the helpless prevailed in the New World, but a moment's reflection will make clear the improbability of either having been the rule. The exposing of infants was resorted to only in case of necessity or advisability. Thus, in the Amazon country, if the mother die soon after confinement, the child will be buried with her or otherwise disposed of, unless some woman volunteers to rear it. This seems to have been common in other regions as well, but the Eskimo visited by Stefánsson often exposed female infants to preserve the balance between population and sustenance. As to the aged and sick, we have the formal practice of putting to death among some of the Eskimo and Déné, a custom also found in Siberia. On the other hand, among all hunting peoples who shift about from place to place, the infirm are often of necessity left behind to their fate. Yet the reported examples of such cruelties can usually be matched by incidents of the opposite tenor, and since the mythologies of the various tribal groups contain plots showing retribution for such cruelties, and herald the triumphs of the oppressed over the unjust, we must regard all such phenomena as exceptional.
Travelers everywhere have remarked upon the extreme indulgence toward children. This is very marked among the Eskimo, though perhaps not more so than among the Fuegians of South America. Wherever we have data, parents almost never punish or even severely reprove, but such pressure as may be needed is exercised by certain relatives. In the United States this is sometimes the clan or gens uncle of the offender, according to sex and mode of inheritance. Though our information for Peru and Mexico is in this respect vague, something similar seems to have applied there. In any case, these higher cultures had some formal provisions for training. For example, in Mexico City there were two kinds of schools, ​those for religious instruction and those for military training. To the former, both sexes were admitted in a manner closely analogous to the convent system of Europe. A similar custom held for the Maya and the Peruvians.
A point of special interest here is that one aspect of this cloister-like school is found in contiguous parts of North America. We note that these children, particularly the boys, went to live in the school or in barracks, or rather, they slept there of nights. This trait is particularly prominent in Maya and Nahua culture. Among the Pueblos of the Rio Grande, the kiva or ceremonial chamber was the sleeping place of males and a similar practice is found in parts of California and northward.
Outside of these regions, nothing like a school appears, but here and there seem to have been some kind of disciplinary officials, as for example the men who superintended the morning baths of boys in the bison area. Chastising the young seems to have been practised in the centers of higher culture, but outside of these limits was practically unknown. Exceptions must be made, however, of ceremonial whippings in southeastern United States and the Amazon country. In short, the same principle applied to control of the young as to adults, viz., admonition and ridicule. White people living with American natives are repeatedly astonished at their extreme sensitiveness to disapproval and ridicule. In fact, the whole control of the local group in aboriginal days seems to have been exercised by admonition and mild ridicule instead of by force and punishment. While the necessities of the case modified this in Mexico and Peru, we still note that one prominent feature of Nahua life was the elaboration of the moral lecture. In the Pueblo region of the Rio Grande the chiefs and head men were given to daily moral lectures, and while the custom did not appear so frequently elsewhere, it was still in evidence. Perhaps we are again dealing with a general characteristic of New World society.
In this connection some note may be taken of the ideals that were held up to the young in these lectures, particularly for boys. The Nahua put great emphasis upon the art of war, ​the taking of prisoners, and even of scalps. They maintained a series of graded war honors in the form of paint, styles of hair-cut, and finally, eagle feathers. Such ideals and customs were also prominent in all the outlying regions of lower culture, but particularly close parallels are observable in the Indians of our western plains.
* ↑ Joyce, 1912. I; Markham, 1910. I.
* ↑ Bandelier, 1878. I.
* ↑ Boas, 1907. I, p. 117.
* ↑ Thalbitzer, 1914. I.
* ↑ Lowie, 1909. I.
* ↑ Wissler, 1912. III.
* ↑ Hickey, 1883. I, pp. 550–556.
* ↑ Morgan, 1904. I, Vol. 1, p. 321.
* ↑ Adair, 1775. I; Cushman, 1899. I.
* ↑ Bandelier, 1890. I, p. 205.
* ↑ Im Thurn, 1883. I.
* ↑ Im Thurn, 1883. I.
* ↑ Garcilasso, 1688. I.
* ↑ Bandelier, 1878. I.
* ↑ Boas, 1897. II.
* ↑ Rivers, 1914. I.
* ↑ Stefánsson, 1914. I.
* ↑ Barnes, E. and M.S., 1896. I; Sahagun, 1880. I.
* ↑ Sahagun, 1880. I, p.58.