Constructing Law, Space, and their Subjects:
Realities of Law and Governance among the North American Indians and Australian Aboriginals

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The Living Law of Aboriginal Communities:
The Cheyenne Example

Aboriginal peoples in North America also developed sophisticated systems of policing of activities which could give rise to competition and therefore aggression. A classic example investigated at length by jurist Karl N. Llewellyn and anthropologist, E. Adamson Hoebel in their seminal book The Cheyenne Way (Norman: University of Oklahoma Press, 1941) was the policing of the buffalo hunt among the Cheyenne. The following is an excerpt from this book:

... for the Cheyennes the military societies had truly become an ever-ready arm of a state "towering immeasurably above single individuals," not only on the particular occasion of the communal hunt, but in internal private and civic affairs as well. Though, in general, subordinate to the tribal Council in policy-making, the military functioned importantly in meeting individual situations of tribal concern.

When a company on duty handled a violation of the law, it rolled police, judiciary, and correctional activities into one breathless action. Their law was anything but dilatory. What is more, it was usually effective in restraining a people not used by custom to restraint. But patterns of gracefully submitting to the new policing, or carrying it out, had not yet had time wholly to crystallize. Impulse and individualism - and a touch of resentment at the innovations - were still at work. Else, there would not have been the numerous instances to record which so nicely reveal the law, nor could the existence of law have been so clearly tested. This, and the law of homicide, make clear that the Cheyenne state was a reality of soundness and permanence.

One may argue as to whether there was even a germinal state to be found among such lowly peoples as the Great Basin Shoshones. With the Cheyennes, however, enough advance has been made to find organized government definitely established and growing. The Cheyenne Council, as an executive and deliberative instrument, existed to serve a necessary end in attaining political unity. The system of ungraded military societies was unquestionably borrowed in part from other sources, and its original main purpose was fraternal and ceremonial. The utilization of the military societies in the growing scheme of government was probably an afterthought, a happy expedient, a vigorous and successful experiment, but one which came soon to color - as an organ of government both flexible and close must color- every phase of Cheyenne life and law. "The soldiers" were the police, a legislature, the voice of the People. The marvel is that, in the continuing emergency, the "office" aspect took shape as definitely as did the aspect of "power." The further marvel, for a modern, is to see this happening with almost no reference to known, phrased, "rules" of law. (pp. 130-131).

Click for photo
"A Warrior-Society Parade"
c. 1830-1879
Man Riding on a Cloud
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"Man Riding on a Cloud (Alighting on Cloud or Touch the Cloud)
He Fought Major Elliott's Soldiers at the Washita"
c. 1830-1879

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