Constructing Law, Space, and their Subjects:
18 of 20
Realities of Law and Governance among the North American Indians and Australian Aboriginals
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"|
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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"
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