2 - The Law of Native Americans, to 1815

Summary

At the time of European contact with North America in the early sixteenth century, Native Americans across the continent lived in a diversity of groups characterized by highly varied governmental and family structures. Geography, language, and economy affected the way in which these societies understood law and formed legal institutions. It is not easy to cover in one essay the many legalities and legal practices of Native American peoples before their eventual designation as “domestic dependent nations” of the United States in 1831, but it is possible – and perhaps more important – to show how their jurispractice changed as European colonization began to alter their law.

No historian has ever attempted a narrative of indigenous American jurisprudence. Indeed, until the 1970s it was difficult to find historians who would even admit that Native Americans had something that was identifiable as “law” in the way that Europeans use the term. By then, discovery narratives had begun to give way to neo-conquest analyses that stressed the brutality of European behavior and the often fatal biological consequences of European occupation of the Americas after 1492. However, until the cross-cultural encounter narratives of the 1990s began to appear it was difficult to find anything in the historical literature that seriously suggested that pre-contact American Indians possessed laws, much less had structures and systems. Even though legal anthropology had begun to have significant effects on legal history by the 1980s, the historical narrative of Native American jurispractices for the centuries prior to Chief Justice John Marshall’s “Indian” trilogy seemed more or less immune from its influence.