1. > Pre-Columbian law > Incans and Aztecs
Latin American Law
> Pre-Columbian law > Incans and Aztecs
Last updated 27 Sep 11

2. Pre-Columbian Latin America …
Aztec Empire
Pre-Columbian Latin America …
Inca Empire
Incas governed 12 million people who were situated along the Pacific coast from modern day northern Ecuador to central Chile.
Peruvian history
Andinian Autonomy (20,000 BC AD)
Primitive era (20,000 BC to 1500 BC)
Slavery era (1500 BC AD)
Foreign domination ( )
Neo-Feudal era ( )
Capitalist era (Industrial – ) Imperialist ( )
Autonomy (1995 on)
The word Aztec is a generic term referring to several Nahuatl-speaking groups that inhabited the Valley of Mexico from [2] The people we think of as Aztecs referred to themselves as the “Mexica” and were fierce warriors, cunning diplomats, skilled builders and shrewd merchants.[3] The Mexica forged an empire of 15 million people that spanned two oceans and extended from the northern deserts of Mexico to Oaxaca in the south but for all the might, they eventually attained, the Mexica were a people of humble origin. The Mexica began their journey to greatness in a semi-mythical land they called “Aztlan” (“Place of Herons”).[4] Aztlan’s exact location is unknown, but could have been as near as 60 miles to the Mexico Valley or as distant as the American Southwest.[5] It took nearly 200 years for the Mexica to migrate from Aztlan to the Valley of Mexico, a journey that began around A.D and ended around 1325.[6] During this journey, the Mexica developed the reputation as fierce warriors with bizarre customs and were considered barbarians by all they encountered.

5. Government structure …
America was Las Leyes de Indias. Roman legal system allowed the conquered country to live according to their own laws, but Romans also let these countries to have their own gods, even Romans most of the times adopted foreign gods. Also allowed foreign people to continue having their sacra privata. This changed after the conversion of Rome to the Christianity with Constantino around 333 AD. after the ferocious persecutions of Dioclesiano. After the implantation of Christianity only one religion was allowed, and private religions were prohibited and persecuted.
The people of LatAm found themselves ruled by home-grown monarchy then by another imported from Europe.
Jim Rodden

6. Tlalocan (Council 12-20 nobles) Apocunas King
God
Sun
Quetzacoatl
Inca
Aztec King
Pope
Alexander VI (1492)
Nobility (Toltec blood)
Tlalocan (Council nobles)
Apocunas
Regional Governors
King
(Spanish / Portuguese)
Nobility
T’oqrikoq Provincial Governors
Calpixque (local Aztec governors)
Royal Councils
(Junta de Burgos)
Ethnic leaders Hunu (10,000) / Chunca (10)
Calpulli (groups of families
Conquistadores
Family units
Subjects
Subjects
Family units

7. Tlalocan (Council 12-20 nobles) Apocunas King
God
Sun
Quetzacoatl
Inca
Aztec King
Pope
Alexander VI (1492)
Nobility (Toltec blood)
Tlalocan (Council nobles)
Apocunas
Regional Governors
King
(Spanish / Portuguese)
Nobility
T’oqrikoq Provincial Governors
Calpixque (local Aztec governors)
Royal Councils
(Junta de Burgos)
Ethnic leaders Hunu (10,000) / Chunca (10)
Calpulli (groups of families
Conquistadores
Family units
Subjects
Subjects
Family units

8. Crime and punishment … Aztec style
Typically punishments for crimes committed in the Aztec Empire were extremely harsh.
Death by strangulation, stoning, and beating were the usual methods for capital punishment. Exile, confiscation of property, destruction of one's home, public humiliation, or stern lectures represented the punishments for lesser offenses. Nobles or priests were held to a higher standard and were generally subjected to harsher penalties.
Theft was one of the worst crimes a person could commit. If the stolen item was of great value or was taken from a marketplace or in the countryside, the common punishment was death by strangulation. Thieves of lesser valued items were often punished by performing restitution as slaves to the property owners. Since punishment for theft was severe, burglary incidents were rare even though the majority of Aztec homes did not possess doors.
Men and women were treated different in the case of adultery. Men were not typically punished for having an affair with a single woman, but a wife was absolutely expected to stay faithful to her husband. Although a man who kills his adulterous wife does not escape criminal liability. He may not take the law into his own hands. Adultery was customarily punishable by stoning the person to death.
Those who were drunk were also punished severely. The Aztecs believed that drunkenness was the source of crime and other social evils. If a person was caught being drunk the penalty for the first offense was public humiliation by shaving their head. Subsequent incidents of drunkenness were punishable by death. Often priests and nobles were sentenced to death upon the first offense.
External Sources –

9. Crime Punishment
Adultery Death (by stoning but not men with single woman)
Commoner wearing cotton clothing Death (strangulation or beating)
Cutting down a living tree Death
Drunkenness 1st Offense - Head Shaved
House Destroyed
2nd Offense - Death
Handling Stolen Property Sold into Slavery
Moving a Field Boundary Death

10. Crime Punishment . Kidnapping Sold into Slavery
Selling substandard goods Loss of Property
Major Theft Death (by strangulation)
Minor Theft Sold into Slavery
Treason Death, Loss of Property,
Destruction of Land,
Children Sold into Slavery

11. Questions from readings …
The Aztecs codified areas of law that were of great importance to them, notably military, tribute, and commerce. Aside from these areas, the Aztecs allowed local laws to dictate behavior, in much the same way the Romans and Spanish did. To enforce these laws, the Aztecs had various types of courts. Limited jurisdiction courts staffed by elected judges hear small matters while more important matters were heard by a three-judge general jurisdiction court staffed by appointees of the chief legal officer. Additionally, there were special commercial courts to hear cases from designated markets. These merchant courts dealt with theft more harshly than regular courts because of the importance of trade to Aztec society. Judicial procedure was primarily oral and major decisions were recorded.

12. Requerimiento / Leyes de Burgos
1: The Indians are to be removed from their land and placed into encomiendas.
2: The Indians will leave their land voluntarily to come to the encomiendas.
3: The citizen to whom the Indians are given must erect a structure to be used as a church. In the church must be a picture of Our Lady and a bell with which to call the Indians to prayer time.
4: To make sure the Indians are learning Christianity properly, they shall be tested every two weeks and taught what they do not know by the Encomendero. He shall teach them the Ten Commandments, the Seven Deadly Sins, and the Articles of Faith.
5: A church will be built equidistant from all estates. On Sundays, Mass shall be observed and a feast will be eaten.

13. Assimilating conquered peoples were never addressed by the British
Jim Rodden / Winslow Taylor
Basic features of Aztec law (written code, predetermined punishments, specialized courts, availability of counsel, evidentiary rights … come from basic nature of justice, not cultural similarities
Winslow Taylor
Aztecs codified the laws that were important to them: on commerce and military.
Jim Rodden

14. Are slaves/natives human?
Justinian Digest
III. De condicione hominum.
9. Et quidem summa divisio de iure personarum haec est, quod omnes homines aut liberi sunt aut servi
Las Leyes de Las Indias
Queen Isabella
qualification of the Indians. early Rome - qualification of slaves, if they where man or no. any body could be slave, if you commited a crime, if you did not paid your debts, etc. but the alia divisio in the Digesto says:
Are human beings: free and slaves man. So this discussion was held over centuries and was accentuated with the discovery of America. Was important because due to this consideration, the colonist could kill the Indians. Both thanks to the Queen Isabella that was catholic and the influence of the church that Indians were not exterminated in Latin America. There was a second reason why there was not an extermination policy in Latin America, and was based on Public International Law. Was the right of every conqueror who won a battle to kill the defeated. Isabella once again said that it was not a war. Was a church mission to indoctrinate de indios in to the catholic religion.
Palacios Rubios’ works, including the Requerimiento, were written under the umbrella of Pope Alexander VI’s grant to Ferdinand and Isabella “the sole right to rule and evangelize the New World” in Izbicki, Thomas M., An Argument from Authority in the Indies Debate, by, The Americas, Vol. 34, No. 3. (Jan., 1978), p The legitimacy of this grant was upheld by the Junta of Burgos in 1512 as well as other decrees. Id. The Junta was presided over by Spain’s first minister of colonial affairs, Bishop Juan Rodriguez de Fonseca. Nowell, Charles, Book Reviews, The Hispanic American Historical Review, Vol. 34, No. 4. (Nov., 1954), p During this time the doctor of law, a title Palacios Rubios was also known by, wrote De las Islas del Mar Oceano, a work that “centers chiefly on the matter of religion and of the part religion should play in determining relations between Castilians and Indians.” Id. at The decree, known as the inter caetera, was a papa bull, or a “special kind of patent or charter issued by a pope … issued … only for the most formal or solemn of occasions.” The inter caetera was issued largely as a political response by the Spanish monarchy to the Portuguese claim that the newly found land was rightfully theirs because of previously released papal bulls. While the papal bull stated that Spain could “instruct the … inhabitants and residents and dwellers therein in the Catholic faith, and train them in good morals,” Spain, with the help of men like Palacios Rubios, utilized this decree as a free ticket to wage war on non-convert natives. Id.
Juan Lopez de Palacios Rubios was born in 1450 and died in 1524, 11 to 12 years after he wrote the Requerimiento. See Palcios Rubios was a glossator, having glossed the Leyes de Toro. Id. Palacios Rubios, in addition to writing a treatise on Indian Law, wrote a treatise on family law and was a member of the Royal Council. Id. Palacios Rubios based his holdings that non-Christian governments could be subdued on the Hostiensis, a 13th Century canon lawyer who held that infidels did not possess dominium. Izbicki at 401; Muldoon, James, John Wyclif and the Rights of the Infidels: The Requerimiento Re-Examined, The Americas, Vol. 36, No. 3. (Jan., 1980), pp Additionally, Palacios Rubios called the natives “free”, however he held that they “should hearken to the teachings of Christian priests.” History has shown that Palacios Rubios will not be remembered for his treatises, but instead for the effect his work had on Latin America as it justified the actions of men like Hernan Cortes and Francisco Pizarro and their defeat of the Aztec and Incan nations, thus leading to today’s readings. See,
Hernán Cortés
Doña Marina (la Malinche)

15. Modern LatAm indigenous issues …
Liberation theology
Peru, Colombia, Mexico
The essential difference was in the influence of religion (which is logical I think, as the founders did not base the president’s authority on God, stressing separation of church and state, etc.).  Instead, the early settlers attempted to more generally “civilize” the Native American population.  There was a sense or attitude that Native Americans should assimilate and be more like the early colonials, in all aspects of life. The United States government even appointed agents, to live among the Native Americans and to teach them how to live like whites!  For example Benjamin Hawkins: “He was adopted by the Creeks, and took one of their women as his common-law wife. He began to teach agricultural practices to the tribe, starting a farm at his home on the Flint River. In time, he brought in slaves and workers, cleared several hundred acres and established mills and a trading post as well as his farm. His operation expanded until he had over 1,000 cattle and a large number of hogs. For years, he would meet with chiefs on his porch and discuss matters while churning butter. His personal hard work and open-handed generosity won him such respect that reports say that he never lost an animal to Indian raiders. He was responsible for the longest period of peace between the settlers and the tribe, overseeing 19 years of peace.” (wikipedia). Considering the good relations that seemed to result, maybe it wasn’t such a bad idea in some respects!
Also of interest – George Washington had a “six-point plan” for civilization of the Native Americans, which included:
1. impartial justice toward Native Americans,
2. regulated buying of Native American lands 3. promotion of commerce 4. promotion of experiments to civilize or improve Native American society 5. presidential authority to give presents 6. punishment of those who violated Native American rights

16. Zapatistas
(2003)
The Zapatistas accused the Mexican government of keeping the Zapatistas in poverty. Despite, Chiapas providing Mexico with coffee, cattle, corn, 54% of its electricity, 13% of its corn, 5% of timber, 4% of bean, 13% of gas and 4% of oil, many indigenous people in Chiapas are literate and only about half of the men and a tiny percentage of the women speak Spanish. Census figures show that only 11% of adults earn the government’s assessment of a moderate income of at least $3, 450 compared to a national average of 24%. Less than 50% of households have running water compared to a national average of 67%. Only 14% have televisions compared to 45 percent nationally. Furthermore, half of Chiapas’s 3.7 million people suffered from malnourishment in Most of the wealth is concentrated in a few non-indigenous “ladino” landowners who control Chiapan politics and continue to build their fortune on the work of the indigenous population.
The Zapatistas also accused the government of a tradition of violence and brutality towards the Indigenous population. There were many instances of violence and brutality against the Indians of Chiapas who rebelled against the ladions is the 1700s. However, in more recent years, the violence and brutality has not subsided. In the early 1980s, a former agriculture teacher and two friends who were education and training leaders of indigenous organizations in Chiapas were arrested and tortured. In 1998, Patrocino Gonzalez became governor of the Chiapas and the violence against the Chiapas Indians increased. The governor expanded the Chiapas penal code to provide for punishment of public protests and other forms of political dissents. As a result many political prisoners populated the Chiapas prisons. In 1989, ladinos and policemen destroyed an indigenous settlement in Chiapas de Corzo and someone opened fire on a peace march lead by members of the Emiliano Zapata Peasant Organization. Over the next few years the police would again break up a peace mark by the Chiapas indigenous Indians with clubs and tear gas and arrest a number indigenous Indians for political reasons.
The Zapatistas also accused the Mexican government of stealing their rights to acquire their land by amending the Mexican Constitution. The Zapatistas also declared that the Mexican government had taken away any autonomy that they would have had by fraudulently preventing the election of their desired leaders and preventing them from using customary laws and traditions to settle disputes.
Within a few days of the Zapatistas offensive, which included the attacking of military prison and freeing of almost 180 prisoners, the kidnapping and threat to execute a former Chiapas governor, the Mexican army sent bomber planes, helicopters, tanks, armored personnel carriers and roughly 12,000 troops to quell the uprising. Knowing that they were outnumbered and they lacked adequate firepower to fight the army, the Zapatistas retreated to the jungle before the Mexican Army arrived.
However, the leader of the EZLN, Subcomandante Marcos, began a national public relations campaign to gain support for the Zapatistas because he feared military reprisal. Marcos sent Mexican newspapers a series of communiqués detailing the discrimination that Indians faced and calling for a revolution of Mexican politics. Marcos managed to capture the hearts of many Mexicans and popular opinion began to turn against the Mexican Army and government. Thousand of students joined non-Indigenous Mexicans in protest of the Mexican government's policies in the Chiapas. President Salinas eventually fired Interior Minister Patrocino Gonzalez, a former Chiapas governor accused by the Zapatistas of violating human rights during his tenure. On January 12, Salinas announced a unilateral cease fire and offered to negotiate with the Zapatistas about their concerns.
Since the cease-fire, talks between the Zapatistas and the Mexican government started and stopped several times. However, on February 16, 1996, the Zapatistas and the Mexican government signed the San Andres Accords. However, the Zedillo administration balked at enacting the compact and implementing changes in the constitution and laws to fulfill the compact’s promises. The Zedillo administration was over in 2000 and Vincente Fox became president. IN December of 2000, Fox took ordered military roadblocks in Chiapas to be removed and Mexican troops stationed near indigenous camps pulled back. Fox also urged Congress to adopt the Indian rights bill Zedillo had rejected and in 2001, the Mexican Senate unanimously passed the bill. However, many Zapatistas argue that the bill is a watered down version of the Sand Andreas accords, which the Mexican government has not yet ratified.
REGJIL 47, Regent Journal of International Law, "TODAY WE SAY, ENOUGH!" THE ZAPATISTA REBELLION, AUTONOMY, AND THE SAN ANDREAS ACCORD, Spring 2003.

17. End

18. Samis
Since this article is mainly about indigenous people, I figured it would be interesting to compare the history of indigenous people in the Americas to the history or my country’s indigenous people – the Sami (Sámi, Saami, Lapps and Laplanders)
Sami is the indigenous people of my country. You also find Samis in Sweden, Finland and the Kola Peninsula of Russia. They are one of the biggest indigenous groups Europe, and they speak different Sami languages, which is nothing like Norwegian. Norway has about 50,000 Samis. Sami means “people” and is the official name.
As the Indians, the Sami have lived in the region since prehistoric times, and have been traced back to as far as 8100 BC. They were originally hunters and fishers, but they, as their American counterparts, began pretty early to domesticate animals – the reindeer in particular. In Norway today Samis are well known for their reindeers, although only 10% actually live as reindeer nomads. The Sami, as most Indians, lived in harmony with nature, and believed that the land was holy with sacred places. The Sami lived in this harmony until the 9th century when people started immigrating north – into Sami territory. From the 17th to 19th centuries, the government offered incentives to colonize Sami territory. Much like the Indians in the Americas during the colonial era, the Sami were pushed off their lands and forced to assimilate into the dominant culture and convert to Christianity. Laws were created to force the Sami to speak Norwegian and to deny them their rights to the land. The strongest pressure took place from around 1900 to 1940, when Norway invested considerable money and effort to wipe out Sami culture. The oppression, though comparable to the Americas, did for the most part not include violence, torture, hunting, killings or enslavement. It was more of a tough assimilation process, much like the “second conquest” in 19th century America with egalitarianism. As in the Americas, there has “recently” been a strong force to end the oppression of Samis in Norway. The past 40 years the Samis have reclaimed their culture and language, they have gotten their own Sami Parliament, laws to protect their culture, the right to use their language in government, their territory belongs to them and not the state and an official apology from the Norwegian government. As a result, about 50% of all Samis in Norway engage in traditional Sami activity such as sustainable use of their territory – fishing, hunting, producing crafts and herding reindeer. It seems from our reading that this is not yet true for the indigenous people of Latin America. The gap between law and practice seems to be bigger in Latin America and the quest for a human rights revolution is still going on, while our quest for equal rights has been in process for a while.

19. Chibchan / Chocoan / Cueva
Panama
Chibchan / Chocoan / Cueva