That Which Belongs to All: Khipus, Community, and Indigenous Legal Activism in the Early Colonial Andes

[Erratum]

In recent years, scholars from a variety of fields have advanced the idea that native legal activism worked as one of the most widespread and effective strategies for the defense of communal assets, political autonomy, and customary law in early colonial Peru. Indigenous claimants, petitioners, and legal intermediaries begin to appear in the historical record just ten years after the initial encounter at Cajamarca in 1532. After embracing Iberian legal culture in the early 1540s, individuals of noble Inca descent began to engage with local and metropolitan courts, preparing letters, reports, petitions, and proofs of services and merit aimed at securing their status within the new order.¹ Native lords (caciques) and communities of non-Inca origin joined as active litigants and petitioners in the late 1540s, hiring advocates and solicitors and sending their own delegations to tend to their legal affairs in Lima, seat of a royal court of appeal. During the two decades that followed the promulgation of the New Laws (1542), which granted these courts of appeal or audiencias in the Americas the right to assess and revise Indian tributary quotas, Lima experienced an explosion of litigation by native polities requesting a reduction of their fiscal burdens and caciques seeking confirmation of their chiefly rank. Lawsuits pertaining to lands and pastures, town boundaries, and lordship (cacicazgo) rights soon ensued. In the early 1560s, the first Andean caciques crossed the Atlantic on behalf of their communities and reached the stillitinerant Habsburg court. Indigenous groups quickly became expert litigators in secular and ecclesiastical courts. Their legal activism continued unabated throughout the Habsburg era.²

What formed the basis for this type of collective legal action? In line with Castilian judicial procedure, bringing petitions and filing lawsuits before the audiencia in Lima or the Council of the Indies in Madrid was done mostly in writing, sometimes by indigenous petitioners and litigants themselves, but primarily by the Spanish advocates, defenders, and attorneys who handled the case once the initial complaint or petition had been filed.³ As a result, surviving legal dossiers often seem like discrete and self-contained worlds of ink and paper wherein the opening demand or petition signals the beginning of indigenous concerted legal action. But appearing in writing before the magistrates of the king, in Peru but especially in Spain, was oftentimes the culmination of communal mechanisms of coordination, negotiation, and decision making that Andean groups had set in motion before filing the first petition. Internal and collective processes that guaranteed a regular stream of resources, part of which were invested in securing legal assistance and royal favor at different levels, also lay beyond the record, even though they were crucial for producing satisfactory outcomes and sustaining legal endeavors over time and across space.⁴

This article delves into some of the practices and institutions that made petitioning the king and litigating in his courts possible. It counters the intrinsic tendency of the judicial archive to efface the contributions made by mid-ranking native officials of the municipal councils, legal intermediaries, and, ultimately, commoners to native Andean ‘litigiousness.’ Judicial advocacy opened multiple paths to power within litigating communities, but these paths were not necessarily restricted to the elite of pre-Hispanic origin and their descendants, or to the different factions within this cacique privileged class. In other words, power did not always flow from top to bottom. It could not. Large-scale litigation demanded that some of that power be built and maintained from the ground up.⁵

In part because of the built-in distortions of the judicial record and the procedural rules of the legal system, members of the traditional Andean elites, whom the literature generically identifies as “caciques,” appear as the visible heads in most lawsuits and administrative procedures. Their recognized position at the top of the Rep ública de Indios demanded it be so. What is more, they seem to have stood at the forefront of the natives’ legal offensive that started in earnest in the 1550s. As scholars have shown, many Andean...