Since Time Immemorial: Native Custom and Law in Colonial Mexico

Over the last decade, one of the most striking developments in scholarship on colonial Latin America has been the study of what might be called Indigenous legality. Yanna Yannakakis's rigorous, imaginative, and well-written new book testifies to the vibrancy of this trend and shows how much remains to be done.Yannakakis builds on recent archival work demonstrating the centrality of law, litigation, and legal consciousness to Indigenous people during the centuries of viceregal rule. Blending legislation and legal treatises with documents from the archive in Oaxaca, she argues that “Native custom” structured legal encounters involving Indigenous people and thereby shaped colonial legality. “Usos y costumbres” as a source of law and a basis for legal action has long been recognized. Yannakakis firmly anchors this insight, revealing that Indigenous custom represented a legal invention of Indigenous actors within a Spanish framework. Of course, divine and natural law established limits to the novel understandings created by this invention. But within flexible—and negotiable—bounds, Indigenous authorities brought their own sensibilities, imagination, and reason to law in Mexico for three centuries.The book is divided thematically and chronologically into three parts. Part 1 persuades that colonial costumbre resulted from tensions and commonalities between preexisting notions of customary law, among Indigenous people and Europeans alike. Spanish concepts regarding custom were “translated” into Indigenous languages, often at the point of contact between missionaries and Indigenous interlocutors, in what was as much an evangelical as a legal enterprise. The outcome of this slippery undertaking was, as I read it, a hybrid vernacular enabled by the ambivalence inherent in mediating linguistic and cultural differences. Part 2 explores how this translation played out as Indigenous elites strove to maintain autonomy and authority in the new context of rule by outsiders. Here, Yannakakis adventurously contrasts the Codex Mendoza and the Relaciones geográficas against Aristotelian and Christian notions of ethics and politics that animated Spanish concerns for civility, morality, and order. She shows that the struggle over polygyny by Indigenous elites, recounted through two early trials, fundamentally shifted underlying notions of custom toward a more contractual and potentially transactional sensibility. In part 3, Yannakakis taps late seventeenth- and eighteenth-century documents from Oaxaca to argue that Indigenous ideas of custom allowed Indigenous authorities to create legal instruments rooted in notions of agreement rather than protection (amparo). Many of these authorities were commoners who had risen to positions of power thanks partly to collaboration with Spanish rule. These contracts—which involved writing custom down—aimed to protect landholding and labor arrangements while avoiding the delays and expenses of litigation. It will be interesting to see whether scholars working in other areas find custom-as-contract to be a more general phenomenon.Since Time Immemorial suggests three areas for further research. One emerges from an unexplored aspect of Yannakakis's argument that Indigenous authorities began to formalize custom in agreements regulating land and labor relations. Argentine legal historian Víctor Tau Anzoátegui argued thirty years ago that across three centuries derecho indiano gradually shifted from a “casuistic” case-by-case approach to legal thinking toward greater systematization. Can custom-as-contract be understood as part of this historical development? If so, what would it suggest about Indigenous notions of law and legality over time? A second topic grows out of chapter 6, where Yannakakis shows that notions of reciprocity within and between communities and powerful individuals could ground contracts. How common was this? Particularly if law was increasingly systematized in the eighteenth century, could references to reciprocity and the common good have been ways of discerning “good” from “bad” custom and also self-conscious strategies by Indigenous communities to blunt the worst effects of a more transactional economic world, without rejecting it altogether? What might this tell us about the relationship between law and economics in Indigenous communities? Finally, what happened to Indigenous legal consciousness during and after the independence wars? In her conclusion, Yannakakis extends her insights to contemporary Latin American contests over law and identity. Given the disadvantage Indigenous people face in asserting rights and enforcing obligations, she is right to do so. But we cannot make sense of these struggles without further research into how Indigenous conceptualizations of law and justice changed under pressure from the liberal nation-state during the nineteenth century. Since Time Immemorial will be essential reading for anyone taking up such questions.In her final pages, Yannakakis offers an important critique of “decoloniality” and its role in knowledge production, in both scholarship and contemporary Indigenous movements for self-determination (p. 232). She cautions against drawing false boundaries premised on flattened notions of authenticity. Knowledge production, she asserts, is necessarily “relational and historically contingent,” because Indigenous and European actors are unavoidably “entangled” (pp. 232, 235). As she notes, claims to an irreducible “Indigeneity” are in tension with bids for political equality under the law (p. 235). She is not wrong—and not wrong to raise the issue. As the discipline grounding the explanatory relevance of contingency, history is implicated in this critique. As practiced in Western universities, history is a technology of evidence and argumentation that contemporary Indigenous actors can engage on their own terms—or not. If they choose to, they may or may not share historians' ontological commitment to contingency. This is why, as Yannakakis puts it, “history as a disciplinary practice” must open itself to an ethics of engagement oriented to “historical justice” (pp. 234–35). To do so, historians might actively reflect on the sorts of truths we seek in light of what David Graeber and David Wengrow have called “the indigenous critique.”