Tribal law

“ If, on the other hand, he is charged with slaying another, he has no kin to swear to his innocence, the oath of a non-tribesman not being held good as against a tribesman. If guilty, he has no kin bound to fight in the feud for him, or to help him to pay a galanas for his crime. So that even when at the fourth generation the descendant of the alltud becomes the founder of a gwely he has gained only half the status of a tribesman. It is not till the fourth generation of descendants in the gwely, i.e. the seventh generation from the original settler, that a complete kindred has grown up. ”

“ A more intimate acquaintance with such a tribe, however, shows that there must be some authority and restraint behind this seeming freedom, for it is found that there are well-understood customs, or tribal laws, which are binding on the individual, and which control him, as well as regulate his actions towards others. ”

“ Unless, therefore, the twelve-hynde settler was surrounded by a full kindred in the new country, he must, according to his own tribal custom, have found himself much more of an individual than he was used to be, and therefore more dependent upon the protection of his chieftain or king. ”

“ When all the Codices are taken together into account, terra Salica seems to include the whole of the land, or landed rights, of the alod. From the whole, and not only the chief homestead, the succession of females is excluded, and it is the whole, and not the chief homestead only, which is to be divided between the nepotes and pronepotes of the deceased tribesman. ”

“ The theory of this gradual growth of the kindred of the leysing is so nearly analogous to that of the Cymric alltud, and the Irish fuidhir, and at the same time so logical, when the tribal theory of blood-relationship is applied to it, that we cannot be dealing with the fanciful theory of legal enthusiasts which never had an actual place in practical life. ”

“ The homestead and grazing rights, under tribal custom, might probably simply merge and sink into the common rights of the kindred, i.e. the neighbouring kinsmen would get the benefit of them. Even if the slayer, now himself slain or an exile, had held a privileged or official position as chief of his family, it would not follow that his successor (having doubtless already a homestead of his own) would care to succeed to the one left vacant. ”

“ These clauses are interesting as illustrating Frisian methods of compurgation, the ordeal of the lot and of hot water, and trial by battle, all of which evidently belong to ancient tribal custom.
Title XIV. relates to the slaying of a man in a crowd, and describes the means taken to ascertain whose deed it was. Each division had its own custom. That of the Middle district is first described:—
The relative of the slain may summon seven men and charge each of them with the crime, and each is then put upon his oath with eleven co-swearers. ”

“ But they can hardly have wholly cast off their own tribal traditions and instincts. The continued payment and receipt of wergelds show that they did not. Even, to take an extreme case, if they came to Britain as single settlers having left their kinsmen behind them, still kindreds would gradually grow up around their descendants in the new country. And tribal custom left to itself would give to them landed rights, quite different from those of the individual owner. But the interval, apart from other outside influences, may well have subjected tribal custom to a strain. ”

“ Now when these remarkable survivals of tribal custom are found still remaining in the laws as to odal and odal-sharers and the right of kinsmen who would have to pay wergeld to redeem odal, so that it may be kept within the ring of odal-sharers, they cannot [276] be regarded as laws framed to meet the needs of individual landownership. They come down in the laws as survivals of family ownership under tribal custom, the principles of which are by no means wholly obsolete, even though society may have passed onwards some stages towards individual landownership of the more modern type. ”

“ The solidarity of kindreds, taken together with the liability of individuals to take their share in the payments for which their kindred is responsible, corresponds to the solidarity of odal landholding, taken together with the individual rights of the odal-sharers. Unless every one in a kindred had his recognised tribal rights on the land, unless he were possessed of cattle and rights of grazing for their maintenance, how could he pay his quota of cattle to the hauld’s wergeld of 100 cows? ”

“ Tribal Indians, while off their reservation and within a State, are protected by the fourteenth amendment of the Constitution of the United States, as being persons entitled to the equal protection of the laws. ”

“ And it was emphasised by the adoption of the ordeal as a Christian ceremony solemnly performed in the churches under both Frankish and Anglo-Saxon law.
The man of no kindred becomes a dependent on some one else’s land.
There can be little doubt that in the solidarity of the kindred under tribal custom we have to do with the strongest instinct which everywhere moulded tribal society. So far as it had its way and was not confronted by more potent forces it must have almost necessarily ruled such matters as the division of classes, the occupation of land, and the modes of settlement. ”

“ If we have recognised rightly the tribal principles originally at the root of the distinction between the twelve-hynde and twy-hynde classes there is no reason why we should not recognise also that besides the potent force of manorial management there may have been other influences at work widening the gulf between the two classes, and, so to speak, reducing to a level the members of each class by breaking away the rungs of the ladder between them. ”

“ Light upon this point and others may be obtained, perhaps, when the evidence of ‘Beowulf’ is analysed. This evidence will show that a man may have good cause under tribal custom not to join in some feuds. And further it will remind us that feuds often arose in contravention of tribal usage, breaking the peace which in theory the link of marriage ought to have secured. ”

“ Whether he be a freedman who has risen from the rank of the theow or thrall, or a free tribesman of low position, or one of a conquered race, or a stranger immigrant, and whether he be cottier or the holder of the typical yardland, until in the course of generations [500] a kindred has grown up around him, he remains in the dependent condition. ”

“ They seem at first sight to refer to the tyddyns or homesteads, but, as we have seen, the landed rights of grazing in the villatæ in which the gwelys were located were included also.
How the divisions worked out in practice.
It would obviously be a fair critical question to ask, what happened when the second cousins at last broke up the gwely of their grandfather and divided the land, or let us say the homesteads and the tribal rights of grazing on the land, for the last time equally per capita? There might be twenty or thirty of such second cousins. ”

“ Under all of the Court's decisions dealing with the inherent sovereignty of Indian tribes, including Montana v. United States, 450 U.S. 544, 101 S.Ct. 1245, 67 L.Ed.2d 493 tribes retain the inherent authority to exercise civil jurisdiction over non-Indian activities on reservation lands, including the power to zone fee lands, where those non-Indian activities implicate significant tribal interests. Moreover, this Court's decisions and common sense compel a finding that a tribe has zoning authority over all the lands within its reservation and not just those in "closed" areas. ”

“ There may be here and there exceptional alltuds or strangers of a higher class growing up, by the gradual process of intermarriage for four generations with tribeswomen, into the status of tribesmen. But the mass of the stranger class were aillts and taeogs living in separate taeog trefs, though, according to the surveys, sharing, often in common, certain rights of grazing over certain districts with gwelys of tribesmen. ”

“ If for the full freeman we were to substitute the word tribesman, with all the background of hyndens of kinsmen to fight and to swear for him involved in the term, then from the same point of view we must expect to find in Kent, as everywhere else, strangers in blood below the tribesmen, like the aillts and alltuds and taeogs of the Cymric Codes, the fuidhirs of the Brehon Laws, if not the liberti and liti of the Gallo-Romans, or, perhaps still more nearly to the point, the leysing classes of [484] the Norse Laws. ”

“ Changes made should be mainly in procedure, and in the criminal laws to secure speedy and impartial trials, and at the same time effective administration and respect for individual rights. In dealing with the uncivilized tribes of the islands the commission should adopt the same course followed by Congress in permitting the tribes of our North American Indians to maintain their tribal organization and government, and under which many of those tribes are now living in peace and contentment, surrounded by a civilization to which they are unable or unwilling to conform. ”

“ The Tribe cannot complain that the nonmember seeks to bring a pig into the parlor, for, unlike the closed area, the Tribe no longer possesses the power to determine the basic character of the area. Moreover, it is unlikely that Congress intended to give the Tribe the power to determine the character of an area that is predominantly owned and populated by nonmembers, who represent 80 percent of the population yet lack a voice in tribal governance. ”

“ It took another three generations to put the leysing in this position.
The full oath of a man with 12 oath-helpers of full kindred twelve-hynde.
There may, then, perhaps be involved in this matter of imperfect and perfect kindred a principle of tribal custom originally underlying the terms twelve-hynde and twy-hynde. The oath of full value under tribal usage would be the oath of a man with a full kindred, i.e. ”

“ As full citizens, Indians share in the territorial and political sovereignty of the United States. The retained sovereignty of the tribe is but a recognition of certain additional authority the tribes maintain over Indians who consent to be tribal members. Indians like all other citizens share allegiance to the overriding sovereign, the United States. A tribe's additional authority comes from the consent of its members, and so in the criminal sphere membership marks the bounds of tribal authority. ”

“ The rule is general that, in the absence of provision to the contrary, the right of individual Indians to share in tribal property, whether lands or funds, depends on tribal membership and is terminated when the membership is ended. [9] Under the operation of this rule an Indian woman loses her tribal membership where she marries a white man, separates from the tribe and lives with him among white people. ”

“ Beside this the chiefs had no individual rights to land beyond those given them by their counsellors who represented the tribes, the native law being that the land belonged to the tribe, and that none of it could be disposed of to private individuals. ”

“ That power necessarily must include the lesser power to regulate land use in the interest of protecting the tribal community. Thus, the proper resolution of these cases depends on the extent to which the Tribe's virtually absolute power to exclude has been either diminished by federal statute or voluntarily surrendered by the Tribe itself. ”

“ Nonmembers who lawfully enter tribal lands remain subject to the tribe's power to exclude them. This power necessarily includes the lesser power to place conditions on entry, on continued presence, or on reservation conduct. . . . When a tribe grants a non-Indian the right to be on Indian land, the tribe agrees not to exercise its ultimate power to oust the non-Indian as long as the non-Indian complies with the initial conditions of entry. ”

“ Many have for this reason left the tribe, and have been for years endeavoring to obtain a livelihood among the whites, maintaining but little intercourse with those remaining on the reservation, yet still holding their rights in the tribal property. ”

“ The holding that Congress had power to provide a method for determining membership in the five civilized tribes, and for ascertaining the citizenship thereof preliminary to a division of the property of the tribe among its members, necessarily involved the further holding that Congress was vested with authority to adopt measures to make the tribal property productive, and secure therefrom an income for the benefit of the tribe.
Whatever title the Indians have is in the tribe, and not in the individuals, although held by the tribe for the common use and equal benefit of all the members. ”

“ When, notwithstanding the fact of the tribes having specific boundaries to their respective grounds, and across which it were trespass to pass, we see their land privileges wholly ignored, it can excite no surprise that their personal rights should receive little respect. And, in spite of the exhortations of Secretaries of State, and the Proclamations of Governors, to treat Aborigines as equal with the Whites in the sight of the law, it is notorious that their claims have been rarely admitted, and still more seldom acted upon. ”

“ The Tribe's treaty rights must be read in light of those subsequent alienations, it being unlikely that Congress intended to subject non-Indian purchasers to tribal jurisdiction when an avowed purpose of the allotment policy was to destroy tribal government. ”

“ The average strength of American tribes is less than 2,000 members. The Cherokees, however, number about 26,000, the greatest number of Indians in the United States speaking the same dialect.
3. The right to solemnly invest the sachems and chiefs elected by the gentes, and
4. The right to depose them, even against the will of the gens. As these sachems and chiefs are members of the tribal council, these rights of the tribe explain themselves. Where a league of tribes had been formed and all the tribes were represented in a feudal council, the latter exercised these rights. ”