Karl Nickerson Llewellyn - The Cheyenne way: conflict and case law in primitive jurisprudence
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The Cheyenne way: conflict and case law in primitive jurisprudence
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The Cheyenne Indians are one of the famous tribes of the Great American Plains. Divided as they were after 1833, into a northern division which centered its life in the high plains of southeastern Montana and eastern Wyoming, and a southern division which centered in western Oklahoma and eastern Colorado, they wove a web of their activities across the entire breadth of the Great Plains. They were known to the travelers of both the Oregon and Santa Fe trails. Originally inhabitants of the woodland lake country of the upper Mississippi valley, they had come at the beginning of the century past to an effective adoption of the new horse culture and buffalo-hunting economy of the Plains tribes. Theirs was a nomadic, semi-pastoral and hunting existence. With the Arapahoes and Gros Ventres the Cheyennes are the westernmost representatives of the important Algonkin group of tribes. And though the specialist recognizes some traits in the Cheyenne culture which are characteristic of their cognates of the Northeast Woodlands, in its general aspects Cheyenne culture is Plains.
The reader who, perchance, is unfamiliar with the background and details of Cheyenne life will, if he so desires, find a rich and competent presentation in George Bird Grinnell's classic, The Cheyenne Indians. Here, too, will be found the known history of the Cheyenne migrations. Those who wish to follow all the stirring heroics of the Cheyenne warsfirst against the enemy tribes, and in later years against the tidal wave of whiteswill find the complete epic thriller in Grinnell's The Fighting Cheyennes.
In this book we make no presumptions of doing over again what George Bird Grinnell has done so nobly for the tribe he loved. It is not our aim or function to redescribe Cheyenne society and technology. We are presenting a description and analysis of a vital phase
Page viii
of social life which was ethnologically terra incognita in the days of Grinnell. We have aimed at the development of a social science instrument for the recording and interpretation of law-ways among primitive peoples; the Cheyennes and their Way provide the subject material.
The new data for these chapters are the result of field investigations among the Northern Cheyennes on the Tongue River Reservation at Lame Deer, Montana. In the summer of 1935, both authors shared in the field work, and in 1936, Hoebel returned to an additional summer's work for completion of the materials. The theory of investigationa case method procedure of going in the first instance after cases of trouble and how they were handledis the result of the joint efforts of the authors, one of whom is a specialist in law, the other in anthropology. Both are students of human behavior: proponents of realistic sociology. The method has been developed for what we hope will be a series of studies of the dynamics and functioning of legal institutions. It received its preliminary testing in the investigations of the Comanches of Oklahoma done by Hoebel as a member of the ethnology field group led by Ralph Linton in 1933, and then of the Fort Hall Shoshones (Idaho) in 1934, as also in Llewellyn's continuing work on American legal institutions and his studies of legal processes in smaller modern groups. By the time we came to do the field work for this culture a fairly adequate working technique had been articulated. Where needed refinements have been discovered, they are indicated in the text.
The manner of interpretation rests in the first instance on the technique of the American case lawyer, save that each case is viewed not lopsidedly and solely as a creator or establisher of correct legal doctrine, but is viewed even more as a study of men in conflict, institutions in tension, and laymen or craftsmen at work on resolution of tension. Law-stuff, seen thus, is seen more deeply and more sharply, simply as law-stuff. It is our firm conviction that to see it thus is to see it also in its working relation to social science at large. Modern American jurisprudence can thus enrich, and be enriched by, the study of non-literate legal cultures.
Page ix
The method is grounded in the American System of case law in which we root; especially in the modern treatment of cases at law as being not only crucial tests of the meaning of rules of law, but also as exhibits of law's processes and techniques, and of the interaction of the legal system and the legal craft-specialists with the social, economic, political, and indeed individual aspects of the society concerned. In this, the present volume not only builds on, but also supplements and cross-lights Llewellyn's series of studies on the ways of case law in the United States; i.e., the possibilities of the method for developing lines of significant comparison between superficially quite dissimilar systems of law are not hypothetical, but have already been tested.
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