Prevalent scholarly studies of indigenous language documents from Mesoamerica's colonial times include the predominant argument that they were written by native scribes to protect community interests. The belief is that scribes performed as notaries in municipal councils to generate native language notarial documents as indemnity against possible infractions of their communities’ rights to possess property. Notarial documentation was usually extrajudicial, created by the municipal scribe for community protection and not for any specific litigation before a Spanish magistrate. Their writings represented internal municipal administration and the jurisdiction of the native cabildo (town council) within each republic of Indians. They could be utilized, if necessary, to bolster indigenous claims to their rights and privileges in litigation brought before Spanish officials.
1. Restall, Matthew, The Maya World, Yucatec Culture and Society 1550–1850 (Stanford: Stanford University Press, 1997), 51–60 ; Lockhart, James, Of Things of the Indies: Essays Old and New in Early Latin American History (Stanford: Stanford University Press, 1999), 98–119 ; Terraciano, Kevin and Sousa, Lisa, “Historiography of New Spain,” in The Oxford Handbook of Latin American History, Moya, José, ed. (Oxford: Oxford University Press, 2011), 30. Restall argues the representative nature of the indigenous town council for the cah, a Yucatec Maya word for town and ward. While he acknowledges (58) the ratifications that Maya cabildos in outlying areas far from Spanish colonial administration made of Spanish documents, the overwhelming insistence is that Maya notarial documents were written for the purposes of legal protection, and that few included Spaniards. James Lockhart, in his chapter “Double Mistaken Identity: Some Nahua Concepts in Postconquest Guise” (1985, 1993), looked at identity in the form of corporate culture and emphasized the importance of the altepetl, a “city-state sized entity” that an indigenous town council ruled over and for which a notary kept records. Lockhart placed emphasis on the community and the notary or scribe as the recordkeeper for the altepetl. He states (106) that “the indigenous concept that writing or painting of records on paper in the name of the community is a dignified and necessary task gave the post its first impetus.” Terraciano and Sousa write (30), “Studies based on native-language records reveal many of the activities and pre-occupations of corporate communities, which were represented by a municipal council of elected male officials who used alphabetic writing as a means to defend and promote their collective and individual interests.”
2. Burns, Kathryn, Into the Archive: Writing and Power in Colonial Peru, (Durham and London: Duke University Press, 2010).
3. Carmack, Robert M., Quichean Civilization: The Ethnohistoric, Ethnographic, and Archaeological Sources (Berkeley, Los Angeles, London: University of California Press, 1973), includes significant colonial documents written in K'ichee’. Nevertheless, Carmack's focus is on pre-Columbian cultural continuities with lesser attention to notarial documents and their juridical contexts in colonial Guatemala. James Lockhart and Kevin Terraciano have both introduced the importance of context to indigenous language texts used in litigation in New Spain. Lockhart, James, “And Ana Wept,” in his Nahuas and Spaniards: Postconquest Central Mexican History and Philology (Stanford: Stanford University Press, 1991), concentrates on the deconstruction of the text to examine the use by Nahua scribes of Spanish forms and the subtleties of Nahua discourse in a judicial document written in Nahuatl. Terraciano, Kevin, “Crime and Culture in Colonial Mexico: The Case of the Mixtec Murder Note,” Ethnohistory 45:4 (Autumn 1998): 709–745 , details the social and political culture of Yanhuitlan to contextualize the importance of a murder note written in Ñudzahui (Mixtec) and the role language played in an indigenous cultural construct of gender, sexuality, and violence in a criminal legal framework. The most important study of legal action and native culture using indigenous language documents is Kellogg, Susan, Law and the Transformation of Aztec Culture, 1500–1700 (Norman: University of Oklahoma Press, 1995), which not only examines bills of sale written in Nahuatl to track changes in property-holding based on gradually acquired colonial gender biases but also outlines the use of legal documentation as literary legal performance.
4. Lockhart, James, The Nahuas After the Conquest: A Social and Cultural History of the Indians of Central Mexico, Sixteenth Through Eighteenth Centuries (Stanford: Stanford University Press, 1992), 5–9 ; Restall, Matthew, “A History of the New Philology and the New Philology in History,” Latin American Research Review 38:1 (2003), 113–134 .
5. Taylor, William B., Drinking, Homicide, and Rebellion in Colonial Mexican Villages (Stanford: Stanford University Press, 1979), utilized criminal documentation to show social patterns in three distinct areas that, as the title suggests, had been exaggerated by colonial rhetoric. Owensby, Brian, Empire of Law and Indian Justice in Colonial Mexico (Stanford: Stanford University Press, 2008), zooms in on how indigenous peoples in central Mexico during the seventeenth century fashioned and manipulated Spanish law to serve their own purposes. In the same tone, Yannakakis, Yanna, The Art of Being In-between: Indigenous Intermediaries, Indian Identity, and Local Rule in Colonial Oaxaca (Durham: Duke University Press, 2008), shows that indigenous peoples were involved political and legal intrigue within and between their own municipalities, and that go-betweens, both indigenous and non-native, were essential in advocating on behalf of their own or collective interests.
6. Borah, Woodrow, Justice by Insurance: The General Indian Court of Colonial Mexico and the Legal Aides of the Half-Real (Berkeley, Los Angeles, London: University of California Press, 1983), argues the premise that Spanish law is a vehicle of colonialism. He explains that this tribunal would not have been impossible without an intersection at which viceregal executive power overlapped with the judiciary process of the audiencia in Mexico City. His focus on the institution of the General Indian Court leaves little room for the investigation of how indigenous peoples engaged with Spanish law in their own municipalities and how such engagement functioned in quotidian matters. Borah attempts to address events in such jurisdictions but his use of documentation prepared by viceroys or royal edicts penned by the Council of the Indies shows Spanish colonial justice at the top peering down on the litigants below.
7. Rama, Ángel, The Lettered City, trans. and ed. Chasteen, John Charles (Durham and London: Duke University Press, 1996).
8. Rappaport, Joanne and Cummins, Tom, Beyond the Lettered City: Indigenous Literacies in the Andes (Durham: Duke University Press, 2012), successfully contextualizes the intellectual synthesis that indigenous peoples in the Andes accomplished in both writing and visual imagery as they confronted new ideas and colonial mindsets. Many of these syntheses had to do with legal practice. Burns, Kathryn, in Into the Archive, Writing and Power in Colonial Peru, and “Notaries, Truth, and Consequences,” American Historical Review 110: 2 (April 2005): 350–379 , addresses (362) how the archive is constructed, the origins of notaries, both Spaniards and indigenous, and their less than savory reputations as charlatans and self-interested, partisan entrepreneurs.
9. García, Carlos Ochoa, Derecho consuetudinario y pluralismo jurídico (Guatemala City: Cholsamaj, 2002), examines customary law in K'ichee’ communities and juridical pluralism in the nation of Guatemala. However, it does not follow a chronology and tends to consider K'ichee’ litigation thematically and thus ahistorically.
10. Charles, John, Allies at Odds: The Andean Church and Its Indigenous Agents, 1583–1671 (Albuquerque: University of New Mexico Press, 2012), also argues the use of literacy by natives in the Andes, evidencing their correct use of legal formulas to litigate against clerics in highland Peru.
11. Few publications about colonial Guatemala directly relate to indigenous peoples and litigation. Nonetheless, Peláez, Severo Martínez, La patria del criollo: ensayo de interpretación de la realidad colonial guatemalteca (Mexico: Ediciones en Marcha, 1994), uses legal cases to prove the dispossession of native lands by Spaniards, creoles, and wealthy Indians. He characterizes the true natives as members of perfect collective corporate communities, making them in his Marxist interpretation victims of the agricultural capitalists that constituted the emerging bourgeoisie. His selection of cases does prove his thesis but ignores the nuances of colonial interaction evident in the case featured in this article. The most significant contributions to the study of notaries and the law in colonial Guatemala are Muñoz, Jorge Luján’s many essays, republished in Ensayos de historia jurídica y del notariado en Guatemala (Guatemala City: Academia de Geografía e Historia de Guatemala, 2011). His assessments include many different types of notaries, including royal, public, and scribes of the town council. He considers both indigenous and non-indigenous litigation.
12. Medidas de cinco caballerías de trrã q.e se le adjudicaron a Migêl de Riba de Neira y Christobal Sanches, Archivo General de Centroamérica [hereafterAGCA], A.1, leg. 5956, exp. 52164. The official measurement of the lands in question included only five caballerías of land, not the total eight. The documents are unclear as to whether Christobal Sanches and Miguel de Riba y Neyra came back later and had three more caballerías measured.
13. For a description of the idea of “possession” in seventeenth-century colonial Spanish America, see Owensby, Empire of Law and Indian Justice in Colonial Mexico, 90–129.
14. Owensby mentions in Empire of Law several types of petitions for land claims, including the use of “mercedes, judicial orders of possession, notarized affidavits memorializing acts of posession, wills and testaments, or bills of sale.” The term “notarized affidavit,” was used in the K'ichee’ document treated in this article, and best describes its function (100).
15. Kathryn Burns, Into the Archive.
16. Horn, Rebecca, Postconquest Coyoacan:Nahua-Spanish Relations in Central Mexico, 1519–1650 (Stanford: Stanford University Press, 1997). Although her work is set in central Mexico among the Nahua and Nahuatl speaking peoples, Horn shows the importance of business transactions between Spaniards and Nahuas. She expertly examines the interplay between Spaniards and Nahuas to show through Nahuatl-language wills from Coyoacán that the business relationships of local Spaniards with individual Nahuas were important to the market economy and long-distance trade (206–207). She also highlights the alienation between Nahuas and Spaniards in the province of the Marquesado del Valle, where Cortés and his heirs held preeminence, and other Spaniards, though excluded by decree, defied the mandate in practice (145–209). Although she presents many petitions (judicial documents), bills of sale, and testaments (extrajudicial documents) in Nahuatl, none are offered as evidence of contractual agreements and none were presumably given to Spaniards as part of a legal proceeding, as was the document in this case. Nevertheless, Horn's arguments for the interactions of Nahuas and Spaniards are similar to those in this case study. Matthew Restall, in “A History of the New Philology and the New Philology in History” (113–134), predicted that the third phase of the school of New Philology would expand beyond ethnohistory to comprehend the study of other groups in Latin America, including Spaniards and Africans. He highlights among others, Rebecca Horn's Postconquest Coyoacan as an example of this third phase.
17. Muñoz, Jorge Luján, ed., Reflexiones geográficas e históricas del siglo XVIII del Reino de Guatemala, Tomo I, Relaciones geográficas e históricas de la década de 1740 (Guatemala City: Universidad del Valle de Guatemala, Magna Terra Editores, 2006), 135 , reveals the distance from the colonial administrative center of the region and the parochial head town of Tejutla to San Bartolomé Sipacapa.
18. Brian P. Owensby, Empire of Law, 97.
19. Autos de m. . . caballerías de trrã echas a instancia del yndios Christobal Sanches del Pueblo de Sn. Bartolomé Sipacapa, AGCA, A.1, leg. 5947, exp. 52059, fol. 4.
20. Lovell, W. George, “Landholding in Spanish Central America: Patterns of Ownership and Activity in the Cuchumatán Highlands of Guatemala, 1563–1821,” Transactions of the Insitute of British Geographers, New Series 8:2 (1983): 214–230 , highlights the importance of litigation known as composición de tierras and the extent of landholding by both Spaniards and Indians in the Cuchamatán highlands, adjacent to the district of Quetzaltenango. The article does not directly focus on litigation and its processes.
21. The K'ichee’ commonly used the term atz or “elder brother” to represent a lateral fictive relationship between equals, especially if both were elites, as was the case here.
22. Owensby's description of the amparo in Empire of Law (44–45, 52) exceptionally defines its use.
23. Autos hechos en virtud de especial despacho del S.or oydor Jues de trrãs librado a pedimento de Maria y Juana Sanches,” AGCA, A.1, leg. 5956, exp. 52163, fols. 1–2.
24. Owensby, Empire of Law, 55–58. Owensby defines the use of the term “miserable” as a legal strategy.
25. Autos hechos en virtud de especial despacho del S.or oydor Jues, AGCA, A.1, leg. 5956, exp. 52163, fol. 1v.
26. Ibid., fol. 4.
27. Autos de m . . . caballerías de trrã echas a instancia del yndios Christobal Sanches del Pueblo de Sn. Bartolomé Sipacapa, AGCA, A.1, leg. 5947, exp. 52059, fol. 1.
28. Medidas de cinco caballerías de trrã q.e se le adjudicaron a Migêl de Riba de Neira y Christobal Sanches,” AGCA, A.1, leg. 5956, exp. 52164.
31. Martin Nesvig, “Spanish Men, Indigenous Language, and Informal Interpreters in Postcontact Mexico,” Ethnohistory 59:4, special issue, A Language of Empire, a Quotidian Tongue: The Uses of Nahuatl in New Spain, Robert C. Schwaller, ed. (Fall 2012): 739–764.
32. Medidas de cinco caballerías de trrã q.e se le adjudicaron a Migêl de Riba de Neira y Christobal Sanches, AGCA, A.1, leg. 5956, exp. 52164, fol. 13.
33. Jameson, Fredric, The Prison-House of Language: A Critical Account of Structuralism and Russian Formalism (Princeton: Princeton University Press, 1972); Foucault, Michel, The Archaeology of Knowledge, trans. Smith, A. M. Sheridan (London and New York: Routledge, 2002); Hanks, William F., Converting Words: Maya in the Age of the Cross (Berkeley, Los Angeles, London: University of California Press, 2010). Hanks's arguments on Maya language that has been “reduced” or restricted by the missionary friars is relevant to how the meaning of language changes with translation.
34. It is strange in this case that the Spanish defendant, Miguel Antonio de Riba de Neyra, did not call any Spanish witnesses, whose claims may have held more weight. However, since this case involved a land claim made by Indians, it may have behooved him to strengthen his argument by calling indigenous witnesses.
35. Medidas de cinco caballerías de trrã q.e se le adjudicaron a Migêl de Riba de Neira y Christobal Sanches, AGCA, A.1, leg. 5956, exp. 52164, fol. 13v.
36. Kathryn Burns, Into the Archive, pp. 20–41.
37. It is not made clear whether Ramón de Mendosa testified in K'ichee’ or in Mam. If he testified in K'ichee’, it would make him trilingual in K'ichee’, Mam, and Spanish. He was an alcalde of his native Huehuetenango, where the language of inhabitants has always been Mam. From his own testimony we know that he spoke Spanish; nevertheless, he chose to testify using an interpreter. It may be assumed that the interpreter, the mestizo Juan de la Cruz Amaya, spoke Spanish, K'ichee’, and Mam and could therefore translate among them, although the documentation does not indicate that he could speak Mam. We must assume that because Mendosa was a resident of Sipacapa he knew K'ichee’ and could therefore testify in that language.
38. Autos hechos en virtud de especial despacho del S.or oydor Jues de trrãs librado a pedimento de Maria y Juana Sanches,” AGCA A.1, leg 5956, exp. 52163, fols. 6r–7r.
40. Matthew Restall, Maya World, 60.
41. Dennis Tedlock, trans.with commentary based on the ancient knowledge of the modern Maya, Quiché, Popol Vuh: The Definitive Edition of the Mayan Book of the Dawn of Life and the Glories of Gods and Kings (New York: Simon and Schuster, 1985).
42. Autos hechos en virtud de especial despacho del S.or oydor Jues de trrãs librado a pedimento de Maria y Juana Sanches, AGCA A.1, leg. 5956. exp. 52163, fols. 6r–7r.
43. Regarding the “flowing” of a “broken ass,” Francisco Ximénez gives this definition: “Paxih tin quebrar; huirse como el ganado o la gente.” See Ximénez, R.P. Fray Francisco, O.P., Primera parte del tesoro de las Lenguas Cakchiquel, Quiché y Zutuhil, en que las dichas lenguas se traducen a la nuestra, española, (Guatemala City: Academia de Geografía e Historia de Guatemala Publicación especial No. 30, 1985), 447 .
44. Personal communication, Timothy J. Knab, July 18, 2014.
45. Dennis Tedlock, Popol Vuh, 109, 347, 353, 361. Tedlock translates the four names of the messenger owls from Xibalbá this way: Caquix Tucur (macaw owl), Huracan Tucur (one-legged owl), Chabij Tucur (shooting owl), and Holom Tucur (head owl, or skull owl). He does not mention a xoch’ tucur, a barn owl, or an unmodified owl. See Van Akkeren, Ruud, Xib'alb'a y el nacimiento del nuevo sol: una vision posclásica del colapso maya (Guatemala City: Piedra Santa Editorial, 2012), 158–160 . Van Akkeren argues in his deconstruction of the mythical portions of the Popol Vuh that the Tucur may actually have been a Post-Classic lineage connected to the Pokom who were the inhabitants of the region close to Rab'inal. The Tucurub’ were a people noted in El testamento y título de los ancestros de los Señores de Caqcoh, San Christóbal Verapaz, AGCA A1 18, exp. 54885, who resided in Tecolotlán (place of the owls), and were connected to the colonial town of San Miguel Tucurú. Perhaps they were traitors to the K'ichee’ in Rab'inal.
46. In a personal communication, Frauke Sachse noted that the use of the semantic couplet in K'ichee’, xoch tucur, is used frequently in K'ichee’ sermons and religious documents like the Theologia Indorum by Domingo de Vico to signify “traitor.” The entry for tucur by Fray Francisco Ximénez, Primera parte del tesoro de las lenguas, 547, fol. 178.1, reads “Tukur – el buho, xoch tucur traidor, nuzamabal xibalbay lo llama al buho porque quenta en sus historias que este pajaro fue embiado por mensajero a llamar a hun ahpu y xbalanque al ynfierno.” Tukur – the owl, xoch tucur, traitor, nuzamabal xibalbay, (messenger of Xibalbá) [the spelling betrays the pronunciation of Xibalbá in Kaqchiquel]) is called the owl because they retell in their histories that this bird was sent as a messenger to call Hun Ahpu and Xbalanque to Hell.
47. Autos hechos en virtud de especial despacho del S.or oydor Jues de trrãs librado a pedimento de Maria y Juana Sanches, AGCA A.1, leg 5956, exp. 52163, fols. 6r–7r.
48. Pedro Cortés y Larraz, Descripción geográfico-moral de la Diócesis de Goathemala hecha por su arzobispo, vol. I, of Biblioteca “Goathemala” de la Sociedad de Geografia e Historia de Guatemala, vol. 20, 156–157.
49. Tedlock, Barbara, Time and the Highland Maya (Albuquerque: University of New Mexico Press, 1982).
50. “caxcol, Quiche el dolor, caxcol rail”. Francisco Ximénez defines the noun caxcol as “the pain.” It can also be written qaxqol. Following it is the term rail, which also means pain, as noted in Fray Francisco Ximénez, Primera parte del tesoro de las lenguas, 167, fol. 29.1.
51. “Autos hechos en virtud de especial despacho del S.or oydor Jues de trrãs librado a pedimento de Maria y Juana Sanches,” AGCA A.1, leg 5956, rxp. 52163, fols. 6r–7r.
53. Capitanía y corregimiento de Quezaltenango, años 1701–1722, 1723, y 1724, AGCA A1.20, leg. 1503, exp. 9983, fols. 111r–117v.
54. “Autos hechos en virtud de especial despacho del S.or oydor Jues de trrãs librado a pedimento de Maria y Juana Sanches,” AGCA A.1, leg 5956, exp. 52163, fols. 6r – 7r.
55. Burns, Kathryn, “Notaries, Truth, and Consequences,” American Historical Review 110:2 (April 2005): 350–379 ; Rappaport and Cummins, Beyond the Lettered City, 113–151.
I would like to thank Yanna Yannakakis, Frauke Sachse, and Timothy Knab for reading the manuscript and offering constructive criticisms and for asking relevant, thought-provoking questions on both the content and the translation. I also wish to acknowledge my colleague Catherine Olgesby who read a version of the article, and my academic writing group at Valdosta State University whose members looked at portions of it. I would like to thank the blind peer reviewers, Ben Vinson III, editor, and the editorial staff at the journal, The Americas, for their suggestions and patience. It made the final product better. Last but not least, I would like to acknowledge the aid of Eduardo Elias for teaching me the K'ichee’ language; without him this article would not have been possible.
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