Native American Law: Blood Revenge
Native American Law: Blood Revenge
Retaliation. Blood revenge was a process that many Native American groups used to resolve the animosities that resulted when one individual killed another. Blood revenge was, as one scholar called it, “the foundation of most [Indian] legal systems, the solder which holds together the social structure.” This practice has also been called the lex talionis, Latin for the law of retaliation. In the Mosaic law of the Old Testament blood revenge was described as an “eye for an eye and a tooth for a tooth.” However the lex talionis was far more complicated than the scripture implies. The law of blood revenge was grounded in the clan structure of a Native American society. In other words, the killing was not an act against the public but a private matter between the clans of the victim and the assailant. The killing created in the clan of the deceased both a legal right and a societal duty to enforce lethal revenge on the clan of the manslayer. At the same time the killer’s kin had a sacred obligation to produce a life in exchange for the original victim and a duty to be indifferent or unresponsive when the victim’s clan came for revenge. If this principle was respected by the society, then the second killing generally ended the retaliation process. Of course there were instances when the system did not work, and blood feuds developed between clans. However, for the most part the retaliatory killing returned the conflicting clans to the state of balance that so many native societies tried to maintain.
The lex talionis also took on spiritual significance, for some tribes believed that the soul of the deceased could not enter the spirit world until his kinsmen had avenged his death. Blood revenge thus allowed a society to channel the despair and hatred spawned by a violent killing into a customary process that had the effect, if sufficiently ingrained in the society, of inhibiting a potentially dangerous feud between clans.
The Practice. The principles of blood revenge were quite unforgiving. If a nonrelative exacted the revenge, clan law considered this killing to be a separate death requiring another round of retaliation. The killing by the nonrelative also did not wipe out the debt of blood created by the first assault. The lex talionis also did not make a distinction between an accidental death or a premeditated homicide. The questions of intent or negligence were irrelevant under the practice. Moreover, blood revenge did not excuse a killing that resulted from self-defense. Some scholars suggest that blood revenge was so fundamental to some native groups that they even applied the law to their hunting. The Cherokees believed that after killing a deer, the game’s ghost would follow the hunter back to his village in an effort to obtain blood revenge. The Cherokees feared that the ghost could retaliate by infecting the hunter and his kin with misfortune or a deadly disease. Therefore, native hunters performed special incantations over the game that they killed to pacify these spirits.
Mourning War. Though blood revenge had the potential to spawn endless bloodlettings between clans, the law was so ingrained as a way of life and justice that this was rarely the case. Each individual learned at an early age to respect the law of blood revenge. If one boy accidentally injured another, the latter child would look for an opportunity to retaliate. Retaliation was a mortal problem, however, on the intertribal level. Unlike Europeans, Indians did not usually fight wars for land, wealth, or religion. For young men war was a pathway toward social distinction. Consequently, wars sometimes began as young men set out to acquire acclaim and respect; the casualties that resulted often led to long wars of vendetta. Long conflicts, described as mourning wars, doomed some neighboring groups to almost interminable wars of blood revenge. Mourning wars between the different Iroquois tribes, for example, may have convinced those peoples to confederate in the fifteenth century and renounce the use of blood revenge against each other.
Compensation. Where legal systems are rigid in theory, as in blood revenge, they are often countered by practical exhibitions of flexibility. In other words there were probably many instances where the involved clans leavened the strict rule of revenge and allowed a killing to go unavenged. More than likely many accidental deaths went unpunished. Additionally, in various native societies the family of the victim could accept compensation payments in wampum, furs, or other goods instead of retaliating against the killer. The tender and acceptance of compensation, or the renunciation of revenge in particular situations, evidenced the perception among Native Americans that the law was functional. The law was strict; its adherents occasionally bent it.
Charles Hudson, The Southeastern Indians (Knoxville: University of Tennessee Press, 1976);
Daniel K. Richter, The Ordeal of the Longhouse: The Peoples of the Iroquois League in the Era of European Colonization (Chapel Hill: University of North Carolina Press, 1992).