Customs apart: rethinking inheritance and competing land claims among Native commoner women in colonial Andean villages

ABSTRACT

In this essay, I interrogate a handful of rare village records to probe more deeply the participation of rural Native women in conflicts over inheritance in the central Andes during the seventeenth and early eighteenth centuries. I focus on the wielding of written land titles, such as wills, certified lists of fields, fragments of land inspections, and writs of protection and possession, by these women as they claimed control over plots, homes, tracts, groves, and other household and extended-family assets within the commons. Their cases suggest that, rather than undermining women’s rights to dispose of property, titling and the establishment of municipal courts and the expansion of the legal possibilities for claiming land within this jurisdiction created new opportunities for some of them to defend and enact those rights. More importantly, their cases strongly suggest that gender relations were as much constitutive of kinship, community, and ownership relations as they were mediated by them, warning us of the risks of isolating gendered forms of expressing power (and the inheritance practices that they could underscore) from other power relations operating at the village level.

KEYWORDS:

• Native legal history
• land tenure
• inheritance
• commoners
• native women
• colonial Andes
• Peru

Acknowledgements

Many people provided support and inspiration for this essay. I wish to thank Manuel Bastias, Alcira Dueñas, and the other participants in the ‘Ownership regimes in the Iberian world, 1500–1850’ workshop at the Max Planck Institute for Legal History and Legal Theory for their critical engagement with an earlier draft. My colleagues Jessica Pliley, Sara Damiano, and Jeffrey Helgeson also provided poignant criticism. I am grateful to Indiana University’s Institute for Advanced Study and Lilly Library for supporting archival research for this piece. Finally, I owe a debt of gratitude to Dana Leibsohn and the anonymous CLAR reviewers for helping me bring this essay to its final form. Any shortcomings are my sole responsibility.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 ‘Autos seguidos por doña Catalina y doña Luisa Cusichimbo, indias del pueblo de Socos en la provincia de Huanta […], sobre propiedad de unas tierras en el valle de Tomaringa,’ 1642, Archivo General de la Nación [AGN] (Lima), Derecho Indígena y Encomiendas, leg. 8, exp. 107, fs. 30r–31v.

2 ‘Autos seguidos por doña Catalina,’ f. 34.

3 At this point, the historiography on women and Spanish imperial and local courts is impossible to cite in a footnote, but see Premo (2011), for an excellent summation of the major trends and a compelling defence of the need to go beyond hegemonic frames and textual analysis to focus instead on the context surrounding court cases, especially what Premo calls ‘the pre-history of women’s suits.’ My analysis has also benefited from an ‘ethnographic eye,’ which I have borrowed from notable works on women and Native family plots in Mesoamerica, made in large measure possible by wills and local census-cadastral records and maps. Pictorial sources include detailed information on family and individual holdings, their size and distribution, the names of current and past owners, and the kinship relations by which land was transferred. See Cline 1984; Greer 2017, 34–36; Johnson 2017; Kellogg 1995, chapters 3 and 4; Miller and Mundy 2012; Mysyk and Martínez 2020; Pulido Rull 2020, 72; Williams and Harvey 1997. There is no comparable historiographical or textual tradition for the Andes.

4 For examples of the decisions, see Mumford 2016; Puente Luna 2021; Puente Luna and Honores 2016.

5 From Thompson's perspective, more so than ‘land,' what beneficiaries like Isabel or Bernabé inherited in Tomaringa was ‘a place within a complex gradation of coincident use-rights,' a ‘grid of customs and controls within which that right was exercised' (1976, 337).

6 On rural Andean households and family units more broadly, see Mayer 1984; Moore 1978. On Native women and land in rural and semi-rural settings, see Graubart 2017, 75; 2022, 170–72, 223–24; Jurado 2013, 615; 2018; Penry 2019, 14; Serulnikov 2008. On cacicas and rural property, most recently, Pérez Miguel and Honores 2021. On Inca women, Vicuña Guenguerich 2017. Cacicazgo succession was another important arena where inheritance law/custom and female legal agency instersected, especially if the office was claimed or inherited by women, but I cannot explore it here. For the most up-to-date discussion, I refer the readers to the volume edited by Ochoa and Guenguerich 2021.

7 Graubart 2007; Mangan 2005; Nowack 2006; Ramos 2010; Salomon 1988.

8 Highlighting the structural constraints that ‘male-centric’ inheritance practices ‘introduced’ with the Spanish conquest would have imposed on these women, Karen Powers argued for instance that ‘[exogamous marriages and patrilocality] made it difficult for women to access inherited property in their ayllus [descent groups] of birth, creating a situation where they only had access to land through their husbands in their ayllus of residence. It also complicated their ability to activate their rights to inherited property and, hence, to bequeath it to their daughters’ (2005, 61).

9 Powers 2005, 38, 44–45 [quotes], 58, 61, 66, 164.

10 In her recent monograph, Karen Graubart discusses a 1603 case in which an Native woman from Surco, a reducción in the Lima Valley, unsuccessfully challenges her male relatives’ claims to a house in the village (2022, 170–71).

11 Powers 2005, 37 [quote], 66. On ideals of complementarity, symmetry, and parallel descent and transmission, see Salles and Noejovich 2006; Silverblatt 1987, 5, 20. The evidence for non-elite, peasant women (and for ordinary rural folk in general) is scant; see Zuidema 1967, 255. Moreover, while some marriages might seem exogamous at one level of social integration, they can be considered endogamous at a higher level; see Sendón 2010, 82.

12 Silverblatt 1987, 5, 119–20 [quotes]. Similarly, Powers argued that Iberian notions of land tenure ‘were near reversals of women’s property rights’ (2005, 66; see also Kellogg 1995, 4). Yanna Yannakakis's book on the interplay of Native custom and law in colonial Oaxaca came out after this essay had been completed. While I cannot engage with it substantially here, it is important to acknowledge Yannakakis's important contribution as well as her point that 'recent scholarship has overturned the custom-law opposition and custom's identification with a purported peasant and Indigenous primordiality' (2023, 4). Custom, moreover, 'was at times equivalent to law; on others, a source of law; and in others, an alternative legal framework. (2023, 2).

13 Thompson 1993, 179–82; Graubart 2017; 2018; 2022; Mirow 2004, 6–7; Premo and Yannakakis 2019; Puente Luna and Honores 2016. On Native customs and how their recognition by the Crown unleashed a process of transformation of those very customs, see Herzog 2013; 2021 (and now Yannakakis 2023: esp. Chap. 5).

14 For two often overlooked statements in this regard, see Guaman Poma 1992, 518–19; Vega 2002 [1609], 102. For similar conclusions regarding late-prehispanic and early-colonial Nahua households in Morelos, see McCaa 2003, 36. Salomon and Grosboll’s recent analysis of a 1588 tribute-roll inspection of the Huarochirí village of Sisicaya finds that ‘a stark contrast separated cultural schemata of gender symmetry from an organizational reality that was anything but symmetrical’ (2011).

15 Salomon and Niño-Murcia 2011.

16 I am not the first to highlight the protections afforded to Spanish women in civil law systems compared to common law ones, especially in colonial American contexts; see Chávez Leyva 1997; Korth and Flusche 1987; Rosen 2003.

17 See also, Para que a los yndios que se reduzieren, 1565. The exception are the 1574 ordinances for the Trujillo valley which set basic rules for the inheritance of moveable goods; see Espinoza Soriano 2004, 76. Viceroy Francisco de Toledo’s 1575 general ordinances similarly outlined inheritance rules with or without wills, but it is unclear whether they were applied or even if they were meant to apply to land. More importantly, the same ordinances tasked alcaldes (municipal judges) with deciding ‘pleitos de chácaras que usurpan unos indios a otros de los de su distrito,’ granting corregidores jurisdiction over certain ‘mixed’ cases involving ‘españoles, mestizos, mulatos, o negros’; see Toledo, 1989 [1575], 222, 230–32; 1989 [1580], 433–34. See also García de Castro 1921; Para que a los yndios que se reduzieren, 1565; Zevallos Quiñones 1944.

18 This mutually constitutive relationship, based on complementarity and antagonism, compatibilized long- and short-term interests, allowing households to meet subsistence needs—through cooperation—while maintaining and renewing the group’s resource base—through communal norms regulating land. See Brush and Guillet 1985, 20–26; Godoy 1990, 79–84; Guillet 1979, 76–78; Plaza J. and Francke 1981, 73–74.

19 See also Puente Luna 2021. In his recent overview of land tenure patterns in Mesoamerica, Alan Greer similarly presents collective land from the individual’s perspective (2017, 34–35, 114).

20 ‘Autos seguidos por doña Catalina,’ f. 34.

21 ‘Autos que Juan Agustín Vargas, indio tributario del pueblo de Carania en la provincia de Yauyos, siguió por sí y en nombre de los demás tributarios del ayllo San Felipe de Tatallanga,’ 1739, AGN, Superior Gobierno, 1, l. 27, c. 138, fs. 9r/v, 13r/v.

22 ‘Testamento de Joseph de la Cruz,’ 1713, AGN, Testamentos de Indios, 3.330. For more details, see Spalding 1984, 198.

23 For example, ‘Testamento de Don Juan Bautista Caxamuni,’ 1680. AGN, Derecho Indígena, 10.149, fs. 22v–25r, here 23r.

24 Illustrating this viewpoint but in the context of chiefly legitimacy, the principales of Huaraz declared in 1599 that one of the members of the ruling lineage ‘left no son or descendants, save for some women who are not listed here.’ ‘Don Fernando Marcapoma […] contra Don Diego Guaman Cocahchi y Alonso Yacharachin y Santiago Chacha Cochachin.’ Lilly Library, Indiana University, Bloomington, Latin American Manuscripts, Peru, box 4, f. 10r.

25 Of course, rural inheritance practices in early modern Spain were as diverse as Andean ones. Legal norms functioned as a frame of reference rather than a set of prescriptions; see Garrido Arce 1992.

26 Embracing such principles, Jerónimo Díaz, a native of the town of Huancayre (Huarochirí), declared in his will that his first cousin, Diego Caxamuni, had named him his heir. Though Diego’s sons and grandsons were enjoying the produce of the maize and potato fields, once the latter’s line became extinct, the plots were to pass onto Jerónimo’s own sons and grandsons. ‘Testamento de Jerónimo Díaz Ruypo Caxa,’ 1677. AGN, Derecho Indígena, 10.149, fs. 19v–22v, here 21r.

27 On the various aspects of sectoral fallowing that must come under communal control, see Brush and Guillet 1985, 26.

28 See Adams 1959, 13–18; Matos et al. 1958, 188–91, 282; Orlove and Godoy 1986.

29 ‘Autos que siguen don Francisco Aguilar y otros con don Pedro Ximenez y otros sobre el derecho de unas tierras y chacras,’ Lima, 1634–1723, Lilly Library, Indiana University, Bloomington, Latin American Manuscripts, Peru, box 5, fs. 76r–84v.

30 ‘Autos que siguen don Francisco Aguilar y otros,’ f. 78v.

31 While fathers, mothers, grandfathers, grandmothers, and other relatives are mentioned in Toledo’s ordinances as potential heirs, there is no overt mention of widows and widowers.

32 ‘Autos que siguió Juana Salazar […] contra María Suyo Colqui,’ 1683. AGN, Derecho Indígena, 10.149, fs. 8v–15v, 25v.

33 ‘Autos que siguen don Francisco Aguilar y otros,’ f. 79r.

34 ‘Autos que siguen don Francisco Aguilar y otros,’ fs. 79r–84.

35 Several descendants, all male tributaries, would object to the disentailment and sale of these assets by another male relative in 1709, alleging that they were ‘of the same tree, legitimate descendants of our grandfather [Don Sebastián Chosco Caxauarco].’ ‘Autos que siguen don Francisco Aguilar y otros,’ f. 66r/v.

36 ‘María Ticlla Saxa contra Magdalena Llaxsa Colque,’ fs. 5v–6r; Spalding 1984, 227. I thank Jimmy Martínez Céspedes for bringing this dossier to my attention. Ninavilca’s meddling in the case goes largely unexplained.

37 On 25 January 1642, upon being notified by the municipal scribe of the Audiencia’s decision to uphold the cabildo’s ruling, María replied, ‘que no las obedese la provicion y mandamiento y possesion.’ ‘María Ticlla Saxa contra Magdalena Llaxsa Colque,’ f. 16r. Juana Salazar, from Huancayre, was equally defiant to a corregidor’s order: upon being notified in her home, she simply shut the door and walked away. ‘Autos que siguió Juana Salazar […] contra María Suyo Colqui,’ f. 16v.

38 One of Magdalena’s witnesses explained that the eldest child of Magdalena’s grandfather had been a daughter, but that she had been skipped, with the family possessions going to Magdalena’s father instead.

39 ‘María Ticlla Saxa contra Magdalena Llaxsa Colque,’ fs. 7r, 8r. One of Magdalena’s witnesses called Diego and Magdalena’s joint patrimony, ‘como por su comun’ (f. 6v).

40 ‘María Ticlla Saxa contra Magdalena Llaxsa Colque,’ f. 5r/v.

41 The number of tracts, groves, and corrals that María controlled and were not directly tied to her late husband was substantial, leading us to wonder whether she was originally from a different, unnamed ayllu and her rights among her kin, probably in exchange for her labour, were still active.

42 For Mexico-Tenochtitlan, Kellogg similarly found that suits over the rights of widows to inherit houses and other property from their deceased husbands became a major source of litigation before the Audiencia during latter half of the sixteenth century; see Kellogg 1995, 57–58.

43 ‘María Ticlla Saxa contra Magdalena Llaxsa Colque,’ f. 42r/v.

44 ‘María Ticlla Saxa contra Magdalena Llaxsa Colque,’ fs. 37v–38r.

45 ‘María Ticlla Saxa contra Magdalena Llaxsa Colque,’ fs. 36v–39r.

46 The evidence is difficult to come across. In 1701, Antonia María Becerra filed a complaint against her cacique for the fraudulent sale of a house site (‘solar’) in her village of Santa Ana de Pampas (Tarma). Antonia had inherited it from her commoner mother, who had purchased it from another female commoner. ‘Autos de Antonia María Becerra, india de Tarma, contra José Calderón,’ Tarma, 1701, Derecho Indígena y Encomiendas, l. 134, doc. 57, fs. 13r–14v.

47 Juan Bautista Caxamuni, from Huancayre, bought female relatives out of his grandparents’ state. ‘Testamento de Don Juan Bautista Caxamuni,’ f. 25r.

48 ‘Autos que Juan Agustín Vargas … ,’ fs. 1r–7v.

49 ‘Autos que Juan Agustín Vargas … ,’ f. 41r.

50 ‘Autos que Juan Agustín Vargas … ,’ f. 11r/v.

51 ‘Autos que Juan Agustín Vargas … ,’ fs. 7r/v, 14r, 18r.

52 ‘Autos que Juan Agustín Vargas … ,’ fs. 1r/v, 7r/v, 14r, 18r.

53 ‘Autos seguidos por doña Catalina,’ fs. 16r–25v.

54 Other women from the region had started crafting wills at this time. One María Estefanía, from ayllu Tatallanga, dictated hers before Carania’s municipal scribe sometime in the late seventeenth century (the document is undated). Like other women mentioned in this essay, she possessed an impressive number of terraced fields (‘escalones’), which she left to her two sons. ‘Autos que Juan Agustín Vargas … ,’ fs. 35r–36r.

55 ‘Autos seguidos por doña Catalina,’ fs. 32v–34r. Isabel Suyo Colqui, from Huancayre, similarly left all her maize and potato fields to her mother and young daughter. Isabel’s husband only received five animals, three pieces of cloth, and some yarn. ‘Testamento de Isabel Suyo Colqui,’ 1623. AGN, Derecho Indígena, 10.149, fs. 7r–8v.

56 ‘Autos seguidos por doña Catalina,’ fs. 27r–28r.

57 ‘Autos seguidos por doña Catalina,’ fs. 23r/v, 27r/v.

58 ‘Autos seguidos por doña Catalina,’ fs. 37v–38r. Viceroy Toledo’s ordinances reinforced such claims by decreeing that children be affiliated with their father’s—not their mother’s—ayllu or parcialidad. The ordinance probably reflected widespread custom rather than an innovation (Toledo 1989 [1575], 255).

59 ‘Autos seguidos por doña Catalina,’ f. 34r.

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José Carlos de la Puente Luna

José Carlos de la Puente Luna is a professor of Latin American History and Director of Graduate Studies at Texas State University. He is the author of Los curacas hechiceros de Jauja: batallas mágicas y legales en el Perú colonial (2007) and Andean cosmopolitans: seeking justice and reward at the Spanish royal court (2018); he is also the coeditor of El taller de la idolatría: los manuscritos del jesuita Pablo José de Arriaga (2021). Long interested in Indigenous archival practices related to land tenure and customs of commoning, he is currently working on a book tentatively titled ‘Commoners: a history of colonial Andean commons.’