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CHAPTER XII.

THE LAW.

§ 299. The law, which is the body of rules that the State endeavors directly or indirectly to enforce, may be properly classed as follows: 1. Personal law. 2. Property law. 3. Corporation law. 4. Government law. 5. International law. 6. Military law. 7. Religious law.

Crimes may be committed against personal law, property law, corporation law, government law, international law, military law, and religious law. So there are as many divisions of criminal law.

PERSONAL LAW.

§ 300. A large part of personal law belongs to gentile or family law. Certain degrees of consanguinity and affinity are considered as bars to intermarriage. The marriage of kindred has always been regarded as incestuous by the Omahas and kindred tribes. Affinities were forbidden to Self in certain places which are explained in the description of the kinship system and the marriage laws.

Marriage by elopement has been practiced, but marriage by capture or by duel are not known. (See § 82.)

Nage, quarreling and fighting.—It used to be a custom among the Omahas, when two men engaged in a fight, that he who gave the first blow was beaten by the native policemen.

T'ec̷ai, accidental killing, and "t'ekic̷ai," intentional killing or murder, are also crimes against religious law, which see in §§ 310, 311.

Witchcraft.—When the supposed victim has died and the offender has been detected his life may be taken by the kinsman of the victim without a trial before the assembly or any other tribunal.

Slavery was not known. Captives taken in war were not put to death. (See § 222.)

§ 301. SOCIAL VICES (a), Adultery.—Sometimes a man steals another man's wife. Sometimes he tempts her, but does not take her from her husband. The injured man may strike or kill the guilty man, he may hit the woman, or he may deprive the offending man of his property. If a woman's husband be guilty of adultery with another woman she may strike him or the guilty female in her anger, but she cannot claim damages. In some extreme cases, as recorded by Say, an inexorable man has been known to tie his frail partner firmly upon the earth in the prairie, and in this situation has she been compelled to submit to


  
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the embraces of twenty or thirty men successively; she is then abandoned. But this never happened when the woman had any immediate kindred, for if she had any such kindred in the tribe the husband would be afraid to punish his wife in that manner. A woman thus punished became an outcast; no one would marry her.

(b) Prostitution.—In 1879 there were only two or three women in the Omaha tribe that were known as miⁿckeda or public women. Of late years, according to La Flèche and Two Crows, there have been many miⁿckeda, but it was not so formerly, when the Indians were the only inhabitants. A father did not reprove his daughter if she was a miⁿckeda. He left that to her elder brother and her mother's brother, who might strike her with sticks. Sometimes, if very angry with her, they could shoot an arrow at her, and if they killed her, nobody could complain.

(c) Fornication.—This is not practiced as a rule, except with women or girls that are miⁿckeda. So strict are the Omahas about these matters, that a young girl or even a married women walking or riding alone, would be ruined in character, being liable to be taken for a miⁿckeda, and addressed as such. No woman can ride or walk with any man but her husband or some immediate kinsman. She generally gets some other woman to accompany her, unless her husband goes. Young men are forbidden to speak to girls, if they should meet two or more on the road, unless they are kindred. The writer was told of some immorality after some of the dances in which the women and girls participate. This has occurred recently; and does not apply to all the females present, but only to a few, and that not on all occasions. When girls go to see the dances their mothers accompany them; and husbands go with their wives. After the dance the women are taken home.

(d) Schoopanism, or paderastia.—A man or boy who suffered as a victim of this crime was called a miⁿ-quga, or hermaphrodite. La Flèche and Two Crows say that the miⁿ-quga is "gc̷aⁿc̷iⁿ," foolish, therefore he acts in that manner.

(e) Rape.—But one Omaha has a bad reputation in the tribe for having frequently been guilty of this crime. It is said that one day he met the daughter of Giaⁿze-c̷iñge, when she was about a mile from home, driving several ponies. He pulled her off her horse, and though she was not over seven or eight years old, he violated her. The same man was charged with having committed incest with his own mother.

§ 302. Maiming.—This never occurs except in two cases: First, by accident, as when two men wrestle, in sport, and an arm is broken by a blow from a bow or stick; secondly, when the policemen hit offenders with their whips, on the head, arms, or body; but this is a punishment and not a crime. La Flèche and Two Crows never heard of teeth being knocked out, noses broken, eyes injured, etc., as among white or colored men.

Slander is not punishable, as it is like the wind, being "waniajĭ," that is, unable to cause pain.

  
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PROPERTY LAW

§ 303. Public property, provisions, and stock are not known. Hence, there are no revenue laws.

(a) Tribal property.—Each tribe claimed a certain extent of territory as its own, for purposes of occupancy, cultivation, hunting, and fishing. But the right of a tribe to sell its land was something unheard of. Portions of the Omaha territory were sold because the people feared to refuse the white men. They consented just as a man would "consent" to hand his purse to a highway robber who demanded his money or his life. Land is enduring, even after the death of all of a generation of Omahas; for the men of the next generation succeed and dwell on the land. Land is like water and wind, "wéc̷iⁿwiⁿ-c̷i'á-wác̷ĕ," what cannot be sold. But horses, clothing, lodges, etc., soon perish, and these were the only things that they could give away, being personal property. The tribe had a common language, the right to engage together in the chase as well as in war, and in certain rites of a religious and civil character, which are described in connection with the hunting customs, etc.

(b) Gentile property.—Each gens had its special "wewaspe," such as the sacred pipes, chiefs, sacred tents, area in the tribal circle, etc. These "wewaspe" also belonged, in a measure, to the whole tribe. (See Gentile System, Chapter III.)

(c) Household property.—This consisted of the right of ocupancy of a common dwelling, the right of each person to shares of fish, game, etc., aquired by any member of the household. When game was killed, it belonged solely to the household of the slayer; members of any other household had no right to take any part, but the slayer of a buffalo or other large animal might give portions to those who aided him in cutting it up. (See §§ 147, 159.)

(d) Personal property.—When a father gave a horse or colt to his child, the latter was the sole owner, and could do what he wished with the property. Each head of a household held a possessory right to such a tract or tracts of land as the members of his family or household cultivated; and as long as the land was thus cultivated, his right to its enjoyment was recognized by the rest of the tribe. But he could not sell his part of the land. He also had a right to cultivate any unoccupied land, and add it to his own. The husband and wife who were at the head of the family or household, were the chief owners of the lodge, robes, etc. They were joint owners, for when the man wished to give away anything that could be spared he could not do so if his wife was unwilling. So, too, if the wife wished to give away what could be spared, she was unable to do it if her husband opposed her. Sometimes, when the man gave something without consulting his wife, and told her afterwards, she said nothing. The wife had control of all the food, and the man consulted her before he invited guests to a feast saying: "Ewéku kaⁿ'bc̷ă. Iⁿwiⁿ'hañ-ga." i.e., "I wish to invite them to a feast. Boil for me."

  
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Members of the same tribe occasionally exchanged commodities. This right was recognized by all. (See International Law, § 307.)

§ 304. Debtors.—When a man asked another to lend him anything, as a knife, kettle, &c., the owner would not refuse. When the borrower had finished using it, he returned it to the lender, for he would be ashamed to keep it as his own. There never was a case of refusal to return a borrowed article. If the use of the thing had impaired its value, the borrower always returned another article of the same kind which had to be in as good condition as the former was when it was borrowed. There was no pay or interest on the loan. Sometimes, when the borrower was a kinsman or friend of the lender, and he returned to the latter his property, the lender would say to him, "Keep it!"

§ 305. Order of inheritance.—First, the eldest son, who becomes the head of the household or family; then the other sons, who receive shares from their brother; if there are sisters of these, they receive for their eldest brother whatever he thinks that they should have. Should the deceased leave no children, his kindred inherit in the following order: His elder brother, younger brothers, sisters, mothers' brothers, and sisters' sons. The widow receives nothing, unless she has grown sons of her own, who can protect her. The husband's kindred and the widow's step-sons generally deprive her of all the property, because they fear lest she should go elsewhere and marry.

§ 306. Crime agains property law: Theft.—When the suspected thief did not confess his offense, some of his property was taken from him until he told the truth. When he restored what he had stolen, one-half of his own property was returned to him, and the rest was given to the man from whom he had stolen. Sometimes all of the policemen whipped the thief. But when the thief fled from the tribe, and remained away for a year or two, the offense was not remembered on his return; so no punishment ensued.

CORPORATION LAW

(See Societies, in Chapter X.)

GOVERNMENT LAW

(See the preceding chapter.) The crimes against government law were violations of the rules of the buffalo hunt, quarreling, and fighting. The violations of the rules of the buffalo hunt were also regarded as crimes against religious law.

  
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INTERNATIONAL LAW.

(See War Customs, Military Law, and Visiting Customs.)

§ 307. Mode of making peace with another tribe.—When the Omahas wished to make peace, which was termed, "making the land good," two or more chiefs and some of the young men took one of the sacred pipes and went unarmed towards the village or camp of the late foe, taking care to go openly and in daylight, when their approach could be seen. They were met by some of the villagers, who conducted them to a lodge, where food was given them. After the meal, they were asked to tell the object of their visit. The leader of the visitors then said, "I have come because I think that we should fight no longer. I have come that we may eat and smoke together." The principal man of the village then replied, "It is good! If you tell the truth, when you come again, we will give a horse to each one of you." At this time, no presents were made by either party. They remained together two, three, or four days, and left for home when their leader decided to depart. The bearer of a peace pipe was generally respected by the enemy, just as the bearer of a flag of truce is regarded by the laws of war among the so-called civilized nations.

When strangers came to visit the Omahas, or when the latter visited another tribe, presents were given by both parties, generally consisting of horses and robes. But there was no commerce, as we understand that term.

MILITARY LAW.

(See the preceding paragraphs, and War Customs.)

§ 308. The rules of the buffalo hunt, the consecration of the hearts and tongues, the ceremonies pertaining to the anointing of the sacred pole, etc., and those connected with the planting of the corn, were customs which were regarded as laws received by their ancestors from Wakanda; hence, they pertained to religion as well as to the government of the tribe. (See §§ 128-163.)

§ 309. The following are of a religious character: The worship of the thunder, when first heard in the spring (§ 24), and when the men go to war (§ 196); the style of wearing the hair in childhood (§ 30, etc.); most of the governmental instrumentalities enumerated in Chapter XI, and non-intercourse with a woman during her catamenial seclusion (§ 97).

  
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The Omahas were afraid to abandon their aged on the prairie when away from their permanent villages lest Wakanda should punish them.

The most common offenses against religious law were murder and accidental killing.

§ 310. Murder.—Murder of a fellow Omaha has been of rare occurrence. Drunkenness alone has caused two men to kill each other in a few cases; but owing to it there have been more instances of murder and manslaughter. Before liquor was introduced there were no murders, even when men quarreled. The murder of a fellow clansman was unknown, except in a few cases of parricide, caused by drunkenness. Parents never killed their children. About thirty-two years ago a man killed his uncle to avenge the murder of another uncle by a drunken son. Over sixty years ago a Ponka married an Omaha woman, and remained with her tribe. His mother-in-law was a very bad old woman, so he killed her. No Omaha ever killed an affinity.

Murder might be punished by taking the life of the murderer, or that of one of his clansmen. When one man killed another, the kinsmen of the murdered man wished to avenge his death, but the chiefs and brave men usually interposed. Sometimes they showed one of the sacred pipes; but they always took presents, and begged the kinsmen to let the offender live. Sometimes the kinsmen of the murderer went alone to meet the avengers; sometimes they took with them the chiefs and brave men; sometimes the chiefs, braves, and generous men went without the kinsmen of the murderer. Sometimes the avengers refused to receive the presents, and killed the murderer. Even when one of them was willing to receive them, it was in vain if the others refused.

When the life of the murderer was spared, he was obliged to submit to punishment from two to four years. He must walk barefoot. He could eat no warm food; he could not raise his voice; nor could he look around. He was compelled to pull his robe around him, and to have it tied at the neck, even in warm weather; he could not let it hang loosely or fly open. He could not move his hands about, but was obliged to keep them close to his body. He could not comb his hair; and it must not be blown about by the wind. He was obliged to pitch his tent about a quarter of a mile from the rest of the tribe when they were going on the hunt lest the ghost of his victim should raise a high wind, which might cause damage. Only one of his kindred was allowed to remain with him at his tent. No one wished to eat with him, for they said, "If we eat with him whom Wakanda hates, for his crime, Wakanda will hate us." Sometimes he wandered at night, crying and lamenting his offense. At the end of the designated period, the kindred of the murdered man heard his crying and said, "It is enough. Begone, and walk among the crowd. Put on moccasins and wear a good robe." Should a man get a bad reputation on account of being quarrelsome, his gens might refuse to defend him. Even if the kindred were sad when he


  
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was slain, they would say nothing, and no one tried to avenge him. The murder of a child was as great a crime as the murder of a chief, a brave, or a woman. There was no distinction in the price to be paid.

Should the criminal escape to another tribe, and be absent for a year or two, his crime would be remembered on his return, and he would be in danger.

§ 311. Accidental killing.—When one man killed another accidentally, he was rescued by the interposition of the chiefs, and subsequently was punished as if he were a murderer, but only for a year or two.

§ 312. Profanity.—Cursing and swearing were unknown before the white men introduced them. Not one of the C̸egiha dialects contains an oath. The Omahas are very careful not to use names which they regard as sacred on ordinary occasions; and no one dares to sing sacred songs except the chiefs and old men at the proper times.

§ 313. Drunkenness became a crime, because it often led to murders; so the Omaha policemen determined to punish each offender. Each one of the ten gave him several blows with a whip, and the drunkard's annuity for that year was taken from him. In 1854 this vice was broken up, and since then there has been no instance of its occurrence among the Omahas.²²

§ 314. Falsehood.—In 1879 Standing Hawk and a few others were noted for this vice; but in 1882 La Flèche said that there were many who had lost all regard for the truth. Formerly, only two or three were notorious liars; but now, there are about twenty who do not lie. Scouts were expected to speak the truth when they returned to report to the directors, the keepers of the sacred tents, etc. (See §§23, 136, and 137.) Warriors were obliged to undergo the ordeal of the wastegistu (Usage, watse-ʞistu), before receiving the rewards of bravery. If one told a lie, he was detected, as the Indians believed that the stick always fell from the sacred bag in such a case. (See § 214.)

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