Scholars of colonialism have drawn attention to the link between litigation and ethnography. In nineteenth- and early twentieth-century Asia and Africa, European colonizers frequently tried to adjudicate local disputes according to conquered people’s own laws, which they therefore investigated and codified (creating much invented tradition in the process). This paper explores that link in sixteenth-century Spanish Peru, where, to a remarkable extent, recently conquered Andean people took their disputes to colonial courts. Spanish judges were supposed to decide intra-Andean disputes according to existing laws and customs but seldom actually tried to find out what those customs were. However, in cases where colonial elites were already interested in understanding specific indigenous institutions, litigation between rival Andean groups provided the context in which Spanish officials explored those institutions most profoundly.
As a case study, this paper examines the Spanish official Polo de Ondegardo and the Andean social category of mitmaqkuna or mitimaes, which were settlement enclaves created by the pre-Hispanic Inca state. Mitima networks undermined colonial policies of spatial clarity and social control but were legitimized by the prestige that the Incas’ memory carried in Andean society. They also appeared to be a basis for community prosperity in the bleak Andean highlands, a subject in which the Spanish conquerors, who depended on tribute from Andean communities, had a material stake. Through a series of lawsuits between indigenous parties, Spanish jurists—especially Ondegardo—developed explanations for this apparently alien social institution and integrated it into the colonial state.