Student Thesis Honors (1996-2008) School of Law
6-1-2004
Intertribal Conflicts and Customary Law Regimes in North Africa: A Comparison of Haratine and Ait 'Atta Indigenous Legal Systems
Anna Martinez University of New Mexico
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#10 lntertribal Conflicts and CustomaryLaw Regimes in NorthAfrica: A Comparison ofHaratine and Ait 'Atta Indigenous LegalSystems
�001 or Lllw ua,a-. Ths Universityof""- Maioco 1117 Stanford DtJwj, N.E. Albuoueroue. New,,,,__ B7131- ,.u, [A} study ofcultural politics is a study of the politics ofrhe production ofcultural explanations that are used in the academy. outside the academy, in global politics, in metropolitan politics, in nationalpolitics of various kinds, migrant politics of various kinds, articulations of majority and minority, domination/ exploitation. a very wide field of managing various kinds of crises that are coming · up in order to give people who act within these crises a certain way ofdescribing what the position is. Gayatri Chakravorty Spivak'
The Haratin people of North Africa, are subjects in crisis, they are people whose origins are debated, and whose social status is scorned. As an indigenous population in the midst of regional turmoil, they have been subject to removal, forced labor, and economic deprivation.
Their exploitation by both French colonial forces and other indigenous populations has displaced the Haratin way oflife and has subsumed their legal culture. This paper explores the difficulties of identifying indigenous legal systems where a population has been deprived of their land base and has been subjected to the legal system of outsiders - who are also indigenous. In this marginal space, benvixt the layers of oppressors, colonizers, and simultaneously other colonized and oppressed, I attempt to shed light upon the emerging Haratin legal system. Rather than focusing on the most visible aspects of a legal system that traditionally privileges fonnal institutions and structures, this paper examines the Haratin legal system at a very local level, privileging instead, informality, and common customs or practices found in everyday living that dictates manners and ethics, the foundation of any legal system.
Although the Haratin live throughout North Africa, this paper focuses specifically upon the Haratin of the Tafilalt Oasis region of southern Morocco. Section one is devoted to the social history of the Haratin in order to 'locate' their position in modern Moroccan society. In particular, this section examines the multi-dimensional aspects of their identity, including the
1 PhjJip Sipiora & Janet Atwill, Rhetoric and Culrurnl ExplanaJion: A Discussion with Gaya1ri Clwkravorry Spivak, I 0.2 JAC 1990, nvnilnble nrhttp://www.16bc:avergroup.org/mtarchivl'/archives/0002R4print.ht.ml.
Page 1 of 32 process of naming, and the exclusion of their indigenous identity by the majorityof Moroccans.
This section also scrutinizes the affect of race and class on the formation of Haratin identity.
Section II discusses the Ait 'AttaBerber tribe's customary law and their political relationship
with the local Arab Shurfas. Particular attention is paid to landtenure laws of the Berber tribes
from pre-French Protectorate, through occupation, to post-colonial state. An examination of
'Atta governance focuses on pre-protectorate through 1956, the seminal year in Moroccan history that ended the formal protectoraterelationship with France. Section III focuses on the
Haratin formation and expression of their internal customary law. [ attempt to identify a space where Haratin people create their own laws and customs outside the reaches of the dominant
Berber and Arab populations. Land regulation and production, labor management, and ecological knowledge are discussed. Section N concludes with a reflection on theories and lenses of analysis presented and their meaning in writing as an outsider about internal law.
I. Haratin Identity A. On Naming and Meaning Haratin identity, forged largelyby empowered outsiders, revolves primarily around stereotypes stemming from racial, ethnic, and class prejudices. Perhaps the most controversial of the many meanings and identities that the Haratin invoke is that of indigenous peoples. In a place where Berber tribes dominate the Moroccan image of tribalpeoples, the Haratin history and sedentary way of life seems contradictory to an indigenous identity. While peeling away the layers of meaning that comprise Haratin identity, the core position of this paper firmly recognizes that they are indeed indigenous, and moves to examine then, the consequences of such labels for these members of rural Moroccan communities.
Jn the southern oasis region of Morocco, the Haratin are a distinct caste at the bottom of a social hierarchy composed of landowning Arab religious specialists known as Shur/a,
Page 2 of 32 transhumantindig enous populations, specifically the Ait 'AttaBe rber tribe,and slave
descendents knownas the Ismkhan.2 The Haratin peopleare subj ectto discrimination by these
other groups, in particularbe cause of theirper ceived lack of clearorigin s and ambiguousrac ial
identity. Thisdis criminationmani fests itself forinstan ce, in the nameHar atin, the etymology of
which is debated by scholars. Some scholarshave adoptedthe opinion that Har atin is an Arabic
tenn3 while others insist thatthe word is more than likely Berber in origin. Prof.Chouki El
Hamelnotes that the Berber word ahardan, meaning'dar k color', is theear liest known use of the
tenn,d ating back to thethirtee nth century, andtha t its use in some regions of Morocco to
designate darkski nnedpe rsonsis contrastedwith the word forwhite skinne d persons-
Amazigh, 4 that is also the word one group of Berber peopleuse to self-identify. He also found
instances of Arab-speakingpersons using the term to mean'e nslaved blacks' and historically in
Mauritaniato referto freed black slaves.5
The term Haratin is similarly usedto designatea specificgroup of dark-skinned
agriculturalistsand peasa nts.6 There are fewand scanty references to the Haratin in the literature
of Morocco, and where they arementi oned, it is usually only in their relation as laborers forth e
Ait 'Atta Berber tribe, a popularfocus of ethnographers and anthropologists. TheHara tin's
l REMCOENSEL, SA INTS ANO SERVANTSIN SOUTHERN MOROCCO 3 (1999). Ensel wrote this book as a revision to hisPh.D. at the University of Amsterdam. His primarybas e of research was in the Draa River Valley of Morocco, with special focuson the Haratine peoples, conducted from 1993�94. 3 Hsain llahiane,The Power of theDa gger. the Seeds of the Korao.and the Sweat of the Ploughman: Ethnic Slratification and Agricultural Intensificationin the ZizVall ey, Southeast Morocco J 07 n.7 ( 1998) (unpublished dissertation, Universityof Arizona) (on file withthe University of New Mexico LawLibr ary). Noring that the word has roots in the Arabic verb haratha, to planl,and also hor thani, meaning free people. Ilahiane is currently teaching at theUnive rsity of Iowa andis revising rusPh.D . forpu blication. Jlahiane is fromMor occo and based his research primarilyin the state ofErrachidia, whichencompa sses the Tafilaltoasis region. His acknowledgements include 'Am.id Chad who taught llabiane about localMor occan and French history (of the oasis) froma Haratin pointof view. ' Chou\oEl Hamel, 'Race '. Slavery and Islam in the Maghribi Mediterranean Th ought: 111e Question of the Hnratin i11 Morocco, THE JOURNALOF NORTH AFRICAN STUDIES,Vol.7, No.3 at 29, 38 (Autumn 2002). Prof. El Hamel wrote this article duri ng his te nure al the SchomburgCe nter forRe search in Black Culturein New York City. He is currently a professor of Islamichis toryat ArizonaSt ate University. s Id. at 39. 6 ENSEL supra no1e 2. at 3.
Page 3 of32 marginality is figuratively emphasized when theyare mentioned in brief passageso r footnotes.
For instance, in a book about Arabs and Berbers in Morocco, a col_lection of several authors, the
Haratin are describedas follows:
The originof the haratin class is still a subject of debate, but they are generally believedto be the descendentsof black, immigrant slaves who intermarriedwith the Berber population. Most had darkskin an d negroid fe atures ...almost all of themwo rkedas khammas laborers forthe whit e Arabs or Berbers,recei ving for their toil a fifth or less o f the harvests.''7
In another work, an author notes in a parenthetical reference that "it is axiomatic that in Morocco
before 1912 'rural' and 'tribal'we re one andthe s ame, except forthe negroid cultivators, known
as Haratin, in the Saharan oases who are probably not tribally organized.',a The sameauthor
reconfirmsthe agriculture identityof the Haratin, de-emphasizing theirindi genous quality:"The
Haratin . . . are a very old, negroidand non-tribalp opulation ... [t]hey aresede ntary
agriculturalists, well-diggers and date cultivators, and theyare perhaps the most numerous single
element of the population in the MoroccanDeep South."9 Despite their majority, they remain
marginalized in majoritarianpol itics andtex ts.
The reference of Haratin identity in connection with labor, in particular agriculture, is a product of both a colonial past, as well as one of subjugation of the Haratin and their lands by
other indigenous groups. The obfuscation of the historyof slaverypr acticed by indigenous tribes
in Morocco simultaneously dis/locates the Haratin people in the popular national imagination.
Dominantgro ups, who live among the Haratin, have succeededin displacing the Haratin's origins outside of Morocco based on race, thus 'un-indigenizing' them from the region. This
1 Ross E. Dunn, Berber Imperialism: the Ail Alla Expansion in SoutheastMoro cco. in ARABSAND BERBERS, FROM TRlBETO NATION IN NORTH AFRICA 95 (Ernest Gellner & Charles Micaud eds., 1972). Theeditors of the book compiledv arious works on NorthAfri ca to explore the "significanceof ethnicityin the process of nationbuilding [sic] andmode rnization in NorthAfrica," and was madepo ssible withhe lp fromthe Cen1er forIn ternational Race Relations. Id. at I. a David Hart, Th e Tribe i11 Modern Morocco: two case studies. in ARABS AND BERBERS,supra note 7, at 53 'herei.naflerHart. Tri be in Modern Morocco]. Id.
Page 4 of 32 prejudiced perception of the Haratin's origins is passed on to Europeane thnographers and
anthropologists,and later expressedin academic literature about Morocco.
The referencest o slavery further complicate an understandingof Haratinide ntity. The
silence surroundingslave ryprac ticed by Muslims throughout NorthAfri ca and Europe during
the heightof the Islanucconquest of theMed iterraneanmake s it more difficultto explore fully
exactly why the Haratinare assoc iatedwith descendants of freedSud anesesla ves. This silence -
"the refusalto engage in discussions on slaveryand raci al attitudes" in Islam,"r eflects an
embarrassment feltco llectively throughoutthe centuries." 10 Duringthe de cline of theIslamic
empire in nonhernEuro pe, the slave trade movedto sub-Saharan Africa. Thiswas pr oblematic
as thisregi on had long beenconq ueredby Islamand the rel igiousstatus of thepe ople as 1 Muslims was overlooked or ignored as a bar to their enslavement according to Islamiclaw. 1
Severalthousands of thesesl aves pouredout of the Sudan region from Morocco and were
exported throughoutNorth Africa. 1 2 In Morocco, the patternsof slaverywere varied according
to the needs of purchasers in cities versus rural areas. In urbandwelling s, slaveswer e predominately women who performeddomes tic servicesor were concubines to the wealthy, while ruralsl aves in the oasis were predom.inately male, andwor ked in agriculture.13 When these slaves were manumitted, their status alteredthe working relationship between the former slave owningfam ily and the freed slave, often resulting in another typeof client relationship.
There is an importantdis tinction however, between the Haratin and freed slaves, for"th e haratin
10 El Hamel, supra note 4, at 29. 11 Id. at 37. El Hamel cites a letter from thepe ople ofTuwat in present-day Algeriato a scholar inTimbuk tu requesting h.is opinionabout the enslavement of freebla ck AfricanMus lims,to which he responded was an unlawful act andthe burden of proof to thecontrary (that th e person was 'eligible' forenslavem ent) rested with thosewho bought andsol d the slaves. 12 JohnWright, Mor occo: TheI.Ast Great Slave Market?, JOURNAL OF NORTHAFRI CAN STUDIES,Vol. 7, No. 3 at 53, 55 (Autumn20 02) . . 1> CynthiaBecker. 'We are Real Sla ves. Real lsmkhnn ·: Memories of the Trans-Saharan Slave Trade in the Tafilaler o/ S011tli-£as1ern Morocco, JOURNALOF NORTIIAP RICAN STUDIES,Vol. 7. No. 4 at 97, 98 (Winter 2002).
Page 5 of 32 were not freed slaves ...rather, they were free from the beginning." 1 4 Prof. El Hamelsupports thenot ion thatthe Haratin were indigenous to theDra Valley since time immemorial,wit h evidence from oral traditions of the Tata region, and the historyof invading Berber tribes from northern Morocco and eastern NorthAfrica int o the oasiswher e they dominated Haratin lands, assuming the role of landowner over thelocal Haratin.15 Thereremai ns some dispute about the historical statusof Haratinas slaves, nonetheless,it is partof their identity.
An importantdi fference between the Haratin laborers and descendants of freed slaves is thatof social incorporation andmob ility afforded to manumitted slaves. Whereas freedslaves were considered freed people with rights,the Haratin toiled as laborersand did not have the opportunityto mobilize theirsoc ial status throughmanum ission. The Haratin were subject to the
Berber by conquest of their lands, thereafterthey engaged in an economic relationship with the
Berbers that amounted to indentured servitude andpeon age. This unregulated, unilateral relationship, created through oppressive circumstances, and practically inescapable was the source of a new trajectory in Haratin history that led to the widespread dispossession of their land.
In modem times, it is generally undisputed that the word Haratin itself also remainsa pejorative term. 16 The Haratin use several alternative terms then to self-identify. For instance, in the Draa Valley, they prefer the termda r-i, (plural dar ·awi) meaning natives of the Draa
Valley. 1 7 Other Haratin choose to take the name of the place they live, such as the Ait Ora, Ait
Tidgha, andAit Dads, 18 adopting the Berber designator "Ait", meaning'p eople of. • 19 Using the
1 4 El Hamel, supra note 4, at 39. IS Jd. 16 ENSEL,supra note 2, at 2. 17 MOHAMMED ENNAJI, SERVTNGTHE MASTER: SLAVERYAND SOCIETY INNINE TEENTH-CENTURYMOROC CO 62 (SethGraebner, trans., St. Manin'sPr ess19 98) ( 1994). "They claim precedence as the valley's fi�tinhabitanlS and say that the whites, originally nomads, c.1me later 10 abuse rbeir hospitality and treatthem as slaves." ltl. " Han, Tr ibe i11 Modem Morocco, supra note 8. at 5).
Page 6 of32 Berber formof social identificationserv es as an act of resistance to the outside designation of what and who the Haratin are perceivedto be: outsiders, non-tribal, andwi thout origin.
B. ConceptualizingInd igenous Identity Thedeba te surrounding the originsof the Haratin andthei r status as indigenous peoples is clouded by theirtrad itional occupation as agriculturallaborers forBer ber landown ers whose traditional tribal way of life dominatesthe Moroccan imagination of who tribalor indigenous people are. Locating theHarat in peoplesin an indigenous versus tribal context illuminates the difficulties of international and cross-cultural "indigenous/tribal literacy''.20 Exploringthis aspect of Haratin identityinterr ogates traditional models of understandingtri bes as independent, isolated communities thus, highlightingthe interdependency of indigenous groups like the local
Berber tribes upon the Haratin. I emphasize the tenn indigenous and privilege its use as "[i]t has also been an umbrella enabling communities and peoples to come together, transcending their own colonized contexts and experiences, in order to learn. share, plan, organize andstru ggle
"2 1 collectively forse lf-determination on the global and local stages.
The Haratin fallsq uarely within the spectrumof the tribal - indigenous - ethnicmin ority debate. The labels areim portantbecause they each determine recognized individual and/or
1 � ERNESTGELL NER. SAINTSOF THE ATLAS 36 ( 1969). "Theaffi liation of a Berber to a social group is generally expressed in termsof bis alleged patrilineal descent ... [s]ocial groups in Berber societyge nerally havethe name AitX. Xis usual ly, but nor always. the name ofa person,such as Brahimor Mhand . . . 'Ait' cao however also be combined witha place name,to designate the inhabitants oftbe place: forinstan ce, Ait Tal.mest, thep eople of Talmest." Id. Gellner is considered an eminentIslamic sch olar and Moroccan specialist based out of London. He was an anthropologist in Morocco andfocused es pecially on the segmentarysy stem of social organization among theAtlas Berbers. His work in thisarea however, hasbee n disputed by other scholars. See HenryMun son Jr, Segmentation: Realityor My th ?, 1 JOURNAL OF THEROYAL ANTHROPOLOGICAL INSTITUTE 829 ( 1995). 20 ChristineZuni Cruz & Margaret E. AlaridMon toya, A Narrative Braid Examining Racial Literacy6 (Dec. 2003) (unpublishedpaper, on file withthe au thors at the U. of New Mexico SOL). I use the term 'tribal literacy' as an adaptation of Margaret Montoya's theoryof racial literacy to convey how we 'read· tribaland indigenous identity. 21 LINDA TUHlWA I SMITH, DECOLONIZfNGME THODOLOGIESRESE ARCH AND lNDIGENOlJS PEOPLES 7 (5thed., 2002). Tuh.iwaiSm ith is an Associate Professor in Education and Director of theIn ternational Research lnstitutefor Maori and Indigenous Education at the Universityof Auckland, New Zealand. She theorizesde-co lonial stTategiesfor res�arch on indigenouspe oples usingher ownba ckground as a Maoriand her educational background in European epistemology.
Page 7 of 32 collective human rights. Moreover, considering the Haratin against these labels will interrogate
and destabilize their traditional meanings.
Although a strong emphasis is made on historical chronology of human migration in
order to differentiate between tribal and indigenous peoples, "it is a typeof unjust social
relationship ...that creates the 'indigenousness' that many now seek to protect via an
22 international regime. " It is the condition of indigenous and tribalpe oples as exploited,
23 politically andcultur ally dominated and subjected that is at the heart of the term indigenous.
This understanding of tribal/indigenous peopleswas lar gely conceivedat theinterna tional forum
of theUnited Nations (U.N.). Although the U.N. created the WorkingGro up on Indigenous
24 Popu1ations (WGIP),it hasnot formally defined theterrn indigenous. However, one useful and
comprehensive definition wasoff ered by Jose R. Martinez Cobo, a Spe.cialRappo rteurap pointed
in 1971 by the WGIP:
Indigenous communities,peo ples and nations are those which, having a historical continuity withpr e-invasion and pre-colonial societies that developed on their territories, consider themselves distinct from other sectors of societies now prevailing in those territories or parts of them. They form at present non-dominantsect ors ofso ciety andare determined to preserve,de velop and transmit to future generations their ancestral territories, andth eir ethnic identity, as the basis of their continued existence as peoples, in accordancewith their own cultural patterns, social 25 institutions and legal systems. (emphasis added)
Similarly, the U.N. has dealt with minorities, althoughin the context of European ethnic strife. The U.N. defines a minority group as one "dominated in factas well as in numbers, and
26 that exhibits a distinct identity, which it wishes to preserve,implic itly or otherwise.'' However, the U.N. 's Declaration on the Rights ofPe rsons Belonging to a National or Ethnic, Religious
Z? MAIVANCLE CH LAM, AT THE EDGEOF THE ST Ale: INDIGENOUS PEOPLESAND SELF-DETERMINATION 3 (2000). 2J Id. at 3 - 4. 14 Id.al 6 . . 2.1 Id. at 7. 26 Id. at 5-6.
Page 8of32 and Linguistic Minorities, did not attempt to guarantee any rightsto territory.27 Minoritygr oups are distinguishedfro m indigenous peoples on the basisof their anachmennoa specificterri tory, and further, their insistence on the reproduction of their communities.28 Where minoritygroups tend to integrate or assimilate into a dominantsociety, reproduction of their culture tends not to be asmarked as it is with indigenous peoplessince their assuranceof that reproduction is in their place of origin.29
Fitting the Haratinin to this classification scheme requires a reconsiderationof these definitions. The U.N. andCo bo's definitionof indigenous peoplesassumes a sense of autonomy or agency of thenat ive groupwhos e territory is under theirco ntrol(or at least once was).
Further,the definitions underscore a collective consciousness as distinct peoples witha clear historical or mythical ori gin that develops a cohesive group identity. The definition of minority groups has a simi Jarunder lyingassum ption, but places the origins of these groups in a recognizable 'place' that is under the control of that particulargro up, empowered to reproduce culture there as opposed to the site of their relocation.
The Haratin's situationseems to collapse these definitions. While the Haratin origins are perceived to be 'unclear'the y are connected to the Tafilaltoasis in southernMo rocco through centuries of agriculturallabor. Andal though the oasis region has traditionally not been under
Haratin political control, it hasbe en cultivated by them., makingthe ir connection to this area more real than mere political domination. Prejudice keeps the Haratin segregated and unassimilatedunlik e how other minority groups tend to assimilate and integrate. Because there is no assurance of reproduction in their placeof origin,the Haratin must maintain their connection to their distinct culture. Ultimately, the Haratin retain manyfeat ures of an
2 ; LAM. supra note 22, at 6. 21 Id.at 9. 29 Id.
Page 9 of 32 indigenous population who display"significant hi storical attachment to territory,''speci fically the oasis region, maintain a "commitment to culture distinctiveness_," and are beginningto preserve their"terri toryand cu lture as a means of reproducing a singularethnic community. "30
In an attemptto deploya discourseof indigenism that incorporates the historicalexpe riencesof the Haratin- an economically exploitedclass, ra cially discriminatedagai nst,and landless, the tenns used to label them must be modified to include a variety of experiences of subjugation and differentiation.31
Without a doubt,the Hara tin's historicaloccup ation of theoasis re gion in southern
Morocco, along with their social isolation in their respective communities, andthei r own assertion of autonomy, all support theconc lusion thatthe Haratin are an indigenous group.
Althoughnot triballyorgani zed like the local Berber tribeswho maintain intricateki nship ties, they do maintaina significantrela tionship with a specificterri tory, andeven as urban minorities in northern Moroccancities, their connection to their homeland is reinforced by migration patternsthat usually end back at their homelandsin southern Morocco.
C. Qsar Living and the Creation of Castes Unlike theirBerber counterparts, Haratin peoples are not tribally organized. Rather, they form"smal l pockets of endogamouspopula tion groups, even isolated families or individuals . . . " and "[o)ut of necessity they live as dependants in the proximity of other population groups."32
This social organization results from the historyo f oasis living in adobe walled settlements
JO Id. Ji Id. at 11. ··1nthe final analysjs, the categories"in digenous··. "tribal"', and "minority", like theirre ferents, are nol iron-clad but overlap, and sometimes even merge, when the conditions thattheir member s experienceco nverge:· Id. 2 ' ENSEL. st1pra nole 2, al 3.
Page JO of 32 calledqsar- s.33 These village-t'ype dwellings providedaut onomous agricultural outposts dotting
the oasis landscape and were dominatedin the l 7th and l 8 th centuriesby the ArabShur fa and
Murabitin, andthen in the 19th centuryby the encroachingA.it 'A tta tribe.34 In this context of
shiftingpo litical power, the .fragmentation of the Haratin acrossthe oases re gion is a natural
consequence. 35
Since the invasion of theirlan ds, the Haratin have been constrained to a low status as
sharecroppers by the Araband Berber nobility throughtheir monopoly of land ownershipand
legal restrictions on alienation of such property, as well as their ethnic/racial discrimination
against the Haratin.36 The Haratin's incorporation into the qsar economy as laborers was
exasperated when the Ait'A tta Berber tribe pushed into theTafi lalt oasis and the Draa Valley,
competingwith other tri bes forval uable access to water andpastur e lands. The Ait 'Atta entered
a ra 'aya or protectionre lationship with the Haratin and Arabs,pr omising protection from other
raidingtrib es in exchangefor a large portionof the harvest, water, and grazing lands.37 This
relationship established termsof conquest, andthe people of theqsa r were not al lowedto retain
their propertyrig hts. In fact, the 'Ana invaded many qsar-s andseized their palm groves,
gardens, and grain fields, leaving the local population landless. The Haratin in many qsar-s were
leftto do the fieldwork forthe new 'Atta lords - as they abhorred sedentaryact ivity, and in
exchangethe Haratin received a portiono f the harvest rather than wages.38 Individual Haratin
families oftenmov ed with their landowners and lived among them as workers. This semi contractual relationshipwas formalized in a ritual called dabiha, where a Hartaniwou ld sacrifice ll llah.iane. supra note 3, al 112. 34 Id. at 94. " TUHIWAI SMITH, supra note 21, at 28. l<> HsainJla h.iane,Glo bnlization ;s a Good Thing: "French Colonial Opportunities " and the Rise of the Horatine in Mo rocco, 12 TRANSNAT'L L. & CONTEMP. PROSS. 112 (2002) (hereinafterllah iane. Globalization]. 16 Ilahianc,supra note 3, at 95. n Dunn,supra note 7, at 93. JS ld. at 96.
Page JJ of32 3 a sheep to thelan downingfami ly. 9 The Haratin becamedependent on the land owning class for their survival andprote ction, constituting a large reserveof migrating marginal peasantsin searchof work, a substitution for land, whichwould ensurethem security. 40
Similarly, the Shurfaand Mrabi tin were also subject to 'Atta ruleand lo st their political control of the oasise stablished duringth e 17m and l 8th centuries. Different from the Haratin however, these Arab populationsma intaineda position of power. The Shurfain the Tafilalt oasisreg ion, are thought to be descendents ofthe Prophet Muhammad via the }jneage of the foW1ding Arabdynas ties in Morocco.41 Th.is lineage affords them manypri vileges but more important, it is the main reason forth eir reveredsoci al status. The Murabitin are self-proclaimed descendantsof local saints or holy men and are responsible for the care and upkeepof the
Zawiya or shrineof theiranc estor, as well as the distributionof gjfts of money or other goods donated by the saint's followers. 42 These twodo minatingsedent ary populations of the Moroccan oasisare rev ered not only forthei r religiosity, but also for their possession of baraka,or divine blessing that enabled these groups to serve as intennediaries andar bitrators forl ocal tribal disputes amongthe various sub-tribesof the Ait • Atta, a major Berber tribal confederation. 43
Like the Haratine, theyals o established qsar-s, primarilybegan as religioussan ctuaries and lodges that over time, becamece nters of stabilityan d safety while tribes battled one another for control of grazingterri tory in theregi on.
The Berber tribe's political dominance and militaryp ower enabled them to maintain a high status and position of dominanceove r the local populations of Shur fa, Murabitin and
9 } Id. at 96. 40 Ensel, supra note 2, at 148 and 81. 41 llahiane, supra note 3 , at I 08. 4 2 Id. 43 GELLNER, s11pra note 19, at 75.
Page /2 of 32 Haratin.44 The Shurfa and the Murabitin meanwhile,main tained their elite status by continuing
45 their relationship withthe encroaching Berber tribes as peace�brokers - a position they held
4 since the early seventeenth century. 6 Without landor religiouspr estige, the Haratin were relegated to the bottomo f theo asissocial hierarchy and their role as laborers forali en landowners drove them deeper into debt, poverty, and ultimately political disernpowerment.
D. Indigenous and Tribal minoritiesin Conflict
The subjection of theHar atin by anotherind igenous group unmasksthe previously noted contentions between Haratin, Berbers,and Arab s, especially in terms of the dominant perception ofHaratin as "outsiders" despite recognition of thefact th at they areperhaps the oldest indigenous group in southern Morocco.47 The di fficulty of understandingthi s practice of one colonized groupsu bordinating anotheris however, a "pivot point"48 where identity andracial privilege come to the surface. 49 Indeedthis situa tion invertsthe commonly noted shared experienceof indigenous peoples as "peoples who have been subjected to the colonization of their lands and cultures, andth e denialof their sovereignty,by a colonizing society that has come
44 Ilahiane,Globali zation, supra note 36, at I 09, 112 . ,s llabiane, supra note 3, at 95. 46 Id. at 94. 47 Hart. Tribe in Modern Morocco, supra note 8, at 53. 48 Zuni Cruz& Montoya, supra note 20, at 3. Profs. Margaret Montoya & Christine Zuni-Cruz,pre sented theirdra ft beforesrud ents at Univ. of New MexicoSOL , November 4, 2003. The presentation by these twopro fessors foUowed that of the New Mexico State Historian,Ern esto Rael-Galvez exploring indigenous slavery and peonage m New Mexico by the Spanish and Mestizo colonizers. Their presentation explored elements of race and inter-racial communication and literacy. Montoya's research is based pri marilyin CriticalRace Theory;Zu ni-Cruz'scholarship is focusedon FederalIn dian La w and internal tribalcus tomary law. 9 • The subordination of one indigenous group by another is not unique to the Berber of Morocco, but is documented by other indigenous groups such as the lnka of South America. See NathanWachtel , Th e Mitimasof the Cochabamba Valley: Th e Colonization Policy of Huuyana Capac, THE INCA AND AZTECSTATES 1400-1 800 ( 1982), and also JohnH. Rowe, Th e Mitimas of the Cochabamba Va lley: Th e Co lonization Policy of H11ayana Capac, THE INCA AND AZTff STA TES 1400- 1 800 ( 1980).
Page 13 of 32 to dominate andde termine the shape andqual ity of their lives, even after it has formally pulled
out,'' implyingcolo nization by a Westernco lonialfor ce.50
Besides political power, the racial privilege of the local Berber andArab popul ations lent
them prestige in bothth eir eyes as well as the French during their occupationof Morocco in the
early 1900's. Theirst atus as 'white' populations distinguishedthem from the Haratin whose
skinco lor alone gave away thehist oryof slavery,pe onage, andancient migr ation. This
obscuredpast devoid of recognizable ancestors is contrastedwith the Ait 'Atta pridein their
genealogical social organization based on their legendaryanc estor Oadda 'Atta. The
combination of racial privilege and militarydominance created agency among the Ait'A tta to
choose andneg otiate their own identityas wel l as dictate theide ntity of those theydomi nated,
like theHara tin.The implications of choosing one's identity arecert ainly not without its
"resource consequences. "51 The Ai t 'Attadiv ided landand wate r among their lineages while
displacing the rights of the sedentarygro ups theyconqu ered, adheringto their organizational
principle of excluding strangers or non-members from these benefits.52 The historical
discrimination against the Haratin hindered their progress towards self-detennination.53 Only
recently due to market changes andrur al-urbanmigrat ions, as well as changesin government
have the Haratin been gjven access to propertyo wnership, slowly commencing a process of self
determ.ination.
The law in the southernoa sis communities is a law in flux. The political dynamics of the
region still dictate thecontou rs ofrelationships along racial lines while the Moroccanstate has
so TUHIWAI SMITH,supra note 21, at 7. 51 Montoya& Zuni-Cruz,supra note 20. .ll DAVID HART, 0ADDA 'ATIA AND HIS FORTY GRANDSONS: THE SOCIO-POLITICAL ORGANISATION OF THE Arr . A TTA OF SOUTHERNMOR OCCO I 05 ( 1981) [hereinafterHAR T, DADDA 'ATT A]. Hartis considered thelead ing scholar of Berber socio-political historyand culrure. Primarily anthropologist, now professor in London, Han p,erfonned mostof his researchbetw een 1960-65 among the Ait Atta. . l Montoya & Zuni-Cruz.su pra no1e 20.
Page /4 of 32 made strides in guaranteeingrigh ts for all Moroccans. The fading customarytr aditions of the Ait
'Atta in the qsar-s, andthe shrinkingem inence of the local Arabre ligious fam ilies aremet with
strategies of Hara tin fam ilies andindivi duals, carving out a new direction fortheir fu tures by
migrating to cities forwo rk, sending theirrem ittanceshome where family are now able to
purchase property. Despite the lack of politicalpower in their communities,the Har atin arenot
entirely powerless. 5-4 They are able to negotiate andman ipulate existing power structures -
slowly subverting their historicalhier archical oppression.
U. Tribal Profile A. Colonial Power and the Implementation of 'Atta Rule
With the Ait 'Atta retaining control of the qsar-s by the end of the 19th century,the
implementationof their customarylaws wasinevit able. Facilitating 'Atta political dominance
was the judicial empowermentgi ven to tribalgo vernmentsby the French duringtheir brief
colonial occupation of Morocco from 1912-1956, knownas thepr otectorate era. Morocco was
already under colonial ruleby the Spanish in the south, but the interior remained largely untouched.55 The Moroccansu ltan"ru ledover a society dominated by tribalism in which, ... powerful Arab or Berber chieftains successfullych allenged theau thorityof thecent ral government(the maklzzen)."56 The French along the Algerian border exploited thevul nerability
of the centralgo vernment. Louis-Hubert Lyautey, a French officer posted in Algeri a, set up trading posts with tribesmen alongthe border and began an economic penetration of Morocco, a
S4 MICHEL FOUCAULT, THE HISTORY OF SEXUALITYAN INTRODUCTION, VOL. l, 92-93 (Robert Hurley. trans., Viaatge Books, 1990) ( 1978). "[P]ower must be Ullderstood in the firstinstance as the multiplicity of force re lations immanent in the sphere in which they operate and which constirutc their own organization. ..[and) as the srra1egies in which they !Akeeff ect whose general design or insrirutionalcry stalliz.ation is embodied in thesU!t e apparatus, in the formulation of law, in the variousso cial hegemonies . ..[p ]ow er is everywhere ; not because il embraces everything, but be<:ause it comes from everywhere." Id. ss WILLIAM A. HOISINGTON. JR., LYAUTEY AND Tl-IE FRENCH CONQUEST OF MOROCCO 22 ( 1995). Hoisington is currently a historypro fessor at the University of Illinoisand focuseson Moroccan history. 56 Id.
Page 15 of32 strategy to facilitate pacificationof the tribalMor occan interiorthr ougha governingsyste m of
indirect rulethat privi leged Berber authority. 57
Lyautey's ideas were soon implemented in order to deal with the 'native question' on the
interiorof Morocco.58 The strategy wasto employ anny ethnographers to study the Berber tribes
andcustoms anduse that informationto facilitate 'pacification ' of thetribes and incorporate their
governingstructur es into the French protectorate.59 Lyautey described thissyste m previous to
entering Morocco, while he wasposted in Hanoi:
Instead of abolishing traditional systems, makeuse of them: Rule withthe mandarinand not against him. It follows that ifwe are - andare always destinedto be - a verysmal l minority here, we ought not aspire to substituteour selves for the mandarins, but at best guide and oversee them. Therefore, offend no tradition, change no custom, remind ourselves that in all humansociety there is a ruling class,... and a classto be ruled:Enl ist the ruling class in our service. Once the mandarinsare our friends, certain of us and needingus, they have only to say the word and the countrywill be pacified,and at far less cost andwith greater certainty thanby all the military expeditions we could send there.60
Lyautey's methodology demanded that officers not "upset Berber "customaryla w" by
introducing eitherFr ench or Muslim practices."6 1 One outcome of this policy wasthe exaltation of theBe rber instirution of the tribal village council (ajmu), thought to be an authentic expression of theirpo litical Ii fe and eventually used as an instrument forfaci litating French ruleupon
62 appointing representatives. Thiss amei nstitution was recognized by the French government ands o gave rise to the political dominanceof Berber tribes across rural Morocco at the expense of other local communities like theHar atin.
51 Id. at 29. js Id. at 36. 9 s Id. at 64. 60 Id. at 6. 61 HOISINGTON, supra note 55, 81 72. 62 In.
Page 16 of32 The French policy towardstri bes emphasized differences between Arabs and Berbers,
betweenurb an and rural dwellers,and be tweensh ari 'a (Muslim) and customary (tribal) law. 63
This approach assumed that the two systems were incompatible ands eparate,ov erlooking the
factthat althoughtribes maintained governing structures that were internalto their own customs,
Berbers shared a common Islamic heritage with Arabs.64 Another problem wasth at the French
treatedtribes as isolated political units without consideringco-ex istence andde pendence upon
theirlar ger super-structures, and local sedentaryp opulations.65 This misunderstandingprodu ced
by the ethnographer's gazeand romanticvisio n of Lyautey was intensifiedwith the passage of
the Berber Dahir or the Berber Decreeof J 930. The decree sought to implement a system of
Berber justice, recognizing the Berber legal system.66 The reaction fromMor occans in the urban areas wasriot and resistance. The French were accused of forcing thesul tan to give up his
authority over the Berberhin terland and thedecree wasrecei ved as a threat to the religious and political unity of the sultanate. 67 TheFr ench claimed that the decree wasto reinforce the Berber justice system in order to protect the rights of those engaged in property transactions and litigation.68 TheBerb er Decree reflected the French perspective that the tribes should be governed according to their own laws andcustom s (but administered by the French), ultimately 69 pitting theur banMu slim governing authority against the ruraltribal regi mes. The French in effect, parceled out power among variouslo cal authorities,a system of divide and rule.
63 Han, Tribe in Modern Morocco, supra note 8, at 26. � Id. 65 at 32. 66 Id. WJLLIAMA. HOISINGTON,JR ., THE CASABLANCA CONNECTION,FRENCH COLONIAL POLICY, 1936-1 943 29 ( 1984). 61 Id. i.sId . at 30. 69 Id. The autl,oremp hasizesthat the policy was aligned on theaxis of urban versus rural because there were also Arab tribesthat benefitedfrom th.is d ecree.
Page 17 of 32 MahmoodMa mdanipropo ses that thistype of bifurcatedpower structure, or in the
Moroccancase, a trinity of powers (French civil law, Shari'a or Muslim jurisprudence, and
CustomaryLaw) creates a racializedstate power yielding a racialized civil society. 70 According to Mamdani,the colonial authority's promotion of ethnic differentiation was parto f their strategy to create allegiances to a native or tribalidentit y, and thereby empower native institutions of authority - usingthem to subject others. He asserts that
indirect rule aimedat nothingless than to shape thepr eferencesof the massthrough a more organic elite ...ind irect rulewas a hegemonic enterprise ...native subjects were incorporated into theare na of colonial power rather than ... (being]exclud ed from it.71
Native subjects in Moroccowe re incorporated into the colonial power via the Berber Da.hir. The
Hara tin were now subjected undermult iple systems of power. The institutionalization of customarylaw privileged certain native authorities, resulting in Haratin dejure oppression by the local Berber nobilityand ad ministratively appointed chiefs. A consequence of implementing a customarylaw system in Morocco was "to give"trad ition'' a markedly authoritariancontext" 72 that had negative implications foral ready powerless subjects like the Haratin.
B. Traditional Law: Ait 'Atta CustomaryLaw TheAit 'Atta area Berber or /mazighen tribein Morocco. Traditionally, they claim their originsare with their patri lineal ancestor, Dadda 'Atta or Grandfather ' Atta who lived in the
70 Mahmood Mamdani, Historicizing Power and Responses 10 Power: /11dfrect Rule and its Reform, 6 SOCIAL RESEARCH 859-86 (Fall 1999). available at hnp://firmearch.ocle.oreJimages/WSP1Jwsopdf2/PDF/04763/2OT46nS5. PDF, 3. Marnd.aniis a professor at the Dept. of Anthropology at Columbia Universityas well as the Direccor of the Inst. of African Studies at SIPA of
Col71 umbiaUniv ersity. He focuses on post-colonial perspectives of thetTadiC ional social sciences. Id. at 4. 71 Id. at 7.
Page 18 of32 73 sixteenth century and came to southeast-central Morocco. The genealogical relationship to the
74 agnatic ancestor Dadda 'Atta is what gave birthto the Ait 'Ana Confederacy, the super-tribal organizational unit of thistribe who are then subdividedint o five sub tribes, or kham khmas, the
75 five fifths. These tribes are then subdividedfurther into clans and lineages who dispersed themselves throughout theoasis area, expandingth e Ait'A tta tribal authority, usurpingand destroyingqsa r-s, intimidating the Haratin residents, evicting various Shurfa fam ilies and
76 gaining control of qsar life in the oasis. Their rapid expansion that privileged tribalism and their practice of marginal ism hasbe en described as a "striking example of 'Berber
Imperialism. ,..n
For the Berbers, the area of land litigation and regulation is directly impacted by their conquest of the sedentaryqs ar populations. Land was eitheracqu ired duringconqu est, becoming common lands for the local 'Atta clansand lin eages, or acquired by inheritance. The
'Attalegal system that centered on propertyownersh ip established economic equilibrium among tribal members anddi s-equilibrium forno n-members, thus, maintaining a system of privilege and social stratification.
The Ait 'Atta customarylaw , referred to as azerf. wasver y different from the shari 'a or
Muslim jurisprudence in that it was flexible, and often carried out by expert laymenrat her than
78 educated andtrai ned judges of law like the Muslim qaid. Another importantdiff erence is that
u DAVID M. H,,RT, Origin My ths. Autoc/11honous and 'Stranger · Elements in lineage and Community Fom,ation. and the Question of Onomostic Recurrencesin the Moroccan Rif,in TRIBE AND SOCIETYIN RURAL MOROCCO 131 (2000) [hereinafter HART, TRJBE AND SOCIETY]. 7 � Id. al 2. "'[A]gnatic lineage' or 'patrilineage' refers ... to the largest and mostwi dely embracing unilincal (and here, patrilineal) descent g,oupin which descent froma commonpatri lineal or agna1icancestor can actually be traced.gen ealogically and on a step-by-step basis, by its living members." Id. ?S HART, DAOOA . ATTA, supra note 52. al 3l. 76 /d. at lS. 77 Id. 7a llahiane,supra note 3, at 122. See also IGNAZ GOLDZIHER, INTRODUCTIONTO !SLAM IC THEOLOGY AND LAW (Andras& Ruth Hamori,tran s., 1981 ).
Page 19 o/ 32 the aze,fis completely secularin nature, dealing mainly withpr opertyright s and regu lation. The majorityof Berber peoples areil literate, however the ' Atta Jaw contains both writtenand or al elements. The oldest known written document of azerfis written in Arabic on camel skin, and is located in a religious repository with the lineage of Ait Mulay Abdallahbin Hsain, a Shurfa ancestor, (not an Ait 'Atta tribalmemb er) at theold 'Attacap ital of lghann Amazdarin the Atlas
9 mountains. 7 It is this intimate relationship withthe Shurfa. established duringth e time of Dadda
'Atta, that created the privilegedstatus of Shurfaand Ait 'Attaover the Hara tin. Thisal liance established a dual legal system in 'Ana territory where the Shurfa establishedcontrol over the
80 spiritual ann of rulewhi le the Ait 'Atta retained temporal rule.
A major part of Berber customary law consisted of landand property. The fundamental tenantof ' Atta landte nure wasthe pro hibition of fragmentation of lando wnership or alienation
81 to non-tribal members. Land and tree tenure were the cornerstones of ' Atta customary law, and determined ownership, production, membership, and rights. The exclusion of non-tribal members in this system operated to perpetuate a system of exclusive ownershipand thus
82 establish power in the community.
Various land tenure laws carefully regulated the qsar economies, restricting wealth to the arenaof land ownership andacti vities that derive from its control. For example, the 'Atta supervised the meticulous division of propertyamong Ber ber families along three major ecological zones in the delicate habitat of the oasis,maximi zing the benefitof scarce water and
83 fertile land for each household. Hoarding propertyof any kind, especially agricultural products
79 HART, OA0DA 'ATTA.supra note 52. at 157. 80 GELLNER, supra note I 9, at 172. 1 1 Ilahiane, Jupra no1e), a, 138. 82 Id. at 139. S) Id. at 142.
Page 20 o/ 32 like barleyor dates was prohibited. 84 Other laws regulated activities competing with landte nure
and were forbidden. Examplesof such activities were establishing a bakery,butche r shop, or
similarbusi nessthat would compete withthe divisio n of wealthaccor ding to land.85 These
activities were done communally instead. This prohibition adversely effected the Haratin most
of all as it disabled another avenue forthe Haratin to gain social mobilityand in stead upheld the
statusquo .
[T]he control of economic speculation, and the customarymechanis ms employed to block theentrance of market forces into theso cial organization of thevil lage aimedat isolating the middlemanoccupa tions whichwere the only options that could be mobi lized by the landless Haratine to economically compete withthe Berber landowners and undermine their hegemony. 86
The alienation of propertypre- 1956 barrednon -members from inheriting or buying 'Atta
lands. Specifically, in marriage, an Ait 'Attawoman who married outside the tribecou ld not
bring her real propertyin to the marriage andth ereby leave it to a stranger husband and children, rather,she received a monetaryequi valent forthe propertyshe inherited andthe real property
87 wasrem ittedto her nearest male agnate. This prohibition prevented the possibilityfor alienation of propertyto non-tribalme mbers, ensuringthe stasisof propertywea lth. The institution of sh/a 'a or "pre-emption" refers to the rights of the nearestmale agnatic kinsmen to object to a sale of land by one of his relatives, or to an exogarnouslyarranged marriage that would result in alienation of property.88 Should such an obj ection take place, the land sale or the marri age would be prohibited. These prohibitions andsy stems of dividing propertyall
84 Id.at 144. s.sId . at 143. 86 HsaiD Jlahiane, n1e Brenk-up ofth e Ksar: Changing Sefllemenr Pa1ternsand Environmental ,Management in Southern Morouo, 48 AFRICA TODAY 21, 32 (200 I) [hereinafterIl ahianc, Break-up of the Ksar]. 87 DAVID M . HART. Comparative Land Tenure and Division of/l'rigation Wa ter in Two Moroccan Berber Societies: Th e Aith Wn ryaghar of the Rifand the Ait Alfa ofth e Saghruand South-Central A tins, in TRIBE AND SoCJt;TY.supr a note 73, at 213. u Id.
Page 2l of32 reinforcedBe rber hegemony in theqsa r economy and concentrated land ownership in the hands of Ait 'Attape oples. Althoughthe post-colonial government attemptedto abolish the operation of customaryl aw, it nonetheless remainsthe local de/aero rule of inheritance inhibiting the
Haratin and othernon-tri bal peoples attempts at purchase.89
Berber laws enforced against non-tribal membersus ually occurred in thearea of the protection relationship, or ra 'aya .?O The protection pact contained its own rules and stipulations of who would police thetiggura or strip of land belongingto a Hartani,usu ally negotiated in exchange forport ions of agricultural products.91 Theassignme nt of the protectorto each piece of Hartani land took place in January andAugus t of each year,follow ing the transhumant migration patternsof the Ait 'Atta.9 2 Theprot ection pact ultimately served as a method of imposing 'Atta economic control by promising vulnerable sedentarycommu nities defense against raiding tribes.
This tense relationship required the supervision of the Haratin by the Ait• Attain order to ensure that production was at its maximum. Theft from the palm groves or agricultural plots was common, andp enalties were stri ctly enforced, especially against the Haratin. Farmingsancti ons were put into place to protect productivityof property. Sanctions were enforced foractivitie s such as unauthorized takingof dates, olives, and other fruit,wee ding along irrigation canalsand rivers, collecting green palm fronds for fuel, andwandering in the palm grove.93 The palm groves always had a chief, the amghar n 'tamazirr, who wasal ways a Berber, andpr otected the groves from theft.� Thevilla ge council, controlled by the landed Berber nobility, appointedth e
89 Jlahiane. supra note 3, at 171. 90 HART, DADDA 'ATTA, supra note 52, at I 10. 91 Id. 92 Id. at 111. 93 Ilahiane.Bre nk-up of the K.tar. supra note 86. at 29. � Id.
Page 22 of32 95 chief who protected Berber interests in the property. During the Protectorate era, the gro ve
chiefs tasks turned inward towardsthe sedentary community rather than their traditional post as
guards against external thieves. They becamehi redrather than appointed positions and
safeguarded thegrove from the threat of thievery frominside the qsar making the Haratina
prime target of enforcement.96
Should a person violate these farming codes or be found in thepalm grove stealing, they
were summoned to appear before the ajmu, or village councilwho met in front of the mosque in
97 an open space. The ajmuco nvened anddete rmineda punishment, usually levyinga fine, or
98 izmaz, of a large portionof grainor otheragricu ltural product. For theHar atin, this fine could
be especially devastating as theywere already verypoo r and sometimes incurred debt in order to
99 pay the fine.
In the modem context, customaryland and tree tenure arrangements st ill survive since
access to land is dominated by the system of inheritancethat traditionally excluded the
100 Haratin. The sharecropping system is also alive and well. However the payment method is no
longer 1/5 of the harvest but is more commonlya one-half system where the landlord provides
the land ando ne-ha! f of the input towardsseeds and equipment as doesthe sharecropper, and
101 each divide the production 50150.
While the traditional Ait 'Atta laws center on land ownership and production, their
criminal laws andeco nomic regulations also re late to the protection of land as the single source
of power and status. These cular nature of ' Atta laws is also an important fea ture of its function
9S Id. 96 Ensel, supra note 2. at I 72. 97 Ilah.iane,Brenk- up of the Ksnr, supra note 86, at 29. 98 Id. at 30. 99 Id. 100 llahiane. suprn note 3, at I 76. 101 Id. at 218.
Page 23 of32 as a law to rule or govern the qsar. There ligious aspectof law is handled entirely by a parallel
institutiono f the shari ·a, which is enforced by the religiousschol ars, and specialists of anygi ven
village, usua!Jy afqih, 102 belongingto the local shurfa comrnunity. 103 The shari ·a emphasizes
equality before God andthe well-being of theumma, or community of believers. The 'Atta laws,
secularin nature, are separated from thisrel igious ethos, and so permitts a legal system that
promotes exclusivity and inequality.
C. Traditional Governance Althoughthe Haratinphy sically occupiedthe qsar andworked itsfields, the y were
nonetheless excluded from participating in the legal structuretha t ran it. As quasi-contracted
· labor, theywe re under the conditions of the Berber customary legal tradition, occupyingthe
Berber legal space, yet not givenag ency withinit. The A.it 'Atta tribe preferred to exclude
outsiders in order to maintain their dominanceof sedentarycom munities.
Thequint essential formof rule in theqs ar wasthe ajmu, or local village council.
Traditionally, the ajmu consisted of Berber elders in the qsar and prohibited participation by
Shurfaand Har atin alike. The Shurfamai ntained a parallel power structure as qaids or religious
leadersand arbi trators. They functioned solely in the areaswher e the shari ·a ruled andso
limited themselves to trustype of authority. The village council originally retained the authority
to parcel out property,mana ge it, regulate trade, arbitratev ariousland dis putes, and punish
thieves. 104 Their focus on the management of the village's economic and cultural li fe advocated
preservation of Atta people and theirsupr emacy, leaving outsiders withvi olence and other fonns
10� Ensel, supra 1 note 2, at 250. He defi.nes/qil, as a leader of prayers aod/or teacher of the Qur'an. 03 Id. at 124 . io- 1 lahianc, supra note 3, at 126-27.
Page 24 of32 of resistanceas the only outlet of theircon cernsdue to their lack of representation in this
105 council.
The aj mu also arbitrated land disputes, however, when a local village had a dispute that could not be solved or resulted in a deadlock, the village coW1ci]cou ld referth e case to the 'Atta
106 capital forres olution. Beforethe French protectorate era, the Ait 'Atta Supreme Courtheard such disputes and convened outdoors, however duringthe French occupation , it was re-located to
107 a small one room school house built at the site in 1938 calledth e Jszinaf Thelo calcou ncils also followed th.istra ditional venue of hearingcases outdoors, in particular, in front of the local
108 mosque. The procedure consisted of summons and citationof offense, followed by
1 deliberation of thecounc iI. 09
At the highest level, the super-tribal or Confederate ajmu convened at the traditional
110 'Atta capital of lgharm Amazdar. Each sub tribewas represented at this council and they elected thesup er-tribal chief of theAit 'A na everyyear. The guiding principlesof election were that of rotation andcompl ementarity. Rotation of the chief was annual and complementaritywas reflected in election eligibility, as the candidates for office did not have a vote in the election for
1 11 cruef. Therights and duties of this top chief, who presidedover the entire A.it 'Atta
Confederacy had preeminence in anyde cision. This included responsibility fordefense of the
112 territory,regu lation of relations with outsiders, and declaration of war. The village ajmu followed this same model of election. In both cases, the chief was subject to disposal if he were perceived as unsuccessful in terms of a plentifulharve st, or there were some greatcalam ity that
10s Id. 106 HART, DADDA ·ATTA, supra note 52. at 167. 107 at 29. ios Id. Ilahiane, supra cote 3, at 134. '°"Id . 11 0 HART, DADDA ·Arri\,supra note 52, at 20. 1 11 Id. at 76-77. 112 Id. at 79.
Page 25 of32 1 marked his term. 13 Despite the egalitarianism expressed in this form of leadership, it explicitly excludednon- tribalme mbers,cre ating a deep fissure between the conquered and the ruling classes.
UI. HaratinRe sistance and Redefinition With.inthis framework of Ait 'Atta Jaws controlling the economic relationship withthe
Haratin,a separatesystem of authenticHartan.i jurisp rudence is difficultto locate, especially if
1 1 4 we rely on Eurocentric models of law. Whileno formal system of Haratin codes andlaws exists, resistance to Ait 'Atta laws in theform s of breakingthe laws, especiallyste aling, and circumventing laws, as well as seeking law in the form of indigenous knowledge, all provide spaces where it is possible to explore and identifyexpre ssions of Haratin law and order.
Resistanceto the 'Atta imperialre lationshipis largely evident throughthe frequent
Haratin citations forste aling from thepa lm grove. 115 Criminal enforcement of non-tribal members focusedpri marily on theft. Confinement of the Haratin to sharecropping tasks and low compensation fortheir work fed into the frequencyof theft. Under thepre- 1956 system, the
Haratin were excluded from the local councils altogether. Today, the Haratin are able to participate in the council due to their presence in the oasis as landowners, empowering themwi th the ri ghtto hold such offices. 116 Instead of being subject to the mercy of an all•Berber ajmu,the
Haratin are now able to protect their ownfro m allegations of theft,and are able to intervene
Ill Id. 114 MARIE BATTISTE& JAMES (SA 'KE'J) YOUNGBLOODHENDERS ON, PROTECTINGIN DIGENOUS KNOWLEOGE AND HERITAGE, A GLOBAL CHALLENGE 22.23 (2000). ''Thecor e of Eurocenrricth ought is its claim to be universal... Eurocentricint ellectualshave abandoned ancient truths,values, and ways of life, and have accepted Eurocennismas theirmea sure of progress." Baniste is Mi'kmaq fromUnam a'kik in Canada, and is a professor in the Indianand Northern Education Programat theUniv ersity of Saskatchewan. Her work focuseson the protection of indigenous heritage. Henderson. a Chickasaw fromOkla homais a member of the Universityof Saskatchewan ·s College of Lawand performs scholarship aroundis sues of Native peoples and Americanand Canadian jurisprudence. 115 Ilahiane, supra note 3, at 332. 116 Hsainll ahiane, Th e Social Mobi/iry of the Hnratine and the Re- Working of 8011rdieus Hubitus on the Sohara11 Frontier. Mt>rocco, 103(2) AMERICAN ANTHROPOLOGIST 380, 387 (2001) [hereinafterll ahiane, Social Mobiliry].
Page 26 of 32 when fines are levied. 117 This power has not gone unnoticed by the declining nobility who are quick to condemn the social mobility of the Haratin people as an erosion of law into complete chaos andanar chy. 11s
The most obvious change in the oasiscom munities in terms of law and order is the presence of the Haratin as a landowning cla ss. The colonial period in Morocco presented many pe-0ple withunfor eseen opportunities to migratein searchof seasonal work in the cities of
Morocco, Algeria, andeven tuallyEu rope. 119 Theexploi tative labor conditions that the Haratin wereexposed to in the qsar made work outside of it attractive. Obtaining work forwa ges rather thana share of crops empowered theHar atin with a method of circumventing theold traditional methods of exclusion and oppression. The Haratin employed the strategy of purchasingl ands theyhad worked formany ye ars with the monies earnedin cities. 120 The conversion of wages into landacqu isition servedas the primarymode of subversion of the traditional exclusionary system of' Atta law andgovern ance.
The impact of land acquisitionfor the Haratin has resulted in their election to village councils and the commencement of obtaining fullmembe rship in the community. 1 2 1
Representation of the Haratin in these councils has altered the ethno-politicalstru cture of the oasis1 22 andhas faci litatedthe visib ility of the Haratin in their respective communities as empowered citizens rather than marginalized actors in a feudal economy. "[nessence, these economic and political changes have prompted the mobilization of latent ethnic consciousness andthe cr eation of tradition among the Haratin."123 This tradition is rooted in the ability to
lli Id. 1>s /d. 1 I 9 /d. at 383. 120ll ahiane, supra note 3, at 264. 121 Id. at 318. 112 Td. at 319. 1 23 Id. at 320.
Page 27 of 32 purchase and own real property. The Haratin have takenthis privilege and have fashioned their own institutions of landuse andowners hip,expr essions of their �ergingjurisprudence in this areaof law.
Mutual aid amongthe Har atin is expressed in the institution of rwiza, a system of sharecropping that is completely runand o peratedby fellow Haratin,p rovidingass istance to otherswho are unable to complete agricultural taskson theirown . 1 24 Other aid effortshav e been establishedi n theform of a collective fund forburi al ceremoniesthat aredis tributedto those in needwho may not be able to afford the traditional expensesassoci atedw ith burialrights such as the feast, grave digging, and religious ceremony. 1 25 The Hartanimutual aid institutions of assisted labor andburial fundsco ntrastswith t he Ait 'Attape rception of land andwe alth. While the Berbers aim at keeping landas exclusive as possible, theHartani emphasize communal benefitof individually purchased plots. The Haratin ensure their survival as a community by financially supportingo ne another in this way.
Althoughthe Haratin were excludedfrom owning land pre- 1956, their unique connection with thelan d in the capacityof agricultural specialists and irrigation ditch diggers providedthem an advantagein termsof theirpro duction of these lands,and in tum,their abi lity to maximize the productionyield of thesesm all plots testifying to their "intimate ecologjcal knowledge'' of the oasis, giving them an advantage over Araband Ber ber landowners. 1 26 The Haratin's traditional knowledge about their environmentand me thods of fann ing have proved to be profitable as their highyields feed their communities andkeep production at a maximum. Therul es and traditions
1 2' I
Page 28 of 32 employed in farm ing on Haratin owned plots reflects an aspect of theirleg al system 127 similar to
the way theAi t 'Atta regulations of farm ing reflected their values of landten ure. However,
unlike the Berber, the Haratin actually worked these fields andcu ltivated them force nturies.
Whilethe Berber landten ure system focused on production and hi gh yield in order to benefitthe
Berber landowners to the detriment of thewo rkers, the Haratin use their extensive knowledge of
fann ing in order to assist one anotherin theco mmunity.
Storiesof Hartani oppression as field laborers indicate the consciousness of the biased
andun fairsy stem of sharecropping. One Haratintesti mony indicates theharsh work ing
conditions of his people and the realityof what it meantto be paid in kind.
I remember withviv idness, just as if it happenedyester day ...duri ng one of the majorflo ods of early falland late winter ...the guard of the irrigation system made us work almost naked,and the only thingw e ate was a piece of breadtu ckedun der or aroundou r waists: your hands worked,your back wasben t, andyou r forehead sweated as you labored in five-meter deep irrigation canalsfrom the risingstar to the evening star. 128
The tripleoppr ession of the Haratin under the Arab, Berber, and French - who are seen as
conspiratorsof the nobility, are markedwi th bitternessand trauma of endless years of unfairand
cruel labor conditions.129 The Haratin model of sharecropping for other Haratin, the twiza, flows
from thisexpe rienceand fashioned the labor relationship as one of mutual aid rather than
exploitation. Laborpol icies, an aspectof Haratin customaryla w is basedon a collective experienceand historyas sharecroppers and workers in other low-wage sectors. Memories and storiesserve as the guiding policy of Haratin communities in their development of their own
m BATTISTE.& YOUNGBLOODHE NDERSON, supra note 1 14, at 43-45. "The traditionaleco logical knowledge of Indigenous peoples is scientific.in the sense that it is empirical, experimental, and systematic. It differs in rwo imponant respects fromWestern sc ience, bowever: traditional ecologicalknowle dge is highlylocal izedand it is social. Its focus is the web of relationships between humans,animals, p lants, natural forces, spirits,and the land formsin a panicular locality, as opposed to thedis coveryof universal"l aws."" Id. at 44. 128 llah.iane,Soc ial Mobility, suprn note 116, at 389. 129 Id.
Page 29 of32 unique system of labor. Whilelab or defined classand ethnic ide ntification under the pre- 1956 period, theHar atin areev olving away fromth ese exploitative methods towards an equitable model that fosters mutual aid, assistance,and fai r working conditions.
Despite the increased visibility and agency the Haratin have gainedin theircom munities, theyare sti ll a partof small ruralcommu nities whose balanceof power is tiedto land ownership andlabor , andcan easi ly be manipulated by either majority. Theinter dependency of the different ethnicgroup s upon one another - the Haratin upon the Berber and Arab landownersfor labor, and the landowners upon the laborers to plant. tend, andpick produce - remains a strong fieldof influence in times of rapid social change. For example,one town'selectio ns that resulted in a Hartani winning a seat to therur al parliamentary council and subsequent boasting by many Haratin in the street led to a boycott ofHaratin labor, leaving manypeo ple without
0 work anda meansto survive.13 In response, the Haratin performedthe dabiha ritual, sacrificing a sheep to theBe rber elders,signi fyingthe ir submittalto their authority. Thestubborn su rvival of this formalritual was em ployed in order to reconfigure the power structure of thevil lage.
Moreover, the actual boycott of Hartanilabor indicates the types of modem economic coercion that the Haratin aresub ject too, disabling their advancement towards a more autonomous way of life.
IV. Conclusion The suppression of Haratin people's ability to (re)acquire land has severely inhibited the visibilityof Haratinju risprudence, identity and self.determination. Westernnoti ons of
Do Id. at 390. After the electionof a Hararine candidate to thepr ovincial parliament, the local Berber men and women decided to boycon Hartani labor. "[T]he Haratinesh arecroppers found tbemselves unemployed overnight, and rheir labor arrangements were eliminated. Furthermore, when the Haratine were encouniered throughout the palm grove, they were questioned as to there asons thatbr ought them to that part of the grove, and they were reminded thatthe fields and trees that had been feeding them for generation were not tbe propertyof the Haratine candidate theysupport ed." Id.
Page 30 of 32 indigenous self-determination are rooted in a tribe's physical occupation and control or dominion
over a territoryand its people. The relationship between landand self-determination is revealing
in that it is the control of alienation and exploitation of land that canpr oduce a visible legal
structure forpe oples tiedto that land. Because of the landlessness of the Haratin people and
theiroppr ession by another indigenous group, the visibility of Haratinla ws is minimal and
difficultt o assess in comparison with theformal structure provided by the Ait 'Atta.
Another cause of invisibilitymay be the operation andloc ation of custom that is
. _,,ui 'i,resumedto be an expression of thepe ople's will, forged in the crucible of daily living .
Daily living may suppress the expression oflegal traditions under a cloak of the mundane
masking a community's ethics, standards, and expectations of behavioral conformity (manners).
1 32 These customs "describe a legal situation" as demonstrated by Hartaniins titutions such as
twiza, and communal funds. As an unwritten law, these customs form the legal tradition o f the
Haratin andmainta i n the potential for change, flexibility, and adjustment.
As an outsider examining the jurisprudence of a culture throughthe anthropological
works of European authors, sociological and historical texts by Moroccans,and no literature by
Haratinpe ople themselves, I must recognize my limitedabi lities to fully understand or grasp
Haratin laws andcu stoms. Instead of presenting a complete picture ofHartani jurisprudence, I
present a problem of understanding and recognizing indigenous legal systems where a group
fallsout side of the norm. Moreover, the Haratin provide an example of why de-centering studies
of tribaljuri sprudence from NorthAmer ica is imperative forsome indigenous groups seekingto
l)I LEON SHELEFF, THE FuruR.EOF TRADITION, CUSTOMAR.V LAW, COMMON LAW AND LEGAL PLURALISM 377 (2000). Shclcff. originally from Sou1h Africaand now at chc University of Tel-Aviv, serves as a legal professor in the areaof sociology of laws and legal sys1cms. IJl Id.
Page 31 of32 assert their rights in their own lands, or to liberate themselves from otheroppre ssive regimes who may at times be othertri bal governmentacto rs.
Page 32 of 32 Glossary
Ait 'Atta - A Berber tribein southern Morocco
Ajmu - An 'Attaword forthe lo cal village corn1cil that is themost local form of ' Atta governance
Azerf - Ait 'Atta customaryla w
Baraka- an Islamicco ncept of divine blessing
Haratine - (singular Hartani), group of indigenous people to southern Morocco
Ismkhan- descendants of freedsla ves
Izmaz - finele viedagai nst a thiefby thevill age corn1cil, or ajmu
Murabitin- descendants of local Arabsain ts
Osar- an adobe walled settlement that encloses a village and its agricultural fields
Ra'aya - the protection pact entered into between the 'Atta andqsar residents
Shari'a - Islamicla w
Shfa'a - the ' Atta concept of preemption that gives the rightto the nearest male relative of a landowner who is selling property, to obj ect to the sale
Shurfa- an elite classof landowning descendantsof the ArabMor occand ynasty, also related to the Prophet Muhammad.
Tigurra- a strip of arable land,. usually belongingto a Hartani
Twiza - Haratine system of communal mutual aid Outlineof Governing Structures of the Oasis 1
Ait 'Atta azeefstructure :
Sub-tribe Sub�tribe Sub-tribe Sub-tribe Sub-tribe + + + + + Clans & Clans & Clans& Clans& Clans& Lineages Lineages Lineages Lineages Lineages
Ajmu LocalVi llage Council 'Atta membersonly Haratine excluded
Shari'a Structure:
ReligiousLeg al Issue _____. Sh urfa religious judge �Dispute (Divorce, Adultery,etc)
1 Note that these structures are the traditional structures founddu ring the pre-Independenceperiod of Morocco. The secular legal system of Morocco, that also has a shari 'a component replaces much of the old azerfsysrem, nonetheless, these traditional governing systems still operatepri marilythr ough the local village councils who are now elected. The council members still consist however, of land owners, thus marginalizing Haratine representation. 2 httpJ/www.infoplease.com/atlas/countrv/morocco.html