Bhaavya Sinha, Georgetown University
In his treatise surveying global history, Hegel wrote that Africa “is no historical part of the world; it has no movement or development to exhibit.” For centuries, as it pillaged and erased other cultures, the European states – influenced by Western philosophy – ignored indigenous culture and institutions, except for where they could be co-opted in furtherance of a larger colonial project. Nowhere has this been more acutely felt than on the continent of Africa, where Western philosophers like Hegel ignored long and diverse histories of indigenous peoples.
This willful ignorance has extended into the field of law, where it is felt particularly acutely due to the intersection of law with not only governance, but the protection – and revocation – of both individuals’ and communities’ rights and liberties. This has caused problems when non-Western people are violently as well as implicitly placed under the confines of Western law, or law that historically applied in Western European civilizations but has since come to be applied around the world through colonization and post-colonial influence. Over time, Western law has transitioned from treating non-Western people as property or otherwise lesser than Western citizens (though exceptions remain for people of foreign nationalities and incarcerated people, who are disproportionately of non-Western origin), at least in theory, but it has yet to realize the different ways law is practiced by these communities – and thus falls well short of understanding, let alone protecting them.
Angi Porter proposes an interdisciplinary approach of how law affects African people, both continental and diasporic, called Africana Legal Studies. This approach builds upon previous work in the discipline of Africana studies, where “Africana” is an “expansive unit of analysis, encompassing African people; the geography of the African continent as well as [‘]any physical place populated by Africans[’]; and African culture ([‘]concepts, practices, and materials that Africans have created to live and to interact with themselves, others, and their environments[’]).” Under this approach and centering the Africana experience over a Qualified Law Orientation focused on Western language and institutions, proponents of Africana Legal Studies like Porter acknowledge African systems of governance as a unique body predating many modern legal systems, termed “Protocol.”
Though Western academic and legal validation is not necessary to provide Protocol with the authority it already holds globally throughout the Africana diaspora, there is much to be learned by audiences with a Western focus, including those who have been colonized and forced into Western common law, by studying and accounting for Protocol in formal legal systems.
Though the West insisted upon its law being imposed on colonized peoples, it did not bend to adapt or even acknowledge the laws that the colonized previously lived under – and that they managed to maintain and kindle through and beyond formal colonization. This was true not only of Protocol in Africana communities, but of various other pre-existing forms of law, including caste.
Caste in its most well-known iteration originates in South Asia, but formal caste systems exist across continents. As colonized and formerly colonized populations are integrated through migration into Western society, Western law has begun to feel the effects of caste – and come to a loss. Human rights and discrimination law, both of which are already newer fields in the Western legal system that seek to correct prior blindspots of the way non-Western communities live, grapple with caste as a foreign concept.
Caste has snuck in front of American courts several times, though only recently has American law been confronted with the question of caste head-on. In 1923, Indian immigrant Bhagat Singh Thind claimed to the U.S. Supreme Court that he qualified for citizenship under the Naturalization Act of 1906, which at the time was restricted to “free white persons” and “persons of African descent,” on the basis that he was “white.” Central to Thind’s ultimately unsuccessful argument was his proposition that upper-caste Punjabis like him were “Caucasian,” a separate and superior race from the lower castes of India, and that people in his caste and regional community remained “Caucasian” and “Aryan” because the caste system prevented the “races” (castes) from mixing. The Court dodged the caste argument at the time, citing to the U.S. population’s common understanding of “free white persons” as “Caucasian,” but caste had made its way to the Court.
In 2020, the California Department of Fair Employment and Housing filed a federal lawsuit, relying on anti-discrimination provisions in Title VII of the Civil Rights Act of 1964, against Cisco Systems, Inc. on the grounds that a Dalit employee had been severely discriminated against by his upper-caste supervisors. Cisco’s response, including a motion to strike caste discrimination parts of the complaint, centers around the fact that no U.S. law, including Title VII, explicitly acknowledges caste as a basis for discrimination. The outcome of the case, which is pending appeal at this time, will have a huge impact for millions of caste-underprivileged people living in the United States (and the West broadly) who face caste discrimination in increasingly globalized societies.
More than ever, an understanding of caste as it affects all communities, not just South Asians, is key to changing Western law to properly address the concerns of the diverse communities living under Western governance. To this end, caste in Protocol must be examined and traced back to its iterations on and beyond the African continent.
What this paper seeks to do is discuss some of the different ways caste exists on the continent and throughout Africana, with an eye to building literature that can be used for further study tracing the lineage of caste in Africana communities outside the continent. In particular, this paper focuses on the rules of governance common to caste systems, particularly the Dime and the Gurage communities in Southwest Ethiopia, finding multiple commonalities indicative of caste in both. These caste societies and their rules of governance reveal a lot about how internal and external rules among caste groups are incorporated into Protocol, dictating parts of life from diet, occupation, resource access, spirituality to facets more traditionally considered in Western iterations of law, like dispute resolution.
II. Background and Framework
Protocol is “a general term encompassing many specific cultural governance systems and rules over space and time, and depending on the context, it should be preceded by a broad term like “Africana” or a narrow term, such as “Bamana” to indicate the scope of usage.”
Caste Protocol is a subset of existing Protocol. It has to do with the different forms of governance that relate to caste dynamics, both internal to a caste group (i.e., diet, religious rituals, family structures) and external to how caste groups relate to each other (i.e., proximity they can have to each other, what roles or occupations they occupy in a mixed society). It can further be narrowed, like Protocol itself, to the community it applies to in any given context.
Caste in Africana – and Africana caste Protocol by extension – does not have a large literature behind it. In applying legal frameworks to the existing studies and knowledge of caste societies and systems in Africa, I will use the following Africana Legal Studies frameworks.
A. Long View of History
The Long View of History approach emphasizes the influence of African traditions prior to the Maafa on modern Africana governance. Key to this approach is the absence of the common Western concept of progress over time, such that one can focus on the positive aspects of history.
The Long View of History is important in this paper, which focuses on the initial step of identifying caste in the continent pre- and post-Maafa for the purposes of eventually tying continental Protocol to Protocol that exists throughout Africana, including those communities ruled by Western law. However, it is also significant to note that there can be a tension in examining caste through this approach. It remains an open question whether a system like caste, at least in its most well-known, South Asian iteration, can be analyzed for its “positive” aspects. To that end, this paper applies the Long View of History by analyzing and examining where caste can be found in a neutral fashion, rather than a normative one.
In fact, this tension presents another reason for this necessary examination of caste in Africana: in order to properly assess whether there are any positive aspects to be noted in historical or modern caste systems in Africana, it is important to first recognize where caste systems exist before their benefits (or lack thereof) can be identified.
B. Cultural Continuity
The continuity approach focuses on Protocol through space and time, holding that Protocol was not erased or destroyed by the Maafa or the passing of time, but has instead adapted and changed with the Africana societies it is present in. Using this approach, linking Protocol and its various iterations through time and geographical distance is paramount.
The continuity approach is what informs the goal of this paper and the literature it hopes to set up: what does caste Protocol look like on the continent today? How does that link to caste Protocol on the continent historically? How do both of those link to caste Protocol in the Africana diaspora, particularly in the West? And how can this inform the future of law – Western and otherwise – in incorporating or responding to caste?
C. Carr’s Framework with an Emphasis on Governance
Under a third approach, Greg Carr’s Africana Studies Framework, there are six conceptual categories and accompanying framing questions that can be applied to any subject and time period within Africana. The conceptual category most relevant for our purposes is governance, which focuses on how Africana people organize themselves and relate to each other. The framing questions for governance are: “who are African people to each other?” and “what sets of common rules and/or understandings did Africans create to internally regulate their lives in the situation under study?”
In identifying caste in this paper in Africana communities, the objective is to examine how Africana people divided themselves, why, and what that meant for their relationships and interactions.
Using these three frameworks of Africana Legal Studies and employing African-centeredness, which will be discussed in greater detail towards the end of this paper, the analysis section proceeds to identify caste Protocol on the continent and initiate a discussion about how it might relate to caste throughout Africana.
First, and in any discussion of caste in Africana, there is a note to be made about the word choice of “caste” as a unique, academic term and how it is distinguished from “caste” when it’s used more generally to describe social hierarchies, such as racial hierarchies in the United States.
The latter use has a long history among influential figures and academics in Africana. In a particularly notable example, DuBois termed his analysis of schooling in the United States “caste education,” through which “schools played a central role in preserving the caste society established in the colonial-plantation period.” Further, Clayton Pierce writes, “Du Bois’s work on caste formation through schooling underscores the dynamic and adaptive nature of caste control in U.S. society, which continues today in the school, prison, hyper-policed communities, court, housing, and health systems.” Caste, as DuBois meant it, referred to racial segregation and hierarchy.
Other scholars have pushed back on this use of caste, wondering at the utility of the term outside of referring to a more specific system. Deepa Reddy posits that using caste in a general sense serves to “mystify the local,” or lend authority (and potentially vagueness) to hierarchical relationships, suggesting that ethnicity is a term that not only fills this purpose but encompasses both caste and race already. This distinction is not to suggest, of course, there are no links between caste systems and systems of racial supremacy, but that caste has its own unique meanings and qualifying elements.
For the purpose of examining caste in Protocol pre- and post-Maafa, we will characterize caste more as the specific term: not only as a stratified society, but one where the stratifications have a spiritual component such that a hierarchy is divinely authorized. These facets of caste systems have been commonly used by scholars. In particular, “[t]he concepts of purity and pollution are both ones which we shall expect to find in systems warranting the label ‘caste’.” For example, in his examination of caste in the African continent, D.M. Todd found that the Tutsi-Hutu social stratification in Rwanda was a “quasi-caste” system rather than a “caste system” because it was missing the divine approval and threat of pollution element that is key to other caste systems. Further, there existed the possibility for Hutu individuals to become identified as Tutsi for social purposes through economic and social power. Thus, mobility between the castes existed, such that it was not rigid the way caste systems are traditionally known.
B. Case Studies
1. The Gurage and the Amarican
Located in modern-day Ethiopia, the Gurage people live in a society with the Amarican people (also known pejoratively and historically as “Fuga” people) that has been debated to be a caste system among scholars.
Fuga can settle in one of two ways: a small plot of common land is set aside for them at the edge of the village, and they live and farm on it; or ‘a wealthy Gurage will permit a Fuga to erect a hut on his land at a “safe” distance behind the homestead, in which case the landowner enjoys the right of priority over the services which the Fuga performs for a village.’ ‘Because Gurage fear contamination from direct contact with Fuga they are forbidden to enter Gurage homesteads without permission, which in fact means until the occupants are at a safe distance, after which the homestead must be ritually cleansed’. Intermarriage is forbidden.
The Amarican people include within their community three different categories of craftsmen. In his analysis comparing different African societies and their caste systems, Todd claims it an “overstatement” to call the Gurage-Amarican dynamic a caste system if it is only two unequal groups, if, as he believes likely, the three different groups of craftsmen that encompass the Amarican are not hierarchically ranked.  On the spiritual purity component, he notes that the dominant group, the Gurage, is not pure, but simply not impure like the other group.
But this is glossing over the other telling aspects of the Gurage and the Amarican dynamic. Todd’s analysis of purity ignores that for a group to become polluted, as the Gurage believe they can be by contact with the Amaricans, it had to be pure to begin with. Also, as other scholars have noted, Todd’s statements may not be entirely correct; there is ritual purity among the three cult leaders in the Gurage. Further, the idea that caste systems only exist if there is one dominant group that is absolutely pure seems incoherent with caste as it is commonly known and practiced; if a South Asian community exists without many or any Brahmins, the top-most dominant group and certainly the most ‘pure,’ the community will still practice caste so long as more than one caste exists within it, through internal and external governance practices like endogamy, proximity restrictions, and dietary differences.
The practices that characterize governance of the Gurage-Amarican society certainly point towards such a caste system, by Todd’s own findings.
Fuga are not allowed to own land, and may not cultivate ensete, the staple food crop of the Gurage. Nor may they cross an ensete field or herd cattle. ‘These prohibitions are ritual safeguards for the Gurage, who believe that Fuga will destroy the fertility of the soil, injure the breeding capabilities of cattle, and change the milk of a cow into blood or urine …: occupations which the Fuga perform are to the Gurage despicable, and to hunt, or eat large game (as the Eastern Fuga do) is ignoble. Reinforcing these attitudes is the belief that Fuga take the form of hyenas at night, and consume all the domestic animals that have died in the village.’ It is said that in times of war ‘Fuga remained in the village lest their presence, which is commonly associated with evil-eye, should bring defeat to Gurage warriors; neither could they carry spears….’ Legal matters between Gurage and Fuga are regulated by a village council, but behaviour between Fuga is governed by their own legal code, and Gurage do not intervene.
Of particular note is how the governance tactics determining occupations and access to resources are rooted in spiritual rationale. As Alula Pankhurst writes, a “common mythical theme” among caste systems is the idea that marginalized groups had somehow fallen from a higher place or were being put in their (lower) place by a curse from a higher power, which could be mystical or could simply mean historical elders. For example, “a Gurage myth relates that a father cursed his son from whom the Fuga craftsmen were descended for having suggested that his father’s body smelt[.]”
So, in fact, the Gurage and Amarican practice many of the governance rules that are common to caste systems as they have been previously understood: there is endogamy, or a ban on intermarriage between the castes; there exist spiritual beliefs relating to purity and civilization that reinforce the caste hierarchy (from internal governance like holding weaponry to external governance limiting spatial mobility and proximity for the non-dominant caste); and caste membership is linked to governance practices such as occupation, diet, and physical location in society.
What does this information about the Gurage-Amarican caste system reveal about Protocol? First, within Africana caste systems, different castes can have different Protocol. This is in line with the governance principle under Carr’s Framework, where internal governance, or the rules applied within a group, are different from external governance, where rules are applied to interactions between two groups. Second, and specifically with regard to that latter external governance, the caste dynamic sheds light on Protocol as it relates to rules of living and enforcement. Especially notable in this caste society is the separate legal code for the non-dominant caste and the according principle of non-interference practiced by the dominant caste, through this external governance affording the non-dominant caste a measure of independence with regard to their internal Protocol. Conflict between the castes appears to be dealt with more familiarly, however; when there is conflict between the castes, a village council (presumably the yejoka councils composed of Gurage elders that play a significant role in Gurage governance) governs – but this remains an institution controlled by and catering to the dominant caste, based on the restrictions placed upon the Amaricans, the non-dominant caste.
2. The Dime
Also in Southwest Ethiopia is the Dimam region, where the Dime live. The Dime, which Todd did find to be a caste society, are comprised of various structured castes, with differentiated roles in society and access to resources for each of the castes.
Amongst the Dime there are seven ‘castes’ which vary greatly in size. They are all ranked, in an order which depends on considerations of purity, non-purity, and impurity. The chief and priest castes are pure, commoners are non-pure, and ritual servants (Kaisaf), hunters, smiths and tanners are impure. Membership of a caste is by birth, and cannot be lost, except by leaving Dimam or becoming the servant of the Amhara, the dominant ethnic group of Ethiopia.
The purity correlates with the governance structure in the Dime society. Todd writes, “[t]raditionally the four impure castes were excluded from the ownership of valued resources of Dimam: cattle and land. Smiths, tanners, and Kais were all servants and depended on high-caste patrons for the land on which and often the crops they ate. The Amhara conquest ended this situation. Now, most Dime rent land from the Government or private Amhara landlords, and their crops are needed to pay tithes and taxes. Although some important men still allow a smith to live tax-free on their land they are usually unable to give him sufficient crops to support his family.”
The level of a third purity category, which Todd had noted as absent (though may not actually have been or currently be) among the Gurage and Amaricans, presents more interesting elements of Protocol among Dime society.
Commoners lie in between the two extremes. They may own land and livestock, but may not sacrifice to God on behalf of an entire chiefdom, as do the chief and priest. They are not polluting, and are therefore allowed, indeed obliged, to pass on to the chief gifts from their crops and cattle, which he offers to the forces which produced them. In this commoners are different from the lowest castes, whose members do not possess such items (at least traditionally). Even if they did, they could not give them to the chief to sacrifice, since such gifts would both pollute him, and be unacceptable to the intended recipients. Thus commoners have a secondary role in the ritual life of the people, but the impure have none. The ritual system defines the impure as parasites on the country, depleting its resources, but playing no part in their renewal.
So there is again internal governance, a subset of governance under Carr’s framework, among the castes: what they can sacrifice, if they can sacrifice, where they can live, what they can own, what jobs you can do. There is also external governance among the castes: what is your relationship with the chief, whose house or lands can you access, who you must pay to exist. The spiritual rationale is directly linked to the occupation of the castes as well as their purity, all of which are linked to the castes’ perceived relationship with the resources of the region, primarily land or cattle.
C. Issues and Limitations
The two case studies above shed more light on internal and external protocol in the modern continent, much of which has been preserved within those societies, though scholars have noted improving attitudes towards non-dominant castes by dominant castes, such as the use of “Amarican” rather than “Fuga” by the Gurage or less stringent enforcement of endogamy among the Dime. Caste systems hold unique traits in common, and more research should be done on societies historically on the continent and in the diaspora that are linked to modern caste societies, with particular attention paid to how the Protocol of caste has persevered through time and space.
Still, these beginning steps have their own limits.
First, this definition of caste, discussed above against a more general definition of caste, is perhaps too narrow. Maybe it would be more Afrocentric to survey the variety of stratification systems that could even remotely be considered to be caste, including those that exist among Africana in the West; if Africans in that particular society consider it caste, why should it not be caste? However, as Deepa Reddy alluded to, it can be important to keep caste specific so that it holds not only analytic but legal utility, both in and out of Western law systems. Further, it seems that ‘caste’ itself as a term and system could be a South Asian or Indian context that is being forced to fit other societies, as Todd suggested. But the commonalities of these caste systems – the Dime, the Amaricans, and even those in South Asia across multiple religions and country lines – suggest there is some utility to this grouping.
Instead, perhaps the way forward after identifying a caste system is to note the ways caste systems are different. Caste stratification has its markers, but different caste systems have different emphases. As Pankhurst points out, “notions of purity and pollution are common in south-western Ethiopia even though their relative salience varies. Rather than a lack of concepts of purity and pollution, their special character in the south-western Ethiopian context needs to be appreciated.”
Second, though this paper tried to utilize a more neutral, anthropological approach as disclaimed in the beginning, it can be extremely tough to describe caste at all, including in Africana, without passing normative judgment. Even language like “dominant” and “non-dominant” castes suggests some sort of value or opinion, but, as expressed above, the question remains open whether caste can be described in any positive (or even purely neutral) light. That said, what remains key in the Africana Legal Studies space is to avoid Western progress orientations when describing historical or modern Africana practices. It is not the goal above all to keep from finding practices to be good or bad.
Third, many sources until recently discussing caste in Africa, including the seminal literature cited in this paper by Pankhurst and Todd, are anthropological approaches by White academics based in the West. This means there is not only an inherent bias in much of the written and scholarly literature available about Africana caste societies, but the authors often don’t have entirely complete or correct knowledge. As pointed out by other scholars with regard to the 1966 piece by Todd, White academic authors may not necessarily understand the spaces they study, especially if their subjects of study are spiritually informed as caste systems are.
With the above limitations in mind, this paper and its examination of caste through two case studies in southwest Ethiopia represent an initial step in the project to identify caste Protocol in Africana. There is merit in cataloguing this knowledge of Protocol alone and in democratizing that knowledge for further study and knowledge of Africana. This initial survey and set-up of how caste can be identified and Protocol is embedded will also have utility in future work: tracing specific customs through the Maafa to how they have affected descendants and relatives in the West, linking modern Protocol to historical Protocol on the continent, and identifying how changing and interacting societies, both within Africa and globally, can design governance – both law and Protocol – to respond to caste or incorporate it. Of course, Africana Protocol has been recognizing and incorporating caste for centuries. It is Western law that has this blind spot with which it must now reckon.
 Georg W. F. Hegel, The Philosophy of History, 92 (editor, edition, year missing – there are many versions of this book).
 See, e.g., Inmate Race, Fed. Bureau of Prisons, https://www.bop.gov/about/statistics/statistics_inmate_race.jsp (showing that the U.S. federal prison population is 57.6% White using data from August 2022); QuickFacts, U.S. Census Bureau, https://www.census.gov/quickfacts/fact/table/US/PST045221 (last visited July 2021) (showing that the general U.S. population is 75.8% White, according to data from July 2021). See also Georgina Sturge, UK Prison Population Stat. 14 (2021), https://researchbriefings.files.parliament.uk/documents/SN04334/SN04334.pdf (In England and Wales, “[c]ompared to the population as a whole, the BAME population is overrepresented within the prison population. In the prison population, 28% identified as an ethnic minority, compared with 13% in the general population.”),
 Angi Porter, Africana Legal Studies: A New Theoretical Approach to Law & Protocol, 27 Mich. J. Race & L. 249 (2022).
 Id. at 254; Greg Carr, Teaching and Studying the African(a) Experience: Definitions and Categories , in 12 Sch. Dist. Philadelphia, Lessons in Africana Studies: African-American History Course 13 (2006).
 Porter, supra note 3, at 283.
 United States v. Bhagat Singh Thind, 261 U.S. 204, 207 (1923).
 Id. at 210.
 Id. at 214.
 Paresh Dave, California Accuses Cisco of Job Discrimination Based on Indian Employee’s Caste, The Wire (July 1, 2020), https://thewire.in/world/california-accuses-cisco-of-job-discrimination-based-on-indian-employees-caste.
 Porter, supra note 3, at 284.
 Porter, supra note 3, at 285-286; W.E.B DuBois, Whither Now and Why, in The Education of Black People 151-2 (1973).
 Porter, supra note 3, at 285-286.
 Porter, supra note 3, at 269; Greg E. Carr, Towards an Intellectual History of Africana Studies: Genealogy and Normative Theory, in Afr. Am. Stud. Reader 445 (Nathaniel Norment, Jr. ed., 2007).
 Porter, supra note 3, at 269.
 Clayton Pierce, W.E.B. Du Bois and Caste Education: Racial Capitalist Schooling From Reconstruction to Jim Crow 54 Am. Educ. Rsch. J. 23S, 24S (2017).
 Id. at 24.
 Deepa S. Reddy, The Ethnicity of Caste, 78 Anthropological Q.543, specific page (2005)..
 D.M. Todd, Caste in Africa?, 47 Afr.: J. Int’l Afr. Inst.398, 400 (1977).
 Id.; Birhanu Bitew, Asabu Sewenet, & Getachew Fentahun, Indigenous Governance Systems and Democracy in Ethiopia: Yejoka Qicha System of the Gurage People, 12 Int’l Indigenous Pol’y J., Oct. 2021, at 1, 12(3).
 Todd, supra note 20, at 401-402.
 Alula Pankhurst, ‘Caste’ in Africa: The Evidence from South-Western Ethiopia Reconsidered, 69 Afr.: J. Int’l Afr. Inst.485, 490 (1999).
 Todd, supra note 20.
 Pankhurst, supra note 26.
 See Bitew, Sewenet, & Fentahun, supra note 22.
 Todd, supra note 20, at 404.