Colonial Law and "Native Customs": Indigenous Land Rights in Colonial Spanish America

Colonial Law and "Native Customs":

Indigenous Land Rights in Colonial Spanish America

Tamar Herzog (bio)

Scholars of colonial Spanish America are divided between those who cherish Spaniards for respecting indigenous land rights and those who denounce them for not having done so. For the first group, Spanish respect was enshrined in political and theological debates and in legislation and practice that from the sixteenth century asserted that natives had right to the lands they possessed before Europeans arrived.¹ For the second group, native dispossession was a dominant feature of colonial life. Whatever the theory may have mandated, the balance of power favored non-natives by allowing them access to a wide variety of social, legal, political, economic, and cultural instruments enabling them to control the land.²

Although these debates carry their importance, rather than engaging in dichotomies that limit the discussion to choosing between a "white" and a "black" legend, (good) theory and (disobedient) practices, or trying to describe and quantify how much land was lost and when and how, I would like to ask instead what happens when a colonial power respects native right to land.³ How does a colonial power—and how do its colonial subjects—reimagine an indigenous past and indigenous entitlements? Does respect guarantee continuity, change, or elements of both? What factors come into play and what is the end result?

My argument is that in colonial Spanish America respect for native rights, paradoxically, brought about a major reorganization. Two factors made this possible. The first was that native rights had to be recognized by colonialists. Implied in this obligation was the duty to appeal to Spanish administrators and courts, adopting forms of arguing and evidence-giving that were Spanish rather than indigenous. Natives were forced to pose as imperial subjects—only rights that made sense to Spaniards could be upheld. At stake were complex processes of translation and mediation. Understanding the indigenous land regime was perhaps important, but equally essential was what Spaniards imagined Indians could or could not have. Restricting most recognitions to cases in which both residence and use could be established de facto, Spaniards may have eliminated many rights that existed during the precolonial period; at the same time they created and granted others that were completely new. But whatever the outcomes of these processes—for example, Spanish translation and mediation could variously confirm native rights, cause dispossession, or create new rights—the rights of natives had profoundly mutated by the end of this "conversation." No longer truly indigenous and no longer deriving from a pre-Columbian past, those rights depended on entitlements that were anchored and based on the encounter with Spaniards.

If the first point of rupture was the change from ancestral to colonial rights, from native to Spanish practices, the second was tied to the major spatial reorganization, which Spaniards either caused unintentionally or deliberately mandated. Following their arrival, many native communities had completely disappeared; while others were restructured, moved, or fused with neighboring villages, only a few were permitted or able to remain in their original locations.⁴ As a result, by the middle of the colonial period many (if not most) native communities were no longer situated on their original sites.⁵ Because Spaniards believed Indians had land rights, new native communities created during the colonial period were given access to land. But, as I will demonstrate below, these processes also played a major role in modifying the nature and extent of native entitlements.

Because these questions are enormous, I will focus my attention on one region by surveying the documentation related to communal (not private) indigenous land from the audiencia of Quito (the present-day Republic of Ecuador and the southern part of Colombia) during the colonial period.⁶ Most historians have described the periods and processes in which lands were taken, which mechanisms facilitated dispossession and how natives reacted, or affirmed without explanation (another common move) that the law was a "formidable tool" that was "weighted in favor of European land acquisition."⁷ Following another path, I will reconstruct what was argued—that is, what the various native and non-native parties to a conflict regarding...