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

Abstract

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. 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.

Territorial Rights for Individuals, States, orPueblos? Answers from Indigenous Land Struggles in Colonial Spanish America

“…The territorial claims of pueblos exist in legal documents and in the pueblos’ histories. By examining early Spanish colonial law ( derecho indiano ) through both the authors who sought to systematize it and the historical records of litigation (Herzog 2013; Owensby 2008; Yannakakis 2013), we can see the arguments that launched pueblos as a subject of territorial rights and how they mediate between the individual and the state.…”

“…In the derecho indiano, we can see pueblos’ concerns because the formal recognition of local custom brought native practices into the sphere of Spanish law, making it American in the process (Herzog 2013). According to Solórzano, whose writings systematize the legal arguments used by pueblos, the Spanish crown recognized all Indigenous persons’ individual freedom and the right to own property.…”

“…The original rights of Indigenous people to lands they had continuously inhabited could not be ignored. Yet derecho indiano held that this required proof of continuous occupation through specific uses, and once lost or in doubt, the claims were hard to prove (Herzog 2013). Moreover, many colonial judges dismissed documents or sources from the “time of gentility”; that is, from before evangelization; Herzog (2013, 307) gives many examples from Quito.…”

“…Yet derecho indiano held that this required proof of continuous occupation through specific uses, and once lost or in doubt, the claims were hard to prove (Herzog 2013). Moreover, many colonial judges dismissed documents or sources from the “time of gentility”; that is, from before evangelization; Herzog (2013, 307) gives many examples from Quito. Many jurists also rejected the lapsed authority of the Incas and the Aztec kings as a source or law or title.…”

The Economic Transformation of the Inca Heartland (Cuzco, Peru) in the Late Sixteenth Century

“…Around 1564, Polo de Ondegardo (1917: 155) described using older Inca men to identify precolonial boundary markers in Cuzco. See Herzog (2013) on the consequences of legal recognition of indigenous practices.…”