History of Colonization 9 – Taking Aboriginal Lands
13. Were the Spanish Entitled to Take Aboriginal Lands?
Why, as described in the previous unit, did Francisco de Vitoria feel compelled to uphold the indigenous people of the Americas as property owners? Because if they could not own property, then the Spanish could simply help themselves to what they wanted without resort to conscience, since you can’t steal what no one owns. Because denying the indigenous people of the Americas the right to own property amounted to the legalization of theft.
Why did Vitoria find it necessary to assert that these people could govern themselves? Because if they were not capable of governing themselves, then the Spanish, in asserting their right to rule the people the people they were in the process of conquering, were merely taking over what needed doing, like an adult moving in and assuming guardianship of a gang of orphan children. They could claim that they were bringing law to a lawless land. The fact that the Spanish conquests brought war, death, disease, disorder, mass slavery, institutionalized brutality and tyranny, was and is, of course, forgotten or ignored.
The arguments that Vitoria rejected in the first part of his Aboriginal rights discourses were arguments that the indigenous people of the Americas were so fundamentally inferior to Europeans as to be subhuman. Some of the arguments that Vitoria addressed in the second part of his discourse asserted essentially that Europeans and European institutions, and the people representing these institutions, were so superior to the people in the Americas that the people of the Americas had no choice but to submit to their will.
“It being premised, then, that the Indian aborigines are or were true owners, it remains to inquire by what title the Spaniards could have come into possession of them and their country….The first allegation to consider is that the Emperor is lord of the whole world and therefore of these barbarians also.”
At first glance the idea that the Spanish King might have authority over the whole world might seem a naïve and fanciful assertion by unsophisticated early modern thinkers. However, it is not very far, in fact, from the position taken by British and Canadian courts of the present day. The British doctrine of the supremacy of Parliament, for instance, places no limits on the reach of British law. Thus Britain’s bare assertion in 1843 of sovereignty over British Columbia has been deemed sufficient in Canadian courts to establish British sovereignty over British Columbia at that time, despite the fact that British presence in that territory in that era was nominal at best.
In 1532, however, Vitoria could find no way to support this assertion, stating that there was no basis in law or statute for upholding such a point of view. And even if it were accepted that Charles V – then King of Spain and the Holy Roman Emperor – had lordship over the whole world as alleged, this lordship, Vitoria pointed out, would extend to jurisdiction over, not ownership of, the lands in question. This is because kings govern the lands they rule, but they do not own them.
Again, although Vitoria’s analysis was and remains an accurate description of the difference between sovereignty and ownership under international law from medieval times to the present, this difference has had a difficult time being accepted under British/Canadian law in respect of Aboriginal people. Thus in the 1991 Delgamuukw Supreme Court of British Columbia decision by Chief Justice Allan McEachern, the court states, “It is the law that aboriginal rights exist at the “pleasure of the Crown,” and they may be extinguished whenever the intention of the Crown to do so is clear and plain.”
The essentially racist criteria underlying this aspect of British/Canadian law can be seen by comparing it to the wording of the notorious Dred Scott decision of the United States Supreme Court in 1857, “A Negro had no rights a white man was bound to respect.”
And an Indian had no property rights a White government was bound to respect, according to a well established principle of Canadian and British law.
“That the Pope has free power, on the footing of supreme temporal lord, to make the Kings of Spain rulers over the Indian aborigines.”
Well, if the King is not king over all, then perhaps the Pope was emperor over all, and could grant these rights to the king.
What was being questioned was of course the 1493 Papal bull “Inter Cetera,” which purported to grant all the lands in the Americas to Spain and Portugal. Was this grant valid? Could Spain rely on it to justify appropriating lands in the Americas? Vitoria didn’t think so.
Vitoria pointed out that the Pope is the spiritual lord of the world (according to Catholic doctrine) but that his worldly powers extend only to defending the church and overseeing Christianity. The Pope could not grant what he did not possess, and therefore he had no right to grant territories and sovereignty in the Americas to the Spanish. Thus Vitoria concludes, “At the time of the Spaniards’ first voyages to America they took with them no right to occupy the lands of the indigenous population.”
Then what about the right of discovery? No, said Vitoria, citing ancient Roman law – Justinian’s Institutes – which had come to be accepted as fundamental European law. According to Justinian’s Institutes, any unclaimed, waste or unoccupied land, could be claimed by its first discoverer. But the land in the Americas was occupied and already had owners, so this doctrine did not and could not apply. If the right of discovery applied to occupied lands, argued Vitoria, then the people of the Americas would have as much right to claim lands in Europe as Europeans had to claim lands in the Americas.
Again, what seems like a naïve assertion in respect to the doctrine of discovery has a modern parallel in British/Canadian/United States law where the doctrine of discovery lives on. The doctrine in the modern form states that the first European country to “discover” a territory controlled by an indigenous population, gets to keep that territory – like a game of tag, a “tag-you’re-it” doctrine for a game where only Europeans are allowed to win.
And indigenous populations are only permitted to lose.
And, given this established doctrine, none of these clever and sophisticated lawyers and jurists has to even pause to consider how anybody can “discover” territories that are already occupied.
Vitoria discusses a number of other – as I see it – increasingly less relevant assertions, of which I will mention only one, the right of power to do what it will. This basis of title is still asserted by many and so remains relevant. To that assertion, Vitoria has an answer which also remains relevant: “For, if this is enough to confer dominion, a robber has dominion over his victim even up to death, because he has power to kill him, and a thief has power to seize his victim’s money.”
All of which demonstrates to me that in terms of sophisticated thinking, many of those who today deny Aboriginal rights are simply showing themselves a long way behind the times.
Almost 500 years, in fact.
 Delgamuukw v. The Queen, p. ix.
 Quoted in Lies My Teacher Told Me, p. 150.