You can’t steal something that has no owner, and this obvious fact was the moral cover for virtually all of the real estate in the Americas—the so-called New World—becoming owned by European colonists. The Spanish and Portuguese colonists still recognized the moral and temporal authority of the Pope, and they had the assurance that God was on their side.
The moral authority for conquest, abstract for Protestants and concrete for Roman Catholics, was in those times joined at the hip with legal authority. The law of nations arose with nation-states of necessity, grounded in “natural law,” which was grounded in religion.
International law recognizes even today a title by discovery to terra nullius, “nobody’s land.” Terra Nullius is also the title of a bull from Pope Urban II in 1095, which purported to extend the literal “nobody’s land” to make land up for grabs when owned by nobody Christian. The doctrine was used to acquire title to land against Africans, Aboriginal Australians, Maori of New Zealand, Pacific islanders, and of course American Indians.
The Spanish and Portuguese were working from papal authority, Terra Nullius limiting legitimacy to Christian governments and Inter Caetera by Pope Alexander VI in 1493 apportioning the lands empty of Christian hegemony if not people between the Iberian maritime powers. Relying on Divine Authority, the Spanish and Portuguese were not daunted by urban centers like Teotihuacán or Copan or Cuzco. Indigenous cities in Latin America were not objects of denial but of conquest.
The Protestant colonizers, primarily English after they shoved aside the Dutch and the Swedes, lacked a direct authorization from God’s representative on earth because the whole point of being a Protestant was the belief that God could be approached directly and not solely though the One True Church. The United States inherited English Common Law, and it would fall to the Common Law tradition to justify colonization.
The asserted lack of cities in the Americas was an important “fact” the courts relied on to legitimize taking Indian land. We can no longer call it “stealing” because the courts said so. The presence of Indian cities—permanent structures—would have been ironclad proof of a population of sedentary farmers producing enough surplus food to support the workers who built the city and the people who lived there.
Cities, therefore, were the sine qua non of civilization. Cities support skilled tradesmen, artists, and philosophers, and if the Indians produced enough agricultural surplus to support cities then their land use and land needs were not all that different from the Europeans who purported to own the land based on pieces of paper.
Land titles in the Americas began with grants from European kings. In the desert Southwest, original title came from the Spanish king. From the eastern seaboard toward the Mississippi, the English king handed out pieces of paper establishing title to lands he had never seen. Those lands were also occupied at the time the king was giving them away.
Remarking on this in Johnson v. M’Intosh, one of the fundamental cases that underpin federal Indian law to this day, Chief Justice John Marshall made it clear he knew the fact of the matter. “Thus,” he opined on the royal grants, “has our whole country been granted by the crown while in the occupation of the Indians.”
In the Johnson case, Marshall not only recognized the right of the king to make grants of Indian land, he also explained why the United States had become entitled to do the same.
We will not enter into the controversy, whether agriculturists, merchants, and manufacturers, have a right, on abstract principles, to expel hunters from the territory they possess, or to contract their limits. Conquest gives a title which the Courts of the conqueror cannot deny…
Justice Marshall went on to enter into that very controversy.
Although we do not mean to engage in the defence of those principles which Europeans have applied to Indian title, they may, we think, find some excuse, if not justification, in the character and habits of the people whose rights have been wrested from them.
Marshall then undertook to describe the people whose lands were granted out from under them:
(T)he tribes of Indians inhabiting this country were fierce savages, whose occupation was war, and whose subsistence was drawn chiefly from the forest. To leave them in possession of their country, was to leave the country a wilderness; to govern them as a distinct people, was impossible, because they were as brave and as high spirited as they were fierce, and were ready to repel by arms every attempt on their independence.
Bloody wars ensued and, according to Marshall, the game retreated from the edge of the wave of European settlement and the Indians followed the game:
The soil…being no longer occupied by its ancient inhabitants, was parcelled out…
The presence of cities in North America would have rendered Marshall’s fanciful narrative completely unpersuasive. The Spanish colonists to the south needed no tale of Indians as itinerant hunter-gatherers. Lands the Spanish claimed would become part of the U.S. long after Marshall invented his story.
Empty lands did not limit the conquistadors because they carried a writ from the Pope allowing them to take any real estate not owned by Christians. So it was that the Spanish took Tenochtitlán from the Aztecs, and did not stop to contemplate the degree of civilization required to build and maintain Tenochtitlán or the Toltec city of Teotihuacán or the Mayan cities of Chichen Itza and Copan.
To the Spanish and the Portuguese, civilization did not matter. Only Christian civilization counted, and so they burned all the Mayan codices—enabling the bogus claim that Indians did not produce written materials—and they defaced the temples Indians had built to be permanent. The vandalism extended into the Andes in South America, where they destroyed most structures of spiritual value to the Incas except for Manchu Picchu, which they never discovered.
The Spanish also knew of the pueblos scattered along the Rio Grande. It was their oppression of those peoples that led to the Pueblo Rebellion in 1680, when the formerly peaceable farmers erupted in rage and sent the surviving Spanish in a hasty retreat back to El Paso del Norte, where they stayed for 12 years before gathering enough force to reconquer most of what is now New Mexico.
Looking back on this unfortunate history, the obvious question is why South American Indians lived in cities and North American Indians did not?
Coming to understand that pre-Columbian agriculture in North America did support cities might not have changed Justice Marshall’s mind about the nature of Indian land titles, but the mere existence of those cities would blow one line of Marshall’s reasoning right out of the water.
In part II, we will consider two UNESCO World Heritage sites that question the assumption that North American Indians had no cities and no collective agriculture and therefore, by European standards, no civilization.
This story originally was published August 15, 2016.