Who Owns the Land (and Why)?

When Christopher Columbus arrived in the Caribbean islands in 1492, he made a claim which to us sounds preposterous. He reported to his patrons, the Spanish monarchs Ferdinand and Isabella, that “I have taken possession for their highnesses.” So the Bahamas, three thousand miles from the Iberian peninsula and hitherto unknown, suddenly were owned by the Spanish crown? On what possible grounds?

The justification for the claim has become known as the Doctrine of Discovery, the foundation to this day for holding legal title to a parcel of land in the Americas.

A PRE-CONSTITUTION “CONSTITUTION”?

The Doctrine long predates the United States and its founding charter, the Constitution, whose completion in 1787 we mark this Constitution Day, September 17, 2021. Indeed, most of the principles, practices and precedents of the document – and the legal and constitutional scaffolding it erected – reach way back. A document designed to uphold the people’s rights, including holding property title to a defined land parcel, rests on an inheritance from across the Atlantic.

And it conflicts with how the indigenous tribes of the Americas, whose soil it originally was, traditionally understood occupying land.

American society is belatedly coming to grips with the rightful demands of different racial and ethnic groups for equity and inclusion. Among recent practices to respect indigenous peoples is the “land acknowledgement.” I begin my class in Pacific Northwest history, for example, by recognizing that my campus sits on the ancestral lands of the Coast Salish peoples.

I must say I’m not entirely comfortable with this generally laudable practice, for two reasons. First, routine repetition risks turning it into formulaic boilerplate. More profoundly, such recognition may overlook that vastly different native understanding of landholding.

So, in this year’s installment of my ongoing series on the Constitution, I seek to make this obscure legal history transparent. America’s Charter assumes a long-established way to look at land; protection of individual land titles was already “constituted” in theory and practice.

I confess it is a delicate task to plumb these historic depths with objectivity; I venture an analysis with tentativeness. I recount the story not to justify indigenous dispossessions, but rather to show that the Europeans’ legal tradition carried with it a built-in accountability that today forces us not just to acknowledge but to reckon with ancestral tribal claims — on Euro-American legal and constitutional grounds.

THE BACKDROP TO DISPOSSESSION

The story rests on European cultural assumptions that originated in the medieval order.

One might be termed a counterattack mentality. It developed out of desperation: For a thousand years Europe was an invaded land — first by “barbarian,” later by Hun and Mongol and Viking, finally by Turk and Moor. Displaced and dispossessed Europeans slowly pushed back to regain their territory, enlisting the sanctions of law and faith to launch a re-conquest. By extension they viewed all “heathen” peoples as fair game in a retaliatory drive to enlarge beleaguered Christendom.

Moreover, the settlers held to a distinctive legality: namely, the concept of “real estate.” In the culture of feudal Europe, it was land and land alone, in law and custom, that was the basis for wealth and security; only the land was permanent property, real estate. Thus ownership, confirmed by a title deed, conferred not just wealth and standing, but also a grip on reality. It sanctioned occupancy.

For the dispossessed, the process was as baffling as it was tragic. To the tribes the land was a familiar mother, the wood and wind-swept expanses the place of the hunt and the spirit quest. Land was supernaturally provided for use, not sale or ownership; it was seen not as definable property but more as we might view air. Natives held fierce commitments to place, but in terms of communal occupancy, not individual ownership. They asserted a territorial right to share its use, but never sell. Land was not commodity, but commonality.

But landholding concepts of the conquerors prevailed, transferred across the Atlantic via the Doctrine of Discovery, that most fundamental assumption by which European seafarers “claimed” distant lands for their sovereigns. As European kingdoms built empires across the globe, they exported, along with guns and germs and surplus populations, their view of legal title to “real estate.”

Imperial conquest and domination, where one state authority rules another people not its own (Tony Smith’s definition), is endemic in human history. The story of European (and Euro-American) imperialism looms largest in current thought because of its reach and its recency. This global exercise of military and economic — and legal — power is the main feature of the last 500 years of history. (It was a startling development: a backwater region suddenly reversed its status as an invaded, beleaguered, and fragmented place to rule the earth.)

Among the many consequences, negative and positive, of European colonialism is the status of land “ownership” in law and practice. It originated in the medieval relations of lords to commoners and church to civil authority. Oversimplifying this so-called “feudal” system, it established that both authority and wealth rested in a claim — a literal en-title-ment — to land.

Thus, in European cultural, social, and legal understanding, “real estate” is what the sovereign holds, from which accrue benefits from rent, sale, or beneficial use (like farming). It can be conveyed to another through sale, grant, conditional grant (retaining “quitrents” or commanding fealty), bequest, treaty, or outright conquest by an invader.

That is, land equals the most tangible of “real” and “alienable” (conveyable) wealth. (By contrast, asserts the U.S. Declaration of Independence, rights to life, liberty and the pursuit of happiness are inalienable rights – they can never be lost.)

By its own premises, European law (and later U.S. law) was compelled to recognize an ancestral title resting in a tribe. Therefore land once held through such original status must legally pass to a European sovereign (based on both prior “discovery” and negotiated conveyance or conquest) before it could be transferred to a private or business entity (e.g., a colonial “proprietor” like William Penn) and then to a settler who could receive a title deed to it.

Restating the logic in American context: According to Euro-American law, to pass the “title” of a defined parcel of land to an individual, the aboriginal claim must first be “cleared” (often by treaty), so that the American government could subsequently convey it to a private landholder.

Keep in mind that these protocols were not new. From time out of mind the societies of the Mediterranean and Europe had asserted rights of individual landholding, including buying and selling. Evidence exists of the ancient Babylonians developing surveying metrics to govern land sales. More brutally, conquests followed by occupation carried the presumption that the conquering potentate became the new owner of his new domain.

Medieval Christendom, with the popes wielding political authority, added another dimension: missionary efforts to win conversions among pagan peoples. When outside invasions, especially from militant Islam, reversed the extension of Christian influence, the missionary enterprise justified occupying pagan lands in the name of the church. A succession of Roman “popes had established the idea of a worldwide papal jurisdiction,” explains Robert J. Miller, chief justice of Oregon’s Confederated Tribes of the Grand Ronde. The church must fulfill her call “to work for a universal Christian commonwealth,” over which the pope was both caring shepherd and legal arbiter.

Hence in the 1400s, as the Portuguese began to probe the Atlantic to bypass Muslim control of the Eastern Mediterranean, the Roman popes began to issue decrees to legitimate, but also to constrain, new contacts with exotic lands. These elaborated the emerging Discovery Doctrine as a means “to control their own actions and conflicts,” in Miller’s words. They culminated in Inter Caetera, issued in response to Columbus’ return to Spain in 1493. It was his wish, declared Pope Alexander VI:

that in our times especially the Catholic faith . . . be everywhere increased and spread, that the health of souls be cared for and that barbarous nations be overthrown and brought to the faith itself. . . . Christopher Columbus. . . discovered certain very remote islands. . . . [So] we exhort you very earnestly in the Lord . . . to lead the peoples dwelling in those islands and countries to embrace the Christian religion. . . . And, we, of our own accord, . . . give, grant, and assign to you and your heirs and successors . . . all islands and mainlands found and to be found, discovered and to be discovered. . . .

Notice the mix of Christian vision, pragmatic geopolitics, and legal presumptuousness. Recognize the subtle conflating of at least three goals: the Christian imperative to spread the faith, the long campaign to reconquer lands lost to Muslim expansion, and the jockeying to maintain church control over the worldly designs of princes.

It needs to be added that these decrees and their often-bloody application on the ground did not go unchallenged. Francisco de Vitoria (1483–1546) for instance, insisted that “the Indians have the right to their properties,” for “they are true masters of their things, like the Christians of theirs.”

THE AMERICAN LEGAL FRAMEWORK

For three centuries European nations vied with each other to find, claim, and occupy sectors of the two American continents. Gradually, beginning with the United States, their colonies broke away from their respective monarchs. Britain’s recognition of independence also conveyed sovereignty over the land and its peoples. Drafted soon after, America’s Constitution then clarified that it was the national government that held final authority over the tribes. Specifically, Congress was assigned exclusive control over “commerce with foreign nations, and among the several states, and with the Indian tribes” (Art I Sec 8). Both individual states and private citizens were to yield to federal policies.

The Doctrine of Discovery itself was confirmed in American constitutional law by the Supreme Court in Johnson v. M’Intosh (1823). According to Chief Justice John Marshall’s ruling, initial European discoveries were deemed as peaceful variations of old-fashioned conquest, intended to justify territorial claims over any European rival. The discovering nation gained a prospective right of first refusal to native-held lands, a kind of option-to-buy: If a tribe ever chose to cede its ancestral land rights, the sovereign — now the U.S. government — was the sole, eligible buyer.

Marshall later ruled more favorably to tribal interests in two cases brought on behalf of the Cherokee Nation in 1831 and 1832. He held that:

the Indian nations had always been considered as distinct, independent, political communities, retaining their original rights, as the undisputed possessors of the soil, from time immemorial . . . .

He stressed that the label of “nation” applied to tribes “in the same sense” as to foreign nations, that treaties made with the tribes stood alongside the Constitution as “the supreme law of the land, and that “the Indian nations possessed a full right to the lands they occupied” until given up “with their consent.” True, Marshall declared, tribes are uniquely “domestic, dependent nations,” but each is “a distinct community, occupying its own territory, with boundaries accurately described,” within which state law “can have no force.”

Do you hear an echo of Francisco de Vitoria?

Hence the Doctrine of Discovery, embedded in an entire system of the rule of law, was now firmly enshrined as a U.S. constitutional maxim, but constrained by Marshall’s concession of the tribes’ independent status. In ironic justice, it is that precise body of precept and principle, imported with the invaders, that tribal leaders now mobilize to reclaim ancestral rights and lands.

THE CHRONOLOGY OF DISPOSSESSION

In sum, this legal foundation under-girded a process that began with Europeans encountering new lands and ultimately enabled private citizens to acquire title deeds to individual land parcels. Recapping:

• 1492: Columbus “discovers” the West Indies, asserts claim of ownership by his sovereigns, Ferdinand and Isabella of Spain.
• 1494: A Spanish-Portuguese treaty divides between their respective sovereigns all “new worlds” recently (in West Africa and the Caribbean) and subsequently discovered.
• 1500s and 1600s: France, Britain, and Holland challenge this pretension to exclusive world control, ultimately forcing Spain to agree that land claims stem not just from prior discovery but from “effective occupation.”
• 1783: The British grant independence to the U.S., plus title to North America south of Canada and west to the Mississippi River.
• 1785 and 1787: The newly independent U.S. designates the territory west of the original 13 states as public domain, held in trust (not as a colony) by the republican government on behalf of the new “sovereign” — the American people — and intended in due course to be surveyed, sold with full title conveyed to private purchasers for a set price, and, when settled, welcomed into the new union as a co-equal state.
• 1830s: The Supreme Court confirms a process in place since the earliest Anglo-American settlers: Ancestral Indian titles could and should be “liquidated” only by treaties of cession, which perfect the ownership claims of the United States.
• 1840s–1860s: Americans start filtering into the far West; treaties with Mexico and Britain formally cede those domains to the U.S.; treaties force tribes to give up their ancestral claims in return for tracts retained by them (“reservations”); Congress grants governments to settlers, first as territories, then as states; federal land offices oversee conveyance to citizens within those jurisdictions legal title to defined parcels of those areas ceded by the tribes, culminating in . . .
• 1862: Homestead Act provides settlers clear title to 160 acres of public lands, essentially for free — the ultimate demonstration of “effective occupation.”

SO WHO OWNS THE LAND?

Within the American constitutional framework, the indigenous people hold title to their lands until they convey that title to a European or American nation. Then the U.S. government, on behalf of its people, holds it until sold to a private citizen.

On what grounds? European legal precedent, for better or worse, created both possibilities and limits on holding land as one’s own, and mandated that government protect those property rights.

If that sounds “colonial,” it is. But it is an alternative to the blatant uncompensated takeover typical of most wars of empire. Indeed, looked at one way, it seems like a hypocritical whitewash of naked conquest. But viewed differently, it was conquest bound by a constraining rationale; there is a built-in accountability to both conscience and constitution that invites tribes to reclaim land rights through remedies of law.

Now, it’s not as if we could reverse the dispossession. How far back would one have to go? As a colleague has pointed out, “The story is the same for any place on earth when one entity conquers and occupies land. We screamed over the Russian occupancy of the Crimean Peninsula, but one could argue it should belong to the Germans because it was under control of the Gothic tribes. Or maybe the Greeks. Or the Crimean Tatars.”

Yet within that imposed constitutional regime rooted in the Doctrine of Discovery reside possibilities for redress if not reversal. Treaties bear the same force with the Constitution as the law of the land; proven breaches — and they are many and obvious — are thus “unconstitutional.” Hence, despite their very different understanding of landholding, tribes in the later 20th century began to work that alien legal system to re-assert claims to sovereign “ownership” of lands “reserved” to them by the old treaties. Other rights, such as Pacific Northwest tribes’ access to fisheries, have thereby been restored.

(Similar efforts are occurring globally, as impoverished people in the developing world seek to improve their lot by gaining formal legal title to lands they live on, that is, by embracing European legal doctrine to overcome some of the legacy of European colonialism.)

In sum, this formal process of securing title, though dictated, thus confirms to any resident, and to any reservation Indian tribe, formal standing with respect to their land that once only kings could claim. For the tribes specifically, points out Colville tribe member Laurie Arnold, the reservation system both limits tribal sovereignty and reinforces tribal sovereignty. Accordingly, these tribal nations can claim they maintain title to unceded domains — embracing the legal tradition long used against them to re-assert their ancestral claims, their unfulfilled treaty guarantees, and, well, their ownership of their “real estate.”

I do not draw any conclusions as to where we go from here, in law, policy or redress. But I will unhesitatingly acknowledge that the United States as a nation has arisen on the ancestral homelands of many diverse native peoples. It’s the least I — and we all collectively — must do.