Sunday, March 25, 2007

the earliest days of discovery

Ok, NOW we are getting into the good stuff… starting back at the beginning – (or the beginning of the end, depending on how you look at it)

Indian law is unique because it wasn’t just created out of another set of laws; it wasn’t just written up and adhered to. Instead, it kind of evolved out of trial and error. The laws affecting Indians were kind of made up as we went along – most came about as a RESPONSE to something that was happening right then. Since Indian law evolved out of the relationship between conquerors and conquests, it’s different than other kinds of law because there were a lot of issues to sort out.

First – what rights did the Indians have to the land? Second – What power did the US have over the Indians and their land? Third – what duties and obligations were there on both sides?

They had to start somewhere, right? First the court had to start hammering out these issues, before they could start moving on to the technical stuff.

Indian law and policy in dealing with Indians pre-dates this country. Before we became the US of A, there were already treaties and agreements and rules that were followed because, if you will recall, ENGLAND staked claim to this part of the world, first. And before, during and after England claimed this land, there was conflict with the Spaniards, the French, and other European groups as everyone wanted to claim this new land.

So the first matter that they all realized had to be addressed, before even discussing the Indians, was which of these European nations had the right to the land. (I am not saying they did have ANY right to the land, I am saying this from the perspective of the explorers and settlers – they thought they did, and at the time, they saw the Indians kind of as in their way… a problem that had to be dealt with.)

The “Old World” had some interesting rationales to justify their presence and taking of the land that is now America. Back in the 1400’s, the Pope was seen, through a major part of Europe, as the gatekeeper to heaven – he was seen as having divine spiritual jurisdiction over everyone’s soul – he alone could decide whether they would go to heaven or not. He permitted explorers to go out and look for new lands, in order to bring the word of God to these lands and Christianize them. Back in those days, the natives of these new lands were seen as “heathens” because they didn’t know about the Christian god… and therefore, Europe and the Christianized world didn’t really see them as equals, but as savages. Hardly better than the animals that also populated these strange lands. It was seen as “natural law” that the “advanced” Christians should go forth and bring the word of God to these lands, and deliver ownership of these lands (and their riches) to the Church.

So, in the 1400’s, the King of Portugal asked the Pope for permission to conquer the Canary islands off Africa. He convinced the pope that the people there were essentially animals, because they didn’t have a form of writing, they didn’t live in houses, they didn’t wear the same clothes as Europeans. The pope bought it, and issued the “Romanus Pontifex” which was a legal edict, binding on all Christian kings and monarchs, confirming that Portugal had the exclusive right to colonize not just the Canary islands, but other parts of Africa as well.

At this point, the kings of other countries looked at each other, and thought, “now what?” They wanted to explore and conquer distant lands as well, increasing THEIR kingdoms, too. At this point, Christopher Columbus approached the king of Spain, and pointed out that since Africa was off-limits, they should sail WEST across the ocean, looking for a shorter route to India. As a bonus, any undiscovered lands out there in the west, could be claimed for Spain.

The king told him to go for it. And so Columbus apparently thought that any lands he came across that were not claimed by other “civilized” nations, but which were inhabited by indigenous people only, were his for the taking, under the guise of the Spanish Crown. If the inhabitants diverged from Christian civilization, they and their lands were fair game.

In his explorations, Columbus came across a lot of land in the west Indies (the Caribbean) and the mainland of the US. He came back to the King of Spain, and told him of the “savages” that lived there, and the king of Spain shipped off a letter to the pope, telling him of these unchristianized people. Pope Alexander the 6th then issued edicts giving Columbus and Spain the right to colonize these lands and conquer them for Spain. (I wonder if the fact that this pope was a Spaniard AND stood to profit from the conquests had anything to do with it… hmmm)

So once the pope had issued edicts giving Spain the title to these lands, it was pretty much locked and loaded for the Spaniards. They had title over ALL OTHER EUROPEAN COUNTRIES and civilized nations. The other countries were not going to mess with this right because they all feared the power of the pope… nobody wanted to cross him and risk getting excommunicated and kicked out of the Kingdom of Heaven, right?

The areas Spain conquered were often decimated. They use the term “black legend” to refer to the destruction the Spaniards brought. American Historian Angie Debo estimates that in the first 20 years of colonial administration in Hispaniola, which was one of the first colonies in the Caribbean, the population of the indigenous people tanked from 250,000 to 15,000. IN TWENTY YEARS! In other places, the indigenous population disappeared completely.

Want to know a funny fact? Spain, in order not to feel guilty about what they were doing to these people, had their lawyers (yes, us lawyers are like cockroaches, we have been around forever) draft up a document called the “requerimiento” that the king said had to be read to ALL of the groups of natives before the Spaniards tried to conquer them. This document was unbelievable.
It said, in essence, that god had given charge of the whole human race to the pope, who had donated these lands to the king and queen of Spain. The Indians were told this was all put down in the pope’s bulls, or writings, and they could see them if they wished. (like the Indians cared what some far-off jerk was ordering… what right did he have to do this? Who was this GOD that gave him the power?) Then the requerimiento explained what was expected of the indigenous people… they were told to take some time and think about this, and to acknowledge that the pope was the leader and ruler and superior of the WHOLE WORLD, and they had to consent to letting these new leaders preach to them about God. The requerimiento went on to tell them what would happen if they didn’t follow these new orders… they were told that with “god’s help” the Spaniards would forcefully enter the new lands, enslave them, take their belongings… and that if anyone who was killed in the doing of this, it was the fault of the natives.

Sometimes these turkeys even tried to get these natives to SIGN an agreement that they understood and agreed to these requirements.

Now the lawyers of Spain had written this long document out, and the Spanish conquerors were supposed to read this to the locals first. In reality, they often whispered it under their breath right before they attacked a sleeping Indian village at night, or read it a mile away from the people before they snuck up and attacked them. And even they DID read it to these people… the INDIGENOUS DID NOT SPEAK SPANISH! Most of them had no idea what the hell these crazy Spaniards were going on about!

But, it made the king of Spain feel better, and made him feel that they were fairly dealing with the native population. Charming, isn’t it?

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