Lo que los conflictos nos enseñan sobre el derecho a la tierra
Authors: Herzog Tamar 
Published: December 2024

This text describes the precariousness of land rights in colonial Latin America. Drawing attention to usage rights and possession, rather than property rights, it surveys debates in the colonial courts regarding who the land belongs to, how it is assigned and conserved by communities, families, and individuals, and what can these do to protect their entitlements. It re-examines what composiciones de tierra were, the rights of caciques to communal land, and demonstrates the tight connection between land rights and membership. The case study is the audiencia of Quito, and land conflict involving indigenous peoples, but the aim is to describe what land disputes can tell us about how contemporaries imagined, understood, and practiced, land rights.
These assertions mostly reproduced a common trope among historians of Europe’s colonial endeavor. According to it, while, until the late eighteenth and the early nineteenth centuries, common land tenure was the norm in most European jurisdictions, where most lands were burdened with a great variety of rights that belonged to a host of different legal persons, from as early as the 16th century, the commons were seriously challenged in the colonies, and private property, which combined a multiplicity of rights into a single, absolute entitlement, became the predominant model. Indeed, it was in the colonies that private property first found ample acceptance and was universally adopted.
Historians have explained these colonial developments by mentioning a combination of factors, mainly, the availability of land, the confrontation with the indigenous populations whose rights colonists wished to dismiss, and the absence of strong local communal ties or a nobility, which in Europe were said to successfully counter attempts at privatization. Together, these elements conspired to allow the emergence of the “acquisitive colonialist” who accumulated land as an absolute owner and who presented this pursuit as reflecting a natural law that obeyed the mandate of filling in a vacuum, which nature abhorred. The land, this acquisitive individual argued, had to be used and used correctly, its misuse being both morally unjustified and economically disastrous. According to this vision, this has always been the case. Rather than an innovation (as it truly was), private property had always existed and could indeed be traced back to Classical Roman law, where single absolute owners who pursued their ‘greatest happiness’ were already in existence.
Historical records nonetheless present a radically different portrait. In what follows, I use the information contained in several sections (Tierras, Cacicazgo, Indígenas, Fondo General, and Casas) of the national archives of Ecuador (Archivo Histórico Nacional del Ecuador) to ask how colonists competed with indigenous communities and persons over access to land and how these communities and persons responded. In that colonial past, which land rights were pursued and how did individuals and communities imagine, defend, and question them?
I begin by observing the precariousness of land regimes, where security regarding who had what was lacking for a variety of reasons, which I explain. I continue by asking whose land it was, and by analyzing the role of families and communities in these debates, among other things, to show that the right to land always hinged also on questions of membership and belonging. I end with provisionary conclusions regarding the need to de-naturalize the past and avoid the urgency to domesticate all that appears unfamiliar.