Instruccion sobre las ventas y enagenaciones de tierra de indios (Mexico, 23 February 1781)
A general order of the audiencia of Mexico voiding every sale, loan, pledge or lease of indigenous land made without licence, including sales between Indians and sales of land held by private inheritance rather than by community grant. Notaries and district justices who drew such instruments faced a 500-peso fine and loss of office, buyers lost the purchase price, and the order was to be cried by bando in Castilian and in the language of each district.
Why this wins its question: The inalienability of indigenous land in Spanish America is usually asserted in a clause - communal land could not be sold - with no document behind it. This object gives one order in full: what it prohibited (sales, loans, pledges and leases, community land and privately inherited land alike, Indian to Indian as well as Indian to Spaniard), who was punished (notaries and district justices, 500 pesos and loss of office, instruments void; buyers lose the price), how it was to reach people who could not read Castilian (bando in Castilian and in the language of the district, repeated by every incoming alcalde mayor, extended to the parcialidades of San Juan and Santiago), and what it admitted (two earlier decrees had failed; buyers coached Indians to declare themselves mestizos or castizos so the sale would stand). It quotes the instruction's contemptuous language about the people it protects instead of paraphrasing it away, names the tribute revenue as a stated motive, and ends where the paper trail ends: the 1816 copy drawn for the suit to void the sale of the rancho of Pena Blanca by the naturales of Cochiti.
Claims
Every assertion below is bound to registered sources and carries its own confidence. Weight them; do not treat the page as uniformly authoritative.
The order was issued by the real audiencia of Mexico on 23 February 1781 as a stopgap - expressly to be observed while the court of Madrid confirmed it or determined otherwise - and it is the third attempt in three years, citing the general decrees of 20 July 1778 and 23 December 1780 issued by the viceroy and by his predecessor Bailio Frey Antonio Maria Bucareli, which it says had not corrected the abuse.
The problem it names is a market, not a seizure. It describes the general abuse of the noxious alienation of Indian lands, house lots and houses, both of individual acquisition and of community and repartimiento, through loans, pledges and leases and through sales that the Indians execute voluntarily or forced by need or coercion, not only among themselves but to outsiders, Spaniards, mestizos and other castes living in their towns, for trifling sums, without the qualification of necessity and utility required by ley 27, tit. 1, lib. 6 of the Recopilacion and without the prior licence it requires.
It also records the evasion that made the rule fail, which is the sharpest detail in the document. Advised by the buyers, the Indians were made to conceal their legal status and take instead that of mestizos, castizos and other castes, so that the sale would go through - a transaction disguised by changing the caste of the seller, in a legal order where the protection was attached to the status.
The prohibition is drawn as widely as the document can draw it. No sale, loan, pledge, lease or any other kind of alienation of Indian land is to be executed on any pretext, neither of the lands distributed to them as communities for their dwelling and cultivation nor of those they have acquired as their own by inheritance, donation or other acquisition of their ancestors; the prohibition binds Indians dealing with one another as well as Spaniards, mestizos, mulattoes, other castes, hacienda owners and ranchers resident in their towns; and no such transaction may proceed without licence of the superior government, the juzgado general de naturales or the real audiencia, with necessity and utility qualified and the fiscal heard first.
The enforcement falls on the officials who make the paperwork possible. District justices and notaries - including those of the capital - are forbidden to draw such instruments of sale or lease without the said licences, on penalty of five hundred pesos and deprivation of office, with the nullity of whatever they execute; buyers and lessees lose the price of the sale and the rent of the lease in lands of the Indians' own dominion; and in lands of equitable benefit such as those of repartimiento, where the Indians hold no direct dominion, sellers, lessors and pledgers as well as buyers, lessees and pledgees forfeit the land, which is to be applied to other needy individuals who will observe its conservation and use.
Publication is specified with the same care as the penalty, and the language clause is the part worth quoting. Testimony of the decision is to be despatched by cordillera to all the justices of the kingdom so that on receipt they publish it by bando in the Castilian language and in whatever is proper to the natives of their district, leaving testimony in the archive of their court so the cordillera continues, and each incoming alcalde mayor is to repeat the publication. Because the same abuse was noted inside the capital, the bando was also ordered published in the parcialidades of San Juan and Santiago.
The document's own vocabulary is part of the evidence and is quoted here rather than smoothed away. Its diagnosis is that Indians stripped of land give themselves to the idleness and vagrancy to which they are naturally inclined, abandon their families, defraud the tribute rolls, fail their parish duties and fall in with mulattoes, lobos, coyotes and other people whose malice and perversity easily precipitates the Indians, through their rusticity and ignorance, into robberies and killings, and to the incorrigible vice of drunkenness. The protection and the contempt are in the same paragraph, and the fiscal interest - the fall in tribute receipts caused by flight - is named as a motive alongside compassion.
The instruction is signed by Martin de Mayorga and Diego Antonio Fernandez Madrid, and it closes by ordering that testimony of it and of the preceding resolutions be sent to the king, so that his sovereign justification may approve it or apply wiser measures - an audiencia acting first and asking for confirmation afterwards.
The copy that survives shows the order still being used thirty-five years later, and shows what it was used for. The notary Francisco Arteaga certifies at Mexico on 2 November 1816 that he drew the present copy from the government files in compliance with a superior decree, in the case for annulment of the sale of the rancho of Pena Blanca made by the naturales of Cochiti, which was being remitted to the real audiencia of Guadalajara; and a further note records that the audiencia ordered the copy printed so that it circulate and be observed in the towns. The rule was live litigation, not a dead letter, and it was invoked by a community to undo its own sale.
What this object rests on and what it does not. The text is read in Mariano Galvan Rivera's Ordenanzas de tierras y aguas of 1849, which reprints the instruction and its certificates; the original bando and the Pena Blanca expediente were not opened, so the tier is secondary. The document is evidence of what the audiencia commanded and of what it admitted was happening; it is not evidence that alienation stopped. Its own recital - that two general decrees in the preceding three years had failed - is the best reason in it for reading the prohibition as a measure of the pressure on indigenous land rather than as a description of its security.