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Trust, States and Colonialism

For most indigenous peoples, the relations of trust responsibility within colonialism and modern states are not the same. Trust responsibility arose during the colonial period: Under the Doctrine of Discovery, European kings claimed land in the New World. Through papal powers, the Catholic Church granted this land to Spanish and Portuguese kings. The English and French followed and adopted a similar doctrine. The European colonial powers were granted control over land because, according to Christian doctrine, heathens could not hold title to land in light of a counter claim from a Christian king. In return for the land and political power, the kings were entrusted to Christianize the Indians and take responsibility for their welfare.

During the colonial period, kings carried out that responsibility. The Spanish kings organized Indian communities into local municipal governments; often, indigenous individuals received powers of governorship of certain regions. While land was reallocated to landholders and non-indigenous farmers and ranchers, indigenous communities could retain some use of it. The kings gave land grants to prominent citizens for economic development of the land. Indian communities were often pressed into labor for the empire or attached to landed estates.

In the U.S. and Canada in the 1760s, the British took control over much of eastern North America. Land was controlled by the king as Crown land and Indians lived there at the king’s pleasure, without benefit of political consent. Thus, they lost land, cultural identity and political autonomy. The trust responsibilities and powers of colonial days eventually passed to the new Canadian and U.S. governments. The Proclamation of 1763 remains law in Canada, specifying British control over land and trust relations to Indians. In the U.S., this control continued through the court cases now called the Marshall Trilogy, argued during the 1820s and 1830s.

In Latin and South America, however, the trust relations—which offered at least some continuity of land and some self-government—were transferred to new nation states during the independence movements of the 1810 to 1820 period. In California, Mission Indians were transferred from Spanish to Mexican control. The new nation states, often modeled after the U.S., favored political equality, individual rights, market economy and representative government. Indigenous rights and the old colonial trust responsibility were exchanged for indigenous citizenship and promises of market economy. While the Latin American and South American democratic states met with mixed success, Indian communities become more economically, politically and culturally marginalized.

In California, Mission Indians received citizenship and opportunities to form local municipal governments and exchange parish priests for the old mission padres. Mexico’s secularization policy for California Mission Indians continued trust responsibility, land in trust, and political recognition. But Californian landed interests rebelled, gained political power, dismantled the missions and took over mission lands, leaving most mission Indians landless. Continued trust and land for indigenous peoples fell victim to Mexican landed interests, who dismantled the missions and took up the mission lands. The Indian lands became private property of Mexican citizens. Some California Indians were given private land grants, but most lost them after 1847. In New Mexico, Pueblo villages had to petition Congress to regain Indian status. California Indians negotiated 18 treaties with the U.S., but the treaties were not ratified, and the protections of trust responsibility were not extended. Mexican Indians were granted citizenship but did not enjoy trust relations from the new Mexican government. Nation states throughout Latin and South America took the opportunity of establishing independent and post colonial governments as a means of absolving trust responsibility for indigenous peoples.