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Igorot Squatters and Indian Wards: Toward an Intra-imperial History of Land Dispossession

  • Rebecca Tinio McKenna (a1)
Abstract

This essay considers two land disputes that took place in the first decade of U.S. rule in the Philippines and that reached the U.S. Supreme Court: Cariño v. Insular Government (1909) and Reavis v. Fianza (1909). In arguing their cases, litigants were forced to reckon with the property rights regime of the former Spanish empire. In this regard, the cases affirm the import of inter-imperial frameworks for understanding colonial problems of land ownership and sovereignty. When arguing over the rightful owners of Philippine lands, parties to these cases also drew on the history and legal bases of land dispossession and settler colonialism in the American West. Further, in later decades, the arguments made in one of these cases would figure into legal conflicts over Native American lands. These cases thus suggest the value of also examining intra-imperial relationships, the emphasis of this essay. They demonstrate how histories and legal structures of settler-driven “expansion” and extra-continental colonialism informed, even constituted, each other.

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*Corresponding author. E-mail: Rebecca.T.McKenna.56@nd.edu
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Notes

1 Williams, Walter L., “United States Indian Policy and the Debate over Philippine Annexation: Implications for the Origins of American Imperialism,” Journal of American History 66 (Mar. 1980): 831.

2 Theodore Roosevelt quoted in Williams, “United States Indian Policy and the Debate over Philippine Annexation,” 825.

3 A classic formulation of the market-expansion interpretation of the U.S. acquisition of the Philippines is LaFeber, Walter, The New Empire: An Interpretation of American Expansion, 1860–1898 (Ithaca, NY: Cornell University Press, 1998 [1963]). More recently, Ninkovich, Frank A. has made a variation on this argument in The Global Republic: America's Inadvertent Rise to World Power (Chicago: University of Chicago Press, 2014). On the disassociation of political-economic power from territorial expansiveness, see Smith, Neil, American Empire: Roosevelt's Geographer and the Prelude to Globalization (Berkeley: University of California Press, 2004).

4 The 1946 Luce-Cellar Act, however, did allow for Filipino nationals in the United States to become U.S. citizens.

5 Wolfe, Patrick, Settler Colonialism and the Transformation of Anthropology: The Politics and Poetics of an Ethnographic Event (London: Cassell, 1999), 163.

6 Classic works that have emphasized shared patterns in the conquest of the U.S. West and overseas imperialism include Drinnon, Richard, Facing West: The Metaphysics of Indian-Hating and Empire-Building (Minneapolis: University of Minnesota Press, 1980); Slotkin, Richard, Gunfighter Nation: The Myth of the Frontier in Twentieth-Century America (New York: Maxwell Macmillan International, 1992); Hunt, Michael H., Ideology and U.S. Foreign Policy (New Haven, CT: Yale University Press, 2009).

7 Kramer, Paul A., The Blood of Government: Race, Empire, the United States, & the Philippines (Chapel Hill: University of North Carolina Press, 2006), 1921. See also Kaplan, Amy, The Anarchy of Empire in the Making of U.S. Culture (Cambridge, MA: Harvard University Press, 2002); and Ann Laura Stoler's essay, Tense and Tender Ties: The Politics of Colonialism in North American History and (Post) Colonial Studies,” Journal of American History 88:3 (2001): 829–65.

8 Stoler, “Tense and Tender Ties,” 846–47, 862.

9 Colonial formations in the Philippines reshaping U.S. mainland institutions and practices is a dynamic explored especially productively in McCoy, Alfred W., Policing America's Empire: The United States, the Philippines, and the Rise of the Surveillance State (Madison: University of Wisconsin Press, 2009); and McCoy, Alfred W. and Scarano, Francisco A., eds., Colonial Crucible: Empire in the Making of the Modern American State (Madison: University of Wisconsin Press, 2009).

10 Recent scholarship that has been especially useful in composing this essay includes Goldstein, Alyosha, “Toward a Genealogy of the U.S. Colonial Present” in Goldstein, ed., Formations of United States Colonialism (Durham, NC: Duke University Press, 2014); Hixon, Walter L., American Settler Colonialism: A History (New York: Palgrave Macmillan, 2013); DeLay, Brian, “Indian Polities, Empire, and the History of American Foreign Relations,” Diplomatic History 39:5 (2015): 927–42; Byrd, Jodi A., Transit of Empire: Indigenous Critiques of Colonialism (Minneapolis: University of Minnesota Press, 2011).

11 As Lorenzo Veracini argues, while settler colonialism and colonialism may be “analytically distinct,” the two “intertwine, interact, and overlap.” See Veracini, Lorenzo, Settler Colonialism: A Theoretical Overview (Basingstoke, UK: Palgrave Macmillan, 2010), 4.

12 Ventura, Theresa, “From Small Farms to Progressive Plantations: The Trajectory of Land Reform in the American Colonial Philippines, 1900–1916,” Agricultural History 90:4 (2016): 467.

13 Owen Lynch notes that it was not until 1893 that a mortgage law “provided for a comprehensive registration of all existing rights and possessory claims.” See Lynch, Owen J., “Land Rights, Land Laws and Land Usurpation: The Spanish Era (1565–1898),” Philippine Law Journal 63 (1988): 106.

14 Tipton, William M., F, Appendix, “A Sketch of the Difficulties Encountered in the Application of the American System of Surveys to the Public Lands in New Mexico, Arizona, and Colorado, and in the Adjudication of the Rights Acquired Under Spanish and Mexican Grants in those Territories” in Report of the United States Philippine Commission to the Secretary of War for the Period from December 1, 1900, to October 15, 1901, Part 1 (Washington, DC: Government Printing Office, 1901), 317.

15 For a longer discussion of this case in relation to the development of the Baguio hill station, see McKenna, Rebecca Tinio, American Imperial Pastoral: The Architecture of US Colonialism in the Philippines (Chicago: University of Chicago Press, 2017).

16 Transcript of Record. Supreme Court of the United States. October Term, 1907. No. 298. Mateo Cariño, Plaintiff in Error vs. The Insular Government of the Philippine Islands. In Error to the Supreme Court of the Philippine Islands. Filed May 2, 1907, 137. Hereafter “Cariño v. Insular Government, Transcript of Record.”

17 Supreme Court of the United States. October Term, 1907. No. 298. Mateo Cariño, Plaintiff in Error vs. The Insular Government of the Philippine Islands. In Error to the Supreme Court of the Philippine Islands. Brief for Plaintiff in Error, 3. Hereafter, “Cariño, Brief for Plaintiff in Error.”

18 Cariño v. Insular Government, Transcript of Record, 59 and 63–65.

19 Lynch, Colonial Legacies in a Fragile Republic, 168–70, 135.

20 Ibid., 374, 375.

21 No. 72. In the Supreme Court of the United States. October Term, 1908. Mateo Cariño, Plaintiff in Error v. The Insular Government of the Philippine Islands. In Error to the Supreme Court of the Philippine Islands. Brief for the United States and the Insular Government, 56–57.

22 Cariño, Brief for Plaintiff in Error, 9.

23 Carino v. Insular Government, 212 U.S. 449 (1909).

24 Bagamaspad, Anavic, Hamada-Pawid, , and Balangoy, , A Peoples' History of Benguet Province (Philippines, 1985), 225.

25 Ibid., 229.

26 Ibid.; see also Habana, Olivia M., “Gold Mining in Benguet: 1900–1941,” Philippine Studies 9:1 (2001): 341; see also Wiber, Melanie G., Politics, Property and Law in the Philippine Uplands (Ontario, Canada: Wilfrid Laurier University Press, 1993), 35, on the “extended households” of wealthy Ibaloi.

27 Cariño v. Insular Government, Transcript of Record, 28–29.

28 Transcript of Record. Supreme Court of the United States. October Term, 1909. No. 16. John F. Reavis, Appellant vs. Jose Fianza et al. Appeal from the Supreme Court of the Philippine Islands. Filed September 2, 1907, 271–72. Reprinted by Making of Modern Law, U.S. Supreme Court Records and Briefs, 1832–1978. Hereafter, “Reavis v. Fianza, Transcript of Record.” Note: in my copy, the printed date and case number have been corrected by hand; the above date and number are the corrected details.

29 “The Benguet Consolidated Mining Co.,” Far Eastern Review (June 1907): 21.

30 Reavis v. Fianza, Transcript of Record, 1.

31 Ibid., 4.

32 Lopez, Salvador P., Isles of Gold: A History of Mining in the Philippines (Singapore: Oxford University Press, 1992, commissioned by the Chamber of Mines of the Philippines), 50. On Whitmarsh see his entry in Shavit, David, The United States in Asia: A Historical Dictionary (New York: Greenwood Press, 1990), 524.

33 Reavis v. Fianza, Transcript of Record, 16.

34 Ibid., 2.

35 Ibid., 2, 50–52.

36 Lopez, Isles of Gold, 50.

37 Reavis v. Fianza, Transcript of Record, 67.

38 Ibid., 66.

39 Lopez, Isles of Gold, 46.

40 Reavis v. Fianza, Transcript of Record, 94.

41 “Baguio and Commission. Summer Seat of Government Ready for Occupancy. Good Prospects in Benguet,” The Manila Times, Jan. 16, 1903.

42 Habana, “Gold Mining in Benguet,” 6.

43 Reavis v. Fianza, Transcript of Record, 99.

44 Ibid., 100.

45 Reavis v. Fianza, Transcript of Record, 69.

46 Ibid., 99.

47 Ibid., 100.

48 Supreme Court of the United States. October Term, 1909. No. 16. John F. Reavis, Appellant vs. Jose Fianza et al. Brief for Appellant. Reprinted following the Transcript of Record by Making of Modern Law, U.S. Supreme Court Records and Briefs, 1832–1978, 26. Hereafter “Reavis, Brief for Appellant.”

49 Reavis v. Fianza, Transcript of Record, 80–82.

50 Ibid., 122.

51 Ibid., 70.

52 “The Benguet Consolidated Mining Co.,” Far Eastern Review (June 1907): 21.

53 See Veracini, Settler Colonialism, on “perception transfer;” “narrative transfer;” and “transfer by conceptual displacement” (37, 41, 35–36).

54 Reavis v. Fianza, Transcript of Record, 164.

55 Burritt cited the fact that the 1903 Public Land Act had not yet been extended to the province of Benguet.

56 Reavis v. Fianza, Transcript of Record, 179; Cariño v. Insular Government, Transcript of Record, 176.

57 Reavis v. Fianza, Transcript of Record, 179, 172.

58 Ibid., 174.

59 Lopez, Isles of Gold, 29.

60 Reavis v. Fianza, Transcript of Record, 179.

61 Ibid., 207.

62 Ibid., 194, 187.

63 Ibid., 189.

64 Ibid., 202.

65 Ibid., 203.

66 Reavis, Brief for Appellant, 4. Emphasis was theirs.

67 Ibid., 14.

68 Cariño v. Insular Government, Transcript of Record, 48, 47.

69 Reavis, Brief for Appellant, 26–27.

70 Cariño, Brief for Plaintiff in Error, 9.

71 Reavis, Brief for Appellant, 27–28. Emphasis was theirs.

72 Supreme Court of the United States. October Term, 1909. No. 16. John F. Reavis, Appellant vs. Jose Fianza et al. Brief in Reply Appellant. Reprinted following Transcript of Record by Making of Modern Law, U.S. Supreme Court Records and Briefs, 1832–1978, 2.

73 See Weaver, John C., The Great Land Rush and the Making of the Modern World, 1650–1900 (Montreal: McGill-Queen's University Press, 2004), 8187.

74 Ibid., 56.

75 Ibid., 137.

76 Cariño, Brief for Plaintiff in Error, 10.

77 Reavis, Brief for Appellant, 27. Emphasis was theirs.

78 Jenks, Albert Ernest, The Bontoc Igorot. Department of the Interior, Ethnographical Survey Publications, Vol. 1 (Manila: Bureau of Public Printing, 1905), 160.

79 Wiber, Politics, Property and Law in the Philippine Uplands, 56, 113. See also Habana, “Gold Mining in Benguet,” 10–11.

80 Wiber, Politics, Property and Law in the Philippine Uplands, 33.

81 Ibid., 99.

82 Soderstrom, Mark, “Family Trees and Timber Rights: Albert E. Jenks, Americanization, and the Rise of Anthropology at the University of Minnesota,” The Journal of the Gilded Age and Progressive Era 3:2 (2004): 179.

83 Ibid., 192.

84 Ibid., 190.

85 Beaulieu, David, “Curly Hair and Big Feet: Physical Anthropology and the Implementation of Land Allotment on the White Earth Chippewa Reservation,” American Indian Quarterly 8:4 (Autumn 1984): 287.

86 No. 72. In the Supreme Court of the United States. October Term, 1908. Mateo Cariño, Plaintiff in Error, v. The Insular Government of the Philippine Islands. In Error to the Supreme Court of the Philippine Islands. Brief for the United States and the Insular Government, 49–50.

87 Hall, Kermit L., “The Legal Culture of the Great Plains,” Great Plains Quarterly 12:2 (1992): 90.

88 “Report of the Chief of the Bureau of Non-Christian Tribes for the Year Ending August 31, 1902,” Appendix Q, 684.

89 Genetin-Pilawa, C. Joseph, Crooked Paths to Allotment: The Fight over Federal Indian Policy after the Civil War (Chapel Hill: University of North Carolina Press, 2014), 1415.

90 Sixth Annual Report of the Philippine Commission, 1905 (In Four Parts), Part 2 (Washington, DC: Government Printing Office, 1906), 58.

91 On “[p]rotection talk” see Benton, Lauren and Ford, Lisa, Rage for Order: The British Empire and the Origins of International Law, 1800–1850 (Cambridge, MA: Harvard University Press, 2016), chap. 4.

92 See chap. 5, on The Emergence of a Colonial Land Policy” of Hoxie, Frederick E., A Final Promise: The Campaign to Assimilate the Indians, 1880–1920 (Lincoln: University of Nebraska Press, 1984).

93 Pommersheim, Frank, Broken Landscape: Indians, Indian Tribes, and the Constitution (Oxford: Oxford University Press, 2009), 125. See also Genetin-Pilawa, Crooked Paths to Allotment, 21; and Bruyneel, Kevin, The Third Space of Sovereignty: The Postcolonial Politics of U.S.-Indigenous Relations (Minneapolis: University of Minnesota Press, 2007), 8487, on the historical significance of the U.S. Supreme Court case Lone Wolf v. Hitchcock.

94 Genetin-Pilawa, Crooked Paths to Allotment, 112.

95 Cariño v. Insular Government, Transcript of Record, 182.

96 Cariño, Brief for Plaintiff in Error, 20.

97 Ibid., 19.

98 Supreme Court of the United States. October Term, 1909. No. 16. John F. Reavis, Appellant vs. Jose Fianza et al. Brief for the Appellees. Reprinted following Transcript of Record by Making of Modern Law, U.S. Supreme Court Records and Briefs, 1832–1978, 11.

99 Carino v. Insular Government, 212 U.S. 449 (1909).

100 Reavis v. Fianza, 215 U.S. 16 (1909).

101 Both the Cariño and Fianza opinions were cited in a variety of other cases, mostly in property disputes in U.S. overseas territories.

102 Wilkins, David E., American Indian Sovereignty and the U.S. Supreme Court: The Masking of Justice (Austin: University of Texas Press, 1997), 166.

103 Ibid., 168.

104 Ibid., 170.

105 Ibid., 175; Tee-Hit-Ton Indians v. United States, 348 U.S. 272 (1955). PETITION. File Date: 4/19/1954. 15 pp. Term Year: 1954. U.S. Supreme Court Records and Briefs, 1832–1978. Gale, Cengage Learning. University of Notre Dame-Law School (accessed July 19, 2018), http://galenet.galegroup.com.proxy.library.nd.edu/servlet/SCRB?uid=0&srchtp=a&ste=14&rcn=DW101618608, 11. Hereafter “Tee-Hit-Ton Indians v. United States, Petition.”

106 Wilkins, American Sovereignty and the U.S. Supreme Court, 173.

107 In the dissent were Justices William O. Douglas, Felix Frankfurter, and Earl Warren.

108 Tee-Hit-Ton Indians v. United States, Petition, 7.

109 Ibid., 10, 11.

110 Ibid., 9.

111 Tee-Hit-Ton Indians v. United States, 348 U.S. 272 (1955).

112 Ibid.

113 Ibid.

114 Ibid., fn. 18.

115 Ibid.

116 Habana, “Gold Mining in Benguet,” 12.

117 Lynch, Owen, “Concepts and Strategies for Promoting Legal Recognition of Community-Based Property Rights: Insights from the Philippines and Other Nations” in Communities and Conservation: Histories and Politics of Community-Based Natural Resource Management, eds. Brosius, Peter J., Tsing, Anna Lowenhaupt, and Zerner, Charles (Walnut Creek, CA: AltaMira Press, 2005), 401. See also Lynch, , “Land Rights, Land Laws, and Land Usurpation: The Spanish Era (1565–1898),” Philippine Law Journal 63 (1988): 82111.

118 Habana, “Gold Mining in Benguet,” 12.

119 Ibid., 10, 14.

120 Bagamaspad, Hamada-Pawid, and Balangoy, A Peoples' History of Benguet Province, 229.

121 Ibid., 226–27; Ventura, “From Small Farms to Progressive Plantations,” 476.

122 Habana, “Gold Mining in Benguet,” 11.

123 Wiber, Politics, Property and Law in the Philippine Uplands, 131–32.

124 Lynch, Colonial Legacies in a Fragile Republic, 444.

125 Hoxie, A Final Promise, 161.

126 Genetin-Pilawa, Crooked Paths to Allotment, 15.

127 Abinales, P. N. and Amoroso, Donna J., State and Society in the Philippines (Lanham, MD: Rowman & Littlefield Publishers, 2005), 125

128 Habana, “Gold Mining in Benguet,” 13. See also Tapang, “Innovation and Social Change.”

129 Bruyneel also makes this point. See The Third Space of Sovereignty, 88–89.

130 Ibid., 65.

131 Hoxie, A Final Promise, 164–65.

132 Kramer, The Blood of Government, 75–76; Delmendo, Sharon, The Star-Entangled Banner: One Hundred Years of America in the Philippines (New Brunswick, NJ: Rutgers University Press, 2004), 43.

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