Land represented a nexus for Indigenous customary claims in Mexico’s colonial courts across three centuries of Spanish rule. The Crown recognized the lands of the Native nobility, who were considered Mexico’s “natural lords,” as entailed estates under the designation of cacicazgo. The question of which noble lineages controlled what lands provoked much controversy, as did the use-rights of commoners. From the 1530s through the 1570s, in response to challenges mounted by Native rivals or Spanish colonists, Native people appeared in front of the Real Audiencia to claim and dispute ownership or use-rights based on pre-Hispanic custom. They often substantiated their claims with recourse to painted histories and maps. Due to the moral authority that Spanish judges accorded to pre-Hispanic institutions and the practicality of maintaining aspects of Indigenous land tenure and labor, they often affirmed Native claims based on custom (Kellogg, 1995, pp. 45–51; Menegus Bornemann, 1994a, 1994b; Ruiz Medrano, 2010, pp. 31, 38–39; Villella, 2016). In doing so, though, they did not simply affirm established Native rights; they produced new ones by incorporating Native customs into a Spanish normative order (Herzog, 2013).

Native customary claims to land fell off considerably by the end of the sixteenth century, in part because of Spanish officials’ changing attitudes toward the pre-Hispanic past and Indigenous forms of knowledge, and also because of the exploitative economic demands of Spanish officials and colonists, and the ravages of epidemic disease. In response to a precipitous decline in the Indigenous population, and with the ambition of nucleating the survivors into concentrated settlements to facilitate evangelization, organization of corvée labor, and tribute collection, the missionaries spearheaded a program of forced resettlement, known as congregación or reducción, depending on the region. This took place in two waves, the first in the mid-sixteenth century from 1550 to 1564, and the second from the 1590s through the first decade of the seventeenth century (Borah & Cook, 1963; Cline, 1949; Cook & Borah, 1971). Congregación and population decline displaced Native people from their ancestral lands and left much of it vacated, opening local communities to expropriation by Spanish colonists (García Martínez, 1987). In order to stem the chaotic expansion of Spanish property, and harness land distribution and titling to royal power, Philip II issued a royal cédula (decree) in 1591 requiring Spanish colonists to present their land claims and titles so that they could be validated by Spanish law. If they possessed land but had no title, they could acquire one for a fee. Any vacant lands without proper title—known as tierras baldías, or simply, baldíos—would escheat to the Crown so that they could be used, sold, or distributed at royal discretion (Menegus Bornemann, 1994b; Solano, 1984, pp. 273–274). The fees would go into the royal treasury to ameliorate the Crown’s ailing finances. The royal land titling program, known as the composiciones de tierras, persisted through the seventeenth century, allowing for a massive transfer of lands from Indigenous to Spanish control (Menegus Bornemann, 1994a; Ots Capdequí, 1946).

Native communities went to court to defend their lands, and they presented varied kinds of evidence to prove possession and make customary claims to land use and tenure, including Spanish legal instruments that recognized Indigenous possession. Native people also resorted to local knowledge and forms of representation to support their claims, despite Spanish disinclination to take such evidence seriously. These included maps that blended European and Indigenous styles, and a genre of painted histories and genealogies known as the Techialoyan codices (Wood, 2007, 2012). Native towns also generated a written genre of Native-language documents known as primordial titles that recounted the migration of the community’s founding ancestors, the marking of territorial boundaries, the consecration of the community’s Church, and the establishment of the Native town council (cabildo) (Cortés Márquez & Reyes García, 2004; Haskett, 2005; Oudijk, 2003; Menegus Bornemann, 1994b, p. 208; Oudijk & Romero Frizzi, 2003; Romero Frizzi & Vásquez Vásquez, 2003, 2011; Sousa & Terraciano, 2003). Across these encapsulations of Indigenous memory, Native writers and painters reimagined antiquity, the anchor of custom, by braiding together pre-Hispanic and colonial symbols, histories, and chronologies (Megged & Wood, 2012). Despite Native efforts to stem the tide of dispossession, however, the composiciones de tierras continued to transform Indigenous lands into Spanish haciendas and ranches in many regions of New Spain and across Spanish America (Goyas Mejía, 2015; Borchart de Moreno, 1980; Florescano, 1971, p. 44; Glave, 2008; Rivera Marín de Iturbe, 1983; Torales Pacheco, 1990).

The recovery of the Indigenous population at the end of the seventeenth century combined with the Crown’s desperate need to generate revenue to pay for its expensive imperial wars created a shift in land policy, which in turn reinvigorated Native claims to land.Footnote 1 Until 1691, the policy of composición applied to Spanish and mestizo colonists, but from 1692 forward, the Crown widened its net to require Native towns to title their lands. In order to do so, they needed to prove possession since time immemorial and pay a “voluntary donation” to the Crown to have their lands surveyed and their boundaries marked. Royal regulations required that communal lands, known in Spanish as fondo legal or bienes de comunidad, should measure at minimum 600 varas in diameter, from the village church or the center of the pueblo outward. Any territory beyond the limits of officially designated communal land lacking documentation of ownership had to be titled for a fee. If not, it could be declared royal land, and subject to confiscation and public auction (Wood, 1990). Native participation in the composiciones of the 1692–1696, 1707–1709, 1717–1718, and the composiciones that followed in the rest of the eighteenth century, produced a range of results, including Native land titles, reduction of Native communal lands, and official recognition of customary and “irregular” forms of land tenure that sat at the margins of the law (Carrera Quezada, 2015; López Castillo, 2010, 2014; Mendoza, 2011, pp. 54–59; Menegus Bornemann, 2017; Pastor, 1987; Radding, 1997, pp. 171–207, 2005, pp. 89–116; Torre Ruiz, 2012; see also Radding’s chapter in this volume).

Prior to the eighteenth century, most Native communities possessed land, rather than owned it, since securing or producing a title of ownership was more difficult than claiming possession in Spanish courts (Owensby, 2008, pp. 90–129). Possession, in fact, constituted a primary means by which individuals and communities held land in the Spanish empire, and the Mediterranean-Atlantic World more broadly (Bastias Saavedra, 2020; Greer, 2018; Seed, 1995). The Siete Partidas—a statutory code from medieval Castile that strongly influenced legal practice in Spanish America-defined possession as lawfully entering, occupying, and holding a piece of land, a concept that was distinct from ownership, which required legal title. Central to this definition was the absence of force or coercion, which made a claim to possession unlawful and unjust. Evidence of possession included longstanding use and cultivation, manifested by crops or structures.Footnote 2 The community’s judgment often determined the legitimacy of claims to possession in courts of law, anchored in the expression “since time immemorial.” Whereas titles carried heavy weight as evidence of ownership, so too did custom—local practice as accepted and recognized by the community.

This chapter analyzes Native claims to customary land tenure and possession since time immemorial in response to the composiciones de tierras and other challenges to communal territory in the Mixteca region of Oaxaca. The land titling program dovetailed with the expansion of the livestock economy, population growth, and an increase in tribute and taxes during the late seventeenth and eighteenth centuries. In a context of increasing scarcity and pressure to normalize landholding, many Native communities went to court with competing claims to land. But conflict and litigation were not the only strategies deployed by Native authorities to address the need for subsistence and income. Indigenous pueblos also came together to create plural ownership that allowed them to pool resources and share territorial jurisdiction. Partnership contracts—the form in which plural ownership was legally instantiated—were more legible to Spanish authorities than codices, maps, and primordial titles, and had practical benefits since they were much less costly than litigation. Through partnership contracts, Native authorities preserved or extended the territorial expanses of their communities, challenged or whittled away at the property of powerful caciques, and transformed customary claims into new legal rights with an eye to securing the territorial integrity of their communities for the future.

Ñudzahui Territory, Land Tenure, and a 1690-Partnership Contract

Oaxaca provides a counter-narrative to Native dispossession during the early rounds of composiciones de tierras of the sixteenth and seventeenth centuries. In fact, most Indigenous nobles and communities in Oaxaca maintained their landholdings from the conquest until the end of the colonial period. Oaxaca’s economy, which was dominated by commerce and fueled by Indigenous production rather than mining and Spanish-controlled haciendas, provides a central explanation for this trend (Chance, 1989; Menegus Bornemann, 2009; Pastor, 1987; Taylor, 1972; Arrioja Díaz Viruell, 2011).Footnote 3 In the case of the Mixteca region, the few Spaniards who settled there rented land from Native nobles and communities and focused their energies on trading in the valuable products of native labor, most notably, cochineal dyestuff, wheat, cattle, leather, and cloth (Romero Frizzi, 1990).

The persistence of Native landholding meant that community land tenure remained deeply informed by Indigenous notions of territory, which did not conform to clearly delineated boundaries. In the Mixteca, this fungible relationship was expressed by the Ñudzahui institution of the yuhuitayu, sometimes shortened to tayu, a political entity made up of two communities (ñuu) joined through the marital alliance of lords from each. The yuhuitayu was not a geographical designation, as was a European kingdom or señorial estate, but rather a shifting mosaic of constituent communities and sub-units, known as ñuu, that periodically realigned depending on élite inter-marriage and the tributary claims of their lords. Often, they were not contiguous territories nor evenly distributed geographically. A small settlement in close proximity to the palace complex of one yuhuitayu might have been subject to or affiliated with another yuhuitayu. Autonomy often defined the relations of the ñuu within the yuhuitayu and between individual ñuu and the seat of the yuhuitayu. Although lordly marriage served to combine the resources of the constituent ñuu, it did not compromise the autonomy of either. Sometimes ñuu seceded from yuhuitayu and shifted allegiances to others (Dahlgren, 1954; Spores, 1974).

The yuhuitayu as a form of territorial and political organization endured well into the eighteenth century, though it had been modified somewhat by the late sixteenth and early seventeenth-century process of congregación, spearheaded by Dominican missionaries who were the dominant religious order in Oaxaca. The effort to impose the Spanish administrative arrangement of the cabecera (administrative and parish seat, literally “head town”) and its sujetos (“subjects”), which were geographically proximate and politically subordinate villages or dependencies, and whose residents owed tribute and labor to the authorities of the cabecera met with only modest success. Dispersed settlement patterns persisted, and many ñuu maintained their identities, locations, and lands. The territorial imprint of the yuhuitayu persisted, as did its political meaning, as evidenced by the pervasive use of the term in colonial-era Ñudzahui-language documentation (Martín Gabaldón, 2018a, 2018b; Spores, 1967; Terraciano, 2001, pp. 119–120).

Although it did not affect the territorial organization as much as Spanish officials had intended, the imposition of the cabecera-sujeto model had important political implications for inter-community relationships. Spanish officials designated some yuhuitayu, and not others, as cabeceras, and recognized some lords (yya) as caciques by granting them señorial title to land (cacicazgos), while discounting the claims of others. The yuhuitayu that were assigned the lesser status of subject towns resisted the imposition of new hierarchies strongly, bringing legal cases to the Audiencia of Mexico from the 1550s forward in which they argued for the right to “secede” from their cabeceras. In their petitions, they railed against paying tribute and performing services for cabeceras and caciques, and they were aggrieved that their neighbors, as parish seats, had become the centers for sacred rituals (Martín Gabaldón, 2018a, 2018b; Pastor, 1987, pp. 175–178; Terraciano, 2001, p. 124). For their part, caciques and cabeceras took advantage of their status, and competition between yuhuitayu took new forms, including legal disputes over the boundary lands that separated communities, which according to Ñudzahui lienzos (Indigenous cartographic histories painted on cloth), included sacred sites (Aguilar Sánchez, 2015/2016, 2020; Van Doesburg, 2001). These conflicts heated up at the end of the seventeenth century as the Indigenous population recovered from its devastating decline during the previous century, and as the livestock economy expanded, putting new pressures on land (Spores, 1984, pp. 210–225).

Royal legislation at the end of seventeenth century contributed to the tensions. In 1687, the Crown issued a cédula that granted subject communities the same expanse of lands that had previously been reserved for cabeceras: 600 varas radiating outward from the town church. The idea was to provide expanding settlements with the territorial foundation necessary for subsistence agriculture and pastureland. Consequently, many subject communities built churches, had their land surveyed, and declared themselves independent cabeceras in their own right, to the chagrin of the authorities of their former cabeceras (Menegus Bornemann, 2009, 2017, pp. 62–72).

Litigation in Spanish courts provided one answer to these conflicts, though not a desirable one because it was expensive and time-consuming. Native authorities turned to other means to address land disputes, pivoting away from Spanish courts and attempting to resolve conflict within the ambit of Native jurisdiction. A 1690 Ñudzahui-language notarial record documenting a land-use agreement between the communities of San Juan Sayultepec and San Andrés Sinaxtla provides an example.As occurred with many Native-language legal records, the 1690 agreement was sewn into a voluminous four-hundred and thirty-eight-page land dispute between the two communities, adjudicated in a Spanish court across three and a half decades, between 1713 and 1749.Footnote 4

The 1690 Ñudzahui-language record was a genre of contract, whose origins can be traced to the concept of partnership (societas) in Roman Law. In contrast to commercial contracts, which were reciprocal in nature (one party does something to receive something else from another party), and presumed an opposition of interests, the purpose of partnership contracts was to pool resources, such as property or labor, for a common purpose, and sometimes against the interests of a third party. Partners in societas were friends and allies rather than antagonists (Zimmerman, 1996, pp. 451, 454–455).

Through the Ñudzahui language contract, the Native authorities of San Juan Sayultepec and San Andrés Sinaxtla aligned the relationship among yuhuitayu into the Spanish relation of partnership. In the text of the contract, they referred to their communities as “chayu” (a variation of “tayu,” short for yuhuitayu), instead of using the Spanish designations of cabecera and sujeto. For place names, they used Christian-Ñudzahui hybrids, rather than the Christian-Nahuatl names imposed on their communities by Spanish and Mexica conquerors: San Juan Sayultepec was written as “Sa Juan tiyuqh” and San Andres Sinaxtla, as “San Andres atata.” (Jansen & Pérez, 2009, p. 339). The Native authorities stated that the purpose of the contract was to protect the agricultural lands of the two communities against the territorial predations of a third community, Santa María Asunción Nochixtlan, an important pre-Hispanic and colonial-era commercial and political center. In the 1680s, Nochixtlan, which had been part of the Spanish province of Teposcolula-Yanhuitlan, became a Spanish administrative seat, with jurisdiction over the pueblos of Tilantongo, Chachoapan, Etlatongo, Huaclilla, Tejutepec, Tiltepec, and Jaltepec (Spores, 1984, p. 98). The concentration of Spanish and Indigenous political power in Nochixtlan produced tensions with Sinaxtla and Sayultepec, powerful native communities in their own right. Perhaps emboldened by newfound status, the local authorities of Nochixtlan saw an opportunity for territorial expansion. In the text of the contract, the officials of Sayultepec and Sinaxtla expressed their common outrage that the natives of Nochixtlan sought to expropriate valuable irrigated land where corn fields cultivated by each community came together at the boundary among all three communities.

Through their partnership, the officials of Sayultepec and Sinaxtla joined together in common cause against another mutual antagonist: the cacique don Domingo de San Pablo. The narrative of the agreement devoted significant space to a shared past in which the communities united in “friendship” against the cacique and the authorities of the town of San Mateo Yucucuihi who made heavy demands of them, presumably in labor and tribute. The authorities of Sayultepec and Sinaxtla stated that they would no longer recognize don Domingo or any other Native lord as their cacique, and that “only the lord God and lord King are our lords.”Footnote 5 Their refusal to recognize the cacique’s customary authority and prerogatives represented a growing trend across the Mixteca. Economic and cultural transformations spurred by colonialism stoked these conflicts. Spanish entailment of cacicazgos in the early colonial period transformed don Domingo de San Pablo and other native lords in the region into a powerful rentier class who earned significant income from the lease of their lands to Spaniards, mestizos, and other Natives. Don Domingo and other Ñudzahui caciques like him were often wealthier than the region’s Spanish merchants, and had the goods to show it: luxurious European clothing, horses, high-quality wooden and silver home furnishings, and elaborate Christian art. Their easy assimilation to Christianity and migration to urban centers where they could live comfortably off of their earnings exaggerated the social distance between themselves and Ñudzahui commoners. Caciques’ detachment from their pueblos loosened the reciprocal obligations that bound them to their communities, inflamed resentments, and led to what one historian has called the eighteenth-century “revolt against the caciques.” The revolt was primarily a legal one, in which pueblos took caciques to court to protest unjust demands and abuses of authority (Pastor, 1987, pp. 166–175).

Disavowal of don Domingo in the contract may have had something to do with the land under dispute, in that it could have pertained to his cacicazgo. By claiming that they did not recognize don Domingo as their cacique, the authorities of Sinaxtla and Sayultepec cleared the way to claim possession of the land for their communities, which if it had belonged to don Domingo, they might have worked through usufruct in the past. The remainder of the contract recounted legal procedures typical for recognizing possession, including a boundary survey and placement of boundary markers in order to preclude controversy in the future. The fact that the native authorities of the two communities conducted a land survey and produced a legal agreement on their own, without the presence of a Spanish court functionary, points to an autonomous Native forum and set of procedures for addressing conflicts over boundary lands.

The agreement closed with a reassertion of friendship and partnership. Behind the aspiration of social harmony, however, lingered some doubt. The contract closed with the stipulation that if any member of either community were to disturb the peace, the officials of either pueblo could appeal to the Real Audiencia (the highest Spanish court in the land), which would insure the maintenance of the agreement. With this clause, the signatories concurred that only the King’s justice could enforce the partnership between the communities.Footnote 6 This legal instrument was written, then, with an eye to preventing conflict in the future, not only with Nochixtlan but also between its authors, the communities of Sinaxtla and Sayultepec. Although it was written in the Ñudzahui language and archived in the town halls of the signatories, the Native authorities produced it with the possibility in mind of presenting it to a Spanish judge as evidence of possession in the boundary lands, the most liminal and vulnerable part of a community’s territorial grant, and where friends of the moment could become enemies in the future. This indeed came to pass. As discussed above, the officials of San Juan Sayultepec submitted the agreement as evidence in the case, arguing that the natives of San Andrés Sinaxtla had broken its terms by claiming the land as their own.

The 1690 partnership contract written and signed by the Native authorities of Sayultepec and Sinaxtla bore the imprint of Indigenous territorial and political organization. At the same time, it reveals how the European legal category of possession shaped inter-communal relations in the boundary lands between Ñudzahui communities, and how customary claims to land could be used to instantiate new rights through written agreements. The ephemerality of the agreement, and its incorporation into a future land dispute points to an important dynamic in Oaxaca’s agrarian history during the late seventeenth and eighteenth centuries. Partnership contracts were but one component in longue-durée struggles over land. Although they were supposed to endure, they often did not. Rather than etching the contours and conditions of communal land in stone, they represented a reprieve from open conflict and a space for the re-negotiation of political and territorial relationships. This process was not unique to colonial Mexico but rather occurred throughout the Atlantic World where partnership contracts constituted a strategy used by rural communities to negotiate land rights (Blaufarb, 2010; Herzog, 2015). In this regard, the authorities of Sayultepec and Sinaxtla were actively contributing to an Atlantic World legal culture as they forged their Ñudzahui-language agreement in their rural town hall in the Mixteca.

Partnership and Plural Ownership in the Eighteenth-Century Composiciones de Tierras

The eighteenth-century composiciones de tierras provided an opportunity for Ñudzahui communities to reaffirm customary landholding patterns in their boundary lands, while creating new legal norms. Whereas the communities of Sayultepec and Sinaxtla achieved this temporarily within the ambit of Indian jurisdiction, the special court of land titling constituted a higher-order legal forum in which Native officials could negotiate customary access to boundary lands. In July of 1717, the Native authorities of the Ñudzahui communities of Tecomatlan and Magdalena Zahuatlan appeared before don Félix Chacón, Spanish magistrate of Teposcolula-Yanhuitlan with such a petition. The land bureau tasked with overseeing the composiciones de tierras—the Superintendencia del Beneficio y Composición de Tierras—had appointed Chacón as a judge to the royal commission of claims, titling, and sale of land and water in the district of Teposcolula-Yanhuitlan. In this role, he was tasked with overseeing agrarian matters, especially payment for the composiciones de tierras (Carrera Quezada, 2015). The court that he administered for this purpose was known as the Juzgado Privativo de Tierras (Torre Ruiz, 2012).

The Native authorities’ petition requested a license to form a partnership contract regarding possession of some land that lay in between their communities, much like the written agreements produced by Sayultepec and Sinaxtla. In the recent past, the Natives of each town had claimed the land as their own. With forensic detail, the officials related the Ñudzahui place names that the land encompassed, citing the river that contoured it, and the location of three crosses that served as boundary markers. The problem was that although both towns had asserted possession, in actuality, farmers from both communities planted corn on it, such that their crops were interspersed. According to Spanish law, occupation manifested by cultivation proved legal possession, so barring the existence of legal title to the land, this dispute would be difficult to resolve in court, a point that the Native authorities understood well. In order to preclude competing legal claims to the land and costly litigation in the future, the two towns had arrived at an agreement to share the land and preserve the custom of interwoven cultivation. Apparently, though, the agreement between the two communities was not enough, which is why they petitioned Judge Chacón to intervene and authorize their agreement. Through the flourish of the Spanish judge’s pen, the agreement would produce a relationship of joint-possession over the land, valid for all time, equal in force to a decision rendered by a civil judge. In short, the contract would fix the towns’ customary use of the boundary lands unless a third party produced a title to the land.Footnote 7

By 1717, the year that the officials of Tecomotlan and Zahuatlan petitioned Judge Felix Chacón to form the partnership, the population of the core region of the Mixteca Alta had jumped from 28,000 in 1660 to 42,000 in 1720, on an upward trajectory that increased to 76,000 by 1803 (Spores, 1984, p. 223). In the meantime, two rounds of composiciones de tierras had taken place, from 1692 to 1696, and 1707 to 1709, with a third underway from 1717 to 1718, sending Native caciques and communities to Spanish courts to obtain titles to land and firm up their territorial boundaries. The trends that had pushed the communities of Sayultepec and Sinaxtla to form their partnership contract in 1690 had intensified: population growth, commercialization of agriculture, expansion of the livestock industry, increased pressure on land and resources, and an explosion of litigation over land.

As spelled out in their petition, the Native officials of Tecomotlan and Zahuatlan did not seek to clarify their boundaries in order to produce land titles for their pueblos. Rather, they hoped to maintain the custom of interwoven cultivation in their borderlands. As evident in their petition to Chacón, the Native officials surveyed the boundary lands and consulted with one another to hammer out some of the fundamental terms of the agreement. The composiciones de tierras provided them with a unique opportunity to give agrarian custom the force of law and protect landholdings from the predations of third parties, like caciques or larger pueblos.

Judge Felix Chacón was persuaded by the petition and granted the towns of Tecomotlan and Zahuatlan the license they sought to draw up the partnership contract.Footnote 8 From where he stood, maintaining peaceful relations between pueblos was always preferable to rancor and the threat of violence over boundary lands. Furthermore, whereas a primary goal of the composiciones was to make boundaries and titles, another goal, far more pragmatic—and opportunistic since it implied a fee—was to codify customary uses of land that sat on the margins of the law.

Partnership contracts regarding land tenure were as much an agreement about the nature of the partnership—the ties that bound Native communities to one another (and to the Spanish courts)—as about the relationship of the communities to the land. This was evident in the 1690 Ñudzahui-language contract between Sayultepec and Sinaxtla, in which the political purpose of the partnership was intertwined with the integrity of each community’s landed possessions at the boundaries. The partnership proposed by Tecomotlan and Zahuatlan was different in that the two communities had asked for recognition of an arrangement that did not align with the Spanish ideal of a territorially bounded community. Since the communities would be farming the lands together, the question of who would be responsible for material losses if one party did not uphold the agreement—in short, questions of harm, injury, liability, and enforcement—had to be taken into account. This required the intervention of a Spanish judge.

The partnership contract signed by the authorities of Tecomotlan and Zahuatlan entailed a promise to one another to uphold special rules and mutual obligations regarding land use. Preservation of customary agrarian practice, harmonious relations between the two communities, and collective possession of the land provided the contract’s stated purpose. The first of its five clauses indicated that the lands that the Natives of each pueblo cultivated would be the lands that they continued to cultivate without alteration. The language used to express this—“sin ynnovar en cosa alguna”—was also part of the medieval Spanish discourse of custom, which was double-edged: it preserved longstanding, continuous practice, but at the same time could be altered and established anew. Custom’s flexibility allowed for change and adaptation, but in this case, the Native authorities adopted a staunchly conservative posture toward it in their attempt to preclude any innovation. The fifth clause underscored the imperative to preserve custom by stipulating that if the Natives of one pueblo or the other had more or fewer crops in the commonly held lands, they should not try to sow them equally; instead, each pueblo should sow what they presently sowed even if some of the lands remained baldíos (uncultivated lands). The importance of maintaining the status quo “in order to avoid disputes” was accentuated by the risk implied in leaving untitled lands uncultivated. The policy of the composiciones program held that untitled and uncultivated land could be confiscated by the Crown via invocation of eminent domain, to be redistributed according to royal discretion. Despite the risk, the contract held that the land would remain untitled: the second clause stated that neither pueblo nor Natives therein could claim legal title to the lands. The Indigenous authorities appear to have counted on the contract as a form of insurance against expropriation, a process that could be triggered by an amparo, or judicial stay based upon legal documents that provided evidence of possession. The objective of maintaining good relations between the pueblos and avoiding litigation was telegraphed clearly through the contract’s fourth clause, which maintained that the pueblos “must conserve and continue always the peace, union, and law-abiding manner in which they have lived without disputes.” The fifth clause sought to preserve the peace by precluding the land invasions that were increasingly common in the region: each pueblo would possess and continue to possess its parcels without entering into one another’s lands.

At the same time that it aimed to shore up horizontal and equitable relations between the pueblos, the contract reinforced the hierarchies of status and power that structured Ñudzahui communities. The fifth and final clause prescribed punishment for any member of the pueblo who broke the agreement. The punishments varied according to social status. If the perpetrator was a town notable (principal), he would be fined 100 pesos in common gold (oro comun), half destined for the judge of the Real Camara and half for the compliant party. If the perpetrator was a commoner (macehualli), the punishment would be 200 lashes. This was serious business. Two-hundred lashes constituted common punishment for highway robbery, murder, and sedition, and could easily lead to the death of the person to whom it was applied. The disparity in punishment was in keeping with Spanish criminal law, which applied punishment unequally according to social rank, and advised harsher punishment for commoners.Footnote 9

Perhaps most importantly, the contract required each pueblo to renounce its own jurisdiction over the land and transfer jurisdiction to one other in order to produce joint-jurisdiction. Additionally, each pueblo had to renounce legal claim to the lands and transfer possession to one another to produce joint-ownership and remain “equal pueblos.” Property and jurisdiction were separate but related legal categories as applied to Indigenous communities. Property pertained to the community land base, and jurisdiction to authority over the people and territory of the community. Joint-ownership meant that both communities possessed the land. Joint-jurisdiction implied authority over the land, the capacity to determine its use, and the power to punish those who transgressed the laws that applied to it. The clause about joint-jurisdiction was in keeping with transatlantic developments in legal agreements regarding collective land tenure in which the emphasis was as much on the right to administer common lands and resources as a means of conserving and defending them from encroachment by third parties as it was on possession and ownership (Ingold, 2018).

The inter-pueblo partnership contract between Zamotlan and Tecomotlan created during the composición program was one among several produced during the early eighteenth century.Footnote 10 Taken together, the contracts represented attempts by Native authorities to short-circuit conflict and litigation over land, as well as expropriation by the Crown and third parties, like caciques or more powerful pueblos. They also served to maintain aspects of customary agrarian practice rooted in the yuhuitayu, while accommodating the expansion of the livestock economy. At the same time, the contracts instantiated a logic of debt—particularly individual responsibility for joint-liability—into local relations of land tenure. Joint liability meant that every member of the pueblo had to comply fully with the contracts’ stipulations, even though the document was signed only by the Native officers. And any member of the pueblo who broke the agreement had to pay for their transgression, but with distinct penalties based on social status. In this light, partnerships of co-ownership did not represent an assertion of egalitarian communalism against powerful local landholders and state actors. Collective land tenure had many faces, depending on the laws that framed them, and the underlying agrarian relations that gave them shape.

Partnership, Plural Ownership, and Cacicazgos

Native authorities also used partnership contracts to transform customary use-rights of cacique lands into joint-possession, thereby expanding and securing their land base at the expense of cacicazgos. As Margarita Mengus Bornemann has shown, almost all communal land in the Mixteca fell under the designation of propio, lands used to sustain the cabildo, and the tax and tribute obligations of the community. The pueblos of the region do not appear to have held tierras del común repartimiento, which in other parts of Oaxaca and New Spain were distributed to individual families for their subsistence. Instead, Native commoners often enjoyed usufruct rights on cacique lands, which they cultivated for their own use in exchange for rent paid in specie or labor to the cacique. These relationships were not written down or contractual, but regulated according to custom. During the composiciones de tierras, some of these pueblos claimed that they possessed the land since time immemorial and should therefore be given title. They insisted that they did not recognize the authority of any caciques, only that of the Spanish king. Claiming land in this way was strategic since usufruct rights were distinct from possession. According to Spanish law, usufruct encapsulated the right granted by a proprietor to someone to work his or her land usually in exchange for labor or fees. Even if dependent laborers (terrazgueros) had worked the land for decades or even centuries, they could not claim it through possession because it belonged to someone else. Nevertheless, communities of terrazgueros seized upon the opportunity of the composiciones to claim the land through immemorial possession. By disavowing their caciques, they rejected the basis of the cacique’s right to their labor and the land. Through this legal sleight of hand, they transformed customary usufruct rights into ownership, making the cacique’s land their own (Menegus Bornemann, 2017).

Two partnership contracts from the Mixteca Alta district of Tlaxiaco show how communities and caciques disputed and resolved their competing claims to land outside the confines of the composición program, and in a region in which land rights were especially layered and complex. During the pre-Hispanic period, Tlaxiaco was one of the largest and most powerful yuhuitayu of the Mixteca. Its territory encompassed lands in different ecological niches, including cold, temperate, and tropical, allowing for agricultural complementarity and the production of diverse trade goods. It was also a multi-ethnic polity, comprised of a majority Mixtec population, with Triqui and Nahua minorities. Compound lordship defined its political organization, with many yya (lords) controlling specific territories through shared or confederated authority (Martín Gabaldón, 2018a, 2018b, pp. 44–46).

After the congregaciones of the late sixteenth century, Tlaxiaco became a cabecera with multiple subject communities, some of which were cabeceras in their own right, making its jurisdiction layered and at times, conflictive. Due to its strategic location, it became a center for trade, and its fertile lands, especially a territory known as the cañada of Yosotiche, made it a center for sugar production, livestock grazing, and agricultural production more broadly. During the eighteenth century, the cabecera of Tlaxiaco rented the rich agricultural lands of Yosotiche to Spanish sugar producers, positioning it as one of the most important proprietors in the Mixteca region (Martín Gabaldón, 2018a, 2018b; Pastor, 1987, pp. 181–188). Tlaxiaco’s commercial success can be explained not only by its location and the quality of its lands but also by its relationship with its subject communities, which was more cooperative and complementary and less hierarchical than that of other yuhuitayu of the Mixteca region. Each community managed grazing and agricultural lands to the benefit of the whole, contributing to a generalized prosperity (Martín Gabaldón, 2018a, 2018b, p. 63).

Tlaxiaco’s strength was counterbalanced by the multiple cacicazgos of the region, which concentrated power and wealth, and created additional layers of authority. The compound lordship of the pre-Hispanic period may explain this phenomenon of plural cacicazgos. In some cases, subject pueblos of Tlaxiaco and other cabeceras were embedded within the territorial limits of cacicazgos. Notably, San Pedro Mártir Yucuxaco, San Juan Ñumi, San Antonino, San Sebastián Almoloya, and Santo Domingo, all subject towns of Tlaxiaco, were located within the cacicazgo of don Pedro de Chávez y Guzmán, making them subject to the authority of both the cabildo of Tlaxiaco and the Chávez family. During the sixteenth and seventeenth centuries, various members of the Chávez family served in the cabildo of Tlaxiaco, making the body an instrument of lordly power (Martín Gabaldón, 2018a, 2018b, pp. 43, 59).

In the eighteenth century, the Chávez family’s hold on regional power began to wane, as the cabecera of Tlaxiaco and many of its subject communities came to define their interests against those of the caciques. This local trend tracked with a broader regional pattern in which cacicazgos across the Mixteca found themselves in crisis by mid-century due to challenges from Spaniards and Native commoners. As the livestock economy expanded, caciques leased their land to other caciques, Native commoners, mestizos, and even religious orders, some for cultivation, but most for grazing. The rent of cacique lands increased fourfold from 1671 to 1730, with a marked increase from 1700 to 1730. Many of the most significant renters were Spanish ranchers, who often sought to turn the land they leased from caciques into their own property by making dubious claims in court. For the most part, the caciques successfully defended their cacicazgos, but at the high price of endless legal fees. By 1740, almost all of the Mixtecan cacicazgos were embroiled in some form of litigation over land, a process that seriously undermined their economic solvency (Pastor, 1987, pp. 172–173). Not only did they face challenge from Spaniards but they also faced challenges from communities of terrazgueros and subject communities located on their lands. Sometimes caciques rented the boundary lands of their subject communities, sending Native authorities to the courts to cry foul.

The caciques of Tlaxiaco played their part in this process. Between 1714 and 1742, don Pedro Martín Chávez de Guzmán entered into seven rental agreements.Footnote 11 One of them, signed in 1723, authorized the rent of lands named Yosoñama to Leonor de Aguirre, a wealthy resident of Tlaxiaco, so that she could use it to establish a ranch for cattle, sheep, and goats. Yosoñama sat within the limits of the pueblo of San Juan Ñumi, whose territory was embedded in Chávez’ cacicazgo. In addition to an annual fee of twenty pesos, she was expected to pay for all of the improvements to the land required for the founding of the ranch. Like most rental agreements, it was valid for a period of nine years, in this case, until 1732.Footnote 12

Doña Leonor’s ranch disappeared from notarial records after the 1730s, and its fate remains unclear. It does appear, though, that ownership of the lands called Yosoñama, nested within the concentric circles of San Juan Ñumi, Chávez’ cacicazgo, and the cabecera of Tlaxiaco, was muddy enough that the municipal authorities of Tlaxiaco attempted to rent the lands in 1741 to don Juan Antonio de Ladesa, the lieutenant of the alcalde mayor (Spanish magistrate) of Teozacoalco, for nine years at the rate of seventeen pesos per year.Footnote 13 This set off a land dispute among the municipal authorities of Tlaxiaco, San Juan Ñumi, and don Pedro Chávez. In 1742, the dispute gave rise to a partnership contract in which the municipal authorities of Tlaxiaco and San Juan Ñumi claimed joint possession of the land for cooperative use, against current and future claims of the Chávez family.Footnote 14

Tlaxiaco and Ñumi had not always enjoyed a cooperative relationship. In their petition for a license to form the contract, the authorities of both towns recounted how since August of 1742, the two pueblos had been engaged in litigation over Yosoñama. The officials of Ñumi asserted that under pressure from don Pedro Chávez, they entered a claim to Yosoñama in court, implying that Chávez was angling for a land grab from Tlaxiaco. For their part, the cabildo of Tlaxiaco defended what they claimed was their right to Yosoñama. To put an end to the dispute, Tlaxiaco agreed to give Yosoñama to San Juan Ñumi, but only under the condition that villagers from Tlaxiaco could continue to enjoy the fruits of the land through usufruct, not rent. In fact, they insisted that the land could not be rented at all. In short, the partnership contract would transform lands that the cacique don Pedro Chávez had formerly claimed as his own to lease out for ranching to agricultural land jointly held by Tlaxiaco and Ñumi.

The problem was that the authorities of Tlaxiaco had already tried to claim the land as their own and rent it to don Juan Antonio de Ladesa. To address this problem, the contract stipulated that Ladesa would have to remove his livestock by June of 1743. By ceding the land to Ñumi, a community that did not have a rental contract with the Spanish rancher Ladesa, the cabildo of Tlaxiaco did not have to break its contract, and Ladesa and his animals could be sent packing. Once the land was free of livestock, the two pueblos could strengthen their claim to possession by putting the land under cultivation for the necessities of each community, one of the stated purposes of the partnership, and a surefire way to protect the land from expropriation by the Crown.

The other crucial part of the agreement was that neither pueblo would recognize any of the Chávez family as their caciques. As discussed earlier, disavowal of cacique authority represented a strategy used by communities to claim cacical lands through the composiciones. At the same time, relations among Tlaxiaco and its subject communities and the Chávez family had been souring for decades. From 1715 to 1734, Tlaxiaco and some of its subject communities, including San Juan Ñumi, formed a partnership to rent pasture land to a religious order, the Compañia de Jesús del Colegio de la Nueva Veracruz. In the 1715 contract, don Pedro de Chávez de Guzmán and his brother Miguel Chávez formed part of the partnership. Afterward, they did not.Footnote 15 It appears that Tlaxiaco and Ñumi had either cut the Chávez brothers out of the agreement or claimed the land as their own. And in 1723, the pueblo of San Martín, which like San Pedro Ñumi was embedded within Chávez’ cacicazgo, sought an amparo (writ of protection, or judicial stay) to protect communal lands in their possession from Chávez’ claims.Footnote 16 One year later, Chávez agreed to “donate” the lands under dispute to San Martín, and allowed the pueblo to maintain its writ of amparo, insuring that its possession of the lands would be respected in the future.Footnote 17 The resolution of the dispute raises questions. If the pueblo of San Martín possessed the lands, why did Chávez need to donate them? Perhaps Chávez preferred this extrajudicial arrangement to the costly litigation that a full-blown land dispute entailed. Indeed, Chávez appeared to be facing pressures from many sides. During the same year, the cabildo of Tlaxiaco gave power of attorney to an alcalde (magistrate) and principal of their community to represent them in the Real Audiencia in a land dispute against Chávez.Footnote 18

The 1742 partnership contract between Tlaxiaco and Ñumi represents a moment, then, in this long conflict between pueblos and caciques. Perhaps the power-sharing among the multiple cabeceras of the region and the more cooperative relations among subject communities facilitated a collective stance against the cacique. This spirit of cooperation for mutual benefit came through in the conclusion of the contract, which summed up its purpose: to end their legal dispute over Yosoñama, farm the land together for their common necessities, never rent the land, nor recognize any cacique.Footnote 19 Unlike the partnership contracts drawn up during the 1717–1718 composiciones, the contract between Tlaxiaco and Ñumi did not invoke joint or partial liability, or liability of any sort, and contained no punitive measures with which to enforce its provisions.Footnote 20

Conclusion

In late seventeenth- and eighteenth-century Oaxaca, Native landholding and forms of territorial organization endured to a much greater extent than in other regions of colonial Mexico. For example, in northwestern Mexico, Hispanic settlement, population growth, expansion of cattle ranching, and the legal regime of private property and fixed boundaries undermined Indigenous communal land tenure and variable use-rights over the course of the eighteenth century (López Castillo, 2010, 2014; Radding, 1997, pp. 171–207, 2005, pp. 89–116). By contrast, in Oaxaca, Indigenous legal claims to customary land tenure, use, and possession produced a broad range of agrarian relationships that preserved old forms of collective ownership in new guises or created new forms altogether.

Although many Native communities in Oaxaca acquired title to their lands during this period through the composiciones de tierras, others resisted drawing firm boundaries around their communities, opting instead to share land through cooperative agreements. In some instances, they resorted to custom to legitimize claims to joint-possession and joint-jurisdiction, and in others, they claimed possession in order to transform customary usufruct into a contractual relationship. Partnership contracts provided an alternative to the bitter, expensive, and lengthy processes of litigation and land titling, at least temporarily. They also represented a strategy to pool land and natural resources, and to join forces against powerful outsiders, whether Spanish ranchers, officials, or caciques. Crucially, although claims to custom pointed to the preservation of traditional agrarian order, when incorporated into the partnership contract they became a potent mechanism for challenging that order and generating new rights, while preserving the privileges of the Native authorities who were their signatories.

Partnership contracts expand our view of the legal repertoire available to and developed by Native people to make customary claims and not only preserve but also produce common land. Partnership contracts were distinct from other forms of Mesoamerican claim-making—like maps, primordial titles, and codices—in significant ways. The contracts framed Native territoriality and social order in forms that appealed to Spanish norms of ownership, and collective and individual responsibility. In addition to providing evidence of customary practice and possession, the contracts also produced new legal effects, like liability, through which burdens for transgression were shared unequally. By petitioning Spanish judges to put into law customary arrangements that sat at the margins of legality, a rising class of legally literate Native officials strengthened their authority over people and land, while ceding some of their limited sovereignty to Spanish judges. The laws of medieval Spain allowed them to move strategically between agreement and conflict, and social harmony and exploitation. The fruits of their efforts demonstrate that Native custom and communal land in Mexico were not primordial or static, but rather works in progress, conditioned by laws, Native legal agency, and political and economic transformations. Joint-ownership and joint-jurisdiction had a lasting legacy in Mexico that stretched beyond the composiciones de tierras. During the nineteenth century and up until the Mexican Revolution, co-ownership (condueñazgo) provided a strategy for Mexico’s peasant communities—some Indigenous, and some of mixed ethnicity—to respond to state-led efforts to fiscalize, privatize, and legalize communal landholding.Footnote 21