In his 1980 essay on U.S. Indian policy and the politics of Philippine annexation, Walter Williams proposed that “[i]nstead of seeing 1898 as a new departure, historians might view Philippine annexation as the last episode of a nineteenth-century pattern of territorial acquisition and direct political rule of subject people.”Footnote ¹ Williams examined presidential speeches and congressional debates on the so-called Philippine problem, identifying routine and seemingly reflexive references to Native Americans as means to justify the overseas occupation. Perhaps the most famous of these expressions was Theodore Roosevelt's; he insisted that if Americans were “morally bound to abandon the Philippines,” they “were also morally bound to abandon Arizona to the Apaches.”Footnote ²

The view of U.S. imperialism in the Philippines as a “new departure” has persisted through the literature and for good reason. As diplomatic historians have emphasized, motives for seizing the Philippines and for appropriating Western lands were distinct. U.S. interest in the port of Manila as a stepping stone to China and its markets cast annexation as forward-looking—a glimmer of the eventual disassociation of political-economic power from territorial expansiveness and control.Footnote ³ Western lands, meanwhile, became subject to white settler colonialism, a process often euphemized as “expansion.” U.S. imperialists had no such designs on the Philippines, at least at the outset. In fact, to many observers at the time, the islands’ latitude meant that they would be inhospitable to whites. Arguably because white settlement neither had been envisioned nor came to pass as in the American West, differences also arose in the course of their conquests: the United States never incorporated the archipelago as a state of the union, unlike sections of western lands or like Hawai'i and Alaska. And while the U.S. government eventually conferred citizenship to Native Americans in 1924, it never extended the privilege to Filipinos.Footnote ⁴

Some of these differences noted by diplomatic historians also inform histories and theories of settler colonialism, which has been distinguished from colonialism. As Patrick Wolfe puts it, “The primary object of settler-colonization is the land itself rather than the surplus value to be derived from mixing native labour with it.” He continues, “Though in practice, Indigenous labour was indispensable to Europeans, settler-colonization is at base a winner-take-all project whose dominant feature is not exploitation”—as in colonialism—“but replacement.”Footnote ⁵ Some scholars of U.S. colonialism—those concerned with both metropolitan policy and motivations and practices on the ground—have also cautioned against stressing certain kinds of continuities between the eastern and western frontiers. In particular, emphasizing likenesses in the racist views and practices of white Americans in relation to Native Americans and to Philippine peoples, as Williams did, can perpetuate overly simple, West to East theories of racial formation.Footnote ⁶ As Paul Kramer has observed, “export” theories of racial formation can imply “that race is discrete, uncontested, impervious to context, and unchanging in historical time.”Footnote ⁷ Work like Kramer's among many others, has foregrounded instead inter-imperial relationships—between U.S. and British imperialisms, between U.S. and Spanish colonialisms—demonstrating that U.S. imperial motivations and colonial rule must be understood within such frameworks. This scholarship has been vital to the project of de-exceptionalizing the history of the United States and the United States in the World.

In light of the lessons taught by both these new colonial histories and settler colonialism studies, we might revisit the kind of analysis advocated by Williams, for an incontrovertible connection between the U.S. colonial Philippines and the American West does call out for attention. It is not only the discursive parallels in the metropole that scholars like Williams recovered, nor the state actors, like military or civilian personnel, who worked in both western and eastern frontiers. The shared colonial experience of territorial conquest and the problems of land ownership and property rights that it precipitated are themselves significant. These generated common questions over land rights—to whom did lands belong, what evidenced property possession, what was the extent of the public domain? Land dispossession, then, might serve as one of various “criteria of commensurability” between these histories and places, inviting both a comparative history and a history of how historical actors themselves compared the frontiers and put analogies and contrasts to political use.Footnote ⁸

This essay centers on two land disputes from northern Luzon, the largest of the Philippine islands, which reached the U.S. Supreme Court. Parties to these cases, which look beyond the colonial capital of Manila and toward its hinterlands, were forced to reckon with the legal regimes of past empires. In that regard, they certainly demonstrate the import of inter-imperial frameworks for analyzing common problems of land ownership and sovereignty. Participants likewise drew on the history and legal bases of land dispossession and settler colonialism in the American West when determining the rightful owners of Philippine lands. Influence ran in the other direction, too: in succeeding decades, arguments made in one of these disputes would figure into cases regarding Native American lands.Footnote ⁹ In this respect, these cases and their afterlives also suggest the salience of intra-imperial relationships, the emphasis of this essay.Footnote ¹⁰ They disclose a pattern wherein histories and legal structures of settler-driven “expansion” and extra-continental imperialism informed, even constituted, each other.Footnote ¹¹

In 1902, the year that the United States declared its war to suppress the Filipino independence movement over, Congress passed the Organic Act, legislation that set the foundation for colonial government in the Philippines, just as prior Organic Acts had provided for the creation of territories and their administration in North America. An anti-imperial insurgency that challenged U.S. sovereignty persisted for years far beyond 1902. But this did not stall the passage of laws to provide for the disposal of lands deemed part of the public domain. Theresa Ventura has written of these measures: “Embracing the spirit of the 1862 Homestead Act and the 1887 Indian Allotment Act [the Dawes Act], the Organic Act encouraged the settlement of interior lands by offering potential farmers freehold rights over a legally demarcated territory.”Footnote ¹² Much work would be required to make good on the promise of this law. In particular, colonialists would have to contend with the problem of land titles (and the general lack thereof) and the mechanics and politics of land surveys.Footnote ¹³ Bureau of Public Lands chief, Will Tipton, anticipated “deplorable friction” in the process of determining which lands lay within the public domain and were thus available for homesteading, sale, or lease, and which were privately held.Footnote ¹⁴ He was proven right; contests flared over the classification and ownership of lands, and they issued not just from those lowland provinces of Luzon proximate to Manila but also from the Cordillera mountains north of the capital. These latter challenges provoked consequential deliberations, including hearings by the U.S. Supreme Court.

Igorots, a collective name for several ethnolinguistic groups, dwelled over these contested lands in the northern Luzon mountains. Cordillerans had managed to keep the Spanish colonial state and missionaries’ efforts at proselytizing at bay until the mid-nineteenth century; the Spanish had consequently identified these peoples as “non-Christians.” Americans assumed this moniker even while revising the popular picture of Igorots. To them, Igorots were less threatening pagans than Americans’ new noble savages, who were exhibited at World's Fairs, most infamously in 1904 in St. Louis. Through occasions like these and the wide circulation of images and articles prepared by U.S. administrators, Igorots were made instrumental to justifying U.S. rule in the colony. While the Hispanicized and Christianized Filipinos, especially those who joined the colonial administration, might show capacity for “self-government,” Igorots, dressed in gee-strings, wielding bolos, and introduced as headhunters and dogeaters, were to remind Americans that the colonial work of uplift must continue unabated.

Americans’ “summer capital” in the northern Luzon province of Benguet, the hill station called Baguio, brought colonialists within reach of Igorot peoples, in particular an ethnolinguistic group called the Ibaloi. In fact, the center of the colonial town rose on land that one wealthy Ibaloi headman named Mateo Cariño had granted to the insular government. Although he had provided Americans with that base for future operations in Baguio, he disputed the government's claim to another portion of land—one that the U.S. president had claimed in 1903 for a military reservation, Camp John Hay. Cariño challenged the move and asserted ownership to part of it.Footnote ¹⁵

In a series of court trials, Cariño would assert that the land had been his grandfather's, then his father's, before it came down to him in an Ibaloi custom called the cañao. Cariño's interest in challenging the U.S. government, however, was not strictly sentimental. As the case showed, in 1901, Cariño had obtained proper title to the land through the colonial Court of Land Registration, a step critical to his plans for selling some of this land to an American merchant in Manila named Metcalf Clarke.Footnote ¹⁶ Having an obvious stake in the land in question and later, insinuating that speculative interests had driven Clarke, the insular government contested Cariño's claim. When overruled in 1904, the insular government made an effective appeal to the Court of First Instance in Benguet, which, while denying jurisdiction in the case, also maintained that the Ibaloi headman had no clear right to the lands in question. Cariño challenged this decision in the Philippine Supreme Court; it was the U.S. Supreme Court that ultimately ruled in his favor.

Various issues clouded the case, especially the concern that Clarke was attempting to profit from land that had risen in value with news that the United States intended to grow its Baguio summer capital. But the suit ultimately hinged on whether Cariño actually owned the land. Representatives for the U.S. and insular governments conceded that Cariño and his ancestors had occupied the land for decades, but they also held that Mateo had never enjoyed proper title to it.Footnote ¹⁷ They were correct, for despite two efforts to comply with Spanish royal decrees in the 1890s, Cariño had never been accorded written title. He testified that Spanish officials assured him that he need not acquire such documentation—the Spanish recognized his elevated status and his ownership, and it would not be denied.Footnote ¹⁸ For Americans, these promises were insufficient. Their land laws followed late Spanish laws, particularly the 1894 Maura Law. On the surface, the Maura Law was to provide Philippine peoples with access to land for agricultural cultivation, but its details amounted to a reversal of Spain's long-standing “respect [for] customary land rights.”Footnote ¹⁹ The Maura Law allowed the regime to claim for the state all lands except those held by owners possessing legal titles. In other words, undocumented customary land rights would no longer be recognized by the colonial state as they long had been. Americans followed this policy. While the 1902 Organic Act had allowed “native settlers” to secure free patent to lands in the public domain, in one early report, officials assigned to this category about nine-tenths of the Philippine landmass. Historian Owen Lynch writes that this estimate “reflected complete disregard of undocumented property rights, including those held by indigenes within ancestral domains.”Footnote ²⁰ Having failed to secure title under the Spanish, then, so far as the insular government was concerned, Cariño's land had laid in the public domain during and following the transition to U.S. sovereignty. Cariño was, therefore, a “trespasser” on public land.Footnote ²¹

Cariño's representatives before the U.S. Supreme Court were well-known legal figures; they included Frederic R. Coudert, who had participated in several of the first Insular Cases. In that context, working on behalf of clients seeking free trade between the new colonies and the mainland, Coudert had argued for recognition of the United States’ new possessions as “domestic”—as part of the United States—for tariff purposes. When they took Cariño's case, Coudert and his partners argued for recognition of the Ibaloi's property rights. To them, the implications of the government's claim were ludicrous: the requirement that Cariño show “paper title” from the Spanish regime meant that “the whole Igorrote [sic] nation may be driven as ‘lawless squatters.’”Footnote ²² In the fall of 1907, the case reached the U.S. Supreme Court, and when he wrote his opinion in February 1909, Justice Oliver Wendell Holmes ruled for Cariño. Examining the case in relation to Spanish land law and U.S. congressional legislation on the colony, Holmes largely followed the argument made by Cariño's attorneys. He concluded that the Spanish had in fact accorded indigenous peoples the means with which to secure title to land over which they asserted ownership, and he interpreted the Maura Law (that reversal of Spain's historic recognition of customary property rights) not as amounting to “confiscation, but as the withdrawal of a privilege.” To believe that upon Americans’ arrival, Cariño became a “mere trespasser,” as the insular government would have it, would “amount to a denial of native titles throughout an important part of the island of Luzon.”Footnote ²³ Holmes's opinion proved significant, for it set precedent for the recognition of native title with legal import to this day. Yet its ramifications, as we will see, were multiple, and they were mixed.

The problem of determining native land ownership spurred a second case tried at the same time as Cariño's. This suit centered on lands located in a Benguet town called Itogon, several miles beyond Baguio; it concerned not agricultural but mineral lands known to contain gold. This metal had bred conflict between Spanish colonizers and Igorots for centuries. In part because the Ibaloi had managed to maintain control of their sources of gold, the metal “laid the foundations of Benguet society.”Footnote ²⁴ As in the previous case, a member of one of Benguet's wealthiest families brought forward the suit. First presented at the Court of First Instance in 1904 and decided by the U.S. Supreme Court in November 1909 (several months after Cariño's), the case pitted Ibaloi Joseph Fianza against an American miner named John F. Reavis.

Fianza was “the owner of the largest herd of cattle in Itogon,” a wealth enabled by his forebears and his position as “the chief trader of his kin's gold.”Footnote ²⁵ He likely did little mining himself, leaving this work to others, possibly slaves, debt peons, or hired hands, and to kin who joined him in the suit.Footnote ²⁶ The other players in Fianza's court case were familiar figures. Reavis had testified in Mateo Cariño's case, acknowledging that he had assumed “a squatter-claim” and even built a house on land he later learned was Cariño's; Reavis subsequently vacated the location.Footnote ²⁷ Unsurprisingly, Cariño testified for Fianza, but one of his well-known attorneys, Frederic Coudert, represented Reavis before the U.S. Supreme Court. Metcalf Clarke appeared in this case as well. He was among a small party (including John Haussermann, also a lawyer for Cariño, who now represented Reavis), that put forward a $1,000 appeal bond following the Philippine Supreme Court's decision in March 1907 against Reavis.Footnote ²⁸ By June 1907, Clarke and Haussermann would be directors of the province's leading mining company, Benguet Consolidated. These Americans had obvious interests—legal and monetary—in the future of mining in Benguet,Footnote ²⁹ just as Coudert, I will argue, saw in Reavis's case (like in Cariño's), an opportunity to set the terms for the alienability and sale of native lands.

In Cariño's case, the facts had been generally agreed upon: both parties accepted that the Ibaloi man and his family had occupied the land in question for several generations and built enclosures around it. By contrast, ownership and the very location of the two mining claims were highly contested in this second trial. Fianza and his co-claimants contended that Reavis had dispossessed them of their mines, “Antamoc” and “Ampasit.” To Fianza and his attorneys, ownership was obvious: Fianza traced possession of the lands to his great, great, great grandfather, and he brought forward a raft of witnesses who testified to broad, local knowledge of Fianza's and his ancestors’ ownership of the lands.Footnote ³⁰ He and his co-claimants maintained that Reavis had “wrongfully … enter[ed] upon” their property, and they sought $6,000 (Philippines currency) in compensation for gold purportedly stolen by the American prospector and for “the obstruction of free working of their … mines.”Footnote ³¹

Fianza previously had attempted to arrest the American's advances on his land by turning to Benguet Governor H. P. Whitmarsh, who had also subsidized explorations and made claims on Benguet mineral lands.Footnote ³² But Fianza testified that he had been checked by the governor.Footnote ³³ Without U.S. colonial mining law yet in place, Fianza then had little recourse.Footnote ³⁴ And so apart from posting a notice of possession near the mines by late 1901 and later, in mid-1902, putting down stakes with a provincial clerk at Whitmarsh's recommendation, Fianza was left to await the new mining law, policy that would come with passage of the Organic Act in July 1902.Footnote ³⁵

Americans like John Reavis were also biding their time, hoping to formalize claims on their discoveries.Footnote ³⁶ After putting down stakes in early 1901, Reavis submitted their names including “Texas,” “Clayton,” and “Otek,” to a record kept by H. Clay Clyde, another American prospector who would go on to serve as a director of Benguet Consolidated, and he continued with his assessments.Footnote ³⁷ In his testimony, Reavis defended his actions, explaining that inquiries had revealed that the lands in question were vacant. Testimony also revealed that Reavis was no mining novice. Prior to his arrival in the Philippines in 1899, he had gathered experience prospecting in his native Texas, as well as in New Mexico, Arizona, and Colorado.Footnote ³⁸ He was also far from the sole American looking to strike gold in Benguet. U.S. Army soldiers who had heard about mountain caches of gold or who had participated in the early “geological reconnaissance” of the archipelago, also scrambled up the Cordillera.Footnote ³⁹ A number of prospectors testified for Reavis, including one who had mined in Colorado, Utah, Nevada, Idaho, and South America before landing in the Philippines.Footnote ⁴⁰ The presence of these Americans no doubt informed descriptions of Baguio as a new West. In a January 1903 article in The Manila Times, Whitmarsh, then the former governor of Benguet, described the hill station as “greatly resembl[ing] a mining town out west. At night the prospectors gather round the ‘village store’ and swap yarns and tobacco and generally play the role of miners the world over.”Footnote ⁴¹

Some of these Americans may also have married Igorot women and through their wives, gained access to Benguet's mining lands.Footnote ⁴² Those who testified for Reavis, however, emphasized only their professionalism.Footnote ⁴³ They spoke of efforts to make their claims “proper,” which meant “making it out according to the United States mining laws and record[ing] it in this book the best you knew how. We tried to live up to what was right so there would be no trouble between one another,” testified Clyde.Footnote ⁴⁴ These practices were intended to forestall trouble among American miners. In fact, testimony would show that these men deliberately excluded Igorots from an effort to form a mining district in February 1901; this was an attempt to create a private association to regulate and order mining claims in the absence of the anticipated colonial mining law.

The American miners did indeed appear to have little respect for Igorots and their mining methods. While they described theirs as thorough and efficient, the American miners referred to Igorot techniques as simple “gophering.”Footnote ⁴⁵ “The custom among the Iggorrotes [sic] was to dig little holes and follow up little stringers where they could see a little free gold and then they would put the rocks on rocks and grind it out and sold it for what they could get for it,” Clyde testified.Footnote ⁴⁶ “They never claimed the ownership for any length of time. They would work in that place for one day and may be for one week because they would work in one place a week and the next place they might be working would be a mile from there in another entirely different place.”Footnote ⁴⁷ This tendency toward modest diggings and frequent mobility, or what Reavis's counsel referred to as “hap-hazard surface scratchings,” became an important element of his case.Footnote ⁴⁸ He presented several witnesses who testified that no single Igorot appeared to own the disputed mining land.Footnote ⁴⁹ Reavis, who admitted to the existence of “Iggorrote tunnels all over” the disputed area, claimed that he had not attempted to prevent Igorots from working on his location; to the contrary, he extended them contracts.Footnote ⁵⁰ He “told them all who wanted to work might, but to bring me the gold, and they did bring me some and I bought the gold from them.”Footnote ⁵¹

Far from denying that Igorots mined the disputed lands, then, Reavis and those who testified on his behalf viewed descriptions of Igorot mining methods as advantageous in proving that Fianza had never enjoyed exclusive ownership. They also implied that the Igorots had failed to productively exploit the riches under their feet. A fawning article on Benguet Consolidated that appeared in the Far Eastern Review in 1907 aired the same impression and told readers that Igorots’ “methods were limited to the most primitive and their necessities so small that the yield was insignificant.”Footnote ⁵² These American miners’ efforts in northern Luzon and their accounts of them echo strategies of population “transfer” employed under conditions of settler colonialism—from a denial of indigenous peoples’ very presence to the production of narratives wherein Igorots were portrayed as “hopelessly backward” and “pathologically mobile” and for that reason, undeserving of the lands they occupied.Footnote ⁵³

In May 1902, Reavis and Fianza reached a brief modus vivendi. Benguet Governor W. F. Pack, Whitmarsh's successor, mediated their agreement, and it held that until the passage of colonial mining law, when their case could be heard by the Court of First Instance, Fianza could work his mines and Reavis could continue with assessments.Footnote ⁵⁴ About three years later, in April 1905, Judge Charles Burritt of Benguet's Court of First Instance, the same judge who had heard Cariño's case in that very month, ruled for Fianza. In Cariño's dispute, Burritt discussed at some length applicable Spanish and U.S. colonial laws but ultimately denied his court's jurisdiction in the case.Footnote ⁵⁵ Burritt did not abstain from ruling on Fianza's suit, and he produced pages parsing Spanish law governing mining lands and the new U.S. policies. After review of all these measures, the judge concluded that Fianza and his co-claimants had been “trespassers” against the Spanish government, just as he had concluded that Cariño had no recognizable claim.Footnote ⁵⁶ Even though Fianza's family had occupied the disputed lands for fifty or more years, “they had no ‘property’ whatever therein,” for in the Spanish period, “[n]o title … and no right of possession to the lands in question was or could have been gained by the plaintiffs.”Footnote ⁵⁷ This was the only logical conclusion as “[m]ines and minerals [had] always been the property of the Crown” per Spain's Regalian Doctrine.Footnote ⁵⁸ This doctrine assumed “the principle of eminent domain which reserves to the state the right to develop the mines on its own initiative or through private concessions.”Footnote ⁵⁹ Upon the inception of U.S. sovereignty, then, title to these mining lands fell to the U.S. government, and Fianza became a trespasser against the new colonial power. Still, the judge noted that the Spanish appeared not merely to have ignored Fianza's trespass, but “winked at it and even connived at the unlawful acts of Fianza's ancestors.”Footnote ⁶⁰ He also complimented Fianza, contrasting the Igorot to American miners of the U.S. West. The judge commended Fianza for seeking recourse through the colonial governor and “invok[ing] the process of the law against the American,” rather than resorting to “the law of force and violence … as did the miners in the early days of the Great West … before courts and government were firmly fixed.”Footnote ⁶¹ And in the end, the judge found for Fianza.

Citing a series of cases from California, Colorado, Utah, and Montana, the judge concluded that while Reavis may have followed American practices in his attempts to record his locations, he had not fulfilled the requirements of the 1902 colonial mining law.Footnote ⁶² In particular, in efforts to record his locations, Reavis had include[d] “a false statement”: he asserted “that the ground was unoccupied by any other person,” even after “he had entered into an agreement with the plaintiffs recognizing their occupation and agreeing to his own non-possession” in mid-1902.Footnote ⁶³ The judge thus determined that when the U.S. Congress passed the colonial mining law on July 1, 1902, Fianza and his co-claimants were in “actual quiet and peaceable possession” of the land.Footnote ⁶⁴ On that date, the disputed mining lands were Fianza's “and the title thereto was thereafter and is now held in trust by the United States (and the Government of the Philippine Islands) for the use and benefit of Jose Fianza and his co-owners.”Footnote ⁶⁵ In other words, the government was reserving Fianza and his co-claimants’ right to secure a proper patent to their mining lands. Reavis's claims had been both false and too late.

Reavis's counsel would appeal to the Philippine and ultimately the U.S. Supreme Courts, quarreling with the Court of First Instance's findings of fact and refuting the notion that Fianza had proven “continuous exclusive possession of one single definitely identified square foot of mining territory.”Footnote ⁶⁶ His counsel continued to insist that while Fianza's forefathers may have “held some position of chieftainship,” there was no evidence that they had exclusively held the lands in question. “[N]ative mining was very promiscuous as to location.”Footnote ⁶⁷ This marked a difference from the case of Mateo Cariño, whom the insular government had also attempted to present as a chieftain, enjoying “dominant sway over large tracts of land” “simply by force of character.”Footnote ⁶⁸ Chieftain or not, Cariño's lands had been demarcated by fences unlike Fianza's. Coudert and his partners also noted that while mining lands had only ever belonged to the Crown, the same could not be said for agricultural lands—the category into which Cariño's property fell.Footnote ⁶⁹ And so while in Cariño's case Coudert and his co-counsel argued that the government's refusal to recognize the Ibaloi man's claim was tantamount to allowing for “the whole Igorrote nation [to] be driven as ‘lawless squatters,’”Footnote ⁷⁰ in the latter case, they held that it was the Ibaloi's claim that staggered the imagination: “[T]he plaintiffs ask the Court to declare that because a particular family of Iggorotes, with others, have habitually roamed over a mountain-side, digging little holes in the surface here and there, and taking out a little loose gold, they have acquired a legal title and exclusive right to all the stores of mineral wealth in the depths below, within whatever boundaries they may now choose to assert.”Footnote ⁷¹ This was too much; to accord them such command of Benguet lands, they asserted, was to convey “a measure of protection which in these days of anti-monopoly legislation seems scarcely American.”Footnote ⁷²

This argument gives some insight into Coudert's motives for switching sides—from an Igorot's advocate to an American miner's defender. It also returns us to intra-imperial problems of property ownership and land rights. By Coudert's logic, were the U.S. government to recognize Fianza and his co-claimants’ property in mining lands, the Igorots’ “monopoly” power might well inhibit mineral harvesting in the region. Coudert made an argument following the enduring logic of improvement, a kind of argument that was no stranger to land disputes and expropriations in the U.S. West and that American miners in Benguet had also employed.Footnote ⁷³ By contrast, in Cariño's case, it was failure to recognize Cariño's property ownership, this time evidenced by enclosures, that would ostensibly hinder development of the region. In both instances, Coudert argued the side that would extend recognition of individual property ownership—and a fairly narrow understanding of what constituted it—and in that way, advance the alienability of native lands. Coudert seemed to operate in a way consistent with methods of land dispossession described by historian John Weaver. “In colonial America, the United States, and New Zealand,” he writes, “lawyers for several large land jobbers argued without success that first peoples had a natural right to sell.”Footnote ⁷⁴ Weaver notes this “irony of frontier history”: that “canny lawyers, working on behalf of speculators,” argued for “first peoples’ right to cede land directly” and in that way, “prepared briefs that foreshadowed human rights declarations in the late twentieth century.”Footnote ⁷⁵ Coudert and his partners had done something similar in the Cariño case and successfully, supplying the U.S. Supreme Court with the basis for a ruling that recognized native title.

A second connection can be made between the northern Luzon land disputes and contests on the mainland. In building Cariño's case, Coudert made reference to a 1904 study of the Bontoc Igorots, an ethnolinguistic group dwelling about one hundred miles northeast of Baguio. Coudert had used the report, authored by American anthropologist Albert Jenks, to argue for the existence and integrity of Ibaloi property customs—that the Ibaloi man “owned the land under and according to the native customs.”Footnote ⁷⁶ In Fianza's case, by contrast, Coudert and his partners argued against an Igorot custom of “exclusive ownership in mining territory.”Footnote ⁷⁷ Perhaps this was because Jenks's study included no discussion of Bontoc mining. But if one followed the view of property ownership that Jenks laid out, one might well regard Fianza's claim to property as legitimate, too. The Bontoc “individual owns dwelling houses, granaries, camote lands about the dwellings and in the mountains, millet and maize lands in the mountains, irrigated rice lands, and mountain lands with forests,” he wrote. “In fact, the individual may own all forms of real property known to the people.”Footnote ⁷⁸ Some elements of Jenks's assessment accord with anthropologist Melanie Wiber's study of Ibaloi property rights. She explains that the Ibaloi recognized lands that existed within “community territorial boundaries” as open for access by community members, but also that individuals and groups could assert exclusive rights to land based on “the principle of primi occupanis.”Footnote ⁷⁹ The greater degree of labor an individual or group invested in the land over time, the wider the rights the particular party could claim to it. And so while the Ibaloi viewed streams that contained surface gold as open for use by all community members, they saw mines as “individual property and their yield privately controlled.”Footnote ⁸⁰ “The investment of labour to create a mine tunnel,” she writes, “lifted the site from the realm of open access and restricted appropriation to the developer(s).”Footnote ⁸¹

Coudert's (seemingly inconsistent) application of Jenks's research links the history of land dispossession in the Philippines with that process in America. In 1923, the U.S. Secretary of the Interior selected Jenks to help produce Indian policy.Footnote ⁸² An opponent of the reservation system, Jenks advocated for allotment. In the United States, this support for allotment would be demonstrated in a property dispute over Minnesota lands, a case that bore some resemblance to such cases in Benguet. At issue, explains historian Mark Soderstrom, were some “142,000 acres of [Minnesota] land, with a combined state tax roll value of more than $2 million, and with timber rights valued in excess of $1,775,000.”Footnote ⁸³ “In 1906, after years of lobbying by the state of Minnesota, Congress changed the property laws protecting Native American lands on the White Earth Reservation and began to allow limited sales of those lands by Indians deemed competent to sell (by virtue of racial admixture with ‘white blood’),” Soderstrom writes. In the ten years following this amendment to the Dawes Act, called the Burke Act, portions of this Ojibwe Reservation fell into the hands of buyers and ultimately, “corporate timber interests.” In 1910, the U.S. Department of Justice challenged these new owners and their property, “asserting that much of it had been illegally purchased from full-blooded Indians, who were deemed by the government to be wards of the state and thus incompetent to manage their own affairs.” In its defense, the timber industry sought anthropological justification for its land appropriation and summoned Jenks. He “determined, through sampling hair, rubbing skin, and measuring faces, noses, and heads, that 90 percent of the White Earth band was indeed mixed, not pure—and therefore qualified to sell.”Footnote ⁸⁴ In 1914, the U.S. Supreme Court affirmed the circuit court ruling that “an Indian having any identifiable blood other than Indian was a mixed-blood”Footnote ⁸⁵ and fit to sell his allotment. Jenks's study of the Bontoc Igorots had been used in 1906 to make the case for understanding Mateo Cariño's lands as alienable private property; his later fieldwork in Minnesota contributed to the dismantling of the Ojibwe Reservation into discrete commodities.

There are, of course, important differences between these western and eastern circumstances and the legal cases they conditioned. For one, Philippine peoples were commonly referred to as “tribes,” but these “tribes” were not legal entities, nor did tribal reservations come to exist in the Philippines. This distinction was raised by Cariño's opponents. They held that U.S. Supreme Court decisions on “the tribal rights of Indians have no possible application” in the Philippines.Footnote ⁸⁶ Likewise, where across swaths of the West, according to Kermit Hall, “the entire movement of land law in the Great Plains at the end of the nineteenth century was from communal to exclusive ownership,” American officials in the Philippines had not recognized indigenous communal forms of ownership.Footnote ⁸⁷ To them, Cordillerans, who had had significant contact with the Spanish for centuries, seemed to operate with notions of individual property rights. As the chief of the Bureau of Non-Christian Tribes argued in 1901, “the mountain tribes” of the Cordillera region “have advanced to the point of understanding individual ownership of property in, at least, improved lands.” The bureau chief advocated against applying the tribal reservation system in the colony, and for the Cordillera, he recommended policies that would “encourage admixture rather than … maintain isolation.” He believed that “the assignment of individual holdings can be speedily effected, leaving superfluous land open to settlement from outside.”Footnote ⁸⁸ These Philippine peoples, he implied, were reasonably “advanced” in their understanding of individual property possession, and, as Coudert's arguments also implied, that was all the better for the eventual “settlement” and development of the region. Tribal recognition and the reservation system, and the recognition of group land rights or its lack, thus mark important distinctions in the histories of the western and eastern frontiers.

But we might also note areas of common ground: Just as the U.S. government dealt with Native Americans, who were understood to be “sovereign or semisovereign collectivities,” separately and claimed for part of the nineteenth century a trust responsibility in relation to them,Footnote ⁸⁹ so in the Philippines, Americans attempted to govern by carving out an administrative unit called the “Special Province.” These Special Provinces established in 1905, were regions inhabited by the colony's “non-Christian” peoples, who, according to U.S. officials, required protection from the Hispanicized and Christianized Filipinos. As U.S. official Dean Worcester put it, “the non-Christians are not to be subject to the municipal officials of Christianized towns, at whose hands they have in the past suffered so much oppression and whom they cordially hate, but are to be taught to govern their own settlements.” Through the Special Provinces Act and the agency of provincial authorities, the insular government reserved the right to intervene in the lives of “non-Christians,” a category Anglos had once employed to classify Native Americans.Footnote ⁹⁰ The Special Provinces were not tribal reservations, but the logic of protection, shaping the exceptional treatment of both Native Americans and “non-Christians” in the Philippines, was not wholly dissimilar.Footnote ⁹¹

We can also draw parallels in the limits to and contradictions in these promises of protection and in the “trust” relationship. From the later nineteenth century forward, the trust relationship between the U.S. government and Native peoples was attenuated by policies and practices that facilitated whites’ economic development of Native lands.Footnote ⁹² The U.S. government came to pursue a policy of accelerated allotment, facilitated by the 1903 Lone Wolf decision, which mandated no “tribal consent” for breaking down and distributing Native lands. This policy and decision undermined Native Americans’ tribal sovereignty.Footnote ⁹³ As we have seen, U.S. officials in the Philippines, meanwhile, enabled by Spain's Regalian Doctrine and by U.S. colonial law and jurisprudence, seemed to “encourage individual property ownership and an adherence to free market economic values,” as C. Joseph Genetin-Pilawa defines the aim of the Dawes Allotment Act.Footnote ⁹⁴ And, just as in the Middle West and West, the beneficiaries of this process were often not Native peoples but the U.S. government and private interests like timber and mining companies.

A study of the Cariño and Fianza cases foregrounds these likenesses and connections in the history and conditions of land dispossession. The cases also show that Americans effected transformations in Philippine land ownership by drawing expedient comparisons and contrasts between the two frontiers. The Philippine Supreme Court, in hearing the insular government's appeal of the Cariño case, drew on the history of settler colonialism in the Middle West to justify its finding against Cariño: “We do not understand that a person in possession of unsurveyed public land in the State of Minnesota … whose ancestors had occupied that land for forty years,” judges wrote, “could maintain in court a claim that he was the legal owner of the lands by reason of the presumption that the United States had granted the land to his ancestors, a presumption founded … upon the mere possession for that length of time.”Footnote ⁹⁵ The justices effectively likened Cariño to a squatter in the very state where Jenks's work would prove so consequential.

In arguing for Cariño, meanwhile, Coudert and his partners crafted their own intra- and inter-imperial contrasts and connections. Spanish law, they wrote, “recognized and protected the rights of the native occupants of its Indian possessions even more fully and scrupulously than our own Government has done in the case of its Indian wards.”Footnote ⁹⁶ But Cariño's counsel also identified U.S. legal precedent—if one increasingly undermined—for recognizing the Ibaloi man's claims and in that way, advancing the commodification and alienation of Philippine lands. They argued that “While the United States Government has claimed a general right of paramount control over the Indian tribes as such, the doctrine that the right of the individual to the land which was his by tribal law could be taken away at will and that he was a mere lawless ‘squatter’ has never been an official American doctrine.” They asserted that “American Courts have uniformly held the individual possession of the American Indian to his land as sacred.”Footnote ⁹⁷ In Fianza's case, counsel referred to another imperial conquest in attempting to solicit a favorable ruling for the headman, and just as in Cariño's case, the attorneys appealed to an assumption that the U.S. occupation of the Philippines aspired to a break with, or at least improvement on, the past. “[I]n dealing with the Philippines,” they wrote, “the United States did not mean to treat its inhabitants as less entitled to the just and beneficent principle adopted towards the inhabitants of our former Mexican territory, but rather intended to put them on an even more favored footing.”Footnote ⁹⁸

This logic of U.S. imperial progress informed Justice Holmes's ruling in the Cariño case, which became precedent for the decision in Fianza's. Holmes wrote that “The acquisition of the Philippines was not like the settlement of the white race in the United States. Whatever consideration may have been shown to the North American Indians, the dominant purpose of the whites in America was to occupy the land.” “[T]he reason for our taking over the Philippines,” he asserted, “was different.” Here, “our first object in the internal administration of the islands is to do justice to the natives, not to exploit their country for private gain.”Footnote ⁹⁹ In light of this commitment, Holmes found for Cariño, just as the Court, in a decision also written by Holmes, affirmed the lower court verdict for Fianza. In the latter, the Court concluded: “it sufficiently appears that the appellee's family had held the place in Igorrot [sic] fashion, and to deny them possession in favor of Western intruders probably would be to say that the natives had no rights under the section that an American was bound to respect.”Footnote ¹⁰⁰ These comments might well be taken as legal expressions of the United States’ policy of “benevolent assimilation” in the Philippines. Holmes and Coudert implied that things would be different in this new chapter of U.S. colonial history. They seemed to cast settler colonialism and Native dispossession in the West as an inevitable, if possibly regrettable, course, and one that belonged to the past. Only, it did not.

About a decade after the Philippines gained independence from the United States, Cariño's land dispute figured into a U.S. Supreme Court decision on ownership of territorial lands soon to enter the union as the forty-ninth state.Footnote ¹⁰¹ In Native history, the 1955 majority opinion in Tee-Hit-Ton v. United States is significant as evidence of “the termination of the federal government's lawful treaty and moral trust relationship with a host of tribal nations,” a relationship in decline for decades as already discussed.Footnote ¹⁰² But it also demonstrates the instrumentality of inter- and intra-imperial history and comparisons not just to the deliberations over land ownership in the colonial Philippines but also to the course of Native land dispossession in the United States. Ownership of timberlands was once again in dispute; this time they lay in Alaska, a “territorial giant with largely untapped economic potential” at mid-century.Footnote ¹⁰³ In 1947, the U.S. Congress passed a measure allowing for the sale of timber in the Tongass National Forest, even that on lands claimed by Native groups through “aboriginal possession or title.”Footnote ¹⁰⁴ When the U.S. Forest Service gave a paper firm “the right to all harvestable timber” in Tongass, the Tee-Hit-Ton Indians, speakers of Tlingit, who had dwelled in the region for millennia, brought suit. They claimed they were due compensation for takings on their property or land to which attached, at minimum, a “recognized right to unrestricted possession, occupation, and use”—land that they defined as “a specific part of a specific and intensively used 350,000 acres.”Footnote ¹⁰⁵

The U.S. government rejected the Tee-Hit-Ton's claims, and in its brief, made note of the hundreds of cases on “the compensability of ‘original Indian title’” in the continental United States that the case concerned.Footnote ¹⁰⁶ The majority of the U.S. Supreme Court affirmed this position.Footnote ¹⁰⁷ In his majority opinion, Justice Stanley F. Reed dismissed the Tee-Hit-Ton's assertion that under Russian sovereignty, the band had enjoyed “aboriginal full proprietary ownership” that continued forward in time.Footnote ¹⁰⁸ The Tee-Hit-Ton's argument for the relevance of a colonial policy that predated U.S. sovereignty in the territory echoed Cariño's attorneys’ then decades-old contention regarding Spanish rule. The Tee-Hit-Ton's counsel issued another line of argument similar to one of Coudert's: that the band had long possessed a “relatively higher culture” and a concept of private property.Footnote ¹⁰⁹ Counsel even likened the Tee-Hit-Ton to the Aztecs and Incas, noting that where the tribes of “so many Indian cases” (tribes of the lower-forty-eight) might have lacked a ‘sense of property in land,’ such was not the case for the petitioner.Footnote ¹¹⁰ But Justice Reed disagreed with the assertion, declaring “that [the Tee-Hit-Ton's] use of their lands was like the use of the nomadic tribes of the States Indians.”Footnote ¹¹¹

Reed also denied that the 1884 Organic Act and the 1900 measure establishing civil government in Alaska “constituted a recognition by Congress of any permanent rights of Indians in Alaskan lands occupied by them,” as the petitioners had held. In other words, a federal statute expressly acknowledging or permitting their possession or occupancy of the lands in question was required in order for compensation under the Fifth Amendment to apply. In light of these conditions plus the underlying “legal theory that discovery and conquest gave the conquerors sovereignty over and ownership of the lands … obtained,” Reed concluded that the Tee-Hit-Ton had long been exercising merely “permissive” “occupancy” of the land. And ultimately, according to Reed, “Permissive Indian occupancy may be extinguished by Congress in its own discretion without compensation.”Footnote ¹¹²

In developing the point that “Indian occupation of land without government recognition of ownership creates no rights against taking or extinction by the United States protected by the Fifth Amendment,” Reed cited the Cariño opinion.Footnote ¹¹³ He noted that in the Ibaloi's case, the Supreme Court had relied on the 1902 Organic Act; this law had articulated the United States’ intention in acquiring the archipelago, namely, “to administer property and rights … ‘for the benefit of the inhabitants thereof.’”Footnote ¹¹⁴ The majority in 1955 found no such declaration in the Organic Act for Alaska. Reed also distinguished Cariño's claim as one appearing more like an “ordinary prescriptive rights situation.” Unlike the Tee-Hit-Ton's, Cariño's was “no communal claim to a vast uncultivated area.”Footnote ¹¹⁵ Justice Reed thus drew sharp distinctions between colonial circumstances. Where the Tee-Hit-Ton had claimed group land rights, if to a discrete parcel of land, Cariño had made his petition as an individual property owner. While Holmes had been able to cite the Organic Act and its statement of the United States’ benevolent purpose in the Philippines, the Court supposedly had no such language from which to draw in the Tee-Hit-Ton's case. And so Reed deployed an opinion that had made possible recognition of a form of native title in the colonial Philippines—if one premised on a circumscribed view of what constituted property possession—in denying aboriginal title in Alaska. The 1955 case makes clear that Native American land dispossession and settler colonialism could not be consigned to the past, just as the Igorots’ early twentieth-century land disputes could not be confined to the legal domain of U.S. overseas imperialism.

Back in the Philippines, despite efforts to stem the tide of “Western intruders” on Ibaloi lands in the early twentieth century, Cariño's property was incorporated into the U.S. military reservation. It seems that thanks in part to legal fees, the Ibaloi headman received only a small portion of the compensation that had been ordered by the court.Footnote ¹¹⁶ The promise of the Cariño precedent with its recognition of native title was also largely unrealized.Footnote ¹¹⁷ In practice, the colonial government continued to subscribe to Spain's Regalian Doctrine, which had held that all colonial lands but those for which Philippine peoples had secured documented titles belonged to the state. In that way, a fairly complex system of property rights at least in Benguet, which had recognized community, group, and individual rights, was reduced to a simple binary: public or private land. Meanwhile, even by the time of the U.S. Supreme Court's ruling in Fianza's case, the operations of the mining firm Benguet Consolidated were well underway.Footnote ¹¹⁸ By the time of the ruling, 544 mining claims had been recorded in Baguio, and in 1908, eighteen stamp mills were running, compared to three just the year before.Footnote ¹¹⁹ Yet by one account, Fianza received but “coins” for his mining property.Footnote ¹²⁰

Cariño and Fianza saw minimal recompense, and American land laws were ultimately even less salutary to poor Philippine peoples. The laws—whether regarding mineral lands or lands with agricultural potential or uses—tended to privilege the wealthy who had the wherewithal to attempt to register their claims with the colonial government.Footnote ¹²¹ As Olivia Habana has pointed out, it was Ibaloi elites—Cariño and Fianza—who filed the only two lawsuits made by Igorots concerning land ownership.Footnote ¹²² For those with limited means, colonial land policy and the requirement that land be registered lest it be considered part of the public domain, conditioned the loss of access to land through customary “group rights.”Footnote ¹²³ These dispossessions were compounded by the fact that the Philippine Commission, named by the U.S. president and not elected by the Philippine people, exercised direct authority over the archipelago's “non-Christian” populations in those zones of supposed protection, the “Special Provinces.”Footnote ¹²⁴

The circumstances resonate with histories of land dispossession on the mainland, where, as Frederick Hoxie has written, “The official view of native property was passing from the idea that it was a birthright to the notion that it represented a part of the public domain,” a view evident at the time of the Tee-Hit-Ton case.Footnote ¹²⁵ Over time, the end of the treaty system (for those to whom it applied) and the process of allotment created conditions in which Native Americans’ “external sovereignty” was undermined, along with their “internal sovereignty” through the attenuation of “tribal governance” and by “increasingly subjecting Native communities to state and federal bureaucracies and legal systems.”Footnote ¹²⁶ Similarly, in northern Luzon, passage of land laws and the land registration system had the effect of making Igorot peoples far more subject to the colonial state than their forebears had been to the Spanish.Footnote ¹²⁷ In Benguet, Ibaloi headmen lost their monopoly on gold mining and the gold trade—occupations that had long been their primary source of wealth and status.Footnote ¹²⁸

While Holmes distinguished the history of settler colonialism in the West from the U.S. occupation in the Philippines, U.S. law and jurisprudence were fostering the creation of colonial subjects out of both peoples;Footnote ¹²⁹ the goal in the Tee-Hit-Ton and Ojibwe timberland disputes was clearly “extraction.” As Kevin Bruyneel has pointed out, “[w]ith the emergence of an emboldened American settler-state and nation after the Civil War, the effort to impose modern colonial rule over indigenous nations and tribes began to move at a precipitous pace.”Footnote ¹³⁰ While this project in North America commenced before the U.S. acquisition of the Philippines, it certainly continued through the period of U.S. colonialism in the Philippines; some 2.9 million acres of land at Standing Rock and Cheyenne River reservations were opened for allotment in 1908 alone.Footnote ¹³¹ To the extent that treaty relations and tribal recognition never applied in the colonial Philippines and that the prevailing view was that most lands fell into the category of public domain, we might view colonial conditions in the Philippines as a foreshadowing of those of many Native Americans as the twentieth century advanced. At minimum, we have marked common patterns by which the U.S. state exercised and consolidated power over its territories and subject populations, despite the unique motives that animated imperial intrusions on the two domains. Noteworthy, however, is not just the parallels in these histories. It is that the history of settler colonialism in the U.S. West came to shape policies of dispossession in the Philippines just as experiences in the Philippines would inform U.S. policies regarding Native peoples, as the work of anthropologist Albert Jenks and Justice Reed's citation of the Cariño case suggest. Both inter- and intra-imperial comparisons and contrasts were instrumental to all parties in this process.

The Filipino activist and novelist Jose Rizal drew his own connections between Philippine peoples and American Indians even before the U.S. conquest of the archipelago. While in France for the Paris Exposition in 1889, he had occasion to see Buffalo Bill's Wild West show. The experience led him to reappropriate “indio,” a derisive term used by Spanish colonizers to refer to those people indigenous to the Philippines. Rizal would lead the formation of an organization in the Philippines with commitments to “self-discipline, mutual aid, education, and ‘the propagation of all useful skills, be they scientific, artistic, literary, etc.,’” and he named the group “Los Indios Bravos,” or “brave Indians.”Footnote ¹³² We might take Rizal's sense of relationship between the two colonial peoples as another prod to consider comparative and connected histories of Native Americans and Philippine peoples.