AURELIO CAL in his own behalf and on behalf of the Maya VILLAGE OF SANTA CRUZ and BASILIO TEUL, HIGINIO TEUL, MARCELINA CAL TEUL, and SUSANO CANTI

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1 Supreme Court of Belize A.D Claim No. 171 of 2007 BETWEEN AURELIO CAL in his own behalf and on behalf of the Maya VILLAGE OF SANTA CRUZ and BASILIO TEUL, HIGINIO TEUL, MARCELINA CAL TEUL, and SUSANO CANTI and THE ATTORNEY GENERAL OF BELIZE and THE MINISTER OF NATURAL RESOURCES AND ENVIRONMENT Claimants Defendants - and - Claim No. 172 of 2007 BETWEEN MANUEL COY, in his own behalf and on behalf of the Maya VILLAGE OF CONEJO and MANUEL CAAL, PERFECTO MAKIN and MELINA MAKIN and THE ATTORNEY GENERAL OF BELIZE and THE MINISTER OF NATURAL RESOURCES AND ENVIRONMENT Claimants Defendants SECOND AFFIDAVIT OF RICHARD R. WILK I, Richard R. Wilk, of 236 Student Building, Indiana University, Bloomington, Indiana, U.S.A., MAKE OATH AND SAY: 1. My identity and qualifications are outlined in my First Affidavits filed by the claimants in these actions. As noted there, I have done a good deal of historical archival research on land use and settlement in Toledo, particularly in 2001 and I am familiar with almost every published source on Toledo District's history. 2. I understand that this affidavit and my first affidavit are being filed as expert reports in this matter. I understand that, as an expert witness, my duty to the court is to help the court impartially on the matters relevant to my expertise. I understand that this duty overrides any 1

2 obligations to the person or party who asked me to prepare this report. I am not being paid by the claimants or any party to produce this report. 3. The instructions I received from the claimants through their counsel were, for the first affidavit, to provide an update of the report that I provided in 1997 for a similar lawsuit, concerning Maya land tenure in Toledo in general. I was asked to review the reports of Joel Wainright and Elizabeth Grandia, and comment on whether the land tenure patterns they describe in particular villages conform with the broader customary pattern. The instructions I received with respect to this second affidavit, were to address two areas that I had knowledge of from my historical research relevant to the issue of Maya traditional and historic rights. First, information pertaining to the extent of early British authority in the Bay of Honduras, prior to the creation of the colony; and second, information concerning Maya/British relations with respect to land, and the extent to which the highest colonial authorities protected, accommodated, or obliterated the Maya customary land use patterns. I was also asked to review the affidavits filed by the Attorney General and respond to any inaccuracies that I might identify in them. 4. I understand that expert evidence presented to the court must be, and should be seen to be, my independent product uninfluenced as to form or content by the demands of the litigation, and to that end it is my duty to: a. provide independent assistance to the court by way of objective unbiased opinion in relation to matters within my expertise. b. state the facts or assumptions upon which my opinion is based, and to not omit to consider material facts which could detract from my concluded view. c. state if a particular matter or issue falls outside his expertise. d. state if my opinion is not properly researched, and if so indicate that my opinion is no more than a provisional one. e. Inform the court in my report if I cannot assert that the report contains the truth, the whole truth and nothing but the truth without some qualification, and what that qualification is. f. Communicate any change of view I may have on a material matter to all parties to the litigation. 5. I have complied with this duty. 6. My report, being this affidavit and my first affidavits, includes all matters within my knowledge and area of expertise relevant to the issue on which my evidence is given. I have provided details in my affidavits of any matters that to my knowledge might affect the validity of my opinion. 7. Where my knowledge and belief is based on written and archival sources, I have cited them. I have relied on a number of secondary sources, and made extensive reference to the authoritative collection edited by Sir John Alder Burdon between 1931 and 1934 entitled Archives of British Honduras: Being Extracts and Précis Taken by a Committee from such 2

3 Records as Exist in the Colony, or records relating more generally to the colonial administration of British Honduras. I have also relied on a number of digital photographs of Belize archival documents that were obtained through a research project carried out by students and faculty at the University of Toronto Faculty of Law, many of which I have reviewed in the course of my own archival research. Where these documents are cited in my affidavit, I have attached copies of the digital images as exhibits. For ease of reading, I have indicated which documents are attached as exhibits in the footnotes of this affidavit. 8. This affidavit outlines the legal relationship between the British colonial regime the Maya. It is divided into three parts. Part I is a history of the early Spanish and British colonial regimes in the Bay of Honduras, and the historical documentation concerning the extent of British authority over the Maya in the region. Part II examines the historical relationship between the Maya and the British colonial government, in particular with respect to lands, insofar as it is relevant to the issue of whether colonial authorities evinced a clear and plain intent to extinguish Maya land rights. Part III describes the history of the alcalde system of governance in Maya villages. Part I: British Authority in the Bay of Honduras 9. Spain claimed the area that now includes southern Mexico and Central America, including Belize, when it established the Capitanía General de Guatemala in Maya-British relations developed in the context of the Spanish-British colonial relationship. From the time of Spain s acknowledgements of limited British rights within the territory in 1763 until Britain formally established the Colony of British Honduras in 1862, British legal authority in the area was significantly restricted. 10. The first explicit recognition by Spain of British rights in the Bay of Honduras is found in Article XVII of the Treaty of Paris of By this treaty, Britain secured Spanish permission for its logwood cutting industry, while at the same time acknowledging that the settlement lay within Spanish territory: 1 His Britannic Majesty shall cause to be demolished all the Fortifications which his Subjects shall have erected in the Bay of Honduras, and other places of the Territory of Spain in that part of the World, four months after the Ratification of the present Treaty; and his Catholic Majesty shall not permit His Britannic Majesty s Subjects, or their Workmen, to be disturbed or molested, under any pretence whatsoever, in the said places, in their occupation of cutting, loading, and carrying away logwood; and for this purpose, they may build, without hindrance, and occupy, without interruption, the houses and magazines necessary for them, their families, and for their effects; and His Catholic Majesty assures to them, by this Article, the full enjoyment of those advantages and powers on the Spanish Coasts and Territories, as above stipulated, immediately after the ratification of the present Treaty. 2 1 Sir John Alder Burdon, editor, Archives of British Honduras Volume I From the earliest date to A.D Being Extracts and Précis from Records, with Maps. (London: Sifton Praed & Co., Ltd., 1931) at p.12. [herinafter Burdon I]. Burdon served as Governor of British Honduras from As reproduced verbatim in Ibid, p

4 11. The treaty granted no rights to the British Crown, but only promised protection to British subjects in the area. In fact, Spanish administrative structures were non-existent in the settlement, and consequently, the settlers developed for themselves a customary legal system by which they allocated cutting rights and governed relationships amongst themselves. This system involved public meetings that passed rules, and the election of administrators known as magistrates. The rules of this customary system were ultimately codified in 1765 in what became known as Burnaby s Code. 3 Due to its ambiguous authority in the region, Britain did not made any formal arrangements for the administration of the settlement beyond dispatching military officers from time to time to maintain a presence and deal with issues of internal order. One such officer was Admiral Burnaby, who undertook the task of ordering and writing down the settlers customary law. 12. In 1779, the outbreak of war with Spain resulted in the British evacuation of the Bay of Honduras. According to Burdon, [t]he Bay Settlement practically ceased to exist until after the peace of By Article VI of the Treaty of Versailles, dated September 3 rd, 1783, British rights to cut logwood were recognized within more definite geographic boundaries. In designating the area as a Settlement, the parties agreed that it in no way derogated from Spain s rights of Sovereignty. 5 The treaty specified, by annexing a map, that British rights were confined to a geographical area between the Hondo and Belize rivers, an area that does not include what is today the Toledo District of Belize In 1784, King George III made the first official British appointment for internal governance of the Settlement, naming Captain Despard Superintendent. It is worth noting that Superintendent Despard s mandate was very restricted, being limited to governance of British subjects and preventing quarrels and disagreements with Spanish subjects in the area: His Majesty has been graciously pleased to appoint you to regulate and superintend His Affairs within the District which by the late Treaty of Peace has been allotted for the Logwood Cutters upon the coast of Yucatan, and prevent any Quarrels or Disagreements between His Subjects who may be employed therein and those of His Catholic Majesty inhabiting that neighbourhood The boundaries within which these rights existed were modified in the Convention of London, of July 14 th, 1786, Article II of which expanded them southwards to the Sibun river, but again not so far as to include what is now Toledo District: The Catholic King, to prove on his side, to the King of Great Britain, the sincerity of friendship towards His said Majesty and the British Nation, will grant to the English more extensive limits than those specified in the last Treaty of Peace: and the said limits of the Lands added by the present Convention shall for the future be understood in the manner following: The English Line, beginning from the Sea, shall take the centre of the River Sibun or Jabon, and continue up to the source of the said River; from thence it shall cross a straight line the intermediate 3 Ibid., p Ibid., p Ibid., p A copy of the map annexed to the 1783 treaty, as reproduced by Burdon, is attached to this affidavit as Exhibit R.W Burdon I, p

5 land, till it intersects the River Wallis; and by the centre of the same River, the said Line shall descend to the point where it will meet the Line already settled and marked out by the Commissaries of the 2 Crowns in 1783: which shall be observed as formerly stipulated by the Definitive Treaty Perhaps in acknowledgment of the British Superintendent s presence in the settlement, the Convention of London specifically addressed the issue of British governance rights:: All the restrictions specified in the last treaty of 1783, for the entire preservation of the right of the Spanish sovereignty over the country, in which is granted to the English only the privilege of making use of the wood of the different kinds, the fruits and other produce, in their natural state, are here confirmed; and the same restrictions shall also be observed with respect to the new grant. In consequence, the inhabitants of those countries shall employ themselves simply in the cutting and transporting of the said wood, and in the gathering and transporting of the fruits, without meditating any more extensive settlements, or the formation of any system of government, either military or civil, further than such regulations as their Britannic and Catholic Majesties, may hereafter judge proper to establish, for maintaining peace and good order amongst their respective subjects In The During the early part of the nineteenth century, property interests of British settlers in the Settlement were described as, merely of an usufructuary nature. The object which the settlers had in making locations was solely that of cutting the mahogany and logwood which grew within the limits of the tract of country on which they placed themselves. At that time there were no laws or regulations to govern possession of land, or to prescribe its mode of distribution, except certain conventional rules which the settlers adopted to prevent discord and confusion War broke out again between Britain and Spain in In the battle St. Georges Key in 1798, British forces defeated the Spanish naval force. 11 Nevertheless, in the Treaty of Amiens, dated March 27 th, 1802, which ended that war, however, Britain restored to Spain all the possessions and colonies which belonged to them respectively, and which had been occupied or conquered by the British forces in the course of the war, with the exception of the island of 8 As reproduced verbatim in Ibid, p A map showing the boundaries in the 1783 and 1786 treaties is attached to this affidavit as Exhibit R.W Burdon I, p Sir John Alder Burdon, editor, Archives of British Honduras Volume III (London: Sifton Praed & Co., Ltd., 1934) p Burdon I, p.29. 5

6 Trinidad and the Dutch possessions in the island of Ceylon. 12 settlement of British Honduras. This would include the 18. In 1814, Spain and Great Britain reaffirmed the authority of the Treaty of 1783 and the Convention of The Treaty of Madrid of July 5 th 1814, in Article I of its Additional Articles states: It is agreed that, pending the negotiation of a new treaty of commerce, Great Britain shall be admitted to trade with Spain upon the same conditions as those which existed previously to the year All the treaties of commerce which at that period subsisted between the two nations, being hereby ratified and confirmed The lack of clear British authority in Settlement made it difficult for the Settlement s leaders to make decisions about the governance of land, except for the limited purposes permitted under the treaties. Nevertheless, the Superintendent wished to exert some control over the customary system the settlers had developed for allocating and managing lands, primarily to ensure that it did not provoke any difficulties with Spain. Following ratification of the Convention of London, 1786, the Secretary of State, Lord Sydney, sent the following instructions to Superintendent Despard, requiring him to limit British activity to the treaty area: His Majesty expects that you will on your part, most rigidly fulfil the several stipulations contained in the said Convention, and you do let it be publicly known and understood by all His Majesty s Subjects, under your Superintendence, that if any of them are found to be acting in contradiction to the spirit and intention of the present Convention, that such proceedings will be disavowed by His Majesty, and they will, on account of such misconduct, forfeit every claim to His Royal Protection and Support. 20. The restricted nature of the Superintendent s powers was reiterated in a 1815 communication from Lord Bathurst to Major Arthur, who had replaced Despard as Superintendent in 1814, stating,...that His Majesty, having no Territorial Rights and consequently no power to establish tribunals, the Superintendent by virtue of his military appointment may expel any person whose conduct endangers the tranquility of the Settlement, but in such a case a full report must be sent to His Majesty s Government In 1829, the Superintendent received instructions that His Majesty will not authorize you to make any grants of land for the purpose of cultivation 15 but further instructions two months later permitted the Superintendent to take control of land rights, within the restrictions of the treaty: 12 Treaty of Ameins, Article III, as reproduced in Francis Gardner Davenport, European Treaties Bearing on the History of the United States and its Dependencies, Volume 4, , edited by Charles Oscar Paullin (Washington: Carnegie Institution, 1937). 13 Handbook of Commercial Treaties & c., between Great Britain and Foreign Powers, Third Edition. (London: H.M. Stationery Office, 1924) at p Sir John Alder Burdon, editor, Archives of British Honduras Volume II From 1801 to 1840 Being Extracts and Précis by a Committee from such Records as exist in the Colony, with Maps. (London: Sifton Praed & Co., Ltd., 1934) at pp [herinafter Burdon II]. 15 Humphrey, 25 ftn: Sir George Murray to Col. Cockburn, 28 October 1829, C.O. 123/40, F.O. 15/9. 6

7 Grant of land by the Superintendent recorded, in accordance with the Secretary of State s instructions that no occupancy of land shall henceforth be permitted except under the written authority of the Superintendent. The grant is accompanied by a provision that no compensation can be claimed in consequence of any future treaty with Spain or any evacuation or other measure for the welfare of the Settlement In a despatch from the Secretary of State, Earl Bathurst, dated March 16 th, 1822, the Superintendent, Lieutenant Colonel Arthur, was authorized to act on the Consolidated Slave Law of Jamaica, but cautioned Arthur against inflicting corporal or capital punishment (even upon British subjects), because the right of enforcing any Law in a Territory not ceded to His Majesty rests upon such questionable authority the authority of a Superintendent on Shore is of so doubtful a nature in point of Law that it may be considered rather conventional than strictly legal In 1829, the Secretary of State, in a despatch referring to a bill passed by the Legislative Assembly of Honduras (more commonly referred to as the Public Meeting), specifically affirmed that no right of Legislation is vested in the Magistrates, who are merely authorised to make Regulations affecting the internal affairs of the Settlement These limitations were reiterated frequently in communications with Arthur s superiors. 19 In 1826, Britain signed a Treaty of Amity with the newly independent Mexico, which reaffirmed the boundaries of British rights, privileges and immunities laid down in the 1786 Convention. 20 Nevertheless, by 1835, British settlers had extended their occupation outside the treaty areas, causing the Superintendent to express frustration at the limited extent of his authority: in accordance with instructions of 1817 no occupation of land is permitted by the Superintendent, but that this restriction only applies to the Territory referred to in the above Treaties. The result of absence of regulation in the other parts occupied by the British has been great waste and devastation, with which, however, the Superintendent has not been able to deal owing to instructions not to raise questions respecting those Treaties or His Majesty s claims to possession In 1840, by the Authority vested in him by her Most Gracious Majesty Queen Victoria the First, the Superintendent of Belize declared the laws of England in force in the settlement of British Honduras. This proclamation also declared that all Local Customs, Laws, 16 Burdon II, p Burdon II, p Burdon II, p E.g. Burdon II, p. 340 (A long Despatch from the Secretary of State to the Superintendent regarding the Legislative Meeting s failure to provide funds to repair the Barracks, and reviewing the constitution of the Colony, emphasizing that it has no legal status whatever.); Burdon II, p. 353 (Secretary of State to the Superintendent, replying to a memo requesting permission to cultivate the soil, that it is not a favourable moment to discuss the question with Spain.) 20 Burdon II, p Burdon II, p

8 Regulations, and Enactments whatsoever which are repugnant to the spirit of the Law of England and opposed to the principles of Equity and Justice are and shall be null and void 22. As noted above, much to his frustration, the authority vested in the Superintendent at this time by her Majesty extended only to the Sibun River. 26. In 1852, the Governor of Jamaica affirmed the self-governance rights of the British settlers, while noting the difficulties that prevented a full assumption of British territorial sovereignty over the area. 23 Consequently, in January 1853, the Superintendent reported to the Governor of Jamaica that the Public Meeting had passed an Act to Amend the System of Government of British Honduras. The Secretary of State approved the bill and authorized the Superintendent to proclaim Her Majesty s assent to the Act to amend the system of government of British Honduras. 24 This Act created an elected Legislative Assembly for the Settlement. 27. This enactment, however, did not change the restrictions on British authority. In November 1853, the Superintendent complained that so long as the political condition of the Settlement remains unaltered and the territorial sovereignty of Spain exists, it is difficult to define to what extent prerogative and authority of the British Crown prevail. In fact, the Settlement is little more than a Protectorate, over which the Crown appoints its principal officers On February 7 th, 1855, the Settlement s Legislative Assembly passed An Act to declare the Laws in force in this Settlement. The Legislative Assembly s enactment of Imperial statutes had been recommended by the Governor of Jamaica as a step towards giving to British Honduras the form of a British Colony The Secretary of State would then be able to form an opinion as to what further assistance of the Imperial Legislature would be necessary. 26 The Act received Royal Assent and was proclaimed on March 8, By this same year, the Superintendent had made grants of land south of the Sibun River, between it and the Sarstoon, though it is entirely unclear on what authority he did so. However, the 1859 Convention between Her Majesty and the Republic of Guatemala, relative to the Boundary of British Honduras retroactively (to 1850) confirmed the boundaries as extending to the Sarstoon River as far as Gracias a Dios falls, thus incorporating today s Toledo District, and providing legitimacy to those grants. 30. Finally, on February 12 th, 1862, Her Majesty issued Letters Patent creating the Colony of British Honduras and Superintendent Seymour was appointed Lieutenant Governor of the Colony (still subordinate to the Governor of Jamaica). 27 In 1870, the Legislative Assembly passed an Act to establish non-representative Crown Colony rule, abolishing itself and providing instead for an appointed Legislative Council. 28 Part II: History of the Accommodation and Protection of Maya land use in Belize 22 Burdon II, p Burdon II, p Ibid., p.171. Burdon was unable to locate a copy of this Act. He notes: It is probably contained in some of the missing pages of Laws The composition of the first meeting of the Legislative Assembly, January 1854, is given in Assembly 1854 as three non-elective and sixteen elective members. 25 Ibid. p Burdon III, p Ibid., p Ibid., p

9 Early Interactions between the Maya and the British 31. As noted in my First Affidavit and that of Grant Jones, current scholarship indicates that Maya people have inhabited the Toledo Distsrict, in greater and lesser numbers, since the prior to first contact with Europeans. 29 Belizean historian Assad Shoman agrees that, Contrary to what passes as conventional wisdom, the Maya did not just enter Belizean territory in the nineteenth century; they have been here, and in significant numbers, all along The first major interactions between the British and Maya peoples occurred in the Northern District, where British loggers came into conflict with Maya groups involved in the Caste War with Mexico in the Yucatan, who were displeased with the loggers intrusions into their territory. There were a number of military skirmishes, to which Britain showed little interest in devoting resources, and diplomatic efforts. The results of these interactions were declarations of friendship and an 1848 agreement by the British to permit peaceful trade with the Maya on the same terms as the Spaniards so long as they conform to the laws of the Settlement. 31 Later, the Yucatec Maya threatened to associate themselves with the British in their negotiations with the Mexican government, successfully extracting a commitment from the Mexicans to grant them their lands in perpetuity This success with the Mexicans encouraged the Yucatec Maya, who in the late 1850s and 1860s began to demand payment from British loggers extracting resources from their lands, carrying out raids where their demands were not met. 33 British authorities in the Settlement were obliged to deal with the situation with the knowledge that Britain had no interest in committing military resources to it, particularly since it was doubtful whether the area occupied by the Maya fell within the area of permissible British occupation under the treaties with 34 Spain. 34. On the western edge of British Honduras, Governor in his Blue Book report for 1867 noted: there were similar conflicts. The Lieutenant The year opened in the midst of gloomy anxiety caused by the invasion of the Colony by the Mexican Indians, and the want of a sufficient force to repel them. The whole of the Western District was deserted. the arduous but entirely successful campaign of Brigadier-General Harley resulted in the total expulsion of the Indians from our Territory. The alarm which had been excited by the Indian raids did not however easily subside; and agriculture and woodcutting were for a long time suspended in the Western District. The year closed with intelligence 29 First Affidavit of Richard Wilk, 10-14; Firzt Affidavit of Grant Jones, Assad Shoman, Thirteen Chapters of a History of Belize. (Belize: The Angelus Press, 1994) as cited by Laurie Kroshus Medina, history, culture, and place-making: native status and maya identity in belize (1999) 4 Journal of Latin American anthropology 134 at Burdon III, p Ibid., p.122, 127, Ibid., p.192. (In September of 1856, the Superintendent reported that the Indian Chief, Luciano Quc, accompanied by his troops, has made an unexpected and extortionate demand of toll on a large quantity of mahogany felled and accumulated in the Rio Hondo by Messrs. Young and Toledo, valued at 10,000. Threats have been made that the works on the British side will be burnt if the demand is not complied with. ), p.259. (Maya Chieftan Marcus Canul demanded, in writing, that the British Honduras Trading Company make payment of $2,000 being 8 years rent at $250 p.a. for cutting mahogany on lands on the left side of Blue Creek, Rio Hondo, which they claimed as Mexican territory. ) 34 Ibid., p

10 of an irruption of Santa Cruz Indians into the country about Corozal, the issue of which no one at that time could forsee In July 1868, an emissary travelled to the Yucatan and delivered the message that it is this Government s desire to afford all means of protection to the Indian Tribes on the Western side of the Hondo, to the Governor of Yucatan. 36 As will be discussed in more detail below, the British attempted to ensure peaceful relations with the Maya through formally recognizing their leaders, or alcaldes. Despite such an appointment, one such Maya Chief, Asuncion Hec, 37 attempted to assert for himself territorial control over all of the lands from the Capital of the Yucatan to the Belize river. 38 The British responded by burning the town of San Jose as punishment for complicity with Mr. Hec, and established regulations that applied specifically to the Yucatan Mayas settled in British Honduras under his leadership: If Ancencion Ek and his Indians are prepared to acknowledge our rights, - will make submission for the past, - and promise to observe the regulations as hereinafter or such other as the Lieutenant Governors of this Colony may from time to time determine upon, he and they will be permitted to reside on British Territory and to engage in trade or agricultural pursuits... Regulations above referred to No Indian will be at liberty to reside upon or occupy or cultivate any land without previous payment or engagement to pay rent whether to the Crown or the owner of the land. Each village must select its own headman who will be responsible to the Government to for the peace thereof Similar conflict did not arise with Maya in the south, however, and they were paid scant attention. Superintendent Seymour wrote in 1858 that in addition to the Yucatecs in the north: There are however, other tribes of Indians within our borders who come in contact with civilization but once a year. They cultivate maize somewhere in the depths of the forest and fatten pigs whose surplus produce they annually bring to some village market, procure what they require, principally salt and disappear again. We know but little of these people. They have learnt to respect the mahogany tree in their clearing operations so there is peace between them and our woodsmen. When fallen in with accidentally these men are found in the usual Indian working dress a hat and a towel and are in manners civil but shy It is not clear whether he was referring to southern Maya or those in the west, because the following year, he noted in his annual report that: 35 Burdon III, p Burdon III, p He is elsewhere referred to in the archival record as Ascension Ek. 38 Burdon III, p Ibid., p Burdon III, p

11 The Southern portions of our territory have never been explored, and according to the Crown Surveyor they contain inhabitants who, he believes, have never yet been seen by European or creole. The rivers south of the Sibun have their source in the mountains whose line of water-shed forms the division between ourselves and Vera Paz. Adown these streams, at least down Mullins River Mr. Faber (the Crown Surveyor) has occasionally seen floating, rough wooden bowls and other implements which testify to the existence of some inhabitants utterly unknown to us One of the earliest Anglophone sources on the Toledo region stems from an 1868 trip of Charles Swett, a Southerner from the United States, who ventured into British Honduras to assess its suitability as a post-confederate settlement. 42 Swett s diary of his journey describes native villages near the mouth of the Rio Grande, and cane cultivation. 43 During his trip, Swett made camp at several small villages: we moved down the river with the intention of camping near its mouth till morning, when we expect to ascend the Golden-stream. At 5.05 our boat landed at a small village, half a mile below the river s mouth, where we remained for the night. 44 Swett also describes examining a native s plantation. 45 Accomodation of Maya Land Use a. The Early Colony 39. In 1862, with the proclamation of the Colony of British Honduras, all lands within the territory of the colony could finally be treated as Crown lands. 46 The issue of Maya land use in the colony thus took on a new importance. For it s own reasons, initially to ensure pacific relations, and later to ensure an adequate supply of labour and food for the colony, British policy was to accommodate Maya land use and encourage Maya settlement. 40. That same year the Colony was formed, the Lieutenant Governor suggested creating Indian Reserves to protect areas of Maya land use, within which they could continue to manage the land according to their customary ways. Governor Langden noted: There are upon the Sibun River some villages inhabited by Indians, and until last year there were similar villages in the Western District, San Pedro, Santa Cruz, Chumbalache, San Jose, Nranjal, Quam Hill, etc., - several of these villages are situate upon the Lands claimed either by the British Honduras Company or Mssers. Young Toledo & co., but wherever they are situate on Crown Lands I think the villages and a sufficient surrounding space should be reserved in the hands of the Crown for the use of the Indians, - no marketable titles being issued to them to enable them to dispose of such lands, - but the land being divided 41 Burdon III, p Charles Swett, A Trip to British Honduras and to San Pedro, Republic of Honduras. New Orleans: George Ellis, Ibid., p Ibid., p Ibid., p Burdon III, p

12 amongst them, from time to time, by the Alcalde or Chief man amongst them, as may be most convenient Governor Langdon s suggestion was adopted in the first Crown Lands Ordinance in 1872, which set out the principles governing disposition of Crown lands. The new ordinance specifically provided the Lieutenant Governor with authority to reserve lands for the use and enjoyment of such Indians and Charibs, as the case may be, so long as it may be required for the purpose wherever Maya villages existed. These reserves were to be created and surveyed at the Crown s expense, and lands within them were to be allocated by the alcalde or Headmen: Wherever before the passing of this Ordinance, an Indian village or settlement has been made or established upon any Crown Land, or wherever any Charib village or settlement has been so made or established, it shall be lawful for the Lieutenant Governor to reserve such land for the use and enjoyment of such Indians or Charibs, as the case may be, so long as it may be required for the purpose; and there shall be issued to the Indians or the Charibs, through their Alcaldes or Headmen, or, if there be no Alcaldes or Headmen, then through the nearest Paid Magistrate, permits to occupy particularly defined portions of such lands during pleasure 42. In 1882, the Toledo District was created, and the first appointed District Magistrate was Mr. F. Orgill. 48 Mr. Orgill was involved in the first recorded treatment of Maya land rights in Toledo, when he agreed to the settlement of the village of San Antonio by Maya from Guatemala: The town of San Antonio in the position marked C has only existed a few years, previous to which time the inhabitants lived in the Republic of Guatemala but being dissatisfied with the treatment of the Governor of Peten they communicated with the District Magistrate of Punta Gorda who visited them and after some negotiation they traveled eastward and settled in their present position. So far as I am aware they pay nothing for their lands. There is some doubt in my mind as to whether San Antonio is actually within the limits of the Colony as the journey to it occupies three days from Punta Gorda. The road is said to run due West and the Colony is only 30 miles broad at that point Neither Mr. Orgill nor the Acting Surveyor who wrote this report knew whether or not the village of San Antonio actually fell within the borders of British Honduras. In a despatch between Lord Knutsford and Hubert Jerningham, it is noted that, It should be ascertained wither San Antonio is within the Colony and if it is within the Colony a reserve should be marked 47 Despatch No. 39 of 1868, cited in Despatch No. 8 of 1884, PRO CO 123/172 as cited in O. Nigel Bolland and Assad Shoman, Land in Belize, (Institute of Social and Economic Research University of the West Indies, Jamaica, 1997) at p Despatch dated 9 May 1882, F. Barlee, A District Magistrate at Toledo: Recommends Appointment of, and encloses a Memorial from Certain Planters and others praying for such an Appointment. As cited by Wainwright at pp Millson, A Report on the Western District, 7 Dec 1883, PRO CO 123/171, p. 7. Cited in Fowler, 1884, as reproduced in Joel D. Wainwright, Decolonizing Development. Colonialism, Mayanism and Agriculture in Belize. (Ph.D. Dissertation submitted to the Faculty of the Graduate School of the University of Minnesota, December 2003) in footnote 153, p.133 [herinafter Wainwright]. 12

13 out. 50 Indeed, the entire village of San Antonio was eventually relocated by mutual agreement of colonial authorities and village members, and renamed San Antonio Nuevo, to ensure the village and subsequent reservation would be well within British Honduras territory. 51 The old village may have been what is now the Maya village of Pueblo Viejo ( old town ). 44. The principle of protecting Maya land use continued to enjoy official support after the 1872 Ordinance was passed, although no reserves were actually created until the 1890s. In 1884, the Acting Governor urged progress on the creation of reserves, calling them a mere act of justice on the ground of former recognition of the claim of these natives. 52 It is important to note that reserves to protect these just claims involved not only existing Maya communities, but also for those who might return to the area from Guatemala. Authorities suggested that a well defined tract of Government land be set aside for the undisturbed possession of Indians as a refuge for those who are desirous of settling the Colony, 53 in anticipation of a probable influx of Indians from the Guatemala side of the border A new Crown Lands Ordinance passed in 1886 also provided for the creation of Indian and Charib reserves for the use and benefit of the Indian and Charib inhabitants. In keeping with the concern to protect incoming Maya, the Ordinance did not limit reserve creation to areas of existing land use: Nothing herein contained shall prevent the Governor in Council from excepting from the sale in the ordinary way and reserving to Her Majesty the right of disposing of, in such manner as for the public interest may seem best, such lands as may be required as Indian or Carib Reserves or for the use and benefit of Indian and Carib inhabitants All reserves shall be notified in the Government Gazette and set forth on plans in the Surveyor General s Office In 1893, the first Indian reservation was established, being 1,260 acres around the village of San Antonio, Toledo District. 56 Maya living on the reservations were responsible for paying a nominal occupation fee, and land was distributed according to Maya custom; leases were not issued on reservation land, though some leases continued to be given sporadically around other villages as settlement expanded. b. Early twentieth century 47. Creating of reserves around areas of Maya villages was a formal and affirmative method of protecting their customary land use. The government also consciously accepted Maya customary land use even where it did not eventually take the step of creating a reserve. Throughout the history of British Honduras, there are examples of colonial leaders consistent refusal to legislatively interfere with Maya customary land use, or to coerce Maya farmers with 50 Lord Knutsford to Hubert Jerningham, PRO, CO 123/190 as cited by Wainwright in footnote 150 at p Karl Sapper, Northern Central America with a Trip to the Highland of Anahuac. Translated by A.M. Parker. (Brunswick: Printed and Published by Friedrich Viewig and Son, 1897), p Report on the Western District in Wainwright, supra note 49 [emphasis added]. 53 Curtis Berkey, Maya Land Rights in Belize and the History of Indian Reservations, Report to the Toledo Maya Cultural Council (Indian Law Resource Centre, May 1994) at p Wainwright, supra note 49, p. 90, and Report on the Western District, 7 Dec 1883, supra note Crown Lands Ordinance 1886, s Annual Report on the District of Toledo for the Year Ending 1896, April 19, 1897, CO 123/223 as cited in Berkey, supra note 53, p

14 regard to where they might live. For example in 1913, a church official urged the government to force the Maya to live in towns, saying: I have been told that a delegation of Indians from the neighbourhood of San Antonio is now in Belize bothering your Excellency. At present the Indians whom they are representing are from the bush, scattered about and isolated, like wild animals. We and your Excellency also I am sure are desirous to have them learn at least a few of the most rudimentary sanitary laws and some of the first duties of persons living in a civilized community. They will have to be forced to learn these laws and duties, and this forced-education can only be obtained through the schools. Now, if they are allowed to continue as they do at present with scattered and hidden away in the forests, these children cannot be forced to attend schools, but will grow up wild and knowing less if possible, than their parents know. Please therefore, do all you can to cause them to live together in a village say San Antonio The Acting Colonial Secretary responded rather curtly that I am directed by the Acting Governor to reply to your letter... asking that the San Antonio Indians may be compelled to live in villages, and to say that His Excellency is unable to adopt your suggestions. 58 A similar request from Bishop Hopkins made the following year received a similar negative response from the government As noted above, 60 in the absence of regulation by occupancy fees outside reserves, Maya farmers used a loose form of leasing to notify the government of their presence and pay their dues. As a Forest Officer complained in 1921, referring to the Maya: most of the lessees whose lands are subject to survey are cultivating in isolated places. They apply to lease a piece of land as per plan shewn to them, when it is approved to them they go any where they can find the best land & cut it. They very seldom lease a piece of land for more than 5 years. I beg to suggest that in future no land be given them unless it is surveyed The Acting Surveyor General, supported the Forest Officer, reporting: If there is to be any conserving of the forests in this Colony applications from Indians at the back of Punta Gorda should not entertained, as they apply for say 25 or 50 acres of land for 5 years in three years they have cut down the virgin forests, and simply plant corn, they then apply for 50 more acres, and immediately it is approved they ask that the former lease be cancelled, so that they are cutting down the virgin forest all the time, and making no use of the land formerly cut 57 Minute Paper , "The San Antonio Indians. Wishes to have them compelled to live in a village", April 30, 1913 (Belize Archives) p. 36. A photo-copy of this document is attached to this affidavit as Exhibit R.W Ibid, p Minute Paper , Inducements to Indians to live in Villages, March 1914 (Belize Archives) p. 4. A photocopy of this document is attached to this affidavit as Exhibit R.W See 46, supra. 61 Minute Paper , Conservation of Forests in the Colony Respecting, August 20, 1920, p. 3. A photocopy of this document is attached to this affidavit as Exhibit R.W

15 down. Most of the applications are approved, subject to survey and in many cases the land is never surveyed before the expiration of the lease, and it is a noted fact that the Indians are always on the move. I should be pleased to receive instructions as to whether it is intended to put a check on this sort of thing going on No such instructions were forthcoming to check Maya from using the land in their customary fashion; one official noted that Indians have to be dealt with carefully; drastic measures will drive them farther back into the bush or out of the Colony. 63 Thus, customary practice, sometimes vaguely clothed as leasing and sometimes not, continued to be accepted and tolerated. When reserves were expanded to include areas of Maya use, lease deposits were refunded, since customary land management through the alcaldes was institutionalized within the reservations. 64 Virtually no effort was made to force them to adapt their actual use permanently to the confines of their leases. Reserves themselves were seen as a solution to the difficulties of regulating Maya land use well into the twentieth century; government documents repeatedly described the objective of reserving lands for Indians, being to provide for those people who traditionally do shifting cultivation and in order to control the acreage used in this manner Government officials on the ground generally saw Maya as squatters who could be moved or manipulated for their own objectives, be they preservation of mahogany, access to labour, or agricultural development. To this end, they often threatened, bullied, or persuaded the Maya to move. However, such attempts rarely if ever received the backing of the Colonial Secretary or Legislature. On the contrary, on at least one occasion when bureaucrats attempted to move Maya farmers off their lands because they did not hold leases and were not located in a reserve, the response of colonial authorities was to gainsay the officials and create a reserve protecting their use. In 1924, the District Commissioner of Toledo notified the Colonial Secretary of such a situation: I have just received a deputation of Indians from Aguacate Creek Pueblo, and Machacca Locality, in all 43, and headed by the 1 st Alcalde Mateo Bolon of the Village. The object of their visit was to lay before me the matter of their removal from the lands, which as a body, they have been in occupation for many years, and which through Mr. S.P. Arnold, the Forest Inspector, on behalf of the Surveyor General, they have been ordered to leave. By a Sketch of the Reserve Lands shown to me by Mr. Arnold, it appears to me that this particular body of Indians (Aguacate Creek Village) has been overlooked by some means or other- it would not have been had I been here. The people are greatly concerned over the fact that they have to leave the Village - their home for so many years now, and where most of them were born and brought up. During the long years of the Great War (I write from experience) 62 Ibid, p Ibid. p Minute Paper , Refund of deposits on Applications by Indians to lease land in the Toledo District November 21, 1924 (Belize Archives). A photo-copy of this document is attached to this affidavit as Exhibit R.W See e.g. Annual Report of the Survey Department for 1959, Belize British Honduras (Belize Archives). A photocopy of relevant portions of this document is attached to this affidavit as Exhibit R.W

16 these people greatly assisted in keeping Belize supplied with Foodstuffs and pigs; other Pueblos did the same-but these people also at my instigation planted out more than they usually did to assist. I happen to know that the Guatemalan Authorities are doing all they possibly can to get Indians to go back, promising them all sorts of good things. I also know that a certain person here wants to ship a lot to Spanish Honduras; although they as a body originally came from Guatemala - they should not be allowed to become a sort of plaything for irresponsible and scheming persons, but protected. Taken as a body the Indians are law abiding, industrious, and in my reply to them today have promised to do all in my power to get the matter rectified to their benefit, so that they will not have to leave the little village which has been their home for so many years, and which they are so proud of (so am I) and in their behalf I strongly appeal for a reconsideration of the boundaries of the Indian Reserve, and taking in this village with a certain portion of lands around it, if possible The oversight was subsequently corrected, and the lands used by the village of Aguacate were reserved as well. Over the seventy years following the creation of the first reserve, the area set aside as Indian reserves was gradually increased to accommodate expansion and movement in actual Maya land use. A major adjustment was made to the reservations in 1933, when three new reserves were created. 67 The San Antonio reserve was gradually increased in size, and other reserves were created, and expanded, to the point where, by 1962, about 77,727 acres had been formally reserved for Maya communities At the same time a major expansion in reserves took place in 1933, forest officers wanted to confine the Maya to the new reserves. The Conservator of Forests, Mr. Stevenson, recommended both that the practice of electing alcaldes be discontinued; and that the Maya community of Joventud be forcibly removed to a reservation, and the village burned to the ground. 69 The government did not implement either recommendation. c. Late twentieth century, pre-independence period 54. In the 1950s, the government became concerned about overpopulation on the Indian reserves, and decided to encourage Maya to settle outside reservations with a plan to attract Indians back to the southern block, noting, [t]he problem is to reverse the present drift of Indians from this area to Guatemala and to the new Rio Grande Reserve. 70 While believing the 66 Minute Paper , Correspondence from the District Commissioner (Toledo) to the Colonial Secretary, May 21, 1924 (Belize Archives), pp A photo-copy of this document is attached to this affidavit as Exhibit R.W Minute Paper , Indian Occupation of the Toledo District, January 26, 1933 (Belize Archives), pp A photo-copy of this document is attached to this affidavit as Exhibit R.W Annual Report of the Survey and Lands Department for the year A photo-copy of relevant portions of this document is attached to this affidavit as Exhibit R.W Summary of Third Progress Report on Indian Occupation of the Toledo District p.2, and Third Progress Report on Indian Occupation of the Toledo Disctrict p. 13, both contained in Minute Paper , supra note Extract from Record of Third Metting of Development Committee held in the Council Chamber at 10 a.m. on Thursday, 9 th April, 1953 p. 3 & p.5, contained in Minute paper , Land Reservation: Toledo District A photo-copy of the Minute Paper is attached to this affidavit as Exhibit R.W