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Spain's only title to the Indies was the Pope's charter to evangelize the natives

Source: Situado and Sabana #82

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CONQUEST BY CONTRACT
 The fifth policy [bearing on the Florida conquest], that of conquest by contract, was yet another blend of international law, canon law, and trial and error. During the period of exploration, European powers often took possession of terra nullius, or lands unclaimed by any Christian monarch, with religious ceremonies and symbols alone. Planting crosses of stone or wood or carving a cross on a tree, they paid as little attention to native inhabitants as to forest creatures; in this discourse the intended recipients of the signs were not the watching Indians, but Europeans off the scene to whom the signifying acts would be reported.

Menendez's "properly certified and recorded" act of possession-taking, according to historian Eugene Lyon, "validated the Spanish king's continental title, . . . granted through the donation of Pope Alexander VI." It "constituted the lands of North America as tierras de realengo" which the Spanish Crown or its representatives could either retain or alienate to third parties; "it was the semifeudal basis for the power of treaty making with the native peoples, in the name of a king who now suddenly owned, and could dispose of, the continent that they inhabited."

Written treaties with the Indians served three purposes. They provided a European power with a back-up proof of claim to show to rivals; they gave ritual endorsement to amicable relations between two defined groups, one of Indians and the other of 'Europeans; and they satisfied the European need to put the native leadership under legal obligation. Charles Gibson, in his 1977 presidential address to the American Historical Association, questioned whether the Spanish ever treated with Indians in the manner of the English, French, Dutch, or Portuguese. The network of formal agreements whereby Spaniards legitimated hegemony over foreign populations were not, he argued, formal agreements between equally sovereign entities, the only parties capable of treaty making; they were, instead, "capitulaciones," that is, contracts between unequals, the familiar arrangements of a patrimonial, hierarchical society that bound lord to vassal, patron to client, and God to man.

Yet in the 16th and 17th centuries, any effort on the part of Europeans to "tratar y contratar," or "treat and contract," with American natives seems to have had feudal overtones. The treaties that ensued were not understood, at least by Europeans, to be agreements between equals, nor were they meant to safeguard native sovereignty. In 1646, to give an example, the govemment of Virginia made a "treaty" with Necotowance, "King of the Indians," whereby his people ceded a large part of their territory to the English king, received a portion of it back with title derived from the Crown, and agreed to pay the English tribute.

The fundamental contract which a Spanish conquistador attempted to negotiate with caciques called for them to promise obedience to the king. In taking the oath of fealty a cacique proclaimed himself a vassal of the King of Spain and his own vassals Spanish subjects. To represent all such new subjects as under indoctrination was politically expedient, for Pope Alexander VI's bulls of donation had been a charter to evangelize, and, as Dominicans were fond of pointing out, Spain had no other title to the Indies. Therefore, the conquistador pressured the same cacique to acquiesce to Christianity and register a request for missionaries.The chief s promise of obedience to God committed him to become a Christian and committed his vassals to attend doctrina, learn the prayers and catechism, and be subject to the law of God. Because a promise obtained by coercion was invalid, the Spanish showed a decent respect for free will, or at least for the formalities thereof. Every convert had to accept Christianity of his own volition and every vassal declare himself a vassal by choice-legal precautions which Gibson termed "theoretical voluntarism." Properly made, such promises were binding, enforceable obligations resembling a marriage vow or an army induction. The doctrina indio, vassal of a Christian cacique, was no longer free to do as he pleased. With the consent of his natural lord he had made solemn promises, and the Spanish stood ready to make him fulfill  them.

(Bushnell SS)