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U.S.

Supreme Court
Johnson & Graham's Lessee v. McIntosh, 21 U.S. 8 Wheat. 543
543 (1823)
Johnson & Graham's Lessee v. McIntosh
21 U.S. (8 Wheat.) 543
ERROR TO THE DISTRICT
COURT OF ILLINOIS
Syllabus
A title to lands under grants to private individuals made by Indian tribes or nations
northwest of the River Ohio in 1773 and 1775 cannot be recognized in the courts
of the United States.
Discovery the original foundation of titles to land on the American continent as
between the different European nations by whom conquests and settlements were
made here.
Recognition of the same principle in the wars, negotiations, and treaties between
the different European powers.
Adoption of the same principle by the United States.
The exclusive right of the British government to the lands occupied by the Indians
has passed to that of the United States.
Foundation and limitation of the right of conquest.
Application of the principle of the right of conquest to the case of the Indian
savages. Nature of the Indian title, as subordinate to the absolute ultimate title of
the government.

Effect of the proclamation of 1763.


Titles in New England under Indian grants.
This was an action of ejectment for lands in the State and District of Illinois,
claimed by the plaintiffs under a purchase and conveyance from the Piankeshaw
Indians and by the defendant under a grant from the United States. It came up on a
case stated upon which there was a judgment below for the defendant. The case
stated set out the following facts:
1st. That on 23 May, 1609, James I, King of England, by his letters patent of that
date, under the great seal of England, did erect, form, and establish Robert, Earl of
Salisbury, and others, his associates, in the letters patent named and their
successors into a body corporate and politic by the name and style of "The
Treasurer and Company of Adventurers and Planters of the City of London for the
first Colony in Virginia," with perpetual succession and power to make, have, and
use a common seal, and did give, grant, and confirm unto this company, and their
successors,
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under certain reservations and limitations in the letters patent expressed,
"All the lands, countries, and territories situate, lying, and being in that part of
North America called Virginia, from the point of land called Cape or Point
Comfort all along the seacoast to the northward two hundred miles, and from the
said Cape or Point Comfort all along the seacoast to the southward two hundred
miles, and all that space and circuit of land lying from the seacoast of the precinct
aforesaid up into the land throughout from the sea, west and northwest, and also all
the islands lying within one hundred miles along the coast of both seas of the
precinct aforesaid, with all the soil, grounds, rights, privileges, and appurtenances
to these territories belonging and in the letters patent particularly enumerated,"
and did grant to this corporation and their successors various powers of
government in the letters patent particularly expressed.
2d. That the place called in these letters patent Cape or Point Comfort is the place
now called and known by the name of Old Point Comfort, on the Chesapeake Bay
and Hampton Roads, and that immediately after the granting of the letters patent,

the corporation proceeded under and by virtue of them to take possession of parts
of the territory which they describe and to form settlements, plant a colony, and
exercise the powers of government therein, which colony was called and known by
the name of the Colony of Virginia.
3d. That at the time of granting these letters patent and of the discovery of the
continent of
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North America by the Europeans, and during the whole intermediate time, the
whole of the territory in the letters patent described, except a small district on
James River, where a settlement of Europeans had previously been made, was
held, occupied, and possessed in full sovereignty by various independent tribes or
nations of Indians, who were the sovereigns of their respective portions of the
territory and the absolute owners and proprietors of the soil and who neither
acknowledged nor owed any allegiance or obedience to any European sovereign or
state whatever, and that in making settlements within this territory and in all the
other parts of North America where settlements were made under the authority of
the English government or by its subjects, the right of soil was previously obtained
by purchase or conquest from the particular Indian tribe or nation by which the soil
was claimed and held, or the consent of such tribe or nation was secured.
4th. That in the year 1624, this corporation was dissolved by due course of law and
all its powers, together with its rights of soil and jurisdiction under the letters
patent in question were revested in the Crown of England, whereupon the colony
became a royal government with the same territorial limits and extent which had
been established by the letters patent, and so continued until it became a free and
independent state, except so far as its limits and extent were altered and curtailed
by the Treaty of February 10, 1763, between Great Britain and France and by the
letters patent granted by the King of England

them, and with the like consent established several military posts and settlements
therein, particularly at Kaskaskias, on the River Kaskaskias, and at Vincennes, on
the River Wabash, within the limits of the Colony of Virginia, as described and
established in and by the letters patent of May 23, 1609, and that the government
of Great Britain, after complaining of these establishments as encroachments and
remonstrating against them, at length, in the year 1756, took up arms to resist and
repel them, which produced a war between those two nations wherein the Indian
tribes inhabiting and holding the countries northwest of the Ohio and on the
Mississippi above the mouth of the Ohio were the allies of France, and the Indians
known by the name of the Six Nations or the Iroquois and their tributaries and
allies were the allies of Great Britain, and that on 10 February, 1763, this war was
terminated by a definitive treaty of peace between Great Britain and France and
their allies by which it was stipulated and agreed that the River Mississippi, from
its source to the Iberville, should forever after form the boundary between the
dominions of
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Great Britain and those of France in that part of North America and between their
respective allies there.
6th. That the government of Virginia, at and before the commencement of this war
and at all times after it became a royal government, claimed and exercised
jurisdiction, with the knowledge and assent of the government of Great Britain, in
and over the country northwest of the River Ohio and east of the Mississippi as
being included within the bounds and limits described and established for that
colony, by the letters patent of May 23, 1609, and that in the year 1749, a grant of
six hundred thousand acres of land within the country northwest of the Ohio and as
part of Virginia was made by the government of Great Britain to some of its
subjects by the name and style of the Ohio Company.

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for establishing the Colonies of Carolina, Maryland, and Pennsylvania.
5th. That sometime previous to the year 1756, the French government, laying a
claim to the country west of the Alleghany or Appalachian Mountains on the Ohio
and Mississippi Rivers and their branches, took possession of certain parts of it
with the consent of the several tribes or nations of Indians possessing and owning

7th. That at and before the commencement of the war in 1756 and during its whole
continuance and at the time of the Treaty of February 10, 1763, the Indian tribes or
nations inhabiting the country north and northwest of the Ohio and east of the
Mississippi as far east as the river falling into the Ohio called the Great Miami
were called and known by the name of the Western Confederacy of Indians, and
were the allies of France in the war, but not her subjects, never having been in any
manner conquered by her, and held the country in absolute sovereignty as
independent nations, both as to the right of jurisdiction and sovereignty and the
right of soil, except a few military posts and a small territory around each,
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which they had ceded to France, and she held under them, and among which were
the aforesaid posts of Kaskaskias and Vincennes, and that these Indians, after the
treaty, became the allies of Great Britain, living under her protection as they had
before lived under that of France, but were free and independent, owing no
allegiance to any foreign power whatever and holding their lands in absolute
property, the territories of the respective tribes being separated from each other and
distinguished by certain natural marks and boundaries to the Indians well known,
and each tribe claiming and exercising separate and absolute ownership in and
over its own territory, both as to the right of sovereignty and jurisdiction and the
right of soil.
8th. That among the tribes of Indians thus holding and inhabiting the territory
north and northwest of the Ohio, east of the Mississippi, and west of the Great
Miami, within the limits of Virginia, as described in the letters patent of May 23,
1609, were certain independent tribes or nations called the Illinois or Kaskaskias
and the Piankeshaw or Wabash Indians, the first of which consisted of three several
tribes united into one and called the Kaskasias, the Pewarias, and the Cahoquias;
that the Illinois owned, held, and inhabited, as their absolute and separate property,
a large tract of country within the last mentioned limits and situated on the
Mississippi, Illinois, and Kaskaskias Rivers and on the Ohio below the mouth of
the Wabash, and the Piankeshaws another large tract of country within the same
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10th. That on 7 October, 1763, the King of Great Britain made and published a
proclamation for the better regulation of the countries ceded to Great Britain by
that treaty, which proclamation is referred to and made part of the case.
11th. That from time immemorial and always up to the present time, all the Indian
tribes or nations of North America, and especially the Illinois and Piankeshaws and
other tribes holding, possessing, and inhabiting the said countries north and
northeast of the Ohio east of the Mississippi and west of the Great Miami held
their respective lands and territories each in common, the individuals
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of each tribe or nation holding the lands and territories of such tribe in common
with each other, and there being among them no separate property in the soil, and
that their sole method of selling, granting, and conveying their lands, whether to
governments or individuals, always has been from time immemorial and now is for
certain chiefs of the tribe selling to represent the whole tribe in every part of the
transaction, to make the contract, and execute the deed, on behalf of the whole
tribe, to receive for it the consideration, whether in money or commodities, or
both, and finally to divide such consideration among the individuals of the tribe,
and that the authority of the chiefs so acting for the whole tribe is attested by the
presence and assent of the individuals composing the tribe, or some of them, and
by the receipt by the individuals composing the tribe of their respective shares of
the price, and in no other manner.

Page 21 U. S. 549
limits, and as their absolute and separate property, on the Wabash and Ohio Rivers,
and that these Indians remained in the sole and absolute ownership and possession
of the country in question until the sales made by them in the manner herein after
set forth.
9th. That on the termination of the war between Great Britain and France, the
Illinois Indians, by the name of the Kaskaskias tribes of Indians, as fully
representing all the Illinois tribes then remaining, made a treaty of peace with
Great Britain and a treaty of peace, limits, and amity, under her mediation, with the
Six Nations, or Iroquois, and their allies, then known and distinguished by the
name of the Northern Confederacy of Indians, the Illinois being a part of the
confederacy then known and distinguished by the name of the Southern
Confederacy, and sometimes by that of the Western Confederacy.

12th. That on 5 July, 1773, certain chiefs of the Illinois Indians, then jointly
representing, acting for, and being duly authorized by that tribe in the manner
explained above, did by their deed poll, duly executed and delivered and bearing
date on that day, at the post of Kaskaskias, then being a British military post, and at
a public council there held by them for and on behalf of the said Illinois nation of
Indians with William Murray, of the Illinois country, merchant, acting for himself
and for Moses Franks and Jacob Franks, of London, in Great Britain, David
Franks, John Inglis, Bernard Gratz, Michael
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Gratz, Alexander Ross, David Sproat, and James Milligan, all of Philadelphia, in
the p\Province of Pennsylvania; Moses Franks, Andrew Hamilton, William
Hamilton, and Edmund Milne of the same place; Joseph Simons otherwise called
Joseph Simon and Levi Andrew Levi of the Town of Lancaster in Pennsylvania;

Thomas Minshall of York County in the same province; Robert Callender and
William Thompson, of Cumberland County in the same province; John Campbell
of Pittsburgh in the same province; and George Castles and James Ramsay of the
Illinois country, and for a good and valuable consideration in the said deed stated
grant, bargain, sell, alien, lease, enfeoff, and confirm to the said William Murray,
Moses Franks, Jacob Franks, David Franks, John Inglis, Bernard Gratz, Michael
Gratz, Alexander Ross, David Sproat, James Milligan, Andrew Hamilton, William
Hamilton, Edmund Milne Joseph Simons, otherwise called Joseph Simon Levi
Andrew Levi, Thomas Minshall, Robert Callender, William Thompson, John
Campbell, George Castles, and James Ramsay, their heirs and assigns forever, in
severalty, or to George the Third, then King of Great Britain and Ireland, his heirs
and successors, for the use, benefit, and behoof of the grantees, their heirs and
assigns, in severalty, by whichever of those tenures they might most legally hold,
all those two several tracts or parcels of land situated, lying, and being within the
limits of Virginia on the east of the Mississippi, northwest of the Ohio, and west of
the Great Miami, and thus butted
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and bounded:
Beginning for one of the said tracts on the east side of the Mississippi at the mouth
of the Heron Creek, called by the French the River of Mary, being about a league
below the mouth of the Kaskaskias River, and running thence a northward of east
course in a direct line back to the Hilly Plains, about eight leagues more or less;
thence the same course in a direct line to the Crab Tree Plains, about seventeen
leagues more or less; thence the same course in a direct line to a remarkable place
known by the name of the Big Buffalo Hoofs, about seventeen leagues more or
less; thence the same course, in a direct line to the Salt Lick Creek, about seven
leagues more or less; then crossing the Salt Lick Creek, about one league below
the ancient Shawanese town in an easterly or a little to the north of east course in a
direct line to the River Ohio, about four leagues more or less; then down the Ohio
by its several courses until it empties into the Mississippi, about thirty-five leagues
more or less; and then up the Mississippi, by its several courses, to the place of
beginning, about thirty-three leagues more or less; and beginning for the other tract
on the Mississippi at a point directly opposite to the mouth of the Missouri and
running up the Mississippi by its several courses to the mouth of the Illinois, about
six leagues more or less; and thence up the Illinois, by its several courses, to
Chicagou or Garlic Creek, about ninety leagues, more or less; thence nearly a
northerly course, in a direct line, to a certain remarkable place, being the ground on
which a
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battle was fought about forty or fifty years before that time between the Pewaria
and Renard Indians, about fifty leagues more or less; thence by the same course in
a direct line to two remarkable hills close together in the middle of a large prairie
or plain, about fourteen leagues more or less; thence a north of east course, in a
direct line, to a remarkable spring known by the Indians by the name of "Foggy
Spring," about fourteen leagues more or less; thence the same course in a direct
line to a great mountain, to the northwest of the White Buffalo Plain, about fifteen
leagues more or less; and thence nearly a southwest course to the place of
beginning, about forty leagues more or less:
To have and to hold the said two tracts of land, with all and singular their
appurtenances, to the grantees, their heirs and assigns, forever in severalty or to the
King, his heirs and successors, to and for the use, benefit, or behoof of the
grantees, their heirs and assigns, forever in severalty, as will more fully appear by
the said deed poll, duly executed under the hands and seals of the grantors and
duly recorded at Kaskaskias on 2 September, 1773, in the office of Vicerault
Lemerance, a notary public, duly appointed and authorized. This deed, with the
several certificates annexed to or endorsed on it, was set out at length in the case.
13th. That the consideration in this deed expressed, was of the value of $24,000
current money of the United States and upwards, and was paid and delivered, at
the time of the execution of the deed, by William Murray, one
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of the grantees, in behalf of himself and the other grantees, to the Illinois Indians,
who freely accepted it and divided it among themselves; that the conferences in
which the sale of these lands was agreed on and made and in which it was agreed
that the deed should be executed were publicly held for the space of a month at the
post of Kaskaskias, and were attended by many individuals of all the tribes of
Illinois Indians, besides the chiefs, named as grantors in the deed; that the whole
transaction was open, public, and fair, and the deed fully explained to the grantors
and other Indians by the sworn interpreters of the government and fully understood
by the grantors and other Indians before it was executed; that the several witnesses
to the deed and the grantees named in it were such persons and of such quality and
stations, respectively, as they are described to be in the deed, the attestation, and
the other endorsements on it; that the grantees did duly authorize William Murray
to act for and represent them in the purchase of the lands and the acceptance of the

deed, and that the two tracts or parcels of land which it describes and purports to
grant were then part of the lands held, possessed, and inhabited by the Illinois
Indians from time immemorial in the manner already stated.

tenures they might most legally hold, all those two several tracts of land in the
deed particularly described situate, lying,
brk:

14th. That all the persons named as grantees in this deed were, at the time of its
execution and long before, subjects of the Crown of Great Britain and residents of
the several places named in the deed as their places of residence, and that
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they entered into the land under and by virtue of the deed and became seized as the
law requires.
15th. That on 18 October, 1775, Tabac and certain other Indians, all being chiefs of
the Piankeshaws and jointly representing, acting for, and duly authorized by that
nation in the manner stated above, did, by their deed poll, duly executed and
bearing date on the day last mentioned at the post of Vincennes, otherwise called
post St. Vincent, then being a British military post, and at a public council there
held by them for and on behalf of the Piankeshaw Indians, with Louis Viviat, of
the Illinois country, acting for himself and for the Right Honorable John, Earl of
Dunmore, then Governor of Virginia, the Honorable John Murray, son of the said
Earl, Moses Franks and Jacob Franks, of London, in Great Britain, Thomas
Johnson, Jr., and John Davidson, both of Annapolis, in Maryland, William Russel,
Matthew Ridley, Robert Christie, Sr., and Robert Christie, Jr., of Baltimore Town,
in the same province, Peter Compbell, of Piscataway in the same province,
William Geddes, of Newtown Chester in the same province, collector of his
Majesty's customs, David Franks and Moses Franks, both of Philadelphia in
Pennsylvania, William Murray and Daniel Murray, of the Illinois country, Nicholas
St. Martin and Joseph Page, of the same place, Francis Perthuis, late of Quebec, in
Canada, but then of post St. Vincent, and for good and valuable consideration, in
the deed poll mentioned and enumerated, grant, bargain, sell, alien, enfeoff,
release, ratify, and
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and being northwest of the Ohio, east of the Mississippi, and west of the Great
Miami, within the limits of Virginia and on both sides of the Ouabache, otherwise
called the Wabash, which two tracts of land are contained respectively within the
following metes and bounds, courses and distances, that is to say, beginning for
one of the said tracts at the mouth of a rivulet called Riviere du Chat, or Cat River,
where it empties itself into the Ouabache or Wabash, by its several courses, to a
place called Point Coupee, about twelve leagues above post St. Vincent, being
forty leagues, or thereabouts, in length, on the said river Ouabache, from the place
of beginning, with forty leagues in width or breadth on the east side, and thirty
leagues in breadth or width on the west side of that river, to be continued along
from the place of beginning to Point Coupee. And beginning for the other tract at
the mouth of White River where it empties into the Ouabache, about twelve
leagues below post St. Vincent, and running thence down the Ouabache by its
several courses until it empties into the Ohio, being from White River to the Ohio,
about fifty-three leagues in length, more or less, with forty
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leagues in width or breadth on the east side and thirty in width or breadth on the
west side of the Ouabache, to be continued along from the White River to the
Ohio, with all the rights, liberties, privileges, hereditaments, and appurtenances to
the said tract belonging, to have and to hold to the grantees, their heirs and assigns,
forever in severalty or to the King, his heirs and successors, for the use, benefit,
and behoof of the grantees, their heirs and assigns, as will more fully appear by the
deed itself, duly executed under the hands and seals of the grantors, and duly
recorded at Kaskaskias, on 5 December, 1775, in the office of Louis Bomer, a
notary public, duly appointed and authorized. This deed, with the several
certificates annexed to or endorsed on it, was set out at length.

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confirm to the said Louis Viviat and the other persons last mentioned, their heirs
and assigns, equally to be divided, or to George III, then King of Great Britain and
Ireland, his heirs and successors, for the use, benefit, and behoof of all the above
mentioned grantees, their heirs and assigns, in severalty, by whichever of those

16th. That the consideration in this deed expressed was of the value of $31,000
current money of the United States and upwards, and was paid and delivered at the
time of the execution of the deed by the grantee, Lewis Viviat, in behalf of himself
and the other grantees, to the Piankeshaw Indians, who freely accepted it and
divided it among themselves; that the conferences in which the sale of these two
tracts of land was agreed on and made, and in which it was agreed that the deed

should be executed were publicly held for the space of a month at the post of
Vincennes or post St. Vincent, and were attended by many individuals of the
Piankeshaw nation of Indians besides the chiefs named as grantors in the deed; that
the whole
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transaction was open, public, and fair, and the deed fully explained to the grantors
and other Indians by skillful interpreters, and fully understood by them before it
was executed; that it was executed in the presence of the several witnesses by
whom it purports to have been attested, and was attested by them; that the grantees
were all subjects of the Crown of Great Britain, and were of such quality, station,
and residence, respectively, as they are described in the deed to be; that the
grantees did duly authorize Lewis Viviat to act for and represent them in the
purchase of these two tracts of land and in the acceptance of the deed; that these
tracts of land were then part of the lands held, possessed, and inhabited by the
Piankeshaw Indians from time immemorial, as is stated above; and that the several
grantees under this deed entered into the land which it purports to grant and
became seized as the law requires.
17th. That on 6 May, 1776, the Colony of Virginia threw off its dependence on the
Crown and government of Great Britain and declared itself an independent state
and government with the limits prescribed and established by the letters patent of
May 23, 1609, as curtailed and restricted by the letters patent establishing the
Colonies of Pennsylvania, Maryland, and Carolina and by the Treaty of February
10, 1763, between Great Britain and France, which limits, so curtailed and
restricted, the State of Virginia, by its Constitution and form of government,
declared should be and remain the limits of the state and should bound its western
and northwestern extent.
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18th. That on 5 October, 1778, the General Assembly of Virginia, having taken by
arms the posts of Kaskaskias and Vincennes, or St. Vincent, from the British
forces, by whom they were then held, and driven those forces from the country
northwest of the Ohio, east of the Mississippi, and west of the Great Miami, did,
by an act of assembly of that date, entitled "An act for establishing the County of
Illinois and for the more effectual protection and defense thereof," erect that
country, with certain other portions of territory within the limits of the state and
northwest of the Ohio into a county, by the name of the County of Illinois.

19th. That on 29 December, 1783, the State of Virginia, by an act of assembly of


that date, authorized their delegates in the Congress of the United States, or such of
them, to the number of three at least, as should be assembled in Congress on behalf
of the state and by proper deeds or instruments in writing under their hands and
seals, to convey, transfer, assign, and make over to the United States, in Congress
assembled, for the benefit of the said states, all right, title, and claim, as well of
soil as jurisdiction, which Virginia had to the territory or tract of country within her
limits, as defined and prescribed by the letters patent of May 23, 1609, and lying to
the northwest of the Ohio; subject to certain limitations and conditions in the act
prescribed and specified, and that on 1 March, 1784, Thomas Jefferson, Samuel
Hardy, Arthur Lee, and James Monroe, then being four of the delegates
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of Virginia to the Congress of the United States, did, by their deed poll, under their
hands and seals, in pursuance and execution of the authority to them given by this
act of assembly, convey, transfer, assign, and make over to the United States, in
Congress assembled, for the benefit of the said states, all right, title, and claim, as
well of soil as jurisdiction which that state had to the territory northwest of the
Ohio, with the reservations, limitations, and conditions in the act of assembly
prescribed, which cession the United States accepted.
20th. That on 20 July, 1818, the United States, by their officers duly authorized for
that purpose did sell, grant, and convey to the defendant in this action, William
McIntosh, all those several tracts or parcels of land, containing 11,560 acres, and
butted, bounded, and described, as will fully appear in and by the patent for the
said lands, duly executed, which was set out at length.
21st. That the lands described and granted in and by this patent are situated within
the State of Illinois and are contained within the lines of the last or second of the
two tracts described and purporting to be granted and conveyed to Louis Viviat and
others by the deed of October 18, 1775, and that William McIntosh, the defendant,
entered upon these lands under and by virtue of his patent and became possessed
thereof before the institution of this suit.
22d. That Thomas Johnson, one of the grantees
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in and under the deed of October 18, 1775, departed this life on or about 1
October, 1819, seized of all his undivided part or share of and in the two several
tracts of land described and purporting to be granted and conveyed to him and
others by that deed, having first duly made and published his last will and
testament in writing, attested by three credible witnesses, which he left in full force
and by which he devised all his undivided share and part of those two tracts of land
to his son, Joshua Johnson and his heirs, and his grandson, Thomas J. Graham, and
his heirs, the lessors of the plaintiff in this action, as tenants in common.
23d. That Joshua Johnson and Thomas J. Graham, the devisees, entered into the
two tracts of land last above mentioned under and by virtue of the will, and
became thereof seized as the law requires. That Thomas Johnson, the grantee and
devisor, during his whole life and at the time of his death, was an inhabitant and
citizen of the State of Maryland; that Joshua Johnson and Thomas J. Graham, the
lessors of the plaintiff, now are and always have been citizens of the same state;
that the defendant, William McIntosh, now is and at and before the time of
bringing this action was a citizen of the State of Illinois, and that the matter in
dispute in this action is of the value of $2,000 current money of the United States
and upwards.
24th. And that neither William Murray nor any other of the grantees under the deed
of July 5, 1773, nor Louis Viviat nor any other of the
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grantees under the deed of October 8, 1775, nor any person for them or any of
them ever obtained or had the actual possession under and by virtue of those deeds
or either of them of any part of the lands in them or either of them described and
purporting to be granted, but were prevented by the war of the American
Revolution, which soon after commenced, and by the disputes and troubles which
preceded it, from obtaining such possession, and that since the termination of the
war and before it, they have repeatedly and at various times from the year 1781 till
the year 1816 petitioned the Congress of the United States to acknowledge and
confirm their title to those lands under the purchases and deeds in question, but
without success.
Judgment being given for the defendant on the case stated, the plaintiffs brought
this writ of error.
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MR. CHIEF JUSTICE MARSHALL delivered the opinion of the Court.


The plaintiffs in this cause claim the land in their declaration mentioned under two
grants purporting to be made, the first in 1773 and the last in 1775, by the chiefs of
certain
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Page 21 U. S. 572
Indian tribes constituting the Illinois and the Piankeshaw nations, and the question
is whether this title can be recognized in the courts of the United States?
The facts, as stated in the case agreed, show the authority of the chiefs who
executed this conveyance so far as it could be given by their own people, and
likewise show that the particular tribes for whom these chiefs acted were in
rightful possession of the land they sold. The inquiry, therefore, is in a great
measure confined to the power of Indians to give, and of private individuals to
receive, a title which can be sustained in the courts of this country.
As the right of society to prescribe those rules by which property may be acquired
and preserved is not and cannot be drawn into question, as the title to lands
especially is and must be admitted to depend entirely on the law of the nation in
which they lie, it will be necessary in pursuing this inquiry to examine not singly
those principles of abstract justice which the Creator of all things has impressed on
the mind of his creature man and which are admitted to regulate in a great degree
the rights of civilized nations, whose perfect independence is acknowledged, but
those principles also which our own government has adopted in the particular case
and given us as the rule for our decision.
On the discovery of this immense continent, the great nations of Europe were
eager to appropriate to themselves so much of it as they could respectively acquire.
Its vast extent offered an
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Page 21 U. S. 573
ample field to the ambition and enterprise of all, and the character and religion of
its inhabitants afforded an apology for considering them as a people over whom
the superior genius of Europe might claim an ascendency. The potentates of the old
world found no difficulty in convincing themselves that they made ample
compensation to the inhabitants of the new by bestowing on them civilization and
Christianity in exchange for unlimited independence. But as they were all in

pursuit of nearly the same object, it was necessary, in order to avoid conflicting
settlements and consequent war with each other, to establish a principle which all
should acknowledge as the law by which the right of acquisition, which they all
asserted should be regulated as between themselves. This principle was that
discovery gave title to the government by whose subjects or by whose authority it
was made against all other European governments, which title might be
consummated by possession.

all show that she placed in on the rights given by discovery. Portugal sustained her
claim to the Brazils by the same title.

The exclusion of all other Europeans necessarily gave to the nation making the
discovery the sole right of acquiring the soil from the natives and establishing
settlements upon it. It was a right with which no Europeans could interfere. It was
a right which all asserted for themselves, and to the assertion of which by others all
assented.

conciliatory her conduct to the natives may have been, she still asserted her right
of dominion over a great extent of country not actually settled by Frenchmen and
her exclusive right to acquire and dispose of the soil which remained in the
occupation of Indians. Her monarch claimed all Canada and Acadie as colonies of
France at a time when the French population was very inconsiderable and the
Indians occupied almost the whole country. He also claimed Louisiana,
comprehending the immense territories watered by the Mississippi and the rivers
which empty into it, by the title of discovery. The letters patent granted to the Sieur
Demonts in 1603, constitute him Lieutenant General, and the representative of the
King in Acadie, which is described as stretching from the 40th to the 46th degree
of north latitude, with authority to extend the power of the French over that
country and its inhabitants, to give laws to the people, to treat with the natives and
enforce the observance of treaties, and to parcel out and give title to lands
according to his own judgment.

Those relations which were to exist between the discoverer and the natives were to
be regulated by themselves. The rights thus acquired being exclusive, no other
power could interpose between them.
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Page 21 U. S. 574
In the establishment of these relations, the rights of the original inhabitants were in
no instance entirely disregarded, but were necessarily to a considerable extent
impaired. They were admitted to be the rightful occupants of the soil, with a legal
as well as just claim to retain possession of it, and to use it according to their own
discretion; but their rights to complete sovereignty as independent nations were
necessarily diminished, and their power to dispose of the soil at their own will to
whomsoever they pleased was denied by the original fundamental principle that
discovery gave exclusive title to those who made it.

France also founded her title to the vast territories she claimed in America on
discovery. However
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Page 21 U. S. 575

The states of Holland also made acquisitions in America and sustained their right
on the common principle adopted by all Europe. They allege, as we are told by
Smith in his History of New York, that Henry Hudson, who sailed, as they say,
under the orders of their East India Company, discovered the country from the
Delaware to the Hudson, up which he sailed to the 43d degree of north latitude,
and this country they claimed under the title acquired by this voyage.
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While the different nations of Europe respected the right of the natives as
occupants, they asserted the ultimate dominion to be in themselves, and claimed
and exercised, as a consequence of this ultimate dominion, a power to grant the
soil while yet in possession of the natives. These grants have been understood by
all to convey a title to the grantees, subject only to the Indian right of occupancy.
The history of America from its discovery to the present day proves, we think, the
universal recognition of these principles.
Spain did not rest her title solely on the grant of the Pope. Her discussions
respecting boundary, with France, with Great Britain, and with the United States

Page 21 U. S. 576
Their first object was commercial, as appears by a grant made to a company of
merchants in 1614, but in 1621 the States General made, as we are told by Mr.
Smith, a grant of the country to the West India Company by the name of New
Netherlands.
The claim of the Dutch was always contested by the English -- not because they
questioned the title given by discovery, but because they insisted on being

themselves the rightful claimants under that title. Their pretensions were finally
decided by the sword.
No one of the powers of Europe gave its full assent to this principle more
unequivocally than England. The documents upon this subject are ample and
complete. So early as the year 1496, her monarch granted a commission to the
Cabots to discover countries then unknown to Christian people and to take
possession of them in the name of the King of England. Two years afterwards,
Cabot proceeded on this voyage and discovered the continent of North America,
along which he sailed as far south as Virginia. To this discovery the English trace
their title.
In this first effort made by the English government to acquire territory on this
continent we perceive a complete recognition of the principle which has been
mentioned. The right of discovery given by this commission is confined to
countries "then unknown to all Christian people," and of these countries Cabot was
empowered to take possession in the name of the King of England. Thus asserting
a right to take possession
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In 1609, after some expensive and not very successful attempts at settlement had
been made, a new and more enlarged charter was given by the Crown to the first
colony, in which the King granted to the "Treasurer and Company of Adventurers
of the City of London for the first colony in Virginia," in absolute property, the
lands extending along the seacoast four hundred miles, and
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Page 21 U. S. 578
into the land throughout from sea to sea. This charter, which is a part of the special
verdict in this cause, was annulled, so far as respected the rights of the company,
by the judgment of the Court of King's Bench on a writ ofquo warranto, but the
whole effect allowed to this judgment was to revest in the Crown the powers of
government and the title to the lands within its limits.
At the solicitation of those who held under the grant to the second or northern
colony, a new and more enlarged charter was granted to the Duke of Lenox and
others in 1620, who were denominated the Plymouth Company, conveying to them
in absolute property all the lands between the 40th and 48th degrees of north
latitude.

Page 21 U. S. 577
notwithstanding the occupancy of the natives, who were heathens, and at the same
time admitting the prior title of any Christian people who may have made a
previous discovery.
The same principle continued to be recognized. The charter granted to Sir
Humphrey Gilbert in 1578 authorizes him to discover and take possession of such
remote, heathen, and barbarous lands as were not actually possessed by any
Christian prince or people. This charter was afterwards renewed to Sir Walter
Raleigh in nearly the same terms.
By the charter of 1606, under which the first permanent English settlement on this
continent was made, James I granted to Sir Thomas Gates and others those
territories in America lying on the seacoast between the 34th and 45th degrees of
north latitude and which either belonged to that monarch or were not then
possessed by any other Christian prince or people. The grantees were divided into
two companies at their own request. The first or southern colony was directed to
settle between the 34th and 41st degrees of north latitude, and the second or
northern colony between the 38th and 45th degrees.

Under this patent New England has been in a great measure settled. The company
conveyed to Henry Rosewell and others, in 1627, that territory which is now
Massachusetts, and in 1628 a charter of incorporation comprehending the powers
of government was granted to the purchasers.
Great part of New England was granted by this company, which at length divided
their remaining lands among themselves, and in 1635 surrendered their charter to
the Crown. A patent was granted to Gorges for Maine, which was allotted to him in
the division of property.
All the grants made by the Plymouth Company, so far as we can learn, have been
respected. In pursuance of the same principle, the King, in 1664, granted to the
Duke of York the country of New England as far south as the Delaware
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Page 21 U. S. 579
Bay. His Royal Highness transferred New Jersey to Lord Berkeley and Sir George
Carteret.

In 1663, the Crown granted to Lord Clarendon and others the country lying
between the 36th degree of north latitude and the River St. Mathes, and in 1666 the
proprietors obtained from the Crown a new charter granting to them that province
in the King's dominions in North America which lies from 36 degrees 30 minutes
north latitude to the 29th degree, and from the Atlantic ocean to the South sea.

a revolution was effected by the people, who shook off their obedience to the
proprietors and declared their dependence immediately on the Crown. The King,
however, purchased the title of those who were disposed to sell. One of them, Lord
Carteret, surrendered his interest in the government but retained his title to the soil.
That

Thus has our whole country been granted by the Crown while in the occupation of
the Indians. These grants purport to convey the soil as well as the right of
dominion to the grantees. In those governments which were denominated royal,
where the right to the soil was not vested in individuals, but remained in the Crown
or was vested in the colonial government, the King claimed and exercised the right
of granting lands and of dismembering the government at his will. The grants
made out of the two original colonies, after the resumption of their charters by the
Crown, are examples of this. The governments of New England, New York, New
Jersey, Pennsylvania, Maryland, and a part of Carolina were thus created. In all of
them, the soil, at the time the grants were made, was occupied by the Indians. Yet
almost every title within those governments is dependent on these grants. In some
instances, the soil was conveyed by the Crown unaccompanied by the powers of
government, as in the case of the northern neck of Virginia. It has never

Page 21 U. S. 581

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title was respected till the revolution, when it was forfeited by the laws of war.
Further proofs of the extent to which this principle has been recognized will be
found in the history of the wars, negotiations, and treaties which the different
nations claiming territory in America have carried on and held with each other.
The contests between the cabinets of Versailles and Madrid respecting the territory
on the northern coast of the Gulf of Mexico were fierce and bloody, and continued
until the establishment of a Bourbon on the throne of Spain produced such
amicable dispositions in the two Crowns as to suspend or terminate them.

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Page 21 U. S. 580
been objected to this or to any other similar grant that the title as well as
possession was in the Indians when it was made and that it passed nothing on that
account.
These various patents cannot be considered as nullities, nor can they be limited to a
mere grant of the powers of government. A charter intended to convey political
power only would never contain words expressly granting the land, the soil, and
the waters. Some of them purport to convey the soil alone, and in those cases in
which the powers of government as well as the soil are conveyed to individuals,
the Crown has always acknowledged itself to be bound by the grant. Though the
power to dismember regal governments was asserted and exercised, the power to
dismember proprietary governments was not claimed, and in some instances, even
after the powers of government were revested in the Crown, the title of the
proprietors to the soil was respected.
Charles II was extremely anxious to acquire the property of Maine, but the
grantees sold it to Massachusetts, and he did not venture to contest the right of that
colony to the soil. The Carolinas were originally proprietary governments. In 1721,

Between France and Great Britain, whose discoveries as well as settlements were
nearly contemporaneous, contests for the country actually covered by the Indians
began as soon as their settlements approached each other, and were continued until
finally settled in the year 1763 by the Treaty of Paris.
Each nation had granted and partially settled the country, denominated by the
French Acadie, and by the English Nova Scotia. By the 12th article of the Treaty of
Utrecht, made in 1703, his most Christian Majesty ceded to the Queen of Great
Britain "all Nova Scotia or Acadie, with its ancient boundaries." A great part of the
ceded territory was in the possession of the Indians, and the extent of the cession
could not be adjusted by the commissioners to whom it was to be referred.
The Treaty of Aix la Chapelle, which was made

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Page 21 U. S. 582
on the principle of the status ante bellum, did not remove this subject of
controversy. Commissioners for its adjustment were appointed whose very able
and elaborate, though unsuccessful, arguments in favor of the title of their
respective sovereigns show how entirely each relied on the title given by discovery
to lands remaining in the possession of Indians.

After the termination of this fruitless discussion, the subject was transferred to
Europe and taken up by the cabinets of Versailles and London. This controversy
embraced not only the boundaries of New England, Nova Scotia, and that part of
Canada which adjoined those colonies, but embraced our whole western country
also. France contended not only that the St. Lawrence was to be considered as the
center of Canada, but that the Ohio was within that colony. She founded this claim
on discovery and on having used that river for the transportation of troops in a war
with some southern Indians.
This river was comprehended in the chartered limits of Virginia, but though the
right of England to a reasonable extent of country in virtue of her discovery of the
seacoast and of the settlements she made on it, was not to be questioned, her claim
of all the lands to the Pacific Ocean because she had discovered the country
washed by the Atlantic, might, without derogating from the principle recognized
by all, be deemed extravagant. It interfered, too, with the claims of France founded
on the same principle. She therefore sought to strengthen her original title to
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Page 21 U. S. 583
the lands in controversy by insisting that it had been acknowledged by France in
the 15th article of the Treaty of Utrecht. The dispute respecting the construction of
that article has no tendency to impair the principle, that discovery gave a title to
lands still remaining in the possession of the Indians. Whichever title prevailed, it
was still a title to lands occupied by the Indians, whose right of occupancy neither
controverted and neither had then extinguished.

Page 21 U. S. 584
and treated as an invasion of the territories of France.
By the 20th article of the same treaty, Spain ceded Florida, with its dependencies
and all the country she claimed east or southeast of the Mississippi, to Great
Britain. Great part of this territory also was in possession of the Indians.
By a secret treaty which was executed about the same time, France ceded
Louisiana to Spain, and Spain has since retroceded the same country to France. At
the time both of its cession and retrocession, it was occupied chiefly by the
Indians.
Thus all the nations of Europe who have acquired territory on this continent have
asserted in themselves and have recognized in others the exclusive right of the
discoverer to appropriate the lands occupied by the Indians. Have the American
states rejected or adopted this principle?
By the treaty which concluded the war of our revolution, Great Britain
relinquished all claim not only to the government, but to the "propriety and
territorial rights of the United States" whose boundaries were fixed in the second
article. By this treaty the powers of government and the right to soil which had
previously been in Great Britain passed definitively to these states. We had before
taken possession of them by declaring independence, but neither the declaration of
independence nor the treaty confirming it could give us more than that which we
before possessed or to which Great Britain was before entitled. It
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These conflicting claims produced a long and bloody war which was terminated by
the conquest of the whole country east of the Mississippi. In the treaty of 1763,
France ceded and guaranteed to Great Britain all Nova Scotia, or Acadie, and
Canada, with their dependencies, and it was agreed that the boundaries between
the territories of the two nations in America should be irrevocably fixed by a line
drawn from the source of the Mississippi, through the middle of that river and the
lakes Maurepas and Ponchartrain, to the sea. This treaty expressly cedes, and has
always been understood to cede, the whole country on the English side of the
dividing line between the two nations, although a great and valuable part of it was
occupied by the Indians. Great Britain, on her part, surrendered to France all her
pretensions to the country west of the Mississippi. It has never been supposed that
she surrendered nothing, although she was not in actual possession of a foot of
land. She surrendered all right to acquired the country, and any after attempt to
purchase it from the Indians would have been considered
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Page 21 U. S. 585
has never been doubted that either the United States or the several states had a
clear title to all the lands within the boundary lines described in the treaty, subject
only to the Indian right of occupancy, and that the exclusive power to extinguish
that right was vested in that government which might constitutionally exercise it.
Virginia, particularly, within whose chartered limits the land in controversy lay,
passed an act in the year 1779 declaring her
"exclusive right of preemption from the Indians of all the lands within the limits of
her own chartered territory, and that no person or persons whatsoever have or ever
had a right to purchase any lands within the same from any Indian nation except

only persons duly authorized to make such purchase, formerly for the use and
benefit of the colony and lately for the Commonwealth."

The ceded territory was occupied by numerous and warlike tribes of Indians, but
the exclusive right of the United States to extinguish their title and to grant the soil
has never, we believe, been doubted.
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The act then proceeds to annul all deeds made by Indians to individuals for the
private use of the purchasers.
Without ascribing to this act the power of annulling vested rights or admitting it to
countervail the testimony furnished by the marginal note opposite to the title of the
law forbidding purchases from the Indians in the revisals of the Virginia statutes
stating that law to be repealed, it may safely be considered as an unequivocal
affirmance on the part of Virginia of the broad principle which had always been
maintained that the exclusive right to purchase from the Indians resided in the
government.
In pursuance of the same idea, Virginia proceeded at the same session to open
her

Page 21 U. S. 587
After these states became independent, a controversy subsisted between them and
Spain respecting boundary. By the treaty of 1795, this controversy was adjusted
and Spain ceded to the United States the territory in question. This territory, though
claimed by both nations, was chiefly in the actual occupation of Indians.
The magnificent purchase of Louisiana was the purchase from France of a country
almost entirely occupied by numerous tribes of Indians who are in fact
independent. Yet any attempt of others to intrude into that country would be
considered as an aggression which would justify war.

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Page 21 U. S. 586
land office for the sale of that country which now constitutes Kentucky, a country
every acre of which was then claimed and possessed by Indians, who maintained
their title with as much persevering courage as was ever manifested by any people.
The states, having within their chartered limits different portions of territory
covered by Indians, ceded that territory generally to the United States on
conditions expressed in their deeds of cession, which demonstrate the opinion that
they ceded the soil as well as jurisdiction, and that in doing so they granted a
productive fund to the government of the Union. The lands in controversy lay
within the chartered limits of Virginia, and were ceded with the whole country
northwest of the River Ohio. This grant contained reservations and stipulations
which could only be made by the owners of the soil, and concluded with a
stipulation that

Our late acquisitions from Spain are of the same character, and the negotiations
which preceded those acquisitions recognize and elucidate the principle which has
been received as the foundation of all European title in America.
The United States, then, has unequivocally acceded to that great and broad rule by
which its civilized inhabitants now hold this country. They hold and assert in
themselves the title by which it was acquired. They maintain, as all others have
maintained, that discovery gave an exclusive right to extinguish the Indian title of
occupancy either by purchase or by conquest, and gave also a right to such a
degree of sovereignty as the circumstances of the people would allow them to
exercise.
The power now possessed by the government of the United States to grant lands,
resided, while we were colonies, in the Crown, or its grantees. The validity of the
titles given by either has never
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Page 21 U. S. 588
"all the lands in the ceded territory not reserved should be considered as a common
fund for the use and benefit of such of the United States as have become or shall
become members of the confederation, . . . according to their usual respective
proportions in the general charge and expenditure, and shall be faithfully and bona
fide disposed of for that purpose, and for no other use or purpose whatsoever."

been questioned in our courts. It has been exercised uniformly over territory in
possession of the Indians. The existence of this power must negative the existence
of any right which may conflict with and control it. An absolute title to lands
cannot exist at the same time in different persons or in different governments. An
absolute must be an exclusive title, or at least a title which excludes all others not
compatible with it. All our institutions recognize the absolute title of the Crown,

subject only to the Indian right of occupancy, and recognize the absolute title of the
Crown to extinguish that right. This is incompatible with an absolute and complete
title in the Indians.

When the conquest is complete and the conquered inhabitants can be blended with
the conquerors
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Page 21 U. S. 590
We will not enter into the controversy whether agriculturists, merchants, and
manufacturers have a right on abstract principles to expel hunters from the territory
they possess or to contract their limits. Conquest gives a title which the courts of
the conqueror cannot deny, whatever the private and speculative opinions of
individuals may be, respecting the original justice of the claim which has been
successfully asserted. The British government, which was then our government
and whose rights have passed to the United States, asserted title to all the lands
occupied by Indians within the chartered limits of the British colonies. It asserted
also a limited sovereignty over them and the exclusive right of extinguishing the
title which occupancy gave to them. These claims have been maintained and
established as far west as the River Mississippi by the sword. The title
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Page 21 U. S. 589
to a vast portion of the lands we now hold originates in them. It is not for the
courts of this country to question the validity of this title or to sustain one which is
incompatible with it.
Although we do not mean to engage in the defense of those principles which
Europeans have applied to Indian title, they may, we think, find some excuse, if
not justification, in the character and habits of the people whose rights have been
wrested from them.
The title by conquest is acquired and maintained by force. The conqueror
prescribes its limits. Humanity, however, acting on public opinion, has established,
as a general rule, that the conquered shall not be wantonly oppressed, and that their
condition shall remain as eligible as is compatible with the objects of the conquest.
Most usually, they are incorporated with the victorious nation, and become
subjects or citizens of the government with which they are connected. The new and
old members of the society mingle with each other; the distinction between them is
gradually lost, and they make one people. Where this incorporation is practicable,
humanity demands and a wise policy requires that the rights of the conquered to
property should remain unimpaired; that the new subjects should be governed as
equitably as the old, and that confidence in their security should gradually banish
the painful sense of being separated from their ancient connections, and united by
force to strangers.

or safely governed as a distinct people, public opinion, which not even the
conqueror can disregard, imposes these restraints upon him, and he cannot neglect
them without injury to his fame and hazard to his power.
But the tribes of Indians inhabiting this country were fierce savages whose
occupation was war and whose subsistence was drawn chiefly from the forest. To
leave them in possession of their country was to leave the country a wilderness; to
govern them as a distinct people was impossible because they were as brave and as
high spirited as they were fierce, and were ready to repel by arms every attempt on
their independence.
What was the inevitable consequence of this state of things? The Europeans were
under the necessity either of abandoning the country and relinquishing their
pompous claims to it or of enforcing those claims by the sword, and by the
adoption of principles adapted to the condition of a people with whom it was
impossible to mix and who could not be governed as a distinct society, or of
remaining in their neighborhood, and exposing themselves and their families to the
perpetual hazard of being massacred.
Frequent and bloody wars, in which the whites were not always the aggressors,
unavoidably ensued. European policy, numbers, and skill prevailed. As the white
population advanced, that of the Indians necessarily receded. The country in the
immediate neighborhood of agriculturists became unfit for them. The game fled

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Page 21 U. S. 591
into thicker and more unbroken forests, and the Indians followed. The soil to
which the Crown originally claimed title, being no longer occupied by its ancient
inhabitants, was parceled out according to the will of the sovereign power and
taken possession of by persons who claimed immediately from the Crown or
mediately through its grantees or deputies.
That law which regulates and ought to regulate in general the relations between the
conqueror and conquered was incapable of application to a people under such
circumstances. The resort to some new and different rule better adapted to the

actual state of things was unavoidable. Every rule which can be suggested will be
found to be attended with great difficulty.

Another view has been taken of this question

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Page 21 U. S. 593
However extravagant the pretension of converting the discovery of an inhabited
country into conquest may appear; if the principle has been asserted in the first
instance, and afterwards sustained; if a country has been acquired and held under
it; if the property of the great mass of the community originates in it, it becomes
the law of the land and cannot be questioned. So, too, with respect to the
concomitant principle that the Indian inhabitants are to be considered merely as
occupants, to be protected, indeed, while in peace, in the possession of their lands,
but to be deemed incapable of transferring the absolute title to others. However
this restriction may be opposed to natural right, and to the usages of civilized
nations, yet if it be indispensable to that system under which the country has been
settled, and be
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Page 21 U. S. 592
adapted to the actual condition of the two people, it may perhaps be supported by
reason, and certainly cannot be rejected by courts of justice.
This question is not entirely new in this Court. The case of Fletcher v. Peck grew
out of a sale made by the State of Georgia of a large tract of country within the
limits of that state, the grant of which was afterwards resumed. The action was
brought by a subpurchaser on the contract of sale, and one of the covenants in the
deed was that the State of Georgia was, at the time of sale, seized in fee of the
premises. The real question presented by the issue was whether the seizin in fee
was in the State of Georgia or in the United States. After stating that this
controversy between the several states and the United States had been
compromised, the court thought in necessary to notice the Indian title, which,
although entitled to the respect of all courts until it should be legitimately
extinguished, was declared not to be such as to be absolutely repugnant to a seizin
in fee on the part of the state.
This opinion conforms precisely to the principle which has been supposed to be
recognized by all European governments from the first settlement of America. The
absolute ultimate title has been considered as acquired by discovery, subject only
to the Indian title of occupancy, which title the discoverers possessed the exclusive
right of acquiring. Such a right is no more incompatible with a seizin in fee than a
lease for years, and might as effectually bar an ejectment.

which deserves to be considered. The title of the Crown, whatever it might be,
could be acquired only by a conveyance from the Crown. If an individual might
extinguish the Indian title for his own benefit, or in other words might purchase it,
still he could acquire only that title. Admitting their power to change their laws or
usages so far as to allow an individual to separate a portion of their lands from the
common stock and hold it in severalty, still it is a part of their territory and is held
under them by a title dependent on their laws. The grant derives its efficacy from
their will, and if they choose to resume it and make a different disposition of the
land, the courts of the United States cannot interpose for the protection of the title.
The person who purchases lands from the Indians within their territory
incorporates himself with them so far as respects the property purchased; holds
their title under their protection and subject to their laws. If they annul the grant,
we know of no tribunal which can revise and set aside the proceeding. We know of
no principle which can distinguish this case from a grant made to a native Indian,
authorizing him to hold a particular tract of land in severalty.
As such a grant could not separate the Indian from his nation, nor give a title which
our courts could distinguish from the title of his tribe, as it might still be conquered
from, or ceded by his tribe, we can perceive no legal principle which will authorize
a court to say that different consequences are attached to this purchase because it
was made by a stranger. By the treaties concluded
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Page 21 U. S. 594
between the United States and the Indian nations whose title the plaintiffs claim,
the country comprehending the lands in controversy has been ceded to the United
States without any reservation of their title. These nations had been at war with the
United States, and had an unquestionable right to annul any grant they had made to
American citizens. Their cession of the country without a reservation of this land
affords a fair presumption that they considered it as of no validity. They ceded to
the United States this very property, after having used it in common with other
lands as their own, from the date of their deeds to the time of cession, and the
attempt now made, is to set up their title against that of the United States.

The proclamation issued by the King of Great Britain in 1763 has been considered,
and we think with reason, as constituting an additional objection to the title of the
plaintiffs.
By that proclamation, the Crown reserved under its own dominion and protection,
for the use of the Indians, "all the land and territories lying to the westward of the
sources of the rivers which fall into the sea from the west and northwest," and
strictly forbade all British subjects from making any purchases or settlements
whatever or taking possession of the reserved lands.
It has been contended that in this proclamation, the King transcended his
constitutional powers, and the case ofCampbell v. Hall, reported by Cowper, is
relied on to support this position.
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Page 21 U. S. 595
It is supposed to be a principle of universal law that if an uninhabited country be
discovered by a number of individuals who acknowledge no connection with and
owe no allegiance to any government whatever, the country becomes the property
of the discoverers, so far at least as they can use it. They acquire a title in common.
The title of the whole land is in the whole society. It is to be divided and parceled
out according to the will of the society, expressed by the whole body or by that
organ which is authorized by the whole to express it.

Page 21 U. S. 596
impairing its right to grant lands within the chartered limits of such colony. In
addition to the proof of this principle, furnished by the immense grants already
mentioned of lands lying within the chartered limits of Virginia, the continuing
right of the Crown to grant lands lying within that colony was always admitted. A
title might be obtained either by making an entry with the surveyor of a county in
pursuance of law or by an order of the governor in council, who was the deputy of
the King, or by an immediate grant from the Crown. In Virginia, therefore, as well
as elsewhere in the British dominions, the complete title of the Crown to vacant
lands was acknowledged.
So far as respected the authority of the Crown, no distinction was taken between
vacant lands and lands occupied by the Indians. The title, subject only to the right
of occupancy by the Indians, was admitted to be in the King, as was his right to
grant that title. The lands, then, to which this proclamation referred were lands
which the King had a right to grant, or to reserve for the Indians.
According to the theory of the British Constitution, the royal prerogative is very
extensive so far as respects the political relations between Great Britain and
foreign nations. The peculiar situation of the Indians, necessarily considered in
some respects as a dependent and in some respects as a distinct people occupying a
country claimed by Great Britain, and yet too powerful and brave not to be
dreaded as formidable enemies, required that means should be adopted for
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If the discovery be made and possession of the country be taken under the
authority of an existing government, which is acknowledged by the emigrants, it is
supposed to be equally well settled, that the discovery is made for the whole
nation, that the country becomes a part of the nation, and that the vacant soil is to
be disposed of by that organ of the government which has the constitutional power
to dispose of the national domains, by that organ in which all vacant territory is
vested by law.
According to the theory of the British Constitution, all vacant lands are vested in
the Crown, as representing the nation, and the exclusive power to grant them is
admitted to reside in the Crown as a branch of the royal prerogative. It has been
already shown that this principle was as fully recognized in America as in the
Island of Great Britain. All the lands we hold were originally granted by the
Crown, and the establishment of a regal government has never been considered
as
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Page 21 U. S. 597
the preservation of peace, and that their friendship should be secured by quieting
their alarms for their property. This was to be effected by restraining the
encroachments of the whites, and the power to do this was never, we believe,
denied by the colonies to the Crown.
In the case of Campbell v. Hall, that part of the proclamation was determined to be
illegal, which imposed a tax on a conquered province, after a government had been
bestowed upon it. The correctness of this decision cannot be questioned, but its
application to the case at bar cannot be admitted. Since the expulsion of the Stuart
family, the power of imposing taxes by proclamation has never been claimed as a
branch of regal prerogative, but the powers of granting, or refusing to grant, vacant
lands, and of restraining encroachments on the Indians have always been asserted
and admitted.

The authority of this proclamation, so far as it respected this continent, has never
been denied, and the titles it gave to lands have always been sustained in our
courts.
In the argument of this cause, the counsel for the plaintiffs have relied very much
on the opinions expressed by men holding offices of trust, and on various
proceedings in America to sustain titles to land derived from the Indians.
The collection of claims to lands lying in the western country made in the 1st
volume of the Laws of the United States has been referred to, but we find nothing
in that collection to support the argument. Most of the titles were derived
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Page 21 U. S. 598
from persons professing to act under the authority of the government existing at
the time, and the two grants under which the plaintiffs claim are supposed by the
person under whose inspection the collection was made to be void, because
forbidden by the royal proclamation of 1763. It is not unworthy of remark that the
usual mode adopted by the Indians for granting lands to individuals has been to
reserve them in a treaty or to grant them under the sanction of the commissioners
with whom the treaty was negotiated. The practice in such case to grant to the
Crown for the use of the individual is some evidence of a general understanding
that the validity even of such a grant depended on its receiving the royal sanction.
The controversy between the Colony of Connecticut and the Mohegan Indians
depended on the nature and extent of a grant made by those Indians to the colony;
on the nature and extent of the reservations made by the Indians, in their several
deeds and treaties, which were alleged to be recognized by the legitimate authority;
and on the violation by the colony of rights thus reserved and secured. We do not
perceive in that case any assertion of the principle that individuals might obtain a
complete and valid title from the Indians.
It has been stated that in the memorial transmitted from the Cabinet of London to
that of Versailles, during the controversy between the two nations respecting
boundary which took place in 1755, the Indian right to the soil is recognized.
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for the purpose of sustaining the claim of His Britannic Majesty to dominion over
them.
The opinion of the Attorney and Solicitor General, Pratt and Yorke, have been
adduced to prove that in the opinion of those great law officers, the Indian grant
could convey a title to the soil without a patent emanating from the Crown. The
opinion of those persons would certainly be of great authority on such a question,
and we were not a little surprised when it was read, at the doctrine it seemed to
advance. An opinion so contrary to the whole practice of the Crown and to the
uniform opinions given on all other occasions by its great law officers ought to be
very explicit and accompanied by the circumstances under which it was given, and
to which it was applied before we can be assured that it is properly understood. In
a pamphlet written for the purpose of asserting the Indian title, styled "Plain
Facts," the same opinion is quoted, and is said to relate to purchases made in the
East Indies. It is, of course, entirely inapplicable to purchases made in America.
Chalmers, in whose collection this opinion is found, does not say to whom it
applies, but there is reason to believe that the author of Plain Facts is, in this
respect, correct. The opinion commences thus:
"In respect to such places as have been or shall be acquired by treaty or grant from
any of the Indian princes or governments,
Page 21 U. S. 600
your Majesty's letters patent are not necessary."
The words "princes or governments" are usually applied to the East Indians, but
not to those of North America. We speak of their sachems, their warriors, their
chiefmen, their nations or tribes, not of their "princes or governments." The
question on which the opinion was given, too, and to which it relates, was whether
the King's subjects carry with them the common law wherever they may form
settlements. The opinion is given with a view to this point, and its object must be
kept in mind while construing its expressions.
Much reliance is also placed on the fact, that many tracts are now held in the
United States under the Indian title, the validity of which is not questioned.

Page 21 U. S. 599
But this recognition was made with reference to their character as Indians and for
the purpose of showing that they were fixed to a particular territory. It was made

Before the importance attached to this fact is conceded, the circumstances under
which such grants were obtained, and such titles are supported, ought to be
considered. These lands lie chiefly in the eastern states. It is known that the

Plymouth Company made many extensive grants which, from their ignorance of
the country, interfered with each other. It is also known that Mason to whom New
Hampshire, and Gorges, to whom Maine was granted, found great difficulty in
managing such unwieldy property. The country was settled by emigrants, some
from Europe, but chiefly from Massachusetts, who took possession of lands they
found unoccupied, and secured themselves in that possession by the best means in
their power. The disturbances in
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"Thomas Chifflinch and others, having, in the right of Major Asperton, a just
propriety in the Narraghanset Country, in New England, by grants from the native
princes of that country, and being desirous to improve it into an English colony, . . .
are yet daily disturbed."
The impression this language might make, if viewed apart from the circumstances
under which it was employed, will be effaced, when considered in connection with
those circumstances.

Page 21 U. S. 601
England, and the civil war and revolution which followed those disturbances,
prevented any interference on the part of the mother country, and the proprietors
were unable to maintain their title. In the meantime, Massachusetts claimed the
country and governed it. As her claim was adversary to that of the proprietors, she
encouraged the settlement of persons made under her authority, and encouraged
likewise their securing themselves in possession, by purchasing the acquiescence
and forbearance of the Indians. After the restoration of Charles II, Gorges and
Mason, when they attempted to establish their title, found themselves opposed by
men who held under Massachusetts and under the Indians. The title of the
proprietors was resisted, and though in some cases compromises were made and in
some, the opinion of a court was given ultimately in their favor, the juries found
uniformly against them. They became wearied with the struggle, and sold their
property. The titles held under the Indians were sanctioned by length of possession,
but there is no case, so far as we are informed, of a judicial decision in their favor.

In the year 1635, the Plymouth Company surrendered their charter to the Crown.
About the same time, the religious dissentions of Massachusetts expelled from that
colony several societies of individuals, one of which settled in Rhode Island, on
lands purchased from the Indians. They were not within the chartered limits of
Massachusetts, and the English government was too much occupied at home to
bestow its attention on this subject. There existed no authority to arrest their
settlement of the country. If they obtained the Indian title, there were none to assert
the title of the Crown. Under these circumstances, the settlement became
considerable. Individuals acquired separate property in lands which they cultivated
and improved; a government was established among themselves, and no power
existed in America which could rightfully interfere with it.
On the restoration of Charles II, this small society

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Page 21 U. S. 603

Much reliance has also been placed on a recital contained in the charter of Rhode
Island, and on a letter addressed to the governors of the neighboring colonies, by
the King's command, in which some expressions are inserted, indicating the royal
approbation of titles acquired from the Indians.

hastened to acknowledge his authority, and to solicit his confirmation of their title
to the soil, and to jurisdiction over the country. Their solicitations were successful,
and a charter was granted to them, containing the recital which has been
mentioned.

The charter to Rhode Island recites

It is obvious that this transaction can amount to no acknowledgment that the Indian
grant could convey a title paramount to that of the Crown, or could in itself
constitute a complete title. On the contrary, the charter of the Crown was
considered as indispensable to its completion.

"That the said John Clark and others had transplanted


Page 21 U. S. 602
themselves into the midst of the Indian nations, and were seized and possessed, by
purchase and consent of the said natives, to their full content, of such lands,"
&c. And the letter recites, that

It has never been contended that the Indian title amounted to nothing. Their right
of possession has never been questioned. The claim of government extends to the
complete ultimate title, charged with this right of possession and to the exclusive
power of acquiring that right. The object of the Crown was to settle the seacoast of
America, and when a portion of it was settled, without violating the rights of

others, by persons professing their loyalty, and soliciting the royal sanction of an
act, the consequences of which were ascertained to be beneficial, it would have
been as unwise as ungracious to expel them from their habitations, because they
had obtained the Indian title otherwise than through the agency of government.
The very grant of a charter is an assertion of the title of the Crown, and its words
convey the same idea. The country granted is said to be "our island called Rhode
Island," and the charter contains an actual grant of the soil as well as of the powers
of government.
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Page 21 U. S. 604
The letter was written a few months before the charter was issued, apparently at
the request of the agents of the intended colony, for the sole purpose of preventing
the trespasses of neighbors, who were disposed to claim some authority over them.
The King, being willing himself to ratify and confirm their title was, of course,
inclined to quiet them in their possession.
This charter and this letter certainly sanction a previous unauthorized purchase
from Indians under the circumstances attending that particular purchase, but are far
from supporting the general proposition, that a title acquired from the Indians
would be valid against a title acquired from the Crown, or without the
confirmation of the Crown.
The acts of the several colonial assemblies prohibiting purchases from the Indians
have also been relied on as proving that, independent of such prohibitions, Indian
deeds would be valid. But we think this fact, at most, equivocal. While the
existence of such purchases would justify their prohibition, even by colonies which
considered Indian deeds as previously invalid, the fact that such acts have been
generally passed, is strong evidence of the general opinion, that such purchases are
opposed by the soundest principles of wisdom and national policy.
After bestowing on this subject a degree of attention which was more required by
the magnitude of the interest in litigation, and the able and elaborate arguments of
the bar, than by its intrinsic difficulty, the court is decidedly of opinion, that the
plaintiffs do not exhibit a title which can
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Page 21 U. S. 605
be sustained in the courts of the United States, and that there is no error in the
judgment which was rendered against them in the District Court of Illinois.

Judgment affirmed with costs.

U.S. Supreme Court


Carino v. Insular Government, 212 U.S. 449 (1909)
Carino v. Insular Government of the Philippine Islands
No. 72

The acquisition of the Philippines was not for the purpose of acquiring the lands
occupied by the inhabitants, and under the Organic Act of July 1, 1902, c. 1369, 32
Stat. 691, providing that property rights are to be administered for the benefit of
the inhabitants, one who actually owned land for many years cannot be deprived of
it for failure to comply with certain ceremonies prescribed either by the acts of the
Philippine Commission or by Spanish law.
The Organic Act of the Philippines made a bill of rights embodying safeguards of
the Constitution, and, like the Constitution, extends those safeguards to all.

Argued January 13, 1909


Decided February 23, 1909

Every presumption of ownership is in favor of one actually occupying land for


many years, and against the government which seeks to deprive him of it, for
failure to comply with provisions of a subsequently enacted registration act.

212 U.S. 449


ERROR TO THE SUPREME COURT

Title by prescription against the crown existed under Spanish law in force in the
Philippine Islands prior to their acquisition by the United States, and one
occupying land in the Province of Benguet for more than fifty years before the
Treaty of Paris is entitled to the continued possession thereof.

OF THE PHILIPPINE ISLANDS


Syllabus
Writ of error is the general, and appeal the exceptional, method of bringing Cases
to this Court. The latter method is in the main confined to equity cases, and the
former is proper to bring up a judgment of the Supreme Court of the Philippine
Islands affirming a judgment of the Court of Land Registration dismissing an
application for registration of land.

7 Phil. 132 reversed.

Although a province may be excepted from the operation of Act No. 926 of 1903
of the Philippine Commission which provides for the registration and perfecting of
new titles, one who actually owns property in such province is entitled to
registration under Act No. 496 of 1902, which applies to the whole archipelago.

MR. JUSTICE HOLMES delivered the opinion of the Court.

While, in legal theory and as against foreign nations, sovereignty is absolute,


practically it is a question of strength and of varying degree, and it is for a new
sovereign to decide how far it will insist upon theoretical relations of the subject to
the former sovereign and how far it will recognize actual facts.
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Page 212 U. S. 450

The facts are stated in the opinion.

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Page 212 U. S. 455

This was an application to the Philippine Court of Land Registration for the
registration of certain land. The application was granted by the court on March 4,
1904. An appeal was taken to the Court of First Instance of the Province of
Benguet on behalf of the government of the Philippines, and also on behalf of the
United States, those governments having taken possession of the property for
public and military purposes. The Court of First Instance found the facts and
dismissed the application upon grounds of law. This judgment was affirmed by the
supreme court, 7 Phil. 132, and the case then was brought here by writ of error.

The material facts found are very few. The applicant and plaintiff in error is an
Igorot of the Province of Benguet, where the land lies. For more than fifty years
before the Treaty of
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Page 212 U. S. 456


Paris, April 11, 1899, as far back as the findings go, the plaintiff and his ancestors
had held the land as owners. His grandfather had lived upon it, and had maintained
fences sufficient for the holding of cattle, according to the custom of the country,
some of the fences, it seems, having been of much earlier date. His father had
cultivated parts and had used parts for pasturing cattle, and he had used it for
pasture in his turn. They all had been recognized as owners by the Igorots, and he
had inherited or received the land from his father in accordance with Igorot
custom. No document of title, however, had issued from the Spanish Crown, and
although, in 1893-1894 and again in 1896-1897, he made application for one under
the royal decrees then in force, nothing seems to have come of it, unless, perhaps,
information that lands in Benguet could not be conceded until those to be occupied
for a sanatorium, etc., had been designated -- a purpose that has been carried out
by the Philippine government and the United States. In 1901, the plaintiff filed a
petition, alleging ownership, under the mortgage law, and the lands were registered
to him, that process, however, establishing only a possessory title, it is said.
Before we deal with the merits, we must dispose of a technical point. The
government has spent some energy in maintaining that this case should have been
brought up by appeal, and not by writ of error. We are of opinion, however, that the
mode adopted was right. The proceeding for registration is likened to bills in
equity to quiet title, but it is different in principle. It is a proceeding in rem under a
statute of the type of the Torrens Act, such as was discussed in Tyler v. Court of
Registration, 175 Mass. 71. It is nearer to law than to equity, and is an assertion of
legal title; but we think it unnecessary to put it into either pigeon hole. A writ of
error is the general method of bringing cases to this Court, an appeal the exception,
confined to equity in the main. There is no reason for not applying the general rule
to this case. Ormsby v. Webb, 134 U. S. 47, 134 U. S. 65; Campbell v. Porter, 162
U. S. 478; Metropolitan R. Co. v. District of Columbia, 195 U. S. 322.
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Page 212 U. S. 457

Another preliminary matter may as well be disposed of here. It is suggested that,


even if the applicant have title, he cannot have it registered, because the Philippine
Commission's Act No. 926, of 1903, excepts the Province of Benguet among
others from its operation. But that act deals with the acquisition of new titles by
homestead entries, purchase, etc., and the perfecting of titles begun under the
Spanish law. The applicant's claim is that he now owns the land, and is entitled to
registration under the Philippine Commission's Act No. 496, of 1902, which
established a court for that purpose with jurisdiction "throughout the Philippine
Archipelago," 2, and authorized in general terms applications to be made by
persons claiming to own the legal estate in fee simple, as the applicant does. He is
entitled to registration if his claim of ownership can be maintained.
We come, then, to the question on which the case was decided below -- namely,
whether the plaintiff owns the land. The position of the government, shortly stated,
is that Spain assumed, asserted, and had title to all the land in the Philippines
except so far as it saw fit to permit private titles to be acquired; that there was no
prescription against the Crown, and that, if there was, a decree of June 25, 1880,
required registration within a limited time to make the title good; that the plaintiff's
land was not registered, and therefore became, if it was not always, public land;
that the United States succeeded to the title of Spain, and so that the plaintiff has
no rights that the Philippine government is bound to respect.
If we suppose for the moment that the government's contention is so far correct
that the Crown of Spain in form asserted a title to this land at the date of the Treaty
of Paris, to which the United States succeeded, it is not to be assumed without
argument that the plaintiff's case is at an end. It is true that Spain, in its earlier
decrees, embodied the universal feudal theory that all lands were held from the
Crown, and perhaps the general attitude of conquering nations toward people not
recognized as entitled to the treatment accorded to those
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Page 212 U. S. 458


in the same zone of civilization with themselves. It is true also that, in legal theory,
sovereignty is absolute, and that, as against foreign nations, the United States may
assert, as Spain asserted, absolute power. But it does not follow that, as against the
inhabitants of the Philippines, the United States asserts that Spain had such power.

When theory is left on one side, sovereignty is a question of strength, and may
vary in degree. How far a new sovereign shall insist upon the theoretical relation
of the subjects to the head in the past, and how far it shall recognize actual facts,
are matters for it to decide.
The Province of Benguet was inhabited by a tribe that the Solicitor General, in his
argument, characterized as a savage tribe that never was brought under the civil or
military government of the Spanish Crown. It seems probable, if not certain, that
the Spanish officials would not have granted to anyone in that province the
registration to which formerly the plaintiff was entitled by the Spanish laws, and
which would have made his title beyond question good. Whatever may have been
the technical position of Spain, it does not follow that, in the view of the United
States, he had lost all rights and was a mere trespasser when the present
government seized his land. The argument to that effect seems to amount to a
denial of native titles throughout an important part of the island of Luzon, at least,
for the want of ceremonies which the Spaniards would not have permitted and had
not the power to enforce.
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. It is obvious that, however stated, the reason for our taking over the
Philippines was different. No one, we suppose, would deny that, so far as
consistent with paramount necessities, 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. By the Organic Act of July 1, 1902, c. 1369, 12, 32 Stat. 691, all the
property and rights acquired there by the

"no law shall be enacted in said islands which shall deprive any person of life,
liberty, or property without due process of law, or deny to any person therein the
equal protection of the laws."
5. In the light of the declaration that we have quoted from 12, it is hard to
believe that the United States was ready to declare in the next breath that "any
person" did not embrace the inhabitants of Benguet, or that it meant by "property"
only that which had become such by ceremonies of which presumably a large part
of the inhabitants never had heard, and that it proposed to treat as public land what
they, by native custom and by long association -- one of the profoundest factors in
human thought -- regarded as their own.
It is true that, by 14, the government of the Philippines is empowered to enact
rules and prescribe terms for perfecting titles to public lands where some, but not
all, Spanish conditions had been fulfilled, and to issue patents to natives for not
more than sixteen hectares of public lands actually occupied by the native or his
ancestors before August 13, 1898. But this section perhaps might be satisfied if
confined to cases where the occupation was of land admitted to be public land, and
had not continued for such a length of time and under such circumstances as to
give rise to the understanding that the occupants were owners at that date. We
hesitate to suppose that it was intended to declare every native who had not a paper
title a trespasser, and to set the claims of all the wilder tribes afloat. It is true again
that there is excepted from the provision that we have quoted as to the
administration of the property and rights acquired by the United States such land
and property as shall be designated by the President for military or other
reservations,
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Page 212 U. S. 460


Page 212 U. S. 459
United States are to be administered "for the benefit of the inhabitants thereof." It
is reasonable to suppose that the attitude thus assumed by the United States with
regard to what was unquestionably its own is also its attitude in deciding what it
will claim for its own. The same statute made a bill of rights, embodying the
safeguards of the Constitution, and, like the Constitution, extends those safeguards
to all. It provides that

as this land since has been. But there still remains the question what property and
rights the United States asserted itself to have acquired.
Whatever the law upon these points may be, and we mean to go no further than the
necessities of decision demand, every presumption is and ought to be against the
government in a case like the present. It might, perhaps, be proper and sufficient to
say that when, as far back as testimony or memory goes, the land has been held by

individuals under a claim of private ownership, it will be presumed to have been


held in the same way from before the Spanish conquest, and never to have been
public land. Certainly, in a case like this, if there is doubt or ambiguity in the
Spanish law, we ought to give the applicant the benefit of the doubt. Whether
justice to the natives and the import of the organic act ought not to carry us beyond
a subtle examination of ancient texts, or perhaps even beyond the attitude of
Spanish law, humane though it was, it is unnecessary to decide. If, in a tacit way, it
was assumed that the wild tribes of the Philippines were to be dealt with as the
power and inclination of the conqueror might dictate, Congress has not yet
sanctioned the same course as the proper one "for the benefit of the inhabitants
thereof."
If the applicant's case is to be tried by the law of Spain, we do not discover such
clear proof that it was bad by that law as to satisfy us that he does not own the
land. To begin with, the older decrees and laws cited by the counsel for the
plaintiff in error seem to indicate pretty clearly that the natives were recognized as
owning some lands, irrespective of any royal grant. In other words, Spain did not
assume to convert all the native inhabitants of the Philippines into trespassers, or
even into tenants at will. For instance, Book 4, Title 12, Law 14 of the
Recopilacion de Leyes de las Indias, cited for a contrary conclusion in Valenton v.
Murciano, 3 Phil. 537, while it commands viceroys and others, when it seems
proper, to call for the exhibition of grants, directs them to confirm those who hold
by good grants or justa prescripcion. It is true that it
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Page 212 U. S. 461


begins by the characteristic assertion of feudal overlordship and the origin of all
titles in the King or his predecessors. That was theory and discourse. The fact was
that titles were admitted to exist that owed nothing to the powers of Spain beyond
this recognition in their books.
Prescription is mentioned again in the royal cedula of October 15, 1754, cited in 3
Phil. 546:

"Where such possessors shall not be able to produce title deeds, it shall be
sufficient if they shall show that ancient possession, as a valid title by
prescription."
It may be that this means possession from before 1700; but, at all events, the
principle is admitted. As prescription, even against Crown lands, was recognized
by the laws of Spain, we see no sufficient reason for hesitating to admit that it was
recognized in the Philippines in regard to lands over which Spain had only a paper
sovereignty.
The question comes, however, on the decree of June 25, 1880, for the adjustment
of royal lands wrongfully occupied by private individuals in the Philippine Islands.
This begins with the usual theoretic assertion that, for private ownership, there
must have been a grant by competent authority; but instantly descends to fact by
providing that, for all legal effects, those who have been in possession for certain
times shall be deemed owners. For cultivated land, twenty years, uninterrupted, is
enough. For uncultivated, thirty. Art. 5. So that, when this decree went into effect,
the applicant's father was owner of the land by the very terms of the decree. But, it
is said, the object of this law was to require the adjustment or registration
proceedings that it described, and in that way to require everyone to get a
document of title or lose his land. That purpose may have been entertained, but it
does not appear clearly to have been applicable to all. The regulations purport to
have been made "for the adjustment of royal lands wrongfully occupied by private
individuals." (We follow the translation in the government's brief.) It does not
appear that this land ever was royal land or wrongfully occupied. In Article 6, it is
provided that
"interested parties not included within the two preceding
Page 212 U. S. 462
articles [the articles recognizing prescription of twenty and thirty years] may
legalize their possession, and thereby acquire the full ownership of the said lands,
by means of adjustment proceedings, to be conducted in the following manner."

This seems, by its very terms, not to apply to those declared already to be owners
by lapse of time. Article 8 provides for the case of parties not asking an adjustment
of the lands of which they are unlawfully enjoying the possession, within one year,
and threatens that the treasury "will reassert the ownership of the state over the
lands," and will sell at auction such part as it does not reserve. The applicant's
possession was not unlawful, and no attempt at any such proceedings against him
or his father ever was made. Finally, it should be noted that the natural
construction of the decree is confirmed by the report of the council of state. That
report puts forward as a reason for the regulations that, in view of the condition of
almost all property in the Philippines, it is important to fix its status by general
rules on the principle that the lapse of a fixed period legalizes completely all
possession, recommends in two articles twenty and thirty years, as adopted in the
decree, and then suggests that interested parties not included in those articles may
legalize their possession and acquire ownership by adjustment at a certain price.

It will be perceived that the rights of the applicant under the Spanish law present a
problem not without difficulties for courts of a different legal tradition. We have
deemed it proper on that account to notice the possible effect of the change of
sovereignty and the act of Congress establishing the fundamental principles now to
be observed. Upon a consideration of the whole case, we are of opinion that law
and justice require that the applicant should be granted what he seeks, and should
not be deprived of what, by the practice and belief of those among whom he lived,
was his property, through a refined interpretation of an almost forgotten law of
Spain.
Judgment reversed.

It is true that the language of Articles 4 and 5 attributes title to those "who may
prove" possession for the necessary time, and we do not overlook the argument
that this means may prove in registration proceedings. It may be that an English
conveyancer would have recommended an application under the foregoing decree,
but certainly it was not calculated to convey to the mind of an Igorot chief the
notion that ancient family possessions were in danger, if he had read every word of
it. The words "may prove" (acrediten), as well, or better, in view of the other
provisions, might be taken to mean when called upon to do so in any litigation.
There are indications that registration was expected from all, but none sufficient to
show that, for want of it, ownership actually gained would be lost.
chanroblesvirtualawlibrary

Page 212 U. S. 463


The effect of the proof, wherever made, was not to confer title, but simply to
establish it, as already conferred by the decree, if not by earlier law. The royal
decree of February 13, 1894, declaring forfeited titles that were capable of
adjustment under the decree of 1880, for which adjustment had not been sought,
should not be construed as a confiscation, but as the withdrawal of a privilege. As
a matter of fact, the applicant never was disturbed. This same decree is quoted by
the Court of Land Registration for another recognition of the common law
prescription of thirty years as still running against alienable Crown land.

Republic of the Philippines


SUPREME COURT
Manila
EN BANC
G.R. No. 167707

October 8, 2008

THE SECRETARY OF THE DEPARTMENT OF


ENVIRONMENT AND NATURAL RESOURCES, THE
REGIONAL EXECUTIVE DIRECTOR, DENR-REGION VI,
REGIONAL TECHNICAL DIRECTOR FOR LANDS, LANDS
MANAGEMENT BUREAU, REGION VI PROVINCIAL
ENVIRONMENT AND NATURAL RESOURCES OFFICER OF
KALIBO, AKLAN, REGISTER OF DEEDS, DIRECTOR OF
LAND REGISTRATION AUTHORITY, DEPARTMENT OF
TOURISM SECRETARY, DIRECTOR OF PHILIPPINE
TOURISM AUTHORITY, petitioners,
vs.
MAYOR JOSE S. YAP, LIBERTAD TALAPIAN, MILA Y.
SUMNDAD, and ANICETO YAP, in their behalf and in behalf of
all those similarly situated, respondents.

REYES, R.T., J.:


AT stake in these consolidated cases is the right of the present
occupants of Boracay Island to secure titles over their occupied lands.
There are two consolidated petitions. The first is G.R. No. 167707, a
petition for review on certiorari of the Decision1 of the Court of
Appeals (CA) affirming that2 of the Regional Trial Court (RTC) in
Kalibo, Aklan, which granted the petition for declaratory relief filed
by respondents-claimants Mayor Jose Yap, et al. and ordered the
survey of Boracay for titling purposes. The second is G.R. No.
173775, a petition for prohibition, mandamus, and nullification of
Proclamation No. 10645">[3] issued by President Gloria MacapagalArroyo classifying Boracay into reserved forest and agricultural land.
The Antecedents

x-------------------------------------------------x
G.R. No. G.R. No. 173775

October 8, 2008

DR. ORLANDO SACAY and WILFREDO GELITO, joined by


THE LANDOWNERS OF BORACAY SIMILARLY SITUATED
NAMED IN A LIST, ANNEX "A" OF THIS
PETITION, petitioners,
vs.
THE SECRETARY OF THE DEPARTMENT OF
ENVIRONMENT AND NATURAL RESOURCES, THE
REGIONAL TECHNICAL DIRECTOR FOR LANDS, LANDS
MANAGEMENT BUREAU, REGION VI, PROVINCIAL
ENVIRONMENT AND NATURAL RESOURCES OFFICER,
KALIBO, AKLAN, respondents.
DECISION

G.R. No. 167707


Boracay Island in the Municipality of Malay, Aklan, with its powdery
white sand beaches and warm crystalline waters, is reputedly a
premier Philippine tourist destination. The island is also home to
12,003 inhabitants4 who live in the bone-shaped islands
three barangays.5
On April 14, 1976, the Department of Environment and Natural
Resources (DENR) approved the National Reservation Survey of
Boracay
Island,6 which identified several lots as being occupied or claimed by
named persons.7
On November 10, 1978, then President Ferdinand Marcos issued
Proclamation No. 18018 declaring Boracay Island, among other
islands, caves and peninsulas in the Philippines, as tourist zones and

marine reservesunder the administration of the Philippine Tourism


Authority (PTA). President Marcos later approved the issuance
of PTA Circular 3-829 dated September 3, 1982, to implement
Proclamation No. 1801.
Claiming that Proclamation No. 1801 and PTA Circular No 3-82
precluded them from filing an application for judicial confirmation of
imperfect title or survey of land for titling purposes, respondentsclaimants
Mayor Jose S. Yap, Jr., Libertad Talapian, Mila Y. Sumndad, and
Aniceto Yap filed a petition for declaratory relief with the RTC in
Kalibo, Aklan.
In their petition, respondents-claimants alleged that Proclamation No.
1801 and PTA Circular No. 3-82 raised doubts on their right to secure
titles over their occupied lands. They declared that they themselves, or
through their predecessors-in-interest, had been in open, continuous,
exclusive, and notorious possession and occupation in Boracay since
June 12, 1945, or earlier since time immemorial. They declared their
lands for tax purposes and paid realty taxes on them.10
Respondents-claimants posited that Proclamation No. 1801 and its
implementing Circular did not place Boracay beyond the commerce
of man. Since the Island was classified as a tourist zone, it was
susceptible of private ownership. Under Section 48(b) of
Commonwealth Act (CA) No. 141, otherwise known as the Public
Land Act, they had the right to have the lots registered in their names
through judicial confirmation of imperfect titles.
The Republic, through the Office of the Solicitor General (OSG),
opposed the petition for declaratory relief. The OSG countered that
Boracay Island was an unclassified land of the public domain. It
formed part of the mass of lands classified as "public forest," which
was not available for disposition pursuant to Section 3(a) of

Presidential Decree (PD) No. 705 or the Revised Forestry Code,11 as


amended.
The OSG maintained that respondents-claimants reliance on PD No.
1801 and PTA Circular No. 3-82 was misplaced. Their right to judicial
confirmation of title was governed by CA No. 141 and PD No. 705.
Since Boracay Island had not been classified as alienable and
disposable, whatever possession they had cannot ripen into
ownership.
During pre-trial, respondents-claimants and the OSG stipulated on the
following facts: (1) respondents-claimants were presently in
possession of parcels of land in Boracay Island; (2) these parcels of
land were planted with coconut trees and other natural growing trees;
(3) the coconut trees had heights of more or less twenty (20) meters
and were planted more or less fifty (50) years ago; and (4)
respondents-claimants declared the land they were occupying for tax
purposes.12
The parties also agreed that the principal issue for resolution was
purely legal: whether Proclamation No. 1801 posed any legal
hindrance or impediment to the titling of the lands in Boracay. They
decided to forego with the trial and to submit the case for resolution
upon submission of their respective memoranda.13
The RTC took judicial notice14 that certain parcels of land in Boracay
Island, more particularly Lots 1 and 30, Plan PSU-5344, were covered
by Original Certificate of Title No. 19502 (RO 2222) in the name of
the Heirs of Ciriaco S. Tirol. These lots were involved in Civil Case
Nos. 5222 and 5262 filed before the RTC of Kalibo, Aklan.15 The titles
were issued on
August 7, 1933.16
RTC and CA Dispositions

On July 14, 1999, the RTC rendered a decision in favor of


respondents-claimants, with a fallo reading:
WHEREFORE, in view of the foregoing, the Court declares that
Proclamation No. 1801 and PTA Circular No. 3-82 pose no legal
obstacle to the petitioners and those similarly situated to acquire title
to their lands in Boracay, in accordance with the applicable laws and
in the manner prescribed therein; and to have their lands surveyed and
approved by respondent Regional Technical Director of Lands as the
approved survey does not in itself constitute a title to the land.
SO ORDERED.17
The RTC upheld respondents-claimants right to have their occupied
lands titled in their name. It ruled that neither Proclamation No. 1801
nor PTA Circular No. 3-82 mentioned that lands in Boracay were
inalienable or could not be the subject of disposition.18 The Circular
itself recognized private ownership of lands.19 The trial court cited
Sections 8720 and 5321 of the Public Land Act as basis for
acknowledging private ownership of lands in Boracay and that only
those forested areas in public lands were declared as part of the forest
reserve.22
The OSG moved for reconsideration but its motion was denied.23 The
Republic then appealed to the CA.
On December 9, 2004, the appellate court affirmed in toto the RTC
decision, disposing as follows:
WHEREFORE, in view of the foregoing premises, judgment is
hereby rendered by us DENYING the appeal filed in this case and
AFFIRMING the decision of the lower court.24

The CA held that respondents-claimants could not be prejudiced by a


declaration that the lands they occupied since time immemorial were
part of a forest reserve.
Again, the OSG sought reconsideration but it was similarly
denied.25 Hence, the present petition under Rule 45.
G.R. No. 173775
On May 22, 2006, during the pendency of G.R. No. 167707, President
Gloria Macapagal-Arroyo issued Proclamation No. 106426 classifying
Boracay Island into four hundred (400) hectares of reserved forest
land (protection purposes) and six hundred twenty-eight and 96/100
(628.96) hectares of agricultural land (alienable and disposable). The
Proclamation likewise provided for a fifteen-meter buffer zone on
each side of the centerline of roads and trails, reserved for right-ofway and which shall form part of the area reserved for forest land
protection purposes.
On August 10, 2006, petitioners-claimants Dr. Orlando
Sacay,27 Wilfredo Gelito,28 and other landowners29 in Boracay filed
with this Court an original petition for prohibition, mandamus, and
nullification of Proclamation No. 1064.30 They allege that the
Proclamation infringed on their "prior vested rights" over portions of
Boracay. They have been in continued possession of their respective
lots in Boracay since time immemorial. They have also invested
billions of pesos in developing their lands and building internationally
renowned first class resorts on their lots.31
Petitioners-claimants contended that there is no need for a
proclamation reclassifying Boracay into agricultural land. Being
classified as neither mineral nor timber land, the island
is deemed agricultural pursuant to the Philippine Bill of 1902 and Act
No. 926, known as the first Public Land Act.32 Thus, their possession

in the concept of owner for the required period entitled them to


judicial confirmation of imperfect title.
Opposing the petition, the OSG argued that petitioners-claimants do
not have a vested right over their occupied portions in the island.
Boracay is an unclassified public forest land pursuant to Section 3(a)
of PD No. 705. Being public forest, the claimed portions of the island
are inalienable and cannot be the subject of judicial confirmation of
imperfect title. It is only the executive department, not the courts,
which has authority to reclassify lands of the public domain into
alienable and disposable lands. There is a need for a positive
government act in order to release the lots for disposition.
On November 21, 2006, this Court ordered the consolidation of the
two petitions as they principally involve the same issues on the land
classification of Boracay Island.33
Issues
G.R. No. 167707
The OSG raises the lone issue of whether Proclamation No. 1801 and
PTA Circular No. 3-82 pose any legal obstacle for respondents, and all
those similarly situated, to acquire title to their occupied lands in
Boracay Island.34
G.R. No. 173775
Petitioners-claimants hoist five (5) issues, namely:
I.
AT THE TIME OF THE ESTABLISHED POSSESSION OF
PETITIONERS IN CONCEPT OF OWNER OVER THEIR
RESPECTIVE AREAS IN BORACAY, SINCE TIME

IMMEMORIAL OR AT THE LATEST SINCE 30 YRS. PRIOR TO


THE FILING OF THE PETITION FOR DECLARATORY RELIEF
ON NOV. 19, 1997, WERE THE AREAS OCCUPIED BY THEM
PUBLIC AGRICULTURAL LANDS AS DEFINED BY LAWS
THEN ON JUDICIAL CONFIRMATION OF IMPERFECT
TITLES OR PUBLIC FOREST AS DEFINED BY SEC. 3a, PD 705?
II.
HAVE PETITIONERS OCCUPANTS ACQUIRED PRIOR VESTED
RIGHT OF PRIVATE OWNERSHIPOVER THEIR OCCUPIED
PORTIONS OF BORACAY LAND, DESPITE THE FACT THAT
THEY HAVE NOT APPLIED YET FOR JUDICIAL
CONFIRMATION OF IMPERFECT TITLE?
III.
IS THE EXECUTIVE DECLARATION OF THEIR AREAS AS
ALIENABLE AND DISPOSABLE UNDER SEC 6, CA 141 [AN]
INDISPENSABLE PRE-REQUISITE FOR PETITIONERS TO
OBTAIN TITLEUNDER THE TORRENS SYSTEM?
IV.
IS THE ISSUANCE OF PROCLAMATION 1064 ON MAY 22,
2006, VIOLATIVE OF THE PRIOR VESTED RIGHTS TO
PRIVATE OWNERSHIP OF PETITIONERS OVER THEIR LANDS
IN BORACAY, PROTECTED BY THE DUE PROCESS CLAUSE
OF THE CONSTITUTION OR IS PROCLAMATION 1064
CONTRARY TO SEC. 8, CA 141, OR SEC. 4(a) OF RA 6657.
V.
CAN RESPONDENTS BE COMPELLED BY MANDAMUS TO
ALLOW THE SURVEY AND TO APPROVE THE SURVEY

PLANS FOR PURPOSES OF THE APPLICATION FOR TITLING


OF THE LANDS OF PETITIONERS IN BORACAY?
35
(Underscoring supplied)
In capsule, the main issue is whether private claimants (respondentsclaimants in G.R. No. 167707 and petitioners-claimants in G.R. No.
173775) have a right to secure titles over their occupied portions in
Boracay. The twin petitions pertain to their right, if any, to judicial
confirmation of imperfect title under CA No. 141, as amended. They
do not involve their right to secure title under other pertinent laws.
Our Ruling
Regalian Doctrine and power of the executive
to reclassify lands of the public domain
Private claimants rely on three (3) laws and executive acts in their bid
for judicial confirmation of imperfect title, namely: (a) Philippine Bill
of 190236 in relation to Act No. 926, later amended and/or superseded
by Act No. 2874 and CA No. 141;37 (b) Proclamation No.
180138 issued by then President Marcos; and (c) Proclamation No.
106439 issued by President Gloria Macapagal-Arroyo. We shall
proceed to determine their rights to apply for judicial confirmation of
imperfect title under these laws and executive acts.
But first, a peek at the Regalian principle and the power of the
executive to reclassify lands of the public domain.
The 1935 Constitution classified lands of the public domain into
agricultural, forest or timber.40 Meanwhile, the 1973 Constitution
provided the following divisions: agricultural, industrial or
commercial, residential, resettlement, mineral, timber or forest and
grazing lands, and such other classes as may be provided by
law,41 giving the government great leeway for classification.42 Then the

1987 Constitution reverted to the 1935 Constitution classification with


one addition: national parks.43 Of these, only agricultural lands may be
alienated.44 Prior to Proclamation No. 1064 of May 22, 2006, Boracay
Island had never been expressly and administratively classified under
any of these grand divisions. Boracay was an unclassified land of the
public domain.
The Regalian Doctrine dictates that all lands of the public domain
belong to the State, that the State is the source of any asserted right to
ownership of land and charged with the conservation of such
patrimony.45 The doctrine has been consistently adopted under the
1935, 1973, and 1987 Constitutions.46
All lands not otherwise appearing to be clearly within private
ownership are presumed to belong to the State.47Thus, all lands that
have not been acquired from the government, either by purchase or by
grant, belong to the State as part of the inalienable public
domain.48 Necessarily, it is up to the State to determine if lands of the
public domain will be disposed of for private ownership. The
government, as the agent of the state, is possessed of the plenary
power as the persona in law to determine who shall be the favored
recipients of public lands, as well as under what terms they may be
granted such privilege, not excluding the placing of obstacles in the
way of their exercise of what otherwise would be ordinary acts of
ownership.49
Our present land law traces its roots to the Regalian Doctrine. Upon
the Spanish conquest of the Philippines, ownership of all lands,
territories and possessions in the Philippines passed to the Spanish
Crown.50 The Regalian doctrine was first introduced in the Philippines
through the Laws of the Indies and the Royal Cedulas,which laid the
foundation that "all lands that were not acquired from the
Government, either by purchase or by grant, belong to the public
domain."51

The Laws of the Indies was followed by the Ley Hipotecaria or the
Mortgage Law of 1893. The Spanish Mortgage Law provided for the
systematic registration of titles and deeds as well as possessory
claims.52
The Royal Decree of 1894 or the Maura Law53 partly amended the
Spanish Mortgage Law and the Laws of the Indies. It established
possessory information as the method of legalizing possession of
vacant Crown land, under certain conditions which were set forth in
said decree.54 Under Section 393 of the Maura Law, an informacion
posesoria or possessory information title,55 when duly inscribed in the
Registry of Property, is converted into a title of ownership only after
the lapse of twenty (20) years of uninterrupted possession which must
be actual, public, and adverse,56 from the date of its
inscription.57 However, possessory information title had to be
perfected one year after the promulgation of the Maura Law, or until
April 17, 1895. Otherwise, the lands would revert to the State.58
In sum, private ownership of land under the Spanish regime could
only be founded on royal concessions which took various forms,
namely: (1) titulo real or royal grant; (2) concesion especial or special
grant; (3) composicion con el estado or adjustment title; (4) titulo de
compra or title by purchase; and (5) informacion posesoria or
possessory information title.59>
The first law governing the disposition of public lands in the
Philippines under American rule was embodied in the Philippine Bill
of 1902.60 By this law, lands of the public domain in the Philippine
Islands were classified into three (3) grand divisions, to wit:
agricultural, mineral, and timber or forest lands.61 The act provided
for, among others, the disposal of mineral lands by means of absolute
grant (freehold system) and by lease (leasehold system).62 It also
provided the definition by exclusion of "agricultural public
lands."63 Interpreting the meaning of "agricultural lands" under the

Philippine Bill of 1902, the Court declared in Mapa v. Insular


Government:64
x x x In other words, that the phrase "agricultural land" as used in
Act No. 926 means those public lands acquired from Spain which
are not timber or mineral lands. x x x65 (Emphasis Ours)
On February 1, 1903, the Philippine Legislature passed Act
No. 496, otherwise known as the Land Registration Act. The act
established a system of registration by which recorded title becomes
absolute, indefeasible, and imprescriptible. This is known as the
Torrens system.66
Concurrently, on October 7, 1903, the Philippine Commission passed
Act No. 926, which was the first Public Land Act. The Act introduced
the homestead system and made provisions for judicial and
administrative confirmation of imperfect titles and for the sale or lease
of public lands. It permitted corporations regardless of the nationality
of persons owning the controlling stock to lease or purchase lands of
the public domain.67 Under the Act, open, continuous, exclusive, and
notorious possession and occupation of agricultural lands for the next
ten (10) years preceding July 26, 1904 was sufficient for judicial
confirmation of imperfect title.68
On November 29, 1919, Act No. 926 was superseded by Act
No. 2874, otherwise known as the second Public Land Act. This new,
more comprehensive law limited the exploitation of agricultural lands
to Filipinos and Americans and citizens of other countries which gave
Filipinos the same privileges. For judicial confirmation of title,
possession and occupation en concepto dueo since time immemorial,
or since July 26, 1894, was required.69
After the passage of the 1935 Constitution, CA No. 141 amended Act
No. 2874 on December 1, 1936. To this day, CA No. 141, as
amended, remains as the existing general law governing the

classification and disposition of lands of the public domain other than


timber and mineral lands,70 and privately owned lands which reverted
to the State.71
Section 48(b) of CA No. 141 retained the requirement under Act No.
2874 of possession and occupation of lands of the public domain
since time immemorial or since July 26, 1894. However, this
provision was superseded by Republic Act (RA) No. 1942,72 which
provided for a simple thirty-year prescriptive period for judicial
confirmation of imperfect title. The provision was last amended
by PD No. 1073,73 which now provides for possession and occupation
of the land applied for since June 12, 1945, or earlier.74
The issuance of PD No. 89275 on February 16, 1976 discontinued the
use of Spanish titles as evidence in land registration
proceedings.76 Under the decree, all holders of Spanish titles or grants
should apply for registration of their lands under Act No. 496 within
six (6) months from the effectivity of the decree on February 16,
1976. Thereafter, the recording of all unregistered lands77 shall be
governed by Section 194 of the Revised Administrative Code, as
amended by Act No. 3344.
On June 11, 1978, Act No. 496 was amended and updated by PD No.
1529, known as the Property Registration Decree. It was enacted to
codify the various laws relative to registration of property.78 It governs
registration of lands under the Torrens system as well as unregistered
lands, including chattel mortgages.79
A positive act declaring land as alienable and disposable is
required. In keeping with the presumption of State ownership, the
Court has time and again emphasized that there must be a positive act
of the government, such as an official proclamation,80 declassifying
inalienable public land into disposable land for agricultural or other
purposes.81 In fact, Section 8 of CA No. 141 limits alienable or

disposable lands only to those lands which have been "officially


delimited and classified."82
The burden of proof in overcoming the presumption of State
ownership of the lands of the public domain is on the person applying
for registration (or claiming ownership), who must prove that the land
subject of the application is alienable or disposable.83 To overcome
this presumption, incontrovertible evidence must be established that
the land subject of the application (or claim) is alienable or
disposable.84 There must still be a positive act declaring land of the
public domain as alienable and disposable. To prove that the land
subject of an application for registration is alienable, the applicant
must establish the existence of a positive act of the government such
as a presidential proclamation or an executive order; an administrative
action; investigation reports of Bureau of Lands investigators; and a
legislative act or a statute.85 The applicant may also secure a
certification from the government that the land claimed to have been
possessed for the required number of years is alienable and
disposable.86
In the case at bar, no such proclamation, executive order,
administrative action, report, statute, or certification was presented to
the Court. The records are bereft of evidence showing that, prior to
2006, the portions of Boracay occupied by private claimants were
subject of a government proclamation that the land is alienable and
disposable. Absent such well-nigh incontrovertible evidence, the
Court cannot accept the submission that lands occupied by private
claimants were already open to disposition before 2006. Matters of
land classification or reclassification cannot be assumed. They call for
proof.87
Ankron and De Aldecoa did not make the whole of Boracay Island,
or portions of it, agricultural lands.Private claimants posit that
Boracay was already an agricultural land pursuant to the old
cases Ankron v. Government of the Philippine Islands (1919)88 and De

Aldecoa v. The Insular Government (1909).89 These cases were


decided under the provisions of the Philippine Bill of 1902 and Act
No. 926. There is a statement in these old cases that "in the absence of
evidence to the contrary, that in each case the lands are agricultural
lands until the contrary is shown."90
Private claimants reliance on Ankron and De Aldecoa is misplaced.
These cases did not have the effect of converting the whole of
Boracay Island or portions of it into agricultural lands. It should be
stressed that the Philippine Bill of 1902 and Act No. 926 merely
provided the manner through which land registration courts would
classify lands of the public domain. Whether the land would be
classified as timber, mineral, or agricultural depended on proof
presented in each case.
Ankron and De Aldecoa were decided at a time when the President of
the Philippines had no power to classify lands of the public domain
into mineral, timber, and agricultural. At that time, the courts were
free to make corresponding classifications in justiciable cases, or were
vested with implicit power to do so, depending upon the
preponderance of the evidence.91 This was the Courts ruling in Heirs
of the Late Spouses Pedro S. Palanca and Soterranea Rafols Vda. De
Palanca v. Republic,92 in which it stated, through Justice Adolfo
Azcuna, viz.:
x x x Petitioners furthermore insist that a particular land need not be
formally released by an act of the Executive before it can be deemed
open to private ownership, citing the cases of Ramos v. Director of
Lands and Ankron v. Government of the Philippine Islands.
xxxx
Petitioners reliance upon Ramos v. Director of Lands and Ankron v.
Government is misplaced. These cases were decided under the
Philippine Bill of 1902 and the first Public Land Act No. 926 enacted

by the Philippine Commission on October 7, 1926, under which there


was no legal provision vesting in the Chief Executive or President of
the Philippines the power to classify lands of the public domain into
mineral, timber and agricultural so that the courts then were free to
make corresponding classifications in justiciable cases, or were vested
with implicit power to do so, depending upon the preponderance of
the evidence.93
To aid the courts in resolving land registration cases under Act No.
926, it was then necessary to devise a presumption on land
classification. Thus evolved the dictum in Ankron that "the courts
have a right to presume, in the absence of evidence to the contrary,
that in each case the lands are agricultural lands until the contrary is
shown."94
But We cannot unduly expand the presumption in Ankron and De
Aldecoa to an argument that all lands of the public domain had been
automatically reclassified as disposable and alienable agricultural
lands. By no stretch of imagination did the presumption convert all
lands of the public domain into agricultural lands.
If We accept the position of private claimants, the Philippine Bill of
1902 and Act No. 926 would have automatically made all lands in the
Philippines, except those already classified as timber or mineral land,
alienable and disposable lands. That would take these lands out of
State ownership and worse, would be utterly inconsistent with and
totally repugnant to the long-entrenched Regalian doctrine.
The presumption in Ankron and De Aldecoa attaches only to land
registration cases brought under the provisions of Act No. 926, or
more specifically those cases dealing with judicial and administrative
confirmation of imperfect titles. The presumption applies to an
applicant for judicial or administrative conformation of imperfect title
under Act No. 926. It certainly cannot apply to landowners, such as
private claimants or their predecessors-in-interest, who failed to avail

themselves of the benefits of Act No. 926. As to them, their land


remained unclassified and, by virtue of the Regalian doctrine,
continued to be owned by the State.
In any case, the assumption in Ankron and De Aldecoa was not
absolute. Land classification was, in the end, dependent on proof. If
there was proof that the land was better suited for non-agricultural
uses, the courts could adjudge it as a mineral or timber land despite
the presumption. In Ankron, this Court stated:
In the case of Jocson vs. Director of Forestry (supra), the AttorneyGeneral admitted in effect that whether the particular land in question
belongs to one class or another is a question of fact. The mere fact that
a tract of land has trees upon it or has mineral within it is not of itself
sufficient to declare that one is forestry land and the other, mineral
land. There must be some proof of the extent and present or future
value of the forestry and of the minerals. While, as we have just said,
many definitions have been given for "agriculture," "forestry," and
"mineral" lands, and that in each case it is a question of fact, we think
it is safe to say that in order to be forestry or mineral land the proof
must show that it is more valuable for the forestry or the mineral
which it contains than it is for agricultural purposes. (Sec. 7, Act No.
1148.) It is not sufficient to show that there exists some trees upon the
land or that it bears some mineral. Land may be classified as forestry
or mineral today, and, by reason of the exhaustion of the timber or
mineral, be classified as agricultural land tomorrow. And vice-versa,
by reason of the rapid growth of timber or the discovery of valuable
minerals, lands classified as agricultural today may be differently
classified tomorrow. Each case must be decided upon the proof in
that particular case, having regard for its present or future value
for one or the other purposes. We believe, however, considering the
fact that it is a matter of public knowledge that a majority of the lands
in the Philippine Islands are agricultural lands that the courts have a
right to presume, in the absence of evidence to the contrary, that in
each case the lands are agricultural lands until the contrary is

shown. Whatever the land involved in a particular land


registration case is forestry or mineral land must, therefore, be a
matter of proof. Its superior value for one purpose or the other is
a question of fact to be settled by the proof in each particular
case. The fact that the land is a manglar [mangrove swamp] is not
sufficient for the courts to decide whether it is agricultural, forestry, or
mineral land. It may perchance belong to one or the other of said
classes of land. The Government, in the first instance, under the
provisions of Act No. 1148, may, by reservation, decide for itself what
portions of public land shall be considered forestry land, unless
private interests have intervened before such reservation is made. In
the latter case, whether the land is agricultural, forestry, or mineral, is
a question of proof. Until private interests have intervened, the
Government, by virtue of the terms of said Act (No. 1148), may
decide for itself what portions of the "public domain" shall be set
aside and reserved as forestry or mineral land. (Ramos vs. Director of
Lands, 39 Phil. 175; Jocson vs. Director of
Forestry, supra)95 (Emphasis ours)
Since 1919, courts were no longer free to determine the classification
of lands from the facts of each case, except those that have already
became private lands.96 Act No. 2874, promulgated in 1919 and
reproduced in Section 6 of CA No. 141, gave the Executive
Department, through the President, the exclusive prerogative to
classify or reclassify public lands into alienable or disposable, mineral
or forest.96-a Since then, courts no longer had the authority, whether
express or implied, to determine the classification of lands of the
public domain.97
Here, private claimants, unlike the Heirs of Ciriaco Tirol who were
issued their title in 1933,98 did not present a justiciable case for
determination by the land registration court of the propertys land
classification. Simply put, there was no opportunity for the courts then
to resolve if the land the Boracay occupants are now claiming were
agricultural lands. When Act No. 926 was supplanted by Act No. 2874

in 1919, without an application for judicial confirmation having been


filed by private claimants or their predecessors-in-interest, the courts
were no longer authorized to determine the propertys land
classification. Hence, private claimants cannot bank on Act No. 926.
We note that the RTC decision99 in G.R. No. 167707
mentioned Krivenko v. Register of Deeds of Manila,100 which was
decided in 1947 when CA No. 141, vesting the Executive with the
sole power to classify lands of the public domain was already in
effect. Krivenko cited the old cases Mapa v. Insular
Government,101 De Aldecoa v. The Insular Government,102 and Ankron
v. Government of the Philippine Islands.103
Krivenko, however, is not controlling here because it involved a
totally different issue. The pertinent issue inKrivenko was whether
residential lots were included in the general classification of
agricultural lands; and if so, whether an alien could acquire a
residential lot. This Court ruled that as an alien, Krivenko was
prohibited by the 1935 Constitution104 from acquiring agricultural
land, which included residential lots. Here, the issue is whether
unclassified lands of the public domain are automatically deemed
agricultural.
Notably, the definition of "agricultural public lands" mentioned
in Krivenko relied on the old cases decided prior to the enactment of
Act No. 2874, including Ankron and De Aldecoa.105 As We have
already stated, those cases cannot apply here, since they were decided
when the Executive did not have the authority to classify lands as
agricultural, timber, or mineral.
Private claimants continued possession under Act No. 926 does not
create a presumption that the land is alienable. Private claimants
also contend that their continued possession of portions of Boracay
Island for the requisite period of ten (10) years under Act No.

926106 ipso facto converted the island into private ownership. Hence,
they may apply for a title in their name.
A similar argument was squarely rejected by the Court in Collado v.
Court of Appeals.107 Collado, citing the separate opinion of now Chief
Justice Reynato S. Puno in Cruz v. Secretary of Environment and
Natural Resources,107-a ruled:
"Act No. 926, the first Public Land Act, was passed in pursuance of
the provisions of the Philippine Bill of 1902. The law governed the
disposition of lands of the public domain. It prescribed rules and
regulations for the homesteading, selling and leasing of portions of
the public domain of the Philippine Islands, and prescribed the terms
and conditions to enable persons to perfect their titles to public lands
in the Islands. It also provided for the "issuance of patents to certain
native settlers upon public lands," for the establishment of town sites
and sale of lots therein, for the completion of imperfect titles, and for
the cancellation or confirmation of Spanish concessions and grants in
the Islands." In short, the Public Land Act operated on the assumption
that title to public lands in the Philippine Islands remained in the
government; and that the governments title to public land sprung
from the Treaty of Paris and other subsequent treaties between Spain
and the United States. The term "public land" referred to all lands of
the public domain whose title still remained in the government and
are thrown open to private appropriation and settlement, and excluded
the patrimonial property of the government and the friar lands."
Thus, it is plain error for petitioners to argue that under the
Philippine Bill of 1902 and Public Land Act No. 926, mere
possession by private individuals of lands creates the legal
presumption that the lands are alienable and
disposable.108 (Emphasis Ours)
Except for lands already covered by existing titles, Boracay was an
unclassified land of the public domain prior to Proclamation No.

1064. Such unclassified lands are considered public forest under


PD No. 705. The DENR109 and the National Mapping and Resource
Information Authority110 certify that Boracay Island is an unclassified
land of the public domain.
PD No. 705 issued by President Marcos categorized all unclassified
lands of the public domain as public forest. Section 3(a) of PD No.
705 defines a public forest as "a mass of lands of the public domain
which has not been the subject of the present system of
classification for the determination of which lands are needed for
forest purpose and which are not." Applying PD No. 705, all
unclassified lands, including those in Boracay Island, are ipso
factoconsidered public forests. PD No. 705, however, respects titles
already existing prior to its effectivity.
The Court notes that the classification of Boracay as a forest land
under PD No. 705 may seem to be out of touch with the present
realities in the island. Boracay, no doubt, has been partly stripped of
its forest cover to pave the way for commercial developments. As a
premier tourist destination for local and foreign tourists, Boracay
appears more of a commercial island resort, rather than a forest land.
Nevertheless, that the occupants of Boracay have built multi-million
peso beach resorts on the island;111 that the island has already been
stripped of its forest cover; or that the implementation of
Proclamation No. 1064 will destroy the islands tourism industry,
do not negate its character as public forest.
Forests, in the context of both the Public Land Act and the
Constitution112 classifying lands of the public domain into
"agricultural, forest or timber, mineral lands, and national parks," do
not necessarily refer to large tracts of wooded land or expanses
covered by dense growths of trees and underbrushes.113 The discussion
in Heirs of Amunategui v. Director of Forestry114 is particularly
instructive:

A forested area classified as forest land of the public domain does not
lose such classification simply because loggers or settlers may have
stripped it of its forest cover. Parcels of land classified as forest land
may actually be covered with grass or planted to crops by kaingin
cultivators or other farmers. "Forest lands" do not have to be on
mountains or in out of the way places. Swampy areas covered by
mangrove trees, nipa palms, and other trees growing in brackish or
sea water may also be classified as forest land. The classification is
descriptive of its legal nature or status and does not have to be
descriptive of what the land actually looks like. Unless and until the
land classified as "forest" is released in an official proclamation to
that effect so that it may form part of the disposable agricultural lands
of the public domain, the rules on confirmation of imperfect title do
not apply.115 (Emphasis supplied)
There is a big difference between "forest" as defined in a dictionary
and "forest or timber land" as a classification of lands of the public
domain as appearing in our statutes. One is descriptive of what
appears on the land while the other is a legal status, a classification for
legal purposes.116 At any rate, the Court is tasked to determine
thelegal status of Boracay Island, and not look into its physical layout.
Hence, even if its forest cover has been replaced by beach resorts,
restaurants and other commercial establishments, it has not been
automatically converted from public forest to alienable agricultural
land.
Private claimants cannot rely on Proclamation No. 1801 as basis
for judicial confirmation of imperfect title. The proclamation did
not convert Boracay into an agricultural land. However, private
claimants argue that Proclamation No. 1801 issued by then President
Marcos in 1978 entitles them to judicial confirmation of imperfect
title. The Proclamation classified Boracay, among other islands, as a
tourist zone. Private claimants assert that, as a tourist spot, the island
is susceptible of private ownership.

Proclamation No. 1801 or PTA Circular No. 3-82 did not convert the
whole of Boracay into an agricultural land. There is nothing in the law
or the Circular which made Boracay Island an agricultural land. The
reference in Circular No. 3-82 to "private lands"117 and "areas declared
as alienable and disposable"118 does not by itself classify the entire
island as agricultural. Notably, Circular No. 3-82 makes reference not
only to private lands and areas but also to public forested lands. Rule
VIII, Section 3 provides:
No trees in forested private lands may be cut without prior authority
from the PTA. All forested areas in public lands are declared forest
reserves. (Emphasis supplied)
Clearly, the reference in the Circular to both private and public lands
merely recognizes that the island can be classified by the Executive
department pursuant to its powers under CA No. 141. In fact, Section
5 of the Circular recognizes the then Bureau of Forest Developments
authority to declare areas in the island as alienable and disposable
when it provides:
Subsistence farming, in areas declared as alienable and disposable by
the Bureau of Forest Development.
Therefore, Proclamation No. 1801 cannot be deemed the positive act
needed to classify Boracay Island as alienable and disposable land. If
President Marcos intended to classify the island as alienable and
disposable or forest, or both, he would have identified the specific
limits of each, as President Arroyo did in Proclamation No. 1064. This
was not done in Proclamation No. 1801.
The Whereas clauses of Proclamation No. 1801 also explain the
rationale behind the declaration of Boracay Island, together with other
islands, caves and peninsulas in the Philippines, as a tourist zone and
marine reserve to be administered by the PTA to ensure the
concentrated efforts of the public and private sectors in the

development of the areas tourism potential with due regard for


ecological balance in the marine environment. Simply put, the
proclamation is aimed at administering the islands for tourism and
ecological purposes. It does not address the areas alienability.119
More importantly, Proclamation No. 1801 covers not only Boracay
Island, but sixty-four (64) other islands, coves, and peninsulas in the
Philippines, such as Fortune and Verde Islands in Batangas, Port
Galera in Oriental Mindoro, Panglao and Balicasag Islands in Bohol,
Coron Island, Puerto Princesa and surrounding areas in Palawan,
Camiguin Island in Cagayan de Oro, and Misamis Oriental, to name a
few. If the designation of Boracay Island as tourist zone makes it
alienable and disposable by virtue of Proclamation No. 1801, all the
other areas mentioned would likewise be declared wide open for
private disposition. That could not have been, and is clearly beyond,
the intent of the proclamation.
It was Proclamation No. 1064 of 2006 which positively declared
part of Boracay as alienable and opened the same to private
ownership. Sections 6 and 7 of CA No. 141120 provide that it is only
the President, upon the recommendation of the proper department
head, who has the authority to classify the lands of the public domain
into alienable or disposable, timber and mineral lands.121
In issuing Proclamation No. 1064, President Gloria MacapagalArroyo merely exercised the authority granted to her to classify lands
of the public domain, presumably subject to existing vested rights.
Classification of public lands is the exclusive prerogative of the
Executive Department, through the Office of the President. Courts
have no authority to do so.122 Absent such classification, the land
remains unclassified until released and rendered open to disposition.123
Proclamation No. 1064 classifies Boracay into 400 hectares of
reserved forest land and 628.96 hectares of agricultural land. The
Proclamation likewise provides for a 15-meter buffer zone on each

side of the center line of roads and trails, which are reserved for right
of way and which shall form part of the area reserved for forest land
protection purposes.
Contrary to private claimants argument, there was nothing invalid or
irregular, much less unconstitutional, about the classification of
Boracay Island made by the President through Proclamation No.
1064. It was within her authority to make such classification, subject
to existing vested rights.
Proclamation No. 1064 does not violate the Comprehensive
Agrarian Reform Law. Private claimants further assert that
Proclamation No. 1064 violates the provision of the Comprehensive
Agrarian Reform Law (CARL) or RA No. 6657 barring conversion of
public forests into agricultural lands. They claim that since Boracay is
a public forest under PD No. 705, President Arroyo can no longer
convert it into an agricultural land without running afoul of Section
4(a) of RA No. 6657, thus:
SEC. 4. Scope. The Comprehensive Agrarian Reform Law of 1988
shall cover, regardless of tenurial arrangement and commodity
produced, all public and private agricultural lands as provided in
Proclamation No. 131 and Executive Order No. 229, including other
lands of the public domain suitable for agriculture.
More specifically, the following lands are covered by the
Comprehensive Agrarian Reform Program:
(a) All alienable and disposable lands of the public domain devoted to
or suitable for agriculture. No reclassification of forest or mineral
lands to agricultural lands shall be undertaken after the approval of
this Act until Congress, taking into account ecological, developmental
and equity considerations, shall have determined by law, the specific
limits of the public domain.

That Boracay Island was classified as a public forest under PD No.


705 did not bar the Executive from later converting it into agricultural
land. Boracay Island still remained an unclassified land of the public
domain despite PD No. 705.
In Heirs of the Late Spouses Pedro S. Palanca and Soterranea Rafols
v. Republic,124 the Court stated that unclassified lands are public
forests.
While it is true that the land classification map does not
categorically state that the islands are public forests, the fact that
they were unclassified lands leads to the same result. In the
absence of the classification as mineral or timber land, the land
remains unclassified land until released and rendered open to
disposition.125 (Emphasis supplied)
Moreover, the prohibition under the CARL applies only to a
"reclassification" of land. If the land had never been previously
classified, as in the case of Boracay, there can be no prohibited
reclassification under the agrarian law. We agree with the opinion of
the Department of Justice126 on this point:
Indeed, the key word to the correct application of the prohibition in
Section 4(a) is the word "reclassification." Where there has been no
previous classification of public forest [referring, we repeat, to the
mass of the public domain which has not been the subject of the
present system of classification for purposes of determining which are
needed for forest purposes and which are not] into permanent forest
or forest reserves or some other forest uses under the Revised
Forestry Code, there can be no "reclassification of forest lands" to
speak of within the meaning of Section 4(a).
Thus, obviously, the prohibition in Section 4(a) of the CARL against
the reclassification of forest lands to agricultural lands without a prior
law delimiting the limits of the public domain, does not, and cannot,

apply to those lands of the public domain, denominated as "public


forest" under the Revised Forestry Code, which have not been
previously determined, or classified, as needed for forest purposes in
accordance with the provisions of the Revised Forestry Code.127
Private claimants are not entitled to apply for judicial confirmation
of imperfect title under CA No. 141. Neither do they have vested
rights over the occupied lands under the said law. There are two
requisites for judicial confirmation of imperfect or incomplete title
under CA No. 141, namely: (1) open, continuous, exclusive, and
notorious possession and occupation of the subject land by himself or
through his predecessors-in-interest under a bona fide claim of
ownership since time immemorial or from June 12, 1945; and (2) the
classification of the land as alienable and disposable land of the public
domain.128
As discussed, the Philippine Bill of 1902, Act No. 926, and
Proclamation No. 1801 did not convert portions of Boracay Island
into an agricultural land. The island remained an unclassified land of
the public domain and, applying the Regalian doctrine, is considered
State property.
Private claimants bid for judicial confirmation of imperfect title,
relying on the Philippine Bill of 1902, Act No. 926, and Proclamation
No. 1801, must fail because of the absence of the second element of
alienable and disposable land. Their entitlement to a government grant
under our present Public Land Act presupposes that the land
possessed and applied for is already alienable and disposable. This is
clear from the wording of the law itself.129Where the land is not
alienable and disposable, possession of the land, no matter how long,
cannot confer ownership or possessory rights.130
Neither may private claimants apply for judicial confirmation of
imperfect title under Proclamation No. 1064, with respect to those
lands which were classified as agricultural lands. Private claimants

failed to prove the first element of open, continuous, exclusive, and


notorious possession of their lands in Boracay since June 12, 1945.
We cannot sustain the CA and RTC conclusion in the petition for
declaratory relief that private claimants complied with the requisite
period of possession.
The tax declarations in the name of private claimants are insufficient
to prove the first element of possession. We note that the earliest of
the tax declarations in the name of private claimants were issued in
1993. Being of recent dates, the tax declarations are not sufficient to
convince this Court that the period of possession and occupation
commenced on June 12, 1945.
Private claimants insist that they have a vested right in Boracay,
having been in possession of the island for a long time. They have
invested millions of pesos in developing the island into a tourist spot.
They say their continued possession and investments give them a
vested right which cannot be unilaterally rescinded by Proclamation
No. 1064.
The continued possession and considerable investment of private
claimants do not automatically give them a vested right in Boracay.
Nor do these give them a right to apply for a title to the land they are
presently occupying. This Court is constitutionally bound to decide
cases based on the evidence presented and the laws applicable. As the
law and jurisprudence stand, private claimants are ineligible to apply
for a judicial confirmation of title over their occupied portions in
Boracay even with their continued possession and considerable
investment in the island.
One Last Note
The Court is aware that millions of pesos have been invested for the
development of Boracay Island, making it a by-word in the local and

international tourism industry. The Court also notes that for a number
of years, thousands of people have called the island their home. While
the Court commiserates with private claimants plight, We are bound
to apply the law strictly and judiciously. This is the law and it should
prevail. Ito ang batas at ito ang dapat umiral.
All is not lost, however, for private claimants. While they may not be
eligible to apply for judicial confirmation of imperfect title under
Section 48(b) of CA No. 141, as amended, this does not denote their
automatic ouster from the residential, commercial, and other areas
they possess now classified as agricultural. Neither will this mean the
loss of their substantial investments on their occupied alienable lands.
Lack of title does not necessarily mean lack of right to possess.
For one thing, those with lawful possession may claim good faith as
builders of improvements. They can take steps to preserve or protect
their possession. For another, they may look into other modes of
applying for original registration of title, such as by homestead131 or
sales patent,132 subject to the conditions imposed by law.
More realistically, Congress may enact a law to entitle private
claimants to acquire title to their occupied lots or to exempt them
from certain requirements under the present land laws. There is one
such bill133 now pending in the House of Representatives. Whether
that bill or a similar bill will become a law is for Congress to decide.
In issuing Proclamation No. 1064, the government has taken the step
necessary to open up the island to private ownership. This gesture
may not be sufficient to appease some sectors which view the
classification of the island partially into a forest reserve as absurd.
That the island is no longer overrun by trees, however, does not
becloud the vision to protect its remaining forest cover and to strike a
healthy balance between progress and ecology. Ecological
conservation is as important as economic progress.

To be sure, forest lands are fundamental to our nations survival. Their


promotion and protection are not just fancy rhetoric for politicians and
activists. These are needs that become more urgent as destruction of
our environment gets prevalent and difficult to control. As aptly
observed by Justice Conrado Sanchez in 1968 in Director of Forestry
v. Munoz:134
The view this Court takes of the cases at bar is but in adherence to
public policy that should be followed with respect to forest lands.
Many have written much, and many more have spoken, and quite
often, about the pressing need for forest preservation, conservation,
protection, development and reforestation. Not without justification.
For, forests constitute a vital segment of any country's natural
resources. It is of common knowledge by now that absence of the
necessary green cover on our lands produces a number of adverse or
ill effects of serious proportions. Without the trees, watersheds dry up;
rivers and lakes which they supply are emptied of their contents. The
fish disappear. Denuded areas become dust bowls. As waterfalls cease
to function, so will hydroelectric plants. With the rains, the fertile
topsoil is washed away; geological erosion results. With erosion come
the dreaded floods that wreak havoc and destruction to property
crops, livestock, houses, and highways not to mention precious
human lives. Indeed, the foregoing observations should be written
down in a lumbermans decalogue.135
WHEREFORE, judgment is rendered as follows:
1. The petition for certiorari in G.R. No. 167707 is GRANTED and
the Court of Appeals Decision in CA-G.R. CV No.
71118 REVERSED AND SET ASIDE.
2. The petition for certiorari in G.R. No. 173775 is DISMISSED for
lack of merit.
SO ORDERED.

RUBEN T. REYES
Associate Justice

ARTURO D. BRION
Associate Justice

REYNATO S. PUNO
Chief Justice
Chairperson

C E R T I F I C AT I O N

WE CONCUR:.

LEONARDO A.
QUISUMBING
Associate Justice

CONSUELO YNARESSANTIAGO
Associate Justice

ANTONIO T. CARPIO
Associate Justice

MA. ALICIA AUSTRIAMARTINEZ


Associate Justice

(On official leave)


RENATO C. CORONA*
Associate Justice

CONCHITA CARPIO
MORALES
Associate Justice

ADOLFO S. AZCUNA
Associate Justice

DANTE O. TINGA
Associate Justice

MINITA V. CHICONAZARIO
Associate Justice

PRESBITERO J.
VELASCO, JR.
Associate Justice

ANTONIO EDUARDO B.
NACHURA**
Associate Justice

TERESITA J.
LEONARDO-DE
CASTRO
Associate Justice

Pursuant to Section 13, Article VIII of the Constitution, I certify that


the conclusions in the above Decision had been reached in
consultation before the case was assigned to the writer of the opinion
of the Court.
REYNATO S. PUNO
Chief Justice

Footnotes
* On official leave per Special Order No. 520 dated September
19, 2008.
** No part. Justice Nachura participated in the present case as
Solicitor General.
Rollo (G.R. No. 167707), pp. 37-43. CA-G.R. CV No. 71118,
promulgated on December 9, 2004. Penned by Associate
Justice Isaias P. Dicdican, with Associate Justices Sesinando E.
Villon and Ramon M. Bato, Jr., concurring.
1

Id. at 47-54; Annex "C." Spl. Civil Case No. 5403. Penned by
Judge Niovady M. Marin, RTC, Kalibo, Branch 5.
2

Rollo (G.R. No. 173775), pp. 101-114. Annex "F." Classifying


Boracay Island Situated in the Municipality of Malay, Province
of Aklan Into Forestland (Protection Purposes) and Into
Agricultural Land (Alienable and Disposable) Pursuant to
Presidential Decreee No. 705 (Revised Forestry Reform Code
of the Philippines). Issued on May 22, 2006.
3

16

Id. at 177, 178.

17

Rollo (G.R. No. 167707), p. 54.

18

Id. at 51.

19

Id.; PTA Circular No. 3-82, Rule VIII, Sec. 1(3) states:

As of the year 2000.

Manoc-Manoc, Balabag, and Yapak.

Under Survey Plan No. NR-06-000001.

No trees in forested private lands may be cut without


prior authority from the PTA. All forested areas in
public lands are declared forest reserves.
Sec. 87. If all the lands included in the proclamation of the
President are not registered under the Land Registration Act,
the Solicitor-General, if requested to do so by the Secretary of
Agriculture and Natural Resources, shall proceed in
accordance with the provisions of section fifty-three of this
Act.
20

Rollo (G.R. No. 167707), p. 49.

Id. at 21-23; Annex "B." Declaring Certain Islands, Coves,


and Peninsulas in the Philippines as Tourist Zones and Marine
Reserves Under the Administration and Control of the
Philippine Tourism Authority.
8

Sec. 53. It shall be lawful for the Director of Lands,


whenever in the opinion of the President the public interests
shall require it, to cause to be filed in the proper Court of First
Instance, through the Solicitor General or the officer acting in
his stead, a petition against the holder, claimant, possessor, or
occupant of any land who shall not have voluntarily come in
under the provisions of this chapter or of the Land Registration
Act, stating in substance that the title of such holder, claimant,
possessor, or occupant is open to discussion; or that the
boundaries of any such land which has not been brought into
court as aforesaid are open to question; or that it is advisable
that the title to such land be settled and adjudicated, and
praying that the title to any such land or the boundaries thereof
or the right to occupancy thereof be settled and adjudicated.
The judicial proceedings under this section shall be in
21

Id. at 24-27. Rules and Regulations Governing Activities at


Boracay Island Tourist Zone.
9

10

Records, pp. 13-32; Annexes "A" to "A-18."

11

Issued on May 19, 1975.

12

Records, p. 148.

13

Id.

14

Rules of Court, Rule 129, Sec. 2.

15

Records, p. 148.

accordance with the laws on adjudication of title in cadastral


proceedings.
22

Rollo (G.R. No. 167707), p. 51.

An Act Temporarily to Provide for the Administration of the


Affairs of Civil Government in the Philippine Islands, and for
Other Purposes. Issued on July 1, 1902.
36

An Act to Amend and Compile the Laws Relative to Lands of


the Public Domain. Approved on December 1, 1936.
37

23

Id. at 211-121.

24

Id. at 42.

38

See note 8.

25

Id. at 45-46.

39

See note 3.

26

Supra note 3.

40

Constitution (1935), Art. XIII, Sec. 1.

41

Constitution (1973), Art. XIV, Sec. 10.

Owner of Waling-Waling Beach Resort and Chairman of the


Board of Boracay Foundation, Inc.
27

Bernas, S.J., The Intent of the 1986 Constitution Writers,


1995 ed., p. 830.
42

28

Owner of Willys Beach Resort.

29

Rollo (G.R. No. 173775), p. 20; Annex "A."

Petitioners in G.R. No. 173775 claim that they are also


petitioners in the declaratory case filed in November 1997
before the RTC in Kalibo, Aklan, docketed as Sp. Civil Case
No. 5403 and now before this Court as G.R. No. 167707.
30

31

Rollo (G.R No. 173775), pp. 4-5.

43

Constitution (1987), Art. XII, Sec. 3.

44

Id.

Zarate v. Director of Lands, G.R. No. 131501, July 14, 2004,


434 SCRA 322; Reyes v. Court of Appeals,356 Phil. 606, 624
(1998).
45

Chavez v. Public Estates Authority, G.R. No. 133250, July 9,


2002, 384 SCRA 152.
46

32

Id. at 4.

33

Id. at 143.

34

Rollo (G.R. No. 167707), p. 26.

35

Rollo (G.R. No. 173775), pp. 280-281.

Zarate v. Director of Lands, supra; Collado v. Court of


Appeals, G.R. No. 107764, October 4, 2002, 390 SCRA
343; Director of Lands v. Intermediate Appellate Court, G.R.
No. 73246, March 2, 1993, 219 SCRA 339.
47

Republic v. Estonilo, G.R. No. 157306, November 25, 2005,


476 SCRA 265; Zarate v. Director of Lands,supra.
48

De los Reyes v. Ramolete, G.R. No. L-47331, June 21, 1983,


122 SCRA 652, citing Gonzaga v. Court of Appeals, G.R. No.
L-27455, June 28, 1973, 51 SCRA 381.

59

Id. at 5-11.

60

See note 36.

49

Director of Forestry v. Villareal, G.R. No. L-32266, February


27, 1989, 170 SCRA 598, 601.
61

Noblejas, A.H. and Noblejas, E.H., Registration of Land


Titles and Deeds, supra note 55, at 347.

50

Collado v. Court of Appeals, supra, citing Chavez v. Public


Estates Authority, supra.

62

Id., citing separate opinion of then Justice Reynato S. Puno


in Cruz v. Secretary of Environment and Natural
Resources, G.R. No. 135385, December 6, 2000, 347 SCRA
128, and Chavez v. Public Estates Authority, supra note 46.

63

51

52

Collado v. Court of Appeals, supra note 47.

53

Effective February 13, 1894.

54

De Aldecoa v. The Insular Government, 13 Phil. 159 (1909).

A valid title based upon adverse possession or a valid title


based upon prescription. Noblejas, A.H. and Noblejas, E.H.,
Registration of Land Titles and Deeds, 1986 ed., p. 39,
citing Cruz v. De Leon, 21 Phil. 199 (1912).
55

Ten (10) years, according to Archbishop of Manila v.


Arnedo, 30 Phil. 593 (1915).
56

Noblejas, A.H. and Noblejas, E.H., Registration of Land


Titles and Deeds, supra at 8.
57

Id. at 9; Director of Forest Administration v. Fernandez, G.R.


Nos. 36827, 56622 & 70076, December 10, 1990, 192 SCRA
121, 137.
58

The provisions relevant to the definition are:


Sec. 13. That the Government of the Philippine Islands,
subject to the provisions of this Act and except as herein
provided, shall classify according to its agricultural
character and productiveness, and shall immediately
make rules and regulations for the lease, sale, or other
disposition of the public lands other than timber or
mineral lands, but such rules and regulations shall not
go into effect or have the force of law until they have
received the approval of the President, and when
approved by the President they shall be submitted by
him to Congress at the beginning of the next ensuing
session thereof and unless disapproved or amended by
Congress at said session they shall at the close of such
period have the force and effect of law in the Philippine
Islands: Provided, That a single homestead entry shall
not exceed sixteen hectares in extent.
Sec. 14. That the Government of the Philippine Islands
is hereby authorized and empowered to enact rules and
regulations and to prescribe terms and conditions to
enable persons to perfect their title to public lands in
said Islands, who, prior to the transfer of sovereignty
from Spain to the United States, had fulfilled all or some

of the conditions required by the Spanish laws and royal


decrees of the Kingdom of Spain for the acquisition of
legal title thereto, yet failed to secure conveyance of
title; and the Philippine Commission is authorized to
issue patents, without compensation, to any native of
said Islands, conveying title to any tract of land not
more than sixteen hectares in extent, which were public
lands and had been actually occupied by such native or
his ancestors prior to and on the thirteenth of August,
eighteen hundred and ninety-eight.
Sec. 15. That the Government of the Philippine Islands
is hereby authorized and empowered, on such terms as it
may prescribe, by general legislation, to provide for the
granting or sale and conveyance to actual occupants and
settlers and other citizens of said Islands such parts and
portions of the public domain, other than timber and
mineral lands, of the United States in said Islands as it
may deem wise, not exceeding sixteen hectares to any
one person and for the sale and conveyance of not more
than one thousand and twenty-four hectares to any
corporation or association of persons: Provided, That
the grant or sale of such lands, whether the purchase
price be paid at once or in partial payments, shall be
conditioned upon actual and continued occupancy,
improvement, and cultivation of the premises sold for a
period of not less than five years, during which time the
purchaser or grantee can not alienate or encumber said
land or the title thereto; but such restriction shall not
apply to transfers of rights and title of inheritance under
the laws for the distribution of the estates of decedents.
64

10 Phil. 175 (1908).

65

Id. at 182.

66

Collado v. Court of Appeals, supra note 47.

Noblejas, A.H. and Noblejas, E.H., Registration of Land


Titles and Deeds, supra note 55.
67

68

Sec. 54, par. 6.

Sec. 45(b); Public Estates Authority v. Court of Appeals, G.R.


No. 112172, November 20, 2000, 345 SCRA 96; Director of
Lands v. Buyco, G.R. No. 91189, November 27, 1992, 216
SCRA 78.
69

Collado v. Court of Appeals, supra note 47, see separate


opinion of Justice Puno in Cruz v. Secretary of Environment
and Natural Resources, supra note 51, and Chavez v. Public
Estates Authority, supra note 46.
70

71

Sec. 2.

An Act to Amend Subsection (b) of Section Forty-Eight of


Commonwealth Act Numbered One Hundred Forty-One,
Otherwise Known as the Public Land Act. Approved on June
22, 1957.
72

Extending the Period of Filing Applications for


Administrative Legislation (Free Patent) and Judicial
Confirmation of Imperfect and Incomplete Titles to Alienable
and Disposable Lands in the Public Domain Under Chapter VII
and Chapter VIII of Commonwealth Act No. 141, As
Amended, For Eleven (11) Years Commencing January 1,
1977. Approved on January 25, 1977.
73

Republic v. Doldol, G.R. No. 132963, September 10, 1998,


295 SCRA 359.
74

Discontinuance of the Spanish Mortgage System of


Registration and of the Use of Spanish Titles as Evidence in
Land Registration Proceedings (Issued February 16, 1976).
75

Republic of the Philippines v. Muoz, G.R. No. 151910,


October 15, 2007.
85

Heirs of the Late Spouses Pedro S. Palanca and Soterranea


Rafols Vda. De Palanca v. Republic, supra;Gutierrez
Hermanos v. Court of Appeals, G.R. Nos. 54472-77,
September 28, 1989, 178 SCRA 37.
86

Director of Forest Administration v. Fernandez, supra note


58, citing Director of Lands v. Rivas, G.R. No. L-61539,
February 14, 1986, 141 SCRA 329.
76

77

Lands which were not recorded under the Maura Law and
were not yet covered by Torrens titles.

87

Presidential Decree No. 1529, Preamble; Director of Lands v.


Intermediate Appellate Court, supra note 47.

88

40 Phil. 10 (1919).

89

Supra note 54.

90

Ankron v. Government of the Philippine Islands, supra at 16.

78

Pea, N. and Pea, Jr., N., Registration of Land Titles and


Deeds, 1988 ed., p. 9.

Republic v. Naguiat, G.R. No. 134209, January 24, 2006, 479


SCRA 585.

79

Republic v. Court of Appeals, G.R. No. 48227, August 21,


1991, 201 SCRA 1; Director of Lands v. Court of
Appeals, G.R. No. 83609, October 26, 1989, 178 SCRA 708.
80

Heirs of the Late Spouses Pedro S. Palanca and Soterranea


Rafols Vda. De Palanca v. Republic, G.R. No. 151312, August
30, 2006, 500 SCRA 209; Director of Lands v. Intermediate
Appellate Court, supra note 47, citing Director of Lands v.
Aquino, G.R. No. 31688, December 17, 1990, 192 SCRA 296.

Heirs of the Late Spouses Pedro S. Palanca and Soterranea


Rafols Vda. De Palanca v. Republic, supra note 81.
91

92

Id. at 76.

93

Id. at 219-223.

81

82

Chavez v. Public Estates Authority, supra note 46.

Ankron v. Government of the Philippine Islands, supra note


88, at 16.
94

95

Id. at 15-16.

Act No. 2874, Sec. 8; Republic v. Court of Appeals, G.R. No.


155450, August 6, 2008; Republic v. Court of Appeals, G.R.
No. 127245, January 30, 2001.

83

Republic v. Lao, G.R. No. 150413, July 1, 2003; 405 SCRA


291; Director of Lands v. Intermediate Appellate Court, supra
note 47, citing Director of Lands v. Aquino, supra.

96

Republic v. Lao, supra; Pagkatipunan v. Court of


Appeals, 429 Phil. 377, 389-390 (2002).

96-a

84

Bureau of Forestry v. Court of Appeals, G.R. No. L-37995,


August 31, 1987, 153 SCRA 351, 357.

Heirs of the Late Spouses Pedro S. Palanca and Soterranea


Rafols Vda. De Palanca v. Republic, supra note 81.

and notorious possession and occupation of agricultural


public lands, as defined by said Act of Congress of July
first, nineteen hundred and two, under a bona fide claim
of ownership except as against the Government, for a
period of ten years next preceding the taking effect of
this act, except when prevented by war, or force
majeure, shall be conclusively presumed to have
performed all the conditions essential to a Government
grant and to have received the same, and shall be
entitled to a certificate of title to such land under the
provisions of this chapter.

97

The records do not show the manner in which title was issued
to the Heirs of Ciriaco Tirol.
98

Records, p. 179.

99

100

79 Phil. 461 (1947).

101

Supra note 64.

102

Supra note 54.

107

103

Supra note 88.

107-a

104

Art. XIII, Sec. 1.

108

Collado v. Court of Appeals, id. at 356.

109

Records, p. 101; Annex "A."

110

Id. at 106; Exhibit "1-a."

111

Rollo (G.R. No. 173775), p. 5.

Krivenko v. Register of Deeds of Manila, supra note 100, at


468-469.
105

106

Act No. 926, Sec. 54, par. 6 states:


SEC. 54. The following described persons or their legal
successors in right, occupying lands in the Philippines,
or claiming to own any such land or interest therein but
whose titles to such land have not been perfected may
apply to the Court of Land Registration of the Philippine
Islands for confirmation of their claims and the issuance
of a certificate of title therefor to wit

G.R. No. 135385, December 6, 2000, 347 SCRA 128.

Constitution (1987), Art. XII, Sec. 3; Constitution (1973),


Art. XIV, Sec. 10, as amended; and Constitution (1935), Art.
XIII, Sec. 1.
112

113

Republic v. Naguiat, supra note 87.

114

G.R. No. L-27873, November 29, 1983, 126 SCRA 69.

115

Heirs of Amunategui v. Director of Forestry, id. at 75.

xxxx
(6) All persons who by themselves or their predecessors
in interest have been in the open, continuous exclusive,

Supra note 47.

Republic v. Court of Appeals, G.R. No. L-56948, September


30, 1987, 154 SCRA 476, 482-483.

President, upon recommendation by the Secretary of


Agriculture and Commerce (now the Secretary of the
Department of Environment and Natural Resources),
shall from time to time declare what lands are open to
disposition or concession under this Act.

116

117

Sec. 3 provides:

Establishment of or low-density human settlements in private


lands, or subdivisions, if any, subject to prior approval by the
Ministry of Human Settlements, PTA and local building
officials; Provided, that no structures shall be constructed
within 30 meters from the shorelines.

Director of Lands v. Intermediate Appellate Court, supra


note 47; Manalo v. Intermediate Appellate Court, G.R. No.
64753, April 26, 1989, 172 SCRA 795.
121

Republic v. Register of Deeds of Quezon, G.R. No. 73974,


May 31, 1995, 244 SCRA 537; Director of Lands v.
Intermediate Appellate Court, supra note 47.
122

118

Sec. 5 states:

Subsistence farming, in areas declared as alienable and


disposable by the Bureau of Forest Development.
119

Pars. 3-4.

SEC. 6. The President, upon recommendation of the


Secretary of Agriculture and Commerce (now the Secretary of
the Department of Environment and Natural Resources), shall
from time to time classify lands of the public domain into
120

Director of Lands v. Intermediate Appellate Court, supra


note 47, citing Yngson v. Secretary of Agriculture and Natural
Resources, G.R. No. L-36847, July 20, 1983, 123 SCRA
441; Republic v. Court of Appeals, G.R. No. L-45202,
September 11, 1980, 99 SCRA 742.
123

124

Supra note 81.

Heirs of the Late Spouses Pedro S. Palanca and Soterranea


Rafols Vda. De Palanca v. Republic, id. at 222-223.
125

(a) Alienable or disposable,


(b) Timber, and
(c) Mineral lands,
And may at any time and in a like manner transfer such
lands from one class to another, for the purposes of their
administration and disposition.

Reconsideration of DOJ Opinion No. 169, s. 1993, on the


DOJ affirmative stand on whether the prohibition against the
reclassification of forest lands applies to "unclassified public
forest."
126

127

Del Rosario-Igtiben v. Republic, G.R. No. 158449, October


22, 2004, 441 SCRA 188; Republic v. Lao,supra note 83.
128

SEC. 7. For the purposes of administration and


disposition of alienable or disposable public lands, the

Rollo (G.R. No. 173775), p. 139.

129

Public Land Act, Sec. 48(b).

130

Public Estates Authority v. Court of Appeals, supra note 69.

131

Commonwealth Act No. 141, Chapter IV.

132

Id., Chapter V.

House Bill No. 1109. Declaring Certain Parcels of the Public


Domain Within Boracay Island, Malay, Aklan as Agricultural
Land Open to Disposition.

CORNELIO RAMOS, petitioner-appellant,


vs.
THE DIRECTOR OF LANDS, objector-appellee.
Basilio Aromin for appellant.
Office of the Solicitor-General Paredes for appellee.

133

G.R. No. L-24796, June 28, 1968, 23 SCRA 1183, cited


in Lepanto Consolidated Mining Company v. Dumyung, G.R.
Nos. L-31666-68, April 30, 1979, 89 SCRA 532.
134

135

Director of Forestry v. Muoz, id. at 1214.

MALCOLM, J.:
This is an appeal by the applicant and appellant from a judgment of
the Court of First Instance of Nueva Ecija, denying the registration of
the larger portion of parcel No. 1 (Exhibit A of the petitioner), marked
by the letters A, B, and C on the plan, Exhibit 1, of the Government.
One Restituto Romero y Ponce apparently gained possession of a
considerable tract of land located in the municipality of San Jose,
Province of Nueva Ecija, in the year 1882. He took advantage of the
Royal Decree of February 13, 1894, to obtain a possessory
information title to the land, registered as such on February 8, 1896.
Parcel No. 1, included within the limits of the possessory information
title of Restituto Romero, was sold in February, 1907, to Cornelio
Ramos, the instant petitioner, and his wife Ambrosia Salamanca.

Republic of the Philippines


SUPREME COURT
Manila
EN BANC
G.R. No. L-13298

November 19, 1918

Ramos instituted appropriate proceedings to have his title registered.


Opposition was entered by the Director of Lands on the ground that
Ramos had not acquired a good title from the Spanish government
and by the Director of Forestry on the ground that the first parcel was
forest land. The trial court agreed with the objectors and excluded
parcel No. 1 from registration. So much for the facts.

As to the law, the principal argument of the Solicitor-General is based


on the provisions of the Spanish Mortgage Law and of the Royal
Decree of February 13, 1894, commonly known as the Maura Law.
The Solicitor-General would emphasize that for land to come under
the protective gis of the Maura Law, it must have been shown that
the land was cultivated for six years previously, and that it was not
land which pertained to the "zonas forestales." As proof that the land
was, even as long ago as the years 1894 to 1896, forestal and not
agricultural in nature is the fact that there are yet found thereon trees
from 50 to 80 years of age.
We do not stop to decide this contention, although it might be
possible, following the doctrine laid down by the United States
Supreme Court with reference to Mexican and Spanish grantes within
the United States, where some recital is claimed to be false, to say that
the possessory information, apparently having taken cognizance of the
requisites for title, should not now be disturbed.
(Hancock vs. McKinney [1851], 7 Tex., 192; Hornsby and
Rolandvs. United States [1869], 10 Wall., 224.) It is sufficient, as will
later appear, merely to notice that the predecessor in interest to the
petitioner at least held this tract of land under color of title.
Subsection 6 of section 54, of Act No. 926, entitled The Public Land
Law, as amended by Act No. 1908, reads as follows:
6. All persons who by themselves or their predecessors and
interest have been in the open, continuous, exclusive, and
notorious possession and occupation of agricultural public
lands, as defined by said Act of Congress of July first, nineteen
hundred and two, under a bona fide claim of ownership except
as against the Government, for a period of ten years next

preceding the twenty-sixth day of July, nineteen hundred and


four, except when prevented by war or force majeure, shall be
conclusively presumed to have performed all the conditions
essential to a government grant and to have received the same,
and shall be entitled to a certificate of title to such land under
the provisions of this chapter.
There are two parts to the above quoted subsection which must be
discussed. The first relates to the open, continuous, exclusive, and
notorious possession and occupation of what, for present purposes,
can be conceded to be agricultural public land, under a bona fide
claim of ownership.
Actual possession of land consists in the manifestation of acts of
dominion over it of such a nature as a party would naturally exercise
over his own property. Relative to actuality of possession, it is
admitted that the petitioner has cultivated only about one fourth of the
entire tract. This is graphically portrayed by Exhibit 1 of the
Government, following:

actually in possession of the claimant. It is here only necessary to


apply the general rule.
The claimant has color of title; he acted in good faith; and he has had
open, peaceable, and notorious possession of a portion of the property,
sufficient to apprise the community and the world that the land was
for his enjoyment. (See arts. 446, 448, Civil Code.) Possession in the
eyes of the law does not mean that a man has to have his feet on every
square meter of ground before it can be said that he is in possession.
Ramos and his predecessor in interest fulfilled the requirements of the
law on the supposition that he premises consisted of agricultural
public land.

The question at once arises: Is that actual occupancy of a part of the


land described in the instrument giving color of title sufficient to give
title to the entire tract of land?
lawphil.net

The doctrine of constructive possession indicates the answer. The


general rule is that the possession and cultivation of a portion of a
tract under claim of ownership of all is a constructive possession of
all, if the remainder is not in the adverse possession of another.
(Barr vs. Gratz's Heirs [1819], 4 Wheat., 213; Ellicott vs. Pearl [1836],
10 Pet., 412; Smith vs. Gale [1892], 144 U. S., 509.) Of course, there
are a number of qualifications to the rule, one particularly relating to
the size of the tract in controversy with reference to the portion

The second division of the law requires consideration of the term


"agricultural public land." The law affirms that the phrase is denied by
the Act of Congress of July 1st, 1902, known as the Philippine bill.
Turning to the Philippine Bill, we find in sections 13 to 18 thereof that
three classes of land are mentioned. The first is variously denominated
"public land" or "public domain," the second "mineral land," and the
third "timber land." Section 18 of the Act of Congress comes nearest
to a precise definition, when it makes the determination of whether
the land is more valuable for agricultural or for forest uses the test of
its character.
Although these sections of the Philippine Bill have come before the
courts on numerous occasions, what was said in the case of
Jones vs. Insular Government ([1906], 6 Phil., 122), is still true,
namely: "The meaning of these sections is not clear and it is difficult
to give to them a construction that will be entirely free from
objection." In the case which gave most serious consideration to the
subject (Mapa vs. Insular Government [1908], 10 Phil., 175), it was

found that there does exist in the Act of Congress a definition of the
phrase "agricultural public lands." It was said that the phrase
"agricultural public lands" as used in Act No. 926 means "those public
lands acquired from Spain which are not timber or mineral lands."
The idea would appear to be to determine, by exclusion, if the land is
forestal or mineral in nature and, if not so found, to consider it to be
agricultural land. Here, again, Philippine law is not very helpful. For
instance, section 1820 of the Administrative Code of 1917 provides:
"For the purposes of this chapter, 'public forest' includes, except as
otherwise specially indicated, all unreserved public land, including
nipa and mangrove swamps, and all forest reserves of whatever
character." This definition of "public forest," it will be noted, is
merely "for the purposes of this chapter." A little further on, section
1827 provides: "Lands in public forests, not including forest reserves,
upon the certification of the Director of Forestry that said lands are
better adapted and more valuable for agricultural than for forest
purposes and not required by the public interests to be kept under
forest, shall be declared by the Department Head to be agricultural
lands." With reference to the last section, there is no certification of
the Director of Forestry in the record, as to whether this land is better
adapted and more valuable for agricultural than for forest purposes.
The lexicographers define "forest" as "a large tract of land covered
with a natural growth of trees and underbrush; a large wood." The
authorities say that he word "forest" has a significant, not an
insignificant meaning, and that it does not embrace land only partly
woodland. It is a tract of land covered with trees, usually of
considerable extent. (Higgins vs. Long Island R. Co. [1908], 114 N. Y.
Supp., 262; People vs. Long Island R. Co. [1908], 110 N. Y. Supp.,
512.)

The foresters say that no legal definition of "forest" is practicable or


useful. B. H. Baden-Powell, in his work on Forest Law of India, states
as follows:
Every definition of a forest that can be framed for legal
purposes will be found either to exclude some cases to which
the law ought to apply, or on the other hand, to include some
with which the law ought not to interfere. It may be necessary,
for example, to take under the law a tract of perfectly barren
land which at present has neither trees, brushwood, nor grass
on it, but which in the course f time it is hoped will be
"reboise;" but any definition wide enough to take in all such
lands, would also take in much that was not wanted. On the
other hand, the definition, if framed with reference to treegrowth, might (and indeed would be almost sure to) include a
garden, shrubbery, orchard, or vineyard, which it was not
designed to deal with.
B. E. Fernow, in his work on the Economics of Forestry, states as
follows:
A forest in the sense in which we use the term, as an economic
factor, is by no means a mere collection of trees, but an organic
whole in which all parts, although apparently heterogeneous,
jumbled together by accident as it were and apparently
unrelated, bear a close relation to each other and are as
interdependent as any other beings and conditions in nature.
The Director of Forestry of the Philippine Islands has said:

During the time of the passage of the Act of Congress of July


1, 1902, this question of forest and agricultural lands was
beginning to receive some attention and it is clearly shown in
section 18 of the above mentioned Act; it leaves to the Bureau
of Forestry the certification as to what lands are for agricultural
or forest uses. Although the Act states timber lands, the Bureau
has in its administration since the passage of this act construed
this term to mean forest lands in the sense of what was
necessary to protect, for the public good; waste lands without a
tree have been declared more suitable for forestry in many
instances in the past. The term 'timber' as used in England and
in the United States in the past has been applied to wood
suitable for construction purposes but with the increase in
civilization and the application of new methods every plant
producing wood has some useful purpose and the term timber
lands is generally though of as synonymous with forest lands
or lands producing wood, or able to produce wood, if
agricultural crops on the same land will not bring the financial
return that timber will or if the same land is needed for
protection purposes.
xxx

xxx

xxx

The laws in the United States recognize the necessity of


technical advice of duly appointed boards and leave it in the
hands of these boards to decide what lands are more valuable
for forestry purposes or for agricultural purposes.
In the Philippine Islands this policy is follows to as great an
extent as allowable under the law. In many cases, in the
opinion of the Bureau of Forestry, lands without a single tree

on them are considered as true forest land. For instance,


mountain sides which are too steep for cultivation under
ordinary practice and which, if cultivated, under ordinary
practice would destroy the big natural resource of the soil, by
washing, is considered by this bureau as forest land and in time
would be reforested. Of course, examples exist in the Mountain
Province where steep hillsides have been terraced and intensive
cultivation practiced but even then the mountain people are
very careful not to destroy forests or other vegetative cover
which they from experience have found protect their water
supply. Certain chiefs have lodged protests with the
Government against other tribes on the opposite side of the
mountain cultivated by them, in order to prevent other tribes
from cutting timber or destroy cover guarding their source of
water for irrigation.
Dr. M. S. Shaler, formerly Dean of the Lawrence Scientific
School, remarked that if mankind could not devise and enforce
ways dealing with the earth, which will preserve this source of
like "we must look forward to the time, remote it may be, yet
equally discernible, when out kin having wasted its great
inheritance will fade from the earth because of the ruin it has
accomplished."
The method employed by the bureau of Forestry in making
inspection of lands, in order to determine whether they are
more adapted for agricultural or forest purposes by a technical
and duly trained personnel on the different phases of the
conservation of natural resources, is based upon a previously
prepared set of questions in which the different characters of
the land under inspection are discussed, namely:

Slope of land: Level; moderate; steep; very steep.


Exposure: North; South; East; West.
Soil: Clay; sandy loam; sand; rocky; very rocky.
Character of soil cover: Cultivated, grass land, brush land,
brush land and timber mixed, dense forest.
If cultivated, state crops being grown and approximate number
of hectares under cultivation. (Indicate on sketch.)
For growth of what agricultural products is this land suitable?
State what portion of the tract is wooded, name of important
timber species and estimate of stand in cubic meters per
hectare, diameter and percentage of each species.
If the land is covered with timber, state whether there is public
land suitable for agriculture in vicinity, which is not covered
with timber.
Is this land more valuable for agricultural than for forest
purposes? (State reasons in full.)
Is this land included or adjoining any proposed or established
forest reserve or communal forest? Description and ownership
of improvements.
If the land is claimed under private ownership, give the name
of the claimant, his place of residence, and state briefly (if

necessary on a separate sheet) the grounds upon which he


bases his claim.
When the inspection is made on a parcel of public land which
has been applied for, the corresponding certificate is forwarded
to the Director of Lands; if it is made on a privately claimed
parcel for which the issuance of a title is requested from the
Court of Land Registration, and the inspection shows the land
to be more adapted for forest purposes, then the Director of
Forestry requests the Attorney-General to file an opposition,
sending him all data collected during the inspection and
offering him the forest officer as a witness.
It should be kept in mind that the lack of personnel of this
Bureau, the limited time intervening between the notice for the
trial on an expediente of land and the day of the trial, and the
difficulties in communications as well as the distance of the
land in question greatly hinder the handling of this work.
In the case of lands claimed as private property, the Director of
Forestry, by means of his delegate the examining officer,
submits before the court all evidence referring to the present
forest condition of the land, so that the court may compare
them with the alleged right by the claimant. Undoubtedly,
when the claimant presents a title issued by the proper
authority or evidence of his right to the land showing that he
complied with the requirements of the law, the forest certificate
does not affect him in the least as such land should not be
considered as a part of the public domain; but when the alleged
right is merely that of possession, then the public or private
character of the parcel is open to discussion and this character

should be established not simply on the alleged right of the


claimant but on the sylvical condition and soil characteristics
of the land, and by comparison between this area, or different
previously occupied areas, and those areas which still preserve
their primitive character.
Either way we look at this question we encounter difficulty.
Indubitably, there should be conservation of the natural resources of
the Philippines. The prodigality of the spendthrift who squanders his
substance for the pleasure of the fleeting moment must be restrained
for the less spectacular but surer policy which protects Nature's wealth
for future generations. Such is the wise stand of our Government as
represented by the Director of Forestry who, with the Forester for the
Government of the United States, believes in "the control of nature's
powers by man for his own good." On the other hand, the
presumption should be, in lieu of contrary proof, that land is
agricultural in nature. One very apparent reason is that it is for the
good of the Philippine Islands to have the large public domain come
under private ownership. Such is the natural attitude of the sagacious
citizen.
If in this instance, we give judicial sanction to a private claim, let it be
noted that the Government, in the long run of cases, has its remedy.
Forest reserves of public land can be established as provided by law.
When the claim of the citizen and the claim of the Government as to a
particular piece of property collide, if the Government desires to
demonstrate that the land is in reality a forest, the Director of Forestry
should submit to the court convincing proof that the land is not more
valuable for agricultural than for forest purposes. Great consideration,
it may be stated, should, and undoubtedly will be, paid by the courts
to the opinion of the technical expert who speaks with authority on

forestry matters. But a mere formal opposition on the part of the


Attorney-General for the Director of Forestry, unsupported by
satisfactory evidence will not stop the courts from giving title to the
claimant.
We hold that the petitioner and appellant has proved a title to the
entire tract of land for which he asked registration, under the
provisions of subsection 6, of section 54, of Act No. 926, as amended
by Act No. 1908, with reference to the Philippine Bill and the Royal
Decree of February 13, 1894, and his possessory information.
Judgment is reversed and the lower court shall register in the name of
the applicant the entire tract in parcel No. 1, as described in plan
Exhibit A, without special finding as to costs. So ordered.
Arellano, C.J., Torres, Johnson, Street and Fisher, JJ., concur.

Republic of the Philippines


SUPREME COURT
Manila
EN BANC
G.R. No. L-14213

August 23, 1919

J. H. ANKRON, petitioner-appellee,
vs.
THE GOVERNMENT OF THE PHILIPPINE
ISLANDS, objector-appellant.
Assistant Attorney-General Lacson for appellant.
P. J. Moore for appellee.
JOHNSON, J.:
This action was commenced in the Court of First Instance of the
Province of Davao, Department of Mindanao and Sulu. Its purpose
was to have registered, under the Torrens system, a certain piece or
parcel of land situated, bounded and particularly described in the plan
and technical description attached to the complaint and made a part
thereof.
The only opposition which was presented was on the part of the
Director of Lands. The oppositor [objector] alleged that the land in
question was the property of the Government of the United States
under the control and administration of the Government of the
Philippine Islands.

During the trial of the cause two witnesses only were presented by the
petitioner. No proof whatever was offered by the oppositor. After
hearing and considering the evidence, the Honorable Francisco
Soriano, judge, reached the following conclusions of fact:
1. That the land sought to be registered consists of one parcel of land
as marked and indicated on the plan and technical description
presented;
2. That all of said land, with the exception of a small part at the north,
the exact description and extension of which does not appear, has
been cultivated and planted for more than forty-four years prior to the
date of this decision;
3. That said land was formerly occupied, cultivated and planted by
Moros, Mansacas and others, under a claim of ownership, and that
they lived thereon and had their houses thereon, and that portion of
the land which was not planted or cultivated was used as pasture land
whereon they pastured their carabaos, cattle, and horses;
4. That all of said Moros and Mansacas sold, transferred and
conveyed all their right, title and interest in said land to the applicant,
J. H. Ankron, some eleven years past, at which time all of the said
former owners moved o n to adjoining lands where they now reside;
5. That the possession under claim of ownership of the applicant and
his predecessors in interest was shown to have been open, notorious,
actual, public and continuous for more than forty-four years past, and
that their claim was exclusive of any other right adverse to all other
claims;

6. That the applicant now has some one hundred fifty (150) hills of
hemp, some eight thousand (8,000) cocoanut trees, a dwelling house,
various laborers' quarters, store-building, large camarin (storehouse of
wood, a galvanized iron and other buildings and improvements on
said land.
Upon the foregoing facts the lower court ordered and decreed that
said parcel of land be registered in the name of the said applicant, J.
H. Ankron, subject, however, to the right of the Government of the
Philippine Islands to open a road thereon in the manner and
conditions mentioned in said decision. The conditions mentioned with
reference to the opening of the road, as found in said decision, are that
the applicant give his consent, which he has already done, to the
opening of said road which should be fifteen (15) meters wide and
should follow approximately the line of the road as it now exists
subject to the subsequent survey to be made by the engineer of the
province of Davao.
From that decree the Director of Lands appealed to this court.
The appellant argues, first, that the applicant did not sufficiently
identify the land in question. In reply to that argument, the record
shows that a detained and technical description of the land was made
a part of the record. The evidence shows that the boundaries of the
land in question were marked by monuments built of cement.
Theoppositor neither presented the question of the failure of proper
identification of the land in the lower court nor presented any proof
whatever to show that said cement monuments did not exist.
The appellant, in his second assignment of error, contends that the
appellant failed to prove his possession and occupation in accordance

with the provisions of paragraph 6 of section 54 of Act No. 926. The


important prerequisites for registration of land imposed by said
section 54, paragraph 6, are (a) that the land shall beagricultural
public land as defined by the Act of Congress of July 1, 1902; (b) that
the petitioner, by himself or his predecessors in interest, shall have
been in the open, continuous, exclusive and notorious possession and
occupation of the same under a bona fide claim of ownership for a
period of ten years next preceding the taking effect of said Act.
In the present case the applicant proved, and there was no effort to
dispute said proof, that the land in question was agricultural land and
that he and his predecessors in interest had occupied the same as
owners in good faith for a period of more than forty years prior to the
commencement of the present action. No question is raised nor
discussed by the appellant with reference to the right of the Moros to
acquire the absolute ownership and dominion of the land which they
have occupied openly, notoriously, peacefully and adversely for a long
period of years. (Cario vs. Insular Government, 7 Phil. Rep., 132
[212 U. S., 449].)
Accepting the undisputed proof, we are of the opinion that said
paragraph 6 of section 54 of Act No. 926 has been fully complied with
and that the petitioner, so far as the second assignment of error is
concerned, is entitled to have his land registered under the Torrens
system.
Under the third assignment of error the appellant contends that
portions of said land cannot be registered in accordance with the
existing Land Registration Law for the reason that they are manglares.
That question is not discussed in the present brief. The appellant,
however., refers the court to his discussion of that question in the case

of Jocson vs. Director of Forestry (39 Phil. Rep., 560). By reference


to the argument in the brief in the case, it is found that the appellant
relied upon the provisions of section 3 of Act No. 1148 in relation
with section 1820 of Act No. 2711 (second Administrative Code).
Section 3 of Act No. 1148 provides that "the public forests shall
include all unreserved lands covered with trees of whatever age." Said
section 1820 (Act No. 2711) provides that "for the purpose of this
chapter 'public forest' includes, except as otherwise specially
indicated, all unreserved public land, including nipa and mangrove
swamps, and all forest reserves of whatever character."
In the case of Mapa vs. Insular Government (10 Phil. Rep., 175),
which decision has been follows in numerous other decision, the
phrase "agricultural public lands" as defined by Act of Congress of
July 1, 1902, was held to mean "those public lands acquired from
Spain which are neither mineral nor timber lands" (forestry lands).
Paragraph 6 of section 54 of Act No. 926 only permits the registration,
under the conditions therein mentioned, of "public agricultural lands."
It must follow, therefore, that the moment that it appears that the land
is not agricultural, the petition for registration must be denied. If the
evidence shows that it is public forestry land or public mineral land,
the petition for registration must be denied. Many definitions have
been given for "agricultural," "forestry," and "mineral" lands. These
definitions are valuable so far as they establish general rules. In this
relation we think the executive department of the Government,
through the Bureau of Forestry, may, and should, in view especially of
the provisions of section 4, 8, and 20 of Act No. 1148, define what
shall be considered forestry lands, to the end that the people of the
Philippine Islands shall be guaranteed in "the future a continued
supply of valuable timber and other forest products." (Sec. 8, Act No.

1148.) If the Bureau of Forestry should accurately and definitely


define what lands are forestry, occupants in the future would be
greatly assisted in their proof and the courts would be greatly aided in
determining the question whether the particular land is forestry or
other class of lands.
In the case of Jocson vs. Director of Forestry (supra), the AttorneyGeneral admitted in effect that whether the particular land in question
belongs to one class or another is a question of fact. The mere fact that
a tract of land has trees upon it or has mineral within it is not of itself
sufficient to declare that one is forestry land and the other, mineral
land. There must be some proof of the extent and present or future
value of the forestry and of the minerals. While, as we have just said,
many definitions have been given for "agriculture," "forestry," and
"mineral" lands, and that in each case it is a question of fact, we think
it is safe to say that in order to be forestry or mineral land the proof
must show that it is more valuable for the forestry or the
mineral which it contains than it is for agricultural purposes. (Sec. 7,
Act No. 1148.) It is not sufficient to show that there exists some trees
upon the land or that it bears some mineral. Land may be classified as
forestry or mineral today, and, by reason of the exhaustion of the
timber or mineral, be classified as agricultural land tomorrow. And
vice-versa, by reason of the rapid growth of timber or the discovery of
valuable minerals, lands classified as agricultural today may be
differently classified tomorrow. Each case must be decided upon the
proof in that particular case, having regard for its present or future
value for one or the other purposes. We believe, however, considering
the fact that it is a matter of public knowledge that a majority of the
lands in the Philippine Islands are agricultural lands, that the courts
have a right to presume, in the absence of evidence to the contrary,

that in each case the lands are agricultural lands until the contrary is
shown. Whatever the land involved in a particular land registration
case is forestry or mineral land must, therefore, be a matter of proof.
Its superior value for one purpose or the other is a question of fact to
be settled by the proof in each particular case. The fact that the land is
a manglar [mangrove swamp] is not sufficient for the courts to decide
whether it is agricultural, forestry, or mineral land. It may perchance
belong to one or the other of said classes of land. The Government, in
the first instance, under the provisions of Act No. 1148, may, by
reservation, decide for itself what portions of public land shall be
considered forestry land, unless private interests have intervened
before such reservation is made. In the latter case, whether the land is
agricultural, forestry, or mineral, is a question of proof. Until private
interests have intervened, the Government, by virtue of the terms of
said Act (No. 1148), may decide for itself what portions of the "public
domain" shall be set aside and reserved as forestry or mineral land.
(Ramos vs. Director of Lands (39 Phil. Rep., 175; Jocson vs. Director
of Forestry, supra.)
In view of the foregoing we are of the opinion, and so order and
decree, that the judgment of the lower court should be and is hereby
affirmed, with the condition that before the final certificate is issued,
an accurate survey be made of the lands to be occupied by the road
above mentioned and that a plan of the same be attached to the
original plan upon which the petition herein is based. It is so ordered,
with costs.

Republic of the Philippines


SUPREME COURT
Manila

Arellano, C.J., Torres, Araullo, Street, Malcolm and Moir, JJ., concur.

EN BANC
G.R. No. 135385

December 6, 2000

ISAGANI CRUZ and CESAR EUROPA, petitioners,


vs.
SECRETARY OF ENVIRONMENT AND NATURAL
RESOURCES, SECRETARY OF BUDGET AND
MANAGEMENT and CHAIRMAN and COMMISSIONERS OF
THE NATIONAL COMMISSION ON INDIGENOUS
PEOPLES, respondents.
HON. JUAN M .FLAVIER, HON. PONCIANO BENNAGEN,
BAYANI ASCARRAGA, EDTAMI MANSAYANGAN, BASILIO
WANDAG, EVELYN DUNUAN, YAOM TUGAS, ALFREMO
CARPIANO, LIBERATO A. GABIN, MATERNIDAD M.
COLAS, NARCISA M. DALUPINES, BAI KIRAM-CONNIE
SATURNO, BAE MLOMO-BEATRIZ T. ABASALA, DATU
BALITUNGTUNG-ANTONIO D. LUMANDONG, DATU
MANTUMUKAW TEOFISTO SABASALES, DATU
EDUAARDO BANDA, DATU JOEL UNAD, DATU RAMON
BAYAAN, TIMUAY JOSE ANOY, TIMUAY MACARIO D.
SALACAO, TIMUAY EDWIN B. ENDING, DATU
SAHAMPONG MALANAW VI, DATU BEN PENDAO
CABIGON, BAI NANAPNAY-LIZA SAWAY, BAY INAY DAYAMELINDA S. REYMUNDO, BAI TINANGHAGA HELINITA T.
PANGAN, DATU MAKAPUKAW ADOLINO L. SAWAY, DATU
MAUDAYAW-CRISPEN SAWAY, VICKY MAKAY, LOURDES
D. AMOS, GILBERT P. HOGGANG, TERESA GASPAR,
MANUEL S. ONALAN, MIA GRACE L. GIRON, ROSEMARIE
G. PE, BENITO CARINO, JOSEPH JUDE CARANTES,
LYNETTE CARANTES-VIVAL, LANGLEY SEGUNDO,
SATUR S. BUGNAY, CARLING DOMULOT, ANDRES
MENDIOGRIN, LEOPOLDO ABUGAN, VIRGILIO
CAYETANO, CONCHITA G. DESCAGA, LEVY ESTEVES,
ODETTE G. ESTEVEZ, RODOLFO C. AGUILAR, MAURO
VALONES, PEPE H. ATONG, OFELIA T. DAVI, PERFECTO B.
GUINOSAO, WALTER N. TIMOL, MANUEL T. SELEN,
OSCAR DALUNHAY, RICO O. SULATAN, RAFFY MALINDA,
ALFREDO ABILLANOS, JESSIE ANDILAB, MIRLANDO H.

MANGKULINTAS, SAMIE SATURNO, ROMEO A.


LINDAHAY, ROEL S. MANSANG-CAGAN, PAQUITO S.
LIESES, FILIPE G. SAWAY, HERMINIA S. SAWAY, JULIUS S.
SAWAY, LEONARDA SAWAY, JIMMY UGYUB, SALVADOR
TIONGSON, VENANCIO APANG, MADION MALID, SUKIM
MALID, NENENG MALID, MANGKATADONG AUGUSTO
DIANO, JOSEPHINE M. ALBESO, MORENO MALID, MARIO
MANGCAL, FELAY DIAMILING, SALOME P. SARZA,
FELIPE P. BAGON, SAMMY SALNUNGAN, ANTONIO D.
EMBA, NORMA MAPANSAGONOS, ROMEO SALIGA, SR.,
JERSON P. GERADA, RENATO T. BAGON, JR., SARING
MASALONG, SOLEDAD M. GERARDA, ELIZABETH L.
MENDI, MORANTE S. TIWAN, DANILO M. MALUDAO,
MINORS MARICEL MALID, represented by her father
CORNELIO MALID, MARCELINO M. LADRA, represented by
her father MONICO D. LADRA, JENNYLYN MALID,
represented by her father TONY MALID, ARIEL M.
EVANGELISTA, represented by her mother LINAY
BALBUENA, EDWARD M. EMUY, SR., SUSAN BOLANIO,
OND, PULA BATO B'LAAN TRIBAL FARMER'S
ASSOCIATION, INTER-PEOPLE'S EXCHANGE, INC. and
GREEN FORUM-WESTERN VISAYAS, intervenors.
COMMISSION ON HUMAN RIGHTS, intervenor.
IKALAHAN INDIGENOUS PEOPLE and HARIBON
FOUNDATION FOR THE CONSERVATION OF NATURAL
RESOURCES, INC., intervenor.
RESOLUTION
PER CURIAM:
Petitioners Isagani Cruz and Cesar Europa brought this suit for
prohibition and mandamus as citizens and taxpayers, assailing the
constitutionality of certain provisions of Republic Act No. 8371 (R.A.
8371), otherwise known as the Indigenous Peoples Rights Act of 1997

(IPRA), and its Implementing Rules and Regulations (Implementing


Rules).
In its resolution of September 29, 1998, the Court required
respondents to comment.1 In compliance, respondents Chairperson
and Commissioners of the National Commission on Indigenous
Peoples (NCIP), the government agency created under the IPRA to
implement its provisions, filed on October 13, 1998 their Comment to
the Petition, in which they defend the constitutionality of the IPRA
and pray that the petition be dismissed for lack of merit.
On October 19, 1998, respondents Secretary of the Department of
Environment and Natural Resources (DENR) and Secretary of the
Department of Budget and Management (DBM) filed through the
Solicitor General a consolidated Comment. The Solicitor General is of
the view that the IPRA is partly unconstitutional on the ground that it
grants ownership over natural resources to indigenous peoples and
prays that the petition be granted in part.
On November 10, 1998, a group of intervenors, composed of Sen.
Juan Flavier, one of the authors of the IPRA, Mr. Ponciano Bennagen,
a member of the 1986 Constitutional Commission, and the leaders and
members of 112 groups of indigenous peoples (Flavier, et. al), filed
their Motion for Leave to Intervene. They join the NCIP in defending
the constitutionality of IPRA and praying for the dismissal of the
petition.
On March 22, 1999, the Commission on Human Rights (CHR)
likewise filed a Motion to Intervene and/or to Appear as Amicus
Curiae. The CHR asserts that IPRA is an expression of the principle of
parens patriae and that the State has the responsibility to protect and
guarantee the rights of those who are at a serious disadvantage like
indigenous peoples. For this reason it prays that the petition be
dismissed.

On March 23, 1999, another group, composed of the Ikalahan


Indigenous People and the Haribon Foundation for the Conservation
of Natural Resources, Inc. (Haribon, et al.), filed a motion to
Intervene with attached Comment-in-Intervention. They agree with
the NCIP and Flavier, et al. that IPRA is consistent with the
Constitution and pray that the petition for prohibition and mandamus
be dismissed.
The motions for intervention of the aforesaid groups and
organizations were granted.
Oral arguments were heard on April 13, 1999. Thereafter, the parties
and intervenors filed their respective memoranda in which they
reiterate the arguments adduced in their earlier pleadings and during
the hearing.
Petitioners assail the constitutionality of the following provisions of
the IPRA and its Implementing Rules on the ground that they amount
to an unlawful deprivation of the States ownership over lands of the
public domain as well as minerals and other natural resources therein,
in violation of the regalian doctrine embodied in Section 2, Article XII
of the Constitution:
"(1) Section 3(a) which defines the extent and coverage of ancestral
domains, and Section 3(b) which, in turn, defines ancestral lands;
"(2) Section 5, in relation to section 3(a), which provides that
ancestral domains including inalienable public lands, bodies of water,
mineral and other resources found within ancestral domains are
private but community property of the indigenous peoples;
"(3) Section 6 in relation to section 3(a) and 3(b) which defines the
composition of ancestral domains and ancestral lands;

"(4) Section 7 which recognizes and enumerates the rights of the


indigenous peoples over the ancestral domains;

vest on the NCIP the sole authority to delineate ancestral


domains and ancestral lands;

(5) Section 8 which recognizes and enumerates the rights of the


indigenous peoples over the ancestral lands;

"(2) Section 52[i] which provides that upon certification by the


NCIP that a particular area is an ancestral domain and upon
notification to the following officials, namely, the Secretary of
Environment and Natural Resources, Secretary of Interior and
Local Governments, Secretary of Justice and Commissioner of
the National Development Corporation, the jurisdiction of said
officials over said area terminates;

"(6) Section 57 which provides for priority rights of the indigenous


peoples in the harvesting, extraction, development or exploration of
minerals and other natural resources within the areas claimed to be
their ancestral domains, and the right to enter into agreements with
nonindigenous peoples for the development and utilization of natural
resources therein for a period not exceeding 25 years, renewable for
not more than 25 years; and
"(7) Section 58 which gives the indigenous peoples the responsibility
to maintain, develop, protect and conserve the ancestral domains and
portions thereof which are found to be necessary for critical
watersheds, mangroves, wildlife sanctuaries, wilderness, protected
areas, forest cover or reforestation."2
Petitioners also content that, by providing for an all-encompassing
definition of "ancestral domains" and "ancestral lands" which might
even include private lands found within said areas, Sections 3(a) and
3(b) violate the rights of private landowners.3
In addition, petitioners question the provisions of the IPRA defining
the powers and jurisdiction of the NCIP and making customary law
applicable to the settlement of disputes involving ancestral domains
and ancestral lands on the ground that these provisions violate the due
process clause of the Constitution.4
These provisions are:
"(1) sections 51 to 53 and 59 which detail the process of
delineation and recognition of ancestral domains and which

"(3) Section 63 which provides the customary law, traditions


and practices of indigenous peoples shall be applied first with
respect to property rights, claims of ownership, hereditary
succession and settlement of land disputes, and that any doubt
or ambiguity in the interpretation thereof shall be resolved in
favor of the indigenous peoples;
"(4) Section 65 which states that customary laws and practices
shall be used to resolve disputes involving indigenous peoples;
and
"(5) Section 66 which vests on the NCIP the jurisdiction over
all claims and disputes involving rights of the indigenous
peoples."5
Finally, petitioners assail the validity of Rule VII, Part II, Section 1 of
the NCIP Administrative Order No. 1, series of 1998, which provides
that "the administrative relationship of the NCIP to the Office of the
President is characterized as a lateral but autonomous relationship for
purposes of policy and program coordination." They contend that said
Rule infringes upon the Presidents power of control over executive
departments under Section 17, Article VII of the Constitution.6
Petitioners pray for the following:

"(1) A declaration that Sections 3, 5, 6, 7, 8, 52[I], 57, 58, 59,


63, 65 and 66 and other related provisions of R.A. 8371 are
unconstitutional and invalid;
"(2) The issuance of a writ of prohibition directing the
Chairperson and Commissioners of the NCIP to cease and
desist from implementing the assailed provisions of R.A. 8371
and its Implementing Rules;
"(3) The issuance of a writ of prohibition directing the
Secretary of the Department of Environment and Natural
Resources to cease and desist from implementing Department
of Environment and Natural Resources Circular No. 2, series
of 1998;
"(4) The issuance of a writ of prohibition directing the
Secretary of Budget and Management to cease and desist from
disbursing public funds for the implementation of the assailed
provisions of R.A. 8371; and
"(5) The issuance of a writ of mandamus commanding the
Secretary of Environment and Natural Resources to comply
with his duty of carrying out the States constitutional mandate
to control and supervise the exploration, development,
utilization and conservation of Philippine natural resources."7
After due deliberation on the petition, the members of the Court voted
as follows:
Seven (7) voted to dismiss the petition. Justice Kapunan filed an
opinion, which the Chief Justice and Justices Bellosillo, Quisumbing,
and Santiago join, sustaining the validity of the challenged provisions
of R.A. 8371. Justice Puno also filed a separate opinion sustaining all
challenged provisions of the law with the exception of Section 1, Part
II, Rule III of NCIP Administrative Order No. 1, series of 1998, the

Rules and Regulations Implementing the IPRA, and Section 57 of the


IPRA which he contends should be interpreted as dealing with the
large-scale exploitation of natural resources and should be read in
conjunction with Section 2, Article XII of the 1987 Constitution. On
the other hand, Justice Mendoza voted to dismiss the petition solely
on the ground that it does not raise a justiciable controversy and
petitioners do not have standing to question the constitutionality of
R.A. 8371.
Seven (7) other members of the Court voted to grant the petition.
Justice Panganiban filed a separate opinion expressing the view that
Sections 3 (a)(b), 5, 6, 7 (a)(b), 8, and related provisions of R.A. 8371
are unconstitutional. He reserves judgment on the constitutionality of
Sections 58, 59, 65, and 66 of the law, which he believes must await
the filing of specific cases by those whose rights may have been
violated by the IPRA. Justice Vitug also filed a separate opinion
expressing the view that Sections 3(a), 7, and 57 of R.A. 8371 are
unconstitutional. Justices Melo, Pardo, Buena, Gonzaga-Reyes, and
De Leon join in the separate opinions of Justices Panganiban and
Vitug.
As the votes were equally divided (7 to 7) and the necessary majority
was not obtained, the case was redeliberated upon. However, after
redeliberation, the voting remained the same. Accordingly, pursuant to
Rule 56, Section 7 of the Rules of Civil Procedure, the petition is
DISMISSED.
Attached hereto and made integral parts thereof are the separate
opinions of Justices Puno, Vitug, Kapunan, Mendoza, and
Panganiban.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Quisumbing, Pardo, Buena,
Gonzaga-Reyes, Ynares-Santiago, and De Leon, Jr., JJ., concur.

Puno, Vitug, Kapunan, Mendoza and Panganiban JJ., see separate


opinion

Footnotes
1

Rollo, p. 114.

Petition, Rollo, pp. 16-23.

Id. at 23-25.

Section 1, Article III of the Constitution states: "No person


shall be deprived of life, liberty or property without due
process of law, nor shall any person be denied the equal
protection of the laws."
4

Rollo, pp. 25-27.

Id. at 27-28.

Transcript of Stenographic Notes of the hearing held on April


13, 1999, pp. 5-6.
7

The Lawphil Project - Arellano Law Foundation

SEPARATE OPINION
PUNO, J.:

PRECIS
A classic essay on the utility of history was written in 1874 by
Friedrich Nietzsche entitled "On the Uses and Disadvantages of
History for Life." Expounding on Nietzsche's essay, Judge Richard
Posner1 wrote:2
"Law is the most historically oriented, or if you like the most
backward-looking, the most 'past-dependent,' of the professions. It
venerates tradition, precedent, pedigree, ritual, custom, ancient
practices, ancient texts, archaic terminology, maturity, wisdom,
seniority, gerontocracy, and interpretation conceived of as a method of
recovering history. It is suspicious of innovation, discontinuities,
'paradigm shifts,' and the energy and brashness of youth. These
ingrained attitudes are obstacles to anyone who wants to re-orient law
in a more pragmatic direction. But, by the same
token, pragmatic jurisprudence must come to terms with history."
When Congress enacted the Indigenous Peoples Rights Act (IPRA),
it introduced radical concepts into the Philippine legal system which
appear to collide with settled constitutional and jural precepts on state
ownership of land and other natural resources. The sense and
subtleties of this law cannot be appreciated without considering its
distinct sociology and the labyrinths of its history. This Opinion
attempts to interpret IPRA by discovering its soul shrouded by the
mist of our history. After all, the IPRA was enacted by Congress not
only to fulfill the constitutional mandate of protecting the indigenous
cultural communities' right to their ancestral land but more
importantly, to correct a grave historical injustice to our
indigenous people.
This Opinion discusses the following:
I. The Development of the Regalian Doctrine in the Philippine Legal
System.

A. The Laws of the Indies


B. Valenton v. Murciano
C. The Public Land Acts and the Torrens System
D. The Philippine Constitutions
II. The Indigenous Peoples Rights Act (IPRA).
A. Indigenous Peoples
1. Indigenous Peoples: Their History
2. Their Concept of Land
III. The IPRA is a Novel Piece of Legislation.
A. Legislative History
IV. The Provisions of the IPRA Do Not Contravene the Constitution.
A. Ancestral domains and ancestral lands are the private
property of indigenous peoples and do not constitute part of the
land of the public domain.
1. The right to ancestral domains and ancestral lands:
how acquired
2. The concept of native title
(a) Cario v. Insular Government
(b) Indian Title to land
(c) Why the Cario doctrine is unique

3. The option of securing a torrens title to the ancestral


land
B. The right of ownership and possession by the ICCs/IPs to
their ancestral domains is a limited form of ownership and does
not include the right to alienate the same.
1. The indigenous concept of ownership and customary
law
C. Sections 7 (a), 7 (b) and 57 of the IPRA do not violate the
Regalian Doctrine enshrined in Section 2, Article XII of the
1987 Constitution.
1. The rights of ICCs/IPs over their ancestral domains
and lands
2. The right of ICCs/IPs to develop lands and natural
resources within the ancestral domains does not deprive
the State of ownership over the natural resources,
control and supervision in their development and
exploitation.
(a) Section 1, Part II, Rule III of the
Implementing Rules goes beyond the parameters
of Section 7(a) of the law on ownership of
ancestral domains and is ultra vires.
(b) The small-scale utilization of natural
resources in Section 7 (b) of the IPRA is allowed
under Paragraph 3, Section 2, Article XII of the
1987 Consitution.
(c) The large-scale utilization of natural resources
in Section 57 of the IPRA may be harmonized

with Paragraphs 1 and 4, Section 2, Article XII of


the 1987 Constitution.
V. The IPRA is a Recognition of Our Active Participation in the
International Indigenous Movement.
DISCUSSION
I. THE DEVELOPMENT OF THE REGALIAN DOCTRINE IN
THE PHILIPPINE LEGAL SYSTEM.
A. The Laws of the Indies
The capacity of the State to own or acquire property is the state's
power of dominium.3 This was the foundation for the early Spanish
decrees embracing the feudal theory of jura regalia. The "Regalian
Doctrine" or jura regaliais a Western legal concept that was first
introduced by the Spaniards into the country through the Laws of
the Indies and the Royal Cedulas. The Laws of the Indies, i.e., more
specifically, Law 14, Title 12, Book 4 of the Novisima Recopilacion de
Leyes de las Indias, set the policy of the Spanish Crown with respect
to the Philippine Islands in the following manner:
"We, having acquired full sovereignty over the Indies, and all lands,
territories, and possessions not heretofore ceded away by our royal
predecessors, or by us, or in our name, still pertaining to the royal
crown and patrimony, it is our will that all lands which are held
without proper and true deeds of grant be restored to us as they belong
to us, in order that after reserving before all what to us or to our
viceroys, audiencias, and governors may seem necessary for public
squares, ways, pastures, and commons in those places which are
peopled, taking into consideration not only their present condition, but
also their future and their probable increase, and after distributing to
the natives what may be necessary for tillage and pasturage,
confirming them in what they now have and giving them more if

necessary, all the rest of said lands may remain free and
unencumbered for us to dispose of as we may wish.
We therefore order and command that all viceroys and presidents of
pretorial courts designate at such time as shall to them seem most
expedient, a suitable period within which all possessors of tracts,
farms, plantations, and estates shall exhibit to them and to the court
officers appointed by them for this purpose, their title deeds thereto.
And those who are in possession by virtue of proper deeds and
receipts, or by virtue of just prescriptive right shall be protected, and
all the rest shall be restored to us to be disposed of at our will."4
The Philippines passed to Spain by virtue of "discovery" and
conquest. Consequently, all lands became the exclusive patrimony and
dominion of the Spanish Crown. The Spanish Government took
charge of distributing the lands by issuing royal grants and
concessions to Spaniards, both military and civilian.5 Private land
titles could only be acquired from the government either by purchase
or by the various modes of land grant from the Crown.6
The Laws of the Indies were followed by the Ley Hipotecaria, or the
Mortgage Law of 1893.7 The Spanish Mortgage Law provided for the
systematic registration of titles and deeds as well as possessory
claims. The law sought to register and tax lands pursuant to the Royal
Decree of 1880. The Royal Decree of 1894, or the "Maura Law," was
partly an amendment of the Mortgage Law as well as the Laws of the
Indies, as already amended by previous orders and decrees.8 This was
the last Spanish land law promulgated in the Philippines. It required
the "adjustment" or registration of all agricultural lands, otherwise the
lands shall revert to the state.
Four years later, by the Treaty of Paris of December 10, 1898, Spain
ceded to the government of the United States all rights, interests and
claims over the national territory of the Philippine Islands. In 1903,

the United States colonial government, through the Philippine


Commission, passed Act No. 926, the first Public Land Act.

Islands should follow strictly the Laws of the Indies, theOrdenanza of


the Intendentes of 1786, and the Royal Cedula of 1754.11

B. Valenton v. Murciano

Quoting the preamble of Law 14, Title 12, Book 4 of


the Recopilacion de Leyes de las Indias, the court interpreted it as
follows:

In 1904, under the American regime, this Court decided the case
of Valenton v. Murciano.9
Valenton resolved the question of which is the better basis for
ownership of land: long-time occupation or paper title. Plaintiffs had
entered into peaceful occupation of the subject land in 1860.
Defendant's predecessor-in-interest, on the other hand, purchased the
land from the provincial treasurer of Tarlac in 1892. The lower court
ruled against the plaintiffs on the ground that they had lost all rights to
the land by not objecting to the administrative sale. Plaintiffs appealed
the judgment, asserting that their 30-year adverse possession, as an
extraordinary period of prescription in the Partidas and the Civil
Code, had given them title to the land as against everyone, including
the State; and that the State, not owning the land, could not validly
transmit it.
The Court, speaking through Justice Willard, decided the case on the
basis of "those special laws which from earliest time have regulated
the disposition of the public lands in the colonies."10 The question
posed by the Court was: "Did these special laws recognize any right
of prescription as against the State as to these lands; and if so, to what
extent was it recognized?"
Prior to 1880, the Court said, there were no laws specifically
providing for the disposition of land in the Philippines. However, it
was understood that in the absence of any special law to govern a
specific colony, the Laws of the Indies would be followed. Indeed, in
the Royal Order of July 5, 1862, it was decreed that until regulations
on the subject could be prepared, the authorities of the Philippine

"In the preamble of this law there is, as is seen, a distinct statement
that all those lands belong to the Crown which have not been granted
by Philip, or in his name, or by the kings who preceded him. This
statement excludes the idea that there might be lands not so
granted, that did not belong to the king. It excludes the idea that
the king was not still the owner of all ungranted lands, because
some private person had been in the adverse occupation of them. By
the mandatory part of the law all the occupants of the public lands are
required to produce before the authorities named, and within a time to
be fixed by them, their title papers. And those who had good title or
showed prescription were to be protected in their holdings. It is
apparent that it was not the intention of the law that mere possession
for a length of time should make the possessors the owners of the land
possessed by them without any action on the part of the authorities."12
The preamble stated that all those lands which had not been granted
by Philip, or in his name, or by the kings who preceded him, belonged
to the Crown.13 For those lands granted by the king, the decree
provided for a system of assignment of such lands. It also ordered that
all possessors of agricultural land should exhibit their title deed,
otherwise, the land would be restored to the Crown.14
The Royal Cedula of October 15, 1754 reinforced
the Recopilacion when it ordered the Crown's principal subdelegate to
issue a general order directing the publication of the Crown's
instructions:

"x x x to the end that any and all persons who, since the year 1700,
and up to the date of the promulgation and publication of said order,
shall have occupied royal lands, whether or not x x x cultivated or
tenanted, may x x x appear and exhibit to said subdelegates the titles
and patents by virtue of which said lands are occupied. x x x. Said
subdelegates will at the same time warn the parties interested that in
case of their failure to present their title deeds within the term
designated, without a just and valid reason therefor, they will be
deprived of and evicted from their lands, and they will be granted to
others."15
On June 25, 1880, the Crown adopted regulations for the adjustment
of lands "wrongfully occupied" by private individuals in the
Philippine Islands. Valenton construed these regulations together with
contemporaneous legislative and executive interpretations of the law,
and concluded that plaintiffs' case fared no better under the 1880
decree and other laws which followed it, than it did under the earlier
ones. Thus as a general doctrine, the Court stated:
"While the State has always recognized the right of the occupant to a
deed if he proves a possession for a sufficient length of time, yet
it has always insisted that he must make that proof before the
proper administrative officers, and obtain from them his deed,
and until he did that the State remained the absolute owner."16
In conclusion, the Court ruled: "We hold that from 1860 to 1892 there
was no law in force in these Islands by which the plaintiffs could
obtain the ownership of these lands by prescription, without any
action by the State."17Valenton had no rights other than those which
accrued to mere possession. Murciano, on the other hand, was deemed
to be the owner of the land by virtue of the grant by the provincial
secretary. In effect, Valenton upheld the Spanish concept of state
ownership of public land.

As a fitting observation, the Court added that "[t]he policy pursued


by the Spanish Government from earliest times, requiring settlers
on the public lands to obtain title deeds therefor from the State,
has been continued by the American Government in Act No.
926."18
C. The Public Land Acts and the Torrens System
Act No. 926, the first Public Land Act, was passed in pursuance of the
provisions of the the Philippine Bill of 1902. The law governed the
disposition of lands of the public domain. It prescribed rules and
regulations for the homesteading, selling, and leasing of portions of
the public domain of the Philippine Islands, and prescribed the terms
and conditions to enable persons to perfect their titles to public lands
in the Islands. It also provided for the "issuance of patents to certain
native settlers upon public lands," for the establishment of town sites
and sale of lots therein, for the completion of imperfect titles, and for
the cancellation or confirmation of Spanish concessions and grants in
the Islands." In short, the Public Land Act operated on the assumption
that title to public lands in the Philippine Islands remained in the
government;19 and that the government's title to public land sprung
from the Treaty of Paris and other subsequent treaties between Spain
and the United States.20 The term "public land" referred to all lands of
the public domain whose title still remained in the government and
are thrown open to private appropriation and settlement,21 and
excluded the patrimonial property of the government and the friar
lands.22
Act No. 926 was superseded in 1919 by Act 2874, the second
Public Land Act. This new law was passed under the Jones Law. It
was more comprehensive in scope but limited the exploitation of
agricultural lands to Filipinos and Americans and citizens of other
countries which gave Filipinos the same privileges.23 After the passage
of the 1935 Constitution, Act 2874 was amended in 1936
by Commonwealth Act No. 141. Commonwealth Act No. 141

remains the present Public Land Law and it is essentially the same as
Act 2874. The main difference between the two relates to the
transitory provisions on the rights of American citizens and
corporations during the Commonwealth period at par with Filipino
citizens and corporations.24

knew that the concept of State ownership of land and natural


resources was introduced by the Spaniards, however, they were not
certain whether it was continued and applied by the Americans. To
remove all doubts, the Convention approved the provision in the
Constitution affirming the Regalian doctrine.31

Grants of public land were brought under the operation of the


Torrens system under Act 496, or the Land Registration Law of
1903. Enacted by the Philippine Commission, Act 496 placed all
public and private lands in the Philippines under the Torrens system.
The law is said to be almost a verbatim copy of the Massachussetts
Land Registration Act of 1898,25 which, in turn, followed the
principles and procedure of the Torrens system of registration
formulated by Sir Robert Torrens who patterned it after the Merchant
Shipping Acts in South Australia. The Torrens system requires that the
government issue an official certificate of title attesting to the fact that
the person named is the owner of the property described therein,
subject to such liens and encumbrances as thereon noted or the law
warrants or reserves.26 The certificate of title is indefeasible and
imprescriptible and all claims to the parcel of land are quieted upon
issuance of said certificate. This system highly facilitates land
conveyance and negotiation.27

Thus, the 1935 Constitution, in Section 1 of Article XIII on


"Conservation and Utilization of Natural Resources," reads as
follows:

D. The Philippine Constitutions


The Regalian doctrine was enshrined in the 1935 Constitution. One
of the fixed and dominating objectives of the 1935 Constitutional
Convention was the nationalization and conservation of the natural
resources of the country.28 There was an overwhelming sentiment in
the Convention in favor of the principle of state ownership of
natural resources and the adoption of the Regalian
doctrine.29 State ownership of natural resources was seen as a
necessary starting point to secure recognition of the state's power to
control their disposition, exploitation, development, or
utilization.30 The delegates to the Constitutional Convention very well

"Sec. 1. All agricultural, timber, and mineral lands of the public


domain, waters, minerals, coal, petroleum, and other mineral oils,
all forces of potential energy, and other natural resources of the
Philippines belong to the State, and their disposition, exploitation,
development, or utilization shall be limited to citizens of the
Philippines, or to corporations or associations at least sixty per
centum of the capital of which is owned by such citizens, subject
to any existing right, grant, lease, or concession at the time of the
inauguration of the Government established under this
Constitution. Natural resources, with the exception of public
agricultural land, shall not be alienated, and no license, concession,
or lease for the exploitation, development, or utilization of any of the
natural resources shall be granted for a period exceeding twenty-five
years, except as to water rights for irrigation, water supply, fisheries,
or industrial uses other than the development of water power, in which
cases beneficial use may be the measure and the limit of the grant."
The 1973 Constitution reiterated the Regalian doctrine in Section 8,
Article XIV on the "National Economy and the Patrimony of the
Nation," to wit:
"Sec. 8. All lands of the public domain, waters, minerals, coal,
petroleum and other mineral oils, all forces of potential energy,
fisheries, wildlife, and other natural resources of the Philippines
belong to the State. With the exception of agricultural, industrial

or commercial, residential, and resettlement lands of the public


domain, natural resources shall not be alienated, and no license,
concession, or lease for the exploration, development, exploitation,
or utilization of any of the natural resources shall be granted for a
period exceeding twenty-five years, renewable for not more than
twenty-five years,except as to water rights for irrigation, water
supply, fisheries, or industrial uses other than the development of
water power, in which cases beneficial use may be the measure and
the limit of the grant."
The 1987 Constitution reaffirmed the Regalian doctrine in Section 2
of Article XII on "National Economy and Patrimony," to wit:
"Sec. 2. All lands of the public domain, waters, minerals, coal,
petroleum, and other mineral oils, all forces of potential energy,
fisheries, forests or timber, wildlife, flora and fauna, and other
natural resources are owned by the State. With the exception of
agricultural lands, all other natural resources shall not be
alienated. The exploration, development and utilization of natural
resources shall be under the full control and supervision of the
State. The State may directly undertake such activities or it may
enter into co-production, joint venture, or production-sharing
agreements with Filipino citizens, or corporations or associations
at least sixty per centum of whose capital is owned by such
citizens.Such agreements may be for a period not exceeding twentyfive years, renewable for not more than twenty-five years, and under
such terms and conditions as may be provided by law. In cases of
water rights for irrigation, water supply, fisheries, or industrial uses
other than the development of water power, beneficial use may be the
measure and limit of the grant.
x x x."
Simply stated, all lands of the public domain as well as all natural
resources enumerated therein, whether on public or private land,

belong to the State. It is this concept of State ownership that


petitioners claim is being violated by the IPRA.
II. THE INDIGENOUS PEOPLES RIGHTS ACT.
Republic Act No. 8371 is entitled "An Act to Recognize, Protect and
Promote the Rights of Indigenous Cultural Communities/ Indigenous
Peoples, Creating a National Commission on Indigenous Peoples,
Establishing Implementing Mechanisms, Appropriating Funds
Therefor, and for Other Purposes." It is simply known as "The
Indigenous Peoples Rights Act of 1997" or the IPRA.
The IPRA recognizes the existence of the indigenous cultural
communities or indigenous peoples (ICCs/IPs) as a distinct sector in
Philippine society. It grants these people the ownership and
possession of their ancestral domains and ancestral lands, and
defines the extent of these lands and domains. The ownership
given is the indigenous concept of ownership under customary
law which traces its origin to native title.
Other rights are also granted the ICCs/IPs, and these are:
- the right to develop lands and natural resources;
- the right to stay in the territories;
- the right in case of displacement;
- the right to safe and clean air and water;
- the right to claim parts of reservations;
- the right to resolve conflict;32
- the right to ancestral lands which include

a. the right to transfer land/property to/among members


of the same ICCs/IPs, subject to customary laws and
traditions of the community concerned;
b. the right to redemption for a period not exceeding 15
years from date of transfer, if the transfer is to a nonmember of the ICC/IP and is tainted by vitiated consent
of the ICC/IP, or if the transfer is for an unconscionable
consideration.33
Within their ancestral domains and ancestral lands, the ICCs/IPs are
given the right to self-governance and empowerment,34 social justice
and human rights,35 the right to preserve and protect their culture,
traditions, institutions and community intellectual rights, and the right
to develop their own sciences and technologies.36
To carry out the policies of the Act, the law created the National
Commission on Indigenous Peoples (NCIP). The NCIP is an
independent agency under the Office of the President and is composed
of seven (7) Commissioners belonging to ICCs/IPs from each of the
ethnographic areas- Region I and the Cordilleras; Region II; the rest
of Luzon; Island groups including Mindoro, Palawan, Romblon,
Panay and the rest of the Visayas; Northern and Western Mindanao;
Southern and Eastern Mindanao; and Central Mindanao.37 The NCIP
took over the functions of the Office for Northern Cultural
Communities and the Office for Southern Cultural Communities
created by former President Corazon Aquino which were merged
under a revitalized structure.38
Disputes involving ICCs/IPs are to be resolved under customary
laws and practices. When still unresolved, the matter may be brought
to the NCIP, which is granted quasi-judicial powers.39 The NCIP's
decisions may be appealed to the Court of Appeals by a petition for
review.

Any person who violates any of the provisions of the Act such as, but
not limited to, unauthorized and/or unlawful intrusion upon ancestral
lands and domains shall be punished in accordance with customary
laws or imprisoned from 9 months to 12 years and/or fined
from P100,000.00 to P500,000.00 and obliged to pay damages.40
A. Indigenous Peoples
The IPRA is a law dealing with a specific group of people, i.e., the
Indigenous Cultural Communities (ICCs) or the Indigenous Peoples
(IPs). The term "ICCs" is used in the 1987 Constitution while that of
"IPs" is the contemporary international language in the International
Labor Organization (ILO) Convention 16941 and the United Nations
(UN) Draft Declaration on the Rights of Indigenous Peoples.42
ICCs/IPs are defined by the IPRA as:
"Sec. 3 [h]. Indigenous Cultural Communities/ Indigenous Peoplesrefer to a group of people or homogeneous societies identified by selfascription and ascription by others, who have continuously lived as
organized community on communally bounded and defined territory,
and who have, under claims of ownership since time immemorial,
occupied, possessed and utilized such territories, sharing common
bonds of language, customs, traditions and other distinctive cultural
traits, or who have, through resistance to political, social and cultural
inroads of colonization, non-indigenous religions and cultures,
became historically differentiated from the majority of Filipinos.
ICCs/IPs shall likewise include peoples who are regarded as
indigenous on account of their descent from the populations which
inhabited the country, at the time of conquest or colonization, or at the
time of inroads of non-indigenous religions and cultures, or the
establishment of present state boundaries, who retain some or all of
their own social, economic, cultural and political institutions, but who
may have been displaced from their traditional domains or who may
have resettled outside their ancestral domains."

Indigenous Cultural Communities or Indigenous Peoples refer to


a group of people or homogeneous societies who have
continuously lived as an organized community on communally
bounded and defined territory. These groups of people have
actually occupied, possessed and utilized their territories under claim
of ownership since time immemorial. They share common bonds of
language, customs, traditions and other distinctive cultural traits, or,
they, by their resistance to political, social and cultural inroads of
colonization, non-indigenous religions and cultures, became
historically differentiated from the Filipino majority. ICCs/IPs also
include descendants of ICCs/IPs who inhabited the country at the time
of conquest or colonization, who retain some or all of their own
social, economic, cultural and political institutions but who may have
been displaced from their traditional territories or who may have
resettled outside their ancestral domains.
1. Indigenous Peoples: Their History
Presently, Philippine indigenous peoples inhabit the interiors and
mountains of Luzon, Mindanao, Mindoro, Negros, Samar, Leyte, and
the Palawan and Sulu group of islands. They are composed of 110
tribes and are as follows:
1. In the Cordillera Autonomous Region- Kankaney, Ibaloi,
Bontoc, Tinggian or Itneg, Ifugao, Kalinga, Yapayao, Aeta or
Agta or Pugot, and Bago of Ilocos Norte and Pangasinan;
Ibanag of Isabela, Cagayan; Ilongot of Quirino and Nueva
Vizcaya; Gaddang of Quirino, Nueva Vizcaya, Itawis of
Cagayan; Ivatan of Batanes, Aeta of Cagayan, Quirino and
Isabela.
2. In Region III- Aetas.
3. In Region IV- Dumagats of Aurora, Rizal; Remontado of
Aurora, Rizal, Quezon; Alangan or Mangyan, Batangan, Buid

or Buhid, Hanunuo and Iraya of Oriental and Occidental


Mindoro; Tadyawan of Occidental Mindoro; Cuyonon,
Palawanon, Tagbanua and Tao't bato of Palawan.
4. In Region V- Aeta of Camarines Norte and Camarines Sur;
Aeta-Abiyan, Isarog, and Kabihug of Camarines Norte; Agta,
and Mayon of Camarines Sur; Itom of Albay, Cimaron of
Sorsogon; and the Pullon of Masbate and Camarines Sur.
5. In Region VI- Ati of Negros Occidental, Iloilo and Antique,
Capiz; the Magahat of Negros Occidental; the Corolano and
Sulod.
6. In Region VII- Magahat of Negros Oriental and Eskaya of
Bohol.
7. In Region IX- the Badjao numbering about 192,000 in TawiTawi, Zamboanga del Sur; the Kalibugan of Basilan, the
Samal, Subanon and Yakat.
8. Region X- Numbering 1.6 million in Region X alone, the IPs
are: the Banwaon, Bukidnon, Matigsalog, Talaanding of
Bukidnon; the Camiguin of Camiguin Island; the Higa-unon of
Agusan del Norte, Agusan del Sur, Bukidnon and Misamis
Occidental; the Tigwahanon of Agusan del Sur, Misamis
Oriental and and Misamis Occidental, the Manobo of the
Agusan provinces, and the Umayamnon of Agusan and
Bukidnon.
9. In Region XI- There are about 1,774,065 IPs in Region XI.
They are tribes of the Dibabaon, Mansaka of Davao del Norte;
B'laan, Kalagan, Langilad, T'boli and Talaingod of Davao del
Sur; Mamamanua of Surigao del Sur; Mandaya of the Surigao
provinces and Davao Oriental; Manobo Blit of South Cotabato;
the Mangguangon of Davao and South Cotabato; Matigsalog of

Davao del Norte and Del Sur; Tagakaolo, Tasaday and Ubo of
South Cotabato; and Bagobo of Davao del sur and South
Cotabato.
10. In Region XII- Ilianen, Tiruray, Maguindanao, Maranao,
Tausug, Yakan/Samal, and Iranon.43
How these indigenous peoples came to live in the Philippines goes
back to as early as 25,000 to 30,000 B.C.
Before the time of Western contact, the Philippine archipelago was
peopled largely by the Negritos, Indonesians and Malays.44 The strains
from these groups eventually gave rise to common cultural features
which became the dominant influence in ethnic reformulation in the
archipelago. Influences from the Chinese and Indian civilizations in
the third or fourth millenium B.C. augmented these ethnic strains.
Chinese economic and socio-cultural influences came by way of
Chinese porcelain, silk and traders. Indian influence found their way
into the religious-cultural aspect of pre-colonial society.45
The ancient Filipinos settled beside bodies of water. Hunting and
food gathering became supplementary activities as reliance on them
was reduced by fishing and the cultivation of the soil.46 From the
hinterland, coastal, and riverine communities, our ancestors evolved
an essentially homogeneous culture, a basically common way of life
where nature was a primary factor. Community life throughout the
archipelago was influenced by, and responded to, common ecology.
The generally benign tropical climate and the largely uniform flora
and fauna favored similarities, not differences.47 Life was essentially
subsistence but not harsh.48
The early Filipinos had a culture that was basically Malayan in
structure and form. They had languages that traced their origin to the
Austronesian parent-stock and used them not only as media of daily
communication but also as vehicles for the expression of their literary

moods.49 They fashioned concepts and beliefs about the world that
they could not see, but which they sensed to be part of their
lives.50 They had their own religion and religious beliefs. They
believed in the immortality of the soul and life after death. Their
rituals were based on beliefs in a ranking deity whom they called
Bathalang Maykapal, and a host of other deities, in the environmental
spirits and in soul spirits. The early Filipinos adored the sun, the
moon, the animals and birds, for they seemed to consider the objects
of Nature as something to be respected. They venerated almost any
object that was close to their daily life, indicating the importance of
the relationship between man and the object of nature.51
The unit of government was the "barangay," a term that derived its
meaning from the Malay word "balangay," meaning, a boat, which
transported them to these shores.52 The barangay was basically a
family-based community and consisted of thirty to one hundred
families. Each barangay was different and ruled by a chieftain called a
"dato." It was the chieftain's duty to rule and govern his subjects and
promote their welfare and interests. A chieftain had wide powers for
he exercised all the functions of government. He was the executive,
legislator and judge and was the supreme commander in time of war.53
Laws were either customary or written. Customary laws were
handed down orally from generation to generation and
constituted the bulk of the laws of the barangay. They were
preserved in songs and chants and in the memory of the elder persons
in the community.54 The written laws were those that the chieftain and
his elders promulgated from time to time as the necessity arose. 55 The
oldest known written body of laws was the Maragtas Code by Datu
Sumakwel at about 1250 A.D. Other old codes are the Muslim Code
of Luwaran and the Principal Code of Sulu.56 Whether customary or
written, the laws dealt with various subjects, such as inheritance,
divorce, usury, loans, partnership, crime and punishment, property
rights, family relations and adoption. Whenever disputes arose, these
were decided peacefully through a court composed by the chieftain as

"judge" and the barangay elders as "jury." Conflicts arising between


subjects of different barangays were resolved by arbitration in which a
board composed of elders from neutral barangays acted as arbiters.57
Baranganic society had a distinguishing feature: the absence of
private property in land. The chiefs merely administered the lands
in the name of the barangay. The social order was an extension of the
family with chiefs embodying the higher unity of the community.
Each individual, therefore, participated in the community ownership
of the soil and the instruments of production as a member of the
barangay.58 This ancient communalism was practiced in accordance
with the concept of mutual sharing of resources so that no individual,
regardless of status, was without sustenance. Ownership of land was
non-existent or unimportant and the right of usufruct was what
regulated the development of lands.59 Marine resources and fishing
grounds were likewise free to all. Coastal communities depended for
their economic welfare on the kind of fishing sharing concept similar
to those in land communities.60 Recognized leaders, such as the
chieftains and elders, by virtue of their positions of importance,
enjoyed some economic privileges and benefits. But their rights,
related to either land and sea, were subject to their responsibility to
protect the communities from danger and to provide them with the
leadership and means of survival.61
Sometime in the 13th century, Islam was introduced to the
archipelago in Maguindanao. The Sultanate of Sulu was established
and claimed jurisdiction over territorial areas represented today by
Tawi-tawi, Sulu, Palawan, Basilan and Zamboanga. Four ethnic
groups were within this jurisdiction: Sama, Tausug, Yakan and
Subanon.62 The Sultanate of Maguindanao spread out from Cotabato
toward Maranao territory, now Lanao del Norte and Lanao del Sur.63
The Muslim societies evolved an Asiatic form of feudalism where
land was still held in common but was private in use. This is
clearly indicated in the Muslim Code of Luwaran. The Code contains

a provision on the lease of cultivated lands. It, however, has no


provision for the acquisition, transfer, cession or sale of land.64
The societies encountered by Magellan and Legaspi therefore were
primitive economies where most production was geared to the use of
the producers and to the fulfillment of kinship obligations. They were
not economies geared to exchange and profit.65 Moreover, the family
basis of barangay membership as well as of leadership and
governance worked to splinter the population of the islands into
numerous small and separate communities.66
When the Spaniards settled permanently in the Philippines in
1565, they found the Filipinos living in barangay settlements
scattered along water routes and river banks. One of the first tasks
imposed on the missionaries and the encomenderos was to collect all
scattered Filipinos together in a reduccion.67 As early as 1551, the
Spanish government assumed an unvarying solicitous attitude towards
the natives.68 The Spaniards regarded it a sacred "duty to conscience
and humanity to civilize these less fortunate people living in the
obscurity of ignorance" and to accord them the "moral and material
advantages" of community life and the "protection and vigilance
afforded them by the same laws."69
The Spanish missionaries were ordered to establish pueblos where the
church and convent would be constructed. All the new Christian
converts were required to construct their houses around the church
and the unbaptized were invited to do the same.70 With the reduccion,
the Spaniards attempted to "tame" the reluctant Filipinos through
Christian indoctrination using the convento/casa real/plaza complex
as focal point. The reduccion, to the Spaniards, was a "civilizing"
device to make the Filipinos law-abiding citizens of the Spanish
Crown, and in the long run, to make them ultimately adopt Hispanic
culture and civilization.71

All lands lost by the old barangays in the process of pueblo


organization as well as all lands not assigned to them and the
pueblos, were now declared to be crown lands or realengas,
belonging to the Spanish king. It was from the realengas that land
grants were made to non-Filipinos.72
The abrogation of the Filipinos' ancestral rights in land and the
introduction of the concept of public domain were the most
immediate fundamental results of Spanish colonial theory and
law.73 The concept that the Spanish king was the owner of
everything of value in the Indies or colonies was imposed on the
natives, and the natives were stripped of their ancestral rights to
land.74
Increasing their foothold in the Philippines, the Spanish colonialists,
civil and religious, classified the Filipinos according to their religious
practices and beliefs, and divided them into three types . First were
the Indios, the Christianized Filipinos, who generally came from the
lowland populations. Second, were the Moros or the Muslim
communities, and third, were the infieles or the indigenous
communities.75
The Indio was a product of the advent of Spanish culture. This class
was favored by the Spaniards and was allowed certain status although
below the Spaniards. The Moros and infieles were regarded as the
lowest classes.76
The Moros and infieles resisted Spanish rule and Christianity. The
Moros were driven from Manila and the Visayas to Mindanao; while
the infieles, to the hinterlands. The Spaniards did not pursue them
into the deep interior. The upland societies were naturally outside the
immediate concern of Spanish interest, and the cliffs and forests of the
hinterlands were difficult and inaccessible, allowing the infieles, in
effect, relative security.77 Thus, the infieles, which were peripheral to
colonial administration, were not only able to preserve their own

culture but also thwarted the Christianization process, separating


themselves from the newly evolved Christian community.78Their own
political, economic and social systems were kept constantly alive and
vibrant.
The pro-Christian or pro-Indio attitude of colonialism brought about a
generally mutual feeling of suspicion, fear, and hostility between the
Christians on the one hand and the non-Christians on the other.
Colonialism tended to divide and rule an otherwise culturally and
historically related populace through a colonial system that exploited
both the virtues and vices of the Filipinos.79
President McKinley, in his instructions to the Philippine
Commission of April 7, 1900, addressed the existence of the
infieles:
"In dealing with the uncivilized tribes of the Islands, the
Commission should adopt the same course followed by Congress
in permitting the tribes of our North American Indians to
maintain their tribal organization and government, and under
which many of those tribes are now living in peace and contentment,
surrounded by civilization to which they are unable or unwilling to
conform. Such tribal government should, however, be subjected to
wise and firm regulation; and, without undue or petty interference,
constant and active effort should be exercised to prevent barbarous
practices and introduce civilized customs."80
Placed in an alternative of either letting the natives alone or guiding
them in the path of civilization, the American government chose "to
adopt the latter measure as one more in accord with humanity and
with the national conscience."81
The Americans classified the Filipinos into two: the Christian
Filipinos and the non-Christian Filipinos. The term "non-Christian"
referred not to religious belief, but to a geographical area, and more

directly, "to natives of the Philippine Islands of a low grade of


civilization, usually living in tribal relationship apart from settled
communities."82
Like the Spaniards, the Americans pursued a policy of
assimilation. In 1903, they passed Act No. 253 creating the Bureau
of Non-Christian Tribes (BNCT). Under the Department of the
Interior, the BNCT's primary task was to conduct ethnographic
research among unhispanized Filipinos, including those in Muslim
Mindanao, with a "special view to determining the most practicable
means for bringing about their advancement in civilization and
prosperity." The BNCT was modeled after the bureau dealing with
American Indians. The agency took a keen anthropological interest
in Philippine cultural minorities and produced a wealth of valuable
materials about them.83

The policy of assimilation and integration did not yield the desired
result. Like the Spaniards and Americans, government attempts at
integration met with fierce resistance. Since World War II, a tidal
wave of Christian settlers from the lowlands of Luzon and the Visayas
swamped the highlands and wide open spaces in
Mindanao.86Knowledge by the settlers of the Public Land Acts and
the Torrens system resulted in the titling of several ancestral lands
in the settlers' names. With government initiative and
participation, this titling displaced several indigenous peoples
from their lands. Worse, these peoples were also displaced by
projects undertaken by the national government in the name of
national development.87
It was in the 1973 Constitution that the State adopted the following
provision:

The 1935 Constitution did not carry any policy on the nonChristian Filipinos. The raging issue then was the conservation of
the national patrimony for the Filipinos.

"The State shall consider the customs, traditions, beliefs, and interests
of national cultural communities in the formulation and
implementation of State policies."88

In 1957, the Philippine Congress passed R.A. No. 1888, an "Act to


effectuate in a more rapid and complete manner the economic, social,
moral and political advancement of the non-Christian Filipinos or
national cultural minorities and to render real, complete, and
permanent the integration of all said national cultural minorities into
the body politic, creating the Commission on National
Integration charged with said functions." The law called for a policy
of integration of indigenous peoples into the Philippine mainstream
and for this purpose created theCommission on National
Integration (CNI).84 The CNI was given, more or less, the same task
as the BNCT during the American regime. The post-independence
policy of integration was like the colonial policy of assimilation
understood in the context of a guardian-ward relationship.85

For the first time in Philippine history, the "non-Christian tribes"


or the "cultural minorities" were addressed by the highest law of
the Republic, and they were referred to as "cultural
communities."More importantly this time, their "uncivilized" culture
was given some recognition and their "customs, traditions, beliefs and
interests" were to be considered by the State in the formulation and
implementation of State policies.President Marcos abolished the
CNI and transferred its functions to the Presidential Adviser on
National Minorities (PANAMIN). The PANAMIN was tasked to
integrate the ethnic groups that sought full integration into the larger
community, and at the same time "protect the rights of those who wish
to preserve their original lifeways beside the larger community."89 In
short, while still adopting the integration policy, the decree
recognized the right of tribal Filipinos to preserve their way of
life.90

In 1974, President Marcos promulgated P.D. No. 410, otherwise


known as the Ancestral Lands Decree. The decree provided for the
issuance of land occupancy certificates to members of the national
cultural communities who were given up to 1984 to register their
claims.91 In 1979, the Commission on the Settlement of Land
Problems was created under E.O. No. 561 which provided a
mechanism for the expeditious resolution of land problems involving
small settlers, landowners, and tribal Filipinos.92
Despite the promulgation of these laws, from 1974 to the early 1980's,
some 100,000 Kalingas and Bontoks of the Cordillera region were
displaced by the Chico River dam project of the National Power
Corporation (NPC). The Manobos of Bukidnon saw their land
bulldozed by the Bukidnon Sugar Industries Company (BUSCO). In
Agusan del Sur, the National Development Company was authorized
by law in 1979 to take approximately 40,550 hectares of land that
later became the NDC-Guthrie plantation in Agusan del Sur. Most of
the land was possessed by the Agusan natives.93 Timber concessions,
water projects, plantations, mining, and cattle ranching and other
projects of the national government led not only to the eviction of the
indigenous peoples from their land but also to the reduction and
destruction of their natural environment.94
The Aquino government signified a total shift from the policy of
integration to one of preservation.Invoking her powers under the
Freedom Constitution, President Aquino created the Office of
Muslim Affairs, Office for Northern Cultural Communities and
the Office for Southern Cultural Communities all under the
Office of the President.95
The 1987 Constitution carries at least six (6) provisions which
insure the right of tribal Filipinos to preserve their way of
life.96 This Constitution goes further than the 1973 Constitution by
expressly guaranteeing the rights of tribal Filipinos to their
ancestral domains and ancestral lands. By recognizing their right

to their ancestral lands and domains, the State has effectively


upheld their right to live in a culture distinctly their own.
2. Their Concept of Land
Indigenous peoples share distinctive traits that set them apart from
the Filipino mainstream. They are non-Christians. They live in less
accessible, marginal, mostly upland areas. They have a system of selfgovernment not dependent upon the laws of the central administration
of the Republic of the Philippines. They follow ways of life and
customs that are perceived as different from those of the rest of the
population.97 The kind of response the indigenous peoples chose to
deal with colonial threat worked well to their advantage by making it
difficult for Western concepts and religion to erode their customs and
traditions. The "infieles societies" which had become peripheral to
colonial administration, represented, from a cultural perspective, a
much older base of archipelagic culture. The political systems were
still structured on the patriarchal and kinship oriented arrangement of
power and authority. The economic activities were governed by the
concepts of an ancient communalism and mutual help. The social
structure which emphasized division of labor and distinction of
functions, not status, was maintained. The cultural styles and forms of
life portraying the varieties of social courtesies and ecological
adjustments were kept constantly vibrant.98
Land is the central element of the indigenous peoples'
existence. There is no traditional concept of permanent, individual,
land ownership. Among the Igorots, ownership of land more
accurately applies to the tribal right to use the land or to territorial
control. The people are the secondary owners or stewards of the land
and that if a member of the tribe ceases to work, he loses his claim of
ownership, and the land reverts to the beings of the spirit world who
are its true and primary owners. Under the concept of "trusteeship,"
the right to possess the land does not only belong to the present
generation but the future ones as well.99

Customary law on land rests on the traditional belief that no one


owns the land except the gods and spirits, and that those who work the
land are its mere stewards.100 Customary law has a strong
preference for communal ownership, which could either be
ownership by a group of individuals or families who are related by
blood or by marriage,101 or ownership by residents of the same locality
who may not be related by blood or marriage. The system of
communal ownership under customary laws draws its meaning from
the subsistence and highly collectivized mode of economic
production. The Kalingas, for instance, who are engaged in team
occupation like hunting, foraging for forest products, and swidden
farming found it natural that forest areas, swidden farms, orchards,
pasture and burial grounds should be communally-owned.102 For the
Kalingas, everybody has a common right to a common economic
base. Thus, as a rule, rights and obligations to the land are shared in
common.
Although highly bent on communal ownership, customary law on
land also sanctions individual ownership. The residential lots and
terrace rice farms are governed by a limited system of individual
ownership. It is limited because while the individual owner has the
right to use and dispose of the property, he does not possess all the
rights of an exclusive and full owner as defined under our Civil
Code.103 Under Kalinga customary law, the alienation of individuallyowned land is strongly discouraged except in marriage and succession
and except to meet sudden financial needs due to sickness, death in
the family, or loss of crops.104 Moreover, and to be alienated should
first be offered to a clan-member before any village-member can
purchase it, and in no case may land be sold to a non-member of
the ili.105
Land titles do not exist in the indigenous peoples' economic and
social system. The concept of individual land ownership under the
civil law is alien to them. Inherently colonial in origin, our
national land laws and governmental policies frown upon

indigenous claims to ancestral lands. Communal ownership is


looked upon as inferior, if not inexistent.106
III. THE IPRA IS A NOVEL PIECE OF LEGISLATION.
A. The Legislative History of the IPRA
It was to address the centuries-old neglect of the Philippine
indigenous peoples that the Tenth Congress of the Philippines, by
their joint efforts, passed and approved R.A. No. 8371, the
Indigenous Peoples Rights Act (IPRA) of 1997. The law was a
consolidation of two Bills- Senate Bill No. 1728 and House Bill No.
9125.
Principally sponsored by Senator Juan M. Flavier,107 Senate Bill No.
1728 was a consolidation of four proposed measures referred to the
Committees on Cultural Communities, Environment and Natural
Resources, Ways and Means, as well as Finance. It adopted almost en
toto the comprehensive version of Senate Bill Nos. 1476 and 1486
which was a result of six regional consultations and one national
consultation with indigenous peoples nationwide.108 At the Second
Regular Session of the Tenth Congress, Senator Flavier, in his
sponsorship speech, gave a background on the situation of indigenous
peoples in the Philippines, to wit:
"The Indigenous Cultural Communities, including the Bangsa Moro,
have long suffered from the dominance and neglect of government
controlled by the majority. Massive migration of their Christian
brothers to their homeland shrunk their territory and many of the
tribal Filipinos were pushed to the hinterlands. Resisting the intrusion,
dispossessed of their ancestral land and with the massive exploitation
of their natural resources by the elite among the migrant population,
they became marginalized. And the government has been an
indispensable party to this insidious conspiracy against the Indigenous
Cultural Communities (ICCs). It organized and supported the

resettlement of people to their ancestral land, which was massive


during the Commonwealth and early years of the Philippine Republic.
Pursuant to the Regalian Doctrine first introduced to our system by
Spain through the Royal Decree of 13 February 1894 or the Maura
Law, the government passed laws to legitimize the wholesale
landgrabbing and provide for easy titling or grant of lands to migrant
homesteaders within the traditional areas of the ICCs."109
Senator Flavier further declared:
"The IPs are the offsprings and heirs of the peoples who have first
inhabited and cared for the land long before any central government
was established. Their ancestors had territories over which they ruled
themselves and related with other tribes. These territories- the landinclude people, their dwelling, the mountains, the water, the air,
plants, forest and the animals. This is their environment in its totality.
Their existence as indigenous peoples is manifested in their own lives
through political, economic, socio-cultural and spiritual practices. The
IPs culture is the living and irrefutable proof to this.
Their survival depends on securing or acquiring land rights; asserting
their rights to it; and depending on it. Otherwise, IPs shall cease to
exist as distinct peoples."110
To recognize the rights of the indigenous peoples effectively, Senator
Flavier proposed a bill based on two postulates: (1) the concept of
native title; and (2) the principle of parens patriae.
According to Senator Flavier, "[w]hile our legal tradition subscribes
to the Regalian Doctrine reinstated in Section 2, Article XII of the
1987 Constitution," our "decisional laws" and jurisprudence passed by
the State have "made exception to the doctrine." This exception
was first laid down in the case of Cario v. Insular
Governmentwhere:

"x x x the court has recognized long occupancy of land by an


indigenous member of the cultural communities as one of private
ownership, which, in legal concept, is termed "native title." This
ruling has not been overturned. In fact, it was affirmed in subsequent
cases."111
Following Cario, the State passed Act No. 926, Act No. 2874, C.A.
No. 141, P.D. 705, P.D. 410, P.D. 1529, R.A. 6734 (the Organic Act
for the Autonomous Region of Muslim Mindanao). These laws,
explicitly or implicitly, and liberally or restrictively, recognized
"native title" or "private right" and the existence of ancestral lands and
domains. Despite the passage of these laws, however, Senator Flavier
continued:
"x x x the executive department of government since the American
occupation has not implemented the policy. In fact, it was more
honored in its breach than in its observance, its wanton disregard
shown during the period unto the Commonwealth and the early years
of the Philippine Republic when government organized and supported
massive resettlement of the people to the land of the ICCs."
Senate Bill No. 1728 seeks to genuinely recognize the IPs right to
own and possess their ancestral land. The bill was prepared also under
the principle of parens patriae inherent in the supreme power of the
State and deeply embedded in Philippine legal tradition. This
principle mandates that persons suffering from serious disadvantage
or handicap, which places them in a position of actual inequality in
their relation or transaction with others, are entitled to the protection
of the State.
Senate Bill No. 1728 was passed on Third Reading by twenty-one
(21) Senators voting in favor and none against, with no
abstention.112

House Bill No. 9125 was sponsored by Rep. Zapata, Chairman of


the Committee on Cultural Communities. It was originally authored
and subsequently presented and defended on the floor by Rep.
Gregorio Andolana of North Cotabato.113
Rep. Andolana's sponsorhip speech reads as follows:
"This Representation, as early as in the 8th Congress, filed a bill of
similar implications that would promote, recognize the rights of
indigenous cultural communities within the framework of national
unity and development.
Apart from this, Mr. Speaker, is our obligation, the government's
obligation to assure and ascertain that these rights shall be wellpreserved and the cultural traditions as well as the indigenous laws
that remained long before this Republic was established shall be
preserved and promoted. There is a need, Mr. Speaker, to look into
these matters seriously and early approval of the substitute bill shall
bring into reality the aspirations, the hope and the dreams of more
than 12 million Filipinos that they be considered in the mainstream of
the Philippine society as we fashion for the year 2000." 114
Rep. Andolana stressed that H.B. No. 9125 is based on the policy of
preservation as mandated in the Constitution. He also emphasized that
the rights of IPs to their land was enunciated in Cario v. Insular
Government which recognized the fact that they had vested rights
prior to the establishment of the Spanish and American regimes.115
After exhaustive interpellation, House Bill No. 9125, and its
corresponding amendments, was approved on Second Reading
with no objections.
IV. THE PROVISIONS OF THE IPRA DO NOT CONTRAVENE
THE CONSTITUTION.

A. Ancestral Domains and Ancestral Lands are the Private


Property of Indigenous Peoples and Do Not Constitute Part of the
Land of the Public Domain.
The IPRA grants to ICCs/IPs a distinct kind of ownership over
ancestral domains and ancestral lands.Ancestral lands are not the
same as ancestral domains. These are defined in Section 3 [a] and [b]
of the Indigenous Peoples Right Act, viz:
"Sec. 3 a) Ancestral Domains. - Subject to Section 56 hereof, refer to
all areas generally belonging to ICCs/IPs comprising lands, inland
waters, coastal areas, and natural resources therein, held under a claim
of ownership, occupied or possessed by ICCs/IPs by themselves or
through their ancestors, communally or individually since time
immemorial, continuously to the present except when interrupted by
war, force majeure or displacement by force, deceit, stealth or as a
consequence of government projects or any other voluntary dealings
entered into by government and private individuals/corporations, and
which are necessary to ensure their economic, social and cultural
welfare. It shall include ancestral lands, forests, pasture, residential,
agricultural, and other lands individually owned whether alienable
and disposable or otherwise, hunting grounds, burial grounds, worship
areas, bodies of water, mineral and other natural resources, and lands
which may no longer be exclusively occupied by ICCs/IPs but from
which they traditionally had access to for their subsistence and
traditional activities, particularly the home ranges of ICCs/IPs who
are still nomadic and/or shifting cultivators;
b) Ancestral Lands.- Subject to Section 56 hereof, refers to land
occupied, possessed and utilized by individuals, families and clans
who are members of the ICCs/IPs since time immemorial, by
themselves or through their predecessors-in-interest, under claims of
individual or traditional group ownership, continuously, to the present
except when interrupted by war, force majeure or displacement by
force, deceit, stealth, or as a consequence of government projects and

other voluntary dealings entered into by government and private


individuals/corporations, including, but not limited to, residential lots,
rice terraces or paddies, private forests, swidden farms and tree lots."

special task forces and ensured the issuance of Certificates of


Ancestral Land Claims (CALC's) and Certificates of Ancestral
Domain Claims (CADC's) to IPs.

Ancestral domains are all areas belonging to ICCs/IPs held under a


claim of ownership, occupied or possessed by ICCs/IPs by themselves
or through their ancestors, communally or individually since time
immemorial, continuously until the present, except when interrupted
by war, force majeure or displacement by force, deceit, stealth or as a
consequence of government projects or any other voluntary dealings
with government and/or private individuals or
corporations. Ancestral domains comprise lands, inland waters,
coastal areas, and natural resources therein and includes
ancestral lands, forests, pasture, residential, agricultural, and
other lands individually owned whether alienable or not, hunting
grounds, burial grounds, worship areas, bodies of water, mineral
and other natural resources. They also include lands which may no
longer be exclusively occupied by ICCs/IPs but from which they
traditionally had access to for their subsistence and traditional
activities, particularly the home ranges of ICCs/IPs who are still
nomadic and/or shifting cultivators.116

The identification and delineation of these ancestral domains and


lands is a power conferred by the IPRA on the National Commission
on Indigenous Peoples (NCIP).119 The guiding principle in
identification and delineation is self-delineation.120 This means that the
ICCs/IPs have a decisive role in determining the boundaries of their
domains and in all the activities pertinent thereto.121

Ancestral lands are lands held by the ICCs/IPs under the same
conditions as ancestral domains except that these are limited to lands
and that these lands are not merely occupied and possessed but are
also utilized by the ICCs/IPs under claims of individual or traditional
group ownership. These lands include but are not limited to residential
lots, rice terraces or paddies, private forests, swidden farms and tree
lots.117
The procedures for claiming ancestral domains and lands are similar
to the procedures embodied in Department Administrative Order
(DAO) No. 2, series of 1993, signed by then Secretary of the
Department of Environment and Natural Resources (DENR) Angel
Alcala.118 DAO No. 2 allowed the delineation of ancestral domains by

The procedure for the delineation and recognition of ancestral


domains is set forth in Sections 51 and 52 of the IPRA. The
identification, delineation and certification of ancestral lands is in
Section 53 of said law.
Upon due application and compliance with the procedure provided
under the law and upon finding by the NCIP that the application is
meritorious, the NCIP shall issue a Certificate of Ancestral Domain
Title (CADT) in the name of the community concerned.122 The
allocation of lands within the ancestral domain to any individual or
indigenous corporate (family or clan) claimants is left to the ICCs/IPs
concerned to decide in accordance with customs and
traditions.123 With respect to ancestral lands outside the ancestral
domain, the NCIP issues a Certificate of Ancestral Land Title
(CALT).124
CADT's and CALT's issued under the IPRA shall be registered by the
NCIP before the Register of Deeds in the place where the property is
situated.125
(1) Right to Ancestral Domains and Ancestral Lands: How
Acquired

The rights of the ICCs/IPs to their ancestral domains and ancestral


lands may be acquired in two modes: (1) bynative title over both
ancestral lands and domains; or (2) by torrens title under the
Public Land Act and the Land Registration Act with respect to
ancestral lands only.
(2) The Concept of Native Title
Native title is defined as:
"Sec. 3 [l]. Native Title- refers to pre-conquest rights to lands and
domains which, as far back as memory reaches, have been held under
a claim of private ownership by ICCs/IPs, have never been public
lands and are thusindisputably presumed to have been held that way
since before the Spanish Conquest."126
Native title refers to ICCs/IPs' preconquest rights to lands and
domains held under a claim of private ownership as far back as
memory reaches. These lands are deemed never to have been public
lands and are indisputably presumed to have been held that way since
before the Spanish Conquest. The rights of ICCs/IPs to their
ancestraldomains (which also include ancestral lands) by virtue of
native title shall be recognized and respected.127Formal recognition,
when solicited by ICCs/IPs concerned, shall be embodied in a
Certificate of Ancestral Domain Title (CADT), which shall recognize
the title of the concerned ICCs/IPs over the territories identified and
delineated.128
Like a torrens title, a CADT is evidence of private ownership of land
by native title. Native title, however, is a right of private ownership
peculiarly granted to ICCs/IPs over their ancestral lands and domains.
The IPRA categorically declares ancestral lands and domains held by
native title as never to have been public land. Domains and lands
held under native title are, therefore, indisputably presumed to have
never been public lands and are private.

(a) Cario v. Insular Government129


The concept of native title in the IPRA was taken from the 1909 case
of Cario v. Insular Government.130Cario firmly established a
concept of private land title that existed irrespective of any royal grant
from the State.
In 1903, Don Mateo Cario, an Ibaloi, sought to register with the land
registration court 146 hectares of land in Baguio Municipality,
Benguet Province. He claimed that this land had been possessed and
occupied by his ancestors since time immemorial; that his grandfather
built fences around the property for the holding of cattle and that his
father cultivated some parts of the land. Cario inherited the land in
accordance with Igorot custom. He tried to have the land adjusted
under the Spanish land laws, but no document issued from the
Spanish Crown.131In 1901, Cario obtained a possessory title to the
land under the Spanish Mortgage Law.132 The North American colonial
government, however, ignored his possessory title and built a public
road on the land prompting him to seek a Torrens title to his property
in the land registration court. While his petition was pending, a U.S.
military reservation133 was proclaimed over his land and, shortly
thereafter, a military detachment was detailed on the property with
orders to keep cattle and trespassers, including Cario, off the land. 134
In 1904, the land registration court granted Cario's application for
absolute ownership to the land. Both the Government of the
Philippine Islands and the U.S. Government appealed to the C.F.I. of
Benguet which reversed the land registration court and dismissed
Cario's application. The Philippine Supreme Court135 affirmed the
C.F.I. by applying the Valenton ruling. Cario took the case to the
U.S. Supreme Court.136 On one hand, the Philippine government
invoked the Regalian doctrine and contended that Cario failed to
comply with the provisions of the Royal Decree of June 25, 1880,
which required registration of land claims within a limited period of
time. Cario, on the other, asserted that he was the absolute owner of

the land jure gentium, and that the land never formed part of the
public domain.
In a unanimous decision written by Justice Oliver Wendell Holmes,
the U.S. Supreme Court held:
"It is true that Spain, in its earlier decrees, embodied the universal
feudal theory that all lands were held from the Crown, and perhaps
the general attitude of conquering nations toward people not
recognized as entitled to the treatment accorded to those in the same
zone of civilization with themselves. It is true, also, that in legal
theory, sovereignty is absolute, and that, as against foreign nations,
the United States may assert, as Spain asserted, absolute power. But it
does not follow that, as against the inhabitants of the Philippines, the
United States asserts that Spain had such power. When theory is left
on one side, sovereignty is a question of strength, and may vary in
degree. How far a new sovereign shall insist upon the theoretical
relation of the subjects to the head in the past, and how far it shall
recognize actual facts, are matters for it to decide."137
The U.S. Supreme Court noted that it need not accept Spanish
doctrines. The choice was with the new colonizer. Ultimately, the
matter had to be decided under U.S. law.
The Cario decision largely rested on the North American
constitutionalist's concept of "due process" as well as the pronounced
policy "to do justice to the natives."138 It was based on the strong
mandate extended to the Islands via the Philippine Bill of 1902 that
"No law shall be enacted in said islands which shall deprive any
person of life, liberty, or property without due process of law, or deny
to any person therein the equal protection of the laws." The court
declared:
"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 land. It is obvious that, however
stated, the reason for our taking over the Philippines was different. No
one, we suppose, would deny that, so far as consistent with paramount
necessities, 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. By the Organic Act of July 1, 1902, chapter 1369, section 12 (32
Statutes at Large, 691), all the property and rights acquired there by
the United States are to be administered 'for the benefit of the
inhabitants thereof.' It is reasonable to suppose that the attitude thus
assumed by the United States with regard to what was unquestionably
its own is also its attitude in deciding what it will claim for its own.
The same statute made a bill of rights, embodying the safeguards of
the Constitution, and, like the Constitution, extends those safeguards
to all. It provides that 'no law shall be enacted in said islands which
shall deprive any person of life, liberty, or property without due
process of law, or deny to any person therein the equal protection of
the laws.' In the light of the declaration that we have quoted from
section 12, it is hard to believe that the United States was ready to
declare in the next breath that "any person" did not embrace the
inhabitants of Benguet, or that it meant by "property" only that which
had become such by ceremonies of which presumably a large part of
the inhabitants never had heard, and that it proposed to treat as public
land what they, by native custom and by long association,- of the
profoundest factors in human thought,- regarded as their own."139
The Court went further:
"Every presumption is and ought to be against the government in a
case like the present. It might, perhaps, be proper and sufficient to
say that when, as far back as testimony or memory goes, the land
has been held by individuals under a claim of private ownership,
it will be presumed to have been held in the same way from before
the Spanish conquest, and never to have been public
land. Certainly in a case like this, if there is doubt or ambiguity in the

Spanish law, we ought to give the applicant the benefit of the


doubt."140

exist that owed nothing to the powers of Spain beyond this


recognition in their books." (Emphasis supplied).141

The court thus laid down the presumption of a certain title held (1) as
far back as testimony or memory went, and (2) under a claim of
private ownership. Land held by this title is presumed to "never have
been public land."

The court further stated that the Spanish "adjustment" proceedings


never held sway over unconquered territories. The wording of the
Spanish laws were not framed in a manner as to convey to the natives
that failure to register what to them has always been their own would
mean loss of such land. The registration requirement was "not to
confer title, but simply to establish it;" it was "not calculated to
convey to the mind of an Igorot chief the notion that ancient family
possessions were in danger, if he had read every word of it."

Against this presumption, the U.S. Supreme Court analyzed the


Spanish decrees upheld in the 1904 decision ofValenton v. Murciano.
The U.S. Supreme Court found no proof that the Spanish decrees
did not honor native title. On the contrary, the decrees discussed
in Valenton appeared to recognize that the natives owned some land,
irrespective of any royal grant. The Regalian doctrine declared in the
preamble of the Recopilacion was all "theory and discourse" and it
was observed that titles were admitted to exist beyond the powers of
the Crown, viz:
"If the applicant's case is to be tried by the law of Spain, we do
not discover such clear proof that it was bad by that law as to
satisfy us that he does not own the land. To begin with, the older
decrees and laws cited by the counsel for the plaintiff in error
seem to indicate pretty clearly that the natives were recognized as
owning some lands, irrespective of any royal grant. In other words,
Spain did not assume to convert all the native inhabitants of the
Philippines into trespassers or even into tenants at will. For instance,
Book 4, title 12, Law 14 of the the Recopilacion de Leyes de las
Indias, cited for a contrary conclusion in Valenton v. Murciano, 3
Philippine 537, while it commands viceroys and others, when it seems
proper, to call for the exhibition of grants, directs them to confirm
those who hold by good grants or justa prescripcion. It is true that it
begins by the characteristic assertion of feudal overlordship and
the origin of all titles in the King or his predecessors. That was
theory and discourse. The fact was that titles were admitted to

By recognizing this kind of title, the court clearly repudiated the


doctrine of Valenton. It was frank enough, however, to admit the
possibility that the applicant might have been deprived of his land
under Spanish law because of the inherent ambiguity of the decrees
and concomitantly, the various interpretations which may be given
them. But precisely because of the ambiguity and of the strong
"due process mandate" of the Constitution, the court validated
this kind of title.142 This title was sufficient, even without government
administrative action, and entitled the holder to a Torrens certificate.
Justice Holmes explained:
"It will be perceived that the rights of the applicant under the Spanish
law present a problem not without difficulties for courts of a legal
tradition. We have deemed it proper on that account to notice the
possible effect of the change of sovereignty and the act of Congress
establishing the fundamental principles now to be observed. Upon a
consideration of the whole case we are of the opinion that law and
justice require that the applicant should be granted what he seeks, and
should not be deprived of what, by the practice and belief of those
among whom he lived, was his property, through a refined
interpretation of an almost forgotten law of Spain."143

Thus, the court ruled in favor of Cario and ordered the


registration of the 148 hectares in Baguio Municipality in his
name.144
Examining Cario closer, the U.S. Supreme Court did not
categorically refer to the title it upheld as "native title." It simply said:
"The Province of Benguet was inhabited by a tribe that the
Solicitor-General, in his argument, characterized as a savage tribe
that never was brought under the civil or military government of
the Spanish Crown. It seems probable, if not certain, that the
Spanish officials would not have granted to anyone in that
province the registration to which formerly the plaintiff was
entitled by the Spanish Laws, and which would have made his
title beyond question good. Whatever may have been the technical
position of Spain it does not follow that, in the view of the United
States, he had lost all rights and was a mere trespasser when the
present government seized his land. The argument to that effect seems
to amount to a denial of native titles through an important part of the
Island of Luzon, at least, for the want of ceremonies which the
Spaniards would not have permitted and had not the power to
enforce."145
This is the only instance when Justice Holmes used the term "native
title" in the entire length of the Cariodecision. It is observed that the
widespread use of the term "native title" may be traced to Professor
Owen James Lynch, Jr., a Visiting Professor at the University of the
Philippines College of Law from the Yale University Law School. In
1982, Prof. Lynch published an article in the Philippine Law
Journal entitled Native Title, Private Right and Tribal Land
Law.146 This article was made after Professor Lynch visited over thirty
tribal communities throughout the country and studied the origin and
development of Philippine land laws.147 He
discussed Carioextensively and used the term "native title" to refer

to Cario's title as discussed and upheld by the U.S. Supreme Court in


said case.
(b) Indian Title
In a footnote in the same article, Professor Lynch stated that the
concept of "native title" as defined by Justice Holmes in Cario "is
conceptually similar to "aboriginal title" of the American
Indians.148 This is not surprising, according to Prof. Lynch,
considering that during the American regime, government policy
towards ICCs/IPs was consistently made in reference to native
Americans.149 This was clearly demonstrated in the case of Rubi v.
Provincial Board of Mindoro.150
In Rubi, the Provincial Board of Mindoro adopted a Resolution
authorizing the provincial governor to remove the Mangyans from
their domains and place them in a permanent reservation in Sitio
Tigbao, Lake Naujan. Any Mangyan who refused to comply was to be
imprisoned. Rubi and some Mangyans, including one who was
imprisoned for trying to escape from the reservation, filed for habeas
corpus claiming deprivation of liberty under the Board Resolution.
This Court denied the petition on the ground of police power. It
upheld government policy promoting the idea that a permanent
settlement was the only successful method for educating the
Mangyans, introducing civilized customs, improving their health and
morals, and protecting the public forests in which they
roamed.151 Speaking through Justice Malcolm, the court said:
"Reference was made in the President's instructions to the
Commission to the policy adopted by the United States for the Indian
Tribes. The methods followed by the Government of the Philippine
Islands in its dealings with the so-called non-Christian people is said,
on argument, to be practically identical with that followed by the
United States Government in its dealings with the Indian tribes.

Valuable lessons, it is insisted, can be derived by an investigation of


the American-Indian policy.
From the beginning of the United States, and even before, the Indians
have been treated as "in a state of pupilage." The recognized relation
between the Government of the United States and the Indians may be
described as that of guardian and ward. It is for the Congress to
determine when and how the guardianship shall be terminated. The
Indians are always subject to the plenary authority of the United
States.152
x x x.
As to the second point, the facts in the Standing Bear case and the
Rubi case are not exactly identical. But even admitting similarity of
facts, yet it is known to all that Indian reservations do exist in the
United States, that Indians have been taken from different parts of the
country and placed on these reservations, without any previous
consultation as to their own wishes, and that, when once so located,
they have been made to remain on the reservation for their own good
and for the general good of the country. If any lesson can be drawn
from the Indian policy of the United States, it is that the determination
of this policy is for the legislative and executive branches of the
government and that when once so decided upon, the courts should
not interfere to upset a carefully planned governmental system.
Perhaps, just as many forceful reasons exist for the segregation of the
Manguianes in Mindoro as existed for the segregation of the different
Indian tribes in the United States."153
Rubi applied the concept of Indian land grants or reservations in the
Philippines. An Indian reservation is a part of the public domain set
apart by proper authority for the use and occupation of a tribe or tribes
of Indians.154 It may be set apart by an act of Congress, by treaty, or by
executive order, but it cannot be established by custom and
prescription.155

Indian title to land, however, is not limited to land grants or


reservations. It also covers the "aboriginal right of possession or
occupancy."156 The aboriginal right of possession depends on the
actual occupancy of the lands in question by the tribe or nation as
their ancestral home, in the sense that such lands constitute definable
territory occupied exclusively by the particular tribe or nation.157 It is a
right which exists apart from any treaty, statute, or other governmental
action, although in numerous instances treaties have been negotiated
with Indian tribes, recognizing their aboriginal possession and
delimiting their occupancy rights or settling and adjusting their
boundaries.158
American jurisprudence recognizes the Indians' or native
Americans' rights to land they have held and occupied before the
"discovery" of the Americas by the Europeans. The earliest
definitive statement by the U.S. Supreme Court on the nature of
aboriginal title was made in 1823 in Johnson & Graham's Lessee
v. M'Intosh.159
In Johnson, the plaintiffs claimed the land in question under two (2)
grants made by the chiefs of two (2) Indian tribes. The U.S. Supreme
Court refused to recognize this conveyance, the plaintiffs being
private persons. The only conveyance that was recognized was that
made by the Indians to the government of the European discoverer.
Speaking for the court, Chief Justice Marshall pointed out that the
potentates of the old world believed that they had made ample
compensation to the inhabitants of the new world by bestowing
civilization and Christianity upon them; but in addition, said the court,
they found it necessary, in order to avoid conflicting settlements and
consequent war, to establish the principle that discovery gives title to
the government by whose subjects, or by whose authority, the
discovery was made, against all other European governments,
which title might be consummated by possession.160 The exclusion
of all other Europeans gave to the nation making the discovery the
sole right of acquiring the soil from the natives and establishing

settlements upon it. As regards the natives, the court further stated
that:
"Those relations which were to exist between the discoverer and the
natives were to be regulated by themselves. The rights thus acquired
being exclusive, no other power could interpose between them.
In the establishment of these relations, the rights of the
original inhabitants were, in no instance, entirely disregarded; but
were necessarily, to a considerable extent, impaired. They were
admitted to be the rightful occupants of the soil, with a legal as
well as just claim to retain possession of it, and to use itaccording
to their own discretion; but their rights to complete sovereignty, as
independent nations, were necessarily diminished, and their power to
dispose of the soil at their own will, to whomsoever they pleased, was
denied by the fundamental principle that discovery gave exclusive
title to those who made it.
While the different nations of Europe respected the right of the
natives as occupants, they asserted the ultimate dominion to be in
themselves; and claimed and exercised, as a consequence of this
ultimate dominion, a power to grant the soil, while yet in
possession of the natives. These grants have been understood by
all to convey a title to the grantees, subject only to the Indian
right of occupancy."161
Thus, the discoverer of new territory was deemed to have obtained
the exclusive right to acquire Indian land and extinguish Indian titles.
Only to the discoverer- whether to England, France, Spain or Hollanddid this right belong and not to any other nation or private person. The
mere acquisition of the right nonetheless did not extinguish Indian
claims to land. Rather, until the discoverer, by purchase or conquest,
exercised its right, the concerned Indians were recognized as the
"rightful occupants of the soil, with a legal as well as just claim to
retain possession of it." Grants made by the discoverer to her subjects

of lands occupied by the Indians were held to convey a title to the


grantees, subject only to the Indian right of occupancy. Once the
discoverer purchased the land from the Indians or conquered them, it
was only then that the discoverer gained an absolute title unrestricted
by Indian rights.
The court concluded, in essence, that a grant of Indian lands by
Indians could not convey a title paramount to the title of the United
States itself to other parties, saying:
"It has never been contended that the Indian title amounted to
nothing. Their right of possession has never been questioned. The
claim of government extends to the complete ultimate title,
charged with this right of possession, and to the exclusive power
of acquiring that right."162
It has been said that the history of America, from its discovery to the
present day, proves the universal recognition of this principle.163
The Johnson doctrine was a compromise. It protected Indian rights
and their native lands without having to invalidate conveyances made
by the government to many U.S. citizens.164
Johnson was reiterated in the case of Worcester v. Georgia.165 In this
case, the State of Georgia enacted a law requiring all white persons
residing within the Cherokee nation to obtain a license or permit from
the Governor of Georgia; and any violation of the law was deemed a
high misdemeanor. The plaintiffs, who were white missionaries, did
not obtain said license and were thus charged with a violation of the
Act.
The U.S. Supreme Court declared the Act as unconstitutional for
interfering with the treaties established between the United States and
the Cherokee nation as well as the Acts of Congress regulating

intercourse with them. It characterized the relationship between the


United States government and the Indians as:
"The Indian nations were, from their situation, necessarily dependent
on some foreign potentate for the supply of their essential wants, and
for their protection from lawless and injurious intrusions into their
country. That power was naturally termed their protector. They had
been arranged under the protection of Great Britain; but the
extinguishment of the British power in their neighborhood, and the
establishment of that of the United States in its place, led naturally to
the declaration, on the part of the Cherokees, that they were under the
protection of the United States, and of no other power. They assumed
the relation with the United States which had before subsisted with
Great Britain.
This relation was that of a nation claiming and receiving the
protection of one more powerful, not that of individuals abandoning
their national character, and submitting as subjects to the laws of a
master."166
It was the policy of the U.S. government to treat the Indians as nations
with distinct territorial boundaries and recognize their right of
occupancy over all the lands within their domains. Thus:
"From the commencement of our government Congress has passed
acts to regulate trade and intercourse with the Indians; which treat
them as nations, respect their rights, and manifest a firm purpose to
afford that protection which treaties stipulate. All these acts, and
especially that of 1802, which is still in force, manifestly consider the
several Indian nations as distinct political communities, having
territorial boundaries, within which their authority is exclusive,
and having a right to all the lands within those boundaries, which
is not only acknowledged, but guaranteed by the United States.
x x x.

"The Indian nations had always been considered as distinct,


independent political communities, retaining their original
natural rights, as the undisputed possessors of the soil from time
immemorial,with the single exception of that imposed by irresistible
power, which excluded them from intercourse with any other
European potentate than the first discoverer of the coast of the
particular region claimed: and this was a restriction which those
European potentates imposed on themselves, as well as on the
Indians. The very term "nation," so generally applied to them, means
"a people distinct from others." x x x.167
The Cherokee nation, then, is a distinct community, occupying its
own territory, with boundaries accurately described, in which the laws
of Georgia can have no force, and which the citizens of Georgia have
no right to enter but with the assent of the Cherokees themselves or in
conformity with treaties and with the acts of Congress. The whole
intercourse between the United States and this nation is, by our
Constitution and laws, vested in the government of the United
States."168
The discovery of the American continent gave title to the government
of the discoverer as against all other European governments.
Designated as the naked fee,169 this title was to be consummated by
possession and was subject to the Indian title of occupancy. The
discoverer acknowledged the Indians' legal and just claim to retain
possession of the land, the Indians being the original inhabitants of the
land. The discoverer nonetheless asserted the exclusive right to
acquire the Indians' land- either by purchase, "defensive" conquest, or
cession- and in so doing, extinguish the Indian title. Only the
discoverer could extinguish Indian title because it alone asserted
ultimate dominion in itself. Thus, while the different nations of
Europe respected the rights of the natives as occupants, they all
asserted the ultimate dominion and title to be in themselves.170

As early as the 19th century, it became accepted doctrine that


although fee title to the lands occupied by the Indians when the
colonists arrived became vested in the sovereign- first the
discovering European nation and later the original 13 States and
the United States- a right of occupancy in the Indian tribes was
nevertheless recognized. The Federal Government continued the
policy of respecting the Indian right of occupancy, sometimes called
Indian title, which it accorded the protection of complete
ownership.171But this aboriginal Indian interest simply constitutes
"permission" from the whites to occupy the land, and means mere
possession not specifically recognized as ownership by Congress.172 It
is clear that this right of occupancy based upon aboriginal possession
is not a property right.173 It is vulnerable to affirmative action by the
federal government who, as sovereign, possessed exclusive power to
extinguish the right of occupancy at will.174 Thus, aboriginal title is
not the same as legal title. Aboriginal title rests on actual, exclusive
and continuous use and occupancy for a long time.175 It entails that
land owned by Indian title must be used within the tribe, subject to its
laws and customs, and cannot be sold to another sovereign
government nor to any citizen.176 Such title as Indians have to possess
and occupy land is in the tribe, and not in the individual Indian; the
right of individual Indians to share in the tribal property usually
depends upon tribal membership, the property of the tribe generally
being held in communal ownership.177

The American judiciary struggled for more than 200 years with
the ancestral land claims of indigenous Americans.182 And two
things are clear. First, aboriginal title is recognized. Second,
indigenous property systems are also recognized. From a legal point
of view, certain benefits can be drawn from a comparison of
Philippine IPs to native Americans.183 Despite the similarities between
native title and aboriginal title, however, there are at present some
misgivings on whether jurisprudence on American Indians may be
cited authoritatively in the Philippines. The U.S. recognizes the
possessory rights of the Indians over their land; title to the land,
however, is deemed to have passed to the U.S. as successor of the
discoverer. The aboriginal title of ownership is not specifically
recognized as ownership by action authorized by Congress.184 The
protection of aboriginal title merely guards against encroachment by
persons other than the Federal Government.185 Although there are
criticisms against the refusal to recognize the native Americans'
ownership of these lands,186 the power of the State to extinguish these
titles has remained firmly entrenched.187

As a rule, Indian lands are not included in the term "public lands,"
which is ordinarily used to designate such lands as are subject to sale
or other disposal under general laws.178 Indian land which has been
abandoned is deemed to fall into the public domain.179 On the other
hand, an Indian reservation is a part of the public domain set apart for
the use and occupation of a tribe of Indians.180 Once set apart by
proper authority, the reservation ceases to be public land, and until the
Indian title is extinguished, no one but Congress can initiate any
preferential right on, or restrict the nation's power to dispose of,
them.181

(c) Why the Cario doctrine is unique

Under the IPRA, the Philippine State is not barred form asserting
sovereignty over the ancestral domains and ancestral lands.188 The
IPRA, however, is still in its infancy and any similarities between its
application in the Philippines vis--vis American Jurisprudence on
aboriginal title will depend on the peculiar facts of each case.

In the Philippines, the concept of native title first upheld


in Cario and enshrined in the IPRA grants ownership, albeit in
limited form, of the land to the ICCs/IPs. Native title presumes that
the land is private and was never public. Cario is the only case that
specifically and categorically recognizes native title. The long line
of cases citing Cario did not touch on native title and the private
character of ancestral domains and lands. Cario was cited by the
succeeding cases to support the concept of acquisitive prescription

under the Public Land Act which is a different matter


altogether. Under the Public Land Act, land sought to be registered
must be public agricultural land. When the conditions specified in
Section 48 [b] of the Public Land Act are complied with, the
possessor of the land is deemed to have acquired, by operation of law,
a right to a grant of the land.189 The land ceases to be part of the public
domain,190 ipso jure,191 and is converted to private property by the mere
lapse or completion of the prescribed statutory period.
It was only in the case of Oh Cho v. Director of Lands that the
court declared that the rule that all lands that were not acquired from
the government, either by purchase or grant, belong to the public
domain has an exception. This exception would be any land that
should have been in the possession of an occupant and of his
predecessors-in-interest since time immemorial. It is this kind of
possession that would justify the presumption that the land had never
been part of the public domain or that it had been private property
even before the Spanish conquest.193 Oh Cho, however, was decided
under the provisions of the Public Land Act and Cario was cited to
support the applicant's claim of acquisitive prescription under the said
Act.
192

All these years, Cario had been quoted out of context simply to
justify long, continuous, open and adverse possession in the concept
of owner of public agricultural land. It is this long, continuous, open
and adverse possession in the concept of owner of thirty years both
for ordinary citizens194 and members of the national cultural
minorities195 that converts the land from public into private and entitles
the registrant to a torrens certificate of title.
(3) The Option of Securing a Torrens Title to the Ancestral Land
Indicates that the Land is Private.
The private character of ancestral lands and domains as laid down in
the IPRA is further strengthened by the option given to individual

ICCs/IPs over their individually-owned ancestral lands. For


purposes of registration under the Public Land Act and the Land
Registration Act, the IPRA expressly converts ancestral land into
public agricultural land which may be disposed of by the State.
The necessary implication is thatancestral land is private. It,
however, has to be first converted to public agricultural land simply
for registration purposes. To wit:
"Sec. 12. Option to Secure Certificate of Title Under Commonwealth
Act 141, as amended, or the Land Registration Act 496- Individual
members of cultural communities, with respect to their individuallyowned ancestral lands who, by themselves or through their
predecessors-in-interest, have been in continuous possession and
occupation of the same in the concept of owner since time
immemorial or for a period of not less than thirty (30) years
immediately preceding the approval of this Act and uncontested by
the members of the same ICCs/IPs shall have the option to secure title
to their ancestral lands under the provisions of Commonwealth Act
141, as amended, or the Land Registration Act 496.
For this purpose, said individually-owned ancestral lands, which are
agricultural in character and actually used for agricultural, residential,
pasture, and tree farming purposes, including those with a slope of
eighteen percent (18%) or more, are hereby classified as alienable and
disposable agricultural lands.
The option granted under this section shall be exercised within twenty
(20) years from the approval of this Act."196
ICCs/IPs are given the option to secure a torrens certificate of title
over their individually-owned ancestral lands. This option is limited to
ancestral lands only, not domains, and such lands must be
individually, not communally, owned.

Ancestral lands that are owned by individual members of ICCs/IPs


who, by themselves or through their predecessors-in-interest, have
been in continuous possession and occupation of the same in the
concept of owner since time immemorial197 or for a period of not less
than 30 years, which claims are uncontested by the members of the
same ICCs/IPs, may be registered under C.A. 141, otherwise known
as the Public Land Act, or Act 496, the Land Registration Act. For
purposes of registration, the individually-owned ancestral lands are
classified as alienable and disposable agricultural lands of the public
domain, provided, they are agricultural in character and are actually
used for agricultural, residential, pasture and tree farming purposes.
These lands shall be classified as public agricultural lands regardless
of whether they have a slope of 18% or more.
The classification of ancestral land as public agricultural land is in
compliance with the requirements of the Public Land Act and the
Land Registration Act. C.A. 141, the Public Land Act, deals
specifically with lands of the public domain.198 Its provisions apply to
those lands "declared open to disposition or concession" x x x "which
have not been reserved for public or quasi-public purposes, nor
appropriated by the Government, nor in any manner become private
property, nor those on which a private right authorized and recognized
by this Act or any other valid law x x x or which having been reserved
or appropriated, have ceased to be so."199 Act 496, the Land
Registration Act, allows registration only of private lands and public
agricultural lands. Since ancestral domains and lands are private, if
the ICC/IP wants to avail of the benefits of C.A. 141 and Act 496,
the IPRA itself converts his ancestral land, regardless of whether
the land has a slope of eighteen per cent (18%) or over,200 from
private to public agricultural land for proper disposition.
The option to register land under the Public Land Act and the Land
Registration Act has nonetheless a limited period. This option must be
exercised within twenty (20) years from October 29, 1997, the date of
approval of the IPRA.

Thus, ancestral lands and ancestral domains are not part of the
lands of the public domain. They are private and belong to the
ICCs/IPs. Section 3 of Article XII on National Economy and
Patrimony of the 1987 Constitution classifies lands of the public
domain into four categories: (a) agricultural, (b) forest or timber, (c)
mineral lands, and (d) national parks. Section 5 of the same
Article XII mentions ancestral lands and ancestral domains but it
does not classify them under any of the said four categories. To
classify them as public lands under any one of the four classes will
render the entire IPRA law a nullity. The spirit of the IPRA lies in
the distinct concept of ancestral domains and ancestral lands. The
IPRA addresses the major problem of the ICCs/IPs which is loss of
land. Land and space are of vital concern in terms of sheer survival of
the ICCs/IPs.201
The 1987 Constitution mandates the State to "protect the rights of
indigenous cultural communities to their ancestral lands" and
that "Congress provide for the applicability of customary laws x x
x in determining the ownership and extent of ancestral
domain."202 It is the recognition of the ICCs/IPs distinct rights of
ownership over their ancestral domains and lands that breathes
life into this constitutional mandate.
B. The right of ownership and possession by the ICCs/IPs of their
ancestral domains is a limited form of ownership and does not
include the right to alienate the same.
Registration under the Public Land Act and Land Registration Act
recognizes the concept of ownership under thecivil law. This
ownership is based on adverse possession for a specified period, and
harkens to Section 44 of the Public Land Act on administrative
legalization (free patent) of imperfect or incomplete titles and Section
48 (b) and (c) of the same Act on the judicial confirmation of
imperfect or incomplete titles. Thus:

"Sec. 44. Any natural-born citizen of the Philippines who is not the
owner of more than twenty-four hectares and who since July fourth,
1926 or prior thereto, has continuously occupied and cultivated, either
by himself or through his predecessors-in-interest, a tract or tracts of
agricultural public lands subject to disposition, or who shall have paid
the real estate tax thereon while the same has not been occupied by
any person shall be entitled, under the provisions of this chapter, to
have a free patent issued to him for such tract or tracts of such land
not to exceed twenty-four hectares.
A member of the national cultural minorities who has
continuously occupied and cultivated, either by himself or
through his predecessors-in-interest, a tract or tracts of land,
whether disposable or not since July 4, 1955, shall be entitled to
the right granted in the preceding paragraph of this
section:Provided, That at the time he files his free patent
application he is not the owner of any real property secured or
disposable under the provision of the Public Land Law.203
x x x.
"Sec. 48. The following described citizens of the Philippines,
occupying lands of the public domain or claiming to own any such
lands or an interest therein, but whose titles have not been perfected
or completed, may apply to the Court of First Instance of the province
where the land is located for confirmation of their claims and the
issuance of a certificate of title therefor, under the Land Registration
Act, to wit:
(a) [perfection of Spanish titles] xxx.
(b) Those who by themselves or through their predecessors-ininterest have been in open, continuous, exclusive, and
notorious possession and occupation of agricultural lands of
the public domain, under a bona fide claim of acquisition or

ownership, for at least thirty years immediately preceding the


filing of the application for confirmation of title except when
prevented by war or force majeure. These shall be conclusively
presumed to have performed all the conditions essential to a
Government grant and shall be entitled to a certificate of title
under the provisions of this Chapter.
(c) Members of the national cultural minorities who by
themselves or through their predecessors-in-interest have
been in open, continuous, exclusive and notorious
possession and occupation of lands of the public domain
suitable to agriculture, whether disposable or not, under a
bona fide claim of ownership for at least 30 years shall be
entitled to the rights granted in sub-section (b) hereof."204
Registration under the foregoing provisions presumes that the land
was originally public agricultural land but because of adverse
possession since July 4, 1955 (free patent) or at least thirty years
(judicial confirmation), the land has become private. Open, adverse,
public and continuous possession is sufficient, provided, the possessor
makes proper application therefor. The possession has to be confirmed
judicially or administratively after which a torrens title is issued.
A torrens title recognizes the owner whose name appears in the
certificate as entitled to all the rights of ownership under the civil law.
The Civil Code of the Philippines defines ownership in Articles 427,
428 and 429. This concept is based on Roman Law which the
Spaniards introduced to the Philippines through the Civil Code of
1889. Ownership, under Roman Law, may be exercised over things or
rights. It primarily includes the right of the owner to enjoy and
dispose of the thing owned. And the right to enjoy and dispose of the
thing includes the right to receive from the thing what it
produces,205 the right to consume the thing by its use,206 the right to
alienate, encumber, transform or even destroy the thing owned,207 and

the right to exclude from the possession of the thing owned by any
other person to whom the owner has not transmitted such thing.208

may be destructive not only of customary law of the community but


of the very community itself.212

1. The Indigenous Concept of Ownership and Customary Law.

Communal rights over land are not the same as corporate rights
over real property, much less corporate condominium rights. A
corporation can exist only for a maximum of fifty (50) years subject
to an extension of another fifty years in any single instance.213 Every
stockholder has the right to disassociate himself from the
corporation.214 Moreover, the corporation itself may be dissolved
voluntarily or involuntarily.215

Ownership of ancestral domains by native title does not entitle the


ICC/IP to a torrens title but to a Certificate of Ancestral Domain Title
(CADT). The CADT formally recognizes the indigenous concept of
ownership of the ICCs/IPs over their ancestral domain. Thus:
"Sec. 5. Indigenous concept of ownership.- Indigenous concept of
ownership sustains the view that ancestral domains and all resources
found therein shall serve as the material bases of their cultural
integrity. The indigenous concept of ownership generally holds that
ancestral domains are the ICCs/IPs private but community property
which belongs to all generations and therefore cannot be sold,
disposed or destroyed. It likewise covers sustainable traditional
resource rights."
The right of ownership and possession of the ICCs/IPs to their
ancestral domains is held under the indigenous concept of
ownership. This concept maintains the view that ancestral
domains are the ICCs/IPs private but community property. It is
private simply because it is not part of the public domain. But its
private character ends there. The ancestral domain is owned in
common by the ICCs/IPs and not by one particular person. The
IPRA itself provides that areas within the ancestral domains, whether
delineated or not, are presumed to be communally held.209 These
communal rights, however, are not exactly the same as coownership rights under the Civil Code.210 Co-ownership gives any
co-owner the right to demand partition of the property held in
common. The Civil Code expressly provides that "no co-owner shall
be obliged to remain in the co-ownership." Each co-owner may
demand at any time the partition of the thing in common, insofar as
his share is concerned.211 To allow such a right over ancestral domains

Communal rights to the land are held not only by the present
possessors of the land but extends to all generations of the
ICCs/IPs, past, present and future, to the domain. This is the
reason why the ancestral domain must be kept within the ICCs/IPs
themselves. The domain cannot be transferred, sold or conveyed to
other persons. It belongs to the ICCs/IPs as a community.
Ancestral lands are also held under the indigenous concept of
ownership. The lands are communal. These lands, however, may be
transferred subject to the following limitations: (a) only to the
members of the same ICCs/IPs; (b) in accord with customary laws
and traditions; and (c) subject to the right of redemption of the
ICCs/IPs for a period of 15 years if the land was transferred to a nonmember of the ICCs/IPs.
Following the constitutional mandate that "customary law govern
property rights or relations in determining the ownership and extent of
ancestral domains,"216 the IPRA, by legislative fiat, introduces a
new concept of ownership. This is a concept that has long existed
under customary law.217
Custom, from which customary law is derived, is also recognized
under the Civil Code as a source of law.218 Some articles of the Civil
Code expressly provide that custom should be applied in cases where

no codal provision is applicable.219 In other words, in the absence of


any applicable provision in the Civil Code, custom, when duly
proven, can define rights and liabilities.220
Customary law is a primary, not secondary, source of rights under
the IPRA and uniquely applies to ICCs/IPs. Its recognition does not
depend on the absence of a specific provision in the civil law. The
indigenous concept of ownership under customary law is specifically
acknowledged and recognized, and coexists with the civil law concept
and the laws on land titling and land registration.221
To be sure, the indigenous concept of ownership exists even
without a paper title. The CADT is merely a "formal recognition" of
native title. This is clear from Section 11 of the IPRA, to wit:
"Sec. 11. Recognition of Ancestral Domain Rights.- The rights of
ICCs/IPs to their ancestral domains by virtue of Native Title shall be
recognized and respected. Formal recognition, when solicited by
ICCs/IPs concerned shall be embodied in a Certificate of Ancestral
Domain Title, which shall recognize the title of the concerned
ICCs/IPs over the territories identified and delineated."
The moral import of ancestral domain, native land or being native is
"belongingness" to the land, being people of the land- by sheer force
of having sprung from the land since time beyond recall, and the
faithful nurture of the land by the sweat of one's brow. This is fidelity
of usufructuary relation to the land- the possession of stewardship
through perduring, intimate tillage, and the mutuality of blessings
between man and land; from man, care for land; from the land,
sustenance for man.222
C. Sections 7 (a), 7 (b) and 57 of the IPRA Do Not Violate the
Regalian Doctrine Enshrined in Section 2, Article XII of the 1987
Constitution.

1. The Rights of ICCs/IPs Over Their Ancestral Domains and


Lands
The IPRA grants the ICCs/IPs several rights over their ancestral
domains and ancestral lands. Section 7 provides for the rights over
ancestral domains:
"Sec. 7. Rights to Ancestral Domains.- The rights of ownership and
possession of ICCs/IPs to their ancestral domains shall be recognized
and protected. Such rights include:
a) Right of Ownership.- The right to claim ownership over
lands, bodies of water traditionally and actually occupied
by ICCs/IPs, sacred places, traditional hunting and fishing
grounds, and all improvements made by them at any time
within the domains;
b) Right to Develop Lands and Natural Resources.- Subject to
Section 56 hereof, the right to develop, control and use
lands and territories traditionally occupied, owned, or
used; to manage and conserve natural resources within the
territories and uphold the responsibilities for future
generations; to benefit and share the profits from allocation
and utilization of the natural resources found therein; the
right to negotiate the terms and conditions for the
exploration of natural resources in the areas for the
purpose of ensuring ecological, environmental protection
and the conservation measures, pursuant to national and
customary laws; the right to an informed and intelligent
participation in the formulation and implementation of any
project, government or private, that will affect or impact upon
the ancestral domains and to receive just and fair compensation
for any damages which they may sustain as a result of the
project; and the right to effective measures by the government

to prevent any interference with, alienation and encroachment


upon these rights;"
c) Right to Stay in the Territories.- The right to stay in the
territory and not to be removed therefrom. No ICCs/IPs will be
relocated without their free and prior informed consent, nor
through any means other than eminent domain. x x x;
d) Right in Case of Displacement.- In case displacement occurs
as a result of natural catastrophes, the State shall endeavor to
resettle the displaced ICCs/IPs in suitable areas where they can
have temporary life support systems: x x x;
e) Right to Regulate the Entry of Migrants.- Right to regulate
the entry of migrant settlers and organizations into their
domains;
f) Right to Safe and Clean Air and Water.-For this purpose, the
ICCs/IPs shall have access to integrated systems for the
management of their inland waters and air space;
g) Right to Claim Parts of Reservations.- The right to claim
parts of the ancestral domains which have been reserved for
various purposes, except those reserved and intended for
common and public welfare and service;
h) Right to Resolve Conflict.- Right to resolve land conflicts in
accordance with customary laws of the area where the land is
located, and only in default thereof shall the complaints be
submitted to amicable settlement and to the Courts of Justice
whenever necessary."
Section 8 provides for the rights over ancestral lands:

"Sec. 8. Rights to Ancestral Lands.- The right of ownership and


possession of the ICCs/IPs to their ancestral lands shall be recognized
and protected.
a) Right to transfer land/property.- Such right shall include the
right to transfer land or property rights to/among members of
the same ICCs/IPs, subject to customary laws and traditions of
the community concerned.
b) Right to Redemption.- In cases where it is shown that the
transfer of land/property rights by virtue of any agreement or
devise, to a non-member of the concerned ICCs/IPs is tainted
by the vitiated consent of the ICCs/IPs, or is transferred for an
unconscionable consideration or price, the transferor ICC/IP
shall have the right to redeem the same within a period not
exceeding fifteen (15) years from the date of transfer."
Section 7 (a) defines the ICCs/IPs the right of ownership over their
ancestral domains which covers (a) lands, (b) bodies of water
traditionally and actually occupied by the ICCs/IPs, (c) sacred places,
(d) traditional hunting and fishing grounds, and (e) all improvements
made by them at any time within the domains. The right of
ownership includes the following rights: (1) the right to develop
lands and natural resources; (b) the right to stay in the territories; (c)
the right to resettlement in case of displacement; (d) the right to
regulate the entry of migrants; (e) the right to safe and clean air and
water; (f) the right to claim parts of the ancestral domains as
reservations; and (g) the right to resolve conflict in accordance with
customary laws.
Section 8 governs their rights to ancestral lands. Unlike ownership
over the ancestral domains, Section 8 gives the ICCs/IPs also the right
to transfer the land or property rights to members of the same
ICCs/IPs or non-members thereof. This is in keeping with the option

given to ICCs/IPs to secure a torrens title over the ancestrallands, but


not to domains.
2. The Right of ICCs/IPs to Develop Lands and Natural Resources
Within the Ancestral Domains Does Not Deprive the State of
Ownership Over the Natural Resources and Control and Supervision
in their Development and Exploitation.
The Regalian doctrine on the ownership, management and utilization
of natural resources is declared in Section 2, Article XII of the 1987
Constitution, viz:
"Sec. 2. All lands of the public domain, waters, minerals, coal,
petroleum, and other mineral oils, all forces of potential energy,
fisheries, forests or timber, wildlife, flora and fauna, and other
natural resources are owned by the State. With the exception of
agricultural lands, all other natural resources shall not be
alienated. The exploration, development, and utilization of natural
resources shall be under the full control and supervision of the
State. The State may directly undertake such activities, or, it may
enter into co-production, joint venture, or production-sharing
agreements with Filipino citizens, or corporations or associations
at least sixty per centum of whose capital is owned by such
citizens. Such agreements may be for a period not exceeding twentyfive years, renewable for not more than twenty-five years, and under
such terms and conditions as may be provided by law. In cases of
water rights for irrigation, water supply, fisheries, water supply,
fisheries, or industrial uses other than the development of water
power, beneficial use may be the measure and limit of the grant.
The State shall protect the nation's marine wealth in its archipelagic
waters, territorial sea, and exclusive economic zone, and reserve its
use and enjoyment exclusively to Filipino citizens.

The Congress may, by law, allow small-scale utilization of natural


resources by Filipino citizens, as well as cooperative fish farming,
with priority to subsistence fishermen and fishworkers in rivers, lakes,
bays, and lagoons.
The President may enter into agreements with foreign-owned
corporations involving either technical or financial assistance
for large-scale exploration, development, and utilization of
minerals, petroleum, and other mineral oils according to the
general terms and conditions provided by law, based on real
contributions to the economic growth and general welfare of the
country. In such agreements, the state shall promote the development
and use of local scientific and technical resources.
The President shall notify the Congress of every contract entered into
in accordance with this provision, within thirty days from its
execution."223
All lands of the public domain and all natural resources- waters,
minerals, coal, petroleum, and other mineral oils, all forces of
potential energy, fisheries, forests or timber, wildlife, flora and fauna,
and other natural resources- are owned by the State. The
Constitution provides that in the exploration, development and
utilization of these natural resources, the State exercises full control
and supervision, and may undertake the same in four (4) modes:
1. The State may directly undertake such activities; or
2. The State may enter into co-production, joint venture or
production-sharing agreements with Filipino citizens or
qualified corporations;
3. Congress may, by law, allow small-scale utilization of
natural resources by Filipino citizens;

4. For the large-scale exploration, development and utilization


of minerals, petroleum and other mineral oils, the President
may enter into agreements with foreign-owned
corporations involving technical or financial assistance.
As owner of the natural resources, the State is accorded primary
power and responsibility in the exploration, development and
utilization of these natural resources. The State may directly
undertake the exploitation and development by itself, or, it may allow
participation by the private sector through co-production,224joint
venture,225 or production-sharing agreements.226 These agreements may
be for a period of 25 years, renewable for another 25 years. The State,
through Congress, may allow the small-scale utilization of natural
resources by Filipino citizens. For the large-scale exploration of these
resources, specifically minerals, petroleum and other mineral oils, the
State, through the President, may enter into technical and financial
assistance agreements with foreign-owned corporations.
Under the Philippine Mining Act of 1995, (R.A. 7942) and the
People's Small-Scale Mining Act of 1991 (R.A. 7076) the three types
of agreements, i.e., co-production, joint venture or productionsharing, may apply to both large-scale227 and small-scale
mining.228 "Small-scale mining" refers to "mining activities which rely
heavily on manual labor using simple implements and methods and do
not use explosives or heavy mining equipment."229
Examining the IPRA, there is nothing in the law that grants to the
ICCs/IPs ownership over the natural resources within their
ancestral domains. The right of ICCs/IPs in their ancestral domains
includesownership, but this "ownership" is expressly defined and
limited in Section 7 (a) as:

"Sec. 7. a) Right of ownership- The right to claim ownership over


lands, bodies of water traditionally and actually occupied by
ICCs/IPs, sacred places, traditional hunting and fishing grounds, and
all improvements made by them at any time within the domains;"
The ICCs/IPs are given the right to claim ownership over "lands,
bodies of water traditionally and actually occupied by ICCs/IPs,
sacred places, traditional hunting and fishing grounds, and all
improvements made by them at any time within the domains." It will
be noted that this enumeration does not mention bodies of water not
occupied by the ICCs/IPs, minerals, coal, wildlife, flora and fauna in
the traditional hunting grounds, fish in the traditional fishing
grounds, forests or timber in the sacred places, etc. and all other
natural resources found within the ancestral domains. Indeed, the
right of ownership under Section 7 (a) does not cover
"waters, minerals, coal,petroleum and other mineral oils, all
forces of potential
energy, fisheries, forests or timber, wildlife,flora and fauna and al
l other natural resources" enumerated in Section 2, Article XII of
the 1987 Constitution as belonging to the State.
The non-inclusion of ownership by the ICCs/IPs over the natural
resources in Section 7(a) complies with the Regalian doctrine.
(a) Section 1, Part II, Rule III of the Implementing Rules Goes
Beyond the Parameters of Sec. 7 (a) of the IPRA And is
Unconstitutional.
The Rules Implementing the IPRA230 in Section 1, Part II, Rule III
reads:
"Section 1. Rights of Ownership. ICCs/IPs have rights of ownership
over lands, waters, and natural resources and all improvements made
by them at any time within the ancestral domains/ lands. These rights
shall include, but not limited to, the right over the fruits, the right to

possess, the right to use, right to consume, right to exclude and right
to recover ownership, and the rights or interests over land and natural
resources. The right to recover shall be particularly applied to lands
lost through fraud or any form or vitiated consent or transferred for an
unconscionable price."
Section 1 of the Implementing Rules gives the ICCs/IPs rights of
ownership over "lands, waters and natural resources." The term
"natural resources" is not one of those expressly mentioned in Section
7 (a) of the law. Our Constitution and jurisprudence clearly declare
that the right to claim ownership over land does not necessarily
include the right to claim ownership over the natural resources found
on or under the land.231 The IPRA itself makes a distinction between
land and natural resources. Section 7 (a) speaks of the right of
ownership only over the land within the ancestral domain. It is
Sections 7 (b) and 57 of the law that speak of natural resources,
and these provisions, as shall be discussed later, do not give the
ICCs/IPs the right of ownership over these resources.
The constitutionality of Section 1, Part II, Rule III of the
Implementing Rules was not specifically and categorically challenged
by petitioners. Petitioners actually assail the constitutionality of the
Implementing Rules in general.232Nevertheless, to avoid any confusion
in the implementation of the law, it is necessary to declare that the
inclusion of "natural resources" in Section 1, Part II, Rule III of the
Implementing Rules goes beyond the parameters of Section 7 (b) of
the law and is contrary to Section 2, Article XII of the 1987
Constitution.
(b) The Small-Scale Utilization of Natural Resources In Sec. 7 (b)
of the IPRA Is Allowed Under Paragraph 3, Section 2 of Article
XII of the Constitution.

Ownership over natural resources remain with the State and the IPRA
in Section 7 (b) merely grants the ICCs/IPs the right to manage
them, viz:
"Sec. 7 (b) Right to Develop Lands and Natural Resources.- Subject
to Section 56 hereof, right to develop, control and use lands and
territories traditionally occupied, owned, or used; to manage and
conserve natural resourceswithin the territories and uphold the
responsibilities for future generations; to benefit and share the profits
from allocation and utilization of the natural resources found therein;
the right to negotiate the terms and conditions for the exploration of
natural resources in the areas for the purpose of ensuring ecological,
environmental protection and the conservation measures, pursuant to
national and customary laws; the right to an informed and intelligent
participation in the formulation and implementation of any project,
government or private, that will affect or impact upon the ancestral
domains and to receive just and fair compensation for any damages
which they may sustain as a result of the project; and the right to
effective measures by the government to prevent any interference
with, alienation and encroachment upon these rights;"
The right to develop lands and natural resources under Section 7
(b) of the IPRA enumerates the following rights:
a) the right to develop, control and use lands and
territories traditionally occupied;
b) the right to manage and conserve natural resources within
the territories and uphold the responsibilities for future
generations;
c) the right to benefit and share the profits from the allocation
and utilization of the natural resources found therein;

d) the right to negotiate the terms and conditions for the


exploration of natural resources for the purpose of ensuring
ecological, environmental protection and the conservation
measures, pursuant to national and customary laws;
e) the right to an informed and intelligent participation in the
formulation and implementation of any project, government or
private, that will affect or impact upon the ancestral domains
and to receive just and fair compensation for any damages
which they may sustain as a result of the project;
f) the right to effective measures by the government to prevent
any interference with, alienation and encroachment upon these
rights.233
Ownership over the natural resources in the ancestral domains
remains with the State and the ICCs/IPs are merely granted the
right to "manage and conserve" them for future generations,
"benefit and share" the profits from their allocation and
utilization, and "negotiate the terms and conditions for their
exploration" for the purpose of "ensuring ecological and
environmental protection and conservation measures." It must be
noted that the right to negotiate the terms and conditions over the
natural resources covers only their exploration which must be for the
purpose of ensuring ecological and environmental protection of, and
conservation measures in the ancestral domain. It does not extend to
the exploitation and development of natural resources.

Simply stated, the ICCs/IPs' rights over the natural resources


take the form of management or stewardship. For the ICCs/IPs
may use these resources and share in the profits of their utilization or
negotiate the terms for their exploration. At the same time, however,
the ICCs/IPs must ensure that the natural resources within their
ancestral domains are conserved for future generations and that the
"utilization" of these resources must not harm the ecology and
environment pursuant to national and customary laws.234
The limited rights of "management and use" in Section 7 (b) must
be taken to contemplate small-scale utilization of natural
resources as distinguished from large-scale. Small-scale utilization
of natural resources is expressly allowed in the third paragraph of
Section 2, Article XII of the Constitution "in recognition of the
plight of forest dwellers, gold panners, marginal fishermen and others
similarly situated who exploit our natural resources for their daily
sustenance and survival."235 Section 7 (b) also expressly mandates the
ICCs/IPs to manage and conserve these resources and ensure
environmental and ecological protection within the domains, which
duties, by their very nature, necessarily reject utilization in a largescale.
(c) The Large-Scale Utilization of Natural Resources In Section 57
of the IPRA Is Allowed Under Paragraphs 1 and 4, Section 2,
Article XII of the 1987 Constitution.
Section 57 of the IPRA provides:
"Sec. 57. Natural Resources within Ancestral Domains.- The ICCs/IPs
shall have priority rights in theharvesting, extraction, development
or exploitation of any natural resources within the ancestral
domains. A non-member of the ICCs/IPs concerned may be allowed
to take part in the development and utilization of the natural resources
for a period of not exceeding twenty-five (25) years renewable for not
more than twenty-five (25) years: Provided, That a formal and written

agreement is entered into with the ICCs/IPs concerned or that the


community, pursuant to its own decision-making process, has agreed
to allow such operation: Provided finally, That the NCIP may exercise
visitorial powers and take appropriate action to safeguard the rights of
the ICCs/IPs under the same contract."
Section 57 speaks of the "harvesting, extraction, development or
exploitation of natural resources within ancestral domains" and
"gives the ICCs/IPs 'priority rights' therein." The terms "harvesting,
extraction, development or exploitation" of any natural resources
within the ancestral domains obviously refer to large-scale
utilization. It is utilization not merely for subsistence but for
commercial or other extensive use that require technology other than
manual labor.236 The law recognizes the probability of requiring a nonmember of the ICCs/IPs to participate in the development and
utilization of the natural resources and thereby allows such
participation for a period of not more than 25 years, renewable for
another 25 years. This may be done on condition that a formal written
agreement be entered into by the non-member and members of the
ICCs/IPs.

Constitution. Interpreting Section 2, Article XII of the 1987


Constitution237 in relation to Section 57 of IPRA, the State, as
owner of these natural resources, may directly undertake the
development and exploitation of the natural resources by itself, or
in the alternative, it may recognize the priority rights of the
ICCs/IPs as owners of the land on which the natural resources are
found by entering into a co-production, joint venture, or
production-sharing agreement with them. The State may likewise
enter into any of said agreements with a non-member of the
ICCs/IPs, whether natural or juridical, or enter into agreements
with foreign-owned corporations involving either technical or
financial assistance for the large-scale exploration, development
and utilization of minerals, petroleum, and other mineral oils, or
allow such non-member to participate in its agreement with the
ICCs/IPs. If the State decides to enter into an agreement with a nonICC/IP member, the National Commission on Indigenous Peoples
(NCIP) shall ensure that the rights of the ICCs/IPs under the
agreement shall be protected. The agreement shall be for a period of
25 years, renewable for another 25 years.

Section 57 of the IPRA does not give the ICCs/IPs the right to
"manage and conserve" the natural resources. Instead, the law only
grants the ICCs/IPs "priority rights" in the development or
exploitation thereof. Priority means giving preference. Having priority
rights over the natural resources does not necessarily mean ownership
rights. The grant of priority rights implies that there is a superior
entity that owns these resources and this entity has the power to grant
preferential rights over the resources to whosoever itself chooses.

To reiterate, in the large-scale utilization of natural resources within


the ancestral domains, the State, as owner of these resources, has four
(4) options: (1) it may, of and by itself, directly undertake the
development and exploitation of the natural resources; or (2) it may
recognize the priority rights of the ICCs/IPs by entering into an
agreement with them for such development and exploitation; or (3) it
may enter into an agreement with a non-member of the ICCs/IPs,
whether natural or juridical, local or foreign; or (4) it may allow such
non-member to participate in the agreement with the ICCs/IPs.

Section 57 is not a repudiation of the Regalian doctrine. Rather, it is


an affirmation of the said doctrine that all natural resources found
within the ancestral domains belong to the State. It incorporates by
implication the Regalian doctrine, hence, requires that the provision
be read in the light of Section 2, Article XII of the 1987

The rights granted by the IPRA to the ICCs/IPs over the natural
resources in their ancestral domains merely gives the ICCs/IPs, as
owners and occupants of the land on which the resources are
found, the right to the small-scale utilization of these resources,
and at the same time, a priority in their large-scale development

and exploitation. Section 57 does not mandate the State to


automatically give priority to the ICCs/IPs. The State has several
options and it is within its discretion to choose which option to
pursue. Moreover, there is nothing in the law that gives the ICCs/IPs
the right to solely undertake the large-scale development of the
natural resources within their domains. The ICCs/IPs must undertake
such endeavour always under State supervision or control. This
indicates that the State does not lose control and ownership over the
resources even in their exploitation. Sections 7 (b) and 57 of the law
simply give due respect to the ICCs/IPs who, as actual occupants of
the land where the natural resources lie, have traditionally utilized
these resources for their subsistence and survival.
Neither is the State stripped of ownership and control of the natural
resources by the following provision:
"Section 59. Certification Precondition.- All departments and other
governmental agencies shall henceforth be strictly enjoined from
issuing, renewing or granting any concession, license or lease, or
entering into any production-sharing agreement. without prior
certification from the NCIP that the area affected does not overlap
with any ancestral domain. Such certification shall only be issued
after a field-based investigation is conducted by the Ancestral
Domains Office of the area concerned: Provided, That no certification
shall be issued by the NCIP without the free and prior informed and
written consent of the ICCs/IPs concerned: Provided, further, That no
department, government agency or government-owned or -controlled
corporation may issue new concession, license, lease, or production
sharing agreement while there is a pending application for a
CADT: Provided, finally, That the ICCs/IPs shall have the right to
stop or suspend, in accordance with this Act, any project that has not
satisfied the requirement of this consultation process."
Concessions, licenses, lease or production-sharing agreements for the
exploitation of natural resources shall not be issued, renewed or

granted by all departments and government agencies without prior


certification from the NCIP that the area subject of the agreement
does not overlap with any ancestral domain. The NCIP certification
shall be issued only after a field-based investigation shall have been
conducted and the free and prior informed written consent of the
ICCs/IPs obtained. Non-compliance with the consultation requirement
gives the ICCs/IPs the right to stop or suspend any project granted by
any department or government agency.
As its subtitle suggests, this provision requires as a precondition for
the issuance of any concession, license or agreement over natural
resources, that a certification be issued by the NCIP that the area
subject of the agreement does not lie within any ancestral domain.
The provision does not vest the NCIP with power over the other
agencies of the State as to determine whether to grant or deny any
concession or license or agreement. It merely gives the NCIP the
authority to ensure that the ICCs/IPs have been informed of the
agreement and that their consent thereto has been obtained. Note that
the certification applies to agreements over natural resources that do
not necessarily lie within the ancestral domains. For those that are
found within the said domains, Sections 7(b) and 57 of the IPRA
apply.
V. THE IPRA IS A RECOGNITION OF OUR ACTIVE
PARTICIPATION IN THE INDIGENOUS INTERNATIONAL
MOVEMENT.
The indigenous movement can be seen as the heir to a history of antiimperialism stretching back to prehistoric times. The movement
received a massive impetus during the 1960's from two sources. First,
the decolonization of Asia and Africa brought into the limelight the
possibility of peoples controlling their own destinies. Second, the
right of self-determination was enshrined in the UN Declaration on
Human Rights.238 The rise of the civil rights movement and antiracism brought to the attention of North American Indians, Aborigines

in Australia, and Maori in New Zealand the possibility of fighting for


fundamental rights and freedoms.
In 1974 and 1975, international indigenous organizations were
founded,239 and during the 1980's, indigenous affairs were on the
international agenda. The people of the Philippine Cordillera were the
first Asians to take part in the international indigenous movement. It
was the Cordillera People's Alliance that carried out successful
campaigns against the building of the Chico River Dam in 1981-82
and they have since become one of the best-organized indigenous
bodies in the world.240
Presently, there is a growing concern for indigenous rights in the
international scene. This came as a result of the increased publicity
focused on the continuing disrespect for indigenous human rights and
the destruction of the indigenous peoples' environment, together with
the national governments' inability to deal with the
situation.241Indigenous rights came as a result of both human rights
and environmental protection, and have become a part of today's
priorities for the international agenda.242
International institutions and bodies have realized the necessity of
applying policies, programs and specific rules concerning IPs in some
nations. The World Bank, for example, first adopted a policy on IPs as
a result of the dismal experience of projects in Latin America.243 The
World Bank now seeks to apply its current policy on IPs to some of its
projects in Asia. This policy has provided an influential model for the
projects of the Asian Development Bank.244

The 1987 Philippine Constitution formally recognizes the existence of


ICCs/IPs and declares as a State policy the promotion of their rights
within the framework of national unity and development.245 The IPRA
amalgamates the Philippine category of ICCs with the international
category of IPs,246 and is heavily influenced by both the International
Labor Organization (ILO) Convention 169 and the United Nations
(UN) Draft Declaration on the Rights of Indigenous Peoples.247
ILO Convention No. 169 is entitled the "Convention Concerning
Indigenous and Tribal Peoples in Independent Countries"248 and was
adopted on June 27, 1989. It is based on the Universal Declaration of
Human Rights, the International Covenant on Economic, Social and
Cultural Rights, the International Covenant on Civil and Political
Rights, and many other international instruments on the prevention of
discrimination.249 ILO Convention No. 169 revised the "Convention
Concerning the Protection and Integration of Indigenous and Other
Tribal and Semi-Tribal Populations in Independent Countries" (ILO
No. 107) passed on June 26, 1957. Developments in international law
made it appropriate to adopt new international standards on
indigenous peoples "with a view to removing the assimilationist
orientation of the earlier standards," and recognizing the aspirations of
these peoples to exercise control over their own institutions, ways of
life and economic development."250
CONCLUSION
The struggle of the Filipinos throughout colonial history had been
plagued by ethnic and religious differences. These differences were
carried over and magnified by the Philippine government through the
imposition of a national legal order that is mostly foreign in origin or
derivation.251 Largely unpopulist, the present legal system has resulted
in the alienation of a large sector of society, specifically, the
indigenous peoples. The histories and cultures of the indigenes are
relevant to the evolution of Philippine culture and are vital to the
understanding of contemporary problems.252 It is through the IPRA

that an attempt was made by our legislators to understand Filipino


society not in terms of myths and biases but through common
experiences in the course of history. The Philippines became a
democracy a centennial ago and the decolonization process still
continues. If the evolution of the Filipino people into a democratic
society is to truly proceed democratically, i.e., if the Filipinos as a
whole are to participate fully in the task of continuing
democratization,253 it is this Court's duty to acknowledge the presence
of indigenous and customary laws in the country and affirm their coexistence with the land laws in our national legal system.
With the foregoing disquisitions, I vote to uphold the constitutionality
of the Indigenous Peoples Rights Act of 1997.

Antonio H. Noblejas, Land Titles and Deeds, p. 5 [1986];


these grants were better known as repartimientos and
encomiendas. Repartimientos were handouts to the military as
fitting reward for their services to the Spanish crown. The
encomiendas were given to Spaniards to administer and
develop with the right to receive and enjoy for themselves the
tributes of the natives assigned to them.- Ponce, supra, p. 12,
citing Benitez, History of the Philippines, pp. 125-126.
5

Narciso Pena, Registration of Land Titles and Deeds, p. 2


[1994].
6

The Mortgage Law is a misnomer because it is primarily a


law on registration of property and secondarily a mortgage
law- Ponce, supra, at 16.
7

Ponce, supra, at 15.

3 Phil. 537 [1904].

Footnotes
Chief Judge, US Court of Appeals for the Seventh Circuit;
Senior Lecturer, University of Chicago Law School.
1

The University of Chicago Law Review, Vol. 67, Summer


2000, No. 3, p. 573.
2

Dominium is distinguished from imperium which is the


government authority possessed by the state expressed in the
concept of sovereignty- Lee Hong Hok v. David, 48 SCRA
372, 377 [1972].

10

Id. at 540.

11

Id. at 548.

12

Id. at 543-544.

13

Id. at 543.

Valenton v. Murciano, 3 Phil. 537, 543 [1904]; See also


Florencio D.R. Ponce, The Philippine Torrens System, p. 13
[1964].
4

Id. at 542-543. These comments by the court are clear


expressions of the concept that Crown holdings embraced
both imperium and dominiumMa. Lourdes Aranal-Sereno
and Roan Libarios, The Interface Between National Land Law
and Kalinga Land Law, 58 P.L.J. 420, 423 [1983].
14

15

Id. at 545-546.

16

Id. at 543.

30

Id. at 600-601.

17

Id. at 557.

31

Ibid.

32

Section 7.

33

Section 8.

34

Sections 13 to 20.

35

Sections 21 to 28.

36

Sections 29 to 37.

37

Sections 38 and 40.

38

Sections 74 to 77.

39

Section 69.

40

Section 73.

Id. at 553-554; Valenton was applied in Cansino v. Valdez, 6


Phil. 320 [1906]; Tiglao v. Insular Government, 7 Phil. 80
[1906]; and Cario v. Insular Government, 7 Phil. 132 [1906];
all decided by the Philippine Supreme Court.
18

19

20

Please see Section 70, Act 926.


Ponce, supra, at 33.

Montano v. Insular Government, 12 Phil. 572 [1909]; also


cited in Ponce, supra, at 32.
21

Archbishop of Manila v. Director of Lands, 27 Phil. 245


[1914]; also cited in Ponce, supra, at 32.
22

23

24

Antonio H. Noblejas, Land Titles and Deeds, p. 250 [1961].


Ponce, supra, at 32.

Pea, Registration of Land Titles and Deeds, p. 26 [1982];


Noblejas, supra, at 32.
25

26

Noblejas, supra, at 32.

27

Ponce, supra, at 123-124; Noblejas, supra, at 33.

2 Aruego, The Framing of the Philippine Constitution, p. 592


[1937].
28

29

Id. at 600.

Convention Conerning Indigenous and Tribal Peoples in


Independent Countries, June 27, 1989.
41

Guide to R.A. 8371, published by the Coalition for Ips Rights


and ancestral Domains in cooperation with the ILO and
Bilance-Asia Department, p. 4 [1999]hereinafter referred to
as Guide to R.A. 8371.
42

Taken from the list of IPs sbmitted by Rep. Andolana to the


house of Representatives during the deliberations on H.B. No.
9125Interpellations of Aug. 20, 1997, pp. 00086-00095.
"lost tribes" such as the Lutangan and Tatang have not been
included.
43

How these people came to the Philippines may be explained


by two theories. One view, generally linked to Professor Otley
H. Beyer, suggests the "wave theory"a series of arrivals in
the archipelago bringing in different types and levels of
culture. The Negritos, dark-skinned pygmies, came between
25,000 to 30,000 B.C. Their cultural remains are preserved by
the Negrito-type Filipinos found in Luzon, Visayas and
Mindanao. Their relatively inferior culture did not enable them
to overcome the pressures from the second wave of people, the
Indonesians A and B who came in 5,000 and 3,500 B.C. They
are represented today by the Kalinga, Gaddang, Isneg,
Mangyan, Tagbanua, Manobo, Mandaya, Subanon, and Sama.
The first group was pushed inland as the second occupied the
coastal and downriver settlements. The last wave involved
Malay migrations between 500 B.C. and 1,500 A.D. they had a
more advanced culture based on metal age technology. They
are represented by the Christianized and Islamized Filipinos
who pushed the Indonesian groups inland and occupied much
of the coastal, lowland and downstream areas.
44

A second view is postulated by Robert Fox, F. Landa


Jocana, Alfredo Evangelista, and Jesus Peralta. Jocano
maintains that the Negritos, Indonesians and Malays
stand co-equal as ethnic groups without any one being
dominant, racially or culturally. The geographic
distribution of the ethno-linguistic groups, which shows
overlapping of otherwise similar racial strains in both
upland and lowland cultures or coastal and inland
communities, suggests a random and unstructured
advent of different kinds of groups in the archipelago
Samuel K. Tan, A History of the Philippines, published
by the Manila Studies Association, Inc. and the
Philippine National Historical society, Inc., pp. 33-34
[1997]; Teodoro A. Agoncillo, History of the Filipino
People, p. 21 [1990].

45

Tan, supra, at 35-36.

Onofre D. Corpuz, The Roots of the Filipino


Nation, Philippine Centennial (1898-1998) Edition, vol. 1, p.
13, Aklahi foundation, Inc. [1989]. It was in 800-1,000 A.D.
that the Ifugaos of Northern Luzon built the rice terracesId.
at 37.
46

47

Id. at 5-6.

48

Id. at 13.

Teodoro A. Agoncillo, History of the Filipino People, p. 54


[1990].
49

50

Corpuz, supra, at 5.

51

Id. at 44-45.

52

Agoncillo, supra, at 40.

53

Id. at 40-41.

Rafael Iriarte, History of the Judicial System, the Philippine


Indigenous Era Prior to 1565, unpublished work submitted as
entry to the Centennial Essay-Writing Contest sponsored by the
National Centennial Commission and the Supreme Court in
1997, p. 103, citing Perfecto V. Fernandez, Customs Laws in
Pre-Conquest Philippines, UP Law Center, p. 10 [1976].
54

55

Agoncillo, supra, at 41.

Amelia Alonzo, The History of the Judicial System in the


Philippines, Indigenous Era Prior to 1565,unpublished work
submitted as entry to the Centennial Essay-Writing Contest
56

sponsored by the National Centennial Commission and the


Supreme Court in 1997.

68

People v. Cayat, 68 Phil. 12, 17 [1939].

Id. at 17, citing the Decree of the Governor-General of the


Philippines, Jan. 14, 1887.
69

57

Agoncillo, supra, at 42.

58

Renato Constantino, A Past Revisited , p. 38 [1975].

Samuel K. Tan, A History of the Philippines, published by the


Manila Studies Assn., Inc. and the Phil. National Historical
Society, Inc., p. 43 [1997].
59

70

Agoncillo, supra, at 80.

71

Id. at 80.

72

Corpuz, supra, at 277-278.


Id. at 277.

60

Id.

73

61

Id. at 43-44.

74

62

Tan, supra, at 47-48.

63

Id. at 48-49.

Cacho v. Government of the P.I., 28 Phil. 616, 625-627


[1914]; see also Ponce, The Philippine Torrens System, pp. 1112 [1964]. In Philippine pre-colonial history, there was only
one recorded transaction on the purchase of land. The Maragtas
Code tells us of the purchase of Panay Island by ten Bornean
datus led by Datu Puti from the Atis under Marikudo in the
13th century. The purchase price for the island was a gold
salakot and a long gold necklace Agoncillo, supra, at 25.
64

65

66

75

Tan, supra, at 49-50.

76

Id. at 67.

77

Id. at 52-53.

78

Id. at 53.

79

Id. at 55.

80

People v. Cayat, 68 Phil. 12, 17 [1939].

Constantino, supra, at 38.


Corpuz, supra, at 39.

Resettlement- "bajo el son de la campana" (under the sound


of the bell) or "bajo el toque de la campana"(Under the peal of
the bell).
67

Id., N.B. But see discussion in Cario v. Insular Government,


infra, where the United States Supreme Court found that the
Spanish decrees in the Philippines appeared to recognize that
the natives owned some land. Whether in the implementation
of these decrees the natives ancestral rights to land
wereactually respected was not discussed by the U.S.
Supreme Court; see also Note 131, infra.

Memorandum of the Secretary of the Interior, quoted in


Rubi v. Provincial Board of Mindoro, 39 Phil. 660, 714 [1919];
also cited in People v. Cayat, supra, at 17-18.
81

82

Rubi v. Provincial Board of Mindoro, supra, at 693.

Charles Macdonald, Indigenous Peoples of the Philippines:


Between Segregation and Integration, Indigenous Peoples of
Asia, p. 348, ed. by R.H. Barnes, A. Gray and B. Kingsburry,
pub. by Association for Asian Studies [1995]. The BNCT made
a Bontok and subanon ethnography, a history of Sulu
genealogy, and a compilation on unhispanized peoples in
northern Luzon.Owen J. Lynch, Jr., The Philippine Colonial
Dichotomy: Attraction and Disenfranchisement, 63 P. L. J. 139140 [1988].

The PANAMIN, however, concentrated funds and resources


on image-building, publicity, and impact projects. In
Mindanao, the agency resorted to a policy of forced
resettlement on reservations, militarization and intimidationMacDonald, Indigenous Peoples of the Philippines, supra, at
349-350.
90

83

No occupancy certificates were issued, however, because the


government failed to release the decrees implementing rules
and regulations- Abelardo, supra, at 120-121.
91

92

Id., Note 177.

93

Id., at 93-94.

MacDonald, Indigenous People of the Philippines, supra, at


351.
94

84

R.A. No. 1888 of 1957.

See People v. Cayat, supra, at 21; See also Rubi v. Provincial


Board of Mindoro, 39 Phil. 660, 694 [1919]
85

E.O. Nos. 122-A, 122-B and 122-C. The preamble of E.O.


No. 122-B states:
95

"Believing that the new government is committed to


formulate more vigorous policies, plans, programs, and
projects for tribal Filipinos, otherwise known as
Indigenous Cultural Communities, taking into
consideration their communal aspirations, customs,
traditions, beliefs, and interests, in order to promote and
preserve their rich cultural heritage and insure their
participation in the countrys development for national
unity; xxx"

MacDonald, Indigenous Peoples of the Philippines, supra, at


351.
86

The construction of the Ambuklao and Binga dams in the


1950s resulted in the eviction of hundreds of Ibaloi families
Cerilo Rico S. Abelardo, Ancestral Domain Rights: Issues,
Responses, and Recommendations, Ateneo Law Journal, vol.
38, No. 1, p. 92 [1993].
87

88

Section 11, Art. XV, 1973 Constitution.

Article II, sec. 22; Article VI, sec. 5, par. 2; Article XII, sec.
5; Article XIII, sec. 6; Article XIV, sec. 17; and Article XVI,
sec. 12.
96

89

Presidential Decrees Nos. 1017 and 1414.

MacDonald, Indigenous Peoples of the Philippines, supra, at


345.
97

Samuel K. Tan, A History of the Philippines, p. 54 [1997].

98

Senate Bill No. 1728 was co-sponsored by Senator


Macapagal-Arroyo and co-authored by Senators Alvarez,
Magsaysay, Revilla, Mercado, Enrile, Honasan, Tatad, Maceda,
Shahani, Osmena and Romulo.
107

Cordillera Studies Program, Land Use and Ownership and


Public Policy in the Cordillera, 29-30 [n.d.]; also cited in Dante
B. Gatmaytan, Ancestral Domain Recognition in the
Philippines: Trends in Jurisprudence and Legislation, 5 Phil.
Nat. Res. L.J. No. 1, pp. 47-48 [1992].

The Eighth Congress, through Senators Rasul, Estrada


and Romulo filed a bill to operationalize the mandate of
the 1987 Constitution on indigenous peoples. The bill
was reported out, sponsored an interpellated but never
enacted into law. In the Ninth Congress, the bill filed by
Senators Rasul and Macapagal-Arroyo was never
sponsored and deliberated upon in the floor.

99

Abelardo, Ancestral Domain Rights, supra, at 98-99, citing


Ponciano L. Bennagen, Indigenous Attitudes Toward Land and
Natural Resources of Tribal Filipinos, 31 National Council of
Churches in the Philippines Newsletter, Oct.-Dec. 1991, at 4-9.
100

Id. at 99, citing June Prill-Brett, Bontok Land Tenure (UP


Law library, mimeographed).

Sponsorship Speech of Senator Flavier, Legislative History


of SBN 1728, Tenth Congress, Second Regular Session,
Senate, Oct. 16, 1996, pp. 15-16.
108

101

Ma. Lourdes Aranal-Sereno and Roan Libarios, The


Interface of National Land Law and Kalinga Law, 58 P.L.J.
420, 440-441 [1983].
102

103

Ibid.

104

Ibid.

109

Id. at 12.

110

Id. at 17-18.

111

Id. at 13.

Journal of the Tenth Congress of the Philippines, Senate,


Session No. 5, Aug. 5-6, 1997, pp. 86-87.
112

Co-authors of the bill were Reps. Ermita, Teves, Plaza,


Calalay, Recto, Fua, Luciano, Abad, Cosalan, Aumentado, de la
Cruz, Bautista, Singson, Damasing, Romualdo, Montilla,
Germino, VercelesProceedings of Sept. 4, 1997, pp. 0010700108.
113

105

Ibid.

Ma. Lourdes Aranal-Sereno and Roan Libarios, The


Interface, supra, at 420.
106

Sponsorship speech of Rep. Andolana of House Bill No.


9125, March 20, 1997.
114

115

Interpellation of Aug. 20, 1997, 6:16 p.m., p. 00061.

116

Section 3 [a], IPRA.

117

Section 3 [b], IPRA.

118

Guide to R.A. 8371, p. 14.

119

Section 44 [e], IPRA.

120

Section 51, IPRA.

121

Sponsorship Speech of Senator Juan Flavier, Leg. History of


SBN 1728, Tenth Congress, Second Regular Session, Oct. 16,
1996, p. 13.
130

It was the practice of the Spanish colonial government not to


issue titles to IgorotsOwen J. Lynch, Jr., Invisible Peoples
and a Hidden Agenda: The Origins of Contemporary Philippine
Land Laws (1900-1913), 63 P.L.J. 249, 288 [1988], citing the
testimony of Benguet Provincial Governnor William F. Pack,
Records at 47, Cario.
131

132

Maura Law or the Royal Decree of Feb. 13, 1894.

133

Later named Camp John Hay.

134

Lynch, Invisible Peoples, supra, at 288-289.

135

7 Phil. 132 [1906].

Guide to R.A. 8371, p. 15.

A CADT refers to a title formally recognizing the right of


possession and ownership of ICCs/IPs over their ancestral
domains identified and delineated in acordance with the IPRA
Rule II [c], Rules & Regulations Implementing the IPRA,
NCIP Admin. Order No. 1.
122

In 1901, Cario had entered into a promissory agreement


with a U.S. merchant in Manila. The note obliged Cario to
sell the land at issue "as soon as he obtains from the
Government of the United States, or its representatives in the
Philippines, real and definitive title." See Lynch, Invisible
Peoples, supra, at 290, citing Governments Exhibit G,
Records, at 137-138, Cario.
136

123

Section 53 [a], IPRA.

A CALT refers to a title formally recognizing the rights of


the ICCs/IPs over their ancestral lands- Rule II [d],
Implementing Rules, NCIP A.O. No. 1.
124

125

Section 52 [k], IPRA.

137
126

127

128

129

Section 3 [1], IPRA.


138

Ibid.

139

Id. at 940.

140

Id. at 941.

Section 11, IPRA.


Ibid.
41 Phil. 935 (1909), 212 U.S. 449, 53 L.Ed. 594.

Cario v. Insular Government, supra, at 939.

Id. at 941-942.

141

Aranal-Sereno and Libarios, The Interface Between Kalinga


Land Law, supra at 428-This artcile was one of those circulated
among the Constitutional Commissioners in the formulation of
Sec. 5, Article XII of the 1987 Constitution (4 Record of the
Constitutional Commission 33).
142

"Native title" is a common law recognition of pre-existing


aboriginal land interests in Autsralia- Maureen Tehan,
Customary Title, Heritage Protection, and Property Rights in
Australia: Emerging Patterns of Land Use in the Post-Mabo
Era, 7 Pacific Rim Law & Policy Journal, No. 3, p. 765 [June
1998].
148

149

Lynch, Native Titles, supra, Note 164, p. 293.

150

39 Phil. 660 [1919].

151

Id. at 712-713.

152

Id. at 694.

153

Id. at 700.

154

42 C.J.S., Indians, Sec. 29 [1944 ed.].

Id. at 944.

143

Certificate of Title No. 2 covering the 148 hectares of Baguio


Municipality was issued not in the name of Cario who died on
June 6, 1908, but to his lawyers John Hausserman and Charles
Cohn and his attorney-in-fact Metcalf Clarke. Hausserman,
Cohn and Clarke sold the land to the U.S. Government in a
Deed of Quitclaim-Richel B. Langit, Igorot Descendants
Claim Rights to Camp John Hay, Manila Times, p. 1, Jan. 12,
1998.
144

Id. at 939.

145

57 P.L.J. 268, 293-296 [1982].

146

From 1987 to 1988, Prof. Lynch allowed the P.L.J. to publish


parts of his doctoral dissertation at the Yale Law School
entitled "Invisible Peoples: A History of Philippine Land Law."
Please see the Legal Bases of Philippine Colonial Sovereignty:
An Inquiry, 62 P.L.J. 279 [1987]; Land Rights, Land Laws and
Land Usurpation: The Spanish Era (1568-1898), 63 P.L.J. 82
[1988]; The Colonial Dichotomy: Attraction and
Disenfranchisement, 63 P.L.J. 112; Invisible Peoples and a
Hidden Agenda: The Origins of Contemporary Philippine Land
Laws (1900-1913), 63 P.L.J. 249.
147

There are 3 kinds of Indian reservations: (a) those created by


treaties prior to 1871; (b) those created by acts of Congress
since 1871; and (c) those made by Executive Orders where the
President has set apart public lands for the use of the Indians in
order to keep them within a certain territory- 42 C.J.S., Indians,
Sec. 29 citing Sioux Tribe of Indians v. U.S. 94 Ct. Cl. 150,
170, certiorari granted 62 S. Ct. 631, 315 U.S. 790, 86 L. Ed.
1194, affirmed 62 S. Ct. 1095, 316 U.S. 317, 86 L. Ed. 1501. It
is observed that the first two kinds may include lands
possessed by aboriginal title. The last kind covers Indian
reservations proper.
155

Until 1871, Indian tribes were recognized by the United


States as possessing the attributes of nations to the
extent that treaties were made with them. In that year,
however, Congress, by statute, declared its intention

thereafter to make the Indian tribes amenable directly to


the power and authority of the United States by the
immediate exercise of its legislative power over them,
instead of by treaty. Since then, Indian affairs have been
regulated by acts if Congress and by contracts with the
Indian tribes practically amounting to treaties- 41 Am
Jur 2d, Indians, Sec. 55 [1995 ed].
42 C.J.S. Indians, Sec. 28 [1944 ed.].

156

Ibid.; see also U.S. v. Santa Fe Pac. R. Co., Ariz., 62 S. Ct.


248, 314 U.S. 339, 86 L. Ed. 260 [1941].
157

167

Id. at 500.

168

Id. at 501.

The title of the government to Indian lands, the naked fee, is


a sovereign title, the government having no landlord from
whom it holds the fee- Shoshone Tribe of Indians of Wind
River Reservation in Wyoming v. U.S., 85 Ct. Cl.
331, certiorari granted U.S. v. Shoshone Tribe of Indians, 58 S.
Ct. 609, 303 U.S. 629, 82 L. Ed. 1090, affirmed 58 S. Ct. 794,
304 U.S. 111, 82 L. Ed. 1213, 1218-1219 [1938].
169

Buttz v. Northern Pac. R. Co., Dak., at 30 L. Ed. 330, 335;


Beecher v. Wetherby, Wis., 95 U.S. 517, 24 L. Ed. 440, 441
[1877]; see also 42 C.J.S., Indians, Sec. 28 [1944 ed.].
170

Ibid.

158

8 Wheat 543, 5 L. Ed. 681 [1823].

159

Annotation, Proof and Extinguishment of Aboriginal title to


Indian Lands, 41 ALR Fed 425, Sec. 2 [b] [1979]- hereinafter
cited as Aboriginal Title to Indian Lands.
171

Id. at 680.

160

Id. at 689.

161

Ibid.; see also Tee Hit Ton Indians v. U.S., 348 U.S. 272, 99
L. Ed. 314, 320, 75 S. Ct. 313 [1955], reh den 348 U.S. 965, 99
L. Ed. 753, 75 S. Ct. 521.
172

Id. at 696; see also 41 ALR Fed 425, Annotation: Proof and
Extinguishment of Aboriginal Title to Indian Lands, Sec. 2[a]
[1979].
162

173

Buttz v. Northern Pac.R. Co., Dak., 7 S. Ct. 100, 119 U.S. 55,
30 L. Ed. 330, 335 [1886].

Ibid.; Tee Hit Ton Indians v. U.S., at 99 L. Ed. 320.

163

Lynch, Native Title, supra, at 293-294; Cohen, Original


Indian Title, 32 Minn. L.R. 48-49 [1947].
164

Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 39


L. Ed. 2d 73, 94 S Ct. 772 [1974]; U.S. v. Alcea Bank of
Tillamooks, 329 U.S. 40, 91 L. Ed. 29. 67 S. Ct. 167 [1946].
174

For compensation under the Indian Claims Commission Act,


the proof of aboriginal title rests on actual, exclusive and
continuous use and occupancy for a long time prior to the loss
of the property. (The Indian Claims Commission Act awards
compensation to Indians whose aboriginal titles were
175

6 Pet 515, 8 L.Ed. 483 [1832].

165

Id. at 499.

166

extinguished by the government through military conquest,


creation of a reservation, forced confinement of Indians and
removal of Indians from certain portions of the land an the
designation of Indian land into forest preserve, grazing district,
etc.) - Aboriginal Title to Indian Lands, supra, at Secs. 2[a],
3[a], pp. 431, 433, 437.
Aboriginal Title to Indian Lands, supra, at Sec. 2[b], p. 435.

176

41 Am Jr 2d, Indians, Sec. 59 [1995 ed.].

American tribes have reached such an advanced stage that the


main issues today evolve around complex jurisdictional and
litigation matters. Tribes have acquired the status of sovereign
nations within another nation, possessing the right to change
and grow- Jose Paulo Kastrup, The Internationalization of
Indigenous Rights from the Environmental and Human Rights
Perspective, Texas International Law Journal, vol. 32: 97, 104
[1997].

177

183

An allotment of Indian land contains restrictions on


alienation of the land. These restrictions extend to a devise of
the land by will- Missouri, K. & T.R. Co. v. U.S., 235 U.S. 37,
59 L. Ed. 116,. 35 S. Ct. 6 [1914]; A railroad land grant that
falls within Indian land is null and void- Northern P. R. Co. v.
U.S., 227 U.S. 355, 57 L.Ed. 544,33 S. Ct. 368 [1913];
Portions of Indian land necessary for a railroad right of way
were, by the terms of the treaty, declared "public land,"
implying that land beyond the right of way was privateKindred v. Union P.R. Co., 225 U.S. 582, 56 L. Ed. 1216, 32 S.
Ct. 780 [1912]; see also 41 Am Jur 2d, Indians, Sec. 58 [1995
ed].

184

178

Aboriginal Title to Indian Lands, supra, at Sec. 2[a], p. 433.

179

42 C.J.S. Indians, Sec. 29 [1944 ed.]

Lynch, Native Title, supra, at 293.

Dante Gatmaytan, Ancestral Domain Recognition in the


Philippines: Trends in Jurisprudence and Legislation, 5 Phil.
Nat. Res. L.J. No. 1, pp. 43, 40 [Aug. 1992]; see also Tee Hit
Ton Indians v. U.S., supra, at 320.
185

Ibid.

D. Gatmaytan, supra, citing Churchill, The Earth is Our


Mother: Struggles for American Indian Land and Liberation in
the Contemporary United States, The State of Native America:
Genocide, Colonization and Resistance 139 (M. Jaimes 1992);
and Indian Law Resource Center, United States Denial of
Indian Property Rights: A Study in Lawless Power and Racial
Discrimination, Rethinking Indian Law 15 (National Lawyers
Guild, Committee on Native American Struggles 1982).
186

180

Id., Note 28, stating that some earlier decisions of the U.S.
Supreme Court have held that Congress is subject to the
strictures of the Constitution in dealing with Indians. When an
Indian property is taken for non-Indian use, the U.S.
government is liable for payment of compensation, and an
uncompensated taking may be enjoined. F. Cohen, Handbook
of Federal Indian Law 217 [1982], citing Shoshone Tribe v.
U.S. 299 U.S. 476 [1937]; Choate v. Trapp, 224 U.S. 665
187

Ibid.

181

North American Indians have made much progress in


establishing a relationship with the national government and
developing their own laws. Some have their own governmentrecognized constitutions. Usually the recognition of Indian
tribes depends on whether the tribe has a reservation. North
182

[1912]; and Lane v. Pueblo of Santa Rosa, 249 U.S. 110


[1919].

199

Section 8, C.A. 141.

The classification of ancestral lands 18% in slope or over as


alienable in the IPRA is an exception to Section 15, P.D. 705,
the Revised Forestry Code.
200

See Discussion, infra, Part IV (c) (2).

188

Susi v. Razon, 48 Phil. 424 [1925]; Herico v. Dar, 95 SCRA


437 [1980].
189

Ibid.

190

Director of Lands v. Intermediate Appellate Court, 146


SCRA 509 [1986]; Director of Lands v. Buyco, 216 SCRA 78
[1992]; Republic v. Court of Appeals and Lapina, 235 SCRA
567 [1994].
191

75 Phil. 890 [1946].

192

Id. at 892.

193

Sec. 48 [b], C.A. 141.

194

Sec. 48 [c], C.A. 141, as amended. This provision was added


in 1964 by R.A. 3872.
195

Charles MacDonald, Indigenous Peoples of the Philippines:


Between Segregation and Integration, Indigenous Peoples of
Asia, supra, at pp. 345, 350.
201

202

Words in bold were amendments introduced by R.A. 3872 in


1964.
203

Words in bold were amendments introduced by R.A. 3872


on June 18, 1964. On January 25, 1977, however, Sec. 48 [b]
and 48 [c] were further amended by P.D. 1073 stating that
these provisions on cultural minorities apply only to
alienable and disposable lands of the public
domain- Please see Republic v. CA and Paran, 201 SCRA 1,
10-11 [1991].
204

205

Jus utendi, jus fruendi.

206

Jus abutendi.

207

Jus disponendi.

Section 12, IPRA.

196

"Time immemorial" refers "to a period of time when as far


back as memory can go, certain ICCs/Ips are known to have
occupied, possessed in the concept of owner, and utilized a
defined territory devolved to them, by operation of customary
law or inherited from their ancestors, in accordance with their
customs and traditions." (Sec. 3 [p], IPRA).
197

Jus vindicandi. Please see Tolentino, Civil Code, vol. II, pp.
45-46 [1992]; see also Tolentino, vol. I, pp. 12-14.
208

209

Section 2, C.A. 141.

198

Section 5, Article XII, 1987 Constitution.

Sec. 55, IPRA provides:

"Sec. 55. Communal rights.- Subject to Section 56


hereof, areas within the ancestral domains, whether
delineated or not, shall be presumed to be communally
held: provided, That communal rights under this Act
shall not be construed as co-ownership as provided in
Republic Act No. 386, otherwise known as the New
Civil Code."
210

Ibid.

211

Article 494, Civil Code.

Law writes custom into contract-Hongkong & Shanghai


Bank v. Peters, 16 Phil. 284 [1910].
218

The Civil Code provides:


"Art. 11. Customs which are contrary to law, public
order or public policy shall not be countenanced."
"Art. 12. A custom must be proved as a fact, according
to the rules of evidence."
Article 78 on marriages between Mohammedans or pagans
who live in the non-Christian provinces- this is now Art. 33 of
the Family Code; Art. 118, now Art. 74 of the Family Code on
property relations between spouses; Art. 577 on the
usufructuary of woodland; Art. 657 on easement of right of
way for passage of livestock; Arts. 678, 1315, 1376, 1522,
1564 and 1577. Please see Aquino, Civil Code, vol. 1, p. 25.
219

Antonio M. La Vina, Arguments for Communal Title, Part


II, 2 Phil. Nat. Res. L. J. 23 [Dec. 1989].
212

213

Section 11, Corporation Code.

214

Sections 60-72, Corporation Code.

Section 117, Corporation Code. Please see also La


Vina, Arguments for Communal Title, Part II, supra, at 23.
215

216

Section 5, par. 2, Article XII, 1987 Constitution.

Customary law is recognized by the Local Government


Code of 1991 in solving disputes among members of the
indigenous communities, viz:
217

"Sec. 412 (c) Conciliation among members of


indigenous cultural communities.- The customs and
traditions of indigenous cultural communities shall be
applied in settling disputes between members of the
cultural communities."

Castle Bros. v. Gutierrez Hermanos, 11 Phil. 629 [1908]; In


Re: Firm Name of Ozaeta Romulo, 92 SCRA 1 [1979]; Yao
Kee v. Sy-Gonzales, 167 SCRA 736 [1988]; Please see Aquino,
Civil Code, vol. 1, p. 26 for a list of other cases.
220

This situation is analogous to the Muslim code or the Code


of Muslim Personal Laws (P.D. 1083) which took effect on
February 4, 1977 despite the effectivity of the Civil Code and
the Family Code. P.D. 1083 governs persons, family relations
and succession among Muslims, the adjudication and
settlement of disputes, the organization of the Sharia courts,
etc.
221

Mariflor P. Pagusara, The Kalinga Ili: Cultural-Ecological


Reflections on Indigenous Theora and Praxis of Man-Nature
Relationship, Dakami Ya Nan Dagami, p. 36, Papers and
222

Proceedings of the 1st Cordillera Muti-Sectoral Land


Congress, 11-14 March 1983, Cordillera Consultative
Committee [1984].
223

Section 2, Article XII.

A "co-production agreement" is defined as one wherein the


government provides input to the mining operation other than
the mineral resource- Section 26 (b), R.A. 7942, the Philippine
Mining Act of 1995.
224

A "joint venture agreement" is one where a joint-venture


company is organized by the government and the contractor
with both parties having equity shares, and the government
entitled to a share in the gross output- Section 26 (c), R.A.
7942.
225

229

Section 3 [b], R.A. 7076.

230

NCIP Administrative Order No. 1, Series of 1998.

In Republic v. Court of Appeals, 160 SCRA 228, 239 [1988],


Cruz, J., ponente, it was declared that if a person is the owner
of a piece of agricultural land on which minerals are
discovered, his ownership of such land does not give him the
right to extract or utilize the said minerals without the
permission of the State to which such minerals belong- also
cited in H. de Leon, Phil. Constitutional Law, Principles and
Cases, vol. 2, pp. 800-801 [1999].
231

See Ground I, Grounds to Issue Writ of Prohibition, Petition,


p. 14.
232

Section 7 (b) is subject to Section 56 of the same law which


provides:
233

A mineral "production-sharing agreement" is one where the


government grants to the contractor the exclusive right to
conduct mining operations within a contract area and shares in
the gross output. The contractor provides the financing,
technology, management and personnel necessary for the
implementation of the agreement- Section 26 (a), R.A. 7942.
226

227

"Sec. 56. Existing Property Rights Regimes.- Property


rights within the ancestral domains already existing
and/or vested upon effectivity of this Act, shall be
recognized and respected."
The law took effect 15 days upon publication in the
O.G. or in any 2 newspapers of general circulation (Sec.
84, IPRA). The IPRA was published in the Chronicle
and Malaya on Nov. 7, 1997.

Section 26, R.A. 7942.

Section 3 [d], People's Small-Scale Mining Act of 1991


(R.A. 7076) provides:
228

"Sec. 3 [d] 'Small-scale mining contract' refers to coproduction, joint venture or mineral production sharing
agreement between the State and a small-scale mining
contractor for the small-scale utilization of a plot of
mineral land."

Section 9 of the IPRA also gives the ICCs/IPs the ff.


responsibilities over their ancestral domains:
234

(a) Maintain Ecological Balance- To preserve, restore,


and maintain a balanced ecology in the ancestral domain

by protecting the flora and fauna, watershed areas, and


other reserves;

237

See infra., pp. 77-79?.

Andrew Gray, The Indigenous Movement in Asia,


Indigenous Peoples of Asia, ed. By Barnes, Gray and
Kingsbury, pub. By Ass'n. for Asian Studies, at 35, 42 [1995].
238

(b) Restore Denuded Areas.- To actively initiate,


undertake and participate in the reforestation of denuded
areas and other development programs and projects
subject to just and reasonable renumeration;
(c) Observe Laws.- To observe and comply with the
provisions of this Act and the rules and regulations for
its effective implementation."
Section 58 of the same law also mandates that ancestral
domains or portions thereof, which are found to be
necessary for critical watersheds, mangroves, wildlife
sanctuaries, wilderness, protected areas, forest cover, or
reforestation as determined by appropriate agencies with
the full participation of the ICCs/IPs concerned shall be
maintained, managed and developed for such purposes.
The ICCs/IPs concerned shall be given the
responsibility to maintain, develop, protect and conserve
such areas with the full and effective assistance of
government agencies.
Hector S. de Leon, Textbook on the New Philippine
Constitution pp. 473-474 [1987] citing the 1986 UP Law
Constitution Project, The National Economy and Patrimony, p.
11.
235

Under the Small-Scale Mining Act of 1991, "small-scale


mining" refers to "mining activities which rely heavily on
manual labor using simple implements and methods and do not
use explosives or heavy mining equipment"- Section 3 [b],
R.A. 7076.

E.g. International Indian Treaty Council, World Council of


IPs.
239

Gray, The Indigenous Movement in Asia, supra, at 44, citing


the International Work Group for Indigenous Affairs, 1988.
240

Jose Paulo Kastrup, The Internationalization of Indigenous


Rights from the Environmental and Human Rights Perspective,
32 Texas International Law Journal 97, 102 [1997].
241

Benedict Kingsbury, "Indigenous Peoples" in International


Law: A Constructivist Approach to the Asian Controversy, The
American Journal of International Law, vol. 92: 414, 429
[1998].
242

The World Bank supported the Chico Dam project. Due to


the Kalingas' opposition, the WB pulled out of the project but
the conflict between the Philippine government and the natives
endured long after- Marcus Colchester, Indigenous Peoples'
Rights and Sustainable Resource Use in South and Southeast
Asia, Indigenous Peoples of Asia, supra, pp. 59, 71-72.
243

244

Kingsbury, supra, at 417.

245

Section 22, Article II, 1987 Constitution.

236

Interpellation of Senator Flavier on S.B. No. 1728,


Deliberation on Second Reading, November 20, 1996, p. 20.
246

Guide to R.A. 8371, Coalition for IPs Rights and Ancestral


Domains, the International Labor Organization, and the ILOBilance- Asia Dep't, p. 3 [1999].
247

Also referred to as the "Indigenous and Tribal Peoples


Convention, 1989."
248

249

See Introduction to ILO Convention No. 169, par. 4.

250

Id., pars. 5 and 6.

Perfecto V. Fernandez, Towards a Definition of National


Policy on Recognition of Ethnic Law within the Philippine
Legal Order, 55 P.L.J. 383, 385 [1980].
251

Samuel K. Tan, A History of the Philippines, Manila Studies


Association, Inc. and the Phil. National Historical Society, Inc.,
p. 6 [1997].
252

253

Fernandez, supra, at 385, 391.

The Lawphil Project - Arellano Law Foundation

SEPARATE OPINION
VITUG, J.:
An issue of grave national interest indeed deserves a proper place
in any forum and, when it shows itself in a given judicial
controversy, the rules of procedure, like locus standi, the propriety
of the specific remedy invoked, or the principle of hierarchy of
courts, that may ordinarily be raised by party-litigants, should

not be so perceived as good and inevitable justifications for


advocating timidity, let alone isolationism, by the Court.
A cardinal requirement, to which I agree, is that one who invokes the
Courts adjudication must have a personal and substantial interest in
the dispute;1 indeed, the developing trend would require a logical
nexus between the status asserted and the claim sought to be
adjudicated in order to ensure that one is the proper and appropriate
party to invoke judicial power.2 The rule requires a party to aptly show
a personal stake in the outcome of the case or an injury to himself that
can be redressed by a favorable decision so as to warrant his
invocation of the Courts jurisdiction and to render legally feasible the
exercise of the Courts remedial powers in his behalf. If it were
otherwise, the exercise of that power can easily become too unwieldy
by its sheer magnitude and scope to a point that may, in no small
measure, adversely affect its intended essentiality, stability and
consequentiality.
Nevertheless, where a most compelling reason exits, such as when the
matter is of transcendental importance and paramount interest to the
nation,3 the Court must take the liberal approach that recognizes the
legal standing of nontraditional plaintiffs, such as citizens and
taxpayers, to raise constitutional issues that affect them.4 This Court
thus did so in a case5 that involves the conservation of our forests for
ecological needs. Until and exact balance is struck, the Court must
accept an eclectic notion that can free itself from the bondage of
legal nicety and hold trenchant technicalities subordinate to what
may be considered to be of overriding concern.
The petition seeks a declaration by the Court of unconstitutionality of
certain provisions of Republic Act No. 8371, a law that obviously is
yet incapable of exact equation in its significance to the nation and its
people now and in the generations yet to come. Republic Act No.
8371, otherwise also known as the Indigenous Peoples Rights Act of
1997 ("IPRA"), enacted into law in 1997 and made effective on 22

November 1997, is apparently intended to be a legislative response to


the 1987 Constitution which recognizes the rights of indigenous
cultural communities "within the framework of national unity and
development"6 and commands the State, "subject to the provisions of
this Constitution and national development policies and
programs," to protect the rights of indigenous cultural communities
to their ancestral lands in order to ensure their economic, social, and
cultural well-being.7
Among the assailed provisions in IPRA is its Section 3(a) which
defines "ancestral domains" to embrace "all areas generally
belonging to ICCs/IPs comprising lands, inland waters, coastal
areas, and natural resources" including "ancestral lands, forest,
pasture, residential, agricultural, and other lands individually
owned whether alienable and disposable or otherwise," over
which indigenous cultural communities/indigenous
peoples ("ICCs/IPs") could exercise virtual ownership and control.
IPRA effectively withdraws from the public domain the so-called
ancestral domains covering literally millions of hectares. The
notion of community property would comprehend not only
matters of proprietary interest but also some forms of selfgovernance over the curved-out territory. This concept is
elaborated in Section 7 of the law which states that the "rights of
ownership and possession of ICCs/IPs to their ancestral domains shall
be recognized and protected," subsumed under which would
encompass the right of ownership (paragraph a); the right to
develop, control and use lands and natural resources, including
"the right to negotiate the terms and conditions for the
exploration of natural resources in the areas for the purpose of
ensuring ecological, environmental protection and the conservation
measures, pursuant to national and customary laws;" (par. b);
the right to stay in the territories (par. c); the right to return to
their abandoned lands in case of displacement (par. d); the right to
regulate entry of migrants (par. e); the right to claim parts of

ancestral domains previously reserved (par. g); and the right to


resolve land conflicts in accordance primarily with customary law
(par. h). Concurrently, Section 57 states that ICCs/IPs shall be given
"priority rights in the harvesting, extraction, development or
exploitation of any natural resources within the ancestral
domains." These provisions of IPRA, in their totality, are, in my
view, beyond the context of the fundamental law and virtually
amount to an undue delegation, if not an unacceptable abdication,
of State authority over a significant area of the country and its
patrimony.
Article XII of the 1987 Constitution expresses that all "lands of the
public domain, waters, minerals, coal, petroleum, and other
mineral oils, all forces of potential energy, fisheries, forest or
timber, wildlife, flora and fauna, and other natural resources are
owned by the State," and, with the exception of agricultural lands,
"shall not be alienated." It ordains that the "exploration,
development, and utilization of natural resources shall be under
the full control and supervision of the State."8
These provisions had roots in the 1935 Constitution which, along with
some other specific mandates in the 1935 Constitution, forming
Article XII under the title "Conservation and Utilization of Natural
Resources", were derived largely from the report of the Committee on
Nationalization and Preservation of Lands and other Natural
Resources.9 According to the Committee report, among the principles
upon which these provisions were based, was "that the land, minerals,
forest and other natural resources constitute the exclusive heritage of
the Filipino Nation," and should thereby "be preserved for those under
the sovereign authority of the Nation and for their posterity."10 The
delegates to the 1934 Constitutional Convention were of the
unanimous view that the "policy on natural resources, being
fundamental to the nations survival should not be left to the changing
mood of the lawmaking body."11

The 1987 Constitution, like the precursor provisions in the 1935 and
1973 Constitutions, thus expresses thisregalian doctrine of the old,
and the domainial doctrine of the new, that all lands and natural
resources belong to the state other than those which it recognizes to be
of private ownership. Except for agricultural lands of the public
domain which alone may be alienated, forest or timber, and
mineral lands, as well as all other natural resources, of the
country must remain with the state, the exploration, development
and utilization of which shall be subject to its full control and
supervision albeit allowing it to enter into co-production, joint
venture or production-sharing agreements, or into agreements with
foreign-owned corporations involving technical or financial assistance
for large-scale exploration, development and utilization.12
The decision of the United States Supreme Court in Cario vs.
Insular Government,13 holding that a parcel of land held since time
immemorial by individuals under a claim of private ownership is
presumed never to have been public land and cited to downgrade the
application of the regalian doctrine, cannot override the collective
will of the people expressed in the Constitution. It is in them that
sovereignty resides and from them that all government authority
emanates.14 It is not then for a court ruling or any piece of legislation
to be conformed to by the fundamental law, but it is for the former to
adapt to the latter, and it is the sovereign act that must, between
them, stand inviolate.

The second paragraph of Section 5 of Article XII of the Constitution


allows Congress to provide "for the applicability of customary laws
governing property rights or relations in determining the ownership
and extent of ancestral domains." I do not see this statement as saying
that Congress may enact a law that would simply express that
"customary laws shall govern" and end it there. Had it been so, the
Constitution could have itself easily provided without having to still
commission Congress to do it. Mr. Chief Justice Davide has explained
this authority of Congress, during the deliberations of the 1986
Constitutional Convention, thus:
"Mr. Davide. x x x Insofar as the application of the customary laws
governing property rights or relations in determining the ownership
and extent of the ancestral domain is concerned, it is respectfully
submitted that the particular matter must be submitted to Congress. I
understand that the idea of Comm. Bennagen is for the possibility of
the codification of these customary laws. So before these are codified,
we cannot now mandate that the same must immediately be
applicable. We leave it to Congress to determine the extent of the
ancestral domain and the ownership thereof in relation to whatever
may have been codified earlier. So, in short, let us not put the cart
ahead of the horse."15
The constitutional aim, it seems to me, is to get Congress to look
closely into the customary laws and, with specificity and by
proper recitals, to hew them to, and make them part of, the
stream of laws. The "due process clause," as I so understand it
in Tanada vs. Tuvera16 would require an apt publication of a legislative
enactment before it is permitted to take force and effect. So, also,
customary laws, when specifically enacted to become part of statutory
law, must first undergo that publication to render them
correspondingly binding and effective as such.
Undoubtedly, IPRA has several good points, and I would
respectfully urge Congress to re-examine the law. Indeed, the

State is exhorted to protect the rights of indigenous cultural


communities to their ancestral lands, a task that would entail a
balancing of interest between their specific needs and the
imperatives of national interest.

10

Ibid., p. 595.

11

Ibid., p. 600.

CONST., Art. XII, Sec. 2; Miners Association of the


Philippines, Inc., vs. Factoran, Jr., 240 SCRA 100.
12

WHEREFORE, I vote to grant the petition.

13

41 Phil. 935.

14

CONST., Art. II, Sec. 1.

15

4 Record of the Constitutional Commission 32.

16

146 SCRA 446.

Footnotes
People vs. Vera, 65 Phil. 56, 89; Macasiano vs. National
Housing Authority, 224 SCRA 236, 244.
1

Am Jur 189, p. 591, S. vD., 410 US 641, 35 L Ed 2d 536,


93 S Ct 1146.
2

The Lawphil Project - Arellano Law Foundation

Legaspi vs. Civil Service Commission, 150 SCRA 530, 540;


Taada vs. Tuvera, 136 SCRA 27, 36, 37.
3

Defensor Santiago, Miriam, Constitutional Law, First Edition,


1994, p. 11; see also Rev. Fr. Joaquin Bernas, S.J., on the 1987
Constitution of the Republic of the Philippines, 1996 Ed., pp.
336-337.

SEPARATE OPINION

Oposa vs. Factoran, Jr., 224 SCRA 792.

Art. 11, Sec. 22.

Art. XII, Sec. 5.

Sec. 2.

II Aruego, The Framing of the Philippine Constitution, p. 594.

KAPUNAN, J.:
You ask if we own the land. . . How can you own that which will
outlive you? Only the race own the land because only the race lives
forever. To claim a piece of land is a birthright of every man. The
lowly animals claim their place; how much more man? Man is born to
live. Apu Kabunian, lord of us all, gave us life and placed us in the
world to live human lives. And where shall we obtain life? From the
land. To work (the land) is an obligation, not merely a right. In tilling
the land, you possess it. And so land is a grace that must be nurtured.
To enrich it and make it fructify is the eternal exhortation of Apu
Kabunian to all his children. Land is sacred. Land is beloved. From its
womb springs life.

- Macli-ing Dulag, Chieftain of the Kalinga Tribe (quoted in Ponciano


L. Bennagen, "Tribal Filipinos" in Indigenous View of Land and the
Environment, ed. Shelton H. Davis, the World Bank Discussion
Papers, No. 188, pp. 71-72.)

been confiscated, occupied, used or damaged without the free and


informed consent of the indigenous peoples.

It is established doctrine that a statute should be construed whenever


possible in harmony with, rather than in violation of, the
Constitution.1 The presumption is that the legislature intended to enact
a valid, sensible and just law and one which operates no further than
may be necessary to effectuate the specific purpose of the law.2

The term "indigenous" traces its origin to the Old Latin word indu,
meaning "within." In the sense the term has come to be used, it is
nearer in meaning to the Latin word indigenus, which means
"native."3 "Indigenous" refers to that which originated or has been
produced naturally in a particular land, and has not been introduced
from the outside.4 In international law, the definition of what
constitutes "indigenous peoples" attains some degree of controversy.
No definition of the term "indigenous peoples" has been adopted by
the United Nations (UN), although UN practice has been guided by a
working definition in the 1986 Report of UN Special Rapporteur
Martinez Cobo:5

The challenged provisions of the Indigenous Peoples Rights Act


(IPRA) must be construed in view of such presumption of
constitutionality. Further, the interpretation of these provisions should
take into account the purpose of the law, which is to give life to the
constitutional mandate that the rights of the indigenous peoples be
recognized and protected.
The struggle of our indigenous peoples to reclaim their ancestral lands
and domains and therefore, their heritage, is not unique. It is one that
they share with the red-skinned "Indians" of the United States, with
the aborigines of Australia, the Maori of New Zealand and the Sazmi
of Sweden, to name a few. Happily, the nations in which these
indigenous peoples live all have enacted measures in an attempt to
heal an oppressive past by the promise of a progressive future. Thus
has the international community realized the injustices that have been
perpetrated upon the indigenous peoples. This sentiment among the
family of nations is expressed in a number of documents, the most
recent and most comprehensive of which is the Draft United Nations
Declaration on the Rights of Indigenous Peoples which was adopted
by the UN Sub-Commission on Prevention of Discrimination and
Protection of Minorities by its resolution on August 26, 1994. Among
the rights recognized by the UN Draft is the restitution of lands,
territories and even the resources which the indigenous peoples have
traditionally owned or otherwise occupied or used, and which have

A Historical Backdrop on the Indigenous Peoples

Indigenous communities, peoples and nations are those which, having


a historical continuity with pre-invasion and pre-colonial societies that
developed on their territories, consider themselves distinct from other
sections of the societies now prevailing in those territories, or parts of
them. They form at present non-dominant sections of society and are
determined to preserve, develop and transmit to future generations
their ancestral territories, and their ethnic identity, as the basis of their
continued existence as peoples, in accordance with their own cultural
patterns, social institutions and legal systems.
This historical continuity may consist of the continuation, for an
extended period reaching into the present, of one or more of the
following factors:
(a) Occupation of ancestral lands, or at least of part of them;
(b) Common ancestry with the original occupants of these
lands;

(c) Culture in general, or in specific manifestations (such as


religion, living under a tribal system, membership of an
indigenous community, dress, means of livelihood, life-style,
etc.);
(d) Language (whether used as the only language, as mothertongue, as the habitual means of communication at home or in
the family, or as the main, preferred, habitual, general or
normal language);
(e) Residence in certain parts of the country; or in certain
regions of the world;
(f) Other relevant facts.6
In Philippine constitutional law, the term "indigenous peoples"
pertains to those groups of Filipinos who have retained a high degree
of continuity from pre-Conquest culture.7 Philippine legal history,
however, has not been kind to the indigenous peoples, characterized
them as "uncivilized,"8 "backward people,"9 with "barbarous
practices"10 and "a low order of intelligence."11
Drawing inspiration from both our fundamental law and international
law, IPRA now employs the politically-correct conjunctive term
"indigenous peoples/indigenous cultural communities" as follows:
Sec. 3. Definition of Terms.- For purposes of this Act, the following
terms shall mean:
xxx
(h) Indigenous peoples/Indigenous cultural communities. - refer to a
group of people or homogenous societies identified by self-ascription
and ascription by others, who have continuously lived as organized
community on communally bounded and defined territory, and who

have, under claims of ownership since time immemorial, occupied,


possessed and utilized such territories, sharing common bonds of
language, customs, traditions, and other distinctive cultural traits, or
who have, through resistance to political, social and cultural inroads
of colonization, non-indigenous religions and cultures, became
historically differentiated from the majority of Filipinos. Indigenous
peoples shall likewise include peoples who are regarded as indigenous
on account of their descent from the populations which inhabited the
country at the time of conquest or colonization, or at the time of
inroads of non-indigenous religions and cultures, or the establishment
of present State boundaries, who retain some or all of their own
social, economic, cultural and political institutions, but who may have
been displaced from their traditional domains or who may have
resettled outside their ancestral domains x x x.
Long before the Spaniards set foot in these islands, the indigenous
peoples were already plowing our soil and hunting in our forests. The
Filipinos of Aeta and Malay stock, who were the original inhabitants
of our archipelago, were, at that time, practicing a native culture.
From the time the Spaniards arrived up to the early part of the
American regime,12 these native inhabitants resisted foreign invasion,
relentlessly fighting for their lands. Today, from the remote uplands of
Northern Luzon, to Palawan, Mindoro and Mindanao, the indigenous
peoples continue to live on and cultivate their ancestral lands, the
lands of their forefathers.
Though Filipinos today are essentially of the same stock as the
indigenous peoples, our national culture exhibits only the last vestiges
of this native culture. Centuries of colonial rule and neocolonial
domination have created a discernible distinction between the cultural
majority and the group of cultural minorities.13 The extant Philippine
national culture is the culture of the majority; its indigenous roots
were replaced by foreign cultural elements that are decidedly
pronounced, if not dominant.14 While the culture of the majority

reoriented itself to Western influence, the culture of the minorities has


retained its essentially native character.
One of every six Filipinos is a member of an indigenous cultural
community. Around twelve million Filipinos are members of the one
hundred and ten or so indigenous cultural communities,15 accounting
for more than seventeen per centum of the estimated seventy million
Filipinos16 in our country. Sadly, the indigenous peoples are one of the
poorest sectors of Philippine society. The incidence of poverty and
malnutrition among them is significantly higher than the national
average. The indigenous peoples are also among the most powerless.
Perhaps because of their inability to speak the language of law and
power, they have been relegated to the fringes of society. They have
little, if any, voice in national politics and enjoy the least protection
from economic exploitation.
The Constitutional Policies on Indigenous Peoples
The framers of the 1987 Constitution, looking back to the long
destitution of our less fortunate brothers, fittingly saw the historic
opportunity to actualize the ideals of people empowerment and social
justice, and to reach out particularly to the marginalized sectors of
society, including the indigenous peoples. They incorporated in the
fundamental law several provisions recognizing and protecting the
rights and interests of the indigenous peoples, to wit:
Sec. 22. The State recognizes and promotes the rights of indigenous
peoples within the framework of national unity and development.17
Sec. 5. The State, subject to the provisions of this Constitution and
national development policies and programs, shall protect the rights of
indigenous cultural communities to their ancestral lands to ensure
their economic, social, and cultural well-being.

The Congress may provide for the applicability of customary laws


governing property rights and relations in determining the ownership
and extent of ancestral domains.18
Sec. 1. The Congress shall give the highest priority to the enactment
of measures that protect and enhance the right of all the people to
human dignity, reduce social, economic and political inequalities, and
remove cultural inequities by equitably diffusing wealth and political
power for the common good.
To this end, the State shall regulate the acquisition, ownership, use
and disposition of property and its increments.19
Sec. 6. The State shall apply the principles of agrarian reform or
stewardship, whenever applicable in accordance with law, in the
disposition and utilization of other natural resources, including lands
of the public domain under lease or concession, subject to prior rights,
homestead rights of small settlers, and the rights of indigenous
communities to their ancestral lands.20
Sec. 17. The State shall recognize, respect, and protect the rights of
indigenous cultural communities to preserve and develop their
cultures, traditions, and institutions. It shall consider these rights in
the formulation of national plans and policies.21
Sec. 12. The Congress may create a consultative body to advise the
President on policies affecting indigenous cultural communities, the
majority of the members of which shall come from such
communities.22
IPRA was enacted precisely to implement the foregoing constitutional
provisions. It provides, among others, that the State shall recognize
and promote the rights of indigenous peoples within the framework of
national unity and development, protect their rights over the ancestral
lands and ancestral domains and recognize the applicability of

customary laws governing property rights or relations in determining


the ownership and extent of the ancestral domains.23 Moreover, IPRA
enumerates the civil and political rights of the indigenous
peoples;24 spells out their social and cultural rights;25 acknowledges a
general concept of indigenous property right and recognizes title
thereto;26 and creates the NCIP as an independent agency under the
Office of the President.27
Preliminary Issues
A. The petition presents an actual controversy.
The time-tested standards for the exercise of judicial review are: (1)
the existence of an appropriate case; (2) an interest personal and
substantial by the party raising the constitutional question; (3) the plea
that the function be exercised at the earliest opportunity; and (4) the
necessity that the constitutional question be passed upon in order to
decide the case.28
Courts can only decide actual controversies, not hypothetical
questions or cases.29 The threshold issue, therefore, is whether an
"appropriate case" exists for the exercise of judicial review in the
present case.
An "actual case or controversy" means an existing case or controversy
which is both ripe for resolution and susceptible of judicial
determination, and that which is not conjectural or anticipatory,30 or
that which seeks to resolve hypothetical or feigned constitutional
problems.31 A petition raising a constitutional question does not
present an "actual controversy," unless it alleges a legal right or
power. Moreover, it must show that a conflict of rights exists, for
inherent in the term "controversy" is the presence of opposing views
or contentions.32 Otherwise, the Court will be forced to resolve issues
which remain unfocused because they lack such concreteness
provided when a question emerges precisely framed from a clash of

adversary arguments exploring every aspect of a multi-faceted


situation embracing conflicting and demanding interests.33 The
controversy must also be justiciable; that is, it must be susceptible of
judicial determination.34
In the case at bar, there exists a live controversy involving a clash of
legal rights. A law has been enacted, and the Implementing Rules and
Regulations approved. Money has been appropriated and the
government agencies concerned have been directed to implement the
statute. It cannot be successfully maintained that we should await the
adverse consequences of the law in order to consider the controversy
actual and ripe for judicial resolution. It is precisely the contention of
the petitioners that the law, on its face, constitutes an unconstitutional
abdication of State ownership over lands of the public domain and
other natural resources. Moreover, when the State machinery is set
into motion to implement an alleged unconstitutional statute, this
Court possesses sufficient authority to resolve and prevent imminent
injury and violation of the constitutional process.
B. Petitioners, as citizens and taxpayers, have the requisite standing
to raise the constitutional questions herein.
In addition to the existence of an actual case or controversy, a person
who assails the validity of a statute must have a personal and
substantial interest in the case, such that, he has sustained, or will
sustain, a direct injury as a result of its enforcement.35 Evidently, the
rights asserted by petitioners as citizens and taxpayers are held in
common by all the citizens, the violation of which may result only in
a "generalized grievance".36 Yet, in a sense, all citizens and taxpayers
suits are efforts to air generalized grievances about the conduct of
government and the allocation of power.37
In several cases, the Court has adopted a liberal attitude with regard to
standing.38 The proper party requirement is considered as merely
procedural,39 and the Court has ample discretion with regard

thereto.40 As early as 1910, the Court in the case of Severino vs.


Governor General 41 held:

In Garcia vs. Board of Investments,45 the Court upheld the "public


right" to be heard or consulted on matters of national concern.

x x x When the relief is sought merely for the protection of private


rights, the relator must show some personal or special interest in the
subject matter, since he is regarded as the real party in interest and his
right must clearly appear. Upon the other hand, when the question is
one of public right and the object of the mandamus is to procure the
enforcement of a public duty, the people are regarded as the real
party in interest, and the relator at whose instigation the
proceedings are instituted need not show that he has any legal or
special interest in the result, it being sufficient to show that he is a
citizen and as such interested in the execution of the laws.42

In Oposa v. Factoran,46 the Court recognized the "public right" of


citizens to "a balanced and healthful ecology which, for the first time
in our nations constitutional history, is solemnly incorporated in the
fundamental law."47 Mr. Justice (now Chief Justice) Hilario G. Davide,
Jr., delivering the opinion of the Court, stated that:

This Court has recognized that a "public right," or that which belongs
to the people at large, may also be the subject of an actual case or
controversy. In Severino, we ruled that a private citizen may enforce a
"public right" in behalf of other citizens. We opined therein that:
The right which [petitioner] seeks to enforce is not greater or
different from that of any other qualified elector in the municipality of
Silay. It is also true that the injury which he would suffer in case he
fails to obtain the relief sought would not be greater or different from
that of the other electors; but he is seeking to enforce a public
right as distinguished from a private right. The real party in interest
is the public, or the qualified electors of the town of Silay. Each
elector has the same right and would suffer the same injury. Each
elector stands on the same basis with reference to maintaining a
petition whether or not the relief sought by the relator should be
granted.43
In Taada v. Tuvera,44 the Court enforced the "public right" to due
process and to be informed of matters of public concern.

Such a right belongs to a different category of rights altogether for it


concerns nothing less than self-preservation and self-perpetuationaptly and fittingly stressed by petitioners-the advancement of which
may even be said to predate all governments and constitutions. As a
matter of fact, these basic rights need not even be written in the
Constitution for they are assumed to exist from the inception of
humankind.48
Petitioners, as citizens, possess the "public right" to ensure that the
national patrimony is not alienated and diminished in violation of the
Constitution. Since the government, as the guardian of the national
patrimony, holds it for the benefit of all Filipinos without distinction
as to ethnicity, it follows that a citizen has sufficient interest to
maintain a suit to ensure that any grant of concessions covering the
national economy and patrimony strictly complies with constitutional
requirements. Thus, the preservation of the integrity and inviolability
of the national patrimony is a proper subject of a citizens suit.
In addition, petitioners, as taxpayers, possess the right to restrain
officials from wasting public funds through the enforcement of an
unconstitutional statute. It is well-settled that a taxpayer has the right
to enjoin public officials from wasting public funds through the
implementation of an unconstitutional statute,49 and by necessity, he
may assail the validity of a statute appropriating public funds.50 The
taxpayer has paid his taxes and contributed to the public coffers and,
thus, may inquire into the manner by which the proceeds of his taxes

are spent. The expenditure by an official of the State for the purpose
of administering an invalid law constitutes a misapplication of such
funds.51
The IPRA appropriates funds as indicated in its title: "An Act to
Recognize, Protect and Promote the Rights of Indigenous Cultural
Communities/Indigenous Peoples, Creating the National Commission
on Indigenous Peoples, Establishing Implementing
Mechanisms, Appropriating Funds Therefor, and for Other
Purposes." In the same manner, Section 79 authorizes for the
expenditure of public funds by providing that "the amount necessary
to finance [its] initial implementation shall be charged against the
current year's appropriation for the Office for Northern Cultural
Communities (the "ONCC") and the Office for Southern Cultural
Communities (the "OSCC"),"52which were merged as organic offices
of the NCIP.53 Thus, the IPRA is a valid subject of a taxpayers suit.
C. The petition for prohibition and mandamus is not an improper
remedy.
Prohibition is an extraordinary writ directed against any tribunal,
corporation, board, officer or person, whether exercising judicial,
quasi-judicial or ministerial functions, ordering said entity or person
to desist from further proceedings when said proceedings are without
or in excess of said entitys or persons jurisdiction, or are
accompanied with grave abuse of discretion, and there is no appeal or
any other plain, speedy and adequate remedy in the ordinary course of
law.54 Mandamus, on the other hand, is an extraordinary writ
commanding a tribunal, corporation, board, officer or person,
immediately or at some other specified time, to do the act required to
be done, when said entity or person unlawfully neglects the
performance of an act which the law specifically enjoins as a duty
resulting from an office, trust or station, or when said entity or person
unlawfully excludes another from the use and enjoyment of a right or

office to which such other is entitled, and there is no other plain,


speedy and adequate remedy in the ordinary course of law.55
In this case, the petitioners pray that respondents be restrained from
implementing the challenged provisions of the IPRA and its
Implementing Rules and the assailed DENR Circular No. 2, series of
1998, and that the same officials be enjoined from disbursing public
funds for the implementation of the said law and rules. They further
ask that the Secretary of the DENR be compelled to perform his duty
to control and supervise the activities pertaining to natural resources.
Prohibition will lie to restrain the public officials concerned from
implementing the questioned provisions of the IPRA and from
disbursing funds in connection therewith if the law is found to be
unconstitutional. Likewise,mandamus will lie to compel the Secretary
of the DENR to perform his duty to control and supervise the
exploration, development, utilization and conservation of the
countrys natural resources. Consequently, the petition for prohibition
and mandamus is not an improper remedy for the relief sought.
D. Notwithstanding the failure of petitioners to observe the hierarchy
of courts, the Court assumes jurisdiction over the petition in view of
the importance of the issues raised therein.
Between two courts of concurrent original jurisdiction, it is the lower
court that should initially pass upon the issues of a case. That way, as
a particular case goes through the hierarchy of courts, it is shorn of all
but the important legal issues or those of first impression, which are
the proper subject of attention of the appellate court. This is a
procedural rule borne of experience and adopted to improve the
administration of justice.
This Court has consistently enjoined litigants to respect the hierarchy
of courts. Although this Court has concurrent jurisdiction with the
Regional Trial Courts and the Court of Appeals to issue writs

of certiorari, prohibition, mandamus, quo warranto, habeas


corpus and injunction,56 such concurrence does not give a party
unrestricted freedom of choice of court forum. The resort to this
Courts primary jurisdiction to issue said writs shall be allowed only
where the redress desired cannot be obtained in the appropriate courts
or where exceptional and compelling circumstances justify such
invocation.57 We held in People v. Cuaresma58 that:
A becoming regard for judicial hierarchy most certainly indicates that
petitions for the issuance of extraordinary writs against first level
("inferior") courts should be filed with the Regional Trial Court, and
those against the latter, with the Court of Appeals. A direct
invocation of the Supreme Courts original jurisdiction to issue
these writs should be allowed only where there are special and
important reasons therefor, clearly and specifically set out in the
petition. This is established policy. It is a policy necessary to prevent
inordinate demands upon the Courts time and attention which are
better devoted to those matters within its exclusive jurisdiction, and to
prevent further over-crowding of the Courts docket x x x.59 (Emphasis
supplied.)
IPRA aims to rectify the historical injustice inflicted upon indigenous
peoples. Its impact upon the lives not only of the indigenous peoples
but also upon the lives of all Filipinos cannot be denied. The
resolution of this case by the Court at the earliest opportunity is
necessary if the aims of the law are to be achieved. This reason is
compelling enough to allow petitioners invocation of this Courts
jurisdiction in the first instance.
Substantive Issues
Primary Issue
The issue of prime concern raised by petitioners and the Solicitor
General revolves around the constitutionality of certain provisions of

IPRA, specifically Sections 3(a), 3(b), 5, 6, 7, 8, 57, 58 and 59. These


provisions allegedly violate Section 2, Article XII of the Constitution,
which states:
Sec. 2. All lands of the public domain, waters, minerals, coal,
petroleum, and other mineral oils, all forces of potential energy,
fisheries, forests or timber, wildlife, flora and fauna, and other natural
resources are owned by the State. With the exception of agricultural
lands, all other natural resources shall not be alienated. The
exploration, development, and utilization of natural resources shall be
under the full control and supervision of the State. The State may
directly undertake such activities, or it may enter into co-production,
joint venture, or production-sharing agreements with Filipino citizens,
or corporations or associations at least sixty per centum of whose
capital is owned by such citizens. Such agreements may be for a
period not exceeding twenty-five years, renewable for not more than
twenty-five years, and under such terms and conditions as may be
provided by law. In cases of water rights for irrigation, water supply,
fisheries, or industrial uses other than the development of water
power, beneficial use may be the measure and limit of the grant.
The State shall protect the nations marine wealth in its archipelagic
waters, territorial sea, and exclusive economic zone, and reserve its
use and enjoyment exclusively to Filipino citizens.
The Congress, may, by law, allow small-scale utilization of natural
resources by Filipino citizens, as well as cooperative fish farming,
with priority to subsistence fishermen and fishworkers in rivers, lakes,
bays and lagoons.
The President may enter into agreements with foreign-owned
corporations involving either technical or financial assistance for
large-scale exploration, development and utilization of minerals,
petroleum, and other mineral oils according to the general terms and
conditions provided by law, based on real contributions to the

economic growth and general welfare of the country. In such


agreements, the State shall promote the development and use of local
scientific and technical resources.
The President shall notify the Congress of every contract entered into
in accordance with this provision, within thirty days from its
execution.
Under IPRA, indigenous peoples may obtain the recognition of their
right of ownership60 over ancestral lands and ancestral domains by
virtue of native title.61 The term "ancestral lands" under the statute
refers to landsoccupied by individuals, families and clans who are
members of indigenous cultural communities, including residential
lots, rice terraces or paddies, private forests, swidden farms and tree
lots. These lands are required to have been "occupied, possessed and
utilized" by them or through their ancestors "since time immemorial,
continuously to the present".62 On the other hand, "ancestral
domains" is defined as areas generally belonging to indigenous
cultural communities, including ancestral lands, forests, pasture,
residential and agricultural lands, hunting grounds, worship areas, and
lands no longer occupied exclusively by indigenous cultural
communities but to which they had traditional access, particularly the
home ranges of indigenous cultural communities who are still
nomadic or shifting cultivators. Ancestral domains also include inland
waters, coastal areas and natural resources therein.63 Again, the same
are required to have been "held under a claim of ownership, occupied
or possessed by ICCs/IPs, by themselves or through their ancestors,
communally or individually since time immemorial, continuously to
the present".64 Under Section 56, property rights within the ancestral
domains already existing and/or vested upon effectivity of said law
"shall be recognized and respected."
Ownership is the crux of the issue of whether the provisions of IPRA
pertaining to ancestral lands, ancestral domains, and natural resources
are unconstitutional. The fundamental question is, who, between the

State and the indigenous peoples, are the rightful owners of these
properties?
It bears stressing that a statute should be construed in harmony with,
and not in violation, of the fundamental law.65 The reason is that the
legislature, in enacting a statute, is assumed to have acted within its
authority and adhered to the constitutional limitations. Accordingly,
courts should presume that it was the intention of the legislature to
enact a valid, sensible, and just law and one which operates no further
than may be necessary to effectuate the specific purpose of the law.66
A. The provisions of IPRA recognizing the ownership of indigenous
peoples over the ancestral lands and ancestral domains are not
unconstitutional.
In support of their theory that ancestral lands and ancestral domains
are part of the public domain and, thus, owned by the State, pursuant
to Section 2, Article XII of the Constitution, petitioners and the
Solicitor General advance the following arguments:
First, according to petitioners, the King of Spain under international
law acquired exclusive dominion over the Philippines by virtue of
discovery and conquest. They contend that the Spanish King under the
theory of jura regalia, which was introduced into Philippine law upon
Spanish conquest in 1521, acquired title to all the lands in the
archipelago.
Second, petitioners and the Solicitor General submit that ancestral
lands and ancestral domains are owned by the State. They invoke the
theory of jura regalia which imputes to the State the ownership of all
lands and makes the State the original source of all private titles. They
argue that the Philippine State, as successor to Spain and the United
States, is the source of any asserted right of ownership in land.

Third, petitioners and the Solicitor General concede that


the Cario doctrine exists. However, petitioners maintain that the
doctrine merely states that title to lands of the public domain may be
acquired by prescription. The Solicitor General, for his part, argues
that the doctrine applies only to alienable lands of the public domain
and, thus, cannot be extended to other lands of the public domain such
as forest or timber, mineral lands, and national parks.
Fourth, the Solicitor General asserts that even assuming that native
title over ancestral lands and ancestral domains existed by virtue of
the Cario doctrine, such native title was extinguished upon the
ratification of the 1935 Constitution.
Fifth, petitioners admit that Congress is mandated under Section 5,
Article XII of the Constitution to protect that rights of indigenous
peoples to their ancestral lands and ancestral domains. However, they
contend that the mandate is subject to Section 2, Article XII and the
theory of jura regalia embodied therein. According to petitioners, the
recognition and protection under R.A. 8371 of the right of ownership
over ancestral lands and ancestral domains is far in excess of the
legislative power and constitutional mandate of Congress.
Finally, on the premise that ancestral lands and ancestral domains are
owned by the State, petitioners posit that R.A. 8371 violates Section
2, Article XII of the Constitution which prohibits the alienation of
non-agricultural lands of the public domain and other natural
resources.
I am not persuaded by these contentions.

Undue reliance by petitioners and the Solicitor General on the theory


of jura regalia is understandable. Not only is the theory well
recognized in our legal system; it has been regarded, almost with
reverence, as the immutable postulate of Philippine land law. It has
been incorporated into our fundamental law and has been recognized
by the Court.67
Generally, under the concept of jura regalia, private title to land must
be traced to some grant, express or implied, from the Spanish Crown
or its successors, the American Colonial government, and thereafter,
the Philippine Republic. The belief that the Spanish Crown is the
origin of all land titles in the Philippines has persisted because title to
land must emanate from some source for it cannot issue forth from
nowhere.68
In its broad sense, the term "jura regalia" refers to royal rights,69 or
those rights which the King has by virtue of his prerogatives.70 In
Spanish law, it refers to a right which the sovereign has over anything
in which a subject has a right of property or propriedad.71 These were
rights enjoyed during feudal times by the king as the sovereign.
The theory of the feudal system was that title to all lands was
originally held by the King, and while the use of lands was granted
out to others who were permitted to hold them under certain
conditions, the King theoretically retained the title.72 By fiction of law,
the King was regarded as the original proprietor of all lands, and the
true and only source of title, and from him all lands were held.73 The
theory of jura regalia was therefore nothing more than a natural fruit
of conquest.74
The Regalian theory, however, does not negate native title to lands
held in private ownership since time immemorial. In the landmark
case of Cario vs. Insular Government75 the United States Supreme
Court, reversing the decision76of the pre-war Philippine Supreme
Court, made the following pronouncement:

x x x Every presumption is and ought to be taken against the


Government in a case like the present. It might, perhaps, be proper
and sufficient to say that when, as far back as testimony or memory
goes, the land has been held by individuals under a claim of
private ownership, it will be presumed to have been held in the
same way from before the Spanish conquest, and never to have
been public land. x x x.77 (Emphasis supplied.)
The above ruling institutionalized the recognition of the existence of
native title to land, or ownership of land by Filipinos by virtue of
possession under a claim of ownership since time immemorial and
independent of any grant from the Spanish Crown, as an exception to
the theory of jura regalia.
In Cario, an Igorot by the name of Mateo Cario applied for
registration in his name of an ancestral land located in Benguet. The
applicant established that he and his ancestors had lived on the land,
had cultivated it, and had used it as far they could remember. He also
proved that they had all been recognized as owners, the land having
been passed on by inheritance according to native custom. However,
neither he nor his ancestors had any document of title from the
Spanish Crown. The government opposed the application for
registration, invoking the theory of jura regalia. On appeal, the
United States Supreme Court held that the applicant was entitled to
the registration of his native title to their ancestral land.
Cario was decided by the U.S. Supreme Court in 1909, at a time
when decisions of the U.S. Court were binding as precedent in our
jurisdiction.78 We applied the Cario doctrine in the 1946 case of Oh
Cho vs. Director of Lands,79 where we stated that "[a]ll lands that were
not acquired from the Government either by purchase or by grant,
belong to the public domain, but [a]n exception to the rule would be
any land that should have been in the possession of an occupant and
of his predecessors in interest since time immemorial, for such
possession would justify the presumption that the land had never been

part of the public domain or that it had been private property even
before the Spanish conquest."80
Petitioners however aver that the U.S. Supreme Courts ruling
in Cario was premised on the fact that the applicant had complied
with the requisites of acquisitive prescription, having established that
he and his predecessors-in-interest had been in possession of the
property since time immemorial. In effect, petitioners suggest that title
to the ancestral land applied for by Cario was transferred from the
State, as original owner, to Cario by virtue of prescription. They
conclude that the doctrine cannot be the basis for decreeing "by mere
legislative fiatthat ownership of vast tracts of land belongs to
[indigenous peoples] without judicial confirmation."81
The Solicitor General, for his part, claims that the Cario doctrine
applies only to alienable lands of the public domain and, as such,
cannot be extended to other lands of the public domain such as forest
or timber, mineral lands, and national parks.
There is no merit in these contentions.
A proper reading of Cario would show that the doctrine enunciated
therein applies only to lands which have always been considered as
private, and not to lands of the public domain, whether alienable or
otherwise. A distinction must be made between ownership of land
under native title and ownership by acquisitive prescription against
the State. Ownership by virtue of native title presupposes that the land
has been held by its possessor and his predecessors-in-interest in the
concept of an owner since time immemorial. The land is not acquired
from the State, that is, Spain or its successors-in-interest, the United
States and the Philippine Government. There has been no transfer of
title from the State as the land has been regarded as private in
character as far back as memory goes. In contrast, ownership of land
by acquisitive prescription against the State involves a conversion of
the character of the property from alienable public land to private

land, which presupposes a transfer of title from the State to a private


person. Since native title assumes that the property covered by it is
private land and is deemed never to have been part of the public
domain, the Solicitor Generals thesis that native title
under Carioapplies only to lands of the public domain is erroneous.
Consequently, the classification of lands of the public domain into
agricultural, forest or timber, mineral lands, and national parks under
the Constitution82 is irrelevant to the application of
the Cario doctrine because the Regalian doctrine which vests in the
State ownership of lands of the public domain does not cover
ancestral lands and ancestral domains.
Legal history supports the Cario doctrine.
When Spain acquired sovereignty over the Philippines by virtue of its
discovery and occupation thereof in the 16th century and the Treaty of
Tordesillas of 1494 which it entered into with Portugal,83 the
continents of Asia, the Americas and Africa were considered as terra
nullius although already populated by other peoples.84 The discovery
and occupation by the European States, who were then considered as
the only members of the international community of civilized nations,
of lands in the said continents were deemed sufficient to create title
under international law.85
Although Spain was deemed to have acquired sovereignty over the
Philippines, this did not mean that it acquired title to all lands in the
archipelago. By virtue of the colonial laws of Spain, the Spanish
Crown was considered to have acquired dominion only over the
unoccupied and unclaimed portions of our islands.86
In sending the first expedition to the Philippines, Spain did not intend
to deprive the natives of their property. Miguel Lopez de Legazpi was
under instruction of the Spanish King to do no harm to the natives and
to their property. In this regard, an authority on the early Spanish
colonial period in the Philippines wrote:

The government of [the King of Spain] Philip II regarded the


Philippines as a challenging opportunity to avoid a repetition of the
sanguinary conquests of Mexico and Peru. In his written instructions
for the Adelantado Legazpi, who commanded the expedition, Philip II
envisaged a bloodless pacification of the archipelago. This
extraordinary document could have been lifted almost verbatim from
the lectures of the Dominican theologian, Francisco de Vitoria,
delivered in the University of Salamanca. The King instructed
Legazpi to inform the natives that the Spaniards had come to do no
harm to their persons or to their property. The Spaniards intended to
live among them in peace and in friendship and "to explain to them
the law of Jesus Christ by which they will be saved." Although the
Spanish expedition could defend themselves if attacked, the royal
instructions admonished the commander to commit no aggressive act
which might arouse native hostility.87
Spanish colonial laws recognized and respected Filipino landholdings
including native land occupancy.88 Thus, the Recopilacin de Leyes de
las Indias expressly conferred ownership of lands already held by the
natives.89The royal decrees of 1880 and 1894 did not extinguish native
title to land in the Philippines. The earlier royal decree, dated June 25,
1880, provided that all those in "unlawful possession of royal lands"
must legalize their possession by means of adjustment
proceedings,90 and within the period specified. The later royal decree,
dated February 13, 1894, otherwise known as the Maura Law,
declared that titles that were capable of adjustment under the royal
decree of 1880, but for which adjustment was not sought, were
forfeited. Despite the harsh wording of the Maura Law, it was held in
the case of Cario that the royal decree of 1894 should not be
construed as confiscation of title, but merely as the withdrawal of the
privilege of registering such title.91
Neither was native title disturbed by the Spanish cession of the
Philippines to the United States, contrary to petitioners assertion that
the US merely succeeded to the rights of Spain, including the latters

rights over lands of the public domain.92 Under the Treaty of Paris of
December 10, 1898, the cession of the Philippines did not impair any
right to property existing at the time.93 During the American colonial
regime, native title to land was respected, even protected. The
Philippine Bill of 1902 provided that property and rights acquired by
the US through cession from Spain were to be administered for the
benefit of the Filipinos.94 In obvious adherence to libertarian
principles, McKinleys Instructions, as well as the Philippine Bill of
1902, contained a bill of rights embodying the safeguards of the US
Constitution. One of these rights, which served as an inviolable rule
upon every division and branch of the American colonial government
in the Philippines,95 was that "no person shall be deprived of life,
liberty, or property without due process of law."96 These vested rights
safeguarded by the Philippine Bill of 1902 were in turn expressly
protected by the due process clause of the 1935 Constitution.
Resultantly, property rights of the indigenous peoples over their
ancestral lands and ancestral domains were firmly established in law.
Nonetheless, the Solicitor General takes the view that the vested
rights of indigenous peoples to their ancestral lands and domains were
"abated by the direct act by the sovereign Filipino people of ratifying
the 1935 Constitution."97 He advances the following arguments:
The Sovereign, which is the source of all rights including ownership,
has the power to restructure the consolidation of rights inherent in
ownership in the State. Through the mandate of the Constitutions that
have been adopted, the State has wrested control of those portions of
the natural resources it deems absolutely necessary for social welfare
and existence. It has been held that the State may impair vested rights
through a legitimate exercise of police power.
Vested rights do not prohibit the Sovereign from performing acts not
only essential to but determinative of social welfare and existence. To
allow otherwise is to invite havoc in the established social system. x x
x

Time-immemorial possession does not create private ownership in


cases of natural resources that have been found from generation to
generation to be critical to the survival of the Sovereign and its agent,
the State.98
Stated simply, the Solicitor Generals argument is that the State, as the
source of all titles to land, had the power to re-vest in itself, through
the 1935 Constitution, title to all lands, including ancestral lands and
ancestral domains. While the Solicitor General admits that such a
theory would necessarily impair vested rights, he reasons out that
even vested rights of ownership over ancestral lands and ancestral
domains are not absolute and may be impaired by the legitimate
exercise of police power.
I cannot agree. The text of the provision of the 1935 Constitution
invoked by the Solicitor General, while embodying the theory of jura
regalia, is too clear for any misunderstanding. It simply declares that
"all agricultural, timber, and mineral lands of the public domain,
waters, minerals, coal, petroleum, and other mineral oils, all forces of
potential energy, and other natural resources of the Philippines belong
to the State."99 Nowhere does it state that certain lands which are
"absolutely necessary for social welfare and existence," including
those which are notpart of the public domain, shall thereafter be
owned by the State. If there is any room for constitutional
construction, the provision should be interpreted in favor of the
preservation, rather than impairment or extinguishment, of vested
rights. Stated otherwise, Section 1, Article XII of the 1935
Constitution cannot be construed to mean that vested right which had
existed then were extinguished and that the landowners were divested
of their lands, all in the guise of "wrest[ing] control of those portions
of the natural resources [which the State] deems absolutely necessary
for social welfare and existence." On the contrary, said Section
restated the fundamental rule against the diminution of existing rights
by expressly providing that the ownership of lands of the public
domain and other natural resources by the State is "subject to any

existing right, grant, lease, or concessions." The "existing rights" that


were intended to be protected must, perforce, include the right of
ownership by indigenous peoples over their ancestral lands and
domains. The words of the law should be given their ordinary or usual
meaning,100 and the term "existing rights" cannot be assigned an
unduly restrictive definition.
Petitioners concede that Congress is mandated under Section 5,
Article XII of the 1987 Constitution101to protect the rights of
indigenous peoples to their ancestral lands and ancestral domains.
Nonetheless, they contend that the recognition and protection under
IPRA of the right of ownership of indigenous peoples over ancestral
lands and ancestral domains are far in excess of the legislative power
and constitutional mandate of the Congress,102since such recognition
and protection amount to the alienation of lands of the public domain,
which is proscribed under Section 2, Article XII of the Constitution.
Section 5, Article XII of the Constitution expresses the sovereign
intent to "protect the rights of indigenous peoples to their ancestral
lands." In its general and ordinary sense, the term "right" refers to any
legally enforceable claim.103 It is a power, privilege, faculty or demand
inherent in one person and incident upon another.104 When used in
relation to property, "right" includes any interest in or title to an
object, or any just and legal claim to hold, use and enjoy it.105 Said
provision in the Constitution cannot, by any reasonable construction,
be interpreted to exclude the protection of the right of
ownership over such ancestral lands. For this reason, Congress
cannot be said to have exceeded its constitutional mandate and power
in enacting the provisions of IPRA, specifically Sections 7(a) and 8,
which recognize the right of ownership of the indigenous peoples over
ancestral lands.
The second paragraph of Section 5, Article XII also grants Congress
the power to "provide for the applicability of customary laws
governing property rights or relations in determining the ownership

and extent of ancestral domains." In light of this provision, does


Congress have the power to decide whether ancestral domains shall be
private property or part of the public domain? Also, does Congress
have the power to determine whether the "extent" of ancestral
domains shall include the natural resources found therein?
It is readily apparent from the constitutional records that the framers
of the Constitution did not intend Congress to decide whether
ancestral domains shall be public or private property. Rather, they
acknowledged that ancestral domains shall be treated as private
property, and that customary laws shall merely determine whether
such private ownership is by the entire indigenous cultural
community, or by individuals, families, or clans within the
community. The discussion below between Messrs. Regalado and
Bennagen and Mr. Chief Justice Davide, then members of the 1986
Constitutional Commission, is instructive:
MR. REGALADO. Thank you, Madame President. May I seek some
clarifications from either Commissioner Bennagen or Commissioner
Davide regarding this phrase "CONGRESS SHALL PROVIDE FOR
THE APPLICABILITY OF CUSTOMARY LAWS GOVERNING
PROPERTY RIGHTS OR RELATIONS in determining the ownership
and extent of the ancestral domain," because ordinarily it is the law on
ownership and the extent thereof which determine the property rights
or relations arising therefrom. On the other hand, in this proposed
amendment the phraseology is that it is the property rights or relations
which shall be used as the basis in determining the ownership and
extent of the ancestral domain. I assume there must be a certain
difference in the customary laws and our regular civil laws on
property.
MR. DAVIDE. That is exactly the reason, Madam President, why we
will leave it to Congress to make the necessary exception to the
general law on property relations.

MR. REGALADO. I was thinking if Commissioner Bennagen could


give us an example of such a customary law wherein it is the property
rights and relations that determine the ownership and the extent of
that ownership, unlike the basic fundamental rule that it is the
ownership and the extent of ownership which determine the property
rights and relations arising therefrom and consequent thereto. Perhaps,
these customary laws may have a different provision or thrust so that
we could make the corresponding suggestions also by way of an
amendment.
MR. DAVIDE. That is exactly my own perception.
MR. BENNAGEN. Let me put it this way.
There is a range of customary laws governing certain types of
ownership. There would be ownership based on individuals, on
clan or lineage, or on community. And the thinking expressed in the
consultation is that this should be codified and should be recognized
in relation to existing national laws. That is essentially the
concept. 106 (Emphasis supplied.)
The intention to treat ancestral domains as private property is also
apparent from the following exchange between Messrs. Suarez and
Bennagen:
MR. SUAREZ. When we speak of customary laws governing
property rights or relations in determining the ownership and extent of
the ancestral domain, are we thinking in terms of the tribal ownership
or community ownership or of private ownership within the ancestral
lands or ancestral domain?
MR. BENNAGEN. The concept of customary laws is that it is
considered as ownership by private individuals, clans and even
communities.

MR. SUAREZ. So, there will be two aspects to this situation. This
means that the State will set aside the ancestral domain and there is a
separate law for that. Within the ancestral domain it could accept
more specific ownership in terms of individuals within the ancestral
lands.
MR. BENNAGEN. Individuals and groups within the ancestral
domain. 107 (Emphasis supplied.)
It cannot be correctly argued that, because the framers of the
Constitution never expressly mentioned Cario in their deliberations,
they did not intend to adopt the concept of native title to land, or that
they were unaware of native title as an exception to the theory of jura
regalia.108 The framers of the Constitution, as well as the people
adopting it, were presumed to be aware of the prevailing judicial
doctrines concerning the subject of constitutional provisions, and
courts should take these doctrines into consideration in construing the
Constitution.109
Having thus recognized that ancestral domains under the Constitution
are considered as private property of indigenous peoples, the IPRA,
by affirming or acknowledging such ownership through its various
provisions, merely abides by the constitutional mandate and does not
suffer any vice of unconstitutionality.
Petitioners interpret the phrase "subject to the provisions of this
Constitution and national development policies and programs" in
Section 5, Article XII of the Constitution to mean "as subject to the
provision of Section 2, Article XII of the Constitution," which vests in
the State ownership of all lands of the public domain, mineral lands
and other natural resources. Following this interpretation, petitioners
maintain that ancestral lands and ancestral domains are the property of
the State.

This proposition is untenable. Indeed, Section 2, Article XII reiterates


the declarations made in the 1935 and 1973 Constitutions on the state
policy of conservation and nationalization of lands of the public
domain and natural resources, and is of paramount importance to our
national economy and patrimony. A close perusal of the records of the
1986 Constitutional Commission reveals that the framers of the
Constitution inserted the phrase "subject to the provisions of this
Constitution" mainly to prevent the impairment of Torrens titles and
other prior rights in the determination of what constitutes ancestral
lands and ancestral domains, to wit:
MR. NATIVIDAD. Just one question. I want to clear this section
protecting ancestral lands. How does this affect the Torrens title and
other prior rights?
MR. BENNAGEN. I think that was also discussed in the committee
hearings and we did say that in cases where due process is clearly
established in terms of prior rights, these two have to be respected.
MR. NATIVIDAD. The other point is: How vast is this ancestral
land? Is it true that parts of Baguio City are considered as ancestral
lands?
MR. BENNAGEN. They could be regarded as such. If the
Commissioner still recalls, in one of the publications that I provided
the Commissioners, the parts could be considered as ancestral domain
in relation to the whole population of Cordillera but not in relation to
certain individuals or certain groups.
MR. NATIVIDAD. The Commissioner means that the whole Baguio
City is considered as ancestral land?

MR. BENNAGEN. Yes, in the sense that it belongs to Cordillera or in


the same manner that Filipinos can speak of the Philippine
archipelago as ancestral land, but not in terms of the right of a
particular person or particular group to exploit, utilize, or sell it.
MR. NATIVIDAD. But is clear that the prior rights will be respected.
MR. BENNAGEN. Definitely. 110
Thus, the phrase "subject to the provisions of this Constitution" was
intended by the framers of the Constitution as a reiteration of the
constitutional guarantee that no person shall be deprived of property
without due process of law.
There is another reason why Section 5 of Article XII mandating the
protection of rights of the indigenous peoples to their ancestral lands
cannot be construed as subject to Section 2 of the same Article
ascribing ownership of all public lands to the State. The Constitution
must be construed as a whole. It is a rule that when construction is
proper, the whole Constitution is examined in order to determine the
meaning of any provision. That construction should be used which
would give effect to the entire instrument.111
Thus, the provisions of the Constitution on State ownership of public
lands, mineral lands and other natural resources should be read
together with the other provisions thereof which firmly recognize the
rights of the indigenous peoples. These, as set forth
hereinbefore,112 include: Section 22, Article II, providing that the
State recognizes and promotes the rights of indigenous peoples within
the framework of national unity and development;Section 5, Article
XII, calling for the protection of the rights of indigenous cultural
communities to their ancestral lands to ensure their economic, social,
and cultural well-being, and for the applicability of customary laws
governing property rights and relations in determining the ownership
and extent of ancestral domains; Section 1, Article XIII, directing the

removal or reduction of social, economic, political and cultural


inequities and inequalities by equitably diffusing wealth and political
power for the common good; Section 6, Article XIII, directing the
application of the principles of agrarian reform or stewardship in the
disposition and utilization of other natural resources, subject to prior
rights, homestead rights of small settlers, and the rights of indigenous
communities to their ancestral lands; Section 17, Article XIV,
decreeing that the State shall recognize, respect, and protect the rights
of indigenous cultural communities to preserve and develop their
cultures, traditions, and institutions; andSection 12, Article XVI,
authorizing the Congress to create a consultative body to advise the
President on policies affecting indigenous cultural communities.
Again, as articulated in the Constitution, the first goal of the national
economy is the more equitable distribution of opportunities,
income, and wealth.113 Equity is given prominence as the first
objective of national economic development.114 The framers of the
Constitution did not, by the phrase "subject to the provisions of this
Constitution and national development policies and programs," intend
to establish a hierarchy of constitutional norms. As explained by then
Commissioner (now Chief Justice) Hilario G. Davide, Jr., it was not
their objective to make certain interests primary or paramount, or to
create absolute limitations or outright prohibitions; rather, the idea is
towards the balancing of interests:
BISHOP BACANI. In Commissioner Davides formulation of the first
sentence, he says: "The State, SUBJECT TO THE provisions of this
Constitution AND NATIONAL DEVELOPMENT POLICIES AND
PROGRAMS shall guarantee the rights of cultural or tribal
communities to their ancestral lands to insure their economic, social
and cultural well-being." There are at least two concepts here which
receive different weights very often. They are the concepts of national
development policies and programs, and the rights of cultural or tribal
communities to their ancestral lands, et cetera. I would like to ask:
When the Commissioner proposed this amendment, which was the

controlling concept? I ask this because sometimes the rights of


cultural minorities are precisely transgressed in the interest of national
development policies and programs. Hence, I would like to know
which is the controlling concept here. Is it the rights of indigenous
peoples to their ancestral lands or is it national development policies
and programs.
MR. DAVIDE. It is not really a question of which is primary or
which is more paramount. The concept introduced here is really
the balancing of interests. That is what we seek to attain. We have to
balance the interests taking into account the specific needs and the
specific interests also of these cultural communities in like manner
that we did so in the autonomous regions.115 (Emphasis supplied.)
B. The provisions of R.A. 8371 do not infringe upon the States
ownership over the natural resources within the ancestral domains.
Petitioners posit that IPRA deprives the State of its ownership over
mineral lands of the public domain and other natural resources,116 as
well as the States full control and supervision over the exploration,
development and utilization of natural resources.117 Specifically,
petitioners and the Solicitor General assail Sections 3 (a),118 5,119and
7120 of IPRA as violative of Section 2, Article XII of the Constitution
which states, in part, that "[a]ll lands of the public domain, waters,
minerals, coal, petroleum, and other mineral oils, all forces of
potential energy, fisheries, forests or timber, wildlife, flora and fauna,
and other natural resources are owned by the State."121 They would
have the Court declare as unconstitutional Section 3(a) of IPRA
because the inclusion of natural resources in the definition of ancestral
domains purportedly results in the abdication of State ownership over
these resources.
I am not convinced.

Section 3(a) merely defines the coverage of ancestral domains, and


describes the extent, limit and composition of ancestral domains by
setting forth the standards and guidelines in determining whether a
particular area is to be considered as part of and within the ancestral
domains. In other words, Section 3(a) serves only as a yardstick
which points out what properties are within the ancestral domains. It
does not confer or recognize any right of ownership over the natural
resources to the indigenous peoples. Its purpose is definitional and not
declarative of a right or title.
The specification of what areas belong to the ancestral domains is, to
our mind, important to ensure that no unnecessary encroachment on
private properties outside the ancestral domains will result during the
delineation process. The mere fact that Section 3(a) defines ancestral
domains to include the natural resources found therein does not ipso
facto convert the character of such natural resources as private
property of the indigenous peoples. Similarly, Section 5 in relation to
Section 3(a) cannot be construed as a source of ownership rights of
indigenous people over the natural resources simply because it
recognizes ancestral domains as their "private but community
property."
The phrase "private but community property" is merely descriptive of
the indigenous peoples concept of ownership as distinguished from
that provided in the Civil Code. In Civil Law, "ownership" is the
"independent and general power of a person over a thing for purposes
recognized by law and within the limits established thereby."122 The
civil law concept of ownership has the following attributes: jus
utendi or the right to receive from the thing that which it produces, jus
abutendi or the right to consume the thing by its use, jus disponendi or
the power to alienate, encumber, transform and even destroy that
which is owned and jus vidicandi or the right to exclude other persons
from the possession the thing owned.123 In contrast, the indigenous
peoples concept of ownership emphasizes the importance of
communal or group ownership. By virtue of the communal character

of ownership, the property held in common "cannot be sold, disposed


or destroyed"124 because it was meant to benefit the whole indigenous
community and not merely the individual member.125
That IPRA is not intended to bestow ownership over natural resources
to the indigenous peoples is also clear from the deliberations of the
bicameral conference committee on Section 7 which recites the rights
of indigenous peoples over their ancestral domains, to wit:
CHAIRMAN FLAVIER. Accepted. Section 8126 rights to ancestral
domain, this is where we transferred the other provision but here itself
HON. DOMINGUEZ. Mr. Chairman, if I maybe allowed to make a
very short Statement. Earlier, Mr. Chairman, we have decided to
remove the provisions on natural resources because we all agree
that that belongs to the State. Now, the plight or the rights of those
indigenous communities living in forest and areas where it could be
exploited by mining, by dams, so can we not also provide a provision
to give little protection or either rights for them to be consulted before
any mining areas should be done in their areas, any logging done in
their areas or any dam construction because this has been disturbing
our people especially in the Cordilleras. So, if there could be, if our
lawyers or the secretariat could just propose a provision for
incorporation here so that maybe the right to consultation and the
right to be compensated when there are damages within their ancestral
lands.
CHAIRMAN FLAVIER. Yes, very well taken but to the best of my
recollection both are already considered in subsequent sections which
we are now looking for.
HON. DOMINGUEZ. Thank you.

CHAIRMAN FLAVIER. First of all there is a line that gives priority


use for the indigenous people where they are. Number two, in terms
of the mines there is a need for prior consultation of source which is
here already. So, anyway it is on the record that you want to make
sure that the secretariat takes note of those two issues and my
assurance is that it is already there and I will make sure that they cross
check.
HON. ADAMAT. I second that, Mr. Chairman.
CHAIRMAN FLAVIER. Okay, thank you. So we now move to
Section 8, there is a Senate version you do not have and if you agree
we will adopt that.127 (Emphasis supplied.)
Further, Section 7 makes no mention of any right of ownership of the
indigenous peoples over the natural resources. In fact, Section 7(a)
merely recognizes the "right to claim ownership over lands, bodies of
water traditionally and actually occupied by indigenous peoples,
sacred places, traditional hunting and fishing grounds, and all
improvements made by them at any time within the domains." Neither
does Section 7(b), which enumerates certain rights of the indigenous
peoples over the natural resources found within their ancestral
domains, contain any recognition of ownership vis-a-vis the natural
resources.
What is evident is that the IPRA protects the indigenous peoples
rights and welfare in relation to the natural resources found within
their ancestral domains,128 including the preservation of the ecological
balance therein and the need to ensure that the indigenous peoples
will not be unduly displaced when State-approved activities involving
the natural resources located therein are undertaken.
Finally, the concept of native title to natural resources, unlike native
title to land, has not been recognized in the Philippines. NCIP and
Flavier, et al. invoke the case of Reavies v. Fianza129 in support of their

thesis that native title to natural resources has been upheld in this
jurisdiction.130 They insist that "it is possible for rights over natural
resources to vest on a private (as opposed to a public) holder if these
were held prior to the 1935 Constitution."131 However, a judicious
examination of Reavies reveals that, contrary to the position of NCIP
and Flavier, et al., the Court did not recognize native title to natural
resources. Rather, it merely upheld the right of the indigenous peoples
to claim ownership of minerals under the Philippine Bill of 1902.
While as previously discussed, native title to land or private
ownership by Filipinos of land by virtue of time immemorial
possession in the concept of an owner was acknowledged and
recognized as far back during the Spanish colonization of the
Philippines, there was no similar favorable treatment as regards
natural resources. The unique value of natural resources has been
acknowledged by the State and is the underlying reason for its
consistent assertion of ownership and control over said natural
resources from the Spanish regime up to the present.132 Natural
resources, especially minerals, were considered by Spain as an
abundant source of revenue to finance its battles in wars against other
nations. Hence, Spain, by asserting its ownership over minerals
wherever these may be found, whether in public or private lands,
recognized the separability of title over lands and that over minerals
which may be found therein. 133
On the other hand, the United States viewed natural resources as a
source of wealth for its nationals. As the owner of natural resources
over the Philippines after the latters cession from Spain, the United
States saw it fit to allow both Filipino and American citizens to
explore and exploit minerals in public lands, and to grant patents to
private mineral lands. A person who acquired ownership over a parcel
of private mineral land pursuant to the laws then prevailing could
exclude other persons, even the State, from exploiting minerals within
his property.134Although the United States made a distinction between
minerals found in public lands and those found in private lands, title

in these minerals was in all cases sourced from the State. The framers
of the 1935 Constitution found it necessary to maintain the States
ownership over natural resources to insure their conservation for
future generations of Filipinos, to prevent foreign control of the
country through economic domination; and to avoid situations
whereby the Philippines would become a source of international
conflicts, thereby posing danger to its internal security and
independence.135
The declaration of State ownership and control over minerals and
other natural resources in the 1935 Constitution was reiterated in both
the 1973136 and 1987 Constitutions.137
Having ruled that the natural resources which may be found within
the ancestral domains belong to the State, the Court deems it
necessary to clarify that the jurisdiction of the NCIP with respect to
ancestral domains under Section 52 [i] of IPRA extends only to
the lands and not to the natural resources therein.
Section 52[i] provides:
Turnover of Areas Within Ancestral Domains Managed by Other
Government Agencies. - The Chairperson of the NCIP shall certify
that the area covered is an ancestral domain. The secretaries of the
Department of Agrarian Reform, Department of Environment and
Natural Resources, Department of Interior and Local Government,
and Department of Justice, the Commissioner of the National
Development Corporation, and any other government agency
claiming jurisdiction over the area shall be notified thereof. Such
notification shall terminate any legal basis for the jurisdiction
previously claimed.
Undoubtedly, certain areas that are claimed as ancestral domains may
still be under the administration of other agencies of the Government,
such as the Department of Agrarian Reform, with respect to

agricultural lands, and the Department of Environment and Natural


Resources with respect to timber, forest and mineral lands. Upon the
certification of these areas as ancestral domain following the
procedure outlined in Sections 51 to 53 of the IPRA, jurisdiction of
the government agency or agencies concerned over lands forming
part thereof ceases. Nevertheless, the jurisdiction of government
agencies over the natural resources within the ancestral domains
does not terminate by such certification because said agencies are
mandated under existing laws to administer the natural resources for
the State, which is the owner thereof. To construe Section 52[i] as
divesting the State, through the government agencies concerned, of
jurisdiction over the natural resources within the ancestral domains
would be inconsistent with the established doctrine that all natural
resources are owned by the State.
C. The provisions of IPRA pertaining to the utilization of natural
resources are not unconstitutional.
The IPRA provides that indigenous peoples shall have the right to
manage and conserve the natural resources found on the ancestral
domains, to benefit from and share in the profits from the allocation
and utilization of these resources, and to negotiate the terms and
conditions for the exploration of such natural resources.138 The statute
also grants them priority rights in the harvesting, extraction,
development or exploitation of any natural resources within the
ancestral domains.139 Before the NCIP can issue a certification for the
renewal, or grant of any concession, license or lease, or for the
perfection of any production-sharing agreement the prior informed
written consent of the indigenous peoples concerned must be
obtained.140 In return, the indigenous peoples are given the
responsibility to maintain, develop, protect and conserve the ancestral
domains or portions thereof which are found to be necessary for
critical watersheds, mangroves, wildlife sanctuaries, wilderness,
protected areas, forest cover, or reforestation.141

The Solicitor General argues that these provisions deny the State an
active and dominant role in the utilization of our countrys natural
resources. Petitioners, on the other hand, allege that under the
Constitution the exploration, development and utilization of natural
resources may only be undertaken by the State, either directly or
indirectly through co-production, joint venture, or production-sharing
agreements.142 To petitioners, no other method is allowed by the
Constitution. They likewise submit that by vesting ownership of
ancestral lands and ancestral domains in the indigenous peoples,
IPRA necessarily gives them control over the use and enjoyment of
such natural resources, to the prejudice of the State.143

marine and fishing resources.148 Clearly, Section 2, Article XII, when


interpreted in view of the pro-Filipino, pro-poor philosophy of our
fundamental law, and in harmony with the other provisions of the
Constitution rather as a sequestered pronouncement,149 cannot be
construed as a prohibition against any and all forms of utilization of
natural resources without the States direct participation.

Section 2, Article XII of the Constitution provides in paragraph 1


thereof that the exploration, development and utilization of natural
resources must be under the full control and supervision of the State,
which may directly undertake such activities or enter into coproduction, joint venture, or production-sharing agreements. This
provision, however, should not be read in isolation to avoid a
mistaken interpretation that any and all forms of utilization of natural
resources other than the foregoing are prohibited. The Constitution
must be regarded as consistent with itself throughout.144 No
constitutional provision is to be separated from all the others, or to be
considered alone, all provisions bearing upon a particular subject are
to be brought into view and to be so interpreted as to effectuate the
great purposes of the fundamental law.145

The rights given to the indigenous peoples regarding the exploitation


of natural resources under Sections 7(b) and 57 of IPRA amplify what
has been granted to them under existing laws, such as the Small-Scale
Mining Act of 1991 (R.A. 7076) and the Philippine Mining Act of
1995 (R.A. 7942). R.A. 7076 expressly provides that should an
ancestral land be declared as a peoples small-scale mining area, the
members of the indigenous peoples living within said area shall be
given priority in the awarding of small-scale mining
contracts.152 R.A. 7942 declares that no ancestral land shall be
opened for mining operations without the prior consent of the
indigenous cultural community concerned153 and in the event that
the members of such indigenous cultural community give their
consent to mining operations within their ancestral land, royalties
shall be paid to them by the parties to the mining to the contract.154

In addition to the means of exploration, development and utilization


of the countrys natural resources stated in paragraph 1, Section 2 of
Article XII, the Constitution itself states in the third paragraph of the
same section that Congress may, by law, allow small-scale utilization
of natural resources by its citizens.146 Further, Section 6, Article XIII,
directs the State, in the disposition and utilization of natural
resources, to apply the principles of agrarian reform or
stewardship.147 Similarly, Section 7, Article XIII mandates the State to
protect the rights of subsistence fishermen to the preferential use of

Through the imposition of certain requirements and conditions for the


exploration, development and utilization of the natural resources
under existing laws,150 the State retains full control over such
activities, whether done on small-scale basis151 or otherwise.

In any case, a careful reading of Section 7(b) would reveal that the
rights given to the indigenous peoples are duly circumscribed. These
rights are limited only to the following: "to manage and
conserve natural resources within territories and uphold it for future
generations; to benefit and share the profits from allocation and
utilization of the natural resources found therein; to negotiate the
terms and conditions for the exploration of natural resources in the
areas for the purpose of ensuring ecological, environmental protection

and the conservation measures, pursuant to national and customary


laws; to an informed and intelligent participation in the
formulation and implementation of any project, government or
private, that will affect or impact upon the ancestral domains and to
receive just and fair compensation for any damages which they may
sustain as a result of the project, and the right to effective
measures by the government to prevent any interference with,
alienation and encroachment of these rights."
It must be noted that the right to negotiate terms and conditions
granted under Section 7(b) pertains only to theexploration of natural
resources. The term "exploration" refers only to the search or
prospecting of mineral resources, or any other means for the purpose
of determining the existence and the feasibility of mining them for
profit.155 The exploration, which is merely a preliminary activity,
cannot be equated with the entire process of "exploration,
development and utilization" of natural resources which under the
Constitution belong to the State.
Section 57, on the other hand, grants the indigenous peoples "priority
rights" in the utilization of natural resources and not absolute
ownership thereof. Priority rights does not mean exclusive rights.
What is granted is merely the right of preference or first consideration
in the award of privileges provided by existing laws and regulations,
with due regard to the needs and welfare of indigenous peoples living
in the area.
There is nothing in the assailed law which implies an automatic or
mechanical character in the grant of concessions. Nor does the law
negate the exercise of sound discretion by government entities.
Several factors still have to be considered. For example, the extent
and nature of utilization and the consequent impact on the
environment and on the indigenous peoples way of life are important
considerations. Moreover, the indigenous peoples must show that they

live in the area and that they are in the best position to undertake the
required utilization.
It must be emphasized that the grant of said priority rights to
indigenous peoples is not a blanket authority to disregard pertinent
laws and regulations. The utilization of said natural resources is
always subject to compliance by the indigenous peoples with existing
laws, such as R.A. 7076 and R.A. 7942 since it is not they but the
State, which owns these resources.
It also bears stressing that the grant of priority rights does not
preclude the State from undertaking activities, or entering into coproduction, joint venture or production-sharing agreements with
private entities, to utilize the natural resources which may be located
within the ancestral domains. There is no intention, as between the
State and the indigenous peoples, to create a hierarchy of values;
rather, the object is to balance the interests of the State for national
development and those of the indigenous peoples.
Neither does the grant of priority rights to the indigenous peoples
exclude non-indigenous peoples from undertaking the same activities
within the ancestral domains upon authority granted by the proper
governmental agency. To do so would unduly limit the ownership
rights of the State over the natural resources.
To be sure, the act of the State of giving preferential right to a
particular sector in the utilization of natural resources is nothing new.
As previously mentioned, Section 7, Article XIII of the Constitution
mandates the protection by the State of "the rights of subsistence
fishermen, especially of local communities, to the preferential use of
communal marine and fishing resources, both inland and offshore."
Section 57 further recognizes the possibility that the exploration and
exploitation of natural resources within the ancestral domains may
disrupt the natural environment as well as the traditional activities of

the indigenous peoples therein. Hence, the need for the prior informed
consent of the indigenous peoples before any search for or utilization
of the natural resources within their ancestral domains is undertaken.
In a situation where the State intends to directly or indirectly
undertake such activities, IPRA requires that the prior informed
consent of the indigenous peoples be obtained. The State must, as a
matter of policy and law, consult the indigenous peoples in
accordance with the intent of the framers of the Constitution that
national development policies and programs should involve a
systematic consultation to balance local needs as well as national
plans. As may be gathered from the discussion of the framers of the
Constitution on this point, the national plan presumably takes into
account the requirements of the region after thorough
consultation.156 To this end, IPRA grants to the indigenous peoples the
right to an informed and intelligent participation in the formulation
and implementation of any project, government or private, and the
right not to be removed therefrom without their free and prior
informed consent.157 As to non-members, the prior informed consent
takes the form of a formal and written agreement between the
indigenous peoples and non-members under the proviso in Section 57
in case the State enters into a co-production, joint venture, or
production-sharing agreement with Filipino citizens, or corporations.
This requirement is not peculiar to IPRA. Existing laws and
regulations such as the Philippine Environmental Policy,158 the
Environmental Impact System,159 the Local Government Code160 and
the Philippine Mining Act of 1995161already require increased
consultation and participation of stakeholders, such as indigenous
peoples, in the planning of activities with significant environment
impact.
The requirement in Section 59 that prior written informed consent of
the indigenous peoples must be procured before the NCIP can issue a
certification for the "issuance, renewal, or grant of any concession,
license or lease, or to the perfection of any production-sharing

agreement," must be interpreted, not as a grant of the power to control


the exploration, development and utilization of natural resources, but
merely the imposition of an additional requirement for such
concession or agreement. The clear intent of the law is to protect the
rights and interests of the indigenous peoples which may be adversely
affected by the operation of such entities or licensees.
Corollary Issues
A. IPRA does not violate the Due Process clause.
The first corollary issue raised by petitioners is whether IPRA violates
Section 1, Article III of the Constitution, which provides that "no
person shall be deprived of life, liberty, or property without due
process of law, nor shall any person be deprived the equal protection
of the laws."
Petitioners maintain that the broad definition of ancestral lands and
ancestral domains under Section 3(a) and 3(b) of IPRA includes
private lands. They argue that the inclusion of private lands in the
ancestral lands and ancestral domains violates the due process
clause.162 Petitioners contention is erroneous.
Sections 3(a) and 3(b) expressly provide that the definition of
ancestral lands and ancestral domains are "subject to Section 56,"
which reads:
Sec. 56. Existing Property Rights Regimes. Property rights within
the ancestral domains already existing and/or vested upon effectivity
of this Act, shall be recognized and protected.
Petitioners, however, contend that Section 56 aims to protect only the
vested rights of indigenous peoples, but not those who are not
members of such communities. Following their interpretation, IPRA,
under Section 56, recognizes the rights of indigenous peoples to their

ancestral lands and ancestral domains, subject to the vested rights of


the same communities to such ancestral lands and ancestral
domains. Such interpretation is obviously incorrect.
The "property rights" referred to in Section 56 belong to those
acquired by individuals, whether indigenous or non-indigenous
peoples. Said provision makes no distinction as to the ethnic origins
of the ownership of these "property rights." The IPRA thus recognizes
and respects "vested rights" regardless of whether they pertain to
indigenous or non-indigenous peoples. Where the law does not
distinguish, the courts should not distinguish.163What IPRA only
requires is that these "property rights" already exist and/or vested
upon its effectivity.
Further, by the enactment of IPRA, Congress did not purport to annul
any and all Torrens titles within areas claimed as ancestral lands or
ancestral domains. The statute imposes strict procedural requirements
for the proper delineation of ancestral lands and ancestral domains as
safeguards against the fraudulent deprivation of any landowner of his
land, whether or not he is member of an indigenous cultural
community. In all proceedings for delineation of ancestral lands and
ancestral domains, the Director of Lands shall appear to represent the
interest of the Republic of the Philippines.164 With regard to ancestral
domains, the following procedure is mandatory:first, petition by an
indigenous cultural community, or motu proprio by the NCIP; second,
investigation and census by the Ancestral domains Office ("ADO") of
the NCIP; third, preliminary report by the ADO; fourth, posting and
publication; and lastly, evaluation by the NCIP upon submission of
the final report of the ADO.165 With regard to ancestral lands, unless
such lands are within an ancestral domain, the statute imposes the
following procedural requirements: first, application; second, posting
and publication; third, investigation and inspection by the
ADO; fourth, delineation; lastly, evaluation by the NCIP upon
submission of a report by the ADO.166Hence, we cannot sustain the

arguments of the petitioners that the law affords no protection to those


who are not indigenous peoples.
Neither do the questioned sections of IPRA on the composition and
powers and jurisdiction of the NCIP167 and the application of
customary law,168 violate the due process clause of the Constitution.
Petitioners point out that IPRA provides that the NCIP shall be
composed exclusively of members of indigenous peoples,169 and that
the NCIP shall have jurisdiction over all claims and disputes
involving indigenous peoples,170including even disputes between a
member of such communities and one who is not a member, as well as
over disputes in the delineation of ancestral domains.171 Petitioners
clarify that they do not claim that the members of the NCIP are
incapable of being fair and impartial judges. They merely contend that
the NCIP will not appear to be impartial, because a party who is not a
member of an indigenous cultural community "who must defend his
case against [one who is] before judges who are all members of
[indigenous peoples] cannot but harbor a suspicion that they do not
have the cold neutrality of an impartial judge."172
In addition, petitioners claim that IPRA prescribes that customary
laws shall be applied first in disputes involving property, succession
and land,173 and that such laws shall likewise be used in disputes
involving indigenous peoples.174 They assert that "[w]hen the dispute
involves a member of an [indigenous cultural community and another
who is not], a resolution of such a dispute based on customary laws. . .
would clearly be a denial of due process. . . [because those who are
not indigenous peoples] do not know what these customary laws
are."175
Petitioners concerns are unfounded. The fact that the NCIP is
composed of members of the indigenous peoples does not mean that it
(the NCIP) is incapable, or will appear to be so incapable, of
delivering justice to the non-indigenous peoples. A persons

possession of the trait of impartiality desirable of a judge has nothing


to do with his or her ethnic roots. In this wise, the indigenous peoples
are as capable of rendering justice as the non-indigenous peoples for,
certainly, the latter have no monopoly of the concept of justice.
In any case, there are sufficient checks in the law against any abuse by
the NCIP of its quasi-judicial powers. Section 67 states that the
decision of the NCIP shall be appealable to the Court of Appeals by
petition for review. The regular remedies under our rules of procedure
are likewise available to any party aggrieved by the decision of the
NCIP.
Anent the use of customary laws in determining the ownership and
extent of ancestral domains, suffice it to say that such is allowed
under paragraph 2, Section 5 of Article XII of the Constitution. Said
provision states, "The Congress may provide for the applicability of
customary laws governing property rights and relations in determining
the ownership and extent of the ancestral domains." Notably, the use
of customary laws under IPRA is not absolute, for the law speaks
merely of primacy of use.176 The IPRA prescribes the application of
such customary laws where these present a workable solution
acceptable to the parties, who are members of the same indigenous
group. This interpretation is supported by Section 1, Rule IX of the
Implementing Rules which states:
RULE IX. JURISDICTION AND PROCEDURES FOR
ENFORCEMENT OF RIGHTS
Section 1. Primacy of Customary Law. All conflicts related to
ancestral domains and lands, involving ICCs/IPs, such as but not
limited to conflicting claims and boundary disputes, shall be resolved
by the concerned parties through the application of customary laws in
the area where the disputed ancestral domain or land is located.

All conflicts related to the ancestral domains or lands where one


of the parties is a non-ICC/IP or where the dispute could not be
resolved through customary law shall be heard and adjudicated in
accordance with the Rules on Pleadings, Practice and Procedures
Before the NCIP to be adopted hereafter. (Emphasis supplied.)
The application of customary law is limited to disputes concerning
property rights or relations in determining the ownership and
extent of the ancestral domains,177 where all the parties involved are
members of indigenous peoples,178 specifically, of the same indigenous
group. It therefore follows that when one of the parties to a dispute is
a non-member of an indigenous group, or when the indigenous
peoples involved belong to different groups, the application of
customary law is not required.
Like any other law, the objective of IPRA in prescribing the primacy
of customary law in disputes concerning ancestral lands and domains
where all parties involved are indigenous peoples is justice. The
utilization of customary laws is in line with the constitutional policy
of recognizing the application thereof through legislation passed by
Congress.
Furthermore, the recognition and use of customary law is not a novel
idea in this jurisdiction. Under the Civil Code, use of customary law is
sanctioned, as long as it is proved as a fact according to the rules of
evidence,179 and it is not contrary to law, public order or public
policy.180 Moreover, the Local Government Code of 1991 calls for the
recognition and application of customary laws to the resolution of
issues involving members of indigenous peoples. This law admits the
operation of customary laws in the settling of disputes if such are
ordinarily used in barangays where majority of the inhabitants are
members of indigenous peoples.181

B. Section 1, Part II, Rule VII of the Implementing Rules of IPRA does
not infringe upon the Presidents power of control over the Executive
Department.
The second corollary issue is whether the Implementing Rules of
IPRA violate Section 17, Article VII of the Constitution, which
provides that:
The President shall have control of all the executive departments,
bureaus, and offices. He shall ensure that the laws be faithfully
executed.
The assailed provision of the Implementing Rules provides:
Rule VII. The National Commission on Indigenous Peoples (NCIP)
xxx
Part II: NCIP as an Independent Agency Under the Office of the
President
Section 1. The NCIP is the primary agency of government for the
formulation and implementation of policies, plans and programs to
recognize, promote and protect the rights and well-being of
indigenous peoples. It shall be an independent agency under the
Office of the President. As such, the administrative relationship of
the NCIP to the Office of the President is characterized as a lateral
but autonomous relationship for purposes of policy and program
coordination. This relationship shall be carried out through a system
of periodic reporting. Matters of day-to-day administration or all those
pertaining to internal operations shall be left to the discretion of the
Chairperson of the Commission, as the Chief Executive Officer.
Petitioners asseverate that the aforecited rule infringes upon the power
of control of the President over the NCIP by characterizing the

relationship of the NCIP to the Office of the President as "lateral but


autonomous...for purposes of policy and program coordination."
Although both Section 40 of the IPRA and Section 1, Part II, Rule VII
of the Implementing Rules characterize the NCIP as an independent
agency under the Office of the President, such characterization does
not remove said body from the Presidents control and supervision.
The NCIP has been designated under IPRA as the primary
government agency responsible for the formulation and
implementation of policies, plans and programs to promote and
protect the rights and well being of the indigenous peoples and the
recognition of their ancestral domain as well as their rights
thereto.182 It has been granted administrative,183 quasi-legislative184 and
quasi-judicial powers185 to carry out its mandate. The diverse nature of
the NCIPs functions renders it impossible to place said agency
entirely under the control of only one branch of government and this,
apparently, is the reason for its characterization by Congress as an
independent agency. An "independent agency" is defined as an
administrative body independent of the executive branch or one not
subject to a superior head of department, as distinguished from a
"subordinate agency" or an administrative body whose action is
subject to administrative review or revision.186
That Congress did not intend to place the NCIP under the control of
the President in all instances is evident in the IPRA itself, which
provides that the decisions of the NCIP in the exercise of its quasijudicial functions shall be appealable to the Court of Appeals,187 like
those of the National Labor Relations Commission (NLRC) and the
Securities and Exchange Commission (SEC). Nevertheless, the NCIP,
although independent to a certain degree, was placed by Congress
"under the office of the President" and, as such, is still subject to the
Presidents power of control and supervision granted under Section
17, Article VII of the Constitution188 with respect to its performance of
administrative functions, such as the following: (1) the NCIP must

secure the Presidents approval in obtaining loans to finance its


projects;189 (2) it must obtain the Presidents approval for any
negotiation for funds and for the acceptance of gifts and/or properties
in whatever from and from whatever source;190 (3) the NCIP shall
submit annual reports of its operations and achievements to the
President, and advise the latter on all matters relating to the
indigenous peoples;191 and (4) it shall exercise such other powers as
may be directed by the President.192The President is also given the
power to appoint the Commissioners of the NCIP193 as well as to
remove them from office for cause motu proprio or upon the
recommendation of any indigenous community.194
To recapitulate:
(1) The provisions of the IPRA (specifically Sections 3,
paragraphs (a) and (b), 5, 6, 7, and 8) affirming the ownership
by the indigenous peoples of their ancestral lands and domains
by virtue of native title do not diminish the States ownership
of lands of the public domain, because said ancestral lands and
domains are considered as private land, and never to have been
part of the public domain, following the doctrine laid down
in Cario vs. Insular Government;195
(2) The constitutional provision vesting ownership over
minerals, mineral lands and other natural resources in the State
is not violated by Sections 3, 5, 7, 56, 57, 58 and 59 of the
IPRA which grant certain rights to the indigenous peoples over
the natural resources found within the ancestral domains, e.g.,
to benefit from and share in the profits from the allocation and
utilization of the same, as well as priority rights in the
harvesting, extraction, development or exploitation thereof.
The State retains full control over the exploration, development
and utilization of natural resources even with the grant of said
rights to the indigenous peoples, through the imposition of
requirements and conditions for the utilization of natural

resources under existing laws, such as the Small-Scale Mining


Act of 1991196and the Philippine Mining Act of
1995.197 Moreover, the rights granted to indigenous peoples for
the utilization of natural resources within their ancestral
domains merely amplify what has been earlier granted to them
under the aforesaid laws;
(3) While the IPRA recognizes the rights of indigenous peoples
with regard to their ancestral lands and domains, it also
protects the vested rights of persons, whether indigenous or
non-indigenous peoples, who may have acquired rights of
ownership lands or rights to explore and exploit natural
resources within the ancestral lands and domains;198
(4) The Due Process Clause of the Constitution is not violated
by the provisions (Sections 40, 51-54, 62, 63, 65 and 66) of the
IPRA which, among others, establish the composition of the
NCIP, and prescribe the application of customary law in certain
disputes involving indigenous peoples. The fact the NCIP is
composed wholly of indigenous peoples does not mean that it
is incapable of being impartial. Moreover, the use of customary
laws is sanctioned by paragraph 2, Section 5 of Article XII of
the Constitution; and
(5) The provision of the Implementing Rules characterizing the
NCIP as an independent agency under the Office of the
President does not infringe upon the Presidents power of
control under Section 17, Article VII of the Constitution, since
said provision as well as Section 40 of the IPRA expressly
places the NCIP under the Office of the President, and
therefore under the Presidents control and supervision with
respect to its administrative functions. However, insofar as the
decisions of the NCIP in the exercise of its quasi-judicial
powers are concerned, the same are reviewable by the Court of
Appeals, like those of the NLRC and the SEC.

In view of the foregoing, I vote to DISMISS the petition.

Footnotes
Teehankee vs. Rovira, 75 Phil. 634 (1945); San Miguel
Corporation vs. Avelino, 89 SCRA 69 (1979); Phil. Long
Distance Telephone Co. vs. Collector of Internal Revenue, 90
Phil 674 (1952).
1

In re Guarina, 24 Phil. 37 (1913).

In Philippine Colonial history, the term indio applied to


indigenous throughout the vast Spanish empire. India was a
synonym for all of Asia east of the Indus River. Even after it
became apparent that the explorer Christopher Columbus was
not able to reach territories lying off the east coast of Asia, the
Spanish persisted in referring to all natives within their empire
as los Indios. (Owen J. Lynch, Jr., THE PHILIPPINE
COLONIAL DICHOTOMY: Attraction and
Disenfranchisement, 63 PL J 112 [1988] citing R.
BERKHOFER, THE WHITE MANS INDIAN: IMAGES OF
THE AMERICAN INDIAN FROM COLUMBUS TO THE
PRESIDENT 5 [1979].
3

Benedict Kingsbury, "Indigenous Peoples" in International


Law: A Constructivist Approach to the Asian Controversy, 92
The American Journal of International Law 414, 419 (1998)
citing Jose Martinez Cobo, Study of the Problem of
Discrimination against indigenous population, UN Doc.
E/CN.4/Sub. 2/1986/ 7/ Add. 4, paras. 379-80.
5

Ibid. This definition is criticized for taking the potentially


limited, and controversial view of indigenous peoples by
requiring "historical continuity with pre-invasion and precolonial societies that developed on their territories."
6

4 Record of the Constitutional Commission 34.

Rubi v. Provincial Board of Mindoro, 39 Phil. 660, 680


(1919).
8

Hearing before the Committee on the Philippines, United


States Senate, Sixty-Third Congress, Third Session on HR
18459, pp. 346, 351. Quoted in Rubi at 686.
9

United States President McKinleys Instruction to the


Philippine Commission, April 7, 1900, quoted in Rubi at 680.
10

11

US v. Tubban, 29 Phil. 434, 436 (1915).

See Owen J. Lynch, Jr., Invisible Peoples And A Hidden


Agenda: The Origins of Contemporary Philippine Land Laws
(1900-1913), 63 PLJ 249 (1988).
12

Websters Third New International Dictionary (1976), p.


1151.
4

For an introduction to the chasm that exists between


Philippine Law and Indigenous Custom Law, see Owen J.
Lynch, Jr., Native Title, Private Right and Tribal Land Law: An
Introductory Survey 52 PLJ 268 (1982); and the Philippine
13

Indigenous Law Collection: An Introduction and Preliminary


Bibliography, 58 PLJ 457 (1983), by the same author.
See Renato Constantino, The Philippines: A Past Revisited
(1975), pp. 26-41; Teodoro Agoncillo, A History of the Filipino
People, 8th ed., pp. 5, 74-75.

a) The State shall recognize and promote the rights of


ICCs/IPs within the framework of national unity and
development;

14

Response of Rep. Gregorio A. Andolana to the interpellation


of Rep. John Henry R. Osmea on ouse Bill No. 9125, Journal
of August 20 and 21, 1997 of the House of Representatives,
p.20.
15

16

Philippines Yearbook (1998 ed.), p. 366.

Article II of the Constitution, entitled State Principles and


Policies.
17

Article XII of the Constitution, entitled National Economy


and Patrimony.
18

Article XIII of the Constitution, entitled Social Justice and


Human Rights.
19

20

Ibid.

Article XIV of the Constitution, entitled Education, Science,


Technology, Arts, Culture, and Sports.
21

22

Article XVI of the Constitution, entitled General Provisions.

SECTION 2. Declaration of State Policies . - The State shall


recognize and promote all the rights of Indigenous Cultural
Communities/Indigenous Peoples (ICCs/IPs) hereunder
enumerated within the framework of the Constitution:
23

b) The State shall protect the rights of ICCs/IPs to their


ancestral domains to ensure their economic, social and
cultural well being and shall recognize the applicability
of customary laws governing property rights or relations
in determining the ownership and extent of ancestral
domain;
c) The State shall recognize, respect and protect the
rights of ICCs/IPs to preserve and develop their
cultures, traditions and institutions. It shall consider
these rights in the formulation of national laws and
policies;
d) The State shall guarantee that members of the
ICCs/IPs regardless of sex, shall equally enjoy the full
measure of human rights and freedoms without
distinction or discrimination;
e) The State shall take measures, with the participation
of the ICCs/IPs concerned, to protect their rights and
guarantee respect for their cultural integrity, and to
ensure that members of the ICCs/IPs benefit on an equal
footing from the rights and opportunities which national
laws and regulations grant to other members of the
population; and
f) The State recognizes its obligations to respond to the
strong expression of the ICCs/IPs for cultural integrity
by assuring maximum ICC/IP participation in the
direction of education, health, as well as other services
of ICCs/IPs, in order to render such services more

responsive to the needs and desires of these


communities.
Towards these ends, the State shall institute and
establish the necessary mechanisms to enforce and
guarantee the realization of these rights, taking into
consideration their customs, traditions, values, beliefs,
interests and institutions, and to adopt and implement
measures to protect their rights to their ancestral
domains.
24

See Sections 13-20, R.A. 8371.

25

See Sections 21-37, R.A. 8371.

26

See Sections 4-12, R.A. 8371.

27

See Sections 38-50, R.A. 8371.

Association of Small Landowners v. Secretary of Agrarian


Reform, 175 SCRA 343, 364 (1989); Joya v. PCGG, 225
SCRA 568 (1993).
34

35

People v. Vera, 65 Phil. 56, 89 (1937).

36

Lozada v. COMELEC, 120 SCRA 337, 342 (1983).

US v. Richardson, 418 US 166, 194 S Ct 2940, 41 L Ed 2d


678 (1974).
37

Kilosbayan v. Guingona, 232 SCRA 110, 135 (1994), citing,


among others, Philconsa v. Gimenez, 15 SCRA 479 (1965);
CLU V. Executive Secretary, 194 SCRA 317 (1991); Guingona
v. Carague, 196 SCRA 221 (1991); Osmena v. COMELEC,
199 SCRA 750 (1991); Basco v. PAGCOR, 197 SCRA 52
(1991); Carpio v. Executive Secretary, 206 SCRA 290 (1992).
38

In Kilosbayan v. Morato (250 SCRA 130 [1995]) the


Court discoursed on the rule on standing as follows:
taxpayers may sue on the claim of illegal disbursement
of funds, or to assail the constitutionality of a tax
measure; voters may question the validity of election
laws; citizens may raise constitutional questions of
transcendental importance which must be settled early;
and, legislators may question the validity of official acts
which infringe their prerogatives.

Dumlao v. COMELEC, 95 SCRA 392, 400 (1980), citing


People vs. Vera, 65 Phil. 56 (1937).
28

Subic Bay Metropolitan Authority v. COMELEC, 262 SCRA


492, 513 (1996).
29

30

Board of Optometry v. Colet, 260 SCRA 88, 104 (1996).

31

Muskrat v. United States, 219 US 346, 362 (1913).


39

WEBSTERSS THIRD NEW INTERNATIONAL


DICTIONARY, 1976, p. 497.
32

33

United States v. Freuhauf, 365 US 146 (1961).

Araneta v. Dinglasan, 84 Phil. 368, 373 (1949).

Assn. of Small Landowners in the Philippines v. Secretary of


Agrarian Reform, 175 SCRA 343, 364-365 (1989).
40

16 Phil. 366 (1910), citing HIGH, EXTRAORDINARY


LEGAL REMEDIES.
41

42

Id., at 371.

43

Id., at 374-375.

44

45

46

54

Section 2, Rule 65, 1997 RULES OF CIVIL PROCEDURE.

55

Section 3, Rule 65, 1997 RULES OF CIVIL PROCEDURE.

56

Article VIII of the Constitution states:

136 SCRA 27, 37 (1985).


177 SCRA 374, 383 (1989).
224 SCRA 792 (1993).

47

Id., at 805.

48

Ibid.

49

Philconsa v. Mathay, 18 SCRA 300, 306 (1966).

Philconsa v. Gimenez, 15 SCRA 479, 487 (1965), citing 11


Am Jur 761.
50

Sanidad v. COMELEC, 73 SCRA 333, 358-359 (1976);


Pascual v. Secretary of Public Works, 110 Phil. 331 (1960); Tan
v. Macapagal, 43 SCRA 677, 680 (1972).
51

Section 79. Appropriations.- The amount necessary to


finance the initial implementation of this Act shall be charged
against the current year's appropriation of the ONCC and the
OSCC. Thereafter, such sums as may be necessary for its
continued implementation shall be included in the annual
General Appropriations Act.
52

Section 74. Merger of ONCC/OSCC.The Office for


Northern Cultural Communities (ONCC) and the Office for
Southern Cultural Communities (OSCC), created under
Executive Order Nos. 122-B and 122-C respectively, are
hereby merged as organic offices of the NCIP and shall
53

continue to function under a revitalized and strengthened


structure to achieve the objectives of the NCIP x x x.

Sec. 5. The Supreme Court shall have the following


powers:
(1) Exercise original jurisdiction over cases affecting
ambassadors, other public ministers and consuls, and
over petitions for certiorari, prohibition, mandamus, quo
warranto, and habeas corpus.
xxx
Batas Pambansa Blg. 129 (B.P. 129), as amended,
provides:
Sec. 9. Jurisdiction.-The Court of Appeals shall
exercise:
(1) Original jurisdiction to issue writs of mandamus,
prohibition, certiorari, habeas corpus, and quo warranto,
and auxiliary writs or processes, whether or not in aid of
its appellate jurisdiction;
x x x.
Sec. 21. Original jurisdiction in other cases.- Regional
Trial Courts shall exercise original jurisdiction:

(1) In the issuance of writs of certiorari, prohibition,


mandamus, quo warranto, habeas corpus and injunction
which may be enforced in any part of their respective
regions; and

Section 3(p) Time Immemorial - refers to a period of


time when as far back as memory can go, certain
ICCs/IPs are known to have occupied, possessed in the
concept of owners, and utilized a defined territory
devolved to them, by operation of customary law or
inherited from their ancestors, in accordance with their
customs and traditions.

(2) In actions affecting ambassadors and other public


ministers and consuls.
57

Tano vs. Socrates, 278 SCRA 154, 173-174 (1997).

58

172 SCRA 415 (1989).

59

Id., at 424.

Section 7. Rights to Ancestral Domains.The rights of


ownership and possession of ICCs/IPs to their ancestral
domains shall be recognized and protected. Such rights shall
include:
60

(a) Right of Ownership. The right to claim ownership


over lands, bodies of water traditionally and actually
occupied by ICCs/IPs, sacred places, traditional
(b) hunting and fishing grounds, and all improvements
made by them at any time within the domains;
xxx
Section 3(l) Native Title refers to pre-conquest rights to
lands and domains which, as far back as memory reaches, have
been held under a claim of private ownership by ICCs/IPs,
have never been public lands and are thus indisputably
presumed to have been held that way since before the Spanish
Conquest; x x x
61

Section 3(b) Ancestral Lands Subject to Section 56 hereof,


refers to land occupied, possessed and utilized by individuals,
families and clans who are members of the ICCs/IPs since time
immemorial, by themselves or through their predecessors-ininterest, under claims of individual or traditional group
ownership, continuously to the present except when interrupted
by war, force majeure or displacement by force, deceit, stealth,
or as a consequence of government projects or any other
voluntary dealings entered into by the government and private
individuals/corporations, including, but not limited to,
residential lots, rice terraces or paddies, private forests,
swidden farms and tree lots;
62

Section 3(a) Ancestral Domains Subject to Section 56


hereof, refer to all areas generally belonging to ICCs/IPs
comprising lands, inland waters, coastal areas and natural
resources therein, held under a claim of ownership, occupied or
possessed by Indigenous peoples, by themselves or through
their ancestors, communally or individually since time
immemorial, continuously to the present except when
interrupted by war, force majeure or displacement by force,
deceit, stealth or as a consequence of government projects or
any other voluntary dealings entered into by the government
and private individuals/corporations, and which are necessary
to ensure their economic, social and cultural welfare. It shall
include ancestral lands, forests, pasture, residential,
agricultural, and other lands individually owned whether
63

alienable and disposable or otherwise, hunting grounds, burial


grounds, worship areas, bodies of water, mineral and other
resources, and lands which may no longer be exclusively be
occupied by Indigenous peoples but from which they
traditionally had access to for their subsistence and traditional
activities, particularly the home ranges of ICCs/IPs who are
still nomadic and/or shifting cultivators.
64

Ibid.

Hebron v. Reyes, 104 Phil. 175 (1958); San Miguel


Corporation v. Avelino, 89 SCRA 69 (1979).
65

66

67

75

Cario vs. Insular Government, 7 Phil. 132 (1906). The


Philippine Supreme Court in this case held that in the
Philippines, there is no conclusive presumption of a grant of
title to land from the Government founded merely upon long
possession of the same by the applicant.
76

77

Cario vs. Insular Government, supra note 75, at 941.

78

Section 10, Philippine Bill of 1902.

79

75 Phil 890 (1946).

80

Id., at 892.

81

Memorandum of Petitioners, Rollo, p. 861.

82

Section 3, Article XII, Constitution.

In re Guarina, 24 Phil 37 (1913).


See Lee Hong Hok vs. David, 48 SCRA 372 (1972).

Pea, Registration of Land Titles and Deeds, 1994 rev. ed., p.


15.

41 Phil. 935, 212 U.S. 449, 53 L Ed. 594 (1909).

68

69

1 Bouviers Law Dictionary, 3rd revision, p. 1759.

70

Blacks Law Dictionary, 6th ed., p. 1282.

76 Corpus Juris Secundum, citing Hart v. Burnett, 15 Cal.


530, 566.
71

Under the Treaty of Tordesillas, the world was divided


between Spain and Portugal, with the former having exclusive
power to claim all lands and territories west of the Atlantic
Ocean demarcation line (Lynch, The Legal Bases of Philippine
Colonial Sovereignty, 62 Phil L J 279, 283 [1987]).
83

See AKEHURST, A MODERN INTRODUCTION TO


INTERNATIONAL LAW, 5th ed., 142-143.
84

Washburn, p. 44; see also Williams, Principles Of The Law


On Real Property, 6th ed. (1886), p.2; Bigelow, p. 2.
72

Warvelle, Abstracts and Examination of Title to Real


Property (1907), p.18.

85

See Cruz, International Law, 1996 ed., pp. 106-107.

86

Cario v. Insular Government, supra note 75, at 939.

73

74

1 Dictionary of English Law (Jowitt, ed.), p. 797.

This point finds significance in light of the distinction


between sovereignty and dominion. Sovereignty is the

right to exercise the functions of a State to the exclusion


of any other State (Case Concerning the Island of Las
Palmas [1928], UNRIAA II 829, 838). It is often
referred to as the power of imperium, which is defined
as the government authority possessed by the State
(Bernas, The Constitution of the Republic of the
Philippines: A Commentary Vol. 2, p. 419). On the other
hand, dominion, or dominium, is the capacity of the
State to own or acquire property such as lands and
natural resources.
Dominium was the basis for the early Spanish decrees
embracing the theory of jura regalia. The declaration in
Section 2, Article XII of the 1987 Constitution that all
lands of the public domain are owned by the State is
likewise founded on dominium (Ibid.). If dominium, not
imperium, is the basis of the theory of jura regalia, then
the lands which Spain acquired in the 16th century were
limited to non-private lands, because it could only
acquire lands which were not yet privately-owned or
occupied by the Filipinos. Hence, Spain acquired title
only over lands which were unoccupied and unclaimed,
i.e., public lands.
Phelan, The Hispanization of the Philippines: Spanish Aims
and Filipinos Responses, 1565-1700 (1959), pp. 8-9.

Book 4, Title 12, Law 14. We having acquired full


sovereignty over the Indies, and all lands, territories,
and possessions not heretofore ceded away by our royal
predecessors, or by us, or in our name, still pertaining
the royal crown and patrimony, it is our will that all
lands which are held without proper and true deeds of
grant be restored to us according as they belong to us, in
order that x x x after distributing to the natives what
may be necessary for tillage and pasteurage, confirming
them in what they now have and giving them more if
necessary, all the rest of said lands may remain free and
unencumbered for us to dispose of as we wish. [Quoted
in Valenton v. Murciano, 3 Phil. 537, 542-543 (1904).]
(Emphasis supplied.)
Book 6, Title 1, Law 15, decreed by King Philip II, at
Madrid, 7 November 1574. We command that in the
Philippine Islands the Indians not be removed from one
to another settlement by force and against their will.
Book 6, Title 1, Law 23, otherwise known as Ordinance
10 of 1609 decreed by Philip III. It is right that time
should be allowed the Indians to work their own
individual lands and those of the community.

87

88

Cario vs. Insular Government, supra note 75, at 943.

Book 4, Title 12, Law 9, decreed by Philip II, 1 June 1594.


We order that grants of farms and lands to Spaniards be
without injury to the Indians and that those which have been
granted to their loss and injury, be returned to the lawful
owners.

Book 6, Title 1, Law 32, decreed by Philip II, 16 April


1580. We command the Viceroys, Presidents, and
Audiencias that they see to it that the Indians have
complete liberty in their dispositions.

89

Royal Cedula of October 15, 1754. Where such


possessors shall not be able to produce title deeds it
shall be sufficient if they shall show that ancient
possession, as a valid title by prescription; x x x.

[Quoted in Valenton v. Murciano, supra, at 546.]


(Emphasis supplied.)

possession of property of all kinds, of provinces,


municipalities, public or private establishments,
ecclesiastical or civic bodies, or any other associations
having legal capacity to acquire and possess property in
the aforesaid territories renounced or ceded, or of
private individuals, of whatsoever nationality such
individuals may be.

Article 6 of the royal decree of June 25, 1880, quoted in


Valenton v. Murciano, supra note 89 at 549.
90

91

Cario v. Insular Government, supra note 75, at 944.

92

Memorandum of Petitioners, par. 3.4, Rollo, pp. 845-846.

93

The Treaty of Paris reads in part:

94

Section 12. That all the property and rights which may
have been acquired in the Philippine Islands under the
treaty of peace with Spain, signed December tenth,
eighteen hundred and ninety-eight, except such land or
other property as shall be designated by the President of
the United States for military and other reservations of
the Government of the United States, are hereby placed
under the control of the Government of said Islands, to
be administered for the benefit of the inhabitants
thereof, except as provided by this Act.

Article III. Spain cedes to the United States the


archipelago known as the Philippine Islands, x x x.
The United States will pay to Spain the sum of twenty
million dollars, within three months after the exchange
of the ratifications of the present treaty.
xxx
Article VIII. In conformity with the provisions of
Articles One, Two, and Three of this treaty, Spain
relinquishes in Cuba, and cedes in Porto Rico and other
islands of the West Indies, in the Island of Guam, and in
the Philippine Archipelago, all the buildings, wharves,
barracks, forts, structures, public highways, and other
immovable property which, in conformity with law,
belong to the public domain and as such belong to the
Crown of Spain.
And it is hereby declared that the relinquishment or
cession, as the case may be, to which the preceding
paragraph refers, can not in any respect impair the
property or rights which by law belong to the peaceful

The statute reads in part:

McKinleys Instructions to the Second Philippine


Commission, in Mendoza, From McKinleys Instructions to the
New Constitution: Documents on the Philippine Constitutional
System (1978) p. 71.
95

96

Id., at 65-75; Section 5, Philippine Bill of 1902.

97

Solicitor Generals Memorandum, Rollo, p. 668-669.

98

Id, at 668.

99

Section 1, Article XII, 1935 Constitution reads:

All agricultural, timber, and mineral lands of the public


domain, waters, minerals, coal, petroleum, and other
mineral oils, all forces of potential energy, and other
natural resources of the Philippines belong to the State,
and their disposition, exploitation, development, or
utilization shall be limited to citizens of the Philippines,
or to corporations or associations at least sixty per
centum of the capital of which is owned by such
citizens, subject to any existing right, grant, lease, or
concession at the time of the inauguration of the
Government established under this Constitution. Natural
resources, with the exception of public agricultural land,
shall not be alienated, and no license, concession, or
lease for the exploitation, development, or utilization of
any of the natural resources shall be granted for a period
exceeding twenty-five years, renewable for another
twenty five years, except as to water rights for
irrigation, water supply, fisheries or industrial uses other
than the development of water power, in which cases
beneficial use may be the measure and limit of the grant.
Central Azucarera Don Pedro v. Central Bank, 104 Phil 598
(1954).
100

Sec. 5, Article XII. The State, subject to the provisions of


this Constitution and national development policies and
programs, shall protect the rights of indigenous cultural
communities to their ancestral lands to ensure their economic,
social, and cultural well-being.
101

The Congress may provide for the applicability of


customary laws governing property rights and relations
in determining the ownership and extent of ancestral
domains.

102

See Memorandum of Petitioners, Rollo, pp. 863-864.

103

Sibal, Philippine Legal Encyclopedia, p. 893.

104

Black's Law Dictionary, 5th ed., p. 1189.

105

Ibid.

106

4 Record of the Constitutional Commission 32.

107

Id., at 37.

108

Solicitor Generals Memorandum, Rollo, p. 665.

Torres v. Tan Chim, 69 Phil 518 (1940); CIR v.Guerrero, 21


SCRA 180 (1967).
109

110

4 Record of the Constitutional Commission 36.

See 1 COOLEY, CONST., LIMITATIONS, 8th ed., pp. 127129.


111

See pp. 8-9 of this Opinion for the full text of the
constitutional provisions mentioned.
112

113

Section 1, Article XII provides:


The goals of the national economy are a more
equitable distribution of opportunities, income, and
wealth; a sustained increase in the amount of goods and
services produced by the nation for the benefit of the
people; and an expanding productivity as the key to
raising the quality of life for all, especially the
underprivileged.

The State shall promote industrialization and full


employment based on sound agricultural development
and agrarian reform, through industries that make full
and efficient use of human and natural resources, and
which are competitive in both domestic and foreign
markets. However, the State shall protect Filipino
enterprises against unfair foreign competition and trade
practices.

themselves or through their ancestors, communally or


individually since time immemorial, continuously to the
present except when interrupted by war, force majeure
or displacement by force, deceit, stealth or as a
consequence of government projects or any other
voluntary dealings entered into by government and
private individuals/corporations, and which are
necessary to ensure their economic, social and cultural
welfare. It shall include ancestral lands, forests, pasture,
residential, agricultural, and other lands, individually
owned whether alienable and disposable or otherwise,
hunting grounds, burial grounds, worship areas, bodies
of water, mineral and other natural resources, and lands
which may no longer be exclusively occupied by
ICCs/IPs but from which they traditionally had access to
for their subsistence and traditional activities,
particularly the home ranges of ICCs/IPs who are still
nomadic and/or shifting cultivators.

In the pursuit of these goals, all sectors of the economy


and all regions of the country shall be given optimum
opportunity to develop. Private enterprises, including
corporations, cooperatives and similar collective
organizations, shall be encouraged to broaden the base
of their ownership. (Emphasis supplied.)
Bernas, The Intent of the 1986 Constitution Writers, p. 800,
citing the sponsorship speech of Dr. Bernardo Villegas,
Chairman of the Committee on National Economy and
Patrimony.
114

115

4 Record of the Constitutional Commission 34.

116

Petition, Rollo, pp.18-19.

117

Id., at 20.

Section 3. Definition of Terms. -For Purposes of this Act, the


following terms shall mean:
118

a) Ancestral Domains. -Subject to Section 56 hereof,


refer to all areas generally belonging to ICCs/IPs
comprising lands, inland waters, coastal areas, and
natural resources therein, held under a claim of
ownership, occupied or possessed by ICCs/IPs, by

Section 5. Indigenous Concept of Ownership- Indigenous


concept of ownership sustains the view that ancestral domains
and all resources found therein shall serve as the material bases
of their cultural integrity. The indigenous concept of ownership
generally holds that ancestral domains are the ICCs/IPs private
but community property which belongs to all generations and
therefore cannot be sold, disposed or destroyed. It likewise
covers sustainable traditional resource rights.
119

Section 7. Rights to Ancestral Domains.The rights of


ownership and possession of ICCs/IPs to their ancestral
domains shall be recognized and protected. Such rights shall
include:
120

(a) Right of Ownership. The right to claim


ownership over lands, bodies of water traditionally and

actually occupied by ICCs/IPs, sacred places, traditional


hunting and fishing grounds, and all improvements
made by them at any time within the domains;
(b) Right to Develop Lands and Natural Resources.
Subject to Section 56 hereof, right to develop, control
and use lands and territories traditionally occupied,
owned, or used; to manage and conserve natural
resources within the territories and uphold the
responsibilities for future generations; to benefit and
share the profits from allocation and utilization of the
natural resources found therein; the right to negotiate
the terms and conditions for the exploration of natural
resources in the areas for the purpose of ensuring
ecological, environmental protection and the
conservation measures, pursuant to national and
customary laws; the right to an informed and intelligent
participation in the formulation and implementation of
any project, government or private, that will affect or
impact upon the ancestral domains and to receive just
and fair compensation for any damages which they may
sustain as a result of the project; and the right to
effective measures by the government to prevent any
interference with, alienation and encroachment upon
these rights; x x x (Emphasis supplied.)
121

Section 2, Article XII, Constitution.

Tolentino, Commentaries and Jurisprudence on the Civil


Code of the Philippines, Vol. II, p. 42 (1983); see also Articles
427 and 428, Civil Code.
122

123

Id., at 43.

124

Section 5, R.A. 8371.

125

Ibid.

Should be Section 7. The Transcript of Session Proceedings


of the deliberations of the Bicameral Conference Committee on
National Cultural Communities regarding House Bill No. 9125
refers to Section 8 but the Committee was actually discussing
Section 7 on Rights to Ancestral Domains.
126

Transcript of Session Proceedings, Bicameral Conference


Committee on National Cultural Communities, October 9,
1997, XIV-2.
127

128

Sections 7 (b) and Section 57, R.A. 8371.

129

40 Phil. 1017 (1909), 215 US 16, 54 L Ed 72.

Ibid. The facts of the case were discussed in Fianza vs.


Reavies, (7 Phil. 610 [1909]) thus: Jose Fianza, et al., members
of the Igorot tribe, claimed that he and his predecessors had,
for more than fifty years prior to 1901, possessed a certain
parcel of mineral land on which were found two gold mines.
The same parcel of land was also claimed by an American, J.F.
Reavies, who entered the land in 1901 and proceeded to locate
mining claims according to the mining laws of the United
States. The Philippine Supreme Court held that Fianza, et al.
were the rightful owners of the mineral lands pursuant to
Section 45 of the Philippine Bill of 1902 which in sum states
that where a person have held or worked on their mining
claims for a period equivalent to ten years, evidence of such
possession and working of the claims for such period shall be
sufficient to establish a right to a patent thereto. On appeal, the
United States Supreme Court affirmed the decision of the
Philippine Supreme Court and held that the indigenous peoples
were the rightful owners of the contested parcel of land, stating
that the possession and working by Fianza, et al. of the mining
130

claim in the Philippine Islands for the time required under the
Section 45 of the Philippine Bill of 1902 to establish the right
to a patent, need not have been under a claim of title.
131

Memorandum of Intervenors Flavier, et al., Rollo, p. 918.

Article I of the Decree of Superior Civil Government of


January 29, 1864 provided that "The supreme ownership of
mines throughout the kingdom belong to the crown and the
king. They shall not be exploited except by persons who
obtained special grant from this superior government and by
those who may secure it thereafter, subject to this regulation."
(FRANCISCO, PHILIPPINE LAWS ON NATURAL
RESOURCES, 2nd ed. [1956], p. 14, citing the unpublished
case of Lawrence v. Garduno, G.R. No. 19042.)

2. That belonging exclusively to the State which,


without being of general public use, is employed in
some public service, or in the development of the
national wealth, such as walls, fortresses, and other
works for the defense of the territory, and mines, until
granted to private individuals.

132

Article 2 of the Royal Decree of May 14, 1867 (the


Spanish Mining Law), the law in force at the time of the
cession of the Philippines to the United States contained
a similar declaration, thus:
The ownership of the substances enumerated in the
preceding article (among them those of inflammable
nature) belongs to the state, and they cannot be disposed
of without an authorization issued by the Superior Civil
Governor.
The Spanish Civil Code contained the following
analogous provisions affirming the States ownership
over minerals:
Art. 339. Property of public dominium isxxx

Art. 350. The proprietor of land is the owner of the


surface and of everything under it and may build, plant
or excavate thereon, as he may see fit, subject to any
existing easements and to the provisions of the Laws on
Mines and Waters and to police regulations.
After the Philippines was ceded to Spain, the Americans
continued to adhere to the concept of State-ownership of
natural resources. However, the open and free
exploration, occupation and purchase of mineral
deposits and the land where they may be found were
allowed under the Philippine Bill of 1902. Section 21
thereof stated:
Sec. 21. That all valuable mineral deposits in public
lands in the Philippine Islands, both surveyed and
unsurveyed, are hereby declared to be free and open to
exploration, occupation and purchase, and the land in
which they are found, to occupation and purchase, by
citizens of the United States, or of said
Islands: Provided, That when on any lands in said
Islands entered and occupied as agricultural lands under
the provisions of this Act, but not patented, mineral
deposits have been found, the working of such mineral
deposits is hereby forbidden until the person,
association, or corporation who or which has entered
and is occupying such lands shall have paid to the
Government of said Islands such additional sum or sums

as will make the total amount paid for the mineral claim
or claims in which said deposits are located equal to the
amount charged by the Government for the same as
mineral claims.
Other natural resources such as water and forests were
similarly regarded as belonging to the State during both
the Spanish and American rule in the Philippines, viz:
Article 33 of the Law of Waters of August 3, 1866
defined waters of public ownership as (1) the waters
springing continuously or intermittently from lands of
the public domain; (2) the waters of rivers; and (3) the
continuous or intermittent waters of springs and creeks
running through their natural channels.
Article 1 of the same law states:
The following are also part of the national domain open
to public use:
1. The coasts or maritime frontiers of the
Philippine territory with their coves, inlets,
creeks, roadsteads, bays and ports
2. The coast of the sea, that is, the maritime zone
encircling the coasts, to the full width recognized
by international law. The state provides for and
regulates the police supervision and the uses of
this zone as well as the right of refuge and
immunity therein, in accordance with law and
international treaties.
With respect to forests, there are references made
regarding State-ownership of forest lands in Supreme

Court decisions (See Director of Forestry vs. Munoz, 23


SCRA 1183, 1198-1199 [1968]; Director of Lands vs.
Abanzado, 65 SCRA 5, 11 [1975]; Mapa vs. Insular
Government, 10 Phil. 175, 184 [1908]; Montano vs.
Insular Government, 12 Phil 572, 584 [1909]).
The States ownership over natural resources was
embodied in the 1935, 1973 and 1987 Constitutions.
Section 1, Article XII of the 1935 Constitution declared:
All agricultural, timber and mineral lands of the public
domain, waters, minerals, coal, petroleum and other
mineral oils, all forces of potential energy, and other
natural resources of the Philippines belong to the State,
and their disposition, exploitation, development, or
utilization shall be limited to citizens of the Philippines,
or to corporations or associations at least sixty per
centum of the capital of which is owned by such
citizens, subject to any existing right, grant, lease or
concession at the time of the inauguration of the
Government established under this Constitution. Natural
resources, with the exception of public agricultural land,
shall not be alienated, and no license, concession, or
lease for the exploitation, or utilization of any of the
natural resources shall be granted for a period exceeding
twenty-five years, renewable for another twenty -five
years, except as to water rights for irrigation, water
supply, fisheries, or industrial uses other than the
development of water power, in which cases beneficial
use may be the measure and the limit of the grant.
Section 8, Article XIV of the 1973 Constitution
provided:

All lands of the public domain, waters, minerals, coal,


petroleum and other mineral oils, all forces of potential
energy, fisheries, wildlife, and other natural resources of
the Philippines belong to the State. With the exception
of agricultural, industrial or commercial, residential, and
resettlement lands of the public domain, natural
resources shall not be alienated, and no license,
concession, or lease for the exploration, development,
exploitation, or utilization of any of the natural
resources shall be granted for a period exceeding
twenty-five years, renewable for not more than twentyfive years, except as to water rights for irrigation water
supply, fisheries, or industrial uses other than the
development of water power, in which cases, beneficial
use may be the measure and limit of the grant.
Noblejas, Philippine Law on Natural Resources 1961
Revised Ed., p. 6
133

See Laurel (ed.), Proceedings of the Philippine


Constitutional Convention, Vol. VI, pp. 494-495.

All lands of the public domain, waters, minerals, coal,


petroleum, and other minerals oils, all forces of
potential energy, fisheries, forests or timber, wildlife,
flora and fauna, and other natural resources are owned
by the State. with the exception of agricultural lands, all
other natural resources shall not be alienated. The
exploration, development, and utilization of natural
resources shall be under the full control and supervision
of the State. The State may directly undertake such
activities, or it may enter into co-production, joint
venture, or production-sharing agreements with Filipino
citizens, or corporations and associations at least sixty
per centum of whose capital is owned by such citizens.
Such agreements may be for a period not exceeding
twenty-five years, renewable for not more than twentyfive years, and under such rights for irrigation, water
supply, fisheries, or industrial uses other than the
development of water power, beneficial use may be the
measure and limit of the grant.

134

Explanatory Note of the Committee on Nationalization of


Lands and Natural Resources, September 14, 1934, reproduced
in Laurel (ed.), Proceedings of the Philippine Constitutional
Convention, Vol. VII, pp. 464-468; see also De Leon and De
Leon, Jr., Philippine Constitutional Law: Principles and Cases,
Vol. 2, pp. 801-802.
135

Section 8, Article XIV, see note 139 for the full text of the
provision.
136

Paragraph 1, Section 2, Article XII of the 1987 Constitution


provides:
137

Section 7. Rights to Ancestral Domains.The rights


of ownership and possession of ICCs/IPs to their
ancestral domains shall be recognized and protected.
Such rights shall include:
138

xxx
b) Right to Develop Lands and Natural Resources.Subject to Section 56 hereof, right to develop, control
and use lands and territories traditionally occupied,
owned, or used; to manage and conserve natural
resources within the territories and uphold the
responsibilities for future generations; to benefit and
share the profits from allocation and utilization of
the natural resources found therein; the right to

negotiate the terms and conditions for the


exploration of natural resources in the areas for the
purpose of ensuring ecological, environmental
protection and the conservation measures, pursuant to
national and customary laws; the right to an informed
and intelligent participation in the formulation and
implementation of any project, government or private,
that will affect or impact upon the ancestral domains
and to receive just and fair compensation for any
damages which they may sustain as a result of the
project; and the right to effective measures by the
government to prevent any interference with, alienation
and encroachment upon these rights;

certification shall only be issued after a field-based


investigation is conducted by the Ancestral Domains Office of
the area concerned: Provided, That no certification shall be
issued by the NCIP without the free and prior informed
and written consent of Indigenous peoples
concerned: Provided, further, That no department, government
agency or government-owned or controlled corporation may
issue new concession, license, lease, or production sharing
agreement while there is a pending application for a CADT:
Provided, finally, That the ICCs/IPs shall have the right to stop
or suspend, in accordance with this Act, any project that has
not satisfied the requirement of this consultation process.
Section 58. Environmental Considerations.- Ancestral
domains or portions thereof, which are found to be necessary
for critical watersheds, mangroves, wildlife sanctuaries,
wilderness, protected areas, forest cover, or reforestation as
determined by appropriate agencies with the full participation
of the Indigenous peoples concerned shall be maintained,
managed and developed for such purposes. The Indigenous
peoples concerned shall be given the responsibility to
maintain, develop, protect and conserve such areas with the
full and effective assistance of government agencies. Should
the Indigenous peoples decide to transfer the responsibility
over the areas, said decision must be made in writing. The
consent of the Indigenous peoples should be arrived at in
accordance with its customary laws without prejudice to the
basic requirements of existing laws on free and prior informed
consent: Provided, That the transfer shall be temporary and
will ultimately revert to the Indigenous peoples in accordance
with the program for technology transfer; Provided, further,
That no Indigenous peoples shall be displaced or relocated for
the purpose enumerated under this section without the written
consent of the specific persons authorized to give consent.
141

Section 57. Natural Resources within Ancestral Domains.The ICCs/IPs shall have priority rights in the harvesting,
extraction, development or exploitation of any natural
resources within the ancestral domains. A non-member of the
ICCs/IPs concerned may be allowed to take part in the
development and utilization of the natural resources for a
period of not exceeding twenty-five (25) years renewable for
not more than twenty-five (25) years: Provided, That a formal
and written agreement is entered into with the ICCs/IPs
concerned or that the community, pursuant to its own decision
making process, has agreed to allow such operation: Provided,
finally, That the NCIP may exercise visitorial powers and take
appropriate action to safeguard the rights of the ICCs/IPs under
the same contract.
139

Section 59. Certification Precondition - All departments and


other governmental agencies shall henceforth be strictly
enjoined from issuing, renewing, or granting any concession,
license or lease, or entering into any production-sharing
agreement, without prior certification from the NCIP that the
area affected does not overlap with any ancestral domain. Such
140

142

Citing Section 2, Article XII of the Constitution.

143

Memorandum of Petitioners, Id., at 840-841.

The State shall protect the rights of subsistence


fishermen, especially of local communities, to the
preferential use of the communal marine and fishing
resources, both inland and offshore. It shall provide
support to such fishermen through appropriate
technology and research, adequate financial, production,
and marketing assistance, and other services. The State
shall also protect, develop, and conserve such resources.
The protection shall extend to offshore fishing grounds
of subsistence fishermen against foreign intrusion.
Fishworkers shall receive a just share from their labor in
the utilization of marine and fishing resources.

State v. Lathrop, 93 Ohio St 79, 112 NE 209, cited in 16 Am


Jur 2d, Constitutional Law, 100.
144

Old Wayne Mutual Life Assn. v. McDonough, 204 US 8, 51


L Ed 345, cited in 16 Am Jur 2d Constitutional Law, 100.
145

146

Third paragraph, Section 2, Article XII, Constitution


The Congress may, by law, allow small scale-utilization
of natural resources by Filipino citizens, as well as
cooperative fish farming, with priority to subsistence
fishermen and fishworkers in rivers, lakes, bays, and
lagoons.

147

Section 6, Article XIII, Constitution


The State shall apply the principles of agrarian reform
or stewardship, whenever applicable in accordance with
law, in the disposition and utilization of other natural
resources, including lands of the public domain under
lease or concession suitable to agriculture, subject to
prior rights, homestead rights of small settlers, and the
rights of the indigenous communities to their ancestral
lands.
The State may resettle landless farmers and
farmworkers in its own agricultural estates which shall
be distributed to them in the manner provided by law.

148

Section 7, Article XIII, Constitution

Bower v. Big Horn Canal Assn. (Wyo) 307 P2d 593, cited in
16 Am Jur 2d Constitutional Law, 100.
149

Republic Act No. 7076 (the Small-Scale Mining Act of


1991), Republic Act No. 7942 (the Philippine Mining Act of
1995).
150

Section 3(b) of R.A. 7076 defines "small-scale mining" as


referring to mining activities which rely heavily on manual
labor using simple implements and methods and do not use
explosives or heavy mining equipment.
151

152

Section 7, R.A. 7076 provides:


Ancestral lands. - No ancestral land may be declared as
a peoples small-scale mining area without the prior
consent of the cultural communities
concerned: Provided, That, if ancestral lands are
declared as peoles small-scale mining areas, the
members of the cultural communities therein shall be
given priority for the awarding of a peoples small-scale
mining contract.

153

Section 16, R.A. 7492.

154

Section 17, R.A. 7942.

Sec. 3(q), Chapter 1, Republic Act No. 7942 (the Philippine


Mining Act of 1995).
155

156

4 Record of the Constitutional Commission 37.

157

Sections 7(a) and (b), R.A. 8371.

158

Presidential Decree No. 1151 (1971).

Presidential Decree No. 1586 (1978) and DENR


Administrative Order No. 37 (1996).
159

160

Republic Act No. 7160 (1991).

161

Republic Act No. 7942.

162

Petition, Rollo, pp. 23-25.

163

Ramirez v. CA, 248 SCRA 590, 596 (1995).

164

Section 53 (f), R.A. 8371.

165

Section 52, R.A. 8371.

166

Section 53, R.A. 8371.

167

Sections 40, 51, 52, 53, 54, 62 and 66, R.A. No. 8371.

168

Sections 63 and 65, R.A. No. 8371.

Section 40. Composition.- The NCIP shall be an independent


agency under the Office of the President and shall be
169

composed of seven (7) Commissioners belonging to the


ICCs/IPs, one (1) of whom shall be the Chairperson. The
Commissioners shall be appointed by the President of the
Philippines from a list of recommendees submitted by
authentic ICCs/IPs: Provided, That the seven (7)
Commissioners shall be appointed specifically from each of the
following ethnographic areas, Region I and the Cordilleras;
Region II, the rest of Luzon; Island Groups including Mindoro,
Palawan, Romblon, Panay and the rest of the Visayas; Northern
and Western Mindanao; Southern and Eastern Mindanao; and
Central Mindanao: Provided, That at least two (2) of the seven
(7) Commissioners shall be women.
Section 66. Jurisdiction of the NCIP.- The NCIP, through its
regional offices, shall have jurisdiction over all claims and
disputes involving rights of ICCs/IPs. Provided, however, That
no such dispute shall be brought to the NCIP unless the parties
have exhausted all remedies provided under their customary
laws. For this purpose, a certification shall be issued by the
Council of Elders/Leaders who participated in the attempt to
settle the dispute that the same has not been resolved, which
certification shall be a condition precedent to the filing of a
petition with the NCIP.
170

Section 62. Resolution of Conflicts.- In cases of conflicting


interest, where there are adverse claims within the ancestral
domains as delineated in the survey plan, and which can not be
resolved, the NCIP shall hear and decide, after notice to the
proper parties, the disputes arising from the delineation of such
ancestral domains: Provided, That if the dispute is between
and/or among ICCs/IPs regarding the traditional boundaries of
their respective ancestral domains, customary process shall be
followed. The NCIP shall promulgate the necessary rules and
regulations to carry out its adjudicatory functions: Provided,
further, That any decision, order, award or ruling of the NCIP
171

on any ancestral domain dispute or on any matter pertaining to


the application, implementation, enforcement and
interpretation of this Act may be brought for Petition for
Review to the Court of Appeals within fifteen (15) days from
receipt of a copy thereof.
172

177

See Secs. 62 and 63, R.A. 8371.

178

Sec. 65, R.A. 8371.

179

The Civil Code provides:


Article 12. A custom must be proved as a fact, according
to the rules of evidence.

Memorandum of Petitioners, Rollo ,pp. 873-874.

Section 3 (f). Customary Laws - refer to a body of written


and/or unwritten rules, usages, customs and practices
traditionally and continually recognized, accepted and
observed by respective ICCs/IPs;
173

xxx

180

Article 11. Customs which are contrary to law, public


order or public policy shall not be countenanced.180
181

Sec. 63. Applicable Laws. - Customary laws, traditions


and practices of the ICCs/IPs of the land where the
conflict arises shall be applied first with respect to
property rights, claims and ownerships, hereditary
succession and settlement of land disputes. Any doubt or
ambiguity in the application and interpretation of laws
shall be resolved in favor of the ICCs/IPs.

R.A. No. 7160 reads:


Sec. 399. Lupong Tagapamayapa.
xxx
(f) In barangays where majority of the inhabitants are
members of indigenous peoples, local systems of
settling disputes of indigenous peoples, local systems of
settling disputes through their councils of datus or elders
shall be recognized without prejudice to the applicable
provisions of this Code.

Sec. 65. Primacy of Customary Laws and Practices. - When


disputes involve ICCs/IPs, customary laws and practices shall
be used to resolve the dispute.
174

175

Memorandum of Petitioners, Rollo, pp.875-876.

182

176

R.A. 8371 states:

183

Sec. 65. Primacy of Customary Laws and Practices. When disputes involve ICCs/IPs, customary laws and
practices shall be used to resolve the dispute.

The Civil Code provides:

Sec. 38, R.A. 8371.

Secs. 44 (a), (b), (c),(d), (f), (g), (h), (I), (j), (k), (l), (m), (n),
(p), (q), R.A. 8371.
184

Sec. 44 (o), R.A. 8371.

185

Secs. 44 (e), 51-54, 62, R.A. 8371.

186

1 Am Jur 2d, Administrative Law, 55.

MENDOZA, J.:

187

Sec. 62, R.A. 8371.

This suit was instituted to determine the constitutionality of certain


provisions of R.A. No. 8371, otherwise known as the Indigenous
Peoples Rights Act. Petitioners do not complain of any injury as a
result of the application of the statute to them. They assert a right to
seek an adjudication of constitutional questions as citizens and
taxpayers, upon the plea that the questions raised are of
"transcendental importance."

Sec. 17. The President shall have control of all the executive
departments, bureaus, and offices. He shall ensure that the laws
be faithfully executed.
188

189

Sec. 44 (f), R.A. 8371.

190

Sec. 44 (g), R.A, 8371.

191

Sec. 44 (j), R.A. 8371.

192

Sec. 44 (p), R.A. 8371.

193

Sec. 40, R.A. 8371.

194

Sec. 42, R.A. 8371.

195

Supra note 75.

196

R.A. 7076.

197

R.A. 7942.

198

Section 56, R.A. 8371.

The Lawphil Project - Arellano Law Foundation

SEPARATE OPINION

The judicial power vested in this Court by Art. VIII, 1 extends only
to cases and controversies for the determination of such proceedings
as are established by law for the protection or enforcement of rights,
or the prevention, redress or punishment of wrongs.1 In this case, the
purpose of the suit is not to enforce a property right of petitioners
against the government and other respondents or to demand
compensation for injuries suffered by them as a result of the
enforcement of the law, but only to settle what they believe to be the
doubtful character of the law in question. Any judgment that we
render in this case will thus not conclude or bind real parties in the
future, when actual litigation will bring to the Court the question of
the constitutionality of such legislation. Such judgment cannot be
executed as it amounts to no more than an expression of opinion upon
the validity of the provisions of the law in question.2
I do not conceive it to be the function of this Court under Art. VIII, 1
of the Constitution to determine in the abstract whether or not there
has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of the legislative and executive departments in
enacting the IPRA. Our jurisdiction is confined to cases or
controversies. No one reading Art. VIII, 5 can fail to note that, in
enumerating the matters placed in the keeping of this Court, it
uniformly begins with the phrase "all cases. . . ."

The statement that the judicial power includes the duty to determine
whether there has been a grave abuse of discretion was inserted in Art.
VIII, 1 not really to give the judiciary a roving commission to right
any wrong it perceives but to preclude courts from invoking the
political question doctrine in order to evade the decision of certain
cases even where violations of civil liberties are alleged.
The statement is based on the ruling of the Court in Lansang v.
Garcia,3 in which this Court, adopting the submission of the Solicitor
General, formulated the following test of its jurisdiction in such cases:
[J]udicial inquiry into the basis of the questioned proclamation can
go no further than to satisfy the Court not that the Presidents decision
is correct and that public safety was endangered by the rebellion and
justified the suspension of the writ, but that in suspending the writ, the
President did not act arbitrarily.
That is why Art. VII, 18 now confers on any citizen standing to
question the proclamation of martial law or the suspension of the
privilege of the writ of habeas corpus. It is noteworthy that Chief
Justice Roberto Concepcion, who chaired the Committee on the
Judiciary of the Constitutional Commission, was the author of the
opinions of the Court in Lopez v. Roxas and Lansang v. Garcia.
Indeed, the judicial power cannot be extended to matters which do not
involve actual cases or controversies without upsetting the balance of
power among the three branches of the government and erecting, as it
were, the judiciary, particularly the Supreme Court, as a third branch
of Congress, with power not only to invalidate statutes but even to
rewrite them. Yet that is exactly what we would be permitting in this
case were we to assume jurisdiction and decide wholesale the
constitutional validity of the IPRA contrary to the established rule that
a party can question the validity of a statute only if, as applied to him,
it is unconstitutional. Here the IPRA is sought to be declared void on
its face.

The only instance where a facial challenge to a statute is allowed is


when it operates in the area of freedom of expression. In such
instance, the overbreadth doctrine permits a party to challenge the
validity of a statute even though as applied to him it is not
unconstitutional but it might be if applied to others not before the
Court whose activities are constitutionally protected. Invalidation of
the statute "on its face" rather than "as applied" is permitted in the
interest of preventing a "chilling" effect on freedom of expression.
But in other cases, even if it is found that a provision of a statute is
unconstitutional, courts will decree only partial invalidity unless the
invalid portion is so far inseparable from the rest of the statute that a
declaration of partial invalidity is not possible.
For the Court to exercise its power of review when there is no case or
controversy is not only to act without jurisdiction but also to run the
risk that, in adjudicating abstract or hypothetical questions, its
decision will be based on speculation rather than experience.
Deprived of the opportunity to observe the impact of the law, the
Court is likely to equate questions of constitutionality with questions
of wisdom and is thus likely to intrude into the domain of legislation.
Constitutional adjudication, it cannot be too often repeated, cannot
take place in a vacuum.
Some of the brethren contend that not deciding the constitutional
issues raised by petitioners will be a "galling cop out"4 or an
"advocacy of timidity, let alone isolationism."5 To decline the exercise
of jurisdiction in this case is no more a "cop out" or a sign of
"timidity" than it was for Chief Justice Marshall in Marbury v.
Madison6 to hold that petitioner had the right to the issuance of his
commission as justice of the peace of the District of Columbia only to
declare in the end that after all mandamus did not lie, because 13 of
the Judiciary Act of 1789, which conferred original jurisdiction on the
United States Supreme Court to issue the writ of mandamus, was
unconstitutional as the courts jurisdiction is mainly appellate.

Today Marbury v. Madison is remembered for the institution of the


power of judicial review, and so that there can be no doubt of this
power of our Court, we in this country have enshrined its principle in
Art. VIII, 1. Now, the exercise of judicial review can result either in
the invalidation of an act of Congress or in upholding it. Hence, the
checking and legitimating functions of judicial review so well
mentioned in the decisions7 of this Court.
To decline, therefore, the exercise of jurisdiction where there is no
genuine controversy is not to show timidity but respect for the
judgment of a coequal department of government whose acts, unless
shown to be clearly repugnant to the fundamental law, are presumed
to be valid. The polestar of constitutional adjudication was set forth
by Justice Laurel in the Angara case when he said that "this power of
judicial review is limited to actual cases and controversies to be
exercised after full opportunity of argument by the parties, and limited
further to the constitutional question raised or the very lis mota,
presented."8 For the exercise of this power is legitimate only in the last
resort, and as a necessity in the determination of real, earnest, and
vital controversy between individuals.9Until, therefore, an actual case
is brought to test the constitutionality of the IPRA, the presumption of
constitutionality, which inheres in every statute, must be accorded to
it.
Justice Kapunan, on the other hand, cites the statement in Severino v.
Governor General,10 reiterated in Tanada v. Tuvera,11 that "when the
question is one of public right and the object of mandamus to procure
the enforcement of a public duty, the people are regarded as the real
party in interest, and the relator at whose instigation the proceedings
are instituted need not show that he has any legal or special interest in
the result, it being sufficient that he is a citizen and as such is
interested in the execution of the laws." On the basis of this statement,
he argues that petitioners have standing to bring these proceedings.12

In Severino v. Governor General,13 the question was whether


mandamus lay to compel the Governor General to call a special
election on the ground that it was his duty to do so. The ruling was
that he did not have such a duty. On the other hand, although
mandamus was issued in Tanada v. Tuvera, it was clear that
petitioners had standing to bring the suit, because the public has a
right to know and the failure of respondents to publish all decrees and
other presidential issuances in the Official Gazette placed petitioners
in danger of violating those decrees and issuances. But, in this case,
what public right is there for petitioners to enforce when the IPRA
does not apply to them except in general and in common with other
citizens.
For the foregoing reasons I vote to dismiss the petition in this case.

Footnotes
1

Lopez v. Roxas, 17 SCRA 756, 761 (1966).

Muskrat v. United States, 279 U.S. 346, 55 L.Ed. 246 (1911).

42 SCRA 448, 481 (1971) (emphasis on the original).

Panganiban, J., Separate Opinion, p. 2.

Vitug, J., Separate Opinion, p. 1.

1 Cranch 137, 2 L.Ed. 60 (1803).

Occea v. Commission on Elections; Gonzales v. The


National Treasurer, 104 SCRA 1 (1981); Mitra v. Commission
on Elections, 104 SCRA 59 (1981).
7

Angara v. Electoral Commission, 63 Phil. 139, 158 (1936).

Philippine Association of Colleges and Universities v.


Secretary of Education, 97 Phil. 806 (1955).

submission of memoranda. Indeed, it would then be a galling copout


for us to dismiss it on mere technical or procedural grounds.

10

16 Phil. 366 (1913).

11

136 SCRA 27 (1985).

12

Kapunan, J., Separate Opinion, pp. 21-23.

13

Supra note 10.

The Lawphil Project - Arellano Law Foundation

SEPARATE OPINION
(Concurring and Dissenting)
PANGANIBAN, J.:
I concur with the draft ponencia of Mr. Justice Santiago M. Kapunan
in its well-crafted handling of the procedural or preliminary issues. In
particular, I agree that petitioners have shown an actual case or
controversy involving at least two constitutional questions of
transcendental importance,1 which deserve judicious disposition on
the merits directly by the highest court of the land.2 Further, I am
satisfied that the various aspects of this controversy have been fully
presented and impressively argued by the parties. Moreover,
prohibition and mandamus are proper legal remedies3 to address the
problems raised by petitioners. In any event, this Court has given due
course to the Petition, heard oral arguments and required the

Protection of Indigenous Peoples Rights Must Be Within the


Constitutional Framework
With due respect, however, I dissent from the ponencias resolution of
the two main substantive issues, which constitute the core of this case.
Specifically, I submit that Republic Act (RA) No. 8371, otherwise
known as the Indigenous Peoples Rights Act (IPRA) of 1997, violates
and contravenes the Constitution of the Philippines insofar as 1. It recognizes or, worse, grants rights of ownership over
"lands of the public domain, waters, x x x and other natural
resources" which, under Section 2, Article XII of the
Constitution, "are owned by the State" and "shall not be
alienated." I respectfully reject the contention that "ancestral
lands and ancestral domains are not public lands and have
never been owned by the State." Such sweeping statement
places substantial portions of Philippine territory outside the
scope of the Philippine Constitution and beyond the collective
reach of the Filipino people. As will be discussed later, these
real properties constitute a third of the entire Philippine
territory; and the resources, 80 percent of the nation's natural
wealth.
2. It defeats, dilutes or lessens the authority of the State to
oversee the "exploration, development, and utilization of
natural resources," which the Constitution expressly requires to
"be under the full control and supervision of the State."
True, our fundamental law mandates the protection of the indigenous
cultural communities right to their ancestral lands, but such mandate
is "subject to the provisions of this Constitution."4 I concede that
indigenous cultural communities and indigenous peoples (ICCs/IPs)

may be accorded preferential rights to the beneficial use of public


domains, as well as priority in the exploration, development and
utilization of natural resources. Such privileges, however, must be
subject to the fundamental law.
Consistent with the social justice principle of giving more in law to
those who have less in life, Congress in its wisdom may grant
preferences and prerogatives to our marginalized brothers and sisters,
subject to the irreducible caveat that the Constitution must be
respected. I personally believe in according every benefit to the poor,
the oppressed and the disadvantaged, in order to empower them
to equally enjoy the blessings of nationhood. I cannot, however, agree
to legitimize perpetual inequality of access to the nation's wealth or to
stamp the Court's imprimatur on a law that offends and degrades the
repository of the very authority of this Court - the Constitution of the
Philippines.
The Constitution Is a Compact
My basic premise is that the Constitution is the fundamental law of
the land, to which all other laws must conform.5It is the people's
quintessential act of sovereignty, embodying the principles upon
which the State and the government are founded.6 Having the status of
a supreme and all-encompassing law, it speaks for all the people all
the time, not just for the majority or for the minority at intermittent
times. Every constitution is a compact made by and among the
citizens of a State to govern themselves in a certain manner.7 Truly,
the Philippine Constitution is a solemn covenant made by all the
Filipinos to govern themselves. No group, however blessed, and no
sector, however distressed, is exempt from its compass.
RA 8371, which defines the rights of indigenous cultural communities
and indigenous peoples, admittedly professes a laudable intent. It was
primarily enacted pursuant to the state policy enshrined in our
Constitution to "recognize and promote the rights of indigenous

cultural communities within the framework of national unity and


development."8 Though laudable and well-meaning, this statute,
however, has provisions that run directly afoul of our fundamental law
from which it claims origin and authority. More specifically, Sections
3(a) and (b), 5, 6, 7(a) and (b), 8 and other related provisions
contravene the Regalian Doctrine - the basic foundation of the State's
property regime.
Public Domains and Natural Resources Are Owned by the State and
Cannot Be Alienated or Ceded
Jura regalia was introduced into our political system upon the
"discovery" and the "conquest" of our country in the sixteenth
century. Under this concept, the entire earthly territory known as the
Philippine Islands was acquired and held by the Crown of Spain. The
King, as then head of State, had the supreme power or exclusive
dominion over all our lands, waters, minerals and other natural
resources. By royal decrees, though, private ownership of real
property was recognized upon the showing of (1) a title deed; or (2)
ancient possession in the concept of owner, according to which a title
could be obtained by prescription.9 Refusal to abide by the system and
its implementing laws meant the abandonment or waiver of ownership
claims.
By virtue of the 1898 Treaty of Paris, the Philippine archipelago was
ceded to the United States. The latter assumed administration of the
Philippines and succeeded to the property rights of the Spanish
Crown. But under the Philippine Bill of 1902, the US Government
allowed and granted patents to Filipino and US citizens for the "free
and open x x x exploration, occupation and purchase [of mines] and
the land in which they are found."10 To a certain extent, private
individuals were entitled to own, exploit and dispose of mineral
resources and other rights arising from mining patents.

This US policy was, however, rejected by the Philippine


Commonwealth in 1935 when it crafted and ratified our first
Constitution. Instead, the said Constitution embodied the Regalian
Doctrine, which more definitively declared as belonging to the State
all lands of the public domain, waters, minerals and other natural
resources.11 Although respecting mining patentees under the
Philippine Bill of 1902, it restricted the further exploration,
development and utilization of natural resources, both as to who
might be entitled to undertake such activities and for how long. The
pertinent provision reads:
"SECTION 1 [Art. XIII]. All agricultural, timber, and mineral lands of
the public domain, waters, minerals, coal, petroleum, and other
mineral oils, all forces of potential energy, and other natural resources
of the Philippines belong to the State, and their disposition,
exploitation, development, or utilization shall be limited to citizens of
the Philippines, or to corporations or associations at least sixty per
centum of the capital of which is owned by such citizens, subject to
any existing right, grant, lease, or concession at the time of the
inauguration of the Government established under this Constitution.
Natural resources, with the exception of public agricultural land, shall
not be alienated, and license, concession, or lease for the exploitation,
development, or utilization of any of the natural resources shall be
granted for a period exceeding twenty-five years, renewable for
another twenty-five years, except as to water rights for irrigation,
water supply, fisheries, or industrial uses other than the development
of water power, in which cases beneficial use may be the measure and
the limit of the grant."
The concept was carried over in the 1973 and the 1987 Constitutions.
Hence, Sections 8 and 9, Article XIV of the 1973 Constitution, state:
"SEC. 8. All lands of the public domain, waters, minerals, coal,
petroleum and other mineral oils, all forces of potential energy,
fisheries, wildlife, and other natural resources of the Philippines

belong to the State. With the exception of agricultural, industrial or


commercial, residential, and resettlement lands of the public domain,
natural resources shall not be alienated and no license, concession, or
lease for the exploration, development, exploitation, utilization of any
of the natural resources shall be granted for a period exceeding
twenty-five years, renewable for not more than twenty-five years,
except as to water rights for irrigation, water supply, fisheries, or
industrial uses other than the development of water power, in which
cases beneficial use may be the measure and the limit of the grant.
SEC. 9. The disposition, exploration, development, exploitation, or
utilization of any of the natural resources of the Philippines shall be
limited to citizens of the Philippines, or to corporations or
associations at least sixty per centum of the capital of which is owned
by such citizens. The National Assembly, in the national interest, may
allow such citizens, corporations, or associations to enter into service
contracts for financial, technical, management, or other forms of
assistance with any foreign person or entity for the exploration,
development, exploitation, or utilization of any of the natural
resources. Existing valid and binding service contracts for financial,
technical, management, or other forms of assistance are hereby
recognized as such."
Similarly, Section 2, Article XII of the 1987 Constitution, provides:
"SEC. 2. All lands of the public domain, waters, minerals, coal,
petroleum, and other mineral oils, all forces of potential energy,
fisheries, forests or timber, wildlife, flora and fauna, and other natural
resources are owned by the State. With the exception of agricultural
lands, all other natural resources shall not be alienated. The
exploration, development, and utilization of natural resources shall be
under the full control and supervision of the State. The State may
directly undertake such activities, or it may enter into co-production,
joint venture, or production-sharing agreements with Filipino citizen,
or corporations or associations at least sixty per centum of whose

capital is owned by such citizens. Such agreements may be for a


period not exceeding twenty-five years, renewable for not more than
twenty-five years, and under such terms and conditions as may be
provided by law. In cases of water rights for irrigation, water supply,
fisheries, or industrial uses other than the development of water
power, beneficial use may be the measure and limit of the grant.

Filipino posterity. The arguments in support of the provision are


encapsulated by Aruego as follows: "[T]he natural resources,
particularly the mineral resources which constituted a great source of
wealth, belonged not only to the generation then but also to the
succeeding generation and consequently should be conserved for
them."12

"The State shall protect the nation's marine wealth in its archipelagic
waters, territorial sea, and exclusive economic zone, and reserve its
use and enjoyment exclusively to Filipino citizens.

Thus, after expressly declaring that all lands of the public domain,
waters, minerals, all forces of energy and other natural resources
belonged to the Philippine State, the Commonwealth absolutely
prohibited the alienation of these natural resources. Their disposition,
exploitation, development and utilization were further restricted only
to Filipino citizens and entities that were 60 percent Filipino-owned.
The present Constitution even goes further by declaring that such
activities "shall be under the full control and supervision of the State."
Additionally, it enumerates land classifications and expressly states
that only agricultural lands of the public domain shall be alienable.
We quote below the relevant provision:13

"The Congress may, by law, allow small-scale utilization of natural


resources by Filipino citizens, as well as cooperative fish farming,
with priority to subsistence fishermen and fish workers in rivers,
lakes, bays and lagoons.
"The President may enter into agreements with foreign-owned
corporations involving either technical or financial assistance for
large-scale exploration, development, and utilization of minerals,
petroleum, and other mineral oils according to the general terms and
conditions provided by law, based on real contributions to the
economic growth and general welfare of the country. In such
agreements, the State shall promote the development and use of local
scientific and technical resources.
"The President shall notify the Congress of every contract entered into
in accordance with this provision, within thirty days from its
execution."

"SEC. 3. Lands of the public domain are classified into agricultural,


forest or timber, mineral lands, and national parks. Agricultural lands
of the public domain may be further classified by law according to the
uses to which they may be devoted. Alienable lands of the public
domain shall be limited to agricultural lands. Private corporations or
associations may not hold such alienable lands of the public domain
except by lease, for a period not exceeding twenty-five years,
renewable for not more than twenty-five years, and not to exceed one
thousand hectares in area. x x x."

The adoption of the Regalian Doctrine by the Philippine


Commonwealth was initially impelled by the desire to preserve the
nation's wealth in the hands of the Filipinos themselves. Nationalism
was fervent at the time, and our constitutional framers decided to
embody the doctrine in our fundamental law. Charging the State with
the conservation of the national patrimony was deemed necessary for

Mr. Justice Kapunan upholds private respondents and intervenors in


their claim that all ancestral domains and lands are outside the
coverage of public domain; and that these properties - including
forests, bodies of water, minerals and parks found therein - are private
and have never been part of the public domain, because they have
belonged to the indigenous peoples ancestors since time immemorial.

I submit, however, that all Filipinos, whether indigenous or not, are


subject to the Constitution. Indeed, no one is exempt from its allencompassing provisions. Unlike the 1935 Charter, which was subject
to "any existing right, grant, lease or concession," the 1973 and the
1987 Constitutions spoke in absolute terms. Because of the States
implementation of policies considered to be for the common good, all
those concerned have to give up, under certain conditions, even vested
rights of ownership.
In Republic v. Court of Appeals,14 this Court said that once minerals
are found even in private land, the State may intervene to enable it to
extract the minerals in the exercise of its sovereign prerogative. The
land is converted into mineral land and may not be used by any
private person, including the registered owner, for any other purpose
that would impede the mining operations. Such owner would be
entitled to just compensation for the loss sustained.
In Atok Big-Wedge Mining Company v. IAC,15 the Court clarified that
while mining claim holders and patentees have the exclusive right to
the possession and enjoyment of the located claim, their rights are not
absolute or strictly one of ownership. Thus, failure to comply with the
requirements of pertinent mining laws was deemed an abandonment
or a waiver of the claim.

Verily, as petitioners undauntedly point out, four hundred years of


Philippine political history cannot be set aside or ignored by IPRA,
however well-intentioned it may be. The perceived lack of
understanding of the cultural minorities cannot be remedied by
conceding the nations resources to their exclusive advantage. They
cannot be more privileged simply because they have chosen to ignore
state laws. For having chosen not to be enfolded by statutes on
perfecting land titles, ICCs/IPs cannot now maintain their ownership
of lands and domains by insisting on their concept of "native title"
thereto. It would be plain injustice to the majority of Filipinos who
have abided by the law and, consequently, deserve equal opportunity
to enjoy the countrys resources.
Respondent NCIP claims that IPRA does not violate the Constitution,
because it does not grant ownership of public domains and natural
resources to ICCs/IPs. "Rather, it recognizes and mandates respect for
the rights of indigenous peoples over their ancestral lands and
domains that had never been lands of the public domain."16 I say,
however, that such claim finds no legal support. Nowhere in the
Constitution is there a provision that exempts such lands and domains
from its coverage. Quite the contrary, it declares that all lands of the
public domain and natural resources "are owned by the State"; and
"with the exception of agricultural lands, all other natural resources
shall not be alienated."
As early as Oh Cho v. Director of Lands,17 the Court declared as
belonging to the public domain all lands not acquired from the
government, either by purchase or by grant under laws, orders or
decrees promulgated by the Spanish government; or by possessory
information under Act 496 (Mortgage Law).
On the other hand, Intervenors Flavier et al.18 differentiate the concept
of ownership of ICCs/IPs from that which is defined in Articles 427
and 428 of the Civil Code. They maintain that "[t]here are variations
among ethnolinguistic groups in the Cordillera, but a fair synthesis of

these refers to x x x the tribal right to use the land or to territorial


control x x x, a collective right to freely use the particular territory x x
x [in] the concept of trusteeship.'"
In other words, the "owner" is not an individual. Rather, it is a tribal
community that preserves the property for the common but
nonetheless exclusive and perpetual benefit of its members, without
the attributes of alienation or disposition. This concept, however, still
perpetually withdraws such property from the control of the State and
from its enjoyment by other citizens of the Republic. The perpetual
and exclusive character of private respondents claims simply makes
them repugnant to basic fairness and equality.
Private respondents and intervenors trace their "ownership" of
ancestral domains and lands to the pre-Spanish conquest. I should say
that, at the time, their claims to such lands and domains was limited to
the surfaces thereof since their ancestors were agriculture-based. This
must be the continuing scope of the indigenous groups ownership
claims: limited to land, excluding the natural resources found within.
In any event, if all that the ICCs/IPs demand is preferential use - not
ownership - of ancestral domains, then I have no disagreement.
Indeed, consistent with the Constitution is IPRAs Section 5719without the too-broad definitions under Section 3 (a) and (b) - insofar
as it grants them priority rights in harvesting, extracting, developing
or exploiting natural resources within ancestral domains.
The concerted effort to malign the Regalian Doctrine as a vestige of
the colonial past must fail. Our Constitution vests the ownership of
natural resources, not in colonial masters, but in all the Filipino
people. As the protector of the Constitution, this Court has the sworn
duty to uphold the tenets of that Constitution - not to dilute,
circumvent or create exceptions to them.
Cario v. Insular Government Was Modified by the Constitution

In this connection, I submit that Cario v. Insular Government20 has


been modified or superseded by our 1935, 1973 and 1987
Constitutions. Its ratio should be understood as referring only to a
means by which public agricultural land may be acquired by citizens.
I must also stress that the claim of Petitioner Cario refers to land
ownership only, not to the natural resources underneath or to the aerial
and cosmic space above.
Significantly, in Director of Land Management v. Court of Appeals,21 a
Decision handed down after our three Constitutions had taken effect,
the Court rejected a cultural minority member's registration of land
under CA 141, Section 48 (c).22 The reason was that the property fell
within the Central Cordillera Forest Reserve. This Court quoted with
favor the solicitor generals following statements:
"3. The construction given by respondent Court of Appeals to the
particular provision of law involved, as to include even forest reserves
as susceptible to private appropriation, is to unconstitutionally apply
such provision. For, both the 1973 and present Constitutions do not
include timber or forest lands as alienable. Thus, Section 8, Article
XIV of 1973 Constitution states that with the exception of
agricultural, industrial or commercial, residential and resettlement
lands of the public domain, natural resources shall not be alienated.
The new Constitution, in its Article XII, Section 2, also expressly
states that with the exception of agricultural lands, all other natural
resources shall not be alienated."
Just recently, in Gordula v. Court of Appeals,23 the Court also stated
that "forest land is incapable of registration, and its inclusion in a title
nullifies that title. To be sure, the defense of indefeasiblity of a
certificate of title issued pursuant to a free patent does not lie against
the state in an action for reversion of the land covered thereby when
such land is a part of a public forest or of a forest reservation, the
patent covering forest land being void ab initio."

RA 8371 Violates the Inalienability of Natural Resources and of


Public Domains
The ponencia theorizes that RA 8371 does not grant to ICCs/IPs
ownership of the natural resources found within ancestral domains.
However, a simple reading of the very wordings of the law belies this
statement.
Section 3 (a)24 defines and delineates ancestral domains as "all areas
generally belonging to ICCs/IPs comprising lands, inland waters,
coastal areas, and natural resources therein, held under a claim of
ownership, occupied or possessed by ICCs/IPs, by themselves or
through their ancestors, communally or individually since time
immemorial, continuously to the present except when interrupted by
war, force majeure or displacement x x x. It shall include ancestral
lands, forests, pasture, residential, agricultural, and other lands
individually owned whether alienable and disposable or otherwise,
hunting grounds x x x bodies of water, mineral and other natural
resourcesx x x." (Emphasis ours.)
Clearly, under the above-quoted provision of IPRA, ancestral domains
of ICCs/IPs encompass the natural resources found therein. And
Section 7 guarantees recognition and protection of
their rights of ownership and possession over such domains.
The indigenous concept of ownership, as defined under Section 5 of
the law, "holds that ancestral domains are the ICCs/IPs private but
community property which belongs to all generations and therefore
cannot be sold, disposed or destroyed." Simply put, the law declares
that ancestral domains, including the natural resources found therein,
are owned by ICCs/IPs and cannot be sold, disposed or destroyed. Not
only does it vest ownership, as understood under the Civil Code; it
adds perpetual exclusivity. This means that while ICCs/IPs could own
vast ancestral domains, the majority of Filipinos who are not
indigenous can never own any part thereof.

On the other hand, Section 3 (b)25 of IPRA defines ancestral lands as


referring to "lands occupied, possessed and utilized by individuals,
families and clans of the ICCs/IPs since time immemorial x x x, under
claims of individual or traditional group ownership, x x x including,
but not limited to, residential lots, rice terraces or paddies, private
forests, swidden farms and tree lots." Section 8 recognizes and
protects "the right of ownership and possession of ICCs/IPs to their
ancestral lands." Such ownership need not be by virtue of a certificate
of title, but simply by possession since time immemorial.
I believe these statutory provisions directly contravene Section 2,
Article XII of the Constitution, more specifically the declaration that
the State owns all lands of the public domain, minerals and natural
resources none of which, except agricultural lands, can be alienated.
In several cases, this Court has consistently held that non-agricultural
land must first be reclassified and converted into alienable or
disposable land for agricultural purposes by a positive act of the
government.26 Mere possession or utilization thereof, however long,
does not automatically convert them into private properties.27 The
presumption is that "all lands not appearing to be clearly within
private ownership are presumed to belong to the State. Hence, x x x
all applicants in land registration proceedings have the burden of
overcoming the presumption that the land thus sought to be registered
forms part of the public domain. Unless the applicant succeeds in
showing by clear and convincing evidence that the property involved
was acquired by him or his ancestors either by composition title from
the Spanish Government or by possessory information title, or any
other means for the proper acquisition of public lands, the property
must be held to be part of the public domain. The applicant must
present competent and persuasive proof to substantiate his claim; he
may not rely on general statements, or mere conclusions of law other
than factual evidence of possession and title."28
Respondents insist, and the ponencia agrees, that paragraphs (a) and
(b) of Sections 3 are merely definitions and should not be construed

independently of the other provisions of the law. But, precisely, a


definition is "a statement of the meaning of a word or word
group."29 It determines or settles the nature of the thing or person
defined.30 Thus, after defining a term as encompassing several items,
one cannot thereafter say that the same term should be interpreted as
excluding one or more of the enumerated items in its definition. For
that would be misleading the people who would be bound by the law.
In other words, since RA 8371 defines ancestral domains as including
the natural resources found therein and further states that ICCs/IPs
own these ancestral domains, then it means that ICCs/IPs can own
natural resources.
In fact, Intervenors Flavier et al. submit that everything above and
below these ancestral domains, with no specific limits, likewise
belongs to ICCs/IPs. I say that this theory directly contravenes the
Constitution. Such outlandish contention further disregards
international law which, by constitutional fiat, has been adopted as
part of the law of the land.31
No Land Area Limits Are Specified by RA 8371
Under Section 3, Article XII of the Constitution, Filipino citizens may
acquire no more than 12 hectares of alienable public land, whether by
purchase, homestead or grant. More than that, but not exceeding 500
hectares, they may hold by lease only.

RA 8371, however, speaks of no area or term limits to ancestral lands


and domains. In fact, by their mere definitions, they could cover vast
tracts of the nation's territory. The properties under the assailed law
cover everything held, occupied or possessed "by themselves or
through their ancestors, communally or individually since time
immemorial." It also includes all "lands which may no longer be
exclusively occupied by [them] but from which they traditionally had
access to for their subsistence and traditional activities, particularly
the home ranges of ICCs/IPs who are still nomadic and/or shifting
cultivators."
Nomadic groups have no fixed area within which they hunt or forage
for food. As soon as they have used up the resources of a certain area,
they move to another place or go back to one they used to occupy.
From year to year, a growing tribe could occupy and use enormous
areas, to which they could claim to have had "traditional access." If
nomadic ICCs/IPs succeed in acquiring title to their enlarging
ancestral domain or land, several thousands of hectares of land may
yet be additionally delineated as their private property.
Similarly, the Bangsa Moro people's claim to their ancestral land is
not based on compounded or consolidated title, but "on a collective
stake to the right to claim what their forefathers secured for them
when they first set foot on our country."32 They trace their right to
occupy what they deem to be their ancestral land way back to their
ancient sultans and datus, who had settled in many islands that have
become part of Mindanao. This long history of occupation is the basis
of their claim to their ancestral lands.33
Already, as of June 1998, over 2.5 million hectares have been claimed
by various ICCs/IPs as ancestral domains; and over 10 thousand
hectares, as ancestral lands.34 Based on ethnographic surveys, the
solicitor general estimates that ancestral domains cover 80 percent of
our mineral resources and between 8 and 10 million of the 30 million
hectares of land in the country.35 This means that four fifths of its

natural resources and one third of the country's land will be


concentrated among 12 million Filipinos constituting 110
ICCs,36 while over 60 million other Filipinos constituting the
overwhelming majority will have to share the remaining. These
figures indicate a violation of the constitutional principle of a "more
equitable distribution of opportunities, income, and wealth" among
Filipinos.
RA 8371 Abdicates the State Duty to Take Full Control and
Supervision of Natural Resources
Section 2, Article XII of the Constitution, further provides that "[t]he
exploration, development, and utilization of natural resources shall be
under the full control and supervision of the State." The State may (1)
directly undertake such activities; or (2) enter into co-production, joint
venture or production-sharing agreements with Filipino citizens or
entities, 60 percent of whose capital is owned by Filipinos.37 Such
agreements, however, shall not exceed 25 years, renewable for the
same period and under terms and conditions as may be provided by
law.
But again, RA 8371 relinquishes this constitutional power of full
control in favor of ICCs/IPs, insofar as natural resources found within
their territories are concerned. Pursuant to their rights of ownership
and possession, they may develop and manage the natural resources,
benefit from and share in the profits from the allocation and the
utilization thereof.38 And they may exercise such right without any
time limit, unlike non-ICCs/IPs who may do so only for a period not
exceeding 25 years, renewable for a like period.39 Consistent with the
Constitution, the rights of ICCs/IPs to exploit, develop and utilize
natural resources must also be limited to such period.
In addition, ICCs/IPs are given the right to negotiate directly the terms
and conditions for the exploration of natural resources,40 a right vested
by the Constitution only in the State. Congress, through IPRA, has in

effect abdicated in favor of a minority group the State's power of


ownership and full control over a substantial part of the national
patrimony, in contravention of our most fundamental law.
I make clear, however, that to the extent that ICCs/IPs may undertake
small-scale utilization of natural resources and cooperative fish
farming, I absolutely have no objection. These undertakings are
certainly allowed under the third paragraph of Section 2, Article XII
of the Constitution.
Having already disposed of the two major constitutional dilemmas
wrought by RA 8371 (1) ownership of ancestral lands and domains
and the natural resources therein; and (2) the ICCs/IPs' control of the
exploration, development and utilization of such resources I believe
I should no longer tackle the following collateral issues petitioners
have brought up:
1. Whether the inclusion of private lands within the coverage
of ancestral domains amounts to undue deprivation of private
property
2. Whether ICCs/IPs may regulate the entry/exit of migrants
3. Whether ancestral domains are exempt from real property
taxes, special levies and other forms of exaction
4. Whether customary laws and traditions of ICCs/IPs should
first be applied in the settlements of disputes over their rights
and claims
5. Whether the composition and the jurisdiction of the National
Commission of Indigenous Peoples (NCIP) violate the due
process and equal protection clauses

6. Whether members of the ICCs/IPs may be recruited into the


armed forces against their will
I believe that the first three of the above collateral issues have been
rendered academic or, at least, no longer of "transcendental
importance," in view of my contention that the two major IPRA
propositions are based on unconstitutional premises. On the other
hand, I think that in the case of the last three, it is best to await
specific cases filed by those whose rights may have been injured by
specific provisions of RA 8371.
Epilogue
Section 5, Article XII of the Constitution, provides:
"SEC. 5. The State, subject to the provisions of this Constitution and
national development policies and programs, shall protect the rights of
indigenous cultural communities to their ancestral lands to ensure
their economic, social, and cultural well being.
"The Congress may provide for the applicability of customary laws
governing property rights and relations in determining the ownership
and extent of ancestral domain."
Clearly, there are two parameters that must be observed in the
protection of the rights of ICCs/IPs: (1) the provisions of the 1987
Constitution and (2) national development policies and programs.
Indigenous peoples may have long been marginalized in Philippine
politics and society. This does not, however, give Congress any
license to accord them rights that the Constitution withholds from the
rest of the Filipino people. I would concede giving them priority in
the use, the enjoyment and the preservation of their ancestral lands
and domains.41 But to grant perpetual ownership and control of the
nation's substantial wealth to them, to the exclusion of other Filipino

citizens who have chosen to live and abide by our previous and
present Constitutions, would be not only unjust but also subversive of
the rule of law.
In giving ICCs/IPs rights in derogation of our fundamental law,
Congress is effectively mandating "reverse discrimination." In
seeking to improve their lot, it would be doing so at the expense of the
majority of the Filipino people. Such short-sighted and misplaced
generosity will spread the roots of discontent and, in the long term,
fan the fires of turmoil to a conflagration of national proportions.
Peace cannot be attained by brazenly and permanently depriving the
many in order to coddle the few, however disadvantaged they may
have been. Neither can a just society be approximated by maiming the
healthy to place them at par with the injured. Nor can the nation
survive by enclaving its wealth for the exclusive benefit of favored
minorities.
Rather, the law must help the powerless by enabling them to take
advantage of opportunities and privileges that are open to all and by
preventing the powerful from exploiting and oppressing them. This is
the essence of social justice empowering and enabling the poor to
be able to compete with the rich and, thus, equally enjoy the blessings
of prosperity, freedom and dignity.
WHEREFORE, I vote to partially GRANT the Petition and
to DECLARE as UNCONSTITUTIONAL Sections 3(a) and (b), 5, 6,
7(a) and (b), 8 and related provisions of RA 8371.

Footnotes

Kilosbayan v. Morato, 250 SCRA 130, 140, November 16,


1995; Association of Small Landowners v. Secretary of
Agrarian Reform, 175 SCRA 343, 365, July 14, 1989; Antonio
v. Dinglasan, 84 Phil 368 (1949).

12

13

3, Art. XII, 1987 Constitution.

Taada v. Angara, 272 SCRA 18, 46, May 2, 1997; Santiago


v. Comelec, 270 SCRA 106, 123-24, March 19, 1997; Basco v.
PAGCOR, 197 SCRA 52, 60, May 14, 1991.

14

160 SCRA 228, 239, April 15, 1988.

15

261 SCRA 528, September 9, 1996.

II Aruego, The Framing of the Philippine Constitution 603,


quoted in Bernas, supra, p. 1010.

Tanada v. Angara, ibid.

16

NCIPs Memorandum, p. 24.

5, Art. XII, 1987 Constitution.

17

75 Phil 890, 892, August 31, 1946.

16 CJS 3.

18

Intervenors Memorandum, pp. 33 et seq.

16 Am Jur 2d 2.

19

Ibid.

22, Art. II of the Constitution.

Abaoag v. Director of Lands, 45 Phil 518 (1923), cited in


petitioners' Memorandum.

"SEC. 57. Natural Resources within Ancestral Domains.


The ICCs/IPs shall have priority rights in the harvesting,
extraction, development or exploitation of any natural
resources within the ancestral domains. x x x."
20

41 Phil 935, February 23, 1909.

21

172 SCRA 455, 463, April 18, 1989, per Gutierrez Jr., J.

Soledad M. Cagampang-de Castro, "The Economic Policies


on Natural Resources Under the 1987 Constitution
Revisited," Journal of the Integrated Bar of the
Philippines, Vol. XXV, Nos. 3 & 4 (1999), p. 51.
10

In a republican system of government, the concept of jura


regalia is stripped of royal overtones; ownership is vested in
the State, instead. (Joaquin G. Bernas, SJ, The Constitution of
the Republic of the Philippines: A Commentary, 1996 ed., p.
1009-1010.)
11

"(c) Members of the national cultural minorities who by


themselves or through their predecessors-in-interest have been
in open, continuous, exclusive and notorious possession and
occupation of lands of the public domain suitable to
agriculture, whether disposable or not, under a bona fide claim
of ownership for at least 30 years shall be entitled to the rights
granted in subsection (b) hereof. (As amended by R.A. No.
3872, section 1, approved June 18, 1964)."
22

23

284 SCRA 617, 633, January 22, 1998, per Puno, J.

"a) Ancestral Domains - Subject to Section 56 hereof, refers


to all areas generally belonging to ICCs/IPs comprising lands,
inland waters, coastal areas, and natural resources therein, held
under a claim of ownership, occupied or possessed by
ICCs/IPs, by themselves or through their ancestors,
communally or individually since time immemorial,
continuously to the present except when interrupted by
war, forcemajeure or displacement by force, deceit, stealth or
as a consequence of government projects or any other
voluntary dealings entered into by government and private
individuals/corporations, and which are necessary to ensure
their economic, social and cultural welfare. It shall include
ancestral lands individually owned whether alienable and
disposable or otherwise, hunting grounds, burial grounds,
worship areas, bodies of water, mineral and other natural
resources, and lands which may no longer be exclusively
occupied by ICCs/IPs but from which they traditionally had
access to for their subsistence and traditional activities,
particularly the home ranges of ICCs/IPs who are still nomadic
and/or shifting cultivators."
24

"b) Ancestral Lands - Subject to Section 56 hereof, refers to


lands occupied, possessed and utilized by individuals, families
and clans who are members of the ICCs/IPs since time
immemorial, by themselves or through their predecessors-ininterest, under claims of individual or traditional group
ownership, continuously, to the present except when
interrupted by war, force majeure or displacement by force,
deceit, stealth, or as a consequence of government projects and
other voluntary dealings entered into by government and
private individuals/corporations, including, but not limited to,
residential lots, rice terraces or paddies, private forests,
swidden farms and tree lots."
25

Director of Lands and Director of Forest Development v.


Intermediate Appellate Court, March 2, 1993;Director of
Lands v. Aquino, 192 SCRA 296, December 17,
1990; Sunbeam Convenience Foods, Inc. v. Court of
Appeals, January 29, 1990.
26

Ibid., Margolles v. Court of Appeals, February 14,


1994; Gordula v. Court of Appeals, supra.
27

Republic v. Sayo, October 31, 1990, per


Narvasa, J. (later CJ). See also Republic v. Court of
Appeals,supra.
28

Websters Third New International Dictionary; Petitioners


Memorandum, p. 41.
29

30

Ibid.

31

2, Art. II of the Constitution.

Cecilio R. Laurente, "The King's Hand: The Regalian


Doctrine as a Contributing Factor in the Mindanao
Conflict," Human Rights Agenda, Vol. 5, Issue No. 7, July &
August 2000, pp. 6-7.
32

33

Ibid.

34

Solicitor General's Memorandum, p. 3; rollo, p. 651.

35

Ibid., pp. 4-5.

Ibid. See also Datu Vic Saway, "Indigenous Peoples and the
Uplands: A Situationer," Proceedings of the 6th Upland NGO
Consultative Conference, 23-27 August 1998, p. 30.
36

Or (3) in case of large-scale exploration, development and


utilization of minerals, enter through the President into
"agreements with foreign-owned corporations involving either
technical or financial assistance." (Miners Association of the
Philippines v. Factoran Jr., 240 SCRA 100, January 16, 1995.)
37

38

7(b), RA 7381.

39

57, ibid.

40

7(b), ibid.

As stated earlier, Sec. 57 of IPRA, insofar as it grants them


such priority, is constitutional.
41

Republic of the Philippines


SUPREME COURT
Manila
EN BANC
G.R. No. L-2506

April 16, 1906

F. STEWART JONES, plaintiff-appellee,


vs.
THE INSULAR GOVERNMENT, defendant-appellant.
Office of the Solicitor-General, for appellant.
Pillsbury and Sutro, for appellee.

WILLARD, J.:
On the 16th day of January, 1904 F. Stewart Jones presented a
petition to the Court of Land Registration asking that he be
inscribed as the owner of a certain tract of land situatd in the
Province of Benguet, and within the reservation defined in Act No.
636. The Solicitor-General appeared in the court below and
opposed the inscription upon the ground that the property was
public land. At the trial he objected to any consideration of the case
on the ground that the court had no jurisdiction to register land
situated in that reservation. The objections were overruled and
judgment entered in favor of the petitioner, from which judgment
the Government appealed to this court.
The act creating the Court of Land Registration (No. 496) gave it
jurisdiction throughout the Archipelago. By Act No. 1224, which
was approved August 31, 1904, and which applied to pending
cases, the court was deprived of jurisdiction over lands situated in
the Province of Benguet. That act, however, contained a proviso by
which the court was given jurisdiction over applications for
registration of title to land in all cases coming within the provisions
of Act No. 648. Act No. 648 provides in its first section that
The Civil Governor is hereby authorized and empowered by
executive order to reserve from settlement or public sale and
for specific public uses any of the public domain in the
Philippine Islands the use of which is not otherwise directed
by law.
Section 2 provides: "Whenever the Civil Governor, in writing, shall
certify that all public lands within limits by him described in the
Philippine Islands are reserved for civil public uses, either of the
Insular Government, or of any provincial or municipal government,
and shall give notice thereof to the judge of the Court of Land

Registration, it shall be the duty of the judge of said court" to


proceed in accordance with the provisions of Act No. 627. Act No.
627, which relates to military reservations, provides that when
notice is given to the Court of Land Registration of the fact that any
land has been so reserved, it shall be the duty of the court to issue
notice that claims for all private lands within the limits of the
reservation must be presented for registration under the Land
Registration Act within six months from the date of issuing such
notice, and that all lands not so presented within said time would be
conclusively adjudged to be public lands, and all claims on the part
of private individuals for such lands, not so presented, would be
forever barred.
On the 26th day of August, 1903, the following letter was directed
by Governor Taft to the judge of the Court of Land Registration:
SIR: You are hereby notified, in accordance with the
provisions of Act No. 648, entitled "An act authorizing the
Civil Governor to reserve for civil public purposes, and from
sale or settlement, any part of the public domain not
appropriated by law for special public purposes, until
otherwise directed by law, and extending the provisions of
Act Numbered Six hundred and twenty-seven so that public
lands desired to be reserved by the Insular Government for
public uses, or private lands desired to be purchased by the
Insular Government for such uses, may be brought under the
operation of the Land Registration Act;" that the Philippine
Commission has reserved for civil public uses of the
Government of the Philippine Islands the lands described in
Act No. 636, entitled "An act creating a Government
reservation at Baguio, in the Province of Benguet," enacted
February 11, 1903.

It is therefore requested that the land mentioned be forthwith


brought under the operation of the Land Registration Act and
become registered land in the meaning thereof, and that you
proceed in accordance with the provisions of Act No. 648.

Very respectfully,
(Signed)WM. H. TAFT,
"Civil Governor."

The court of Land Registration, acting upon this notice from the
Governor, issued the notice required by Act No. 627, and in
pursuance of that notice Jones, the appellee, within the six months
referred to in the notice, presented his petition asking that the land
be registered in his name.
The first claim of the Government is that the provisions of Act No.
648 were not complied with in the respect that this letter of the
Governor did not amount to a certificate that the lands had been
reserved. The Solicitor-General says in his brief:
To bring these lands within the operation of section 2 of Act
No. 648 it was necessary for the Civil Governor first to
certify that these lands were reserved for public uses, and
second to give notice thereof to the Court of Land
Registration.
We do not think that this contention can be sustained. Act No. 648
conferred power upon the Governor to reserve lands for public
purposes, but it did not make that power exclusive. The
Commission did not thereby deprive itself of the power to itself
make reservations in the future, if it saw fit; neither did it intend to
annul any reservations which it had formerly made. The contention

of the Government is true when applied to a case where the land


has not been reserved by the Commission. In such a case it would
be the duty of the Governor to first reserve it by an executive order,
and then to give notice to the Court of Land Registration, but where
the land had already been reserved by competent authority, it not
only was not necessary for the Governor to issue any executive
order reserving the land but he had no power to do so. In such cases
the only duty imposed upon him was to give notice to the Court of
Land Registration that the land had been reserved. This notice was
given in the letter above quoted. The court had jurisdiction to try
the case.
The petitioner Jones, on the 1st day of May, 1901, bought the land
in question from Sioco Cario, an Igorot. He caused his deed to the
land to be recorded in the office of the registrar of property on the
8th day of May of the same year. Prior thereto, and while Sioco
Cario was in possession of the land, he commenced proceedings
in court for the purpose of obtaining a possessory information in
accordance with the provisions of the Mortgage Law. This
possessory information he caused to be recorded in the office of the
registrar of property on the 12th day of March, 1901.
The evidence shows that Sioco Cario was born upon the premises
in question; that his grandfather, Ortega, during the life of the latter,
made a gift of the property to Sioco. This gift was made more than
twelve years before the filing of the petition in this case that is,
before the 16th day of January, 1904. Sioco's grandfather, Ortega,
was in possession of the land at the time the gift was made, and has
been in possession thereof for many years prior to said time. Upon
the gift being made Sioco took possession of the property, and
continued in such possession until his sale to Jones, the petitioner.
Since such sale Jones has been in possession of the land, and is
now in such possession. For more than twelve years prior to the

presentation of the petition the land had been cultivated by the


owners thereof, and the evidence is sufficient, in our opinion, to
bring the case within section 41 of the Code of Civil Procedure,
and to show such an adverse possession thereof for ten years as is
required by the section. The evidence of Sioco Carino shows that
what he did in the way of presenting a petition to the Spanish
Government in regard to a deed of the land was done by order of
the then comandante, and was limited to securing a measurement
thereof, as he then believed. These acts did not interrupt the
running of the statute of limitations.
Acts Nos. 627 and 648 provide that the provisions of section 41 of
the Code of Civil Procedure shall be applicable to all proceedings
taken under either one of these acts. These acts in effect provide
that in determining whether the applicant is the owner of the land
or not, the general statute of limitations shall be considered, and
shall be applied against the Government. The evidence showing, as
we have said, such an adverse possession, the petitioner proved his
ownership of the land if the Commission had authority to make the
statute of limitations applicable to these proceedings.
The claim of the Government is that this provision is void; that the
act thereby disposes of public lands; that Congress is the only
authority that can take such action, and that it has never authorized
or approved the action of the Commission in applying the statute of
limitations to proceedings under Acts Nos. 648 and 627. We do not
think that this contention can be sustained. Section 12 of the act of
Congress of July 1, 1902, provides as follows:
SEC. 12. That all the property and rights which may have
been acquired in the Philippine Islands by the United States
under the treaty of peace with Spain, signed December tenth,
eighteen hundred and ninety-eight, except such land or other
property as shall be designated by the President of the

United States for military and other reservations of the


Government of the United States, are hereby placed under
the control of the Government of said Islands, to be
administered for the benefit of the inhabitants thereof, except
as provided in this act.
This gives the Government of the Philippine Islands power to
dispose of these lands, and of all public lands, and to pass the law
in question, unless there is some provision in other parts of the act
of July 1, 1902, which takes away or limits that power. The
government says that such limitation is found in section 13 of the
act. That section and sections 14 and 15 are as follows:
SEC. 13. That the Gonvernment of the Philippine Islands,
subject to the provisions of this Act and except as herein
provided, shall classify according to its agricultural character
and productiveness, and shall immediately make rules and
regulations for the lease, sale, or other disposition of the
public lands other than timber or mineral lands, but such
rules and regulations shall not go into effect or have the
force of law until they have received the approval of the
President, and when approved by the President they shall be
submitted by him to Congress at the beginning of the next
ensuing session thereof and unless disapproved or amended
by Congress at said session they shall at the close of such
period have the force and effect of law in the Philippine
Islands: Provided, That a single homestead entry shall not
exceed sixteen hectares in extent.
SEC. 14. That the Government of the Philippine Islands is
hereby authorized and empowered to enact rules and
regulations and to prescribe terms and conditions to enable
persons to perfect their title to public lands in said Islands,
who, prior to the transfer of sovereignty from Spain to the

United States, had fulfilled all or some of the conditions


required by the Spanish laws and royal decrees of the
Kingdom of Spain for the acquisition of legal title thereto,
yet failed to secure conveyance of title; and the Philippine
Commission is authorized to issue patents, without
compensation, to any native of said Islands, conveying title
to any tract of land not more than sixteen hectares in extent,
which were public lands and had been actually occupied by
such native or his ancestors prior to and on the thirteenth of
August, eighteen hundred and ninety-eight.
SEC. 15. That the Government of the Philippine Islands is
hereby authorized and empowered, on such terms as it may
prescribe, by general legislation, to provide for the granting
or sale and conveyance to actual occupants and settlers and
other citizens of said Islands such parts and portions of the
public domain, other than timber and mineral lands, of the
United States in said Islands as it may deem wise, not
exceeding sixteen hectares to any one person, and for the
sale and conveyance of not more than one thousand and
twenty-four hectares to any corporation or association of
persons: Provided, That the grant or sale of such lands,
whether the purchase price be paid at once or in partial
payments, shall be conditioned upon actual and continued
occupancy, improvement, and cultivation of the premises
sold for a period of not less than five years, during which
time the purchaser or grantee can not alienate or encumber
said land or the title thereto; but such restriction shall not
apply to transfers of rights and title of inheritance under the
laws for the distribution of the estates of decedents.
It is first to be noted that section 13 does not apply to all lands.
Timber and mineral lands are expressly excluded. If the

Commission should pass laws relating to mineral lands without


submitting them to Congress, as it has done (Act No. 624), their
validity would not be determined by inquiring if they had been
submitted to Congress under section 13, but rather by inquiring if
they were inconsistent with other provisions of the act relating to
mineral lands. In other words, the fact that such laws were not
submitted to Congress would not necessarily make them void.
The same is true of legislation relating to coal lands, as to which
sections 53 and 57 contain provisions. By section 57 this
Government is authorized to issue all needful rules and regulations
for carrying into effect this and preceding sections relating to
mineral lands. Such regulations need not be submitted to Congress
for its approval. Act No. 1128, relating to coal lands, was not
submitted.
The act of Congress also contains provisions regarding the
purchase of lands beloning to religious orders. Section 65 provides
as to those lands as follows:
SEC. 65. That all lands acquired by virtue of the preceding
section shall constitute a part and portion of the public
property of the Government of the Philippine Islands, and
may be held, sold, and conveyed, or leased temporarily for a
period not exceeding three years after their acquisition by
said Government, on such terms and conditions as it may
prescribe, subject to the limitations and conditions provided
for in this Act. . . . Actual settlers and occupants at the time
said lands are acquired by the Government shall have the
preference over all others to lease, purchase, or acquire their
holdings within such reasonable time as may be determined
by said Government.

Does the clause "subject to the limitations and conditions of this


act" require a submission to Congress of legislation concerning
such land? If it does, then Act No. 1120, which contains such
provisions, is void, because it was never so submitted.
Section 18 of the act of Congress provides as follows:
That the forest laws and regulations now in force in the
Philippine Islands, with such modifications and amendments
as may be made by the Government of said Islands, are
hereby continued in force.
Must these modifications and amendments be submitted to
Congress for its approval? If they must be, then Act No. 1148,
relating thereto, is void, because it was not so submitted.
It seems very clear that rules and regulations concerning mineral,
timber, and coal lands, and lands bought from religious orders need
not be submitted to Congress. If they are not inconsistent with the
provisions of the act of Congress relating to the same subjects, they
are valid.
Congress, by section 12 of the act, gave to the Philippine
Government general power all property acquired from Spain. When
it required the Commision to immediately classify the agricultural
lands and to make rules and regulations for their sale, we do not
think that it intended to virtually repeal section 12. Such, however,
would be the effect of the rule contended for by the Govenrment.
If, notwithstanding the provisions of section 12, any law which in
any way directly or indirectly affects injuriously the title of the
Government to public lands must be submitted to the President and
Congress for approval, the general power given by section 12 is
taken away. An examination of some of the laws of the
Commission will show that a holding such as is contended for by

the Government in this case would apparently require a holding


that such other laws were also void. Act No. 496, which established
the Court of Land Registration, the court that tried this case,
provides in section 38 that the decrees of the court shall be
conclusive on and against all persons, including the Insular
Government, and all the branches thereof. Neither the President nor
Congress ever gave their consent to this law. They never consented
that the title of the Government to public lands should be submitted
to the judgment of the courts of the Islands. That this law provides
a means by which the Government may be deprived of its property
in such lands is apparent. In this very case, if the Government had
not appealed from the judgment, or if it should withdraw its appeal,
the lands would be lost to it--lands which the Attorney-General
claims are public lands. The land could not be more effectually lost
by the law shortening the statute of limitations than by this law
making the decrees of the Court of Land Registration binding on
the Government. In fact, the former law could not in any way
prejudice the Government if it were not for the latter law making
the judgments of this court binding upon it. Both of these laws in
an indirect way affect the title to public lands, but we do not think
that for that reason they are included in the terms "rules and
regulations" used in section 13 of the act of Congress.
Act No. 1039 granted to the Province of Cavite and to the pueblo of
Cavite certain public lands. This act never was submitted either to
the President or Congress. Acts Nos. 660 and 732 authorized the
leasing of parts of the San Lazaro estate. The Government leased
the sanitarium at Benguet, and provided for its sale. None of these
acts were ever submitted to the President or Congress, which
authorized such disposition. The Government owns many isolated
tracts of land, such as the Oriente Hotel, for example. It has
reclaimed from the sea a large tract of land in connection with the
works of the port of Manila. If the Government should desire to sell

this reclaimed land or to lease a part of it for the site of an hotel, or


should desire to sell the Oriente Hotel building, we do not think
legislation to accomplish such purposes would require the previous
approval of the President and of Congress. The general purpose of
section 13 was to require the Government to classify agricultural
lands and to pass a homestead law that is, a law which would
state the rules and regulations by virtue of which title to the public
lands of which it can be decided in every case whether an act of the
Commission constitutes a rule or regulation within the meaning of
section 13. It is sufficient to say that the law in question (Act No.
648), making a statute of limitations run against the Government
when the title to few scattered tracts of land throughout the
Archipelago is under consideration, is not such a rule or regulations
as required previous submission to the President and Congress. It
will be observed that be section 86 of the act of Congress of July 1,
1902, Congress reserves the right to annul all legislation of the
Commission.
There is nothing in section 14 which requires the rules and
regulations therein mentioned to be submitted to Congress. But it is
said that although as to Act No. 648 submission to Congress was
not required, it is nevertheless void when applied to one not a
native of the Islands, because forbidden by this section; and that
this section limits the power of the Commission to declare
possession alone sufficient evidence of title to cases in which the
claimant is native and in which the amount of land does not exceed
16 hectares.
Section 14 is not limited to agricultural lands, as are sections 13
and 15. It includes mineral and timber lands. So far as it relates to
proceedings theretofore taken under Spanish laws its benefits are
not limited to natives of the Islands nor to tracts not more than 16
hectares in extent. Where the only claim is possession, no

possession for any definite time prior to August 13, 1898, is


required, nor is proof of any possession whatever after that date
demanded. According to the strict letter of the section a native
would be entitled to a patent who proved that he had been in
possession for the months of July and August only of 1898. It is not
stated whether or not one who receives such a patent must occupy
the land for five years thereafter, as required by section 15. Neither
is it stated whether or not a person who was in possession for the
month of August, 1898, would be entitled to a patent in preference
to the actual settler spoken of in section 6. When legislating upon
the subject-matter of section 14, the Commission, in Act No. 926,
did not make such a limitation as has been suggested. Section 54,
paragraph 6, of that act is as follows:
All persons who by themselves or their predecessors in
interest have been in the open, continuous, exclusive, and
notorious possession and occupation of agricultural public
land, as defined by said act of Congress of July first,
nineteen hundred and two, under a bona fide claim of
ownership except as against the Government, for a period of
ten years next preceding the taking effect of this act, except
when prevented by war or force majeure, shall be
conclusively presumed to have performed all the conditions
essential to a Government grant and to have received the
same, and shall be entitled to a certificate of title to such
land under the provision of this chapter.
It is seen that this section does not exclude foreigners, nor is it
limited to tracts not exceeding 16 hectares in extent. To adopt the
view that the power of the Commission is so limited would require
a holding that this section is void as to foreigners and as to all tracts
of land over 16 hectares in extent.

This paragraph of section 54 of Act No. 926 is in substance a


continuation of Act No. 648 and an extension of its provisions to all
the lands of the Islands.
To adopt the construction contended for would lead to an unjust
result. By the terms of the first part of section 14 the Commission
has the power to perfect the title to 100 hectares of land as to which
a Spaniards may have done nothing more than to file an application
relating thereto, and of which he never was in possession, while by
the last party of the section the Commission would be entirely
without power to make any rules by which a native who by himself
and his ancestors had been in possession of 100 hectares. Such a
discrimination in favor of foreigners and against the natives could
not have been intended. It could not have been the purpose of
Congress to give the Commission ample power to legislate for the
benefit of foreigners and to limit its power to legislate for the
benefit of natives.
The meaning of these sections is not clear, and it is difficult to give
to them a construction that will be entirely free from objection. But
we do not think that authority given by the Commission to issue to
a native a patent for 16 hectares of land of which he was in
possession during the month of August, 1898, was intended to limit
the general power of control which by section 12 is given to the
Commission.
The judgment of the court below is affirmed, with the costs of this
instance the appellant. After the expiration of twenty days let final
judgment be entered in accordance herewith and ten days thereafter
let the cause be remanded to the lower court for proper procedure.
So ordered.
Arellano, C.J., Torres, Mapa, Johnson and Tracey, JJ., concur.

The Lawphil Project - Arellano Law Foundation

This case comes from the Court of Land Registration. The petitioner
sought to have registered a tract of land of about 16 hectares in extent,
situated in the barrio of San Antonio, in the district of Mandurriao, in
the municipality of Iloilo. Judgment was rendered in favor of the
petitioner and the Government has appealed. A motion for a new trial
was made and denied in the court below, but no exception was taken
to the order denying it, and we therefore can not review the evidence.
The decision of that court was based upon Act No. 926 section 54,
paragraph 6 which follows:

Republic of the Philippines


SUPREME COURT
Manila
EN BANC
G.R. No. L-3793

February 19, 1908

CIRILO MAPA, petitioner-appellee,


vs.
THE INSULAR GOVERNMENT, respondent-appellant.
Attorney-General Araneta for appellant.
Basilio R. Mapa for appellee.
WILLARD, J.:

All persons who by themselves or their predecessors in interest


have been in the open, continuous exclusive, and notorious
possession and occupation of agricultural public lands, as
defined by said act of Congress of July first, nineteen hundred
and two, under a bona fide claim of ownership except as
against the Government, for a period of ten years next
preceding the taking effect of this act, except when prevented
by war, or force majeure, shall be conclusively presumed to
have performed all the conditions essential to a Government
grant and to have received the same, and shall be entitled to a
certificate of title to such land under the provisions of this
chapter.
The only question submitted to the court below or to this court by the
Attorney-General is the question whether the land in controversy is
agricultural land within the meaning of the section above quoted. The
findings of the court below upon that point are as follows:
From the evidence adduced it appears that the land in question
is lowland, and has been uninterruptedly, for more than twenty
years, in the possession of the petitioner and his ancestors as
owners and the same has been used during the said period, and
up to the present, as fish ponds, nipa lands, and salt deposits.

The witnesses declare that the land is far from the sea, the town
of Molo being between the sea and the said land.
The question is an important one because the phrase "agricultural
public lands" as defined by said act of Congress of July 1, is found not
only in section 54 above quoted but in other parts of Act No. 926, and
it seems that the same construction must be given to the phrase
wherever it occurs in any part of that law.
The claim of the Attorney-General seems to be that no lands can be
called agricultural lands unless they are such by their nature. If the
contention of the Attorney-General is correct, and this land because of
its nature is not agricultural land, it is difficult to see how it could be
disposed of or what the Government could do with it if it should be
decided that the Government is the owner thereof. It could not allow
the land to be entered as a homestead, for Chapter I of Act No. 926
allows the entry of homesteads only upon "agricultural public lands"
in the Philippine Islands, as defined by the act of Congress of July 1,
1902. It could not sell it in accordance with the provisions of Chapter
II of Act No. 926 for section 10 only authorizes the sale of
"unreserved nonmineral agricultural public land in the Philippine
Islands, as defined in the act of Congress of July first, nineteen
hundred and two." It could not lease it in accordance with the
provisions of Chapter III of the said act, for section 22 relating to
leases limits them to "nonmineral public lands, as defined by section
eighteen and twenty of the act of Congress approved July first,
nineteen hundred and two." It may be noted in passing that there is
perhaps some typographical or other error in this reference to sections
18 and 20, because neither one of these sections mentions agricultural
lands. The Government could not give a free patent to this land to a
native settler, in accordance with the provisions of Chapter IV, for that
relates only to "agricultural public land, as defined by act of Congress
of July first, nineteen hundred and two."

In fact, by virtue of the provisions of Act No. 926, the Government


could do nothing with this land except to lay out a town site thereon in
accordance with the provisions of Chapter V, for section 36 relating to
that matter, says nothing about agricultural land.
The question before us is not what is agricultural land, but what
definition has been given to that phrase by the act of Congress. An
examination of that act will show that the only sections thereof
wherein can be found anything which could be called a definition of
the phrase are sections 13 and 15. Those sections are as follows:
SEC. 13. That the Government of the Philippine Islands,
subject to the provisions of this act and except as herein
provided, shall classify according to its agricultural character
and productiveness, and shall immediately make rules and
regulations for the lease, sale, or other disposition of the public
lands other than timber or mineral lands, but such rules and
regulations shall not go into effect of have the force of law
until they have received the approval of the President, and
when approved by the President they shall be submitted by him
to Congress at the beginning of the next ensuing session
thereof and unless disapproved or amended by Congress at said
session they shall at the close of such period have the force and
effect of law in the Philippine Islands: Provided, That a single
homestead entry shall not exceed sixteen hectares in extent.
SEC. 15. That the Government of the Philippine Islands is
hereby authorized and empowered on such terms as it may
prescribe, by general legislation, to provide for the granting or
sale and conveyance to actual occupants and settlers and other
citizens of said Islands such parts and portions of the public
domain, other than timber and mineral lands, of the United
States in said Islands as it may deem wise, not exceeding
sixteen hectares to any one person and for the sale and
conveyance of not more than one thousand and twenty-four

hectares to any corporation or association of persons: Provided,


that the grant or sale of such lands, whether the purchase price
be paid at once or in partial payments shall be conditioned
upon actual and continued occupancy, improvement, and
cultivation of the premises sold for a period of not less than
five years, during which time the purchaser or grantee can not
alienate or encumber said land or the title thereto; but such
restriction shall not apply to transfers of rights and title of
inheritance under the laws for the distribution of the estates of
decedents.
It is seen that neither one of these sections gives any express
definition of the phrase "agricultural land." In fact, in section 15 the
word "agricultural" does not occur.
There seem to be only three possible ways of deciding this question.
The first is to say that no definition of the phrase "agricultural land"
can be found in the act of Congress; the second, that there is a
definition of that phrase in the act and that it means land which in its
nature is agricultural; and, third, that there is a definition in the act
and that the phrase means all of the public lands acquired from Spain
except those which are mineral or timber lands. The court below
adopted this view, and held that the land, not being timber or mineral
land, came within the definition of agricultural land, and that therefore
Section 54 paragraph 6, Act No. 926 was applicable thereto.
1. There are serious objections to holding that there is no definition in
the act of the phrase "agricultural land." The Commission in enacting
Act No. 926 expressly declared that such a definition could be found
therein. The President approved this act and it might be said that
Congress, by failing to reject or amend it, tacitly approved it.
Moreover, if it should be said that there is no definition in the act of
Congress of the phrase "agricultural land," we do not see how any
effect could be given to the provisions of Act No. 916, to which we
have referred. If the phrase is not defined in the act of Congress, then

the lands upon which homesteads can be granted can not be


determined. Nor can it be known what land the Government has the
right to sell in accordance with the provisions of Chapter II, nor what
lands it can lease in accordance with the provisions of Chapter III, nor
the lands for which it can give free patents to native settlers in
accordance with the provisions of Chapter IV, and it would seem to
follow, necessarily, that none of those chapters could be put into force
and that all that had up to this time been done by virtue thereof would
be void.
2. The second way of disposing of the question is by saying that
Congress has defined agricultural lands as those lands which are, as
the Attorney-General says, by their nature agricultural. As has been
said before, the word "agricultural" does not occur in section 15.
Section 13 says that the Government "shall classify according to its
agricultural character and productiveness and shall immediately make
rules and regulations for the lease, sale, or other disposition of the
public lands other than timber or mineral land." This is the same thing
as saying that the Government shall classify the public lands other
than timber or mineral lands according to its agricultural character and
productiveness; in other words, that it shall classify all the public
lands acquired from Spain, and that this classification shall be made
according to the agricultural character of the land and according to its
productiveness.
One objection to adopting this view is that it is so vague and
indefinite that it would be very difficult to apply it in practice. What
lands are agricultural in nature? The Attorney-General himself in his
brief in this case says:
The most arid mountain and the poorest soil are susceptible of
cultivation by the hand of man.
The land in question in this case, which is used as a fishery, could be
filled up and any kind of crops raised thereon. Mineral and timber

lands are expressly excluded, but it would be difficult to say that any
other particular tract of land was not agricultural in nature. Such lands
may be found within the limits of any city. There is within the city of
Manila, and within a thickly inhabited part thereof an experimental
far. This land is in its nature agricultural. Adjoining the Luneta, in the
same city, is a large tract of land, Camp Wallace, devoted to sports.
The land surrounding the city walls of Manila, between them and the
Malecon Drive on the west, the Luneta on the south, and Bagumbayan
Drive on the south and east, is of many hectares in extent and is in
nature agricultural. The Luneta itself could at any time be devoted to
the growing of crops.
The objection to adopting this construction on account of its
uncertainty is emphasized when we consider that whether certain land
was or was not agricultural land, as defined by the act of Congress,
and therefore subject to homestead entry, to sale, or to lease in
accordance with the provisions of Act No. 926, would be a question
that would finally have to be determined by the courts, unless there is
some express provision of the law authorizing the administrative
officers to determine this question for themselves. Section 2 of Act
No. 926 relating to homesteads provides that the Chief of The Bureau
of Public Lands shall summarily determine whether the land
described is prima facie under the law subject to homestead
settlement. Section 13, relating to the sale of public lands, provides
simply that the Chief of the Bureau of Public Lands shall determine
from the certificate of the Chief of the Bureau of Forestry whether the
land applied for is more valuable for agricultural than for timber
purposes, but it says nothing about his decisions as to whether it is or
is not agricultural land in its nature. Section 26 relating to the lease of
public lands provides that the Chief of the Bureau of Public Lands
shall determine from the certificate of the Chief of the Bureau of
Forestry whether the land applied for is more valuable for agricultural
than for timber purposes and further summarily determine from
available records whether the land is or is not mineral and does not
contain deposits of coal or salts. Section 34 relating to fee patents to

native settlers makes no provision for any determination by the Chief


of Bureau of Public Lands in regard to the character of the land
applied for.
After homesteads have been entered, lands, sold, and leases made by
the administrative officers on the theory that the lands were
agricultural lands by their nature, to leave the matter of their true
character open for subsequent action by the courts would be to
produce an evil that should if possible be avoided.
3. We hold that there is to be found in the act of Congress a definition
of the phrase "agricultural public lands," and after a careful
consideration of the question we are satisfied that the only definition
which exists in said act is the definition adopted by the court below.
Section 13 says that the Government shall "Make rules and
regulations for the lease, sale, or other disposition of the public lands
other than timber or mineral lands." To our minds, that is the only
definition that can be said to be given to acricultural lands. In other
words, that the phrase "agricultural land" as used in Act No. 926
means those public lands acquired from Spain which are not timber or
mineral lands. As was said in the case of Jones vs. The Insular
Government (6 Phil Rep., 122, 133) where these same section of the
act of Congress were under discussion:
The meaning of these sections is not clear and it is difficult to
give to them a construction that would be entirely free from
objection.
But the construction we have adopted, to our minds, is less
objectionable than any other one that has been suggested.
There is nothing in this case of Jones vs. The Insular Government
which at all conflicts with the result here arrived at. The question as to
whether the lands there involved were or were not agricultural lands
within the meaning of the sections was neither discussed nor decided.

In fact, it appears from the decision that those lands, which were in
the Province of Benguet, were within the strictest definition of the
phrase "agricultural lands." It appears that such lands had been
cultivated for more than twelve years. What that case decided was, not
that the lands therein involved and other lands referred to in the
decision by way of illustration were not agricultural lands but that the
law there in question and the other laws mentioned therein were not
rules and regulations within the meaning of section 13.
The judgment of the court below is affirmed, with the costs of this
instance against the appellant. So ordered.
Arellano, C.J., and Torres, J., concur.
Johnson, J., concurs in the result.

Separate Opinions
TRACEY, J., concurring:
By its title as well as throughout its text Act No. 926 is restricted to
the "Public domain of the Philippine Islands" and to "public lands" in
said Islands. This act, drawn in furtherance of an act of Congress,
must be interpreted according to the American understanding of the
words employed and the meaning of these terms as definitely fixed by
decisions of the United States Supreme Court.
"Public domain" and "public lands" are equivalent terms. (Barker vs.
Harvey, 181, U.S., 481, 490.
The words "public lands" are habitually used in our legislation
to describe such as are subject to sale or other disposal under
general laws. (Newhall vs. Sanger, 92 U.S., 761)

A grant of public lands applies only to lands which at the time


are free from existing claims. (Bardon vs. Northern Pacific
R.R. Co., 145 U.S., 535, 543.)
These words do not include land reserved for the use of certain Indian
tribes, although still the property of the United States (Leavenworth,
etc., vs. United States, 92 U.S., 733), nor lands covered and uncovered
by the ebb and flow of the tide. (Mann vs. Tacoma Land Co., 153
U.S., 273.) And the same was held of the words "unoccupied and
unappropriated public lands." (Shively vs. Bowlby, 152 U.S., 1.)
In Wilcox vs. Jackson (13 Peters, 498, 513) it was held that whenever
a tract of land has been legally appropriated to any purpose, from that
moment it becomes severed from the mass of public lands and no
subsequent law will be construed to embrace it, although no express
reservation is made. There have been similar rulings in regard to
reservations for military purposes, for town sites, educational
purposes, and for mineral and forest uses. Consequently Act No. 926
applies only to the lands of the United States in these Islands not
already devoted to public use or subject to private right, and this
construction necessarily excludes from its scope lands devoted to the
use of municipalities, including public buildings and such tracts as
Wallace Field and the strip surrounding the walls of the City of
Manila. As the act has no application to them, they are not public
lands in this sense, and can not be included within the term
"agricultural public lands."
In referring to agricultural lands as being defined in the act of
Congress of July 1, 1902, the Philippine Commission must have had
in mind this well-settled meaning of the terms employed and have
used the word "agricultural" to distinguish and include such public
lands, not otherwise appropriated as, were not devoted to forestry and
mining which is consistent with the direction of section 13 of the act
of Congress that public lands, other than timber or mineral lands,

should be classified according to their agricultural character and


productiveness.

Francisco, Lualhati and Lopez for appellant.


Attorney-General Jaranilla for appellee.

In view of the restricted scope of these statutes under the decisions of


the United States Supreme Court, this direction as to the classification
of all remaining lands not forest or mineral in character, "according to
their agricultural nature and productiveness," may fairly be considered
a definition of them as agricultural lands, with the result of freeing the
act of the Commission from ambiguity.

JOHNSON, J.:

It was apparently the intention of Congress that such classification, in


a general way, should be immediately made, but the fact that it has
been delayed does not prevent the designation of any particular parcel
of land, upon being granted by the Government, as coming under one
of these heads.
For these reason, I concur in the interpretation put upon this act in the
majority opinion.
Carson, J., concurs.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-25010

October 27, 1926

THE GOVERNMENT OF THE PHILIPPINE


ISLANDS, plaintiff-appellee,
vs.
PAULINO ABELLA, ET AL., claimants;
MARIA DEL ROSARIO, petitioner-appellant.

This is a petition for the registration of a certain parcel or tract of land


located in the municipality of San Jose, Province of Nueva Ecija,
Philippine Islands. It appears from the record that on the 21st day of
September, 1915, the appellant Maria del Rosario presented a petition
in the Court of First Instance for the registration under the Torrens
system, of the very land now in question by virtue of her appeal. In
that case, after issue joined and after hearing the evidence, the
Honorable Vicente Nepomuceno, judge, denied the registration of all
of the northern portion of the land included in her petition represented
by Exhibit 1, which was the plan presented in that action, upon the
ground that said portion was more valuable for timber purposes than
for agricultural purposes. From that judgment Maria del Rosario
appealed.
The Supreme Court after a consideration of the evidence affirmed the
decision of the lower court. In the course of that decision the Supreme
Court, speaking through Mr. Justice Moir, said: "We have examined
the plans and all the evidence presented in this case and are of the
opinion that the trial court was correct in its declaration that this send
a did not mean the old road to Bogabon. The fact that nearly all the
northern property is forestry land is a further indication that the
applicant's possessory information title did not include the land
running up to the road to Bongabon, because all the papers which the
applicant has regarding this property call the land palayero." 1

Judge Nepomuceno in his decision directed that the appellant herein


present an amended plan in that case, showing the particular part or
parcel of the land in question which she was entitled to have
registered. We have no evidence before us showing that order of
Judge Nepomuceno was ever complied with.
Nothing further seems to have occurred with reference to the
registration of the land included in the former case until the 26th day
of April, 1921, when the Acting Director of Lands presented the
petition in the present case for the registration, under the cadastral
survey, of a portion of land located in the municipality of San Jose,
which included the very land claimed by Maria del Rosario in the
former action. She presented her opposition in the present action,
claiming the very land which she claimed in the former action. The
only proof which she presented in support of her claim in the present
action was the proof which she had presented in the former action. No
proof was adduced in addition thereto, which in the slightest degree
showed that she was entitled to the registration of any other parcel of
land than those which had been conceded to her in the first action.
Upon the issue and the proof adduced in the present case the
Honorable C. Carballo, Auxiliary Judge of the Sixth Judicial District,
ordered registered in the name of Maria del Rosario, under the
cadastral survey, lots 3238, 3240, 3242 and 3243, which are the very
lots which had been ordered registered in her name in the former
action. From that judgment she appealed to this court upon the ground
that the lower court committed an error in not registering all of the
land included in her opposition in her name.
1awph!l.net

In this court she presented a motion for rehearing and in support


thereof presents some proof to show that the northern portion of the

land in question is not forestry land but that much of it is agricultural


land. With reference to said motion for rehearing, it may be said that
all of the proof which is presented in support thereof existed at the
time of the trial and might, with reasonable diligence, have been
presented. It cannot, therefore, be considered now. It is not newly
discovered evidence. And moreover if it should be accepted it would
not be sufficient to justify the granting of a new trial.
After a careful examination of the entire record and the evidence
adduced during the trial of this cause as well as that adduced during
the trial of the first cause, we are fully persuaded that no error has
been committed. Whether particular land is more valuable for forestry
purposes than for agricultural purposes, or vice-versa, is a question of
fact and must be established during the trial of the cause. Whether the
particular land is agricultural, forestry, or mineral is a question to be
settled in each particular case, unless the Bureau of Forestry has,
under the authority conferred upon it, prior to the intervention of
private interest, set aside for forestry or mineral purposes the
particular land in question. (Ankron vs. Government of the Philippine
Islands, 40 Phil., 10.) During the trial of the present cause the
appellant made no effort to show that the land which she claimed,
outside of that which had been decreed in her favor, was more
valuable for agricultural than forestry purposes. For all of the
foregoing, the judgment appealed from is hereby affirmed, with costs.
So ordered.
Avancea, C. J., Street, Villamor, Ostrand, Johns, Romualdez and
Villa-Real, JJ., concur.

Footnotes

Del Rosario vs. Director of Lands, R. G. No. 13226,


promulgated January 27, 1919, not reported.
1

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