HISTORY & GENERAL CONSIDERATIONS
Indian savages. Nature of the Indian title, as subordinate to the
#1
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
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,
Page 21 U. S. 544
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
Page 21 U. S. 545
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
Page 21 U. S. 546
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 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
Page 21 U. S. 547
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.
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,
Page 21 U. S. 548
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
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.
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
Page 21 U. S. 550
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.
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
Page 21 U. S. 551
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
Page 21 U. S. 552
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
Page 21 U. S. 553
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
Page 21 U. S. 554
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.
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
Page 21 U. S. 555
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
Page 21 U. S. 556
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 tenures they might most legally hold, all those
two several tracts of land in the deed particularly described situate,
lying,
brk:
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
Page 21 U. S. 557
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.
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
Page 21 U. S. 558
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.
Page 21 U. S. 559
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
Page 21 U. S. 560
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
Page 21 U. S. 561
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
Page 21 U. S. 562
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.
Page 21 U. S. 571
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
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
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.
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.
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.
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.
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 all show that she placed in on the rights
given by discovery. Portugal sustained her claim to the Brazils by the
same title.
France also founded her title to the vast territories she claimed in
America on discovery. However
Page 21 U. S. 575
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.
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.
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
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.
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
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 of quo 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.
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
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.
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. 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, 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
Page 21 U. S. 581
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.
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
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
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.
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
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
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 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. 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
"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."
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.
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.
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
Page 21 U. S. 588
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.
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
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.
When the conquest is complete and the conquered inhabitants can be
blended with the conquerors
Page 21 U. S. 590
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
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.
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
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.
Another view has been taken of this question
Page 21 U. S. 593
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
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 of Campbell v. Hall, reported
by Cowper, is relied on to support this position.
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.
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
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
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
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.
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 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.
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
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.
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.
The charter to Rhode Island recites
"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
"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.
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
Page 21 U. S. 603
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.
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.
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.
Page 21 U. S. 604
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
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.

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 #2
sole purpose of preventing the trespasses of neighbors, who were
disposed to claim some authority over them. The King, being willing U.S. Supreme Court
himself to ratify and confirm their title was, of course, inclined to
quiet them in their possession. Chavez v. United States, 175 U.S. 552 (1899)

This charter and this letter certainly sanction a previous unauthorized Chavez v. United States
purchase from Indians under the circumstances attending that
particular purchase, but are far from supporting the general No. 14
proposition, that a title acquired from the Indians would be valid
against a title acquired from the Crown, or without the confirmation Argued October 17-18, 1899
of the Crown.
Decided December 22, 1899
The acts of the several colonial assemblies prohibiting purchases
from the Indians have also been relied on as proving that, 175 U.S. 552
independent of such prohibitions, Indian deeds would be valid. But
we think this fact, at most, equivocal. While the existence of such APPEAL FROM THE COURT
purchases would justify their prohibition, even by colonies which
considered Indian deeds as previously invalid, the fact that such acts OF PRIVATE LAND CLAIMS
have been generally passed, is strong evidence of the general
opinion, that such purchases are opposed by the soundest principles Syllabus
of wisdom and national policy.
In Mexico, in 1831, a departmental assembly or territorial deputation
had no power or authority to make a grant of lands, and the fact that
the governor presided at a meeting of the territorial deputation at the
time such a grant was made, makes no difference, as the power to
make the grant was exclusively in the governor, and the territorial
deputation had no jurisdiction in the matter.
The statement of the case will be found in the opinion of the Court.
MR. JUSTICE PECKHAM delivered the opinion of the Court.
This is an appeal from a judgment of the Court of Private Land
Claims refusing to confirm the title of the appellant to
Page 175 U. S. 553
some 5,000 acres of land in New Mexico, about one league from the
Manzano grant. The title is evidenced by a grant by the territorial
deputation of New Mexico, made in 1831, and the first question in
the case relates to the authority of that body to make the grant.
It is also contended that if the territorial deputation did not have the
power to make the grant, and that power rested with the governor of
the department, his presence in the territorial deputation as its ex
officio president when the grant was made, and, so far as the record
shows, his not protesting but acquiescing in its action, was
equivalent to and the same as a grant made by himself in his official
character as governor.
It is further stated that, by reason of the action of the governor in
writing the letter dated December 22, 1831, and hereinafter set forth,
that officer ratified and confirmed the grant, and in effect made it his
own.
It appears from the record that, on February 28, 1831, citizen Nerio
Antonio Montoya petitioned the honorable corporation of Tome, and
asked it that it would append to his petition its own report to the most
excellent deputation, so that that body should grant him the land
described in the petition. The corporation of Tome, on the 19th of
March, 1831, granted the prayer of the petitioner, and adopted a
resolution which provided that his petition should
"go before the most excellent territorial deputation, which, as the
authority competent, may accede to the donation of the land prayed
for by the said petitioner without injuring the pastures and watering
places for the passers-by."
The resolution was accordingly forwarded to the territorial
deputation, and that body on November 12, 1831, took action as
follows:
"(Extract from record of proceedings of the territorial deputation,"
"session of November 12, 1831)"
"The foregoing record having been read and approved, a petition of
citizen Nerio Montoya, a resident of Valencia, in which he asks for
the donation, for agricultural purposes, of a tract of vacant land in the
Manzano within the limits of the Ojo de en Medio as far as the
rancheria, was taken up and the
Page 175 U. S. 554
report of the respectable corporation council of Tome, in which it is
set forth that there is no objection to the concession of the said land,
having been heard it was ordered that it be granted."
"* * * *"
"The session was adjourned."
"Santiago Abreu, President (Rubrick)"
"Juan Rafael Ortiz (Rubrick)"
"Anto. Jose Martinez (Rubrick)"
"Jose Manl. Salazar (Rubrick)"
"Teodosio Quintana (Rubrick)"
"Ramon Abreu, Secretary (Rubrick)"
In accordance with this action, the following direction by the
deputation, signed by its secretary, was given the alcalde of the
proper jurisdiction:
"Santa Fe, November 12, 1831"
"The honorable the deputation of this territory, having received the
report of the constitutional council of Tome, appended to this
petition, has resolved in this day's session to grant the land prayed for
by the petitioner, charging the alcalde of said jurisdiction to execute
the document that will secure the grantee in the grant hereby made to
him."
"Abreu, Secretary"
The alcalde thereupon executed a document which, after reciting
that,
"In obedience to the decree of the most excellent deputation of this
territory made under date of November 12 of the current year on the
margin of the petition which, under date of February 28, the citizen
Nerio Antonio Montoya, resident of this said jurisdiction, presented
to this honorable council, and on which petition is recorded the
report made by this council, in accordance with which report its
excellency has deemed it proper to accede to the petition of
Montoya, granting him full and formal possession of the tract he
prayed for,"
etc., declared that
"Montoya, whenever he may choose or think best to do, may notify
me to proceed with him to the locality to place him in possession of
the property
Page 175 U. S. 555
granted him, with all the customary formality,"
etc. This was dated December 7, 1831, and signed by the alcalde.
On December 12 in the same year, the same alcalde,
"in compliance with the provision made by this most excellent
deputation of this territory and the notification given me by the
citizen Nerio Antonio Montoya,"
proceeded with Montoya to the tract of land granted him and placed
him in possession thereof, the act being signed by the alcalde.
There was also put in evidence on the trial of the action in the court
below, on the question of ratification, the following:
"Office of the Political Chief of New Mexico"
"By your official communication of the 20th instant, I am advised of
your having executed the decree of the most excellent deputation
granting to the citizen Nerio Antonio Montoya a tract of land."
"But in regard to the inquiry you make of me, as to how much your
fee should be, I inform you that I am ignorant in the premises, and
that you may, if you choose to do, put the question to the assessor
(asesor), who is the officer to whom it belongs, to advise the justices
of first instance in such cases."
"God and Liberty. Santa Fe, December 22, 1831."
"Jose Antonio Chavez"
"To Alderman Miguel Olona"
Various mesne conveyances were put in evidence on the trial,
showing the transfer to the appellant of whatever title Montoya had
to the land described, and it was then admitted that the appellant
herein has succeeded to all the rights of the original grantee, if any,
in this case. Evidence of possession under this grant was also given.
The court below held that the departmental assembly or territorial
deputation had no power or authority to make a grant of lands at the
time the grant in this case was attempted to be made, and that the fact
that the governor may have presided at the meeting at the time the
action was taken made no difference, as the power to make the
Page 175 U. S. 556
grant was exclusively in the governor, and the territorial deputation
had no jurisdiction in the matter. The claim was therefore rejected.
We think that in thus deciding, the court below was right.
We refer to some of the cases which show the territorial deputation
did not have the power to make a grant, but only the power to
subsequently approve it.
In United States v. Vallejo, 1 Black 541, it was held that the Mexican
law of 1824 and the regulations of 1828 altered and repealed the
Spanish system of disposing of public lands, and that the law and the
regulations from the time of their passage were the only laws of
Mexico on the subject of granting public lands in the territories. It
was also held that the governor did not possess any power to make
grants public lands independently of that conferred by the act of
1824 and the regulations of 1828. Mr. Justice Nelson, who delivered
the opinion of the Court in that case, refers to the various sections of
the law of 1824, and also to the regulations of November, 1828, for
the purpose of showing that the governors of the territories were
authorized to grant vacant lands within their respective territories
with the object of cultivation or settlement, and that the grants made
by them to individuals or families were not to be definitively valid
without the previous consent of the departmental assembly, and when
the grant petitioned for had been definitively made a patent, signed
by the governor, was to be issued, which was to serve as a title to the
party. This case did not decide that the territorial deputation could
not make a valid grant, because the grant was made by the governor,
but the various extracts from the law and regulations indicate very
plainly that the authority to initiate a grant of public lands existed in
the governor alone, and not in the assembly.
In United States v. Vigil, 13 Wall. 449, it was held that departmental
assemblies (territorial deputations) had no power to make a grant.
In his argument at the bar, counsel for this appellant contended that
the territorial deputation had lawful power and
Page 175 U. S. 557
authority to make the grant to Montoya, and in order to maintain that
proposition, stated that it was necessary to discuss the effect of the
decision of this Court in United States v. Vigil. He claimed that what
was said as to the lack of power in the territorial deputation to make
a grant was not necessary to the decision of the Court in that case,
and that such expressions as were therein used regarding the question
would not therefore constitute a precedent now binding on this
Court.
In Vigil's case, there was a petition to the departmental assembly,
through the Governor of New Mexico, asking for a grant of land
which in fact amounted to over two million, the grantees binding
themselves, if the grant were made, to construct two wells for the
relief and aid of travelers, and to establish two factories for the use of
the state, and to protect them from hostile invasion. The governor
transmitted the petition to the assembly, but declined to recommend
that favorable action should be taken upon it. The assembly,
notwithstanding this refusal, granted the tract on January 10, 1846,
for the purpose of constructing wells and cultivating the land, etc.,
and the question was as to the validity of this grant.
The opinion was delivered by Mr. Justice Davis, who stated that it
had been repeatedly decided by this Court that the only laws in force
in the territories of Mexico, for the disposition of public lands, with
the exception of those relating to missions and towns, were the act of
the Mexican Congress of 1824 and the regulations of 1828. In the
course of his opinion, he said:
"These regulations conferred on the governors of the territories, 'the
political chiefs,' as they are called, the authority to grant vacant
lands, and did not delegate it to the departmental assembly. It is true
the grant was not complete until the approval of the assembly, and in
this sense the assembly and governor acted concurrently, but the
initiative must be taken by the governor. He was required to act in
the first instance -- to decide whether the petitioner was a fit person
to receive the grant, and whether the land itself could be granted
without prejudice to the public or individuals. In case the
Page 175 U. S. 558
information was satisfactory on these points, he was authorized to
make the grant, and at the proper time to lay it before the assembly,
who were required to give or withhold their consent. They were in
this respect an advisory body to the governor, and sustained the same
relation to him that the Senate of the United States does to the
President in the matter of appointments and treaties."
A subsequent portion of the opinion dealt with the case upon the
assumption that the grant had been made by the governor, and even
in that case it was said the grant would have been invalid because it
violated the fundamental rule on which the right of donation was
placed by the law; that the essential element of colonization was
wanting, and that the number of acres granted was enormously in
excess of the maximum quantity grantable under the law. This in
nowise affected the prior ground upon which the opinion was based,
that the departmental assembly had no power to make the grant. That
was the essential and material question directly involved in the case,
while the second ground mentioned was based upon an assumption
that, even if the governor had made the grant, it would still have been
void for the reason stated. The court did not base its decision that the
departmental assembly had no power to make the grant because of its
enormous extent. It held that the assembly had no power to make any
grant, no matter what its size. It is, as we think, a decision covering
this case.
In Hayes v. United States, 170 U. S. 637, the grant was by the
territorial deputation of New Mexico, and it was stated by MR.
JUSTICE WHITE, speaking for the Court, that
"it cannot be in reason held that a title to land derived from a
territory which the territorial authorities did not own, over which
they had no power of disposition, was regularly derived from either
Spain or Mexico or a State of the Mexican nation."
No presumption that the territorial deputations had authority to make
grants can arise from the fact that in some instances those bodies
assumed to make them. The case in this respect bears no resemblance
to United States v. Percheman, 7 Pet. 51, 32 U. S. 96, or to United
States v. Clarke, 8 Pet. 436, 33 U. S. 447, 33 U. S. 453. In those
cases, it was not denied that the governor had authority in
Page 175 U. S. 559
some circumstances to make grants, and it was therefore held that a
grant made by him was prima facie evidence that he had not
exceeded his power in making it, and that he who denied it took
upon himself the burden of showing that the officer by making the
grant had transcended the power reposed in him. There is in the case
before us no evidence that the territorial deputation had the power, in
any event, to make grants other than the fact that in some instances it
assumed to make them.
The cases heretofore decided in this Court, and some of which have
been above referred to, show that such fact is inadequate to prove the
existence of the authority.
It is, however, urged that the record of the action of the territorial
deputation in regard to this grant shows that the governor and ex
officio president of the deputation was present when the deputation
decided to make the grant as petitioned for, and that his being so
present and attesting the action of the deputation was equivalent to
the making of the grant himself as governor. We do not think so. He
did not assume to make any grant whatever, and certainly none in his
character as governor. It does not even appear beyond doubt that he
was present when the deputation made the grant. His signature is
perfectly consistent with a mere authentication of the previous action
of that body.
The petition of Montoya was addressed primarily to the corporation
of Tome, and he requested that corporation to send his petition,
approved by it, to the deputation to make him a grant of the land
described in his petition. Acting under that request, the corporation
of Tome sent his petition to the "most excellent territorial
deputation," and asked that body to accede to the donation of the
land prayed for. In conformity to the petition, the territorial
deputation itself made the grant. The fact that the governor, being ex
officio a member of the deputation, signed as president of that body
the record of the act of the deputation is not the equivalent of a grant
by him in his official character of governor, nor does such act bear
any resemblance to a grant by him. No one on reading the record
would get the idea that the governor
Page 175 U. S. 560
was himself making the grant, or that he thereby intended so to do. It
does not even show that he was in favor of the grant as made by the
deputation. His signing the record constituted nothing more than an
authentication of the act of the deputation. It purported to be nothing
else. He might have properly signed the record if in fact he had voted
against the grant, and had been opposed to the action of the
assembly. He might have signed the record as an authentication, and
yet have been absent at the time of the action of the assembly. In any
event, it was his signature as an ex officio member or presiding
officer of the deputation, attesting or perhaps assenting to its action,
and it was not his action as governor making a grant in that capacity.
The signature by the secretary alone, to the instrument (above set
forth, dated November 12, 1831) which recites the previous action of
the deputation, and charges the alcalde of the jurisdiction to execute
the document which will secure the grantee in the grant, is simply a
direction to the alcalde, and has no materiality upon this branch of
the case other than as confirming the view that the grant was solely
that of the deputation.
We cannot hold that, when the power was given under the laws of
Mexico to the governor to make grants of lands, he in any manner
exercised that power, or performed an act equivalent to its exercise,
by presiding ex officio at a meeting of the territorial deputation which
made a grant of lands in conformity to a petition solely addressed to
it and by authenticating as president the action of the deputation in
deciding that the grant should be made.
The two positions, president of the deputation and governor, are
separate and distinct, and the action of a governor merely as
president of the deputation, and of the nature above described is not
in any sense and does not purport to be his separate and independent
action as governor, making a grant of lands pursuant to a petition
addressed to him officially. As governor, he might refuse the grant
upon a petition addressed to himself, when as president of the
deputation he might sign the record authenticating its action in
regard to a petition
Page 175 U. S. 561
addressed solely to that body. And it is obvious from the wording of
the record that the president of the deputation was not assuming to
act as governor upon a petition addressed to himself, but only as the
president of the deputation. It might have been that he acquiesced in
the assumption by the deputation of the right to make the grant, but
his act of signing the record cannot be tortured into a grant or as the
equivalent of a grant by himself.
It is further urged that there has been what amounts to a grant by the
governor by reason of his letter of December 22, 1831, signed by
him and above set forth, thus, as is claimed, ratifying the grant of the
deputation and making it his own.
The only evidence that the person who signed the letter was the
governor at that time is the heading of the letter, "Office of the
Political Chief of New Mexico." It will be also noted that the person
signing it is not the same one who signed the record of November
12, 1831, as president of the deputation. But, assuming that Chavez
was governor in December, 1831, when he signed the letter, he
therein simply acknowledged the receipt of the official
communication of the alcalde, in which that officer reports that he
had executed the decree "of the most excellent deputation, granting
to the citizen Nerio Antonio Montoya a tract of land." In reply to the
question as to how much the alcalde's fee should be, he answered
that he was ignorant of the premises, and advised the alcalde to put
the question to the assessor, the officer to whom it belonged to advise
the justices in the first instances in such cases.
Now what does the governor ratify by this letter? Nothing.
The contention in favor of the grant, based upon the letter, is that,
assuming the governor had power to make the grant, it was his duty
when he learned from the report of the alcalde that one had been
made by the deputation, and that possession had been delivered
under it, to protest against and to deny the power of the deputation to
make such grant, and unless he did so, his silence was evidence of
the fact that he not only approved the act of the deputation in making
the grant, but that he approved it as his own, and that such
Page 175 U. S. 562
approval was the same as if the governor had himself made the grant,
and in substance and effect it was his grant.
This contention, we think, is not founded upon any legal principle,
and is in itself unreasonable. The writer of the letter is not the same
person who signed the record of the proceedings of the deputation.
The report of the alcalde gave him the information which, it is true,
he may have had before, that the deputation had assumed the power
to grant the land. His protest as to the legality of such action would
not have altered the fact that it had occurred, while, on the other
hand, his silence might simply be construed as evidence of his
unreadiness at that time to dispute, or possibly of his belief in the
validity of the action of the deputation. Or his silence might have
been simply the result of his approval of the act of the alcalde in
obeying the commands of the deputation, while he thought it was not
the proper occasion upon which to contest or deny the validity of the
grant which the deputation had actually made. Many reasons for his
silence might be suggested, but the claim that it equaled in law a
positive grant by the governor is, as we think, untenable.
While such silence is entirely consistent with other views that might
have been held by the governor, it certainly cannot properly be
ascribed, as a legal inference from the facts stated, to his desire to
make the grant himself, nor could it be said that his desire (if he had
it) was the legal equivalent of an actual grant.
His knowledge that another body had assumed to make a grant is not
equivalent to the making of the grant himself, and he was the person
who alone had power to make it. There is nothing in the letter which
aids the plaintiff herein.
Finally, it distinctly appears that the possession of the parties is
insufficient in length of time to prove a valid title. In United States v.
Chaves, 159 U. S. 452, the possession was under the claim of a grant
made by the governor of New Mexico to the alleged grantees. The
grant had been lost, but it had been seen and read by witnesses, and
its existence had been proved by evidence sufficient, as was stated in
the opinion
Page 175 U. S. 563
(page 159 U. S. 460), to warrant
"the finding of the court below that the complainants' title was
derived from the Republic of Mexico, and was complete and perfect
at the date when the United States acquired sovereignty in the
Territory of New Mexico, within which the land was situated."
We do not question the correctness of the remarks made by MR.
JUSTICE SHIRAS in regard to evidence of possession and the
presumptions which may under certain circumstances be drawn as to
the existence of a grant.
We do not deny the right or the duty of a court to presume its
existence in a proper case, in order to quiet a title and to give to long
continued possession the quality of a rightful possession under a
legal title. We recognize and enforce such rule in the case of United
States v. Chavez, decided at this term, in which the question is
involved. We simply say in this case that the possession was not of a
duration long enough to justify any such inference.
There is no proof of any valid grant, but, on the contrary, the
evidence offered by the plaintiff himself and upon which he bases the
title that he asks the court to confirm, shows the existence of a grant
from a body which had no legal power to make it, and which
therefore conveyed no title whatever to its grantee, and the evidence
is, as given by the plaintiff himself, that it was under this grant alone
that possession of the lands was taken. We cannot presume (within
the time involved in this case) that any other and valid grant was ever
made. The possession of the plaintiff and of his grantors up to the
time of the Treaty of Guadalupe Hidalgo, in 1848, had not been long
enough to presume a grant. Crespin v. United States, 168 U. S.
208; Hayes v. United States, 170 U. S. 637, 170 U. S. 649; Hays v.
United States, ante, 175 U. S. 248. The possession subsequently
existing, we cannot notice. Same authorities.
We think the judgment of the court below should be
Affirmed.
#3
Republic of the Philippines

SUPREME COURT

Manila
EN BANC
G.R. No. 1413 March 30, 1904
ANDRES VALENTON, ET AL., plaintiffs-appellants, 

vs.

MANUEL MURCIANO, defendant-appellee.
Montagne and Dominguez for appellants. 

Del Pan, Ortigas and Fisher for appellee.
WILLARD, J.:
I. The findings of fact made by the court below in its decision are as
follows:
First. That in the year 1860, the plaintiffs, and each one of
them, entered into the peaceful and quiet occupation and
possession of the larger part of the lands described in the
complaint of the plaintiffs, to wit [description]:
Second. That on the date on which the plaintiffs entered into
the occupation and possession of the said lands, as above set
forth, these lands and every part thereof were public,
untilled, and unoccupied, and belonged to the then existing
Government of the Philippine Islands. That immediately
after the occupation and possession of the said lands by the
plaintiffs, the plaintiffs began to cultivate and improve them
in a quiet and peaceful manner.
Third. That from the said year 1860, the plaintiffs continued
to occupy and possess the said lands, quietly and peacefully,
until the year 1892, by themselves, by their agents and
tenants, claiming that they were the exclusive owners of said
lands.
Fourth. That on or about the 16th day of January, 1892,
Manuel Murciano, defendant in this proceeding, acting on
behalf of and as attorney in fact of Candido Capulong, by
occupation a cook, denounced the said lands to the then
existing Government of the Philippine Islands, declaring that
the said lands every part thereof were public, untilled, and
unoccupied lands belonging to the then existing Government
of the Philippine Islands, and petitioned for the sale of the
same to him.
Fifth. That before the execution of the sale heretofore
mentioned, various proceedings were had for the survey and
measurement of the lands in question at the instance of the
defendant, Murciano, the latter acting as agent and attorney
in fact of said Candido Capulong, a written protest, however,
having been entered against these proceedings by the
plaintiff Andres Valenton.
Sixth. That on the 14th day of July, 1892, Don Enrique
Castellvie Ibarrola, secretary of the treasury of the Province
of Tarlac, in his official capacity as such secretary, executed
a contract of purchase and sale, by which said lands were
sold and conveyed by him to the defendant, Manuel
Murciano, as attorney for the said Candido Capulong.
Seventh. That on the 19th day of July, 1892, said Candido
Capulong executed a contract of purchase and sale, by which
he sold and conveyed the said lands to the defendants,
Manuel Murciano.
Eight. That from the said 14th day of July, 1892, Manuel
Murciano has at no time occupied or possessed all of the
land mentioned, but has possessed only certain in distinct
and indefinite portions of the same. That during all this time
the plaintiffs have opposed the occupation of the defendant,
and said plaintiffs during all the time in question have been
and are in the possession and occupation of part of the said
lands, tilling them and improving them by themselves and by
their agents and tenants.
Ninth. That never, prior to the said 14th day of July,, 1892,
has the defendant, Manuel Murciano, been in the peaceful
and quiet possession and occupation of the said lands, or in
the peaceful and quiet occupation of any part thereof.
Upon these facts the Court of First Instance ordered judgment for the
defendant on the ground that the plaintiffs had lost all right to the
land by not pursuing their objections to the sale mentioned in the
sixth finding. The plaintiffs excepted to the judgment and claim in
this court that upon the facts found by the court below judgment
should have been entered in their favor. Their contention is that in
1890 they had been in the adverse possession of the property for
thirty years; that, applying the extra ordinary period of prescription
of thirty years, found as well in the Partidas as in the Civil Code,
they then became the absolute owners of the land as against
everyone, including the State, and that when the State in 1892
deeded the property to the defendant, nothing passed by the deed
because the State had nothing to convey.
The case presents, therefore, the important question whether or not
during the years from 1860 to 1890 a private person, situated as the
plaintiffs were, could have obtained as against the State the
ownership of the public lands of the State by means of occupation.
The court finds that at the time of the entry by the plaintiff in 1860
the lands were vacant and were public lands belonging to the then
existing Government. The plaintiffs do not claim to have ever
obtained from the Government any deed for the lands, nor any
confirmation of their possession.
Whether in the absence of any special legislation on the subject a
general statute of limitations in which the State was not expressly
excepted would run against the State as to its public lands we do not
find it necessary to decide. Reasons based upon public policy could
be adduced why it should not, at least as to such public lands as are
involved in this case. (See Act No. 926, sec. 67.) We are, however, of
the opinion that the case at bar must be decided, not by the general
statute of limitation contained in the Partidas, but by those special
laws which from the earliest times have regulated the disposition of
the public lands in the colonies.
Did these special laws recognize any right of prescription against the
State as to these lands; and if so, to what extend was it recognizes?
Laws of very early date provided for the assignment of public lands
to the subjects of the Crown. Law 1, title 12, book 4 of
the Recopilacion de Leyes de las Indias is an example of them, and is
as follows:
In order that our subjects may be encouraged to undertake
the discovery and settlement of the Indies, and that they may
live with the comfort and convenience which we desire, it is
our will that there shall be distributed to all those who shall
go out to people the new territories, houses, lots,
lands, peonias, and caballerias in the towns and places
which may be assigned to them by the governor of the new
settlement, who in apportioning the lands, will distinguish
between gentlemen and peasants, and those of lower degree
and merit, and who will add to the possessions and better the
condition of the grantees, according to the nature of the
services rendered by them, and with a view to the promotion
of agriculture and stock raising. To those who shall have
labored and established a home on said lands and who shall
have resided in the said settlement for a period of four years
we grant the right thereafter to sell and in every other
manner to exercise their free will over said lands as over
their own property. And we further command that, in
accordance with their rank and degree, the governor, or
whoever may be invested with our authority, shall allot the
Indians to them in any distribution made, so that they may
profit by their labor and fines in accordance with the tributes
required and the law controlling such matters.
And in order that, in allotting said lands, there may be no
doubt as to the area of each grant, we declare that
a peonia shall consist of a tract fifty feet in breadth by one
hundred in length, with arable land capable of producing one
hundred bushels of wheat or barley, ten bushels of maize, as
much land for an orchard as two yokes of oxen may plough
in a day, and for the planting of other trees of a hardy nature
as much as may be plowed with eight yokes in a day, and
including pasture for twenty cows, five mares, one hundred
sheep, twenty goats, and ten breeding pigs.
A caballeria shall be a tract one hundred feet in breadth and
two hundred in length, and in other respects shall equal
five peonias — that is, it will include arable land capable of
producing five hundred bushels of wheat or barley and fifty
bushels of maize, as much land for an orchard as may be
ploughed with ten yokes of oxen in a day, and for the
planting of other hardy trees as much as forty yokes may
plough in a day, together with pasturage for one hundred
cows, twenty mares, five hundred sheep, one hundred goats,
and fifty breeding pigs. And we order that the distribution be
made in such a manner that all may receive equal benefit
therefrom, and if this be impracticable, then that each shall
be given his due.
But it was necessary, however, that action should in all cases be
taken by the public officials before any interest was acquired by the
subject.
Law 8 of said title 12 is as follows:
We command that if a petition shall be presented asking the
grant of a lot or tract of land in a city or town in which one
of our courts may be located, the presentation shall be made
to the municipal council. If the latter shall approve the
petition, two deputy magistrates will be appointed, who will
acquaint the viceroy or municipal president with the
council's judgment in the matter. After consideration thereof
by the viceroy or president and the deputy magistrates, all
will sign the grants, in the presence of the clerk of the
council, in order that the matter may be duly recorded in the
council book. If the petition shall be for the grant of waters
and lands for mercantile purpose, it shall be presented to the
viceroy or municipal president, who will transmit it to the
council. If the latters shall vote to make the grant, one of the
magistrates will carry its decision to the viceroy or president,
 to the end that, upon consideration of the matter by him, the
proper action may be taken.
It happened, in the course of time, that tracts of the public land were
found in the possession of persons who either had no title papers
therefor issued by the State, or whose title papers were defective,
either because the proper procedure had not been followed or
because they had been issued by persons who had no authority to do
so. Law 14, title 12 book 4 of said compilation (referred to in the
regulations of June 25, 1880, for the Philippines) was the first of a
long series of legislative acts intended to compel those in possession
of the public lands, without written evidence of title, or with
defective title papers, to present evidence as to their possession or
grants, and obtain the confirmation of their claim to ownership. That
law is as follows:
We having acquitted full sovereignty over the Indies, and all
lands territories, and possession not heretofore ceded away
by our royal predecessors, or by, 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
grants be restored to us according 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 the 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 designated, 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.
While the State has always recognized the right of the occupant to
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.
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 proceeded him. This
statement excludes the idea that there might be lands no so granted,
that did not being 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
lands possessed by them without any action on the part of the
authorities. It is plain that they were required to present their claims
to the authorities and obtain a confirmation thereof. What the period
of prescription mentioned in this law was does not appear, but latter,
in 1646, law 19 of the same title declared "that no one shall be
'admitted to adjustment' unless he has possessed the lands for ten
years."
In law 15, title 12, book 4 of the same compilation, there is a
command that those lands as to which there has been no adjustment
with the Government be sold at auction to the highest bidder. That
law is as follows:
For the greater good of our subjects, we order and command
that our viceroys and governing presidents shall do nothing
with respect to lands the claims to which have been adjusted
by their predecessors, tending to disturb the peaceful
possession of the owners thereof. As to those who shall have
 extended their possession beyond the limits fixed in the
original grants, they will be admitted to a moderate
adjustment with respect to the excess, and new title deeds
will be issued therefor. And all those lands as to which no
adjustment has been made shall, without exception, be sold
at public auction to the highest bidder, the purchase price
therefor to be payable either in cash or in the form of
quitrent, in accordance with the laws and royal ordinances of
the kingdoms of Castile. We leave to the viceroys and
president the mode and from in which what is here ordered
shall be carried into effect in order that they may provide for
it at the least possible cost; and in order that all unnecessary
expense with respect to the collections for said lands may be
avoided, we command that the same be made by our royal
officers in person, without the employment of special
collectors, and to that end availing themselves of the services
of our royal courts, and, in places where courts shall not
have been established, of the town mayors.
And whereas, title deeds to lands have been granted by
officers not authorized to issue them, and such titles have
been confirmed by us in council, we command that those
holding such a certificate of confirmation may continue to
possess the lands to which it refers, and will, within the
limits stated in the confirmation certificate, be protected in
their possession; and with respect to any encroachment
beyond such limits will be admitted to the benefits of this
law.
Another legislative act of the same character was the royal cedula of
October 15, 1754 (4 Legislacion Ultramarina, Rodriguez San Pedro,
673). Articles 3, 4, and 5 of this royal cedula as follows:
3. Upon each principal subdelegate's appointment, which
will be made in the manner prescribed in article 1 of this
cedula, and upon his receipts of these instructions, of which
every principal subdelegate already designated or who may
hereafter be appointed shall be furnished a copy, said
subdelegate will in his turn issue a general order to the courts
in the provincial capitals and principal towns of his district,
directing the publication therein, in the manner followed in
connection with the promulgation or general orders of
viceroys, presidents, and administrative courts in matters
connected with my service, of these instructions, 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 the same
shall be cultivated of tenanted, may, either in person or
through their attorneys or representatives, appear and exhibit
to said subdelegates the titles and patents by virtue of which
said lands are occupied. Said subdelegates will designate as
the period within which such documents must be presented a
term sufficient in length and proportionate to the distance the
interested party may have to travel for the purpose of making
the presentation. 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 an
evicted from their lands, and they will be granted to others.
4. If it shall appear from the titles or instruments presented,
or if it shall be shown in any other legal manner that said
persons are in possession of such royal lands by virtue of a
sale or adjustment consummated by duly authorized
subdelegates prior to the said year 1700, although such
action may not have been confirmed by my royal person, or
by a viceroy or president, they shall in no wise be molested,
but shall be left in the full and quiet possession of the same;
nor shall they be required to pay any fee on account of these
proceedings, in accordance with law 15, title 12, book 4 of
the Recopilacion de los Indias, above cited. A note shall be
made upon said title deeds to the effect that his obligation
has been complied with, to the end that the owners of such
rival lands and their successors may hereafter be free from
denunciation, summons, or other disturbance in their
possession.
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; provided,
however, that if the lands shall not be in state of cultivation
or tillage, the term of three months prescribed by law 11 of
the title and book cited, or such other period as may be
deemed adequate, shall be designated as the period within
which the lands must be reduced to cultivation, with the
warning that in case of their failure so to do the lands will be
granted, with the same obligation to cultivate them, to
whomsoever may denounce them.
5. Likewise neither shall possessors of lands sold or adjusted
by the various subdelegates from the year 1700 to the
present time be molested, disturbed, or denounced, now or at
any other time, with respect to such possession, if such sales
or adjustments shall have been confirmed by me, or by the
viceroy or the president of the court of the district in which
the lands are located while authorized to exercise this power.
In cases where the sales of adjustments shall not have been
so confirmed, the possessors will present to the courts of
their respective district and to the other officials hereby
empowered to receive the same, a petition asking for the
confirmation of said sales and adjustments. After the
proceedings outlined by the subdelegates in their order with
respect to the measurement and valuation of the said lands,
and with reference to the title issued therefor, shall have been
duly completed, said courts and officials will make an
examination of the same for the purpose of ascertaining
whether the sale or adjustment has been made without fraud
and collusion, and for an adequate and equitable price, and a
similar examination shall be made by the prosecuting
attorney of the district, to the end that, in view of all the
proceedings and the purchase or adjustment price of the
land, and the media anata having been duly, etc., paid into
the royal treasury, as well as such additional sum as may be
deemed proper, there will be issued to the possessor, in my
royal name, a confirmation of his title, by virtue of which his
possession and ownership of lands and waters which it
represents will be fully legalized, to the end that at no time
will he or his heirs or assigns be disturbed or molested
therein.
The wording of this law is much stronger than that of law 14. As is
seen by the terms of article 3, any person whatever who occupied
any public land was required to present the instruments by virtue of
which he was in possession, within a time to be fixed by the
authorities, and he was warned that if he did not do so he would be
evicted from his land and it would be granted to others. By terms of
article 4 those possessors to whom grants had been made prior to
1700, were entitled to have such grants confirmed, and it was also
provided that not being able to prove any grants it should be
sufficient to prove "that ancient possession," as a sufficient title by
prescription, and they should be confirmed in their holdings. "That
ancient possession" would be at least fifty-four years, for it would
have to date from prior to 1700. Under article 5, where the
possession dated from 1700, no confirmation could be granted on
proof of prescription alone.
The length of possession required to be proved before the
Government would issue a deed has varied in different colonies and
at different times. In the Philippines, as has been seen, it was at one
time ten years, at another time fifty-four years at least. In Cuba, by
the royal cedula of April 24, 1833, to obtain a deed one had to prove,
as to uncultivated lands, a possession of one hundred years, and as to
cultivated lands a possession of fifty years. In the same islands, by
the royal order of July 16, 1819, a possession of forty years was
sufficient.
In the Philippines at a later date royal of September 21, 1797
(4 Legislacion Ultramarina, Rodriguez San Pedro, p. 688), directed
the observation of the said royal cedula of 1754, but apparently
without being subject to the period of prescription therein assigned.
The royal order of July 5, 1862 (Gaceta de Manila, November 15,
1864), also ordered that until regulations on the subject could be
prepared the authorities of the Islands should follow strictly the Laws
of the Indies, the Ordenanza of the Intendentes of 1786, and the said
royal cedula of 1754.
The royal order of November 14, 1876 (Guia del Comprador de
Terrenos, p. 51), directed the provincial governors to urge those in
unlawful possession of public lands to seek an adjustment with the
State in accordance with the existing laws. The regulations as to the
adjustment (composicion) of the titles to public lands remained in
this condition until the regulations of June 25, 1880. This is the most
important of the modern legislative acts upon the matter of
"adjustment" as distinguished from that of the sale of the public
lands.
The royal degree approving these regulations is dated June 25, 1880,
and is as follows:1
Upon the suggestion of the colonial minister, made in
conformity with the decree of the full meeting of the council
of state, I hereby approve the attached regulations for the
adjustment of royal lands wrongfully occupied by private
individuals in the Philippine Islands.
Articles 1, 4, 5, 8, and part of article 6 are as follows:
ART. 1. For the purpose of these regulations and in
conformity with law 14, title 12, book 4 of the
Recompilation of Laws of the Indies, the following will be
regarded as royal lands: All lands whose lawful ownership is
not vested in some private, persons, or, what is the same
thing, which have never passed to private ownership by
virtue of cession by competent authorities, made either
gratuitously or for a consideration.
ART. 4. For all legal effects, those will be considered
proprietors of the royal lands herein treated who may prove
that they have possessed the lands without interruption
during the period of ten years, by virtue of a good title and in
good faith.
ART. 5. In the same manner, those who without such title
deeds may prove that they have possessed their said lands
without interruption for a period of twenty years if in a state
of cultivation, or for a period of thirty years if uncultivated,
shall be regarded as proprietors thereof. In order that a tract
of land may be considered cultivated, it will be necessary to
show that it has been broken within the last three years.
ART. 6. Interested parties not included within the two
preceding articles 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: . . .
(5) Those who, entirely without title deeds, may be in
possession of lands belonging to the State and have reduced
said lands to a state of cultivation, may acquire the
ownership thereof by paying into the public treasury the
value of the lands at the time such possessors or their
representatives began their unauthorized enjoyment of the
same.
(6) In case said lands shall never have been ploughed, but
are still in a wild state, or covered with forest, the ownership
of the same may be acquired by paying their value at the
time of the filing of the claim, as stated in the fourth
paragraph."
ART. 8. If the interested parties shall not ask an adjustment
of the lands whose possession they are unlawfully enjoying
within the time of one year, or, the adjustment having been
granted by the authorities, they shall fail to fulfill their
obligation in connection with the compromise, by paying the
proper sum into the treasury, the latter will, by virtue of the
authority vested in it, reassert the ownership of the State over
the lands, and will, after fixing the value thereof, proceed to
sell at public auction that part of the same which either
because it may have been reduced to cultivation or is not
located within the forest zone is not deemed advisable to
preserve as the State forest reservation.
The other articles of the regulations state the manner in which
applications should be made for adjustment, and the proceedings
thereon.
Do these regulations declare that those who are included in article 4
and 5 are the absolute owners of the land occupied by them without
any action on their part, or that of the State, or do they declare that
such persons must seek an adjustment and obtain a deed from the
State, and if they do not do so within the time named in article 8 they
lose all interest in the lands?
It must be admitted from the wording of the law that the question is
not free from doubt. Upon a consideration, however, of the whole
matter, that doubt must, we think, be resolved in favor of the State.
The following are some of the reasons which lead us to that
conclusion:
(1) It will be noticed that article 4 does not say that those persons
shall be considered as owners who have occupied the lands for ten
years, which would have been the language naturally used if an
absolute grant had been intended. It says, instead, that those shall be
considered owners who may prove that they have been in possession
ten years. Was this proof to be made at any time in the future when
the question might arise, or was it to be made in the proceedings
which these very regulations provided for that purpose? We think
that the latter is the proper construction.
(2) Article 1 declares in plain terms that all those lands as to which
the State has never executed any deeds are the property of the State
— that is, that on June 25, 1880, no public lands belonged to
individuals unless they could exhibit a State deed therefor. This is
entirely inconsistent with the idea that the same law in its article 4
declares that the lands in question in this case became the property of
the plaintiffs in 1870, and were not in 1880 the property of the State,
though the State had never given any deed for them.
(3) The royal decree, by its terms, relates to
l a n d s w ro n g f u l l y w i t h h e l d b y p r i v a t e p e r s o n s . T h e
word detentados necessarily implies this. This is inconsistent with
the idea that by article 4 of the plaintiffs, in 1870, became the
absolute owners of the lands in question, and were not therefore, in
1880, withholding what did not belong to them.
(4) In the preface to this decree and regulations, the following
language is used:
SIR: The uncertain, and it may be said the precarious, state
of real property in various parts of the Philippine Islands, as
yet sparsely populated; the necessity for encouraging the
cultivation of these lands; the advantage of increasing the
wealth and products of the Archipelago; the immense and
immediate profit which must result to all classes of interests,
public as well as private, from the substitution of full
ownership, with all the privileges which by law accompany
this real right, for the mere possession of the lands, have
long counseled the adoption of the provisions contained in
the following regulations, which, after consulation with the
Philippine council, and in conformity with an order passed at
a full meeting of the council of state, the subscribing
minister has the honor to submit for the royal approval.
These regulations refer not only to tenants of royal lands in
good faith and by virtue of a valid title, but also to those
who, lacking these, may, either by themselves reducing such
lands to cultivation or by the application of intelligence and
initiative, causing their cultivation by others who lack these
qualities, be augmenting the wealth of the Archipelago.2
This preface is the most authoritative commentary on the law, and
shows without doubt that those who held with color of title and good
faith were, notwithstanding, holding wrongfully, and that true
ownership should be substituted for their possession.
(5) This doubt suggested by the wording of the law was the subject
of inquiries directed to the officers in Manila charged with its
execution. These inquiries were answered in the circular of August
10, 1881, published in the Gaceta de Manila August 11, 1881, as
follows:
Should possessors of royal lands under color of title and in
good faith seek adjustment?
It is evident that they must do so, for it is to them that article
4 of the regulations refers, as also the following article
covers other cases of possession under different
circumstances. It should be well understood by you, and you
should in turn have it understood by other, that the
adjustment of lands whose ownership has not passed to
private individuals by virtue of cession by competent
authorities, is optional only for those within the limits of the
common district (legua comunal) as provided by article 7. In
all other cases where the interested parties shall fail to
present themselves for the adjustment of the lands occupied
 by them shall suffer the penalties set forth in article 8 of said
regulations.
In determining the meaning of a law where a doubt exists the
construction placed upon it by the officers whose duty it is to
administer it is entitled to weight.
(6) There is, moreover, legislative construction of these regulations
upon this point found in subsequent laws. The royal decree of
December 26, 1884, (Berriz Anuario, 1888, p. 117), provides in
articles 1 that —
All those public lands wrongfully withheld by private person
in the Philippines which, in accordance with the regulations
of June 25, 1880, are subject to adjustment with the treasury,
shall be divided into three groups, of which the first shall
include those which, because they are included in articles 4
and 5, and the first paragraph of article 7, are entitled to free
adjustment.
There were exceptions to this rule which are not here important.
Article 10 provides that if the adjustment is free for those mentioned
in articles 4 and 5, who are included in the second group, the deed
shall be issued by the governor of the province. Article 11 says that if
the adjustment is not free, because the applicant has not proved his
right by prescription, then no deed can be issued until the proper
payment has been made. The whole decree shows clearly that the
legislator intended that those mentioned in article 4 and 5 should
apply for a confirmation of their titles by prescription, as well as
those mentioned in article 6. In fact, for the adjustment of those of
the first group, which necessarily included only those found within
articles 4 and 5, a board was organized (art. 15) in each pueblo
whose sole duty it was to dispatch applications made said two
articles.
(7) The royal decree of August 31, 1888 (Berriz Anuario, 1888, p.
120), is another legislative construction of this regulation. That
decree repealed the decree of 1884, and divided all lands subjects to
adjustment under the regulations of June 25, 1880, into two groups.
In the first group were all those lands which bordered at any points
on other State lands, and those which, though not bordering on State
lands, measured more than 30 hectares. In the second group were
those which were bounded entirely by lands of private persons and
did not exceed 30 hectares. For the second group a provincial board
was organized, and article 10 provides a hearing before this board,
and declares —
If no protest or claim shall be filed, and the adjustment must
be free because the occupant has proved title by prescription,
as provided in articles 4 and 5 of the regulations
promulgated June 25, 1880, the proceedings shall be duty
approved, and the head officer of the province will, in his
capacity of deputy director general of the civil
administration, issue the corresponding title deed.
The policy pursued by the Spanish Government from the earliest
times, requiring settlers on the public lands to obtain deeds therefor
from the State, has been continued by the American Government in
Act No. 926, which takes effect when approved by Congress. Section
54, sixth paragraph of that act, declares that the persons named in
said paragraph 6 "shall be conclusively presumed to have performed
all the conditions essential to a Government grant and to have
received the same." Yet such persons are required by section 56 to
present a petition to the Court of Land Registration for a
confirmation of these titles.
We have considered the regulations relating to adjustment — that is,
those laws under which persons in possession might perfect their
titles. But there were other laws relating to the sale of public lands
which contained provisions fatal to the plaintiff's claims. The royal
decree of January 26, 1889 (Gaceta de Manila, March 20, 1889),
approved the regulations for the sale of public lands in the
Philippines, and it was in accordance with such regulations that the
appellee acquired his title. Article 4 of those regulations required the
publication in the Gaceta de Manila of the application to purchase,
with a description of the lands, and gave sixty days within which
anyone could object to the sale. A similar notice in the dialect of the
locality was required to be posted on the municipal building of the
town in which the land was situated, and to be made public by the
crier. Articles 5 and 6 declared to whom such objections shall be
made and the course which they should take. Article 8 is as follows:
 ART. 8. In no case will the judicial authorities take
cognizance of the suit against the decrees of the civil
administration concerning the sale of royal lands unless the
plaintiff shall attach to the complaint documents which show
that he has exhausted the administrative remedy. After the
proceeding in the executive department shall have been
terminated and the matter finally passed upon, anyone
considering his interests prejudiced thereby may commence
a suit in the court against the State; but in no case shall an
action be brought against the proprietor of the land.
Similar provisions are found in the regulations of 1883, approved the
second time by royal order of February 16 (Gaceta de Manila, June
28, 1883). Articles 18 and 23 of said regulations are as follows:
ART. 18. Possessors of such lands as may fall within the
class of alienable royal lands shall be obliged to apply for the
ownership of the same, or for the adjustment thereof within
the term of sixty days from the time of the publication in the
bulletin of Sales of the notice of sale thereof.
ART. 23. The judicial authorities shall take cognizance of no
complaint against the decrees of the treasury department
concerning the sale of lands pertaining to the state unless the
complainant shall attached to the complaint documents
which proved that he has exhausted the administrative
remedy.
This prohibition appears also in the royal order of October 26, 1881
(Gaceta de Manila, December 18, 1881) which relates evidently both
to sales of public lands and also to the adjustments with the
occupants.
Article 5 of this royal order is as follows:
During the pendency of proceedings in the executive
department with respect to grants of land, interested parties
may present through executive channels such protest as they
may deemed advisable for the protection of their right and
interests. The proceeding having once been completed, and
the grant made, those who consider their interests prejudiced
thereby may proceed in court against the State, but under no
circumstances against the grantees of the land.
The American legislation creating the Court of Land Registration is
but an application of this same principle. In both systems the title is
guaranteed to the petitioner, after examination by a tribunal. In
Spanish system this tribunal was called an administrative one, in the
American a judicial one.
The court finds that the plaintiffs made a written protest against the
sale to the defendants while the proceedings for the measurements
and survey of the land were being carried on, but that they did not
follow up their protest. This, as held by the court below, is a bar their
recovery in this action, under the articles above cited.
The plaintiff state in their brief that a great fraud was committed on
them and the State by the defendant in applying for the purchase of
this lands as vacant and belonging to the public, when they were in
the actual adverse possession of the plaintiffs.
We have seen nothing in the regulations relating to the sale of the
public lands which limited their force to vacant lands. On the
contrary there are provisions which indicate the contrary. In the
application for the purchase the petitioner is article 3 of the
regulations of 1889 required to state whether any portion of the land
sought has been broken for cultivation, and to whom such
improvements belong. Article 9 provides that if one in possession
applies to purchase the land, he renounces his right to
a composicion under the laws relating to that subject. By article 13
the report of the officials making the survey must contain a statement
as to whether any part of the land is cultivated or not and if the
applicant claims to be the owner of such cultivated part.
In the regulations of January 19, 1883 (Gaceta de Manila, June 28,
1883) is the following article:
ART. 18. Possessors of such lands as may fall within the
class of royal alienable lands shall be obliged to apply for the
ownership of the same, or for the adjustment thereof, within
the term of sixty days from the time of the publication in the
Bulletin of Sales of the notice of sale thereof.
In view of all these provisions it seems impossible to believe that the
legislators even intended to leave the validity of any sale made by
the State to be determined at any time in the future by the ordinary
courts on parol testimony. Such would be the result if the contention
of the plaintiffs is to be sustained. According to their claim, this sale
and every other sale made by the State can be set aside if at any time
in the future it can be proved that certain persons had been in
possession of the land for the term then required for prescription.
If this claim is allowed it would result that even though written title
from the State would be safe from such attack by parol evidence, by
means of such evidence damages could have been recovered against
the State for lands sold by the State to which third persons might
thereafter prove ownership but prescription. The unreliability of
parol testimony on the subject of possession is well known. In this
case in the report which the law required to be made before a sale
could be had it is stated by an Ayudante de Montes that the tract had
an area of 429 hectares, 77 ares, and 96 centares uncultivated, and 50
hectares, 19 ares, and 73 centares broken for cultivation. The official
report also says (1890) that the breaking is recent. Notwithstanding
this official report, the plaintiffs introduced evidence from which the
court found that the greater part of the tract had been occupied and
cultivated by the plaintiffs since 1860.
It is hardly conceivable that the State intended to put in force
legislation under which its property rights could be so prejudiced.
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, and that the
judgment below declaring the defendant the owner of the lands must
be affirmed.
II. What has been said heretofore makes it unnecessary to consider
the motion for a new trial, made by the defendant on the ground that
the findings of fact are not supported by the evidence.
III. The exception of the defendant to the order vacating the
appointment of the receiver can not be sustained. The defendant at no
time made any showing sufficient to authorize the appointment of a
receiver.
The case does not fall under No. 4 of section 174 of the Code of
Civil Procedure. Neither party in his pleadings asked any relief as to
the crops. They were not, therefore, "the property which is the
subject of litigation."
Neither does the case fall under No. 2 of section 174, for the same
reason.
Moreover, under No. 2 it must be shown that the property is in
danger of being lost. There was no showing of that kind. The
pleadings say nothing upon the subject. In the motion for the
appointment of the receiver it said that the plaintiffs are insolvent.
There is no evidence, by affidavit or otherwise, to support this
statement. A bare, unsworn statement in a motion that the adverse
party is insolvent is not sufficient to warrant a court in appointing a
receiver for property in his possession.
The judgment of the court below is affirmed. Neither party can
recover costs in this court.
#4
U.S. Supreme Court
Carino v. Insular Government, 212 U.S. 449 (1909)
Carino v. Insular Government of the Philippine Islands
No. 72
Argued January 13, 1909
Decided February 23, 1909
212 U.S. 449
ERROR TO THE SUPREME COURT
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.
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.
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.
Page 212 U. S. 450
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.
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.
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.
7 Phil. 132 reversed.
The facts are stated in the opinion.
Page 212 U. S. 455
MR. JUSTICE HOLMES delivered the opinion of the Court.
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
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.
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
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
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
"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,
Page 212 U. S. 460
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
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 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 #5
would be lost.
Republic of the Philippines

Page 212 U. S. 463 SUPREME COURT

The effect of the proof, wherever made, was not to confer title, but Manila
simply to establish it, as already conferred by the decree, if not by EN BANC
earlier law. The royal decree of February 13, 1894, declaring
forfeited titles that were capable of adjustment under the decree of G.R. No. L-24066 December 9, 1925
1880, for which adjustment had not been sought, should not be VALENTIN SUSI, plaintiff-appellee, 

construed as a confiscation, but as the withdrawal of a privilege. As a vs.

matter of fact, the applicant never was disturbed. This same decree is ANGELA RAZON and THE DIRECTOR OF LANDS,
quoted by the Court of Land Registration for another recognition of defendants. THE DIRECTOR OF LANDS, appellant.
the common law prescription of thirty years as still running against
alienable Crown land. Acting Attorney-General Reyes for appellant. 

Monico R. Mercado for appellee.
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 VILLA-REAL, J.:
legal tradition. We have deemed it proper on that account to notice This action was commenced in the Court of First Instance of
the possible effect of the change of sovereignty and the act of Pampanga by a complaint filed by Valentin Susi against Angela
Congress establishing the fundamental principles now to be Razon and the Director of Lands, praying for judgment: (a)
observed. Upon a consideration of the whole case, we are of opinion Declaring plaintiff the sole and absolute owner of the parcel of land
that law and justice require that the applicant should be granted what described in the second paragraph of the complaint; (b) annulling the
he seeks, and should not be deprived of what, by the practice and sale made by the Director of Lands in favor of Angela Razon, on the
belief of those among whom he lived, was his property, through a ground that the land is a private property; (c) ordering the
refined interpretation of an almost forgotten law of Spain. cancellation of the certificate of title issued to said Angela Razon;
Judgment reversed. and (d) sentencing the latter to pay plaintiff the sum of P500 as
damages, with the costs.
For his answer to the complaint, the Director of Lands denied each
and every allegation contained therein and, as special defense,
alleged that the land in question was a property of the Government of
the United States under the administration and control of the
Philippine Islands before its sale to Angela Razon, which was made
in accordance with law.
After trial, whereat evidence was introduced by both parties, the
Court of First Instance of Pampanga rendered judgment declaring the
plaintiff entitled to the possession of the land, annulling the sale
made by the Director of Lands in favor of Angela Razon, and
ordering the cancellation of the certificate of title issued to her, with
the costs against Angela Razon. From this judgment the Director of
Lands took this appeal, assigning thereto the following errors, to wit:
(1) The holding that the judgment rendered in a prior case between
the plaintiff and defendant Angela Razon on the parcel of land in
question is controlling in this action; (2) the holding that plaintiff is
entitled to recover the possession of said parcel of land; the
annulment of the sale made by the Director of Lands to Angela
Razon; and the ordering that the certificate of title issued by the
register of deeds of the Province of Pampanga to Angela Razon by
virtue of said sale be cancelled; and (3) the denial of the motion for
new trial filed by the Director of Lands.
The evidence shows that on December 18, 1880, Nemesio Pinlac
sold the land in question, then a fish pond, tho Apolonio Garcia and
Basilio Mendoza for the sum of P12, reserving the right to
repurchase the same (Exhibit B). After having been in possession
thereof for about eight years, and the fish pond having been
destroyed, Apolonio Garcia and Basilio Mendoza, on September 5,
1899, sold it to Valentin Susi for the sum of P12, reserving the right
to repurchase it (Exhibit A). Before the execution of the deed of sale,
Valentin Susi had already paid its price and sown "bacawan" on said
land, availing himself of the firewood gathered thereon, with the
proceeds of the sale of which he had paid the price of the property.
The possession and occupation of the land in question, first, by
Apolonio Garcia and Basilio Mendoza, and then by Valentin Susi has
been open, continuous, adverse and public, without any interruption,
except during the revolution, or disturbance, except when Angela
Razon, on September 13, 1913, commenced an action in the Court of
First Instance of Pampanga to recover the possession of said land
(Exhibit C), wherein after considering the evidence introduced at the
trial, the court rendered judgment in favor of Valentin Susi and
against Angela Razon, dismissing the complaint (Exhibit E). Having
failed in her attempt to obtain possession of the land in question
through the court, Angela Razon applied to the Director of Lands for
the purchase thereof on August 15, 1914 (Exhibit C). Having learned
of said application, Valentin Susi filed and opposition thereto on
December 6, 1915, asserting his possession of the land for twenty-
five years (Exhibit P). After making the proper administrative
investigation, the Director of Lands overruled the opposition of
Valentin Susi and sold the land to Angela Razon. By virtue of said
grant the register of deeds of Pampanga, on August 31, 1921, issued
the proper certificate of title to Angela Razon. Armed with said
document, Angela Razon required Valentin Susi to vacate the land in
question, and as he refused to do so, she brought and action for
forcible entry and detainer in the justice of the peace court of
Guagua, Pampanga, which was dismissed for lack of jurisdiction, the
case being one of title to real property (Exhibit F and M). Valentin
Susi then brought this action.
With these facts in view, we shall proceed to consider the questions
raised by the appellant in his assignments of error.lawphi1.net
It clearly appears from the evidence that Valentin Susi has been in
possession of the land in question openly, continuously, adversely,
and publicly, personally and through his predecessors, since the year
1880, that is, for about forty-five years. While the judgment of the
Court of First Instance of Pampanga against Angela Razon in the
forcible entry case does not affect the Director of Lands, yet it is
controlling as to Angela Razon and rebuts her claim that she had
been in possession thereof. When on August 15, 1914, Angela Razon
applied for the purchase of said land, Valentin Susi had already been
in possession thereof personally and through his predecessors for
thirty-four years. And if it is taken into account that Nemesio Pinlac
had already made said land a fish pond when he sold it on December
18, 1880, it can hardly be estimated when he began to possess and
occupy it, the period of time being so long that it is beyond the reach
of memory. These being the facts, the doctrine laid down by the
Supreme Court of the United States in the case of Cariño vs.
Government of the Philippine Islands (212 U. S., 4491), is applicable
here. In favor of Valentin Susi, there is, moreover, the
presumption juris et de jure established in paragraph (b) of section
45 of Act No. 2874, amending Act No. 926, that all the necessary
requirements for a grant by the Government were complied with, for
he has been in actual and physical possession, personally and
through his predecessors, of an agricultural land of the public domain
openly, continuously, exclusively and publicly since July 26, 1894,
with a right to a certificate of title to said land under the provisions
of Chapter VIII of said Act. So that when Angela Razon applied for
the grant in her favor, Valentin Susi had already acquired, by
operation of law, not only a right to a grant, but a grant of the
Government, for it is not necessary that certificate of title should be
issued in order that said grant may be sanctioned by the courts, an #6
application therefore is sufficient, under the provisions of section 47
of Act No. 2874. If by a legal fiction, Valentin Susi had acquired the Republic of the Philippines

land in question by a grant of the State, it had already ceased to be SUPREME COURT

the public domain and had become private property, at least by Manila
presumption, of Valentin Susi, beyond the control of the Director of EN BANC
Lands. Consequently, in selling the land in question to Angela
Razon, the Director of Lands disposed of a land over which he had G.R. No. L-3793 February 19, 1908
no longer any title or control, and the sale thus made was void and of CIRILO MAPA, petitioner-appellee, 

no effect, and Angela Razon did not thereby acquire any right. vs.

The Director of Lands contends that the land in question being of the THE INSULAR GOVERNMENT, respondent-appellant.
public domain, the plaintiff-appellee cannot maintain an action to Attorney-General Araneta for appellant.

recover possession thereof.lawphi1.net Basilio R. Mapa for appellee.
If, as above stated, the land, the possession of which is in dispute, WILLARD, J.:
had already become, by operation of law, private property of the This case comes from the Court of Land Registration. The petitioner
plaintiff, there lacking only the judicial sanction of his title, Valentin sought to have registered a tract of land of about 16 hectares in
Susi has the right to bring an action to recover possession thereof and extent, situated in the barrio of San Antonio, in the district of
hold it. Mandurriao, in the municipality of Iloilo. Judgment was rendered in
For the foregoing, and no error having been found in the judgment favor of the petitioner and the Government has appealed. A motion
appealed from, the same is hereby affirmed in all its parts, without for a new trial was made and denied in the court below, but no
special pronouncement as to costs. So ordered. 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:
 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 MALCOLM, J.:
not rules and regulations within the meaning of section 13. This is an appeal by the applicant and appellant from a judgment of
The judgment of the court below is affirmed, with the costs of this the Court of First Instance of Nueva Ecija, denying the registration
instance against the appellant. So ordered. 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.
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
#7 based on the provisions of the Spanish Mortgage Law and of the
Republic of the Philippines
 Royal Decree of February 13, 1894, commonly known as the Maura
SUPREME COURT
 Law. The Solicitor-General would emphasize that for land to come
Manila under the protective ægis of the Maura Law, it must have been
EN BANC shown that the land was cultivated for six years previously, and that
it was not land which pertained to the "zonas forestales." As proof
G.R. No. L-13298 November 19, 1918 that the land was, even as long ago as the years 1894 to 1896,
CORNELIO RAMOS, petitioner-appellant, 
 forestal and not agricultural in nature is the fact that there are yet
vs.
 found thereon trees from 50 to 80 years of age.
THE DIRECTOR OF LANDS, objector-appellee. We do not stop to decide this contention, although it might be
Basilio Aromin for appellant.
 possible, following the doctrine laid down by the United States
Office of the Solicitor-General Paredes for appellee. 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
Roland vs. 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.
The question at once arises: Is that actual occupancy of a part of the
Actual possession of land consists in the manifestation of acts of land described in the instrument giving color of title sufficient to
dominion over it of such a nature as a party would naturally exercise give title to the entire tract of land?lawphil.net
over his own property. Relative to actuality of possession, it is
admitted that the petitioner has cultivated only about one fourth of The doctrine of constructive possession indicates the answer. The
the entire tract. This is graphically portrayed by Exhibit 1 of the general rule is that the possession and cultivation of a portion of a
Government, following: 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 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 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 tree-growth, 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.
#8
Republic of the Philippines

SUPREME COURT

Manila
EN BANC
G.R. No. L-19535 July 10, 1967
HEIRS OF PELAGIO ZARA; PIO, CLEMENTE, SERAFIA,
PORFIRIO and ESTEBAN, all surnamed MINDANAO;
MARIA and GLICERIA, both surnamed SEDARIA; DULCE
CORDERO, VICTORIA DE LOS REYES and JOSE
GARCIA, applicants-appellants, 

vs.

DIRECTOR OF LANDS, DIRECTOR OF
FORESTRY, Government oppositor-appellees. 

VICENTE V. DE VILLA, JR., and VICENTE S. DE VILLA,
SR., private oppositors-appellees.
Jose L. Matias and H. A. Jambora for applicants-appellants.

Francisco Villanueva, Jr. and Gregorio L. Oquitania for private
oppositors-appellees.

Manuel Reyes Castro for oppositor-appellee Director of Forestry.
MAKALINTAL, J.:
Appeal from an order of the Court of First Instance of Batangas
(Lipa City) dismissing appellants' "application for registration of the
parcel of land consisting of 107 hectares, more or less, situated in the
barrio of Sampiro, Municipality of San Juan, Province of Batangas,
and designated in amended plan PSU-103696 as Lot A."
The proceedings in the court a quo are not disputed.
On August 4, 1960 appellants filed an application for registration of
the land above described pursuant to the provisions of Act 496. They
alleged that the land had been inherited by them from their
grandfather, Pelagio Zara, who in turn acquired the same under a
Spanish grant known as "Composicion de Terrenos Realengos"
issued in 1888. Alternatively, should the provisions of the Land
Registration Act be not applicable, applicants invoke the benefits of
the provisions of Chapter VIII, Section 48, subsection (b) of C.A.
141 as amended, on the ground that they and their predecessor-in-
interest had been in continuous and adverse possession of the land in
concept of owner for more than 30 years immediately preceding the
application.
Oppositions were filed by the Director of Lands, the Director of
Forestry and by Vicente V. de Villa, Jr. The latter's opposition recites:
x x x that the parcel of land sought to be registered by the
applicants consisting of 107 hectares, more or less, was
included in the area of the parcel of land applied for
registration by Vicente S. de Villa, Sr. in Civil Case No. 26,
L.R. Case No. 601 in this Court, which was decided by this
same Court through the then incumbent Judge, the
Honorable Juan P. Enriquez, on September 30, 1949; that the
parcel sought to be registered by the applicants was declared
public land in said decision; that they (the oppositors Vicente
V. de Villa, Jr. and Vicente S. de Villa, Sr.) have an interest
over the land in question because for a period more than
sixty (60) years, the de Villas have been in possession, and
which possession, according to them, was open continuous,
notorious and under the claim of ownership; that the
proceeding being in rem, the failure of the applicants to
appear at the case No. 26, L.R. Case No. 601 to prove their
imperfect and incomplete title over the property, barred them
from raising the same issue in another case; and that as far as
the decision in Civil Case No. 26, L.R. Case No. 601 which
was affirmed in the appellate court in CA-G.R. No. 5847-R
is concerned, there is already "res-adjudicata" — in other
words, the cause of action of the applicant is now barred by
prior judgment; and that this Court has no more jurisdiction
over the subject matter, the decision of the Court in said case
having transferred to the Director of Lands.
On November 15, 1960 the De Villas (De Villa, Sr. was subsequently
included as oppositor) filed a motion to dismiss, invoking the same
grounds alleged in its opposition, but principally the fact that the
land applied for had already been declared public land by the
judgment in the former registration case.
The trial court, over the objection of the applicants, granted the
motion to dismiss by order dated January 27, 1961, holding, inter
alia, that "once a parcel of land is declared or adjudged public land
by the court having jurisdiction x x x it cannot be the subject
anymore of another land registration proceeding x x x (that) it is only
the Director of Lands who can dispose of the same by sale, by lease,
by free patent or by homestead."
In the present appeal from the order of dismissal neither the Director
of Lands nor the Director of Forestry filed a brief as appellee. The
decisive issue posed by applicants-appellants is whether the 1949
judgment in the previous case, denying the application of Vicente S.
de Villa, Sr., and declaring the 107 hectares in question to be public
land, precludes a subsequent application by an alleged possessor for
judicial confirmation of title on the basis of continuous possession
for at least thirty years, pursuant to Section 48, subsection (b) of the
Public Land Law, C.A. 141, as amended. This provision reads as
follows:
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:
xxx xxx xxx
(b) Those who by themselves or through their predecessors
in interest 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 of
 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.
1äwphï1.ñët
The right to file an application under the foregoing provision has
been extended by Republic Act No. 2061 to December 31, 1968.
It should be noted that appellants' application is in the alternative: for
registration of their title of ownership under Act 496 or for judicial AGENCIES INVOLVED
confirmation of their "imperfect" title or claim based on adverse and #9
continuous possession for at least thirty years. It may be that
Republic of the Philippines

although they were not actual parties in that previous case the
SUPREME COURT

judgment therein is a bar to their claim as owners under the first
Manila
alternative, since the proceeding was in rem, of which they and their
predecessor had constructive notice by publication. Even so this is a EN BANC
defense that properly pertains to the Government, in view of the fact G.R. No. 167707 October 8, 2008
that the judgment declared the land in question to be public land. In
any case, appellants' imperfect possessory title was not disturbed or THE SECRETARY OF THE DEPARTMENT OF
foreclosed by such declaration, for precisely the proceeding ENVIRONMENT AND NATURAL RESOURCES, THE
contemplated in the aforecited provision of Commonwealth Act 141 REGIONAL EXECUTIVE DIRECTOR, DENR-REGION VI,
presupposes that the land is public. The basis of the decree of judicial REGIONAL TECHNICAL DIRECTOR FOR LANDS, LANDS
confirmation authorized therein is not that the land is already MANAGEMENT BUREAU, REGION VI PROVINCIAL
privately owned and hence no longer part of the public domain, but ENVIRONMENT AND NATURAL RESOURCES OFFICER
rather that by reason of the claimant's possession for thirty years he OF KALIBO, AKLAN, REGISTER OF DEEDS, DIRECTOR
is conclusively presumed to have performed all the conditions OF LAND REGISTRATION AUTHORITY, DEPARTMENT OF
essential to a Government grant. TOURISM SECRETARY, DIRECTOR OF PHILIPPINE
TOURISM AUTHORITY, petitioners, 

On the question of whether or not the private oppositors-appellees vs.

have the necessary personality to file an opposition, we find in their MAYOR JOSE S. YAP, LIBERTAD TALAPIAN, MILA Y.
favor, considering that they also claim to be in possession of the SUMNDAD, and ANICETO YAP, in their behalf and in behalf of
land, and have furthermore applied for its purchase from the Bureau all those similarly situated, respondents.
of Lands.1äwphï1.ñët


Wherefore, the order appealed from is set aside and the case is x----------------------------------------------
remanded to the Court a quo for trial and judgment on the merits, - - - - x

with costs against the private oppositors-appellees.
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, 
 named persons.7
vs.
 On November 10, 1978, then President Ferdinand Marcos issued
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
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 Macapagal-
Arroyo classifying Boracay into reserved forest and agricultural land.
The Antecedents
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 island’s
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
Proclamation No. 18018 declaring Boracay Island, among other
islands, caves and peninsulas in the Philippines, as tourist zones and
marine reserves under 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, respondents-
claimants 

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-of-way 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
R E S P E C T I V E A R E A S I N B O R A C AY, S I N C E T I M E
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 OWNERSHIP OVER 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 TITLE UNDER 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 (respondents-
claimants 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 dueño 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 Court’s 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
Petitioner’s 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 Attorney-
General 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 property’s 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
property’s land classification. Hence, private claimants cannot bank
on Act No. 926.
We note that the RTC decision 99 in G.R. No. 167707
mentioned Krivenko v. Register of Deeds of Manila,100which 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 in Krivenko 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 government’s 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
facto considered 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 island’s 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
the legal 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
Development’s 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 Macapagal-
Arroyo 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 nation’s 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 lumberman’s 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.
AGRICULTURAL LAND
#10
Republic of the Philippines

SUPREME COURT

Manila
EN BANC
G.R. No. L-3894 March 12, 1909
JUAN IBAÑEZ DE ALDECOA, petitioner-appellant, 

vs.

THE INSULAR GOVERNMENT, respondent-appellee.
Del-Pan, Ortigas and Fisher for appellant. 

Attorney-General Villamor for appellee.
TORRES, J.:
On the 8th of March, 1904, in accordance with the new Land
Registration Act, Juan Ibañez de Aldecoa applied for the registration
of his title to a parcel of land, 3,375 square meters in extent, situated
in the town of Surigao; a plan and technical description of said parcel
was attached to his application.
After the formalities of the law were complied with, and an opinion
of the examiner of titles opposing the request of the applicant, had
been rendered, the Attorney-General by a writing dated March 21,
1905, objected to the registration applied for, alleging that the land in
question was the property of the Government of the United States,
and is now under the control of the Insular Government; that the title
of ownership issued by the politico-militar governor of Surigao,
Mindanao, issued on the 19th of June, 1889, to Telesforo Ibañez de
Aldecoa, antecessor of the petitioner with respect to the land in
question, was entirely null and void, for the reason that said grant
had not been made in accordance with the laws then in force on the
subject, and because the said governor had no authority to make such
a grant; he prayed the court below to dismiss the application with
costs.
As the case stood the applicant, Aldecoa, on the 8th of April, 1905,
amended his former petition, and relying upon the provisions of
paragraph 5 and 6 of section 54 of Act No. 926, alleged that at the
time he requested the registration of the land in question, comprised
in the plan then submitted, the aforesaid Act No. 926 was not yet in
force, and as the latter affords better facilities for securing titles to
property unprovided with them, as in the case with the land in
question, the applicant availing himself of the benefits granted by the
said Act, prayed that the same be applied to the inscription of his
land, inasmuch as it was included within paragraphs 5 and 6 of
section 54, Chapter VI, thereof, and prayed the court to take into
consideration the amendment of his petition.
Evidence was adduced by the petitioner at the trial of the case, and
on February 2, 1907, the judge of the Court of Land Registration
entered his decision in the matter and, in view of the opposition
offered by the Insular Government denied the petition without costs,
and ordered the cancellation of the entry made of the said property in
the record under No. 408, folio 206 of volume 2 of the municipality
of Surigao.
The applicant excepted to this decision and moved for a new trial;
his motion was overruled to which he also excepted and presented
the corresponding bill of exceptions which was approved and
submitted to this court.
The question set up in these proceedings by virtue of the appeal
interposed by counsel for Juan Ibañez de Aldecoa, is whether or not a
parcel of land that is susceptible of being cultivated, and, ceasing to
be agricultural land, was converted into a building lot, is subject to
the legal provisions in force regarding Government public lands
which may be alienated in favor of private individuals or
corporations. While from the remote time of the conquest of this
Archipelago the occupation or material possession together with the
improvement and cultivation for a certain number of years, as fixed
by the laws of the Indies, of given portions of vacant Government
lands, was the method established by the Government to facilitate the
acquisition thereof by private persons, later, by the royal decrees of
June 25, 1880, and December 26, 1884, the system of composition
with the State and that of sales by public auction were instituted as
the means of acquiring such lands.
In view of the difficulties which prevented the rapid dispatch of the
proceedings instituted for this purpose, the royal decree of February
13, 1894, was promulgated, establishing the possessory information
as the method of legalizing possession of vacant Crown land, under
certain conditions which were set out in said decree.
After the change of sovereignty, the Commission enacted Act No.
926, relating to public lands, in accordance with the provisions of
sections 13, 14, and 15 of the Act of the Congress of the United
States of July 1, 1902, section 54, paragraph 6 of which (Act No.
926) is as follows:
SEC. 54. The following-described persons or their legal
successors in right, occupying public lands in the Philippine
Islands, or claiming to own any such lands or an interest
therein, but whose titles to such lands 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:
xxx xxx xxx
6. 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 a 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.
All applicants for lands under paragraph one, two, three,
four, and five of this section must establish by proper official
records or documents that such proceedings as are therein
required were taken and the necessary conditions complied
with: Provided, however, That such requirements shall not
apply to the fact of adverse possession.
Given the above legal provisions and the data contained in the
record, it is seen that the land, the registration of which is claimed,
was of the class of vacant crown or public land which the State could
alienate to private persons, and being susceptible of cultivation, since
at any time the person in possession desired to convert it into
agricultural land he might do so in the same manner that he had
made a building lot of it, it undoubtedly falls within the terms of the
said Act of Congress, as well as the provisions of the abovecited
section 54 and paragraph 6 thereof of Act No. 926, for the reason that
the said land is neither mining nor timber land.
We refrain from mentioning herein what originally was the nature of
the land whereon was built the greatest cities of the world; and
confining ourselves to that on which the cities and towns in these
Islands were erected, it can not be denied that, at the commencement
of the occupation of this Archipelago by the Spaniards, and at the
time of the distribution of lands, the latter were rural and agricultural
in their nature. Rural also were the old towns, the cradle and
foundation of the present cities and large towns of the Philippines,
and as the inhabitants increased, and added to the number of their
dwellings, the farms gradually became converted into town lots.
In provincial towns, and in the suburbs of Manila, many houses are
to be seen that are erected on lots that form part of land used for
agricultural purposes. If for the time being, and to the advantage of
the possessors thereof, they have ceased to be such agricultural
lands, they may later on again become transformed into farming land
and, by the industry of the owner, again be made to yield fruit.
Hence, any parcel of land or building lot is susceptible of cultivation,
and may be converted into a field, and planted with all kind of
vegetation; for this reason, where land is not mining or forestall in its
nature, it must necessarily be included within the classification of
agricultural land, not because it is actually used for the purposes of
agriculture, but because it was originally agricultural and may again
become so under other circumstances; besides, the Act of Congress
contains only three classifications, and makes no special provision
with respect to building lots or urban lands that have ceased to be
agricultural land.
In the decision rendered by this court in the case of Mapa vs. The
Insular Government, No. 3793 (10 Phil. Rep., 175), the legislation in
force was interpreted in a similar sense.
It is not to be believed that it was the sense of the two sovereign
powers that have successively promulgated the said laws, to place
those in possession of building lots under title of ownership in an
anomalous, uncertain and insecure position, rendering it impossible
for them to obtain legal titles to the lands appropriated by them, and
denying them the care and protection of the law to which they were
certainly entitled on account of the efforts they have made, both in
their behalf, and for the benefit of the cities and towns in which they
reside, contributing to the wealth and increase of the country.
In the case at bar we have to deal with laws that were enacted after
almost all the towns of this Archipelago were established, and it must
be assumed that the lawmakers have started from the supposition that
titles to the building lots within the confines of such towns had been
duly acquired; therefore, in special cases like the present one,
wherein is sought the registration of a lot situated within a town
created and acknowledged administratively, it is proper to apply
thereto the laws in force and classify it as agricultural land, inasmuch
as it was agricultural prior to its conversion into a building lot, and is
subject at any time to further rotation and cultivation; moreover, it
does not appear that it was ever mining or forest land.
It should be noted that article 1 of the royal decree and regulation of
the 25th of June, 1880, says: "In the Philippine Islands, all vacant
lands, soils, and grounds without a lawful private owner, or, which
have never been under private control, shall be deemed to be
alienable crown lands for the effects of the regulation, and in
accordance with law 14, title 12, book 4, of the Novísima
Recopilación;" that article 1 of the royal decree of the 14th of
February, 1894, states: "Vacant lands, soils, grounds, and mountains
in the Philippine Islands shall be deemed to be alienable Crown
lands, provided they are not included within the following
exceptions: (1) Those of private ownership; (2) those belonging to
the forest zone; (3) those comprised in the communal laws, or within
zones reserved for the use in common by residents of the
community; and (4) those lands which are susceptible of private
appropriation by means of composition or possessory information;"
and that although section 13 of the Act of Congress of July 1, 1902,
directs the Government of the Philippine Islands to classify public
lands that are neither forest nor mining lands according to their
agricultural character and productiveness, section 14 authorizes and
empowers the said Government "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, etc.;" and section 15 authorizes
and empowers the said Government of the Philippine Islands "on
such terms as it may prescribed, 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 on said Islands, as it may deem wise, etc."
From the language of the foregoing provisions of the law, it is
deduced that, with the exception of those comprised within the
mineral and timber zone, all lands owned by the State or by the
sovereign nation are public in character, and per se alienable and,
provided they are not destined to the use of the public in general or
reserved by the Government in accordance with law, they may be
acquired by any private or judicial person; and considering their
origin and primitive state and the general uses to which they were
accorded, they are called agricultural lands, urban lands or building
lots being included in this classification for the purpose of
distinguishing rural and urban estates from mineral and timber lands;
the transformation they may have undergone is no obstacle to such
classification as the possessors thereof may again convert them into
rural estates.
If the land sought to be registered is neither mineral nor timber land,
and on the other hand is susceptible of cultivation the Act of
Congress contains no provision whatever that would exclude it from
being classified as agricultural land, and assuming that it falls within
that classification, the benefits of paragraph 6, section 54, of Act No.
926, must forthwith be applied for the reason that it has been fully
proven that the applicant was in possession thereof for more than 13
years prior to the 26th of July, 1904, when the said Act went into
effect. Furthermore, there is no legal reason or cause to exclude
urban lands from the benefits of the aforesaid Act; on the contrary,
the interpretation that urban real estate, that is not mineral or forestall
in character, be understood to fall within the classification of
agricultural land, is deemed to be most rational and beneficial to
public interests.
Therefore, in view of the foregoing, it is our opinion that the
judgment appealed from should be reversed, and that it should be, as
it is, hereby ordered, that, after holding in general default all such
persons as may have any interest in the said parcel of land, the
registration of the same shall be granted in accordance with the Land
Registration Act. No special ruling is made as to costs. So ordered.
#11
Republic of the Philippines

SUPREME COURT

Manila
EN BANC
G.R. No. L-630 November 15, 1947
ALEXANDER A. KRIVENKO, petitioner-appellant, 

vs.

THE REGISTER OF DEEDS, CITY OF MANILA, respondent
and appellee.
Gibbs, Gibbs, Chuidian and Quasha of petitioner-appellant.

First Assistant Solicitor General Reyes and Solicitor Carreon for
respondent-appellee.

Marcelino Lontok appeared as amicus curies.
MORAN, C.J.:
Alenxander A. Kriventor alien, bought a residential lot from the
Magdalena Estate, Inc., in December of 1941, the registration of
which was interrupted by the war. In May, 1945, he sought to
accomplish said registration but was denied by the register of deeds
of Manila on the ground that, being an alien, he cannot acquire land
in this jurisdiction. Krivenko then brought the case to the fourth
branch of the Court of First Instance of Manila by means of
a consulta, and that court rendered judgment sustaining the refusal of
the register of deeds, from which Krivenko appealed to this Court.
There is no dispute as to these facts. The real point in issue is
whether or not an alien under our Constitution may acquire
residential land.
It is said that the decision of the case on the merits is unnecessary,
there being a motion to withdraw the appeal which should have been
granted outright, and reference is made to the ruling laid down by
this Court in another case to the effect that a court should not pass
upon a constitutional question if its judgment may be made to rest
upon other grounds. There is, we believe, a confusion of ideas in this
reasoning. It cannot be denied that the constitutional question is
unavoidable if we choose to decide this case upon the merits. Our
judgment cannot to be made to rest upon other grounds if we have to
render any judgment at all. And we cannot avoid our judgment
simply because we have to avoid a constitutional question. We
cannot, for instance, grant the motion withdrawing the appeal only
because we wish to evade the constitutional; issue. Whether the
motion should be, or should not be, granted, is a question involving
different considerations now to be stated.
According to Rule 52, section 4, of the Rules of Court, it is
discretionary upon this Court to grant a withdrawal of appeal after
the briefs have been presented. At the time the motion for withdrawal
was filed in this case, not only had the briefs been prensented, but the
case had already been voted and the majority decision was being
prepared. The motion for withdrawal stated no reason whatsoever,
and the Solicitor General was agreeable to it. While the motion was
pending in this Court, came the new circular of the Department of
Justice, instructing all register of deeds to accept for registration all
transfers of residential lots to aliens. The herein respondent-appellee
was naturally one of the registers of deeds to obey the new circular,
as against his own stand in this case which had been maintained by
the trial court and firmly defended in this Court by the Solicitor
General. If we grant the withdrawal, the the result would be that
petitioner-appellant Alexander A. Krivenko wins his case, not by a
decision of this Court, but by the decision or circular of the
Department of Justice, issued while this case was pending before this
Court. Whether or not this is the reason why appellant seeks the
withdrawal of his appeal and why the Solicitor General readily
agrees to that withdrawal, is now immaterial. What is material and
indeed very important, is whether or not we should allow
interference with the regular and complete exercise by this Court of
its constitutional functions, and whether or not after having held long
deliberations and after having reached a clear and positive conviction
as to what the constitutional mandate is, we may still allow our
conviction to be silenced, and the constitutional mandate to be
ignored or misconceived, with all the harmful consequences that
might be brought upon the national patromony. For it is but natural
that the new circular be taken full advantage of by many, with the
circumstance that perhaps the constitutional question may never
come up again before this court, because both vendors and vendees
will have no interest but to uphold the validity of their transactions,
and very unlikely will the register of deeds venture to disobey the
orders of their superior. Thus, the possibility for this court to voice its
conviction in a future case may be remote, with the result that our
indifference of today might signify a permanent offense to the
Constitution.
All thse circumstances were thoroughly considered and weighted by
this Court for a number of days and the legal result of the last vote
was a denial of the motion withdrawing the appeal. We are thus
confronted, at this stage of the proceedings, with our duty, the
constitutional question becomes unavoidable. We shall then proceed
to decide that question.
Article XIII, section 1, of the Constitutional is as follows:
Article XIII. — Conservation and utilization of natural
resources.
SECTION 1. All agricultural, timber, and mineral lands of
the public domain, water, 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
inaguration of the Government established uunder this
Constitution. Natural resources, with the exception of public
agricultural land, shall not be alienated, and no licence,
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 scope of this constitutional provision, according to its heading
and its language, embraces all lands of any kind of the public
domain, its purpose being to establish a permanent and fundamental
policy for the conservation and utilization of all natural resources of
the Nation. When, therefore, this provision, with reference to lands
of the public domain, makes mention of only agricultural, timber and
mineral lands, it means that all lands of the public domain are
classified into said three groups, namely, agricultural, timber and
mineral. And this classification finds corroboration in the
circumstance that at the time of the adoption of the Constitution, that
was the basic classification existing in the public laws and judicial
decisions in the Philippines, and the term "public agricultural lands"
under said classification had then acquired a technical meaning that
was well-known to the members of the Constitutional Convention
who were mostly members of the legal profession.
As early as 1908, in the case of Mapa vs. Insular Government (10
Phil., 175, 182), this Court said that the phrase "agricultural public
lands" as defined in the Act of Congress of July 1, 1902, which
phrase is also to be found in several sections of the Public Land Act
(No. 926), means "those public lands acquired from Spain which are
neither mineral for timber lands." This definition has been followed
in long line of decisions of this Court. (See Montano vs. Insular
Government, 12 Phil., 593; Ibañez de Aldecoa vs. Insular
Government, 13 Phil., 159; Ramos vs. Director of Lands, 39 Phil.,
175; Jocson vs. Director of Forestry, 39 Phil., 560;
Ankron vs. Government of the Philippines, 40 Phil., 10.) And with
respect to residential lands, it has been held that since they are
neither mineral nor timber lands, of necessity they must be classified
as agricultural. In Ibañez de Aldecoa vs. Insular Government (13
Phil., 159, 163), this Court said:
Hence, any parcel of land or building lot is susceptible of
cultivation, and may be converted into a field, and planted
with all kinds of vegetation; for this reason, where land is
not mining or forestal in its nature, it must necessarily be
included within the classification of agricultural land, not
because it is actually used for the purposes of agriculture, but
because it was originally agricultural and may again become
so under other circumstances; besides, the Act of Congress
contains only three classification, and makes no special
provision with respect to building lots or urban lands that
have ceased to be agricultural land.
In other words, the Court ruled that in determining whether a parcel
of land is agricultural, the test is not only whether it is actually
agricultural, but also its susceptibility to cultivation for agricultural
purposes. But whatever the test might be, the fact remains that at the
time the Constitution was adopted, lands of the public domain were
classified in our laws and jurisprudence into agricultural, mineral,
and timber, and that the term "public agricultural lands" was
construed as referring to those lands that were not timber or mineral,
and as including residential lands. It may safely be presumed,
therefore, that what the members of the Constitutional Convention
had in mind when they drafted the Constitution was this well-known
classification and its technical meaning then prevailing.
Certain expressions which appear in Constitutions, . . . are
obviously technical; and where such words have been in use
prior to the adoption of a Constitution, it is presumed that its
framers and the people who ratified it have used such
expressions in accordance with their technical meaning. (11
Am. Jur., sec. 66, p. 683.) Also Calder vs. Bull, 3 Dall.
[U.S.], 386; 1 Law. ed., 648; Bronson vs. Syverson, 88
Wash., 264; 152 P., 1039.)
It is a fundamental rule that, in construing constitutions,
terms employed therein shall be given the meaning which
 had been put upon them, and which they possessed, at the
time of the framing and adoption of the instrument. If a word
has acquired a fixed, technical meaning in legal and
constitutional history, it will be presumed to have been
employed in that sense in a written Constitution.
(McKinney vs. Barker, 180 Ky., 526; 203 S.W., 303; L.R.A.,
1918 E, 581.)
Where words have been long used in a technical sense and
have been judicially construed to have a certain meaning,
and have been adopted by the legislature as having a certain
meaning prior to a particular statute in which they are used,
the rule of construction requires that the words used in such
statute should be construed according to the sense in which
they have been so previously used, although the sense may
vary from strict literal meaning of the words. (II Sutherland,
Statutory Construction, p. 758.)
Therefore, the phrase "public agricultural lands" appearing in section
1 of Article XIII of the Constitution must be construed as including
residential lands, and this is in conformity with a legislative
interpretation given after the adoption of the Constitution. Well
known is the rule that "where the Legislature has revised a statute
after a Constitution has been adopted, such a revision is to be
regarded as a legislative construction that the statute so revised
conforms to the Constitution." (59 C.J., 1102.) Soon after the
Constitution was adopted, the National Assembly revised the Public
Land Law and passed Commonwealth Act No. 141, and sections 58,
59 and 60 thereof permit the sale of residential lots to Filipino
citizens or to associations or corporations controlled by such citizens,
which is equivalent to a solemn declaration that residential lots are
considered as agricultural lands, for, under the Constitution, only
agricultural lands may be alienated.
It is true that in section 9 of said Commonwealth Act No. 141,
"alienable or disposable public lands" which are the same "public
agriculture lands" under the Constitution, are classified into
agricultural, residential, commercial, industrial and for other
puposes. This simply means that the term "public agricultural lands"
has both a broad and a particular meaning. Under its broad or general
meaning, as used in the Constitution, it embraces all lands that are
neither timber nor mineral. This broad meaning is particularized in
section 9 of Commonwealth Act No. 141 which classifies "public
agricultural lands" for purposes of alienation or disposition, into
lands that are stricly agricultural or actually devoted to cultivation
for agricultural puposes; lands that are residential; commercial;
industrial; or lands for other purposes. The fact that these lands are
made alienable or disposable under Commonwealth Act No. 141, in
favor of Filipino citizens, is a conclusive indication of their character
as public agricultural lands under said statute and under the
Constitution.
It must be observed, in this connection that prior to the Constitution,
under section 24 of Public Land Act No. 2874, aliens could acquire
public agricultural lands used for industrial or residential puposes,
but after the Constitution and under section 23 of Commonwealth
Act No. 141, the right of aliens to acquire such kind of lands is
completely stricken out, undoubtedly in pursuance of the
constitutional limitation. And, again, prior to the Constitution, under
section 57 of Public Land Act No. 2874, land of the public domain
suitable for residence or industrial purposes could be sold or leased
to aliens, but after the Constitution and under section 60 of
Commonwealth Act No. 141, such land may only be leased, but not
sold, to aliens, and the lease granted shall only be valid while the
land is used for the purposes referred to. The exclusion of sale in the
new Act is undoubtedly in pursuance of the constitutional limitation,
and this again is another legislative construction that the term "public
agricultural land" includes land for residence purposes.
Such legislative interpretation is also in harmony with the
interpretation given by the Executive Department of the
Government. Way back in 1939, Secretary of Justice Jose Abad
Santos, in answer to a query as to "whether or not the phrase 'public
agricultural lands' in section 1 of Article XII (now XIII) of the
Constitution may be interpreted to include residential, commercial,
and industrial lands for purposes of their disposition," rendered the
following short, sharp and crystal-clear opinion:
Section 1, Article XII (now XIII) of the Constitution
classifies lands of the public domain in the Philippines into
 agricultural, timber and mineral. This is the basic
classification adopted since the enactment of the Act of
Congress of July 1, 1902, known as the Philippine Bill. At
the time of the adoption of the Constitution of the
Philippines, the term 'agricultural public lands' and,
therefore, acquired a technical meaning in our public laws.
The Supreme Court of the Philippines in the leading case
of Mapa vs. Insular Government, 10 Phil., 175, held that the
phrase 'agricultural public lands' means those public lands
acquired from Spain which are neither timber nor mineral
lands. This definition has been followed by our Supreme
Court in many subsequent case. . . .
Residential commercial, or industrial lots forming part of the
public domain must have to be included in one or more of
these classes. Clearly, they are neither timber nor mineral, of
necessity, therefore, they must be classified as agricultural.
Viewed from another angle, it has been held that in
determining whether lands are agricultural or not, the
character of the land is the test (Odell vs. Durant, 62 N.W.,
524; Lorch vs. Missoula Brick and Tile Co., 123 p.25). In
other words, it is the susceptibility of the land to cultivation
for agricultural purposes by ordinary farming methods which
determines whether it is agricultural or not (State vs. Stewart,
190 p. 129).
Furthermore, as said by the Director of Lands, no reason is
seen why a piece of land, which may be sold to a person if
he is to devote it to agricultural, cannot be sold to him if he
intends to use it as a site for his home.
This opinion is important not alone because it comes from a
Secratary of Justice who later became the Chief Justice of this Court,
but also because it was rendered by a member of the cabinet of the
late President Quezon who actively participated in the drafting of the
constitutional provision under consideration. (2 Aruego, Framing of
the Philippine Constitution, p. 598.) And the opinion of the Quezon
administration was reiterated by the Secretary of Justice under the
Osmeña administration, and it was firmly maintained in this Court by
the Solicitor General of both administrations.
It is thus clear that the three great departments of the Government —
judicial, legislative and executive — have always maintained that
lands of the public domain are classified into agricultural, mineral
and timber, and that agricultural lands include residential lots.
Under section 1 of Article XIII of the Constitution, "natural
resources, with the exception of public agricultural land, shall not be
aliented," and with respect to public agricultural lands, their
alienation is limited to Filipino citizens. But this constitutional
purpose conserving agricultural resources in the hands of Filipino
citizens may easily be defeated by the Filipino citizens themselves
who may alienate their agricultural lands in favor of aliens. It is
partly to prevent this result that section 5 is included in Article XIII,
and it reads as follows:
Sec. 5. Save in cases of hereditary succession, no private
agricultural land will be transferred or assigned except to
individuals, corporations, or associations qualified to acquire
or hold lands of the public domain in the Philippines.
This constitutional provision closes the only remaining avenue
through which agricultural resources may leak into aliens' hands. It
would certainly be futile to prohibit the alienation of public
agricultural lands to aliens if, after all, they may be freely so
alienated upon their becoming private agricultural lands in the hands
of Filipino citizens. Undoubtedly, as above indicated, section 5 is
intended to insure the policy of nationalization contained in section
1. Both sections must, therefore, be read together for they have the
same purpose and the same subject matter. It must be noticed that the
persons against whom the prohibition is directed in section 5 are the
very same persons who under section 1 are disqualified "to acquire
or hold lands of the public domain in the Philippines." And the
subject matter of both sections is the same, namely, the non-
transferability of "agricultural land" to aliens. Since "agricultural
land" under section 1 includes residential lots, the same technical
meaning should be attached to "agricultural land under section 5. It is
a rule of statutory construction that "a word or phrase repeated in a
statute will bear the same meaning throughout the statute, unless a
different intention appears." (II Sutherland, Statutory Construction,
p. 758.) The only difference between "agricultural land" under
section 5, is that the former is public and the latter private. But such
difference refers to ownership and not to the class of land. The lands
are the same in both sections, and, for the conservation of the
national patrimony, what is important is the nature or class of the
property regardless of whether it is owned by the State or by its
citizens.
Reference is made to an opinion rendered on September 19, 1941, by
the Hon. Teofilo Sison, then Secretary of Justice, to the effect that
residential lands of the public domain may be considered as
agricultural lands, whereas residential lands of private ownership
cannot be so considered. No reason whatsoever is given in the
opinion for such a distinction, and no valid reason can be adduced
for such a discriminatory view, particularly having in mind that the
purpose of the constitutional provision is the conservation of the
national patrimony, and private residential lands are as much an
integral part of the national patrimony as the residential lands of the
public domain. Specially is this so where, as indicated above, the
prohibition as to the alienable of public residential lots would
become superflous if the same prohibition is not equally applied to
private residential lots. Indeed, the prohibition as to private
residential lands will eventually become more important, for time
will come when, in view of the constant disposition of public lands
in favor of private individuals, almost all, if not all, the residential
lands of the public domain shall have become private residential
lands.
It is maintained that in the first draft of section 5, the words "no land
of private ownership" were used and later changed into "no
agricultural land of private ownership," and lastly into "no private
agricultural land" and from these changes it is argued that the word
"agricultural" introduced in the second and final drafts was intended
to limit the meaning of the word "land" to land actually used for
agricultural purposes. The implication is not accurate. The wording
of the first draft was amended for no other purpose than to clarify
concepts and avoid uncertainties. The words "no land" of the first
draft, unqualified by the word "agricultural," may be mistaken to
include timber and mineral lands, and since under section 1, this kind
of lands can never be private, the prohibition to transfer the same
would be superfluous. Upon the other hand, section 5 had to be
drafted in harmony with section 1 to which it is supplementary, as
above indicated. Inasmuch as under section 1, timber and mineral
lands can never be private, and the only lands that may become
private are agricultural lands, the words "no land of private
ownership" of the first draft can have no other meaning than "private
agricultural land." And thus the change in the final draft is merely
one of words in order to make its subject matter more specific with a
view to avoiding the possible confusion of ideas that could have
arisen from the first draft.
If the term "private agricultural lands" is to be construed as not
including residential lots or lands not strictly agricultural, the result
would be that "aliens may freely acquire and possess not only
residential lots and houses for themselves but entire subdivisions,
and whole towns and cities," and that "they may validly buy and hold
in their names lands of any area for building homes, factories,
industrial plants, fisheries, hatcheries, schools, health and vacation
resorts, markets, golf courses, playgrounds, airfields, and a host of
other uses and purposes that are not, in appellant's words, strictly
agricultural." (Solicitor General's Brief, p. 6.) That this is obnoxious
to the conservative spirit of the Constitution is beyond question.
One of the fundamental principles underlying the provision of Article
XIII of the Constitution and which was embodied in the report of the
Committee on Nationalization and Preservation of Lands and other
Natural Resources of the Constitutional Convention, is "that lands,
minerals, forests, and other natural resources constitute the exclusive
heritage of the Filipino nation. They should, therefore, be preserved
for those under the sovereign authority of that nation and for their
posterity." (2 Aruego, Framing of the Filipino Constitution, p. 595.)
Delegate Ledesma, Chairman of the Committee on Agricultural
Development of the Constitutional Convention, in a speech delivered
in connection with the national policy on agricultural lands, said:
"The exclusion of aliens from the privilege of acquiring public
agricultural lands and of owning real estate is a necessary part of
the Public Land Laws of the Philippines to keep pace with the idea of
preserving the Philippines for the Filipinos." (Emphasis ours.) And,
of the same tenor was the speech of Delegate Montilla who
said: "With the complete nationalization of our lands and natural
resources it is to be understood that our God-given birthright should
be one hundred per cent in Filipino hands . . .. Lands and natural
resources are immovables and as such can be compared to the vital
organs of a person's body, the lack of possession of which may cause
instant death or the shortening of life. If we do not completely
antionalize these two of our most important belongings, I am afraid
that the time will come when we shall be sorry for the time we were
born. Our independence will be just a mockery, for what kind of
independence are we going to have if a part of our country is not in
our hands but in those of foreigners?" (Emphasis ours.) Professor
Aruego says that since the opening days of the Constitutional
Convention one of its fixed and dominating objectives was the
conservation and nationalization of the natural resources of the
country. (2 Aruego, Framing of the Philippine Constitution, p 592.)
This is ratified by the members of the Constitutional Convention
who are now members of this Court, namely, Mr. Justice Perfecto,
Mr. Justice Briones, and Mr. Justice Hontiveros. And, indeed, if
under Article XIV, section 8, of the Constitution, an alien may not
even operate a small jitney for hire, it is certainly not hard to
understand that neither is he allowed to own a pieace of land.
This constitutional intent is made more patent and is strongly
implemented by an act of the National Assembly passed soon after
the Constitution was approved. We are referring again to
Commonwealth Act No. 141. Prior to the Constitution, there were in
the Public Land Act No. 2874 sections 120 and 121 which granted
aliens the right to acquire private only by way of reciprocity. Said
section reads as follows:
SEC. 120. No land originally acquired in any manner under
the provisions of this Act, nor any permanent improvement
on such land, shall be encumbered, alienated, or transferred,
except to persons, corporations, associations, or partnerships
who may acquire lands of the public domain under this Act;
to corporations organized in the Philippine Islands
authorized therefor by their charters, and, upon express
authorization by the Philippine Legislature, to citizens of
countries the laws of which grant to citizens of the
Philippine Islands the same right to acquire, hold, lease,
encumber, dispose of, or alienate land, or permanent
improvements thereon, or any interest therein, as to their
own citizens, only in the manner and to the extent specified
in such laws, and while the same are in force but not
thereafter.
SEC. 121. No land originally acquired in any manner under
the provisions of the former Public Land Act or of any other
Act, ordinance, royal order, royal decree, or any other
provision of law formerly in force in the Philippine Islands
with regard to public lands, terrenos baldios y realengos, or
lands of any other denomination that were actually or
presumptively of the public domain or by royal grant or in
any other form, nor any permanent improvement on such
land, shall be encumbered, alienated, or conveyed, except to
persons, corporations, or associations who may acquire land
of the public domain under this Act; to corporate bodies
organized in the Philippine Islands whose charters may
authorize them to do so, and, upon express authorization by
the Philippine Legislature, to citizens of the countries the
laws of which grant to citizens of the Philippine Islands the
same right to acquire, hold, lease, encumber, dispose of, or
alienate land or pemanent improvements thereon or any
interest therein, as to their own citizens, and only in the
manner and to the extent specified in such laws, and while
the same are in force, but not thereafter: Provided, however,
That this prohibition shall not be applicable to the
conveyance or acquisition by reason of hereditary succession
duly acknowledged and legalized by competent courts, nor
to lands and improvements acquired or held for industrial or
residence purposes, while used for such purposes: Provided,
further, That in the event of the ownership of the lands and
improvements mentioned in this section and in the last
preceding section being transferred by judicial decree to
persons,corporations or associations not legally capacitated
to acquire the same under the provisions of this Act, such
persons, corporations, or associations shall be obliged to
alienate said lands or improvements to others so capacitated
within the precise period of five years, under the penalty of
such property reverting to the Government in the contrary
case." (Public Land Act, No. 2874.)
It is to be observed that the pharase "no land" used in these section
refers to all private lands, whether strictly agricultural, residential or
otherwise, there being practically no private land which had not been
acquired by any of the means provided in said two sections.
Therefore, the prohibition contained in these two provisions was, in
effect, that no private land could be transferred to aliens except
"upon express authorization by the Philippine Legislature, to citizens
of Philippine Islands the same right to acquire, hold, lease,
encumber, dispose of, or alienate land." In other words, aliens were
granted the right to acquire private land merely by way of
reciprocity. Then came the Constitution and Commonwealth Act No.
141 was passed, sections 122 and 123 of which read as follows:
SEC. 122. No land originally acquired in any manner under
the provisions of this Act, nor any permanent improvement
on such land, shall be encumbered, alienated, or transferred,
except to persons, corporations, associations, or partnerships
who may acquire lands of the public domain under this Act
or to corporations organized in the Philippines authorized
thereof by their charters.
SEC. 123. No land originally acquired in any manner under
the provisions of any previous Act, ordinance, royal order,
royal decree, or any other provision of law formerly in force
in the Philippines with regard to public lands terrenos
baldios y realengos, or lands of any other denomination that
were actually or presumptively of the public domain, or by
royal grant or in any other form, nor any permanent
improvement on such land, shall be encumbered, alienated,
or conveyed, except to persons, corporations or associations
who may acquire land of the public domain under this Act or
to corporate bodies organized in the Philippines whose
charters authorize them to do so: Provided, however, That
this prohibition shall not be applicable to the conveyance or
acquisition by reason of hereditary succession duly
acknowledged and legalized by competent courts: Provided,
further, That in the event of the ownership of the lands and
improvements mentioned in this section and in the last
preceding section being transferred by judicial decree to
persons, corporations or associations not legally capacitated
to acquire the same under the provisions of this Act, such
persons, corporations, or associations shall be obliged to
alienate said lands or improvements to others so capacitated
within the precise period of five years; otherwise, such
property shall revert to the Government.
These two sections are almost literally the same as sections 120 and
121 of Act No. 2874, the only difference being that in the new
provisions, the right to reciprocity granted to aliens is completely
stricken out. This, undoubtedly, is to conform to the absolute policy
contained in section 5 of Article XIII of the Constitution which, in
prohibiting the alienation of private agricultural lands to aliens,
grants them no right of reciprocity. This legislative construction
carries exceptional weight, for prominent members of the National
Assembly who approved the new Act had been members of the
Constitutional Convention.
It is said that the lot question does not come within the purview of
sections 122 and 123 of Commonwealth Act No. 141, there being no
proof that the same had been acquired by one of the means provided
in said provisions. We are not, however, diciding the instant case
under the provisions of the Public Land Act, which have to refer to
land that had been formerly of the public domain, otherwise their
constitutionality may be doubtful. We are deciding the instant case
under section 5 of Article XIII of the Constitution which is more
comprehensive and more absolute in the sense that it prohibits the
transfer to alien of any private agricultural land including residential
land whatever its origin might have been.
And, finally, on June 14, 1947, the Congress approved Republic Act
No. 133 which allows mortgage of "private real property" of any
kind in favor of aliens but with a qualification consisting of expressly
prohibiting aliens to bid or take part in any sale of such real property
as a consequence of the mortgage. This prohibition makes no
distinction between private lands that are strictly agricultural and
private lands that are residental or commercial. The prohibition
embraces the sale of private lands of any kind in favor of aliens,
which is again a clear implementation and a legislative interpretation
of the constitutional prohibition. Had the Congress been of opinion
that private residential lands may be sold to aliens under the
Constitution, no legislative measure would have been found
necessary to authorize mortgage which would have been deemed
also permissible under the Constitution. But clearly it was the
opinion of the Congress that such sale is forbidden by the
Constitution and it was such opinion that prompted the legislative
measure intended to clarify that mortgage is not within the
constitutional prohibition.
It is well to note at this juncture that in the present case we have no
choice. We are construing the Constitution as it is and not as we may
desire it to be. Perhaps the effect of our construction is to preclude
aliens, admitted freely into the Philippines from owning sites where
they may build their homes. But if this is the solemn mandate of the
Constitution, we will not attempt to compromise it even in the name
of amity or equity. We are satisfied, however, that aliens are not
completely excluded by the Constitution from the use of lands for
residential purposes. Since their residence in the Philippines is
temporary, they may be granted temporary rights such as a lease
contract which is not forbidden by the Constitution. Should they
desire to remain here forever and share our fortunes and misfortunes,
Filipino citizenship is not impossible to acquire.
For all the foregoing, we hold that under the Constitution aliens may
not acquire private or public agricultural lands, including residential
lands, and, accordingly, judgment is affirmed, without costs.
ANCESTRAL DOMAIN
#12
Republic of the Philippines

SUPREME COURT

Manila
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 DAYA-
MELINDA 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.
 likewise filed a Motion to Intervene and/or to Appear as Amicus
COMMISSION ON HUMAN RIGHTS, intervenor.
 Curiae. The CHR asserts that IPRA is an expression of the principle
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)
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 State’s 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;
(5) Section 8 which recognizes and enumerates the rights of the
indigenous peoples over the ancestral lands;
"(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
vest on the NCIP the sole authority to delineate ancestral
domains and 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;
"(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 President’s 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 State’s 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.
 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) Cariño v. Insular Government
(b) Indian Title to land
(c) Why the Cariño 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 regalia is 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.
B. Valenton v. Murciano
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
Islands should follow strictly the Laws of the Indies,
the Ordenanza of the Intendentes of 1786, and the Royal Cedula of
1754.11
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 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
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
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 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
Thus, the 1935 Constitution, in Section 1 of Article XIII on
"Conservation and Utilization of Natural Resources," reads as
follows:
"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 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.
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
non-member 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 Peoples-
refer to a group of people or homogeneous 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. 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
Tawi-Tawi, 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 1935 Constitution did not carry any policy on the non-
Christian Filipinos. The raging issue then was the conservation
of the national patrimony for the Filipinos.
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 the Commission 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
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.
86 Knowledge 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 State shall consider the customs, traditions, beliefs, and
interests of national cultural communities in the formulation and
implementation of State policies."88
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
self-government 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
individually-owned 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.104Moreover, 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 land-
include 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 Cariño v. Insular
Government where:
"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 Cariño, 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 well-
preserved 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 Cariño 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.
I V. T H E P R O V I S I O N S O F T H E I P R A D O N O T
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."
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
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 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.
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
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) by native 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 thus indisputably 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
ancestral domains (which also include ancestral lands) by virtue of
native title shall be recognized and respected.127 Formal 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) Cariño v. Insular Government129
The concept of native title in the IPRA was taken from the 1909 case
of Cariño v. Insular Government.130Cariño firmly established a
concept of private land title that existed irrespective of any royal
grant from the State.
In 1903, Don Mateo Cariño, 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. Cariño 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.131 In 1901, Cariño 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 Cariño,
off the land.134
In 1904, the land registration court granted Cariño'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
Cariño's application. The Philippine Supreme Court135 affirmed the
C.F.I. by applying the Valenton ruling. Cariño took the case to the
U.S. Supreme Court.136 On one hand, the Philippine government
invoked the Regalian doctrine and contended that Cariño 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. Cariño, 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 Cariño 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
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."
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 exist that owed nothing to
the powers of Spain beyond this recognition in their
books." (Emphasis supplied).141
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."
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 Cariño and ordered the
registration of the 148 hectares in Baguio Municipality in his
name.144
Examining Cariño 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 Cariño decision. 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 Cariño extensively and used the term "native title" to refer
to Cariño'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 Cariño "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
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 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
Holland- did 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.
171 But 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
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
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
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-à-vis American Jurisprudence on
aboriginal title will depend on the peculiar facts of each case.
(c) Why the Cariño doctrine is unique
In the Philippines, the concept of native title first upheld
in Cariño 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. Cariño is the only case
that specifically and categorically recognizes native title. The
long line of cases citing Cariño did not touch on native title and
the private character of ancestral domains and lands. Cariño 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 Lands192 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 Cariño was cited to
support the applicant's claim of acquisitive prescription under the
said Act.
All these years, Cariño 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 that ancestral 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 individually-
owned 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 the civil 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-
in-interest 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
1. The Indigenous Concept of Ownership and Customary Law.
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 co-
ownership 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 may be destructive not only of customary law of the
community but of the very community itself.212
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
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 non-
member 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 ancestral lands,
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 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,
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,
224 joint 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 production-
sharing, 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
includes ownership, 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 a
ll 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 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;"
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 large-scale.
(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 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."
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
non-member 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.
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.
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
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 non-ICC/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.
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.
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 anti-
imperialism 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 anti-
racism 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 co-existence 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.
SEPARATE OPINION
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.)
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 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 been confiscated, occupied, used
or damaged without the free and informed consent of the indigenous
peoples.
A Historical Backdrop on the Indigenous Peoples
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
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 mother-
tongue, 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 citizen’s and
taxpayer’s 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:
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
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 Tañada v. Tuvera,44 the Court enforced the "public right" to due
process and to be informed of matters of public concern.
In Garcia vs. Board of Investments,45 the Court upheld the "public
right" to be heard or consulted on matters of national concern.
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 nation’s constitutional history, is solemnly incorporated in the
fundamental law."47Mr. Justice (now Chief Justice) Hilario G.
Davide, Jr., delivering the opinion of the Court, stated that:
Such a right belongs to a different category of rights altogether for it
concerns nothing less than self-preservation and self-perpetuation-
aptly 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 citizen’s 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 taxpayer’s 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 entity’s or person’s 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
country’s 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
Court’s 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 Court’s 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 Court’s time and attention
which are better devoted to those matters within its exclusive
jurisdiction, and to prevent further over-crowding of the Court’s
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 Court’s
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 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.
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 Cariño 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 Cariño 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 Cariño 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 Cariño, an Igorot by the name of Mateo Cariño 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.
Cariño 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 Cariño 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 Court’s ruling
in Cariño 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 Cariño was transferred from
the State, as original owner, to Cariño by virtue of prescription. They
conclude that the doctrine cannot be the basis for decreeing "by mere
legislative fiat…that ownership of vast tracts of land belongs to
[indigenous peoples] without judicial confirmation."81
The Solicitor General, for his part, claims that the Cariño 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 Cariño 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 General’s thesis that
native title under Cariño applies 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 Cariño 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 Cariño 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 Recopilación 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 Cariño 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 latter’s
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, McKinley’s 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.
xxx
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 General’s 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 not part 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 Cariño 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; and Section 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 Davide’s 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 State’s
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 State’s 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 latter’s 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 State’s 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 country’s 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
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 co-
production, 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
In addition to the means of exploration, development and utilization
of the country’s 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 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 State’s
direct participation.
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.
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 people’s 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 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 the exploration 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 co-
production, 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 1995 161 already 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.166 Hence, 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,170 including 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 person’s
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,179and 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 President’s 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 President’s
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 NCIP’s 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 quasi-
judicial 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 President’s 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 President’s approval in obtaining loans to
finance its projects;189 (2) it must obtain the President’s 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.192 The 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
State’s 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 Cariño 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 President’s 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 President’s 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.
BUREAUCRATIC CONSTRAINTS IN CLASSIFICATION OF
LANDS
#13
Republic of the Philippines
 under the operation of Act 141, Act 946 and/or P.D.
SUPREME COURT
 1529, otherwise known as the Property Registration
Manila
FIRST DIVISION
G.R. No. 137887 February 28, 2000
REPUBLIC OF THE PHILIPPINES, petitioner, vs. DAMIAN
ERMITAO DE GUZMAN, DEOGRACIAS ERMITAO DE
GUZMAN, ZENAIDA ERMITAO DE GUZMAN, ALICIA
ERMITAO DE GUZMAN, SALVADOR ERMITAO DE
GUZMAN, DOMINGA ERMITAON, NATIVIDAD
ENCARNACION, MELBA E. TORRES, FLORA MANALO,
SOCORRO DELA ROSA, JOSE ERMITAO, ESMERANDO
ERMITAO, TRICOM DEVELOPMENT CORPORATION and
FILOMENO ERMITAO, respondents.
DECISION
YNARES_SANTIAGO, J.:
Before us is a Petition for Review on Certiorari of a decision of the
Court of Appeals[1] affirming the judgment of the Regional Trial
Court of Tagaytay, Branch 18, in LRC Cases No. TG-362 and
TG-396.[2]
The facts are simple:
Conflicting applications for confirmation of imperfect title were filed
by Norma Almanzor and private respondent Salvador De Guzman
over parcels of land located in Silang, Cavite. After trial on the
merits, the lower court rendered judgment in favor of private
respondent De Guzman, to wit -
"WHEREFORE, judgment is hereby rendered by
this Court as follows: nigel
(1) In LRC Case No. TG-362, this Court hereby
denies the application for registration of the parcels
of land mentioned therein by applicant Norma R.
Almanzor for lack of factual and legal bases;
(2) In LRC Case No. 396, this Court hereby
approves the petition for registration and thus places
Law, the land described in Plan Psu-67537-Amd-2
and containing an area of 308,638 square meters, as
supported by its technical descriptions now forming
parts of the records of these cases, in addition to
other proofs adduced in the names of petitioners
Damian Ermitao De Guzman, Deogracias Ermitao
De Guzman, Zenaida Ermitao De Guzman, Alicia
 Ermitao De Guzman and Salvador De Guzman, all
married, of legal age and with residence and postal
addresses at Magallanes Street, Carmona, Cavite,
subject to the claims of oppositors Dominga
Ermitao, Natividad Encarnacion, Melba E. Torres,
Flora Manalo, Socorro de la Rosa, Jose Ermitao and
Esmeranso Ermitao under an instrument entitled
'Waiver of Rights with Conformity" the terms and
conditions of which are hereby ordered by this Court
to be annotated at the back of the certificates of title
to be issued to the petitioners pursuant to the
judgment of this Court. brnado
SO ORDERED."
As earlier mentioned, on appeal to the Court of Appeals, said
judgment was affirmed and the petition for registration of private
respondents over the subject parcels of land was approved.
Hence, the instant Petition, anchored upon the following assignments
of error
I agricultural, has been converted to private
THE TRIAL COURT ERRED IN NOT FINDING
T H AT T H E D E G U Z M A N S H AV E N O T
SUBMITTED PROOF OF THEIR FEE SIMPLE
TITLE OR POSSESSION IN THE MANNER AND
FOR THE LENGTH OF TIME REQUIRED BY
LAW TO JUSTIFY CONFIRMATION OF AN
IMPERFECT TITLE.
II
T H E T R I A L C O U RT E R R E D I N N O T
DECLARING THAT THE DE GUZMANS HAVE
NOT OVERTHROWN THE PRESUMPTION
THAT THE LANDS ARE PORTIONS OF THE
PUBLIC DOMAIN BELONGING TO THE
REPUBLIC OF THE PHILIPPINES.
We find merit in the instant Petition.
It is not disputed that the subject parcels of land were released as
agricultural land only in 1965 while the petition for confirmation of
imperfect title was filed by private respondents only in 1991. Thus
the period of occupancy of the subject parcels of land from 1965
until the time the application was filed in 1991 was only twenty six
(26) years, four (4) years short of the required thirty (30) year period
possession requirement under Sec. 14, P.D. 29 and R.A. No. 6940.
In finding that private respondents' possession of the subject property
complied with law, the Court of Appeals reasoned out that
"(W)hile it is true that the land became alienable and
disposable only in December, 1965, however,
records indicate that as early as 1928, Pedro
Ermitao, appellees' predecessor-in-interest, was
already in possession of the property, cultivating it
and planting various crops thereon. It follows that
appellees' possession as of the time of the filing of
the petition in 1991 when tacked to Pedro Ermitao's
possession is 63 years or more than the required 30
years period of possession. The land, which is
property ."
We disagree.
The Court of Appeals' consideration of the period of possession prior
to the time the subject land was released as agricultural is in direct
contravention of the pronouncement in Almeda vs. Court of Appeals,
to wit -
"The Court of Appeals correctly ruled that the
private respondents had not qualified for a grant
under Section 48(b) of the Public Land Act because
their possession of the land while it was still
inalienable forest land, or before it was declared
alienable and disposable land of the public
domain on January 13, 1968, could not ripen into
private ownership, and should be excluded from
the computation of the 30-year open and
continuous possession in concept of
 owner required under Section 48(b) of Com. Act
141. It accords with our ruling in Director of Lands
vs. Court of Appeals, Ibarra Bishar, et al., 178 SCRA
708, that: marinella
'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 lands of the
public domain, the rules on confirmation of
imperfect title do not apply (Amunategui vs.
Director of Forestry, 126 SCRA 69; Director of
Lands vs. Court of Appeals, 129 SCRA 689;
Director of Lands vs. Court of Appeals, 133 SCRA
701; Republic vs. Court of Appeals, 148 SCRA 480;
Vallarta vs. Intermediate Appellate Court, 151 SCRA
679).
'Thus possession of forest lands, however long,
cannot ripen into private ownership (Vamo vs.
Government, 41 Phil. 161 [1920]; Adorable vs.
Director of Forestry, 17 Phil. 410 [1960]). A parcel
of forest land is within the exclusive jurisdiction of
the Bureau of Forestry and beyond the power and
jurisdiction of the cadastral court to register under
the Torrens System (Republic vs. Court of Appeals,
89 SCRA 648; Republic vs. Vera, 120 SCRA 210
[1983]; Director of Lands vs. Court of Appeals, 129
SCRA 689 [1984])."
So, too, is the Court of Appeals' reliance on the case of Director of
Land Management vs. Court of Appeals misplaced. There, while the
period of possession of the applicant's predecessor-in-interest was
tacked to his own possession to comply with the required thirty year
period possession requirement, the land involved therein was not
forest land but alienable public land. On the other hand, in the case
before us, the property subject of private respondents' application
was only declared alienable in 1965. Prior to such date, the same was
forest land incapable of private appropriation. It was not registrable
and possession thereof, no matter how lengthy, could not convert it
into private property, (unless) and until such lands were reclassified
and considered disposable and alienable.
In summary, therefore, prior to its declaration as alienable land in
1965, any occupation or possession thereon cannot be considered in
the counting of the thirty year possession requirement. This is in
accord with the ruling in Almeda vs. Court of Appeals, (supra), and
because the rules on the confirmation of imperfect titles do not apply
unless and until the land classified as forest land is released in an
official proclamation to that effect so that it may form part of the
disposable agricultural lands of the public domain.
While we acknowledge the Court of Appeals' finding that private
respondents and their predecessors-in-interest have been in
possession of the subject land for sixty three (63) years at the time of
the application of their petition, our hands are tied by the applicable
laws and jurisprudence in giving practical relief to them. The fact
remains that from the time the subject land was declared alienable
until the time of their application, private respondents' occupation
thereof was only twenty six (26) years. We cannot consider their
thirty seven (37) years of possession prior to the release of the land
as alienable because absent the fact of declassification prior to the
possession and cultivation in good faith by petitioner, the property
occupied by him remained classified as forest or timberland, which
he could not have acquired by prescription. Further, jurisprudence is
replete with cases which reiterate that forest lands or forest reserves
are not capable of private appropriation and possession thereof,
however long, cannot convert them into private property. Possession
of the land by private respondents, whether spanning decades or
centuries, could never ripen into ownership. This Court is
constrained to abide by the latin maxim "(d)ura lex, sed lex".
WHEREFORE, the instant Petition is GRANTED and the February
26, 1998 decision of the Court of Appeals in CA-G.R. CV No. 48785
as well as that of the Regional Trial Court of Cavite, Branch 38, in
LRC Case No. TG-396 are both REVERSED. Judgment is rendered
dismissing LRC Case No. 396 for failure of the applicants therein to
comply with the thirty year occupancy and possessory requirements
of law for confirmation of imperfect title. No pronouncement as to
costs.
SO ORDERED. The property subject of the application for registration is a parcel of
land situated in Barangay Tibig, Silang Cavite, more particularly
identified as Lot 9864-A, Cad-452-D, with an area of 71,324-square
meters. On February 20, 1998, applicant Mario Malabanan, who had
purchased the property from Eduardo Velazco, filed an application
for land registration covering the property in the Regional Trial
Court (RTC) in Tagaytay City, Cavite, claiming that the property
formed part of the alienable and disposable land of the public
domain, and that he and his predecessors-in-interest had been in
open, continuous, uninterrupted, public and adverse possession and
occupation of the land for more than 30 years, thereby entitling him
#14 to the judicial confirmation of his title.1
Republic of the Philippines
 To prove that the property was an alienable and disposable land of
SUPREME COURT
 the public domain, Malabanan presented during trial a certification
Manila dated June 11, 2001 issued by the Community Environment and
Natural Resources Office (CENRO) of the Department of
EN BANC Environment and Natural Resources (DENR), which reads:
G.R. No. 179987 September 3, 2013 This is to certify that the parcel of land designated as Lot No. 9864
HEIRS OF MARIO MALABANAN, (Represented by Sally A. Cad 452-D, Silang Cadastre as surveyed for Mr. Virgilio Velasco
Malabanan), Petitioners, 
 located at Barangay Tibig, Silang, Cavite containing an area of
vs.
 249,734 sq. meters as shown and described on the Plan Ap-04-00952
REPUBLIC OF THE PHILIPPINES, Respondent. is verified to be within the Alienable or Disposable land per Land
Classification Map No. 3013 established under Project No. 20-A and
RESOLUTION approved as such under FAO 4-1656 on March 15, 1982.2
BERSAMIN, J.: After trial, on December 3, 2002, the RTC rendered judgment
For our consideration and resolution are the motions for granting Malabanan’s application for land registration, disposing
reconsideration of the parties who both assail the decision thusly:
promulgated on April 29, 2009, whereby we upheld the ruling of the WHEREFORE, this Court hereby approves this application for
Court of Appeals (CA) denying the application of the petitioners for registration and thus places under the operation of Act 141, Act 496
the registration of a parcel of land situated in Barangay Tibig, Silang, and/or P.D. 1529, otherwise known as Property Registration Law, the
Cavite on the ground that they had not established by sufficient lands described in Plan Csd-04-0173123-D, Lot 9864-A and
evidence their right to the registration in accordance with either containing an area of Seventy One Thousand Three Hundred Twenty
Section 14(1) or Section 14(2) of Presidential Decree No. 1529 Four (71,324) Square Meters, as supported by its technical
(Property Registration Decree). description now forming part of the record of this case, in addition to
Antecedents other proofs adduced in the name of MARIO MALABANAN, who
is of legal age, Filipino, widower, and with residence at Munting
Ilog, Silang, Cavite.
Once this Decision becomes final and executory, the corresponding
decree of registration shall forthwith issue.
SO ORDERED.3
The Office of the Solicitor General (OSG) appealed the judgment to
the CA, arguing that Malabanan had failed to prove that the property
belonged to the alienable and disposable land of the public domain,
and that the RTC erred in finding that he had been in possession of
the property in the manner and for the length of time required by law
for confirmation of imperfect title.
On February 23, 2007, the CA promulgated its decision reversing the
RTC and dismissing the application for registration of Malabanan.
Citing the ruling in Republic v. Herbieto (Herbieto),4 the CA
declared that under Section 14(1) of the Property Registration
Decree, any period of possession prior to the classification of the
land as alienable and disposable was inconsequential and should be
excluded from the computation of the period of possession. Noting
that the CENRO-DENR certification stated that the property had
been declared alienable and disposable only on March 15, 1982,
Velazco’s possession prior to March 15, 1982 could not be tacked for
purposes of computing Malabanan’s period of possession.
Due to Malabanan’s intervening demise during the appeal in the CA,
his heirs elevated the CA’s decision of February 23, 2007 to this
Court through a petition for review on certiorari.
The petitioners assert that the ruling in Republic v. Court of Appeals
and Corazon Naguit5 (Naguit) remains the controlling doctrine
especially if the property involved is agricultural land. In this regard,
Naguit ruled that any possession of agricultural land prior to its
declaration as alienable and disposable could be counted in the
reckoning of the period of possession to perfect title under the Public
Land Act (Commonwealth Act No. 141) and the Property
Registration Decree. They point out that the ruling in Herbieto, to the
effect that the declaration of the land subject of the application for
registration as alienable and disposable should also date back to June
12, 1945 or earlier, was a mere obiter dictum considering that the
land registration proceedings therein were in fact found and declared
void ab initio for lack of publication of the notice of initial hearing.
The petitioners also rely on the ruling in Republic v. T.A.N.
Properties, Inc.6 to support their argument that the property had been
ipso jure converted into private property by reason of the open,
continuous, exclusive and notorious possession by their
predecessors-in-interest of an alienable land of the public domain for
more than 30 years. According to them, what was essential was that
the property had been "converted" into private property through
prescription at the time of the application without regard to whether
the property sought to be registered was previously classified as
agricultural land of the public domain.
As earlier stated, we denied the petition for review on certiorari
because Malabanan failed to establish by sufficient evidence
possession and occupation of the property on his part and on the part
of his predecessors-in interest since June 12, 1945, or earlier.
Petitioners’ Motion for Reconsideration
In their motion for reconsideration, the petitioners submit that the
mere classification of the land as alienable or disposable should be
deemed sufficient to convert it into patrimonial property of the State.
Relying on the rulings in Spouses De Ocampo v. Arlos,7 Menguito v.
Republic8 and Republic v. T.A.N. Properties, Inc.,9 they argue that
the reclassification of the land as alienable or disposable opened it to
acquisitive prescription under the Civil Code; that Malabanan had
purchased the property from Eduardo Velazco believing in good faith
that Velazco and his predecessors-in-interest had been the real
owners of the land with the right to validly transmit title and
ownership thereof; that consequently, the ten-year period prescribed
by Article 1134 of the Civil Code, in relation to Section 14(2) of the
Property Registration Decree, applied in their favor; and that when
Malabanan filed the application for registration on February 20,
1998, he had already been in possession of the land for almost 16
years reckoned from 1982, the time when the land was declared
alienable and disposable by the State.
The Republic’s Motion for Partial Reconsideration
The Republic seeks the partial reconsideration in order to obtain a
clarification with reference to the application of the rulings in Naguit
and Herbieto.
Chiefly citing the dissents, the Republic contends that the decision
has enlarged, by implication, the interpretation of Section 14(1) of
the Property Registration Decree through judicial legislation. It
reiterates its view that an applicant is entitled to registration only
when the land subject of the application had been declared alienable
and disposable since June 12, 1945 or earlier.
Ruling
We deny the motions for reconsideration.
In reviewing the assailed decision, we consider to be imperative to
discuss the different classifications of land in relation to the existing
applicable land registration laws of the Philippines.
Classifications of land according to ownership
Land, which is an immovable property,10 may be classified as either
of public dominion or of private ownership.11Land is considered of
public dominion if it either: (a) is intended for public use; or (b)
belongs to the State, without being for public use, and is intended for
some public service or for the development of the national wealth.
12 Land belonging to the State that is not of such character, or
although of such character but no longer intended for public use or
for public service forms part of the patrimonial property of the State.
13 Land that is other than part of the patrimonial property of the
State, provinces, cities and municipalities is of private ownership if it
belongs to a private individual.
Pursuant to the Regalian Doctrine (Jura Regalia), a legal concept first
introduced into the country from the West by Spain through the Laws
of the Indies and the Royal Cedulas,14 all lands of the public domain
belong to the State.15 This means that the State is the source of any
asserted right to ownership of land, and is charged with the
conservation of such patrimony.16
All lands not appearing to be clearly under private ownership are
presumed to belong to the State. Also, public lands remain part of the
inalienable land of the public domain unless the State is shown to
have reclassified or alienated them to private persons.17
Classifications of public lands

according to alienability
Whether or not land of the public domain is alienable and disposable
primarily rests on the classification of public lands made under the
Constitution. Under the 1935 Constitution,18 lands of the public
domain were classified into three, namely, agricultural, timber and
mineral.19 Section 10, Article XIV of the 1973 Constitution classified
lands of the public domain into seven, specifically, agricultural,
industrial or commercial, residential, resettlement, mineral, timber or
forest, and grazing land, with the reservation that the law might
provide other classifications. The 1987 Constitution adopted the
classification under the 1935 Constitution into agricultural, forest or
timber, and mineral, but added national parks.20 Agricultural lands
may be further classified by law according to the uses to which they
may be devoted.21 The identification of lands according to their legal
classification is done exclusively by and through a positive act of the
Executive Department.22
Based on the foregoing, the Constitution places a limit on the type of
public land that may be alienated. Under Section 2, Article XII of the
1987 Constitution, only agricultural lands of the public domain may
be alienated; all other natural resources may not be.
Alienable and disposable lands of the State fall into two categories,
to wit: (a) patrimonial lands of the State, or those classified as lands
of private ownership under Article 425 of the Civil Code,23 without
limitation; and (b) lands of the public domain, or the public lands as
provided by the Constitution, but with the limitation that the lands
must only be agricultural. Consequently, lands classified as forest or
timber, mineral, or national parks are not susceptible of alienation or
disposition unless they are reclassified as agricultural.24 A positive
act of the Government is necessary to enable such reclassification,
25 and the exclusive prerogative to classify public lands under
existing laws is vested in the Executive Department, not in the
courts.26 If, however, public land will be classified as neither
agricultural, forest or timber, mineral or national park, or when
public land is no longer intended for public service or for the
development of the national wealth, thereby effectively removing the
land from the ambit of public dominion, a declaration of such
conversion must be made in the form of a law duly enacted by
Congress or by a Presidential proclamation in cases where the
President is duly authorized by law to that effect.27 Thus, until the
Executive Department exercises its prerogative to classify or
reclassify lands, or until Congress or the President declares that the
State no longer intends the land to be used for public service or for
the development of national wealth, the Regalian Doctrine is
applicable.
Disposition of alienable public lands
Section 11 of the Public Land Act (CA No. 141) provides the manner
by which alienable and disposable lands of the public domain, i.e.,
agricultural lands, can be disposed of, to wit:
Section 11. Public lands suitable for agricultural purposes can be
disposed of only as follows, and not otherwise:
(1) For homestead settlement;
(2) By sale;
(3) By lease; and
(4) By confirmation of imperfect or incomplete titles;
(a) By judicial legalization; or
(b) By administrative legalization (free patent).
The core of the controversy herein lies in the proper interpretation of
Section 11(4), in relation to Section 48(b) of the Public Land Act,
which expressly requires possession by a Filipino citizen of the land
since June 12, 1945, or earlier, viz:
Section 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 thereafter, under the Land
Registration Act, to wit:
xxxx
(b) Those who by themselves or through their predecessors-in-
interest have been in open, continuous, exclusive, and notorious
possession and occupation of alienable and disposable lands of the
public domain, under a bona fide claim of acquisition of ownership,
since June 12, 1945, or earlier, immediately preceding the filing of
the applications 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. (Bold emphasis supplied)
Note that Section 48(b) of the Public Land Act used the words "lands
of the public domain" or "alienable and disposable lands of the
public domain" to clearly signify that lands otherwise classified, i.e.,
mineral, forest or timber, or national parks, and lands of patrimonial
or private ownership, are outside the coverage of the Public Land
Act. What the law does not include, it excludes. The use of the
descriptive phrase "alienable and disposable" further limits the
coverage of Section 48(b) to only the agricultural lands of the public
domain as set forth in Article XII, Section 2 of the 1987 Constitution.
Bearing in mind such limitations under the Public Land Act, the
applicant must satisfy the following requirements in order for his
application to come under Section 14(1) of the Property Registration
Decree,28 to wit:
1. The applicant, by himself or through his predecessor-in-
interest, has been in possession and occupation of the
property subject of the application;
2. The possession and occupation must be open, continuous,
exclusive, and notorious;
3. The possession and occupation must be under a bona fide
claim of acquisition of ownership;
4. The possession and occupation must have taken place
since June 12, 1945, or earlier; and
5. The property subject of the application must be an
agricultural land of the public domain.
Taking into consideration that the Executive Department is vested
with the authority to classify lands of the public domain, Section
48(b) of the Public Land Act, in relation to Section 14(1) of the
Property Registration Decree, presupposes that the land subject of
the application for registration must have been already classified as
agricultural land of the public domain in order for the provision to
apply. Thus, absent proof that the land is already classified as
agricultural land of the public domain, the Regalian Doctrine applies,
and overcomes the presumption that the land is alienable and
disposable as laid down in Section 48(b) of the Public Land Act.
However, emphasis is placed on the requirement that the
classification required by Section 48(b) of the Public Land Act is
classification or reclassification of a public land as agricultural.
The dissent stresses that the classification or reclassification of the
land as alienable and disposable agricultural land should likewise
have been made on June 12, 1945 or earlier, because any possession
of the land prior to such classification or reclassification produced no
legal effects. It observes that the fixed date of June 12, 1945 could
not be minimized or glossed over by mere judicial interpretation or
by judicial social policy concerns, and insisted that the full
legislative intent be respected.
We find, however, that the choice of June 12, 1945 as the reckoning
point of the requisite possession and occupation was the sole
prerogative of Congress, the determination of which should best be
left to the wisdom of the lawmakers. Except that said date qualified
the period of possession and occupation, no other legislative intent
appears to be associated with the fixing of the date of June 12, 1945.
Accordingly, the Court should interpret only the plain and literal
meaning of the law as written by the legislators.
Moreover, an examination of Section 48(b) of the Public Land Act
indicates that Congress prescribed no requirement that the land
subject of the registration should have been classified as agricultural
since June 12, 1945, or earlier. As such, the applicant’s imperfect or
incomplete title is derived only from possession and occupation since
June 12, 1945, or earlier. This means that the character of the
property subject of the application as alienable and disposable
agricultural land of the public domain determines its eligibility for
land registration, not the ownership or title over it.
Alienable public land held by a possessor, either personally or
through his predecessors-in-interest, openly, continuously and
exclusively during the prescribed statutory period is converted to
private property by the mere lapse or completion of the period.29 In
fact, by virtue of this doctrine, corporations may now acquire lands
of the public domain for as long as the lands were already converted
to private ownership, by operation of law, as a result of satisfying the
requisite period of possession prescribed by the Public Land Act.30 It
is for this reason that the property subject of the application of
Malabanan need not be classified as alienable and disposable
agricultural land of the public domain for the entire duration of the
requisite period of possession.
To be clear, then, the requirement that the land should have been
classified as alienable and disposable agricultural land at the time of
the application for registration is necessary only to dispute the
presumption that the land is inalienable.
The declaration that land is alienable and disposable also serves to
determine the point at which prescription may run against the State.
The imperfect or incomplete title being confirmed under Section
48(b) of the Public Land Act is title that is acquired by reason of the
applicant’s possession and occupation of the alienable and disposable
agricultural land of the public domain. Where all the necessary
requirements for a grant by the Government are complied with
through actual physical, open, continuous, exclusive and public
possession of an alienable and disposable land of the public domain,
the possessor is deemed to have acquired by operation of law not
only a right to a grant, but a grant by the Government, because it is
not necessary that a certificate of title be issued in order that such a
grant be sanctioned by the courts.31
If one follows the dissent, the clear objective of the Public Land Act
to adjudicate and quiet titles to unregistered lands in favor of
qualified Filipino citizens by reason of their occupation and
cultivation thereof for the number of years prescribed by law32 will
be defeated. Indeed, we should always bear in mind that such
objective still prevails, as a fairly recent legislative development
bears out, when Congress enacted legislation (Republic Act No.
10023)33 in order to liberalize stringent requirements and procedures
in the adjudication of alienable public land to qualified applicants,
particularly residential lands, subject to area limitations.34
On the other hand, if a public land is classified as no longer intended
for public use or for the development of national wealth by
declaration of Congress or the President, thereby converting such
land into patrimonial or private land of the State, the applicable
provision concerning disposition and registration is no longer
Section 48(b) of the Public Land Act but the Civil Code, in
conjunction with Section 14(2) of the Property Registration Decree.
35 As such, prescription can now run against the State.
To sum up, we now observe the following rules relative to the
disposition of public land or lands of the public domain, namely:
(1) As a general rule and pursuant to the Regalian Doctrine,
all lands of the public domain belong to the State and are
inalienable. Lands that are not clearly under private
ownership are also presumed to belong to the State and,
therefore, may not be alienated or disposed;
(2) The following are excepted from the general rule, to wit:
(a) Agricultural lands of the public domain are
rendered alienable and disposable through any of the
exclusive modes enumerated under Section 11 of the
Public Land Act. If the mode is judicial confirmation
of imperfect title under Section 48(b) of the Public
Land Act, the agricultural land subject of the
application needs only to be classified as alienable
and disposable as of the time of the application,
provided the applicant’s possession and occupation
of the land dated back to June 12, 1945, or earlier.
Thereby, a conclusive presumption that the applicant
has performed all the conditions essential to a
government grant arises,36 and the applicant
becomes the owner of the land by virtue of an
imperfect or incomplete title. By legal fiction, the
land has already ceased to be part of the public
domain and has become private property.37
(b) Lands of the public domain subsequently
classified or declared as no longer intended for
public use or for the development of national wealth
are removed from the sphere of public dominion and
are considered converted into patrimonial lands or
lands of private ownership that may be alienated or
disposed through any of the modes of acquiring
ownership under the Civil Code. If the mode of
acquisition is prescription, whether ordinary or
extraordinary, proof that the land has been already
converted to private ownership prior to the requisite
acquisitive prescriptive period is a condition sine
qua non in observance of the law (Article 1113, Civil
Code) that property of the State not patrimonial in
character shall not be the object of prescription.
To reiterate, then, the petitioners failed to present sufficient evidence
to establish that they and their predecessors-in-interest had been in
possession of the land since June 12, 1945. Without satisfying the
requisite character and period of possession - possession and
occupation that is open, continuous, exclusive, and notorious since
June 12, 1945, or earlier - the land cannot be considered ipso jure
converted to private property even upon the subsequent declaration
of it as alienable and disposable. Prescription never began to run
against the State, such that the land has remained ineligible for
registration under Section 14(1) of the Property Registration Decree.
Likewise, the land continues to be ineligible for land registration
under Section 14(2) of the Property Registration Decree unless
Congress enacts a law or the President issues a proclamation
declaring the land as no longer intended for public service or for the
development of the national wealth.
WHEREFORE, the Court DENIES the petitioners' Motion for
Reconsideration and the respondent's Partial Motion for
Reconsideration for their lack of merit.
SO ORDERED.