The Regalian Doctrine

I. What is the Regalian Doctrine?

According to Professor Lynch, the Regalian Doctrine became applicable in the group of islands now known as the Philippines when The King of Spain claimed ownership of everything of value in the Philippines thereby stripping natives of their ancestral rights to land. Critical and sceptical of the said doctrine and how it may operate in a just legal framework, Professor Lynch grapples with the inconsistency of how a politically undefined territory inhabited by a people with a unique heritage and independent society became deprived of their rights with one fell swoop. Quoting Professor Lynch:
According to the doctrine, at some unspecified moment during the sixteenth century, the sovereign and property rights (imperium and dominion) of the Philippine people's forebears were unilaterally usurped by, and simultaneously vested in the crowns of Castille and Aragon. At that same five-hundred-year-old unspecified moment, every native in the politically undefined and still largely unexplored (not to mention unconquered) archipelago became a squatter, bereft of any legal rights to land or any other natural resources.

Concluding with his scathing opinion of the doctrine, Professor Lynch describes the same with the following words:
The Regalian Doctrine enshrines an arbitrary, mythical, and unjust usurpation of sovereignty and customary property rights

Given Professor Lynchs negative opinion on the subject matter an accepted legal doctrine, the question of whether or not he has legal basis to support his conclusion is begging for a reply. The legal basis for Lynch would come from jurisprudence, penned by Justice Oliver Wendell Holmes in the landmark case of Cario v. Insular Government. The next subsection contrasts the case of Cario with the case of Valenton v. Murciano which upheld the regalian doctrine.

II.

A conflict between cases: Valenton v. Murciano and Cario v. Insular Government.

The 1904 case of Valenton v. Murciano involved a dispute between a group of actual long-term occupants and an individual who had allegedly obtained a Spanish grant over the same property. Both acknowledged that the land originally belonged to the Crown. Valenton claims that in 1890, after thirty years of possession, ownership vested in them by way of prescription. Murciano, who obtained the grant

after purchasing the parcel of land from a contract entered with the secretary of the provincial treasury, never occupied the land. The Supreme Court ruled in favour of Murciano. The decision held that before any private interest in land could be established, a claimant had to first secure documentary recognition of the right from the State.
While the State has always recognized the right of an occupant to a deed if he proves possession for a sufficient length of time, yet it has always insisted that he must make that proof before administrative officers, and obtain from them his deed, and until he did that the State remained the absolute owner

This decision was anchored from the provision of Law 14, Title 12, Book 4 of the Recopilacion de Leyes de Las Indias which states that:
We having acquired 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

The Valenton decision therefore laid the judicial foundation for the 20 th century form of the Regalian Doctrine in the context of the Philippines. In contrast with the Valenton decision is the Cario decision. Don Mateo Cario, a native Ibaloi, was an indigenous occupant from Benguet. On June 22, 1903 Cario applied in the Court of Land Registration for documentary recognition of his ancestral ownership over 146 hectares of land in Baguio. Cario claimed that he and his forebears fenced the land off and raised cattle and cultivated root crops and rice since 1848. No documentary recognition was secured until 1901. However, the US regime ignored the claim and sometime before 1903, a public road was built on the property over objections made by Cario. The Philippine Supreme Court ruled against Cario reasoning that there was no law in force in the Philippines during the Spanish colonization by which ownership over Crown lands could be obtained by prescription without any supporting action by the State. To support this conclusion, the Philippine Supreme Court cited the Valenton decision as precedent.

Undeterred, however, Cario raised the case on appeal to the United States Supreme Court. In a unanimous decision written by Justice Oliver Wendell Holmes, the United States Supreme Court demolished the governments arguments against Carios claim. In its decision rendered on February 23, 1909 the United States Supreme Court 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.

With the Cario decision therefore, the concept of native titles was appropriately acknowledged to produce legal effects. The Valenton decision and the Cario decision are foils of one another. The first one stating that a positive act from the State is needed to even begin to justify ownership of real property and the other stating that it is the State which needs to realize that even before its conception there were those who held lands as owners since time immemorial.

III.

The concept of native title and the Indigenous Peoples Rights Act of 1997.
During his sponsorship speech of Senate Bill No. 1728 (which will eventually become the Indigenous Peoples Rights Act (IPRA) of 1997) Senator Flavier said:
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, sociocultural 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.

Provisions of the IPRA will be questioned in the case of Cruz v. DENR Secretary wherein the petitioner is the political law expert and former Supreme Court Associate

Justice Isagani Cruz. The IPRA will be questioned particularly its provisions acknowledging the rights of the Indigenous Peoples over resources . It is important to qualify that the IPRA is not questioned because the petitioners do not wish any good for the indigenous peoples but because they are of the strong opinion that the law may have given more than what is constitutionally allowable for the benefit of the indigenous peoples. This view is eventually shared by the Solicitor General Ricardo Galvez whose Office sided with the petitioners to have the law declared unconstitutional. Their argument lies in the constitutional provision generally acknowledged as embodying the Regalian Doctrine, Article XII, Section 2 of the Constitution states:
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." (Art. XII, Sec. 2, The Constitution)

However, the respondents, represented by another political law expert then lawyer and now also an Associate Justice of the Supreme Court, Marvic Leonen argued that Article XII, Section 2 of the Constitution must be read in conjunction with another provision of the constitution under the same Article. Article XII, Section 5 states that:
"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 or relations in determining the ownership and extent of ancestral domain.

For the respondents the IPRA is the statute which breathes life to this provision of the Constitution. Maritess Daguilan Vitug and Criselda Yabes in their book Our Rights, Our Victories: Landmark Cases in the Supreme Court recounted the oral arguments held in the Supreme Court when this case was being heard:
April 13, 1999 began as a bright, sunny morning in the cool mountain retreat of Baguio... Marvic Leonen was ...[a] young, up-and-coming [lawyer] taking the less fashionable path for the public interest of the country's neglected peoples. He [felt] that it was going to be a crucial day for the scheduled oral arguments before the Supreme Court. Three ethnic groups from the Cordillera, Mindoro, and Mindanao had each given Leonen an amulet for luck and courage; and they had, for that purpose, held a ritual for the gods for their

common voice to be heard symbolically. He had put the tokens in his pocket and was told by the tribal elders later on, that when he spoke in court, a shaft of light from the summer sun's ray had fallen on him. He considered that a good omen, a sign of illumination.

The Solicitor General, arguing for the Court to declare the IPRA unconstitutional, stated that the Cario decision cannot be a legal basis since it is rendered extinguished by the ratification of the 1935 Constitution. In Justice Kapunans Separate Opinion of the Supreme Courts resolution of the case it states:
The Solicitor General submit that ancestral lands and ancestral domains are owned by the State. The Solicitor General, for his part, argues that the [Cario] 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. The Solicitor General asserts that even assuming that native title over ancestral lands and ancestral domains existed by virtue of the Cario doctrine, such native title was extinguished upon the ratification of the 1935 Constitution.

From here it must be noted that one out of the 15 Justices of the Supreme Court recently retired leaving the resolution of the case to a stunning tie. Since no majority decision was reached, as the Rules of the Supreme Court dictates, the case was dismissed. In summary the Petitioners arguments are as enumerated: 1.) The IPRA is in violation of the regalian doctrine still embodied in Section 2, Article XII of the Constitution. 2.) The Cario decision could not be superior to the will of the sovereign people expressed in the 1935, 1973 and the present Constitution. 3.)Moreover, as to the Constitutions reference to the applicability of customary law, it was argued that what was meant was that Congress should look closely into the customary laws and, with specificity and by proper recitals, hew them to, and make them part of, the stream of laws and publish them in order to satisfy the due process clause.

On the other hand, Respondents arguments can be summarized thusly: 1.) Even accepting the regalian doctrine, Spain could claim dominium only over unoccupied and unclaimed portions of the islands. Therefore, arguing from the due process clause, the existence of native title prior to arrival of the colonists must be recognized. 2.) The IPRA defined native title as referring 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. 3.) The IPRA still kept for the State control over natural resources even in ancestral domain. Attempting to give an apt resolution to the controversy, Justice Puno attempts to give illumination to these constitutional quandaries in his separate opinion:
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 largescale 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.

According to Justice Puno the IPRA is the States positive act to give an apt culmination to the historical struggles of the Philippine Indigenous Peoples, in his separate opinion Justice Puno believes that the IPRA is the acknowledgement of the co-existence of indigenous and customary law together with our national legal system. According to Justice Puno:
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. 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. 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, 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.

IV.

Discussions about the Regalian doctrine is still relevant now.

Especially with the development of the Bangsamoro framework agreement, discussions about the Regalian Doctrine is still very much relevant and fresh as of writing. The Philippine Daily Inquirer wrote in July 16, 2013 an article about a forum at the Ateneo Law School:
In a forum at Ateneo Law School on Monday, lawyer Armi Bayot, a member of the legal team from the Office of the Solicitor General, said the government panel agreed to remove references to the regalian doctrine in the wealth-sharing annex to show respect and acknowledge the history of the Bangsamoro people. Embodied in Section 2 of Article XII of the Constitution, the regalian doctrine states that all lands and natural resources in the public domain belong to the state. Bayot said the regalian doctrine would not cease to exist, as it is part of the Constitution, but it was not necessary to include it in the wealth-sharing annex to the Bangsamoro peace template. Removing it from the annex is a sign of respect and acknowledgment of the history of the Bangsamoro people, Bayot said.

Clearly, a proper disquisition of the Regalian Doctrine is relevant even now to understand Philippine Land Laws and the historical underpinnings surrounding this area of our legal system.

Endnotes:
Bibliography: 1. Lynch, Owen. Colonial Legacies in a Fragile Republic: Philippine Land Law and State Formation with Emphasis on the Early U.S. Regime (1898-1913). University of the Philippines College of Law. Quezon City. 2011. 2. Vitug, Maritess and Yabes, Criselda. Our Rights, Our Victories: Landmark Cases in the Supreme Court. Cleverheads Publishing. Quezon City. 2011. Philippine Supreme Court Cases: 1. G.R. No. 1413 (March 30, 1904) | Andres Valenton, et.al. v. Manuel Murciano 2. G.R. No. 2869 (March 25, 1907) | Mateo Cario v. The Insular Government 3. G.R. No. 135385 (December 6, 2000) | Isagani Cruz et.al. v. Secretary of Environment and Natural Resources et. al. United States Supreme Court Cases: 1. 212 U.S. 449 (February 23, 1909) | Mateo Cario v. The Insular Government News Articles: 1. Burgonio, TJ. Bangsamoro gets jewel in the crown Philippine Daily Inquirer. (July 16, 2013)