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Supreme Court
Johnson & Graham's Lessee v. McIntosh, 21 U.S. 8 Wheat. 543
543 (1823)
Johnson & Graham's Lessee v. McIntosh
21 U.S. (8 Wheat.) 543
ERROR TO THE DISTRICT
COURT OF ILLINOIS
Syllabus
A title to lands under grants to private individuals made by Indian tribes or nations
northwest of the River Ohio in 1773 and 1775 cannot be recognized in the courts
of the United States.
Discovery the original foundation of titles to land on the American continent as
between the different European nations by whom conquests and settlements were
made here.
Recognition of the same principle in the wars, negotiations, and treaties between
the different European powers.
Adoption of the same principle by the United States.
The exclusive right of the British government to the lands occupied by the Indians
has passed to that of the United States.
Foundation and limitation of the right of conquest.
Application of the principle of the right of conquest to the case of the Indian
savages. Nature of the Indian title, as subordinate to the absolute ultimate title of
the government.
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
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North America by the Europeans, and during the whole intermediate time, the
whole of the territory in the letters patent described, except a small district on
James River, where a settlement of Europeans had previously been made, was
held, occupied, and possessed in full sovereignty by various independent tribes or
nations of Indians, who were the sovereigns of their respective portions of the
territory and the absolute owners and proprietors of the soil and who neither
acknowledged nor owed any allegiance or obedience to any European sovereign or
state whatever, and that in making settlements within this territory and in all the
other parts of North America where settlements were made under the authority of
the English government or by its subjects, the right of soil was previously obtained
by purchase or conquest from the particular Indian tribe or nation by which the soil
was claimed and held, or the consent of such tribe or nation was secured.
4th. That in the year 1624, this corporation was dissolved by due course of law and
all its powers, together with its rights of soil and jurisdiction under the letters
patent in question were revested in the Crown of England, whereupon the colony
became a royal government with the same territorial limits and extent which had
been established by the letters patent, and so continued until it became a free and
independent state, except so far as its limits and extent were altered and curtailed
by the Treaty of February 10, 1763, between Great Britain and France and by the
letters patent granted by the King of England
them, and with the like consent established several military posts and settlements
therein, particularly at Kaskaskias, on the River Kaskaskias, and at Vincennes, on
the River Wabash, within the limits of the Colony of Virginia, as described and
established in and by the letters patent of May 23, 1609, and that the government
of Great Britain, after complaining of these establishments as encroachments and
remonstrating against them, at length, in the year 1756, took up arms to resist and
repel them, which produced a war between those two nations wherein the Indian
tribes inhabiting and holding the countries northwest of the Ohio and on the
Mississippi above the mouth of the Ohio were the allies of France, and the Indians
known by the name of the Six Nations or the Iroquois and their tributaries and
allies were the allies of Great Britain, and that on 10 February, 1763, this war was
terminated by a definitive treaty of peace between Great Britain and France and
their allies by which it was stipulated and agreed that the River Mississippi, from
its source to the Iberville, should forever after form the boundary between the
dominions of
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Great Britain and those of France in that part of North America and between their
respective allies there.
6th. That the government of Virginia, at and before the commencement of this war
and at all times after it became a royal government, claimed and exercised
jurisdiction, with the knowledge and assent of the government of Great Britain, in
and over the country northwest of the River Ohio and east of the Mississippi as
being included within the bounds and limits described and established for that
colony, by the letters patent of May 23, 1609, and that in the year 1749, a grant of
six hundred thousand acres of land within the country northwest of the Ohio and as
part of Virginia was made by the government of Great Britain to some of its
subjects by the name and style of the Ohio Company.
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for establishing the Colonies of Carolina, Maryland, and Pennsylvania.
5th. That sometime previous to the year 1756, the French government, laying a
claim to the country west of the Alleghany or Appalachian Mountains on the Ohio
and Mississippi Rivers and their branches, took possession of certain parts of it
with the consent of the several tribes or nations of Indians possessing and owning
7th. That at and before the commencement of the war in 1756 and during its whole
continuance and at the time of the Treaty of February 10, 1763, the Indian tribes or
nations inhabiting the country north and northwest of the Ohio and east of the
Mississippi as far east as the river falling into the Ohio called the Great Miami
were called and known by the name of the Western Confederacy of Indians, and
were the allies of France in the war, but not her subjects, never having been in any
manner conquered by her, and held the country in absolute sovereignty as
independent nations, both as to the right of jurisdiction and sovereignty and the
right of soil, except a few military posts and a small territory around each,
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which they had ceded to France, and she held under them, and among which were
the aforesaid posts of Kaskaskias and Vincennes, and that these Indians, after the
treaty, became the allies of Great Britain, living under her protection as they had
before lived under that of France, but were free and independent, owing no
allegiance to any foreign power whatever and holding their lands in absolute
property, the territories of the respective tribes being separated from each other and
distinguished by certain natural marks and boundaries to the Indians well known,
and each tribe claiming and exercising separate and absolute ownership in and
over its own territory, both as to the right of sovereignty and jurisdiction and the
right of soil.
8th. That among the tribes of Indians thus holding and inhabiting the territory
north and northwest of the Ohio, east of the Mississippi, and west of the Great
Miami, within the limits of Virginia, as described in the letters patent of May 23,
1609, were certain independent tribes or nations called the Illinois or Kaskaskias
and the Piankeshaw or Wabash Indians, the first of which consisted of three several
tribes united into one and called the Kaskasias, the Pewarias, and the Cahoquias;
that the Illinois owned, held, and inhabited, as their absolute and separate property,
a large tract of country within the last mentioned limits and situated on the
Mississippi, Illinois, and Kaskaskias Rivers and on the Ohio below the mouth of
the Wabash, and the Piankeshaws another large tract of country within the same
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10th. That on 7 October, 1763, the King of Great Britain made and published a
proclamation for the better regulation of the countries ceded to Great Britain by
that treaty, which proclamation is referred to and made part of the case.
11th. That from time immemorial and always up to the present time, all the Indian
tribes or nations of North America, and especially the Illinois and Piankeshaws and
other tribes holding, possessing, and inhabiting the said countries north and
northeast of the Ohio east of the Mississippi and west of the Great Miami held
their respective lands and territories each in common, the individuals
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of each tribe or nation holding the lands and territories of such tribe in common
with each other, and there being among them no separate property in the soil, and
that their sole method of selling, granting, and conveying their lands, whether to
governments or individuals, always has been from time immemorial and now is for
certain chiefs of the tribe selling to represent the whole tribe in every part of the
transaction, to make the contract, and execute the deed, on behalf of the whole
tribe, to receive for it the consideration, whether in money or commodities, or
both, and finally to divide such consideration among the individuals of the tribe,
and that the authority of the chiefs so acting for the whole tribe is attested by the
presence and assent of the individuals composing the tribe, or some of them, and
by the receipt by the individuals composing the tribe of their respective shares of
the price, and in no other manner.
Page 21 U. S. 549
limits, and as their absolute and separate property, on the Wabash and Ohio Rivers,
and that these Indians remained in the sole and absolute ownership and possession
of the country in question until the sales made by them in the manner herein after
set forth.
9th. That on the termination of the war between Great Britain and France, the
Illinois Indians, by the name of the Kaskaskias tribes of Indians, as fully
representing all the Illinois tribes then remaining, made a treaty of peace with
Great Britain and a treaty of peace, limits, and amity, under her mediation, with the
Six Nations, or Iroquois, and their allies, then known and distinguished by the
name of the Northern Confederacy of Indians, the Illinois being a part of the
confederacy then known and distinguished by the name of the Southern
Confederacy, and sometimes by that of the Western Confederacy.
12th. That on 5 July, 1773, certain chiefs of the Illinois Indians, then jointly
representing, acting for, and being duly authorized by that tribe in the manner
explained above, did by their deed poll, duly executed and delivered and bearing
date on that day, at the post of Kaskaskias, then being a British military post, and at
a public council there held by them for and on behalf of the said Illinois nation of
Indians with William Murray, of the Illinois country, merchant, acting for himself
and for Moses Franks and Jacob Franks, of London, in Great Britain, David
Franks, John Inglis, Bernard Gratz, Michael
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Gratz, Alexander Ross, David Sproat, and James Milligan, all of Philadelphia, in
the p\Province of Pennsylvania; Moses Franks, Andrew Hamilton, William
Hamilton, and Edmund Milne of the same place; Joseph Simons otherwise called
Joseph Simon and Levi Andrew Levi of the Town of Lancaster in Pennsylvania;
Thomas Minshall of York County in the same province; Robert Callender and
William Thompson, of Cumberland County in the same province; John Campbell
of Pittsburgh in the same province; and George Castles and James Ramsay of the
Illinois country, and for a good and valuable consideration in the said deed stated
grant, bargain, sell, alien, lease, enfeoff, and confirm to the said William Murray,
Moses Franks, Jacob Franks, David Franks, John Inglis, Bernard Gratz, Michael
Gratz, Alexander Ross, David Sproat, James Milligan, Andrew Hamilton, William
Hamilton, Edmund Milne Joseph Simons, otherwise called Joseph Simon Levi
Andrew Levi, Thomas Minshall, Robert Callender, William Thompson, John
Campbell, George Castles, and James Ramsay, their heirs and assigns forever, in
severalty, or to George the Third, then King of Great Britain and Ireland, his heirs
and successors, for the use, benefit, and behoof of the grantees, their heirs and
assigns, in severalty, by whichever of those tenures they might most legally hold,
all those two several tracts or parcels of land situated, lying, and being within the
limits of Virginia on the east of the Mississippi, northwest of the Ohio, and west of
the Great Miami, and thus butted
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and bounded:
Beginning for one of the said tracts on the east side of the Mississippi at the mouth
of the Heron Creek, called by the French the River of Mary, being about a league
below the mouth of the Kaskaskias River, and running thence a northward of east
course in a direct line back to the Hilly Plains, about eight leagues more or less;
thence the same course in a direct line to the Crab Tree Plains, about seventeen
leagues more or less; thence the same course in a direct line to a remarkable place
known by the name of the Big Buffalo Hoofs, about seventeen leagues more or
less; thence the same course, in a direct line to the Salt Lick Creek, about seven
leagues more or less; then crossing the Salt Lick Creek, about one league below
the ancient Shawanese town in an easterly or a little to the north of east course in a
direct line to the River Ohio, about four leagues more or less; then down the Ohio
by its several courses until it empties into the Mississippi, about thirty-five leagues
more or less; and then up the Mississippi, by its several courses, to the place of
beginning, about thirty-three leagues more or less; and beginning for the other tract
on the Mississippi at a point directly opposite to the mouth of the Missouri and
running up the Mississippi by its several courses to the mouth of the Illinois, about
six leagues more or less; and thence up the Illinois, by its several courses, to
Chicagou or Garlic Creek, about ninety leagues, more or less; thence nearly a
northerly course, in a direct line, to a certain remarkable place, being the ground on
which a
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battle was fought about forty or fifty years before that time between the Pewaria
and Renard Indians, about fifty leagues more or less; thence by the same course in
a direct line to two remarkable hills close together in the middle of a large prairie
or plain, about fourteen leagues more or less; thence a north of east course, in a
direct line, to a remarkable spring known by the Indians by the name of "Foggy
Spring," about fourteen leagues more or less; thence the same course in a direct
line to a great mountain, to the northwest of the White Buffalo Plain, about fifteen
leagues more or less; and thence nearly a southwest course to the place of
beginning, about forty leagues more or less:
To have and to hold the said two tracts of land, with all and singular their
appurtenances, to the grantees, their heirs and assigns, forever in severalty or to the
King, his heirs and successors, to and for the use, benefit, or behoof of the
grantees, their heirs and assigns, forever in severalty, as will more fully appear by
the said deed poll, duly executed under the hands and seals of the grantors and
duly recorded at Kaskaskias on 2 September, 1773, in the office of Vicerault
Lemerance, a notary public, duly appointed and authorized. This deed, with the
several certificates annexed to or endorsed on it, was set out at length in the case.
13th. That the consideration in this deed expressed, was of the value of $24,000
current money of the United States and upwards, and was paid and delivered, at
the time of the execution of the deed, by William Murray, one
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of the grantees, in behalf of himself and the other grantees, to the Illinois Indians,
who freely accepted it and divided it among themselves; that the conferences in
which the sale of these lands was agreed on and made and in which it was agreed
that the deed should be executed were publicly held for the space of a month at the
post of Kaskaskias, and were attended by many individuals of all the tribes of
Illinois Indians, besides the chiefs, named as grantors in the deed; that the whole
transaction was open, public, and fair, and the deed fully explained to the grantors
and other Indians by the sworn interpreters of the government and fully understood
by the grantors and other Indians before it was executed; that the several witnesses
to the deed and the grantees named in it were such persons and of such quality and
stations, respectively, as they are described to be in the deed, the attestation, and
the other endorsements on it; that the grantees did duly authorize William Murray
to act for and represent them in the purchase of the lands and the acceptance of the
deed, and that the two tracts or parcels of land which it describes and purports to
grant were then part of the lands held, possessed, and inhabited by the Illinois
Indians from time immemorial in the manner already stated.
tenures they might most legally hold, all those two several tracts of land in the
deed particularly described situate, lying,
brk:
14th. That all the persons named as grantees in this deed were, at the time of its
execution and long before, subjects of the Crown of Great Britain and residents of
the several places named in the deed as their places of residence, and that
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they entered into the land under and by virtue of the deed and became seized as the
law requires.
15th. That on 18 October, 1775, Tabac and certain other Indians, all being chiefs of
the Piankeshaws and jointly representing, acting for, and duly authorized by that
nation in the manner stated above, did, by their deed poll, duly executed and
bearing date on the day last mentioned at the post of Vincennes, otherwise called
post St. Vincent, then being a British military post, and at a public council there
held by them for and on behalf of the Piankeshaw Indians, with Louis Viviat, of
the Illinois country, acting for himself and for the Right Honorable John, Earl of
Dunmore, then Governor of Virginia, the Honorable John Murray, son of the said
Earl, Moses Franks and Jacob Franks, of London, in Great Britain, Thomas
Johnson, Jr., and John Davidson, both of Annapolis, in Maryland, William Russel,
Matthew Ridley, Robert Christie, Sr., and Robert Christie, Jr., of Baltimore Town,
in the same province, Peter Compbell, of Piscataway in the same province,
William Geddes, of Newtown Chester in the same province, collector of his
Majesty's customs, David Franks and Moses Franks, both of Philadelphia in
Pennsylvania, William Murray and Daniel Murray, of the Illinois country, Nicholas
St. Martin and Joseph Page, of the same place, Francis Perthuis, late of Quebec, in
Canada, but then of post St. Vincent, and for good and valuable consideration, in
the deed poll mentioned and enumerated, grant, bargain, sell, alien, enfeoff,
release, ratify, and
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and being northwest of the Ohio, east of the Mississippi, and west of the Great
Miami, within the limits of Virginia and on both sides of the Ouabache, otherwise
called the Wabash, which two tracts of land are contained respectively within the
following metes and bounds, courses and distances, that is to say, beginning for
one of the said tracts at the mouth of a rivulet called Riviere du Chat, or Cat River,
where it empties itself into the Ouabache or Wabash, by its several courses, to a
place called Point Coupee, about twelve leagues above post St. Vincent, being
forty leagues, or thereabouts, in length, on the said river Ouabache, from the place
of beginning, with forty leagues in width or breadth on the east side, and thirty
leagues in breadth or width on the west side of that river, to be continued along
from the place of beginning to Point Coupee. And beginning for the other tract at
the mouth of White River where it empties into the Ouabache, about twelve
leagues below post St. Vincent, and running thence down the Ouabache by its
several courses until it empties into the Ohio, being from White River to the Ohio,
about fifty-three leagues in length, more or less, with forty
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leagues in width or breadth on the east side and thirty in width or breadth on the
west side of the Ouabache, to be continued along from the White River to the
Ohio, with all the rights, liberties, privileges, hereditaments, and appurtenances to
the said tract belonging, to have and to hold to the grantees, their heirs and assigns,
forever in severalty or to the King, his heirs and successors, for the use, benefit,
and behoof of the grantees, their heirs and assigns, as will more fully appear by the
deed itself, duly executed under the hands and seals of the grantors, and duly
recorded at Kaskaskias, on 5 December, 1775, in the office of Louis Bomer, a
notary public, duly appointed and authorized. This deed, with the several
certificates annexed to or endorsed on it, was set out at length.
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
16th. That the consideration in this deed expressed was of the value of $31,000
current money of the United States and upwards, and was paid and delivered at the
time of the execution of the deed by the grantee, Lewis Viviat, in behalf of himself
and the other grantees, to the Piankeshaw Indians, who freely accepted it and
divided it among themselves; that the conferences in which the sale of these two
tracts of land was agreed on and made, and in which it was agreed that the deed
should be executed were publicly held for the space of a month at the post of
Vincennes or post St. Vincent, and were attended by many individuals of the
Piankeshaw nation of Indians besides the chiefs named as grantors in the deed; that
the whole
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transaction was open, public, and fair, and the deed fully explained to the grantors
and other Indians by skillful interpreters, and fully understood by them before it
was executed; that it was executed in the presence of the several witnesses by
whom it purports to have been attested, and was attested by them; that the grantees
were all subjects of the Crown of Great Britain, and were of such quality, station,
and residence, respectively, as they are described in the deed to be; that the
grantees did duly authorize Lewis Viviat to act for and represent them in the
purchase of these two tracts of land and in the acceptance of the deed; that these
tracts of land were then part of the lands held, possessed, and inhabited by the
Piankeshaw Indians from time immemorial, as is stated above; and that the several
grantees under this deed entered into the land which it purports to grant and
became seized as the law requires.
17th. That on 6 May, 1776, the Colony of Virginia threw off its dependence on the
Crown and government of Great Britain and declared itself an independent state
and government with the limits prescribed and established by the letters patent of
May 23, 1609, as curtailed and restricted by the letters patent establishing the
Colonies of Pennsylvania, Maryland, and Carolina and by the Treaty of February
10, 1763, between Great Britain and France, which limits, so curtailed and
restricted, the State of Virginia, by its Constitution and form of government,
declared should be and remain the limits of the state and should bound its western
and northwestern extent.
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18th. That on 5 October, 1778, the General Assembly of Virginia, having taken by
arms the posts of Kaskaskias and Vincennes, or St. Vincent, from the British
forces, by whom they were then held, and driven those forces from the country
northwest of the Ohio, east of the Mississippi, and west of the Great Miami, did,
by an act of assembly of that date, entitled "An act for establishing the County of
Illinois and for the more effectual protection and defense thereof," erect that
country, with certain other portions of territory within the limits of the state and
northwest of the Ohio into a county, by the name of the County of Illinois.
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
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in and under the deed of October 18, 1775, departed this life on or about 1
October, 1819, seized of all his undivided part or share of and in the two several
tracts of land described and purporting to be granted and conveyed to him and
others by that deed, having first duly made and published his last will and
testament in writing, attested by three credible witnesses, which he left in full force
and by which he devised all his undivided share and part of those two tracts of land
to his son, Joshua Johnson and his heirs, and his grandson, Thomas J. Graham, and
his heirs, the lessors of the plaintiff in this action, as tenants in common.
23d. That Joshua Johnson and Thomas J. Graham, the devisees, entered into the
two tracts of land last above mentioned under and by virtue of the will, and
became thereof seized as the law requires. That Thomas Johnson, the grantee and
devisor, during his whole life and at the time of his death, was an inhabitant and
citizen of the State of Maryland; that Joshua Johnson and Thomas J. Graham, the
lessors of the plaintiff, now are and always have been citizens of the same state;
that the defendant, William McIntosh, now is and at and before the time of
bringing this action was a citizen of the State of Illinois, and that the matter in
dispute in this action is of the value of $2,000 current money of the United States
and upwards.
24th. And that neither William Murray nor any other of the grantees under the deed
of July 5, 1773, nor Louis Viviat nor any other of the
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grantees under the deed of October 8, 1775, nor any person for them or any of
them ever obtained or had the actual possession under and by virtue of those deeds
or either of them of any part of the lands in them or either of them described and
purporting to be granted, but were prevented by the war of the American
Revolution, which soon after commenced, and by the disputes and troubles which
preceded it, from obtaining such possession, and that since the termination of the
war and before it, they have repeatedly and at various times from the year 1781 till
the year 1816 petitioned the Congress of the United States to acknowledge and
confirm their title to those lands under the purchases and deeds in question, but
without success.
Judgment being given for the defendant on the case stated, the plaintiffs brought
this writ of error.
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Indian tribes constituting the Illinois and the Piankeshaw nations, and the question
is whether this title can be recognized in the courts of the United States?
The facts, as stated in the case agreed, show the authority of the chiefs who
executed this conveyance so far as it could be given by their own people, and
likewise show that the particular tribes for whom these chiefs acted were in
rightful possession of the land they sold. The inquiry, therefore, is in a great
measure confined to the power of Indians to give, and of private individuals to
receive, a title which can be sustained in the courts of this country.
As the right of society to prescribe those rules by which property may be acquired
and preserved is not and cannot be drawn into question, as the title to lands
especially is and must be admitted to depend entirely on the law of the nation in
which they lie, it will be necessary in pursuing this inquiry to examine not singly
those principles of abstract justice which the Creator of all things has impressed on
the mind of his creature man and which are admitted to regulate in a great degree
the rights of civilized nations, whose perfect independence is acknowledged, but
those principles also which our own government has adopted in the particular case
and given us as the rule for our decision.
On the discovery of this immense continent, the great nations of Europe were
eager to appropriate to themselves so much of it as they could respectively acquire.
Its vast extent offered an
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ample field to the ambition and enterprise of all, and the character and religion of
its inhabitants afforded an apology for considering them as a people over whom
the superior genius of Europe might claim an ascendency. The potentates of the old
world found no difficulty in convincing themselves that they made ample
compensation to the inhabitants of the new by bestowing on them civilization and
Christianity in exchange for unlimited independence. But as they were all in
pursuit of nearly the same object, it was necessary, in order to avoid conflicting
settlements and consequent war with each other, to establish a principle which all
should acknowledge as the law by which the right of acquisition, which they all
asserted should be regulated as between themselves. This principle was that
discovery gave title to the government by whose subjects or by whose authority it
was made against all other European governments, which title might be
consummated by possession.
all show that she placed in on the rights given by discovery. Portugal sustained her
claim to the Brazils by the same title.
The exclusion of all other Europeans necessarily gave to the nation making the
discovery the sole right of acquiring the soil from the natives and establishing
settlements upon it. It was a right with which no Europeans could interfere. It was
a right which all asserted for themselves, and to the assertion of which by others all
assented.
conciliatory her conduct to the natives may have been, she still asserted her right
of dominion over a great extent of country not actually settled by Frenchmen and
her exclusive right to acquire and dispose of the soil which remained in the
occupation of Indians. Her monarch claimed all Canada and Acadie as colonies of
France at a time when the French population was very inconsiderable and the
Indians occupied almost the whole country. He also claimed Louisiana,
comprehending the immense territories watered by the Mississippi and the rivers
which empty into it, by the title of discovery. The letters patent granted to the Sieur
Demonts in 1603, constitute him Lieutenant General, and the representative of the
King in Acadie, which is described as stretching from the 40th to the 46th degree
of north latitude, with authority to extend the power of the French over that
country and its inhabitants, to give laws to the people, to treat with the natives and
enforce the observance of treaties, and to parcel out and give title to lands
according to his own judgment.
Those relations which were to exist between the discoverer and the natives were to
be regulated by themselves. The rights thus acquired being exclusive, no other
power could interpose between them.
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Page 21 U. S. 574
In the establishment of these relations, the rights of the original inhabitants were in
no instance entirely disregarded, but were necessarily to a considerable extent
impaired. They were admitted to be the rightful occupants of the soil, with a legal
as well as just claim to retain possession of it, and to use it according to their own
discretion; but their rights to complete sovereignty as independent nations were
necessarily diminished, and their power to dispose of the soil at their own will to
whomsoever they pleased was denied by the original fundamental principle that
discovery gave exclusive title to those who made it.
France also founded her title to the vast territories she claimed in America on
discovery. However
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Page 21 U. S. 575
The states of Holland also made acquisitions in America and sustained their right
on the common principle adopted by all Europe. They allege, as we are told by
Smith in his History of New York, that Henry Hudson, who sailed, as they say,
under the orders of their East India Company, discovered the country from the
Delaware to the Hudson, up which he sailed to the 43d degree of north latitude,
and this country they claimed under the title acquired by this voyage.
chanrobl esvirtualawlibrary
While the different nations of Europe respected the right of the natives as
occupants, they asserted the ultimate dominion to be in themselves, and claimed
and exercised, as a consequence of this ultimate dominion, a power to grant the
soil while yet in possession of the natives. These grants have been understood by
all to convey a title to the grantees, subject only to the Indian right of occupancy.
The history of America from its discovery to the present day proves, we think, the
universal recognition of these principles.
Spain did not rest her title solely on the grant of the Pope. Her discussions
respecting boundary, with France, with Great Britain, and with the United States
Page 21 U. S. 576
Their first object was commercial, as appears by a grant made to a company of
merchants in 1614, but in 1621 the States General made, as we are told by Mr.
Smith, a grant of the country to the West India Company by the name of New
Netherlands.
The claim of the Dutch was always contested by the English -- not because they
questioned the title given by discovery, but because they insisted on being
themselves the rightful claimants under that title. Their pretensions were finally
decided by the sword.
No one of the powers of Europe gave its full assent to this principle more
unequivocally than England. The documents upon this subject are ample and
complete. So early as the year 1496, her monarch granted a commission to the
Cabots to discover countries then unknown to Christian people and to take
possession of them in the name of the King of England. Two years afterwards,
Cabot proceeded on this voyage and discovered the continent of North America,
along which he sailed as far south as Virginia. To this discovery the English trace
their title.
In this first effort made by the English government to acquire territory on this
continent we perceive a complete recognition of the principle which has been
mentioned. The right of discovery given by this commission is confined to
countries "then unknown to all Christian people," and of these countries Cabot was
empowered to take possession in the name of the King of England. Thus asserting
a right to take possession
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In 1609, after some expensive and not very successful attempts at settlement had
been made, a new and more enlarged charter was given by the Crown to the first
colony, in which the King granted to the "Treasurer and Company of Adventurers
of the City of London for the first colony in Virginia," in absolute property, the
lands extending along the seacoast four hundred miles, and
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Page 21 U. S. 578
into the land throughout from sea to sea. This charter, which is a part of the special
verdict in this cause, was annulled, so far as respected the rights of the company,
by the judgment of the Court of King's Bench on a writ ofquo warranto, but the
whole effect allowed to this judgment was to revest in the Crown the powers of
government and the title to the lands within its limits.
At the solicitation of those who held under the grant to the second or northern
colony, a new and more enlarged charter was granted to the Duke of Lenox and
others in 1620, who were denominated the Plymouth Company, conveying to them
in absolute property all the lands between the 40th and 48th degrees of north
latitude.
Page 21 U. S. 577
notwithstanding the occupancy of the natives, who were heathens, and at the same
time admitting the prior title of any Christian people who may have made a
previous discovery.
The same principle continued to be recognized. The charter granted to Sir
Humphrey Gilbert in 1578 authorizes him to discover and take possession of such
remote, heathen, and barbarous lands as were not actually possessed by any
Christian prince or people. This charter was afterwards renewed to Sir Walter
Raleigh in nearly the same terms.
By the charter of 1606, under which the first permanent English settlement on this
continent was made, James I granted to Sir Thomas Gates and others those
territories in America lying on the seacoast between the 34th and 45th degrees of
north latitude and which either belonged to that monarch or were not then
possessed by any other Christian prince or people. The grantees were divided into
two companies at their own request. The first or southern colony was directed to
settle between the 34th and 41st degrees of north latitude, and the second or
northern colony between the 38th and 45th degrees.
Under this patent New England has been in a great measure settled. The company
conveyed to Henry Rosewell and others, in 1627, that territory which is now
Massachusetts, and in 1628 a charter of incorporation comprehending the powers
of government was granted to the purchasers.
Great part of New England was granted by this company, which at length divided
their remaining lands among themselves, and in 1635 surrendered their charter to
the Crown. A patent was granted to Gorges for Maine, which was allotted to him in
the division of property.
All the grants made by the Plymouth Company, so far as we can learn, have been
respected. In pursuance of the same principle, the King, in 1664, granted to the
Duke of York the country of New England as far south as the Delaware
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Page 21 U. S. 579
Bay. His Royal Highness transferred New Jersey to Lord Berkeley and Sir George
Carteret.
In 1663, the Crown granted to Lord Clarendon and others the country lying
between the 36th degree of north latitude and the River St. Mathes, and in 1666 the
proprietors obtained from the Crown a new charter granting to them that province
in the King's dominions in North America which lies from 36 degrees 30 minutes
north latitude to the 29th degree, and from the Atlantic ocean to the South sea.
a revolution was effected by the people, who shook off their obedience to the
proprietors and declared their dependence immediately on the Crown. The King,
however, purchased the title of those who were disposed to sell. One of them, Lord
Carteret, surrendered his interest in the government but retained his title to the soil.
That
Thus has our whole country been granted by the Crown while in the occupation of
the Indians. These grants purport to convey the soil as well as the right of
dominion to the grantees. In those governments which were denominated royal,
where the right to the soil was not vested in individuals, but remained in the Crown
or was vested in the colonial government, the King claimed and exercised the right
of granting lands and of dismembering the government at his will. The grants
made out of the two original colonies, after the resumption of their charters by the
Crown, are examples of this. The governments of New England, New York, New
Jersey, Pennsylvania, Maryland, and a part of Carolina were thus created. In all of
them, the soil, at the time the grants were made, was occupied by the Indians. Yet
almost every title within those governments is dependent on these grants. In some
instances, the soil was conveyed by the Crown unaccompanied by the powers of
government, as in the case of the northern neck of Virginia. It has never
Page 21 U. S. 581
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title was respected till the revolution, when it was forfeited by the laws of war.
Further proofs of the extent to which this principle has been recognized will be
found in the history of the wars, negotiations, and treaties which the different
nations claiming territory in America have carried on and held with each other.
The contests between the cabinets of Versailles and Madrid respecting the territory
on the northern coast of the Gulf of Mexico were fierce and bloody, and continued
until the establishment of a Bourbon on the throne of Spain produced such
amicable dispositions in the two Crowns as to suspend or terminate them.
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Page 21 U. S. 580
been objected to this or to any other similar grant that the title as well as
possession was in the Indians when it was made and that it passed nothing on that
account.
These various patents cannot be considered as nullities, nor can they be limited to a
mere grant of the powers of government. A charter intended to convey political
power only would never contain words expressly granting the land, the soil, and
the waters. Some of them purport to convey the soil alone, and in those cases in
which the powers of government as well as the soil are conveyed to individuals,
the Crown has always acknowledged itself to be bound by the grant. Though the
power to dismember regal governments was asserted and exercised, the power to
dismember proprietary governments was not claimed, and in some instances, even
after the powers of government were revested in the Crown, the title of the
proprietors to the soil was respected.
Charles II was extremely anxious to acquire the property of Maine, but the
grantees sold it to Massachusetts, and he did not venture to contest the right of that
colony to the soil. The Carolinas were originally proprietary governments. In 1721,
Between France and Great Britain, whose discoveries as well as settlements were
nearly contemporaneous, contests for the country actually covered by the Indians
began as soon as their settlements approached each other, and were continued until
finally settled in the year 1763 by the Treaty of Paris.
Each nation had granted and partially settled the country, denominated by the
French Acadie, and by the English Nova Scotia. By the 12th article of the Treaty of
Utrecht, made in 1703, his most Christian Majesty ceded to the Queen of Great
Britain "all Nova Scotia or Acadie, with its ancient boundaries." A great part of the
ceded territory was in the possession of the Indians, and the extent of the cession
could not be adjusted by the commissioners to whom it was to be referred.
The Treaty of Aix la Chapelle, which was made
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Page 21 U. S. 582
on the principle of the status ante bellum, did not remove this subject of
controversy. Commissioners for its adjustment were appointed whose very able
and elaborate, though unsuccessful, arguments in favor of the title of their
respective sovereigns show how entirely each relied on the title given by discovery
to lands remaining in the possession of Indians.
After the termination of this fruitless discussion, the subject was transferred to
Europe and taken up by the cabinets of Versailles and London. This controversy
embraced not only the boundaries of New England, Nova Scotia, and that part of
Canada which adjoined those colonies, but embraced our whole western country
also. France contended not only that the St. Lawrence was to be considered as the
center of Canada, but that the Ohio was within that colony. She founded this claim
on discovery and on having used that river for the transportation of troops in a war
with some southern Indians.
This river was comprehended in the chartered limits of Virginia, but though the
right of England to a reasonable extent of country in virtue of her discovery of the
seacoast and of the settlements she made on it, was not to be questioned, her claim
of all the lands to the Pacific Ocean because she had discovered the country
washed by the Atlantic, might, without derogating from the principle recognized
by all, be deemed extravagant. It interfered, too, with the claims of France founded
on the same principle. She therefore sought to strengthen her original title to
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Page 21 U. S. 583
the lands in controversy by insisting that it had been acknowledged by France in
the 15th article of the Treaty of Utrecht. The dispute respecting the construction of
that article has no tendency to impair the principle, that discovery gave a title to
lands still remaining in the possession of the Indians. Whichever title prevailed, it
was still a title to lands occupied by the Indians, whose right of occupancy neither
controverted and neither had then extinguished.
Page 21 U. S. 584
and treated as an invasion of the territories of France.
By the 20th article of the same treaty, Spain ceded Florida, with its dependencies
and all the country she claimed east or southeast of the Mississippi, to Great
Britain. Great part of this territory also was in possession of the Indians.
By a secret treaty which was executed about the same time, France ceded
Louisiana to Spain, and Spain has since retroceded the same country to France. At
the time both of its cession and retrocession, it was occupied chiefly by the
Indians.
Thus all the nations of Europe who have acquired territory on this continent have
asserted in themselves and have recognized in others the exclusive right of the
discoverer to appropriate the lands occupied by the Indians. Have the American
states rejected or adopted this principle?
By the treaty which concluded the war of our revolution, Great Britain
relinquished all claim not only to the government, but to the "propriety and
territorial rights of the United States" whose boundaries were fixed in the second
article. By this treaty the powers of government and the right to soil which had
previously been in Great Britain passed definitively to these states. We had before
taken possession of them by declaring independence, but neither the declaration of
independence nor the treaty confirming it could give us more than that which we
before possessed or to which Great Britain was before entitled. It
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These conflicting claims produced a long and bloody war which was terminated by
the conquest of the whole country east of the Mississippi. In the treaty of 1763,
France ceded and guaranteed to Great Britain all Nova Scotia, or Acadie, and
Canada, with their dependencies, and it was agreed that the boundaries between
the territories of the two nations in America should be irrevocably fixed by a line
drawn from the source of the Mississippi, through the middle of that river and the
lakes Maurepas and Ponchartrain, to the sea. This treaty expressly cedes, and has
always been understood to cede, the whole country on the English side of the
dividing line between the two nations, although a great and valuable part of it was
occupied by the Indians. Great Britain, on her part, surrendered to France all her
pretensions to the country west of the Mississippi. It has never been supposed that
she surrendered nothing, although she was not in actual possession of a foot of
land. She surrendered all right to acquired the country, and any after attempt to
purchase it from the Indians would have been considered
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Page 21 U. S. 585
has never been doubted that either the United States or the several states had a
clear title to all the lands within the boundary lines described in the treaty, subject
only to the Indian right of occupancy, and that the exclusive power to extinguish
that right was vested in that government which might constitutionally exercise it.
Virginia, particularly, within whose chartered limits the land in controversy lay,
passed an act in the year 1779 declaring her
"exclusive right of preemption from the Indians of all the lands within the limits of
her own chartered territory, and that no person or persons whatsoever have or ever
had a right to purchase any lands within the same from any Indian nation except
only persons duly authorized to make such purchase, formerly for the use and
benefit of the colony and lately for the Commonwealth."
The ceded territory was occupied by numerous and warlike tribes of Indians, but
the exclusive right of the United States to extinguish their title and to grant the soil
has never, we believe, been doubted.
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The act then proceeds to annul all deeds made by Indians to individuals for the
private use of the purchasers.
Without ascribing to this act the power of annulling vested rights or admitting it to
countervail the testimony furnished by the marginal note opposite to the title of the
law forbidding purchases from the Indians in the revisals of the Virginia statutes
stating that law to be repealed, it may safely be considered as an unequivocal
affirmance on the part of Virginia of the broad principle which had always been
maintained that the exclusive right to purchase from the Indians resided in the
government.
In pursuance of the same idea, Virginia proceeded at the same session to open
her
Page 21 U. S. 587
After these states became independent, a controversy subsisted between them and
Spain respecting boundary. By the treaty of 1795, this controversy was adjusted
and Spain ceded to the United States the territory in question. This territory, though
claimed by both nations, was chiefly in the actual occupation of Indians.
The magnificent purchase of Louisiana was the purchase from France of a country
almost entirely occupied by numerous tribes of Indians who are in fact
independent. Yet any attempt of others to intrude into that country would be
considered as an aggression which would justify war.
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Page 21 U. S. 586
land office for the sale of that country which now constitutes Kentucky, a country
every acre of which was then claimed and possessed by Indians, who maintained
their title with as much persevering courage as was ever manifested by any people.
The states, having within their chartered limits different portions of territory
covered by Indians, ceded that territory generally to the United States on
conditions expressed in their deeds of cession, which demonstrate the opinion that
they ceded the soil as well as jurisdiction, and that in doing so they granted a
productive fund to the government of the Union. The lands in controversy lay
within the chartered limits of Virginia, and were ceded with the whole country
northwest of the River Ohio. This grant contained reservations and stipulations
which could only be made by the owners of the soil, and concluded with a
stipulation that
Our late acquisitions from Spain are of the same character, and the negotiations
which preceded those acquisitions recognize and elucidate the principle which has
been received as the foundation of all European title in America.
The United States, then, has unequivocally acceded to that great and broad rule by
which its civilized inhabitants now hold this country. They hold and assert in
themselves the title by which it was acquired. They maintain, as all others have
maintained, that discovery gave an exclusive right to extinguish the Indian title of
occupancy either by purchase or by conquest, and gave also a right to such a
degree of sovereignty as the circumstances of the people would allow them to
exercise.
The power now possessed by the government of the United States to grant lands,
resided, while we were colonies, in the Crown, or its grantees. The validity of the
titles given by either has never
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Page 21 U. S. 588
"all the lands in the ceded territory not reserved should be considered as a common
fund for the use and benefit of such of the United States as have become or shall
become members of the confederation, . . . according to their usual respective
proportions in the general charge and expenditure, and shall be faithfully and bona
fide disposed of for that purpose, and for no other use or purpose whatsoever."
been questioned in our courts. It has been exercised uniformly over territory in
possession of the Indians. The existence of this power must negative the existence
of any right which may conflict with and control it. An absolute title to lands
cannot exist at the same time in different persons or in different governments. An
absolute must be an exclusive title, or at least a title which excludes all others not
compatible with it. All our institutions recognize the absolute title of the Crown,
subject only to the Indian right of occupancy, and recognize the absolute title of the
Crown to extinguish that right. This is incompatible with an absolute and complete
title in the Indians.
When the conquest is complete and the conquered inhabitants can be blended with
the conquerors
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Page 21 U. S. 590
We will not enter into the controversy whether agriculturists, merchants, and
manufacturers have a right on abstract principles to expel hunters from the territory
they possess or to contract their limits. Conquest gives a title which the courts of
the conqueror cannot deny, whatever the private and speculative opinions of
individuals may be, respecting the original justice of the claim which has been
successfully asserted. The British government, which was then our government
and whose rights have passed to the United States, asserted title to all the lands
occupied by Indians within the chartered limits of the British colonies. It asserted
also a limited sovereignty over them and the exclusive right of extinguishing the
title which occupancy gave to them. These claims have been maintained and
established as far west as the River Mississippi by the sword. The title
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Page 21 U. S. 589
to a vast portion of the lands we now hold originates in them. It is not for the
courts of this country to question the validity of this title or to sustain one which is
incompatible with it.
Although we do not mean to engage in the defense of those principles which
Europeans have applied to Indian title, they may, we think, find some excuse, if
not justification, in the character and habits of the people whose rights have been
wrested from them.
The title by conquest is acquired and maintained by force. The conqueror
prescribes its limits. Humanity, however, acting on public opinion, has established,
as a general rule, that the conquered shall not be wantonly oppressed, and that their
condition shall remain as eligible as is compatible with the objects of the conquest.
Most usually, they are incorporated with the victorious nation, and become
subjects or citizens of the government with which they are connected. The new and
old members of the society mingle with each other; the distinction between them is
gradually lost, and they make one people. Where this incorporation is practicable,
humanity demands and a wise policy requires that the rights of the conquered to
property should remain unimpaired; that the new subjects should be governed as
equitably as the old, and that confidence in their security should gradually banish
the painful sense of being separated from their ancient connections, and united by
force to strangers.
or safely governed as a distinct people, public opinion, which not even the
conqueror can disregard, imposes these restraints upon him, and he cannot neglect
them without injury to his fame and hazard to his power.
But the tribes of Indians inhabiting this country were fierce savages whose
occupation was war and whose subsistence was drawn chiefly from the forest. To
leave them in possession of their country was to leave the country a wilderness; to
govern them as a distinct people was impossible because they were as brave and as
high spirited as they were fierce, and were ready to repel by arms every attempt on
their independence.
What was the inevitable consequence of this state of things? The Europeans were
under the necessity either of abandoning the country and relinquishing their
pompous claims to it or of enforcing those claims by the sword, and by the
adoption of principles adapted to the condition of a people with whom it was
impossible to mix and who could not be governed as a distinct society, or of
remaining in their neighborhood, and exposing themselves and their families to the
perpetual hazard of being massacred.
Frequent and bloody wars, in which the whites were not always the aggressors,
unavoidably ensued. European policy, numbers, and skill prevailed. As the white
population advanced, that of the Indians necessarily receded. The country in the
immediate neighborhood of agriculturists became unfit for them. The game fled
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Page 21 U. S. 591
into thicker and more unbroken forests, and the Indians followed. The soil to
which the Crown originally claimed title, being no longer occupied by its ancient
inhabitants, was parceled out according to the will of the sovereign power and
taken possession of by persons who claimed immediately from the Crown or
mediately through its grantees or deputies.
That law which regulates and ought to regulate in general the relations between the
conqueror and conquered was incapable of application to a people under such
circumstances. The resort to some new and different rule better adapted to the
actual state of things was unavoidable. Every rule which can be suggested will be
found to be attended with great difficulty.
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Page 21 U. S. 593
However extravagant the pretension of converting the discovery of an inhabited
country into conquest may appear; if the principle has been asserted in the first
instance, and afterwards sustained; if a country has been acquired and held under
it; if the property of the great mass of the community originates in it, it becomes
the law of the land and cannot be questioned. So, too, with respect to the
concomitant principle that the Indian inhabitants are to be considered merely as
occupants, to be protected, indeed, while in peace, in the possession of their lands,
but to be deemed incapable of transferring the absolute title to others. However
this restriction may be opposed to natural right, and to the usages of civilized
nations, yet if it be indispensable to that system under which the country has been
settled, and be
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Page 21 U. S. 592
adapted to the actual condition of the two people, it may perhaps be supported by
reason, and certainly cannot be rejected by courts of justice.
This question is not entirely new in this Court. The case of Fletcher v. Peck grew
out of a sale made by the State of Georgia of a large tract of country within the
limits of that state, the grant of which was afterwards resumed. The action was
brought by a subpurchaser on the contract of sale, and one of the covenants in the
deed was that the State of Georgia was, at the time of sale, seized in fee of the
premises. The real question presented by the issue was whether the seizin in fee
was in the State of Georgia or in the United States. After stating that this
controversy between the several states and the United States had been
compromised, the court thought in necessary to notice the Indian title, which,
although entitled to the respect of all courts until it should be legitimately
extinguished, was declared not to be such as to be absolutely repugnant to a seizin
in fee on the part of the state.
This opinion conforms precisely to the principle which has been supposed to be
recognized by all European governments from the first settlement of America. The
absolute ultimate title has been considered as acquired by discovery, subject only
to the Indian title of occupancy, which title the discoverers possessed the exclusive
right of acquiring. Such a right is no more incompatible with a seizin in fee than a
lease for years, and might as effectually bar an ejectment.
which deserves to be considered. The title of the Crown, whatever it might be,
could be acquired only by a conveyance from the Crown. If an individual might
extinguish the Indian title for his own benefit, or in other words might purchase it,
still he could acquire only that title. Admitting their power to change their laws or
usages so far as to allow an individual to separate a portion of their lands from the
common stock and hold it in severalty, still it is a part of their territory and is held
under them by a title dependent on their laws. The grant derives its efficacy from
their will, and if they choose to resume it and make a different disposition of the
land, the courts of the United States cannot interpose for the protection of the title.
The person who purchases lands from the Indians within their territory
incorporates himself with them so far as respects the property purchased; holds
their title under their protection and subject to their laws. If they annul the grant,
we know of no tribunal which can revise and set aside the proceeding. We know of
no principle which can distinguish this case from a grant made to a native Indian,
authorizing him to hold a particular tract of land in severalty.
As such a grant could not separate the Indian from his nation, nor give a title which
our courts could distinguish from the title of his tribe, as it might still be conquered
from, or ceded by his tribe, we can perceive no legal principle which will authorize
a court to say that different consequences are attached to this purchase because it
was made by a stranger. By the treaties concluded
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Page 21 U. S. 594
between the United States and the Indian nations whose title the plaintiffs claim,
the country comprehending the lands in controversy has been ceded to the United
States without any reservation of their title. These nations had been at war with the
United States, and had an unquestionable right to annul any grant they had made to
American citizens. Their cession of the country without a reservation of this land
affords a fair presumption that they considered it as of no validity. They ceded to
the United States this very property, after having used it in common with other
lands as their own, from the date of their deeds to the time of cession, and the
attempt now made, is to set up their title against that of the United States.
The proclamation issued by the King of Great Britain in 1763 has been considered,
and we think with reason, as constituting an additional objection to the title of the
plaintiffs.
By that proclamation, the Crown reserved under its own dominion and protection,
for the use of the Indians, "all the land and territories lying to the westward of the
sources of the rivers which fall into the sea from the west and northwest," and
strictly forbade all British subjects from making any purchases or settlements
whatever or taking possession of the reserved lands.
It has been contended that in this proclamation, the King transcended his
constitutional powers, and the case ofCampbell v. Hall, reported by Cowper, is
relied on to support this position.
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Page 21 U. S. 595
It is supposed to be a principle of universal law that if an uninhabited country be
discovered by a number of individuals who acknowledge no connection with and
owe no allegiance to any government whatever, the country becomes the property
of the discoverers, so far at least as they can use it. They acquire a title in common.
The title of the whole land is in the whole society. It is to be divided and parceled
out according to the will of the society, expressed by the whole body or by that
organ which is authorized by the whole to express it.
Page 21 U. S. 596
impairing its right to grant lands within the chartered limits of such colony. In
addition to the proof of this principle, furnished by the immense grants already
mentioned of lands lying within the chartered limits of Virginia, the continuing
right of the Crown to grant lands lying within that colony was always admitted. A
title might be obtained either by making an entry with the surveyor of a county in
pursuance of law or by an order of the governor in council, who was the deputy of
the King, or by an immediate grant from the Crown. In Virginia, therefore, as well
as elsewhere in the British dominions, the complete title of the Crown to vacant
lands was acknowledged.
So far as respected the authority of the Crown, no distinction was taken between
vacant lands and lands occupied by the Indians. The title, subject only to the right
of occupancy by the Indians, was admitted to be in the King, as was his right to
grant that title. The lands, then, to which this proclamation referred were lands
which the King had a right to grant, or to reserve for the Indians.
According to the theory of the British Constitution, the royal prerogative is very
extensive so far as respects the political relations between Great Britain and
foreign nations. The peculiar situation of the Indians, necessarily considered in
some respects as a dependent and in some respects as a distinct people occupying a
country claimed by Great Britain, and yet too powerful and brave not to be
dreaded as formidable enemies, required that means should be adopted for
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If the discovery be made and possession of the country be taken under the
authority of an existing government, which is acknowledged by the emigrants, it is
supposed to be equally well settled, that the discovery is made for the whole
nation, that the country becomes a part of the nation, and that the vacant soil is to
be disposed of by that organ of the government which has the constitutional power
to dispose of the national domains, by that organ in which all vacant territory is
vested by law.
According to the theory of the British Constitution, all vacant lands are vested in
the Crown, as representing the nation, and the exclusive power to grant them is
admitted to reside in the Crown as a branch of the royal prerogative. It has been
already shown that this principle was as fully recognized in America as in the
Island of Great Britain. All the lands we hold were originally granted by the
Crown, and the establishment of a regal government has never been considered
as
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Page 21 U. S. 597
the preservation of peace, and that their friendship should be secured by quieting
their alarms for their property. This was to be effected by restraining the
encroachments of the whites, and the power to do this was never, we believe,
denied by the colonies to the Crown.
In the case of Campbell v. Hall, that part of the proclamation was determined to be
illegal, which imposed a tax on a conquered province, after a government had been
bestowed upon it. The correctness of this decision cannot be questioned, but its
application to the case at bar cannot be admitted. Since the expulsion of the Stuart
family, the power of imposing taxes by proclamation has never been claimed as a
branch of regal prerogative, but the powers of granting, or refusing to grant, vacant
lands, and of restraining encroachments on the Indians have always been asserted
and admitted.
The authority of this proclamation, so far as it respected this continent, has never
been denied, and the titles it gave to lands have always been sustained in our
courts.
In the argument of this cause, the counsel for the plaintiffs have relied very much
on the opinions expressed by men holding offices of trust, and on various
proceedings in America to sustain titles to land derived from the Indians.
The collection of claims to lands lying in the western country made in the 1st
volume of the Laws of the United States has been referred to, but we find nothing
in that collection to support the argument. Most of the titles were derived
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Page 21 U. S. 598
from persons professing to act under the authority of the government existing at
the time, and the two grants under which the plaintiffs claim are supposed by the
person under whose inspection the collection was made to be void, because
forbidden by the royal proclamation of 1763. It is not unworthy of remark that the
usual mode adopted by the Indians for granting lands to individuals has been to
reserve them in a treaty or to grant them under the sanction of the commissioners
with whom the treaty was negotiated. The practice in such case to grant to the
Crown for the use of the individual is some evidence of a general understanding
that the validity even of such a grant depended on its receiving the royal sanction.
The controversy between the Colony of Connecticut and the Mohegan Indians
depended on the nature and extent of a grant made by those Indians to the colony;
on the nature and extent of the reservations made by the Indians, in their several
deeds and treaties, which were alleged to be recognized by the legitimate authority;
and on the violation by the colony of rights thus reserved and secured. We do not
perceive in that case any assertion of the principle that individuals might obtain a
complete and valid title from the Indians.
It has been stated that in the memorial transmitted from the Cabinet of London to
that of Versailles, during the controversy between the two nations respecting
boundary which took place in 1755, the Indian right to the soil is recognized.
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for the purpose of sustaining the claim of His Britannic Majesty to dominion over
them.
The opinion of the Attorney and Solicitor General, Pratt and Yorke, have been
adduced to prove that in the opinion of those great law officers, the Indian grant
could convey a title to the soil without a patent emanating from the Crown. The
opinion of those persons would certainly be of great authority on such a question,
and we were not a little surprised when it was read, at the doctrine it seemed to
advance. An opinion so contrary to the whole practice of the Crown and to the
uniform opinions given on all other occasions by its great law officers ought to be
very explicit and accompanied by the circumstances under which it was given, and
to which it was applied before we can be assured that it is properly understood. In
a pamphlet written for the purpose of asserting the Indian title, styled "Plain
Facts," the same opinion is quoted, and is said to relate to purchases made in the
East Indies. It is, of course, entirely inapplicable to purchases made in America.
Chalmers, in whose collection this opinion is found, does not say to whom it
applies, but there is reason to believe that the author of Plain Facts is, in this
respect, correct. The opinion commences thus:
"In respect to such places as have been or shall be acquired by treaty or grant from
any of the Indian princes or governments,
Page 21 U. S. 600
your Majesty's letters patent are not necessary."
The words "princes or governments" are usually applied to the East Indians, but
not to those of North America. We speak of their sachems, their warriors, their
chiefmen, their nations or tribes, not of their "princes or governments." The
question on which the opinion was given, too, and to which it relates, was whether
the King's subjects carry with them the common law wherever they may form
settlements. The opinion is given with a view to this point, and its object must be
kept in mind while construing its expressions.
Much reliance is also placed on the fact, that many tracts are now held in the
United States under the Indian title, the validity of which is not questioned.
Page 21 U. S. 599
But this recognition was made with reference to their character as Indians and for
the purpose of showing that they were fixed to a particular territory. It was made
Before the importance attached to this fact is conceded, the circumstances under
which such grants were obtained, and such titles are supported, ought to be
considered. These lands lie chiefly in the eastern states. It is known that the
Plymouth Company made many extensive grants which, from their ignorance of
the country, interfered with each other. It is also known that Mason to whom New
Hampshire, and Gorges, to whom Maine was granted, found great difficulty in
managing such unwieldy property. The country was settled by emigrants, some
from Europe, but chiefly from Massachusetts, who took possession of lands they
found unoccupied, and secured themselves in that possession by the best means in
their power. The disturbances in
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"Thomas Chifflinch and others, having, in the right of Major Asperton, a just
propriety in the Narraghanset Country, in New England, by grants from the native
princes of that country, and being desirous to improve it into an English colony, . . .
are yet daily disturbed."
The impression this language might make, if viewed apart from the circumstances
under which it was employed, will be effaced, when considered in connection with
those circumstances.
Page 21 U. S. 601
England, and the civil war and revolution which followed those disturbances,
prevented any interference on the part of the mother country, and the proprietors
were unable to maintain their title. In the meantime, Massachusetts claimed the
country and governed it. As her claim was adversary to that of the proprietors, she
encouraged the settlement of persons made under her authority, and encouraged
likewise their securing themselves in possession, by purchasing the acquiescence
and forbearance of the Indians. After the restoration of Charles II, Gorges and
Mason, when they attempted to establish their title, found themselves opposed by
men who held under Massachusetts and under the Indians. The title of the
proprietors was resisted, and though in some cases compromises were made and in
some, the opinion of a court was given ultimately in their favor, the juries found
uniformly against them. They became wearied with the struggle, and sold their
property. The titles held under the Indians were sanctioned by length of possession,
but there is no case, so far as we are informed, of a judicial decision in their favor.
In the year 1635, the Plymouth Company surrendered their charter to the Crown.
About the same time, the religious dissentions of Massachusetts expelled from that
colony several societies of individuals, one of which settled in Rhode Island, on
lands purchased from the Indians. They were not within the chartered limits of
Massachusetts, and the English government was too much occupied at home to
bestow its attention on this subject. There existed no authority to arrest their
settlement of the country. If they obtained the Indian title, there were none to assert
the title of the Crown. Under these circumstances, the settlement became
considerable. Individuals acquired separate property in lands which they cultivated
and improved; a government was established among themselves, and no power
existed in America which could rightfully interfere with it.
On the restoration of Charles II, this small society
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Page 21 U. S. 603
Much reliance has also been placed on a recital contained in the charter of Rhode
Island, and on a letter addressed to the governors of the neighboring colonies, by
the King's command, in which some expressions are inserted, indicating the royal
approbation of titles acquired from the Indians.
hastened to acknowledge his authority, and to solicit his confirmation of their title
to the soil, and to jurisdiction over the country. Their solicitations were successful,
and a charter was granted to them, containing the recital which has been
mentioned.
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.
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Page 21 U. S. 604
The letter was written a few months before the charter was issued, apparently at
the request of the agents of the intended colony, for the sole purpose of preventing
the trespasses of neighbors, who were disposed to claim some authority over them.
The King, being willing himself to ratify and confirm their title was, of course,
inclined to quiet them in their possession.
This charter and this letter certainly sanction a previous unauthorized purchase
from Indians under the circumstances attending that particular purchase, but are far
from supporting the general proposition, that a title acquired from the Indians
would be valid against a title acquired from the Crown, or without the
confirmation of the Crown.
The acts of the several colonial assemblies prohibiting purchases from the Indians
have also been relied on as proving that, independent of such prohibitions, Indian
deeds would be valid. But we think this fact, at most, equivocal. While the
existence of such purchases would justify their prohibition, even by colonies which
considered Indian deeds as previously invalid, the fact that such acts have been
generally passed, is strong evidence of the general opinion, that such purchases are
opposed by the soundest principles of wisdom and national policy.
After bestowing on this subject a degree of attention which was more required by
the magnitude of the interest in litigation, and the able and elaborate arguments of
the bar, than by its intrinsic difficulty, the court is decidedly of opinion, that the
plaintiffs do not exhibit a title which can
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Page 21 U. S. 605
be sustained in the courts of the United States, and that there is no error in the
judgment which was rendered against them in the District Court of Illinois.
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.
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.
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.
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This was an application to the Philippine Court of Land Registration for the
registration of certain land. The application was granted by the court on March 4,
1904. An appeal was taken to the Court of First Instance of the Province of
Benguet on behalf of the government of the Philippines, and also on behalf of the
United States, those governments having taken possession of the property for
public and military purposes. The Court of First Instance found the facts and
dismissed the application upon grounds of law. This judgment was affirmed by the
supreme court, 7 Phil. 132, and the case then was brought here by writ of error.
The material facts found are very few. The applicant and plaintiff in error is an
Igorot of the Province of Benguet, where the land lies. For more than fifty years
before the Treaty of
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When theory is left on one side, sovereignty is a question of strength, and may
vary in degree. How far a new sovereign shall insist upon the theoretical relation
of the subjects to the head in the past, and how far it shall recognize actual facts,
are matters for it to decide.
The Province of Benguet was inhabited by a tribe that the Solicitor General, in his
argument, characterized as a savage tribe that never was brought under the civil or
military government of the Spanish Crown. It seems probable, if not certain, that
the Spanish officials would not have granted to anyone in that province the
registration to which formerly the plaintiff was entitled by the Spanish laws, and
which would have made his title beyond question good. Whatever may have been
the technical position of Spain, it does not follow that, in the view of the United
States, he had lost all rights and was a mere trespasser when the present
government seized his land. The argument to that effect seems to amount to a
denial of native titles throughout an important part of the island of Luzon, at least,
for the want of ceremonies which the Spaniards would not have permitted and had
not the power to enforce.
The acquisition of the Philippines was not like the settlement of the white race in
the United States. Whatever consideration may have been shown to the North
American Indians, the dominant purpose of the whites in America was to occupy
the land. It is obvious that, however stated, the reason for our taking over the
Philippines was different. No one, we suppose, would deny that, so far as
consistent with paramount necessities, our first object in the internal administration
of the islands is to do justice to the natives, not to exploit their country for private
gain. By the Organic Act of July 1, 1902, c. 1369, 12, 32 Stat. 691, all the
property and rights acquired there by the
"no law shall be enacted in said islands which shall deprive any person of life,
liberty, or property without due process of law, or deny to any person therein the
equal protection of the laws."
5. In the light of the declaration that we have quoted from 12, it is hard to
believe that the United States was ready to declare in the next breath that "any
person" did not embrace the inhabitants of Benguet, or that it meant by "property"
only that which had become such by ceremonies of which presumably a large part
of the inhabitants never had heard, and that it proposed to treat as public land what
they, by native custom and by long association -- one of the profoundest factors in
human thought -- regarded as their own.
It is true that, by 14, the government of the Philippines is empowered to enact
rules and prescribe terms for perfecting titles to public lands where some, but not
all, Spanish conditions had been fulfilled, and to issue patents to natives for not
more than sixteen hectares of public lands actually occupied by the native or his
ancestors before August 13, 1898. But this section perhaps might be satisfied if
confined to cases where the occupation was of land admitted to be public land, and
had not continued for such a length of time and under such circumstances as to
give rise to the understanding that the occupants were owners at that date. We
hesitate to suppose that it was intended to declare every native who had not a paper
title a trespasser, and to set the claims of all the wilder tribes afloat. It is true again
that there is excepted from the provision that we have quoted as to the
administration of the property and rights acquired by the United States such land
and property as shall be designated by the President for military or other
reservations,
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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
"Where such possessors shall not be able to produce title deeds, it shall be
sufficient if they shall show that ancient possession, as a valid title by
prescription."
It may be that this means possession from before 1700; but, at all events, the
principle is admitted. As prescription, even against Crown lands, was recognized
by the laws of Spain, we see no sufficient reason for hesitating to admit that it was
recognized in the Philippines in regard to lands over which Spain had only a paper
sovereignty.
The question comes, however, on the decree of June 25, 1880, for the adjustment
of royal lands wrongfully occupied by private individuals in the Philippine Islands.
This begins with the usual theoretic assertion that, for private ownership, there
must have been a grant by competent authority; but instantly descends to fact by
providing that, for all legal effects, those who have been in possession for certain
times shall be deemed owners. For cultivated land, twenty years, uninterrupted, is
enough. For uncultivated, thirty. Art. 5. So that, when this decree went into effect,
the applicant's father was owner of the land by the very terms of the decree. But, it
is said, the object of this law was to require the adjustment or registration
proceedings that it described, and in that way to require everyone to get a
document of title or lose his land. That purpose may have been entertained, but it
does not appear clearly to have been applicable to all. The regulations purport to
have been made "for the adjustment of royal lands wrongfully occupied by private
individuals." (We follow the translation in the government's brief.) It does not
appear that this land ever was royal land or wrongfully occupied. In Article 6, it is
provided that
"interested parties not included within the two preceding
Page 212 U. S. 462
articles [the articles recognizing prescription of twenty and thirty years] may
legalize their possession, and thereby acquire the full ownership of the said lands,
by means of adjustment proceedings, to be conducted in the following manner."
This seems, by its very terms, not to apply to those declared already to be owners
by lapse of time. Article 8 provides for the case of parties not asking an adjustment
of the lands of which they are unlawfully enjoying the possession, within one year,
and threatens that the treasury "will reassert the ownership of the state over the
lands," and will sell at auction such part as it does not reserve. The applicant's
possession was not unlawful, and no attempt at any such proceedings against him
or his father ever was made. Finally, it should be noted that the natural
construction of the decree is confirmed by the report of the council of state. That
report puts forward as a reason for the regulations that, in view of the condition of
almost all property in the Philippines, it is important to fix its status by general
rules on the principle that the lapse of a fixed period legalizes completely all
possession, recommends in two articles twenty and thirty years, as adopted in the
decree, and then suggests that interested parties not included in those articles may
legalize their possession and acquire ownership by adjustment at a certain price.
It will be perceived that the rights of the applicant under the Spanish law present a
problem not without difficulties for courts of a different legal tradition. We have
deemed it proper on that account to notice the possible effect of the change of
sovereignty and the act of Congress establishing the fundamental principles now to
be observed. Upon a consideration of the whole case, we are of opinion that law
and justice require that the applicant should be granted what he seeks, and should
not be deprived of what, by the practice and belief of those among whom he lived,
was his property, through a refined interpretation of an almost forgotten law of
Spain.
Judgment reversed.
It is true that the language of Articles 4 and 5 attributes title to those "who may
prove" possession for the necessary time, and we do not overlook the argument
that this means may prove in registration proceedings. It may be that an English
conveyancer would have recommended an application under the foregoing decree,
but certainly it was not calculated to convey to the mind of an Igorot chief the
notion that ancient family possessions were in danger, if he had read every word of
it. The words "may prove" (acrediten), as well, or better, in view of the other
provisions, might be taken to mean when called upon to do so in any litigation.
There are indications that registration was expected from all, but none sufficient to
show that, for want of it, ownership actually gained would be lost.
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G.R. No. G.R. No. 173775
October 8, 2008
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
926106 ipso facto converted the island into private ownership. Hence,
they may apply for a title in their name.
A similar argument was squarely rejected by the Court in Collado v.
Court of Appeals.107 Collado, citing the separate opinion of now Chief
Justice Reynato S. Puno in Cruz v. Secretary of Environment and
Natural Resources,107-a ruled:
"Act No. 926, the first Public Land Act, was passed in pursuance of
the provisions of the Philippine Bill of 1902. The law governed the
disposition of lands of the public domain. It prescribed rules and
regulations for the homesteading, selling and leasing of portions of
the public domain of the Philippine Islands, and prescribed the terms
and conditions to enable persons to perfect their titles to public lands
in the Islands. It also provided for the "issuance of patents to certain
native settlers upon public lands," for the establishment of town sites
and sale of lots therein, for the completion of imperfect titles, and for
the cancellation or confirmation of Spanish concessions and grants in
the Islands." In short, the Public Land Act operated on the assumption
that title to public lands in the Philippine Islands remained in the
government; and that the governments title to public land sprung
from the Treaty of Paris and other subsequent treaties between Spain
and the United States. The term "public land" referred to all lands of
the public domain whose title still remained in the government and
are thrown open to private appropriation and settlement, and excluded
the patrimonial property of the government and the friar lands."
Thus, it is plain error for petitioners to argue that under the
Philippine Bill of 1902 and Public Land Act No. 926, mere
possession by private individuals of lands creates the legal
presumption that the lands are alienable and
disposable.108 (Emphasis Ours)
Except for lands already covered by existing titles, Boracay was an
unclassified land of the public domain prior to Proclamation No.
A forested area classified as forest land of the public domain does not
lose such classification simply because loggers or settlers may have
stripped it of its forest cover. Parcels of land classified as forest land
may actually be covered with grass or planted to crops by kaingin
cultivators or other farmers. "Forest lands" do not have to be on
mountains or in out of the way places. Swampy areas covered by
mangrove trees, nipa palms, and other trees growing in brackish or
sea water may also be classified as forest land. The classification is
descriptive of its legal nature or status and does not have to be
descriptive of what the land actually looks like. Unless and until the
land classified as "forest" is released in an official proclamation to
that effect so that it may form part of the disposable agricultural lands
of the public domain, the rules on confirmation of imperfect title do
not apply.115 (Emphasis supplied)
There is a big difference between "forest" as defined in a dictionary
and "forest or timber land" as a classification of lands of the public
domain as appearing in our statutes. One is descriptive of what
appears on the land while the other is a legal status, a classification for
legal purposes.116 At any rate, the Court is tasked to determine
thelegal status of Boracay Island, and not look into its physical layout.
Hence, even if its forest cover has been replaced by beach resorts,
restaurants and other commercial establishments, it has not been
automatically converted from public forest to alienable agricultural
land.
Private claimants cannot rely on Proclamation No. 1801 as basis
for judicial confirmation of imperfect title. The proclamation did
not convert Boracay into an agricultural land. However, private
claimants argue that Proclamation No. 1801 issued by then President
Marcos in 1978 entitles them to judicial confirmation of imperfect
title. The Proclamation classified Boracay, among other islands, as a
tourist zone. Private claimants assert that, as a tourist spot, the island
is susceptible of private ownership.
Proclamation No. 1801 or PTA Circular No. 3-82 did not convert the
whole of Boracay into an agricultural land. There is nothing in the law
or the Circular which made Boracay Island an agricultural land. The
reference in Circular No. 3-82 to "private lands"117 and "areas declared
as alienable and disposable"118 does not by itself classify the entire
island as agricultural. Notably, Circular No. 3-82 makes reference not
only to private lands and areas but also to public forested lands. Rule
VIII, Section 3 provides:
No trees in forested private lands may be cut without prior authority
from the PTA. All forested areas in public lands are declared forest
reserves. (Emphasis supplied)
Clearly, the reference in the Circular to both private and public lands
merely recognizes that the island can be classified by the Executive
department pursuant to its powers under CA No. 141. In fact, Section
5 of the Circular recognizes the then Bureau of Forest Developments
authority to declare areas in the island as alienable and disposable
when it provides:
Subsistence farming, in areas declared as alienable and disposable by
the Bureau of Forest Development.
Therefore, Proclamation No. 1801 cannot be deemed the positive act
needed to classify Boracay Island as alienable and disposable land. If
President Marcos intended to classify the island as alienable and
disposable or forest, or both, he would have identified the specific
limits of each, as President Arroyo did in Proclamation No. 1064. This
was not done in Proclamation No. 1801.
The Whereas clauses of Proclamation No. 1801 also explain the
rationale behind the declaration of Boracay Island, together with other
islands, caves and peninsulas in the Philippines, as a tourist zone and
marine reserve to be administered by the PTA to ensure the
concentrated efforts of the public and private sectors in the
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.
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.
RUBEN T. REYES
Associate Justice
ARTURO D. BRION
Associate Justice
REYNATO S. PUNO
Chief Justice
Chairperson
C E R T I F I C AT I O N
WE CONCUR:.
LEONARDO A.
QUISUMBING
Associate Justice
CONSUELO YNARESSANTIAGO
Associate Justice
ANTONIO T. CARPIO
Associate Justice
CONCHITA CARPIO
MORALES
Associate Justice
ADOLFO S. AZCUNA
Associate Justice
DANTE O. TINGA
Associate Justice
MINITA V. CHICONAZARIO
Associate Justice
PRESBITERO J.
VELASCO, JR.
Associate Justice
ANTONIO EDUARDO B.
NACHURA**
Associate Justice
TERESITA J.
LEONARDO-DE
CASTRO
Associate Justice
Footnotes
* On official leave per Special Order No. 520 dated September
19, 2008.
** No part. Justice Nachura participated in the present case as
Solicitor General.
Rollo (G.R. No. 167707), pp. 37-43. CA-G.R. CV No. 71118,
promulgated on December 9, 2004. Penned by Associate
Justice Isaias P. Dicdican, with Associate Justices Sesinando E.
Villon and Ramon M. Bato, Jr., concurring.
1
Id. at 47-54; Annex "C." Spl. Civil Case No. 5403. Penned by
Judge Niovady M. Marin, RTC, Kalibo, Branch 5.
2
16
17
18
Id. at 51.
19
Id.; PTA Circular No. 3-82, Rule VIII, Sec. 1(3) states:
10
11
12
Records, p. 148.
13
Id.
14
15
Records, p. 148.
23
Id. at 211-121.
24
Id. at 42.
38
See note 8.
25
Id. at 45-46.
39
See note 3.
26
Supra note 3.
40
41
28
29
31
43
44
Id.
32
Id. at 4.
33
Id. at 143.
34
35
59
Id. at 5-11.
60
49
50
62
63
51
52
53
54
65
Id. at 182.
66
68
71
Sec. 2.
77
Lands which were not recorded under the Maura Law and
were not yet covered by Torrens titles.
87
88
40 Phil. 10 (1919).
89
90
78
79
92
Id. at 76.
93
Id. at 219-223.
81
82
95
Id. at 15-16.
83
96
96-a
84
97
The records do not show the manner in which title was issued
to the Heirs of Ciriaco Tirol.
98
Records, p. 179.
99
100
101
102
107
103
107-a
104
108
109
110
111
106
113
114
115
xxxx
(6) All persons who by themselves or their predecessors
in interest have been in the open, continuous exclusive,
116
117
Sec. 3 provides:
118
Sec. 5 states:
Pars. 3-4.
124
127
129
130
131
132
Id., Chapter V.
133
135
MALCOLM, J.:
This is an appeal by the applicant and appellant from a judgment of
the Court of First Instance of Nueva Ecija, denying the registration of
the larger portion of parcel No. 1 (Exhibit A of the petitioner), marked
by the letters A, B, and C on the plan, Exhibit 1, of the Government.
One Restituto Romero y Ponce apparently gained possession of a
considerable tract of land located in the municipality of San Jose,
Province of Nueva Ecija, in the year 1882. He took advantage of the
Royal Decree of February 13, 1894, to obtain a possessory
information title to the land, registered as such on February 8, 1896.
Parcel No. 1, included within the limits of the possessory information
title of Restituto Romero, was sold in February, 1907, to Cornelio
Ramos, the instant petitioner, and his wife Ambrosia Salamanca.
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.)
xxx
xxx
J. H. ANKRON, petitioner-appellee,
vs.
THE GOVERNMENT OF THE PHILIPPINE
ISLANDS, objector-appellant.
Assistant Attorney-General Lacson for appellant.
P. J. Moore for appellee.
JOHNSON, J.:
This action was commenced in the Court of First Instance of the
Province of Davao, Department of Mindanao and Sulu. Its purpose
was to have registered, under the Torrens system, a certain piece or
parcel of land situated, bounded and particularly described in the plan
and technical description attached to the complaint and made a part
thereof.
The only opposition which was presented was on the part of the
Director of Lands. The oppositor [objector] alleged that the land in
question was the property of the Government of the United States
under the control and administration of the Government of the
Philippine Islands.
During the trial of the cause two witnesses only were presented by the
petitioner. No proof whatever was offered by the oppositor. After
hearing and considering the evidence, the Honorable Francisco
Soriano, judge, reached the following conclusions of fact:
1. That the land sought to be registered consists of one parcel of land
as marked and indicated on the plan and technical description
presented;
2. That all of said land, with the exception of a small part at the north,
the exact description and extension of which does not appear, has
been cultivated and planted for more than forty-four years prior to the
date of this decision;
3. That said land was formerly occupied, cultivated and planted by
Moros, Mansacas and others, under a claim of ownership, and that
they lived thereon and had their houses thereon, and that portion of
the land which was not planted or cultivated was used as pasture land
whereon they pastured their carabaos, cattle, and horses;
4. That all of said Moros and Mansacas sold, transferred and
conveyed all their right, title and interest in said land to the applicant,
J. H. Ankron, some eleven years past, at which time all of the said
former owners moved o n to adjoining lands where they now reside;
5. That the possession under claim of ownership of the applicant and
his predecessors in interest was shown to have been open, notorious,
actual, public and continuous for more than forty-four years past, and
that their claim was exclusive of any other right adverse to all other
claims;
6. That the applicant now has some one hundred fifty (150) hills of
hemp, some eight thousand (8,000) cocoanut trees, a dwelling house,
various laborers' quarters, store-building, large camarin (storehouse of
wood, a galvanized iron and other buildings and improvements on
said land.
Upon the foregoing facts the lower court ordered and decreed that
said parcel of land be registered in the name of the said applicant, J.
H. Ankron, subject, however, to the right of the Government of the
Philippine Islands to open a road thereon in the manner and
conditions mentioned in said decision. The conditions mentioned with
reference to the opening of the road, as found in said decision, are that
the applicant give his consent, which he has already done, to the
opening of said road which should be fifteen (15) meters wide and
should follow approximately the line of the road as it now exists
subject to the subsequent survey to be made by the engineer of the
province of Davao.
From that decree the Director of Lands appealed to this court.
The appellant argues, first, that the applicant did not sufficiently
identify the land in question. In reply to that argument, the record
shows that a detained and technical description of the land was made
a part of the record. The evidence shows that the boundaries of the
land in question were marked by monuments built of cement.
Theoppositor neither presented the question of the failure of proper
identification of the land in the lower court nor presented any proof
whatever to show that said cement monuments did not exist.
The appellant, in his second assignment of error, contends that the
appellant failed to prove his possession and occupation in accordance
that in each case the lands are agricultural lands until the contrary is
shown. Whatever the land involved in a particular land registration
case is forestry or mineral land must, therefore, be a matter of proof.
Its superior value for one purpose or the other is a question of fact to
be settled by the proof in each particular case. The fact that the land is
a manglar [mangrove swamp] is not sufficient for the courts to decide
whether it is agricultural, forestry, or mineral land. It may perchance
belong to one or the other of said classes of land. The Government, in
the first instance, under the provisions of Act No. 1148, may, by
reservation, decide for itself what portions of public land shall be
considered forestry land, unless private interests have intervened
before such reservation is made. In the latter case, whether the land is
agricultural, forestry, or mineral, is a question of proof. Until private
interests have intervened, the Government, by virtue of the terms of
said Act (No. 1148), may decide for itself what portions of the "public
domain" shall be set aside and reserved as forestry or mineral land.
(Ramos vs. Director of Lands (39 Phil. Rep., 175; Jocson vs. Director
of Forestry, supra.)
In view of the foregoing we are of the opinion, and so order and
decree, that the judgment of the lower court should be and is hereby
affirmed, with the condition that before the final certificate is issued,
an accurate survey be made of the lands to be occupied by the road
above mentioned and that a plan of the same be attached to the
original plan upon which the petition herein is based. It is so ordered,
with costs.
Arellano, C.J., Torres, Araullo, Street, Malcolm and Moir, JJ., concur.
EN BANC
G.R. No. 135385
December 6, 2000
Footnotes
1
Rollo, p. 114.
Id. at 23-25.
Id. at 27-28.
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.
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,
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
"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.
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
Any person who violates any of the provisions of the Act such as, but
not limited to, unauthorized and/or unlawful intrusion upon ancestral
lands and domains shall be punished in accordance with customary
laws or imprisoned from 9 months to 12 years and/or fined
from P100,000.00 to P500,000.00 and obliged to pay damages.40
A. Indigenous Peoples
The IPRA is a law dealing with a specific group of people, i.e., the
Indigenous Cultural Communities (ICCs) or the Indigenous Peoples
(IPs). The term "ICCs" is used in the 1987 Constitution while that of
"IPs" is the contemporary international language in the International
Labor Organization (ILO) Convention 16941 and the United Nations
(UN) Draft Declaration on the Rights of Indigenous Peoples.42
ICCs/IPs are defined by the IPRA as:
"Sec. 3 [h]. Indigenous Cultural Communities/ Indigenous Peoplesrefer to a group of people or homogeneous societies identified by selfascription and ascription by others, who have continuously lived as
organized community on communally bounded and defined territory,
and who have, under claims of ownership since time immemorial,
occupied, possessed and utilized such territories, sharing common
bonds of language, customs, traditions and other distinctive cultural
traits, or who have, through resistance to political, social and cultural
inroads of colonization, non-indigenous religions and cultures,
became historically differentiated from the majority of Filipinos.
ICCs/IPs shall likewise include peoples who are regarded as
indigenous on account of their descent from the populations which
inhabited the country, at the time of conquest or colonization, or at the
time of inroads of non-indigenous religions and cultures, or the
establishment of present state boundaries, who retain some or all of
their own social, economic, cultural and political institutions, but who
may have been displaced from their traditional domains or who may
have resettled outside their ancestral domains."
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
The policy of assimilation and integration did not yield the desired
result. Like the Spaniards and Americans, government attempts at
integration met with fierce resistance. Since World War II, a tidal
wave of Christian settlers from the lowlands of Luzon and the Visayas
swamped the highlands and wide open spaces in
Mindanao.86Knowledge by the settlers of the Public Land Acts and
the Torrens system resulted in the titling of several ancestral lands
in the settlers' names. With government initiative and
participation, this titling displaced several indigenous peoples
from their lands. Worse, these peoples were also displaced by
projects undertaken by the national government in the name of
national development.87
It was in the 1973 Constitution that the State adopted the following
provision:
The 1935 Constitution did not carry any policy on the nonChristian Filipinos. The raging issue then was the conservation of
the national patrimony for the Filipinos.
"The State shall consider the customs, traditions, beliefs, and interests
of national cultural communities in the formulation and
implementation of State policies."88
Ancestral lands are lands held by the ICCs/IPs under the same
conditions as ancestral domains except that these are limited to lands
and that these lands are not merely occupied and possessed but are
also utilized by the ICCs/IPs under claims of individual or traditional
group ownership. These lands include but are not limited to residential
lots, rice terraces or paddies, private forests, swidden farms and tree
lots.117
The procedures for claiming ancestral domains and lands are similar
to the procedures embodied in Department Administrative Order
(DAO) No. 2, series of 1993, signed by then Secretary of the
Department of Environment and Natural Resources (DENR) Angel
Alcala.118 DAO No. 2 allowed the delineation of ancestral domains by
the land jure gentium, and that the land never formed part of the
public domain.
In a unanimous decision written by Justice Oliver Wendell Holmes,
the U.S. Supreme Court held:
"It is true that Spain, in its earlier decrees, embodied the universal
feudal theory that all lands were held from the Crown, and perhaps
the general attitude of conquering nations toward people not
recognized as entitled to the treatment accorded to those in the same
zone of civilization with themselves. It is true, also, that in legal
theory, sovereignty is absolute, and that, as against foreign nations,
the United States may assert, as Spain asserted, absolute power. But it
does not follow that, as against the inhabitants of the Philippines, the
United States asserts that Spain had such power. When theory is left
on one side, sovereignty is a question of strength, and may vary in
degree. How far a new sovereign shall insist upon the theoretical
relation of the subjects to the head in the past, and how far it shall
recognize actual facts, are matters for it to decide."137
The U.S. Supreme Court noted that it need not accept Spanish
doctrines. The choice was with the new colonizer. Ultimately, the
matter had to be decided under U.S. law.
The Cario decision largely rested on the North American
constitutionalist's concept of "due process" as well as the pronounced
policy "to do justice to the natives."138 It was based on the strong
mandate extended to the Islands via the Philippine Bill of 1902 that
"No law shall be enacted in said islands which shall deprive any
person of life, liberty, or property without due process of law, or deny
to any person therein the equal protection of the laws." The court
declared:
"The acquisition of the Philippines was not like the settlement of the
white race in the United States. Whatever consideration may have
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."
settlements upon it. As regards the natives, the court further stated
that:
"Those relations which were to exist between the discoverer and the
natives were to be regulated by themselves. The rights thus acquired
being exclusive, no other power could interpose between them.
In the establishment of these relations, the rights of the
original inhabitants were, in no instance, entirely disregarded; but
were necessarily, to a considerable extent, impaired. They were
admitted to be the rightful occupants of the soil, with a legal as
well as just claim to retain possession of it, and to use itaccording
to their own discretion; but their rights to complete sovereignty, as
independent nations, were necessarily diminished, and their power to
dispose of the soil at their own will, to whomsoever they pleased, was
denied by the fundamental principle that discovery gave exclusive
title to those who made it.
While the different nations of Europe respected the right of the
natives as occupants, they asserted the ultimate dominion to be in
themselves; and claimed and exercised, as a consequence of this
ultimate dominion, a power to grant the soil, while yet in
possession of the natives. These grants have been understood by
all to convey a title to the grantees, subject only to the Indian
right of occupancy."161
Thus, the discoverer of new territory was deemed to have obtained
the exclusive right to acquire Indian land and extinguish Indian titles.
Only to the discoverer- whether to England, France, Spain or Hollanddid this right belong and not to any other nation or private person. The
mere acquisition of the right nonetheless did not extinguish Indian
claims to land. Rather, until the discoverer, by purchase or conquest,
exercised its right, the concerned Indians were recognized as the
"rightful occupants of the soil, with a legal as well as just claim to
retain possession of it." Grants made by the discoverer to her subjects
The American judiciary struggled for more than 200 years with
the ancestral land claims of indigenous Americans.182 And two
things are clear. First, aboriginal title is recognized. Second,
indigenous property systems are also recognized. From a legal point
of view, certain benefits can be drawn from a comparison of
Philippine IPs to native Americans.183 Despite the similarities between
native title and aboriginal title, however, there are at present some
misgivings on whether jurisprudence on American Indians may be
cited authoritatively in the Philippines. The U.S. recognizes the
possessory rights of the Indians over their land; title to the land,
however, is deemed to have passed to the U.S. as successor of the
discoverer. The aboriginal title of ownership is not specifically
recognized as ownership by action authorized by Congress.184 The
protection of aboriginal title merely guards against encroachment by
persons other than the Federal Government.185 Although there are
criticisms against the refusal to recognize the native Americans'
ownership of these lands,186 the power of the State to extinguish these
titles has remained firmly entrenched.187
As a rule, Indian lands are not included in the term "public lands,"
which is ordinarily used to designate such lands as are subject to sale
or other disposal under general laws.178 Indian land which has been
abandoned is deemed to fall into the public domain.179 On the other
hand, an Indian reservation is a part of the public domain set apart for
the use and occupation of a tribe of Indians.180 Once set apart by
proper authority, the reservation ceases to be public land, and until the
Indian title is extinguished, no one but Congress can initiate any
preferential right on, or restrict the nation's power to dispose of,
them.181
Under the IPRA, the Philippine State is not barred form asserting
sovereignty over the ancestral domains and ancestral lands.188 The
IPRA, however, is still in its infancy and any similarities between its
application in the Philippines vis--vis American Jurisprudence on
aboriginal title will depend on the peculiar facts of each case.
All these years, Cario had been quoted out of context simply to
justify long, continuous, open and adverse possession in the concept
of owner of public agricultural land. It is this long, continuous, open
and adverse possession in the concept of owner of thirty years both
for ordinary citizens194 and members of the national cultural
minorities195 that converts the land from public into private and entitles
the registrant to a torrens certificate of title.
(3) The Option of Securing a Torrens Title to the Ancestral Land
Indicates that the Land is Private.
The private character of ancestral lands and domains as laid down in
the IPRA is further strengthened by the option given to individual
Thus, ancestral lands and ancestral domains are not part of the
lands of the public domain. They are private and belong to the
ICCs/IPs. Section 3 of Article XII on National Economy and
Patrimony of the 1987 Constitution classifies lands of the public
domain into four categories: (a) agricultural, (b) forest or timber, (c)
mineral lands, and (d) national parks. Section 5 of the same
Article XII mentions ancestral lands and ancestral domains but it
does not classify them under any of the said four categories. To
classify them as public lands under any one of the four classes will
render the entire IPRA law a nullity. The spirit of the IPRA lies in
the distinct concept of ancestral domains and ancestral lands. The
IPRA addresses the major problem of the ICCs/IPs which is loss of
land. Land and space are of vital concern in terms of sheer survival of
the ICCs/IPs.201
The 1987 Constitution mandates the State to "protect the rights of
indigenous cultural communities to their ancestral lands" and
that "Congress provide for the applicability of customary laws x x
x in determining the ownership and extent of ancestral
domain."202 It is the recognition of the ICCs/IPs distinct rights of
ownership over their ancestral domains and lands that breathes
life into this constitutional mandate.
B. The right of ownership and possession by the ICCs/IPs of their
ancestral domains is a limited form of ownership and does not
include the right to alienate the same.
Registration under the Public Land Act and Land Registration Act
recognizes the concept of ownership under thecivil law. This
ownership is based on adverse possession for a specified period, and
harkens to Section 44 of the Public Land Act on administrative
legalization (free patent) of imperfect or incomplete titles and Section
48 (b) and (c) of the same Act on the judicial confirmation of
imperfect or incomplete titles. Thus:
"Sec. 44. Any natural-born citizen of the Philippines who is not the
owner of more than twenty-four hectares and who since July fourth,
1926 or prior thereto, has continuously occupied and cultivated, either
by himself or through his predecessors-in-interest, a tract or tracts of
agricultural public lands subject to disposition, or who shall have paid
the real estate tax thereon while the same has not been occupied by
any person shall be entitled, under the provisions of this chapter, to
have a free patent issued to him for such tract or tracts of such land
not to exceed twenty-four hectares.
A member of the national cultural minorities who has
continuously occupied and cultivated, either by himself or
through his predecessors-in-interest, a tract or tracts of land,
whether disposable or not since July 4, 1955, shall be entitled to
the right granted in the preceding paragraph of this
section:Provided, That at the time he files his free patent
application he is not the owner of any real property secured or
disposable under the provision of the Public Land Law.203
x x x.
"Sec. 48. The following described citizens of the Philippines,
occupying lands of the public domain or claiming to own any such
lands or an interest therein, but whose titles have not been perfected
or completed, may apply to the Court of First Instance of the province
where the land is located for confirmation of their claims and the
issuance of a certificate of title therefor, under the Land Registration
Act, to wit:
(a) [perfection of Spanish titles] xxx.
(b) Those who by themselves or through their predecessors-ininterest have been in open, continuous, exclusive, and
notorious possession and occupation of agricultural lands of
the public domain, under a bona fide claim of acquisition or
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
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 nonmember of the ICCs/IPs.
Following the constitutional mandate that "customary law govern
property rights or relations in determining the ownership and extent of
ancestral domains,"216 the IPRA, by legislative fiat, introduces a
new concept of ownership. This is a concept that has long existed
under customary law.217
Custom, from which customary law is derived, is also recognized
under the Civil Code as a source of law.218 Some articles of the Civil
Code expressly provide that custom should be applied in cases where
possess, the right to use, right to consume, right to exclude and right
to recover ownership, and the rights or interests over land and natural
resources. The right to recover shall be particularly applied to lands
lost through fraud or any form or vitiated consent or transferred for an
unconscionable price."
Section 1 of the Implementing Rules gives the ICCs/IPs rights of
ownership over "lands, waters and natural resources." The term
"natural resources" is not one of those expressly mentioned in Section
7 (a) of the law. Our Constitution and jurisprudence clearly declare
that the right to claim ownership over land does not necessarily
include the right to claim ownership over the natural resources found
on or under the land.231 The IPRA itself makes a distinction between
land and natural resources. Section 7 (a) speaks of the right of
ownership only over the land within the ancestral domain. It is
Sections 7 (b) and 57 of the law that speak of natural resources,
and these provisions, as shall be discussed later, do not give the
ICCs/IPs the right of ownership over these resources.
The constitutionality of Section 1, Part II, Rule III of the
Implementing Rules was not specifically and categorically challenged
by petitioners. Petitioners actually assail the constitutionality of the
Implementing Rules in general.232Nevertheless, to avoid any confusion
in the implementation of the law, it is necessary to declare that the
inclusion of "natural resources" in Section 1, Part II, Rule III of the
Implementing Rules goes beyond the parameters of Section 7 (b) of
the law and is contrary to Section 2, Article XII of the 1987
Constitution.
(b) The Small-Scale Utilization of Natural Resources In Sec. 7 (b)
of the IPRA Is Allowed Under Paragraph 3, Section 2 of Article
XII of the Constitution.
Ownership over natural resources remain with the State and the IPRA
in Section 7 (b) merely grants the ICCs/IPs the right to manage
them, viz:
"Sec. 7 (b) Right to Develop Lands and Natural Resources.- Subject
to Section 56 hereof, right to develop, control and use lands and
territories traditionally occupied, owned, or used; to manage and
conserve natural resourceswithin the territories and uphold the
responsibilities for future generations; to benefit and share the profits
from allocation and utilization of the natural resources found therein;
the right to negotiate the terms and conditions for the exploration of
natural resources in the areas for the purpose of ensuring ecological,
environmental protection and the conservation measures, pursuant to
national and customary laws; the right to an informed and intelligent
participation in the formulation and implementation of any project,
government or private, that will affect or impact upon the ancestral
domains and to receive just and fair compensation for any damages
which they may sustain as a result of the project; and the right to
effective measures by the government to prevent any interference
with, alienation and encroachment upon these rights;"
The right to develop lands and natural resources under Section 7
(b) of the IPRA enumerates the following rights:
a) the right to develop, control and use lands and
territories traditionally occupied;
b) the right to manage and conserve natural resources within
the territories and uphold the responsibilities for future
generations;
c) the right to benefit and share the profits from the allocation
and utilization of the natural resources found therein;
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.
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
Footnotes
Chief Judge, US Court of Appeals for the Seventh Circuit;
Senior Lecturer, University of Chicago Law School.
1
10
Id. at 540.
11
Id. at 548.
12
Id. at 543-544.
13
Id. at 543.
15
Id. at 545-546.
16
Id. at 543.
30
Id. at 600-601.
17
Id. at 557.
31
Ibid.
32
Section 7.
33
Section 8.
34
Sections 13 to 20.
35
Sections 21 to 28.
36
Sections 29 to 37.
37
38
Sections 74 to 77.
39
Section 69.
40
Section 73.
19
20
23
24
26
27
29
Id. at 600.
45
47
Id. at 5-6.
48
Id. at 13.
50
Corpuz, supra, at 5.
51
Id. at 44-45.
52
53
Id. at 40-41.
55
68
57
58
70
71
Id. at 80.
72
60
Id.
73
61
Id. at 43-44.
74
62
63
Id. at 48-49.
65
66
75
76
Id. at 67.
77
Id. at 52-53.
78
Id. at 53.
79
Id. at 55.
80
82
83
92
93
Id., at 93-94.
84
88
Article II, sec. 22; Article VI, sec. 5, par. 2; Article XII, sec.
5; Article XIII, sec. 6; Article XIV, sec. 17; and Article XVI,
sec. 12.
96
89
98
99
101
103
Ibid.
104
Ibid.
109
Id. at 12.
110
Id. at 17-18.
111
Id. at 13.
105
Ibid.
115
116
117
118
119
120
121
132
133
134
135
123
125
137
126
127
128
129
Ibid.
139
Id. at 940.
140
Id. at 941.
Id. at 941-942.
141
149
150
151
Id. at 712-713.
152
Id. at 694.
153
Id. at 700.
154
Id. at 944.
143
Id. at 939.
145
146
156
167
Id. at 500.
168
Id. at 501.
Ibid.
158
159
Id. at 680.
160
Id. at 689.
161
Ibid.; see also Tee Hit Ton Indians v. U.S., 348 U.S. 272, 99
L. Ed. 314, 320, 75 S. Ct. 313 [1955], reh den 348 U.S. 965, 99
L. Ed. 753, 75 S. Ct. 521.
172
Id. at 696; see also 41 ALR Fed 425, Annotation: Proof and
Extinguishment of Aboriginal Title to Indian Lands, Sec. 2[a]
[1979].
162
173
Buttz v. Northern Pac.R. Co., Dak., 7 S. Ct. 100, 119 U.S. 55,
30 L. Ed. 330, 335 [1886].
163
165
Id. at 499.
166
176
177
183
184
178
179
Ibid.
180
Id., Note 28, stating that some earlier decisions of the U.S.
Supreme Court have held that Congress is subject to the
strictures of the Constitution in dealing with Indians. When an
Indian property is taken for non-Indian use, the U.S.
government is liable for payment of compensation, and an
uncompensated taking may be enjoined. F. Cohen, Handbook
of Federal Indian Law 217 [1982], citing Shoshone Tribe v.
U.S. 299 U.S. 476 [1937]; Choate v. Trapp, 224 U.S. 665
187
Ibid.
181
199
188
Ibid.
190
192
Id. at 892.
193
194
202
205
206
Jus abutendi.
207
Jus disponendi.
196
Jus vindicandi. Please see Tolentino, Civil Code, vol. II, pp.
45-46 [1992]; see also Tolentino, vol. I, pp. 12-14.
208
209
198
Ibid.
211
213
214
216
229
230
227
"Sec. 3 [d] 'Small-scale mining contract' refers to coproduction, joint venture or mineral production sharing
agreement between the State and a small-scale mining
contractor for the small-scale utilization of a plot of
mineral land."
237
244
245
236
249
250
253
SEPARATE OPINION
VITUG, J.:
An issue of grave national interest indeed deserves a proper place
in any forum and, when it shows itself in a given judicial
controversy, the rules of procedure, like locus standi, the propriety
of the specific remedy invoked, or the principle of hierarchy of
courts, that may ordinarily be raised by party-litigants, should
The 1987 Constitution, like the precursor provisions in the 1935 and
1973 Constitutions, thus expresses thisregalian doctrine of the old,
and the domainial doctrine of the new, that all lands and natural
resources belong to the state other than those which it recognizes to be
of private ownership. Except for agricultural lands of the public
domain which alone may be alienated, forest or timber, and
mineral lands, as well as all other natural resources, of the
country must remain with the state, the exploration, development
and utilization of which shall be subject to its full control and
supervision albeit allowing it to enter into co-production, joint
venture or production-sharing agreements, or into agreements with
foreign-owned corporations involving technical or financial assistance
for large-scale exploration, development and utilization.12
The decision of the United States Supreme Court in Cario vs.
Insular Government,13 holding that a parcel of land held since time
immemorial by individuals under a claim of private ownership is
presumed never to have been public land and cited to downgrade the
application of the regalian doctrine, cannot override the collective
will of the people expressed in the Constitution. It is in them that
sovereignty resides and from them that all government authority
emanates.14 It is not then for a court ruling or any piece of legislation
to be conformed to by the fundamental law, but it is for the former to
adapt to the latter, and it is the sovereign act that must, between
them, stand inviolate.
10
Ibid., p. 595.
11
Ibid., p. 600.
13
41 Phil. 935.
14
15
16
Footnotes
People vs. Vera, 65 Phil. 56, 89; Macasiano vs. National
Housing Authority, 224 SCRA 236, 244.
1
SEPARATE OPINION
Sec. 2.
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.
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
This Court has recognized that a "public right," or that which belongs
to the people at large, may also be the subject of an actual case or
controversy. In Severino, we ruled that a private citizen may enforce a
"public right" in behalf of other citizens. We opined therein that:
The right which [petitioner] seeks to enforce is not greater or
different from that of any other qualified elector in the municipality of
Silay. It is also true that the injury which he would suffer in case he
fails to obtain the relief sought would not be greater or different from
that of the other electors; but he is seeking to enforce a public
right as distinguished from a private right. The real party in interest
is the public, or the qualified electors of the town of Silay. Each
elector has the same right and would suffer the same injury. Each
elector stands on the same basis with reference to maintaining a
petition whether or not the relief sought by the relator should be
granted.43
In Taada v. Tuvera,44 the Court enforced the "public right" to due
process and to be informed of matters of public concern.
are spent. The expenditure by an official of the State for the purpose
of administering an invalid law constitutes a misapplication of such
funds.51
The IPRA appropriates funds as indicated in its title: "An Act to
Recognize, Protect and Promote the Rights of Indigenous Cultural
Communities/Indigenous Peoples, Creating the National Commission
on Indigenous Peoples, Establishing Implementing
Mechanisms, Appropriating Funds Therefor, and for Other
Purposes." In the same manner, Section 79 authorizes for the
expenditure of public funds by providing that "the amount necessary
to finance [its] initial implementation shall be charged against the
current year's appropriation for the Office for Northern Cultural
Communities (the "ONCC") and the Office for Southern Cultural
Communities (the "OSCC"),"52which were merged as organic offices
of the NCIP.53 Thus, the IPRA is a valid subject of a taxpayers suit.
C. The petition for prohibition and mandamus is not an improper
remedy.
Prohibition is an extraordinary writ directed against any tribunal,
corporation, board, officer or person, whether exercising judicial,
quasi-judicial or ministerial functions, ordering said entity or person
to desist from further proceedings when said proceedings are without
or in excess of said entitys or persons jurisdiction, or are
accompanied with grave abuse of discretion, and there is no appeal or
any other plain, speedy and adequate remedy in the ordinary course of
law.54 Mandamus, on the other hand, is an extraordinary writ
commanding a tribunal, corporation, board, officer or person,
immediately or at some other specified time, to do the act required to
be done, when said entity or person unlawfully neglects the
performance of an act which the law specifically enjoins as a duty
resulting from an office, trust or station, or when said entity or person
unlawfully excludes another from the use and enjoyment of a right or
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.
part of the public domain or that it had been private property even
before the Spanish conquest."80
Petitioners however aver that the U.S. Supreme Courts ruling
in Cario was premised on the fact that the applicant had complied
with the requisites of acquisitive prescription, having established that
he and his predecessors-in-interest had been in possession of the
property since time immemorial. In effect, petitioners suggest that title
to the ancestral land applied for by Cario was transferred from the
State, as original owner, to Cario by virtue of prescription. They
conclude that the doctrine cannot be the basis for decreeing "by mere
legislative fiatthat ownership of vast tracts of land belongs to
[indigenous peoples] without judicial confirmation."81
The Solicitor General, for his part, claims that the Cario doctrine
applies only to alienable lands of the public domain and, as such,
cannot be extended to other lands of the public domain such as forest
or timber, mineral lands, and national parks.
There is no merit in these contentions.
A proper reading of Cario would show that the doctrine enunciated
therein applies only to lands which have always been considered as
private, and not to lands of the public domain, whether alienable or
otherwise. A distinction must be made between ownership of land
under native title and ownership by acquisitive prescription against
the State. Ownership by virtue of native title presupposes that the land
has been held by its possessor and his predecessors-in-interest in the
concept of an owner since time immemorial. The land is not acquired
from the State, that is, Spain or its successors-in-interest, the United
States and the Philippine Government. There has been no transfer of
title from the State as the land has been regarded as private in
character as far back as memory goes. In contrast, ownership of land
by acquisitive prescription against the State involves a conversion of
the character of the property from alienable public land to private
rights over lands of the public domain.92 Under the Treaty of Paris of
December 10, 1898, the cession of the Philippines did not impair any
right to property existing at the time.93 During the American colonial
regime, native title to land was respected, even protected. The
Philippine Bill of 1902 provided that property and rights acquired by
the US through cession from Spain were to be administered for the
benefit of the Filipinos.94 In obvious adherence to libertarian
principles, McKinleys Instructions, as well as the Philippine Bill of
1902, contained a bill of rights embodying the safeguards of the US
Constitution. One of these rights, which served as an inviolable rule
upon every division and branch of the American colonial government
in the Philippines,95 was that "no person shall be deprived of life,
liberty, or property without due process of law."96 These vested rights
safeguarded by the Philippine Bill of 1902 were in turn expressly
protected by the due process clause of the 1935 Constitution.
Resultantly, property rights of the indigenous peoples over their
ancestral lands and ancestral domains were firmly established in law.
Nonetheless, the Solicitor General takes the view that the vested
rights of indigenous peoples to their ancestral lands and domains were
"abated by the direct act by the sovereign Filipino people of ratifying
the 1935 Constitution."97 He advances the following arguments:
The Sovereign, which is the source of all rights including ownership,
has the power to restructure the consolidation of rights inherent in
ownership in the State. Through the mandate of the Constitutions that
have been adopted, the State has wrested control of those portions of
the natural resources it deems absolutely necessary for social welfare
and existence. It has been held that the State may impair vested rights
through a legitimate exercise of police power.
Vested rights do not prohibit the Sovereign from performing acts not
only essential to but determinative of social welfare and existence. To
allow otherwise is to invite havoc in the established social system. x x
x
MR. SUAREZ. So, there will be two aspects to this situation. This
means that the State will set aside the ancestral domain and there is a
separate law for that. Within the ancestral domain it could accept
more specific ownership in terms of individuals within the ancestral
lands.
MR. BENNAGEN. Individuals and groups within the ancestral
domain. 107 (Emphasis supplied.)
It cannot be correctly argued that, because the framers of the
Constitution never expressly mentioned Cario in their deliberations,
they did not intend to adopt the concept of native title to land, or that
they were unaware of native title as an exception to the theory of jura
regalia.108 The framers of the Constitution, as well as the people
adopting it, were presumed to be aware of the prevailing judicial
doctrines concerning the subject of constitutional provisions, and
courts should take these doctrines into consideration in construing the
Constitution.109
Having thus recognized that ancestral domains under the Constitution
are considered as private property of indigenous peoples, the IPRA,
by affirming or acknowledging such ownership through its various
provisions, merely abides by the constitutional mandate and does not
suffer any vice of unconstitutionality.
Petitioners interpret the phrase "subject to the provisions of this
Constitution and national development policies and programs" in
Section 5, Article XII of the Constitution to mean "as subject to the
provision of Section 2, Article XII of the Constitution," which vests in
the State ownership of all lands of the public domain, mineral lands
and other natural resources. Following this interpretation, petitioners
maintain that ancestral lands and ancestral domains are the property of
the State.
thesis that native title to natural resources has been upheld in this
jurisdiction.130 They insist that "it is possible for rights over natural
resources to vest on a private (as opposed to a public) holder if these
were held prior to the 1935 Constitution."131 However, a judicious
examination of Reavies reveals that, contrary to the position of NCIP
and Flavier, et al., the Court did not recognize native title to natural
resources. Rather, it merely upheld the right of the indigenous peoples
to claim ownership of minerals under the Philippine Bill of 1902.
While as previously discussed, native title to land or private
ownership by Filipinos of land by virtue of time immemorial
possession in the concept of an owner was acknowledged and
recognized as far back during the Spanish colonization of the
Philippines, there was no similar favorable treatment as regards
natural resources. The unique value of natural resources has been
acknowledged by the State and is the underlying reason for its
consistent assertion of ownership and control over said natural
resources from the Spanish regime up to the present.132 Natural
resources, especially minerals, were considered by Spain as an
abundant source of revenue to finance its battles in wars against other
nations. Hence, Spain, by asserting its ownership over minerals
wherever these may be found, whether in public or private lands,
recognized the separability of title over lands and that over minerals
which may be found therein. 133
On the other hand, the United States viewed natural resources as a
source of wealth for its nationals. As the owner of natural resources
over the Philippines after the latters cession from Spain, the United
States saw it fit to allow both Filipino and American citizens to
explore and exploit minerals in public lands, and to grant patents to
private mineral lands. A person who acquired ownership over a parcel
of private mineral land pursuant to the laws then prevailing could
exclude other persons, even the State, from exploiting minerals within
his property.134Although the United States made a distinction between
minerals found in public lands and those found in private lands, title
in these minerals was in all cases sourced from the State. The framers
of the 1935 Constitution found it necessary to maintain the States
ownership over natural resources to insure their conservation for
future generations of Filipinos, to prevent foreign control of the
country through economic domination; and to avoid situations
whereby the Philippines would become a source of international
conflicts, thereby posing danger to its internal security and
independence.135
The declaration of State ownership and control over minerals and
other natural resources in the 1935 Constitution was reiterated in both
the 1973136 and 1987 Constitutions.137
Having ruled that the natural resources which may be found within
the ancestral domains belong to the State, the Court deems it
necessary to clarify that the jurisdiction of the NCIP with respect to
ancestral domains under Section 52 [i] of IPRA extends only to
the lands and not to the natural resources therein.
Section 52[i] provides:
Turnover of Areas Within Ancestral Domains Managed by Other
Government Agencies. - The Chairperson of the NCIP shall certify
that the area covered is an ancestral domain. The secretaries of the
Department of Agrarian Reform, Department of Environment and
Natural Resources, Department of Interior and Local Government,
and Department of Justice, the Commissioner of the National
Development Corporation, and any other government agency
claiming jurisdiction over the area shall be notified thereof. Such
notification shall terminate any legal basis for the jurisdiction
previously claimed.
Undoubtedly, certain areas that are claimed as ancestral domains may
still be under the administration of other agencies of the Government,
such as the Department of Agrarian Reform, with respect to
The Solicitor General argues that these provisions deny the State an
active and dominant role in the utilization of our countrys natural
resources. Petitioners, on the other hand, allege that under the
Constitution the exploration, development and utilization of natural
resources may only be undertaken by the State, either directly or
indirectly through co-production, joint venture, or production-sharing
agreements.142 To petitioners, no other method is allowed by the
Constitution. They likewise submit that by vesting ownership of
ancestral lands and ancestral domains in the indigenous peoples,
IPRA necessarily gives them control over the use and enjoyment of
such natural resources, to the prejudice of the State.143
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
live in the area and that they are in the best position to undertake the
required utilization.
It must be emphasized that the grant of said priority rights to
indigenous peoples is not a blanket authority to disregard pertinent
laws and regulations. The utilization of said natural resources is
always subject to compliance by the indigenous peoples with existing
laws, such as R.A. 7076 and R.A. 7942 since it is not they but the
State, which owns these resources.
It also bears stressing that the grant of priority rights does not
preclude the State from undertaking activities, or entering into coproduction, joint venture or production-sharing agreements with
private entities, to utilize the natural resources which may be located
within the ancestral domains. There is no intention, as between the
State and the indigenous peoples, to create a hierarchy of values;
rather, the object is to balance the interests of the State for national
development and those of the indigenous peoples.
Neither does the grant of priority rights to the indigenous peoples
exclude non-indigenous peoples from undertaking the same activities
within the ancestral domains upon authority granted by the proper
governmental agency. To do so would unduly limit the ownership
rights of the State over the natural resources.
To be sure, the act of the State of giving preferential right to a
particular sector in the utilization of natural resources is nothing new.
As previously mentioned, Section 7, Article XIII of the Constitution
mandates the protection by the State of "the rights of subsistence
fishermen, especially of local communities, to the preferential use of
communal marine and fishing resources, both inland and offshore."
Section 57 further recognizes the possibility that the exploration and
exploitation of natural resources within the ancestral domains may
disrupt the natural environment as well as the traditional activities of
the indigenous peoples therein. Hence, the need for the prior informed
consent of the indigenous peoples before any search for or utilization
of the natural resources within their ancestral domains is undertaken.
In a situation where the State intends to directly or indirectly
undertake such activities, IPRA requires that the prior informed
consent of the indigenous peoples be obtained. The State must, as a
matter of policy and law, consult the indigenous peoples in
accordance with the intent of the framers of the Constitution that
national development policies and programs should involve a
systematic consultation to balance local needs as well as national
plans. As may be gathered from the discussion of the framers of the
Constitution on this point, the national plan presumably takes into
account the requirements of the region after thorough
consultation.156 To this end, IPRA grants to the indigenous peoples the
right to an informed and intelligent participation in the formulation
and implementation of any project, government or private, and the
right not to be removed therefrom without their free and prior
informed consent.157 As to non-members, the prior informed consent
takes the form of a formal and written agreement between the
indigenous peoples and non-members under the proviso in Section 57
in case the State enters into a co-production, joint venture, or
production-sharing agreement with Filipino citizens, or corporations.
This requirement is not peculiar to IPRA. Existing laws and
regulations such as the Philippine Environmental Policy,158 the
Environmental Impact System,159 the Local Government Code160 and
the Philippine Mining Act of 1995161already require increased
consultation and participation of stakeholders, such as indigenous
peoples, in the planning of activities with significant environment
impact.
The requirement in Section 59 that prior written informed consent of
the indigenous peoples must be procured before the NCIP can issue a
certification for the "issuance, renewal, or grant of any concession,
license or lease, or to the perfection of any production-sharing
B. Section 1, Part II, Rule VII of the Implementing Rules of IPRA does
not infringe upon the Presidents power of control over the Executive
Department.
The second corollary issue is whether the Implementing Rules of
IPRA violate Section 17, Article VII of the Constitution, which
provides that:
The President shall have control of all the executive departments,
bureaus, and offices. He shall ensure that the laws be faithfully
executed.
The assailed provision of the Implementing Rules provides:
Rule VII. The National Commission on Indigenous Peoples (NCIP)
xxx
Part II: NCIP as an Independent Agency Under the Office of the
President
Section 1. The NCIP is the primary agency of government for the
formulation and implementation of policies, plans and programs to
recognize, promote and protect the rights and well-being of
indigenous peoples. It shall be an independent agency under the
Office of the President. As such, the administrative relationship of
the NCIP to the Office of the President is characterized as a lateral
but autonomous relationship for purposes of policy and program
coordination. This relationship shall be carried out through a system
of periodic reporting. Matters of day-to-day administration or all those
pertaining to internal operations shall be left to the discretion of the
Chairperson of the Commission, as the Chief Executive Officer.
Petitioners asseverate that the aforecited rule infringes upon the power
of control of the President over the NCIP by characterizing the
Footnotes
Teehankee vs. Rovira, 75 Phil. 634 (1945); San Miguel
Corporation vs. Avelino, 89 SCRA 69 (1979); Phil. Long
Distance Telephone Co. vs. Collector of Internal Revenue, 90
Phil 674 (1952).
1
11
14
16
20
Ibid.
22
25
26
27
35
36
30
31
33
42
Id., at 371.
43
Id., at 374-375.
44
45
46
54
55
56
47
Id., at 805.
48
Ibid.
49
58
59
Id., at 424.
Ibid.
66
67
75
77
78
79
80
Id., at 892.
81
82
68
69
70
85
86
73
74
87
88
89
91
92
93
94
Section 12. That all the property and rights which may
have been acquired in the Philippine Islands under the
treaty of peace with Spain, signed December tenth,
eighteen hundred and ninety-eight, except such land or
other property as shall be designated by the President of
the United States for military and other reservations of
the Government of the United States, are hereby placed
under the control of the Government of said Islands, to
be administered for the benefit of the inhabitants
thereof, except as provided by this Act.
96
97
98
Id, at 668.
99
102
103
104
105
Ibid.
106
107
Id., at 37.
108
110
See pp. 8-9 of this Opinion for the full text of the
constitutional provisions mentioned.
112
113
115
116
117
Id., at 20.
123
Id., at 43.
124
125
Ibid.
128
129
claim in the Philippine Islands for the time required under the
Section 45 of the Philippine Bill of 1902 to establish the right
to a patent, need not have been under a claim of title.
131
132
as will make the total amount paid for the mineral claim
or claims in which said deposits are located equal to the
amount charged by the Government for the same as
mineral claims.
Other natural resources such as water and forests were
similarly regarded as belonging to the State during both
the Spanish and American rule in the Philippines, viz:
Article 33 of the Law of Waters of August 3, 1866
defined waters of public ownership as (1) the waters
springing continuously or intermittently from lands of
the public domain; (2) the waters of rivers; and (3) the
continuous or intermittent waters of springs and creeks
running through their natural channels.
Article 1 of the same law states:
The following are also part of the national domain open
to public use:
1. The coasts or maritime frontiers of the
Philippine territory with their coves, inlets,
creeks, roadsteads, bays and ports
2. The coast of the sea, that is, the maritime zone
encircling the coasts, to the full width recognized
by international law. The state provides for and
regulates the police supervision and the uses of
this zone as well as the right of refuge and
immunity therein, in accordance with law and
international treaties.
With respect to forests, there are references made
regarding State-ownership of forest lands in Supreme
134
Section 8, Article XIV, see note 139 for the full text of the
provision.
136
xxx
b) Right to Develop Lands and Natural Resources.Subject to Section 56 hereof, right to develop, control
and use lands and territories traditionally occupied,
owned, or used; to manage and conserve natural
resources within the territories and uphold the
responsibilities for future generations; to benefit and
share the profits from allocation and utilization of
the natural resources found therein; the right to
Section 57. Natural Resources within Ancestral Domains.The ICCs/IPs shall have priority rights in the harvesting,
extraction, development or exploitation of any natural
resources within the ancestral domains. A non-member of the
ICCs/IPs concerned may be allowed to take part in the
development and utilization of the natural resources for a
period of not exceeding twenty-five (25) years renewable for
not more than twenty-five (25) years: Provided, That a formal
and written agreement is entered into with the ICCs/IPs
concerned or that the community, pursuant to its own decision
making process, has agreed to allow such operation: Provided,
finally, That the NCIP may exercise visitorial powers and take
appropriate action to safeguard the rights of the ICCs/IPs under
the same contract.
139
142
143
146
147
148
Bower v. Big Horn Canal Assn. (Wyo) 307 P2d 593, cited in
16 Am Jur 2d Constitutional Law, 100.
149
152
153
154
156
157
158
160
161
162
163
164
165
166
167
Sections 40, 51, 52, 53, 54, 62 and 66, R.A. No. 8371.
168
177
178
179
xxx
180
175
182
176
183
Sec. 65. Primacy of Customary Laws and Practices. When disputes involve ICCs/IPs, customary laws and
practices shall be used to resolve the dispute.
Secs. 44 (a), (b), (c),(d), (f), (g), (h), (I), (j), (k), (l), (m), (n),
(p), (q), R.A. 8371.
184
185
186
MENDOZA, J.:
187
Sec. 17. The President shall have control of all the executive
departments, bureaus, and offices. He shall ensure that the laws
be faithfully executed.
188
189
190
191
192
193
194
195
196
R.A. 7076.
197
R.A. 7942.
198
SEPARATE OPINION
The judicial power vested in this Court by Art. VIII, 1 extends only
to cases and controversies for the determination of such proceedings
as are established by law for the protection or enforcement of rights,
or the prevention, redress or punishment of wrongs.1 In this case, the
purpose of the suit is not to enforce a property right of petitioners
against the government and other respondents or to demand
compensation for injuries suffered by them as a result of the
enforcement of the law, but only to settle what they believe to be the
doubtful character of the law in question. Any judgment that we
render in this case will thus not conclude or bind real parties in the
future, when actual litigation will bring to the Court the question of
the constitutionality of such legislation. Such judgment cannot be
executed as it amounts to no more than an expression of opinion upon
the validity of the provisions of the law in question.2
I do not conceive it to be the function of this Court under Art. VIII, 1
of the Constitution to determine in the abstract whether or not there
has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of the legislative and executive departments in
enacting the IPRA. Our jurisdiction is confined to cases or
controversies. No one reading Art. VIII, 5 can fail to note that, in
enumerating the matters placed in the keeping of this Court, it
uniformly begins with the phrase "all cases. . . ."
The statement that the judicial power includes the duty to determine
whether there has been a grave abuse of discretion was inserted in Art.
VIII, 1 not really to give the judiciary a roving commission to right
any wrong it perceives but to preclude courts from invoking the
political question doctrine in order to evade the decision of certain
cases even where violations of civil liberties are alleged.
The statement is based on the ruling of the Court in Lansang v.
Garcia,3 in which this Court, adopting the submission of the Solicitor
General, formulated the following test of its jurisdiction in such cases:
[J]udicial inquiry into the basis of the questioned proclamation can
go no further than to satisfy the Court not that the Presidents decision
is correct and that public safety was endangered by the rebellion and
justified the suspension of the writ, but that in suspending the writ, the
President did not act arbitrarily.
That is why Art. VII, 18 now confers on any citizen standing to
question the proclamation of martial law or the suspension of the
privilege of the writ of habeas corpus. It is noteworthy that Chief
Justice Roberto Concepcion, who chaired the Committee on the
Judiciary of the Constitutional Commission, was the author of the
opinions of the Court in Lopez v. Roxas and Lansang v. Garcia.
Indeed, the judicial power cannot be extended to matters which do not
involve actual cases or controversies without upsetting the balance of
power among the three branches of the government and erecting, as it
were, the judiciary, particularly the Supreme Court, as a third branch
of Congress, with power not only to invalidate statutes but even to
rewrite them. Yet that is exactly what we would be permitting in this
case were we to assume jurisdiction and decide wholesale the
constitutional validity of the IPRA contrary to the established rule that
a party can question the validity of a statute only if, as applied to him,
it is unconstitutional. Here the IPRA is sought to be declared void on
its face.
Footnotes
1
10
11
12
13
SEPARATE OPINION
(Concurring and Dissenting)
PANGANIBAN, J.:
I concur with the draft ponencia of Mr. Justice Santiago M. Kapunan
in its well-crafted handling of the procedural or preliminary issues. In
particular, I agree that petitioners have shown an actual case or
controversy involving at least two constitutional questions of
transcendental importance,1 which deserve judicious disposition on
the merits directly by the highest court of the land.2 Further, I am
satisfied that the various aspects of this controversy have been fully
presented and impressively argued by the parties. Moreover,
prohibition and mandamus are proper legal remedies3 to address the
problems raised by petitioners. In any event, this Court has given due
course to the Petition, heard oral arguments and required the
"The State shall protect the nation's marine wealth in its archipelagic
waters, territorial sea, and exclusive economic zone, and reserve its
use and enjoyment exclusively to Filipino citizens.
Thus, after expressly declaring that all lands of the public domain,
waters, minerals, all forces of energy and other natural resources
belonged to the Philippine State, the Commonwealth absolutely
prohibited the alienation of these natural resources. Their disposition,
exploitation, development and utilization were further restricted only
to Filipino citizens and entities that were 60 percent Filipino-owned.
The present Constitution even goes further by declaring that such
activities "shall be under the full control and supervision of the State."
Additionally, it enumerates land classifications and expressly states
that only agricultural lands of the public domain shall be alienable.
We quote below the relevant provision:13
citizens who have chosen to live and abide by our previous and
present Constitutions, would be not only unjust but also subversive of
the rule of law.
In giving ICCs/IPs rights in derogation of our fundamental law,
Congress is effectively mandating "reverse discrimination." In
seeking to improve their lot, it would be doing so at the expense of the
majority of the Filipino people. Such short-sighted and misplaced
generosity will spread the roots of discontent and, in the long term,
fan the fires of turmoil to a conflagration of national proportions.
Peace cannot be attained by brazenly and permanently depriving the
many in order to coddle the few, however disadvantaged they may
have been. Neither can a just society be approximated by maiming the
healthy to place them at par with the injured. Nor can the nation
survive by enclaving its wealth for the exclusive benefit of favored
minorities.
Rather, the law must help the powerless by enabling them to take
advantage of opportunities and privileges that are open to all and by
preventing the powerful from exploiting and oppressing them. This is
the essence of social justice empowering and enabling the poor to
be able to compete with the rich and, thus, equally enjoy the blessings
of prosperity, freedom and dignity.
WHEREFORE, I vote to partially GRANT the Petition and
to DECLARE as UNCONSTITUTIONAL Sections 3(a) and (b), 5, 6,
7(a) and (b), 8 and related provisions of RA 8371.
Footnotes
12
13
14
15
16
17
16 CJS 3.
18
16 Am Jur 2d 2.
19
Ibid.
21
172 SCRA 455, 463, April 18, 1989, per Gutierrez Jr., J.
23
30
Ibid.
31
33
Ibid.
34
35
Ibid. See also Datu Vic Saway, "Indigenous Peoples and the
Uplands: A Situationer," Proceedings of the 6th Upland NGO
Consultative Conference, 23-27 August 1998, p. 30.
36
38
7(b), RA 7381.
39
57, ibid.
40
7(b), ibid.
WILLARD, J.:
On the 16th day of January, 1904 F. Stewart Jones presented a
petition to the Court of Land Registration asking that he be
inscribed as the owner of a certain tract of land situatd in the
Province of Benguet, and within the reservation defined in Act No.
636. The Solicitor-General appeared in the court below and
opposed the inscription upon the ground that the property was
public land. At the trial he objected to any consideration of the case
on the ground that the court had no jurisdiction to register land
situated in that reservation. The objections were overruled and
judgment entered in favor of the petitioner, from which judgment
the Government appealed to this court.
The act creating the Court of Land Registration (No. 496) gave it
jurisdiction throughout the Archipelago. By Act No. 1224, which
was approved August 31, 1904, and which applied to pending
cases, the court was deprived of jurisdiction over lands situated in
the Province of Benguet. That act, however, contained a proviso by
which the court was given jurisdiction over applications for
registration of title to land in all cases coming within the provisions
of Act No. 648. Act No. 648 provides in its first section that
The Civil Governor is hereby authorized and empowered by
executive order to reserve from settlement or public sale and
for specific public uses any of the public domain in the
Philippine Islands the use of which is not otherwise directed
by law.
Section 2 provides: "Whenever the Civil Governor, in writing, shall
certify that all public lands within limits by him described in the
Philippine Islands are reserved for civil public uses, either of the
Insular Government, or of any provincial or municipal government,
and shall give notice thereof to the judge of the Court of Land
Very respectfully,
(Signed)WM. H. TAFT,
"Civil Governor."
The court of Land Registration, acting upon this notice from the
Governor, issued the notice required by Act No. 627, and in
pursuance of that notice Jones, the appellee, within the six months
referred to in the notice, presented his petition asking that the land
be registered in his name.
The first claim of the Government is that the provisions of Act No.
648 were not complied with in the respect that this letter of the
Governor did not amount to a certificate that the lands had been
reserved. The Solicitor-General says in his brief:
To bring these lands within the operation of section 2 of Act
No. 648 it was necessary for the Civil Governor first to
certify that these lands were reserved for public uses, and
second to give notice thereof to the Court of Land
Registration.
We do not think that this contention can be sustained. Act No. 648
conferred power upon the Governor to reserve lands for public
purposes, but it did not make that power exclusive. The
Commission did not thereby deprive itself of the power to itself
make reservations in the future, if it saw fit; neither did it intend to
annul any reservations which it had formerly made. The contention
This case comes from the Court of Land Registration. The petitioner
sought to have registered a tract of land of about 16 hectares in extent,
situated in the barrio of San Antonio, in the district of Mandurriao, in
the municipality of Iloilo. Judgment was rendered in favor of the
petitioner and the Government has appealed. A motion for a new trial
was made and denied in the court below, but no exception was taken
to the order denying it, and we therefore can not review the evidence.
The decision of that court was based upon Act No. 926 section 54,
paragraph 6 which follows:
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."
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
In fact, it appears from the decision that those lands, which were in
the Province of Benguet, were within the strictest definition of the
phrase "agricultural lands." It appears that such lands had been
cultivated for more than twelve years. What that case decided was, not
that the lands therein involved and other lands referred to in the
decision by way of illustration were not agricultural lands but that the
law there in question and the other laws mentioned therein were not
rules and regulations within the meaning of section 13.
The judgment of the court below is affirmed, with the costs of this
instance against the appellant. So ordered.
Arellano, C.J., and Torres, J., concur.
Johnson, J., concurs in the result.
Separate Opinions
TRACEY, J., concurring:
By its title as well as throughout its text Act No. 926 is restricted to
the "Public domain of the Philippine Islands" and to "public lands" in
said Islands. This act, drawn in furtherance of an act of Congress,
must be interpreted according to the American understanding of the
words employed and the meaning of these terms as definitely fixed by
decisions of the United States Supreme Court.
"Public domain" and "public lands" are equivalent terms. (Barker vs.
Harvey, 181, U.S., 481, 490.
The words "public lands" are habitually used in our legislation
to describe such as are subject to sale or other disposal under
general laws. (Newhall vs. Sanger, 92 U.S., 761)
JOHNSON, J.:
Footnotes