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Application of the principle of the right of conquest to the case of

HISTORY & GENERAL CONSIDERATIONS the Indian savages. Nature of the Indian title, as subordinate to the
absolute ultimate title of the government.
#1
Effect of the proclamation of 1763.
U.S. Supreme Court
Titles in New England under Indian grants.
Johnson & Graham's Lessee v. McIntosh, 21 U.S. 8 Wheat. 543
543 (1823) This was an action of ejectment for lands in the State and District
of Illinois, claimed by the plaintiffs under a purchase and
Johnson & Graham's Lessee v. McIntosh conveyance from the Piankeshaw Indians and by the defendant
under a grant from the United States. It came up on a case stated
21 U.S. (8 Wheat.) 543 upon which there was a judgment below for the defendant. The
case stated set out the following facts:
ERROR TO THE DISTRICT
1st. That on 23 May, 1609, James I, King of England, by his letters
COURT OF ILLINOIS patent of that date, under the great seal of England, did erect, form,
and establish Robert, Earl of Salisbury, and others, his associates,
Syllabus in the letters patent named and their successors into a body
corporate and politic by the name and style of "The Treasurer and
A title to lands under grants to private individuals made by Indian Company of Adventurers and Planters of the City of London for
tribes or nations northwest of the River Ohio in 1773 and 1775 the first Colony in Virginia," with perpetual succession and power
cannot be recognized in the courts of the United States. to make, have, and use a common seal, and did give, grant, and
confirm unto this company, and their successors,
Discovery the original foundation of titles to land on the American
continent as between the different European nations by whom Page 21 U. S. 544
conquests and settlements were made here.
under certain reservations and limitations in the letters patent
Recognition of the same principle in the wars, negotiations, and expressed,
treaties between the different European powers.
"All the lands, countries, and territories situate, lying, and being in
Adoption of the same principle by the United States. that part of North America called Virginia, from the point of land
called Cape or Point Comfort all along the seacoast to the
The exclusive right of the British government to the lands
northward two hundred miles, and from the said Cape or Point
occupied by the Indians has passed to that of the United States.
Comfort all along the seacoast to the southward two hundred
miles, and all that space and circuit of land lying from the seacoast
Foundation and limitation of the right of conquest.
of the precinct aforesaid up into the land throughout from the sea, territory and in all the other parts of North America where
west and northwest, and also all the islands lying within one settlements were made under the authority of the English
hundred miles along the coast of both seas of the precinct government or by its subjects, the right of soil was previously
aforesaid, with all the soil, grounds, rights, privileges, and obtained by purchase or conquest from the particular Indian tribe
appurtenances to these territories belonging and in the letters or nation by which the soil was claimed and held, or the consent
patent particularly enumerated," of such tribe or nation was secured.

and did grant to this corporation and their successors various 4th. That in the year 1624, this corporation was dissolved by due
powers of government in the letters patent particularly course of law and all its powers, together with its rights of soil and
expressed. jurisdiction under the letters patent in question were revested in
the Crown of England, whereupon the colony became a royal
2d. That the place called in these letters patent Cape or Point government with the same territorial limits and extent which had
Comfort is the place now called and known by the name of Old been established by the letters patent, and so continued until it
Point Comfort, on the Chesapeake Bay and Hampton Roads, and became a free and independent state, except so far as its limits and
that immediately after the granting of the letters patent, the extent were altered and curtailed by the Treaty of February 10,
corporation proceeded under and by virtue of them to take 1763, between Great Britain and France and by the letters patent
possession of parts of the territory which they describe and to granted by the King of England
form settlements, plant a colony, and exercise the powers of
government therein, which colony was called and known by the Page 21 U. S. 546
name of the Colony of Virginia.
for establishing the Colonies of Carolina, Maryland, and
3d. That at the time of granting these letters patent and of the Pennsylvania.
discovery of the continent of
5th. That sometime previous to the year 1756, the French
Page 21 U. S. 545 government, laying a claim to the country west of the Alleghany
or Appalachian Mountains on the Ohio and Mississippi Rivers and
North America by the Europeans, and during the whole their branches, took possession of certain parts of it with the
intermediate time, the whole of the territory in the letters patent consent of the several tribes or nations of Indians possessing and
described, except a small district on James River, where a owning them, and with the like consent established several
settlement of Europeans had previously been made, was held, military posts and settlements therein, particularly at Kaskaskias,
occupied, and possessed in full sovereignty by various on the River Kaskaskias, and at Vincennes, on the River Wabash,
independent tribes or nations of Indians, who were the sovereigns within the limits of the Colony of Virginia, as described and
of their respective portions of the territory and the absolute established in and by the letters patent of May 23, 1609, and that
owners and proprietors of the soil and who neither acknowledged the government of Great Britain, after complaining of these
nor owed any allegiance or obedience to any European sovereign establishments as encroachments and remonstrating against
or state whatever, and that in making settlements within this them, at length, in the year 1756, took up arms to resist and repel
them, which produced a war between those two nations wherein but not her subjects, never having been in any manner conquered
the Indian tribes inhabiting and holding the countries northwest by her, and held the country in absolute sovereignty as
of the Ohio and on the Mississippi above the mouth of the Ohio independent nations, both as to the right of jurisdiction and
were the allies of France, and the Indians known by the name of sovereignty and the right of soil, except a few military posts and a
the Six Nations or the Iroquois and their tributaries and allies small territory around each,
were the allies of Great Britain, and that on 10 February, 1763, this
war was terminated by a definitive treaty of peace between Great Page 21 U. S. 548
Britain and France and their allies by which it was stipulated and
agreed that the River Mississippi, from its source to the Iberville, which they had ceded to France, and she held under them, and
should forever after form the boundary between the dominions of among which were the aforesaid posts of Kaskaskias and
Vincennes, and that these Indians, after the treaty, became the
Page 21 U. S. 547 allies of Great Britain, living under her protection as they had
before lived under that of France, but were free and independent,
Great Britain and those of France in that part of North America owing no allegiance to any foreign power whatever and holding
and between their respective allies there. their lands in absolute property, the territories of the respective
tribes being separated from each other and distinguished by
6th. That the government of Virginia, at and before the certain natural marks and boundaries to the Indians well known,
commencement of this war and at all times after it became a royal and each tribe claiming and exercising separate and absolute
government, claimed and exercised jurisdiction, with the ownership in and over its own territory, both as to the right of
knowledge and assent of the government of Great Britain, in and sovereignty and jurisdiction and the right of soil.
over the country northwest of the River Ohio and east of the
Mississippi as being included within the bounds and limits 8th. That among the tribes of Indians thus holding and inhabiting
described and established for that colony, by the letters patent of the territory north and northwest of the Ohio, east of the
May 23, 1609, and that in the year 1749, a grant of six hundred Mississippi, and west of the Great Miami, within the limits of
thousand acres of land within the country northwest of the Ohio Virginia, as described in the letters patent of May 23, 1609, were
and as part of Virginia was made by the government of Great certain independent tribes or nations called the Illinois or
Britain to some of its subjects by the name and style of the Ohio Kaskaskias and the Piankeshaw or Wabash Indians, the first of
Company. which consisted of three several tribes united into one and called
the Kaskasias, the Pewarias, and the Cahoquias; that the Illinois
7th. That at and before the commencement of the war in 1756 and owned, held, and inhabited, as their absolute and separate
during its whole continuance and at the time of the Treaty of property, a large tract of country within the last mentioned limits
February 10, 1763, the Indian tribes or nations inhabiting the and situated on the Mississippi, Illinois, and Kaskaskias Rivers and
country north and northwest of the Ohio and east of the on the Ohio below the mouth of the Wabash, and the Piankeshaws
Mississippi as far east as the river falling into the Ohio called the another large tract of country within the same
Great Miami were called and known by the name of the Western
Confederacy of Indians, and were the allies of France in the war, Page 21 U. S. 549
limits, and as their absolute and separate property, on the Wabash certain chiefs of the tribe selling to represent the whole tribe in
and Ohio Rivers, and that these Indians remained in the sole and every part of the transaction, to make the contract, and execute
absolute ownership and possession of the country in question the deed, on behalf of the whole tribe, to receive for it the
until the sales made by them in the manner herein after set forth. consideration, whether in money or commodities, or both, and
finally to divide such consideration among the individuals of the
9th. That on the termination of the war between Great Britain and tribe, and that the authority of the chiefs so acting for the whole
France, the Illinois Indians, by the name of the Kaskaskias tribes tribe is attested by the presence and assent of the individuals
of Indians, as fully representing all the Illinois tribes then composing the tribe, or some of them, and by the receipt by the
remaining, made a treaty of peace with Great Britain and a treaty individuals composing the tribe of their respective shares of the
of peace, limits, and amity, under her mediation, with the Six price, and in no other manner.
Nations, or Iroquois, and their allies, then known and
distinguished by the name of the Northern Confederacy of Indians, 12th. That on 5 July, 1773, certain chiefs of the Illinois Indians,
the Illinois being a part of the confederacy then known and then jointly representing, acting for, and being duly authorized by
distinguished by the name of the Southern Confederacy, and that tribe in the manner explained above, did by their deed poll,
sometimes by that of the Western Confederacy. duly executed and delivered and bearing date on that day, at the
post of Kaskaskias, then being a British military post, and at a
10th. That on 7 October, 1763, the King of Great Britain made and public council there held by them for and on behalf of the said
published a proclamation for the better regulation of the Illinois nation of Indians with William Murray, of the Illinois
countries ceded to Great Britain by that treaty, which country, merchant, acting for himself and for Moses Franks and
proclamation is referred to and made part of the case. Jacob Franks, of London, in Great Britain, David Franks, John
Inglis, Bernard Gratz, Michael
11th. That from time immemorial and always up to the present
time, all the Indian tribes or nations of North America, and Page 21 U. S. 551
especially the Illinois and Piankeshaws and other tribes holding,
possessing, and inhabiting the said countries north and northeast Gratz, Alexander Ross, David Sproat, and James Milligan, all of
of the Ohio east of the Mississippi and west of the Great Miami Philadelphia, in the p\Province of Pennsylvania; Moses Franks,
held their respective lands and territories each in common, the Andrew Hamilton, William Hamilton, and Edmund Milne of the
individuals same place; Joseph Simons otherwise called Joseph Simon and
Levi Andrew Levi of the Town of Lancaster in Pennsylvania;
Page 21 U. S. 550 Thomas Minshall of York County in the same province; Robert
Callender and William Thompson, of Cumberland County in the
of each tribe or nation holding the lands and territories of such same province; John Campbell of Pittsburgh in the same province;
tribe in common with each other, and there being among them no and George Castles and James Ramsay of the Illinois country, and
separate property in the soil, and that their sole method of selling, for a good and valuable consideration in the said deed stated
granting, and conveying their lands, whether to governments or grant, bargain, sell, alien, lease, enfeoff, and confirm to the said
individuals, always has been from time immemorial and now is for William Murray, Moses Franks, Jacob Franks, David Franks, John
Inglis, Bernard Gratz, Michael Gratz, Alexander Ross, David Mississippi at a point directly opposite to the mouth of the
Sproat, James Milligan, Andrew Hamilton, William Hamilton, Missouri and running up the Mississippi by its several courses to
Edmund Milne Joseph Simons, otherwise called Joseph Simon Levi the mouth of the Illinois, about six leagues more or less; and
Andrew Levi, Thomas Minshall, Robert Callender, William thence up the Illinois, by its several courses, to Chicagou or Garlic
Thompson, John Campbell, George Castles, and James Ramsay, Creek, about ninety leagues, more or less; thence nearly a
their heirs and assigns forever, in severalty, or to George the northerly course, in a direct line, to a certain remarkable place,
Third, then King of Great Britain and Ireland, his heirs and being the ground on which a
successors, for the use, benefit, and behoof of the grantees, their
heirs and assigns, in severalty, by whichever of those tenures they Page 21 U. S. 553
might most legally hold, all those two several tracts or parcels of
land situated, lying, and being within the limits of Virginia on the battle was fought about forty or fifty years before that time
east of the Mississippi, northwest of the Ohio, and west of the between the Pewaria and Renard Indians, about fifty leagues
Great Miami, and thus butted 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
Page 21 U. S. 552 plain, about fourteen leagues more or less; thence a north of east
course, in a direct line, to a remarkable spring known by the
and bounded: Indians by the name of "Foggy Spring," about fourteen leagues
more or less; thence the same course in a direct line to a great
Beginning for one of the said tracts on the east side of the mountain, to the northwest of the White Buffalo Plain, about
Mississippi at the mouth of the Heron Creek, called by the French fifteen leagues more or less; and thence nearly a southwest course
the River of Mary, being about a league below the mouth of the to the place of beginning, about forty leagues more or less:
Kaskaskias River, and running thence a northward of east course
in a direct line back to the Hilly Plains, about eight leagues more To have and to hold the said two tracts of land, with all and
or less; thence the same course in a direct line to the Crab Tree singular their appurtenances, to the grantees, their heirs and
Plains, about seventeen leagues more or less; thence the same assigns, forever in severalty or to the King, his heirs and
course in a direct line to a remarkable place known by the name successors, to and for the use, benefit, or behoof of the grantees,
of the Big Buffalo Hoofs, about seventeen leagues more or less; their heirs and assigns, forever in severalty, as will more fully
thence the same course, in a direct line to the Salt Lick Creek, appear by the said deed poll, duly executed under the hands and
about seven leagues more or less; then crossing the Salt Lick seals of the grantors and duly recorded at Kaskaskias on 2
Creek, about one league below the ancient Shawanese town in an September, 1773, in the office of Vicerault Lemerance, a notary
easterly or a little to the north of east course in a direct line to the public, duly appointed and authorized. This deed, with the several
River Ohio, about four leagues more or less; then down the Ohio certificates annexed to or endorsed on it, was set out at length in
by its several courses until it empties into the Mississippi, about the case.
thirty-five leagues more or less; and then up the Mississippi, by its
several courses, to the place of beginning, about thirty-three 13th. That the consideration in this deed expressed, was of the
leagues more or less; and beginning for the other tract on 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 15th. That on 18 October, 1775, Tabac and certain other Indians,
deed, by William Murray, one all being chiefs of the Piankeshaws and jointly representing, acting
for, and duly authorized by that nation in the manner stated
Page 21 U. S. 554 above, did, by their deed poll, duly executed and bearing date on
the day last mentioned at the post of Vincennes, otherwise called
of the grantees, in behalf of himself and the other grantees, to the post St. Vincent, then being a British military post, and at a public
Illinois Indians, who freely accepted it and divided it among council there held by them for and on behalf of the Piankeshaw
themselves; that the conferences in which the sale of these lands Indians, with Louis Viviat, of the Illinois country, acting for himself
was agreed on and made and in which it was agreed that the deed and for the Right Honorable John, Earl of Dunmore, then Governor
should be executed were publicly held for the space of a month at of Virginia, the Honorable John Murray, son of the said Earl, Moses
the post of Kaskaskias, and were attended by many individuals of Franks and Jacob Franks, of London, in Great Britain, Thomas
all the tribes of Illinois Indians, besides the chiefs, named as Johnson, Jr., and John Davidson, both of Annapolis, in Maryland,
grantors in the deed; that the whole transaction was open, public, William Russel, Matthew Ridley, Robert Christie, Sr., and Robert
and fair, and the deed fully explained to the grantors and other Christie, Jr., of Baltimore Town, in the same province, Peter
Indians by the sworn interpreters of the government and fully Compbell, of Piscataway in the same province, William Geddes, of
understood by the grantors and other Indians before it was Newtown Chester in the same province, collector of his Majesty's
executed; that the several witnesses to the deed and the grantees customs, David Franks and Moses Franks, both of Philadelphia in
named in it were such persons and of such quality and stations, Pennsylvania, William Murray and Daniel Murray, of the Illinois
respectively, as they are described to be in the deed, the country, Nicholas St. Martin and Joseph Page, of the same place,
attestation, and the other endorsements on it; that the grantees Francis Perthuis, late of Quebec, in Canada, but then of post St.
did duly authorize William Murray to act for and represent them Vincent, and for good and valuable consideration, in the deed poll
in the purchase of the lands and the acceptance of the deed, and mentioned and enumerated, grant, bargain, sell, alien, enfeoff,
that the two tracts or parcels of land which it describes and release, ratify, and
purports to grant were then part of the lands held, possessed, and
inhabited by the Illinois Indians from time immemorial in the Page 21 U. S. 556
manner already stated.
confirm to the said Louis Viviat and the other persons last
14th. That all the persons named as grantees in this deed were, at mentioned, their heirs and assigns, equally to be divided, or to
the time of its execution and long before, subjects of the Crown of George III, then King of Great Britain and Ireland, his heirs and
Great Britain and residents of the several places named in the successors, for the use, benefit, and behoof of all the above
deed as their places of residence, and that mentioned grantees, their heirs and assigns, in severalty, by
whichever of those tenures they might most legally hold, all those
Page 21 U. S. 555 two several tracts of land in the deed particularly described
situate, lying,
they entered into the land under and by virtue of the deed and
became seized as the law requires. brk:
and being northwest of the Ohio, east of the Mississippi, and west 16th. That the consideration in this deed expressed was of the
of the Great Miami, within the limits of Virginia and on both sides value of $31,000 current money of the United States and upwards,
of the Ouabache, otherwise called the Wabash, which two tracts of and was paid and delivered at the time of the execution of the deed
land are contained respectively within the following metes and by the grantee, Lewis Viviat, in behalf of himself and the other
bounds, courses and distances, that is to say, beginning for one of grantees, to the Piankeshaw Indians, who freely accepted it and
the said tracts at the mouth of a rivulet called Riviere du Chat, or divided it among themselves; that the conferences in which the
Cat River, where it empties itself into the Ouabache or Wabash, by sale of these two tracts of land was agreed on and made, and in
its several courses, to a place called Point Coupee, about twelve which it was agreed that the deed should be executed were
leagues above post St. Vincent, being forty leagues, or thereabouts, publicly held for the space of a month at the post of Vincennes or
in length, on the said river Ouabache, from the place of beginning, post St. Vincent, and were attended by many individuals of the
with forty leagues in width or breadth on the east side, and thirty Piankeshaw nation of Indians besides the chiefs named as
leagues in breadth or width on the west side of that river, to be grantors in the deed; that the whole
continued along from the place of beginning to Point Coupee. And
beginning for the other tract at the mouth of White River where it Page 21 U. S. 558
empties into the Ouabache, about twelve leagues below post St.
Vincent, and running thence down the Ouabache by its several transaction was open, public, and fair, and the deed fully explained
courses until it empties into the Ohio, being from White River to to the grantors and other Indians by skillful interpreters, and fully
the Ohio, about fifty-three leagues in length, more or less, with understood by them before it was executed; that it was executed
forty in the presence of the several witnesses by whom it purports to
have been attested, and was attested by them; that the grantees
Page 21 U. S. 557 were all subjects of the Crown of Great Britain, and were of such
quality, station, and residence, respectively, as they are described
leagues in width or breadth on the east side and thirty in width or in the deed to be; that the grantees did duly authorize Lewis Viviat
breadth on the west side of the Ouabache, to be continued along to act for and represent them in the purchase of these two tracts
from the White River to the Ohio, with all the rights, liberties, of land and in the acceptance of the deed; that these tracts of land
privileges, hereditaments, and appurtenances to the said tract were then part of the lands held, possessed, and inhabited by the
belonging, to have and to hold to the grantees, their heirs and Piankeshaw Indians from time immemorial, as is stated above;
assigns, forever in severalty or to the King, his heirs and and that the several grantees under this deed entered into the
successors, for the use, benefit, and behoof of the grantees, their land which it purports to grant and became seized as the law
heirs and assigns, as will more fully appear by the deed itself, duly requires.
executed under the hands and seals of the grantors, and duly
recorded at Kaskaskias, on 5 December, 1775, in the office of Louis 17th. That on 6 May, 1776, the Colony of Virginia threw off its
Bomer, a notary public, duly appointed and authorized. This deed, dependence on the Crown and government of Great Britain and
with the several certificates annexed to or endorsed on it, was set declared itself an independent state and government with the
out at length. 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 of Virginia to the Congress of the United States, did, by their deed
Treaty of February 10, 1763, between Great Britain and France, poll, under their hands and seals, in pursuance and execution of
which limits, so curtailed and restricted, the State of Virginia, by the authority to them given by this act of assembly, convey,
its Constitution and form of government, declared should be and transfer, assign, and make over to the United States, in Congress
remain the limits of the state and should bound its western and assembled, for the benefit of the said states, all right, title, and
northwestern extent. claim, as well of soil as jurisdiction which that state had to the
territory northwest of the Ohio, with the reservations, limitations,
Page 21 U. S. 559 and conditions in the act of assembly prescribed, which cession
the United States accepted.
18th. That on 5 October, 1778, the General Assembly of Virginia,
having taken by arms the posts of Kaskaskias and Vincennes, or 20th. That on 20 July, 1818, the United States, by their officers
St. Vincent, from the British forces, by whom they were then held, duly authorized for that purpose did sell, grant, and convey to the
and driven those forces from the country northwest of the Ohio, defendant in this action, William McIntosh, all those several tracts
east of the Mississippi, and west of the Great Miami, did, by an act or parcels of land, containing 11,560 acres, and butted, bounded,
of assembly of that date, entitled "An act for establishing the and described, as will fully appear in and by the patent for the said
County of Illinois and for the more effectual protection and lands, duly executed, which was set out at length.
defense thereof," erect that country, with certain other portions of
territory within the limits of the state and northwest of the Ohio 21st. That the lands described and granted in and by this patent
into a county, by the name of the County of Illinois. are situated within the State of Illinois and are contained within
the lines of the last or second of the two tracts described and
19th. That on 29 December, 1783, the State of Virginia, by an act purporting to be granted and conveyed to Louis Viviat and others
of assembly of that date, authorized their delegates in the by the deed of October 18, 1775, and that William McIntosh, the
Congress of the United States, or such of them, to the number of defendant, entered upon these lands under and by virtue of his
three at least, as should be assembled in Congress on behalf of the patent and became possessed thereof before the institution of this
state and by proper deeds or instruments in writing under their suit.
hands and seals, to convey, transfer, assign, and make over to the
United States, in Congress assembled, for the benefit of the said 22d. That Thomas Johnson, one of the grantees
states, all right, title, and claim, as well of soil as jurisdiction, which
Virginia had to the territory or tract of country within her limits, Page 21 U. S. 561
as defined and prescribed by the letters patent of May 23, 1609,
and lying to the northwest of the Ohio; subject to certain in and under the deed of October 18, 1775, departed this life on or
limitations and conditions in the act prescribed and specified, and about 1 October, 1819, seized of all his undivided part or share of
that on 1 March, 1784, Thomas Jefferson, Samuel Hardy, Arthur and in the two several tracts of land described and purporting to
Lee, and James Monroe, then being four of the delegates be granted and conveyed to him and others by that deed, having
first duly made and published his last will and testament in
Page 21 U. S. 560 writing, attested by three credible witnesses, which he left in full
force and by which he devised all his undivided share and part of Judgment being given for the defendant on the case stated, the
those two tracts of land to his son, Joshua Johnson and his heirs, plaintiffs brought this writ of error.
and his grandson, Thomas J. Graham, and his heirs, the lessors of
the plaintiff in this action, as tenants in common. Page 21 U. S. 571

23d. That Joshua Johnson and Thomas J. Graham, the devisees, MR. CHIEF JUSTICE MARSHALL delivered the opinion of the Court.
entered into the two tracts of land last above mentioned under
and by virtue of the will, and became thereof seized as the law The plaintiffs in this cause claim the land in their declaration
requires. That Thomas Johnson, the grantee and devisor, during mentioned under two grants purporting to be made, the first in
his whole life and at the time of his death, was an inhabitant and 1773 and the last in 1775, by the chiefs of certain
citizen of the State of Maryland; that Joshua Johnson and Thomas
J. Graham, the lessors of the plaintiff, now are and always have Page 21 U. S. 572
been citizens of the same state; that the defendant, William
McIntosh, now is and at and before the time of bringing this action Indian tribes constituting the Illinois and the Piankeshaw nations,
was a citizen of the State of Illinois, and that the matter in dispute and the question is whether this title can be recognized in the
in this action is of the value of $2,000 current money of the United courts of the United States?
States and upwards.
The facts, as stated in the case agreed, show the authority of the
24th. And that neither William Murray nor any other of the chiefs who executed this conveyance so far as it could be given by
grantees under the deed of July 5, 1773, nor Louis Viviat nor any their own people, and likewise show that the particular tribes for
other of the whom these chiefs acted were in rightful possession of the land
they sold. The inquiry, therefore, is in a great measure confined to
Page 21 U. S. 562 the power of Indians to give, and of private individuals to receive,
a title which can be sustained in the courts of this country.
grantees under the deed of October 8, 1775, nor any person for
them or any of them ever obtained or had the actual possession As the right of society to prescribe those rules by which property
under and by virtue of those deeds or either of them of any part of may be acquired and preserved is not and cannot be drawn into
the lands in them or either of them described and purporting to question, as the title to lands especially is and must be admitted
be granted, but were prevented by the war of the American to depend entirely on the law of the nation in which they lie, it will
Revolution, which soon after commenced, and by the disputes and be necessary in pursuing this inquiry to examine not singly those
troubles which preceded it, from obtaining such possession, and principles of abstract justice which the Creator of all things has
that since the termination of the war and before it, they have impressed on the mind of his creature man and which are
repeatedly and at various times from the year 1781 till the year admitted to regulate in a great degree the rights of civilized
1816 petitioned the Congress of the United States to acknowledge nations, whose perfect independence is acknowledged, but those
and confirm their title to those lands under the purchases and principles also which our own government has adopted in the
deeds in question, but without success. particular case and given us as the rule for our decision.
On the discovery of this immense continent, the great nations of In the establishment of these relations, the rights of the original
Europe were eager to appropriate to themselves so much of it as inhabitants were in no instance entirely disregarded, but were
they could respectively acquire. Its vast extent offered an necessarily to a considerable extent impaired. They were
admitted to be the rightful occupants of the soil, with a legal as
Page 21 U. S. 573 well as just claim to retain possession of it, and to use it according
to their own discretion; but their rights to complete sovereignty
ample field to the ambition and enterprise of all, and the character as independent nations were necessarily diminished, and their
and religion of its inhabitants afforded an apology for considering power to dispose of the soil at their own will to whomsoever they
them as a people over whom the superior genius of Europe might pleased was denied by the original fundamental principle that
claim an ascendency. The potentates of the old world found no discovery gave exclusive title to those who made it.
difficulty in convincing themselves that they made ample
compensation to the inhabitants of the new by bestowing on them While the different nations of Europe respected the right of the
civilization and Christianity in exchange for unlimited natives as occupants, they asserted the ultimate dominion to be in
independence. But as they were all in pursuit of nearly the same themselves, and claimed and exercised, as a consequence of this
object, it was necessary, in order to avoid conflicting settlements ultimate dominion, a power to grant the soil while yet in
and consequent war with each other, to establish a principle possession of the natives. These grants have been understood by
which all should acknowledge as the law by which the right of all to convey a title to the grantees, subject only to the Indian right
acquisition, which they all asserted should be regulated as of occupancy.
between themselves. This principle was that discovery gave title
to the government by whose subjects or by whose authority it was The history of America from its discovery to the present day
made against all other European governments, which title might proves, we think, the universal recognition of these principles.
be consummated by possession.
Spain did not rest her title solely on the grant of the Pope. Her
The exclusion of all other Europeans necessarily gave to the discussions respecting boundary, with France, with Great Britain,
nation making the discovery the sole right of acquiring the soil and with the United States all show that she placed in on the rights
from the natives and establishing settlements upon it. It was a given by discovery. Portugal sustained her claim to the Brazils by
right with which no Europeans could interfere. It was a right the same title.
which all asserted for themselves, and to the assertion of which by
others all assented. France also founded her title to the vast territories she claimed in
America on discovery. However
Those relations which were to exist between the discoverer and
the natives were to be regulated by themselves. The rights thus Page 21 U. S. 575
acquired being exclusive, no other power could interpose
between them. conciliatory her conduct to the natives may have been, she still
asserted her right of dominion over a great extent of country not
Page 21 U. S. 574 actually settled by Frenchmen and her exclusive right to acquire
and dispose of the soil which remained in the occupation of No one of the powers of Europe gave its full assent to this principle
Indians. Her monarch claimed all Canada and Acadie as colonies more unequivocally than England. The documents upon this
of France at a time when the French population was very subject are ample and complete. So early as the year 1496, her
inconsiderable and the Indians occupied almost the whole monarch granted a commission to the Cabots to discover
country. He also claimed Louisiana, comprehending the immense countries then unknown to Christian people and to take
territories watered by the Mississippi and the rivers which empty possession of them in the name of the King of England. Two years
into it, by the title of discovery. The letters patent granted to the afterwards, Cabot proceeded on this voyage and discovered the
Sieur Demonts in 1603, constitute him Lieutenant General, and continent of North America, along which he sailed as far south as
the representative of the King in Acadie, which is described as Virginia. To this discovery the English trace their title.
stretching from the 40th to the 46th degree of north latitude, with
authority to extend the power of the French over that country and In this first effort made by the English government to acquire
its inhabitants, to give laws to the people, to treat with the natives territory on this continent we perceive a complete recognition of
and enforce the observance of treaties, and to parcel out and give the principle which has been mentioned. The right of discovery
title to lands according to his own judgment. given by this commission is confined to countries "then unknown
to all Christian people," and of these countries Cabot was
The states of Holland also made acquisitions in America and empowered to take possession in the name of the King of England.
sustained their right on the common principle adopted by all Thus asserting a right to take possession
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 Page 21 U. S. 577
of their East India Company, discovered the country from the
Delaware to the Hudson, up which he sailed to the 43d degree of notwithstanding the occupancy of the natives, who were
north latitude, and this country they claimed under the title heathens, and at the same time admitting the prior title of any
acquired by this voyage. Christian people who may have made a previous discovery.

Page 21 U. S. 576 The same principle continued to be recognized. The charter


granted to Sir Humphrey Gilbert in 1578 authorizes him to
Their first object was commercial, as appears by a grant made to discover and take possession of such remote, heathen, and
a company of merchants in 1614, but in 1621 the States General barbarous lands as were not actually possessed by any Christian
made, as we are told by Mr. Smith, a grant of the country to the prince or people. This charter was afterwards renewed to Sir
West India Company by the name of New Netherlands. Walter Raleigh in nearly the same terms.

The claim of the Dutch was always contested by the English -- not By the charter of 1606, under which the first permanent English
because they questioned the title given by discovery, but because settlement on this continent was made, James I granted to Sir
they insisted on being themselves the rightful claimants under Thomas Gates and others those territories in America lying on the
that title. Their pretensions were finally decided by the sword. 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 1635 surrendered their charter to the Crown. A patent was
were divided into two companies at their own request. The first granted to Gorges for Maine, which was allotted to him in the
or southern colony was directed to settle between the 34th and division of property.
41st degrees of north latitude, and the second or northern colony
between the 38th and 45th degrees. All the grants made by the Plymouth Company, so far as we can
learn, have been respected. In pursuance of the same principle,
In 1609, after some expensive and not very successful attempts at the King, in 1664, granted to the Duke of York the country of New
settlement had been made, a new and more enlarged charter was England as far south as the Delaware
given by the Crown to the first colony, in which the King granted
to the "Treasurer and Company of Adventurers of the City of Page 21 U. S. 579
London for the first colony in Virginia," in absolute property, the
lands extending along the seacoast four hundred miles, and Bay. His Royal Highness transferred New Jersey to Lord Berkeley
and Sir George Carteret.
Page 21 U. S. 578
In 1663, the Crown granted to Lord Clarendon and others the
into the land throughout from sea to sea. This charter, which is a country lying between the 36th degree of north latitude and the
part of the special verdict in this cause, was annulled, so far as River St. Mathes, and in 1666 the proprietors obtained from the
respected the rights of the company, by the judgment of the Court Crown a new charter granting to them that province in the King's
of King's Bench on a writ of quo warranto, but the whole effect dominions in North America which lies from 36 degrees 30
allowed to this judgment was to revest in the Crown the powers minutes north latitude to the 29th degree, and from the Atlantic
of government and the title to the lands within its limits. ocean to the South sea.

At the solicitation of those who held under the grant to the second Thus has our whole country been granted by the Crown while in
or northern colony, a new and more enlarged charter was granted the occupation of the Indians. These grants purport to convey the
to the Duke of Lenox and others in 1620, who were denominated soil as well as the right of dominion to the grantees. In those
the Plymouth Company, conveying to them in absolute property governments which were denominated royal, where the right to
all the lands between the 40th and 48th degrees of north latitude. the soil was not vested in individuals, but remained in the Crown
or was vested in the colonial government, the King claimed and
Under this patent New England has been in a great measure exercised the right of granting lands and of dismembering the
settled. The company conveyed to Henry Rosewell and others, in government at his will. The grants made out of the two original
1627, that territory which is now Massachusetts, and in 1628 a colonies, after the resumption of their charters by the Crown, are
charter of incorporation comprehending the powers of examples of this. The governments of New England, New York,
government was granted to the purchasers. New Jersey, Pennsylvania, Maryland, and a part of Carolina were
thus created. In all of them, the soil, at the time the grants were
Great part of New England was granted by this company, which at made, was occupied by the Indians. Yet almost every title within
length divided their remaining lands among themselves, and in those governments is dependent on these grants. In some
instances, the soil was conveyed by the Crown unaccompanied by title was respected till the revolution, when it was forfeited by the
the powers of government, as in the case of the northern neck of laws of war.
Virginia. It has never
Further proofs of the extent to which this principle has been
Page 21 U. S. 580 recognized will be found in the history of the wars, negotiations,
and treaties which the different nations claiming territory in
been objected to this or to any other similar grant that the title as America have carried on and held with each other.
well as possession was in the Indians when it was made and that
it passed nothing on that account. The contests between the cabinets of Versailles and Madrid
respecting the territory on the northern coast of the Gulf of Mexico
These various patents cannot be considered as nullities, nor can were fierce and bloody, and continued until the establishment of
they be limited to a mere grant of the powers of government. A a Bourbon on the throne of Spain produced such amicable
charter intended to convey political power only would never dispositions in the two Crowns as to suspend or terminate them.
contain words expressly granting the land, the soil, and the
waters. Some of them purport to convey the soil alone, and in Between France and Great Britain, whose discoveries as well as
those cases in which the powers of government as well as the soil settlements were nearly contemporaneous, contests for the
are conveyed to individuals, the Crown has always acknowledged country actually covered by the Indians began as soon as their
itself to be bound by the grant. Though the power to dismember settlements approached each other, and were continued until
regal governments was asserted and exercised, the power to finally settled in the year 1763 by the Treaty of Paris.
dismember proprietary governments was not claimed, and in
some instances, even after the powers of government were Each nation had granted and partially settled the country,
revested in the Crown, the title of the proprietors to the soil was denominated by the French Acadie, and by the English Nova
respected. 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
Charles II was extremely anxious to acquire the property of Maine, Nova Scotia or Acadie, with its ancient boundaries." A great part
but the grantees sold it to Massachusetts, and he did not venture of the ceded territory was in the possession of the Indians, and the
to contest the right of that colony to the soil. The Carolinas were extent of the cession could not be adjusted by the commissioners
originally proprietary governments. In 1721, a revolution was to whom it was to be referred.
effected by the people, who shook off their obedience to the
proprietors and declared their dependence immediately on the The Treaty of Aix la Chapelle, which was made
Crown. The King, however, purchased the title of those who were
disposed to sell. One of them, Lord Carteret, surrendered his Page 21 U. S. 582
interest in the government but retained his title to the soil. That
on the principle of the status ante bellum, did not remove this
Page 21 U. S. 581 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 These conflicting claims produced a long and bloody war which
how entirely each relied on the title given by discovery to lands was terminated by the conquest of the whole country east of the
remaining in the possession of Indians. Mississippi. In the treaty of 1763, France ceded and guaranteed to
Great Britain all Nova Scotia, or Acadie, and Canada, with their
After the termination of this fruitless discussion, the subject was dependencies, and it was agreed that the boundaries between the
transferred to Europe and taken up by the cabinets of Versailles territories of the two nations in America should be irrevocably
and London. This controversy embraced not only the boundaries fixed by a line drawn from the source of the Mississippi, through
of New England, Nova Scotia, and that part of Canada which the middle of that river and the lakes Maurepas and Ponchartrain,
adjoined those colonies, but embraced our whole western country to the sea. This treaty expressly cedes, and has always been
also. France contended not only that the St. Lawrence was to be understood to cede, the whole country on the English side of the
considered as the center of Canada, but that the Ohio was within dividing line between the two nations, although a great and
that colony. She founded this claim on discovery and on having valuable part of it was occupied by the Indians. Great Britain, on
used that river for the transportation of troops in a war with some her part, surrendered to France all her pretensions to the country
southern Indians. west of the Mississippi. It has never been supposed that she
surrendered nothing, although she was not in actual possession of
This river was comprehended in the chartered limits of Virginia, a foot of land. She surrendered all right to acquired the country,
but though the right of England to a reasonable extent of country and any after attempt to purchase it from the Indians would have
in virtue of her discovery of the seacoast and of the settlements been considered
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 Page 21 U. S. 584
washed by the Atlantic, might, without derogating from the
principle recognized by all, be deemed extravagant. It interfered, and treated as an invasion of the territories of France.
too, with the claims of France founded on the same principle. She
therefore sought to strengthen her original title to By the 20th article of the same treaty, Spain ceded Florida, with its
dependencies and all the country she claimed east or southeast of
Page 21 U. S. 583 the Mississippi, to Great Britain. Great part of this territory also
was in possession of the Indians.
the lands in controversy by insisting that it had been
acknowledged by France in the 15th article of the Treaty of By a secret treaty which was executed about the same time,
Utrecht. The dispute respecting the construction of that article has France ceded Louisiana to Spain, and Spain has since retroceded
no tendency to impair the principle, that discovery gave a title to the same country to France. At the time both of its cession and
lands still remaining in the possession of the Indians. Whichever retrocession, it was occupied chiefly by the Indians.
title prevailed, it was still a title to lands occupied by the Indians,
whose right of occupancy neither controverted and neither had Thus all the nations of Europe who have acquired territory on this
then extinguished. 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 Without ascribing to this act the power of annulling vested rights
or adopted this principle? or admitting it to countervail the testimony furnished by the
marginal note opposite to the title of the law forbidding purchases
By the treaty which concluded the war of our revolution, Great from the Indians in the revisals of the Virginia statutes stating that
Britain relinquished all claim not only to the government, but to law to be repealed, it may safely be considered as an unequivocal
the "propriety and territorial rights of the United States" whose affirmance on the part of Virginia of the broad principle which had
boundaries were fixed in the second article. By this treaty the always been maintained that the exclusive right to purchase from
powers of government and the right to soil which had previously the Indians resided in the government.
been in Great Britain passed definitively to these states. We had
before taken possession of them by declaring independence, but In pursuance of the same idea, Virginia proceeded at the same
neither the declaration of independence nor the treaty confirming session to open her
it could give us more than that which we before possessed or to
which Great Britain was before entitled. It Page 21 U. S. 586

Page 21 U. S. 585 land office for the sale of that country which now constitutes
Kentucky, a country every acre of which was then claimed and
has never been doubted that either the United States or the possessed by Indians, who maintained their title with as much
several states had a clear title to all the lands within the boundary persevering courage as was ever manifested by any people.
lines described in the treaty, subject only to the Indian right of
occupancy, and that the exclusive power to extinguish that right The states, having within their chartered limits different portions
was vested in that government which might constitutionally of territory covered by Indians, ceded that territory generally to
exercise it. the United States on conditions expressed in their deeds of
cession, which demonstrate the opinion that they ceded the soil as
Virginia, particularly, within whose chartered limits the land in well as jurisdiction, and that in doing so they granted a productive
controversy lay, passed an act in the year 1779 declaring her fund to the government of the Union. The lands in controversy lay
within the chartered limits of Virginia, and were ceded with the
"exclusive right of preemption from the Indians of all the lands whole country northwest of the River Ohio. This grant contained
within the limits of her own chartered territory, and that no reservations and stipulations which could only be made by the
person or persons whatsoever have or ever had a right to owners of the soil, and concluded with a stipulation that
purchase any lands within the same from any Indian nation except
only persons duly authorized to make such purchase, formerly for "all the lands in the ceded territory not reserved should be
the use and benefit of the colony and lately for the considered as a common fund for the use and benefit of such of
Commonwealth." the United States as have become or shall become members of the
confederation, . . . according to their usual respective proportions
The act then proceeds to annul all deeds made by Indians to in the general charge and expenditure, and shall be faithfully
individuals for the private use of the purchasers.
and bona fide disposed of for that purpose, and for no other use or The power now possessed by the government of the United States
purpose whatsoever." to grant lands, resided, while we were colonies, in the Crown, or
its grantees. The validity of the titles given by either has never
The ceded territory was occupied by numerous and warlike tribes
of Indians, but the exclusive right of the United States to Page 21 U. S. 588
extinguish their title and to grant the soil has never, we believe,
been doubted. been questioned in our courts. It has been exercised uniformly
over territory in possession of the Indians. The existence of this
Page 21 U. S. 587 power must negative the existence of any right which may conflict
with and control it. An absolute title to lands cannot exist at the
After these states became independent, a controversy subsisted same time in different persons or in different governments. An
between them and Spain respecting boundary. By the treaty of absolute must be an exclusive title, or at least a title which
1795, this controversy was adjusted and Spain ceded to the United excludes all others not compatible with it. All our institutions
States the territory in question. This territory, though claimed by recognize the absolute title of the Crown, subject only to the
both nations, was chiefly in the actual occupation of Indians. Indian right of occupancy, and recognize the absolute title of the
Crown to extinguish that right. This is incompatible with an
The magnificent purchase of Louisiana was the purchase from absolute and complete title in the Indians.
France of a country almost entirely occupied by numerous tribes
of Indians who are in fact independent. Yet any attempt of others We will not enter into the controversy whether agriculturists,
to intrude into that country would be considered as an aggression merchants, and manufacturers have a right on abstract principles
which would justify war. to expel hunters from the territory they possess or to contract
their limits. Conquest gives a title which the courts of the
Our late acquisitions from Spain are of the same character, and the conqueror cannot deny, whatever the private and speculative
negotiations which preceded those acquisitions recognize and opinions of individuals may be, respecting the original justice of
elucidate the principle which has been received as the foundation the claim which has been successfully asserted. The British
of all European title in America. government, which was then our government and whose rights
have passed to the United States, asserted title to all the lands
The United States, then, has unequivocally acceded to that great occupied by Indians within the chartered limits of the British
and broad rule by which its civilized inhabitants now hold this colonies. It asserted also a limited sovereignty over them and the
country. They hold and assert in themselves the title by which it exclusive right of extinguishing the title which occupancy gave to
was acquired. They maintain, as all others have maintained, that them. These claims have been maintained and established as far
discovery gave an exclusive right to extinguish the Indian title of west as the River Mississippi by the sword. The title
occupancy either by purchase or by conquest, and gave also a right
to such a degree of sovereignty as the circumstances of the people Page 21 U. S. 589
would allow them to exercise.
to a vast portion of the lands we now hold originates in them. It is But the tribes of Indians inhabiting this country were fierce
not for the courts of this country to question the validity of this savages whose occupation was war and whose subsistence was
title or to sustain one which is incompatible with it. drawn chiefly from the forest. To leave them in possession of their
country was to leave the country a wilderness; to govern them as
Although we do not mean to engage in the defense of those a distinct people was impossible because they were as brave and
principles which Europeans have applied to Indian title, they may, as high spirited as they were fierce, and were ready to repel by
we think, find some excuse, if not justification, in the character and arms every attempt on their independence.
habits of the people whose rights have been wrested from them.
What was the inevitable consequence of this state of things? The
The title by conquest is acquired and maintained by force. The Europeans were under the necessity either of abandoning the
conqueror prescribes its limits. Humanity, however, acting on country and relinquishing their pompous claims to it or of
public opinion, has established, as a general rule, that the enforcing those claims by the sword, and by the adoption of
conquered shall not be wantonly oppressed, and that their principles adapted to the condition of a people with whom it was
condition shall remain as eligible as is compatible with the objects impossible to mix and who could not be governed as a distinct
of the conquest. Most usually, they are incorporated with the society, or of remaining in their neighborhood, and exposing
victorious nation, and become subjects or citizens of the themselves and their families to the perpetual hazard of being
government with which they are connected. The new and old massacred.
members of the society mingle with each other; the distinction
between them is gradually lost, and they make one people. Where Frequent and bloody wars, in which the whites were not always
this incorporation is practicable, humanity demands and a wise the aggressors, unavoidably ensued. European policy, numbers,
policy requires that the rights of the conquered to property should and skill prevailed. As the white population advanced, that of the
remain unimpaired; that the new subjects should be governed as Indians necessarily receded. The country in the immediate
equitably as the old, and that confidence in their security should neighborhood of agriculturists became unfit for them. The game
gradually banish the painful sense of being separated from their fled
ancient connections, and united by force to strangers.
Page 21 U. S. 591
When the conquest is complete and the conquered inhabitants can
be blended with the conquerors into thicker and more unbroken forests, and the Indians followed.
The soil to which the Crown originally claimed title, being no
Page 21 U. S. 590 longer occupied by its ancient inhabitants, was parceled out
according to the will of the sovereign power and taken possession
or safely governed as a distinct people, public opinion, which not of by persons who claimed immediately from the Crown or
even the conqueror can disregard, imposes these restraints upon mediately through its grantees or deputies.
him, and he cannot neglect them without injury to his fame and
hazard to his power. 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 although entitled to the respect of all courts until it should be
some new and different rule better adapted to the actual state of legitimately extinguished, was declared not to be such as to be
things was unavoidable. Every rule which can be suggested will be absolutely repugnant to a seizin in fee on the part of the state.
found to be attended with great difficulty.
This opinion conforms precisely to the principle which has been
However extravagant the pretension of converting the discovery supposed to be recognized by all European governments from the
of an inhabited country into conquest may appear; if the principle first settlement of America. The absolute ultimate title has been
has been asserted in the first instance, and afterwards sustained; considered as acquired by discovery, subject only to the Indian
if a country has been acquired and held under it; if the property of title of occupancy, which title the discoverers possessed the
the great mass of the community originates in it, it becomes the exclusive right of acquiring. Such a right is no more incompatible
law of the land and cannot be questioned. So, too, with respect to with a seizin in fee than a lease for years, and might as effectually
the concomitant principle that the Indian inhabitants are to be bar an ejectment.
considered merely as occupants, to be protected, indeed, while in
peace, in the possession of their lands, but to be deemed incapable Another view has been taken of this question
of transferring the absolute title to others. However this
restriction may be opposed to natural right, and to the usages of Page 21 U. S. 593
civilized nations, yet if it be indispensable to that system under
which the country has been settled, and be which deserves to be considered. The title of the Crown, whatever
it might be, could be acquired only by a conveyance from the
Page 21 U. S. 592 Crown. If an individual might extinguish the Indian title for his
own benefit, or in other words might purchase it, still he could
adapted to the actual condition of the two people, it may perhaps acquire only that title. Admitting their power to change their laws
be supported by reason, and certainly cannot be rejected by or usages so far as to allow an individual to separate a portion of
courts of justice. 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
This question is not entirely new in this Court. The case of Fletcher dependent on their laws. The grant derives its efficacy from their
v. Peck grew out of a sale made by the State of Georgia of a large will, and if they choose to resume it and make a different
tract of country within the limits of that state, the grant of which disposition of the land, the courts of the United States cannot
was afterwards resumed. The action was brought by a interpose for the protection of the title. The person who purchases
subpurchaser on the contract of sale, and one of the covenants in lands from the Indians within their territory incorporates himself
the deed was that the State of Georgia was, at the time of sale, with them so far as respects the property purchased; holds their
seized in fee of the premises. The real question presented by the title under their protection and subject to their laws. If they annul
issue was whether the seizin in fee was in the State of Georgia or the grant, we know of no tribunal which can revise and set aside
in the United States. After stating that this controversy between the proceeding. We know of no principle which can distinguish
the several states and the United States had been compromised, this case from a grant made to a native Indian, authorizing him to
the court thought in necessary to notice the Indian title, which, hold a particular tract of land in severalty.
As such a grant could not separate the Indian from his nation, nor Page 21 U. S. 595
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 It is supposed to be a principle of universal law that if an
can perceive no legal principle which will authorize a court to say uninhabited country be discovered by a number of individuals
that different consequences are attached to this purchase because who acknowledge no connection with and owe no allegiance to
it was made by a stranger. By the treaties concluded any government whatever, the country becomes the property of
the discoverers, so far at least as they can use it. They acquire a
Page 21 U. S. 594 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
between the United States and the Indian nations whose title the society, expressed by the whole body or by that organ which is
plaintiffs claim, the country comprehending the lands in authorized by the whole to express it.
controversy has been ceded to the United States without any
reservation of their title. These nations had been at war with the If the discovery be made and possession of the country be taken
United States, and had an unquestionable right to annul any grant under the authority of an existing government, which is
they had made to American citizens. Their cession of the country acknowledged by the emigrants, it is supposed to be equally well
without a reservation of this land affords a fair presumption that settled, that the discovery is made for the whole nation, that the
they considered it as of no validity. They ceded to the United country becomes a part of the nation, and that the vacant soil is to
States this very property, after having used it in common with be disposed of by that organ of the government which has the
other lands as their own, from the date of their deeds to the time constitutional power to dispose of the national domains, by that
of cession, and the attempt now made, is to set up their title organ in which all vacant territory is vested by law.
against that of the United States.
According to the theory of the British Constitution, all vacant
The proclamation issued by the King of Great Britain in 1763 has lands are vested in the Crown, as representing the nation, and the
been considered, and we think with reason, as constituting an exclusive power to grant them is admitted to reside in the Crown
additional objection to the title of the plaintiffs. as a branch of the royal prerogative. It has been already shown
that this principle was as fully recognized in America as in the
By that proclamation, the Crown reserved under its own Island of Great Britain. All the lands we hold were originally
dominion and protection, for the use of the Indians, "all the land granted by the Crown, and the establishment of a regal
and territories lying to the westward of the sources of the rivers government has never been considered as
which fall into the sea from the west and northwest," and strictly
forbade all British subjects from making any purchases or Page 21 U. S. 596
settlements whatever or taking possession of the reserved lands.
impairing its right to grant lands within the chartered limits of
It has been contended that in this proclamation, the King such colony. In addition to the proof of this principle, furnished by
transcended his constitutional powers, and the case of Campbell v. the immense grants already mentioned of lands lying within the
Hall, reported by Cowper, is relied on to support this position. chartered limits of Virginia, the continuing right of the Crown to
grant lands lying within that colony was always admitted. A title application to the case at bar cannot be admitted. Since the
might be obtained either by making an entry with the surveyor of expulsion of the Stuart family, the power of imposing taxes by
a county in pursuance of law or by an order of the governor in proclamation has never been claimed as a branch of regal
council, who was the deputy of the King, or by an immediate grant prerogative, but the powers of granting, or refusing to grant,
from the Crown. In Virginia, therefore, as well as elsewhere in the vacant lands, and of restraining encroachments on the Indians
British dominions, the complete title of the Crown to vacant lands have always been asserted and admitted.
was acknowledged.
The authority of this proclamation, so far as it respected this
So far as respected the authority of the Crown, no distinction was continent, has never been denied, and the titles it gave to lands
taken between vacant lands and lands occupied by the Indians. have always been sustained in our courts.
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 In the argument of this cause, the counsel for the plaintiffs have
lands, then, to which this proclamation referred were lands which relied very much on the opinions expressed by men holding
the King had a right to grant, or to reserve for the Indians. offices of trust, and on various proceedings in America to sustain
titles to land derived from the Indians.
According to the theory of the British Constitution, the royal
prerogative is very extensive so far as respects the political The collection of claims to lands lying in the western country
relations between Great Britain and foreign nations. The peculiar made in the 1st volume of the Laws of the United States has been
situation of the Indians, necessarily considered in some respects referred to, but we find nothing in that collection to support the
as a dependent and in some respects as a distinct people argument. Most of the titles were derived
occupying a country claimed by Great Britain, and yet too
powerful and brave not to be dreaded as formidable enemies, Page 21 U. S. 598
required that means should be adopted for
from persons professing to act under the authority of the
Page 21 U. S. 597 government existing at the time, and the two grants under which
the plaintiffs claim are supposed by the person under whose
the preservation of peace, and that their friendship should be inspection the collection was made to be void, because forbidden
secured by quieting their alarms for their property. This was to be by the royal proclamation of 1763. It is not unworthy of remark
effected by restraining the encroachments of the whites, and the that the usual mode adopted by the Indians for granting lands to
power to do this was never, we believe, denied by the colonies to individuals has been to reserve them in a treaty or to grant them
the Crown. under the sanction of the commissioners with whom the treaty
was negotiated. The practice in such case to grant to the Crown for
In the case of Campbell v. Hall, that part of the proclamation was the use of the individual is some evidence of a general
determined to be illegal, which imposed a tax on a conquered understanding that the validity even of such a grant depended on
province, after a government had been bestowed upon it. The its receiving the royal sanction.
correctness of this decision cannot be questioned, but its
The controversy between the Colony of Connecticut and the course, entirely inapplicable to purchases made in America.
Mohegan Indians depended on the nature and extent of a grant Chalmers, in whose collection this opinion is found, does not say
made by those Indians to the colony; on the nature and extent of to whom it applies, but there is reason to believe that the author
the reservations made by the Indians, in their several deeds and of Plain Facts is, in this respect, correct. The opinion commences
treaties, which were alleged to be recognized by the legitimate thus:
authority; and on the violation by the colony of rights thus
reserved and secured. We do not perceive in that case any "In respect to such places as have been or shall be acquired by
assertion of the principle that individuals might obtain a complete treaty or grant from any of the Indian princes or governments,
and valid title from the Indians.
Page 21 U. S. 600
It has been stated that in the memorial transmitted from the
Cabinet of London to that of Versailles, during the controversy your Majesty's letters patent are not necessary."
between the two nations respecting boundary which took place in
1755, the Indian right to the soil is recognized. The words "princes or governments" are usually applied to the
East Indians, but not to those of North America. We speak of their
Page 21 U. S. 599 sachems, their warriors, their chiefmen, their nations or tribes,
not of their "princes or governments." The question on which the
But this recognition was made with reference to their character as opinion was given, too, and to which it relates, was whether the
Indians and for the purpose of showing that they were fixed to a King's subjects carry with them the common law wherever they
particular territory. It was made for the purpose of sustaining the may form settlements. The opinion is given with a view to this
claim of His Britannic Majesty to dominion over them. point, and its object must be kept in mind while construing its
expressions.
The opinion of the Attorney and Solicitor General, Pratt and Yorke,
have been adduced to prove that in the opinion of those great law Much reliance is also placed on the fact, that many tracts are now
officers, the Indian grant could convey a title to the soil without a held in the United States under the Indian title, the validity of
patent emanating from the Crown. The opinion of those persons which is not questioned.
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 Before the importance attached to this fact is conceded, the
seemed to advance. An opinion so contrary to the whole practice circumstances under which such grants were obtained, and such
of the Crown and to the uniform opinions given on all other titles are supported, ought to be considered. These lands lie
occasions by its great law officers ought to be very explicit and chiefly in the eastern states. It is known that the Plymouth
accompanied by the circumstances under which it was given, and Company made many extensive grants which, from their
to which it was applied before we can be assured that it is properly ignorance of the country, interfered with each other. It is also
understood. In a pamphlet written for the purpose of asserting the known that Mason to whom New Hampshire, and Gorges, to
Indian title, styled "Plain Facts," the same opinion is quoted, and whom Maine was granted, found great difficulty in managing such
is said to relate to purchases made in the East Indies. It is, of unwieldy property. The country was settled by emigrants, some
from Europe, but chiefly from Massachusetts, who took Page 21 U. S. 602
possession of lands they found unoccupied, and secured
themselves in that possession by the best means in their power. themselves into the midst of the Indian nations, and were seized
The disturbances in and possessed, by purchase and consent of the said natives, to
their full content, of such lands,"
Page 21 U. S. 601
&c. And the letter recites, that
England, and the civil war and revolution which followed those
disturbances, prevented any interference on the part of the "Thomas Chifflinch and others, having, in the right of Major
mother country, and the proprietors were unable to maintain Asperton, a just propriety in the Narraghanset Country, in New
their title. In the meantime, Massachusetts claimed the country England, by grants from the native princes of that country, and
and governed it. As her claim was adversary to that of the being desirous to improve it into an English colony, . . . are yet
proprietors, she encouraged the settlement of persons made daily disturbed."
under her authority, and encouraged likewise their securing
themselves in possession, by purchasing the acquiescence and The impression this language might make, if viewed apart from
forbearance of the Indians. After the restoration of Charles II, the circumstances under which it was employed, will be effaced,
Gorges and Mason, when they attempted to establish their title, when considered in connection with those circumstances.
found themselves opposed by men who held under Massachusetts
and under the Indians. The title of the proprietors was resisted, In the year 1635, the Plymouth Company surrendered their
and though in some cases compromises were made and in some, charter to the Crown. About the same time, the religious
the opinion of a court was given ultimately in their favor, the juries dissentions of Massachusetts expelled from that colony several
found uniformly against them. They became wearied with the societies of individuals, one of which settled in Rhode Island, on
struggle, and sold their property. The titles held under the Indians lands purchased from the Indians. They were not within the
were sanctioned by length of possession, but there is no case, so chartered limits of Massachusetts, and the English government
far as we are informed, of a judicial decision in their favor. was too much occupied at home to bestow its attention on this
subject. There existed no authority to arrest their settlement of
Much reliance has also been placed on a recital contained in the the country. If they obtained the Indian title, there were none to
charter of Rhode Island, and on a letter addressed to the assert the title of the Crown. Under these circumstances, the
governors of the neighboring colonies, by the King's command, in settlement became considerable. Individuals acquired separate
which some expressions are inserted, indicating the royal property in lands which they cultivated and improved; a
approbation of titles acquired from the Indians. government was established among themselves, and no power
existed in America which could rightfully interfere with it.
The charter to Rhode Island recites
On the restoration of Charles II, this small society
"That the said John Clark and others had transplanted
Page 21 U. S. 603
hastened to acknowledge his authority, and to solicit his This charter and this letter certainly sanction a previous
confirmation of their title to the soil, and to jurisdiction over the unauthorized purchase from Indians under the circumstances
country. Their solicitations were successful, and a charter was attending that particular purchase, but are far from supporting
granted to them, containing the recital which has been mentioned. the general proposition, that a title acquired from the Indians
would be valid against a title acquired from the Crown, or without
It is obvious that this transaction can amount to no the confirmation of the Crown.
acknowledgment that the Indian grant could convey a title
paramount to that of the Crown, or could in itself constitute a The acts of the several colonial assemblies prohibiting purchases
complete title. On the contrary, the charter of the Crown was from the Indians have also been relied on as proving that,
considered as indispensable to its completion. independent of such prohibitions, Indian deeds would be valid.
But we think this fact, at most, equivocal. While the existence of
It has never been contended that the Indian title amounted to such purchases would justify their prohibition, even by colonies
nothing. Their right of possession has never been questioned. The which considered Indian deeds as previously invalid, the fact that
claim of government extends to the complete ultimate title, such acts have been generally passed, is strong evidence of the
charged with this right of possession and to the exclusive power general opinion, that such purchases are opposed by the soundest
of acquiring that right. The object of the Crown was to settle the principles of wisdom and national policy.
seacoast of America, and when a portion of it was settled, without
violating the rights of others, by persons professing their loyalty, After bestowing on this subject a degree of attention which was
and soliciting the royal sanction of an act, the consequences of more required by the magnitude of the interest in litigation, and
which were ascertained to be beneficial, it would have been as the able and elaborate arguments of the bar, than by its intrinsic
unwise as ungracious to expel them from their habitations, difficulty, the court is decidedly of opinion, that the plaintiffs do
because they had obtained the Indian title otherwise than through not exhibit a title which can
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 Page 21 U. S. 605
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 be sustained in the courts of the United States, and that there is no
as of the powers of government. error in the judgment which was rendered against them in the
District Court of Illinois.
Page 21 U. S. 604
Judgment affirmed with costs.
The letter was written a few months before the charter was
issued, apparently at the request of the agents of the intended
colony, for the sole purpose of preventing the trespasses of
neighbors, who were disposed to claim some authority over them. #2
The King, being willing himself to ratify and confirm their title
was, of course, inclined to quiet them in their possession. U.S. Supreme Court
Chavez v. United States, 175 U.S. 552 (1899) some 5,000 acres of land in New Mexico, about one league from
the Manzano grant. The title is evidenced by a grant by the
Chavez v. United States territorial deputation of New Mexico, made in 1831, and the first
question in the case relates to the authority of that body to make
No. 14 the grant.

Argued October 17-18, 1899 It is also contended that if the territorial deputation did not have
the power to make the grant, and that power rested with the
Decided December 22, 1899 governor of the department, his presence in the territorial
deputation as its ex officio president when the grant was made,
175 U.S. 552 and, so far as the record shows, his not protesting but acquiescing
in its action, was equivalent to and the same as a grant made by
APPEAL FROM THE COURT himself in his official character as governor.

It is further stated that, by reason of the action of the governor in


OF PRIVATE LAND CLAIMS
writing the letter dated December 22, 1831, and hereinafter set
forth, that officer ratified and confirmed the grant, and in effect
Syllabus
made it his own.
In Mexico, in 1831, a departmental assembly or territorial
It appears from the record that, on February 28, 1831, citizen
deputation had no power or authority to make a grant of lands,
Nerio Antonio Montoya petitioned the honorable corporation of
and the fact that the governor presided at a meeting of the
Tome, and asked it that it would append to his petition its own
territorial deputation at the time such a grant was made, makes
report to the most excellent deputation, so that that body should
no difference, as the power to make the grant was exclusively in
grant him the land described in the petition. The corporation of
the governor, and the territorial deputation had no jurisdiction in
Tome, on the 19th of March, 1831, granted the prayer of the
the matter.
petitioner, and adopted a resolution which provided that his
petition should
The statement of the case will be found in the opinion of the Court.
"go before the most excellent territorial deputation, which, as the
MR. JUSTICE PECKHAM delivered the opinion of the Court. authority competent, may accede to the donation of the land
prayed for by the said petitioner without injuring the pastures and
This is an appeal from a judgment of the Court of Private Land watering places for the passers-by."
Claims refusing to confirm the title of the appellant to

Page 175 U. S. 553


The resolution was accordingly forwarded to the territorial In accordance with this action, the following direction by the
deputation, and that body on November 12, 1831, took action as deputation, signed by its secretary, was given the alcalde of the
follows: proper jurisdiction:

"(Extract from record of proceedings of the territorial deputation," "Santa Fe, November 12, 1831"

"session of November 12, 1831)" "The honorable the deputation of this territory, having received
the report of the constitutional council of Tome, appended to this
"The foregoing record having been read and approved, a petition petition, has resolved in this day's session to grant the land prayed
of citizen Nerio Montoya, a resident of Valencia, in which he asks for by the petitioner, charging the alcalde of said jurisdiction to
for the donation, for agricultural purposes, of a tract of vacant land execute the document that will secure the grantee in the grant
in the Manzano within the limits of the Ojo de en Medio as far as hereby made to him."
the rancheria, was taken up and the
"Abreu, Secretary"
Page 175 U. S. 554
The alcalde thereupon executed a document which, after reciting
report of the respectable corporation council of Tome, in which it that,
is set forth that there is no objection to the concession of the said
land, having been heard it was ordered that it be granted." "In obedience to the decree of the most excellent deputation of
this territory made under date of November 12 of the current year
"* * * *" on the margin of the petition which, under date of February 28,
the citizen Nerio Antonio Montoya, resident of this said
"The session was adjourned." jurisdiction, presented to this honorable council, and on which
petition is recorded the report made by this council, in accordance
"Santiago Abreu, President (Rubrick)" with which report its excellency has deemed it proper to accede
to the petition of Montoya, granting him full and formal
"Juan Rafael Ortiz (Rubrick)" possession of the tract he prayed for,"

"Anto. Jose Martinez (Rubrick)" etc., declared that

"Jose Manl. Salazar (Rubrick)" "Montoya, whenever he may choose or think best to do, may notify
me to proceed with him to the locality to place him in possession
of the property
"Teodosio Quintana (Rubrick)"
Page 175 U. S. 555
"Ramon Abreu, Secretary (Rubrick)"
granted him, with all the customary formality," Various mesne conveyances were put in evidence on the trial,
showing the transfer to the appellant of whatever title Montoya
etc. This was dated December 7, 1831, and signed by the alcalde. had to the land described, and it was then admitted that the
appellant herein has succeeded to all the rights of the original
On December 12 in the same year, the same alcalde, grantee, if any, in this case. Evidence of possession under this
grant was also given.
"in compliance with the provision made by this most excellent
deputation of this territory and the notification given me by the The court below held that the departmental assembly or
citizen Nerio Antonio Montoya," territorial deputation had no power or authority to make a grant
of lands at the time the grant in this case was attempted to be
proceeded with Montoya to the tract of land granted him and made, and that the fact that the governor may have presided at the
placed him in possession thereof, the act being signed by the meeting at the time the action was taken made no difference, as
alcalde. the power to make the

There was also put in evidence on the trial of the action in the Page 175 U. S. 556
court below, on the question of ratification, the following:
grant was exclusively in the governor, and the territorial
"Office of the Political Chief of New Mexico" deputation had no jurisdiction in the matter. The claim was
therefore rejected.
"By your official communication of the 20th instant, I am advised
of your having executed the decree of the most excellent We think that in thus deciding, the court below was right.
deputation granting to the citizen Nerio Antonio Montoya a tract
of land." We refer to some of the cases which show the territorial
deputation did not have the power to make a grant, but only the
"But in regard to the inquiry you make of me, as to how much your power to subsequently approve it.
fee should be, I inform you that I am ignorant in the premises, and
that you may, if you choose to do, put the question to the assessor In United States v. Vallejo, 1 Black 541, it was held that the Mexican
(asesor), who is the officer to whom it belongs, to advise the law of 1824 and the regulations of 1828 altered and repealed the
justices of first instance in such cases." Spanish system of disposing of public lands, and that the law and
the regulations from the time of their passage were the only laws
"God and Liberty. Santa Fe, December 22, 1831." of Mexico on the subject of granting public lands in the territories.
It was also held that the governor did not possess any power to
"Jose Antonio Chavez" make grants public lands independently of that conferred by the
act of 1824 and the regulations of 1828. Mr. Justice Nelson, who
"To Alderman Miguel Olona" delivered the opinion of the Court in that case, refers to the
various sections of the law of 1824, and also to the regulations of which in fact amounted to over two million, the grantees binding
November, 1828, for the purpose of showing that the governors themselves, if the grant were made, to construct two wells for the
of the territories were authorized to grant vacant lands within relief and aid of travelers, and to establish two factories for the
their respective territories with the object of cultivation or use of the state, and to protect them from hostile invasion. The
settlement, and that the grants made by them to individuals or governor transmitted the petition to the assembly, but declined to
families were not to be definitively valid without the previous recommend that favorable action should be taken upon it. The
consent of the departmental assembly, and when the grant assembly, notwithstanding this refusal, granted the tract on
petitioned for had been definitively made a patent, signed by the January 10, 1846, for the purpose of constructing wells and
governor, was to be issued, which was to serve as a title to the cultivating the land, etc., and the question was as to the validity of
party. This case did not decide that the territorial deputation this grant.
could not make a valid grant, because the grant was made by the
governor, but the various extracts from the law and regulations The opinion was delivered by Mr. Justice Davis, who stated that it
indicate very plainly that the authority to initiate a grant of public had been repeatedly decided by this Court that the only laws in
lands existed in the governor alone, and not in the assembly. force in the territories of Mexico, for the disposition of public
lands, with the exception of those relating to missions and towns,
In United States v. Vigil, 13 Wall. 449, it was held that were the act of the Mexican Congress of 1824 and the regulations
departmental assemblies (territorial deputations) had no power of 1828. In the course of his opinion, he said:
to make a grant.
"These regulations conferred on the governors of the territories,
In his argument at the bar, counsel for this appellant contended 'the political chiefs,' as they are called, the authority to grant
that the territorial deputation had lawful power and vacant lands, and did not delegate it to the departmental
assembly. It is true the grant was not complete until the approval
Page 175 U. S. 557 of the assembly, and in this sense the assembly and governor
acted concurrently, but the initiative must be taken by the
authority to make the grant to Montoya, and in order to maintain governor. He was required to act in the first instance -- to decide
that proposition, stated that it was necessary to discuss the effect whether the petitioner was a fit person to receive the grant, and
of the decision of this Court in United States v. Vigil. He claimed whether the land itself could be granted without prejudice to the
that what was said as to the lack of power in the territorial public or individuals. In case the
deputation to make a grant was not necessary to the decision of
the Court in that case, and that such expressions as were therein Page 175 U. S. 558
used regarding the question would not therefore constitute a
precedent now binding on this Court. information was satisfactory on these points, he was authorized
to make the grant, and at the proper time to lay it before the
In Vigil's case, there was a petition to the departmental assembly, assembly, who were required to give or withhold their consent.
through the Governor of New Mexico, asking for a grant of land They were in this respect an advisory body to the governor, and
sustained the same relation to him that the Senate of the United resemblance to United States v. Percheman, 7 Pet. 51, 32 U. S. 96,
States does to the President in the matter of appointments and or to United States v. Clarke, 8 Pet. 436, 33 U. S. 447, 33 U. S. 453.
treaties." In those cases, it was not denied that the governor had authority
in
A subsequent portion of the opinion dealt with the case upon the
assumption that the grant had been made by the governor, and Page 175 U. S. 559
even in that case it was said the grant would have been invalid
because it violated the fundamental rule on which the right of some circumstances to make grants, and it was therefore held that
donation was placed by the law; that the essential element of a grant made by him was prima facie evidence that he had not
colonization was wanting, and that the number of acres granted exceeded his power in making it, and that he who denied it took
was enormously in excess of the maximum quantity grantable upon himself the burden of showing that the officer by making the
under the law. This in nowise affected the prior ground upon grant had transcended the power reposed in him. There is in the
which the opinion was based, that the departmental assembly had case before us no evidence that the territorial deputation had the
no power to make the grant. That was the essential and material power, in any event, to make grants other than the fact that in
question directly involved in the case, while the second ground some instances it assumed to make them.
mentioned was based upon an assumption that, even if the
governor had made the grant, it would still have been void for the The cases heretofore decided in this Court, and some of which
reason stated. The court did not base its decision that the have been above referred to, show that such fact is inadequate to
departmental assembly had no power to make the grant because prove the existence of the authority.
of its enormous extent. It held that the assembly had no power to
make any grant, no matter what its size. It is, as we think, a It is, however, urged that the record of the action of the territorial
decision covering this case. deputation in regard to this grant shows that the governor and ex
officio president of the deputation was present when the
In Hayes v. United States, 170 U. S. 637, the grant was by the deputation decided to make the grant as petitioned for, and that
territorial deputation of New Mexico, and it was stated by MR. his being so present and attesting the action of the deputation was
JUSTICE WHITE, speaking for the Court, that equivalent to the making of the grant himself as governor. We do
not think so. He did not assume to make any grant whatever, and
"it cannot be in reason held that a title to land derived from a certainly none in his character as governor. It does not even
territory which the territorial authorities did not own, over which appear beyond doubt that he was present when the deputation
they had no power of disposition, was regularly derived from made the grant. His signature is perfectly consistent with a mere
either Spain or Mexico or a State of the Mexican nation." authentication of the previous action of that body.

No presumption that the territorial deputations had authority to The petition of Montoya was addressed primarily to the
make grants can arise from the fact that in some instances those corporation of Tome, and he requested that corporation to send
bodies assumed to make them. The case in this respect bears no his petition, approved by it, to the deputation to make him a grant
of the land described in his petition. Acting under that request, the exercised that power, or performed an act equivalent to its
corporation of Tome sent his petition to the "most excellent exercise, by presiding ex officio at a meeting of the territorial
territorial deputation," and asked that body to accede to the deputation which made a grant of lands in conformity to a petition
donation of the land prayed for. In conformity to the petition, the solely addressed to it and by authenticating as president the
territorial deputation itself made the grant. The fact that the action of the deputation in deciding that the grant should be made.
governor, being ex officio a member of the deputation, signed as
president of that body the record of the act of the deputation is not The two positions, president of the deputation and governor, are
the equivalent of a grant by him in his official character of separate and distinct, and the action of a governor merely as
governor, nor does such act bear any resemblance to a grant by president of the deputation, and of the nature above described is
him. No one on reading the record would get the idea that the not in any sense and does not purport to be his separate and
governor independent action as governor, making a grant of lands pursuant
to a petition addressed to him officially. As governor, he might
Page 175 U. S. 560 refuse the grant upon a petition addressed to himself, when as
president of the deputation he might sign the record
was himself making the grant, or that he thereby intended so to authenticating its action in regard to a petition
do. It does not even show that he was in favor of the grant as made
by the deputation. His signing the record constituted nothing Page 175 U. S. 561
more than an authentication of the act of the deputation. It
purported to be nothing else. He might have properly signed the addressed solely to that body. And it is obvious from the wording
record if in fact he had voted against the grant, and had been of the record that the president of the deputation was not
opposed to the action of the assembly. He might have signed the assuming to act as governor upon a petition addressed to himself,
record as an authentication, and yet have been absent at the time but only as the president of the deputation. It might have been that
of the action of the assembly. In any event, it was his signature as he acquiesced in the assumption by the deputation of the right to
an ex officio member or presiding officer of the deputation, make the grant, but his act of signing the record cannot be
attesting or perhaps assenting to its action, and it was not his tortured into a grant or as the equivalent of a grant by himself.
action as governor making a grant in that capacity. The signature
by the secretary alone, to the instrument (above set forth, dated It is further urged that there has been what amounts to a grant by
November 12, 1831) which recites the previous action of the the governor by reason of his letter of December 22, 1831, signed
deputation, and charges the alcalde of the jurisdiction to execute by him and above set forth, thus, as is claimed, ratifying the grant
the document which will secure the grantee in the grant, is simply of the deputation and making it his own.
a direction to the alcalde, and has no materiality upon this branch
of the case other than as confirming the view that the grant was The only evidence that the person who signed the letter was the
solely that of the deputation. governor at that time is the heading of the letter, "Office of the
Political Chief of New Mexico." It will be also noted that the person
We cannot hold that, when the power was given under the laws of signing it is not the same one who signed the record of November
Mexico to the governor to make grants of lands, he in any manner
12, 1831, as president of the deputation. But, assuming that while, on the other hand, his silence might simply be construed as
Chavez was governor in December, 1831, when he signed the evidence of his unreadiness at that time to dispute, or possibly of
letter, he therein simply acknowledged the receipt of the official his belief in the validity of the action of the deputation. Or his
communication of the alcalde, in which that officer reports that he silence might have been simply the result of his approval of the act
had executed the decree "of the most excellent deputation, of the alcalde in obeying the commands of the deputation, while
granting to the citizen Nerio Antonio Montoya a tract of land." In he thought it was not the proper occasion upon which to contest
reply to the question as to how much the alcalde's fee should be, or deny the validity of the grant which the deputation had actually
he answered that he was ignorant of the premises, and advised the made. Many reasons for his silence might be suggested, but the
alcalde to put the question to the assessor, the officer to whom it claim that it equaled in law a positive grant by the governor is, as
belonged to advise the justices in the first instances in such cases. we think, untenable.

Now what does the governor ratify by this letter? Nothing. While such silence is entirely consistent with other views that
might have been held by the governor, it certainly cannot properly
The contention in favor of the grant, based upon the letter, is that, be ascribed, as a legal inference from the facts stated, to his desire
assuming the governor had power to make the grant, it was his to make the grant himself, nor could it be said that his desire (if he
duty when he learned from the report of the alcalde that one had had it) was the legal equivalent of an actual grant.
been made by the deputation, and that possession had been
delivered under it, to protest against and to deny the power of the His knowledge that another body had assumed to make a grant is
deputation to make such grant, and unless he did so, his silence not equivalent to the making of the grant himself, and he was the
was evidence of the fact that he not only approved the act of the person who alone had power to make it. There is nothing in the
deputation in making the grant, but that he approved it as his own, letter which aids the plaintiff herein.
and that such
Finally, it distinctly appears that the possession of the parties is
Page 175 U. S. 562 insufficient in length of time to prove a valid title. In United States
v. Chaves, 159 U. S. 452, the possession was under the claim of a
approval was the same as if the governor had himself made the grant made by the governor of New Mexico to the alleged
grant, and in substance and effect it was his grant. grantees. The grant had been lost, but it had been seen and read
by witnesses, and its existence had been proved by evidence
This contention, we think, is not founded upon any legal principle, sufficient, as was stated in the opinion
and is in itself unreasonable. The writer of the letter is not the
same person who signed the record of the proceedings of the Page 175 U. S. 563
deputation. The report of the alcalde gave him the information
which, it is true, he may have had before, that the deputation had (page 159 U. S. 460), to warrant
assumed the power to grant the land. His protest as to the legality
of such action would not have altered the fact that it had occurred,
"the finding of the court below that the complainants' title was We think the judgment of the court below should be
derived from the Republic of Mexico, and was complete and
perfect at the date when the United States acquired sovereignty in Affirmed.
the Territory of New Mexico, within which the land was situated."

We do not question the correctness of the remarks made by MR.


JUSTICE SHIRAS in regard to evidence of possession and the
presumptions which may under certain circumstances be drawn
as to the existence of a grant.

We do not deny the right or the duty of a court to presume its


existence in a proper case, in order to quiet a title and to give to
long continued possession the quality of a rightful possession
under a legal title. We recognize and enforce such rule in the case
of United States v. Chavez, decided at this term, in which the
question is involved. We simply say in this case that the
possession was not of a duration long enough to justify any such
inference.

There is no proof of any valid grant, but, on the contrary, the


evidence offered by the plaintiff himself and upon which he bases
the title that he asks the court to confirm, shows the existence of
a grant from a body which had no legal power to make it, and
which therefore conveyed no title whatever to its grantee, and the
evidence is, as given by the plaintiff himself, that it was under this
grant alone that possession of the lands was taken. We cannot
presume (within the time involved in this case) that any other and
valid grant was ever made. The possession of the plaintiff and of #3
his grantors up to the time of the Treaty of Guadalupe Hidalgo, in
1848, had not been long enough to presume a grant. Crespin v. Republic of the Philippines
United States, 168 U. S. 208; Hayes v. United States, 170 U. S. SUPREME COURT
637, 170 U. S. 649; Hays v. United States, ante, 175 U. S. 248. The Manila
possession subsequently existing, we cannot notice. Same
authorities. EN BANC

G.R. No. 1413 March 30, 1904


ANDRES VALENTON, ET AL., plaintiffs-appellants, occupation a cook, denounced the said lands to the then
vs. existing Government of the Philippine Islands, declaring
MANUEL MURCIANO, defendant-appellee. that the said lands every part thereof were public, untilled,
and unoccupied lands belonging to the then existing
Montagne and Dominguez for appellants. Government of the Philippine Islands, and petitioned for
Del Pan, Ortigas and Fisher for appellee. the sale of the same to him.

WILLARD, J.: Fifth. That before the execution of the sale heretofore
mentioned, various proceedings were had for the survey
I. The findings of fact made by the court below in its decision are and measurement of the lands in question at the instance
as follows: of the defendant, Murciano, the latter acting as agent and
attorney in fact of said Candido Capulong, a written
First. That in the year 1860, the plaintiffs, and each one of protest, however, having been entered against these
them, entered into the peaceful and quiet occupation and proceedings by the plaintiff Andres Valenton.
possession of the larger part of the lands described in the
complaint of the plaintiffs, to wit [description]: Sixth. That on the 14th day of July, 1892, Don Enrique
Castellvie Ibarrola, secretary of the treasury of the
Second. That on the date on which the plaintiffs entered Province of Tarlac, in his official capacity as such
into the occupation and possession of the said lands, as secretary, executed a contract of purchase and sale, by
above set forth, these lands and every part thereof were which said lands were sold and conveyed by him to the
public, untilled, and unoccupied, and belonged to the then defendant, Manuel Murciano, as attorney for the said
existing Government of the Philippine Islands. That Candido Capulong.
immediately after the occupation and possession of the
said lands by the plaintiffs, the plaintiffs began to cultivate Seventh. That on the 19th day of July, 1892, said Candido
and improve them in a quiet and peaceful manner. Capulong executed a contract of purchase and sale, by
which he sold and conveyed the said lands to the
Third. That from the said year 1860, the plaintiffs defendants, Manuel Murciano.
continued to occupy and possess the said lands, quietly
and peacefully, until the year 1892, by themselves, by their Eight. That from the said 14th day of July, 1892, Manuel
agents and tenants, claiming that they were the exclusive Murciano has at no time occupied or possessed all of the
owners of said lands. land mentioned, but has possessed only certain in distinct
and indefinite portions of the same. That during all this
Fourth. That on or about the 16th day of January, 1892, time the plaintiffs have opposed the occupation of the
Manuel Murciano, defendant in this proceeding, acting on defendant, and said plaintiffs during all the time in
behalf of and as attorney in fact of Candido Capulong, by question have been and are in the possession and
occupation of part of the said lands, tilling them and excepted would run against the State as to its public lands we do
improving them by themselves and by their agents and not find it necessary to decide. Reasons based upon public policy
tenants. could be adduced why it should not, at least as to such public lands
as are involved in this case. (See Act No. 926, sec. 67.) We are,
Ninth. That never, prior to the said 14th day of July,, 1892, however, of the opinion that the case at bar must be decided, not
has the defendant, Manuel Murciano, been in the peaceful by the general statute of limitation contained in the Partidas, but
and quiet possession and occupation of the said lands, or by those special laws which from the earliest times have regulated
in the peaceful and quiet occupation of any part thereof. the disposition of the public lands in the colonies.

Upon these facts the Court of First Instance ordered judgment for Did these special laws recognize any right of prescription against
the defendant on the ground that the plaintiffs had lost all right to the State as to these lands; and if so, to what extend was it
the land by not pursuing their objections to the sale mentioned in recognizes? Laws of very early date provided for the assignment
the sixth finding. The plaintiffs excepted to the judgment and of public lands to the subjects of the Crown. Law 1, title 12, book
claim in this court that upon the facts found by the court below 4 of the Recopilacion de Leyes de las Indias is an example of them,
judgment should have been entered in their favor. Their and is as follows:
contention is that in 1890 they had been in the adverse possession
of the property for thirty years; that, applying the extra ordinary In order that our subjects may be encouraged to
period of prescription of thirty years, found as well in the Partidas undertake the discovery and settlement of the Indies, and
as in the Civil Code, they then became the absolute owners of the that they may live with the comfort and convenience
land as against everyone, including the State, and that when the which we desire, it is our will that there shall be
State in 1892 deeded the property to the defendant, nothing distributed to all those who shall go out to people the new
passed by the deed because the State had nothing to convey. territories, houses, lots, lands, peonias, and caballerias in
the towns and places which may be assigned to them by
The case presents, therefore, the important question whether or the governor of the new settlement, who in apportioning
not during the years from 1860 to 1890 a private person, situated the lands, will distinguish between gentlemen and
as the plaintiffs were, could have obtained as against the State the peasants, and those of lower degree and merit, and who
ownership of the public lands of the State by means of occupation. will add to the possessions and better the condition of the
The court finds that at the time of the entry by the plaintiff in 1860 grantees, according to the nature of the services rendered
the lands were vacant and were public lands belonging to the then by them, and with a view to the promotion of agriculture
existing Government. The plaintiffs do not claim to have ever and stock raising. To those who shall have labored and
obtained from the Government any deed for the lands, nor any established a home on said lands and who shall have
confirmation of their possession. resided in the said settlement for a period of four years we
grant the right thereafter to sell and in every other manner
Whether in the absence of any special legislation on the subject a to exercise their free will over said lands as over their own
general statute of limitations in which the State was not expressly property. And we further command that, in accordance
with their rank and degree, the governor, or whoever may
be invested with our authority, shall allot the Indians to We command that if a petition shall be presented asking
them in any distribution made, so that they may profit by the grant of a lot or tract of land in a city or town in which
their labor and fines in accordance with the tributes one of our courts may be located, the presentation shall be
required and the law controlling such matters. made to the municipal council. If the latter shall approve
the petition, two deputy magistrates will be appointed,
And in order that, in allotting said lands, there may be no who will acquaint the viceroy or municipal president with
doubt as to the area of each grant, we declare that the council's judgment in the matter. After consideration
a peonia shall consist of a tract fifty feet in breadth by one thereof by the viceroy or president and the deputy
hundred in length, with arable land capable of producing magistrates, all will sign the grants, in the presence of the
one hundred bushels of wheat or barley, ten bushels of clerk of the council, in order that the matter may be duly
maize, as much land for an orchard as two yokes of oxen recorded in the council book. If the petition shall be for the
may plough in a day, and for the planting of other trees of grant of waters and lands for mercantile purpose, it shall
a hardy nature as much as may be plowed with eight yokes be presented to the viceroy or municipal president, who
in a day, and including pasture for twenty cows, five will transmit it to the council. If the latters shall vote to
mares, one hundred sheep, twenty goats, and ten breeding make the grant, one of the magistrates will carry its
pigs. A caballeria shall be a tract one hundred feet in decision to the viceroy or president, to the end that, upon
breadth and two hundred in length, and in other respects consideration of the matter by him, the proper action may
shall equal five peonias — that is, it will include arable be taken.
land capable of producing five hundred bushels of wheat
or barley and fifty bushels of maize, as much land for an It happened, in the course of time, that tracts of the public land
orchard as may be ploughed with ten yokes of oxen in a were found in the possession of persons who either had no title
day, and for the planting of other hardy trees as much as papers therefor issued by the State, or whose title papers were
forty yokes may plough in a day, together with pasturage defective, either because the proper procedure had not been
for one hundred cows, twenty mares, five hundred sheep, followed or because they had been issued by persons who had no
one hundred goats, and fifty breeding pigs. And we order authority to do so. Law 14, title 12 book 4 of said compilation
that the distribution be made in such a manner that all (referred to in the regulations of June 25, 1880, for the
may receive equal benefit therefrom, and if this be Philippines) was the first of a long series of legislative acts
impracticable, then that each shall be given his due. intended to compel those in possession of the public lands,
without written evidence of title, or with defective title papers, to
But it was necessary, however, that action should in all cases be present evidence as to their possession or grants, and obtain the
taken by the public officials before any interest was acquired by confirmation of their claim to ownership. That law is as follows:
the subject.
We having acquitted full sovereignty over the Indies, and
Law 8 of said title 12 is as follows: all lands territories, and possession not heretofore ceded
away by our royal predecessors, or by, or in our name, still
pertaining to the royal crown and patrimony, it is our will
that all lands which are held without proper and true the king was not still the owner of all ungranted lands, because
deeds of grants be restored to us according as they belong some private person had been in the adverse occupation of them.
to us, in order that after reserving before all what to us or By the mandatory part of the law all the occupants of the public
to our viceroys, audiencias, and governors may seem lands are required to produce before the authorities named, and
necessary for public squares, ways, pastures, and within a time to be fixed by them, their title papers. And those who
commons in those places which are peopled, taking into had good title or showed prescription were to be protected in
consideration not only their present condition, but also their holdings. It is apparent that it was not the intention of the
the future and their probable increase, and after law that mere possession for a length of time should make the
distributing to the natives what may be necessary for possessors the owners of the lands possessed by them without
tillage and pasturage, confirming them in what they now any action on the part of the authorities. It is plain that they were
have and giving them more if necessary, all the rest of said required to present their claims to the authorities and obtain a
lands may remain free and unencumbered for us to confirmation thereof. What the period of prescription mentioned
dispose of as we may wish. in this law was does not appear, but latter, in 1646, law 19 of the
same title declared "that no one shall be 'admitted to adjustment'
We therefore order and command that all viceroys and unless he has possessed the lands for ten years."
presidents of pretorial courts designated, at such time as
shall to them seem most expedient, a suitable period In law 15, title 12, book 4 of the same compilation, there is a
within which all possessors of tracts, farms, plantations, command that those lands as to which there has been no
and estates shall exhibit to them, and to the court officers adjustment with the Government be sold at auction to the highest
appointed by them for this purpose, their title deeds bidder. That law is as follows:
thereto. And those who are in possession by virtue of
proper deeds and receipts, or by virtue of just prescriptive For the greater good of our subjects, we order and
right shall be protected, and all the rest shall be restored command that our viceroys and governing presidents
to us to be disposed of at our will. shall do nothing with respect to lands the claims to which
have been adjusted by their predecessors, tending to
While the State has always recognized the right of the occupant to disturb the peaceful possession of the owners thereof. As
deed if he proves a possession for a sufficient length of time, yet it to those who shall have extended their possession beyond
has always insisted that he must make that proof before the the limits fixed in the original grants, they will be admitted
proper administrative officers, and obtain from them his deed, to a moderate adjustment with respect to the excess, and
and until he did that the State remained the absolute owner. new title deeds will be issued therefor. And all those lands
as to which no adjustment has been made shall, without
In the preamble of this law there is, as is seen, a distinct statement exception, be sold at public auction to the highest bidder,
that all those lands belong to the Crown which have not been the purchase price therefor to be payable either in cash or
granted by Philip, or in his name, or by the kings who proceeded in the form of quitrent, in accordance with the laws and
him. This statement excludes the idea that there might be lands no royal ordinances of the kingdoms of Castile. We leave to
so granted, that did not being to the king. It excludes the idea that the viceroys and president the mode and from in which
what is here ordered shall be carried into effect in order the year 1700, and up to the date of the promulgation and
that they may provide for it at the least possible cost; and publication of said order, shall have occupied royal lands,
in order that all unnecessary expense with respect to the whether or not the same shall be cultivated of tenanted,
collections for said lands may be avoided, we command may, either in person or through their attorneys or
that the same be made by our royal officers in person, representatives, appear and exhibit to said subdelegates
without the employment of special collectors, and to that the titles and patents by virtue of which said lands are
end availing themselves of the services of our royal courts, occupied. Said subdelegates will designate as the period
and, in places where courts shall not have been within which such documents must be presented a term
established, of the town mayors. sufficient in length and proportionate to the distance the
interested party may have to travel for the purpose of
And whereas, title deeds to lands have been granted by making the presentation. Said subdelegates will at the
officers not authorized to issue them, and such titles have same time warn the parties interested that in case of their
been confirmed by us in council, we command that those failure to present their title deeds within the term
holding such a certificate of confirmation may continue to designated, without a just and valid reason therefor, they
possess the lands to which it refers, and will, within the will be deprived of an evicted from their lands, and they
limits stated in the confirmation certificate, be protected will be granted to others.
in their possession; and with respect to any encroachment
beyond such limits will be admitted to the benefits of this 4. If it shall appear from the titles or instruments
law. presented, or if it shall be shown in any other legal manner
that said persons are in possession of such royal lands by
Another legislative act of the same character was the royal cedula virtue of a sale or adjustment consummated by duly
of October 15, 1754 (4 Legislacion Ultramarina, Rodriguez San authorized subdelegates prior to the said year 1700,
Pedro, 673). Articles 3, 4, and 5 of this royal cedula as follows: although such action may not have been confirmed by my
royal person, or by a viceroy or president, they shall in no
3. Upon each principal subdelegate's appointment, which wise be molested, but shall be left in the full and quiet
will be made in the manner prescribed in article 1 of this possession of the same; nor shall they be required to pay
cedula, and upon his receipts of these instructions, of any fee on account of these proceedings, in accordance
which every principal subdelegate already designated or with law 15, title 12, book 4 of the Recopilacion de los
who may hereafter be appointed shall be furnished a copy, Indias, above cited. A note shall be made upon said title
said subdelegate will in his turn issue a general order to deeds to the effect that his obligation has been complied
the courts in the provincial capitals and principal towns of with, to the end that the owners of such rival lands and
his district, directing the publication therein, in the their successors may hereafter be free from denunciation,
manner followed in connection with the promulgation or summons, or other disturbance in their possession.
general orders of viceroys, presidents, and administrative
courts in matters connected with my service, of these Where such possessors shall not be able to produce title
instructions, to the end that any and all persons who, since deeds it shall be sufficient if they shall show that ancient
possession, as a valid title by prescription; provided, possessor, in my royal name, a confirmation of his title, by
however, that if the lands shall not be in state of virtue of which his possession and ownership of lands and
cultivation or tillage, the term of three months prescribed waters which it represents will be fully legalized, to the
by law 11 of the title and book cited, or such other period end that at no time will he or his heirs or assigns be
as may be deemed adequate, shall be designated as the disturbed or molested therein.
period within which the lands must be reduced to
cultivation, with the warning that in case of their failure so The wording of this law is much stronger than that of law 14. As is
to do the lands will be granted, with the same obligation seen by the terms of article 3, any person whatever who occupied
to cultivate them, to whomsoever may denounce them. any public land was required to present the instruments by virtue
of which he was in possession, within a time to be fixed by the
5. Likewise neither shall possessors of lands sold or authorities, and he was warned that if he did not do so he would
adjusted by the various subdelegates from the year 1700 be evicted from his land and it would be granted to others. By
to the present time be molested, disturbed, or denounced, terms of article 4 those possessors to whom grants had been made
now or at any other time, with respect to such possession, prior to 1700, were entitled to have such grants confirmed, and it
if such sales or adjustments shall have been confirmed by was also provided that not being able to prove any grants it should
me, or by the viceroy or the president of the court of the be sufficient to prove "that ancient possession," as a sufficient title
district in which the lands are located while authorized to by prescription, and they should be confirmed in their holdings.
exercise this power. In cases where the sales of "That ancient possession" would be at least fifty-four years, for it
adjustments shall not have been so confirmed, the would have to date from prior to 1700. Under article 5, where the
possessors will present to the courts of their respective possession dated from 1700, no confirmation could be granted on
district and to the other officials hereby empowered to proof of prescription alone.
receive the same, a petition asking for the confirmation of
said sales and adjustments. After the proceedings outlined The length of possession required to be proved before the
by the subdelegates in their order with respect to the Government would issue a deed has varied in different colonies
measurement and valuation of the said lands, and with and at different times. In the Philippines, as has been seen, it was
reference to the title issued therefor, shall have been duly at one time ten years, at another time fifty-four years at least. In
completed, said courts and officials will make an Cuba, by the royal cedula of April 24, 1833, to obtain a deed one
examination of the same for the purpose of ascertaining had to prove, as to uncultivated lands, a possession of one
whether the sale or adjustment has been made without hundred years, and as to cultivated lands a possession of fifty
fraud and collusion, and for an adequate and equitable years. In the same islands, by the royal order of July 16, 1819, a
price, and a similar examination shall be made by the possession of forty years was sufficient.
prosecuting attorney of the district, to the end that, in view
of all the proceedings and the purchase or adjustment In the Philippines at a later date royal of September 21, 1797
price of the land, and the media anata having been duly, (4 Legislacion Ultramarina, Rodriguez San Pedro, p. 688), directed
etc., paid into the royal treasury, as well as such additional the observation of the said royal cedula of 1754, but apparently
sum as may be deemed proper, there will be issued to the
without being subject to the period of prescription therein thing, which have never passed to private ownership by
assigned. virtue of cession by competent authorities, made either
gratuitously or for a consideration.
The royal order of July 5, 1862 (Gaceta de Manila, November 15,
1864), also ordered that until regulations on the subject could be ART. 4. For all legal effects, those will be considered
prepared the authorities of the Islands should follow strictly the proprietors of the royal lands herein treated who may
Laws of the Indies, the Ordenanza of the Intendentes of 1786, and prove that they have possessed the lands without
the said royal cedula of 1754. interruption during the period of ten years, by virtue of a
good title and in good faith.
The royal order of November 14, 1876 (Guia del Comprador de
Terrenos, p. 51), directed the provincial governors to urge those in ART. 5. In the same manner, those who without such title
unlawful possession of public lands to seek an adjustment with deeds may prove that they have possessed their said lands
the State in accordance with the existing laws. The regulations as without interruption for a period of twenty years if in a
to the adjustment (composicion) of the titles to public lands state of cultivation, or for a period of thirty years if
remained in this condition until the regulations of June 25, 1880. uncultivated, shall be regarded as proprietors thereof. In
This is the most important of the modern legislative acts upon the order that a tract of land may be considered cultivated, it
matter of "adjustment" as distinguished from that of the sale of the will be necessary to show that it has been broken within
public lands. the last three years.

The royal degree approving these regulations is dated June 25, ART. 6. Interested parties not included within the two
1880, and is as follows:1 preceding articles may legalize their possession and
thereby acquire the full ownership of the said lands, by
Upon the suggestion of the colonial minister, made in means of adjustment proceedings, to be conducted in the
conformity with the decree of the full meeting of the following manner: . . .
council of state, I hereby approve the attached regulations
for the adjustment of royal lands wrongfully occupied by (5) Those who, entirely without title deeds, may be in
private individuals in the Philippine Islands. possession of lands belonging to the State and have
reduced said lands to a state of cultivation, may acquire
Articles 1, 4, 5, 8, and part of article 6 are as follows: the ownership thereof by paying into the public treasury
the value of the lands at the time such possessors or their
ART. 1. For the purpose of these regulations and in representatives began their unauthorized enjoyment of
conformity with law 14, title 12, book 4 of the the same.
Recompilation of Laws of the Indies, the following will be
regarded as royal lands: All lands whose lawful ownership (6) In case said lands shall never have been ploughed, but
is not vested in some private, persons, or, what is the same are still in a wild state, or covered with forest, the
ownership of the same may be acquired by paying their (1) It will be noticed that article 4 does not say that those persons
value at the time of the filing of the claim, as stated in the shall be considered as owners who have occupied the lands for ten
fourth paragraph." years, which would have been the language naturally used if an
absolute grant had been intended. It says, instead, that those shall
ART. 8. If the interested parties shall not ask an be considered owners who may prove that they have been in
adjustment of the lands whose possession they are possession ten years. Was this proof to be made at any time in the
unlawfully enjoying within the time of one year, or, the future when the question might arise, or was it to be made in the
adjustment having been granted by the authorities, they proceedings which these very regulations provided for that
shall fail to fulfill their obligation in connection with the purpose? We think that the latter is the proper construction.
compromise, by paying the proper sum into the treasury,
the latter will, by virtue of the authority vested in it, (2) Article 1 declares in plain terms that all those lands as to which
reassert the ownership of the State over the lands, and the State has never executed any deeds are the property of the
will, after fixing the value thereof, proceed to sell at public State — that is, that on June 25, 1880, no public lands belonged to
auction that part of the same which either because it may individuals unless they could exhibit a State deed therefor. This is
have been reduced to cultivation or is not located within entirely inconsistent with the idea that the same law in its article
the forest zone is not deemed advisable to preserve as the 4 declares that the lands in question in this case became the
State forest reservation. property of the plaintiffs in 1870, and were not in 1880 the
property of the State, though the State had never given any deed
The other articles of the regulations state the manner in which for them.
applications should be made for adjustment, and the proceedings
thereon. (3) The royal decree, by its terms, relates to
lands wrongfully withheld by private persons. The
Do these regulations declare that those who are included in article word detentados necessarily implies this. This is inconsistent with
4 and 5 are the absolute owners of the land occupied by them the idea that by article 4 of the plaintiffs, in 1870, became the
without any action on their part, or that of the State, or do they absolute owners of the lands in question, and were not therefore,
declare that such persons must seek an adjustment and obtain a in 1880, withholding what did not belong to them.
deed from the State, and if they do not do so within the time
named in article 8 they lose all interest in the lands? (4) In the preface to this decree and regulations, the following
language is used:
It must be admitted from the wording of the law that the question
is not free from doubt. Upon a consideration, however, of the SIR: The uncertain, and it may be said the precarious, state
whole matter, that doubt must, we think, be resolved in favor of of real property in various parts of the Philippine Islands,
the State. The following are some of the reasons which lead us to as yet sparsely populated; the necessity for encouraging
that conclusion: the cultivation of these lands; the advantage of increasing
the wealth and products of the Archipelago; the immense
and immediate profit which must result to all classes of you should in turn have it understood by other, that the
interests, public as well as private, from the substitution adjustment of lands whose ownership has not passed to
of full ownership, with all the privileges which by law private individuals by virtue of cession by competent
accompany this real right, for the mere possession of the authorities, is optional only for those within the limits of
lands, have long counseled the adoption of the provisions the common district (legua comunal) as provided by
contained in the following regulations, which, after article 7. In all other cases where the interested parties
consulation with the Philippine council, and in conformity shall fail to present themselves for the adjustment of the
with an order passed at a full meeting of the council of lands occupied by them shall suffer the penalties set forth
state, the subscribing minister has the honor to submit for in article 8 of said regulations.
the royal approval. These regulations refer not only to
tenants of royal lands in good faith and by virtue of a valid In determining the meaning of a law where a doubt exists the
title, but also to those who, lacking these, may, either by construction placed upon it by the officers whose duty it is to
themselves reducing such lands to cultivation or by the administer it is entitled to weight.
application of intelligence and initiative, causing their
cultivation by others who lack these qualities, be (6) There is, moreover, legislative construction of these
augmenting the wealth of the Archipelago.2 regulations upon this point found in subsequent laws. The royal
decree of December 26, 1884, (Berriz Anuario, 1888, p. 117),
This preface is the most authoritative commentary on the law, and provides in articles 1 that —
shows without doubt that those who held with color of title and
good faith were, notwithstanding, holding wrongfully, and that All those public lands wrongfully withheld by private
true ownership should be substituted for their possession. person in the Philippines which, in accordance with the
regulations of June 25, 1880, are subject to adjustment
(5) This doubt suggested by the wording of the law was the with the treasury, shall be divided into three groups, of
subject of inquiries directed to the officers in Manila charged with which the first shall include those which, because they are
its execution. These inquiries were answered in the circular of included in articles 4 and 5, and the first paragraph of
August 10, 1881, published in the Gaceta de Manila August 11, article 7, are entitled to free adjustment.
1881, as follows:
There were exceptions to this rule which are not here important.
Should possessors of royal lands under color of title and in Article 10 provides that if the adjustment is free for those
good faith seek adjustment? mentioned in articles 4 and 5, who are included in the second
group, the deed shall be issued by the governor of the province.
It is evident that they must do so, for it is to them that Article 11 says that if the adjustment is not free, because the
article 4 of the regulations refers, as also the following applicant has not proved his right by prescription, then no deed
article covers other cases of possession under different can be issued until the proper payment has been made. The whole
circumstances. It should be well understood by you, and decree shows clearly that the legislator intended that those
mentioned in article 4 and 5 should apply for a confirmation of persons are required by section 56 to present a petition to the
their titles by prescription, as well as those mentioned in article 6. Court of Land Registration for a confirmation of these titles.
In fact, for the adjustment of those of the first group, which
necessarily included only those found within articles 4 and 5, a We have considered the regulations relating to adjustment — that
board was organized (art. 15) in each pueblo whose sole duty it is, those laws under which persons in possession might perfect
was to dispatch applications made said two articles. their titles. But there were other laws relating to the sale of public
lands which contained provisions fatal to the plaintiff's claims.
(7) The royal decree of August 31, 1888 (Berriz Anuario, 1888, p. The royal decree of January 26, 1889 (Gaceta de Manila, March 20,
120), is another legislative construction of this regulation. That 1889), approved the regulations for the sale of public lands in the
decree repealed the decree of 1884, and divided all lands subjects Philippines, and it was in accordance with such regulations that
to adjustment under the regulations of June 25, 1880, into two the appellee acquired his title. Article 4 of those regulations
groups. In the first group were all those lands which bordered at required the publication in the Gaceta de Manila of the application
any points on other State lands, and those which, though not to purchase, with a description of the lands, and gave sixty days
bordering on State lands, measured more than 30 hectares. In the within which anyone could object to the sale. A similar notice in
second group were those which were bounded entirely by lands the dialect of the locality was required to be posted on the
of private persons and did not exceed 30 hectares. For the second municipal building of the town in which the land was situated, and
group a provincial board was organized, and article 10 provides a to be made public by the crier. Articles 5 and 6 declared to whom
hearing before this board, and declares — such objections shall be made and the course which they should
take. Article 8 is as follows:
If no protest or claim shall be filed, and the adjustment
must be free because the occupant has proved title by ART. 8. In no case will the judicial authorities take
prescription, as provided in articles 4 and 5 of the cognizance of the suit against the decrees of the civil
regulations promulgated June 25, 1880, the proceedings administration concerning the sale of royal lands unless
shall be duty approved, and the head officer of the the plaintiff shall attach to the complaint documents
province will, in his capacity of deputy director general of which show that he has exhausted the administrative
the civil administration, issue the corresponding title remedy. After the proceeding in the executive department
deed. shall have been terminated and the matter finally passed
upon, anyone considering his interests prejudiced thereby
The policy pursued by the Spanish Government from the earliest may commence a suit in the court against the State; but in
times, requiring settlers on the public lands to obtain deeds no case shall an action be brought against the proprietor
therefor from the State, has been continued by the American of the land.
Government in Act No. 926, which takes effect when approved by
Congress. Section 54, sixth paragraph of that act, declares that the Similar provisions are found in the regulations of 1883, approved
persons named in said paragraph 6 "shall be conclusively the second time by royal order of February 16 (Gaceta de Manila,
presumed to have performed all the conditions essential to a June 28, 1883). Articles 18 and 23 of said regulations are as
Government grant and to have received the same." Yet such follows:
ART. 18. Possessors of such lands as may fall within the tribunal. In Spanish system this tribunal was called an
class of alienable royal lands shall be obliged to apply for administrative one, in the American a judicial one.
the ownership of the same, or for the adjustment thereof
within the term of sixty days from the time of the The court finds that the plaintiffs made a written protest against
publication in the bulletin of Sales of the notice of sale the sale to the defendants while the proceedings for the
thereof. measurements and survey of the land were being carried on, but
that they did not follow up their protest. This, as held by the court
ART. 23. The judicial authorities shall take cognizance of below, is a bar their recovery in this action, under the articles
no complaint against the decrees of the treasury above cited.
department concerning the sale of lands pertaining to the
state unless the complainant shall attached to the The plaintiff state in their brief that a great fraud was committed
complaint documents which proved that he has exhausted on them and the State by the defendant in applying for the
the administrative remedy. purchase of this lands as vacant and belonging to the public, when
they were in the actual adverse possession of the plaintiffs.
This prohibition appears also in the royal order of October 26,
1881 (Gaceta de Manila, December 18, 1881) which relates We have seen nothing in the regulations relating to the sale of the
evidently both to sales of public lands and also to the adjustments public lands which limited their force to vacant lands. On the
with the occupants. contrary there are provisions which indicate the contrary. In the
application for the purchase the petitioner is article 3 of the
Article 5 of this royal order is as follows: regulations of 1889 required to state whether any portion of the
land sought has been broken for cultivation, and to whom such
During the pendency of proceedings in the executive improvements belong. Article 9 provides that if one in possession
department with respect to grants of land, interested applies to purchase the land, he renounces his right to
parties may present through executive channels such a composicion under the laws relating to that subject. By article 13
protest as they may deemed advisable for the protection the report of the officials making the survey must contain a
of their right and interests. The proceeding having once statement as to whether any part of the land is cultivated or not
been completed, and the grant made, those who consider and if the applicant claims to be the owner of such cultivated part.
their interests prejudiced thereby may proceed in court
against the State, but under no circumstances against the In the regulations of January 19, 1883 (Gaceta de Manila, June 28,
grantees of the land. 1883) is the following article:

The American legislation creating the Court of Land Registration ART. 18. Possessors of such lands as may fall within the
is but an application of this same principle. In both systems the class of royal alienable lands shall be obliged to apply for
title is guaranteed to the petitioner, after examination by a the ownership of the same, or for the adjustment thereof,
within the term of sixty days from the time of the
publication in the Bulletin of Sales of the notice of sale judgment below declaring the defendant the owner of the lands
thereof. must be affirmed.

In view of all these provisions it seems impossible to believe that II. What has been said heretofore makes it unnecessary to
the legislators even intended to leave the validity of any sale made consider the motion for a new trial, made by the defendant on the
by the State to be determined at any time in the future by the ground that the findings of fact are not supported by the evidence.
ordinary courts on parol testimony. Such would be the result if the
contention of the plaintiffs is to be sustained. According to their III. The exception of the defendant to the order vacating the
claim, this sale and every other sale made by the State can be set appointment of the receiver can not be sustained. The defendant
aside if at any time in the future it can be proved that certain at no time made any showing sufficient to authorize the
persons had been in possession of the land for the term then appointment of a receiver.
required for prescription.
The case does not fall under No. 4 of section 174 of the Code of
If this claim is allowed it would result that even though written Civil Procedure. Neither party in his pleadings asked any relief as
title from the State would be safe from such attack by parol to the crops. They were not, therefore, "the property which is the
evidence, by means of such evidence damages could have been subject of litigation."
recovered against the State for lands sold by the State to which
third persons might thereafter prove ownership but prescription. Neither does the case fall under No. 2 of section 174, for the same
The unreliability of parol testimony on the subject of possession reason.
is well known. In this case in the report which the law required to
be made before a sale could be had it is stated by an Ayudante de Moreover, under No. 2 it must be shown that the property is in
Montes that the tract had an area of 429 hectares, 77 ares, and 96 danger of being lost. There was no showing of that kind. The
centares uncultivated, and 50 hectares, 19 ares, and 73 centares pleadings say nothing upon the subject. In the motion for the
broken for cultivation. The official report also says (1890) that the appointment of the receiver it said that the plaintiffs are insolvent.
breaking is recent. Notwithstanding this official report, the There is no evidence, by affidavit or otherwise, to support this
plaintiffs introduced evidence from which the court found that the statement. A bare, unsworn statement in a motion that the
greater part of the tract had been occupied and cultivated by the adverse party is insolvent is not sufficient to warrant a court in
plaintiffs since 1860. appointing a receiver for property in his possession.

It is hardly conceivable that the State intended to put in force The judgment of the court below is affirmed. Neither party can
legislation under which its property rights could be so prejudiced. recover costs in this court.

We hold that from 1860 to 1892 there was no law in force in these
Islands by which the plaintiffs could obtain the ownership of these
lands by prescription, without any action by the State, and that the
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.

#4 While, in legal theory and as against foreign nations, sovereignty


is absolute, practically it is a question of strength and of varying
U.S. Supreme Court degree, and it is for a new sovereign to decide how far it will insist
upon theoretical relations of the subject to the former sovereign
Carino v. Insular Government, 212 U.S. 449 (1909) and how far it will recognize actual facts.

Carino v. Insular Government of the Philippine Islands Page 212 U. S. 450

No. 72 The acquisition of the Philippines was not for the purpose of
acquiring the lands occupied by the inhabitants, and under the
Argued January 13, 1909 Organic Act of July 1, 1902, c. 1369, 32 Stat. 691, providing that
property rights are to be administered for the benefit of the
Decided February 23, 1909 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
212 U.S. 449
Spanish law.
ERROR TO THE SUPREME COURT
The Organic Act of the Philippines made a bill of rights embodying
safeguards of the Constitution, and, like the Constitution, extends
OF THE PHILIPPINE ISLANDS those safeguards to all.
Syllabus Every presumption of ownership is in favor of one actually
occupying land for many years, and against the government which
Writ of error is the general, and appeal the exceptional, method of seeks to deprive him of it, for failure to comply with provisions of
bringing Cases to this Court. The latter method is in the main a subsequently enacted registration act.
confined to equity cases, and the former is proper to bring up a
judgment of the Supreme Court of the Philippine Islands affirming Title by prescription against the crown existed under Spanish law
a judgment of the Court of Land Registration dismissing an in force in the Philippine Islands prior to their acquisition by the
application for registration of land. United States, and one occupying land in the Province of Benguet
for more than fifty years before the Treaty of Paris is entitled to
Although a province may be excepted from the operation of Act the continued possession thereof.
No. 926 of 1903 of the Philippine Commission which provides for
7 Phil. 132 reversed. and although, in 1893-1894 and again in 1896-1897, he made
application for one under the royal decrees then in force, nothing
The facts are stated in the opinion. seems to have come of it, unless, perhaps, information that lands
in Benguet could not be conceded until those to be occupied for a
Page 212 U. S. 455 sanatorium, etc., had been designated -- a purpose that has been
carried out by the Philippine government and the United States.
MR. JUSTICE HOLMES delivered the opinion of the Court. In 1901, the plaintiff filed a petition, alleging ownership, under the
mortgage law, and the lands were registered to him, that process,
This was an application to the Philippine Court of Land however, establishing only a possessory title, it is said.
Registration for the registration of certain land. The application
was granted by the court on March 4, 1904. An appeal was taken Before we deal with the merits, we must dispose of a technical
to the Court of First Instance of the Province of Benguet on behalf point. The government has spent some energy in maintaining that
of the government of the Philippines, and also on behalf of the this case should have been brought up by appeal, and not by writ
United States, those governments having taken possession of the of error. We are of opinion, however, that the mode adopted was
property for public and military purposes. The Court of First right. The proceeding for registration is likened to bills in equity
Instance found the facts and dismissed the application upon to quiet title, but it is different in principle. It is a proceeding in
grounds of law. This judgment was affirmed by the supreme court, rem under a statute of the type of the Torrens Act, such as was
7 Phil. 132, and the case then was brought here by writ of error. discussed in Tyler v. Court of Registration, 175 Mass. 71. It is
nearer to law than to equity, and is an assertion of legal title; but
The material facts found are very few. The applicant and plaintiff we think it unnecessary to put it into either pigeon hole. A writ of
in error is an Igorot of the Province of Benguet, where the land error is the general method of bringing cases to this Court, an
lies. For more than fifty years before the Treaty of appeal the exception, confined to equity in the main. There is no
reason for not applying the general rule to this case. Ormsby v.
Page 212 U. S. 456 Webb, 134 U. S. 47, 134 U. S. 65; Campbell v. Porter, 162 U. S.
478; Metropolitan R. Co. v. District of Columbia, 195 U. S. 322.
Paris, April 11, 1899, as far back as the findings go, the plaintiff
Page 212 U. S. 457
and his ancestors had held the land as owners. His grandfather
had lived upon it, and had maintained fences sufficient for the
holding of cattle, according to the custom of the country, some of Another preliminary matter may as well be disposed of here. It is
the fences, it seems, having been of much earlier date. His father suggested that, even if the applicant have title, he cannot have it
had cultivated parts and had used parts for pasturing cattle, and registered, because the Philippine Commission's Act No. 926, of
he had used it for pasture in his turn. They all had been recognized 1903, excepts the Province of Benguet among others from its
as owners by the Igorots, and he had inherited or received the operation. But that act deals with the acquisition of new titles by
land from his father in accordance with Igorot custom. No homestead entries, purchase, etc., and the perfecting of titles
document of title, however, had issued from the Spanish Crown, begun under the Spanish law. The applicant's claim is that he now
owns the land, and is entitled to registration under the Philippine
Commission's Act No. 496, of 1902, which established a court for Philippines, the United States asserts that Spain had such power.
that purpose with jurisdiction "throughout the Philippine When theory is left on one side, sovereignty is a question of
Archipelago," § 2, and authorized in general terms applications to strength, and may vary in degree. How far a new sovereign shall
be made by persons claiming to own the legal estate in fee simple, insist upon the theoretical relation of the subjects to the head in
as the applicant does. He is entitled to registration if his claim of the past, and how far it shall recognize actual facts, are matters for
ownership can be maintained. it to decide.

We come, then, to the question on which the case was decided The Province of Benguet was inhabited by a tribe that the Solicitor
below -- namely, whether the plaintiff owns the land. The position General, in his argument, characterized as a savage tribe that
of the government, shortly stated, is that Spain assumed, asserted, never was brought under the civil or military government of the
and had title to all the land in the Philippines except so far as it Spanish Crown. It seems probable, if not certain, that the Spanish
saw fit to permit private titles to be acquired; that there was no officials would not have granted to anyone in that province the
prescription against the Crown, and that, if there was, a decree of registration to which formerly the plaintiff was entitled by the
June 25, 1880, required registration within a limited time to make Spanish laws, and which would have made his title beyond
the title good; that the plaintiff's land was not registered, and question good. Whatever may have been the technical position of
therefore became, if it was not always, public land; that the United Spain, it does not follow that, in the view of the United States, he
States succeeded to the title of Spain, and so that the plaintiff has had lost all rights and was a mere trespasser when the present
no rights that the Philippine government is bound to respect. government seized his land. The argument to that effect seems to
amount to a denial of native titles throughout an important part
If we suppose for the moment that the government's contention is of the island of Luzon, at least, for the want of ceremonies which
so far correct that the Crown of Spain in form asserted a title to the Spaniards would not have permitted and had not the power to
this land at the date of the Treaty of Paris, to which the United enforce.
States succeeded, it is not to be assumed without argument that
the plaintiff's case is at an end. It is true that Spain, in its earlier The acquisition of the Philippines was not like the settlement of
decrees, embodied the universal feudal theory that all lands were the white race in the United States. Whatever consideration may
held from the Crown, and perhaps the general attitude of have been shown to the North American Indians, the dominant
conquering nations toward people not recognized as entitled to purpose of the whites in America was to occupy the land. It is
the treatment accorded to those obvious that, however stated, the reason for our taking over the
Philippines was different. No one, we suppose, would deny that,
Page 212 U. S. 458 so far as consistent with paramount necessities, our first object in
the internal administration of the islands is to do justice to the
in the same zone of civilization with themselves. It is true also that, natives, not to exploit their country for private gain. By the
in legal theory, sovereignty is absolute, and that, as against foreign Organic Act of July 1, 1902, c. 1369, § 12, 32 Stat. 691, all the
nations, the United States may assert, as Spain asserted, absolute property and rights acquired there by the
power. But it does not follow that, as against the inhabitants of the
Page 212 U. S. 459
United States are to be administered "for the benefit of the administration of the property and rights acquired by the United
inhabitants thereof." It is reasonable to suppose that the attitude States such land and property as shall be designated by the
thus assumed by the United States with regard to what was President for military or other reservations,
unquestionably its own is also its attitude in deciding what it will
claim for its own. The same statute made a bill of rights, Page 212 U. S. 460
embodying the safeguards of the Constitution, and, like the
Constitution, extends those safeguards to all. It provides that as this land since has been. But there still remains the question
what property and rights the United States asserted itself to have
"no law shall be enacted in said islands which shall deprive any acquired.
person of life, liberty, or property without due process of law, or
deny to any person therein the equal protection of the laws." Whatever the law upon these points may be, and we mean to go
no further than the necessities of decision demand, every
§ 5. In the light of the declaration that we have quoted from § 12, presumption is and ought to be against the government in a case
it is hard to believe that the United States was ready to declare in like the present. It might, perhaps, be proper and sufficient to say
the next breath that "any person" did not embrace the inhabitants that when, as far back as testimony or memory goes, the land has
of Benguet, or that it meant by "property" only that which had been held by individuals under a claim of private ownership, it
become such by ceremonies of which presumably a large part of will be presumed to have been held in the same way from before
the inhabitants never had heard, and that it proposed to treat as the Spanish conquest, and never to have been public land.
public land what they, by native custom and by long association - Certainly, in a case like this, if there is doubt or ambiguity in the
- one of the profoundest factors in human thought -- regarded as Spanish law, we ought to give the applicant the benefit of the
their own. doubt. Whether justice to the natives and the import of the organic
act ought not to carry us beyond a subtle examination of ancient
It is true that, by § 14, the government of the Philippines is texts, or perhaps even beyond the attitude of Spanish law, humane
empowered to enact rules and prescribe terms for perfecting though it was, it is unnecessary to decide. If, in a tacit way, it was
titles to public lands where some, but not all, Spanish conditions assumed that the wild tribes of the Philippines were to be dealt
had been fulfilled, and to issue patents to natives for not more with as the power and inclination of the conqueror might dictate,
than sixteen hectares of public lands actually occupied by the Congress has not yet sanctioned the same course as the proper
native or his ancestors before August 13, 1898. But this section one "for the benefit of the inhabitants thereof."
perhaps might be satisfied if confined to cases where the
occupation was of land admitted to be public land, and had not If the applicant's case is to be tried by the law of Spain, we do not
continued for such a length of time and under such circumstances discover such clear proof that it was bad by that law as to satisfy
as to give rise to the understanding that the occupants were us that he does not own the land. To begin with, the older decrees
owners at that date. We hesitate to suppose that it was intended and laws cited by the counsel for the plaintiff in error seem to
to declare every native who had not a paper title a trespasser, and indicate pretty clearly that the natives were recognized as owning
to set the claims of all the wilder tribes afloat. It is true again that some lands, irrespective of any royal grant. In other words, Spain
there is excepted from the provision that we have quoted as to the
did not assume to convert all the native inhabitants of the been a grant by competent authority; but instantly descends to
Philippines into trespassers, or even into tenants at will. For fact by providing that, for all legal effects, those who have been in
instance, Book 4, Title 12, Law 14 of the Recopilacion de Leyes de possession for certain times shall be deemed owners. For
las Indias, cited for a contrary conclusion in Valenton v. cultivated land, twenty years, uninterrupted, is enough. For
Murciano, 3 Phil. 537, while it commands viceroys and others, uncultivated, thirty. Art. 5. So that, when this decree went into
when it seems proper, to call for the exhibition of grants, directs effect, the applicant's father was owner of the land by the very
them to confirm those who hold by good grants or justa terms of the decree. But, it is said, the object of this law was to
prescripcion. It is true that it require the adjustment or registration proceedings that it
described, and in that way to require everyone to get a document
Page 212 U. S. 461 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
begins by the characteristic assertion of feudal overlordship and regulations purport to have been made "for the adjustment of
the origin of all titles in the King or his predecessors. That was royal lands wrongfully occupied by private individuals." (We
theory and discourse. The fact was that titles were admitted to follow the translation in the government's brief.) It does not
exist that owed nothing to the powers of Spain beyond this appear that this land ever was royal land or wrongfully occupied.
recognition in their books. In Article 6, it is provided that

Prescription is mentioned again in the royal cedula of October 15, "interested parties not included within the two preceding
1754, cited in 3 Phil. 546:
Page 212 U. S. 462
"Where such possessors shall not be able to produce title deeds, it
shall be sufficient if they shall show that ancient possession, as a articles [the articles recognizing prescription of twenty and thirty
valid title by prescription." years] may legalize their possession, and thereby acquire the full
ownership of the said lands, by means of adjustment proceedings,
It may be that this means possession from before 1700; but, at all to be conducted in the following manner."
events, the principle is admitted. As prescription, even against
Crown lands, was recognized by the laws of Spain, we see no This seems, by its very terms, not to apply to those declared
sufficient reason for hesitating to admit that it was recognized in already to be owners by lapse of time. Article 8 provides for the
the Philippines in regard to lands over which Spain had only a case of parties not asking an adjustment of the lands of which they
paper sovereignty. are unlawfully enjoying the possession, within one year, and
threatens that the treasury "will reassert the ownership of the
The question comes, however, on the decree of June 25, 1880, for state over the lands," and will sell at auction such part as it does
the adjustment of royal lands wrongfully occupied by private not reserve. The applicant's possession was not unlawful, and no
individuals in the Philippine Islands. This begins with the usual attempt at any such proceedings against him or his father ever
theoretic assertion that, for private ownership, there must have was made. Finally, it should be noted that the natural construction
of the decree is confirmed by the report of the council of state. It will be perceived that the rights of the applicant under the
That report puts forward as a reason for the regulations that, in Spanish law present a problem not without difficulties for courts
view of the condition of almost all property in the Philippines, it is of a different legal tradition. We have deemed it proper on that
important to fix its status by general rules on the principle that the account to notice the possible effect of the change of sovereignty
lapse of a fixed period legalizes completely all possession, and the act of Congress establishing the fundamental principles
recommends in two articles twenty and thirty years, as adopted now to be observed. Upon a consideration of the whole case, we
in the decree, and then suggests that interested parties not are of opinion that law and justice require that the applicant
included in those articles may legalize their possession and should be granted what he seeks, and should not be deprived of
acquire ownership by adjustment at a certain price. what, by the practice and belief of those among whom he lived,
was his property, through a refined interpretation of an almost
It is true that the language of Articles 4 and 5 attributes title to forgotten law of Spain.
those "who may prove" possession for the necessary time, and we
do not overlook the argument that this means may prove in Judgment reversed.
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.

Page 212 U. S. 463

The effect of the proof, wherever made, was not to confer title, but
simply to establish it, as already conferred by the decree, if not by
earlier law. The royal decree of February 13, 1894, declaring
forfeited titles that were capable of adjustment under the decree
of 1880, for which adjustment had not been sought, should not be
construed as a confiscation, but as the withdrawal of a privilege.
As a matter of fact, the applicant never was disturbed. This same
decree is quoted by the Court of Land Registration for another #5
recognition of the common law prescription of thirty years as still
running against alienable Crown land.
Republic of the Philippines After trial, whereat evidence was introduced by both parties, the
SUPREME COURT Court of First Instance of Pampanga rendered judgment declaring
Manila the plaintiff entitled to the possession of the land, annulling the
sale made by the Director of Lands in favor of Angela Razon, and
EN BANC ordering the cancellation of the certificate of title issued to her,
with the costs against Angela Razon. From this judgment the
G.R. No. L-24066 December 9, 1925 Director of Lands took this appeal, assigning thereto the following
errors, to wit: (1) The holding that the judgment rendered in a
VALENTIN SUSI, plaintiff-appellee, prior case between the plaintiff and defendant Angela Razon on
vs. the parcel of land in question is controlling in this action; (2) the
ANGELA RAZON and THE DIRECTOR OF LANDS, defendants. holding that plaintiff is entitled to recover the possession of said
THE DIRECTOR OF LANDS, appellant. parcel of land; the annulment of the sale made by the Director of
Lands to Angela Razon; and the ordering that the certificate of title
Acting Attorney-General Reyes for appellant. issued by the register of deeds of the Province of Pampanga to
Monico R. Mercado for appellee. Angela Razon by virtue of said sale be cancelled; and (3) the denial
of the motion for new trial filed by the Director of Lands.
VILLA-REAL, J.:
The evidence shows that on December 18, 1880, Nemesio Pinlac
sold the land in question, then a fish pond, tho Apolonio Garcia and
This action was commenced in the Court of First Instance of
Pampanga by a complaint filed by Valentin Susi against Angela Basilio Mendoza for the sum of P12, reserving the right to
Razon and the Director of Lands, praying for judgment: (a) repurchase the same (Exhibit B). After having been in possession
Declaring plaintiff the sole and absolute owner of the parcel of thereof for about eight years, and the fish pond having been
destroyed, Apolonio Garcia and Basilio Mendoza, on September 5,
land described in the second paragraph of the complaint; (b)
annulling the sale made by the Director of Lands in favor of Angela 1899, sold it to Valentin Susi for the sum of P12, reserving the
right to repurchase it (Exhibit A). Before the execution of the deed
Razon, on the ground that the land is a private property; (c)
ordering the cancellation of the certificate of title issued to said of sale, Valentin Susi had already paid its price and sown
Angela Razon; and (d) sentencing the latter to pay plaintiff the "bacawan" on said land, availing himself of the firewood gathered
sum of P500 as damages, with the costs. thereon, with the proceeds of the sale of which he had paid the
price of the property. The possession and occupation of the land
in question, first, by Apolonio Garcia and Basilio Mendoza, and
For his answer to the complaint, the Director of Lands denied each
then by Valentin Susi has been open, continuous, adverse and
and every allegation contained therein and, as special defense,
public, without any interruption, except during the revolution, or
alleged that the land in question was a property of the
disturbance, except when Angela Razon, on September 13, 1913,
Government of the United States under the administration and
commenced an action in the Court of First Instance of Pampanga
control of the Philippine Islands before its sale to Angela Razon,
to recover the possession of said land (Exhibit C), wherein after
which was made in accordance with law.
considering the evidence introduced at the trial, the court
rendered judgment in favor of Valentin Susi and against Angela estimated when he began to possess and occupy it, the period of
Razon, dismissing the complaint (Exhibit E). Having failed in her time being so long that it is beyond the reach of memory. These
attempt to obtain possession of the land in question through the being the facts, the doctrine laid down by the Supreme Court of
court, Angela Razon applied to the Director of Lands for the the United States in the case of Cariño vs. Government of the
purchase thereof on August 15, 1914 (Exhibit C). Having learned Philippine Islands (212 U. S., 4491), is applicable here. In favor of
of said application, Valentin Susi filed and opposition thereto on Valentin Susi, there is, moreover, the presumption juris et de
December 6, 1915, asserting his possession of the land for twenty- jure established in paragraph (b) of section 45 of Act No. 2874,
five years (Exhibit P). After making the proper administrative amending Act No. 926, that all the necessary requirements for a
investigation, the Director of Lands overruled the opposition of grant by the Government were complied with, for he has been in
Valentin Susi and sold the land to Angela Razon. By virtue of said actual and physical possession, personally and through his
grant the register of deeds of Pampanga, on August 31, 1921, predecessors, of an agricultural land of the public domain openly,
issued the proper certificate of title to Angela Razon. Armed with continuously, exclusively and publicly since July 26, 1894, with a
said document, Angela Razon required Valentin Susi to vacate the right to a certificate of title to said land under the provisions of
land in question, and as he refused to do so, she brought and Chapter VIII of said Act. So that when Angela Razon applied for the
action for forcible entry and detainer in the justice of the peace grant in her favor, Valentin Susi had already acquired, by
court of Guagua, Pampanga, which was dismissed for lack of operation of law, not only a right to a grant, but a grant of the
jurisdiction, the case being one of title to real property (Exhibit F Government, for it is not necessary that certificate of title should
and M). Valentin Susi then brought this action. be issued in order that said grant may be sanctioned by the courts,
an application therefore is sufficient, under the provisions of
With these facts in view, we shall proceed to consider the section 47 of Act No. 2874. If by a legal fiction, Valentin Susi had
questions raised by the appellant in his assignments of acquired the land in question by a grant of the State, it had already
error.lawphi1.net ceased to be the public domain and had become private property,
at least by presumption, of Valentin Susi, beyond the control of the
It clearly appears from the evidence that Valentin Susi has been in Director of Lands. Consequently, in selling the land in question to
possession of the land in question openly, continuously, Angela Razon, the Director of Lands disposed of a land over which
adversely, and publicly, personally and through his predecessors, he had no longer any title or control, and the sale thus made was
since the year 1880, that is, for about forty-five years. While the void and of no effect, and Angela Razon did not thereby acquire
judgment of the Court of First Instance of Pampanga against any right.
Angela Razon in the forcible entry case does not affect the Director
of Lands, yet it is controlling as to Angela Razon and rebuts her The Director of Lands contends that the land in question being of
claim that she had been in possession thereof. When on August 15, the public domain, the plaintiff-appellee cannot maintain an
1914, Angela Razon applied for the purchase of said land, Valentin action to recover possession thereof.lawphi1.net
Susi had already been in possession thereof personally and
through his predecessors for thirty-four years. And if it is taken If, as above stated, the land, the possession of which is in dispute,
into account that Nemesio Pinlac had already made said land a fish had already become, by operation of law, private property of the
pond when he sold it on December 18, 1880, it can hardly be plaintiff, there lacking only the judicial sanction of his title,
Valentin Susi has the right to bring an action to recover possession EN BANC
thereof and hold it.
G.R. No. L-3793 February 19, 1908
For the foregoing, and no error having been found in the judgment
appealed from, the same is hereby affirmed in all its parts, without CIRILO MAPA, petitioner-appellee,
special pronouncement as to costs. So ordered. vs.
THE INSULAR GOVERNMENT, respondent-appellant.

Attorney-General Araneta for appellant.


Basilio R. Mapa for appellee.

WILLARD, J.:

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:

All persons who by themselves or their predecessors in


interest have been in the open, continuous exclusive, and
notorious possession and occupation of agricultural
public lands, as defined by said act of Congress of July first,
#6 nineteen hundred and two, under a bona fide claim of
ownership except as against the Government, for a period
of ten years next preceding the taking effect of this act,
Republic of the Philippines
except when prevented by war, or force majeure, shall be
SUPREME COURT
conclusively presumed to have performed all the
Manila
conditions essential to a Government grant and to have
received the same, and shall be entitled to a certificate of authorizes the sale of "unreserved nonmineral agricultural public
title to such land under the provisions of this chapter. 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
The only question submitted to the court below or to this court by accordance with the provisions of Chapter III of the said act, for
the Attorney-General is the question whether the land in section 22 relating to leases limits them to "nonmineral public
controversy is agricultural land within the meaning of the section lands, as defined by section eighteen and twenty of the act of
above quoted. The findings of the court below upon that point are Congress approved July first, nineteen hundred and two." It may
as follows: be noted in passing that there is perhaps some typographical or
other error in this reference to sections 18 and 20, because
From the evidence adduced it appears that the land in neither one of these sections mentions agricultural lands. The
question is lowland, and has been uninterruptedly, for Government could not give a free patent to this land to a native
more than twenty years, in the possession of the settler, in accordance with the provisions of Chapter IV, for that
petitioner and his ancestors as owners and the same has relates only to "agricultural public land, as defined by act of
been used during the said period, and up to the present, as Congress of July first, nineteen hundred and two."
fish ponds, nipa lands, and salt deposits. The witnesses
declare that the land is far from the sea, the town of Molo In fact, by virtue of the provisions of Act No. 926, the Government
being between the sea and the said land. could do nothing with this land except to lay out a town site
thereon in accordance with the provisions of Chapter V, for
The question is an important one because the phrase "agricultural section 36 relating to that matter, says nothing about agricultural
public lands" as defined by said act of Congress of July 1, is found land.
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 The question before us is not what is agricultural land, but what
phrase wherever it occurs in any part of that law. definition has been given to that phrase by the act of Congress. An
examination of that act will show that the only sections thereof
The claim of the Attorney-General seems to be that no lands can wherein can be found anything which could be called a definition
be called agricultural lands unless they are such by their nature. If of the phrase are sections 13 and 15. Those sections are as follows:
the contention of the Attorney-General is correct, and this land
because of its nature is not agricultural land, it is difficult to see SEC. 13. That the Government of the Philippine Islands,
how it could be disposed of or what the Government could do with subject to the provisions of this act and except as herein
it if it should be decided that the Government is the owner thereof. provided, shall classify according to its agricultural
It could not allow the land to be entered as a homestead, for character and productiveness, and shall immediately
Chapter I of Act No. 926 allows the entry of homesteads only upon make rules and regulations for the lease, sale, or other
"agricultural public lands" in the Philippine Islands, as defined by disposition of the public lands other than timber or
the act of Congress of July 1, 1902. It could not sell it in accordance mineral lands, but such rules and regulations shall not go
with the provisions of Chapter II of Act No. 926 for section 10 only into effect of have the force of law until they have received
the approval of the President, and when approved by the
President they shall be submitted by him to Congress at that there is a definition of that phrase in the act and that it means
the beginning of the next ensuing session thereof and land which in its nature is agricultural; and, third, that there is a
unless disapproved or amended by Congress at said definition in the act and that the phrase means all of the public
session they shall at the close of such period have the force lands acquired from Spain except those which are mineral or
and effect of law in the Philippine Islands: Provided, That timber lands. The court below adopted this view, and held that the
a single homestead entry shall not exceed sixteen hectares land, not being timber or mineral land, came within the definition
in extent. of agricultural land, and that therefore Section 54 paragraph 6, Act
No. 926 was applicable thereto.
SEC. 15. That the Government of the Philippine Islands is
hereby authorized and empowered on such terms as it 1. There are serious objections to holding that there is no
may prescribe, by general legislation, to provide for the definition in the act of the phrase "agricultural land." The
granting or sale and conveyance to actual occupants and Commission in enacting Act No. 926 expressly declared that such
settlers and other citizens of said Islands such parts and a definition could be found therein. The President approved this
portions of the public domain, other than timber and act and it might be said that Congress, by failing to reject or amend
mineral lands, of the United States in said Islands as it may it, tacitly approved it. Moreover, if it should be said that there is
deem wise, not exceeding sixteen hectares to any one no definition in the act of Congress of the phrase "agricultural
person and for the sale and conveyance of not more than land," we do not see how any effect could be given to the
one thousand and twenty-four hectares to any provisions of Act No. 916, to which we have referred. If the phrase
corporation or association of persons: Provided, that the is not defined in the act of Congress, then the lands upon which
grant or sale of such lands, whether the purchase price be homesteads can be granted can not be determined. Nor can it be
paid at once or in partial payments shall be conditioned known what land the Government has the right to sell in
upon actual and continued occupancy, improvement, and accordance with the provisions of Chapter II, nor what lands it can
cultivation of the premises sold for a period of not less lease in accordance with the provisions of Chapter III, nor the
than five years, during which time the purchaser or lands for which it can give free patents to native settlers in
grantee can not alienate or encumber said land or the title accordance with the provisions of Chapter IV, and it would seem
thereto; but such restriction shall not apply to transfers of to follow, necessarily, that none of those chapters could be put
rights and title of inheritance under the laws for the into force and that all that had up to this time been done by virtue
distribution of the estates of decedents. thereof would be void.

It is seen that neither one of these sections gives any express 2. The second way of disposing of the question is by saying that
definition of the phrase "agricultural land." In fact, in section 15 Congress has defined agricultural lands as those lands which are,
the word "agricultural" does not occur. as the Attorney-General says, by their nature agricultural. As has
been said before, the word "agricultural" does not occur in section
There seem to be only three possible ways of deciding this 15. Section 13 says that the Government "shall classify according
question. The first is to say that no definition of the phrase to its agricultural character and productiveness and shall
"agricultural land" can be found in the act of Congress; the second, immediately make rules and regulations for the lease, sale, or
other disposition of the public lands other than timber or mineral Congress, and therefore subject to homestead entry, to sale, or to
land." This is the same thing as saying that the Government shall lease in accordance with the provisions of Act No. 926, would be a
classify the public lands other than timber or mineral lands question that would finally have to be determined by the courts,
according to its agricultural character and productiveness; in unless there is some express provision of the law authorizing the
other words, that it shall classify all the public lands acquired from administrative officers to determine this question for themselves.
Spain, and that this classification shall be made according to the Section 2 of Act No. 926 relating to homesteads provides that the
agricultural character of the land and according to its Chief of The Bureau of Public Lands shall summarily determine
productiveness. whether the land described is prima facie under the law subject to
homestead settlement. Section 13, relating to the sale of public
One objection to adopting this view is that it is so vague and lands, provides simply that the Chief of the Bureau of Public Lands
indefinite that it would be very difficult to apply it in practice. shall determine from the certificate of the Chief of the Bureau of
What lands are agricultural in nature? The Attorney-General Forestry whether the land applied for is more valuable for
himself in his brief in this case says: agricultural than for timber purposes, but it says nothing about
his decisions as to whether it is or is not agricultural land in its
The most arid mountain and the poorest soil are nature. Section 26 relating to the lease of public lands provides
susceptible of cultivation by the hand of man. that the Chief of the Bureau of Public Lands shall determine from
the certificate of the Chief of the Bureau of Forestry whether the
The land in question in this case, which is used as a fishery, could land applied for is more valuable for agricultural than for timber
be filled up and any kind of crops raised thereon. Mineral and purposes and further summarily determine from available
timber lands are expressly excluded, but it would be difficult to records whether the land is or is not mineral and does not contain
say that any other particular tract of land was not agricultural in deposits of coal or salts. Section 34 relating to fee patents to native
nature. Such lands may be found within the limits of any city. settlers makes no provision for any determination by the Chief of
There is within the city of Manila, and within a thickly inhabited Bureau of Public Lands in regard to the character of the land
part thereof an experimental far. This land is in its nature applied for.
agricultural. Adjoining the Luneta, in the same city, is a large tract
of land, Camp Wallace, devoted to sports. The land surrounding After homesteads have been entered, lands, sold, and leases made
the city walls of Manila, between them and the Malecon Drive on by the administrative officers on the theory that the lands were
the west, the Luneta on the south, and Bagumbayan Drive on the agricultural lands by their nature, to leave the matter of their true
south and east, is of many hectares in extent and is in nature character open for subsequent action by the courts would be to
agricultural. The Luneta itself could at any time be devoted to the produce an evil that should if possible be avoided.
growing of crops.
3. We hold that there is to be found in the act of Congress a
The objection to adopting this construction on account of its definition of the phrase "agricultural public lands," and after a
uncertainty is emphasized when we consider that whether certain careful consideration of the question we are satisfied that the only
land was or was not agricultural land, as defined by the act of definition which exists in said act is the definition adopted by the
court below. Section 13 says that the Government shall "Make
rules and regulations for the lease, sale, or other disposition of the
public lands other than timber or mineral lands." To our minds,
that is the only definition that can be said to be given to
acricultural lands. In other words, that the phrase "agricultural
land" as used in Act No. 926 means those public lands acquired
from Spain which are not timber or mineral lands. As was said in
the case of Jones vs. The Insular Government (6 Phil Rep., 122,
133) where these same section of the act of Congress were under
discussion:

The meaning of these sections is not clear and it is difficult


to give to them a construction that would be entirely free
from objection.

But the construction we have adopted, to our minds, is less


objectionable than any other one that has been suggested.

There is nothing in this case of Jones vs. The Insular Government


which at all conflicts with the result here arrived at. The question
as to whether the lands there involved were or were not
agricultural lands within the meaning of the sections was neither
discussed nor decided. In fact, it appears from the decision that
those lands, which were in the Province of Benguet, were within
the strictest definition of the phrase "agricultural lands." It
appears that such lands had been cultivated for more than twelve
years. What that case decided was, not that the lands therein #7
involved and other lands referred to in the decision by way of
illustration were not agricultural lands but that the law there in Republic of the Philippines
question and the other laws mentioned therein were not rules and SUPREME COURT
regulations within the meaning of section 13. Manila

The judgment of the court below is affirmed, with the costs of this EN BANC
instance against the appellant. So ordered.
G.R. No. L-13298 November 19, 1918
CORNELIO RAMOS, petitioner-appellant, As to the law, the principal argument of the Solicitor-General is
vs. based on the provisions of the Spanish Mortgage Law and of the
THE DIRECTOR OF LANDS, objector-appellee. Royal Decree of February 13, 1894, commonly known as the
Maura Law. The Solicitor-General would emphasize that for land
Basilio Aromin for appellant. to come under the protective ægis of the Maura Law, it must have
Office of the Solicitor-General Paredes for appellee. been shown that the land was cultivated for six years previously,
and that it was not land which pertained to the "zonas forestales."
As proof that the land was, even as long ago as the years 1894 to
1896, forestal and not agricultural in nature is the fact that there
MALCOLM, J.: are yet found thereon trees from 50 to 80 years of age.

This is an appeal by the applicant and appellant from a judgment We do not stop to decide this contention, although it might be
of the Court of First Instance of Nueva Ecija, denying the possible, following the doctrine laid down by the United States
registration of the larger portion of parcel No. 1 (Exhibit A of the Supreme Court with reference to Mexican and Spanish grantes
petitioner), marked by the letters A, B, and C on the plan, Exhibit within the United States, where some recital is claimed to be false,
1, of the Government. to say that the possessory information, apparently having taken
cognizance of the requisites for title, should not now be disturbed.
One Restituto Romero y Ponce apparently gained possession of a (Hancock vs. McKinney [1851], 7 Tex., 192; Hornsby and
considerable tract of land located in the municipality of San Jose, Roland vs. United States [1869], 10 Wall., 224.) It is sufficient, as
Province of Nueva Ecija, in the year 1882. He took advantage of will later appear, merely to notice that the predecessor in interest
the Royal Decree of February 13, 1894, to obtain a possessory to the petitioner at least held this tract of land under color of title.
information title to the land, registered as such on February 8,
1896. Parcel No. 1, included within the limits of the possessory Subsection 6 of section 54, of Act No. 926, entitled The Public Land
information title of Restituto Romero, was sold in February, 1907, Law, as amended by Act No. 1908, reads as follows:
to Cornelio Ramos, the instant petitioner, and his wife Ambrosia
Salamanca. 6. All persons who by themselves or their predecessors
and interest have been in the open, continuous, exclusive,
Ramos instituted appropriate proceedings to have his title and notorious possession and occupation of agricultural
registered. Opposition was entered by the Director of Lands on public lands, as defined by said Act of Congress of July first,
the ground that Ramos had not acquired a good title from the nineteen hundred and two, under a bona fide claim of
Spanish government and by the Director of Forestry on the ownership except as against the Government, for a period
ground that the first parcel was forest land. The trial court agreed of ten years next preceding the twenty-sixth day of July,
with the objectors and excluded parcel No. 1 from registration. So nineteen hundred and four, except when prevented by
much for the facts. war or force majeure, shall be conclusively presumed to
have performed all the conditions essential to a
government grant and to have received the same, and
shall be entitled to a certificate of title to such land under
the provisions of this chapter.

There are two parts to the above quoted subsection which must
be discussed. The first relates to the open, continuous, exclusive,
and notorious possession and occupation of what, for present
purposes, can be conceded to be agricultural public land, under a
bona fide claim of ownership.

Actual possession of land consists in the manifestation of acts of


dominion over it of such a nature as a party would naturally
exercise over his own property. Relative to actuality of possession,
it is admitted that the petitioner has cultivated only about one
fourth of the entire tract. This is graphically portrayed by Exhibit
1 of the Government, following:

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


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

The doctrine of constructive possession indicates the answer. The


general rule is that the possession and cultivation of a portion of a
tract under claim of ownership of all is a constructive possession
of all, if the remainder is not in the adverse possession of another.
(Barr vs. Gratz's Heirs [1819], 4 Wheat., 213; Ellicott vs. Pearl
[1836], 10 Pet., 412; Smith vs. Gale [1892], 144 U. S., 509.) Of
course, there are a number of qualifications to the rule, one
particularly relating to the size of the tract in controversy with Act No. 926 means "those public lands acquired from Spain which
reference to the portion actually in possession of the claimant. It are not timber or mineral lands."
is here only necessary to apply the general rule.
The idea would appear to be to determine, by exclusion, if the land
The claimant has color of title; he acted in good faith; and he has is forestal or mineral in nature and, if not so found, to consider it
had open, peaceable, and notorious possession of a portion of the to be agricultural land. Here, again, Philippine law is not very
property, sufficient to apprise the community and the world that helpful. For instance, section 1820 of the Administrative Code of
the land was for his enjoyment. (See arts. 446, 448, Civil Code.) 1917 provides: "For the purposes of this chapter, 'public forest'
Possession in the eyes of the law does not mean that a man has to includes, except as otherwise specially indicated, all unreserved
have his feet on every square meter of ground before it can be said public land, including nipa and mangrove swamps, and all forest
that he is in possession. Ramos and his predecessor in interest reserves of whatever character." This definition of "public forest,"
fulfilled the requirements of the law on the supposition that he it will be noted, is merely "for the purposes of this chapter." A little
premises consisted of agricultural public land. further on, section 1827 provides: "Lands in public forests, not
including forest reserves, upon the certification of the Director of
The second division of the law requires consideration of the term Forestry that said lands are better adapted and more valuable for
"agricultural public land." The law affirms that the phrase is agricultural than for forest purposes and not required by the
denied by the Act of Congress of July 1st, 1902, known as the public interests to be kept under forest, shall be declared by the
Philippine bill. Turning to the Philippine Bill, we find in sections Department Head to be agricultural lands." With reference to the
13 to 18 thereof that three classes of land are mentioned. The first last section, there is no certification of the Director of Forestry in
is variously denominated "public land" or "public domain," the the record, as to whether this land is better adapted and more
second "mineral land," and the third "timber land." Section 18 of valuable for agricultural than for forest purposes.
the Act of Congress comes nearest to a precise definition, when it
makes the determination of whether the land is more valuable for The lexicographers define "forest" as "a large tract of land covered
agricultural or for forest uses the test of its character. with a natural growth of trees and underbrush; a large wood." The
authorities say that he word "forest" has a significant, not an
Although these sections of the Philippine Bill have come before insignificant meaning, and that it does not embrace land only
the courts on numerous occasions, what was said in the case of partly woodland. It is a tract of land covered with trees, usually of
Jones vs. Insular Government ([1906], 6 Phil., 122), is still true, considerable extent. (Higgins vs. Long Island R. Co. [1908], 114 N.
namely: "The meaning of these sections is not clear and it is Y. Supp., 262; People vs. Long Island R. Co. [1908], 110 N. Y. Supp.,
difficult to give to them a construction that will be entirely free 512.)
from objection." In the case which gave most serious
consideration to the subject (Mapa vs. Insular Government The foresters say that no legal definition of "forest" is practicable
[1908], 10 Phil., 175), it was found that there does exist in the Act or useful. B. H. Baden-Powell, in his work on Forest Law of India,
of Congress a definition of the phrase "agricultural public lands." states as follows:
It was said that the phrase "agricultural public lands" as used in
Every definition of a forest that can be framed for legal the passage of this act construed this term to mean forest
purposes will be found either to exclude some cases to lands in the sense of what was necessary to protect, for the
which the law ought to apply, or on the other hand, to public good; waste lands without a tree have been
include some with which the law ought not to interfere. It declared more suitable for forestry in many instances in
may be necessary, for example, to take under the law a the past. The term 'timber' as used in England and in the
tract of perfectly barren land which at present has neither United States in the past has been applied to wood suitable
trees, brushwood, nor grass on it, but which in the course for construction purposes but with the increase in
f time it is hoped will be "reboise;" but any definition wide civilization and the application of new methods every
enough to take in all such lands, would also take in much plant producing wood has some useful purpose and the
that was not wanted. On the other hand, the definition, if term timber lands is generally though of as synonymous
framed with reference to tree-growth, might (and indeed with forest lands or lands producing wood, or able to
would be almost sure to) include a garden, shrubbery, produce wood, if agricultural crops on the same land will
orchard, or vineyard, which it was not designed to deal not bring the financial return that timber will or if the
with. same land is needed for protection purposes.

B. E. Fernow, in his work on the Economics of Forestry, states as xxx xxx xxx
follows:
The laws in the United States recognize the necessity of
A forest in the sense in which we use the term, as an technical advice of duly appointed boards and leave it in
economic factor, is by no means a mere collection of trees, the hands of these boards to decide what lands are more
but an organic whole in which all parts, although valuable for forestry purposes or for agricultural
apparently heterogeneous, jumbled together by accident purposes.
as it were and apparently unrelated, bear a close relation
to each other and are as interdependent as any other In the Philippine Islands this policy is follows to as great
beings and conditions in nature. an extent as allowable under the law. In many cases, in the
opinion of the Bureau of Forestry, lands without a single
The Director of Forestry of the Philippine Islands has said: tree on them are considered as true forest land. For
instance, mountain sides which are too steep for
During the time of the passage of the Act of Congress of cultivation under ordinary practice and which, if
July 1, 1902, this question of forest and agricultural lands cultivated, under ordinary practice would destroy the big
was beginning to receive some attention and it is clearly natural resource of the soil, by washing, is considered by
shown in section 18 of the above mentioned Act; it leaves this bureau as forest land and in time would be reforested.
to the Bureau of Forestry the certification as to what lands Of course, examples exist in the Mountain Province where
are for agricultural or forest uses. Although the Act states steep hillsides have been terraced and intensive
timber lands, the Bureau has in its administration since cultivation practiced but even then the mountain people
are very careful not to destroy forests or other vegetative
cover which they from experience have found protect If cultivated, state crops being grown and approximate
their water supply. Certain chiefs have lodged protests number of hectares under cultivation. (Indicate on
with the Government against other tribes on the opposite sketch.)
side of the mountain cultivated by them, in order to
prevent other tribes from cutting timber or destroy cover For growth of what agricultural products is this land
guarding their source of water for irrigation. suitable?

Dr. M. S. Shaler, formerly Dean of the Lawrence Scientific State what portion of the tract is wooded, name of
School, remarked that if mankind could not devise and important timber species and estimate of stand in cubic
enforce ways dealing with the earth, which will preserve meters per hectare, diameter and percentage of each
this source of like "we must look forward to the time, species.
remote it may be, yet equally discernible, when out kin
having wasted its great inheritance will fade from the If the land is covered with timber, state whether there is
earth because of the ruin it has accomplished." public land suitable for agriculture in vicinity, which is not
covered with timber.
The method employed by the bureau of Forestry in
making inspection of lands, in order to determine whether Is this land more valuable for agricultural than for forest
they are more adapted for agricultural or forest purposes purposes? (State reasons in full.)
by a technical and duly trained personnel on the different
phases of the conservation of natural resources, is based Is this land included or adjoining any proposed or
upon a previously prepared set of questions in which the established forest reserve or communal forest?
different characters of the land under inspection are Description and ownership of improvements.
discussed, namely:
If the land is claimed under private ownership, give the
Slope of land: Level; moderate; steep; very steep. name of the claimant, his place of residence, and state
briefly (if necessary on a separate sheet) the grounds
Exposure: North; South; East; West. upon which he bases his claim.

Soil: Clay; sandy loam; sand; rocky; very rocky. When the inspection is made on a parcel of public land
which has been applied for, the corresponding certificate
Character of soil cover: Cultivated, grass land, brush land, is forwarded to the Director of Lands; if it is made on a
brush land and timber mixed, dense forest. privately claimed parcel for which the issuance of a title is
requested from the Court of Land Registration, and the
inspection shows the land to be more adapted for forest
purposes, then the Director of Forestry requests the
Attorney-General to file an opposition, sending him all protects Nature's wealth for future generations. Such is the wise
data collected during the inspection and offering him the stand of our Government as represented by the Director of
forest officer as a witness. Forestry who, with the Forester for the Government of the United
States, believes in "the control of nature's powers by man for his
It should be kept in mind that the lack of personnel of this own good." On the other hand, the presumption should be, in lieu
Bureau, the limited time intervening between the notice of contrary proof, that land is agricultural in nature. One very
for the trial on an expediente of land and the day of the apparent reason is that it is for the good of the Philippine Islands
trial, and the difficulties in communications as well as the to have the large public domain come under private ownership.
distance of the land in question greatly hinder the Such is the natural attitude of the sagacious citizen.
handling of this work.
If in this instance, we give judicial sanction to a private claim, let
In the case of lands claimed as private property, the it be noted that the Government, in the long run of cases, has its
Director of Forestry, by means of his delegate the remedy. Forest reserves of public land can be established as
examining officer, submits before the court all evidence provided by law. When the claim of the citizen and the claim of the
referring to the present forest condition of the land, so Government as to a particular piece of property collide, if the
that the court may compare them with the alleged right by Government desires to demonstrate that the land is in reality a
the claimant. Undoubtedly, when the claimant presents a forest, the Director of Forestry should submit to the court
title issued by the proper authority or evidence of his right convincing proof that the land is not more valuable for
to the land showing that he complied with the agricultural than for forest purposes. Great consideration, it may
requirements of the law, the forest certificate does not be stated, should, and undoubtedly will be, paid by the courts to
affect him in the least as such land should not be the opinion of the technical expert who speaks with authority on
considered as a part of the public domain; but when the forestry matters. But a mere formal opposition on the part of the
alleged right is merely that of possession, then the public Attorney-General for the Director of Forestry, unsupported by
or private character of the parcel is open to discussion and satisfactory evidence will not stop the courts from giving title to
this character should be established not simply on the the claimant.
alleged right of the claimant but on the sylvical condition
and soil characteristics of the land, and by comparison We hold that the petitioner and appellant has proved a title to the
between this area, or different previously occupied areas, entire tract of land for which he asked registration, under the
and those areas which still preserve their primitive provisions of subsection 6, of section 54, of Act No. 926, as
character. amended by Act No. 1908, with reference to the Philippine Bill and
the Royal Decree of February 13, 1894, and his possessory
Either way we look at this question we encounter difficulty. information.
Indubitably, there should be conservation of the natural resources
of the Philippines. The prodigality of the spendthrift who Judgment is reversed and the lower court shall register in the
squanders his substance for the pleasure of the fleeting moment name of the applicant the entire tract in parcel No. 1, as described
must be restrained for the less spectacular but surer policy which in plan Exhibit A, without special finding as to costs. So ordered.
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-19535 July 10, 1967

HEIRS OF PELAGIO ZARA; PIO, CLEMENTE, SERAFIA,


PORFIRIO and ESTEBAN, all surnamed MINDANAO; MARIA
and GLICERIA, both surnamed SEDARIA; DULCE CORDERO,
VICTORIA DE LOS REYES and JOSE GARCIA, applicants-
appellants,
vs.
DIRECTOR OF LANDS, DIRECTOR OF FORESTRY, Government
oppositor-appellees.
VICENTE V. DE VILLA, JR., and VICENTE S. DE VILLA, SR.,
private oppositors-appellees.

Jose L. Matias and H. A. Jambora for applicants-appellants.


Francisco Villanueva, Jr. and Gregorio L. Oquitania for private
oppositors-appellees.
Manuel Reyes Castro for oppositor-appellee Director of Forestry.

MAKALINTAL, J.:

Appeal from an order of the Court of First Instance of Batangas


(Lipa City) dismissing appellants' "application for registration of
the parcel of land consisting of 107 hectares, more or less, situated
in the barrio of Sampiro, Municipality of San Juan, Province of
Batangas, and designated in amended plan PSU-103696 as Lot A."

The proceedings in the court a quo are not disputed.


#8
On August 4, 1960 appellants filed an application for registration Case No. 26, L.R. Case No. 601 which was affirmed in the
of the land above described pursuant to the provisions of Act 496. appellate court in CA-G.R. No. 5847-R is concerned, there
They alleged that the land had been inherited by them from their is already "res-adjudicata" — in other words, the cause of
grandfather, Pelagio Zara, who in turn acquired the same under a action of the applicant is now barred by prior judgment;
Spanish grant known as "Composicion de Terrenos Realengos" and that this Court has no more jurisdiction over the
issued in 1888. Alternatively, should the provisions of the Land subject matter, the decision of the Court in said case
Registration Act be not applicable, applicants invoke the benefits having transferred to the Director of Lands.
of the provisions of Chapter VIII, Section 48, subsection (b) of C.A.
141 as amended, on the ground that they and their predecessor- On November 15, 1960 the De Villas (De Villa, Sr. was
in-interest had been in continuous and adverse possession of the subsequently included as oppositor) filed a motion to dismiss,
land in concept of owner for more than 30 years immediately invoking the same grounds alleged in its opposition, but
preceding the application. principally the fact that the land applied for had already been
declared public land by the judgment in the former registration
Oppositions were filed by the Director of Lands, the Director of case.
Forestry and by Vicente V. de Villa, Jr. The latter's opposition
recites: The trial court, over the objection of the applicants, granted the
motion to dismiss by order dated January 27, 1961, holding, inter
x x x that the parcel of land sought to be registered by the alia, that "once a parcel of land is declared or adjudged public land
applicants consisting of 107 hectares, more or less, was by the court having jurisdiction x x x it cannot be the subject
included in the area of the parcel of land applied for anymore of another land registration proceeding x x x (that) it is
registration by Vicente S. de Villa, Sr. in Civil Case No. 26, only the Director of Lands who can dispose of the same by sale, by
L.R. Case No. 601 in this Court, which was decided by this lease, by free patent or by homestead."
same Court through the then incumbent Judge, the
Honorable Juan P. Enriquez, on September 30, 1949; that In the present appeal from the order of dismissal neither the
the parcel sought to be registered by the applicants was Director of Lands nor the Director of Forestry filed a brief as
declared public land in said decision; that they (the appellee. The decisive issue posed by applicants-appellants is
oppositors Vicente V. de Villa, Jr. and Vicente S. de Villa, whether the 1949 judgment in the previous case, denying the
Sr.) have an interest over the land in question because for application of Vicente S. de Villa, Sr., and declaring the 107
a period more than sixty (60) years, the de Villas have hectares in question to be public land, precludes a subsequent
been in possession, and which possession, according to application by an alleged possessor for judicial confirmation of
them, was open continuous, notorious and under the title on the basis of continuous possession for at least thirty years,
claim of ownership; that the proceeding being in rem, the pursuant to Section 48, subsection (b) of the Public Land Law, C.A.
failure of the applicants to appear at the case No. 26, L.R. 141, as amended. This provision reads as follows:
Case No. 601 to prove their imperfect and incomplete title
over the property, barred them from raising the same
issue in another case; and that as far as the decision in Civil
The following-described citizens of the Philippines, in view of the fact that the judgment declared the land in question
occupying lands of the public domain or claiming to own to be public land. In any case, appellants' imperfect possessory
any such lands or an interest therein, but whose titles have title was not disturbed or foreclosed by such declaration, for
not been perfected or completed, may apply to the Court precisely the proceeding contemplated in the aforecited provision
of First Instance of the province where the land is located of Commonwealth Act 141 presupposes that the land is public.
for confirmation of their claims and the issuance of a The basis of the decree of judicial confirmation authorized therein
certificate of title therefor, under the Land Registration is not that the land is already privately owned and hence no longer
Act, to wit: part of the public domain, but rather that by reason of the
claimant's possession for thirty years he is conclusively presumed
xxx xxx xxx to have performed all the conditions essential to a Government
grant.
(b) Those who by themselves or through their
predecessors in interest have been in open, continuous, On the question of whether or not the private oppositors-
exclusive and notorious possession and occupation of appellees have the necessary personality to file an opposition, we
agricultural lands of the public domain, under a bona find in their favor, considering that they also claim to be in
fide claim of acquisition of ownership, for at least thirty possession of the land, and have furthermore applied for its
years immediately preceding the filing of the application purchase from the Bureau of Lands.1äwphï1.ñët
for confirmation of title, except when prevented by war or
force majeure. These shall be conclusively presumed to Wherefore, the order appealed from is set aside and the case is
have performed all the conditions essential to a remanded to the Court a quo for trial and judgment on the merits,
Government grant and shall be entitled to a certificate of with costs against the private oppositors-appellees.
title under the provisions of this Chapter.1äwphï1.ñët

The right to file an application under the foregoing provision has


been extended by Republic Act No. 2061 to December 31, 1968.

It should be noted that appellants' application is in the alternative:


for registration of their title of ownership under Act 496 or for
judicial confirmation of their "imperfect" title or claim based on
adverse and continuous possession for at least thirty years. It may
be that although they were not actual parties in that previous case
the judgment therein is a bar to their claim as owners under the
first alternative, since the proceeding was in rem, of which they
and their predecessor had constructive notice by publication.
Even so this is a defense that properly pertains to the Government,
AGENCIES INVOLVED IN A LIST, ANNEX "A" OF THIS PETITION, petitioners,
vs.
#9 THE SECRETARY OF THE DEPARTMENT OF ENVIRONMENT
AND NATURAL RESOURCES, THE REGIONAL TECHNICAL
Republic of the Philippines DIRECTOR FOR LANDS, LANDS MANAGEMENT BUREAU,
SUPREME COURT REGION VI, PROVINCIAL ENVIRONMENT AND NATURAL
Manila RESOURCES OFFICER, KALIBO, AKLAN, respondents.

EN BANC DECISION

G.R. No. 167707 October 8, 2008 REYES, R.T., J.:

THE SECRETARY OF THE DEPARTMENT OF ENVIRONMENT AT stake in these consolidated cases is the right of the present
AND NATURAL RESOURCES, THE REGIONAL EXECUTIVE occupants of Boracay Island to secure titles over their occupied
DIRECTOR, DENR-REGION VI, REGIONAL TECHNICAL lands.
DIRECTOR FOR LANDS, LANDS MANAGEMENT BUREAU,
REGION VI PROVINCIAL ENVIRONMENT AND NATURAL There are two consolidated petitions. The first is G.R. No. 167707,
RESOURCES OFFICER OF KALIBO, AKLAN, REGISTER OF a petition for review on certiorari of the Decision1 of the Court of
DEEDS, DIRECTOR OF LAND REGISTRATION AUTHORITY, Appeals (CA) affirming that2 of the Regional Trial Court (RTC) in
DEPARTMENT OF TOURISM SECRETARY, DIRECTOR OF Kalibo, Aklan, which granted the petition for declaratory relief
PHILIPPINE TOURISM AUTHORITY, petitioners, filed by respondents-claimants Mayor Jose Yap, et al. and ordered
vs. the survey of Boracay for titling purposes. The second is G.R. No.
MAYOR JOSE S. YAP, LIBERTAD TALAPIAN, MILA Y. 173775, a petition for prohibition, mandamus, and nullification of
SUMNDAD, and ANICETO YAP, in their behalf and in behalf of Proclamation No. 10645">[3] issued by President Gloria
all those similarly situated, respondents. Macapagal-Arroyo classifying Boracay into reserved forest and
agricultural land.

x------------------------------------------------- The Antecedents


-x
G.R. No. 167707

G.R. No. G.R. No. 173775 October 8, 2008 Boracay Island in the Municipality of Malay, Aklan, with its
powdery white sand beaches and warm crystalline waters, is
DR. ORLANDO SACAY and WILFREDO GELITO, joined by THE reputedly a premier Philippine tourist destination. The island is
LANDOWNERS OF BORACAY SIMILARLY SITUATED NAMED
also home to 12,003 inhabitants4 who live in the bone-shaped Respondents-claimants posited that Proclamation No. 1801 and
island’s three barangays.5 its implementing Circular did not place Boracay beyond the
commerce of man. Since the Island was classified as a tourist zone,
On April 14, 1976, the Department of Environment and Natural it was susceptible of private ownership. Under Section 48(b) of
Resources (DENR) approved the National Reservation Survey of Commonwealth Act (CA) No. 141, otherwise known as the Public
Boracay Land Act, they had the right to have the lots registered in their
names through judicial confirmation of imperfect titles.
Island,6 which identified several lots as being occupied or claimed
by named persons.7 The Republic, through the Office of the Solicitor General (OSG),
opposed the petition for declaratory relief. The OSG countered
On November 10, 1978, then President Ferdinand Marcos issued that Boracay Island was an unclassified land of the public
Proclamation No. 18018 declaring Boracay Island, among other domain. It formed part of the mass of lands classified as "public
islands, caves and peninsulas in the Philippines, as tourist zones forest," which was not available for disposition pursuant to
and marine reserves under the administration of the Philippine Section 3(a) of Presidential Decree (PD) No. 705 or the Revised
Tourism Authority (PTA). President Marcos later approved the Forestry Code,11 as amended.
issuance of PTA Circular 3-829 dated September 3, 1982, to
implement Proclamation No. 1801. The OSG maintained that respondents-claimants’ reliance on PD
No. 1801 and PTA Circular No. 3-82 was misplaced. Their right to
Claiming that Proclamation No. 1801 and PTA Circular No 3-82 judicial confirmation of title was governed by CA No. 141 and PD
precluded them from filing an application for judicial No. 705. Since Boracay Island had not been classified as alienable
confirmation of imperfect title or survey of land for titling and disposable, whatever possession they had cannot ripen into
purposes, respondents-claimants ownership.
Mayor Jose S. Yap, Jr., Libertad Talapian, Mila Y. Sumndad, and
Aniceto Yap filed a petition for declaratory relief with the RTC in During pre-trial, respondents-claimants and the OSG stipulated
Kalibo, Aklan. on the following facts: (1) respondents-claimants were presently
in possession of parcels of land in Boracay Island; (2) these
In their petition, respondents-claimants alleged that parcels of land were planted with coconut trees and other natural
Proclamation No. 1801 and PTA Circular No. 3-82 raised doubts growing trees; (3) the coconut trees had heights of more or less
on their right to secure titles over their occupied lands. They twenty (20) meters and were planted more or less fifty (50) years
declared that they themselves, or through their predecessors-in- ago; and (4) respondents-claimants declared the land they were
interest, had been in open, continuous, exclusive, and notorious occupying for tax purposes.12
possession and occupation in Boracay since June 12, 1945, or
earlier since time immemorial. They declared their lands for tax The parties also agreed that the principal issue for resolution was
purposes and paid realty taxes on them.10 purely legal: whether Proclamation No. 1801 posed any legal
hindrance or impediment to the titling of the lands in Boracay.
They decided to forego with the trial and to submit the case for Boracay and that only those forested areas in public lands were
resolution upon submission of their respective memoranda.13 declared as part of the forest reserve.22

The RTC took judicial notice14 that certain parcels of land in The OSG moved for reconsideration but its motion was
Boracay Island, more particularly Lots 1 and 30, Plan PSU-5344, denied.23 The Republic then appealed to the CA.
were covered by Original Certificate of Title No. 19502 (RO 2222)
in the name of the Heirs of Ciriaco S. Tirol. These lots were On December 9, 2004, the appellate court affirmed in toto the RTC
involved in Civil Case Nos. 5222 and 5262 filed before the RTC of decision, disposing as follows:
Kalibo, Aklan.15 The titles were issued on
WHEREFORE, in view of the foregoing premises, judgment is
August 7, 1933.16 hereby rendered by us DENYING the appeal filed in this case and
AFFIRMING the decision of the lower court.24
RTC and CA Dispositions
The CA held that respondents-claimants could not be prejudiced
On July 14, 1999, the RTC rendered a decision in favor of by a declaration that the lands they occupied since time
respondents-claimants, with a fallo reading: immemorial were part of a forest reserve.

WHEREFORE, in view of the foregoing, the Court declares that Again, the OSG sought reconsideration but it was similarly
Proclamation No. 1801 and PTA Circular No. 3-82 pose no legal denied.25 Hence, the present petition under Rule 45.
obstacle to the petitioners and those similarly situated to acquire
title to their lands in Boracay, in accordance with the applicable G.R. No. 173775
laws and in the manner prescribed therein; and to have their lands
surveyed and approved by respondent Regional Technical On May 22, 2006, during the pendency of G.R. No. 167707,
Director of Lands as the approved survey does not in itself President Gloria Macapagal-Arroyo issued Proclamation No.
constitute a title to the land. 106426 classifying Boracay Island into four hundred (400)
hectares of reserved forest land (protection purposes) and six
SO ORDERED.17 hundred twenty-eight and 96/100 (628.96) hectares of
agricultural land (alienable and disposable). The Proclamation
The RTC upheld respondents-claimants’ right to have their likewise provided for a fifteen-meter buffer zone on each side of
occupied lands titled in their name. It ruled that neither the centerline of roads and trails, reserved for right-of-way and
Proclamation No. 1801 nor PTA Circular No. 3-82 mentioned that which shall form part of the area reserved for forest land
lands in Boracay were inalienable or could not be the subject of protection purposes.
disposition.18 The Circular itself recognized private ownership of
lands.19 The trial court cited Sections 8720 and 5321 of the Public On August 10, 2006, petitioners-claimants Dr. Orlando
Land Act as basis for acknowledging private ownership of lands in Sacay,27 Wilfredo Gelito,28 and other landowners29 in Boracay
filed with this Court an original petition for prohibition, The OSG raises the lone issue of whether Proclamation No. 1801
mandamus, and nullification of Proclamation No. 1064.30 They and PTA Circular No. 3-82 pose any legal obstacle for respondents,
allege that the Proclamation infringed on their "prior vested and all those similarly situated, to acquire title to their occupied
rights" over portions of Boracay. They have been in continued lands in Boracay Island.34
possession of their respective lots in Boracay since time
immemorial. They have also invested billions of pesos in G.R. No. 173775
developing their lands and building internationally renowned
first class resorts on their lots.31 Petitioners-claimants hoist five (5) issues, namely:

Petitioners-claimants contended that there is no need for a I.


proclamation reclassifying Boracay into agricultural land. Being
classified as neither mineral nor timber land, the island AT THE TIME OF THE ESTABLISHED POSSESSION OF
is deemed agricultural pursuant to the Philippine Bill of 1902 and PETITIONERS IN CONCEPT OF OWNER OVER THEIR RESPECTIVE
Act No. 926, known as the first Public Land Act.32 Thus, their AREAS IN BORACAY, SINCE TIME IMMEMORIAL OR AT THE
possession in the concept of owner for the required period LATEST SINCE 30 YRS. PRIOR TO THE FILING OF THE PETITION
entitled them to judicial confirmation of imperfect title. FOR DECLARATORY RELIEF ON NOV. 19, 1997, WERE THE
AREAS OCCUPIED BY THEM PUBLIC AGRICULTURAL LANDS AS
Opposing the petition, the OSG argued that petitioners-claimants DEFINED BY LAWS THEN ON JUDICIAL CONFIRMATION OF
do not have a vested right over their occupied portions in the IMPERFECT TITLES OR PUBLIC FOREST AS DEFINED BY SEC. 3a,
island. Boracay is an unclassified public forest land pursuant to PD 705?
Section 3(a) of PD No. 705. Being public forest, the claimed
portions of the island are inalienable and cannot be the subject of II.
judicial confirmation of imperfect title. It is only the executive
department, not the courts, which has authority to reclassify lands HAVE PETITIONERS OCCUPANTS ACQUIRED PRIOR VESTED
of the public domain into alienable and disposable lands. There is RIGHT OF PRIVATE OWNERSHIP OVER THEIR OCCUPIED
a need for a positive government act in order to release the lots PORTIONS OF BORACAY LAND, DESPITE THE FACT THAT THEY
for disposition. HAVE NOT APPLIED YET FOR JUDICIAL CONFIRMATION OF
IMPERFECT TITLE?
On November 21, 2006, this Court ordered the consolidation of
the two petitions as they principally involve the same issues on III.
the land classification of Boracay Island.33
IS THE EXECUTIVE DECLARATION OF THEIR AREAS AS
Issues ALIENABLE AND DISPOSABLE UNDER SEC 6, CA 141 [AN]
INDISPENSABLE PRE-REQUISITE FOR PETITIONERS TO OBTAIN
G.R. No. 167707 TITLE UNDER THE TORRENS SYSTEM?
IV. Proclamation No. 106439 issued by President Gloria Macapagal-
Arroyo. We shall proceed to determine their rights to apply for
IS THE ISSUANCE OF PROCLAMATION 1064 ON MAY 22, 2006, judicial confirmation of imperfect title under these laws and
VIOLATIVE OF THE PRIOR VESTED RIGHTS TO PRIVATE executive acts.
OWNERSHIP OF PETITIONERS OVER THEIR LANDS IN BORACAY,
PROTECTED BY THE DUE PROCESS CLAUSE OF THE But first, a peek at the Regalian principle and the power of the
CONSTITUTION OR IS PROCLAMATION 1064 CONTRARY TO SEC. executive to reclassify lands of the public domain.
8, CA 141, OR SEC. 4(a) OF RA 6657.
The 1935 Constitution classified lands of the public domain into
V. agricultural, forest or timber.40 Meanwhile, the 1973 Constitution
provided the following divisions: agricultural, industrial or
CAN RESPONDENTS BE COMPELLED BY MANDAMUS TO ALLOW commercial, residential, resettlement, mineral, timber or forest
THE SURVEY AND TO APPROVE THE SURVEY PLANS FOR and grazing lands, and such other classes as may be provided by
PURPOSES OF THE APPLICATION FOR TITLING OF THE LANDS law,41 giving the government great leeway for
OF PETITIONERS IN BORACAY?35 (Underscoring supplied) classification.42 Then the 1987 Constitution reverted to the 1935
Constitution classification with one addition: national parks.43 Of
In capsule, the main issue is whether private claimants these, only agricultural lands may be alienated.44 Prior to
(respondents-claimants in G.R. No. 167707 and petitioners- Proclamation No. 1064 of May 22, 2006, Boracay Island
claimants in G.R. No. 173775) have a right to secure titles over had never been expressly and administratively classified under
their occupied portions in Boracay. The twin petitions pertain to any of these grand divisions. Boracay was an unclassified land of
their right, if any, to judicial confirmation of imperfect title under the public domain.
CA No. 141, as amended. They do not involve their right to secure
title under other pertinent laws. The Regalian Doctrine dictates that all lands of the public domain
belong to the State, that the State is the source of any asserted
Our Ruling right to ownership of land and charged with the conservation of
such patrimony.45 The doctrine has been consistently adopted
Regalian Doctrine and power of the executive under the 1935, 1973, and 1987 Constitutions.46

to reclassify lands of the public domain All lands not otherwise appearing to be clearly within private
ownership are presumed to belong to the State.47Thus, all lands
Private claimants rely on three (3) laws and executive acts in their that have not been acquired from the government, either by
bid for judicial confirmation of imperfect title, namely: (a) purchase or by grant, belong to the State as part of the inalienable
Philippine Bill of 190236 in relation to Act No. 926, later amended public domain.48 Necessarily, it is up to the State to determine if
and/or superseded by Act No. 2874 and CA No. 141;37 (b) lands of the public domain will be disposed of for private
Proclamation No. 180138 issued by then President Marcos; and (c) ownership. The government, as the agent of the state, is possessed
of the plenary power as the persona in law to determine who shall In sum, private ownership of land under the Spanish regime could
be the favored recipients of public lands, as well as under what only be founded on royal concessions which took various forms,
terms they may be granted such privilege, not excluding the namely: (1) titulo real or royal grant; (2) concesion especial or
placing of obstacles in the way of their exercise of what otherwise special grant; (3) composicion con el estado or adjustment title;
would be ordinary acts of ownership.49 (4) titulo de compra or title by purchase; and (5) informacion
posesoria or possessory information title.59>
Our present land law traces its roots to the Regalian Doctrine.
Upon the Spanish conquest of the Philippines, ownership of all The first law governing the disposition of public lands in the
lands, territories and possessions in the Philippines passed to the Philippines under American rule was embodied in the Philippine
Spanish Crown.50 The Regalian doctrine was first introduced in Bill of 1902.60 By this law, lands of the public domain in the
the Philippines through the Laws of the Indies and the Royal Philippine Islands were classified into three (3) grand divisions,
Cedulas, which laid the foundation that "all lands that were not to wit: agricultural, mineral, and timber or forest lands.61 The act
acquired from the Government, either by purchase or by grant, provided for, among others, the disposal of mineral lands by
belong to the public domain."51 means of absolute grant (freehold system) and by lease (leasehold
system).62 It also provided the definition by exclusion of
The Laws of the Indies was followed by the Ley Hipotecaria or the "agricultural public lands."63 Interpreting the meaning of
Mortgage Law of 1893. The Spanish Mortgage Law provided for "agricultural lands" under the Philippine Bill of 1902, the Court
the systematic registration of titles and deeds as well as declared in Mapa v. Insular Government:64
possessory claims.52
x x x In other words, that the phrase "agricultural land" as used
The Royal Decree of 1894 or the Maura Law53 partly amended the in Act No. 926 means those public lands acquired from Spain
Spanish Mortgage Law and the Laws of the Indies. It established which are not timber or mineral lands. x x x65 (Emphasis Ours)
possessory information as the method of legalizing possession of
vacant Crown land, under certain conditions which were set forth On February 1, 1903, the Philippine Legislature passed Act
in said decree.54 Under Section 393 of the Maura Law, No. 496, otherwise known as the Land Registration Act. The act
an informacion posesoria or possessory information title,55 when established a system of registration by which recorded title
duly inscribed in the Registry of Property, is converted into a title becomes absolute, indefeasible, and imprescriptible. This is
of ownership only after the lapse of twenty (20) years of known as the Torrens system.66
uninterrupted possession which must be actual, public, and
adverse,56 from the date of its inscription.57 However, possessory Concurrently, on October 7, 1903, the Philippine Commission
information title had to be perfected one year after the passed Act No. 926, which was the first Public Land Act. The Act
promulgation of the Maura Law, or until April 17, 1895. introduced the homestead system and made provisions for
Otherwise, the lands would revert to the State.58 judicial and administrative confirmation of imperfect titles and
for the sale or lease of public lands. It permitted corporations
regardless of the nationality of persons owning the controlling
stock to lease or purchase lands of the public domain.67 Under the grants should apply for registration of their lands under Act No.
Act, open, continuous, exclusive, and notorious possession and 496 within six (6) months from the effectivity of the decree on
occupation of agricultural lands for the next ten (10) years February 16, 1976. Thereafter, the recording of all unregistered
preceding July 26, 1904 was sufficient for judicial confirmation of lands77 shall be governed by Section 194 of the Revised
imperfect title.68 Administrative Code, as amended by Act No. 3344.

On November 29, 1919, Act No. 926 was superseded by Act On June 11, 1978, Act No. 496 was amended and updated by PD
No. 2874, otherwise known as the second Public Land Act. This No. 1529, known as the Property Registration Decree. It was
new, more comprehensive law limited the exploitation of enacted to codify the various laws relative to registration of
agricultural lands to Filipinos and Americans and citizens of other property.78 It governs registration of lands under the Torrens
countries which gave Filipinos the same privileges. For judicial system as well as unregistered lands, including chattel
confirmation of title, possession and occupation en concepto mortgages.79
dueño since time immemorial, or since July 26, 1894, was
required.69 A positive act declaring land as alienable and disposable is
required. In keeping with the presumption of State ownership,
After the passage of the 1935 Constitution, CA No. 141 amended the Court has time and again emphasized that there must be a
Act No. 2874 on December 1, 1936. To this day, CA No. 141, as positive act of the government, such as an official
amended, remains as the existing general law governing the proclamation,80 declassifying inalienable public land into
classification and disposition of lands of the public domain other disposable land for agricultural or other purposes.81 In fact,
than timber and mineral lands,70 and privately owned lands which Section 8 of CA No. 141 limits alienable or disposable lands only
reverted to the State.71 to those lands which have been "officially delimited and
classified."82
Section 48(b) of CA No. 141 retained the requirement under Act
No. 2874 of possession and occupation of lands of the public The burden of proof in overcoming the presumption of State
domain since time immemorial or since July 26, 1894. However, ownership of the lands of the public domain is on the person
this provision was superseded by Republic Act (RA) No. applying for registration (or claiming ownership), who must
1942,72 which provided for a simple thirty-year prescriptive prove that the land subject of the application is alienable or
period for judicial confirmation of imperfect title. The provision disposable.83 To overcome this presumption, incontrovertible
was last amended by PD No. 1073,73 which now provides for evidence must be established that the land subject of the
possession and occupation of the land applied for since June 12, application (or claim) is alienable or disposable.84 There must still
1945, or earlier.74 be a positive act declaring land of the public domain as alienable
and disposable. To prove that the land subject of an application
The issuance of PD No. 89275 on February 16, 1976 discontinued for registration is alienable, the applicant must establish the
the use of Spanish titles as evidence in land registration existence of a positive act of the government such as a presidential
proceedings.76 Under the decree, all holders of Spanish titles or proclamation or an executive order; an administrative action;
investigation reports of Bureau of Lands investigators; and a
legislative act or a statute.85 The applicant may also secure a Ankron and De Aldecoa were decided at a time when the President
certification from the government that the land claimed to have of the Philippines had no power to classify lands of the public
been possessed for the required number of years is alienable and domain into mineral, timber, and agricultural. At that time, the
disposable.86 courts were free to make corresponding classifications in
justiciable cases, or were vested with implicit power to do so,
In the case at bar, no such proclamation, executive order, depending upon the preponderance of the evidence.91 This was
administrative action, report, statute, or certification was the Court’s ruling in Heirs of the Late Spouses Pedro S. Palanca and
presented to the Court. The records are bereft of evidence Soterranea Rafols Vda. De Palanca v. Republic,92 in which it stated,
showing that, prior to 2006, the portions of Boracay occupied by through Justice Adolfo Azcuna, viz.:
private claimants were subject of a government proclamation that
the land is alienable and disposable. Absent such well-nigh x x x Petitioners furthermore insist that a particular land need not
incontrovertible evidence, the Court cannot accept the be formally released by an act of the Executive before it can be
submission that lands occupied by private claimants were already deemed open to private ownership, citing the cases of Ramos v.
open to disposition before 2006. Matters of land classification or Director of Lands and Ankron v. Government of the Philippine
reclassification cannot be assumed. They call for proof.87 Islands.

Ankron and De Aldecoa did not make the whole of Boracay xxxx
Island, or portions of it, agricultural lands. Private claimants
posit that Boracay was already an agricultural land pursuant to Petitioner’s reliance upon Ramos v. Director of Lands and Ankron
the old cases Ankron v. Government of the Philippine Islands v. Government is misplaced. These cases were decided under the
(1919)88 and De Aldecoa v. The Insular Government (1909).89 These Philippine Bill of 1902 and the first Public Land Act No. 926
cases were decided under the provisions of the Philippine Bill of enacted by the Philippine Commission on October 7, 1926, under
1902 and Act No. 926. There is a statement in these old cases that which there was no legal provision vesting in the Chief Executive
"in the absence of evidence to the contrary, that in each case the or President of the Philippines the power to classify lands of the
lands are agricultural lands until the contrary is shown."90 public domain into mineral, timber and agricultural so that the
courts then were free to make corresponding classifications in
Private claimants’ reliance on Ankron and De Aldecoa justiciable cases, or were vested with implicit power to do so,
is misplaced. These cases did not have the effect of converting the depending upon the preponderance of the evidence.93
whole of Boracay Island or portions of it into agricultural lands. It
should be stressed that the Philippine Bill of 1902 and Act No. 926 To aid the courts in resolving land registration cases under Act No.
merely provided the manner through which land registration 926, it was then necessary to devise a presumption on land
courts would classify lands of the public domain. Whether the land classification. Thus evolved the dictum in Ankron that "the courts
would be classified as timber, mineral, or agricultural depended have a right to presume, in the absence of evidence to the
on proof presented in each case. contrary, that in each case the lands are agricultural lands until
the contrary is shown."94
But We cannot unduly expand the presumption in Ankron and De mere fact that a tract of land has trees upon it or has mineral
Aldecoa to an argument that all lands of the public domain had within it is not of itself sufficient to declare that one is forestry
been automatically reclassified as disposable and alienable land and the other, mineral land. There must be some proof of the
agricultural lands. By no stretch of imagination did the extent and present or future value of the forestry and of the
presumption convert all lands of the public domain into minerals. While, as we have just said, many definitions have been
agricultural lands. given for "agriculture," "forestry," and "mineral" lands, and that in
each case it is a question of fact, we think it is safe to say that in
If We accept the position of private claimants, the Philippine Bill order to be forestry or mineral land the proof must show that it is
of 1902 and Act No. 926 would have automatically made all lands more valuable for the forestry or the mineral which it contains
in the Philippines, except those already classified as timber or than it is for agricultural purposes. (Sec. 7, Act No. 1148.) It is not
mineral land, alienable and disposable lands. That would take sufficient to show that there exists some trees upon the land or
these lands out of State ownership and worse, would be utterly that it bears some mineral. Land may be classified as forestry or
inconsistent with and totally repugnant to the long-entrenched mineral today, and, by reason of the exhaustion of the timber or
Regalian doctrine. mineral, be classified as agricultural land tomorrow. And vice-
versa, by reason of the rapid growth of timber or the discovery of
The presumption in Ankron and De Aldecoa attaches only to land valuable minerals, lands classified as agricultural today may be
registration cases brought under the provisions of Act No. 926, or differently classified tomorrow. Each case must be decided
more specifically those cases dealing with judicial and upon the proof in that particular case, having regard for its
administrative confirmation of imperfect titles. The presumption present or future value for one or the other purposes. We
applies to an applicant for judicial or administrative conformation believe, however, considering the fact that it is a matter of public
of imperfect title under Act No. 926. It certainly cannot apply to knowledge that a majority of the lands in the Philippine Islands
landowners, such as private claimants or their predecessors-in- are agricultural lands that the courts have a right to presume, in
interest, who failed to avail themselves of the benefits of Act No. the absence of evidence to the contrary, that in each case the lands
926. As to them, their land remained unclassified and, by virtue of are agricultural lands until the contrary is shown. Whatever the
the Regalian doctrine, continued to be owned by the State. land involved in a particular land registration case is forestry
or mineral land must, therefore, be a matter of proof. Its
In any case, the assumption in Ankron and De Aldecoa was not superior value for one purpose or the other is a question of
absolute. Land classification was, in the end, dependent on proof. fact to be settled by the proof in each particular case. The fact
If there was proof that the land was better suited for non- that the land is a manglar [mangrove swamp] is not sufficient for
agricultural uses, the courts could adjudge it as a mineral or the courts to decide whether it is agricultural, forestry, or mineral
timber land despite the presumption. In Ankron, this Court stated: land. It may perchance belong to one or the other of said classes
of land. The Government, in the first instance, under the
In the case of Jocson vs. Director of Forestry (supra), the Attorney- provisions of Act No. 1148, may, by reservation, decide for itself
General admitted in effect that whether the particular land in what portions of public land shall be considered forestry land,
question belongs to one class or another is a question of fact. The 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 Government,102 and Ankron v. Government of the Philippine
have intervened, the Government, by virtue of the terms of said Islands.103
Act (No. 1148), may decide for itself what portions of the "public
domain" shall be set aside and reserved as forestry or mineral Krivenko, however, is not controlling here because it involved a
land. (Ramos vs. Director of Lands, 39 Phil. 175; Jocson vs. Director totally different issue. The pertinent issue in Krivenko was
of Forestry, supra)95 (Emphasis ours) whether residential lots were included in the general
classification of agricultural lands; and if so, whether an alien
Since 1919, courts were no longer free to determine the could acquire a residential lot. This Court ruled that as an
classification of lands from the facts of each case, except those that alien, Krivenko was prohibited by the 1935 Constitution104 from
have already became private lands.96 Act No. 2874, promulgated acquiring agricultural land, which included residential lots. Here,
in 1919 and reproduced in Section 6 of CA No. 141, gave the the issue is whether unclassified lands of the public domain are
Executive Department, through the President, automatically deemed agricultural.
the exclusive prerogative to classify or reclassify public lands
into alienable or disposable, mineral or forest.96-a Since then, Notably, the definition of "agricultural public lands" mentioned
courts no longer had the authority, whether express or implied, to in Krivenko relied on the old cases decided prior to the enactment
determine the classification of lands of the public domain.97 of Act No. 2874, including Ankron and De Aldecoa.105 As We have
already stated, those cases cannot apply here, since they were
Here, private claimants, unlike the Heirs of Ciriaco Tirol who were decided when the Executive did not have the authority to classify
issued their title in 1933,98 did not present a justiciable case for lands as agricultural, timber, or mineral.
determination by the land registration court of the property’s land
classification. Simply put, there was no opportunity for the courts Private claimants’ continued possession under Act No. 926
then to resolve if the land the Boracay occupants are now claiming does not create a presumption that the land is
were agricultural lands. When Act No. 926 was supplanted by Act alienable. Private claimants also contend that their continued
No. 2874 in 1919, without an application for judicial confirmation possession of portions of Boracay Island for the requisite period
having been filed by private claimants or their predecessors-in- of ten (10) years under Act No. 926106 ipso facto converted the
interest, the courts were no longer authorized to determine the island into private ownership. Hence, they may apply for a title in
property’s land classification. Hence, private claimants cannot their name.
bank on Act No. 926.
A similar argument was squarely rejected by the Court in Collado
We note that the RTC decision99 in G.R. No. 167707 v. Court of Appeals.107 Collado, citing the separate opinion of now
mentioned Krivenko v. Register of Deeds of Manila,100which was Chief Justice Reynato S. Puno in Cruz v. Secretary of Environment
decided in 1947 when CA No. 141, vesting the Executive with the and Natural Resources,107-a ruled:
sole power to classify lands of the public domain was already in
effect. Krivenko cited the old cases Mapa v. Insular "Act No. 926, the first Public Land Act, was passed in pursuance of
Government, De101 Aldecoa v. The Insular the provisions of the Philippine Bill of 1902. The law governed the
disposition of lands of the public domain. It prescribed rules and of classification for the determination of which lands are needed
regulations for the homesteading, selling and leasing of portions for forest purpose and which are not." Applying PD No. 705, all
of the public domain of the Philippine Islands, and prescribed the unclassified lands, including those in Boracay Island, are ipso
terms and conditions to enable persons to perfect their titles to facto considered public forests. PD No. 705, however, respects
public lands in the Islands. It also provided for the "issuance of titles already existing prior to its effectivity.
patents to certain native settlers upon public lands," for the
establishment of town sites and sale of lots therein, for the The Court notes that the classification of Boracay as a forest land
completion of imperfect titles, and for the cancellation or under PD No. 705 may seem to be out of touch with the present
confirmation of Spanish concessions and grants in the Islands." In realities in the island. Boracay, no doubt, has been partly stripped
short, the Public Land Act operated on the assumption that title to of its forest cover to pave the way for commercial developments.
public lands in the Philippine Islands remained in the government; As a premier tourist destination for local and foreign tourists,
and that the government’s title to public land sprung from the Boracay appears more of a commercial island resort, rather than
Treaty of Paris and other subsequent treaties between Spain and the a forest land.
United States. The term "public land" referred to all lands of the
public domain whose title still remained in the government and Nevertheless, that the occupants of Boracay have built multi-
are thrown open to private appropriation and settlement, and million peso beach resorts on the island;111 that the island has
excluded the patrimonial property of the government and the already been stripped of its forest cover; or that the
friar lands." implementation of Proclamation No. 1064 will destroy the
island’s tourism industry, do not negate its character as public
Thus, it is plain error for petitioners to argue that under the forest.
Philippine Bill of 1902 and Public Land Act No. 926, mere
possession by private individuals of lands creates the legal Forests, in the context of both the Public Land Act and the
presumption that the lands are alienable and Constitution112 classifying lands of the public domain into
disposable.108 (Emphasis Ours) "agricultural, forest or timber, mineral lands, and national parks,"
do not necessarily refer to large tracts of wooded land or expanses
Except for lands already covered by existing titles, Boracay was covered by dense growths of trees and underbrushes.113 The
an unclassified land of the public domain prior to discussion in Heirs of Amunategui v. Director of Forestry114 is
Proclamation No. 1064. Such unclassified lands are considered particularly instructive:
public forest under PD No. 705. The DENR109 and the National
Mapping and Resource Information Authority110 certify that A forested area classified as forest land of the public domain does
Boracay Island is an unclassified land of the public domain. not lose such classification simply because loggers or settlers may
have stripped it of its forest cover. Parcels of land classified as
PD No. 705 issued by President Marcos categorized all forest land may actually be covered with grass or planted to crops
unclassified lands of the public domain as public forest. Section by kaingin cultivators or other farmers. "Forest lands" do not have
3(a) of PD No. 705 defines a public forest as "a mass of lands of the to be on mountains or in out of the way places. Swampy areas
public domain which has not been the subject of the present system
covered by mangrove trees, nipa palms, and other trees growing classify the entire island as agricultural. Notably, Circular No. 3-82
in brackish or sea water may also be classified as forest land. The makes reference not only to private lands and areas but also to
classification is descriptive of its legal nature or status and public forested lands. Rule VIII, Section 3 provides:
does not have to be descriptive of what the land actually looks
like. Unless and until the land classified as "forest" is released in No trees in forested private lands may be cut without prior
an official proclamation to that effect so that it may form part of authority from the PTA. All forested areas in public lands are
the disposable agricultural lands of the public domain, the rules declared forest reserves. (Emphasis supplied)
on confirmation of imperfect title do not apply.115(Emphasis
supplied) Clearly, the reference in the Circular to both private and public
lands merely recognizes that the island can be classified by the
There is a big difference between "forest" as defined in a Executive department pursuant to its powers under CA No. 141.
dictionary and "forest or timber land" as a classification of lands In fact, Section 5 of the Circular recognizes the then Bureau of
of the public domain as appearing in our statutes. One is Forest Development’s authority to declare areas in the island as
descriptive of what appears on the land while the other is a legal alienable and disposable when it provides:
status, a classification for legal purposes.116 At any rate, the Court
is tasked to determine the legal status of Boracay Island, and not Subsistence farming, in areas declared as alienable and disposable
look into its physical layout. Hence, even if its forest cover has by the Bureau of Forest Development.
been replaced by beach resorts, restaurants and other commercial
establishments, it has not been automatically converted from Therefore, Proclamation No. 1801 cannot be deemed the positive
public forest to alienable agricultural land. act needed to classify Boracay Island as alienable and disposable
land. If President Marcos intended to classify the island as
Private claimants cannot rely on Proclamation No. 1801 as alienable and disposable or forest, or both, he would have
basis for judicial confirmation of imperfect title. The identified the specific limits of each, as President Arroyo did in
proclamation did not convert Boracay into an agricultural Proclamation No. 1064. This was not done in Proclamation No.
land. However, private claimants argue that Proclamation No. 1801.
1801 issued by then President Marcos in 1978 entitles them to
judicial confirmation of imperfect title. The Proclamation The Whereas clauses of Proclamation No. 1801 also explain the
classified Boracay, among other islands, as a tourist zone. Private rationale behind the declaration of Boracay Island, together with
claimants assert that, as a tourist spot, the island is susceptible of other islands, caves and peninsulas in the Philippines, as a tourist
private ownership. zone and marine reserve to be administered by the PTA – to
ensure the concentrated efforts of the public and private sectors
Proclamation No. 1801 or PTA Circular No. 3-82 did not convert in the development of the areas’ tourism potential with due
the whole of Boracay into an agricultural land. There is nothing in regard for ecological balance in the marine environment. Simply
the law or the Circular which made Boracay Island an agricultural put, the proclamation is aimed at administering the islands
land. The reference in Circular No. 3-82 to "private lands"117 and
"areas declared as alienable and disposable"118 does not by itself
for tourism and ecological purposes. It does not address the Proclamation likewise provides for a 15-meter buffer zone on
areas’ alienability.119 each side of the center line of roads and trails, which are reserved
for right of way and which shall form part of the area reserved for
More importantly, Proclamation No. 1801 covers not only forest land protection purposes.
Boracay Island, but sixty-four (64) other islands, coves, and
peninsulas in the Philippines, such as Fortune and Verde Islands Contrary to private claimants’ argument, there was nothing
in Batangas, Port Galera in Oriental Mindoro, Panglao and invalid or irregular, much less unconstitutional, about the
Balicasag Islands in Bohol, Coron Island, Puerto Princesa and classification of Boracay Island made by the President through
surrounding areas in Palawan, Camiguin Island in Cagayan de Oro, Proclamation No. 1064. It was within her authority to make such
and Misamis Oriental, to name a few. If the designation of Boracay classification, subject to existing vested rights.
Island as tourist zone makes it alienable and disposable by virtue
of Proclamation No. 1801, all the other areas mentioned would Proclamation No. 1064 does not violate the Comprehensive
likewise be declared wide open for private disposition. That could Agrarian Reform Law. Private claimants further assert that
not have been, and is clearly beyond, the intent of the Proclamation No. 1064 violates the provision of the
proclamation. Comprehensive Agrarian Reform Law (CARL) or RA No. 6657
barring conversion of public forests into agricultural lands. They
It was Proclamation No. 1064 of 2006 which positively claim that since Boracay is a public forest under PD No. 705,
declared part of Boracay as alienable and opened the same to President Arroyo can no longer convert it into an agricultural land
private ownership. Sections 6 and 7 of CA No. 141120 provide that without running afoul of Section 4(a) of RA No. 6657, thus:
it is only the President, upon the recommendation of the proper
department head, who has the authority to classify the lands of the SEC. 4. Scope. – The Comprehensive Agrarian Reform Law of 1988
public domain into alienable or disposable, timber and mineral shall cover, regardless of tenurial arrangement and commodity
lands.121 produced, all public and private agricultural lands as provided in
Proclamation No. 131 and Executive Order No. 229, including
In issuing Proclamation No. 1064, President Gloria Macapagal- other lands of the public domain suitable for agriculture.
Arroyo merely exercised the authority granted to her to classify
lands of the public domain, presumably subject to existing vested More specifically, the following lands are covered by the
rights. Classification of public lands is the exclusive prerogative of Comprehensive Agrarian Reform Program:
the Executive Department, through the Office of the President.
Courts have no authority to do so.122 Absent such classification, (a) All alienable and disposable lands of the public domain
the land remains unclassified until released and rendered open to devoted to or suitable for agriculture. No reclassification of
disposition.123 forest or mineral lands to agricultural lands shall be undertaken
after the approval of this Act until Congress, taking into account
Proclamation No. 1064 classifies Boracay into 400 hectares of ecological, developmental and equity considerations, shall have
reserved forest land and 628.96 hectares of agricultural land. The determined by law, the specific limits of the public domain.
That Boracay Island was classified as a public forest under PD No. does not, and cannot, apply to those lands of the public domain,
705 did not bar the Executive from later converting it into denominated as "public forest" under the Revised Forestry Code,
agricultural land. Boracay Island still remained an unclassified which have not been previously determined, or classified, as
land of the public domain despite PD No. 705. needed for forest purposes in accordance with the provisions of
the Revised Forestry Code.127
In Heirs of the Late Spouses Pedro S. Palanca and Soterranea Rafols
v. Republic,124 the Court stated that unclassified lands are public Private claimants are not entitled to apply for judicial
forests. confirmation of imperfect title under CA No. 141. Neither do
they have vested rights over the occupied lands under the said
While it is true that the land classification map does not law. There are two requisites for judicial confirmation of
categorically state that the islands are public forests, the fact imperfect or incomplete title under CA No. 141, namely: (1) open,
that they were unclassified lands leads to the same result. In continuous, exclusive, and notorious possession and occupation
the absence of the classification as mineral or timber land, the land of the subject land by himself or through his predecessors-in-
remains unclassified land until released and rendered open to interest under a bona fide claim of ownership since time
disposition.125 (Emphasis supplied) immemorial or from June 12, 1945; and (2) the classification of
the land as alienable and disposable land of the public domain.128
Moreover, the prohibition under the CARL applies only to a
"reclassification" of land. If the land had never been previously As discussed, the Philippine Bill of 1902, Act No. 926, and
classified, as in the case of Boracay, there can be no prohibited Proclamation No. 1801 did not convert portions of Boracay Island
reclassification under the agrarian law. We agree with the opinion into an agricultural land. The island remained an unclassified land
of the Department of Justice126 on this point: of the public domain and, applying the Regalian doctrine, is
considered State property.
Indeed, the key word to the correct application of the prohibition
in Section 4(a) is the word "reclassification." Where there has been Private claimants’ bid for judicial confirmation of imperfect title,
no previous classification of public forest [referring, we repeat, to relying on the Philippine Bill of 1902, Act No. 926, and
the mass of the public domain which has not been the subject of the Proclamation No. 1801, must fail because of the absence of the
present system of classification for purposes of determining which second element of alienable and disposable land. Their
are needed for forest purposes and which are not] into permanent entitlement to a government grant under our present Public Land
forest or forest reserves or some other forest uses under the Revised Act presupposes that the land possessed and applied for is already
Forestry Code, there can be no "reclassification of forest lands" to alienable and disposable. This is clear from the wording of the law
speak of within the meaning of Section 4(a). itself.129Where the land is not alienable and disposable,
possession of the land, no matter how long, cannot confer
Thus, obviously, the prohibition in Section 4(a) of the CARL ownership or possessory rights.130
against the reclassification of forest lands to agricultural lands
without a prior law delimiting the limits of the public domain,
Neither may private claimants apply for judicial confirmation of One Last Note
imperfect title under Proclamation No. 1064, with respect to those
lands which were classified as agricultural lands. Private The Court is aware that millions of pesos have been invested for
claimants failed to prove the first element of open, continuous, the development of Boracay Island, making it a by-word in the
exclusive, and notorious possession of their lands in Boracay since local and international tourism industry. The Court also notes that
June 12, 1945. for a number of years, thousands of people have called the island
their home. While the Court commiserates with private claimants’
We cannot sustain the CA and RTC conclusion in the petition for plight, We are bound to apply the law strictly and judiciously. This
declaratory relief that private claimants complied with the is the law and it should prevail. Ito ang batas at ito ang dapat
requisite period of possession. umiral.

The tax declarations in the name of private claimants are All is not lost, however, for private claimants. While they may not
insufficient to prove the first element of possession. We note that be eligible to apply for judicial confirmation of imperfect title
the earliest of the tax declarations in the name of private claimants under Section 48(b) of CA No. 141, as amended, this does not
were issued in 1993. Being of recent dates, the tax declarations denote their automatic ouster from the residential, commercial,
are not sufficient to convince this Court that the period of and other areas they possess now classified as agricultural.
possession and occupation commenced on June 12, 1945. Neither will this mean the loss of their substantial investments on
their occupied alienable lands. Lack of title does not necessarily
Private claimants insist that they have a vested right in Boracay, mean lack of right to possess.
having been in possession of the island for a long time. They have
invested millions of pesos in developing the island into a tourist For one thing, those with lawful possession may claim good faith
spot. They say their continued possession and investments give as builders of improvements. They can take steps to preserve or
them a vested right which cannot be unilaterally rescinded by protect their possession. For another, they may look into other
Proclamation No. 1064. modes of applying for original registration of title, such as by
homestead131 or sales patent,132 subject to the conditions imposed
The continued possession and considerable investment of private by law.
claimants do not automatically give them a vested right in
Boracay. Nor do these give them a right to apply for a title to the More realistically, Congress may enact a law to entitle private
land they are presently occupying. This Court is constitutionally claimants to acquire title to their occupied lots or to exempt them
bound to decide cases based on the evidence presented and the from certain requirements under the present land laws. There is
laws applicable. As the law and jurisprudence stand, private one such bill133 now pending in the House of Representatives.
claimants are ineligible to apply for a judicial confirmation of title Whether that bill or a similar bill will become a law is for Congress
over their occupied portions in Boracay even with their continued to decide.
possession and considerable investment in the island.
In issuing Proclamation No. 1064, the government has taken the 1. The petition for certiorari in G.R. No. 167707 is GRANTED and
step necessary to open up the island to private ownership. This the Court of Appeals Decision in CA-G.R. CV No. 71118 REVERSED
gesture may not be sufficient to appease some sectors which view AND SET ASIDE.
the classification of the island partially into a forest reserve as
absurd. That the island is no longer overrun by trees, however, 2. The petition for certiorari in G.R. No. 173775 is DISMISSED for
does not becloud the vision to protect its remaining forest cover lack of merit.
and to strike a healthy balance between progress and ecology.
Ecological conservation is as important as economic progress. SO ORDERED.

To be sure, forest lands are fundamental to our nation’s survival.


Their promotion and protection are not just fancy rhetoric for
politicians and activists. These are needs that become more
urgent as destruction of our environment gets prevalent and
difficult to control. As aptly observed by Justice Conrado Sanchez
in 1968 in Director of Forestry v. Munoz:134

The view this Court takes of the cases at bar is but in adherence to
public policy that should be followed with respect to forest lands.
AGRICULTURAL LAND
Many have written much, and many more have spoken, and quite
often, about the pressing need for forest preservation,
#10
conservation, protection, development and reforestation. Not
without justification. For, forests constitute a vital segment of any
country's natural resources. It is of common knowledge by now Republic of the Philippines
that absence of the necessary green cover on our lands produces SUPREME COURT
a number of adverse or ill effects of serious proportions. Without Manila
the trees, watersheds dry up; rivers and lakes which they supply
are emptied of their contents. The fish disappear. Denuded areas EN BANC
become dust bowls. As waterfalls cease to function, so will
hydroelectric plants. With the rains, the fertile topsoil is washed G.R. No. L-3894 March 12, 1909
away; geological erosion results. With erosion come the dreaded
floods that wreak havoc and destruction to property – crops, JUAN IBAÑEZ DE ALDECOA, petitioner-appellant,
livestock, houses, and highways – not to mention precious human vs.
lives. Indeed, the foregoing observations should be written down THE INSULAR GOVERNMENT, respondent-appellee.
in a lumberman’s decalogue.135
Del-Pan, Ortigas and Fisher for appellant.
WHEREFORE, judgment is rendered as follows: Attorney-General Villamor for appellee.
TORRES, J.: Evidence was adduced by the petitioner at the trial of the case, and
on February 2, 1907, the judge of the Court of Land Registration
On the 8th of March, 1904, in accordance with the new Land entered his decision in the matter and, in view of the opposition
Registration Act, Juan Ibañez de Aldecoa applied for the offered by the Insular Government denied the petition without
registration of his title to a parcel of land, 3,375 square meters in costs, and ordered the cancellation of the entry made of the said
extent, situated in the town of Surigao; a plan and technical property in the record under No. 408, folio 206 of volume 2 of the
description of said parcel was attached to his application. municipality of Surigao.

After the formalities of the law were complied with, and an The applicant excepted to this decision and moved for a new trial;
opinion of the examiner of titles opposing the request of the his motion was overruled to which he also excepted and
applicant, had been rendered, the Attorney-General by a writing presented the corresponding bill of exceptions which was
dated March 21, 1905, objected to the registration applied for, approved and submitted to this court.
alleging that the land in question was the property of the
Government of the United States, and is now under the control of The question set up in these proceedings by virtue of the appeal
the Insular Government; that the title of ownership issued by interposed by counsel for Juan Ibañez de Aldecoa, is whether or
the politico-militar governor of Surigao, Mindanao, issued on the not a parcel of land that is susceptible of being cultivated, and,
19th of June, 1889, to Telesforo Ibañez de Aldecoa, antecessor of ceasing to be agricultural land, was converted into a building lot,
the petitioner with respect to the land in question, was entirely is subject to the legal provisions in force regarding Government
null and void, for the reason that said grant had not been made in public lands which may be alienated in favor of private individuals
accordance with the laws then in force on the subject, and because or corporations. While from the remote time of the conquest of
the said governor had no authority to make such a grant; he this Archipelago the occupation or material possession together
prayed the court below to dismiss the application with costs. with the improvement and cultivation for a certain number of
years, as fixed by the laws of the Indies, of given portions of vacant
As the case stood the applicant, Aldecoa, on the 8th of April, 1905, Government lands, was the method established by the
amended his former petition, and relying upon the provisions of Government to facilitate the acquisition thereof by private
paragraph 5 and 6 of section 54 of Act No. 926, alleged that at the persons, later, by the royal decrees of June 25, 1880, and
time he requested the registration of the land in question, December 26, 1884, the system of composition with the State and
comprised in the plan then submitted, the aforesaid Act No. 926 that of sales by public auction were instituted as the means of
was not yet in force, and as the latter affords better facilities for acquiring such lands.
securing titles to property unprovided with them, as in the case
with the land in question, the applicant availing himself of the In view of the difficulties which prevented the rapid dispatch of
benefits granted by the said Act, prayed that the same be applied the proceedings instituted for this purpose, the royal decree of
to the inscription of his land, inasmuch as it was included within February 13, 1894, was promulgated, establishing the possessory
paragraphs 5 and 6 of section 54, Chapter VI, thereof, and prayed information as the method of legalizing possession of vacant
the court to take into consideration the amendment of his petition. Crown land, under certain conditions which were set out in said
decree.
After the change of sovereignty, the Commission enacted Act No. requirements shall not apply to the fact of adverse
926, relating to public lands, in accordance with the provisions of possession.
sections 13, 14, and 15 of the Act of the Congress of the United
States of July 1, 1902, section 54, paragraph 6 of which (Act No. Given the above legal provisions and the data contained in the
926) is as follows: record, it is seen that the land, the registration of which is claimed,
was of the class of vacant crown or public land which the State
SEC. 54. The following-described persons or their legal could alienate to private persons, and being susceptible of
successors in right, occupying public lands in the cultivation, since at any time the person in possession desired to
Philippine Islands, or claiming to own any such lands or an convert it into agricultural land he might do so in the same
interest therein, but whose titles to such lands have not manner that he had made a building lot of it, it undoubtedly falls
been perfected, may apply to the Court of Land within the terms of the said Act of Congress, as well as the
Registration of the Philippine Islands for confirmation of provisions of the abovecited section 54 and paragraph 6 thereof
their claims and the issuance of a certificate of title of Act No. 926, for the reason that the said land is neither mining
therefor to wit: nor timber land.

xxx xxx xxx We refrain from mentioning herein what originally was the nature
of the land whereon was built the greatest cities of the world; and
6. All persons who by themselves or their predecessors in confining ourselves to that on which the cities and towns in these
interest have been in the open, continuous, exclusive, and Islands were erected, it can not be denied that, at the
notorious possession and occupation of agricultural commencement of the occupation of this Archipelago by the
public lands, as defined by said Act of Congress of July first, Spaniards, and at the time of the distribution of lands, the latter
nineteen hundred and two, under a bona fide claim of were rural and agricultural in their nature. Rural also were the old
ownership except as against the Government, for a period towns, the cradle and foundation of the present cities and large
of ten years next preceding the taking effect of this Act, towns of the Philippines, and as the inhabitants increased, and
except when prevented by a war or force majeure, shall be added to the number of their dwellings, the farms gradually
conclusively presumed to have performed all the became converted into town lots.
conditions essential to a government grant and to have
received the same, and shall be entitled to a certificate of In provincial towns, and in the suburbs of Manila, many houses
title to such land under the provisions of this chapter. are to be seen that are erected on lots that form part of land used
for agricultural purposes. If for the time being, and to the
All applicants for lands under paragraph one, two, three, advantage of the possessors thereof, they have ceased to be such
four, and five of this section must establish by proper agricultural lands, they may later on again become transformed
official records or documents that such proceedings as are into farming land and, by the industry of the owner, again be made
therein required were taken and the necessary conditions to yield fruit.
complied with: Provided, however, That such
Hence, any parcel of land or building lot is susceptible of rotation and cultivation; moreover, it does not appear that it was
cultivation, and may be converted into a field, and planted with all ever mining or forest land.
kind of vegetation; for this reason, where land is not mining or
forestall in its nature, it must necessarily be included within the It should be noted that article 1 of the royal decree and regulation
classification of agricultural land, not because it is actually used of the 25th of June, 1880, says: "In the Philippine Islands, all vacant
for the purposes of agriculture, but because it was originally lands, soils, and grounds without a lawful private owner, or, which
agricultural and may again become so under other circumstances; have never been under private control, shall be deemed to be
besides, the Act of Congress contains only three classifications, alienable crown lands for the effects of the regulation, and in
and makes no special provision with respect to building lots or accordance with law 14, title 12, book 4, of the Novísima
urban lands that have ceased to be agricultural land. Recopilación;" that article 1 of the royal decree of the 14th of
February, 1894, states: "Vacant lands, soils, grounds, and
In the decision rendered by this court in the case of Mapa vs. The mountains in the Philippine Islands shall be deemed to be
Insular Government, No. 3793 (10 Phil. Rep., 175), the legislation alienable Crown lands, provided they are not included within the
in force was interpreted in a similar sense. following exceptions: (1) Those of private ownership; (2) those
belonging to the forest zone; (3) those comprised in the communal
It is not to be believed that it was the sense of the two sovereign laws, or within zones reserved for the use in common by residents
powers that have successively promulgated the said laws, to place of the community; and (4) those lands which are susceptible of
those in possession of building lots under title of ownership in an private appropriation by means of composition or possessory
anomalous, uncertain and insecure position, rendering it information;" and that although section 13 of the Act of Congress
impossible for them to obtain legal titles to the lands appropriated of July 1, 1902, directs the Government of the Philippine Islands
by them, and denying them the care and protection of the law to to classify public lands that are neither forest nor mining lands
which they were certainly entitled on account of the efforts they according to their agricultural character and productiveness,
have made, both in their behalf, and for the benefit of the cities section 14 authorizes and empowers the said Government "to
and towns in which they reside, contributing to the wealth and enact rules and regulations and to prescribe terms and conditions
increase of the country. to enable persons to perfect their title to public lands in said
Islands, who, prior to the transfer of sovereignty from Spain to the
In the case at bar we have to deal with laws that were enacted United States, had fulfilled all or some of the conditions required
after almost all the towns of this Archipelago were established, by the Spanish laws and royal decrees of the Kingdom of Spain for
and it must be assumed that the lawmakers have started from the the acquisition of legal title thereto, yet failed to secure
supposition that titles to the building lots within the confines of conveyance of title, etc.;" and section 15 authorizes and empowers
such towns had been duly acquired; therefore, in special cases like the said Government of the Philippine Islands "on such terms as it
the present one, wherein is sought the registration of a lot situated may prescribed, by general legislation, to provide for the granting,
within a town created and acknowledged administratively, it is or sale and conveyance to actual occupants and settlers and other
proper to apply thereto the laws in force and classify it as citizens of said Islands such parts and portions of the public
agricultural land, inasmuch as it was agricultural prior to its domain, other than timber and mineral lands of the United States
conversion into a building lot, and is subject at any time to further on said Islands, as it may deem wise, etc."
From the language of the foregoing provisions of the law, it is the Land Registration Act. No special ruling is made as to costs. So
deduced that, with the exception of those comprised within the ordered.
mineral and timber zone, all lands owned by the State or by the
sovereign nation are public in character, and per se alienable and,
provided they are not destined to the use of the public in general
or reserved by the Government in accordance with law, they may
be acquired by any private or judicial person; and considering
their origin and primitive state and the general uses to which they
were accorded, they are called agricultural lands, urban lands or
building lots being included in this classification for the purpose #11
of distinguishing rural and urban estates from mineral and timber
lands; the transformation they may have undergone is no obstacle Republic of the Philippines
to such classification as the possessors thereof may again convert SUPREME COURT
them into rural estates. Manila
If the land sought to be registered is neither mineral nor timber EN BANC
land, and on the other hand is susceptible of cultivation the Act of
Congress contains no provision whatever that would exclude it
G.R. No. L-630 November 15, 1947
from being classified as agricultural land, and assuming that it falls
within that classification, the benefits of paragraph 6, section 54,
of Act No. 926, must forthwith be applied for the reason that it has ALEXANDER A. KRIVENKO, petitioner-appellant,
been fully proven that the applicant was in possession thereof for vs.
more than 13 years prior to the 26th of July, 1904, when the said THE REGISTER OF DEEDS, CITY OF MANILA, respondent and
Act went into effect. Furthermore, there is no legal reason or cause appellee.
to exclude urban lands from the benefits of the aforesaid Act; on
the contrary, the interpretation that urban real estate, that is not Gibbs, Gibbs, Chuidian and Quasha of petitioner-appellant.
mineral or forestall in character, be understood to fall within the First Assistant Solicitor General Reyes and Solicitor Carreon for
classification of agricultural land, is deemed to be most rational respondent-appellee.
and beneficial to public interests. Marcelino Lontok appeared as amicus curies.

Therefore, in view of the foregoing, it is our opinion that the MORAN, C.J.:
judgment appealed from should be reversed, and that it should be,
as it is, hereby ordered, that, after holding in general default all Alenxander A. Kriventor alien, bought a residential lot from the
such persons as may have any interest in the said parcel of land, Magdalena Estate, Inc., in December of 1941, the registration of
the registration of the same shall be granted in accordance with which was interrupted by the war. In May, 1945, he sought to
accomplish said registration but was denied by the register of
deeds of Manila on the ground that, being an alien, he cannot circular of the Department of Justice, instructing all register of
acquire land in this jurisdiction. Krivenko then brought the case deeds to accept for registration all transfers of residential lots to
to the fourth branch of the Court of First Instance of Manila by aliens. The herein respondent-appellee was naturally one of the
means of a consulta, and that court rendered judgment sustaining registers of deeds to obey the new circular, as against his own
the refusal of the register of deeds, from which Krivenko appealed stand in this case which had been maintained by the trial court
to this Court. and firmly defended in this Court by the Solicitor General. If we
grant the withdrawal, the the result would be that petitioner-
There is no dispute as to these facts. The real point in issue is appellant Alexander A. Krivenko wins his case, not by a decision
whether or not an alien under our Constitution may acquire of this Court, but by the decision or circular of the Department of
residential land. Justice, issued while this case was pending before this Court.
Whether or not this is the reason why appellant seeks the
It is said that the decision of the case on the merits is unnecessary, withdrawal of his appeal and why the Solicitor General readily
there being a motion to withdraw the appeal which should have agrees to that withdrawal, is now immaterial. What is material
been granted outright, and reference is made to the ruling laid and indeed very important, is whether or not we should allow
down by this Court in another case to the effect that a court should interference with the regular and complete exercise by this Court
not pass upon a constitutional question if its judgment may be of its constitutional functions, and whether or not after having
made to rest upon other grounds. There is, we believe, a confusion held long deliberations and after having reached a clear and
of ideas in this reasoning. It cannot be denied that the positive conviction as to what the constitutional mandate is, we
constitutional question is unavoidable if we choose to decide this may still allow our conviction to be silenced, and the
case upon the merits. Our judgment cannot to be made to rest constitutional mandate to be ignored or misconceived, with all the
upon other grounds if we have to render any judgment at all. And harmful consequences that might be brought upon the national
we cannot avoid our judgment simply because we have to avoid a patromony. For it is but natural that the new circular be taken full
constitutional question. We cannot, for instance, grant the motion advantage of by many, with the circumstance that perhaps the
withdrawing the appeal only because we wish to evade the constitutional question may never come up again before this
constitutional; issue. Whether the motion should be, or should not court, because both vendors and vendees will have no interest but
be, granted, is a question involving different considerations now to uphold the validity of their transactions, and very unlikely will
to be stated. the register of deeds venture to disobey the orders of their
superior. Thus, the possibility for this court to voice its conviction
According to Rule 52, section 4, of the Rules of Court, it is in a future case may be remote, with the result that our
discretionary upon this Court to grant a withdrawal of appeal indifference of today might signify a permanent offense to the
after the briefs have been presented. At the time the motion for Constitution.
withdrawal was filed in this case, not only had the briefs been
prensented, but the case had already been voted and the majority All thse circumstances were thoroughly considered and weighted
decision was being prepared. The motion for withdrawal stated by this Court for a number of days and the legal result of the last
no reason whatsoever, and the Solicitor General was agreeable to vote was a denial of the motion withdrawing the appeal. We are
it. While the motion was pending in this Court, came the new thus confronted, at this stage of the proceedings, with our duty,
the constitutional question becomes unavoidable. We shall then mention of only agricultural, timber and mineral lands, it means
proceed to decide that question. that all lands of the public domain are classified into said three
groups, namely, agricultural, timber and mineral. And this
Article XIII, section 1, of the Constitutional is as follows: classification finds corroboration in the circumstance that at the
time of the adoption of the Constitution, that was the basic
Article XIII. — Conservation and utilization of natural classification existing in the public laws and judicial decisions in
resources. the Philippines, and the term "public agricultural lands" under
said classification had then acquired a technical meaning that was
SECTION 1. All agricultural, timber, and mineral lands of well-known to the members of the Constitutional Convention who
the public domain, water, minerals, coal, petroleum, and were mostly members of the legal profession.
other mineral oils, all forces of potential energy, and other
natural resources of the Philippines belong to the State, As early as 1908, in the case of Mapa vs. Insular Government (10
and their disposition, exploitation, development, or Phil., 175, 182), this Court said that the phrase "agricultural public
utilization shall be limited to citizens of the Philippines, or lands" as defined in the Act of Congress of July 1, 1902, which
to corporations or associations at least sixty per centum of phrase is also to be found in several sections of the Public Land
the capital of which is owned by such citizens, subject to Act (No. 926), means "those public lands acquired from Spain
any existing right, grant, lease, or concession at the time of which are neither mineral for timber lands." This definition has
the inaguration of the Government established uunder been followed in long line of decisions of this Court.
this Constitution. Natural resources, with the exception of (See Montano vs. Insular Government, 12 Phil., 593; Ibañez de
public agricultural land, shall not be alienated, and no Aldecoa vs. Insular Government, 13 Phil., 159; Ramos vs. Director
licence, concession, or lease for the exploitation, of Lands, 39 Phil., 175; Jocson vs. Director of Forestry, 39 Phil.,
development, or utilization of any of the natural resources 560; Ankron vs. Government of the Philippines, 40 Phil., 10.) And
shall be granted for a period exceeding twenty-five years, with respect to residential lands, it has been held that since they
renewable for another twenty-five years, except as to are neither mineral nor timber lands, of necessity they must be
water rights for irrigation, water supply, fisheries, or classified as agricultural. In Ibañez de Aldecoa vs. Insular
industrial uses other than the development of water Government (13 Phil., 159, 163), this Court said:
"power" in which cases beneficial use may be the measure
and the limit of the grant. Hence, any parcel of land or building lot is susceptible of
cultivation, and may be converted into a field, and planted
The scope of this constitutional provision, according to its heading with all kinds of vegetation; for this reason, where land is
and its language, embraces all lands of any kind of the public not mining or forestal in its nature, it must necessarily be
domain, its purpose being to establish a permanent and included within the classification of agricultural land, not
fundamental policy for the conservation and utilization because it is actually used for the purposes of agriculture,
of all natural resources of the Nation. When, therefore, this but because it was originally agricultural and may again
provision, with reference to lands of the public domain, makes become so under other circumstances; besides, the Act of
Congress contains only three classification, and makes no
special provision with respect to building lots or urban Where words have been long used in a technical sense and
lands that have ceased to be agricultural land. have been judicially construed to have a certain meaning,
and have been adopted by the legislature as having a
In other words, the Court ruled that in determining whether a certain meaning prior to a particular statute in which they
parcel of land is agricultural, the test is not only whether it is are used, the rule of construction requires that the words
actually agricultural, but also its susceptibility to cultivation for used in such statute should be construed according to the
agricultural purposes. But whatever the test might be, the fact sense in which they have been so previously used,
remains that at the time the Constitution was adopted, lands of the although the sense may vary from strict literal meaning of
public domain were classified in our laws and jurisprudence into the words. (II Sutherland, Statutory Construction, p. 758.)
agricultural, mineral, and timber, and that the term "public
agricultural lands" was construed as referring to those lands that Therefore, the phrase "public agricultural lands" appearing in
were not timber or mineral, and as including residential lands. It section 1 of Article XIII of the Constitution must be construed as
may safely be presumed, therefore, that what the members of the including residential lands, and this is in conformity with a
Constitutional Convention had in mind when they drafted the legislative interpretation given after the adoption of the
Constitution was this well-known classification and its technical Constitution. Well known is the rule that "where the Legislature
meaning then prevailing. has revised a statute after a Constitution has been adopted, such a
revision is to be regarded as a legislative construction that the
Certain expressions which appear in Constitutions, . . . are statute so revised conforms to the Constitution." (59 C.J., 1102.)
obviously technical; and where such words have been in Soon after the Constitution was adopted, the National Assembly
use prior to the adoption of a Constitution, it is presumed revised the Public Land Law and passed Commonwealth Act No.
that its framers and the people who ratified it have used 141, and sections 58, 59 and 60 thereof permit the sale of
such expressions in accordance with their technical residential lots to Filipino citizens or to associations or
meaning. (11 Am. Jur., sec. 66, p. 683.) Also Calder vs. Bull, corporations controlled by such citizens, which is equivalent to a
3 Dall. [U.S.], 386; 1 Law. ed., 648; Bronson vs. Syverson, solemn declaration that residential lots are considered as
88 Wash., 264; 152 P., 1039.) agricultural lands, for, under the Constitution, only agricultural
lands may be alienated.
It is a fundamental rule that, in construing constitutions,
terms employed therein shall be given the meaning which It is true that in section 9 of said Commonwealth Act No. 141,
had been put upon them, and which they possessed, at the "alienable or disposable public lands" which are the same "public
time of the framing and adoption of the instrument. If a agriculture lands" under the Constitution, are classified into
word has acquired a fixed, technical meaning in legal and agricultural, residential, commercial, industrial and for other
constitutional history, it will be presumed to have been puposes. This simply means that the term "public agricultural
employed in that sense in a written Constitution. lands" has both a broad and a particular meaning. Under its broad
(McKinney vs. Barker, 180 Ky., 526; 203 S.W., 303; L.R.A., or general meaning, as used in the Constitution, it embraces all
1918 E, 581.) lands that are neither timber nor mineral. This broad meaning is
particularized in section 9 of Commonwealth Act No. 141 which
classifies "public agricultural lands" for purposes of alienation or Section 1, Article XII (now XIII) of the Constitution
disposition, into lands that are stricly agricultural or actually classifies lands of the public domain in the Philippines into
devoted to cultivation for agricultural puposes; lands that are agricultural, timber and mineral. This is the basic
residential; commercial; industrial; or lands for other purposes. classification adopted since the enactment of the Act of
The fact that these lands are made alienable or disposable under Congress of July 1, 1902, known as the Philippine Bill. At
Commonwealth Act No. 141, in favor of Filipino citizens, is a the time of the adoption of the Constitution of the
conclusive indication of their character as public agricultural Philippines, the term 'agricultural public lands' and,
lands under said statute and under the Constitution. therefore, acquired a technical meaning in our public laws.
The Supreme Court of the Philippines in the leading case
It must be observed, in this connection that prior to the of Mapa vs. Insular Government, 10 Phil., 175, held that the
Constitution, under section 24 of Public Land Act No. 2874, aliens phrase 'agricultural public lands' means those public
could acquire public agricultural lands used for industrial or lands acquired from Spain which are neither timber nor
residential puposes, but after the Constitution and under section mineral lands. This definition has been followed by our
23 of Commonwealth Act No. 141, the right of aliens to acquire Supreme Court in many subsequent case. . . .
such kind of lands is completely stricken out, undoubtedly in
pursuance of the constitutional limitation. And, again, prior to the Residential commercial, or industrial lots forming part of
Constitution, under section 57 of Public Land Act No. 2874, land the public domain must have to be included in one or more
of the public domain suitable for residence or industrial purposes of these classes. Clearly, they are neither timber nor
could be sold or leased to aliens, but after the Constitution and mineral, of necessity, therefore, they must be classified as
under section 60 of Commonwealth Act No. 141, such land may agricultural.
only be leased, but not sold, to aliens, and the lease granted shall
only be valid while the land is used for the purposes referred to. Viewed from another angle, it has been held that in
The exclusion of sale in the new Act is undoubtedly in pursuance determining whether lands are agricultural or not, the
of the constitutional limitation, and this again is another character of the land is the test (Odell vs. Durant, 62 N.W.,
legislative construction that the term "public agricultural land" 524; Lorch vs. Missoula Brick and Tile Co., 123 p.25). In
includes land for residence purposes. other words, it is the susceptibility of the land to
cultivation for agricultural purposes by ordinary farming
Such legislative interpretation is also in harmony with the methods which determines whether it is agricultural or
interpretation given by the Executive Department of the not (State vs. Stewart, 190 p. 129).
Government. Way back in 1939, Secretary of Justice Jose Abad
Santos, in answer to a query as to "whether or not the phrase Furthermore, as said by the Director of Lands, no reason
'public agricultural lands' in section 1 of Article XII (now XIII) of is seen why a piece of land, which may be sold to a person
the Constitution may be interpreted to include residential, if he is to devote it to agricultural, cannot be sold to him if
commercial, and industrial lands for purposes of their he intends to use it as a site for his home.
disposition," rendered the following short, sharp and crystal-clear
opinion:
This opinion is important not alone because it comes from a It would certainly be futile to prohibit the alienation of public
Secratary of Justice who later became the Chief Justice of this agricultural lands to aliens if, after all, they may be freely so
Court, but also because it was rendered by a member of the alienated upon their becoming private agricultural lands in the
cabinet of the late President Quezon who actively participated in hands of Filipino citizens. Undoubtedly, as above indicated,
the drafting of the constitutional provision under consideration. section 5 is intended to insure the policy of nationalization
(2 Aruego, Framing of the Philippine Constitution, p. 598.) And the contained in section 1. Both sections must, therefore, be read
opinion of the Quezon administration was reiterated by the together for they have the same purpose and the same subject
Secretary of Justice under the Osmeña administration, and it was matter. It must be noticed that the persons against whom the
firmly maintained in this Court by the Solicitor General of both prohibition is directed in section 5 are the very same persons who
administrations. under section 1 are disqualified "to acquire or hold lands of the
public domain in the Philippines." And the subject matter of both
It is thus clear that the three great departments of the Government sections is the same, namely, the non-transferability of
— judicial, legislative and executive — have always maintained "agricultural land" to aliens. Since "agricultural land" under
that lands of the public domain are classified into agricultural, section 1 includes residential lots, the same technical meaning
mineral and timber, and that agricultural lands include residential should be attached to "agricultural land under section 5. It is a rule
lots. of statutory construction that "a word or phrase repeated in a
statute will bear the same meaning throughout the statute, unless
Under section 1 of Article XIII of the Constitution, "natural a different intention appears." (II Sutherland, Statutory
resources, with the exception of public agricultural land, Construction, p. 758.) The only difference between "agricultural
shall not be aliented," and with respect to public agricultural land" under section 5, is that the former is public and the latter
lands, their alienation is limited to Filipino citizens. But this private. But such difference refers to ownership and not to the
constitutional purpose conserving agricultural resources in the class of land. The lands are the same in both sections, and, for the
hands of Filipino citizens may easily be defeated by the Filipino conservation of the national patrimony, what is important is the
citizens themselves who may alienate their agricultural lands in nature or class of the property regardless of whether it is owned
favor of aliens. It is partly to prevent this result that section 5 is by the State or by its citizens.
included in Article XIII, and it reads as follows:
Reference is made to an opinion rendered on September 19, 1941,
Sec. 5. Save in cases of hereditary succession, no private by the Hon. Teofilo Sison, then Secretary of Justice, to the effect
agricultural land will be transferred or assigned except to that residential lands of the public domain may be considered as
individuals, corporations, or associations qualified to agricultural lands, whereas residential lands of private ownership
acquire or hold lands of the public domain in the cannot be so considered. No reason whatsoever is given in the
Philippines. opinion for such a distinction, and no valid reason can be adduced
for such a discriminatory view, particularly having in mind that
This constitutional provision closes the only remaining avenue the purpose of the constitutional provision is the conservation of
through which agricultural resources may leak into aliens' hands. the national patrimony, and private residential lands are as much
an integral part of the national patrimony as the residential lands
of the public domain. Specially is this so where, as indicated above, only residential lots and houses for themselves but entire
the prohibition as to the alienable of public residential lots would subdivisions, and whole towns and cities," and that "they may
become superflous if the same prohibition is not equally applied validly buy and hold in their names lands of any area for building
to private residential lots. Indeed, the prohibition as to private homes, factories, industrial plants, fisheries, hatcheries, schools,
residential lands will eventually become more important, for time health and vacation resorts, markets, golf courses, playgrounds,
will come when, in view of the constant disposition of public lands airfields, and a host of other uses and purposes that are not, in
in favor of private individuals, almost all, if not all, the residential appellant's words, strictly agricultural." (Solicitor General's Brief,
lands of the public domain shall have become private residential p. 6.) That this is obnoxious to the conservative spirit of the
lands. Constitution is beyond question.

It is maintained that in the first draft of section 5, the words "no One of the fundamental principles underlying the provision of
land of private ownership" were used and later changed into "no Article XIII of the Constitution and which was embodied in the
agricultural land of private ownership," and lastly into "no private report of the Committee on Nationalization and Preservation of
agricultural land" and from these changes it is argued that the Lands and other Natural Resources of the Constitutional
word "agricultural" introduced in the second and final drafts was Convention, is "that lands, minerals, forests, and other natural
intended to limit the meaning of the word "land" to land actually resources constitute the exclusive heritage of the Filipino nation.
used for agricultural purposes. The implication is not accurate. They should, therefore, be preserved for those under the
The wording of the first draft was amended for no other purpose sovereign authority of that nation and for their posterity." (2
than to clarify concepts and avoid uncertainties. The words "no Aruego, Framing of the Filipino Constitution, p. 595.) Delegate
land" of the first draft, unqualified by the word "agricultural," may Ledesma, Chairman of the Committee on Agricultural
be mistaken to include timber and mineral lands, and since under Development of the Constitutional Convention, in a speech
section 1, this kind of lands can never be private, the prohibition delivered in connection with the national policy on agricultural
to transfer the same would be superfluous. Upon the other hand, lands, said: "The exclusion of aliens from the privilege of
section 5 had to be drafted in harmony with section 1 to which it acquiring public agricultural lands and of owning real estate is a
is supplementary, as above indicated. Inasmuch as under section necessary part of the Public Land Laws of the Philippines to keep
1, timber and mineral lands can never be private, and the only pace with the idea of preserving the Philippines for the Filipinos."
lands that may become private are agricultural lands, the words (Emphasis ours.) And, of the same tenor was the speech of
"no land of private ownership" of the first draft can have no other Delegate Montilla who said: "With the complete nationalization of
meaning than "private agricultural land." And thus the change in our lands and natural resources it is to be understood that our
the final draft is merely one of words in order to make its subject God-given birthright should be one hundred per cent in Filipino
matter more specific with a view to avoiding the possible hands . . .. Lands and natural resources are immovables and as
confusion of ideas that could have arisen from the first draft. such can be compared to the vital organs of a person's body, the
lack of possession of which may cause instant death or the
If the term "private agricultural lands" is to be construed as not shortening of life. If we do not completely antionalize these two of
including residential lots or lands not strictly agricultural, the our most important belongings, I am afraid that the time will come
result would be that "aliens may freely acquire and possess not when we shall be sorry for the time we were born. Our
independence will be just a mockery, for what kind of manner and to the extent specified in such laws, and while
independence are we going to have if a part of our country is not the same are in force but not thereafter.
in our hands but in those of foreigners?" (Emphasis ours.)
Professor Aruego says that since the opening days of the SEC. 121. No land originally acquired in any manner under
Constitutional Convention one of its fixed and dominating the provisions of the former Public Land Act or of any
objectives was the conservation and nationalization of the natural other Act, ordinance, royal order, royal decree, or any
resources of the country. (2 Aruego, Framing of the Philippine other provision of law formerly in force in the Philippine
Constitution, p 592.) This is ratified by the members of the Islands with regard to public lands, terrenos baldios y
Constitutional Convention who are now members of this Court, realengos, or lands of any other denomination that were
namely, Mr. Justice Perfecto, Mr. Justice Briones, and Mr. Justice actually or presumptively of the public domain or by royal
Hontiveros. And, indeed, if under Article XIV, section 8, of the grant or in any other form, nor any permanent
Constitution, an alien may not even operate a small jitney for hire, improvement on such land, shall be encumbered,
it is certainly not hard to understand that neither is he allowed to alienated, or conveyed, except to persons, corporations, or
own a pieace of land. associations who may acquire land of the public domain
under this Act; to corporate bodies organized in the
This constitutional intent is made more patent and is strongly Philippine Islands whose charters may authorize them to
implemented by an act of the National Assembly passed soon after do so, and, upon express authorization by the Philippine
the Constitution was approved. We are referring again to Legislature, to citizens of the countries the laws of which
Commonwealth Act No. 141. Prior to the Constitution, there were grant to citizens of the Philippine Islands the same right to
in the Public Land Act No. 2874 sections 120 and 121 which acquire, hold, lease, encumber, dispose of, or alienate land
granted aliens the right to acquire private only by way of or pemanent improvements thereon or any interest
reciprocity. Said section reads as follows: therein, as to their own citizens, and only in the manner
and to the extent specified in such laws, and while the
SEC. 120. No land originally acquired in any manner under same are in force, but not thereafter: Provided, however,
the provisions of this Act, nor any permanent That this prohibition shall not be applicable to the
improvement on such land, shall be encumbered, conveyance or acquisition by reason of hereditary
alienated, or transferred, except to persons, corporations, succession duly acknowledged and legalized by
associations, or partnerships who may acquire lands of competent courts, nor to lands and improvements
the public domain under this Act; to corporations acquired or held for industrial or residence purposes,
organized in the Philippine Islands authorized therefor by while used for such purposes: Provided, further, That in
their charters, and, upon express authorization by the the event of the ownership of the lands and improvements
Philippine Legislature, to citizens of countries the laws of mentioned in this section and in the last preceding section
which grant to citizens of the Philippine Islands the same being transferred by judicial decree to
right to acquire, hold, lease, encumber, dispose of, or persons,corporations or associations not legally
alienate land, or permanent improvements thereon, or capacitated to acquire the same under the provisions of
any interest therein, as to their own citizens, only in the this Act, such persons, corporations, or associations shall
be obliged to alienate said lands or improvements to any permanent improvement on such land, shall be
others so capacitated within the precise period of five encumbered, alienated, or conveyed, except to persons,
years, under the penalty of such property reverting to the corporations or associations who may acquire land of the
Government in the contrary case." (Public Land Act, No. public domain under this Act or to corporate bodies
2874.) organized in the Philippines whose charters authorize
them to do so: Provided, however, That this prohibition
It is to be observed that the pharase "no land" used in these shall not be applicable to the conveyance or acquisition by
section refers to all private lands, whether strictly agricultural, reason of hereditary succession duly acknowledged and
residential or otherwise, there being practically no private land legalized by competent courts: Provided, further, That in
which had not been acquired by any of the means provided in said the event of the ownership of the lands and improvements
two sections. Therefore, the prohibition contained in these two mentioned in this section and in the last preceding section
provisions was, in effect, that no private land could be transferred being transferred by judicial decree to persons,
to aliens except "upon express authorization by the Philippine corporations or associations not legally capacitated to
Legislature, to citizens of Philippine Islands the same right to acquire the same under the provisions of this Act, such
acquire, hold, lease, encumber, dispose of, or alienate land." In persons, corporations, or associations shall be obliged to
other words, aliens were granted the right to acquire private land alienate said lands or improvements to others so
merely by way of reciprocity. Then came the Constitution and capacitated within the precise period of five years;
Commonwealth Act No. 141 was passed, sections 122 and 123 of otherwise, such property shall revert to the Government.
which read as follows:
These two sections are almost literally the same as sections 120
SEC. 122. No land originally acquired in any manner under and 121 of Act No. 2874, the only difference being that in the new
the provisions of this Act, nor any permanent provisions, the right to reciprocity granted to aliens is completely
improvement on such land, shall be encumbered, stricken out. This, undoubtedly, is to conform to the absolute
alienated, or transferred, except to persons, corporations, policy contained in section 5 of Article XIII of the Constitution
associations, or partnerships who may acquire lands of which, in prohibiting the alienation of private agricultural lands to
the public domain under this Act or to corporations aliens, grants them no right of reciprocity. This legislative
organized in the Philippines authorized thereof by their construction carries exceptional weight, for prominent members
charters. of the National Assembly who approved the new Act had been
members of the Constitutional Convention.
SEC. 123. No land originally acquired in any manner under
the provisions of any previous Act, ordinance, royal order, It is said that the lot question does not come within the purview
royal decree, or any other provision of law formerly in of sections 122 and 123 of Commonwealth Act No. 141, there
force in the Philippines with regard to public being no proof that the same had been acquired by one of the
lands terrenos baldios y realengos, or lands of any other means provided in said provisions. We are not, however, diciding
denomination that were actually or presumptively of the the instant case under the provisions of the Public Land Act, which
public domain, or by royal grant or in any other form, nor have to refer to land that had been formerly of the public domain,
otherwise their constitutionality may be doubtful. We are rights such as a lease contract which is not forbidden by the
deciding the instant case under section 5 of Article XIII of the Constitution. Should they desire to remain here forever and share
Constitution which is more comprehensive and more absolute in our fortunes and misfortunes, Filipino citizenship is not
the sense that it prohibits the transfer to alien of any private impossible to acquire.
agricultural land including residential land whatever its origin
might have been. For all the foregoing, we hold that under the Constitution aliens
may not acquire private or public agricultural lands, including
And, finally, on June 14, 1947, the Congress approved Republic Act residential lands, and, accordingly, judgment is affirmed, without
No. 133 which allows mortgage of "private real property" of any costs.
kind in favor of aliens but with a qualification consisting of
expressly prohibiting aliens to bid or take part in any sale of such
real property as a consequence of the mortgage. This prohibition
makes no distinction between private lands that are strictly
agricultural and private lands that are residental or commercial.
The prohibition embraces the sale of private lands of any kind in
favor of aliens, which is again a clear implementation and a
legislative interpretation of the constitutional prohibition. Had
the Congress been of opinion that private residential lands may be
sold to aliens under the Constitution, no legislative measure
would have been found necessary to authorize mortgage which
would have been deemed also permissible under the Constitution.
But clearly it was the opinion of the Congress that such sale is
forbidden by the Constitution and it was such opinion that
prompted the legislative measure intended to clarify that
mortgage is not within the constitutional prohibition.

It is well to note at this juncture that in the present case we have


no choice. We are construing the Constitution as it is and not as
we may desire it to be. Perhaps the effect of our construction is to
preclude aliens, admitted freely into the Philippines from owning
sites where they may build their homes. But if this is the solemn
mandate of the Constitution, we will not attempt to compromise
it even in the name of amity or equity. We are satisfied, however,
that aliens are not completely excluded by the Constitution from ANCESTRAL DOMAIN
the use of lands for residential purposes. Since their residence in
the Philippines is temporary, they may be granted temporary #12
Republic of the Philippines VALONES, PEPE H. ATONG, OFELIA T. DAVI, PERFECTO B.
SUPREME COURT GUINOSAO, WALTER N. TIMOL, MANUEL T. SELEN, OSCAR
Manila DALUNHAY, RICO O. SULATAN, RAFFY MALINDA, ALFREDO
ABILLANOS, JESSIE ANDILAB, MIRLANDO H.
EN BANC MANGKULINTAS, SAMIE SATURNO, ROMEO A. LINDAHAY,
ROEL S. MANSANG-CAGAN, PAQUITO S. LIESES, FILIPE G.
G.R. No. 135385 December 6, 2000 SAWAY, HERMINIA S. SAWAY, JULIUS S. SAWAY, LEONARDA
SAWAY, JIMMY UGYUB, SALVADOR TIONGSON, VENANCIO
ISAGANI CRUZ and CESAR EUROPA, petitioners, APANG, MADION MALID, SUKIM MALID, NENENG MALID,
vs. MANGKATADONG AUGUSTO DIANO, JOSEPHINE M. ALBESO,
SECRETARY OF ENVIRONMENT AND NATURAL RESOURCES, MORENO MALID, MARIO MANGCAL, FELAY DIAMILING,
SECRETARY OF BUDGET AND MANAGEMENT and CHAIRMAN SALOME P. SARZA, FELIPE P. BAGON, SAMMY SALNUNGAN,
and COMMISSIONERS OF THE NATIONAL COMMISSION ON ANTONIO D. EMBA, NORMA MAPANSAGONOS, ROMEO
INDIGENOUS PEOPLES, respondents. SALIGA, SR., JERSON P. GERADA, RENATO T. BAGON, JR.,
HON. JUAN M .FLAVIER, HON. PONCIANO BENNAGEN, BAYANI SARING MASALONG, SOLEDAD M. GERARDA, ELIZABETH L.
ASCARRAGA, EDTAMI MANSAYANGAN, BASILIO WANDAG, MENDI, MORANTE S. TIWAN, DANILO M. MALUDAO, MINORS
EVELYN DUNUAN, YAOM TUGAS, ALFREMO CARPIANO, MARICEL MALID, represented by her father CORNELIO
LIBERATO A. GABIN, MATERNIDAD M. COLAS, NARCISA M. MALID, MARCELINO M. LADRA, represented by her father
DALUPINES, BAI KIRAM-CONNIE SATURNO, BAE MLOMO- MONICO D. LADRA, JENNYLYN MALID, represented by her
BEATRIZ T. ABASALA, DATU BALITUNGTUNG-ANTONIO D. father TONY MALID, ARIEL M. EVANGELISTA, represented by
LUMANDONG, DATU MANTUMUKAW TEOFISTO SABASALES, her mother LINAY BALBUENA, EDWARD M. EMUY, SR.,
DATU EDUAARDO BANDA, DATU JOEL UNAD, DATU RAMON SUSAN BOLANIO, OND, PULA BATO B'LAAN TRIBAL
BAYAAN, TIMUAY JOSE ANOY, TIMUAY MACARIO D. FARMER'S ASSOCIATION, INTER-PEOPLE'S EXCHANGE, INC.
SALACAO, TIMUAY EDWIN B. ENDING, DATU SAHAMPONG and GREEN FORUM-WESTERN VISAYAS, intervenors.
MALANAW VI, DATU BEN PENDAO CABIGON, BAI COMMISSION ON HUMAN RIGHTS, intervenor.
NANAPNAY-LIZA SAWAY, BAY INAY DAYA-MELINDA S. IKALAHAN INDIGENOUS PEOPLE and HARIBON
REYMUNDO, BAI TINANGHAGA HELINITA T. PANGAN, DATU FOUNDATION FOR THE CONSERVATION OF NATURAL
MAKAPUKAW ADOLINO L. SAWAY, DATU MAUDAYAW- RESOURCES, INC., intervenor.
CRISPEN SAWAY, VICKY MAKAY, LOURDES D. AMOS,
GILBERT P. HOGGANG, TERESA GASPAR, MANUEL S. RESOLUTION
ONALAN, MIA GRACE L. GIRON, ROSEMARIE G. PE, BENITO
CARINO, JOSEPH JUDE CARANTES, LYNETTE CARANTES- PER CURIAM:
VIVAL, LANGLEY SEGUNDO, SATUR S. BUGNAY, CARLING
DOMULOT, ANDRES MENDIOGRIN, LEOPOLDO ABUGAN, Petitioners Isagani Cruz and Cesar Europa brought this suit for
VIRGILIO CAYETANO, CONCHITA G. DESCAGA, LEVY ESTEVES, prohibition and mandamus as citizens and taxpayers, assailing the
ODETTE G. ESTEVEZ, RODOLFO C. AGUILAR, MAURO constitutionality of certain provisions of Republic Act No. 8371
(R.A. 8371), otherwise known as the Indigenous Peoples Rights disadvantage like indigenous peoples. For this reason it prays that
Act of 1997 (IPRA), and its Implementing Rules and Regulations the petition be dismissed.
(Implementing Rules).
On March 23, 1999, another group, composed of the Ikalahan
In its resolution of September 29, 1998, the Court required Indigenous People and the Haribon Foundation for the
respondents to comment.1 In compliance, respondents Conservation of Natural Resources, Inc. (Haribon, et al.), filed a
Chairperson and Commissioners of the National Commission on motion to Intervene with attached Comment-in-Intervention.
Indigenous Peoples (NCIP), the government agency created under They agree with the NCIP and Flavier, et al. that IPRA is consistent
the IPRA to implement its provisions, filed on October 13, 1998 with the Constitution and pray that the petition for prohibition
their Comment to the Petition, in which they defend the and mandamus be dismissed.
constitutionality of the IPRA and pray that the petition be
dismissed for lack of merit. The motions for intervention of the aforesaid groups and
organizations were granted.
On October 19, 1998, respondents Secretary of the Department of
Environment and Natural Resources (DENR) and Secretary of the Oral arguments were heard on April 13, 1999. Thereafter, the
Department of Budget and Management (DBM) filed through the parties and intervenors filed their respective memoranda in
Solicitor General a consolidated Comment. The Solicitor General which they reiterate the arguments adduced in their earlier
is of the view that the IPRA is partly unconstitutional on the pleadings and during the hearing.
ground that it grants ownership over natural resources to
indigenous peoples and prays that the petition be granted in part. Petitioners assail the constitutionality of the following provisions
of the IPRA and its Implementing Rules on the ground that they
On November 10, 1998, a group of intervenors, composed of Sen. amount to an unlawful deprivation of the State’s ownership over
Juan Flavier, one of the authors of the IPRA, Mr. Ponciano lands of the public domain as well as minerals and other natural
Bennagen, a member of the 1986 Constitutional Commission, and resources therein, in violation of the regalian doctrine embodied
the leaders and members of 112 groups of indigenous peoples in Section 2, Article XII of the Constitution:
(Flavier, et. al), filed their Motion for Leave to Intervene. They join
the NCIP in defending the constitutionality of IPRA and praying "(1) Section 3(a) which defines the extent and coverage of
for the dismissal of the petition. ancestral domains, and Section 3(b) which, in turn, defines
ancestral lands;
On March 22, 1999, the Commission on Human Rights (CHR)
likewise filed a Motion to Intervene and/or to Appear as Amicus "(2) Section 5, in relation to section 3(a), which provides that
Curiae. The CHR asserts that IPRA is an expression of the principle ancestral domains including inalienable public lands, bodies of
of parens patriae and that the State has the responsibility to water, mineral and other resources found within ancestral
protect and guarantee the rights of those who are at a serious domains are private but community property of the indigenous
peoples;
"(3) Section 6 in relation to section 3(a) and 3(b) which defines These provisions are:
the composition of ancestral domains and ancestral lands;
"(1) sections 51 to 53 and 59 which detail the process of
"(4) Section 7 which recognizes and enumerates the rights of the delineation and recognition of ancestral domains and
indigenous peoples over the ancestral domains; which vest on the NCIP the sole authority to delineate
ancestral domains and ancestral lands;
(5) Section 8 which recognizes and enumerates the rights of the
indigenous peoples over the ancestral lands; "(2) Section 52[i] which provides that upon certification
by the NCIP that a particular area is an ancestral domain
"(6) Section 57 which provides for priority rights of the and upon notification to the following officials, namely,
indigenous peoples in the harvesting, extraction, development or the Secretary of Environment and Natural Resources,
exploration of minerals and other natural resources within the Secretary of Interior and Local Governments, Secretary of
areas claimed to be their ancestral domains, and the right to enter Justice and Commissioner of the National Development
into agreements with nonindigenous peoples for the development Corporation, the jurisdiction of said officials over said area
and utilization of natural resources therein for a period not terminates;
exceeding 25 years, renewable for not more than 25 years; and
"(3) Section 63 which provides the customary law,
"(7) Section 58 which gives the indigenous peoples the traditions and practices of indigenous peoples shall be
responsibility to maintain, develop, protect and conserve the applied first with respect to property rights, claims of
ancestral domains and portions thereof which are found to be ownership, hereditary succession and settlement of land
necessary for critical watersheds, mangroves, wildlife disputes, and that any doubt or ambiguity in the
sanctuaries, wilderness, protected areas, forest cover or interpretation thereof shall be resolved in favor of the
reforestation."2 indigenous peoples;

Petitioners also content that, by providing for an all- "(4) Section 65 which states that customary laws and
encompassing definition of "ancestral domains" and "ancestral practices shall be used to resolve disputes involving
lands" which might even include private lands found within said indigenous peoples; and
areas, Sections 3(a) and 3(b) violate the rights of private
landowners.3 "(5) Section 66 which vests on the NCIP the jurisdiction
over all claims and disputes involving rights of the
In addition, petitioners question the provisions of the IPRA indigenous peoples."5
defining the powers and jurisdiction of the NCIP and making
customary law applicable to the settlement of disputes involving Finally, petitioners assail the validity of Rule VII, Part II, Section 1
ancestral domains and ancestral lands on the ground that these of the NCIP Administrative Order No. 1, series of 1998, which
provisions violate the due process clause of the Constitution.4 provides that "the administrative relationship of the NCIP to the
Office of the President is characterized as a lateral but After due deliberation on the petition, the members of the Court
autonomous relationship for purposes of policy and program voted as follows:
coordination." They contend that said Rule infringes upon the
President’s power of control over executive departments under Seven (7) voted to dismiss the petition. Justice Kapunan filed an
Section 17, Article VII of the Constitution.6 opinion, which the Chief Justice and Justices Bellosillo,
Quisumbing, and Santiago join, sustaining the validity of the
Petitioners pray for the following: challenged provisions of R.A. 8371. Justice Puno also filed a
separate opinion sustaining all challenged provisions of the law
"(1) A declaration that Sections 3, 5, 6, 7, 8, 52[I], 57, 58, with the exception of Section 1, Part II, Rule III of NCIP
59, 63, 65 and 66 and other related provisions of R.A. 8371 Administrative Order No. 1, series of 1998, the Rules and
are unconstitutional and invalid; Regulations Implementing the IPRA, and Section 57 of the IPRA
which he contends should be interpreted as dealing with the
"(2) The issuance of a writ of prohibition directing the large-scale exploitation of natural resources and should be read in
Chairperson and Commissioners of the NCIP to cease and conjunction with Section 2, Article XII of the 1987 Constitution. On
desist from implementing the assailed provisions of R.A. the other hand, Justice Mendoza voted to dismiss the petition
8371 and its Implementing Rules; solely on the ground that it does not raise a justiciable controversy
and petitioners do not have standing to question the
"(3) The issuance of a writ of prohibition directing the constitutionality of R.A. 8371.
Secretary of the Department of Environment and Natural
Resources to cease and desist from implementing Seven (7) other members of the Court voted to grant the petition.
Department of Environment and Natural Resources Justice Panganiban filed a separate opinion expressing the view
Circular No. 2, series of 1998; that Sections 3 (a)(b), 5, 6, 7 (a)(b), 8, and related provisions of
R.A. 8371 are unconstitutional. He reserves judgment on the
"(4) The issuance of a writ of prohibition directing the constitutionality of Sections 58, 59, 65, and 66 of the law, which
Secretary of Budget and Management to cease and desist he believes must await the filing of specific cases by those whose
from disbursing public funds for the implementation of rights may have been violated by the IPRA. Justice Vitug also filed
the assailed provisions of R.A. 8371; and a separate opinion expressing the view that Sections 3(a), 7, and
57 of R.A. 8371 are unconstitutional. Justices Melo, Pardo, Buena,
"(5) The issuance of a writ of mandamus commanding the Gonzaga-Reyes, and De Leon join in the separate opinions of
Secretary of Environment and Natural Resources to Justices Panganiban and Vitug.
comply with his duty of carrying out the State’s
constitutional mandate to control and supervise the As the votes were equally divided (7 to 7) and the necessary
exploration, development, utilization and conservation of majority was not obtained, the case was redeliberated upon.
Philippine natural resources."7 However, after redeliberation, the voting remained the same.
Accordingly, pursuant to Rule 56, Section 7 of the Rules of Civil
Procedure, the petition is DISMISSED.
Attached hereto and made integral parts thereof are the separate labyrinths of its history. This Opinion attempts to interpret IPRA
opinions of Justices Puno, Vitug, Kapunan, Mendoza, and by discovering its soul shrouded by the mist of our history. After
Panganiban. all, the IPRA was enacted by Congress not only to fulfill the
constitutional mandate of protecting the indigenous cultural
SO ORDERED. communities' right to their ancestral land but more
importantly, to correct a grave historical injustice to our
SEPARATE OPINION indigenous people.

PUNO, J.: This Opinion discusses the following:

PRECIS I. The Development of the Regalian Doctrine in the Philippine


Legal System.
A classic essay on the utility of history was written in 1874 by
Friedrich Nietzsche entitled "On the Uses and Disadvantages of A. The Laws of the Indies
History for Life." Expounding on Nietzsche's essay, Judge Richard
Posner1 wrote:2 B. Valenton v. Murciano

"Law is the most historically oriented, or if you like the most C. The Public Land Acts and the Torrens System
backward-looking, the most 'past-dependent,' of the professions.
It venerates tradition, precedent, pedigree, ritual, custom, ancient D. The Philippine Constitutions
practices, ancient texts, archaic terminology, maturity, wisdom,
seniority, gerontocracy, and interpretation conceived of as a II. The Indigenous Peoples Rights Act (IPRA).
method of recovering history. It is suspicious of innovation,
discontinuities, 'paradigm shifts,' and the energy and brashness of A. Indigenous Peoples
youth. These ingrained attitudes are obstacles to anyone who
wants to re-orient law in a more pragmatic direction. But, by the 1. Indigenous Peoples: Their History
same token, pragmatic jurisprudence must come to terms
with history." 2. Their Concept of Land

When Congress enacted the Indigenous Peoples Rights III. The IPRA is a Novel Piece of Legislation.
Act (IPRA), it introduced radical concepts into the Philippine
legal system which appear to collide with settled constitutional A. Legislative History
and jural precepts on state ownership of land and other natural
resources. The sense and subtleties of this law cannot be
IV. The Provisions of the IPRA Do Not Contravene the
appreciated without considering its distinct sociology and the
Constitution.
A. Ancestral domains and ancestral lands are the private natural resources, control and supervision in their
property of indigenous peoples and do not constitute part development and exploitation.
of the land of the public domain.
(a) Section 1, Part II, Rule III of the
1. The right to ancestral domains and ancestral Implementing Rules goes beyond the
lands: how acquired parameters of Section 7(a) of the law on
ownership of ancestral domains and
2. The concept of native title is ultra vires.

(a) Cariño v. Insular Government (b) The small-scale utilization of natural


resources in Section 7 (b) of the IPRA is
(b) Indian Title to land allowed under Paragraph 3, Section 2,
Article XII of the 1987 Consitution.
(c) Why the Cariño doctrine is unique
(c) The large-scale utilization of natural
3. The option of securing a torrens title to the resources in Section 57 of the IPRA may be
ancestral land harmonized with Paragraphs 1 and 4,
Section 2, Article XII of the 1987
B. The right of ownership and possession by the ICCs/IPs Constitution.
to their ancestral domains is a limited form of ownership
and does not include the right to alienate the same. V. The IPRA is a Recognition of Our Active Participation in the
International Indigenous Movement.
1. The indigenous concept of ownership and
customary law DISCUSSION

C. Sections 7 (a), 7 (b) and 57 of the IPRA do not violate I. THE DEVELOPMENT OF THE REGALIAN DOCTRINE IN THE
the Regalian Doctrine enshrined in Section 2, Article XII of PHILIPPINE LEGAL SYSTEM.
the 1987 Constitution.
A. The Laws of the Indies
1. The rights of ICCs/IPs over their ancestral
domains and lands The capacity of the State to own or acquire property is the state's
power of dominium.3 This was the foundation for the early
2. The right of ICCs/IPs to develop lands and Spanish decrees embracing the feudal theory of jura regalia. The
natural resources within the ancestral domains "Regalian Doctrine" or jura regalia is a Western legal concept that
does not deprive the State of ownership over the was first introduced by the Spaniards into the country
through the Laws of the Indies and the Royal Cedulas. The concessions to Spaniards, both military and civilian.5 Private land
Laws of the Indies, i.e., more specifically, Law 14, Title 12, Book 4 titles could only be acquired from the government either by
of the Novisima Recopilacion de Leyes de las Indias, set the policy purchase or by the various modes of land grant from the Crown.6
of the Spanish Crown with respect to the Philippine Islands in the
following manner: The Laws of the Indies were followed by the Ley Hipotecaria, or
the Mortgage Law of 1893.7 The Spanish Mortgage Law
"We, having acquired full sovereignty over the Indies, and all provided for the systematic registration of titles and deeds as well
lands, territories, and possessions not heretofore ceded away by as possessory claims. The law sought to register and tax lands
our royal predecessors, or by us, or in our name, still pertaining to pursuant to the Royal Decree of 1880. The Royal Decree of 1894,
the royal crown and patrimony, it is our will that all lands which or the "Maura Law," was partly an amendment of the Mortgage
are held without proper and true deeds of grant be restored to us Law as well as the Laws of the Indies, as already amended by
as they belong to us, in order that after reserving before all what previous orders and decrees.8 This was the last Spanish land law
to us or to our viceroys, audiencias, and governors may seem promulgated in the Philippines. It required the "adjustment" or
necessary for public squares, ways, pastures, and commons in registration of all agricultural lands, otherwise the lands shall
those places which are peopled, taking into consideration not only revert to the state.
their present condition, but also their future and their probable
increase, and after distributing to the natives what may be Four years later, by the Treaty of Paris of December 10, 1898,
necessary for tillage and pasturage, confirming them in what they Spain ceded to the government of the United States all rights,
now have and giving them more if necessary, all the rest of said interests and claims over the national territory of the Philippine
lands may remain free and unencumbered for us to dispose of as Islands. In 1903, the United States colonial government, through
we may wish. the Philippine Commission, passed Act No. 926, the first Public
Land Act.
We therefore order and command that all viceroys and presidents
of pretorial courts designate at such time as shall to them seem B. Valenton v. Murciano
most expedient, a suitable period within which all possessors of
tracts, farms, plantations, and estates shall exhibit to them and to In 1904, under the American regime, this Court decided the case
the court officers appointed by them for this purpose, their title of Valenton v. Murciano.9
deeds thereto. And those who are in possession by virtue of
proper deeds and receipts, or by virtue of just prescriptive right Valenton resolved the question of which is the better basis for
shall be protected, and all the rest shall be restored to us to be ownership of land: long-time occupation or paper title. Plaintiffs
disposed of at our will."4 had entered into peaceful occupation of the subject land in 1860.
Defendant's predecessor-in-interest, on the other hand,
The Philippines passed to Spain by virtue of "discovery" and purchased the land from the provincial treasurer of Tarlac in
conquest. Consequently, all lands became the exclusive patrimony 1892. The lower court ruled against the plaintiffs on the ground
and dominion of the Spanish Crown. The Spanish Government that they had lost all rights to the land by not objecting to the
took charge of distributing the lands by issuing royal grants and
administrative sale. Plaintiffs appealed the judgment, asserting the occupants of the public lands are required to produce before
that their 30-year adverse possession, as an extraordinary period the authorities named, and within a time to be fixed by them, their
of prescription in the Partidas and the Civil Code, had given them title papers. And those who had good title or showed prescription
title to the land as against everyone, including the State; and that were to be protected in their holdings. It is apparent that it was
the State, not owning the land, could not validly transmit it. not the intention of the law that mere possession for a length of
time should make the possessors the owners of the land
The Court, speaking through Justice Willard, decided the case on possessed by them without any action on the part of the
the basis of "those special laws which from earliest time have authorities."12
regulated the disposition of the public lands in the colonies."10 The
question posed by the Court was: "Did these special laws The preamble stated that all those lands which had not been
recognize any right of prescription as against the State as to these granted by Philip, or in his name, or by the kings who preceded
lands; and if so, to what extent was it recognized?" 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
Prior to 1880, the Court said, there were no laws specifically also ordered that all possessors of agricultural land should exhibit
providing for the disposition of land in the Philippines. However, their title deed, otherwise, the land would be restored to the
it was understood that in the absence of any special law to govern Crown.14
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 The Royal Cedula of October 15, 1754 reinforced
regulations on the subject could be prepared, the authorities of the Recopilacion when it ordered the Crown's principal
the Philippine Islands should follow strictly the Laws of the Indies, subdelegate to issue a general order directing the publication of
the Ordenanza of the Intendentes of 1786, and the Royal Cedula the Crown's instructions:
of 1754.11
"x x x to the end that any and all persons who, since the year 1700,
Quoting the preamble of Law 14, Title 12, Book 4 of and up to the date of the promulgation and publication of said
the Recopilacion de Leyes de las Indias, the court interpreted it order, shall have occupied royal lands, whether or not x x x
as follows: cultivated or tenanted, may x x x appear and exhibit to said
subdelegates the titles and patents by virtue of which said lands
"In the preamble of this law there is, as is seen, a distinct are occupied. x x x. Said subdelegates will at the same time warn
statement that all those lands belong to the Crown which have not the parties interested that in case of their failure to present their
been granted by Philip, or in his name, or by the kings who title deeds within the term designated, without a just and valid
preceded him. This statement excludes the idea that there reason therefor, they will be deprived of and evicted from their
might be lands not so granted, that did not belong to the king. lands, and they will be granted to others."15
It excludes the idea that the king was not still the owner of all
ungranted lands, because some private person had been in the On June 25, 1880, the Crown adopted regulations for the
adverse occupation of them. By the mandatory part of the law all adjustment of lands "wrongfully occupied" by private individuals
in the Philippine Islands. Valenton construed these regulations portions of the public domain of the Philippine Islands, and
together with contemporaneous legislative and executive prescribed the terms and conditions to enable persons to perfect
interpretations of the law, and concluded that plaintiffs' case fared their titles to public lands in the Islands. It also provided for the
no better under the 1880 decree and other laws which followed it, "issuance of patents to certain native settlers upon public lands,"
than it did under the earlier ones. Thus as a general doctrine, the for the establishment of town sites and sale of lots therein, for the
Court stated: completion of imperfect titles, and for the cancellation or
confirmation of Spanish concessions and grants in the Islands." In
"While the State has always recognized the right of the occupant short, the Public Land Act operated on the assumption that title to
to a deed if he proves a possession for a sufficient length of time, public lands in the Philippine Islands remained in the
yet it has always insisted that he must make that proof before government;19 and that the government's title to public land
the proper administrative officers, and obtain from them his sprung from the Treaty of Paris and other subsequent treaties
deed, and until he did that the State remained the absolute between Spain and the United States.20 The term "public land"
owner."16 referred to all lands of the public domain whose title still
remained in the government and are thrown open to private
In conclusion, the Court ruled: "We hold that from 1860 to 1892 appropriation and settlement,21 and excluded the patrimonial
there was no law in force in these Islands by which the plaintiffs property of the government and the friar lands.22
could obtain the ownership of these lands by prescription,
without any action by the State."17Valenton had no rights other Act No. 926 was superseded in 1919 by Act 2874, the second
than those which accrued to mere possession. Murciano, on the Public Land Act. This new law was passed under the Jones Law.
other hand, was deemed to be the owner of the land by virtue of It was more comprehensive in scope but limited the exploitation
the grant by the provincial secretary. In effect, Valenton upheld of agricultural lands to Filipinos and Americans and citizens of
the Spanish concept of state ownership of public land. other countries which gave Filipinos the same privileges.23 After
the passage of the 1935 Constitution, Act 2874 was amended in
As a fitting observation, the Court added that "[t]he policy 1936 by Commonwealth Act No. 141. Commonwealth Act No.
pursued by the Spanish Government from earliest times, 141 remains the present Public Land Law and it is essentially the
requiring settlers on the public lands to obtain title deeds same as Act 2874. The main difference between the two relates to
therefor from the State, has been continued by the American the transitory provisions on the rights of American citizens and
Government in Act No. 926."18 corporations during the Commonwealth period at par with
Filipino citizens and corporations.24
C. The Public Land Acts and the Torrens System
Grants of public land were brought under the operation of the
Act No. 926, the first Public Land Act, was passed in pursuance of Torrens system under Act 496, or the Land Registration Law
the provisions of the the Philippine Bill of 1902. The law governed of 1903. Enacted by the Philippine Commission, Act 496 placed
the disposition of lands of the public domain. It prescribed rules all public and private lands in the Philippines under the Torrens
and regulations for the homesteading, selling, and leasing of system. The law is said to be almost a verbatim copy of the
Massachussetts Land Registration Act of 1898,25 which, in turn,
followed the principles and procedure of the Torrens system of "Sec. 1. All agricultural, timber, and mineral lands of the
registration formulated by Sir Robert Torrens who patterned it public domain, waters, minerals, coal, petroleum, and other
after the Merchant Shipping Acts in South Australia. The Torrens mineral oils, all forces of potential energy, and other natural
system requires that the government issue an official certificate of resources of the Philippines belong to the State, and their
title attesting to the fact that the person named is the owner of the disposition, exploitation, development, or utilization shall be
property described therein, subject to such liens and limited to citizens of the Philippines, or to corporations or
encumbrances as thereon noted or the law warrants or associations at least sixty per centum of the capital of which
reserves.26 The certificate of title is indefeasible and is owned by such citizens, subject to any existing right, grant,
imprescriptible and all claims to the parcel of land are quieted lease, or concession at the time of the inauguration of the
upon issuance of said certificate. This system highly facilitates Government established under this Constitution. Natural
land conveyance and negotiation.27 resources, with the exception of public agricultural land,
shall not be alienated, and no license, concession, or lease for the
D. The Philippine Constitutions exploitation, development, or utilization of any of the natural
resources shall be granted for a period exceeding twenty-five
The Regalian doctrine was enshrined in the 1935 Constitution. years, except as to water rights for irrigation, water supply,
One of the fixed and dominating objectives of the 1935 fisheries, or industrial uses other than the development of water
Constitutional Convention was the nationalization and power, in which cases beneficial use may be the measure and the
conservation of the natural resources of the country.28 There was limit of the grant."
an overwhelming sentiment in the Convention in favor of the
principle of state ownership of natural resources and the The 1973 Constitution reiterated the Regalian doctrine in
adoption of the Regalian doctrine.29 State ownership of natural Section 8, Article XIV on the "National Economy and the
resources was seen as a necessary starting point to secure Patrimony of the Nation," to wit:
recognition of the state's power to control their disposition,
exploitation, development, or utilization.30 The delegates to the "Sec. 8. All lands of the public domain, waters, minerals, coal,
Constitutional Convention very well knew that the concept of petroleum and other mineral oils, all forces of potential
State ownership of land and natural resources was introduced by energy, fisheries, wildlife, and other natural resources of the
the Spaniards, however, they were not certain whether it was Philippines belong to the State. With the exception of
continued and applied by the Americans. To remove all doubts, agricultural, industrial or commercial, residential, and
the Convention approved the provision in the Constitution resettlement lands of the public domain, natural resources
affirming the Regalian doctrine.31 shall not be alienated, and no license, concession, or lease for
the exploration, development, exploitation, or utilization of
Thus, the 1935 Constitution, in Section 1 of Article XIII on any of the natural resources shall be granted for a period
"Conservation and Utilization of Natural Resources," reads as exceeding twenty-five years, renewable for not more than
follows: twenty-five years, except as to water rights for irrigation, water
supply, fisheries, or industrial uses other than the development of
water power, in which cases beneficial use may be the measure Republic Act No. 8371 is entitled "An Act to Recognize, Protect
and the limit of the grant." and Promote the Rights of Indigenous Cultural Communities/
Indigenous Peoples, Creating a National Commission on
The 1987 Constitution reaffirmed the Regalian doctrine in Indigenous Peoples, Establishing Implementing Mechanisms,
Section 2 of Article XII on "National Economy and Patrimony," to Appropriating Funds Therefor, and for Other Purposes." It is
wit: simply known as "The Indigenous Peoples Rights Act of 1997"
or the IPRA.
"Sec. 2. All lands of the public domain, waters, minerals, coal,
petroleum, and other mineral oils, all forces of potential The IPRA recognizes the existence of the indigenous cultural
energy, fisheries, forests or timber, wildlife, flora and fauna, communities or indigenous peoples (ICCs/IPs) as a distinct
and other natural resources are owned by the State. With the sector in Philippine society. It grants these people the
exception of agricultural lands, all other natural resources ownership and possession of their ancestral domains and
shall not be alienated. The exploration, development and ancestral lands, and defines the extent of these lands and
utilization of natural resources shall be under the full control domains. The ownership given is the indigenous concept of
and supervision of the State. The State may directly ownership under customary law which traces its origin to
undertake such activities or it may enter into co-production, native title.
joint venture, or production-sharing agreements with
Filipino citizens, or corporations or associations at least sixty Other rights are also granted the ICCs/IPs, and these are:
per centum of whose capital is owned by such citizens. Such
agreements may be for a period not exceeding twenty-five years, - the right to develop lands and natural resources;
renewable for not more than twenty-five years, and under such
terms and conditions as may be provided by law. In cases of water - the right to stay in the territories;
rights for irrigation, water supply, fisheries, or industrial uses
other than the development of water power, beneficial use may be - the right in case of displacement;
the measure and limit of the grant.
- the right to safe and clean air and water;
x x x."
- the right to claim parts of reservations;
Simply stated, all lands of the public domain as well as
all natural resources enumerated therein, whether on public or - the right to resolve conflict;32
private land, belong to the State. It is this concept of State
ownership that petitioners claim is being violated by the
- the right to ancestral lands which include
IPRA.
a. the right to transfer land/property to/among
II. THE INDIGENOUS PEOPLES RIGHTS ACT.
members of the same ICCs/IPs, subject to
customary laws and traditions of the community Any person who violates any of the provisions of the Act such as,
concerned; but not limited to, unauthorized and/or unlawful intrusion upon
ancestral lands and domains shall be punished in accordance with
b. the right to redemption for a period not customary laws or imprisoned from 9 months to 12 years and/or
exceeding 15 years from date of transfer, if the fined from P100,000.00 to P500,000.00 and obliged to pay
transfer is to a non-member of the ICC/IP and is damages.40
tainted by vitiated consent of the ICC/IP, or if the
transfer is for an unconscionable consideration.33 A. Indigenous Peoples

Within their ancestral domains and ancestral lands, the ICCs/IPs The IPRA is a law dealing with a specific group of people, i.e., the
are given the right to self-governance and empowerment,34 social Indigenous Cultural Communities (ICCs) or the Indigenous
justice and human rights,35 the right to preserve and protect their Peoples (IPs). The term "ICCs" is used in the 1987 Constitution
culture, traditions, institutions and community intellectual rights, while that of "IPs" is the contemporary international language in
and the right to develop their own sciences and technologies.36 the International Labor Organization (ILO) Convention 16941 and
the United Nations (UN) Draft Declaration on the Rights of
To carry out the policies of the Act, the law created the National Indigenous Peoples.42
Commission on Indigenous Peoples (NCIP). The NCIP is an
independent agency under the Office of the President and is ICCs/IPs are defined by the IPRA as:
composed of seven (7) Commissioners belonging to ICCs/IPs from
each of the ethnographic areas- Region I and the Cordilleras; "Sec. 3 [h]. Indigenous Cultural Communities/ Indigenous Peoples-
Region II; the rest of Luzon; Island groups including Mindoro, refer to a group of people or homogeneous societies identified by
Palawan, Romblon, Panay and the rest of the Visayas; Northern self-ascription and ascription by others, who have continuously
and Western Mindanao; Southern and Eastern Mindanao; and lived as organized community on communally bounded and
Central Mindanao.37 The NCIP took over the functions of the Office defined territory, and who have, under claims of ownership since
for Northern Cultural Communities and the Office for Southern time immemorial, occupied, possessed and utilized such
Cultural Communities created by former President Corazon territories, sharing common bonds of language, customs,
Aquino which were merged under a revitalized structure.38 traditions and other distinctive cultural traits, or who have,
through resistance to political, social and cultural inroads of
Disputes involving ICCs/IPs are to be resolved under colonization, non-indigenous religions and cultures, became
customary laws and practices. When still unresolved, the historically differentiated from the majority of Filipinos. ICCs/IPs
matter may be brought to the NCIP, which is granted quasi- shall likewise include peoples who are regarded as indigenous on
judicial powers.39 The NCIP's decisions may be appealed to the account of their descent from the populations which inhabited the
Court of Appeals by a petition for review. 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, 2. In Region III- Aetas.
but who may have been displaced from their traditional domains
or who may have resettled outside their ancestral domains." 3. In Region IV- Dumagats of Aurora, Rizal; Remontado of
Aurora, Rizal, Quezon; Alangan or Mangyan, Batangan,
Indigenous Cultural Communities or Indigenous Peoples Buid or Buhid, Hanunuo and Iraya of Oriental and
refer to a group of people or homogeneous societies who Occidental Mindoro; Tadyawan of Occidental Mindoro;
have continuously lived as an organized community on Cuyonon, Palawanon, Tagbanua and Tao't bato of
communally bounded and defined territory. These groups of Palawan.
people have actually occupied, possessed and utilized their
territories under claim of ownership since time immemorial. They 4. In Region V- Aeta of Camarines Norte and Camarines
share common bonds of language, customs, traditions and other Sur; Aeta-Abiyan, Isarog, and Kabihug of Camarines Norte;
distinctive cultural traits, or, they, by their resistance to political, Agta, and Mayon of Camarines Sur; Itom of Albay, Cimaron
social and cultural inroads of colonization, non-indigenous of Sorsogon; and the Pullon of Masbate and Camarines Sur.
religions and cultures, became historically differentiated from the
Filipino majority. ICCs/IPs also include descendants of ICCs/IPs 5. In Region VI- Ati of Negros Occidental, Iloilo and
who inhabited the country at the time of conquest or colonization, Antique, Capiz; the Magahat of Negros Occidental; the
who retain some or all of their own social, economic, cultural and Corolano and Sulod.
political institutions but who may have been displaced from their
traditional territories or who may have resettled outside their 6. In Region VII- Magahat of Negros Oriental and Eskaya of
ancestral domains. Bohol.

1. Indigenous Peoples: Their History 7. In Region IX- the Badjao numbering about 192,000 in
Tawi-Tawi, Zamboanga del Sur; the Kalibugan of Basilan,
Presently, Philippine indigenous peoples inhabit the interiors and the Samal, Subanon and Yakat.
mountains of Luzon, Mindanao, Mindoro, Negros, Samar, Leyte,
and the Palawan and Sulu group of islands. They are composed of 8. Region X- Numbering 1.6 million in Region X alone, the
110 tribes and are as follows: IPs are: the Banwaon, Bukidnon, Matigsalog, Talaanding of
Bukidnon; the Camiguin of Camiguin Island; the Higa-
1. In the Cordillera Autonomous Region- Kankaney, Ibaloi, unon of Agusan del Norte, Agusan del Sur, Bukidnon and
Bontoc, Tinggian or Itneg, Ifugao, Kalinga, Yapayao, Aeta Misamis Occidental; the Tigwahanon of Agusan del Sur,
or Agta or Pugot, and Bago of Ilocos Norte and Pangasinan; Misamis Oriental and and Misamis Occidental, the Manobo
Ibanag of Isabela, Cagayan; Ilongot of Quirino and Nueva of the Agusan provinces, and the Umayamnon of Agusan
Vizcaya; Gaddang of Quirino, Nueva Vizcaya, Itawis of and Bukidnon.
Cagayan; Ivatan of Batanes, Aeta of Cagayan, Quirino and
Isabela.
9. In Region XI- There are about 1,774,065 IPs in Region benign tropical climate and the largely uniform flora and fauna
XI. They are tribes of the Dibabaon, Mansaka of Davao del favored similarities, not differences.47 Life was essentially
Norte; B'laan, Kalagan, Langilad, T'boli and Talaingod of subsistence but not harsh.48
Davao del Sur; Mamamanua of Surigao del Sur; Mandaya
of the Surigao provinces and Davao Oriental; Manobo Blit The early Filipinos had a culture that was basically Malayan in
of South Cotabato; the Mangguangon of Davao and South structure and form. They had languages that traced their origin to
Cotabato; Matigsalog of Davao del Norte and Del Sur; the Austronesian parent-stock and used them not only as media
Tagakaolo, Tasaday and Ubo of South Cotabato; and of daily communication but also as vehicles for the expression of
Bagobo of Davao del sur and South Cotabato. their literary moods.49 They fashioned concepts and beliefs about
the world that they could not see, but which they sensed to be part
10. In Region XII- Ilianen, Tiruray, Maguindanao, Maranao, of their lives.50 They had their own religion and religious beliefs.
Tausug, Yakan/Samal, and Iranon.43 They believed in the immortality of the soul and life after death.
Their rituals were based on beliefs in a ranking deity whom they
How these indigenous peoples came to live in the Philippines called Bathalang Maykapal, and a host of other deities, in the
goes back to as early as 25,000 to 30,000 B.C. environmental spirits and in soul spirits. The early Filipinos
adored the sun, the moon, the animals and birds, for they seemed
Before the time of Western contact, the Philippine archipelago to consider the objects of Nature as something to be respected.
was peopled largely by the Negritos, Indonesians and They venerated almost any object that was close to their daily life,
Malays.44 The strains from these groups eventually gave rise to indicating the importance of the relationship between man and
common cultural features which became the dominant influence the object of nature.51
in ethnic reformulation in the archipelago. Influences from the
Chinese and Indian civilizations in the third or fourth millenium The unit of government was the "barangay," a term that derived
B.C. augmented these ethnic strains. Chinese economic and socio- its meaning from the Malay word "balangay," meaning, a boat,
cultural influences came by way of Chinese porcelain, silk and which transported them to these shores.52 The barangay was
traders. Indian influence found their way into the religious- basically a family-based community and consisted of thirty to one
cultural aspect of pre-colonial society.45 hundred families. Each barangay was different and ruled by a
chieftain called a "dato." It was the chieftain's duty to rule and
The ancient Filipinos settled beside bodies of water. Hunting and govern his subjects and promote their welfare and interests. A
food gathering became supplementary activities as reliance on chieftain had wide powers for he exercised all the functions of
them was reduced by fishing and the cultivation of the soil.46 From government. He was the executive, legislator and judge and was
the hinterland, coastal, and riverine communities, our ancestors the supreme commander in time of war.53
evolved an essentially homogeneous culture, a basically
common way of life where nature was a primary Laws were either customary or written. Customary laws were
factor. Community life throughout the archipelago was handed down orally from generation to generation and
influenced by, and responded to, common ecology. The generally 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 Sometime in the 13th century, Islam was introduced to the
chieftain and his elders promulgated from time to time as the archipelago in Maguindanao. The Sultanate of Sulu was
necessity arose.55 The oldest known written body of laws was the established and claimed jurisdiction over territorial areas
Maragtas Code by Datu Sumakwel at about 1250 A.D. Other old represented today by Tawi-tawi, Sulu, Palawan, Basilan and
codes are the Muslim Code of Luwaran and the Principal Code of Zamboanga. Four ethnic groups were within this jurisdiction:
Sulu.56 Whether customary or written, the laws dealt with various Sama, Tausug, Yakan and Subanon.62 The Sultanate of
subjects, such as inheritance, divorce, usury, loans, partnership, Maguindanao spread out from Cotabato toward Maranao
crime and punishment, property rights, family relations and territory, now Lanao del Norte and Lanao del Sur.63
adoption. Whenever disputes arose, these were decided
peacefully through a court composed by the chieftain as "judge" The Muslim societies evolved an Asiatic form of feudalism
and the barangay elders as "jury." Conflicts arising between where land was still held in common but was private in
subjects of different barangays were resolved by arbitration in use. This is clearly indicated in the Muslim Code of Luwaran. The
which a board composed of elders from neutral barangays acted Code contains a provision on the lease of cultivated lands. It,
as arbiters.57 however, has no provision for the acquisition, transfer, cession or
sale of land.64
Baranganic society had a distinguishing feature: the absence
of private property in land. The chiefs merely administered the The societies encountered by Magellan and Legaspi therefore
lands in the name of the barangay. The social order was an were primitive economies where most production was geared to
extension of the family with chiefs embodying the higher unity of the use of the producers and to the fulfillment of kinship
the community. Each individual, therefore, participated in the obligations. They were not economies geared to exchange and
community ownership of the soil and the instruments of profit.65 Moreover, the family basis of barangay membership as
production as a member of the barangay.58 This ancient well as of leadership and governance worked to splinter the
communalism was practiced in accordance with the concept of population of the islands into numerous small and separate
mutual sharing of resources so that no individual, regardless of communities.66
status, was without sustenance. Ownership of land was non-
existent or unimportant and the right of usufruct was what When the Spaniards settled permanently in the Philippines
regulated the development of lands.59 Marine resources and in 1565, they found the Filipinos living in barangay
fishing grounds were likewise free to all. Coastal communities settlements scattered along water routes and river
depended for their economic welfare on the kind of fishing banks. One of the first tasks imposed on the missionaries and the
sharing concept similar to those in land encomenderos was to collect all scattered Filipinos together in
communities.60 Recognized leaders, such as the chieftains and a reduccion.67 As early as 1551, the Spanish government assumed
elders, by virtue of their positions of importance, enjoyed some an unvarying solicitous attitude towards the natives.68 The
economic privileges and benefits. But their rights, related to either Spaniards regarded it a sacred "duty to conscience and humanity
land and sea, were subject to their responsibility to protect the to civilize these less fortunate people living in the obscurity of
communities from danger and to provide them with the ignorance" and to accord them the "moral and material
leadership and means of survival.61
advantages" of community life and the "protection and vigilance the Moros or the Muslim communities, and third, were
afforded them by the same laws."69 the infieles or the indigenous communities.75

The Spanish missionaries were ordered to The Indio was a product of the advent of Spanish culture. This
establish pueblos where the church and convent would be class was favored by the Spaniards and was allowed certain status
constructed. All the new Christian converts were required to although below the Spaniards. The Moros and infieles were
construct their houses around the church and the unbaptized regarded as the lowest classes.76
were invited to do the same.70 With the reduccion, the Spaniards
attempted to "tame" the reluctant Filipinos through Christian The Moros and infieles resisted Spanish rule and
indoctrination using the convento/casa real/plaza complex as Christianity. The Moros were driven from Manila and the Visayas
focal point. The reduccion, to the Spaniards, was a "civilizing" to Mindanao; while the infieles, to the hinterlands. The
device to make the Filipinos law-abiding citizens of the Spanish Spaniards did not pursue them into the deep interior. The upland
Crown, and in the long run, to make them ultimately adopt societies were naturally outside the immediate concern of
Hispanic culture and civilization.71 Spanish interest, and the cliffs and forests of the hinterlands were
difficult and inaccessible, allowing the infieles, in effect, relative
All lands lost by the old barangays in the process of pueblo security.77 Thus, the infieles, which were peripheral to colonial
organization as well as all lands not assigned to them and the administration, were not only able to preserve their own culture
pueblos, were now declared to be crown lands or realengas, but also thwarted the Christianization process, separating
belonging to the Spanish king. It was from the realengas that themselves from the newly evolved Christian community.78Their
land grants were made to non-Filipinos.72 own political, economic and social systems were kept constantly
alive and vibrant.
The abrogation of the Filipinos' ancestral rights in land and
the introduction of the concept of public domain were the The pro-Christian or pro-Indio attitude of colonialism brought
most immediate fundamental results of Spanish colonial about a generally mutual feeling of suspicion, fear, and hostility
theory and law.73 The concept that the Spanish king was the between the Christians on the one hand and the non-Christians on
owner of everything of value in the Indies or colonies was the other. Colonialism tended to divide and rule an otherwise
imposed on the natives, and the natives were stripped of culturally and historically related populace through a colonial
their ancestral rights to land.74 system that exploited both the virtues and vices of the Filipinos.79

Increasing their foothold in the Philippines, the Spanish President McKinley, in his instructions to the Philippine
colonialists, civil and religious, classified the Filipinos according Commission of April 7, 1900, addressed the existence of the
to their religious practices and beliefs, and divided them into three infieles:
types . First were the Indios, the Christianized Filipinos, who
generally came from the lowland populations. Second, were "In dealing with the uncivilized tribes of the Islands, the
Commission should adopt the same course followed by
Congress in permitting the tribes of our North American The 1935 Constitution did not carry any policy on the non-
Indians to maintain their tribal organization and Christian Filipinos. The raging issue then was the
government, and under which many of those tribes are now conservation of the national patrimony for the Filipinos.
living in peace and contentment, surrounded by civilization to
which they are unable or unwilling to conform. Such tribal In 1957, the Philippine Congress passed R.A. No. 1888, an "Act to
government should, however, be subjected to wise and firm effectuate in a more rapid and complete manner the economic,
regulation; and, without undue or petty interference, constant and social, moral and political advancement of the non-Christian
active effort should be exercised to prevent barbarous practices Filipinos or national cultural minorities and to render real,
and introduce civilized customs."80 complete, and permanent the integration of all said national
cultural minorities into the body politic, creating the Commission
Placed in an alternative of either letting the natives alone or on National Integration charged with said functions." The law
guiding them in the path of civilization, the American government called for a policy of integration of indigenous peoples into the
chose "to adopt the latter measure as one more in accord with Philippine mainstream and for this purpose created
humanity and with the national conscience."81 the Commission on National Integration (CNI).84 The CNI was
given, more or less, the same task as the BNCT during the
The Americans classified the Filipinos into two: the Christian American regime. The post-independence policy of
Filipinos and the non-Christian Filipinos. The term "non- integration was like the colonial policy of assimilation
Christian" referred not to religious belief, but to a geographical understood in the context of a guardian-ward relationship.85
area, and more directly, "to natives of the Philippine Islands of a
low grade of civilization, usually living in tribal relationship apart The policy of assimilation and integration did not yield the desired
from settled communities."82 result. Like the Spaniards and Americans, government
attempts at integration met with fierce resistance. Since
Like the Spaniards, the Americans pursued a policy of World War II, a tidal wave of Christian settlers from the lowlands
assimilation. In 1903, they passed Act No. 253 creating the of Luzon and the Visayas swamped the highlands and wide open
Bureau of Non-Christian Tribes (BNCT). Under the Department spaces in Mindanao.86 Knowledge by the settlers of the Public
of the Interior, the BNCT's primary task was to conduct Land Acts and the Torrens system resulted in the titling of
ethnographic research among unhispanized Filipinos, including several ancestral lands in the settlers' names. With
those in Muslim Mindanao, with a "special view to determining government initiative and participation, this titling displaced
the most practicable means for bringing about their advancement several indigenous peoples from their lands. Worse, these
in civilization and prosperity." The BNCT was modeled after the peoples were also displaced by projects undertaken by the
bureau dealing with American Indians. The agency took a keen national government in the name of national development.87
anthropological interest in Philippine cultural minorities and
produced a wealth of valuable materials about them.83 It was in the 1973 Constitution that the State adopted the
following provision:
"The State shall consider the customs, traditions, beliefs, and Company (BUSCO). In Agusan del Sur, the National Development
interests of national cultural communities in the formulation and Company was authorized by law in 1979 to take approximately
implementation of State policies."88 40,550 hectares of land that later became the NDC-Guthrie
plantation in Agusan del Sur. Most of the land was possessed by
For the first time in Philippine history, the "non-Christian the Agusan natives.93 Timber concessions, water projects,
tribes" or the "cultural minorities" were addressed by the plantations, mining, and cattle ranching and other projects of the
highest law of the Republic, and they were referred to as national government led not only to the eviction of the indigenous
"cultural communities." More importantly this time, their peoples from their land but also to the reduction and destruction
"uncivilized" culture was given some recognition and their of their natural environment.94
"customs, traditions, beliefs and interests" were to be considered
by the State in the formulation and implementation of State The Aquino government signified a total shift from the policy
policies. President Marcos abolished the CNI and transferred its of integration to one of preservation. Invoking her powers
functions to the Presidential Adviser on National Minorities under the Freedom Constitution, President Aquino created
(PANAMIN). The PANAMIN was tasked to integrate the ethnic the Office of Muslim Affairs, Office for Northern Cultural
groups that sought full integration into the larger community, and Communities and the Office for Southern Cultural
at the same time "protect the rights of those who wish to preserve Communities all under the Office of the President.95
their original lifeways beside the larger community."89 In short,
while still adopting the integration policy, the decree The 1987 Constitution carries at least six (6) provisions
recognized the right of tribal Filipinos to preserve their way which insure the right of tribal Filipinos to preserve their way
of life.90 of life.96 This Constitution goes further than the 1973
Constitution by expressly guaranteeing the rights of tribal
In 1974, President Marcos promulgated P.D. No. 410, otherwise Filipinos to their ancestral domains and ancestral lands. By
known as the Ancestral Lands Decree. The decree provided for recognizing their right to their ancestral lands and domains,
the issuance of land occupancy certificates to members of the the State has effectively upheld their right to live in a culture
national cultural communities who were given up to 1984 to distinctly their own.
register their claims.91 In 1979, the Commission on the
Settlement of Land Problems was created under E.O. No. 561 2. Their Concept of Land
which provided a mechanism for the expeditious resolution of
land problems involving small settlers, landowners, and tribal Indigenous peoples share distinctive traits that set them apart
Filipinos.92 from the Filipino mainstream. They are non-Christians. They live
in less accessible, marginal, mostly upland areas. They have a
Despite the promulgation of these laws, from 1974 to the early system of self-government not dependent upon the laws of the
1980's, some 100,000 Kalingas and Bontoks of the Cordillera central administration of the Republic of the Philippines. They
region were displaced by the Chico River dam project of the follow ways of life and customs that are perceived as different
National Power Corporation (NPC). The Manobos of Bukidnon from those of the rest of the population.97 The kind of response the
saw their land bulldozed by the Bukidnon Sugar Industries
indigenous peoples chose to deal with colonial threat worked well in team occupation like hunting, foraging for forest products, and
to their advantage by making it difficult for Western concepts and swidden farming found it natural that forest areas, swidden farms,
religion to erode their customs and traditions. The "infieles orchards, pasture and burial grounds should be communally-
societies" which had become peripheral to colonial owned.102 For the Kalingas, everybody has a common right to a
administration, represented, from a cultural perspective, a much common economic base. Thus, as a rule, rights and obligations to
older base of archipelagic culture. The political systems were still the land are shared in common.
structured on the patriarchal and kinship oriented arrangement
of power and authority. The economic activities were governed by Although highly bent on communal ownership, customary
the concepts of an ancient communalism and mutual help. The law on land also sanctions individual ownership. The
social structure which emphasized division of labor and residential lots and terrace rice farms are governed by a limited
distinction of functions, not status, was maintained. The cultural system of individual ownership. It is limited because while the
styles and forms of life portraying the varieties of social courtesies individual owner has the right to use and dispose of the property,
and ecological adjustments were kept constantly vibrant.98 he does not possess all the rights of an exclusive and full owner as
defined under our Civil Code.103 Under Kalinga customary law, the
Land is the central element of the indigenous peoples' alienation of individually-owned land is strongly discouraged
existence. There is no traditional concept of permanent, except in marriage and succession and except to meet sudden
individual, land ownership. Among the Igorots, ownership of land financial needs due to sickness, death in the family, or loss of
more accurately applies to the tribal right to use the land or to crops.104Moreover, and to be alienated should first be offered to a
territorial control. The people are the secondary owners or clan-member before any village-member can purchase it, and in
stewards of the land and that if a member of the tribe ceases to no case may land be sold to a non-member of the ili.105
work, he loses his claim of ownership, and the land reverts to the
beings of the spirit world who are its true and primary owners. Land titles do not exist in the indigenous peoples' economic
Under the concept of "trusteeship," the right to possess the land and social system. The concept of individual land ownership
does not only belong to the present generation but the future ones under the civil law is alien to them. Inherently colonial in
as well.99 origin, our national land laws and governmental policies
frown upon indigenous claims to ancestral lands. Communal
Customary law on land rests on the traditional belief that no one ownership is looked upon as inferior, if not inexistent.106
owns the land except the gods and spirits, and that those who
work the land are its mere stewards.100 Customary law has a III. THE IPRA IS A NOVEL PIECE OF LEGISLATION.
strong preference for communal ownership, which could
either be ownership by a group of individuals or families who are A. The Legislative History of the IPRA
related by blood or by marriage,101 or ownership by residents of
the same locality who may not be related by blood or marriage. It was to address the centuries-old neglect of the Philippine
The system of communal ownership under customary laws draws indigenous peoples that the Tenth Congress of the Philippines,
its meaning from the subsistence and highly collectivized mode of by their joint efforts, passed and approved R.A. No. 8371, the
economic production. The Kalingas, for instance, who are engaged
Indigenous Peoples Rights Act (IPRA) of 1997. The law was a Senator Flavier further declared:
consolidation of two Bills- Senate Bill No. 1728 and House Bill No.
9125. "The IPs are the offsprings and heirs of the peoples who have first
inhabited and cared for the land long before any central
Principally sponsored by Senator Juan M. Flavier,107 Senate Bill government was established. Their ancestors had territories over
No. 1728 was a consolidation of four proposed measures referred which they ruled themselves and related with other tribes. These
to the Committees on Cultural Communities, Environment and territories- the land- include people, their dwelling, the
Natural Resources, Ways and Means, as well as Finance. It adopted mountains, the water, the air, plants, forest and the animals. This
almost en toto the comprehensive version of Senate Bill Nos. 1476 is their environment in its totality. Their existence as indigenous
and 1486 which was a result of six regional consultations and peoples is manifested in their own lives through political,
one national consultation with indigenous peoples economic, socio-cultural and spiritual practices. The IPs culture is
nationwide.108 At the Second Regular Session of the Tenth the living and irrefutable proof to this.
Congress, Senator Flavier, in his sponsorship speech, gave a
background on the situation of indigenous peoples in the Their survival depends on securing or acquiring land rights;
Philippines, to wit: asserting their rights to it; and depending on it. Otherwise, IPs
shall cease to exist as distinct peoples."110
"The Indigenous Cultural Communities, including the Bangsa
Moro, have long suffered from the dominance and neglect of To recognize the rights of the indigenous peoples effectively,
government controlled by the majority. Massive migration of their Senator Flavier proposed a bill based on two postulates: (1) the
Christian brothers to their homeland shrunk their territory and concept of native title; and (2) the principle of parens patriae.
many of the tribal Filipinos were pushed to the hinterlands.
Resisting the intrusion, dispossessed of their ancestral land and According to Senator Flavier, "[w]hile our legal tradition
with the massive exploitation of their natural resources by the subscribes to the Regalian Doctrine reinstated in Section 2, Article
elite among the migrant population, they became marginalized. XII of the 1987 Constitution," our "decisional laws" and
And the government has been an indispensable party to this jurisprudence passed by the State have "made exception to the
insidious conspiracy against the Indigenous Cultural doctrine." This exception was first laid down in the case
Communities (ICCs). It organized and supported the resettlement of Cariño v. Insular Government where:
of people to their ancestral land, which was massive during the
Commonwealth and early years of the Philippine Republic. "x x x the court has recognized long occupancy of land by an
Pursuant to the Regalian Doctrine first introduced to our system indigenous member of the cultural communities as one of private
by Spain through the Royal Decree of 13 February 1894 or the ownership, which, in legal concept, is termed "native title." This
Maura Law, the government passed laws to legitimize the ruling has not been overturned. In fact, it was affirmed in
wholesale landgrabbing and provide for easy titling or grant of subsequent cases."111
lands to migrant homesteaders within the traditional areas of the
ICCs."109
Following Cariño, the State passed Act No. 926, Act No. 2874, C.A. "This Representation, as early as in the 8th Congress, filed a bill of
No. 141, P.D. 705, P.D. 410, P.D. 1529, R.A. 6734 (the Organic Act similar implications that would promote, recognize the rights of
for the Autonomous Region of Muslim Mindanao). These laws, indigenous cultural communities within the framework of
explicitly or implicitly, and liberally or restrictively, recognized national unity and development.
"native title" or "private right" and the existence of ancestral lands
and domains. Despite the passage of these laws, however, Senator Apart from this, Mr. Speaker, is our obligation, the government's
Flavier continued: obligation to assure and ascertain that these rights shall be well-
preserved and the cultural traditions as well as the indigenous
"x x x the executive department of government since the American laws that remained long before this Republic was established shall
occupation has not implemented the policy. In fact, it was more be preserved and promoted. There is a need, Mr. Speaker, to look
honored in its breach than in its observance, its wanton disregard into these matters seriously and early approval of the substitute
shown during the period unto the Commonwealth and the early bill shall bring into reality the aspirations, the hope and the
years of the Philippine Republic when government organized and dreams of more than 12 million Filipinos that they be considered
supported massive resettlement of the people to the land of the in the mainstream of the Philippine society as we fashion for the
ICCs." year 2000." 114

Senate Bill No. 1728 seeks to genuinely recognize the IPs right to Rep. Andolana stressed that H.B. No. 9125 is based on the policy
own and possess their ancestral land. The bill was prepared also of preservation as mandated in the Constitution. He also
under the principle of parens patriae inherent in the supreme emphasized that the rights of IPs to their land was enunciated
power of the State and deeply embedded in Philippine legal in Cariño v. Insular Government which recognized the fact that
tradition. This principle mandates that persons suffering from they had vested rights prior to the establishment of the Spanish
serious disadvantage or handicap, which places them in a position and American regimes.115
of actual inequality in their relation or transaction with others, are
entitled to the protection of the State. After exhaustive interpellation, House Bill No. 9125, and its
corresponding amendments, was approved on Second
Senate Bill No. 1728 was passed on Third Reading by twenty- Reading with no objections.
one (21) Senators voting in favor and none against, with no
abstention.112 IV. THE PROVISIONS OF THE IPRA DO NOT CONTRAVENE THE
CONSTITUTION.
House Bill No. 9125 was sponsored by Rep. Zapata, Chairman of
the Committee on Cultural Communities. It was originally A. Ancestral Domains and Ancestral Lands are the Private
authored and subsequently presented and defended on the floor Property of Indigenous Peoples and Do Not Constitute Part of
by Rep. Gregorio Andolana of North Cotabato.113 the Land of the Public Domain.

Rep. Andolana's sponsorhip speech reads as follows:


The IPRA grants to ICCs/IPs a distinct kind of ownership over not limited to, residential lots, rice terraces or paddies, private
ancestral domains and ancestral lands. Ancestral lands are not forests, swidden farms and tree lots."
the same as ancestral domains. These are defined in Section 3 [a]
and [b] of the Indigenous Peoples Right Act, viz: Ancestral domains are all areas belonging to ICCs/IPs held
under a claim of ownership, occupied or possessed by ICCs/IPs by
"Sec. 3 a) Ancestral Domains. - Subject to Section 56 hereof, refer themselves or through their ancestors, communally or
to all areas generally belonging to ICCs/IPs comprising lands, individually since time immemorial, continuously until the
inland waters, coastal areas, and natural resources therein, held present, except when interrupted by war, force majeure or
under a claim of ownership, occupied or possessed by ICCs/IPs by displacement by force, deceit, stealth or as a consequence of
themselves or through their ancestors, communally or government projects or any other voluntary dealings with
individually since time immemorial, continuously to the present government and/or private individuals or
except when interrupted by war, force majeure or displacement corporations. Ancestral domains comprise lands, inland
by force, deceit, stealth or as a consequence of government waters, coastal areas, and natural resources therein and
projects or any other voluntary dealings entered into by includes ancestral lands, forests, pasture, residential,
government and private individuals/corporations, and which are agricultural, and other lands individually owned whether
necessary to ensure their economic, social and cultural welfare. It alienable or not, hunting grounds, burial grounds, worship
shall include ancestral lands, forests, pasture, residential, areas, bodies of water, mineral and other natural
agricultural, and other lands individually owned whether resources. They also include lands which may no longer be
alienable and disposable or otherwise, hunting grounds, burial exclusively occupied by ICCs/IPs but from which they
grounds, worship areas, bodies of water, mineral and other traditionally had access to for their subsistence and traditional
natural resources, and lands which may no longer be exclusively activities, particularly the home ranges of ICCs/IPs who are still
occupied by ICCs/IPs but from which they traditionally had access nomadic and/or shifting cultivators.116
to for their subsistence and traditional activities, particularly the
home ranges of ICCs/IPs who are still nomadic and/or shifting Ancestral lands are lands held by the ICCs/IPs under the same
cultivators; conditions as ancestral domains except that these are limited to
lands and that these lands are not merely occupied and possessed
b) Ancestral Lands.- Subject to Section 56 hereof, refers to land but are also utilized by the ICCs/IPs under claims of individual or
occupied, possessed and utilized by individuals, families and clans traditional group ownership. These lands include but are not
who are members of the ICCs/IPs since time immemorial, by limited to residential lots, rice terraces or paddies, private forests,
themselves or through their predecessors-in-interest, under swidden farms and tree lots.117
claims of individual or traditional group ownership, continuously,
to the present except when interrupted by war, force majeure or The procedures for claiming ancestral domains and lands are
displacement by force, deceit, stealth, or as a consequence of similar to the procedures embodied in Department
government projects and other voluntary dealings entered into by Administrative Order (DAO) No. 2, series of 1993, signed by then
government and private individuals/corporations, including, but Secretary of the Department of Environment and Natural
Resources (DENR) Angel Alcala.118 DAO No. 2 allowed the
delineation of ancestral domains by special task forces and The rights of the ICCs/IPs to their ancestral domains and ancestral
ensured the issuance of Certificates of Ancestral Land Claims lands may be acquired in two modes: (1) by native title over
(CALC's) and Certificates of Ancestral Domain Claims (CADC's) to both ancestral lands and domains; or (2) by torrens
IPs. title under the Public Land Act and the Land Registration Act
with respect to ancestral lands only.
The identification and delineation of these ancestral domains and
lands is a power conferred by the IPRA on the National (2) The Concept of Native Title
Commission on Indigenous Peoples (NCIP).119 The guiding
principle in identification and delineation is self- Native title is defined as:
delineation.120 This means that the ICCs/IPs have a decisive role
in determining the boundaries of their domains and in all the "Sec. 3 [l]. Native Title- refers to pre-conquest rights to lands and
activities pertinent thereto.121 domains which, as far back as memory reaches, have been held
under a claim of private ownership by ICCs/IPs, have never been
The procedure for the delineation and recognition of ancestral public lands and are thus indisputably presumed to have been
domains is set forth in Sections 51 and 52 of the IPRA. The held that way since before the Spanish Conquest."126
identification, delineation and certification of ancestral lands is
in Section 53 of said law. Native title refers to ICCs/IPs' preconquest rights to lands and
domains held under a claim of private ownership as far back as
Upon due application and compliance with the procedure memory reaches. These lands are deemed never to have been
provided under the law and upon finding by the NCIP that the public lands and are indisputably presumed to have been held
application is meritorious, the NCIP shall issue a Certificate of that way since before the Spanish Conquest. The rights of ICCs/IPs
Ancestral Domain Title (CADT) in the name of the community to their ancestral domains (which also include ancestral lands)
concerned.122 The allocation of lands within the ancestral by virtue of native title shall be recognized and
domain to any individual or indigenous corporate (family or clan) respected.127 Formal recognition, when solicited by ICCs/IPs
claimants is left to the ICCs/IPs concerned to decide in accordance concerned, shall be embodied in a Certificate of Ancestral Domain
with customs and traditions.123 With respect to ancestral lands Title (CADT), which shall recognize the title of the concerned
outside the ancestral domain, the NCIP issues a Certificate of ICCs/IPs over the territories identified and delineated.128
Ancestral Land Title (CALT).124
Like a torrens title, a CADT is evidence of private ownership of
CADT's and CALT's issued under the IPRA shall be registered by land by native title. Native title, however, is a right of private
the NCIP before the Register of Deeds in the place where the ownership peculiarly granted to ICCs/IPs over their ancestral
property is situated.125 lands and domains. The IPRA categorically declares ancestral
lands and domains held by native title as never to have
(1) Right to Ancestral Domains and Ancestral Lands: How been public land. Domains and lands held under native title are,
Acquired
therefore, indisputably presumed to have never been public lands Cariño took the case to the U.S. Supreme Court.136 On one hand,
and are private. the Philippine government invoked the Regalian doctrine and
contended that Cariño failed to comply with the provisions of the
(a) Cariño v. Insular Government129 Royal Decree of June 25, 1880, which required registration of land
claims within a limited period of time. Cariño, on the other,
The concept of native title in the IPRA was taken from the 1909 asserted that he was the absolute owner of the land jure gentium,
case of Cariño v. Insular Government.130Cariño firmly and that the land never formed part of the public domain.
established a concept of private land title that existed irrespective
of any royal grant from the State. In a unanimous decision written by Justice Oliver Wendell
Holmes, the U.S. Supreme Court held:
In 1903, Don Mateo Cariño, an Ibaloi, sought to register with the
land registration court 146 hectares of land in Baguio "It is true that Spain, in its earlier decrees, embodied the universal
Municipality, Benguet Province. He claimed that this land had feudal theory that all lands were held from the Crown, and
been possessed and occupied by his ancestors since time perhaps the general attitude of conquering nations toward people
immemorial; that his grandfather built fences around the not recognized as entitled to the treatment accorded to those in
property for the holding of cattle and that his father cultivated the same zone of civilization with themselves. It is true, also, that
some parts of the land. Cariño inherited the land in accordance in legal theory, sovereignty is absolute, and that, as against foreign
with Igorot custom. He tried to have the land adjusted under the nations, the United States may assert, as Spain asserted, absolute
Spanish land laws, but no document issued from the Spanish power. But it does not follow that, as against the inhabitants of the
Crown.131 In 1901, Cariño obtained a possessory title to the land Philippines, the United States asserts that Spain had such power.
under the Spanish Mortgage Law.132 The North American colonial When theory is left on one side, sovereignty is a question of
government, however, ignored his possessory title and built a strength, and may vary in degree. How far a new sovereign shall
public road on the land prompting him to seek a Torrens title to insist upon the theoretical relation of the subjects to the head in
his property in the land registration court. While his petition was the past, and how far it shall recognize actual facts, are matters for
pending, a U.S. military reservation133 was proclaimed over his it to decide."137
land and, shortly thereafter, a military detachment was detailed
on the property with orders to keep cattle and trespassers, The U.S. Supreme Court noted that it need not accept Spanish
including Cariño, off the land.134 doctrines. The choice was with the new colonizer. Ultimately, the
matter had to be decided under U.S. law.
In 1904, the land registration court granted Cariño's application
for absolute ownership to the land. Both the Government of the The Cariño decision largely rested on the North American
Philippine Islands and the U.S. Government appealed to the C.F.I. constitutionalist's concept of "due process" as well as the
of Benguet which reversed the land registration court and pronounced policy "to do justice to the natives."138 It was based on
dismissed Cariño's application. The Philippine Supreme the strong mandate extended to the Islands via the Philippine Bill
Court135 affirmed the C.F.I. by applying the Valenton ruling. of 1902 that "No law shall be enacted in said islands which shall
deprive any person of life, liberty, or property without due "Every presumption is and ought to be against the government in
process of law, or deny to any person therein the equal protection a case like the present. It might, perhaps, be proper and
of the laws." The court declared: sufficient to say that when, as far back as testimony or
memory goes, the land has been held by individuals under a
"The acquisition of the Philippines was not like the settlement of claim of private ownership, it will be presumed to have been
the white race in the United States. Whatever consideration may held in the same way from before the Spanish conquest, and
have been shown to the North American Indians, the dominant never to have been public land. Certainly in a case like this, if
purpose of the whites in America was to occupy land. It is obvious there is doubt or ambiguity in the Spanish law, we ought to give
that, however stated, the reason for our taking over the the applicant the benefit of the doubt."140
Philippines was different. No one, we suppose, would deny that,
so far as consistent with paramount necessities, our first object in The court thus laid down the presumption of a certain title held
the internal administration of the islands is to do justice to the (1) as far back as testimony or memory went, and (2) under a
natives, not to exploit their country for private gain. By the claim of private ownership. Land held by this title is presumed to
Organic Act of July 1, 1902, chapter 1369, section 12 (32 Statutes "never have been public land."
at Large, 691), all the property and rights acquired there by the
United States are to be administered 'for the benefit of the Against this presumption, the U.S. Supreme Court analyzed the
inhabitants thereof.' It is reasonable to suppose that the attitude Spanish decrees upheld in the 1904 decision ofValenton v.
thus assumed by the United States with regard to what was Murciano. The U.S. Supreme Court found no proof that the
unquestionably its own is also its attitude in deciding what it will Spanish decrees did not honor native title. On the contrary, the
claim for its own. The same statute made a bill of rights, decrees discussed in Valenton appeared to recognize that the
embodying the safeguards of the Constitution, and, like the natives owned some land, irrespective of any royal grant. The
Constitution, extends those safeguards to all. It provides that 'no Regalian doctrine declared in the preamble of
law shall be enacted in said islands which shall deprive any person the Recopilacion was all "theory and discourse" and it was
of life, liberty, or property without due process of law, or deny to observed that titles were admitted to exist beyond the powers of
any person therein the equal protection of the laws.' In the light of the Crown, viz:
the declaration that we have quoted from section 12, it is hard to
believe that the United States was ready to declare in the next "If the applicant's case is to be tried by the law of Spain, we do
breath that "any person" did not embrace the inhabitants of not discover such clear proof that it was bad by that law as to
Benguet, or that it meant by "property" only that which had satisfy us that he does not own the land. To begin with, the
become such by ceremonies of which presumably a large part of older decrees and laws cited by the counsel for the plaintiff in
the inhabitants never had heard, and that it proposed to treat as error seem to indicate pretty clearly that the natives were
public land what they, by native custom and by long association,- recognized as owning some lands, irrespective of any royal
of the profoundest factors in human thought,- regarded as their grant. In other words, Spain did not assume to convert all the
own."139 native inhabitants of the Philippines into trespassers or even into
tenants at will. For instance, Book 4, title 12, Law 14 of the
The Court went further: the Recopilacion de Leyes de las Indias, cited for a contrary
conclusion in Valenton v. Murciano, 3 Philippine 537, while it observed. Upon a consideration of the whole case we are of the
commands viceroys and others, when it seems proper, to call for opinion that law and justice require that the applicant should be
the exhibition of grants, directs them to confirm those who hold granted what he seeks, and should not be deprived of what, by the
by good grants or justa prescripcion. It is true that it begins by practice and belief of those among whom he lived, was his
the characteristic assertion of feudal overlordship and the property, through a refined interpretation of an almost forgotten
origin of all titles in the King or his predecessors. That was law of Spain."143
theory and discourse. The fact was that titles were admitted
to exist that owed nothing to the powers of Spain beyond this Thus, the court ruled in favor of Cariño and ordered the
recognition in their books." (Emphasis supplied).141 registration of the 148 hectares in Baguio Municipality in his
name.144
The court further stated that the Spanish "adjustment"
proceedings never held sway over unconquered territories. The Examining Cariño closer, the U.S. Supreme Court did not
wording of the Spanish laws were not framed in a manner as to categorically refer to the title it upheld as "native title." It simply
convey to the natives that failure to register what to them has said:
always been their own would mean loss of such land. The
registration requirement was "not to confer title, but simply to "The Province of Benguet was inhabited by a tribe that the
establish it;" it was "not calculated to convey to the mind of an Solicitor-General, in his argument, characterized as a savage
Igorot chief the notion that ancient family possessions were in tribe that never was brought under the civil or military
danger, if he had read every word of it." government of the Spanish Crown. It seems probable, if not
certain, that the Spanish officials would not have granted to
By recognizing this kind of title, the court clearly repudiated the anyone in that province the registration to which formerly
doctrine of Valenton. It was frank enough, however, to admit the the plaintiff was entitled by the Spanish Laws, and which
possibility that the applicant might have been deprived of his land would have made his title beyond question good. Whatever
under Spanish law because of the inherent ambiguity of the may have been the technical position of Spain it does not follow
decrees and concomitantly, the various interpretations which that, in the view of the United States, he had lost all rights and was
may be given them. But precisely because of the ambiguity and a mere trespasser when the present government seized his land.
of the strong "due process mandate" of the Constitution, the The argument to that effect seems to amount to a denial of native
court validated this kind of title.142 This title was sufficient, titles through an important part of the Island of Luzon, at least,
even without government administrative action, and entitled the for the want of ceremonies which the Spaniards would not have
holder to a Torrens certificate. Justice Holmes explained: permitted and had not the power to enforce."145

"It will be perceived that the rights of the applicant under the This is the only instance when Justice Holmes used the term
Spanish law present a problem not without difficulties for courts "native title" in the entire length of the Cariño decision. It is
of a legal tradition. We have deemed it proper on that account to observed that the widespread use of the term "native title" may
notice the possible effect of the change of sovereignty and the act be traced to Professor Owen James Lynch, Jr., a Visiting Professor
of Congress establishing the fundamental principles now to be
at the University of the Philippines College of Law from the Yale "Reference was made in the President's instructions to the
University Law School. In 1982, Prof. Lynch published an article Commission to the policy adopted by the United States for the
in the Philippine Law Journal entitled Native Title, Private Indian Tribes. The methods followed by the Government of the
Right and Tribal Land Law.146 This article was made after Philippine Islands in its dealings with the so-called non-Christian
Professor Lynch visited over thirty tribal communities people is said, on argument, to be practically identical with that
throughout the country and studied the origin and development followed by the United States Government in its dealings with the
of Philippine land laws.147 He discussed Cariño extensively and Indian tribes. Valuable lessons, it is insisted, can be derived by an
used the term "native title" to refer to Cariño's title as discussed investigation of the American-Indian policy.
and upheld by the U.S. Supreme Court in said case.
From the beginning of the United States, and even before, the
(b) Indian Title Indians have been treated as "in a state of pupilage." The
recognized relation between the Government of the United States
In a footnote in the same article, Professor Lynch stated that the and the Indians may be described as that of guardian and ward. It
concept of "native title" as defined by Justice Holmes in Cariño "is is for the Congress to determine when and how the guardianship
conceptually similar to "aboriginal title" of the American shall be terminated. The Indians are always subject to the plenary
Indians.148 This is not surprising, according to Prof. Lynch, authority of the United States.152
considering that during the American regime, government policy
towards ICCs/IPs was consistently made in reference to native x x x.
Americans.149 This was clearly demonstrated in the case of Rubi v.
Provincial Board of Mindoro.150 As to the second point, the facts in the Standing Bear case and the
Rubi case are not exactly identical. But even admitting similarity
In Rubi, the Provincial Board of Mindoro adopted a Resolution of facts, yet it is known to all that Indian reservations do exist in
authorizing the provincial governor to remove the Mangyans from the United States, that Indians have been taken from different
their domains and place them in a permanent reservation in Sitio parts of the country and placed on these reservations, without any
Tigbao, Lake Naujan. Any Mangyan who refused to comply was to previous consultation as to their own wishes, and that, when once
be imprisoned. Rubi and some Mangyans, including one who was so located, they have been made to remain on the reservation for
imprisoned for trying to escape from the reservation, filed for their own good and for the general good of the country. If any
habeas corpus claiming deprivation of liberty under the Board lesson can be drawn from the Indian policy of the United States, it
Resolution. This Court denied the petition on the ground of police is that the determination of this policy is for the legislative and
power. It upheld government policy promoting the idea that a executive branches of the government and that when once so
permanent settlement was the only successful method for decided upon, the courts should not interfere to upset a carefully
educating the Mangyans, introducing civilized customs, planned governmental system. Perhaps, just as many forceful
improving their health and morals, and protecting the public reasons exist for the segregation of the Manguianes in Mindoro as
forests in which they roamed.151 Speaking through Justice existed for the segregation of the different Indian tribes in the
Malcolm, the court said: United States."153
Rubi applied the concept of Indian land grants or reservations in said the court, they found it necessary, in order to avoid
the Philippines. An Indian reservation is a part of the public conflicting settlements and consequent war, to establish the
domain set apart by proper authority for the use and occupation principle that discovery gives title to the government by
of a tribe or tribes of Indians.154 It may be set apart by an act of whose subjects, or by whose authority, the discovery was
Congress, by treaty, or by executive order, but it cannot be made, against all other European governments, which title
established by custom and prescription.155 might be consummated by possession.160 The exclusion of all
other Europeans gave to the nation making the discovery the sole
Indian title to land, however, is not limited to land grants or right of acquiring the soil from the natives and establishing
reservations. It also covers the "aboriginal right of settlements upon it. As regards the natives, the court further
possession or occupancy."156 The aboriginal right of possession stated that:
depends on the actual occupancy of the lands in question by the
tribe or nation as their ancestral home, in the sense that such "Those relations which were to exist between the discoverer and
lands constitute definable territory occupied exclusively by the the natives were to be regulated by themselves. The rights thus
particular tribe or nation.157 It is a right which exists apart from acquired being exclusive, no other power could interpose
any treaty, statute, or other governmental action, although in between them.
numerous instances treaties have been negotiated with Indian
tribes, recognizing their aboriginal possession and delimiting In the establishment of these relations, the rights of the
their occupancy rights or settling and adjusting their original inhabitants were, in no instance, entirely disregarded;
boundaries.158 but were necessarily, to a considerable extent, impaired. They
were admitted to be the rightful occupants of the soil, with a
American jurisprudence recognizes the Indians' or native legal as well as just claim to retain possession of it, and to use
Americans' rights to land they have held and occupied before it according to their own discretion; but their rights to
the "discovery" of the Americas by the Europeans. The complete sovereignty, as independent nations, were necessarily
earliest definitive statement by the U.S. Supreme Court on the diminished, and their power to dispose of the soil at their own
nature of aboriginal title was made in 1823 in Johnson & will, to whomsoever they pleased, was denied by the fundamental
Graham's Lessee v. M'Intosh.159 principle that discovery gave exclusive title to those who made it.

In Johnson, the plaintiffs claimed the land in question under two While the different nations of Europe respected the right of
(2) grants made by the chiefs of two (2) Indian tribes. The U.S. the natives as occupants, they asserted the ultimate
Supreme Court refused to recognize this conveyance, the plaintiffs dominion to be in themselves; and claimed and exercised, as
being private persons. The only conveyance that was recognized a consequence of this ultimate dominion, a power to grant the
was that made by the Indians to the government of the European soil, while yet in possession of the natives. These grants have
discoverer. Speaking for the court, Chief Justice Marshall pointed been understood by all to convey a title to the grantees,
out that the potentates of the old world believed that they had subject only to the Indian right of occupancy."161
made ample compensation to the inhabitants of the new world by
bestowing civilization and Christianity upon them; but in addition,
Thus, the discoverer of new territory was deemed to have Johnson was reiterated in the case of Worcester v. Georgia.165 In
obtained the exclusive right to acquire Indian land and this case, the State of Georgia enacted a law requiring all white
extinguish Indian titles. Only to the discoverer- whether to persons residing within the Cherokee nation to obtain a license or
England, France, Spain or Holland- did this right belong and not to permit from the Governor of Georgia; and any violation of the law
any other nation or private person. The mere acquisition of the was deemed a high misdemeanor. The plaintiffs, who were white
right nonetheless did not extinguish Indian claims to land. Rather, missionaries, did not obtain said license and were thus charged
until the discoverer, by purchase or conquest, exercised its right, with a violation of the Act.
the concerned Indians were recognized as the "rightful occupants
of the soil, with a legal as well as just claim to retain possession of The U.S. Supreme Court declared the Act as unconstitutional for
it." Grants made by the discoverer to her subjects of lands interfering with the treaties established between the United
occupied by the Indians were held to convey a title to the grantees, States and the Cherokee nation as well as the Acts of Congress
subject only to the Indian right of occupancy. Once the discoverer regulating intercourse with them. It characterized the
purchased the land from the Indians or conquered them, it was relationship between the United States government and the
only then that the discoverer gained an absolute title unrestricted Indians as:
by Indian rights.
"The Indian nations were, from their situation, necessarily
The court concluded, in essence, that a grant of Indian lands by dependent on some foreign potentate for the supply of their
Indians could not convey a title paramount to the title of the essential wants, and for their protection from lawless and
United States itself to other parties, saying: injurious intrusions into their country. That power was naturally
termed their protector. They had been arranged under the
"It has never been contended that the Indian title amounted to protection of Great Britain; but the extinguishment of the British
nothing. Their right of possession has never been questioned. power in their neighborhood, and the establishment of that of the
The claim of government extends to the complete ultimate United States in its place, led naturally to the declaration, on the
title, charged with this right of possession, and to the part of the Cherokees, that they were under the protection of the
exclusive power of acquiring that right."162 United States, and of no other power. They assumed the relation
with the United States which had before subsisted with Great
It has been said that the history of America, from its discovery to Britain.
the present day, proves the universal recognition of this
principle.163 This relation was that of a nation claiming and receiving the
protection of one more powerful, not that of individuals
The Johnson doctrine was a compromise. It protected Indian abandoning their national character, and submitting as subjects to
rights and their native lands without having to invalidate the laws of a master."166
conveyances made by the government to many U.S. citizens.164
It was the policy of the U.S. government to treat the Indians as this nation is, by our Constitution and laws, vested in the
nations with distinct territorial boundaries and recognize their government of the United States."168
right of occupancy over all the lands within their domains. Thus:
The discovery of the American continent gave title to the
"From the commencement of our government Congress has government of the discoverer as against all other European
passed acts to regulate trade and intercourse with the Indians; governments. Designated as the naked fee,169 this title was to be
which treat them as nations, respect their rights, and manifest a consummated by possession and was subject to the Indian title of
firm purpose to afford that protection which treaties stipulate. All occupancy. The discoverer acknowledged the Indians' legal and
these acts, and especially that of 1802, which is still in force, just claim to retain possession of the land, the Indians being the
manifestly consider the several Indian nations as distinct original inhabitants of the land. The discoverer nonetheless
political communities, having territorial boundaries, within asserted the exclusive right to acquire the Indians' land- either by
which their authority is exclusive, and having a right to all the purchase, "defensive" conquest, or cession- and in so doing,
lands within those boundaries, which is not only extinguish the Indian title. Only the discoverer could extinguish
acknowledged, but guaranteed by the United States. Indian title because it alone asserted ultimate dominion in itself.
Thus, while the different nations of Europe respected the rights of
x x x. the natives as occupants, they all asserted the ultimate dominion
and title to be in themselves.170
"The Indian nations had always been considered as distinct,
independent political communities, retaining their original As early as the 19th century, it became accepted doctrine that
natural rights, as the undisputed possessors of the soil from although fee title to the lands occupied by the Indians when
time immemorial, with the single exception of that imposed by the colonists arrived became vested in the sovereign- first the
irresistible power, which excluded them from intercourse with discovering European nation and later the original 13 States
any other European potentate than the first discoverer of the and the United States- a right of occupancy in the Indian
coast of the particular region claimed: and this was a restriction tribes was nevertheless recognized. The Federal Government
which those European potentates imposed on themselves, as well continued the policy of respecting the Indian right of occupancy,
as on the Indians. The very term "nation," so generally applied to sometimes called Indian title, which it accorded the protection of
them, means "a people distinct from others." x x x.167 complete ownership.171 But this aboriginal Indian interest simply
constitutes "permission" from the whites to occupy the land, and
The Cherokee nation, then, is a distinct community, occupying its means mere possession not specifically recognized as ownership
own territory, with boundaries accurately described, in which the by Congress.172 It is clear that this right of occupancy based upon
laws of Georgia can have no force, and which the citizens of aboriginal possession is not a property right.173 It is vulnerable to
Georgia have no right to enter but with the assent of the Cherokees affirmative action by the federal government who, as sovereign,
themselves or in conformity with treaties and with the acts of possessed exclusive power to extinguish the right of occupancy at
Congress. The whole intercourse between the United States and will.174 Thus, aboriginal title is not the same as legal
title. Aboriginal title rests on actual, exclusive and continuous use
and occupancy for a long time.175 It entails that land owned by
Indian title must be used within the tribe, subject to its laws and Americans' ownership of these lands,186 the power of the State to
customs, and cannot be sold to another sovereign government nor extinguish these titles has remained firmly entrenched.187
to any citizen.176 Such title as Indians have to possess and occupy
land is in the tribe, and not in the individual Indian; the right of Under the IPRA, the Philippine State is not barred form asserting
individual Indians to share in the tribal property usually depends sovereignty over the ancestral domains and ancestral
upon tribal membership, the property of the tribe generally being lands.188 The IPRA, however, is still in its infancy and any
held in communal ownership.177 similarities between its application in the Philippines vis-à-vis
American Jurisprudence on aboriginal title will depend on the
As a rule, Indian lands are not included in the term "public lands," peculiar facts of each case.
which is ordinarily used to designate such lands as are subject to
sale or other disposal under general laws.178 Indian land which (c) Why the Cariño doctrine is unique
has been abandoned is deemed to fall into the public
domain.179 On the other hand, an Indian reservation is a part of the In the Philippines, the concept of native title first upheld
public domain set apart for the use and occupation of a tribe of in Cariño and enshrined in the IPRA grants ownership, albeit in
Indians.180 Once set apart by proper authority, the reservation limited form, of the land to the ICCs/IPs. Native title presumes that
ceases to be public land, and until the Indian title is extinguished, the land is private and was never public. Cariño is the only case
no one but Congress can initiate any preferential right on, or that specifically and categorically recognizes native title. The
restrict the nation's power to dispose of, them.181 long line of cases citing Cariño did not touch on native title
and the private character of ancestral domains and
The American judiciary struggled for more than 200 years lands. Cariño was cited by the succeeding cases to support the
with the ancestral land claims of indigenous concept of acquisitive prescription under the Public Land Act
Americans.182 And two things are clear. First, aboriginal title is which is a different matter altogether. Under the Public Land
recognized. Second, indigenous property systems are also Act, land sought to be registered must be public agricultural
recognized. From a legal point of view, certain benefits can be land. When the conditions specified in Section 48 [b] of the Public
drawn from a comparison of Philippine IPs to native Land Act are complied with, the possessor of the land is deemed
Americans.183 Despite the similarities between native title and to have acquired, by operation of law, a right to a grant of the
aboriginal title, however, there are at present some misgivings on land.189 The land ceases to be part of the public domain,190 ipso
whether jurisprudence on American Indians may be cited jure,191 and is converted to private property by the mere lapse or
authoritatively in the Philippines. The U.S. recognizes the completion of the prescribed statutory period.
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 It was only in the case of Oh Cho v. Director of Lands192 that the
discoverer. The aboriginal title of ownership is not specifically court declared that the rule that all lands that were not acquired
recognized as ownership by action authorized by Congress.184 The from the government, either by purchase or grant, belong to the
protection of aboriginal title merely guards against encroachment public domain has an exception. This exception would be any land
by persons other than the Federal Government.185 Although there that should have been in the possession of an occupant and of his
are criticisms against the refusal to recognize the native
predecessors-in-interest since time immemorial. It is this kind of through their predecessors-in-interest, have been in continuous
possession that would justify the presumption that the land had possession and occupation of the same in the concept of owner
never been part of the public domain or that it had been private since time immemorial or for a period of not less than thirty (30)
property even before the Spanish conquest.193 Oh Cho, however, years immediately preceding the approval of this Act and
was decided under the provisions of the Public Land Act uncontested by the members of the same ICCs/IPs shall have the
and Cariño was cited to support the applicant's claim of option to secure title to their ancestral lands under the provisions
acquisitive prescription under the said Act. of Commonwealth Act 141, as amended, or the Land Registration
Act 496.
All these years, Cariño had been quoted out of context simply to
justify long, continuous, open and adverse possession in the For this purpose, said individually-owned ancestral lands, which
concept of owner of public agricultural land. It is this long, are agricultural in character and actually used for agricultural,
continuous, open and adverse possession in the concept of owner residential, pasture, and tree farming purposes, including those
of thirty years both for ordinary citizens194 and members of the with a slope of eighteen percent (18%) or more, are hereby
national cultural minorities195 that converts the land from public classified as alienable and disposable agricultural lands.
into private and entitles the registrant to a torrens certificate of
title. The option granted under this section shall be exercised within
twenty (20) years from the approval of this Act."196
(3) The Option of Securing a Torrens Title to the Ancestral
Land Indicates that the Land is Private. ICCs/IPs are given the option to secure a torrens certificate of title
over their individually-owned ancestral lands. This option is
The private character of ancestral lands and domains as laid down limited to ancestral lands only, not domains, and such lands must
in the IPRA is further strengthened by the option given to be individually, not communally, owned.
individual ICCs/IPs over their individually-owned
ancestral lands. For purposes of registration under the Public Ancestral lands that are owned by individual members of
Land Act and the Land Registration Act, the IPRA expressly ICCs/IPs who, by themselves or through their predecessors-in-
converts ancestral land into public agricultural land which interest, have been in continuous possession and occupation of
may be disposed of by the State. The necessary implication is the same in the concept of owner since time immemorial197 or for
that ancestral land is private. It, however, has to be first a period of not less than 30 years, which claims are uncontested
converted to public agricultural land simply for registration by the members of the same ICCs/IPs, may be registered under
purposes. To wit: C.A. 141, otherwise known as the Public Land Act, or Act 496, the
Land Registration Act. For purposes of registration, the
"Sec. 12. Option to Secure Certificate of Title Under Commonwealth individually-owned ancestral lands are classified as alienable and
Act 141, as amended, or the Land Registration Act 496- Individual disposable agricultural lands of the public domain, provided, they
members of cultural communities, with respect to their are agricultural in character and are actually used for agricultural,
individually-owned ancestral lands who, by themselves or residential, pasture and tree farming purposes. These lands shall
be classified as public agricultural lands regardless of whether spirit of the IPRA lies in the distinct concept of ancestral domains
they have a slope of 18% or more. 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
The classification of ancestral land as public agricultural land is in in terms of sheer survival of the ICCs/IPs.201
compliance with the requirements of the Public Land Act and the
Land Registration Act. C.A. 141, the Public Land Act, deals The 1987 Constitution mandates the State to "protect the
specifically with lands of the public domain.198 Its provisions rights of indigenous cultural communities to their ancestral
apply to those lands "declared open to disposition or concession" lands" and that "Congress provide for the applicability of
x x x "which have not been reserved for public or quasi-public customary laws x x x in determining the ownership and
purposes, nor appropriated by the Government, nor in any extent of ancestral domain."202 It is the recognition of the
manner become private property, nor those on which a private ICCs/IPs distinct rights of ownership over their ancestral
right authorized and recognized by this Act or any other valid law domains and lands that breathes life into this constitutional
x x x or which having been reserved or appropriated, have ceased mandate.
to be so."199 Act 496, the Land Registration Act, allows registration
only of private lands and public agricultural lands. Since B. The right of ownership and possession by the ICCs/IPs of
ancestral domains and lands are private, if the ICC/IP wants their ancestral domains is a limited form of ownership and
to avail of the benefits of C.A. 141 and Act 496, the IPRA itself does not include the right to alienate the same.
converts his ancestral land, regardless of whether the land
has a slope of eighteen per cent (18%) or over,200 from Registration under the Public Land Act and Land Registration Act
private to public agricultural land for proper disposition. recognizes the concept of ownership under the civil law. This
ownership is based on adverse possession for a specified period,
The option to register land under the Public Land Act and the Land and harkens to Section 44 of the Public Land Act on administrative
Registration Act has nonetheless a limited period. This option legalization (free patent) of imperfect or incomplete titles and
must be exercised within twenty (20) years from October 29, Section 48 (b) and (c) of the same Act on the judicial confirmation
1997, the date of approval of the IPRA. of imperfect or incomplete titles. Thus:

Thus, ancestral lands and ancestral domains are not part of "Sec. 44. Any natural-born citizen of the Philippines who is not the
the lands of the public domain. They are private and belong owner of more than twenty-four hectares and who since July
to the ICCs/IPs. Section 3 of Article XII on National Economy fourth, 1926 or prior thereto, has continuously occupied and
and Patrimony of the 1987 Constitution classifies lands of the cultivated, either by himself or through his predecessors-in-
public domain into four categories: (a) agricultural, (b) forest or interest, a tract or tracts of agricultural public lands subject to
timber, (c) mineral lands, and (d) national parks. Section 5 of disposition, or who shall have paid the real estate tax thereon
the same Article XII mentions ancestral lands and ancestral while the same has not been occupied by any person shall be
domains but it does not classify them under any of the said four entitled, under the provisions of this chapter, to have a free patent
categories. To classify them as public lands under any one of
the four classes will render the entire IPRA law a nullity. The
issued to him for such tract or tracts of such land not to exceed (c) Members of the national cultural minorities who
twenty-four hectares. by themselves or through their predecessors-in-
interest have been in open, continuous, exclusive and
A member of the national cultural minorities who has notorious possession and occupation of lands of the
continuously occupied and cultivated, either by himself or public domain suitable to agriculture, whether
through his predecessors-in-interest, a tract or tracts of land, disposable or not, under a bona fide claim of
whether disposable or not since July 4, 1955, shall be entitled ownership for at least 30 years shall be entitled to the
to the right granted in the preceding paragraph of this rights granted in sub-section (b) hereof."204
section: Provided, That at the time he files his free patent
application he is not the owner of any real property secured Registration under the foregoing provisions presumes that the
or disposable under the provision of the Public Land Law.203 land was originally public agricultural land but because of adverse
possession since July 4, 1955 (free patent) or at least thirty years
x x x. (judicial confirmation), the land has become private. Open,
adverse, public and continuous possession is sufficient, provided,
"Sec. 48. The following described citizens of the Philippines, the possessor makes proper application therefor. The possession
occupying lands of the public domain or claiming to own any such has to be confirmed judicially or administratively after which a
lands or an interest therein, but whose titles have not been torrens title is issued.
perfected or completed, may apply to the Court of First Instance
of the province where the land is located for confirmation of their A torrens title recognizes the owner whose name appears in the
claims and the issuance of a certificate of title therefor, under the certificate as entitled to all the rights of ownership under the civil
Land Registration Act, to wit: law. The Civil Code of the Philippines defines ownership in
Articles 427, 428 and 429. This concept is based on Roman Law
(a) [perfection of Spanish titles] xxx. which the Spaniards introduced to the Philippines through the
Civil Code of 1889. Ownership, under Roman Law, may be
(b) Those who by themselves or through their exercised over things or rights. It primarily includes the right of
predecessors-in-interest have been in open, continuous, the owner to enjoy and dispose of the thing owned. And the right
exclusive, and notorious possession and occupation of to enjoy and dispose of the thing includes the right to receive from
agricultural lands of the public domain, under a bona fide the thing what it produces,205 the right to consume the thing by its
claim of acquisition or ownership, for at least thirty years use,206 the right to alienate, encumber, transform or even destroy
immediately preceding the filing of the application for the thing owned,207 and the right to exclude from the possession
confirmation of title except when prevented by war or of the thing owned by any other person to whom the owner has
force majeure. These shall be conclusively presumed to not transmitted such thing.208
have performed all the conditions essential to a
Government grant and shall be entitled to a certificate of 1. The Indigenous Concept of Ownership and Customary Law.
title under the provisions of this Chapter.
Ownership of ancestral domains by native title does not entitle the Communal rights over land are not the same as corporate
ICC/IP to a torrens title but to a Certificate of Ancestral Domain rights over real property, much less corporate condominium
Title (CADT). The CADT formally recognizes rights. A corporation can exist only for a maximum of fifty (50)
the indigenous concept of ownership of the ICCs/IPs over their years subject to an extension of another fifty years in any single
ancestral domain. Thus: instance.213 Every stockholder has the right to disassociate
himself from the corporation.214 Moreover, the corporation itself
"Sec. 5. Indigenous concept of ownership.- Indigenous concept of may be dissolved voluntarily or involuntarily.215
ownership sustains the view that ancestral domains and all
resources found therein shall serve as the material bases of their Communal rights to the land are held not only by the present
cultural integrity. The indigenous concept of ownership generally possessors of the land but extends to all generations of the
holds that ancestral domains are the ICCs/IPs private but ICCs/IPs, past, present and future, to the domain. This is the
community property which belongs to all generations and reason why the ancestral domain must be kept within the
therefore cannot be sold, disposed or destroyed. It likewise covers ICCs/IPs themselves. The domain cannot be transferred, sold or
sustainable traditional resource rights." conveyed to other persons. It belongs to the ICCs/IPs as a
community.
The right of ownership and possession of the ICCs/IPs to their
ancestral domains is held under the indigenous concept of Ancestral lands are also held under the indigenous concept of
ownership. This concept maintains the view that ancestral ownership. The lands are communal. These lands, however, may
domains are the ICCs/IPs private but community property. It be transferred subject to the following limitations: (a) only to the
is private simply because it is not part of the public domain. members of the same ICCs/IPs; (b) in accord with customary laws
But its private character ends there. The ancestral domain is and traditions; and (c) subject to the right of redemption of the
owned in common by the ICCs/IPs and not by one particular ICCs/IPs for a period of 15 years if the land was transferred to a
person. The IPRA itself provides that areas within the ancestral non-member of the ICCs/IPs.
domains, whether delineated or not, are presumed to be
communally held.209 These communal rights, however, are not Following the constitutional mandate that "customary law govern
exactly the same as co-ownership rights under the Civil property rights or relations in determining the ownership and
Code.210 Co-ownership gives any co-owner the right to demand extent of ancestral domains,"216 the IPRA, by legislative fiat,
partition of the property held in common. The Civil Code expressly introduces a new concept of ownership. This is a concept that
provides that "no co-owner shall be obliged to remain in the co- has long existed under customary law.217
ownership." Each co-owner may demand at any time the partition
of the thing in common, insofar as his share is concerned.211 To Custom, from which customary law is derived, is also
allow such a right over ancestral domains may be destructive not recognized under the Civil Code as a source of law.218 Some
only of customary law of the community but of the very articles of the Civil Code expressly provide that custom should be
community itself.212 applied in cases where no codal provision is applicable.219 In other
words, in the absence of any applicable provision in the Civil Code, 1. The Rights of ICCs/IPs Over Their Ancestral Domains and
custom, when duly proven, can define rights and liabilities.220 Lands

Customary law is a primary, not secondary, source of rights The IPRA grants the ICCs/IPs several rights over their ancestral
under the IPRA and uniquely applies to ICCs/IPs. Its recognition domains and ancestral lands. Section 7 provides for the rights
does not depend on the absence of a specific provision in the over ancestral domains:
civil law. The indigenous concept of ownership under customary
law is specifically acknowledged and recognized, and coexists "Sec. 7. Rights to Ancestral Domains.- The rights of ownership and
with the civil law concept and the laws on land titling and land possession of ICCs/IPs to their ancestral domains shall be
registration.221 recognized and protected. Such rights include:

To be sure, the indigenous concept of ownership exists even a) Right of Ownership.- The right to claim ownership over
without a paper title. The CADT is merely a "formal recognition" lands, bodies of water traditionally and actually
of native title. This is clear from Section 11 of the IPRA, to wit: occupied by ICCs/IPs, sacred places, traditional
hunting and fishing grounds, and all improvements
"Sec. 11. Recognition of Ancestral Domain Rights.- The rights of made by them at any time within the domains;
ICCs/IPs to their ancestral domains by virtue of Native Title shall
be recognized and respected. Formal recognition, when solicited b) Right to Develop Lands and Natural Resources.- Subject
by ICCs/IPs concerned shall be embodied in a Certificate of to Section 56 hereof, the right to develop, control and
Ancestral Domain Title, which shall recognize the title of the use lands and territories traditionally occupied,
concerned ICCs/IPs over the territories identified and owned, or used; to manage and conserve natural
delineated." resources within the territories and uphold the
responsibilities for future generations; to benefit and
The moral import of ancestral domain, native land or being share the profits from allocation and utilization of the
native is "belongingness" to the land, being people of the land- by natural resources found therein; the right to negotiate
sheer force of having sprung from the land since time beyond the terms and conditions for the exploration of
recall, and the faithful nurture of the land by the sweat of one's natural resources in the areas for the purpose of
brow. This is fidelity of usufructuary relation to the land- the ensuring ecological, environmental protection and
possession of stewardship through perduring, intimate tillage, the conservation measures, pursuant to national and
and the mutuality of blessings between man and land; from man, customary laws; the right to an informed and intelligent
care for land; from the land, sustenance for man.222 participation in the formulation and implementation of
any project, government or private, that will affect or
C. Sections 7 (a), 7 (b) and 57 of the IPRA Do Not Violate the impact upon the ancestral domains and to receive just and
Regalian Doctrine Enshrined in Section 2, Article XII of the fair compensation for any damages which they may
1987 Constitution. sustain as a result of the project; and the right to effective
measures by the government to prevent any interference "Sec. 8. Rights to Ancestral Lands.- The right of ownership and
with, alienation and encroachment upon these rights;" possession of the ICCs/IPs to their ancestral lands shall be
recognized and protected.
c) Right to Stay in the Territories.- The right to stay in the
territory and not to be removed therefrom. No ICCs/IPs a) Right to transfer land/property.- Such right shall include
will be relocated without their free and prior informed the right to transfer land or property rights to/among
consent, nor through any means other than eminent members of the same ICCs/IPs, subject to customary laws
domain. x x x; and traditions of the community concerned.

d) Right in Case of Displacement.- In case displacement b) Right to Redemption.- In cases where it is shown that the
occurs as a result of natural catastrophes, the State shall transfer of land/property rights by virtue of any
endeavor to resettle the displaced ICCs/IPs in suitable agreement or devise, to a non-member of the concerned
areas where they can have temporary life support ICCs/IPs is tainted by the vitiated consent of the ICCs/IPs,
systems: x x x; or is transferred for an unconscionable consideration or
price, the transferor ICC/IP shall have the right to redeem
e) Right to Regulate the Entry of Migrants.- Right to the same within a period not exceeding fifteen (15) years
regulate the entry of migrant settlers and organizations from the date of transfer."
into their domains;
Section 7 (a) defines the ICCs/IPs the right of ownership over
f) Right to Safe and Clean Air and Water.-For this purpose, their ancestral domains which covers (a) lands, (b) bodies of
the ICCs/IPs shall have access to integrated systems for water traditionally and actually occupied by the ICCs/IPs, (c)
the management of their inland waters and air space; sacred places, (d) traditional hunting and fishing grounds, and (e)
all improvements made by them at any time within the domains.
g) Right to Claim Parts of Reservations.- The right to claim The right of ownership includes the following rights: (1) the
parts of the ancestral domains which have been reserved right to develop lands and natural resources; (b) the right to stay
for various purposes, except those reserved and intended in the territories; (c) the right to resettlement in case of
for common and public welfare and service; displacement; (d) the right to regulate the entry of migrants; (e)
the right to safe and clean air and water; (f) the right to claim parts
h) Right to Resolve Conflict.- Right to resolve land conflicts of the ancestral domains as reservations; and (g) the right to
in accordance with customary laws of the area where the resolve conflict in accordance with customary laws.
land is located, and only in default thereof shall the
complaints be submitted to amicable settlement and to Section 8 governs their rights to ancestral lands. Unlike
the Courts of Justice whenever necessary." ownership over the ancestral domains, Section 8 gives the
ICCs/IPs also the right to transfer the land or property rights to
Section 8 provides for the rights over ancestral lands: members of the same ICCs/IPs or non-members thereof. This is in
keeping with the option given to ICCs/IPs to secure a torrens title The Congress may, by law, allow small-scale utilization of
over the ancestral lands, but not to domains. natural resources by Filipino citizens, as well as cooperative
fish farming, with priority to subsistence fishermen and
2. The Right of ICCs/IPs to Develop Lands and Natural Resources fishworkers in rivers, lakes, bays, and lagoons.
Within the Ancestral Domains Does Not Deprive the State of
Ownership Over the Natural Resources and Control and The President may enter into agreements with foreign-owned
Supervision in their Development and Exploitation. corporations involving either technical or financial assistance
for large-scale exploration, development, and utilization of
The Regalian doctrine on the ownership, management and minerals, petroleum, and other mineral oils according to the
utilization of natural resources is declared in Section 2, Article general terms and conditions provided by law, based on real
XII of the 1987 Constitution, viz: contributions to the economic growth and general welfare of the
country. In such agreements, the state shall promote the
"Sec. 2. All lands of the public domain, waters, minerals, coal, development and use of local scientific and technical resources.
petroleum, and other mineral oils, all forces of potential
energy, fisheries, forests or timber, wildlife, flora and fauna, The President shall notify the Congress of every contract entered
and other natural resources are owned by the State. With the into in accordance with this provision, within thirty days from its
exception of agricultural lands, all other natural resources shall execution."223
not be alienated. The exploration, development, and
utilization of natural resources shall be under the full control All lands of the public domain and all natural
and supervision of the State. The State may directly resources- waters, minerals, coal, petroleum, and other mineral
undertake such activities, or, it may enter into co-production, oils, all forces of potential energy, fisheries, forests or timber,
joint venture, or production-sharing agreements with wildlife, flora and fauna, and other natural resources- are owned
Filipino citizens, or corporations or associations at least sixty by the State. The Constitution provides that in the exploration,
per centum of whose capital is owned by such citizens. Such development and utilization of these natural resources, the State
agreements may be for a period not exceeding twenty-five years, exercises full control and supervision, and may undertake the
renewable for not more than twenty-five years, and under such same in four (4) modes:
terms and conditions as may be provided by law. In cases of water
rights for irrigation, water supply, fisheries, water supply, 1. The State may directly undertake such activities; or
fisheries, or industrial uses other than the development of water
power, beneficial use may be the measure and limit of the grant. 2. The State may enter into co-production, joint venture or
production-sharing agreements with Filipino citizens or
The State shall protect the nation's marine wealth in its qualified corporations;
archipelagic waters, territorial sea, and exclusive economic zone,
and reserve its use and enjoyment exclusively to Filipino citizens. 3. Congress may, by law, allow small-scale utilization of
natural resources by Filipino citizens;
4. For the large-scale exploration, development and "Sec. 7. a) Right of ownership- The right to claim ownership over
utilization of minerals, petroleum and other mineral oils, lands, bodies of water traditionally and actually occupied by
the President may enter into agreements with foreign- ICCs/IPs, sacred places, traditional hunting and fishing grounds,
owned corporations involving technical or financial and all improvements made by them at any time within the
assistance. domains;"

As owner of the natural resources, the State is accorded The ICCs/IPs are given the right to claim ownership over "lands,
primary power and responsibility in the exploration, bodies of water traditionally and actually occupied by ICCs/IPs,
development and utilization of these natural resources. The sacred places, traditional hunting and fishing grounds, and all
State may directly undertake the exploitation and development by improvements made by them at any time within the domains." It
itself, or, it may allow participation by the private sector through will be noted that this enumeration does not mention bodies of
co-production,224 joint venture,225 or production-sharing water not occupied by the
agreements. These agreements may be for a period of 25 years,
226 ICCs/IPs, minerals, coal, wildlife, flora and fauna in the
renewable for another 25 years. The State, through Congress, may traditional hunting grounds, fish in the traditional fishing
allow the small-scale utilization of natural resources by Filipino grounds, forests or timber in the sacred places, etc. and all other
citizens. For the large-scale exploration of these resources, natural resources found within the ancestral domains. Indeed,
specifically minerals, petroleum and other mineral oils, the State, the right of ownership under Section 7 (a) does not cover
through the President, may enter into technical and financial "waters, minerals, coal, petroleum and other mineral oils, all
assistance agreements with foreign-owned corporations. forces of potential
energy, fisheries, forests or timber, wildlife, flora and fauna
Under the Philippine Mining Act of 1995, (R.A. 7942) and the and all other natural resources" enumerated in Section 2,
People's Small-Scale Mining Act of 1991 (R.A. 7076) the three Article XII of the 1987 Constitution as belonging to the State.
types of agreements, i.e., co-production, joint venture or
production-sharing, may apply to both large-scale227 and small- The non-inclusion of ownership by the ICCs/IPs over the natural
scale mining.228 "Small-scale mining" refers to "mining activities resources in Section 7(a) complies with the Regalian doctrine.
which rely heavily on manual labor using simple implements and
methods and do not use explosives or heavy mining (a) Section 1, Part II, Rule III of the Implementing Rules Goes
equipment."229 Beyond the Parameters of Sec. 7 (a) of the IPRA And is
Unconstitutional.
Examining the IPRA, there is nothing in the law that grants to
the ICCs/IPs ownership over the natural resources within The Rules Implementing the IPRA230 in Section 1, Part II, Rule III
their ancestral domains. The right of ICCs/IPs in their ancestral reads:
domains includes ownership, but this "ownership" is
expressly defined and limited in Section 7 (a) as: "Section 1. Rights of Ownership. ICCs/IPs have rights of ownership
over lands, waters, and natural resources and all improvements
made by them at any time within the ancestral domains/ lands. (b) The Small-Scale Utilization of Natural Resources In Sec. 7
These rights shall include, but not limited to, the right over the (b) of the IPRA Is Allowed Under Paragraph 3, Section 2 of
fruits, the right to possess, the right to use, right to consume, right Article XII of the Constitution.
to exclude and right to recover ownership, and the rights or
interests over land and natural resources. The right to recover Ownership over natural resources remain with the State and the
shall be particularly applied to lands lost through fraud or any IPRA in Section 7 (b) merely grants the ICCs/IPs the right to
form or vitiated consent or transferred for an unconscionable manage them, viz:
price."
"Sec. 7 (b) Right to Develop Lands and Natural Resources.- Subject
Section 1 of the Implementing Rules gives the ICCs/IPs rights of to Section 56 hereof, right to develop, control and use lands and
ownership over "lands, waters and natural resources." The term territories traditionally occupied, owned, or used; to manage and
"natural resources" is not one of those expressly mentioned in conserve natural resources within the territories and uphold the
Section 7 (a) of the law. Our Constitution and jurisprudence responsibilities for future generations; to benefit and share the
clearly declare that the right to claim ownership over land does profits from allocation and utilization of the natural resources
not necessarily include the right to claim ownership over the found therein; the right to negotiate the terms and conditions for
natural resources found on or under the land.231 The IPRA itself the exploration of natural resources in the areas for the purpose
makes a distinction between land and natural resources. of ensuring ecological, environmental protection and the
Section 7 (a) speaks of the right of ownership only over the conservation measures, pursuant to national and customary
land within the ancestral domain. It is Sections 7 (b) and 57 laws; the right to an informed and intelligent participation in the
of the law that speak of natural resources, and these formulation and implementation of any project, government or
provisions, as shall be discussed later, do not give the private, that will affect or impact upon the ancestral domains and
ICCs/IPs the right of ownership over these resources. to receive just and fair compensation for any damages which they
may sustain as a result of the project; and the right to effective
The constitutionality of Section 1, Part II, Rule III of the measures by the government to prevent any interference with,
Implementing Rules was not specifically and categorically alienation and encroachment upon these rights;"
challenged by petitioners. Petitioners actually assail the
constitutionality of the Implementing Rules in The right to develop lands and natural resources under
general.232Nevertheless, to avoid any confusion in the Section 7 (b) of the IPRA enumerates the following rights:
implementation of the law, it is necessary to declare that the
inclusion of "natural resources" in Section 1, Part II, Rule III of the a) the right to develop, control and use lands and
Implementing Rules goes beyond the parameters of Section 7 (b) territories traditionally occupied;
of the law and is contrary to Section 2, Article XII of the 1987
Constitution. 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 Simply stated, the ICCs/IPs' rights over the natural resources
allocation and utilization of the natural resources found take the form of management or stewardship. For the ICCs/IPs
therein; may use these resources and share in the profits of their
utilization or negotiate the terms for their exploration. At the
d) the right to negotiate the terms and conditions for the same time, however, the ICCs/IPs must ensure that the natural
exploration of natural resources for the purpose of resources within their ancestral domains are conserved for future
ensuring ecological, environmental protection and the generations and that the "utilization" of these resources must not
conservation measures, pursuant to national and harm the ecology and environment pursuant to national and
customary laws; customary laws.234

e) the right to an informed and intelligent participation in The limited rights of "management and use" in Section 7 (b)
the formulation and implementation of any project, must be taken to contemplate small-scale utilization of
government or private, that will affect or impact upon the natural resources as distinguished from large-scale. Small-
ancestral domains and to receive just and fair scale utilization of natural resources is expressly allowed in
compensation for any damages which they may sustain as the third paragraph of Section 2, Article XII of the
a result of the project; Constitution "in recognition of the plight of forest dwellers, gold
panners, marginal fishermen and others similarly situated who
f) the right to effective measures by the government to exploit our natural resources for their daily sustenance and
prevent any interference with, alienation and survival."235 Section 7 (b) also expressly mandates the ICCs/IPs to
encroachment upon these rights.233 manage and conserve these resources and ensure environmental
and ecological protection within the domains, which duties, by
Ownership over the natural resources in the ancestral their very nature, necessarily reject utilization in a large-scale.
domains remains with the State and the ICCs/IPs are merely
granted the right to "manage and conserve" them for future (c) The Large-Scale Utilization of Natural Resources In
generations, "benefit and share" the profits from their Section 57 of the IPRA Is Allowed Under Paragraphs 1 and 4,
allocation and utilization, and "negotiate the terms and Section 2, Article XII of the 1987 Constitution.
conditions for their exploration" for the purpose of "ensuring
ecological and environmental protection and conservation Section 57 of the IPRA provides:
measures." It must be noted that the right to negotiate the terms
and conditions over the natural resources covers only their "Sec. 57. Natural Resources within Ancestral Domains.- The
exploration which must be for the purpose of ensuring ecological ICCs/IPs shall have priority rights in the harvesting,
and environmental protection of, and conservation measures in extraction, development or exploitation of any natural
the ancestral domain. It does not extend to the exploitation and resources within the ancestral domains. A non-member of the
development of natural resources. 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 incorporates by implication the Regalian doctrine, hence, requires
than twenty-five (25) years: Provided, That a formal and written that the provision be read in the light of Section 2, Article XII of
agreement is entered into with the ICCs/IPs concerned or that the the 1987 Constitution. Interpreting Section 2, Article XII of the
community, pursuant to its own decision-making process, has 1987 Constitution237 in relation to Section 57 of IPRA, the
agreed to allow such operation: Provided finally, That the NCIP State, as owner of these natural resources, may directly
may exercise visitorial powers and take appropriate action to undertake the development and exploitation of the natural
safeguard the rights of the ICCs/IPs under the same contract." resources by itself, or in the alternative, it may recognize the
priority rights of the ICCs/IPs as owners of the land on which
Section 57 speaks of the "harvesting, extraction, development the natural resources are found by entering into a co-
or exploitation of natural resources within ancestral domains" production, joint venture, or production-sharing agreement
and "gives the ICCs/IPs 'priority rights' therein." The with them. The State may likewise enter into any of said
terms "harvesting, extraction, development or exploitation" agreements with a non-member of the ICCs/IPs, whether
of any natural resources within the ancestral domains natural or juridical, or enter into agreements with foreign-
obviously refer to large-scale utilization. It is utilization not owned corporations involving either technical or financial
merely for subsistence but for commercial or other extensive use assistance for the large-scale exploration, development and
that require technology other than manual labor.236 The law utilization of minerals, petroleum, and other mineral oils, or
recognizes the probability of requiring a non-member of the allow such non-member to participate in its agreement with
ICCs/IPs to participate in the development and utilization of the the ICCs/IPs. If the State decides to enter into an agreement with
natural resources and thereby allows such participation for a a non-ICC/IP member, the National Commission on Indigenous
period of not more than 25 years, renewable for another 25 years. Peoples (NCIP) shall ensure that the rights of the ICCs/IPs under
This may be done on condition that a formal written agreement the agreement shall be protected. The agreement shall be for a
be entered into by the non-member and members of the ICCs/IPs. period of 25 years, renewable for another 25 years.

Section 57 of the IPRA does not give the ICCs/IPs the right to To reiterate, in the large-scale utilization of natural resources
"manage and conserve" the natural resources. Instead, the law within the ancestral domains, the State, as owner of these
only grants the ICCs/IPs "priority rights" in the development or resources, has four (4) options: (1) it may, of and by itself, directly
exploitation thereof. Priority means giving preference. Having undertake the development and exploitation of the natural
priority rights over the natural resources does not necessarily resources; or (2) it may recognize the priority rights of the
mean ownership rights. The grant of priority rights implies that ICCs/IPs by entering into an agreement with them for such
there is a superior entity that owns these resources and this entity development and exploitation; or (3) it may enter into an
has the power to grant preferential rights over the resources to agreement with a non-member of the ICCs/IPs, whether natural
whosoever itself chooses. or juridical, local or foreign; or (4) it may allow such non-member
to participate in the agreement with the ICCs/IPs.
Section 57 is not a repudiation of the Regalian doctrine. Rather, it
is an affirmation of the said doctrine that all natural resources The rights granted by the IPRA to the ICCs/IPs over the
found within the ancestral domains belong to the State. It natural resources in their ancestral domains merely gives the
ICCs/IPs, as owners and occupants of the land on which the stop or suspend, in accordance with this Act, any project that has
resources are found, the right to the small-scale utilization of not satisfied the requirement of this consultation process."
these resources, and at the same time, a priority in their
large-scale development and exploitation. Section 57 does Concessions, licenses, lease or production-sharing agreements for
not mandate the State to automatically give priority to the the exploitation of natural resources shall not be issued, renewed
ICCs/IPs. The State has several options and it is within its or granted by all departments and government agencies without
discretion to choose which option to pursue. Moreover, there prior certification from the NCIP that the area subject of the
is nothing in the law that gives the ICCs/IPs the right to solely agreement does not overlap with any ancestral domain. The NCIP
undertake the large-scale development of the natural resources certification shall be issued only after a field-based investigation
within their domains. The ICCs/IPs must undertake such shall have been conducted and the free and prior informed
endeavour always under State supervision or control. This written consent of the ICCs/IPs obtained. Non-compliance with
indicates that the State does not lose control and ownership over the consultation requirement gives the ICCs/IPs the right to stop
the resources even in their exploitation. Sections 7 (b) and 57 of or suspend any project granted by any department or government
the law simply give due respect to the ICCs/IPs who, as actual agency.
occupants of the land where the natural resources lie, have
traditionally utilized these resources for their subsistence and As its subtitle suggests, this provision requires as a precondition
survival. for the issuance of any concession, license or agreement over
natural resources, that a certification be issued by the NCIP that
Neither is the State stripped of ownership and control of the the area subject of the agreement does not lie within any ancestral
natural resources by the following provision: domain. The provision does not vest the NCIP with power over the
other agencies of the State as to determine whether to grant or
"Section 59. Certification Precondition.- All departments and other deny any concession or license or agreement. It merely gives the
governmental agencies shall henceforth be strictly enjoined from NCIP the authority to ensure that the ICCs/IPs have been informed
issuing, renewing or granting any concession, license or lease, or of the agreement and that their consent thereto has been
entering into any production-sharing agreement. without prior obtained. Note that the certification applies to agreements over
certification from the NCIP that the area affected does not overlap natural resources that do not necessarily lie within the ancestral
with any ancestral domain. Such certification shall only be issued domains. For those that are found within the said domains,
after a field-based investigation is conducted by the Ancestral Sections 7(b) and 57 of the IPRA apply.
Domains Office of the area concerned: Provided, That no
certification shall be issued by the NCIP without the free and prior V. THE IPRA IS A RECOGNITION OF OUR ACTIVE
informed and written consent of the ICCs/IPs PARTICIPATION IN THE INDIGENOUS INTERNATIONAL
concerned: Provided, further, That no department, government MOVEMENT.
agency or government-owned or -controlled corporation may
issue new concession, license, lease, or production sharing The indigenous movement can be seen as the heir to a history of
agreement while there is a pending application for a anti-imperialism stretching back to prehistoric times. The
CADT: Provided, finally, That the ICCs/IPs shall have the right to
movement received a massive impetus during the 1960's from The 1987 Philippine Constitution formally recognizes the
two sources. First, the decolonization of Asia and Africa brought existence of ICCs/IPs and declares as a State policy the promotion
into the limelight the possibility of peoples controlling their own of their rights within the framework of national unity and
destinies. Second, the right of self-determination was enshrined in development.245 The IPRA amalgamates the Philippine category of
the UN Declaration on Human Rights.238 The rise of the civil rights ICCs with the international category of IPs,246 and is heavily
movement and anti-racism brought to the attention of North influenced by both the International Labor Organization (ILO)
American Indians, Aborigines in Australia, and Maori in New Convention 169 and the United Nations (UN) Draft Declaration on
Zealand the possibility of fighting for fundamental rights and the Rights of Indigenous Peoples.247
freedoms.
ILO Convention No. 169 is entitled the "Convention Concerning
In 1974 and 1975, international indigenous organizations were Indigenous and Tribal Peoples in Independent Countries"248 and
founded,239 and during the 1980's, indigenous affairs were on the was adopted on June 27, 1989. It is based on the Universal
international agenda. The people of the Philippine Cordillera were Declaration of Human Rights, the International Covenant on
the first Asians to take part in the international indigenous Economic, Social and Cultural Rights, the International Covenant
movement. It was the Cordillera People's Alliance that carried out on Civil and Political Rights, and many other international
successful campaigns against the building of the Chico River Dam instruments on the prevention of discrimination.249 ILO
in 1981-82 and they have since become one of the best-organized Convention No. 169 revised the "Convention Concerning the
indigenous bodies in the world.240 Protection and Integration of Indigenous and Other Tribal and
Semi-Tribal Populations in Independent Countries" (ILO No. 107)
Presently, there is a growing concern for indigenous rights in the passed on June 26, 1957. Developments in international law made
international scene. This came as a result of the increased it appropriate to adopt new international standards on
publicity focused on the continuing disrespect for indigenous indigenous peoples "with a view to removing the assimilationist
human rights and the destruction of the indigenous peoples' orientation of the earlier standards," and recognizing the
environment, together with the national governments' inability to aspirations of these peoples to exercise control over their own
deal with the situation.241Indigenous rights came as a result of institutions, ways of life and economic development."250
both human rights and environmental protection, and have
become a part of today's priorities for the international agenda.242 CONCLUSION

International institutions and bodies have realized the necessity The struggle of the Filipinos throughout colonial history had been
of applying policies, programs and specific rules concerning IPs in plagued by ethnic and religious differences. These differences
some nations. The World Bank, for example, first adopted a policy were carried over and magnified by the Philippine government
on IPs as a result of the dismal experience of projects in Latin through the imposition of a national legal order that is mostly
America.243 The World Bank now seeks to apply its current policy foreign in origin or derivation.251 Largely unpopulist, the present
on IPs to some of its projects in Asia. This policy has provided an legal system has resulted in the alienation of a large sector of
influential model for the projects of the Asian Development society, specifically, the indigenous peoples. The histories and
Bank.244 cultures of the indigenes are relevant to the evolution of
Philippine culture and are vital to the understanding of Land and the Environment, ed. Shelton H. Davis, the World Bank
contemporary problems.252 It is through the IPRA that an attempt Discussion Papers, No. 188, pp. 71-72.)
was made by our legislators to understand Filipino society not in
terms of myths and biases but through common experiences in It is established doctrine that a statute should be construed
the course of history. The Philippines became a democracy a whenever possible in harmony with, rather than in violation of,
centennial ago and the decolonization process still continues. If the Constitution.1 The presumption is that the legislature
the evolution of the Filipino people into a democratic society is to intended to enact a valid, sensible and just law and one which
truly proceed democratically, i.e., if the Filipinos as a whole are to operates no further than may be necessary to effectuate the
participate fully in the task of continuing democratization,253 it is specific purpose of the law.2
this Court's duty to acknowledge the presence of indigenous and
customary laws in the country and affirm their co-existence with The challenged provisions of the Indigenous Peoples Rights Act
the land laws in our national legal system. (IPRA) must be construed in view of such presumption of
constitutionality. Further, the interpretation of these provisions
With the foregoing disquisitions, I vote to uphold the should take into account the purpose of the law, which is to give
constitutionality of the Indigenous Peoples Rights Act of 1997. life to the constitutional mandate that the rights of the indigenous
peoples be recognized and protected.
SEPARATE OPINION
The struggle of our indigenous peoples to reclaim their ancestral
KAPUNAN, J.: lands and domains and therefore, their heritage, is not unique. It
is one that they share with the red-skinned "Indians" of the United
You ask if we own the land. . . How can you own that which will States, with the aborigines of Australia, the Maori of New Zealand
outlive you? Only the race own the land because only the race lives and the Sazmi of Sweden, to name a few. Happily, the nations in
forever. To claim a piece of land is a birthright of every man. The which these indigenous peoples live all have enacted measures in
lowly animals claim their place; how much more man? Man is an attempt to heal an oppressive past by the promise of a
born to live. Apu Kabunian, lord of us all, gave us life and placed progressive future. Thus has the international community
us in the world to live human lives. And where shall we obtain life? realized the injustices that have been perpetrated upon the
From the land. To work (the land) is an obligation, not merely a indigenous peoples. This sentiment among the family of nations is
right. In tilling the land, you possess it. And so land is a grace that expressed in a number of documents, the most recent and most
must be nurtured. To enrich it and make it fructify is the eternal comprehensive of which is the Draft United Nations Declaration
exhortation of Apu Kabunian to all his children. Land is sacred. on the Rights of Indigenous Peoples which was adopted by the UN
Land is beloved. From its womb springs …life. Sub-Commission on Prevention of Discrimination and Protection
of Minorities by its resolution on August 26, 1994. Among the
- Macli-ing Dulag, Chieftain of the Kalinga Tribe (quoted in rights recognized by the UN Draft is the restitution of lands,
Ponciano L. Bennagen, "Tribal Filipinos" in Indigenous View of territories and even the resources which the indigenous peoples
have traditionally owned or otherwise occupied or used, and
which have been confiscated, occupied, used or damaged without (b) Common ancestry with the original occupants of these
the free and informed consent of the indigenous peoples. lands;

A Historical Backdrop on the Indigenous Peoples (c) Culture in general, or in specific manifestations (such
as religion, living under a tribal system, membership of an
The term "indigenous" traces its origin to the Old Latin word indu, indigenous community, dress, means of livelihood, life-
meaning "within." In the sense the term has come to be used, it is style, etc.);
nearer in meaning to the Latin word indigenus, which means
"native."3 "Indigenous" refers to that which originated or has been (d) Language (whether used as the only language, as
produced naturally in a particular land, and has not been mother-tongue, as the habitual means of communication
introduced from the outside.4 In international law, the definition at home or in the family, or as the main, preferred,
of what constitutes "indigenous peoples" attains some degree of habitual, general or normal language);
controversy. No definition of the term "indigenous peoples" has
been adopted by the United Nations (UN), although UN practice (e) Residence in certain parts of the country; or in certain
has been guided by a working definition in the 1986 Report of UN regions of the world;
Special Rapporteur Martinez Cobo:5
(f) Other relevant facts.6
Indigenous communities, peoples and nations are those which,
having a historical continuity with pre-invasion and pre-colonial In Philippine constitutional law, the term "indigenous peoples"
societies that developed on their territories, consider themselves pertains to those groups of Filipinos who have retained a high
distinct from other sections of the societies now prevailing in degree of continuity from pre-Conquest culture.7 Philippine legal
those territories, or parts of them. They form at present non- history, however, has not been kind to the indigenous peoples,
dominant sections of society and are determined to preserve, characterized them as "uncivilized,"8 "backward people,"9 with
develop and transmit to future generations their ancestral "barbarous practices"10 and "a low order of intelligence."11
territories, and their ethnic identity, as the basis of their continued
existence as peoples, in accordance with their own cultural Drawing inspiration from both our fundamental law and
patterns, social institutions and legal systems. international law, IPRA now employs the politically-correct
conjunctive term "indigenous peoples/indigenous cultural
This historical continuity may consist of the continuation, for an communities" as follows:
extended period reaching into the present, of one or more of the
following factors: Sec. 3. Definition of Terms.- For purposes of this Act, the following
terms shall mean:
(a) Occupation of ancestral lands, or at least of part of
them; xxx
(h) Indigenous peoples/Indigenous cultural communities. - refer to minorities.13 The extant Philippine national culture is the culture
a group of people or homogenous societies identified by self- of the majority; its indigenous roots were replaced by foreign
ascription and ascription by others, who have continuously lived cultural elements that are decidedly pronounced, if not
as organized community on communally bounded and defined dominant.14 While the culture of the majority reoriented itself to
territory, and who have, under claims of ownership since time Western influence, the culture of the minorities has retained its
immemorial, occupied, possessed and utilized such territories, essentially native character.
sharing common bonds of language, customs, traditions, and
other distinctive cultural traits, or who have, through resistance One of every six Filipinos is a member of an indigenous cultural
to political, social and cultural inroads of colonization, non- community. Around twelve million Filipinos are members of the
indigenous religions and cultures, became historically one hundred and ten or so indigenous cultural
differentiated from the majority of Filipinos. Indigenous peoples communities,15 accounting for more than seventeen per centum of
shall likewise include peoples who are regarded as indigenous on the estimated seventy million Filipinos16 in our country. Sadly, the
account of their descent from the populations which inhabited the indigenous peoples are one of the poorest sectors of Philippine
country at the time of conquest or colonization, or at the time of society. The incidence of poverty and malnutrition among them is
inroads of non-indigenous religions and cultures, or the significantly higher than the national average. The indigenous
establishment of present State boundaries, who retain some or all peoples are also among the most powerless. Perhaps because of
of their own social, economic, cultural and political institutions, their inability to speak the language of law and power, they have
but who may have been displaced from their traditional domains been relegated to the fringes of society. They have little, if any,
or who may have resettled outside their ancestral domains x x x. voice in national politics and enjoy the least protection from
economic exploitation.
Long before the Spaniards set foot in these islands, the indigenous
peoples were already plowing our soil and hunting in our forests. The Constitutional Policies on Indigenous Peoples
The Filipinos of Aeta and Malay stock, who were the original
inhabitants of our archipelago, were, at that time, practicing a The framers of the 1987 Constitution, looking back to the long
native culture. From the time the Spaniards arrived up to the early destitution of our less fortunate brothers, fittingly saw the historic
part of the American regime,12 these native inhabitants resisted opportunity to actualize the ideals of people empowerment and
foreign invasion, relentlessly fighting for their lands. Today, from social justice, and to reach out particularly to the marginalized
the remote uplands of Northern Luzon, to Palawan, Mindoro and sectors of society, including the indigenous peoples. They
Mindanao, the indigenous peoples continue to live on and incorporated in the fundamental law several provisions
cultivate their ancestral lands, the lands of their forefathers. recognizing and protecting the rights and interests of the
indigenous peoples, to wit:
Though Filipinos today are essentially of the same stock as the
indigenous peoples, our national culture exhibits only the last Sec. 22. The State recognizes and promotes the rights of
vestiges of this native culture. Centuries of colonial rule and indigenous peoples within the framework of national unity and
neocolonial domination have created a discernible distinction development.17
between the cultural majority and the group of cultural
Sec. 5. The State, subject to the provisions of this Constitution and IPRA was enacted precisely to implement the foregoing
national development policies and programs, shall protect the constitutional provisions. It provides, among others, that the State
rights of indigenous cultural communities to their ancestral lands shall recognize and promote the rights of indigenous peoples
to ensure their economic, social, and cultural well-being. within the framework of national unity and development, protect
their rights over the ancestral lands and ancestral domains and
The Congress may provide for the applicability of customary laws recognize the applicability of customary laws governing property
governing property rights and relations in determining the rights or relations in determining the ownership and extent of the
ownership and extent of ancestral domains.18 ancestral domains.23 Moreover, IPRA enumerates the civil and
political rights of the indigenous peoples;24 spells out their social
Sec. 1. The Congress shall give the highest priority to the and cultural rights;25 acknowledges a general concept of
enactment of measures that protect and enhance the right of all indigenous property right and recognizes title thereto;26 and
the people to human dignity, reduce social, economic and political creates the NCIP as an independent agency under the Office of the
inequalities, and remove cultural inequities by equitably diffusing President.27
wealth and political power for the common good.
Preliminary Issues
To this end, the State shall regulate the acquisition, ownership, use
and disposition of property and its increments.19 A. The petition presents an actual controversy.

Sec. 6. The State shall apply the principles of agrarian reform or The time-tested standards for the exercise of judicial review are:
stewardship, whenever applicable in accordance with law, in the (1) the existence of an appropriate case; (2) an interest personal
disposition and utilization of other natural resources, including and substantial by the party raising the constitutional question;
lands of the public domain under lease or concession, subject to (3) the plea that the function be exercised at the earliest
prior rights, homestead rights of small settlers, and the rights of opportunity; and (4) the necessity that the constitutional question
indigenous communities to their ancestral lands.20 be passed upon in order to decide the case.28

Sec. 17. The State shall recognize, respect, and protect the rights Courts can only decide actual controversies, not hypothetical
of indigenous cultural communities to preserve and develop their questions or cases.29 The threshold issue, therefore, is whether an
cultures, traditions, and institutions. It shall consider these rights "appropriate case" exists for the exercise of judicial review in the
in the formulation of national plans and policies.21 present case.

Sec. 12. The Congress may create a consultative body to advise the An "actual case or controversy" means an existing case or
President on policies affecting indigenous cultural communities, controversy which is both ripe for resolution and susceptible of
the majority of the members of which shall come from such judicial determination, and that which is not conjectural or
communities.22 anticipatory,30 or that which seeks to resolve hypothetical or
feigned constitutional problems.31 A petition raising a
constitutional question does not present an "actual controversy," violation of which may result only in a "generalized
unless it alleges a legal right or power. Moreover, it must show grievance".36 Yet, in a sense, all citizen’s and taxpayer’s suits are
that a conflict of rights exists, for inherent in the term efforts to air generalized grievances about the conduct of
"controversy" is the presence of opposing views or government and the allocation of power.37
contentions.32 Otherwise, the Court will be forced to resolve
issues which remain unfocused because they lack such In several cases, the Court has adopted a liberal attitude with
concreteness provided when a question emerges precisely framed regard to standing.38 The proper party requirement is considered
from a clash of adversary arguments exploring every aspect of a as merely procedural,39 and the Court has ample discretion with
multi-faceted situation embracing conflicting and demanding regard thereto.40 As early as 1910, the Court in the case of Severino
interests.33 The controversy must also be justiciable; that is, it vs. Governor General 41 held:
must be susceptible of judicial determination.34
x x x When the relief is sought merely for the protection of private
In the case at bar, there exists a live controversy involving a clash rights, the relator must show some personal or special interest in
of legal rights. A law has been enacted, and the Implementing the subject matter, since he is regarded as the real party in interest
Rules and Regulations approved. Money has been appropriated and his right must clearly appear. Upon the other hand, when the
and the government agencies concerned have been directed to question is one of public right and the object of the mandamus
implement the statute. It cannot be successfully maintained that is to procure the enforcement of a public duty, the people are
we should await the adverse consequences of the law in order to regarded as the real party in interest, and the relator at
consider the controversy actual and ripe for judicial resolution. It whose instigation the proceedings are instituted need not
is precisely the contention of the petitioners that the law, on its show that he has any legal or special interest in the result, it
face, constitutes an unconstitutional abdication of State being sufficient to show that he is a citizen and as such
ownership over lands of the public domain and other natural interested in the execution of the laws.42
resources. Moreover, when the State machinery is set into motion
to implement an alleged unconstitutional statute, this Court This Court has recognized that a "public right," or that which
possesses sufficient authority to resolve and prevent imminent belongs to the people at large, may also be the subject of an actual
injury and violation of the constitutional process. case or controversy. In Severino, we ruled that a private citizen
may enforce a "public right" in behalf of other citizens. We opined
B. Petitioners, as citizens and taxpayers, have the requisite standing therein that:
to raise the constitutional questions herein.
… The right which [petitioner] seeks to enforce is not greater or
In addition to the existence of an actual case or controversy, a different from that of any other qualified elector in the
person who assails the validity of a statute must have a personal municipality of Silay. It is also true that the injury which he would
and substantial interest in the case, such that, he has sustained, or suffer in case he fails to obtain the relief sought would not be
will sustain, a direct injury as a result of its greater or different from that of the other electors; but he is
enforcement.35 Evidently, the rights asserted by petitioners as seeking to enforce a public right as distinguished from a private
citizens and taxpayers are held in common by all the citizens, the
right. The real party in interest is the public, or the qualified Thus, the preservation of the integrity and inviolability of the
electors of the town of Silay. Each elector has the same right national patrimony is a proper subject of a citizen’s suit.
and would suffer the same injury. Each elector stands on the
same basis with reference to maintaining a petition whether In addition, petitioners, as taxpayers, possess the right to restrain
or not the relief sought by the relator should be granted.43 officials from wasting public funds through the enforcement of an
unconstitutional statute. It is well-settled that a taxpayer has the
In Tañada v. Tuvera,44 the Court enforced the "public right" to due right to enjoin public officials from wasting public funds through
process and to be informed of matters of public concern. the implementation of an unconstitutional statute,49 and by
necessity, he may assail the validity of a statute appropriating
In Garcia vs. Board of Investments,45 the Court upheld the "public public funds.50 The taxpayer has paid his taxes and contributed to
right" to be heard or consulted on matters of national concern. the public coffers and, thus, may inquire into the manner by which
the proceeds of his taxes are spent. The expenditure by an official
In Oposa v. Factoran,46 the Court recognized the "public right" of of the State for the purpose of administering an invalid law
citizens to "a balanced and healthful ecology which, for the first constitutes a misapplication of such funds.51
time in our nation’s constitutional history, is solemnly
incorporated in the fundamental law."47Mr. Justice (now Chief The IPRA appropriates funds as indicated in its title: "An Act to
Justice) Hilario G. Davide, Jr., delivering the opinion of the Court, Recognize, Protect and Promote the Rights of Indigenous Cultural
stated that: Communities/Indigenous Peoples, Creating the National
Commission on Indigenous Peoples, Establishing Implementing
Such a right belongs to a different category of rights altogether for Mechanisms, Appropriating Funds Therefor, and for Other
it concerns nothing less than self-preservation and self- Purposes." In the same manner, Section 79 authorizes for the
perpetuation-aptly and fittingly stressed by petitioners-the expenditure of public funds by providing that "the amount
advancement of which may even be said to predate all necessary to finance [its] initial implementation shall be charged
governments and constitutions. As a matter of fact, these basic against the current year's appropriation for the Office for
rights need not even be written in the Constitution for they Northern Cultural Communities (the "ONCC") and the Office for
are assumed to exist from the inception of humankind.48 Southern Cultural Communities (the "OSCC"),"52which were
merged as organic offices of the NCIP.53 Thus, the IPRA is a valid
Petitioners, as citizens, possess the "public right" to ensure that subject of a taxpayer’s suit.
the national patrimony is not alienated and diminished in
violation of the Constitution. Since the government, as the C. The petition for prohibition and mandamus is not an improper
guardian of the national patrimony, holds it for the benefit of all remedy.
Filipinos without distinction as to ethnicity, it follows that a
citizen has sufficient interest to maintain a suit to ensure that any Prohibition is an extraordinary writ directed against any tribunal,
grant of concessions covering the national economy and corporation, board, officer or person, whether exercising judicial,
patrimony strictly complies with constitutional requirements. quasi-judicial or ministerial functions, ordering said entity or
person to desist from further proceedings when said proceedings D. Notwithstanding the failure of petitioners to observe the
are without or in excess of said entity’s or person’s jurisdiction, or hierarchy of courts, the Court assumes jurisdiction over the
are accompanied with grave abuse of discretion, and there is no petition in view of the importance of the issues raised therein.
appeal or any other plain, speedy and adequate remedy in the
ordinary course of law.54 Mandamus, on the other hand, is an Between two courts of concurrent original jurisdiction, it is the
extraordinary writ commanding a tribunal, corporation, board, lower court that should initially pass upon the issues of a case.
officer or person, immediately or at some other specified time, to That way, as a particular case goes through the hierarchy of
do the act required to be done, when said entity or person courts, it is shorn of all but the important legal issues or those of
unlawfully neglects the performance of an act which the law first impression, which are the proper subject of attention of the
specifically enjoins as a duty resulting from an office, trust or appellate court. This is a procedural rule borne of experience and
station, or when said entity or person unlawfully excludes another adopted to improve the administration of justice.
from the use and enjoyment of a right or office to which such other
is entitled, and there is no other plain, speedy and adequate This Court has consistently enjoined litigants to respect the
remedy in the ordinary course of law.55 hierarchy of courts. Although this Court has concurrent
jurisdiction with the Regional Trial Courts and the Court of
In this case, the petitioners pray that respondents be restrained Appeals to issue writs of certiorari, prohibition, mandamus, quo
from implementing the challenged provisions of the IPRA and its warranto, habeas corpus and injunction,56 such concurrence does
Implementing Rules and the assailed DENR Circular No. 2, series not give a party unrestricted freedom of choice of court forum.
of 1998, and that the same officials be enjoined from disbursing The resort to this Court’s primary jurisdiction to issue said writs
public funds for the implementation of the said law and rules. shall be allowed only where the redress desired cannot be
They further ask that the Secretary of the DENR be compelled to obtained in the appropriate courts or where exceptional and
perform his duty to control and supervise the activities pertaining compelling circumstances justify such invocation.57 We held
to natural resources. in People v. Cuaresma58 that:

Prohibition will lie to restrain the public officials concerned from A becoming regard for judicial hierarchy most certainly indicates
implementing the questioned provisions of the IPRA and from that petitions for the issuance of extraordinary writs against first
disbursing funds in connection therewith if the law is found to be level ("inferior") courts should be filed with the Regional Trial
unconstitutional. Likewise, mandamus will lie to compel the Court, and those against the latter, with the Court of Appeals. A
Secretary of the DENR to perform his duty to control and direct invocation of the Supreme Court’s original jurisdiction
supervise the exploration, development, utilization and to issue these writs should be allowed only where there are
conservation of the country’s natural resources. Consequently, special and important reasons therefor, clearly and
the petition for prohibition and mandamus is not an improper specifically set out in the petition. This is established policy. It
remedy for the relief sought. is a policy necessary to prevent inordinate demands upon the
Court’s time and attention which are better devoted to those
matters within its exclusive jurisdiction, and to prevent further
over-crowding of the Court’s docket x x x.59 (Emphasis supplied.)
IPRA aims to rectify the historical injustice inflicted upon The State shall protect the nation’s marine wealth in its
indigenous peoples. Its impact upon the lives not only of the archipelagic waters, territorial sea, and exclusive economic zone,
indigenous peoples but also upon the lives of all Filipinos cannot and reserve its use and enjoyment exclusively to Filipino citizens.
be denied. The resolution of this case by the Court at the earliest
opportunity is necessary if the aims of the law are to be achieved. The Congress, may, by law, allow small-scale utilization of natural
This reason is compelling enough to allow petitioners’ invocation resources by Filipino citizens, as well as cooperative fish farming,
of this Court’s jurisdiction in the first instance. with priority to subsistence fishermen and fishworkers in rivers,
lakes, bays and lagoons.
Substantive Issues
The President may enter into agreements with foreign-owned
Primary Issue corporations involving either technical or financial assistance for
large-scale exploration, development and utilization of minerals,
The issue of prime concern raised by petitioners and the Solicitor petroleum, and other mineral oils according to the general terms
General revolves around the constitutionality of certain and conditions provided by law, based on real contributions to the
provisions of IPRA, specifically Sections 3(a), 3(b), 5, 6, 7, 8, 57, 58 economic growth and general welfare of the country. In such
and 59. These provisions allegedly violate Section 2, Article XII of agreements, the State shall promote the development and use of
the Constitution, which states: local scientific and technical resources.

Sec. 2. All lands of the public domain, waters, minerals, coal, The President shall notify the Congress of every contract entered
petroleum, and other mineral oils, all forces of potential energy, into in accordance with this provision, within thirty days from its
fisheries, forests or timber, wildlife, flora and fauna, and other execution.
natural resources are owned by the State. With the exception of
agricultural lands, all other natural resources shall not be Under IPRA, indigenous peoples may obtain the recognition of
alienated. The exploration, development, and utilization of natural their right of ownership60 over ancestral lands and ancestral
resources shall be under the full control and supervision of the domains by virtue of native title.61 The term "ancestral lands"
State. The State may directly undertake such activities, or it may under the statute refers to landsoccupied by individuals, families
enter into co-production, joint venture, or production-sharing and clans who are members of indigenous cultural communities,
agreements with Filipino citizens, or corporations or associations including residential lots, rice terraces or paddies, private forests,
at least sixty per centum of whose capital is owned by such swidden farms and tree lots. These lands are required to have
citizens. Such agreements may be for a period not exceeding been "occupied, possessed and utilized" by them or through their
twenty-five years, renewable for not more than twenty-five years, ancestors "since time immemorial, continuously to the
and under such terms and conditions as may be provided by law. present".62 On the other hand, "ancestral domains" is defined
In cases of water rights for irrigation, water supply, fisheries, or as areas generally belonging to indigenous cultural communities,
industrial uses other than the development of water power, including ancestral lands, forests, pasture, residential and
beneficial use may be the measure and limit of the grant. agricultural lands, hunting grounds, worship areas, and lands no
longer occupied exclusively by indigenous cultural communities petitioners and the Solicitor General advance the following
but to which they had traditional access, particularly the home arguments:
ranges of indigenous cultural communities who are still nomadic
or shifting cultivators. Ancestral domains also include inland First, according to petitioners, the King of Spain under
waters, coastal areas and natural resources therein.63 Again, the international law acquired exclusive dominion over the
same are required to have been "held under a claim of ownership, Philippines by virtue of discovery and conquest. They contend
occupied or possessed by ICCs/IPs, by themselves or through that the Spanish King under the theory of jura regalia, which was
their ancestors, communally or individually since time introduced into Philippine law upon Spanish conquest in 1521,
immemorial, continuously to the present".64 Under Section 56, acquired title to all the lands in the archipelago.
property rights within the ancestral domains already existing
and/or vested upon effectivity of said law "shall be recognized and Second, petitioners and the Solicitor General submit that ancestral
respected." lands and ancestral domains are owned by the State. They invoke
the theory of jura regalia which imputes to the State the
Ownership is the crux of the issue of whether the provisions of ownership of all lands and makes the State the original source of
IPRA pertaining to ancestral lands, ancestral domains, and natural all private titles. They argue that the Philippine State, as successor
resources are unconstitutional. The fundamental question is, who, to Spain and the United States, is the source of any asserted right
between the State and the indigenous peoples, are the rightful of ownership in land.
owners of these properties?
Third, petitioners and the Solicitor General concede that
It bears stressing that a statute should be construed in harmony the Cariño doctrine exists. However, petitioners maintain that the
with, and not in violation, of the fundamental law.65 The reason is doctrine merely states that title to lands of the public domain may
that the legislature, in enacting a statute, is assumed to have acted be acquired by prescription. The Solicitor General, for his part,
within its authority and adhered to the constitutional limitations. argues that the doctrine applies only to alienable lands of the
Accordingly, courts should presume that it was the intention of public domain and, thus, cannot be extended to other lands of the
the legislature to enact a valid, sensible, and just law and one public domain such as forest or timber, mineral lands, and
which operates no further than may be necessary to effectuate the national parks.
specific purpose of the law.66
Fourth, the Solicitor General asserts that even assuming that
A. The provisions of IPRA recognizing the ownership of indigenous native title over ancestral lands and ancestral domains existed by
peoples over the ancestral lands and ancestral domains are not virtue of the Cariño doctrine, such native title was extinguished
unconstitutional. upon the ratification of the 1935 Constitution.

In support of their theory that ancestral lands and ancestral Fifth, petitioners admit that Congress is mandated under Section
domains are part of the public domain and, thus, owned by the 5, Article XII of the Constitution to protect that rights of
State, pursuant to Section 2, Article XII of the Constitution, indigenous peoples to their ancestral lands and ancestral
domains. However, they contend that the mandate is subject to property or propriedad.71 These were rights enjoyed during
Section 2, Article XII and the theory of jura regalia embodied feudal times by the king as the sovereign.
therein. According to petitioners, the recognition and protection
under R.A. 8371 of the right of ownership over ancestral lands and The theory of the feudal system was that title to all lands was
ancestral domains is far in excess of the legislative power and originally held by the King, and while the use of lands was granted
constitutional mandate of Congress. out to others who were permitted to hold them under certain
conditions, the King theoretically retained the title.72 By fiction of
Finally, on the premise that ancestral lands and ancestral domains law, the King was regarded as the original proprietor of all lands,
are owned by the State, petitioners posit that R.A. 8371 violates and the true and only source of title, and from him all lands were
Section 2, Article XII of the Constitution which prohibits the held.73 The theory of jura regalia was therefore nothing more than
alienation of non-agricultural lands of the public domain and a natural fruit of conquest.74
other natural resources.
The Regalian theory, however, does not negate native title to lands
I am not persuaded by these contentions. held in private ownership since time immemorial. In the landmark
case of Cariño vs. Insular Government75 the United States Supreme
Undue reliance by petitioners and the Solicitor General on the Court, reversing the decision76of the pre-war Philippine Supreme
theory of jura regalia is understandable. Not only is the theory Court, made the following pronouncement:
well recognized in our legal system; it has been regarded, almost
with reverence, as the immutable postulate of Philippine land law. x x x Every presumption is and ought to be taken against the
It has been incorporated into our fundamental law and has been Government in a case like the present. It might, perhaps, be proper
recognized by the Court.67 and sufficient to say that when, as far back as testimony or
memory goes, the land has been held by individuals under a
Generally, under the concept of jura regalia, private title to land claim of private ownership, it will be presumed to have been
must be traced to some grant, express or implied, from the held in the same way from before the Spanish conquest, and
Spanish Crown or its successors, the American Colonial never to have been public land. x x x.77 (Emphasis supplied.)
government, and thereafter, the Philippine Republic. The belief
that the Spanish Crown is the origin of all land titles in the The above ruling institutionalized the recognition of the existence
Philippines has persisted because title to land must emanate from of native title to land, or ownership of land by Filipinos by virtue
some source for it cannot issue forth from nowhere.68 of possession under a claim of ownership since time immemorial
and independent of any grant from the Spanish Crown, as an
In its broad sense, the term "jura regalia" refers to royal exception to the theory of jura regalia.
rights,69 or those rights which the King has by virtue of his
prerogatives.70 In Spanish law, it refers to a right which the In Cariño, an Igorot by the name of Mateo Cariño applied for
sovereign has over anything in which a subject has a right of registration in his name of an ancestral land located in Benguet.
The applicant established that he and his ancestors had lived on
the land, had cultivated it, and had used it as far they could cannot be extended to other lands of the public domain such as
remember. He also proved that they had all been recognized as forest or timber, mineral lands, and national parks.
owners, the land having been passed on by inheritance according
to native custom. However, neither he nor his ancestors had any There is no merit in these contentions.
document of title from the Spanish Crown. The government
opposed the application for registration, invoking the theory A proper reading of Cariño would show that the doctrine
of jura regalia. On appeal, the United States Supreme Court held enunciated therein applies only to lands which have always
that the applicant was entitled to the registration of his native title been considered as private, and not to lands of the public
to their ancestral land. domain, whether alienable or otherwise. A distinction must be
made between ownership of land under native title and
Cariño was decided by the U.S. Supreme Court in 1909, at a time ownership by acquisitive prescription against the State.
when decisions of the U.S. Court were binding as precedent in our Ownership by virtue of native title presupposes that the land has
jurisdiction.78 We applied the Cariño doctrine in the 1946 case been held by its possessor and his predecessors-in-interest in the
of Oh Cho vs. Director of Lands,79 where we stated that "[a]ll lands concept of an owner since time immemorial. The land is not
that were not acquired from the Government either by purchase acquired from the State, that is, Spain or its successors-in-interest,
or by grant, belong to the public domain, but [a]n exception to the the United States and the Philippine Government. There has been
rule would be any land that should have been in the possession of no transfer of title from the State as the land has been regarded as
an occupant and of his predecessors in interest since time private in character as far back as memory goes. In contrast,
immemorial, for such possession would justify the presumption ownership of land by acquisitive prescription against the State
that the land had never been part of the public domain or that it involves a conversion of the character of the property from
had been private property even before the Spanish conquest."80 alienable public land to private land, which presupposes a
transfer of title from the State to a private person. Since native title
Petitioners however aver that the U.S. Supreme Court’s ruling assumes that the property covered by it is private land and is
in Cariño was premised on the fact that the applicant had deemed never to have been part of the public domain, the Solicitor
complied with the requisites of acquisitive prescription, having General’s thesis that native title under Cariño applies only to lands
established that he and his predecessors-in-interest had been in of the public domain is erroneous. Consequently, the classification
possession of the property since time immemorial. In effect, of lands of the public domain into agricultural, forest or timber,
petitioners suggest that title to the ancestral land applied for by mineral lands, and national parks under the Constitution82 is
Cariño was transferred from the State, as original owner, to Cariño irrelevant to the application of the Cariño doctrine because the
by virtue of prescription. They conclude that the doctrine cannot Regalian doctrine which vests in the State ownership of lands of
be the basis for decreeing "by mere legislative fiat…that the public domain does not cover ancestral lands and ancestral
ownership of vast tracts of land belongs to [indigenous peoples] domains.
without judicial confirmation."81
Legal history supports the Cariño doctrine.
The Solicitor General, for his part, claims that the Cariño doctrine
applies only to alienable lands of the public domain and, as such,
When Spain acquired sovereignty over the Philippines by virtue themselves if attacked, the royal instructions admonished the
of its discovery and occupation thereof in the 16th century and the commander to commit no aggressive act which might arouse
Treaty of Tordesillas of 1494 which it entered into with native hostility.87
Portugal,83 the continents of Asia, the Americas and Africa were
considered as terra nullius although already populated by other Spanish colonial laws recognized and respected Filipino
peoples.84 The discovery and occupation by the European States, landholdings including native land occupancy.88 Thus,
who were then considered as the only members of the the Recopilación de Leyes de las Indias expressly conferred
international community of civilized nations, of lands in the said ownership of lands already held by the natives.89The royal
continents were deemed sufficient to create title under decrees of 1880 and 1894 did not extinguish native title to land in
international law.85 the Philippines. The earlier royal decree, dated June 25, 1880,
provided that all those in "unlawful possession of royal lands"
Although Spain was deemed to have acquired sovereignty over must legalize their possession by means of adjustment
the Philippines, this did not mean that it acquired title to all lands proceedings,90 and within the period specified. The later royal
in the archipelago. By virtue of the colonial laws of Spain, the decree, dated February 13, 1894, otherwise known as the Maura
Spanish Crown was considered to have acquired dominion only Law, declared that titles that were capable of adjustment under
over the unoccupied and unclaimed portions of our islands.86 the royal decree of 1880, but for which adjustment was not
sought, were forfeited. Despite the harsh wording of the Maura
In sending the first expedition to the Philippines, Spain did not Law, it was held in the case of Cariño that the royal decree of 1894
intend to deprive the natives of their property. Miguel Lopez de should not be construed as confiscation of title, but merely as the
Legazpi was under instruction of the Spanish King to do no harm withdrawal of the privilege of registering such title.91
to the natives and to their property. In this regard, an authority on
the early Spanish colonial period in the Philippines wrote: Neither was native title disturbed by the Spanish cession of the
Philippines to the United States, contrary to petitioners’ assertion
The government of [the King of Spain] Philip II regarded the that the US merely succeeded to the rights of Spain, including the
Philippines as a challenging opportunity to avoid a repetition of latter’s rights over lands of the public domain.92 Under the Treaty
the sanguinary conquests of Mexico and Peru. In his written of Paris of December 10, 1898, the cession of the Philippines did
instructions for the Adelantado Legazpi, who commanded the not impair any right to property existing at the time.93 During the
expedition, Philip II envisaged a bloodless pacification of the American colonial regime, native title to land was respected, even
archipelago. This extraordinary document could have been lifted protected. The Philippine Bill of 1902 provided that property and
almost verbatim from the lectures of the Dominican theologian, rights acquired by the US through cession from Spain were to be
Francisco de Vitoria, delivered in the University of Salamanca. The administered for the benefit of the Filipinos.94 In obvious
King instructed Legazpi to inform the natives that the Spaniards adherence to libertarian principles, McKinley’s Instructions, as
had come to do no harm to their persons or to their property. The well as the Philippine Bill of 1902, contained a bill of rights
Spaniards intended to live among them in peace and in friendship embodying the safeguards of the US Constitution. One of these
and "to explain to them the law of Jesus Christ by which they will rights, which served as an inviolable rule upon every division and
be saved." Although the Spanish expedition could defend branch of the American colonial government in the
Philippines,95 was that "no person shall be deprived of life, liberty, through the 1935 Constitution, title to all lands, including
or property without due process of law."96 These vested rights ancestral lands and ancestral domains. While the Solicitor General
safeguarded by the Philippine Bill of 1902 were in turn expressly admits that such a theory would necessarily impair vested rights,
protected by the due process clause of the 1935 Constitution. he reasons out that even vested rights of ownership over ancestral
Resultantly, property rights of the indigenous peoples over their lands and ancestral domains are not absolute and may be
ancestral lands and ancestral domains were firmly established in impaired by the legitimate exercise of police power.
law.
I cannot agree. The text of the provision of the 1935 Constitution
Nonetheless, the Solicitor General takes the view that the vested invoked by the Solicitor General, while embodying the theory
rights of indigenous peoples to their ancestral lands and domains of jura regalia, is too clear for any misunderstanding. It simply
were "abated by the direct act by the sovereign Filipino people of declares that "all agricultural, timber, and mineral lands of the
ratifying the 1935 Constitution."97 He advances the following public domain, waters, minerals, coal, petroleum, and other
arguments: mineral oils, all forces of potential energy, and other natural
resources of the Philippines belong to the State."99 Nowhere does
The Sovereign, which is the source of all rights including it state that certain lands which are "absolutely necessary for
ownership, has the power to restructure the consolidation of social welfare and existence," including those which are not part
rights inherent in ownership in the State. Through the mandate of of the public domain, shall thereafter be owned by the State. If
the Constitutions that have been adopted, the State has wrested there is any room for constitutional construction, the provision
control of those portions of the natural resources it deems should be interpreted in favor of the preservation, rather than
absolutely necessary for social welfare and existence. It has been impairment or extinguishment, of vested rights. Stated otherwise,
held that the State may impair vested rights through a legitimate Section 1, Article XII of the 1935 Constitution cannot be construed
exercise of police power. to mean that vested right which had existed then were
extinguished and that the landowners were divested of their
Vested rights do not prohibit the Sovereign from performing acts lands, all in the guise of "wrest[ing] control of those portions of
not only essential to but determinative of social welfare and the natural resources [which the State] deems absolutely
existence. To allow otherwise is to invite havoc in the established necessary for social welfare and existence." On the contrary, said
social system. x x x Section restated the fundamental rule against the diminution of
existing rights by expressly providing that the ownership of lands
Time-immemorial possession does not create private ownership of the public domain and other natural resources by the State is
in cases of natural resources that have been found from "subject to any existing right, grant, lease, or concessions." The
generation to generation to be critical to the survival of the "existing rights" that were intended to be protected must,
Sovereign and its agent, the State.98 perforce, include the right of ownership by indigenous peoples
over their ancestral lands and domains. The words of the law
Stated simply, the Solicitor General’s argument is that the State, as should be given their ordinary or usual meaning,100 and the term
the source of all titles to land, had the power to re-vest in itself, "existing rights" cannot be assigned an unduly restrictive
definition.
Petitioners concede that Congress is mandated under Section 5, It is readily apparent from the constitutional records that the
Article XII of the 1987 Constitution101to protect the rights of framers of the Constitution did not intend Congress to decide
indigenous peoples to their ancestral lands and ancestral whether ancestral domains shall be public or private property.
domains. Nonetheless, they contend that the recognition and Rather, they acknowledged that ancestral domains shall be
protection under IPRA of the right of ownership of indigenous treated as private property, and that customary laws shall merely
peoples over ancestral lands and ancestral domains are far in determine whether such private ownership is by the entire
excess of the legislative power and constitutional mandate of the indigenous cultural community, or by individuals, families, or
Congress,102since such recognition and protection amount to the clans within the community. The discussion below between
alienation of lands of the public domain, which is proscribed Messrs. Regalado and Bennagen and Mr. Chief Justice Davide, then
under Section 2, Article XII of the Constitution. members of the 1986 Constitutional Commission, is instructive:

Section 5, Article XII of the Constitution expresses the sovereign MR. REGALADO. Thank you, Madame President. May I seek some
intent to "protect the rights of indigenous peoples to their clarifications from either Commissioner Bennagen or
ancestral lands." In its general and ordinary sense, the term Commissioner Davide regarding this phrase "CONGRESS SHALL
"right" refers to any legally enforceable claim.103 It is a power, PROVIDE FOR THE APPLICABILITY OF CUSTOMARY LAWS
privilege, faculty or demand inherent in one person and incident GOVERNING PROPERTY RIGHTS OR RELATIONS in determining
upon another.104 When used in relation to property, "right" the ownership and extent of the ancestral domain," because
includes any interest in or title to an object, or any just and legal ordinarily it is the law on ownership and the extent thereof which
claim to hold, use and enjoy it.105 Said provision in the determine the property rights or relations arising therefrom. On
Constitution cannot, by any reasonable construction, be the other hand, in this proposed amendment the phraseology is
interpreted to exclude the protection of the right of that it is the property rights or relations which shall be used as the
ownership over such ancestral lands. For this reason, Congress basis in determining the ownership and extent of the ancestral
cannot be said to have exceeded its constitutional mandate and domain. I assume there must be a certain difference in the
power in enacting the provisions of IPRA, specifically Sections customary laws and our regular civil laws on property.
7(a) and 8, which recognize the right of ownership of the
indigenous peoples over ancestral lands. MR. DAVIDE. That is exactly the reason, Madam President, why we
will leave it to Congress to make the necessary exception to the
The second paragraph of Section 5, Article XII also grants general law on property relations.
Congress the power to "provide for the applicability of customary
laws governing property rights or relations in determining the MR. REGALADO. I was thinking if Commissioner Bennagen could
ownership and extent of ancestral domains." In light of this give us an example of such a customary law wherein it is the
provision, does Congress have the power to decide whether property rights and relations that determine the ownership and
ancestral domains shall be private property or part of the public the extent of that ownership, unlike the basic fundamental rule
domain? Also, does Congress have the power to determine that it is the ownership and the extent of ownership which
whether the "extent" of ancestral domains shall include the determine the property rights and relations arising therefrom and
natural resources found therein? consequent thereto. Perhaps, these customary laws may have a
different provision or thrust so that we could make the MR. BENNAGEN. Individuals and groups within the ancestral
corresponding suggestions also by way of an amendment. domain. 107 (Emphasis supplied.)

MR. DAVIDE. That is exactly my own perception. It cannot be correctly argued that, because the framers of the
Constitution never expressly mentioned Cariño in their
MR. BENNAGEN. Let me put it this way. deliberations, they did not intend to adopt the concept of native
title to land, or that they were unaware of native title as an
There is a range of customary laws governing certain types of exception to the theory of jura regalia.108 The framers of the
ownership. There would be ownership based on individuals, Constitution, as well as the people adopting it, were presumed to
on clan or lineage, or on community. And the thinking be aware of the prevailing judicial doctrines concerning the
expressed in the consultation is that this should be codified and subject of constitutional provisions, and courts should take these
should be recognized in relation to existing national laws. That is doctrines into consideration in construing the Constitution.109
essentially the concept. 106 (Emphasis supplied.)
Having thus recognized that ancestral domains under the
The intention to treat ancestral domains as private property is Constitution are considered as private property of indigenous
also apparent from the following exchange between Messrs. peoples, the IPRA, by affirming or acknowledging such ownership
Suarez and Bennagen: through its various provisions, merely abides by the
constitutional mandate and does not suffer any vice of
MR. SUAREZ. When we speak of customary laws governing unconstitutionality.
property rights or relations in determining the ownership and
extent of the ancestral domain, are we thinking in terms of the Petitioners interpret the phrase "subject to the provisions of this
tribal ownership or community ownership or of private Constitution and national development policies and programs" in
ownership within the ancestral lands or ancestral domain? Section 5, Article XII of the Constitution to mean "as subject to the
provision of Section 2, Article XII of the Constitution," which vests
MR. BENNAGEN. The concept of customary laws is that it is in the State ownership of all lands of the public domain, mineral
considered as ownership by private individuals, clans and lands and other natural resources. Following this interpretation,
even communities. petitioners maintain that ancestral lands and ancestral domains
are the property of the State.
MR. SUAREZ. So, there will be two aspects to this situation. This
means that the State will set aside the ancestral domain and there This proposition is untenable. Indeed, Section 2, Article XII
is a separate law for that. Within the ancestral domain it could reiterates the declarations made in the 1935 and 1973
accept more specific ownership in terms of individuals within the Constitutions on the state policy of conservation and
ancestral lands. nationalization of lands of the public domain and natural
resources, and is of paramount importance to our national
economy and patrimony. A close perusal of the records of the
1986 Constitutional Commission reveals that the framers of the MR. BENNAGEN. Definitely. 110
Constitution inserted the phrase "subject to the provisions of this
Constitution" mainly to prevent the impairment of Torrens titles Thus, the phrase "subject to the provisions of this Constitution"
and other prior rights in the determination of what constitutes was intended by the framers of the Constitution as a reiteration of
ancestral lands and ancestral domains, to wit: the constitutional guarantee that no person shall be deprived of
property without due process of law.
MR. NATIVIDAD. Just one question. I want to clear this section
protecting ancestral lands. How does this affect the Torrens title There is another reason why Section 5 of Article XII mandating the
and other prior rights? protection of rights of the indigenous peoples to their ancestral
lands cannot be construed as subject to Section 2 of the same
MR. BENNAGEN. I think that was also discussed in the committee Article ascribing ownership of all public lands to the State. The
hearings and we did say that in cases where due process is clearly Constitution must be construed as a whole. It is a rule that when
established in terms of prior rights, these two have to be construction is proper, the whole Constitution is examined in
respected. order to determine the meaning of any provision. That
construction should be used which would give effect to the entire
MR. NATIVIDAD. The other point is: How vast is this ancestral instrument.111
land? Is it true that parts of Baguio City are considered as ancestral
lands? Thus, the provisions of the Constitution on State ownership of
public lands, mineral lands and other natural resources should be
MR. BENNAGEN. They could be regarded as such. If the read together with the other provisions thereof which firmly
Commissioner still recalls, in one of the publications that I recognize the rights of the indigenous peoples. These, as set forth
provided the Commissioners, the parts could be considered as hereinbefore,112 include: Section 22, Article II, providing that the
ancestral domain in relation to the whole population of Cordillera State recognizes and promotes the rights of indigenous peoples
but not in relation to certain individuals or certain groups. within the framework of national unity and development; Section
5, Article XII, calling for the protection of the rights of indigenous
MR. NATIVIDAD. The Commissioner means that the whole Baguio cultural communities to their ancestral lands to ensure their
City is considered as ancestral land? economic, social, and cultural well-being, and for the applicability
of customary laws governing property rights and relations in
MR. BENNAGEN. Yes, in the sense that it belongs to Cordillera or determining the ownership and extent of ancestral
in the same manner that Filipinos can speak of the Philippine domains; Section 1, Article XIII, directing the removal or
archipelago as ancestral land, but not in terms of the right of a reduction of social, economic, political and cultural inequities and
particular person or particular group to exploit, utilize, or sell it. inequalities by equitably diffusing wealth and political power for
the common good; Section 6, Article XIII, directing the
MR. NATIVIDAD. But is clear that the prior rights will be application of the principles of agrarian reform or stewardship in
respected. the disposition and utilization of other natural resources, subject
to prior rights, homestead rights of small settlers, and the rights
of indigenous communities to their ancestral lands; Section 17, ancestral lands or is it national development policies and
Article XIV, decreeing that the State shall recognize, respect, and programs.
protect the rights of indigenous cultural communities to preserve
and develop their cultures, traditions, and institutions; MR. DAVIDE. It is not really a question of which is primary or
and Section 12, Article XVI, authorizing the Congress to create a which is more paramount. The concept introduced here is
consultative body to advise the President on policies affecting really the balancing of interests. That is what we seek to attain.
indigenous cultural communities. We have to balance the interests taking into account the specific
needs and the specific interests also of these cultural communities
Again, as articulated in the Constitution, the first goal of the in like manner that we did so in the autonomous
national economy is the more equitable distribution of regions.115 (Emphasis supplied.)
opportunities, income, and wealth.113 Equity is given
prominence as the first objective of national economic B. The provisions of R.A. 8371 do not infringe upon the State’s
development.114 The framers of the Constitution did not, by the ownership over the natural resources within the ancestral domains.
phrase "subject to the provisions of this Constitution and national
development policies and programs," intend to establish a Petitioners posit that IPRA deprives the State of its ownership
hierarchy of constitutional norms. As explained by then over mineral lands of the public domain and other natural
Commissioner (now Chief Justice) Hilario G. Davide, Jr., it was not resources,116 as well as the State’s full control and supervision
their objective to make certain interests primary or paramount, or over the exploration, development and utilization of natural
to create absolute limitations or outright prohibitions; rather, the resources.117 Specifically, petitioners and the Solicitor General
idea is towards the balancing of interests: assail Sections 3 (a),118 5,119and 7120 of IPRA as violative of Section
2, Article XII of the Constitution which states, in part, that "[a]ll
BISHOP BACANI. In Commissioner Davide’s formulation of the lands of the public domain, waters, minerals, coal, petroleum, and
first sentence, he says: "The State, SUBJECT TO THE provisions of other mineral oils, all forces of potential energy, fisheries, forests
this Constitution AND NATIONAL DEVELOPMENT POLICIES AND or timber, wildlife, flora and fauna, and other natural resources
PROGRAMS shall guarantee the rights of cultural or tribal are owned by the State."121 They would have the Court declare as
communities to their ancestral lands to insure their economic, unconstitutional Section 3(a) of IPRA because the inclusion of
social and cultural well-being." There are at least two concepts natural resources in the definition of ancestral domains
here which receive different weights very often. They are the purportedly results in the abdication of State ownership over
concepts of national development policies and programs, and the these resources.
rights of cultural or tribal communities to their ancestral lands, et
cetera. I would like to ask: When the Commissioner proposed this I am not convinced.
amendment, which was the controlling concept? I ask this because
sometimes the rights of cultural minorities are precisely Section 3(a) merely defines the coverage of ancestral domains,
transgressed in the interest of national development policies and and describes the extent, limit and composition of ancestral
programs. Hence, I would like to know which is the controlling domains by setting forth the standards and guidelines in
concept here. Is it the rights of indigenous peoples to their
determining whether a particular area is to be considered as part the whole indigenous community and not merely the individual
of and within the ancestral domains. In other words, Section 3(a) member.125
serves only as a yardstick which points out what properties are
within the ancestral domains. It does not confer or recognize any That IPRA is not intended to bestow ownership over natural
right of ownership over the natural resources to the indigenous resources to the indigenous peoples is also clear from the
peoples. Its purpose is definitional and not declarative of a right deliberations of the bicameral conference committee on Section 7
or title. which recites the rights of indigenous peoples over their ancestral
domains, to wit:
The specification of what areas belong to the ancestral domains is,
to our mind, important to ensure that no unnecessary CHAIRMAN FLAVIER. Accepted. Section 8126 rights to ancestral
encroachment on private properties outside the ancestral domain, this is where we transferred the other provision but here
domains will result during the delineation process. The mere fact itself -
that Section 3(a) defines ancestral domains to include the natural
resources found therein does not ipso facto convert the character HON. DOMINGUEZ. Mr. Chairman, if I maybe allowed to make a
of such natural resources as private property of the indigenous very short Statement. Earlier, Mr. Chairman, we have decided to
peoples. Similarly, Section 5 in relation to Section 3(a) cannot be remove the provisions on natural resources because we all
construed as a source of ownership rights of indigenous people agree that that belongs to the State. Now, the plight or the rights
over the natural resources simply because it recognizes ancestral of those indigenous communities living in forest and areas where
domains as their "private but community property." it could be exploited by mining, by dams, so can we not also
provide a provision to give little protection or either rights for
The phrase "private but community property" is merely them to be consulted before any mining areas should be done in
descriptive of the indigenous peoples’ concept of ownership as their areas, any logging done in their areas or any dam
distinguished from that provided in the Civil Code. In Civil Law, construction because this has been disturbing our people
"ownership" is the "independent and general power of a person especially in the Cordilleras. So, if there could be, if our lawyers or
over a thing for purposes recognized by law and within the limits the secretariat could just propose a provision for incorporation
established thereby."122 The civil law concept of ownership has here so that maybe the right to consultation and the right to be
the following attributes: jus utendi or the right to receive from the compensated when there are damages within their ancestral
thing that which it produces, jus abutendi or the right to consume lands.
the thing by its use, jus disponendi or the power to alienate,
encumber, transform and even destroy that which is owned CHAIRMAN FLAVIER. Yes, very well taken but to the best of my
and jus vidicandi or the right to exclude other persons from the recollection both are already considered in subsequent sections
possession the thing owned.123 In contrast, the indigenous which we are now looking for.
peoples’ concept of ownership emphasizes the importance of
communal or group ownership. By virtue of the communal HON. DOMINGUEZ. Thank you.
character of ownership, the property held in common "cannot be
sold, disposed or destroyed"124 because it was meant to benefit
CHAIRMAN FLAVIER. First of all there is a line that gives priority NCIP and Flavier, et al. invoke the case of Reavies v. Fianza129 in
use for the indigenous people where they are. Number two, in support of their thesis that native title to natural resources has
terms of the mines there is a need for prior consultation of source been upheld in this jurisdiction.130 They insist that "it is possible
which is here already. So, anyway it is on the record that you want for rights over natural resources to vest on a private (as opposed
to make sure that the secretariat takes note of those two issues to a public) holder if these were held prior to the 1935
and my assurance is that it is already there and I will make sure Constitution."131 However, a judicious examination
that they cross check. of Reavies reveals that, contrary to the position of NCIP and
Flavier, et al., the Court did not recognize native title to natural
HON. ADAMAT. I second that, Mr. Chairman. resources. Rather, it merely upheld the right of the indigenous
peoples to claim ownership of minerals under the Philippine
CHAIRMAN FLAVIER. Okay, thank you. So we now move to Section Bill of 1902.
8, there is a Senate version you do not have and if you agree we
will adopt that.127 (Emphasis supplied.) While as previously discussed, native title to land or private
ownership by Filipinos of land by virtue of time immemorial
Further, Section 7 makes no mention of any right of ownership of possession in the concept of an owner was acknowledged and
the indigenous peoples over the natural resources. In fact, Section recognized as far back during the Spanish colonization of the
7(a) merely recognizes the "right to claim ownership over lands, Philippines, there was no similar favorable treatment as regards
bodies of water traditionally and actually occupied by indigenous natural resources. The unique value of natural resources has been
peoples, sacred places, traditional hunting and fishing grounds, acknowledged by the State and is the underlying reason for its
and all improvements made by them at any time within the consistent assertion of ownership and control over said natural
domains." Neither does Section 7(b), which enumerates certain resources from the Spanish regime up to the present.132 Natural
rights of the indigenous peoples over the natural resources found resources, especially minerals, were considered by Spain as an
within their ancestral domains, contain any recognition of abundant source of revenue to finance its battles in wars against
ownership vis-a-vis the natural resources. other nations. Hence, Spain, by asserting its ownership over
minerals wherever these may be found, whether in public or
What is evident is that the IPRA protects the indigenous peoples’ private lands, recognized the separability of title over lands and
rights and welfare in relation to the natural resources found that over minerals which may be found therein. 133
within their ancestral domains,128 including the preservation of
the ecological balance therein and the need to ensure that the On the other hand, the United States viewed natural resources as
indigenous peoples will not be unduly displaced when State- a source of wealth for its nationals. As the owner of natural
approved activities involving the natural resources located resources over the Philippines after the latter’s cession from
therein are undertaken. Spain, the United States saw it fit to allow both Filipino and
American citizens to explore and exploit minerals in public lands,
Finally, the concept of native title to natural resources, unlike and to grant patents to private mineral lands. A person who
native title to land, has not been recognized in the Philippines. 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 Undoubtedly, certain areas that are claimed as ancestral domains
property.134Although the United States made a distinction may still be under the administration of other agencies of the
between minerals found in public lands and those found in private Government, such as the Department of Agrarian Reform, with
lands, title in these minerals was in all cases sourced from the respect to agricultural lands, and the Department of Environment
State. The framers of the 1935 Constitution found it necessary to and Natural Resources with respect to timber, forest and mineral
maintain the State’s ownership over natural resources to insure lands. Upon the certification of these areas as ancestral domain
their conservation for future generations of Filipinos, to prevent following the procedure outlined in Sections 51 to 53 of the IPRA,
foreign control of the country through economic domination; and jurisdiction of the government agency or agencies concerned
to avoid situations whereby the Philippines would become a over lands forming part thereof ceases. Nevertheless, the
source of international conflicts, thereby posing danger to its jurisdiction of government agencies over the natural
internal security and independence.135 resources within the ancestral domains does not terminate by
such certification because said agencies are mandated under
The declaration of State ownership and control over minerals and existing laws to administer the natural resources for the State,
other natural resources in the 1935 Constitution was reiterated in which is the owner thereof. To construe Section 52[i] as divesting
both the 1973136 and 1987 Constitutions.137 the State, through the government agencies concerned, of
jurisdiction over the natural resources within the ancestral
Having ruled that the natural resources which may be found domains would be inconsistent with the established doctrine that
within the ancestral domains belong to the State, the Court deems all natural resources are owned by the State.
it necessary to clarify that the jurisdiction of the NCIP with respect
to ancestral domains under Section 52 [i] of IPRA extends only to C. The provisions of IPRA pertaining to the utilization of natural
the lands and not to the natural resources therein. resources are not unconstitutional.

Section 52[i] provides: The IPRA provides that indigenous peoples shall have the right to
manage and conserve the natural resources found on the
Turnover of Areas Within Ancestral Domains Managed by Other ancestral domains, to benefit from and share in the profits from
Government Agencies. - The Chairperson of the NCIP shall certify the allocation and utilization of these resources, and to negotiate
that the area covered is an ancestral domain. The secretaries of the terms and conditions for the exploration of such natural
the Department of Agrarian Reform, Department of Environment resources.138 The statute also grants them priority rights in the
and Natural Resources, Department of Interior and Local harvesting, extraction, development or exploitation of any natural
Government, and Department of Justice, the Commissioner of the resources within the ancestral domains.139 Before the NCIP can
National Development Corporation, and any other government issue a certification for the renewal, or grant of any concession,
agency claiming jurisdiction over the area shall be notified license or lease, or for the perfection of any production-sharing
thereof. Such notification shall terminate any legal basis for the agreement the prior informed written consent of the indigenous
jurisdiction previously claimed. peoples concerned must be obtained.140 In return, the indigenous
peoples are given the responsibility to maintain, develop, protect
and conserve the ancestral domains or portions thereof which are
found to be necessary for critical watersheds, mangroves, wildlife allow small-scale utilization of natural resources by its
sanctuaries, wilderness, protected areas, forest cover, or citizens.146 Further, Section 6, Article XIII, directs the State, in the
reforestation.141 disposition and utilization of natural resources, to apply the
principles of agrarian reform or stewardship.147 Similarly, Section
The Solicitor General argues that these provisions deny the State 7, Article XIII mandates the State to protect the rights of
an active and dominant role in the utilization of our country’s subsistence fishermen to the preferential use of marine and
natural resources. Petitioners, on the other hand, allege that fishing resources.148 Clearly, Section 2, Article XII, when
under the Constitution the exploration, development and interpreted in view of the pro-Filipino, pro-poor philosophy of our
utilization of natural resources may only be undertaken by the fundamental law, and in harmony with the other provisions of the
State, either directly or indirectly through co-production, joint Constitution rather as a sequestered pronouncement,149 cannot
venture, or production-sharing agreements.142 To petitioners, no be construed as a prohibition against any and all forms of
other method is allowed by the Constitution. They likewise submit utilization of natural resources without the State’s direct
that by vesting ownership of ancestral lands and ancestral participation.
domains in the indigenous peoples, IPRA necessarily gives them
control over the use and enjoyment of such natural resources, to Through the imposition of certain requirements and conditions
the prejudice of the State.143 for the exploration, development and utilization of the natural
resources under existing laws,150 the State retains full control over
Section 2, Article XII of the Constitution provides in paragraph 1 such activities, whether done on small-scale basis151 or otherwise.
thereof that the exploration, development and utilization of
natural resources must be under the full control and supervision The rights given to the indigenous peoples regarding the
of the State, which may directly undertake such activities or enter exploitation of natural resources under Sections 7(b) and 57 of
into co-production, joint venture, or production-sharing IPRA amplify what has been granted to them under existing laws,
agreements. This provision, however, should not be read in such as the Small-Scale Mining Act of 1991 (R.A. 7076) and the
isolation to avoid a mistaken interpretation that any and all forms Philippine Mining Act of 1995 (R.A. 7942). R.A. 7076 expressly
of utilization of natural resources other than the foregoing are provides that should an ancestral land be declared as a people’s
prohibited. The Constitution must be regarded as consistent with small-scale mining area, the members of the indigenous peoples
itself throughout.144 No constitutional provision is to be separated living within said area shall be given priority in the awarding of
from all the others, or to be considered alone, all provisions small-scale mining contracts.152 R.A. 7942 declares that no
bearing upon a particular subject are to be brought into view and ancestral land shall be opened for mining operations without
to be so interpreted as to effectuate the great purposes of the the prior consent of the indigenous cultural community
fundamental law.145 concerned153 and in the event that the members of such
indigenous cultural community give their consent to mining
In addition to the means of exploration, development and operations within their ancestral land, royalties shall be paid to
utilization of the country’s natural resources stated in paragraph them by the parties to the mining to the contract.154
1, Section 2 of Article XII, the Constitution itself states in the third
paragraph of the same section that Congress may, by law,
In any case, a careful reading of Section 7(b) would reveal that the There is nothing in the assailed law which implies an automatic or
rights given to the indigenous peoples are duly circumscribed. mechanical character in the grant of concessions. Nor does the law
These rights are limited only to the following: "to manage and negate the exercise of sound discretion by government entities.
conserve natural resources within territories and uphold it for Several factors still have to be considered. For example, the extent
future generations; to benefit and share the profits from and nature of utilization and the consequent impact on the
allocation and utilization of the natural resources found environment and on the indigenous peoples’ way of life are
therein; to negotiate the terms and conditions for the important considerations. Moreover, the indigenous peoples must
exploration of natural resources in the areas for the purpose of show that they live in the area and that they are in the best
ensuring ecological, environmental protection and the position to undertake the required utilization.
conservation measures, pursuant to national and customary
laws; to an informed and intelligent participation in the It must be emphasized that the grant of said priority rights to
formulation and implementation of any project, government or indigenous peoples is not a blanket authority to disregard
private, that will affect or impact upon the ancestral domains pertinent laws and regulations. The utilization of said natural
and to receive just and fair compensation for any damages resources is always subject to compliance by the indigenous
which they may sustain as a result of the project, and the right to peoples with existing laws, such as R.A. 7076 and R.A. 7942 since
effective measures by the government to prevent any it is not they but the State, which owns these resources.
interference with, alienation and encroachment of these rights."
It also bears stressing that the grant of priority rights does not
It must be noted that the right to negotiate terms and conditions preclude the State from undertaking activities, or entering into co-
granted under Section 7(b) pertains only to the exploration of production, joint venture or production-sharing agreements with
natural resources. The term "exploration" refers only to the private entities, to utilize the natural resources which may be
search or prospecting of mineral resources, or any other means located within the ancestral domains. There is no intention, as
for the purpose of determining the existence and the feasibility of between the State and the indigenous peoples, to create a
mining them for profit.155 The exploration, which is merely a hierarchy of values; rather, the object is to balance the interests of
preliminary activity, cannot be equated with the entire process of the State for national development and those of the indigenous
"exploration, development and utilization" of natural resources peoples.
which under the Constitution belong to the State.
Neither does the grant of priority rights to the indigenous peoples
Section 57, on the other hand, grants the indigenous peoples exclude non-indigenous peoples from undertaking the same
"priority rights" in the utilization of natural resources and not activities within the ancestral domains upon authority granted by
absolute ownership thereof. Priority rights does not mean the proper governmental agency. To do so would unduly limit the
exclusive rights. What is granted is merely the right of preference ownership rights of the State over the natural resources.
or first consideration in the award of privileges provided by
existing laws and regulations, with due regard to the needs and To be sure, the act of the State of giving preferential right to a
welfare of indigenous peoples living in the area. particular sector in the utilization of natural resources is nothing
new. As previously mentioned, Section 7, Article XIII of the System,159 the Local Government Code160 and the Philippine
Constitution mandates the protection by the State of "the rights of Mining Act of 1995161already require increased consultation and
subsistence fishermen, especially of local communities, to the participation of stakeholders, such as indigenous peoples, in the
preferential use of communal marine and fishing resources, both planning of activities with significant environment impact.
inland and offshore."
The requirement in Section 59 that prior written informed
Section 57 further recognizes the possibility that the exploration consent of the indigenous peoples must be procured before the
and exploitation of natural resources within the ancestral NCIP can issue a certification for the "issuance, renewal, or grant
domains may disrupt the natural environment as well as the of any concession, license or lease, or to the perfection of any
traditional activities of the indigenous peoples therein. Hence, the production-sharing agreement," must be interpreted, not as a
need for the prior informed consent of the indigenous peoples grant of the power to control the exploration, development and
before any search for or utilization of the natural resources within utilization of natural resources, but merely the imposition of an
their ancestral domains is undertaken. additional requirement for such concession or agreement. The
clear intent of the law is to protect the rights and interests of the
In a situation where the State intends to directly or indirectly indigenous peoples which may be adversely affected by the
undertake such activities, IPRA requires that the prior informed operation of such entities or licensees.
consent of the indigenous peoples be obtained. The State must, as
a matter of policy and law, consult the indigenous peoples in Corollary Issues
accordance with the intent of the framers of the Constitution that
national development policies and programs should involve a A. IPRA does not violate the Due Process clause.
systematic consultation to balance local needs as well as national
plans. As may be gathered from the discussion of the framers of The first corollary issue raised by petitioners is whether IPRA
the Constitution on this point, the national plan presumably takes violates Section 1, Article III of the Constitution, which provides
into account the requirements of the region after thorough that "no person shall be deprived of life, liberty, or property
consultation.156 To this end, IPRA grants to the indigenous peoples without due process of law, nor shall any person be deprived the
the right to an informed and intelligent participation in the equal protection of the laws."
formulation and implementation of any project, government or
private, and the right not to be removed therefrom without their Petitioners maintain that the broad definition of ancestral lands
free and prior informed consent.157 As to non-members, the prior and ancestral domains under Section 3(a) and 3(b) of IPRA
informed consent takes the form of a formal and written includes private lands. They argue that the inclusion of private
agreement between the indigenous peoples and non-members lands in the ancestral lands and ancestral domains violates the
under the proviso in Section 57 in case the State enters into a co- due process clause.162 Petitioners’ contention is erroneous.
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
Sections 3(a) and 3(b) expressly provide that the definition of Director of Lands shall appear to represent the interest of the
ancestral lands and ancestral domains are "subject to Section 56," Republic of the Philippines.164 With regard to ancestral domains,
which reads: the following procedure is mandatory: first, petition by an
indigenous cultural community, or motu proprio by the
Sec. 56. Existing Property Rights Regimes. – Property rights within NCIP; second, investigation and census by the Ancestral domains
the ancestral domains already existing and/or vested upon Office ("ADO") of the NCIP; third, preliminary report by the
effectivity of this Act, shall be recognized and protected. ADO; fourth, posting and publication; and lastly, evaluation by the
NCIP upon submission of the final report of the ADO.165 With
Petitioners, however, contend that Section 56 aims to protect only regard to ancestral lands, unless such lands are within an
the vested rights of indigenous peoples, but not those who are not ancestral domain, the statute imposes the following procedural
members of such communities. Following their interpretation, requirements: first, application; second, posting and
IPRA, under Section 56, recognizes the rights of indigenous publication; third, investigation and inspection by the
peoples to their ancestral lands and ancestral domains, subject to ADO; fourth, delineation; lastly, evaluation by the NCIP upon
the vested rights of the same communities to such ancestral submission of a report by the ADO.166 Hence, we cannot sustain
lands and ancestral domains. Such interpretation is obviously the arguments of the petitioners that the law affords no protection
incorrect. to those who are not indigenous peoples.

The "property rights" referred to in Section 56 belong to those Neither do the questioned sections of IPRA on the composition
acquired by individuals, whether indigenous or non-indigenous and powers and jurisdiction of the NCIP167 and the application of
peoples. Said provision makes no distinction as to the ethnic customary law,168 violate the due process clause of the
origins of the ownership of these "property rights." The IPRA thus Constitution.
recognizes and respects "vested rights" regardless of whether
they pertain to indigenous or non-indigenous peoples. Where the Petitioners point out that IPRA provides that the NCIP shall be
law does not distinguish, the courts should not composed exclusively of members of indigenous peoples,169 and
distinguish.163What IPRA only requires is that these "property that the NCIP shall have jurisdiction over all claims and disputes
rights" already exist and/or vested upon its effectivity. involving indigenous peoples,170 including even disputes between
a member of such communities and one who is not a member, as
Further, by the enactment of IPRA, Congress did not purport to well as over disputes in the delineation of ancestral
annul any and all Torrens titles within areas claimed as ancestral domains.171 Petitioners clarify that they do not claim that the
lands or ancestral domains. The statute imposes strict procedural members of the NCIP are incapable of being fair and impartial
requirements for the proper delineation of ancestral lands and judges. They merely contend that the NCIP will not appear to be
ancestral domains as safeguards against the fraudulent impartial, because a party who is not a member of an indigenous
deprivation of any landowner of his land, whether or not he is cultural community "who must defend his case against [one who
member of an indigenous cultural community. In all proceedings is] before judges who are all members of [indigenous peoples]
for delineation of ancestral lands and ancestral domains, the cannot but harbor a suspicion that they do not have the cold
neutrality of an impartial judge."172
In addition, petitioners claim that IPRA prescribes that customary these present a workable solution acceptable to the parties, who
laws shall be applied first in disputes involving property, are members of the same indigenous group. This interpretation is
succession and land,173 and that such laws shall likewise be used supported by Section 1, Rule IX of the Implementing Rules which
in disputes involving indigenous peoples.174 They assert that states:
"[w]hen the dispute involves a member of an [indigenous cultural
community and another who is not], a resolution of such a dispute RULE IX. JURISDICTION AND PROCEDURES FOR ENFORCEMENT
based on customary laws. . . would clearly be a denial of due OF RIGHTS
process. . . [because those who are not indigenous peoples] do not
know what these customary laws are."175 Section 1. Primacy of Customary Law. All conflicts related to
ancestral domains and lands, involving ICCs/IPs, such as but not
Petitioners’ concerns are unfounded. The fact that the NCIP is limited to conflicting claims and boundary disputes, shall be
composed of members of the indigenous peoples does not mean resolved by the concerned parties through the application of
that it (the NCIP) is incapable, or will appear to be so incapable, of customary laws in the area where the disputed ancestral domain
delivering justice to the non-indigenous peoples. A person’s or land is located.
possession of the trait of impartiality desirable of a judge has
nothing to do with his or her ethnic roots. In this wise, the All conflicts related to the ancestral domains or lands where
indigenous peoples are as capable of rendering justice as the non- one of the parties is a non-ICC/IP or where the dispute could
indigenous peoples for, certainly, the latter have no monopoly of not be resolved through customary law shall be heard and
the concept of justice. adjudicated in accordance with the Rules on Pleadings,
Practice and Procedures Before the NCIP to be adopted
In any case, there are sufficient checks in the law against any hereafter. (Emphasis supplied.)
abuse by the NCIP of its quasi-judicial powers. Section 67 states
that the decision of the NCIP shall be appealable to the Court of The application of customary law is limited to disputes
Appeals by petition for review. The regular remedies under our concerning property rights or relations in determining the
rules of procedure are likewise available to any party aggrieved ownership and extent of the ancestral domains,177 where all
by the decision of the NCIP. the parties involved are members of indigenous
peoples,178 specifically, of the same indigenous group. It therefore
Anent the use of customary laws in determining the ownership follows that when one of the parties to a dispute is a non-member
and extent of ancestral domains, suffice it to say that such is of an indigenous group, or when the indigenous peoples involved
allowed under paragraph 2, Section 5 of Article XII of the belong to different groups, the application of customary law is not
Constitution. Said provision states, "The Congress may provide for required.
the applicability of customary laws governing property rights and
relations in determining the ownership and extent of the ancestral Like any other law, the objective of IPRA in prescribing the
domains." Notably, the use of customary laws under IPRA is not primacy of customary law in disputes concerning ancestral lands
absolute, for the law speaks merely of primacy of use.176 The and domains where all parties involved are indigenous peoples is
IPRA prescribes the application of such customary laws where
justice. The utilization of customary laws is in line with the Part II: NCIP as an Independent Agency Under the Office of the
constitutional policy of recognizing the application thereof President
through legislation passed by Congress.
Section 1. The NCIP is the primary agency of government for the
Furthermore, the recognition and use of customary law is not a formulation and implementation of policies, plans and programs
novel idea in this jurisdiction. Under the Civil Code, use of to recognize, promote and protect the rights and well-being of
customary law is sanctioned, as long as it is proved as a fact indigenous peoples. It shall be an independent agency under the
according to the rules of evidence,179and it is not contrary to law, Office of the President. As such, the administrative relationship
public order or public policy.180 Moreover, the Local Government of the NCIP to the Office of the President is characterized as a
Code of 1991 calls for the recognition and application of lateral but autonomous relationship for purposes of policy and
customary laws to the resolution of issues involving members of program coordination. This relationship shall be carried out
indigenous peoples. This law admits the operation of customary through a system of periodic reporting. Matters of day-to-day
laws in the settling of disputes if such are ordinarily used in administration or all those pertaining to internal operations shall
barangays where majority of the inhabitants are members of be left to the discretion of the Chairperson of the Commission, as
indigenous peoples.181 the Chief Executive Officer.

B. Section 1, Part II, Rule VII of the Implementing Rules of IPRA does Petitioners asseverate that the aforecited rule infringes upon the
not infringe upon the President’s power of control over the power of control of the President over the NCIP by characterizing
Executive Department. the relationship of the NCIP to the Office of the President as
"lateral but autonomous...for purposes of policy and program
The second corollary issue is whether the Implementing Rules of coordination."
IPRA violate Section 17, Article VII of the Constitution, which
provides that: Although both Section 40 of the IPRA and Section 1, Part II, Rule
VII of the Implementing Rules characterize the NCIP as an
The President shall have control of all the executive departments, independent agency under the Office of the President, such
bureaus, and offices. He shall ensure that the laws be faithfully characterization does not remove said body from the President’s
executed. control and supervision.

The assailed provision of the Implementing Rules provides: The NCIP has been designated under IPRA as the primary
government agency responsible for the formulation and
Rule VII. The National Commission on Indigenous Peoples (NCIP) implementation of policies, plans and programs to promote and
protect the rights and well being of the indigenous peoples and
xxx the recognition of their ancestral domain as well as their rights
thereto.182 It has been granted administrative,183 quasi-
legislative184 and quasi-judicial powers185 to carry out its
mandate. The diverse nature of the NCIP’s functions renders it (1) The provisions of the IPRA (specifically Sections 3,
impossible to place said agency entirely under the control of only paragraphs (a) and (b), 5, 6, 7, and 8) affirming the
one branch of government and this, apparently, is the reason for ownership by the indigenous peoples of their ancestral
its characterization by Congress as an independent agency. An lands and domains by virtue of native title do not diminish
"independent agency" is defined as an administrative body the State’s ownership of lands of the public domain,
independent of the executive branch or one not subject to a because said ancestral lands and domains are considered
superior head of department, as distinguished from a as private land, and never to have been part of the public
"subordinate agency" or an administrative body whose action is domain, following the doctrine laid down in Cariño vs.
subject to administrative review or revision.186 Insular Government;195

That Congress did not intend to place the NCIP under the control (2) The constitutional provision vesting ownership over
of the President in all instances is evident in the IPRA itself, which minerals, mineral lands and other natural resources in the
provides that the decisions of the NCIP in the exercise of its quasi- State is not violated by Sections 3, 5, 7, 56, 57, 58 and 59
judicial functions shall be appealable to the Court of of the IPRA which grant certain rights to the indigenous
Appeals,187 like those of the National Labor Relations Commission peoples over the natural resources found within the
(NLRC) and the Securities and Exchange Commission (SEC). ancestral domains, e.g., to benefit from and share in the
Nevertheless, the NCIP, although independent to a certain degree, profits from the allocation and utilization of the same, as
was placed by Congress "under the office of the President" and, as well as priority rights in the harvesting, extraction,
such, is still subject to the President’s power of control and development or exploitation thereof. The State retains full
supervision granted under Section 17, Article VII of the control over the exploration, development and utilization
Constitution188 with respect to its performance of administrative of natural resources even with the grant of said rights to
functions, such as the following: (1) the NCIP must secure the the indigenous peoples, through the imposition of
President’s approval in obtaining loans to finance its requirements and conditions for the utilization of natural
projects;189 (2) it must obtain the President’s approval for any resources under existing laws, such as the Small-Scale
negotiation for funds and for the acceptance of gifts and/or Mining Act of 1991196and the Philippine Mining Act of
properties in whatever from and from whatever source;190 (3) the 1995.197 Moreover, the rights granted to indigenous
NCIP shall submit annual reports of its operations and peoples for the utilization of natural resources within
achievements to the President, and advise the latter on all matters their ancestral domains merely amplify what has been
relating to the indigenous peoples;191 and (4) it shall exercise such earlier granted to them under the aforesaid laws;
other powers as may be directed by the President.192 The
President is also given the power to appoint the Commissioners of (3) While the IPRA recognizes the rights of indigenous
the NCIP193 as well as to remove them from office for cause motu peoples with regard to their ancestral lands and domains,
proprio or upon the recommendation of any indigenous it also protects the vested rights of persons, whether
community.194 indigenous or non-indigenous peoples, who may have
acquired rights of ownership lands or rights to explore
To recapitulate:
and exploit natural resources within the ancestral lands
and domains;198

(4) The Due Process Clause of the Constitution is not


violated by the provisions (Sections 40, 51-54, 62, 63, 65
and 66) of the IPRA which, among others, establish the
composition of the NCIP, and prescribe the application of
customary law in certain disputes involving indigenous
peoples. The fact the NCIP is composed wholly of
indigenous peoples does not mean that it is incapable of
being impartial. Moreover, the use of customary laws is
sanctioned by paragraph 2, Section 5 of Article XII of the
Constitution; and

(5) The provision of the Implementing Rules


characterizing the NCIP as an independent agency under
the Office of the President does not infringe upon the
President’s power of control under Section 17, Article VII
of the Constitution, since said provision as well as Section
40 of the IPRA expressly places the NCIP under the Office BUREAUCRATIC CONSTRAINTS IN CLASSIFICATION OF LANDS
of the President, and therefore under the President’s
control and supervision with respect to its administrative #13
functions. However, insofar as the decisions of the NCIP in
the exercise of its quasi-judicial powers are concerned, the Republic of the Philippines
same are reviewable by the Court of Appeals, like those of SUPREME COURT
the NLRC and the SEC. Manila

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

G.R. No. 137887 February 28, 2000

REPUBLIC OF THE PHILIPPINES, petitioner, vs. DAMIAN


ERMITAO DE GUZMAN, DEOGRACIAS ERMITAO DE GUZMAN,
ZENAIDA ERMITAO DE GUZMAN, ALICIA ERMITAO DE
GUZMAN, SALVADOR ERMITAO DE GUZMAN, DOMINGA
ERMITAON, NATIVIDAD ENCARNACION, MELBA E. TORRES,
FLORA MANALO, SOCORRO DELA ROSA, JOSE ERMITAO, Plan Psu-67537-Amd-2 and containing an area of
ESMERANDO ERMITAO, TRICOM DEVELOPMENT 308,638 square meters, as supported by its
CORPORATION and FILOMENO ERMITAO, respondents. technical descriptions now forming parts of the
records of these cases, in addition to other proofs
DECISION adduced in the names of petitioners Damian
Ermitao De Guzman, Deogracias Ermitao De
YNARES_SANTIAGO, J.: Guzman, Zenaida Ermitao De Guzman, Alicia
Ermitao De Guzman and Salvador De Guzman, all
Before us is a Petition for Review on Certiorari of a decision of the married, of legal age and with residence and postal
Court of Appeals[1] affirming the judgment of the Regional Trial addresses at Magallanes Street, Carmona, Cavite,
Court of Tagaytay, Branch 18, in LRC Cases No. TG-362 and TG- subject to the claims of oppositors Dominga
396.[2] Ermitao, Natividad Encarnacion, Melba E. Torres,
Flora Manalo, Socorro de la Rosa, Jose Ermitao and
The facts are simple: Esmeranso Ermitao under an instrument entitled
'Waiver of Rights with Conformity" the terms and
Conflicting applications for confirmation of imperfect title were conditions of which are hereby ordered by this
filed by Norma Almanzor and private respondent Salvador De Court to be annotated at the back of the certificates
Guzman over parcels of land located in Silang, Cavite. After trial of title to be issued to the petitioners pursuant to
the judgment of this Court. brnado
on the merits, the lower court rendered judgment in favor of
private respondent De Guzman, to wit -
SO ORDERED."
"WHEREFORE, judgment is hereby rendered by
this Court as follows: nigel As earlier mentioned, on appeal to the Court of Appeals, said
judgment was affirmed and the petition for registration of private
respondents over the subject parcels of land was approved.
(1) In LRC Case No. TG-362, this Court hereby
denies the application for registration of the
parcels of land mentioned therein by applicant Hence, the instant Petition, anchored upon the following
Norma R. Almanzor for lack of factual and legal assignments of error
bases;
I
(2) In LRC Case No. 396, this Court hereby
approves the petition for registration and thus THE TRIAL COURT ERRED IN NOT FINDING THAT
places under the operation of Act 141, Act 946 THE DE GUZMANS HAVE NOT SUBMITTED PROOF
and/or P.D. 1529, otherwise known as the OF THEIR FEE SIMPLE TITLE OR POSSESSION IN
Property Registration Law, the land described in THE MANNER AND FOR THE LENGTH OF TIME
REQUIRED BY LAW TO JUSTIFY CONFIRMATION Ermitao's possession is 63 years or more than the
OF AN IMPERFECT TITLE. required 30 years period of possession. The land,
which is agricultural, has been converted to
II private property ."

THE TRIAL COURT ERRED IN NOT DECLARING We disagree.


THAT THE DE GUZMANS HAVE NOT
OVERTHROWN THE PRESUMPTION THAT THE The Court of Appeals' consideration of the period of possession
LANDS ARE PORTIONS OF THE PUBLIC DOMAIN prior to the time the subject land was released as agricultural is in
BELONGING TO THE REPUBLIC OF THE direct contravention of the pronouncement in Almeda vs. Court
PHILIPPINES. of Appeals, to wit -

We find merit in the instant Petition. "The Court of Appeals correctly ruled that the
private respondents had not qualified for a grant
It is not disputed that the subject parcels of land were released as under Section 48(b) of the Public Land Act
agricultural land only in 1965 while the petition for confirmation because their possession of the land while it
of imperfect title was filed by private respondents only in 1991. was still inalienable forest land, or before it
Thus the period of occupancy of the subject parcels of land from was declared alienable and disposable land of
1965 until the time the application was filed in 1991 was only the public domain on January 13, 1968, could
twenty six (26) years, four (4) years short of the required thirty not ripen into private ownership, and should
(30) year period possession requirement under Sec. 14, P.D. be excluded from the computation of the 30-
29 and R.A. No. 6940. year open and continuous possession in
concept of owner required under Section 48(b)
In finding that private respondents' possession of the subject of Com. Act 141. It accords with our ruling in
property complied with law, the Court of Appeals reasoned out Director of Lands vs. Court of Appeals, Ibarra
that Bishar, et al., 178 SCRA 708, that: marinella

"(W)hile it is true that the land became alienable 'Unless and until the land classified as forest is
and disposable only in December, 1965, however, released in an official proclamation to that effect
records indicate that as early as 1928, Pedro so that it may form part of the disposable lands of
Ermitao, appellees' predecessor-in-interest, was the public domain, the rules on confirmation of
already in possession of the property, cultivating imperfect title do not apply (Amunategui vs.
it and planting various crops thereon. It follows Director of Forestry, 126 SCRA 69; Director of
that appellees' possession as of the time of the Lands vs. Court of Appeals, 129 SCRA 689;
filing of the petition in 1991 when tacked to Pedro Director of Lands vs. Court of Appeals, 133 SCRA
701; Republic vs. Court of Appeals, 148 SCRA 480; land is released in an official proclamation to that effect so that it
Vallarta vs. Intermediate Appellate Court, 151 may form part of the disposable agricultural lands of the public
SCRA 679). domain.

'Thus possession of forest lands, however long, While we acknowledge the Court of Appeals' finding that private
cannot ripen into private ownership (Vamo vs. respondents and their predecessors-in-interest have been in
Government, 41 Phil. 161 [1920]; Adorable vs. possession of the subject land for sixty three (63) years at the time
Director of Forestry, 17 Phil. 410 [1960]). A parcel of the application of their petition, our hands are tied by the
of forest land is within the exclusive jurisdiction of applicable laws and jurisprudence in giving practical relief to
the Bureau of Forestry and beyond the power and them. The fact remains that from the time the subject land was
jurisdiction of the cadastral court to register under declared alienable until the time of their application, private
the Torrens System (Republic vs. Court of Appeals, respondents' occupation thereof was only twenty six (26) years.
89 SCRA 648; Republic vs. Vera, 120 SCRA 210 We cannot consider their thirty seven (37) years of possession
[1983]; Director of Lands vs. Court of Appeals, 129 prior to the release of the land as alienable because absent the fact
SCRA 689 [1984])." of declassification prior to the possession and cultivation in good
faith by petitioner, the property occupied by him remained
So, too, is the Court of Appeals' reliance on the case of Director of classified as forest or timberland, which he could not have acquired
Land Management vs. Court of Appeals misplaced. There, while by prescription. Further, jurisprudence is replete with cases which
the period of possession of the applicant's predecessor-in-interest reiterate that forest lands or forest reserves are not capable of
was tacked to his own possession to comply with the required private appropriation and possession thereof, however long,
thirty year period possession requirement, the land involved cannot convert them into private property. Possession of the land
therein was not forest land but alienable public land. On the other by private respondents, whether spanning decades or centuries,
hand, in the case before us, the property subject of private could never ripen into ownership. This Court is constrained to
respondents' application was only declared alienable in 1965. abide by the latin maxim "(d)ura lex, sed lex".
Prior to such date, the same was forest land incapable of private
appropriation. It was not registrable and possession thereof, no WHEREFORE, the instant Petition is GRANTED and the February
matter how lengthy, could not convert it into private property, 26, 1998 decision of the Court of Appeals in CA-G.R. CV No. 48785
(unless) and until such lands were reclassified and considered as well as that of the Regional Trial Court of Cavite, Branch 38, in
disposable and alienable. LRC Case No. TG-396 are both REVERSED. Judgment is rendered
dismissing LRC Case No. 396 for failure of the applicants therein
In summary, therefore, prior to its declaration as alienable land in to comply with the thirty year occupancy and possessory
1965, any occupation or possession thereon cannot be considered requirements of law for confirmation of imperfect title. No
in the counting of the thirty year possession requirement. This is pronouncement as to costs.
in accord with the ruling in Almeda vs. Court of Appeals,
(supra), and because the rules on the confirmation of imperfect SO ORDERED.
titles do not apply unless and until the land classified as forest
promulgated on April 29, 2009, whereby we upheld the ruling of
the Court of Appeals (CA) denying the application of the
petitioners for the registration of a parcel of land situated in
Barangay Tibig, Silang, Cavite on the ground that they had not
established by sufficient evidence their right to the registration in
accordance with either Section 14(1) or Section 14(2) of
Presidential Decree No. 1529 (Property Registration Decree).

Antecedents

The property subject of the application for registration is a parcel


of land situated in Barangay Tibig, Silang Cavite, more particularly
identified as Lot 9864-A, Cad-452-D, with an area of 71,324-
square meters. On February 20, 1998, applicant Mario Malabanan,
who had purchased the property from Eduardo Velazco, filed an
#14
application for land registration covering the property in the
Regional Trial Court (RTC) in Tagaytay City, Cavite, claiming that
Republic of the Philippines
the property formed part of the alienable and disposable land of
SUPREME COURT
the public domain, and that he and his predecessors-in-interest
Manila
had been in open, continuous, uninterrupted, public and adverse
possession and occupation of the land for more than 30 years,
EN BANC thereby entitling him to the judicial confirmation of his title.1
G.R. No. 179987 September 3, 2013 To prove that the property was an alienable and disposable land
of the public domain, Malabanan presented during trial a
HEIRS OF MARIO MALABANAN, (Represented by Sally A. certification dated June 11, 2001 issued by the Community
Malabanan), Petitioners, Environment and Natural Resources Office (CENRO) of the
vs. Department of Environment and Natural Resources (DENR),
REPUBLIC OF THE PHILIPPINES, Respondent. which reads:

RESOLUTION This is to certify that the parcel of land designated as Lot No. 9864
Cad 452-D, Silang Cadastre as surveyed for Mr. Virgilio Velasco
BERSAMIN, J.: located at Barangay Tibig, Silang, Cavite containing an area of
249,734 sq. meters as shown and described on the Plan Ap-04-
For our consideration and resolution are the motions for 00952 is verified to be within the Alienable or Disposable land per
reconsideration of the parties who both assail the decision
Land Classification Map No. 3013 established under Project No. Property Registration Decree, any period of possession prior to
20-A and approved as such under FAO 4-1656 on March 15, the classification of the land as alienable and disposable was
1982.2 inconsequential and should be excluded from the computation of
the period of possession. Noting that the CENRO-DENR
After trial, on December 3, 2002, the RTC rendered judgment certification stated that the property had been declared alienable
granting Malabanan’s application for land registration, disposing and disposable only on March 15, 1982, Velazco’s possession
thusly: prior to March 15, 1982 could not be tacked for purposes of
computing Malabanan’s period of possession.
WHEREFORE, this Court hereby approves this application for
registration and thus places under the operation of Act 141, Act Due to Malabanan’s intervening demise during the appeal in the
496 and/or P.D. 1529, otherwise known as Property Registration CA, his heirs elevated the CA’s decision of February 23, 2007 to
Law, the lands described in Plan Csd-04-0173123-D, Lot 9864-A this Court through a petition for review on certiorari.
and containing an area of Seventy One Thousand Three Hundred
Twenty Four (71,324) Square Meters, as supported by its The petitioners assert that the ruling in Republic v. Court of
technical description now forming part of the record of this case, Appeals and Corazon Naguit5 (Naguit) remains the controlling
in addition to other proofs adduced in the name of MARIO doctrine especially if the property involved is agricultural land. In
MALABANAN, who is of legal age, Filipino, widower, and with this regard, Naguit ruled that any possession of agricultural land
residence at Munting Ilog, Silang, Cavite. prior to its declaration as alienable and disposable could be
counted in the reckoning of the period of possession to perfect
Once this Decision becomes final and executory, the title under the Public Land Act (Commonwealth Act No. 141) and
corresponding decree of registration shall forthwith issue. the Property Registration Decree. They point out that the ruling in
Herbieto, to the effect that the declaration of the land subject of
SO ORDERED.3 the application for registration as alienable and disposable should
also date back to June 12, 1945 or earlier, was a mere obiter
The Office of the Solicitor General (OSG) appealed the judgment to dictum considering that the land registration proceedings therein
the CA, arguing that Malabanan had failed to prove that the were in fact found and declared void ab initio for lack of
property belonged to the alienable and disposable land of the publication of the notice of initial hearing.
public domain, and that the RTC erred in finding that he had been
in possession of the property in the manner and for the length of The petitioners also rely on the ruling in Republic v. T.A.N.
time required by law for confirmation of imperfect title. Properties, Inc.6 to support their argument that the property had
been ipso jure converted into private property by reason of the
On February 23, 2007, the CA promulgated its decision reversing open, continuous, exclusive and notorious possession by their
the RTC and dismissing the application for registration of predecessors-in-interest of an alienable land of the public domain
Malabanan. Citing the ruling in Republic v. Herbieto for more than 30 years. According to them, what was essential
(Herbieto),4 the CA declared that under Section 14(1) of the was that the property had been "converted" into private property
through prescription at the time of the application without regard
to whether the property sought to be registered was previously Chiefly citing the dissents, the Republic contends that the decision
classified as agricultural land of the public domain. has enlarged, by implication, the interpretation of Section 14(1) of
the Property Registration Decree through judicial legislation. It
As earlier stated, we denied the petition for review on certiorari reiterates its view that an applicant is entitled to registration only
because Malabanan failed to establish by sufficient evidence when the land subject of the application had been declared
possession and occupation of the property on his part and on the alienable and disposable since June 12, 1945 or earlier.
part of his predecessors-in interest since June 12, 1945, or earlier.
Ruling
Petitioners’ Motion for Reconsideration
We deny the motions for reconsideration.
In their motion for reconsideration, the petitioners submit that
the mere classification of the land as alienable or disposable In reviewing the assailed decision, we consider to be imperative
should be deemed sufficient to convert it into patrimonial to discuss the different classifications of land in relation to the
property of the State. Relying on the rulings in Spouses De existing applicable land registration laws of the Philippines.
Ocampo v. Arlos,7 Menguito v. Republic8 and Republic v. T.A.N.
Properties, Inc.,9 they argue that the reclassification of the land as Classifications of land according to ownership
alienable or disposable opened it to acquisitive prescription
under the Civil Code; that Malabanan had purchased the property Land, which is an immovable property,10 may be classified as
from Eduardo Velazco believing in good faith that Velazco and his either of public dominion or of private ownership.11Land is
predecessors-in-interest had been the real owners of the land considered of public dominion if it either: (a) is intended for
with the right to validly transmit title and ownership thereof; that public use; or (b) belongs to the State, without being for public
consequently, the ten-year period prescribed by Article 1134 of use, and is intended for some public service or for the
the Civil Code, in relation to Section 14(2) of the Property development of the national wealth.12 Land belonging to the State
Registration Decree, applied in their favor; and that when that is not of such character, or although of such character but no
Malabanan filed the application for registration on February 20, longer intended for public use or for public service forms part of
1998, he had already been in possession of the land for almost 16 the patrimonial property of the State.13 Land that is other than
years reckoned from 1982, the time when the land was declared part of the patrimonial property of the State, provinces, cities and
alienable and disposable by the State. municipalities is of private ownership if it belongs to a private
individual.
The Republic’s Motion for Partial Reconsideration
Pursuant to the Regalian Doctrine (Jura Regalia), a legal concept
The Republic seeks the partial reconsideration in order to obtain first introduced into the country from the West by Spain through
a clarification with reference to the application of the rulings in the Laws of the Indies and the Royal Cedulas,14 all lands of the
Naguit and Herbieto. public domain belong to the State.15 This means that the State is
the source of any asserted right to ownership of land, and is lands of private ownership under Article 425 of the Civil
charged with the conservation of such patrimony.16 Code,23 without limitation; and (b) lands of the public domain, or
the public lands as provided by the Constitution, but with the
All lands not appearing to be clearly under private ownership are limitation that the lands must only be agricultural. Consequently,
presumed to belong to the State. Also, public lands remain part of lands classified as forest or timber, mineral, or national parks are
the inalienable land of the public domain unless the State is shown not susceptible of alienation or disposition unless they are
to have reclassified or alienated them to private persons.17 reclassified as agricultural.24 A positive act of the Government is
necessary to enable such reclassification,25 and the exclusive
Classifications of public lands prerogative to classify public lands under existing laws is vested
according to alienability in the Executive Department, not in the courts.26 If, however,
public land will be classified as neither agricultural, forest or
Whether or not land of the public domain is alienable and timber, mineral or national park, or when public land is no longer
disposable primarily rests on the classification of public lands intended for public service or for the development of the national
made under the Constitution. Under the 1935 wealth, thereby effectively removing the land from the ambit of
Constitution,18 lands of the public domain were classified into public dominion, a declaration of such conversion must be made
three, namely, agricultural, timber and mineral.19 Section 10, in the form of a law duly enacted by Congress or by a Presidential
Article XIV of the 1973 Constitution classified lands of the public proclamation in cases where the President is duly authorized by
domain into seven, specifically, agricultural, industrial or law to that effect.27 Thus, until the Executive Department
commercial, residential, resettlement, mineral, timber or forest, exercises its prerogative to classify or reclassify lands, or until
and grazing land, with the reservation that the law might provide Congress or the President declares that the State no longer
other classifications. The 1987 Constitution adopted the intends the land to be used for public service or for the
classification under the 1935 Constitution into agricultural, forest development of national wealth, the Regalian Doctrine is
or timber, and mineral, but added national parks.20 Agricultural applicable.
lands may be further classified by law according to the uses to
which they may be devoted.21 The identification of lands Disposition of alienable public lands
according to their legal classification is done exclusively by and
through a positive act of the Executive Department.22 Section 11 of the Public Land Act (CA No. 141) provides the
manner by which alienable and disposable lands of the public
Based on the foregoing, the Constitution places a limit on the type domain, i.e., agricultural lands, can be disposed of, to wit:
of public land that may be alienated. Under Section 2, Article XII of
the 1987 Constitution, only agricultural lands of the public Section 11. Public lands suitable for agricultural purposes can be
domain may be alienated; all other natural resources may not be. disposed of only as follows, and not otherwise:

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

WHEREFORE, the Court DENIES the petitioners' Motion for


Reconsideration and the respondent's Partial Motion for
Reconsideration for their lack of merit.

SO ORDERED.