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CONSTITUTIONAL REDEMPTION AND THE ROAD TO RECOGNIZING INDIGENOUS FILIPINOS IN A TRANSPLANTED CHARTER *

Allan Chester Nadate **

In every human society, there is an effort continually tending to confer on one part the height of power and happiness, and to reduce the other to the extreme of weakness and misery. The intent of good laws is to oppose this effort, and to diffuse their influence universally and equally.” —Cesare Beccaria 1

As a result of colonial and post-colonial legislation mired in Western ethnocentrism, indigenous Filipino communities suffered deeply from the effects of marginalization. For hundreds of years, they were denied considerable social, economic, and political involvement in the administration of national affairs and in the charting of their own fates as distinct peoples.

The recent recognition of some of their rights, however, alleviated the ignominy of the injustices they have faced. The passing of the Indigenous Peoples’ Rights Act 2 crystallized the country’s sincere though belated attempt to empower cultural minorities. Accordingly, Cruz v. Secretary of Environment and

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* Cite as Allan Chester Nadate, Review, Constitutional Redemption and the Road to Recognizing Indigenous Filipinos in a Transplanted Charter, 88 PHIL. L.J. 640, (page cited) (2014). This article is a review of Owen J. Lynch, Jr., Native Title, Private Right and Tribal Land: An Introductory Survey, 57 PHIL. L.J. 268 (1982). ** J.D., University of the Philippines (2018, expected); B.S. Nursing, University of the Philippines Manila (2012). Projects Associate, Health Futures Foundation, Inc. Academic Excellence Awardee for the Visayas, Vice President Academic Excellence and Exemplary Leadership Awards (2008); Awardee, Philippine Information Academy IWAG Award (2008). The author would like to thank Professor Dante Gatmaytan of the University of the Philippines College of Law for his valuable insights. The author would also like to acknowledge the assistance of Dr. Jaime Z. Galvez Tan, Gian Carlo Velasco, Anne Janelle Rabe, and Efren II R. Resurreccion.

1 CESARE BECCARIA-BONESANA, AN ESSAY ON CRIMES AND PUNISHMENTS BY THE MARQUIS BECCARIA OF MILAN WITH A COMMENTARY BY M. DE VOLTAIRE (1972).

2 Rep. Act No. 8371 (1997).

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Natural Resources 3 (“Cruz”), which upheld the same law’s constitutionality, became more than just an ordinary case resolved on procedural grounds; the En Banc resolution, as well as the separate opinions of Justice Santiago M. Kapunan and Justice Reynato S. Puno, created a defining shift in constitutional law, reaffirmed the same law’s redemptive value, and established a canonical discourse on pragmatic jurisprudence.

The separate opinions of Justices Kapunan and Puno greatly relied on the legal research published more than 30 years ago in the PHILIPPINE LAW JOURNAL (“PLJ”) by Professor Owen J. Lynch. As part of the Special Centennial Issue of the PLJ, this review will discuss the impact of Professor Lynch’s articles on Cruz and demonstrate how his theses were adopted and made the critical bases of the arguments that redefined ancestral and cultural rights and enhanced the self-determination of the indigenous peoples 4 of the Philippines.

I

Legal transplantation and Western ethnocentrism in colonial and post- colonial political philosophy grafted one of the most obstinate forms of institutionalized injustices in the nation’s history. 5 The pervasive and enduring colonial imprint on Philippine culture left by almost four centuries of subjugation has reduced indigenous cultural communities into indigenous peoples with “no hope for the future […] unless their historical and legal claims […] are meaningfully recognized and protected.” 6

For decades, the subject of their fate was brushed aside under the rug of obscurity, a cavalier and systematic approach to a problem that is neither temporary nor insignificant. Only recently has the nation recovered from this

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3 Cruz v. Secretary of Environment and Natural Resources, G.R. No. 135385, 347 SCRA 128, Dec. 6, 2000.

4 Owen J. Lynch, Jr., Invisible Peoples and a Hidden Agenda: The Origins of Contemporary Philippine Land Laws (1900-1913), 63 PHIL. L.J. 249 (1988).

5 See generally OWEN J. LYNCH, JR., COLONIAL LEGACIES IN A FRAGILE REPUBLIC:

PHILIPPINE LAND LAW AND STATE FORMATION (2011); Dante B. Gatmaytan, Ancestral Domain Recognition in the Philippines: Trends in Jurisprudence and Legislation, 5 PHIL. NAT. RES. L.J. 43 (1992) [hereinafter “Ancestral Domain Recognition”]; Owen J. Lynch, Jr., The Philippine Colonial Dichotomy: Attraction and Disenfranchisement, 63 PHIL. L.J. 112 (1988); Owen J. Lynch, Jr., Land Rights, Land Laws and Land Usurpation: The Spanish Era (1565-1898), 63 PHIL. L.J. 82 (1988); Owen J. Lynch, Jr., The Legal Bases of Philippine Colonial Sovereignty: An Inquiry, 62 PHIL. L.J. 279 (1987); Ma. Lourdes Aranal-Sereno & Roan Libarios, The Interface Between National Land Law and Kalinga Land Law, 58 PHIL. L.J. 420 (1983) [hereinafter “Interface”].

6 Owen J. Lynch, Jr., Native Title, Private Right and Tribal Land: An Introductory Survey, 57 PHIL. L.J. 268, 306 (1982) [hereinafter “Native Title”].

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“legal irritation” 7 by espousing a firmer resolve to better respect human rights and make more equitable the redistribution of the state’s resources.

It is to the credit of the present Constitution’s framers that they took steps to transform the country’s nomocracy towards a “legal regime whose chief characteristic is its indigeneity,” 8 founding a new republic defined by the antecedent disestablishment of civil liberties under the 1973 Constitution.

The reconstruction of the nation’s democracy signaled a historical vindication and affirmative action for the rights of indigenous Filipinos. Rather than being a mere general provision, the present Constitution “recognizes and promotes the rights of indigenous cultural communities within the framework of national unity and development” as a mandate of state policy. 9 A decade after the ratification of the present Constitution, Congress solidified this largely directory provision into an effective legislative pronouncement by passing the Indigenous Peoples’ Rights Act of 1997. This denouement for the legal recognition of indigenous Filipinos has, however, also provoked a tide of conflicting interests and a surge of novel constitutional questions.

II

The Indigenous Peoples’ Rights Act (“IPRA”) serves to “protect the rights of [indigenous cultural communities or indigenous peoples] to their ancestral domain to ensure their economic, social and cultural well being.” 10

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7 See Gunther Tuebner, Legal Irritants: Good Faith in British Law or How Unifying Law Ends Up in New Divergences, 61 MOD. L. REV. 11 (1998).

8 Frederick Schauer, The Politics and Incentives of Legal Transplantation, Harvard University Center for International Development Working Paper No. 44, at 1-2 (2000). See also Atong Paglaum, Inc. v. Commission on Elections, G.R. No. 203766, 649 SCRA 477, Apr. 2, 2013 (Sereno, C.J., concurring and dissenting); Antonio La Viña, The Creation of the Bangsamoro: Issues, Challenges, and Solutions, 2 PHIL. L & SOCY REV. 3 (2013); Marvic M.V.F. Leonen, United Nations Development Programme, The Irony of Social Legislation: Reflections on Formal and Informal Justice Interfaces and Indigenous Peoples in the Philippines (2007) [hereinafter “Irony of Social Legislation”]; Marvic M.V.F. Leonen, Law at its Margins: Questions of Identity, Rights of Indigenous Peoples, Ancestral Domains and the Diffusion of Law, 83 PHIL. L.J. 787 (2009) [hereinafter “Law at its Margins”]; Vicente Paolo B. Yu III, Undermining Indigenous Land Rights: The Impact of Mining Rights on Private Land Rights of ICCs/IPs in the Philippines, 74 PHIL. L.J. 658, 658-62 (2000).

9 CONST. art. II, § 22. (Emphasis supplied.) Compare CONST. (1973) art. XV, § 11. It provides: “The State shall consider the customs, traditions, beliefs, and interests of national cultural communities in the formulation and implementation of state policies.” 10 Rep. Act No. 8371 (1997), § 2(b). It provides: “The State shall protect the rights of [indigenous cultural communities and indigenous peoples] to their ancestral domains to ensure their economic, social and cultural well being and shall recognize the applicability of customary

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Besides giving formal and comprehensive recognition to their unique traditions, it was noted:

The landmark enactment of IPRA signaled two paradigm shifts in the way the government regarded indigenous peoples. First, it challenged the notion that the state had a monopoly on the exercise of the law. [It] recognizes indigenous legal systems which can be used for dispute resolution, identification of the extent of ancestral domains, and decisions on the exploitation of resources, among others. It also recognizes their right to self-determination. Second, it abandoned the perception that indigenous peoples caused the degradation of forests. 11

Shortly after its enactment, critics of the law assailed its validity by claiming that its provisions violated the “constitutionally guaranteed right of the state to control and supervise the exploration, development, utilization and conservation of the country’s natural resources.” 12

The Court’s resolution in Cruz upheld the statute and inspired a constitutional shift. The separate opinion of Justice Santiago M. Kapunan 13 and the separate opinion of Justice Reynato S. Puno 14 marked out an exception to the long-held doctrine of jura regalia and solidified the indigenous Filipinos’ rights to ancestral lands, particularly by extending judicial recognition to native titles. As noted by observers, the Court ruled that ancestral lands were private lands because they were presumed never to have been public: !

The decision of the Philippines Supreme Court recognized the private nature of ancestral domains, segregating them from the public domain and the legal concepts that were used to challenge the [Act’s] constitutionality. […] [C]learly, the new law strengthened indigenous peoples’ rights to their ancestral domains and cultural integrity. 15

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laws governing property rights or relations in determining the ownership and extent of ancestral domain.”

11 Cielo Magno & Dante B. Gatmaytan, Free Prior and Informed Consent in the Philippines, Regulations and Realities, Oxfam America Briefing Paper, at 5 (Sept. 2013). (Citations omitted.) See also Irony of Social Legislation, supra note 8, at 17-30; June Prill-Brett, Contested Domains: The Indigenous Peoples’ Rights Act (IPRA) and Legal Pluralism in the Northern Philippines, 55 J. LEGAL PLURALISM 11, 16-17 (2007).

12 Id. at 6 n.15. See generally Marvic M.V.F. Leonen, Implications of Constitutional Challenges to the Indigenous Rights Act of 1997, 30 J. INTEG. BAR PHIL. 153 (2004).

13 Cruz v. Secretary of Environment and Natural Resources, 347 SCRA 128, 247 (Kapunan, J., separate).

14 Id. at 162 (Puno, J., separate).

15 Magno & Gatmaytan, supra note 11, at 6-8.

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In both the enactment of the law and the release of the decision, the legislators and the Court relied heavily on the colonial case of Cariño v. Insular Government 16 (“Cariño”) promulgated by the Supreme Court of the United States, with Justice Oliver Wendell Holmes, Jr. as the ponente.

Senator Juan Flavier, in his sponsorship speech, asserted that the doctrine laid in Cariño provided the exemption to the Regalian doctrine “reinstated in Section 2, Article XII of the 1987 Constitution.” 17 Representative Gregorio Andolana, in his sponsorship speech in the House of Representatives, referred to Cariño when he opined that native titles had resulted to ownership of lands long occupied by members of indigenous cultural communities. 18

The separate opinion of Justice Santiago M. Kapunan, in which Chief Justice Hilario G. Davide, Jr., and Justices Josue N. Bellosillo, Leonardo A. Quisumbing, and Consuelo Ynares-Santiago concurred, recognized the apparent conflict between the Regalian doctrine and Cariño, but categorically concluded that:

The Regalian theory […] does not negate native title to lands held in private ownership since time immemorial. In the landmark case of Cariño vs. Insular Government, the United States Supreme Court, reversing the decision of the pre-war Philippine Supreme Court, […] institutionalized the recognition of the existence of native title to land, or ownership of land by Filipinos by virtue of possession under a claim of ownership since time immemorial and independent of any grant from the Spanish Crown, as an exception to the theory of jura regalia. 19

The separate opinion of Justice Reynato S. Puno likewise accepted the validity of the concept of native titles in Cariño and declared that ancestral lands and ancestral domains are not part of the lands of the public domain, having been “occupied, possessed and utilized by individuals, families and clans who are members of the [indigenous cultural communities and peoples] since time immemorial.” 20 He added that “Cariño firmly established a concept of private land title that existed irrespective of any royal grant from the State[.] […] Native title

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16 212 U.S. 449 (1909) [hereinafter “Cariño”].

17 Sen. Juan Flavier, Sponsorship Speech of S. No. 1728, 10 th Cong., 2 nd Sess. (Oct. 16,

1996).

18 Cruz v. Secretary of Environment and Natural Resources, 347 SCRA 128, 194-95 n.114-115 (Puno, J., separate).

19 Id. at 268-269 (Kapunan, J., separate).

20 Rep. Act No. 8371, § 3(b). Compare Rep. Act No. 8371, §§ 3(a), (h), (p) & 56.

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presumes that the land is private and was never public. Cariño is the only case that specifically and categorically recognizes native title.” 21

Cruz fundamentally crystallized Cariño as a constitutional canon to legitimize indigenous and customary laws—long delegitimized by impositions in the legal order and long misinterpreted to defeat its very purpose 22 —and make them viable sources of rights in the nation’s young democracy. Pre-Cruz interpretations of Cariño construed this historical case not as a canon establishing the legality of indigenous people’s native titles to ancestral lands, but merely as a land registration doctrine. 23 It is in the repudiation of this misreading that Cruz rediscovered Cariño. And a large measure of the credit goes to Professor Owen Lynch, Jr. and to his papers published in the PLJ.

III

The rediscovery of the true Cariño doctrine by Professor Owen J. Lynch, Jr. became the ground upon which the Philippines’ Brandeis brief for upholding ancestral land rights would take root. 24 The revisiting of Cariño remains one of the most important contributions of the academe in the entire discourse on indigenous peoples’ rights. This event was as serendipitous as it was momentous. To quote Professor Lynch:

[W]hile I was in the law library researching Philippine Supreme Court decisions on property rights, I came across a little known, and often interpreted, 1909 decision of the U.S. Supreme Court titled Cariño v.

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21 Cruz v. Secretary of Environment and Natural Resources, 347 SCRA 128, 199, 215 (2000) (Puno, J., separate). (Emphasis supplied.)

22 See, e.g., Director of Lands v. Buyco, G.R. No. 91189, 216 SCRA 78, Nov. 27, 1992; Susi v. Razon, 48 Phil. 424 (1925); Director of Lands v. Manila Electric Company, G.R. No. L- 57461, 153 SCRA 686, Sept. 11, 1987.

23 See, e.g., Director of Land Management v. Court of Appeals, G.R. No. 94525, 205 SCRA 486, Jan. 27, 1992; Director of Lands v. Bengzon, G.R. No. 54045, 152 SCRA 369, 376, July 28, 1987; Director of Lands v. Intermediate Appellate Court, G.R. No. 73002, 146 SCRA 509, Dec. 29, 1986; Mesina v. Pineda vda. de Sonza, 108 Phil. 251 (1960).

24 See Cruz v. Secretary of Environment and Natural Resources, 347 SCRA 128, 204- 205 (Puno, J., separate). Justice Puno opined: “It is observed that the widespread use of the term ‘native title’ may be traced to Professor Owen Lynch, Jr., a Visiting Professor at the University of the Philippines College of Law from the Yale University Law School. In 1982, Prof. Lynch published an article in the Philippine Law Journal entitled Native Title, Private Right and Tribal Land Law. This article was made after Professor Lynch visited over thirty tribal communities throughout the country and studied the origin and development of Philippine land laws. He discussed Cariño extensively and used the term ‘native title’ to refer to Cariño’s title as discussed and upheld by the U.S. Supreme Court in said case.” (Citations omitted, emphasis supplied.)

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Insular Government. […] My heartbeat quickened. I couldn’t believe it, and I couldn’t understand at that time why the decision was not widely known or understood, as it should be, by the Philippine Supreme Court and others in the legal community. […] Meanwhile, I was greatly affected, encouraged and inspired by the Cariño decision. 25

This epiphany and the subsequent publication of Native Title, Private Right and Tribal Land Law: An Introductory Survey (“Native Title”) by Professor Lynch in the PLJ catalyzed the indigenous peoples’ rights movement in the nation. It became a seminal piece in anti-colonial academic literature, a prelude to a fomenting indigenization and reformation of Philippine law, and the nation’s contribution to the “internationalization of indigenous rights from the environmental and human rights perspective.” 26

In the University of the Philippines College of Law, Prof. Lynch encouraged and inspired students in his course Philippine Indigenous Law, 27 a class which included the current Chief Justice Ma. Lourdes P.A. Sereno, whose paper with Atty. Roan Libarios was cited in the Puno separate opinion in Cruz; 28 Justice Marvic M.V.F. Leonen, 29 and Dean Antonio G.M. La Viña.

In the years that followed, Justice Leonen, with Dean La Viña and classmates Atty. Augusto B. Gaymaytan and Atty. Antoinette G. Royo, formed the Legal Rights and Natural Resources Center-Kasama sa Kalikasan/Friends of the Earth-Philippines 30 (“LRC-KSK”), a “policy and legal research and advocacy institution” whose goal was to “empower the marginalized and disenfranchised peoples directly dependent on our natural resources.” 31

The LRC-KSK published the Philippine Natural Resources Law Journal, and issued numerous research articles that clamored for the recognition of the ancestral land rights of Filipino indigenous peoples. 32 The LRC-KSK also

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THE

GRAND

25 Owen J. Lynch, An American Professor at U.P. Law: Memories and More, 1981-2011, in IN

(D. Concepcion, M.

MANNER: LOOKING BACK, THINKING

FORWARD 77-78

Leonen, C. Jardeleza & F. Hilbay, eds., 2013) [hereinafter “Memories and More”].

26 Jose Paulo Kastrup, The Internationalization of Indigenous Rights from the Environmental and Human Rights Perspective, 32 TEX. INTL. L.J. 97, 99 (1997). See also Cruz v. Secretary of Environment and Natural Resources, 347 SCRA 128, 238-41 (Puno, J., separate).

27 Memories and More, supra note 25, at 79-80.

28 Cruz v. Secretary of Environment and Natural Resources, 347 SCRA 128, 190 n.102 (Puno, J., separate). See Interface, supra note 5.

29 See Law at its Margins, supra note 8, at 788.

30 Id. at 789; Memories and More, supra note 25, at 85-86.

31 Legal Rights and Natural Resources Center-Kasama sa Kalikasan/Friends of the Earth-Philippines, About Us, at http://www.lrcksk.org (last visited July 7, 2014).

32 See, e.g. Augusto B. Gatmayan, Land Rights and Land Tenure Situation of Indigenous Peoples in the Philippines, 5 PHIL. NAT. RES. L.J. 5 (1992); Ancestral Domain Recognition, supra note 5; Marvic

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became instrumental in the drafting and enactment of the Indigenous Peoples’ Rights Act. 33 As Professor Lynch recalled:

I was aware from afar that the movement in favor of legal recognition of ancestral domain rights was gaining steam in the Philippines in the 1990’s, thanks in large measure to LRC-KSK[.] […] I still think it absolutely incredible that they successfully navigated a bill in 1997 through both houses of [C]ongress[.] […] I could not have reasonably hoped for its enactment—in a best case scenario—before the 2020s, if ever, but it happened more than two decades earlier than I had even imagined possible. 34

The members of the academe, through painstaking and careful exegeses of jurisprudence, spearheaded the production of a body of legal literature that analyzed ancestral domain as a concept in law and substantiated the theoretical positions assumed by their fellow reformists. In the words of Professor Dante B. Gatmaytan, who used to be a staff lawyer of LRC-KSK:

Instead of filing land registration cases which would have failed since few judges were even aware of Cariño, we decided to saturate the literature with research on Cariño and its progeny. By the time Cruz reached the Supreme Court, there was a discourse on ancestral domains that the Justices could not ignore. I joined LRC-KSK’s policy advocacy unit. We provided the research to persuade Congress to enact laws to protect the indigenous peoples’ ancestral domains. My motivation then was to illustrate that the Cariño doctrine is firmly entrenched in jurisprudence. 35

The strategy worked. In the years after the publication of Native Title, ancestral domain rights have become a prominent subject in legal research, converging in scholarly dialogues on environmental management, human rights, political reform, legal history, and public international law. 36 This outcome was

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M.V.F. Leonen, On Legal Myths and Indigenous Peoples: Re-examining Carino v. Insular Government, PHIL. NAT. RES. L.J. 1 (1990); Antoinette G. Royo, Regalian Doctrine: Wither the Vested Rights? 1 PHIL. NAT. RES. L.J. 1 (1988); Land Classification: Preliminary Notes on Implications for Upland Populations, 1 PHIL. NAT. RES. L.J. 18 (1988).

33 Memories and More, supra note 25, at 86-87.

34 Id. at 86.

35 Interview with Professor Dante B. Gatmaytan (June 23, 2014).

36 See OWEN J. LYNCH, MANDATING RECOGNITION: INTERNATIONAL LAW AND

NATIVE/ABORIGINAL TITLE (Rights and

GATMAYTAN, NEGOTIATING AUTONOMY: CASE STUDIES ON PHILIPPINE INDIGENOUS PEOPLES

LAND RIGHTS (2007); June Prill-Brett, Contested Domains: The Indigenous Peoples’ Rights Act (IPRA) and Legal Pluralism in the Northern Philippines, 55 J. LEGAL PLURALISM 11, 16-17 (2007); Owen J. Lynch, Concepts and Strategies for Promoting Legal Recognition of Community-Based Property Rights: Insights

Resources

Initiative

ed.,

2011);

AUGUSTO

B.

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not a result of a largely passive academe building on new knowledge, but rather a “deliberate effort” to pave “the road to Cruz37 and to promote social justice, self-governance, empowerment, and cultural integrity.

In fact, even prior to the Indigenous Peoples’ Rights Act, the Cariño doctrine mainstreamed by Native Title was already adopted in the Organic Act for the Cordillera Autonomous Region, 38 which sanctioned ancestral lands “possessed or occupied by indigenous cultural communities since time immemorial.” 39 During the drafting of the Organic Act, “it was pointed out that the provisions on ancestral domains were actually ‘a restatement of th[e] principle enunciated in the case of Cariño.’” 40

Thus, more than lending “historical legal details,” discussing the term “native title,” or bolstering statements of fact, 41 Native Title and the slew of literature it engendered advanced the noble cause of a neglected segment of the population by energizing an army of conscientious activists and urging them to capitalize on the unique tools of the academe to extract from confusion a doctrine long aspired for, and to move forward with laws long delayed.

The

textual

history

of

Native

Title,

the

rediscovery

of

Cariño,

the

implementation of the Indigenous Peoples’ Rights Act, and the decision in Cruz reveal the potential of the academe and the PLJ to shape the destiny of Philippine legal history.

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from the Philippines and Other Nations, in COMMUNITIES AND CONSERVATION: HISTORIES AND

POLITICS OF COMMUNITY-BASED NATURAL RESOURCE MANAGEMENT (J.P. Brosious, A. Tsing &

C. Zerner eds., 2005); Jose Mencio Molintas, The Philippine Indigenous Peoples’ Struggle for Land and Life: Challenging Legal Texts, 21 ARIZ. J. INTL. & COMP. L. 269 (2004); Siegfried Wiessner, Rights and Status of Indigenous Peoples: A Global Comparative and International Legal Analysis, 12 HARV. HUM. RTS. J. 57 (1999); Frank Hirtz, The Discourse that Silences: Beneficiaries’ Ambivalence towards Redistributive Land Reform in the Philippines, 29 DEVT. & CHANGE 247 (1998); Malcolm Cairns, Ancestral Domain and National Park Protection: Mutually Supportive Paradigms? A Case Study of the Mt. Kitanglad Range National Park, Bukidnon, Philippines, 25 PHIL. Q. CUL. & SOCY 31 (1997); Roberto Benedito, The Emerging International Standard on Indigenous Peoples’ Rights: Issues and Implications for Mission Work in Third World Countries, 24 MISSIOLOGY 227 (1996); OWEN J. LYNCH & KIRK TALBOTT, BALANCING

ACTS: COMMUNITY-BASED FOREST MANAGEMENT AND NATIONAL LAW IN ASIA AND THE

PACIFIC (World Resources Institute, 1995); Owen J. Lynch, Jr. & Kirk Talbott, Legal Responses to the Philippine Deforestation Crises, 20 N.Y.U. J. INTL. L. & POL. 679 (1987-1988).

37 Ancestral Domain Recognition, supra note 5.

38 Rep. Act No. 6766 (1989). An Act Providing for an Organic Act for the Cordillera Autonomous Region. See, however, Ordillo v. Commission on Election, G.R. No. 93054, 192 SCRA 100, Dec. 4, 1990.

39 Rep. Act No. 6766 (1989), art. XI, § 1.

40 Ancestral Domain Recognition, supra note 5, at 75 n.90.

41 Oscar Franklin Tan, Sisyphus’ Lament, Part I: The Next Ninety Years and the Transcendence of Academic Legal Writing, 79 PHIL. L.J. 7, 8-9 (2004).

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Cruz follows a string of cases that slowly transformed the legal environment, making it more hospitable to the reification of the rights of those who have been, and continue to be, mistreated by extant institutions. 42 It neutralizes a heteronomy established and pursued to accommodate imperialism and exclusivism.

Beyond Cruz and countermanding racist and discriminatory pre-war anti-canons, 43 the rediscovery and reapplication of the Cariño doctrine makes real the inspired prose of the petitioner himself:

The Supreme Court is not only the highest arbiter of legal questions but also the conscience of the government. […] A new spirit is now upon our land. A new vision limns the horizon. Now we can look forward with new hope that under the Constitution of the future every Filipino shall be truly sovereign in his own country, able to express his will through the pristine ballow with only his conscience as his counsel. 44

The positive fiat of Congress has created vested rights by recognizing the weight in law of native titles, rights which cannot be abrogated by either the Legislative or the Executive without due process. The presumptive constitutionality of the Indigenous Peoples’ Rights Act has neutralized a monopoly of legality that has left generations of indigenous Filipinos and their communities without remedy in the courts.

The protection of the Filipino katutubo in an era of fragmentism and inchoate democracy that Native Title once yearned for has now inched into an observable reality. At the very least, it has transformed a previous attitude of abandonment and disregard into one of “awareness and pride in the indigeneity

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42 Association of Small Landowners in the Philippines, Inc. v. Secretary of Agrarian Reform, G.R. No. 78742, 175 SCRA 343, July 14, 1989; De Chavez v. Zobel, G.R. 28609, 55 SCRA 26, Jan. 17, 1974; De Ramas v. Court of Agrarian Relations, G.R. No. 19555, 11 SCRA 171, May 29, 1964; Commonwealth v. De Borja, 88 Phil. 51 (1949); Guido v. Rural Progress Admin., 70 Phil. 340 (1949); Antamok Goldfields Mining Co. v. Court of Industrial Relations, 70 Phil. 340 (1940).

43 Rubi v. Provincial Board of Mindoro, 39 Phil. 660 (1919); People v. Cayat, 68 Phil. 2 (1939); Cariño v. Insular Gov’t, 8 Phil. 150 (1907), overturned by Cariño, 212 U.S. 449 (1909).

44 Javier v. Commission on Elections, G.R. No. 68379, 144 SCRA 194, 198, 209, Sept.

22, 1986.

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of the Philippines, and its importance to law, justice, and the promotion of human dignity.” 45

V

Notwithstanding the magnitude of the changes discussed in this paper, much remains to be done to fully realize the equality of rights that the Constitution guarantees to indigenous Filipinos. Even with the passing of the Indigenous Peoples’ Rights Act, the road to effective recognition of their rights remains exceedingly littered with substantial legal and administrative roadblocks. 46

Meaningful legal reforms are still necessary to completely effectuate the provisions of the Act and the Constitution. In this respect, legal scholars should continue to provide sober assessments of the law, guiding it towards a paradigm that protects the rights of indigenous peoples and reducing to the greatest extent possible the ignorance of history and recrudescence of prejudice.

It is in this vein that the prelude of Justice Puno quoted Chief Judge Richard Posner:

Law is the most historically oriented, or if you like the most backward- looking, the most ‘past-dependent,’ of the professions. It venerates tradition, precedent, pedigree, ritual, custom, ancient practices, ancient texts, archaic terminology, maturity, wisdom, seniority, gerontocracy, and interpretation conceived of as a method of recovering history. […] These ingrained attitudes are obstacles to anyone who wants to re-orient law in a more pragmatic direction. But, by the same token, pragmatic jurisprudence must come to terms with history. 47

- o0o -

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45 Memories and More, supra note 25, at 102.

46 See Legal Rights and Natural Resources Center-Kasama sa Kalikasan/Friends of the Earth-Philippines, A Report to the United Nations Special Rapporteur on Indigenous Peoples on Human Rights Violations Suffered by the T’Boli-Manobo Community of Barangay Ned, Lake Sebu, South Cotabato, Philippines, at https://docs.google.com/file/d/0B2F40TVHmKeiZkR3U3dHX3BGWTg; Ruth Sidchogan-Batani, Implementation of the Indigenous Peoples Rights Act (IPRA) in the Philippines: Challenges and Opportunities, Background Paper for the Expert Seminar on Treaties, Agreements and Other Constructive Arrangements between States and Indigenous Peoples held in Geneva, at 4-9

(2003).

47 Cruz v. Secretary of Environment and Natural Resources, 347 SCRA 128, 162-63 (Puno, J., separate), citing Richard Posner, Past-Dependency, Pragmatism, and Critique on History in Adjudication and Legal Scholarship, 67 U. CHI. L. REV. 573 (2000).

EXCERPTS FROM NATIVE TITLE, PRIVATE RIGHT AND TRIBAL LAND LAW:

AN INTRODUCTORY SURVEY *

Owen James Lynch, Jr.

Filipinos of every political persuasion lament the pervasive and enduring colonial imprint on Philippine culture. Many fail to appreciate, however, that indigenous ethnic groups—or National Cultural Communities—never surrendered to the colonial invaders and to this day have chosen to retain cultural identities found only in the Philippines […]

* * *

[…] This Article focuses on the most threatening manifestation of colonial prejudice affective Tribal Filipinos today: the ongoing loss of ancestral land. 7

* * *

I. TRIBAL FILIPINO OVERVIEW

* * *

Most tribal Filipinos are believed to live on lands of the “public” domain. As of 1980, classified public lands totaled 16.7 million hectares or 55% of the total land area of the Philippines. 16 Exact figures are as yet impossible to obtain but a reasonable guess is that more than 7.5 million Filipinos live on these lands, 17 including at least 4.5 million Tribal Filipinos. Expressed in another way,

* These are excerpts from Owen James Lynch, Jr., Native Title, Private Right and Tribal Land Law: An Introductory Survey, 57 PHIL. L.J. 268 (1982). The excerpts, including the accompanying footnotes, are republished as they were in the original. 7 Pursuant to Pres. Decree No. 410, sec. 1 (1974), ancestral lands are considered to be “all unappropriated agricultural lands forming part of the public domain” as of March 11, 1974 which have been “occupied and cultivated by members of the Natural Communities” for at least ten years. The author, however, uses a more conservative definition. In this paper, ancestral land

refers to areas occupied by Tribal Filipinos since at least July 4, 1955. See Com. Act No. 144 (1936), sec. 4 as amended. Original ancestral lands are lands occupied by Tribal Filipinos prior to

1850.

16 MNR Bureau of Lands figures for year end, 1980. 17 The MNR Bureau of Forest Development Upland Development Working Group quotes the 7.5 million population estimate in its brochure, BFD Upland Development Program (1981).

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65% of all Filipinos living on “public” land today are tribal […]

II. INDIGENOUS CUSTOM LAW

[…] As in many tribal communities today…generalized patterns of territorial behavior – or ownership – existed throughout the archipelago.

“It was a widespread custom in the large island of the Pacific that any man acquired for himself and his close kin long term rights to land which he cleared from virgin bush, at least as long as it was used.” 21 […]

* * *

[…] Not surprisingly, the disregard of ancient custom in lieu of Western land laws has caused tension, conflict and death in many tribal communities.

* * *

III. THE SPANISH ERA

[…] Between 1523 and 1646 at least twenty one laws were enacted which made clear that the distribution of land rights to loyal Spanish subjects was not to impair the rights and interest of the natives in their holdings. 35

[…] On June 25, 1880 another Royal Decree emphasized that all persons in possession of real property were to be considered owners provided that they had in good faith occupied and possessed their claimed land for at least ten years. 39

* * *

21 CROCOMBE, LAND TENURE IN THE PACIFIC 2 (1971).

35 Laws of the Indies: Book 2, Title 1, Laws 4 (1555) and 5 (1529); Book 4, Title 2, Laws 6 (1621), 8 (1523) and 10; Book 4, Title 12, Laws 5 (1532), 7 (1588), 9 (1594), 14 (1578), 16 (1531,

17

(1546), 18 (1642) and 19 (1646); Book 6, Title 1, Laws 1 (1580), 15 (1574), 23 (1609), 27 (1571),

30

(1546) and 32 (1580); Book 6, Title 3, Laws 9 (1580) and 26 (1528). Complied in “Brief on

Behalf of Plaintiff in Error”, Supreme Court of the United States, October Term 1907, Carino v Insular Government pp. 20-36 (hereinafter referred to as Petitioner’s Brief).

39 Id . at 17-21. [MAÑALAC, THE DEVELOPMENT OF LAND LAWS AND REGISTRATION IN

THE PHILIPPINES (1960).]

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IV. NATIVE TITLE

A. The Cariño Decision

* * *

653

On June 22, 1903, Mateo Carino, an Igorot filed a petition with the Court of Land Registration asking that he be registered as the owner of a 146 hectare parcel of original, ancestral land in Benguet Province which had been used for swidden agriculture and pasture. 48 […] He claimed that he and his ancestors had used and occupied the land immemorial. […]

Although opposed by the Philippine and United States governments, the Court of Land Registration approved the petition. On appeal, the Benguet Court of First Instance reversed. This was upheld by the Philippine Supreme Court in 1906 in the case of Carino v. Insular Government. 49 […]

* * *

Remarkably, the decision reached the U.S. Supreme Court by writ of error. […]

[The Supreme Court] reversed the Philippine decision and held that Carino owned the land in question. 51 […]

* * *

Carino remains a landmark decision. It establishes an important precedent in Philippine jurisprudence: Igorots, and by logical extension other Tribal Filipinos with comparable customs and long associations, have constitutionally protected native titles to their ancestral lands. […]

* * *

48 Petitioner’s Brief, supra note 35 at 2-3. The Brief states that Carino “cultivated camotes (potatoes) and palay rice and…pastured his cattle.” 49 7 Phil. 132 (1906). 51 Petitioner’s Brief, op cit. note 32.

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B. The Public Land Acts and the Property Registration Decree

Shortly after Carino filed his petition for registration, the Philippine Commission passed the first Public Land Act 63 which among other things provided that:

“All persons who by themselves or their predecessors in interest have been in open, continuous, exclusive and notorious possession and occupation of agricultural public land…under a bona fide claim of ownership…for a period of ten years…shall be conclusively presumed to have performed all conditions essential to a government grant and to have received the same, and shall be entitled to a certificate to such land. (Emphasis supplied.) 64

* * *

Although the Act applies to all public land, its scope is limited to agricultural lands “which have been officially delimited and classified, and then practicable, surveryed, and which have not…in any manner become private property.” 77 The Act’s private property proviso exempts land owned pursuant to native title from the classification requirement. […] In order to satisfy the government’s legitimate and compelling interest in knoweing what lands belong to the public domain, native titles should be recorded pursuant to the Property Registration Decree. […]

* * *

At present however, the registration of native titles pursuant to the Property Registration Decree is not permitted.

* * *

D. The Classification of Public Agricultural Land

Lands owned by Tribal Filipinos purusant to Carino are “presumed…to never have been public land.” 97 These native titles vested long before the alienation of public land was limited to agricultural property. The Public Land Acts, however, are limited in coverage to “agricultural public land.” […]

63

64

77

97

Act No. 926 (1903).

Id. at chapt. VIII.

Com. Act No. 141 (1936), as amended, sec. 8.

Cariño, op cit. note 32 at 941. [Cariño v. Insular Government, 41 Phil. 935, 941 (1909).]

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655

In 1908, the Philippine Supreme Court ruled that “public lands which are not timber or mineral lands are necessarily agricultural public lands whether they are used as nipa swamps, manglares, fisheries or ordinary farm lands.” Mapa v. Insular Government. 104 Ten years later, in Ramos v. Director of Lands, 105 the Supreme Court expanded on the definition and said that the “presumption should be, in lieu of contrary proof, that land is agricultural in nature.” 106

It appears, however, there was a profound but gradual change in public land policy. Contrary to the rulings in Mapa and Ramos, the Forestry Bureau began to presume that lands were to be classified as agricultural only if the Director of Forestry did not consider them to be forest. […]

* * *

Qualified long term occupants, however, who by operation of law have acquired private title to agricultural lands located within unclassificed portions of the public domain, or portions which have been inappropriately classified as forest, find it difficult, if not impossible, to acquire formal recognition of title in practical, non-theoretical terms unless they can surmount the classification hurdle. These same concerns affect Tribal Filipinos who, pursuant to custom and long association, as well as the Public Land Acts, hold native titles to their ancestral land. […]

* * *

E. Colonial Attitudes and Indigenous Kaingeros

Besides the imported prejudice against Tribal Filipinos, there exists a parallel prejudice towards swidden agriculture, or kainigin as it is known in the Philippines. The widespread, colonially inspired hostility towards swidden agriculture is an oft cited justification for the refusal to recognize tribal ownership of land. […]

A

more

humane

and

***

productive

–both

104 10 Phil 1975, 182 (1908).

environmentally

and

105 39 Phil. 175 (1918). See also Ankron v. Government, 40 Phil. 10 (1919). “It is a matter of public knowledge that a majority of the land in the Philippine Islands are agricultural lands.” Id at 16.

106 Ramos, supra at 186.

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economically attitude towards kaingin agriculture would distinguish between kaingins made by inexperienced, migrant poor and those made by environmentally astute, indigenous kaingeros who swidden systems have for centuries thrived among lush, forested slopes. […]

* * *

[…] Failure to recognize native title serves as notice to outsiders that ancestral lands are open for exploitation. […] As land grabbing intensifies, the thin, tropical topsoil becomes depleted by overuse. The end result is that environmentally astute Tribal Filipinos not only suffer hunger, malnutrition and the loss of their ancestral lands, they are branded as agents of forest destruction.

F. Taxation, Mortgages and Foreclosures

* * *

[…] [t]he Forestry Code’s provision on the payment of real estate taxes bolsters the claim to native title. The tax provision is implicit recognition that unlike lowland migrants who only recently entered into the classified forest zone, Tribal Filipinos are a unique class of occupants with corresponding obligations and privileges. The obligation is “the duty of all persons…owning or administering real property” to pay real estate taxes. 134 The privilege is to be recognized as owners of private property.

* * *

In essence, many Tribal Filipinos possess every attribute of title to their ancestral lands but one. […] The only thing lacking is a certificate officially acknowledging ownership. But according the well established precedent, acquiring the certificate is a “mere formality” which does not affect the title. 139 This legal observation may not be widely known among Tribal Filipinos. It is, however, widely understood. […]

6. The Manahan Amendments

* * *

[…] Today, Section 44 of the Public Land Act provides that a Tribal

134 Pres. Decree No. 464 (1974), sec. 6. 139 Herico op. cit., note 72 at 22. [G.R. No. 23265, January 22, 1980, 95 SCRA 437

(1980).]

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Filipino who has “continuously occupied and cultivated by himself or through his predecessors-in-interest, a tract or tracts of land, whether disposable or not since July 4, 1955 shall be entitled to a free patent of up to 24 hectares. 141 (Emphasis supplied.) […]

* * *

Neither the Supreme Court not the Court of Appeals have ruled on the Constitutional question raised by the phrase “disposable or not.” […] Neither the 1935 nor the 1973 Constitution, however, require that public land be declared alienable and disposable prior to alienation. […] But assuming arguendo that a declaration of alienability and disposability is constitutionally mandated […] Presidential Decre No. 410 [Ancestral Land Decree] eliminates the barrier. The Decree declares “all unappropriated agricultural lands forming part of the public doman…and cultivated” by Tribal Filipinos since 1964 as “alienable and disposable.” 152

H. The Ancestral Land Decree

When it was enacted in 1974, many concerned Filipinos hoped that Presidential Decree No. 410 would alleviate the increasingly severe problem of ancestral land security. The Decree applied to 27 provinces. The Panay and Negros provinces, as well as Abra, Benguet, Quezon and the Camarines were excluded. […] Ancestral lands are to be subdivided in to five hectares family plots. Individual titles are to be given. 154

The Decree excludes from coverage areas reserved for public or quasi- public purposes. […]

Eight years after promulgation, no Tribal Filipino has acquired title to pursuant to the Ancestral Land Decree. 158

141

152

154

Com. Act No. 141 (91936), as amended, sec. 44, par. (2).

Pres. Decree No. 410 (1974).

Id. Sec. 3

158 The Bulletin Today reported in a front page story on April 4, 1982 the President’s interest in activating the Commission on the Sttelement of Land Problems. The Commission was established pursuant to Exec. Order No. 561 (1979). It succeeded the defunct Presidential Action committee on Land Problems (PACLAP) which was created by Pres. Decree No. 832. According to Bulletin Today, the President was quoted as saying that “Land problems are frequently a sourch of conflct among small settlers, land owners and members of cultural minorities.” Failure to address the problems “will breed social unrest.” The Commission is intended to provide an expedition mechanism fo rhte settlement of land problems.

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I. Native Americans and Aboriginal Title. 159

[…] During the American regime, government policy towards Tribal Filipinos was consistently made in reference to native Americans. […] The policy of segregation, however, “heightened existing divisions between a ‘national majority’…and a ‘national minority’.” 162 […] Nevertherless, from a legal point of view, certain benefits can be drawn from the comparison to the native Americans. The American judiciary has struggled for more than two hundred years with the ancestral land claims of indigenous Americans. Many of the decisions rendered support the Indian claim to land. Some of the decisions are part of the Philippine common law. All are of persuasive value in the Philippine context. 163

V. THE FOREST ZONE

A. Private Right

Many Tribal Filipinos have been driven away from their original ancestral homes and have resettled on land appropriately classified as forest. Most are eligible for title to these lands pursuant to the amended Public Land Act. 188 At minimum, however, their property rights are safeguarded by the concept of “private right” which si defined in the Revised Forestry Code as follows:

Private right means or refers to the titled rights of ownership under existing law, and in the case of national minorities to rights of possession existing at the time a license is granted under this Code, which possesison may include places of abode and worship, burial grounds and old clearings. 189

* * *

Ominously, if resources for identifying private rights, “are inadequate”, the prospective licensee may be authorized to identify them. 204 This, of course,

159 The author wishes to acknowledge his reliance in this section on Newton, At the Whim of the Sovereign: Aboriginal Title Reconsidered 31 Hastings L.J. 1215 (1980).

162

163

Parallels in Igorot and Muslim History, 1 SANDUGO 10 (1981).

U.S. v. Bustos, 37 Phil. 731 (1918); In re S’hoop, 41 Phil. 213 (1920).

Com. Act No. 141 (1936), as amended by Rep. Act No. 3872 (1964), secs. 44 and 48

(b) & (c).

189 Pres. Decree No. 705 (1975), as amended by Pres. Decree No. 1559 (1978), sec. 3 (mm). See infra, note 89.

188

204 Id. at sec. 3 (c). [DNR (Forestry Adm. Order No. 11 (1970).]

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creates a serious conflict of interest. A prospective timber licensee will not want

his concession to be encumbered by private rights. […]

Once the agreement is executed, aggrived parties have one year to assert their adverse claim. 205 […] Assuming that adversely affected Tribal Filipinos know of the agreement within one year of its execution, they would in most cases not be aware of the appeal procedure. […]

B. Social Forestry

* * *

Traditionally, […] many foresters adhere to an unofficial policy that the best way to protect the forest is to remove the forest occupants.

* * *

But in the fact of an alarming annual deforestation rate, […] traditional views are under increasing challenge. […]

[…] The [social forestry policy] includes efforts to “Draw more active citizen involvement in the forest conservation program” and to “Develop forests in a manner which will benefit the rural communities and a greater number of citizens.”

* * *

Although at least 65% of the people residing within the BFD version of the forest zone are Tribal Filipino, as of now, no social forestry program is

designed to recognize and reflect the unique factors found in tribal communities.

A promising economical prototype, however, does exist in the communal

ancestral land lease which utilizes and promotes existing social cohesion. […]

* * *

205 Id . at sec. 63.

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VI. ACCOUTREMENTS TO NATIVE TITLE AND PRIVATE RIGHT

A. Certification

In 1964, an amendment to the Pasture Land Act 216 was passed which provided that no pasture lease shall be granted within the forest zone in provinces which […] are inhabited by Tribal Filipinos, unless certification was obtained, […] that “no member of the national cultural minorities actually occupy any portion of the area applied for under pasture permit of lease.” […] But over the years the requisite certification has frequently not been obtained. As a result, the legality of many forest concessions is in doubt. 218

* * *

VII. TRIBAL RESERVATIONS

When the United States assumed sovereignty, the idea of establishing reservations for non-westernized Filipinos was introduced. […]

* * *

The earliest judicial recognition of tribal reservations occurred in the infamous 1919 case Rubi v. Provincial Board of Mindoro. 225 […]

* * *

By the time Rubi was decided, the colonial government had established twelve “non-Christian tribe” reservations pursuant to proclamation or executive order of the American Governor-General. […]

Since 1946, seven more reservations have been established by presidential proclamation pursuant to Section 84 of the Public Land Act. 251 They

216 Rep. Act No. 3985 (1964), sec. 1, amending Com. Act No. 452 (1938), sec. 3.

218 According to the 1981 Philippine Yearbook, Tribal Filipinos are located in every region of the country except from the Eastern Visayas and the provinces of Cavite, Batangas, Marinduque, Albay, Catanduanes and Sorsogon. Batas Pambansa Blg. No. 818, now pending, would expand the law to include all public lands. If passed no titles in the affected provinces could be legally issued without prior certification. 225 Rubi, op. cit., note 2. The Court acknowledged that “Philippine organic law…recognize[s] a dividing line between the territory not inhabited by Moros or other Non- Christian tribes, and the territory inhabited by them.” Id at 681.

251 Proc. No. 762 (1961), 57 O.G. 5378; Proc. No. 472 (1965), 61 O.G. 8154; Proc. No. 132 (1966), 63 O.G. 528; Proc. No. 549 (1969), 65 O.G. 5252; Proc. No. 834 (1971), 67 O.G. 3486; Proc. No. 995 (1972), 68 O.G. 2944; Proc. No. 1122 (1973), 69 O.G. 2928-1.

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cover a total land area of more than 27,700 hectares. […]

* * *

At least 8,000 hectares of land “reserved for the exclusive use” 255 of Tribal Filipinos, however, have been subsequently proclaimed as no longer part of the tribal reservations. 256 In addition, land within many tribal reservations has been occupied and even titled to Christian Filipinos. […]

VIII. CONCLUSION

The Filipino people have been developing indigenous property concepts for more than 22,000 years. […] The Supreme Court of the Philippine Republic has reaffirmed that many Tribal Filipinos within the “public” domain are not squatters. They own their ancestral land. Nevertheless, Tribal Filipinos are not able to record their native titles pursuant to the Property Registration Decree because of statutory misinterpretations and unconstitutionally overbroad provisions in the Revised Forestry Code concerning the classification of “public” land. […]

But if Tribal Filipinos acquire individual titles, ancestral lands will still be usurped. Different cultural orientations, coupled with the ongoing shift to a cash-based economy, make Tribal Filipinos easy prey to various interests. Communal titles would mitigate this problem. […]

* * *

In the final analysis there is no hope for the future of tribal citizens unless their historical and legal claims to land are meaningfully recognized and protected.

- o0o -

255 Com. Act No. 144 (1936), as amended, sec. 84. 256 Proc. No. 16 (1934) revoked Exec. Order No. 14 (1917); Proc. No. 650 (1934) revoked Exec. Order No. 13 (1915); Proc. No. 717 (1934) revoked Exec. Order No. 17 (1914); Proc No. 147 (1953) revoked Proc. No. 28 (1936); Proc. No. 22 (1954) revoked Exec. Order No. 7 (1920); Proc. No. 74 (1954) revoked Proc. No. 515 (1922); Proc. No. 196 (1955) revoked Proc. No. 74 (1954) revoked Proc. No. 515 (1922); Proc. No. 196 (1955) revoked Proc No. 714 (1934); Proc. No. 197 (1955) revoked Exec. Order No. 99 (1914). Proc. No. 95 (1927) amends Exec. Order No. 12 (1915); Proc. No. 762 (1941) amend Proc. No 26 (1924); Proc. No. 403 (1968) amends Proc. No. 139 (1927); Proc. No. 982 (1972) amends Exec. Order No. 122 (1914).