ae REGULATION OF OUR IDENTINES. DAL RECOGNITION “THE ENIGMA OF INDIGENOUS PEOPLES AND Li 0: NOT FOR CrrATION} (Drart For Pees 85m 1, 2008 AS OF By, Marvie M.V-F. Leonen! Spanish colonizers labeled us as indios. But more than indios, we were the infieles and the feroces [pagans) as opposed to those who were binyag (baptized). The feraces also came to refer (o groups that were not subdued by their army. But to many of our ancestors, they were Toaloi, Kankana-ey, Bontok, Isneg, Tagbanua, Palawanon, Higaonor, Aromanon Manobo, Bagobo, Subanen and many other labels. Of course, the binyag also were truly Jlocana, Tagalog, Eicolano and sleo other colorful labels. None of the feroces participated in the Treaty of Paris of 1898, the agreement to cede Spanish sovereignty over the archipelago to the Americans. By 1903, American colonial administrators created a Bureat of Non-Christian Tribes following the suggestions of the Philippine Commissioner later Secretary of the Deparment of Interior) Dean Worcester. Dr. ‘Owen Lynch chronicles this era and referred to this process of labeling as "minoritization’ fundamental in the policy of colonization and disenfranchisement of the early American Colonial period By 1987, more enlightened legislators pursued a policy that led to the creation of the Bureau of National Integration (BN]}. During martial law, the agency became the Philippine Agency for National Minoritics {PANAMIN) of Martial Law. This metamorphosed as the Office of Southern Cultural Communities (OSC) and the Olfce of Northern Cultural Communities (ONCC} produced as a result of the Provisional Freedom Constitution of 1986.7 What we now refer (0 as indigenous peoples were once then non-christian tribes, national minorities, tribal minorities, and indigenous cultural communities. Rubi v. Provincia! Board of Mindoro}, penned by no less than Justice George Malcolm, the first Dean of the College of Law of the UP, reveals the reasons for these labels. Claiming protection from the due process clause, Rubi, a Mangyan from Mindoro, filed an original petition for habeas corpus against the provincial government to prevent them from proceeding to forcibly place their comamunities in civil reservations. The Provincial Government relied on legislation that allowed them to do this for "non-christian tribes". Many of the Mangyan's however, at that time, were already Christianized. After reviewing their colonia) history in the Philippines and the efforts of colonial administrators, the Supreme Court declared: “In resume, therefore, the Legislature and the Judiciary, inferemtally, and different executive officials, specifically, join in the proposition that the term "non-Christian reiers, not to religious belief, but, in 2 way, to geographical area, and, more directly, to natives of the Philippine Islands of a low grade of civilization, usually living in tribal relationship apart from settled communities."* (emphasis provided) Justifying the denial of habeas corpus petition, the eminent jurist emphasized: Segregation really constitutes protection for the Manguianes... Theoretically, one may assert thal all men are created free Page 1 of 12_ and equal. Practical. we know tha the axiom isnot precisely accurate ‘The Manguianes, for‘nstance, ae nal fee, as civilized men are free, and they are not tne equa's ef their more ferlunate brothers, True, indeed, they are oftzens, with many Sut not al the rights which citzenship implies. And true, indeed, thay 22 Fipinos But just as surly the Manguianes are Giizens af alow degree of inteligence, and Filipinos who are a dreg upon the progress oftne Srete" (emphasis ours) This was followed by cases such as People v. Cayat’ where the Philippine Supreme Court placed judicial imprimatur on goverament action discriminating against a “cultural minority’ [Act No. 1639 penalized any member of a ‘non-Christian tribe" to possess or drink intoxicating louor other than native wine. This law was declared as constitutional and not discriminatory. Alter all, aceording to this case, there was e rational relationship between the use of the state's police power and the vulnerability of these tribes. |Parenthetically People v Cayat is a staple for all Constitutional Law Il classes } ‘The discrimination is clearer to those who are uninitiated in the processes of formal legal reasoning ‘The more general the textual bases of rights fram which “minority” or “marginalized cultures” the lesser the chances ae for an intespretation in their favor.? Judicial tendency might bbe to treat the usual state of affairs as the norm." Or, has been the experience of many lawyers working for the marginalized, that the resources of those who are prvleged simply dwarf their efforts. Justices work with their own experiences and isolate observable characteristics of complex communities in the hope of making the concepts and processes workable for other judges in future cases. In other words, there is a marked tendency to simplify, retluce or ‘easentialize communities into a number of characteristics. Unfortunately, having a ‘low grade ‘of civilization” was the best that our jurists at that time could discover. On October 29, 1997, the President of the Republic of the Philippines signed Republic ‘Act No, 8371 into law, "The Indigenous Peoples’ Rights Act prohibits discrimination against indigenous peoples!®. Ethnicity is now an unacceptable basis for classification unless it isin “due recognition of the characteristics and identity” of a member or a class of indigenous peoples, Classification of peoples into indigenous and non-indigenous is now allowed only to provide alfirmative action in their favor. Folitically, the specific use of the term “indigenous cultural communities” in the 1987 Constitution was in recognition of the intricacies and complexities of culture and its continuity in detining ancestral lands and domains.!! The cheice of “indigenous Peoples" in the IPRA as ‘well as the recognition and promotion of their rights was a departure from the negative stereotypes instilled by our colonizers, These prejudices against the “cultural minorities" and the “non-christian tribes” effectively pictured indigenous peoples then as baclward and therefare incapable of reasonable resource management. Section 3 (h) of the Indigenous Peoples Rights Act (IPRA) defines “indigenous cultural ‘communities/indigenous peoples’. ‘The term indigenous peoples refer to “a group of people” or “homogenous societies". The distinction recognizes situations where communities have intermarried or partially alowed entry to some extent non-native. Page 2 of 12a are “self-ascription and ascription by others”. Sel/-ascription is an important qualifier and one YF ‘The provision suggests that fundamental mode of determining whe indigenous peoples which can be self explanatory. But standing alone, it will not make judicial sense. Individuals: or communities wanting to make use of the special rights provided in the law would simply claim to be “indigenous” What matters therefore would be the parameters of the second requirement which is “aseription by others”. Here the law presents three possible criteria, ‘The first criterion acknowledges relationship to territory and the uniqueness of the group's culture. Indigenous peoples are those ©. .who have continuously lived as organized community on communally bounded and defined territory, and who have, under claims of ownership since time immemorial, occupied, possessed and utilized such terntories, sharing common bonds of language, customs, traditions and other distinctive cultural traits. .."P) ‘The second criterion acknowledges distinction through resistance to inroads of both colonization and non-indigenous religions and cultures. Thus — “or who have, through resistance to political social and cultural inroads of colonization, non-indigenous religions and cultures, became historically differentiated from the mnajority of Filipinos." ‘The third criterion traces physical origins of communities and acknowledges distinctions in cultural traits. Thus — peoples who are regarded as indigenous on account of their descent from the populations which inhabited the country, at the time of conquest or colonization, or at the time of inroads of non-indigenous religions and cultures, or the establishment of present state boundaries, who retain some or all of their own social, economic, cultural and political institutions, but who may have been displaced from their traditional domains or whe may have resettled outside their ancestral domains"'’ Any of these three criteria would suffice to make ascription by others that a “group of people” or a “homogenous society” would be considered as an indigenous community valid. Nothing in the law clarifies which criterion should be dominant. Definitely, they coute not be taken together. This constitutes the first level of ambiguity. Interpretation of open- ‘ended terms within each of the criteria constitutes the second level of ambiguity. ‘The existence of thee different sets of criteria reveals three different choices of substantive characteristics of indigenous peoples groups to privilege. ‘The first criterion requires time immemorial relationship to territory and therefore excludes indigenous groups that have migrated or are no longer fully dependent on natural resources. Itis therefore biased towards a conception of indigenous groups which remain rural. It even excludes acceptance of individuals or groups that have embraced. “cosmnopolitarianism”.'© Page 3 of 12‘The second criterion privileges “differentiation from the majority of Filipinos". Thus, it requires definition of norms for the “majority” against which indigenous peoples need to be measured. In a subtler way it therefore preserves the stereotyped dichotomy of “minority* and Smajority” ‘The third criterion presents the most ambiguity. It emphasizes retention of “some or all of their own social, economic, cultural and political institutions”. It however excludes relationship to territory and is not clear with respect to the relationship of the retained institutions to that of “majority of Filipinos.” Its perhaps this criterion that is being used in the current controversy relating to the Bangsa Moro Juridical Batity Administrative interpretation adds further complications, Following the tradition of earlier agencies and the possible interpretations of the provisions of the new Jaw, the National Commission on Indigenous Peoples (NCIP)" persists in categorizing indigenous groups by identilying ethnolinguistic groupings °* In December 2000, the Supreme Court rendered its ruling in Cruz v NCIP. Challenged was the constitutionality of the Indigenous Peoples’ Rights Act fundamentally because it Violated what allegecly was a fundamental precept with respect (0 our natural resources, that is jura regaiia or the rogalian doctrine. The court was evenly divided. Seven (7) of fourteen Voted to dismiss the Petition. The other seven (7} wanted portions of the Jaw declared as unconstitutional. By constitutional fiat and because of the presumption of constitutionality, the challenge failed. Of significance however, is the characterization of indigenous peoples in the ponencia of various justices. The dominant view was that: “Indigenous peoples share distinctive traits that set them apart from the Filspine mainstream. They are non-Christians, They live in less accessible, marginal, mostly upland areas. They have a system of self-government not dependent upon the laws of the central administration of the Republic of the Philippines. They follow ways Of life end customs that sre perceived as different from those of the Fest of the population. The kind of response the indigenous peoples chose to deal with colonial threat worked well to their advantage by aking it dfficule for Western concepts and religion to erode their ‘customs and traditions, The "infieles societies" which had become peripheral to colonial administration, represented, from a cultural perspective, a much older base of archipelagic culture. The political Systems were stil structured on the patriarchal and kinship oriented arrangement of power and authority. The economic activities were governed by the concepts of an ancient communalism and mutual help. The social siructure whici emphasized division of labor and distinction of fanctions, not status, was maintained. The cultural styles and forme of life portraying the varieties of social ‘courtesies and ecological adjustments were kept constantly vibrant. Land is the central element ofthe indigenous peoples’ existence. ‘There is no traditional concept of permanent, individual, land ‘ownership. Among the Igorote, ownership af land more accurately applies ta the tribal right to use the land or to territorial control. ‘The people are the secondary owners or stewards of the land and that if member of the trihe ceases to work, he loses his claim of ownership, and the land reverts to the beings of the spirit world who Page 4 of 12are ite true and primany owners. Under the concept of ‘trusteeship,” the right to possess the lav does nat only belong to the present {generation but the fusure ones as well." ul By law as well as administrative and judicial interpretation, Iam not indigenous. So ‘would many of you listening to this lecture.” You are just simply Filipinos. In doing s0, the law culturally participates in creating what Marion Iris Young calls as the “Other”. By relying on this legal representation of our identity we participate in an asymmetrical relationship of power, and privilege But by making these identities officia!—albeit legal—it does make permanent an. asymmetrical relationship. Iris Marion Young explains that “Where the social relation ofthe groups is one of privilege and oppression, this attribution of Otherness is asyrametyical, While the phivileged group is defined as active human subject, inferionsed Social groupe are objected, substantialised, reduced to a nature or essence, Whereas the privileged groups are neutral, exhibit fre, spontaneous and weighty subjectivity, the dominated groups are marked with an essence, imprisoned in a given set of possibilities Group differences as otherness thus usually generates dichotomies of mind and body, reason-emotion, civilized and primitive developed and underdeveloped." Apart from this conscions process of "othering”, the category of indigenous peoples based on ethnolinguistic alfhation misses on the other nuances of individual and group gent First, the categories ag well as the statistics are class and gender blind#! Many households of indigenous peoples are still very dependent on agriculture. The ICIP ethno-linguistc listing does not reveal the exact relationship of indigenous peoples’ households to agricultural production or use or development of natural resources. NCIP cannot validate the claim that in Northern Mindanao indigenous groups (Lumads) are becoming farmworkers more rather than owner cultivators# or the causes of this phenomenon, They do not differentiate between the farmer-gardeners among the Kankanaey {nd the tenant farmers of JRigao peoples in their rice terraces. They also have no capability to Validate the claim that while some indigenous peoples have diversified their marketable crops, many have retained traditional methods for staple crops jeg. rice and corn} Categorizing indigenous peoples based on ethnolinguisti afliation also fails to capture the differences among groups which have had a greater possibility for upward mobility and those that are still especially economically vulnerable. For instance, indigenous communities in the northern Cordillera have greater possibilities of succeeding through education as compared with groups in Palawan and Mindoro. Thus, itis more likely that there would be a Jawyer rom miost of the groups in the Cordillera than from the Batak of Palawan or any of the Magyar groups in Mindoro, Neither is the government sensitive to making distinctions among indigenous groups oF among communities within ethnolinguistic groups in so far as their dependence on natural Fesources are concerned (eg forest dependent vs non forest dependent, small scale miners, those dependent on tourismn et all Page 5 of 12i More importantly, statistics for indigenous peoples groups do not cently the number of women within the population and fail to distinguish roles that they have talren within communities in general ‘Second, some of the categories which are based on language fail to make distinctions within groups: ‘The Subanen is considered as one ethnolinguistic group. However the reality is that this classification is comprised of s number of communities speaking different dialects and ‘occupying territory in northwestern Mindanao which stretches from the Zamboanga peninsula to Misamis Oriental. They share in many customary political structuzes, such ag multilevel ‘imuay (village leader) but differ in details regarding their customary laws. The Kalinga peoples are grouped into if (villages) some of which are binadnan areas or areas that still use the bodong (peace pact} negotiated through their pangat (peace pact holder]. A minority of the villages however do not have this institution either because it has not been used ar had not, been present customanly, Significantly, categorizing based on ethnolinguistic aliation fails to capture the discussions and debate within communities regarding the use of customary law, their relationship to outsider’s culture, the role of local goverament institutions vis-a-vis their own customary political units et al. The cultures of almost all indigenous communities in the Philippines are open to interactions with outsiders. In fact, itis possible to identify many customary norms in some of them which pertain to rules governing treatment of “aliens” ‘Their various histories also show a great deal of trade and other forms of contact with other indigenous groups even those coming outside the Philippines. As a result, cultures have been dynamic. They have evolved in various ways as a result of interaction with outsiders and changes in the economic, political and social system outside their communities ‘Third, the unreasonable distinction between Muslim indigenous peoples and non- ‘Muslim indigenous peoples persists Many members of communities within specific ethnolinguistie affikations have embraced Islam as a religion, Identification dominantly based on the political agenda of ‘Muslim collectvities is largely due to a commen history of discrimination and oppression because they were @ minonty religion. Traditionally however, government agencies dealt vith ‘Muslim groups as Muslim groups with no reference to ethnicity or indigenity. The intersection of religion and indigenity therefore is not satisfactorily handled in the law nor in its Smplementation. Finally, even the concept of indigenous peoples in relation to their ancestral territories is not that stable Current literature challenges the notion that itis possible to generalize tenurial arrangements for specific cultures ® There is growing recognition that indigenous tenure “ systems change through time. Also, the notion that individual ownership of certain portions of ancestral territory only came through colonialism, in some communities, are now being challenged ‘The Banwaons of Balt, San Luis, Agusan del Sur understand that while their entire territory belongs to their community, they consider their internal boundaries as fluid and subject to negotiation with others even to the extent of inchding outsiders who have acquired legitimate claims through hard work. Within their territories, individual claims may prevail = Page 6 of 12In 1979, Shiegel wrote abo the rights to possession by this farays in Figel, a village in Mindanao, He observed that ‘digenous community were conditioned on their ability to make the land productive. Fasiure odo sa would allow the area devoted to agriculture tg be reoceupied by other individuals within their village. Within their swidden farms therefore, they king the lands productive rather than establishing individual [private) ownership over the land. However, ip 1981, the same author saw that the introduction of the plow created the condition to induce individual ownership of the land rather than simply exelusive rights to use property, Permanent fields require more investments and energy thus fostering a more permanent relationship to the land, were more concerned with Kaingin or swididen farming? is generally a method of cultivation that uses fie, cutting tools and sticks. After clearing a patch through fire and cutting within a forest, the farmer punches holes on the ground and buries seeds. The method relies heavily on rain and is fertilized by the ashes of the forest and the remains of the plants and harvest of the last cultivation, although productive, it does nat last long. The area is then left to fallow for periods from ten to tWenty Years within which the soil and the forest regenerate. A niew cycle of cultivation and fallow may follow on the original patch, ‘The ecological viability of swidden agriculture among indigenous peoples has been amply demonstrated. However, these shiidies were undertaken of communities where population densities were lower, forests sull abundant and the migrant intrusion sparse and controlled ® It is therefore difficult ta make sweeping conclusions as whether this type of cultivation causes forest denudation or assists in regeneration. Definitely, the shift in cultivation technology adds pressure in a community's rethinking of tenure rights, ‘The Calamian Ragbanwe of Coron fled the first formal ancestral domain claim over ‘ancestral waters” or their feeb ang surublien, The tenurial system of the Calamanian ‘Taghanwa are different from the Tagbanioa of mainland Palawan, Distinct from many land based indigenous groups, dependence for traditional livelihood over marie resources also ‘exists among the Badjaos of Basilan and Sulu, the Molbog of Balabac, Palawan, the Agta of Northeastern Luzon and the A of Boracay, It is not possible, on a national scale, to generalize the content of tenurial arrangement= corresponding to unique communities of specific ethnolinguistic groups, Itis only within specific communities that it is possible to understand their existing tenurial systems and also the processes through which these systems change v Elaborating rights in the legal arena is referred to by Duncan Kennedy as "legalism". He notes that legalism not anly embeds politics but also translate wide ranging political questions Into narrowly framed legal questions To hit legal questions bear a "certain hostility to discursively open-ended, multigenre, and polyvocal conversations about how we should live ‘what we should value and what we should prohibit and what is possible in collective life.” ‘These “discursive contestations” are replaced wath “. adversarial and yes/no structures can quash exploration; expert and specialized languages can preclude democratic participation; a pretense that deontelogieal grands ean and must alway’ be found ‘masks the historical embeddedness of may political questions; and the covertness of norms and political power within legal spaces repeatedly divests political questions of their most crucial concerns, When the available range of legal remedies preempts exploration of | the deep constitutive cauises of an injury..when the question of Which rights pertain overrides attention to what occasions the Page 7 of 12Urgently elt need for the right... we sacrifice our chance to be deliberative, inventive polifical beings who create our collective life form. Legalism thst draws its parameters of justice from liberalism. imposes its own standards of fairness when we might need a public argument about what constitutes fairness, its formulas for equelity when we may nee to reconsider all the powers that must be negotiated in the malcing of an egalitarian order; its definitions of liberty at the price of an exploratory argument about the constituent flements of freedom But thie discourse of legalism may be too sweeping®. Legal norms do act as “legal placeholders". But they may also provide platforms for better formulation. Progressive norms—even essentialized identiies--won in legal texts can be seen as starting incremental changes. They May simply be tentative arrangements until mare effective recourse is found to address urgent or imminent threats. New interpretations may feformulate old legal labels and therefore neutralize the effectiveness of usual stereotypes against progressive projects, ‘We must therefore critically examine what Conditions, in law as well asin its processes and institutions, can bring this about, We cannot simply describe law's failures, Ie is clear now that procedural and substantive provisions of the Indigenous Peoples Rights Act do not meet the needs of the marginalized sectors of indigenous communities. Oniginally intended to recognize ownership of ancestral domains in 1988, politicians took advantage of its presence to provide for a virtual mnagna carta for Indigenous Peoples. It is too broad. Concrete mechanisms for its implementation were not adequately spelled out except for the process of gaining paper recognition of ancestral lands and domains.™ Thus, while some social, economic and cultural rights are mentioned broadly, no provisions for both budget and program are mentioned in the law. ‘The result is of course an NCIP which focuses more on the stnagale to get official recognition af ttle ancestral domains. In spite of the seriousness of health, economic and ‘educational issues for the everyday hie of indigenous communities, the NCIP has not yet focused evolving its capabilities in understanding these problems and evolving programe for specific communsties.®» The implicit theory of both the law as well as the indigenous peoples movement seems to be that as long as rights to ancestral domain are offically recognized by government, the rest (political and economic empowerment) wil follow or ean be catalyzed, Current developments put these assumptions into question, In the flowiand) agrarian sector, large multinational corporations have allowed farmer beneficiaries to hald citle o their agricultural lands. However these corporations have also entered into either long term leases or contract growing arrangements with them. in many of these instances, coercion is kept at a minimum since farmers or farmworkers do not have the capabilities to manage their landholdings to finance, grow and mariet craps in such a way as to match the amount that @ large corporation may oiler as rental payment or contract growing shares. (Of course, government does not provide the necessary technical, nancial, marketing assistance to the farmers for them to avercome these barriers). In some areas of indigenous. peoples, corporations now offer to fand the costs of delineation and the conversion oF Certificates of Ancestral Domain Claims (CADC) to Certificates of Ancestral Domain Titles (capt) Page 8 of 12mic sense 10 corporations. Rather than having to deal ents, which may'be less than having to purchase the e. they could later on simply rely on the impoverishment sng vulnerability to negotiate terms for their continued ‘These make a good deal ef with a bad public image, these inves land, are very reasonable, Furs of indigenous groups and their resu! operations. ‘Again, this is not to say that werk on community mapping, resource planning and official recognition of ancestral lands and domains are not important. They are, but this, always again has to be talien in the content of a more expansive view of emipowerment of indigenous peoples communities one that focuses not only on paper victories, not only on the legal or political nor only on whole ethnolinguistic groups as its base. Empowerment should be seen from the intervention's effect on everyday community hfe, the autonomy that results from more control of their local economies ancl whether there still is political vulnerability of a local community vis a vis commercial, governmental fand even NGO) interests ‘The structures created by the IPRA have also failed to resist politcal pressures and therefore are not up to the challenge of asserting nuanced governance and tenurial systems against wel entrenched dominant interests, Advocates for indigenous peoples are all t00 familiar with the Task Force on Ancestral Domains created by the Office of the President uring the administration of President Estrada that wealcened the entire NCIP. They too are familiar with the woeful budget allocated to it. Then recently the transfer of the entire agency rom the Office of the President, then to the Department of Agrarian Reform, then to the Department of Environment and Natural Resources and then finally back to the Olfice of the President all within the span af about three years, No wonder that on many of the technical issues such as the cartological requirements of surveys, the concept of “ree and prior informed consent" and even the process of appointing personnel to lead the various offices, the NCIP has been in constant retreat v Lavis, by their nature, essentislize, reduce or simplify identities*, Laws need to freeze a snapshot of reality in order to achieve predictability. They have to be simple enough to be administrabic. They have to be clear enough to encourage acceptance by those who operate vathin our legal forums: chambers of legislation as well as our administrative offices and courtrooms. Even progressive human rights advocates on the side of indigenous peoples rights who do legal advocacy must contend with these realities. ‘Those that provided the language in the {ndigenous Peoples Rights Act were informed by this dilemma. On the one hand, providing text that would encampass mote possibilities for what will constitute ancestral domains or territories would have been too threatening for legislators and their propertied constituents. It would also have been threatening for settled beliefs of some human rights advocates, At the time of its formulation information and understanding might not have been sophisticated enough to pravide perfect guidance to the formulation of the provision, On the other hand, a law sueh as this needed to be passed, ‘The political climate was ripe lor its authorization Today, the labels "indigenous peoples, "ancestral domains”, informed consent", “customary law” are familiar terms introduced by the 1987 Constitution as well as Republic Act 8371. Yet the balance of concepts, the ideas of the institutions it would require, and the procedures that were delegated have not met up lo present expectations, Legal definitions should not trump further political discourse, The failure of the Indigenous Peoples Rights Act, the unintended consequences that it generated ehould not detract from the agenda to correct a historical injustice done to many of those who still, Page 9 of 12jaws that pretend to be universal and therefore Consider themselves as Fiipines. After al forgiving requirements of the multidimensional, Untouchable. are easily unmasises by the multicultural, multigenre, polrocal present schavior in rules and law embed a representation of other hand is informed by a standpoint and a view of a 4 can ever represent the variabiliies of who we are in the "es in an era of cosmopolitarianism and globalization is the The categories and s reality. This representation on solution to present problems. context of our polities and enigma of legal repres With this we learn that lanyers are not simply implementors af what the law is, Nor are they simply oracles of what it should say based on the evolution of judicial doctrine. Bifective legal advocates imnow the basic principles suggested by ordinary legel text. They know the variations of legal interpretation suggested by jurisprudence. But they should transcend them. so that idle legal discussions take their place within the context of genuine politiesl discourse. ‘Law is really a transient definition of society's interests articulated through imperfect and dominated human structures. There is nothing sacred in ite form or in ite contents, The challenge 10 the lawyer is to lenow when to use it, nol go much to maintain an wnyust status (quo, but to gain leverage for more just and fundamental changes. Endnotes "AB. LLB, LIM. Dean and Professor of Law, Calloge of Law, Universi ofthe Phiipines. The reectons are ‘based onthe experiences ofthe aun working with indigenous peogiesn various pate of he Philippines * Labels fr indigenous peoples trancformed accordingly in the following order; “non-christian tribes” “national cultural minorities" “indigenous cultural communtias” ang inéigenous peoples’. The fater two labels are what are currently legally used #39 Phi. 660, G.R, No. 14078 (1918), uniest othoFwise specied case references are te the Philippine ‘Supreme Cour repor system * Rubi v. Provincial Board, 39 Phil 880. * 5 Phil 12 (1939). # See for instance the interview statement of noted Philippine Historian Or. Wiliam Henry Scott, Sagada, 29 May 1986 where he says: "I have aiways rejected tne term ‘cutural minaniies’ because # seems to ‘vid the Filipino people into two groups~the majorty ana the minoriy..1 consider ft harmful fortwo aifferentreasons...In the first place, human nature being what itis, it invtes exploitation af the one group by the other and is therefore inhurnane, un-Christian, and bods ior the development of a heathy republic the erchipelago. And in te Second place. i isgulses the real division of the Filpino people Ino two groups~the nich and te poor, the everfed and ine undemourishad, thoee who make decisions fans those who carry them out. 7 The same point was made of gender projects by Brown, Wendy, "Suffering the Paradox of Righs,"in Brown and Haley, eds,, LEFT LEGALISM, LEFT CRITIQUE 422 (2002) ciing Catherine Mackinnon, FEMINISM UNMODIFIED 73 (1987). On race Brown suggests Chery! Harr, "Whteness as Proper and Neil Gotenda, “A clique of ‘Our Constitution s Cole" Blin, in Kimberle Crenshaw, Neil Gotanda, et al, CRITICAL RACE THEORY: THE KEY WRITINGS THAT FORMED THE MOVEMENT (1995). “ Minow, Martha, “Justice Engendered" 101 Harv. L. Rev. 10, 32 (1987). Minow claims that there are five judicia! tendencies that contribute to this result: ist, that diferences are treated as intrinsic rather than constructed: second, thatthe unstateg point of reference—.e the usval—is treated as the noc ‘hic, that the judge's perspective, though colorad by eullural stereotypes, is treated as objectives, fourth, thatthe perspectives of those being judged are treated as relevant, and ith that there is an assumotion ‘nat the Current socal and economic stuation ie neutral and natural Page 10 of 127) provides: “Equal Protection and Non-diseriminaton of IOCS/IPs ~ {ause of the Constiution ofthe Republic ofthe Philippines, the versal Declaration of Human Righs including the Convention on ‘Woman and international Human Rights Law, the Slate shal, tuth due recognition of rer stoct enaracteristes and identity, accord tothe members ofthe ICCsiPs the rights, protections and prvieges enjayed by the est ofthe itzenry. It shal extend to them the same employment nights, opporanses, Basic soces, educational and ether rights and privileges avaiable (0 every member of the society Accordingly, the State shall Ikewise ensure thatthe employment of any farm of force or coercion agsinstICCsIIPS shal be dealt with by law” See for instance exchange between Regalado, Davide and Bennagen, 4 Records ofthe Constitutional ‘Commission, 35-34 (August 28, 1986) durng the Second Reading of PR. No. 833, The definition of Inaigenous Peoples is furner refined in section 3 (t) ofthe challenged lw. "The provision states:*..a graup of people or homogenous societies identilec by se-ascription and ascigion by others, who have continuously lived as organized community on communally bounded and defined tertitory, and who have, under clams of oxneship since ime immemorial, occupied, possessed land uil2ed such territories, sharing common bonds of language, customs, tredtions and other distinctive Cultural rate, or who have, through resistance to peitical social and cultural inroads of colonization, non. incigenous religions and cultures, decame historical dferersiated from the major of Filipinos, ICCemIPs shall ikewise include peoples who are regarded as indigenous on account oftheir descent rom the populations whicn inhabited the country, at the lime of conguest or colonization, or at the time of ‘nvoads of non-indigenous reigions end cultures, ofthe estabishment of present sate boundaries, who rela some ofall of ther own social, economic, cultural and polical institutions, but who may have been ‘dapiaced (rom their racitional domains or who may have resellag outsida the ancestral domains” * Comes from Carino Insular Government, 41 Phil 935, 212 U.S. 449 (1908) where the US Supreme Court recognizes ownership ofthe baloi Mateo Carina stating thal” .. When as far back as testimony ‘goes, the land has been held by individuals under a claim of private ownership, twill be presumed to have been held in the same wey from before the Sparish conquest, and never to have been public land." ™ Comes from ILO Convention No, 107 and 180. "Based on the proposed definition of Jose Martinez Cobo, Former Rapporteut UN Subcommission on the Prevention of Discrimination agains Minories as adopted in the Draft UN Declaration for Incigenous Peoples. ' See for instance Walaron, Jeremy, ‘Minofty Cutures and the Cosmopolitarian Aternative,* in Wil kymicka, THE RIGHTS OF MINORITY CULTURES (1997) 93. * The principal executing agency attached to the Office ofthe President created by the Indigenous Peoples Rights Act (Rep. Act No. 6971) "8170 ethnalingustic groups therefore belong tots ofeal category of indigenous eoples. NCIP believes that inaigenous peoples constitute seventeen parcent (17%) ofthe total population occupying about five milion hectares ofa total of thiny milion heclares of land area. NCIP however admits that they have no way at present to validate the population figures. Nor ist believable thal thei estate of total land area occupied has been empricaly vertied. Depending on how one defines who incigenous peoples are as well as what it means for tnem to possess or occupy land, the figures could be larger. Surv NCIP per Puno), December, 2000, The cout was duided 7 to = Young, lis Manon, “Tagether in Difference: Transforming the Logic of Greup Political Conti’, ymlcks, Wil, THE RIGHTS OF MINORITY CULTURES (Oxtors: 1899), 158, * There are no available statistics that could reveal these more useful categories. # Discussion with Datu Tony Lumadnong (Higaonon}, Cagayan de Oro, March 2003, Royo, atoinetie and Bennagen, Ponclano, WAPPING THE EARTH, MAPPING LIFE (LRCKSK: 2000) Page 11 of 12 * Section 84. Republic Act No. E377 * Section 21, Rep. Act No, 637% ( CConsisters with the equal protection Gharer ofthe United Nations, the U the Elimination of DiscriminLand Tenute among Nom-ispanted Fipnes™n Peralta, Jesus T. ed "URE AND SOCIETY, FESTSCHRIFT IN HONOR OF WILLIAM HENRY SCOTT (Ateneo de Manila Press 2207) 107-132. Ziska chollngesthe notions presented in tape “progressive” history tenlboors tke Constantine Renate, THE PHILIPPINES: A PAST REVISITED (TALA Publishing, 1978) and Gento, Rene E, CAPITALISM IN 2=/LIPPINE AGRICULTURE (Foundation for Natonalst Studies: 1080) Gatmaytan, Augusto 8. Mazraker Mythmaker”n Roy, Antoinette and Benragen, Ponciano, MAPPING THE EARTH, MAPPING LIFE (LACKSK 2000) 64 ® senigel Stan TIRURAY SUBSISTENCE: FROM SHIFTING CULTIVATION TO PLOW AGRICULTURE {Ateneo de Mana Press. 1273) 29 oted ao in Zita, Fernando N, “Land Tenure among Non-Hipanized Flips’ “Prvate”n tus gustan cualy means indwiual Shiogel, Stuart, “Tiruray Gardens: Fram Use Right lo Private Ownership. @ Phi Quartedy of Culture and Sovily, No. 7, 5-8 (1981), * alternatively referred to also as ‘slash and burn” or shiling cultivation, * ee for instance Corin, Hetold C, HANUNOO AGRICULTURE: A REPORT ON AN INTEGRAL SYSTEM OF SHIFTING CULTIVATION IN THE PHILIPPINES (FAD! 1957) °° gee Getmayten, Augusta B, “Peoples: A View o Indigenous Peoples ofthe Philippines, unpublished Policy oper of URCKSK, 17 (18). "Grown, Weray and Hale. Janel, “nvoduction.’ in eds, LEFT LEGALISWILEFT CRITIQUE 19-20 (2002), ® grown ana aly 22-24 ® SB 09 or he Estrada bill oignaly ated by LRCKSK. See Leonen, Marve. “The IPRA. Wilt Bing US 9 mew level of Pita Discourse,” in Philippine Natural Resources Law Journal (2000). terview wit ty Fuben Lngatin, Chair, NCIP, March 2003, DOLE and OELMONTE are very good cases studies. The author challenged the former multinational ss a sues {gr both fsmors and inigonaus groups este ling Corporation for instance funded the CADC delineation of some ofthe Bi kudaret, 38 especially if these are “marginal identities’. See for instance Young, Iis Marion, “Together in Diflerence Transforming the Logie of Group Political Conflict in Kyznlicka, Wi, THE RIGHTS OF MONORITY CULTURES (Oxford. 1900), 158 “Sacial groupe who ident on another as dillerent typically lave conceived that difference as Otherness. Where the social relation of the groups is one of privilege and oppression, this attribution of Otherness is neymmetrical While Oe pavleged group is defined as Gcive human subject, inferierised social groups are objectified, ubstantialsed, reduced to a nature or seence, Whereas the privileged groups are neutral, exhibit fee, spontaneous and weighty subjectity, the dominated groupe are marked with sn essence, nprsoned in a gen set of possbiltes... Group titferences ae otherness thus veualy genevstes dichotomies of mind and bedy, reason-emotion, cvized fand primitive, developed and underdeveloped.” * seo tor instance Zale, Feranoo REFLECTIONS ON PHILIPPINE CL sn areas in Suton