LTD Cases 1-9

U.S.
Supreme Court
Johnson & Graham's Lessee v. McIntosh, 21 U.S. 8 Wheat. 543 543 (1823)
Johnson & Graham's Lessee v. McIntosh
21 U.S. (8 Wheat.) 543
ERROR TO THE DISTRICT
COURT OF ILLINOIS
Syllabus
A title to lands under grants to private individuals made by Indian tribes or nations northwest of the River Ohio in
1773 and 1775 cannot be recognized in the courts of the United States.
Discovery the original foundation of titles to land on the American continent as between the different European
nations by whom conquests and settlements were made here.
Recognition of the same principle in the wars, negotiations, and treaties between the different European powers.
Adoption of the same principle by the United States.
The exclusive right of the British government to the lands occupied by the Indians has passed to that of the United
States.
Foundation and limitation of the right of conquest.
Application of the principle of the right of conquest to the case of the Indian savages. Nature of the Indian title, as
subordinate to the absolute ultimate title of the government.
Effect of the proclamation of 1763.
Titles in New England under Indian grants.
This was an action of ejectment for lands in the State and District of Illinois, claimed by the plaintiffs under a
purchase and conveyance from the Piankeshaw Indians and by the defendant under a grant from the United States. It
came up on a case stated upon which there was a judgment below for the defendant. The case stated set out the
following facts:
1st. That on 23 May, 1609, James I, King of England, by his letters patent of that date, under the great seal of England,
did erect, form, and establish Robert, Earl of Salisbury, and others, his associates, in the letters patent named and their
successors into a body corporate and politic by the name and style of "The Treasurer and Company of Adventurers and
Planters of the City of London for the first Colony in Virginia," with perpetual succession and power to make, have,
and use a common seal, and did give, grant, and confirm unto this company, and their successors,
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Page 21 U. S. 544
under certain reservations and limitations in the letters patent expressed,
"All the lands, countries, and territories situate, lying, and being in that part of North America called Virginia, from the
point of land called Cape or Point Comfort all along the seacoast to the northward two hundred miles, and from the
said Cape or Point Comfort all along the seacoast to the southward two hundred miles, and all that space and circuit of
land lying from the seacoast of the precinct aforesaid up into the land throughout from the sea, west and northwest,
and also all the islands lying within one hundred miles along the coast of both seas of the precinct aforesaid, with all
the soil, grounds, rights, privileges, and appurtenances to these territories belonging and in the letters patent
particularly enumerated,"
and did grant to this corporation and their successors various powers of government in the letters patent particularly
expressed.
2d. That the place called in these letters patent Cape or Point Comfort is the place now called and known by the name
of Old Point Comfort, on the Chesapeake Bay and Hampton Roads, and that immediately after the granting of the
letters patent, the corporation proceeded under and by virtue of them to take possession of parts of the territory which
they describe and to form settlements, plant a colony, and exercise the powers of government therein, which colony
was called and known by the name of the Colony of Virginia.
3d. That at the time of granting these letters patent and of the discovery of the continent of
Page 21 U. S. 545
North America by the Europeans, and during the whole intermediate time, the whole of the territory in the letters
patent described, except a small district on James River, where a settlement of Europeans had previously been made,
was held, occupied, and possessed in full sovereignty by various independent tribes or nations of Indians, who were
the sovereigns of their respective portions of the territory and the absolute owners and proprietors of the soil and who
neither acknowledged nor owed any allegiance or obedience to any European sovereign or state whatever, and that in
making settlements within this territory and in all the other parts of North America where settlements were made
under the authority of the English government or by its subjects, the right of soil was previously obtained by purchase
or conquest from the particular Indian tribe or nation by which the soil was claimed and held, or the consent of such
tribe or nation was secured.
4th. That in the year 1624, this corporation was dissolved by due course of law and all its powers, together with its
rights of soil and jurisdiction under the letters patent in question were revested in the Crown of England, whereupon
the colony became a royal government with the same territorial limits and extent which had been established by the
letters patent, and so continued until it became a free and independent state, except so far as its limits and extent were
altered and curtailed by the Treaty of February 10, 1763, between Great Britain and France and by the letters patent
granted by the King of England
Page 21 U. S. 546
for establishing the Colonies of Carolina, Maryland, and Pennsylvania.
5th. That sometime previous to the year 1756, the French government, laying a claim to the country west of the
Alleghany or Appalachian Mountains on the Ohio and Mississippi Rivers and their branches, took possession of
certain parts of it with the consent of the several tribes or nations of Indians possessing and owning them, and with the
like consent established several military posts and settlements therein, particularly at Kaskaskias, on the River
Kaskaskias, and at Vincennes, on the River Wabash, within the limits of the Colony of Virginia, as described and
established in and by the letters patent of May 23, 1609, and that the government of Great Britain, after complaining
of these establishments as encroachments and remonstrating against them, at length, in the year 1756, took up arms to
resist and repel them, which produced a war between those two nations wherein the Indian tribes inhabiting and
holding the countries northwest of the Ohio and on the Mississippi above the mouth of the Ohio were the allies of
France, and the Indians known by the name of the Six Nations or the Iroquois and their tributaries and allies were the
allies of Great Britain, and that on 10 February, 1763, this war was terminated by a definitive treaty of peace between
Great Britain and France and their allies by which it was stipulated and agreed that the River Mississippi, from its
source to the Iberville, should forever after form the boundary between the dominions of
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Page 21 U. S. 547
Great Britain and those of France in that part of North America and between their respective allies there.
6th. That the government of Virginia, at and before the commencement of this war and at all times after it became a
royal government, claimed and exercised jurisdiction, with the knowledge and assent of the government of Great
Britain, in and over the country northwest of the River Ohio and east of the Mississippi as being included within the
bounds and limits described and established for that colony, by the letters patent of May 23, 1609, and that in the year
1749, a grant of six hundred thousand acres of land within the country northwest of the Ohio and as part of Virginia
was made by the government of Great Britain to some of its subjects by the name and style of the Ohio Company.
7th. That at and before the commencement of the war in 1756 and during its whole continuance and at the time of the
Treaty of February 10, 1763, the Indian tribes or nations inhabiting the country north and northwest of the Ohio and
east of the Mississippi as far east as the river falling into the Ohio called the Great Miami were called and known by
the name of the Western Confederacy of Indians, and were the allies of France in the war, but not her subjects, never
having been in any manner conquered by her, and held the country in absolute sovereignty as independent nations,
both as to the right of jurisdiction and sovereignty and the right of soil, except a few military posts and a small
territory around each,
Page 21 U. S. 548
which they had ceded to France, and she held under them, and among which were the aforesaid posts of Kaskaskias
and Vincennes, and that these Indians, after the treaty, became the allies of Great Britain, living under her protection as
they had before lived under that of France, but were free and independent, owing no allegiance to any foreign power
whatever and holding their lands in absolute property, the territories of the respective tribes being separated from each
other and distinguished by certain natural marks and boundaries to the Indians well known, and each tribe claiming
and exercising separate and absolute ownership in and over its own territory, both as to the right of sovereignty and
jurisdiction and the right of soil.
8th. That among the tribes of Indians thus holding and inhabiting the territory north and northwest of the Ohio, east of
the Mississippi, and west of the Great Miami, within the limits of Virginia, as described in the letters patent of May
23, 1609, were certain independent tribes or nations called the Illinois or Kaskaskias and the Piankeshaw or Wabash
Indians, the first of which consisted of three several tribes united into one and called the Kaskasias, the Pewarias, and
the Cahoquias; that the Illinois owned, held, and inhabited, as their absolute and separate property, a large tract of
country within the last mentioned limits and situated on the Mississippi, Illinois, and Kaskaskias Rivers and on the
Ohio below the mouth of the Wabash, and the Piankeshaws another large tract of country within the same
Page 21 U. S. 549
limits, and as their absolute and separate property, on the Wabash and Ohio Rivers, and that these Indians remained in
the sole and absolute ownership and possession of the country in question until the sales made by them in the manner
herein after set forth.
9th. That on the termination of the war between Great Britain and France, the Illinois Indians, by the name of the
Kaskaskias tribes of Indians, as fully representing all the Illinois tribes then remaining, made a treaty of peace with
Great Britain and a treaty of peace, limits, and amity, under her mediation, with the Six Nations, or Iroquois, and their
allies, then known and distinguished by the name of the Northern Confederacy of Indians, the Illinois being a part of
the confederacy then known and distinguished by the name of the Southern Confederacy, and sometimes by that of the
Western Confederacy.
10th. That on 7 October, 1763, the King of Great Britain made and published a proclamation for the better regulation
of the countries ceded to Great Britain by that treaty, which proclamation is referred to and made part of the case.
11th. That from time immemorial and always up to the present time, all the Indian tribes or nations of North America,
and especially the Illinois and Piankeshaws and other tribes holding, possessing, and inhabiting the said countries
north and northeast of the Ohio east of the Mississippi and west of the Great Miami held their respective lands and
territories each in common, the individuals
Page 21 U. S. 550
of each tribe or nation holding the lands and territories of such tribe in common with each other, and there being
among them no separate property in the soil, and that their sole method of selling, granting, and conveying their lands,
whether to governments or individuals, always has been from time immemorial and now is for certain chiefs of the
tribe selling to represent the whole tribe in every part of the transaction, to make the contract, and execute the deed, on
behalf of the whole tribe, to receive for it the consideration, whether in money or commodities, or both, and finally to
divide such consideration among the individuals of the tribe, and that the authority of the chiefs so acting for the
whole tribe is attested by the presence and assent of the individuals composing the tribe, or some of them, and by the
receipt by the individuals composing the tribe of their respective shares of the price, and in no other manner.
12th. That on 5 July, 1773, certain chiefs of the Illinois Indians, then jointly representing, acting for, and being duly
authorized by that tribe in the manner explained above, did by their deed poll, duly executed and delivered and
bearing date on that day, at the post of Kaskaskias, then being a British military post, and at a public council there held
by them for and on behalf of the said Illinois nation of Indians with William Murray, of the Illinois country, merchant,
acting for himself and for Moses Franks and Jacob Franks, of London, in Great Britain, David Franks, John Inglis,
Bernard Gratz, Michael
Page 21 U. S. 551
Gratz, Alexander Ross, David Sproat, and James Milligan, all of Philadelphia, in the p\Province of Pennsylvania;
Moses Franks, Andrew Hamilton, William Hamilton, and Edmund Milne of the same place; Joseph Simons otherwise
called Joseph Simon and Levi Andrew Levi of the Town of Lancaster in Pennsylvania; Thomas Minshall of York
County in the same province; Robert Callender and William Thompson, of Cumberland County in the same province;
John Campbell of Pittsburgh in the same province; and George Castles and James Ramsay of the Illinois country, and
for a good and valuable consideration in the said deed stated grant, bargain, sell, alien, lease, enfeoff, and confirm to
the said William Murray, Moses Franks, Jacob Franks, David Franks, John Inglis, Bernard Gratz, Michael Gratz,
Alexander Ross, David Sproat, James Milligan, Andrew Hamilton, William Hamilton, Edmund Milne Joseph Simons,
otherwise called Joseph Simon Levi Andrew Levi, Thomas Minshall, Robert Callender, William Thompson, John
Campbell, George Castles, and James Ramsay, their heirs and assigns forever, in severalty, or to George the Third,
then King of Great Britain and Ireland, his heirs and successors, for the use, benefit, and behoof of the grantees, their
heirs and assigns, in severalty, by whichever of those tenures they might most legally hold, all those two several tracts
or parcels of land situated, lying, and being within the limits of Virginia on the east of the Mississippi, northwest of
the Ohio, and west of the Great Miami, and thus butted
Page 21 U. S. 552
and bounded:
Beginning for one of the said tracts on the east side of the Mississippi at the mouth of the Heron Creek, called by the
French the River of Mary, being about a league below the mouth of the Kaskaskias River, and running thence a
northward of east course in a direct line back to the Hilly Plains, about eight leagues more or less; thence the same
course in a direct line to the Crab Tree Plains, about seventeen leagues more or less; thence the same course in a direct
line to a remarkable place known by the name of the Big Buffalo Hoofs, about seventeen leagues more or less; thence
the same course, in a direct line to the Salt Lick Creek, about seven leagues more or less; then crossing the Salt Lick
Creek, about one league below the ancient Shawanese town in an easterly or a little to the north of east course in a
direct line to the River Ohio, about four leagues more or less; then down the Ohio by its several courses until it
empties into the Mississippi, about thirty-five leagues more or less; and then up the Mississippi, by its several courses,
to the place of beginning, about thirty-three leagues more or less; and beginning for the other tract on the Mississippi
at a point directly opposite to the mouth of the Missouri and running up the Mississippi by its several courses to the
mouth of the Illinois, about six leagues more or less; and thence up the Illinois, by its several courses, to Chicagou or
Garlic Creek, about ninety leagues, more or less; thence nearly a northerly course, in a direct line, to a certain
remarkable place, being the ground on which a
Page 21 U. S. 553
battle was fought about forty or fifty years before that time between the Pewaria and Renard Indians, about fifty
leagues more or less; thence by the same course in a direct line to two remarkable hills close together in the middle of
a large prairie or plain, about fourteen leagues more or less; thence a north of east course, in a direct line, to a
remarkable spring known by the Indians by the name of "Foggy Spring," about fourteen leagues more or less; thence
the same course in a direct line to a great mountain, to the northwest of the White Buffalo Plain, about fifteen leagues
more or less; and thence nearly a southwest course to the place of beginning, about forty leagues more or less:
To have and to hold the said two tracts of land, with all and singular their appurtenances, to the grantees, their heirs
and assigns, forever in severalty or to the King, his heirs and successors, to and for the use, benefit, or behoof of the
grantees, their heirs and assigns, forever in severalty, as will more fully appear by the said deed poll, duly executed
under the hands and seals of the grantors and duly recorded at Kaskaskias on 2 September, 1773, in the office of
Vicerault Lemerance, a notary public, duly appointed and authorized. This deed, with the several certificates annexed
to or endorsed on it, was set out at length in the case.
13th. That the consideration in this deed expressed, was of the value of $24,000 current money of the United States
and upwards, and was paid and delivered, at the time of the execution of the deed, by William Murray, one
Page 21 U. S. 554
of the grantees, in behalf of himself and the other grantees, to the Illinois Indians, who freely accepted it and divided it
among themselves; that the conferences in which the sale of these lands was agreed on and made and in which it was
agreed that the deed should be executed were publicly held for the space of a month at the post of Kaskaskias, and
were attended by many individuals of all the tribes of Illinois Indians, besides the chiefs, named as grantors in the
deed; that the whole transaction was open, public, and fair, and the deed fully explained to the grantors and other
Indians by the sworn interpreters of the government and fully understood by the grantors and other Indians before it
was executed; that the several witnesses to the deed and the grantees named in it were such persons and of such
quality and stations, respectively, as they are described to be in the deed, the attestation, and the other endorsements
on it; that the grantees did duly authorize William Murray to act for and represent them in the purchase of the lands
and the acceptance of the deed, and that the two tracts or parcels of land which it describes and purports to grant were
then part of the lands held, possessed, and inhabited by the Illinois Indians from time immemorial in the manner
already stated.
14th. That all the persons named as grantees in this deed were, at the time of its execution and long before, subjects of
the Crown of Great Britain and residents of the several places named in the deed as their places of residence, and
that
Page 21 U. S. 555
they entered into the land under and by virtue of the deed and became seized as the law requires.
15th. That on 18 October, 1775, Tabac and certain other Indians, all being chiefs of the Piankeshaws and jointly
representing, acting for, and duly authorized by that nation in the manner stated above, did, by their deed poll, duly
executed and bearing date on the day last mentioned at the post of Vincennes, otherwise called post St. Vincent, then
being a British military post, and at a public council there held by them for and on behalf of the Piankeshaw Indians,
with Louis Viviat, of the Illinois country, acting for himself and for the Right Honorable John, Earl of Dunmore, then
Governor of Virginia, the Honorable John Murray, son of the said Earl, Moses Franks and Jacob Franks, of London, in
Great Britain, Thomas Johnson, Jr., and John Davidson, both of Annapolis, in Maryland, William Russel, Matthew
Ridley, Robert Christie, Sr., and Robert Christie, Jr., of Baltimore Town, in the same province, Peter Compbell, of
Piscataway in the same province, William Geddes, of Newtown Chester in the same province, collector of his
Majesty's customs, David Franks and Moses Franks, both of Philadelphia in Pennsylvania, William Murray and Daniel
Murray, of the Illinois country, Nicholas St. Martin and Joseph Page, of the same place, Francis Perthuis, late of
Quebec, in Canada, but then of post St. Vincent, and for good and valuable consideration, in the deed poll mentioned
and enumerated, grant, bargain, sell, alien, enfeoff, release, ratify, and
Page 21 U. S. 556
confirm to the said Louis Viviat and the other persons last mentioned, their heirs and assigns, equally to be divided, or
to George III, then King of Great Britain and Ireland, his heirs and successors, for the use, benefit, and behoof of all
the above mentioned grantees, their heirs and assigns, in severalty, by whichever of those tenures they might most
legally hold, all those two several tracts of land in the deed particularly described situate, lying,
brk:
and being northwest of the Ohio, east of the Mississippi, and west of the Great Miami, within the limits of Virginia
and on both sides of the Ouabache, otherwise called the Wabash, which two tracts of land are contained respectively
within the following metes and bounds, courses and distances, that is to say, beginning for one of the said tracts at the
mouth of a rivulet called Riviere du Chat, or Cat River, where it empties itself into the Ouabache or Wabash, by its
several courses, to a place called Point Coupee, about twelve leagues above post St. Vincent, being forty leagues, or
thereabouts, in length, on the said river Ouabache, from the place of beginning, with forty leagues in width or breadth
on the east side, and thirty leagues in breadth or width on the west side of that river, to be continued along from the
place of beginning to Point Coupee. And beginning for the other tract at the mouth of White River where it empties
into the Ouabache, about twelve leagues below post St. Vincent, and running thence down the Ouabache by its several
courses until it empties into the Ohio, being from White River to the Ohio, about fifty-three leagues in length, more or
less, with forty
Page 21 U. S. 557
leagues in width or breadth on the east side and thirty in width or breadth on the west side of the Ouabache, to be
continued along from the White River to the Ohio, with all the rights, liberties, privileges, hereditaments, and
appurtenances to the said tract belonging, to have and to hold to the grantees, their heirs and assigns, forever in
severalty or to the King, his heirs and successors, for the use, benefit, and behoof of the grantees, their heirs and
assigns, as will more fully appear by the deed itself, duly executed under the hands and seals of the grantors, and duly
recorded at Kaskaskias, on 5 December, 1775, in the office of Louis Bomer, a notary public, duly appointed and
authorized. This deed, with the several certificates annexed to or endorsed on it, was set out at length.
16th. That the consideration in this deed expressed was of the value of $31,000 current money of the United States and
upwards, and was paid and delivered at the time of the execution of the deed by the grantee, Lewis Viviat, in behalf of
himself and the other grantees, to the Piankeshaw Indians, who freely accepted it and divided it among themselves;
that the conferences in which the sale of these two tracts of land was agreed on and made, and in which it was agreed
that the deed should be executed were publicly held for the space of a month at the post of Vincennes or post St.
Vincent, and were attended by many individuals of the Piankeshaw nation of Indians besides the chiefs named as
grantors in the deed; that the whole
Page 21 U. S. 558
transaction was open, public, and fair, and the deed fully explained to the grantors and other Indians by skillful
interpreters, and fully understood by them before it was executed; that it was executed in the presence of the several
witnesses by whom it purports to have been attested, and was attested by them; that the grantees were all subjects of
the Crown of Great Britain, and were of such quality, station, and residence, respectively, as they are described in the
deed to be; that the grantees did duly authorize Lewis Viviat to act for and represent them in the purchase of these two
tracts of land and in the acceptance of the deed; that these tracts of land were then part of the lands held, possessed,
and inhabited by the Piankeshaw Indians from time immemorial, as is stated above; and that the several grantees
under this deed entered into the land which it purports to grant and became seized as the law requires.
17th. That on 6 May, 1776, the Colony of Virginia threw off its dependence on the Crown and government of Great
Britain and declared itself an independent state and government with the limits prescribed and established by the
letters patent of May 23, 1609, as curtailed and restricted by the letters patent establishing the Colonies of
Pennsylvania, Maryland, and Carolina and by the Treaty of February 10, 1763, between Great Britain and France,
which limits, so curtailed and restricted, the State of Virginia, by its Constitution and form of government, declared
should be and remain the limits of the state and should bound its western and northwestern extent.
Page 21 U. S. 559
18th. That on 5 October, 1778, the General Assembly of Virginia, having taken by arms the posts of Kaskaskias and
Vincennes, or St. Vincent, from the British forces, by whom they were then held, and driven those forces from the
country northwest of the Ohio, east of the Mississippi, and west of the Great Miami, did, by an act of assembly of that
date, entitled "An act for establishing the County of Illinois and for the more effectual protection and defense thereof,"
erect that country, with certain other portions of territory within the limits of the state and northwest of the Ohio into a
county, by the name of the County of Illinois.
19th. That on 29 December, 1783, the State of Virginia, by an act of assembly of that date, authorized their delegates
in the Congress of the United States, or such of them, to the number of three at least, as should be assembled in
Congress on behalf of the state and by proper deeds or instruments in writing under their hands and seals, to convey,
transfer, assign, and make over to the United States, in Congress assembled, for the benefit of the said states, all right,
title, and claim, as well of soil as jurisdiction, which Virginia had to the territory or tract of country within her limits,
as defined and prescribed by the letters patent of May 23, 1609, and lying to the northwest of the Ohio; subject to
certain limitations and conditions in the act prescribed and specified, and that on 1 March, 1784, Thomas Jefferson,
Samuel Hardy, Arthur Lee, and James Monroe, then being four of the delegates
Page 21 U. S. 560
of Virginia to the Congress of the United States, did, by their deed poll, under their hands and seals, in pursuance and
execution of the authority to them given by this act of assembly, convey, transfer, assign, and make over to the United
States, in Congress assembled, for the benefit of the said states, all right, title, and claim, as well of soil as jurisdiction
which that state had to the territory northwest of the Ohio, with the reservations, limitations, and conditions in the act
of assembly prescribed, which cession the United States accepted.
20th. That on 20 July, 1818, the United States, by their officers duly authorized for that purpose did sell, grant, and
convey to the defendant in this action, William McIntosh, all those several tracts or parcels of land, containing 11,560
acres, and butted, bounded, and described, as will fully appear in and by the patent for the said lands, duly executed,
which was set out at length.
21st. That the lands described and granted in and by this patent are situated within the State of Illinois and are
contained within the lines of the last or second of the two tracts described and purporting to be granted and conveyed
to Louis Viviat and others by the deed of October 18, 1775, and that William McIntosh, the defendant, entered upon
these lands under and by virtue of his patent and became possessed thereof before the institution of this suit.
22d. That Thomas Johnson, one of the grantees
Page 21 U. S. 561
in and under the deed of October 18, 1775, departed this life on or about 1 October, 1819, seized of all his undivided
part or share of and in the two several tracts of land described and purporting to be granted and conveyed to him and
others by that deed, having first duly made and published his last will and testament in writing, attested by three
credible witnesses, which he left in full force and by which he devised all his undivided share and part of those two
tracts of land to his son, Joshua Johnson and his heirs, and his grandson, Thomas J. Graham, and his heirs, the lessors
of the plaintiff in this action, as tenants in common.
23d. That Joshua Johnson and Thomas J. Graham, the devisees, entered into the two tracts of land last above
mentioned under and by virtue of the will, and became thereof seized as the law requires. That Thomas Johnson, the
grantee and devisor, during his whole life and at the time of his death, was an inhabitant and citizen of the State of
Maryland; that Joshua Johnson and Thomas J. Graham, the lessors of the plaintiff, now are and always have been
citizens of the same state; that the defendant, William McIntosh, now is and at and before the time of bringing this
action was a citizen of the State of Illinois, and that the matter in dispute in this action is of the value of $2,000 current
money of the United States and upwards.
24th. And that neither William Murray nor any other of the grantees under the deed of July 5, 1773, nor Louis Viviat
nor any other of the
Page 21 U. S. 562
grantees under the deed of October 8, 1775, nor any person for them or any of them ever obtained or had the actual
possession under and by virtue of those deeds or either of them of any part of the lands in them or either of them
described and purporting to be granted, but were prevented by the war of the American Revolution, which soon after
commenced, and by the disputes and troubles which preceded it, from obtaining such possession, and that since the
termination of the war and before it, they have repeatedly and at various times from the year 1781 till the year 1816
petitioned the Congress of the United States to acknowledge and confirm their title to those lands under the purchases
and deeds in question, but without success.
Judgment being given for the defendant on the case stated, the plaintiffs brought this writ of error.
Page 21 U. S. 571
MR. CHIEF JUSTICE MARSHALL delivered the opinion of the Court.
The plaintiffs in this cause claim the land in their declaration mentioned under two grants purporting to be made, the
first in 1773 and the last in 1775, by the chiefs of certain
Page 21 U. S. 572
Indian tribes constituting the Illinois and the Piankeshaw nations, and the question is whether this title can be
recognized in the courts of the United States?
The facts, as stated in the case agreed, show the authority of the chiefs who executed this conveyance so far as it could
be given by their own people, and likewise show that the particular tribes for whom these chiefs acted were in rightful
possession of the land they sold. The inquiry, therefore, is in a great measure confined to the power of Indians to give,
and of private individuals to receive, a title which can be sustained in the courts of this country.
As the right of society to prescribe those rules by which property may be acquired and preserved is not and cannot be
drawn into question, as the title to lands especially is and must be admitted to depend entirely on the law of the nation
in which they lie, it will be necessary in pursuing this inquiry to examine not singly those principles of abstract justice
which the Creator of all things has impressed on the mind of his creature man and which are admitted to regulate in a
great degree the rights of civilized nations, whose perfect independence is acknowledged, but those principles also
which our own government has adopted in the particular case and given us as the rule for our decision.
On the discovery of this immense continent, the great nations of Europe were eager to appropriate to themselves so
much of it as they could respectively acquire. Its vast extent offered an
Page 21 U. S. 573
ample field to the ambition and enterprise of all, and the character and religion of its inhabitants afforded an apology
for considering them as a people over whom the superior genius of Europe might claim an ascendency. The potentates
of the old world found no difficulty in convincing themselves that they made ample compensation to the inhabitants of
the new by bestowing on them civilization and Christianity in exchange for unlimited independence. But as they were
all in pursuit of nearly the same object, it was necessary, in order to avoid conflicting settlements and consequent war
with each other, to establish a principle which all should acknowledge as the law by which the right of acquisition,
which they all asserted should be regulated as between themselves. This principle was that discovery gave title to the
government by whose subjects or by whose authority it was made against all other European governments, which title
might be consummated by possession.
The exclusion of all other Europeans necessarily gave to the nation making the discovery the sole right of acquiring
the soil from the natives and establishing settlements upon it. It was a right with which no Europeans could interfere.
It was a right which all asserted for themselves, and to the assertion of which by others all assented.
Those relations which were to exist between the discoverer and the natives were to be regulated by themselves. The
rights thus acquired being exclusive, no other power could interpose between them.
Page 21 U. S. 574
In the establishment of these relations, the rights of the original inhabitants were in no instance entirely disregarded,
but were necessarily to a considerable extent impaired. They were admitted to be the rightful occupants of the soil,
with a legal as well as just claim to retain possession of it, and to use it according to their own discretion; but their
rights to complete sovereignty as independent nations were necessarily diminished, and their power to dispose of the
soil at their own will to whomsoever they pleased was denied by the original fundamental principle that discovery
gave exclusive title to those who made it.
While the different nations of Europe respected the right of the natives as occupants, they asserted the ultimate
dominion to be in themselves, and claimed and exercised, as a consequence of this ultimate dominion, a power to
grant the soil while yet in possession of the natives. These grants have been understood by all to convey a title to the
grantees, subject only to the Indian right of occupancy.
The history of America from its discovery to the present day proves, we think, the universal recognition of these
principles.
Spain did not rest her title solely on the grant of the Pope. Her discussions respecting boundary, with France, with
Great Britain, and with the United States all show that she placed in on the rights given by discovery. Portugal
sustained her claim to the Brazils by the same title.
France also founded her title to the vast territories she claimed in America on discovery. However
Page 21 U. S. 575
conciliatory her conduct to the natives may have been, she still asserted her right of dominion over a great extent of
country not actually settled by Frenchmen and her exclusive right to acquire and dispose of the soil which remained in
the occupation of Indians. Her monarch claimed all Canada and Acadie as colonies of France at a time when the
French population was very inconsiderable and the Indians occupied almost the whole country. He also claimed
Louisiana, comprehending the immense territories watered by the Mississippi and the rivers which empty into it, by
the title of discovery. The letters patent granted to the Sieur Demonts in 1603, constitute him Lieutenant General, and
the representative of the King in Acadie, which is described as stretching from the 40th to the 46th degree of north
latitude, with authority to extend the power of the French over that country and its inhabitants, to give laws to the
people, to treat with the natives and enforce the observance of treaties, and to parcel out and give title to lands
according to his own judgment.
The states of Holland also made acquisitions in America and sustained their right on the common principle adopted by
all Europe. They allege, as we are told by Smith in his History of New York, that Henry Hudson, who sailed, as they
say, under the orders of their East India Company, discovered the country from the Delaware to the Hudson, up which
he sailed to the 43d degree of north latitude, and this country they claimed under the title acquired by this voyage.
Page 21 U. S. 576
Their first object was commercial, as appears by a grant made to a company of merchants in 1614, but in 1621 the
States General made, as we are told by Mr. Smith, a grant of the country to the West India Company by the name of
New Netherlands.
The claim of the Dutch was always contested by the English -- not because they questioned the title given by
discovery, but because they insisted on being themselves the rightful claimants under that title. Their pretensions were
finally decided by the sword.
No one of the powers of Europe gave its full assent to this principle more unequivocally than England. The documents
upon this subject are ample and complete. So early as the year 1496, her monarch granted a commission to the Cabots
to discover countries then unknown to Christian people and to take possession of them in the name of the King of
England. Two years afterwards, Cabot proceeded on this voyage and discovered the continent of North America, along
which he sailed as far south as Virginia. To this discovery the English trace their title.
In this first effort made by the English government to acquire territory on this continent we perceive a complete
recognition of the principle which has been mentioned. The right of discovery given by this commission is confined to
countries "then unknown to all Christian people," and of these countries Cabot was empowered to take possession in
the name of the King of England. Thus asserting a right to take possession
Page 21 U. S. 577
notwithstanding the occupancy of the natives, who were heathens, and at the same time admitting the prior title of any
Christian people who may have made a previous discovery.
The same principle continued to be recognized. The charter granted to Sir Humphrey Gilbert in 1578 authorizes him to
discover and take possession of such remote, heathen, and barbarous lands as were not actually possessed by any
Christian prince or people. This charter was afterwards renewed to Sir Walter Raleigh in nearly the same terms.
By the charter of 1606, under which the first permanent English settlement on this continent was made, James I
granted to Sir Thomas Gates and others those territories in America lying on the seacoast between the 34th and 45th
degrees of north latitude and which either belonged to that monarch or were not then possessed by any other Christian
prince or people. The grantees were divided into two companies at their own request. The first or southern colony was
directed to settle between the 34th and 41st degrees of north latitude, and the second or northern colony between the
38th and 45th degrees.
In 1609, after some expensive and not very successful attempts at settlement had been made, a new and more enlarged
charter was given by the Crown to the first colony, in which the King granted to the "Treasurer and Company of
Adventurers of the City of London for the first colony in Virginia," in absolute property, the lands extending along the
seacoast four hundred miles, and
Page 21 U. S. 578
into the land throughout from sea to sea. This charter, which is a part of the special verdict in this cause, was annulled,
so far as respected the rights of the company, by the judgment of the Court of King's Bench on a writ of quo
warranto, but the whole effect allowed to this judgment was to revest in the Crown the powers of government and the
title to the lands within its limits.
At the solicitation of those who held under the grant to the second or northern colony, a new and more enlarged
charter was granted to the Duke of Lenox and others in 1620, who were denominated the Plymouth Company,
conveying to them in absolute property all the lands between the 40th and 48th degrees of north latitude.
Under this patent New England has been in a great measure settled. The company conveyed to Henry Rosewell and
others, in 1627, that territory which is now Massachusetts, and in 1628 a charter of incorporation comprehending the
powers of government was granted to the purchasers.
Great part of New England was granted by this company, which at length divided their remaining lands among
themselves, and in 1635 surrendered their charter to the Crown. A patent was granted to Gorges for Maine, which was
allotted to him in the division of property.
All the grants made by the Plymouth Company, so far as we can learn, have been respected. In pursuance of the same
principle, the King, in 1664, granted to the Duke of York the country of New England as far south as the Delaware
Page 21 U. S. 579
Bay. His Royal Highness transferred New Jersey to Lord Berkeley and Sir George Carteret.
In 1663, the Crown granted to Lord Clarendon and others the country lying between the 36th degree of north latitude
and the River St. Mathes, and in 1666 the proprietors obtained from the Crown a new charter granting to them that
province in the King's dominions in North America which lies from 36 degrees 30 minutes north latitude to the 29th
degree, and from the Atlantic ocean to the South sea.
Thus has our whole country been granted by the Crown while in the occupation of the Indians. These grants purport to
convey the soil as well as the right of dominion to the grantees. In those governments which were denominated royal,
where the right to the soil was not vested in individuals, but remained in the Crown or was vested in the colonial
government, the King claimed and exercised the right of granting lands and of dismembering the government at his
will. The grants made out of the two original colonies, after the resumption of their charters by the Crown, are
examples of this. The governments of New England, New York, New Jersey, Pennsylvania, Maryland, and a part of
Carolina were thus created. In all of them, the soil, at the time the grants were made, was occupied by the Indians. Yet
almost every title within those governments is dependent on these grants. In some instances, the soil was conveyed by
the Crown unaccompanied by the powers of government, as in the case of the northern neck of Virginia. It has
never
Page 21 U. S. 580
been objected to this or to any other similar grant that the title as well as possession was in the Indians when it was
made and that it passed nothing on that account.
These various patents cannot be considered as nullities, nor can they be limited to a mere grant of the powers of
government. A charter intended to convey political power only would never contain words expressly granting the land,
the soil, and the waters. Some of them purport to convey the soil alone, and in those cases in which the powers of
government as well as the soil are conveyed to individuals, the Crown has always acknowledged itself to be bound by
the grant. Though the power to dismember regal governments was asserted and exercised, the power to dismember
proprietary governments was not claimed, and in some instances, even after the powers of government were revested
in the Crown, the title of the proprietors to the soil was respected.
Charles II was extremely anxious to acquire the property of Maine, but the grantees sold it to Massachusetts, and he
did not venture to contest the right of that colony to the soil. The Carolinas were originally proprietary governments.
In 1721, a revolution was effected by the people, who shook off their obedience to the proprietors and declared their
dependence immediately on the Crown. The King, however, purchased the title of those who were disposed to sell.
One of them, Lord Carteret, surrendered his interest in the government but retained his title to the soil. That
Page 21 U. S. 581
title was respected till the revolution, when it was forfeited by the laws of war.
Further proofs of the extent to which this principle has been recognized will be found in the history of the wars,
negotiations, and treaties which the different nations claiming territory in America have carried on and held with each
other.
The contests between the cabinets of Versailles and Madrid respecting the territory on the northern coast of the Gulf of
Mexico were fierce and bloody, and continued until the establishment of a Bourbon on the throne of Spain produced
such amicable dispositions in the two Crowns as to suspend or terminate them.
Between France and Great Britain, whose discoveries as well as settlements were nearly contemporaneous, contests
for the country actually covered by the Indians began as soon as their settlements approached each other, and were
continued until finally settled in the year 1763 by the Treaty of Paris.
Each nation had granted and partially settled the country, denominated by the French Acadie, and by the English Nova
Scotia. By the 12th article of the Treaty of Utrecht, made in 1703, his most Christian Majesty ceded to the Queen of
Great Britain "all Nova Scotia or Acadie, with its ancient boundaries." A great part of the ceded territory was in the
possession of the Indians, and the extent of the cession could not be adjusted by the commissioners to whom it was to
be referred.
The Treaty of Aix la Chapelle, which was made
Page 21 U. S. 582
on the principle of the status ante bellum, did not remove this subject of controversy. Commissioners for its
adjustment were appointed whose very able and elaborate, though unsuccessful, arguments in favor of the title of their
respective sovereigns show how entirely each relied on the title given by discovery to lands remaining in the
possession of Indians.
After the termination of this fruitless discussion, the subject was transferred to Europe and taken up by the cabinets of
Versailles and London. This controversy embraced not only the boundaries of New England, Nova Scotia, and that
part of Canada which adjoined those colonies, but embraced our whole western country also. France contended not
only that the St. Lawrence was to be considered as the center of Canada, but that the Ohio was within that colony. She
founded this claim on discovery and on having used that river for the transportation of troops in a war with some
southern Indians.
This river was comprehended in the chartered limits of Virginia, but though the right of England to a reasonable extent
of country in virtue of her discovery of the seacoast and of the settlements she made on it, was not to be questioned,
her claim of all the lands to the Pacific Ocean because she had discovered the country washed by the Atlantic, might,
without derogating from the principle recognized by all, be deemed extravagant. It interfered, too, with the claims of
France founded on the same principle. She therefore sought to strengthen her original title to
Page 21 U. S. 583
the lands in controversy by insisting that it had been acknowledged by France in the 15th article of the Treaty of
Utrecht. The dispute respecting the construction of that article has no tendency to impair the principle, that discovery
gave a title to lands still remaining in the possession of the Indians. Whichever title prevailed, it was still a title to
lands occupied by the Indians, whose right of occupancy neither controverted and neither had then extinguished.
These conflicting claims produced a long and bloody war which was terminated by the conquest of the whole country
east of the Mississippi. In the treaty of 1763, France ceded and guaranteed to Great Britain all Nova Scotia, or Acadie,
and Canada, with their dependencies, and it was agreed that the boundaries between the territories of the two nations
in America should be irrevocably fixed by a line drawn from the source of the Mississippi, through the middle of that
river and the lakes Maurepas and Ponchartrain, to the sea. This treaty expressly cedes, and has always been understood
to cede, the whole country on the English side of the dividing line between the two nations, although a great and
valuable part of it was occupied by the Indians. Great Britain, on her part, surrendered to France all her pretensions to
the country west of the Mississippi. It has never been supposed that she surrendered nothing, although she was not in
actual possession of a foot of land. She surrendered all right to acquired the country, and any after attempt to purchase
it from the Indians would have been considered
Page 21 U. S. 584
and treated as an invasion of the territories of France.
By the 20th article of the same treaty, Spain ceded Florida, with its dependencies and all the country she claimed east
or southeast of the Mississippi, to Great Britain. Great part of this territory also was in possession of the Indians.
By a secret treaty which was executed about the same time, France ceded Louisiana to Spain, and Spain has since
retroceded the same country to France. At the time both of its cession and retrocession, it was occupied chiefly by the
Indians.
Thus all the nations of Europe who have acquired territory on this continent have asserted in themselves and have
recognized in others the exclusive right of the discoverer to appropriate the lands occupied by the Indians. Have the
American states rejected or adopted this principle?
By the treaty which concluded the war of our revolution, Great Britain relinquished all claim not only to the
government, but to the "propriety and territorial rights of the United States" whose boundaries were fixed in the
second article. By this treaty the powers of government and the right to soil which had previously been in Great
Britain passed definitively to these states. We had before taken possession of them by declaring independence, but
neither the declaration of independence nor the treaty confirming it could give us more than that which we before
possessed or to which Great Britain was before entitled. It
Page 21 U. S. 585
has never been doubted that either the United States or the several states had a clear title to all the lands within the
boundary lines described in the treaty, subject only to the Indian right of occupancy, and that the exclusive power to
extinguish that right was vested in that government which might constitutionally exercise it.
Virginia, particularly, within whose chartered limits the land in controversy lay, passed an act in the year 1779
declaring her
"exclusive right of preemption from the Indians of all the lands within the limits of her own chartered territory, and
that no person or persons whatsoever have or ever had a right to purchase any lands within the same from any Indian
nation except only persons duly authorized to make such purchase, formerly for the use and benefit of the colony and
lately for the Commonwealth."
The act then proceeds to annul all deeds made by Indians to individuals for the private use of the purchasers.
Without ascribing to this act the power of annulling vested rights or admitting it to countervail the testimony furnished
by the marginal note opposite to the title of the law forbidding purchases from the Indians in the revisals of the
Virginia statutes stating that law to be repealed, it may safely be considered as an unequivocal affirmance on the part
of Virginia of the broad principle which had always been maintained that the exclusive right to purchase from the
Indians resided in the government.
In pursuance of the same idea, Virginia proceeded at the same session to open her
Page 21 U. S. 586
land office for the sale of that country which now constitutes Kentucky, a country every acre of which was then
claimed and possessed by Indians, who maintained their title with as much persevering courage as was ever
manifested by any people.
The states, having within their chartered limits different portions of territory covered by Indians, ceded that territory
generally to the United States on conditions expressed in their deeds of cession, which demonstrate the opinion that
they ceded the soil as well as jurisdiction, and that in doing so they granted a productive fund to the government of the
Union. The lands in controversy lay within the chartered limits of Virginia, and were ceded with the whole country
northwest of the River Ohio. This grant contained reservations and stipulations which could only be made by the
owners of the soil, and concluded with a stipulation that
"all the lands in the ceded territory not reserved should be considered as a common fund for the use and benefit of
such of the United States as have become or shall become members of the confederation, . . . according to their usual
respective proportions in the general charge and expenditure, and shall be faithfully and bona fide disposed of for that
purpose, and for no other use or purpose whatsoever."
The ceded territory was occupied by numerous and warlike tribes of Indians, but the exclusive right of the United
States to extinguish their title and to grant the soil has never, we believe, been doubted.
Page 21 U. S. 587
After these states became independent, a controversy subsisted between them and Spain respecting boundary. By the
treaty of 1795, this controversy was adjusted and Spain ceded to the United States the territory in question. This
territory, though claimed by both nations, was chiefly in the actual occupation of Indians.
The magnificent purchase of Louisiana was the purchase from France of a country almost entirely occupied by
numerous tribes of Indians who are in fact independent. Yet any attempt of others to intrude into that country would be
considered as an aggression which would justify war.
Our late acquisitions from Spain are of the same character, and the negotiations which preceded those acquisitions
recognize and elucidate the principle which has been received as the foundation of all European title in America.
The United States, then, has unequivocally acceded to that great and broad rule by which its civilized inhabitants now
hold this country. They hold and assert in themselves the title by which it was acquired. They maintain, as all others
have maintained, that discovery gave an exclusive right to extinguish the Indian title of occupancy either by purchase
or by conquest, and gave also a right to such a degree of sovereignty as the circumstances of the people would allow
them to exercise.
The power now possessed by the government of the United States to grant lands, resided, while we were colonies, in
the Crown, or its grantees. The validity of the titles given by either has never
Page 21 U. S. 588
been questioned in our courts. It has been exercised uniformly over territory in possession of the Indians. The
existence of this power must negative the existence of any right which may conflict with and control it. An absolute
title to lands cannot exist at the same time in different persons or in different governments. An absolute must be an
exclusive title, or at least a title which excludes all others not compatible with it. All our institutions recognize the
absolute title of the Crown, subject only to the Indian right of occupancy, and recognize the absolute title of the Crown
to extinguish that right. This is incompatible with an absolute and complete title in the Indians.
We will not enter into the controversy whether agriculturists, merchants, and manufacturers have a right on abstract
principles to expel hunters from the territory they possess or to contract their limits. Conquest gives a title which the
courts of the conqueror cannot deny, whatever the private and speculative opinions of individuals may be, respecting
the original justice of the claim which has been successfully asserted. The British government, which was then our
government and whose rights have passed to the United States, asserted title to all the lands occupied by Indians
within the chartered limits of the British colonies. It asserted also a limited sovereignty over them and the exclusive
right of extinguishing the title which occupancy gave to them. These claims have been maintained and established as
far west as the River Mississippi by the sword. The title
Page 21 U. S. 589
to a vast portion of the lands we now hold originates in them. It is not for the courts of this country to question the
validity of this title or to sustain one which is incompatible with it.
Although we do not mean to engage in the defense of those principles which Europeans have applied to Indian title,
they may, we think, find some excuse, if not justification, in the character and habits of the people whose rights have
been wrested from them.
The title by conquest is acquired and maintained by force. The conqueror prescribes its limits. Humanity, however,
acting on public opinion, has established, as a general rule, that the conquered shall not be wantonly oppressed, and
that their condition shall remain as eligible as is compatible with the objects of the conquest. Most usually, they are
incorporated with the victorious nation, and become subjects or citizens of the government with which they are
connected. The new and old members of the society mingle with each other; the distinction between them is gradually
lost, and they make one people. Where this incorporation is practicable, humanity demands and a wise policy requires
that the rights of the conquered to property should remain unimpaired; that the new subjects should be governed as
equitably as the old, and that confidence in their security should gradually banish the painful sense of being separated
from their ancient connections, and united by force to strangers.
When the conquest is complete and the conquered inhabitants can be blended with the conquerors
Page 21 U. S. 590
or safely governed as a distinct people, public opinion, which not even the conqueror can disregard, imposes these
restraints upon him, and he cannot neglect them without injury to his fame and hazard to his power.
But the tribes of Indians inhabiting this country were fierce savages whose occupation was war and whose subsistence
was drawn chiefly from the forest. To leave them in possession of their country was to leave the country a wilderness;
to govern them as a distinct people was impossible because they were as brave and as high spirited as they were fierce,
and were ready to repel by arms every attempt on their independence.
What was the inevitable consequence of this state of things? The Europeans were under the necessity either of
abandoning the country and relinquishing their pompous claims to it or of enforcing those claims by the sword, and by
the adoption of principles adapted to the condition of a people with whom it was impossible to mix and who could not
be governed as a distinct society, or of remaining in their neighborhood, and exposing themselves and their families to
the perpetual hazard of being massacred.
Frequent and bloody wars, in which the whites were not always the aggressors, unavoidably ensued. European policy,
numbers, and skill prevailed. As the white population advanced, that of the Indians necessarily receded. The country in
the immediate neighborhood of agriculturists became unfit for them. The game fled
Page 21 U. S. 591
into thicker and more unbroken forests, and the Indians followed. The soil to which the Crown originally claimed title,
being no longer occupied by its ancient inhabitants, was parceled out according to the will of the sovereign power and
taken possession of by persons who claimed immediately from the Crown or mediately through its grantees or
deputies.
That law which regulates and ought to regulate in general the relations between the conqueror and conquered was
incapable of application to a people under such circumstances. The resort to some new and different rule better
adapted to the actual state of things was unavoidable. Every rule which can be suggested will be found to be attended
with great difficulty.
However extravagant the pretension of converting the discovery of an inhabited country into conquest may appear; if
the principle has been asserted in the first instance, and afterwards sustained; if a country has been acquired and held
under it; if the property of the great mass of the community originates in it, it becomes the law of the land and cannot
be questioned. So, too, with respect to the concomitant principle that the Indian inhabitants are to be considered
merely as occupants, to be protected, indeed, while in peace, in the possession of their lands, but to be deemed
incapable of transferring the absolute title to others. However this restriction may be opposed to natural right, and to
the usages of civilized nations, yet if it be indispensable to that system under which the country has been settled, and
be
Page 21 U. S. 592
adapted to the actual condition of the two people, it may perhaps be supported by reason, and certainly cannot be
rejected by courts of justice.
This question is not entirely new in this Court. The case of Fletcher v. Peck grew out of a sale made by the State of
Georgia of a large tract of country within the limits of that state, the grant of which was afterwards resumed. The
action was brought by a subpurchaser on the contract of sale, and one of the covenants in the deed was that the State
of Georgia was, at the time of sale, seized in fee of the premises. The real question presented by the issue was whether
the seizin in fee was in the State of Georgia or in the United States. After stating that this controversy between the
several states and the United States had been compromised, the court thought in necessary to notice the Indian title,
which, although entitled to the respect of all courts until it should be legitimately extinguished, was declared not to be
such as to be absolutely repugnant to a seizin in fee on the part of the state.
This opinion conforms precisely to the principle which has been supposed to be recognized by all European
governments from the first settlement of America. The absolute ultimate title has been considered as acquired by
discovery, subject only to the Indian title of occupancy, which title the discoverers possessed the exclusive right of
acquiring. Such a right is no more incompatible with a seizin in fee than a lease for years, and might as effectually bar
an ejectment.
Another view has been taken of this question
Page 21 U. S. 593
which deserves to be considered. The title of the Crown, whatever it might be, could be acquired only by a
conveyance from the Crown. If an individual might extinguish the Indian title for his own benefit, or in other words
might purchase it, still he could acquire only that title. Admitting their power to change their laws or usages so far as
to allow an individual to separate a portion of their lands from the common stock and hold it in severalty, still it is a
part of their territory and is held under them by a title dependent on their laws. The grant derives its efficacy from their
will, and if they choose to resume it and make a different disposition of the land, the courts of the United States cannot
interpose for the protection of the title. The person who purchases lands from the Indians within their territory
incorporates himself with them so far as respects the property purchased; holds their title under their protection and
subject to their laws. If they annul the grant, we know of no tribunal which can revise and set aside the proceeding. We
know of no principle which can distinguish this case from a grant made to a native Indian, authorizing him to hold a
particular tract of land in severalty.
As such a grant could not separate the Indian from his nation, nor give a title which our courts could distinguish from
the title of his tribe, as it might still be conquered from, or ceded by his tribe, we can perceive no legal principle which
will authorize a court to say that different consequences are attached to this purchase because it was made by a
stranger. By the treaties concluded
Page 21 U. S. 594
between the United States and the Indian nations whose title the plaintiffs claim, the country comprehending the lands
in controversy has been ceded to the United States without any reservation of their title. These nations had been at war
with the United States, and had an unquestionable right to annul any grant they had made to American citizens. Their
cession of the country without a reservation of this land affords a fair presumption that they considered it as of no
validity. They ceded to the United States this very property, after having used it in common with other lands as their
own, from the date of their deeds to the time of cession, and the attempt now made, is to set up their title against that
of the United States.
The proclamation issued by the King of Great Britain in 1763 has been considered, and we think with reason, as
constituting an additional objection to the title of the plaintiffs.
By that proclamation, the Crown reserved under its own dominion and protection, for the use of the Indians, "all the
land and territories lying to the westward of the sources of the rivers which fall into the sea from the west and
northwest," and strictly forbade all British subjects from making any purchases or settlements whatever or taking
possession of the reserved lands.
It has been contended that in this proclamation, the King transcended his constitutional powers, and the case
ofCampbell v. Hall, reported by Cowper, is relied on to support this position.
Page 21 U. S. 595
It is supposed to be a principle of universal law that if an uninhabited country be discovered by a number of
individuals who acknowledge no connection with and owe no allegiance to any government whatever, the country
becomes the property of the discoverers, so far at least as they can use it. They acquire a title in common. The title of
the whole land is in the whole society. It is to be divided and parceled out according to the will of the society,
expressed by the whole body or by that organ which is authorized by the whole to express it.
If the discovery be made and possession of the country be taken under the authority of an existing government, which
is acknowledged by the emigrants, it is supposed to be equally well settled, that the discovery is made for the whole
nation, that the country becomes a part of the nation, and that the vacant soil is to be disposed of by that organ of the
government which has the constitutional power to dispose of the national domains, by that organ in which all vacant
territory is vested by law.
According to the theory of the British Constitution, all vacant lands are vested in the Crown, as representing the
nation, and the exclusive power to grant them is admitted to reside in the Crown as a branch of the royal prerogative.
It has been already shown that this principle was as fully recognized in America as in the Island of Great Britain. All
the lands we hold were originally granted by the Crown, and the establishment of a regal government has never been
considered as
Page 21 U. S. 596
impairing its right to grant lands within the chartered limits of such colony. In addition to the proof of this principle,
furnished by the immense grants already mentioned of lands lying within the chartered limits of Virginia, the
continuing right of the Crown to grant lands lying within that colony was always admitted. A title might be obtained
either by making an entry with the surveyor of a county in pursuance of law or by an order of the governor in council,
who was the deputy of the King, or by an immediate grant from the Crown. In Virginia, therefore, as well as elsewhere
in the British dominions, the complete title of the Crown to vacant lands was acknowledged.
So far as respected the authority of the Crown, no distinction was taken between vacant lands and lands occupied by
the Indians. The title, subject only to the right of occupancy by the Indians, was admitted to be in the King, as was his
right to grant that title. The lands, then, to which this proclamation referred were lands which the King had a right to
grant, or to reserve for the Indians.
According to the theory of the British Constitution, the royal prerogative is very extensive so far as respects the
political relations between Great Britain and foreign nations. The peculiar situation of the Indians, necessarily
considered in some respects as a dependent and in some respects as a distinct people occupying a country claimed by
Great Britain, and yet too powerful and brave not to be dreaded as formidable enemies, required that means should be
adopted for
Page 21 U. S. 597
the preservation of peace, and that their friendship should be secured by quieting their alarms for their property. This
was to be effected by restraining the encroachments of the whites, and the power to do this was never, we believe,
denied by the colonies to the Crown.
In the case of Campbell v. Hall, that part of the proclamation was determined to be illegal, which imposed a tax on a
conquered province, after a government had been bestowed upon it. The correctness of this decision cannot be
questioned, but its application to the case at bar cannot be admitted. Since the expulsion of the Stuart family, the
power of imposing taxes by proclamation has never been claimed as a branch of regal prerogative, but the powers of
granting, or refusing to grant, vacant lands, and of restraining encroachments on the Indians have always been asserted
and admitted.
The authority of this proclamation, so far as it respected this continent, has never been denied, and the titles it gave to
lands have always been sustained in our courts.
In the argument of this cause, the counsel for the plaintiffs have relied very much on the opinions expressed by men
holding offices of trust, and on various proceedings in America to sustain titles to land derived from the Indians.
The collection of claims to lands lying in the western country made in the 1st volume of the Laws of the United States
has been referred to, but we find nothing in that collection to support the argument. Most of the titles were derived
Page 21 U. S. 598
from persons professing to act under the authority of the government existing at the time, and the two grants under
which the plaintiffs claim are supposed by the person under whose inspection the collection was made to be void,
because forbidden by the royal proclamation of 1763. It is not unworthy of remark that the usual mode adopted by the
Indians for granting lands to individuals has been to reserve them in a treaty or to grant them under the sanction of the
commissioners with whom the treaty was negotiated. The practice in such case to grant to the Crown for the use of the
individual is some evidence of a general understanding that the validity even of such a grant depended on its receiving
the royal sanction.
The controversy between the Colony of Connecticut and the Mohegan Indians depended on the nature and extent of a
grant made by those Indians to the colony; on the nature and extent of the reservations made by the Indians, in their
several deeds and treaties, which were alleged to be recognized by the legitimate authority; and on the violation by the
colony of rights thus reserved and secured. We do not perceive in that case any assertion of the principle that
individuals might obtain a complete and valid title from the Indians.
It has been stated that in the memorial transmitted from the Cabinet of London to that of Versailles, during the
controversy between the two nations respecting boundary which took place in 1755, the Indian right to the soil is
recognized.
Page 21 U. S. 599
But this recognition was made with reference to their character as Indians and for the purpose of showing that they
were fixed to a particular territory. It was made for the purpose of sustaining the claim of His Britannic Majesty to
dominion over them.
The opinion of the Attorney and Solicitor General, Pratt and Yorke, have been adduced to prove that in the opinion of
those great law officers, the Indian grant could convey a title to the soil without a patent emanating from the Crown.
The opinion of those persons would certainly be of great authority on such a question, and we were not a little
surprised when it was read, at the doctrine it seemed to advance. An opinion so contrary to the whole practice of the
Crown and to the uniform opinions given on all other occasions by its great law officers ought to be very explicit and
accompanied by the circumstances under which it was given, and to which it was applied before we can be assured
that it is properly understood. In a pamphlet written for the purpose of asserting the Indian title, styled "Plain Facts,"
the same opinion is quoted, and is said to relate to purchases made in the East Indies. It is, of course, entirely
inapplicable to purchases made in America. Chalmers, in whose collection this opinion is found, does not say to whom
it applies, but there is reason to believe that the author of Plain Facts is, in this respect, correct. The opinion
commences thus:
"In respect to such places as have been or shall be acquired by treaty or grant from any of the Indian princes or
governments,
Page 21 U. S. 600
your Majesty's letters patent are not necessary."
The words "princes or governments" are usually applied to the East Indians, but not to those of North America. We
speak of their sachems, their warriors, their chiefmen, their nations or tribes, not of their "princes or governments."
The question on which the opinion was given, too, and to which it relates, was whether the King's subjects carry with
them the common law wherever they may form settlements. The opinion is given with a view to this point, and its
object must be kept in mind while construing its expressions.
Much reliance is also placed on the fact, that many tracts are now held in the United States under the Indian title, the
validity of which is not questioned.
Before the importance attached to this fact is conceded, the circumstances under which such grants were obtained, and
such titles are supported, ought to be considered. These lands lie chiefly in the eastern states. It is known that the
Plymouth Company made many extensive grants which, from their ignorance of the country, interfered with each
other. It is also known that Mason to whom New Hampshire, and Gorges, to whom Maine was granted, found great
difficulty in managing such unwieldy property. The country was settled by emigrants, some from Europe, but chiefly
from Massachusetts, who took possession of lands they found unoccupied, and secured themselves in that possession
by the best means in their power. The disturbances in
Page 21 U. S. 601
England, and the civil war and revolution which followed those disturbances, prevented any interference on the part of
the mother country, and the proprietors were unable to maintain their title. In the meantime, Massachusetts claimed the
country and governed it. As her claim was adversary to that of the proprietors, she encouraged the settlement of
persons made under her authority, and encouraged likewise their securing themselves in possession, by purchasing the
acquiescence and forbearance of the Indians. After the restoration of Charles II, Gorges and Mason, when they
attempted to establish their title, found themselves opposed by men who held under Massachusetts and under the
Indians. The title of the proprietors was resisted, and though in some cases compromises were made and in some, the
opinion of a court was given ultimately in their favor, the juries found uniformly against them. They became wearied
with the struggle, and sold their property. The titles held under the Indians were sanctioned by length of possession,
but there is no case, so far as we are informed, of a judicial decision in their favor.
Much reliance has also been placed on a recital contained in the charter of Rhode Island, and on a letter addressed to
the governors of the neighboring colonies, by the King's command, in which some expressions are inserted, indicating
the royal approbation of titles acquired from the Indians.
The charter to Rhode Island recites
"That the said John Clark and others had transplanted
Page 21 U. S. 602
themselves into the midst of the Indian nations, and were seized and possessed, by purchase and consent of the said
natives, to their full content, of such lands,"
&c. And the letter recites, that
"Thomas Chifflinch and others, having, in the right of Major Asperton, a just propriety in the Narraghanset Country, in
New England, by grants from the native princes of that country, and being desirous to improve it into an English
colony, . . . are yet daily disturbed."
The impression this language might make, if viewed apart from the circumstances under which it was employed, will
be effaced, when considered in connection with those circumstances.
In the year 1635, the Plymouth Company surrendered their charter to the Crown. About the same time, the religious
dissentions of Massachusetts expelled from that colony several societies of individuals, one of which settled in Rhode
Island, on lands purchased from the Indians. They were not within the chartered limits of Massachusetts, and the
English government was too much occupied at home to bestow its attention on this subject. There existed no authority
to arrest their settlement of the country. If they obtained the Indian title, there were none to assert the title of the
Crown. Under these circumstances, the settlement became considerable. Individuals acquired separate property in
lands which they cultivated and improved; a government was established among themselves, and no power existed in
America which could rightfully interfere with it.
On the restoration of Charles II, this small society
Page 21 U. S. 603
hastened to acknowledge his authority, and to solicit his confirmation of their title to the soil, and to jurisdiction over
the country. Their solicitations were successful, and a charter was granted to them, containing the recital which has
been mentioned.
It is obvious that this transaction can amount to no acknowledgment that the Indian grant could convey a title
paramount to that of the Crown, or could in itself constitute a complete title. On the contrary, the charter of the Crown
was considered as indispensable to its completion.
It has never been contended that the Indian title amounted to nothing. Their right of possession has never been
questioned. The claim of government extends to the complete ultimate title, charged with this right of possession and
to the exclusive power of acquiring that right. The object of the Crown was to settle the seacoast of America, and
when a portion of it was settled, without violating the rights of others, by persons professing their loyalty, and
soliciting the royal sanction of an act, the consequences of which were ascertained to be beneficial, it would have been
as unwise as ungracious to expel them from their habitations, because they had obtained the Indian title otherwise than
through the agency of government. The very grant of a charter is an assertion of the title of the Crown, and its words
convey the same idea. The country granted is said to be "our island called Rhode Island," and the charter contains an
actual grant of the soil as well as of the powers of government.
Page 21 U. S. 604
The letter was written a few months before the charter was issued, apparently at the request of the agents of the
intended colony, for the sole purpose of preventing the trespasses of neighbors, who were disposed to claim some
authority over them. The King, being willing himself to ratify and confirm their title was, of course, inclined to quiet
them in their possession.
This charter and this letter certainly sanction a previous unauthorized purchase from Indians under the circumstances
attending that particular purchase, but are far from supporting the general proposition, that a title acquired from the
Indians would be valid against a title acquired from the Crown, or without the confirmation of the Crown.
The acts of the several colonial assemblies prohibiting purchases from the Indians have also been relied on as proving
that, independent of such prohibitions, Indian deeds would be valid. But we think this fact, at most, equivocal. While
the existence of such purchases would justify their prohibition, even by colonies which considered Indian deeds as
previously invalid, the fact that such acts have been generally passed, is strong evidence of the general opinion, that
such purchases are opposed by the soundest principles of wisdom and national policy.
After bestowing on this subject a degree of attention which was more required by the magnitude of the interest in
litigation, and the able and elaborate arguments of the bar, than by its intrinsic difficulty, the court is decidedly of
opinion, that the plaintiffs do not exhibit a title which can
Page 21 U. S. 605
be sustained in the courts of the United States, and that there is no error in the judgment which was rendered against
them in the District Court of Illinois.
Judgment affirmed with costs.
U.S. Supreme Court

Carino v. Insular Government, 212 U.S. 449 (1909)
Carino v. Insular Government of the Philippine Islands
No. 72
Argued January 13, 1909
Decided February 23, 1909
212 U.S. 449
ERROR TO THE SUPREME COURT
OF THE PHILIPPINE ISLANDS
Syllabus
Writ of error is the general, and appeal the exceptional, method of bringing Cases to this Court. The latter method is in
the main confined to equity cases, and the former is proper to bring up a judgment of the Supreme Court of the
Philippine Islands affirming a judgment of the Court of Land Registration dismissing an application for registration of
land.
Although a province may be excepted from the operation of Act No. 926 of 1903 of the Philippine Commission which
provides for the registration and perfecting of new titles, one who actually owns property in such province is entitled
to registration under Act No. 496 of 1902, which applies to the whole archipelago.
While, in legal theory and as against foreign nations, sovereignty is absolute, practically it is a question of strength and
of varying degree, and it is for a new sovereign to decide how far it will insist upon theoretical relations of the subject
to the former sovereign and how far it will recognize actual facts.
Page 212 U. S. 450

The acquisition of the Philippines was not for the purpose of acquiring the lands occupied by the inhabitants, and
under the Organic Act of July 1, 1902, c. 1369, 32 Stat. 691, providing that property rights are to be administered for
the benefit of the inhabitants, one who actually owned land for many years cannot be deprived of it for failure to
comply with certain ceremonies prescribed either by the acts of the Philippine Commission or by Spanish law.
The Organic Act of the Philippines made a bill of rights embodying safeguards of the Constitution, and, like the
Constitution, extends those safeguards to all.
Every presumption of ownership is in favor of one actually occupying land for many years, and against the
government which seeks to deprive him of it, for failure to comply with provisions of a subsequently enacted
registration act.
Title by prescription against the crown existed under Spanish law in force in the Philippine Islands prior to their
acquisition by the United States, and one occupying land in the Province of Benguet for more than fifty years before
the Treaty of Paris is entitled to the continued possession thereof.
7 Phil. 132 reversed.
The facts are stated in the opinion.
Page 212 U. S. 455

MR. JUSTICE HOLMES delivered the opinion of the Court.
This was an application to the Philippine Court of Land Registration for the registration of certain land. The
application was granted by the court on March 4, 1904. An appeal was taken to the Court of First Instance of the
Province of Benguet on behalf of the government of the Philippines, and also on behalf of the United States, those
governments having taken possession of the property for public and military purposes. The Court of First Instance
found the facts and dismissed the application upon grounds of law. This judgment was affirmed by the supreme court,
7 Phil. 132, and the case then was brought here by writ of error.
The material facts found are very few. The applicant and plaintiff in error is an Igorot of the Province of Benguet,
where the land lies. For more than fifty years before the Treaty of
Page 212 U. S. 456

Paris, April 11, 1899, as far back as the findings go, the plaintiff and his ancestors had held the land as owners. His
grandfather had lived upon it, and had maintained fences sufficient for the holding of cattle, according to the custom
of the country, some of the fences, it seems, having been of much earlier date. His father had cultivated parts and had
used parts for pasturing cattle, and he had used it for pasture in his turn. They all had been recognized as owners by
the Igorots, and he had inherited or received the land from his father in accordance with Igorot custom. No document
of title, however, had issued from the Spanish Crown, and although, in 1893-1894 and again in 1896-1897, he made
application for one under the royal decrees then in force, nothing seems to have come of it, unless, perhaps,
information that lands in Benguet could not be conceded until those to be occupied for a sanatorium, etc., had been
designated -- a purpose that has been carried out by the Philippine government and the United States. In 1901, the
plaintiff filed a petition, alleging ownership, under the mortgage law, and the lands were registered to him, that
process, however, establishing only a possessory title, it is said.
Before we deal with the merits, we must dispose of a technical point. The government has spent some energy in
maintaining that this case should have been brought up by appeal, and not by writ of error. We are of opinion,
however, that the mode adopted was right. The proceeding for registration is likened to bills in equity to quiet title, but
it is different in principle. It is a proceeding in rem under a statute of the type of the Torrens Act, such as was
discussed in Tyler v. Court of Registration, 175 Mass. 71. It is nearer to law than to equity, and is an assertion of legal
title; but we think it unnecessary to put it into either pigeon hole. A writ of error is the general method of bringing
cases to this Court, an appeal the exception, confined to equity in the main. There is no reason for not applying the
general rule to this case. Ormsby v. Webb, 134 U. S. 47, 134 U. S. 65; Campbell v. Porter, 162 U. S. 478; Metropolitan
R. Co. v. District of Columbia, 195 U. S. 322.
Page 212 U. S. 457

Another preliminary matter may as well be disposed of here. It is suggested that, even if the applicant have title, he
cannot have it registered, because the Philippine Commission's Act No. 926, of 1903, excepts the Province of Benguet
among others from its operation. But that act deals with the acquisition of new titles by homestead entries, purchase,
etc., and the perfecting of titles begun under the Spanish law. The applicant's claim is that he now owns the land, and
is entitled to registration under the Philippine Commission's Act No. 496, of 1902, which established a court for that
purpose with jurisdiction "throughout the Philippine Archipelago," 2, and authorized in general terms applications to
be made by persons claiming to own the legal estate in fee simple, as the applicant does. He is entitled to registration
if his claim of ownership can be maintained.
We come, then, to the question on which the case was decided below -- namely, whether the plaintiff owns the land.
The position of the government, shortly stated, is that Spain assumed, asserted, and had title to all the land in the
Philippines except so far as it saw fit to permit private titles to be acquired; that there was no prescription against the
Crown, and that, if there was, a decree of June 25, 1880, required registration within a limited time to make the title
good; that the plaintiff's land was not registered, and therefore became, if it was not always, public land; that the
United States succeeded to the title of Spain, and so that the plaintiff has no rights that the Philippine government is
bound to respect.
If we suppose for the moment that the government's contention is so far correct that the Crown of Spain in form
asserted a title to this land at the date of the Treaty of Paris, to which the United States succeeded, it is not to be
assumed without argument that the plaintiff's case is at an end. It is true that Spain, in its earlier decrees, embodied the
universal feudal theory that all lands were held from the Crown, and perhaps the general attitude of conquering
nations toward people not recognized as entitled to the treatment accorded to those
Page 212 U. S. 458

in the same zone of civilization with themselves. It is true also that, in legal theory, sovereignty is absolute, and that,
as against foreign nations, the United States may assert, as Spain asserted, absolute power. But it does not follow that,
as against the inhabitants of the Philippines, the United States asserts that Spain had such power. When theory is left
on one side, sovereignty is a question of strength, and may vary in degree. How far a new sovereign shall insist upon
the theoretical relation of the subjects to the head in the past, and how far it shall recognize actual facts, are matters for
it to decide.
The Province of Benguet was inhabited by a tribe that the Solicitor General, in his argument, characterized as a savage
tribe that never was brought under the civil or military government of the Spanish Crown. It seems probable, if not
certain, that the Spanish officials would not have granted to anyone in that province the registration to which formerly
the plaintiff was entitled by the Spanish laws, and which would have made his title beyond question good. Whatever
may have been the technical position of Spain, it does not follow that, in the view of the United States, he had lost all
rights and was a mere trespasser when the present government seized his land. The argument to that effect seems to
amount to a denial of native titles throughout an important part of the island of Luzon, at least, for the want of
ceremonies which the Spaniards would not have permitted and had not the power to enforce.
The acquisition of the Philippines was not like the settlement of the white race in the United States. Whatever
consideration may have been shown to the North American Indians, the dominant purpose of the whites in America
was to occupy the land. It is obvious that, however stated, the reason for our taking over the Philippines was different.
No one, we suppose, would deny that, so far as consistent with paramount necessities, our first object in the internal
administration of the islands is to do justice to the natives, not to exploit their country for private gain. By the Organic
Act of July 1, 1902, c. 1369, 12, 32 Stat. 691, all the property and rights acquired there by the
Page 212 U. S. 459

United States are to be administered "for the benefit of the inhabitants thereof." It is reasonable to suppose that the
attitude thus assumed by the United States with regard to what was unquestionably its own is also its attitude in
deciding what it will claim for its own. The same statute made a bill of rights, embodying the safeguards of the
Constitution, and, like the Constitution, extends those safeguards to all. It provides that
"no law shall be enacted in said islands which shall deprive any person of life, liberty, or property without due process
of law, or deny to any person therein the equal protection of the laws."
5. In the light of the declaration that we have quoted from 12, it is hard to believe that the United States was ready
to declare in the next breath that "any person" did not embrace the inhabitants of Benguet, or that it meant by
"property" only that which had become such by ceremonies of which presumably a large part of the inhabitants never
had heard, and that it proposed to treat as public land what they, by native custom and by long association -- one of the
profoundest factors in human thought -- regarded as their own.
It is true that, by 14, the government of the Philippines is empowered to enact rules and prescribe terms for
perfecting titles to public lands where some, but not all, Spanish conditions had been fulfilled, and to issue patents to
natives for not more than sixteen hectares of public lands actually occupied by the native or his ancestors before
August 13, 1898. But this section perhaps might be satisfied if confined to cases where the occupation was of land
admitted to be public land, and had not continued for such a length of time and under such circumstances as to give
rise to the understanding that the occupants were owners at that date. We hesitate to suppose that it was intended to
declare every native who had not a paper title a trespasser, and to set the claims of all the wilder tribes afloat. It is true
again that there is excepted from the provision that we have quoted as to the administration of the property and rights
acquired by the United States such land and property as shall be designated by the President for military or other
reservations,
Page 212 U. S. 460

as this land since has been. But there still remains the question what property and rights the United States asserted
itself to have acquired.
Whatever the law upon these points may be, and we mean to go no further than the necessities of decision demand,
every presumption is and ought to be against the government in a case like the present. It might, perhaps, be proper
and sufficient to say that when, as far back as testimony or memory goes, the land has been held by individuals under
a claim of private ownership, it will be presumed to have been held in the same way from before the Spanish
conquest, and never to have been public land. Certainly, in a case like this, if there is doubt or ambiguity in the
Spanish law, we ought to give the applicant the benefit of the doubt. Whether justice to the natives and the import of
the organic act ought not to carry us beyond a subtle examination of ancient texts, or perhaps even beyond the attitude
of Spanish law, humane though it was, it is unnecessary to decide. If, in a tacit way, it was assumed that the wild tribes
of the Philippines were to be dealt with as the power and inclination of the conqueror might dictate, Congress has not
yet sanctioned the same course as the proper one "for the benefit of the inhabitants thereof."
If the applicant's case is to be tried by the law of Spain, we do not discover such clear proof that it was bad by that law
as to satisfy us that he does not own the land. To begin with, the older decrees and laws cited by the counsel for the
plaintiff in error seem to indicate pretty clearly that the natives were recognized as owning some lands, irrespective of
any royal grant. In other words, Spain did not assume to convert all the native inhabitants of the Philippines into
trespassers, or even into tenants at will. For instance, Book 4, Title 12, Law 14 of the Recopilacion de Leyes de las
Indias, cited for a contrary conclusion in Valenton v. Murciano, 3 Phil. 537, while it commands viceroys and others,
when it seems proper, to call for the exhibition of grants, directs them to confirm those who hold by good grants
or justa prescripcion. It is true that it
Page 212 U. S. 461

begins by the characteristic assertion of feudal overlordship and the origin of all titles in the King or his predecessors.
That was theory and discourse. The fact was that titles were admitted to exist that owed nothing to the powers of Spain
beyond this recognition in their books.
Prescription is mentioned again in the royal cedula of October 15, 1754, cited in 3 Phil. 546:
"Where such possessors shall not be able to produce title deeds, it shall be sufficient if they shall show that ancient
possession, as a valid title by prescription."
It may be that this means possession from before 1700; but, at all events, the principle is admitted. As prescription,
even against Crown lands, was recognized by the laws of Spain, we see no sufficient reason for hesitating to admit
that it was recognized in the Philippines in regard to lands over which Spain had only a paper sovereignty.
The question comes, however, on the decree of June 25, 1880, for the adjustment of royal lands wrongfully occupied
by private individuals in the Philippine Islands. This begins with the usual theoretic assertion that, for private
ownership, there must have been a grant by competent authority; but instantly descends to fact by providing that, for
all legal effects, those who have been in possession for certain times shall be deemed owners. For cultivated land,
twenty years, uninterrupted, is enough. For uncultivated, thirty. Art. 5. So that, when this decree went into effect, the
applicant's father was owner of the land by the very terms of the decree. But, it is said, the object of this law was to
require the adjustment or registration proceedings that it described, and in that way to require everyone to get a
document of title or lose his land. That purpose may have been entertained, but it does not appear clearly to have been
applicable to all. The regulations purport to have been made "for the adjustment of royal lands wrongfully occupied by
private individuals." (We follow the translation in the government's brief.) It does not appear that this land ever was
royal land or wrongfully occupied. In Article 6, it is provided that
"interested parties not included within the two preceding
Page 212 U. S. 462
articles [the articles recognizing prescription of twenty and thirty years] may legalize their possession, and thereby
acquire the full ownership of the said lands, by means of adjustment proceedings, to be conducted in the following
manner."
This seems, by its very terms, not to apply to those declared already to be owners by lapse of time. Article 8 provides
for the case of parties not asking an adjustment of the lands of which they are unlawfully enjoying the possession,
within one year, and threatens that the treasury "will reassert the ownership of the state over the lands," and will sell at
auction such part as it does not reserve. The applicant's possession was not unlawful, and no attempt at any such
proceedings against him or his father ever was made. Finally, it should be noted that the natural construction of the
decree is confirmed by the report of the council of state. That report puts forward as a reason for the regulations that,
in view of the condition of almost all property in the Philippines, it is important to fix its status by general rules on the
principle that the lapse of a fixed period legalizes completely all possession, recommends in two articles twenty and
thirty years, as adopted in the decree, and then suggests that interested parties not included in those articles may
legalize their possession and acquire ownership by adjustment at a certain price.
It is true that the language of Articles 4 and 5 attributes title to those "who may prove" possession for the necessary
time, and we do not overlook the argument that this means may prove in registration proceedings. It may be that an
English conveyancer would have recommended an application under the foregoing decree, but certainly it was not
calculated to convey to the mind of an Igorot chief the notion that ancient family possessions were in danger, if he had
read every word of it. The words "may prove" (acrediten), as well, or better, in view of the other provisions, might be
taken to mean when called upon to do so in any litigation. There are indications that registration was expected from
all, but none sufficient to show that, for want of it, ownership actually gained would be lost.
Page 212 U. S. 463

The effect of the proof, wherever made, was not to confer title, but simply to establish it, as already conferred by the
decree, if not by earlier law. The royal decree of February 13, 1894, declaring forfeited titles that were capable of
adjustment under the decree of 1880, for which adjustment had not been sought, should not be construed as a
confiscation, but as the withdrawal of a privilege. As a matter of fact, the applicant never was disturbed. This same
decree is quoted by the Court of Land Registration for another recognition of the common law prescription of thirty
years as still running against alienable Crown land.
It will be perceived that the rights of the applicant under the Spanish law present a problem not without difficulties for
courts of a different legal tradition. We have deemed it proper on that account to notice the possible effect of the
change of sovereignty and the act of Congress establishing the fundamental principles now to be observed. Upon a
consideration of the whole case, we are of opinion that law and justice require that the applicant should be granted
what he seeks, and should not be deprived of what, by the practice and belief of those among whom he lived, was his
property, through a refined interpretation of an almost forgotten law of Spain.
Judgment reversed.
Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 167707
October 8, 2008
THE SECRETARY OF THE DEPARTMENT OF ENVIRONMENT AND NATURAL

RESOURCES, THE REGIONAL EXECUTIVE DIRECTOR, DENR-REGION VI,
REGIONAL TECHNICAL DIRECTOR FOR LANDS, LANDS MANAGEMENT BUREAU,
REGION VI PROVINCIAL ENVIRONMENT AND NATURAL RESOURCES OFFICER OF
KALIBO, AKLAN, REGISTER OF DEEDS, DIRECTOR OF LAND REGISTRATION
AUTHORITY, DEPARTMENT OF TOURISM SECRETARY, DIRECTOR OF PHILIPPINE
TOURISM AUTHORITY, petitioners,
vs.
MAYOR JOSE S. YAP, LIBERTAD TALAPIAN, MILA Y. SUMNDAD, and ANICETO YAP,
in their behalf and in behalf of all those similarly situated, respondents.
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x
G.R. No. G.R. No. 173775
October 8, 2008
DR. ORLANDO SACAY and WILFREDO GELITO, joined by THE LANDOWNERS OF

BORACAY SIMILARLY SITUATED NAMED IN A LIST, ANNEX "A" OF THIS
PETITION, petitioners,
vs.
THE SECRETARY OF THE DEPARTMENT OF ENVIRONMENT AND NATURAL
RESOURCES, THE REGIONAL TECHNICAL DIRECTOR FOR LANDS, LANDS

MANAGEMENT BUREAU, REGION VI, PROVINCIAL ENVIRONMENT AND NATURAL
RESOURCES OFFICER, KALIBO, AKLAN, respondents.
DECISION
REYES, R.T., J.:
AT stake in these consolidated cases is the right of the present occupants of Boracay Island to secure
titles over their occupied lands.
There are two consolidated petitions. The first is G.R. No. 167707, a petition for review
on certiorari of the Decision1 of the Court of Appeals (CA) affirming that 2 of the Regional Trial
Court (RTC) in Kalibo, Aklan, which granted the petition for declaratory relief filed by respondentsclaimants Mayor Jose Yap, et al. and ordered the survey of Boracay for titling purposes. The second
is G.R. No. 173775, a petition for prohibition, mandamus, and nullification of Proclamation No.
10645">[3] issued by President Gloria Macapagal-Arroyo classifying Boracay into reserved forest
and agricultural land.
The Antecedents
G.R. No. 167707
Boracay Island in the Municipality of Malay, Aklan, with its powdery white sand beaches and warm
crystalline waters, is reputedly a premier Philippine tourist destination. The island is also home to
12,003 inhabitants4 who live in the bone-shaped islands three barangays.5
On April 14, 1976, the Department of Environment and Natural Resources (DENR) approved the
National Reservation Survey of Boracay
Island,6 which identified several lots as being occupied or claimed by named persons. 7
On November 10, 1978, then President Ferdinand Marcos issued Proclamation No. 18018 declaring
Boracay Island, among other islands, caves and peninsulas in the Philippines, as tourist zones and
marine reservesunder the administration of the Philippine Tourism Authority (PTA). President
Marcos later approved the issuance of PTA Circular 3-829 dated September 3, 1982, to implement
Proclamation No. 1801.
Claiming that Proclamation No. 1801 and PTA Circular No 3-82 precluded them from filing an
application for judicial confirmation of imperfect title or survey of land for titling purposes,
respondents-claimants
Mayor Jose S. Yap, Jr., Libertad Talapian, Mila Y. Sumndad, and Aniceto Yap filed a petition for
declaratory relief with the RTC in Kalibo, Aklan.
In their petition, respondents-claimants alleged that Proclamation No. 1801 and PTA Circular No. 382 raised doubts on their right to secure titles over their occupied lands. They declared that they
themselves, or through their predecessors-in-interest, had been in open, continuous, exclusive, and
notorious possession and occupation in Boracay since June 12, 1945, or earlier since time
immemorial. They declared their lands for tax purposes and paid realty taxes on them. 10
Respondents-claimants posited that Proclamation No. 1801 and its implementing Circular did not
place Boracay beyond the commerce of man. Since the Island was classified as a tourist zone, it was
susceptible of private ownership. Under Section 48(b) of Commonwealth Act (CA) No. 141,
otherwise known as the Public Land Act, they had the right to have the lots registered in their names
through judicial confirmation of imperfect titles.
The Republic, through the Office of the Solicitor General (OSG), opposed the petition for
declaratory relief. The OSG countered that Boracay Island was an unclassified land of the public
domain. It formed part of the mass of lands classified as "public forest," which was not available for
disposition pursuant to Section 3(a) of Presidential Decree (PD) No. 705 or the Revised Forestry
Code,11 as amended.
The OSG maintained that respondents-claimants reliance on PD No. 1801 and PTA Circular No. 382 was misplaced. Their right to judicial confirmation of title was governed by CA No. 141 and PD
No. 705. Since Boracay Island had not been classified as alienable and disposable, whatever
possession they had cannot ripen into ownership.
During pre-trial, respondents-claimants and the OSG stipulated on the following facts: (1)
respondents-claimants were presently in possession of parcels of land in Boracay Island; (2) these
parcels of land were planted with coconut trees and other natural growing trees; (3) the coconut
trees had heights of more or less twenty (20) meters and were planted more or less fifty (50) years
ago; and (4) respondents-claimants declared the land they were occupying for tax purposes. 12
The parties also agreed that the principal issue for resolution was purely legal: whether
Proclamation No. 1801 posed any legal hindrance or impediment to the titling of the lands in
Boracay. They decided to forego with the trial and to submit the case for resolution upon submission
of their respective memoranda.13
The RTC took judicial notice14 that certain parcels of land in Boracay Island, more particularly Lots
1 and 30, Plan PSU-5344, were covered by Original Certificate of Title No. 19502 (RO 2222) in the
name of the Heirs of Ciriaco S. Tirol. These lots were involved in Civil Case Nos. 5222 and 5262
filed before the RTC of Kalibo, Aklan.15 The titles were issued on
August 7, 1933.16
RTC and CA Dispositions
On July 14, 1999, the RTC rendered a decision in favor of respondents-claimants, with
a fallo reading:
WHEREFORE, in view of the foregoing, the Court declares that Proclamation No. 1801 and PTA
Circular No. 3-82 pose no legal obstacle to the petitioners and those similarly situated to acquire
title to their lands in Boracay, in accordance with the applicable laws and in the manner prescribed
therein; and to have their lands surveyed and approved by respondent Regional Technical Director
of Lands as the approved survey does not in itself constitute a title to the land.
SO ORDERED.17
The RTC upheld respondents-claimants right to have their occupied lands titled in their name. It
ruled that neither Proclamation No. 1801 nor PTA Circular No. 3-82 mentioned that lands in
Boracay were inalienable or could not be the subject of disposition. 18 The Circular itself recognized
private ownership of lands.19 The trial court cited Sections 8720 and 5321 of the Public Land Act as
basis for acknowledging private ownership of lands in Boracay and that only those forested areas in
public lands were declared as part of the forest reserve.22
The OSG moved for reconsideration but its motion was denied. 23 The Republic then appealed to the
CA.
On December 9, 2004, the appellate court affirmed in toto the RTC decision, disposing as follows:
WHEREFORE, in view of the foregoing premises, judgment is hereby rendered by us DENYING
the appeal filed in this case and AFFIRMING the decision of the lower court. 24
The CA held that respondents-claimants could not be prejudiced by a declaration that the lands they
occupied since time immemorial were part of a forest reserve.
Again, the OSG sought reconsideration but it was similarly denied. 25 Hence, the present petition
under Rule 45.
G.R. No. 173775
On May 22, 2006, during the pendency of G.R. No. 167707, President Gloria Macapagal-Arroyo
issued Proclamation No. 106426 classifying Boracay Island into four hundred (400) hectares of
reserved forest land (protection purposes) and six hundred twenty-eight and 96/100 (628.96)
hectares of agricultural land (alienable and disposable). The Proclamation likewise provided for a
fifteen-meter buffer zone on each side of the centerline of roads and trails, reserved for right-of-way
and which shall form part of the area reserved for forest land protection purposes.
On August 10, 2006, petitioners-claimants Dr. Orlando Sacay,27 Wilfredo Gelito,28 and other
landowners29 in Boracay filed with this Court an original petition for prohibition, mandamus, and
nullification of Proclamation No. 1064.30 They allege that the Proclamation infringed on their "prior
vested rights" over portions of Boracay. They have been in continued possession of their respective
lots in Boracay since time immemorial. They have also invested billions of pesos in developing their
lands and building internationally renowned first class resorts on their lots.31
Petitioners-claimants contended that there is no need for a proclamation reclassifying Boracay into
agricultural land. Being classified as neither mineral nor timber land, the island
is deemed agricultural pursuant to the Philippine Bill of 1902 and Act No. 926, known as the first
Public Land Act.32 Thus, their possession in the concept of owner for the required period entitled
them to judicial confirmation of imperfect title.
Opposing the petition, the OSG argued that petitioners-claimants do not have a vested right over
their occupied portions in the island. Boracay is an unclassified public forest land pursuant to
Section 3(a) of PD No. 705. Being public forest, the claimed portions of the island are inalienable
and cannot be the subject of judicial confirmation of imperfect title. It is only the executive
department, not the courts, which has authority to reclassify lands of the public domain into
alienable and disposable lands. There is a need for a positive government act in order to release the
lots for disposition.
On November 21, 2006, this Court ordered the consolidation of the two petitions as they principally
involve the same issues on the land classification of Boracay Island. 33
Issues
G.R. No. 167707
The OSG raises the lone issue of whether Proclamation No. 1801 and PTA Circular No. 3-82 pose
any legal obstacle for respondents, and all those similarly situated, to acquire title to their occupied
lands in Boracay Island.34
G.R. No. 173775
Petitioners-claimants hoist five (5) issues, namely:
I.
AT THE TIME OF THE ESTABLISHED POSSESSION OF PETITIONERS IN CONCEPT OF
OWNER OVER THEIR RESPECTIVE AREAS IN BORACAY, SINCE TIME IMMEMORIAL
OR AT THE LATEST SINCE 30 YRS. PRIOR TO THE FILING OF THE PETITION FOR
DECLARATORY RELIEF ON NOV. 19, 1997, WERE THE AREAS OCCUPIED BY THEM
PUBLIC AGRICULTURAL LANDS AS DEFINED BY LAWS THEN ON JUDICIAL
CONFIRMATION OF IMPERFECT TITLES OR PUBLIC FOREST AS DEFINED BY SEC. 3a,
PD 705?
II.
HAVE PETITIONERS OCCUPANTS ACQUIRED PRIOR VESTED RIGHT OF PRIVATE
OWNERSHIPOVER THEIR OCCUPIED PORTIONS OF BORACAY LAND, DESPITE THE
FACT THAT THEY HAVE NOT APPLIED YET FOR JUDICIAL CONFIRMATION OF
IMPERFECT TITLE?
III.
IS THE EXECUTIVE DECLARATION OF THEIR AREAS AS ALIENABLE AND
DISPOSABLE UNDER SEC 6, CA 141 [AN] INDISPENSABLE PRE-REQUISITE FOR
PETITIONERS TO OBTAIN TITLEUNDER THE TORRENS SYSTEM?
IV.
IS THE ISSUANCE OF PROCLAMATION 1064 ON MAY 22, 2006, VIOLATIVE OF THE
PRIOR VESTED RIGHTS TO PRIVATE OWNERSHIP OF PETITIONERS OVER THEIR
LANDS IN BORACAY, PROTECTED BY THE DUE PROCESS CLAUSE OF THE
CONSTITUTION OR IS PROCLAMATION 1064 CONTRARY TO SEC. 8, CA 141, OR SEC.
4(a) OF RA 6657.
V.
CAN RESPONDENTS BE COMPELLED BY MANDAMUS TO ALLOW THE SURVEY AND
TO APPROVE THE SURVEY PLANS FOR PURPOSES OF THE APPLICATION FOR TITLING
OF THE LANDS OF PETITIONERS IN BORACAY? 35 (Underscoring supplied)
In capsule, the main issue is whether private claimants (respondents-claimants in G.R. No. 167707
and petitioners-claimants in G.R. No. 173775) have a right to secure titles over their occupied
portions in Boracay. The twin petitions pertain to their right, if any, to judicial confirmation of
imperfect title under CA No. 141, as amended. They do not involve their right to secure title under
other pertinent laws.
Our Ruling
Regalian Doctrine and power of the executive

to reclassify lands of the public domain
Private claimants rely on three (3) laws and executive acts in their bid for judicial confirmation of
imperfect title, namely: (a) Philippine Bill of 1902 36 in relation to Act No. 926, later amended and/or
superseded by Act No. 2874 and CA No. 141; 37 (b) Proclamation No. 180138 issued by then President
Marcos; and (c) Proclamation No. 106439 issued by President Gloria Macapagal-Arroyo. We shall
proceed to determine their rights to apply for judicial confirmation of imperfect title under these
laws and executive acts.
But first, a peek at the Regalian principle and the power of the executive to reclassify lands of the
public domain.
The 1935 Constitution classified lands of the public domain into agricultural, forest or
timber.40 Meanwhile, the 1973 Constitution provided the following divisions: agricultural, industrial
or commercial, residential, resettlement, mineral, timber or forest and grazing lands, and such other
classes as may be provided by law,41 giving the government great leeway for classification.42 Then
the 1987 Constitution reverted to the 1935 Constitution classification with one addition: national
parks.43 Of these, only agricultural lands may be alienated.44 Prior to Proclamation No. 1064 of May
22, 2006, Boracay Island had never been expressly and administratively classified under any of
these grand divisions. Boracay was an unclassified land of the public domain.
The Regalian Doctrine dictates that all lands of the public domain belong to the State, that the State
is the source of any asserted right to ownership of land and charged with the conservation of such
patrimony.45 The doctrine has been consistently adopted under the 1935, 1973, and 1987
Constitutions.46
All lands not otherwise appearing to be clearly within private ownership are presumed to belong to
the State.47Thus, all lands that have not been acquired from the government, either by purchase or by
grant, belong to the State as part of the inalienable public domain. 48 Necessarily, it is up to the State
to determine if lands of the public domain will be disposed of for private ownership. The
government, as the agent of the state, is possessed of the plenary power as the persona in law to
determine who shall be the favored recipients of public lands, as well as under what terms they may
be granted such privilege, not excluding the placing of obstacles in the way of their exercise of what
otherwise would be ordinary acts of ownership.49
Our present land law traces its roots to the Regalian Doctrine. Upon the Spanish conquest of the
Philippines, ownership of all lands, territories and possessions in the Philippines passed to the
Spanish Crown.50 The Regalian doctrine was first introduced in the Philippines through the Laws of
the Indies and the Royal Cedulas,which laid the foundation that "all lands that were not acquired
from the Government, either by purchase or by grant, belong to the public domain."51
The Laws of the Indies was followed by the Ley Hipotecaria or the Mortgage Law of 1893. The
Spanish Mortgage Law provided for the systematic registration of titles and deeds as well as
possessory claims.52
The Royal Decree of 1894 or the Maura Law 53 partly amended the Spanish Mortgage Law and
the Laws of the Indies. It established possessory information as the method of legalizing possession
of vacant Crown land, under certain conditions which were set forth in said decree. 54 Under Section
393 of the Maura Law, an informacion posesoria or possessory information title,55 when duly
inscribed in the Registry of Property, is converted into a title of ownership only after the lapse of
twenty (20) years of uninterrupted possession which must be actual, public, and adverse, 56 from the
date of its inscription.57 However, possessory information title had to be perfected one year after the
promulgation of the Maura Law, or until April 17, 1895. Otherwise, the lands would revert to the
State.58
In sum, private ownership of land under the Spanish regime could only be founded on royal
concessions which took various forms, namely: (1) titulo real or royal grant; (2) concesion
especial or special grant; (3) composicion con el estado or adjustment title; (4) titulo de compra or
title by purchase; and (5) informacion posesoria or possessory information title.59>
The first law governing the disposition of public lands in the Philippines under American rule was
embodied in the Philippine Bill of 1902.60 By this law, lands of the public domain in the Philippine
Islands were classified into three (3) grand divisions, to wit: agricultural, mineral, and timber or
forest lands.61 The act provided for, among others, the disposal of mineral lands by means of
absolute grant (freehold system) and by lease (leasehold system). 62 It also provided the definition by
exclusion of "agricultural public lands."63 Interpreting the meaning of "agricultural lands" under the
Philippine Bill of 1902, the Court declared in Mapa v. Insular Government:64
x x x In other words, that the phrase "agricultural land" as used in Act No. 926 means those
public lands acquired from Spain which are not timber or mineral lands. x x x65 (Emphasis
Ours)
On February 1, 1903, the Philippine Legislature passed Act No. 496, otherwise known as the Land
Registration Act. The act established a system of registration by which recorded title becomes
absolute, indefeasible, and imprescriptible. This is known as the Torrens system. 66
Concurrently, on October 7, 1903, the Philippine Commission passed Act No. 926, which was the
first Public Land Act. The Act introduced the homestead system and made provisions for judicial
and administrative confirmation of imperfect titles and for the sale or lease of public lands. It
permitted corporations regardless of the nationality of persons owning the controlling stock to lease
or purchase lands of the public domain. 67 Under the Act, open, continuous, exclusive, and notorious
possession and occupation of agricultural lands for the next ten (10) years preceding July 26, 1904
was sufficient for judicial confirmation of imperfect title.68
On November 29, 1919, Act No. 926 was superseded by Act No. 2874, otherwise known as the
second Public Land Act. This new, more comprehensive law limited the exploitation of agricultural
lands to Filipinos and Americans and citizens of other countries which gave Filipinos the same
privileges. For judicial confirmation of title, possession and occupation en concepto dueo since
time immemorial, or since July 26, 1894, was required.69
After the passage of the 1935 Constitution, CA No. 141 amended Act No. 2874 on December 1,
1936. To this day, CA No. 141, as amended, remains as the existing general law governing the
classification and disposition of lands of the public domain other than timber and mineral
lands,70 and privately owned lands which reverted to the State.71
Section 48(b) of CA No. 141 retained the requirement under Act No. 2874 of possession and
occupation of lands of the public domain since time immemorial or since July 26, 1894. However,
this provision was superseded by Republic Act (RA) No. 1942, 72 which provided for a simple thirtyyear prescriptive period for judicial confirmation of imperfect title. The provision was last amended
by PD No. 1073,73 which now provides for possession and occupation of the land applied for since
June 12, 1945, or earlier.74
The issuance of PD No. 892 75 on February 16, 1976 discontinued the use of Spanish titles as
evidence in land registration proceedings. 76 Under the decree, all holders of Spanish titles or grants
should apply for registration of their lands under Act No. 496 within six (6) months from the
effectivity of the decree on February 16, 1976. Thereafter, the recording of all unregistered
lands77 shall be governed by Section 194 of the Revised Administrative Code, as amended by Act
No. 3344.
On June 11, 1978, Act No. 496 was amended and updated by PD No. 1529, known as the Property
Registration Decree. It was enacted to codify the various laws relative to registration of property.78 It
governs registration of lands under the Torrens system as well as unregistered lands, including
chattel mortgages.79
A positive act declaring land as alienable and disposable is required. In keeping with the
presumption of State ownership, the Court has time and again emphasized that there must be a
positive act of the government, such as an official proclamation, 80 declassifying inalienable public
land into disposable land for agricultural or other purposes. 81 In fact, Section 8 of CA No. 141 limits
alienable or disposable lands only to those lands which have been "officially delimited and
classified."82
The burden of proof in overcoming the presumption of State ownership of the lands of the public
domain is on the person applying for registration (or claiming ownership), who must prove that the
land subject of the application is alienable or disposable. 83 To overcome this presumption,
incontrovertible evidence must be established that the land subject of the application (or claim) is
alienable or disposable.84 There must still be a positive act declaring land of the public domain as
alienable and disposable. To prove that the land subject of an application for registration is
alienable, the applicant must establish the existence of a positive act of the government such as a
presidential proclamation or an executive order; an administrative action; investigation reports of
Bureau of Lands investigators; and a legislative act or a statute. 85 The applicant may also secure a
certification from the government that the land claimed to have been possessed for the required
number of years is alienable and disposable.86
In the case at bar, no such proclamation, executive order, administrative action, report, statute, or
certification was presented to the Court. The records are bereft of evidence showing that, prior to
2006, the portions of Boracay occupied by private claimants were subject of a government
proclamation that the land is alienable and disposable. Absent such well-nigh incontrovertible
evidence, the Court cannot accept the submission that lands occupied by private claimants were
already open to disposition before 2006. Matters of land classification or reclassification cannot be
assumed. They call for proof.87
Ankron and De Aldecoa did not make the whole of Boracay Island, or portions of it, agricultural
lands.Private claimants posit that Boracay was already an agricultural land pursuant to the old
cases Ankron v. Government of the Philippine Islands (1919)88 and De Aldecoa v. The Insular
Government (1909).89 These cases were decided under the provisions of the Philippine Bill of 1902
and Act No. 926. There is a statement in these old cases that "in the absence of evidence to the
contrary, that in each case the lands are agricultural lands until the contrary is shown." 90
Private claimants reliance on Ankron and De Aldecoa is misplaced. These cases did not have the
effect of converting the whole of Boracay Island or portions of it into agricultural lands. It should be
stressed that the Philippine Bill of 1902 and Act No. 926 merely provided the manner through which
land registration courts would classify lands of the public domain. Whether the land would be
classified as timber, mineral, or agricultural depended on proof presented in each case.
Ankron and De Aldecoa were decided at a time when the President of the Philippines had no power
to classify lands of the public domain into mineral, timber, and agricultural. At that time, the courts
were free to make corresponding classifications in justiciable cases, or were vested with implicit
power to do so, depending upon the preponderance of the evidence. 91 This was the Courts ruling
in Heirs of the Late Spouses Pedro S. Palanca and Soterranea Rafols Vda. De Palanca v.
Republic,92 in which it stated, through Justice Adolfo Azcuna, viz.:
x x x Petitioners furthermore insist that a particular land need not be formally released by an act of
the Executive before it can be deemed open to private ownership, citing the cases of Ramos v.
Director of Lands and Ankron v. Government of the Philippine Islands.
xxxx
Petitioners reliance upon Ramos v. Director of Lands and Ankron v. Government is misplaced.
These cases were decided under the Philippine Bill of 1902 and the first Public Land Act No. 926
enacted by the Philippine Commission on October 7, 1926, under which there was no legal
provision vesting in the Chief Executive or President of the Philippines the power to classify lands
of the public domain into mineral, timber and agricultural so that the courts then were free to make
corresponding classifications in justiciable cases, or were vested with implicit power to do so,
depending upon the preponderance of the evidence.93
To aid the courts in resolving land registration cases under Act No. 926, it was then necessary to
devise a presumption on land classification. Thus evolved the dictum in Ankron that "the courts
have a right to presume, in the absence of evidence to the contrary, that in each case the lands are
agricultural lands until the contrary is shown."94
But We cannot unduly expand the presumption in Ankron and De Aldecoa to an argument that all
lands of the public domain had been automatically reclassified as disposable and alienable
agricultural lands. By no stretch of imagination did the presumption convert all lands of the public
domain into agricultural lands.
If We accept the position of private claimants, the Philippine Bill of 1902 and Act No. 926 would
have automatically made all lands in the Philippines, except those already classified as timber or
mineral land, alienable and disposable lands. That would take these lands out of State ownership
and worse, would be utterly inconsistent with and totally repugnant to the long-entrenched Regalian
doctrine.
The presumption in Ankron and De Aldecoa attaches only to land registration cases brought under
the provisions of Act No. 926, or more specifically those cases dealing with judicial and
administrative confirmation of imperfect titles. The presumption applies to an applicant for judicial
or administrative conformation of imperfect title under Act No. 926. It certainly cannot apply to
landowners, such as private claimants or their predecessors-in-interest, who failed to avail
themselves of the benefits of Act No. 926. As to them, their land remained unclassified and, by
virtue of the Regalian doctrine, continued to be owned by the State.
In any case, the assumption in Ankron and De Aldecoa was not absolute. Land classification was, in
the end, dependent on proof. If there was proof that the land was better suited for non-agricultural
uses, the courts could adjudge it as a mineral or timber land despite the presumption. In Ankron, this
Court stated:
In the case of Jocson vs. Director of Forestry (supra), the Attorney-General admitted in effect that
whether the particular land in question belongs to one class or another is a question of fact. The
mere fact that a tract of land has trees upon it or has mineral within it is not of itself sufficient to
declare that one is forestry land and the other, mineral land. There must be some proof of the extent
and present or future value of the forestry and of the minerals. While, as we have just said, many
definitions have been given for "agriculture," "forestry," and "mineral" lands, and that in each case it
is a question of fact, we think it is safe to say that in order to be forestry or mineral land the proof
must show that it is more valuable for the forestry or the mineral which it contains than it is for
agricultural purposes. (Sec. 7, Act No. 1148.) It is not sufficient to show that there exists some trees
upon the land or that it bears some mineral. Land may be classified as forestry or mineral today,
and, by reason of the exhaustion of the timber or mineral, be classified as agricultural land
tomorrow. And vice-versa, by reason of the rapid growth of timber or the discovery of valuable
minerals, lands classified as agricultural today may be differently classified tomorrow. Each case
must be decided upon the proof in that particular case, having regard for its present or future
value for one or the other purposes. We believe, however, considering the fact that it is a matter of
public knowledge that a majority of the lands in the Philippine Islands are agricultural lands that the
courts have a right to presume, in the absence of evidence to the contrary, that in each case the lands
are agricultural lands until the contrary is shown. Whatever the land involved in a particular land
registration case is forestry or mineral land must, therefore, be a matter of proof. Its superior
value for one purpose or the other is a question of fact to be settled by the proof in each
particular case. The fact that the land is a manglar [mangrove swamp] is not sufficient for the
courts to decide whether it is agricultural, forestry, or mineral land. It may perchance belong to one
or the other of said classes of land. The Government, in the first instance, under the provisions of
Act No. 1148, may, by reservation, decide for itself what portions of public land shall be considered
forestry land, unless private interests have intervened before such reservation is made. In the latter
case, whether the land is agricultural, forestry, or mineral, is a question of proof. Until private
interests have intervened, the Government, by virtue of the terms of said Act (No. 1148), may
decide for itself what portions of the "public domain" shall be set aside and reserved as forestry or
mineral land. (Ramos vs. Director of Lands, 39 Phil. 175; Jocson vs. Director of
Forestry, supra)95 (Emphasis ours)
Since 1919, courts were no longer free to determine the classification of lands from the facts of each
case, except those that have already became private lands. 96 Act No. 2874, promulgated in 1919 and
reproduced in Section 6 of CA No. 141, gave the Executive Department, through the President,
the exclusive prerogative to classify or reclassify public lands into alienable or disposable, mineral
or forest.96-a Since then, courts no longer had the authority, whether express or implied, to determine
the classification of lands of the public domain.97
Here, private claimants, unlike the Heirs of Ciriaco Tirol who were issued their title in 1933, 98 did
not present a justiciable case for determination by the land registration court of the propertys land
classification. Simply put, there was no opportunity for the courts then to resolve if the land the
Boracay occupants are now claiming were agricultural lands. When Act No. 926 was supplanted by
Act No. 2874 in 1919, without an application for judicial confirmation having been filed by private
claimants or their predecessors-in-interest, the courts were no longer authorized to determine the
propertys land classification. Hence, private claimants cannot bank on Act No. 926.
We note that the RTC decision99 in G.R. No. 167707 mentioned Krivenko v. Register of Deeds of
Manila,100 which was decided in 1947 when CA No. 141, vesting the Executive with the sole power
to classify lands of the public domain was already in effect. Krivenko cited the old cases Mapa v.
Insular Government,101 De Aldecoa v. The Insular Government, 102 and Ankron v. Government of the
Philippine Islands.103
Krivenko, however, is not controlling here because it involved a totally different issue. The pertinent
issue inKrivenko was whether residential lots were included in the general classification of
agricultural lands; and if so, whether an alien could acquire a residential lot. This Court ruled that as
an alien, Krivenko was prohibited by the 1935 Constitution 104 from acquiring agricultural land,
which included residential lots. Here, the issue is whether unclassified lands of the public domain
are automatically deemed agricultural.
Notably, the definition of "agricultural public lands" mentioned in Krivenko relied on the old cases
decided prior to the enactment of Act No. 2874, including Ankron and De Aldecoa.105 As We have
already stated, those cases cannot apply here, since they were decided when the Executive did not
have the authority to classify lands as agricultural, timber, or mineral.
Private claimants continued possession under Act No. 926 does not create a presumption that the
land is alienable. Private claimants also contend that their continued possession of portions of
Boracay Island for the requisite period of ten (10) years under Act No. 926 106 ipso facto converted
the island into private ownership. Hence, they may apply for a title in their name.
A similar argument was squarely rejected by the Court in Collado v. Court of
Appeals.107 Collado, citing the separate opinion of now Chief Justice Reynato S. Puno in Cruz v.
Secretary of Environment and Natural Resources,107-a ruled:
"Act No. 926, the first Public Land Act, was passed in pursuance of the provisions of the Philippine
Bill of 1902. The law governed the disposition of lands of the public domain. It prescribed rules and
regulations for the homesteading, selling and leasing of portions of the public domain of the
Philippine Islands, and prescribed the terms and conditions to enable persons to perfect their titles to
public lands in the Islands. It also provided for the "issuance of patents to certain native settlers
upon public lands," for the establishment of town sites and sale of lots therein, for the completion of
imperfect titles, and for the cancellation or confirmation of Spanish concessions and grants in the
Islands." In short, the Public Land Act operated on the assumption that title to public lands in the
Philippine Islands remained in the government; and that the governments title to public land
sprung from the Treaty of Paris and other subsequent treaties between Spain and the United
States. The term "public land" referred to all lands of the public domain whose title still remained in
the government and are thrown open to private appropriation and settlement, and excluded the
patrimonial property of the government and the friar lands."
Thus, it is plain error for petitioners to argue that under the Philippine Bill of 1902 and Public
Land Act No. 926, mere possession by private individuals of lands creates the legal
presumption that the lands are alienable and disposable.108 (Emphasis Ours)
Except for lands already covered by existing titles, Boracay was an unclassified land of the public
domain prior to Proclamation No. 1064. Such unclassified lands are considered public forest
under PD No. 705. The DENR109 and the National Mapping and Resource Information
Authority110 certify that Boracay Island is an unclassified land of the public domain.
PD No. 705 issued by President Marcos categorized all unclassified lands of the public domain as
public forest. Section 3(a) of PD No. 705 defines a public forest as "a mass of lands of the public
domain which has not been the subject of the present system of classification for the determination
of which lands are needed for forest purpose and which are not." Applying PD No. 705, all
unclassified lands, including those in Boracay Island, are ipso factoconsidered public forests. PD
No. 705, however, respects titles already existing prior to its effectivity.
The Court notes that the classification of Boracay as a forest land under PD No. 705 may seem to be
out of touch with the present realities in the island. Boracay, no doubt, has been partly stripped of its
forest cover to pave the way for commercial developments. As a premier tourist destination for local
and foreign tourists, Boracay appears more of a commercial island resort, rather than a forest land.
Nevertheless, that the occupants of Boracay have built multi-million peso beach resorts on the
island;111 that the island has already been stripped of its forest cover; or that the implementation of
Proclamation No. 1064 will destroy the islands tourism industry, do not negate its character as
public forest.
Forests, in the context of both the Public Land Act and the Constitution 112 classifying lands of the
public domain into "agricultural, forest or timber, mineral lands, and national parks," do not
necessarily refer to large tracts of wooded land or expanses covered by dense growths of trees and
underbrushes.113 The discussion in Heirs of Amunategui v. Director of Forestry 114 is particularly
instructive:
A forested area classified as forest land of the public domain does not lose such classification
simply because loggers or settlers may have stripped it of its forest cover. Parcels of land classified
as forest land may actually be covered with grass or planted to crops by kaingin cultivators or other
farmers. "Forest lands" do not have to be on mountains or in out of the way places. Swampy areas
covered by mangrove trees, nipa palms, and other trees growing in brackish or sea water may also
be classified as forest land. The classification is descriptive of its legal nature or status and does
not have to be descriptive of what the land actually looks like. Unless and until the land
classified as "forest" is released in an official proclamation to that effect so that it may form part of
the disposable agricultural lands of the public domain, the rules on confirmation of imperfect title
do not apply.115 (Emphasis supplied)
There is a big difference between "forest" as defined in a dictionary and "forest or timber land" as a
classification of lands of the public domain as appearing in our statutes. One is descriptive of what
appears on the land while the other is a legal status, a classification for legal purposes. 116 At any rate,
the Court is tasked to determine thelegal status of Boracay Island, and not look into its physical
layout. Hence, even if its forest cover has been replaced by beach resorts, restaurants and other
commercial establishments, it has not been automatically converted from public forest to alienable
agricultural land.
Private claimants cannot rely on Proclamation No. 1801 as basis for judicial confirmation of
imperfect title. The proclamation did not convert Boracay into an agricultural land. However,
private claimants argue that Proclamation No. 1801 issued by then President Marcos in 1978 entitles
them to judicial confirmation of imperfect title. The Proclamation classified Boracay, among other
islands, as a tourist zone. Private claimants assert that, as a tourist spot, the island is susceptible of
private ownership.
Proclamation No. 1801 or PTA Circular No. 3-82 did not convert the whole of Boracay into an
agricultural land. There is nothing in the law or the Circular which made Boracay Island an
agricultural land. The reference in Circular No. 3-82 to "private lands" 117 and "areas declared as
alienable and disposable"118 does not by itself classify the entire island as agricultural. Notably,
Circular No. 3-82 makes reference not only to private lands and areas but also to public forested
lands. Rule VIII, Section 3 provides:
No trees in forested private lands may be cut without prior authority from the PTA. All
forested areas in public lands are declared forest reserves. (Emphasis supplied)
Clearly, the reference in the Circular to both private and public lands merely recognizes that the
island can be classified by the Executive department pursuant to its powers under CA No. 141. In
fact, Section 5 of the Circular recognizes the then Bureau of Forest Developments authority to
declare areas in the island as alienable and disposable when it provides:
Subsistence farming, in areas declared as alienable and disposable by the Bureau of Forest
Development.
Therefore, Proclamation No. 1801 cannot be deemed the positive act needed to classify Boracay
Island as alienable and disposable land. If President Marcos intended to classify the island as
alienable and disposable or forest, or both, he would have identified the specific limits of each, as
President Arroyo did in Proclamation No. 1064. This was not done in Proclamation No. 1801.
The Whereas clauses of Proclamation No. 1801 also explain the rationale behind the declaration of
Boracay Island, together with other islands, caves and peninsulas in the Philippines, as a tourist
zone and marine reserve to be administered by the PTA to ensure the concentrated efforts of the
public and private sectors in the development of the areas tourism potential with due regard for
ecological balance in the marine environment. Simply put, the proclamation is aimed at
administering the islands for tourism and ecological purposes. It does not address the areas
alienability.119
More importantly, Proclamation No. 1801 covers not only Boracay Island, but sixty-four (64) other
islands, coves, and peninsulas in the Philippines, such as Fortune and Verde Islands in Batangas,
Port Galera in Oriental Mindoro, Panglao and Balicasag Islands in Bohol, Coron Island, Puerto
Princesa and surrounding areas in Palawan, Camiguin Island in Cagayan de Oro, and Misamis
Oriental, to name a few. If the designation of Boracay Island as tourist zone makes it alienable and
disposable by virtue of Proclamation No. 1801, all the other areas mentioned would likewise be
declared wide open for private disposition. That could not have been, and is clearly beyond, the
intent of the proclamation.
It was Proclamation No. 1064 of 2006 which positively declared part of Boracay as alienable and
opened the same to private ownership. Sections 6 and 7 of CA No. 141 120 provide that it is only the
President, upon the recommendation of the proper department head, who has the authority to
classify the lands of the public domain into alienable or disposable, timber and mineral lands. 121
In issuing Proclamation No. 1064, President Gloria Macapagal-Arroyo merely exercised the
authority granted to her to classify lands of the public domain, presumably subject to existing vested
rights. Classification of public lands is the exclusive prerogative of the Executive Department,
through the Office of the President. Courts have no authority to do so. 122 Absent such classification,
the land remains unclassified until released and rendered open to disposition. 123
Proclamation No. 1064 classifies Boracay into 400 hectares of reserved forest land and 628.96
hectares of agricultural land. The Proclamation likewise provides for a 15-meter buffer zone on each
side of the center line of roads and trails, which are reserved for right of way and which shall form
part of the area reserved for forest land protection purposes.
Contrary to private claimants argument, there was nothing invalid or irregular, much less
unconstitutional, about the classification of Boracay Island made by the President through
Proclamation No. 1064. It was within her authority to make such classification, subject to existing
vested rights.
Proclamation No. 1064 does not violate the Comprehensive Agrarian Reform Law. Private
claimants further assert that Proclamation No. 1064 violates the provision of the Comprehensive
Agrarian Reform Law (CARL) or RA No. 6657 barring conversion of public forests into
agricultural lands. They claim that since Boracay is a public forest under PD No. 705, President
Arroyo can no longer convert it into an agricultural land without running afoul of Section 4(a) of
RA No. 6657, thus:
SEC. 4. Scope. The Comprehensive Agrarian Reform Law of 1988 shall cover, regardless of
tenurial arrangement and commodity produced, all public and private agricultural lands as provided
in Proclamation No. 131 and Executive Order No. 229, including other lands of the public domain
suitable for agriculture.
More specifically, the following lands are covered by the Comprehensive Agrarian Reform
Program:
(a) All alienable and disposable lands of the public domain devoted to or suitable for agriculture.
No reclassification of forest or mineral lands to agricultural lands shall be undertaken after the
approval of this Act until Congress, taking into account ecological, developmental and equity
considerations, shall have determined by law, the specific limits of the public domain.
That Boracay Island was classified as a public forest under PD No. 705 did not bar the Executive
from later converting it into agricultural land. Boracay Island still remained an unclassified land of
the public domain despite PD No. 705.
In Heirs of the Late Spouses Pedro S. Palanca and Soterranea Rafols v. Republic, 124 the Court stated
that unclassified lands are public forests.
While it is true that the land classification map does not categorically state that the islands are
public forests, the fact that they were unclassified lands leads to the same result. In the absence
of the classification as mineral or timber land, the land remains unclassified land until released and
rendered open to disposition.125 (Emphasis supplied)
Moreover, the prohibition under the CARL applies only to a "reclassification" of land. If the land
had never been previously classified, as in the case of Boracay, there can be no prohibited
reclassification under the agrarian law. We agree with the opinion of the Department of Justice 126 on
this point:
Indeed, the key word to the correct application of the prohibition in Section 4(a) is the word
"reclassification." Where there has been no previous classification of public forest [referring, we
repeat, to the mass of the public domain which has not been the subject of the present system of
classification for purposes of determining which are needed for forest purposes and which are not]
into permanent forest or forest reserves or some other forest uses under the Revised Forestry Code,
there can be no "reclassification of forest lands" to speak of within the meaning of Section 4(a).
Thus, obviously, the prohibition in Section 4(a) of the CARL against the reclassification of forest
lands to agricultural lands without a prior law delimiting the limits of the public domain, does not,
and cannot, apply to those lands of the public domain, denominated as "public forest" under the
Revised Forestry Code, which have not been previously determined, or classified, as needed for
forest purposes in accordance with the provisions of the Revised Forestry Code. 127
Private claimants are not entitled to apply for judicial confirmation of imperfect title under CA
No. 141. Neither do they have vested rights over the occupied lands under the said law. There are
two requisites for judicial confirmation of imperfect or incomplete title under CA No. 141, namely:
(1) open, continuous, exclusive, and notorious possession and occupation of the subject land by
himself or through his predecessors-in-interest under a bona fide claim of ownership since time
immemorial or from June 12, 1945; and (2) the classification of the land as alienable and disposable
land of the public domain.128
As discussed, the Philippine Bill of 1902, Act No. 926, and Proclamation No. 1801 did not convert
portions of Boracay Island into an agricultural land. The island remained an unclassified land of the
public domain and, applying the Regalian doctrine, is considered State property.
Private claimants bid for judicial confirmation of imperfect title, relying on the Philippine Bill of
1902, Act No. 926, and Proclamation No. 1801, must fail because of the absence of the second
element of alienable and disposable land. Their entitlement to a government grant under our present
Public Land Act presupposes that the land possessed and applied for is already alienable and
disposable. This is clear from the wording of the law itself. 129Where the land is not alienable and
disposable, possession of the land, no matter how long, cannot confer ownership or possessory
rights.130
Neither may private claimants apply for judicial confirmation of imperfect title under Proclamation
No. 1064, with respect to those lands which were classified as agricultural lands. Private claimants
failed to prove the first element of open, continuous, exclusive, and notorious possession of their
lands in Boracay since June 12, 1945.
We cannot sustain the CA and RTC conclusion in the petition for declaratory relief that private
claimants complied with the requisite period of possession.
The tax declarations in the name of private claimants are insufficient to prove the first element of
possession. We note that the earliest of the tax declarations in the name of private claimants were
issued in 1993. Being of recent dates, the tax declarations are not sufficient to convince this Court
that the period of possession and occupation commenced on June 12, 1945.
Private claimants insist that they have a vested right in Boracay, having been in possession of the
island for a long time. They have invested millions of pesos in developing the island into a tourist
spot. They say their continued possession and investments give them a vested right which cannot be
unilaterally rescinded by Proclamation No. 1064.
The continued possession and considerable investment of private claimants do not automatically
give them a vested right in Boracay. Nor do these give them a right to apply for a title to the land
they are presently occupying. This Court is constitutionally bound to decide cases based on the
evidence presented and the laws applicable. As the law and jurisprudence stand, private claimants
are ineligible to apply for a judicial confirmation of title over their occupied portions in Boracay
even with their continued possession and considerable investment in the island.
One Last Note
The Court is aware that millions of pesos have been invested for the development of Boracay Island,
making it a by-word in the local and international tourism industry. The Court also notes that for a
number of years, thousands of people have called the island their home. While the Court
commiserates with private claimants plight, We are bound to apply the law strictly and judiciously.
This is the law and it should prevail. Ito ang batas at ito ang dapat umiral.
All is not lost, however, for private claimants. While they may not be eligible to apply for judicial
confirmation of imperfect title under Section 48(b) of CA No. 141, as amended, this does not denote
their automatic ouster from the residential, commercial, and other areas they possess now classified
as agricultural. Neither will this mean the loss of their substantial investments on their occupied
alienable lands. Lack of title does not necessarily mean lack of right to possess.
For one thing, those with lawful possession may claim good faith as builders of improvements.
They can take steps to preserve or protect their possession. For another, they may look into other
modes of applying for original registration of title, such as by homestead 131 or sales patent,132 subject
to the conditions imposed by law.
More realistically, Congress may enact a law to entitle private claimants to acquire title to their
occupied lots or to exempt them from certain requirements under the present land laws. There is one
such bill133 now pending in the House of Representatives. Whether that bill or a similar bill will
become a law is for Congress to decide.
In issuing Proclamation No. 1064, the government has taken the step necessary to open up the
island to private ownership. This gesture may not be sufficient to appease some sectors which view
the classification of the island partially into a forest reserve as absurd. That the island is no longer
overrun by trees, however, does not becloud the vision to protect its remaining forest cover and to
strike a healthy balance between progress and ecology. Ecological conservation is as important as
economic progress.
To be sure, forest lands are fundamental to our nations survival. Their promotion and protection are
not just fancy rhetoric for politicians and activists. These are needs that become more urgent as
destruction of our environment gets prevalent and difficult to control. As aptly observed by Justice
Conrado Sanchez in 1968 in Director of Forestry v. Munoz:134
The view this Court takes of the cases at bar is but in adherence to public policy that should be
followed with respect to forest lands. Many have written much, and many more have spoken, and
quite often, about the pressing need for forest preservation, conservation, protection, development
and reforestation. Not without justification. For, forests constitute a vital segment of any country's
natural resources. It is of common knowledge by now that absence of the necessary green cover on
our lands produces a number of adverse or ill effects of serious proportions. Without the trees,
watersheds dry up; rivers and lakes which they supply are emptied of their contents. The fish
disappear. Denuded areas become dust bowls. As waterfalls cease to function, so will hydroelectric
plants. With the rains, the fertile topsoil is washed away; geological erosion results. With erosion
come the dreaded floods that wreak havoc and destruction to property crops, livestock, houses,
and highways not to mention precious human lives. Indeed, the foregoing observations should be
written down in a lumbermans decalogue.135
WHEREFORE, judgment is rendered as follows:
1. The petition for certiorari in G.R. No. 167707 is GRANTED and the Court of Appeals Decision
in CA-G.R. CV No. 71118 REVERSED AND SET ASIDE.
2. The petition for certiorari in G.R. No. 173775 is DISMISSED for lack of merit.
SO ORDERED.
RUBEN T. REYES
Associate Justice
WE CONCUR:.
REYNATO S. PUNO
Chief Justice
Chairperson
LEONARDO A. QUISUMBING
Associate Justice
CONSUELO YNARES-SANTIAGO
Associate Justice
ANTONIO T. CARPIO
Associate Justice
MA. ALICIA AUSTRIA-MARTINEZ

Associate Justice
(On official leave)

RENATO C. CORONA*
Associate Justice
CONCHITA CARPIO MORALES

Associate Justice
ADOLFO S. AZCUNA
Associate Justice
DANTE O. TINGA
Associate Justice
MINITA V. CHICO-NAZARIO
Associate Justice
PRESBITERO J. VELASCO, JR.

Associate Justice
ANTONIO EDUARDO B.
NACHURA**
Associate Justice
TERESITA J. LEONARDO-DE
CASTRO
Associate Justice
ARTURO D. BRION
Associate Justice
C E R T I F I C AT I O N
Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above
Decision had been reached in consultation before the case was assigned to the writer of the opinion
of the Court.
REYNATO S. PUNO
Chief Justice
Footnotes
* On official leave per Special Order No. 520 dated September 19, 2008.
** No part. Justice Nachura participated in the present case as Solicitor General.
Rollo (G.R. No. 167707), pp. 37-43. CA-G.R. CV No. 71118, promulgated on December 9,
2004. Penned by Associate Justice Isaias P. Dicdican, with Associate Justices Sesinando E.
Villon and Ramon M. Bato, Jr., concurring.
1
Id. at 47-54; Annex "C." Spl. Civil Case No. 5403. Penned by Judge Niovady M. Marin,
RTC, Kalibo, Branch 5.
2
Rollo (G.R. No. 173775), pp. 101-114. Annex "F." Classifying Boracay Island Situated in
the Municipality of Malay, Province of Aklan Into Forestland (Protection Purposes) and Into
Agricultural Land (Alienable and Disposable) Pursuant to Presidential Decreee No. 705
(Revised Forestry Reform Code of the Philippines). Issued on May 22, 2006.
3
As of the year 2000.
Manoc-Manoc, Balabag, and Yapak.
Under Survey Plan No. NR-06-000001.
Rollo (G.R. No. 167707), p. 49.
Id. at 21-23; Annex "B." Declaring Certain Islands, Coves, and Peninsulas in the Philippines
as Tourist Zones and Marine Reserves Under the Administration and Control of the
Philippine Tourism Authority.
8
Id. at 24-27. Rules and Regulations Governing Activities at Boracay Island Tourist Zone.
10
Records, pp. 13-32; Annexes "A" to "A-18."
11
Issued on May 19, 1975.
12
Records, p. 148.
13
Id.
14
Rules of Court, Rule 129, Sec. 2.
15
Records, p. 148.
16
Id. at 177, 178.
17
Rollo (G.R. No. 167707), p. 54.
18
Id. at 51.
19
Id.; PTA Circular No. 3-82, Rule VIII, Sec. 1(3) states:
No trees in forested private lands may be cut without prior authority from the PTA. All
forested areas in public lands are declared forest reserves.
Sec. 87. If all the lands included in the proclamation of the President are not registered
under the Land Registration Act, the Solicitor-General, if requested to do so by the Secretary
20
of Agriculture and Natural Resources, shall proceed in accordance with the provisions of
section fifty-three of this Act.
Sec. 53. It shall be lawful for the Director of Lands, whenever in the opinion of the
President the public interests shall require it, to cause to be filed in the proper Court of First
Instance, through the Solicitor General or the officer acting in his stead, a petition against the
holder, claimant, possessor, or occupant of any land who shall not have voluntarily come in
under the provisions of this chapter or of the Land Registration Act, stating in substance that
the title of such holder, claimant, possessor, or occupant is open to discussion; or that the
boundaries of any such land which has not been brought into court as aforesaid are open to
question; or that it is advisable that the title to such land be settled and adjudicated, and
praying that the title to any such land or the boundaries thereof or the right to occupancy
thereof be settled and adjudicated. The judicial proceedings under this section shall be in
accordance with the laws on adjudication of title in cadastral proceedings.
21
22
Rollo (G.R. No. 167707), p. 51.
23
Id. at 211-121.
24
Id. at 42.
25
Id. at 45-46.
26
Supra note 3.
Owner of Waling-Waling Beach Resort and Chairman of the Board of Boracay Foundation,
Inc.
27
28
Owner of Willys Beach Resort.
29
Rollo (G.R. No. 173775), p. 20; Annex "A."
Petitioners in G.R. No. 173775 claim that they are also petitioners in the declaratory case
filed in November 1997 before the RTC in Kalibo, Aklan, docketed as Sp. Civil Case No.
5403 and now before this Court as G.R. No. 167707.
30
31
Rollo (G.R No. 173775), pp. 4-5.
32
Id. at 4.
33
Id. at 143.
34
Rollo (G.R. No. 167707), p. 26.
35
Rollo (G.R. No. 173775), pp. 280-281.
An Act Temporarily to Provide for the Administration of the Affairs of Civil Government in
the Philippine Islands, and for Other Purposes. Issued on July 1, 1902.
36
An Act to Amend and Compile the Laws Relative to Lands of the Public Domain.
Approved on December 1, 1936.
37
38
See note 8.
39
See note 3.
40
Constitution (1935), Art. XIII, Sec. 1.
41
Constitution (1973), Art. XIV, Sec. 10.
42
Bernas, S.J., The Intent of the 1986 Constitution Writers, 1995 ed., p. 830.
43
Constitution (1987), Art. XII, Sec. 3.
44
Id.
Zarate v. Director of Lands, G.R. No. 131501, July 14, 2004, 434 SCRA 322; Reyes v.
Court of Appeals,356 Phil. 606, 624 (1998).
45
46
Chavez v. Public Estates Authority, G.R. No. 133250, July 9, 2002, 384 SCRA 152.
Zarate v. Director of Lands, supra; Collado v. Court of Appeals, G.R. No. 107764, October
4, 2002, 390 SCRA 343; Director of Lands v. Intermediate Appellate Court, G.R. No. 73246,
March 2, 1993, 219 SCRA 339.
47
Republic v. Estonilo, G.R. No. 157306, November 25, 2005, 476 SCRA 265; Zarate v.
Director of Lands,supra.
48
De los Reyes v. Ramolete, G.R. No. L-47331, June 21, 1983, 122 SCRA 652,
citing Gonzaga v. Court of Appeals, G.R. No. L-27455, June 28, 1973, 51 SCRA 381.
49
50
Collado v. Court of Appeals, supra, citing Chavez v. Public Estates Authority, supra.
Id., citing separate opinion of then Justice Reynato S. Puno in Cruz v. Secretary of
Environment and Natural Resources, G.R. No. 135385, December 6, 2000, 347 SCRA
128, and Chavez v. Public Estates Authority, supra note 46.
51
52
Collado v. Court of Appeals, supra note 47.
53
Effective February 13, 1894.
54
De Aldecoa v. The Insular Government, 13 Phil. 159 (1909).
A valid title based upon adverse possession or a valid title based upon prescription.
Noblejas, A.H. and Noblejas, E.H., Registration of Land Titles and Deeds, 1986 ed., p. 39,
citing Cruz v. De Leon, 21 Phil. 199 (1912).
55
56
Ten (10) years, according to Archbishop of Manila v. Arnedo, 30 Phil. 593 (1915).
57
Noblejas, A.H. and Noblejas, E.H., Registration of Land Titles and Deeds, supra at 8.
Id. at 9; Director of Forest Administration v. Fernandez, G.R. Nos. 36827, 56622 & 70076,
December 10, 1990, 192 SCRA 121, 137.
58
59
Id. at 5-11.
60
See note 36.
Director of Forestry v. Villareal, G.R. No. L-32266, February 27, 1989, 170 SCRA 598,
601.
61
Noblejas, A.H. and Noblejas, E.H., Registration of Land Titles and Deeds, supra note 55, at
347.
62
63
The provisions relevant to the definition are:

Sec. 13. That the Government of the Philippine Islands, subject to the provisions of
this Act and except as herein provided, shall classify according to its agricultural
character and productiveness, and shall immediately make rules and regulations for
the lease, sale, or other disposition of the public lands other than timber or mineral
lands, but such rules and regulations shall not go into effect or have the force of law
until they have received the approval of the President, and when approved by the
President they shall be submitted by him to Congress at the beginning of the next
ensuing session thereof and unless disapproved or amended by Congress at said
session they shall at the close of such period have the force and effect of law in the
Philippine Islands: Provided, That a single homestead entry shall not exceed sixteen
hectares in extent.
Sec. 14. That the Government of the Philippine Islands is hereby authorized and
empowered to enact rules and regulations and to prescribe terms and conditions to
enable persons to perfect their title to public lands in said Islands, who, prior to the
transfer of sovereignty from Spain to the United States, had fulfilled all or some of the
conditions required by the Spanish laws and royal decrees of the Kingdom of Spain
for the acquisition of legal title thereto, yet failed to secure conveyance of title; and
the Philippine Commission is authorized to issue patents, without compensation, to
any native of said Islands, conveying title to any tract of land not more than sixteen
hectares in extent, which were public lands and had been actually occupied by such
native or his ancestors prior to and on the thirteenth of August, eighteen hundred and
ninety-eight.
Sec. 15. That the Government of the Philippine Islands is hereby authorized and
empowered, on such terms as it may prescribe, by general legislation, to provide for
the granting or sale and conveyance to actual occupants and settlers and other citizens
of said Islands such parts and portions of the public domain, other than timber and
mineral lands, of the United States in said Islands as it may deem wise, not exceeding
sixteen hectares to any one person and for the sale and conveyance of not more than
one thousand and twenty-four hectares to any corporation or association of persons:
Provided, That the grant or sale of such lands, whether the purchase price be paid at
once or in partial payments, shall be conditioned upon actual and continued
occupancy, improvement, and cultivation of the premises sold for a period of not less
than five years, during which time the purchaser or grantee can not alienate or
encumber said land or the title thereto; but such restriction shall not apply to transfers
of rights and title of inheritance under the laws for the distribution of the estates of
decedents.
64
10 Phil. 175 (1908).
65
Id. at 182.
66
Collado v. Court of Appeals, supra note 47.
67
Noblejas, A.H. and Noblejas, E.H., Registration of Land Titles and Deeds, supra note 55.
68
Sec. 54, par. 6.
Sec. 45(b); Public Estates Authority v. Court of Appeals, G.R. No. 112172, November 20,
2000, 345 SCRA 96; Director of Lands v. Buyco, G.R. No. 91189, November 27, 1992, 216
SCRA 78.
69
Collado v. Court of Appeals, supra note 47, see separate opinion of Justice Puno in Cruz v.
Secretary of Environment and Natural Resources, supra note 51, and Chavez v. Public
Estates Authority, supra note 46.
70
71
Sec. 2.
An Act to Amend Subsection (b) of Section Forty-Eight of Commonwealth Act Numbered

One Hundred Forty-One, Otherwise Known as the Public Land Act. Approved on June 22,
1957.
72
Extending the Period of Filing Applications for Administrative Legislation (Free Patent)
and Judicial Confirmation of Imperfect and Incomplete Titles to Alienable and Disposable
Lands in the Public Domain Under Chapter VII and Chapter VIII of Commonwealth Act No.
141, As Amended, For Eleven (11) Years Commencing January 1, 1977. Approved on
January 25, 1977.
73
74
Republic v. Doldol, G.R. No. 132963, September 10, 1998, 295 SCRA 359.
Discontinuance of the Spanish Mortgage System of Registration and of the Use of Spanish
Titles as Evidence in Land Registration Proceedings (Issued February 16, 1976).
75
Director of Forest Administration v. Fernandez, supra note 58, citing Director of Lands v.
Rivas, G.R. No. L-61539, February 14, 1986, 141 SCRA 329.
76
Lands which were not recorded under the Maura Law and were not yet covered by Torrens
titles.
77
Presidential Decree No. 1529, Preamble; Director of Lands v. Intermediate Appellate

Court, supra note 47.
78
79
Pea, N. and Pea, Jr., N., Registration of Land Titles and Deeds, 1988 ed., p. 9.
Republic v. Court of Appeals, G.R. No. 48227, August 21, 1991, 201 SCRA 1; Director of
Lands v. Court of Appeals, G.R. No. 83609, October 26, 1989, 178 SCRA 708.
80
Heirs of the Late Spouses Pedro S. Palanca and Soterranea Rafols Vda. De Palanca v.
Republic, G.R. No. 151312, August 30, 2006, 500 SCRA 209; Director of Lands v.
Intermediate Appellate Court, supra note 47, citing Director of Lands v. Aquino, G.R. No.
31688, December 17, 1990, 192 SCRA 296.
81
Chavez v. Public Estates Authority, supra note 46.
82
Republic v. Lao, G.R. No. 150413, July 1, 2003; 405 SCRA 291; Director of Lands v.
Intermediate Appellate Court, supra note 47, citing Director of Lands v. Aquino, supra.
83
84
Republic v. Lao, supra; Pagkatipunan v. Court of Appeals, 429 Phil. 377, 389-390 (2002).
85
Republic of the Philippines v. Muoz, G.R. No. 151910, October 15, 2007.
Republic, supra;Gutierrez Hermanos v. Court of Appeals, G.R. Nos. 54472-77, September
28, 1989, 178 SCRA 37.
86
87
Republic v. Naguiat, G.R. No. 134209, January 24, 2006, 479 SCRA 585.
88
40 Phil. 10 (1919).
89
Supra note 54.
90
Ankron v. Government of the Philippine Islands, supra at 16.
Republic, supra note 81.
91
92
Id. at 76.
93
Id. at 219-223.
94
Ankron v. Government of the Philippine Islands, supra note 88, at 16.
95
Id. at 15-16.
Act No. 2874, Sec. 8; Republic v. Court of Appeals, G.R. No. 155450, August 6,
2008; Republic v. Court of Appeals, G.R. No. 127245, January 30, 2001.
96
Bureau of Forestry v. Court of Appeals, G.R. No. L-37995, August 31, 1987, 153 SCRA
351, 357.
96-a
Republic, supra note 81.
97
98
The records do not show the manner in which title was issued to the Heirs of Ciriaco Tirol.
99
Records, p. 179.
100
79 Phil. 461 (1947).
101
Supra note 64.
102
Supra note 54.
103
Supra note 88.
104
Art. XIII, Sec. 1.
105
Krivenko v. Register of Deeds of Manila, supra note 100, at 468-469.
106
Act No. 926, Sec. 54, par. 6 states:

SEC. 54. The following described persons or their legal successors in right, occupying
lands in the Philippines, or claiming to own any such land or interest therein but
whose titles to such land have not been perfected may apply to the Court of Land
Registration of the Philippine Islands for confirmation of their claims and the issuance
of a certificate of title therefor to wit
xxxx
(6) All persons who by themselves or their predecessors in interest have been in the
open, continuous exclusive, and notorious possession and occupation of agricultural
public lands, as defined by said Act of Congress of July first, nineteen hundred and
two, under a bona fide claim of ownership except as against the Government, for a
period of ten years next preceding the taking effect of this act, except when prevented
by war, or force majeure, shall be conclusively presumed to have performed all the
conditions essential to a Government grant and to have received the same, and shall be
entitled to a certificate of title to such land under the provisions of this chapter.
107
Supra note 47.
107-a
G.R. No. 135385, December 6, 2000, 347 SCRA 128.
108
Collado v. Court of Appeals, id. at 356.
109
Records, p. 101; Annex "A."
110
Id. at 106; Exhibit "1-a."
111
Rollo (G.R. No. 173775), p. 5.
Constitution (1987), Art. XII, Sec. 3; Constitution (1973), Art. XIV, Sec. 10, as amended;
and Constitution (1935), Art. XIII, Sec. 1.
112
113
Republic v. Naguiat, supra note 87.
114
G.R. No. L-27873, November 29, 1983, 126 SCRA 69.
115
Heirs of Amunategui v. Director of Forestry, id. at 75.
Republic v. Court of Appeals, G.R. No. L-56948, September 30, 1987, 154 SCRA 476,
482-483.
116
117
Sec. 3 provides:
Establishment of or low-density human settlements in private lands, or subdivisions, if any,

subject to prior approval by the Ministry of Human Settlements, PTA and local building
officials; Provided, that no structures shall be constructed within 30 meters from the
shorelines.
118
Sec. 5 states:
Subsistence farming, in areas declared as alienable and disposable by the Bureau of Forest
Development.
119
Pars. 3-4.
SEC. 6. The President, upon recommendation of the Secretary of Agriculture and

Commerce (now the Secretary of the Department of Environment and Natural Resources),
shall from time to time classify lands of the public domain into
120
(a) Alienable or disposable,

(b) Timber, and
(c) Mineral lands,
And may at any time and in a like manner transfer such lands from one class to
another, for the purposes of their administration and disposition.
SEC. 7. For the purposes of administration and disposition of alienable or disposable
public lands, the President, upon recommendation by the Secretary of Agriculture and
Commerce (now the Secretary of the Department of Environment and Natural
Resources), shall from time to time declare what lands are open to disposition or
concession under this Act.
Director of Lands v. Intermediate Appellate Court, supra note 47; Manalo v. Intermediate
Appellate Court, G.R. No. 64753, April 26, 1989, 172 SCRA 795.
121
Republic v. Register of Deeds of Quezon, G.R. No. 73974, May 31, 1995, 244 SCRA
537; Director of Lands v. Intermediate Appellate Court, supra note 47.
122
Director of Lands v. Intermediate Appellate Court, supra note 47, citing Yngson v.
Secretary of Agriculture and Natural Resources, G.R. No. L-36847, July 20, 1983, 123
SCRA 441; Republic v. Court of Appeals, G.R. No. L-45202, September 11, 1980, 99 SCRA
742.
123
124
Supra note 81.
Republic, id. at 222-223.
125
Reconsideration of DOJ Opinion No. 169, s. 1993, on the DOJ affirmative stand on
whether the prohibition against the reclassification of forest lands applies to "unclassified
public forest."
126
127
Rollo (G.R. No. 173775), p. 139.
Del Rosario-Igtiben v. Republic, G.R. No. 158449, October 22, 2004, 441 SCRA
188; Republic v. Lao,supra note 83.
128
129
Public Land Act, Sec. 48(b).
130
Public Estates Authority v. Court of Appeals, supra note 69.
131
Commonwealth Act No. 141, Chapter IV.
132
Id., Chapter V.
House Bill No. 1109. Declaring Certain Parcels of the Public Domain Within Boracay
Island, Malay, Aklan as Agricultural Land Open to Disposition.
133
G.R. No. L-24796, June 28, 1968, 23 SCRA 1183, cited in Lepanto Consolidated Mining
Company v. Dumyung, G.R. Nos. L-31666-68, April 30, 1979, 89 SCRA 532.
134
135
Director of Forestry v. Muoz, id. at 1214.

SUPREME COURT
Manila
EN BANC
G.R. No. L-13298
November 19, 1918
CORNELIO RAMOS, petitioner-appellant,

vs.
THE DIRECTOR OF LANDS, objector-appellee.
Basilio Aromin for appellant.
Office of the Solicitor-General Paredes for appellee.
MALCOLM, J.:
This is an appeal by the applicant and appellant from a judgment of the Court of First Instance of
Nueva Ecija, denying the registration of the larger portion of parcel No. 1 (Exhibit A of the
petitioner), marked by the letters A, B, and C on the plan, Exhibit 1, of the Government.
One Restituto Romero y Ponce apparently gained possession of a considerable tract of land located
in the municipality of San Jose, Province of Nueva Ecija, in the year 1882. He took advantage of the
Royal Decree of February 13, 1894, to obtain a possessory information title to the land, registered as
such on February 8, 1896. Parcel No. 1, included within the limits of the possessory information
title of Restituto Romero, was sold in February, 1907, to Cornelio Ramos, the instant petitioner, and
his wife Ambrosia Salamanca.
Ramos instituted appropriate proceedings to have his title registered. Opposition was entered by the
Director of Lands on the ground that Ramos had not acquired a good title from the Spanish
government and by the Director of Forestry on the ground that the first parcel was forest land. The
trial court agreed with the objectors and excluded parcel No. 1 from registration. So much for the
facts.
As to the law, the principal argument of the Solicitor-General is based on the provisions of the
Spanish Mortgage Law and of the Royal Decree of February 13, 1894, commonly known as the
Maura Law. The Solicitor-General would emphasize that for land to come under the protective gis
of the Maura Law, it must have been shown that the land was cultivated for six years previously, and
that it was not land which pertained to the "zonas forestales." As proof that the land was, even as
long ago as the years 1894 to 1896, forestal and not agricultural in nature is the fact that there are
yet found thereon trees from 50 to 80 years of age.
We do not stop to decide this contention, although it might be possible, following the doctrine laid
down by the United States Supreme Court with reference to Mexican and Spanish grantes within the
United States, where some recital is claimed to be false, to say that the possessory information,
apparently having taken cognizance of the requisites for title, should not now be disturbed.
(Hancock vs. McKinney [1851], 7 Tex., 192; Hornsby and Rolandvs. United States [1869], 10 Wall.,
224.) It is sufficient, as will later appear, merely to notice that the predecessor in interest to the
petitioner at least held this tract of land under color of title.
Subsection 6 of section 54, of Act No. 926, entitled The Public Land Law, as amended by Act No.
1908, reads as follows:
6. All persons who by themselves or their predecessors and interest have been in the open,
continuous, exclusive, and notorious possession and occupation of agricultural public lands,
as defined by said Act of Congress of July first, nineteen hundred and two, under a bona fide
claim of ownership except as against the Government, for a period of ten years next
preceding the twenty-sixth day of July, nineteen hundred and four, except when prevented by
war or force majeure, shall be conclusively presumed to have performed all the conditions
essential to a government grant and to have received the same, and shall be entitled to a
certificate of title to such land under the provisions of this chapter.
There are two parts to the above quoted subsection which must be discussed. The first relates to the
open, continuous, exclusive, and notorious possession and occupation of what, for present purposes,
can be conceded to be agricultural public land, under a bona fide claim of ownership.
Actual possession of land consists in the manifestation of acts of dominion over it of such a nature
as a party would naturally exercise over his own property. Relative to actuality of possession, it is
admitted that the petitioner has cultivated only about one fourth of the entire tract. This is
graphically portrayed by Exhibit 1 of the Government, following:
The question at once arises: Is that actual occupancy of a part of the land described in the instrument
giving color of title sufficient to give title to the entire tract of land?
lawphil.net
The doctrine of constructive possession indicates the answer. The general rule is that the possession
and cultivation of a portion of a tract under claim of ownership of all is a constructive possession of
all, if the remainder is not in the adverse possession of another. (Barr vs. Gratz's Heirs [1819], 4
Wheat., 213; Ellicott vs. Pearl [1836], 10 Pet., 412; Smith vs. Gale [1892], 144 U. S., 509.) Of
course, there are a number of qualifications to the rule, one particularly relating to the size of the
tract in controversy with reference to the portion actually in possession of the claimant. It is here
only necessary to apply the general rule.
The claimant has color of title; he acted in good faith; and he has had open, peaceable, and notorious
possession of a portion of the property, sufficient to apprise the community and the world that the
land was for his enjoyment. (See arts. 446, 448, Civil Code.) Possession in the eyes of the law does
not mean that a man has to have his feet on every square meter of ground before it can be said that
he is in possession. Ramos and his predecessor in interest fulfilled the requirements of the law on
the supposition that he premises consisted of agricultural public land.
The second division of the law requires consideration of the term "agricultural public land." The law
affirms that the phrase is denied by the Act of Congress of July 1st, 1902, known as the Philippine
bill. Turning to the Philippine Bill, we find in sections 13 to 18 thereof that three classes of land are
mentioned. The first is variously denominated "public land" or "public domain," the second
"mineral land," and the third "timber land." Section 18 of the Act of Congress comes nearest to a
precise definition, when it makes the determination of whether the land is more valuable for
agricultural or for forest uses the test of its character.
Although these sections of the Philippine Bill have come before the courts on numerous occasions,
what was said in the case of Jones vs. Insular Government ([1906], 6 Phil., 122), is still true,
namely: "The meaning of these sections is not clear and it is difficult to give to them a construction
that will be entirely free from objection." In the case which gave most serious consideration to the
subject (Mapa vs. Insular Government [1908], 10 Phil., 175), it was found that there does exist in
the Act of Congress a definition of the phrase "agricultural public lands." It was said that the phrase
"agricultural public lands" as used in Act No. 926 means "those public lands acquired from Spain
which are not timber or mineral lands."
The idea would appear to be to determine, by exclusion, if the land is forestal or mineral in nature
and, if not so found, to consider it to be agricultural land. Here, again, Philippine law is not very
helpful. For instance, section 1820 of the Administrative Code of 1917 provides: "For the purposes
of this chapter, 'public forest' includes, except as otherwise specially indicated, all unreserved public
land, including nipa and mangrove swamps, and all forest reserves of whatever character." This
definition of "public forest," it will be noted, is merely "for the purposes of this chapter." A little
further on, section 1827 provides: "Lands in public forests, not including forest reserves, upon the
certification of the Director of Forestry that said lands are better adapted and more valuable for
agricultural than for forest purposes and not required by the public interests to be kept under forest,
shall be declared by the Department Head to be agricultural lands." With reference to the last
section, there is no certification of the Director of Forestry in the record, as to whether this land is
better adapted and more valuable for agricultural than for forest purposes.
The lexicographers define "forest" as "a large tract of land covered with a natural growth of trees
and underbrush; a large wood." The authorities say that he word "forest" has a significant, not an
insignificant meaning, and that it does not embrace land only partly woodland. It is a tract of land
covered with trees, usually of considerable extent. (Higgins vs. Long Island R. Co. [1908], 114 N. Y.
Supp., 262; People vs. Long Island R. Co. [1908], 110 N. Y. Supp., 512.)
The foresters say that no legal definition of "forest" is practicable or useful. B. H. Baden-Powell, in
his work on Forest Law of India, states as follows:
Every definition of a forest that can be framed for legal purposes will be found either to
exclude some cases to which the law ought to apply, or on the other hand, to include some
with which the law ought not to interfere. It may be necessary, for example, to take under the
law a tract of perfectly barren land which at present has neither trees, brushwood, nor grass
on it, but which in the course f time it is hoped will be "reboise;" but any definition wide
enough to take in all such lands, would also take in much that was not wanted. On the other
hand, the definition, if framed with reference to tree-growth, might (and indeed would be
almost sure to) include a garden, shrubbery, orchard, or vineyard, which it was not designed
to deal with.
B. E. Fernow, in his work on the Economics of Forestry, states as follows:
A forest in the sense in which we use the term, as an economic factor, is by no means a mere
collection of trees, but an organic whole in which all parts, although apparently
heterogeneous, jumbled together by accident as it were and apparently unrelated, bear a close
relation to each other and are as interdependent as any other beings and conditions in nature.
The Director of Forestry of the Philippine Islands has said:
During the time of the passage of the Act of Congress of July 1, 1902, this question of forest
and agricultural lands was beginning to receive some attention and it is clearly shown in
section 18 of the above mentioned Act; it leaves to the Bureau of Forestry the certification as
to what lands are for agricultural or forest uses. Although the Act states timber lands, the
Bureau has in its administration since the passage of this act construed this term to mean
forest lands in the sense of what was necessary to protect, for the public good; waste lands
without a tree have been declared more suitable for forestry in many instances in the past.
The term 'timber' as used in England and in the United States in the past has been applied to
wood suitable for construction purposes but with the increase in civilization and the
application of new methods every plant producing wood has some useful purpose and the
term timber lands is generally though of as synonymous with forest lands or lands producing
wood, or able to produce wood, if agricultural crops on the same land will not bring the
financial return that timber will or if the same land is needed for protection purposes.
xxx
xxx
xxx
The laws in the United States recognize the necessity of technical advice of duly appointed
boards and leave it in the hands of these boards to decide what lands are more valuable for
forestry purposes or for agricultural purposes.
In the Philippine Islands this policy is follows to as great an extent as allowable under the
law. In many cases, in the opinion of the Bureau of Forestry, lands without a single tree on
them are considered as true forest land. For instance, mountain sides which are too steep for
cultivation under ordinary practice and which, if cultivated, under ordinary practice would
destroy the big natural resource of the soil, by washing, is considered by this bureau as forest
land and in time would be reforested. Of course, examples exist in the Mountain Province
where steep hillsides have been terraced and intensive cultivation practiced but even then the
mountain people are very careful not to destroy forests or other vegetative cover which they
from experience have found protect their water supply. Certain chiefs have lodged protests
with the Government against other tribes on the opposite side of the mountain cultivated by
them, in order to prevent other tribes from cutting timber or destroy cover guarding their
source of water for irrigation.
Dr. M. S. Shaler, formerly Dean of the Lawrence Scientific School, remarked that if mankind
could not devise and enforce ways dealing with the earth, which will preserve this source of
like "we must look forward to the time, remote it may be, yet equally discernible, when out
kin having wasted its great inheritance will fade from the earth because of the ruin it has
accomplished."
The method employed by the bureau of Forestry in making inspection of lands, in order to
determine whether they are more adapted for agricultural or forest purposes by a technical
and duly trained personnel on the different phases of the conservation of natural resources, is
based upon a previously prepared set of questions in which the different characters of the
land under inspection are discussed, namely:
Slope of land: Level; moderate; steep; very steep.
Exposure: North; South; East; West.
Soil: Clay; sandy loam; sand; rocky; very rocky.
Character of soil cover: Cultivated, grass land, brush land, brush land and timber mixed,
dense forest.
If cultivated, state crops being grown and approximate number of hectares under cultivation.
(Indicate on sketch.)
For growth of what agricultural products is this land suitable?
State what portion of the tract is wooded, name of important timber species and estimate of
stand in cubic meters per hectare, diameter and percentage of each species.
If the land is covered with timber, state whether there is public land suitable for agriculture in
vicinity, which is not covered with timber.
Is this land more valuable for agricultural than for forest purposes? (State reasons in full.)
Is this land included or adjoining any proposed or established forest reserve or communal
forest? Description and ownership of improvements.
If the land is claimed under private ownership, give the name of the claimant, his place of
residence, and state briefly (if necessary on a separate sheet) the grounds upon which he
bases his claim.
When the inspection is made on a parcel of public land which has been applied for, the
corresponding certificate is forwarded to the Director of Lands; if it is made on a privately
claimed parcel for which the issuance of a title is requested from the Court of Land
Registration, and the inspection shows the land to be more adapted for forest purposes, then
the Director of Forestry requests the Attorney-General to file an opposition, sending him all
data collected during the inspection and offering him the forest officer as a witness.
It should be kept in mind that the lack of personnel of this Bureau, the limited time
intervening between the notice for the trial on an expediente of land and the day of the trial,
and the difficulties in communications as well as the distance of the land in question greatly
hinder the handling of this work.
In the case of lands claimed as private property, the Director of Forestry, by means of his
delegate the examining officer, submits before the court all evidence referring to the present
forest condition of the land, so that the court may compare them with the alleged right by the
claimant. Undoubtedly, when the claimant presents a title issued by the proper authority or
evidence of his right to the land showing that he complied with the requirements of the law,
the forest certificate does not affect him in the least as such land should not be considered as
a part of the public domain; but when the alleged right is merely that of possession, then the
public or private character of the parcel is open to discussion and this character should be
established not simply on the alleged right of the claimant but on the sylvical condition and
soil characteristics of the land, and by comparison between this area, or different previously
occupied areas, and those areas which still preserve their primitive character.
Either way we look at this question we encounter difficulty. Indubitably, there should be
conservation of the natural resources of the Philippines. The prodigality of the spendthrift who
squanders his substance for the pleasure of the fleeting moment must be restrained for the less
spectacular but surer policy which protects Nature's wealth for future generations. Such is the wise
stand of our Government as represented by the Director of Forestry who, with the Forester for the
Government of the United States, believes in "the control of nature's powers by man for his own
good." On the other hand, the presumption should be, in lieu of contrary proof, that land is
agricultural in nature. One very apparent reason is that it is for the good of the Philippine Islands to
have the large public domain come under private ownership. Such is the natural attitude of the
sagacious citizen.
If in this instance, we give judicial sanction to a private claim, let it be noted that the Government,
in the long run of cases, has its remedy. Forest reserves of public land can be established as provided
by law. When the claim of the citizen and the claim of the Government as to a particular piece of
property collide, if the Government desires to demonstrate that the land is in reality a forest, the
Director of Forestry should submit to the court convincing proof that the land is not more valuable
for agricultural than for forest purposes. Great consideration, it may be stated, should, and
undoubtedly will be, paid by the courts to the opinion of the technical expert who speaks with
authority on forestry matters. But a mere formal opposition on the part of the Attorney-General for
the Director of Forestry, unsupported by satisfactory evidence will not stop the courts from giving
title to the claimant.
We hold that the petitioner and appellant has proved a title to the entire tract of land for which he
asked registration, under the provisions of subsection 6, of section 54, of Act No. 926, as amended
by Act No. 1908, with reference to the Philippine Bill and the Royal Decree of February 13, 1894,
and his possessory information.
Judgment is reversed and the lower court shall register in the name of the applicant the entire tract in
parcel No. 1, as described in plan Exhibit A, without special finding as to costs. So ordered.
Arellano, C.J., Torres, Johnson, Street and Fisher, JJ., concur.

SUPREME COURT
Manila
EN BANC
G.R. No. L-14213
August 23, 1919
J. H. ANKRON, petitioner-appellee,
vs.
THE GOVERNMENT OF THE PHILIPPINE ISLANDS, objector-appellant.
Assistant
Attorney-General
P. J. Moore for appellee.
Lacson
for
appellant.
JOHNSON, J.:
This action was commenced in the Court of First Instance of the Province of Davao, Department of
Mindanao and Sulu. Its purpose was to have registered, under the Torrens system, a certain piece or
parcel of land situated, bounded and particularly described in the plan and technical description
attached to the complaint and made a part thereof.
The only opposition which was presented was on the part of the Director of Lands.
The oppositor [objector] alleged that the land in question was the property of the Government of the
United States under the control and administration of the Government of the Philippine Islands.
During the trial of the cause two witnesses only were presented by the petitioner. No proof whatever
was offered by the oppositor. After hearing and considering the evidence, the Honorable Francisco
Soriano, judge, reached the following conclusions of fact:
1. That the land sought to be registered consists of one parcel of land as marked and indicated on the
plan and technical description presented;
2. That all of said land, with the exception of a small part at the north, the exact description and
extension of which does not appear, has been cultivated and planted for more than forty-four years
prior to the date of this decision;
3. That said land was formerly occupied, cultivated and planted by Moros, Mansacas and others,
under a claim of ownership, and that they lived thereon and had their houses thereon, and that
portion of the land which was not planted or cultivated was used as pasture land whereon they
pastured their carabaos, cattle, and horses;
4. That all of said Moros and Mansacas sold, transferred and conveyed all their right, title and
interest in said land to the applicant, J. H. Ankron, some eleven years past, at which time all of the
said former owners moved o n to adjoining lands where they now reside;
5. That the possession under claim of ownership of the applicant and his predecessors in interest
was shown to have been open, notorious, actual, public and continuous for more than forty-four
years past, and that their claim was exclusive of any other right adverse to all other claims;
6. That the applicant now has some one hundred fifty (150) hills of hemp, some eight thousand
(8,000) cocoanut trees, a dwelling house, various laborers' quarters, store-building,
large camarin (storehouse of wood, a galvanized iron and other buildings and improvements on said
land.
Upon the foregoing facts the lower court ordered and decreed that said parcel of land be registered
in the name of the said applicant, J. H. Ankron, subject, however, to the right of the Government of
the Philippine Islands to open a road thereon in the manner and conditions mentioned in said
decision. The conditions mentioned with reference to the opening of the road, as found in said
decision, are that the applicant give his consent, which he has already done, to the opening of said
road which should be fifteen (15) meters wide and should follow approximately the line of the road
as it now exists subject to the subsequent survey to be made by the engineer of the province of
Davao.
From that decree the Director of Lands appealed to this court.
The appellant argues, first, that the applicant did not sufficiently identify the land in question. In
reply to that argument, the record shows that a detained and technical description of the land was
made a part of the record. The evidence shows that the boundaries of the land in question were
marked by monuments built of cement. Theoppositor neither presented the question of the failure of
proper identification of the land in the lower court nor presented any proof whatever to show that
said cement monuments did not exist.
The appellant, in his second assignment of error, contends that the appellant failed to prove his
possession and occupation in accordance with the provisions of paragraph 6 of section 54 of Act No.
926. The important prerequisites for registration of land imposed by said section 54, paragraph 6,
are (a) that the land shall beagricultural public land as defined by the Act of Congress of July 1,
1902; (b) that the petitioner, by himself or his predecessors in interest, shall have been in the open,
continuous, exclusive and notorious possession and occupation of the same under a bona fide claim
of ownership for a period of ten years next preceding the taking effect of said Act.
In the present case the applicant proved, and there was no effort to dispute said proof, that the land
in question was agricultural land and that he and his predecessors in interest had occupied the same
as owners in good faith for a period of more than forty years prior to the commencement of the
present action. No question is raised nor discussed by the appellant with reference to the right of the
Moros to acquire the absolute ownership and dominion of the land which they have occupied
openly, notoriously, peacefully and adversely for a long period of years. (Cario vs. Insular
Government, 7 Phil. Rep., 132 [212 U. S., 449].)
Accepting the undisputed proof, we are of the opinion that said paragraph 6 of section 54 of Act No.
926 has been fully complied with and that the petitioner, so far as the second assignment of error is
concerned, is entitled to have his land registered under the Torrens system.
Under the third assignment of error the appellant contends that portions of said land cannot be
registered in accordance with the existing Land Registration Law for the reason that they are
manglares. That question is not discussed in the present brief. The appellant, however., refers the
court to his discussion of that question in the case of Jocson vs. Director of Forestry (39 Phil. Rep.,
560). By reference to the argument in the brief in the case, it is found that the appellant relied upon
the provisions of section 3 of Act No. 1148 in relation with section 1820 of Act No. 2711 (second
Administrative Code). Section 3 of Act No. 1148 provides that "the public forests shall include all
unreserved lands covered with trees of whatever age." Said section 1820 (Act No. 2711) provides
that "for the purpose of this chapter 'public forest' includes, except as otherwise specially indicated,
all unreserved public land, including nipa and mangrove swamps, and all forest reserves of
whatever character."
In the case of Mapa vs. Insular Government (10 Phil. Rep., 175), which decision has been follows
in numerous other decision, the phrase "agricultural public lands" as defined by Act of Congress of
July 1, 1902, was held to mean "those public lands acquired from Spain which are neither mineral
nor timber lands" (forestry lands).
Paragraph 6 of section 54 of Act No. 926 only permits the registration, under the conditions therein
mentioned, of "public agricultural lands." It must follow, therefore, that the moment that it appears
that the land is not agricultural, the petition for registration must be denied. If the evidence shows
that it is public forestry land or public mineral land, the petition for registration must be denied.
Many definitions have been given for "agricultural," "forestry," and "mineral" lands. These
definitions are valuable so far as they establish general rules. In this relation we think the executive
department of the Government, through the Bureau of Forestry, may, and should, in view especially
of the provisions of section 4, 8, and 20 of Act No. 1148, define what shall be considered forestry
lands, to the end that the people of the Philippine Islands shall be guaranteed in "the future a
continued supply of valuable timber and other forest products." (Sec. 8, Act No. 1148.) If the
Bureau of Forestry should accurately and definitely define what lands are forestry, occupants in the
future would be greatly assisted in their proof and the courts would be greatly aided in determining
the question whether the particular land is forestry or other class of lands.
In the case of Jocson vs. Director of Forestry (supra), the Attorney-General admitted in effect that
whether the particular land in question belongs to one class or another is a question of fact. The
mere fact that a tract of land has trees upon it or has mineral within it is not of itself sufficient to
declare that one is forestry land and the other, mineral land. There must be some proof of the extent
and present or future value of the forestry and of the minerals. While, as we have just said, many
definitions have been given for "agriculture," "forestry," and "mineral" lands, and that in each case it
is a question of fact, we think it is safe to say that in order to be forestry or mineral land the proof
must show that it is more valuable for the forestry or the mineral which it contains than it is for
agricultural purposes. (Sec. 7, Act No. 1148.) It is not sufficient to show that there exists some trees
upon the land or that it bears some mineral. Land may be classified as forestry or mineral today,
and, by reason of the exhaustion of the timber or mineral, be classified as agricultural land
tomorrow. And vice-versa, by reason of the rapid growth of timber or the discovery of valuable
minerals, lands classified as agricultural today may be differently classified tomorrow. Each case
must be decided upon the proof in that particular case, having regard for its present or future value
for one or the other purposes. We believe, however, considering the fact that it is a matter of public
knowledge that a majority of the lands in the Philippine Islands are agricultural lands, that the courts
have a right to presume, in the absence of evidence to the contrary, that in each case the lands are
agricultural lands until the contrary is shown. Whatever the land involved in a particular land
registration case is forestry or mineral land must, therefore, be a matter of proof. Its superior value
for one purpose or the other is a question of fact to be settled by the proof in each particular case.
The fact that the land is a manglar [mangrove swamp] is not sufficient for the courts to decide
whether it is agricultural, forestry, or mineral land. It may perchance belong to one or the other of
said classes of land. The Government, in the first instance, under the provisions of Act No. 1148,
may, by reservation, decide for itself what portions of public land shall be considered forestry land,
unless private interests have intervened before such reservation is made. In the latter case, whether
the land is agricultural, forestry, or mineral, is a question of proof. Until private interests have
intervened, the Government, by virtue of the terms of said Act (No. 1148), may decide for itself
what portions of the "public domain" shall be set aside and reserved as forestry or mineral land.
(Ramos vs. Director of Lands (39 Phil. Rep., 175; Jocson vs. Director of Forestry, supra.)
In view of the foregoing we are of the opinion, and so order and decree, that the judgment of the
lower court should be and is hereby affirmed, with the condition that before the final certificate is
issued, an accurate survey be made of the lands to be occupied by the road above mentioned and
that a plan of the same be attached to the original plan upon which the petition herein is based. It is
so ordered, with costs.
Arellano, C.J., Torres, Araullo, Street, Malcolm and Moir, JJ., concur.

SUPREME COURT
Manila
EN BANC
G.R. No. 135385
December 6, 2000
ISAGANI CRUZ and CESAR EUROPA, petitioners,

vs.
SECRETARY OF ENVIRONMENT AND NATURAL RESOURCES, SECRETARY OF
BUDGET AND MANAGEMENT and CHAIRMAN and COMMISSIONERS OF THE
NATIONAL COMMISSION ON INDIGENOUS PEOPLES, respondents.
HON. JUAN M .FLAVIER, HON. PONCIANO BENNAGEN, BAYANI ASCARRAGA,
EDTAMI MANSAYANGAN, BASILIO WANDAG, EVELYN DUNUAN, YAOM TUGAS,
ALFREMO CARPIANO, LIBERATO A. GABIN, MATERNIDAD M. COLAS, NARCISA M.
DALUPINES, BAI KIRAM-CONNIE SATURNO, BAE MLOMO-BEATRIZ T. ABASALA,
DATU BALITUNGTUNG-ANTONIO D. LUMANDONG, DATU MANTUMUKAW
TEOFISTO SABASALES, DATU EDUAARDO BANDA, DATU JOEL UNAD, DATU
RAMON BAYAAN, TIMUAY JOSE ANOY, TIMUAY MACARIO D. SALACAO, TIMUAY
EDWIN B. ENDING, DATU SAHAMPONG MALANAW VI, DATU BEN PENDAO
CABIGON, BAI NANAPNAY-LIZA SAWAY, BAY INAY DAYA-MELINDA S. REYMUNDO,
BAI TINANGHAGA HELINITA T. PANGAN, DATU MAKAPUKAW ADOLINO L. SAWAY,
DATU MAUDAYAW-CRISPEN SAWAY, VICKY MAKAY, LOURDES D. AMOS, GILBERT
P. HOGGANG, TERESA GASPAR, MANUEL S. ONALAN, MIA GRACE L. GIRON,
ROSEMARIE G. PE, BENITO CARINO, JOSEPH JUDE CARANTES, LYNETTE
CARANTES-VIVAL, LANGLEY SEGUNDO, SATUR S. BUGNAY, CARLING DOMULOT,

ANDRES MENDIOGRIN, LEOPOLDO ABUGAN, VIRGILIO CAYETANO, CONCHITA G.
DESCAGA, LEVY ESTEVES, ODETTE G. ESTEVEZ, RODOLFO C. AGUILAR, MAURO
VALONES, PEPE H. ATONG, OFELIA T. DAVI, PERFECTO B. GUINOSAO, WALTER N.
TIMOL, MANUEL T. SELEN, OSCAR DALUNHAY, RICO O. SULATAN, RAFFY
MALINDA, ALFREDO ABILLANOS, JESSIE ANDILAB, MIRLANDO H.
MANGKULINTAS, SAMIE SATURNO, ROMEO A. LINDAHAY, ROEL S. MANSANGCAGAN, PAQUITO S. LIESES, FILIPE G. SAWAY, HERMINIA S. SAWAY, JULIUS S.
SAWAY, LEONARDA SAWAY, JIMMY UGYUB, SALVADOR TIONGSON, VENANCIO
APANG, MADION MALID, SUKIM MALID, NENENG MALID, MANGKATADONG
AUGUSTO DIANO, JOSEPHINE M. ALBESO, MORENO MALID, MARIO MANGCAL,
FELAY DIAMILING, SALOME P. SARZA, FELIPE P. BAGON, SAMMY SALNUNGAN,
ANTONIO D. EMBA, NORMA MAPANSAGONOS, ROMEO SALIGA, SR., JERSON P.
GERADA, RENATO T. BAGON, JR., SARING MASALONG, SOLEDAD M. GERARDA,
ELIZABETH L. MENDI, MORANTE S. TIWAN, DANILO M. MALUDAO, MINORS
MARICEL MALID, represented by her father CORNELIO MALID, MARCELINO M.
LADRA, represented by her father MONICO D. LADRA, JENNYLYN MALID, represented
by her father TONY MALID, ARIEL M. EVANGELISTA, represented by her mother LINAY
BALBUENA, EDWARD M. EMUY, SR., SUSAN BOLANIO, OND, PULA BATO B'LAAN
TRIBAL FARMER'S ASSOCIATION, INTER-PEOPLE'S EXCHANGE, INC. and GREEN
FORUM-WESTERN VISAYAS, intervenors.
COMMISSION ON HUMAN RIGHTS, intervenor.
IKALAHAN INDIGENOUS PEOPLE and HARIBON FOUNDATION FOR THE
CONSERVATION OF NATURAL RESOURCES, INC., intervenor.
RESOLUTION
PER CURIAM:
Petitioners Isagani Cruz and Cesar Europa brought this suit for prohibition and mandamus as
citizens and taxpayers, assailing the constitutionality of certain provisions of Republic Act No. 8371
(R.A. 8371), otherwise known as the Indigenous Peoples Rights Act of 1997 (IPRA), and its
Implementing Rules and Regulations (Implementing Rules).
In its resolution of September 29, 1998, the Court required respondents to comment. 1 In compliance,
respondents Chairperson and Commissioners of the National Commission on Indigenous Peoples
(NCIP), the government agency created under the IPRA to implement its provisions, filed on
October 13, 1998 their Comment to the Petition, in which they defend the constitutionality of the
IPRA and pray that the petition be dismissed for lack of merit.
On October 19, 1998, respondents Secretary of the Department of Environment and Natural
Resources (DENR) and Secretary of the Department of Budget and Management (DBM) filed
through the Solicitor General a consolidated Comment. The Solicitor General is of the view that the
IPRA is partly unconstitutional on the ground that it grants ownership over natural resources to
indigenous peoples and prays that the petition be granted in part.
On November 10, 1998, a group of intervenors, composed of Sen. Juan Flavier, one of the authors
of the IPRA, Mr. Ponciano Bennagen, a member of the 1986 Constitutional Commission, and the
leaders and members of 112 groups of indigenous peoples (Flavier, et. al), filed their Motion for
Leave to Intervene. They join the NCIP in defending the constitutionality of IPRA and praying for
the dismissal of the petition.
On March 22, 1999, the Commission on Human Rights (CHR) likewise filed a Motion to Intervene
and/or to Appear as Amicus Curiae. The CHR asserts that IPRA is an expression of the principle of
parens patriae and that the State has the responsibility to protect and guarantee the rights of those
who are at a serious disadvantage like indigenous peoples. For this reason it prays that the petition
be dismissed.
On March 23, 1999, another group, composed of the Ikalahan Indigenous People and the Haribon
Foundation for the Conservation of Natural Resources, Inc. (Haribon, et al.), filed a motion to
Intervene with attached Comment-in-Intervention. They agree with the NCIP and Flavier, et al. that
IPRA is consistent with the Constitution and pray that the petition for prohibition and mandamus be
dismissed.
The motions for intervention of the aforesaid groups and organizations were granted.
Oral arguments were heard on April 13, 1999. Thereafter, the parties and intervenors filed their
respective memoranda in which they reiterate the arguments adduced in their earlier pleadings and
during the hearing.
Petitioners assail the constitutionality of the following provisions of the IPRA and its Implementing
Rules on the ground that they amount to an unlawful deprivation of the States ownership over lands
of the public domain as well as minerals and other natural resources therein, in violation of the
regalian doctrine embodied in Section 2, Article XII of the Constitution:
"(1) Section 3(a) which defines the extent and coverage of ancestral domains, and Section 3(b)
which, in turn, defines ancestral lands;
"(2) Section 5, in relation to section 3(a), which provides that ancestral domains including
inalienable public lands, bodies of water, mineral and other resources found within ancestral
domains are private but community property of the indigenous peoples;
"(3) Section 6 in relation to section 3(a) and 3(b) which defines the composition of ancestral
domains and ancestral lands;
"(4) Section 7 which recognizes and enumerates the rights of the indigenous peoples over the
ancestral domains;
(5) Section 8 which recognizes and enumerates the rights of the indigenous peoples over the
ancestral lands;
"(6) Section 57 which provides for priority rights of the indigenous peoples in the harvesting,
extraction, development or exploration of minerals and other natural resources within the areas
claimed to be their ancestral domains, and the right to enter into agreements with nonindigenous
peoples for the development and utilization of natural resources therein for a period not exceeding
25 years, renewable for not more than 25 years; and
"(7) Section 58 which gives the indigenous peoples the responsibility to maintain, develop, protect
and conserve the ancestral domains and portions thereof which are found to be necessary for critical
watersheds, mangroves, wildlife sanctuaries, wilderness, protected areas, forest cover or
reforestation."2
Petitioners also content that, by providing for an all-encompassing definition of "ancestral domains"
and "ancestral lands" which might even include private lands found within said areas, Sections 3(a)
and 3(b) violate the rights of private landowners.3
In addition, petitioners question the provisions of the IPRA defining the powers and jurisdiction of
the NCIP and making customary law applicable to the settlement of disputes involving ancestral
domains and ancestral lands on the ground that these provisions violate the due process clause of the
Constitution.4
These provisions are:
"(1) sections 51 to 53 and 59 which detail the process of delineation and recognition of
ancestral domains and which vest on the NCIP the sole authority to delineate ancestral
domains and ancestral lands;
"(2) Section 52[i] which provides that upon certification by the NCIP that a particular area is
an ancestral domain and upon notification to the following officials, namely, the Secretary of
Environment and Natural Resources, Secretary of Interior and Local Governments, Secretary
of Justice and Commissioner of the National Development Corporation, the jurisdiction of
said officials over said area terminates;
"(3) Section 63 which provides the customary law, traditions and practices of indigenous
peoples shall be applied first with respect to property rights, claims of ownership, hereditary
succession and settlement of land disputes, and that any doubt or ambiguity in the
interpretation thereof shall be resolved in favor of the indigenous peoples;
"(4) Section 65 which states that customary laws and practices shall be used to resolve
disputes involving indigenous peoples; and
"(5) Section 66 which vests on the NCIP the jurisdiction over all claims and disputes
involving rights of the indigenous peoples."5
Finally, petitioners assail the validity of Rule VII, Part II, Section 1 of the NCIP Administrative
Order No. 1, series of 1998, which provides that "the administrative relationship of the NCIP to the
Office of the President is characterized as a lateral but autonomous relationship for purposes of
policy and program coordination." They contend that said Rule infringes upon the Presidents power
of control over executive departments under Section 17, Article VII of the Constitution. 6
Petitioners pray for the following:
"(1) A declaration that Sections 3, 5, 6, 7, 8, 52[I], 57, 58, 59, 63, 65 and 66 and other related
provisions of R.A. 8371 are unconstitutional and invalid;
"(2) The issuance of a writ of prohibition directing the Chairperson and Commissioners of
the NCIP to cease and desist from implementing the assailed provisions of R.A. 8371 and its
Implementing Rules;
"(3) The issuance of a writ of prohibition directing the Secretary of the Department of
Environment and Natural Resources to cease and desist from implementing Department of
Environment and Natural Resources Circular No. 2, series of 1998;
"(4) The issuance of a writ of prohibition directing the Secretary of Budget and Management
to cease and desist from disbursing public funds for the implementation of the assailed
provisions of R.A. 8371; and
"(5) The issuance of a writ of mandamus commanding the Secretary of Environment and
Natural Resources to comply with his duty of carrying out the States constitutional mandate
to control and supervise the exploration, development, utilization and conservation of
Philippine natural resources."7
After due deliberation on the petition, the members of the Court voted as follows:
Seven (7) voted to dismiss the petition. Justice Kapunan filed an opinion, which the Chief Justice
and Justices Bellosillo, Quisumbing, and Santiago join, sustaining the validity of the challenged
provisions of R.A. 8371. Justice Puno also filed a separate opinion sustaining all challenged
provisions of the law with the exception of Section 1, Part II, Rule III of NCIP Administrative Order
No. 1, series of 1998, the Rules and Regulations Implementing the IPRA, and Section 57 of the
IPRA which he contends should be interpreted as dealing with the large-scale exploitation of natural
resources and should be read in conjunction with Section 2, Article XII of the 1987 Constitution. On
the other hand, Justice Mendoza voted to dismiss the petition solely on the ground that it does not
raise a justiciable controversy and petitioners do not have standing to question the constitutionality
of R.A. 8371.
Seven (7) other members of the Court voted to grant the petition. Justice Panganiban filed a separate
opinion expressing the view that Sections 3 (a)(b), 5, 6, 7 (a)(b), 8, and related provisions of R.A.
8371 are unconstitutional. He reserves judgment on the constitutionality of Sections 58, 59, 65, and
66 of the law, which he believes must await the filing of specific cases by those whose rights may
have been violated by the IPRA. Justice Vitug also filed a separate opinion expressing the view that
Sections 3(a), 7, and 57 of R.A. 8371 are unconstitutional. Justices Melo, Pardo, Buena, GonzagaReyes, and De Leon join in the separate opinions of Justices Panganiban and Vitug.
As the votes were equally divided (7 to 7) and the necessary majority was not obtained, the case was
redeliberated upon. However, after redeliberation, the voting remained the same. Accordingly,
pursuant to Rule 56, Section 7 of the Rules of Civil Procedure, the petition is DISMISSED.
Attached hereto and made integral parts thereof are the separate opinions of Justices Puno, Vitug,
Kapunan, Mendoza, and Panganiban.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Quisumbing, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago,
and
De
Leon,
Jr.,
JJ.,
concur.
Puno, Vitug, Kapunan, Mendoza and Panganiban JJ., see separate opinion
Footnotes
1
Rollo, p. 114.
Petition, Rollo, pp. 16-23.
Id. at 23-25.
Section 1, Article III of the Constitution states: "No person shall be deprived of life, liberty
or property without due process of law, nor shall any person be denied the equal protection of
the laws."
4
Rollo, pp. 25-27.
Id. at 27-28.
Transcript of Stenographic Notes of the hearing held on April 13, 1999, pp. 5-6.
The Lawphil Project - Arellano Law Foundation
SEPARATE OPINION
PUNO, J.:
PRECIS
A classic essay on the utility of history was written in 1874 by Friedrich Nietzsche entitled "On the
Uses and Disadvantages of History for Life." Expounding on Nietzsche's essay, Judge Richard
Posner1 wrote:2
"Law is the most historically oriented, or if you like the most backward-looking, the most 'pastdependent,' of the professions. It venerates tradition, precedent, pedigree, ritual, custom, ancient
practices, ancient texts, archaic terminology, maturity, wisdom, seniority, gerontocracy, and
interpretation conceived of as a method of recovering history. It is suspicious of innovation,
discontinuities, 'paradigm shifts,' and the energy and brashness of youth. These ingrained attitudes
are obstacles to anyone who wants to re-orient law in a more pragmatic direction. But, by the same
token, pragmatic jurisprudence must come to terms with history."
When Congress enacted the Indigenous Peoples Rights Act (IPRA), it introduced radical concepts
into the Philippine legal system which appear to collide with settled constitutional and jural precepts
on state ownership of land and other natural resources. The sense and subtleties of this law cannot
be appreciated without considering its distinct sociology and the labyrinths of its history. This
Opinion attempts to interpret IPRA by discovering its soul shrouded by the mist of our history. After
all, the IPRA was enacted by Congress not only to fulfill the constitutional mandate of protecting
the indigenous cultural communities' right to their ancestral land but more importantly, to correct a
grave historical injustice to our indigenous people.
This Opinion discusses the following:
I. The Development of the Regalian Doctrine in the Philippine Legal System.
A. The Laws of the Indies
B. Valenton v. Murciano
C. The Public Land Acts and the Torrens System

D. The Philippine Constitutions
II. The Indigenous Peoples Rights Act (IPRA).
A. Indigenous Peoples
1. Indigenous Peoples: Their History
2. Their Concept of Land
III. The IPRA is a Novel Piece of Legislation.
A. Legislative History
IV. The Provisions of the IPRA Do Not Contravene the Constitution.
A. Ancestral domains and ancestral lands are the private property of indigenous peoples and
do not constitute part of the land of the public domain.
1. The right to ancestral domains and ancestral lands: how acquired
2. The concept of native title
(a) Cario v. Insular Government
(b) Indian Title to land
(c) Why the Cario doctrine is unique
3. The option of securing a torrens title to the ancestral land
B. The right of ownership and possession by the ICCs/IPs to their ancestral domains is a
limited form of ownership and does not include the right to alienate the same.
1. The indigenous concept of ownership and customary law
C. Sections 7 (a), 7 (b) and 57 of the IPRA do not violate the Regalian Doctrine enshrined in
Section 2, Article XII of the 1987 Constitution.
1. The rights of ICCs/IPs over their ancestral domains and lands
2. The right of ICCs/IPs to develop lands and natural resources within the ancestral
domains does not deprive the State of ownership over the natural resources, control
and supervision in their development and exploitation.
(a) Section 1, Part II, Rule III of the Implementing Rules goes beyond the
parameters of Section 7(a) of the law on ownership of ancestral domains and
is ultra vires.
(b) The small-scale utilization of natural resources in Section 7 (b) of the IPRA
is allowed under Paragraph 3, Section 2, Article XII of the 1987 Consitution.
(c) The large-scale utilization of natural resources in Section 57 of the IPRA
may be harmonized with Paragraphs 1 and 4, Section 2, Article XII of the 1987
Constitution.
V. The IPRA is a Recognition of Our Active Participation in the International Indigenous
Movement.
DISCUSSION
I. THE DEVELOPMENT OF THE REGALIAN DOCTRINE IN THE PHILIPPINE LEGAL
SYSTEM.
A. The Laws of the Indies
The capacity of the State to own or acquire property is the state's power of dominium.3 This was the
foundation for the early Spanish decrees embracing the feudal theory of jura regalia. The "Regalian
Doctrine" or jura regaliais a Western legal concept that was first introduced by the Spaniards
into the country through the Laws of the Indies and the Royal Cedulas. The Laws of the Indies,
i.e., more specifically, Law 14, Title 12, Book 4 of the Novisima Recopilacion de Leyes de las Indias,
set the policy of the Spanish Crown with respect to the Philippine Islands in the following manner:
"We, having acquired full sovereignty over the Indies, and all lands, territories, and possessions not
heretofore ceded away by our royal predecessors, or by us, or in our name, still pertaining to the
royal crown and patrimony, it is our will that all lands which are held without proper and true deeds
of grant be restored to us as they belong to us, in order that after reserving before all what to us or to
our viceroys, audiencias, and governors may seem necessary for public squares, ways, pastures, and
commons in those places which are peopled, taking into consideration not only their present
condition, but also their future and their probable increase, and after distributing to the natives what
may be necessary for tillage and pasturage, confirming them in what they now have and giving them
more if necessary, all the rest of said lands may remain free and unencumbered for us to dispose of
as we may wish.
We therefore order and command that all viceroys and presidents of pretorial courts designate at
such time as shall to them seem most expedient, a suitable period within which all possessors of
tracts, farms, plantations, and estates shall exhibit to them and to the court officers appointed by
them for this purpose, their title deeds thereto. And those who are in possession by virtue of proper
deeds and receipts, or by virtue of just prescriptive right shall be protected, and all the rest shall be
restored to us to be disposed of at our will."4
The Philippines passed to Spain by virtue of "discovery" and conquest. Consequently, all lands
became the exclusive patrimony and dominion of the Spanish Crown. The Spanish Government
took charge of distributing the lands by issuing royal grants and concessions to Spaniards, both
military and civilian.5 Private land titles could only be acquired from the government either by
purchase or by the various modes of land grant from the Crown.6
The Laws of the Indies were followed by the Ley Hipotecaria, or the Mortgage Law of 1893.7 The
Spanish Mortgage Law provided for the systematic registration of titles and deeds as well as
possessory claims. The law sought to register and tax lands pursuant to the Royal Decree of 1880.
The Royal Decree of 1894, or the "Maura Law," was partly an amendment of the Mortgage Law as
well as the Laws of the Indies, as already amended by previous orders and decrees. 8 This was the
last Spanish land law promulgated in the Philippines. It required the "adjustment" or registration of
all agricultural lands, otherwise the lands shall revert to the state.
Four years later, by the Treaty of Paris of December 10, 1898, Spain ceded to the government of
the United States all rights, interests and claims over the national territory of the Philippine Islands.
In 1903, the United States colonial government, through the Philippine Commission, passed Act
No. 926, the first Public Land Act.
B. Valenton v. Murciano
In 1904, under the American regime, this Court decided the case of Valenton v. Murciano.9
Valenton resolved the question of which is the better basis for ownership of land: long-time
occupation or paper title. Plaintiffs had entered into peaceful occupation of the subject land in 1860.
Defendant's predecessor-in-interest, on the other hand, purchased the land from the provincial
treasurer of Tarlac in 1892. The lower court ruled against the plaintiffs on the ground that they had
lost all rights to the land by not objecting to the administrative sale. Plaintiffs appealed the
judgment, asserting that their 30-year adverse possession, as an extraordinary period of prescription
in the Partidas and the Civil Code, had given them title to the land as against everyone, including
the State; and that the State, not owning the land, could not validly transmit it.
The Court, speaking through Justice Willard, decided the case on the basis of "those special laws
which from earliest time have regulated the disposition of the public lands in the colonies." 10 The
question posed by the Court was: "Did these special laws recognize any right of prescription as
against the State as to these lands; and if so, to what extent was it recognized?"
Prior to 1880, the Court said, there were no laws specifically providing for the disposition of land in
the Philippines. However, it was understood that in the absence of any special law to govern a
specific colony, the Laws of the Indies would be followed. Indeed, in the Royal Order of July 5,
1862, it was decreed that until regulations on the subject could be prepared, the authorities of the
Philippine Islands should follow strictly the Laws of the Indies, theOrdenanza of the Intendentes of
1786, and the Royal Cedula of 1754.11
Quoting the preamble of Law 14, Title 12, Book 4 of the Recopilacion de Leyes de las Indias, the
court interpreted it as follows:
"In the preamble of this law there is, as is seen, a distinct statement that all those lands belong to the
Crown which have not been granted by Philip, or in his name, or by the kings who preceded
him. This statement excludes the idea that there might be lands not so granted, that did not
belong to the king. It excludes the idea that the king was not still the owner of all ungranted
lands, because some private person had been in the adverse occupation of them. By the mandatory
part of the law all the occupants of the public lands are required to produce before the authorities
named, and within a time to be fixed by them, their title papers. And those who had good title or
showed prescription were to be protected in their holdings. It is apparent that it was not the intention
of the law that mere possession for a length of time should make the possessors the owners of the
land possessed by them without any action on the part of the authorities."12
The preamble stated that all those lands which had not been granted by Philip, or in his name, or by
the kings who preceded him, belonged to the Crown. 13 For those lands granted by the king, the
decree provided for a system of assignment of such lands. It also ordered that all possessors of
agricultural land should exhibit their title deed, otherwise, the land would be restored to the Crown. 14
The Royal Cedula of October 15, 1754 reinforced the Recopilacion when it ordered the Crown's
principal subdelegate to issue a general order directing the publication of the Crown's instructions:
"x x x to the end that any and all persons who, since the year 1700, and up to the date of the
promulgation and publication of said order, shall have occupied royal lands, whether or not x x x
cultivated or tenanted, may x x x appear and exhibit to said subdelegates the titles and patents by
virtue of which said lands are occupied. x x x. Said subdelegates will at the same time warn the
parties interested that in case of their failure to present their title deeds within the term designated,
without a just and valid reason therefor, they will be deprived of and evicted from their lands, and
they will be granted to others."15
On June 25, 1880, the Crown adopted regulations for the adjustment of lands "wrongfully occupied"
by private individuals in the Philippine Islands. Valenton construed these regulations together with
contemporaneous legislative and executive interpretations of the law, and concluded that plaintiffs'
case fared no better under the 1880 decree and other laws which followed it, than it did under the
earlier ones. Thus as a general doctrine, the Court stated:
"While the State has always recognized the right of the occupant to a deed if he proves a possession
for a sufficient length of time, yet it has always insisted that he must make that proof before the
proper administrative officers, and obtain from them his deed, and until he did that the State
remained the absolute owner."16
In conclusion, the Court ruled: "We hold that from 1860 to 1892 there was no law in force in these
Islands by which the plaintiffs could obtain the ownership of these lands by prescription, without
any action by the State."17Valenton had no rights other than those which accrued to mere possession.
Murciano, on the other hand, was deemed to be the owner of the land by virtue of the grant by the
provincial secretary. In effect, Valenton upheld the Spanish concept of state ownership of public
land.
As a fitting observation, the Court added that "[t]he policy pursued by the Spanish Government
from earliest times, requiring settlers on the public lands to obtain title deeds therefor from
the State, has been continued by the American Government in Act No. 926."18
C. The Public Land Acts and the Torrens System
Act No. 926, the first Public Land Act, was passed in pursuance of the provisions of the the
Philippine Bill of 1902. The law governed the disposition of lands of the public domain. It
prescribed rules and regulations for the homesteading, selling, and leasing of portions of the public
domain of the Philippine Islands, and prescribed the terms and conditions to enable persons to
perfect their titles to public lands in the Islands. It also provided for the "issuance of patents to
certain native settlers upon public lands," for the establishment of town sites and sale of lots therein,
for the completion of imperfect titles, and for the cancellation or confirmation of Spanish
concessions and grants in the Islands." In short, the Public Land Act operated on the assumption that
title to public lands in the Philippine Islands remained in the government;19 and that the
government's title to public land sprung from the Treaty of Paris and other subsequent treaties
between Spain and the United States. 20 The term "public land" referred to all lands of the public
domain whose title still remained in the government and are thrown open to private appropriation
and settlement,21 and excluded the patrimonial property of the government and the friar lands.22
Act No. 926 was superseded in 1919 by Act 2874, the second Public Land Act. This new law
was passed under the Jones Law. It was more comprehensive in scope but limited the exploitation of
agricultural lands to Filipinos and Americans and citizens of other countries which gave Filipinos
the same privileges.23 After the passage of the 1935 Constitution, Act 2874 was amended in 1936
by Commonwealth Act No. 141. Commonwealth Act No. 141 remains the present Public Land
Law and it is essentially the same as Act 2874. The main difference between the two relates to the
transitory provisions on the rights of American citizens and corporations during the Commonwealth
period at par with Filipino citizens and corporations.24
Grants of public land were brought under the operation of the Torrens system under Act 496,
or the Land Registration Law of 1903. Enacted by the Philippine Commission, Act 496 placed all
public and private lands in the Philippines under the Torrens system. The law is said to be almost a
verbatim copy of the Massachussetts Land Registration Act of 1898, 25 which, in turn, followed the
principles and procedure of the Torrens system of registration formulated by Sir Robert Torrens who
patterned it after the Merchant Shipping Acts in South Australia. The Torrens system requires that
the government issue an official certificate of title attesting to the fact that the person named is the
owner of the property described therein, subject to such liens and encumbrances as thereon noted or
the law warrants or reserves.26 The certificate of title is indefeasible and imprescriptible and all
claims to the parcel of land are quieted upon issuance of said certificate. This system highly
facilitates land conveyance and negotiation.27
D. The Philippine Constitutions
The Regalian doctrine was enshrined in the 1935 Constitution. One of the fixed and dominating
objectives of the 1935 Constitutional Convention was the nationalization and conservation of the
natural resources of the country.28 There was an overwhelming sentiment in the Convention in
favor of the principle of state ownership of natural resources and the adoption of the Regalian
doctrine.29 State ownership of natural resources was seen as a necessary starting point to secure
recognition of the state's power to control their disposition, exploitation, development, or
utilization.30 The delegates to the Constitutional Convention very well knew that the concept of State
ownership of land and natural resources was introduced by the Spaniards, however, they were not
certain whether it was continued and applied by the Americans. To remove all doubts, the
Convention approved the provision in the Constitution affirming the Regalian doctrine.31
Thus, the 1935 Constitution, in Section 1 of Article XIII on "Conservation and Utilization of
Natural Resources," reads as follows:
"Sec. 1. All agricultural, timber, and mineral lands of the public domain, waters, minerals,
coal, petroleum, and other mineral oils, all forces of potential energy, and other natural
resources of the Philippines belong to the State, and their disposition, exploitation,
development, or utilization shall be limited to citizens of the Philippines, or to corporations or
associations at least sixty per centum of the capital of which is owned by such citizens, subject
to any existing right, grant, lease, or concession at the time of the inauguration of the
Government established under this Constitution. Natural resources, with the exception of
public agricultural land, shall not be alienated, and no license, concession, or lease for the
exploitation, development, or utilization of any of the natural resources shall be granted for a period
exceeding twenty-five years, except as to water rights for irrigation, water supply, fisheries, or
industrial uses other than the development of water power, in which cases beneficial use may be the
measure and the limit of the grant."
The 1973 Constitution reiterated the Regalian doctrine in Section 8, Article XIV on the "National
Economy and the Patrimony of the Nation," to wit:
"Sec. 8. All lands of the public domain, waters, minerals, coal, petroleum and other mineral
oils, all forces of potential energy, fisheries, wildlife, and other natural resources of the
Philippines belong to the State. With the exception of agricultural, industrial or commercial,
residential, and resettlement lands of the public domain, natural resources shall not be
alienated, and no license, concession, or lease for the exploration, development, exploitation,
or utilization of any of the natural resources shall be granted for a period exceeding twentyfive years, renewable for not more than twenty-five years,except as to water rights for irrigation,
water supply, fisheries, or industrial uses other than the development of water power, in which cases
beneficial use may be the measure and the limit of the grant."
The 1987 Constitution reaffirmed the Regalian doctrine in Section 2 of Article XII on "National
Economy and Patrimony," to wit:
"Sec. 2. All lands of the public domain, waters, minerals, coal, petroleum, and other mineral
oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and
other natural resources are owned by the State. With the exception of agricultural lands, all
other natural resources shall not be alienated. The exploration, development and utilization of
natural resources shall be under the full control and supervision of the State. The State may
directly undertake such activities or it may enter into co-production, joint venture, or
production-sharing agreements with Filipino citizens, or corporations or associations at least
sixty per centum of whose capital is owned by such citizens.Such agreements may be for a period
not exceeding twenty-five years, renewable for not more than twenty-five years, and under such
terms and conditions as may be provided by law. In cases of water rights for irrigation, water supply,
fisheries, or industrial uses other than the development of water power, beneficial use may be the
measure and limit of the grant.
x x x."
Simply stated, all lands of the public domain as well as all natural resources enumerated therein,
whether on public or private land, belong to the State. It is this concept of State ownership that
petitioners claim is being violated by the IPRA.
II. THE INDIGENOUS PEOPLES RIGHTS ACT.
Republic Act No. 8371 is entitled "An Act to Recognize, Protect and Promote the Rights of
Indigenous Cultural Communities/ Indigenous Peoples, Creating a National Commission on
Indigenous Peoples, Establishing Implementing Mechanisms, Appropriating Funds Therefor, and
for Other Purposes." It is simply known as "The Indigenous Peoples Rights Act of 1997" or the
IPRA.
The IPRA recognizes the existence of the indigenous cultural communities or indigenous
peoples (ICCs/IPs) as a distinct sector in Philippine society. It grants these people the ownership
and possession of their ancestral domains and ancestral lands, and defines the extent of these
lands and domains. The ownership given is the indigenous concept of ownership under
customary law which traces its origin to native title.
Other rights are also granted the ICCs/IPs, and these are:
- the right to develop lands and natural resources;
- the right to stay in the territories;
- the right in case of displacement;

- the right to safe and clean air and water;
- the right to claim parts of reservations;
- the right to resolve conflict;32
- the right to ancestral lands which include
a. the right to transfer land/property to/among members of the same ICCs/IPs, subject
to customary laws and traditions of the community concerned;
b. the right to redemption for a period not exceeding 15 years from date of transfer, if
the transfer is to a non-member of the ICC/IP and is tainted by vitiated consent of the
ICC/IP, or if the transfer is for an unconscionable consideration.33
Within their ancestral domains and ancestral lands, the ICCs/IPs are given the right to selfgovernance and empowerment,34 social justice and human rights, 35 the right to preserve and protect
their culture, traditions, institutions and community intellectual rights, and the right to develop their
own sciences and technologies.36
To carry out the policies of the Act, the law created the National Commission on Indigenous Peoples
(NCIP). The NCIP is an independent agency under the Office of the President and is composed of
seven (7) Commissioners belonging to ICCs/IPs from each of the ethnographic areas- Region I and
the Cordilleras; Region II; the rest of Luzon; Island groups including Mindoro, Palawan, Romblon,
Panay and the rest of the Visayas; Northern and Western Mindanao; Southern and Eastern
Mindanao; and Central Mindanao.37 The NCIP took over the functions of the Office for Northern
Cultural Communities and the Office for Southern Cultural Communities created by former
President Corazon Aquino which were merged under a revitalized structure. 38
Disputes involving ICCs/IPs are to be resolved under customary laws and practices. When still
unresolved, the matter may be brought to the NCIP, which is granted quasi-judicial powers. 39 The
NCIP's decisions may be appealed to the Court of Appeals by a petition for review.
Any person who violates any of the provisions of the Act such as, but not limited to, unauthorized
and/or unlawful intrusion upon ancestral lands and domains shall be punished in accordance with
customary laws or imprisoned from 9 months to 12 years and/or fined from P100,000.00
to P500,000.00 and obliged to pay damages.40
A. Indigenous Peoples
The IPRA is a law dealing with a specific group of people, i.e., the Indigenous Cultural
Communities (ICCs) or the Indigenous Peoples (IPs). The term "ICCs" is used in the 1987
Constitution while that of "IPs" is the contemporary international language in the International
Labor Organization (ILO) Convention 16941 and the United Nations (UN) Draft Declaration on the
Rights of Indigenous Peoples.42
ICCs/IPs are defined by the IPRA as:
"Sec. 3 [h]. Indigenous Cultural Communities/ Indigenous Peoples- refer to a group of people or
homogeneous societies identified by self-ascription and ascription by others, who have continuously
lived as organized community on communally bounded and defined territory, and who have, under
claims of ownership since time immemorial, occupied, possessed and utilized such territories,
sharing common bonds of language, customs, traditions and other distinctive cultural traits, or who
have, through resistance to political, social and cultural inroads of colonization, non-indigenous
religions and cultures, became historically differentiated from the majority of Filipinos. ICCs/IPs
shall likewise include peoples who are regarded as indigenous on account of their descent from the
populations which inhabited the country, at the time of conquest or colonization, or at the time of
inroads of non-indigenous religions and cultures, or the establishment of present state boundaries,
who retain some or all of their own social, economic, cultural and political institutions, but who may
have been displaced from their traditional domains or who may have resettled outside their ancestral
domains."
Indigenous Cultural Communities or Indigenous Peoples refer to a group of people or
homogeneous societies who have continuously lived as an organized community on
communally bounded and defined territory. These groups of people have actually occupied,
possessed and utilized their territories under claim of ownership since time immemorial. They share
common bonds of language, customs, traditions and other distinctive cultural traits, or, they, by their
resistance to political, social and cultural inroads of colonization, non-indigenous religions and
cultures, became historically differentiated from the Filipino majority. ICCs/IPs also include
descendants of ICCs/IPs who inhabited the country at the time of conquest or colonization, who
retain some or all of their own social, economic, cultural and political institutions but who may have
been displaced from their traditional territories or who may have resettled outside their ancestral
domains.
1. Indigenous Peoples: Their History
Presently, Philippine indigenous peoples inhabit the interiors and mountains of Luzon, Mindanao,
Mindoro, Negros, Samar, Leyte, and the Palawan and Sulu group of islands. They are composed of
110 tribes and are as follows:
1. In the Cordillera Autonomous Region- Kankaney, Ibaloi, Bontoc, Tinggian or Itneg,
Ifugao, Kalinga, Yapayao, Aeta or Agta or Pugot, and Bago of Ilocos Norte and Pangasinan;
Ibanag of Isabela, Cagayan; Ilongot of Quirino and Nueva Vizcaya; Gaddang of Quirino,
Nueva Vizcaya, Itawis of Cagayan; Ivatan of Batanes, Aeta of Cagayan, Quirino and Isabela.
2. In Region III- Aetas.
3. In Region IV- Dumagats of Aurora, Rizal; Remontado of Aurora, Rizal, Quezon; Alangan
or Mangyan, Batangan, Buid or Buhid, Hanunuo and Iraya of Oriental and Occidental
Mindoro; Tadyawan of Occidental Mindoro; Cuyonon, Palawanon, Tagbanua and Tao't bato
of Palawan.
4. In Region V- Aeta of Camarines Norte and Camarines Sur; Aeta-Abiyan, Isarog, and
Kabihug of Camarines Norte; Agta, and Mayon of Camarines Sur; Itom of Albay, Cimaron of
Sorsogon; and the Pullon of Masbate and Camarines Sur.
5. In Region VI- Ati of Negros Occidental, Iloilo and Antique, Capiz; the Magahat of Negros
Occidental; the Corolano and Sulod.
6. In Region VII- Magahat of Negros Oriental and Eskaya of Bohol.
7. In Region IX- the Badjao numbering about 192,000 in Tawi-Tawi, Zamboanga del Sur; the
Kalibugan of Basilan, the Samal, Subanon and Yakat.
8. Region X- Numbering 1.6 million in Region X alone, the IPs are: the Banwaon, Bukidnon,
Matigsalog, Talaanding of Bukidnon; the Camiguin of Camiguin Island; the Higa-unon of
Agusan del Norte, Agusan del Sur, Bukidnon and Misamis Occidental; the Tigwahanon of
Agusan del Sur, Misamis Oriental and and Misamis Occidental, the Manobo of the Agusan
provinces, and the Umayamnon of Agusan and Bukidnon.
9. In Region XI- There are about 1,774,065 IPs in Region XI. They are tribes of the
Dibabaon, Mansaka of Davao del Norte; B'laan, Kalagan, Langilad, T'boli and Talaingod of
Davao del Sur; Mamamanua of Surigao del Sur; Mandaya of the Surigao provinces and
Davao Oriental; Manobo Blit of South Cotabato; the Mangguangon of Davao and South
Cotabato; Matigsalog of Davao del Norte and Del Sur; Tagakaolo, Tasaday and Ubo of South
Cotabato; and Bagobo of Davao del sur and South Cotabato.
10. In Region XII- Ilianen, Tiruray, Maguindanao, Maranao, Tausug, Yakan/Samal, and
Iranon.43
How these indigenous peoples came to live in the Philippines goes back to as early as 25,000 to
30,000 B.C.
Before the time of Western contact, the Philippine archipelago was peopled largely by the
Negritos, Indonesians and Malays.44 The strains from these groups eventually gave rise to common
cultural features which became the dominant influence in ethnic reformulation in the archipelago.
Influences from the Chinese and Indian civilizations in the third or fourth millenium B.C.
augmented these ethnic strains. Chinese economic and socio-cultural influences came by way of
Chinese porcelain, silk and traders. Indian influence found their way into the religious-cultural
aspect of pre-colonial society.45
The ancient Filipinos settled beside bodies of water. Hunting and food gathering became
supplementary activities as reliance on them was reduced by fishing and the cultivation of the
soil.46 From the hinterland, coastal, and riverine communities, our ancestors evolved an essentially
homogeneous culture, a basically common way of life where nature was a primary
factor. Community life throughout the archipelago was influenced by, and responded to, common
ecology. The generally benign tropical climate and the largely uniform flora and fauna favored
similarities, not differences.47 Life was essentially subsistence but not harsh.48
The early Filipinos had a culture that was basically Malayan in structure and form. They had
languages that traced their origin to the Austronesian parent-stock and used them not only as media
of daily communication but also as vehicles for the expression of their literary moods. 49 They
fashioned concepts and beliefs about the world that they could not see, but which they sensed to be
part of their lives.50 They had their own religion and religious beliefs. They believed in the
immortality of the soul and life after death. Their rituals were based on beliefs in a ranking deity
whom they called Bathalang Maykapal, and a host of other deities, in the environmental spirits and
in soul spirits. The early Filipinos adored the sun, the moon, the animals and birds, for they seemed
to consider the objects of Nature as something to be respected. They venerated almost any object
that was close to their daily life, indicating the importance of the relationship between man and the
object of nature.51
The unit of government was the "barangay," a term that derived its meaning from the Malay word
"balangay," meaning, a boat, which transported them to these shores. 52 The barangay was basically a
family-based community and consisted of thirty to one hundred families. Each barangay was
different and ruled by a chieftain called a "dato." It was the chieftain's duty to rule and govern his
subjects and promote their welfare and interests. A chieftain had wide powers for he exercised all
the functions of government. He was the executive, legislator and judge and was the supreme
commander in time of war.53
Laws were either customary or written. Customary laws were handed down orally from
generation to generation and constituted the bulk of the laws of the barangay. They were
preserved in songs and chants and in the memory of the elder persons in the community.54 The
written laws were those that the chieftain and his elders promulgated from time to time as the
necessity arose.55 The oldest known written body of laws was the Maragtas Code by Datu Sumakwel
at about 1250 A.D. Other old codes are the Muslim Code of Luwaran and the Principal Code of
Sulu.56 Whether customary or written, the laws dealt with various subjects, such as inheritance,
divorce, usury, loans, partnership, crime and punishment, property rights, family relations and
adoption. Whenever disputes arose, these were decided peacefully through a court composed by the
chieftain as "judge" and the barangay elders as "jury." Conflicts arising between subjects of different
barangays were resolved by arbitration in which a board composed of elders from neutral barangays
acted as arbiters.57
Baranganic society had a distinguishing feature: the absence of private property in land. The
chiefs merely administered the lands in the name of the barangay. The social order was an extension
of the family with chiefs embodying the higher unity of the community. Each individual, therefore,
participated in the community ownership of the soil and the instruments of production as a member
of the barangay.58 This ancient communalism was practiced in accordance with the concept of
mutual sharing of resources so that no individual, regardless of status, was without
sustenance. Ownership of land was non-existent or unimportant and the right of usufruct was
what regulated the development of lands.59 Marine resources and fishing grounds were likewise
free to all. Coastal communities depended for their economic welfare on the kind of fishing sharing
concept similar to those in land communities.60 Recognized leaders, such as the chieftains and
elders, by virtue of their positions of importance, enjoyed some economic privileges and benefits.
But their rights, related to either land and sea, were subject to their responsibility to protect the
communities from danger and to provide them with the leadership and means of survival. 61
Sometime in the 13th century, Islam was introduced to the archipelago in Maguindanao. The
Sultanate of Sulu was established and claimed jurisdiction over territorial areas represented today by
Tawi-tawi, Sulu, Palawan, Basilan and Zamboanga. Four ethnic groups were within this jurisdiction:
Sama, Tausug, Yakan and Subanon.62 The Sultanate of Maguindanao spread out from Cotabato
toward Maranao territory, now Lanao del Norte and Lanao del Sur.63
The Muslim societies evolved an Asiatic form of feudalism where land was still held in
common but was private in use. This is clearly indicated in the Muslim Code of Luwaran. The
Code contains a provision on the lease of cultivated lands. It, however, has no provision for the
acquisition, transfer, cession or sale of land.64
The societies encountered by Magellan and Legaspi therefore were primitive economies where
most production was geared to the use of the producers and to the fulfillment of kinship obligations.
They were not economies geared to exchange and profit. 65 Moreover, the family basis of barangay
membership as well as of leadership and governance worked to splinter the population of the islands
into numerous small and separate communities.66
When the Spaniards settled permanently in the Philippines in 1565, they found the Filipinos
living in barangay settlements scattered along water routes and river banks. One of the first
tasks imposed on the missionaries and the encomenderos was to collect all scattered Filipinos
together in a reduccion.67 As early as 1551, the Spanish government assumed an unvarying
solicitous attitude towards the natives.68 The Spaniards regarded it a sacred "duty to conscience and
humanity to civilize these less fortunate people living in the obscurity of ignorance" and to accord
them the "moral and material advantages" of community life and the "protection and vigilance
afforded them by the same laws."69
The Spanish missionaries were ordered to establish pueblos where the church and convent would be
constructed. All the new Christian converts were required to construct their houses around the
church and the unbaptized were invited to do the same. 70 With the reduccion, the Spaniards
attempted to "tame" the reluctant Filipinos through Christian indoctrination using the convento/casa
real/plaza complex as focal point. The reduccion, to the Spaniards, was a "civilizing" device to
make the Filipinos law-abiding citizens of the Spanish Crown, and in the long run, to make them
ultimately adopt Hispanic culture and civilization.71
All lands lost by the old barangays in the process of pueblo organization as well as all lands
not assigned to them and the pueblos, were now declared to be crown lands or realengas,
belonging to the Spanish king. It was from the realengas that land grants were made to nonFilipinos.72
The abrogation of the Filipinos' ancestral rights in land and the introduction of the concept of
public domain were the most immediate fundamental results of Spanish colonial theory and
law.73 The concept that the Spanish king was the owner of everything of value in the Indies or
colonies was imposed on the natives, and the natives were stripped of their ancestral rights to
land.74
Increasing their foothold in the Philippines, the Spanish colonialists, civil and religious, classified
the Filipinos according to their religious practices and beliefs, and divided them into three types .
First were the Indios, the Christianized Filipinos, who generally came from the lowland
populations. Second, were the Moros or the Muslim communities, and third, were the infieles or
the indigenous communities.75
The Indio was a product of the advent of Spanish culture. This class was favored by the Spaniards
and was allowed certain status although below the Spaniards. The Moros and infieles were regarded
as the lowest classes.76
The Moros and infieles resisted Spanish rule and Christianity. The Moros were driven from
Manila and the Visayas to Mindanao; while the infieles, to the hinterlands. The Spaniards did not
pursue them into the deep interior. The upland societies were naturally outside the immediate
concern of Spanish interest, and the cliffs and forests of the hinterlands were difficult and
inaccessible, allowing the infieles, in effect, relative security.77 Thus, the infieles, which were
peripheral to colonial administration, were not only able to preserve their own culture but also
thwarted the Christianization process, separating themselves from the newly evolved Christian
community.78Their own political, economic and social systems were kept constantly alive and
vibrant.
The pro-Christian or pro-Indio attitude of colonialism brought about a generally mutual feeling of
suspicion, fear, and hostility between the Christians on the one hand and the non-Christians on the
other. Colonialism tended to divide and rule an otherwise culturally and historically related
populace through a colonial system that exploited both the virtues and vices of the Filipinos. 79
President McKinley, in his instructions to the Philippine Commission of April 7, 1900,
addressed the existence of the infieles:
"In dealing with the uncivilized tribes of the Islands, the Commission should adopt the same
course followed by Congress in permitting the tribes of our North American Indians to
maintain their tribal organization and government, and under which many of those tribes are
now living in peace and contentment, surrounded by civilization to which they are unable or
unwilling to conform. Such tribal government should, however, be subjected to wise and firm
regulation; and, without undue or petty interference, constant and active effort should be exercised
to prevent barbarous practices and introduce civilized customs."80
Placed in an alternative of either letting the natives alone or guiding them in the path of civilization,
the American government chose "to adopt the latter measure as one more in accord with humanity
and with the national conscience."81
The Americans classified the Filipinos into two: the Christian Filipinos and the non-Christian
Filipinos. The term "non-Christian" referred not to religious belief, but to a 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."82
Like the Spaniards, the Americans pursued a policy of assimilation. In 1903, they passed Act
No. 253 creating the Bureau of Non-Christian Tribes (BNCT). Under the Department of the
Interior, the BNCT's primary task was to conduct ethnographic research among unhispanized
Filipinos, including those in Muslim Mindanao, with a "special view to determining the most
practicable means for bringing about their advancement in civilization and prosperity." The BNCT
was modeled after the bureau dealing with American Indians. The agency took a keen
anthropological interest in Philippine cultural minorities and produced a wealth of valuable
materials about them.83
The 1935 Constitution did not carry any policy on the non-Christian Filipinos. The raging
issue then was the conservation of the national patrimony for the Filipinos.
In 1957, the Philippine Congress passed R.A. No. 1888, an "Act to effectuate in a more rapid and
complete manner the economic, social, moral and political advancement of the non-Christian
Filipinos or national cultural minorities and to render real, complete, and permanent the integration
of all said national cultural minorities into the body politic, creating the Commission on National
Integration charged with said functions." The law called for a policy of integration of indigenous
peoples into the Philippine mainstream and for this purpose created theCommission on National
Integration (CNI).84 The CNI was given, more or less, the same task as the BNCT during the
American regime. The post-independence policy of integration was like the colonial policy of
assimilation understood in the context of a guardian-ward relationship.85
The policy of assimilation and integration did not yield the desired result. Like the Spaniards and
Americans, government attempts at integration met with fierce resistance. Since World War II,
a tidal wave of Christian settlers from the lowlands of Luzon and the Visayas swamped the
highlands and wide open spaces in Mindanao. 86Knowledge by the settlers of the Public Land Acts
and the Torrens system resulted in the titling of several ancestral lands in the settlers' names.
With government initiative and participation, this titling displaced several indigenous peoples
from their lands. Worse, these peoples were also displaced by projects undertaken by the national
government in the name of national development.87
It was in the 1973 Constitution that the State adopted the following provision:
"The State shall consider the customs, traditions, beliefs, and interests of national cultural
communities in the formulation and implementation of State policies."88
For the first time in Philippine history, the "non-Christian tribes" or the "cultural minorities"
were addressed by the highest law of the Republic, and they were referred to as "cultural
communities."More importantly this time, their "uncivilized" culture was given some recognition
and their "customs, traditions, beliefs and interests" were to be considered by the State in the
formulation and implementation of State policies.President Marcos abolished the CNI and
transferred its functions to the Presidential Adviser on National Minorities
(PANAMIN). The PANAMIN was tasked to integrate the ethnic groups that sought full integration
into the larger community, and at the same time "protect the rights of those who wish to preserve
their original lifeways beside the larger community." 89 In short, while still adopting the
integration policy, the decree recognized the right of tribal Filipinos to preserve their way of
life.90
In 1974, President Marcos promulgated P.D. No. 410, otherwise known as the Ancestral Lands
Decree. The decree provided for the issuance of land occupancy certificates to members of the
national cultural communities who were given up to 1984 to register their claims. 91 In 1979,
the Commission on the Settlement of Land Problems was created under E.O. No. 561 which
provided a mechanism for the expeditious resolution of land problems involving small settlers,
landowners, and tribal Filipinos.92
Despite the promulgation of these laws, from 1974 to the early 1980's, some 100,000 Kalingas and
Bontoks of the Cordillera region were displaced by the Chico River dam project of the National
Power Corporation (NPC). The Manobos of Bukidnon saw their land bulldozed by the Bukidnon
Sugar Industries Company (BUSCO). In Agusan del Sur, the National Development Company was
authorized by law in 1979 to take approximately 40,550 hectares of land that later became the NDCGuthrie plantation in Agusan del Sur. Most of the land was possessed by the Agusan
natives.93 Timber concessions, water projects, plantations, mining, and cattle ranching and other
projects of the national government led not only to the eviction of the indigenous peoples from their
land but also to the reduction and destruction of their natural environment.94
The Aquino government signified a total shift from the policy of integration to one of
preservation.Invoking her powers under the Freedom Constitution, President Aquino created
the Office of Muslim Affairs, Office for Northern Cultural Communities and the Office for
Southern Cultural Communities all under the Office of the President.95
The 1987 Constitution carries at least six (6) provisions which insure the right of tribal
Filipinos to preserve their way of life.96 This Constitution goes further than the 1973
Constitution by expressly guaranteeing the rights of tribal Filipinos to their ancestral domains
and ancestral lands. By recognizing their right to their ancestral lands and domains, the State
has effectively upheld their right to live in a culture distinctly their own.
2. Their Concept of Land
Indigenous peoples share distinctive traits that set them apart from the Filipino 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 and customs that are perceived as different from those of the
rest of the population.97 The kind of response the indigenous peoples chose to deal with colonial
threat worked well to their advantage by making it difficult 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 still 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 structure which emphasized division of labor and
distinction of functions, not status, was maintained. The cultural styles and forms of life portraying
the varieties of social courtesies and ecological adjustments were kept constantly vibrant. 98
Land is the central element of the indigenous peoples' existence. There is no traditional concept
of permanent, individual, land ownership. Among the Igorots, ownership of land more accurately
applies to 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 a member of the tribe ceases to work, he loses his claim of
ownership, and the land reverts to the beings of the spirit world who are its true and primary
owners. Under the concept of "trusteeship," the right to possess the land does not only belong to the
present generation but the future ones as well.99
Customary law on land rests on the traditional belief that no one owns the land except the gods
and spirits, and that those who work the land are its mere stewards. 100 Customary law has a strong
preference for communal ownership, which could either be ownership by a group of individuals
or families who are related by blood or by marriage,101 or ownership by residents of the same
locality who may not be related by blood or marriage. The system of communal ownership under
customary laws draws its meaning from the subsistence and highly collectivized mode of economic
production. The Kalingas, for instance, who are engaged in team occupation like hunting, foraging
for forest products, and swidden farming found it natural that forest areas, swidden farms, orchards,
pasture and burial grounds should be communally-owned.102 For the Kalingas, everybody has a
common right to a common economic base. Thus, as a rule, rights and obligations to the land are
shared in common.
Although highly bent on communal ownership, customary law on land also sanctions
individual ownership. The residential lots and terrace rice farms are governed by a limited system
of individual ownership. It is limited because while the individual owner has the right to use and
dispose of the property, he does not possess all the rights of an exclusive and full owner as defined
under our Civil Code.103 Under Kalinga customary law, the alienation of individually-owned land is
strongly discouraged except in marriage and succession and except to meet sudden financial needs
due to sickness, death in the family, or loss of crops. 104 Moreover, and to be alienated should first be
offered to a clan-member before any village-member can purchase it, and in no case may land be
sold to a non-member of the ili.105
Land titles do not exist in the indigenous peoples' economic and social system. The concept of
individual land ownership under the civil law is alien to them. Inherently colonial in origin,
our national land laws and governmental policies frown upon indigenous claims to ancestral
lands. Communal ownership is looked upon as inferior, if not inexistent.106
III. THE IPRA IS A NOVEL PIECE OF LEGISLATION.
A. The Legislative History of the IPRA
It was to address the centuries-old neglect of the Philippine indigenous peoples that the Tenth
Congress of the Philippines, by their joint efforts, passed and approved R.A. No. 8371, the
Indigenous Peoples Rights Act (IPRA) of 1997. The law was a consolidation of two Bills- Senate
Bill No. 1728 and House Bill No. 9125.
Principally sponsored by Senator Juan M. Flavier,107 Senate Bill No. 1728 was a consolidation of
four proposed measures referred to the Committees on Cultural Communities, Environment and
Natural Resources, Ways and Means, as well as Finance. It adopted almost en toto the
comprehensive version of Senate Bill Nos. 1476 and 1486 which was a result of six regional
consultations and one national consultation with indigenous peoples nationwide.108 At the
Second Regular Session of the Tenth Congress, Senator Flavier, in his sponsorship speech, gave a
background on the situation of indigenous peoples in the Philippines, to wit:
"The Indigenous Cultural Communities, including the Bangsa Moro, have long suffered from the
dominance and neglect of government controlled by the majority. Massive migration of their
Christian brothers to their homeland shrunk their territory and many of the tribal Filipinos were
pushed to the hinterlands. Resisting the intrusion, dispossessed of their ancestral land and with the
massive exploitation of their natural resources by the elite among the migrant population, they
became marginalized. And the government has been an indispensable party to this insidious
conspiracy against the Indigenous Cultural Communities (ICCs). It organized and supported the
resettlement of people to their ancestral land, which was massive during the Commonwealth and
early years of the Philippine Republic. Pursuant to the Regalian Doctrine first introduced to our
system by Spain through the Royal Decree of 13 February 1894 or the Maura Law, the government
passed laws to legitimize the wholesale landgrabbing and provide for easy titling or grant of lands to
migrant homesteaders within the traditional areas of the ICCs."109
Senator Flavier further declared:
"The IPs are the offsprings and heirs of the peoples who have first inhabited and cared for the land
long before any central government was established. Their ancestors had territories over which they
ruled themselves and related with other tribes. These territories- the land- include people, their
dwelling, the mountains, the water, the air, plants, forest and the animals. This is their environment
in its totality. Their existence as indigenous peoples is manifested in their own lives through
political, economic, socio-cultural and spiritual practices. The IPs culture is the living and
irrefutable proof to this.
Their survival depends on securing or acquiring land rights; asserting their rights to it; and
depending on it. Otherwise, IPs shall cease to exist as distinct peoples." 110
To recognize the rights of the indigenous peoples effectively, Senator Flavier proposed a bill based
on two postulates: (1) the concept of native title; and (2) the principle of parens patriae.
According to Senator Flavier, "[w]hile our legal tradition subscribes to the Regalian Doctrine
reinstated in Section 2, Article XII of the 1987 Constitution," our "decisional laws" and
jurisprudence passed by the State have "made exception to the doctrine." This exception was first
laid down in the case of Cario v. Insular Governmentwhere:
"x x x the court has recognized long occupancy of land by an indigenous member of the cultural
communities as one of private ownership, which, in legal concept, is termed "native title." This
ruling has not been overturned. In fact, it was affirmed in subsequent cases."111
Following Cario, the State passed Act No. 926, Act No. 2874, C.A. No. 141, P.D. 705, P.D. 410,
P.D. 1529, R.A. 6734 (the Organic Act for the Autonomous Region of Muslim Mindanao). These
laws, explicitly or implicitly, and liberally or restrictively, recognized "native title" or "private right"
and the existence of ancestral lands and domains. Despite the passage of these laws, however,
Senator Flavier continued:
"x x x the executive department of government since the American occupation has not implemented
the policy. In fact, it was more honored in its breach than in its observance, its wanton disregard
shown during the period unto the Commonwealth and the early years of the Philippine Republic
when government organized and supported massive resettlement of the people to the land of the
ICCs."
Senate Bill No. 1728 seeks to genuinely recognize the IPs right to own and possess their ancestral
land. The bill was prepared also under the principle of parens patriae inherent in the supreme power
of the State and deeply embedded in Philippine legal tradition. This principle mandates that persons
suffering from serious disadvantage or handicap, which places them in a position of actual
inequality in their relation or transaction with others, are entitled to the protection of the State.
Senate Bill No. 1728 was passed on Third Reading by twenty-one (21) Senators voting in favor
and none against, with no abstention.112
House Bill No. 9125 was sponsored by Rep. Zapata, Chairman of the Committee on Cultural
Communities. It was originally authored and subsequently presented and defended on the floor
by Rep. Gregorio Andolana of North Cotabato.113
Rep. Andolana's sponsorhip speech reads as follows:
"This Representation, as early as in the 8th Congress, filed a bill of similar implications that would
promote, recognize the rights of indigenous cultural communities within the framework of national
unity and development.
Apart from this, Mr. Speaker, is our obligation, the government's obligation to assure and ascertain
that these rights shall be well-preserved and the cultural traditions as well as the indigenous laws
that remained long before this Republic was established shall be preserved and promoted. There is a
need, Mr. Speaker, to look into these matters seriously and early approval of the substitute bill shall
bring into reality the aspirations, the hope and the dreams of more than 12 million Filipinos that
they be considered in the mainstream of the Philippine society as we fashion for the year 2000." 114
Rep. Andolana stressed that H.B. No. 9125 is based on the policy of preservation as mandated in the
Constitution. He also emphasized that the rights of IPs to their land was enunciated in Cario v.
Insular Government which recognized the fact that they had vested rights prior to the establishment
of the Spanish and American regimes.115
After exhaustive interpellation, House Bill No. 9125, and its corresponding amendments, was
approved on Second Reading with no objections.
IV. THE PROVISIONS OF THE IPRA DO NOT CONTRAVENE THE CONSTITUTION.
A. Ancestral Domains and Ancestral Lands are the Private Property of Indigenous Peoples
and Do Not Constitute Part of the Land of the Public Domain.
The IPRA grants to ICCs/IPs a distinct kind of ownership over ancestral domains and
ancestral lands.Ancestral lands are not the same as ancestral domains. These are defined in Section
3 [a] and [b] of the Indigenous Peoples Right Act, viz:
"Sec. 3 a) Ancestral Domains. - Subject to Section 56 hereof, refer to all areas generally belonging
to ICCs/IPs comprising lands, inland waters, coastal areas, and natural resources therein, held under
a claim of ownership, occupied or possessed by ICCs/IPs by themselves or through their ancestors,
communally or individually since time immemorial, continuously to the present except when
interrupted by war, force majeure or displacement by force, deceit, stealth or as a consequence of
government projects or any other voluntary dealings entered into by government and private
individuals/corporations, and which are necessary to ensure their economic, social and cultural
welfare. It shall include ancestral lands, forests, pasture, residential, agricultural, and other lands
individually owned whether alienable and disposable or otherwise, hunting grounds, burial grounds,
worship areas, bodies of water, mineral and other natural resources, and lands which may no longer
be exclusively occupied by ICCs/IPs but from which they traditionally had access to for their
subsistence and traditional activities, particularly the home ranges of ICCs/IPs who are still nomadic
and/or shifting cultivators;
b) Ancestral Lands.- Subject to Section 56 hereof, refers to land occupied, possessed and utilized by
individuals, families and clans who are members of the ICCs/IPs since time immemorial, by
themselves or through their predecessors-in-interest, under claims of individual or traditional group
ownership, continuously, to the present except when interrupted by war, force majeure or
displacement by force, deceit, stealth, or as a consequence of government projects and other
voluntary dealings entered into by government and private individuals/corporations, including, but
not limited to, residential lots, rice terraces or paddies, private forests, swidden farms and tree lots."
Ancestral domains are all areas belonging to ICCs/IPs held under a claim of ownership, occupied
or possessed by ICCs/IPs by themselves or through their ancestors, communally or individually
since time immemorial, continuously until the present, except when interrupted by war, force
majeure or displacement by force, deceit, stealth or as a consequence of government projects or any
other voluntary dealings with government and/or private individuals or corporations. Ancestral
domains comprise lands, inland waters, coastal areas, and natural resources therein and
includes ancestral lands, forests, pasture, residential, agricultural, and other lands
individually owned whether alienable or not, hunting grounds, burial grounds, worship areas,
bodies of water, mineral and other natural resources. They also include lands which may no
longer be exclusively occupied by ICCs/IPs but from which they traditionally had access to for their
subsistence and traditional activities, particularly the home ranges of ICCs/IPs who are still nomadic
and/or shifting cultivators.116
Ancestral lands are lands held by the ICCs/IPs under the same conditions as ancestral domains
except that these are limited to lands and that these lands are not merely occupied and possessed but
are also utilized by the ICCs/IPs under claims of individual or traditional group ownership. These
lands include but are not limited to residential lots, rice terraces or paddies, private forests, swidden
farms and tree lots.117
The procedures for claiming ancestral domains and lands are similar to the procedures embodied in
Department Administrative Order (DAO) No. 2, series of 1993, signed by then Secretary of the
Department of Environment and Natural Resources (DENR) Angel Alcala. 118 DAO No. 2 allowed
the delineation of ancestral domains by special task forces and ensured the issuance of Certificates
of Ancestral Land Claims (CALC's) and Certificates of Ancestral Domain Claims (CADC's) to IPs.
The identification and delineation of these ancestral domains and lands is a power conferred by the
IPRA on the National Commission on Indigenous Peoples (NCIP). 119 The guiding principle in
identification and delineation is self-delineation. 120 This means that the ICCs/IPs have a decisive role
in determining the boundaries of their domains and in all the activities pertinent thereto. 121
The procedure for the delineation and recognition of ancestral domains is set forth in Sections 51
and 52 of the IPRA. The identification, delineation and certification of ancestral lands is in Section
53 of said law.
Upon due application and compliance with the procedure provided under the law and upon finding
by the NCIP that the application is meritorious, the NCIP shall issue a Certificate of Ancestral
Domain Title (CADT) in the name of the community concerned. 122 The allocation of lands
within the ancestral domain to any individual or indigenous corporate (family or clan) claimants is
left to the ICCs/IPs concerned to decide in accordance with customs and traditions. 123 With respect
to ancestral lands outside the ancestral domain, the NCIP issues a Certificate of Ancestral Land
Title (CALT).124
CADT's and CALT's issued under the IPRA shall be registered by the NCIP before the Register of
Deeds in the place where the property is situated.125
(1) Right to Ancestral Domains and Ancestral Lands: How Acquired
The rights of the ICCs/IPs to their ancestral domains and ancestral lands may be acquired in two
modes: (1) bynative title over both ancestral lands and domains; or (2) by torrens title under
the Public Land Act and the Land Registration Act with respect to ancestral lands only.
(2) The Concept of Native Title
Native title is defined as:
"Sec. 3 [l]. Native Title- refers to pre-conquest rights to lands and domains which, as far back as
memory reaches, have been held under a claim of private ownership by ICCs/IPs, have never been
public lands and are thusindisputably presumed to have been held that way since before the
Spanish Conquest."126
Native title refers to ICCs/IPs' preconquest rights to lands and domains held under a claim of
private ownership as far back as memory reaches. These lands are deemed never to have been
public lands and are indisputably presumed to have been held that way since before the Spanish
Conquest. The rights of ICCs/IPs to their ancestraldomains (which also include ancestral lands) by
virtue of native title shall be recognized and respected. 127Formal recognition, when solicited by
ICCs/IPs concerned, shall be embodied in a Certificate of Ancestral Domain Title (CADT), which
shall recognize the title of the concerned ICCs/IPs over the territories identified and delineated. 128
Like a torrens title, a CADT is evidence of private ownership of land by native title. Native title,
however, is a right of private ownership peculiarly granted to ICCs/IPs over their ancestral lands
and domains. The IPRA categorically declares ancestral lands and domains held by native title
as never to have been public land. Domains and lands held under native title are, therefore,
indisputably presumed to have never been public lands and are private.
(a) Cario v. Insular Government129
The concept of native title in the IPRA was taken from the 1909 case of Cario v. Insular
Government.130Cario firmly established a concept of private land title that existed irrespective of
any royal grant from the State.
In 1903, Don Mateo Cario, an Ibaloi, sought to register with the land registration court 146
hectares of land in Baguio Municipality, Benguet Province. He claimed that this land had been
possessed and occupied by his ancestors since time immemorial; that his grandfather built fences
around the property for the holding of cattle and that his father cultivated some parts of the land.
Cario inherited the land in accordance with Igorot custom. He tried to have the land adjusted under
the Spanish land laws, but no document issued from the Spanish Crown. 131In 1901, Cario obtained
a possessory title to the land under the Spanish Mortgage Law.132 The North American colonial
government, however, ignored his possessory title and built a public road on the land prompting him
to seek a Torrens title to his property in the land registration court. While his petition was pending, a
U.S. military reservation133 was proclaimed over his land and, shortly thereafter, a military
detachment was detailed on the property with orders to keep cattle and trespassers, including
Cario, off the land.134
In 1904, the land registration court granted Cario's application for absolute ownership to the land.
Both the Government of the Philippine Islands and the U.S. Government appealed to the C.F.I. of
Benguet which reversed the land registration court and dismissed Cario's application. The
Philippine Supreme Court135 affirmed the C.F.I. by applying the Valenton ruling. Cario took the
case to the U.S. Supreme Court.136 On one hand, the Philippine government invoked the Regalian
doctrine and contended that Cario failed to comply with the provisions of the Royal Decree of June
25, 1880, which required registration of land claims within a limited period of time. Cario, on the
other, asserted that he was the absolute owner of the land jure gentium, and that the land never
formed part of the public domain.
In a unanimous decision written by Justice Oliver Wendell Holmes, the U.S. Supreme Court held:
"It is true that Spain, in its earlier decrees, embodied the universal feudal theory that all lands were
held from the Crown, and perhaps the general attitude of conquering nations toward people not
recognized as entitled to the treatment accorded to those in the same zone of civilization with
themselves. It is true, also, that in legal theory, sovereignty is absolute, and that, as against foreign
nations, the United States may assert, as Spain asserted, absolute power. But it does not follow that,
as against the inhabitants of the Philippines, the United States asserts that Spain had such power.
When theory is left on one side, sovereignty is a question of strength, and may vary in degree. How
far a new sovereign shall insist upon the theoretical relation of the subjects to the head in the past,
and how far it shall recognize actual facts, are matters for it to decide." 137
The U.S. Supreme Court noted that it need not accept Spanish doctrines. The choice was with the
new colonizer. Ultimately, the matter had to be decided under U.S. law.
The Cario decision largely rested on the North American constitutionalist's concept of "due
process" as well as the pronounced policy "to do justice to the natives." 138 It was based on the strong
mandate extended to the Islands via the Philippine Bill of 1902 that "No law shall be enacted in said
islands which shall deprive any person of life, liberty, or property without due process of law, or
deny to any person therein the equal protection of the laws." The court declared:
"The acquisition of the Philippines was not like the settlement of the white race in the United States.
Whatever consideration may have been shown to the North American Indians, the dominant purpose
of the whites in America was to occupy land. It is obvious that, however stated, the reason for our
taking over the Philippines was different. No one, we suppose, would deny that, so far as consistent
with paramount necessities, our first object in the internal administration of the islands is to do
justice to the natives, not to exploit their country for private gain. By the Organic Act of July 1,
1902, chapter 1369, section 12 (32 Statutes at Large, 691), all the property and rights acquired there
by the United States are to be administered 'for the benefit of the inhabitants thereof.' It is
reasonable to suppose that the attitude thus assumed by the United States with regard to what was
unquestionably its own is also its attitude in deciding what it will claim for its own. The same
statute made a bill of rights, embodying the safeguards of the Constitution, and, like the
Constitution, extends those safeguards to all. It provides that 'no law shall be enacted in said islands
which shall deprive any person of life, liberty, or property without due process of law, or deny to
any person therein the equal protection of the laws.' In the light of the declaration that we have
quoted from section 12, it is hard to believe that the United States was ready to declare in the next
breath that "any person" did not embrace the inhabitants of Benguet, or that it meant by "property"
only that which had become such by ceremonies of which presumably a large part of the inhabitants
never had heard, and that it proposed to treat as public land what they, by native custom and by long
association,- of the profoundest factors in human thought,- regarded as their own."139
The Court went further:
"Every presumption is and ought to be against the government in a case like the present. It might,
perhaps, be proper and sufficient to say that when, as far back as testimony or memory goes,
the land has been held by individuals under a claim of private ownership, it will be presumed
to have been held in the same way from before the Spanish conquest, and never to have been
public land. Certainly in a case like this, if there is doubt or ambiguity in the Spanish law, we ought
to give the applicant the benefit of the doubt."140
The court thus laid down the presumption of a certain title held (1) as far back as testimony or
memory went, and (2) under a claim of private ownership. Land held by this title is presumed to
"never have been public land."
Against this presumption, the U.S. Supreme Court analyzed the Spanish decrees upheld in the 1904
decision ofValenton v. Murciano. The U.S. Supreme Court found no proof that the Spanish decrees
did not honor native title. On the contrary, the decrees discussed in Valenton appeared to recognize
that the natives owned some land, irrespective of any royal grant. The Regalian doctrine declared in
the preamble of the Recopilacion was all "theory and discourse" and it was observed that titles were
admitted to exist beyond the powers of the Crown, viz:
"If the applicant's case is to be tried by the law of Spain, we do not discover such clear proof
that it was bad by that law as to satisfy us that he does not own the land. To begin with, the
older decrees and laws cited by the counsel for the plaintiff in error seem to indicate pretty
clearly that the natives were recognized as owning some lands, irrespective of any royal
grant. In other words, Spain did not assume to convert all the native inhabitants of the Philippines
into trespassers or even into tenants at will. For instance, Book 4, title 12, Law 14 of the
the Recopilacion de Leyes de las Indias, cited for a contrary conclusion in Valenton v. Murciano, 3
Philippine 537, while it commands viceroys and others, when it seems proper, to call for the
exhibition of grants, directs them to confirm those who hold by good grants or justa prescripcion. It
is true that it begins by the characteristic assertion of feudal overlordship and the origin of all
titles in the King or his predecessors. That was theory and discourse. The fact was that titles
were admitted to exist that owed nothing to the powers of Spain beyond this recognition in
their books." (Emphasis supplied).141
The court further stated that the Spanish "adjustment" proceedings never held sway over
unconquered territories. The wording of the Spanish laws were not framed in a manner as to convey
to the natives that failure to register what to them has always been their own would mean loss of
such land. The registration requirement was "not to confer title, but simply to establish it;" it was
"not calculated to convey to the mind of an Igorot chief the notion that ancient family possessions
were in danger, if he had read every word of it."
By recognizing this kind of title, the court clearly repudiated the doctrine of Valenton. It was frank
enough, however, to admit the possibility that the applicant might have been deprived of his land
under Spanish law because of the inherent ambiguity of the decrees and concomitantly, the various
interpretations which may be given them. But precisely because of the ambiguity and of the
strong "due process mandate" of the Constitution, the court validated this kind of title. 142 This
title was sufficient, even without government administrative action, and entitled the holder to a
Torrens certificate. Justice Holmes explained:
"It will be perceived that the rights of the applicant under the Spanish law present a problem not
without difficulties for courts of a legal tradition. We have deemed it proper on that account to
notice the possible effect of the change of sovereignty and the act of Congress establishing the
fundamental principles now to be observed. Upon a consideration of the whole case we are of the
opinion that law and justice require that the applicant should be granted what he seeks, and should
not be deprived of what, by the practice and belief of those among whom he lived, was his property,
through a refined interpretation of an almost forgotten law of Spain."143
Thus, the court ruled in favor of Cario and ordered the registration of the 148 hectares in
Baguio Municipality in his name.144
Examining Cario closer, the U.S. Supreme Court did not categorically refer to the title it upheld as
"native title." It simply said:
"The Province of Benguet was inhabited by a tribe that the Solicitor-General, in his argument,
characterized as a savage tribe that never was brought under the civil or military government
of the Spanish Crown. It seems probable, if not certain, that the Spanish officials would not
have granted to anyone in that province the registration to which formerly the plaintiff was
entitled by the Spanish Laws, and which would have made his title beyond question
good. Whatever may have been the technical position of Spain it does not follow that, in the view of
the United States, he had lost all rights and was a mere trespasser when the present government
seized his land. The argument to that effect seems to amount to a denial of native titles through an
important part of the Island of Luzon, at least, for the want of ceremonies which the Spaniards
would not have permitted and had not the power to enforce."145
This is the only instance when Justice Holmes used the term "native title" in the entire length of
the Cariodecision. It is observed that the widespread use of the term "native title" may be traced to
Professor Owen James 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.146 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. 147 He discussed Carioextensively
and used the term "native title" to refer to Cario's title as discussed and upheld by the U.S.
Supreme Court in said case.
(b) Indian Title
In a footnote in the same article, Professor Lynch stated that the concept of "native title" as defined
by Justice Holmes in Cario "is conceptually similar to "aboriginal title" of the American
Indians.148 This is not surprising, according to Prof. Lynch, considering that during the American
regime, government policy towards ICCs/IPs was consistently made in reference to native
Americans.149 This was clearly demonstrated in the case of Rubi v. Provincial Board of Mindoro.150
In Rubi, the Provincial Board of Mindoro adopted a Resolution authorizing the provincial governor
to remove the Mangyans from their domains and place them in a permanent reservation in Sitio
Tigbao, Lake Naujan. Any Mangyan who refused to comply was to be imprisoned. Rubi and some
Mangyans, including one who was imprisoned for trying to escape from the reservation, filed for
habeas corpus claiming deprivation of liberty under the Board Resolution. This Court denied the
petition on the ground of police power. It upheld government policy promoting the idea that a
permanent settlement was the only successful method for educating the Mangyans, introducing
civilized customs, improving their health and morals, and protecting the public forests in which they
roamed.151 Speaking through Justice Malcolm, the court said:
"Reference was made in the President's instructions to the Commission to the policy adopted by the
United States for the Indian Tribes. The methods followed by the Government of the Philippine
Islands in its dealings with the so-called non-Christian people is said, on argument, to be practically
identical with that followed by the United States Government in its dealings with the Indian tribes.
Valuable lessons, it is insisted, can be derived by an investigation of the American-Indian policy.
From the beginning of the United States, and even before, the Indians have been treated as "in a
state of pupilage." The recognized relation between the Government of the United States and the
Indians may be described as that of guardian and ward. It is for the Congress to determine when and
how the guardianship shall be terminated. The Indians are always subject to the plenary authority of
the United States.152
x x x.
As to the second point, the facts in the Standing Bear case and the Rubi case are not exactly
identical. But even admitting similarity of facts, yet it is known to all that Indian reservations do
exist in the United States, that Indians have been taken from different parts of the country and
placed on these reservations, without any previous consultation as to their own wishes, and that,
when once so located, they have been made to remain on the reservation for their own good and for
the general good of the country. If any lesson can be drawn from the Indian policy of the United
States, it is that the determination of this policy is for the legislative and executive branches of the
government and that when once so decided upon, the courts should not interfere to upset a carefully
planned governmental system. Perhaps, just as many forceful reasons exist for the segregation of the
Manguianes in Mindoro as existed for the segregation of the different Indian tribes in the United
States."153
Rubi applied the concept of Indian land grants or reservations in the Philippines. An Indian
reservation is a part of the public domain set apart by proper authority for the use and occupation of
a tribe or tribes of Indians. 154 It may be set apart by an act of Congress, by treaty, or by executive
order, but it cannot be established by custom and prescription.155
Indian title to land, however, is not limited to land grants or reservations. It also covers the
"aboriginal right of possession or occupancy."156 The aboriginal right of possession depends on
the actual occupancy of the lands in question by the tribe or nation as their ancestral home, in the
sense that such lands constitute definable territory occupied exclusively by the particular tribe or
nation.157 It is a right which exists apart from any treaty, statute, or other governmental action,
although in numerous instances treaties have been negotiated with Indian tribes, recognizing their
aboriginal possession and delimiting their occupancy rights or settling and adjusting their
boundaries.158
American jurisprudence recognizes the Indians' or native Americans' rights to land they have
held and occupied before the "discovery" of the Americas by the Europeans. The earliest
definitive statement by the U.S. Supreme Court on the nature of aboriginal title was made in
1823 in Johnson & Graham's Lessee v. M'Intosh.159
In Johnson, the plaintiffs claimed the land in question under two (2) grants made by the chiefs of
two (2) Indian tribes. The U.S. Supreme Court refused to recognize this conveyance, the plaintiffs
being private persons. The only conveyance that was recognized was that made by the Indians to the
government of the European discoverer. Speaking for the court, Chief Justice Marshall pointed out
that the potentates of the old world believed that they had made ample compensation to the
inhabitants of the new world by bestowing civilization and Christianity upon them; but in addition,
said the court, they found it necessary, in order to avoid conflicting settlements and consequent war,
to establish the principle that discovery gives title to the government by whose subjects, or by
whose authority, the discovery was made, against all other European governments, which title
might be consummated by possession.160 The exclusion of all other Europeans gave to the nation
making the discovery the sole right of acquiring the soil from the natives and establishing
settlements upon it. As regards the natives, the court further stated that:
"Those relations which were to exist between the discoverer and the natives were to be regulated by
themselves. The rights thus acquired being exclusive, no other power could interpose between them.
In the establishment of these relations, the rights of the original inhabitants were, in no instance,
entirely disregarded; but were necessarily, to a considerable extent, impaired. They were admitted
to be the rightful occupants of the soil, with a legal as well as just claim to retain possession of
it, and to use itaccording to their own discretion; but their rights to complete sovereignty, as
independent nations, were necessarily diminished, and their power to dispose of the soil at their own
will, to whomsoever they pleased, was denied by the fundamental principle that discovery gave
exclusive title to those who made it.
While the different nations of Europe respected the right of the natives as occupants, they
asserted the ultimate dominion to be in themselves; and claimed and exercised, as a
consequence of this ultimate dominion, a power to grant the soil, while yet in possession of the
natives. These grants have been understood by all to convey a title to the grantees, subject
only to the Indian right of occupancy."161
Thus, the discoverer of new territory was deemed to have obtained the exclusive right to acquire
Indian land and extinguish Indian titles. Only to the discoverer- whether to England, France, Spain
or Holland- did this right belong and not to any other nation or private person. The mere acquisition
of the right nonetheless did not extinguish Indian claims to land. Rather, until the discoverer, by
purchase or conquest, exercised its right, the concerned Indians were recognized as the "rightful
occupants of the soil, with a legal as well as just claim to retain possession of it." Grants made by
the discoverer to her subjects of lands occupied by the Indians were held to convey a title to the
grantees, subject only to the Indian right of occupancy. Once the discoverer purchased the land from
the Indians or conquered them, it was only then that the discoverer gained an absolute title
unrestricted by Indian rights.
The court concluded, in essence, that a grant of Indian lands by Indians could not convey a title
paramount to the title of the United States itself to other parties, saying:
"It has never been contended that the Indian title amounted to nothing. Their right of possession
has never been questioned. The claim of government extends to the complete ultimate title,
charged with this right of possession, and to the exclusive power of acquiring that right." 162
It has been said that the history of America, from its discovery to the present day, proves the
universal recognition of this principle.163
The Johnson doctrine was a compromise. It protected Indian rights and their native lands without
having to invalidate conveyances made by the government to many U.S. citizens. 164
Johnson was reiterated in the case of Worcester v. Georgia.165 In this case, the State of Georgia
enacted a law requiring all white persons residing within the Cherokee nation to obtain a license or
permit from the Governor of Georgia; and any violation of the law was deemed a high
misdemeanor. The plaintiffs, who were white missionaries, did not obtain said license and were thus
charged with a violation of the Act.
The U.S. Supreme Court declared the Act as unconstitutional for interfering with the treaties
established between the United States and the Cherokee nation as well as the Acts of Congress
regulating intercourse with them. It characterized the relationship between the United States
government and the Indians as:
"The Indian nations were, from their situation, necessarily dependent on some foreign potentate for
the supply of their essential wants, and for their protection from lawless and injurious intrusions into
their country. That power was naturally termed their protector. They had been arranged under the
protection of Great Britain; but the extinguishment of the British power in their neighborhood, and
the establishment of that of the United States in its place, led naturally to the declaration, on the part
of the Cherokees, that they were under the protection of the United States, and of no other power.
They assumed the relation with the United States which had before subsisted with Great Britain.
This relation was that of a nation claiming and receiving the protection of one more powerful, not
that of individuals abandoning their national character, and submitting as subjects to the laws of a
master."166
It was the policy of the U.S. government to treat the Indians as nations with distinct territorial
boundaries and recognize their right of occupancy over all the lands within their domains. Thus:
"From the commencement of our government Congress has passed acts to regulate trade and
intercourse with the Indians; which treat them as nations, respect their rights, and manifest a firm
purpose to afford that protection which treaties stipulate. All these acts, and especially that of 1802,
which is still in force, manifestly consider the several Indian nations as distinct political
communities, having territorial boundaries, within which their authority is exclusive, and
having a right to all the lands within those boundaries, which is not only acknowledged, but
guaranteed by the United States.
x x x.
"The Indian nations had always been considered as distinct, independent political
communities, retaining their original natural rights, as the undisputed possessors of the soil
from time immemorial,with the single exception of that imposed by irresistible power, which
excluded them from intercourse with any other European potentate than the first discoverer of the
coast of the particular region claimed: and this was a restriction which those European potentates
imposed on themselves, as well as on the Indians. The very term "nation," so generally applied to
them, means "a people distinct from others." x x x.167
The Cherokee nation, then, is a distinct community, occupying its own territory, with boundaries
accurately described, in which the laws of Georgia can have no force, and which the citizens of
Georgia have no right to enter but with the assent of the Cherokees themselves or in conformity
with treaties and with the acts of Congress. The whole intercourse between the United States and
this nation is, by our Constitution and laws, vested in the government of the United States." 168
The discovery of the American continent gave title to the government of the discoverer as against all
other European governments. Designated as the naked fee, 169 this title was to be consummated by
possession and was subject to the Indian title of occupancy. The discoverer acknowledged the
Indians' legal and just claim to retain possession of the land, the Indians being the original
inhabitants of the land. The discoverer nonetheless asserted the exclusive right to acquire the
Indians' land- either by purchase, "defensive" conquest, or cession- and in so doing, extinguish the
Indian title. Only the discoverer could extinguish Indian title because it alone asserted ultimate
dominion in itself. Thus, while the different nations of Europe respected the rights of the natives as
occupants, they all asserted the ultimate dominion and title to be in themselves. 170
As early as the 19th century, it became accepted doctrine that although fee title to the lands
occupied by the Indians when the colonists arrived became vested in the sovereign- first the
discovering European nation and later the original 13 States and the United States- a right of
occupancy in the Indian tribes was nevertheless recognized. The Federal Government continued
the policy of respecting the Indian right of occupancy, sometimes called Indian title, which it
accorded the protection of complete ownership. 171But this aboriginal Indian interest simply
constitutes "permission" from the whites to occupy the land, and means mere possession not
specifically recognized as ownership by Congress. 172 It is clear that this right of occupancy based
upon aboriginal possession is not a property right.173 It is vulnerable to affirmative action by the
federal government who, as sovereign, possessed exclusive power to extinguish the right of
occupancy at will.174 Thus, aboriginal title is not the same as legal title. Aboriginal title rests on
actual, exclusive and continuous use and occupancy for a long time. 175 It entails that land owned by
Indian title must be used within the tribe, subject to its laws and customs, and cannot be sold to
another sovereign government nor to any citizen. 176 Such title as Indians have to possess and occupy
land is in the tribe, and not in the individual Indian; the right of individual Indians to share in the
tribal property usually depends upon tribal membership, the property of the tribe generally being
held in communal ownership.177
As a rule, Indian lands are not included in the term "public lands," which is ordinarily used to
designate such lands as are subject to sale or other disposal under general laws. 178 Indian land which
has been abandoned is deemed to fall into the public domain. 179 On the other hand, an Indian
reservation is a part of the public domain set apart for the use and occupation of a tribe of
Indians.180 Once set apart by proper authority, the reservation ceases to be public land, and until the
Indian title is extinguished, no one but Congress can initiate any preferential right on, or restrict the
nation's power to dispose of, them.181
The American judiciary struggled for more than 200 years with the ancestral land claims of
indigenous Americans.182 And two things are clear. First, aboriginal title is recognized. Second,
indigenous property systems are also recognized. From a legal point of view, certain benefits can be
drawn from a comparison of Philippine IPs to native Americans. 183 Despite the similarities between
native title and aboriginal title, however, there are at present some misgivings on whether
jurisprudence on American Indians may be cited authoritatively in the Philippines. The U.S.
recognizes the possessory rights of the Indians over their land; title to the land, however, is deemed
to have passed to the U.S. as successor of the discoverer. The aboriginal title of ownership is not
specifically recognized as ownership by action authorized by Congress. 184 The protection of
aboriginal title merely guards against encroachment by persons other than the Federal
Government.185 Although there are criticisms against the refusal to recognize the native Americans'
ownership of these lands,186 the power of the State to extinguish these titles has remained firmly
entrenched.187
Under the IPRA, the Philippine State is not barred form asserting sovereignty over the ancestral
domains and ancestral lands.188 The IPRA, however, is still in its infancy and any similarities
between its application in the Philippines vis--vis American Jurisprudence on aboriginal title will
depend on the peculiar facts of each case.
(c) Why the Cario doctrine is unique
In the Philippines, the concept of native title first upheld in Cario and enshrined in the IPRA grants
ownership, albeit in limited form, of the land to the ICCs/IPs. Native title presumes that the land is
private and was never public. Cario is the only case that specifically and categorically
recognizes native title. The long line of cases citing Cario did not touch on native title and the
private character of ancestral domains and lands. Cario was cited by the succeeding cases to
support the concept of acquisitive prescription under the Public Land Act which is a different
matter altogether. Under the Public Land Act, land sought to be registered must be public
agricultural land. When the conditions specified in Section 48 [b] of the Public Land Act are
complied with, the possessor of the land is deemed to have acquired, by operation of law, a right to a
grant of the land.189 The land ceases to be part of the public domain, 190 ipso jure,191 and is converted
to private property by the mere lapse or completion of the prescribed statutory period.
It was only in the case of Oh Cho v. Director of Lands 192 that the court declared that the rule that all
lands that were not acquired from the government, either by purchase or grant, belong to the public
domain has an exception. This exception would be any land that should have been in the possession
of an occupant and of his predecessors-in-interest since time immemorial. It is this kind of
possession that would justify the presumption that the land had never been part of the public domain
or that it had been private property even before the Spanish conquest. 193 Oh Cho, however, was
decided under the provisions of the Public Land Act and Cario was cited to support the applicant's
claim of acquisitive prescription under the said Act.
All these years, Cario had been quoted out of context simply to justify long, continuous, open and
adverse possession in the concept of owner of public agricultural land. It is this long, continuous,
open and adverse possession in the concept of owner of thirty years both for ordinary citizens 194 and
members of the national cultural minorities195 that converts the land from public into private and
entitles the registrant to a torrens certificate of title.
(3) The Option of Securing a Torrens Title to the Ancestral Land Indicates that the Land is
Private.
The private character of ancestral lands and domains as laid down in the IPRA is
further strengthened by the option given to individual ICCs/IPs over their individually-owned
ancestral lands. For purposes of registration under the Public Land Act and the Land
Registration Act, the IPRA expressly converts ancestral land into public agricultural land
which may be disposed of by the State. The necessary implication is thatancestral land is
private. It, however, has to be first converted to public agricultural land simply for registration
purposes. To wit:
"Sec. 12. Option to Secure Certificate of Title Under Commonwealth Act 141, as amended, or the
Land Registration Act 496- Individual members of cultural communities, with respect to their
individually-owned ancestral lands who, by themselves or through their predecessors-in-interest,
have been in continuous possession and occupation of the same in the concept of owner since time
immemorial or for a period of not less than thirty (30) years immediately preceding the approval of
this Act and uncontested by the members of the same ICCs/IPs shall have the option to secure title
to their ancestral lands under the provisions of Commonwealth Act 141, as amended, or the Land
Registration Act 496.
For this purpose, said individually-owned ancestral lands, which are agricultural in character and
actually used for agricultural, residential, pasture, and tree farming purposes, including those with a
slope of eighteen percent (18%) or more, are hereby classified as alienable and disposable
agricultural lands.
The option granted under this section shall be exercised within twenty (20) years from the approval
of this Act."196
ICCs/IPs are given the option to secure a torrens certificate of title over their individually-owned
ancestral lands. This option is limited to ancestral lands only, not domains, and such lands must be
individually, not communally, owned.
Ancestral lands that are owned by individual members of ICCs/IPs who, by themselves or through
their predecessors-in-interest, have been in continuous possession and occupation of the same in the
concept of owner since time immemorial197 or for a period of not less than 30 years, which claims
are uncontested by the members of the same ICCs/IPs, may be registered under C.A. 141, otherwise
known as the Public Land Act, or Act 496, the Land Registration Act. For purposes of registration,
the individually-owned ancestral lands are classified as alienable and disposable agricultural lands
of the public domain, provided, they are agricultural in character and are actually used for
agricultural, residential, pasture and tree farming purposes. These lands shall be classified as public
agricultural lands regardless of whether they have a slope of 18% or more.
The classification of ancestral land as public agricultural land is in compliance with the
requirements of the Public Land Act and the Land Registration Act. C.A. 141, the Public Land Act,
deals specifically with lands of the public domain. 198 Its provisions apply to those lands "declared
open to disposition or concession" x x x "which have not been reserved for public or quasi-public
purposes, nor appropriated by the Government, nor in any manner become private property, nor
those on which a private right authorized and recognized by this Act or any other valid law x x x or
which having been reserved or appropriated, have ceased to be so." 199 Act 496, the Land Registration
Act, allows registration only of private lands and public agricultural lands. Since ancestral
domains and lands are private, if the ICC/IP wants to avail of the benefits of C.A. 141 and Act
496, the IPRA itself converts his ancestral land, regardless of whether the land has a slope of
eighteen per cent (18%) or over,200 from private to public agricultural land for proper
disposition.
The option to register land under the Public Land Act and the Land Registration Act has nonetheless
a limited period. This option must be exercised within twenty (20) years from October 29, 1997, the
date of approval of the IPRA.
Thus, ancestral lands and ancestral domains are not part of the lands of the public domain.
They are private and belong to the ICCs/IPs. Section 3 of Article XII on National Economy and
Patrimony of the 1987 Constitution classifies lands of the public domain into four categories: (a)
agricultural, (b) forest or timber, (c) mineral lands, and (d) national parks. Section 5 of the same
Article XII mentions ancestral lands and ancestral domains but it does not classify them under any
of the said four categories. To classify them as public lands under any one of the four classes
will render the entire IPRA law a nullity. The spirit of the IPRA lies in the distinct concept of
ancestral domains and ancestral lands. The IPRA addresses the major problem of the ICCs/IPs
which is loss of land. Land and space are of vital concern in terms of sheer survival of the
ICCs/IPs.201
The 1987 Constitution mandates the State to "protect the rights of indigenous cultural
communities to their ancestral lands" and that "Congress provide for the applicability of
customary laws x x x in determining the ownership and extent of ancestral domain." 202 It is the
recognition of the ICCs/IPs distinct rights of ownership over their ancestral domains and
lands that breathes life into this constitutional mandate.
B. The right of ownership and possession by the ICCs/IPs of their ancestral domains is a
limited form of ownership and does not include the right to alienate the same.
Registration under the Public Land Act and Land Registration Act recognizes the concept of
ownership under thecivil law. This ownership is based on adverse possession for a specified period,
and harkens to Section 44 of the Public Land Act on administrative legalization (free patent) of
imperfect or incomplete titles and Section 48 (b) and (c) of the same Act on the judicial
confirmation of imperfect or incomplete titles. Thus:
"Sec. 44. Any natural-born citizen of the Philippines who is not the owner of more than twenty-four
hectares and who since July fourth, 1926 or prior thereto, has continuously occupied and cultivated,
either by himself or through his predecessors-in-interest, a tract or tracts of agricultural public lands
subject to disposition, or who shall have paid the real estate tax thereon while the same has not been
occupied by any person shall be entitled, under the provisions of this chapter, to have a free patent
issued to him for such tract or tracts of such land not to exceed twenty-four hectares.
A member of the national cultural minorities who has continuously occupied and cultivated,
either by himself or through his predecessors-in-interest, a tract or tracts of land, whether
disposable or not since July 4, 1955, shall be entitled to the right granted in the preceding
paragraph of this section:Provided, That at the time he files his free patent application he is
not the owner of any real property secured or disposable under the provision of the Public
Land Law.203
x x x.
"Sec. 48. The following described citizens of the Philippines, occupying lands of the public domain
or claiming to own any such lands or an interest therein, but whose titles have not been perfected or
completed, may apply to the Court of First Instance of the province where the land is located for
confirmation of their claims and the issuance of a certificate of title therefor, under the Land
Registration Act, to wit:
(a) [perfection of Spanish titles] xxx.
(b) Those who by themselves or through their predecessors-in-interest have been in open,
continuous, exclusive, and notorious possession and occupation of agricultural lands of the
public domain, under a bona fide claim of acquisition or ownership, for at least thirty years
immediately preceding the filing of the application for confirmation of title except when
prevented by war or force majeure. These shall be conclusively presumed to have performed
all the conditions essential to a Government grant and shall be entitled to a certificate of title
under the provisions of this Chapter.
(c) Members of the national cultural minorities who by themselves or through their
predecessors-in-interest have been in open, continuous, exclusive and notorious
possession and occupation of lands of the public domain suitable to agriculture,
whether disposable or not, under a bona fide claim of ownership for at least 30 years
shall be entitled to the rights granted in sub-section (b) hereof."204
Registration under the foregoing provisions presumes that the land was originally public agricultural
land but because of adverse possession since July 4, 1955 (free patent) or at least thirty years
(judicial confirmation), the land has become private. Open, adverse, public and continuous
possession is sufficient, provided, the possessor makes proper application therefor. The possession
has to be confirmed judicially or administratively after which a torrens title is issued.
A torrens title recognizes the owner whose name appears in the certificate as entitled to all the rights
of ownership under the civil law. The Civil Code of the Philippines defines ownership in Articles
427, 428 and 429. This concept is based on Roman Law which the Spaniards introduced to the
Philippines through the Civil Code of 1889. Ownership, under Roman Law, may be exercised over
things or rights. It primarily includes the right of the owner to enjoy and dispose of the thing owned.
And the right to enjoy and dispose of the thing includes the right to receive from the thing what it
produces,205 the right to consume the thing by its use, 206 the right to alienate, encumber, transform or
even destroy the thing owned,207 and the right to exclude from the possession of the thing owned by
any other person to whom the owner has not transmitted such thing.208
1. The Indigenous Concept of Ownership and Customary Law.
Ownership of ancestral domains by native title does not entitle the ICC/IP to a torrens title but to a
Certificate of Ancestral Domain Title (CADT). The CADT formally recognizes
the indigenous concept of ownership of the ICCs/IPs over their ancestral domain. Thus:
"Sec. 5. Indigenous concept of ownership.- Indigenous concept of ownership sustains the view that
ancestral domains and all resources found therein shall serve as the material bases of their cultural
integrity. The indigenous concept of ownership generally holds that ancestral domains are the
ICCs/IPs private but community property which belongs to all generations and therefore cannot be
sold, disposed or destroyed. It likewise covers sustainable traditional resource rights."
The right of ownership and possession of the ICCs/IPs to their ancestral domains is held
under the indigenous concept of ownership. This concept maintains the view that ancestral
domains are the ICCs/IPs private but community property. It is private simply because it is
not part of the public domain. But its private character ends there. The ancestral domain is
owned in common by the ICCs/IPs and not by one particular person. The IPRA itself provides
that areas within the ancestral domains, whether delineated or not, are presumed to be communally
held.209 These communal rights, however, are not exactly the same as co-ownership rights
under the Civil Code.210 Co-ownership gives any co-owner the right to demand partition of the
property held in common. The Civil Code expressly provides that "no co-owner shall be obliged to
remain in the co-ownership." Each co-owner may demand at any time the partition of the thing in
common, insofar as his share is concerned. 211 To allow such a right over ancestral domains may be
destructive not only of customary law of the community but of the very community itself. 212
Communal rights over land are not the same as corporate rights over real property, much less
corporate condominium rights. A corporation can exist only for a maximum of fifty (50) years
subject to an extension of another fifty years in any single instance. 213 Every stockholder has the
right to disassociate himself from the corporation. 214 Moreover, the corporation itself may be
dissolved voluntarily or involuntarily.215
Communal rights to the land are held not only by the present possessors of the land but
extends to all generations of the ICCs/IPs, past, present and future, to the domain. This is the
reason why the ancestral domain must be kept within the ICCs/IPs themselves. The domain cannot
be transferred, sold or conveyed to other persons. It belongs to the ICCs/IPs as a community.
Ancestral lands are also held under the indigenous concept of ownership. The lands are
communal. These lands, however, may be transferred subject to the following limitations: (a) only
to the members of the same ICCs/IPs; (b) in accord with customary laws and traditions; and (c)
subject to the right of redemption of the ICCs/IPs for a period of 15 years if the land was transferred
to a non-member of the ICCs/IPs.
Following the constitutional mandate that "customary law govern property rights or relations in
determining the ownership and extent of ancestral domains," 216 the IPRA, by legislative fiat,
introduces a new concept of ownership. This is a concept that has long existed under
customary law.217
Custom, from which customary law is derived, is also recognized under the Civil Code as a
source of law.218 Some articles of the Civil Code expressly provide that custom should be applied in
cases where no codal provision is applicable. 219 In other words, in the absence of any applicable
provision in the Civil Code, custom, when duly proven, can define rights and liabilities. 220
Customary law is a primary, not secondary, source of rights under the IPRA and uniquely applies
to ICCs/IPs. Its recognition does not depend on the absence of a specific provision in the civil
law. The indigenous concept of ownership under customary law is specifically acknowledged and
recognized, and coexists with the civil law concept and the laws on land titling and land
registration.221
To be sure, the indigenous concept of ownership exists even without a paper title. The CADT is
merely a "formal recognition" of native title. This is clear from Section 11 of the IPRA, to wit:
"Sec. 11. Recognition of Ancestral Domain Rights.- The rights of ICCs/IPs to their ancestral
domains by virtue of Native Title shall be recognized and respected. Formal recognition, when
solicited by ICCs/IPs concerned shall be embodied in a Certificate of Ancestral Domain Title, which
shall recognize the title of the concerned ICCs/IPs over the territories identified and delineated."
The moral import of ancestral domain, native land or being native is "belongingness" to the land,
being people of the land- by sheer force of having sprung from the land since time beyond recall,
and the faithful nurture of the land by the sweat of one's brow. This is fidelity of usufructuary
relation to the land- the possession of stewardship through perduring, intimate tillage, and the
mutuality of blessings between man and land; from man, care for land; from the land, sustenance for
man.222
C. Sections 7 (a), 7 (b) and 57 of the IPRA Do Not Violate the Regalian Doctrine Enshrined in
Section 2, Article XII of the 1987 Constitution.
1. The Rights of ICCs/IPs Over Their Ancestral Domains and Lands
The IPRA grants the ICCs/IPs several rights over their ancestral domains and ancestral lands.
Section 7 provides for the rights over ancestral domains:
"Sec. 7. Rights to Ancestral Domains.- The rights of ownership and possession of ICCs/IPs to their
ancestral domains shall be recognized and protected. Such rights include:
a) Right of Ownership.- The right to claim ownership over lands, bodies of water
traditionally and actually occupied by ICCs/IPs, sacred places, traditional hunting and
fishing grounds, and all improvements made by them at any time within the domains;
b) Right to Develop Lands and Natural Resources.- Subject to Section 56 hereof, the right
to develop, control and use lands and territories traditionally occupied, owned, or used;
to manage and conserve natural resources within the territories and uphold the
responsibilities for future generations; to benefit and share the profits from allocation
and utilization of the natural resources found therein; the right to negotiate the terms
and conditions for the exploration of natural resources in the areas for the purpose of
ensuring ecological, environmental protection and the conservation measures, pursuant
to national and customary laws; the right to an informed and intelligent participation in the
formulation and implementation of any project, government or private, that will affect or
impact upon the ancestral domains and to receive just and fair compensation for any damages
which they may sustain as a result of the project; and the right to effective measures by the
government to prevent any interference with, alienation and encroachment upon these
rights;"
c) Right to Stay in the Territories.- The right to stay in the territory and not to be removed
therefrom. No ICCs/IPs will be relocated without their free and prior informed consent, nor
through any means other than eminent domain. x x x;
d) Right in Case of Displacement.- In case displacement occurs as a result of natural
catastrophes, the State shall endeavor to resettle the displaced ICCs/IPs in suitable areas
where they can have temporary life support systems: x x x;
e) Right to Regulate the Entry of Migrants.- Right to regulate the entry of migrant settlers and
organizations into their domains;
f) Right to Safe and Clean Air and Water.-For this purpose, the ICCs/IPs shall have access to
integrated systems for the management of their inland waters and air space;
g) Right to Claim Parts of Reservations.- The right to claim parts of the ancestral domains
which have been reserved for various purposes, except those reserved and intended for
common and public welfare and service;
h) Right to Resolve Conflict.- Right to resolve land conflicts in accordance with customary
laws of the area where the land is located, and only in default thereof shall the complaints be
submitted to amicable settlement and to the Courts of Justice whenever necessary."
Section 8 provides for the rights over ancestral lands:
"Sec. 8. Rights to Ancestral Lands.- The right of ownership and possession of the ICCs/IPs to their
ancestral lands shall be recognized and protected.
a) Right to transfer land/property.- Such right shall include the right to transfer land or
property rights to/among members of the same ICCs/IPs, subject to customary laws and
traditions of the community concerned.
b) Right to Redemption.- In cases where it is shown that the transfer of land/property rights
by virtue of any agreement or devise, to a non-member of the concerned ICCs/IPs is tainted
by the vitiated consent of the ICCs/IPs, or is transferred for an unconscionable consideration
or price, the transferor ICC/IP shall have the right to redeem the same within a period not
exceeding fifteen (15) years from the date of transfer."
Section 7 (a) defines the ICCs/IPs the right of ownership over their ancestral domains which
covers (a) lands, (b) bodies of water traditionally and actually occupied by the ICCs/IPs, (c) sacred
places, (d) traditional hunting and fishing grounds, and (e) all improvements made by them at any
time within the domains. The right of ownership includes the following rights: (1) the right to
develop lands and natural resources; (b) the right to stay in the territories; (c) the right to
resettlement in case of displacement; (d) the right to regulate the entry of migrants; (e) the right to
safe and clean air and water; (f) the right to claim parts of the ancestral domains as reservations; and
(g) the right to resolve conflict in accordance with customary laws.
Section 8 governs their rights to ancestral lands. Unlike ownership over the ancestral domains,
Section 8 gives the ICCs/IPs also the right to transfer the land or property rights to members of the
same ICCs/IPs or non-members thereof. This is in keeping with the option given to ICCs/IPs to
secure a torrens title over the ancestrallands, but not to domains.
2. The Right of ICCs/IPs to Develop Lands and Natural Resources Within the Ancestral Domains
Does Not Deprive the State of Ownership Over the Natural Resources and Control and Supervision
in their Development and Exploitation.
The Regalian doctrine on the ownership, management and utilization of natural resources is
declared in Section 2, Article XII of the 1987 Constitution, viz:
"Sec. 2. All lands of the public domain, waters, minerals, coal, petroleum, and other mineral
oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and
other natural resources are owned by the State. With the exception of agricultural lands, all other
natural resources shall not be alienated. The exploration, development, and utilization of natural
resources shall be under the full control and supervision of the State. The State may directly
undertake such activities, or, it may enter into co-production, joint venture, or productionsharing agreements with Filipino citizens, or corporations or associations at least sixty per
centum of whose capital is owned by such citizens. Such agreements may be for a period not
exceeding twenty-five years, renewable for not more than twenty-five years, and under such terms
and conditions as may be provided by law. In cases of water rights for irrigation, water supply,
fisheries, water supply, fisheries, or industrial uses other than the development of water power,
beneficial use may be the measure and limit of the grant.
The State shall protect the nation's marine wealth in its archipelagic waters, territorial sea, and
exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino citizens.
The Congress may, by law, allow small-scale utilization of natural resources by Filipino
citizens, as well as cooperative fish farming, with priority to subsistence fishermen and fishworkers
in rivers, lakes, bays, and lagoons.
The President may enter into agreements with foreign-owned corporations involving either technical
or financial assistance for large-scale exploration, development, and utilization of minerals,
petroleum, and other mineral oils according to the general terms and conditions provided by law,
based on real contributions to the economic growth and general welfare of the country. In such
agreements, the state shall promote the development and use of local scientific and technical
resources.
The President shall notify the Congress of every contract entered into in accordance with this
provision, within thirty days from its execution."223
All lands of the public domain and all natural resources- waters, minerals, coal, petroleum, and
other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and
fauna, and other natural resources- are owned by the State. The Constitution provides that in the
exploration, development and utilization of these natural resources, the State exercises full control
and supervision, and may undertake the same in four (4) modes:
1. The State may directly undertake such activities; or
2. The State may enter into co-production, joint venture or production-sharing agreements
with Filipino citizens or qualified corporations;
3. Congress may, by law, allow small-scale utilization of natural resources by Filipino
citizens;
4. For the large-scale exploration, development and utilization of minerals, petroleum and
other mineral oils, the President may enter into agreements with foreign-owned
corporations involving technical or financial assistance.
As owner of the natural resources, the State is accorded primary power and responsibility in
the exploration, development and utilization of these natural resources. The State may directly
undertake the exploitation and development by itself, or, it may allow participation by the private
sector through co-production,224joint venture,225 or production-sharing agreements.226 These
agreements may be for a period of 25 years, renewable for another 25 years. The State, through
Congress, may allow the small-scale utilization of natural resources by Filipino citizens. For the
large-scale exploration of these resources, specifically minerals, petroleum and other mineral oils,
the State, through the President, may enter into technical and financial assistance agreements with
foreign-owned corporations.
Under the Philippine Mining Act of 1995, (R.A. 7942) and the People's Small-Scale Mining Act of
1991 (R.A. 7076) the three types of agreements, i.e., co-production, joint venture or productionsharing, may apply to both large-scale 227 and small-scale mining.228 "Small-scale mining" refers to
"mining activities which rely heavily on manual labor using simple implements and methods and do
not use explosives or heavy mining equipment."229
Examining the IPRA, there is nothing in the law that grants to the ICCs/IPs ownership over
the natural resources within their ancestral domains. The right of ICCs/IPs in their ancestral
domains includesownership, but this "ownership" is expressly defined and limited in Section 7
(a) as:
"Sec. 7. a) Right of ownership- The right to claim ownership over lands, bodies of water
traditionally and actually occupied by ICCs/IPs, sacred places, traditional hunting and fishing
grounds, and all improvements made by them at any time within the domains;"
The ICCs/IPs are given the right to claim ownership over "lands, bodies of water traditionally and
actually occupied by ICCs/IPs, sacred places, traditional hunting and fishing grounds, and all
improvements made by them at any time within the domains." It will be noted that this enumeration
does
not
mention bodies
of
water
not
occupied by
the
ICCs/IPs, minerals, coal, wildlife, flora and fauna in the traditional hunting grounds, fish in the
traditional fishing grounds, forests or timber in the sacred places, etc. and all other natural resources
found within the ancestral domains. Indeed, the right of ownership under Section 7 (a) does not
cover "waters, minerals, coal,petroleum and other mineral oils, all forces of potential
energy, fisheries, forests or timber, wildlife,flora and fauna and all other natural resources"
enumerated in Section 2, Article XII of the 1987 Constitution as belonging to the State.
The non-inclusion of ownership by the ICCs/IPs over the natural resources in Section 7(a) complies
with the Regalian doctrine.
(a) Section 1, Part II, Rule III of the Implementing Rules Goes Beyond the Parameters of Sec.
7 (a) of the IPRA And is Unconstitutional.
The Rules Implementing the IPRA230 in Section 1, Part II, Rule III reads:
"Section 1. Rights of Ownership. ICCs/IPs have rights of ownership over lands, waters, and natural
resources and all improvements made by them at any time within the ancestral domains/ lands.
These rights shall include, but not limited to, the right over the fruits, the right to possess, the right
to use, right to consume, right to exclude and right to recover ownership, and the rights or interests
over land and natural resources. The right to recover shall be particularly applied to lands lost
through fraud or any form or vitiated consent or transferred for an unconscionable price."
Section 1 of the Implementing Rules gives the ICCs/IPs rights of ownership over "lands, waters and
natural resources." The term "natural resources" is not one of those expressly mentioned in Section
7 (a) of the law. Our Constitution and jurisprudence clearly declare that the right to claim ownership
over land does not necessarily include the right to claim ownership over the natural resources found
on or under the land.231 The IPRA itself makes a distinction between land and natural resources.
Section 7 (a) speaks of the right of ownership only over the land within the ancestral domain.
It is Sections 7 (b) and 57 of the law that speak of natural resources, and these provisions, as
shall be discussed later, do not give the ICCs/IPs the right of ownership over these resources.
The constitutionality of Section 1, Part II, Rule III of the Implementing Rules was not specifically
and categorically challenged by petitioners. Petitioners actually assail the constitutionality of the
Implementing Rules in general.232Nevertheless, to avoid any confusion in the implementation of the
law, it is necessary to declare that the inclusion of "natural resources" in Section 1, Part II, Rule III
of the Implementing Rules goes beyond the parameters of Section 7 (b) of the law and is contrary
to Section 2, Article XII of the 1987 Constitution.
(b) The Small-Scale Utilization of Natural Resources In Sec. 7 (b) of the IPRA Is Allowed
Under Paragraph 3, Section 2 of Article XII of the Constitution.
Ownership over natural resources remain with the State and the IPRA in Section 7 (b) merely grants
the ICCs/IPs the right to manage them, viz:
"Sec. 7 (b) Right to Develop Lands and Natural Resources.- Subject to Section 56 hereof, right to
develop, control and use lands and territories traditionally occupied, owned, or used; to manage and
conserve natural resourceswithin the territories and uphold the responsibilities for future
generations; to benefit and share the profits from allocation and utilization of the natural resources
found therein; the right to negotiate the terms and conditions for the exploration of natural resources
in the areas for the purpose of ensuring ecological, environmental protection and the conservation
measures, pursuant to national and customary laws; the right to an informed and intelligent
participation in the formulation and implementation of any project, government or private, that will
affect or impact upon the ancestral domains and to receive just and fair compensation for any
damages which they may sustain as a result of the project; and the right to effective measures by the
government to prevent any interference with, alienation and encroachment upon these rights;"
The right to develop lands and natural resources under Section 7 (b) of the IPRA enumerates the
following rights:
a) the right to develop, control and use lands and territories traditionally occupied;
b) the right to manage and conserve natural resources within the territories and uphold the
responsibilities for future generations;
c) the right to benefit and share the profits from the allocation and utilization of the natural
resources found therein;
d) the right to negotiate the terms and conditions for the exploration of natural resources for
the purpose of ensuring ecological, environmental protection and the conservation measures,
pursuant to national and customary laws;
e) the right to an informed and intelligent participation in the formulation and
implementation of any project, government or private, that will affect or impact upon the
ancestral domains and to receive just and fair compensation for any damages which they may
sustain as a result of the project;
f) the right to effective measures by the government to prevent any interference with,
alienation and encroachment upon these rights.233
Ownership over the natural resources in the ancestral domains remains with the State and the
ICCs/IPs are merely granted the right to "manage and conserve" them for future generations,
"benefit and share" the profits from their allocation and utilization, and "negotiate the terms
and conditions for their exploration" for the purpose of "ensuring ecological and
environmental protection and conservation measures." It must be noted that the right to
negotiate the terms and conditions over the natural resources covers only their exploration which
must be for the purpose of ensuring ecological and environmental protection of, and conservation
measures in the ancestral domain. It does not extend to the exploitation and development of natural
resources.
Simply stated, the ICCs/IPs' rights over the natural resources take the form of management or
stewardship. For the ICCs/IPs may use these resources and share in the profits of their utilization or
negotiate the terms for their exploration. At the same time, however, the ICCs/IPs must ensure that
the natural resources within their ancestral domains are conserved for future generations and that the
"utilization" of these resources must not harm the ecology and environment pursuant to national and
customary laws.234
The limited rights of "management and use" in Section 7 (b) must be taken to contemplate
small-scale utilization of natural resources as distinguished from large-scale. Small-scale
utilization of natural resources is expressly allowed in the third paragraph of Section 2, Article
XII of the Constitution "in recognition of the plight of forest dwellers, gold panners, marginal
fishermen and others similarly situated who exploit our natural resources for their daily sustenance
and survival."235 Section 7 (b) also expressly mandates the ICCs/IPs to manage and conserve these
resources and ensure environmental and ecological protection within the domains, which duties, by
their very nature, necessarily reject utilization in a large-scale.
(c) The Large-Scale Utilization of Natural Resources In Section 57 of the IPRA Is Allowed
Under Paragraphs 1 and 4, Section 2, Article XII of the 1987 Constitution.
Section 57 of the IPRA provides:
"Sec. 57. Natural Resources within Ancestral Domains.- The ICCs/IPs shall have priority rights in
theharvesting, extraction, development or exploitation of any natural resources within the
ancestral domains. A non-member of the ICCs/IPs concerned may be allowed to take part in the
development and utilization of the natural resources for a period of not exceeding twenty-five (25)
years renewable for not more than twenty-five (25) years: Provided, That a formal and written
agreement is entered into with the ICCs/IPs concerned or that the community, pursuant to its own
decision-making process, has agreed to allow such operation: Provided finally, That the NCIP may
exercise visitorial powers and take appropriate action to safeguard the rights of the ICCs/IPs under
the same contract."
Section 57 speaks of the "harvesting, extraction, development or exploitation of natural
resources within ancestral domains" and "gives the ICCs/IPs 'priority rights' therein." The
terms "harvesting, extraction, development or exploitation" of any natural resources within
the ancestral domains obviously refer to large-scale utilization. It is utilization not merely for
subsistence but for commercial or other extensive use that require technology other than manual
labor.236 The law recognizes the probability of requiring a non-member of the ICCs/IPs to participate
in the development and utilization of the natural resources and thereby allows such participation for
a period of not more than 25 years, renewable for another 25 years. This may be done on condition
that a formal written agreement be entered into by the non-member and members of the ICCs/IPs.
Section 57 of the IPRA does not give the ICCs/IPs the right to "manage and conserve" the natural
resources. Instead, the law only grants the ICCs/IPs "priority rights" in the development or
exploitation thereof. Priority means giving preference. Having priority rights over the natural
resources does not necessarily mean ownership rights. The grant of priority rights implies that there
is a superior entity that owns these resources and this entity has the power to grant preferential
rights over the resources to whosoever itself chooses.
Section 57 is not a repudiation of the Regalian doctrine. Rather, it is an affirmation of the said
doctrine that all natural resources found within the ancestral domains belong to the State. It
incorporates by implication the Regalian doctrine, hence, requires that the provision be read in the
light of Section 2, Article XII of the 1987 Constitution. Interpreting Section 2, Article XII of the
1987 Constitution237 in relation to Section 57 of IPRA, the State, as owner of these natural
resources, may directly undertake the development and exploitation of the natural resources
by itself, or in the alternative, it may recognize the priority rights of the ICCs/IPs as owners of
the land on which the natural resources are found by entering into a co-production, joint
venture, or production-sharing agreement with them. The State may likewise enter into any of
said agreements with a non-member of the ICCs/IPs, whether natural or juridical, or enter
into agreements with foreign-owned corporations involving either technical or financial

assistance for the large-scale exploration, development and utilization of minerals, petroleum,
and other mineral oils, or allow such non-member to participate in its agreement with the
ICCs/IPs. If the State decides to enter into an agreement with a non-ICC/IP member, the National
Commission on Indigenous Peoples (NCIP) shall ensure that the rights of the ICCs/IPs under the
agreement shall be protected. The agreement shall be for a period of 25 years, renewable for another
25 years.
To reiterate, in the large-scale utilization of natural resources within the ancestral domains, the State,
as owner of these resources, has four (4) options: (1) it may, of and by itself, directly undertake the
development and exploitation of the natural resources; or (2) it may recognize the priority rights of
the ICCs/IPs by entering into an agreement with them for such development and exploitation; or (3)
it may enter into an agreement with a non-member of the ICCs/IPs, whether natural or juridical,
local or foreign; or (4) it may allow such non-member to participate in the agreement with the
ICCs/IPs.
The rights granted by the IPRA to the ICCs/IPs over the natural resources in their ancestral
domains merely gives the ICCs/IPs, as owners and occupants of the land on which the
resources are found, the right to the small-scale utilization of these resources, and at the same
time, a priority in their large-scale development and exploitation. Section 57 does not mandate
the State to automatically give priority to the ICCs/IPs. The State has several options and it is
within its discretion to choose which option to pursue. Moreover, there is nothing in the law that
gives the ICCs/IPs the right to solely undertake the large-scale development of the natural resources
within their domains. The ICCs/IPs must undertake such endeavour always under State supervision
or control. This indicates that the State does not lose control and ownership over the resources even
in their exploitation. Sections 7 (b) and 57 of the law simply give due respect to the ICCs/IPs who,
as actual occupants of the land where the natural resources lie, have traditionally utilized these
resources for their subsistence and survival.
Neither is the State stripped of ownership and control of the natural resources by the following
provision:
"Section 59. Certification Precondition.- All departments and other governmental agencies shall
henceforth be strictly enjoined from issuing, renewing or granting any concession, license or lease,
or entering into any production-sharing agreement. without prior certification from the NCIP that
the area affected does not overlap with any ancestral domain. Such certification shall only be issued
after a field-based investigation is conducted by the Ancestral Domains Office of the area
concerned: Provided, That no certification shall be issued by the NCIP without the free and prior
informed and written consent of the ICCs/IPs concerned: Provided, further, That no department,
government agency or government-owned or -controlled corporation may issue new concession,
license, lease, or production sharing agreement while there is a pending application for a
CADT: Provided, finally, That the ICCs/IPs shall have the right to stop or suspend, in accordance
with this Act, any project that has not satisfied the requirement of this consultation process."
Concessions, licenses, lease or production-sharing agreements for the exploitation of natural
resources shall not be issued, renewed or granted by all departments and government agencies
without prior certification from the NCIP that the area subject of the agreement does not overlap
with any ancestral domain. The NCIP certification shall be issued only after a field-based
investigation shall have been conducted and the free and prior informed written consent of the
ICCs/IPs obtained. Non-compliance with the consultation requirement gives the ICCs/IPs the right
to stop or suspend any project granted by any department or government agency.
As its subtitle suggests, this provision requires as a precondition for the issuance of any concession,
license or agreement over natural resources, that a certification be issued by the NCIP that the area
subject of the agreement does not lie within any ancestral domain. The provision does not vest the
NCIP with power over the other agencies of the State as to determine whether to grant or deny any
concession or license or agreement. It merely gives the NCIP the authority to ensure that the
ICCs/IPs have been informed of the agreement and that their consent thereto has been obtained.
Note that the certification applies to agreements over natural resources that do not necessarily lie
within the ancestral domains. For those that are found within the said domains, Sections 7(b) and 57
of the IPRA apply.
V. THE IPRA IS A RECOGNITION OF OUR ACTIVE PARTICIPATION IN THE
INDIGENOUS INTERNATIONAL MOVEMENT.
The indigenous movement can be seen as the heir to a history of anti-imperialism stretching back to
prehistoric times. The movement received a massive impetus during the 1960's from two sources.
First, the decolonization of Asia and Africa brought into the limelight the possibility of peoples
controlling their own destinies. Second, the right of self-determination was enshrined in the UN
Declaration on Human Rights.238 The rise of the civil rights movement and anti-racism brought to
the attention of North American Indians, Aborigines in Australia, and Maori in New Zealand the
possibility of fighting for fundamental rights and freedoms.
In 1974 and 1975, international indigenous organizations were founded, 239 and during the 1980's,
indigenous affairs were on the international agenda. The people of the Philippine Cordillera were
the first Asians to take part in the international indigenous movement. It was the Cordillera People's
Alliance that carried out successful campaigns against the building of the Chico River Dam in 198182 and they have since become one of the best-organized indigenous bodies in the world. 240
Presently, there is a growing concern for indigenous rights in the international scene. This came as a
result of the increased publicity focused on the continuing disrespect for indigenous human rights
and the destruction of the indigenous peoples' environment, together with the national governments'
inability to deal with the situation.241Indigenous rights came as a result of both human rights and
environmental protection, and have become a part of today's priorities for the international agenda. 242
International institutions and bodies have realized the necessity of applying policies, programs and
specific rules concerning IPs in some nations. The World Bank, for example, first adopted a policy
on IPs as a result of the dismal experience of projects in Latin America. 243 The World Bank now
seeks to apply its current policy on IPs to some of its projects in Asia. This policy has provided an
influential model for the projects of the Asian Development Bank.244
The 1987 Philippine Constitution formally recognizes the existence of ICCs/IPs and declares as a
State policy the promotion of their rights within the framework of national unity and
development.245 The IPRA amalgamates the Philippine category of ICCs with the international
category of IPs,246 and is heavily influenced by both the International Labor Organization (ILO)
Convention 169 and the United Nations (UN) Draft Declaration on the Rights of Indigenous
Peoples.247
ILO Convention No. 169 is entitled the "Convention Concerning Indigenous and Tribal Peoples in
Independent Countries"248 and was adopted on June 27, 1989. It is based on the Universal
Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights,
the International Covenant on Civil and Political Rights, and many other international instruments
on the prevention of discrimination.249 ILO Convention No. 169 revised the "Convention Concerning
the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in
Independent Countries" (ILO No. 107) passed on June 26, 1957. Developments in international law
made it appropriate to adopt new international standards on indigenous peoples "with a view to
removing the assimilationist orientation of the earlier standards," and recognizing the aspirations of
these peoples to exercise control over their own institutions, ways of life and economic
development."250
CONCLUSION
The struggle of the Filipinos throughout colonial history had been plagued by ethnic and religious
differences. These differences were carried over and magnified by the Philippine government
through the imposition of a national legal order that is mostly foreign in origin or
derivation.251 Largely unpopulist, the present legal system has resulted in the alienation of a large
sector of society, specifically, the indigenous peoples. The histories and cultures of the indigenes are
relevant to the evolution of Philippine culture and are vital to the understanding of contemporary
problems.252 It is through the IPRA that an attempt was made by our legislators to understand
Filipino society not in terms of myths and biases but through common experiences in the course of
history. The Philippines became a democracy a centennial ago and the decolonization process still
continues. If the evolution of the Filipino people into a democratic society is to truly proceed
democratically, i.e., if the Filipinos as a whole are to participate fully in the task of continuing
democratization,253 it is this Court's duty to acknowledge the presence of indigenous and customary
laws in the country and affirm their co-existence with the land laws in our national legal system.
With the foregoing disquisitions, I vote to uphold the constitutionality of the Indigenous Peoples
Rights Act of 1997.
Footnotes
Chief Judge, US Court of Appeals for the Seventh Circuit; Senior Lecturer, University of
Chicago Law School.
1
The University of Chicago Law Review, Vol. 67, Summer 2000, No. 3, p. 573.
Dominium is distinguished from imperium which is the government authority possessed by

the state expressed in the concept of sovereignty- Lee Hong Hok v. David, 48 SCRA 372,
377 [1972].
3
Valenton v. Murciano, 3 Phil. 537, 543 [1904]; See also Florencio D.R. Ponce, The
Philippine Torrens System, p. 13 [1964].
4
Antonio H. Noblejas, Land Titles and Deeds, p. 5 [1986]; these grants were better known as
repartimientos and encomiendas. Repartimientos were handouts to the military as fitting
reward for their services to the Spanish crown. The encomiendas were given to Spaniards to
administer and develop with the right to receive and enjoy for themselves the tributes of the
natives assigned to them.- Ponce, supra, p. 12, citing Benitez, History of the Philippines, pp.
125-126.
5
Narciso Pena, Registration of Land Titles and Deeds, p. 2 [1994].
The Mortgage Law is a misnomer because it is primarily a law on registration of property

and secondarily a mortgage law- Ponce, supra, at 16.
7
Ponce, supra, at 15.
3 Phil. 537 [1904].
10
Id. at 540.
11
Id. at 548.
12
Id. at 543-544.
13
Id. at 543.
Id. at 542-543. These comments by the court are clear expressions of the concept that
Crown holdings embraced both imperium and dominiumMa. Lourdes Aranal-Sereno and
Roan Libarios, The Interface Between National Land Law and Kalinga Land Law, 58 P.L.J.
420, 423 [1983].
14
15
Id. at 545-546.
16
Id. at 543.
17
Id. at 557.
Id. at 553-554; Valenton was applied in Cansino v. Valdez, 6 Phil. 320 [1906]; Tiglao v.
Insular Government, 7 Phil. 80 [1906]; and Cario v. Insular Government, 7 Phil. 132
[1906]; all decided by the Philippine Supreme Court.
18
19
Please see Section 70, Act 926.
20
21
Montano v. Insular Government, 12 Phil. 572 [1909]; also cited in Ponce, supra, at 32.
Archbishop of Manila v. Director of Lands, 27 Phil. 245 [1914]; also cited in Ponce, supra,
at 32.
22
23
Antonio H. Noblejas, Land Titles and Deeds, p. 250 [1961].
24
25
Pea, Registration of Land Titles and Deeds, p. 26 [1982]; Noblejas, supra, at 32.
26
Noblejas, supra, at 32.
27
Ponce, supra, at 123-124; Noblejas, supra, at 33.
28
2 Aruego, The Framing of the Philippine Constitution, p. 592 [1937].
29
Id. at 600.
30
Id. at 600-601.
31
Ibid.
32
Section 7.
33
Section 8.
34
Sections 13 to 20.
35
Sections 21 to 28.
36
Sections 29 to 37.
37
Sections 38 and 40.
38
Sections 74 to 77.
39
Section 69.
40
Section 73.
Convention Conerning Indigenous and Tribal Peoples in Independent Countries, June 27,
1989.
41
Guide to R.A. 8371, published by the Coalition for Ips Rights and ancestral Domains in
cooperation with the ILO and Bilance-Asia Department, p. 4 [1999]hereinafter referred to
as Guide to R.A. 8371.
42
Taken from the list of IPs sbmitted by Rep. Andolana to the house of Representatives
during the deliberations on H.B. No. 9125Interpellations of Aug. 20, 1997, pp. 0008600095. "lost tribes" such as the Lutangan and Tatang have not been included.
43
How these people came to the Philippines may be explained by two theories. One view,
generally linked to Professor Otley H. Beyer, suggests the "wave theory"a series of arrivals
in the archipelago bringing in different types and levels of culture. The Negritos, darkskinned pygmies, came between 25,000 to 30,000 B.C. Their cultural remains are preserved
by the Negrito-type Filipinos found in Luzon, Visayas and Mindanao. Their relatively
inferior culture did not enable them to overcome the pressures from the second wave of
people, the Indonesians A and B who came in 5,000 and 3,500 B.C. They are represented
today by the Kalinga, Gaddang, Isneg, Mangyan, Tagbanua, Manobo, Mandaya, Subanon,
and Sama. The first group was pushed inland as the second occupied the coastal and
downriver settlements. The last wave involved Malay migrations between 500 B.C. and
1,500 A.D. they had a more advanced culture based on metal age technology. They are
represented by the Christianized and Islamized Filipinos who pushed the Indonesian groups
inland and occupied much of the coastal, lowland and downstream areas.
44
A second view is postulated by Robert Fox, F. Landa Jocana, Alfredo Evangelista, and
Jesus Peralta. Jocano maintains that the Negritos, Indonesians and Malays stand coequal as ethnic groups without any one being dominant, racially or culturally. The
geographic distribution of the ethno-linguistic groups, which shows overlapping of
otherwise similar racial strains in both upland and lowland cultures or coastal and
inland communities, suggests a random and unstructured advent of different kinds of

groups in the archipelagoSamuel K. Tan, A History of the Philippines, published by
the Manila Studies Association, Inc. and the Philippine National Historical society,
Inc., pp. 33-34 [1997]; Teodoro A. Agoncillo, History of the Filipino People, p. 21
[1990].
45
Tan, supra, at 35-36.
Onofre D. Corpuz, The Roots of the Filipino Nation, Philippine Centennial (1898-1998)
Edition, vol. 1, p. 13, Aklahi foundation, Inc. [1989]. It was in 800-1,000 A.D. that the
Ifugaos of Northern Luzon built the rice terracesId. at 37.
46
47
Id. at 5-6.
48
Id. at 13.
49
Teodoro A. Agoncillo, History of the Filipino People, p. 54 [1990].
50
Corpuz, supra, at 5.
51
Id. at 44-45.
52
Agoncillo, supra, at 40.
53
Id. at 40-41.
Rafael Iriarte, History of the Judicial System, the Philippine Indigenous Era Prior to 1565,
unpublished work submitted as entry to the Centennial Essay-Writing Contest sponsored by
the National Centennial Commission and the Supreme Court in 1997, p. 103, citing Perfecto
V. Fernandez, Customs Laws in Pre-Conquest Philippines, UP Law Center, p. 10 [1976].
54
55
Amelia Alonzo, The History of the Judicial System in the Philippines, Indigenous Era
Prior to 1565,unpublished work submitted as entry to the Centennial Essay-Writing Contest
sponsored by the National Centennial Commission and the Supreme Court in 1997.
56
57
58
Renato Constantino, A Past Revisited , p. 38 [1975].
Samuel K. Tan, A History of the Philippines, published by the Manila Studies Assn., Inc.
and the Phil. National Historical Society, Inc., p. 43 [1997].
59
60
Id.
61
Id. at 43-44.
62
63
Id. at 48-49.
Cacho v. Government of the P.I., 28 Phil. 616, 625-627 [1914]; see also Ponce, The
Philippine Torrens System, pp. 11-12 [1964]. In Philippine pre-colonial history, there was
only one recorded transaction on the purchase of land. The Maragtas Code tells us of the
purchase of Panay Island by ten Bornean datus led by Datu Puti from the Atis under
Marikudo in the 13th century. The purchase price for the island was a gold salakot and a long
gold necklace Agoncillo, supra, at 25.
64
65
Constantino, supra, at 38.
66
Corpuz, supra, at 39.
Resettlement- "bajo el son de la campana" (under the sound of the bell) or "bajo el toque
de la campana"(Under the peal of the bell).
67
68
People v. Cayat, 68 Phil. 12, 17 [1939].
69
Id. at 17, citing the Decree of the Governor-General of the Philippines, Jan. 14, 1887.
70
71
Id. at 80.
72
Corpuz, supra, at 277-278.
73
Id. at 277.
Id., N.B. But see discussion in Cario v. Insular Government, infra, where the United States
Supreme Court found that the Spanish decrees in the Philippines appeared to recognize that
the natives owned some land. Whether in the implementation of these decrees the natives
ancestral rights to land wereactually respected was not discussed by the U.S. Supreme
Court; see also Note 131, infra.
74
75
76
Id. at 67.
77
Id. at 52-53.
78
Id. at 53.
79
Id. at 55.
80
People v. Cayat, 68 Phil. 12, 17 [1939].
Memorandum of the Secretary of the Interior, quoted in Rubi v. Provincial Board of

Mindoro, 39 Phil. 660, 714 [1919]; also cited in People v. Cayat, supra, at 17-18.
81
82
Rubi v. Provincial Board of Mindoro, supra, at 693.
Charles Macdonald, Indigenous Peoples of the Philippines: Between Segregation and

Integration, Indigenous Peoples of Asia, p. 348, ed. by R.H. Barnes, A. Gray and B.
Kingsburry, pub. by Association for Asian Studies [1995]. The BNCT made a Bontok and
83
subanon ethnography, a history of Sulu genealogy, and a compilation on unhispanized

peoples in northern Luzon.Owen J. Lynch, Jr., The Philippine Colonial Dichotomy:
Attraction and Disenfranchisement, 63 P. L. J. 139-140 [1988].
84
R.A. No. 1888 of 1957.
See People v. Cayat, supra, at 21; See also Rubi v. Provincial Board of Mindoro, 39 Phil.
660, 694 [1919]
85
86
MacDonald, Indigenous Peoples of the Philippines, supra, at 351.
The construction of the Ambuklao and Binga dams in the 1950s resulted in the eviction of
hundreds of Ibaloi families Cerilo Rico S. Abelardo, Ancestral Domain Rights: Issues,
Responses, and Recommendations, Ateneo Law Journal, vol. 38, No. 1, p. 92 [1993].
87
88
Section 11, Art. XV, 1973 Constitution.
89
Presidential Decrees Nos. 1017 and 1414.
The PANAMIN, however, concentrated funds and resources on image-building, publicity,

and impact projects. In Mindanao, the agency resorted to a policy of forced resettlement on
reservations, militarization and intimidation- MacDonald, Indigenous Peoples of the
Philippines, supra, at 349-350.
90
No occupancy certificates were issued, however, because the government failed to release
the decrees implementing rules and regulations- Abelardo, supra, at 120-121.
91
92
Id., Note 177.
93
Id., at 93-94.
94
MacDonald, Indigenous People of the Philippines, supra, at 351.
95
E.O. Nos. 122-A, 122-B and 122-C. The preamble of E.O. No. 122-B states:
"Believing that the new government is committed to formulate more vigorous
policies, plans, programs, and projects for tribal Filipinos, otherwise known as
Indigenous Cultural Communities, taking into consideration their communal
aspirations, customs, traditions, beliefs, and interests, in order to promote and preserve
their rich cultural heritage and insure their participation in the countrys development
for national unity; xxx"
Article II, sec. 22; Article VI, sec. 5, par. 2; Article XII, sec. 5; Article XIII, sec. 6; Article
XIV, sec. 17; and Article XVI, sec. 12.
96
97
MacDonald, Indigenous Peoples of the Philippines, supra, at 345.
98
Samuel K. Tan, A History of the Philippines, p. 54 [1997].
Cordillera Studies Program, Land Use and Ownership and Public Policy in the Cordillera,
29-30 [n.d.]; also cited in Dante B. Gatmaytan, Ancestral Domain Recognition in the
99
Philippines: Trends in Jurisprudence and Legislation, 5 Phil. Nat. Res. L.J. No. 1, pp. 47-48
[1992].
Abelardo, Ancestral Domain Rights, supra, at 98-99, citing Ponciano L. Bennagen,
Indigenous Attitudes Toward Land and Natural Resources of Tribal Filipinos, 31 National
Council of Churches in the Philippines Newsletter, Oct.-Dec. 1991, at 4-9.
100
101
Id. at 99, citing June Prill-Brett, Bontok Land Tenure (UP Law library, mimeographed).
Ma. Lourdes Aranal-Sereno and Roan Libarios, The Interface of National Land Law and
Kalinga Law, 58 P.L.J. 420, 440-441 [1983].
102
103
Ibid.
104
Ibid.
105
Ibid.
106
Ma. Lourdes Aranal-Sereno and Roan Libarios, The Interface, supra, at 420.
Senate Bill No. 1728 was co-sponsored by Senator Macapagal-Arroyo and co-authored by
Senators Alvarez, Magsaysay, Revilla, Mercado, Enrile, Honasan, Tatad, Maceda, Shahani,
Osmena and Romulo.
107
The Eighth Congress, through Senators Rasul, Estrada and Romulo filed a bill to
operationalize the mandate of the 1987 Constitution on indigenous peoples. The bill
was reported out, sponsored an interpellated but never enacted into law. In the Ninth
Congress, the bill filed by Senators Rasul and Macapagal-Arroyo was never sponsored
and deliberated upon in the floor.
Sponsorship Speech of Senator Flavier, Legislative History of SBN 1728, Tenth Congress,
Second Regular Session, Senate, Oct. 16, 1996, pp. 15-16.
108
109
Id. at 12.
110
Id. at 17-18.
111
Id. at 13.
Journal of the Tenth Congress of the Philippines, Senate, Session No. 5, Aug. 5-6, 1997,
pp. 86-87.
112
Co-authors of the bill were Reps. Ermita, Teves, Plaza, Calalay, Recto, Fua, Luciano,
Abad, Cosalan, Aumentado, de la Cruz, Bautista, Singson, Damasing, Romualdo, Montilla,
Germino, VercelesProceedings of Sept. 4, 1997, pp. 00107-00108.
113
114
Sponsorship speech of Rep. Andolana of House Bill No. 9125, March 20, 1997.
115
Interpellation of Aug. 20, 1997, 6:16 p.m., p. 00061.
116
Section 3 [a], IPRA.
117
Section 3 [b], IPRA.
118
Guide to R.A. 8371, p. 14.
119
Section 44 [e], IPRA.
120
Section 51, IPRA.
121
Guide to R.A. 8371, p. 15.
A CADT refers to a title formally recognizing the right of possession and ownership of
ICCs/IPs over their ancestral domains identified and delineated in acordance with the IPRA
Rule II [c], Rules & Regulations Implementing the IPRA, NCIP Admin. Order No. 1.
122
123
Section 53 [a], IPRA.
A CALT refers to a title formally recognizing the rights of the ICCs/IPs over their ancestral
lands- Rule II [d], Implementing Rules, NCIP A.O. No. 1.
124
125
Section 52 [k], IPRA.
126
Section 3 [1], IPRA.
127
Section 11, IPRA.
128
Ibid.
129
41 Phil. 935 (1909), 212 U.S. 449, 53 L.Ed. 594.
Sponsorship Speech of Senator Juan Flavier, Leg. History of SBN 1728, Tenth Congress,
Second Regular Session, Oct. 16, 1996, p. 13.
130
It was the practice of the Spanish colonial government not to issue titles to IgorotsOwen
J. Lynch, Jr., Invisible Peoples and a Hidden Agenda: The Origins of Contemporary
Philippine Land Laws (1900-1913), 63 P.L.J. 249, 288 [1988], citing the testimony of
Benguet Provincial Governnor William F. Pack, Records at 47, Cario.
131
132
Maura Law or the Royal Decree of Feb. 13, 1894.
133
Later named Camp John Hay.
134
Lynch, Invisible Peoples, supra, at 288-289.
135
7 Phil. 132 [1906].
In 1901, Cario had entered into a promissory agreement with a U.S. merchant in Manila.
The note obliged Cario to sell the land at issue "as soon as he obtains from the Government
of the United States, or its representatives in the Philippines, real and definitive title." See
Lynch, Invisible Peoples, supra, at 290, citing Governments Exhibit G, Records, at 137-138,
Cario.
136
137
Cario v. Insular Government, supra, at 939.
Ibid.
138
Id. at 940.
139
Id. at 941.
140
Id. at 941-942.
141
Aranal-Sereno and Libarios, The Interface Between Kalinga Land Law, supra at 428-This
artcile was one of those circulated among the Constitutional Commissioners in the
formulation of Sec. 5, Article XII of the 1987 Constitution (4 Record of the Constitutional
Commission 33).
142
Id. at 944.
143
Certificate of Title No. 2 covering the 148 hectares of Baguio Municipality was issued not
in the name of Cario who died on June 6, 1908, but to his lawyers John Hausserman and
Charles Cohn and his attorney-in-fact Metcalf Clarke. Hausserman, Cohn and Clarke sold the
land to the U.S. Government in a Deed of Quitclaim-Richel B. Langit, Igorot Descendants
Claim Rights to Camp John Hay, Manila Times, p. 1, Jan. 12, 1998.
144
Id. at 939.
145
57 P.L.J. 268, 293-296 [1982].
146
From 1987 to 1988, Prof. Lynch allowed the P.L.J. to publish parts of his doctoral
dissertation at the Yale Law School entitled "Invisible Peoples: A History of Philippine Land
Law." Please see the Legal Bases of Philippine Colonial Sovereignty: An Inquiry, 62 P.L.J.
279 [1987]; Land Rights, Land Laws and Land Usurpation: The Spanish Era (1568-1898), 63
P.L.J. 82 [1988]; The Colonial Dichotomy: Attraction and Disenfranchisement, 63 P.L.J. 112;
Invisible Peoples and a Hidden Agenda: The Origins of Contemporary Philippine Land Laws
(1900-1913), 63 P.L.J. 249.
147
"Native title" is a common law recognition of pre-existing aboriginal land interests in

Autsralia- Maureen Tehan, Customary Title, Heritage Protection, and Property Rights in
Australia: Emerging Patterns of Land Use in the Post-Mabo Era, 7 Pacific Rim Law & Policy
Journal, No. 3, p. 765 [June 1998].
148
Lynch, Native Titles, supra, Note 164, p. 293.
149
39 Phil. 660 [1919].
150
Id. at 712-713.
151
Id. at 694.
152
Id. at 700.
153
42 C.J.S., Indians, Sec. 29 [1944 ed.].
154
There are 3 kinds of Indian reservations: (a) those created by treaties prior to 1871; (b)
those created by acts of Congress since 1871; and (c) those made by Executive Orders where
155
the President has set apart public lands for the use of the Indians in order to keep them within
a certain territory- 42 C.J.S., Indians, Sec. 29 citing Sioux Tribe of Indians v. U.S. 94 Ct. Cl.
150, 170, certiorari granted 62 S. Ct. 631, 315 U.S. 790, 86 L. Ed. 1194, affirmed 62 S. Ct.
1095, 316 U.S. 317, 86 L. Ed. 1501. It is observed that the first two kinds may include
lands possessed by aboriginal title. The last kind covers Indian reservations proper.
Until 1871, Indian tribes were recognized by the United States as possessing the
attributes of nations to the extent that treaties were made with them. In that year,
however, Congress, by statute, declared its intention thereafter to make the Indian
tribes amenable directly to the power and authority of the United States by the
immediate exercise of its legislative power over them, instead of by treaty. Since then,
Indian affairs have been regulated by acts if Congress and by contracts with the Indian
tribes practically amounting to treaties- 41 Am Jur 2d, Indians, Sec. 55 [1995 ed].
42 C.J.S. Indians, Sec. 28 [1944 ed.].
156
Ibid.; see also U.S. v. Santa Fe Pac. R. Co., Ariz., 62 S. Ct. 248, 314 U.S. 339, 86 L. Ed.
260 [1941].
157
Ibid.
158
8 Wheat 543, 5 L. Ed. 681 [1823].
159
Id. at 680.
160
Id. at 689.
161
Id. at 696; see also 41 ALR Fed 425, Annotation: Proof and Extinguishment of Aboriginal
Title to Indian Lands, Sec. 2[a] [1979].
162
Buttz v. Northern Pac.R. Co., Dak., 7 S. Ct. 100, 119 U.S. 55, 30 L. Ed. 330, 335 [1886].
163
Lynch, Native Title, supra, at 293-294; Cohen, Original Indian Title, 32 Minn. L.R. 48-49
[1947].
164
6 Pet 515, 8 L.Ed. 483 [1832].
165
Id. at 499.
166
Id. at 500.
167
Id. at 501.
168
The title of the government to Indian lands, the naked fee, is a sovereign title, the
government having no landlord from whom it holds the fee- Shoshone Tribe of Indians of
Wind River Reservation in Wyoming v. U.S., 85 Ct. Cl. 331, certiorari granted U.S. v.
Shoshone Tribe of Indians, 58 S. Ct. 609, 303 U.S. 629, 82 L. Ed. 1090, affirmed 58 S. Ct.
794, 304 U.S. 111, 82 L. Ed. 1213, 1218-1219 [1938].
169
Buttz v. Northern Pac. R. Co., Dak., at 30 L. Ed. 330, 335; Beecher v. Wetherby, Wis., 95
U.S. 517, 24 L. Ed. 440, 441 [1877]; see also 42 C.J.S., Indians, Sec. 28 [1944 ed.].
170
Annotation, Proof and Extinguishment of Aboriginal title to Indian Lands, 41 ALR Fed
425, Sec. 2 [b] [1979]- hereinafter cited as Aboriginal Title to Indian Lands.
171
Ibid.; see also Tee Hit Ton Indians v. U.S., 348 U.S. 272, 99 L. Ed. 314, 320, 75 S. Ct. 313
[1955], reh den 348 U.S. 965, 99 L. Ed. 753, 75 S. Ct. 521.
172
Ibid.; Tee Hit Ton Indians v. U.S., at 99 L. Ed. 320.
173
Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 39 L. Ed. 2d 73, 94 S Ct. 772
[1974]; U.S. v. Alcea Bank of Tillamooks, 329 U.S. 40, 91 L. Ed. 29. 67 S. Ct. 167 [1946].
174
For compensation under the Indian Claims Commission Act, the proof of aboriginal title
rests on actual, exclusive and continuous use and occupancy for a long time prior to the loss
of the property. (The Indian Claims Commission Act awards compensation to Indians whose
aboriginal titles were extinguished by the government through military conquest, creation of
a reservation, forced confinement of Indians and removal of Indians from certain portions of
the land an the designation of Indian land into forest preserve, grazing district, etc.)
- Aboriginal Title to Indian Lands, supra, at Secs. 2[a], 3[a], pp. 431, 433, 437.
175
Aboriginal Title to Indian Lands, supra, at Sec. 2[b], p. 435.
176
41 Am Jr 2d, Indians, Sec. 59 [1995 ed.].
177
An allotment of Indian land contains restrictions on alienation of the land. These

restrictions extend to a devise of the land by will- Missouri, K. & T.R. Co. v. U.S., 235 U.S.
37, 59 L. Ed. 116,. 35 S. Ct. 6 [1914]; A railroad land grant that falls within Indian land is
null and void- Northern P. R. Co. v. U.S., 227 U.S. 355, 57 L.Ed. 544,33 S. Ct. 368 [1913];
Portions of Indian land necessary for a railroad right of way were, by the terms of the treaty,
declared "public land," implying that land beyond the right of way was private- Kindred v.
Union P.R. Co., 225 U.S. 582, 56 L. Ed. 1216, 32 S. Ct. 780 [1912]; see also 41 Am Jur 2d,
Indians, Sec. 58 [1995 ed].
178
Aboriginal Title to Indian Lands, supra, at Sec. 2[a], p. 433.
179
42 C.J.S. Indians, Sec. 29 [1944 ed.]
180
Ibid.
181
North American Indians have made much progress in establishing a relationship with the
national government and developing their own laws. Some have their own governmentrecognized constitutions. Usually the recognition of Indian tribes depends on whether the
tribe has a reservation. North American tribes have reached such an advanced stage that the
main issues today evolve around complex jurisdictional and litigation matters. Tribes have
acquired the status of sovereign nations within another nation, possessing the right to change
and grow- Jose Paulo Kastrup, The Internationalization of Indigenous Rights from the
Environmental and Human Rights Perspective, Texas International Law Journal, vol. 32: 97,
104 [1997].
182
Lynch, Native Title, supra, at 293.
183
Dante Gatmaytan, Ancestral Domain Recognition in the Philippines: Trends in

Jurisprudence and Legislation, 5 Phil. Nat. Res. L.J. No. 1, pp. 43, 40 [Aug. 1992]; see also
Tee Hit Ton Indians v. U.S., supra, at 320.
184
Ibid.
185
D. Gatmaytan, supra, citing Churchill, The Earth is Our Mother: Struggles for American
Indian Land and Liberation in the Contemporary United States, The State of Native America:
Genocide, Colonization and Resistance 139 (M. Jaimes 1992); and Indian Law Resource
Center, United States Denial of Indian Property Rights: A Study in Lawless Power and Racial
Discrimination, Rethinking Indian Law 15 (National Lawyers Guild, Committee on Native
American Struggles 1982).
186
Id., Note 28, stating that some earlier decisions of the U.S. Supreme Court have held that
Congress is subject to the strictures of the Constitution in dealing with Indians. When an
Indian property is taken for non-Indian use, the U.S. government is liable for payment of
compensation, and an uncompensated taking may be enjoined. F. Cohen, Handbook of
Federal Indian Law 217 [1982], citing Shoshone Tribe v. U.S. 299 U.S. 476 [1937];
Choate v. Trapp, 224 U.S. 665 [1912]; and Lane v. Pueblo of Santa Rosa, 249 U.S. 110
[1919].
187
See Discussion, infra, Part IV (c) (2).
188
Susi v. Razon, 48 Phil. 424 [1925]; Herico v. Dar, 95 SCRA 437 [1980].
189
Ibid.
190
Director of Lands v. Intermediate Appellate Court, 146 SCRA 509 [1986]; Director of
Lands v. Buyco, 216 SCRA 78 [1992]; Republic v. Court of Appeals and Lapina, 235 SCRA
567 [1994].
191
75 Phil. 890 [1946].
192
Id. at 892.
193
Sec. 48 [b], C.A. 141.
194
Sec. 48 [c], C.A. 141, as amended. This provision was added in 1964 by R.A. 3872.
195
Section 12, IPRA.
196
"Time immemorial" refers "to a period of time when as far back as memory can go, certain
ICCs/Ips are known to have occupied, possessed in the concept of owner, and utilized a
defined territory devolved to them, by operation of customary law or inherited from their
ancestors, in accordance with their customs and traditions." (Sec. 3 [p], IPRA).
197
Section 2, C.A. 141.
198
Section 8, C.A. 141.
199
The classification of ancestral lands 18% in slope or over as alienable in the IPRA is an
exception to Section 15, P.D. 705, the Revised Forestry Code.
200
Charles MacDonald, Indigenous Peoples of the Philippines: Between Segregation and

Integration, Indigenous Peoples of Asia, supra, at pp. 345, 350.
201
202
Section 5, Article XII, 1987 Constitution.
203
Words in bold were amendments introduced by R.A. 3872 in 1964.
Words in bold were amendments introduced by R.A. 3872 on June 18, 1964. On January
25, 1977, however, Sec. 48 [b] and 48 [c] were further amended by P.D. 1073 stating that
these provisions on cultural minorities apply only to alienable and disposable lands of the
public domain- Please see Republic v. CA and Paran, 201 SCRA 1, 10-11 [1991].
204
205
Jus utendi, jus fruendi.
206
Jus abutendi.
207
Jus disponendi.
Jus vindicandi. Please see Tolentino, Civil Code, vol. II, pp. 45-46 [1992]; see also
Tolentino, vol. I, pp. 12-14.
208
209
Sec. 55, IPRA provides:

"Sec. 55. Communal rights.- Subject to Section 56 hereof, areas within the ancestral
domains, whether delineated or not, shall be presumed to be communally held:
provided, That communal rights under this Act shall not be construed as co-ownership
as provided in Republic Act No. 386, otherwise known as the New Civil Code."
210
Ibid.
211
Article 494, Civil Code.
Antonio M. La Vina, Arguments for Communal Title, Part II, 2 Phil. Nat. Res. L. J. 23
[Dec. 1989].
212
213
Section 11, Corporation Code.
214
Sections 60-72, Corporation Code.
Section 117, Corporation Code. Please see also La Vina, Arguments for Communal Title,
Part II, supra, at 23.
215
216
Section 5, par. 2, Article XII, 1987 Constitution.
Customary law is recognized by the Local Government Code of 1991 in solving disputes
among members of the indigenous communities, viz:
217
"Sec. 412 (c) Conciliation among members of indigenous cultural communities.- The
customs and traditions of indigenous cultural communities shall be applied in settling
disputes between members of the cultural communities."
Law writes custom into contract-Hongkong & Shanghai Bank v. Peters, 16 Phil. 284
[1910].
218
The Civil Code provides:

"Art. 11. Customs which are contrary to law, public order or public policy shall not be
countenanced."
"Art. 12. A custom must be proved as a fact, according to the rules of evidence."
Article 78 on marriages between Mohammedans or pagans who live in the non-Christian
provinces- this is now Art. 33 of the Family Code; Art. 118, now Art. 74 of the Family Code
on property relations between spouses; Art. 577 on the usufructuary of woodland; Art. 657 on
easement of right of way for passage of livestock; Arts. 678, 1315, 1376, 1522, 1564 and
1577. Please see Aquino, Civil Code, vol. 1, p. 25.
219
Castle Bros. v. Gutierrez Hermanos, 11 Phil. 629 [1908]; In Re: Firm Name of Ozaeta
Romulo, 92 SCRA 1 [1979]; Yao Kee v. Sy-Gonzales, 167 SCRA 736 [1988]; Please see
Aquino, Civil Code, vol. 1, p. 26 for a list of other cases.
220
This situation is analogous to the Muslim code or the Code of Muslim Personal Laws (P.D.
1083) which took effect on February 4, 1977 despite the effectivity of the Civil Code and the
Family Code. P.D. 1083 governs persons, family relations and succession among Muslims,
the adjudication and settlement of disputes, the organization of the Sharia courts, etc.
221
Mariflor P. Pagusara, The Kalinga Ili: Cultural-Ecological Reflections on Indigenous

Theora and Praxis of Man-Nature Relationship, Dakami Ya Nan Dagami, p. 36, Papers and
Proceedings of the 1st Cordillera Muti-Sectoral Land Congress, 11-14 March 1983,
Cordillera Consultative Committee [1984].
222
223
Section 2, Article XII.
A "co-production agreement" is defined as one wherein the government provides input to

the mining operation other than the mineral resource- Section 26 (b), R.A. 7942, the
Philippine Mining Act of 1995.
224
A "joint venture agreement" is one where a joint-venture company is organized by the

government and the contractor with both parties having equity shares, and the government
entitled to a share in the gross output- Section 26 (c), R.A. 7942.
225
A mineral "production-sharing agreement" is one where the government grants to the

contractor the exclusive right to conduct mining operations within a contract area and shares
in the gross output. The contractor provides the financing, technology, management and
personnel necessary for the implementation of the agreement- Section 26 (a), R.A. 7942.
226
227
Section 26, R.A. 7942.
228
Section 3 [d], People's Small-Scale Mining Act of 1991 (R.A. 7076) provides:
"Sec. 3 [d] 'Small-scale mining contract' refers to co-production, joint venture or
mineral production sharing agreement between the State and a small-scale mining
contractor for the small-scale utilization of a plot of mineral land."
229
Section 3 [b], R.A. 7076.
230
NCIP Administrative Order No. 1, Series of 1998.
In Republic v. Court of Appeals, 160 SCRA 228, 239 [1988], Cruz, J., ponente, it was
declared that if a person is the owner of a piece of agricultural land on which minerals are
discovered, his ownership of such land does not give him the right to extract or utilize the
said minerals without the permission of the State to which such minerals belong- also cited in
H. de Leon, Phil. Constitutional Law, Principles and Cases, vol. 2, pp. 800-801 [1999].
231
232
See Ground I, Grounds to Issue Writ of Prohibition, Petition, p. 14.
233
Section 7 (b) is subject to Section 56 of the same law which provides:

"Sec. 56. Existing Property Rights Regimes.- Property rights within the ancestral
domains already existing and/or vested upon effectivity of this Act, shall be
recognized and respected."
The law took effect 15 days upon publication in the O.G. or in any 2 newspapers of
general circulation (Sec. 84, IPRA). The IPRA was published in the Chronicle and
Malaya on Nov. 7, 1997.
Section 9 of the IPRA also gives the ICCs/IPs the ff. responsibilities over their ancestral
domains:
234
(a) Maintain Ecological Balance- To preserve, restore, and maintain a balanced

ecology in the ancestral domain by protecting the flora and fauna, watershed areas,
and other reserves;
(b) Restore Denuded Areas.- To actively initiate, undertake and participate in the
reforestation of denuded areas and other development programs and projects subject
to just and reasonable renumeration;
(c) Observe Laws.- To observe and comply with the provisions of this Act and the
rules and regulations for its effective implementation."
Section 58 of the same law also mandates that ancestral domains or portions thereof,
which are found to be necessary for critical watersheds, mangroves, wildlife
sanctuaries, wilderness, protected areas, forest cover, or reforestation as determined by
appropriate agencies with the full participation of the ICCs/IPs concerned shall be
maintained, managed and developed for such purposes. The ICCs/IPs concerned shall
be given the responsibility to maintain, develop, protect and conserve such areas with
the full and effective assistance of government agencies.
Hector S. de Leon, Textbook on the New Philippine Constitution pp. 473-474 [1987] citing
the 1986 UP Law Constitution Project, The National Economy and Patrimony, p. 11.
235
Under the Small-Scale Mining Act of 1991, "small-scale mining" refers to "mining
activities which rely heavily on manual labor using simple implements and methods and do
not use explosives or heavy mining equipment"- Section 3 [b], R.A. 7076.
236
237
See infra., pp. 77-79?.
Andrew Gray, The Indigenous Movement in Asia, Indigenous Peoples of Asia, ed. By
Barnes, Gray and Kingsbury, pub. By Ass'n. for Asian Studies, at 35, 42 [1995].
238
239
E.g. International Indian Treaty Council, World Council of IPs.
Gray, The Indigenous Movement in Asia, supra, at 44, citing the International Work Group
for Indigenous Affairs, 1988.
240
Jose Paulo Kastrup, The Internationalization of Indigenous Rights from the Environmental
and Human Rights Perspective, 32 Texas International Law Journal 97, 102 [1997].
241
Benedict Kingsbury, "Indigenous Peoples" in International Law: A Constructivist

Approach to the Asian Controversy, The American Journal of International Law, vol. 92: 414,
429 [1998].
242
The World Bank supported the Chico Dam project. Due to the Kalingas' opposition, the
WB pulled out of the project but the conflict between the Philippine government and the
natives endured long after- Marcus Colchester, Indigenous Peoples' Rights and Sustainable
Resource Use in South and Southeast Asia, Indigenous Peoples of Asia, supra, pp. 59, 71-72.
243
244
Kingsbury, supra, at 417.
245
Section 22, Article II, 1987 Constitution.
Interpellation of Senator Flavier on S.B. No. 1728, Deliberation on Second Reading,

November 20, 1996, p. 20.
246
Guide to R.A. 8371, Coalition for IPs Rights and Ancestral Domains, the International
Labor Organization, and the ILO-Bilance- Asia Dep't, p. 3 [1999].
247
248
Also referred to as the "Indigenous and Tribal Peoples Convention, 1989."
249
See Introduction to ILO Convention No. 169, par. 4.
250
Id., pars. 5 and 6.
Perfecto V. Fernandez, Towards a Definition of National Policy on Recognition of Ethnic

Law within the Philippine Legal Order, 55 P.L.J. 383, 385 [1980].
251
Samuel K. Tan, A History of the Philippines, Manila Studies Association, Inc. and the Phil.
National Historical Society, Inc., p. 6 [1997].
252
253
Fernandez, supra, at 385, 391.
SEPARATE OPINION
VITUG, J.:
An issue of grave national interest indeed deserves a proper place in any forum and, when it
shows itself in a given judicial controversy, the rules of procedure, like locus standi, the
propriety of the specific remedy invoked, or the principle of hierarchy of courts, that may
ordinarily be raised by party-litigants, should not be so perceived as good and inevitable
justifications for advocating timidity, let alone isolationism, by the Court.
A cardinal requirement, to which I agree, is that one who invokes the Courts adjudication must
have a personal and substantial interest in the dispute; 1 indeed, the developing trend would require
a logical nexus between the status asserted and the claim sought to be adjudicated in order to ensure
that one is the proper and appropriate party to invoke judicial power.2 The rule requires a party to
aptly show a personal stake in the outcome of the case or an injury to himself that can be redressed
by a favorable decision so as to warrant his invocation of the Courts jurisdiction and to render
legally feasible the exercise of the Courts remedial powers in his behalf. If it were otherwise, the
exercise of that power can easily become too unwieldy by its sheer magnitude and scope to a point
that may, in no small measure, adversely affect its intended essentiality, stability and
consequentiality.
Nevertheless, where a most compelling reason exits, such as when the matter is of transcendental
importance and paramount interest to the nation,3 the Court must take the liberal approach that
recognizes the legal standing of nontraditional plaintiffs, such as citizens and taxpayers, to raise
constitutional issues that affect them. 4 This Court thus did so in a case 5 that involves the
conservation of our forests for ecological needs. Until and exact balance is struck, the Court
must accept an eclectic notion that can free itself from the bondage of legal nicety and hold
trenchant technicalities subordinate to what may be considered to be of overriding concern.
The petition seeks a declaration by the Court of unconstitutionality of certain provisions of Republic
Act No. 8371, a law that obviously is yet incapable of exact equation in its significance to the nation
and its people now and in the generations yet to come. Republic Act No. 8371, otherwise also
known as the Indigenous Peoples Rights Act of 1997 ("IPRA"), enacted into law in 1997 and made
effective on 22 November 1997, is apparently intended to be a legislative response to the 1987
Constitution which recognizes the rights of indigenous cultural communities "within the framework
of national unity and development"6 and commands the State, "subject to the provisions of this
Constitution and national development policies and programs," to protect the rights of
indigenous cultural communities to their ancestral lands in order to ensure their economic, social,
and cultural well-being.7
Among the assailed provisions in IPRA is its Section 3(a) which defines "ancestral domains" to
embrace "all areas generally belonging to ICCs/IPs comprising lands, inland waters, coastal
areas, and natural resources" including "ancestral lands, forest, pasture, residential,
agricultural, and other lands individually owned whether alienable and disposable or
otherwise,"
over
which
indigenous
cultural
communities/indigenous
peoples ("ICCs/IPs") could exercise virtual ownership and control.
IPRA effectively withdraws from the public domain the so-called ancestral domains covering
literally millions of hectares. The notion of community property would comprehend not only
matters of proprietary interest but also some forms of self-governance over the curved-out
territory. This concept is elaborated in Section 7 of the law which states that the "rights of
ownership and possession of ICCs/IPs to their ancestral domains shall be recognized and protected,"
subsumed under which would encompass the right of ownership (paragraph a); the right to
develop, control and use lands and natural resources, including "the right to negotiate the
terms and conditions for the exploration of natural resources in the areas for the purpose of
ensuring ecological, environmental protection and the conservation measures, pursuant to national
and customary laws;" (par. b); the right to stay in the territories (par. c); the right to return to
their abandoned lands in case of displacement (par. d); the right to regulate entry of
migrants (par. e); the right to claim parts of ancestral domains previously reserved (par. g);
and the right to resolve land conflicts in accordance primarily with customary law (par. h).
Concurrently, Section 57 states that ICCs/IPs shall be given "priority rights in the harvesting,
extraction, development or exploitation of any natural resources within the ancestral
domains." These provisions of IPRA, in their totality, are, in my view, beyond the context of the
fundamental law and virtually amount to an undue delegation, if not an unacceptable
abdication, of State authority over a significant area of the country and its patrimony.
Article XII of the 1987 Constitution expresses that all "lands of the public domain, waters,
minerals, coal, petroleum, and other mineral oils, all forces of potential energy, fisheries, forest
or timber, wildlife, flora and fauna, and other natural resources are owned by the State," and,
with the exception of agricultural lands, "shall not be alienated." It ordains that the "exploration,
development, and utilization of natural resources shall be under the full control and
supervision of the State."8
These provisions had roots in the 1935 Constitution which, along with some other specific mandates
in the 1935 Constitution, forming Article XII under the title "Conservation and Utilization of
Natural Resources", were derived largely from the report of the Committee on Nationalization and
Preservation of Lands and other Natural Resources. 9 According to the Committee report, among the
principles upon which these provisions were based, was "that the land, minerals, forest and other
natural resources constitute the exclusive heritage of the Filipino Nation," and should thereby "be
preserved for those under the sovereign authority of the Nation and for their posterity." 10 The
delegates to the 1934 Constitutional Convention were of the unanimous view that the "policy on
natural resources, being fundamental to the nations survival should not be left to the changing
mood of the lawmaking body."11
The 1987 Constitution, like the precursor provisions in the 1935 and 1973 Constitutions, thus
expresses thisregalian doctrine of the old, and the domainial doctrine of the new, that all lands and
natural resources belong to the state other than those which it recognizes to be of private
ownership. Except for agricultural lands of the public domain which alone may be alienated,
forest or timber, and mineral lands, as well as all other natural resources, of the country must
remain with the state, the exploration, development and utilization of which shall be subject to
its full control and supervision albeit allowing it to enter into co-production, joint venture or
production-sharing agreements, or into agreements with foreign-owned corporations involving
technical or financial assistance for large-scale exploration, development and utilization. 12
The decision of the United States Supreme Court in Cario vs. Insular Government,13 holding that a
parcel of land held since time immemorial by individuals under a claim of private ownership is
presumed never to have been public land and cited to downgrade the application of the regalian
doctrine, cannot override the collective will of the people expressed in the Constitution. It is in
them that sovereignty resides and from them that all government authority emanates. 14 It is not then
for a court ruling or any piece of legislation to be conformed to by the fundamental law, but it is for
the former to adapt to the latter, and it is the sovereign act that must, between them, stand
inviolate.
The second paragraph of Section 5 of Article XII of the Constitution allows Congress to provide
"for the applicability of customary laws governing property rights or relations in determining the
ownership and extent of ancestral domains." I do not see this statement as saying that Congress may
enact a law that would simply express that "customary laws shall govern" and end it there. Had it
been so, the Constitution could have itself easily provided without having to still commission
Congress to do it. Mr. Chief Justice Davide has explained this authority of Congress, during the
deliberations of the 1986 Constitutional Convention, thus:
"Mr. Davide. x x x Insofar as the application of the customary laws governing property rights or
relations in determining the ownership and extent of the ancestral domain is concerned, it is
respectfully submitted that the particular matter must be submitted to Congress. I understand that
the idea of Comm. Bennagen is for the possibility of the codification of these customary laws. So
before these are codified, we cannot now mandate that the same must immediately be applicable.
We leave it to Congress to determine the extent of the ancestral domain and the ownership thereof in
relation to whatever may have been codified earlier. So, in short, let us not put the cart ahead of the
horse."15
The constitutional aim, it seems to me, is to get Congress to look closely into the customary
laws and, with specificity and by proper recitals, to hew them to, and make them part of, the
stream of laws. The "due process clause," as I so understand it in Tanada vs. Tuvera16 would require
an apt publication of a legislative enactment before it is permitted to take force and effect. So, also,
customary laws, when specifically enacted to become part of statutory law, must first undergo that
publication to render them correspondingly binding and effective as such.
Undoubtedly, IPRA has several good points, and I would respectfully urge Congress to reexamine the law. Indeed, the State is exhorted to protect the rights of indigenous cultural
communities to their ancestral lands, a task that would entail a balancing of interest between
their specific needs and the imperatives of national interest.
WHEREFORE, I vote to grant the petition.
Footnotes
People vs. Vera, 65 Phil. 56, 89; Macasiano vs. National Housing Authority, 224 SCRA 236,
244.
1
Am Jur 189, p. 591, S. vD., 410 US 641, 35 L Ed 2d 536, 93 S Ct 1146.
Legaspi vs. Civil Service Commission, 150 SCRA 530, 540; Taada vs. Tuvera, 136 SCRA
27, 36, 37.
3
Defensor Santiago, Miriam, Constitutional Law, First Edition, 1994, p. 11; see also Rev. Fr.
Joaquin Bernas, S.J., on the 1987 Constitution of the Republic of the Philippines, 1996 Ed.,
pp. 336-337.
4
Oposa vs. Factoran, Jr., 224 SCRA 792.
Art. 11, Sec. 22.
Art. XII, Sec. 5.
Sec. 2.
II Aruego, The Framing of the Philippine Constitution, p. 594.
10
Ibid., p. 595.
11
Ibid., p. 600.
CONST., Art. XII, Sec. 2; Miners Association of the Philippines, Inc., vs. Factoran, Jr., 240
SCRA 100.
12
13
41 Phil. 935.
14
CONST., Art. II, Sec. 1.
15
4 Record of the Constitutional Commission 32.
16
146 SCRA 446.
SEPARATE OPINION
KAPUNAN, J.:
You ask if we own the land. . . How can you own that which will outlive you? Only the race own the
land because only the race lives forever. To claim a piece of land is a birthright of every man. The
lowly animals claim their place; how much more man? Man is born to live. Apu Kabunian, lord of
us all, gave us life and placed us in the world to live human lives. And where shall we obtain life?
From the land. To work (the land) is an obligation, not merely a right. In tilling the land, you
possess it. And so land is a grace that must be nurtured. To enrich it and make it fructify is the
eternal exhortation of Apu Kabunian to all his children. Land is sacred. Land is beloved. From its
womb springs life.
- Macli-ing Dulag, Chieftain of the Kalinga Tribe (quoted in Ponciano L. Bennagen, "Tribal
Filipinos" in Indigenous View of Land and the Environment, ed. Shelton H. Davis, the World Bank
Discussion Papers, No. 188, pp. 71-72.)
It is established doctrine that a statute should be construed whenever possible in harmony with,
rather than in violation of, the Constitution.1 The presumption is that the legislature intended to
enact a valid, sensible and just law and one which operates no further than may be necessary to
effectuate the specific purpose of the law.2
The challenged provisions of the Indigenous Peoples Rights Act (IPRA) must be construed in view
of such presumption of constitutionality. Further, the interpretation of these provisions should take
into account the purpose of the law, which is to give life to the constitutional mandate that the rights
of the indigenous peoples be recognized and protected.
The struggle of our indigenous peoples to reclaim their ancestral lands and domains and therefore,
their heritage, is not unique. It is one that they share with the red-skinned "Indians" of the United
States, with the aborigines of Australia, the Maori of New Zealand and the Sazmi of Sweden, to
name a few. Happily, the nations in which these indigenous peoples live all have enacted measures
in an attempt to heal an oppressive past by the promise of a progressive future. Thus has the
international community realized the injustices that have been perpetrated upon the indigenous
peoples. This sentiment among the family of nations is expressed in a number of documents, the
most recent and most comprehensive of which is the Draft United Nations Declaration on the Rights
of Indigenous Peoples which was adopted by the UN Sub-Commission on Prevention of
Discrimination and Protection of Minorities by its resolution on August 26, 1994. Among the rights
recognized by the UN Draft is the restitution of lands, territories and even the resources which the
indigenous peoples have traditionally owned or otherwise occupied or used, and which have been
confiscated, occupied, used or damaged without the free and informed consent of the indigenous
peoples.
A Historical Backdrop on the Indigenous Peoples
The term "indigenous" traces its origin to the Old Latin word indu, meaning "within." In the sense
the term has come to be used, it is nearer in meaning to the Latin word indigenus, which means
"native."3 "Indigenous" refers to that which originated or has been produced naturally in a particular
land, and has not been introduced from the outside.4 In international law, the definition of what
constitutes "indigenous peoples" attains some degree of controversy. No definition of the term
"indigenous peoples" has been adopted by the United Nations (UN), although UN practice has been
guided by a working definition in the 1986 Report of UN Special Rapporteur Martinez Cobo:5
Indigenous communities, peoples and nations are those which, having a historical continuity with
pre-invasion and pre-colonial societies that developed on their territories, consider themselves
distinct from other sections of the societies now prevailing in those territories, or parts of them.
They form at present non-dominant sections of society and are determined to preserve, develop and
transmit to future generations their ancestral territories, and their ethnic identity, as the basis of their
continued existence as peoples, in accordance with their own cultural patterns, social institutions
and legal systems.
This historical continuity may consist of the continuation, for an extended period reaching into the
present, of one or more of the following factors:
(a) Occupation of ancestral lands, or at least of part of them;
(b) Common ancestry with the original occupants of these lands;
(c) Culture in general, or in specific manifestations (such as religion, living under a tribal
system, membership of an indigenous community, dress, means of livelihood, life-style, etc.);
(d) Language (whether used as the only language, as mother-tongue, as the habitual means of
communication at home or in the family, or as the main, preferred, habitual, general or
normal language);
(e) Residence in certain parts of the country; or in certain regions of the world;
(f) Other relevant facts.6
In Philippine constitutional law, the term "indigenous peoples" pertains to those groups of Filipinos
who have retained a high degree of continuity from pre-Conquest culture. 7 Philippine legal history,
however, has not been kind to the indigenous peoples, characterized them as
"uncivilized,"8 "backward people,"9 with "barbarous practices"10 and "a low order of intelligence."11
Drawing inspiration from both our fundamental law and international law, IPRA now employs the
politically-correct conjunctive term "indigenous peoples/indigenous cultural communities" as
follows:
Sec. 3. Definition of Terms.- For purposes of this Act, the following terms shall mean:
xxx
(h) Indigenous peoples/Indigenous cultural communities. - refer to a group of people or
homogenous societies identified by self-ascription and ascription by others, who have continuously
lived as organized community on communally bounded and defined territory, and who have, under
claims of ownership since time immemorial, occupied, possessed and utilized such territories,
sharing common bonds of language, customs, traditions, and other distinctive cultural traits, or who
have, through resistance to political, social and cultural inroads of colonization, non-indigenous
religions and cultures, became historically differentiated from the majority of Filipinos. Indigenous
peoples shall likewise include peoples who are regarded as indigenous on account of their descent
from the populations which inhabited the country at the time of conquest or colonization, or at the
time of inroads of non-indigenous religions and cultures, or the establishment of present State
boundaries, who retain some or all of their own social, economic, cultural and political institutions,
but who may have been displaced from their traditional domains or who may have resettled outside
their ancestral domains x x x.
Long before the Spaniards set foot in these islands, the indigenous peoples were already plowing
our soil and hunting in our forests. The Filipinos of Aeta and Malay stock, who were the original
inhabitants of our archipelago, were, at that time, practicing a native culture. From the time the
Spaniards arrived up to the early part of the American regime, 12 these native inhabitants resisted
foreign invasion, relentlessly fighting for their lands. Today, from the remote uplands of Northern
Luzon, to Palawan, Mindoro and Mindanao, the indigenous peoples continue to live on and cultivate
their ancestral lands, the lands of their forefathers.
Though Filipinos today are essentially of the same stock as the indigenous peoples, our national
culture exhibits only the last vestiges of this native culture. Centuries of colonial rule and
neocolonial domination have created a discernible distinction between the cultural majority and the
group of cultural minorities.13 The extant Philippine national culture is the culture of the majority; its
indigenous roots were replaced by foreign cultural elements that are decidedly pronounced, if not
dominant.14 While the culture of the majority reoriented itself to Western influence, the culture of the
minorities has retained its essentially native character.
One of every six Filipinos is a member of an indigenous cultural community. Around twelve million
Filipinos are members of the one hundred and ten or so indigenous cultural
communities,15 accounting for more than seventeen per centum of the estimated seventy million
Filipinos16 in our country. Sadly, the indigenous peoples are one of the poorest sectors of Philippine
society. The incidence of poverty and malnutrition among them is significantly higher than the
national average. The indigenous peoples are also among the most powerless. Perhaps because of
their inability to speak the language of law and power, they have been relegated to the fringes of
society. They have little, if any, voice in national politics and enjoy the least protection from
economic exploitation.
The Constitutional Policies on Indigenous Peoples
The framers of the 1987 Constitution, looking back to the long destitution of our less fortunate
brothers, fittingly saw the historic opportunity to actualize the ideals of people empowerment and
social justice, and to reach out particularly to the marginalized sectors of society, including the
indigenous peoples. They incorporated in the fundamental law several provisions recognizing and
protecting the rights and interests of the indigenous peoples, to wit:
Sec. 22. The State recognizes and promotes the rights of indigenous peoples within the framework
of national unity and development.17
Sec. 5. The State, subject to the provisions of this Constitution and national development policies
and programs, shall protect the rights of indigenous cultural communities to their ancestral lands to
ensure their economic, social, and cultural well-being.
The Congress may provide for the applicability of customary laws governing property rights and
relations in determining the ownership and extent of ancestral domains.18
Sec. 1. The Congress shall give the highest priority to the enactment of measures that protect and
enhance the right of all the people to human dignity, reduce social, economic and political
inequalities, and remove cultural inequities by equitably diffusing wealth and political power for the
common good.
To this end, the State shall regulate the acquisition, ownership, use and disposition of property and
its increments.19
Sec. 6. The State shall apply the principles of agrarian reform or stewardship, whenever applicable
in accordance with law, in the disposition and utilization of other natural resources, including lands
of the public domain under lease or concession, subject to prior rights, homestead rights of small
settlers, and the rights of indigenous communities to their ancestral lands. 20
Sec. 17. The State shall recognize, respect, and protect the rights of indigenous cultural communities
to preserve and develop their cultures, traditions, and institutions. It shall consider these rights in the
formulation of national plans and policies.21
Sec. 12. The Congress may create a consultative body to advise the President on policies affecting
indigenous cultural communities, the majority of the members of which shall come from such
communities.22
IPRA was enacted precisely to implement the foregoing constitutional provisions. It provides,
among others, that the State shall recognize and promote the rights of indigenous peoples within the
framework of national unity and development, protect their rights over the ancestral lands and
ancestral domains and recognize the applicability of customary laws governing property rights or
relations in determining the ownership and extent of the ancestral domains. 23 Moreover, IPRA
enumerates the civil and political rights of the indigenous peoples; 24 spells out their social and
cultural rights;25 acknowledges a general concept of indigenous property right and recognizes title
thereto;26 and creates the NCIP as an independent agency under the Office of the President. 27
Preliminary Issues
A. The petition presents an actual controversy.
The time-tested standards for the exercise of judicial review are: (1) the existence of an appropriate
case; (2) an interest personal and substantial by the party raising the constitutional question; (3) the
plea that the function be exercised at the earliest opportunity; and (4) the necessity that the
constitutional question be passed upon in order to decide the case.28
Courts can only decide actual controversies, not hypothetical questions or cases. 29 The threshold
issue, therefore, is whether an "appropriate case" exists for the exercise of judicial review in the
present case.
An "actual case or controversy" means an existing case or controversy which is both ripe for
resolution and susceptible of judicial determination, and that which is not conjectural or
anticipatory,30 or that which seeks to resolve hypothetical or feigned constitutional problems. 31 A
petition raising a constitutional question does not present an "actual controversy," unless it alleges a
legal right or power. Moreover, it must show that a conflict of rights exists, for inherent in the term
"controversy" is the presence of opposing views or contentions. 32 Otherwise, the Court will be
forced to resolve issues which remain unfocused because they lack such concreteness provided
when a question emerges precisely framed from a clash of adversary arguments exploring every
aspect of a multi-faceted situation embracing conflicting and demanding interests. 33 The controversy
must also be justiciable; that is, it must be susceptible of judicial determination. 34
In the case at bar, there exists a live controversy involving a clash of legal rights. A law has been
enacted, and the Implementing Rules and Regulations approved. Money has been appropriated and
the government agencies concerned have been directed to implement the statute. It cannot be
successfully maintained that we should await the adverse consequences of the law in order to
consider the controversy actual and ripe for judicial resolution. It is precisely the contention of the
petitioners that the law, on its face, constitutes an unconstitutional abdication of State ownership
over lands of the public domain and other natural resources. Moreover, when the State machinery is
set into motion to implement an alleged unconstitutional statute, this Court possesses sufficient
authority to resolve and prevent imminent injury and violation of the constitutional process.
B. Petitioners, as citizens and taxpayers, have the requisite standing to raise the constitutional
questions herein.
In addition to the existence of an actual case or controversy, a person who assails the validity of a
statute must have a personal and substantial interest in the case, such that, he has sustained, or will
sustain, a direct injury as a result of its enforcement. 35 Evidently, the rights asserted by petitioners as
citizens and taxpayers are held in common by all the citizens, the violation of which may result only
in a "generalized grievance".36 Yet, in a sense, all citizens and taxpayers suits are efforts to air
generalized grievances about the conduct of government and the allocation of power.37
In several cases, the Court has adopted a liberal attitude with regard to standing. 38 The proper party
requirement is considered as merely procedural, 39 and the Court has ample discretion with regard
thereto.40 As early as 1910, the Court in the case of Severino vs. Governor General 41 held:
x x x When the relief is sought merely for the protection of private rights, the relator must show
some personal or special interest in the subject matter, since he is regarded as the real party in
interest and his right must clearly appear. Upon the other hand, when the question is one of public
right and the object of the mandamus is to procure the enforcement of a public duty, the people are
regarded as the real party in interest, and the relator at whose instigation the proceedings are
instituted need not show that he has any legal or special interest in the result, it being
sufficient to show that he is a citizen and as such interested in the execution of the laws. 42
This Court has recognized that a "public right," or that which belongs to the people at large, may
also be the subject of an actual case or controversy. In Severino, we ruled that a private citizen may
enforce a "public right" in behalf of other citizens. We opined therein that:
The right which [petitioner] seeks to enforce is not greater or different from that of any other
qualified elector in the municipality of Silay. It is also true that the injury which he would suffer in
case he fails to obtain the relief sought would not be greater or different from that of the other
electors; but he is seeking to enforce a public right as distinguished from a private right. The real
party in interest is the public, or the qualified electors of the town of Silay. Each elector has the
same right and would suffer the same injury. Each elector stands on the same basis with
reference to maintaining a petition whether or not the relief sought by the relator should be
granted.43
In Taada v. Tuvera,44 the Court enforced the "public right" to due process and to be informed of
matters of public concern.
In Garcia vs. Board of Investments,45 the Court upheld the "public right" to be heard or consulted on
matters of national concern.
In Oposa v. Factoran,46 the Court recognized the "public right" of citizens to "a balanced and
healthful ecology which, for the first time in our nations constitutional history, is solemnly
incorporated in the fundamental law." 47 Mr. Justice (now Chief Justice) Hilario G. Davide, Jr.,
delivering the opinion of the Court, stated that:
Such a right belongs to a different category of rights altogether for it concerns nothing less than selfpreservation and self-perpetuation-aptly and fittingly stressed by petitioners-the advancement of
which may even be said to predate all governments and constitutions. As a matter of fact, these
basic rights need not even be written in the Constitution for they are assumed to exist from the
inception of humankind.48
Petitioners, as citizens, possess the "public right" to ensure that the national patrimony is not
alienated and diminished in violation of the Constitution. Since the government, as the guardian of
the national patrimony, holds it for the benefit of all Filipinos without distinction as to ethnicity, it
follows that a citizen has sufficient interest to maintain a suit to ensure that any grant of concessions
covering the national economy and patrimony strictly complies with constitutional requirements.
Thus, the preservation of the integrity and inviolability of the national patrimony is a proper subject
of a citizens suit.
In addition, petitioners, as taxpayers, possess the right to restrain officials from wasting public
funds through the enforcement of an unconstitutional statute. It is well-settled that a taxpayer has
the right to enjoin public officials from wasting public funds through the implementation of an
unconstitutional statute,49 and by necessity, he may assail the validity of a statute appropriating
public funds.50 The taxpayer has paid his taxes and contributed to the public coffers and, thus, may
inquire into the manner by which the proceeds of his taxes are spent. The expenditure by an official
of the State for the purpose of administering an invalid law constitutes a misapplication of such
funds.51
The IPRA appropriates funds as indicated in its title: "An Act to Recognize, Protect and Promote the
Rights of Indigenous Cultural Communities/Indigenous Peoples, Creating the National Commission
on Indigenous Peoples, Establishing Implementing Mechanisms, Appropriating Funds Therefor,
and for Other Purposes." In the same manner, Section 79 authorizes for the expenditure of public
funds by providing that "the amount necessary to finance [its] initial implementation shall be
charged against the current year's appropriation for the Office for Northern Cultural Communities
(the "ONCC") and the Office for Southern Cultural Communities (the "OSCC")," 52which were
merged as organic offices of the NCIP.53 Thus, the IPRA is a valid subject of a taxpayers suit.
C. The petition for prohibition and mandamus is not an improper remedy.
Prohibition is an extraordinary writ directed against any tribunal, corporation, board, officer or
person, whether exercising judicial, quasi-judicial or ministerial functions, ordering said entity or
person to desist from further proceedings when said proceedings are without or in excess of said
entitys or persons jurisdiction, or are accompanied with grave abuse of discretion, and there is no
appeal or any other plain, speedy and adequate remedy in the ordinary course of law. 54 Mandamus,
on the other hand, is an extraordinary writ commanding a tribunal, corporation, board, officer or
person, immediately or at some other specified time, to do the act required to be done, when said
entity or person unlawfully neglects the performance of an act which the law specifically enjoins as
a duty resulting from an office, trust or station, or when said entity or person unlawfully excludes
another from the use and enjoyment of a right or office to which such other is entitled, and there is
no other plain, speedy and adequate remedy in the ordinary course of law.55
In this case, the petitioners pray that respondents be restrained from implementing the challenged
provisions of the IPRA and its Implementing Rules and the assailed DENR Circular No. 2, series of
1998, and that the same officials be enjoined from disbursing public funds for the implementation of
the said law and rules. They further ask that the Secretary of the DENR be compelled to perform his
duty to control and supervise the activities pertaining to natural resources.
Prohibition will lie to restrain the public officials concerned from implementing the questioned
provisions of the IPRA and from disbursing funds in connection therewith if the law is found to be
unconstitutional. Likewise,mandamus will lie to compel the Secretary of the DENR to perform his
duty to control and supervise the exploration, development, utilization and conservation of the
countrys natural resources. Consequently, the petition for prohibition and mandamus is not an
improper remedy for the relief sought.
D. Notwithstanding the failure of petitioners to observe the hierarchy of courts, the Court assumes
jurisdiction over the petition in view of the importance of the issues raised therein.
Between two courts of concurrent original jurisdiction, it is the lower court that should initially pass
upon the issues of a case. That way, as a particular case goes through the hierarchy of courts, it is
shorn of all but the important legal issues or those of first impression, which are the proper subject
of attention of the appellate court. This is a procedural rule borne of experience and adopted to
improve the administration of justice.
This Court has consistently enjoined litigants to respect the hierarchy of courts. Although this Court
has concurrent jurisdiction with the Regional Trial Courts and the Court of Appeals to issue writs
of certiorari, prohibition, mandamus, quo warranto, habeas corpus and injunction,56 such
concurrence does not give a party unrestricted freedom of choice of court forum. The resort to this
Courts primary jurisdiction to issue said writs shall be allowed only where the redress desired
cannot be obtained in the appropriate courts or where exceptional and compelling circumstances
justify such invocation.57 We held in People v. Cuaresma58 that:
A becoming regard for judicial hierarchy most certainly indicates that petitions for the issuance of
extraordinary writs against first level ("inferior") courts should be filed with the Regional Trial
Court, and those against the latter, with the Court of Appeals. A direct invocation of the Supreme
Courts original jurisdiction to issue these writs should be allowed only where there are special
and important reasons therefor, clearly and specifically set out in the petition. This is
established policy. It is a policy necessary to prevent inordinate demands upon the Courts time and
attention which are better devoted to those matters within its exclusive jurisdiction, and to prevent
further over-crowding of the Courts docket x x x.59 (Emphasis supplied.)
IPRA aims to rectify the historical injustice inflicted upon indigenous peoples. Its impact upon the
lives not only of the indigenous peoples but also upon the lives of all Filipinos cannot be denied.
The resolution of this case by the Court at the earliest opportunity is necessary if the aims of the law
are to be achieved. This reason is compelling enough to allow petitioners invocation of this Courts
jurisdiction in the first instance.
Substantive Issues
Primary Issue
The issue of prime concern raised by petitioners and the Solicitor General revolves around the
constitutionality of certain provisions of IPRA, specifically Sections 3(a), 3(b), 5, 6, 7, 8, 57, 58 and
59. These provisions allegedly violate Section 2, Article XII of the Constitution, which states:
Sec. 2. All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all
forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural
resources are owned by the State. With the exception of agricultural lands, all other natural
resources shall not be alienated. The exploration, development, and utilization of natural resources
shall be under the full control and supervision of the State. The State may directly undertake such
activities, or it may enter into co-production, joint venture, or production-sharing agreements with
Filipino citizens, or corporations or associations at least sixty per centum of whose capital is owned
by such citizens. Such agreements may be for a period not exceeding twenty-five years, renewable
for not more than twenty-five years, and under such terms and conditions as may be provided by
law. In cases of water rights for irrigation, water supply, fisheries, or industrial uses other than the
development of water power, beneficial use may be the measure and limit of the grant.
The State shall protect the nations marine wealth in its archipelagic waters, territorial sea, and
The Congress, may, by law, allow small-scale utilization of natural resources by Filipino citizens, as
well as cooperative fish farming, with priority to subsistence fishermen and fishworkers in rivers,
lakes, bays and lagoons.
The President may enter into agreements with foreign-owned corporations involving either technical
or financial assistance for large-scale exploration, development and utilization of minerals,
petroleum, and other mineral oils according to the general terms and conditions provided by law,
based on real contributions to the economic growth and general welfare of the country. In such
agreements, the State shall promote the development and use of local scientific and technical
resources.
The President shall notify the Congress of every contract entered into in accordance with this
provision, within thirty days from its execution.
Under IPRA, indigenous peoples may obtain the recognition of their right of ownership 60 over
ancestral lands and ancestral domains by virtue of native title. 61 The term "ancestral lands" under
the statute refers to landsoccupied by individuals, families and clans who are members of
indigenous cultural communities, including residential lots, rice terraces or paddies, private forests,
swidden farms and tree lots. These lands are required to have been "occupied, possessed and
utilized" by them or through their ancestors "since time immemorial, continuously to the
present".62 On the other hand, "ancestral domains" is defined as areas generally belonging to
indigenous cultural communities, including ancestral lands, forests, pasture, residential and
agricultural lands, hunting grounds, worship areas, and lands no longer occupied exclusively by
indigenous cultural communities but to which they had traditional access, particularly the home
ranges of indigenous cultural communities who are still nomadic or shifting cultivators. Ancestral
domains also include inland waters, coastal areas and natural resources therein. 63 Again, the same
are required to have been "held under a claim of ownership, occupied or possessed by ICCs/IPs, by
themselves or through their ancestors, communally or individually since time immemorial,
continuously to the present".64 Under Section 56, property rights within the ancestral domains
already existing and/or vested upon effectivity of said law "shall be recognized and respected."
Ownership is the crux of the issue of whether the provisions of IPRA pertaining to ancestral lands,
ancestral domains, and natural resources are unconstitutional. The fundamental question is, who,
between the State and the indigenous peoples, are the rightful owners of these properties?
It bears stressing that a statute should be construed in harmony with, and not in violation, of the
fundamental law.65 The reason is that the legislature, in enacting a statute, is assumed to have acted
within its authority and adhered to the constitutional limitations. Accordingly, courts should
presume that it was the intention of the legislature to enact a valid, sensible, and just law and one
which operates no further than may be necessary to effectuate the specific purpose of the law.66
A. The provisions of IPRA recognizing the ownership of indigenous peoples over the ancestral lands
and ancestral domains are not unconstitutional.
In support of their theory that ancestral lands and ancestral domains are part of the public domain
and, thus, owned by the State, pursuant to Section 2, Article XII of the Constitution, petitioners and
the Solicitor General advance the following arguments:
First, according to petitioners, the King of Spain under international law acquired exclusive
dominion over the Philippines by virtue of discovery and conquest. They contend that the Spanish
King under the theory of jura regalia, which was introduced into Philippine law upon Spanish
conquest in 1521, acquired title to all the lands in the archipelago.
Second, petitioners and the Solicitor General submit that ancestral lands and ancestral domains are
owned by the State. They invoke the theory of jura regalia which imputes to the State the
ownership of all lands and makes the State the original source of all private titles. They argue that
the Philippine State, as successor to Spain and the United States, is the source of any asserted right
of ownership in land.
Third, petitioners and the Solicitor General concede that the Cario doctrine exists. However,
petitioners maintain that the doctrine merely states that title to lands of the public domain may be
acquired by prescription. The Solicitor General, for his part, argues that the doctrine applies only to
alienable lands of the public domain and, thus, cannot be extended to other lands of the public
domain such as forest or timber, mineral lands, and national parks.
Fourth, the Solicitor General asserts that even assuming that native title over ancestral lands and
ancestral domains existed by virtue of the Cario doctrine, such native title was extinguished upon
the ratification of the 1935 Constitution.
Fifth, petitioners admit that Congress is mandated under Section 5, Article XII of the Constitution to
protect that rights of indigenous peoples to their ancestral lands and ancestral domains. However,
they contend that the mandate is subject to Section 2, Article XII and the theory of jura
regalia embodied therein. According to petitioners, the recognition and protection under R.A. 8371
of the right of ownership over ancestral lands and ancestral domains is far in excess of the
legislative power and constitutional mandate of Congress.
Finally, on the premise that ancestral lands and ancestral domains are owned by the State,
petitioners posit that R.A. 8371 violates Section 2, Article XII of the Constitution which prohibits
the alienation of non-agricultural lands of the public domain and other natural resources.
I am not persuaded by these contentions.
Undue reliance by petitioners and the Solicitor General on the theory of jura regalia is
understandable. Not only is the theory well recognized in our legal system; it has been regarded,
almost with reverence, as the immutable postulate of Philippine land law. It has been incorporated
into our fundamental law and has been recognized by the Court.67
Generally, under the concept of jura regalia, private title to land must be traced to some grant,
express or implied, from the Spanish Crown or its successors, the American Colonial government,
and thereafter, the Philippine Republic. The belief that the Spanish Crown is the origin of all land
titles in the Philippines has persisted because title to land must emanate from some source for it
cannot issue forth from nowhere.68
In its broad sense, the term "jura regalia" refers to royal rights,69 or those rights which the King has
by virtue of his prerogatives.70 In Spanish law, it refers to a right which the sovereign has over
anything in which a subject has a right of property or propriedad.71 These were rights enjoyed
during feudal times by the king as the sovereign.
The theory of the feudal system was that title to all lands was originally held by the King, and while
the use of lands was granted out to others who were permitted to hold them under certain
conditions, the King theoretically retained the title. 72 By fiction of law, the King was regarded as the
original proprietor of all lands, and the true and only source of title, and from him all lands were
held.73 The theory of jura regalia was therefore nothing more than a natural fruit of conquest.74
The Regalian theory, however, does not negate native title to lands held in private ownership since
time immemorial. In the landmark case of Cario vs. Insular Government75 the United States
Supreme Court, reversing the decision 76of the pre-war Philippine Supreme Court, made the
following pronouncement:
x x x Every presumption is and ought to be taken against the Government in a case like the present.
It might, perhaps, be proper and sufficient to say that when, as far back as testimony or memory
goes, the land has been held by individuals under a claim of private ownership, it will be
presumed to have been held in the same way from before the Spanish conquest, and never to
have been public land. x x x.77 (Emphasis supplied.)
The above ruling 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.
In Cario, an Igorot by the name of Mateo Cario applied for registration in his name of an
ancestral land located in Benguet. The applicant established that he and his ancestors had lived on
the land, had cultivated it, and had used it as far they could remember. He also proved that they had
all been recognized as owners, the land having been passed on by inheritance according to native
custom. However, neither he nor his ancestors had any document of title from the Spanish Crown.
The government opposed the application for registration, invoking the theory of jura regalia. On
appeal, the United States Supreme Court held that the applicant was entitled to the registration of his
native title to their ancestral land.
Cario was decided by the U.S. Supreme Court in 1909, at a time when decisions of the U.S. Court
were binding as precedent in our jurisdiction. 78 We applied the Cario doctrine in the 1946 case
of Oh Cho vs. Director of Lands,79 where we stated that "[a]ll lands that were not acquired from the
Government either by purchase or by grant, belong to the public domain, but [a]n exception to the
rule would be any land that should have been in the possession of an occupant and of his
predecessors in interest since time immemorial, for such possession would justify the presumption
that the land had never been part of the public domain or that it had been private property even
before the Spanish conquest."80
Petitioners however aver that the U.S. Supreme Courts ruling in Cario was premised on the fact
that the applicant had complied with the requisites of acquisitive prescription, having established
that he and his predecessors-in-interest had been in possession of the property since time
immemorial. In effect, petitioners suggest that title to the ancestral land applied for by Cario was
transferred from the State, as original owner, to Cario by virtue of prescription. They conclude that
the doctrine cannot be the basis for decreeing "by mere legislative fiatthat ownership of vast tracts
of land belongs to [indigenous peoples] without judicial confirmation."81
The Solicitor General, for his part, claims that the Cario doctrine applies only to alienable lands of
the public domain and, as such, cannot be extended to other lands of the public domain such as
forest or timber, mineral lands, and national parks.
There is no merit in these contentions.
A proper reading of Cario would show that the doctrine enunciated therein applies only to lands
which have always been considered as private, and not to lands of the public domain, whether
alienable or otherwise. A distinction must be made between ownership of land under native title and
ownership by acquisitive prescription against the State. Ownership by virtue of native title
presupposes that the land has been held by its possessor and his predecessors-in-interest in the
concept of an owner since time immemorial. The land is not acquired from the State, that is, Spain
or its successors-in-interest, the United States and the Philippine Government. There has been no
transfer of title from the State as the land has been regarded as private in character as far back as
memory goes. In contrast, ownership of land by acquisitive prescription against the State involves a
conversion of the character of the property from alienable public land to private land, which
presupposes a transfer of title from the State to a private person. Since native title assumes that the
property covered by it is private land and is deemed never to have been part of the public domain,
the Solicitor Generals thesis that native title under Carioapplies only to lands of the public domain
is erroneous. Consequently, the classification of lands of the public domain into agricultural, forest
or timber, mineral lands, and national parks under the Constitution 82 is irrelevant to the application
of the Cario doctrine because the Regalian doctrine which vests in the State ownership of lands of
the public domain does not cover ancestral lands and ancestral domains.
Legal history supports the Cario doctrine.
When Spain acquired sovereignty over the Philippines by virtue of its discovery and occupation
thereof in the 16th century and the Treaty of Tordesillas of 1494 which it entered into with
Portugal,83 the continents of Asia, the Americas and Africa were considered as terra nullius although
already populated by other peoples. 84 The discovery and occupation by the European States, who
were then considered as the only members of the international community of civilized nations, of
lands in the said continents were deemed sufficient to create title under international law.85
Although Spain was deemed to have acquired sovereignty over the Philippines, this did not mean
that it acquired title to all lands in the archipelago. By virtue of the colonial laws of Spain, the
Spanish Crown was considered to have acquired dominion only over the unoccupied and unclaimed
portions of our islands.86
In sending the first expedition to the Philippines, Spain did not intend to deprive the natives of their
property. Miguel Lopez de Legazpi was under instruction of the Spanish King to do no harm to the
natives and to their property. In this regard, an authority on the early Spanish colonial period in the
Philippines wrote:
The government of [the King of Spain] Philip II regarded the Philippines as a challenging
opportunity to avoid a repetition of the sanguinary conquests of Mexico and Peru. In his written
instructions for the Adelantado Legazpi, who commanded the expedition, Philip II envisaged a
bloodless pacification of the archipelago. This extraordinary document could have been lifted
almost verbatim from the lectures of the Dominican theologian, Francisco de Vitoria, delivered in
the University of Salamanca. The King instructed Legazpi to inform the natives that the Spaniards
had come to do no harm to their persons or to their property. The Spaniards intended to live among
them in peace and in friendship and "to explain to them the law of Jesus Christ by which they will
be saved." Although the Spanish expedition could defend themselves if attacked, the royal
instructions admonished the commander to commit no aggressive act which might arouse native
hostility.87
Spanish colonial laws recognized and respected Filipino landholdings including native land
occupancy.88 Thus, the Recopilacin de Leyes de las Indias expressly conferred ownership of lands
already held by the natives.89The royal decrees of 1880 and 1894 did not extinguish native title to
land in the Philippines. The earlier royal decree, dated June 25, 1880, provided that all those in
"unlawful possession of royal lands" must legalize their possession by means of adjustment
proceedings,90 and within the period specified. The later royal decree, dated February 13, 1894,
otherwise known as the Maura Law, declared that titles that were capable of adjustment under the
royal decree of 1880, but for which adjustment was not sought, were forfeited. Despite the harsh
wording of the Maura Law, it was held in the case of Cario that the royal decree of 1894 should
not be construed as confiscation of title, but merely as the withdrawal of the privilege of registering
such title.91
Neither was native title disturbed by the Spanish cession of the Philippines to the United States,
contrary to petitioners assertion that the US merely succeeded to the rights of Spain, including the
latters rights over lands of the public domain.92 Under the Treaty of Paris of December 10, 1898, the
cession of the Philippines did not impair any right to property existing at the time. 93 During the
American colonial regime, native title to land was respected, even protected. The Philippine Bill of
1902 provided that property and rights acquired by the US through cession from Spain were to be
administered for the benefit of the Filipinos. 94 In obvious adherence to libertarian principles,
McKinleys Instructions, as well as the Philippine Bill of 1902, contained a bill of rights embodying
the safeguards of the US Constitution. One of these rights, which served as an inviolable rule upon
every division and branch of the American colonial government in the Philippines, 95 was that "no
person shall be deprived of life, liberty, or property without due process of law." 96 These vested
rights safeguarded by the Philippine Bill of 1902 were in turn expressly protected by the due
process clause of the 1935 Constitution. Resultantly, property rights of the indigenous peoples over
their ancestral lands and ancestral domains were firmly established in law.
Nonetheless, the Solicitor General takes the view that the vested rights of indigenous peoples to
their ancestral lands and domains were "abated by the direct act by the sovereign Filipino people of
ratifying the 1935 Constitution."97 He advances the following arguments:
The Sovereign, which is the source of all rights including ownership, has the power to restructure
the consolidation of rights inherent in ownership in the State. Through the mandate of the
Constitutions that have been adopted, the State has wrested control of those portions of the natural
resources it deems absolutely necessary for social welfare and existence. It has been held that the
State may impair vested rights through a legitimate exercise of police power.
Vested rights do not prohibit the Sovereign from performing acts not only essential to but
determinative of social welfare and existence. To allow otherwise is to invite havoc in the
established social system. x x x
Time-immemorial possession does not create private ownership in cases of natural resources that
have been found from generation to generation to be critical to the survival of the Sovereign and its
agent, the State.98
Stated simply, the Solicitor Generals argument is that the State, as the source of all titles to land,
had the power to re-vest in itself, through the 1935 Constitution, title to all lands, including ancestral
lands and ancestral domains. While the Solicitor General admits that such a theory would
necessarily impair vested rights, he reasons out that even vested rights of ownership over ancestral
lands and ancestral domains are not absolute and may be impaired by the legitimate exercise of
police power.
I cannot agree. The text of the provision of the 1935 Constitution invoked by the Solicitor General,
while embodying the theory of jura regalia, is too clear for any misunderstanding. It simply
declares that "all agricultural, timber, and mineral lands of the public domain, waters, minerals, coal,
petroleum, and other mineral oils, all forces of potential energy, and other natural resources of the
Philippines belong to the State."99 Nowhere does it state that certain lands which are "absolutely
necessary for social welfare and existence," including those which are notpart of the public domain,
shall thereafter be owned by the State. If there is any room for constitutional construction, the
provision should be interpreted in favor of the preservation, rather than impairment or
extinguishment, of vested rights. Stated otherwise, Section 1, Article XII of the 1935 Constitution
cannot be construed to mean that vested right which had existed then were extinguished and that the
landowners were divested of their lands, all in the guise of "wrest[ing] control of those portions of
the natural resources [which the State] deems absolutely necessary for social welfare and existence."
On the contrary, said Section restated the fundamental rule against the diminution of existing rights
by expressly providing that the ownership of lands of the public domain and other natural resources
by the State is "subject to any existing right, grant, lease, or concessions." The "existing rights" that
were intended to be protected must, perforce, include the right of ownership by indigenous peoples
over their ancestral lands and domains. The words of the law should be given their ordinary or usual
meaning,100 and the term "existing rights" cannot be assigned an unduly restrictive definition.
Petitioners concede that Congress is mandated under Section 5, Article XII of the 1987
Constitution101to protect the rights of indigenous peoples to their ancestral lands and ancestral
domains. Nonetheless, they contend that the recognition and protection under IPRA of the right of
ownership of indigenous peoples over ancestral lands and ancestral domains are far in excess of the
legislative power and constitutional mandate of the Congress,102since such recognition and
protection amount to the alienation of lands of the public domain, which is proscribed under Section
2, Article XII of the Constitution.
Section 5, Article XII of the Constitution expresses the sovereign intent to "protect the rights of
indigenous peoples to their ancestral lands." In its general and ordinary sense, the term "right" refers
to any legally enforceable claim.103 It is a power, privilege, faculty or demand inherent in one person
and incident upon another.104 When used in relation to property, "right" includes any interest in or
title to an object, or any just and legal claim to hold, use and enjoy it. 105 Said provision in the
Constitution cannot, by any reasonable construction, be interpreted to exclude the protection of
the right of ownership over such ancestral lands. For this reason, Congress cannot be said to have
exceeded its constitutional mandate and power in enacting the provisions of IPRA, specifically
Sections 7(a) and 8, which recognize the right of ownership of the indigenous peoples over ancestral
lands.
The second paragraph of Section 5, Article XII also grants Congress the power to "provide for the
applicability of customary laws governing property rights or relations in determining the ownership
and extent of ancestral domains." In light of this provision, does Congress have the power to decide
whether ancestral domains shall be private property or part of the public domain? Also, does
Congress have the power to determine whether the "extent" of ancestral domains shall include the
natural resources found therein?
It is readily apparent from the constitutional records that the framers of the Constitution did not
intend Congress to decide whether ancestral domains shall be public or private property. Rather,
they acknowledged that ancestral domains shall be treated as private property, and that customary
laws shall merely determine whether such private ownership is by the entire indigenous cultural
community, or by individuals, families, or clans within the community. The discussion below
between Messrs. Regalado and Bennagen and Mr. Chief Justice Davide, then members of the 1986
Constitutional Commission, is instructive:
MR. REGALADO. Thank you, Madame President. May I seek some clarifications from either
Commissioner Bennagen or Commissioner Davide regarding this phrase "CONGRESS SHALL
PROVIDE FOR THE APPLICABILITY OF CUSTOMARY LAWS GOVERNING PROPERTY
RIGHTS OR RELATIONS in determining the ownership and extent of the ancestral domain,"
because ordinarily it is the law on ownership and the extent thereof which determine the property
rights or relations arising therefrom. On the other hand, in this proposed amendment the
phraseology is that it is the property rights or relations which shall be used as the basis in
determining the ownership and extent of the ancestral domain. I assume there must be a certain
difference in the customary laws and our regular civil laws on property.
MR. DAVIDE. That is exactly the reason, Madam President, why we will leave it to Congress to
make the necessary exception to the general law on property relations.
MR. REGALADO. I was thinking if Commissioner Bennagen could give us an example of such a
customary law wherein it is the property rights and relations that determine the ownership and the
extent of that ownership, unlike the basic fundamental rule that it is the ownership and the extent of
ownership which determine the property rights and relations arising therefrom and consequent
thereto. Perhaps, these customary laws may have a different provision or thrust so that we could
make the corresponding suggestions also by way of an amendment.
MR. DAVIDE. That is exactly my own perception.

MR. BENNAGEN. Let me put it this way.
There is a range of customary laws governing certain types of ownership. There would be
ownership based on individuals, on clan or lineage, or on community. And the thinking
expressed in the consultation is that this should be codified and should be recognized in relation to
existing national laws. That is essentially the concept. 106 (Emphasis supplied.)
The intention to treat ancestral domains as private property is also apparent from the following
exchange between Messrs. Suarez and Bennagen:
MR. SUAREZ. When we speak of customary laws governing property rights or relations in
determining the ownership and extent of the ancestral domain, are we thinking in terms of the tribal
ownership or community ownership or of private ownership within the ancestral lands or ancestral
domain?
MR. BENNAGEN. The concept of customary laws is that it is considered as ownership by
private individuals, clans and even communities.
MR. SUAREZ. So, there will be two aspects to this situation. This means that the State will set
aside the ancestral domain and there is a separate law for that. Within the ancestral domain it could
accept more specific ownership in terms of individuals within the ancestral lands.
MR. BENNAGEN. Individuals and groups within the ancestral domain. 107 (Emphasis supplied.)
It cannot be correctly argued that, because the framers of the Constitution never expressly
mentioned Cario in their deliberations, they did not intend to adopt the concept of native title to
land, or that they were unaware of native title as an exception to the theory of jura regalia.108 The
framers of the Constitution, as well as the people adopting it, were presumed to be aware of the
prevailing judicial doctrines concerning the subject of constitutional provisions, and courts should
take these doctrines into consideration in construing the Constitution.109
Having thus recognized that ancestral domains under the Constitution are considered as private
property of indigenous peoples, the IPRA, by affirming or acknowledging such ownership through
its various provisions, merely abides by the constitutional mandate and does not suffer any vice of
unconstitutionality.
Petitioners interpret the phrase "subject to the provisions of this Constitution and national
development policies and programs" in Section 5, Article XII of the Constitution to mean "as
subject to the provision of Section 2, Article XII of the Constitution," which vests in the State
ownership of all lands of the public domain, mineral lands and other natural resources. Following
this interpretation, petitioners maintain that ancestral lands and ancestral domains are the property of
the State.
This proposition is untenable. Indeed, Section 2, Article XII reiterates the declarations made in the
1935 and 1973 Constitutions on the state policy of conservation and nationalization of lands of the
public domain and natural resources, and is of paramount importance to our national economy and
patrimony. A close perusal of the records of the 1986 Constitutional Commission reveals that the
framers of the Constitution inserted the phrase "subject to the provisions of this Constitution"
mainly to prevent the impairment of Torrens titles and other prior rights in the determination of what
constitutes ancestral lands and ancestral domains, to wit:
MR. NATIVIDAD. Just one question. I want to clear this section protecting ancestral lands. How
does this affect the Torrens title and other prior rights?
MR. BENNAGEN. I think that was also discussed in the committee hearings and we did say that in
cases where due process is clearly established in terms of prior rights, these two have to be
respected.
MR. NATIVIDAD. The other point is: How vast is this ancestral land? Is it true that parts of Baguio
City are considered as ancestral lands?
MR. BENNAGEN. They could be regarded as such. If the Commissioner still recalls, in one of the
publications that I provided the Commissioners, the parts could be considered as ancestral domain
in relation to the whole population of Cordillera but not in relation to certain individuals or certain
groups.
MR. NATIVIDAD. The Commissioner means that the whole Baguio City is considered as ancestral
land?
MR. BENNAGEN. Yes, in the sense that it belongs to Cordillera or in the same manner that
Filipinos can speak of the Philippine archipelago as ancestral land, but not in terms of the right of a
particular person or particular group to exploit, utilize, or sell it.
MR. NATIVIDAD. But is clear that the prior rights will be respected.
MR. BENNAGEN. Definitely. 110
Thus, the phrase "subject to the provisions of this Constitution" was intended by the framers of the
Constitution as a reiteration of the constitutional guarantee that no person shall be deprived of
property without due process of law.
There is another reason why Section 5 of Article XII mandating the protection of rights of the
indigenous peoples to their ancestral lands cannot be construed as subject to Section 2 of the same
Article ascribing ownership of all public lands to the State. The Constitution must be construed as a
whole. It is a rule that when construction is proper, the whole Constitution is examined in order to
determine the meaning of any provision. That construction should be used which would give effect
to the entire instrument.111
Thus, the provisions of the Constitution on State ownership of public lands, mineral lands and other
natural resources should be read together with the other provisions thereof which firmly recognize
the rights of the indigenous peoples. These, as set forth hereinbefore, 112 include: Section 22, Article
II, providing that the State recognizes and promotes the rights of indigenous peoples within the
framework of national unity and development;Section 5, Article XII, calling for the protection of
the rights of indigenous cultural communities to their ancestral lands to ensure their economic,
social, and cultural well-being, and for the applicability of customary laws governing property rights
and relations in determining the ownership and extent of ancestral domains; Section 1, Article XIII,
directing the removal or reduction of social, economic, political and cultural inequities and
inequalities by equitably diffusing wealth and political power for the common good; Section 6,
Article XIII, directing the application of the principles of agrarian reform or stewardship in the
disposition and utilization of other natural resources, subject to prior rights, homestead rights of
small settlers, and the rights of indigenous communities to their ancestral lands; Section 17, Article
XIV, decreeing that the State shall recognize, respect, and protect the rights of indigenous cultural
communities to preserve and develop their cultures, traditions, and institutions; andSection 12,
Article XVI, authorizing the Congress to create a consultative body to advise the President on
policies affecting indigenous cultural communities.
Again, as articulated in the Constitution, the first goal of the national economy is the more
equitable distribution of opportunities, income, and wealth.113 Equity is given prominence as the
first objective of national economic development.114 The framers of the Constitution did not, by the
phrase "subject to the provisions of this Constitution and national development policies and
programs," intend to establish a hierarchy of constitutional norms. As explained by then
Commissioner (now Chief Justice) Hilario G. Davide, Jr., it was not their objective to make certain
interests primary or paramount, or to create absolute limitations or outright prohibitions; rather, the
idea is towards the balancing of interests:
BISHOP BACANI. In Commissioner Davides formulation of the first sentence, he says: "The
State, SUBJECT TO THE provisions of this Constitution AND NATIONAL DEVELOPMENT
POLICIES AND PROGRAMS shall guarantee the rights of cultural or tribal communities to their
ancestral lands to insure their economic, social and cultural well-being." There are at least two
concepts here which receive different weights very often. They are the concepts of national
development policies and programs, and the rights of cultural or tribal communities to their
ancestral lands, et cetera. I would like to ask: When the Commissioner proposed this amendment,
which was the controlling concept? I ask this because sometimes the rights of cultural minorities are
precisely transgressed in the interest of national development policies and programs. Hence, I would
like to know which is the controlling concept here. Is it the rights of indigenous peoples to their
ancestral lands or is it national development policies and programs.
MR. DAVIDE. It is not really a question of which is primary or which is more paramount. The
concept introduced here is really the balancing of interests. That is what we seek to attain. We
have to balance the interests taking into account the specific needs and the specific interests also of
these cultural communities in like manner that we did so in the autonomous regions. 115 (Emphasis
supplied.)
B. The provisions of R.A. 8371 do not infringe upon the States ownership over the natural
resources within the ancestral domains.
Petitioners posit that IPRA deprives the State of its ownership over mineral lands of the public
domain and other natural resources,116 as well as the States full control and supervision over the
exploration, development and utilization of natural resources. 117 Specifically, petitioners and the
Solicitor General assail Sections 3 (a), 118 5,119and 7120 of IPRA as violative of Section 2, Article XII of
the Constitution which states, in part, that "[a]ll lands of the public domain, waters, minerals, coal,
petroleum, and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife,
flora and fauna, and other natural resources are owned by the State." 121 They would have the Court
declare as unconstitutional Section 3(a) of IPRA because the inclusion of natural resources in the
definition of ancestral domains purportedly results in the abdication of State ownership over these
resources.
I am not convinced.
Section 3(a) merely defines the coverage of ancestral domains, and describes the extent, limit and
composition of ancestral domains by setting forth the standards and guidelines in determining
whether a particular area is to be considered as part of and within the ancestral domains. In other
words, Section 3(a) serves only as a yardstick which points out what properties are within the
ancestral domains. It does not confer or recognize any right of ownership over the natural resources
to the indigenous peoples. Its purpose is definitional and not declarative of a right or title.
The specification of what areas belong to the ancestral domains is, to our mind, important to ensure
that no unnecessary encroachment on private properties outside the ancestral domains will result
during the delineation process. The mere fact that Section 3(a) defines ancestral domains to include
the natural resources found therein does not ipso facto convert the character of such natural
resources as private property of the indigenous peoples. Similarly, Section 5 in relation to Section
3(a) cannot be construed as a source of ownership rights of indigenous people over the natural
resources simply because it recognizes ancestral domains as their "private but community property."
The phrase "private but community property" is merely descriptive of the indigenous peoples
concept of ownership as distinguished from that provided in the Civil Code. In Civil Law,
"ownership" is the "independent and general power of a person over a thing for purposes recognized
by law and within the limits established thereby." 122 The civil law concept of ownership has the
following attributes: jus utendi or the right to receive from the thing that which it produces, jus
abutendi or the right to consume the thing by its use, jus disponendi or the power to alienate,
encumber, transform and even destroy that which is owned and jus vidicandi or the right to exclude
other persons from the possession the thing owned. 123 In contrast, the indigenous peoples concept of
ownership emphasizes the importance of communal or group ownership. By virtue of the communal
character of ownership, the property held in common "cannot be sold, disposed or
destroyed"124 because it was meant to benefit the whole indigenous community and not merely the
individual member.125
That IPRA is not intended to bestow ownership over natural resources to the indigenous peoples is
also clear from the deliberations of the bicameral conference committee on Section 7 which recites
the rights of indigenous peoples over their ancestral domains, to wit:
CHAIRMAN FLAVIER. Accepted. Section 8126 rights to ancestral domain, this is where we
transferred the other provision but here itself HON. DOMINGUEZ. Mr. Chairman, if I maybe allowed to make a very short Statement. Earlier,
Mr. Chairman, we have decided to remove the provisions on natural resources because we all
agree that that belongs to the State. Now, the plight or the rights of those indigenous communities
living in forest and areas where it could be exploited by mining, by dams, so can we not also
provide a provision to give little protection or either rights for them to be consulted before any
mining areas should be done in their areas, any logging done in their areas or any dam construction
because this has been disturbing our people especially in the Cordilleras. So, if there could be, if our
lawyers or the secretariat could just propose a provision for incorporation here so that maybe the
right to consultation and the right to be compensated when there are damages within their ancestral
lands.
CHAIRMAN FLAVIER. Yes, very well taken but to the best of my recollection both are already
considered in subsequent sections which we are now looking for.
HON. DOMINGUEZ. Thank you.
CHAIRMAN FLAVIER. First of all there is a line that gives priority use for the indigenous people
where they are. Number two, in terms of the mines there is a need for prior consultation of source
which is here already. So, anyway it is on the record that you want to make sure that the secretariat
takes note of those two issues and my assurance is that it is already there and I will make sure that
they cross check.
HON. ADAMAT. I second that, Mr. Chairman.

CHAIRMAN FLAVIER. Okay, thank you. So we now move to Section 8, there is a Senate version
you do not have and if you agree we will adopt that.127 (Emphasis supplied.)
Further, Section 7 makes no mention of any right of ownership of the indigenous peoples over the
natural resources. In fact, Section 7(a) merely recognizes the "right to claim ownership over lands,
bodies of water traditionally and actually occupied by indigenous peoples, sacred places, traditional
hunting and fishing grounds, and all improvements made by them at any time within the domains."
Neither does Section 7(b), which enumerates certain rights of the indigenous peoples over the
natural resources found within their ancestral domains, contain any recognition of ownership vis-avis the natural resources.
What is evident is that the IPRA protects the indigenous peoples rights and welfare in relation to
the natural resources found within their ancestral domains, 128 including the preservation of the
ecological balance therein and the need to ensure that the indigenous peoples will not be unduly
displaced when State-approved activities involving the natural resources located therein are
undertaken.
Finally, the concept of native title to natural resources, unlike native title to land, has not been
recognized in the Philippines. NCIP and Flavier, et al. invoke the case of Reavies v. Fianza129 in
support of their thesis that native title to natural resources has been upheld in this
jurisdiction.130 They insist that "it is possible for rights over natural resources to vest on a private (as
opposed to a public) holder if these were held prior to the 1935 Constitution." 131 However, a
judicious examination of Reavies reveals that, contrary to the position of NCIP and Flavier, et al.,
the Court did not recognize native title to natural resources. Rather, it merely upheld the right of the
indigenous peoples to claim ownership of minerals under the Philippine Bill of 1902.
While as previously discussed, native title to land or private ownership by Filipinos of land by
virtue of time immemorial possession in the concept of an owner was acknowledged and recognized
as far back during the Spanish colonization of the Philippines, there was no similar favorable
treatment as regards natural resources. The unique value of natural resources has been
acknowledged by the State and is the underlying reason for its consistent assertion of ownership and
control over said natural resources from the Spanish regime up to the present. 132 Natural resources,
especially minerals, were considered by Spain as an abundant source of revenue to finance its
battles in wars against other nations. Hence, Spain, by asserting its ownership over minerals
wherever these may be found, whether in public or private lands, recognized the separability of title
over lands and that over minerals which may be found therein. 133
On the other hand, the United States viewed natural resources as a source of wealth for its nationals.
As the owner of natural resources over the Philippines after the latters cession from Spain, the
United States saw it fit to allow both Filipino and American citizens to explore and exploit minerals
in public lands, and to grant patents to private mineral lands. A person who acquired ownership over
a parcel of private mineral land pursuant to the laws then prevailing could exclude other persons,
even the State, from exploiting minerals within his property.134Although the United States made a
distinction between minerals found in public lands and those found in private lands, title in these
minerals was in all cases sourced from the State. The framers of the 1935 Constitution found it
necessary to maintain the States ownership over natural resources to insure their conservation for
future generations of Filipinos, to prevent foreign control of the country through economic
domination; and to avoid situations whereby the Philippines would become a source of international
conflicts, thereby posing danger to its internal security and independence. 135
The declaration of State ownership and control over minerals and other natural resources in the
1935 Constitution was reiterated in both the 1973136 and 1987 Constitutions.137
Having ruled that the natural resources which may be found within the ancestral domains belong to
the State, the Court deems it necessary to clarify that the jurisdiction of the NCIP with respect to
ancestral domains under Section 52 [i] of IPRA extends only to the lands and not to
the natural resources therein.
Section 52[i] provides:
Turnover of Areas Within Ancestral Domains Managed by Other Government Agencies. - The
Chairperson of the NCIP shall certify that the area covered is an ancestral domain. The secretaries of
the Department of Agrarian Reform, Department of Environment and Natural Resources,
Department of Interior and Local Government, and Department of Justice, the Commissioner of the
National Development Corporation, and any other government agency claiming jurisdiction over
the area shall be notified thereof. Such notification shall terminate any legal basis for the jurisdiction
previously claimed.
Undoubtedly, certain areas that are claimed as ancestral domains may still be under the
administration of other agencies of the Government, such as the Department of Agrarian Reform,
with respect to agricultural lands, and the Department of Environment and Natural Resources with
respect to timber, forest and mineral lands. Upon the certification of these areas as ancestral domain
following the procedure outlined in Sections 51 to 53 of the IPRA, jurisdiction of the government
agency or agencies concerned over lands forming part thereof ceases. Nevertheless, the jurisdiction
of government agencies over the natural resources within the ancestral domains does not terminate
by such certification because said agencies are mandated under existing laws to administer the
natural resources for the State, which is the owner thereof. To construe Section 52[i] as divesting the
State, through the government agencies concerned, of jurisdiction over the natural resources within
the ancestral domains would be inconsistent with the established doctrine that all natural resources
are owned by the State.
C. The provisions of IPRA pertaining to the utilization of natural resources are not unconstitutional.
The IPRA provides that indigenous peoples shall have the right to manage and conserve the natural
resources found on the ancestral domains, to benefit from and share in the profits from the
allocation and utilization of these resources, and to negotiate the terms and conditions for the
exploration of such natural resources.138 The statute also grants them priority rights in the harvesting,
extraction, development or exploitation of any natural resources within the ancestral
domains.139 Before the NCIP can issue a certification for the renewal, or grant of any concession,
license or lease, or for the perfection of any production-sharing agreement the prior informed
written consent of the indigenous peoples concerned must be obtained. 140 In return, the indigenous
peoples are given the responsibility to maintain, develop, protect and conserve the ancestral
domains or portions thereof which are found to be necessary for critical watersheds, mangroves,
wildlife sanctuaries, wilderness, protected areas, forest cover, or reforestation. 141
The Solicitor General argues that these provisions deny the State an active and dominant role in the
utilization of our countrys natural resources. Petitioners, on the other hand, allege that under the
Constitution the exploration, development and utilization of natural resources may only be
undertaken by the State, either directly or indirectly through co-production, joint venture, or
production-sharing agreements.142 To petitioners, no other method is allowed by the Constitution.
They likewise submit that by vesting ownership of ancestral lands and ancestral domains in the
indigenous peoples, IPRA necessarily gives them control over the use and enjoyment of such natural
resources, to the prejudice of the State.143
Section 2, Article XII of the Constitution provides in paragraph 1 thereof that the exploration,
development and utilization of natural resources must be under the full control and supervision of
the State, which may directly undertake such activities or enter into co-production, joint venture, or
production-sharing agreements. This provision, however, should not be read in isolation to avoid a
mistaken interpretation that any and all forms of utilization of natural resources other than the
foregoing are prohibited. The Constitution must be regarded as consistent with itself
throughout.144 No constitutional provision is to be separated from all the others, or to be considered
alone, all provisions bearing upon a particular subject are to be brought into view and to be so
interpreted as to effectuate the great purposes of the fundamental law.145
In addition to the means of exploration, development and utilization of the countrys natural
resources stated in paragraph 1, Section 2 of Article XII, the Constitution itself states in the third
paragraph of the same section that Congress may, by law, allow small-scale utilization of natural
resources by its citizens.146 Further, Section 6, Article XIII, directs the State, in the disposition
and utilization of natural resources, to apply the principles of agrarian reform or
stewardship.147 Similarly, Section 7, Article XIII mandates the State to protect the rights of
subsistence fishermen to the preferential use of marine and fishing resources.148 Clearly, Section 2,
Article XII, when interpreted in view of the pro-Filipino, pro-poor philosophy of our fundamental
law, and in harmony with the other provisions of the Constitution rather as a sequestered
pronouncement,149 cannot be construed as a prohibition against any and all forms of utilization of
natural resources without the States direct participation.
Through the imposition of certain requirements and conditions for the exploration, development and
utilization of the natural resources under existing laws, 150 the State retains full control over such
activities, whether done on small-scale basis151 or otherwise.
The rights given to the indigenous peoples regarding the exploitation of natural resources under
Sections 7(b) and 57 of IPRA amplify what has been granted to them under existing laws, such as
the Small-Scale Mining Act of 1991 (R.A. 7076) and the Philippine Mining Act of 1995 (R.A.
7942). R.A. 7076 expressly provides that should an ancestral land be declared as a peoples smallscale mining area, the members of the indigenous peoples living within said area shall be
given priority in the awarding of small-scale mining contracts.152 R.A. 7942 declares that no
ancestral land shall be opened for mining operations without the prior consent of the
indigenous cultural community concerned153 and in the event that the members of such indigenous
cultural community give their consent to mining operations within their ancestral land, royalties
shall be paid to them by the parties to the mining to the contract.154
In any case, a careful reading of Section 7(b) would reveal that the rights given to the indigenous
peoples are duly circumscribed. These rights are limited only to the following: "to manage and
conserve natural resources within territories and uphold it for future generations; to benefit and
share the profits from allocation and utilization of the natural resources found therein; to negotiate
the terms and conditions for the exploration of natural resources in the areas for the purpose of
ensuring ecological, environmental protection and the conservation measures, pursuant to national
and customary laws; to an informed and intelligent participation in the formulation and
implementation of any project, government or private, that will affect or impact upon the ancestral
domains and to receive just and fair compensation for any damages which they may sustain as a
result of the project, and the right to effective measures by the government to prevent any
interference with, alienation and encroachment of these rights."
It must be noted that the right to negotiate terms and conditions granted under Section 7(b) pertains
only to theexploration of natural resources. The term "exploration" refers only to the search or
prospecting of mineral resources, or any other means for the purpose of determining the existence
and the feasibility of mining them for profit.155 The exploration, which is merely a preliminary
activity, cannot be equated with the entire process of "exploration, development and utilization" of
natural resources which under the Constitution belong to the State.
Section 57, on the other hand, grants the indigenous peoples "priority rights" in the utilization of
natural resources and not absolute ownership thereof. Priority rights does not mean exclusive rights.
What is granted is merely the right of preference or first consideration in the award of privileges
provided by existing laws and regulations, with due regard to the needs and welfare of indigenous
peoples living in the area.
There is nothing in the assailed law which implies an automatic or mechanical character in the grant
of concessions. Nor does the law negate the exercise of sound discretion by government entities.
Several factors still have to be considered. For example, the extent and nature of utilization and the
consequent impact on the environment and on the indigenous peoples way of life are important
considerations. Moreover, the indigenous peoples must show that they live in the area and that they
are in the best position to undertake the required utilization.
It must be emphasized that the grant of said priority rights to indigenous peoples is not a blanket
authority to disregard pertinent laws and regulations. The utilization of said natural resources is
always subject to compliance by the indigenous peoples with existing laws, such as R.A. 7076 and
R.A. 7942 since it is not they but the State, which owns these resources.
It also bears stressing that the grant of priority rights does not preclude the State from undertaking
activities, or entering into co-production, joint venture or production-sharing agreements with
private entities, to utilize the natural resources which may be located within the ancestral domains.
There is no intention, as between the State and the indigenous peoples, to create a hierarchy of
values; rather, the object is to balance the interests of the State for national development and those
of the indigenous peoples.
Neither does the grant of priority rights to the indigenous peoples exclude non-indigenous peoples
from undertaking the same activities within the ancestral domains upon authority granted by the
proper governmental agency. To do so would unduly limit the ownership rights of the State over the
natural resources.
To be sure, the act of the State of giving preferential right to a particular sector in the utilization of
natural resources is nothing new. As previously mentioned, Section 7, Article XIII of the
Constitution mandates the protection by the State of "the rights of subsistence fishermen, especially
of local communities, to the preferential use of communal marine and fishing resources, both inland
and offshore."
Section 57 further recognizes the possibility that the exploration and exploitation of natural
resources within the ancestral domains may disrupt the natural environment as well as the
traditional activities of the indigenous peoples therein. Hence, the need for the prior informed
consent of the indigenous peoples before any search for or utilization of the natural resources within
their ancestral domains is undertaken.
In a situation where the State intends to directly or indirectly undertake such activities, IPRA
requires that the prior informed consent of the indigenous peoples be obtained. The State must, as a
matter of policy and law, consult the indigenous peoples in accordance with the intent of the framers
of the Constitution that national development policies and programs should involve a systematic
consultation to balance local needs as well as national plans. As may be gathered from the
discussion of the framers of the Constitution on this point, the national plan presumably takes into
account the requirements of the region after thorough consultation. 156 To this end, IPRA grants to the
indigenous peoples the right to an informed and intelligent participation in the formulation and
implementation of any project, government or private, and the right not to be removed therefrom
without their free and prior informed consent.157 As to non-members, the prior informed consent
takes the form of a formal and written agreement between the indigenous peoples and non-members
under the proviso in Section 57 in case the State enters into a co-production, joint venture, or
production-sharing agreement with Filipino citizens, or corporations. This requirement is not
peculiar to IPRA. Existing laws and regulations such as the Philippine Environmental Policy,158 the
Environmental Impact System,159 the Local Government Code160 and the Philippine Mining Act of
1995161already require increased consultation and participation of stakeholders, such as indigenous
peoples, in the planning of activities with significant environment impact.
The requirement in Section 59 that prior written informed consent of the indigenous peoples must
be procured before the NCIP can issue a certification for the "issuance, renewal, or grant of any
concession, license or lease, or to the perfection of any production-sharing agreement," must be
interpreted, not as a grant of the power to control the exploration, development and utilization of
natural resources, but merely the imposition of an additional requirement for such concession or
agreement. The clear intent of the law is to protect the rights and interests of the indigenous peoples
which may be adversely affected by the operation of such entities or licensees.
Corollary Issues
A. IPRA does not violate the Due Process clause.
The first corollary issue raised by petitioners is whether IPRA violates Section 1, Article III of the
Constitution, which provides that "no person shall be deprived of life, liberty, or property without
due process of law, nor shall any person be deprived the equal protection of the laws."
Petitioners maintain that the broad definition of ancestral lands and ancestral domains under Section
3(a) and 3(b) of IPRA includes private lands. They argue that the inclusion of private lands in the
ancestral lands and ancestral domains violates the due process clause. 162 Petitioners contention is
erroneous.
Sections 3(a) and 3(b) expressly provide that the definition of ancestral lands and ancestral domains
are "subject to Section 56," which reads:
Sec. 56. Existing Property Rights Regimes. Property rights within the ancestral domains already
existing and/or vested upon effectivity of this Act, shall be recognized and protected.
Petitioners, however, contend that Section 56 aims to protect only the vested rights of indigenous
peoples, but not those who are not members of such communities. Following their interpretation,
IPRA, under Section 56, recognizes the rights of indigenous peoples to their ancestral lands and
ancestral domains, subject to the vested rights of the same communities to such ancestral lands
and ancestral domains. Such interpretation is obviously incorrect.
The "property rights" referred to in Section 56 belong to those acquired by individuals, whether
indigenous or non-indigenous peoples. Said provision makes no distinction as to the ethnic origins
of the ownership of these "property rights." The IPRA thus recognizes and respects "vested rights"
regardless of whether they pertain to indigenous or non-indigenous peoples. Where the law does not
distinguish, the courts should not distinguish. 163What IPRA only requires is that these "property
rights" already exist and/or vested upon its effectivity.
Further, by the enactment of IPRA, Congress did not purport to annul any and all Torrens titles
within areas claimed as ancestral lands or ancestral domains. The statute imposes strict procedural
requirements for the proper delineation of ancestral lands and ancestral domains as safeguards
against the fraudulent deprivation of any landowner of his land, whether or not he is member of an
indigenous cultural community. In all proceedings for delineation of ancestral lands and ancestral
domains, the Director of Lands shall appear to represent the interest of the Republic of the
Philippines.164 With regard to ancestral domains, the following procedure is mandatory:first,
petition by an indigenous cultural community, or motu proprio by the NCIP; second, investigation
and census by the Ancestral domains Office ("ADO") of the NCIP; third, preliminary report by the
ADO; fourth, posting and publication; and lastly, evaluation by the NCIP upon submission of the
final report of the ADO.165 With regard to ancestral lands, unless such lands are within an ancestral
domain, the statute imposes the following procedural requirements: first, application; second,
posting and publication; third, investigation and inspection by the ADO; fourth, delineation; lastly,
evaluation by the NCIP upon submission of a report by the ADO. 166Hence, we cannot sustain the
arguments of the petitioners that the law affords no protection to those who are not indigenous
peoples.
Neither do the questioned sections of IPRA on the composition and powers and jurisdiction of the
NCIP167 and the application of customary law,168 violate the due process clause of the Constitution.
Petitioners point out that IPRA provides that the NCIP shall be composed exclusively of members
of indigenous peoples,169 and that the NCIP shall have jurisdiction over all claims and disputes
involving indigenous peoples,170including even disputes between a member of such communities
and one who is not a member, as well as over disputes in the delineation of ancestral
domains.171 Petitioners clarify that they do not claim that the members of the NCIP are incapable of
being fair and impartial judges. They merely contend that the NCIP will not appear to be impartial,
because a party who is not a member of an indigenous cultural community "who must defend his
case against [one who is] before judges who are all members of [indigenous peoples] cannot but
harbor a suspicion that they do not have the cold neutrality of an impartial judge."172
In addition, petitioners claim that IPRA prescribes that customary laws shall be applied first in
disputes involving property, succession and land,173 and that such laws shall likewise be used in
disputes involving indigenous peoples.174 They assert that "[w]hen the dispute involves a member of
an [indigenous cultural community and another who is not], a resolution of such a dispute based on
customary laws. . . would clearly be a denial of due process. . . [because those who are not
indigenous peoples] do not know what these customary laws are."175
Petitioners concerns are unfounded. The fact that the NCIP is composed of members of the
indigenous peoples does not mean that it (the NCIP) is incapable, or will appear to be so incapable,
of delivering justice to the non-indigenous peoples. A persons possession of the trait of impartiality
desirable of a judge has nothing to do with his or her ethnic roots. In this wise, the indigenous
peoples are as capable of rendering justice as the non-indigenous peoples for, certainly, the latter
have no monopoly of the concept of justice.
In any case, there are sufficient checks in the law against any abuse by the NCIP of its quasi-judicial
powers. Section 67 states that the decision of the NCIP shall be appealable to the Court of Appeals
by petition for review. The regular remedies under our rules of procedure are likewise available to
any party aggrieved by the decision of the NCIP.
Anent the use of customary laws in determining the ownership and extent of ancestral domains,
suffice it to say that such is allowed under paragraph 2, Section 5 of Article XII of the Constitution.
Said provision states, "The Congress may provide for the applicability of customary laws governing
property rights and relations in determining the ownership and extent of the ancestral domains."
Notably, the use of customary laws under IPRA is not absolute, for the law speaks merely
of primacy of use.176 The IPRA prescribes the application of such customary laws where these
present a workable solution acceptable to the parties, who are members of the same indigenous
group. This interpretation is supported by Section 1, Rule IX of the Implementing Rules which
states:
RULE IX. JURISDICTION AND PROCEDURES FOR ENFORCEMENT OF RIGHTS
Section 1. Primacy of Customary Law. All conflicts related to ancestral domains and lands,
involving ICCs/IPs, such as but not limited to conflicting claims and boundary disputes, shall be
resolved by the concerned parties through the application of customary laws in the area where the
disputed ancestral domain or land is located.
All conflicts related to the ancestral domains or lands where one of the parties is a non-ICC/IP
or where the dispute could not be resolved through customary law shall be heard and
adjudicated in accordance with the Rules on Pleadings, Practice and Procedures Before the
NCIP to be adopted hereafter. (Emphasis supplied.)
The application of customary law is limited to disputes concerning property rights or relations
in determining the ownership and extent of the ancestral domains, 177 where all the parties
involved are members of indigenous peoples,178 specifically, of the same indigenous group. It
therefore follows that when one of the parties to a dispute is a non-member of an indigenous group,
or when the indigenous peoples involved belong to different groups, the application of customary
law is not required.
Like any other law, the objective of IPRA in prescribing the primacy of customary law in disputes
concerning ancestral lands and domains where all parties involved are indigenous peoples is justice.
The utilization of customary laws is in line with the constitutional policy of recognizing the
application thereof through legislation passed by Congress.
Furthermore, the recognition and use of customary law is not a novel idea in this jurisdiction. Under
the Civil Code, use of customary law is sanctioned, as long as it is proved as a fact according to the
rules of evidence,179 and it is not contrary to law, public order or public policy.180 Moreover, the Local
Government Code of 1991 calls for the recognition and application of customary laws to the
resolution of issues involving members of indigenous peoples. This law admits the operation of
customary laws in the settling of disputes if such are ordinarily used in barangays where majority of
the inhabitants are members of indigenous peoples.181
B. Section 1, Part II, Rule VII of the Implementing Rules of IPRA does not infringe upon the
Presidents power of control over the Executive Department.
The second corollary issue is whether the Implementing Rules of IPRA violate Section 17, Article
VII of the Constitution, which provides that:
The President shall have control of all the executive departments, bureaus, and offices. He shall
ensure that the laws be faithfully executed.
The assailed provision of the Implementing Rules provides:
Rule VII. The National Commission on Indigenous Peoples (NCIP)

xxx
Part II: NCIP as an Independent Agency Under the Office of the President
Section 1. The NCIP is the primary agency of government for the formulation and implementation
of policies, plans and programs to recognize, promote and protect the rights and well-being of
indigenous peoples. It shall be an independent agency under the Office of the President. As such,
the administrative relationship of the NCIP to the Office of the President is characterized as a
lateral but autonomous relationship for purposes of policy and program coordination. This
relationship shall be carried out through a system of periodic reporting. Matters of day-to-day
administration or all those pertaining to internal operations shall be left to the discretion of the
Chairperson of the Commission, as the Chief Executive Officer.
Petitioners asseverate that the aforecited rule infringes upon the power of control of the President
over the NCIP by characterizing the relationship of the NCIP to the Office of the President as
"lateral but autonomous...for purposes of policy and program coordination."
Although both Section 40 of the IPRA and Section 1, Part II, Rule VII of the Implementing Rules
characterize the NCIP as an independent agency under the Office of the President, such
characterization does not remove said body from the Presidents control and supervision.
The NCIP has been designated under IPRA as the primary government agency responsible for the
formulation and implementation of policies, plans and programs to promote and protect the rights
and well being of the indigenous peoples and the recognition of their ancestral domain as well as
their rights thereto.182 It has been granted administrative,183 quasi-legislative184 and quasi-judicial
powers185 to carry out its mandate. The diverse nature of the NCIPs functions renders it impossible
to place said agency entirely under the control of only one branch of government and this,
apparently, is the reason for its characterization by Congress as an independent agency. An
"independent agency" is defined as an administrative body independent of the executive branch or
one not subject to a superior head of department, as distinguished from a "subordinate agency" or an
administrative body whose action is subject to administrative review or revision. 186
That Congress did not intend to place the NCIP under the control of the President in all instances is
evident in the IPRA itself, which provides that the decisions of the NCIP in the exercise of its quasijudicial functions shall be appealable to the Court of Appeals, 187 like those of the National Labor
Relations Commission (NLRC) and the Securities and Exchange Commission (SEC). Nevertheless,
the NCIP, although independent to a certain degree, was placed by Congress "under the office of the
President" and, as such, is still subject to the Presidents power of control and supervision granted
under Section 17, Article VII of the Constitution 188 with respect to its performance of administrative
functions, such as the following: (1) the NCIP must secure the Presidents approval in obtaining
loans to finance its projects;189 (2) it must obtain the Presidents approval for any negotiation for
funds and for the acceptance of gifts and/or properties in whatever from and from whatever
source;190 (3) the NCIP shall submit annual reports of its operations and achievements to the
President, and advise the latter on all matters relating to the indigenous peoples; 191 and (4) it shall
exercise such other powers as may be directed by the President. 192The President is also given the
power to appoint the Commissioners of the NCIP 193 as well as to remove them from office for
cause motu proprio or upon the recommendation of any indigenous community.194
To recapitulate:
(1) The provisions of the IPRA (specifically Sections 3, paragraphs (a) and (b), 5, 6, 7, and 8)
affirming the ownership by the indigenous peoples of their ancestral lands and domains by
virtue of native title do not diminish the States ownership of lands of the public domain,
because said ancestral lands and domains are considered as private land, and never to have
been part of the public domain, following the doctrine laid down in Cario vs. Insular
Government;195
(2) The constitutional provision vesting ownership over minerals, mineral lands and other
natural resources in the State is not violated by Sections 3, 5, 7, 56, 57, 58 and 59 of the
IPRA which grant certain rights to the indigenous peoples over the natural resources found
within the ancestral domains, e.g., to benefit from and share in the profits from the allocation
and utilization of the same, as well as priority rights in the harvesting, extraction,
development or exploitation thereof. The State retains full control over the exploration,
development and utilization of natural resources even with the grant of said rights to the
indigenous peoples, through the imposition of requirements and conditions for the utilization
of natural resources under existing laws, such as the Small-Scale Mining Act of 1991 196and
the Philippine Mining Act of 1995.197 Moreover, the rights granted to indigenous peoples for
the utilization of natural resources within their ancestral domains merely amplify what has
been earlier granted to them under the aforesaid laws;
(3) While the IPRA recognizes the rights of indigenous peoples with regard to their ancestral
lands and domains, it also protects the vested rights of persons, whether indigenous or nonindigenous peoples, who may have acquired rights of ownership lands or rights to explore
and exploit natural resources within the ancestral lands and domains;198
(4) The Due Process Clause of the Constitution is not violated by the provisions (Sections 40,
51-54, 62, 63, 65 and 66) of the IPRA which, among others, establish the composition of the
NCIP, and prescribe the application of customary law in certain disputes involving
indigenous peoples. The fact the NCIP is composed wholly of indigenous peoples does not
mean that it is incapable of being impartial. Moreover, the use of customary laws is
sanctioned by paragraph 2, Section 5 of Article XII of the Constitution; and
(5) The provision of the Implementing Rules characterizing the NCIP as an independent
agency under the Office of the President does not infringe upon the Presidents power of
control under Section 17, Article VII of the Constitution, since said provision as well as
Section 40 of the IPRA expressly places the NCIP under the Office of the President, and
therefore under the Presidents control and supervision with respect to its administrative
functions. However, insofar as the decisions of the NCIP in the exercise of its quasi-judicial
powers are concerned, the same are reviewable by the Court of Appeals, like those of the
NLRC and the SEC.
In view of the foregoing, I vote to DISMISS the petition.
Footnotes
Teehankee vs. Rovira, 75 Phil. 634 (1945); San Miguel Corporation vs. Avelino, 89 SCRA
69 (1979); Phil. Long Distance Telephone Co. vs. Collector of Internal Revenue, 90 Phil 674
(1952).
1
In re Guarina, 24 Phil. 37 (1913).
In Philippine Colonial history, the term indio applied to indigenous throughout the vast
Spanish empire. India was a synonym for all of Asia east of the Indus River. Even after it
became apparent that the explorer Christopher Columbus was not able to reach territories
lying off the east coast of Asia, the Spanish persisted in referring to all natives within their
empire as los Indios. (Owen J. Lynch, Jr., THE PHILIPPINE COLONIAL DICHOTOMY:
Attraction and Disenfranchisement, 63 PL J 112 [1988] citing R. BERKHOFER, THE
WHITE MANS INDIAN: IMAGES OF THE AMERICAN INDIAN FROM COLUMBUS
TO THE PRESIDENT 5 [1979].
3
Websters Third New International Dictionary (1976), p. 1151.
Benedict Kingsbury, "Indigenous Peoples" in International Law: A Constructivist Approach

to the Asian Controversy, 92 The American Journal of International Law 414, 419 (1998)
citing Jose Martinez Cobo, Study of the Problem of Discrimination against indigenous
population, UN Doc. E/CN.4/Sub. 2/1986/ 7/ Add. 4, paras. 379-80.
5
Ibid. This definition is criticized for taking the potentially limited, and controversial view of
indigenous peoples by requiring "historical continuity with pre-invasion and pre-colonial
societies that developed on their territories."
6
Rubi v. Provincial Board of Mindoro, 39 Phil. 660, 680 (1919).
Hearing before the Committee on the Philippines, United States Senate, Sixty-Third
Congress, Third Session on HR 18459, pp. 346, 351. Quoted in Rubi at 686.
9
United States President McKinleys Instruction to the Philippine Commission, April 7,

1900, quoted in Rubi at 680.
10
11
US v. Tubban, 29 Phil. 434, 436 (1915).
See Owen J. Lynch, Jr., Invisible Peoples And A Hidden Agenda: The Origins of
Contemporary Philippine Land Laws (1900-1913), 63 PLJ 249 (1988).
12
For an introduction to the chasm that exists between Philippine Law and Indigenous
Custom Law, see Owen J. Lynch, Jr., Native Title, Private Right and Tribal Land Law: An
Introductory Survey 52 PLJ 268 (1982); and the Philippine Indigenous Law Collection: An
Introduction and Preliminary Bibliography, 58 PLJ 457 (1983), by the same author.
13
See Renato Constantino, The Philippines: A Past Revisited (1975), pp. 26-41; Teodoro
Agoncillo, A History of the Filipino People, 8th ed., pp. 5, 74-75.
14
Response of Rep. Gregorio A. Andolana to the interpellation of Rep. John Henry R.

Osmea on ouse Bill No. 9125, Journal of August 20 and 21, 1997 of the House of
Representatives, p.20.
15
16
Philippines Yearbook (1998 ed.), p. 366.
17
Article II of the Constitution, entitled State Principles and Policies.
18
Article XII of the Constitution, entitled National Economy and Patrimony.
19
Article XIII of the Constitution, entitled Social Justice and Human Rights.
20
Ibid.
Article XIV of the Constitution, entitled Education, Science, Technology, Arts, Culture, and
Sports.
21
22
Article XVI of the Constitution, entitled General Provisions.
SECTION 2. Declaration of State Policies . - The State shall recognize and promote all the
rights of Indigenous Cultural Communities/Indigenous Peoples (ICCs/IPs) hereunder
enumerated within the framework of the Constitution:
23
a) The State shall recognize and promote the rights of ICCs/IPs within the framework
of national unity and development;
b) The State shall protect the rights of ICCs/IPs to their ancestral domains to ensure
their economic, social and cultural well being and shall recognize the applicability of
customary laws governing property rights or relations in determining the ownership
and extent of ancestral domain;
c) The State shall recognize, respect and protect the rights of ICCs/IPs to preserve and
develop their cultures, traditions and institutions. It shall consider these rights in the
formulation of national laws and policies;
d) The State shall guarantee that members of the ICCs/IPs regardless of sex, shall
equally enjoy the full measure of human rights and freedoms without distinction or
discrimination;
e) The State shall take measures, with the participation of the ICCs/IPs concerned, to
protect their rights and guarantee respect for their cultural integrity, and to ensure that
members of the ICCs/IPs benefit on an equal footing from the rights and opportunities
which national laws and regulations grant to other members of the population; and
f) The State recognizes its obligations to respond to the strong expression of the
ICCs/IPs for cultural integrity by assuring maximum ICC/IP participation in the
direction of education, health, as well as other services of ICCs/IPs, in order to render
such services more responsive to the needs and desires of these communities.
Towards these ends, the State shall institute and establish the necessary mechanisms to
enforce and guarantee the realization of these rights, taking into consideration their
customs, traditions, values, beliefs, interests and institutions, and to adopt and
implement measures to protect their rights to their ancestral domains.
24
See Sections 13-20, R.A. 8371.
25
26
27
Dumlao v. COMELEC, 95 SCRA 392, 400 (1980), citing People vs. Vera, 65 Phil. 56
(1937).
28
29
Subic Bay Metropolitan Authority v. COMELEC, 262 SCRA 492, 513 (1996).
30
Board of Optometry v. Colet, 260 SCRA 88, 104 (1996).
31
Muskrat v. United States, 219 US 346, 362 (1913).
32
WEBSTERSS THIRD NEW INTERNATIONAL DICTIONARY, 1976, p. 497.
33
United States v. Freuhauf, 365 US 146 (1961).
Association of Small Landowners v. Secretary of Agrarian Reform, 175 SCRA 343, 364
(1989); Joya v. PCGG, 225 SCRA 568 (1993).
34
35
People v. Vera, 65 Phil. 56, 89 (1937).
36
Lozada v. COMELEC, 120 SCRA 337, 342 (1983).
37
US v. Richardson, 418 US 166, 194 S Ct 2940, 41 L Ed 2d 678 (1974).
Kilosbayan v. Guingona, 232 SCRA 110, 135 (1994), citing, among others, Philconsa v.
Gimenez, 15 SCRA 479 (1965); CLU V. Executive Secretary, 194 SCRA 317 (1991);
Guingona v. Carague, 196 SCRA 221 (1991); Osmena v. COMELEC, 199 SCRA 750 (1991);
Basco v. PAGCOR, 197 SCRA 52 (1991); Carpio v. Executive Secretary, 206 SCRA 290
(1992).
38
In Kilosbayan v. Morato (250 SCRA 130 [1995]) the Court discoursed on the rule on
standing as follows: taxpayers may sue on the claim of illegal disbursement of funds,
or to assail the constitutionality of a tax measure; voters may question the validity of
election laws; citizens may raise constitutional questions of transcendental importance
which must be settled early; and, legislators may question the validity of official acts
which infringe their prerogatives.
39
Araneta v. Dinglasan, 84 Phil. 368, 373 (1949).
Assn. of Small Landowners in the Philippines v. Secretary of Agrarian Reform, 175 SCRA
343, 364-365 (1989).
40
41
16 Phil. 366 (1910), citing HIGH, EXTRAORDINARY LEGAL REMEDIES.
42
Id., at 371.
43
Id., at 374-375.
44
136 SCRA 27, 37 (1985).
45
177 SCRA 374, 383 (1989).
46
224 SCRA 792 (1993).
47
Id., at 805.
48
Ibid.
49
Philconsa v. Mathay, 18 SCRA 300, 306 (1966).
50
Philconsa v. Gimenez, 15 SCRA 479, 487 (1965), citing 11 Am Jur 761.
Sanidad v. COMELEC, 73 SCRA 333, 358-359 (1976); Pascual v. Secretary of Public

Works, 110 Phil. 331 (1960); Tan v. Macapagal, 43 SCRA 677, 680 (1972).
51
Section 79. Appropriations.- The amount necessary to finance the initial implementation of
this Act shall be charged against the current year's appropriation of the ONCC and the OSCC.
Thereafter, such sums as may be necessary for its continued implementation shall be
included in the annual General Appropriations Act.
52
Section 74. Merger of ONCC/OSCC.The Office for Northern Cultural Communities

(ONCC) and the Office for Southern Cultural Communities (OSCC), created under
Executive Order Nos. 122-B and 122-C respectively, are hereby merged as organic offices of
the NCIP and shall continue to function under a revitalized and strengthened structure to
achieve the objectives of the NCIP x x x.
53
54
Section 2, Rule 65, 1997 RULES OF CIVIL PROCEDURE.
55
Section 3, Rule 65, 1997 RULES OF CIVIL PROCEDURE.
56
Article VIII of the Constitution states:

Sec. 5. The Supreme Court shall have the following powers:
(1) Exercise original jurisdiction over cases affecting ambassadors, other public
ministers and consuls, and over petitions for certiorari, prohibition, mandamus, quo
warranto, and habeas corpus.
xxx
Batas Pambansa Blg. 129 (B.P. 129), as amended, provides:
Sec. 9. Jurisdiction.-The Court of Appeals shall exercise:
(1) Original jurisdiction to issue writs of mandamus, prohibition, certiorari, habeas
corpus, and quo warranto, and auxiliary writs or processes, whether or not in aid of its
appellate jurisdiction;
x x x.
Sec. 21. Original jurisdiction in other cases.- Regional Trial Courts shall exercise
original jurisdiction:
(1) In the issuance of writs of certiorari, prohibition, mandamus, quo warranto, habeas
corpus and injunction which may be enforced in any part of their respective regions;
and
(2) In actions affecting ambassadors and other public ministers and consuls.
57
Tano vs. Socrates, 278 SCRA 154, 173-174 (1997).
58
172 SCRA 415 (1989).
59
Id., at 424.
Section 7. Rights to Ancestral Domains.The rights of ownership and possession of

ICCs/IPs to their ancestral domains shall be recognized and protected. Such rights shall
include:
60
(a) Right of Ownership. The right to claim ownership over lands, bodies of water
traditionally and actually occupied by ICCs/IPs, sacred places, traditional
(b) hunting and fishing grounds, and all improvements made by them at any time
within the domains;
xxx
Section 3(l) Native Title refers to pre-conquest rights to lands and domains which, as far
back as memory reaches, have been held under a claim of private ownership by ICCs/IPs,
have never been public lands and are thus indisputably presumed to have been held that way
since before the Spanish Conquest; x x x
61
Section 3(p) Time Immemorial - refers to a period of time when as far back as
memory can go, certain ICCs/IPs are known to have occupied, possessed in the
concept of owners, and utilized a defined territory devolved to them, by operation of
customary law or inherited from their ancestors, in accordance with their customs and
traditions.
Section 3(b) Ancestral Lands Subject to Section 56 hereof, refers to land occupied,
possessed and utilized by individuals, families and clans who are members of the ICCs/IPs
since time immemorial, by themselves or through their predecessors-in-interest, under claims
of individual or traditional group ownership, continuously to the present except when
interrupted by war, force majeure or displacement by force, deceit, stealth, or as a
consequence of government projects or any other voluntary dealings entered into by the
government and private individuals/corporations, including, but not limited to, residential
lots, rice terraces or paddies, private forests, swidden farms and tree lots;
62
Section 3(a) Ancestral Domains Subject to Section 56 hereof, refer to all areas generally
belonging to ICCs/IPs comprising lands, inland waters, coastal areas and natural resources
therein, held under a claim of ownership, occupied or possessed by Indigenous peoples, by
themselves or through their ancestors, communally or individually since time immemorial,
continuously to the present except when interrupted by war, force majeure or displacement
by force, deceit, stealth or as a consequence of government projects or any other voluntary
dealings entered into by the government and private individuals/corporations, and which are
necessary to ensure their economic, social and cultural welfare. It shall include ancestral
63
lands, forests, pasture, residential, agricultural, and other lands individually owned whether
alienable and disposable or otherwise, hunting grounds, burial grounds, worship areas, bodies
of water, mineral and other resources, and lands which may no longer be exclusively be
occupied by Indigenous peoples but from which they traditionally had access to for their
subsistence and traditional activities, particularly the home ranges of ICCs/IPs who are still
nomadic and/or shifting cultivators.
64
Ibid.
Hebron v. Reyes, 104 Phil. 175 (1958); San Miguel Corporation v. Avelino, 89 SCRA 69
(1979).
65
66
In re Guarina, 24 Phil 37 (1913).
67
See Lee Hong Hok vs. David, 48 SCRA 372 (1972).
68
Pea, Registration of Land Titles and Deeds, 1994 rev. ed., p. 15.
69
1 Bouviers Law Dictionary, 3rd revision, p. 1759.
70
Blacks Law Dictionary, 6th ed., p. 1282.
71
76 Corpus Juris Secundum, citing Hart v. Burnett, 15 Cal. 530, 566.
Washburn, p. 44; see also Williams, Principles Of The Law On Real Property, 6th ed.
(1886), p.2; Bigelow, p. 2.
72
73
Warvelle, Abstracts and Examination of Title to Real Property (1907), p.18.
74
1 Dictionary of English Law (Jowitt, ed.), p. 797.
75
41 Phil. 935, 212 U.S. 449, 53 L Ed. 594 (1909).
Cario vs. Insular Government, 7 Phil. 132 (1906). The Philippine Supreme Court in this
case held that in the Philippines, there is no conclusive presumption of a grant of title to land
from the Government founded merely upon long possession of the same by the applicant.
76
77
Cario vs. Insular Government, supra note 75, at 941.
78
Section 10, Philippine Bill of 1902.
79
75 Phil 890 (1946).
80
Id., at 892.
81
Memorandum of Petitioners, Rollo, p. 861.
82
Section 3, Article XII, Constitution.
Under the Treaty of Tordesillas, the world was divided between Spain and Portugal, with
the former having exclusive power to claim all lands and territories west of the Atlantic
83
Ocean demarcation line (Lynch, The Legal Bases of Philippine Colonial Sovereignty, 62 Phil
L J 279, 283 [1987]).
See AKEHURST, A MODERN INTRODUCTION TO INTERNATIONAL LAW, 5th ed.,
142-143.
84
85
See Cruz, International Law, 1996 ed., pp. 106-107.
86
Cario v. Insular Government, supra note 75, at 939.

This point finds significance in light of the distinction between sovereignty and
dominion. Sovereignty is the right to exercise the functions of a State to the exclusion
of any other State (Case Concerning the Island of Las Palmas [1928], UNRIAA II
829, 838). It is often referred to as the power of imperium, which is defined as the
government authority possessed by the State (Bernas, The Constitution of the
Republic of the Philippines: A Commentary Vol. 2, p. 419). On the other hand,
dominion, or dominium, is the capacity of the State to own or acquire property such as
lands and natural resources.
Dominium was the basis for the early Spanish decrees embracing the theory of jura
regalia. The declaration in Section 2, Article XII of the 1987 Constitution that all lands
of the public domain are owned by the State is likewise founded on dominium (Ibid.).
If dominium, not imperium, is the basis of the theory of jura regalia, then the lands
which Spain acquired in the 16th century were limited to non-private lands, because it
could only acquire lands which were not yet privately-owned or occupied by the
Filipinos. Hence, Spain acquired title only over lands which were unoccupied and
unclaimed, i.e., public lands.
Phelan, The Hispanization of the Philippines: Spanish Aims and Filipinos Responses, 15651700 (1959), pp. 8-9.
87
88
Cario vs. Insular Government, supra note 75, at 943.
Book 4, Title 12, Law 9, decreed by Philip II, 1 June 1594. We order that grants of farms
and lands to Spaniards be without injury to the Indians and that those which have been
granted to their loss and injury, be returned to the lawful owners.
89
Book 4, Title 12, Law 14. We having acquired full sovereignty over the Indies, and all
lands, territories, and possessions not heretofore ceded away by our royal
predecessors, or by us, or in our name, still pertaining the royal crown and patrimony,
it is our will that all lands which are held without proper and true deeds of grant be
restored to us according as they belong to us, in order that x x x after distributing to
the natives what may be necessary for tillage and pasteurage, confirming them in
what they now have and giving them more if necessary, all the rest of said lands may
remain free and unencumbered for us to dispose of as we wish. [Quoted in Valenton v.
Murciano, 3 Phil. 537, 542-543 (1904).] (Emphasis supplied.)
Book 6, Title 1, Law 15, decreed by King Philip II, at Madrid, 7 November 1574. We
command that in the Philippine Islands the Indians not be removed from one to
another settlement by force and against their will.
Book 6, Title 1, Law 23, otherwise known as Ordinance 10 of 1609 decreed by Philip
III. It is right that time should be allowed the Indians to work their own individual
lands and those of the community.
Book 6, Title 1, Law 32, decreed by Philip II, 16 April 1580. We command the
Viceroys, Presidents, and Audiencias that they see to it that the Indians have complete
liberty in their dispositions.
Royal Cedula of October 15, 1754. Where such possessors shall not be able to
produce title deeds it shall be sufficient if they shall show that ancient possession, as
a valid title by prescription; x x x. [Quoted in Valenton v. Murciano, supra, at 546.]
(Emphasis supplied.)
Article 6 of the royal decree of June 25, 1880, quoted in Valenton v. Murciano, supra note
89 at 549.
90
91
Cario v. Insular Government, supra note 75, at 944.
92
Memorandum of Petitioners, par. 3.4, Rollo, pp. 845-846.
93
The Treaty of Paris reads in part:

Article III. Spain cedes to the United States the archipelago known as the Philippine
Islands, x x x.
The United States will pay to Spain the sum of twenty million dollars, within three
months after the exchange of the ratifications of the present treaty.
xxx
Article VIII. In conformity with the provisions of Articles One, Two, and Three of this
treaty, Spain relinquishes in Cuba, and cedes in Porto Rico and other islands of the
West Indies, in the Island of Guam, and in the Philippine Archipelago, all the
buildings, wharves, barracks, forts, structures, public highways, and other immovable
property which, in conformity with law, belong to the public domain and as such
belong to the Crown of Spain.
And it is hereby declared that the relinquishment or cession, as the case may be, to
which the preceding paragraph refers, can not in any respect impair the property or
rights which by law belong to the peaceful possession of property of all kinds, of
provinces, municipalities, public or private establishments, ecclesiastical or civic
bodies, or any other associations having legal capacity to acquire and possess property
in the aforesaid territories renounced or ceded, or of private individuals, of whatsoever
nationality such individuals may be.
94
The statute reads in part:

Section 12. That all the property and rights which may have been acquired in the
Philippine Islands under the treaty of peace with Spain, signed December tenth,
eighteen hundred and ninety-eight, except such land or other property as shall be
designated by the President of the United States for military and other reservations of
the Government of the United States, are hereby placed under the control of the
Government of said Islands, to be administered for the benefit of the inhabitants

thereof, except as provided by this Act.
McKinleys Instructions to the Second Philippine Commission, in Mendoza, From
McKinleys Instructions to the New Constitution: Documents on the Philippine
Constitutional System (1978) p. 71.
95
96
Id., at 65-75; Section 5, Philippine Bill of 1902.
97
Solicitor Generals Memorandum, Rollo, p. 668-669.
98
Id, at 668.
99
Section 1, Article XII, 1935 Constitution reads:

All agricultural, timber, and mineral lands of the public domain, waters, minerals,
coal, petroleum, and other mineral oils, all forces of potential energy, and other natural
development, or utilization shall be limited to citizens of the Philippines, or to
corporations or associations at least sixty per centum of the capital of which is owned
by such citizens, subject to any existing right, grant, lease, or concession at the time of
the inauguration of the Government established under this Constitution. Natural
resources, with the exception of public agricultural land, shall not be alienated, and no
license, concession, or lease for the exploitation, development, or utilization of any of
the natural resources shall be granted for a period exceeding twenty-five years,
renewable for another twenty five years, except as to water rights for irrigation, water
supply, fisheries or industrial uses other than the development of water power, in
which cases beneficial use may be the measure and limit of the grant.
100
Central Azucarera Don Pedro v. Central Bank, 104 Phil 598 (1954).
Sec. 5, Article XII. The State, subject to the provisions of this Constitution and national
development policies and programs, shall protect the rights of indigenous cultural
communities to their ancestral lands to ensure their economic, social, and cultural well-being.
101
The Congress may provide for the applicability of customary laws governing property
rights and relations in determining the ownership and extent of ancestral domains.
102
See Memorandum of Petitioners, Rollo, pp. 863-864.
103
Sibal, Philippine Legal Encyclopedia, p. 893.
104
Black's Law Dictionary, 5th ed., p. 1189.
105
Ibid.
106
107
Id., at 37.
108
Solicitor Generals Memorandum, Rollo, p. 665.
109
Torres v. Tan Chim, 69 Phil 518 (1940); CIR v.Guerrero, 21 SCRA 180 (1967).
110
111
See 1 COOLEY, CONST., LIMITATIONS, 8th ed., pp. 127-129.
112
See pp. 8-9 of this Opinion for the full text of the constitutional provisions mentioned.
113
Section 1, Article XII provides:

The goals of the national economy are a more equitable distribution of
opportunities, income, and wealth; a sustained increase in the amount of goods and
services produced by the nation for the benefit of the people; and an expanding
productivity as the key to raising the quality of life for all, especially the
underprivileged.
The State shall promote industrialization and full employment based on sound
agricultural development and agrarian reform, through industries that make full and
efficient use of human and natural resources, and which are competitive in both
domestic and foreign markets. However, the State shall protect Filipino enterprises
against unfair foreign competition and trade practices.
In the pursuit of these goals, all sectors of the economy and all regions of the country
shall be given optimum opportunity to develop. Private enterprises, including
corporations, cooperatives and similar collective organizations, shall be encouraged to
broaden the base of their ownership. (Emphasis supplied.)
Bernas, The Intent of the 1986 Constitution Writers, p. 800, citing the sponsorship speech
of Dr. Bernardo Villegas, Chairman of the Committee on National Economy and Patrimony.
114
115
116
Petition, Rollo, pp.18-19.
117
Id., at 20.
118
Section 3. Definition of Terms. -For Purposes of this Act, the following terms shall mean:
a) Ancestral Domains. -Subject to Section 56 hereof, refer to all areas generally
belonging to ICCs/IPs comprising lands, inland waters, coastal areas, and natural
resources therein, held under a claim of ownership, occupied or possessed by
ICCs/IPs, by themselves or through their ancestors, communally or individually since
time immemorial, continuously to the present except when interrupted by war, force
majeure or displacement by force, deceit, stealth or as a consequence of government
projects or any other voluntary dealings entered into by government and private
individuals/corporations, and which are necessary to ensure their economic, social and
cultural welfare. It shall include ancestral lands, forests, pasture, residential,
agricultural, and other lands, individually owned whether alienable and disposable or
otherwise, hunting grounds, burial grounds, worship areas, bodies of water, mineral
and other natural resources, and lands which may no longer be exclusively occupied
by ICCs/IPs but from which they traditionally had access to for their subsistence and
traditional activities, particularly the home ranges of ICCs/IPs who are still nomadic
and/or shifting cultivators.
Section 5. Indigenous Concept of Ownership- Indigenous concept of ownership sustains
the view that ancestral domains and all resources found therein shall serve as the material
bases of their cultural integrity. The indigenous concept of ownership generally holds that
ancestral domains are the ICCs/IPs private but community property which belongs to all
generations and therefore cannot be sold, disposed or destroyed. It likewise covers
sustainable traditional resource rights.
119
Section 7. Rights to Ancestral Domains.The rights of ownership and possession of

ICCs/IPs to their ancestral domains shall be recognized and protected. Such rights shall
include:
120
(a) Right of Ownership. The right to claim ownership over lands, bodies of water
traditionally and actually occupied by ICCs/IPs, sacred places, traditional hunting and
fishing grounds, and all improvements made by them at any time within the domains;
(b) Right to Develop Lands and Natural Resources. Subject to Section 56 hereof,
right to develop, control and use lands and territories traditionally occupied, owned, or
used; to manage and conserve natural resources within the territories and uphold the
responsibilities for future generations; to benefit and share the profits from allocation
and utilization of the natural resources found therein; the right to negotiate the terms
and conditions for the exploration of natural resources in the areas for the purpose of
ensuring ecological, environmental protection and the conservation measures,
pursuant to national and customary laws; the right to an informed and intelligent
participation in the formulation and implementation of any project, government or
private, that will affect or impact upon the ancestral domains and to receive just and
fair compensation for any damages which they may sustain as a result of the project;
and the right to effective measures by the government to prevent any interference
with, alienation and encroachment upon these rights; x x x (Emphasis supplied.)
121
Section 2, Article XII, Constitution.
Tolentino, Commentaries and Jurisprudence on the Civil Code of the Philippines, Vol. II,
p. 42 (1983); see also Articles 427 and 428, Civil Code.
122
123
Id., at 43.
124
125
Ibid.
Should be Section 7. The Transcript of Session Proceedings of the deliberations of the

Bicameral Conference Committee on National Cultural Communities regarding House Bill
No. 9125 refers to Section 8 but the Committee was actually discussing Section 7 on Rights
to Ancestral Domains.
126
Transcript of Session Proceedings, Bicameral Conference Committee on National Cultural

Communities, October 9, 1997, XIV-2.
127
128
Sections 7 (b) and Section 57, R.A. 8371.
129
40 Phil. 1017 (1909), 215 US 16, 54 L Ed 72.
Ibid. The facts of the case were discussed in Fianza vs. Reavies, (7 Phil. 610 [1909]) thus:
Jose Fianza, et al., members of the Igorot tribe, claimed that he and his predecessors had, for
more than fifty years prior to 1901, possessed a certain parcel of mineral land on which were
found two gold mines. The same parcel of land was also claimed by an American, J.F.
Reavies, who entered the land in 1901 and proceeded to locate mining claims according to
the mining laws of the United States. The Philippine Supreme Court held that Fianza, et al.
were the rightful owners of the mineral lands pursuant to Section 45 of the Philippine Bill of
1902 which in sum states that where a person have held or worked on their mining claims for
a period equivalent to ten years, evidence of such possession and working of the claims for
such period shall be sufficient to establish a right to a patent thereto. On appeal, the United
States Supreme Court affirmed the decision of the Philippine Supreme Court and held that
the indigenous peoples were the rightful owners of the contested parcel of land, stating that
the possession and working by Fianza, et al. of the mining claim in the Philippine Islands for
the time required under the Section 45 of the Philippine Bill of 1902 to establish the right to a
patent, need not have been under a claim of title.
130
131
Memorandum of Intervenors Flavier, et al., Rollo, p. 918.
Article I of the Decree of Superior Civil Government of January 29, 1864 provided that
"The supreme ownership of mines throughout the kingdom belong to the crown and the king.
They shall not be exploited except by persons who obtained special grant from this superior
government and by those who may secure it thereafter, subject to this regulation."
(FRANCISCO, PHILIPPINE LAWS ON NATURAL RESOURCES, 2nd ed. [1956], p. 14,
citing the unpublished case of Lawrence v. Garduno, G.R. No. 19042.)
132
Article 2 of the Royal Decree of May 14, 1867 (the Spanish Mining Law), the law in
force at the time of the cession of the Philippines to the United States contained a
similar declaration, thus:
The ownership of the substances enumerated in the preceding article (among them
those of inflammable nature) belongs to the state, and they cannot be disposed of
without an authorization issued by the Superior Civil Governor.
The Spanish Civil Code contained the following analogous provisions affirming the
States ownership over minerals:
Art. 339. Property of public dominium isxxx
2. That belonging exclusively to the State which, without being of general public use,
is employed in some public service, or in the development of the national wealth, such
as walls, fortresses, and other works for the defense of the territory, and mines, until
granted to private individuals.
Art. 350. The proprietor of land is the owner of the surface and of everything under it
and may build, plant or excavate thereon, as he may see fit, subject to any existing
easements and to the provisions of the Laws on Mines and Waters and to police
regulations.
After the Philippines was ceded to Spain, the Americans continued to adhere to the
concept of State-ownership of natural resources. However, the open and free
exploration, occupation and purchase of mineral deposits and the land where they may
be found were allowed under the Philippine Bill of 1902. Section 21 thereof stated:
Sec. 21. That all valuable mineral deposits in public lands in the Philippine Islands,
both surveyed and unsurveyed, are hereby declared to be free and open to exploration,
occupation and purchase, and the land in which they are found, to occupation and
purchase, by citizens of the United States, or of said Islands: Provided, That when on
any lands in said Islands entered and occupied as agricultural lands under the
provisions of this Act, but not patented, mineral deposits have been found, the
working of such mineral deposits is hereby forbidden until the person, association, or
corporation who or which has entered and is occupying such lands shall have paid to
the Government of said Islands such additional sum or sums as will make the total
amount paid for the mineral claim or claims in which said deposits are located equal
to the amount charged by the Government for the same as mineral claims.
Other natural resources such as water and forests were similarly regarded as belonging
to the State during both the Spanish and American rule in the Philippines, viz:
Article 33 of the Law of Waters of August 3, 1866 defined waters of public ownership
as (1) the waters springing continuously or intermittently from lands of the public
domain; (2) the waters of rivers; and (3) the continuous or intermittent waters of
springs and creeks running through their natural channels.
Article 1 of the same law states:
The following are also part of the national domain open to public use:
1. The coasts or maritime frontiers of the Philippine territory with their coves,
inlets, creeks, roadsteads, bays and ports
2. The coast of the sea, that is, the maritime zone encircling the coasts, to the
full width recognized by international law. The state provides for and regulates
the police supervision and the uses of this zone as well as the right of refuge
and immunity therein, in accordance with law and international treaties.
With respect to forests, there are references made regarding State-ownership of forest
lands in Supreme Court decisions (See Director of Forestry vs. Munoz, 23 SCRA
1183, 1198-1199 [1968]; Director of Lands vs. Abanzado, 65 SCRA 5, 11 [1975];
Mapa vs. Insular Government, 10 Phil. 175, 184 [1908]; Montano vs. Insular
Government, 12 Phil 572, 584 [1909]).
The States ownership over natural resources was embodied in the 1935, 1973 and
1987 Constitutions. Section 1, Article XII of the 1935 Constitution declared:
All agricultural, timber and mineral lands of the public domain, waters, minerals, coal,
petroleum and other mineral oils, all forces of potential energy, and other natural
development, or utilization shall be limited to citizens of the Philippines, or to
corporations or associations at least sixty per centum of the capital of which is owned
by such citizens, subject to any existing right, grant, lease or concession at the time of
the inauguration of the Government established under this Constitution. Natural

resources, with the exception of public agricultural land, shall not be alienated, and no
license, concession, or lease for the exploitation, or utilization of any of the natural
resources shall be granted for a period exceeding twenty-five years, renewable for
another twenty -five years, except as to water rights for irrigation, water supply,
fisheries, or industrial uses other than the development of water power, in which cases
beneficial use may be the measure and the limit of the grant.
Section 8, Article XIV of the 1973 Constitution provided:
All lands of the public domain, waters, minerals, coal, petroleum and other mineral
oils, all forces of potential energy, fisheries, wildlife, and other natural resources of the
Philippines belong to the State. With the exception of agricultural, industrial or
commercial, residential, and resettlement lands of the public domain, natural resources
shall not be alienated, and no license, concession, or lease for the exploration,
development, exploitation, or utilization of any of the natural resources shall be
granted for a period exceeding twenty-five years, renewable for not more than twentyfive years, except as to water rights for irrigation water supply, fisheries, or industrial
uses other than the development of water power, in which cases, beneficial use may be
the measure and limit of the grant.
133
Noblejas, Philippine Law on Natural Resources 1961 Revised Ed., p. 6
See Laurel (ed.), Proceedings of the Philippine Constitutional Convention, Vol. VI, pp.
494-495.
134
Explanatory Note of the Committee on Nationalization of Lands and Natural Resources,

September 14, 1934, reproduced in Laurel (ed.), Proceedings of the Philippine Constitutional
Convention, Vol. VII, pp. 464-468; see also De Leon and De Leon, Jr., Philippine
Constitutional Law: Principles and Cases, Vol. 2, pp. 801-802.
135
136
Section 8, Article XIV, see note 139 for the full text of the provision.
137
Paragraph 1, Section 2, Article XII of the 1987 Constitution provides:

All lands of the public domain, waters, minerals, coal, petroleum, and other minerals
oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and
fauna, and other natural resources are owned by the State. with the exception of
agricultural lands, all other natural resources shall not be alienated. The exploration,
development, and utilization of natural resources shall be under the full control and
supervision of the State. The State may directly undertake such activities, or it may
enter into co-production, joint venture, or production-sharing agreements with Filipino
citizens, or corporations and associations at least sixty per centum of whose capital is
owned by such citizens. Such agreements may be for a period not exceeding twentyfive years, renewable for not more than twenty-five years, and under such rights for
irrigation, water supply, fisheries, or industrial uses other than the development of
water power, beneficial use may be the measure and limit of the grant.
Section 7. Rights to Ancestral Domains.The rights of ownership and possession
of ICCs/IPs to their ancestral domains shall be recognized and protected. Such rights
shall include:
138
xxx
b) Right to Develop Lands and Natural Resources.- Subject to Section 56 hereof, right
to develop, control and use lands and territories traditionally occupied, owned, or
used; to manage and conserve natural resources within the territories and uphold
the responsibilities for future generations; to benefit and share the profits from
allocation and utilization of the natural resources found therein; the right to
negotiate the terms and conditions for the exploration of natural resources in the
areas for the purpose of ensuring ecological, environmental protection and the
conservation measures, pursuant to national and customary laws; the right to an
informed and intelligent participation in the formulation and implementation of any
project, government or private, that will affect or impact upon the ancestral domains
and to receive just and fair compensation for any damages which they may sustain as
a result of the project; and the right to effective measures by the government to
prevent any interference with, alienation and encroachment upon these rights;
Section 57. Natural Resources within Ancestral Domains.-The ICCs/IPs shall have priority
rights in the harvesting, extraction, development or exploitation of any natural resources
within the ancestral domains. A non-member of the ICCs/IPs concerned may be allowed to
take part in the development and utilization of the natural resources for a period of not
exceeding twenty-five (25) years renewable for not more than twenty-five (25) years:
Provided, That a formal and written agreement is entered into with the ICCs/IPs concerned or
that the community, pursuant to its own decision making process, has agreed to allow such
operation: Provided, finally, That the NCIP may exercise visitorial powers and take
appropriate action to safeguard the rights of the ICCs/IPs under the same contract.
139
Section 59. Certification Precondition - All departments and other governmental agencies
shall henceforth be strictly enjoined from issuing, renewing, or granting any concession,
license or lease, or entering into any production-sharing agreement, without prior
certification from the NCIP that the area affected does not overlap with any ancestral domain.
Such certification shall only be issued after a field-based investigation is conducted by the
Ancestral Domains Office of the area concerned: Provided, That no certification shall be
issued by the NCIP without the free and prior informed and written consent of
Indigenous peoples concerned: Provided, further, That no department, government agency
or government-owned or controlled corporation may issue new concession, license, lease, or
production sharing agreement while there is a pending application for a CADT: Provided,
finally, That the ICCs/IPs shall have the right to stop or suspend, in accordance with this Act,
any project that has not satisfied the requirement of this consultation process.
140
Section 58. Environmental Considerations.- Ancestral domains or portions thereof, which

are found to be necessary for critical watersheds, mangroves, wildlife sanctuaries,
wilderness, protected areas, forest cover, or reforestation as determined by appropriate
agencies with the full participation of the Indigenous peoples concerned shall be maintained,
managed and developed for such purposes. The Indigenous peoples concerned shall be
given the responsibility to maintain, develop, protect and conserve such areas with the
full and effective assistance of government agencies. Should the Indigenous peoples
decide to transfer the responsibility over the areas, said decision must be made in writing.
The consent of the Indigenous peoples should be arrived at in accordance with its customary
laws without prejudice to the basic requirements of existing laws on free and prior informed
consent: Provided, That the transfer shall be temporary and will ultimately revert to the
Indigenous peoples in accordance with the program for technology transfer; Provided,
141
further, That no Indigenous peoples shall be displaced or relocated for the purpose
enumerated under this section without the written consent of the specific persons authorized
to give consent.
142
Citing Section 2, Article XII of the Constitution.
143
Memorandum of Petitioners, Id., at 840-841.
State v. Lathrop, 93 Ohio St 79, 112 NE 209, cited in 16 Am Jur 2d, Constitutional Law,
100.
144
Old Wayne Mutual Life Assn. v. McDonough, 204 US 8, 51 L Ed 345, cited in 16 Am Jur
2d Constitutional Law, 100.
145
146
Third paragraph, Section 2, Article XII, Constitution

The Congress may, by law, allow small scale-utilization of natural resources by
Filipino citizens, as well as cooperative fish farming, with priority to subsistence
fishermen and fishworkers in rivers, lakes, bays, and lagoons.
147
Section 6, Article XIII, Constitution

The State shall apply the principles of agrarian reform or stewardship, whenever
applicable in accordance with law, in the disposition and utilization of other natural
resources, including lands of the public domain under lease or concession suitable to
agriculture, subject to prior rights, homestead rights of small settlers, and the rights of
the indigenous communities to their ancestral lands.
The State may resettle landless farmers and farmworkers in its own agricultural estates
which shall be distributed to them in the manner provided by law.
148
Section 7, Article XIII, Constitution

The State shall protect the rights of subsistence fishermen, especially of local
communities, to the preferential use of the communal marine and fishing resources,
both inland and offshore. It shall provide support to such fishermen through
appropriate technology and research, adequate financial, production, and marketing
assistance, and other services. The State shall also protect, develop, and conserve such
resources. The protection shall extend to offshore fishing grounds of subsistence
fishermen against foreign intrusion. Fishworkers shall receive a just share from their
labor in the utilization of marine and fishing resources.
Bower v. Big Horn Canal Assn. (Wyo) 307 P2d 593, cited in 16 Am Jur 2d Constitutional
Law, 100.
149
Republic Act No. 7076 (the Small-Scale Mining Act of 1991), Republic Act No. 7942 (the
Philippine Mining Act of 1995).
150
Section 3(b) of R.A. 7076 defines "small-scale mining" as referring to mining activities
which rely heavily on manual labor using simple implements and methods and do not use
explosives or heavy mining equipment.
151
152
Section 7, R.A. 7076 provides:

Ancestral lands. - No ancestral land may be declared as a peoples small-scale mining
area without the prior consent of the cultural communities concerned: Provided, That,
if ancestral lands are declared as peoles small-scale mining areas, the members of the
cultural communities therein shall be given priority for the awarding of a peoples
small-scale mining contract.
153
154
155
Sec. 3(q), Chapter 1, Republic Act No. 7942 (the Philippine Mining Act of 1995).
156
157
Sections 7(a) and (b), R.A. 8371.
158
Presidential Decree No. 1151 (1971).
159
Presidential Decree No. 1586 (1978) and DENR Administrative Order No. 37 (1996).
160
Republic Act No. 7160 (1991).
161
Republic Act No. 7942.
162
Petition, Rollo, pp. 23-25.
163
Ramirez v. CA, 248 SCRA 590, 596 (1995).
164
Section 53 (f), R.A. 8371.
165
166
167
Sections 40, 51, 52, 53, 54, 62 and 66, R.A. No. 8371.
168
Sections 63 and 65, R.A. No. 8371.
Section 40. Composition.- The NCIP shall be an independent agency under the Office of
the President and shall be composed of seven (7) Commissioners belonging to the ICCs/IPs,
one (1) of whom shall be the Chairperson. The Commissioners shall be appointed by the
President of the Philippines from a list of recommendees submitted by authentic ICCs/IPs:
Provided, That the seven (7) Commissioners shall be appointed specifically from each of the
following ethnographic areas, Region I and the Cordilleras; Region II, the rest of Luzon;
Island Groups including Mindoro, Palawan, Romblon, Panay and the rest of the Visayas;
Northern and Western Mindanao; Southern and Eastern Mindanao; and Central Mindanao:
Provided, That at least two (2) of the seven (7) Commissioners shall be women.
169
Section 66. Jurisdiction of the NCIP.- The NCIP, through its regional offices, shall have
jurisdiction over all claims and disputes involving rights of ICCs/IPs. Provided, however,
170
That no such dispute shall be brought to the NCIP unless the parties have exhausted all
remedies provided under their customary laws. For this purpose, a certification shall be
issued by the Council of Elders/Leaders who participated in the attempt to settle the dispute
that the same has not been resolved, which certification shall be a condition precedent to the
filing of a petition with the NCIP.
Section 62. Resolution of Conflicts.- In cases of conflicting interest, where there are
adverse claims within the ancestral domains as delineated in the survey plan, and which can
not be resolved, the NCIP shall hear and decide, after notice to the proper parties, the
disputes arising from the delineation of such ancestral domains: Provided, That if the dispute
is between and/or among ICCs/IPs regarding the traditional boundaries of their respective
ancestral domains, customary process shall be followed. The NCIP shall promulgate the
necessary rules and regulations to carry out its adjudicatory functions: Provided, further, That
any decision, order, award or ruling of the NCIP on any ancestral domain dispute or on any
matter pertaining to the application, implementation, enforcement and interpretation of this
Act may be brought for Petition for Review to the Court of Appeals within fifteen (15) days
from receipt of a copy thereof.
171
172
Memorandum of Petitioners, Rollo ,pp. 873-874.
Section 3 (f). Customary Laws - refer to a body of written and/or unwritten rules, usages,
customs and practices traditionally and continually recognized, accepted and observed by
respective ICCs/IPs;
173
xxx
Sec. 63. Applicable Laws. - Customary laws, traditions and practices of the ICCs/IPs
of the land where the conflict arises shall be applied first with respect to property
rights, claims and ownerships, hereditary succession and settlement of land disputes.
Any doubt or ambiguity in the application and interpretation of laws shall be resolved
in favor of the ICCs/IPs.
Sec. 65. Primacy of Customary Laws and Practices. - When disputes involve ICCs/IPs,
customary laws and practices shall be used to resolve the dispute.
174
175
Memorandum of Petitioners, Rollo, pp.875-876.
176
R.A. 8371 states:

Sec. 65. Primacy of Customary Laws and Practices. - When disputes involve
ICCs/IPs, customary laws and practices shall be used to resolve the dispute.
177
See Secs. 62 and 63, R.A. 8371.
178
Sec. 65, R.A. 8371.
179

Article 12. A custom must be proved as a fact, according to the rules of evidence.
180
Article 11. Customs which are contrary to law, public order or public policy shall not
be countenanced.180
181
R.A. No. 7160 reads:

Sec. 399. Lupong Tagapamayapa.
xxx
(f) In barangays where majority of the inhabitants are members of indigenous peoples,
local systems of settling disputes of indigenous peoples, local systems of settling
disputes through their councils of datus or elders shall be recognized without prejudice
to the applicable provisions of this Code.
182
Sec. 38, R.A. 8371.
183
Secs. 44 (a), (b), (c),(d), (f), (g), (h), (I), (j), (k), (l), (m), (n), (p), (q), R.A. 8371.
184
Sec. 44 (o), R.A. 8371.
185
Secs. 44 (e), 51-54, 62, R.A. 8371.
186
1 Am Jur 2d, Administrative Law, 55.
187
Sec. 62, R.A. 8371.
Sec. 17. The President shall have control of all the executive departments, bureaus, and
offices. He shall ensure that the laws be faithfully executed.
188
189
Sec. 44 (f), R.A. 8371.
190
Sec. 44 (g), R.A, 8371.
191
Sec. 44 (j), R.A. 8371.
192
Sec. 44 (p), R.A. 8371.
193
Sec. 40, R.A. 8371.
194
Sec. 42, R.A. 8371.
195
Supra note 75.
196
R.A. 7076.
197
R.A. 7942.
198
SEPARATE OPINION
MENDOZA, J.:
This suit was instituted to determine the constitutionality of certain provisions of R.A. No. 8371,
otherwise known as the Indigenous Peoples Rights Act. Petitioners do not complain of any injury as
a result of the application of the statute to them. They assert a right to seek an adjudication of
constitutional questions as citizens and taxpayers, upon the plea that the questions raised are of
"transcendental importance."
The judicial power vested in this Court by Art. VIII, 1 extends only to cases and controversies for
the determination of such proceedings as are established by law for the protection or enforcement of
rights, or the prevention, redress or punishment of wrongs. 1 In this case, the purpose of the suit is
not to enforce a property right of petitioners against the government and other respondents or to
demand compensation for injuries suffered by them as a result of the enforcement of the law, but
only to settle what they believe to be the doubtful character of the law in question. Any judgment
that we render in this case will thus not conclude or bind real parties in the future, when actual
litigation will bring to the Court the question of the constitutionality of such legislation. Such
judgment cannot be executed as it amounts to no more than an expression of opinion upon the
validity of the provisions of the law in question.2
I do not conceive it to be the function of this Court under Art. VIII, 1 of the Constitution to
determine in the abstract whether or not there has been a grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of the legislative and executive departments in enacting the
IPRA. Our jurisdiction is confined to cases or controversies. No one reading Art. VIII, 5 can fail to
note that, in enumerating the matters placed in the keeping of this Court, it uniformly begins with
the phrase "all cases. . . ."
The statement that the judicial power includes the duty to determine whether there has been a grave
abuse of discretion was inserted in Art. VIII, 1 not really to give the judiciary a roving commission
to right any wrong it perceives but to preclude courts from invoking the political question doctrine
in order to evade the decision of certain cases even where violations of civil liberties are alleged.
The statement is based on the ruling of the Court in Lansang v. Garcia,3 in which this Court,
adopting the submission of the Solicitor General, formulated the following test of its jurisdiction in
such cases:
[J]udicial inquiry into the basis of the questioned proclamation can go no further than to satisfy the
Court not that the Presidents decision is correct and that public safety was endangered by the
rebellion and justified the suspension of the writ, but that in suspending the writ, the President did
not act arbitrarily.
That is why Art. VII, 18 now confers on any citizen standing to question the proclamation of
martial law or the suspension of the privilege of the writ of habeas corpus. It is noteworthy that
Chief Justice Roberto Concepcion, who chaired the Committee on the Judiciary of the
Constitutional Commission, was the author of the opinions of the Court in Lopez v.
Roxas and Lansang v. Garcia.
Indeed, the judicial power cannot be extended to matters which do not involve actual cases or
controversies without upsetting the balance of power among the three branches of the government
and erecting, as it were, the judiciary, particularly the Supreme Court, as a third branch of Congress,
with power not only to invalidate statutes but even to rewrite them. Yet that is exactly what we
would be permitting in this case were we to assume jurisdiction and decide wholesale the
constitutional validity of the IPRA contrary to the established rule that a party can question the
validity of a statute only if, as applied to him, it is unconstitutional. Here the IPRA is sought to be
declared void on its face.
The only instance where a facial challenge to a statute is allowed is when it operates in the area of
freedom of expression. In such instance, the overbreadth doctrine permits a party to challenge the
validity of a statute even though as applied to him it is not unconstitutional but it might be if applied
to others not before the Court whose activities are constitutionally protected. Invalidation of the
statute "on its face" rather than "as applied" is permitted in the interest of preventing a "chilling"
effect on freedom of expression. But in other cases, even if it is found that a provision of a statute is
unconstitutional, courts will decree only partial invalidity unless the invalid portion is so far
inseparable from the rest of the statute that a declaration of partial invalidity is not possible.
For the Court to exercise its power of review when there is no case or controversy is not only to act
without jurisdiction but also to run the risk that, in adjudicating abstract or hypothetical questions,
its decision will be based on speculation rather than experience. Deprived of the opportunity to
observe the impact of the law, the Court is likely to equate questions of constitutionality with
questions of wisdom and is thus likely to intrude into the domain of legislation. Constitutional
adjudication, it cannot be too often repeated, cannot take place in a vacuum.
Some of the brethren contend that not deciding the constitutional issues raised by petitioners will be
a "galling cop out"4 or an "advocacy of timidity, let alone isolationism." 5 To decline the exercise of
jurisdiction in this case is no more a "cop out" or a sign of "timidity" than it was for Chief Justice
Marshall in Marbury v. Madison6 to hold that petitioner had the right to the issuance of his
commission as justice of the peace of the District of Columbia only to declare in the end that after
all mandamus did not lie, because 13 of the Judiciary Act of 1789, which conferred original
jurisdiction on the United States Supreme Court to issue the writ of mandamus, was unconstitutional
as the courts jurisdiction is mainly appellate.
Today Marbury v. Madison is remembered for the institution of the power of judicial review, and so
that there can be no doubt of this power of our Court, we in this country have enshrined its principle
in Art. VIII, 1. Now, the exercise of judicial review can result either in the invalidation of an act of
Congress or in upholding it. Hence, the checking and legitimating functions of judicial review so
well mentioned in the decisions7 of this Court.
To decline, therefore, the exercise of jurisdiction where there is no genuine controversy is not to
show timidity but respect for the judgment of a coequal department of government whose acts,
unless shown to be clearly repugnant to the fundamental law, are presumed to be valid. The polestar
of constitutional adjudication was set forth by Justice Laurel in the Angara case when he said that
"this power of judicial review is limited to actual cases and controversies to be exercised after full
opportunity of argument by the parties, and limited further to the constitutional question raised or
the very lis mota, presented."8 For the exercise of this power is legitimate only in the last resort, and
as a necessity in the determination of real, earnest, and vital controversy between individuals. 9Until,
therefore, an actual case is brought to test the constitutionality of the IPRA, the presumption of
constitutionality, which inheres in every statute, must be accorded to it.
Justice Kapunan, on the other hand, cites the statement in Severino v. Governor General,10 reiterated
in Tanada v. Tuvera,11 that "when the question is one of public right and the object of mandamus to
procure the enforcement of a public duty, the people are regarded as the real party in interest, and
the relator at whose instigation the proceedings are instituted need not show that he has any legal or
special interest in the result, it being sufficient that he is a citizen and as such is interested in the
execution of the laws." On the basis of this statement, he argues that petitioners have standing to
bring these proceedings.12
In Severino v. Governor General,13 the question was whether mandamus lay to compel the Governor
General to call a special election on the ground that it was his duty to do so. The ruling was that he
did not have such a duty. On the other hand, although mandamus was issued in Tanada v. Tuvera, it
was clear that petitioners had standing to bring the suit, because the public has a right to know and
the failure of respondents to publish all decrees and other presidential issuances in the Official
Gazette placed petitioners in danger of violating those decrees and issuances. But, in this case, what
public right is there for petitioners to enforce when the IPRA does not apply to them except in
general and in common with other citizens.
For the foregoing reasons I vote to dismiss the petition in this case.
Footnotes
1
Lopez v. Roxas, 17 SCRA 756, 761 (1966).
Muskrat v. United States, 279 U.S. 346, 55 L.Ed. 246 (1911).
42 SCRA 448, 481 (1971) (emphasis on the original).
Panganiban, J., Separate Opinion, p. 2.
Vitug, J., Separate Opinion, p. 1.
1 Cranch 137, 2 L.Ed. 60 (1803).
Occea v. Commission on Elections; Gonzales v. The National Treasurer, 104 SCRA 1

(1981); Mitra v. Commission on Elections, 104 SCRA 59 (1981).
7
Angara v. Electoral Commission, 63 Phil. 139, 158 (1936).
Philippine Association of Colleges and Universities v. Secretary of Education, 97 Phil. 806

(1955).
9
10
16 Phil. 366 (1913).
11
136 SCRA 27 (1985).
12
Kapunan, J., Separate Opinion, pp. 21-23.
13
Supra note 10.
SEPARATE
(Concurring and Dissenting)
OPINION
PANGANIBAN, J.:
I concur with the draft ponencia of Mr. Justice Santiago M. Kapunan in its well-crafted handling of
the procedural or preliminary issues. In particular, I agree that petitioners have shown an actual case
or controversy involving at least two constitutional questions of transcendental importance, 1 which
deserve judicious disposition on the merits directly by the highest court of the land. 2 Further, I am
satisfied that the various aspects of this controversy have been fully presented and impressively
argued by the parties. Moreover, prohibition and mandamus are proper legal remedies 3 to address
the problems raised by petitioners. In any event, this Court has given due course to the Petition,
heard oral arguments and required the submission of memoranda. Indeed, it would then be a galling
copout for us to dismiss it on mere technical or procedural grounds.
Protection of Indigenous Peoples Rights Must Be Within the Constitutional Framework
With due respect, however, I dissent from the ponencias resolution of the two main substantive
issues, which constitute the core of this case. Specifically, I submit that Republic Act (RA) No.
8371, otherwise known as the Indigenous Peoples Rights Act (IPRA) of 1997, violates and
contravenes the Constitution of the Philippines insofar as 1. It recognizes or, worse, grants rights of ownership over "lands of the public domain,
waters, x x x and other natural resources" which, under Section 2, Article XII of the
Constitution, "are owned by the State" and "shall not be alienated." I respectfully reject the
contention that "ancestral lands and ancestral domains are not public lands and have never
been owned by the State." Such sweeping statement places substantial portions of Philippine
territory outside the scope of the Philippine Constitution and beyond the collective reach of
the Filipino people. As will be discussed later, these real properties constitute a third of the
entire Philippine territory; and the resources, 80 percent of the nation's natural wealth.
2. It defeats, dilutes or lessens the authority of the State to oversee the "exploration,
development, and utilization of natural resources," which the Constitution expressly requires
to "be under the full control and supervision of the State."
True, our fundamental law mandates the protection of the indigenous cultural communities right to
their ancestral lands, but such mandate is "subject to the provisions of this Constitution." 4 I concede
that indigenous cultural communities and indigenous peoples (ICCs/IPs) may be accorded
preferential rights to the beneficial use of public domains, as well as priority in the exploration,
development and utilization of natural resources. Such privileges, however, must be subject to the
fundamental law.
Consistent with the social justice principle of giving more in law to those who have less in life,
Congress in its wisdom may grant preferences and prerogatives to our marginalized brothers and
sisters, subject to the irreducible caveat that the Constitution must be respected. I personally believe
in according every benefit to the poor, the oppressed and the disadvantaged, in order to empower
them to equally enjoy the blessings of nationhood. I cannot, however, agree to legitimize perpetual
inequality of access to the nation's wealth or to stamp the Court's imprimatur on a law that offends
and degrades the repository of the very authority of this Court - the Constitution of the Philippines.
The Constitution Is a Compact
My basic premise is that the Constitution is the fundamental law of the land, to which all other laws
must conform.5It is the people's quintessential act of sovereignty, embodying the principles upon
which the State and the government are founded.6 Having the status of a supreme and allencompassing law, it speaks for all the people all the time, not just for the majority or for the
minority at intermittent times. Every constitution is a compact made by and among the citizens of a
State to govern themselves in a certain manner.7 Truly, the Philippine Constitution is a solemn
covenant made by all the Filipinos to govern themselves. No group, however blessed, and no sector,
however distressed, is exempt from its compass.
RA 8371, which defines the rights of indigenous cultural communities and indigenous peoples,
admittedly professes a laudable intent. It was primarily enacted pursuant to the state policy
enshrined in our Constitution to "recognize and promote the rights of indigenous cultural
communities within the framework of national unity and development." 8 Though laudable and wellmeaning, this statute, however, has provisions that run directly afoul of our fundamental law from
which it claims origin and authority. More specifically, Sections 3(a) and (b), 5, 6, 7(a) and (b), 8
and other related provisions contravene the Regalian Doctrine - the basic foundation of the State's
property regime.
Public Domains and Natural Resources Are Owned by the State and Cannot Be Alienated or Ceded
Jura regalia was introduced into our political system upon the "discovery" and the "conquest" of
our country in the sixteenth century. Under this concept, the entire earthly territory known as the
Philippine Islands was acquired and held by the Crown of Spain. The King, as then head of State,
had the supreme power or exclusive dominion over all our lands, waters, minerals and other natural
resources. By royal decrees, though, private ownership of real property was recognized upon the
showing of (1) a title deed; or (2) ancient possession in the concept of owner, according to which a
title could be obtained by prescription.9 Refusal to abide by the system and its implementing laws
meant the abandonment or waiver of ownership claims.
By virtue of the 1898 Treaty of Paris, the Philippine archipelago was ceded to the United States. The
latter assumed administration of the Philippines and succeeded to the property rights of the Spanish
Crown. But under the Philippine Bill of 1902, the US Government allowed and granted patents to
Filipino and US citizens for the "free and open x x x exploration, occupation and purchase [of
mines] and the land in which they are found." 10 To a certain extent, private individuals were entitled
to own, exploit and dispose of mineral resources and other rights arising from mining patents.
This US policy was, however, rejected by the Philippine Commonwealth in 1935 when it crafted
and ratified our first Constitution. Instead, the said Constitution embodied the Regalian Doctrine,
which more definitively declared as belonging to the State all lands of the public domain, waters,
minerals and other natural resources.11 Although respecting mining patentees under the Philippine
Bill of 1902, it restricted the further exploration, development and utilization of natural resources,
both as to who might be entitled to undertake such activities and for how long. The pertinent
provision reads:
"SECTION 1 [Art. XIII]. All agricultural, timber, and mineral lands of the public domain, waters,
minerals, coal, petroleum, and other mineral oils, all forces of potential energy, and other natural
resources of the Philippines belong to the State, and their disposition, exploitation, development, or
utilization shall be limited to citizens of the Philippines, or to corporations or associations at least
sixty per centum of the capital of which is owned by such citizens, subject to any existing right,
grant, lease, or concession at the time of the inauguration of the Government established under this
Constitution. Natural resources, with the exception of public agricultural land, shall not be alienated,
and license, concession, or lease for the exploitation, development, or utilization of any of the
natural resources shall be granted for a period exceeding twenty-five years, renewable for another
twenty-five years, except as to water rights for irrigation, water supply, fisheries, or industrial uses
other than the development of water power, in which cases beneficial use may be the measure and
the limit of the grant."
The concept was carried over in the 1973 and the 1987 Constitutions. Hence, Sections 8 and 9,
Article XIV of the 1973 Constitution, state:
"SEC. 8. All lands of the public domain, waters, minerals, coal, petroleum and other mineral oils, all
forces of potential energy, fisheries, wildlife, and other natural resources of the Philippines belong
to the State. With the exception of agricultural, industrial or commercial, residential, and
resettlement lands of the public domain, natural resources shall not be alienated and no license,
concession, or lease for the exploration, development, exploitation, utilization of any of the natural
resources shall be granted for a period exceeding twenty-five years, renewable for not more than
twenty-five years, except as to water rights for irrigation, water supply, fisheries, or industrial uses
other than the development of water power, in which cases beneficial use may be the measure and
the limit of the grant.
SEC. 9. The disposition, exploration, development, exploitation, or utilization of any of the natural
resources of the Philippines shall be limited to citizens of the Philippines, or to corporations or
associations at least sixty per centum of the capital of which is owned by such citizens. The National
Assembly, in the national interest, may allow such citizens, corporations, or associations to enter
into service contracts for financial, technical, management, or other forms of assistance with any
foreign person or entity for the exploration, development, exploitation, or utilization of any of the
natural resources. Existing valid and binding service contracts for financial, technical, management,
or other forms of assistance are hereby recognized as such."
Similarly, Section 2, Article XII of the 1987 Constitution, provides:
"SEC. 2. All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils,
all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural
resources are owned by the State. With the exception of agricultural lands, all other natural
resources shall not be alienated. The exploration, development, and utilization of natural resources
shall be under the full control and supervision of the State. The State may directly undertake such
activities, or it may enter into co-production, joint venture, or production-sharing agreements with
Filipino citizen, or corporations or associations at least sixty per centum of whose capital is owned
by such citizens. Such agreements may be for a period not exceeding twenty-five years, renewable
for not more than twenty-five years, and under such terms and conditions as may be provided by
law. In cases of water rights for irrigation, water supply, fisheries, or industrial uses other than the
development of water power, beneficial use may be the measure and limit of the grant.
"The State shall protect the nation's marine wealth in its archipelagic waters, territorial sea, and
"The Congress may, by law, allow small-scale utilization of natural resources by Filipino citizens, as
well as cooperative fish farming, with priority to subsistence fishermen and fish workers in rivers,
lakes, bays and lagoons.
"The President may enter into agreements with foreign-owned corporations involving either
technical or financial assistance for large-scale exploration, development, and utilization of
minerals, petroleum, and other mineral oils according to the general terms and conditions provided
by law, based on real contributions to the economic growth and general welfare of the country. In
such agreements, the State shall promote the development and use of local scientific and technical
resources.
"The President shall notify the Congress of every contract entered into in accordance with this
provision, within thirty days from its execution."
The adoption of the Regalian Doctrine by the Philippine Commonwealth was initially impelled by
the desire to preserve the nation's wealth in the hands of the Filipinos themselves. Nationalism was
fervent at the time, and our constitutional framers decided to embody the doctrine in our
fundamental law. Charging the State with the conservation of the national patrimony was deemed
necessary for Filipino posterity. The arguments in support of the provision are encapsulated by
Aruego as follows: "[T]he natural resources, particularly the mineral resources which constituted a
great source of wealth, belonged not only to the generation then but also to the succeeding
generation and consequently should be conserved for them."12
Thus, after expressly declaring that all lands of the public domain, waters, minerals, all forces of
energy and other natural resources belonged to the Philippine State, the Commonwealth absolutely
prohibited the alienation of these natural resources. Their disposition, exploitation, development and
utilization were further restricted only to Filipino citizens and entities that were 60 percent Filipinoowned. The present Constitution even goes further by declaring that such activities "shall be under
the full control and supervision of the State." Additionally, it enumerates land classifications and
expressly states that only agricultural lands of the public domain shall be alienable. We quote below
the relevant provision:13
"SEC. 3. Lands of the public domain are classified into agricultural, forest or timber, mineral lands,
and national parks. Agricultural lands of the public domain may be further classified by law
according to the uses to which they may be devoted. Alienable lands of the public domain shall be
limited to agricultural lands. Private corporations or associations may not hold such alienable lands
of the public domain except by lease, for a period not exceeding twenty-five years, renewable for
not more than twenty-five years, and not to exceed one thousand hectares in area. x x x."
Mr. Justice Kapunan upholds private respondents and intervenors in their claim that all ancestral
domains and lands are outside the coverage of public domain; and that these properties - including
forests, bodies of water, minerals and parks found therein - are private and have never been part of
the public domain, because they have belonged to the indigenous peoples ancestors since time
immemorial.
I submit, however, that all Filipinos, whether indigenous or not, are subject to the Constitution.
Indeed, no one is exempt from its all-encompassing provisions. Unlike the 1935 Charter, which was
subject to "any existing right, grant, lease or concession," the 1973 and the 1987 Constitutions spoke
in absolute terms. Because of the States implementation of policies considered to be for the
common good, all those concerned have to give up, under certain conditions, even vested rights of
ownership.
In Republic v. Court of Appeals,14 this Court said that once minerals are found even in private land,
the State may intervene to enable it to extract the minerals in the exercise of its sovereign
prerogative. The land is converted into mineral land and may not be used by any private person,
including the registered owner, for any other purpose that would impede the mining operations.
Such owner would be entitled to just compensation for the loss sustained.
In Atok Big-Wedge Mining Company v. IAC,15 the Court clarified that while mining claim holders
and patentees have the exclusive right to the possession and enjoyment of the located claim, their
rights are not absolute or strictly one of ownership. Thus, failure to comply with the requirements of
pertinent mining laws was deemed an abandonment or a waiver of the claim.
Verily, as petitioners undauntedly point out, four hundred years of Philippine political history cannot
be set aside or ignored by IPRA, however well-intentioned it may be. The perceived lack of
understanding of the cultural minorities cannot be remedied by conceding the nations resources to
their exclusive advantage. They cannot be more privileged simply because they have chosen to
ignore state laws. For having chosen not to be enfolded by statutes on perfecting land titles,
ICCs/IPs cannot now maintain their ownership of lands and domains by insisting on their concept of
"native title" thereto. It would be plain injustice to the majority of Filipinos who have abided by the
law and, consequently, deserve equal opportunity to enjoy the countrys resources.
Respondent NCIP claims that IPRA does not violate the Constitution, because it does not grant
ownership of public domains and natural resources to ICCs/IPs. "Rather, it recognizes and mandates
respect for the rights of indigenous peoples over their ancestral lands and domains that had never
been lands of the public domain."16 I say, however, that such claim finds no legal support. Nowhere
in the Constitution is there a provision that exempts such lands and domains from its coverage.
Quite the contrary, it declares that all lands of the public domain and natural resources "are owned
by the State"; and "with the exception of agricultural lands, all other natural resources shall not be
alienated."
As early as Oh Cho v. Director of Lands, 17 the Court declared as belonging to the public domain all
lands not acquired from the government, either by purchase or by grant under laws, orders or
decrees promulgated by the Spanish government; or by possessory information under Act 496
(Mortgage Law).
On the other hand, Intervenors Flavier et al. 18 differentiate the concept of ownership of ICCs/IPs
from that which is defined in Articles 427 and 428 of the Civil Code. They maintain that "[t]here are
variations among ethnolinguistic groups in the Cordillera, but a fair synthesis of these refers to x x
x the tribal right to use the land or to territorial control x x x, a collective right to freely use the
particular territory x x x [in] the concept of trusteeship.'"
In other words, the "owner" is not an individual. Rather, it is a tribal community that preserves the
property for the common but nonetheless exclusive and perpetual benefit of its members, without
the attributes of alienation or disposition. This concept, however, still perpetually withdraws such
property from the control of the State and from its enjoyment by other citizens of the Republic. The
perpetual and exclusive character of private respondents claims simply makes them repugnant to
basic fairness and equality.
Private respondents and intervenors trace their "ownership" of ancestral domains and lands to the
pre-Spanish conquest. I should say that, at the time, their claims to such lands and domains was
limited to the surfaces thereof since their ancestors were agriculture-based. This must be the
continuing scope of the indigenous groups ownership claims: limited to land, excluding the natural
resources found within.
In any event, if all that the ICCs/IPs demand is preferential use - not ownership - of ancestral
domains, then I have no disagreement. Indeed, consistent with the Constitution is IPRAs Section
5719- without the too-broad definitions under Section 3 (a) and (b) - insofar as it grants them priority
rights in harvesting, extracting, developing or exploiting natural resources within ancestral domains.
The concerted effort to malign the Regalian Doctrine as a vestige of the colonial past must fail. Our
Constitution vests the ownership of natural resources, not in colonial masters, but in all the Filipino
people. As the protector of the Constitution, this Court has the sworn duty to uphold the tenets of
that Constitution - not to dilute, circumvent or create exceptions to them.
Cario v. Insular Government Was Modified by the Constitution
In this connection, I submit that Cario v. Insular Government20 has been modified or superseded by
our 1935, 1973 and 1987 Constitutions. Its ratio should be understood as referring only to a means
by which public agricultural land may be acquired by citizens. I must also stress that the claim of
Petitioner Cario refers to land ownership only, not to the natural resources underneath or to the
aerial and cosmic space above.
Significantly, in Director of Land Management v. Court of Appeals,21 a Decision handed down after
our three Constitutions had taken effect, the Court rejected a cultural minority member's registration
of land under CA 141, Section 48 (c). 22 The reason was that the property fell within the Central
Cordillera Forest Reserve. This Court quoted with favor the solicitor generals following statements:
"3. The construction given by respondent Court of Appeals to the particular provision of law
involved, as to include even forest reserves as susceptible to private appropriation, is to
unconstitutionally apply such provision. For, both the 1973 and present Constitutions do not include
timber or forest lands as alienable. Thus, Section 8, Article XIV of 1973 Constitution states that
with the exception of agricultural, industrial or commercial, residential and resettlement lands of
the public domain, natural resources shall not be alienated. The new Constitution, in its Article XII,
Section 2, also expressly states that with the exception of agricultural lands, all other natural
resources shall not be alienated."
Just recently, in Gordula v. Court of Appeals,23 the Court also stated that "forest land is incapable of
registration, and its inclusion in a title nullifies that title. To be sure, the defense of indefeasiblity of
a certificate of title issued pursuant to a free patent does not lie against the state in an action for
reversion of the land covered thereby when such land is a part of a public forest or of a forest
reservation, the patent covering forest land being void ab initio."
RA 8371 Violates the Inalienability of Natural Resources and of Public Domains
The ponencia theorizes that RA 8371 does not grant to ICCs/IPs ownership of the natural resources
found within ancestral domains. However, a simple reading of the very wordings of the law belies
this statement.
Section 3 (a)24 defines and delineates ancestral domains as "all areas generally belonging to
ICCs/IPs comprising lands, inland waters, coastal areas, and natural resources therein, held under a
claim of ownership, occupied or possessed by ICCs/IPs, by themselves or through their ancestors,
communally or individually since time immemorial, continuously to the present except when
interrupted by war, force majeure or displacement x x x. It shall include ancestral lands, forests,
pasture, residential, agricultural, and other lands individually owned whether alienable and
disposable or otherwise, hunting grounds x x x bodies of water, mineral and other natural
resourcesx x x." (Emphasis ours.)
Clearly, under the above-quoted provision of IPRA, ancestral domains of ICCs/IPs encompass the
natural resources found therein. And Section 7 guarantees recognition and protection of
their rights of ownership and possession over such domains.
The indigenous concept of ownership, as defined under Section 5 of the law, "holds that ancestral
domains are the ICCs/IPs private but community property which belongs to all generations and
therefore cannot be sold, disposed or destroyed." Simply put, the law declares that ancestral
domains, including the natural resources found therein, are owned by ICCs/IPs and cannot be sold,
disposed or destroyed. Not only does it vest ownership, as understood under the Civil Code; it adds
perpetual exclusivity. This means that while ICCs/IPs could own vast ancestral domains, the
majority of Filipinos who are not indigenous can never own any part thereof.
On the other hand, Section 3 (b) 25 of IPRA defines ancestral lands as referring to "lands occupied,
possessed and utilized by individuals, families and clans of the ICCs/IPs since time immemorial x x
x, under claims of individual or traditional group ownership, x x x including, but not limited to,
residential lots, rice terraces or paddies, private forests, swidden farms and tree lots." Section 8
recognizes and protects "the right of ownership and possession of ICCs/IPs to their ancestral lands."
Such ownership need not be by virtue of a certificate of title, but simply by possession since time
immemorial.
I believe these statutory provisions directly contravene Section 2, Article XII of the Constitution,
more specifically the declaration that the State owns all lands of the public domain, minerals and
natural resources none of which, except agricultural lands, can be alienated. In several cases, this
Court has consistently held that non-agricultural land must first be reclassified and converted into
alienable or disposable land for agricultural purposes by a positive act of the government. 26 Mere
possession or utilization thereof, however long, does not automatically convert them into private
properties.27 The presumption is that "all lands not appearing to be clearly within private ownership
are presumed to belong to the State. Hence, x x x all applicants in land registration proceedings have
the burden of overcoming the presumption that the land thus sought to be registered forms part of
the public domain. Unless the applicant succeeds in showing by clear and convincing evidence that
the property involved was acquired by him or his ancestors either by composition title from the
Spanish Government or by possessory information title, or any other means for the proper
acquisition of public lands, the property must be held to be part of the public domain. The applicant
must present competent and persuasive proof to substantiate his claim; he may not rely on general
statements, or mere conclusions of law other than factual evidence of possession and title." 28
Respondents insist, and the ponencia agrees, that paragraphs (a) and (b) of Sections 3 are merely
definitions and should not be construed independently of the other provisions of the law. But,
precisely, a definition is "a statement of the meaning of a word or word group." 29 It determines or
settles the nature of the thing or person defined. 30 Thus, after defining a term as encompassing
several items, one cannot thereafter say that the same term should be interpreted as excluding one or
more of the enumerated items in its definition. For that would be misleading the people who would
be bound by the law. In other words, since RA 8371 defines ancestral domains as including the
natural resources found therein and further states that ICCs/IPs own these ancestral domains, then it
means that ICCs/IPs can own natural resources.
In fact, Intervenors Flavier et al. submit that everything above and below these ancestral domains,
with no specific limits, likewise belongs to ICCs/IPs. I say that this theory directly contravenes the
Constitution. Such outlandish contention further disregards international law which, by
constitutional fiat, has been adopted as part of the law of the land. 31
No Land Area Limits Are Specified by RA 8371
Under Section 3, Article XII of the Constitution, Filipino citizens may acquire no more than 12
hectares of alienable public land, whether by purchase, homestead or grant. More than that, but not
exceeding 500 hectares, they may hold by lease only.
RA 8371, however, speaks of no area or term limits to ancestral lands and domains. In fact, by their
mere definitions, they could cover vast tracts of the nation's territory. The properties under the
assailed law cover everything held, occupied or possessed "by themselves or through their
ancestors, communally or individually since time immemorial." It also includes all "lands which
may no longer be exclusively occupied by [them] but from which they traditionally had access to
for their subsistence and traditional activities, particularly the home ranges of ICCs/IPs who are still
nomadic and/or shifting cultivators."
Nomadic groups have no fixed area within which they hunt or forage for food. As soon as they have
used up the resources of a certain area, they move to another place or go back to one they used to
occupy. From year to year, a growing tribe could occupy and use enormous areas, to which they
could claim to have had "traditional access." If nomadic ICCs/IPs succeed in acquiring title to their
enlarging ancestral domain or land, several thousands of hectares of land may yet be additionally
delineated as their private property.
Similarly, the Bangsa Moro people's claim to their ancestral land is not based on compounded or
consolidated title, but "on a collective stake to the right to claim what their forefathers secured for
them when they first set foot on our country." 32 They trace their right to occupy what they deem to
be their ancestral land way back to their ancient sultans and datus, who had settled in many islands
that have become part of Mindanao. This long history of occupation is the basis of their claim to
their ancestral lands.33
Already, as of June 1998, over 2.5 million hectares have been claimed by various ICCs/IPs as
ancestral domains; and over 10 thousand hectares, as ancestral lands. 34 Based on ethnographic
surveys, the solicitor general estimates that ancestral domains cover 80 percent of our mineral
resources and between 8 and 10 million of the 30 million hectares of land in the country. 35 This
means that four fifths of its natural resources and one third of the country's land will be
concentrated among 12 million Filipinos constituting 110 ICCs, 36 while over 60 million other
Filipinos constituting the overwhelming majority will have to share the remaining. These figures
indicate a violation of the constitutional principle of a "more equitable distribution of opportunities,
income, and wealth" among Filipinos.
RA 8371 Abdicates the State Duty to Take Full Control and Supervision of Natural Resources
Section 2, Article XII of the Constitution, further provides that "[t]he exploration, development, and
utilization of natural resources shall be under the full control and supervision of the State." The
State may (1) directly undertake such activities; or (2) enter into co-production, joint venture or
production-sharing agreements with Filipino citizens or entities, 60 percent of whose capital is
owned by Filipinos.37 Such agreements, however, shall not exceed 25 years, renewable for the same
period and under terms and conditions as may be provided by law.
But again, RA 8371 relinquishes this constitutional power of full control in favor of ICCs/IPs,
insofar as natural resources found within their territories are concerned. Pursuant to their rights of
ownership and possession, they may develop and manage the natural resources, benefit from and
share in the profits from the allocation and the utilization thereof. 38 And they may exercise such
right without any time limit, unlike non-ICCs/IPs who may do so only for a period not exceeding 25
years, renewable for a like period.39 Consistent with the Constitution, the rights of ICCs/IPs to
exploit, develop and utilize natural resources must also be limited to such period.
In addition, ICCs/IPs are given the right to negotiate directly the terms and conditions for the
exploration of natural resources,40 a right vested by the Constitution only in the State. Congress,
through IPRA, has in effect abdicated in favor of a minority group the State's power of ownership
and full control over a substantial part of the national patrimony, in contravention of our most
fundamental law.
I make clear, however, that to the extent that ICCs/IPs may undertake small-scale utilization of
natural resources and cooperative fish farming, I absolutely have no objection. These undertakings
are certainly allowed under the third paragraph of Section 2, Article XII of the Constitution.
Having already disposed of the two major constitutional dilemmas wrought by RA 8371 (1)
ownership of ancestral lands and domains and the natural resources therein; and (2) the ICCs/IPs'
control of the exploration, development and utilization of such resources I believe I should no
longer tackle the following collateral issues petitioners have brought up:
1. Whether the inclusion of private lands within the coverage of ancestral domains amounts
to undue deprivation of private property
2. Whether ICCs/IPs may regulate the entry/exit of migrants
3. Whether ancestral domains are exempt from real property taxes, special levies and other
forms of exaction
4. Whether customary laws and traditions of ICCs/IPs should first be applied in the
settlements of disputes over their rights and claims
5. Whether the composition and the jurisdiction of the National Commission of Indigenous
Peoples (NCIP) violate the due process and equal protection clauses
6. Whether members of the ICCs/IPs may be recruited into the armed forces against their will
I believe that the first three of the above collateral issues have been rendered academic or, at least,
no longer of "transcendental importance," in view of my contention that the two major IPRA
propositions are based on unconstitutional premises. On the other hand, I think that in the case of
the last three, it is best to await specific cases filed by those whose rights may have been injured by
specific provisions of RA 8371.
Epilogue
Section 5, Article XII of the Constitution, provides:
"SEC. 5. The State, subject to the provisions of this Constitution and national development policies
and programs, shall protect the rights of indigenous cultural communities to their ancestral lands to
ensure their economic, social, and cultural well being.
"The Congress may provide for the applicability of customary laws governing property rights and
relations in determining the ownership and extent of ancestral domain."
Clearly, there are two parameters that must be observed in the protection of the rights of ICCs/IPs:
(1) the provisions of the 1987 Constitution and (2) national development policies and programs.
Indigenous peoples may have long been marginalized in Philippine politics and society. This does
not, however, give Congress any license to accord them rights that the Constitution withholds from
the rest of the Filipino people. I would concede giving them priority in the use, the enjoyment and
the preservation of their ancestral lands and domains. 41 But to grant perpetual ownership and control
of the nation's substantial wealth to them, to the exclusion of other Filipino citizens who have
chosen to live and abide by our previous and present Constitutions, would be not only unjust but
also subversive of the rule of law.
In giving ICCs/IPs rights in derogation of our fundamental law, Congress is effectively mandating
"reverse discrimination." In seeking to improve their lot, it would be doing so at the expense of the
majority of the Filipino people. Such short-sighted and misplaced generosity will spread the roots of
discontent and, in the long term, fan the fires of turmoil to a conflagration of national proportions.
Peace cannot be attained by brazenly and permanently depriving the many in order to coddle the
few, however disadvantaged they may have been. Neither can a just society be approximated by
maiming the healthy to place them at par with the injured. Nor can the nation survive by enclaving
its wealth for the exclusive benefit of favored minorities.
Rather, the law must help the powerless by enabling them to take advantage of opportunities and
privileges that are open to all and by preventing the powerful from exploiting and oppressing them.
This is the essence of social justice empowering and enabling the poor to be able to compete with
the rich and, thus, equally enjoy the blessings of prosperity, freedom and dignity.
WHEREFORE,
I
vote
to
partially GRANT the
Petition
and
to DECLARE as UNCONSTITUTIONAL Sections 3(a) and (b), 5, 6, 7(a) and (b), 8 and related
provisions of RA 8371.
Footnotes
Kilosbayan v. Morato, 250 SCRA 130, 140, November 16, 1995; Association of Small
Landowners v. Secretary of Agrarian Reform, 175 SCRA 343, 365, July 14, 1989; Antonio v.
Dinglasan, 84 Phil 368 (1949).
1
Taada v. Angara, 272 SCRA 18, 46, May 2, 1997; Santiago v. Comelec, 270 SCRA 106,
123-24, March 19, 1997; Basco v. PAGCOR, 197 SCRA 52, 60, May 14, 1991.
2
Tanada v. Angara, ibid.
5, Art. XII, 1987 Constitution.
16 CJS 3.
16 Am Jur 2d 2.
Ibid.
22, Art. II of the Constitution.
Abaoag v. Director of Lands, 45 Phil 518 (1923), cited in petitioners' Memorandum.
Soledad M. Cagampang-de Castro, "The Economic Policies on Natural Resources Under

the 1987 Constitution Revisited," Journal of the Integrated Bar of the Philippines, Vol. XXV,
Nos. 3 & 4 (1999), p. 51.
10
In a republican system of government, the concept of jura regalia is stripped of royal

overtones; ownership is vested in the State, instead. (Joaquin G. Bernas, SJ, The Constitution
of the Republic of the Philippines: A Commentary, 1996 ed., p. 1009-1010.)
11
II Aruego, The Framing of the Philippine Constitution 603, quoted in Bernas, supra, p.
1010.
12
13
3, Art. XII, 1987 Constitution.
14
160 SCRA 228, 239, April 15, 1988.
15
261 SCRA 528, September 9, 1996.
16
NCIPs Memorandum, p. 24.
17
75 Phil 890, 892, August 31, 1946.
18
Intervenors Memorandum, pp. 33 et seq.
"SEC. 57. Natural Resources within Ancestral Domains. The ICCs/IPs shall have priority
rights in the harvesting, extraction, development or exploitation of any natural resources
within the ancestral domains. x x x."
19
20
41 Phil 935, February 23, 1909.
21
172 SCRA 455, 463, April 18, 1989, per Gutierrez Jr., J.
"(c) Members of the national cultural minorities who by themselves or through their
predecessors-in-interest have been in open, continuous, exclusive and notorious possession
and occupation of lands of the public domain suitable to agriculture, whether disposable or
not, under a bona fide claim of ownership for at least 30 years shall be entitled to the rights
granted in subsection (b) hereof. (As amended by R.A. No. 3872, section 1, approved June
18, 1964)."
22
23
284 SCRA 617, 633, January 22, 1998, per Puno, J.
"a) Ancestral Domains - Subject to Section 56 hereof, refers to all areas generally
belonging to ICCs/IPs comprising lands, inland waters, coastal areas, and natural resources
therein, held under a claim of ownership, occupied or possessed by ICCs/IPs, by themselves
or through their ancestors, communally or individually since time immemorial, continuously
to the present except when interrupted by war, forcemajeure or displacement by force, deceit,
stealth or as a consequence of government projects or any other voluntary dealings entered
24
into by government and private individuals/corporations, and which are necessary to ensure
their economic, social and cultural welfare. It shall include ancestral lands individually
owned whether alienable and disposable or otherwise, hunting grounds, burial grounds,
worship areas, bodies of water, mineral and other natural resources, and lands which may no
longer be exclusively occupied by ICCs/IPs but from which they traditionally had access to
for their subsistence and traditional activities, particularly the home ranges of ICCs/IPs who
are still nomadic and/or shifting cultivators."
"b) Ancestral Lands - Subject to Section 56 hereof, refers to lands occupied, possessed and
utilized by individuals, families and clans who are members of the ICCs/IPs since time
immemorial, by themselves or through their predecessors-in-interest, under claims of
individual or traditional group ownership, continuously, to the present except when
interrupted by war, force majeure or displacement by force, deceit, stealth, or as a
consequence of government projects and other voluntary dealings entered into by
government and private individuals/corporations, including, but not limited to, residential
lots, rice terraces or paddies, private forests, swidden farms and tree lots."
25
Director of Lands and Director of Forest Development v. Intermediate Appellate

Court, March 2, 1993;Director of Lands v. Aquino, 192 SCRA 296, December 17,
1990; Sunbeam Convenience Foods, Inc. v. Court of Appeals, January 29, 1990.
26
Ibid., Margolles v. Court of Appeals, February 14, 1994; Gordula v. Court of Appeals,
supra.
27
Republic v. Sayo, October 31, 1990, per Narvasa, J. (later CJ). See also Republic v. Court
of Appeals,supra.
28
29
Websters Third New International Dictionary; Petitioners Memorandum, p. 41.
30
Ibid.
31
2, Art. II of the Constitution.
Cecilio R. Laurente, "The King's Hand: The Regalian Doctrine as a Contributing Factor in
the Mindanao Conflict," Human Rights Agenda, Vol. 5, Issue No. 7, July & August 2000, pp.
6-7.
32
33
Ibid.
34
Solicitor General's Memorandum, p. 3; rollo, p. 651.
35
Ibid., pp. 4-5.
Ibid. See also Datu Vic Saway, "Indigenous Peoples and the Uplands: A
Situationer," Proceedings of the 6th Upland NGO Consultative Conference, 23-27 August
1998, p. 30.
36
Or (3) in case of large-scale exploration, development and utilization of minerals, enter

through the President into "agreements with foreign-owned corporations involving either
technical or financial assistance." (Miners Association of the Philippines v. Factoran Jr., 240
SCRA 100, January 16, 1995.)
37
38
7(b), RA 7381.
39
57, ibid.
40
7(b), ibid.
41
As stated earlier, Sec. 57 of IPRA, insofar as it grants them such priority, is constitutional.
Republic
SUPREME
Manila
of
the
Philippines
COURT
EN BANC
G.R. No. L-2506
April 16, 1906
F.
STEWART
vs.
THE INSULAR GOVERNMENT, defendant-appellant.
Office
of
the
Pillsbury and Sutro, for appellee.
Solicitor-General,
JONES, plaintiff-appellee,
for
appellant.
WILLARD, J.:
On the 16th day of January, 1904 F. Stewart Jones presented a petition to the Court of Land
Registration asking that he be inscribed as the owner of a certain tract of land situatd in the
Province of Benguet, and within the reservation defined in Act No. 636. The Solicitor-General
appeared in the court below and opposed the inscription upon the ground that the property was
public land. At the trial he objected to any consideration of the case on the ground that the court
had no jurisdiction to register land situated in that reservation. The objections were overruled
and judgment entered in favor of the petitioner, from which judgment the Government appealed
to this court.
The act creating the Court of Land Registration (No. 496) gave it jurisdiction throughout the
Archipelago. By Act No. 1224, which was approved August 31, 1904, and which applied to
pending cases, the court was deprived of jurisdiction over lands situated in the Province of
Benguet. That act, however, contained a proviso by which the court was given jurisdiction over
applications for registration of title to land in all cases coming within the provisions of Act No.
648. Act No. 648 provides in its first section that
The Civil Governor is hereby authorized and empowered by executive order to reserve
from settlement or public sale and for specific public uses any of the public domain in the
Philippine Islands the use of which is not otherwise directed by law.
Section 2 provides: "Whenever the Civil Governor, in writing, shall certify that all public lands
within limits by him described in the Philippine Islands are reserved for civil public uses, either
of the Insular Government, or of any provincial or municipal government, and shall give notice
thereof to the judge of the Court of Land Registration, it shall be the duty of the judge of said
court" to proceed in accordance with the provisions of Act No. 627. Act No. 627, which relates
to military reservations, provides that when notice is given to the Court of Land Registration of
the fact that any land has been so reserved, it shall be the duty of the court to issue notice that
claims for all private lands within the limits of the reservation must be presented for registration
under the Land Registration Act within six months from the date of issuing such notice, and that
all lands not so presented within said time would be conclusively adjudged to be public lands,
and all claims on the part of private individuals for such lands, not so presented, would be
forever barred.
On the 26th day of August, 1903, the following letter was directed by Governor Taft to the judge
of the Court of Land Registration:
SIR: You are hereby notified, in accordance with the provisions of Act No. 648, entitled
"An act authorizing the Civil Governor to reserve for civil public purposes, and from sale
or settlement, any part of the public domain not appropriated by law for special public
purposes, until otherwise directed by law, and extending the provisions of Act Numbered
Six hundred and twenty-seven so that public lands desired to be reserved by the Insular
Government for public uses, or private lands desired to be purchased by the Insular
Government for such uses, may be brought under the operation of the Land Registration
Act;" that the Philippine Commission has reserved for civil public uses of the
Government of the Philippine Islands the lands described in Act No. 636, entitled "An act
creating a Government reservation at Baguio, in the Province of Benguet," enacted
February 11, 1903.
It is therefore requested that the land mentioned be forthwith brought under the operation
of the Land Registration Act and become registered land in the meaning thereof, and that
you proceed in accordance with the provisions of Act No. 648.
Very
(Signed)WM.
"Civil Governor."
H.
respectfully,
TAFT,
The court of Land Registration, acting upon this notice from the Governor, issued the notice
required by Act No. 627, and in pursuance of that notice Jones, the appellee, within the six
months referred to in the notice, presented his petition asking that the land be registered in his
name.
The first claim of the Government is that the provisions of Act No. 648 were not complied with
in the respect that this letter of the Governor did not amount to a certificate that the lands had
been reserved. The Solicitor-General says in his brief:
To bring these lands within the operation of section 2 of Act No. 648 it was necessary for
the Civil Governor first to certify that these lands were reserved for public uses, and
second to give notice thereof to the Court of Land Registration.
We do not think that this contention can be sustained. Act No. 648 conferred power upon the
Governor to reserve lands for public purposes, but it did not make that power exclusive. The
Commission did not thereby deprive itself of the power to itself make reservations in the future,
if it saw fit; neither did it intend to annul any reservations which it had formerly made. The
contention of the Government is true when applied to a case where the land has not been
reserved by the Commission. In such a case it would be the duty of the Governor to first reserve
it by an executive order, and then to give notice to the Court of Land Registration, but where the
land had already been reserved by competent authority, it not only was not necessary for the
Governor to issue any executive order reserving the land but he had no power to do so. In such
cases the only duty imposed upon him was to give notice to the Court of Land Registration that
the land had been reserved. This notice was given in the letter above quoted. The court had
jurisdiction to try the case.
The petitioner Jones, on the 1st day of May, 1901, bought the land in question from Sioco
Cario, an Igorot. He caused his deed to the land to be recorded in the office of the registrar of
property on the 8th day of May of the same year. Prior thereto, and while Sioco Cario was in
possession of the land, he commenced proceedings in court for the purpose of obtaining a
possessory information in accordance with the provisions of the Mortgage Law. This possessory
information he caused to be recorded in the office of the registrar of property on the 12th day of
March, 1901.
The evidence shows that Sioco Cario was born upon the premises in question; that his
grandfather, Ortega, during the life of the latter, made a gift of the property to Sioco. This gift
was made more than twelve years before the filing of the petition in this case that is, before
the 16th day of January, 1904. Sioco's grandfather, Ortega, was in possession of the land at the
time the gift was made, and has been in possession thereof for many years prior to said time.
Upon the gift being made Sioco took possession of the property, and continued in such
possession until his sale to Jones, the petitioner. Since such sale Jones has been in possession of
the land, and is now in such possession. For more than twelve years prior to the presentation of
the petition the land had been cultivated by the owners thereof, and the evidence is sufficient, in
our opinion, to bring the case within section 41 of the Code of Civil Procedure, and to show
such an adverse possession thereof for ten years as is required by the section. The evidence of
Sioco Carino shows that what he did in the way of presenting a petition to the Spanish
Government in regard to a deed of the land was done by order of the then comandante, and was
limited to securing a measurement thereof, as he then believed. These acts did not interrupt the
running of the statute of limitations.
Acts Nos. 627 and 648 provide that the provisions of section 41 of the Code of Civil Procedure
shall be applicable to all proceedings taken under either one of these acts. These acts in effect
provide that in determining whether the applicant is the owner of the land or not, the general
statute of limitations shall be considered, and shall be applied against the Government. The
evidence showing, as we have said, such an adverse possession, the petitioner proved his
ownership of the land if the Commission had authority to make the statute of limitations
applicable to these proceedings.
The claim of the Government is that this provision is void; that the act thereby disposes of
public lands; that Congress is the only authority that can take such action, and that it has never
authorized or approved the action of the Commission in applying the statute of limitations to
proceedings under Acts Nos. 648 and 627. We do not think that this contention can be sustained.
Section 12 of the act of Congress of July 1, 1902, provides as follows:
SEC. 12. That all the property and rights which may have been acquired in the Philippine
Islands by the United States under the treaty of peace with Spain, signed December tenth,
eighteen hundred and ninety-eight, except such land or other property as shall be
designated by the President of the United States for military and other reservations of the
Government of the United States, are hereby placed under the control of the Government
of said Islands, to be administered for the benefit of the inhabitants thereof, except as
provided in this act.
This gives the Government of the Philippine Islands power to dispose of these lands, and of all
public lands, and to pass the law in question, unless there is some provision in other parts of the
act of July 1, 1902, which takes away or limits that power. The government says that such
limitation is found in section 13 of the act. That section and sections 14 and 15 are as follows:
SEC. 13. That the Gonvernment of the Philippine Islands, subject to the provisions of this
Act and except as herein provided, shall classify according to its agricultural character
and productiveness, and shall immediately make rules and regulations for the lease, sale,
or other disposition of the public lands other than timber or mineral lands, but such rules
and regulations shall not go into effect or have the force of law until they have received
the approval of the President, and when approved by the President they shall be submitted
by him to Congress at the beginning of the next ensuing session thereof and unless
disapproved or amended by Congress at said session they shall at the close of such period
have the force and effect of law in the Philippine Islands: Provided, That a single
homestead entry shall not exceed sixteen hectares in extent.
SEC. 14. That the Government of the Philippine Islands is hereby authorized and
empowered to enact rules and regulations and to prescribe terms and conditions to enable
persons to perfect their title to public lands in said Islands, who, prior to the transfer of
sovereignty from Spain to the United States, had fulfilled all or some of the conditions
required by the Spanish laws and royal decrees of the Kingdom of Spain for the
acquisition of legal title thereto, yet failed to secure conveyance of title; and the
Philippine Commission is authorized to issue patents, without compensation, to any
native of said Islands, conveying title to any tract of land not more than sixteen hectares
in extent, which were public lands and had been actually occupied by such native or his
ancestors prior to and on the thirteenth of August, eighteen hundred and ninety-eight.
SEC. 15. That the Government of the Philippine Islands is hereby authorized and
empowered, on such terms as it may prescribe, by general legislation, to provide for the
granting or sale and conveyance to actual occupants and settlers and other citizens of said
Islands such parts and portions of the public domain, other than timber and mineral lands,
of the United States in said Islands as it may deem wise, not exceeding sixteen hectares to
any one person, and for the sale and conveyance of not more than one thousand and
twenty-four hectares to any corporation or association of persons: Provided, That the
grant or sale of such lands, whether the purchase price be paid at once or in partial
payments, shall be conditioned upon actual and continued occupancy, improvement, and
cultivation of the premises sold for a period of not less than five years, during which time
the purchaser or grantee can not alienate or encumber said land or the title thereto; but
such restriction shall not apply to transfers of rights and title of inheritance under the laws
for the distribution of the estates of decedents.
It is first to be noted that section 13 does not apply to all lands. Timber and mineral lands are
expressly excluded. If the Commission should pass laws relating to mineral lands without
submitting them to Congress, as it has done (Act No. 624), their validity would not be
determined by inquiring if they had been submitted to Congress under section 13, but rather by
inquiring if they were inconsistent with other provisions of the act relating to mineral lands. In
other words, the fact that such laws were not submitted to Congress would not necessarily make
them void.
The same is true of legislation relating to coal lands, as to which sections 53 and 57 contain
provisions. By section 57 this Government is authorized to issue all needful rules and
regulations for carrying into effect this and preceding sections relating to mineral lands. Such
regulations need not be submitted to Congress for its approval. Act No. 1128, relating to coal
lands, was not submitted.
The act of Congress also contains provisions regarding the purchase of lands beloning to
religious orders. Section 65 provides as to those lands as follows:
SEC. 65. That all lands acquired by virtue of the preceding section shall constitute a part
and portion of the public property of the Government of the Philippine Islands, and may
be held, sold, and conveyed, or leased temporarily for a period not exceeding three years
after their acquisition by said Government, on such terms and conditions as it may
prescribe, subject to the limitations and conditions provided for in this Act. . . . Actual
settlers and occupants at the time said lands are acquired by the Government shall have
the preference over all others to lease, purchase, or acquire their holdings within such
reasonable time as may be determined by said Government.
Does the clause "subject to the limitations and conditions of this act" require a submission to
Congress of legislation concerning such land? If it does, then Act No. 1120, which contains such
provisions, is void, because it was never so submitted.
Section 18 of the act of Congress provides as follows:
That the forest laws and regulations now in force in the Philippine Islands, with such
modifications and amendments as may be made by the Government of said Islands, are
hereby continued in force.
Must these modifications and amendments be submitted to Congress for its approval? If they
must be, then Act No. 1148, relating thereto, is void, because it was not so submitted.
It seems very clear that rules and regulations concerning mineral, timber, and coal lands, and
lands bought from religious orders need not be submitted to Congress. If they are not
inconsistent with the provisions of the act of Congress relating to the same subjects, they are
valid.
Congress, by section 12 of the act, gave to the Philippine Government general power all
property acquired from Spain. When it required the Commision to immediately classify the
agricultural lands and to make rules and regulations for their sale, we do not think that it
intended to virtually repeal section 12. Such, however, would be the effect of the rule contended
for by the Govenrment. If, notwithstanding the provisions of section 12, any law which in any
way directly or indirectly affects injuriously the title of the Government to public lands must be
submitted to the President and Congress for approval, the general power given by section 12 is
taken away. An examination of some of the laws of the Commission will show that a holding
such as is contended for by the Government in this case would apparently require a holding that
such other laws were also void. Act No. 496, which established the Court of Land Registration,
the court that tried this case, provides in section 38 that the decrees of the court shall be
conclusive on and against all persons, including the Insular Government, and all the branches
thereof. Neither the President nor Congress ever gave their consent to this law. They never
consented that the title of the Government to public lands should be submitted to the judgment
of the courts of the Islands. That this law provides a means by which the Government may be
deprived of its property in such lands is apparent. In this very case, if the Government had not
appealed from the judgment, or if it should withdraw its appeal, the lands would be lost to it-lands which the Attorney-General claims are public lands. The land could not be more
effectually lost by the law shortening the statute of limitations than by this law making the
decrees of the Court of Land Registration binding on the Government. In fact, the former law
could not in any way prejudice the Government if it were not for the latter law making the
judgments of this court binding upon it. Both of these laws in an indirect way affect the title to
public lands, but we do not think that for that reason they are included in the terms "rules and
regulations" used in section 13 of the act of Congress.
Act No. 1039 granted to the Province of Cavite and to the pueblo of Cavite certain public lands.
This act never was submitted either to the President or Congress. Acts Nos. 660 and 732
authorized the leasing of parts of the San Lazaro estate. The Government leased the sanitarium
at Benguet, and provided for its sale. None of these acts were ever submitted to the President or
Congress, which authorized such disposition. The Government owns many isolated tracts of
land, such as the Oriente Hotel, for example. It has reclaimed from the sea a large tract of land in
connection with the works of the port of Manila. If the Government should desire to sell this
reclaimed land or to lease a part of it for the site of an hotel, or should desire to sell the Oriente
Hotel building, we do not think legislation to accomplish such purposes would require the
previous approval of the President and of Congress. The general purpose of section 13 was to
require the Government to classify agricultural lands and to pass a homestead law that is, a
law which would state the rules and regulations by virtue of which title to the public lands of
which it can be decided in every case whether an act of the Commission constitutes a rule or
regulation within the meaning of section 13. It is sufficient to say that the law in question (Act
No. 648), making a statute of limitations run against the Government when the title to few
scattered tracts of land throughout the Archipelago is under consideration, is not such a rule or
regulations as required previous submission to the President and Congress. It will be observed
that be section 86 of the act of Congress of July 1, 1902, Congress reserves the right to annul all
legislation of the Commission.
There is nothing in section 14 which requires the rules and regulations therein mentioned to be
submitted to Congress. But it is said that although as to Act No. 648 submission to Congress was
not required, it is nevertheless void when applied to one not a native of the Islands, because
forbidden by this section; and that this section limits the power of the Commission to declare
possession alone sufficient evidence of title to cases in which the claimant is native and in which
the amount of land does not exceed 16 hectares.
Section 14 is not limited to agricultural lands, as are sections 13 and 15. It includes mineral and
timber lands. So far as it relates to proceedings theretofore taken under Spanish laws its benefits
are not limited to natives of the Islands nor to tracts not more than 16 hectares in extent. Where
the only claim is possession, no possession for any definite time prior to August 13, 1898, is
required, nor is proof of any possession whatever after that date demanded. According to the
strict letter of the section a native would be entitled to a patent who proved that he had been in
possession for the months of July and August only of 1898. It is not stated whether or not one
who receives such a patent must occupy the land for five years thereafter, as required by section
15. Neither is it stated whether or not a person who was in possession for the month of August,
1898, would be entitled to a patent in preference to the actual settler spoken of in section 6.
When legislating upon the subject-matter of section 14, the Commission, in Act No. 926, did not
make such a limitation as has been suggested. Section 54, paragraph 6, of that act is as follows:
All persons who by themselves or their predecessors in interest have been in the open,
continuous, exclusive, and notorious possession and occupation of agricultural public
land, as defined by said act of Congress of July first, nineteen hundred and two, under
a bona fide claim of ownership except as against the Government, for a period of ten
years next preceding the taking effect of this act, except when prevented by war or force
majeure, shall be conclusively presumed to have performed all the conditions essential to
a Government grant and to have received the same, and shall be entitled to a certificate of
title to such land under the provision of this chapter.
It is seen that this section does not exclude foreigners, nor is it limited to tracts not exceeding 16
hectares in extent. To adopt the view that the power of the Commission is so limited would
require a holding that this section is void as to foreigners and as to all tracts of land over 16
hectares in extent.
This paragraph of section 54 of Act No. 926 is in substance a continuation of Act No. 648 and an
extension of its provisions to all the lands of the Islands.
To adopt the construction contended for would lead to an unjust result. By the terms of the first
part of section 14 the Commission has the power to perfect the title to 100 hectares of land as to
which a Spaniards may have done nothing more than to file an application relating thereto, and
of which he never was in possession, while by the last party of the section the Commission
would be entirely without power to make any rules by which a native who by himself and his
ancestors had been in possession of 100 hectares. Such a discrimination in favor of foreigners
and against the natives could not have been intended. It could not have been the purpose of
Congress to give the Commission ample power to legislate for the benefit of foreigners and to
limit its power to legislate for the benefit of natives.
The meaning of these sections is not clear, and it is difficult to give to them a construction that
will be entirely free from objection. But we do not think that authority given by the Commission
to issue to a native a patent for 16 hectares of land of which he was in possession during the
month of August, 1898, was intended to limit the general power of control which by section 12
is given to the Commission.
The judgment of the court below is affirmed, with the costs of this instance the appellant. After
the expiration of twenty days let final judgment be entered in accordance herewith and ten days
thereafter let the cause be remanded to the lower court for proper procedure. So ordered.
Arellano, C.J., Torres, Mapa, Johnson and Tracey, JJ., concur.
Republic
SUPREME
Manila
of
the
Philippines
COURT
EN BANC
G.R. No. L-3793
February 19, 1908
CIRILO
vs.
THE INSULAR GOVERNMENT, respondent-appellant.
Attorney-General
Basilio R. Mapa for appellee.
Araneta
MAPA, petitioner-appellee,
for
appellant.
WILLARD, J.:
This case comes from the Court of Land Registration. The petitioner sought to have registered a
tract of land of about 16 hectares in extent, situated in the barrio of San Antonio, in the district of
Mandurriao, in the municipality of Iloilo. Judgment was rendered in favor of the petitioner and the
Government has appealed. A motion for a new trial was made and denied in the court below, but no
exception was taken to the order denying it, and we therefore can not review the evidence.
The decision of that court was based upon Act No. 926 section 54, paragraph 6 which follows:
All persons who by themselves or their predecessors in interest have been in the open,
continuous exclusive, and notorious possession and occupation of agricultural public lands,
as defined by said act of Congress of July first, nineteen hundred and two, under a bona fide
claim of ownership except as against the Government, for a period of ten years next
preceding the taking effect of this act, except when prevented by war, or force majeure, shall
be conclusively presumed to have performed all the conditions essential to a Government
grant and to have received the same, and shall be entitled to a certificate of title to such land
under the provisions of this chapter.
The only question submitted to the court below or to this court by the Attorney-General is the
question whether the land in controversy is agricultural land within the meaning of the section
above quoted. The findings of the court below upon that point are as follows:
From the evidence adduced it appears that the land in question is lowland, and has been
uninterruptedly, for more than twenty years, in the possession of the petitioner and his
ancestors as owners and the same has been used during the said period, and up to the present,
as fish ponds, nipa lands, and salt deposits. The witnesses declare that the land is far from the
sea, the town of Molo being between the sea and the said land.
The question is an important one because the phrase "agricultural public lands" as defined by said
act of Congress of July 1, is found not only in section 54 above quoted but in other parts of Act No.
926, and it seems that the same construction must be given to the phrase wherever it occurs in any
part of that law.
The claim of the Attorney-General seems to be that no lands can be called agricultural lands unless
they are such by their nature. If the contention of the Attorney-General is correct, and this land
because of its nature is not agricultural land, it is difficult to see how it could be disposed of or what
the Government could do with it if it should be decided that the Government is the owner thereof. It
could not allow the land to be entered as a homestead, for Chapter I of Act No. 926 allows the entry
of homesteads only upon "agricultural public lands" in the Philippine Islands, as defined by the act
of Congress of July 1, 1902. It could not sell it in accordance with the provisions of Chapter II of
Act No. 926 for section 10 only authorizes the sale of "unreserved nonmineral agricultural public
land in the Philippine Islands, as defined in the act of Congress of July first, nineteen hundred and
two." It could not lease it in accordance with the provisions of Chapter III of the said act, for section
22 relating to leases limits them to "nonmineral public lands, as defined by section eighteen and
twenty of the act of Congress approved July first, nineteen hundred and two." It may be noted in
passing that there is perhaps some typographical or other error in this reference to sections 18 and
20, because neither one of these sections mentions agricultural lands. The Government could not
give a free patent to this land to a native settler, in accordance with the provisions of Chapter IV, for
that relates only to "agricultural public land, as defined by act of Congress of July first, nineteen
hundred and two."
In fact, by virtue of the provisions of Act No. 926, the Government could do nothing with this land
except to lay out a town site thereon in accordance with the provisions of Chapter V, for section 36
relating to that matter, says nothing about agricultural land.
The question before us is not what is agricultural land, but what definition has been given to that
phrase by the act of Congress. An examination of that act will show that the only sections thereof
wherein can be found anything which could be called a definition of the phrase are sections 13 and
15. Those sections are as follows:
SEC. 13. That the Government of the Philippine Islands, subject to the provisions of this act
and except as herein provided, shall classify according to its agricultural character and
productiveness, and shall immediately make rules and regulations for the lease, sale, or other
disposition of the public lands other than timber or mineral lands, but such rules and
regulations shall not go into effect of have the force of law until they have received the
approval of the President, and when approved by the President they shall be submitted by
him to Congress at the beginning of the next ensuing session thereof and unless disapproved
or amended by Congress at said session they shall at the close of such period have the force
and effect of law in the Philippine Islands: Provided, That a single homestead entry shall not
exceed sixteen hectares in extent.
SEC. 15. That the Government of the Philippine Islands is hereby authorized and empowered
on such terms as it may prescribe, by general legislation, to provide for the granting or sale
and conveyance to actual occupants and settlers and other citizens of said Islands such parts
and portions of the public domain, other than timber and mineral lands, of the United States
in said Islands as it may deem wise, not exceeding sixteen hectares to any one person and for
the sale and conveyance of not more than one thousand and twenty-four hectares to any
corporation or association of persons: Provided, that the grant or sale of such lands, whether
the purchase price be paid at once or in partial payments shall be conditioned upon actual and
continued occupancy, improvement, and cultivation of the premises sold for a period of not
less than five years, during which time the purchaser or grantee can not alienate or encumber
said land or the title thereto; but such restriction shall not apply to transfers of rights and title
of inheritance under the laws for the distribution of the estates of decedents.
It is seen that neither one of these sections gives any express definition of the phrase "agricultural
land." In fact, in section 15 the word "agricultural" does not occur.
There seem to be only three possible ways of deciding this question. The first is to say that no
definition of the phrase "agricultural land" can be found in the act of Congress; the second, that
there is a definition of that phrase in the act and that it means land which in its nature is agricultural;
and, third, that there is a definition in the act and that the phrase means all of the public lands
acquired from Spain except those which are mineral or timber lands. The court below adopted this
view, and held that the land, not being timber or mineral land, came within the definition of
agricultural land, and that therefore Section 54 paragraph 6, Act No. 926 was applicable thereto.
1. There are serious objections to holding that there is no definition in the act of the phrase
"agricultural land." The Commission in enacting Act No. 926 expressly declared that such a
definition could be found therein. The President approved this act and it might be said that
Congress, by failing to reject or amend it, tacitly approved it. Moreover, if it should be said that
there is no definition in the act of Congress of the phrase "agricultural land," we do not see how any
effect could be given to the provisions of Act No. 916, to which we have referred. If the phrase is
not defined in the act of Congress, then the lands upon which homesteads can be granted can not be
determined. Nor can it be known what land the Government has the right to sell in accordance with
the provisions of Chapter II, nor what lands it can lease in accordance with the provisions of
Chapter III, nor the lands for which it can give free patents to native settlers in accordance with the
provisions of Chapter IV, and it would seem to follow, necessarily, that none of those chapters could
be put into force and that all that had up to this time been done by virtue thereof would be void.
2. The second way of disposing of the question is by saying that Congress has defined agricultural
lands as those lands which are, as the Attorney-General says, by their nature agricultural. As has
been said before, the word "agricultural" does not occur in section 15. Section 13 says that the
Government "shall classify according to its agricultural character and productiveness and shall
immediately make rules and regulations for the lease, sale, or other disposition of the public lands
other than timber or mineral land." This is the same thing as saying that the Government shall
classify the public lands other than timber or mineral lands according to its agricultural character
and productiveness; in other words, that it shall classify all the public lands acquired from Spain,
and that this classification shall be made according to the agricultural character of the land and
according to its productiveness.
One objection to adopting this view is that it is so vague and indefinite that it would be very difficult
to apply it in practice. What lands are agricultural in nature? The Attorney-General himself in his
brief in this case says:
The most arid mountain and the poorest soil are susceptible of cultivation by the hand of
man.
The land in question in this case, which is used as a fishery, could be filled up and any kind of crops
raised thereon. Mineral and timber lands are expressly excluded, but it would be difficult to say that
any other particular tract of land was not agricultural in nature. Such lands may be found within the
limits of any city. There is within the city of Manila, and within a thickly inhabited part thereof an
experimental far. This land is in its nature agricultural. Adjoining the Luneta, in the same city, is a
large tract of land, Camp Wallace, devoted to sports. The land surrounding the city walls of Manila,
between them and the Malecon Drive on the west, the Luneta on the south, and Bagumbayan Drive
on the south and east, is of many hectares in extent and is in nature agricultural. The Luneta itself
could at any time be devoted to the growing of crops.
The objection to adopting this construction on account of its uncertainty is emphasized when we
consider that whether certain land was or was not agricultural land, as defined by the act of
Congress, and therefore subject to homestead entry, to sale, or to lease in accordance with the
provisions of Act No. 926, would be a question that would finally have to be determined by the
courts, unless there is some express provision of the law authorizing the administrative officers to
determine this question for themselves. Section 2 of Act No. 926 relating to homesteads provides
that the Chief of The Bureau of Public Lands shall summarily determine whether the land described
is prima facie under the law subject to homestead settlement. Section 13, relating to the sale of
public lands, provides simply that the Chief of the Bureau of Public Lands shall determine from the
certificate of the Chief of the Bureau of Forestry whether the land applied for is more valuable for
agricultural than for timber purposes, but it says nothing about his decisions as to whether it is or is
not agricultural land in its nature. Section 26 relating to the lease of public lands provides that the
Chief of the Bureau of Public Lands shall determine from the certificate of the Chief of the Bureau
of Forestry whether the land applied for is more valuable for agricultural than for timber purposes
and further summarily determine from available records whether the land is or is not mineral and
does not contain deposits of coal or salts. Section 34 relating to fee patents to native settlers makes
no provision for any determination by the Chief of Bureau of Public Lands in regard to the character
of the land applied for.
After homesteads have been entered, lands, sold, and leases made by the administrative officers on
the theory that the lands were agricultural lands by their nature, to leave the matter of their true
character open for subsequent action by the courts would be to produce an evil that should if
possible be avoided.
3. We hold that there is to be found in the act of Congress a definition of the phrase "agricultural
public lands," and after a careful consideration of the question we are satisfied that the only
definition which exists in said act is the definition adopted by the court below. Section 13 says that
the Government shall "Make rules and regulations for the lease, sale, or other disposition of the
public lands other than timber or mineral lands." To our minds, that is the only definition that can be
said to be given to acricultural lands. In other words, that the phrase "agricultural land" as used in
Act No. 926 means those public lands acquired from Spain which are not timber or mineral lands.
As was said in the case of Jones vs. The Insular Government (6 Phil Rep., 122, 133) where these
same section of the act of Congress were under discussion:
The meaning of these sections is not clear and it is difficult to give to them a construction
that would be entirely free from objection.
But the construction we have adopted, to our minds, is less objectionable than any other one that has
been suggested.
There is nothing in this case of Jones vs. The Insular Government which at all conflicts with the
result here arrived at. The question as to whether the lands there involved were or were not
agricultural lands within the meaning of the sections was neither discussed nor decided. In fact, it
appears from the decision that those lands, which were in the Province of Benguet, were within the
strictest definition of the phrase "agricultural lands." It appears that such lands had been cultivated
for more than twelve years. What that case decided was, not that the lands therein involved and
other lands referred to in the decision by way of illustration were not agricultural lands but that the
law there in question and the other laws mentioned therein were not rules and regulations within the
meaning of section 13.
The judgment of the court below is affirmed, with the costs of this instance against the appellant. So
ordered.
Arellano,
C.J.,
Johnson, J., concurs in the result.
and
Torres,
J., concur.
Separate Opinions
TRACEY, J., concurring:
By its title as well as throughout its text Act No. 926 is restricted to the "Public domain of the
Philippine Islands" and to "public lands" in said Islands. This act, drawn in furtherance of an act of
Congress, must be interpreted according to the American understanding of the words employed and
the meaning of these terms as definitely fixed by decisions of the United States Supreme Court.
"Public domain" and "public lands" are equivalent terms. (Barker vs. Harvey, 181, U.S., 481, 490.
The words "public lands" are habitually used in our legislation to describe such as are subject
to sale or other disposal under general laws. (Newhall vs. Sanger, 92 U.S., 761)
A grant of public lands applies only to lands which at the time are free from existing claims.
(Bardon vs. Northern Pacific R.R. Co., 145 U.S., 535, 543.)
These words do not include land reserved for the use of certain Indian tribes, although still the
property of the United States (Leavenworth, etc., vs. United States, 92 U.S., 733), nor lands covered
and uncovered by the ebb and flow of the tide. (Mann vs. Tacoma Land Co., 153 U.S., 273.) And the
same was held of the words "unoccupied and unappropriated public lands." (Shively vs. Bowlby,
152 U.S., 1.)
In Wilcox vs. Jackson (13 Peters, 498, 513) it was held that whenever a tract of land has been
legally appropriated to any purpose, from that moment it becomes severed from the mass of public
lands and no subsequent law will be construed to embrace it, although no express reservation is
made. There have been similar rulings in regard to reservations for military purposes, for town sites,
educational purposes, and for mineral and forest uses. Consequently Act No. 926 applies only to the
lands of the United States in these Islands not already devoted to public use or subject to private
right, and this construction necessarily excludes from its scope lands devoted to the use of
municipalities, including public buildings and such tracts as Wallace Field and the strip surrounding
the walls of the City of Manila. As the act has no application to them, they are not public lands in
this sense, and can not be included within the term "agricultural public lands."
In referring to agricultural lands as being defined in the act of Congress of July 1, 1902, the
Philippine Commission must have had in mind this well-settled meaning of the terms employed and
have used the word "agricultural" to distinguish and include such public lands, not otherwise
appropriated as, were not devoted to forestry and mining which is consistent with the direction of
section 13 of the act of Congress that public lands, other than timber or mineral lands, should be
classified according to their agricultural character and productiveness.
In view of the restricted scope of these statutes under the decisions of the United States Supreme
Court, this direction as to the classification of all remaining lands not forest or mineral in character,
"according to their agricultural nature and productiveness," may fairly be considered a definition of
them as agricultural lands, with the result of freeing the act of the Commission from ambiguity.
It was apparently the intention of Congress that such classification, in a general way, should be
immediately made, but the fact that it has been delayed does not prevent the designation of any
particular parcel of land, upon being granted by the Government, as coming under one of these
heads.
For these reason, I concur in the interpretation put upon this act in the majority opinion.
Carson, J., concurs.
Republic
SUPREME
Manila
of
the
Philippines
COURT
EN BANC
G.R. No. L-25010
October 27, 1926
THE
GOVERNMENT
OF
THE
vs.
PAULINO
ABELLA,
MARIA DEL ROSARIO, petitioner-appellant.
Francisco,
Lualhati
and
Attorney-General Jaranilla for appellee.
PHILIPPINE
ISLANDS, plaintiff-appellee,
ET
AL., claimants;
Lopez
for
appellant.
JOHNSON, J.:
This is a petition for the registration of a certain parcel or tract of land located in the municipality of
San Jose, Province of Nueva Ecija, Philippine Islands. It appears from the record that on the 21st
day of September, 1915, the appellant Maria del Rosario presented a petition in the Court of First
Instance for the registration under the Torrens system, of the very land now in question by virtue of
her appeal. In that case, after issue joined and after hearing the evidence, the Honorable Vicente
Nepomuceno, judge, denied the registration of all of the northern portion of the land included in her
petition represented by Exhibit 1, which was the plan presented in that action, upon the ground that
said portion was more valuable for timber purposes than for agricultural purposes. From that
judgment Maria del Rosario appealed.
The Supreme Court after a consideration of the evidence affirmed the decision of the lower court. In
the course of that decision the Supreme Court, speaking through Mr. Justice Moir, said: "We have
examined the plans and all the evidence presented in this case and are of the opinion that the trial
court was correct in its declaration that this send a did not mean the old road to Bogabon. The fact
that nearly all the northern property is forestry land is a further indication that the applicant's
possessory information title did not include the land running up to the road to Bongabon, because all
the papers which the applicant has regarding this property call the land palayero." 1
Judge Nepomuceno in his decision directed that the appellant herein present an amended plan in that
case, showing the particular part or parcel of the land in question which she was entitled to have
registered. We have no evidence before us showing that order of Judge Nepomuceno was ever
complied with.
Nothing further seems to have occurred with reference to the registration of the land included in the
former case until the 26th day of April, 1921, when the Acting Director of Lands presented the
petition in the present case for the registration, under the cadastral survey, of a portion of land
located in the municipality of San Jose, which included the very land claimed by Maria del Rosario
in the former action. She presented her opposition in the present action, claiming the very land
which she claimed in the former action. The only proof which she presented in support of her claim
in the present action was the proof which she had presented in the former action. No proof was
adduced in addition thereto, which in the slightest degree showed that she was entitled to the
registration of any other parcel of land than those which had been conceded to her in the first action.
Upon the issue and the proof adduced in the present case the Honorable C. Carballo, Auxiliary
Judge of the Sixth Judicial District, ordered registered in the name of Maria del Rosario, under the
cadastral survey, lots 3238, 3240, 3242 and 3243, which are the very lots which had been ordered
registered in her name in the former action. From that judgment she appealed to this court upon the
ground that the lower court committed an error in not registering all of the land included in her
opposition in her name.
1awph!l.net
In this court she presented a motion for rehearing and in support thereof presents some proof to
show that the northern portion of the land in question is not forestry land but that much of it is
agricultural land. With reference to said motion for rehearing, it may be said that all of the proof
which is presented in support thereof existed at the time of the trial and might, with reasonable
diligence, have been presented. It cannot, therefore, be considered now. It is not newly discovered
evidence. And moreover if it should be accepted it would not be sufficient to justify the granting of
a new trial.
After a careful examination of the entire record and the evidence adduced during the trial of this
cause as well as that adduced during the trial of the first cause, we are fully persuaded that no error
has been committed. Whether particular land is more valuable for forestry purposes than for
agricultural purposes, or vice-versa, is a question of fact and must be established during the trial of
the cause. Whether the particular land is agricultural, forestry, or mineral is a question to be settled
in each particular case, unless the Bureau of Forestry has, under the authority conferred upon it,
prior to the intervention of private interest, set aside for forestry or mineral purposes the particular
land in question. (Ankron vs. Government of the Philippine Islands, 40 Phil., 10.) During the trial of
the present cause the appellant made no effort to show that the land which she claimed, outside of
that which had been decreed in her favor, was more valuable for agricultural than forestry purposes.
For all of the foregoing, the judgment appealed from is hereby affirmed, with costs. So ordered.
Avancea, C. J., Street, Villamor, Ostrand, Johns, Romualdez and Villa-Real, JJ., concur.
Footnotes
Del Rosario vs. Director of Lands, R. G. No. 13226, promulgated January 27, 1919, not
reported.
1

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U.S.

U.S. Supreme Court

Page 212 U. S. 450

Page 212 U. S. 455

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Republic of the Philippines

THE SECRETARY OF THE DEPARTMENT OF ENVIRONMENT AND NATURAL

DR. ORLANDO SACAY and WILFREDO GELITO, joined by THE LANDOWNERS OF

RESOURCES, THE REGIONAL TECHNICAL DIRECTOR FOR LANDS, LANDS

Regalian Doctrine and power of the executive

MA. ALICIA AUSTRIA-MARTINEZ

(On official leave)

CONCHITA CARPIO MORALES

PRESBITERO J. VELASCO, JR.

As of the year 2000.

Manoc-Manoc, Balabag, and Yapak.

Under Survey Plan No. NR-06-000001.

Rollo (G.R. No. 167707), p. 49.

Records, pp. 13-32; Annexes "A" to "A-18."

Issued on May 19, 1975.

Rules of Court, Rule 129, Sec. 2.

Id. at 177, 178.

Rollo (G.R. No. 167707), p. 54.

Rollo (G.R. No. 167707), p. 51.

Owner of Willys Beach Resort.

Rollo (G.R. No. 173775), p. 20; Annex "A."

Rollo (G.R No. 173775), pp. 4-5.

Rollo (G.R. No. 167707), p. 26.

Rollo (G.R. No. 173775), pp. 280-281.

Constitution (1935), Art. XIII, Sec. 1.

Constitution (1973), Art. XIV, Sec. 10.

Constitution (1987), Art. XII, Sec. 3.

Collado v. Court of Appeals, supra note 47.

Effective February 13, 1894.

De Aldecoa v. The Insular Government, 13 Phil. 159 (1909).

See note 36.

The provisions relevant to the definition are:

10 Phil. 175 (1908).

Collado v. Court of Appeals, supra note 47.

Sec. 54, par. 6.

An Act to Amend Subsection (b) of Section Forty-Eight of Commonwealth Act Numbered

Presidential Decree No. 1529, Preamble; Director of Lands v. Intermediate Appellate

Chavez v. Public Estates Authority, supra note 46.

Supra note 54.

Ankron v. Government of the Philippine Islands, supra at 16.

Ankron v. Government of the Philippine Islands, supra note 88, at 16.

79 Phil. 461 (1947).

Supra note 64.

Supra note 54.

Supra note 88.

Art. XIII, Sec. 1.

Krivenko v. Register of Deeds of Manila, supra note 100, at 468-469.

Act No. 926, Sec. 54, par. 6 states:

Supra note 47.

G.R. No. 135385, December 6, 2000, 347 SCRA 128.

Collado v. Court of Appeals, id. at 356.