Legal History Report

Lynch, Chapter 13: Disenfranchisement Qua Paternalism

Non-Christian Fiefdom of the United States in the Philippine Islands

I. Introduction
a. Law is the foundation of social order.
i. Law sets the boundaries within which members of society live.
ii. In the hands of a benevolent lawmaker, law can be used to create a society in a
form that is in the best interest of its members.
iii. More often than not, however, those who wield lawmaking powers choose to
advance their own agenda. It is a rational decision that has inequitable
consequences.
b. Thesis: During the American Occupation, the law was used by the colonizers to
disenfranchise the natives of the Philippines in order to advance their own interests.
i. American policies ostensibly intended to civilize the natives, particularly the
Non-Christian Tribes. But as the report will show, both the apparent motives and
results of several policies led to the loss of rights de facto held by the natives even
during the Spanish regime.
ii. Previous reports have so far focused on how history has shaped the law. This
report focuses on how the American policies, embodied in the laws they enacted,
shaped the lives of the people they bound.
c. Notes on Report
i. Sources: while the report covers most of Prof. Owen Lynch’s Chapter (13), it is
supplemented by a study of landmark US and Philippine Supreme Court cases,
statutes enforced during the Occupation, and secondary published works
ii. Instead of a separate part at the end of the report, the analysis and critique are
interposed between the different segments.
d. Outline:
i. Native American Precedent
1. The Case of Cherokee Nation v. State of Georgia
2. Other Policies
ii. The Non-Christians
1. The Bureau of Non-Christian Tribes
2. The Louisiana Exhibition
iii. Policies for the Pagan Realm
1. Township Governments and Special Provinces
2. Dean Worcester and the Northern Realm
3. The Case of Rubi v. Province of Mindoro
iv. Policies for the Moro Province
1. The Political and Legal System of Mindanao
2. The Disarmament Policy and the Battle of Bud Bagsak
v. Conclusion: Present-day Implications
e. Definition of terms: (cf. New Oxford American Dictionary)
i. Disenfranchisement: deprive of power, rights, and privilege; marginalize
ii. Paternalism: practice of people in authority restraining their subordinates in the
subordinates’ supposed best interests
iii. Non-Christian Tribes: natives who have not been Christianized under the
Spanish regime; reside in domains that have been largely autonomous or
independent during the Spanish colonization.
II. Native American Precedent
a. McKinley’s Instructions: Adopt the same course followed by Congress in permitting the
tribes of our North American Indians to maintain their tribal organization.
i. Conditions: subject to wise and firm regulation, prevent barbarous practice,
introduce civilized customs
ii. Lynch: quote shows, at the very least, an ignorance of history
b. The Cherokee Nation v. The State of Georgia (1831)
 i. Antecedent facts:
1. The Cherokee Nation always saw themselves as independent nations.
Treaties between CN and the US and its subdivisions recognize their
right to self-government, especially since they had continuously existed
as communities long before the birth of the Union. They had their own
laws that prevailed over their occupied territories.
2. Beginning 1828, the State Legislature of Georgia passed the ff. laws:
a. Act to annex Indian-occupied territories and enforce State laws
b. Act to annul laws made by CN and regulate testimony of Indians
c. Act to dispose Cherokee lands by lottery to the people of Georgia
d. Act to declare void all contracts made with Cherokee
e. Act to authorize governor to take possession of mines in
Cherokee country
3. The Cherokees, suing as a foreign state, went to the US Supreme Court
to ask for an injunction, claiming these laws violated treaties recognized
in the US, the US Constitution, and the Act of Congress (1802).
4. Cherokees insist that without the intervention of the Court, they will be
forced to either (1) surrender their territory (w/c shall kill their
civilization and sovereignty), or (2) use arms to defend their rights.
ii. Ruling of the Court:
1. The Court dismissed the bill (petition) on the grounds that it did not have
jurisdiction over the case.
a. Court has jurisdiction over suits between a State of the Union
and a foreign State; but the Cherokee Nation is not a foreign
state. It is a domestic dependent nation; its relationship w/ the
US is ward-to-guardian. Hence, it cannot be a party to the case.
b. The petition requires the Court to control the Georgia legislature
and restrain physical force—an exercise of political power.
2. The Court claimed that it was not the proper tribunal in which said
rights could be asserted.
iii. Effect: Trail of Tears migration of Cherokee from their ancestral land.
c. Other Policies
i. Doctrine of Aboriginal Title: recognized Indian’s undocumented but
constitutionally protected property rights over ancestral domains.
ii. General Allotment Act of 1887: designed to break down tribal distinctions and
ties between Indians, and to treat them as individuals. Claimed as a “final,
comprehensive solution to Indian problem.” Linked citizenship to private,
individual land ownership.
iii. Use of Indian reservations
III. The Non-Christians
a. In the course of the occupation and across several laws, the main objective of American
Policy towards the non-Christians seems to be to assimilate them to the general, “semi-
civilized” population.
b. US Policy on the Philippines seems to “trichotomize” the population into 3 groups:
i. Hispanicized
ii. Non-Christian, Pagan tribes: reside mostly in the uplands
iii. Non-Christian, Moro peoples: Islamic, reside in Mindanao and Palawan
c. The Bureau of Non-Christian Tribes
i. Initial main task: research among un-Hispanicized tribes.
ii. Ilustrados objected because (1) they were ashamed of their shared heritage with
the NCT and (2) “non-Christian” implied that even the Ilustrados were tribal.
iii. Later given special tasks, such as the organization of the Philippine Exhibit.
d. Louisiana Purchase Exhibition (1904)
i. Held to celebrate the centennial of the Louisiana Purchase; considered the largest
and longest World’s Fair in history, it featured several exhibitions and even
hosted the 1904 Olympic Games.
 ii. The Philippine Exhibit
1. In order to drum up US public support for the colonial effort, a Philippine
exhibit was organized for the fair.
2. The exhibit featured 15 full-sized replicas of Philippine villages and
covered 50 acres, 100 buildings. It was the second-largest country exhibit,
next only to the US, and featured scenes like “The Visayas,” “The
Cordilleras,” and “The Walled City.”
3. Exhibits filled with live people; 1,000 Filipinos shipped to St. Louis.
4. Poor treatment: at least one Negrito died in (unheated) railroad car while
being transported across northern plains to St. Louis.
IV. Policies for the Pagan Realm
a. From 1901-1916, two Philippine Commissions governed the colony at-large. Empowered
to enact laws, policies concerning the non-Christian tribes were promulgated by them and
their officials.
b. Early Policies:
i. Civil governments in un-Hispanicized areas: e.g. Benguet; those who were male,
at least 18 years of age, and 6-month residents of the province were allowed to
vote for local officials. Implemented not to institute democratic reforms, but to
prevent increasing number of US miners from gaining control of the resource-rich
territory.
ii. Civil governments in Hispanicized areas: People could also vote for their local
officials, but voters were restricted to people who were “civilized,” i.e. at least
Christian. Non-Christian settlements were explicitly excluded from the territorial
jurisdiction of local governments of this type.
i. Land Tax: Non-Christian lands were not subject to taxation, even if the
landowner was Christian; this exemption incentivized local elites to extend
claims to ancestral domains. Moreover, the policy was not born of paternalistic
considerations, but pragmatic reasons—NCT towns were reliant on subsistence
economies, and therefore possessed little money.
c. Township Governments and Special Provinces
i. Several acts were passed creating new civil governments. Among them were Act
No. 387 (1902), establishing civil governments in Nueva Vizcaya, which became
the model for local governments in similar provinces. Among its features were:
1. Revival of Benguet electoral formula
2. Conscription of Ifugaos in the Phil. Constabulary, to keep them in contact
with Americans
3. Commission-appointed Provincial Governor authorized (w/ approval of
Secretary Worcester) to dispossess/relocate NCT when “necessary” for
law and order
4. ‘Insufficiently advanced’ towns were not covered by the Act, i.e. were
placed directly under Worcester (N.B. NV composed of 15,500 “PHL
Christians” and 60,000 “Igorots”)
ii. In 1905, the Commission passed two local government measures, namely Act
1396 (Special Provincial Government Act) and Act 1397 (Township Government
Act). The following are its main features:
1. Public rationale for “special” laws: the “wild nature” of un-Hispanicized
required special forms of governance.
2. Empowered Secretary of Interior to appoint all local officials, give them
orders, overrule their decisions, and annul actions of provincial boards.
3. Officers of SPGAs (appointed by Commission) include Governor,
Secretary, Treasurer, Supervisor, Fiscal; as a board, they have the power
to enact ordinances and decisions re: public works.
4. Special Tax: SPGA imposed ala-Polo tax. Annual tax for males 18-60
years old, which can be paid by 10 days of manual labor on public works,
and can be performed personally or by a substitute.
 5. Reduccion, US-Style: Sec. 62 of the Township Government Act
provided for the resettling of natives near village centers.
a. Worcester: In order to deal with headhunters, vicious natives.
b. Cf. Rubi v. Provincial Board of Mindoro concerns the application
of a reenactment of this provision.
iii. Dean Worcester and the Northern Realm
1. Worcester had a special interest in Benguet for climate, mineral deposits.
He oversaw growth of Baguio as summer capital, while the SPGA obliged
Worcester to visit/inspect each special province”—he regularly visited
most but never Mindoro, Negros, or Panay.
2. Worcester established a two-track legal system for Cordilleras, consisting
of (1) Ifugao Law and (2) American Law.
a. Traditional Ifugao mediators (munalon) appointed as cabecillas
(similar to Spanish cabeza de barrio) who later became de facto
local judges, which blurred lines between 2 legal systems
b. The most common disputes involved land rights; Ifugao law was
used almost exclusively in adjudication.
c. Governors (“apos”) set themselves up as buffers between Ifugaos
and outsiders.
d. Buffer: Worcester’s primary rationale for distinct system of laws
3. Worcester advocated “protection” of NCT from Christians until their
“gradual familiarization with legal system prevented unfair advantage.”
a. Instead, the “protection” exacerbated ethnocentrism and
prejudice in the colonial regime.
b. Despite public intentions, Worcester’s policy concretized the legal
disenfranchisement of his self-appointed constituents; and
prompted policy-makers to overlook similar problems among
Hispanicized masses (e.g. undocumented land rights).
iv. Rubi, et al (manguianes) v. The Provincial Board of Mindoro (1919)
1. Antecedent facts: The Provincial Board of Mindoro passed Resolution No.
25, which is anchored on Sec. 2759 of the Administrative Code.
a. “Whereas, provincial governor is authorized, in the interest of
law and order, to direct non-Christian inhabitants to inhabit
unoccupied public lands to be selected by Board” (cf. Sec. 2759)
b. Resolution set aside 800 ha of public land on Naujan Lake to be
the permanent settlement of Mangyans.
c. Approved by Secretary of Interior
2. Rationale of the law and resolution: (1) protection of the Mangyans and
the public forest; (2) introduce them to civilized customs
3. In line with Res. No. 25, the governor issued E.O. No. 2, directing the
Mangyans to inhabit the relocation site, and imposing a 60-day
imprisonment for those who resist the order.
4. Manyans petition for habeas corpus, alleging that they are held on the
reservation established in Tigbao, Mindoro, against their will.
5. Court held, among others:
a. “Non-Christian” refers to natives of the Philippine Islands of a
low grade of civilization. The term relates to a degree of
civilization, and not a religious denomination.
b. To apply due process guarantee to people who do not have a
correct idea of liberty and do not practice it in the right way is to
sanction and defend an erroneous idea; it will leave government
without recourse to civilize them and make them useful citizens.
c. “[Mangyans] are restrained for their own good and the general
good of the Philippines.”
d. Legitimate exertion of police power, analogous to the Indian
Policy of the United States.
 d. Summary of immediate effects of “Pagan Realm” policies:
i. Creation of American-led colonial local governments that provided for a concrete
bureaucracy, all under the guise of democracy when, in reality, the natives were
largely disenfranchised: not only was a large portion of the population unable to
choose their leaders, but some suffered deprivation of other rights (e.g. land).
ii. Post-Worcester, Act No. 2406 was passed, ostensibly to promote the union of
Christians and non-Christians; however, it was obviously meant to take place on
terms established by Christian elites.
iii. The policies that supposedly meant to protect the NCT ended up worsening their
position in society, as not only did they remain marginalized, but they also lost
rights they actually held before (e.g. self-government over ancestral domain).
V. Policies for the Moro Province
a. The Political and Legal System of Mindanao
i. The colonial government put a different scheme in place for the NCT’s of
Mindanao and Sulu. During the earlier part of the Occupation, the area was
under the direct administration of the US Military.
ii. The “Indian analogy” applied more to Islamic groups due to the US military
campaign in Mindanao.
iii. 1899: Military District of Mindanao and Jolo;
1902: Department of Mindanao
1. Covered Mindanao, Sulu archipelago, Paragua (Palawan)
2. Two sub-districts, each headquartered in Cagayan de Oro (for migrant
Christian population) and Zamboanga.
iv. 1899 Bates Agreement: General Bates and Sultan of Sulu agree on the ff.
1. Sultan’s recognition of US sovereignty in exchange for monthly salaries
to Sultan/Tausug leaders and protection from European aggression.
2. Promise of due consideration to Moro laws/customs.
3. The arrangement was similar to the “subsidiary system” Britain
implemented in Malaysia and India.
4. [However, the Agreement was never ratified by US Senate; later, was
unilaterally abrogated by President T. Roosevelt]
v. 1903: Act. No. 787 was passed, creating the Moro Province, with the ff. features:
1. Under direct supervision of the Civil Governor
2. Territorial subdivisions were classified as either (1) Municipalities: high
population density, high “civilized” population; and (2) Tribal Wards: all
others, each ward comprised of a single ethnic group. This political
organization contributed to growth of Moro cultural sub-nationalism.
vi. The Moro Province had two unique features different from SPGAs:
1. Legislative Council, which had the power to tax, to decide on public
works, and to establish tribal courts.
2. US assumption that Moro Province possessed sufficient customary laws
a. From the assumption, the Legislative Council was empowered to
codify customary laws to govern civil and criminal affairs that
were different from the rest of the archipelago.
vii. Gov. Wood, however, opined that nothing has been found worthy of codification.
Hence, the Province eventually adopted the laws for the rest of the colony. This
authorized gov’t to ignore customary laws on land rights and inheritance.
viii. The Commission also provided for Tribal Ward Courts (equivalent of CFIs in
Hispanicized provinces), which had jurisdiction over criminal/civil actions in
which only indigenes were involved. However:
1. The justices were not lawyers, and were expressly allowed not to follow
technicalities and procedural rules.
2. Records of evidence were not required to be kept.
3. [These laxities opened the population to potential deprivations of due
process of law; furthermore, they reflect the US regime’s propensity to
dilute constitutional guarantees in Organic Act]
 b. The Disarmament Policy and the Battle of Bud Bagsak
i. 1911: Gen. Pershing passes Executive Order 24, the Disarmament Policy,
believing that it was vital to the peace and order of Mindanao.
1. The E.O. declared it to be unlawful for any person within the Moro
Province to “acquire, possess or have the custody” of any firearm, or to
“carry, concealed or otherwise on his person” any deadly cutting or
thrusting weapon (e.g. kris).
2. Moros were promised payment for all arms surrendered by Dec. 1911.
Many surrendered their weapons, but resistance was strong in Sulu,
where men identified the weapons with their manhood. As a result,
several tribes took up armed resistance.
ii. Late 1912: Moros of Lati Ward continued to oppose the policy; in retaliation, they
resumed raiding peaceful villages and attacking US troops.
1. Upon arrival of additional military forces, the Moros of Lati Ward—
between 6,000 to 10,000 persons—retired to Bud Bagsak.
2. The non-combatants in Lati Ward presented an appeal to humanity.
After negotiations, majority of the Moros gave up their arms and
returned to their village. However, a significant population remained in
Bud Bagsak and continued to resist the policy. Pershing decided to take
decisive action.
3. On June 11, 1913, five days of fierce fighting began, involving much
hand-to-hand combat. A few Moros escaped via underground tunnels, but
most did not surrender and died in the fight. The US casualties
numbered 14 killed and 13 wounded. The Moro casualties involved an
estimated 500 fighters.
c. Immediate effect of the policies of the Moro Province
i. The establishment of the Department of Mindanao laid the foundation for a
Filipino administrative machinery in the region, one which could not be set
during the Spanish regime.
ii. Muslim customary law (e.g. on marriage, on crimes) was not officially applied for
the remainder of the US occupation and even under the Third Republic, until the
passage of the Code of Muslim Personal Laws.
iii. With the non-recognition of customary law, land rights were also lost.
iv. The refusal to recognize the unique culture and identity of the Moros created
animosity between them and the Americans. After Bud Bagsak, resistance to the
American occupation became more muted, but when they left, the nationalist
movement in Mindanao came back with a vengeance.
VI. Conclusion: Present-day Implications
a. Control over land and resources
i. US policies on non-Christian tribes placed 20% of the population and 50% of the
national resource base under direct control of US officials; much of the resource
base is found in ancestral domains suddenly subsumed under US authority.
ii. The national government, which succeeded the US, continues to exercise control
over these resources and domains. Laws such as the IPRA have been passed to
restore the rights of the IPs, but have been successfully weakened by big money
b. Relationships between Christians and Muslims
i. The US occupation actually showed that Muslims and Christians could peacefully
co-exist, but also created a general distrust for the Manila-based government.
ii. The Muslims, however, have not forgotten the US policies that threatened the
survival of centuries-old custom, culture, and tradition.
iii. Until today, the Muslims in Mindanao continue to view the national government
as a “foreign government,” with much distrust. The armed cause in Mindanao is
both retributive and redemptive, especially with regard to the Moro ancestral
domain. Peace treaties and local autonomy laws have proven largely ineffective in
appeasing the Moros.
c. Relationships between Highlanders and Lowlanders: The Case of the Ifugaos
 i. No other IP has had a closer relationship to the Americans than the Ifugaos. The
US established many schools in the Cordilleras and resulted to the
Christianization of many of them.
ii. However, American policies that aimed to “civilize” the Ifugaos led the latter to be
embarrassed about their “old wisdom” and customs.
iii. The cultural treasure of the Ifugaos—and the other Christianized IPs—is under
threat, as many tribes begin to abandon their customs.
d. Overall, the IPs and the Moros continue to be marginalized in today’s Filipino society.
The US policy of homogenizing the Filipinos has stigmatized the unique identity of these
“non-Christian tribes.” A prevalent distrust prevents cooperation, peace, and progress.

Additional References:

Supreme Court Decisions

The Cherokee Nation v. The State of Georgia. US Supreme Court Reports Lawyer’s Ed. 8:25. (8 L. Ed. 25)
Rubi, et al v. The Provincial Board of Mindoro. Philippine Reports. 39:660 (39 Phil. 660)

Statutes
Act No. 1396: Special Provincial Government Act

Secondary Sources
Gowing, Peter. Mandate in Moroland: The American Government of Muslim Filipinos, 1899-1920. 1983:
Quezon City
Jenista, Frank. The White Apos: American Governors on the Cordillera Central. 1987: Quezon City