THE CARIÑO DOCTRINE: WHAT NOW?

Confusion in the
Courts: The Misinterpretation of Cariño
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Vol. 4, No. 4, Fourth Quarter 1999

By Dante B. Gatmaytan

Introduction

Repeated efforts have been made to point out that the Philippine legal system has long recognized that
indigenous peoples’ ownership rights over their ancestral domains. Cariño V. Insular Government, the
United States Supreme Court, exercising appellate jurisdiction over the Philippine courts, is a case in
point. It stated that lands held since time immemorial are private lands protected by the Bill of Rights.

This case has generated considerable discussion, but it has also been pointed out that Cariño and its
subsequent interpretation by courts in the Philippines and United States. It will show that the Cariño
decision haws been continuously misinterpreted in both jurisdictions.

Cariño is significant because the judicial recognition of indigenous peoples’ ownership of their ancestral
domains is uncommon. Ironically, the United States Supreme Court that decided Cariño has been less
than willing to recognize similar rights for the indigenous peoples’ of North America. Simply put, that Court
has held that neither the discovery of the New World under international law, nor the resulting English
colonial policy, requires the recognition of Indian title. The United States as a legatee of this policy was,
therefore, not bound to recognize any rights belonging to indigenous peoples. The judicial doctrines in the
United States have been explained as a result of racist attitudes that prevailed during the settlement of
the United States. Many accounts of the settlement were crafted as the triumph of a people over the
challenges of nature.

However, it was mostly a “violent, imperialistic process by which the West was wrested from its original
owners.” Scholars have traced this attitude to the medieval era when the crusading theory of practice of
the Church produced a highly refined legal tradition denying non-Christian peoples the rights of self-rule
and jurisdictional authority over the lands they occupied and the property they possessed. This cultural
racism was applied with the same force against any race of peoples, whose religion, civilization, or form
of culture, differed from Christian European norms. This legacy was brought to the New World by the
colonizers and used to support a set of legal privileges that discriminated against indigenous peoples and
denied them rights of self-rule because of their deviation from European standards.

The westward expansion of the United States did not stop with the adjacent states. By the end of the
nineteenth century, the United States has established itself not only as a sovereign nation worthy of
inclusion into the international community, but had also asserted itself as a world power. There was
agitation for greater glory beyond the territorial borders of the country, which echoed the same rhetoric
used to justify the conquest to the Native Americans. There were calls for continued westward progress of
the Caucasian race, “carrying civilization and blessing in its march.”

The stimulus in the United States was to push for the adoption of the expansionists’ platform. The Cuban
insurrection against Spain had become a central theme in the debates about whether the
United States should engage in overseas expansion. Inflammatory reports of Spanish atrocities
generated popular sympathy for insurgents, until a policy of non-intervention was disregarded, and war
with Spain was viewed as the sole remedy to the Cuban situation. To the delight of the expansionists, the
United Stated went to war against Spain. Senator Albert J. Beveridge further spurred his United Stated
went to war against Spain.

Senator Albert J. Beveridge further spurred his fellow Americans by reminding them that “we are
conquering race, and that we must obey our blood and occupy new markers and new lands. “He pointed
to the Philippines to the United States and delivered rounded by indigenous people who were never
subdued by the Spanish empire.

The indications were that United States law will be used to settle land disputes between non-

Christian indigenous peoples and the United States President McKinley’s Instructions to the second
Philippine Commission headed by William Howard Taft stated that:

In dealing with the uncivilized tribes of the Islands, the Commission should adopt the same course
followed by Congress in allowing the tribes of our North American Indians to maintain their tribal
organization and government, and under which many of these tribes are now living in peace and
contentment, surrounded by a civilization to which they are unable or willing to confirm. Such tribal
governments should, however, be subjected to wise and firm regulation; and without due and pretty
interference constant and active effort should be exercised without due and petty interference constant
and active effort should be exercised to prevent barbarous practices and introduce civilized customs.

The instructions were not surprising considering that the United States’ incursion into the Philippines
coincided with the use of reservations and the allotment of lands to control Indians. But when the issue of
ownership of ancestral domains in the Philippines was raised to the United States Supreme Court, the
issue was decided differently. In the next portion of their paper, we will outline the decision of the U.S.
Supreme Court in Cariño.

The facts of Cariño v. Insular Government were brief:

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 Paris, April 11, 1989 (30 Stat. At L., 1754), 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 efficient for the holding of cattle, according to the custom of the country, with 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 as a 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 1869-1879, he applied 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 sanitarium, etc., had been designated-a purpose 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, establishing only a possessory title, it said.
The issue according to Justice Holmes was whether the claimant, an Igorot, owned the land. The United
States government contented that Spain had title to all the lands in the Philippines, except so far as it saw
fit to permit private titles to be acquired. It maintained that no prescription can be claimed against Spanish
empire and even if that was possible, a decree in 1880 had set a deadline for the registration of these
titles. No title would be recognized as valid beyond that date. Since the land in question was not
registered, the government contended that it had become public (if it was already public). When the
United States succeeded to the title of Spain, Cariño had no right which it was bound to respect. The
Court disagreed with the United States in a decision that has remained as obscure as it is significant.

The Court admitted that Spain had embraced the universal feudal theory that all lands were held by the
Crown. However, Justice Holmes, who spoke for the Court, said that in practice sovereignty 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 Igorots were never brought under the control of the Spaniards. The Court quipped that it would be
almost certain that Spain would not have granted registration of the property that would not have made
title valid. Regardless of Spain’s position about technical subtleties, this did not mean that under the
dominion of the United States, Cariño had lost all his rights. He was not a mere trespasser when the
government succeeded as the new sovereign. A contrary position, would “amount to 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 Court explained that the cases involving the land claims of Native Americans were inapplicable in this
situation because 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. Evidently, however stated, the reason
for our taking over the Philippines was different. No one, we suppose would deny that, so far 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… all the
property and rights acquired there by the United States are to be administered “for the benefit of the
inhabitants thereof.”

In the Court’s view, the United States had bound itself to administer the islands for the benefit of the
inhabitants, and not to exploit it for profit. However, the decision did not stop there. It pointed out that the
Philippine Bill of 1902 included a Bill of rights that extended those safeguards to all the inhabitants of the
Philippines. The Court found it hard to believe that the United States interpreted the due process clause
not to apply to the inhabitants of Benguet. The “property” under the organic act protected “only that which
had become such by ceremonies of which presumably a large part of the inhabitants never 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.”

While the government of the Philippines was empowered to enact rules for perfecting titles to public lands
and to issue patents to natives, the Court held that this power was confined to lands which were
admittedly public. It “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.” The Court refused to believe that there was
an intent to declare every native who had not a paper title a trespasser. This set the claims of all the
wilder tribes afloat. The Court further held that there must be a presumption against the government when
a private individual claims property as his or her own. It went so far as to say that the lands will be
deemed private absent contrary proof. In what is probably the most potent statement ever made on this
subject by any Court, it held:

Whatever the law upon these points may be…every presumption is and ought to be against the
government in a case like the present. It might 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 even before Spanish conquest, and never to have
been public land.

The Court proceeded to explain that the case would have been similarly resolved had the case tried by
the laws of Spain. After examining the pertinent laws, the Court held that We do not discover such clear
proof that it was bad by that [Spanish] 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 suggest pretty clearly that
the natives were recognized as owing 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 tenants at
will.

The Court pointed out that the Recopilacion de Leyes de Las Indias (that body of edicts, decrees and
orders that set out Spain’s laws for her colonies) allowed confirmation of title through prescription, and
that title was admitted to exist that owed nothing to the power of Spain beyond this recognition in their
books. The Court further explained that Spanish law was not that stringent in requiring proof, ancient
possession being sufficient.

“As prescription, even against Crown lands, was recognized by the laws of Spain, we see no sufficient
reason for hesitating to admit the title was recognized in the Philippines in regard to lands over which
Spain had only a paper sovereignty.”

Clearly, the reference to Spanish law was inconsequential. Justice Holmes discussed the issue only to
clarify that Cariño’s claim would have also prevailed, (this time under prescription) had the Court resorted
to Spanish laws. This part of the discussion was surplusage because the lands claimed by Cariño were
already held to be private.

In concluding, Holmes wrote 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.”

In the following portion of the paper, we analyze the Court’s decision.

Cariño did not rely on precedent. Justice Holmes said that whatever theories justified claims over
“discovered” lands, the truth was that conquerors were never able to see, much less secure most of these
areas. The fact that the Igorots had never been assimilated or defeated by the Spaniards must surely
have been a substantial consideration. The court said that title will not be extinguished simply because a
territory is occupied by an alien force.
Holmes’s language stripped the veneer of nobility that has often been used to justify the dispossession of
the Native Americans. The experience in America was exposed as nothing more than an ignoble,
colossal capitalist venture meant to take lands at the Indians’ expense. Cariño made no explicit reference
here to either superior culture or religion.

The Court then noted the second obstacles to the United States’ claim: the United States had not
asserted a claim over the entire country. When Congress enacted the Philippine bill of 1902, it extended
the Bill of Rights to the territory. The United States had stretched its protection, particularly the due
process clause, to all the inhabitants of the Philippines. Ata this point, the Court had already
characterized the ancestral domain of the Igorots (and by extension, those of other native peoples) as
private. It should be noted that the property here was private not because of recognition of title by any
sovereign. This was the result of the Igorots’ “custom and long association” and “practice and belief.”

The Court also mocked Spain’s claims over the entire territory of the Philippines. Such claims could not
defeat the claim of Cariño based on laws that Spain had not the power to enforce, or Cariño, living as he
did with his unconquered folk, had no reason to heed. The resolution of the case was guided more by the
Court’s determination to do justice rather than to apply obscure laws. This explains Holmes’ refusal to rely
upon established doctrines and his liberal interpretation of the Philippine Bill. No weight was ever placed
upon theories of conquest or alien laws that could not have been known to or understood by a people so
removed from the potentates’ game of global takeover. Thus, unlike in North America, the Court refused
to deprive the Indian of his rights by resorting to the laws of nations within the exclusive sphere of a mere
handful of nations. It would not construe laws to deny the Igorots’ claim, and the executive and legislative
acts in any way that “would amount to a denial of native titles.”

It might be suggested that there is a difference between the claims in Cariño and those of the North
American Indians because the former involved the assertion of an individual’s private right consistent with
western property schemes against those asserted by an entire community. But there is no evidence of
this difference in Holmes’ language.

Neither can the differences in the result can be justified on the ground that the Court viewed the claimants
as a “civilized” westernized people. The claimants in Cariño were also considered inferior peoples, if
subtly. The court made conscious efforts to waive technicalities because the claimants were Igorots, and
were referred to as “’wilder tribes.’”

But while they were, from the western legal perspective, considered savage and uncivilized, the Court still
found it unfair to refuse recognition of their title.

Cariño has been consistently upheld by the Philippine Supreme Court. And while it originally involved the
claim of an individual “under a claim of private ownership” the Philippine Supreme Court later expanded
the doctrine to include lands held by a community, and lands that are “unoccupied and unimproved.”
Unfortunately, some confusion has attended the application of doctrine.Cariño has been cited as authority
for the Public Land Act which allows registration of public lands as private possession if the claimant has
been in open, continuous, exclusive and notorious possession of the said lands for thirty years. The error
is obvious. Cariño involved lands which had never been public. The prescriptive remedy under the Public
Land Act admits that the land was initially public. However, it becomes private (and therefore may be
titled) after the lapse of the prescriptive period.
Confusion in the Court had surfaced as early as 1931 in De Palas v. Saito and Madrazo. In that case, the
Supreme Court held that the sale of property made by a member of the Bagobo tribe without the approval
of the Director of the Non-Christian tribes was null and void. While the Bagobos retained their land, the
decision showed the Court was confused about its character. Justice Johnson in the lone dissent
explained that: There is absolutely no analogy between the relations of the non-Christian people of the
Philippine Islands to the Philippine Government as compared with the relation of the American Indians to
the American government.

A citizen of the Philippine Islands, whether non-Christian or Christian, has a perfect right to dispose of his
private property freely without the necessity of securing the consent of any person of the
Government…Hundreds and thousands of the non-Christian people of the Philippine Islands have,
through their industry and intelligence, become the absolute owners of private property… (Cariño vs.
Insular Government, 7 Phil. 132; Cariño vs. Insular Government, 212 U.S. 449; 53 Law.Ed. 549; 41 Phil.,
935).

In the United States the government distributed lands freely to the American Indians and the dispose of
the same without the consent of the Secretary of the Interior. The Government, having given the Indian
his land without cost, it had a perfect right to impose such condition upon the disposition of the same as
the Government might deem wise. In the Philippine Islands, however, the non-Christian people have
never been given land by the government. They are therefore under no obligation to the Government
concerning the land they acquire.

Admittedly, the dissent’s interpretation of the jurisprudence on Native American land rights leaves much
to be desired. However, its use of the Cariño doctrine was faithful to Holmes’ dictum. Because of this
confusion, there are presently two streams of cases in the Philippines, both as prominent, as they are
glaringly contradictory. In one line, lands held since time immemorial are recognized as private. It has
even been held that subsequent reclassification of land cannot impair the rights of long-term occupants.
In the other line, public agricultural lands become private lands and could therefore be titled. This is if the
claimant can show that there has been continuous possession thereof for at least thirty years. Cariño has
been cited as authority for both. A recent case cited both lines of cases without the Court observing any
incongruity.

Some earlier cases did manage to make a distinction between the two claims. In these cases, the Court
would first check if the land is private under the Cariño doctrine, and then examine if it has become
private under the Public Land Act. While the Cariño doctrine may be in jurisprudential limbo, the case
does surface periodically in the discussions of the other branches of government.

Courts in the United States had several occasions to apply the Cariño decision. As will be shown,
however, these courts had, for the most part, also misinterpreted the doctrine. These cases may be
divided into those that involved lands in its territories, and those involving claims within the continental
United States.

In the Territories

The first claims involved lands in Mexico. In Pueblo de Sta. Rosa v. Fall, the claimants filed a bill in equity
in the Supreme Court in the District of Columbia to restrain the Secretary of the Interior and the
Commissioner of the General Land Office from opening its lands to sale, entry, and settlement as public
lands of the United States. The plaintiffs alleged that the lands were granted and conceded to the pueblo
of Sta. Rosa by the laws and customs of the Indians, antedating the Spanish discovery of America and
the laws of Spain and Mexico. The lands were part of the territory ceded by Mexico to United States
under the Gadsden Treaty.

In resolving the issue, the Court explained that the title of the Indian inhabitants of a pueblo in Mexico has
been recognized not only by the Mexican, but also by Spanish laws. Such recognition rests not upon title
by grant or charter from the crown, but it may be established and was frequently established by
prescription. It cited Cariño to stress that prescription against the Crown was recognized by Spanish laws.
It said, “[t]here can be no question, we think that prior to the cession under the Gadsden Treaty the
Papago Indians had acquired a title which was subject to recognition by the government of Mexico.” It
concluded that, had the record title been established in Mexico to which this pueblo was clearly entitled, it
could not be divested by the sort of evidence adduced in this case. This would have been the proper case
to cite Cariño because the claim was premised upon the laws and customs of Indians that antedated the
Spanish discovery of America. The land was ceded by Spain to the United States. No grant was relied
upon, and there was an assertion that both Spanish and Mexican laws relied upon, and there was an
assertion that both Spanish and Mexican laws recognized such Indian title. Unfortunately, the court’s
reliance upon Cariño was merely to recognize the right of the claimant through prescription, and not to
reaffirm the rule that lands held since time-immemorial are private lands.

The second case came some twenty years later. Playa de Flor Land and Improvement CO. v. United
States involved lands in Panama. The complainants, an unincorporated association, alleged that they had
acquired title and rights of ownership to specific real property based on prescription under the name of
Playa del Flor Land and Improvement Co., their predecessors in interest, and those who had been and
were in the actual, open, notorious, and adverse possession, use, and cultivation of the lands for more
than forty years before the Treaty between the United States and the Republic of Panama. They also
alleged that they were forcibly and unlawfully evicted and dispossessed of the lands and improvements
by the United States and that the joint owners had not been paid for the property taken from them.

The Court held that all of the collective facts necessary to prove adverse possession are shown in the
record; there was actual possession; it was open, notorious, and visible; it was selfish and exclusive; it
was hostile, even against the whole world, and it was a definite possession marked by the descriptions in
documentary evidence, which were of color of title. The Court summarized the rulings of “similar and
analogous” cases regarding the validity of land titles acquired under a former sovereign. It also
cited Cariño, quoting that statement that recognized the private nature of lands held since time
immemorial.

The Court touched upon the most important part of the decision stating that “[t]he principles announced
[in these cases] are plain, simple, and easily understood. They are grounded on common honesty, right
and justice, and they had received the approval of the executive and legislative branches of the
government for more than a hundred years.” The Court understood the theme of the decision, and
associated the ownership of land to the concept of human rights. It said:
Since we are so freely expressing our opinions to all questions herein, we might suggest that, despite all
the argument undertaking to distinguish property rights and human rights, there never was a country and
never will there be a country where, if property rights are ignored, human rights will be respected.

The decision followed the reasoning of the Holmes decisions. It anticipated, and sought to prevent the
present situation in many countries where the refusal to recognize native title had crushed the essence of
Indian identity. While technically, the case did not involve Indian lands,

the jurisprudence cited to support the court’s conclusion did.

Finally, the United States Supreme Court itself cited Cariño approvingly in United States v. Fullard-
Leo. That case was an action to quiet title to the Palmyra Island in Hawaii. AT the time of the annexation
of the Island by the Kingdom of Hawaii in 1862, the monarchy possessed a system of land ownership and
land laws adequate to establish titles which were maintained by a proper record.

The facts of this case were clearly inconsistent with those in Cariño. The claimants in this case were
alleging the issuance of a grant they were unable to produce. Predictably, therefore, the Court turned to
the doctrine of the presumption of a lost grant. The Court explained the doctrine thus: …it may be safely
said that by the weight of authority, as well as the preponderance of opinion, it is the general rule of
American law that a grant will be presumed upon proof of an adverse, exclusive, and uninterrupted
possession for 20 years, and that such rule will be applied as a presumption juris et de jure, wherever, by
possibility, aright may be acquired in any manner known to the law. See United States v. Pendell, 185
U.S. 189, 200-201, 22 S. Ct. 624, 628, 629, 46 L. Ed. 866.

The Court quoted Cariño saying that land held by individuals under a claim of private ownership since
time immemorial are presumed to be private. There was never an intimation that the title of Cariño was
founded on a grant. He had attempted to secure a grant but his efforts had not amounted to anything.
This was not the case in Fullard.

The use of in Cariño these cases was not always proper. Pueblo was tailor-made for the doctrine.
Unfortunately, it used the doctrine to uphold a prescriptive right, something for which was Cariño never
designed to be authority. Playa relied on the Cariño decision to state that title will not be denied for failure
of the claimant to produce title. If nothing else, it seemed to find support in natural law, a position not
previously unexplored by the United States Supreme Court. Fullard-Leo was not analogous to Cariño.
The claimant in that case had relied upon a previous grant destroyed in a fire. Cariño was never given
title by the Spanish government, although it was not for want of trying.

In the United States There have been two attempts to cite in Cariño cases involving Native Americans.
Both efforts, however, failed. In 1995, Tee-Hit-Ton Indians cited the case to bolter their claim that the U.S.
government’s taking of timber from Indian-occupied lands was compensable. The Supreme Court,
however, not only distinguished Cariño from the Alaskan controversy, but also attempted to belittle it. The
Court stated that it is well-settled that in all the States of the Union the tribes who inhabited the islands of
the States held claim to such lands after the coming of the white man, “under what is sometimes termed
original Indian title or permission from the whites to occupy.” The Court explained that that meant “mere
possession not specially recognized as ownership by Congress.”
The Court explained that: [a]fter conquest they were permitted to occupy portions of the territory over
which they had previously exercised “sovereignty” as we use that term. This is not a property right but
amounts to a right of occupancy that the sovereign grants and protects against intrusion by third parties
where right of occupancy may be terminated and such lands fully disposed of by the sovereign itself
without legally enforceable obligation to compensate the Indians.

In a footnote, the Court dismissed the applicability of the Cariño doctrine: The basis of the Court’s
decision [in Cariño] however, distinguishes it from applicability to the Tee-Hit-Ton claim. The court chiefly
upon the purpose of our acquisition of the Philippines as revealed by the Organic Act of July 1, 1902,
which was to administer property and rights “for the benefit of the inhabitants thereof”… This purpose in
acquisition and its effect on land held by the natives was distinguished from the settlement of the white
race in the United States where “the dominant purpose was to occupy the land.” 212 U.S., at page 458,
29 S. Ct. at page 336. The Court further found that the Spanish law and exercise of Spanish sovereignty
over the islands tended to support rather than defeat a prescriptive right. Since this was no communal
claim to a vast uncultivated area, it was natural to apply the law of prescription rather than a rule of
sovereign ownership of dominion. Cariño claim was to a 370-acre farm that his grandfather had fenced
some fifty years before and was used by three generations as a pasture for livestock and some cultivation
of vegetable and grain. The case bears closer analogy to the ordinary prescriptive rights situation rather
than to a recognition by this court of any aboriginal use and possession amounting to fee simple
ownership.

The second attempt by Alaskan tribes to use Cariño also failed. In , Aleut Community of St. Paul Island v.
United States the Indians claimed that under Russian Law, they had a right to an accounting of funds
allegedly misspent. The United States had failed in its obligation to deal with the tribe in fairness and
honor. The Indian Claims Commission dismissed the claim on the government’s motion, and the plaintiffs
appealed.

The Court of Claims held that the Indians’ title was no more than aboriginal in nature and did not have
attributes of fee simple title. Again, the reference to Cariño was dismissed because in that case, the
Supreme Court found fee simple title of certain land had been established by the plaintiff via prescription.
Said the Court:

The case is of little aid to appellants at bar, however, because the Court in Cariño held that the plaintiff
there had met the requirements of prescription as set out in the Spanish Civil Code, and that under the
circumstances of the American occupation of the Philippines that title had to be protected. As pointed out
above, the appellants at bar have failed to prove that they achieved the undisturbed possession
necessary under Russian law to obtain title by prescription. Without a showing that they had obtained title
by prescription under Russian law, appellants have no grounds upon which to ask that appellee respect
their “proprietary rights.”

Further, the Court Held that, The title, if any of Aleutian natives to St. Paul’s Island, or other islands
involved in this proceeding, was no more than aboriginal in nature and did not have the attributes of fee
simple title, at the time of the Treaty of Cession. No recognition of such title by our government, then or
later, is shown, and therefore no acts or our Government can be construed as taking such title. Since it is
related to aboriginal title claims, it follows that appellants have not shown reversible error as to just
compensation portion of their petitions.

These decisions failed to appreciate the significance of Cariño. Both decisions were written with the
understanding that the recognition of title in Cariño was based upon prescription against the crown. As
pointed out, however, it was more in consonance with the idea of fairness that the Supreme Court ruled
in Cariño favor.

Cariño was decided in favor of the claimant not only because of the explicit provision in the Philippine Bill
of 1902 directing the United States government to administer the Philippines for the benefit of its
inhabitants. The underlying theme in the entire decision is the inherent fairness in recognizing the title of
indigenous peoples against the claims of a succeeding sovereign. Justice Holmes rejected the position
that both Spain and the United States had title to all lands in their territories as they had in the American
continents simply by asserting sovereignty, and without actual occupation of these lands.

Unfortunately, neither the Supreme Courts of the Philippines and the United States properly appreciate
the doctrines of the case. With few exceptions, subsequent cases in both countries have misapplied the
case as authority for a prescriptive right against the government.

At the very least, Cariño has not been overruled in either country. It would be inconceivable to do so in
the Philippines where the recognition of native title was held to be protected by the due process clause.
The Bill of Rights that was initially introduced through the Philippine Bill of 1902 has remained intact in all
the Constitutions of the Republic of the Philippines. A reversal of the Cariño doctrine can only be done as
an express repudiation of the equal status of indigenous peoples. (Reprinted from Philippine Natural
Resources Law Journal, Volume 7 Number 2)

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 2869 March 25, 1907

MATEO CARIÑO, petitioner-appellant,

vs.
THE INSULAR GOVERNMENT, respondent-appellee.

Coudert Brothers for appellant.

Office of the Solicitor-General Araneta for appellee.

ARELLANO, C.J.:

Mateo Cariño, the appellant herein, on the 23d of February, 1904, filed his petition in the Court of
Land Registration praying that there be granted to him title to a parcel of land consisting of 40
hectares, 1 are, and 13 centares, and situated in the town of Baguio, Province of Benguet, together
with a house erected thereon and constructed of wood and roofed with rimo, and bounded as
follows: On the north, in lines running 1,048 metes and 20 decimeters with the lands of Sepa Cariño,
H. Phelps Whitmarsh, and Calsi; on the east, in lines running 991 meters and 50 decimeters with the
land of Kuidno, Esteban Gonzales, and of the Civil Government; on the south, in lines of 115 meters
and 60 decimeters, with the lands of Talaca; and on the west, in lines running 982 meters and 20
decimeters, with the lands of Sisco Cariño and Mayengmeng.

By order of the court the hearing of this petition, No. 561, and that of Antonio Rebollo and Vicente
Valpiedad filed under No. 834, were heard together for the reason that the latter petition claimed a
small portion of land included in the parcel set out in the former petition.

The Insular Government opposed the granting of these petitions, alleging that the whole parcel of
land is public property of the Government and that the same was never acquired in any manner or
through any title of egresion from the State.

After trial, and the hearing of documentary and oral proof, the court of Land Registration rendered its
judgment in these terms:

Therefore the court finds that Cariño and his predecessors have not possessed exclusively
and adversely any part of the said property prior to the date on which Cariño constructed the
house now there — that is to say, for the years 1897 and 1898, and Cariño held possession
for some years afterwards of but a part of the property to which he claims title. Both petitions
are dismissed and the property in question is adjudged to be public land. (Bill of exceptions,
p. 15.)

The conclusions arrived at the set forth in definite terms in the decision of the court below are the
following:

From the testimony given by Cariño as well as from that of several of the witnesses for the
Government it is deduced, that in or about the year 1884 Cariño erected and utilized as a
domicile a house on the property situated to the north of that property now in question,
property which, according to the plan attached to expediente No. 561, appears to be property
belonging to Donaldson Sim; that during the year 1893 Cariño sold said house to one
Cristobal Ramos, who in turn sold the same to Donaldson Sim, moving to and living on the
adjoining property, which appears on the plan aforesaid to be the property of H. Phelps
Whitmarsh, a place where the father and the grandfather of his wife, that is to say, Ortega
and Minse, had lived . . ..

In or about the years 1898 Cariño abandoned the property of Whitmarsh and located on the
property described in the plan attached to expediente No. 561, having constructed a house
thereon in which he now lives, and which house is situated in the center of the property, as is
indicated on the plan; and since which time he has undoubtedly occupied some portion of
the property now claimed by him. (Bill of exceptions, pp. 11 and 12.)

1. Therefore it is evident that this court can not decree the registration of all of the superficial
extension of the land described in the petition and as appears on the plan filed herein, such
extension containing 40 hectares, 1 are, and 13 centares, inasmuch as the documentary evidence
accompanying the petition is conclusive proof against the petitioners; this documentary proof
consists of a possessory information under date of March 7, 1901, and registered on the 11th day of
the same month and year; and, according to such possessory information, the land therein
described contains an extension of only 28 hectares limited by "the country road to the barrio of
Pias," a road appearing on the plan now presented and cutting the land, as might be said, in half, or
running through its center from north to south, a considerable extension of land remaining on the
other side of the said road, the west side, and which could not have been included in the possessory
information mentioned.

2. As has been shown during the trial of this case, this land, of which mention is made in said
possessory information, and upon which is situated the house now actually occupied by the
petitioner, all of which is set forth as argument as to the possession in the judgment, is "used for
pasture and sowing," and belongs to the class called public lands.

3. Under the express provisions of law, a parcel of land, being of common origin, presumptively
belonged to the State during its sovereignty, and, in order to perfect the legitimate acquisition of
such land by private persons, it was necessary that the possession of the same pass from the State.
And there is no evidence or proof of title of egresion of this land from the domain of the Spanish
Government, nor is there any possessory information equivalent to title by composicion or under
agreement. 4, The possessory information filed herein is not the title to property authorized in
substitution for that of adjustment by the royal decree of February 13, 1894, this being the last law or
legal disposition of the former sovereignty applicable to the present subject-matter of common lands:
First, for the reason that the land referred to herein is not covered nor does it come within any one of
the three conditions required by article 19 of the said royal decree, to wit, that the land has been in
an uninterrupted state of cultivation during a period of six years last past; or that the same has been
possessed without interruption during a period of twelve years and has been in a state of cultivation
up to the date of the information and during the three years immediately preceding such information;
or that such land had been possessed openly without interruption during a period of thirty or more
years, notwithstanding the land had not been cultivated; nor is it necessary to refer to the testimony
given by the two witnesses to the possessory information for the following reason: Second, because
the possessory information authorized by said royal decree or last legal disposition of the Spanish
Government, as title or for the purpose of acquiring actual proprietary right, equivalent to that of
adjustment with the Spanish Government and required and necessary at all times until the
publication of said royal decree was limited in time to one year, in accordance with article 21, which
is as follows: " A period of one year, not to be extended, is allowed to verify the possessory
informations which are referred to in articles 19 and 20. After the expiration of this period of the right
of the cultivators and persons in possession to obtain gratuitous title thereto lapses and the land
together with full possession reverts to the state, or, as the case may be, to the community, and the
said possessors and cultivators or their assigns would simply have rights under universal or general
title of average in the event that the land is sold within a period of five years immediately following
the cancellation. The possessors not included under this chapter can only acquire by time the
ownership and title to unappropriated or royal lands in accordance with common law."

5. In accordance with the preceding provisions, the right that remained to Cariño, if it be certain that
he was the true possessor of the land in question, was the right of average in case the Government
or State could have sold the same within the period of five years immediately following for example,
if the denouncement of purchase had been carried out by Felipe Zafra or any other person, as
appears from the record of the trial of the case. Aside from this right, in such event, his possession
as attested in the possessory information herein could not, in accordance with common law, go to
show any right of ownership until after the expiration of twenty years from the expiration of twenty
years from the verification and registry of the same in conformity with the provisions of article 393 of
the Mortgage Law and other conditions prescribe by this law.

6. The right of possession in accordance with common law — that is to say, civil law — remains at
all times subordinate to the Spanish administrative law, inasmuch as it could only be of force when
pertaining to royal transferable or alienable lands, which condition and the determination thereof is
reversed to the government, which classified and designated the royal alienable lands for the
purpose of distinguishing them from those lands strictly public, and from forestry lands which could
at no time pass to private ownership nor be acquired through time even after the said royal decree of
February 13, 1894.

7. The advent of the new sovereignty necessarily brought a new method of dealing with lands and
particularly as to the classification and manner of transfer and acquisition of royal or common lands
then appropriated, which were thenceforth merely called public lands, the alienation of which was
reserved to the Government, in accordance with section 12 and 13 of the act of Congress of July 1,
1902,1 and in conformity with other laws enacted under this act of Congress by the Philippine
Commission prescribing rules for the execution thereof, one of which is Act No. 648,2 herein
mentioned by the petitioner, in connection with Act No. 627,3 which appears to be the law upon
which the petition herein is founded.

8. Section 6 of Act No. 627 admits prescription, in accordance with the provisions contained in Act
No. 190, as a basis for obtaining the right of ownership. "The petitioners claims title under the period
of prescription of ten years established by that act, as well as by reason of his occupancy and use
thereof from time immemorial." (Allegation 1.) But said act admits such prescription for the purpose
of obtaining title and ownership to lands "not exceeding more that sixteen hectares in extent." (Sec.
6 of said act.) The land claimed by Cariño is 40 hectares in extent, if we take into consideration his
petition, or an extension of 28 hectares, according to the possessory information, the only thing that
can be considered. Therefore, it follows that the judgment denying the petition herein and now
appealed from was strictly in accordance with the law invoked herein.

9. And of the 28 hectares of land as set out in the possessory information, one part of same,
according to the testimony of Cariño, belongs to Vicente Valpiedad, the extent of which is not
determined. From all of which it follows that the precise extent has not been determined in the trial of
this case on which judgment might be based in the event that the judgment and title be declared in
favor of the petitioner, Mateo Cariño. And we should not lose sight of the fact that, considering the
intention of Congress in granting ownership and title to 16 hectares, that Mateo Cariño and his
children have already exceeded such amount in various acquirements of lands, all of which is shown
in different cases decided by the said Court of Land Registration, donations or gifts of land that could
only have been made efficacious as to the conveyance thereof with the assistance of these new
laws.

By reason of the findings set forth it is clearly seen that the court below did not err:

1. In finding that Mateo Cariño and those from whom he claims his right had not possessed
and claimed as owners the lands in question since time immemorial;

2. In finding that the land in question did not belong to the petitioner, but that, on the
contrary, it was the property of the Government. (Allegation 21.)

Wherefore, the judgment appealed from is affirmed with the costs of this instance against the
appellant. After the expiration of twenty days from the notification of this decision let judgment be
entered in accordance herewith, and ten days thereafter let the case be remanded to the court from
whence it came for proper action. So ordered.

Torres, Mapa, Willard, and Tracey, JJ., concur.

Johnson, J., reserves his vote.

G.R. No. L-2746 December 6, 1906

MATEO CARIÑO,Petitioner-Appellant, vs. THE INSULAR GOVERNMENT,Respondent-Appellee.

Coudert Brothers for appellant.

Attorney-General Wilfley for appellee.

-->

WILLARD, J.:

The appellant, on the 23d of June, 1903, by his attorney in fact, Metcalf A. Clarke, filed a petition in the
Court of Land Registration asking that he be inscribed as the owner of a tract of land in the municipality
of Baguio, in the province of Benguet, containing 146 hectares. The Government of the Philippine
Islands, appeared in the Court of Land Registration and opposed the petition. The Government of the
United States that the land was part of the military reservation of Baguio. Judgment was entered in the
Court of Land Registration in favor of the petitioner, from which judgment the respondents appealed in
accordance with the law then in force to the Court of First Instance of the province of Benguet. The case
was therein tried de novo, and judgment was entered dismissing the petition. The petitioner has
brought the case here by bill of exceptions.chanroblesvirtualawlibrary chanrobles virtual law library

The petitioner presented no documentary evidence of title, except a possessory information obtained in
1901. By the provisions of the Mortgage Law, under which this possessory information was obtained
(art. 394), it produced only those effects which the laws give to mere
possession.chanroblesvirtualawlibrary chanrobles virtual law library

The petition not having shown any title from the Government, and the land being agricultural, the case
is governed by the decisions of this court in the cases of Valenton et al. vs. Murciano 1 (2 Off. Gaz., 434);
Cansino et al. vs. Valdez et al. 2 (4 Off. Gaz., 488); and Tiglao vs. The Insular Government 3 (4 Off. Gaz.,
747). In these cases it was held that the mere possession of land such as that in controversy in this case
would give the possessor and title thereto as against the Government; in other words, that the statute
of limitations did not run against the State in reference to its agricultural lands

The petitioner, however, insists that although the statute of limitations as such did not run against the
Government of Spain in the Philippine Islands, yet a grant is to be conclusively presumed from
immemorial use and occupation. To say that the presumption of a grant is presumption of law is, in our
opinion, simply to say that it amounts to a statute of limitations; and for a court to hold that the statute
of limitations does not run against the Government as to its public agricultural lands, and at the same
time to hold that if a person has been in possession of such lands for thirty years it is conclusively
presumed that the Government has given him a deed therefor, would be to make two rulings directly
inconsistent with each other.chanroblesvirtualawlibrary chanrobles virtual law library

Considered as a presumption of fact, the contention could not be sustained in this particular case. Here
the surrounding circumstances are incompatible with the existence of a grant, It is known that for nearly
three hundred years all attempts to convert the Igorots of the Province of Benguet to the Christian
religion completely failed, and that during that time they remained practically in the same condition as
they were when the Islands were first occupied by the Spaniards. To presume as a matter of fact that
during that time, and down to at least 1880, the provisions of the laws relating to the grant, adjustment,
and sale of public were taken advantage of by these deeds from the Government for these lands would
be to presume something which did not exist. The appellant says in his brief (p.10):

The Igorot, no less than the American Indian, is an aborigine, and is equally ignorant of the forms of law
and procedure necessary to protect his interests.

There is, moreover, in the case evidence that in 1894 the petitioner sought to obtain title from the
Government in accordance with the laws then in force. In 1901 he made a contract with Metalcalf A.
Clarke, by the terms of which he agreed to sell the land to Clarke for 6,000 pesos when he obtained title
thereto from the Government, and this contract he does not say that he is the owner, but simply that he
is in possession thereof. The court below found that the land is now worth upwards of
P50,000.chanroblesvirtualawlibrary chanrobles virtual law library

The possession of the land has not been of such a character as to require the presumption of a grant. No
one has lived upon it for many years. It was never used for anything but pasturage of animals, except
insignificant portions thereof, and since the insurrection against Spain it has apparently not been used
by the petitioner for any purpose.chanroblesvirtualawlibrary chanrobles virtual law library

The petitioner relies upon the case of the United States vs. Chaves (159 U.S., 452) and the case of The
United States vs. Chaves (175 U.S., 509). In the case of Hays vs. The United States (175 U.S. 248) the
court said at page 261;

But this presumption is subject to the limitation that where title is claimed from a deed which is shown
to be void, it will not be presumed that there was an independent grant (Smith vs. Highbee, 12
Vermont,. 113), or where surrounding circumstances are inconsistent with the theory of a grant.
(Townsend vs. Downer, 32 Vermont, 183).chanroblesvirtualawlibrary chanrobles virtual law library

The substance of this doctrine is that lapse of time any be treated as helping out the presumption of a
grant, but where a void grant is shown, it affords no presumption that another valid grant was made.
Nor does such presumption arise if the surrounding circumstances are incompatible with the existence
of a grant. In this case under consideration we can not find any evidence which justifies us in believing
that a legal grant can have been made, and under those circumstances we can not consider possession
since the date of the treaty as dispensing with the requirement that the title, if not perfect at that time,
was one which the claimant would have a lawful right to make perfect had the territory not been
acquired by the United States.

In the case of Chaves vs. The United States (175 U.S., 552) the court made the following statement at
page 562:

Finally, it distinctly appears that the possession of the parties is insufficient in length of time to prove a
valid title. In United States vs. Chaves (159 U.S., 452) the possession was under the claim of a grant
made by the governor of New Mexico to the alleged grantees. The grant had been lost, but it had been
seen and read by witnesses, and its existence had been proved by evidence sufficient, as we stated in
the opinion (p. 460), to warrant 'the finding of the court below that the complainant's title was derived
from the Republic of Mexico, and was complete and perfect at the date when the United States
acquired sovereignty in the territory of New Mexico, within which the land was situated. We do not
question the correctness to the remarks made by Mr. Justice Shiras in regard to evidence of possession
and the presumptions which may under certain circumstances drawn as to the existence of a
grant.chanroblesvirtualawlibrary chanrobles virtual law library

We do not deny the right of the duty of a court to presume its existence in a proper case, in order to
quiet a title and to give to long continued possession the quality of a rightful possession under a legal
right. We recognized and enforced such a rule in the case of United States vs. Chaves decided at this
term. in which the question is involved. We simply say in this case that the possession was not a
duration long enough to justify any such inference.chanroblesvirtualawlibrary chanrobles virtual law
library

There is no proof of any valid grant, but on the contrary the evidence offered by the plaintiff himself and
upon which the bases the title that he asks the court to confirm, shows the existence of a grant from a
body which had no legal power to make it, and which, therefore, conveyed no title whatever to its
grantee, and the evidence is, as given by the plaintiff himself, that it was under this grant alone that
possession of the lands was taken. We can not presume (within the time involved in this case) that any
other and valid grant was ever made. The possession of the plaintiff and of his grantors up to the time of
the treaty of Guadalupe Hidalgo, in 1848, had not been long enough to presume a grant. (Crispin vs.
United States, 168 U.S., 208; Hayes vs. United States, 170 U.S., 637, 649, 653; Hays vs. The United States,
ante 248.) The possession subsequently existing, we can not notice. Same authorities.

As we understand it, it is well settled in the United States that prescription does not run against the
Government as to its public lands - in other words, that if a person desires to obtain title to the public
lands of the United States situated within the boundaries of the States, he must do so in the way
pointed out by the law. We do not understand that a person in possession of unsurveyed public lands in
the State of Minnesota, for example, whose ancestors had occupied that the land for fortyh years, could
maintain in court a claim that he was the legal owner of the lands by granted the land to his ancestors, a
presumption founded not upon any proceedings taken in the General Land Office to acquire a patent
thereto, but upon the mere possession for that length of time.chanroblesvirtualawlibrary chanrobles
virtual law library

The same is true of the public lands of Spain in the Philippine Islands. In the case of Valenton et al. vs.
Marciano it was said:

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 the State remained the absolute
owner.
But in any event, and whatever the law may be elsewhere, it seems clear that this doctrine of
presumptive grant can not apply to the Philippines in view of the Spanish legislation for the Indies. From
time to time there were promulgated laws which required the person in possession of public lands to
exhibit their titles or grants thereto. If these titles or grants were found to be good, they were
confirmed, but if they were not, or if the persons had no grants or titles at all, they were evicted from
the land.chanroblesvirtualawlibrary chanrobles virtual law library

For example, in Law 14, title 12, 4, Recompilation of the Laws of the Indies, it is stated:

We therefore order and command that all viceroys and presidents of pretrial courts designate, at such
times as shall to them 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 rights shall be protected, and all the rest shall be restored to us
to be disposed of at our will.

In the Royal Cedula of October 15, 1754, it was provided -

that any and all persons who, since the year 1700, and up to the date of promulgation and publication of
said order, shall have occupied royal lands, whether or not the same shall be cultivated or tenanted,
may, either in person or through their attorneys or representatives, appear and exhibit to said
subdelegates the titles and patents by virtue of which said lands are occupied. Said subdelegates will
designate as the period within which documents must be presented a term sufficient in length and
proportionate to the distance the interested party may have to travel for the purpose of making the
presentation. Said subdelegates will at the same time warn the parties interested that in 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.

In the regulations of June 25, 1880, it was provided as follows:

ART. 8. If the interested parties shall not ask an adjustment of the lands whose possession they are
unlawfully enjoining within the time of one year, or, the adjustment having been granted by the
authorities, they shall fail to fulfill their obligation in connection with the compromise, by paying the
proper sum into the treasury, the latter will, by virtue of the authority vested in it, reassert the
ownership of the Stated over the lands, and will, after fixing the whole thereof, proceed to sell at public
auction that part of the same which, either because it may have been reduced to cultivation or is not
located within the forest zone, is not deemed advisable to preserve as State forest reservations. 4

In the royal decree of the 13th of February, 1894, published in the Official Gazzette of Manila of the 17th
of April, 01894, it is provided in article 4 as follows:

ART. 4. The title to all agricultural lands which were capable of adjustment ( composicion) under the
royal decree of the 25th of June, 1880, but the adjustments of which decree in the Gaceta de Manila,
will revert to the State. Any claim to such lands by those who might have applied for the adjustment of
the same, but who have not done so as the above mentioned date, will not avail them in any way or at
any time.

In view of these provisions of the law, it seems to us impossible to say that as to the public agricultural
lands in the Philippines there existed a conclusive presumption after a lapse of thirty or any other
number of years that the Government of Spain had granted to the possessor thereof a legal title
thereto.chanroblesvirtualawlibrary chanrobles virtual law library
The plaintiff is not entitled to the benefits of paragraph 6 of section 54 of Act No. 926, the Public Land
Act, for the reason that act is not applicable to the Province of Benguet. The judgment of the court
below is affirmed, with the costs of this instance against the appellant.chanroblesvirtualawlibrary
chanrobles virtual law library

After the expiration of twenty days let judgment be entered accordingly and ten days thereafter the
case be returned to the court below for execution. So ordered.chanroblesvirtualawlibrary chanrobles
virtual law library

Arellano, C.J., Torres, Carson and Tracey, JJ., concur.chanroblesvirtualawlibrary chanrobles virtual law
library

Mapa, J., concurs in the result.

U.S. Supreme Court

Cariño v. Insular Government, 212 U.S. 449 (1909)

Cariño v. Insular Government of the Philippine Islands

No. 72

Argued January 13, 1909

Decided February 23, 1909

212 U.S. 449

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.