(Done in 1992 at Iligan City, published initially as two versions. First as the abbreviated edition published by The Minority Rights Group, London entitled The Lumad and Moro of Mindanaw, July 1993. The Philippine edition carrying the full draft was printed by AFRIM in Davao City 1994. This was later updated in 2003, summarized in an epilogue. This is the third revision, now with an expanded Epilogue.)
4th of 16 parts
Chapter 1 Part IV
Regalian Doctrine vs. Ancestral Domain
Constituting the core of the Philippine land property system, the regalian doctrine has been and is still enshrined in the Philippine Constitutions of 1935, 1973 and 1987. With it the state declares itself the sole owner of what is called state domain and reserves the right to classify it for purposes of proper disposition to its citizens.
Thus, lands classified as alienable and disposable may be owned privately, and titled to themselves, by individuals or corporations; and lands, forest areas, bodies of water, and so on which are described as inalienable and non-disposable are state owned and are not open to private ownership. They may, however, be leased for a specified period.
The state of the Philippines inherited the regalian doctrine from Spain, as it also adopted hook, line and sinker all laws affecting land and other natural resources enacted and implemented by the American colonizers. These constitute one of the biggest chunks of institutions carried over from colonial times.
It is said that Spain’s discovery of the Philippine archipelago gave the Spanish crown, as was the practice among European expansionists in the l5th and l6th centuries, possessory rights over the islands. Since the King stood for the Spanish State, it was understood that his dominion was also state dominion, and the King or the State reserves the right and the authority to dispose of lands therein to its subjects and in accordance with its laws.
The regalian doctrine is regarded as a legal fiction because no such law ever existed. In any case, it was on the basis of this authority that the Spanish crown handed down a law in l894 commanding its subjects in the Philippine colony to register their lands.
It was presumably on the basis of this authority that Spain ceded the entire Philippine archipelago to the United States through the Treaty of Paris of 10 December l898.
Whether this cession was legitimate or not was entirely a matter of opinion. To leave no doubt about it, the Americans employed armed might extensively to extract acquiescence from resisting indigenous inhabitants.
To the United States government, the Treaty of Paris and the subsequent treaty of 7 November l900, which added portions of Philippine territory overlooked earlier, effected a transfer of title of ownership, or of sovereign rights over the entirety of the Philippine archipelago.
This fact explains why the Philippine Islands along with other Pacific Islands have been referred to in American textbooks as their Insular Possessions. This was unmistakably contained in the Philippine Bill of l902 or more formally, Public Act No. 235 passed by the U.S. Congress on l July l902, an organic law, which served as the fundamental law of the Philippine Islands until the enactment of the Jones Law of l9l6.
From here, the leap to the Philippine constitution of 1935, then to 1973, then to 1987 came as a matter of course.
To what extent did the regalian doctrine contribute to the minoritization of the indigenous communities? To the extent that the state took away the lands that should properly belong to these communities. How extensive is the indigenous territory involved? Or how much of the Philippine archipelago was uncolonized by the Spaniards?
An early assessment made by Mr. Worcester about the extent of Philippine territory inhabited by the so-called non-Christian tribes gives us a fairly good idea about the size of uncolonized lands in the early years of the American colonial regime.
He wrote: “there today remains a very extensive territory amounting to about one-half of the total land area, which is populated by non-Christian peoples so far as it is populated at all. Such peoples make up approximately an eighth of the entire population.”
To ensure unchallenged exercise of the state authority to dispose of state domain or public lands, the Philippine Commission enacted a law, six months after the passage of the land registration act, which took away from indigenous leaders, datus or chiefs their authority to dispose of lands within their respective jurisdictions.
Clearly self-explanatory, Act No.718 of 1903 was entitled “An Act making void land grants from Moro sultans or dattos or from chiefs of non-Christian Tribes when made without governmental authority or consent.”
It was now illegal for any indigenous leader to dispose of lands to any member of his community, regardless of whether or not this had been their practice since time immemorial.
The Philippine Commission passed the Land Registration Act No. 496 on 6 November l902. This institutionalized the Torrens system in the country, first introduced in South Australia as the Real Property Act of l857-l858. This law mandated and provided for the guidelines for the registration and titling of privately owned lands, whether by individual persons or by corporations.
The word “corporation” leaves no room for the indigenous concept of private communal property.
Forest lands, bodies of water and so on which used to be sources of daily food and other needs for the indigenous communities were no longer indigenous territories; they have become state owned and could only be made use of with the consent of the government.
The strength of the Torrens system is further reinforced by the provisions of the public land laws, which happen to be patently discriminatory against the indigenous communities, as the next section will show.
Discriminatory Provisions of Public Land Laws and Other Laws Affecting Land
First, it must be reiterated, for emphasis, that the US acquisition of sovereignty over the Philippine archipelago did not carry with it the recognition of the communal ancestral domains of the indigenous communities. Neither did it recognize that of the Moro, least of all the legitimacy of their sultanates, nor that of any other community for that matter.
Second, the Philippine Commission passed a law (Act No. 718) on 4 April l903, six months after the passage of the land registration act, making void “land grants from Moro sultans or dattos or from chiefs of Non-Christian tribes when made without governmental authority or consent.”
Section 82 of Public Land Act No. 926 which was amended by Act No. 2874 by the Senate and House of Representatives on 29 November 1919 in accordance with the provisions of the Jones Law, continues to carry the almost exact wordings of said law, reiterating further the legitimacy of the transfer of sovereign authority from Spain to the United States, and the illegality of indigenous claims.
This same provision is still in effect to this day (1993).
Third, the Land Registration Act No. 496 of 6 November l902 requires the registration of lands occupied by private persons or corporations, and the application for registration of title, says Sec. 2l, “”shall be in writing, signed and sworn to by the applicant.”
The very matter of registration was not only totally alien to the indigenous communities, most of them would have been unable to comply, illiterate that they were, even if by some miracle they acquired the desire to register.
Also, what would they register? There was no room for registration of communal lands. As a young Filipino lawyer recently pointed out, “under our present property law, communal ownership is a mere fiction of the mind; it is unregistrable and deserves no legal protection.”
Fourth, the Public Land Act No. 926 of 7 October l903, passed by the Philippine Commission, allowed individuals to acquire homesteads not exceeding l6 hectares each, and corporations l,024 hectares each, of “unoccupied, unreserved, unappropriated agricultural public lands” as stated by Sec. 1.
Nothing was said about the unique customs of the indigenous communities.
Fifth, Public Land Act No. 926, amended through Act No.2874 by the Senate and the House of Representatives on 29 November l9l9 in accordance with the provisions of the Jones Law, provided that the 16 hectares allowed earlier to individuals was increased to 24, but the non-Christian was allowed an area (Sec. 22) “which shall not exceed ten (10) hectares” with very stringent conditions, that is, “It shall be an essential condition that the applicant for the permit cultivate and improve the land, and if such cultivation has not begun within six months from and after the date on which the permit was granted, the permit shall ipso facto be cancelled.
“The permit shall be for a term of five years. If at the expiration of this term or at any time theretofore, the holder of the permit shall apply for a homestead under the provisions of this chapter, including the portions for which a permit was granted to him, he shall have the priority, otherwise the land shall be again open to disposition at the expiration of the five years.
“For each permit the sum of five pesos shall be paid, which may be done in annual installments.”
Sixth, Commonwealth Act No. 4l, as amended on 7 November 1936, withdrew the privilege earlier granted to the settlers of owning more than one homestead at 24 hectares each and reverted to only one not exceeding l6 hectares. But the non-Christians who were earlier allowed a maximum of ten hectares were now permitted only four (4) hectares!
By operation of law, not only did the indigenous communities find themselves squatters in their own lands.
Worse, if they happened to be inhabitants of provinces which had been opened to resettlements, like Cagayan Valley, Isabela, Nueva Vizcaya, Nueva Ecija, Mindoro, Palawan, Negros, Mindanaw, and so on, they would have seen their lands, as they really did see them, being occupied by streams of settlers from other parts of the country.
Aside from dispossessing them, the new development literally reduced them to the status of numerical minorities. From being inhabitants of the plains, they now have become dwellers of forest areas, or midlands and uplands.
In the wake of the settlers, or sometimes ahead of them, came the rich and the powerful in the form of extensive plantations, pasture leases or cattle ranches, mining concerns, logging operations, and rattan concessions. The government, too, added its bit: development projects like irrigation dams, hydroelectric plants, geothermal plants, highways and so on.
Now that most of them have become upland dwellers, a new law came into existence in 1975, Presidential Decree 705 or the Revised Forestry Code providing, among others, that lands not covered by paper titles which are over 18% in slope or less than 250 hectares are considered permanently public.
Section 69 of the same decree declares it unlawful to do kaingin or practice swidden agriculture without permit. Penalty is up to two years imprisonment or a fine not to exceed 20,000 pesos.
In the end, after more than three centuries of relative freedom and stability during the Spanish period, many indigenous communities found themselves, in less than half a century of American rule and in an even shorter period of the Philippine Republic, rapidly displaced and permanently dispossessed – legally!
Although the 1987 Charter claims to uphold and protect ancestral lands, Congress has yet to pass an enabling act to put the Constitutional intention into effect. The last Congress failed to approve the Senate and House bills on ancestral lands.
(MindaViews is the opinion section of MindaNews. A peace specialist, Rudy Buhay Rodil is an active Mindanao historian and peace advocate)
Tomorrow: Chapter 2. The ICC Situation in Mindanaw-Sulu