Ancestral Lands and Domains, Indigenous Peoples, and Other Juridical Fictions

Every nation has its creation myths...

Angela Stuart Santiago answers a number of questions I posed on her blog:

Why are Tagalogs, Pampangos, Cebuanos, Ilokanos not considered to be “indigenous peoples of the Philippines”?

Why don’t they deserve an ancestral homeland just like the Muslim Bangsamoro?

Is it because they are Christian??

– it is because the tagalogs pampangos cebuanos ilokanos largely went along with and were therefore accommodated by the colonizers, unlike the moros of mindanao who through spanish times never stopped fighting the invaders and mostly kept them away from mindanao. however the moros were no match militarily for the americans who also treated them differently, no americanization ekek as in luzon and the visayas, and so they didn’t know what torrens titles were about, and next thing they knew their lands were no longer theirs, titled instead to settlers from luzon and visayas, and americans and multinationals of course. so yes the moros were marginalized like other indigenous communities.

if they are even more of a minority in mindanao now compared to the lumads, it’s because they’ve been leaving mindanao and looking for better lives in luzon and visayas … and yes the milf represents but one faction of the moro people, and the mnlf represents another, and there are unrepresented factions, and yes they are as divided as we christians are -

but the dream of a bangsamoro homeland lives on, something they deserve that government has tried to deny them time and again by trying to wipe them out. so this a good thing that government is finally willing to make concessions, a step in the right direction, even if malayo pa ang landas na tatahakin on both sides.

I am more than ever convinced that at the heart of the Gordian Knot that is Mindanao are unexamined Guilt Trips and several different Fairy Tales for adults, much of it abetted by Supreme Court decisions and the constant repetition of Politically Correct mantras in the Mass Media and now the blogosphere. To me it is enough of a mind-bender that the vast majority of Filipinos are not to be considered "indigenous peoples" of the Archipelago because their ancestors converted to the Roman Catholic religion.

I should immediately point out by the way that there are substantial and material implications to whether one is considered an indigenous person in the Philippines. as enunciated by Justice Reynato Puno:

"Ancestral domains and ancestral lands are the private property of indigenous peoples and do not constitute part of the land of the public domain."

The Indigenous Peoples Rights Act of 1997 or the IPRA Law, survived a challenge to its Constitutionality in the Supreme Court of the Republic of the Philippines (SCORP) by a controversial 7-7 decision on December 6, 2000 in the landmark case of CRUZ and EUROPA versus INDIGENOUS PEOPLES. The Rules of SCORP allowed IPRA to pass by the smallest margin allowed: zero votes in a dead heat tie. (But does anyone remember WHY the Supreme Court was missing a fifteenth member in December, 2000?) En passant, this decision does not prevent future cases assailing the Constitutionality of the IPRA Law, but several general principles and battle lines may have been established that will be important in the attempts of Malacanang Palace to sign yet another "FINAL Peace Agreement" in Mindanao.

JUSTICE REYNATO PUNO wrote a highly detailed treatise (over a hundred pages) presenting the case for the seven prevailing justices, which also reveals the Guilt Trip at the heart of the Gordian Knot that is Mindanao:

J. Puno: "When Congress enacted the Indigenous Peoples Rights Act (IPRA), it introduced radical concepts into the Philippine legal system which appear to collide with settled constitutional and jural precepts on state ownership of land and other natural resources. The sense and subtleties of this law cannot be appreciated
without considering its distinct sociology and the labyrinths of its history. This Opinion attempts to interpret IPRA by discovering its soul shrouded by the mist of our history. After all, the IPRA was enacted by Congress not only to fulfill the constitutional mandate of protecting the indigenous cultural communities' right to their ancestral land but more importantly, to correct a grave historical injustice to our indigenous people."

On the other hand, the seven other Members of SCORP who thought IPRA unconstitutional, were represented in the Separate Concurring and Dissenting Opinion of Justice Artemio V. Panganiban.

^{Protection of Indigenous Peoples’ Rights Must Be Within the Constitutional Framework}

With due respect, however, I dissent from the ponencia’s resolution of the two main substantive issues, which constitute the core of this case. Specifically, I submit that Republic Act (RA) No. 8371, otherwise known as the Indigenous Peoples’ Rights Act (IPRA) of 1997, violates and contravenes the Constitution of the Philippines insofar as --

1. It recognizes or, worse, grants rights of ownership over “lands of the public domain, waters, x x x and other natural resources” which, under Section 2, Article XII of the Constitution, “are owned by the State” and “shall not be alienated.” I respectfully reject the contention that “ancestral lands and ancestral domains are not public lands and have never been owned by the State.” Such sweeping statement places substantial portions of Philippine territory outside the scope of the Philippine Constitution and beyond the collective reach of the Filipino people. As will be discussed later, these real properties constitute a third of the entire Philippine territory; and the resources, 80 percent of the nation's natural wealth.

2. It defeats, dilutes or lessens the authority of the State to oversee the “exploration, development, and utilization of natural resources,” which the Constitution expressly requires to “be under the full control and supervision of the State.”

True, our fundamental law mandates the protection of the indigenous cultural communities’ right to their ancestral lands, but such mandate is "subject to the provisions of this Constitution."[4] I concede that indigenous cultural communities and indigenous peoples (ICCs/IPs) may be accorded preferential rights to the beneficial use of public domains, as well as priority in the exploration, development and utilization of natural resources. Such privileges, however, must be subject to the fundamental law.

Consistent with the social justice principle of giving more in law to those who have less in life, Congress in its wisdom may grant preferences and prerogatives to our marginalized brothers and sisters, subject to the irreducible caveat that the Constitution must be respected. I personally believe in according every benefit to the poor, the oppressed and the disadvantaged, in order to empower them to equally enjoy the blessings of nationhood. I cannot, however, agree to legitimize perpetual inequality of access to the nation's wealth or to stamp the Court's imprimatur on a law that offends and degrades the repository of the very authority of this Court -- the Constitution of the Philippines.

---

An important question that arises is: WHO ARE THE INDIGENOUS PEOPLES OF THE PHILIPPINES?

Fortunately, the IPRA law states exactly who the indigenous peoples of the Philippines are by presenting a succinct list:

Presently, Philippine indigenous peoples inhabit the interiors and mountains of Luzon, Mindanao, Mindoro, Negros, Samar, Leyte, and the Palawan and Sulu group of islands. They are composed of 110 tribes and are as follows:

1. In the Cordillera Autonomous Region-- Kankaney, Ibaloi, Bontoc, Tinggian or Itneg, Ifugao, Kalinga, Yapayao, Aeta or Agta or Pugot, and Bago of Ilocos Norte and Pangasinan; Ibanag of Isabela, Cagayan; Ilongot of Quirino and Nueva Vizcaya; Gaddang of Quirino, Nueva Vizcaya, Itawis of Cagayan; Ivatan of Batanes, Aeta of Cagayan, Quirino and Isabela.

2. In Region III-- Aetas.

3. In Region IV-- Dumagats of Aurora, Rizal; Remontado of Aurora, Rizal, Quezon; Alangan or Mangyan, Batangan, Buid or Buhid, Hanunuo and Iraya of Oriental and Occidental Mindoro; Tadyawan of Occidental Mindoro; Cuyonon, Palawanon, Tagbanua and Tao't bato of Palawan.

4. In Region V-- Aeta of Camarines Norte and Camarines Sur; Aeta-Abiyan, Isarog, and Kabihug of Camarines Norte; Agta, and Mayon of Camarines Sur; Itom of Albay, Cimaron of Sorsogon; and the Pullon of Masbate and Camarines Sur.

5. In Region VI-- Ati of Negros Occidental, Iloilo and Antique, Capiz; the Magahat of Negros Occidental; the Corolano and Sulod.

6. In Region VII-- Magahat of Negros Oriental and Eskaya of Bohol.

7. In Region IX-- the Badjao numbering about 192,000 in Tawi-Tawi, Zamboanga del Sur; the Kalibugan of Basilan, the Samal, Subanon and Yakat.

8. Region X-- Numbering 1.6 million in Region X alone, the IPs are: the Banwaon, Bukidnon, Matigsalog, Talaanding of Bukidnon; the Camiguin of Camiguin Island; the Higa-unon of Agusan del Norte, Agusan del Sur, Bukidnon and Misamis Occidental; the Tigwahanon of Agusan del Sur, Misamis Oriental and and Misamis Occidental, the Manobo of the Agusan provinces, and the Umayamnon of Agusan and Bukidnon.

9. In Region XI-- There are about 1,774,065 IPs in Region XI. They are tribes of the Dibabaon, Mansaka of Davao del Norte; B'laan, Kalagan, Langilad, T'boli and Talaingod of Davao del Sur; Mamamanua of Surigao del Sur; Mandaya of the Surigao provinces and Davao Oriental; Manobo Blit of South Cotabato; the Mangguangon of Davao and South Cotabato; Matigsalog of Davao del Norte and Del Sur; Tagakaolo, Tasaday and Ubo of South Cotabato; and Bagobo of Davao del sur and South Cotabato.

10. In Region XII-- Ilianen, Tiruray, Maguindanao, Maranao, Tausug,

Please note that the NON-INDIGENOUS peoples of the Philippines, according to this Supreme Court decision are all the CHRISTIAN Filipinos, for example, the Ilocanos, Pampangos, Tagalogs, Cebuanos, and all of the Visayans who converted to Roman Catholicism in the 16th, 17th and 18 centuries.

ALL 110 officially designated Indigenous Peoples of the Philippines are for nominally non-Christian minorities (although Cordillera IPs were converted in large numbers to Protestant churches during the 20th and 21st centuries).

NONE of the 110 officially designated Indigenous Peoples of the Philippines come from its nominally Catholic majority populations and ethnic groups, because the qualification required of our ancestors so that some of us are now designated as "indigenous peoples" with private property rights over ancestral lands and domains, is that those ancestors of ours successfully resisted Spanish colonialization.

The officially designated IPs are all deemed to own "by native title" ancestral lands and domains, which their descendants now own. But the NON-IPs have no such lands or rights.

The difference is whether the ancestors of any given living ethnic group succumbed to Western colonialism and became Catholics or not. Those that "resisted colonialism" and did not become Catholics are the "Indigenous Peoples". Those that did have none of the rights now given to the IPs.

But it cannot be denied historically that many of the designated IPs also succumbed to colonialism and forced religious conversion. When Islam came, it was no different from when Christianity came...by the Sword and the Cross, or the Kris and the Crescent...soldiers and missionaries. But as long as the invaders were NOT Western, that group could still be considered an Indigenous People. That is how the Supreme Court crumbles the cookie.

Basically, ALL the Indigenous Peoples of the Philippines are those that supposedly did not succumb to Western Imperialism (such as the slave-raiding slave-trading Maguindanao and Sulu Confederacies that regularly invaded and pillaged the Visayas for centuries of certain Golden Age.)

---

UPDATES:
Former Senate President Franklin Drilon warns President Arroyo that signing that Memorandum of Agreement with the MILF on August 5 could constitute an impeachable offense since several provisions culpably violate the 1987 Constitution.

---