Indigenous Land Claims

Topics: Supreme Court of the United States, Property, United States Pages: 12 (3788 words) Published: March 25, 2011
This is the first part of 5, which I've roughly divided as follows:

1. Legal and Regulatory Context
2. Extra-Legal Realities
3. Other Players in the Area (other stakeholders and general situation in the CarCanMadCar area) 4. Specific legal, regulatory and political and practical logistics related to the CADT claim and any mining or other economic development plans 5. Next actions to take and questions to ask


Under the Indigenous Peoples Rights Act (IPRA) passed in 1997, indegenous peoples are theoretically entitled to avail through the National Commission on Indigenous Peoples (NCIP) of legal and regulatory mechanisms to receive formal title to their ancestral lands if they have continuously occupied and used those lands since before the Spanish conquest -- exceptions to the "continuously" part of that are made for cases where they are forced off the land against their desire.

I say "theoretically" entitled because only minority of potential claims have so far been granted Certificates of Ancestral Domain Title (CADTs), for some of the reasons below -- at the same time, there's reason to believe things are only getting better and that it will be easier and quicker to get a CADT going forward.

Prior to IPRA, tribes could apply for CALCs and CADCs, which were land claims and domain claims, respectively. Some tribes have applied to have their CADCs converted into CADTs, and some of those have been granted. As far as I can tell, the CARCANMADCAR tribal communities do not have a CADC, so they will have to go through the whole CADT process from scratch. After a CADT is granted by the NICP, the title still has to be registered with the Land Registration Authority (LRA) before it's considered fully effective.

Basics of Controlling Law and Legal Principles:
1556-1898 -- Spanish Rule over much of the Philippines -- "Regalian Doctrine" entrenched in the law of the land, and affirmed in the last act of the Spanish, in the Royal Decree of 13 February 1894, before the U.S. took over in 1898.

Regalian Doctrine: For most of the history of the Philippine Islands since the Spanish conquest, indegenous people were not considered to own any land at all -- they were considered to be allowed to use the lands as a favor given by the State. This was because the King of Spain declared that any land that was in the "public domain," i.e., not already formally recognized as private property was owned by him and could never be owned by anyone else --- rather use by anyone else was done under license or at the tolerance of the state.

The Spaniards first introduced the doctrine to the Philippines through the Laws of the Indies and the Royal Cedulas (Law 14, Title 12, Book 4 of the Novisima Recopilacion de Leyes de las Indias) which laid the foundation that "all lands that were not acquired from the Government, either by purchase or by grant, belong to the public domain." Upon the Spanish conquest of the Philippines, ownership of all "lands, territories and possessions" in the Philippines passed to the Spanish Crown.

The Spanish Crown put it thus, in the Novisima Recopilacion de Leyes de las Indias: “. . . it is our will that all lands which are held without proper and true deeds of grant be restored to us as they belong to us, in order that . . . said lands may remain free and unencumbered for us to dispose of as we may wish." And thus was the beginning of what's now called the Regalian Doctrine -- though as you'll see, the Regalian Doctrine has been interpreted and bent, expanded and elaborated, to mean a lot of things that don't really logically flow from it's often cited origins.

The Laws of the Indies were followed by the Ley Hipotecaria or the Mortgage Law of 1893. The Spanish Mortgage Law provided for the systematic registration of titles and deeds as well as possessory claims. The Royal Decree of 1894 or the "Maura Law" partly amended the Mortgage Law as well as...
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