Reading 11: Local territorial boundaries and resource control [Part 1]

Prill-Brett, J. (2015). Tradition and transformation: Studies on Cordillera indigenous culture. UP Baguio: Cordillera Studies Center
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Tenurial Rules
Tenurial rules refer to a system of patterns of behavior that specifically serve to control a
society's use of environmental resources (Crocombe 1974, 1). There are different social relationships
which have developed over time between Cordillera groups and their perception of land. Since
there is no existing land tenure system that bestows all rights over any parcel of land to a single
party, it is instructive to examine the tenure system by referring to the various types of rights
and duties that are recognized and the parties which hold these (ibid., 8).
"Property" and "ownership" do not refer to property per se, but to rights in relation to
properties that are owned. Popular usage may, however, speak of property itself as being
owned. Thus, ownership of land refers to the possession of a right or rights in respect to that
land, and ultimately the legal or customary power to exclude other persons from exercising such
rights (ibid.).

Types of Land Rights

There are generally three types of rights to land which are exercised among the
indigenous Cordillera communities (see Prill-Brett 1985a, 1987b): (1) communal land rights, (2)
indigenous corporate land rights, and (3) individual land rights. The three types may be
found to operate simultaneously in certain Cordillera communities, especially in the areas
embraced by the present Mountain Province; other groups may work with only two types of land
rights. Upland communities which have shifted to a predominantly commercial agriculture
display a strong tendency toward the acquisition of individual rights (Russell, 1983, 9).
Communal land rights. These are exercised by all citizens of a village community
within a defined territory, in relation to the exploitation of resources. These communal lands are
usually far from the village but are found within the boundaries of the community. These are
usually forests where no permanent improvements on the land have been made by any of the
villagers. Any member of the community has equal right to exploit the forest for lumber,
firewood, forest products, and wild game; this is according to custom law pertaining to the
exploitation of forests. The cutting of trees is limited only to household and village construction
needs. Lumber may not be taken out of the village or used for commercial purposes (i.e., for
sale). Communal rights to land do not allow the alienation of land to non-citizens of the village.
This rule also prevents non-citizens from exploiting any natural resources without the
permission and consent of the villagers. Fines are generally imposed on the offender by the
community through the elders and barangay officials.
Indigenous corporate rights. These are rights to common land belonging to a descent
group, family, or ward (see Prill-Brett 1987b). These kinds of land are called tayan among the Bontok
and saguday among the northern Kankana-ey groups. Corporate land may include areas that
were originally swidden gardens but were reforested by a particular individual. In some cases
the land may have been originally communal forest cleared by a founding ancestor who made
improvements such as stone-wall fences, ditches, wooden fences, or tone monuments to mark
the boundaries. If the arable area is close to any water source, the land may be continuously
cultivated from generation to generation. This land could also be converted into rice terraces.
The continuous occupation by the same descent group members legitimizes prior rights. Thus,
rights are devolved to all the descendants of the founder, with usufruct rights. Corporate land
may not be alienated by individual members since it belongs to the group in common. Any
member who wishes to cultivate a portion of land or to gather wood from the area is free to do
so without asking anyone's permission. However, non-members may exploit corporate property
only with the permission of right-holders. There are rules which cover informal contracts of the
latter sort, ownership of produce, permanent improvements, and the planting of trees on
corporate land. Sale of corporate land is only possible during an emergency situation. On
such an occasion, anyone from the descent group is given the first opportunity to purchase the
land in exchange for the needs which the corporate group has to fulfill (i.e., sacrificial animals,
death paraphernalia, cash, and the like). In this case the rights become restricted to the
purchaser, with the dissolution of rights of the rest of the members of the descent group in
relation to the property. The property transferred then becomes individual property.
Individual rights. These refer to rights over land (such as irrigated rice terraces,
residential lots, and hillside tree lots) which have been devolved to individuals. Rice terraces are
generally perceived by the Cordillera groups as the most valuable type of land. Where there is
an input of considerable labor and materials including the building of irrigation canals to divert
water from a source to the pond field (see Conklin 1980, 15), this kind of property is inherited by
individuals (usually upon marriage) and later on managed by the family. In the inheritance
pattern, the more common rule is that the eldest child (primogeniture), regardless of sex, is
given the right (under customary law) to acquire the lion's share of inherited property. Thus, the
order of birth is important in defining who has prior rights to parentally inherited property.
Childless couples may, upon divorce, get back their own individual properties; when one spouse
dies, his/her property reverts to any of his or her own kinsmen, generally on the basis of
whoever shoulders the mortuary expenses.
Sale of property is only resorted to during an emergency and upon securing the
consent of the parent who inherited the property. However, in the sale of rice fields, it is a pan-
Cordilleran practice to offer the property first to close relatives before it is offered to more
distant relations or to others outside the kin group. Rice terraces are traditionally alienated to
meet mortuary requirements which the family of the deceased was unable to produce. Other
reasons for the transfer would be the need to raise the required fine for violation of
customary law, and the need for cash to pay hospital bills. At present, property is also sold to
pay for children's education or to buy land elsewhere, for example, in Tabuk, Baguio, or Nueva
Vizcaya. The preceding section briefly describes Cordillera land resources, how they are
perceived, and the rules that govern their management. The following section will discuss how
these indigenous land concepts have come into conflict with national laws on land management.

Conflict of Laws
There is a widespread notion that the indigenous communities do not have a clear
concept of land ownership. This notion, aside from being misleading, is totally false. The
national land laws, specifically those pertaining to land "ownership," are premised on the
Regalian Doctrine, which asserts that all lands in the Philippines belong to the State. State lands
are classified into three categories: private, public, and reservations. Private rights to land are
acquired from the State through grants, purchase, and/or other forms of transfer which are
recognized and covered by State laws. The symbol of "ownership" resides in a piece of paper or
document called a "title." Lands not covered by paper titles fall under the classification of
"public" land and "reservation." Following the above line of reasoning, virtually all lands
occupied by indigenous communities would therefore be classified as "public" land or
"reservation." Under certain provisions of the law, most of these are non-alienable and non-
disposable. Such provision is found in Presidential Decree 70s, otherwise known as the
Revised Forestry Code, which states that no land in the public domain 18% in slope or over can
be classified as alienable or disposable for agricultural and settlement purposes.
The 18% slope rule is inapplicable to the Cordillera where rice-terraced agricultural lands
are primarily found in lands that are from 70% to 100% slopes (see Conklin, 1980, 25). Furthermore,
many settlements are located in lands which are certainly over 18% in slope. These are,
therefore, non-alienable and non-disposable for paper titling to members of the cultural
communities, but are often open to exploitation by those favored by the State.
 During the height of the Chico Dam issue, a new presidential decree was released, P.D.
1559 of 1979, stating that" tribal Filipinos shall, whenever the best land use of the area so
demands as determined by the Director, be ejected and relocated to the nearest accessible
government resettlement area." While such lands, "as determined by the Director," cannot be
titled by the indigenous occupants due to the provisions of P.D. 705, such lands can be (and
have been) awarded to government or private entities and other exploitative groups. The decree
further empowers the government to establish "agro-industrial" projects in ancestral territories.
The decree and its implementing order also established a cumbersome bureaucratic procedure
whereby ethnic minority citizens living in un-exempted ancestral land can acquire "Land
Occupancy Certificates."
There are certain decrees which appear to recognize and, in theory, protect ancestral
rights such as the Ancestral Land Decree (P.D. No. 410 of 1974). This declares all agricultural
land occupied and cultivated by members of the national cultural communities since 1964 as
alienable and disposable, although it has not been implemented. In fact there are certain
provinces that have been exempted from this decree, such as Benguet, Abra, Panay, Negros,
Quezon, and Camarines.
There are other confusing and conflicting laws affecting the indigenous land tenure
system. These laws state, on the one hand, that land rights of tribal or cultural communities are
recognized by the State, and yet the reality is contrary to what is stated. For instance, the
Bureau of Forestry Administration Order No. 11 of 1970 states that all forest concessions "shall
be subject to the private rights of cultural, minorities within the concession or licensed area as
evidenced by the occupation existing at the time a license is issued by the government, or other
muniments of title and the area on which such private rights exist shall be deemed excluded
from the concession or license area." Another law which should reinforce the above is found in
Sec. (g) of P.D. No. 1414 of 1978, prohibiting the granting of forest concessions in provinces
populated by ethnic minorities, unless the Office of Muslim Affairs and Cultural Communities
(formerly PANAMIN) certifies that there are no ethnic minorities living within or having a claim to
any portion of the area being applied for. This law has been, if ever, rarely applied. It apparently
was not applied to the Cordillera communities in Abra which were affected by the Cellophil
Resources Corporation.
In 1973 the Department of Agriculture and Natural Resources awarded to the Cellophil
Resources Corporation Timber and Pulpwood License Agreement No. 261 covering 99,565
hectares, and another 99,230 hectares to a sister company covering the provinces of Abra,
Kalinga-Apayao, Mountain Province, Ilocos Sur and Ilocos Norte. Although the concession
areas are located within the territorial boundaries of Cordillera indigenous communities, the
government and the Cellophil Resources Corporation (CRC) apparently considered the
occupants as non-existent. Another aspect of the grant is that the area covered is largely within
the Cordillera Forest Reservation, which is supposedly non-alienable. No effort was ever made
to reclassify the reservation so as to justify the grant.
What is disturbing about these "development" enterprises is that the communities
affected by their activities become more "underdeveloped" from the ecological, social, and
economic standpoints. The ecological effects took their toll on the Tingguian communities (Abra)
affected by the CRe. In exchange for the "low-level" employment offered the community by the
CRC, the affected community realized that they were giving up an economy based on
sufficiency of agricultural production, river and brook water supply, forest products, and pasture
lands. In return, they faced floods, landslides, pollution of their rivers, degradation of their
forests, and drought (see DorraI1979).
It appears from the picture we get of Filipino indigenous groups and their struggle
against the encroachment and usurpation of their lands, that this problem of usurpation may
have been facilitated and sanctioned advertently or inadvertently by the offices supposedly
responsible for the management of their natural resources. One of the most notorious violators
of the rights to ancestral land of indigenous communities, from northern Luzon to the Mindanao
region, is the Department of Environment and Natural Resources." This Department awarded all
kinds of concessions which affected indigenous rights to land, water, minerals, and forest
products. Most of the lands proclaimed as Forest Reserves have within their confines
centuries-old villages, agricultural lands, and private forests, held in private ownership by the
Cordillera indigenous communities.
The most disturbing part of this scenario is that these land laws completely disregard the
prior rights of the indigenous groups to their ancestral domain. Thus, the people get classified
as "squatters" on "public" land. Although this is the current popular assumption, the fact is that
as far back as the early Spanish colonial period, there were indeed laws (Laws of the Indies)
which recognized Native Title (see Lynch 1982, 274 for more details). The existence of native rights
to ancestral land was again emphasized during the early American colonial period when this
was challenged all the way to the U'S, Supreme Court (see Human Rights and Ancestral Land: A Source Book,
for Carino v Insular Government, 168-79). In this case, the colonial and U.S. government claimed the land
in question was public and opposed Carino's efforts to obtain recognition of private ownership
and acquire a paper title. In a 1909 decision of the U.S. Supreme Court, penned by Justice
Oliver Wend ell Holmes, the court ruled that ... every presumption is and ought to be against the

government in a case like the present... when as far back as testimony or memory goes, the
land has been held under a claim of private ownership it will be presumed ... never to have been
public land.
Justice Holmes further remarked that Spanish decrees and laws "indicate pretty clearly
that the natives were recognized as owning some lands, irrespective of any royal grant." Lynch
(1986, 281) informs us that the validity of the time immemorial presumption has been reiterated at
least six times by the Philippine Supreme Court, most recently in June 1982. The strongest
private property right to "public" lands is possessed by indigenous groups who, along with
their predecessors-in-interest, have continually occupied and utilized an area since time
immemorial.
It appears then that national laws recognize four distinct tenurial rights as well as a
variety of correlative rights which benefit indigenous occupants. Lynch (1986, 280) points out that
each of the rights emanates from the national laws recognized by the Philippine legal
community as valid and in force as of May 1985. Unfortunately, these laws are often not
effective, since tenurial rights which upland citizens acquire by virtue of national laws are often
not recognized by national and local governments.
What then is the validity of the "time immemorial" presumption and of "native titles?"
Since ancestral land has never been "public," is it necessary for legal power to classify this land
as agricultural, forest, timber, or mineral? The national law considers only agricultural land
as alienable and disposable. It is disheartening to know that after the Carino decision, the
executive and judiciary branches have not only ignored the time immemorial presumption, but
have illegally extinguished the private property rights of many.

Toward a New Regime of Property

The concept of territory and boundaries appear to have been established by most
Cordillera communities through prior exploitation, continuous occupation, and the defense of
their territories from outside encroachment. Through this process, most indigenous communities
have established their ancestral domain. The collective interest of each community lies in its
ability to keep the territory intact so that they will continue to provide the territorial base for the
community for future generations. Within this territorial base, community members exercise their
self-determination in the control of their land and other resources for the benefit of community
members (Prill-Brett 1985a).
 Indigenous tenurial rules allow everyone in the village access to land. Thus, virtually no
families in the indigenous communities are landless. There are several rights to land access
which belong to individuals, families, groups in-common, and communal holdings of the village.
Indigenous land tenure laws are generally flexible and more concerned with minimizing
inequality among citizens of these indigenous communities through the tenurial rules which
prevent land concentration in the hands of a few. This is controlled by the rules where land is
sold in favor of relatives, or rarely sold to non-villagers. Although there is inequality where the
wealthier members of the community control the most productive resources such as rice fields,
the indigenous law balances this out through the ritual process. The wealthy members are
traditionally obliged to perform numerous public feasts where their surplus produce (animals
and grain) are redistributed to community members, usually in the form of food and drink. These
community feasts are also important occasions for reinforcing village consciousness and
solidarity. Thus, in the traditional communities, the tenurial patterns point to two important
postulates. First, land is generally not alienable to those from beyond the community. It is
a source of life - it has mystical and sacred elements. Without land, a family or community
has no complete existence. Land, including house sites and burial sites, is the anchor and
the soul of the community (see also Cool n.d., 13). These perceptions are not common only to
Cordillera groups, but could apply to most of the indigenous communities of the Philippines
and Southeast Asia.
Landlessness has been suggested as an artifact of civilization. The establishment of
legal codes by colonial governments in the Philippines has transformed whole communities and
their land resources into properties of the state. The introduction of paper titles has been
responsible for viewing land as a commodity to be bought and sold, or otherwise exploited for
the profit of individuals with paper titles. This has been clearly demonstrated in the Benguet
region, most especially in Baguio and surrounding areas.
The introduction and encouragement of individual paper titling of common property
among the Cordillera communities should be reassessed as to its possible implications. This
move may result in unintended effects. Would this not encourage individuals to title
communal lands or corporate common lands in order to render the other right-owners landless?
This would upset the indigenous system where lands which have not been improved cannot be
owned by individuals, since this would deprive community members of their usufruct rights to
the land.
Furthermore, with paper titles, there is the tendency to freely transfer lands to outsiders
in transactions which would go against the customary law. Land could then be sold to non-
villagers, even without the knowledge of other right-holders. Indigenous groups in the Central
Cordillera traditionally have no paper titles to their lands because they feel that the acquisition of

paper titles would be negating their "time immemorial" ownership of right to their ancestral land
in favor of the national government. This has been stated clearly and publicly in a unanimous
decision collectively reached by four elders (including Macliing Dulag) from Kalinga and Bontok
during the height of the Chico Dam issue:
If we accept, it will be as if we ever doubted that we belong to the land; or that we
question our ancient law which constituted for us Kalinga (land) and Bontok (land) our ili,
which includes the entire reaches marked bugis (tribal territory) by our vochong (peace
pact). It designates our domain of responsibility, it is our native land... Long experience
has shown us that outsiders' law is not able to understand us, our customs and our ways.
Always it is unjust, right what is not right... (quoted in Parpan, 1983, 153).

The non-recognition of native titles has definitely led to exploitation by favored groups who
profit from indigenous community lands at the expense of the minority groups. People who are
deprived of their land are also deprived of their means of livelihood-their means of self-
sufficiency and self-reliance-and of their dignity, pride and identity. The forced displacement of
indigenous communities from their ancestral domain is a painful experience which produces
not only physical but also psychological damage. Ironically, and unfortunately, such
psychological damage cannot be statistically measured and rendered into monetary
equivalents.
Land is said to be the basis of wealth and social position, therefore, people have low
status if they have no land. Since the landless are poor and of low status, they are under-
represented in political, economic and social matters of importance to themselves
and their communities. Since the landless are under-represented, they are powerless to do
much to improve their condition. Cool (n.d., 18) has referred to this condition of poverty and
landlessness as "circular trap."
There is a need for a new regime of property congenial to indigenous cultural
communities. Central to such a new regime of property should be the concept of ancestral
domain. The effect of such a domain is to vest control, possession, and enjoyment of the
domain in a corporate body. The ancestral domain should be in perpetuity, and should not be
transferred or alienated, even by the community itself (see also Fernandez 1980) as enshrined in
Cordillera customary law.
Within the ancestral domain, the people should be allowed to continue practicing their own
customary laws which they consider important to the functioning and continuance of their social
system as part of the larger Philippine Republic. Should they, however, so decide in the future
to adopt the laws of the larger society to apply to their domain, this should be truly a community
decision, pursued as a true application of self-determination.
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Paradigm Shift and the IPRA
The passage of the IPRA law is the result of paradigm shifts in the attitude of
government agencies toward the ICCs/IPs on two counts. First is the paradigm shift in the state
legal centralist ideology (Prill-Brett, 2002,3), where the state holds a monopoly on the exercise
of the law, administered by a single set of state institutions (Griffiths, 1986, 3). The IPRA law has
finally challenged the legal fiction called the Regalian Doctrine (Lynch 1986, 270) in relation to IPs'
rights to their ancestral domains and ancestral lands, as well as the customary laws that guide
resource management. The state now recognizes the existence of another system of law,
particularly customary law."
Second is a shift in the general perception that indigenous forest dwellers were the de
graders of the natural environment through their unsustainable resource management practices,
i.e., swidden farming or shifting cultivation. Indigenous people are now viewed as natural
resource conservers through their sustainable indigenous knowledge practices, guided by their
customary law. Therefore, the rights to the land that they have protected and managed
sustainably should be recognized, and furthermore their rights should be protected by law.
The Philippine government's recognition and granting of ancestral land rights and
ancestral domain rights to IPs and communities through the passage of the IPRA has been the
result of policy conflict over land access, use, and control. The seeming inability of government
to control and manage natural resources under the classification of public domain has led to a
general perception that these resources are open access resources." The resulting
intensification of forest degradation and unsustainable forest extraction has prompted the
government to change its policies towards IPs/ICCs that inhabit the forest.
The IPRA law also provides for the creation of the NCIP, which is an independent agency
directly under the office of the President. It is the primary government agency responsible for
the formulation and implementation of the policies covered by the IPRA. Among the
responsibilities of the NCIP is the mandate to issue Certificates of Ancestral Land Titles
(CALTs) and Certificates of Ancestral Domain Titles (CADTs) over areas that have been earlier
awarded CALCs and CADCs by the DENR (IPRA, section 11, "Recognition of Ancestral
Domain Rights").
Up until this time, colonial and post-colonial governments had never recognized
indigenous collective land rights, and most especially ancestral domain claims. But in fact, many
ancestral lands should actually be classified as private, and should not have been designated
as public lands, as was decided in a 1909 landmark decision of the United States Supreme
Court" (also Lynch, 1986). The IPRA allows the titling of individually owned land under the provisions
of the Land Registration Act No. 496 of 1902. While all lands with slopes of 18% and above are
classified as Public Land, and therefore, non-alienable and non-disposable, under the IPRA,
individually owned lands which are classified as agricultural, residential, pasture, and tree
farming, including those with slopes of 18% or more, are alienable and disposable agricultural
lands (Chap. Ill, Sec. 12). This law therefore allows the titling of agricultural lands such as the
Cordillera rice terraces, some with slopes ranging from 60 to 80 degrees.
In the Cordillera experience a singularly important characteristic of an ancestral domain is
the effective control of a distinct community over a territory (Prill-Brett, 1988; chap. 2 this volume).
However, this concept is not universal to all communities applying for a CADC. DAO 02 simply
prescribes possession/occupation as the primary requisite for eligibility to a claim of ancestral
domain. By itself, this provision does not distinguish indigenous communities as to levels of
integration, especially as these still possess concepts of territory and territorial control, which
are indicators that correlate positively with the observed sustainability of resource management.
A second important characteristic of an ancestral domain is the existence of operational
concepts of territory and resource control. This is evidenced through the existence of jural
rights, duties, and obligations that govern the management of common property resources
within an ancestral domain. The communities that have exercised the concept of domain include
the rule of exclusion, which is evidence of territorial and cultural integrity. Sustainable
indigenous resource management practices are indicators of an integrated socio-cultural system
(Prill-Brett 1994). The domain historically covered only the territory of a distinct community in the
Cordillera context, and most likely this is so elsewhere among most of the Philippine ICCs.
Operational concepts of territory and resource control have evolved over time in the socio-
ecological context of each community, but traditional ancestral domain generally covered only
the territory of one distinct community, each village/community being an autonomous socio-
economic and political unit.