Foundations of Public

and Private Law

CHAPTERS XIII & XIV
COLONIAL LEGACIES IN A FRAGILE REPUBLIC, 2011 EDITION
BY: OWEN J. LYNCH, SJD (YALE)

REPORTED BY: ATTY. BRUNESON I. ALABASTRO, CPA

UST MASTER OF LAWS (LL.M.) OFF -SITE PROGRAM
 DISENFRANCHISEMENT QUA PATERNALISM:
NON-CHRISTIAN FIEFDOM OF THE UNITED STATES IN THE PHITIPPINE ISLANDS
CHAPTER XIII
 REGIME OF COLONIAL
GENTRIFICATION
ØDivision of “civilized” and “Christian” groups vs.
“wild” or “pagan” tribes, namely:
1. Pure Indian
2. Mestizo
3. Negrito
 According to Taft: "The word 'tribe' gives an
erroneous impression. There is no tribal relation
among the Filipinos. There is racial solidarity
among them, undoubtably. They are
homogenous . . . To me all Filipinos are alike."
REGIME OF COLONIAL GENTRIFICATION
WILLIAM HOWARD TAFT DEAN WORCESTER
REGIME OF COLONIAL GENTRIFICATION
DAVID PRESCOTT BARROWS FERDINAND BLUMENTRITT
 BUREAUCRATIC
BEGINNINGS
The first Philippine (Schurman) Commission had
grappled with various theories for ruling the
Philippine peoples.
The commissioners found merit in the British
policies of indirect rule on the Malay Peninsula.
They recommended that policies in the
Philippines be limited to "semi-civilized and
barbarous people."
The recommendation also called for entering
into agreements with the leaders of these
peoples as had already been done with the
Sultan of Sulu.
 BUREAUCRATIC BEGINNINGS
President William McKinley's famous instructions of April
7, 1900 where he ordered the commissioners "to adopt the
same course followed by Congress in permitting the tribes of
our North American Indians to maintain their tribal
organization and government."
Less frequently quoted but ultimately more significant,
was the ensuing sentence: "Such tribal government should,
however, be subjected to wise and firm regulation and
without undue or petty interference, constant and active
effort should be exercised to prevent barbarous practices
and introduce civilized customs."
 BUREAUCRATIC BEGINNINGS
Bureau of Non-Christian Tribes – created on 10/2/1901 [Act No. 253] under
the Department of Interior – which was headed by Commissioner Worcester
Primary task: conduct ethnographic research among un-hispanized peoples
including Muslim Mindanao to determine the most practicable means for
bringing about their advancement in civilization and naming of the tribes
On 8/24/1903 – BNCT was reconstituted into the “Ethnological Survey of
the Philippine Islands.” [to conduct systematic scientific researches in
anthropology and ethnology among all inhabitants of the Phils.]
Reestablished under the Philippine Autonomy Act [Jones Law] on
8/29/1916
 1904 Louisiana Purchase
Centennial Exposition

According to Taft, the Exposition “offered an

invaluable opportunity … to give the
American people and American capitalists a
clear idea” of conditions in the archipelago.”

To make the villages seem real, it was

decided to fill them with live people, so over
1,000 Filipinos were shipped to St. Louis,
Missouri
 U.S. INDIAN PRECEDENTS
David Barrows [BNCT’s first director] inquired into the effectiveness of the
General Allotment Act of 1887 since at that time the US SC described the
tribes as “domestic dependent nations” and the US Gov’t had followed a
policy of dealing with the Indians as tribes whose relation to the US “resembles
that of a ward to his guardian”
At this time, there was a longstanding legal doctrine of “aboriginal title”
whereby Native Americans were recognized as holding undocumented but
constitutionally protected property rights over their ancestral domains
Barrows disagreed with this, and avoided any mention of such title under the
pretext that “US Constitution did not extend to the Philippine Colony”
 HARBINGERS OF A POLICY
Other than aboriginal titles, the most important policy issue concerning un-
Hispanized populations was local government:
Act No. 48 [11/22/1900] – law establishing the civil government in Benguet
Province
Act No. 49 – established the first provincial government under the US regime in
Benguet [appointment of governor, secretary and inspector by the commission]
Act Nos. 82 & 83 – the commission severely curtailed the electoral franchise for
peoples it had officially deemed to be civilized or at least “Christian”
Act No. 387 [4/9/1902] – establishment of local civil government of Nueva Vizcaya
which brought about more disenfranchisement; among the policy
recommendations: keep Ifugao in contact with Americans by drafting the men into
the Philippine military on a 6-month rotational basis
 TOWNSHIP GOVERNMENTS &
SPECIAL PROVINCES
The Nueva Vizcaya model allowed Worcester an opportunity to secure his authoritarian grip
over un-Hispanized populations outside of Moro provinces – reaching as far as Ilocos Sur, and
Misamis to name a few;
Act Nos. 1396 & 97 – established colony-wide policy for provincial and municipal governments
in non-Christian areas north of Muslim Mindanao
Special Provincial Government Act (SPGA) & Township Government Act (TGA):
drafted by Worcester which repealed all previous legislation on local gov’ts in Non-Christian, non-
Muslim areas and the act organizing the Moro Province
Placed under the direct control of American officials at least 20% of colony’s population and over ½ of
its natural resource base; there was a policy of tax exemption
Why? “the wild nature of un-hispanized peoples required special forms of governance” so these laws
allowed the SOI to appoint all local government heads
 TOWNSHIP GOVERNMENTS &
SPECIAL PROVINCES
Provincial Board decided that inhabitants of any township or settlement have advanced
sufficiently in civilization and material prosperity to make such a course possible, it was
authorized to remove existing tax exemptions but non-Christian tribes were not automatically
exempted from all taxes
So by 1908, 20,000 Ifugao men were paying their taxes by way of manual labor
Act No. 1397 – eligible voters during that time could be disqualified for being delinquent in
the payment of taxes
Neither the SPGA nor the TGA made any provision for providing the process, let alone the
compensation, to peoples unwillingly removed from their ancestral domains:
no un-Hispanicized group was ever certified as having advanced sufficiently in civilization
criteria for such a determination were purely subjective, and had it been made, Worcester's
political control over the areas covered would have been put at risk.
 MORO PROVINCE: U.S. ARMY ENCLAVE
Worcester envisioned that the BNCT would be his primary control mechanism over all un-
hispanized peoples
Initially, relations between Moros and U.S. Soldiers were friendly
U.S. Brigadeer General John C. Bates entered into a formal written agreement with the
Sultan of Sulu on 8/20/1899 where the Sultan agreed to sovereignty of the United States over
the whole archipelago of Jolo in return for, among other things, monthly salaries payable to
the Sultan and other Tausug leaders – but this was eventually abrogated by Roosevelt
But on 10/30/1899 – Mindanao, Sulu Archipelago and Palawan were placed under a newly
created Military District of Mindanao and Jolo which was re-designated as Dept. of Mindanao
6/15/1903 – Moro Province was established and existed concurrent with the military
department [Act No. 787 and 1283] where it was under the direct supervision of the Civil Gov.
 MORO PROVINCE: U.S. ARMY ENCLAVE
U.S. officials assumed that the indigenous populations within the Moro Province possessed
a sufficient body of customary laws for resolving conflicts and otherwise preserving peace
and order
Thus, the Legislative Council was empowered to collect and codify customary laws of the
Moros to be enforced in various parts of the Moro Province which shall apply in all civil and
criminal actions arising between Moros. But in all civil and criminal actions arising between
non-Christian tribes other than Moros, Act of Congress shall govern [Act No. 787]
10/6/1905 – the Legislative Council adopted General Wood’s observations that “Moros
and other savage peoples have no laws,” which led to the establishment of Tribal Ward
Courts
12/15/1913 – control over the Moro Province passed into the civilian hands and the
following year it was reorganized as the Department of Mindanao and Sulu [Act No. 2408]
 WORCESTER: WHITE APO
Secretary Worcester wanted to possess the same powers in Islamized areas that he
exercised in other non- Christian territories
He waged a vigorous campaign to at least expand his turf by establishing a special
province in northcentral Mindanao.
Act No. 1683 - during August 1907: the commission split the Bukidnon plateau off
from the regular province of Misamis and incorporated it into the Special Province of
Agusan
Governor Gallman under the tutelage of Worcester was able to garner respect as the
supreme leader and decision-maker in the province by developing a “highly
personalized, loosely structured, two track legal system which utilized varying degrees
of Ifugao and American Law.”
INVISIBLE PEOPLES AND THE PUBLIC DOMAIN BUREAUCRACY
CHAPTER XIV
 HIGHLIGHTS
US Government was legally bound by the 1989 Paris Peace Treaty which
declared that the Philippine cession cannot in any respect impair the property
or rights which by law belong to the peaceful possession of property of all
kinds, of provinces, public or private establishments, etc and other
organizations capable of possessing such properties
During this time, lands of the public domain predominantly existed
Insular cases (May 1901) which held that the US Constitution did not extend
to the Philippine Islands and its peoples
Bureaucracies in land use, natural resources