S. Lily Mendoza

S. Lily Mendoza is a Kapampangan-born Filipina and currently resides in Waawiyatanong (aka Detroit, Michigan). She is Full Professor of Culture and Communication at Oakland University in Rochester, Michigan and is known for her pathbreaking work on the politics of indigeneity particularly within the Philippine diasporic and homeland context. She is the author of books and essays exploring questions of identity and subjectivity, cultural politics in national, post- and trans- national contexts, discourses on indigenization, ecology, and the cultural logic of modernity and civilization. Among her book publications are Between the Homeland and the Diaspora: The Politics of Theorizing Filipino and Filipino American Identities, Back from the Crocodile’s Belly: Philippine Babaylan Studies and the Struggle for Indigenous Memory, and, most recently, Decolonizing Ecotheology: Indigenous and Subaltern Challenges. Currently, she serves as the Executive Director of the Center for Babaylan Studies (CfBS), a movement for decolonization and indigenization among diasporic Filipinos.

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Introduction

The Philippines has over 14-17 million remaining Indigenous peoples belonging to an estimated 110 ethnolinguistic communities (between 10-20% of the total population). It also boasts of some of the most progressive legislation in the world when it comes to protecting the rights of Indigenous Peoples. One such law is the Indigenous Peoples Rights Act (IPRA) of 1997 with the National Commission on Indigenous Peoples (NCIP) as its implementing arm. Yet despite such legislation, the Philippines is notorious for having one of the highest rates of murder of Indigenous land protectors in the world (alongside Brazil), not to mention, the  incidence of dispossession and displacement of tribes that happen to be “in the right of way” of mining, dam-building, tourism, and other development projects. In previous writing (Mendoza, 2020), I have noted how the only relation imagined by the Philippine state with its Indigenous populations is that of assimilation, never recognition of their autonomous rights or sovereignty. I have tracked how the government-sanctioned imperative to “keep up” with the rest of the civilized world actively (re)produces such populations as wards of the state, in need of incorporation into the national polity, celebrating their otherness only for tourism purposes. And even among well-meaning and justice-oriented Filipino academics wishing to “indigenize” the schools’ curriculum, the prevailing sentiment tends still to be that of patronage, with the driving impetus being that of “helping rescue our exploited tribal kin” out of their impoverished conditions that, perchance, they, too, might benefit from the fruits of progress and technological advancement “just like the rest of us modernized Filipinos.” And as the nation-state presses forward—climate chaos notwithstanding—in its determined drive to achieve economic growth and development at all cost,1 Indigenous dispossession becomes expedient and necessary “for the sake of the greater good.”

Such stark policy disconnect and contradiction cannot be accounted for merely by reference to “lack of good governance,” i.e., the notion that if only the right people were elected into office, then the implementation problem would be taken care of. The roots of the problem run much deeper—reaching back not only to the foundational land and tenure laws arbitrarily instituted in the country as part of colonial era legislation but, I would argue, to the very emergence of the Philippine nation-state—post-independence—not as a liberatory force for good, but, unwittingly, as a continuing armature of domination and conquest, this time, vis-a-vis its own indigenous populations. This it does in its unqualified adoption of the notorious Doctrine of Christian Discovery (DOCD)—known as the Regalian Doctrine in its Spanish iteration—that served as Europe’s instrument of colonial genocide and theft of Indigenous territories around the globe. As variously argued elsewhere in this series of essays, despite the DOCD being nothing more than a legal fiction and a religious contrivance conjured literally out of thin air, its material and symbolic power continues to grind on inexorably in many places around the globe as a destructive force majeure, its supremacist and expansionist ideology exploding worlds and introducing a death dynamic on the planet (whose end logic might well earn Achille Mbembe’s (2019) usage of the term “necropolitics” in the contemporary times). Referred to as “a perfect marginalization tool” (Lynch, 2011, p. 9) it is one that has yet to be challenged in any meaningful way up to the present moment. As legal scholar Owen J. Lynch (2011) observes ruefully:

[Despite] [t]he constitutional foundation for popular sovereignty [being] reiterated over a century and a half later in the Constitution of the Philippine Republic…the transition of the Philippine state from a colony to a republic resulted in little change…. Instead, the new republic largely mirrored the policies and designs of the former colonial government….(P. 2)

I submit that a continuing source of aggravation in state-Indigenous relations in the Philippine case is the entrenchment of the logic of the DOCD in the country’s  land and property laws in the form of the Regalian Doctrine or Jura Regalia. The term “regalia” derives from the Spanish crown’s assertion, upon its takeover of the islands beginning in the 1500s, of its right to ownership of all lands by sheer dint of “discovery” and conquest. As stated in the Laws of the Indies, the body of laws promulgated by the Spanish crown in the 16th, 17th, and 18th centuries for the government of its colonial possessions in the Americas and elsewhere outside Europe (including the Philippine islands):

We having acquired full sovereignty over the Indies, and all lands, territories, and possessions not heretofore ceded away by our royal predecessors, or by us, or in our name, still pertaining to the royal crown and patrimony, it is our will that all lands which are held without proper and true deeds of grant be restored to us according as they belong to us, in order that after serving before all what to us or to our viceroys, audiencias, and governors may seem necessary for public squares, ways, pastures, and commons in those places which are peopled, taking into consideration not only their present condition, but also their future and probable increase, and after distributing to the natives what may be necessary for tillage and pasturage, confirming in them what they now have and giving them more if necessary, all the rest of said lands may remain free and unencumbered for us to dispose of as we wish. (In Baleva, 2019, p. 112, itals. in the original)

The institution of such a legal fiction of possession and ownership by the subterfuge of “discovery” and conquest did not stop with the ending of Spanish rule in the wake of a nationwide revolutionary uprising that lasted from 1896 to 1898. Rather, it was merely carried over and reinforced by the United States colonial administration upon its spurious “acquisition” (from Spain) of the Philippine archipelago at the turn of the 20th century.2 Worse, it was subsequently adopted in toto by the postcolonial Philippine government with the enshrinement of its tenets in the country’s constitution (all across its 1935, 1973, and 1987 iterations) with the state taking over as successor administrator, thereby resulting in the “effective negation of the nation’s Indigenous cultures and heritage” (Lynch, 2011, p. 8). Notwithstanding the growing attention in contemporary literature (cf. Baleva, 2019; Belgica, Feb. 9, 2023;  Cuasay, July 2003; Cuasay, 2005; Lynch, 1988, 2011; Maentz, 2022, among others) to the doctrine’s saliency in matters of ongoing (and increasing) tensions between indigenous assertions of rights and the state’s prioritizing of corporatist interests, there has yet to emerge, particularly within Philippine legal studies, a concerted and thoroughgoing effort and commitment to interrogate the ideological underpinnings of the Doctrine. As Lynch (2011) one more time rues:

After more than half a century of political independence, substantive continuity between the colonial and politically independent Philippine state…raises a host of questions regarding the nature of the Philippine social contract. Perhaps foremost is the question of when, if ever, was there any substantive democratic reconstitution of the Philippine State that genuinely considered and reflected the aspirations, rights, and potentials of the entire citizenry, especially the poor, rural, majority. (P. 3)

I submit that such demystificatory work, particularly in the public discourse, is an absolute necessity if more just and equitable modes of relation were ever to be opened up and reimagined (between the state and the country’s assimilated majorities, on the one hand, and the nation’s unassimiliated minoritized Indigenous populations, on the other). And therein lie the stakes in this revisitation: for the State to repudiate its role as a successor colonial power and for Indigenous communities to be restored their right to their ancestral domains, there has to be a thoroughgoing recognition of the “undemocratic origins, evolution, and effects of many contemporary laws and legal concepts” (Lynch, 2011, p. 18) as rooted in the Regalian Doctrine. For as long as its colonialist oeuvre remains entrenched and operating in capillaric fashion within the country’s state institutions (and in the popular imagination), any progressive legislation pertaining to Indigenous peoples is likely to simply multiply the complexities and contradictions.

Philippine Indigenous Life Against the Grain

The discourse of the Regalian Doctrine, as is the case with the DOCD, presents an interesting — if damning and distorting — counter-mirror to Indigenous life. When Spain first came to what are now known as the Philippine islands,3 it found diverse ethnic groups of people already living in loosely-federated coastal village settlements called barangay (a word for a traditional boat), numbering anywhere from 50 to 100 families and aggregating mostly through kinship relationships. But as well, numerous nomadic hunter-gatherer tribes4 believed to be the lands’ original inhabitants were known to have thrived across the islands, although increasingly  driven inland into the mountains by the influx of Malay farming settlers (Steere, 1898). Although inter-island trading was not uncommon among the former communities, the Spanish conquerors found scandalous the total absence of private ownership even among the settled farming native communities, to wit:

Baranganic society had one distinguishing feature: the absence of private property in land. The chiefs merely administered land in the name of the barangay. The social order was an extension of the family with chiefs embodying the higher unity of the community. (Constantino in Baleva, 2019, p. 109)

Consequently, as Lynch (1988) maps what eventually became the legal landscape under Spain:

The primary innovation introduced by the Spaniards concerning legal rights to natural resources was the concept that land could be exclusively owned by individuals. In other words, “the outstanding novelty” was not that the Crown claimed to own all the land. Rather, it “was the gradual adoption of the European principle of individual ownership.” (P. 82)

This was a radical concept that effectively transformed the islands’ commons to commodities that can be privately owned, bought, exploited, and sold. And given that assertion of ownership required formal documentary registration and titling  to private persons, with the burden of application for such requiring literacy and submission to the legal requirements, the disadvantage (to put it mildly) to Indigenous peoples is patently glaring: the rendering of many native inhabitants squatters in their own homelands with the onus on them to have to struggle interminably from thereon to have their right to their ancestral domains recognized and respected. Notwithstanding royal proscriptions against the usurpation of indigenous lands (i.e., “you shall not occupy or take possession of any private property of the Indians”), Baleva (2019) notes,

“[R]eal property held in common increasingly became antiquated and supplanted by private ownership that was evidenced by document titles. The Real Audencia in Manila, which was tasked to safeguard customary property rights, and ensure that possession of ancestral domains that were illegally conveyed was reinstated to their rightful owners, was a dismal failure. The Crown’s policies that were favorable to indigenous peoples were weighed against what was required for the perpetuation of the colony. (P. 110, emphasis added)

As many Philippine Indigenous tribes put it, “Gradually, control over our ancestral lands was lost as the settlers came armed, not with guns, but with titles” (in Sebastian in Maentz, 2022, p. 65).

The introduction of the encomienda system in 1594 under King Philip II in furtherance of conquest and colonization was part of the whole process of land privatization and enclosure of the commons. Spanish conquistadors, friars, local nobles (principalia), and settlers were provided land and given legal right to exact tribute from the indigenous populations (in the form of gold, food, cloth, minerals and labor) in exchange for purported protection and instruction in the Christian faith. The brutal (virtual slave) system was finally abolished in 1720 amidst protests and reports of rampant abuses by the encomenderos, but not before its century and a half of existence came close to wiping out all memory of traditional and indigenous knowledge of a different order of life and relation to land prior to colonization (Guzman, R., Sept. 15, 2021). As Lynch (1988) concludes, “The colonial government over a span of three and a quarter centuries created and upheld a documented private property regime” (p. 84) where there was nonesuch previously.

There is not enough space here for a more nuanced recounting of the countless convolutions, confusions, and conundrums generated by this concocted European-derived private property regime—firmly kept in place throughout the American occupation (1898-1946) and by the Philippine government post-independence—on peoples with a very different relation to land and orientation to life. But the single most devastating disruption that could (and can) be visited on such peoples is displacement from the very soils that have birthed and fed them.  As Kalinga warrior chieftain and leading opponent of the World Bank-funded Chico River Basin Dam Project Macli-ing Dulag declared in protest before he was subsequently assassinated by military forces in 1980:

You ask if we own the land. And mock us. “Where is your title?” When we query the meaning of your words, you answer with taunting arrogance. “Where are the documents to prove that you own the land?” Title. Documents. Proof (of ownership). Such arrogance to speak of owning the land, when you shall be owned by it. How can you own that which outlive[s] you?…(In Baleva, 2019, p. 141)

Redefining Human Being: Christian and Civilizational Re-engineering

In perusing the wrenching legal convolutions stemming from the anomalous Regalian Doctrine across both colonial and postcolonial regimes, one finds that the imposition of a property regime is not only productive of the colonial project of wealth extraction and imperialist expansion but constitutive of a new mode of human being that would be compatible with the vision of a more prosperous, progressive, ever-advancing, ever-improving new world populated by highly-evolved human “subjects,” shaped by and aspiring to the entire agenda of what we now call Modernity first beginning to marshal its novelties on the world stage after 1492. Such subjectivity is mandatorily Christian; ruled by a form of rationality detachable from, and unconcerned with feelings, passions, and intuition; acquisitive, with a “natural desire to accumulate wealth, enjoy a life of material comforts, and master nature, (based on the biblical understanding that the end of human life is the exercise of mastery and dominion over the earth); “inherently calculating, utilitarian, result-oriented…, concerned with maximizing possible advantages from a given unit of human effort; individualistic, not beholden to relationships of interdependency” with  either human or more-than-human others; and finally, invested in the notion of private ownership, according to Locke’s own words, “‘God gave the world to man in common, but…it cannot be supposed he meant it should always remain common and uncultivated.  He gave it to the use of the Industrious and Rational…’” (in Mendoza, 2013, pp. 11-12).

Thus the terms “uncivilized tribes,” “non-Christian,” “of a low grade of civilization, usually living in tribal relationships apart from settled communities,” “citizens of low degree of intelligence,” etc. (in Baleva, 2019, pp. 126-127) that littered Supreme Court decisions (particularly during the American period) became explicit codes for denoting—in the minds of judges, state officials, elites, and, ultimately, the mainstream public—any group of people that resist assimilation and stubbornly persist in their “backward” and “anachronistic” ways of being. As one such ruling5 stated:

The majority opinion says “they are restrained for their own good and the general good of the Philippines.”

They are made to accept the civilization of the more advanced Filipinos whether they want it or not. They are backward and deficient in culture and must be moved from their homes, however humble they may be and “brought under the bells” and made to stay on a reservation.” (in Baleva, 2019, P. 127).

Embedded within this understanding of human subjectivity is a civilizational narrative that, at bottom, is supremacist in essence and orientation. But not only is supremacy presupposed toward other people groups, but, first and foremost, toward the more-than-human world. Here, the category “human” ceases to denote a natural being but elevates the existence it references above the state of nature as its ruler, conqueror, and dominator. So much so that modes of living premised on a respectful, sacred, non-conquering relationship with the natural world (e.g., hunting-gathering, pastoral nomadism, and subsistence farming lifeways that prioritize living close to land and are mindful of limits6 and reciprocal obligations with their land bases) are now anathema. They are deemed to be “animal-like” and thus desacratory of the supposedly exalted place of humans as “just a little lower than the angels” (Psalm 8:4-8) within the prescribed Christian understanding .

Quintessentially ethnocentric in worldview orientation, this civilizational narrative  is a perfect expression of what Argentinian critical theorist Walter Mignolo (April 3, 2007) refers to as a logic controlled by a “totalitarian notion of Totality”—one that “negates, excludes, and occludes difference and the possibility of other totalities” (p. 451). In other words, this is a worldview that permits no alternative to its vision of human being, reducing all that came before it to mere “savagery” and “primitivism” (as in the repeated use of the terms  “wild tribes,” “uncivilized,” “remontados7. As a supremacist conceit , its exclusive notion of the “good life” is confined to that of city-state living—a social order built on settled monocrop agriculture, centralized government, surplus product hoarded in a regime of private ownership, organized warfare, standing armies, hierarchically-promulgated religion (i.e., Christianity), and elite commitment to literacy, technological advancement, and endless growth. Treating land and nature as mere “resource” and enshrining comfort, convenience, and wealth accumulation as the highest good (and evidence of God’s manifest blessing), its singular outcome is nothing short of the planet’s ruination. Having foreclosed consideration of those antique cultures that, over millennia, have achieved relative success in evolving richly diverse modes of organizing human life without devastating their land bases, modern hubris leaves our imaginations severely impoverished and bereft of alternatives.

The intractability of this supremacist civilizational discourse (as embodied in the Doctrine of Christian Discovery and its Spanish articulation in the Regalian Doctrine) now stands as one of our greatest existential challenges. But even the most progressive legal minds remain captive to its hubris, as the 2005 United States Supreme Court ruling in the Sherrill v Oneida Indian Nation of New York so damnably demonstrates. Denying the Oneida Nation tribal immunity over their ancestoral and territorial lands in that case, Justice Ruth Bader Ginsburg reasoned that “this land, initially vested to European powers through the Doctrine of Discovery, had simply been out of the Oneida’s control for too long, rendering sovereignty in this instance an ‘ancient’ and untenable concept” (Nîtôtemtik, Sept. 25, 2020). “Its embers,” she added, had “long ago gr[own] cold” and could not now be “rekindled” (in AIISP, Jan. 4, 2021). It is this unwillingness to disrupt the status quo that keeps this devastating Doctrine alive and firmly entrenched institutionally. And all of this while the planet’s very survival hangs in the balance and the killing and dispossession of the last keepers of the earth, i.e., the world’s Indigenous peoples, continues unabated.

Lamentably, in the Philippine case, the situation in this regard is no more hopeful. As Bae Naraval, an adopted Indigenous leader among the Matigsalug Tribe in Southern Philippines remarked in an interview (concerning the Tribe’s collective application for ancestral land titles with the National Commission on on Indigenous Peoples [NCIP]):

We think we have the NCIP but we are not really protected by the NCIP. We think we have the government, but we’re not really protected by the government. They are even the ones who become the enemies of the Tribes, the local government. So instead of the Tribes fighting for their area, they opt not to anymore. How can they fight? They don’t even have food for themselves. How can they afford a lawyer? Most of those imprisoned here are members of the Tribe who fight for their area. You are the owner of the area because it is within the ancestral land, you are part of the Tribe, but you are the one imprisoned. And the rich just smile and build their resorts. Until today, nobody is stopping the bulldozers that enter the ancestral land. (Naraval in Maentz, 2022, pp. 18-19)

Ultimately, if we truly understood the stakes, we would endeavor to make the fight of our Indigenous kin our own (because ultimately it is!) and face our own profound culpability. For those of us no longer living indigenously and now occupying land stolen by fiat from other people, our relationship is not abstract but concrete.  We, the modernized, urbanized, assimilated subjects of empire living well-resourced lifestyles stand as beneficiaries of this  ongoing dispossession and, in regard to the reality of our collective planetary predicament, it is now becoming irrepressibly clear that “[t]he fight against mass extinction and the fight of Indigenous communities for survival and sovereignty is one and the same” (Sebastian in Maentz, 2022, p. 5).

Bibliography

Footnotes

  1. As in the much-touted “Build, Build, Build” program of former President Duterte and now, the “Build, Better, More’ infrastructure program” of the newly-elected President Bong Bong Marcos, son of the former dictator, Ferdinand Marcos (Quismorio, Aug. 23, 2022). ↩

  2. On June 12, 1898, following the successful routing of the Spanish army (save for some isolated strongholds in parts of Manila) in a nationwide revolutionary uprising, the Philippines declared its independence from close to 350 years of Spanish rule, thus becoming the first republic in Asia. The United States, abiding by the DOCD and deeming the newly liberated territory as now “empty” (i.e., unoccupied by a European power, the native inhabitants effectively not human enough to count) would find its opportunity to finally join the superpower land grab. Spain, at this point, loath to surrender to mere “Indios,” decided to strike a deal with the United States in the 1898 Treaty of Paris, conceiving of a mock battle where it would surrender instead to the U.S. and “cede” the Philippines in exchange for 20 million dollars. It was now the U.S.’s turn to assert “ownership” over the Philippine archipelago. ↩

  3. The first expedition arrived in 1521 via Spain-sponsored Portuguese explorer Ferdinand Magellan’s voyage (his stint cut short by his killing by a poisoned arrow in a hostile encounter with the natives), and then again in 1565 with the arrival of Miguel Lopez de Legaspi who served as the first Governor-General of the Philippine islands. ↩

  4. Collectively, they were termed “Negritos” due to their dark skin, kinky hair, and relative smallness of stature (cf. Headlund, Oct. 1987) ↩

  5. As can be seen  in the case of the March 7, 1919 Rubi Decision, in which a petition for habeas corpus in favor of Rubi and other Manguianes of the Province of Mindoro who alleged that the Maguianes are being illegally deprived of their liberty by being held against their will on a certain reservation was denied (c.f. The LawPhil Project, n.d.). The case exhibited a quite telling “judicial construction” and imposition of the “determination of the essence” of the identity of native Filipinos in its outcome. Such practices of relocating Indigenous populations to “reservations” date back to the Spanish Colonial Government policy of reducciones, wherein Indios were forced to reside “within hearing distance of the peals of the Church bell” and in concentrated numbers (Baleva, 2019, pp. 125-126). The resettlements were meant to facilitate management, control, and surveillance of the colony by a small number of armed Spanish constabulary. ↩

  6. Such as in the observance of the Indigenous practice of mari-it, places in the Wild watched over by taglugar, (spirit guardians) and understood as off-limits to humans (Magos, 1997; Nalangan, 2018). ↩

  7. “[M]en who have again mounted the saddle of savagery” (Steere, 1898, p. 407), ↩

SUGGESTED CITATION

S. Lily Mendoza, "The Regalian Doctrine: The Philippine Case," Doctrine of Discovery Project (24 April 2023), https://doctrineofdiscovery.org/blog/philippine-doctrine-discovery/.

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