Indigenizing Law or Legalizing Governmentality? more

INDIGENIZING LAW OR LEGALIZING GOVERNMENTALITY? POSTCOLONIAL LEGAL HYBRIDITY AND THE PHILIPPINE INDIGENOUS PEOPLES RIGHTS ACT Peter Cuasay The Indigenous Peoples Rights Act (IPRA) of 1997 and its Implementing Rules and Regulations (IRR) of 1998 legislate enormous changes in the state-building project of the Philippines. The law was meant to secure ancestral domains and a full slate of human and civil rights for the 10-12 million members of indigenous cultural communities (ICC). Rectifying “500 years of historical error,” and involving 8-10 million hectares (out of a national total of 30 million) that represent as much as 80% of surviving natural resources, the dimensions of full implementation are staggering. The law has survived a Supreme Court challenge largely supported by mining interests. The mandated National Commission on Indigenous Peoples (NCIP) is now operating, with the additional aid of a presidential advisory office created by the present administration. Legitimated by the discourse of rights, sustainability, and cultural integrity (Niezen, 2003), IPRA appears to consolidate a prevailing moral geography. Yet this Moral reduess occurs alongside globalization of market triumphalism, spurring critical inquiry into the effects of “indigenizing” state policies. In late modern conditions of globalizing markets, we are repeatedly told that states are fading and sovereignty is giving way to some new postulate of revisable social contracts. Yet this breathless wait for the post-modern, post-sovereign world order overlooks an inner complexity of sovereignty itself. Usually, attention has been paid to imperium, the plenary powers of the conquering state. But another aspect of sovereignty is dominium, the state powers of ownership. There is a temptation, as Kingsbury has shown, to leap beyond sovereignty to a novel neoliberal utopia where sovereignty would become “a summation of the operations of the market,” or “a variable rather than 32 Managing Projects for Sustainable Livehoods Rural Development in Lao PDR: a parameter.” (Kingsbury, 2002) This chapter argues it is really a shift in emphasis from imperium to dominium, taking place within a specific legal genealogy of sovereignty itself, that plays a defining role in many commons problems of our time. Hence this is a more complicated story than an evolutionary progress. We do not rise from conquest and booty to property law and management, nor do we automatically witness growth of rights and equality, because imperium and dominium interact to produce hybrid outcomes. I will trace this interaction in the Philippine Supreme Court case of the Indigenous Peoples Rights Act (IPRA) to contrast two possible hybrids. In the first, some separation is maintained between imperium and dominium, creating a disinterested, even apparently moral objectivity that can be recalled in an effort to redress historic grievances. In the second, opposing view, dominium substitutes for imperium, and collective national interest theoretically prevails over the property interests. Since these outcomes roughly balanced at court, ending in a tie, I suggest the balance may ultimately tip in a third direction. With the help of a Thai example, a novel hybrid creature of neoliberal self-regulation emerges: a regulated exchange between imperium and dominium that promises to devolve ruling power down to sub-state agents, but snatches ownership away as the cost of failing self-control. Instead of ending sovereignty, this is a kind of endless cancellation of sovereignty that is paradoxically maintained in the act of consuming or betraying itself. Put another way, the enumerated rights in instruments like IPRA that indigenize law are only one side of the coin. The other face is continued denial of the popular sovereignty making such rights effective. I turn to the legal foundations of this dark side by appealing to the indigenous, historical experience that war and peace are not so different when legalisms continue the despoliation of war by other means. Hybrids of imperium and dominium are symptoms of a larger slippage, the murky border between war and peace that renders the life of so many indigenous communities an unceasing trial in a court of everyday battles. SEPARATION OR NOSTALGIC IMPERIUM The legal basis for finally granting titles for ancestral domains and lands to indigenous cultural communities in the Philippines rests on a theory of native title. IPRA derives this theory from the case of Cariño v. Insular Government, which was decided by the US Supreme Court in 1909. Thus instead of giving legal voice to a variety of customary law regimes for considering ownership and resources, a single doctrine of native title attempted to cover all cases. This Cariño Doctrine had to overcome the prevailing Regalian Doctrine, which holds all untitled land in the archipelago was under control of the Spanish Crown and therefore passed to the US colonial government as public lands before being entrusted in turn to the independent Philippine State. Rural Development in Lao PDR: Managing Projects for Sustainable Livehoods 33 Immediately after IPRA successfully passed, the specter of its being some kind of upcountry land-reform-in-earnest drove Cesar Europa and Isagani Cruz to file a Supreme Court case against its constitutionality. Symbolized in names of Spanish form, Caesar, Europe, and the Cross all wanted to stop indigenous peoples’ rights on the steps of the high court. Reversing Ramos support, the Estrada administration sat back to make questionable appointments to the NCIP. A social drama now unfolded in the same general period as the ouster of Estrada, climaxing in a second “people power” event (“EDSA 2”) in early 2001 (the ouster of Marcos, retrospectively “EDSA 1”, was in early 1986). The Supreme Court upheld IPRA by the narrowest possible margin-a 7 to 7 tie vote that meant the constitutionality challenge failed-on December 6, 2000. Very soon after, Macapagal-Arroyo took power, issuing Executive Order 1 February 20, 2001 to create an Office of Presidential Adviser on Indigenous Peoples (OPAIP). The Supreme Court battle took place against a complex and ambiguous revolutionary backdrop, with discursive effects that register in legal rationality. In this social context, a theory of native title contradicting the Regalian Doctrine threatened to open crucial lapses in national myths of origin and sovereignty. Forgotten in the simple handing over of ownership from one conqueror to the next successor is the US colonial enlargement of its control through the Bureau of Non-Christian Tribes (Kingsbury, 1998: 429) and the legalistic way Marcos bolstered the doctrine to enhance his state. The Regalian Doctrine of a smooth transmission of sovereignty over the public lands also serves the national origin myth promoted in the Philippine Centennial Expo of 1999. By conflating the conflicts against Spain and afterwards the United States into a singular revolutionary origin in 1899, the myth obscures the ambiguous revolution of changing colonial masters (Bankoff, 2001), a myth requiring further suturing given the ambiguous revolutions of the two EDSA/People Power events. The NCIP in its defense of IPRA wound up unstitching these mythical sutures. As the Dean of the University of the Philippines (UP) Los Baños put it, “Land and resources that never fell under the Spanish cross or sword were never part of the archipelago that Spain ceded to the US in 1899. [They are] not encompassed by the legal presupposition of ‘public lands’. They never were.” (Malayang, 2001: 670) From a state viewpoint, such stark negation in the anti-Regalian argument is frightening (and might result in as much as 30 percent of the country being ancestral domain and not state property). Against the Regalian Doctrine, the theory of native title or the Cariño Doctrine tried to shelter native lands from the sovereign power of the successive rulers-Spain, US, and the Manila-centered Philippine state. In Cariño, sovereignty was analyzed into imperium and dominium in order to place the Regalian theory under the latter, thus giving scope to the former to make native title good. 34 Managing Projects for Sustainable Livehoods Rural Development in Lao PDR: Sovereignty is the right to exercise the functions of a State to the exclusion of any other State. It is often referred to as the power of imperium, which is defined as the government authority possessed by the State. On the other hand, dominion, or dominium, is the capacity of the State to own or acquire property such as lands and natural resources. Dominium was the basis for the early Spanish decrees embracing the theory of jura regalia. The declaration in Section 2, Article XII of the 1987 Constitution that all lands of the public domain are owned by the State is likewise founded on dominium. If dominium not imperium is the basis of the theor y of jura regalia, then the lands which Spain acquired in the 16th century were limited to non-private lands, because it could only acquire lands which were not yet privately-owned or occupied by the Filipinos. Hence, Spain acquired title only over lands which were unoccupied and unclaimed, i.e. public lands. (Kapunan Opinion, note 86) Thus it was dominium transferred between states that gave them title to public lands, but not to privately held land, including the private but community property IPRA wanted to recognize with native title. This native land was emphatically not acquired from the state as public land turned into private property: it had always been private even though in the native concept of ownership it was also held in common and used according to custom. A distinction must be made between ownership of land under native title and ownership by acquisitive prescription against the State. Ownership by virtue of native title presupposes that the land has been held by its possessor and his predecessors-in-interest in the concept of an owner since time immemorial. The land is not acquired from the State, that is, Spain or its successors-in-interest, the United States and the Philippine Government. There has been no transfer of title from the State as the land has been regarded as private in character as far back as memory goes. In contrast, ownership of land by acquisitive prescription against the State involves a conversion of the character of the property from alienable public land to private land, which presupposes a transfer of title from the State to a private person. Since native title assumes that the property covered by it is private land and is deemed never to have been part of the public domain, the Solicitor General’s thesis that native title under Cariño applies only to lands of the public domain into agricultural, forest or timber, mineral lands, and national parks under the Constitution is irrelevant to the application of the Cariño doctrine because the Regalian doctrine Rural Development in Lao PDR: Managing Projects for Sustainable Livehoods 35 which vests in the State ownership of lands of the public domain does not cover ancestral lands and ancestral domains. (Kapunan Opinion, 92) A separation was thereby set up between Regalian Doctrine, public lands, and dominium, on one hand, and the Cariño Doctrine, private but common property, and imperium, on the other. The source of recognition for native title was located in imperium by the very appeal to the precedent set by the imperial power. The recognition derived from the conqueror’s power to make rules, for the benefit of the inhabitants or otherwise, even for those groups and areas to which the imperial might of the toppled predecessor had never extended. Places unconquered by vanquished Spain could still be liable to the judgments of the US victor. In Cariño, the US Supreme Court said the old principle (read Regalian Doctrine) was but theory and discourse, and as the new sovereign, the US could base their approach on actual fact. Their imperium could give force to a legal distinction between the dominium of the insular government another form native ownership. It is true that Spain in its earlier decrees embodied the universal feudal theory that all lands were held from the Crown, and perhaps the general attitude of conquering nations toward people not recognized as entitled to the treatment accorded to those in the same zone of civilization with themselves. . . . [But] When theory is left on one side sovereignty is a question of strength and may vary in degree. How far a new sovereign shall insist upon the theoretical relation of the subjects to the head in the past and how far it shall recognize actual facts are matters for it to decide. The Province of Benguet was inhabited by a tribe that the Solicitor General, in his argument, characterized as a savage tribe that never was brought under the civil or military government of the Spanish Crown. It seems probable, if not certain, that the Spanish officials would not have granted to any one in that province the registration to which formerly the plaintiff was entitled by the Spanish laws, and which would have made his title beyond question good. Whatever may have been the technical position of Spain, it does not follow that, in the view of the United States, he had lost all rights and was a mere trespasser when the present Government seized his land. The argument to that effect seems to amount to a denial of native titles throughout an important part of the island of Luzon, at least, for the want of ceremonies which the Spaniards would not have permitted and had not the power to enforce. 36 Managing Projects for Sustainable Livehoods Rural Development in Lao PDR: The acquisition of the Philippines was not like the settlement of the white race in the United States. Whatever consideration may have been shown to the North American Indians, the dominant purpose of the whites in America was to occupy the land. It is obvious that, however stated, the reason for our taking over the Philippines was different. No one, we suppose, would deny that, so far as consistent with paramount necessities, our first object in the internal administration of the islands is to do justice to the natives, not to exploit their country for private gain. By the organic act of July 1, 1902, c. 1369, § 12, 32 Stat. 691, all the property and rights acquired there by the United States are to be administered “for the benefit of the inhabitants thereof.” . . . We hesitate to suppose that it was intended to declare every native who had not a paper title a trespasser and to set the claims of all the wilder tribes afloat. . . . But there still remains the question what property and rights the United States asserted itself to have acquired. . . . Every presumption is and ought to be against the Government in a case like the present. It might, perhaps, be proper and sufficient to say that when, as far back as testimony or memory goes, the land has been held by individuals under a claim of private ownership, it will be presumed to have been held in the same way from before the Spanish conquest, and never to have been public land. To summarize, IPRA tried to effect a separation between imperium and dominium. Spanish dominium did indeed pass public land to the conquering US and thence to the Philippine government. But US imperium was recalled with a certain nostalgia as legally grounding the redress of the indigenous peoples’ historic grievances of dislocation, expropriation, and disenfranchisement. Nostalgic staging of the legal precedent from 1909 exhorted the 1999-2000 court “to do justice to the natives.” Such nostalgic imperium found its sovereign prerogative need not stop at the Regalian theory of vanquished Spain, and could even limit dominium by positing an exempt class of property held under “native title.” SUBSTITUTION OR NATIONALIST DOMINIUM BAGUIO CITY—The government has resolved what the Supreme Court could not: Prescribe what natural resources indigenous Filipinos can actually own under the 1987 Constitution. Rural Development in Lao PDR: Managing Projects for Sustainable Livehoods 37 Horacio Ramos, director of the Mines and Geosciences Bureau (MGB) of the Department of Environment and Natural Resources, said a memorandum of agreement between Environment Secretary Elisea Gozun and Secretary Teresita Deles, lead convenor of the National Anti-Poverty Commission (NAPC), recognizes the indigenous peoples’ rights over all natural resources on Philippine soil. “The government needed a (solution) to the issue because various industries required a clear-cut rule on natural resource rights. So (Gozun and Deles) agreed to divide it evenly. The (indigenous Filipinos) own the top half of the land, while the government owns what is beneath the land,” Ramos said. A quarter of the mine claims applied for in 1999 crossed into ancestral lands or ancestral domain claims made by several communities in the Cordillera Administrative Region and in Mindanao, the Inquirer learned. (Cabreza, 2003) If Cariño and native title were elevated and validated in upholding IPRA, a new twist to Regalian theory was enshrined as well. For judicial opinions on both sides accomplished the strange feat of shrinking the contentious issue of ancestral domains down to a mere surface. The judgment produced the curiously layered or laminated situation that led to the negotiated split reported in 2003. The sword of Solomon, in this case, did divide the living land in two: native title could apply to ancestral domains that were never public lands, but state ownership must apply to all natural resources below or above this surface by principle of sovereign prerogative. Alongside this compression of domain to mere surface was an expansion of emphasis, not on the rights enunciated in law, but on the duties of the indigenous to act as ecological managers who would protect, maintain, and steward the riches they do not, legally cannot, own. Flattened domains, fattened duties. How did the court arrive at such conclusions? The meaning of ancestral domain clustered around notions of land as life and included the material, natural resources. The moral import of ancestral domain, native land or being native is “belongingness” to the land, being people of the land—by sheer force of having sprung from the land since time beyond recall, and the faithful nurture of the land by the sweat of one’s brow. This is fidelity of usufructuary relation to the land—the possession of stewardship through perduring, intimate tillage, and the mutuality of blessings between man and land; from man, care for land; from the land, sustenance for man. 38 Managing Projects for Sustainable Livehoods Rural Development in Lao PDR: The legal constructions by the Supreme Court erect a distinction between such life-giving land and the natural resources contained above or below, leading to a reconfirmation of state ownership over all natural resources. Ancestral domain under the concept of “private but community property” is reduced to an ancestral surface, a mere slice of land excluding subsurface resources. Against the holding of land since time immemorial, the anti-IPRA opinion declared: All Filipinos, whether indigenous or not, are subject to the Constitution. Indeed, no one is exempt from its all-encompassing provisions. Unlike the 1935 Charter, which was subject to “any existing right, grant, lease or concession,” the 1973 and the 1987 Constitutions spoke in absolute terms. Because of the State’s implementation of policies considered to be for the common good, all those concerned have to give up, under certain conditions, even vested rights of ownership. In Republic v. Court of Appeals, this Court said that once minerals are found even in private land, the State may intervene to enable it to extract the minerals in the exercise of its sovereign prerogative. The land is converted into mineral land and may not be used by any private person, including the registered owner, for any other purpose that would impede the mining operations. Such owner would be entitled to just compensation for the loss sustained. (Panganiban opinion) Indeed, the Cariño Doctrine was supposed to have passed away in favor of a nationalistic one enshrined in Constitutions, and thus ownership is a matter of surface rights alone. I submit that Cariño v. Insular Government has been modified or superseded by our 1935, 1973, and 1987 Constitutions. Its ratio should be understood as referring only to a means by which public agricultural land may be acquired by citizens. I must also stress that the claim of Petitioner Cariño refers to land ownership only, not to the natural resources underneath or to the aerial and cosmic space above. . . . Since RA 8371[IPRA] defines ancestral domains as including the natural resources found therein and further states that ICCs/ IPs own these ancestral domains, then it means that ICCs/IPs can own natural resources. In fact, Intervenors Flavier et al. submit that everything above and below these ancestral domains, with no specific limits, likewise Rural Development in Lao PDR: Managing Projects for Sustainable Livehoods 39 belongs to ICCs/IPs. I say that this theory directly contravenes the Constitution. (Panganiban opinion) Calling the IPRA version of unlimited, perpetual, and exclusive ancestral domains an “outlandish contention,” the legal thrust reduced domain to surface, and carved out absolute state ownership of all natural resources in the heights and depths. This runs quite counter to the separation of imperium and dominium that sought to maintain both public lands and a new concept of native title to private but common lands. It represents rather the substitution of dominium for imperium: the state owns all for the good of the nation in a conquest made by Constitutions, re-vesting the Regalian Doctrine in nationalist clothing, or an assertion of nationalist dominium. In upholding IPRA, the Supreme Court left both theories of revisionist or nostalgic imperium and nationalist dominium intact by severing surface (where native title held) and resources (where state prerogative overrules all). A major precedent, the case of Republic vs Court of Appeals, supposedly justified this weird flattened domain, the surfacing of a distinction between land surface and subsurface resources. This surface/depth splitting had actually been found to be disturbing in the original precedent, if it is examined more closely. . . . Possession [by the landowners] was not in the concept of owner of the mining claim but of the property as agricultural land, which it was not. The property was mineral land, and they were claiming it as agricultural land. They were not disputing the rights of the mining locators nor were they seeking to oust them as such and to replace them in the mining of the land. In fact, Balbalio testified that she was aware of the diggings being undertaken “down below” but she did not mind, much less protest, the same although she claimed to be the owner of the said land. The Court of Appeals justified this by saying there is “no conflict of interest” between the owners of the surface rights and the owners of the sub-surface rights. This is rather a doctrine, for it is a well-known principle that the owner of piece of land has rights not only to its surface but also to everything underneath and the airspace above it up to a reasonable height. Under the aforesaid ruling, the land is classified as mineral underneath and agricultural on the surface, subject to separate claims of title. This is also difficult to understand, especially in its practical application. Under the theory of the respondent court, the surface owner will be planting on the land while the mining locator will be boring tunnels underneath. The farmer cannot dig a well because he may 40 Managing Projects for Sustainable Livehoods Rural Development in Lao PDR: interfere with the operations below and the miner cannot blast a tunnel lest he destroy the crops above. How deep can the farmer, and how high can the miner, go without encroaching on each other’s rights? Where is the dividing line between the surface and the sub-surface rights? The Court feels that the rights over the land are indivisible and that the land itself cannot be half agricultural and half mineral. The classification must be categorical; the land must be either completely mineral or completely agricultural. . . . This is an application of the Regalian doctrine which, as its name implies, is intended for the benefit of the State, not of private persons. The rule simply reserves to the State all minerals that may be found in public and even private land devoted to “agricultural, industrial, commercial, residential or (for) any purpose other than mining.” Thus, if a person is the owner of agricultural land in which minerals are discovered, his ownership of such land does not give him the right to extract or utilize the said minerals without the permission of the State to which such minerals belong. The flaw in the reasoning of the respondent court is in supposing that the rights over the land could be used for both mining and non-mining purposes simultaneously. The correct interpretation is that once minerals are discovered in the land, whatever the use to which it is being devoted at the time, such use may be discontinued by the State to enable it to extract the minerals therein in the exercise of its sovereign prerogative. The land is thus converted to mineral land and may not be used by any private party, including the registered owner thereof, for any other purpose that will impede the mining operations to be undertaken therein. (GR L-43938, April 15, 1988) Thus the survival of both Cariño and Regalian doctrines after the 2000 decision on IPRA was a surface/depth split that had already been found impractical. Without drawing clear inferences, it seemed the Court was fumbling towards ancestral domains restricted not just to surfaces, but only those surfaces where no minerals had yet been found. Thus NCIP Administrative Order No. 3, dated October 13, 1998, exempted all leases, licenses, contracts and other forms of concessions within ancestral domains prior to the effectivity of NCIP AO No. 1 (IPRA’s Implementing Rules and Regulations) from the coverage of IPRA’s provisions on free and prior informed consent. (Mordeno, 2001) By substituting the nationalist dominium for the actual attainment of imperium, the state might recognize a native ownership from time immemorial by reserving full control of all natural resources in advance. The results were a Rural Development in Lao PDR: Managing Projects for Sustainable Livehoods 41 geobody only skin deep and a nationalist pretension as devastating as any conquest. The irony may be that just as doing justice to the natives can be cited with longing once the colonial period is past, the nationalist imperative to benefit the people might also acquire the power of a retrospective ideal after it too disappears. At present, the notoriously weak Philippine state, quite unable to follow Constitutional priorities of land reform and stewardship, is an instrument for transferring wealth upwards to rent-seeking elites and outwards to foreign corporations. But were the IPRA principle of working through customary laws seriously implemented, one can imagine contentious tribal councils orating about the need for a spirit of a higher public interest. This ghost of national interest of all the people would grow more vivid and compelling the further the nation recedes in memory, to be nostalgically idealized as it never really was. REGULATION OR SOVEREIGNTY EATS ITSELF There are indications that moving past the deadlock between separation and substitution as ways to relate constituent aspects of sovereignty, imperium and dominium, involves yet another hybrid outcome: a regulated exchange between them. Imperium is given up, in the form of allowing customary law, self-governance, new rights, etc, but the cost of failing to achieve by oneself the proper control a conqueror must impose is the loss of dominium back to the state. This encapsulates the paradox of granting rights while flattening domain to surface, for it has been pointedly observed that “an interpretation that, indeed, ancestral domain rights are hinged on the ‘IPs as stewards of the earth’ concept rather than on the right to self-determination and a correction of historical injustices would nullify whatever so-called gains IPRA advocates claim as ‘victories for the IP’s’.” (quoted in Mordeno, 2001) There is a Thai example which shows what can happen to ICCs if they somehow are measured and found to fail in duties to preserve and manage ecology. This is the draft elephant law, which proposes that Kuay people bringing elephants into Bangkok or other urban spaces are not exerting proper care of the national animal, and should have their elephants confiscated. Clearly the burden on the nation to be a steward has been transferred to the vulnerable and marginalized, overcoming at once property rights and a traditional Kuay communal relationship with the Asian elephant by subjecting these to an outside regulatory test. Indigenous knowledge is recognized as a responsibility to carry out or mime the state’s imperium oneself, on pain of losing dominium back to the same state, which would then acquire rights to elephants the Kuay did not discipline adequately, and proceed to confiscate these “out of place” natural resources. While the concept of indigenous people is especially complex in Asia, technocratic functional agencies have made the use of arrangements recognizing 42 Managing Projects for Sustainable Livehoods Rural Development in Lao PDR: the indigenous into a criterion of legitimacy, as in World Bank operational directive 4.20. (Kingsbury, 1998: 445) In the Philippines, this came on the heels of the Local Government Code of 1991 that decentralized power to Local Government Units (LGUs). With IPRA, the now tax-exempt ICCs are required to form Ancestral Domain Sustainable Development and Protection Plans (ADSDPPs). LGU’s and ICC’s thus compete for foreign investment. The LGUs are aware of the squeeze; feared one municipal assessor in Coron, Palawan, “nothing will be left for us and my office will become useless.” (Arquiza, 2002) Adding to competition is the fact LGUs and ICCs often need technical assistance and external funds from Non-Governmental Organizations (NGOs), which along with community associations or people’s organizations are also competing to run programs under contract. For some time, the Philippine bubble in NGOs has inflated, with “mutant NGOs” (Bryant, 2002b), including Politician Organized NGOs and Business Organized NGOs (PONGOs and BONGOs), mixed with progressive and morally idealistic groups. At the village level, infrastructural “contractors” actually do (or fail to do) much of the work formerly entrusted to government, with as much as 80% going to the contractor alone. (Hilhorst, 2001) Being on this market for development, laws have stressed the accountability of the beneficiaries such as ICCs/IPs. “Uplanders are now being offered more control over land and natural resources, but only on condition that in the interests of sustainability, biodiversity, and the needs of future generations, they take on the responsibility for conserving the little forest that is left and limit their economic aspirations accordingly.” (Li, 2002: 270) The Community Based Resource Management (CBRM) paradigm, once authorities accept it, often becomes compulsory dogma used to make benefits dependent on passing some environmental scorecard (see Agrawal and Gibson, 1999). Accountability techniques nested in the laws accomplish Orwell’s paradox of freedom as slavery. This is because for neoliberalism, political subjection coincides with formal political empowerment. Since practices of government “are only possible in so far as the subject is free,” (Foucault, 1997: 292) a free exercise of sustainable management practices advances subjection to a disciplined self-management constantly corrected by the feedback of competition. Even though in intent the inclusive law combines knowledge and social organization with territorial assets, this totality seemingly rooted in one village community actually manifests as competing individuals or groups in relationship with the outside. (Duhaylungsod, 2001) Thus a productive subjection issues from a globalization of neoliberalism’s cultural project that occurs as an intimate localization in human subjects. Failures only create “a dichotomy between recognized and recalcitrant indigenous subjects” (Hale, 2002) and facilitate tutelary projects targeting the community. Local society becomes recoded into a producer of appropriate conduct that conserves and sustains both nature and culture. The magic of gifting an entity-local community with rights gives incentive for the fallacy of Rural Development in Lao PDR: Managing Projects for Sustainable Livehoods 43 taking “community as an essence or starting point (for identities, rules, and notions of justice) rather than as the (provisional) result of community-forming processes.” (Li, 2002: 276) Yet the community so endowed is permitted to reach recognition only through a discipline-inducing process of rules, the “conduct of conduct” Foucault dubs “governmentality.” (Burchell, 1991) The draft elephant law, inserting governmentality by threatening elephant confiscation if elephant people do not measure up, and the paradoxes of indigenizing law in the Philippine IPRA, both reflect the fact sovereignty is not going away. Instead, as I have tried to show, the inner complexity of interacting imperium and dominium produces hybrid outcomes. Separation, substitution, and regulation are maintained in various spaces and times. The response on the part of IP movements can be to link struggles across equally diverse zones, to try to import into law more complex notions intimately related to diverse socio-natural spaces, and ultimately to overload the legal sovereignty concept. A reworked notion of sovereignty would draw much more sensitive distinctions within both imperium and dominium so that their interaction would depend on much more than market conditions. THE WAR CONTINUUM The central distinction common to these hybrids, the tension between imperium and dominium, is nothing less than the difference of war and peace. If there is no such difference, if in fact the law of wartime necessity never does return to the fold of peacetime with its just means, then both the necessity and instability of the hybrids I have demonstrated arise from a larger hybridity or instability relating war and peace. Arundhati Roy, accepting the Sydney Peace Prize in 2004, spoke of this uncertainty about war and peace, connecting it with the paradoxical tension between justice and “human rights,” which would include the indigenous rights examined here. Even among the well-intentioned, the expansive, magnificent concept of justice is gradually being substituted with the reduced, far more fragile discourse of ‘human rights’ . . . Almost unconsciously, we begin to think of justice for the rich and human rights for the poor. Justice for the corporate world, human rights for its victims. . . . So what does peace mean in this savage, corporatized, militarized world? . . . What does peace mean to the poor who are being actively robbed of their resources and for whom everyday life is a grim battle for water, shelter, survival and, above all, some semblance of dignity? For them, peace is war. We know very well who benefits from war in the age of Empire. But we must also ask ourselves honestly who benefits from peace in the age of Empire? (Roy, 2004) 44 Managing Projects for Sustainable Livehoods Rural Development in Lao PDR: For the Philippines, as part of US Empire, the legal genealogy of this confounding of war and peace is bound up with colonial history. As stated at the outset, IPRA establishes native title on a doctrine from a US Supreme Court precedent, rather than on specific findings of customary law throughout the archipelago. The jurisdiction of US Justices was based on extending an aspect of the US Constitution (courts of appeal) to the Philippines at a historic period when this extension was itself extremely problematic. A novel territorialization, known in legal terms as the doctrine of “unincorporated territories,” was critical to US colonial power. In several “Insular Cases” on the status of US-acquired territories after the Spanish-American War, the US Supreme Court held the Constitution need not “follow the flag” through a novel argument—former Spanish possessions, such as Puerto Rico and the Philippines, had not been “incorporated” so as to fall under an American government defined and limited by that Constitution. Through this breach, America developed in the course of the 20th century something like a dual constitution. The incorporation doctrine was first espoused in Downes v. Bidwell (the case dealt with Puerto Rico, but the effects would propagate to the Philippines and all newly acquired colonies). Its origin was the opinion by Justice Edward Douglas White. The question he put was: “Had Porto Rico, at the time . . . , been incorporated into and become an integral part of the United States?” White wrote that “while in an international sense Porto Rico was not a foreign country, since it was subject to the sovereignty of and was owned by the United States, it was foreign to the United States in a domestic sense, because the island had not been incorporated into the United States, but was merely appurtenant thereto as a possession.” [182 U.S. 244, 342] The tortured construal, “foreign“in a domestic sense” created a strange territorialization, “unincorporated territory.” White credited this legal innovation to Abbot Lawrence Lowell’s “third view.” Lowell too had found keeping the Constitution “irrational, because it extends the restrictions of the Constitution to conditions where they cannot be applied without rendering the government of our new dependencies well-nigh impossible.” (Lowell, 1899: 157) The “third view” took advantage of the unique fact that the 1898 Treaty of Paris with Spain, unlike all previous cessions, did not happen to make “any stipulation in regard to the relation in which the islands or their inhabitants shall stand towards the United States.” Through this loophole Lowell bounded with the non sequitur that the government “can acquire possessions without making them a part of the United States.” (Lowell, 1899: 172) White evidently took the suggestion to heart, and seemed to understand that if territory can be acquired, as in war, but not “incorporated,” the plenary powers of war, not Constitutional limits, would apply. Indeed, extended passages from White’s decision list all kinds of war powers, showing that White’s logic was far more than racist exclusion from rights, as usually observed, but a defense of plenary power.1 White’s innovation would Rural Development in Lao PDR: Managing Projects for Sustainable Livehoods 45 in time liberate international policy from Constitutional limits, or lead to what legal scholars now call the “foreign affairs constitution” which allows a limited government with enumerated powers at home to wield unrestricted forces abroad. UNINCORPORATION AND THE IMPOSSIBILITIES OF POWER This plenary power perspective includes some notable features. First, it is uncanny that it reads as a virtual prophecy for America’s trooping and tearing through the 20th century. The passages lifted from White’s opinion were, in its time, a Supreme Court version of the kind of blueprint contemplated in the recent “Project for a New American Century.” Second, it uses a rather Derridean logic of the supplement to destroy Locke’s distinction of rule of law vs. rule of necessity. White argues the army must have the war power to act by any means necessary, but this rule of necessity never returns to the Constitutional fold with peacetime. Instead, the army is a “creature” of Congress, so a fortiori Congress must be even less restricted; the wartime supplement supplants the civil power so that it now “comes in to regulate” by the military rule of necessity, no longer distinguishing a separate rule of law. The breakdown of rule of law through the military supplement of civil power results in a third extraordinary effect: the impossible treaty. Foreshadowed here is the impossibility that haunts the Philippines as America’s colonial progeny—the seeming abrogation of the Constitution in upholding both recognition of indigenous rights and representation of the national interest. White paradoxically grants his opponents that the plain language of the treaty’s cession, understood in the normal sense, would indeed extend Constitutional rule over new area (the Constitution following the flag), but claims this makes a treaty impossibly powerful. At the same time, to be forced by a treaty into acquiring property without the freedom to be exempted from extending Constitutional requirements makes treaty power impossibly weak. Let me come, however, to a consideration of the express powers which are conferred by the Constitution, to show how unwarranted is the principle of immediate incorporation . . . It seems to me impossible to conceive that the treaty-making power by a mere cession can incorporate an alien people into the United States without the express or implied approval of Congress. . . . If the treaty-making power can absolutely, without the consent of Congress, incorporate territory, and if that power may not insert conditions against incorporation, it must follow that the treaty-making power is endowed by the Constitution with the most unlimited right, susceptible of destroying every other provision of the 46 Managing Projects for Sustainable Livehoods Rural Development in Lao PDR: Constitution; that is, it may wreck our institutions. If the proposition be true, then millions of inhabitants of alien territory, if acquired by treaty, can, without the desire or consent of the people of the United States speaking through Congress, be immediately and irrevocably incorporated into the United States, and the whole structure of the government be overthrown. While thus aggrandizing the treaty-making power on the one hand, the construction at the same time minimizes it on the other, in that it strips that authority of any right to acquire territory upon any condition which would guard the people of the United States from the evil of immediate incorporation. The treaty-making power, then, under this contention, instead of having the symmetrical functions which belong to it from its very nature, becomes distorted-vested with the right to destroy upon the one hand, and deprived of all power to protect the government on the other. [182 U.S. 244, 313 emphasis added] This extraordinary piece of reasoning, that treaty-power can overthrow the government simply because of some “evil” consequence of ratification, derives from White’s attitude that incorporation would limit plenary power, so it must be deferred as long as possible. Just as rule of law does not return with peace if civil power is only military necessities administered by other means, a treaty that would force plenary power to obey consistency with the Constitution must be “impossible” if sovereign freedom is to thrive through a constantly deferred return to a Constitutional home. The impossibility argument is logically equivalent to the Philippine state’s assertion that granting title under IPRA would unbearably limit a national power. As the rhetoric about subjecting everyone to the Constitution showed, the Philippine state guarded its sovereign right to dispose of resources in the interests of the whole people rather than only respect (belatedly) the resource rights of an oppressed minority of them. The impossibility of IPRA being incorporated into the fundamental charter setting limits on the state stems from IPRA’s roots in the injunction to “do justice to the natives” pronounced by a conqueror’s court. Following White’s theory, the justice of native title is rendered under war powers over foreign soil (“foreign . . . in a domestic sense”), even if these are indistinguishable from civil powers exercised above and beyond the Constitution (because legislating for an area that is “unincorporated”). The impossibility of reconciling a national charter and new rights, or limited government and geopolitical ambitions, would produce a double reality, uncannily foreshadowing the surface and subsurface split of ancestral domains. America’s de facto double constitution was also foreshadowed in Justice John Marshall Harlan’s dissent: Rural Development in Lao PDR: Managing Projects for Sustainable Livehoods 47 Monarchical and despotic governments, unrestrained by written constitutions, may do with newly acquired territories what this government may not do consistently with our fundamental law. To say otherwise is to concede that Congress may, by action taken outside of the Constitution, engraft upon our republican institutions a colonial system such as exists under monarchical governments. . . . The idea prevails with some-indeed, it found expression in arguments at the bar-that we have in this country substantially or practically two national governments; one to be maintained under the Constitution, with all its restrictions; the other to be maintained by Congress outside and independently of that instrument, by exercising such powers as other nations of the earth are accustomed to exercise. LAW DEFERRED OR PEACE DENIED Put another way, the early imperialist and later superpower arrogation of a “foreign affairs constitution” unbound by the fundamental charter is rooted in the deferral of incorporation that would end the law of wartime necessity and return the country to a government of limited powers. In short, White’s novel “unincorporated territory” masks the startling proposal that the Constitution is the contamination. Fear of racist contamination during the rise of US imperialism was part of a much larger antipathy against lack of potency, coterminous with fear of suffering any imagined loss of plenary power. In the U.S. Supreme Court proceedings, these losses were mirrored in the Attorney General’s constant pleading about a hobbled government or a “crippled nation” denied colonial prerogatives. Thus the White supremacy at issue was less keeping the franchise from brown folk than reserving powers over and above the Constitutional limits, thereby surpassing any Constitutional crippling of empire. By the doctrine of unincorporated territory, White gave government, as Chief Justice Fuller said in dissent, the power to keep it, like a disembodied shade, in an intermediate state of ambiguous existence for an indefinite period; and, more than that, that after it has been called from that limbo, commerce with it is absolutely subject to the will of Congress, irrespective of constitutional provisions . . . [182 U.S. 244, 373] By 1936, the strain of republic at home, empire abroad formally split the Constitution in two, a limited government of enumerated powers for an internal domestic community, and a theoretically unlimited sovereign acting under a “foreign affairs constitution” or “geopolitical constitution.” Its origin in the incorporation doctrine was obscured since the theory did not become settled 48 Managing Projects for Sustainable Livehoods Rural Development in Lao PDR: law until, after a number of decisions by White himself citing Downes v Bidwell as if it were solid precedent, the head of the Philippine Commission, William Howard Taft, became President—and elevated White, whose doctrine had so advanced the American empire, to Chief Justice. Upon White’s demise, Taft in turn took over his place as Chief Justice, promptly enshrining the doctrine in Balzac v Porto Rico in 1922. (Soltero, 2001) Jurisprudence regards the real beginning of the two constitutions as the 1936 Sutherland decision in Curtiss v. Wright. As Sarah Cleveland has shown, Sutherland abandoned the traditional concept of a limited national government derived from enumerated and reserved powers and replaced it with a bifurcated vision of internal and external powers, in which traditional enumerated-powers analysis applied only to U.S. domestic relations. According to this vision, the Constitution, both as a source of governmental authority and as a constraint on its exercise, stopped at the water’s edge. “Ordinary constitutional constraints” Sutherland surmised, should be reluctant to interfere with the exercise of the government’s sovereign external powers. (Cleveland, 2002) Sutherland’s thinking, in fact, dates back to the 1898 debates on (un)incorporating new territories including the Philippines. Sutherland was a Senator from Utah before being a Justice, and he first advanced the dual constitution theory in 1909. (see S. Doc. No. 61–417, reprinted as George Sutherland, 1910, “The Internal and External Powers of the National Government,” 191 N. Am. Rev. 373) He was influenced by Republican Senator Platt of Connecticut, who inverted the enumerated powers doctrine, and declared on the Senate floor that the US: possesses every sovereign power not reserved in its constitution to the State or to the people: that the right to acquire territory was not reserved and is, therefore, an inherent sovereign right: that it is a right upon which there is no limitation and with regard to which there is no qualification: that in certain instances the right may be inferred from specific clauses in the Constitution but that it exists independent of the clauses: that in the right to acquire territory is found the right to govern it: that as the right to acquire is a sovereign and inherent right, the right to rule is a sovereign right not limited in the Constitution. (quoted in Cleveland, 2002: 212) Platt’s idea of sovereign right became in Sutherland’s eyes the outlandish assertion of derived powers from the British crown. Thus in Curtiss v. Wright Sutherland’s opinion suggested in dictum that the federal government’s external sovereignty derived wholly from the British Crown and that the Constitution only prescribed the federal government’s domestic powers. The federal government exercised a monopoly on foreign relations power unregulated by the Rural Development in Lao PDR: Managing Projects for Sustainable Livehoods 49 Constitution. In a stunning non sequitur, Sutherland concluded from this that the President was “the sole organ of the federal government in the field of international relations—a power which does not require as a basis for its exercise an act of Congress, but which, of course, like every other governmental power, must be exercised in subordination to the applicable provisions of the Constitution.” (Paul, 1998: 689-90) According to Joel Paul, the Sutherland concept of the “sole organ” and the resulting “two constitutions” contributed to the increasing force of a discourse of executive expediency. This did not arise, as one might assume, through proxy wars and “imperial Presidency,” but was in fact deployed to secure executive agreements under Truman, who made GATT (an economic matter normally subject to Congressional approval) a defining case of theory that the President was the “sole organ” of international relations, thus muddling distinctions between military security connected with exigencies, and the hitherto democratic deliberations on regulating trade and commerce. The fact that later GATT and NAFTA have been handled not as Article II treaties but executive agreements normalizes this view. (Paul, 1998) Thus we come full circle back to Roy’s assertion that corporate savagery muddles peace and war. To it we must add that neoliberal self-regulation (discipline your community or its property reverts to the state) is a hybrid act of continuing violence against ICCs—a perpetuity of war in the uncertainty of rights. This final paradox of Philippine postcolonial legal hybridities in IPRA answers a question Foucault asked the audience at College de France in 1976. “If we look beneath peace, order, wealth, and authority, beneath the calm order of subordinations, beneath the State and State apparatuses, beneath the laws, and so on, will we hear and discover a sort of primitive and permanent war? “When, how, and why did someone come up with the idea that it is a sort of uninterrupted battle that shapes peace, and that the civil order-its basis, its essence, its essential mechanisms, is basically an order of battle?” (Foucault, 2003: 47) In the legal heart of victory for native title, the battle of the long shadows of colonialism has never ceased to be waged. NOTES 1 Here are the passages, formatted to emphasize the geopolitical ambitions therein. 1. Discovery Citizens of the United States discover an unknown island, peopled with an uncivilized race, yet rich in soil, and valuable to the United States for commercial and strategic reasons. Clearly, by the law of nations, the right to ratify such acquisition and 50 Managing Projects for Sustainable Livehoods Rural Development in Lao PDR: thus to acquire the territory would pertain to the government of the United States. Can it be denied that such right could not be practically exercised if the result would be to endow the inhabitants with citizenship of the United States and to subject them, not only to local, but also to an equal proportion of national taxes, even although the consequence would be to entail ruin on the discovered territory, and to inflict grave detriment on the United States, to arise both from the dislocation of its fiscal system and the immediate bestowal of citizenship on those absolutely unfit to receive it? 2. Conquest A just war is declared, and in its prosecution the territory of the enemy is invaded and occupied. Would not the war, even if waged successfully, be fraught with danger if the effect of occupation was [182 U.S. 244, 308] to necessarily incorporate an alien and hostile people into the United States? 3. Military Occupation Suppose at the termination of a war the hostile government had been overthrown, and the entire territory or a portion thereof was occupied by the United States, and there was no government to treat with or none willing to cede by treaty, and thus it became necessary for the United States to hold the conquered country for an indefinite period, or at least until such time as Congress deemed that it should be either released or retained because it was apt for incorporation into the United States. If holding was to have the effect which is now claimed for it, would not the exercise of judgment respecting the retention be so fraught with danger to the American people that it could not be safely exercised? 4. Forcing Indemnity Suppose the United States, in consequence of outrages perpetrated upon its citizens, was obliged to move its armies or send its fleets to obtain redress, and it came to pass that an expensive war resulted and culminated in the occupation of a portion of the territory of the enemy, and that the retention of such territory-an event illustrated by examples in history-could alone enable the United States to recover the pecuniary loss it had suffered. And suppose, further, that to do so would require occupation for an indefinite period, dependent upon whether or not payment was made of the required indemnity. It being true that incorporation must necessarily follow the retention of the territory, it would result that the United States must abandon all hope of recouping itself for the loss suffered by the unjust war, and hence the whole burden would be entailed upon the people of the United States. 5. Military = Civil Authority But, it is argued, all the instances previously referred to may be conceded, for they but illustrate the rule inter arma sitent leges . . . A case has been supposed in which it was impossible to make a treaty because of the unwillingness or disappearance of the hostile government, and therefore the occupation necessarily continued, although actual war had ceased. The fallacy lies in admitting the right to exercise the power, if only it is exerted by the military arm of the government, but denying it wherever the civil power comes in to regulate and make the conditions more in accord with the spirit of our free institutions. Why it can be thought, although under the Constitution the military arm of the government is in effect the creature of Congress, that such arm may exercise a power without violating the Constitution, and yet Congress-the creator-may not regulate, I fail to comprehend. Rural Development in Lao PDR: Managing Projects for Sustainable Livehoods 51 6. Inherent Right to Colonize This further argument, however, is advanced. Granting that Congress may regulate without incorporating, where the military arm has taken possession of foreign territory, . . . there is here involved no regulation, but an actual cession to the United States of territory by treaty. The general rule of the law of nations, by which the acquiring [182 U.S. 244, 311] government fixes the status of acquired territory, it is urged, does not apply to the government of the United States, because it is incompatible with the Constitution that that government should hold territory under a cession and administer it as a dependency without its becoming incorporated. This claim, I have previously said, rests on the erroneous assumption that the United States under the Constitution is stripped of those powers which are absolutely inherent in and essential to national existence. 7. Military Bases and Supplies Suppose the necessity of acquiring a naval station or a coaling station on an island inhabited with people utterly unfit for American citizenship and totally incapable of bearing their proportionate burden of the national expense. Could such island, under the rule which is now insisted upon, be taken? 8. 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