IN THE SUPREME COURT
REPUBLIC OF THE MARSHALL ISLANDS

SUP. CT. CASE NO. 2001-002
High Court Civil Action No. 1999-250

RITOK H. JACK,
Plaintiff

VS.

TOKIKO HISIAH and
DAVID HISIAH,
Defendants.

BEFORE: FIELDS, Chief Justice; GOODWIN* and KURREN**
Acting Associate Justices.

Argued and Submitted November 20, 2002

OPINION

FIELDS, Chief Justice:

Ritok H. Jack appeals a judgment in favor of Tokiko Hisiah and David Hisiah as to land rights.

Facts and Procedural History

Ritok H. Jack sued her mother, Tokiko and her brother David Hisaiah, for "Declatory (Declaratory) Judgment and INJUNCTIVE Relief". The dispute is over the land rights on Wojalikok Ean weto, Arrak, Majuro. The land was purchased by Andrew Hisaiah, the husband of the defendant, Tokiko, and father of defendant David Hisaiah, as well as the father of plaintiff, Ritok H. Jack.

The land is on the Jebdrik side of Majuro, and thus there is no Iroij. The issue in dispute is, who holds the rights as Alap and also Senior Dri-Jerbal?

Plaintiff claims that under customary law, the spouse of a deceased husband does not inherit the land rights of the husband, but that such rights normally go to the children. Plaintiff thus claims the rights because she is the oldest child who lives on and works the land.

Defendant Tokiko Hisaiah, the widow of the deceased Andrew Hisaiah, claims title to the rights of Alap, and David Hisaiah claims the right to Senior Dri-Jerbal.

Discussion

The matter was properly referred to the TRADITIONAL RIGHTS COURT, by the High Court, to determine who were the proper persons to be the Alap and Senior Dri-Jerbal on the Weto. The Constitution of the Republic of the Marshall Islands provides in Article VI, section 4 (3) "The jurisdiction of the Traditional Rights Court shall be limited to the determination of questions relating to titles or to land rights depending wholly or partly on customary law and traditional practice in the Marshall Islands". In (5) it provides the resolution of the question referred to the Traditional Rights Court "shall be given substantial weight in the certifying court's disposition of the legal controversy before it: but shall not be deemed binding unless the certifying court concludes that justice so requires".

The Traditional Rights Court heard the case on October 23 - 30, 2000 at the Courthouse on Majuro Atoll and rendered its opinion in answering the question presented to it on November 16, 2000. The Traditional Rights Court recognized that this case is the first of its kind to come before the court. The court further stated that "custom plays a major role in resolving the dispute in this case".

The court stated that if this land was Bwij land, the surviving wife would have no rights to the land. She would return to her own people and live with them. Under custom the Bwij land would be inherited by the children.

The Traditional Rights Court after listening to all the witnesses, mostly for the Defendants, (only Plaintiff and, Tarkien Inok, the seller of the land to Andrew, the deceased father testified for Plaintiff) and found that the weto in question was not Bwij Land. They further found that the land was purchased by Andrew, not just for himself, but also for his wife and his children. The court found that under the facts of this case that "The properties of the husband are also properties of the wife." The court found that it is the custom that the wife came first and then the children and that was in Andrew's mind. The Court found that Plaintiff did not meet her burden of proof that she was entitled to the Alap and Senior Dri-Jerbal rights. The court rejected outright the claim of Tarkien that she retained any right to the land, or to declare who held the Alap and Dri-Jerbal rights, following the sale of the land in question.

The High Court adopted and confirmed the findings of the Traditional Rights Court and entered a judgment that Tokiko Hisaiah held the Alap rights and that her son, David held the Senior Dri-Jerbal rights. The lease between the Defendants and their sister Kathy Kramer is valid.

The High Court is to give substantial weight to the findings of the Traditional Rights Court, after their determination is made "wholly or partly on customary and traditional practice" Republic of the Marshall Islands Constitution, supra.

The Standard of review for this Court is if the alleged error is one of law, the court will review the matter de novo. If the alleged error is based upon factual findings, the court will reverse or modify if the findings are clearly erroneous. A finding is clearly erroneous when the entire record produces a definite and firm conviction that the court below made a mistake. The error urged here is based upon the factual finding as to custom. "Every inquiry into custom involves two factual determinations. The first is: is there a custom with respect to the subject matter of the inquiry? If so, the second is: what is it? Only when the ascertained custom is incorporated in a statute or has formed the basis of a final court decision does it become law in the modern sense" Lobokke Lobo vs. Laibon Jejo, Supreme Court N., 8908, Marshall Islands Law Reports, p.174. (1991).

In reviewing the record before us, there is abundant evidence to sustain the factual findings and there is no basis for us to upset those findings or the judgment rendered herein, with the: exception to that part of the opinion declaring that Tokiko Hisiah's own children from her previous marriage have any present or future claim to the land in question. The evidence was clear that Andrew Hisiah purchased the land for his wife and for his own children. There is no evidence that it was to include the children of his wife by a prior marriage. Since this is not bwij land, therefore special rules apply to carry out the intention of Andrew's purchase of the land. To rule otherwise would mean that the normal rules of succession would apply and that Tokiko would have no interest in the land. Thus Tokiko cannot give away or convey her interest in the land and upon her death all rights, that she presently holds, go exclusively to all the children of Andrew. In the meantime, plaintiff, Ritok, as the daughter of Andrew, is allowed to continue to occupy a portion on the weto and can complete her construction in progress.

The Judgment is affirmed as herein directed with the changes as to future rights in the weto in question.

FILED
Dec 23 2002
_______________________

ASST. CLERK OF COURTS
REPUBLIC OF MARSHALL ISLANDS

*Honorable Alfred T. Goodwin, Senior Judge, United States Court of Appeals for the Ninth Circuit, sitting by designation of the Cabinet

*Honorable Barry M. Kurren, Magistrate Judge, District of Hawaii, sitting by designation of the Cabinet