Jatios v Levi [1954] TTLawRp 26; 1 TTR 578 (10 August 1954)

APPELLATE DIVISION OF THE HIGH COURT

Civil Appeal No.1

KUMTAK JATIOS
Appellant

v

L. LEVI et al.
Appellees

August 10, 1954

See, also, 1 T.T.R. 36

Appeal from the Trial Division of the High Court, Marshall Islands District, involving ownership of land. The Appellate Division of the High Court, Chief Justice E. P. Furber, held that under Marshaliese customary land law, which is essentially feudalistic, one chief cannot deprive workers of rights in land for refusal to recognize him without action by feudal high chief.

Modified and affirmed.

1. Former Administrations-Official Acts

Fact that Japanese set up arrangement of land on Marshalls which violated local custom is not valid objection to it.

2. Former Administrations-Taking of Private Property by Japanese Government-Limitations

Fact that arrangement of land by Japanese Administration was induced by misrepresentations is not valid objection where parties or predecessors had time to appeal to Japanese Administration.

3. Former Administrations-Official Acts

Present government is entitled to rely upon and respect official acts of Japanese Administration.

4. Former Administrations-Official Acts

Law-making authorities and not courts are entitled to upset special arrangements in land made by Japanese Government.

5. Appeal and Error-Scope of Review

Theory upon which case is tried should also be followed on appeal and trial assistants cannot advance new theories for first time on appeal.

6. Marshalls Land Law-Generally

Under Marshallese custom, there is no analogy between American idea of an absolute owner and Marshallese idea of holder of any one of levels of rights in common kinds of land ownership.

7. Marshalls Land Law-"Alab"

Under Marshallese custom, alab is only one of owners of land, at one level in feudalistic system.

8. Marshalls Land Law-Generally

Under Marshallese custom, all levels of owners of land have rights which courts will recognize and obligations to each other which severely limit their control over land.

9. Marshalls Land Law-Generally

Under Marshallese custom, there is duty of loyalty up lines of feudal ownership and duty of protection of welfare of subordinates running down lines.

10. Marshalls Land Law-"Alab"-Limitation of Powers

Under Marshallese custom, alab may not put dri jerbal off land without obtaining consent and may not disregard rights of iroij erik established by Japanese Government.

11. Marshalls Land Law-"Iroij Lablab"-Powers

Under Marshallese custom, matter of terminating land rights for default should be taken up in first instance with persons entitled to exercise iroij lablab powers over land.

12. Marshalls Land Law-"Iroij Lablab"-Powers

Where there is no action by iroij lablab, court will not hold that past refusal of dri jerbal to recognize alab has barred their rights nor has past refusal of alab to recognize iroij erik barred his rights,

13. Marshalls Land Law-"Ninnin"

Under Marshallese customary land law, ninnin gifts are not limited to one generation but pass on from one generation to descendants.

14. Appeal and Error-Scope of Review-Facts

Appellate court will not set aside findings of facts of trial court unless clearly erroneous. (T.T.C., Sec. 200)

Assessors: Counsel for Appellant: Counsel for Appellee:

SOLOMON L. and REWA SAMUEL LAZARUS SIMON LIV AI JEREMAIA

Before FURBER, Chief Justice, SHRIVER and MANIBUSAN, Temporary Judges

FURBER, Chief Justice

OPINION OF THE COURT

This is an appeal from a judgment of the Trial Division of the High Court involving ownership of rights in five wato (or sections) of Dririj Island and all of Kemen Island, both in Majuro Atoll, in the Ratak Chain, in the Marshall Islands.

In order to understand the case, some knowledge of a few Marshallese terms and the basic features of Marshallese land ownership is essential. During the later years of the Japanese Administration of the Marshall Islands, the commonest kinds of land ownership in the Ratak Chain involved four levels of rights, or owners exercising rights at the same time in the same piece of land. These were the iroij lablab (or paramount chief) rights, the iroij erik (or lesser chief) rights, the alab (or person in immediate charge of a wato) rights, and the dri jerbal (or worker) rights. These four kinds of rights still continue. All four are not found in all land in the Ratak Chain, and the appellant claims there is no iroij erik of the land involved in this action. In the Ralik Chain there are regularly three levels, that of iroij erik being omitted, and the term "iroij elap" is commonly used in place of "iroij lablab", but without any change in meaning.

A "wato" (sometimes spelled "weto) is typically a strip of land stretching crosswise of an island from the lagoon to the ocean, and varying in size from about one to five acres in extent. On some islands which are unusually wide for a coral atoll, the wato does not go clear across the island, and some small islands, such as Kernen Island involved in this case, consist of only one wato. The wato is the typical Marshallese land unit. Each has its own name and history. The term "alab" is somewhat confusing because it is also used at times to describe the senior member of a bwij regardless of questions of land ownership and sometimes means simply "uncle". A "bwij", in its strict or primary sense, is an extended matrilineal family or lineage, but the word is also used at times to refer to an extended patrilineal family or lineage, and in some instances it is used to refer to a particular branch of a bwij. Thus, just what people are referred to by the term "bwij", in a particular instance depends on the circumstances with regard to which it is used.

"Iroij lablab" and "alab" are old Marshallese terms, and perhaps on that account their rights appear in the minds of many Marshallese to be the outstanding ones. Thus it is frequently said that the iroij lablab will "take care of" the iroij erik, and that the alab will "take care of" the dri jerbal. "Dri jerbal" is a newer term which came into use in connection with the practice of selling copra for cash. Ideally the dri jerbal are the members of the extended matrilineal family or lineage whose head is the alab of the wato, but in some instances the dri jerbal are, or include, the children of a male alab or previous alab, and in other instances they consist of, or include, people who are not relatives of the alab at all. It should be noted that typically there will be only one iroij lablab, one iroij erik, and one alab at a particular wato at any one time, but that there may be any number of dri jerbal. There often are more than a dozen and their number in-creases automatically as births occur among those whose children are entitled to such rights in that particular wato. While the term "iroij erik" itself is an old one, it appears to have been applied by the Japanese with an entirely different meaning in an effort to simplify terminology concerning land. In the days before any of the foreign administrations came to the Marshalls, the term "iroij erik" referred only to those directly in line to succeed to the position of iroij lablab, whereas the Japanese very definitely applied the term both to people who had come to be known as iroij in tel (that is, royal collectors) and to leatoktok (title of the old-time head of the commoners, and advisors, but not of royal blood) and to others who were allowed to exercise similar powers but had no iroij blood.

Traditionally, most of the land was family land, that is, the rights in it at any particular level were usually held by or in a bwij and were inherited in the maternal line; but a man might, and still may, in some circumstances, with the consent or acquiescence of his bwij, give land rights to one or more of his children. Land in which this is done is then known as "ninnin" land as to the level of rights given to the man's child or children, and there are special rules as to the inheritance or transfer of those rights thereafter concerning which there seem to be many disputed points, only one of which is involved in this appeal. Ninnin land is sometimes loosely described as land in which the rights "pass from father to son", but that does not tell the whole story accurately. Both family land and ninnin land are well recognized today.

For a very helpful detailed anthropological study of this whole matter of Marshallese land ownership, see "Land Tenure of the Marshall Islands" by J. E. Tobin, issued by the Pacific Science Board as Atoll Research Bulletin No. 11. A discussion of it, with particular reference to Majuro, by another scientist will be found in the section on "Land Tenure and Lineage", beginning at page 160, in "Majuro, a Village in the Marshall Islands", by Alexander Spoehr, published by the Chicago Natural History Museum as Volume 39 of Fieldiana: Anthropology.

For purposes of this appeal the parties may be divided into two groups, all the members of one of which make a consistent set of claims as to who owns each of the four levels of rights, while all the members of the other group make a different set of claims as to who owns each of the four levels (except for agreement as to the dri jerbal rights in some wato). There have been a number of substitutions of parties caused by deaths while the action has been going on, but to avoid unnecessary confusion, the claims will be spoken of in this opinion as if made by or against the present parties where there is agreement as to who has succeeded a deceased party. The effect of the Trial Division's judgment was to find basically in favor of the claims of the appellant Kumtak's group as to the alab rights in all the land and the dri jerbal rights in three wato, and in favor of the claims of the other group as to the iroij lablab and iroij erik