Limine v Lainej [1955] TTLawRp 6; 1 TTR 231 (14 March 1955)

TRIAL DIVISION OF THE HIGH COURT

MARSHALL ISLANDS DISTRICT

Civil Action No. 18

LIMINE
Plaintiff

v.

LAINEJ, LITOWELAN, and JINET
Defendants

March 14, 1955

Action to determine alab rights in certain wato on Jabo Island, Arno Atoll. The Trial Division of the High Court, Chief Justice E. P. Furber, held that under Marshallese custom, approval of iroij lablab is necessary to make will of rights in land effective, and that determination of former alab as to who should succeed him has no legal effect without such approval.

1. Marshalls Custom-"Iroij Lablab"-Approval of Wills

Under Marshallese custom, approval of iroij lablab, or those entitled to exercise iroij lablab powers, is necessary to make will of rights in land effective.

2. Marshalls Land Law-"Alab" - Succession

Under Marshallese custom, determination made by alab, with or without approval of his bwij as to who should succeed him as alab, has no legal effect without approval of iroij lablab.

3. Marshalls Land Law-"Ninnin"

Under Marshallese custom, there are special rules as to inheritance, or transfer of rights in ninnin land.

4. Marshalls Land Law-"Ninnin"

Under Marshallese custom, ninnin rights may, under proper Circumstances, pass on from generation to generation among descendants of person who originally gave them to his child or children.

5. Marshalls Custom-"Bwij"

Under Marshallese custom, just which people are referred to by term bwij in particular instance depends upon circumstances with regard to which it is used.

6. Marshalls Land Law-"Ninnin"

When a man gives his children, with all necessary consents, the alab rights in land as ninnin under Marshallese system of land ownership, presumption is that rights given are limited to his children and their descendants, and that gift fails to give any rights to that part of childrens' maternal lineage outside of these children and their descendants.

7. Marshalls Land Law-"Ninnin"

Under Marshallese custom, gift of ninnin land gives no rights to descendants of the mother's sisters, or descendants of one of mother's matrilineal ancestors.

8. Marshalls Land Law-"Ninnin"

Under Marshallese custom, children to whom ninnin rights have been given, and their descendants, may be considered to constitute new bwij, or their "smaller bwij."

9. Marshalls Land Law-"Ninnin"

Under Marshallese custom, fact that children and their descendants may permit ninnin rights to pass down among them in female line does not raise presumption of any rights outside of these children and their descendants.

10. Marshalls Land Law-"Ninnin"

Under Marshallese custom, when "smaller bwij" holding ninnin rights has run out in female line, children of last generation of male members of "smaller bwij" may be permitted by iroij lablab to succeed to alab rights, even though there are members in female line of other branches still living.

FURBER, Chief Justice

MEMORANDUM OF DECISION

1. This memorandum of decision is filed in accordance with Rule 17 (a) of the Rules of Civil Procedure to assist the Appellate Division in a thorough understanding of the case.

2. At the trial of this action the plaintiff, Limine, appeared to place reliance primarily on the announcement of Iroij Lalab Tobo, set forth in the 5th finding of fact, to the effect that he then recognized Limine as alab. This announcement was made several years after Tobo had established the defendant Lainej as alab, and the Court, in its 5th conclusion of law, has held that the determination shown by that announcement was of no legal effect. In the grounds for appeal, the plaintiff Limine now, however, seems to claim first, that she is entitled to be alab because of a determination by Laniema, the former alab, and his bwij, without regard to any action of the iroij lablab, and second, that it was beyond the power of the iroij lablab to establish Lainej as alab. To make clear the position of the Trial Court on these two points, I make the following additional finding of fact and conclusions of law:-

ADDITIONAL FINDING OF FACT

The plaintiff Limine has failed to prove that the iroij lablab, at any time prior to establishing Lainej as alab, had approved any determination that Laniema, or his bwij, or he and his bwij, may have made that Limine should succeed him as alab of any of the lands in question.

ADDITIONAL CONCLUSIONS OF LAW

[1, 2] A. As explained in the conclusions of law by this Court in Lalik v. Elsen, 1 TTR 134, under Marshallese customary law the approval of the iroij lablab, or those entitled to exercise the iroij lablab's powers, is necessary to make a will of rights in land effective, and is one of the most important things about it. See also conclusions of law by this Court in Lazarus S. v. Likjer, 1 TTR 129. The Court therefore holds that any determination that Laniema may have made, either with or without the approval of his bwij, as to who should succeed him as alab would have no legal effect without the approval of the iroij lablab.

[3-7] B. As noted in the opinion of the Appellate Division in the case of Kumtak Jatios v. L. Levi, 1 TTR 578, there are special rules as to the inheritance or transfer of rights in ninnin land. In that case the Appellate Division held that "ninnin rights . . . may, under proper circumstances, and regularly do, pass on from generation to generation among the descendants of the person who originally gave (as commonly understood in this connection in the Marshalls) them to his child or children." Much confusion has been caused in discussions of this subject by the indefinite meaning of the word "bwij". As explained in the third paragraph of the Appellate Division's opinion in Kumtak Jatios v. L. Levi, cited above, "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." This Court holds that when a man gives his children, with all necessary consents, the alab rights in land as ninnin under the Marshallese system of land ownership, the presumption, in the absence of a clear showing to the contrary, is that the rights given are limited to his children and their descendants, and that the gift fails to give any rights to that part of the children's maternal lineage outside of these children and their descendants. In other words, such a gift gives no rights to the descendants of the mother's sisters, or what might be called the children's "larger" bwij (referring to the bwij consisting of descendants of one of their mother's matrilineal ancestors).

[8, 9] C. It is sometimes stated that ninnin rights belong to the bwij, but the Court holds that in the normal situation this is only true in the sense that the children to whom the ninnin rights have been given and their descendants may be considered to constitute a new bwij, or what might be called their "smaller" bwij. The fact that the children and their descendants may permit the rights to pass down among them in the female line does not raise any presumption of any rights in the part of the children's "larger" bwij outside of these children and their descendants.

[10] D. While it is often stated that in the case of kabijukinen land (that is, ancestral land holdings of a maternal bwij), ajri (that is, children of male members of the bwij) are not entitled. to succeed to alab rights of the bwij unless the entire bwij and all those associated with it become extinct, the Court holds that in the case of ninnin land, when the "smaller" bwij holding the ninnin rights has run out in the female line, the children of the last generation of male members of that· "smaller" bwij may be permitted by the iroij lablab to succeed to the alab rights of the "smaller" bwij, even though there are members in the female line of other branches of the "larger" bwij still living.

3. For a further explanation of the commoner Marshallese terms used in this action, attention is invited to the introductory paragraphs in the opinion of the Appellate Division in Kumtak Jatios v. L. Levi, cited above. The terms "juluburin ne" and, "mo" usually refer to personal land of an iroij, but are used in this action to describe the personal land of the alab Laniema. "Kajur" means commoner. "La" and "Le" are prefixes often affixed or omitted from the name of a male according to the choice of the speaker. "Li" and "Le" are similarly used in the case of names of women. The man shown on the geneological chart in this action as "Leboene" is the same' man referred to in the testimony as "Boene". Similarly, the defendant "Litowelan" is the same person referred to at numerous points in the testimony as "Towelan." The spelling of Marshallese names is not strictly standardized. The plaintiffs first witness, whose name is shown in the record of trial and transcript of testimony as "Taridrik" is the same person shown in the geneological chart as "Taririk", and the plaintiffs second witness, whose name is shown in the record of trial and transcript of testimony as "Kinebal" is the same person shown on the geneological chart as "Kebal". On the other hand, the defendant's last witness, Abija, is a different person from the "Abijai" referred to in Lajible's opening statement.