Indigenizing Law or Legalizing Governmentality?

The Indigenous Peoples Rights Act and the Philippine Supreme Court
Peter Cuasay, Ph.D.

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) with
as much as 80% of remaining 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
consolidates a prevailing moral geography. Yet this 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.
Rather than leaping beyond sovereignty to a novel neoliberal utopia, it is the shift in emphasis
from imperium to dominium which plays a defining role in the commons problems of our time.
This is a more complicated story than a mere evolution from conquest and booty to property law
and management ensuring an automatic rise 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 moral objectivity which 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 reached a rough balance in the court case, which ended in a tie, I
shall suggest the balance may ultimately tip in yet a third direction. With the help of a Thai
example, neoliberal self-regulation can be seen as a regulated exchange between imperium and
dominium, supposedly devolving ruling power down to substate agents but snatching ownership
away as the cost of failing self-control. Rather than the end of sovereignty, this is a kind of
endless cancellation of sovereignty which 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 one side of a coin whose other face is continued denial of the popular sovereignty which
could make such rights effective. The role for indigenous knowledge is to enrich, complicate,
and ultimately overload the simplistic economy of imperium and dominium by re-making the
sovereignty concept.

Separation or Nostalgic Imperium

The legal basis for finally granting titles to 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.

Immediately after IPRA passage succeeded, the specter of its being some kind of upcountry
land-reform-in-earnest drove Isagani Cruz and Cesar Europa to file a Supreme Court case
against its constitutionality. Symbolized in Spanish form, Caesar, Europe, and the Cross all
wanted to stop indigenous people’s 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 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 owenership from one conqueror to the nest 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.

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 theory 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 as
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
which vests in the State ownership of lands of the
public domain does not cover ancestral lands and
ancestral domains. (Kapunan Opinion, 92)

Thus a separation was set up between Regalian Doctrine, public lands, and dominium, on one
hand, and the Carino Doctrine, private but common property, and imperium, on the other. For
the source of the 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 right of a conqueror 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. Those 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 separate the dominium of the insular government from 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 [*458] 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 [**336] 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 [***597] 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.
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 [*459] 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 the redress of the
indigenous peoples historic grievances of dislocation, expropriation, and disenfranchisement was
staged as a legal precedent from 1909 calling on 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

But if Carino 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 a curiously layered or laminated situation where 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 level property by sovereign prerogative. Alongside this
compression of domain to mere surfdace was an expansion of emphasis, not on the enumerated
rights of the 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 is 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.1

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

1
Mariflor P. Pagusara, The Kalinga Ili: Cultural-Ecological Reflections on Indigenous Theora and Praxis of
Man-Nature Relationship, Dakami Ya Nan Dagami, p. 36, Papers and Proceedings of the 1st Cordillera
Multi-Sectoral Land Congress, 11-14 March 1983, Cordillera Consultative Committee [1984].
 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 Carino 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 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 thrust was to reduce domain to surface, and carve 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 nationionalist 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 now flattened domain, the surfacing of a distinction
between land surface and subsurface resources. This surface/depth splitting was actually found
to be disturbing if the original precedent 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
lights 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" 18 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 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. 19 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
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 Carino 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 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 fulfill
Constitutional priorities of land reform and stewardship, is an instrument for transferring wealth
upwards to rent-seeking elites and outwards to foreign corporations. But in a future that
seriously implemented the IPRA principle of working through customary laws, one can imagine
contentious tribal councils orating about a necessary spirit of public interest that grows more
vivid and compelling the further the nation recedes in memory, and the more it can 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 oneself the
control a conqueror would impose is losing dominium back to the state. This encapsulates the
paradox of granting rights while flattening domain to surface, as it has been observed “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 ICC 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 propoerty rights and traditional relationship with the Asian elephant by
subjecting these to an outside test of Kuay regulation. Indigenous knowledge is recognized as a
responsibility to carry out the state’s imperium oneself, or lose dominium back to the same state
which acquires elephants that Kuay did not discipline adequately and confiscates 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 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 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) This free exercise of sustainable management practices is
also self-management feeding back into competition, for the inclusive law combines knowledge
and social organization with territorial assets, but this totality seemingly rooted in one village
community actually manifests as competing individuals or groups in relationship with the
outside. (Duhaylungsond, 2001)

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) that 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 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 soveriegnty 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 and try to import and
ultimately overload the legal soverignty 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.
References
Agrawal, A and Gibson, C
1999 Enchantment and disenchantment: the role of the community in natural resource
conservation, World Development 27(4): 629-650

Arquiza, Y
2002 Native titles spark indigenous revival. Philippine Center for Investigative Journalism,
October 15-16.

Bankoff, G
2001 Selective memory and collective forgetting, Bijdragen tot de Taal - Land en
Volkenkunde, 157(3): 537-560.

Bryant, RL
2002 Non governmental organizations and governmentality: "Consuming" biodiversity and
indigenous people in the Philippines. Political Studies 50(2): 268-292.
2002b False Prophets? Mutant NGOs and Philippine environmentalism, Society and Natural
Resources, 15(7): 629-639.
2000 Politicized moral geographies - Debating biodiversity conservation and ancestral domain
in the Philippines. Political Geography 19(6): 673-705

Burchell, G, Gordon C, Miller P (eds)

The Foucault Effect: Studies in Governmentality, Hemel Hempstead: Harvester Wheatsheaf.

Cuasay, P
1998 Borders on the Fantastic: Mimesis, Violence, and Landscape at the Temple of Preah
Vihear. Modern Asian Studies, 32(4): 849-890.

Duhaylungsod, L
2001 Rethinking sustainable development - Indigenous peoples and resource use relations in
the Philippines, Bijdragen tot de Taal - Land en Volkenkunde, 157(3): 609-628.

Foucault, M
1997 Ethics, Truth and Subjectivity: The Essential Works of Foucault 1954-1984. New York:
Free Press.

Hale, CR
Multiculturalism in Guatemala. Journal of Latin American Studies 34(3): 485-524.

Hilhorst, D
2001 Village experts and development discourse: "Progress" in a Philippine Igorot village.
Human Organization 60(4): 401-413.

Kingsbury, B
1998 "Indigenous Peoples" in international law: a constructivist approach to the Asian
controversy. American Journal of International Law, 92(3): 414-457

Li, TM
2002 Engaging simplifications: Community-based resource management, market processes and
state agendas in upland Southeast Asia. World Development 30(2): 265-283.

Malayang, B
2001 Tenure rights and ancestral domains in the Philippines - A study of the roots of conflict,
Bijdragen tot de Taal - Land en Volkenkunde, 157(3): 661-676.

Mordeno, H. Marcos C.
2001 What Ails the Indigenous Peoples Rights Act? MindaNews, Friday, 26 October.

Niezen, R
2003 The Origins of Indigenism: Human Rights and the Politics of Identity. Berkeley: UC
Press.

O'Malley, P
1996 Indigenous Governance, Economy and Society 25(3): 310-326.

Smith, LT
1999 Decolonizing Methodologies: Research and Indigenous Peoples. London: Zed Books.