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Levi v Kumtak [1953] TTLawRp 1; 1 TTR 36 (1 June 1953)

TRIAL DIVISION OF THE HIGH COURT

MARSHALL ISLANDS DISTRICT

Combined Civil Action No.1

L. LEVI and Others
Plaintiffs

v.

KUMTAK and Others
Defendants

June 1, 1953

See, also, 1 T.T.R. 578

Action to determine alab and iroij lablab rights on Majuro Atoll. The Trial Division of the High Court, Associate Justice James R. Nichols, held that official act of previous administering authority, which is clear departure from Marshallese custom, constitutes change in customary law which Court is bound to uphold under T.T.C., Sec. 24.

1. Former Administrations-Redress of Prior Wrongs

It is not proper function of courts of present administration to right wrongs which may have for many years before been persisted in by former administration.

2. Marshalls Land Law-"Iroij Lablab"-"Jebrik's Side" of Majuro

Although decision of Japanese Government, not to have any iroij lablab) for "Jebrik's side" of Majuro Atoll was departure from Marshallese custom, it was clear determination by administering authority, making exception to or change in customary law.

3. Former Administrations-Change in Custom

Clear departure by former administration from customary law will not be disturbed where change persisted for twenty years prior to United States administration.

4. Trust Territory-Land Law

Court is bound to uphold land law in effect in Trust Territory on December 1, 1941, until it is changed by express written enactment made under authority of Trust Territory of the Pacific Islands. (TTC, Sec. 24)

5. Marshalls. Land Law-"Iroij Lablab"-"Jebrik's Side" of Majuro

Property rights formerly held by, and obligations due from, iroij lablab of "Jebrik's side" of Majuro Atoll, have passed to Government of the Trust Territory.

6. Marshalls Land Law-"Iroij Lablab"-"Jebrik's Side" of Majuro

Failure of American Administration to exercise iroij lablab powers on "Jebrik's side" of Majuro Atoll, previously held by Japanese Government, does not constitute waiver of such rights.

7. Former Administrations—Recognition of Established Rights—Marshalls Land Law—"Alab"—Succession

Heir of person recognized as alab by Japanese Administration is entitled to such rights pursuant to clear determination of Japanese Government.

8. Marshalls Land Law—Generally

When substantial number of persons in community question another's title and land rights under Marshallese custom, party is excused from his refusal to honor such rights until court rules on question.

NICHOLS, Associate Justice

FINDINGS OF FACT

1. At the close of the civil war on Majuro Atoll, when the atoll was divided between the Iroij Lablab Jebrik Kapelle and Iroij Lablab Kaibuke, it was agreed that people living in an area controlled by one iroij lablab could not work on or acquire interests in land in the area controlled by the other iroij lablab without the permission of both iroij. Those people who were permitted to do so were called "two shoulders" or "roire". All the land in question was included in that assigned to Jebrik Kapelle in the division referred to above.

2. Upon the death of Iroij Lablab Jebrik Lukotworok (who was the iroij lablab of the portion of Majuro Atoll assigned to Jebrik Kapelle in the division referred to in the foregoing paragraph) in 1919, a representative of the Japanese Government supported Drele as Jebrik's successor. Drele had already become iroij lablab of "Kaibuke's side". Under the Marshallese system of matrilineal succession, Drele was the proper person to succeed Jebrik Lukotworok as iroij lablab, unless he was disqualified because he was related to Jebrik Lukotworok through Iroij Lablab Kaibuke who had fought against Iroij Lablab Jebrik Kapelle. Not more than six years later, upon representations made by two of Jebrik Lukotworok's former retainers named Livia Jeremaia and Lazarus Simon, a Japanese policeman named Tanaka ousted Drele iroij lablab of Jebrik's side and approved a division of the property owned by Jebrik Lukotworok proposed by Livia Jeremaia and Lazarus Simon and represented by them to be in accord with Jebrik Lukotworok's desires. This was an official act of the administering authority. By the terms of this property settlement, the position of iroij lablab was left vacant and Likio was one of those recognized as an iroij erik. The land of which she was recognized to be iroij erik included all of the land in question in this action. Although this arrangement was slightly modified by a letter written by Juluit Jijojo (i.e., the Japanese Administrator stationed at Jaluit) to Jitiam, dated April 7, 1933, a translation of which is attached hereto, the Japanese Government consistently refused to bring the two sides together for more than twenty (20) years, right up to the time of the occupation by the United States Forces.

3. Likio was also recognized as iroij erik by Alabs Lebelok and Likuplik.

4. When the defendant Kumtak and the plaintiff Levi discussed certain property rights with a Japanese Government official about 1935 on Rongrong, it was concluded that the Japanese would recognize Likuplik as alab of all the land in question, would recognize Elelan as ninnin land, and would recognize Levi and his brothers and sisters as the holders of the dri jerbal rights to that wato.

5. Jitiam was an iroij erik in Japanese times. About 1944 a senior U.S. Naval Officer in a formal ceremony presented a medal to Jitiam and a medal to defendant Lainlen. This was construed by many to mean that Jitiam was recognized by the United States Government as iroij lablab of Jebrik's side, at least for ceremonial purposes. There was no showing that Jitiam ever attempted to exercise the property rights associated with the position of iroij lablab.