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Labina v Lainej [1969] TTLawRp 15; 4 TTR 234 (31 January 1969)

4 TTR 234

LABINA,
Plaintiff

v.

LAINEJ,
Defendant

Civil Action No. 197
Trial Division of the High Court
Marshall Islands District

January 31, 1969

Action to determine who is leroij lablab of certain land on the eastern side of Arno Atoll, Marshall Islands. The Trial Division of the High Court, Robert Clifton, Temporary Judge, held that court should not establish an iroij lablab where no definite choice had been made by the people concerned.

1. Marshalls Custom - Succession to Titles -- Generally

The manner of succession as to alabs applies to the pattern followed in the succession to the iroij lablabs and iroij eriks among the nobility class in the Marshall Islands.

2. Marshalls Custom - Succession to Titles - "Kajur"

Under Marshallese custom it is widely held that a member of the commoner class - a Kajur - cannot succeed to the office of iroij lablab or iroij erik.

3. Marshalls Land Law - "Iroij Lablab" - Succession

Where there was a reasonable uncertainty as to the rightful successor or whether there was any successor at all to the position or office of iroij lablab in respect to certain lands as to make substantial numbers of owners or interested parties hesitate before declaring their recognition, the individual claiming such office addition to proving that he is entitled by birth and blood to succeed to that office, must also show that the persons having rights in such lands have recognized the claimant, either by words or conduct, in such fashion as to evince an unmistakable choice.

4. Marshalls Land Law - "Alab" - Succession

An adopted child possesses much the same rights as the biological children except that he may only become alab of land of the lineage into which he has been adopted upon the extinction of all lineage relatives.

5. Marshalls Custom - Succession to Titles - Generally

Action in appointing person out of normal line of succession to leroij lablab in effect extinguished idea of succession according to the ordinary pattern of inheritance.

6. Marshalls Custom - Succession to Titles - Generally

On the general question of inheritance under the custom as it existed in the Marshall Islands on December 1, 1941, it must be found that there was no automatic succession to the office or rights of an iroij lablab, no inflexible or undeviated rule or pattern that must be followed on the death of an iroij lablab.

7. Marshalls Land Law - "Iroij Lablab" - Succession

Even in a case where a person by birth and blood is unquestionably entitled to the office of iroij lablab, if there is substantial opposition by the persons owning rights in the lands in the Territory where there has occurred a vacancy in the office of iroij lablab, the High Court should not by order or decree establish the person as iroij lablab.

8. Marshalls Land Law - "Iroij Lab]ab" - Limitation of Powers

Most of the former functions of iroij lablab in relation to the protection and welfare of the people have been taken over by the government under the German and Japanese administrations and also under the American administration.

9. Marshalls Land Law - "Iroij Lablab" - Limitation of Powers

The powers of the iroij lablabs in relation to land tenure have been held to be limited or circumscribed; they are subject to the review of the courts as to whether they are reasonable and just.

10. Marshalls Land Law - "Iroij Lab]ab" - Succession

Court will not establish an iroij lablab where no definite choice has been made of the iroij lablab by the people concerned.

CLIFTON, Temporary Judge

OPINION

This action and four other actions in which the plaintiff Bina (also known by the more formal name Labina) is also the plaintiff were consolidated for trial. Each action involves land located on the eastern side of Arno Atoll in the Marshall Islands, and the plaintiff contends in regard to each parcel of land that she is the leroij lablab of said land. (Leroij lablab, sometimes called leroij elap, is the feminine of iroij lablab.) The defendants in each action deny that Bina is or is entitled to be the leroij lablab. The defendants are the holders of iroij erik, alab or other rights in the lands involved.

For a description of the titles of nobility, etc., and the levels of land tenure in the Marshall Islands, see the opinion of the Appellate Division of the High Court in Jatios v. Levi, 1 TTR 578.

The disputes reflected in the present actions are of long standing, dating back to the time of the death of Liwaito (f), the leroij lablab of the eastern part of Arno Atoll, who died in 1932 during the Japanese administration. The plaintiff's claims that she, Bina, is the leroij lablab may be divided roughly into four subdivisions:

1. That she by birth and blood as the daughter of Lijanbit, as evidenced by the genealogical chart which was received in evidence in Marshall Islands District Civil Action No. 23, 1 TTR 113, is entitled to be recognized as the leroij lablab. The parties to these actions have stipulated that said chart correctly depicts the genealogy involved in these actions.
2. That she was entitled to be leroij lablab but allowed her brother Jiwirak to act for her and to be elected or selected to be the iroij lablab in 1956 and upon his death in 1964 she was entitled to succeed him.
3. That Lijanbit, the mother of plaintiff and Jiwirak, was adopted by Ujlan (also spelled Wijlan) and upon Liwaito's death and the dying out of the bwi.is of Ujlan and Liwaito that because of the adoption of Lijanbit the plaintiff and Jiwirak were entitled to succeed Liwaito.
4. That plaintiff and her brother Jiwirak have been recognized or accepted as iroij lablab by each of the defendants or their predecessors and this confirms plaintiff's rights to act as leroij lablab.

The factual or historical situation involved in the question of the right of succession to Liwaito has been mentioned in the reports of several actions in the Trial Division of the High Court. In the pre-trial order in the present action, No. 197, Chief Justice Furber said, "For background information reference may be made to Lainlij v. Lajoun and Others, Marshall Islands District Civil Action 23 [1 TTR 113], and Liwinrak v. Jiwirak T., Marshall Islands District Civil Action No. 82 [1 TTR 107, 231, 595]. It is to be noted that in the present action the plaintiff does not claim that the defendant Lainej has ever recognized either Jiwirak or Bina as the iroij lablab of the wato in question."

The plaintiff claims that her rights have been settled by the decision in Action N0.23, 1 TTR 113, heretofore mentioned. An examination of that decision, however, shows that actually it only held that the plaintiff in that action, Lainlij, having recognized Jiwirak as iroij lablab could not "turn his back" on Jiwirak and refuse to recognize him. This conclusion as to the effect of the decision follows partly because the decision in said case said in part, "It should be clearly understood that the court in this action is only passing judgment on the rights as between the parties in the particular lands involved in this action. Many of the principles relied upon would have no application to persons who have never recognized Jiwirak as iroij lablab and whose predecessors in interest have never done so." This view of the opinion by the then Chief Justice Furber is supported by the statement of Associate Justice Toomin in Action No. 82, 1 TTR 107, 231, 595, (commenting on Action No. 23, 1 TTR 113) as follows:-

"The theory of the court in temporarily, at least, confirming Jiwirak in his claim to the succession, was that there had been recognition of his claims by the plaintiff in that case, and that by virtue of plaintiff's such conduct (in that case) he was precluded from later 'turning his back' and joining the opposition. It was therefore upon the basis of acceptance and recognition that the Lainlij decision was based, and not upon an automatic accession bottomed upon birth and blood. This court therefore holds that where, as here, there is such reasonable uncertainty as to the rightful successor, or whether there is any successor at all, as to make substantial numbers of owners or interested parties hesitate before declaring their recognition, no valid claim to the succession can be effectively made with respect to any lands, unless and until the persons having rights in such lands have recognized the claimant, either by appropriate words or conduct, in such fashion as to evince an unmistakable choice. To hold otherwise would impose an onerous burden on innocent persons which the law should be chary to sanction."

What is said here in relation to the right of inheritance to the office of iroij lablab or leroij lablab by blood, has been in the light of the inheritance pattern which existed in the Marshall Islands as described in "Land Tenure of the Marshall Islands", heretofore mentioned in the quotation from Jatios v. Levi, supra. Said anthropological work "Land Tenure in the Marshall Islands" has the following to say as to the inheritance pattern:-

(Page 16.)

"INHERITANCE PATTERN

"The Marshallese system of inheritance of land rights is principally matrilineal. Lineage (bwij) members trace descent from a common ancestress (alab) for the purpose of claiming land rights. The original lineage normally has been split into associate lineages descended from sisters. These associated lineages are known as the older lineages (bwij errito) or (jiob), middle lineage (bwij iolab), (all intermediate bwij are known as bwij iolab no matter how many there are) and younger lineage (bwij eriklok), according to the relative ages of the common ancestresses who belong to the same clan or 'jowi'.
"Initially the senior sibling in the senior lineage is lineage head followed by all of the surviving brothers and sisters in chronological order. After all of these siblings have been alab, the next generation, personified in the oldest child of the oldest female, becomes alab and is in turn succeeded by his or her siblings in chronological order. This pattern of succession continues in one maternal line of descent until the line becomes extinct; in this case, the next associate lineage in order of seniority will inherit the 'alabship' and rights in a particular piece of land or lands. Every Marshallese is, as may be seen, a potential alab.
"Although theoretically, relative age is the determining factor in succession to the position of leadership, in practice, a younger brother assumes all of the duties and responsibilities of the position from an older sister who by virtue of seniority is alab. He will become alab 'de facto' but she will remain alab 'de jure' and will be respected and deferred to as alab. Her brother will bring her the alab(s) share of the produce of the land but will relieve her of all of the burdensome duties connected with the position, for example, Kabua Kabua, a paramount chief of Relik, has three older sisters, but he assumed the alab position because he is a male. After he dies, his older sister remaining will assume the position of alab, followed by her eldest child, in the pattern previously described.
"Males assume this trusteeship position unless the women are very strong or have no male relatives to take over for them. If the male who inherits the alab position is too old, feeble or otherwise incompetent, the next in line of succession will assume the responsibilities of the alab; he will in effect be the representative or regent for the alab. The alab will be recognized and honored as such by his own people. However, if the females in the lineage become extinct, (bwij elot), which has happened in the case of the royal lineage of Relik, the alab or the chiefly positions may be inherited patrilineally for the one generation, from fathers to sons and daughters in chronological order as described previously, after which they pass in matrilineal line of succession which is the ideal pattern of inheritance and the one followed in the main. However, as in other cultures, the custom is sometimes honored in the breach. Deviation from the accepted custom has been and still is the basis of disputes."

[1,2] What has been thus described as to alabs applies to the pattern followed in the succession to the iroij lablabs and iroij eriks among the nobility class in the Marshall Islands. Under Marshallese custom it is widely held that a member of the commoner class - a "Kajur" cannot succeed to the office of iroij lablab or iroij erik.

Another anthropological work which sheds some light on inheritance patterns in the Marshall Islands is "Majuro, a Village in the Marshall Islands" which was also mentioned in the quotation from Jatios v. Levi, supra. The portion of said work which is of chief interest here is the portion headed "Class Structure" commencing on p. 74 and "Paramount Chiefs and Cleavage in Village Society" commencing on p. 82. Both the anthropological works mentioned indicate that there were occasional breaches or deviations from the "ideal" inheritance patterns - which caused or followed disputes or actual wars.

In relation to the first claim or contention of the plaintiff that she, by birth and blood as the daughter of Lijanbit, is entitled to be recognized as the leroij lablab of the eastern side of Arno Atoll, including the lands in question in this action, counsel for the defendants have not pointed out on the genealogical chart mentioned, anyone who might have a superior claim by birth or blood to that of the plaintiff. And in none of the actions involving Jiwirak was it shown that any named person at that time had a better right to be iroij lablab than Jiwirak.

The genealogical chart in Action No. 23, 1 TTR 113, and the testimony shows that on Arno Atoll there were six bwijs. They were headed as follows:-(Starting with the "highest" or "oldest" bwij.)

1. Leikman (m) (also known as Tawij)
2. Likon (f)
3. Libo (f)
4. Lijuruwe (f)
5. Liwaito (f)
6. Lakieotak (m) (also known as Lajiwirak).

Lakieotak had five brothers and a sister as follows: Larilan, Lakiwa, Ujlan, Leoninmato, Lijolbo (f). None of these left any children so that this bwij died out (bwij elot) at the death of Lakieotak and his siblings. However, before their deaths this bwij, under Lakieotak, started a war against the highest bwij under Leikman and was victorious. As a result of the victory, Arno Atoll was in effect divided, Lakieotak, the victor, getting the eastern half and Leikman retaining the western half. On the death of Lakieotak, Larilan succeeded him to be in turn succeeded by Ujlan as the iroij lablab as to the eastern half. Ordinarily under Marshallese custom an iroij lablab cannot name or by will appoint or designate his successor, but because of the war and the victory of Lakieotak's bwij, finally headed by Ujlan, it seems to have been conceded that Ujlan had the "power" to name his successor and he did, naming Liwaito (f), the daughter of Liwaito, the head of one of the six bwijs mentioned, as leroij lablab. So she, without apparent question, succeeded Ujlan as the leroij lablab of the eastern half of Arno Atoll. It is important to note that, in making his choice, Ujlan did not go back to the ordinary inheritance pattern that might have existed before the war but chose Liwaito of a bwij lower than that of Leikman, Likon, Libo and Lijuruwe and their descendants. This included skipping over Lanitimur, the oldest daughter of Libo, and Lijanbit, the oldest daughter of Lanitimur. This, despite the fact that Ujlan had adopted Lijanbit, and had given her Kojbwe Island, making her an iroij erik. (Lijanbit was the mother of Jiwirak and Bina, the plaintiff.)

Meanwhile, back on the western half, the ordinary inheritance pattern was followed and Leikman (m) was succeeded by Deved (m) and Laelan (m) who in turn were succeeded by Tobo (m), the son of Limetto (f). On the death of Tobo he was succeeded by Leben (m), the son of Lielbod (f) who was a daughter of Libo. (Leben died recently, leaving surviving him his sister Nenjir.)

From the testimony it would seem that after the war it was considered that the division of Arno Atoll mentioned had in effect changed the succession to the office of iroij lablab on Arno Atoll with the rights of those who would ordinarily succeed Leikman being curtailed or limited so that the groups, lineages, or members of bwijs which supported him would have rights as to the western side and the other groups, lineages, or members of certain bwijs would only have rights as to the eastern side.

(The genealogical chart from Action No. 23, 1 TTR 113, does not show the deaths prior to and after its preparation nor does it show the effect of the split of the bwijs or lineages - that is, the division of Arno Atoll so that Liwaito was the leroij lablab of the eastern side and Leikman, and then Deved and Laelan of one generation and Tobo, the son of Limetto (see genealogical chart) of another generation, succeeding to the office of iroij lablab of the western side of Arno Atoll - with Leben (the son of Lielbod, also known as Lilbor) succeeding Tobo.)

Apparently, in the minds of those concerned, the split or cleavage of the office of iroij lablab resulting in one for the eastern side and one for the western side has been accepted. When Liwaito died, Laelan was also dead and he had succeeded by Tobo as to the western side, and during the 24 year period that followed Liwaito's death there apparently was no attempt to have Tobo succeed Liwaito.

There is no claim in this action on behalf of Nenjir, the sister of the deceased Leben who succeeded Tobo as iroij lablab on the western side of Arno Atoll. And as to the western side, apparently Bina makes no claim that she has a right to be leroij lablab of that side as against Nenjir.

Nenjir, incidentally, at this sitting of the High Court was recognized by Rilan, also known as Larilan (who is the son of Limadre, who was a sister of Lijanbit) as having the leroij lablab rights as to the western side of Arno Atoll, as indicated in the judgment by consent entered today in Action No. 330, Nenjir v. Rilan, 4 TTR 277.

Liwaito died in 1932 in the time of the Japanese administration. She left no children, and so her bwij died out and the bwij of Ujlan had also died out, so there arose the big question involved here - who should succeed Liwaito as iroij lablab of the eastern side of Arno Atoll? Neither the plaintiff Bina, nor her younger brother Jiwirak, immediately succeeded Liwaito as iroij (or leroij) lablab as to the eastern side of Arno Atoll. It was 24 years, in 1956, until Jiwirak was "elected", "accepted" or "recognized" as the iroij lablab. During the first part of this time, under the Japanese, no agreement was reached as to a successor to Liwaito. In 1944 and in 1950 the American administration unsuccessfully attempted to secure the selection of a successor to Liwaito. This is shown in Action No. 1 TTR 113, which was an action by an iroij erik who had supported Jiwirak's claims to succeed Liwaito. Part of the findings and judgment are as follows:-(There is also attached to this opinion a copy of the letter of 28 May 1948.)

"After Liwaito's death, the Japanese administration had endeavored to have the people on the lands formerly under her agree upon the establishment of a successor to her. Several attempts had been unsuccessfully made to reach a general agreement on the matter and pending further determination the Japanese administration had undertaken to make at least the more important decisions that would normally be by an iroii lablab, and had itself collected, at first the part of the iroii lablab share to be used for hospital and other medical expenses, and later the whole iroij lablab share from her lands.
"The attempted establishment of defendant Jiwirak as the successor of Liwaito, as iroij lablab, at the public meeting with an American military representative in 1944, was proper under Marshallese custom as a first step, but it has not received support of enough people on Liwaito's former lands, continued for a long enough time, to make it fully and firmly effective as yet, but it may later become so.
"Cdr. Kenney, in 1950, while Civil Administrator of the Marshall Islands, modified Lt. Cdr. Herrick's determinations set forth in his letter of 28 May 1948, by expressly permitting at least those alab (persons in immediate charge of a piece of land) and their dri jerbal (workers) who desired to recognize and support the defendant Jiwirak as iroij lablab on Leroij Lablab (Paramount Chieftess) Liwaito's·former lands. This inferentially extended the same permission to the iroij erik."

The judgment in said case provided:-

"The defendant Jiwirak is entitled to act as iroij lablab until such·time, if any, as there is some other clear establishment concerning the exercise of the powers of the former Leroij Lablab Liwaito."

It should again be noted, however, that the court in Action No. 23, 1 TTR 113, in its conclusions of law stated:-

"It should be clearly understood that the court in this action is only passing judgment on the rights as between the parties in the particular lands involved in this action. Many of the principles relied upon would have no application to persons who have never recognized Jiwirak as iroij lablab and whose predecessors in interest have never done so."

Some of the testimony in these cases showed that much of the opposition to Jiwirak was headed by Iroij Erik Felix. The plaintiffs (Bina's) own testimony as to the reason why neither she nor Jiwirak became the iroij lablab right after Liwaito's death is as follows:-

(Note: The witness obviously meant that Felix was the father of Jiwirak "under the custom". Other testimony showed that the real father of Jiwirak was Tobikle. As to the word "intel", its meaning was "collector", so that an iroij erik who performed the function of collecting the share for the iroij lablab and himself was called an "iroij intel".)

From plaintiff's own testimony, then, it would appear that Jiwirak's rights and her own depended on an alleged will of Liwaito, and not exclusively from a definite right to succeed by blood, and that it was because of the alleged hiding of the will and also because of the failure of the iroijs to elect Jiwirak that he didn't immediately succeed Liwaito.

Some of the witnesses in this action also testified that as Lanitimur (the mother of Lijanbit who was the mother of Jiwirak and Bina) and her bwij were on the other side of the war between Lakieotak and Leikman that Bina and Jiwirak should not succeed Liwaito. Apparently this testimony reflected the reason Ujlan designated Liwaito as his successor instead of Lijanbit. Another of plaintiff's witnesses, Lian, stated that the reason why Jiwirak was not the iroij lablab for 24 years was "because the iroij eriks and the alabs didn't get together to have him take his right."

This is similar to one part of the testimony of Bina, above quoted.

In 1956, however, Jiwirak was elected or selected as iroij lablab by most of the iroij eriks and by most of the alabs. Jiwirak then acted as iroij lablab until his death in 1964. However, his right to act as such was contested by a few iroij eriks and a few alabs. In Action No. 81, Abijai v. Jiwirak, 1 TTR 389, Abijai, according to the findings of fact in that case, was the iroij erik of Korej and Lobol watos on Matollen Island. From the time of the death of Liwaito in 1932 no iroij lablab share of the copra production had been paid to Jiwirak although the alabs had, over the objection of Abijai, the iroij erik, recognized Jiwirak as having the iroij lablab rights. Associate Justice Toomin held in Action No. 81, 1 TTR 389, that Jiwirak was the iroij lablab and entitled to a share as such, but that Abijai could continue as iroij erik without according to Jiwirak the "personal indications of esteem required of an iroij erik who has participated in promoting and recognizing the iroij lablab's accession." In the decision, Judge Toomin refused to declare that Jiwirak was not the iroij lablab as the successor to Liwaito, saying that the court must follow the holding in Action No. 23, 1 TTR 113. This was apparently because the alabs had recognized Jiwirak although Abijai had not recognized him.

However, in the next numbered case (which Chief Justice Furber referred to in his pre-trial order as heretofore stated), Action No. 82, Liwinrak v. Jiwirak T., 1 TTR 394, entered on March 31, 1958, the same day as the judgment in Action No. 81, 1 TTR 389, the decision of Associate Justice Toomin was against Jiwirak. In regard to the watos in question in that case, the plaintiffs mother KIene had been the alab during the lifetime of her mother Limoron who died in 1946. There had been no iroij erik on this wato but Liwaito who died in 1932 had been the leroij lablab and received a share as such until her death. After the death of Liwaito no iroij lablab share was paid to anyone. In 1957 Jiwirak entered on said watos claiming that he was the rightful successor to Liwaito and removed 500 pounds of copra therefrom. Justice Toomin found that there never had been any recognition by either KIene or Limoron of Jiwirak as iroij lablab of the wato involved and in the conclusions on which were based the judgment holding that Jiwirak had no right to enter on said watos and prohibiting him with interfering with the plaintiff and requiring Jiwirak to pay plaintiff therein for the copra he had taken, Justice Toomin said:

"Defendant Jiwirak claims to be the true successor to Liwaito, the former iroij lablab over the subject wato. From the genealogical chart of the family of Liwaito heretofore received in evidence in Lainlij v. Lojoun, 1 TTR 113, and from other evidence received in that case on behalf of defendant Jiwirak, it appeared that he was among the class of persons having the necessary relationship to Liwaito, which would entitle them and him to recognition as iroij lablab in succession to her with respect to the numerous wato over which she was admittedly enjoying iroij lablab rights at the time of her death. Because of the possibility of others having an equal or better right, the court in Lainlij, supra, decreed that Jiwirak was entitled to act as iroij lablab over the properties involved in that case, until such time, if any, as there should be some other clear establishment of the proper person to exercise the powers of the former Leroij Liwaito.

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