7 TTR 359

LITARBWIJ MOTLOK, Appellant

v.

JELKAN LEBEIU, Appellee

Civil Appeal No. 94

Appellate Division of the High Court

Marshall Islands District 

April 13, 1976

Dispute over alab rights to land. The Appellate Division of the High Court, Hefner, Associate Justice, affirmed Trial Division's finding and judgment that plaintiff, oldest descendant in matrilineal line, though descended from a smaller, younger bwij, was entitled to alab rights in certain watos, rather than defendant, descendant from oldest bwij and daughter of last recognized alab whose alab rights had ended with his death in World War II.
1. Marshalls Land Law—Lineage Ownership—Inheritance
Under Marshallese custom, lineage land is passed on from matrilineal line, not patrilineal line, so that plaintiff who was oldest person in matrilineal line, even though he was from a smaller, younger bwij, would succeed to alab rights, rather than defendant who was descendant from oldest bwij and daughter of last recognized alab whose bwij had ended with his death during World War II.
2. Marshalls Land Law—Lineage Ownership—Transfer
In order for alab to give his daughter land, land must have been capable of being given away; if land was lineage land at time of gift, alab could not give it to his daughter without obtaining consent of persons who would normally inherit in the lineage.
3. Marshalls Land Law—"Agri in Bwij"
If lineage does not concur with desire of alab to ninnin to his children, children may remain on land as agri in bwij.
4. Appeal and Error—Findings and Conclusions—Supporting Evidence
In dispute over alab interest in land, where defendant, descendant from oldest bwij and daughter of last recognized alab, now deceased, claimed that three sisters created three separate bwijs and three separate rights, and one witness testified that last recognized alab owned his wato separately, and trial court found this not to be so, but found that plaintiff, oldest descendant in matrilineal line, even though descendant from a smaller, younger bwij, was entitled to alab interest in land, and record on review was devoid of any evidence to substantiate such separation and further revealed that defendant, in a prior proceeding, claimed the property in a manner which defeated theory that a separation occurred, appellate court would not disturb trial court's finding.
5. Marshalls Land Law—"Iroij"—Powers
If an Iroij recognizes a person as alab, it must be in accordance with Marshallese custom, as to do otherwise exceeds his authority; an Iroij cannot change alab rights at will and there must be some reason to justify change.
6. Marshalls Land Law—"Iroij"—Powers
Though determination made by an Iroij with regard to his lands is entitled to great weight, in an alab land dispute where record on appeal disclosed that the present Iroij recognized defendant, a descendant from oldest bwij and daughter of last recognized alab, now deceased, whose bwij ended upon his death, as present alab, and where record further disclosed that present Iroij stated he received his information from his predecessor, but where evidence showing some occurrence or reason to alter normal succession of alab rights and allow the Iroij to recognize someone other than the plaintiff, a descendant in matrilineal line from a smaller, younger bwij, who would Stake in normal and customary way, was not present in record, and where present Iroij was unable to tell reason that defendant's father transferred land to defendant, Iroij exceeded his authority and record substantiated trial court's finding that plaintiff was entitled to alab rights.
Counsel for Appellant: ANIBAR TIMOTHY
Counsel for Appellee: JOHN HEINE
Before BROWN, Associate Justice, WILLIAMS, Associate Justice and HEFNER, Associate Justice
HEFNER, Associate Justice
This appeal concerns a dispute over who is entitled to alab interests in five watos in the Marshall Islands.
The Trial Court found that the plaintiff is entitled to be alab and denied the defendant-appellant's claim.
The Notice of Appeal cites two grounds of error. The first ground is not exactly clear, but appears to be based on the Trial Court's failure to find that the appellant was a descendent in the older lineage, and as such, her claim is stronger than the appellee, who is a member of the younger lineage. The second ground is that the Court failed to recognize Marshallese custom. It is argued that the three Iroijs, Namidrik, Andrew and Manassa recognized appellant as alab, and their determination should be final.
It is conceded that the land in question was originally lineage land. Three related bwij (matrilineal family group) were represented by three sisters, Mandrik, Liberman and Limauu. The plaintiff is a descendent of Limauu, the youngest sister. The defendant is a descendant of the oldest sister, Mandrik.
The last undisputed alab was Lokajotok, who is the defendant's father and who died during World War II.
[1] The judgment of the Trial Court points out that under Marshallese custom, property rights are passed on from the matrilineal line and not the patrilineal line. That even though the appellee was from a smaller, younger bwij, he would succeed to the alab rights since there was no one superior in the matrilineal line. Janre v. Labuno, 6 T.T.R. 133; Lenekam v. Liclrik, 6 T.T.R. 327; Land Tenure Patterns, p. 26.
The appellant impliedly agrees with this application of the custom since she attempts to circumvent this customary law by claiming the alab rights as ninnin land or land given to a child by a father. To support this claim, she has produced testimony that the Iroijs have recognized her as alab.
[2, 3] However, in order for the appellant's father to give the land to her, the appellant must show that at the time of the gift, the land was capable of being given away by the father. If the land was lineage land at the time, the father could not give it to the appellant. Ninnin land belongs to the father's issue alone and other lineages have no claim to it. Land Tenure Patterns, p. 27. The father must have the right to give it away or obtain the consent of the persons who would normally inherit in the lineage. Lokajitok, as alab, does not have independent authority over the disposition of the land unless he consults with the lineage. If the lineage does not concur with the desire of the alab to ninnin to his children, the latter may remain on the land as ajri in bwij, Land Tenure Patterns, p. 28.
[4] In order to overcome this situation, the appellant argues first that the three sisters created three bwijs and three separate rights. One witness, Komram, stated that "Lokajitok owned his wato separately from those belonging to Neilon." The Court specifically found that this was not the case, and the record, except for this one conclusion, is void of any evidence to substantiate such a separation. In fact, and as pointed out by the Trial Court, the appellant in a prior proceeding claimed the property in such a manner which defeats the theory that a separation occurred. We cannot disturb the finding of the Trial Court in this respect.
The main thrust of appellant's appeal is that the Trial Court did not follow the decision of the last three Iroijs who have authority over the land. It is clear from the record that the present Iroij recognizes the appellant as the alab. He states he received his information from his predecessor. The evidence showing some occurrence or reason to alter the normal succession of alab rights and allow the Iroij to recognize someone other than one who would take in the normal and customary way is just not present in the record. The present Iroij was unable to tell the reason that the appellant's father transferred the land to her. (Rep. Tr. p. 45)
[5] If an Iroij recognizes a person as alab, it must be in accordance with Marshallese custom. To do otherwise exceeds his authority. Likinono v. Nako, 4 T.T.R. 483. This problem of recognition of an alab, contrary to custom, was dealt with in Limine v. Lainej, 1 T.T.R. 595. It is clear that an Iroij cannot change alab rights at will, and there must be some reason to justify the change. The Trial Court could find no such justification nor can this Court. As stated in Lintine v. Lainej, supra, determination made by an Iroij with regard to his lands are entitled to great weight. However, there is nothing in the record to show why a determination was made here which is contrary to Marshallese custom.
[6] The Trial Court found that under the circumstances in this case, the Iroijs exceeded their authority. The Appellate Court shall not set aside findings of fact of the Trial Court unless the Trial Court was clearly erroneous. 6 TTC § 355(2). The record, in fact, substantiates the Trial Court finding.
The judgment is Affirmed.