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Shima v Herminos [1988] TTLawRp 3; 8 TTR-627 (8 July 1988)

TOSHIWO SHIMA, et al., Plaintiffs-Appellees

v.

NAMO HERMIOS, et al., Defendants-Appellants

Civil Appeal No. 428

Appellate Division of the High Court

Marshall Islands District

July 8, 1988

Appeal front judgment of trial division holding that appellee was the alab of four wetos. The Appellate Division of the High Court, Munson, Chief Justice, affirmed the judgment of the trial division, since evidence abundantly supported its finding, that a bwilok existed, approved by the iroij laplap, and that all four of the wetos awarded were on the list of wetos in issue.

1. Marshalls Land Law—"Bwilok"

Trial court properly found that a bwilok existed and that the iroijs confirmed such bwilok, based on testimony determined to be reliable and documentary evidence.

2. Marshalls Land Law—"Alab"

On appeal from judgment of trial division holding that appellee was alab of four wetos, claim was rejected that one of the wetos awarded was not on the list of wetos in issue.

Counsel for Appellant: DAVID M. STRAUSS, Chief Public
Defender, Republic of the Marshall Islands
Counsel for Appellee: LANGINMO JACOB, Trial Assistant
Before MUNSON, Chief Justice, KOZINSKI, Associate Justice", and TEVRIZIAN, Associate Justice"

MUNSON, Chief Justice

Appellant Capitol Labwirrik appeals from the judgment of the trial division which held that appellee Kendall Lejon is the alab^[1] for the four wetos^[2] Awao, Monlomar, Tur, and Turko on Wotje island, Wotje Atoll, Republic of the Marshall Islands. Additionally, appellant asserts that one of the wetos, Tur, was not on the list of wetos in issue and therefore the trial division erroneously awarded the alabship of the weto to appellee. Because the trial division's findings of fact are not clearly erroneous and its evidentiary rulings are consistent with substantial justice, Bina v. Lajoun, 5 T.T.R. 366, 369-70 (1971), we affirm.
In or about 1917, Labwirrik (appellant's father) broke the arm of Alab Keju (appellant's great uncle) in a fight over a woman. As a result of this dispute, the trial division found that a bwilok,^[3] approved by the iroij laplap,^[4] occurred whereby the group of wetos controlled by Alab Keju was divided upon his death between two alabs, who were cousins, Labrirrik (a member of appellant's bwij^[5]) and Lojen (a member of appellee's bwij).

Under a strict application of the order of hereditary land rights in the Marshalls system, in the absence of a bwilok, Labwirrik would have held the alabship of all of the wetos controlled by Alab Keju. Lojen would have succeeded Labwirrik as the oldest living child of the oldest female in Labwirrik's generation. And at Lojen's death, appellant Capitol, acting for his older sister Limejit, would have succeeded Lojen as alab to all of the wetos.

The issue we are confronted with is whether a bwilok approved by the iroij Laplap, as is required by law, did in fact occur.

The trial division received sworn testimony that former iroijs approved of and confirmed the bwilok. Specifically, the trial division heard from Iroij Laplap Rimios Hermios, the iroij laplap of the land in question, ^[6]Iroij Edrie Hemmy Langmos, the iroij edrik of the same land, Mr. Ben Kiotak, who had lived on Wotje Island and who knew the history of Wotje, and appellee, who all testified that it was well known in the community that the bwilok which is the subject of this dispute did in fact take place. The trial division determined this testimony to be reliable. Furthermore, documentary evidence presented at trial established that the iroijs confirmed the bwilok. The trial division admitted a kallimur^[7] executed by Leroij R. Langmos on September 27, 1951, that was prepared long before the present dispute arose, which confirmed the bwilok by stating that Lojen was the alab of the four wetos at issue in this case. Second, a letter dated August 22, 1964, written by Iroij Namo Hermios on behalf of Leroij Laplap R. Limojwa, also confirms that the iroij and the leroij approved the bwilok.

1. Based upon our review of the same evidence, this court is unable to conclude that the trial court made "clearly erroneous" findings of fact when it found that a bwilok oc-curred which resulted in a division of the wetos between Alab Labwirrik and Alab Lojen. The evidence which appellee submitted to the trial court abundantly supports the findings that a bwilok existed and that the iroijs confirmed the bwilok. The trial court did not abuse its discretion.
2. It is undisputed that Tur is not among the wetos listed in Leroij Laplap R. Limojwa's letter dated August 22, 1964. However, the official court transcript reveals that appellant's counsel, prior to making his opening statement, asked for and received a stipulation from appellee's counsel that the court include the weto Tur with the other wetos that were in issue, in its determination of ownership. Based upon the record of the trial proceedings, it is clear that Tur was intended to be among the wetos included in Limojwa's letter and indeed was placed in issue by appellant. Accordingly, this court finds that the trial court did not err when it found that Tur was among the wetos over which appellee alab rights had.

Based upon the foregoing, the judgment of the trial court is AFFIRMED.

This opinion shall not affect any rights of way over, across, or upon the subject wetos.

No costs are assessed in favor of or against any party.

*Judge of the United States Court of Appeals, Ninth Circuit, designated as Temporary Associate Justice by the Secretary of Interior.
**Judge of the United States District Court, Central District of California, designated as Temporary Associate Justice by the Secretary of Interior.

¹ An alab is a person in immediate charge of a piece of land.

^[2] A weto (sometimes spelled wato) is typically a strip of land stretching across the island from the lagoon side to the ocean side, varying in size from about one to five acres. The weto is the typical Marshallese land unit.

^[3] A bwilok is a cutting off, usually after an argument, resulting in loss or interruption of hereditary land rights.

^[4] An iroij laplap is the paramount male chief of certain lands (female, leroij laplap).
^[5] Bwij means an extended matrilineal family or lineage.
^[6] An iroij edrik is a lesser male chief of certain lands (female, leroij edrik).
^[7] A kallimur is a means by which one disposes of his or her lands, analogous to a will.