...: : : :...: \ ' ..: :..::.: ::':: .:..:;.., , :::,'...;,'.,': .:,.:,

FACT SHEET:

Tt"qc!itionql Authot"ity in pq!qu

quently much greater at the state level. Nearly all the stategovernments integrate titled leaders into their executiveand/or legislative branches. The amount of real authoritygranted to such leaders, however, varies widely among thestates (see table on the last page). In the executivebranches, for example, three states give complete decision.making power to their high chief or chiefs. At the other ex.treme, six states include no participation of traditional lead.ers in their executive branches. The remaining seven stateshave opted for an intermediate level of participation by theirchiefs, giving them limited decision.making power or merelyadv~ory functions. This range of power is similar in the

states' legislative branches. The legislatures of two statescontain only titled leaders. Seven have a mix of elected andtitled members. One has two houses-one elected and onetitled. The remaining six states have legislatures that areentirely elected.

The Palauan system of government has three interdependentauthorities-national, state and traditional. The Constitution,effective since 1981, is the supreme law of the land.

The national government has an executive branch, led by thePresident, a two.house legislature, and a judiciary. The coun.try is divided into 16 states-what were municipalities underthe Trust Territory government. Each state has its own ex.ecutive and legislative branches. The state governments aresubsidiaries of the national government and derive their power

from the national government. The Palau Constitution pro.vides that the states have only those powers specificallygiven by the national government or specifically denied to thenational government.

Palau's traditional system of government has been supersededto a large extent by the constitutional government. But thetraditional system still exists and operates both within andoutside the constitutional government.

\" \

\::\

Participation by titled leaders in the national government islimited. The government has a Council of Chiefs that has theauthority to advise the President on customary matters.There is no participation of traditional leaders in the nationallegislature (Olbiil Era Kelulaul.

In contrast to the national government, the state governments

are constitutionally mandated to follow both "democratic prin.ciples" and "traditions of Palau," and chiefly power is conse.

...""

~ , ,-

~

Ptoc\uce~-P-alau ConsetVation So~ety

Artwork by Margo Vitarelli

~

~

ary dispute processes. But the courts hnve stated thatthey do have the authority to take over and supervisetraditional matters in order to quiet controversy, bringpeace, and settle differences among participants de-spite the threat of degrading and diminishing customary

processes. Thus, the courts are the ultimate arbitratorof an disputes-even over customary law, and the na-

ture of customary law has consequently changed. For

example, in settling disputes over customary law, thecourts have focused on establishing what, exactly, the

-customary- law or process is, then deciding whetherthe litigants conformed with that law or process. In

making its determination, the court essentially estab-lishes that custom in modern law. Being in writing andused as a precedent for future court cases, these deci.sions serve to universalize and freeze these customs-

possibly making them less capable of evowilTg to bettercope with future problems.

While the states have a choice about how democratic ortraditional their governIMnts are, the courts have made itclear through several cases that there are limits-thestates may not stray too far in either direction. For exam-ple, the courts have found that -key- state governIMntofficials must be elected and the electorate must be giventhe opportunity periodicilly to determine whether to retainor replace those officials through elections. Just which

government positions are -key ,- however, is still an open

question.

In addition to titled authority being integrated into the state

governments, the constitution recognizes that traditionalleaders and law still retain their customary authority andcan operate as a system of government on their own. But

thlre are limits to traditional authority. The constitutionstates that -statutes and lraditional law shall be equally

authoritative. In case of conflict between 8' statute andtraditional law, the statute shall prevail only to the extent itis not in conflict with the underlying principles of the tradi-

tionallaw.. Palauan customary law is therefore valid only~s long as it does not conflict with any statute. For exam-ple, one court case found that -where a crime is commit-ted, the criminal cannot use custom as a shield from prose.

' "cutlon.

Land and sea tenure

Traditionally, Palauan land was divided into politicalunits called beluu, or villages. Boundaries were in flux,determined by warfare and other factors, and generallyextended as far out to sea as one could travel by canoeand still see the islands. The territory of each beluu

was divided into clan lands, chetemela blai, and publicdomain land, chutem buai. Public domain land, which

comprised the bulk of land in Palau, was land notclaimed by any clan, lineage! or individual. This landwas managed by the village council. Land owned by

clans and lineages comprised less than half of Palau'sland. Alienation of clan land could be done via trade,

sale, mortg., Hrvice reward, marriage exchange, orpunitive fine, and with the exception of the last option,

Palau's courts have in many instances upheld the validityof customary law. However, the fact that matters of cus-

tomary law have reached and been considered by thecourts so many times is itself indicative of limits to the

authority of customary law. The courts have been reluc-tant to hear cases arising purely out of tradition and cus-tom, in some cases referring the litigants back to custom-

~

~

~;~

could not be alienated without the approval of the strong

members of the clan.Traditional authority and the

management of natural resources

Palau was governed by a series of occupying powers dur.ing most of this century , and these governments took

large portions of Palauan land under their control. Landnot being used at the time, regardless of ownership, wastaken as public land. What was not declared public was

registered as private in the oHicialland registry under thenames of individuals. This was done regardless ofwhether the land had belonged to an individual or to his orher clan or lineage.

1" the past, Palau's traditional leaders were the caretakers ofthe resources of the land and sea. Today, much of that re.

sponsibility has been taken over by the national and stategovernments. But as described above, the constitutiongrants the chiefs considerable authority to continue in theirtraditional roles. They may exert their authority both

through purely customary processes and through the state

governments.

In fact, both the states and the chiefs appear to be taking

more control over how Palau's natural resources are used.There have been more and more examples of chiefs declaringbul (taboo or closure) over certain areas or resources. In1994, for example, the chiefs of Kayangel and Ngarchelongin northern Palau together put a seasonal but on eight reefchannels known to be spawning grounds for groupers andother fishes.

T oday land in Palau is owned either privately-by individu.

als, clans or lineages, or publicly-by the national or state

governments. With Palau's recent independence, therehas been a move to return wrongfully taken land to its

original owners.

The Palauan Land Court, created in the Land Claims Reor-

ganization Act of 1996, is responsible for determiningownership of all land within the Republic. The goal is thatby the end of the century, all land once owned by indi-

viduals, clan, or lineages will have been returned to thosepersons or groups and the remaining land will be publicdomain. Public land is managed by the Palau Public LandAuthority and eventuaHy will be transferred to each of thestate public land authorities.

The state governments, with their mixed titled and elected

leadership, are also becoming increasingly active with regardto the management of community resources. Several stateshave established permit systems for fishing and tourism.These systems control access to community resources andensure that the community receives at least some of thebenefits from. those activities. Additionally, at least six ma.rine and land areas havebe8'n established as state conserva-tion areas since 1994. One of them is Ngeruangel Reserve inthe state of Kayangel. In th!t case, the village chiefs first

declared a /lul on the area, then requested that the local gov-ernment reinforce the bul with a .state law. The governmentdid so in 1996, and the community's elected and titled lead-ers are now working out the roles of each in managing thereserve.

The Palau constitution grants the states -ownershipw ofall living and non-living resources from the land to 12miles seaward from the -traditional baselines, w provided

that traditional fishing rights and practices are not im-

paired. The national government retains control over theresources that Palau claims beyond 12 miles.

~

The Integration of Tradi~nal Leaders

into Palau's National and State Governments

EXECUTIVE BRANCH LEGISLATIVE BRANCH

..Q)

~Q

0..

=c

~ca

~

~"CccaG)"'=o

:I:

~I..)G)

w

...Q)

~Q

0..

cQ

'~uc=

L.L-

~QI/)

'>"C<~...~

~

co

.~uQ)

w...ca

==.O

0..

c"C

0)-

:E-J

00ii...

~ ~ca =u o

CQ~

cQ

';:.10Q.

'u';:....10

0..

16CQ

';:."610...

1--Q

Z

-c

~-c

'6c.c.

<I:

"'iaco

'~:sra~

1-

. .

. .

. .

Ngatpang State

Melekeok State

Ngchesar State

Aimeliik State

Kayangel State

Koror State

Airai State

Sonsorol State

National Government

Hatohobei State

Ngeremlengui State

Ngaraard State

Angaur State

Ngarchelong State

Ngiwal State

Peleliu Sta1e

Ngardmau State

..

. .

. .

. .

..

..

..

. .

. .

. .

. .

..

..

..