President Joe Biden’s administration is under pressure to reject racist case law that helps shape the federal government’s relationship with U.S. territories.

But some residents of at least one Pacific territory are concerned about the potential implications of upending the current precedent, which has also been used to justify local laws limiting land ownership.

The American Civil Liberties Union joined several other civil rights groups to send a letter to the Department of Justice this month urging the Biden administration to disavow the Insular Cases.

“The Insular Cases represent a shameful legacy in our Nation’s history,” the groups wrote, noting the justices ruled the “alien races” in U.S. territories weren’t entitled to the same constitutional protections as residents of U.S. states.

Pago Pago International Airport
Visitors may fly into Pago Pago International Airport, but they cannot buy land once they’re there unless they’re one-half Samoan. Eddy23/Wikimedia Commons

The letter was prompted by two cases related to the rights of residents of U.S. territories. U.S. Supreme Court justices are currently debating one case, United States v. Vaello-Madero, that deals with whether residents of Puerto Rico should have access to Supplemental Security Income that’s available to residents of U.S. states.

Another case, Fitisemanu v. United States, involves American Samoans who live on the mainland and say they should have automatic access to U.S. citizenship because they were born on U.S. soil. Unlike residents of states or other territories, American Samoans are born as U.S. nationals, and if they want U.S. citizenship they must live in a U.S. state or another territory for at least three months and pay a $725 fee.

It’s an expedited process compared with non-U.S. nationals but still requires leaving their homeland, moving across the ocean and paying money even though they were born under the U.S. flag.

Neil Weare is an attorney from Guam who runs the nonprofit Equally American, which was created to advocate for equal treatment for U.S. territories. He represents the plaintiffs in that case and intends to appeal it to the Supreme Court.

“Here we are almost 125 years later and America still has colonies,” he said.

Alejandro Ortiz, senior staff attorney with the American Civil Liberties Union’s racial justice program, said the organization hasn’t yet received a response from the Biden administration.

Ortiz hopes the letter helps sway its position in the Fitisemanu case, noting that the administration has spoken out against racial injustice and yet is embracing the systemic racism of the Insular Cases.

“This is an opportunity to call out the Biden administration and expose it for what feels like hypocrisy,” he said.

Land Limitations

The reality is more complicated, says Rose Cuison-Villazor, interim dean of the law school at Rutgers University.

Cuison-Villazor grew up in the U.S. Commonwealth of the Northern Mariana Islands. Before the islands became a U.S. commonwealth in 1986, both American and commonwealth negotiators agreed that land ownership would be limited to people who were at least one-quarter Indigenous as defined by the law.

At the time, negotiators saw Native Hawaiians become homeless in their own homelands and some worried the same fate might await the Chamorro people in the Marianas.

In American Samoa, land ownership is limited to people who are at least one-half American Samoan and much of the land is communally owned by families.

Cuison-Villazor said that if the Biden administration disavows the Insular Cases and the Supreme Court overturns them, it’s possible that such land ownership limitations would be ruled unconstitutional.

That’s a real fear of the government of American Samoa, which testified at a congressional hearing last year against a resolution that condemned the Insular Cases.

“This arrangement preserves our traditional Samoan way of life, or faʻa Samoa, including communal land ownership, cultural traditions like prayer curfews, and that most of our islands’ lands should stay in the hands of persons with Samoan ancestry,” Lt. Gov. Talauega Eleasalo Vaʻalele Ale told Congress.

“Here we are almost 125 years later and America still has colonies.” — Guam attorney Neal Weare

Opinions about the issue vary among territory residents just like any politically charged question. One of Weare’s colleagues is American Samoan attorney Charles Ala’ilima who has written that the status quo treats his people unequally and has been fighting to change that. The Guam Legislature passed a resolution supporting the overturning of the Insular Cases last year.

But others remain concerned. Honolulu resident Gingerlei Parker worries about what making American Samoans like her automatically U.S. citizens would mean for her children and her family’s communal land.

She herself became a U.S. citizen, but says that’s a decision she made for herself and is not one she’d make for her community. During a phone interview last week, she said it was hard to explain what land and culture mean to her because they’re the basis of her identity.

“Those things are significantly valuable to me as an American Samoan,” she said.

Furthering Self-Determination

Line-Noue Kruse, author of the book “The Pacific Insular Case of American Sāmoa: Land Rights and Law in Unincorporated U.S. Territories,” thinks the fear of land loss is not unfounded.

“The fear is based in Oceanic history, American history and Hawaii history,” she said. “In this American perspective of equality there is no space for Native ownership. There is no space for culture … In every jurisdiction where citizenship has been forced amongst its Native populations, land dispossession follows.”

Weare disagrees that overturning Insular Cases would limit territories’ self-determination — in fact, it would enable it. He sees the Insular Cases as a precedent that is preventing residents of U.S. territories from achieving self-determination by locking them into a status quo that favors the federal government.

The Insular Cases create a “heads I win, tails you lose,” scenario that puts territories at the mercy of what Congress and the courts decide, without allowing the residents of such territories to vote.

Tuna boats in Pago Pago Harbor. Some American Samoans who live on the mainland say they should have automatic access to U.S. citizenship. American Samoans are born as U.S. nationals, and if they want U.S. citizenship they must live in U.S. states for at least three months and pay a fee. Nathan Eagle/Civil Beat/2019

Getting rid of that precedent would open the door to new possibilities for self-determination, he said. He compared its significance to overruling Plessy v. Ferguson, which was decided by the same court that ruled on the Insular Cases and upheld the “separate but equal” doctrine of racial segregation.

“You couldn’t have imagined the Civil Rights Act and the Voting Rights Act of the 1960s without first overruling Plessy,” Weare said.

Ortiz from the ACLU said it would be preferable to have a groundswell of support to overturn the Insular Cases from the residents of the territories themselves but said, “in the absence of that I don’t think the answer is no movement on these issues at all. There needs to be movement.”

Whether that’s being instigated by residents of the territories themselves or by the diaspora is secondary to the question of whether the territorial residents have the same rights as U.S. citizens in states, he said.

“The fact that the question has to be asked at all is problematic,” he said.

Line-Noue Kruse finds that perspective patronizing. Whether or not American Samoans become U.S. citizens, or change their land laws, should be based on a local plebiscite, not by a court ruling that treats all territories the same, she said.

Cuison-Villazor from Rutgers University thinks there still may be options for Pacific peoples if the Insular Cases are overturned and land laws or other cultural practices are challenged.

U.S. law includes a pathway for Indigenous peoples to be designated as Native political entities but, by definition, that extends only to people in the 48 contiguous states and Alaska.

Native Hawaiians who want this federal recognition have petitioned the Insular Department to make an exception for them, a lengthy process. Congress could potentially expand this definition of political indigeneity into the Pacific, eliminating the need for special requests.

Regardless, Cuison-Villazor said part of what makes the issue challenging is that equal protection in the U.S. is often understood through the lens of white subjugation of Black people.

“It’s more complex when you bring in questions of colonization,” she said. “The narrative of civil rights is not always as fitting as when people lost their nationhood.”

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