Thursday, June 21, 2007
Many law students in their first year property course learn in Buchanan v. Warley that states are prohibited from restricting the alienation of lands on the basis of race, color or national origin.
Two laws in the U.S. territories challenge this fundamental principle inherent in the right to own property. Specifically, in American Samoa and the Commonwealth of the Northern Mariana Islands (CNMI), ownership of land and the ability to lease land for more than 55 years are contingent on whether a person has the requisite amount of indigenous “blood.” The American Samoan Code prohibits the alienation of “any lands except freehold lands to any person who has less than one-half native blood.” (More than 90 percent of lands in American Samoa are communally owned and the rest are either freehold lands or individually owned). The CNMI Constitution provides that only those persons who are at least of “one-quarter Northern Marianas” descent may acquire property. (The CNMI has a private property regime.)
Are these laws constitutional? Many would be surprised to know that both laws have prevailed against equal protection challenges. As I discuss below and in a subsequent post, one of the rationales that the courts used to justify the constitutionality of these laws is what they saw as the role that indigenous land ownership played in preserving the indigenous cultures in those territories.
Rose Cuison Villazor
In this post, I will focus on Craddick v. the Territorial Registrar of American Samoa, which sustained the validity of that territory’s land alienation restriction law. I’ll discuss Wabol v. Villacrusis, 958 F.2d 1450 (9th Cir. 1990), which upheld the constitutionality of the CNMI law, in a subsequent post.
In Craddick, the High Court of American Samoa, which is the highest court in that territory, recognized that the “one-half native blood” land alienation restriction requirement created a classification based on race. The court applied strict scrutiny analysis and ultimately held that the territory had a compelling government interest in “preserving the lands of American Samoa for Samoans and in preserving the Fa’a Samoa, or Samoan culture.” The court noted that “the most valuable tangible thing that the Samoan people possess is land” and the law is necessary “to protect the lands, customs, culture, and traditional Samoan family organization of persons of Samoan ancestry.”
One might ask, “How does the restriction on the alienation of land protect the American Samoan way of life or culture?” According to the court, “[l]and to the American Samoan is life itself. He cherishes the land where his ancestors came hundreds of years ago, and where he and his children were born . . . Land is what he lives from, for it is only on the land that he can plant, nurse, and grow his plantations of coconuts, papayas, taro... and other food. Land is where he cooks his food. Land is where the bones of his beloved ancestors are buried.”
The limited space I have on this blog does not allow for a detailed analysis of Craddick, American Samoan culture, traditional land tenure system or the historical reasons that led to the restriction. (Here comes the shameless self-promotion). In “Exploring the Meaning of Blood Quantum Laws,” I examine the various issues of culture, property rights and citizenship that this case raises. One criticism that I provide is how the case relies on an outmoded concept of culture as static and monolithic. Surely, American Samoan culture and the ways in which American Samoans utilize their lands today differ remarkably from their way of life and use of those lands when it became U.S. territory in 1899. Overall, the court lacked the in-depth analysis of the connections among property, culture and restriction based on “blood-based” indigeneity that I think is necessary when examining a law involving a racial property restriction.
To date, no federal court has directly addressed the constitutionality of the American Samoan land alienation restriction law. The D.C. Circuit Court of Appeals, which has appellate jurisdiction over cases decided by the High Court of American Samoa, acknowledged that the restriction is race-based in Presiding Bishop v. Hodel, 30 F.2d 374, 385 (D.C. Cir. 1987) but opted not to rule on it.
Admittedly, American Samoa, like Native American nations, may be sui generis. Nevertheless, the Craddick case provides a unique insight into fundamental principles of equal protection in the right to own property and the relationship between culture and property.
Rose Cuison Villazor
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