Wednesday, July 12, 2006

Laughlin on Cultural Preservation

Stanley K. Laughlin (Ohio State Law School) has posted Cultural Preservation in Pacific Islands: Still a Good Idea - and Constitutional on SSRN.  Here's the abstract:

This article deals with certain legal and policy issues in the non-state insular areas of the United States (American Samoa, Guam, Northern Mariana Islands, Puerto Rico and the United States Virgin Islands), and less directly with islands in “free association” with the United States (Federated States of Micronesia, Marshall Islands, Palau.)

Many, perhaps most, insular areas of the world, due in large part to geographic separation, maintained their traditional cultures well into the 20th Century. With the onslaught of modern communications and transportation, preserving those cultures or even parts of them, now requires conscious effort. The author agrees that cultural preservation is a worthwhile objective, but notes that not everyone does; for example, those who believe that cultural preservation laws (e.g., laws restricting alienation of land) interfere with the “invisible hand” of the market and retard economic progress. The article notes that in U.S. areas there is another potential barrier to cultural preservation, the United States Constitution. Law restricting ownership of land to indigenous people, for example, have been challenged as alleged violations of the equal protection principle. The author argues that well-designed cultural preservation laws, including laws prohibiting or regulating sale of land to outsiders, should pass muster on both legal and policy grounds.

The author examines the unique cultures of some of these islands and notes that they have many qualities worth emulating. He also challenges the argument that cultural preservation retards economic progress. On the law side, he examines the historical development of doctrines pertaining the application of the U.S. constitution in non-state areas.

The article then focuses on the important Ninth Circuit case of Wabol v. Villacrucis. That case, quoting from an earlier article by this author, fashioned a rule that allows for the application of important constitutional protections in territories, but also permits exceptions when strict application might jeopardize the indigenous culture. The author argues that Wabol was correctly decided, and should remain the controlling precedent in this area of law (despite some current criticism of the case).

Ben Barros

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