No Right to Own in the Northern Marianas

In my previous post, I explained that ownership of lands in American Samoa is restricted to Samoans only and that this law has survived an equal protection challenge.  The Commonwealth of the Northern Mariana Islands (CNMI) also has a similar land alienation restriction.  (For those who have not heard of the CNMI, it is a commonwealth like Puerto Rico that is subject to the sovereignty of the U.S.)  The CNMI Constitution requires a person to be of “one-fourth” Northern Marianas descent in order to own property or lease land for more than 55 years.   

Here are additional interesting information about this law:

- A person who is not of Northern Marianas descent does not have the right to inherit the property of his/her spouse who is of Northern Marianas descent unless the spouse dies without issue or with issue who is not eligible to own land in the first place.   

- A person who is not of Northern Marianas descent by “blood” may be considered as such if she was adopted by a family of Northern Marianas descent before she reached the age of 18.

- A corporation is considered a person of Northern Marianas descent for purposes of the statute if all of its directors are persons of Northern Marianas descent.

- In the event of a foreclosure of a mortgage, the transfer of the mortgage to a bank is not a violation of the law provided that the mortgagee is a full service bank and does not hold long term interest in the property for more than ten years.

Similar to the American Samoan law, the constitutionality of the CNMI law has been challenged on equal protection grounds and upheld. 

Rose Cuison Villazor

In analyzing the validity of what it considered to be a race-based land ownership law, the Ninth Circuit in Wabol v. Villacrusis, 958 F.2d 1450, 1459 (9th Cir.), cert. denied, 506 U.S. 1027 (1992) did not apply strict scrutiny analysis but instead relied on the Insular Cases doctrine.  Federal courts have been applying this test since the early 20th century to determine whether the Constitution “follows the flag” in the territories.  Under this test, only those rights deemed fundamental are applicable in the territories. 

Ultimately, the Ninth Circuit held that the right to have long-term interests in land ownership was not a fundamental right in the CNMI.  It held that interposing the constitutional right of equal protection in land ownership would be “impractical and anomalous” (part of the Insular Cases test).  “Equalization of access [to property] would be a hollow victory if it led to the loss of their land, their cultural and social identity[.]”

Wabol, like the Craddick case in American Samoa, is a complex opinion.  (I note here that Wabol also discusses issues of sovereignty and U.S. territorial relations that you may find intriguing as well.).  On one hand, it may be lauded for its goal of protecting indigenous peoples’ property rights and culture.  When placed in the context of colonialism, for example, the land alienation law facilitates the indigenous peoples’ right to exercise their right of self-determination, which includes the ability to control their lands, cultural and social development.  On the other hand, by not applying equal protection analysis, the court disregards Buchanan v. Warley and the fundamental principle of non-discrimination in ownership of property.  In so doing, it elides the history of the pernicious use of property laws to exclude people of color from the right to own property.   

Rose Cuison Villazor