The application of constitutional law to the permanently inhabited unincorporated United States territories carries tensions between measures meant to safeguard indigenous populations and constitutional rights for nonindigenous individuals. These tensions are salient in Guam and the Commonwealth of the Northern Mariana Islands (CNMI). The Ninth Circuit has at various times either defended or curtailed the legal protections that these territories’ indigenous populations receive. Recently, in Davis v. Guam, the Ninth Circuit held that a Guam statute restricting the right to vote in a plebiscite to “Native Inhabitants of Guam” violated the Fifteenth Amendment by using ancestry as a proxy for race. In its reasoning, the court claimed to leave unresolved whether, in nonvoting contexts, “Native Inhabitants of Guam” constitutes a political classification rather than a racial one. Political status would not only insulate policies that preference Guam’s indigenous population from the strict scrutiny “applied to race-based affirmative action laws,” but could also grant Guam wider self-governance over its indigenous peoples by using ancestry-based classifications as policy tools. However, the court’s logic itself precludes that possibility by implying that political status is inappropriate in Guam’s context.
After the Spanish-American War, Spain ceded Guam to the United States in the 1898 Treaty of Paris, which declared that the “civil rights and political status” of Guam’s inhabitants “shall be determined by the Congress.” In the 1950 Organic Act of Guam, Congress designated Guam as an unincorporated territory. Since then, Guam’s political status continues to be subject to federal oversight. In 1997, the Guam legislature passed a plebiscite law that established a commission to conduct a “political status plebiscite” asking voters which “political status option[]” they preferred for fulfilling their “right to self-determination.”
Guam’s indigenous population is commonly referred to as the Chamorro. Participation in the plebiscite was limited to “Chamorro People,” defined as “[a]ll inhabitants of Guam in 1898 and their descendants who have taken no affirmative steps to preserve or acquire foreign nationality.” In 2000, Guam amended the plebiscite law, replacing all references to “Chamorro” with “Native Inhabitants of Guam.” The law also stated that it intended to allow Guam’s native inhabitants to exercise the right to self-determination and that it carried no race-based intent. The law was amended again in 2010 to grant automatic registration for the plebiscite to “individuals who received or had been preapproved for a Chamorro Land Trust Commission (CLTC) property lease.” Such a lease was only available to “Native Chamorros.”
Arnold Davis, a “non-Chamorro resident of Guam,” intended to register as a voter for the political status plebiscite. He was denied from registering because he did not qualify as a “Native Inhabitant of Guam.” In 2011, he sued Guam, claiming that the 2000 plebiscite law’s voting restriction violated the Fourteenth and Fifteenth Amendments, the Voting Rights Act of 1965, and the Organic Act of Guam.
The district court granted Davis’s motion for summary judgment on Fifteenth and Fourteenth Amendment grounds and permanently enjoined Guam from conducting a plebiscite that restricted participation to native inhabitants. The district court held that the plebiscite qualified as an election subject to the Fifteenth Amendment because it would decide a public issue of interest to every Guam resident: Guam’s future political relationship with the United States. The district court also ruled that Guam’s voting restriction used ancestry to create racial classifications because the law “excludes nearly all persons whose ancestors are not of a particular race.” With further evidence from the automatic registration of “Native Chamorros” with CLTC leases, the court found that the legislature sought to treat the Chamorros as “a distinct people.”
On appeal, the Ninth Circuit affirmed the district court’s ruling solely on Fifteenth Amendment grounds. Writing for a unanimous panel, Judge Berzon agreed with the district court that the plebiscite addressed a public issue for Fifteenth Amendment purposes. Judge Berzon held that courts are to “err on the side of inclusiveness” for the Fifteenth Amendment. Because the plebiscite would guide Guam to take a course of action on its sovereignty, it was a “matter of ‘governmental polic[y]’” and “public issue.”
Judge Berzon then found that the plebiscite law used ancestry as a proxy for race in violation of the Fifteenth Amendment. In her analysis, she distinguished instances where ancestry classifications were unconstitutional proxies for race from instances where such classifications were valid. For the former, she relied on Rice v. Cayetano. In Rice, the Supreme Court ruled on the constitutionality of a Hawaii law that restricted eligibility to vote for trustees of the Office of Hawaiian Affairs to “Hawaiians,” described as descendants of Hawaii’s native inhabitants residing in the Hawaiian Islands in 1778 and thereafter. The Court invalidated the law on Fifteenth Amendment grounds. Rice’s analysis of the history of the definition of “Hawaiians” and the legislative history of the voting law determined that the classification of “Native Hawaiians” incorporated a “racial definition . . . for a racial purpose.” Judge Berzon conducted the same analysis with respect to Guam, finding that “Native Inhabitants of Guam” was a proxy for “Chamorro,” which the law sought to set aside as a distinct people in a racial classification.
For constitutionally permissible ancestry classifications, Judge Berzon cited Morton v. Mancari. There, the Supreme Court assessed whether a Bureau of Indian Affairs employment preference for “Indians” constituted racial discrimination. The Court upheld the federal classification of “Indians” as “political rather than racial in nature” and exempted policies that preference members of tribes from racial discrimination claims. The Court did so while relying on the “history and purposes of the preference and the unique legal relationship between the Federal Government and tribal Indians.” Judge Berzon then distinguished the Guamanian voting context from that in Mancari. She noted that the Supreme Court and the Ninth Circuit had previously declined to apply Mancari in the Fifteenth Amendment context to non-Indian indigenous groups in Hawaii and the CNMI, respectively. However, following the narrow precedents from the Hawaii and CNMI voting cases, Judge Berzon wrote that the Ninth Circuit “reserve[d] judgment on whether the Mancari exception may apply to the ‘Native Inhabitants of Guam’ classification outside the Fifteenth Amendment context.”
In Davis, the court departed from its own precedent and the Supreme Court’s jurisprudential approach by expansively reading the “special relationship” that animated the Court’s ruling in Mancari. By leaving open the possibility that indigenous Guamanians could have a special relationship to the United States in nonvoting contexts, the court appears to have allowed Guamanians the opportunity to design policies that serve their unique cultural rights and interests. However, such a venture may prove troublesome for the court to provide given its lack of engagement with Mancari’s implicit “special relationship” doctrine in a non–American Indian context, the distinct character of federal Indian law vis-à-vis the U.S. territories, and Guam’s own unique legal status. In sum, the Ninth Circuit’s decision arguably left little doctrinal room for Guam’s indigenous peoples within the Mancari framework.
The Davis court relied on Mancari’s conception of a “special relationship” between the U.S. government and American Indian tribes as the basis for a political classification. Judge Berzon noted that despite Mancari’s being “premised on the recognized quasi-sovereign tribal status of Indians,” Congress and the Supreme Court had never formally made tribal membership the basis of special treatment. The court cited to previous assertions that U.S. colonial history, in which tribes were forcibly displaced from their lands, was the basis of special treatment under federal law. By doing so, the Davis court rooted the Mancari political classification not merely in federal tribal recognition, but also in the “historical and legal context” of U.S. conquest that requires policies “explicitly designed to help only Indians.”
In doing so, Davis departed from the Ninth Circuit’s previous understanding of Mancari. The court has repeatedly limited the application of Mancari only to American Indian tribes or, at least, to “quasi-sovereign group[s] distinct from the whole citizenry of [a] state.” Steeping Mancari in the special relationship doctrine makes the inclusion of the territories’ indigenous populations more feasible. Notably, a formulation of Mancari that requires federal tribal recognition would be unhelpful to Guam’s self-determination ambitions because the indigenous populations of the territories, along with Native Hawaiians, cannot legally seek federal tribal status. Thus, Davis’s dictum appears to create a pathway for the territories’ indigenous groups to attain Mancari political classifications if the case can be made that they, too, have a special relationship to the United States despite their lack of tribal status.
The Davis court’s departure could prove to be determinative in a future nonvoting case. The District Court of Guam tried recasting Mancari in United States v. Government of Guam, which partly assessed whether Guam’s administration of the CLTC for Chamorros constituted racial discrimination in violation of the Fair Housing Act. In its denial of the federal government’s partial motion for judgment on the pleadings, the court held that the Fifteenth Amendment cases did not necessarily determine whether the term “native Chamorro” was a racial or political classification for broader preferential purposes. The court noted that, even without federally recognized tribal status, it remains a question of fact whether Mancari’s “special relationship doctrine” could stand for granting a political classification to “native Chamorros” based on federal policy considerations. Land-related preferential policies are particularly relevant because the Chamorro Land Trust Act, which animates Guam’s administration of the CLTC, is also intimately related to the history of U.S. seizure of land from native inhabitants. The district court’s framework for the Mancari question may therefore have considerable impact. If this case proceeds to the Ninth Circuit, it would force the court to directly confront the issue of whether Chamorros are entitled to political status outside of the voting context.
The Davis court’s acknowledgement of the special relationship rationale for the political classification may not result in the desired outcomes for native inhabitants of Guam for three reasons. First, there are no criteria for what constitutes a special relationship between a group and the United States outside of the “guardian-ward” relationship from the American Indian context. For nearly two decades, jurists have pointed to legislative history for the suggestion that Native Hawaiians have a special relationship with the United States. However, this position has yet to find significant traction in the courts. Moreover, this approach has largely attempted to cast Native Hawaiians as being “constitutionally analogous” to American Indian tribes based on history. The Rice court declined to affirm this approach because it involved “some beginning premises not yet established in . . . case law.”
Second, the distinctiveness of Federal Indian Law also spurs the question of whether it is advisable to bring groups like the Chamorro fully under its purview. Scholars on both Hawaii and the territories have problematized attempts to cast legal similarities to American Indian tribes as possibly being counterproductive to self-determination efforts. Notably, the Chamorro self-determination movement has yet to be validated legally, even by the Davis court. Based on the court’s previous denial of Native Hawaiians’ eligibility for federal tribal recognition, the Ninth Circuit may not be willing to act on matters that may incorporate non–American Indian groups into the tribal framework without a federal directive.
Lastly, Guam’s political status further complicates the reconciliation of the special relationship rationale with Guam’s indigenous population. Guam is an unincorporated territory and is thus not on the typical path to statehood. Guam also does not have commonwealth status. This prevents Guam from exercising self-government comparable to the CNMI. It is also not guaranteed that Guam and the CNMI would be equated on Mancari questions in nonvoting contexts. For example, Wabol v. Villacrusis, a Ninth Circuit case that upheld CNMI’s restricting the right to own land or hold long-term leases to people of Northern Marianas descent, is noted for favoring a territory’s indigenous population over the application of the equal protection doctrine. However, even the logic in Wabol may not be applicable to Guam since the opinion’s reasoning was so deeply rooted in the historical context of the covenant establishing CNMI as a Commonwealth. Guam faces a more open question of whether the court could interpret the island’s history as animating rights meriting protection.
While the court has limited available pathways given its restrictive conception of Mancari in the past, there are still creative alternatives to the precedent. Many aspects of Guam’s history and legal status suggest an incompatibility with the analytical frameworks used for American Indians, Native Hawaiians, and even Northern Mariana Islanders. Accordingly, despite the Davis court’s optimistic view, it could elect to craft for Guam what the legal context calls for: a distinct framework for the island territory that is unshackled from those of other groups and that takes stock of its history, the Treaty of Peace, and perhaps the movements for self-determination and commonwealth status.
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