American Samoa: Can the House of the Brave help more lands be free?

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As President Joe Biden seeks to build a Cabinet that “looks like America,” one appointment stands out as particularly important: the appointment of Deb Haaland to head the Department of the Interior (DOI), making her the first Native American to serve as Cabinet Secretary. . In his new role, Haaland oversees the all-important Department of Indian Affairs, the federal policy center supporting Indigenous communities. While Haaland’s voice has been essential over the past year as America and its allies continue to wrestle with grotesque colonial pasts, she has only been able to do so much for her fellow Native Americans who are fighting for civil and political rights. Indeed, despite gradual progress, Native Americans remain one of the most disadvantaged groups in the United States, earning an income well below the national average and having even less representation in government. These age-old issues reflect the fundamental challenge of Native American peoples – the quest to reclaim tribal sovereignty. No matter how big the court case or how fierce the protest, Native Americans are still unable to exercise anything close to the cultural and territorial sovereignty they enjoyed before colonization.

Maybe American Samoa has the answer. American Samoa is a chain of islands with just over 50,000 Americans, known to have the highest per capita military participation rate of any US state or territory. But, unlike residents of other unincorporated U.S. territories like Puerto Rico, American Samoans are U.S. nationals, not U.S. citizens — something civil rights groups have disputed for years. While outsiders often decry this policy as unfair, many American Samoans view their status as an opportunity to preserve the islands’ culture and traditions. But due to its noncitizen status, American Samoa is the only inhabited US territory without clear federal judicial oversight. The government of the islands took advantage of the indifference of the United States by creating a “hybrid system of law… unique in the world today”. The system combines a Western legal framework with Indigenous legislation matai chief leadership system and, above all, communal land ownership. As a result, American Samoa has managed to preserve its pre-colonial culture better than any other American territory or tribe. Beyond the boundaries of the US Constitution, American Samoa is a neglected center of political experimentation for mainland Native Americans seeking to strengthen their tribal sovereignty.

American Samoa’s unique history with the United States is critical to its ability to protect fa’a Samoa — the Samoan way. After taking control of the territory in 1900, the US Navy exercised authority over American Samoa on behalf of the federal government until 1951, after which the DOI assumed responsibility in 1956. Partly due to US naval control and partly because of its 5,000 miles remote from the American mainland, foreigners have never settled in American Samoa unlike other American territories. Critically, American Samoa is the most homogeneous territory of indigenous peoples in the United States: approximately 90% of residents are Native Samoans. This ethnic homogeneity enabled American Samoan leaders to establish traditional political institutions in 1962 and 1967 by adopting a constitution without overwhelming United States recoil. Two important features emerge from this constitution: the matai leadership system and communal land ownership. Mataiwhich roughly translates to “title”, is a hierarchical system of social ranks that is woven into American Samoan law. Matai rulers oversee control of “commons land” – land that can only be owned, sold and developed within small communities, representing 96% of all property in American Samoa. In other words, non-Samoans are unable to purchase property under a western free market structure on the vast majority of the islands. Together, American Samoans have managed to retain a remarkable level of sovereignty over their land and political institutions despite their relationship with the United States.

How the matai and communal land ownership pass the rigor of the Supreme Court? The prohibition of most private land ownership by people whose blood is less than half Samoan seems inherently contrary to the 14th Amendment’s guarantee of equal protection. Indeed, this concern has become a prominent argument for American Samoans against granting US citizenship to island residents. If most American Samoans become US citizens, US courts may decide that the Equal Protection Clause applies to the territory’s laws and constitution. The government of American Samoa supported him in a brief regarding a 2012 Supreme Court case on the issue, writing that “imposing birthright citizenship would upset a political process that guarantees self-determination.” The fiery document goes so far as to assert that this decision “will undermine the very predicate of the fa’a Samoa.” While some residents still aspire to U.S. citizenship, many American Samoans on the ground agree with their government; Filipo Ilaoa, a retired Marine Corps sergeant major, argued that “essentially what comes down to freedom – the freedom to own communal land.” As one resident of Tutuila said, the preservation of fa’a samoa creates a place where “we all live in harmony and care for each other”. These American Samoans strongly reject any further protection by US law because “under the guise of ‘equality’ the judiciary would achieve what the US Navy could not: the conquest of American Samoa”.

“Beyond the bounds of the U.S. Constitution, American Samoa is a neglected center of political experimentation for mainland Native Americans seeking to strengthen their tribal sovereignty.”

What is tribal sovereignty and how can American Samoa inform better policy debates about it? For the US government, tribal sovereignty is an idea as old as government itself, rooted in Article I, Section 8 of the Constitution. Broadly speaking, the federal government understands tribal sovereignty as the right of recognized tribes to exercise limited authority over economic, political, and civil processes. But for Native Americans, tribal sovereignty isn’t something the U.S. government conjures up — it’s something they had for centuries before colonization and have since gradually taken back. Given the piecemeal nature of these legal efforts, different Indigenous groups across the United States have different interpretations of what tribal sovereignty means to them, from food to taxation to political institutions. Yet no indigenous group on the continent can fully achieve any of these goals without the independence granted to American Samoa.

American Samoa’s legal journey to preserve local culture and live without US citizenship holds important lessons for those seeking to expand tribal sovereignty on the continent. On the one hand, the ethnic and cultural homogeneity of American Samoa allows community leaders to assert their authority more strongly than other more assimilated or dispersed tribes. The fact that American Samoa is an isolated, self-contained community thousands of miles from the contiguous United States allows the territory to operate in a way that does not disrupt white communities, rich in wealth and political capital. Continental tribal sovereignty movements must be aware that expanded authority may not reach the vast majority of Indigenous peoples who are incorporated into American cities and suburbs. Thus, basic demographic constraints should temper expectations of these movements. Nevertheless, the success of American Samoa demonstrates that even limited opportunities to revive pre-colonial life can be worthwhile.

The experience of American Samoa signals to Indigenous groups on the continent that, despite its costs, keeping the US government at arm’s length allows tribes the legal space they need to fully reestablish some sense of sovereignty. As federal and state governments grapple with economic, environmental, and energy needs, Native Americans need new legislation and legal standards to keep tribal lands out of broader political interventions. Since vague federal guidelines have allowed states to limit tribal sovereignty, new federal legislation should give broad powers to individual tribes under DOI oversight and without state interference. Additionally, American Samoa’s concerns about US citizenship indicate that consistent application of the Equal Protection Clause may in fact fetter liberty. As such, lawmakers and Indigenous leaders should explore a constitutional amendment to create a legal process for members of designated tribes to opt out of U.S. citizenship, if they so choose. While relinquishing U.S. citizenship can have significant downsides, the success of American Samoa indicates that Indigenous and non-Indigenous policymakers must begin to engage in candid cost-benefit analyzes of how relinquishing some federal protections might allow for a partial restoration of pre-colonial standards.

Finally, it is essential to emphasize that greater legal separation between the US government and Native Americans would not mean that these Americans would cease to serve or care for their country. Despite the remoteness of the territory and the cultural differences, American Samoans are still American. American Samoans are willing to fight and die for this nation at a higher rate than Rhode Islanders, Texans, or Californians, though they are not legally and fully part of it. The differences between the islands and the rest of the union make American Samoa more American, not less. After all, there is nothing more American than the courageous pursuit to free oneself from the clutches of colonization.

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