The Feds Are Attacking a Program That Gives Indigenous People Land

The indigenous Chamorros have inhabited the island of Guam—at 210 square miles the largest in the Marianas—for thousands of years. In the 16th century, Spanish explorers made landfall and claimed the island for their king, and Guam remained in Spanish control until 1898, when the US won it as part of the spoils of the Spanish-American War. It remains a US territory, and those who live there are US citizens, though they can't vote for president.

As in many places, the authorities have made provisions for indigenous peoples who have suffered centuries of abuse: The Chamorro Land Trust Commission, enacted by the Guam Legislature in 1975, grants leases to "native Chamorros" for agricultural or residential purposes in one-acre plots for $1 per year. The commission also provides low-interest housing loans. The trust manages about 15 percent, or 20,000 acres, of the island's total land.

And now that small concession to the Chamorros is under assault from the Trump administration: On September 28, the Department of Justice filed a lawsuit against the government of Guam and the land trust. The suit alleges that the Chamorro Land Trust violates the Federal Free Housing Act, and according to a press release, asks that the legislation be declared invalid "to the extent that they require or permit any action that would be a discriminatory housing practice under the Fair Housing Act," and to lease land to non-Chamorros.

The suit cites a case where an African American man was evicted from his home after his Chamorro wife passed away, but it follows a complaint made by a Caucasian man; the right-wing Heritage Foundation subsequently compared the trust to the Jim Crow South. In other words, the DOJ is going after a program meant to allow indigenous people to live on their ancestral lands on the basis that it discriminates on the basis of race. (The DOJ declined to comment.)

"The whole point of litigation like [the Chamorro lawsuit] is to pave the way for non-indigenous people to assert control over indigenous resources," said Matthew L.M. Fletcher, the director of the Indigenous Law and Policy Center at Michigan State and a member of the Grand Traverse Band of Ottawa and Chippewa Indians. Fletcher also said that indigenous people such as the Chamorro should also have rights under the UN's Resolution on the Rights of Indigenous Peoples.

Many Chamorros see this as just one more act of colonialism in a history full of indignities and atrocities.

After World War II, many Chamorros were removed from their ancestral lands, a process that uprooted whole villages so the US military could expand its presence. "This negatively impacted Chamorros spiritually, emotionally, culturally, socially, and economically," said Craig Santos Perez, a native Chamorro who is an author and associate faculty member at the Center for Pacific Islands Studies and Indigenous Politics Program at the University of Hawai'i, Mānoa.

Although US Congress passed legislation in 1994 to return property back to the territory for public benefit, many Chamorros remain landless. The legislation that created the land trust was an act of the Guam Legislature rather than the US Congress, putting it on possibly shakier footing than the Native Hawaiian homestead program, a similar initiative created by Congress via the Hawaiian Homelands Act of 1921 thanks in large part to Hawaiian Prince and Congressman Jonah Kūhiō Kalaniana'ole.

"This case represents an overlooked tension in equal protection law," said Rose Cuison Villazor, an expert in Asian American and Pacific Island law at the University of California, Davis. "On the one hand, equal protection law prohibits race-based discrimination in property." The Fair Housing Act ensures equal access to property regardless of race, she noted.

"On the other hand, case law has recognized that land restrictions in the US territories may deviate from traditional equal protection principles," Villazor added. "For example, the Ninth Circuit Court of Appeals has upheld a land alienation restriction on the basis of Northern Marianas descent… In American Samoa, the territory's high court has upheld restrictions on land ownership based on American Samoan blood."

Villazor said that the issues that the Ninth Circuit would need to address in the Department of Justice suit include "determining whether to apply traditional equal protection law and the underlying reason for establishing the Chamorro Land Trust—was it done to discriminate on the basis of race, or some other reason such as to promote a political, non-discriminatory reason?"

Needless to say, the stakes of this suit are high for Chamorros. In Guam, where wages for most indigenous people are low and housing prices are rising, the land trust provides a rare opportunity for them to acquire property.

The government of Guam is committed to defending the trust.

"It's clear that they don't understand or don't care about the reason behind the creation of the Chamorro Land Trust's Commission," Guam governor Eddie Calvo told a Guamanian newspaper in September. "We must allow the native inhabitants of this land the opportunity to build a home and live on their native land—and I have no compunction about fighting this out in court." (The governor's office did not respond to my requests for comment.)

Chamorros are divided on next steps to secure their land rights. Some want Guam to become a commonwealth or state within the US, while others want full independence. Perez says he believes the US has no desire to raise Guam's status to a commonwealth like Puerto Rico, let alone statehood. "Guam's political status as an unincorporated territory gives the military its most 'freedom of action,' as opposed to other military bases that are in sovereign Asian countries, such as the Philippines or Japan," he told me. "Granting Guam independence or statehood would diminish this freedom."

On October 7, Guam Senator Michael F.Q. San Nicolas introduced a resolution urging Congress to declare the Chamorro people a Native American tribe and to create a tribal land base, a process known as "taking land into trust." If this move is successful, it would make the lawsuit moot, since American Indian tribes have the right to determine land ownership or leaseholds within their reservation lands.

Madeleine Bordallo, Guam's nonvoting delegate to the US House of Representatives, is concerned about the "unintended consequences" of such a move, according to her spokesperson Adam Carbullido, though she did plan to discuss it with San Nicolas. "Congresswoman Bordallo is working to identify legislative options that would enable the Chamorro Land Trust to continue to administer homelands on Guam to the benefit of the Chamorro people, and will be presenting these options to the Guam Legislature and the Governor of Guam to develop a clear, unified 'One Guam' way forward," he said.

Meanwhile, the suit continues, amid concerns that it will make life even harder for the Chamorros who want to remain on Guam rather than emigrating.

"If the lawsuit is successful, it will be even more difficult for Chamorros to be granted land through the trust," Perez told me. "Chamorros will continue to be alienated from the land, and more Chamorros will continue to migrate."