Unequal rights originating in insular cases are good --- they’re uniquely key to preserving Samoan land rights and cultures.

“Equality” does not mean much on its own, as it may embody any number of different theories of equality. In part because of its history of slavery and Jim Crow, the United States has come to embrace a universalist notion of equality that calls for largely identical “bundles of basic rights and duties” across all citizens.161 For the most part, the United States’ theory of equality, as embodied in its jurisprudence, rejects entrenched differentiation among groups of citizens — “group differentiated rights”—as a legitimate long-term democratic arrangement.162 Or does it? While this universalist model of liberal republics has prevailed as a paradigm since World War II and dominates American rhetoric,163 certain groups—territorial residents and Native Americans, namely—have always occupied a space apart.164 I argue that while the assimilationist/universalist model of “equality” may be fair to govern (non-Indian) citizens of the States, group-differentiated rights are justifiable in the context of territorial peoples.

The argument that territorial peoples must be allowed “unequal” treatment in order to be equal begins with several premises: (1) territorial cultures are endangered by the application of universalist rights regimes,165 and (2) many of the territories did not seek or consent to, in a significant way, American sovereignty and membership in the American political order.166

Both the value of local cultures and their vulnerability ring out from the opinions rejecting constitutional challenges to group-differentiated rights in the territories. This is clearest in the land restriction cases: “There can be no doubt that land in [NMI] is a scarce and precious resource,” native ownership of which plays a “vital role . . . in the preservation of NMI social and cultural stability.”167 The court devotes an entire page to the importance of land to the people of NMI,168 and the all-too-high risk of loss if ownership could be had on an equal basis.169 “[E]qualization of access would be a hollow victory if it led to the loss of their land [and] their cultural and social identity . . . . The Bill of Rights was not intended . . . to operate as a genocide pact for diverse native cultures.”170 These same fears underpin the concern of some American Samoans about a constitutional grant of citizenship, which they worry would trigger greater constitutional scrutiny of their land laws.171 Likewise, avoiding the “imposition” of jury trials on peoples with “cultures, traditions, and institutions different from our own” motivated the court in Atalig, placing NMI culture and its protection from unwanted legal norms at the center of its opinion.172

So it’s not just advocates and scholars contending for the value of protecting local cultures through group-differentiated rights; the courts of appeals themselves are pressing such arguments in upholding these rights, though it rumple the edges of the Constitution. If the fa’a Samoa—an entire way of life—is not to be extinguished, then restrictions on land alienation must prevail there. As the Canadian Supreme Court noted, “identical treatment may frequently produce serious inequality . . . .”173 What does it profit a person born in American Samoa or NMI that someone else—a mainlander American retiree—can be “equal” to him, that the retiree can buy a plot of land (or, more likely, every plot of land), if it comes at the cost of his culture and identity?174 For American Samoans and other territorial residents, to coexist meaningfully—to be equal, in a sense—in the American republican system requires a different set of rights and obligations for locals.