Blood quantum land laws and the race versus political identity dilemma

California Law Review

Volumn 96, Issue 3, 2008, Pages 801-837

  Villazor, Rose Cuison ^a  

^a Southern Methodist University

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EID: 47849125861     PISSN: 00081221     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (353)

1. IAN F. HANEY LÓPEZ, WHITE BY LAW: THE LEGAL CONSTRUCTION OF RACE (1996);
2. Neil Gotanda, A Critique of "Our Constitution is Color-Blind", 44 STAN. L. REV. 1 (1991);
3. Ariela J. Gross, Litigating Whiteness, 108 YALE L.J. 108 (1998);
4. Cheryl I. Harris, Whiteness as Property, 106 HARV. L. REV. 1709 (1993). For recent scholarship that provide nuanced discussion of the legal and social construction of blood as a marker for race
5. see Kevin Noble Maillard, The Pocahontas Exception: The Exemption of Native American Ancestry From Racial Purity Law, 12 MICH. J. RACE & L. 351, 351 (2007) (examining the state of Virginia's view of American Indian ancestry as not a "threat to White racial purity");
6. S. Alan Ray, A Race or a Nation? Cherokee National Identity and the Status of Freedmen's Descendants, 12 MICH. J. RACE & L. 387 (2007) (analyzing Cherokee Nation's implementation of an "Indian blood" citizenship requirement for its members and its effect on American Indian members with African ancestry);
7. Daniel J. Sharfstein, Crossing the Color Line: Racial Migration and the One-Drop Rule, 1600-1860, 91 MINN. L. REV. 592, 594-97 (2007) (explaining that the one-drop rule did not "make all mixed-race people black" and "pushed many mixed-race people into whiteness").
8. See Harris, supra note 1, at 1738 n.137 ('"Hypodescent' is the term used by anthropologist Marvin Harris to describe the American system of racial classification in which the subordinate classification is assigned to the offspring if there is one 'superordinate' and one 'subordinate' parent. Under this system, the child of a Black parent and a white parent is Black.")
9. (citing MARVIN HARRIS, PATTERNS OF RACE IN THE AMERICAS 37, 56 (1964));
10. Christine B. Hickman, The Devil and the One Drop Rule, 95 MICH. L. REV. 1161, 1167 (1997).
11. See, e.g., Plessy v. Ferguson, 163 U.S. 537 (1896) (noting that Homer Plessy, who was phenotypically white, was deemed a Black person under Louisiana's segregation laws because he was genotypically seven-eighths white and one-eighth Black).
12. In re Alverto, 198 F. 688, 690 (E.D. Pa. 1912) (stating that petitioner was "ethnologically speaking, one-fourth of the white or Caucasian race and three-fourths of the brown or Malay race" and consequently, ineligible for naturalization);
13. In re Knight, 171 F. 299, 300 (E.D.N.Y. 1909) (holding that petitioner's "Mongolian blood" excluded him from classification as a white person and thus eligible for U.S. citizenship);
14. In re Camille, 6 F. 256 (D. Or. 1880) (holding that a person of half white and half Indian blood is not a "white person" for purposes of immigration naturalization).
15. See also HANEY LÓPEZ, supra note 1, at 203-08 (providing a chart that includes cases in which a person's blood functioned to ascribe non-whiteness to a person).
16. See Rice v. Cayetano, 528 U.S. 495 (2000);
17. In re Santos, 110 Cal. Rptr. 2d 1, 40 (Cal. Ct. App. 2001) (stating that "[w]hether we characterize this genetic association as racial, ethnic, or ancestry, a determination based on 'blood,' on its face invokes strict scrutiny").
18. 417 U.S. 535 (1974).
19. I use the term "American Indian" tribes when referring to the first peoples of the North American continent unless I am referring to specific Indian tribes. The term "Native American," as Robert Porter wrote, "suggests acceptance of an unsavory assimilationist connotation." Robert B. Porter, The Meaning of Indigenous State Sovereignty, 34 ARIZ. ST. L.J. 75, 75 n.1 (2002).
20. Mancari, 417 U.S. at 553.
21. 528 U.S. 495.
22. Id. at 517.
23. Id. at 520.
24. Id.
25. Chris K. Iijima, Race Over Rice: Binary Analytical Boxes and a Twenty-First Century Endorsement of Nineteenth Century Imperialism in Rice v. Cayetano, 53 RUTGERS L. REV. 91, 92 (2000) (explaining that Rice used a binary framework that examined whether Native Hawaiians were a political or racial group).
26. In this Essay, I use indigeneity and indigenous interchangeably to generally refer to indigenous, aboriginal, First Peoples and/or native groups. I do not adopt a particular definition, however, and I recognize that many indigenous groups have opposed the prescription of an exact definition. See RONALD NIEZEN, THE ORIGINS OF INDIGENISM 18 (2003) (explaining that indigenous-rights groups believe that the enactment of a legal definition of the word "indigenous" "would impose standards or conditions for participation in human rights processes that would be prejudicial to their interests"). James Anaya, a prominent scholar on indigenous rights, has described indigenous peoples as those "living descendants of preinvasion inhabitants of lands now dominated by others."
27. S. JAMES ANAYA, INDIGENOUS PEOPLES IN INTERNATIONAL LAW 3 (1996). The World Council of Indigenous Peoples (WCIP) has advocated that "[t]he question of 'who is indigenous?' is best answered by indigenous communities themselves."
28. Jeff J. Corntassel, Who Is Indigenous? 'Peoplehood' and Ethnonationalist Approaches to Rearticulating Indigenous Identity, 9 NATIONALISM & ETHNIC POL. 75 (2003) (explaining that the WCIP passed a resolution stating that indigenous peoples should have the right to self-identification). The concept of self-identification, however, has been critiqued as too broad and as having the potential to "lead other ethnic groups to position themselves as 'indigenous' solely to obtain expanded international legal status."
29. Id. at 76. States in which indigenous peoples reside have sought for a clear definition of indigeneity.
30. See id. The problem associated with this proposition is that it runs the risk of being so restrictive as to exclude legitimate indigenous groups from gaining recognition.
31. See id.
32. A notable exception is the scholarly work of the late Professor Chris Iijima that critiqued Rice v. Cayetano and the Supreme Court's binary analysis.
33. See Iijima, supra note 13, at 96. I build on Professor Iijima's work in this Essay by examining broader implications of the binary framework on other indigenous peoples such as those in the U.S. territories.
34. JON M. VAN DYKE, WHO OWNS THE CROWN LANDS OF HAWAI'I? 274 (2007) [hereinafter VAN DYKE, CROWN LANDS] (stating that the Supreme Court frustrated the "efforts of Native Hawaiians to recover their lost lands, resources and governmental authority");
35. Gavin Clarkson, Not Because They Are Brown but Because of Ea: Why the Good Guys Lost in Rice v. Cayetano and Why They Didn 't Have to Lose, 7 MICH. J. RACE & L. 317, 318 (2002) (stating that "Native Hawaiians were instead victims of a constitutionally faulty remedial infrastructure that was based on their race rather than their inherent sovereignty");
36. Sharon K. Horn & Eric K. Yamamoto, Collective Memory, History, and Social Justice, 47 UCLA L. REV. 1747, 1776 (2000) (critiquing the appropriation of civil rights rhetoric in modern "reverse discrimination" cases);
37. Iijima, supra note 13, at 111-23, 123 (contending that the Supreme Court's use of racial equality norms invalidated the Native Hawaiian-only law and that the "question should be whether they have been specifically harmed as a people by the loss of their nationhood");
38. Leti Volpp, Rethinking Asian American Jurisprudence, 10 ASIAN L.J. 51, 54 (2003) (commenting that there was no space within the Supreme Court's notion of civil rights for the question of Native Hawaiian sovereignty to be addressed).
39. Since the Supreme Court decided Rice v. Cayetano, several lawsuits have been filed to challenge the legitimacy of other blood quantum policies in Hawaii.
40. See Arakaki v. Lingle, 477 F.3d 1048 (9th Cir. 2007) (arguing against state programs that limit participation to Native Hawaiians);
41. Doe v. Kamehameha Sch., 470 F.3d 827 (9th Cir. 2006), cert, dismissed, 127 S. Ct. 2160 (2007) (challenging a private school's preferential policy towards students of Native Hawaiian ancestry);
42. Kahawaiolaa v. Norton, 386 F.3d 1271 (9th Cir. 2004) (seeking to invalidate the exclusion of Native Hawaiians from the federal acknowledgment process for acquiring American Indian tribal status);
43. Carroll v. Nakatani, 342 F.3d 934 (9th Cir. 2003) (challenging constitutionality of state programs restricted for Native Hawaiians);
44. Arakaki v. Hawaii, 314 F.3d 1091, 1097 (9th Cir. 2002) (arguing against a constitutional requirement that limited the ability to serve on the board of the Office of Hawaiian Affairs to those of Native Hawaiian ancestry).
45. L. Scott Gould, Mixing Bodies and Beliefs: The Predicament of Tribes, 101 COLUM. L. REV. 702, 731-748 (2001);
46. Frank Shockey, "Invidious" American Indian Tribal Sovereignty: Morton v. Mancari contra Adarand Constructors, Inc. v. Pena, Rice v. Cayetano and Other Recent Cases, 25 AM. INDIAN L. REV. 275, 313 (2002);
47. Paul Spruhan, Indian as Race / Indian as Political Status: Implementation of the Half-Blood Requirement Under the Indian Reorganization Act, 1934-1945, 8 RUTGERS RACE & L. REV. 27 (2006) [hereinafter Spruhan, Indian as Race] (examining the continued validity of a category in the Indian Reorganization Act that privileges those persons with one-half or more Indian blood).
48. There are also laws that use blood quantum distinctions in Alaska. See43 U.S.C. §§ 1601-1607 (2000 & Supp, 2007) (establishing the Alaska Native Claims Settlement Act (ANCA), which conveyed 44 million acres of land to twelve newly created corporations, the stocks of which were issued only to Native Alaskans if they fell in the category of a citizen of the United States "who is a person of one-fourth degree or more Alaska Indian . . . Eskimo, or Aleut blood"). Yet, because Native Alaskans are considered American Indian tribes, the holding in Riceis not generally thought to implicate its validity. It should be noted, however, that there are some blood quantum laws that privilege American Indian tribes that could be vulnerable under Rice.
49. See Spruhan, Indian as Race, supra note 18, at 27 (examining the Indian Reorganization Act's "half-blood" requirement).
50. See Hawaiian Homes Commission Act, 1920 (HHCA), Act of July 9, 1921, Pub. L. No. 67-34, ch. 42, § 208, 42 Stat. 108, 111 (1921);
51. see also Part III.A infra (discussing the historical background on the enactment of the HHCA).
52. HHCA, § 201(a)(7).
53. Rice v. Cayetano, 528 U.S. 495, 516 (2000) (stating that the definition of Native Hawaiian made clear that "descendants . . . of [the] aboriginal peoples" means "the descendants . . . of the races").
54. See AM. SAMOA CODE ANN. § 37.0204(b) (2004), available at http://www.asbar.org/Newcode/Title%2037. htm (prohibiting the alienation of lands to persons with "less than one-half Native blood");
55. see also REV. CONST. AM. SAMOA art. I § 3, available at http://www.asbar.org/asconst.htm (stating that "[i]t shall be the policy of the Government of American Samoa to protect persons of Samoan ancestry against alienation of their lands and the destruction of the Samoan way of life and language, contrary to their best interests").
56. See CNMI CONST, art. XII, § 4, available at http://cnmilaw.org/constitution_article12.htm (limiting ownership of land to persons with "one-quarter Northern Marianas Chamorro or Northern Marianas Carolinian blood," the indigenous peoples of the CNMI);
57. see also id. at § 1 ("[T]he acquisition of permanent and long-term interests in real property within the Commonwealth shall be restricted to persons of Northern Marianas descent").
58. See Matthew L.M. Fletcher, Politics, History, and Semantics: The Federal Recognition of Indian Tribes, 82 N.D. L. REV. 487, 491 (2006) ("Currently, 562 Indian tribes and Alaskan Native nations enjoy recognition [by the federal government].").
59. See also RENEE ANN CRAMER, CASH, COLOR, AND COLONIALISM: THE POLITICS OF TRIBAL ACKNOWLEDGMENT (2005) (explaining the process of obtaining federal government recognition of Indian tribes).
60. See Bethany Berger, "Power of This Unfortunate Race": Race, Politics and Indian Law in United States v. Rogers, 45 WM. & MARY L. REV. 1957, 2032 (2004);
61. Paul Spruhan, A Legal History of Blood Quantum in Federal Indian Law to 1935, 51 S.D. L. REV. 1, 23-44 (2006) [hereinafter Spruhan, Legal History].
62. The loss of American Indian tribal sovereignty and their property rights resulted from Johnson v. M'Intosh, 21 U.S. 543 (1823), wherein the Supreme Court held that American Indian tribes did not have the authority to sell their own lands because they lost their right to sovereignty and, relatedly, property rights when what is now the United States was "discovered" by Europeans.
63. See Gould, supra note 18, at 720 n.124 (citing a source that estimated that "between 1887 and 1934, Indian lands declined from 138 million acres to 52 million acres").
64. In 1887, Congress enacted the Dawes Severalty Act, also known as the Great Allotment Act, which was designed to break up Indian reservations into plots of land and allot them to individual American Indians. See Dawes Act, ch. 119, 24 Stat. 388 (1887) (encouraging Indians to forego hunting and use the lands for agricultural and grazing purposes);
65. Margo S. Brownell, Who Is An Indian? Searching for an Answer to the Question at the Core of Federal Indian Law, 34 U. MICH. J.L. REFORM 275, 279 (2001) (explaining that the Dawes Severalty Act led to the first use of blood quantum as a "determinant of when an Indian would be allowed to alienate an allotment of land");
66. Gould, supra note 18, at 719 (noting that the federal government introduced the concept of race vis-a-vis blood quantum as a membership criterion through the Dawes Severalty Act, which divided up American Indian lands and allotted these lands to individual American Indians who met the appropriate blood quantum);
67. Spruhan, Legal History, supra note 26, at 34-36 (discussing various statutes that relied on blood quantum to determine allotment eligibility).
68. Note that some American Indians with only one-fourth American Indian blood or who were full-blooded American Indians but did not belong to particular tribe were denied property as well. See Gould, supra note 18, at 720.
69. See id. The result of the Dawes Severalty Act was the tremendous loss of American Indian lands, an estimated 86 million acres. These restrictions were part of a larger federal policy at the time of assimilating American Indians into "American" society.
70. See DAVID H. GETCHES ET AL., CASES AND MATERIALS ON FEDERAL INDIAN LAW 111 (5th ed. 2005) (discussing the Era of Allotments and Assimilation).
71. See Treaty with the Chippewa of the Mississippi, 16 Stat. 719, art. 7 (1867) (providing that American Indian tribal lands "shall not be alienated except with the approval of the Secretary of the Interior").
72. See Act of March 1, 1907, ch. 2285, 34 Stat. 1015, 1034.
73. See Act of Apr. 26, 1906, ch. 1876, 34 Stat. 137.
74. See, e.g., Loving v. Virginia, 388 U.S. 1 (1967) (invalidating anti-miscegenation laws); Brown v. Bd. of Educ., 347 U.S. 483 (1954) (invalidating segregation in public schools).
75. Civil Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 241;
76. see also Fair Housing Act of 1968, 42 U.S.C. §§ 3601-3631 (2000).
77. 25 U.S.C. § 450a(a) (2000).
78. See Kevin K. Washburn, Tribal Self-Determination at the Crossroads, 38 CONN. L. REV. 777, 780 (2006) (noting that the first piece of legislation implementing the federal government's new policy of self-determination was the 1975 Indian Self-Determination Act and Education Assistance Act).
79. 25 U.S.C. § 450a(b).
80. See Carole Goldberg, American Indians and " Preferential" Treatment, 49 UCLA L. REV. 943, 950-51 (2002) (explaining the discursive move of using "equality rhetoric" against Indian law to overturn Morton v. Mancari).
81. 417 U.S. 535, 554 (1974).
82. Id. at 553 n.24. The policy was promulgated as part of an overall shift in federal American Indian policy that occurred in the 1930s. Congress enacted the Indian Reorganization Act of 1934, 25 U.S.C. § 461 (2000), which had as its purpose the need to craft measures "whereby Indian tribes would be able to assume a greater degree of self-government." Mancari, 417 U.S. at 542. One such measure included increasing "the participation of tribal Indians in the BIA operations."
83. Id. at 543. The Court noted that according to the BIA, preferences in hiring and promotions of Indians were necessary in order to make the agency "more responsive to the interests of the people it was created to serve."
84. Id. "If the Indians are exposed to any danger, there is none greater than the residence among them of unprincipled white men."
85. Id. at 542 n. 11.
86. Id. at 537.
87. Goldberg, supra note 38, at 948 (explaining that the discursive use of equality principles has always been used to invalidate laws privileging American Indians, but that the earlier cases focused on "emancipating" American Indians from federal domination). As Professor Carole Goldberg aptly notes, "[t]his rhetoric of emancipation conveniently ignored the possibility that Indians might be able to rid themselves of the worst forms of federal domination without losing their special rights, status, and benefits."
88. Id. at 947.
89. 42 U.S.C. § 2000e-2(a) (2000) (prohibiting discrimination in employment on the basis of race, color, national origin or sex).
90. 42 U.S.C. § 2000e-16(a) (2000 & Supp. 2007) (proscribing discrimination in federal employment).
91. Mancari v. Morton, 359 F. Supp. 585, 587 (D.N.M. 1973).
92. Id. at 591. The court opted not to rule on the constitutionality of the policy but stated that "we could well hold that the statute must fail on constitutional grounds."
93. Id.
94. Central to the district court's decision was the "reality" of the policy, which had already gone "far beyond the formative stage." Id. at 588 (explaining that the violation of the individual rights of the plaintiffs, who were teachers and programmers and had received advanced training, was deeply problematic).
95. Id. at 589-90 (quoting Senator Byrd's remarks in favor of the Equal Employment Opportunities Act of 1972).
96. Id.
97. The Supreme Court noted probable jurisdiction, which enabled the case to go directly to the Court from the three-judge district court. Morton v. Mancari, 417 U.S. 535, 537 (1974).
98. Id. at 554.
99. Id. ("[Preference is reasonably and directly related to a legitimate, nonracially based goal [which is] the principal characteristic that generally is absent from proscribed forms of racial discrimination.").
100. See id. at 554 n.24. Federal recognition refers to what Professor Matthew Fletcher expressed as "that magical status that most Indian tribes try to achieve."
101. Fletcher, supra note 25, at 489, 489-90 ("[Federally recognized Indian tribes benefit from the trust relationship between the federal government and Indian tribes."
102. (citing CRAMER, supra note 25, at 5-6)).
103. See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995) (holding that governmental classifications based on race must be subject to strict scrutiny analysis).
104. Mancari, 417 U.S. at 553.
105. See GETCHES ET AL., supra note 30, at 41-216 (providing a history of federal Indian law and policy). The policy of self-determination began in the early 1960s as an official abandonment of the previous policy of terminating Indian tribes.
106. See id. at 218.
107. See Part II infra (discussing the significance of attaining the status of a federally recognized tribe).
108. See id. Cf. Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978) (holding that an American Indian woman whose children were excluded from tribal membership because she married outside of the tribe may not sue the tribe in court because of tribal sovereignty, even though children of American Indian men who engaged in exogenous marriages acquire tribal membership).
109. Rice v. Cayetano, 528 U.S. 495, 499 (2000). Both the district court and the U.S. Court of Appeals for the Ninth Circuit upheld the statute on the basis that, similar to American Indians, Native Hawaiians have a guardianship relationship with Congress, and in this case, with the State of Hawaii.
110. Rice v. Cayetano, 146 F.3d 1075 (9th Cir. 1998);
111. Rice v. Cayetano, 963 F. Supp. 1547 (D. Haw. 1997).
112. 528 U.S. at 499;
113. see also U.S. CONST, amend. XV, § 1.
114. See 528 U.S. at 511. Both the district court and the U.S. Court of Appeals for the Ninth Circuit held for the State of Hawaii. The opinions emphasized the law's collective benefits on Native Hawaiians.
115. See Rice, 146 F.3d at 1076 (explaining that because Native Hawaiians are the only group benefiting from the trust administered by the OHA, restricting the vote to Native Hawaiians should be reviewed on a rational basis).
116. Rice, 146 F.3d at 1079.
117. Id. at 1080-81.
118. Rice, 528 U.S. at 512.
119. By contrast, the Ninth Circuit employed language akin to Mancari in its opinion, explaining that "the voting restriction is not primarily racial, but legal or political." Rice, 146 F.3d at 1079. Taking a historical approach, the court outlined the history of Hawaii, from the overthrow of the state's monarchy to the right of self-determination of the Native Hawaiians, and concluded that "special treatment" of Hawaiians is analogous to that of Native Americans.
120. See id. at 1080-81.
121. Rice, 528 U.S. at 512.
122. Id.
123. Id.
124. Id. at 513.
125. See Guy-Uriel E. Charles, Democracy and Distortion, 92 CORNELL L. REV. 601 (2007) (examining the use of race in voting schemes).
126. See Yamamoto, supra note 16, at 1776 (discussing how the Supreme Court's formalistic approach to race obscured the purpose of the Native Hawaiian-only law in promoting the right to self-government of Native Hawaiians).
127. See Rice, 528 U.S. at 522.
128. Id. at 514.
129. Id. at 517.
130. Id. (quoting Hirabayashi v. United States, 320 U.S. 81 (1943)).
131. Id. The Ninth Circuit also applied strict scrutiny but reached the opposite conclusion. See 146 F.3d at 1081. While the court distinguished Native Hawaiians from American Indians in that Native Hawaiians are not organized in tribes, the opinion nevertheless stressed that merely categorizing the voting restriction as a race-based classification does not necessarily mean that it is unconstitutional.
132. See id.
133. 528 U.S. at 518.
134. Id. at 519.
135. Id. at 520.
136. Id. at 526-27 (Breyer, J., concurring) (providing examples of American Indian tribal membership qualifications that relied in part on blood quantum restrictions but other criteria as well including the ability to trace an ancestor's name on a tribal roll).
137. Id. at 527.
138. 25 C.F.R. § 83.4 (2007).
139. 25 C.F.R. § 83.6(c) (2007) (explaining that all seven criteria must be met in order to acquire federal acknowledgment).
140. 25 C.F.R. § 83.7(a) (2007).
141. Id. at § 83.7(b).
142. Id. at § 83.7(c).
143. Id. § 83.7(d).
144. Id. § 83.7(e).
145. Id. § 83.7(f).
146. Id. § 83.7(g).
147. MARK EDWIN MILLER, FORGOTTEN TRIBES 17 (2004).
148. See Gerald Torres & Kathryn Milun, Translating Yonnondio by Precedent and Evidence: The Mashpee Indian Case, 1990 DUKE L.J. 625, 634 (1990).
149. See Rice v. Cayetano, 528 U.S. 495, 499-500 (2000).
150. See also Rona Tair-ko Halualani, Purifying the State, State Discourses, Blood Quantum, and the Legal Mis/Recognition of Hawaiians, in DAVID THEO GOLDBERG ET AL., BETWEEN LAW AND CULTURE, RELOCATING LEGAL STUDIES 141, 144-47 (2001) (discussing the social hierarchical and cultural framing of Native Hawaiians).
151. 25 C.F.R. §§ 83.1-83.3(a) (2007).
152. Id. at § 83.1.
153. Id. at § 83.2. What makes this process particularly curious is that that the inherent sovereignty of American Indian tribes has long been recognized in constitutional jurisprudence.
154. See U.S. CONST, art. 1, § 8, cl. 3 (noting that Congress has the power to regulate commerce with the Indian tribes);
155. Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 561 (1832) (stating that the Cherokee Nation was a "distinct community occupying its own territory, with boundaries accurately described");
156. Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 17 (1831) (recognizing that American Indian tribes are domestic dependent nations). Despite the recognition of this inherent sovereignty, an American Indian tribe is not considered to have a legitimate political status unless so granted the status by the federal government.
157. See Kahawaiolaa v. Norton, 386 F.3d 1271, 1273 (9th Cir. 2004), cert, denied, 545 U.S. 1114 (2005) ("[A]as far as the federal government is concerned, an American Indian tribe does not exist as a legal entity unless the federal government decides that it exists.").
158. 25 C.F.R. § 83.2 (stating that federal acknowledgment of tribal status confers responsibilities, powers, limitations and obligations of such tribes).
159. Fletcher, supra note 25, at 489-90 (describing federal recognition as that "magical status that most Indian tribes try to achieve because . . . federally recognized Indian tribes benefit from the trust relationship between the federal government and Indian tribes" which subsequently confers several benefits to its members).
160. See id.
161. Morton v. Mancari, 417 U.S. 535, 555 (1974).
162. 386 F.3d 1271 (9th Cir. 2004) (challenging the regulations under the Fifth Amendment).
163. Id. at 1274.
164. Id. at 1282-83.
165. Id. at 1279.
166. It should be noted that another way an indigenous group may acquire political status is through congressional statute. Since Rice was decided, for example, there has been a bill in Congress that seeks to recognize the political status of Native Hawaiians.
167. See S. 310, 110th Cong. (2007) (proposing the Native Hawaiian Reorganization Act of 2007, which is also known as the "Akaka Bill"). For analysis of the Akaka Bill
168. see R. H K Lei Lindsey, Comment, Akaka Bill: Native Hawaiians, Legal Realities, and Politics as Usual, 24 HAW. L. REV. 693 (2002).
169. Indeed, American Indian tribes have long utilized blood distinctions as one way of defining membership and attendant rights and privileges. See Spruhan, Legal History, supra note 26, at 24-44 (explaining the historical use of blood quantum among American Indian tribes). Yet, as recent events in the Cherokee Nation show, the right of sovereignty can lead to troubling results.
170. See Evelyn Nieves, Putting to a Vote the Question 'Who is Cherokee?', N.Y. TIMES, Mar. 3, 2007, at A9;
171. Slave Descendants Lose Tribal Status, N.Y. TIMES, Mar. 4, 2007, at A24. For additional discussion about the issue of membership rights of American Indians with African ancestry
172. see Ray, supra note 1, at 388
173. and Carla D. Pratt, Tribes and Tribulations: Beyond Sovereign Immunity and Toward Reparation and Reconciliation for the Estelusti, 11 WASH. & LEE RACE & ETHNIC ANC. L.J. 61, 75-93 (2005) (examining several American Indian tribes, including the Cherokee Nation, that engaged in slavery).
174. Seenote 13 supra.
175. I note, however, that while I believe in the importance of placing these laws in the colonial context from which they arose, my discussion reflects my perspective as an observer. There were many historical events, factors and considerations that led to these laws that this Essay is unable to discuss fully.
176. See Act of July 9, 1921, ch. 42, 42. Stat. 108.
177. Arakaki v. Lingle, 477 F.3d 1048, 1054 (9th Cir. 2007)
178. (quoting Act of July 9, 1921, ch. 42, § 101(b)(1), 42 Stat. 108). For an excellent discussion of the history of Native Hawaiian land ownership and historical origins of the HHCA
179. see VAN DYKE, CROWN LANDS, supra note 16, at 237-53.
180. See VAN DYKE, CROWN LANDS, supra note 16, at 237.
181. Id. at 13-15 (explaining that commoners sought permission from the chiefs to occupy and use the lands and the chiefs in turn relied upon the commoners to provide them with basic needs, including food and clothing).
182. See id. at 11-29 (providing a brief overview of Native Hawaiian history prior to the arrival of westerners in 1778).
183. See id. at 17 (stating that the Hawaiian Islands were unified under the rule of King Kamehameha I);
184. see also Rice v. Cayetano, 528 U.S. 495, 501 (2000) (stating that Hawaii was unified under King Kamehameha I in 1810).
185. See VAN DYKE, CROWN LANDS, supra note 16, at 27 (discussing the enactment of the 1840 Constitution, which created the constitutional monarchy, legislature and Supreme Court).
186. See id. at 42. The king believed that dividing the lands would protect Hawaiian lands from hostile foreign encroachments.
187. See id. at 30. The process of dividing the lands was complex and a full analysis is beyond the scope of this Essay. The main thrust of the proposal for dividing the lands was that after the king had decided which lands he wanted to retain, one-third of the remaining lands would allocated to the government, one-third would be allocated to the chiefs and the remaining one-third to the commoners.
188. See id. at 41.
189. Id. at 54.
190. See id. at 52.
191. See id. (explaining that lands that were forfeited or not claimed by commoners became part of Government Lands).
192. See id. at 38 (discussing how changes in land ownership in Hawaii were proposed by an American lawyer William Little Lee, who himself later acquired a large parcel of Hawaiian lands).
193. See id. (stating that "much of [the] lands moved quickly into foreign lands").
194. Id. at 151-53.
195. See id. at 172-87 (discussing the formation of the Republic of Hawaii).
196. Annexation of the Hawaiian Islands, 30 Stat. 750 (1898) (providing for the annexing of the Hawaiian Islands to the United States).
197. VAN DYKE, CROWN LANDS, supra note 16, at 237 (explaining that federal officials wanted to reverse the "native population's progressively declining numbers" and thus "rehabilitate" them).
198. See H.R. Rep. No. 839, at 2 (2d Sess.1920).
199. See Rice v. Cayetano, 528 U.S. 495, 503 (2000) (discussing the HHCA's legislative history).
200. See id.
201. See Iijima, supra note 13, at 118-20 (discussing Congress' findings on how the loss of lands affected Native Hawaiians).
202. See H.R. Rep. No. 839, at 4. Native Hawaiians need lands and homes because "when they were frozen out of their lands and driven into the cities they had to live in the cheapest places, tenements [and] [t]hat is one of the reasons why the Hawaiian people are dying".
203. Arakaki v. Lingle, 477 F.3d 1048, 1054 (9th Cir. 2007).
204. VAN DYKE, CROWN LANDS, supra note 16, at 247.
205. Admission Act of March 18, 1959, Pub. L. No. 86-3, 73 Stat. 4 (admitting Hawaii as a state of the United States).
206. VAN DYKE, CROWN LANDS, supra note 16, at 248 (noting that the federal government required the state to take responsibility for administering the Hawaiian Home Lands Program as a condition of admission).
207. Admission Act, § 5(f), 73 Stat. at 6 (emphasis added). See also VAN DYKE, CROWN LANDS, supra note 16, at 258 (discussing the transfer of the HHCA to the State of Hawaii).
208. Rice v. Cayetano, 528 U.S. 495, 510 (2000).
209. See JOSEPH WILLIAM SINGER, INTRODUCTION TO PROPERTY 11 (2005) (explaining that restrictions on the alienability of property inhibit individual liberty and pose barriers to the efficient marketability of property).
210. See Shelley v. Kraemer, 334 U.S. 1, 20-23 (1948) (proscribing state enforcement of private racial covenants);
211. Oyama v. California, 332 U.S. 633, 647 (1948) (overturning an escheat proceeding in which the property of a person of Japanese descent vested to the state because of the state's view that the ownership of the property violated California's Alien Land Law);
212. Buchanan v. Warley, 245 U.S. 60, 75-79 (1917) (invalidating a city ordinance that proscribed the occupancy and sale of real property on the basis of the occupant's race or color).
213. Buchanan, 245 U.S. at 70-71. The city ordinance made it "unlawful for any colored person to move into and occupy as residence . . . any house upon any block upon which a greater number of houses are occupied as residences ... by white people."
214. Id.
215. See id. at 75-79 (discussing the enactment and purpose of the Fourteenth Amendment to provide protection to the "emancipated race" from discrimination by the states).
216. Id. at 79.
217. See Oyama, 332 U.S. at 647. According to the Supreme Court, the property rights of an American citizen "may not be subordinated merely because of his father's country of origin."
218. Id.
219. See id. at 640. Under California's Alien Land Law of 1913, persons who were ineligible for citizenship were not allowed to own property. At that time, U.S. immigration law prohibited immigrants from Japan from becoming U.S. citizens. Thus, California's Alien Land Law applied only to Japanese. In fact, as scholars have commented, the Alien Land Laws were directed primarily at Japanese Americans.
220. See, e.g., Keith Aoki, No Right to Own?: The Early Twentieth Century "Alien Land Laws" as a Prelude to Internment, 40 B.C. L. REV. 37, 38-39 (1998) (stating that "[t]he salient point of these laws was their strongly racialist basis - 'aliens ineligible to citizenship' was a disingenuous euphemism designed to disguise the fact that the targets of such laws were first-generation Japanese immigrants, or 'Issei.'").
221. Shelley v. Kraemer, 334 U.S. 1, 14 (1948) (holding that judicial enforcement of private covenants constitutes state action for purposes of the Fourteenth Amendment).
222. See Buchanan, 245 U.S. at 82;
223. Oyama, 332 U.S. at 647. I emphasize here that Buchanan and progeny compelled only states to cease from formally discriminating against African Americans - through the use of public law - in the sale and occupation of property. Discrimination in the sale and lease of property against African Americans and other people of color continued for decades after Buchanan through restrictive covenants and discriminatory personal choices. Discrimination in the sale and lease of private property continued until the passage of the Fair Housing Act of 1968.
224. See 42 U.S.C. § 3604 (prohibiting discrimination in the sale, rental and financing of dwelling based on race, color, national origin, sex, familial status and disability).
225. Rice v. Cayetano, 528 U.S. 495, 518-19 (2000).
226. 477 F.3d 1048 (9th Cir. 2007).
227. Id. at 1053 (explaining that the plaintiffs challenged the programs under the Fifth and Fourteenth Amendments of the Constitution).
228. Id. (noting the procedural history of the case that focused in large part on the ability of the plaintiffs to successfully argue that they had standing to sue the State of Hawaii and the U.S. government for creating and managing the state programs).
229. Id.
230. Id. at 1066.
231. VAN DYKE, CROWN LANDS, supra note 16, at 247. Professor Van Dyke argues that: These interests are certainly 'compelling' under our legal system, because they involve providing redress for the loss of the most essential rights recognized under U.S. and international law. And limiting these programs to persons of Hawaiian ancestry will frequently be the 'least drastic alternative,' because it is these people of and their ancestors who have suffered the losses and who uniquely have the right to self-determination and self-government.
232. REV. AM. SAMOA CONST, art. I, § 3, available at http://www.asbar.org/asconst.htm. The Secretary of the Interior approved the Constitution.
233. See ARNOLD H. LEIBOWITZ, DEFINING STATUS: A COMPREHENSIVE ANALYSIS OF UNITED STATES TERRITORIAL RELATIONS 427 (1989). In 1983, Congress removed the discretion of the Secretary of the U.S. Department of Interior to make unilateral changes to the American Samoan Constitution.
234. See 48 U.S.C. § 1662a (2000) (providing that any changes to the Constitution of American Samoa may be made only through an act of Congress).
235. AM. SAMOA CODE ANN. § 37.0204(b) (2004), available at http://www.asbar.org/Newcode/Title%2037.htm.
236. Id. § 37.0204(c) (emphasis added), available at http://www.asbar.org/Newcode/Title%2037.htm.
237. FELIX M. KEESING, MODERN SAMOA: ITS GOVERNMENT AND CHANGING LIFE 266 (1934).
238. STANLEY K. LAUGHLIN, JR., THE LAW OF THE UNITED STATES TERRITORIES AND AFFILIATED JURISDICTIONS 318 (1995) (discussing the forms of ownership and acquisition of land in American Samoa). Families generally live in villages, which are comprised of several households.
239. See LEIBOWITZ, supra note 152, at 404. The matai system is another component of the American Samoan social and cultural life that is inconsistent with the Constitution.
240. See U.S. CONST, art. I, § 9, cl. 8 ("No Title of Nobility shall be granted by the United States.").
241. Today, there are seventy-two villages in American Samoa. See Am. Sam. GIS User Group, Historical Facts About American Samoa, http://doc.asg.as/about/ amsamoa.html (last visited June 27, 2007) (indicating sixty-four villages in Tutuila and Aunu'u and eight in the Manu'a Islands).
242. KEESING, supra note 155, at 270 (examining the Samoan communal land tenure system).
243. See LEIBOWITZ, supra note 152, at 425.
244. See id.
245. See LEIBOWITZ, supra note 152, at 414-15 (explaining the social, cultural and political upheaval that emerged after the U.S. and other foreign countries began to take interest in the Samoan islands).
246. See id.
247. Id.
248. A critical response to this argument may be grounded on Antonio Gramsci's theory of hegemony where it could be contended that the Samoans may have perceived the United States to be more superior and thus better able to lead them economically, militarily and socially. See EDIBERTO ROMÁN, THE OTHER AMERICAN COLONIES: AN INTERNATIONAL AND C ONSTITUTIONAL LAW EXAMINATION OF THE UNITED STATES' NINETEENTH AND TWENTIETH CENTURY ISLAND CONQUESTS 10-11 (2006) (discussing Antonio Gramsci's theory of hegemony and application in the colonial context).
249. See Joseph William Singer, Sovereignty and Property, 86 Nw. U. L. Rev. 1, 6-7 (1991) [hereinafter Singer, Sovereignty and Property] (explaining that when some American Indian tribes reserved hunting and fishing rights near lands they ceded to the government by treaty and thus, when such rights are described as discrimination against non-Indians, they ignore that the reserved rights constitute property rights).
250. LEIBOWITZ, supra note 152, at 424 (discussing the 1904 Cession of Manu'a Islands).
251. Derrick A. Bell, Jr., Comment, Brown v. Board of Education and the Interest-Convergence Dilemma, 93 HARV. L. REV. 518 (1980). Relying on Professor Derrick Bell's interest convergence theory, it could be argued that the United States adopted the land alienation law in American Samoa not necessarily because it was concerned about the indigenous peoples but more so because of the country's interest in securing military interests.
252. LEIBOWITZ, supra note 152, at 413 (discussing the military interest in Pago Pago harbor in American Samoa).
253. LEIBOWITZ, supra note 152, at 412-13.
254. LEIBOWITZ, supra note 152, at 414 (discussing the Berlin Conference of April 1889 which resulted in the creation of a "tripartite foreign authority over any Samoan government").
255. Craddick v. Territorial Registrar of Am. Sam., 1 Am. Samoa 2d 11, 13 n.3 (1980), available at http://www.asbar.org/Cases/Second-Series/1ASR2d/1ASRsd10. htm#N_3. The court makes the mistake of referring to the agreement that emerged from the Berlin Conference of April 1889 as the "Treaty of Berlin" and stating that it was signed in 1890. In fact, the Treaty of Berlin was entered into in 1889 and eventually ratified in 1900.
256. See Treaty of Berlin, 1889, 31 Stat. 1878.
257. See Treaty of Berlin, 1889, 31 Stat. 1878;
258. see also LEIBOWTIZ, supra note 152, at 414 (explaining that Great Britain gave up its claims to Samoa in exchange for other lands in the Pacific and Africa).
259. KEESING, supra note 155, at 266.
260. See Treaty of Berlin, 1889, 31 Stat. 1878.
261. LEIBOWITZ, supra note 152, at 413-14.
262. Id. at 414.
263. Craddick v. Territorial Registrar of Am. Sam., 1 Am. Samoa 2d 11, 13 fn. 3 (1980), available at http://www.asbar.org/Cases/Second-Series/1ASR2d/ 1ASR2d10.htm#N_3_ (quoting Treaty of Berlin).
264. Eventually, American Samoans were allowed to establish their own local legislature. See LEIBOWITZ, supra note 152, at 452-54 (explaining the historical events that subsequently led to the creation of a locally elected legislature). Today, they have a bicameral legislature and a governor who, although previously appointed by the Department of Interior, is now elected.
265. See id. at 453-55. The matai system, however, continues to play an important part in the legislative system in that all senators have to be a matai.
266. See id. at 452-53. The establishment of the local legislature, however, did not change the manner with which decisions about use of lands and land ownerships are made. As previously noted, land ownership remains communal and the matai continues to be the head of the family who makes overall administrative decisions about use and ownership of the lands.
267. See id. at 430.
268. The American Samoans' determination to protect their property rights even influenced their decision to reject U.S. citizenship because they feared that doing so would implicate the validity of their land tenure regime. LEIBOWITZ, supra note 152, at 426 (explaining that in 1948, 90 Samoan chiefs requested Congress to delay legislation that would have provided them with U.S. citizenship). To this day, American Samoans are U.S. nationals.
269. See id. at 449.
270. See id. at 430.
271. See Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States of America (CNMI Covenant), Act of Mar. 24, 1976, Pub. L. NO. 94-241, 90 Stat. 263 (codified at 48 U.S.C. § 1801 (2000)). As a result of the Covenant, the people of the Northern Marianas re-obtained the authority to govern themselves. The Covenant provided for the election of a governor and establishment of a bicameral legislature in which the three main islands in the Northern Marianas have equal representation in the Senate and representation in the House of Representatives by population. It also created a local two-tiered judicial system and establishment of a federal district court. Finally, the Covenant conferred U.S. citizenship on the Marianas people.
272. CNMI Covenant, art. VIII, § 805(a).
273. Id. at art. VIII, § 805.
274. CNMI CONST., art. XII, § 1, available at http://cnmilaw.org/constitution_article12.htm.
275. Id. at § 4. The section also states that a child adopted before the age of eighteen years by a person of Northern Marianas descent is also considered a person of Northern Marianas descent.
276. Id. at § 3.
277. See Wabol v. Villacrusis, 958 F.2d 1450, 1452 n.2 (noting the amendment to the Covenant).
278. See LAUGHLIN, supra note 156, at 425-26;
279. LEIBOWITZ, supra note 152, at 522-23 (discussing the history of the Northern Mariana Islands).
280. See generally DON A. FARRELL, HISTORY OF THE NORTHERN MARIANA ISLANDS (Phyllis Koontz ed., 1991) (discussing the history of the Northern Mariana Islands). At the end of the Spanish-American War, Spain sold the Northern Marianas to Germany and ceded Guam (then part of the Marianas) to the United States.
281. See LAUGHLIN, supra note 156, at 428;
282. LEIBOWITZ, supra note 152, at 523-25. Germany's colonial hold on the Marianas did not last very long. By 1914, when World War I began, Japan took possession of the Northern Marianas and controlled the islands until the end of World War H.
283. See LAUGHLIN, supra note 156, at 428;
284. LEIBOWITZ, supra note 152, at 525-26.
285. See Trusteeship Agreement for the Former Japanese Mandated Islands, July 18, 1947, 61 Stat. 3301, T.I.A.S. No. 1665, 8 U.N.T.S. 189. The TTPI was part of the International Trusteeship System, which was established for the purpose of overseeing the achievement of self-government or independence of former colonized territories.
286. Id.
287. See FARRELL, supra note 188, at 120.
288. Howard P. Willens & Deanne C. Siemer, The Constitution of the Northern Mariana Islands: Constitutional Principles and Innovation in the Pacific Setting, 65 GEO. L.J. 1373, 1407 (1977) (discussing the implementation of land alienation restriction policy under Trust Territory period, which was ultimately under the governance of the United States).
289. See LEIBOWITZ, supra note 152, at 501.
290. The rest of the TTPI islands preferred a status of free association. See LEIBOWITZ, supra note 152, at 528-29.
291. See id. at 527-29.
292. Id. at 591.
293. Id. at 592.
294. See id. at 591.
295. Id. at 591 (citing U.S. Delegation, Talking Points on Land Alienation 3, May 25, 1974).
296. Id. at 592.
297. Id.
298. See Peter J. Spiro, The Impossibility of Citizenship, 101 MICH. L. REV. 1492, 1492-93 (2003) (discussing the minimal discussion of issues involving the U.S. territories in traditional constitutional discourse). More recently, scholars have begun to examine more closely questions of constitutionalism and citizenship in the territories.
299. See ROMÁN, supra note 164, at 59-86.
300. See also T. ALEXANDER ALEINIKOFF, SEMBLANCES OF SOVEREIGNTY: THE CONSTITUTION, THE STATE, AND AMERICAN CITIZENSHIP (2002);
301. FOREIGN IN A DOMESTIC SENSE: PUERTO RICO, AMERICAN EXPANSION, AND THE CONSTITUTION (Christina Duffy Burnett & Burke Marshall eds., 2001).
302. 1 Am. Samoa 2d 11 (1980), available at http://www.asbar.org/Cases/ Second-Series/1ASR2d/1ASR2d10.htm#N_3_.
303. Id. at 12.
304. Id.
305. Id. at 11 (explaining that the challenge to the land alienation restriction was brought by an American citizen and his wife, who is a Native American Samoan). The Craddicks sought to register a warranty deed, which was denied by the Territorial Registrar because Douglas Craddick was not an American Samoan.
306. Id. at 13.
307. See supra notes 154-175 and accompanying notes.
308. Craddick, 1 Am. Samoa 2d at 13.
309. Id. at 14
310. (citing Haleck v. Lee, 4 Am. Samoa 519, 551 (1964), available at http://www.asbar.org/Cases/First-Series/4ASR/4ASR519.htm) (upholding the validity of the land alienation restriction law under the current statute).
311. Id.
312. Id. The court's utilization of the American Samoan claims to cultural preservation and protection may be criticized for essentializing and fetishizing Samoan culture. A critique of this claim to culture, however, is beyond the scope of this Essay.
313. 958 F.2d 1450, 1463 (9th Cir. 1992).
314. Id. at 1462.
315. Craddick, 1 Am. Samoa 2d at 12 (employing equal protection analysis).
316. Wabol, 958 F.2d at 1463. Several cases comprise the Insular Cases, which were a set of cases that decided the application of the U.S. Constitution in the newly acquired territories at the turn of the 20th century. In these cases, the Supreme Court held that only fundamental constitutional rights apply in the territories.
317. See, e.g., Armstrong v. United States, 182 U.S. 243 (1901);
318. De Lima v. Bidwell, 182 U.S. 1 (1901);
319. Dooley v. United States, 182 U.S. 222 (1901);
320. Downes v. Bidwell, 182 U.S. 244 (1901);
321. Goetze v. United States, 182 U.S. 221 (1901);
322. Grossman v. United States, 182 U.S. 221 (1901). Scholars have criticized the Insular Cases because they treat territorial peoples as second-class citizens.
323. See Ediberto Román, The Alien-Citizen Paradox and Other Consequences of U.S. Colonialism, 26 FLA. ST. U. L. REV. 1, 39 (1998) (contending that the first step to granting Puerto Rican's equal citizenship is overturning "the incorporated/unincorporated territory distinction of the Insular Cases.").
324. Wabol, 958 F.2d at 1459-63.
325. See id. at 1459.
326. Id. at 1461.
327. Id. at 1462 (stating that the "application of the constitutional right could ultimately frustrate the mutual interests that led to the Covenant").
328. Id. at 1461.
329. Id. at 1462.
330. Id.
331. Id. ("Where land is so scarce, so precious, and so vulnerable to economic predation, it is understandable that the islanders' vision does not precisely coincide with mainland attitudes toward property and our commitment to the ideal of equal opportunity in its acquisition.").
332. Id.
333. Id.
334. Claims that are grounded on rights to cultural differences are among those arguments that have been rejected in equal protection law. See Richard T. Ford, Race as Culture? Why Not?, 47 UCLA L. REV. 1803, 1803 (2000) ("For the most part, [proposals that advance cultural preservation rights] have not yet been embraced by the courts."). The Supreme Court in Rice expressly articulated this bias when it explained that the U.S. Constitution should be the starting point from which Native Hawaiians ought to address the realities of the loss of their culture wrought by colonization.
335. See Part I, infra and accompanying notes. Yet, as explained previously, current equal protection elides the colonial legacy of measures designed to address the effects of colonization and by design is ill-equipped to adequately address those concerns unless we begin to see how racial and political identities intersect. Given the marginalization of cultural claims within equal protection jurisprudence, what import might Craddick and Wabol have for normative equal protection law? The privileging of indigenous peoples' ownership of lands and their culture illustrates the potential of equal protection's framework's to expand beyond its prescribed borders. Unlike the equal protection racial versus political paradigm, which invalidated the Native Hawaiian law for using "ethnic characteristics and cultural traditions," Rice v. Cayetano, 528 U.S. 495, 496 (2000), the more expansive interpretation of equal protection norms employed in the territories context accommodates a separate and distinct cultural identity.
336. See James A. Branch, Jr., The Constitution of the Northern Mariana Islands: Does a Different Cultural Setting Justify Different Constitutional Standards?, 9 DENV. J. INT'L L. & POL'Y 35, 59-62 (1980) (stating that the land alienation restrictions in the CNMI present several constitutional conflicts, including the Equal Protection Clause of the Fourteenth Amendment);
337. Marybeth Herald, Does the Constitution Follow the Flag into United States Territories or Can it be Separately Purchased and Sold?, 22 HASTINGS CONST. L.Q. 707, 742 (1995) (critiquing the Ninth Circuit's use of "cultural genocide" to uphold the constitutionality of the CNMI land alienation restriction law because of the court's failure to analyze how the law protects culture and family identity);
338. Gerald L. Neuman, Constitutionalism and Individual Rights in the Territories, in FOREIGN IN A DOMESTIC SENSE 182, 200 (Christina Duffy Burnett & Burke Marshall eds., 2001) ("Accepting linguistic and cultural differences as the basis for recognizing separate peoples within a permanent political union [challenges the character of U.S. citizenship].");
339. James R. Thornbury, A Time for Change in the South Pacific?, 67 REV. JUR. U.P.R. 1099, 1108-1110 (1998)
340. (criticizing Presiding Bishop v. Hodel, 830 F.2d 374 (D.C. Cir. 1987), which noted with approval the legitimate interest in preserving and respecting American Samoa's traditions regarding land ownership).
341. Morris R. Cohen, Property as Sovereignty, 13 CORNELL L.Q. 8, 12. (1927). I recognize that the subject of Cohen's article is different from the context I am addressing in this Essay. Nevertheless, the general point of Cohen's article that property rights confer some element of power forms an important part of my thesis.
342. Cohen's article addressed laissez faire and the unrecognized relationship between economic wealth and sovereignty. See id. at 14.
343. Singer, Sovereignty and Property, supra note 165, at 7 ("Federal Indian law therefore raises serious questions about the meaning of democracy, property, equality and the rule of law in the United States.").
344. Abner S. Greene, Kiryas Joel and Two Mistakes About Equality, 96 COLUM. L. REV. 1,4(1996).
345. Margaret Jane Radin, The Liberal Conception of Property: Cross Currents in the Jurisprudence of Takings, 88 COLUM. L. REV. 1677, 1679 (1988).
346. G.A. Res. 61/295, U.N. Doc. A/RES/61/295 (Sept. 13, 2007).
347. See Press Release, United Nations Permanent Forum on Indigenous Peoples, Historic Milestone for Indigenous Peoples Worldwide as UN Adopts Rights Declaration (Sept. 13, 2007) (explaining that that Declaration on the Rights of Indigenous Peoples was adopted by 143 countries and rejected by the United States, Canada, New Zealand and Australia), available at http://www.un.org/esa/socdev/unpfii/documents/Declaration_ip_pressrelease.pdf.
348. G.A. Res. 61/295, supra note 234, at art. 3.
349. Id. at art. 4.
350. Id. at art. 5.
351. See id. at arts. 26-28.
352. Id. at art. 26.
353. Id. at art. 32.