The Meaning of Equal Protection and Fundamental Rights in American Samoa

In this article, I illuminate how the Fourteenth Amendment of the United States Constitution,Footnote ¹ along with the Charter of the United Nations (UN Charter)Footnote ² and the United Nations’ Universal Declaration of Human Rights (UDHR),Footnote ³ were interpreted by U.S. military and Samoan leaders in congressional hearings held in the aftermath of World War II (WWII) to influence territorial policy in American Samoa. During these hearings, naval and Samoan leaders expressed concerns about recent domestic and international trends that they believed were moving the United States toward constitutional “colorblindness.” They explained to U.S. lawmakers that if a future Supreme Court interpreted the Constitution as colorblind, it would mean that the Equal Protection Clause of the Fourteenth AmendmentFootnote ⁴ prohibits any racial classification, no matter its purpose. Because of this, they made arguments against the passage of any organic actFootnote ⁵ for American Samoa that included the extension of citizenship, equal protection, or due process.Footnote ⁶ Naval and Samoan leaders argued that if Samoans became U.S. citizens, or were governed by equal protection or due process, a future court could decide that existing race-based restrictions that prohibited non-Samoans from land ownership in American Samoa were now unconstitutional because they relied on racial designations and violated a domestic and international fundamental right to property.

By making these arguments, military and Samoan leaders illuminate the inherent ambiguity and unsettled nature of constitutional law, fundamental rights, citizenship, equal protection, and due process jurisprudence and their possible unintended effects in the U.S. unincorporated territories. The article demonstrates that Samoan leaders highlighted the dynamic, constantly changing nature of constitutional interpretation in the United States by focusing on the Court’s role and power in interpreting the Constitution. Samoan leaders emphasized the possibility of a future Court declaring that the fundamental right to property, or the extension of citizenship, equal protection, or due process, could all mean that race-based land ownership restrictions in American Samoa were unconstitutional. Samoan leaders thus made influential arguments to U.S. lawmakers to protect their cultural autonomy and local politics from any future form of white-settler colonialism. Naval and Samoan leaders ultimately thought that the passage of an organic act that extended citizenship, equal protection, or due process to American Samoa threatened existing laws designed to protect the Samoan culture that relied on racial classifications for land ownership. They argued that race-based land restrictions could be declared unconstitutional by the federal judiciary based on recent court decisions and new developments in international law that they believe further legitimized legal colorblindness and a fundamental right to individual property ownership.Footnote ⁷

This article does not make any arguments about whether American Samoa should be constitutionally allowed to maintain race-based land restrictions if citizenship, equal protection, or due process were extended to Samoans, or if the extension of citizenship alone would raise constitutional issues for any policies designed to protect Samoan culture, based on the broader legal history of U.S. imperialism in the unincorporated territories.Footnote ⁸ Instead, the focus of this article is on why naval and Samoan leaders expressed concerns to U.S. lawmakers that American Samoa would no longer be able to enforce race-based land ownership restrictions after the Court’s decision in Shelley versus Kraemer (1948)Footnote ⁹ and the passage of the UDHR if Congress passed an organic act for American Samoa that extended citizenship, equal protection, or due process. I demonstrate that these arguments were rooted in a theory of legal colorblindness and fundamental rights that members of the U.S. military believed it was becoming hegemonic domestically and internationally in the aftermath of WWII.

For naval leaders, after the Court’s decision in Shelley and the ratification of the UDHR, all race-based classifications, even those intended to protect the cultural autonomy of subordinated populations, were now likely to be unconstitutional. These military leaders thus believed that the Court and international law had shifted to constitutional colorblindness and heightened scrutiny of violations of fundamental rights. I argue that these military leaders highlighting the negative effects of a colorblind interpretation of the Fourteenth Amendment and the UDHR is an example of what Holger Droessler describes as “preservationist paternalism.”Footnote ¹⁰ This means that these naval leaders were engaging in a form of white supremacy based on a racist, but genuine, motivation to protect Samoan culture, autonomy, and identity from external, “Western,” “civilized” forces. Members of Congress, however, believed that Samoans could become U.S. citizens, be governed by equal protection and due process, and still be allowed to constitutionally maintain racial restrictions on land ownership in American Samoa.

The arguments highlighted in this article, between U.S. military officers and Samoan leaders about the extension of an organic act for American Samoa, offer a precursor to Morton versus Mancari (1974).Footnote ¹¹ The Mancari decision was based on a challenge to hiring preferences the federal government gave to indigenous people for positions at the Bureau of Indian Affairs (BIA), which the Court deemed constitutional. The Court’s decision in Mancari and debates over the extension of an organic act to American Samoa that included citizenship, equal protection, or due process help illuminate constitutional arguments over the meaning of equal protection, indigenous autonomy, and affirmative action. While Mancari allowed the federal government to give preference to indigenous candidates in hiring decisions, the Court has understood federally recognized tribes to have a sovereign political status that is not a racial classification.Footnote ¹²

One contribution this article makes is to supplement work on the legal history of citizenship in American Samoa and Guam.Footnote ¹³ This scholarship has explained and analyzed the Hopkins Committee, which was formed in 1947 to investigate and report on the status of Guam and American Samoa in the aftermath of WWII. The Hopkins Committee’s final report recommended a transfer from naval rule to a federal civilian government and to extend U.S. citizenship to American Samoa, based on what committee members at the time believed were the policy changes Samoans endorsed. In the post-WWII era, U.S. lawmakers recognized that the extension of citizenship would be a valuable form of propaganda to use against the Soviet Union, and now had the Navy’s support to extend citizenship to Guam and American Samoa. However, while members of the Hopkins Committee found evidence that Samoans were in favor of citizenship as late as 1947, by 1948 some Samoan leaders had started to petition Congress against the immediate extension of citizenship.Footnote ¹⁴

The article demonstrates that naval and Samoan leaders argued against the passage of an organic act in 1949, not just because of concerns over what the extension of U.S. citizenship would mean for American Samoa’s cultural autonomy. U.S. military and Samoan leaders argued that any organic act that included an equal protection or due process clause could also threaten American Samoa’s ability to prevent non-Samoans from owning and making individual property claims to land on the islands. By 1949, naval and Samoan leaders made arguments to members of Congress that the Court’s decisions in Buchanan versus Warley (1917)Footnote ¹⁵ and, more recently, Shelley, and international law (with the passage of the UDHR), could be interpreted by a future Court to mean that American Samoa would no longer be able to enforce race-based land ownership restrictions for non-Samoans. This article thus adds to previous scholarship on the legal history of citizenship in American Samoa by illuminating that the extension of citizenship was not the only constitutional issue that influenced Congress when it decided against passing an organic for American Samoa in the early years of the Cold War.Footnote ¹⁶ Members of Congress were also influenced by the arguments that U.S. military and Samoan leaders made that focused on equal protection and due process. This article thus provides a more complete understanding of why U.S. lawmakers decided not to pass an organic act for American Samoa in 1949 and why Congress has still not passed an organic act that governs Samoans.

Another contribution of this paper is to illuminate how naval leaders and U.S. lawmakers had different interpretations of a seemingly transformative and “progressive” part of the Constitution (i.e., the Fourteenth Amendment) and a landmark document in human rights law (i.e., the UDHR), while still agreeing that neither fundamentally undermined the legal structure of the U.S. empire. U.S. military leaders argued that Samoan culture and American Samoa’s political system were threatened by the passage of any organic act that included equal protection, due process, or the extension of U.S. citizenship, because a future Court could declare any racial classification unconstitutional even if its purpose was to protect Samoan land from further colonization. Members of Congress, however, believed that precedents established in the Insular Cases ^{Footnote 17} and previous territorial models set within the U.S. empire, including Puerto Rico, the Philippines, Guam, and Hawaii, and white-settler colonial precedents generated from Federal Indian law,Footnote ¹⁸ would allow Samoans to protect their communal land structure, political system, and culture through race-conscious policies even if they were U.S. citizens and governed by equal protection and due process protections. All of these U.S. political actors, however, believed that the federal government had the power to maintain plenary authority over American Samoa after the ratification of the UDHR, and if Congress passed an organic act that extended citizenship and Fourteenth Amendment protections to Samoans. For these military and political elites, an explicit congressional application of the Fourteenth Amendment to American Samoa and the ratification of the UDHR did not threaten the fundamental legal structure of the U.S. empire that the Court established in the Insular Cases for any territory colonized by the United States after 1898.

After acquiring Puerto Rico, Guam, and the Philippines in 1898 in the aftermath of the Spanish-American War, the U.S. annexation of these territories led to a set of Court rulings decided in the early Twentieth Century, which became known as the Insular Cases. These territories did not fit the previous archetype of white-settler colonialism that the United States had used for territorial incorporation into the U.S. polity.Footnote ¹⁹ U.S. colonialism was premised on the violent dispossession of indigenous communities through genocide and territorial conquest, with white-settlers migrating to a territory, making ownership claims to land with the support of the federal government and military, and forming a republican system of government that Congress would incorporate as a state.

This model of U.S. white-settler colonialism was not meant to apply to the territories the United States annexed after the Spanish-American War, however. The federal government did not expect that enough white-settlers would migrate to Puerto Rico, Guam, or the Philippines to violently dispossess the local population, form a majority, take control of the local government, and then petition Congress to become a state. Instead, these territories would remain under U.S. control indefinitely, entering into a long-term state of colonial tutelage and only possibly becoming independent from the United States when Congress determined that they were ready for republican self-governance.Footnote ²⁰ U.S. military leaders and members of Congress thus did not intend for these territories to become full and equal states, which helps situate the historical context of the Court’s decisions on territorial status in the Insular Cases.

The Insular Cases were influenced by racial anxiety and Anglo-Saxon fear over what it would mean for the U.S. polity and “Americanism” with the inclusion of the non-white populations in the Philippines, Puerto Rico, and Guam (and American Samoa in 1899) into the U.S. body politic.Footnote ²¹ These decisions were rooted in Anglo-Saxon ideology and the belief in the inferiority of the non-white people living in Guam, American Samoa, Puerto Rico, and the Philippines.Footnote ²² Military leaders, members of Congress, and justices feared what it would mean for the U.S. polity if the residents of the unincorporated territories, whom these elites believed were either incapable of or not yet trained in democratic self-governance, became citizens and equal members in the political system of the United States with full constitutional rights, liberties, and protections. Congress has yet to pass an organic act for American Samoa and extend U.S. citizenship to Samoans; currently, Samoans remain categorized as “non-citizen nationals” by the federal government.Footnote ²³

The Insular Cases focused on whether the Constitution, including the Bill of Rights, applied automatically and in full force to these territories acquired by the United States from the Spanish Empire. The Court ruled that the territories acquired by the United States from the Spanish-American War were “unincorporated,” a newly created territorial status. The Court argued that these territories were “foreign in a domestic sense,” meaning that while they were under U.S. sovereignty, the full Constitution and its Bill of Rights does not automatically extend to them.Footnote ²⁴ The Court also established that certain “fundamental” rights do automatically apply in the unincorporated territories, but the justices left these undefined; this created more ambiguity regarding the constitutional protections that exist for people living in territory acquired by the United States after the precedents set in the Insular Cases. Put simply, the Insular Cases meant that, according to the Court, the unincorporated territories could be treated as separate and unequal from territories that have become states. The legal doctrine the Court created in the Insular Cases also allowed Congress to extend specific constitutional provisions and rights to each of the unincorporated territories through legislation. Instead of the automatic extension of citizenship or constitutional protections to the unincorporated territories, now it would require an act of Congress for residents of each territory to become U.S. citizens or have access to constitutional protections, except for undefined fundamental rights and liberties. The Insular Cases thus represent the constitutional legitimation of the U.S. empire.

In sum, after 1898, the Court argued that the United States could annex new territories with no intention of fully incorporating them into the U.S. polity while ruling over them with ambiguous, undefined, and unsettled constitutional restraints that could differ from the legal protections states have from federal power. The rulings in the Insular Cases established that the Constitution, except for undefined fundamental rights and liberties, does not automatically apply in the unincorporated territories. The jurisprudence the Court created in the Insular Cases allowed for Congress to create despotic governing structures that delegated political power to the U.S. military and naval governors in the unincorporated territories. The constitutional ambiguity of the Insular Cases helps explain why military leaders, members of Congress, and Samoans could have different interpretations and understandings of what citizenship, equal protection, due process, and the UDHR meant for American Samoa and its cultural autonomy.

It is important to remain cognizant that despite these differing understandings and interpretations of the Fourteenth Amendment and UDHR, naval leaders and members of Congress had no ambiguity about the United States’ plenary power in maintaining authoritarian military control over American Samoa. Military leaders and U.S. lawmakers believed that if Samoans became U.S. citizens, were governed by equal protection, or protected by due process, the overarching imperial relationship between American Samoa and the federal government would not be transformed. These naval leaders and political actors argued that any change to American Samoa’s status in the form of an organic act would still mean that the federal government maintained plenary authority over the territory. Members of the U.S. military and lawmakers thus agreed that the federal government could maintain an imperialist system of subordination and oppression in the unincorporated territories even if Congress passed an organic act extending citizenship, equal protection, or due process to Samoans.Footnote ²⁵

In the context of the U.S. empire, then, the status of citizenship, the meaning of equal protection, due process, and the rights that exist in the unincorporated territories are unclear and unsettled. This ambiguity has allowed the United States to reframe coercion, i.e., the impossible choices that U.S. officials created for American Samoa regarding citizenship, equal protection, and due process, as consent or decolonization, i.e., deference to the will of Samoans. The legal history of citizenship in American Samoa demonstrates that any race-conscious interpretation of the Fourteenth Amendment rooted in an anti-subordination principle in the U.S. unincorporated territories needs to be cognizant of the structural relationship between the United States and its unincorporated territories beyond citizenship, equal protection, or due process status. For example, an interpretation of equal protection undergirded by anti-subordination principles that allows Samoans to become U.S. citizens and protect their land and culture through race-conscious statutes, while still legitimizing current U.S. territorial policy, which grants the federal government plenary authority over American Samoa, demonstrates the limits of “progressive,” “egalitarian,” and race-conscious ways of thinking about the Fourteenth Amendment in the context of U.S. empire.

A final contribution of the article is to illuminate an unexplored history of a theory of colorblind constitutionalism in the years leading up to Brown versus Board of Education (1954)Footnote ²⁶ and before affirmative action policies came to dominate equal protection jurisprudence in the 1970s. The legal history of citizenship in American Samoa in the immediate years after WWII illuminates how the Court’s decisions in Buchanan and Shelley influenced how the Fourteenth Amendment was interpreted and understood by U.S. naval and Samoan leaders in a colorblind manner decades before legal challenges to race-conscious affirmative action policies in higher education and the workforce in the 1970s and 1980s helped to shape contemporary rulings and understandings of equal protection jurisprudence.Footnote ²⁷

The article proceeds as follows. The next section examines some of the scholarly literature and Court precedents on the history and meaning of the Fourteenth Amendment, especially the Equal Protection Clause, its jurisprudence, and what this article contributes to this literature. The final section first explores the history of U.S. imperialism in American Samoa and then analyzes hearings held in 1949 that focused on whether Congress should pass an organic act that would extend citizenship, equal protection, or due process protections to American Samoa. These hearings in 1949 help explain why Congress has not passed an organic act for American Samoa and why Samoans remain “non-citizens nationals” adding to scholarship on the history of U.S. citizenship in American Samoa.Footnote ²⁸

Fourteenth Amendment Jurisprudence

Various legal scholars, historians, and justices have offered race-conscious understandings and interpretations of the Fourteenth Amendment rooted in anti-subordination principles and values. Proponents of this view argue that the Fourteenth Amendment, along with the ratification of the other Reconstruction Amendments,Footnote ²⁹ which ended slavery and prohibited racial discrimination in voting, were influenced by the history of slavery as an institution in the United States and the abolitionist movements in the antebellum period. For those who emphasize anti-subordination principles, the Fourteenth Amendment was designed to dismantle racial caste and pursue racial justice with the goal of ameliorating, taking into account, and redressing the long history of anti-Black racism in the United States, with a particular focus on the descendants of slavery. Thus, for these scholars, the main purpose of the Fourteenth Amendment and the Reconstruction Amendments generally is to counter the history of slavery, white supremacy, racial caste, and anti-Black racism in the United States, which they believe should allow for race-conscious policies, regulations, and laws.Footnote ³⁰

This interpretation of the Fourteenth Amendment emphasizes the difference between racial classifications and designations that are designed to demonstrate the inferiority of Black people when compared to white peopleFootnote ³¹ or those that continue to subjugate Black peopleFootnote ³² and those policies that make racial distinctions that are meant to be remedial of the long history of white supremacy in the United States. For these scholars, race-conscious laws and policies that are not rooted in white supremacy or Black degradation are not inherently unconstitutional. This way of interpreting the Fourteenth Amendment emphasizes that the purpose and context of any racial classification matters, meaning that a race-conscious policy designed to mitigate white domination in U.S. society that is rooted in anti-subordination principles could be constitutional.

Thus, for scholars who interpret the Fourteenth Amendment through an anti-subordination principle, there is a difference between laws and policies that use racial distinctions for remedial purposes, with the intent to end “social, economic, and political advantages that whites hold over other Americans,”Footnote ³³ and those that are designed to continue to oppress and subordinate Black people or signal the superiority of the white race compared to all others. In sum, an interpretation of the Fourteenth Amendment based on anti-subordination principles argues that there is a continuing need for race-conscious policies designed to dismantle racial caste and the long history of state-sponsored white supremacy, domination, and exclusion of Black people in the United States.

The Fourteenth Amendment has also been interpreted by justices, legal scholars, and ordinary citizens in racially regressive ways that help perpetuate systems and structures of white supremacy and racial inequality.Footnote ³⁴ The most influential way of interpreting the Constitution in a manner that maintains white racial domination in U.S. society is through a colorblind approach to thinking about the Fourteenth Amendment and the Equal Protection Clause. The historical origins of a colorblind interpretation of the Fourteenth Amendment come from Justice John Marshall Harlan’s lone dissent in Plessy versus Ferguson (1896), in which he wrote that the “Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law.”Footnote ³⁵ Scholars, judges, and justices usually avoid highlighting the passages just before these influential sentences, however, in which Harlan argues that a colorblind approach to the Constitution supports white supremacy and will allow white people to maintain their legitimate dominance in U.S. society. Harlan argues that “The white race deems itself to be the dominant race in this country. And so it is, in prestige, in achievements, in education, in wealth, and in power. So, I doubt not, it will continue to be for all time, if it remains true to its great heritage and holds fast to the principles of constitutional liberty.”Footnote ³⁶

Harlan was responding to Justice Henry Billings Brown’s majority opinion in Plessy, which had constitutionally legitimated white supremacy in the form of state-sanctioned Jim Crow segregation.Footnote ³⁷ For contemporary justices who understand the Constitution to require colorblindness after the ratification of the Fourteenth Amendment, any racial classification is unconstitutional unless it can meet “strict scrutiny,” i.e., the law or policy can demonstrate a compelling state interest and is narrowly tailored.Footnote ³⁸ While this colorblind way of thinking about the Constitution entered its modern form post-Bakke in debates over affirmative action in higher education and the workforce, this article contributes to this history of colorblind constitutionalism by highlighting debates over the meaning of the Fourteenth Amendment and Equal Protection Clause decades before the 1970s.

This way of thinking about Fourteenth Amendment jurisprudence is succinctly captured by Chief Justice John Roberts’ majority opinion in Parents Involved in which he argued that “[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”Footnote ³⁹ Another example of a colorblind interpretation of the Fourteenth Amendment by a justice is Justice Clarence Thomas, who wrote in his concurrence in Students for Fair Admissions that “…all forms of discrimination based on race – including so-called affirmative action – are prohibited under the Constitution.”Footnote ⁴⁰

Finally, recent historical examinations of the Fourteenth Amendment have demonstrated its complexity, contradictions, and inherent ambiguity. Lea VanderVelde argues that some Republican members of Congress believed that the Fourteenth Amendment should be guided by an anti-subordination principle, especially thinking about the relationship between employers and laborers.Footnote ⁴¹ Christopher Schmidt demonstrates that the NAACP’s brief and argument to the Court in Brown versus Board of Education (1954)Footnote ⁴² emphasized “that the aspirations of the most egalitarian voices of the day deserve special weight in assessing the meaning of the Reconstruction amendments,” urging the Court to adopt a race-conscious, anti-subordination understanding of the Fourteenth Amendment.Footnote ⁴³ While this interpretation was not adopted in the Warren Court’s decision in Brown, it became highly influential for legal scholars and historians.Footnote ⁴⁴ As Schmidt explains, this race-conscious way of thinking about the Fourteenth Amendment “center[s] attention on the abolitionists and Radical Republicans who were the most egalitarian voices of the period and locat[es] the meaning of the Fourteenth Amendment…in their words and work.”Footnote ⁴⁵

Thus, any attempt to understand the history, original meaning, and intent of the Fourteenth Amendment will lead to complicated and unclear answers, as with all forms of constitutional interpretation and analysis.Footnote ⁴⁶ For the purposes of this article, I illuminate how a colorblind understanding of the Fourteenth Amendment, and the UN UDHR, were used by the U.S. military to maintain control over American Samoa and legitimate U.S. empire in the Pacific through an ideology of “preservationist paternalism.”Footnote ⁴⁷ After the Court’s ruling in Shelley and the passage of the UDHR, U.S. naval and Samoan leaders expressed their concerns to U.S. lawmakers that Samoans would no longer be able to protect their culture through race-based land restrictions if Congress extended citizenship to American Samoa or passed an organic act that included an equal protection clause and a due process clause. Members of Congress, however, argued that Samoans would be able to maintain restrictions on land based on race if they became U.S. citizens or were governed by an organic act that included these clauses. U.S. lawmakers based their argument on the ambiguous legal doctrine set in the Insular Cases and precedents that followed in other unincorporated territories. Samoans countered these claims by highlighting the unsettled nature of constitutional law based on the role of the Court in interpreting the Constitution and the possibility of a majority of justices overturning these precedents in future cases.

This legal history highlights how a colorblind interpretation of the Fourteenth Amendment, decades before debates over the constitutionality of race-conscious policies in higher education and the workforce, influenced U.S. policy in American Samoa and helps explain why Congress has still not passed an organic act extending citizenship to Samoans. More broadly, this article illuminates how various actors interpreting the Constitution and structure of the U.S. political system, in debates over the meaning of citizenship, the Fourteenth Amendment, and the Court’s decisions in the Insular Cases, have shaped the governing systems and structure of the U.S. empire throughout its unincorporated territories.

History of U.S. Imperialism in American Samoa

The islands of Samoa and its people have been subjected to Western colonial forces since the 18^th century. The United States became especially interested in establishing a military presence in Samoa in the late 19^th Century, reflecting the ideological influences and military interests that were dominant in the decades after the Civil War.Footnote ⁴⁸ With the collapse of Reconstruction by the mid-1870s, there was a national desire for reconciliation between the North and the South and widespread support for the United States to join other European states as a global empire. U.S. policymakers and military leaders believed that the United States needed to establish military bases in the Pacific in order to establish the United States as a global empire and to expand the U.S. economy and capitalism through access to Asian markets. Military leaders in this time period argued for the need for global coaling stations to establish the United States as a naval empire, and were especially influenced by Alfred Mahan.Footnote ⁴⁹ This ideology of U.S. global expansionism was rooted in white supremacy and the belief in the need to spread Western Anglo-Saxon republican government for global progress against regressive forces and to inferior, “savage” groups of people.Footnote ⁵⁰ Thus, U.S. interest in American Samoa was rooted in late 19^th Century ideology of empire and naval strategy.

As previously discussed, the United States would annex American Samoa in 1899, after acquiring Puerto Rico, Guam, and the Philippines in 1898 in the aftermath of the Spanish-American War. The Court’s subsequent rulings in the Insular Cases allowed for despotic U.S. military rule in American Samoa. After the initial decisions in the Insular Cases, the United States could now exert indefinite sovereignty over its territories even if there was no intention of fully incorporating them into the U.S. polity as states. U.S. rule over American Samoa as an unincorporated territory was thus plenary, limited only by undefined fundamental rights.

Despite being governed by a military dictatorship, Samoans found ways to mobilize against, resist, and influence U.S. rule in the decades leading up to WWII. For example, Samoans withheld their labor in the production of copra and demanded that they become U.S. citizens during the Mau Movement.Footnote ⁵¹ This article focuses on the culmination of that resistance, in the immediate aftermath of WWII, when Congress was debating the passage of an organic act for American Samoa. In the aftermath of WWII, naval leaders and U.S. policymakers felt pressure to demonstrate how they were engaging in decolonization with their territories because of Cold War politics.Footnote ⁵² Based on precedents from the Insular Cases, members of Congress believed that the passage of an organic act that extended citizenship, equal protection, and due process to American Samoa could provide valuable propaganda for the United States in its ideological struggle against the Soviet Union. This is because the Insular Cases established that residents of the unincorporated territories could become U.S. citizens and be governed by equal protection or due process, but the United States could still maintain plenary authority in any territory not fully incorporated into the U.S. polity. Thus, in the early years of the Cold War, U.S. lawmakers thought that the extension of citizenship, equal protection, or due process to American Samoa could be used by the United States as propaganda to demonstrate its commitment to democracy to the global community while maintaining military rule over its unincorporated territories.

Congressional Hearings on HR 4500 (“Organic Act of American Samoa”) in 1949

In the aftermath of WWII, the U.S. naval leaders, based on Court precedent and international law, believed that the Fourteenth Amendment and the UDHR could be interpreted in a colorblind manner by the federal judiciary. These members of the U.S. military were thus opposed to the passage of an organic act that included equal protection, due process, or the extension of U.S. citizenship to American Samoa.Footnote ⁵³ Naval leaders believed that if citizenship was extended to American Samoa, Samoans would no longer be able to maintain land alienation laws that prohibited non-Samoans from owning property in the territory. These military leaders were further influenced by the Court’s decision in Shelley, which prohibited the use of racial covenants in housing contracts, and the UDHR, which established property ownership as a fundamental right and banned racial discrimination.

It is important to highlight that different racial understandings of the various people colonized by the United States after the Spanish-American War were used by U.S. military leaders and lawmakers to develop distinct policies to govern each of the U.S. territories.Footnote ⁵⁴ For example, one reason the United States enacted differing forms of territorial governments and long-term plans for the Philippines compared to American Samoa and Guam was because of how U.S. officials believed there were differences in the capacity for self-government between Filipinos and Samoans and Guamanians.Footnote ⁵⁵ Some military leaders and U.S. policymakers argued that Filipinos would eventually be capable of democratic self-governance after a period of tutelage by the U.S. territorial government after the despotic experience of Spanish colonization.Footnote ⁵⁶ However, naval leaders thought of Samoans and Guamanians as primitive and docile, not yet corrupted by modernity, and thus developed policies meant to protect American Samoa and Guam from external forces.Footnote ⁵⁷ I argue that this perspective of naval leaders, which opposed the inclusion of any equal protection guarantee in an organic for American Samoa, is an example of what Droessler terms “preservationist paternalism” within the ideology of U.S. empire. As Droessler explains,

Even before the passage of the UDHR and the Court’s ruling in Shelley, naval leaders expressed concern that the extension of citizenship or Fourteenth Amendment protections to American Samoa could threaten Samoans’ cultural autonomy. These military leaders argued that extending U.S. citizenship to American Samoa would allow for non-Samoans “to say that they were discriminated against twice instead of once”Footnote ⁵⁹ from land-based exclusions based on U.S. and Samoan citizenship. Naval leaders supported the organic act for American Samoa proposed by the Hopkins CommitteeFootnote ⁶⁰ in 1947 because it did

The Navy’s support of the Hopkins Committee’s proposal demonstrates that military leaders believed that the extension of citizenship or equal protection would threaten laws that prohibited non-Samoans from land ownership in American Samoa before the Court’s decision in Shelley and the ratification of the UDHR. After Shelley and the passage of the UDHR, the concerns naval leaders had about theories of legal colorblindness and their possible meaning for Samoan cultural autonomy were amplified.

After the ratification of the UDHR and the Court’s decision in Shelley, naval leaders continued to argue that an organic act that included the extension of U.S. citizenship, similar civil rights and liberties protections guaranteed by the Constitution’s Bill of Rights, an equal protection or due process provision would now conflict with parts of the UDHR and the Court’s Fourteenth Amendment jurisprudence. I argue that for naval and Samoan leaders, the relationship between the extension of U.S. citizenship and an organic act was intertwined. For example, an organic act that did not include the extension of U.S. citizenship but did include a bill of rights, equal protection, or due process, and vice versa, would raise the same constitutional and UDHR issues. Thus, U.S. military and Samoan leaders believed that race-based land restrictions in American Samoa could be ruled unconstitutional by the Court if any of the following were included in an organic act passed by Congress: U.S. citizenship; civil liberty protections similar to those in the U.S. Constitution’s Bill of Rights; equal protection; or due process.

This legal history illuminates that the extension of citizenship was only one of the reasons Samoans and naval leaders opposed the passage of an organic act Congress debated in 1949 (HR 4500).Footnote ⁶² Members of the U.S. military believed that since this organic act would extend citizenship to Samoans, it would create a form of “double” discrimination against non-Samoans. Naval leaders also argued that since HR 4500 included an equal protection clause and due process clause, these would allow for legal challenges rooted in colorblindness and violations of fundamental rights by non-Samoans against race-based land restrictions established by the Samoan Fono.Footnote ⁶³ For example, a memorandum naval leaders submitted to Congress in 1949 as U.S. lawmakers were considering passing an organic act for American Samoa explained that

Naval leaders also emphasized the UDHR’s fundamental right to own property and the Court’s decision in Buchanan to argue that if Congress passed an organic act with a due process clause, Samoans would no longer be able to legally prohibit non-Samoans from land ownership in American Samoa. In Buchanan, the Court banned de jure residential segregation in the form of city ordinances that prohibited Black people from purchasing homes in majority-white areas by arguing that this constituted legally impermissible state-action.Footnote ⁶⁵ The Court ruled that these local ordinances violated an individual’s fundamental right to contract and own property, rooted in the Due Process Clause of the Fourteenth Amendment, and also conflicted with equal protection principles. U.S. military leaders interpreted Buchanan with the passage of the UDHR to now mean that

I argue that this memo demonstrates how naval leaders believed that with the passage of the UDHR, an organic act that included a due process or equal protection clause made laws that prohibited non-Samoans from land-ownership in American Samoa even more vulnerable to constitutional and legal challenges. Thus, members of the U.S. military viewed equal protection, due process, and the UDHR as intertwined; for naval leaders, each was a threat to the ability of Samoans to protect their land and culture through race-based land alienation laws, not just the extension of citizenship.

In these hearings, naval leaders further explained their reasoning for why the Charter of the United Nations and the UDHR could prohibit land alienation restrictions based on race in American Samoa. They argued that

Finally, naval leaders argued that precedents from the Insular Cases establishing the protection of fundamental rights in the unincorporated territories could be interpreted by the Court to declare that race-based land restrictions in American Samoa were unconstitutional. Naval leaders explained that

This passage demonstrates the ambiguity of the meaning of fundamental rights in the unincorporated territories based on the Insular Cases. A theory of fundamental rights can help protect the rights and liberties of genuine “discrete and insular minorities,” i.e., those racial, ethnic, or religious groups that have been historically subordinated in U.S. society and have been subjected to state-sanctioned and private forms of prejudice and discrimination.Footnote ⁷⁰ However, here military leaders highlight how a fundamental right, e.g., a right to property, can also be used by non-Samoans to make arguments for a right to colonize unincorporated territory under U.S. control.

In sum, naval leaders, viewing themselves as the protectors of Samoans and their culture against Anglo-Saxon, Western, civilizing forces, argued against congressional extension of U.S. citizenship or any organic act that included equal protection or due process for American Samoa. These military leaders based their arguments on the UN Charter, the UDHR, and Court precedents, including Buchanan and Shelley. They believed that these international treaties and Court cases demonstrated that a colorblind theory of the Fourteenth Amendment and international law was now hegemonic, which would prohibit Samoans from maintaining race-based restrictions on land ownership in American Samoa. Thus, in the aftermath of WWII, military leaders thought that if Samoans were to become citizens, or were governed by equal protection or due process protections, the UN Charter, the UDHR, and the Court’s Fourteenth Amendment jurisprudence would make any form of racial classification unconstitutional and a violation of international law.

Members of Congress, however, based on their interpretation of Court doctrine set in the Insular Cases and previous governing models set in other unincorporated territories and in Federal Indian law, believed that Samoans would still be able to enforce race-based land restrictions if citizenship, equal protection, or due process were extended to American Samoa. For example, in the following dialog between members of Congress and Samoan leaders, U.S. lawmakers argued that the Territory ClauseFootnote ⁷¹ gave Congress plenary authority to govern any U.S. territories:

This passage highlights the ambiguity of Fourteenth Amendment jurisprudence in the U.S. empire. For these members of Congress, the Constitution did not prevent the “special protection”Footnote ⁷³ of land ownership and “communal organizations” in American Samoa, which suggests that certain constitutional principles (e.g., equal protection, due process, and Article IV’s requirement of a republican form of government) do not apply, at least in the same way as they would in states, in unincorporated territories. This interpretation by U.S. lawmakers further illuminates the ambiguous nature of the core holdings of the Insular Cases. While naval leaders believed that the Insular Cases could prohibit American Samoa from restricting land ownership to non-Samoans, members of Congress thought that these same precedents would allow for the Samoan Fono to continue to maintain race-based property classifications.

This passage also includes the use of Federal Indian law as a template for why members of Congress believed that Samoans would still be able to maintain race-based land restrictions if citizenship, equal protection, or due process were extended to American Samoa. However, the Court has established that there are important differences between the form of sovereignty that exists between federally recognized tribal nations and the unincorporated territories. For example, the Court has issued rulings that argue that the unincorporated territories do not enjoy the same type of “political” sovereignty that states and federally recognized tribal nations possess.Footnote ⁷⁴

For the purposes of this article, however, I highlight how in these hearings, U.S. lawmakers used Federal Indian law as another template to argue to Samoans that they would still be able to maintain race-based land restrictions after the Court’s decision in Shelley. The history of U.S. colonialism with Indigenous populations and U.S. imperialism in the unincorporated territories, however, demonstrates how the United States has used different constitutional frameworks to take control and exert power over non-white populations living in land the United States has colonized and continues to occupy.Footnote ⁷⁵

In response to members of Congress arguing that race-based land restrictions in American Samoa would remain constitutional if they enacted an organic act that included the extension of citizenship, equal protection, or due process protections, Samoan leaders demonstrated the inherent ambiguity and unsettled nature of constitutional interpretation in the U.S. political system, and the role of the Court in American politics. As an example, here is a dialog between Samoan leaders and members of Congress that focuses on the Court’s power to interpret the Constitution:

In this dialog with U.S. lawmakers, Samoan leaders highlighted the unsettled nature of constitutional interpretation in American politics. Members of Congress felt confident that American Samoa would be able to maintain race-based land restrictions with the passage of an organic act that extended citizenship, equal protection, or due process based on past Court precedents set in the Insular Cases (especially the constitutional differences between incorporated and unincorporated territories) and Federal Indian law. Samoans leaders, however, emphasized that the Court ultimately has the power to determine the meaning of the Constitution, including how it applies in U.S. unincorporated territories. Samoans highlighted that the Court had established different constitutional principles and protections in the unincorporated territories, especially the extension of fundamental rights, when compared to those that apply to federally recognized tribes. These Samoan leaders thus had concerns that the extension of citizenship, or the passage of an organic act that included equal protection and due process protections, could lead to the invalidation of race-based land restrictions in American Samoa.Footnote ⁷⁷

This legal history thus expands on previous work to further explain why Congress decided against passing an organic act for American Samoa in 1949. U.S. lawmakers recognized the Cold War propaganda value of extending citizenship, equal protection, or due process to American Samoa. However, military and Samoan leaders argued that an organic act that extended any of these, and not just citizenship, threatened the cultural autonomy of American Samoa because of domestic and international trends that they believed continued to move in the direction of legal colorblindness. These different understandings of citizenship, equal protection, and due process by various political actors working within the U.S. empire trace back to ambiguous precedents established in the Insular Cases. The Court, wanting to give maximum flexibility to the federal government to rule over the territories annexed by the United States after the Spanish-American War, created an unincorporated territorial status that attempted to situate Puerto Rico, Guam, and the Philippines, and later American Samoa, both outside and within the Constitution. This liminal territorial status made it unclear whether or how constitutional rights, liberties, doctrine, and jurisprudence that applied in the United States existed in the same way in the unincorporated territories. Thus, in American Samoa, the meaning of citizenship, equal protection, and due process remains not just unsettled but ambiguous.