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  • By Mar-Vic Cagurangan

Judge: It's not race-based. Court favors Chamorro Land Trust Act

An African-American man and his Chamorro wife built a home on a piece of property leased by the Chamorro Land Trust Commission. The man was evicted from the property after the death of his Chamorro wife, the party to the lease. The commission said he was not eligible to continue the lease on the land.

A separate complaint was previously filed by Arnold Dave Davis, an Air Force veteran and longtime Guam resident, who was denied his application for the lease of CLTC land.

Under the Chamorro Land Trust Act, only persons identified as “native Chamorros” are eligible for these leases.

These two cases prompted the U.S. government to sue the local government in September 2017 for racial discrimination and violation of Fair Housing Act.

But a federal judge ruled that the U.S. government has failed to prove at this time that the CLTC amounts to a racially discriminatory policy. The decision, just the same, raised an open-ended question about the nature of Guam’s land program.

Arnold Dave Davis

The 61-page decision released on Dec. 21 navigated the legal and historical labyrinth of land protocol from as far back as the American naval administration, in response to the U.S. government’s lawsuit that sought to stop the implementation of Guam’s CLTA. Specifically, the U.S. government argued that the Chamorro Land Trust Commission violates the Fair Housing Act by providing benefits exclusively to “native Chamorro” individuals.

“This court agrees with Guam that, at this pleading stage, the court cannot conclude that the Chamorro Land Trust operates as a race-based entity,” federal Judge Susan Oki Mollway wrote. “The record must be further developed to address the question of whether the Chamorro Land Trust operates instead as a compensatory entity that seeks to implement the return to the people of Guam of land that the United States took from them.”

The commission administers approximately 20,000 acres, or 15 percent of Guam’s total land area, which are available for up to 99-year residential leases for one-acre tracts at a cost of one dollar per year.

“Possibly, the Chamorro Land Trust includes some land that was not taken by the United States, but, if that is so, that cannot be discerned from the present record,” the court said.

The case has generated discussion about what duty the United States has delegated to Guam under the 1945 Land Transfer Act. The court noted that under the Organic Act of 1950, Congress granted Guam broad authority to control land that the United States did not reserve to itself.

“Any property not so reserved was placed under the control of the government of Guam, to be administered for the benefit of the people of Guam, and the legislature shall have authority, subject to such limitations as may be imposed upon its acts by this chapter or subsequent Act of the Congress, to legislate with respect to such property, real and personal, in such manner as it may deem desirable,” the court said.

In other words, the decision states, “the United States delegated to Guam the administration of the resettlement program relating to land taken by the United States.”

The use and disposition of public lands were regulated under Public Law 33 enacted in 1951 by of the First Guam Legislature, which identified the lands available for disposition and the people eligible for lease application. “Congress appears to have approved those sections, as Congress did not timely annul them,” the court said.

In 1975, Guam established the Chamorro Land Trust Commission through the Chamorro Land Trust Act. In relevant part, that act provided leases of “Chamorro homelands” and loans to the “native Chamorro.”

“Now, nearly a quarter century after implementation began, the United States challenges that implementation of the Chamorro Land Trust Act as racially discriminatory.”

The court said the record does not establish whether the Chamorro Land Trust Act relies on an impermissible race-based classification or a permissible political classification.

Other highlights of discussions:

  • Guam argued that “native Chamorro” is defined as a political classification, not as a race or national origin classification.

  • While the Act mentions Chamorros, the Act is for the benefit of “native Chamorros,” a category specifically defined by the Act.

  • While the original definition may have raised the specter of race- or national origin-based discrimination, the definition of “native Chamorro” was changed in 1980. The present definition refers to “any person who became a U.S. Citizen by virtue of the authority and enactment of the Organic Act of Guam or descendants of such person.”

  • The present definition does not, on its face, rely on race or national origin. The present definition is facially neutral in that respect. Of course, facially neutral criteria do not guarantee that the “native Chamorro” definition is not in fact discriminatory.

  • In the definition of “native inhabitants of Guam” that was at issue in the plebiscite case is similar to the original definition of “native Chamorro” in the Chamorro Land Trust Act. However, the conclusion in Davis that the former definition amounts to a proxy for race discrimination does not necessarily apply to the issue before this court.

  • First, the definition in the present case, which indisputably includes some non-Chamorro individuals, comes from 1980 and does not track the original definition, which was similar to the definition in Davis.

  • Second, the present case may end up turning on the history of the United States’ attempts to rehabilitate or compensate people for land taken by the United States. Davis involved no such compensatory argument. Instead, Davis turned on a voting requirement that limited the right to vote in a territory-wide election to “native inhabitants of Guam.

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