The contentious phrase is “native inhabitants,” which identifies the class of individuals who, under a 1996 statute, are eligible to vote in Guam’s political status plebiscite.
“The purpose of the law is to identify the group entitled to decolonization rights,” Special Assistant Attorney General Julian Aguon argued before the Ninth Circuit Court of Appeals during oral arguments at the University of Hawaii on Wednesday.
Aguon represented the government of Guam in appealing Guam District Judge Frances Tydingco-Gatewood’s March 2017 decision, which held that the Guam statute was racially discriminatory.
Under the statute, “native inhabitants” refer to Guam residents who, by virtue of the Organic Act of Guam, became U.S. citizens in 1950 and their descendants.
“The district court treats the statute as a racial one simply because it saw the word descent, ignoring the purpose of the law,” Aguon argued. “It allows the court to circumvent the discriminatory intent analysis required to invalidate racially based law.”
While arguing that the statute in question covers “a multi-racial class,” Aguon acknowledged that “Chamorro” and “native inhabitants” are commonly perceived as “the same.”
The lawsuit was filed in November 2011 by Arnold Davis after being denied a chance to register for the yet-to-be-scheduled self-determination plebiscite.
“The sole provision at issue in this case is Guam law’s definition of native inhabitants of Guam,” Aguon told the three-judge panel. “This is a temporal, spatial, histographic and geographical classification. It merely identifies a group that Congress extended U.S. citizenship to in 1950.”
But Judge Kim McLane Wardlaw noted that circumstances have since changed. “If this was 1950 and you wanted to do that. that would be a fairly explicable situation,” she said. “But now, the fact that you’re running through several generations of people suggests that your interest there is bloodline not the political status.”
Click here to listen to the oral arguments
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Attorney Lucas Townsend, who represents Davis, argued that the plebiscite was “a matter of tremendous importance to the inhabitants of Guam but limits the electorate to the Chamorros, a racially defined group.”
Aguon said the non-binding plebiscite vote is a “symbolic expression” of what Guam wants to become. Denying Guam’s attempt to decolonize, he added, “is a morally-repugnant thing.”
Guam Attorney General Barrett-Anderson said the federal judges “appeared very receptive to our legal argument that ancestry should not be viewed in Guam’s case as a pretext to racial discrimination because that was not the intent of the law, nor is there evidence to support such a contention.”
Barrett-Anderson said the court may take a few months to issue a decision. “It is clear that the legal issues in Guam’s case have far reaching constitutional impact,” she added.
Gov. Eddie Calvo said Guam cannot be content with the status quo, which he said sets limitations on the territory’s ability to govern itself and improve the island’s economy.
"For about 100 years, we have been pushing for the opportunity of the colonized people of Guam to be treated with parity,” the governor said. “Today, that fight continues with our efforts to hold a vote of self-determination to decide for ourselves the political status we would like to see Guam move toward.”
He said the Davis case impedes Guam’s effort to move the political issue forward. “We must take a stand for the rights of our people to finally have a say on our destiny,” Calvo said.
Read our full story and analysis in the November print edition of the Pacific Island Times.