As President Joe Biden seeks to build a Cabinet that “looks like America,” one nomination stands out as especially significant: Deb Haaland’s appointment to lead the Department of the Interior (DOI), making her the first Indigenous American to serve as a Cabinet secretary. In her new role, Haaland oversees the all-important Department of Indian Affairs, the federal center of policy that supports indigenous communities. While Haaland’s voice has been essential over the last year as America and its allies continue to grapple with grotesque colonial pasts, she has only been able to do so much for her fellow Indigenous Americans who are fighting for civil and political rights. Indeed, despite gradual progress, Indigenous Americans remain one of the most disadvantaged groups in the United States, earning far less income than the national average and witnessing even less representation in government. These centuries-old problems reflect the fundamental challenge to indigenous people in America — the quest to win back tribal sovereignty. No matter the size of the court case or ferocity of the protest, Indigenous Americans are still unable to exercise anything approaching the cultural and territorial sovereignty they experienced before colonization.
Perhaps American Samoa has the answer. American Samoa is an island chain with just over 50,000 Americans, known for having the highest per-capita military participation rate of any US state or territory. But, unlike the residents of other unincorporated American territories like Puerto Rico, American Samoans are US nationals, not US citizens — something that civil rights groups have taken great issue with for years. While outsiders often denounce this policy as unfair, many American Samoans view their status as an opportunity to preserve the islands’ culture and traditions. But as a result of their noncitizen status, American Samoa is the only inhabited US territory without clear federal judicial oversight. The islands’ government has taken advantage of US indifference by creating a “hybrid system of law… unique in the world today.” The system blends a Western legal framework with the indigenous matai system of chief leadership and, critically, communal land ownership. As a result, American Samoa has managed to preserve its precolonial culture better than any other U.S. territory or tribe. Beyond the confines of the American Constitution, American Samoa is an overlooked center of policy experimentation for mainland Indigenous Americans seeking to bolster their tribal sovereignty.
American Samoa’s unique history with the US is central to its ability to protect fa’a Samoa — the Samoan way. After gaining control of the territory in 1900, the US Navy exercised authority over American Samoa on behalf of the federal government until 1951, after which the DOI took responsibility in 1956. In part because of US naval control and in part because of its 5,000 mile distance from the US mainland, foreigners never settled American Samoa unlike other US territories. Critically, American Samoa is the most homogenous territory of indigenous people in the United States: Roughly 90 percent of residents are native Samoan. This ethnic homogeneity helped enable American Samoan leaders to establish traditional political institutions in 1962 and 1967 by passing a constitution without overwhelming pushback by the United States. Two important features stand out from this constitution: the matai leadership system and communal land ownership. Matai, which translates roughly to “title,” is a hierarchical system of social ranks that is woven into American Samoan law. Matai leaders oversee control of “communal land” – land that can only be owned, sold and developed within small communities, making up a whopping 96 percent of all property in American Samoa. In other words, non-Samoans are unable to buy property according to a Western free market structure on the vast majority of the islands. Put together, American Samoans have managed to retain a remarkable level of sovereignty over their land and their political institutions despite their relationship with the United States.
How can the matai system and communal land ownership pass the rigor of the Supreme Court? The prohibition of most private land ownership by people with blood less than half Samoan seems inherently at odds with the 14th Amendment’s equal protection guarantee. Indeed, this concern has become a leading argument for those American Samoans against granting the islands’ residents US citizenship. If most American Samoans become American citizens, US courts may decide that the Equal Protection Clause applies to the territory’s laws and constitution. The American Samoan government argued as such in a brief concerning a 2012 Supreme Court case on the matter, writing “the imposition of birthright citizenship would upset a political process that ensures self-determination.” The fiery document goes so far as to contend the move would “undercut the very predicate of the fa’a Samoa.” While some residents still yearn for American citizenship, many American Samoans on the ground concur with their government; Filipo Ilaoa, a retired Marine Corps sergeant major, argued “basically, what it comes down to is freedom — the freedom to own communal land.” As one Tutuila local put it, preservation of fa’a Samoa creates a place where “we all live in harmony and look out for one another.” These American Samoans strongly reject further protection by US law because “under the guise of ‘equality,’ the judiciary would achieve what the US Navy could not: the conquest of American Samoa.”
What is tribal sovereignty, and how can American Samoa inform better policy debates around it? To the American government, tribal sovereignty is an idea as old as government itself, embedded in Article I, Section 8 of the Constitution. Broadly speaking, the federal government understands tribal sovereignty as the right for recognized tribes to exercise limited authority over economic, political, and civil processes. But for Indigenous Americans, tribal sovereignty isn’t a notion conjured by the American government — it’s something they had for centuries before colonization and have been gradually taking back ever since. Given the piecemeal nature of these legal efforts, different indigenous groups across the United States have varying interpretations of what tribal sovereignty means to them, from food to taxation to political institutions. Yet, no mainland indigenous group can fully realize any of these goals without the independence afforded to American Samoa.
American Samoa’s legal journey to preserve local culture and live without US citizenship carries important lessons for those seeking to expand tribal sovereignty on the mainland. For one, the ethnic and cultural homogeneity in American Samoa enables community leaders to assert their authority more strongly than other tribes that are more assimilated or dispersed. The fact that American Samoa is an isolated, self-contained community thousands of miles from the contiguous US allows the territory to act in ways that don’t disrupt white communities, rich in wealth and political capital. Mainland tribal sovereignty movements should be conscious of the fact that expanded authority may not reach the vast majority of indigenous people who are incorporated into America’s cities and suburbs. Thus, basic demographic constraints should temper expectations for these movements. Nevertheless, American Samoa’s success demonstrates that even limited opportunities to revive precolonial life may be worth it.
American Samoa’s experience signals to indigenous groups on the mainland that, despite its costs, keeping the US government at arm’s length best enables tribes the legal space they need to fully re-establish some sense of sovereignty. As federal and state governments grapple with economic, environmental, and energy needs, Indigenous Americans need new legislation and legal standards to keep tribal lands out of broader policy interventions. Since vague federal guidance has enabled states to limit tribal sovereignty, new federal legislation should vest broad powers in different tribes under supervision from DOI and without interference from the states. Moreover, American Samoa’s concerns over US citizenship indicates that consistent application of the Equal Protection Clause may actually inhibit freedom. As such, lawmakers and indigenous leaders should explore a constitutional amendment to create a legal process that lets members of designated tribes opt out of American citizenship, if they so wish. Though abandoning US citizenship may carry significant drawbacks, American Samoa’s success indicates that indigenous and non-indigenous policy makers must start engaging in frank cost-benefit analyses of how relinquishing certain federal protections might enable a partial restoration of pre-colonial norms.
Finally, it’s essential to point out that greater legal separation between the US government and Indigenous Americans wouldn’t mean that these Americans would stop serving or caring for their country. Despite the territory’s distance and cultural differences, American Samoans are still Americans. American Samoans are willing to fight and die for this nation at a higher rate than Rhode Islanders, Texans, or Californians despite not being legally and wholly a part of it. The islands’ differences from the rest of the union makes American Samoa more American, not less. After all, there’s nothing more American than the brave pursuit to reclaim freedom from the clutches of colonization.