ARNOLD DAVIS, on behalf of himself and all others similarly situated v. GUAM; GUAM ELECTION COMMISSION; ALICE M. TAIJERON; MARTHA C. RUTH; JOSEPH F. MESA; JOHNNY P. TAITANO; JOSHUA F. RENORIO; DONALD I. WEAKLEY; LEONARDO M. RAPADAS
No. 17-15719
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
July 29, 2019
D.C. No. 1:11-cv-00035
Before: Kim McLane Wardlaw, Marsha S. Berzon, and Johnnie B. Rawlinson, Circuit Judges. Opinion by Judge Berzon
FOR PUBLICATION
OPINION
Appeal from the United States District Court for the District of Guam
Frances Tydingco-Gatewood, Chief District Judge, Presiding
Argued and Submitted October 10, 2018
University of Hawaii Manoa
Filed July 29, 2019
SUMMARY*
Civil Rights / Fifteenth Amendment
The panel affirmed the district court‘s summary judgment in favor of plaintiff, a Guam resident, who challenged a provision of Guam‘s 2000 Plebiscite Law that restricted voting to “Native Inhabitants of Guam.”
Guam‘s 2000 Plebiscite Law provided for a “political status plebiscite” to determine the official preference of the “Native Inhabitants of Guam” regarding Guam‘s political relationship with the United States. Plaintiff alleged, among other things, that the provision of that law restricting voting to “Native Inhabitants of Guam” constituted an impermissible racial classification in violation of the
The panel first rejected Guam‘s contention that the
* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.
The panel applied Rice v. Cayetano, 528 U.S. 495 (2000), and Davis v. Commonwealth Election Comm‘n, 844 F.3d 1087 (9th Cir. 2016), which respectively invalidated laws in Hawaii and the Commonwealth of the Northern Mariana Islands limiting voting in certain elections to descendants of particular indigenous groups because those provisions employed ancestry as a proxy for race in violation of the
COUNSEL
Julian Aguon (argued), Special Assistant Attorney General; Kenneth Orcutt, Deputy Attorney General; Office of the Attorney General, Tamuning, Guam; for Defendants-Appellants.
Lucas C. Townsend (argued); Douglas R. Cox, Gibson Dunn & Crutcher LLP, Washington, D.C.; J. Christian Adams, Election Law Center PLLC, Alexandria, Virginia; Michael E. Rosman, Center for Individual Rights, Washington, D.C.; Mun Su Park, Law Offices of Park & Associates, Tamuning, Guam; for Plaintiff-Appellee.
Dayna J. Zolle, Attorney; Civil Rights Division, United States Department of Justice, Washington, D.C.; for Amicus Curiae United States.
BERZON, Circuit Judge:
Guam‘s 2000 Plebiscite Law provides for a “political status plebiscite” to determine the official preference of the “Native Inhabitants of Guam” regarding Guam‘s political relationship with the United States. Guam Pub. L. No. 25-106 (2000). Our question is whether the provisions of that law restricting voting to “Native Inhabitants of Guam” constitutes an impermissible racial classification in violation of the
Rice v. Cayetano, 528 U.S. 495 (2000), and Davis v. Commonwealth Election Comm‘n, 844 F.3d 1087 (9th Cir. 2016), respectively invalidated laws in Hawaii and the Commonwealth of the Northern Mariana Islands limiting voting in certain elections to descendants of particular indigenous groups because those provisions employed “[a]ncestry [as] a proxy for race” in violation of the
I
The factual background of this case is intertwined with the history of Guam (the “Territory“), of its indigenous people, and of its colonization. We recognize that this history, like history in general, is subject to contestation both as to exactly what happened in the past and as to the interpretation of even well-established facts. We do not attempt to settle those debates. “Our more limited role, in the posture of this particular case, is to recount events as understood by the lawmakers, thus ensuring that we accord proper appreciation to their purposes in adopting the policies and laws at issue.” Rice, 528 U.S. at 500.
Guam has long been inhabited by an indigenous people, commonly referred to as Chamorro. See William L. Wuerch & Dirk Anthony Ballendorf, Historical Dictionary of Guam and Micronesia 40–44 (The Scarecrow Press, Inc. 1994); Developments in the Law, Chapter Four: Guam and the Case for Federal Deference, 130 Harv. L. Rev. 1704, 1722 (2017). Beginning in the sixteenth century, Spain colonized Guam. Then, in 1899, after the Spanish-American war, Spain ceded Guam to the United States through Article II of the 1898 Treaty of Paris. Until 1950, Guam remained under the control of the U.S. Navy, except for a Japanese occupation from 1941 through 1944. See Guam v. Guerrero, 290 F.3d 1210, 1214 (9th Cir. 2002). In 1950, responding to petitions from Guam‘s inhabitants, Congress passed the
The Organic Act (1) designated Guam as an unincorporated territory of the United States subject to Congress‘s plenary power,
(a)(1): All inhabitants of the island of Guam on April 11, 1899, including those temporarily absent from the island on that date, who were Spanish subjects, who after that date continued to reside in Guam or other territory over which the United States exercises sovereignty, and who have taken no affirmative steps
to preserve or acquire foreign nationality[, and their children.] (a)(2): All persons born in the island of Guam who resided in Guam on April 11, 1899, including those temporarily absent from the island on that date, who after that date continued to reside in Guam or other territory over which the United States exercises sovereignty, and who have taken no affirmative steps to preserve or acquire foreign nationality[, and their children.]
(b): All persons born in the island of Guam on or after April 11, 1899 . . . Provided, That in the case of any person born before the date of enactment of [the Organic Act], he has
taken no affirmative steps to preserve or acquire foreign nationality.
According to the 1950 Census—which derived its racial categories from “that which is commonly accepted by the general public“—the Chamorro population comprised the single largest racial group in Guam at the time (45.6%). See U.S. Bureau of the Census, Census of Population: 1950, Vol. II at 54-46 tbl. 36 (1953) (“1950 Census“). The second largest racial group was White (38.5%), and the rest of the population was Filipino, Chinese, or other races. Virtually all non-Chamorro people residing in the Territory were either already U.S. citizens (99.4% of all Whites were U.S. citizens) or were born outside the jurisdiction of the United States and therefore likely not citizens by authority of the Organic Act (e.g., 94.4% of Filipinos were non-citizens). As of 1950, 98.6% of all non-citizens in Guam were Chamorro. Id. at 54-49 tbl. 38.
The citizenship provisions of the Organic Act were in force for less than two years. In 1952, Congress enacted the
In the decades following passage of the Organic Act, some of Guam‘s inhabitants continued to advocate for more political autonomy. Those efforts eventually resulted in, among other things, “An Act to Establish the Chamorro Registry,” enacted by the Guam legislature in 1996. Guam Pub. L. No. 23-130, § 1 (codified as amended at 3 Guam Code Ann. §§ 18001–31) (“Registry Act“), repealed in part by Guam Pub. L. No. 25-106 (2000). The Registry Act created a registry of “Chamorro individuals, families, and their descendants.” Id. § 1. It referred to the “Chamorro” as the “indigenous people of Guam” who possess “a distinct language and culture.” Id.3 The Act‘s stated purpose was
for Commonwealth, of the identity of the indigenous Chamorro people of Guam, and of the role that Chamorros and succeeding generations play in the island‘s cultural survival and in Guam‘s political evolution towards self-government.” Id.
One year later, the Guam legislature established the “Commission on Decolonization for the Implementation and Exercise of Chamorro Self-Determination,” Guam Pub. L. No. 23-147 (1997) (codified at 1 Guam Code Ann. §§ 2101–15) (“1997 Plebiscite Law“), repealed in part by Guam Pub. L. No. 25-106 (2000). The Legislature established the Commission on Decolonization “in the interest of the will of the people of Guam, desirous to end colonial discrimination and address long-standing injustice of [the Chamorro] people.” Id. § 1. The purpose of the Commission on Decolonization was to “ascertain the desire of the Chamorro people of Guam as to their future political relationship with the United States.” Id. § 5. It was charged with writing position papers on the political status options for Guam and with conducting a public information campaign based on those papers. Id. §§ 6–9. The 1997 Plebiscite Law also called for a “political status plebiscite” during the next primary election, in which voters would be asked:
In recognition of your right to self-determination, which of the following political status options do you favor?
1. Independence
2. Free Association
3. Statehood
Id. § 10. Voting in the plebiscite was to be limited to “Chamorro People,” defined as “[a]ll inhabitants of Guam in 1898 and their descendants who have taken no affirmative steps to preserve or acquire foreign nationality.” Id. §§ 2(b), 10. The Commission on Decolonization was then directed to “transmit [the results of the plebiscite] to the President and Congress of the United States and the Secretary General of the United Nations.” Id. § 5.
Before the planned date of the self-determination plebiscite, the Supreme Court in Rice v. Cayetano invalidated a Hawaii law restricting the right to vote in certain elections to “Hawaiians,” defined as the descendants of people inhabiting the Hawaiian Islands in 1778. 528 U.S. at 499. A month after Rice was decided, the Guam legislature enacted the law at issue in this case. Guam Pub. L. No. 25-106 (2000) (codified at 3 Guam Code Ann. §§ 21000–31, 1 Guam Code Ann. §§ 2101–15) (“2000 Plebiscite Law“).
The 2000 Plebiscite Law contains several interrelated provisions: First, it leaves the Registry Act intact and creates a separate “Guam Decolonization Registry” in which those voters qualified for the new political status plebiscite would be listed.
qualified to register, and therefore to vote, in the plebiscite must be “Native Inhabitants of Guam,” defined as “those persons who became U.S. Citizens by virtue of the authority and enactment of the 1950 Organic Act of Guam and descendants of those persons.” Id. § 21001(e).
Second, the 2000 Plebiscite Law retains the Commission on Decolonization but amends portions of the 1997 Plebiscite Law to replace all references to “Chamorro” with “Native Inhabitants of Guam.” 1 Guam Code Ann. §§ 2101–02, 2104–05, 2110. As revised, the law establishing a new plebiscite provides:
The general purpose of the Commission on Decolonization shall be to ascertain the intent of the Native Inhabitants of Guam as to their future political relationship with the United States of America. Once the intent of the Native Inhabitants of Guam is ascertained, the Commission shall promptly transmit that desire to the President and the Congress of
the United States of America, and to the Secretary General of the United Nations.
Id. § 2105.
Finally, the 2000 Plebiscite Law states that “[t]he intent of [the law] shall not be construed nor implemented by the government officials effectuating its provisions to be race based, but founded upon the classifications of persons as defined by the U.S. Congress in the 1950 Organic Act of Guam.” 3 Guam Code Ann. § 21000. Rather, the intent of the law is “to permit the native inhabitants of Guam, as defined by the U.S. Congress’ 1950 Organic Act of Guam to exercise the inalienable right to self-determination of their political relationship with the United States of America,” as that “right has never been afforded.” Id.
One subsequent amendment to the plebiscite relevant to this case followed. In 2010, the Guam legislature passed a law providing that individuals who received or had been preapproved for a Chamorro Land Trust Commission (“CLTC“) property lease would be automatically registered in the Guam Decolonization Registry. Guam Pub. L. No. 30-102, § 21002.1 (codified at 3 Guam Code Ann. § 21002.1). The CLTC was created in 1975 to administer leases for lands that the United States had seized from Guam inhabitants during and after World War II and had later returned to the Guam government. See Guam Pub. L. 12-226 (codified as amended at 21 Guam Code Ann. §§ 75101–75125). Persons eligible to receive CLTC leases must be “Native Chamorros,” defined as “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.” 21 Guam Code Ann. §§ 75101(d), 75107(a).
Arnold Davis, a non-Chamorro resident of Guam, sought to register for the Guam Decolonization Registry and thereby to qualify as a voter in the plebiscite. He was denied registration because he did not meet the definition of “Native Inhabitant of Guam.” Davis filed suit in 2011, challenging the 2000 Plebiscite Law on grounds that it violated the Fourteenth and Fifteenth Amendments of the Constitution, the Voting Rights Act of 1965, and the Organic Act.
At the time the suit was filed, the plebiscite had not yet occurred, and no date was set for it to take place. Davis v. Guam, Civil Case No. 11-00035, 2013 WL 204697, *2-3 (D. Guam 2013) (”Davis I“). Relying on the uncertain timing of the plebiscite, the district court initially dismissed the case for lack of standing and ripeness. Id. at *9. We reversed that dismissal on appeal, holding that Davis‘s alleged unequal treatment was a sufficient injury to establish standing and that his claim was ripe because he adequately alleged that he was “currently being denied equal treatment under Guam law.” Davis v. Guam, 785 F.3d 1311, 1315-16 (9th Cir. 2015) (”Davis II“).
After remand to the district court the parties filed cross-motions for summary judgment. The district court granted Davis‘s motion for summary judgment and permanently enjoined Guam from conducting a plebiscite restricting voters to Native Inhabitants of Guam. Davis v. Guam, No. CV 11-00035, 2017 WL 930825, at *1 (D. Guam 2017) (”Davis III“).
The district court concluded, first, that the plebiscite was an election for Fifteenth Amendment purposes because the result of the vote would decide a public issue. Id. at *11. Next, the court determined that although “Native Inhabitants of Guam” is not an explicit racial classification, the history and structure of the 2000 Plebiscite Law reveal that “the very object of the statutory definition in question here . . . is to treat the Chamorro people as a ‘distinct people.‘” Id. at *8 (quoting Rice, 528 U.S. at 515). The 2000 Plebiscite Law therefore used “ancestry as a proxy for race,” the district court held, in violation of the
The court also decided that the 2000 Plebiscite Law violated the Equal Protection Clause of the
This appeal followed. “We review a district court‘s decision on cross motions for summary judgment de novo.” Commonwealth Election Comm‘n, 844 F.3d at 1091.
II
Congress has provided that the
Guam argues that the
We have no need here to define the precise contours of what it means to “decide” a “public issue” under the
First, the issue the 2000 Plebiscite Law would decide is public in nature. A basic premise of our representative democracy is “the critical postulate that sovereignty is vested in the people.” U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 794 (1995). Because the government “derives all its powers directly or indirectly from the great body of the people,” The Federalist No. 39, at 241 (James Madison) (Clinton Rossiter ed., 1961), the government necessarily exercises authority on behalf of the public when it acts. In that sense, its actions are of public concern.
The Supreme Court acknowledged this foundational principle in Terry v. Adams, which addressed a related question—whether an election held by a private organization constituted state action for purposes of the
A plurality of the Court explained this conclusion as follows: “Clearly the [Fifteenth] Amendment includes any election in which public issues are decided or public officials selected. Just as clearly the Amendment excludes social or business clubs.” Id. at 468–69. Decades later, the Rice majority adopted the formulation of the Terry plurality—that the
In this case, the 2000 Plebiscite Law prescribes that the Commission on Decolonization—a governmental body—will make an official transmission to Congress, the President, and the United Nations, and the results of the plebiscite will determine the content of the message transmitted. See 1 Guam Code Ann. § 2105. What a governmental body will communicate to other governmental entities is assuredly a “public issue“—a matter of “governmental polic[y].” Terry, 345 U.S. at 467–68.
Second, the election called for by the 2000 Plebiscite Law commits Guam to a particular course of action: A governmental commission with prescribed duties would be bound to transmit the result of the plebiscite to the federal government and to the United Nations. By requiring the transmission of the plebiscite results, the 2000 Plebiscite Law mandates that the Commission on Decolonization take a public stance in support of the result. 3 Guam Ann. Code § 21000 (“It is the purpose of this legislation to seek the desires to those peoples who were given citizenship in 1950 and to use this knowledge to further petition Congress and other entities to achieve the stated goals.“). So, regardless of whether the result of the plebiscite ultimately affects the political status of Guam, the plebiscite will “decide” a public issue—what position a governmental entity will advocate before domestic and international bodies.
The plebiscite therefore will both concern a “public issue“—Guam‘s official communication with other governmental bodies—and “decide” it, in that it will commit a governmental body to communicate the position determined by the plebiscite. Given these two features, the election is, under Rice, subject to the
Were this plebiscite not covered by the
parties in several states employ nonbinding primaries, in which primary voters may express their preference for a candidate but the
We hold that Guam‘s 2000 Plebiscite Law is subject to the requirements of the
III
We turn to the core of the
The
Moreover, the
Determining whether a law discriminates “on account of race” is not, however, always straightforward. Voting qualifications that, by their very terms, draw distinctions based on racial characteristics are of course prohibited. See Nixon v. Herndon, 273 U.S. 536 (1927); South Carolina v. Katzenbach, 383 U.S. 301, 325 (1966) (collecting cases).
But “[t]he (Fifteenth) Amendment nullifies sophisticated as well as simple-minded modes of discrimination.” Gomillion v. Lightfoot, 364 U.S. 339, 342 (1960) (quoting Lane v. Wilson, 307 U.S. 268, 275 (1939)). So, in addition to facial racial distinctions, classifications that are race neutral on their face but racial by design or application violate the
The well-established hallmarks of such discrimination for constitutional purposes are discriminatory intent, see Reno v. Bossier Par. Sch. Bd., 520 U.S. 471, 481-82 (1997); City of Mobile v. Bolden, 446 U.S. 55, 62-63 (1980) (plurality opinion), and discriminatory implementation, see Lassiter v. Northampton Cty. Bd. of Elections, 360 U.S. 45, 53 (1959) (“Of course a literacy test, fair on its face, may be employed to perpetuate that discrimination which the
One category of facially neutral restrictions that runs afoul of the
Ancestry can be a proxy for race. It is that proxy here. . . . For centuries Hawaii was isolated from migration. The inhabitants shared common physical characteristics, and by 1778 they had a common culture. Indeed, the drafters of the statutory definition in question emphasized the “unique culture of the ancient Hawaiians” in explaining their work. The provisions before us reflect the State‘s effort to preserve that commonality of people to the present day. In the interpretation of the Reconstruction era civil rights laws we have observed that “racial discrimination” is that which singles out “identifiable classes of persons . . . solely because of their ancestry or ethnic characteristics.” Saint Francis Coll. v. Al-Khazraji, 481 U.S. 604, 613 (1987). The very object of the statutory definition in question and of its earlier congressional counterpart in the
Hawaiian Homes Commission Act is to treat the early Hawaiians as a distinct people, commanding their own recognition and respect. The State, in enacting the legislation before us, has used ancestry as a racial definition and for a racial purpose.
Id. at 514-15 (second alteration in original) (citations omitted).
To confirm its conclusion, Rice looked to the history of the “Hawaiian” definition at issue and determined that previously proposed versions of the qualification had expressly referred to “Hawaiians” as a race. Id. at 515-516. The Court concluded that removal of the “race” reference did not change the classification of individuals allowed to vote in the election. The voter qualification therefore remained
A
Our first inquiry is whether, as Davis maintains, Rice held all classifications based on ancestry to be impermissible proxies for race. It did not.
The Supreme Court selected its words carefully when it struck down the voting restrictions at issue in Rice. It stated that “[a]ncestry can be a proxy for race” in the context of the
The Court‘s determination that the challenged voting qualification‘s use of ancestry “is that proxy here,” id., rested on the historical and legislative context of the particular classification at issue, not on the categorical principle that all ancestral classifications are racial classifications. The Court focused specifically on the fact that in 1778, the individuals inhabiting the Hawaiian Islands were a “distinct people” with common physical characteristics and shared culture. Id. at 515. Limiting the franchise to descendants of that distinct people, the Court reasoned, singled out individuals for special treatment based on their “ethnic characteristics and cultural traditions.” Id. at 515, 517. Rice buttressed that conclusion with evidence from the legislative history of the challenged statute, which referred to “Hawaiians” as a “race.” Id. at 516. In other words, the Court recognized that ancestral tracing can be a characteristic of a racial classification, but is not itself always sufficient to identify such a classification. And it concluded that the ancestral classification at issue was problematic because it operated as a race-based voting restriction. If the Court had meant to suggest that all classifications based on ancestry were impermissible, it would have had no need to examine the unique history of the descendants allowed to vote under the challenged law.
Davis contends that one sentence in Rice indicates otherwise—that all ancestry classifications are impermissible racial classifications: “‘[R]acial discrimination’ is that which singles out ‘identifiable classes of persons . . . solely because of their ancestry or ethnic characteristics.‘” Id. at 515 (second alteration in original) (quoting Saint Francis Coll., 481 U.S. at 613). But that interpretation wrenches the sentence in Rice from its context. Rice quoted Saint Francis Coll. to support its conclusion that the specific classification at issue in Rice was a racial classification.8 After an exhaustive
B
Rice did not go on to explain further the connection between ancestry and race, or to explain what it meant by “ethnic characteristics and cultural traditions.” Id. And modern courts have generally resisted defining with precision the legal concept of race and more specifically, the relationship between ancestry and the legal concept of race.
Racial categories were once thought to be grounded in biological fact, but shifting understandings of which groups constitute distinct races throughout history reveal such categories to be “social construct[s],” the boundaries of which are subject to contestation and revision. Ho ex rel. Ho v. S.F. Unified Sch. Dist., 147 F.3d 854, 863 (9th Cir. 1998); see also Saint Francis Coll., 481 U.S. at 610 n.4; United States v. Nelson, 277 F.3d 164, 176 n.12 (2d Cir. 2002).9 Still, as a legal concept, a racial category is generally understood as a group, designated by itself or others, as socially distinct based on perceived common physical, ethnic, or cultural characteristics. So, for example, Abdullahi v. Prada USA Corp. stated that “[a] racial group as the term is generally used in the United States today is a group having a common ancestry and distinct physical traits,” 520 F.3d 710, 712 (7th Cir. 2008), a definition also reflected in a federal statute outlawing genocide. See
Just as race is a difficult concept to define, so is ancestry‘s precise relationship to race. Ancestry identifies individuals by biological descent. See Ancestry, Black‘s Law Dictionary (10th ed. 2014) (“A line of descent; collectively, a person‘s forebears; lineage.“); Ancestor, Oxford English Dictionary (2d ed. 1989) (“One from whom a person is descended, either by the father or mother; a progenitor, a forefather.“). Racial categories often incorporate biological descent, as the mechanism through which present day individuals viewed as a distinct group are thought to be connected to an earlier set of individuals with identifiable physical, ethnic, or cultural characteristics. For example, state laws mandating the enslavement and later segregation and subjugation of African Americans identified them by the percentage of blood they possessed from African American ancestors. See, e.g., Loving v. Virginia, 388 U.S. 1, 5 n.4 (1967); Plessy v. Ferguson, 163 U.S. 537, 552 (1896); Neil Gotanda, A Critique of “Our Constitution Is Color-Blind,” 44 Stan. L. Rev. 1, 24 n.94 (1991). Until 1952, Congress imposed racial restrictions on who could be naturalized as citizens. See
But ancestry and race are not identical legal concepts. State and federal laws are replete with provisions that target individuals based on biological descent without reflecting racial classifications. These include laws of intestate succession, see, e.g.,
Moreover, the Supreme Court has squarely rejected any categorical equivalence between ancestry and racial categorization. Morton v. Mancari, 417 U.S. 535 (1974), upheld a Bureau of Indian Affairs hiring preference for “Indians,” defined as an individual possessing “one-fourth or more degree Indian blood and be a member of a Federally-recognized tribe.” 417 U.S. at 553 n.24. Although the hiring preference classified individuals based on biological ancestry, the Supreme Court concluded that the classification was “political rather than racial in nature.” Id. Mancari determined that the hiring preference treated “Indians not as a discrete racial group, but, rather, as members of quasi-sovereign tribal entities,” stressing the “unique legal status of Indian tribes under federal law and the plenary power of Congress, based on a history of treaties and the assumption of a ‘guardian-ward’ status, to legislate on behalf of federally recognized Indian tribes.” Id. at 551, 554.
Since Mancari, the Supreme Court and our court have reaffirmed ancestral classifications related to American Indians without suggesting that they constitute racial classifications. See Del. Tribal Bus. Comm. v. Weeks, 430 U.S. 73, 79 n.13, 89 (1977); United States v. Zepeda, 792 F.3d 1103, 1110 (9th Cir. 2015) (en banc); see also Doe v. Kamehameha Schs./Bernice Pauahi Bishop Estate, 470 F.3d 827, 851-52 (9th Cir. 2006) (en banc) (Fletcher, J., concurring) (listing federal laws concerning Indians that rely on ancestry); Krakoff, supra, at 501 (explaining that American Indian tribal status “assumes ancestral ties to peoples who preceded European (and then American) arrival“). This well-settled law regarding classifications of American Indians confirms that not all ancestral classifications are racial ones.
In sum, biological descent or ancestry is often a feature of a race classification, but an ancestral classification is not always a racial one.
C
That ancestry is not always a proxy for race does not mean it never is.
We have previously outlined the contours of proxy discrimination when addressing statutory discrimination claims:
Proxy discrimination is a form of facial discrimination. It arises when the defendant enacts a law or policy that treats individuals differently on the basis of seemingly neutral criteria that are so closely associated with the disfavored group that discrimination on the basis of such criteria is, constructively, facial discrimination against the disfavored group. For example, discriminating
against individuals with gray hair is a proxy for age discrimination because “the ‘fit’ between age and gray hair is sufficiently close.” McWright v. Alexander, 982 F.2d 222, 228 (7th Cir. 1992).
Pac. Shores Props., LLC v. City of Newport Beach, 730 F.3d 1142, 1160 n.23 (9th Cir. 2013). The Supreme Court has recognized that “[a]ncestry can be a proxy for race” in the
Notably, proxy discrimination does not require an exact match between the proxy category and the racial classification for which it is a proxy. “Simply because a class . . . does not include all members of the race does not suffice to make the classification race neutral.” Rice, 528 U.S. at 516-17. In Rice the classification at issue—though not explicitly racial—was so closely intertwined with race, given the characteristics of Hawaii‘s population in 1778, that the law was readily understood to be discriminatory in “purpose and operation.” Id. at 516. At its core, Rice inferred the racial purpose of the Hawaii law from the terms of the classification combined with historical facts, concluding that Hawaii‘s racial voter qualification was “neither subtle nor indirect.” Id. at 514.
Relying on Rice, we held in Davis v. Commonwealth Election Comm‘n that an ancestry-based voting restriction in the Commonwealth of the Northern Mariana Islands (“CNMI“) was a proxy for race discrimination in violation of the
D
Like the classifications invalidated in Rice and Commonwealth Election Commission, the classification “Native Inhabitants of Guam” in this case serves as a proxy for race, in violation of the
- Individuals born before April 11, 1899, who lived in Guam on that date as Spanish subjects, and who continued to reside in some part of the U.S. thereafter.
- Individuals born in Guam before April 11, 1899, who lived in Guam on that date, and who continued to reside in some part of the U.S. thereafter.
- Individuals born in Guam on or after April 11, 1899.
The 2000 Plebiscite Law‘s immediate predecessors were not shy about using an express racial classification. The Registry Act established an official list of “Chamorro” people, defined according to the Organic Act, as inhabitants of Guam in 1899 who were Spanish subjects or were born in Guam before 1899, and the descendants of those individuals.
The Registry Act formally tied the definition of Chamorro to the race-neutral language of the Organic Act. But the enactment as a whole rested on the concept that
The 1997 Plebiscite Law, which the 2000 Plebiscite Law built directly upon, similarly employed express racial classifications. The 1997 law called for a plebiscite limited to the “Chamorro people of Guam,” defined as “[a]ll inhabitants of Guam in 1898 and their descendants who have taken no affirmative steps to preserve or acquire foreign nationality.”
Additionally, the Guam legislature has long defined the term “Native Chamorro” for purposes of the Chamorro Land Trust Commission to include “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.”
Several similarities between the 2000 Plebiscite Law and its predecessors reveal that “Native Inhabitants of Guam” is a proxy for “Chamorro,” and therefore for a racial classification. First, the 2000 Plebiscite Law‘s definition of “Native Inhabitants of Guam” is nearly indistinguishable from the definitions of “Chamorro” in the Registry Act, the 1997 Plebiscite Law, and the CLTC. “Native Inhabitants of Guam” incorporates all the citizenship provisions of the Organic Act, as does the definition of “Native Chamorro” in the CLTC; the Registry Act and the 1997 Plebiscite Law mirror the first two sections of those provisions. Compare
Second, the 2000 Plebiscite Law maintains nearly identically the features of the facially race-based Registry Act and the 1997 Plebiscite Law. This continuity confirms the 2000 Plebiscite Law‘s changes to the Chamorro classification were semantic and cosmetic, not substantive.16
The 2000 Plebiscite Law creates a “Guam Decolonization Registry” that mirrors the earlier Registry Act. The new registry is structured similarly to the earlier one, including requiring an affidavit to register, compare
The 2000 Plebiscite Law also amends the 1997 Plebiscite Law to eliminate references to “Chamorro” people, but otherwise retains the same features. See
Finally, the timing of the 2000 Plebiscite Law‘s enactment confirms its racial basis. The 2000 Plebiscite Law was enacted on March 24, 2000, just one month after Rice was decided. In Rice, Hawaii had revised its definition of “Hawaiian” from an earlier version, by replacing the word “races” with “peoples.” Id. at 515-16. The Supreme Court concluded based on the drafters’ own admission that “any changes to the language were at most cosmetic.” Id. at 516. Although we have no similar admission, the same is true here. After Rice, Guam‘s swift reenactment of essentially the same election law—albeit with a change in terms—indicates that the Guam legislature‘s intent was to apply cosmetic changes rather than substantively to alter the voting restrictions for the plebiscite.
Guam‘s primary argument to the contrary is that “Native Inhabitants of Guam” is not a racial category but a political one referring to “a colonized people with a unique political relationship to the United States because their U.S. citizenship was granted by the Guam Organic Act.” It attempts to distinguish this case from Rice on the ground that the voter qualification here is tethered not to presence in the Territory at a particular date but to the passage of a specific law—the Organic Act—which altered the legal status of the group to which the ancestral inquiry is linked.
But indirect or tiered racial classifications, tethered to prior, race-based legislative enactments, are subject to the same
Nor is Guam‘s argument that the classification here is political supported by the Supreme Court‘s recognition that classifications based on American Indian ancestry are political in nature. Laws employing the American Indian classification targeted individuals “not as a discrete racial group, but, rather, as members of quasi-sovereign tribal entities.” Mancari, 417 U.S. at 554; see also Rice, 528 U.S. at 518-20; United States v. Antelope, 430 U.S. 641 (1977).17 Both the Supreme Court and we have rejected the application of Mancari for
Here, the parallels between the 2000 Plebiscite Law and previously enacted statutes expressly employing racial classifications are too glaring to brush aside. The near identity of the definitions for “Native Inhabitants of Guam” and “Chamorro,” the lack of other substantive changes, and the timing of the 2000 Plebiscite Law‘s enactment all indicate that the
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Concluding that the 2000 Plebiscite Law employs a proxy for race is not to equate Guam‘s stated purpose of “providing dignity in . . . allowing a starting point for a process of self-determination” to its native inhabitants with the racial animus motivating other laws that run afoul of the
IV
We hold that Guam‘s limitation on the right to vote in its political status plebiscite to “Native Inhabitants of Guam” violates the
Notes
Registry Act § 20001(a).(a) Chamorro means those persons defined by the U.S. Congress in Section IV of the Organic Act of Guam . . . and their descendants:
(1) All inhabitants of the island of Guam on April 11, 1899, including those temporarily absent from the island on that date, who were Spanish subjects, who after that date continued to reside in Guam or other territory over which the United States exercises sovereignty, and have taken no affirmative steps to preserve or acquire foreign nationality; and
(2) All persons born in the island of Guam, who resided in Guam on April 11, 1899, including those temporarily absent from the island on that date, who after that date continued to reside in Guam or other territory over which the United States exercises sovereignty, and who have taken no affirmative steps to preserve or acquire foreign nationality.
(a) ‘Chamorro’ shall mean:
(1) all inhabitants of the Island of Guam on April 11, 1899, including those temporarily absent from the Island on that date and who were Spanish subjects; and
2000 Plebiscite Law § 12.(2) all persons born on the Island of Guam prior to 1800, and their descendants, who resided on Guam on April 11, 1899, including those temporarily absent from the Island on that date, and their descendants;
(i) ’descendant’ means a person who has proceeded by birth, such as a child or grandchild, to the remotest degree, from any ‘Chamorro’ as defined above, and who is considered placed in a line of succession from such ancestor where such succession is by virtue of blood relations.
Saint Francis Coll. does not suggest that all ancestral classifications are racial ones either. That case addressed whether discrimination based specifically on “Arabian ancestry” constituted racial discrimination for purposes of
Based on the history of
§ 1981 , we have little trouble in concluding that Congress intended to protect from discrimination identifiable classes of persons who are subjected to intentional discrimination solely because of their ancestry or ethnic characteristics. Such discrimination is racial discrimination that Congress intended§ 1981 to forbid, whether or not it would be classified as racial in terms of modern scientific theory. [Section] 1981, at a minimum, reaches discrimination against an individual because he or she is genetically part of an ethnically and physiognomically distinctive sub-grouping of homo sapiens. It is clear from our holding, however, that a distinctive physiognomy is not essential to qualify for§ 1981 protection.
Id. at 613 (footnotes and internal quotation marks omitted).
Examples of this contestation and revision have at times reached our highest court. In the early twentieth century, the Supreme Court decided a number of cases delineating who qualified as white and were therefore afforded its privileges. In Ozawa v. United States, 260 U.S. 178 (1922), the Court held that a man of the “Japanese race born in Japan” was not a “white person” and therefore was not qualified to be naturalized under the country‘s then-racially restrictive naturalization laws. It reasoned that the term “white person” was synonymous with the “Caucasian race.” Id. at 189, 197-98. A year later, the Court, however, held that a man of South Asian descent born in India did not qualify as a “white person” despite acknowledging that many scientific authorities at the time considered South Asians to be members of the Caucasian race. United States v. Thind, 261 U.S. 204, 210-15 (1923); see also Gong Lum v. Rice, 275 U.S. 78 (1927) (upholding a state court ruling requiring an American citizen of Chinese descent to attend school for “colored” children and not for white children).
See also Hernandez v. State of Tex., 347 U.S. 475, 478 (1954) (“Throughout our history differences in race and color have defined easily identifiable groups which have at times required the aid of the courts in securing equal treatment under the laws. But community prejudices are not static, and from time to time other differences from the community norm may define other groups which need the same protection. Whether such a group exists within a community is a question of fact.“); D. Wendy Greene, Title VII: What‘s Hair (and Other Race-Based Characteristics) Got to Do With It?, 79 U. Colo. L. Rev. 1355, 1385 (2008) (“Race includes physical appearances and behaviors that society, historically and presently, commonly associates with a particular racial group, even when the physical appearances and behavior are not ‘uniquely’ or ‘exclusively’ ‘performed’ by, or attributed to a particular racial group.“).
See also Sarah Krakoff, They Were Here First: American Indian Tribes, Race, and the Constitutional Minimum, 69 Stan. L. Rev. 491, 496 n.21 (2017) (collecting “laws [that] recognize and honor ancestry” outside the Indian law context).
See also Stephen M. Rich, Inferred Classifications, 99 Va. L. Rev. 1525, 1532 (2013) (discussing how the Supreme Court has inferred facial racial classifications based on a “legislation‘s form and practical effect“).
We do not address whether ancestry can be a proxy for race in contexts beyond the scope of the
Guam acknowledged in the district court that the term “Chamorro” refers to a distinct racial category and does not seriously contest otherwise on appeal. We have similarly recognized “Chamorro” as a racial classification for
The Registry Act‘s and the 1997 Plebiscite Law‘s definition of “Chamorro” do not incorporate the third citizenship provision of the Organic Act, which grants citizenship to individuals born in Guam on or after April 11, 1899.
The 2000 Plebiscite Law slightly changed the definition of “Chamorro” in the Registry Act to include individuals born in Guam prior to 1800 and their descendants. See
Although Mancari‘s rationale was premised on the recognized quasi-sovereign tribal status of Indians, “the Supreme Court has not insisted on continuous tribal membership, or tribal membership at all, as a justification for special treatment of Indians,” and neither has Congress. Kamehameha Schs., 470 F.3d at 851 (Fletcher, J., concurring) (collecting cases and statutes).
Because we affirm the district court on