US Territories Archives - Columbia Law Review

Introduction Marilyn lives in a house with her closest friends, whom she calls her sisters.[footnote]Marilyn is a composite reflecting how many fa‘afafine in American Samoa live their lives. See Jeanette M. Mageo, Male Transvestism and Cultural Change in Samoa, 19 Am. Ethnologist 443, 454 (1992) (“In towns one finds fa’afafine houses where a number of ‘girls’ live and congregate; the house in downtown American Samoa is called Hollywood. A fa’afafine will often adopt a fancy English name, usually one that begins with the same letter as her Samoan name.”).[/footnote] Sharing their hopes, dreams, and dresses, this family of choice is closer than most families. Although some sisters have boyfriends, they lament that their plans for the future cannot include marriage, because they are fa‘afafine, members of American Samoa’s traditional third gender.[footnote]See infra notes 48–60 (explaining gender terminology in American Samoa).[/footnote] They were all born and raised on American soil, and if they lived in any state or any other U.S. territory, they would be able to legally marry whom they please. But Marilyn and her sisters live in American Samoa, the U.S. territory that stands alone in refusing to recognize gender-neutral marriage. This denial of rights inflicts significant harm on male–fa‘afafine couples. In addition to the dignitary harm that these couples experience when the government labels their relationships as unworthy, they face discrimination in healthcare, taxation, estate planning, and everyday life.[footnote]See infra notes 279–282 and accompanying text; see also Christopher R. Leslie, Dissenting From History: The False Narratives of the Obergefell Dissents, 92 Ind. L.J. 1007, 1035–51 (2017) (detailing harms to same-sex couples denied marriage rights).[/footnote] Marriage equality unfurled across America in the summer of 2015. In Obergefell v. Hodges ,[footnote]576 U.S. 644 (2015).[/footnote] the Supreme Court struck down the same-sex marriage bans of Kentucky, Michigan, Ohio, and Tennessee, observing that “the Court has long held the right to marry is protected by the Constitution.”[footnote]Id. at 664.[/footnote] While the opinion immediately brought marriage equality to all fifty states, the Attorney General of American Samoa, Talauega Eleasalo Ale, declined to recognize the decision as binding. Instead, Ale deferred judgment of Obergefell ’s “applicability to American Samoa”[footnote]Fili Sagapolutele & Jennifer Sinco Kelleher, American Samoa Questions Gay Marriage Validity in Territory, Associated Press (July 10, 2015), https://apnews.com/ c1deb598da6a482587fdd5bac501fc94 [https://perma.cc/282Z-VH22] (quoting Attorney General Ale).[/footnote]—a determination he never made in the next six years before becoming the territory’s Lieutenant Governor in 2021. More transparent in his obstruction, the Governor of American Samoa, Lolo Matalasi Moliga, announced days after the opinion was issued that the Obergefell “ruling will not apply to our preamble, our constitution and our Christian values . . . . [T]he Supreme Court ruling does not apply to our territory.”[footnote]Same Sex Marriage Rejected by Local Church Leaders, Samoa News (July 13, 2015), https://www.samoanews.com/same-sex-marriage-rejected-local-church-leaders?qt-quicktabs=1 [https://perma.cc/T4J9-BP5A].[/footnote] The executive branch was not alone in blocking marriage equality in American Samoa. Months later, during his confirmation hearing to become a local judge, the territory’s former Attorney General, Fiti Alexander Sunia, testified that he had not read the Obergefell opinion and would not perform same-sex weddings unless American Samoan law were changed.[footnote]American Samoa Judge Objects to Same Sex Marriage, Radio N.Z. (Jan. 20, 2016), https://www.rnz.co.nz/international/pacific-news/294500/american-samoa-judge-objects-to-same-sex-marriage [https://perma.cc/JR2N-6LT8].[/footnote] The American Samoa Senate then unanimously confirmed his appointment.[footnote]Id.[/footnote] This Essay explores why American Samoan leaders believe they can ignore the U.S. Supreme Court. This is a modern problem, but one rooted in America’s history of colonial expansion. The fa‘afafine of American Samoa are denied marriage rights because of a series of Supreme Court opinions from 1901, before the United States acquired the eastern islands of the Samoan archipelago and transformed them into a U.S. territory. America doesn’t see itself as an empire, but it is.[footnote]See Daniel Immerwahr, How to Hide an Empire: A History of the Greater United States 14–17 (2019) (discussing the evolution and concealment of America’s empire).[/footnote] The modern United States would not exist but for settler colonialism.[footnote]See Roxanne Dunbar-Ortiz, An Indigenous Peoples’ History of the United States 2 (2014) (“The history of the United States is a history of settler colonialism . . . .”).[/footnote] Instead of colonies, however, America maintains and controls territories, districts, and possessions.[footnote]Immerwahr, supra note 10, at 7–10 (noting that the use of the word “colony” to describe U.S. territorial acquisitions “became taboo”).[/footnote] The year 1898 was momentous in America’s empire building, with the annexation of Hawai‘i through subterfuge[footnote]20 U.S.C. § 7512 (2018) (presenting congressional findings that “[i]n 1893, the sovereign, independent, internationally recognized, and indigenous government of Hawaii, the Kingdom of Hawaii, was overthrown by a small group of non-Hawaiians,” including a number of United States government officials, and was later annexed by the United States in 1898); see also Danielle Conway-Jones, Safeguarding Hawaiian Traditional Knowledge and Cultural Heritage: Supporting the Right to Self-Determination and Preventing the Co-Modification of Culture, 48 How. L.J. 737, 751 (2005) (“Because of Captain James Cook’s accidental sighting of the islands in 1778, Hawai‘i became a target for colonization and the focus of threats of political, social, and economic manipulation from the 1800s to the present.”).[/footnote] and of Spain’s former colonies of the Philippines, Puerto Rico, and Guam as the spoils of winning the Spanish-American War.[footnote]Andrew Kent, The Jury and Empire: The Insular Cases and the Anti-Jury Movement in the Gilded Age and Progressive Era, 91 S. Cal. L. Rev. 375, 377 (2018) (“As a result of the 1898 war against Spain, the United States annexed the Spanish colonies of the Philippines, Puerto Rico, and Guam and temporarily occupied Cuba.”).[/footnote] These acquisitions raised the issue of how U.S. law, including the Constitution, would apply to these new possessions.[footnote]See id. (“Starting in 1901, the Insular Cases addressed the legal status of new overseas possessions and their peoples under the U.S. Constitution and statutes.”).[/footnote] In the early twentieth century, the Supreme Court issued a slate of opinions known as the Insular Cases .[footnote]See Efrén Rivera Ramos, The Legal Construction of American Colonialism: The Insular Cases (1901–1922), 65 Revista Jurídica Universidad de Puerto Rico 225, 228 (1996) (laying out the history, ideology, and effects of the Insular Cases ).[/footnote] Though elastic, the label of Insular Cases generally refers to several Supreme Court cases decided in 1901 and their close-following progeny.[footnote]Juan R. Torruella, One Hundred Years of Solitude: Puerto Rico’s American Century, in Foreign in a Domestic Sense: Puerto Rico, the American Expansion, and the Constitution 241, 248 n.14 (Christina Duffy Burnett & Burke Marshall eds., 2001) (“The Insular Cases , strictly speaking, are the original six opinions issued in 1901 involving the status of the territories acquired as a result of the 1898 Treaty of Paris . . . .”). The cases are: De Lima v. Bidwell, 182 U.S. 1 (1901); Goetze v. United States, 182 U.S. 221 (1901); Dooley v. United States, 182 U.S. 222 (1901); Armstrong v. United States, 182 U.S. 243 (1901); Downes v. Bidwell, 182 U.S. 244 (1901); Huus v. N.Y. & P.R. Steamship Co., 182 U.S. 392 (1901). Many scholars include as Insular Cases several additional opinions between 1901 and 1922. See Kal Raustiala, Does the Constitution Follow the Flag?: The Evolution of Territoriality in American Law 80 (2009) (“The set of Supreme Court decisions known as ‘the Insular Cases’ addressed the legal status of the new overseas territories. There were approximately twenty such cases, decided between 1900 and 1922, with the majority handed down between 1901 and 1904.”); Christina Duffy Burnett, A Convenient Constitution? Extraterritoriality After Boumediene , 109 Colum. L. Rev. 973, 975 n.4 (2009) (“The Insular Cases include a long list of decisions handed down between 1901 and 1922 . . . .”).[/footnote] None of the Insular Cases arose from legal disputes in American Samoa, but the opinions would nevertheless define and constrain the Constitution’s reach into America’s most faraway territory.[footnote]See infra Part III.[/footnote] Although U.S. territories are technically part of the United States of America, from a constitutional perspective the lacuna between technicality and reality is vast. The Insular Cases limited and continue to limit constitutional protections for Americans in U.S. territories by holding that “the Constitution is applicable to territories acquired by purchase or conquest, only when and so far as Congress shall so direct.”[footnote] Downes , 182 U.S. at 279.[/footnote] In the absence of congressional direction, the Insular Cases framework provides that courts should extend a constitutional right to protect citizens of a U.S. territory only if the right is judged to be “fundamental”—which has a narrow meaning in the Insular context—and if recognizing the right would not be “impracticable and anomalous.”[footnote]Fitisemanu v. United States, 1 F.4th 862, 878, 881 (10th Cir. 2021).[/footnote] The Insular Cases prevent current Supreme Court opinions that recognize or expand constitutional rights from automatically applying to U.S. territories, as these opinions do to U.S. states. The Insular Cases created the illusion of constitutional self-government in America’s far-flung territories even though the residents of these various islands were entitled neither to full constitutional protections nor to true autonomy.[footnote]See Raustiala, supra note 17, at 86 (noting that the Insular Cases “facilitated the imperial ambitions of turn of the century America while retaining a veneer of commitment to constitutional self-government”).[/footnote] The Supreme Court justices who authored the opinions did not trust the people of the former Spanish colonies to govern themselves, but the justices also “repeatedly voiced concern that native inhabitants of the unincorporated territories were simply unfit for the American constitutional regime.”[footnote] Fitisemanu , 1 F.4th at 870.[/footnote] By not denying constitutional protections outright, the Insular Cases clothed colonialism in democracy’s garb.[footnote]See Burnett, supra note 17, at 989 (“Despite the vigorous disagreement among the Justices, the holding in Downes soon put an end to the popular and political debate. The imperialists had won the day . . . .”); see also Raustiala, supra note 17, at 223 (“Yet by holding that only some rights applied in the new island possessions, whereas others lost their strength at the water’s edge, the early-twentieth-century Insular Cases cobbled together an odd and unstable marriage of imperialism and constitutionalism.”).[/footnote] Given their colonial premises and racist reasoning, the Insular Cases have long been controversial and are generally held in disrepute.[footnote]See United States v. Vaello Madero, 142 S. Ct. 1539, 1552 (2022) (Gorsuch, J., concurring) (“It is past time to acknowledge the gravity of this error and admit what we know to be true: The Insular Cases have no foundation in the Constitution and rest instead on racial stereotypes. They deserve no place in our law.”); Fitisemanu , 1 F.4th at 869 (“The Insular Cases . . . are criticized as amounting to a license for further imperial expansion and having been based at least in part on racist ideology.”); see also Igartúa de la Rosa v. United States, 417 F.3d 145, 163 (1st Cir. 2005) (Torruella, J., dissenting) (describing the Insular Cases as “anchored on theories of dubious legal or historical validity, contrived by academics interested in promoting an expansionist agenda”); King v. Morton, 520 F.2d 1140, 1153 (D.C. Cir. 1975) (Tamm, J., dissenting) (“The Insular Cases, in the manner in which the results were reached, the incongruity of the results, and the variety of inconsistent views expressed by the different members of the court, are, I believe, without parallel in our judicial history.”).[/footnote] Yet despite abundant refutations of their logic and holdings, the cases remain influential because the Supreme Court has not overruled them.[footnote] Fitisemanu , 1 F.4th at 870 (noting that despite their racist origins, “the Supreme Court has continued to invoke the Insular framework when it has grappled with questions of constitutional applicability to unincorporated territories”); Adriel I. Cepeda Derieux & Neil C. Weare, After Aurelius : What Future for the Insular Cases ?, 130 Yale L.J. Forum 284, 293–94 (2020) (“[T]he Insular Cases are still dangerous. Because the Supreme Court has not overruled them, lower courts reflexively rely on and often misapply the Insular Cases , regardless of the Court’s recent narrowing language.”); see also Vaello Madero , 142 S. Ct. at 1557 (Gorsuch, J., concurring) (“But the time has come to recognize that the Insular Cases rest on a rotten foundation. And I hope the day comes soon when the Court squarely overrules them.”).[/footnote] As a result, lower courts continue to apply—and sometimes expand—the Insular Cases in ways that “deprive[] territorial residents of rights and protections to which they are almost surely entitled.”[footnote]Derieux & Weare, supra note 25, at 294.[/footnote] Their enduring influence is both tragic and perplexing because they are anachronisms. The 1901 Insular Cases were decided before the Wright Brothers’ first flight[footnote]McCarran Int’l Airport v. Sisolak, 137 P.3d 1110, 1120 n.23 (Nev. 2006) (“The first successful controlled powered flight by the Wright Brothers occurred in 1903.”).[/footnote] and the opening of the Panama Canal,[footnote]David McCullough, The Path Between the Seas: The Creation of the Panama Canal 1870–1914, at 12 (1977) (noting that the passage of the first ship through the Panama Canal occurred in 1914).[/footnote] when America’s Pacific territories were inaccessible, abstract concepts generally omitted from maps of the United States.[footnote]See Immerwahr, supra note 10, at 8–9 (noting how even today U.S. maps tend to exclude territories such as American Samoa, Guam, and Puerto Rico).[/footnote] Constitutional jurisprudence was still in its early stages, as the Supreme Court had not yet meaningfully incorporated the provisions of the Bill of Rights to apply to the states, let alone to recently acquired territories.[footnote]Raustiala, supra note 17, at 24 (“If the Bill of Rights did not fully apply within the United States, many reasoned, surely it did not fully apply outside the United States either. Thus the Insular Cases enabled American empire by limiting the reach of the Constitution.”).[/footnote] Yet even though the Age of the Insular Cases is in many ways unrecognizable today, these opinions continue to limit constitutional protections in U.S. territories. This Essay explores one less-appreciated problem with the Insular Cases : This body of jurisprudence can deprive sexual minorities living in U.S. territories of constitutional rights, such as the right to marriage equality in American Samoa.[footnote]Because of the 1899 colonial partition of the islands, see infra notes 169–170 and accompanying text, two Samoas currently exist. This Essay uses “American Samoa” to refer to the U.S. territory and “sovereign Samoa” when discussing the independent island nation to the west known today as “Samoa.” Sovereign Samoa was formerly a German colony and was then under New Zealand control until it gained independence as “Western Samoa” in 1962, renaming itself “Samoa” in 1997. Ruiping Ye, Torrens and Customary Land Tenure: A Case Study of the Land Titles Registration Act 2008 of Samoa, 40 Victoria U. Wellington L. Rev. 827, 829 (2009). The Essay uses the term “Samoa” when referencing the history, culture, and traditions shared across the islands.[/footnote] The Obergefell decision invalidated any same-sex marriage ban in all fifty states. But the Insular Cases insulated the residents of U.S. territories from automatic protection. Soon after the Supreme Court announced Obergefell , however, officials in Guam, the Commonwealth of the Northern Mariana Islands (CNMI), the U.S. Virgin Islands (USVI), and Puerto Rico acquiesced to the opinion, leaving American Samoa as the exception—the only U.S. territory that does not recognize gender-neutral marriages.[footnote]See infra section II.A.[/footnote] Beyond the marriage issue, American Samoa is exceptional among the U.S. territories in myriad ways. For example, American Samoa has a unique origin story. The United States acquired its other current territories from rival colonial powers. Puerto Rico, Guam, and the CNMI had all been Spanish colonies. The United States acquired Puerto Rico and Guam directly from Spain following the Spanish-American War,[footnote]Treaty of Peace Between the United States of America and the Kingdom of Spain, Spain-U.S., art. 2, Dec. 10, 1898, 30 Stat. 1754.[/footnote] while it gained control over the CNMI through a more circuitous route.[footnote]Between Magellan’s landing on its shores in 1521 and its administration by the United States following World War II, the Northern Mariana Islands had been controlled by a string of colonial powers, including Spain, Germany, and Japan. Gretchen Kirschenheiter, Resolving the Hostility: Which Laws Apply to the Commonwealth of the Northern Mariana Islands When Federal and Local Laws Conflict, 21 U. Haw. L. Rev. 237, 240–41 (1999). After Japan’s defeat in World War II, the islands became part of the United Nations Trust Territory of the Pacific Islands with the United States as trustee. Id. at 241. The islands later negotiated commonwealth status with the United States and became a U.S. territory. Id. at 241–42.[/footnote] The United States purchased the USVI—then known as the Danish West Indies—from Denmark in 1917 for $25,000,000.[footnote]Convention Between the United States and Denmark, Etc. on Cession of the Danish West Indies, Den.-U.S., art. 5, Aug. 4, 1916, 39 Stat. 1706. Denmark and the United States ratified the exchange treaty in 1916 and 1917, respectively. Id.[/footnote] In contrast to these territories, the United States acquired American Samoa through a combination of negotiation, religious imperialism, and promises to protect the local customs and culture.[footnote]See infra notes 170–177 and accompanying text.[/footnote] Flowing from its distinctive genesis, American Samoa is the only territory whose people lack birthright citizenship, meaning that individuals born there are U.S. nationals, not U.S. citizens.[footnote]See 8 U.S.C. § 1408(1) (2018) (designating those born in “an outlying possession of the United States” as U.S. nationals, but not U.S. citizens); id. § 1101(29) (defining “outlying possessions of the United States” as American Samoa and Swains Island, which is part of American Samoa); Tuaua v. United States, 788 F.3d 300, 302 (D.C. Cir. 2015) (“Unlike those born in the United States’ other current territorial possessions—who are statutorily deemed American citizens at birth— . . . the Immigration and Nationality Act of 1952 designates persons born in American Samoa as non-citizen nationals.”).[/footnote] In addition, American Samoa has distinctive political and social structures. Unlike other U.S. territories, American Samoa “remains under the ultimate supervision of the Secretary of the Interior.”[footnote] Tuaua , 788 F.3d at 302 (citing Exec. Order No. 10,264, 16 Fed. Reg. 6417 (June 29, 1951) (transferring administration of American Samoa from the Secretary of the Navy to the Secretary of the Interior)).[/footnote] It is the only U.S. territory without a federal court.[footnote]Barlow v. Sunia, No. 18-00423, 2019 WL 5929736, at *4 (D. Haw. Nov. 12, 2019); Uilisone Falemanu Tua, Note, A Native’s Call for Justice: The Call for the Establishment of a Federal District Court in American Samoa, 11.1 Asian-Pac. L. & Pol’y J. 246, 255 (2009).[/footnote] American Samoa is also the only state or territory composed primarily of communal land.[footnote]Fitisemanu v. United States, 1 F.4th 862, 866 (10th Cir. 2021); Tuaua , 788 F.3d at 309.[/footnote] Its society is structured around extended families, known as ‘aiga.[footnote] Fitisemanu , 1 F.4th at 866.[/footnote] Over ninety percent of American Samoan land is owned and controlled by ‘aiga, not individuals.[footnote]Id.[/footnote] Although some land is individually owned, American Samoan law restricts land ownership to individuals who are at least fifty percent American Samoan.[footnote]Id. (citing Am. Samoa Code Ann. § 37.0204(a)–(b) (1982)).[/footnote] Communal land ownership and related restrictions are part of fa‘a Samoa—translated as “the Samoan way”—the governing principle of Samoan law and society.[footnote]See Hueter v. Kruse, No. CV 21-00226, 2021 WL 5989105, at *5 (D. Haw. Dec. 17, 2021) (“Samoan land tenure law is part of Fa’a Samoa —the Samoan way of life.”); Corp. of Presiding Bishop of Church of Jesus Christ of Latter-Day Saints v. Hodel, 637 F. Supp. 1398, 1401 (D.D.C. 1986) (“The importance of communal landholding to the Fa’a Samoa is evidenced by the fact that, since their earliest contacts with the West, Samoans have insisted on protecting the communal land system from encroachment.”), aff’d, 830 F.2d 374 (D.C. Cir. 1987); see also id. (defining fa‘a Samoa as “the Samoan way of thinking and doing”).[/footnote] Fa‘a Samoa provides the foundation for both daily life and generational governance.[footnote] Hodel , 637 F. Supp. at 1401; Ivy Yeung, The Price of Citizenship: Would Citizenship Cost American Samoa Its National Identity?, 17 Asian-Pac. L. & Pol’y J. 1, 8 (2016) (“ Fa ‘ a Samoa has continued for generations and is intrinsic in all of American Samoa’s socio-political and cultural existence.”).[/footnote] American Samoa is also America’s only Polynesian territory, ever since the Territory of Hawai‘i became a state in 1959.[footnote]See How Did Hawaii Become a US State?, WorldAtlas, https://www.worldatlas.com/ articles/how-did-hawaii-become-a-us-state.html [https://perma.cc/E3VF-4S3V] (last visited Aug. 17, 2022). America’s other four territories are also island societies, but none are Polynesian, with Puerto Rico and the USVI in the Caribbean and Guam and the CNMI in Micronesia. See What Are the US Territories?, WorldAtlas, https://www.worldatlas.com/ articles/the-territories-of-the-united-states.html#:~:text=The%20US%20Territories%20are%3A, US%20Virgin%20Islands [https://perma.cc/5ESM-8XFW] (last visited Aug. 4, 2022) (listing and describing the U.S. territories).[/footnote] This status is significant because Polynesian social and legal culture is distinct. In particular, Polynesian concepts of land, family, sexuality, and identity do not map neatly onto their Anglo-American counterparts or those of other U.S. territories.[footnote]See Yeung, supra note 45, at 4 (“The Samoan islands’ ability to sustain its culture and customs alongside modern influences is unique in the South Pacific, as many neighboring island nations are now largely devoid of their traditions.”); id. at 8–9 (noting that American Samoa’s tradition of collective land ownership is an idea “not widely held in the United States where concepts of private property are prevalent”).[/footnote] Given its Polynesian roots, American Samoa shares more cultural commonalities with Hawai‘i than with the other U.S. territories. For example, Polynesian cultures recognize a category of individuals who are anatomically male and spiritually female, an identity called fa‘afafine in Samoa and māhū in Hawai‘i.[footnote]See Niko Besnier, Polynesian Gender Liminality Through Time and Space, in Third Sex, Third Gender: Beyond Sexual Dimorphism in Culture and History 285, 286 (Gilbert Herdt ed., 1994). This Essay follows the convention of treating the word “fa‘afafine” as both singular and plural. See, e.g., Jinghua Qian, Fa‘afafine Yuki Kihara Celebrates Samoa’s Third Gender: “Galleries Think They Can Tick the Box With Me”, Guardian (Apr. 28, 2022), https://www.theguardian.com/artanddesign/2022/apr/29/faafafine-yuki-kihara-celebrates-samoas-third-gender-galleries-think-they-can-tick-the-box-with-me [https://perma.cc/ F9FQ-N7QP] (using this convention). But see Besnier, supra, at 286 (including a diacritic marking to denote the plural form (i.e., “fa‘afāfine”) (emphasis omitted)).[/footnote] Fa‘afafine is a compound word, combining the prefix fa‘a—“in the way of”—and fafine, the Samoan word for “woman.”[footnote]Serge Tcherkézoff, Transgender in Samoa, in Gender on the Edge: Transgender, Gay, and Other Pacific Islanders 115, 116 (Niko Besnier & Kalissa Alexeyeff eds., 2014).[/footnote] Dressing in traditional women’s garments, the fa‘afafine of Samoa and the māhūs of Hawai‘i are not crossdressers; they are a third gender.[footnote]This Essay uses the term “third gender,” acknowledging that such a term may nonetheless be an imperfect means of describing Polynesian “gender liminality.” See Besnier, supra note 48, at 286 (opting not to refer to fa‘afafine and māhūs as a “third gender” but acknowledging that “the phenomenon is primarily an issue of gender rather than sex ”). Fa‘afafine are sometimes described as “males who have been reared as females and see themselves as females.” Sue Farran, Transsexuals, Fa‘afafine, Fakaleiti and Marriage Law in the Pacific: Considerations for the Future, 113 J. Polynesian Soc’y 119, 120 (2004).[/footnote] Although many have romantic and intimate relationships with men,[footnote]Most third-gender Polynesians have sexual relationships with men, not women or other third-gender individuals. Besnier, supra note 48, at 300 (“Western-style lesbian and gay identities further differ from gender-liminal Polynesians in a fundamental way: if the latter engage in sexual relations, they always do so with nonliminal men, never with members of their own category.”).[/footnote] fa‘afafine are not gay because they are not men in Samoan culture.[footnote]Douglass Paul Michael St. Christian, Body/Work: Aspects of Embodiment and Culture in Samoa 124 (Oct. 1994) (Ph.D. dissertation, McMaster University), https:// macsphere.mcmaster.ca/bitstream/11375/12997/1/fulltext.pdf [https://perma.cc/77FP-8YGW] (“[T]he fa’afafine are not male and their penises are not male sex organs. They are fa’afafine organs. That is, sex organs, but not ones which define the fa’afafine as male.”); Ashleigh McFall, “When Did You First Know You Were a Fa‘afafine?”, E-Tangata (Oct. 14, 2018), https://e-tangata.co.nz/reflections/when-did-you-first-know-you-were-a-faafafine/ [https:// perma.cc/3XCN-GXGT] (“The most common misconception is that fa’afafine are gay.”). Samoan culture lacks the concepts of heterosexuality and homosexuality. Johanna Schmidt, Migrating Genders: Westernisation, Migration, and Samoan Fa‘afafine 18 (Pamela J. Steward & Andrew Strathern eds., 2016); see also Robert Carney, The Health Needs of the Fa’afafine in American Samoa and Transgender Research Methodology, 5 Colum. U. J. Glob. Health, Spring 2015, at 38, 39 (“Samoans do not consider relations among fa’afafine to be homosexual.”).[/footnote] Fa‘afafine and māhūs represent a separate, distinct gender in their respective societies.[footnote]Schmidt, supra note 52, at 67–68 (explaining why fa‘afafine are neither men nor women); Deborah Elliston, Queer History and Its Discontents at Tahiti: The Contested Politics of Modernity and Sexual Subjectivity, in Gender on the Edge: Transgender, Gay, and Other Pacific Islanders, supra note 49, at 33, 34 (“[ M ] āhū is a gender category . . . .”). But see Besnier, supra note 48, at 326 (arguing that fa‘afafine should not be treated as having a distinct gender status).[/footnote] Fa‘afafine identity is innate.[footnote]Schmidt, supra note 52, at 2 (noting that “most fa’afafine experience their particular gendered identities as beyond their control”); id. at 63 (noting that fa‘afafine experience their femininity as innate). This is important to note because there is a popular—but disproven—misconception that Samoan families raise boys as girls to compensate for a lack of daughters. Id. at 16.[/footnote] This concept of identity can be difficult for some non-Polynesians to comprehend. As one scholar who is fa‘afafine explained, “[F]a’afafine is a cultural identity and for one to understand it, one must first understand the Samoan culture.”[footnote]Ashleigh McFall, A Comparative Study of the Fa‘afafine of Samoa and the Whakawahine of Aotearoa/New Zealand 3, 23 (2013) (M.A. thesis, Victoria University of Wellington), http://researcharchive.vuw.ac.nz/bitstream/handle/10063/3179/thesis.pdf? sequence=8 [https://perma.cc/Q3VD-3WU5] [hereinafter McFall, A Comparative Study].[/footnote] Discussing Polynesian concepts through the English language is difficult. Scholars can invoke Hawaiian and Samoan words—transliterated into the Roman alphabet—but these words have no meaning to an English-speaking audience unless described in English words, which will inherently fail precisely because there is no English equivalent to these Polynesian concepts. This is particularly true with gender identity and sexual orientation. In recent years, American society has progressed in recognizing a greater range of sexual orientations and gender identities, many of which are included in the ever-expanding acronym of LGBTQIA+. But none of the Polynesian concepts map perfectly onto the sexual alphabet of English-language discourse. The categories of māhū and fa‘afafine are not identical to transgender identity.[footnote]See Schmidt, supra note 52, at 5 (defining the Western concept of “transexual” as a “person who [is] biologically one sex, but [feels] themselves to be the ‘opposite’ gender”); Emily Blincoe, Sex Markers on Birth Certificates: Replacing the Medical Model with Self-Identification, 46 Victoria U. Wellington L. Rev. 57, 58 (2015) (noting that terms such as fa‘afafine and māhū depart from Western conceptions of gender identity and “can only be understood within their cultural context.”); cf. Farran, supra note 50, at 137 (arguing that the “ fa‘afafine and fakaleiti [of Tonga] do not neatly fit into Western categories of male, female, heterosexual, homosexual or transsexual, but are unique to the Pacific region” (citation omitted)).[/footnote] In contrast to the Western concept of transgender or transsexual identity, in which a person is anatomically one sex but feels themselves to be in the “wrong body,” fa‘afafine are in the “correct” body but are a gender unrecognized in the Western binary.[footnote]See Schmidt, supra note 52, at 5; Blincoe, supra note 56, at 58; Farran, supra note 50, at 137.[/footnote] The Western sexual lexicon contains no equivalent to māhū or fa‘afafine.[footnote]Carol E. Robertson, The Māhū of Hawai’i, 15 Feminist Stud. 312, 314 (1989) (noting that “the māhū phenomenon . . . defies reduction to any of the notions of gender familiar to us in the West”).[/footnote] Because māhū and fa‘afafine do not seamlessly map to the “T” in LGBTQIA+ and have a more nuanced meaning than any of the remaining letters, this Essay sometimes uses the terms “third gender” and “sexual minorities.” Because these phrases are also Western constructs written in English, they are not perfect either.[footnote]Using Western words to describe Polynesian concepts can privilege the Western understanding and devalue Polynesian identity. Linda L. Ikeda, Re-Visioning Family: Māhūwahine and Male-to-Female Transgender in Contemporary Hawai‘i in Gender on the Edge: Transgender, Gay, and Other Pacific Islanders, supra note 49, 135, 137–38 (observing that “juxtaposing an indigenous term with a Western understanding[] arguably serve[s] to privilege the Western understanding and render the ‘alternative’ indigenous understand-ings unintelligible, except in translation or as borrowings”). Some commentators reject the terminology of “sexual minorities.” See Adam R. Chang, A Non-Native Approach to Decolonizing Settler Colonialism Within Hawaii’s LGBT Community, 14 Asian-Pac. L. & Pol’y J. 132, 144 (2013) (opposing the term “sexual minority” because “[c]ategorizing aikāne and māhū as a ‘sexual minority’ disenfranchises Native LGBT people in both the Hawaiian and non-Native community because ‘minority’ is by default a group that is ‘less than’”).[/footnote] For now, though, these terms are the best available given the limitations of language.[footnote]The evolving concept of “genderfluidity” may be more appropriate than any of the letters in the current sexuality acronym. But while identifying as “genderfluid” has the advantage of flexibility for individuals uncomfortable pegging their sexuality to a single letter, many fa‘afafine see themselves as part of a distinct, long-lived identity within Samoan society and culture. See Chang, supra note 59, at 142.[/footnote] With these linguistic caveats in mind, this Essay proceeds in five parts. Part I discusses pre-Western-contact Polynesian societies,[footnote]Although most of these societies would evade American colonization—either by retaining their independence or being colonized by another Western power—their histories are important to appreciating the near universality of sexual diversity across the South Pacific. See infra Part I.[/footnote] especially Tahiti, Hawai‘i, and Samoa, the latter two of which would become U.S. territories, with Hawai‘i eventually becoming a state. In particular, Part I describes how all these societies recognized and respected third-gender individuals. Part II discusses why American Samoa is now the only part of the United States that does not recognize gender-neutral marriages. American Samoa prevents both same-sex couples and fa‘afafine–male couples from exercising their constitutional right to marry.[footnote]It would be inaccurate to describe a marriage between a man and a fa‘afafine or between a woman and a fa‘afafine as a same-sex marriage because a fa‘afafine is neither a man nor a woman but a third gender. Schmidt, supra note 52, at 44–47. When appropriate, this Essay uses the phrase gender-neutral marriage to refer to the right protected by Obergefell v. Hodges, 576 U.S. 644 (2015), for individuals to marry the adult of their choice regardless of gender.[/footnote] This is a function of territorial law, including the Insular Cases .[footnote]Ian Tapu, Note, Is It Really Paradise: LGBTQ Rights in the U.S. Territories, 19 UCLA Dukeminier Awards J. 273, 279 (2020) (“The fact that American Samoa has not yet fully established marriage equality within its borders is, at least in part, attributable to the Supreme Court’s doctrine established in the Insular Cases . . . . ”).[/footnote] Part III discusses how American Samoa became a U.S. territory and how the Insular Cases operate to prevent American Samoans from automatically receiving the protections of the U.S. Constitution. Although the Insular Cases never considered the constitutional rights of sexual minorities, these cases nonetheless have important implications for the fa‘afafine. Part III also makes the case for why Obergefell should apply to American Samoa despite the Insular Cases . Part IV examines the inherent unfairness of allowing the 1901 Insular Cases to prevent fa‘afafine from having marriage rights in the 2020s. American Samoa is the only American territory or state that prohibits fa‘afafine from marrying their intended husbands. Yet American Samoa is precisely the communal and ancestral land that is most important and sacred to the fa‘afafine. While litigation for marriage equality defined the LGBT movement in the United States at the beginning of the twenty-first century, because of its territorial status and related constraints, such litigation is less likely to occur and to be successful in American Samoa. This denial and delay of constitutional rights is an affront to the dignity of fa‘afafine and other sexual minorities in American Samoa. Part V highlights the broader issue of how to protect minority rights in the shadow of colonialism. Expanding marriage equality to American Samoa over the opposition of local leaders arguably smacks of legal imperialism. While a seemingly narrow issue, the denial of marriage rights in American Samoa is a microcosm of the larger tension between empire and democracy, between colonialism and self-determination. Part V explains why, in the context of the individual right to marry, constitutionalism trumps self-rule. The issue of marriage equality has important implications for how the U.S. Constitution should apply to U.S. territories. This Essay advances three points. First, it exposes an unappreciated harm caused by the Insular Cases : the denial of minority rights in U.S. territories, in this case the constitutional right to gender-neutral marriage in American Samoa. Second, the Essay makes the case for why Obergefell protects the marriage rights of sexual minorities in American Samoa. Although the Insular Cases present a hurdle to marriage equality, the barrier is not insurmountable. But because of the Insular framework, the legal issues are unnecessarily complicated. And even if the challengers win, the litigation process imposes an unacceptable burden on sexual minorities seeking constitutional protections. Third, the Essay situates these above discussions in the context of the larger issue of self-determination of U.S. territories. What does it mean for the United States to exert control over a territory? On the surface, a tension seems to exist between the importance of recognizing the fundamental right of marriage equality and the importance of respecting self-determination in a territory. When a territory declines to recognize a constitutional right—such as marriage equality in American Samoa—should federal officials (whether Congress or Article III judges) override local decisionmakers? This Essay argues that when the right is fundamental and personal, the answer is affirmative, even though there is a countervailing interest in territorial self-determination.