Since 1996, there have been a string of court cases that harm indigenous rights to land and self-determination. I want to share the story of cases in Hawaii, in Puerto Rico, Guam, and in the Tribal Nations. Then I will connect it all to the “voting rights” cases that keep popping up about American Samoa.
The first court case in this story takes place in Hawai’i. In 1996, a non-Hawaiian rancher sued for "voting rights" in an election for the Office of Hawaiian Affairs, which manages the Hawaiian Ceded Lands. The rancher was represented by Ted Olson, a powerful lawyer from the firm Gibson, Dunn and Crutcher, LLP. When Mr. Olson and the rancher won, that opened the Office of Hawaiian Affairs election to anyone registered in the state. From there, control of OHA and the Ceded Lands started slipping from native Hawaiian hands [1].
The second court case took place In Puerto Rico in 2016. After the foreclosure crisis and some hurricanes, Puerto Rico needed to declare bankruptcy. Mr. Olson’s deputy at Gibson Dunn, a man named Mr. McGill, represented California investors who owned Puerto Rican debt and sued the islands to get their money. After Mr. McGill won that case, Puerto Rico came under more control of the U.S. congress and was trapped in a debt crisis for years [2].
The third court case took place in Guåhan (Guam) in 2019. Like the rancher in Hawai’i, a retiree from Maine wanted to vote in the CHamoru plebiscite even though he was not CHamoru. Gibson Dunn represented him in this “voting rights” case. When the retiree won, that opened up voting to anyone in Guam, and created an opportunity for a second lawsuit challenging CHamoru control of their land trust [3].
The third court case took place across the entire United States. Mr. McGill of Gibson and Dunn represented the plaintiffs in Haaland v. Brackeen, against the federal government and 486 Native American Tribes. The case was seemingly about “equality” and “racism” around who can adopt Native American children.
Why did 486 tribes get together to stand up to Gibson Dunn’s lawyers? It seems they felt this case was an attack on not just native children, but also land and sovereignty. An Ojibwe Tribe environmentalist wrote, “Gibson, Dunn and Crutcher appear to want to stop Indigenous peoples from protecting their lands.” [4] A Sioux Tribe journalist explained, “the collective rights of a nation and its sovereignty must be weakened or destroyed to gain access to its lands and resources.” [5]
Another journalist explained why Gibson Dunn might be interested in tribal lands and resources, “Gibson Dunn… has represented plaintiffs in several cases that take issue with laws specific to Native communities; Matthew McGill, the lawyer representing the Brackeens, also serves as counsel for a casino company in a federal case arguing that the Washington law limiting sports wagering to tribal entities is discriminatory. Gibson Dunn is known for representing Chevron in the decade-long lawsuit brought by indigenous communities in Ecuador.”
A Cherokee Nation journalist traced support for Haaland v. Brackeen to some hidden foundations [7]. Like the wolf in sheep's clothing in Matthew 7:15, these foundations hid their actions behind friendly-seeming non-profits.
How does all this connect to the voting rights cases that keep popping up in American Samoa?
The first American Samoan case was Tuaua v. United States. This case was argued by Mr. Olson of Gibson Dunn, the same powerful lawyer who represented the rancher in Hawai’i. I'm not sure if Samoans have heard Mr. Olson’s name, but may know the other lawyers he worked with, from an organization called ‘Equally American’.
Mr. Olson and Equally American lost Tuaua v United States in 2015. ‘Equally American’ quickly filed a second American Samoan “voting rights” case, Fitisemanu v. United States. This time, Mr. Olson’s deputy, Mr. McGill of Gibson Dunn argued the case. Mr. McGill was the lawyer who represented California investors against Puerto Rico in 2016. He also argued Brackeen v. Haaland against 486 Tribal nations in 2023.
At this pivotal moment in American Samoa’s history, I believe the fa’aSamoa kept us safe. Like the native American tribes in Haaland v. Brackeen, Samoan matai in American Samoa saw these cases as an indirect threat to the fa’aSamoa and customary lands.
American Samoan US Congress House Reps, Republican and Democrat, from Rep Eni Faleomavaega to Rep Aumua Amata stood up to Equally American and Gibson Dunn lawyers. In 2021, the entire Fono of American Samoa wrote a unanimous resolution against ‘Equally American’.
The Fono eloquently told these special interest lawyers to “cease disingenuously distorting in the federal courts and in national media the history and meaning of federal jurisprudence and statutory law defining the status and rights of Americans born in territories”. This ‘autasi of the Fono was an important factor that convinced the United States courts. Mr. McGill and Equally American lost the second case, just like the first.
After the Fono’s resolution, did the wolf give up? No. The wolf just changed clothes. The non-profit ‘Equally American’ closed its doors and the non-profit ‘Right to Democracy’ opened up. Right now, they have a third American Samoa voting rights case in federal courts.
Right to Democracy say the changes they want for American Samoa’s political status will not harm the fa’aSamoa, the fa’amatai system, or our customary lands. Yet, of all the lawyers in America to choose from, they chose Mr. Olson and Mr. McGill, the exact same lawyers who undermined native Hawaiian control of Trust lands in Rice v Cayetano, undermined Puerto Rican self-determination in Puerto Rico v Franklin California Tax Free Trust, and alarmed Native Americans about tribal sovereignty in Haaland v. Brackeen.
Right to Democracy say that they believe in self-determination. But when the American Samoa Fono issued a unanimous resolution telling them to stop trying to change its political status through the courts, they did not observe the ‘autasi of the Fono. They changed their name, hired some well-intentioned organizers from the Caribbean to build their presence, and went right back to federal court.
Right to Democracy say they are here to unite all the territories and build a broader awareness of all the issues across all the islands. I wish that were true because I want that too. But of all the problems affecting all the territories that could use a good lawyer, they only seem to put on a suit when it’s time to get another American Samoan “voting rights” case before the nine justices of the Supreme court.
Right to Democracy say they are against Deep Sea Mining, and helped with the petition. Yet they don't use their knowledge of government or the law to defend our oceans, just our signatures. Meanwhile, for ten years, their lawyers work closely with Gibson Dunn, the exact same firm that Native Americans fear is trying to undermine indigenous land rights that are in the way of big mining, drilling and oil clients.
I’m not here to present an opinion on the merits of birthright citizenship, voting rights in the diaspora, or the Insular cases. I am here to share some insights into the organization of Right to Democracy. When I look at their legal beliefs, I do not trust them to defend our customary lands and the fa’aSamoa in federal court.
Equally American and Right to Democracy has twice tried to bring American Samoa's “voting rights” before the Supreme Court. Soon, they may try a third time. Samoa tatou, mataala. Think about why Right to Democracy has been so friendly with our islands this year. Pull back the wool from your eyes and you will see the wolf.
Seumalu Dr. Elora Raymond
The author is a scholar of housing and land, and has published on Samoan customary lands. The views she represents are her own and not those of her University.
[2] Dayen, David. (2016, June 2) “Will Congress Thwart Puerto Rico’s Best Chance for Relief?,” The American Prospect. Retrieved from: https://prospect.org/justice/will-congress-thwart-puerto-rico-s-best-ch…
[3] (n.d.) Challenge to CHamoru Self Determination – Davis v. Guam. Guamapedia. Retrieved from: https://guampedia.com/challenge-to-chamoru-self-determination-davis-v-g…
[4] LaDuke, W. (2024, October) The New Indian Wars: Gibson, Dunn and Crutcher. The Circle News. Retrieved from: https://thecirclenews.org/environment/the-new-indian-wars-gibson-dunn-a…
[5] Estes, N. (2021, August 23). Why is the US right suddenly interested in Native American adoption law? The Guardian. Retrieved from: https://www.theguardian.com/commentisfree/2021/aug/23/why-is-the-right-…
[6] Lurie, J. (2022, November 7). Why Are Right-Wing Groups Targeting a Law Aimed at Protecting Native Families? Mother Jones. Retrieved from: https://www.motherjones.com/politics/2022/11/supreme-court-indian-child…
[7] Nagle, R. (2021, September 20). Trojan Horse. Crooked Media. Retrieved from: https://crooked.com/podcast/6-trojan-horse/
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