American Legal History
5/15/2010: I have completed my project for the purposes of this class, and it is ready to be graded. However, I might continue to add or upload any relevant information/ analysis. Note that my revised essay is mid-way down the text of the wiki page. Thanks, AJK.

I am exploring the intersection of land policy and the cultural, social and political history of Guam, focusing on the US imperial project from the late-19th to mid-20th century. The overriding value of the territory to the US has been its strategic location in the Western Pacific. The martial logic of possessing the island has exerted a gravitational pull on the island's economic geography, as land owned by the indigenous Chamorro has gradually been transferred to the US govt/ military, through "conquer," tax default, eminent domain and outright purchase.

This process of acquisition is significant given traditional Chamorro conceptualizations of land. It has been imputed mythic/ religious importance as part of the spiritual fabric of the community. In addition, the Chamorro typically assigned collective ownership to village property. Thus, capitalization of land -- and with it, fragmentation -- has been a catalyst in Guam's transformation from an interdependent to an increasingly nuclear/ individualistic society. I also intend to look at some of the symptoms of this transition, e.g. an exponential increase in rates of youth "delinquency" (a word/ notion previously not part of the Chamorro lexicon in "pre-contact" Guam). I also intend to examine how land dislocation traces Guam's transition from a primarily agricultural economy to one based on tourism and serving the needs of the US military. I am looking for parallels between Guam's coloring as a geopolitical nexus and that of the Caribbean islands in the 17th century Atlantic world, e.g. conceptualizing military capability as a unit of economic/ political utility a la sugar.

In the earlier part of the 20th century, land fragmentation/ dislocation mostly reflected a tax on land aimed to divide inefficiently large land tracts and tend to economies of scale in local agriculture. This tax has largely been characterized as unsuccessful. In part because the tax didn't accurately respond to market values, making default common. However, I'm also interested in the application of the "release of energy" principle to the Pacific context. For example, one question I'm thinking about is if the "release" principle is historically contingent or requires a certain economic/ political culture, e.g. in the way that some political theorists contend democracy requires a given level of civic association. Maybe Guam's traditional flavor as a status-oriented, communal society is less receptive to market forces in real estate.

Another legal policy of interest, connecting land dislocation to the capitalization of Guam's economy, is the devaluation/ under-valuation of locally-held land and the "triple wage system" effected until the second half of the 20th century (Chamorro were mandated to receive lower wages than locally-hired "Americans" or Americans brought from the continental US). It's interesting that the Guamanian standard of living and purchasing power were purposely limited by the US govt. I hope to tend closer to Edmund Morgan's brand of historical materialism than a Leninist-imperialist modality, but these sorts of policies do reflect a kind of imperialist attitude to their own territory from the United States.

By mid-century, less than half of Guam's land was privately owned by Chamorro. The island was also devastated by fighting in the Pacific Theatre during World War 2. As a result, many locals were without land. Again, their situation was exacerbated by the fact that written deeds etc were not historically part of the legal culture of property. I also intend to write on how debate over land claims was important to the passing of the Organic Act of 1950, a culmination of protests for Guamanian political autonomy.

Still, the Chamorro adapted well to structural changes in land use. Modifications in Chamarro architecture/ building constuction are indicative of their attempt to maintain a communitarian social ethos despite fragmentation, e.g. use of open space or courtyards to invite public intercourse.

My intuition thus far is that Guam's legal-social development doesn't so much reflect a concerted US policy, but perhaps the opposite. Generally Washington DC was simply indifferent to Guam, e.g. as suggested by its status as an uncorporated territory. In a way, this sort of silent re-structuring of Guamanian society was more upsetting to the Chamarro. I may look briefly at this motif, with respect to Guamanian poetry centered on land and un-status, as well as some nomenclature issues, e.g. relate to Iriquois, "boondocks" from Tagalog.

So far I've looked mainly at secondary sources, anthologies of primary sources (Chamarro perspectives; legislative debate and history) and some primary docs of the US govt describing land and legal contexts of the island. Some of the primary sources border on memoir - I wonder if I should include some discussion of the relationship of memory to history.

Some sources: An Island in Agony, Tony Palomo (Self-published, 1984) Guam: A Nomenclatural Chronology, Marjorie G. Driver (Micronesian Area Research Center, University of Guam, 1985) Destiny's Landfall: A History of Guam, Robert F. Rogers (Univ of Hawai'i Press, 1995) Justice on Guam: A Historical Review, Anthony P. Sanchez Insights: The Chamorro Identity, anthology (published by Political Status Education Coordinating Commission as Mandated by Public Law 20-99, 1993) We Fought the Navy and Won, A Personal Memoir, Doloris Coulter Cogan (Univ of Hawai'i Press, 2008) A Complete History of Guam, Paul Carano and Pedro C. Sanchez (Charles E. Tuttle Company, 1964) Issues in Guam's Political Development: The Chamorro Perspective, anthology (published by Political Status Education Coordinating Commission as Mandated by Public Law 20-99, 1996) Archaeology and History of Guam (National Park Service, Dept of the Interior 1952) A Study of 8 post-WW2 Resettlement Villages on Guam, Rosalind L. Hunter-Anderson and Darlene R. Moore (prepared for Dept of Parks and Recreation, Division of Historic Resources, Guam, 2006) Land Tenure in the Pacific, anthology (University of the South Pacific, Suva, Fiji, 1987) Guam's Trial of the Century: News, Hegemony and Rumor in the American Colony, Peter DeBeneditis? (Praeger, 1993) A Campaign for Political Rights on the Island of Guam, 1899-1950, Penelope Bordallo Hofschieder (CNMI Division of Historic Preservation, 2001) Colonizing Hawai'i: The Cultural Power of Law, Sally Engle Merry (Princeton University Press, 2000)

  • I think the problem here, Andrew, is that you haven't focused your inquiry enough to ask an actual question, one with a question mark at the end, that primary sources can help you to answer. You're essentially collecting material for an anthropology monograph on the cultural change associated with US colonization of Guam. That's too large a task for you in this place, and doesn't give enough structure to your inquiry. This is one of the differences between historical inquiry and other forms of social understanding: historical writing takes as its primary object the ascertainment of what has happened. It can be, indeed must be, understood as an interpretive activity: one of our most distinguished historians spent an entire career urging graduate students to "explain a change." But the task of explanation begins from the detailed characterization of the "change," which is a chartable social process unrolling in time.

  • Moreover, we're trying to do legal history, so understanding the legal aspect of the process that concerns us, whatever it is, is salient. The most useful thing you can do, I think, is to ask yourself what question your sources are going to be used to answer. That in hand, you will make rapid progress.

Structural Change?

From 1898 until the mid-1950s, the Chamorro population evolved from being almost exclusively agricultural - marked by a decentralized peopling of the island in the form of a network of "village" or communal living arrangements, centered in a corporatist-collectivist ethos of governance - to a more urban, tertiary economy concomitant with nuclear-family living arrangements. At first blush, these brush strokes tend to the notion of a "structural transformation," a heuristic in development economics meant to capture the process whereby the engine or motive force of a developing country is re-positioned from a traditional elite/ peasant binary model of food production to an educated middle-class capable of sustaining a post-agricultural dynamic. However, Guam in the 1940s or 1950s could not be described as industrial. In fact, it was government policy to purposely inhibit the economic development of the island (see US’ supposed need to control inflationary pressures). The US viewed Guamanian economic self-sufficiency (which effectively required trade for a small island nation) as incompatible with the martial logic of possessing Guam, as a fortress or "Gibraltar" in the security nexus of the Western Pacific. Rather this demographic change from rural, collectivist to semi-rural, nuclear is better understood as tracking the land law of Guam during the first half of the century. My inquiry takes shape along the following questions:

*Why or to what benefit did the US government enact its land policies in Guam?

*And how did land agitation intersect with Guamanian movements for emancipation from martial rule?

Legal-Political Compass

Guam was surrendered to the US following the Spanish-American War, in accord with the Treaty of Paris. Article IX of that treaty stated:

Article IX. The civil rights and political status of the native inhabitants of the territories hereby ceded to the United States shall be determined by Congress.

Executive Order 108-A later placed Guam under the control of the Navy. On 12 January 1899 Navy Secretary Long selected Captain Richard P. Leary as naval governor. Leary received the following instructions:

"Within the absolute domain of naval authority, which necessarily is and must remain supreme in the ceded territory until the legislation of the U.S. shall otherwise provide, the municipal [i.e. Spanish, better characterized as punitive Spanish laws] laws of the territory ... are to be considered as continuing in force ... the mission of the United States is one of benevolent assimilation, substituting the mild sway of justice and right for arbitrary rule. In fulfillment of this high mission ... there must be sedulously maintained the strong arm of authority ..."

from “Destiny's Landfall,” 114 (emphasis added; see also “We Fought the Navy …” 16).

This lexicon of “absolute domain” frames a colonialist association within the talismanic, self-justifying language of the law. Perhaps more ominous is the phrasing of “benevolent assimilation,” a euphemism that evokes the manifest destiny of westward white-American migration as well as certain social policies meant to homogenize or absorb different communities under pretexts of "civilizing" (a la the forced adoption policies of Aboriginal populations within Australia). With the only condition on American military governance being the poetic, though nebulous, compass of the "sway of justice" it is not surprising that e.g. later Captain Leary would pontificate to his marine servicemen how he was the personification of the law: "I have the law. I am supreme" (in the tenor of the benevolent despotism of early modern Europe).

Indeed, this early delegation of power to the military is representative of the narrative of Guam’s legal history (e.g. “War Plan Orange” proposed in 1910 to respond to Japanese threat). From early on Guam’s status would reflect its value as a security data point in the Pacific – as the island would seem to be represented as simply a “thing” or a place rather than a home to an actual people. And the fact that it was a thing remote from Washington D.C. would also have import (see discussions of geography and the law, i.e. law and the river). That Guam was essentially outside the purview of US lawmakers would produce an awkward composite of governance structures on the island: in some ways, the island seemed to be a paradigm of autocratic military rule, where fundamental constitutional protections were withheld from the population and policies were enacted to limit local economic freedom. Indeed, local petitions for such rights started as early as 1901 (see Destiny’s Landfall, 125).

On the other hand, this vacuum of military rule was never quite “filled” by the US navy. Ambiguities and gaps in US’ government policy indicated an orientation to military needs. Aspects of governance outside this purely military logic were thus sometimes superficial.

For example, although land was integral to government policy (see fact that the second general order by an American official on the island was to seize all lands bordering the port of San Luis dApra (Destiny’s Landfall, 115)), mistake and ad hoc rulemaking characterized US land policy in Guam. Three months after his arrival Captain Leary issued General Order No. 15, requiring local landowners to register their lands if they wanted them to be recognized. This order thus produced a sort of Hobson’s choice for the Chamorro – either to register their lands but then lose them because they could not afford the associated taxes or to not register their lands and risk being found out by the government (see article on land use and political history). Such a policy is illustrative of the social and political contexts of the island. First, worth noting is the traditional value imputed to land in Chamorro society. I agree it is bad scholarship to set the turn-of-the-century Chamorro too firmly in an anthropological ontology or as a pre-contact people somewhat static or separate from the telos of History. Still, there seems to be some truth to the claims (see Western historians and revisionist Chamorro historians/ social thinkers in bibliography/ web links) that the Chamorro did not seem to attach economic value to the substance of money (contra Keynes). And although land was highly appreciated; some commentators have still distinguished Chamorro land use in noting that it lacked exchange value (see introduction to “Land Tenure in the Pacific”). This distinction reflects a communitarian, almost spiritual, ethos often ascribed to land in non-Western societies. Indeed, the architectural history of twentieth century Guam is marked by this need to incorporate communal living within the new kind of Western, single-family style housing that has evolved simultaneous to land fragmentation (see article on post-WW2 resettlement). This worldview of unalienable, shared land use would be problematic in relation to US' registration requirements, as it was not usually easy to point to written records. The US was able to cite these “mistakes” or gaps in the land record as reason to declare it government property.

This early land law is also indicative of the ad hoc, awkward policymaking that marked US’ rule. Compounding this register/don’t register dilemma was that the land tax was not properly scaled to the Guamanian economy. The Board of Appraisement was charged with determining the value of land for tax purposes, and “although rates were changed in 1903, 1910 and 1925” (see Guam, “Land Tenure in a Fortress” 213), these “rates did not keep pace with market value or income.” What is potentially surprising is that the US government acquired more land from tax defaults than e.g. use of eminent domain/ citing military need.

Still, it somewhat unfair to intimate at a military/ rule of law binary for governance of the island. Congress seemed to be complicit (if only because of indifference) with military rule. Congress per the Treaty of Paris could have imposed a corrective to the excesses of the naval government if they chose to (see excesses that, for example, included the use of a “dual” or later “triple wage system” that legally required local Chamorro to receive less pay for the same work (in violation of equal protection of the law) (see e.g. “Island in Agony”); see also laws against work absenteeism (consistent with class discussion of Pinkerton/ Homestead Strike) in violation of substantive due process). Instead, the image portrayed by the (lack) of historical evidence is that Congress was indifferent to Guam’s plight.

Per the Insular Cases, the Supreme Court held that the Constitution was inapplicable to the territories (era of “reverse incorporation”). It made two further distinctions that specifically removed Guam from the ambit of its scope. Justice White provides an “incorporated/unincorporated” dichotomy founded in the logic of separating those territories that may potentially become a state (Downes v. Bidwell, 21 S.Ct. 770, 798 (1901); Guam would remain an unincorporated territory). The Insular Cases would also clarify a distinction between “organized” and “unorganized” territories, the latter (a la Guam) having not yet received an “organic act” to establish local self-government (“Destiny’s Landfall,” 126). Some historians have considered a racial logic to be at work in this denial of Guam’s constitutional protections. Although I agree that there was certainly elements of racism in American rule of Guam (evidenced by e.g. segregation in jobs and housing, also miscegenation laws (that were still not taken very seriously by young servicemen)), race could not have been the dispositive factor in determining why the Chamorro were not permitted to be citizens, given that Puerto Rico and the US Virgin Islands were both granted US citizenship by the 1920s (see e.g. It would seem that this same racial animus would affect all of these similarly situated islands. Instead, my intuition is that the main reason Congress did not try to moderate or overrule the Insular Cases vis-a-vis Guam was simply that they were indifferent or unaware of Guam's plight, an example of "out of sight, out of mind," given their remote distance across the Pacific.

Although I've come across different petitions from Guamanians to Congress, I haven't really identified any sources of Congress discussing whether to give Guam citizenship. The situation is sort of the reciprocal of the 1763 Royal Proclamation, where a lack of historical evidence could be attributed to Appalachian setters simply ignoring the law. Here, the rule makers themselves ignored the Insular Cases and their connection to Guam, to the frustration of those ruled.

The Organic Act and Land

After WW2 there was a renewed push for self-governance in Guam. Again, this movement is connected to the historical themes of balancing security and civil rights, as well as land as a prism for local rule. There is an important temporal aspect at play here. In class, we discussed how the major world-historical questions (e.g. whether to have a civil war) are decided by political rather than legal calculi. This same thinking might be animating the words of Admiral Pownall when he stated in October 1947 that he favored citizenship for Guamanians and that their citizenship was “a matter of law” (“We Fought the Navy…” 97). It is significantly easier for a naval official to make such a claim after a war rather than before.

Worth emphasizing is that discussion of land autonomy continued to guide this debate on citizenship and constitutional protection. Land mismanagement persisted into the 1940s. Land compensation (for both usurped and destroyed/bombed lands) was viewed as more problematic than land acquisition (though citing “military need” for e.g. public beaches didn’t go over well, see “We Fought the Navy…” 117; see also article on “Walkout” at 60). For example, the same inflationary worries that required a stratified wage system also meant paying the Chamorro in 1947 at prices based on 1941 appraisal records despite 100% inflation (“Destiny’s Landfall,” 215). Still, I was surprised by how much emphasis I found on land policy as opposed to e.g. oppression per civil-political freedoms such as freedom of the press. Perhaps this reflects broader contestations over the universality of human rights norms, e.g. notions that things like “freedom of speech” are bourgeois rights, or that people have a social duty to be stewards of the land rather than a personal right to exploit it. However, important to this debate over the passage of the Organic Act of 1950 also seemed to be the pervasive fear that the US military government was able to act arbitrarily (see article on “Walkout”). Thus, perhaps land is better recognized as a focus for how military rule conflicted with notions of due process, rather than a right hierarchical to other constitutional protections. In any event, after a half-century of – at least attempted – absolute domain over the island, Section 28 of the Organic Act would specify the (re)transfer of all government lands not specifically claimed by President Truman to the new Government of Guam (see the Organic Act, 64).


Webs Webs

Attachments Attachments

  Attachment Action Size Date Who Comment
pdf 1937_Bordallo_report.pdf props, move 2093.4 K 31 Jan 2010 - 19:33 AndrewKerr  
pdf KIC000001.pdf props, move 3429.1 K 04 Dec 2009 - 04:58 AndrewKerr  
pdf KIC000014.pdf props, move 5860.0 K 04 Dec 2009 - 19:16 AndrewKerr post-WW2 resettlement and history of housing
pdf island_in_agony.pdf props, move 2851.1 K 04 Dec 2009 - 19:13 AndrewKerr  
pdf land.pdf props, move 5021.7 K 31 Jan 2010 - 19:30 AndrewKerr article on land use and political history of land
pdf land_tenure_in_pacific.pdf props, move 3333.9 K 04 Dec 2009 - 19:14 AndrewKerr  
pdf navy1926.pdf props, move 5900.7 K 04 Dec 2009 - 19:14 AndrewKerr  
pdf navy1947.pdf props, move 2377.4 K 04 Dec 2009 - 19:14 AndrewKerr  
pdf navy1948.pdf props, move 5875.1 K 04 Dec 2009 - 19:15 AndrewKerr  
pdf nomenclature.pdf props, move 2466.4 K 04 Dec 2009 - 19:15 AndrewKerr  
pdf organic_act.pdf props, move 3853.4 K 31 Jan 2010 - 19:32 AndrewKerr transcription of 1950 Organic Act
pdf parkservice1952.pdf props, move 3432.9 K 04 Dec 2009 - 19:11 AndrewKerr  
pdf walkout.pdf props, move 5845.3 K 31 Jan 2010 - 19:09 AndrewKerr article on Guam congressional walkout in 1949/ Organic Act
r14 - 07 Sep 2011 - 00:19:06 - IanSullivan
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