CLTC: Justice Dept. has no right to sue GovGuam

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L-R: Government of Guam Special Assistant Attorneys General Mike Phillips and Kenneth D. Orcutt answer media questions at US District Court in Hagatna, Guam on Thursday, November 29, 2018.

Guam – Racial discrimination on Guam? Defendants say not so! Chamorro Land Trust Commission attorneys were in District Court this morning for a hearing on the US government’s lawsuit alleging the commission’s Chamorro-only leases violate the Fair Housing Act.

If nothing else, the Attorney General’s special counsels are reassured that the presiding judge is thoroughly informed on Guam’s exceptional history, specifically that the “Chamorro persons” designation is technically a legal and political one through the 1950 enactment of the Organic Act of Guam.

“That’s the authority,” Special Assistant Attorney General Mike Phillips said. “It’s the enactment. With one sweep of a pen, everybody on Guam, no matter what your race was, became a US citizen and the term used, Chamorro, the judge made a big deal about that. The term used is Chamorro, but the definition is a political definition. That’s really our argument. It’s really a political definition. It’s not a racial classification at all.”

That point remains up for argument, but if anything’s for certain, the US Territory of Guam’s indigenous and local rights advocates are still paying close attention to federal cases that challenge culturally sensitive exceptional situations and are standing their ground against the assertion that the government of Guam can even be sued by the Justice Department in the first place, much less be brought to trial, in this case for violations of the Fair Housing Act on specially designated lands.

“We start out with the idea that you can’t sue a government,” Special Asst AG Kenneth D. Orcutt said. “‘The king can do no wrong’ goes all the way back to England.

“Cities don’t have sovereign immunity, private persons don’t have sovereign immunity, but states and territories do.

“And so the question today was ‘Did Congress intend to subject states and territories to liabilities for money damages?’ We say no. The United States  says yes.”

But the defendants are going a step further, saying that, as with the 1921 Hawiian Homes Commission Act, Congress has already ceded local control over land to the government of Guam. And that it therefore respects exceptions to the Fair Housing Act

“We believe that Congress has authorized the Chamorro Land Trust Act,” Orcutt  said. “It did through the enactment of the Organic Act.”

Meanwhile, the judge is cautioning plaintiffs and defendants to keep their options open, that all attorneys involved should really think through whether they want this case to go to trial.

“Not at this point,” Phillips said. “All of our clients were unanimous that there was not intent to settle this as a compromise to [the] Chamorro Land Trust –the commission’s activities– in any way.”

“And there’s no legislative history, nothing in the statute itself to indicate that Congress intended to allow states and territories to be sued,” Orcutt  said.

US attorneys did not meet with media gathered outside the federal courthouse immediately following proceedings, as defense attorneys did on their way to the facility’s parking lot.

Thursday morning’s Chamorro Land Trust Commission federal hearing was attended by the likes of CLTC Chairwoman Pika Fejeran and Acting Speaker and Committee on Culture and Justice Chair Sen. Therese Terlaje (D). Fejeran and Terlaje were seen leaving District Court together, following proceedings.

Terlaje was missing a delayed 9:00 a.m. session at a local legislature that was still struggling to garner quorum even after 10:00 a.m. Legislative Counsel and Chamorro plebiscite defense lawyer Julian Aguon attended court this morning, too. Their presence at court suggests just how important this hearing is to those who seek to defend local and indigenous land rights against a federal lawsuit that says the Chamorro Land Trust violates the Fair Housing Act by way of racial discrimination.