Scholarship and Advocacy Update

Scholarship and Advocacy Update:  Davis v. Guam and the Erasure of Historical Harms

By Susan Serrano, Associate Director

On Wednesday, October 10, 2018, Julian Aguon, ’09, an international human rights attorney, adjunct law professor, author, and former Post-Juris Doctor Research Fellow with Ka Huli Ao, will argue before the Ninth Circuit Court of Appeals sitting in Honolulu.  Julian is lead counsel in Davis v. Guam, defending Guam’s decolonization process and the right of the native inhabitants to express, by plebiscite, their views regarding their desired future political relationship with the United States. 

In Davis, Arnold Davis, a white Guam resident, represented by anti-affirmative action and conservative election attorneys, sued Guam for alleged violations of the 14th and 15th Amendments to the U.S. Constitution. He contended that Guam’s Decolonization Registry Law unlawfully discriminates by prohibiting him from registering to participate in a future decolonization plebiscite in which “native inhabitants of Guam”—those who became U.S. citizens pursuant to Guam’s 1950 Organic Act and their descendants—will express their views about their preferred political relationship with the U.S. (independence, free association, or statehood). In an opinion devoid of historical context, the District Court of Guam held that Guam unlawfully used ancestry as a “proxy for race.”

As I contend in a forthcoming law journal article, the Davis case is yet another “reverse discrimination” lawsuit in the style of Rice v. Cayetano, in which the U.S. Supreme Court ruled that a Native Hawaiian voting limitation was an unlawful proxy for race. As in Rice, Davis and his supporters deploy a twisted civil rights paradigm that ignores the history of colonization and discounts the difference between concepts of equality and Indigenous self-determination. And like the Supreme Court’s modern anti-affirmative action cases, Davis and his attorneys treat all classifications as the same—whether they are designed to end an oppressive system or to perpetuate it.

On Thursday, October 11, Julian will speak at Ka Huli Ao’s Maoli Thursday event, “Davis v. Guam and the Death Knell of Difference: A Conversation with Julian Aguon,” from 11:45am to 1:00pm in Classroom 2.  I will also speak on a panel with Julian at the Western Law Teachers of Color/Conference of Asian Pacific American Law Faculty joint conference, “Coalitions of Color and the Rule of Law in the Trump Administration,” on the implications of Rice v. Cayetano and Davis v. Guam at the University of Nevada, Las Vegas William S. Boyd School of Law on October 19.