Self-Determination Challenges to Voter Classifications in the Marianas After Rice v. Cayetano: A Call for a Congressional Declaration of Territorial Principles
Nicole Manglona Torres*
INTRODUCTION ...... 153 I. HISTORICAL BACKGROUND: THE POLITICAL EVOLUTION OF THE CNMI AND GUAM ...... 159 A. The Case of the CNMI and Article XII ...... 160 B. The Case of Guam and the Political Status Plebiscite ...... 165 II. CURRENT CHALLENGES TO VOTER CLASSIFICATIONS IN THE CNMI AND GUAM ...... 170 A. The CNMI’s NMD Voter Classification ...... 173 B. Guam’s Native Inhabitants Voter Classification ...... 185 III. A CALL FOR TERRITORIAL PRINCIPLES TO RESOLVE CONSTITUTIONAL CHALLENGES AND DISPARATE TREATMENT OF UNINCORPORATED TERRITORIES ...... 191 A. Guidance from the UNDRIP ...... 193 1. Right to Self-Determination ...... 195 2. Right to Internal Autonomy or Self-Government ...... 196 3. Right to Practice and Preserve Culture and Customs ...... 197 4. Right to Own, Use, Develop, and Control Land ...... 198 B. Applying the Principles in Resolving Territorial Issues ...... 199
* J.D. Candidate, William S. Richardson School of Law; B.A., University of San Francisco. Sumen dangkulo na si yu’os ma’åse’ para i familia siha pot i guinaya, pinasensia, yan i konsehon miyo siha. I am also grateful to my mentors at the Richardson School of Law, University of San Francisco, and St. Mary’s College of California for their unwavering support during my undergraduate and law school journey. Mahalo to Professor Melody K. MacKenzie for her invaluable guidance in Second-Year Seminar and for insightful feedback on this comment. Many thanks to Julian Aguon, Esq., Adjunct Professor in the Political Science Program at the University of Guam; Leevin T. Camacho, Esq.; and Rose Cuison Villazor, Professor of Law at the University of California, Davis, for sharing their expertise and knowledge on territorial issues and laws; Professor Avis Po‘ai for her Bluebook expertise; Ana Won-Pat Borja (Richardson School of Law, Class of 2012) and Ed Pocaigue for their gracious research assistance; and the APLPJ editing team for their feedback and suggestions. I am also forever indebted to the Harry S. Truman Foundation for igniting my interest in territorial policies and for supporting me throughout law school. This comment is dedicated to the people of the Marianas. Biba taotao Marianas! 2012 Torres 153
CONCLUSION ...... 201
INTRODUCTION “Ancestry can be a proxy for race.”1 This destructive statement in Rice v. Cayetano2 has awakened native communities across the United States. Specifically, it has awakened native communities in the unincorporated U.S. territories of the Commonwealth of the Northern Mariana Islands (“CNMI”) and Guam, in their exercise of self- determination. Rice has been viewed as a case that is “so clear and . . . unequivocal . . . boldly stand[ing] for the proposition that you cannot limit the right to vote . . . along any ancestral lines.”3 Rice involved a constitutional challenge to the Office of Hawaiian Affairs’ (“OHA”) trustee voter classification, which limited voting to persons of Hawaiian ancestry.4 The U.S. Supreme Court characterized the OHA trustee voter classification as race-driven in its effect5 and invalidated the restriction based on the Fifteenth Amendment of the U.S. Constitution.6 It is thus critical to analyze the constitutional challenges to the voter classifications in the CNMI’s Article XII plebiscite7 and Guam’s political status
1 Rice v. Cayetano, 528 U.S. 495, 514 (2000). 2 Id. 3 Famoksaiyan, Julian Aguon—Guam’s Quest for Decolonization, YOUTUBE (Nov. 18, 2011), http://www.youtube.com/watch?v=Jr8-uRHo30k (capturing Julian Aguon’s speech about decolonization on Guam, which briefly distinguishes Rice from Guam’s “native inhabitants” voter classification for Guam’s political status plebiscite, and will be discussed in further detail infra in section B of Part II). 4 Rice, 528 U.S. at 499. To be considered a person of Hawaiian ancestry, one must satisfy the requirements for one of two definitions—native Hawaiian or Native Hawaiian. A native Hawaiian is one who meets the fifty percent blood quantum requirement of the “races” that inhabited Hawai‘i prior to 1778. HAW. REV. STAT. § 10-2 (1993). The broader term “Native Hawaiian” is a descendent of the aboriginal peoples of the Hawaiian Islands in 1778 and thereafter continues to reside in Hawai‘i. HAW. REV. STAT. § 10-2. 5 Rice, 528 U.S. at 515. 6 Id. at 499. 7 See generally Ferdie de la Torre, US Citizen Sues to Be Allowed to Vote on Article 12 Issue, SAIPAN TRIBUNE, Jan. 4, 2012, http://www.saipantribune.com/newsstory.aspx?cat=1&newsID=115443. Article XII of the Commonwealth of the Northern Mariana Islands (“CNMI”) Constitution restricts land ownership to persons of Northern Marianas descent (“NMD”). N. MAR. I. CONST. art. XII, §§ 1, 4. [hereinafter CNMI CONST.] Section 805 of Article VIII of the Covenant to Establish a Commonwealth of the
154 Asian-Pacific Law & Policy Journal Vol. 14:1 plebiscite8 in light of Rice’s constitutional challenge to OHA’s trustee voter classification.9 Examining the constitutional challenges to the voter classifications in the CNMI’s Article XII plebiscite and Guam’s political status plebiscite requires a close examination of the specific definitions involved in those plebiscites. Under section 5(c) of Article XVIII of the CNMI Constitution, voter eligibility for CNMI’s Article XII plebiscite is limited to “persons of Northern Mariana descent” (“NMD”).10 Article XII of the CNMI Constitution implements a fundamental and unique land alienation provision in section 805 of the Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States of America (“Covenant”), which limits land ownership in the CNMI to persons of NMD.11 The definition of NMD is based on race-neutral
Northern Mariana Islands in Political Union with the United States of America (“Covenant”), an agreement through which the CNMI entered into a political relationship with the United States, requires the CNMI government to restrict land ownership to persons of NMD for twenty-five years after the termination of the United Nations Trusteeship Agreement (“Trusteeship Agreement”). Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States of America art. VIII, § 805, Pub. L. No. 94-241, 90 Stat. 263, 275 (1976) (codified at 48 U.S.C. § 1801 note) [hereinafter CNMI Covenant]. Because the restriction expired in 2011, NMDs will vote on whether or not to retain the land alienation provision in a future plebiscite. Id. See infra Part I.A. for background on the Covenant and section 805. 8 See Zita Y. Taitano, Plebiscite Lawsuit Filed, MARIANAS VARIETY, Nov. 22, 2011, http://www.mvguam.com/index.php?option=com_content&view=article&id=209 44:plebiscite-lawsuit-filed&catid=59:frontpagenews. 9 I discuss voter classification challenges in the CNMI and Guam because they make up the Mariana Islands. See infra Part I for more background on the islands. 10 CNMI CONST. art. XVIII, § 5(c). Section 4 of Article XII of the CNMI Constitution defines a person of NMD as “a citizen or national of the United States . . . who is of at least [25 percent] Northern Marianas Chamorro or Northern Marianas Carolinian blood or a combination thereof or an adopted child of a person of [NMD] if adopted while under the age of eighteen years.” One who was born or domiciled in the CNMI by 1950 or was a citizen of the Trust Territory of the Pacific Islands before the termination of the Trusteeship in 1986 is also considered a full-blooded NMD. CNMI CONST. art. XII, § 4. The NMD registry requires the Commonwealth Election Commission (“CEC”) to maintain official records of persons of NMD and produce the “Official Northern Marianas Descent Identification Card.” 2011 N. Mar. I. Pub. L. 17-40, § 2. 11 CNMI Covenant, supra note 7, art. VIII, § 805, 90 Stat. at 265. There is currently a petition to include the question of whether or not to maintain
2012 Torres 155 principles, such as place of birth, domicile, and incorporation.12 Guam also limits voting on its political status plebiscite to “native inhabitants of Guam,” based on the race-neutral principles of time and citizenship.13 These definitions will be analyzed in greater detail in Part III, infra. The political statuses of Hawai‘i, the CNMI, and Guam are also significant in distinguishing the voter classifications in the CNMI and Guam from the OHA trustee voter classification. Because Hawai‘i is a state, the U.S. Constitution fully applies; the CNMI and Guam, however, are both unincorporated U.S. territories,14 where only fundamental personal rights are guaranteed.15 The constitutional analyses for the CNMI and Guam would thus differ from that of Hawai‘i.16
Article XII on the ballot this year. The petition is open to all registered voters in the CNMI, not solely persons of NMD, which, on its face, contradicts the CNMI Constitution. Haidee V. Eugenio, Signature Campaign to Put Article 12 in Ballot Begins, SAIPAN TRIBUNE, Apr. 2, 2012, http://www.saipantribune.com/newsstory.aspx?newsID=117761&cat=1. 12 ANALYSIS OF THE CONSTITUTION OF THE COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS 163 (1976), available at http://www.nmihumanities.org/update/file/Analysis%20of%20NMI%20Constitut ion,%201976.pdf. 13 1 GUAM CODE ANN. §§ 2101-2102 (2011). A “native inhabitant” is one who became a U.S. citizen during the enactment of the 1950 Organic Act of Guam (“1950 Organic Act”) and descendants of those citizens. Id. § 2102. 14 Unincorporated territories are not designed to eventually transition into statehood, whereas incorporated territories may transition into becoming a state. Jon M. Van Dyke, The Evolving Legal Relationships Between the United States and its Affiliated U.S.-Flag Islands, 14 U. HAW. L. REV. 445, 449-50 (1992). The CNMI and Guam are both unincorporated territories. Though both unincorporated territories, the political status of the CNMI and Guam differ from each other because Guam is designated as an “organized” territory and the CNMI is a commonwealth. Id. at 450-51. An organized territory is established under an organic act of Congress, but a commonwealth is a relationship developed under a “written mutual agreement.” U.S. Department of Interior Office of Insular Affairs, All OIA Jurisdictions, available at http://www.doi.gov/oia/islands/politicatypes.cfm. A commonwealth acquires its authority from the U.S. Congress and the citizens of the territories and has a more flexible political relationship and self-government. Van Dyke, supra, at 451. 15 The Insular Cases, comprised of several U.S. Supreme Court cases, determined that only fundamental rights apply in unincorporated U.S. territories, like the CNMI and Guam. N. Mar. I. v. Atalig, 723 F.2d 682, 688-89 (9th Cir. 1984) (citing Balzac v. Porto Rico, 258 U.S. 298 (1922); Dorr v. United States, 195 U.S. 138 (1904); Hawaii v. Mankichi, 190 U.S. 197, 216-18 (1903)). What is “fundamental” in the territorial context is that which is the “basis of all free government.” Atalig, 723 F.2d at 690 (quoting Dorr, 195 U.S. at 146-47).
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The current political statuses of the CNMI and Guam also differ significantly. As two sovereigns, the CNMI and the United States entered into a political relationship through the Covenant.17 Guam entered into a political relationship with the United States through the 1950 Organic Act of Guam (“1950 Organic Act”).18 Unlike the CNMI’s inherent right of self-government,19 Guam does not have the right of self-government and comes under the direct authority of the United States20 While the CNMI- U.S. relationship is established through a covenant, Guam does not share the same relationship and has yet to determine its relationship with the United States. Although not binding, Guam’s political status plebiscite is a step towards resolving the political status issue by recognizing the desires of the native inhabitants.
The late Ramon G. Villagomez, a former delegate to the first and second CNMI Constitutional Convention and a former CNMI Supreme Court Justice, wrote an opinion in response to a 2000 opinion advanced by the Saipan Tribune, which declared doomsday for the CNMI’s Article XII in view of the U.S. Supreme Court decision in Rice, and briefly discussed key political differences between Hawai‘i as a state and the CNMI as an unincorporated territory that affect the application of the U.S. Constitution. Ramon G. Villagomez, Opinion, Rice vs Cayetano and Art. XII, SAIPAN TRIBUNE, Mar. 3, 2000, http://www.saipantribune.com/newsstory.aspx?cat=3&newsID=6008; Tribune Staff, Opinion, Hawaii Vote Restriction Struck Down, SAIPAN TRIBUNE, Feb. 25, 2000, http://www.saipantribune.com/newsstory.aspx?newsID=5893&cat=3. While in law school, Joseph N. Camacho, now a CNMI judge for the superior court, expanded the late Justice Villagomez’s analysis in an unpublished capstone paper. Joseph James Norita Camacho, The Commonwealth of the Northern Mariana Islands’ Land Alienation Law and Why the United States Supreme Court’s Holding in Rice v. Cayetano Does Not Apply to the CNMI’s Initiative 11-1, a CNMI Law That Restricts Voting on Land Issues to Indigenous CNMI Voters (2001) (Unpublished capstone, Gonzaga University School of Law) (on file with author). My analysis expands Judge Camacho’s capstone by discussing in-depth the applicable constitutional provisions, as it relates to the pending lawsuit challenging the voter classification in 5(c) of Article XVIII of the CNMI Constitution. 16 Judge Camacho’s capstone briefly distinguished section 805 of Article VIII of the CNMI Covenant from OHA’s trustee voter classification. Camacho, supra note 15, at 31-34. 17 CNMI Covenant, supra note 7. 18 PEDRO SANCHEZ, GUAHAN GUAM: THE HISTORY OF OUR ISLAND 302, 304-05 (1988) 19 The CNMI’s right of self-government is embedded in the CNMI Covenant. CNMI Covenant art. I, supra note 7, § 103, 90 Stat. at 264. 20 Congress has authority over Guam through the 1950 Organic Act. 48 U.S.C. § 1421 (2012). 2012 Torres 157
The CNMI’s NMD and Guam’s native inhabitants voter classifications are further distinguishable from the OHA trustee voter classification because of the function of the classifications. The OHA trustee voter classification in Rice involves a statewide election for state officials, whereas the NMD and native inhabitants classifications serve a political purpose. The NMD classification is specifically intended for the political question of whether persons of NMD want to continue land alienation restrictions in the CNMI.21 Similarly, the native inhabitants classification will be used to determine the desire of Guam’s native inhabitants as to their future relationship with the United States in a prospective political status plebiscite.22 The challenges to the voter classifications in the CNMI and Guam also differ from each other. In the CNMI challenge, Davis v. Commonwealth Election Commission, plaintiff John H. Davis, Jr., a U.S. citizen and registered CNMI voter and resident, maintains that an NMD voter classification in section 5(c) of Article XVIII of the CNMI Constitution23 and the NMD registry in Public Law 17-4024 violate the Fourteenth and Fifteenth Amendments of the U.S. Constitution.25 The federal district court judge for the CNMI dismissed, without prejudice, the NMD lawsuit for lack of subject matter jurisdiction.26
21 CNMI CONST. art. XVIII, § 5(c). 22 1 GUAM CODE ANN. §§ 2101-2102 (2011). 23 CNMI CONST. art. XVIII, § 5(c). In 1999, the CNMI Legislature passed Senate Legislative Initiative 11-1, as implemented in section 5 of Article XVIII of the CNMI Constitution, to restrict voting on Article XII amendments to persons of NMD. Id. 24 2011 N. Mar. I. Pub. L. 17-40. Section 805 of the CNMI Covenant requires that the CNMI government regulate and restrict land ownership to persons of NMD for twenty-five years after the termination of the Trusteeship Agreement and “may” choose to continue its land restrictions after the first twenty-five years. CNMI Covenant, supra note 7, art. VIII, § 805, 90 Stat. at 275. The Trusteeship Agreement expired in 2011, which means that persons of NMD will soon cast their votes on whether or not to retain the land alienation restrictions. Last year, the CNMI Legislature passed a law to move the NMD registry from the Department of Public Lands to the Commonwealth Election Comm’n. 2011 N. Mar. I. Pub. L. 17-40, § 2(c)(2)-(3). 25 Amended Complaint for Declaratory Judgment & Injunctive Relief at 1-2, Davis v. Commonwealth Election Comm’n, No. 12-00001 (D. N. Mar. I. Jan. 3, 2012). 26 Davis v. Commonwealth Election Comm’n, 2012 WL 2411252, at *7 (D. N. Mar. I. June 26, 2012). Federal courts must have subject matter jurisdiction over a case in order to move forward with the case. FED. R. CIV. P. 12(h)(3). 158 Asian-Pacific Law & Policy Journal Vol. 14:1
In Guam’s voter classification challenge, Davis v. Guam, plaintiff Arnold Davis, a U.S. citizen and registered Guam voter and resident, contends that the definition of “native inhabitants” is intentionally limited to Chamorro native inhabitants of Guam and excludes non-Chamorros, like himself, from voting in the political status plebiscite,27 in violation of the Voting Rights Act of 1965, the Organic Act of Guam,28 and the Fifth, Fourteenth, and Fifteenth Amendments of the U.S. Constitution.29 Trial for the challenge to Guam’s political status plebiscite has been set for September 2013.30 This paper advances the proposition that voter classification challenges are distinct from Rice because of the unincorporated territorial status of the CNMI and Guam, where only fundamental personal rights are guaranteed, and the political functions of the classifications.31 Part I of this paper discusses the political evolution of the CNMI and Guam, particularly the evolution of land ownership in the CNMI and the issue of self-determination in Guam. Part I also assesses the political relationships between the United States and the CNMI, and the United States and Guam. Part II scrutinizes the socio-historical and political definitions of persons of NMD and native inhabitants of Guam in the context of the political history of the CNMI and Guam and relevant case law. It then briefly distinguishes these challenges from the OHA trustee voter classification challenge in Rice. The continuing struggles with self-
27 Opposition & Reply to Motion to Dismiss at 1, Davis v. Guam, No. 11- 00035 (D. Guam Jan. 3, 2012), available at http://www.cir- usa.org/legal_docs/davis_v_guam_mtd_opp.pdf. 28 The Organic Act of Guam was implemented in 1950 and granted U.S. citizenship to inhabitants of Guam prior to August 1, 1950. SANCHEZ, supra note 18, at 304-05. See generally Complaint at 4-5, Davis v. Guam (D. Guam Nov. 21, 2011), available at http://www.cir- usa.org/legal_docs/davis_v_guam_complaint.pdf; see generally Motion to Dismiss at 15, Davis v. Guam, No. 11-00035 (D. Guam Dec. 2, 2011), available at http://www.cir-usa.org/legal_docs/davis_v_guam_mtd.pdf. 29 Complaint, supra note 28, at 6-9. 30 Mindy Aguon, Judge Stays Discovery in Davis’ Plebiscite Suit, Sept. 23, 2012, KUAM NEWS, http://www.kuam.com/story/19619227/2012/09/24/judge-stays-discovery-in- davis-plebiscite-suit. As this article was submitted for publication, the U.S. District Court of Guam heard oral arguments on the dismissal of the case on November 15, 2012. 31 The Insular Cases held that only fundamental rights apply in unincorporated U.S. territories., N. Mar. I. v. Atalig, 723 F.2d 682, 688-89 (9th Cir. 1984) (citing Balzac v. Porto Rico, 258 U.S. 298 (1922); Dorr v. United States, 195 U.S. 138 (1904); Hawaii v. Mankichi, 190 U.S. 197, 216-18 (1903)). 2012 Torres 159
determination underlying the challenge to voter classifications in the Marianas are part of a larger issue of disparate treatment of unincorporated territories. Part III examines the special relationships between the United States and the CNMI and the United States and Guam and Congress’ unique obligation to establish a set of defined principles to guide territorial issues. It argues for Congress’ adoption of coherent territorial principles based on the rights of indigenous peoples in the United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”).32 Part III also demonstrates the varied treatment amongst unincorporated U.S. territories and the compelling need for a territorial doctrine, derived from the UNDRIP, to govern territorial issues that would safeguard against disparate treatment of the territories. These principles could ultimately serve as a significant guidepost for judicial decisions in territorial cases.33 The paper concludes by urging Congress to mitigate the vulnerability of unincorporated U.S. territories to disparate treatment and to constitutional challenges that attack their unique political statuses by adopting clearly defined territorial principles. I. HISTORICAL BACKGROUND: THE POLITICAL EVOLUTION OF THE CNMI AND GUAM Over 4,000 years ago, the ancestors of the Chamorro people, the indigenous people of the Marianas, arrived in the Mariana Islands,34 comprised of fifteen islands, the fourteen Northern Mariana Islands plus Guam.35 Around 1815, people from the Caroline Islands, called Carolinians, sought refuge in the Northern Mariana Islands after a typhoon destroyed their islands.36 Both the Northern Mariana Islands and Guam
32 U.N. Declaration on the Rights of Indigenous Peoples, G.A. Res. 61/295, U.N. Doc. A/RES/61/295 (Sept. 13, 2007), available at http://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf [hereinafter UNDRIP]. 33 In turn, only rational basis scrutiny would apply as a result of the congressional adoption of such principles. 34 SAMUEL F. MCPHETRES, SELF-GOVERNMENT AND CITIZENSHIP IN THE COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS U.S.A. 2 (1997). The Mariana Islands include Guam, Saipan, Tinian, Rota, Aguiguan, Farallon de Mendinilla, Anatahan, Sariguan, Guguan, Alamagan, Pagan, Agrihan, Asuncion, Maug Islands, and Farallon de Pajaros. DON FARRELL, HISTORY OF THE NORTHERN MARIANA ISLANDS 5 (1991). 35 FARRELL, supra note 34, at 5. 36 Carolinians are also considered to be indigenous to the CNMI. Together, the Chamorros and Carolinians are indigenous to the Marianas. 160 Asian-Pacific Law & Policy Journal Vol. 14:1
are unincorporated territories of the United States.37 The Northern Mariana Islands, however, entered into a political relationship with the United States as a commonwealth through a covenant negotiated between the United States and the Northern Mariana Islands as two sovereigns in 1976.38 Guam entered into a relationship with the United States through the 1950 Organic Act.39 The political evolution of the CNMI and Guam are separately discussed infra in sections A and B to distinguish the relationships between the United States and the two territories as they relate to the current challenges to the CNMI’s NMD and Guam’s native inhabitants voter classifications. A. The Case of the CNMI and Article XII Over the span of 300 years, Spain,40 then Germany,41 and finally Japan42 controlled the Northern Marianas Islands before the United States began its “trusteeship” of the territory under the auspices of the United Nations after World War II.43 The end of World War II was a turning point for the Northern Marianas, when the United States signed a trusteeship agreement with the United Nations in 1947 (“Trusteeship Agreement”). The Trusteeship Agreement granted the United States administrative authority over the Trust Territory of the Pacific Islands (“TTPI”),44 which included the Northern Mariana Islands, Pohnpei, Truk, Yap, the Marshall Islands, and Palau.45 Negotiations over the political status of the TTPI
37 Van Dyke, supra note 14, at 449-50. 38 MCPHETRES, supra note 34, at 48. The Covenant was approved by the people of the Northern Mariana Islands in 1975 and signed into law by President Gerald Ford in 1976. FARRELL, supra note 34, at 599; see Act of Mar. 24, 1976, Pub. L. No. 94-241, 90 Stat. 263 (codified in 48 U.S.C. § 1681 (2012)). The entire agreement was fully effective after the Trusteeship ended in 1986. See Proclamation No. 5564, 51 Fed. Reg. 40, 399 (Nov. 7, 1986), reprinted in 48 U.S.C. § 1801 (2012). 39 SANCHEZ, supra note 18, at 302, 304-05. 40 Spain controlled the CNMI from 1668-1898. JAMES B. JOHNSON, LAND OWNERSHIP IN THE NORTHERN MARIANA ISLANDS 2 (1969). 41 Germany ruled the CNMI from 1899-1914. Id. at 3. 42 Japan controlled the CNMI from 1914-1944. Id. at 5. 43 See Rose Cuison Villazor, Blood Quantum Land Laws and the Race Versus Political Identity Dilemma, 96 CALIF. L. REV. 801, 829 (2008) (citing STANLEY K. LAUGHLIN, JR., THE LAW OF THE UNITED STATES TERRITORIES AND AFFILIATED JURISDICTIONS 425-26 (1995)) [hereinafter Villazor I]. 44 MCPHETRES, supra note 34, at 34. 45 ARNOLD H. LEIBOWITZ, DEFINING STATUS: A COMPREHENSIVE
2012 Torres 161 began in 1969. The lack of consensus during substantial debates over land ownership control and use amongst the TTPI leaders, however, led to the Northern Mariana Islands’ separate negotiations with the United States.46 Albeit initially unresponsive,47 the United States finally responded to negotiation-requests from Northern Mariana Island representatives in 1972.48 The people of the Northern Mariana Islands wanted a closer political relationship with the United States,49 and the United States valued the CNMI’s strategic location,50 only 1,500 miles away from Japan.51 After a series of five negotiations between the two sovereigns, members of the Marianas Political Status Commission52 and the U.S. government drafted the proposed Covenant in 1974.53 The people of the Northern Mariana Islands overwhelmingly supported the Covenant with 78.8
ANALYSIS OF UNITED STATES TERRITORIAL RELATIONS 499 (1989). 46 PAUL LEARY, THE NORTHERN MARIANAS COVENANT AND AMERICAN TERRITORIAL RELATIONS 4 (1980). The system of land tenure with the Spanish, German, and Japanese administrations varied. Prior to these administrations, ancient Chamorro society was avuncuclan, a matrilineal-based society. LAWRENCE J. CUNNINGHAM, ANCIENT CHAMORRO SOCIETY 170 (1992). A woman lived in her husband’s clan, but the man inherited the land from the woman or through matrilineage. Id. at 170-71. Under the Spanish administration, the clan-based system of land tenure was transformed into individualized ownership. Camacho, supra note 15, at 11; see CUNNINGHAM, supra, at 170. Under German rule, the individualized system of land ownership continued, recognizing private land rights. JOHNSON, supra note 40, at 3. Unlike the Spanish, the Germans kept land title records and even started a homestead program on Saipan. Id. Under the Japanese government, land titles were supposedly recognized, but the government’s economic interests in developing the agricultural industry trumped any title to land, as the Japanese took land on Rota, without consent of the people of Rota, to pursue economic endeavors. Id. at 10. Local farmers were forced to exchange their rich farm-lands for lands of poorer quality. Id. 47 Id. 48 FARRELL, supra note 34, at 592. Initial negotiations merely discussed the possibilities of the political relationship. Id. 49 LEARY, supra note 46, at 1, 7. 50 Id. at 8-9. 51 U.S. DEP’T OF THE INTERIOR OFFICE OF INSULAR AFFAIRS, NORTHERN MARIANA ISLANDS, available at http://www.doi.gov/oia/Islandpages/cnmipage.htm (last updated Apr. 19, 2012). 52 The Marianas Political Status Commission consisted of Chamorros and Carolinians. See FARRELL, supra note 34, at 597. 53 Id. at 597-98. 162 Asian-Pacific Law & Policy Journal Vol. 14:1
percent approval.54 The Covenant converted the Northern Mariana Islands into a commonwealth and sealed the political relationship between the newly renamed CNMI and the United States in 197655—a defining moment for the people of the CNMI. Not only did it define the CNMI’s relationship with the United States, but it “[provided] for the eventual termination of the trusteeship” in 1986.56 The CNMI subsequently adopted its first constitution in 1977.57 A key aspect of the Covenant negotiations involved land use and ownership. The United States understood the importance of land to the people of the CNMI, after CNMI negotiators objected to the extensive amount of land the United States desired.58 As one commentator states, the land’s “emotional, symbolic[,] and cultural significance . . . transcend[ed] simple economic considerations.”59 In an effort to accommodate the interests of both parties, section 805 of the Covenant included a fundamental land alienation provision.60 Section 805, as implemented by Article XII of the CNMI Constitution,61 expressly recognized “the importance of . . . [land ownership to] the culture and traditions of the people” of the CNMI.62 In implementing the restriction, the Covenant sought “to protect [the people] against exploitation and to promote their economic advancement and self-sufficiency.”63 The drafters of the Covenant structured the land alienation restriction to extend for twenty-
54 Id. at 600. The majority’s approval of the Covenant should not discount the strong opposition to the Covenant from the Carolinian and Tinian communities and businessmen. Id. at 599-600. Section 802 of the Covenant allowed the United States to use lands on Tinian for 100 years. CNMI Covenant, supra note 7, art. VIII, § 802, 90 Stat. at 273. Some of the people in Tinian believed that giving their land up to the United States for 100 years for military purposes was unfair. FARRELL, supra note 34, at 599-600. The strategic importance of Tinian to the United States was evident, as the planes carrying the atomic bombs to Hiroshima and Nagasaki departed from Tinian. Id. at 405-08. 55Id. at 605. 56 Wabol v. Villacrusis, 958 F.2d 1450, 1459 (9th Cir. 1992). 57 COMMONWEALTH LAW REVISION COMMISSION, COMMONWEALTH CONSTITUTION (2012), available at http://www.cnmilaw.org/constitution.htm. 58 LEARY, supra note 46, at 10. 59 Id. 60 CNMI Covenant, supra note 7, art. VIII, § 805, 90 Stat. at 275. 61 CNMI CONST. art. XVIII, § 5(c). 62 CNMI Covenant, supra note 7, art. VIII, § 805, 90 Stat. at 275. 63 Id. 2012 Torres 163
five years after the 1986 termination of the Trusteeship Agreement.64 The Covenant provided that persons of NMD would not only regulate land for twenty-five years, but “may” also continue to regulate land after the twenty-five year period.65 The land alienation restriction to persons of NMD was critical in adopting the Covenant. Article XII of the CNMI Constitution, which implements section 805 of the Covenant, defines a person of NMD as a U.S. citizen or national who (1) is at least twenty-five percent “Northern Marianas Chamorro or Northern Marianas Carolinian blood”; or (2) is a combination of at least twenty-five percent Northern Marianas Chamorro and Carolinian blood; or (3) is an adopted child of an NMD if adopted under the age of eighteen.66 One who is “born or domiciled in the [CNMI] by 1950 and . . . a [TTPI citizen] before the termination of the Trusteeship . . .” in 1986 is considered a “full-blooded Northern Marianas Chamorro or Carolinian.”67 The legislative history of the CNMI Constitution links this requirement to the first definitional requirement of an NMD (that one be at least twenty-five percent Northern Marianas Chamorro or Carolinian) in an example: “if a husband and wife both were domiciled in the [CNMI] by 1950 and both were citizens of the Trust Territory, both are considered . . . 100 [percent NMD] and their children will be 100 [percent NMD].”68 On the other hand, “[i]f a husband was domiciled in the [CNMI] by 1950 and was a citizen of the Trust Territory[,] and his wife was born in the Philippines and was a Philippine citizen, then the husband is 100 [percent NMD,] . . . the wife is [zero percent NMD,]” and the child is fifty percent NMD.69 The CNMI Legislature further refined Article XII in 1999 and 2011. In 1999, Senate Legislative Initiative 11-1 limited voter eligibility
64 Id.; ANALYSIS OF THE CONSTITUTION OF THE COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS, supra note 12. 65 CNMI Covenant, supra note 7, art. VIII, § 805, 90 Stat. at 275. Section A of part II examines the issue regarding the permanency of the land alienation restriction. 66 CNMI CONST. art. XII, § 4. An adopted child of an NMD, regardless of blood quantum, is considered a person of NMD, and thus, the requirements are race-neutral, 67 Id. (emphasis added). 68 ANALYSIS OF THE CONSTITUTION OF THE COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS, supra note 12, at 172. In other words, one who meets the TTPI requirement is also considered an NMD irrespective of blood quantum, which makes the NMD classification race-neutral. 69 Id. 164 Asian-Pacific Law & Policy Journal Vol. 14:1 for Article XII amendments to persons of NMD,70 as defined in Article XII.71 In 2011, the CNMI Legislature passed Public Law 17-40 to establish an NMD registry within the Commonwealth Election Commission (“CEC”).72 The CEC’s NMD registry serves as the official list of persons of NMD for purposes of voter eligibility for Article XII. To prove that one is a person of NMD, one must furnish to the CEC an original birth certificate, which provides information about the natural parents or ancestors of the NMD applicant.73 In short, voter eligibility for Article XII is controlled by section 5(c) of Article XVIII, which explicitly
70 CNMI CONST. art. XVIII, § 5(c). 71 Id. art. XII, § 4. 72 2011 N. Mar. I. Pub. L. 17-40, § 1. The definition of The Department of Public Lands used to control NMD registration, but the legislature transferred this power to the CEC and requires the commission to begin a completely new NMD registry. Id. § 2(b)(2)-(3). The commission controls the entire voting process in the CNMI for general elections—from registering voters to counting ballots. See COMMONWEALTH ELECTION COMMISSION, ABOUT CEC, http://www.votecnmi.gov.mp/about-cec.php. Section 1 of Public Law 17-40 interprets “persons of NMD” as “people of the Northern Mariana Islands,” who are of Northern Marianas Chamorro or Carolinian descent. 2011 N. Mar. I. Pub. L. 17-40, § 1. The [l]egislature further finds that the natural persons of Chamorro and Carolinian descent: were often referred to and known as: “the people of the Northern Mariana Islands” by the Administering Authority, which was the [United States], and by the United Nations . . . . [C]ovenant [section] 805 in part stated that, “the Government of the Northern Mariana Islands, in view of the importance of the ownership of land for the culture and tradition[s] of the people of the Northern Mariana Islands” . . . . [B]y this direct mentioned [sic] of “the people of the Northern Mariana Islands,” [the Covenant] clearly refer[s] to persons of Northern Marianas Chamorro and Carolinian descent who negotiated and voted for the Covenant. The [l]egislature agrees; and, therefore, supports that “only” persons of [NMD] can vote on Constitutional amendments affecting the protection against alienation of lands. Id. (citing CNMI Covenant, supra note 7, art. VIII, § 805, 90 Stat. at 275). The legislature made no substantive changes to the definition, however, and the governing definition is found in section 4 of Article XII. Id. 73 Id. § 2(c)(5). Applicants may obtain a birth record from the local hospital, court, Catholic church, or others holding such information. Id. 2012 Torres 165 limits voting on Article XII to persons of NMD, as defined in Article XII.74 Because Article XII’s land alienation restriction expired in 2011, persons of NMD will soon vote on whether or not to maintain Article XII,75 subject to the outcome of the pending lawsuit on the constitutionality of section 5(c) of Article XVIII of the CNMI Constitution.76 Land ownership in the CNMI is especially unique, in part because of the CNMI’s political relationship with the United States. The native inhabitants of Guam, on the other hand, have lost much of their land to foreigners. Native inhabitants of Guam are now attempting to repair some of the damage through the political status plebiscite, as part of the decolonization process. B. The Case of Guam and the Political Status Plebiscite For over 200 years prior to U.S. rule, Spain controlled Guam.77 The United States took control of Guam in 1899,78 but its failure to effectively secure the island led to Japanese occupation in 1941.79 The United States regained control of Guam in 1944.80 Unlike the CNMI, Guam did not vote on its political relationship with the United States.81
74 CNMI CONST. art. XVIII, § 5(c). In other words, only those with (1) twenty-five percent “Northern Marianas Chamorro or Northern Marianas Carolinian blood”; or (2) a combination of at least twenty-five percent Northern Marianas Chamorro and Carolinian blood; or (3) an adopted child of an NMD, if adopted under the age of eighteen, may vote on Article XII amendments. Id. art. XII, § 4.
75 The date of the plebiscite has yet to be announced, although there is currently a petition to include the question of whether or not to maintain Article XII on the ballot this year. Eugenio, supra note 11. 76 Amended Complaint for Declaratory Judgment & Injunctive Relief, supra note 25, at 8. 77 SANCHEZ, supra note 18, at 75, 232. The Spanish administration controlled Guam from 1672 to 1898. Id. at 304. 78 Id. at 81. The United States formally controlled Guam from 1899 to 1941. Id. at 81, 304. 79 Id. at 171. The Japanese ruled Guam from 1941 to 1944. Id. at 304. 80 Id. at 75, 232. 81 Although Guam had the opportunity to become a commonwealth like the CNMI, the U.S. Departments of Interior, Defense, and State created roadblocks to prevent Guam officials from being informed about then President Gerald R. Ford’s decision to grant Guam a commonwealth status. HOWARD P. WILLENS & DIRK A. BALLENDORF, THE SECRET GUAM STUDY 69-79 (2004). 166 Asian-Pacific Law & Policy Journal Vol. 14:1
During the United States’ initial possession of Guam in 1899 to 1941, the people of Guam82 sought a more defined relationship with the United States.83 As such, they appealed for U.S. citizenship, but the U.S. Congress repeatedly failed to act on legislation that would grant them U.S. citizenship.84 In the eyes of Congress, the people of Guam were “American nationals”85 and could not be afforded citizenship for fear of the economic strains that citizenship would impose on the United States.86 It was not until 1950 that the United States finally granted Guam’s inhabitants U.S. citizenship through the 1950 Organic Act,87 a congressionally implemented act that serves as Guam’s constitution.88 The 1950 Organic Act classified Guam’s status as an unincorporated U.S. territory,89 which meant that only certain parts of the U.S. Constitution
82 The “people of Guam” refers to Guam residents during the period of U.S. possession. The voter classification being challenged in Davis v. Guam involves the definition of “native inhabitants of Guam,” those who became U.S. citizens through the 1950 Organic Act and their descendants. 1 GUAM CODE ANN. § 2102(b) (2011). “Native inhabitants” are not solely Chamorros. See infra Part II.B. for more details on “native inhabitants.” 83 See Hannah Guiterrez, Comment, Guam’s Future Political Status: an Argument for Free Association with U.S., 4 ASIAN-PAC. L. & POL’Y J. 122, 126- 28 (2003). The United States took control of Guam after signing the Treaty of Paris in 1899; Guam thus became a U.S. territory. Id. at 126. 84 Id. at 127 (citing TIDES OF HISTORY: THE PACIFIC ISLANDS IN THE TWENTIETH CENTURY 112 (K.R. Howe et al. eds., 1994)). 85 Id. at 128 (citing LAUGHLIN, supra note 43, at 399). The term “American nationals” is not clearly defined. “American nationals” are “non- citizen nationals” who are not U.S. citizens, including those born in American Sāmoa. Immigration and Nationality Act of 1952, 8 U.S.C. § 1408 (need to look for official year); U.S. DEP’T OF THE INTERIOR OFFICE OF INSULAR AFFAIRS, AMERICAN SAMOA, available at http://www.doi.gov/archive/oia/Islandpages/asgpage.htm (last updated Jan. 5, 2012) [hereinafter AMERICAN SAMOA]. Non-citizen nationals and U.S. citizens in the territories do not vote in federal elections or pay federal taxes. AMERICAN SAMOA, http://www.doi.gov/archive/oia/Islandpages/asgpage.htm. 86 Id. at 127 (citing PENELOPE BORDALLO HOFSCHNEIDER, A CAMPAIGN FOR POLITICAL RIGHTS ON THE ISLAND OF GUAM, 1899-1950 53 (Scott Russell ed., 2001)). Guam’s native inhabitants appealed for U.S. citizenship in 1905. Id. at 127 (citing TIDES OF HISTORY: THE PACIFIC ISLANDS IN THE TWENTIETH CENTURY, supra note 84). 87 SANCHEZ, supra note 18, 302, 304-05. 88 Id. 89 Van Dyke, supra note 14, at 449-50. 2012 Torres 167
applied to Guam.90 As a result, the 1950 Organic Act failed to satisfy the people’s thirst for political status and self-government.91 The U.S. appointed U.S. citizens as governors of Guam for two decades. It was President John F. Kennedy who appointed the first Chamorro governors, one in 1961 and one in 1963.92 The success of the two Chamorro governors finally convinced Congress to amend the 1950 Organic Act. This amendment allowed the people of Guam to elect their first governor in 1970.93 The amendment was only the first step in Guam’s push for greater self-determination. In 1976, Congress authorized Guam to draft its first constitution.94 Because of the uncertainty in Guam’s political status, 81.7 percent of voters voted against the draft constitution.95 In an effort to address issues concerning Guam’s political status, the legislature established the Commission on Self-Determination in 1980 to evaluate the different political status options for the upcoming referendum, including statehood, free association, commonwealth, incorporated territorial status, unincorporated territorial status, independence, and an “other” category.96 Some wanted a Chamorro-only vote because Chamorros were never given an opportunity to vote on Guam’s political status, but the commission rejected this demand altogether. 97 The referendum only received a thirty- seven percent voter turnout, with forty-nine percent voting for
90 The following provisions of and amendments to the Constitution of the United States are hereby extended to Guam to the extent that they have not been previously extended to that territory and shall have the same force and effect there as in the United States or in any State of the United States: article I, section 9, clauses 2 and 3; article IV, section 1 and section 2, clause 1; the first to ninth amendments inclusive; the thirteenth amendment; the second sentence of section 1 of the fourteenth amendment; and the fifteenth and nineteenth amendments. 48 U.S.C. § 1421b(u). Congress maintains the authority to implement constitutional provisions. Guam v. Guerrero, 290 F.3d 1210, 1214 (9th Cir. 2002) (citing Pugh v. United States, 212 F.2d 761, 762-63 (9th Cir. 1954)). 91 SANCHEZ, supra note 18, at 422. 92 Id. at 317-32. 93 Id. at 355. 94 Id. at 432. 95 Id. at 440. 96 Id. 97 Id. 168 Asian-Pacific Law & Policy Journal Vol. 14:1
commonwealth status and twenty-six percent voting for statehood.98 A run-off election on Guam’s political status coincided with the general election in 1982, which brought an eighty-three percent voter turnout. This time, seventy-three percent voted for commonwealth status, in part because voters were aware of the benefits that the CNMI had gained from this status.99 This push for self-determination, however, was not enough, and the lack of attention and funding for the commission eventually led to its deterioration.100 The Guam Legislature then amended the law that created the first commission and established the second Commission on Self- Determination in 1984 to draft a document that focused on pursuing a commonwealth status based on the 1982 elections.101 Two commission members asserted that a covenant should be proposed instead of a commonwealth.102 These commission members argued that a covenant would be more permanent as compared to a congressional commonwealth act, which could be unilaterally changed by Congress.103 A covenant would assure that Guam’s political status would change and afford the people of Guam greater self-determination.104 The commission ultimately rejected the idea of a covenant because it contradicted the commission’s purpose of pursuing a commonwealth status under U.S. sovereignty.105 This rejection resulted in the Guam Legislature’s creation of the draft Commonwealth Act. One of the key parts of the draft Commonwealth Act was a provision that explicitly recognized the right of Chamorros to exercise their self-determination in Guam’s decolonization process.106 The Chamorro self-determination provision was controversial and unfavored in the eyes of non-Chamorros and politicians alike.107 The commission
98 THE POLITICAL STATUS EDUCATION COORDINATING COMMISSION, ISSUES IN GUAM’S POLITICAL DEVELOPMENT 161 (1996). 99 Twenty-seven percent of voters chose statehood. Id. at 162. 100 SANCHEZ, supra note 18, at 441. 101 THE POLITICAL STATUS EDUCATION COORDINATING COMMISSION, supra note 98, at 164-65. 102 SANCHEZ, supra note 18, at 442. 103 Id. 104 Id. 105 Id. 106 THE POLITICAL STATUS EDUCATION COORDINATING COMMISSION, supra note 98, at 166. 107 Id. 2012 Torres 169
revised the Chamorro self-determination provision to provide that the draft Commonwealth Act would establish “a process (through the Constitution of Guam) that would allow the Chamorro people to exercise self- determination.”108 The commission also re-defined the term “Chamorro” as one who was “in Guam on August 1, 1950 when the Organic Act went into effect,” regardless of Chamorro blood, instead of the more common definition: a Chamorro or a descendant of a Chamorro who was a U.S. citizen through the Organic Act.109 This definition change received fifty- six percent voter approval in the 1988 special election.110 In 1988, the legislature submitted the draft Commonwealth Act to Congress for approval and introduced the draft Commonwealth Act in every Congressional session since then, but Congress has failed to take action.111 Congress has only attempted to address specific issues raised in the draft Commonwealth Act instead of passing the draft Commonwealth Act as a whole.112 Despite Congress’ failure to pass the draft Commonwealth Act, the Chamorros of Guam have continued the fight for self-determination. In an effort to begin a local process of self-determination, the Guam Legislature established the Chamorro registry in 1996, patterned after the draft Commonwealth Act, to account for the number of Chamorros on Guam.113 The Chamorro registry also acknowledged the United States’ obligation to Guam under Article 73 of the United Nations Charter “to develop self- government, to take due account of the political aspirations of the peoples, and to assist them in the progressive development of their free political institutions.”114 The following year, the Guam Legislature established the Commission on Decolonization for the Implementation and Exercise of Chamorro Self-Determination to explore Guam’s future political status with the United States, and equally important, to “end colonial
108 Id. at 168 (internal quotations omitted). 109 Id. (internal quotations omitted). 110 Id. 111 SANCHEZ, supra note 18, at 443; Van Dyke, Self-Determination for Nonself-governing Peoples and for Indigenous Peoples: The Cases of Guam and Hawai‘i, 18 U. HAW. L. REV. 623, 628 (1996). 112 U.S. DEP’T OF THE INTERIOR OFFICE OF INSULAR AFFAIRS, A REPORT ON THE STATE OF THE ISLANDS - 1997, available at http://www.doi.gov/archive/oia/StateIsland/chapter4.html (last updated Mar. 12,, 2008). 113 Guam Pub. L. 23-130 (1996). 114 Guam Pub. L. 23-130 (internal quotations omitted). 170 Asian-Pacific Law & Policy Journal Vol. 14:1
discrimination and address long-standing injustice [to] a people.”115 The legislature then created the Guam Decolonization Registry in 2000 to determine voter eligibility for the political status plebiscite and set the plebiscite for July 1, 2000,116 the year of which the legislature later changed to 2014.117 More recently, the Guam Legislature amended the law on the plebiscite, but did not determine a specific date for the plebiscite vote.118 The legislature created the decolonization registry to distinguish it from the existing Chamorro registry. The Chamorro registry defines “Chamorro” as (1) inhabitants of Guam “on April 11, 1899, including those temporarily absent from [Guam] on [April 11] and [who] were Spanish subjects,” and (2) those born on Guam before 1800 “and their descendants, who resided on Guam on April 11, 1899, including those temporarily absent from [Guam] on that date, and their descendants.”119 The decolonization registry limits voting to “native inhabitants,” those who became U.S. citizens under the 1950 Organic Act and their descendants.120 The definition of “native inhabitants”121 is significant in analyzing the constitutionality of the political status plebiscite, which will be discussed infra in section B of Part II. II. CURRENT CHALLENGES TO VOTER CLASSIFICATIONS IN THE CNMI AND GUAM Rice’s invalidation of the OHA trustee voter classification based on the Fifteenth Amendment of the Constitution does not apply to the voter classification challenges in the CNMI and Guam upon a close examination of the definitions of “NMD” and “native inhabitants of Guam,” the political statuses of the CNMI and Guam, and the relevant case law. The current challenge to Guam’s voter classification began in November 2011, when Arnold Davis initiated suit against Guam, the Guam Election Commission, and seven Guam officials, contending that Guam’s definition of “native inhabitants” constitutes discrimination on the basis of race, violating the Voting Rights Act of 1965, the Organic Act of Guam, and the
115 Guam Pub. L. 23-147 (1997). 116 Guam Pub. L. 25-106 (2000). 117 S.B. 154-31, 31st Leg., 1st Sess. (Guam 2011). 118 Guam Pub. L. 31-92 (2011). 119 3 GUAM CODE ANN. § 20001(a)(1)-(2)(i) (1997) (emphasis in original). 120 3 GUAM CODE ANN. § 21001 (2000). 121 See supra note 82 for more information on “native inhabitants” and infra Part II.B. 2012 Torres 171
Fifth, Fourteenth, and Fifteenth Amendments of the Constitution.122 Among the arguments made by the defendants is that the lawsuit is not justiciable because the plebiscite is not binding on Congress and will not affect Davis’ rights, and the definition of “native inhabitants” does not violate the Constitution.123 Davis counters that the 1950 Organic Act itself establishes a case or controversy and thus, the case is justiciable.124 He also asserts that because there is no “special relationship” to Guam’s native inhabitants, Guam does not have the authority to conduct the political status plebiscite, which he deems as “racially discriminatory.”125 Davis distinguishes the status of Guam from that of the CNMI and argues that the cases in the CNMI do not apply to Guam as a result.126 He further argues that Puerto Rico precedent, which deals with Puerto Rico’s political status plebiscites, does not apply because of the slight factual differences in those cases.127 Based on the outcome of the November 15, 2011, hearing on the dismissal of the case, the U.S. District Court of Guam may confront these arguments and ultimately decide on the validity of the voter classification for Guam’s political status plebiscite in September 2013.128 John H. Davis, Jr., of Saipan then filed suit a few months later, patterned after the Guam lawsuit, alleging that the voter classification for Article XII to persons of NMD and the NMD registry violate the Fourteenth and Fifteenth Amendments of the U.S. Constitution.129 The CEC argued that the court lacked jurisdiction because Davis’ claims were not ripe, as the election was not yet scheduled and Davis did not suffer an actual injury,130 thus relying on an “abstract and hypothetical” future vote
122 Complaint, supra note 28, at 7-9. 123 Motion to Dismiss, supra note 28, at 9-15. 124 Opposition & Reply to Motion to Dismiss, supra note 27, at 12. 125 Id. at 13-15. 126 Id. at 19. 127 Id. at 18-19. Because Guam lacks precedent on the specific challenge to the voter classification for the political status plebiscite, the defendants use Puerto Rico precedent to provide guidance in this regard. Like Guam, Puerto Rico is an unincorporated territory. Van Dyke, supra note 14, at 449-50. 128 Aguon, supra note 30. 129 Amended Complaint for Declaratory Judgment & Injunctive Relief, supra note 25, at 1-2, 4. 130 Opposition to Plaintiff’s Motion for Summary Judgment at 5, Davis v. Commonwealth Election Comm’n, No. 12-00001 (D. N. Mar. I. Feb. 23, 2012); Cross Motion for Summary Judgment at 5, Davis v. Commonwealth Election Comm’n, No. 12-00001 (D. N. Mar. I. Mar. 7, 2012). 172 Asian-Pacific Law & Policy Journal Vol. 14:1
and injury.131 Davis countered that his claims were ripe for adjudication, and the court had subject matter jurisdiction based on section 402(a) of the Covenant and other applicable federal statutes.132 Davis also alleged that there was “a credible threat” that he would be “denied the right to vote on public issues, i.e., amendment of the Commonwealth Constitution, on account of race.”133 On June 26, 2012, the U.S. District Court for the Northern Mariana Islands dismissed the case without prejudice, because Davis lacked standing and the matter was not ripe for adjudication.134 Because the matter has been dismissed without prejudice, the matter remains pending. The fate of the CNMI’s persons of NMD and Guam’s native inhabitants remains uncertain. Critics of the CNMI and Guam voter classifications believe that Rice’s holding determines the outcome of the lawsuits and thus the classifications should be declared invalid. One need only look to the definitions of “persons of NMD”135 and “native
131 Cross Motion for Summary Judgment, supra note 130, at 5-6. 132 Reply to Opposition to Plaintiff’s Motion for Summary Judgment & Opposition to Defendants’ Cross-Motion for Summary Judgment at 3, No. 12- 00001 (D. N. Mar. I. Mar. 10, 2012). Section 402(a) of the CNMI Covenant gives the U.S. District Court for the Northern Mariana Islands the same jurisdiction as another U.S. district court; with cases arising under the U.S. Constitution, treaties, or laws, the district court inherently has jurisdiction. CNMI Covenant, supra note 7, art. IV, § 402(a), 90 Stat. at 266. Davis grounds subject-matter jurisdiction on the following federal statutes: 28 U.S.C. §§ 1331, 2201, and 2202. Id. 133 Id. 134 Davis v. Commonwealth Election Comm’n, 2012 WL 2411252, at *1, *7 (D. N. Mar. I. June 26, 2012). The court explained: As likely as it seems that in the not-too-distant future an Article XII initiative will be put to a vote, it cannot be said that a ballot initiative is inevitable. . . . [N]o constitutional or statutory provision requires the people of the CNMI ever to vote on modifying or repealing Article XII. While Davis may find it distressing to contemplate that under Commonwealth law, if an Article XII initiative gets on the ballot he will not be permitted to vote on it, he suffers no hardship until an initiative is “certainly impending.” Id. at *7. 135A person of NMD is a U.S. citizen or national who (1) is at least twenty-five percent “Northern Marianas Chamorro or Northern Marianas Carolinian blood”; or (2) is a combination of at least twenty-five percent Northern Marianas Chamorro and Carolinian blood; or (3) is an adopted child of
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inhabitants,”136 and the legislative history of each to better grasp the intent behind these definitions. The intent of these definitions, along with the political questions involved in the plebiscites and the unincorporated territorial status of the CNMI and Guam, as discussed infra in this section, distinguish these voter classifications from the OHA trustee voter restriction for a statewide election in Rice. A. The CNMI’s NMD Voter Classification The CNMI’s political relationship with the United States is significant in evaluating the NMD voter classification. The CNMI’s relationship with the United States is unique in that the CNMI is an unincorporated territory of the United States,137 where only fundamental rights apply.138 Another unique part of the relationship is that the CNMI acted as a sovereign in negotiating the Covenant with the United States, which specifically acknowledges the CNMI’s inherent sovereignty. This allowed the CNMI to restrict the federal government’s ability to amend the Covenant. In an effort “to respect the right of self-government guaranteed by [the] Covenant,”139 section 105 of the Covenant expressly provides that the federal government cannot modify specific parts of the Covenant, including the land alienation restriction in section 805 of the Covenant, without the mutual consent of the CNMI and U.S. governments.140 The
an NMD if adopted under the age of eighteen; or (4) is “born or domiciled in the [CNMI] by 1950 and . . . a [TTPI citizen] before the termination of the Trusteeship . . .” in 1986. CNMI CONST. art. XII, § 4 (emphasis added). 136 “Native inhabitants of Guam” are those who became U.S. citizens through the 1950 Organic Act and their descendants, a group not exclusive of Chamorros. See 1 GUAM CODE ANN. § 2102(b) (2011). 137 The Covenant solidified this unique status. 138 The Insular Cases established that only fundamental rights apply in unincorporated territories, like the CNMI and Guam. N. Mar. I. v. Atalig, 723 F.2d 682, 688-89 (9th Cir. 1984) (citing e.g., Balzac v. Porto Rico, 258 U.S. 298 (1922); Dorr v. United States, 195 U.S. 138 (1904); Hawaii v. Mankichi, 190 U.S. 197, 216-18 (1903)). 139 CNMI Covenant, supra note 7, art. I, § 105, 90 Stat. at 264. 140 The mutual consent provision also applies to Articles I, II, III, and section 501 of the CNMI Covenant. Id. Article I involves the political relationship of the CNMI with the United States; Article II relates to the CNMI Constitution; Article III concerns citizenship and nationality; and section 501 of Article IV discusses the applicability of the U.S. Constitution in the CNMI. COMMONWEALTH LAW REVISION COMMISSION, COVENANT (2012), available at http://www.cnmilaw.org/covenant.htm. The Atalig court highlighted the significance of section 501 and reiterated the mutual consent doctrine in section 105 of the Covenant. 723 F.2d at 686. 174 Asian-Pacific Law & Policy Journal Vol. 14:1
Covenant reiterates the importance of section 805’s land alienation restriction by limiting the U.S. Constitution’s application, including the Fourteenth and Fifteenth Amendments, in relation to section 805.141 In effect, section 805 is exempt from the U.S. Constitution.142 At the same time, section 501(a) of the Covenant provides that the Fourteenth and Fifteenth Amendments of the U.S. Constitution apply as if the CNMI were a state.143 These apparently conflicting perspectives have been reconciled in N. Mar. I. v. Atalig144 and Wabol v. Villacrusis,145 discussed infra. Without the land alienation restriction’s exemption from application of the U.S. Constitution, “the accession of the [CNMI] to the United States would not have been possible,”146 which evidences the importance of the land alienation restriction in the passage of the Covenant. Davis v. Commonwealth Election Commission is not only a challenge to the NMD voter classification, but also a challenge to the very provision that was critical to the present relationship between the CNMI and the United States. In evaluating the NMD voter classification, one must look to the courts’ existing interpretation of the Covenant and the applicable constitutional provisions in Atalig,147 Wabol,148 and Rayphand v. Sablan.149
141 Section 501(b) of the Covenant provides that the applicability of provisions of the U.S Constitution “be without prejudice to the validity of and the power of the [U.S. Congress] to consent to” sections 203, 506, and 805. CNMI Covenant, supra note 7, art. V, § 501(b), 90 Stat. at 267. Wabol v. Villacrusis evaluates the applicability of the Fourteenth Amendment to § 805, which will be discussed infra in section A of Part II. 958 F.2d 1450, 1459 (9th Cir. 1992). 142 HERMAN MARCUSE, COVENANT TO ESTABLISH A COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS (PL 94-241): BASIC DOCUMENT AND ANNOTATIONS 39 (1976), available at http://www.nmid.uscourts.gov/documents/publications/covenant.pdf. 143 CNMI Covenant, supra note 7, art. V, § 501, 90 Stat. at 267. 144 Atalig, 723 F.2d 682. 145 958 F.2d at 1450. 146 MARIANAS POLITICAL STATUS COMMISSION, SECTION BY SECTION ANALYSIS OF THE COVENANT TO ESTABLISH A COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS 48 (1975) [hereinafter MARIANAS POLITICAL STATUS COMMISSION]. U.S. officials also insisted that the land alienation restrictions “be permanent rather than limited in time duration.” LEARY, supra note 46, at 27. 147 723 F.2d at 682. 148 Wabol, 958 F.2d 1450. 149 Rayphand v. Sablan, 95 F. Supp. 2d 1133 (D. N. Mar. I. 1999). 2012 Torres 175
In re Estate of Tudela also provides guidance for examining the definition of “persons of NMD.”150 In a challenge to the constitutionality of section 501 of the Covenant,151 the Atalig court held that the right to have a jury trial does not apply in the CNMI, and section 501 does not violate the Sixth and Fourteenth Amendments of the Constitution.152 The court based its determination on the Insular Cases, which held that the right to a grand jury and jury trial are not fundamental and have no force in unincorporated territories.153 Atalig not only strengthened the Insular Cases, but also gave more credence to the unique treatment of the unincorporated U.S. territories. Wabol is especially instructive on the NMD voter classification. Wabol held that the land alienation restriction in Article XII of the CNMI Constitution did not violate the Equal Protection Clause and that “Congress acted within its power in enacting sections 501(b) and 805 of the Covenant.”154 In analyzing Article XII, the court did not evaluate the category “persons of NMD” itself,155 but rather, examined the purpose of Article XII. The court validated Article XII, acknowledging the Trusteeship Agreement’s mandate to the United States to protect the
150 In re Tudela, No. 05-0027-GA, 2009 WL 2461676 (N. Mar. I. 2009). 151 Section 501 applies certain constitutional provisions in the CNMI, including the Fourteenth and Fifteenth Amendments. CNMI Covenant, supra note 7, art. V, § 501, 90 Stat. at 267. 152 Atalig, 723 F.2d at 689. 153 Id. at 688-89 (citing Balzac v. Porto Rico, 258 U.S. 298 (1922); Dorr v. United States, 195 U.S. 138 (1904); Hawaii v. Mankichi, 190 U.S. 197, 216-18 (1903)). 154Wabol, 958 F.2d at 1462. 155 One commentator argues that the court categorized the restriction as “race-based” because the court framed the issue as “whether the constitutional guarantee of equal protection of the laws limits the ability of the United States and the Commonwealth to impose race-based restrictions on the acquisition of permanent and long-term interests in Commonwealth land.” Id. at 1451 (emphasis added); Howard P. Willens, Validity of Article 18(5)(c) of the CNMI Constitution, SAIPAN TRIBUNE, Mar. 30, 2008, http://www.saipantribune.com/newsstory.aspx?cat=3&newsID=78460. The Wabol court, however, reframed the issue as whether “the right of equal access to long-term interests in Commonwealth real estate, resident in the equal protection clause, [is] a fundamental one” beyond Congress’ power to exempt from section 3 of Article IV of the Constitution. Wabol, 958 F.2d at 1460. It is important to note that the territorial clause in Article IV does not apply in the CNMI based on the text of the Covenant, and constitutional provisions only apply through the Covenant. CNMI Covenant, supra note 7, art. V, § 501(a), 90 Stat. at 267. 176 Asian-Pacific Law & Policy Journal Vol. 14:1
people “against the loss of their lands and resources.”156 The court also recognized the years of foreign occupation that the CNMI had endured and the “substantial devastation” resulting from World War II.157 Without Article XII, the court stated, “the political union between the CNMI and the United States would not [have been] possible.”158 Wabol reiterated that only fundamental rights apply in the CNMI because it is an unincorporated territory.159 What is considered “fundamental” in the territories with respect to the acquisition of long- term interests in land is that which is “fundamental in [the] international sense.”160 Thus, the court determined that “the right to acquire permanent or long-term interests” in land was not fundamental, and thus, not constitutionally protected.161 Wabol is consistent with the Insular Cases and Atalig in its legal treatment of the CNMI, further strengthening the Insular Cases and the Covenant. Wabol then adopted the “impractical and anomalous” test from Justice Harlan’s concurring opinion in Reid v. Covert to consider whether the right to acquire long-term interests in land would be impractical or anomalous in the CNMI.162 The Wabol court recognized the fundamental nature of Article XII to the people of the CNMI163 and its political purpose—to prevent exploitation of the people and advance the CNMI’s economy and self-sufficiency.164 The court concluded that it would be “anomalous” to use the Equal Protection Clause in a manner that would “force the United States to break its pledge to preserve and protect
156 Wabol, 958 F.2d at 1458 (citing Trusteeship Agreement art. 6, §§ 2, 3). 157 Id. 158 Id. at 1462. The latter part of this section responds to the argument that the land alienation restriction was not intended to be permanent. 159 Id. at 1458. 160 Id. at 1460 (emphasis in original). The definition of “fundamental” in the territorial context refers to rights that are the “basis of all free government.” N. Mar. I. v. Atalig, 723 F.2d 682, 690 (9th Cir. 1984) (quoting Dorr v. United States, 195 U.S. 138, 146-47 (1904)). Although described in case law, the definition of “fundamental” does not have a specific definition. 161 Wabol, 958 F.2d at 1452, 1462. 162 Id. at 1461 (citing Reid v. Covert, 354 U.S. 1, 75 (1957) (Harlan, J., concurring)). 163 Id. (citing CNMI Covenant, supra note 7, art. I, § 105, 90 Stat. at 264). 164 Id. at 1452 (citing CNMI Covenant, supra note 7, art. VIII, § 805, 90 Stat. at 275). 2012 Torres 177
[CNMI] culture and property.”165 Ultimately, the court determined that the Covenant still “defines the relationship between the [CNMI] and the United States.”166 Rayphand further validated the limited application of the U.S. Constitution in the CNMI, holding that the malapportioned CNMI Senate did not violate the “one person-one vote” guarantee in the U.S. Constitution.167 The court questioned Wabol’s impractical and anomalous test168 and focused instead on whether the “one person-one vote” requirement is “the basis of all free government” and held that “one person-one vote” was not fundamental.169 Again, the court validated the Covenant and its intent to exempt certain Covenant provisions from constitutional attacks.170 Consistent with Atalig and Wabol, Rayphand maintained the integrity of the Covenant and strengthened it in the process. The Commonwealth Supreme Court in In re Estate of Tudela provides further guidance in analyzing Article XII. The court explored the “persons of NMD” category, clarifying its political function.171 In re Estate of Tudela involved an Okinawan woman’s inheritance of land from her NMD husband who died five days after they got married; her deceased husband’s family initiated probate proceedings to recover the land.172 The Commonwealth Supreme Court agreed with the trial court’s position that non-NMD status of a surviving spouse of an NMD without children was immaterial with respect to Article XII’s land alienation restriction. The supreme court held that a non-NMD, who was also the surviving spouse of an NMD, was exempt from the land alienation restriction in Article XII
165 Id. at 1462. 166 Id. at 1459. 167 Rayphand v. Sablan, 95 F. Supp. 2d 1133, 1139 (D. N. Mar. I. 1999). 168 The Rayphand court was a federal district court as opposed to the Ninth Circuit in Wabol. 169 Rayphand, 95 F. Supp. 2d Id. at 1139-40. 170 MARCUSE, supra note 142. 171 In re Estate of Tudela, No. 05-0027-GA, 2009 WL 2461676 (N. Mar. I. Aug. 7, 2009). Rose Cuison Villazor initially analyzed “persons of NMD” as a political category and provides a useful analysis on the matter. Rose Cuison Villazor, Reading Between the (Blood) Lines, 83 S. CAL. L. REV. 473, 488-93 (2010) [hereinafter Villazor II]. I highlight her major points and build off of her analysis with respect to the present litigation on the NMD voter classification. 172 Villazor II, supra note 171, at 491. 178 Asian-Pacific Law & Policy Journal Vol. 14:1 and that her non-NMD status did not preclude her from acquiring a fee simple interest in land.173 Equally significant, the court rejected the idea that Article XII should be a mechanism to “keep land within the bloodlines as much as possible.”174 The court’s analysis of Article XII and its application to non- NMDs speaks volumes. In re Estate of Tudela captured the race-neutral intent and political purpose of Article XII, maintained the integrity of the land alienation restriction, and at the same time, recognized the rights of non-NMDs to own land when their NMD spouses die intestate.175 Thus far, the courts have consistently applied the provisions of the Covenant and have limited the U.S. Constitution’s application to CNMI laws based on the nature of the CNMI’s political relationship with the United States and the “fundamental” parts of the Covenant that were key to establishing the political union between the CNMI and United States. Although the test as to what exactly is “fundamental”176 has varied from what is “fundamental in the international sense” in Wabol177 to what is
173 In re Estate of Tudela, 2009 WL 2461676, at *1, *6. The court relied on a plain reading of “acquisition” in Article XII as grounds for its decision. Id. (citing CNMI CONST. art. XII, §§ 1-2). Article XII restricts the “acquisition of permanent and long-term interests in real property” in the CNMI to persons of NMD. CNMI CONST. art. XII, § 1. An “acquisition,” occurs “[b]y sale, lease, gift, inheritance or other means,” but a land transfer to a spouse via inheritance does not constitute an “acquisition” if the owner of the land dies with or without issue. Id. § 2. Because Tudela acquired the land through intestacy (i.e., her NMD husband died without issue) and she had no children with her NMD husband, she owned the land in fee simple and had the right to own the land as a non-NMD and surviving spouse of an NMD. In re Estate of Tudela, 2009 WL 2461676, at *6. Mrs. Tudela’s non-NMD status, however, would not allow her to vote for any amendment to Article XII. 174 Id. at *4. 175 The Commonwealth Supreme Court explained: Even though the spouse, being a non-NMD, briefly removes the fee simple ownership of the land from local control, the land must eventually revert to an NMD. This is because [Tudela] can only convey her fee simple interest to an NMD. Thus, since the exemption found in Article XII, Section 2 does not permit the alienation of a fee simple estate beyond the one-time exception to the surviving spouse thorough inheritance, the policy concerns which were the impetus for Article XII are satisfied.
In re Estate of Tudela, 2009 WL 2461676, at *6. 176 See supra note 160 and accompanying text. 177 Wabol v. Villacrusis, 958 F.2d 1450, 1460 (9th Cir. 1992). 2012 Torres 179 fundamental for “the basis of all free government” in Rayphand,178 the courts have notably stayed true to the intent of the Covenant and have preserved its integrity.179 Whether the courts will continue to stay true to the intent of the Covenant remains questionable with the current challenge to the NMD voter classification. Given the interpretation of fundamental constitutional rights that apply in unincorporated territories and the U.S.-CNMI political relationship,180 how will the NMD voter classification fare in light of the invalidation and “race-based” nature of OHA’s trustee voter classification in Rice? At the outset, it is important to distinguish the functions of the OHA trustee voter classification in Rice, limited to persons of Hawaiian ancestry, from the NMD classification. The OHA trustee voter classification involved a statewide election for state officials,181 whereas the NMD classification involves a vote on the political question of whether to maintain the land alienation restriction in Article XII.182 Furthermore, “persons of NMD” is a political category created for a political purpose, as demonstrated in In re Estate of Tudela,183 not a racial
178 Rayphand v. Sablan, 95 F. Supp. 2d 1133, 1139-40 (D. N. Mar. I. 1999). Again, it should be emphasized that the Rayphand decision was issued by a federal district court, as opposed to Wabol, which was decided by the Ninth Circuit Court of Appeals. 179 See, e.g., Wabol, 958 F.2d at 1461-62 (“The legislative history of the Covenant and the Constitution indicate that the political union of the commonwealth and the United States could not have been accomplished without the restrictions . . . . Absent the alienation restriction, the political union would not be possible.”). 180See N. Mar. I. v. Atalig, 723 F.2d 682, 688-89 (9th Cir. 1984) (citing Balzac v. Porto Rico, 258 U.S. 298 (1922); Dorr v. United States, 195 U.S. 138 (1904); Hawaii v. Mankichi, 190 U.S. 197, 216-18 (1903)). 181 Rice v. Cayetano, 528 U.S. 495, 498 (2000). OHA holds title to real and personal property in trust for Hawaiians generally. Haw. Const. art. XII, § 5. OHA trustees oversee revenues “from the sale or other disposition of the lands, natural resources, minerals and income derived from whatever sources for native Hawaiians and Hawaiians, including all income and proceeds from that pro rata portion of the trust referred to in section 4 of [article XII] for native Hawaiians”; “formulate policy relating to affairs of native Hawaiians and Hawaiians;” and “exercise control over real and personal property set aside by state, federal or private sources and transferred to [OHA trustees] for native Hawaiians and Hawaiians.” Id. art. XII, § 6. 182 The late Justice Villagomez discussed this briefly in his article, which Judge Camacho expanded in his capstone paper. Villagomez, supra note 15; Camacho, supra note 15. I will further develop this point in this section. 183 In re Estate of Tudela, No. 05-0027-GA, 2009 WL 2461676, at *4, *6
180 Asian-Pacific Law & Policy Journal Vol. 14:1 category as the Rice court characterized “Hawaiians.”184 “Persons of NMD” is distinguishable from “Hawaiian” because the category is based on “neutral principles [such as] place of birth, domicile, and incorporation.”185 “Any racial connotation from the use of blood quantum was negated” by the adoption provision186 and the use of geography, time, and citizenship in creating the group “full-blooded” Northern Marianas Chamorro or Carolinian.187 Ancestry is also not a base requirement to satisfy the definition of a “person of NMD.”188 In restricting land to NMDs, the drafters of the Covenant deliberately avoided racial or ancestral classifications for a greater purpose—to preserve the culture and traditions of the people of the CNMI, protect the people from exploitation, and promote economic advancement.189 The political relationships involved directly affect the applicability of constitutional rights. Hawai‘i is a U.S. state, whereas the CNMI is under U.S. authority through a Covenant, with the inherent right of self- government.190 The U.S Constitution applies automatically to all states,
(N. Mar. I. 2009). 184 Rice, 528 U.S. at 515. 185 ANALYSIS OF THE CONSTITUTION OF THE COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS, supra note 12, at 164. 186 Those adopted by NMD parents while under the age of eighteen are considered a person of NMD, regardless of blood quantum. CNMI CONST. art. XII, § 4. 187 Villazor II, supra note 171, at 489. One of the ways to satisfy the NMD requirement is to be considered a “full-blooded” Northern Marianas Chamorro or Carolinian, but this requirement is actually race-neutral because those born or domiciled in the CNMI by 1950 with TTPI citizenship before the termination of the Trusteeship in 1986, irrespective of blood quantum, are considered persons of NMD. CNMI CONST. art. XII, § 4. The geographic, time, and citizenship restrictions effectively make the NMD classification race-neutral. See Villazor II, supra note 171, at 489-91. 188 Those who have satisfied (1) the geographic, time, and citizenship restrictions; or (2) adoption provision; or (3) blood quantum requirements are eligible to own land. CNMI CONST. art. XII, § 4. 189 CNMI Covenant, supra note 7, art. VIII, § 805, 90 Stat. at 275; ANALYSIS OF THE CONSTITUTION OF THE COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS, supra note 12, at 164. 190 CNMI Covenant, supra note 7, art. I, § 103, 90 Stat. at 264; see Joseph E. Horey, Right to Self-Government in the Commonwealth of the Northern Mariana Islands, 4 ASIAN-PAC. L. & POL’Y J. 180, 233 (2003) (asserting that the “federal legislative power . . . was granted not by the American people in the Constitution, but directly by the Northern Marianas people in the Covenant.”);
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including Hawai‘i, but only certain provisions of the U.S. Constitution apply to the CNMI, as established in the Covenant.191 Although the Rice Court ignored the trust relationship between the federal government and Native Hawaiians,192 any court in the instant case must acknowledge the CNMI’s unique relationship with the United States through the Covenant. In acknowledging the unique relationship, courts must also review the legislative history of Article XII to determine whether the NMD voter classification “singles out ‘identifiable classes of persons . . . solely because of their ancestry or ethnic characteristics’”193 so as to violate the Fourteenth or Fifteenth Amendments. Upon a legislative examination, courts will find that the framers specifically crafted a political definition to achieve a political purpose. A person of NMD is twenty-five percent or more Northern Marianas Chamorro or Carolinian descent; or an adopted child of NMD parents, regardless of blood quantum; or one who was born or domiciled in the CNMI by 1950 or was a TTPI citizen before 1986.194 “Persons of NMD” is a political category. Furthermore, “ethnicity is not at the heart of the classification.”195 Indeed, not all Chamorros or Carolinians with the requisite blood quantum are considered persons of NMD. Even “full-blooded” Northern Marianas Chamorros or Carolinians do not need to meet a blood quantum threshold as long as the geographic, time, and citizenship restrictions in Article XII are met. The adoption provision is also another means to become an NMD. Thus, NMDs are not inclusive solely of a racial or ethnic group, and the analysis could stop here. But even if strict scrutiny were to apply under a Fifteenth Amendment analysis, the NMD voter classification should still survive because it serves a compelling government interest and is narrowly tailored to serve that interest.196 The drafters of the Covenant used the
Villagomez, supra note 15. 191 CNMI Covenant, supra note 7, art. V, § 501, 90 Stat. at 267; Villagomez, supra note 15; Camacho, supra note 15. 192 The trust relationship is implicated in the Hawaiian Homes Commission Act and 1993 Apology Resolution from the U.S. Congress for the United States’ involvement in the overthrow of the Hawaiian Kingdom. Hawaiian Homes Commission Act, Pub. L. No. 67-34, 42 Stat. 108 (1921); Joint Resolution to Acknowledge the 100th Anniversary of the January 17, 1893 Overthrow of the Kingdom of Hawaii, Pub. L. No. 103-140, 107 Stat. 1510 (1993) [hereinafter Apology Resolution]. 193 Rice v. Cayetano, 528 U.S. 495, 515 (2000) (quoting Saint Francis College v. Al-Khazraji, 481 U.S. 604, 613 (1987)). 194 CNMI CONST. art. XII, § 4. 195 Cross Motion for Summary Judgment, supra note 130, at 11. 196 City of Richmond v. J.A. Croson Co., 488 U.S. 469, 472, 485-86
182 Asian-Pacific Law & Policy Journal Vol. 14:1 minimum restrictions on land alienation to protect the culture and traditions of the people, prevent exploitation of the people, and promote economic advancement and self-sufficiency.197 The framers sought to include those “who [were] part of the community that . . . made the creation of the Commonwealth possible, and to exclude as nearly as possible only those persons who [were] not a part of that community.”198 These intentions were not merely “boilerplate justifications,”199 but rather, a compromise between the people of the CNMI and the United States in carrying out a political purpose. Furthermore, the NMD voter classification fulfills the purpose of Article XII, for it “reflects the importance of . . . [land] to the people of the Commonwealth and the judgment that only the people directly should be able to alter this provision.”200 The legislative history of the Covenant specifically authorized the CNMI government to maintain the land
(1969). 197 CNMI Covenant, supra note 7, art. VIII, § 805, 90 Stat. at 275. The legislative history of the CNMI Constitution provides more insight as to the purpose of the restrictions: The requirements with respect to land alienation in [Article XII] are the least restrictive way to achieve the . . . purpose [of Article XII] . . . . It does not prevent outsiders from using land in the Commonwealth. It permits the acquisition by persons from the United States, persons from other parts of the Trust Territory, and aliens of short-term and non-permanent interests in land. It permits a wide range of uses of land by such persons for commercial and personal purposes.
ANALYSIS OF THE CONSTITUTION OF THE COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS, supra note 12, at 167. 198 ANALYSIS OF THE CONSTITUTION OF THE COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS, supra note 12, at 167. The constitutional analysis further provides that the framers acknowledged that “no classification system based on neutral principles can be completely effective or error-free . . . [,] but erred on the side of including . . . persons who should be excluded rather than excluding . . . those persons who should be included [in the group].” Id. Moreover, during the Covenant negotiations, the U.S. Department of Justice “expressed the view . . . that properly drawn land alienation restrictions would be valid under the United States Constitution.” MARIANAS POLITICAL STATUS COMMISSION, supra note 146, at 118. 199 See Marybeth Herald, Does the Constitution Follow the Flag into United States Territories or Can it be Separately Purchased and Sold?, 22 HASTINGS CONST. L. Q. 707, 725 (1995). 200 ANALYSIS OF THE CONSTITUTION OF THE COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS, supra note 12, at 164 (emphasis added). 2012 Torres 183
alienation restriction for twenty-five years after the expiration of the Trusteeship Agreement. After the twenty-five years, the CNMI may continue to regulate land. In fact, it is “the responsibility of the local government to implement the [land alienation] provisions . . . [and] entirely up to the [CNMI government] and the people of the [CNMI] to determine the precautions [that] they will take to prevent their land from being alienated.”201 The legislative history of the CNMI Constitution strongly acknowledges that “the people,” referencing persons of NMD, be the ones to alter the provision. Despite the absence of an express provision to limit voting to NMDs in the Covenant, the framers intended that only NMDs be able to alter the provision if they choose.202 Moreover, because NMDs are the sole owners of land in the CNMI, it is only fitting that NMDs determine the political question of whether they still desire to restrict land ownership to NMDs. Just as Article XII sought to preserve the culture and traditions of the people, protect the people from exploitation, and promote economic advancement,203 so too does the NMD voter classification seek to fulfill the intent of Article XII. Critics of the land alienation restriction may argue that section 805204was not intended to be a permanent feature because of the twenty- five year time limit specified in the Covenant.205 The twenty-five year time period should not be interpreted as self-executing upon expiration and therefore, no longer of importance to the people.206 If the land alienation restriction was not intended to be permanent, then the United States and the CNMI could have expressly made the restriction temporary
201 MARIANAS POLITICAL STATUS COMMISSION, supra note 146, at 117. 202 The legislative history of the CNMI Constitution sheds light on the framers’ intent: [T]he acquisition of permanent and long-term interests in real property in the Commonwealth be restricted to persons of [NMD] . . . . This reflects the importance of this subject to the people of the Commonwealth and the judgment that only the people directly should be able to alter this provision.
ANALYSIS OF THE CONSTITUTION OF THE COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS, supra note 12, at 164. 203 CNMI Covenant, supra note 7, art. VIII, § 805, 90 Stat. at 275. 204 Section 805 is implemented by Article XII of the CNMI Constitution. 205 Id. § 805(a), 90 Stat. at 275. 206 Indeed, the Wabol court admitted that, “absent the [land] alienation restriction, the political union would not be possible.” Wabol v. Villacrusis, 958 F.2d 1450, 1462 (9th Cir. 1992). 184 Asian-Pacific Law & Policy Journal Vol. 14:1
and fashion the appropriate language in the Covenant. But the parties did not. The land alienation restriction was so fundamental that it was included in the mutual consent provision, which limited the authority of the United States and the CNMI to modify the restriction.207 Because the CNMI and United States have consented to regulate land through the mutual consent process, the twenty-five year time frame, in and of itself, does not extinguish the restriction, and the United States and CNMI governments lack authority to unilaterally remove the land alienation restriction absent mutual consent of both governments. Indeed, the land alienation restriction remains fundamental to the Covenant and the relationship between the CNMI and United States, but the integrity of the mutual consent provision is only guaranteed by the integrity of the U.S. government and its institutions.208 Ultimately, the right to vote itself is not being denied. The restriction is the right to vote on a political question. The vote derives from the right itself,209 and because the right to acquire a permanent and long-term interest in land and “the right to an equal vote”210 are not fundamental for the “basis of all free government,”211 there is no constitutional violation of the Fourteenth or Fifteenth Amendments.212 The NMD voter classification furthers the political purpose of the land alienation restriction. To remove the NMD voter classification would offend the very purpose of the restrictions—one of the key provisions
207 CNMI Covenant, supra note 7, art. I, § 105, 90 Stat. at 264. In order to respect the right of self-government guaranteed by this Covenant[,] the United States agrees to limit the exercise of [its] authority so that the fundamental provisions of this Covenant, namely Articles I, II[,] and III and Sections 501 and 805, may be modified only with the consent of the [U.S. and CNMI governments]. Id. 208 Similarly, the only guarantee to the right of self-government in the CNMI, aside from the language of the Covenant itself, is the “public conscience and opinion and . . . integrity of [the United States and] its institutions, including the courts.” Camacho, supra note 15, at 13 (citing Sablan v. Iginoef, 1 N.M.I. 146, 156 (1990)). 209 This argument sprouted from discussions with Guam attorney Leevin T. Camacho. Telephone Interview with Leevin T. Camacho, Att’y, The Law Office of Leevin T. Camacho (Feb. 22, 2012). 210 Cross Motion for Summary Judgment, supra note 130, at 23. 211 Wabol v. Villacrusis, 958 F.2d 1450, 1460 (9th Cir. 1992). 212 Id. at 1462. 2012 Torres 185 during the Covenant negotiations that led to the CNMI’s current relationship with the United States. To remove the NMD vote would allow anyone, even non-NMDs who have gained residency after a short period of time, to vote on the fate of NMD land ownership—potentially leaving NMDs without a homeland.
B. Guam’s Native Inhabitants Voter Classification While the Covenant governs the NMD classification, the native inhabitants voter classification for Guam’s political status plebiscite will be governed by the 1950 Organic Act and its applicable constitutional provisions, including the Territorial Clause of Article IV213 and the Fourteenth and Fifteenth Amendments of the U.S. Constitution.214 These constitutional provisions have the “same force and effect” in Guam as they do in any U.S. state.215 Because Guam is also subject to Congress’ plenary power,216 Congress may unilaterally declare null and void any act of the Guam Legislature.217 Thus, Guam has no inherent right of self- government.218 But an important aspect in the analysis of the native inhabitants voter classification is Guam’s status as an unincorporated U.S. territory,219 where only fundamental rights apply.220 The lack of Guam precedent
213 Duty Free Shoppers, Ltd. v. Tax Com’r, 464 F. Supp. 730, 733-34 (D. Guam 1979) (discussing the applicability of the Territorial Clause in Guam). 214 48 U.S.C. § 1421b(u) (2012). Only the second sentence of section 1 of the Fourteenth Amendment applies to Guam. U.S. Const. amend. XIV, § 1 (“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”); 48 U.S.C. § 1421b(u). 215 48 U.S.C. § 1421b(u) (2012). In 1968, Congress added the applicable constitutional provisions through the Mink Amendment in 48 U.S.C. § 1421b(u). Guam v. Guerrero, 290 F.3d 1210, 1214 (2002). 216 Guam v. Guerrero, 290 F.3d 1210, 1214 (9th Cir. 2002) (citing Guam v. Okada, 694 F.2d 565, 568 (9th Cir. 1982)). 217 Anthony M. Babauta et al., U.S. Dep’t of the Interior Assistant Sec’y of Insular Affairs, 10 Things You Should Know About the Territories 4 (Jan. 26, 2012) (presentation on file with author). 218 Guerrero, 290 F.3d at 1214 (citing Okada, 694 F.2d at 568). 219 48 U.S.C. § 1421a. 220 N. Mar. I. v. Atalig, 723 F.2d 682, 688-89 (9th Cir. 1984) (citing e.g., Balzac v. Porto Rico, 258 U.S. 298 (1922); Dorr v. United States, 195 U.S. 138
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examining the specific constitutional challenge to the alleged race-based nature of the “native inhabitants” voter classification requires an evaluation of two Puerto Rico cases that provide some guidance on political status plebiscites. This will be discussed infra in the latter part of this section.221 Before reaching those cases, however, the threshold issue in determining the applicable level of scrutiny in Guam’s case is whether the classification of “native inhabitants” itself is racially or ethnically based. Here, Guam defines “native inhabitants” as those who became U.S. citizens through the 1950 Organic Act and their descendants.222 Like the definition of NMD, this definition is not inclusive solely of Chamorros and implements citizenship restrictions within its definition. The legislative history of the native inhabitants classification reveals that the legislature intended to restrict voting on the political status plebiscite to a political group, the “native inhabitants” of Guam,223 rather than the “Chamorros” of Guam.224 Though the legislature titled the statute that includes the definition of “native inhabitants” the “Commission on Decolonization for . . . Chamorro Self[-]Determination,”225 the substantive language in the statute specifically states that the voting restriction on the political status plebiscite seeks to determine the desire of “native inhabitants,” not merely Chamorros.226 The definition of “native
(1904); Hawaii v. Mankichi, 190 U.S. 197, 216-18 (1903)). 221 Barbosa v. Sanchez Vilella, 293 F. Supp. 831 (D.P.R. 1967); New Progressive Party (Partido Nuevo Progresista) v. Hernandez Colon, 770 F. Supp. 646 (D.P.R. 1991). The defendants’ motion to dismiss in Davis v. Guam discusses relevant parts of Barbosa and Hernandez Colon as it relates to the challenge to the native inhabitants voter classification. Motion to Dismiss, supra note 28, at 6- 8. Because Puerto Rico is also an unincorporated territory, Puerto Rico precedent provides a useful analysis on the treatment of political status plebiscites. I expand on the points made in the motion to dismiss. 222 1 GUAM CODE ANN. § 2102(b) (2011). 223 Guam Pub. L. 25-106 (2000), § 1. 224 The legislature also amended the definition of Chamorro in the Chamorro registry to include inhabitants of Guam on April 11, 1899; those absent from Guam temporarily on April 11, 1899, and were Spanish subjects; and those born on Guam before 1800 and their descendants. 3 GUAM CODE ANN. § 20001(a)(1)-(2)(i) (1997). 225 1 GUAM CODE ANN. 226 Id. at §§ 2101 (“It is the intention of [the Guam Legislature] that . . . political options be presented to the [n]ative [i]nhabitants of Guam to ascertain their future political relationship with the United States . . . .”); 2105 (“The general purpose of the Commission on Decolonization shall be to ascertain the
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inhabitants” on its face, those who became U.S. citizens through the 1950 Organic Act and descendants of those citizens,227 does not preclude non- Chamorros from voting on the political status plebiscite. Moreover, the legislative history of the definition reveals that the Guam Legislature specifically altered the definitional requirements for voter eligibility so as not to be inclusive solely of a racial or ethnic group.228 The legislature initially adopted a statute that required “Chamorro people of Guam,” to register. Even the definition of “Chamorro people” at the time was broadly defined as 1898 Guam inhabitants and descendents of those inhabitants.229 The legislature then amended the statute by eliminating the “Chamorro people” requirement and replacing the term with “native inhabitants,” a much broader requirement, so as not to be racially or ethnically based, but rather, politically driven.230 In the instant case, “native inhabitants” serves a political purpose in Guam’s exercise of self-determination through the decolonization process. Congress’ failure, for over a decade, to pass the Commonwealth Act granting Guam commonwealth status231 forced the Guam Legislature to begin the decolonization process itself. In its quest for decolonization, the Guam Legislature fashioned the political status plebiscite to conform to the international obligations of the United States in administering Guam as a non-self-governing territory.232 Ultimately, the vote on Guam’s political status is a political question to determine the intent of “native
intent of the [n]ative [i]nhabitants of Guam as to their future relationship with the United States . . . .”). 227 3 GUAM CODE ANN. § 21001(e). 228 The people of the Marianas were aware of the outcome of Rice, but nowhere in the legislative history did it specify that Rice prompted the change in the definition. 229 Guam Pub. L. 23-147, § 2(b). 230 Guam Pub. L. 25-106, §§ 21000, 21001(e). This definition was later codified. 3 GUAM CODE ANN. §§ 21000, 21001(e) (2000). The definition of “native inhabitants” is broader because anyone who became a U.S. citizen through the 1950 Organic Act, irrespective of race or ethnicity, satisfies the definition. In other words, if a non-Chamorro became a U.S. citizen through the 1950 Organic Act, the non-Chamorro would be considered a “native inhabitant.” 231 Guam Pub. L. 23-147 (1997). 232 Guam Pub. L. 25-106, § 6. 188 Asian-Pacific Law & Policy Journal Vol. 14:1
inhabitants” as to their political relationship with the U.S,233 not a statewide election to vote for state officials as in Rice.234 Also important is whether voting for the political status plebiscite is “fundamental.” Because constitutional provisions do not apply automatically to unincorporated territories, the definition of “fundamental” is different in the territorial context.235 What is considered “fundamental” in the territories is that which is “the basis of all free government.”236 For Guam, constitutional provisions apply through the 1950 Organic Act.237 Given the territorial definition of “fundamental,” a non-binding vote on political status is not “the basis of all free government.” A non-binding vote on political status is a means by which the native inhabitants will exercise self-determination and is therefore not fundamental. Two Puerto Rico cases, Barbosa v. Sanchez Vilella238 and New Progressive Party (Partido Nuevo Progresista) v. Hernandez Colon,239 provide guidance on the non-binding nature of a political status plebiscite, lending credence to the non-fundamental nature of a vote for Guam’s political status plebiscite.240 In those cases, the U.S. District Court for Puerto Rico maintained that political status plebiscites are merely “a vehicle for the people . . . to express their will.”241 The Barbosa court upheld the constitutionality of Puerto Rico’s 1967 political status
233 1 GUAM CODE ANN. § 2105 (2011). 234 Rice v. Cayetano, 528 U.S. 495, 498 (2000). 235 Guam v. Guerrero, 290 F.2d 1210, 1214 (9th Cir. 2002) (citing Balzac v. Porto Rico, 258 U.S. 298, 312-13 (1922); Dorr v. United States, 195 U.S. 138, 147 (1904)). 236 People v. Nuguid, No. 89–00073A, 1991 WL 336901, at *3 (D. Guam 1991); see Rayphand v. Sablan, 95 F. Supp. 2d 1133, 1138-39 (D. N. Mar. I. 1999) (considering whether the “one person-one vote” guarantee is fundamental, i.e., “the basis of all free government,” in the CNMI). But see Wabol v. Villacrusis, 958 F.2d 1450, 1460 (9th Cir. 1992) (providing that the “acquisition of long-term interest in land applies only if this guarantee is fundamental in [the] international sense”). 237 Guerrero, 290 F.2d at 1214 (citing Pugh v. United States, 212 F.2d 761, 762-63 (9th Cir. 1954)). 238 Barbosa v. Sanchez Vilella, 293 F. Supp. 831 (D.P.R. 1967). 239 New Progressive Party (Partido Nuevo Progresista) v. Hernandez Colon, 779 F. Supp. 646 (D.P.R. 1991.). 240 The defendants in Davis v. Guam utilize these two cases as support for their case. Motion to Dismiss, supra note 28, at 6-8. 241 Hernandez Colon, 779 F. Supp. at 655 (citing Barbosa, 293 F. Supp. at 833). 2012 Torres 189
plebiscite and deemed the case as non-justiciable because the plebiscite would not automatically change the rights or status of the people.242 Hernandez Colon involved a referendum that would alter Puerto Rico’s constitution, similar to the challenge in Barbosa in that the case dealt with a petition to Congress and the President to “respect” the rights of the people once they decided its future political status.243 Hernandez Colon cited to Barbosa and the similarity in the function of the referendum, specifically, that it would not automatically change the status of Puerto Rico.244 The court maintained that the referendum was merely “an expression of public opinion,” and results of the referendum would be proposed to Congress.245 The slight factual differences between the Puerto Rico cases involving a plebiscite and referendum and the current challenge to Guam’s voter classification for its political status plebiscite should not distract the court from the main purpose of Guam’s political status plebiscite.246 The rights or legal status of Guam residents would not change as a result of the non-binding referendum.247 Furthermore, Puerto Rico has held a number of political status plebiscites and its status remains unchanged, which reflects Congress’ treatment of the political status plebiscite. As a result of the passage of Law 283 in Puerto Rico, this November 2012, the people of Puerto Rico will decide on whether they desire a different status from the current commonwealth status.248 Law 283 mirrors H.R. 2499, which allowed Puerto Rico to hold an initial plebiscite on whether or not the people want to change its current commonwealth status.249 If the majority votes to maintain the status quo, then the Puerto Rican government will
242 293 F. Supp. at 832-33. 243 779 F. Supp. at 655. 244 Id. 245 Id. 246 See Opposition & Reply to Motion to Dismiss, supra note 27, at 18- 19 (emphasizing that Barbosa does not involve a denial of the right to vote and Hernandez Colon supports Davis because the court determined that the plaintiff had standing to challenge the referendum). 247 Barbosa, 293 F. Supp. at 832. 248 Act of Dec. 28, 2011, No. 283, 2011 P.R. Sess. Law (providing that Puerto Rico hold a plebiscite on November 6, 2012, to coincide with the general election); see Pedro Pierluisi, Puerto Rico Status Referendum is Historic, JURIST, Feb. 17, 2012, http://jurist.org/hotline/2012/02/pedro-pierluisi- referendum.php. 249 Although H.R. 2499 passed in the U.S. House of Representatives, it failed to pass in the U.S. Senate. H.R. 2499, 111th Cong., 2d Sess. (2010). 190 Asian-Pacific Law & Policy Journal Vol. 14:1
hold additional plebiscites—every eight years from the date of this year’s plebiscite—on its political status. If the majority votes for a different political status, then a second plebiscite will be held on whether the people desire independence, “sovereignty in association with the United States” under which Puerto Rico would not be subject to the Constitution’s Territorial Clause, statehood, or commonwealth status. Like Law 283, Guam’s political status plebiscite is only an initial step in determining the desires of its native inhabitants with respect to its future political relationship with the United States. Unlike Puerto Rico’s political status plebiscites, which have gained recognition in Congress250 and the executive branch,251 Guam’s political status plebiscite has yet to gain much recognition at either level of government. As previously mentioned, Congress failed to take any action on Guam’s draft Commonwealth Act, through which the majority of Guam’s voters voted for a commonwealth status.252 Though Guam’s political status plebiscite is a result of Congress’ failure to act, its non- binding nature would not automatically change Guam’s political status, since Congress would have to agree to such a status. Guam’s plebiscite is closer to a local, internal plebiscite, as opposed to a plebiscite approved by Congress, as in Puerto Rico’s case, or a statewide election, as in Rice. Arguably, that the results of the plebiscite may affect all Guam residents may be viewed as fundamental. As the Puerto Rico cases demonstrate, however, no one’s status or rights will change as a result of the plebiscite. The fact that the results of Guam’s future political status plebiscite is not binding on the United States also infers that the vote on this particular plebiscite is not fundamental. Moreover, the political nature of the vote and the applicability of the Constitution are significant to the analysis. The political status plebiscite involves a political question concerning the political status of Guam, unlike a vote for the trustees of OHA in a statewide election in Rice. Only fundamental constitutional rights apply on Guam253 through the
250 See id. 251 ANTHONY BABAUTA ET AL., REPORT BY THE PRESIDENT’S TASK FORCE ON PUERTO RICO’S STATUS (2011), available at http://www.whitehouse.gov/sites/default/files/uploads/Puerto_Rico_Task_Force_ Report.pdf; MAGGIE GRANT ET AL., REPORT BY THE PRESIDENT’S TASK FORCE ON PUERTO RICO’S STATUS (2007), available at http://www.justice.gov/opa/documents/2007-report-by-the-president-task-force- on-puerto-rico-status.pdf. 252 THE POLITICAL STATUS EDUCATION COORDINATING COMMISSION, supra note 98. 253 N. Mar. I. v. Atalig, 723 F.2d 682, 688-89 (9th Cir. 1984) (citing e.g., Balzac v. Porto Rico, 258 U.S. 298 (1922); Dorr v. United States, 195 U.S. 138
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1950 Organic Act, as opposed to all constitutional rights that apply in Rice. Applying the same analysis utilized in Wabol, a political status plebiscite involving a political question is not fundamental and, thus, is not constitutionally offensive. Not only is Guam’s definition of “native inhabitants of Guam” intended for a political purpose, but it is also race- neutral in its definition and effect because it utilizes time and citizenship requirements in creating the group “native inhabitants of Guam.” The definition of “native inhabitants” is also more inclusive than the “race- based” definitions of “native Hawaiian” and “Native Hawaiian” used for the OHA trustee elections in Rice.254 Again, voting originates from the right itself,255 and if that right is not fundamental, as is the case here, then it is not constitutionally offensive. To remove the “native inhabitants” voter classification would be contrary to the United States’ obligation to the native inhabitants of Guam, under the Treaty of Paris, to protect their political rights and inalienable right to self-determination.256 To remove the classification would leave unresolved the issue of the desire of native inhabitants as to their future relationship with the United States. To allow anyone to vote in the political status plebiscite would enfranchise those who merely stay on Guam long enough to become a resident to vote on the fate of native inhabitants, diminishing the self-determination efforts of native inhabitants. Moreover, constantly prolonging the political status plebiscite is an injustice to Guam’s native inhabitants. Guam’s political status thus remains vague due to Congress’ inaction on the draft Commonwealth Act, the time necessary to set up the political status process, and the setbacks posed by the current challenge to the plebiscite.
III. A CALL FOR TERRITORIAL PRINCIPLES TO RESOLVE CONSTITUTIONAL CHALLENGES AND DISPARATE TREATMENT OF UNINCORPORATED TERRITORIES The constitutional challenges to voter classifications in the CNMI and Guam involve struggles with self-determination and are part of a larger issue of disparate treatment of unincorporated U.S. territories. The special relationship between the unincorporated territories and the United States is widely acknowledged, as seen in the treatment of the
(1904); Hawaii v. Mankichi, 190 U.S. 197, 216-18 (1903)). 254 Rice v. Cayetano, 528 U.S. 495, 515-17 (2000). A non-Chamorro who became a U.S. citizen through the 1950 Organic Act, for instance, is a “native inhabitant.” 255 Telephone Interview with Leevin T. Camacho, supra note 209. 256 1 GUAM CODE ANN. § 2101 (2011). 192 Asian-Pacific Law & Policy Journal Vol. 14:1 unincorporated territories in the Insular Cases, in which the U.S. Supreme Court held that only fundamental personal rights apply in unincorporated territories.257 While the CNMI has a special relationship with the United States through the Covenant, Guam, on the other hand, has a special relationship with the United States through the 1950 Organic Act. Yet, both are unincorporated territories of the United States. The special relationship is somewhat blurred because Guam has been a non-self- governing territory since 1946,258 whereas the CNMI has achieved its political status and progressed as a self-governing territory under the terms of the 1976 Covenant.259 The apparent disparate treatment amongst the unincorporated territories further complicates the U.S.-territorial relationship. The CNMI, Guam, American Samoa, Puerto Rico, and the U.S. Virgin Islands are all unincorporated U.S. territories.260 Yet only the CNMI and Puerto Rico are self-governing unincorporated territories, while Guam and the Virgin Islands are non-self-governing unincorporated territories. Moreover, the territories have unequal representation in Congress and no voting rights with respect to Presidential elections. Each unincorporated territory has a non-voting delegate in the U.S. House of Representatives261 but does not have a single representative in the U.S.
257 Atalig, 723 F.2d at 688-89 (citing e.g., Balzac, 258 U.S. 298; Dorr, 195 U.S. 138; Mankichi, 190 U.S. at 216-18). Rose Villazor briefly discussed the UNDRIP as it relates to the territories’ exercise of self-determination. Villazor I, supra note 43, at 835-36. My conclusion concerning these territorial principles expands Villazor’s discussion and evaluates key principles that should be considered in the development of a territorial doctrine. 258 Peter Ruffatto, Comment, U.S. Action in Micronesia as a Norm of Customary International Law: The Effectuation of the Right to Self- Determination for Guam and Other Non-Self-Governing Territories, 2 PAC. RIM L. & POL’Y J. 377, 384 (1993). 259 See Van Dyke, supra note 14, at 628-30. The Covenant went into full effect in 1986. See MCPHETRES, supra note 34, at 61. 260 Guam is an organized territory, which means that it was established under an organic act of the U.S. Congress, while American Sāmoa is an unorganized territory because its government structure was not established by an organic act. Van Dyke, supra note 14, at 450. Unlike organized and unorganized territories, commonwealths, like the CNMI and Puerto Rico, acquire its authority from the U.S. Congress and the citizens of the territories. Id. at 451. Commonwealths also have more self-government and flexibility in terms of its political relationship. Id. 261 Though each delegate may sit on committees, introduce bills, and vote in committees, they cannot vote on the final passage of bills and budgets. Van Dyke, supra note 14, at 469 (citing Leibowitz, supra note 45, at 7-8, 286, 342; 48
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Senate262—“essentially only advocates for the needs of their people rather than functioning legislators . . .” for the territories.263 U.S. citizens in the territories are also not allowed to vote in the Electoral College or for the U.S. President.264 Thus, the people in the territories lack representation at the congressional and executive levels of the national government. The disparate treatment of the territories is not uncommon, as the federal relationship with indigenous groups in offshore territories generally differ from that of the continental United States. An obvious example is the lack of a federal recognition process for Native Hawaiians and a lack of government-to-government relationship with Native Hawaiians, both of which are afforded to Native Americans and Alaska Natives. Indigenous groups in the CNMI and Guam do not have similar access to federal recognition. Indeed, the CNMI has a unique relationship with the United States through the Covenant, and Guam has a unique relationship with the United States through the 1950 Organic Act. But the CNMI and Guam, along with the rest of the territories, are excluded from the administrative process for federal recognition.265 A. Guidance from the UNDRIP In view of the differential treatment of the territories, it is a moral imperative for Congress to formalize a territorial doctrine by adopting a set of territorial principles based on the UNDRIP.266 The territorial
U.S.C. §§ 1711 (1972), 1731 (1978)). 262 Id.; see generally Babauta et al., supra note 217, at 16. 263 Van Dyke, supra note 14, at 469. 264 Babauta et al., supra note 217, at 16. 265 25 C.F.R. §§ 83.1, 83.3(a), 83.7. The Department of Interior established specific administrative regulations for federal recognition, but the regulations explicitly exclude tribes outside of Alaska and the “contiguous” forty- eight states. §§ 83.1, 83.3(a); see Villazor I, supra note 43 (providing a detailed analysis on the exclusion of Native Hawaiians and indigenous peoples in the U.S. territories from the current Department of Interior’s administrative regulations for federal recognition). 266 In formulating territorial principles governing U.S. unincorporated territories, it should be noted that the U.S. Constitution limits options for governance outside the continental U.S. Letter from U.S. Dep’t of Justice Office of Legislative Affairs to Frank H. Murkowski, U.S. Senate Chairman of Committee on Energy and Natural Resources (Jan. 18, 2001), in GRANT ET AL., supra note 250, app. E at 5. A territory could eventually become a sovereign nation (i.e., an independent nation) like the Philippines, or it could remain under the sovereignty of the United States through statehood, like Alaska and Hawai‘i. See id. Aside from independence, the only other political status option available is free association. See id. The territorial principles for application in this paper
194 Asian-Pacific Law & Policy Journal Vol. 14:1 principles will minimize the differential treatment of the territories and serve as a guidepost for judicial review and decisions on territorial cases. The Insular Cases267 and other notable cases, like Atalig268 and Wabol,269 establish important judicial precedent, but they are not sufficient to narrow or eliminate such differences without a congressional declaration of territorial principles. To fully address fundamental issues confronting the right to self- determination underlying the current challenges to the NMD and native inhabitants voter classifications, a set of guiding principles based on the UNDRIP is instructive.270 Specifically, Congress should immediately adopt the fundamental principles embedded in Articles 3, 4, 11(1), 26, and 27 of the UNDRIP as interim principles.271 Articles 3 and 4 respectively focus on the right of indigenous peoples to self-determination and the right of self-government;272 Article 11(1) recognizes the right to practice and preserve culture and customs;273 and Article 26 highlights the right to own, use, develop, and control indigenous land.274 To form principles on the would provide governance guidelines for unincorporated offshore territories of the United States—the CNMI, Guam, American Sāmoa, Puerto Rico, and the U.S. Virgin Islands. These territories remain under the sovereignty of the United States and are subject to the plenary authority of Congress.
267 N. Mar. I. v. Atalig, 723 F.2d 682, 688-89 (9th Cir. 1984) (citing Balzac v. Porto Rico, 258 U.S. 298 (1922); Dorr v. United States, 195 U.S. 138 (1904); Hawaii v. Mankichi, 190 U.S. 197, 216-18 (1903)). 268Atalig, 723 F.2d 682. 269 Wabol, 958 F.2d 1450. 270 The principles derived from the UNDRIP, focused on indigenous peoples in particular, are useful in establishing a consistent framework in the treatment of the territories. The extent to which the identities of colonized peoples overlap with indigenous peoples is beyond the scope of my analysis. See Julian Aguon, On Loving the Maps Our Hands Cannot Hold: Self-Determination of Colonized and Indigenous Peoples in International Law, 16 ASIAN PAC. AM. L.J. 47, 52-73 (2012) (discussing “who constitutes a people for purposes of self- determination” under international law). 271 UNDRIP, supra note 32, art. 3, 4, 11(1), 26, 27. Upon the adoption of interim principles, each territory should determine how to implement each principle and whether more principles should be added. Should the territories find it necessary, the territories may revisit the principles and amend the principles during a certain time period. 272 Id. art. 3, 4. 273 Id. art. 11(1). 274 Id. art. 26. 2012 Torres 195
treatment of indigenous peoples in the territories requires a four-step acknowledgement process of the following: (1) the right to self- determination, (2) the right to internal autonomy or self-government, (3) the right to practice and preserve culture and customs, and (4) the right to own, use, develop, and control land. 1. Right to Self-Determination The first step in the process of formulating principles governing the territories involves acknowledging the indigenous peoples’ right to self-determination. The UNDRIP defines self-determination as the right to “[f]reely determine . . . political status and freely pursue . . . economic, social[,] and cultural development.”275 Acknowledging the right to self- determination means that issues regarding political status should be resolved. Although the political status of non-self-governing territories (like Guam) remains vague, the status of the CNMI appears to have a more defined political relationship with the United States through the Covenant, which recognizes the people’s right of self-government.276 The mutual consent provision in the Covenant limits the United States’ authority to modify certain fundamental provisions of the Covenant, including the land alienation provision in section 805.277 The Covenant also allows the people to control its internal affairs, thereby providing more flexibility for the CNMI to pursue its economic, social, and cultural development needs.278 On the other hand, Guam’s political relationship with the United States stems from the 1950 Organic Act, which can be unilaterally altered by Congress. The right to self-determination has yet to be exercised because Guam has yet to resolve its political status. Even the planned
275 Id. art. 3. 276 CNMI Covenant, supra note 7, art. I, § 103, 90 Stat. at 264. Indeed, the United States may enact legislation that affects the CNMI if the CNMI is directly named in the legislation. Id. § 105, 90 Stat. at 264. But the fundamental aspects of the Covenant cannot be changed without the mutual consent of the CNMI and United States. Id. 277 Id. 278 Id. § 103, 90 Stat. at 264. Internal affairs include immigration, customs, minimum wage, and taxes. However, the federal government recently took over immigration and minimum wage will continue to increase until it reaches the federal minimum wage. See Haidee V. Eugenio, Feds Take over CNMI Immigration, SAIPAN TRIBUNE, Nov. 28, 2009, http://www.saipantribune.com/newsstory.aspx?newsID=95446&cat=1; see Haidee V. Eugenio, $5.55 an Hour Both ‘Good, Bad’, SAIPAN TRIBUNE, Sept. 26, 2012, http://www.saipantribune.com/newsstory.aspx?newsID=122191&cat=1. 196 Asian-Pacific Law & Policy Journal Vol. 14:1
political status plebiscite limited to native inhabitants would not necessarily compel Congress to change Guam’s present unknown political status as an unincorporated territory. Guam’s current political relationship with the United States stifles its ability to “freely pursue” economic, social, and cultural development. Once the political status of Guam is determined, then dialogue on self-determination for Guam may officially begin. Perhaps the draft Commonwealth Act, which provides for the process of self-determination, could be used as a means to incorporate Guam’s ideas of self-determination.279 2. Right to Internal Autonomy or Self-Government By recognizing the right to self-determination, Congress must afford the second step in the process, granting the people the right to internal autonomy or self-government.280 The CNMI already has this provision in section 103 of the Covenant,281 but Guam does not enjoy the same right under the 1950 Organic Act. Establishing territorial principles would allow for consistency in the treatment of the territories. Ultimately, the right to self-government in exercising self-determination is critical in laying the foundation for the rest of the principles to be adopted. The right of internal autonomy or self-government should also be based on the principle of inherent sovereignty as articulated in federal Indian law. Inherent sovereignty in federal Indian law is the idea that indigenous peoples had absolute authority over their peoples and territory prior to any foreign contact; moreover, this inherent sovereignty has never been extinguished.282 The principle could draw from the language of section 103 of the Covenant, which explicitly provides the people of the CNMI the right of self-government.283 Because section 103 cannot be amended without the mutual consent of the CNMI and the United
279 See generally THE POLITICAL STATUS EDUCATION COORDINATING COMMISSION, supra note 98, at 168 (internal quotations omitted). 280 Under international law, self-determination is much broader than self- government. See Aguon, supra note 269, at 51, 53, 68-69. Self-determination does not necessarily equate to self-government, and self-government is “less than” self-determination. 281 While the United States may enact legislation that affects the CNMI, if the CNMI is directly named in the legislation, the fundamental aspects of the Covenant cannot be altered without the mutual consent of the CNMI and United States. CNMI Covenant, supra note 7, art. I, § 105, 90 Stat. at 264. 282 United States v. Wheeler, 435 U.S. 313, 322-23 (1978) (citing F. COHEN, COHEN’S HANDBOOK OF FEDERAL INDIAN LAW 122 (1945)). 283 CNMI Covenant, supra note 7, art. I, § 103, 90 Stat. at 264. 2012 Torres 197
States,284 this provision is one of the enduring features of the special relationship with the United States. On the other hand, Guam is under U.S. authority through the 1950 Organic Act, which does not guarantee the right of self-government. But Guam could make a compelling case that by signing the Treaty of Paris, the United Stats is obligated to respect the native inhabitants’ inalienable right to self-determination, including the right to internal autonomy or self-government.285 Respecting the right to internal autonomy or self-government also means providing a process for improved status as indigenous peoples. 3. Right to Practice and Preserve Culture and Customs Related to the right to internal autonomy or self-government, the third step in the process of establishing territorial principles is acknowledging the right to practice and preserve cultural rights and customs. Cultural rights in the Article 11 of the UNDRIP include “the right to maintain, protect[,] and develop the past, present[,] and future manifestations of . . . [culture],” whether it be historical sites, artifacts, visual and performing arts, or literature.286 The preservation of language and protection of traditional medicinal and hunting practices in the CNMI and Guam are especially significant. Recognizing the right to preserve and perpetuate the language gives the indigenous people of the Marianas the ability to seek more funding for indigenous language programs, just as Native Hawaiians have tapped into various funding sources for their immersion programs to perpetuate the Hawaiian language.287 By recognizing cultural rights, Congress should also protect traditional medicinal and hunting practices. Natives in the Marianas continue to gather local herbs for ailments, hunt deer, and catch coconut crab and fruit bats, as did their ancestors. Just as the bald eagle or the whale are culturally sacred to some Native American groups and as kalo is sacred to Native Hawaiians, so too are deer, coconut crab, and fruit bat culturally significant to the indigenous people of the Marianas. With the current federal prohibition on fruit bat hunting288 and local regulations on
284 Id. § 105. 285 1 GUAM CODE ANN. § 2101 (2011). 286 UNDRIP, supra note 32, art. 11(1). 287 See DEP’T OF EDUC. STATE OF HAW. OFFICE OF CURRICULUM, INSTRUCTION AND STUDENT SUPPORT/INSTRUCTION SERVICES, HISTORY OF KA PAPAHANA KAIAPUNI HAWAI‘I, available at http://www.k12.hi.us/~kaiapuni/HLIP/history.htm (last visited Apr. 23, 2012). 288 The fruit bat is dubbed the “Mariana fruit bat” in the regulations. 50 C.F.R. § 17.11(h). 198 Asian-Pacific Law & Policy Journal Vol. 14:1
deer hunting and coconut crab harvesting,289 the indigenous people are unable to freely practice their cultural traditions. Indeed, preservation of cultural rights also means ensuring that certain species do not become endangered and natural resources are not obliterated. Perhaps Congress could use culturally sensitive restrictions related to traditional and customary rights similar to those implemented in Hawai‘i’s Constitution290 as a means to resolve this issue. 4. Right to Own, Use, Develop, and Control Land The previously discussed cultural rights and customs also involve the fourth step in the process of setting uniform territorial principles— protecting the indigenous peoples’ right to own, use, develop, and control land. Article XII of the CNMI Constitution provides a framework for Congress to utilize in protecting land rights. Article XII acknowledges the importance of land in protecting the people from exploitation and in promoting their self-sufficiency and economic advancement and limits land ownership to persons of NMD. Guam does not enjoy the same restrictions under the 1950 Organic Act, although there is a Chamorro Land Trust that controls certain public lands.291 Because Guam lacks a land alienation restriction, the native inhabitants have lost vast acres of land to outsiders. With an open land market, the entire island could potentially be bought and sold to foreigners. Strategies to consider in adopting a land alienation restriction include citizenship, geography, time, and blood quantum. Recognizing the significance of land rights and implementing a land alienation restriction would not only protect indigenous land, but would also ensure that the indigenous people will always have a homeland, one that will not be exploited at the hands of foreigners. Adopting the aforementioned principles is especially significant for the CNMI and Guam. For the CNMI, the adoption of principles would mean that Congress respects the culture and traditions of the people of the
289 Current restrictions on deer hunting and coconut crab catching have both a time limitation and a bag or catch limitation. DIVISION OF FISH AND WILDLIFE COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS, HUNTING REGULATIONS, http://www.dfw.gov.mp/Enforcement/Hunting%20Regulations.html. 290 HAW. CONST. art. XII, § 7. 291 21 GUAM CODE ANN. (1975). The Chamorro Land Trust manages available public lands on Guam as part of the “social, cultural[,] and economic development and well-being of the Chamorro people . . . .” CHAMORRO LAND TRUST COMMISSION, ABOUT CLTC, available at http://cltc.guam.gov/about-cltc/ (last visited Apr. 23, 2012). 2012 Torres 199
CNMI, “which are uniquely tied to the land.”292 Such governing principles are consistent with the Trusteeship Agreement, which unequivocally required the United States “to protect [the people] against the loss of their lands and resources . . . and . . . protect [their] rights and fundamental freedoms . . . .”293 For Guam, these principles would mean that the United States recognizes the unique political and legal status of Guam. It would mean that the United States recognizes its obligations under the Treaty of Paris to protect the political rights of native inhabitants and their right to self-determination.294 Overall, these principles will guide judicial decisions in analyzing constitutional challenges on NMD and native inhabitants voter classifications and other political issues that arise in the territories. B. Applying the Principles in Resolving Territorial Issues To be successful, the territories must carve out their own process that directly addresses the specific needs of the respective territories, especially the CNMI and Guam. The process should start with adopting defined principles that specifically recognize the rights of indigenous peoples in the territories. Adopting principles to determine issues that affect the territories will be more effective and encourage predictability in the results. These principles must be crafted in a way that would weigh strongly in the eyes of Congress and the judiciary. Such principles cannot merely be implemented in a congressional resolution, as with the Apology Resolution, which acknowledged the historical wrongs of the United States in its treatment of Hawai‘i and its people.295 Though the Apology Resolution was a critical step in the United States’ reconciliation efforts with Hawaiians and reiterated the special relationship between Native Hawaiians and the United States, it failed to justify the OHA trustee voter classification in Rice.296 Nowhere in the Court’s opinion did it reference the Apology Resolution in its analysis of the voter classification, minimizing the policy significance and solidity of the Apology Resolution. It is thus critical for the territories to formulate principles that address their needs—protecting the indigenous peoples’ right to self- determination; right to internal autonomy or self-government; right to practice and preserve culture and customs; and right to own, use, develop,
292 Wabol v. Villacrusis, 958 F.2d 1450, 1452 (9th Cir. 1992). 293 Id. at 1458 (internal quotations omitted) (citing Trusteeship Agreement art. 6, §§ 2-3). 294 1 GUAM CODE ANN. § 2101 (2011). 295 Apology Resolution, supra note 192. 296 528 U.S. 495 (2000). 200 Asian-Pacific Law & Policy Journal Vol. 14:1 and control land. Adopting these principles would guide the judiciary’s analysis in determining territorial issues, especially fundamental political and cultural issues that involve the indigenous people. Before going into any territorial cases, U.S. federal courts must first look to the congressionally implemented territorial principles as the foundation for all territorial analyses. Upon close examination of these principles, federal courts should focus on three areas in their territorial analyses: (1) governing documents within the territories, (2) cases specifically dealing with the issue in the respective territory, and (3) similar cases in other territories. Step one in the process would be to look to the governing documents of the territories (e.g., the Covenant and 1950 Organic Act) and their legislative history. If that fails to address the issue, then the court should then consider local territorial and federal court cases dealing with territorial issues in the respective territory. The Insular Cases297 could provide a framework for part of the court’s analysis, as it has recognized the unique status of unincorporated territories. Territorial precedent has also consistently recognized the unique status of the territories, as in Atalig,298 Wabol,299 and Rayphand.300 It is only fitting that all federal courts utilize cases that specifically deal with territorial issues to guide its constitutional analyses. If neither of the first two steps addresses the issue, then step three in the
297 The Insular Cases includes a number of U.S. Supreme Court cases, but for purposes of my analysis, I refer to the cases that specifically deal with the application of the Constitution in the territories. Downes v. Bidwell, 182 U.S. 244 (1901); Hawaii v. Mankichi, 190 U.S. 197 (1903); Dorr v. United States, 195 U.S. 138 (1904); Rassmussen v. United States, 197 U.S. 516 (1905); Balzac v. Porto Rico, 258 U.S. 298 (1922). Although the Insular Cases laid the foundation for courts in the territorial analysis, it has also been the subject of much scrutiny because of its “flexibility” in its treatment of the territories. See Downes, 182 U.S. at 380 (Harlan, J., dissenting) (“The idea that this country may acquire territories anywhere upon the earth . . . [and] the people inhabiting them to enjoy only such rights as Congress chooses to accord to them,[—]is wholly inconsistent with the spirit and genius as well as with the words of the Constitution.”); see James A. Branch, Jr., The Constitution of the Northern Mariana Islands: Does a Different Cultural Setting Justify Different Constitutional Standards?, 9 DENV. J. INT’L L. & POL’Y 35, 37, 43 (1980) (criticizing the doctrine of incorporation and its unequal treatment of U.S. citizens). But see Krishanti Vignarajah, The Political Roots of Judicial Legitimacy: Explaining the Enduring Validity of the Insular Cases, 77 U. CHI. L. REV. 781 (2010) (supporting the principles established in the Insular Cases). 298 N. Mar. I. v. Atalig, 723 F.2d 681 (9th Cir. 1984). 299 Wabol v. Villacrusis, 958 F.2d 1450 (9th Cir. 1992). 300 Rayphand v. Sablan, 95 F. Supp. 2d 1133 (D. N. Mar. I. 1999). 2012 Torres 201
process would be to look to other territorial cases and perhaps the governing documents of the relevant territory to try to find comparisons or similarities. If a case deals with a novel territorial issue, however, then and only then should the federal courts be allowed to reference on point cases related to native peoples. As much as possible, the court should remain in the realm of territorial precedent to preserve the unique status of the territories and respect the integrity of its governing documents. Such analyses afford the CNMI and Guam the unique status they deserve in the eyes of the court. In view of the potential adoption of territorial principles, a convention similar to a constitutional convention should be held to address the following questions: What are the goals of adopting territorial principles? Is it to simply avoid current challenges to voter classifications, as in the CNMI and Guam? Is it to strengthen the political and legal status of the territories? Should the respective territories join forces in creating general territorial principles to be applied to all territories, or should each territory fashion its own principles specific to its territory? The interim territorial principles of the right to self-determination, right to internal autonomy or self-government, the right to practice and preserve culture and customs, and the right to land ownership; use; development; and control, should be fully articulated before other principles are considered. Perhaps in the future, the territories should be allowed to amend their principles with a mutual consent provision similar to that found in the CNMI Covenant. To begin the process of applying territorial principles, key issues regarding the political status of the territories must be resolved, as in the case of Guam. Future scholarship on the mutual consent doctrine and the different possibilities in fashioning the process of adopting territorial principles should be further explored.
CONCLUSION Until a coherent doctrine of territorial principles is clearly articulated and adopted by Congress, the territories are vulnerable to constitutional challenges that insult the very nature of their unique status and the laws that apply. Too often claimants have relied on Rice as the ultimate authority that speaks for all native groups, when Rice’s narrow holding should not weigh on the outcome of cases in the unincorporated territories. Yet because of the Court’s unwillingness to consider indigenous groups outside of the U.S. federal Indian structure, like Native Hawaiians, as having a special relationship with the United States, the relationship with offshore, unincorporated territories, such as Guam and the CNMI, becomes muddled and unclear. The lack of territorial principles with respect to indigenous peoples seems to permanently pigeonhole current and former territories like Hawai‘i, the CNMI, and Guam, in the eyes of the Court. 202 Asian-Pacific Law & Policy Journal Vol. 14:1
“The nature, the extent, and even the reality of [the] right of self- government [in the territories has] been and continue[s] to be subject to repeated threats, challenges and disputes by scholars, courts, legislators, and advocates of various kinds.”301 How much longer will the United States leave indigenous peoples of the territories vulnerable? Leaving questions of political significance unresolved by the lack of coherent territorial principles will continue to saddle the courts, ill-prepared to deal with these issues in the “international sense”—a grave injustice to the people of the territories and a grave injustice to the lives and land lost in the name of U.S. security interests. The process of formulating and adopting territorial principles must begin now to curtail the disparate treatment amongst the territories and the constitutional challenges that attack the territories’ unique political statuses, and to initiate a path towards reconciliation with the indigenous peoples of the territories.
301 Horey, supra note 190, at 245.