Guam’s Future Political Status: An Argument for Free Association with U.S. Citizenship I. INTRODUCTION II. GUAM’S HISTORY AS A U.S. COLONY AND ITS QUEST FOR U.S. CITIZENSHIP A. Guam’s Early Days as a U.S. Possession B. Guam’s Pursuit of a More Meaningful Status III. THE RIGHTS AND PROTECTIONS OF U.S. CITIZENSHIP A. U.S. Citizenship Generally B. U.S. Citizens of Guam IV. THE DOCTRINE OF INCORPORATION AND THE APPLICATION OF THE U.S. CONSTITUTION TO GUAM V. DUAL CITIZENSHIP IN U.S. LAW VI. THE POLITICAL STATUS OF FREE ASSOCIATION A. Free Association Generally B. U.S. Examples of Free Association: The Former Trust Territory C. The Case of the U.S. Virgin Islands D. Non-U.S. Examples of Free Association-Type Arrangements 1. Cook Islands-New Zealand 2. Channel Islands-United Kingdom 3. Faroe Islands & Greenland-Denmark 4. Dutch Affiliated Islands in the Caribbean E. Possible Model of Guam-U.S. Free Association VII. CONCLUSION I. INTRODUCTION For more than three hundred years, the island of Guam has been subjected to colonial rule and denied full self-governance.1 Spain claimed Guam in 1565, and established Spanish rule in 1668.2 After the Spanish-American War, Guam’s centuries-long colonizer formally ceded the island to the United States with the ratification of the Treaty of Paris in 1899.3 With the exception of a three-year period during World War II, when Japanese forces occupied Guam (1941 to 1944), the island has since remained under the control of the United States.4 At present, 1 Position Paper of the Task Force on Free Association, The Freely Associated State of Guam in Free Association with The United States of America 1 (Mar. 31, 2000) [hereinafter Position Paper] (unpublished position paper, on file with the Guam Commission on Decolonization and The Asian-Pacific Law and Policy Journal). 2 STANLEY K. LAUGHLIN, JR., THE LAW OF UNITED STATES TERRITORIES AND AFFILIATED JURISDICTIONS 399 (Lawyers Cooperative Publishing 1995) [hereinafter LAW OF UNITED STATES TERRITORIES]. Guam is the southernmost island in the Marianas chain of islands, in western Micronesia. Id. 3 Position Paper, supra note 1, at 1; LAW OF UNITED STATES TERRITORIES, supra note 2, at 36-37, 400. 4 Position Paper, supra note 1, at 1; Jon M. Van Dyke et al., Self-Determination for Nonself-governing Peoples and for Indigenous Peoples: The Cases of Guam and Hawai'i, 18 U. HAW. L. REV. 623, 626 (1996) [hereinafter Van Dyke, Self-Determination]. Guam’s Future Political Status 123 this island of U.S. citizens is “one of the oldest colonial dependencies in the world.”5 Currently, Guam is governed by an act of Congress, the Guam Organic Act of 1950.6 The powers given to Guam under the Organic Act, however, are “merely delegated powers that can be changed or taken away at the will of Congress.”7 Guam’s current political status is that of an organized, unincorporated territory of the United States—a territory that has a civil government established by Congress but is not considered to be in transition to statehood.8 The United Sates granted its citizenship to the “native inhabitants”9 of Guam with the signing of the Guam Organic Act; however, those who received their citizenship through this Act do not receive the full protections of the U.S. Constitution.10 Prior to Guam’s gubernatorial election of 1970, the President of the United States appointed Guam’s Governors, without any direct input from the people of the island.11 In 1972, Guam was allowed to elect one non-voting delegate to the House of Representatives, whose function has been little more than to serve as an advocate for Guam with no real power to affect legislation.12 Presently, the Department of Interior has oversight over Guam’s affairs, and the actions of the Governor of Guam are “subject to veto by the . Secretary of the Interior, just as 5 Van Dyke, Self-Determination, supra note 4, at 625. 6 Guam Organic Act, Pub. L. No. 630, 64 Stat. 384 (codified as amended at 48 U.S.C. 1421-1425 (1950)) [hereinafter Guam Organic Act]; PENELOPE BORDALLO HOFSCHNEIDER, A CAMPAIGN FOR POLITICAL RIGHTS ON THE ISLAND OF GUAM, 1899-1950 155 (Scott Russell ed., 2001) [hereinafter CAMPAIGN FOR POLITICAL RIGHTS]. Article IV of the Constitution (the Territories Clause) empowers Congress to legislate for territories such as Guam. U.S. CONST. art. IV, § 3, cl. 2; see also Charles H. Troutman, Partial Disposal Under the Territorial Clause: A More Permanent Status for Territories 4 (July 12, 1996) [hereinafter Troutman, Partial Disposal] (on file with the Guam Commission on Decolonization, the Office of the Compiler of Laws in Guam, and The Asian-Pacific Law and Policy Journal). 7 Troutman, Partial Disposal, supra note 6, at 4. 8 CAMPAIGN FOR POLITICAL RIGHTS, supra note 6, at 155-56; 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) [hereinafter Van Dyke, Evolving Legal Relationships]. 9 Guam Organic Act, supra note 6. U.S. citizenship was granted to those people born in Guam and there residing on April 11, 1899, and their descendants. Id. While this group was predominantly Chamorro, to use the term Chamorro would be technically imprecise when discussing those whose citizenship stands to be affected should a status change occur. Additionally, the native inhabitants of the islands of Rota, Tinian, and Saipan are also called Chamorro. Interview with Leland Bettis, Former Executive Director, Guam Commission on Decolonization (Jan. 8, 2002). See discussion infra Part III. B; see also infra nn.20 & 25. 10 Van Dyke, Self-Determination, supra note 4, at 626. See discussion infra Part III.B. 11 Id. at 626. 12 Van Dyke, Evolving Legal Relationships, supra note 8, at 469. Guam’s delegate is “allowed to sit on certain committees, can chair these committees or their subcommittees, can introduce legislation, and can vote in the committees or their subcommittees. [The delegate] cannot, however vote when the House meets in plenary session to consider final passage of legislation and budgets.” Id. (emphasis in original). 124 ASIAN-PACIFIC LAW & POLICY JOURNAL; Vol. 4, Issue 1 (Winter 2003) local legislation may be overridden by Congress.”13 Hence, despite being ruled by a representative democracy, the people of Guam have no meaningful representation and participation in the process by which the U.S. government continually makes laws and decisions that govern their lives.14 This small island in the western Pacific has been, and continues to be, of great strategic military importance to the United States,15 which may explain why the United States has been reluctant to give up complete control of Guam. During World War II, Guam served as a logistical center for U.S. military operations against the Japanese homeland, thereby contributing significantly to the end of the war in the Pacific.16 The U.S. military also used the island as the major staging area for heavy bombing during the Korean and Vietnam Wars, as well as for numerous subsequent military operations.17 After decades of actively seeking a voice in how their island is governed,18 the people of Guam are still pursuing their internationally recognized right to self-determination.19 Currently, the people of Guam continue their efforts to alter their colonial status; a plebiscite for self- 20 determination is expected to take place in Guam in the very near future. 13 TIDES OF HISTORY: THE PACIFIC ISLANDS IN THE TWENTIETH CENTURY 387 (K.R. Howe et al. eds., 1994) [hereinafter TIDES OF HISTORY]. 14 See Van Dyke, Evolving Legal Relationships, supra note 8, at 459. 15 Carl T.C. Gutierrez, An American Colony, WASH. POST, Oct. 9, 1996, at A19 [hereinafter Gutierrez, An American Colony]. Carl T.C. Gutierrez was Governor of Guam from 1995-2003, during which time he additionally served as Chairperson of the Commission on Decolonization. He was also the President of the Guam Constitutional Convention in 1977-79. National Governors Association, http://www.nga.org/governors (last visited Feb. 10, 2003). 16 Id. 17 Id. “When B-52s left Guam for the 33-hour round trip to unleash cruise missiles on targets in southern Iraq on Sept. 6, they were demonstrating more than just the ability of the United States to project global force with little or no allied assistance. The Air Force’s platform, Guam, was yet again legitimized as a vital national security asset, while better-placed allies created ‘no-fly-zones’ of their own for American military aircraft.” Id. 18 For further reading on Guam’s now-defunct pursuit of Commonwealth status, see, for example, Paul Lansing & Peter Hipolito, Guam’s Quest for Commonwealth Status, 5 UCLA ASIAN PAC. AM. L.J. 1 [hereinafter Lansing & Hipolito, Guam’s Quest]. See also Van Dyke, Self-Determination, supra note 4, at 626-29. 19 Declaration on the Granting of Independence to Colonial Countries and Peoples, G.A. Res. 1514, U.N. GAOR, 15th Sess., Supp. No. 16, at 66, U.N. Doc. A/4684 (1960) [hereinafter Declaration on the Granting of Independence to Colonial Countries and Peoples]. 20 Interview with Leland Bettis, Former Executive Director, Guam Commission on Decolonization (Jan. 8, 2002). A plebiscite was anticipated for November 7, 2002, with the “native inhabitants” taking part in the vote. However, the compilation of the Chamorro Registry (certifying those who meet the requirements of “native inhabitants”) is not complete; additionally, some residents of Guam have raised questions as to the legality of having a “native inhabitants” vote (as opposed to a vote open to all residents of Guam).