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 7 in the CNMI’s Article XII plebiscite 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