Both sword and shield: The strategic use of customary law in the Commonwealth of the Northern Mariana Islands Item Type text; Dissertation-Reproduction (electronic) Authors Robbins, Helen A. R. Publisher The University of Arizona. Rights Copyright © is held by the author. Digital access to this material is made possible by the University Libraries, University of Arizona. Further transmission, reproduction or presentation (such as public display or performance) of protected items is prohibited except with permission of the author. Download date 06/10/2021 04:30:08 Link to Item http://hdl.handle.net/10150/280452 INFORMATION TO USERS This manuscript has been reproduced from the microfilm master. UMI films the text directly from the original or copy submitted. Thus, some thesis and dissertation copies are in typewriter face, while others may be from any type of computer printer. The quality of this reproduction is dependent upon the quality of the copy submitted. 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ProQuest Information and Leaming 300 North Zeeb Road, Ann Arbor, Ml 48106-1346 USA 800-521-0600 BOTH SWORD AND SHIELD: THE STRATEGIC USE OF CUSTOMARY LAW IN THE COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS by Helen A. R. Robbins Copyright © Helen Robbins 2001 A Dissertation Siabmitted to the Faculty of the DEPARTMENT OF ANTHROPOLOGY In Partial Fulfillment of the Requirements For the Degree of DOCTOR OF PHILOSOPHY In the Graduate College THE UNIVERSITY OF ARIZONA 2001 UMI Number: 3010250 Copyright 2001 by Robbins, Helen A. R. All rights reserved. UMI ® UMI Microform 3010250 Copyright 2001 by Bell & Howell Information and Learning Company. All rights reserved. This microform edition is protected against unauthorized copying under Title 17, United States Code. Bell & Howell Infonnation and Leaming Company 300 North Zeeb Road P.O. 60X1346 Ann Arbor. MI 48106-1346 2 THE UNIVERSITY OF ARIZONA ® GRADUATE COLLEGE As members of the Final Examination Committee, we certify that we have read the dissertation prepared by Helen A. R. Robbins entitled Both Sword and Shield: The Strategic Use of Customary Law in the Commonvealth of the Northern Mariana Islands and recommend that it be accepted as fulfilling the dissertation requirement for the Degree of Doctor of Philosophy -Krrf Mark Nichter ^ Date - Nancy J.-7 Pao Date / 5. ^ •g- ~<dc) Susan U- Philips Date Date Date Final approval and acceptance of this dissertation is contingent upon the candidate's submission of the final copy of the dissertation to the Graduate College. I hereby certify that I have read this dissertation prepared under my direction and recommend that it be accepted as fulfilling the dissertation requirement. Dissertation Director Susan U. Philips Date 3 STATEMENT BY AUTHOR This dissertation has been submitted in partial fulfillment of requirements for an advanced at The Uni_versity of Arizona and is deposited in the University Library to be made available to borrowers under rules of the library^. Brief quotations from this dissertation are allovwable without special permission, provided that accurate acknowledgement of source is made. Requests for pejrmisssion for extended quotation from or reproduction of this manuscript in whole or in part may be granted by the copyright holder. 4 ACKN0WI.ED6EMENTS I am indebted to the people in the Commonwealth of the Northern Mariana Islands and Guam who generously shared their time, stories, and thoughts with me. There were many Carolinians and Chamorros who welcomed me into their homes and lives. Numerous attorneys, government officials, and other professionals, both local and non-local, spent many hours explaining the complexity of the history, legal system, customs, and land tenure of the Mariana Islands. Without their help this dissertation would not have been possible. Unfortunately, in order to protect their privacy I am unable to thank or acknowledge most of them by name. I do, however, want to specifically thank the following people for their assistance and support. On Guam, I am grateful to Hiro Kurashina, Rebecca A. Stephenson, and Omaira Bruan-Perry, and Vince Diaz for his kindness. On Saipan, many thanks go to Herbert S. Del Rosario and Tonny Goobaad at the CNMI Archives, the CNMI Superior Court and Brad Eliot, the court archivist. I am particularly grateful to Sam McPhetres for showing me around, lively discussions, and generously commenting on part of the dissertation. Obviously, any flaws are my own. To my committee, Nancy Parezo and Mark Nichter for their encouragement and thoughtful comments. I am especially beholden to Susan Philips for her unfailing support, mentoring, patience, and kindness. Thanks also go to Jane Hill, Dr. Don, and Jane Underwood. And to Carol Kramer for her constancy and faith. To my family and friends for their patience, love, and support. They have stood by me through it all. To Andrea Smith, Suzanna Bieger, Marcia West, Deborah House, Kathy Skelly, Anne Bennett, Julianna Acheson, Nancy Vuckovic, Marybeth McPhee, L & J, Jo Schneider, Kim Evenchik, Tommy Oldry, Jennifer Gilbert, and Karen Christopher for being there. To Joe Stefani for editorial help. Lea Monte for formatting assistance, and Eric, Freda, and Mr. Science for coaching me through this process. To Jennifer Gilbert for her excellent work editing the entire dissertation, but mostly her friendship. I am grateful to the following agencies for financial support. The Graduate Student Research Fund and the Emery and Ann—Eve Johnson Scholarship fund at the University of Arizona for funding my initial research. The generous support of the Law and Society Section of the National Science Foundation for funding my fieldwork through a Doctoral Dissertation Support Grant. Finally, I am thankful for the Dean's Fellowship from the Graduate College at the University of Arizona for funding the writing of the dissertation. TABLE OF CONTENTS ABSTRACT 7 CHAPTER 1: FIELD WORK IN THE COMMONWEALTH 8 Places 10 Documents 12 Contentious Cases 15 Bars, Cafes, Hotels, and. Offices; The Interview....18 Dissertation Summary 22 CHAPTER 2; HISTORICAL TRANSFORMATIONS IN THE MARIANA ISLANDS PREHISTORY TO 1945 26 Chamorro Origins 30 Initial Contact 37 Early Colonial Consequences 41 Erosion of Spanish Hegemony 46 Carolinian Arrival 51 Twentieth Century Colonialisms 58 Germany: Enlightened Self-interest 62 Japan: A New Kind of Colonial Imperative 68 The Northern Marianas Under Japanese Rule 73 Japan Prepares for War 85 War Comes to the Marianas 8 9 The Allied Invasion of the Marianas 92 CHAPTER 3: OUTPOST OR COLONY?: THE DEVELOPMENT OF THE TRUST TERRITORY OF THE PACIFIC ISLANDS 101 Administering the Northern Marianas: 1951-1962.... 115 Land Issues After the War 122 The Development of an American Legal System 129 Changes in Attitude: The 1960s 134 The Commonwealth Legal System 145 Contemporary Situation 148 CHAPTER 4: BROKEN LINKS: LAND AS CONTESTED SITE 155 Origins of Conflict and Confusion 157 Problems in the Chain of Title 157 Early Trust Territory Title Determinations....161 Land Sales During- the Japanese Administration. 164 Land Acquisition After the War 166 Public Lands in the Commonwealth 170 Public Lands and the Homestead Program 174 Carolinians: Biases in Land Allocation 177 Article XII: The Restriction of Land Ownership....180 Deeds of Gift 184 6 CHAPTER 5: THE INTERSECTION OF AMERICAN LAW AND CUSTOM IN THE CNMI 192 Legislative Determinations of Custom: The Probate Code 196 Cases and. Case Law 222 PartIda 232 Bias V. Bias 234 CHAPTER 6: BOTH SWORD AND SHIELD: THE STRATEGIC USE OF CUSTOM 245 Litigants and Attorneys 247 Equitable Estoppel and Traditional Mold: A Carolinian Example 248 The Problem of Experts 256 The Anthropologist as Expert 264 Summary 270 REFERENCES 280 ABSTRACT This dissertation is based on ethno-historic fieldwork in the Commonwealth of the Northern Mariana Islands (CNMI). In the CNMI there is a complex interaction of customary law within the framework of an American legal system. By studying land disputes in a historical context, I examine how custom is represented, reconfigured, and constructed through law and the dispute process. Law reflects and reproduces ideology through its relationship with the state while at the local level of the case one can analyze the specific ways individuals access, affect, and are affected by the legal system. Courts are a site for the production of meanings that includes state-level forces, such as the law and procedural rules, as well as the impact of individuals, such as attorneys, litigants, and witnesses 8 CHAPTER 1 FIELDWORK IN THE COMMONWEALTH When I first went to Micronesia in the fall of 1994 to determine the subject of my dissertation research, the last topic I wanted to study was land tenure. After all, research on land ownership and use was dull. I knew because I had been forced to read about it in several anthropology classes. Furthermore, in previous years, more than one anthropologist had told me that legal anthropology was pass6 and tedious. I, however, foxxnd legal research interesting. Nevertheless, I did not want to compound my research's potential for being boring by adding land tenure to the mix. Prostitution or the influence of organized crime in the Marianas sounded a lot more exciting.