America’s Territories: Equality and Autonomy

by Howard Hills

Only Puerto Rico and American Samoa seem to know what they want.

Guam Syndrome

In the 1990’s, the local territorial government of Guam lobbied Congress to grant island residents “autonomy” under an enhanced version of the “commonwealth” regime of internal self-government. In doing so Guam sought to emulate but improve on the ambiguous terms of “autonomous commonwealth” which were adopted by Puerto Rico in 1952, and the Northern Mariana Islands in 1976.

But the Guam proposal for a new constitution and political status failed after Congress and the federal courts limited “autonomy” in Puerto Rico and NMI to local matters not otherwise governed by federal law, and defined territorial “commonwealth” as merely a revocable delegation of federal powers.  By the time Guam put its “commonwealth” proposal on the table in 1994, the U.S. Department of Justice declared “commonwealth” did not give any territory a vested right to any political status or governing model established by Congress.

Strike one.

On behalf of the indigenous Chamorro people of Guam, the government of that territory adopted a law to sponsor a plebiscite in which only Chamorros would be eligible to vote on the future political status of the island.  But the federal court in Guam declared that race based voting scheme to be unconstitutional discrimination against the non-Chamorro U.S. citizens of Guam.

Strike two.

Guam also seeks rights of U.S. citizenship equal to citizens in states of the union, but the federal courts have ruled it’s constitutionally permissible for Congress to treat U.S. citizens in “unincorporated” territories differently and less than equally compared to citizens in the states or even incorporated territories. Indeed, the U.S. Constitution itself allows fully equal representation in Congress and the Electoral College only for citizens of a state, making any remedy other than statehood less than equal.

Strike three.

Out on strikes, the choices now facing Guam are:

Status quo with less than equal rights and federal relations as determined under territorial powers of Congress;
Seeking permanent political union leading to equality though statehood or incorporation into an existing state;
Independence under supreme law of a separate sovereign government without U.S. citizenship;
Independence with “free association” treaty defining interim status terminable by both governments at will.

Until Guam chooses a realistic status or at least adopts a modern constitution it will continue to be governed by the Department of the Interior under an anachronistic 1950 federal territorial statue, organizing the local government based a neo-colonial pre-WWII model for imperial rule of off-shore territories.

U.S. Virgin Islands shows traits of Guam syndrome

The “three strikes you’re out” baseball metaphor evoked by Guam’s political status saga does not work in the case of USVI.  That’s because the territorial government in that territory has convened five constitutional conventions without ratifying a modern democratic form of local government to replace the arguably out-dated territorial regime established by Congress in 1954.

The inability of the USVI to accept a form of local constitutional self-government recognized by the U.S. demonstrates the impact of disappointment in the limits of “autonomy” that is the legacy of “commonwealth” in Puerto Rico and NMI.  Clearly, USVI has developed a bad case of Guam syndrome

Northern Mariana Islands suffers Guam syndrome

The Northern Mariana Islands was part of the same post-WWII United Nations trusteeship over Micronesia.  Three island nations were formed from the trust territory, under free association treaties with the U.S. that do not include U.S. citizenship or permanent union.

The NMI rejected free association as defined by the U.S. Congress and the United Nations.  Instead, the NMI opted for U.S. territorial status with U.S. citizenship.

Congress gave CNMI a state-of-the-art “commonwealth” federal territorial organizational statute, but CNMI’s attempts to go beyond the limited and revocable “autonomy” under its “commonwealth covenant” failed.

The later attempt by Guam to secure special rights and extraordinary sovereign privileges only resulted in a more heavy handed federal rejection of autonomy doctrines in Puerto Rico and USVI.

The CNMI too now suffers from the tell-tale symptoms of that Guam syndrome for the other territories.

American Samoa resists dispossession of homeland

America Samoa is the only territory that so far has not petitioned for a new or reformed political status, or replacement of the territorial constitution established under federal territorial law.

All five current territories organized and locally governed under federal territorial statutes are classified by federal court edict as “unincorporated.”

Originally classified confusingly as neither “aliens” nor “U.S. citizens” but rather “U.S. nationals,” the people of four unincorporated territories petitioned for classification as “U.S. citizens” by federal statute.

American Samoa correctly determined there was no real difference between limited rights and status of “nationals” and “citizens” in the unincorporated territories. Rather, and the only distinction is that “citizens” attain full equality upon moving to a state, but “nationals” must exercise the right to convert to status of “citizens” upon moving to a state to acquire fully equal rights.”

By not seeking “commonwealth” and state-like rights and treatment, “nationals” in American Samoa have sought and so far attained greater actual autonomy than “citizens” in territories suffering from the Guam syndrome. That includes preservation of local culture and customary communal land ownership traditions that could be threatened by more state-like treatment at the hands of Congress or the federal courts.

There is no federal court in American Samoa, and the federal footprint is very small compared to the other four territories.  Unlike the other four territories where Americans from the mainland and foreign business interests have dispossessed the local population of land and control the local economy, American Samoa retains strong social cohesion and economic insularity.

Recently, Guam-based advocates of political and legal doctrines symptomatic of Guam syndrome have attempted to use federal court litigation and proposed legislation in Congress to export the Guam equality/autonomy dichotomy to American Samoa. That includes multiple failed federal lawsuits and one rogue trial court ruling that if upheld would impose on American Samoa U.S. citizenship and state-like treatment that Guam seeks.

The government of American Samoa and its non-voting Delegate in the U.S. Congress intervened in the Fitisemanu case in Utah in opposition court mandated constitutional citizenship in the territory, based on the legal fact that the three American Samoan nationals who were plaintiffs recruited by “Equally American” lobbyists already had a right to U.S. citizenship based on living in a state. The elected leaders of American Samoa also are joining the U.S. in appealing the judge’s anomalous ruling.

That court ruling in the case Fitisemanu v. U.S. would introduce to American Samoa an aggravated case of Guam syndrome by extending greater state-like treatment, including federal takeover of some functions now managed autonomously by local authorities.  This intensification of federal power under the court’s ruling would be superimposed by the court over the opposition of the democratically elected territorial representatives.  Yet, it would not extend state-like political empowerment and rights to American Samoa.

“Equally American” special interest lobbyists representing failed “autonomist” ideological factions in Guam have imported Guam syndrome to the other four territories through autonomist and “commonwealth” networks in local territorial political parties.  Having been met with overwhelming opposition in American Samoa that prevented political success, the “Equally American” lobbyists decided on legal action asking federal courts to mandate in American Samoa what they could not achieve democratically.

The federal judge in Utah who ruled that the 14th Amendment national and state citizenship clause applies in American Samoa did not give any indication what other provisions of the Constitution apply in American Samoa. Nor did the court make it clear if its order permanently incorporates all five currently unincorporated territories into the federal union. Because that ruling does not guarantee full equality that comes only with statehood, the judge at least exercised minimal judicial restraint by staying his own order pending appeal.

Puerto Rico chooses equality with 10th Amendment sovereignty

Guam may be in the current vanguard of the “autonomist” and “commonwealth” doctrines, while also pursuing state-like treatment under the banner of its “Equally American” lobbying interests.  However, the Guam syndrome trapping Guam, NMI and USVI between autonomy and equality actually began in Puerto Rico during the 1940’s.

It took Puerto Rico 70 years to pierce the veil of ideological myths and recognize that seeking state-like treatment but not statehood, while also seeking special rights through “autonomy,” simply allowed the U.S. practice perpetual denial of self-determination  and full self-government.   It also allowed federal territorial officials to proclaim they would support whatever option the people chose, confident the people would never make a clear choice.

Ironically, by the time Guam syndrome had become pronounced in the NMI and USVI, now followed by recent American Samoa political status lawsuits, statehood had already won large majority votes in plebiscites on statehood conducted by Puerto Rico in 2012 and 2017.  Hopefully, it will not take 70 years for Guam, NMI and USVI to figure out autonomy without statehood and state-like treatment is a contradiction leading to an ideological, legal and political dead end.

The right of a defined body politic to attain a self-govening political status has been has recognized since 1941 as a right of all peoples throughout the world.  That was the year when the Atlantic Charter between U.S. and Great Britain articulated the principle of government by consent of the governed that became the central pillar of universal human rights under the United Nations Charter.

It is in that context that the voters of Puerto Rico have chosen statehood.   Puerto Rico now waits for Congress to meet its obligations and commitments under the Constitution to establish mechanisms for admission Puerto Rico into the union.

 

Howard Hills is former counsel on territorial status affairs in the Executive Office of the President, National Security Council and U.S. State Department.  He is author of the book Citizens Without A State with foreword by former U.S. Attorney General Richard Thornburgh.

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