Nicole Manglona Torres *

Transcription

1 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 I. HISTORICAL BACKGROUND: THE POLITICAL EVOLUTION OF THE CNMI AND GUAM A. The Case of the CNMI and Article XII B. The Case of Guam and the Political Status Plebiscite II. CURRENT CHALLENGES TO VOTER CLASSIFICATIONS IN THE CNMI AND GUAM A. The CNMI s NMD Voter Classification B. Guam s Native Inhabitants Voter Classification III. A CALL FOR TERRITORIAL PRINCIPLES TO RESOLVE CONSTITUTIONAL CHALLENGES AND DISPARATE TREATMENT OF UNINCORPORATED TERRITORIES A. Guidance from the UNDRIP Right to Self-Determination Right to Internal Autonomy or Self-Government Right to Practice and Preserve Culture and Customs Right to Own, Use, Develop, and Control Land B. Applying the Principles in Resolving Territorial Issues * 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!

2 2012 Torres 153 CONCLUSION INTRODUCTION Ancestry can be a proxy for race. 1 This destructive statement in Rice v. Cayetano 2 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 selfdetermination. 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 effect 5 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 plebiscite 7 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), (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 HAW. REV. STAT (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 Rice, 528 U.S. at Id. at See generally Ferdie de la Torre, US Citizen Sues to Be Allowed to Vote on Article 12 Issue, SAIPAN TRIBUNE, Jan. 4, 2012, 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

3 154 Asian-Pacific Law & Policy Journal Vol. 14:1 plebiscite 8 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 , 90 Stat. 263, 275 (1976) (codified at 48 U.S.C 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 See Zita Y. Taitano, Plebiscite Lawsuit Filed, MARIANAS VARIETY, Nov. 22, 2011, 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 N. Mar. I. Pub. L , 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

4 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, 12 ANALYSIS OF THE CONSTITUTION OF THE COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS 163 (1976), available at ion,% pdf GUAM CODE ANN (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 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, (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 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 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 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, (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, (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 ).

5 156 Asian-Pacific Law & Policy Journal Vol. 14:1 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 States 20 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, Tribune Staff, Opinion, Hawaii Vote Restriction Struck Down, SAIPAN TRIBUNE, Feb. 25, 2000, 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 CNMI Covenant, supra note PEDRO SANCHEZ, GUAHAN GUAM: THE HISTORY OF OUR ISLAND 302, (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 Congress has authority over Guam through the 1950 Organic Act. 48 U.S.C (2012).

6 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 Constitution 23 and the NMD registry in Public Law 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 CNMI CONST. art. XVIII, 5(c) GUAM CODE ANN (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 N. Mar. I. Pub. L 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 N. Mar. I. Pub. L , 2(c)(2)-(3). 25 Amended Complaint for Declaratory Judgment & Injunctive Relief at 1-2, Davis v. Commonwealth Election Comm n, No (D. N. Mar. I. Jan. 3, 2012). 26 Davis v. Commonwealth Election Comm n, 2012 WL , 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).

7 158 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 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 (D. Guam Jan. 3, 2012), available at 28 The Organic Act of Guam was implemented in 1950 and granted U.S. citizenship to inhabitants of Guam prior to August 1, SANCHEZ, supra note 18, at See generally Complaint at 4-5, Davis v. Guam (D. Guam Nov. 21, 2011), available at see generally Motion to Dismiss at 15, Davis v. Guam, No (D. Guam Dec. 2, 2011), available at 29 Complaint, supra note 28, at Mindy Aguon, Judge Stays Discovery in Davis Plebiscite Suit, Sept. 23, 2012, KUAM NEWS, 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, The Insular Cases held that only fundamental rights apply in unincorporated U.S. territories., N. Mar. I. v. Atalig, 723 F.2d 682, (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, (1903)).

8 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 [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 Carolinians are also considered to be indigenous to the CNMI. Together, the Chamorros and Carolinians are indigenous to the Marianas.

9 160 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 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 Japan 42 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 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 FARRELL, supra note 34, at 599; see Act of Mar. 24, 1976, Pub. L. No , 90 Stat. 263 (codified in 48 U.S.C (2012)). The entire agreement was fully effective after the Trusteeship ended in See Proclamation No. 5564, 51 Fed. Reg. 40, 399 (Nov. 7, 1986), reprinted in 48 U.S.C (2012). 39 SANCHEZ, supra note 18, at 302, Spain controlled the CNMI from JAMES B. JOHNSON, LAND OWNERSHIP IN THE NORTHERN MARIANA ISLANDS 2 (1969). 41 Germany ruled the CNMI from Id. at Japan controlled the CNMI from Id. at 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 (1995)) [hereinafter Villazor I]. 44 MCPHETRES, supra note 34, at ARNOLD H. LEIBOWITZ, DEFINING STATUS: A COMPREHENSIVE

10 2012 Torres 161 began in 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 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 Commission 52 and the U.S. government drafted the proposed Covenant in 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 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, Id. at U.S. DEP T OF THE INTERIOR OFFICE OF INSULAR AFFAIRS, NORTHERN MARIANA ISLANDS, available at (last updated Apr. 19, 2012). 52 The Marianas Political Status Commission consisted of Chamorros and Carolinians. See FARRELL, supra note 34, at Id. at

11 162 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 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 The CNMI subsequently adopted its first constitution in 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 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 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 Id. at Wabol v. Villacrusis, 958 F.2d 1450, 1459 (9th Cir. 1992). 57 COMMONWEALTH LAW REVISION COMMISSION, COMMONWEALTH CONSTITUTION (2012), available at 58 LEARY, supra note 46, at Id. 60 CNMI Covenant, supra note 7, art. VIII, 805, 90 Stat. at CNMI CONST. art. XVIII, 5(c). 62 CNMI Covenant, supra note 7, art. VIII, 805, 90 Stat. at Id.

12 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 [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 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 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.

13 164 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 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, N. Mar. I. Pub. L , 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, Section 1 of Public Law interprets persons of NMD as people of the Northern Mariana Islands, who are of Northern Marianas Chamorro or Carolinian descent N. Mar. I. Pub. L , 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.

14 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 The United States regained control of Guam in Unlike the CNMI, Guam did not vote on its political relationship with the United States 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, 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 Amended Complaint for Declaratory Judgment & Injunctive Relief, supra note 25, at SANCHEZ, supra note 18, at 75, 232. The Spanish administration controlled Guam from 1672 to Id. at Id. at 81. The United States formally controlled Guam from 1899 to Id. at 81, Id. at 171. The Japanese ruled Guam from 1941 to Id. at Id. at 75, 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 (2004).

15 166 Asian-Pacific Law & Policy Journal Vol. 14:1 During the United States initial possession of Guam in 1899 to 1941, the people of Guam 82 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, (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 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 noncitizen nationals who are not U.S. citizens, including those born in American Sāmoa. Immigration and Nationality Act of 1952, 8 U.S.C (need to look for official year); U.S. DEP T OF THE INTERIOR OFFICE OF INSULAR AFFAIRS, AMERICAN SAMOA, available at (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, 86 Id. at 127 (citing PENELOPE BORDALLO HOFSCHNEIDER, A CAMPAIGN FOR POLITICAL RIGHTS ON THE ISLAND OF GUAM, (Scott Russell ed., 2001)). Guam s native inhabitants appealed for U.S. citizenship in Id. at 127 (citing TIDES OF HISTORY: THE PACIFIC ISLANDS IN THE TWENTIETH CENTURY, supra note 84). 87 SANCHEZ, supra note 18, 302, Id. 89 Van Dyke, supra note 14, at

16 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 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 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 thirtyseven 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, (9th Cir. 1954)). 91 SANCHEZ, supra note 18, at Id. at Id. at Id. at Id. at Id. 97 Id.

17 168 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 SANCHEZ, supra note 18, at THE POLITICAL STATUS EDUCATION COORDINATING COMMISSION, supra note 98, at SANCHEZ, supra note 18, at Id. 104 Id. 105 Id. 106 THE POLITICAL STATUS EDUCATION COORDINATING COMMISSION, supra note 98, at Id.

18 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 selfdetermination. 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 fiftysix 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 selfgovernment, 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 , available at (last updated Mar. 12,, 2008). 113 Guam Pub. L (1996). 114 Guam Pub. L (internal quotations omitted).

19 170 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 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 original). 115 Guam Pub. L (1997). 116 Guam Pub. L (2000). 117 S.B , 31st Leg., 1st Sess. (Guam 2011). 118 Guam Pub. L (2011) GUAM CODE ANN (a)(1)-(2)(i) (1997) (emphasis in GUAM CODE ANN (2000). 121 See supra note 82 for more information on native inhabitants and infra Part II.B.