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FEATURE: Do America’s territories want equality or autonomy?

Flags in front of the American Samoa Executive Office Building
Territorial rights dilemma triggers "Guam syndrome"

Majority in Puerto Rico want equality through statehood, so far American Samoa’s priority is autonomy ~

Guam, Northern Marianas and U.S. Virgins Islands seem dazed and confused somewhere in between ~

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 (NMI) 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 issued a memorandum of law declaring the “commonwealth” model could never give any territory a vested right to any political status because one Congress can not make a territorial status law permanent.  

For Guam, that was strike one.

Then 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.  

That means Guam’s right as a non-self-governing U.S. dependency (i.e. by U.S. recognized U.N.standards not yet decolonized possession), Guam’s self-determination process for choosing a future status can’t be imposed on the U.S. citizen population by what remains of the indigenous people after 400 years of Spanish and American rule.

Let’s call that strike two for Guam.

At the same time, 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.  

Territories may be equally American in patriotism and character, but don’t have the same political rights and powers as states.  Indeed, the U.S. Constitution itself allows full equal representation in Congress and the Electoral College only for citizens of a state.  That means even if Congress grants state-like treatment to a territory in virtually every way possible under federal territorial laws, it is a legal and political reality that any status other than statehood will remain 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.

Echo effect of Guam syndrome in Northern Marianas

The Northern Mariana Islands was part of the same post-WWII United Nations trusteeship over Micronesia.  Three island nations — Palau, Micronesia, Marshall Islands — 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 a compact of 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 secure features of vested sovereignty beyond limited and revocable “autonomy” under its “commonwealth covenant” were rejected by Washington.

The later attempt by Guam to secure special rights and privileges of sovereignty under “autonomous commonwealth” only resulted in a more heavy handed federal rejection of autonomy doctrines for Puerto Rico and NMI.

The NMI too now suffers from the tell-tale symptoms of Guam syndrome.  That condition of arrested political development now afflicts all four territories making legally and politically unreconciled demands for both equal rights of U.S. citizenship and vested rights of separate sovereignty under a more autonomous status.

U.S. Virgin Islands succumbs to 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 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.

So the good news is USVI has hit five foul balls, and only the first two count as strikes.  

The inability of the USVI to accept a form of local constitutional self-government recognized by the U.S. demonstrates the impact of disappointment and frustration in the unincorporated territories about the limits of “autonomy” that is the legacy of “commonwealth” in Puerto Rico and NMI.  

Clearly, after five failed efforts to define a status with a sustainable balance of autonomy and rights the USVI is in a slump due to a bad case of Guam syndrome.

American Samoa resists homeland dispossession

America Samoa is the only territory that so far has not petitioned for a new or reformed political status, or proposed replacement of the current territorial constitution established under federal territorial law.  While all five current territories organized and locally governed under federal territorial statutes are classified by federal court edict as “unincorporated,” only American Samoa seeks to preserve more limited integration into the U.S. system of federalism until change is chosen through local democratic self-determination.  

Originally, the people of all unincorporated territories were classified by Congress and the U.S. Supreme Court "U.S. nationals” but not U.S. citizens.  The people of four unincorporated territories petitioned for classification as “U.S. citizens,” which Congress granted by federal statute because the national and state citizenship clause of the 14th Amendment does not apply in unincorporated territories.

American Samoa’s leaders correctly determined there was no material difference between limited rights and status of “nationals” and “citizens” for persons residing in the unincorporated territories. Rather, the only distinction is that “citizens” from territories 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.

Accordingly, the small population of 55,000 residents who call American Samoa home did not mimic the failed Puerto Rico “commonwealth” model of territorial government and succumb to Guam syndrome by seeking both “autonomy” and state-like rights.  As a result, the fiercely patriotic “nationals” in American Samoa have attained greater actual autonomy than “citizens” in territories suffering from the Guam syndrome.

That de facto autonomy 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 has been no reason to federalize local government or even establish a federal court, because matters not determined through less formalized local and federal government mechanisms can be referred for Congressional or even federal court review as needed.

Consequently, the federal footprint in American Samoa is very small compared to the other four territories.  Unlike the other four territories where Americans from the mainland and foreign business interests too often have dispossessed the local population of land and control the local economy, American Samoa retains strong social cohesion and political as well as economic self-determination.

American Samoa exposed to Guam syndrome

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 Guam's equality/autonomy dichotomy to American Samoa. That includes multiple failed federal lawsuits and one rogue trial court ruling that if upheld would seek to impose U.S. citizenship and state-like treatment in American Samoa without democratic self-determination.  

In the case of Fitisemanu v. U.S. the Guam based special interest lobbying organization “Equally American” practiced a form of inter-territorial hegemony by seeking to impose on American Samoans the legal and political status model Guam tried but failed to achieve for itself.

The government of American Samoa and its single Member of 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 lead to federal takeover of some functions of the existing legal, political and social order now managed autonomously by local authorities in American Samoa.  This intensification of federal power under the court’s ruling would constitute federalization superimposed by the court over the opposition of the democratically elected territorial representatives.  

“Equally American” special interest lobbyists representing the failed “autonomy with equality” faction in Guam have imported Guam syndrome to the other four unincorporated 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 or other unincorporated territories.    

Finally, the court did not responsibly determine if its order permanently incorporates all five currently unincorporated territories into the federal union.  Instead, that ruling purports to make constitutional citizenship permanent in one unincorporated territory, but does not guarantee full equality in the future that comes only with statehood.  

At least the judge had the wisdom to issue a stay on enforcement of 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 the futility of seeking state-like treatment but not statehood, while also seeking special rights through “autonomy.”  That was a hoax inflicted by the Puerto Rico autonomists in collusion with U.S. and corporate influencers.

The autonomy hoax simply allowed the U.S. practice perpetual denial of self-determination and full self-government, while state based corporations exploited the federally subsidized territorial regime.   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 without full equality is a contradiction leading to an ideological, legal and political dead end.

As recently as the 2016 case of Puerto Rico v. Sanchez Valle, the U.S. Supreme Court has upheld federal territorial law and jurisprudence holding that the “commonwealth” regime for administration of local civil affairs in Puerto Rico and NMI does not create a vested right to a zone of local sovereignty beyond the reach of federal power and supremacy of federal law.    

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.