guam’s future political status: an argument for free...

Guam’s Future Political Status: An Argument for Free Association with U.S. Citizenship I. INTRODUCTION II. GUAM’S HISTORY AS A U.S. COLONY AND ITS QUEST FOR U.S. CITIZENSHIP

A. Guam’s Early Days as a U.S. Possession B. Guam’s Pursuit of a More Meaningful Status

III. THE RIGHTS AND PROTECTIONS OF U.S. CITIZENSHIP A. U.S. Citizenship Generally B. U.S. Citizens of Guam

IV. THE DOCTRINE OF INCORPORATION AND THE APPLICATION OF THE U.S. CONSTITUTION TO GUAM

V. DUAL CITIZENSHIP IN U.S. LAW VI. THE POLITICAL STATUS OF FREE ASSOCIATION

A. Free Association Generally B. U.S. Examples of Free Association: The Former Trust Territory C. The Case of the U.S. Virgin Islands D. Non-U.S. Examples of Free Association-Type Arrangements

1. Cook Islands-New Zealand 2. Channel Islands-United Kingdom 3. Faroe Islands & Greenland-Denmark 4. Dutch Affiliated Islands in the Caribbean

E. Possible Model of Guam-U.S. Free Association VII. CONCLUSION

I. INTRODUCTION

For more than three hundred years, the island of Guam has been subjected to colonial rule

and denied full self-governance.1 Spain claimed Guam in 1565, and established Spanish rule in 1668.2 After the Spanish-American War, Guam’s centuries-long colonizer formally ceded the island to the United States with the ratification of the Treaty of Paris in 1899.3 With the exception of a three-year period during World War II, when Japanese forces occupied Guam (1941 to 1944), the island has since remained under the control of the United States.4 At present,

1 Position Paper of the Task Force on Free Association, The Freely Associated State of Guam in Free

Association with The United States of America 1 (Mar. 31, 2000) [hereinafter Position Paper] (unpublished position paper, on file with the Guam Commission on Decolonization and The Asian-Pacific Law and Policy Journal).

2 STANLEY K. LAUGHLIN, JR., THE LAW OF UNITED STATES TERRITORIES AND AFFILIATED JURISDICTIONS

399 (Lawyers Cooperative Publishing 1995) [hereinafter LAW OF UNITED STATES TERRITORIES]. Guam is the southernmost island in the Marianas chain of islands, in western Micronesia. Id.

3 Position Paper, supra note 1, at 1; LAW OF UNITED STATES TERRITORIES, supra note 2, at 36-37, 400.

4 Position Paper, supra note 1, at 1; Jon M. Van Dyke et al., Self-Determination for Nonself-governing

Peoples and for Indigenous Peoples: The Cases of Guam and Hawai'i, 18 U. HAW. L. REV. 623, 626 (1996) [hereinafter Van Dyke, Self-Determination].

Guam’s Future Political Status 123

this island of U.S. citizens is “one of the oldest colonial dependencies in the world.”5 Currently, Guam is governed by an act of Congress, the Guam Organic Act of 1950.6 The powers given to Guam under the Organic Act, however, are “merely delegated powers that can be changed or taken away at the will of Congress.”7 Guam’s current political status is that of an organized, unincorporated territory of the United States—a territory that has a civil government established by Congress but is not considered to be in transition to statehood.8 The United Sates granted its citizenship to the “native inhabitants”9 of Guam with the signing of the Guam Organic Act; however, those who received their citizenship through this Act do not receive the full protections of the U.S. Constitution.10

Prior to Guam’s gubernatorial election of 1970, the President of the United States appointed Guam’s Governors, without any direct input from the people of the island.11 In 1972, Guam was allowed to elect one non-voting delegate to the House of Representatives, whose function has been little more than to serve as an advocate for Guam with no real power to affect legislation.12 Presently, the Department of Interior has oversight over Guam’s affairs, and the actions of the Governor of Guam are “subject to veto by the . . . Secretary of the Interior, just as

5 Van Dyke, Self-Determination, supra note 4, at 625.

6 Guam Organic Act, Pub. L. No. 630, 64 Stat. 384 (codified as amended at 48 U.S.C. 1421-1425 (1950))

[hereinafter Guam Organic Act]; PENELOPE BORDALLO HOFSCHNEIDER, A CAMPAIGN FOR POLITICAL RIGHTS ON THE ISLAND OF GUAM, 1899-1950 155 (Scott Russell ed., 2001) [hereinafter CAMPAIGN FOR POLITICAL RIGHTS]. Article IV of the Constitution (the Territories Clause) empowers Congress to legislate for territories such as Guam. U.S. CONST. art. IV, § 3, cl. 2; see also Charles H. Troutman, Partial Disposal Under the Territorial Clause: A More Permanent Status for Territories 4 (July 12, 1996) [hereinafter Troutman, Partial Disposal] (on file with the Guam Commission on Decolonization, the Office of the Compiler of Laws in Guam, and The Asian-Pacific Law and Policy Journal).

7 Troutman, Partial Disposal, supra note 6, at 4.

8 CAMPAIGN FOR POLITICAL RIGHTS, supra note 6, at 155-56; 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, 449-50 (1992) [hereinafter Van Dyke, Evolving Legal Relationships].

9 Guam Organic Act, supra note 6. U.S. citizenship was granted to those people born in Guam and there

residing on April 11, 1899, and their descendants. Id. While this group was predominantly Chamorro, to use the term Chamorro would be technically imprecise when discussing those whose citizenship stands to be affected should a status change occur. Additionally, the native inhabitants of the islands of Rota, Tinian, and Saipan are also called Chamorro. Interview with Leland Bettis, Former Executive Director, Guam Commission on Decolonization (Jan. 8, 2002). See discussion infra Part III. B; see also infra nn.20 & 25.

10

Van Dyke, Self-Determination, supra note 4, at 626. See discussion infra Part III.B. 11

Id. at 626. 12

Van Dyke, Evolving Legal Relationships, supra note 8, at 469. Guam’s delegate is “allowed to sit on certain committees, can chair these committees or their subcommittees, can introduce legislation, and can vote in the committees or their subcommittees. [The delegate] cannot, however vote when the House meets in plenary session to consider final passage of legislation and budgets.” Id. (emphasis in original).

124 ASIAN-PACIFIC LAW & POLICY JOURNAL; Vol. 4, Issue 1 (Winter 2003)

local legislation may be overridden by Congress.”13 Hence, despite being ruled by a representative democracy, the people of Guam have no meaningful representation and participation in the process by which the U.S. government continually makes laws and decisions that govern their lives.14

This small island in the western Pacific has been, and continues to be, of great strategic military importance to the United States,15 which may explain why the United States has been reluctant to give up complete control of Guam. During World War II, Guam served as a logistical center for U.S. military operations against the Japanese homeland, thereby contributing significantly to the end of the war in the Pacific.16 The U.S. military also used the island as the major staging area for heavy bombing during the Korean and Vietnam Wars, as well as for numerous subsequent military operations.17

After decades of actively seeking a voice in how their island is governed,18 the people of Guam are still pursuing their internationally recognized right to self-determination.19 Currently, the people of Guam continue their efforts to alter their colonial status; a plebiscite for self-determination is expected to take place in Guam in the very near future.20

13

TIDES OF HISTORY: THE PACIFIC ISLANDS IN THE TWENTIETH CENTURY 387 (K.R. Howe et al. eds., 1994) [hereinafter TIDES OF HISTORY].

14

See Van Dyke, Evolving Legal Relationships, supra note 8, at 459. 15

Carl T.C. Gutierrez, An American Colony, WASH. POST, Oct. 9, 1996, at A19 [hereinafter Gutierrez, An American Colony]. Carl T.C. Gutierrez was Governor of Guam from 1995-2003, during which time he additionally served as Chairperson of the Commission on Decolonization. He was also the President of the Guam Constitutional Convention in 1977-79. National Governors Association, http://www.nga.org/governors (last visited Feb. 10, 2003).

16

Id. 17

Id. “When B-52s left Guam for the 33-hour round trip to unleash cruise missiles on targets in southern Iraq on Sept. 6, they were demonstrating more than just the ability of the United States to project global force with little or no allied assistance. The Air Force’s platform, Guam, was yet again legitimized as a vital national security asset, while better-placed allies created ‘no-fly-zones’ of their own for American military aircraft.” Id.

18

For further reading on Guam’s now-defunct pursuit of Commonwealth status, see, for example, Paul Lansing & Peter Hipolito, Guam’s Quest for Commonwealth Status, 5 UCLA ASIAN PAC. AM. L.J. 1 [hereinafter Lansing & Hipolito, Guam’s Quest]. See also Van Dyke, Self-Determination, supra note 4, at 626-29.

19

Declaration on the Granting of Independence to Colonial Countries and Peoples, G.A. Res. 1514, U.N. GAOR, 15th Sess., Supp. No. 16, at 66, U.N. Doc. A/4684 (1960) [hereinafter Declaration on the Granting of Independence to Colonial Countries and Peoples].

20

Interview with Leland Bettis, Former Executive Director, Guam Commission on Decolonization (Jan. 8, 2002). A plebiscite was anticipated for November 7, 2002, with the “native inhabitants” taking part in the vote. However, the compilation of the Chamorro Registry (certifying those who meet the requirements of “native inhabitants”) is not complete; additionally, some residents of Guam have raised questions as to the legality of having a “native inhabitants” vote (as opposed to a vote open to all residents of Guam). For some of the proffered arguments as to the difficulties of having an indigenous vote, see Lansing & Hipolito, Guam’s Quest, supra note 18 at 4-5.


One of Guam’s options for self-governance is the political status of free association—a status “recognized by the United Nations as having the elements of decolonization and full measure of self-government.”21 The primary aspect of a freely associated state is that it is internally fully self-governing, while giving some degree of control over certain external matters (such as defense) to another state.22 Unlike Guam’s current relationship with the United States, free association status would be a voluntary relationship between two sovereign nations, the terms of which would be negotiated and agreed to by both parties.23 Because it is a consensual relationship, either party could withdraw from the arrangement upon proper notice.24

One of the more significant terms to be negotiated is the question of what would happen to the U.S. citizenship extended by the United States to Guam's “native inhabitants” and their descendants.25 The significance of retaining U.S. citizenship lies in the security and privileges that such citizenship provides. Without U.S. citizenship, the people of Guam have much to lose: their U.S. passports and ensuing privileges, freedom from U.S. immigration laws, as well as access to certain federal services and opportunities.26

This article explores the historical evolution of Guam’s quest for U.S. citizenship, and examines the benefits and limitations of the citizenship and the political status eventually granted. Additionally, it will touch on the prospects of dual citizenship in U.S. law, the political status option of free association, and ways in which the United States and other colonial nations have addressed these issues with their dependencies and/or freely associated states. Although the citizens of the island nations that presently have free association with the United States do not have U.S. citizenship, their situation is distinguishable from Guam’s: they never had U.S. citizenship to begin with.27 Several other states that now have a similar type of association—the Cook Islands with New Zealand, the Channel Islands with the United Kingdom, Greenland and the Faroe Islands with Denmark, and Netherlands Antilles and Aruba with the Netherlands—have been allowed to hold the citizenship of the states with which they associate.28 Therefore,

21

Position Paper, supra note 1, at 3. 22

Id. at 4. 23

Id. at 3-4. 24

LAW OF UNITED STATES TERRITORIES, supra note 2, at 472. 25

The Guam Organic Act, Sec. 4, grants citizenship to “[a]ll persons born in the island of Guam who resided in Guam on April 11, 1899, including those temporarily absent” and their descendants. See Position Paper, supra note 1, at 14-15.

26

Interview with Leland Bettis, Former Executive Director, Guam Commission on Decolonization (January 8, 2002); see also infra n.85 and accompanying text.

27

See discussion infra Part VI.B. 28

See discussion infra Part VI.D.


should the U.S. citizens of Guam opt to freely associate with the United States, the continuation of their individual stature as U.S. citizens is legally attainable.29

II. GUAM’S HISTORY AS A U.S. COLONY AND ITS QUEST FOR U.S. CITIZENSHIP

A. Guam’s Early Days as a U.S. Possession

With the signing of the Treaty of Paris on April 11, 1899, the United States officially

took “ownership” of Guam as a U.S. territory.30 The Territories Clause of Article IV of the U.S. Constitution gives Congress plenary powers over U.S. territories.31 Congress “may not only abrogate laws for [sic] the territories, but it may itself legislate directly for the local government. It may make a void act of the territorial legislature valid, and a valid act void.”32 In an exercise of its plenary powers, immediately after the United States acquisition of Guam, Congress gave the Department of Navy administrative authority over Guam, authorizing the Navy to establish a military government there.33

From the outset, the United States promised the full measure of individual rights and liberties to the island of Guam.34 Since the very beginning, however, the reality of Guam’s experience as a military possession stood in stark contrast to the American ideals of liberty and democracy.35 During the time in which the Navy administered Guam, the particulars of how

29 See Dep’t of Justice, Section-By-Section Comments on S. 244, Feb. 5, 1991, at 23 [hereinafter Dep’t of

Justice] (on file with The Asian-Pacific Law and Policy Journal). In the case of Puerto Rico, Congress has considered the matter of U.S. citizenship, particularly as to how citizenship would be affected if the people of Puerto Rico chose the political status of independence. In its comments on S. 244, The Puerto Rico Status Referendum Act, the Justice Department expressed concern that the bill created the impression that “independence would not have any effect on the continued United States citizenship of the residents or citizens of Puerto Rico.” Id. The Justice Department further stated their objection to allowing this possible dual (U.S. and Puerto Rican) citizenship: “While Congress has the power to allow such an arrangement, we strongly oppose allowing dual citizenship for the entire Puerto Rican population.” Id. That the Justice Department concedes the possibility of Congress allowing residents of an independent Puerto Rico to retain their status as U.S. citizens bodes well for an argument that the people of a free association of Guam (which would presumably have greater political and legal ties to the United States) can enjoy the same continuation of citizenship. However, the substance of the Justice Department’s comments regarding this issue suggests that Guam may meet some of the same resistance should the time come for the island to negotiate the terms of its free association arrangement with the United States. See generally Statement of Dick Thornburgh, Former Attorney General of the United States, to the Committee on Energy and Natural Resources, United States Senate (Feb. 7, 1991) (on file with The Asian-Pacific Law and Policy Journal).

30


Van Dyke, Evolving Legal Relationships, supra note 8, at 454. 32

Nat’l Bank v. County of Yankton, 101 U.S. 129, 133 (1880). 33

See LAW OF UNITED STATES TERRITORIES, supra note 2, at 400-1; see generally CAMPAIGN FOR POLITICAL RIGHTS, supra note 6, at 18.

34

See TIDES OF HISTORY, supra note 13, at 112. 35

Id.


Guam was governed were left largely to the whims of whoever happened to be sitting as Governor at the time.36 “The territory was to be administered within the absolute domain of naval authority . . . ‘until the legislation of the United States . . . otherwise provided.’”37 It was not long before the native inhabitants of Guam— described by both their American rulers and themselves as loyal, cooperative, and patriotic to the United States—began to manifest their frustration; to them, there existed a clear dissonance between the idea of military rule and the principles of liberty and participation central to a civilized government, and even more so, to an American government.38

B. Guam’s Pursuit of a More Meaningful Status

In 1901, the native inhabitants of Guam formally appealed to the United States Congress

for a better political arrangement; in a letter to the U.S. Congress, Guam’s inhabitants beseeched the American legislators to improve Guam’s system of governance.39 Another letter expressing the desire of some islanders to obtain U.S. citizenship came a year later in 1902.40 The naval Governor mentioned this desire in his report to the Department of Navy, noting that, when the time came for consideration of this matter, America need not harbor concerns about Guam’s loyalty to the United States.41 Over the next four decades, Guam would make similar pleas to obtain U.S. citizenship, or at the very least, to alter Guam’s governmental structure.42 Even the Secretary of the Department of Navy made an appeal to Congress to establish a civil government in Guam, urging that the people of the island be afforded “that sense of security which can only come from permanent laws and a form of government in harmony with that of a country to which the island belongs.”43

In 1905, the United States Senate passed a bill to grant U.S. citizenship to Guam, but the House of Representatives took no action on the bill, and it eventually died.44 Guam was held as a

36 CAMPAIGN FOR POLITICAL RIGHTS, supra note 6, at 19.

37

Id. at 18 (quoting Declaration by Secretary of the Navy & President William McKinley). 38

See generally CAMPAIGN FOR POLITICAL RIGHTS, supra note 6, at 35. 39

TIDES OF HISTORY, supra note 13, at 112; CAMPAIGN FOR POLITICAL RIGHTS, supra note 6, at 47-48. 40


CAMPAIGN FOR POLITICAL RIGHTS, supra note 6, at 53. 42

See generally id. at 47-103 (chronicling the numerous petitions, both formal and informal, that the native leaders of Guam made in seeking a more defined political status and a more stable statement and enforcement of their rights as a people of the island during the time preceding the signing of the Guam Organic Act).

43

Id. at 53 (quoting comments from the Secretary of the Navy to the United States Congress in 1904 that urged Congress to establish a suitable governmental system for the island).

44

TIDES OF HISTORY, supra note 13, at 112.


military installation and its people were merely American “nationals;”45 civil government with American citizenship was considered incompatible with the military presence.46 Furthermore, leaders in Washington were skeptical about granting citizenship and civil government, as they believed that Guam’s small size and lack of resources would render such a decision an uneconomical undertaking.47

In 1917, the United States authorized the establishment of the Guam Congress, which was to consist of respected members of the island community appointed by the Governor.48 These members, however, had little real power—they were described merely as “guests” of the naval Governor, serving at his pleasure.49 Additionally, the Guam Congress was not vested with any legislative authority, but rather was in place solely to offer recommendations to the Governor on certain matters relating to the island’s governance.50 Even when the Congress became an elected rather than appointed body in 1931, it still lacked any true legislative powers.51

Those who served in the Guam Congress had quite different views of what role that body should play. Although the Governor intended that the Congress discuss and advise on issues particularly related to how the native inhabitants could better serve the goals of the American administration, the members used the Congress as a forum to express their desires as a people;52 they wanted to discuss not merely how to enhance agriculture, but how to define and better their political status. This was demonstrated during the meeting of the First Guam Congress.53 At this meeting, the Governor’s agenda focused mainly on economic matters, but the Congress members nonetheless addressed the uncertainty of their island’s political status and expressed their desire to end the prolonged military rule: “The Chamorro people only desire . . . that their government be adjusted to the principle established by the immortal Washington, liberator of the great nation that now rules our destinies in this Island.”54

45

LAW OF UNITED STATES TERRITORIES, supra note 2, at 403; CAMPAIGN FOR POLITICAL RIGHTS, supra note 6, at 143 (referencing a Dec. 22, 1948 speech by Guam Assemblyman Antonio C. Cruz).

46

TIDES OF HISTORY, supra note 13, at 242. 47


GOVERNOR OF GUAM, ANNUAL REPORT 35 (1917); CAMPAIGN FOR POLITICAL RIGHTS, supra note 6, at 56.

49 CAMPAIGN FOR POLITICAL RIGHTS, supra note 6, at 56.

50

GOVERNOR OF GUAM, ANNUAL REPORT 35 (1917) (“Its duties are to consider and recommend measures for the improvement of the Island and the welfare of its inhabitants.”); CAMPAIGN FOR POLITICAL RIGHTS, supra note 6, at 56; LAW OF UNITED STATES TERRITORIES, supra note 2, at 403.

51


CAMPAIGN FOR POLITICAL RIGHTS, supra note 6, at 56-57. 53

Id. at 56. 54

Id. at 58 (quoting speech delivered by Guam Congressmember Tomas Calvo Anderson during a meeting


Despite repeated fervent appeals, the United States did not actively consider the possibility of granting U.S. citizenship to the native inhabitants of Guam until after World War II, a war for which many of Guam’s people fought and died on behalf of the United States, and during which thousands of Guam’s civilians were interned and killed.55 “In the logic of postwar thinking, the Chamorro people had willingly suffered and died for their proud affiliation with the United States of America. Now that they had unquestionably proven their love for and loyalty to the Mother Country, the indigenous inhabitants deserved the rights and privileges of American citizenship.”56 In 1946, the Department of Defense appointed the Hopkins Committee57 to prepare a study on the issue of granting U.S. citizenship to Guam:

The Hopkins Committee Report made a strong recommendation for citizenship, stating that it was long overdue especially in light of the heroic service rendered by the people of Guam to the United States during the Second World War. The Committee concluded that the United States not only owed Guamanians citizenship, but also an apology for having delayed it for so long.58 In 1947, the Chief of Naval Operations granted limited legislative powers to the Guam

Congress, comprised of the House of Council and the House of Assembly,59 perhaps in an effort to quell their dissatisfaction until the U.S. Congress took action. A year later, the Ninth Guam Congress passed Concurrent Resolution No. 1, which petitioned the U.S. Congress to determine the political status and rights of the people of Guam.60 This resolution passed the House of Council unanimously.61 In a poignant appeal in favor of the resolution, one member of the House of Assembly stated:

of the First Guam Congress in 1917).

55

LAW OF UNITED STATES TERRITORIES, supra note 2, at 401-03. Japanese Imperial Forces occupied Guam from 1941 to 1944, and the people of Guam were interned and brutalized. Id. at 401-02. Many Guamanians carried out movements of resistance against the Japanese and for the Americans, and lost their lives as a result. Id. at 402. Civilians in Guam suffered death penalties for even minute acts of disobedience. Id. After nearly three years of occupation, American forces liberated Guam in July of 1944. Id.

56


LAW OF UNITED STATES TERRITORIES, supra note 2, at 403-04. The Hopkins Committee was a committee headed by Dr. Ernest M Hopkins, whose primary function it was to investigate allegations of abuse of naval rule in Guam and American Samoa. The Committee spent two weeks in Guam, during which time it conducted interviews and held public hearings on the issue of granting U.S. citizenship to the native people of Guam. CAMPAIGN FOR POLITICAL RIGHTS, supra note 6, at 120.

58

LAW OF UNITED STATES TERRITORIES, supra note 6, at 403-04. 59

CAMPAIGN FOR POLITICAL RIGHTS, supra note 6, at 118-19, 140. 60

Id. at 140. 61

Id.


We would like to be secure in our homes and free from fear and condemnation of our property. We would like the privilege and freedom of planning our own home . . . of our own choice and free from dictatorial rule and one man’s opinion. . . . [W]e are only nationals of the United States, with no permanent existing rights, privileges and immunities. We are the orphans of our beloved United States. . . . We are eagerly awaiting the time when we the people of Guam will have inalienable rights as guaranteed by the Constitution of our beloved United States.62 The House of Assembly passed this resolution by a majority vote.63 Soon thereafter, both

houses of the Guam Congress passed the resolution and a draft organic act, which detailed provisions for U.S. citizenship, as well as a bill of rights, and civil government.64 While the people of Guam fought hard for citizenship, they regarded it merely as a means to an end, and not an end in itself. Discussions with a visiting U.S. Congressional Committee surrounding the draft organic act made this apparent; these discussions focused largely on the question of land—specifically, the islanders’ desire to obtain property rights such that their land could no longer be summarily condemned and seized by the military.65 They viewed U.S. citizenship as a way of securing such rights.66

Finally, after Guam had languished for half a century under a government essentially without established law, President Truman signed H.R. 7273—the Guam Organic Act—into law on August 1, 1950.67 The Organic Act extended citizenship and a Constitution-based bill of rights to the native inhabitants of Guam.68 Furthermore, the Act declared Guam to be an unincorporated territory of the United States.69

62

Id. at 143 (quoting speech by Guam House of Assembly member Antonio C. Cruz during discussions on Concurrent Resolution No.1 in 1948).

63

Guam Congress, House of Assembly, Congressional Record p.16 (Dec. 22, 1948); CAMPAIGN FOR POLITICAL RIGHTS, supra note 6, at 143.

64

Guam Congress, Congressional Record, Appendix pp. 3, 36 (Mar. 5, 1949); CAMPAIGN FOR POLITICAL RIGHTS, supra note 6, at 144.

65


See id. at 154-55. 67

Id. at 155. 68

Providing a Civil Government for Guam, S. Rep. No. 2109 to accompany H.R. 7273, 81st Cong. 2nd Sess. 13 (July 20, 1950); CAMPAIGN FOR POLITICAL RIGHTS, supra note 6, at 155.

69

CAMPAIGN FOR POLITICAL RIGHTS, supra note 6, at 155.


III. THE RIGHTS AND PROTECTIONS OF U.S. CITIZENSHIP

A. U.S. Citizenship Generally

For the people of Guam granted U.S. citizenship by the Guam Organic Act, their

citizenship is, for the most part, similar to that of other U.S. citizens.70 Generally, U.S. citizenship carries certain rights and obligations:

Citizenship has important legal consequences, both in domestic United States law and in international law. Apart from its capacity to be transmitted, citizenship can affect one’s political rights, one’s tax and military obligations, and one’s eligibility for certain publicly funded programs, for certain government jobs, and for certain occupations. Congress, the state legislatures, and the federal courts have all helped to shape the boundaries. Most important here, United States citizens are not subject to immigration restrictions.71

The immigration laws of the United States divide the global population into two

categories: U.S. nationals and aliens.72 With a few exceptions (mainly having to do with natives of American Samoa and Swains Island), most U.S. nationals are also U.S. citizens.73 As a result of this distinction, the United States can extend its protection, rights, privileges, and duties to the class of people it calls its own, while excluding all others from these same advantages and obligations.74

U.S. law acknowledges several ways that an individual can obtain citizenship. A person can acquire citizenship at birth jus soli (born on United States soil) or jus sanguinis (born to a U.S. citizen parent).75 Citizenship can also be acquired after birth through the process of naturalization, the procedures for which are detailed in the U.S. Immigration and Nationality Act (INA).76 The current statute (INA § 101(a)(38)) clarifies that Guam, Puerto Rico, and the U.S.

70

For the differences in the rights and protections between citizenship generally and citizenship granted through the Guam Organic Act, see discussion infra Parts IV-V.

71

STEPHEN H. LEGOMSKY, IMMIGRATION AND REFUGEE LAW AND POLICY 3 (Robert C. Clark et al. eds., 2d ed. 1997) (1992) [hereinafter IMMIGRATION LAW & POLICY].

72

Id. at 2. 73

Id. “Since the number of non-citizen nationals is so small, and since their rights so closely resemble those of citizens anyway, the terms ‘national’ and ‘citizen’ are often used interchangeably. That practice is technically incorrect, but the distinction is rarely important.” Id.

74

Id. at 3. 75

Id. at 1030. 76

8 C.F.R. §§ 334.11, 335; IMMIGRATION LAW & POLICY, supra note 71, at 1039.


Virgin Islands count as “United States soil” for purposes of conferring citizenship jus soli.77 Although the original Constitution was silent as to who is (and who can become) a “citizen” of the United States, the Fourteenth Amendment addresses this uncertainty in its first sentence:78 “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States . . . .”79 Statutory law has subsequently codified this constitutional decree.80

B. U.S. Citizens of Guam

The Guam Organic Act of 1950 granted U.S. citizenship to “[a]ll persons born in the

island of Guam who resided in Guam on April 11, 1899, including those temporarily absent” and their descendants.81 Primarily, this applied to the Chamorros, the native inhabitants of Guam.82 The Chamorros of Guam, therefore, did not acquire citizenship by birth or naturalization (the ways addressed in the Fourteenth Amendment); rather, they acquired it by federal statute. This has created disparate treatment of the Chamorros in the application of the Constitution. For instance, because Guam is an unincorporated territory and receives only those constitutional rights and protections deemed “fundamental,”83 the provisions of the Fourteenth Amendment do apply to Guam,84 but with the notable exception of the first sentence. Thus, the U.S. citizens in Guam are not “Fourteenth-Amendment-first-sentence citizens.”85

77

IMMIGRATION LAW & POLICY, supra note 71, at 1032. 78

Id. at 1030-31. 79

U.S. CONST. amend. XIV, § 1. 80

IMMIGRATION LAW & POLICY, supra note 71, at 1031 (referring to Immigration and Nationality Act §301(a)).

81

Guam Organic Act, supra note 9 at § 1421. Although this particular provision was later repealed, similar language appears in I.N.A. § 307 (codified as U.S.C. § 1407).

82

Leland R. Bettis, The Roots of Guam’s Experience as an American Colony: Approaches to Understanding the Rationale of a New Political Status 16 n.36 (on file with the Guam Commission on Decolonization).

83

See Van Dyke, Evolving Legal Relationships, supra note 8, at 449; see discussion infra Part IV. 84

LAW OF UNITED STATES TERRITORIES, supra note 2, at 416; see discussion infra Part IV. 85

Rogers v. Bellei, 401 U.S. 815, 827 (1971). Plaintiff Bellei, born in Italy to a U.S. citizen mother, lost his U.S. citizenship conferred at birth for failure to comply with INA residential requirement. Id. at 826. The court held that the citizenship clause of the Fourteenth Amendment does not apply to citizenship acquired by birth abroad to a U.S. citizen parent, and that such citizenship is therefore subject to congressional actions. Id. at 827. The Court stated: “The central fact, in our weighing of the plaintiff’s claim . . . is that he was born abroad. He was not born in the United States. He was not naturalized in the United States.” Id. Because the native inhabitants of Guam received their citizenship neither by birth in the United States nor by naturalization, but rather by federal statute, their citizenship is similarly subject to congressional action. Interview with Leland Bettis, Former Executive


The consequence of not having this ultimate protection has significant implications when it comes to the stability and certainty of retaining one’s citizenship. Generally, the United States cannot divest a person of citizenship absent a showing that the person committed “an expatriating act as defined by statute done voluntarily and with intent to relinquish citizenship.”86 This limitation applies to those who acquired their citizenship through one of the aforementioned means (those who have Fourteenth Amendment citizenship), but not to those who—like the natives of Guam—received their citizenship by statute. The Supreme Court has held that U.S. citizens have a constitutional right to retain their citizenship unless they voluntarily relinquish it,87 but later qualified this assertion, saying that this right only applies to those who received their citizenship by birth or naturalization in the United States.88 In sum, the native inhabitants of Guam, because they acquired their citizenship by statute, do not have constitutionally-protected citizenship—they do not have a constitutional right to retain their U.S. citizenship.89

IV. THE DOCTRINE OF INCORPORATION AND THE APPLICATION OF THE U.S. CONSTITUTION TO

GUAM Which constitutional rights should be extended to the people of territories such as Guam

has been the subject of significant debate and litigation, resulting in the birth of the doctrine of incorporation.90 The “incorporation doctrine” emerged from the Insular Cases of 1901, and specifically from Justice White’s concurring opinion in Downes v. Bidwell.91 The United States Supreme Court unanimously adopted the doctrine in 1922, in the case of Balzac v. Porto Rico.92 This doctrine establishes that, unless a territory is incorporated (generally thought of as being on the way to statehood), then not all provisions of the United States Constitution are applicable to

Director, Guam Commission on Decolonization (Jan. 8, 2002).

86

BARRON’S LAW DICTIONARY 157 (4th ed. 1996). 87

Afroyim v. Rusk, 387 U.S. 253, 266 (1967). See also Dep’t of Justice, supra note 29, at 25. 88

Rogers v. Bellei, 401 U.S. 815, 827 (1971). See also Dep’t of Justice, supra note 29, at 25. 89

Interview with Leland Bettis, Former Executive Director, Guam Commission on Decolonization (Jan. 8, 2002). It appears from the way in which the constitutional protection of citizenship has been interpreted that the people from foreign countries, such as the Philippines and other Asian countries, who come to Guam to be naturalized have a protected right to their citizenship; yet, ironically, the people in Guam today who derived their citizenship from the Guam Organic Act (the “inhabitants” into whose “native” land these others were able to come to be naturalized), do not have such a right. This has been one of the arguments offered in favor of having only these “native inhabitants” participate in the upcoming plebiscite on status change (i.e., they are the ones who have the most at stake). This matter has resulted in passionate debate from all angles and, as of this writing, has not been resolved. Id.

90

See Van Dyke, Evolving Legal Relationships, supra note 8, at 449. 91

182 U.S. 244 (1901); Van Dyke, Evolving Legal Relationships, supra note 8, at 449. 92

258 U.S. 298, 305 (1922); LAW OF UNITED STATES TERRITORIES, supra note 2, at 129.


the territory.93 These cases proposed that only those constitutional rights found to be “fundamental” would apply to unincorporated territories.94 The courts have deemed the Bill of Rights and Amendments Thirteen, Fourteen (except the first sentence),95 and Fifteen to be fundamental, and they are thus applicable to Guam through the Guam Organic Act.96

In 1975 the U.S. District Court for the District of Columbia established the test used to determine inapplicability of a specific constitutional provision to territories: whether the application would be “impractical or anomalous.”97 The Ninth Circuit Court of Appeals later followed this test in Wabol v. Villacrusis,98 a case arising out of the Commonwealth of the Northern Mariana Islands. Since Guam falls within the Ninth Circuit’s jurisdiction, this test is now binding on Guam.99

Various cases have considered the applicability of specific constitutional provisions to Guam. The Ninth Circuit held in Sakamoto v. Duty Free Shoppers that the Commerce Clause does not apply to Guam.100 The Ninth Circuit also held in Attorney General of Guam on Behalf of All U.S. Citizens Residing in Guam etc. v. United States101 that the Article II provision dealing with the selection of President of the United States102 is inapplicable to Guam.103 Additionally, federal courts have firmly upheld the applicability of the Article IV Territories Clause104 and Article I, Section 10, which deals with imposing duties on imports and exports by the states.105 Evident from these determinations is the reality that U.S. citizens of Guam do not stand on equal footing with most other U.S. citizens when it comes to the rights, protections, and privileges that U.S. citizenship affords.

93

Van Dyke, Evolving Legal Relationships, supra note 8, at 449. 94

Id. 95

Rogers v. Bellei, 401 U.S. 815, 827 (1971). 96


King v. Morton, 520 F.2d 1140, 1147 (D.C. Cir. 1975). 98

958 F.2d 1450, 1462 (9th Cir. 1992). 99


764 F.2d 1285, 1288 (9th Cir. 1985); LAW OF UNITED STATES TERRITORIES, supra note 2, at 416. 101

738 F.2d 1017, 1019 (9th Cir. 1984). 102

U.S. CONST. art. II, §1, cl. 2. 103


U.S. CONST. art IV, § 3, cl. 2; Duty Free Shoppers, Ltd. v. Tax Comm’r, 464 F. Supp. 730, 733-34 (D. Guam 1979); LAW OF UNITED STATES TERRITORIES, supra note 2, at 416.

105

U.S. CONST. art. I, § 10, cl. 2; LAW OF UNITED STATES TERRITORIES, supra note 2, at 416.


V. DUAL CITIZENSHIP IN U.S. LAW In addition to the possibility of solely retaining U.S. citizenship, one alternative for Guam

if it opts for free association with the U.S.106 would be to create some sort of dual citizenship arrangement, whereby Guam’s inhabitants could simultaneously hold the citizenship of the United States and the freely associated state of Guam. “Dual Citizenship” is defined as citizenship “where two different sovereigns within their respective territorial confines may lawfully claim citizenship of the same person and he of them.”107 U.S. immigration law, however, has traditionally disfavored dual citizenship.108 A leading U.S. treatise on immigration law, for example, states that dual citizenship “impairs the singleness of commitment which is the hallmark of citizenship and allegiance.”109 Nonetheless, dual citizenship/nationality does exist in U.S. law.110

The U.S. Supreme Court in Kawakita v. United States111 held that, in the dual citizenship regime, a person does not renounce the citizenship rights of one state merely by asserting the citizenship rights of the other state. Furthermore, a dual citizen “may take an oath of allegiance . . . without losing his United States citizenship in the process, provided that such oath does not place the person taking it in complete subjection to the state to which it is taken; the oath may not renounce loyalty to the United States by its terms.”112 Therefore, if Guam were freely associated with the United States, its citizens would not, by definition of the status, be completely subjected to the state of Guam.113 Indeed, any oath of Guam citizenship would not conceivably include a renunciation of loyalty to the United States—the terms of its free association arrangement would reaffirm the close ties that the two states would share. Guam’s loyalty to the United States is not a question. Even one hundred years ago, when the people of Guam had no citizenship or political rights to truly bind them with the United States, their loyalty was clear. The naval Governor in 1901 stated that: “When the time shall come to give consideration to this matter [citizenship], there will be no qualifying condition arising from disloyalty . . . .”114

106

See discussion infra Part VI.D.1-2 (discussing the option of free association). 107

BARRON’S LAW DICTIONARY 157 (4th ed. 1996). 108

IMMIGRATION LAW & POLICY, supra note 71, at 1054-55. 109

7-9 IMMIGR. L. & PROC. (MB) § 91.01[3][d]; IMMIGRATION LAW & POLICY, supra note 71, at 1054-55. 110

See generally, IMMIGRATION LAW & POLICY, supra note 71, at 1053-55. “Dual citizenship has resulted more frequently in recent years, particularly in the immigrant-receiving countries of North America. . . .” Id. at 1054.

111

343 U.S. 717, 724 (1952). 112

David S. Gordon, Section V Civil Rights: Dual Nationality and the United States Citizen, 102 MIL. L. REV. 181, 188-89 (1983).

113

See discussion infra Part VI.B. 114

CAMPAIGN FOR POLITICAL RIGHTS, supra note 6, at 53.


More than a century later, the question is not whether Guam’s people should be granted U.S. citizenship but whether they should be allowed to retain this status. Although today’s question may be different, the heart of the argument is still the same. Guam is an island of Americans. The people of Guam as a whole have been, and remain to this day, loyal to the United States.115 Concerns of disloyalty, then, should not be an obstacle to allowing the people of a freely associated state of Guam to retain their U.S. citizenship.

The situation of the Native Americans accommodates the notion of a dual citizenship in a way that suggests a similar arrangement for Guam is attainable. Native American tribes are considered semi-sovereign.116 They are subject to the rule of their individual tribal governments and also, to a limited degree, to the United States government—in many regards these tribes elude the full reach of federal and state laws.117 Native Americans can hold citizenship of their semi-sovereign tribes as well as U.S. citizenship.118 Although the circumstances of the Native Americans and those of the native inhabitants of Guam are not perfectly analogous, they have some parallels that invite comparison. Guam is a colony, “belonging” to the United States by command of a treaty; scarcely anything about the relationship between Guam and the United States has been mutual or consensual. Now Guam faces the possibility of becoming a sovereign state while maintaining integral, consensual links with, and delegating certain powers and authority to, its former colonizer.

Should one of the links Guam hopes to maintain be its U.S. citizenship, the situation of the Native American tribes illustrates that the United States can grant it. The fact that the United States recognizes and allows a dual citizenship regime to exist for members of semi-sovereign Native American tribes119 lends some weight to the argument that other peoples having a once-colonial relationship with the United States may also have the option of holding dual citizen status.

115

See, e.g., Gutierrez, An American Colony, supra note 15; LAW OF UNITED STATES TERRITORIES, supra note 2, at 402.

116

David C. Williams, The Borders of the Equal Protection Clause: Indians as Peoples, 38 UCLA L. REV. 759, 762 (1991).

117

Id. 118

Carole Goldberg, A Law of Their Own: Native Challenges to American Law, 25 LAW. & SOC. INQUIRY 263-64 (2000).

119

See, e.g., Mark A. Michaels, Indigenous Ethics and Alien Laws: Native Traditions and the United States Legal System, 66 FORDHAM L. REV. 1565, 1577 (1988). In an exercise of this dual citizen status, some Native American tribes issue and travel on their own passports, such as the Iroquois Confederacy and the Hopis. Id.


VI. THE POLITICAL STATUS OF FREE ASSOCIATION

A. Free Association Generally

The status of free association is one of three options “recognized by the United Nations

as having the elements of decolonization and full measure of self-government.”120 The United Nations recognizes “the legitimacy of continued association with the former colonial power, provided that the people concerned had made a ‘free and voluntary choice,’ that their cultural integrity was respected, and that they retained the right to opt for a different status in the future.”121 It is not uncommon for small states to establish certain dependencies with other, larger states, assigning them certain important state functions.122 Free association would allow Guam to become a separate state, but it would also enable Guam to maintain close ties with the United States, by giving the U.S. a determined degree of control over matters Guam is not presently equipped to undertake, particularly defense and certain matters of foreign affairs.123

Unlike the other two options, full integration (statehood) and independence, free association is not a pre-defined status; rather, it is “defined only by the agreement for free association itself,”124 which results from “fair arms-length negotiations, a relationship of equality and voluntariness of association.”125 One constitutional scholar has explained free association as follows:

As free association has been defined in the United States context, it means that there are two independent states dealing with each other as such, but that both create a very close association with each other . . . Certain powers, such as the power of denial of the area to foreign powers in defense matters, has [sic] been delegated to one party by the other . . . and the [other party] has extended a number of benefits . . . not granted to other nations.126

120



Daniel Orlow, Of Nations Small: The Small State in International Law, 9 TEMP. INT’L & COMP. L.J. 115, 118 (1995).

123

Position Paper, supra note 1, at 4. Guam’s small size and centuries-long status as a colonial dependency would make matters such as defense an extremely difficult, if not impracticable, undertaking at this time. See discussion infra Part VI.E.

124

Peter Rosenblatt, Free Association Negotiations: A Case Study, PROCEEDINGS: CONFERENCE ON THE FUTURE POLITICAL STATUS OF THE UNITED STATES VIRGIN ISLANDS 32-33 (Paul M. Leary ed., 1988) [hereinafter Rosenblatt Presentation].

125

Id. 126

Troutman, Partial Disposal, supra note 6, at 8.


In its simplest terms, free association differs from independence in that it allows Guam to achieve sovereignty, but does not altogether end the close relationship between Guam and the United States. Although statehood would fully incorporate Guam into the United States and give the island the representation, rights, and protections currently extended to the fifty states, the reality of Guam’s small size and perceived inability to contribute meaningfully to the U.S. economy make statehood a largely unrealistic option.127 Proponents of free association status argue that becoming a freely associated state is the most realistic way by which Guam can obtain decolonization and self-government without divorcing itself from the American ideals of government and way of life to which Guam's people have become accustomed over the last hundred years.128

B. U.S. Examples of Free Association: The Former Trust Territory

The former Trust Territory of the Pacific Islands is an example of the type of free

association arrangements that have been negotiated with the United States. The Trust Territory of the Pacific was comprised of three groups of islands—the Carolines, the Marshalls, and the Marianas.129 A United Nations mandate granted the United States trusteeship over these islands and their 150,000 people in 1947.130 Within the last three decades, these groups of islands have restructured their political statuses and relationships with the United States, resulting in the creation of the U.S. Commonwealth of the Northern Mariana Islands, the Republic of the Marshall Islands, the Federated States of Micronesia, and the Republic of Palau. Since the Northern Mariana Islands have chosen a commonwealth relationship with the United States, they do not have separate sovereignty.131 The Republic of the Marshall Islands,132 the Federated States of Micronesia,133 and, most recently, the Republic of Palau,134 however, have become sovereign

127

Rosenblatt Presentation, supra note 124, at 32 (stating that “it is inconceivable at present, at least as seen from Washington, that tiny territories like the Virgin Islands could achieve statehood.” Though this statement was made in regard to the U.S. Virgin Islands, it is quite applicable to the similar situation of Guam); see also Gutierrez, An American Colony, supra note 15.

128

See Position Paper, supra note 1, at 2. 129


Id. 131

Id. at 430, 477. The CNMI Covenant establishing the U.S. Commonwealth of the Northern Mariana Islands was signed on Feb. 15, 1975. Id.

132

Marian Nash (Leich), Contemporary Practice of the United States Relating to International Law, 89 AM. J. INT’L L. 96 (1995). The Compact of Free Association of the Republic of the Marshall Islands took effect on Oct. 21, 1986. Id.

133

Id. at 96. The Compact of Free Association of the Federated States of Micronesia took effect on Nov. 3, 1986. Id.

134

Id. at 97. The Compact of Free Association of the Republic of Palau took effect on Oct.1, 1994. Id.


states, ending their trust relationship and establishing free association with the United States.135 Through their individual compacts of free association, these sovereign nations have become internally fully self-governing, but have negotiated provisions that maintain a role for the United States with regard to defense, as well as to other issues such as travel, United States residency, and financial/economic assistance.136 Generally, these compacts of free association provide that the United States will defend these states militarily just as it would defend its own territory and citizens.137 To this end, the United States has the right to be consulted concerning (and can veto) the states’ foreign affairs decisions. The United States can also establish military facilities, carry out military operations, and use military force to keep others out of the area.138

The people of the Trust Territory were never U.S. citizens and therefore when negotiating the terms of their respective free association compacts there was no issue of retaining U.S. citizenship. Their compacts of free association do provide, however, that the United States will extend certain benefits associated with citizenship to the citizens of these freely associated states. For example, in addition to receiving military security and defense, the citizens of the Federated States of Micronesia, the Republic of the Marshall Islands, and the Republic of Palau can travel freely into, and within, the United States, can receive an education and work there, can join the U.S. armed forces, can receive some social benefits, and can remain in the United States and obtain lawful permanent resident status.139 Additionally, citizens of these states can receive protection and assistance from U.S. embassies or consular offices when traveling abroad to countries where these states themselves do not have such offices.140

C. The Case of the U.S. Virgin Islands

The case of the U.S. Virgin Islands helps illustrate the possibility of free association

status for Guam. The U.S. Virgin Islands resembles Guam in both its relationship with the United States and its form of government. The United States purchased the U.S. Virgin Islands from Denmark in 1917, and the residents of the island are U.S. citizens141 governed by the

135

Id. at 96. The other member of the Trust Territory, the Northern Mariana Islands, established a covenant with the U.S. to exist in commonwealth status, remaining in political union with and under the sovereignty of the U.S. Id. See also supra note 129 and accompanying text.

136

LAW OF UNITED STATES TERRITORIES, supra note 2, at 473-74. 137

Id. at 474. 138

Id. at 473. As to the U.S.’s veto power over states’ foreign affairs decisions, these states do have the right to an expeditious appeal to the Secretaries of State and Defense. Id.

139

Id. at 474, 477. The citizens of these states cannot, however, enter the United States to establish residency for purposes of naturalization. Id.

140

Telephone Interview with Elfrieda Koshiba, former Compact Impact Information and Education Program Coordinator in Guam (Apr. 15, 2002).

141

See LAW OF UNITED STATES TERRITORIES, supra note 2, at 377. On February 27, 1927, the U.S. Congress granted citizenship to residents on the U.S. Virgin Islands, making such citizenship effective as of January


Revised Organic Act of 1954,142 essentially identical to Guam’s Organic Act. In 1988, the University of the Virgin Islands held a conference on the future political status options of the Virgin Islands, examining the status of commonwealth, free association, statehood, and independence.143 Former U.S. Ambassador for Micronesian Status Negotiation and former Counsel for Guam’s Commission on Self-Determination, Peter Rosenblatt, participated as a panelist at this conference. In suggesting that new negotiations are not constrained by the terms of existing status arrangements, Ambassador Rosenblatt stated: “Do statehood, independence, territorial status and the US-Micronesian free association agreement exhaust all of the status options? The US and Puerto Rico invented a new commonwealth bottle for old territorial wine. The US and Micronesia created a new bottle and a new wine.”144 It therefore stands to reason that Guam’s condition is also amenable to a status tailor-made to fit Guam’s situation. Clearly, Guam’s options for greater self-governance are not restricted to the arrangements already in existence.

Marco Rigau, another expert panelist at this conference, explicitly argued that the question of citizenship for the Virgin Islands could be negotiated into an arrangement of free association.145 He emphasized that there are no specific confines within which the arrangement of free association must lie: “You can have a free association with US citizenship. You can have a free association with US and Virgin Island citizenship. . . . You can have a free association in any fashion that the United States and yourself are willing to negotiate.”146 This statement is pointedly applicable to Guam, and it supports the argument that Guam should not be prevented from crafting a free association arrangement that includes retaining U.S citizenship.

D. Non-U.S. Examples of Free Association-Type Arrangements

Although the status of free association with U.S. citizenship has never before been

negotiated, it is not without precedent on the international scene. The following examples at once demonstrate that free association with U.S. citizenship is a realistic option for Guam, and also provide models for realizing such a status.

17, 1917. Id.

142


See generally PROCEEDINGS: CONFERENCE ON THE FUTURE POLITICAL STATUS OF THE UNITED STATES VIRGIN ISLANDS (Paul M. Leary ed., 1988).

144 Rosenblatt Presentation, supra note 124, at 33 (emphasis added).

145

Marco Rigau, Free Association as a Status Alternative for Unincorporated U.S. Territories and Commonwealths, in PROCEEDINGS: CONFERENCE ON THE FUTURE POLITICAL STATUS OF THE UNITED STATES VIRGIN ISLANDS 33, 38 (Paul M. Leary ed., 1988).

146

Id. Presently, the U.S. Virgin Islands remain, like Guam, an unincorporated, organized territory. LAW OF UNITED STATES TERRITORIES, supra note 2, at 377.


1. Cook Islands-New Zealand

The relationship between the Cook Islands and New Zealand offers one example of a successful transition from colonization to free association in which the formerly-colonized people retained their colonial citizenship.147 This relationship deserves examination because it marks the first time that “this term [free association] applied to this sort of relationship between two entities or states.”148 At the time of the United Nations resolution calling for self-determination for nonself-governing entities,149 the Cook Islands were held as a colony of New Zealand,150 having been ceded to New Zealand by Great Britain in 1901.151 The overriding sentiment, both on the part of colonizers and the colonized, was that the Cook Islands should work toward establishing a government with significant political autonomy, rather than full integration.152

In a study on the future political status of the Cook Islands, one scholar indicated that “full political integration would not be appropriate, because of the group’s geographic isolation from New Zealand, its lower standard of living, and the people’s relative lack of sophistication in Western forms of politics,” while also concluding that “full independence was not a realistic goal.”153 Throughout discussions about their future political status, the Cook Islanders were greatly concerned about the possibility of losing their access to New Zealand citizenship.154 In 1962, the legislative assembly had to choose among four political status options: independence, full integration with New Zealand, a federation of Polynesian countries, or free association with New Zealand.155

Urged by the Minister for Island Territories that “it would be in the best interests of the Cook Islands people to keep the present link with New Zealand, but to have full internal self-government,”156 the legislative assembly opted to pursue such a relationship.157 In the 1964

147

See TIDES OF HISTORY, supra note 13, at 203-05. 148

Paul Leary, The Historical Developments of Free Association in the Pacific and the Caribbean, PROCEEDINGS: CONFERENCE ON THE FUTURE POLITICAL STATUS OF THE UNITED STATES VIRGIN ISLANDS 25-26 (Paul M. Leary ed., 1988) [hereinafter Leary Presentation].

149

Declaration on the Granting of Independence to Colonial Countries and Peoples, supra note 19. 150

See TIDES OF HISTORY, supra note 13, at 196-97. 151

Leary Presentation, supra note 147, at 26. 152


Id. 154

Id. 155

Id. 156

Id. at 202-03.


general election, the people of the Cook Islands approved the proposed status of free association with New Zealand.158 In 1965, the Cook Islands Assembly and New Zealand Parliament gave the status legal legitimacy by signing the Cook Islands Constitutional Amendment Act.159 With the approval of this Act, the novel arrangement termed “free association” went into effect.160

Additional constitutional amendments, in 1981 and 1982, further solidified the Cook Islands’ status as a sovereign nation.161 Although ambiguities have surfaced regarding the degrees and boundaries of the special, freely associated relationship between New Zealand and the Cook Islands, the continuation of the latter’s residents’ New Zealand citizenship is firmly established.162 As recently as June of 2001, the two states reaffirmed this status in their Joint Centenary Declaration: “The people of the Cook Islands will retain New Zealand citizenship, respecting and upholding the fundamental values on which that citizenship was based. The Cook Islanders and New Zealanders share a mutually acceptable standard of values in their laws and policies . . . .”163 Likewise, as a freely associated state, Guam would also hold the same “mutually acceptable standard of values” as the United States.

2. Channel Islands-United Kingdom

Another example of free association with circumstances paralleling Guam’s situation is the arrangement between the Channel Islands and the United Kingdom. Although not termed as such, their political arrangement is conceptually similar to a free association status. Comprised of the Bailiwicks (territories) of Jersey and Guernsey, the Channel Islands are not politically incorporated into the United Kingdom.164 The inhabitants of the Channel Islands, however, are British citizens, giving allegiance to the Crown.165 Although considered Crown dependencies, Jersey and Guernsey are internally self-governing,166 essentially what Guam would seek in a free association arrangement with the United States.

157

Id. at 203. 158

Id. 159

Id. 160

Leary Presentation, supra note 148, at 26. 161


Id. at 203, 205. 163

Joint Centenary Declaration of the Principles of the Relationship Between New Zealand and the Cook Islands, cl. 2, available at http://www.vanuatu.usp.ac.fj/pactreaties/Treaties_etc/ NZ_Cooks_JointDec.html (last visited June 11, 2001).

164

Don Aitken, What is The UK? Is it the same as Britain, Great Britain, or England?, at http://www.alt-usage-english.org/whatistheuk.html (last visited Feb. 14, 2002).

165

Id.


The Channel Islands have fashioned their own institutions of government and laws (based on English law and local statutes) within their territories, while the United Kingdom manages defense and foreign affairs.167 Jersey and Guernsey have their own parliament, the States Assembly.168 A Crown-appointed Lieutenant Governor serves as both head of government and commander of the armed forces,169 and functions primarily as a representative of the Crown.170 The Lieutenant Governor does not have the right to vote in the States Assembly, a privilege reserved for the local elected members, but does have the power to veto any of the Assembly’s decisions regarding matters within the special interest of the Queen.171 Furthermore, acts of the United Kingdom Parliament do not apply to the dependencies unless these dependencies specifically say that they do.172

3. Faroe Islands & Greenland-Denmark

The association that the Faroe Islands and Greenland have with the Kingdom of Denmark is similar to the relationship between the Channel Islands and the United Kingdom. Neither the Faroe Islands nor Greenland is a “colony” of Denmark, but both are governed under the Danish Constitution of 1953.173 Additionally, both the Faroe Islands and Greenland are considered internally self-governing states under the “Danish Realm,” holding Danish citizenship.174 They

166

Id. 167

Id.; CENT. INTELLIGENCE AGENCY, Guernsey, in THE WORLD FACTBOOK 2001 210-11 (2001), available at http://www.cia.gov/cia/publications/factbook/geos/gk.html (last visited Feb. 10, 2003) [hereinafter CIA FACTBOOK, Guernsey]; CENT. INTELLIGENCE AGENCY, Jersey, in THE WORLD FACTBOOK 2001 260 (2001), available at http://www.cia.gov/cia/publications/factbook/geos/je.html (last visited Feb. 10, 2003) [hereinafter CIA FACTBOOK, Jersey].

168

CIA FACTBOOK, Guernsey, supra note 167, at 210; CIA FACTBOOK, Jersey, supra note 167, at 260. 169



CIA FACTBOOK, Guernsey, supra note 167, at 210; CIA FACTBOOK, Jersey, supra note 167, at 260; Website for the States of Jersey, at http://www.jersey.gov.uk/sections/government.htm. (last visited Feb. 12, 2003).

172

Website for the States of Jersey, at http://www.jersey.gov.uk/sections/government.htm (last visited Feb. 12, 2003).

173

CENT. INTELLIGENCE AGENCY, Faroe Islands, in THE WORLD FACTBOOK 2001 167 (2001), available at http://www.cia.gov/cia/publications/factbook/geos/fo.html (last visited Feb. 10, 2003) [hereinafter CIA FACTBOOK, Faroe Islands]; CENT. INTELLIGENCE AGENCY, Greenland, in THE WORLD FACTBOOK 2001 200 (2001), available at http://www.cia.gov/cia/publications/factbook/geos/gl.html (last visited Feb. 10, 2003) [hereinafter CIA FACTBOOK, Greenland].

174

Report Submitted by Denmark, Article 3: Information on the Populations of the Faroe Islands and Greenland, at http://www.humanrights.coe.int/Minorities/Eng/FrameworkConvention/StateReports/1999/denmark/ Article_3.htm (last visited Feb. 12, 2003) [hereinafter Denmark Report].


have a parliamentary democracy under a constitutional monarchy.175 The Faroe Islands have been politically connected with Denmark for centuries, and achieved self-government with the Home Rule Act of 1948; Greenland attained self-government through the Home Rule Act of 1978.176

Considered “self-governing overseas administrative division[s] of Denmark,” the Faroes and Greenland have the Queen of Denmark (represented by an appointed High Commissioner) as their chief of state.177 Legislatively, each has a popularly elected parliament, which in turn elects the Prime Minister.178 Denmark is fully responsible for matters of defense for the Faroes and Greenland, and provides certain economic subsidies as well.179

4. Dutch Affiliated Islands in the Caribbean

In addition to the above examples, the Dutch-affiliated islands in the Caribbean offer yet another model that may be instructive for Guam. The relationship between these islands and the Netherlands provides another example of the type of relationships that larger colonial nations have arranged with smaller island nations. The Netherlands Antilles, for instance, is part of the Kingdom of the Netherlands.180 It became fully self-governing over internal matters in 1954, but the Dutch government maintains control over defense and foreign affairs.181 Aruba, which was part of the Netherlands Antilles until 1986, is now a separate member of the Kingdom of the Netherlands.182 It too is internally autonomous, but yields responsibility for defense and foreign affairs to the Dutch government.183 The political arrangement that the Netherlands Antilles and

175

CIA FACTBOOK, Faroe Islands, supra note 173, at 167; CIA WORLD FACTBOOK, Greenland, supra note 173, at 200.

176

Denmark Report, supra note 174. 177

CIA FACTBOOK, Faroe Islands, supra note 173, at 167; CIA FACTBOOK, Greenland, supra note 173, at 200.

178 CIA FACTBOOK, Faroe Islands, supra note 173, at 167; CIA WORLD FACTBOOK, Greenland, supra note

173, at 200. 179

CIA FACTBOOK, Faroe Islands, supra note 173, at 168; CIA WORLD FACTBOOK, Greenland, supra note 173, at 201.

180

CENT. INTELLIGENCE AGENCY, Netherlands Antilles, in THE WORLD FACTBOOK 2001 363 (2001), available at http://www.cia.gov/cia/publications/factbook/ geos/nt.html (last visited Feb. 10, 2003) [hereinafter CIA FACTBOOK, Netherlands Antilles].

181

Id. 182

CENT. INTELLIGENCE AGENCY, Aruba, in THE WORLD FACTBOOK 2001 26 (2001), available at http://www.cia.gov/cia/publications/factbook/geos/aa.html (last visited Feb. 10, 2003) [hereinafter CIA FACTBOOK, Aruba].

183

Id.


Aruba have with the Netherlands is nearly identical to that of the Danish dependencies.184 The Queen of the Netherlands is chief of state, and is represented locally by an appointed Governor General.185 Additionally, each has a unicameral legislature elected by the people, and a Prime Minister and Deputy Prime Minister elected by the legislative body. 186 Residents of these island entities may hold Dutch citizenship.187

E. Possible Model of Guam-U.S. Free Association

Similar to the aforementioned examples, a freely associated state of Guam could

negotiate to give the United States authority over all matters of defense and access to the island for military purposes, while assuming full authority over its internal government. These matters of defense and military access could be placed solely under the purview of the United States according to the negotiated terms of a compact for free association. To this end, Guam could agree not to enter into any arrangements with any state if such an agreement affects foreign policy in a manner potentially adverse to the U.S. interests of defense and military access. In return for this prized military use of the island, Guam could retain eligibility for United States services and assistance (such as the postal service, civil aviation safety services, emergency management agency programs, and some social benefit programs),188 and could retain U.S. citizenship.

Because free association is accepted internationally as a form of decolonization,189 a freely associated state of Guam could gain access to membership in regional organizations such as the Pacific Islands Development Program and the South Pacific Regional Environmental Program, which Guam currently cannot join as a nonself-governing entity.190 Guam would also be able to control, exploit, and manage the resources in its 200 nautical mile exclusive economic zone (EEZ), which would finally give Guam jurisdiction to manage the use of all “living and nonliving natural resources of the seabed, subsoil, tidelands, and adjacent territorial waters in accordance with international law.”191 When negotiating free association status, Guam may also

184

Id.; compare CIA FACTBOOK, Faroe Islands, supra note 173, at 167; CIA WORLD FACTBOOK, Greenland, supra note 173, at 200.

185 CIA FACTBOOK, Netherlands Antilles, supra note 180, at 363; CIA FACTBOOK, Aruba, supra note 182,

at 27. 186

CIA FACTBOOK, Netherlands Antilles, supra note 180, at 363; CIA FACTBOOK, Aruba, supra note 182, at 27. For examples of international organizations of which the aforementioned island-nations are members, see infra note 191.

187

Id. at 27. 188



Position Paper, supra note 1, at 13-14.


consider allowing the United States to continue representing Guam in the United Nations (and not becoming a member state itself), while representing itself in certain U.N. sub-organizations and other regional organizations.192

In addition, Guam could enter into trade agreements with other Asia-Pacific states, which could have great potential for enhancing Guam’s economy. “Guam’s economic and political association with the US, as a free association, would continue to attract foreign investment and opportunities with its over $3 billion economy, the largest in the Pacific island community.”193 Certainly, doors to economic opportunities would open for Guam as a freely associated state in ways that Guam’s current political status prevents. Moreover, since the United States would retain its use of Guam for military purposes, it will not lose what it has always valued most about Guam—its strategic military importance.194 Given the possible benefits of the status, free association has the potential to evolve into a mutually beneficial arrangement for the United States and the U.S. citizens of Guam.

VII. CONCLUSION

“[G]eographic isolation,” “lower standard of living,” “lack of sophistication in Western

politics”—these words were used to describe the Cook Islands and their people as an argument against full political integration of the Islands into New Zealand.195 In spite of this unflattering perception that their colonizer had of them (whether true or not), the fact remains that the Cook Islanders were not stripped of their access to New Zealand citizenship when they chose free association with New Zealand.

191

Id. at 6. 192

With this, Guam would have first-hand involvement and control in the organizations that most greatly and directly impact its interests, while deferring to the United States on broader or less immediate matters. Some of the other island-nations previously discussed have crafted similar arrangements. Aruba, the Netherlands Antilles, and the Cook Islands, for instance, are not individually represented as member states of the United Nations, but are either associate members or members of the sub-organization United Nations Educational, Scientific, and Cultural Organization (UNESCO) as well as other confederations and organizations outside of the U.N. CIA FACTBOOK, Aruba, supra note 182, at 27; Netherlands Antilles, supra note 180, at 363; Cook Islands, at 120, available at http://www.cia.gov/cia/ publications/factbook/geos/cw.html (last visited Feb. 10, 2003). Aruba and the Netherlands Antilles, in addition to being associate members of UNESCO, are also represented in organizations such as the World Confederation of Labour (WCL) and as observers in the Caribbean Community (Caricom). CIA FACTBOOK, Aruba, supra note 182, at 27; Netherlands Antilles, supra note 180, at 363. The Cook Islands have representation in the African, Caribbean, and Pacific Group of States (ACP), the Food and Agriculture Organization of the United Nations (FAO), Secretariat of the Pacific Community (SPC), and the Organization for the Prohibition of Chemical Weapons (OPCW). CIA FACTBOOK, Cook Islands, at 120. Similarly, allowing the U.S. continued representation of Guam in the U.N. but taking charge of its own representation elsewhere may be a possible option for Guam in negotiating the terms of the association.

193


Gutierrez, An American Colony, supra note 15. 195

TIDES OF HISTORY, supra note 13, at 202; see also discussion supra Part VI.D.1.


Although Guam could have once been described as having a low standard of living and lacking sophistication in Western politics,196 that is hardly the case today. Now, Guam has the highest standard of living and the largest economy in its region,197 despite its inherent encumbrances (limited economic assets, small size, etc.). “Today, with the few resources it has been allowed to use, the small island of Guam and its 140,000198 inhabitants boast a gross island product of more than $3 billion, with even greater potential for the future . . . .”199 And as for the native inhabitants of Guam, even with their distinct cultural traditions, they overwhelmingly view themselves as “American;” they are accustomed to no other way of government than the Western, American way.200 It is incongruous to argue that the people of Guam must be stripped of their U.S. citizenship merely for taking action towards bettering their status and improving their relationship with the United States—a country whose ways have, after a century of association, become very much their own.201

The Territories Clause of the Constitution, which essentially gives Congress the powers to dispose of U.S. territories in any way it sees fit, arguably also gives Congress the implicit power to partially dispose of its authority over the territory of Guam—neither granting it statehood, nor cutting it off entirely.202 It is conceivable and possible to have a freely associated state of Guam in which the United States disposes of its authority to govern Guam internally and represent it in regional associations that affect Guam’s interests directly, while maintaining authority to govern matters of defense and related matters of foreign affairs. It is also conceivable and possible to allow the Americans of Guam to achieve a self-governing status in free association with the United States without taking away their U.S. citizenship.

Although none of the international examples of associations discussed above is without its drawbacks, each of them serves as a model of what is possible for Guam. Each of them provides for an arrangement by which the island-states involved are able to enjoy self-government without being denied the support, protection, and citizenship of their (former) Mother Countries. Each of the cited examples is an arrangement crafted specifically around the nature and experience of the historical relationship of the parties involved.

196 CAMPAIGN FOR POLITICAL RIGHTS, supra note 6, at 36-37 (quoting the 1904 Annual Report by Guam’s

Naval Governor to the Dep’t of Navy, describing the Chamorros as “poor, ignorant, and very dirty in their habits”). 197


The estimated population of Guam as of July, 2001, is roughly 158,000. CENT. INTELLIGENCE AGENCY, Guam, in THE WORLD FACTBOOK 2001 205 (2001), available at http://www.cia.gov/cia/publications/ factbook/geos/gq.html (last visited Feb. 10, 2003).

199

Gutierrez, An American Colony, supra note 15. 200

See generally LAW OF UNITED STATES TERRITORIES, supra note 2, at 402 (stating that the “net effect of the World War II experience was to strengthen the ties of the Guamanians with the United States. From that point on most Guamanians looked upon themselves as patriotic Americans.”); Gutierrez, An American Colony, supra note 15 (stating that “[s]ince the dawn of the relationship between the United States and Guam, the Chamorro people have sought the application of American principles of civil rights and democracy.”)

201

Position Paper, supra note 1, at 5-6. 202

Troutman, Partial Disposal, supra note 6, at 6.


Guam has its own experience and historical relationship with the United States. It is within the framework of that experience and relationship that Guam’s arrangement for free association should be crafted. Indeed, U.S. citizenship—and the fifty-year quest to obtain that status—has been an integral part of Guam’s history and experience. It therefore can and should be a significant part of any future relationship with the United States.

Hannah M.T. Gutierrez203

203

Class of 2003, University of Hawai`i, William S. Richardson School of Law.

guam’s future political status: an argument for free...

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