Promoting Cultural Awareness Through The Humanities

LEGAL HISTORY

In 1916, the Afro-Caribbean inhabitants of the Danish West Indies were not citizens of Denmark; they were subjects of the Danish Crown. When the USA purchased the islands in 1917, neither of the parties involved, which of course did not include these inhabitants, saw any reason to clarify their status. The treaty of cession simply said that Congress would determine their status and civil rights, without stipulating when that would occur.

Interestingly enough, although the treaty provided that Danish citizens residing in the islands who did not elect to preserve their Danish citizenship would become citizens of the USA, the executive branch of the USA government held that such persons became non-citizen U.S. nationals, and not citizens.

The question that I expect has leapt into many minds is - what in the world is a non-citizen US national? Either you are a citizen or you are an alien, right? Actually, no; that is not correct.

Colonial powers seldom gave their colonized populations a status equal to that of their home populations, and as of 1899, when the USA took ownership of Guam, Puerto Rico and the Philippines from Spain, it had become a colonial power. In modern monarchies, the distinction is often made as between citizens and subjects; in non-monarchical states, such as democracies, the distinction is most often stated as citizens as opposed to non-citizen nationals.

Both citizens and non-citizen nationals owe allegiance to the country which has sovereignty over them, but a citizen is entitled to full civil rights and a non-citizen national is not.

This was important in the first ten years of US ownership of the US Virgin Islands. Although persons born in a territory under US sovereignty had previously obtained US citizenship at birth, persons who were born in the US Virgin Islands of parents who were non-citizen nationals of the USA, did not obtain citizenship by birth; their status was restricted to that of their parents.

All of that changed in 1927, when federal law in essence made US citizens of all US Virgin Islanders who were US non-citizen nationals. However, that citizenship was akin to naturalization, in that it was a status awarded by law and not one acquired as of right. That citizenship became effective by law on 5 February 1927 and could have been eliminated by law for persons born after such a revocation. It was not until the Nationality Act of 1940 that persons born in the US Virgin Islands became US citizens at birth in the same way as persons born in the U.S. itself.

The Nationality Act accomplished this by defining the United States to include Puerto Rico and the US Virgin Islands, but only for the purposes of nationality; it did not "incorporate" either territory into the US. In fact six years later, in 1946, the USA placed both Puerto Rico and the US Virgin Islands on the UN list of non-self-governing territories - the list of colonies.

THE YEARNING TO BE U.S.

From the mid-1800s, after the sugar economy bottomed out and its economic heyday as a Danish colony had passed, the Danish West Indies became anxious to be associated with the rising economic power of the hemisphere - the United States of America. The USA was interested, but two possible sales had already fallen through when the possible German threat to the Panama Canal in what came to be known as World War 1 clinched the deal.

The impetus for the acquisition on the part of the US was military and economic, the fact that the territory was inhabited was an asset only in that it meant that labor was available if needed. The fact that the territory was not considered to be a future part of the US is clearly shown in the treaty provisions that both left it outside of the U.S. customs zone and exempted it from the Jones Act requirement that only US ships can carry passengers or freight between U.S. ports. With respect to these laws, the ports of the US Virgin Islands are not considered to be US ports.

Given the history and current status of the relationship between the USA and the USVI, the angst exhibited by many over the differences in the US treatment of the USVI and of its 50 constituent states is entirely misplaced. In my view, the analysis of those who decry the disparities is generally faulty: either they assume that the US Virgin Islands is a part of the USA, which it is not in either domestic or international law, or they mistake rights obtained through residence in one of the 50 states as rights of national citizenship, or they make both the false assumption and the mistake.

IDENTITY AND SELF PRIDE

Probably because it began at an earlier time and developed within a monarchy, British colonial policy made the distinction between what we now call the Administering Power and the Non-Self Governing Territory (NSGT) clearer. The population of its colonies did not become British citizens until quite recently and even then, their citizenship has never been the same as that of those born in the UK. There was never confusion concerning the differing status of those British citizens who settled in the colonies and their descendants on one hand and the people of the territory on the other. Those who lived outside of their country, expatriates, were different both from the people of the place in which they lived and the people of their own homeland and they did not expect to be equated with either.

At present, the people of most NSGTs other than the USVI see their identity as separate from that of their administering power. As Anguilla and Bermuda, to use current examples, debate how to exercise their right to self determination, they are actively evaluating what their options are and what each option will mean to their communities before they make a decision. Only then will they undertake definitive actions to accomplish a change. Unfortunately, what we hear in the US Virgin Islands are efforts to accomplish a change to political integration, such as obtaining the presidential vote, being treated as a state with respect to benefit programs, etc., without having a clear analysis of what our present status entitles us to and the overall effect of such political changes.

As a Non-Self Governing Territory, the U.S. Virgin Islands has an identity and status separate from the USA. As the administering power of the U.S. Virgin Islands, the USA has certain responsibilities to the territory and its people. These responsibilities include the promotion of the social and economic development and the preservation of the cultural identity of the territory.

These responsibilities are designed to encourage the elimination of dependency, which is as much a state of mind as an external condition, and to develop self reliance, which arises from a sense of self worth. With this in mind,

o Rather than justifications for the takeover of USVI park land and territorial waters on the grounds that the territory does not have the means to adequately protect and care for it, why don't we hear demands that the administering power provide the education, training and resources to build the necessary capacity?

o Instead of allowing the territory to keep only those revenues which US law requires and doling out limited funds from programs designed for its constituent states, why doesn't the administering power identify all of the sources of revenue derived from the territory, work in partnership with the territory and international agencies to identify the development needs of the territory as its own entity, and provide, at a minimum, the identified funds, together with appropriate education, training, expertise and additional funds that the territory may not be able to get from elsewhere.

o As it has acknowledged that it has international law obligations toward the territory, why doesn't the USA discontinue the outdated and essentially deceitful method of dealing with the territory through the Interior Department and eliminate the ineffectual oddity of a territorial Delegate to Congress, and establish Congressional and Presidential offices to deal with territorial officials on a basis of mutual respect.

The granting of US citizenship to the residents of the USVI in the same manner as obtained by residents of the USA proper has not only caused confusion in the legal and political spheres. Perhaps more important is the damage that it has done to the psyche of many Virgin Islanders.

Am I the only person that finds it odd that the news of the country that insists in so many ways that the USVI is "unincorporated" i.e., not a part of it, is referred to in the territorial media as our "national" or "domestic" news?

Does anyone else find it anomalous that the Virgin Islands government demanded that the territory participate in the draft for the armed services of the USA in World War II, and then cites the past and continuing sacrifices of its young men, and now women, to "prove" the dedication of the territory to a country which insists on holding it at arms length while refusing to provide the information and resources needed for the territory to make an informed choice as to its future?

Why is it that past or present problems are considered proof that truly effective government by Virgin Islanders is impossible without the oversight of the US government when it is universally recognized that one's true character is shown when you have to stand on your own, knowing that you will bear the consequences of your actions, a situation which no USVI government has faced since the late 1950s?

And why is there no outcry, not even a smattering of concern, about the fact that, although the USVI is a discrete entity, a Non-Self Governing Territory with its own Olympic teams, its own delegations to World conferences, and its own international identity, there is no legal status of U.S. Virgin Islands citizen?

It appears to have been implicitly believed, at least since US economy leapt into high gear in the middle of the last century, that the problems of the US Virgin Islands, which initially were seen as entirely economic, could be resolved by becoming a part of the American Prometheus which brought prosperity, comfort and happiness to all. There does not seem to have been a widespread recognition of the downside of the workings of that economic engine and the culture it spawns, of the positive value of many aspects of the Virgin Islands Caribbean culture, or of the dislocations likely to ensue when those two forces met in the limited theatre of these islands.

In 88 years, the Afro-Caribbean people of the U.S. Virgin Islands have traveled a road from an undefined status in a territory under the sovereignty of the USA to citizenship in a country which maintains that territory in a condition of uncertainty and instability. It is time to stop reacting to immediate difficulties as if they were ultimate issues, to look at the world as a whole, to analyze and evaluate the true range of possibilities for the USVI within that wider context, to make an informed choice, and to act on that choice with the dignity of a people sure of their identity and of their inherent worth.

I thank you for your attention.

Introduction

The issue of citizenship in small island territories is of particular interest to the inhabitants of these territories as the process of political development intensifies and new forms of political relationships are contemplated. The US territories, including the US Virgin Islands (USVI), are no exception,¹ and even among these five US jurisdictions there are some significant differences in the political rights of the US citizens in these territories. This paper seeks to provide some useful comparisons regarding the degree of political rights among the US territories. These rights are then compared to those of the people of other jurisdictions where the level and extent of political rights can be markedly different depending on the nature of the political arrangement of the individual territory.

I.    US Territories
As a baseline, the citizenship rights of the people of the territories of Guam, Puerto Rico and the US Virgin Islands (USVI) can be viewed as quite similar, even given the "commonwealth" label of Puerto Rico which would, at first glance, imply a larger degree of autonomy. In a very real sense, however, the major difference in terms of political rights is only the existence of a constitution in Puerto Rico written by the people of that territory which delineates the internal governance structure. In a practical sense, the political rights of the US citizens in Puerto Rico are virtually identical to those of citizens in Guam and the USVI (The issue of political rights for the US citizens of the District of Columbia (DC) will be examined later).

But it is understood that the political rights of US citizens in these three island territories (Guam, Puerto Rico and the US Virgin Islands) are substantially limited, as it relates to the US political process. These limitations also apply to American Samoa and the Commonwealth of the Northern Mariana Islands (CNMI), the other two US territories. The CNMI, however, has certain autonomous provisions in their Commonwealth Covenant which compensate for the limited rights, and these will be discussed a bit later.

In the case of American Samoa, the people are not US citizens at all, but rather US nationals, and retain many of the traditional governance customs. (This will also be discussed later).

In all five US territories, however, the US Territorial Clause applies which provides that the US Congress has the "power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States."

Given this brief examination description, what are the limitations of political rights of US citizenship for inhabitants of US territories that are different from those of citizens in the 50 states?

US Citizenship in the Territories

The main limitations are well known, and include the lack of authority to vote for the President of the US, and the status of the Congressional representation without the vote in the House of Representatives and without any representation in the US Senate.

Citizenship under these limitations has been referred to as "incomplete" or indicative of a reality that there are "different tiers of citizenship." Former Puerto Rico governor and avid proponent of US statehood for that territory Carlos Romero Barcelo has even described it as an "anti-democratic" relationship.² On the specific issue of voting rights for president, it is important to note that the US courts have repeatedly confirmed the validity of these limitations. Several illustrations are useful.

Deficiencies in Presidential Voting Rights and political representation for US citizens in Puerto Rico

* In the matter of presidential voting rights, the US Court of Appeals for the First Circuit in 2000 on a case filed by Puerto Rico attorney Gregorio Igartua "reversed and vacated" a judgement by the District Court of Puerto Rico that had stated that Puerto Ricans as US citizens had the right to vote for President.³ The District Court of Puerto Rico had ruled that the 24th and 26th amendments of the US Constitution "support(ed) that the right to participate in presidential elections is not a function of state residence, but rather of individual right of citizenship."

In the reversal, the concurring opinion of Appeals Court Justice Juan Torruella concluded that " the Constitution does not guarantee United States citizens residing in Puerto Rico the right to vote in the national presidential election," citing "explicit language in the Constitution providing for the election of the President and Vice President by the States, rather than by individual citizens.⁴

In 2004, the first Circuit again rejected a similar case, and by doing so, ratified an earlier 1996 case, as well as the 2000 case cited above. All three cases were filed by Attorney Igartua.

In the 2004 case, Justice Torruella referred in a written opinion to what he described as "the creation and perpetuation of substandard, second class citizens, with less rights than those enjoyed by the main class of US citizens."
* In the matter of deficiencies in political representation, former Puerto Rico Governor Romero Barcelo articulated in a 2004 Caribbean Business article that:

"...all of the power and authority exercised by the president, the US Congress, and the federal court system is derived from the sovereignty of US citizens residing in the states of the union, not from the US citizens residing in Puerto Rico, who don't vote."⁵

He went on to describe the peculiarity of the applicability of US laws adopted by a Congress in which the people of the territories have no vote, and signed by a US president for whom the people of the territories have no right to vote.

Deficiencies in presidential voting rights and political representation for US citizens in the US Virgin Islands

This brings us to the case filed by Krim Ballentine in 2001 asserting the right to vote for president on the similar premise as that claimed in the three Puerto Rico cases. A decision from the US Court in St. Thomas is awaited, and an appeal to the US Third Circuit may follow.

The hunger strike and letter writing campaign by St. Croix resident Edward Browne during the last presidential election by a US citizen in St. Croix is another method used to draw attention to the issue of limited rights for US citizens in the territories. What was particularly interesting here was the reply from the White House which advised that voting rights for US citizens in the territories was a part of wider issue of political status development which would be addressed in the context of Puerto Rico. This can be read to mean that what is decided for Puerto Rico will be applied to the other territories. If this is the case, perhaps the name of the White House Task Force on Puerto Rico should be re-cast as the White House Task Force on US Territories.

*****

A potential solution to addressing the citizenship dilemma (in part) is the annual submission of legislation, dating back to the 1980's, by most of the non-voting territorial delegates to Congress proposing a constitutional amendment providing US citizens in US territories the right to vote in US presidential elections.⁶

Puerto Rico often opts out of the legislation for strategic political reasons. A pro-statehood Puerto Rico government supports the presidential vote,, but only in the context of US statehood where the presidential vote as well as voting rights in both houses of Congress would be the result.

Meanwhile, pro-commonwealth governments view the extension of the presidential vote as upsetting the political balance of their perceived "autonomous" commonwealth relationship with the United States.

But political scientist and columnist Paul Leary views the possibility of a constitutional amendment on the issue as remote given that it would require 2/3 vote of the US Senate and 3/4 vote of the State legislatures - with a favorable result being that some smaller states would lose power. ⁷Leary questioned in an earlier column:

How is it that the American citizens of the (US)Virgin Islands are still denied basic democratic and human rights? How can a constitutional provision dealing with property be used as the basis for governing people?

If on the surface this question suggests the situation is an infringement on the political rights of US citizens in the territories, one should review the Yale University School of Law 2002 amicus brief filed in the aforementioned Ballentine case in the US Virgin Islands. The brief concluded that the present condition of the US citizens in the USVI "granting neither full political nor civil rights constitutes a violation of its obligations under contemporary international law," as referenced in the ICCPR.⁸

Specifically, the Yale brief pointed out that "the United States assumed additional obligations towards the people of the (US) Virgin Islands when it became a part to the ICCPR (International Covenant on Civil and Political Rights) in 1992," and as such "it must guarantee rights of political participation to all citizens, including the right to vote and to join in the conduct of public affairs."⁹

The Yale text went on to conclude that:
"the United States has failed to satisfy its international legal obligations towards the people of the (US) Virgin Islands(which)...remains in a state of colonialism. The United States' efforts to promote the realization of self-determination have fallen far short of the requirements set forth in international law. Further, the United States' failure to extend full political rights to the people of the (US) Virgin Islands violates the international obligations that the United States purposefully assumed."

Limited rights are also a feature of Washington, D.C., and there are important parallels that can be drawn.

District of Columbia

There are also parallels with the District of Columbia. The lack of full political rights was the subject of a resolution of the Organization for Security and Cooperation in Europe last July in support of equal political representation for the citizens of the District of Columbia (DC). Following the adoption of the resolution, Janise Jenkins, president of the group "Stand up for Democracy" (the coalition of organizations lobbying for international support for DC voting rights), expressed that "voting rights will bring, first of all, self-respect, (and) second, it is going to give us control over our own destiny."

There are presently some four bills before the US Congress to extend some form of Congressional voting rights for DC which presently enjoys presidential voting as a result of the adoption of the 23rd amendment to the US Constitution in 1961. In 2000, the US Supreme Court had ruled that the DC did not have a constitutional right to voting representation in Congress on the premise that only states of the union have such a right - a result which shifted the focus to the legislative arena in order to gain this political right for DC. ¹⁰

Another international determination regarding DC, and with implications for the US territories in the Western Hemisphere (Puerto Rico, USVI), was made on a case filed by a group of non-governmental organizations before the Inter American Commission on Human Rights, a body of the Organisation of American States (OAS), which in 2003 recommended that the United States provide an "effective remedy" which includes "adopting the legislative or other measures necessary to guarantee...the effective right to participate directly or through freely chosen representatives, and in general conditions of equality, in their national legislature."¹¹

In summary, the political rights of the US citizens in the US territories are substantially limited, and substantial concern has been expressed by the US Courts, by the Organization of American States, and by the United Nations that these restrictions result in political inequality.

Specific Cases of the Northern Mariana Islands (CNMI) and American Samoa

CNMI
The unique conditions in two of the US territories, the CNMI and American Samoa, would be useful to discuss here. In the CNMI, the inhabitants have achieved a form of real autonomous governance while at the same time achieving US citizenship in their negotiation with the US to terminate the United Nations trusteeship arrangement under which the CNMI was formally governed.

Accordingly, the Commonwealth Covenant provides that the US citizens of the Northern Marianas "will have the right of local self-government and will govern themselves with respect to internal affairs in accordance with a Constitution of their own adoption."¹² The arrangement also provides for special land ownership provisions for the indigenous population, exemption fro certain Us laws, and other areas of autonomy.

American Samoa

In the case of American Samoa, the inhabitants are not US citizens, but US nationals, and are governed via special arrangements through a Secretarial Order of the US Department of the Interior.

The US republican form of government has been superimposed on the existing traditional system of governance. Thus, the territory has an elected governor, a legislative body (Fono), and a separate judicial system, but also retains elements of the traditional system.

In the case of all five territories, the US territorial clause applies.

How do the political rights of the US territories compare to those of other jurisdictions internationally?

 

II.      United Kingdom (UK) Territories

In the case of the six UK territories in the Atlantic/Caribbean (Bermuda, Turks and Caicos Islands, Cayman Islands, Montserrat, British Virgin Islands and Anguilla), citizenship was conferred on the people following the implementation of recommendations contained in the1999 UK White Paper on Partnership for Peace and Prosperity. This policy supported the right of abode in the UK for the dependent territories citizens (re-named Overseas Territory citizens) It was intended that the right of abode was non-reciprocal, such that UK citizens could not move to the UK in an un-restricted fashion. This was done with the aim of ensuring that the demographic composition of the small territories would not be affected. It is unclear whether the European Union rules would permit such non-reciprocity in future.

Political rights of the new UK citizens

The emergence of the new status of UK citizenship does not, however, come with additional political rights in the UK system. Indeed, legislation was introduced in the UK House of Commons on 1st July 1997 by a ruling party MP in order to provide for some limited form of representation of the UK territories, synonymous to that of the US non-voting delegate to the US Congress. In this connection, the "Representation of Dependencies at Westminister Bill" would have provided for

"limited representation of dependencies other than Gibraltar at the Parliament of the UK...by a non-voting delegate and for the right of the Chief Minister to petition the House of Commons at the bar of the House; to improve for elected members of the Legislative councils (of the UK territories) access to and communications with Members of the House of Commons..."

Interestingly, even this limited form of non voting representation was not considered by the UK Labour Party-led government, even as this would have brought the UK territories up to the level of partial, albeit non-voting, representation in the lower House, consistent with four of the five US territories.

Perhaps this speaks to a fundamental difference in perception on the part of the British vis a vis the US as to the status of the territories. There is no real sentiment in the UK nor in the UKOTs toward political integration - a point made in the White Paper. Contrast this with the clear US statehood sentiment in Puerto Rico through the New Progressive Party (and recently expressed by at least one political leader in American Samoa).

This differing perspective s of the UK and the US have resulted in clear differences in the level of autonomy between, say, the BVI and the USVI. Thus, the BVI controls customs and immigration, while the US controls this function in the USVI (and Puerto Rico). The BVI belongs to a wider range of regional and international institutions such as CARICOM, UNESCO and OECS, while the USVI is eligible to join these same organizations, but experiences inordinate delays in gaining the concurrence of the US Department of State to expand this participation into other regional organizations.

We discussed the US and UK territories. It is useful to also check the citizenship rights of the people of the integrated jurisdictions.

III.      Integrated Jurisdictions

When we compare the limited rights of citizens in the UK or US territories with those of the integrated jurisdictions, we see the distinction. The political rights of the inhabitants of the integrated jurisdictions are based on criteria of full political equality with the shared citizenship. This is the only model where the jurisdiction is "part of the cosmopolitan country." Thus, the people of the integrated jurisdictions have full political representation in the legislative, and voting rights for the executive. Of course, they also have little autonomy since they are totally subsumed into the political structure of the larger country.

In the Caribbean, the overseas departments of Martinique, Guadeloupe (and its dependencies of St Martin, St. Barts, and Marie Galante), and French Guiana (which is actually on the northern coast of South America) are models of full integration into the Republic of France. In these cases, the citizenship does not differ from any other French citizen.

In the US context, the inhabitants of Hawaii have the same full political rights (notwithstanding the method by which Hawaii, in particular, was politically integrated, precipitating an apology from former-US President Bill Clinton).

In the French context, full integration implies full participation, as an integral part of the French state, in the European Union and other economic benefits of European integration. The advancement of full political rights for the overseas departments differs from the partial rights granted to the United States or British territories which are not integrated parts of the US.¹³

A look at the associated countries is also instructive.

IV.      Associated Countries

When we compare the rights of citizens in associated countries, we see a further distinction. The associated countries are based on a unique set of political criteria, and are the product of negotiation between the relevant parties. The three models of association are the Dutch model in the Caribbean, and the New Zealand and U.S. models in the Pacific region.

Dutch Model

The Dutch model of association in the Caribbean is the Netherlands Antilles and Aruba. This model of association is enshrined in the Charter of the Kingdom of the Netherlands which describes the constitutional order in the Kingdom as encompassing the three countries of the Netherlands, the Netherlands Antilles and Aruba. An important dynamic of the relationship is that each country of the association, including the two Antillean countries, enjoy a large degree of autonomy while also maintaining citizenship of the Kingdom.

The provisions setting forth the areas of autonomy are contained in the Charter of the Kingdom of the Netherlands and includes that each country "will conduct their internal interests autonomously... on a basis of equality."

The Charter delineates the duties of the Kingdom vis a vis the powers of the autonomous countries within it. Accordingly, the Kingdom maintains control over defence, foreign relations, nationality and other issues.

There is representation of the autonomous countries in the "Council of Ministers of the Kingdom" through Ministers Plenipotentiary appointed by the Governments of the Netherlands Antilles and Aruba, respectively.

There is a formal system of consultation enshrined in the Charter which provides for the two autonomous countries to participate in the proceedings of the Kingdom Council of State when it is considering matters affecting them.

New Zealand Model

Another model of association is that of New Zealand which maintains autonomous relationships with the Cook Islands and Niue. As in the case of the Dutch model, the inhabitants of these islands share New Zealand citizenship, while enjoying a maximum degree of autonomy

In conformity with this model, the representation of these two sets of islands in the New Zealand capital is that of a representative, which differs from the Dutch model which does have direct representation in the legislative branch of the Dutch Kingdom government.

The US Model

The third association model is the one which emerged from the termination of the former Pacific trusteeship. Accordingly, the Federated States of Micronesia, Marshall Islands, and Palau negotiated separate compacts of free association which do not provide for shared US citizenship, but rather a separate citizenship. In these cases, however, favourable entry for immigration purposes is provided, and the three are full voting members of the United Nations, as opposed the associate membership in various UN bodies that is enjoyed by a number of territories (including the USVI) and associated countries.

While this is the only existing model of association with the US, there is nothing to preclude a new model being formulated with shared citizenship. This would be subject to negotiation, and is a main focus of discussion among advocates in Puerto Rico.

V.      Other Political Forms
Other political forms of small islands jurisdiction combine attributes of integration with attributes of autonomy. These models include the French overseas countries (formerly overseas territories) of French Polynesia and New Caledonia). The inhabitants share French citizenship, but their government have a fair degree of autonomy. In these cases, there is representation in the French Parliament, while at the same time, these autonomous countries can participate in various regional and international organizations with the concurrence of the French which maintains ultimate control over foreign affairs.

A similar model exists between Denmark and its territories of Greenland and the Faroe Islands, where again, there is maximum autonomy coupled with shared Danish citizenship and with representation in the Danish Parliament.

 

VI.      Conclusion

In a practical sense, the level of political rights of the inhabitants of US and other territories, associated states, and other political forms have some interesting similarities in some areas, and marked differences in other areas.

For the US territories, former Puerto Rico Governor and statehood advocate
Carlos Romero Barcelo observed that "the right to political and economic equality and the right to vote...are undoubtedly the most important components of the American citizenship (and) these are precisely the two rights that (people in the US territories) are denied by reason of domicile."

Others who feel that more political power in the US system would be inconsistent with their political interests actively support more autonomy.

I would argue that where political power at the federal level is limited, there needs to be a quid pro quo of substantial autonomy. This is the case with the Dutch and New Zealand models of association and the French model as well.

These models maintain shared citizenship, and in the Dutch and French cases, substantive representation in the legislative bodies of the larger countries. This is coupled with a substantial degree of autonomy.

In the absence of the extension of full political rights which does not appear likely in the foreseeable future, I am hopeful that a similar model can emerge for the USVI which would maintain the shared citizenship, but also provide us with the necessary flexibility to more effectively participate in the globalised world where the ability to adapt to this ever-changing political and economic landscape will be critical to the sustainability of US Virgin Islands society in the years ahead.

 

¹ For the purposes of this paper, the US territories are American Samoa, Guam, the Northern Mariana Islands, Puerto Rico, and the US Virgin Islands.

² Overseas Territories Review, "U.S. Appeals Court Rules Against Puerto Rico's Participation in U.S. Elections," Vol. 3, No. 11, November 2000, Washington, D.C.

³. ibid, pg. 1

⁴ Concurring Opinion of Justice Juan Torruella, Us Court of Appeals; Boston, Mass.;, 13^th October 2000.

⁵ Romero Barcelo, Carlos, Are we a Democracy?, Caribbean Business, San Juan, Puerto Rico;1^st July 2004,

⁶ See H.J. Resolution 101, 108^st Congress "proposing an amendment to the Constitution of the United States regarding presidential election voting rights for residents of all United States territories and commonwealths."

⁷ "Leary, Paul, "On the Fringe of National Life; Virgin Islands Daily News; St. Thomas, US Virgin Islands; 8^th August 04

⁸ I Corbin, Carlyle, "Political and Constitutional Implications of Self-Government in the Caribbean," A paper presented to the United Nations Caribbean Regional Seminar on Advancing the Decolonization Process in the Caribbean and Bermuda; The Valley, Anguilla; 21^st May 2003.

⁹  See Article 25 of the "International Covenant on Civil and Political Rights," adopted and opened for signature, ratification and accession by General Assembly resolution 2200 A (XXI) of 16^th December 1966, with ehtry into force on 23^rd March 1976.

¹⁰  "D.C. Loses Bid for Vote in Congress," Washington Post, Washington, D.C.; 17^th October 2000.

¹¹ Inter American Commision on Human Rights, Report Number 98/03; Case 11.204; 29^th December 2003.

¹² "Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States," Article 1, Section 103; adopted q15 February 1975.

¹³  See Note 8,

This forum should inform the public about inherent rights & International laws to seek self-governance.

Good afternoon Mr. Moderator, fellow panelists, Ladies and Gentlemen.  Thank you for inviting me to participate in this discussion.  As indicated earlier, the topic is "The Ambiguity of our U.S. Citizenship".  The questions are:

1. Why was citizenship not granted in 1917 as an automatic part of the Transfer Treaty?
2. What is the role of the International dimension?
3. What is the distinction between political status and constitutional convention?

Webster's dictionary defines ambiguous as uncertain, indefinite, unclear.  The core meaning is -  something that is likely to have more than one interpretation.   Citizen is defined as "A person owing loyalty to and entitled by birth or naturalization to the protection of a particular state…A resident of a city or town, especially one permitted to vote and enjoy other privileges there."  U.S. obviously means the United States.  When we analyze and recombine the keywords in tonight's topic, we get the following, which is the first issue I am going to briefly address now:

1. how the right of Virgin Islanders to be protected by the United States, and
2. how the right of Virgin Islanders to vote and have certain privileges in the United States, can have different meanings, while
3. the duties and obligations for allegiance and patriotism to the United States are consistently clear and the same whether Virgin Islanders are in a state or in a U.S. territory. (Repeat.)

U.S. Citizenship has a clear meaning for persons born in any of the 50 states such as Florida.  This occurs partly because States are truly internally self-governing.  Florida has a constitution created by its citizens which guarantees this.  Also, since it is fully incorporated into the U.S., the 10^th Amendment to the U.S. Constitution applies to it.  This gives Florida all powers of governance not delegated to the Federal Government.  Contrastingly, US. Citizenship can mean different things at different times for persons born in the U.S. Virgin Islands, depending on where they reside.  This ambiguity occurs since the political status of the V.I. in terms of its degree of self-governance, and because it is not integrated into the U.S., is below that of a state.  In international terms, this territory is defined as being non-self-governing.  Since it has this designation, it is on a short list of places considered colonies by the majority of countries in the world.  Notwithstanding this, the V.I. is defined as an Unincorporated Territory by the United States, apparently because the U.S. Government chooses to emphasize the extent to which these islands are integrated into or a part of the United States body politic, instead of the extent to which this territory is self-governing. As you will see, the U.S. Citizenship given to Virgin Islanders is colored or tainted both by the territory's lack of autonomy, as well as by the lack of integration of these islands into the U.S.A.  In other words the nature of the U.S. Citizenship granted to Virgin Islanders is limited and sometimes unclear due to the political status of this territory.

Let us quickly examine the privileges and obligations of U.S. citizens born in a state like Florida.  These citizens have certain clear and consistent obligations, citizenship rights and privileges.  For example, they have to defend the U.S. in times of war.  When the draft is in effect, the males have to participate.  When assuming certain government positions, they have to take an oath of loyalty.  U.S. Citizens born in Florida also can vote for the President or run for this office.  They can vote for two U.S. Senators and several full-voting members of the House of Representatives.  They can also run for these positions. According to Article II Section 1, Clause 5 of the U.S. Constitution, persons born in Florida or in any other state, clearly are eligible to be President or Vice President.  Federal District Court Judges in Florida or in any state, receive their authorization from Article III of the U.S. Constitution, which provides them with certain privileges.  For example, they are appointed for life and cannot have their salary reduced by Congress.  Thus their independence is protected.

Let us now examine U.S. Citizenship for persons born in the Virgin Islands.  Virgin Islanders have certain clear and consistent duties and obligations to the United States of America, but when it comes to rights and privileges, here is where the ambiguity enters.  Just as a citizen born in Florida, Virgin Islanders have to defend the U.S. in times of war.  When the draft was in effect, V.I. males had to participate.  Since then women and men may have served in Grenada and Panama, and many who only joined the National Guard to serve domestically, have to go and serve internationally in Afghanistan, Iraq or Cuba. 

When assuming certain government positions, U.S. Citizens in the Virgin Islands have to take an oath of loyalty to uphold the Constitution and Government of the United States despite the fact that they have no voting representation in either house of Congress.  This means that Virgin Islanders cannot run or vote for any seat in the Senate.  In the House of Representatives, all we get is a non-voting Delegate.  With respect to taxation, Virgin Islanders are obligated to pay Federal Taxes, but unlike a state like Florida, where federal taxes go to Washington D.C., these revenues stay in the V.I. Isn't this confusing?

U.S. Citizens who reside in the Virgin Islands, cannot run for or serve as president or vice-president of the United States.  There have been several instances where the citizenship of presidential candidates who were not born in one of the 50 states, has been an issue.  Remember the case of Barry Goldwater, who was born in Arizona before it was a state.  An article found on wikipedia.org states. "It is conceivable that, since he was not born within the actual United States, he may not have been a natural-born citizen as required by the Constitution of the United States, and thus it is possible he would have been ineligible to be elected president."  Other presidential candidates such as George Romney, who was born in Mexico, and most recently John McCain, who was born in the Panama Canal Zone when it was a U.S. Territory, have had their eligibility for the presidency questioned.

 Now some persons have argued that the 14^th Amendment's definition of citizenship would allow persons who were not born in a state to run for President.  However, that is merely an opinion.  It is not clear that such is the case.  According to another article on Wikipedia, "…no Supreme Court case has yet squarely addressed what ‘natural born Citizen' means in the context of Article II, Section 1, Clause 5 of the U.S. Constitution."  In other words, when it comes to being qualified to serve as President of the United States, the natural born citizenship issue has not yet been settled.

Interestingly, to further confuse this 14^th amendment interpretation, Justice Brown in Downes v. Bidwell (1901), wrote that:

"Upon the other hand, the 14th Amendment, upon the subject of citizenship, declares only that 'all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States, and of the state wherein they reside.' Here there is a limitation to persons born or naturalized in the United States, which is not extended to persons born in any place 'subject to their jurisdiction.' "

All of this further confirms the ambiguous nature of the U.S. Citizenship rights for persons not born in a state, but in a territory such as the Virgin Islands. 

The ambiguous nature of our U.S. citizenship also extends to the Judicial Branch of government.  District Court Judges in the, Virgin Islands receive their authorization from Article IV of the U.S. Constitution, which gives Congress almost unlimited authority over property and territory.  This decision makes federal justices in the V.I., second class justices when compared with Article III Judges.  For example, these federal judges in the V.I., are appointed for only ten years and can have their salary reduced by Congress.  Thus there independence is not protected as that of Article III Justices.  One rationale for this was expressed by a Supreme Court "injustice", Brown in Downes vs. Bidwell in 1901.

"…growing out of the presumably ephemeral nature of a territorial government, the provisions of the Constitution relating to the life tenure of judges is inapplicable to courts created by Congress, even in territories which are incorporated into the United States,

Simply because a territory may be only temporary, does that give the U.S. Government the right to discriminate against and thus accord lesser privileges to District Court Judges there?  Apparently the U.S. Government holds this position, but it does not hold it consistently.  District Court judges in Puerto, which is called a Commonwealth, (but in reality U.S. courts have consistently held that it really is an Unincorporated Territory.)  Anyway, these Puerto Rican Federal Court judges, receive their authorization from Article III of the U. S. Constitution.  However, in Guam, which is also a Commonwealth, District Court Justices, just like in the V.I., come under Article IV of the U.S. Constitution.  More territorial ambiguity again.

Now let me address the specific questions raised for discussion.

1) Why was citizenship not granted in 1917 as an automatic part of the Transfer Treaty?

First, I disagree with the question as worded.  A careful reading of Article 6 of the Treaty of Cession between Denmark and the U.S would show that U.S. Citizenship was automatically granted, but to whom?   The fact is that U.S. Citizenship was not provided to all persons residing in these islands at the time of the transfer, but to some.  This distinction was one of the most glaring discriminatory provisions in the treaty.  The Danish Citizens in these islands automatically became U.S. Citizens, if they did not exercise the privilege of keeping their Danish Citizenship within one year.  Of course, if one were to scrutinize the demographic situation of the V.I. in 1917, one would see that Danish citizens were mainly white persons.  Nevertheless, in the same article of the Treaty, the civil rights and political status, (which included citizenship), of the "inhabitants" was to be determined by Congress.  Inhabitants used here, was clearly a euphemism for the Black majority of the population.  Most Blacks were not given any choice regarding citizenship, unless of course, they happened to be Danes.  As was later discovered, they had been made "nationals" in the United States.  This was some kind of nebulous inferior status below that of a U.S. Citizen.  Due to this, the entire U.S. Constitution did not apply to them.  Only the "fundamental" protections applied. 

Citizenship was not considered a fundamental right for the Black majority, only for the Danish citizens. 

Thus, in 1917, they were not automatically granted several of the rights and privileges given to U.S. Citizens in the original territories of the U.S. prior to the last decade of the 19^th century, such as trial by jury, the right to a Grand Jury, U.S. Citizenship, etc.

Just as had been done with Puerto Rico and Guam in the Treaty of Paris 19 years earlier, the U.S. treated its territories that did not have a majority of whites, differently from the practice consistently utilized for its original territories on the U.S. mainland, which had consisted largely of whites.  The original contiguous territories were immediately incorporated into the United States, where almost the entire Constitution automatically applied to them and the white inhabitants were immediately made citizens of the United States.  One of the only privileges they did not have was voting representation in Congress.  The only exception was in Alaska where the "Uncivilized Natives" were treated differently from the Whites. (Boyer, Civil Liberties in the U.S.V.I., 1917-1949, p. 3)  According to William Boyer, it had been assumed that these territories "were but extensions of the nation and entitled, not as a privilege, but as a right, to all the benefits of equality that the states enjoyed in the field of civil rights."  (Boyer, Civil Liberties. P. 2)  The status of these territories was regarded as being only temporary.  The plan was to prepare them for eventual admission as a state. (ibid. p.2)  This practice was called the "doctrine of equality" by Boyer.  In it the Caucasian residents of territories were treated as the equals of other U.S. Citizens in the existing states.  Their territory also was expected to join the union as a state as soon as they were ready.  There was no mention of the need for these territories to be incorporated into the U.S. or for Congress to determine their civil rights and political status as was the case for Guam, Puerto Rico and eventually the V.I. 

This was the prevailing practice until the end of the 19^th century.  However, when the U.S. acquired Guam, Puerto Rico and the Philippines at the end of the Spanish American War, it changed its practice of treating territories and the residents therein according to the doctrine of equality.  It utilized what became known as the "Doctrine of Incorporation" for these new possessions.  The U.S government did not automatically incorporate these new places into the U.S by making the U.S. Constitution automatically apply as much as possible, as had been the common practice.  The Supreme Court invented a nebulous concept of incorporation to determine whether a territory and its inhabitants would have the Constitution automatically apply.

According to inJustice Brown of the Supreme Court:

"…while in an international sense Porto Rico was not a foreign country, since it was subject to the sovereignty of and was owned by the United States, it was foreign to the United States in a domestic sense, [182 U.S. 244, 342]   because the island had not been incorporated into the United States, but was merely appurtenant thereto as a possession.

Have you ever heard any more twisted logic?  Foreign in a domestic sense?

"We are therefore of opinion that the island of Porto Rico is a territory appurtenant and belonging to the United States, but not a part of the United States within the revenue clauses of the Constitution; "

The same twisted reasoning was applied to the Virgin Islands in 1917 and used to deny full citizenship rights to the majority of Blacks, while granting these rights to the Danes.  You see, the U.S. Government never intended for these non-contiguous territories where the majority of the population was nonwhite, to become states.  Some persons even contend that it was only when the population of Hawaii had become "white" enough, was it admitted as a state.  When one reads the Insular Cases, particularly Downes v. Bidwell, it is obvious that a small plurality of the Justices, led curiously by Judges with colorful names such as Brown and White, did not feel that persons of color who possessed different cultural practices, would be able to appreciate and properly utilize the privileges and rights accorded to U.S. Citizens.   

According to Judge Brown: "It is obvious that in the annexation of outlying and distant possessions grave questions will arise from differences of race, habits, laws, and customs of the people, and from differences of soil, climate, and production, which may require action on the part of Congress that would be quite unnecessary in the annexation of contiguous territory inhabited only by people of the same race, or by scattered bodies of native Indians. "

As such, all kinds of distinctions were created to deny the people of color in these newly acquired territories, the equal treatment that had become the practice up until this point.

The Supreme Court also invented an artificial distinction between fundamental and formal parts of the U.S. Constitution in its attempt to justify this blatant discrimination. 

 

According to Judge Brown:

"We suggest, without intending to decide, that there may be a distinction between certain natural rights enforced in the Constitution by prohibitions against interference with them, and what may be termed artificial or remedial rights which are peculiar to our own system of jurisprudence. Of the former class are the rights to one's own religious opinions and to a public expression of them, or, as sometimes said, to worship God according to the dictates of one's own conscience; the right to personal liberty and individual property; to freedom of speech and of the press; to free access to courts of justice, to due process of law, and to an equal protection of the laws; to immunities from unreasonable searches and seizures, as well as cruel and unusual punishments; and to such other immunities as are in- [182 U.S. 244, 283]   dispensable to a free government. Of the latter class are the rights to citizenship, to suffrage (Minor v. Happersett, 21 Wall. 162, 22 L. ed. 627 ), and to the particular methods of procedure pointed out in the Constitution, which are peculiar to Anglo-Saxon jurisprudence, and some of which have already been held by the states to be unnecessary to the proper protection of individuals."

Finally, the treaty of Cession between Denmark and the U.S. explicitly stated that Congress would determine the political status and civil rights of the inhabitants. These justices, (this title is really  a misnomer for them.) They ought to be called injustices of the Supreme Court based on their writings.  They apparently felt that only what they defined as "the fundamental" protections of the U.S. Constitution need apply to the peoples in these territories.  According to them, U.S. Citizenship was not one of these rights and due to racial and ethnic considerations, it was not automatically granted to the Black majority of residents in the Virgin Islands in 1917.  When it was finally granted by statute not by the Constitution's 14^th Amendment, in 1927, it was merely a second class U.S. Citizenship.

2) What is the role of International dimension?

I understood this to be asking what are the international principles, resolutions and legal standards which apply to the U.S. Virgin Islands when political status issues are involved.  According to William Boyer, the basis for making international treaties and laws apply to the V.I.'s quest to determine a final status is that since "The United States is a founding member state of the United Nations,…and of course, a signatory of the U.N. Charter, which accordingly, has the status of a U.S. Treaty under Article VI, clause 2, of the U.S. Constitution—the so-called ‘supremacy clause' –and, therefore, the U.N. Charter is a part of "the supreme law of the land."("The United States Virgin Islands and Decolonization of the Eastern Caribbean", 1985, p. 40). 

Article VI, clause 2 of the U.S.  Constitution states as follows:

"This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the  authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any state to the contrary notwithstanding."

As indicated previously, the Virgin Islands are on an infamous list of non-self-governing territories, maintained by the United Nations.  Due to this the U.S. has to provide a report periodically to the U.N., about the steps taken to move the V.I. toward a final status that is acceptable to international standards.  One document that clearly applies in this instance is the United Nations Charter, Chapter 11, Sections 73(A-E)

It is called:

DECLARATION REGARDING NON-SELF-GOVERNING TERRITORIES
Article 73

It states in part that:

Members of the United Nations which have or assume responsibilities for the administration of territories whose peoples have not yet attained a full measure of self-government recognize the principle that the interests of the inhabitants of these territories are paramount, and accept as a sacred trust the obligation to promote to the utmost, within the system of international peace and security established by the present Charter, the well-being of the inhabitants of these territories, and, to this end:

a. to ensure, with due respect for the culture of the peoples concerned, their political, economic, social, and educational advancement, their just treatment, and their protection against abuses;

b. to develop self-government, to take due account of the political aspirations of the peoples, and to assist them in the progressive development of their free political institutions, according to the particular circumstances of each territory and its peoples and their varying stages of advancement;

e. to transmit regularly to the Secretary-General for information purposes, subject to such limitation as security and constitutional considerations may require, statistical and other information of a technical nature relating to economic, social, and educational conditions in the territories for which they are respectively responsible other than those territories to which Chapters XII and XIII apply.

Also, other scholars and international law experts hold that General Assembly Resolutions of the United Nations, are relevant to the final determination of political status in the Virgin Islands.  Two of the most famous and relevant documents of this type are Resolutions 1514 and 1541, both created in December, 1960.  due to time constraints, I will not read them in their entirety.  Section 5 of Resolution 1514 states that:

5. Immediate steps shall be taken, in Trust and Non-Self-Governing Territories or all other territories which have not yet attained independence, to transfer all powers to the peoples of those territories, without any conditions or reservations, in accordance with their freely expressed will and desire, without any distinction as to race, creed or colour, in order to enable them to enjoy complete independence and freedom.

With respect to Resolution 1541, Principle VI lists the specific ways that a non-self-governing territory such as the Virgin Islands can come to be considered  as being self-governing

 

Principle VI

A Non-Self-Governing Territory can be said to have reached a full measure of self-government by:

a.      Emergence as a sovereign independent State;

b.     Free association with an independent State; or

c.     Integration with an independent State.

In addition to resolutions 1514 and 1541, their have been several other resolutions based on the reports submitted to the U.N. by the U.S.   One of the most recent is Resolution 59/478 of October 29, 2004.  In this document, the Governing Powers, (in our case the United States), are reminded that over 43 years have passed since Resolution 1514 and there still exist non-self-governing territories.  The resolution discusses the most recent issues in each of the territories, and makes recommendations for each.

Finally the Universal Declaration of Human Rights is another United Nations' document that is relevant in the international dimension.

This Universal Declaration of Human Rights as a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of Member States themselves and among the peoples of territories under their jurisdiction.

Article 1

All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.

Article 2

Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non self-governing or under any other limitation of sovereignty.

 The final question was:

3) What is the distinction between political status and constitutional    convention?

There is a clear distinction between determining one's political status and holding a constitutional convention.  Political status is governed primarily by the international law and international legal standards just mentioned before and included in U.N. Resolutions and in the U.N. Charter.  Determining this would fundamentally change the relationship between a non-self-governing territory and its governing power.  According to Resolution 1541 of the United Nations, there exist only three options that will satisfy the requirements for selecting a political status and would remove a territory from the list of non-self-governing territories.  They are Free Association, Independence and Integration.  On the other hand, drafting and approving a constitution in the Virgin Islands, is based primarily on U.S. law.  Specifically it is based on the authorization received by Congress, first in 1976 with Public Law 94-584 and later in the 1980's with another congressional act.  However, neither authorization permits the V.I. to include any item that will change the V.I.'s political status or affect the current federal-territorial relationship.  The above is the major distinction between the two terms in the context of the U.S. Virgin Islands.

THANK YOU

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