Sunday, June 16, 2013

Escaping a Legal Maze

There has been alot of buzz lately around a case that was filed last year on behalf of a group of Samoans, that is a challenge to the Insular Cases and the relationship of people that live in unincorporated territories to the United States. The short name for it is Tuaua v. the United States.

Samoa's relationship to the United States is perhaps even more interesting than Guam's. Although they are a territory and a colony as well, because of the particularity of their history, they are less intimately connected to the US than Guam is. If they are born in American Samoa then they are not US Citizens but instead nationals. They have US passports that have a disclaimer that clarifies that they are not truly US Citizens. They have a traditional government system that exists today alongside the government that has come through territorial status. They are not eligible to as many Federal programs as people in Guam, but they have more autonomy and local control.

Part of the team in Tuaua v. The United States is Neil Weare, a former resident of Guam and graduate of Yale Law School. He was recently on island to give several talks about the case of also publicize the group he is spearheading, "We the People Project," which is dedicated to getting equal rights as Americans for the people living in the territories.

For this case I am both very hopeful but also wary. I am excited and hopeful since it represents yet another challenge to the Insular Cases. These are what legal scholars and historians refer to as the set of racist legal arguments that create the framework for formal US colonialism. Part of the reason why US historians, legal scholars and American Studies people eagerly identify the Insular Cases as the basis for US colonialism, imperialism and Empire is because of the way it allows you to buy into the argument that the imperial and colonial actions of the US prior to 1898 then seems to have no clear productive meaning. It was stuff that just happened along the way while the US was figuring itself out. Only some Native Americans suffered, and not even that many. In truth, the US operated as a colonial power from the moment it was born. But by identifying the colonialism of 1898 as the foundation for critiques, it allows you to forget so much else and not think of it in a coherently critical context.

One of the many ways that I am disappointed in this island and in the Chamorro people is the way we do not educate ourselves about the things that truly matter. How we establish ourselves as political beings and collect texts in order to understand it, speaks more to how we wish we were, and how we have been effectively colonized, as opposed to what we really are. Our educational system teaches our students accept their relationship to the United States as being just like any state, like the Americans they see on TV. While the Constitution truly affects Guam, why don't we educate ourselves about the Insular Cases in the same way? These cases have more to do about what Guam is in relation to the United States, why do students not learn about them until they are in college?

But this is a critique I have long had since the days of the previous self-determination movements. There were grand plans about changing curriculum in schools to properly educate our children about the island's political status and their history. Nothing ever came from that except for the publication of the text books. Political status issues, the truth of Guam's place in the world today is relegated to something that some teachers can address, but don't really have to. As a result, even though we had some very strong movements for political status change in the 80's and 90's, we have little to show for it today except for an opening of the discursive space to make such conversations more possible.

As I've written about before, political status conversations are much more tolerated now than in the past. But in many cases this tolerance is articulated not within an actual acceptance of the right of Chamorros to self-determine or the need for Guam to decolonize, but rather because of the overreaching right of "Americans" to freedom of speech. It is allowed more than before as a testament to how great American truly is since even speech that goes against it in this regard can be tolerated and can be aired in the public square.  Has the Guam community achieved a higher level of consciousness in terms of political status because of this greater freedom in discussing it? I would argue no. Leaders in the past and leaders in the present did not take advantage of much of anything to truly push this issue and so years have been wasted. At the level of government discourse there have been real changes. As Roland Stade argues in his book Pacific Passages, all would be leaders have to take a position or at least engage in some way with political status issues. It is not like the past when you could dismiss all of that as ridiculous to even discuss.

So challenging the Insular Cases can be a good way of raising our consciousness about our situation. Helping us understand the truth of Guam and its relationship to the US today. Although the case is not directly about Guam is can have huge effects on Guam, since the case is about how territories or unincorporated areas of the US relate to the sovereignty of the US. Do these places have any rights on their own? Do they have rights since the US controls them? Or are the Insular Cases right in claiming that all such rights only belong to the US Congress to determine?

Neil Weare has been criticized for this case both in Guam but mainly in American Samoa, since it may take the issue of self-determination out of the hands of the colonized people, and make it something that the courts will determine. Weare has responded that this isn't necessarily true. In my opinion he is right. If the defendants from American Samoa win this case it doesn't automatically mean that the right of Chamorros to self-determination will disappear. It will most likely however make it more difficult.

There are many different ways to see the legal world. The ideal form of it however, it rarely what affects the world, especially for those populations and communities which are marginal, oppressed or weak politically. While the legal world may work in a just, ideal fashion for an individual, especially one that the embedded systems of classicism, sexism and racism infer as being a "normal" person, this is not the case for those that are abnormal, deviant, or unincorporated. For them, the legal world, even in its ideal form is formed through their potential exclusion. Or to use another phrase, you are not a subject within that legal world, but an object upon which the rules are built to make it possible. It is not made for you, but created through your exclusion.

This is the case for both Native Americans and for the unincorporated territories. The system isn't meant for you. It isn't meant to recognize your rights or protect your rights. The system has been built through a sometimes slow, sometimes quick process of legal engulfment. If we look at the origins of both communities in the US legal system, their inclusion is made possible through a primal subordination which no one ever wants to revisit. Native Americans were originally sovereign nations in relation to the US, but within a couple decades had been totally and completely re-imagined legally so that they now basically belong to the United States. The legal history there is shocking and despicable, but few people want to even understand it or fix it. The Insular Cases represents something similar for the unincorporated territories. These territories could have many possible paths, but the Insular Cases traps them in a particular form, where they belong to the US and have no inherent rights or destiny.

All hope is not lost for these communities, but as they try to find their way through these legal mazes, their hope is channeled in a particular direction, always towards being further engulfed and more included. It becomes impossible to argue that you deserve more autonomy and more sovereignty. The legal maze you are in does not allow movements in that direction, it only accepts arguments that bring you further into the fold of the United States and its control.

Because of this, the legal maze may not appear to be all that bad. For those who accept the colonial rule of the United States, the legal maze can appear to be a saving grace. If you accept the colonial rule of the United States, then the world becomes a game of becoming more American. It is all a slow, sometimes frustrating process of making yourself more American, and finding ways to include yourself and prove yourself. The courts and that legal maze, which is already fixed so that you can only move towards the United States can appear to be helpful and getting you there.

A number of former Guam leaders have shown interest in Weare's case because it does represent this potential. For many people resolving Guam's political status is not a neutral process, but about finally becoming part of the American family that people have craved for so long. This is the easiest way to approach decolonization since it is the only path that Guam's colonization really allows. The US has shown vague support for "self-determination" but has always made clear that this is "self-determination" within the US and would not allow/support anything that does not align with US laws and US interests. I feel they are also supporting this case because it is at least something.

At present the Decolonization Commission isn't really going anywhere. For a variety of reasons both the Governor's Office and Legislature have lost interest in the process. I am the Task Force Chair for Independence and we've been very active for the past year, but the other two Task Force Chairs are waiting for money from the government before moving forward with any activities or outreach. Decolonization on our own is a difficult and frustrating process, but if we were to just leave it up to the US and let them take care of everything it would be so much easier. If only the courts or the Congress could tell us what's next for us, we could avoid all this gridlock and work.

As I said I am happy that the Insular Cases are being challenged, although I do wish that the challenge was not so much based on inclusion, but rather challenged the idea that the territories have no inherent rights. But I am in a serious minority in terms of how I see Guam and its colonial status. For most people they feel colonialism in terms of being a disrespected, excluded and incomplete American. They are drawn to Statehood not because they understand what it might mean for Guam, but because they hope that it can fulfill their long felt desires to become one with the United States. Support for Statehood is fueled by colonial feelings of dependency. I want something else for Guam, I believe that Guam should have the right to choose whatever it wants, and not be limited by what the US believes it should be, or what US courts or Congress pass laws and judgements that it should be.

It is possible that one day the legal maze that the US has created around Guam could suddenly be lifted or opened. It could be a single decision that basically creates an opening for more of a century of unilateral colonial authority to finally be weakened. It could even be this decision that does it. But it is unlikely. Legal mazes are not easily tampered with in this way. They generally have an organic way of sealing off any potential openings, to keep those trapped consistently trapped and only moving in one possible direction.

If a case like this has the ability to create those openings then I am all for it. But if it becomes just another way of trapping Guam, then of course I am wary. The benefit of opening things up for Guam is that it doesn't not mean that it puts Guam on the path to independence. The only thing it means is that the path ahead is clear, and isn't dominated by what the US wants or will allow. The right to self-determination is something that is sacred and should be taken more seriously by both people on Guam and in the United States. I hope that cases like this one can open the discussion up, but I fear that they will only limit it further, by deepening that legal maze and thickening the walls so there is no escape for Chamorros and for Guam, save for through the sovereignty of the United States.

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