Sunday, November 06, 2016

Divided We Go Nowhere

I spent some time recently with former Governor of Guam Joseph Ada. It was a very enlightening experience and one that I will most definitely be writing about or incorporating into my research and activism with regards to Guam's decolonization. There was one thing that stood out though, especially when comparing the time when Joseph Ada was Governor (1986-1994) to the current moment under the leadership of Governor Eddie Calvo. In both eras Guam's political status remains a fundamental unresolved issue that leaks out and affects so many other aspects of life, even if the general population doesn't understand it or accept the connections. During the term of Governor Ada, the Government of Guam was well organized and focused on negotiating with the US Congress and Feds over the proposed Commonwealth status. These negotiations eventually failed under the term of his successor Governor Carl Gutierrez, but the negotiation of a new, transitional political status for Guam that would have represented significant improvements over our current unincorporated status was almost accomplished. Under Governor Calvo, although he has made several very eloquent speeches on the need to change Guam's political status and provided some modest funds for education, the passion and follow-through befitting of someone who is Guam's chief executive and strongly believes in decolonization is simply not there. Calvo and the executive director of the Commission on Decolonization have accomplished much more than the administration of the previous Governor Felix Camacho, but there still isn't a strong collaboration or understanding of what needs to be done for a decolonization plebiscite and subsequent negotiations with Congress to take place. I am hoping in his last two years in office, Calvo (with some help from the Legislature) decides to put more resources and manpower towards the Decolonization Commission, so that we can move from profound statements, to concrete efforts towards education.

One thing that I have sometimes heard used as an excuse for why the Calvo administration isn't focused or hasn't done as much on this issue compared to Governor Ada's administration is due to the scarcity of resources. During Ada's tenure there was so much salape' everywhere on Guam due to the booming Japanese economy. There is definitely some truth to this as the economy is nowhere near as robust as it was back then. But this is only somewhat significant. A movement like this to educate and push for political status change doesn't need a great deal of money, although that definitely helps in terms of developing studies, materials and disseminating ideas effectively. Several other things such as a vision, community and intra-governmental cooperation and effective leadership in many ways aren't present yet.

But given the article about Puerto Rico that I've posted below, this is also one major aspect that worked effectively in the past, but is almost completely absent today. In the time of Governor Ada there was a strong working relationship between the territories, on this issue and others. Conferences were held, governmental task forces and relationships were forged, and there was a sense of solidarity and purpose that created some small shreds of power in a context for territories and their non-voting delegates had little. In Washington D.C. we see some cooperation amongst non-voting delegates from the six territories of the US (Guam, US Virgin Islands, American Samoa, CNMI, Puerto Rico and Washington DC), but this doesn't extend to the governments in many ways and certainly not in terms of moving together in solidarity towards decolonization and greater self-government. This type of network is incredibly necessary, not just in terms of symbolic solidarity, but also practical application. Since when any colony of the US tries to move ahead and negotiate their political future with the US, they would do better to have their territorial allies working and standing beside them.

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Puerto Rico's Dream, Denied
by Vann Newkirk II
The Atlantic
June 14, 2016

Status questions are now settled for Puerto Rico and other United States territories. They will remain congressional dependencies with little to no self-determination—colonies, in effect—until Congress says otherwise, allowing them to become states or become independent. This week, the Supreme Court decided a case involving Puerto Rico’s debt structure and chose whether to hear a case involving birthright citizenship in American Samoa, two final rulings in a collection of legal challenges from the territories. A ruling in Puerto Rico v. Franklin California Tax-Free Trust and a denial of review for Tuaua v. United States on Monday effectively ended a budding theory of self-determination in these areas and confirmed a federal legal view of territories that was established during the height of American imperialism.

Puerto Rico’s fight was probably over last week. A Supreme Court ruling in the case Puerto Rico v. Sanchez Valle, which was about double-jeopardy protections for Puerto Ricans, established that Puerto Rico has no real authority it does not derive from Congress. The U.S. House’s easy passage of the debt-relief bill PROMESA stripped away even more of Puerto Rico’s functional self-governing authority, establishing an independent board with no Puerto Rican oversight that can restructure Puerto Rico’s debts and set financial priorities. The Court’s ruling in Puerto Rico v. Franklin California Tax-Free Trust affirmed both of these policies, clarifying that Puerto Rico cannot create its own municipal bankruptcy code and is also excluded from the normal bankruptcy protections granted to municipalities in states, leaving its only legal restructuring path with Congress. With financial ruin fast approaching for the island, it seems the only legally viable path for debt relief is an upcoming vote on PROMESA in the Senate.

The Court also decided not to weigh in on Tuaua v. United States. In refusing to hear the case, the Court affirmed the ruling in the D.C. Circuit Court of Appeals that automatic birthright citizenship does not apply to people born in American Samoa. American Samoans are born as U.S. nationals, not American citizens, and must be naturalized in order to vote or hold office. The D.C. court’s ruling is based on two things: the ambiguity of the Constitution’s citizenship clause with respect to unincorporated territories and outlying possessions, and the will of many American Samoans to remain a functionally separate and self-governing people.

These rulings on Puerto Rico undermine the possibility of self-governance in any territory. The courts ruled that ultimate sovereignty and the right to govern comes from Congress and Congress alone for territories. Puerto Rico has reached the highest legal status possible for a U.S. territory—it’s an incorporated commonwealth—but it is still legally distinct from states, with no real self-governance beyond what Congress allows. This is also true of territories that do not hold commonwealth status, such as American Samoa, Guam, and the U.S. Virgin Islands. People in territories will not be able to grant themselves privileges equivalent to those afforded in states—most notably the right to vote for congressional representation—until Congress so decides.

In a recent conversation, the Puerto Rican territorial-law scholar Carlos Iván Gorrín Peralta told me that with this recent slate of court cases and legislation, the “ambiguity of 60 years is disappearing.” He was referring to the decades since Puerto Rico was declared self-governing and granted the ability to organize a constitution and government, actions which Puerto Rico’s lawyers used as the basis for their arguments in court. Over the past few weeks, the Supreme Court and Congress have articulated firm limits on Puerto Rico’s power, and the executive branch joined in through amicus curiae briefs. The position of the United States government with respect to its territories has never been clearer. Optimism among self-determination activists and scholars in the territories has been subdued.
Aside from presidential campaign promises and some passionate speeches during the PROMESA debate, there hasn’t been much word from Congress or the administration on just what this all means for the prospect of statehood or independence for Puerto Rico and the unincorporated territories. Both are possibilities, especially for Puerto Rico: Congress may not be eager to act as its sole, ultimate authority for long, especially facing the massive responsibility of Puerto Rico’s debt. These decisions could also lead up to independence for the territories, as the United States will probably face more pressure from the United Nations and other international bodies to allow the territories freedom if they cannot become parts of the Union proper.

But the end of this series of decisions could just as easily perpetuate America's old history of imperialism, defined by the acquisition of territory without offers of full American citizenship. Under current law, only the United States government can choose to grant these rights. Judging by the last few weeks, people seeking higher status in territories might be waiting for a long time yet.

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