Righting Wrongs and Wronging Rights

Judge Frances Tydingco-Gatewood recently ruled in favor of Dave Davis in his lawsuit alleging that his constitutional right to vote is being violated by him not being able to register for Guam's decolonization plebiscite. The past few weeks have been difficult with plenty of debate and discussion about what to do next and how something like this could have happened. How a country supposed based on ideas of freedom and liberty could care so little about such ideas when it comes to the very people it has colonized for more than a century?

A decolonization plebiscite is not the same as voting for senators, mayors or presidents. It is a vote that comes once in a lifetime and is about righting a historical wrong. In a decolonization plebiscite those who have long been denied basic human rights in their own lands, are given the chance to express their preference for what future political status they want to pursue. Most plebiscites feature three basic options for a future political status, integration, free association or independence. The fact that a court might somehow pretend that they are the same is both incredibly laughable and terribly tragic.

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Correcting a 'wrong' from 1950
by Juan Flores
The Guam Daily Post
3/24/17

What if ... the U.S. were to right a wrong from 1950? How could future actions regarding political self-determination make up for the colonization imposed by Spain and the United States? Why should the pre-Organic Act Guam residents and their descendants have a legitimate right to determine the island's political future?

Chief Judge Frances Tydingco-Gatewood did her due diligence in deciding on the Davis case based on federal laws. She is a federal judge and is expected to honor the letter and intent of the U.S. Constitution. It's natural to have an emotional and negative reaction to her ruling but our issue should not be toward the judge's decision but to question the premises on which the lawsuit and the ruling were based when it comes to the island's political self-determination.

Foreign 'ownership' of Guam

There has to be some acknowledgement that the Treaty of Paris that led to the exchange of "ownership" of our island and other territories from Spain to the U.S. after the Spanish-American War was perverse at best. It went against respect for what a group of people who live in a particular place can and should expect from other entities. Treating people as if they were commodities, regardless of benevolent intentions, was and is wrong and should not be perpetuated. The United states has exercised those actions often and Guam just happens to be one of the instances in which that exercise of power ruled the day.

In 1950, the United States Congress and the president enacted the Organic Act of Guam, setting the stage for establishing the island as a U.S. territory, U.S. citizenship for the residents of Guam and changing the rule of the island from the military to another federal bureaucracy. While the passage of the Organic Act was requested by the Guam congress and a few honorable men personally lobbied for its passage, there was no plebiscite or islandwide vote to determine that the majority of the residents in 1950 supported the act.

For emphasis, the Organic Act was written to determine what was to be true for the "residents" of Guam at the time. If the residents at the time were not given the opportunity to decide on the island's political status, it is those residents and their descendants that should be given the opportunity to make the determination of the island's political status today. The residents in 1950 could have included my grandfather, who came to Guam from the Philippines to work for the Navy at the beginning of the 20th century. It could include military personnel who chose to live on Guam after their tour of duty or who chose to move to the island. It could include our neighbors from other Micronesian islands who found their way to Guam at the time. And, of course, it includes the native Chamorros, most of whom lived through and were subjected to the atrocities of the Japanese occupation during World War II.

Not an issue of race

This does not have to be a racial issue. If Mr. Davis' father or grandfather were living on Guam before the enactment of the Organic Act, he could claim a right to participate in a vote for political self-determination, not because of Chamorro heritage but because his ancestors were residents of the island when Guam's formal association with the United States was enacted and put into effect. The Decolonization Registry should include those who could document that they were residents of Guam before Aug. 1, 1950, or document that they are descendants of those residents.

This perspective does not violate the intent of the 15th Amendment to the U.S. constitution. While it may be argued that the Decolonization Registry and the rights of the Guam residents and their descendants may exclude some from the opportunity to make a critical decision for the island, it should be noted that the 15th Amendment was enacted 50 years before the 19th Amendment, giving the women in the U.S., the right to vote. The move to established the registry and the eventual vote is based not on exclusion, but on the sole inclusion of those who were denied that opportunity as residents of Guam in 1950 and to pass on that right to their descendants.

The United States of America, as an imperfect union, should correct a wrong that was imposed on the residents of Guam in 1950. It should not ask the surviving residents and their descendants just to move on and ignore history, the way our country has ignored the genocide of the Native Americans, the centuries of enslavement of Africans, the internment of the Japanese during World War II and the current targeted immigration bans.

The right to decide

Many who question the premise that U.S. laws will prevail and, once again, the rightful residents of Guam will be denied an opportunity to determine the island's political status, may openly and proudly declare that they are in favor of the current or stronger, better-defined ties with the United States. Many will proclaim their desire to hold on to their U.S. citizenship. What we may be calling for right now is the legitimate right to make that decision rather than having that decision imposed on us. We will honor our ancestors and we will honor the international rights of all human beings if we are afforded that opportunity.

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 Decolonization Never Easy or Fair
by Michael Lujan Bevacqua
Pacific Daily News
3/17/17

Judge Frances Tydingco-Gatewood’s decision last week in favor of Dave Davis and against the rights of Guam’s indigenous people was not surprising. For those familiar with the U.S. court system, it has long been designed to take rights away from indigenous people of the U.S., and instead develop nonsensical, self-serving arguments that force incorporation of the indigenous people and their lands/resources into the union.

For your average federal judge, the particularities of Guam’s status or the quest of Chamorros for decolonization are trivial and mean little. As a Chamorro herself, we might have hoped that Tydingco-Gatewood would have taken this decision as a chance to expand American notions of justice.

This would mean to take seriously its history and its contemporary responsibilities as a colonizer, and simply follow its obligations as a signatory to the United Nations charter. To also take seriously the notions that the U.S. and its court system are based on issues of justice or liberty, and what that would mean in terms of how to guide the decolonization of the sites of American-made injustice and liberty deprived in the name of American interests. 

She had a chance to make a very courageous intervention into a web of legal decisions that has long been hostile to indigenous people, Chamorros included — to make her decision in the name of American ideals that people often speak of proudly but are suddenly rare and impossible to find when the territories are concerned. 

Tydingco-Gatewood instead chose to act like nearly all her brethren of the U.S. court system might, to simply erase the indigenous people, their rights and pretend that the answer to American colonialism, is more American colonialism.

Tåya’ tininas na chålan gi hilo’ tåno’. For indigenous people in the United States and other countries, this is sadly the way our tale tends to unfold. The struggle for justice in the name of self-determination or decolonization is never straight, clear or fair. Part of the reason is because our fights take place within legal systems that are built on indigenous injustice and rife with delusions of American exceptionalism and sinlessness.

These court systems and the decisions that comprise them are mazes. They are created through convoluted, often insane legal paths, the blazing of which result in the sovereignty of an indigenous people disappearing and only objects of American power remaining.

Almost two centuries ago, the infamous Marshall Cases represented one such magical maze. Native American tribes went into those legal cases as independent nations, recognized through the U.S. Constitution and various treaties, but were under assault by those wishing to displace them or possess their lands. When those same tribes emerged, their sovereignty and rights had been lost in the legal labyrinth and henceforth the U.S. court system has referred to them as domestic dependent nations.
This is a familiar, cruel and degenerative alchemy, where the precious inalienable right to self-determination or sovereignty is transformed into dead weights meant to further chain the indigenous people to their colonizer.

The more a country is convinced of its greatness, the more difficult it is for its colonies to be decolonized in any meaningful way. Decolonization, in order to mean anything, requires an admission that a possession and the indigenous people attached to it demand or deserve more than what the colonizer is willing to give.

It is a process that should not be controlled by the colonizer, as such amounts to continuing colonization. It should not be something that must follow the rules of the colonizer, as that as well simply means further colonization.

Michael Lujan Bevacqua is an author, artist, activist and assistant professor of Chamorro studies at the University of Guam.

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US federal court ruling 'frustrating' for Guam decolonisation
 Dateline Pacific
Radio New Zealand
3/13/17

A long-time campaigner for Guam's independence says a federal court ruling last week is frustrating, and misses the point of decolonisation.

The island's push for plebscite on its political status was dealt a setback when a judge ruled the law limiting a vote to native inhabitants was unconstitutional, violating the rights of non-native residents.
The case was brought to the US federal court on Guam by Arnold Davis, a white, non-native resident, who sued the government after he claimed his constitutional rights were violated by the limits.
But Victoria-Lola Leon Guerrero, who is the co-chair of the Independence for Guam committee, told Jamie Tahana the vote should be limited to native inhabitants, as it's their rights that were taken away.

Transcript

VICTORIA LOLA LEON GUERRERO: This is not actually a civil rights issue. In fact a decolonisation vote is not a right that should be extended to all because it is a vote that is intended to restore a right that was taken away from a very specific group of people. And that is the human right of sovereignty, and in this case this specific group of people are the Chamorro people are the native people of Guam. And through colonisation, the island's community has become very diverse and we have a huge settler community here. And so Dave Davis is arguing that all who have settled in Guam as a result of colonisation should be equally entitled to this vote. That really misses the genuine intent of decolonisation to right the historical wrong of colonisation in the first place. The judge's decision was that the plebiscite in particular was race-based discrimination and not allowing Dave Davis who is not a native inhabitant of the island to register to vote in the plebiscite that that was race-based discrimination and violated the fourteenth and fifteenth amendments of the constitution. But we are regularly reminded, and as enforced by the insular cases, that the constitution doesn't entirely apply to the unincorporated territories.

JAMIE TAHANA: Ok, so the argument here that it's unconstitutional has a certain irony, considering you can;t actually vote (in the US) or anything like that?

VLLG: Exactly. And this idea that the constitution applies only when the United States wants it to, right when it benefits their interests and not ours, you know, that is incredibly ironic. And the irony also of classifying this plebiscite as a racist action, when colonisation itself was a form of racism that we continue to live with the effects of. In (the case of) Downes v Bidwell, they literally called us an alien race not deserving of the same rights as Americans, and that the constitution does not apply. And so in that tone, that is where the racism actually occurred. And so it is deeply problematic that the judgement and now the community rhetoric around this notion that a native people seeking self-determination is racist is very destructive to our community, to our sense of identity and also to the decolonisation process as a whole. We are simply saying that this particular decision, this particular remedy to a historical wrong should be done by those who were wronged. And in that, we are not using a racist classification or denying people their basic, everyday human rights. But the Chamorro people have been denied their right to sovereignty and therefore the Chamorro people should determine and exercise that right.

JT: The settler community has been there for a long time. Do they have a right to any kind of say in all this?

VLLG: Well not in the initial plebiscite which is really an expression of indigenous desire, right, what is the desire of the indigenous group that was colonised in moving forward? What type of political status would we desire as an indigenous community that was colonised? After that desire is expressed and fought for in congress, whatever political status is chosen would essentially need a constitution, would essentially need to design a government around that political status. And in that time, you would open up to the entire community because it would form the new government of Guam.
JT: What does this ruling mean for the current process towards a plebiscite?

VLLG: Well Judge Frances Tydingco-Gatewood basically banned the government of Guam from having a plebiscite with the definition of native inhabitants, right, so having this type of plebiscite. What it means is the government itself and the people of Guam, particularly the Chamorro people of Guam will have to figure out how will we proceed? Do we have to draft a new law, create a new decolonisation process? But the judge's decision does not allow for the plebiscite to occur as it is currently dictated by law. So then this will be a matter that our lawmakers will have to address, 'how then shall we proceed'. The Governor has said that he wants the Attorney-General to appeal to the highest court. But he's also said that he's willing to have a plebiscite that everybody will vote in, and that there will be two separate boxes - they identify whether they are native or non-native. I think that right now, it's so fresh in our community. We still need to strategise, we still need to come together and find out what are the next steps. But for us, the next step is not to cower or stop in our efforts, but rather to work harder.