III. SELF-DETERMINATION FOR THE NATIVE PEOPLE OF GUAM Section 102(a) of the draft Commonwealth Act provides the mechanism for the people of Guam to exercise their inherent right of self-determination. As set forth in a bracketed agreement signed on October 2, 1991, the Congress directs that the Commonwealth Constitution shall establish a procedure for a plebiscite on future political status. Those who will be eligible to vote are those who Congress decided were eligible for citizenship in 1950 -- those who were born on Guam prior to the granting of citizenship and their descendants. Section 102(c) provides for a recognition by the United States that the Chamorro culture is endangered as a result of the 500-year history of colonialism in Guam and the unfettered immigration permitted over the last 30 years. In recognition, the Congress directs the adoption of programs (1) to revitalize the Chamorro culture and (2) enhance the economic, social, educational and job opportunities of the Chamorro people. In addition, it authorizes Guam to implement similar programs. This provision recognizes Congress' budget limitations and transfers some of the burden to Guam to assist in remedying past discriminatory practices. A. UNITED STATES HISTORICAL AND INTERNATIONAL TREATY A compelling historical basis exists for this right to exercise self-determination. In its First Report on H.R. 98 released in August of 1989, the Task Force recognized that others among Guam's current residents have had a choice [of self determination]: Statesiders, Asians, Micronesians from the former Trust 8 U.S.C. 1407(a). This self-determination vote by the Native People of Guam should not be confused with the ratification process planned for Commonwealth or for the Commonwealth Constitution. Under procedures proposed in Title XII, all eligible voters on Guam will be entitled to vote to approve or disapprove the Commonwealth Act as passed by Congress. Thereafter all these same eligible voters will be entitled to vote for electors to a constitutional convention. They will also be entitled to vote for the Constitution which may contain a procedure for the vote. Act was passed and the people of Guam became citizens of the United States, nor at any other time. First Report at 9 (emphasis added). With this compelling statement, the Task Force sounded a clarion call for selfdetermination, recognizing that the native people of Guam have had no meaningful role in their own governance since they were colonized in the 1500s. First, they lived under three centuries of Spanish rule, during which time their population was reduced from 100,000 to 5,000 by the turn of the 18th century. In 1898, Spain ceded the island of Guam to the United States in the Treaty of Paris, which ended the Spanish-American War. With the island came responsibility for the native people of Guam. As a part of its obligations under the Treaty of Paris, the United States agreed that "[t]he civil and political status of native inhabitants of the territories hereby ceded to the United States shall be determined by the Congress." 30 Stat. 1759. The United States, therefore, undertook as a treaty obligation responsibility for the political status of the native people of Guam, the Chamorros. After 1898, Guam was ruled by a military Governor and largely left alone, giving the native population the opportunity to reestablish itself. By 1940, the Chamorro population had risen to approximately 20,000, out of a total island population of 22,290, or over 90% of the local population. The other 9% was made up of Statesiders (referred to as "whites" in census documents) (3.5%), Filipinos (2.6%), and others (3.4%). In 1941, Guam was attacked by Japan and occupied by yet another colonial power, until liberated by American forces in July 1944. After the cessation of hostilities, the people of Guam while liberated from Japanese tyranny -- remained under what was recognized by international law as a colonial arrangement. Thus, when the U.N. Charter was implemented in the post-war era, the U.S. accepted inclusion of Guam on the U.N. list of non-self-governing areas. Although the Congress adopted an Organic Act for Guam which served in place of a local constitution, 48 U.S.C.A. §§1421 et seq., the native Guamanians (then numbering approximately 27,000, see, note following 48 U.S.C.A. §1421) were offered no meaningful role in their political affairs. The Organic Act did provide for a locally 4 See Examining Board v. Flores de Otero, 426 U.S. 572, 586 n. 16 (noting the "broad" powers vested in Congress by the Territorial Clause, and pointing specifically to the authority granted Congress by the Treaty of Paris). S/ At the same time, Congress also granted citizenship to the residents of Guam. 8 U.S.C. 1407 (a). This citizenship, however, was limited to a class of residents which generally were those persons and their descendants who were inhabitants of Guam on April 11, 1899 -- in other words, the Chamorro people. This is essentially the same (continued...) elected legislature and local court system, but the Executive was a governor appointed by the United States, and Congress reserved the power to override any legislation adopted by the locally elected legislature. 48 U.S.C.A. §1423i. Furthermore, the United States District Court for Guam served as an appellate court for appeals from the local court system. Perhaps the most onerous example of the ongoing colonial regime was a restriction on travel to and from Guam. The United States established a military security zone encompassing the entirety of Guam. No person, whether Chamorro or non-Chamorro, was permitted to enter or exit Guam without military approval. Families were divided and the people of Guam became prisoners on their own island, or exiles from it -- if circumstances found them elsewhere. Importantly, however, these travel restrictions did provide some limitation on immigration into Guam, except for temporary military, United States Government personnel, and contract laborers. The local Chamorro population was not diluted significantly during this period. These restrictions were finally lifted by President Kennedy in 1962 as part of a review of United States policy toward Guam and the Trust Territories of the Pacific Islands. At the time of liberation, the vast majority of Guam's permanent population was native Guamanian. By 1946 the Navy reported a native population of 22,689, with a total island population of 23,136, excluding military. By 1950, however, the total population of Guam was permitted to expand to 59,498, with 27,124 Chamorros (45.6%), 7,258 Filipinos (12.2%) and 22,290 "whites" (38.5%). It is believed that the vast majority of Filipinos and Statesiders on the island during the late 1940s and 1950s were brought there by the United States Government as a part of Guam's development as a military facility. This population was transient and offered no immediate threat to the native population's ultimate ability to control internal island affairs. By the mid-1960s, however, a new kind of immigration pattern was beginning to emerge. After travel restrictions were lifted by the military and especially after the S/(...continued) class of persons named in Section 102(a) of the draft Act as those who would be eligible to participate in a future and final act of self-determination. & 84.2% of those immigrating to Guam between reoccupation (1944) and 1950 were males who came either for military assignments or as part of the imported labor force. 7/ In 1952, the Immigration and Nationality Act designated Guam as a part of the United States for Immigration purposes. Immigration and Nationality Act of 1952, sec. 403, 66 Stat. 280. In addition, the U.S. Board of Immigration Appeals held that certain nonimmigrant alien workers admitted prior to December, 1952, were entitled to permanent U.S. residency under the 1917 Immigration Act. As a result, by February, (continued...) end of the Vietnam war, United States law and policy encouraged massive immigration, principally from Southeast Asia. As United States law on immigration changed to a country-quota system, Asians had unprecedented access to the United States. Because Congress had designated Guam as a part of the United States for permanent residency purposes, Guam, with its close proximity to Asia, became a magnet for immigrants, especially from the troubled Philippines. These immigrants are far less transient than their U.S. mainland predecessors, as the following Table demonstrates. (...continued) 1962, 1,700 Filipino workers were able to obtain permanent residency on Guam. Another 200 nonresident aliens were also admitted by 1962 and an additional 1,458 aliens were admitted by 1967, all of whom had entered Guam with military permission. |