Some thoughts about Article 12

Editor’s Note: Due to its length, this letter is being published in two parts.

Article 12 of the CNMI Constitution—“a requirement that the acquisition of permanent and long term interest in real property be restricted to persons of Northern Marianas descent”—generates lively discussions at any CNMI political gathering, historical review, or educational setting. Discussion ranges from violations of U.S. constitutional principles (equal rights), constraints on economic development, and the debate about whether the provision was only meant to be a holding clause rather than a permanent policy.

In Don Farrell’s revised History of the Northern Marianas (negotiating the Covenant, page 605), it outlined the Marianas political status negotiators’ top priorities. The Marianas delegation identified four areas of prime concern: 1) a defined political status unique to the desires of the people of the Northern Marianas; 2) control over the all lands in the Northern Marianas and protection against land alienation; 3) economic and financial assistance to create a stable community; and 4) a smooth transition upon the termination of the trusteeships. But in a recent first part Article 12 television series on Flame tree TV sponsored by the Northern Marianas Humanities Council, Mr. Vicente Santos says that in the course of the negotiation, at first there was no mention of any land alienation restriction. The issue on land came about when U.S. negotiators bared their U.S. military land needs that covered a big area. This excited, and also concerned the NMI status negotiators, for they expected land use but did not expect the extent of this land needs.

A reading of the Report of the United Nations visiting mission to the Trust Territory of the Pacific Islands in 1961 will facilitate the background necessary to understand the political self-determination processes for self-governance that Marianas Islands and its people underwent through. The U.S. Nathan Report for the Marianas on Economic development mentioned land utilization but no specific on land alienation restrictions, but it did report on the financial aids, human resources, and infrastructures needed to integrate the Marianas in the American political system.

As a Commonwealth, the Northern Mariana Islands recognizes U.S. sovereignty with limitations in some respects, especially concerning the applicability of federal laws. “Covenant Section 105 provides that many provisions of the Covenant may be modified only with the joint consent of the U.S. and CNMI Governments; as of November 1997, only one such amendment has been enacted—Public Law 98-213 9(97 stat. 1461), a measure revising Covenant section 606 (b); concerning Social Security taxes and benefits.”

At the outset of the status negotiations between the Marianas and U.S. delegations, it was apparent that both delegations have a concern on limited land availability in the Marianas. The two delegations worked mutually in ensuring that scarcity of land will be addressed in the resulting negotiations, in which they did in Section 805 and Article 12 of the CNMI Constitution. I found a declassified document scanned and digitalized in adobe searchable PDF format, a collection of the Northern Marianas Humanities Council titled, “Power of Marianas to Limit Transfers of Land to Marianan Ancestry.” It basically explored legislations that if enacted will withstand constitutional scrutiny. It was also recorded that not everyone was in agreement for the inclusion of land alienation restriction in the proposal of the Covenant agreement. Citing the same objection on grounds of encroachment on equal rights as mandated in the amendment to the U.S. Constitution, some members of the Marianas status delegation at that time was quoted that the Covenant agreement will not pass both houses of the U.S. Congress and will be vetoed by the U.S. President. But it did pass both U.S. congressional houses, with one senator making his disapproval of the Covenant agreement known, and was signed by the U.S. president.

The economic arguments for or against Article 12 have been the most vocal in the debates. Those who are for Article 12 argue that the CNMI does not have any inherent rich natural resources, mineral deposits, or vast tracts of lands for agriculture and other economic, long-term activity. (There were some reports in the media a few years back, and just recently, that huge amounts of hydrothermal deposits or valuable minerals are sitting on CNMI’s submerged sea floor, but no official word from the local government affirmed this reports.) Yet those in opposition of the restriction feel that its removal will lead to the CNMI’s complete independence from federal subsidy in the foreseeable future. In my humble belief, with or without Article 12’s restrictions, economic development in the CNMI will consistently be dependent on federal subsidy, now and in the future years to come.

Article 12 also has important political dimension. So far, the CNMI land alienation restriction provisions have been upheld in the courts, and perhaps will even survive lawsuits on the equal protection clause of the 14th Amendment of the U.S. Constitution simply because the “one man, one vote” doctrine might not be applicable to the CNMI Constitution’s Article 12 because of its disproportionate population against that of the United States. This theoretical assumption on disproportionate ratio also is the reason for a non-voting delegate, and the inability of the U.S. insular possessions to vote for the U.S. presidency, I conjecture. As the U.S. citizen population in the CNMI is more diverse now compared to 30 some years ago, we will, I think, soon find out. An amendment to the CNMI Constitution requires ratification, but voting for the land alienation provision is restricted to NMDs only. A challenge in the U.S. courts might appear due to perceived violations of U.S. voting rights on exclusive restrictions.

It would also seem that exclusive land alienation restrictions are not limited to the Commonwealth of the Northern Marianas Island. Peter Larmour, staff at Crawford School of Public Policy, wrote an article titled “Land Tenure Provisions of Pacific Island Constitutions.” Larmour enumerated and compared 15 Pacific Islands’ constitutions that deal with land and land alienation provisions. Most of the Pacific Islands in Larmour’s article have restrictive land alienation laws favoring that of island ancestry.

Adding to the complications of the CNMI’s land alienation restriction is its inherent connection to the cultural identity of a group of people. Those who do not agree with the proponents to abolish Article 12 argue that culture does not only reside in land. I would like to note that, according to some well known authors on Pacific Islands, from the initial European contact Pacific islanders did not voluntarily gave up their right to self-rule—“the historical experience of the Pacific people, including the people of the Marianas, are contrary to the cultural experiences of dominant nations.” It was taken under the pretense of civilizing the uncivilized islanders. Many, including the indigenous people of the Northern Marianas Islands, and other Pacific islands did not have the opportunity to fully establish their unique cultural identity in the modern sense since Pacific islanders for most time were under the shadow of European or Asian tutelage. Today, Pacific island cultural identity revival might be frowned upon by European and U.S. mainlanders because of their documented historical experience on race but for Pacific Islands people it is a must to ensure their place in history of their own doing. That their own native “cultural identity” places them in the world theater, not under any administrative power that undermines their right to self-determination.

To be continued

Bryan Manabat
Chalan Kanoa, Saipan