Common hope, peace, justice, and opportunity for all

The buzz in the villages started this year when the national immigration reform bill, S. 744, was passed by the U.S. Senate by a vote of 68-32 on June 27.

This bill has provisions that provide for a pathway to citizenship for many foreign workers in the CNMI. According to Delegate Gregorio Kilili C. Sablan, “include allowing long-time CNMI residents to remain on the islands” to work here, travel in and out, and after five years apply to become U.S. permanent residents. If S. 744 passes the House with the CNMI provision still intact, that would allow long-term foreigners to apply for a CNMI-only status within months of the bill’s enactment.”

Those covered include legal foreign workers who have been in the CNMI since at least 2003, and those with U.S. citizen children After an additional five-year waiting period, these aliens can start applying for U.S. permanent residence status, the “green card,” a pathway to U.S. citizenship.

According to Section 2109 of S.744, there are six groups of aliens eligible to apply for a CNMI-only permanent resident status within months of S. 744’s enactment into law, should the House approve it. First group: Those persons born in the CNMI between Jan. 1, 1974, and Jan. 9, 1978. Second group: Those persons granted CNMI permanent resident status under CNMI immigration law. Third group: A spouse or child of the first and second groups. Fourth group: The immediate family members of U.S. citizens, regardless of age. Fifth group: Foreign workers in the CNMI that were admitted under CNMI immigration law five years prior to May 8, 2008, and are presently resident under CW-1 status. Sixth group: The spouse and children of individuals in the fifth group.

According to news reports, Gov. Eloy S. Inos reiterated his support for this provision in S. 744 granting a pathway to improved status for long-term aliens in the CNMI. He also believes that the CNMI-specific provision does not violate the Covenant.

Inos said, “To me, when we signed the Covenant [with the United States], we essentially gave up the immigration.”

The CNMI fears that without an extension of the CW program, the local tourism-based economy would collapse because the islands still lack enough U.S. workers to take over the jobs held by over 12,000 skilled, professional foreign workers.

Based on news reports, the Saipan Chamber of Commerce, the largest business group in the CNMI, reiterated its support for Delegate Sablan’s efforts to help provide improved immigration status to long-term legal aliens “because it’s the right thing to do.” The Chamber also supports efforts to train and employ U.S. workers, partnering with government and private entities to make this happen.

Chamber president Alex Sablan, in his message to members, said the Chamber continues to hope that initiatives will be implemented that will truly develop training, certification and/or degree programs relevant to the CNMI business community’s needs, particularly tourism.

He said there will be potentially 1,200 to 1,500 additional hotel rooms in the next two to four years “and a local workforce ill-prepared to enter this market.”

“While it is a current necessity, our hotel industry is training in-house to meet their most immediate needs but this is not and should not be the case in the CNMI,” Sablan said.

The Chamber president also talked about these foreign workers’ lasting relationships with community members—as best friends, friends, husbands, and wives.

“For these and many more reasons, the board of directors and many in the membership continue to support Congressman Kilili’s effort to provide for a CNMI permanent resident status for these individuals because it’s the right thing to do,” Sablan added.

On Nov. 15, 2013, the CNMI House of Representatives adopted Resolution 18-34 expressing disapproval of Section 2109 of S. 744. Ogumoro opposes Section 2109 because she believes that granting permanent resident status and U.S. citizenship to these foreigners in the CNMI violates the right of the indigenous people (Chamorros and Carolinians) to self-government under Sections 103 and 105 of Article I of the CNMI Covenant, which is U.S. Public Law 94-241.

The U.S. government’s control over immigration in the CNMI was established in Title VII of U.S. Public Law 110-229. Rep. Ogumoro and others have argued that this part of Title VII violates the right of the people of the CNMI to self-government under Sections 103 and 105 of Article I of the Covenant. However, Section 503 and 503(a) of the Covenant state that “the immigration and naturalization laws of the United States…will not apply to the Northern Mariana Islands except in the manner and to the extent made applicable to them by the Congress by law after termination of the Trusteeship Agreement.” Whether or not Section 503 and 503(a) are in conflict with Sections 103 and 105 is a matter of statutory interpretation. Two legal rules of statutory interpretation are (1) Courts will, if possible, interpret provisions of a law so that they are not in conflict, and (2) If nevertheless provisions of a law are in conflict, a specific or a more specific provision takes precedence over a general provision, because the specific provision better indicates the intent of the Legislature that enacted this law. Section 503 and 503(a) are specific; Sections 103 and 105 are general. Thus, the immigration part of Title VII does not violate the Covenant. In fact, this part of Title VII is specifically authorized by the Covenant.

Rep. Ogumoro’s position on Sections 103 and 105 in relation to Section 2109 in the immigration reform bill is much broader than the legal arguments as discussed in the preceding paragraph. Section 103 states that “The people of the Northern Mariana Islands will have the right of local self-government and will govern themselves with respect to internal affairs in accordance with a Constitution of their own adoption.” Section 105 states in part that “In order to respect the right of self-government guaranteed by this Covenant,…the fundamental provisions of this Covenant, namely Articles I, II and III and Sections 501 and 805, may be modified only with the consent of the government of the United States and the government of the Northern Mariana Islands.”

The phrase “the people of the Northern Mariana Islands” appears a number of times in the Covenant. The issue is what is meant by the phrase “the people of the Northern Mariana Islands.” Does this phrase mean the people of Northern Mariana Islands descent (the indigenous Chamorros and Carolinians), or does it mean all the people in the CNMI, and in the case of the right to self-government, all of the legal voters in the CNMI, regardless of their ethnicity or ancestry? In her speech in the CNMI House of Representatives on Sept. 12, Rep. Ogumoro advocated the first interpretation that is stated in the previous sentence. She said that “If passed, Section 2109 of Senate Bill 744 will have a devastating effect on the Chamorros and Carolinians of Northern Marianas descent, who have always aspired to maintain their autonomy and be self-governing, a right that is guaranteed and protected under the Covenant. …They will lose control of that right to govern themselves, becoming marginalized in the process.”

There is only one right to self-government granted in the Covenant. The Covenant does not grant one right of self-government to the indigenous people in the CNMI and another right of self-government to all the other people in the CNMI.

At the time of the enactment into law of the Covenant in 1975 and 1976, the people of the CNMI were mostly indigenous Chamorros and Carolinians. Thus, in the Covenant there are at least two occurrences of the phrase “the people of the Northern Mariana Islands” that can only mean the indigenous Chamorros and Carolinians, but these two phrases refer specifically to the indigenous Chamorros and Carolinians at the time that the Covenant was signed in February 1975, not to indigenous Chamorros and Carolinians during the entire period of time that the Covenant will be in effect. These two provisions are Section 805 and Section 1001(a).

Section 805 states in part, “in view of the importance of the ownership of land for the culture and traditions of the people of the Northern Mariana Islands…” The “culture and traditions” referred to here are the culture and traditions of the people as of February 1975. The writers of the Covenant could not predict with certainty whether ownership of land would in the future remain important in the culture and traditions of the people.

Section 1001(a) states in part that “this Covenant will be submitted to the people of the Northern Mariana Islands for approval in a plebiscite to be called by the United States.” This plebiscite was held in June 1975. At this time, the voters in the plebiscite were mostly indigenous Chamorros and Carolinians, as was the population of the Northern Mariana Islands at that time.

Section 805(a) of the Covenant requires that, for 25 years after the termination of the Trusteeship Agreement, the CNMI government must “regulate the alienation of permanent and long-term interests in real property so as to restrict the acquisition of such interests to persons of Northern Mariana Islands descent.” Section 805(a) authorizes the CNMI government to continue these restrictions after the end of this 25-year period, if it so chooses. Note that in extending this right to indigenous people only, Section 805(a) used the phrase “persons of Northern Mariana Islands descent.” Section 805(a) did not use the phrase “the people of the Northern Mariana Islands.”

Furthermore, Section 805(a) is the only instance in the Covenant that uses the phrase “persons of Northern Mariana Islands descent” or similar language. This implies that, if the writers of the Covenant had intended to restrict certain rights, such as the right to self-government, to persons of Northern Mariana Islands descent only, the writers would have used such restrictive language. The fact that they did not, except in Section 805(a), indicates that they did not intend to apply such restrictions to rights, except in Section 805(a).

There are other parts of the Covenant that support this interpretation of the phrase “the people of the Northern Mariana Islands.” The Preamble of the Covenant states in part that “Whereas, the people of the Northern Mariana Islands and the people of the United States share the goals and values found in the American system of government based upon the principles of government by the consent of the governed, individual freedom and democracy.” These goals and values do not include restricting self-government or the right to vote to only persons of certain ethnicities or ancestries or national origins.

If Sections 103 and 105 guarantee the right of self-government to only the indigenous people of the CNMI, then this would mean that only indigenous people could vote in the CNMI, and only indigenous people could hold elected public offices in the CNMI. These restrictions have never appeared in the Covenant or in the CNMI Constitution, the original version of which was written in 1976 and was ratified by the people of the CNMI in 1977.

Section 501 of the Covenant lists a number of specific provisions of the U.S. Constitution that are applicable to the CNMI. One of these provisions is the Fifteenth Amendment, which forbids denying or abridging (restricting or limiting) the right to vote based on race or color. This prohibits restricting the right to vote to only persons of certain ethnicities or ancestries or national origins.

If the writers of the Covenant had intended to restrict the application of the Fifteenth Amendment so as to deny the right to vote to some or all U.S. citizens who are not indigenous persons, that is, who are not of Northern Mariana Islands descent, this would have been specifically indicated in the Covenant. There are three sections in the Covenant that provide specific exemptions to requirements in the U.S. Constitution, and in each case specifically acknowledge that these exemptions are in conflict with the Constitution. These exemptions are in Sections 203, 501, and 805.

Section 203(c) requires that “the Constitution of the Northern Mariana Islands will provide for equal representation for each of the chartered municipalities of the Northern Mariana Islands in one house of a bicameral legislature, notwithstanding other provisions of this Covenant or those provisions of the Constitution or laws of the United States applicable to the Northern Mariana Islands.” In accordance with Section 203(c), the CNMI Constitution gives to Saipan, Rota, and Tinian three seats each in the CNMI Senate, despite the fact that 90 percent of the CNMI population resides on Saipan. The U.S. Supreme Court ruled in the case of Reynolds v. Sims (1964) that the equal protection clause of the Fourteenth Amendment requires that the seats in all houses of all state legislatures must be apportioned on the basis of population. Thus, without the exemption in Section 203(c), the CNMI Senate could not be apportioned the way it is now.

Section 501 provides in part that neither trial by jury nor indictment by a grand jury are required in any civil or criminal case in CNMI courts, except where they are required by CNMI law. These are exemptions to rights in the Sixth and Seventh Amendments in the U.S. Constitution.

Section 805 contains the restrictions on the right to “permanent and long-term interests in real property” that is discussed earlier. This section includes the qualifying condition “notwithstanding the other provisions of this Covenant, or those provisions of the Constitution, treaties or laws of the United States applicable to the Northern Mariana Islands.” Without Section 805, these restrictions would violate the equal protection clause of Section 1 of the Fourteenth Amendment. Section 501 of the Covenant makes Section 1 of the Fourteenth Amendment, and other listed parts of the U. S. Constitution, applicable to the CNMI.

The Fifteenth Amendment is basic to the right to self-government. In the case of Rice v. Cayetano, 528 U.S. 495 (2000), the U.S. Supreme Court ruled that restricting the right to vote to persons of a certain ethnicity or ancestry violates the Fifteenth Amendment. In this case, Article 12 of the Constitution of the State of Hawaii allowed only “Hawaiians” to vote in elections for trustees of the Office of Hawaiian Affairs, and Hawaii law defined “Hawaiians” as persons who are descendants of the people who were living in the Hawaiian Islands in 1778. In this case, using language that seems very applicable to the assertion of the right of self-government in the CNMI to indigenous people only, the Supreme Court ruled that voting qualifications or classifications that are based on ancestry can be, and in the situation in Hawaii in this case were, “a proxy for race” (528 U.S. 514). “The State [of Hawaii], in enacting the legislation before us, has used ancestry as a racial definition and for a racial purpose” (528 U.S. 515). “Simply because a class defined by ancestry does not include all members of the race does not suffice to make the classification race neutral” (528 U.S. 516-517). “The State’s electoral restriction enacts a race-based voting qualification” (528 U.S. 517). “The State’s position rests, in the end, on the demeaning premise that citizens of a particular race are somehow more qualified than others to vote on certain matters. That reasoning attacks the central meaning of the Fifteenth Amendment. …Race cannot qualify some and disqualify others from full participation in our democracy” (528 U.S. 523). “In this case the Fifteenth Amendment invalidates the electoral qualification based on ancestry” (528 U.S. 524).

The bottom line of Resolution 18-34 is that it expresses the sentiment that “They don’t like U.S. citizens. Period.” Not even those from California or other U.S. states who are here to work, teach, or do business because they will eventually take over political control from indigenous population. And so what “if” all nonresident foreign workers and all non-indigenous citizens decided to leave? Would the 15,000 Chamorros and Carolinians be able sustain growth? Can we afford to run our economy and provide the necessary goods and services? Would we be able to attend to our healthcare needs? Would we be able to teach our children in public schools? And the list goes on and on.

In order to strike a balance in terms of protecting and invoking the Chamorros’ and Carolinians’ inalienable right to self-government as tribal people and at the same time provide for an improved status to those foreign workers who will be eligible under S.744, a proposed solution is discussed below:

We, as Chamorros and Carolinians who are NMDs, should instead be asking the U.S. Congress to designate us, Chamorros and Carolinians, as a tribal community similar to those of the American Indians. That way, we can request to have certain public lands on Saipan, Tinian, and Rota be designated exclusively under the control of NMDs. This can include the islands of Pagan, Alamagan or other Northern Islands to be made available for NMDs. And we can use our MPLT trust funds for development of these areas for the benefit of all NMDs only. We can self-govern our own without U.S. intervention and have our NMD government. We could also reap benefits afforded to the Native American Indian tribes such as being exempted from the Affordable Care Act’s individual mandate and entitlements such as the tribal educational assistance program.

The reason for Delegate Kilili’s assertion that Chamorros and Carolinians are not eligible for programs that benefit Native Americans is because he was following the advice of the U.S. Congressional Research. The U.S. Congressional Research’s advice is wrong. The Covenant already declares Chamorro and Carolinian islanders to be like the American Indians; that is why the Covenant held the lands in trust, established 25-year trust provisions, and allowed for persons to select to remain nationals but not citizens of the U.S. Those are all provisions only available where the U.S. by right of conquest over native peoples enjoyed duties as a trustee, exactly the same as with all the American Indians. As a matter of fact, the Land Grant Program that benefits the students at the Northern Marianas College was only made available under the definition of a tribal community.

In Elk v Wilkins and US ex rel Standing Bear, the Supreme Court held that Indians are people and have inalienable human rights, such as all people do, and the right of expatriation is an inalienable one, essential to the rights of liberty and self-determination. So Chamorros and Carolinians have a right to leave their nation, expatriate, and become Japanese, American, whatever, but expatriation must be knowing in order to be voluntary, and must be voluntary and consensual to be effective. The Covenant declares all persons born in the CNMI to be equally U.S. citizens. That is fine, nobody objects to Chamorros and Carolinians to be equal U.S. citizens. The problem is that the U.S. Supreme Court, with respect to the U.S. Virgin Islands’ Constitution and Native Lands Acts and the like in Rice v. Cayetano, has said that Americans citizens are all equal Americans, so equal protection means the government cannot establish a race-based or culture-based differentiated treatment of our U.S. citizens. But the Constitution says there are Indians. The Supreme Court has said that Indians are not citizens of the U.S. but are citizens of their Indian nations, and are nationals of the U.S., for whom the US owes duties of protection. That case is Elk v Wilkins. But that case recognized the right of Indians to expatriate and leave their nation. This is why the U.S. required Chamorros and Carolinians to choose under Section 302 of the Covenant whether to retain their inherent native nationality as Chamorros or Carolinians, and be national but not citizens of the U.S., and this was to be an individual personal decision decided upon by each Chamorro and Carolinian. But the U.S. forgot to tell any Chamorro or Carolinian about this, and what it meant, and that it could mean they are no longer legally Chamorro or Carolinian. Yet the Covenant also says land will be held in trust for persons of native Northern Mariana Islands descent. But the Covenant itself does not define what the term “persons of native Northern Mariana Islands descent” means, so we can argue that native Northern Mariana Islands descent could follow the parents, so that as long as one’s parents were native to the Northern Mariana Islands, the person is of native Northern Mariana Islands descent, even if born in Honolulu or Timbuktu.

If the U.S. intends that there are no longer Chamorro or Carolinian peoples as a nation solely because the people have expatriated themselves from inherent nationality under Section 302 of the Covenant, by their failure to retain inherent native nationality, we believe that the contrived knowing acts of the U.S. to deceive the native persons of the Northern Mariana Islands does in fact constitute an act of cultural genocide by the U.S. designed to exterminate the Northern Marianas Chamorros and Carolinians as tribal peoples, converting them into purportedly voluntary U.S. citizens only. The 25-year land trust provision could be seen as a temporary phasing out of aboriginal title as the native people develop their U.S. citizenship. Hence the Covenant intends to destroy the aboriginal title of the Northern Marianas Chamorros and Carolinians, and native nationality. Hence the Covenant constitutes an act of bad faith against the native peoples of the Northern Marianas, which the U.S. and U.N. have admitted to be peoples entitled to right to self-determination (hence possessed of at least inchoate sovereignty). So the Chamorros and Carolinians cannot be tricked into covenanting away their land and nation and ultimately their identity in exchange for becoming solely U.S. citizens like every other Tom, Dick and Harry, but they surely have the right to covenant away their land and nation… the right of expatriation.

What is the difference between U.S. citizens and U.S. nationals? According to Immigration Help, all U.S. citizens are U.S. nationals. But there are some who are U.S. nationals but not U.S. citizens. The definition of U.S. nationals is a person born in or having ties with “an outlying possession of the United States” which is, as of 2005, only American Samoa and Swains Island. It also includes individuals born abroad to two U.S. national parents or those born abroad to one alien parent and one U.S. national parent. Additionally, there is a residency requirement for the parents of the child prior to birth in order to transmit U.S. nationality. In the past, those who were born in Guam from 1898 to 1950, Puerto Rico from 1898 to 1917, the U.S. Virgin Islands from 1917 to 1927, or the Philippines from 1898 to 1946 were U.S. nationals. Now those who are born in Guam and Puerto Rico, and in the CNMI as of 1978 are full U.S. citizens.

The rights of U.S. nationals are as follows: They are allowed to work and reside anywhere in the U.S. without restriction. They are eligible to apply for U.S. passport just like U.S. citizens. In fact, there is no difference between the passport for U.S. nationals and U.S. citizens. Both of them mention the “nationality” USA.

And finally, we asked those who were given the vote of confidence and are privileged to hold an elected public office in the CNMI to explore this proposed solution or any other solution in order to strike a balance—protection of indigenous Chamorros’ and Carolinians’ right to self- government by invoking our inalienable right that all Chamorros and Carolinians are tribal indigenous people similar to the American Indians and, at the same time, allow the natural progression of life for those seeking improved status in the CNMI.

Just recently, during the memorial service for the late Nelson Mandela, President Obama said, “There are too many leaders who claim solidarity with Madiba’s struggle for freedom, but do not tolerate dissent from their own people. And there are too many of us who stand on the sidelines, comfortable in complacency or cynicism when our voices must be heard.”

“The questions we face today—how to promote equality and justice, to uphold freedom and human rights, to end conflict and sectarian war—do not have easy answers. But there were no easy answers in front of that child in Qunu. Nelson Mandela reminds us that it always seems impossible until it is done. South Africa shows us that is true. South Africa shows us we can change. We can choose to live in a world defined not by our differences, but by our common hopes. We can choose a world defined not by conflict, but by peace and justice and opportunity.” [I][B](Glenn H. Manglona)[/B]

Glenn H. Manglona is host of the Chamorro radio talk show, Marianas Agupa. [/I]