True self-determination lies in sovereignty

Editor’s Note: The following is the text of Stephen Cariño’s speech at the Attorney General Cup speech competition last May 4.

In the Commonwealth of the Northern Mariana Islands, we govern ourselves according to our Covenant and the CNMI Constitution. That is false. There exists a series of Supreme Court opinions that makes the U.S. Congress our ruler. The Insular Cases were decided over a hundred years ago in 1901. Three years before, in 1898, the United States defeated Spain in the Spanish-American War, gaining three new territories. These were Guam, Puerto Rico, and the Philippine Islands. The Insular Cases were court cases that originated in these territories, and eventually made their way to the U.S. Supreme Court. In the Insular Cases, the Supreme Court had to decide whether or not the U.S. Constitution would apply in these territories. Previously, the Constitution followed the flag. But these new territories, filled with foreign peoples and separated by ocean, seemed unfit for either self-government or statehood.

Writing the majority opinion for the 1901 insular case Downes v. Bidwell, Supreme Court Justice Edward Douglass White wrote that “those possessions are inhabited by alien races, differing from us in religion, customs, laws, methods of taxation, and modes of thought.” To the Supreme Court, this made governing the territories according to Anglo-Saxon principles impossible. So the court decided that it would be best if the U.S. Constitution did not automatically apply in these territories, even though they were controlled by the United States. Only vague fundamental rights would automatically be protected in the territories. All other provisions of the Constitution would have to be passed by Congress to take effect. That is the Insular Cases Doctrine.

However, today, some consider the Insular Cases to be very beneficial to the territories. The NYU Law Review said that the Insular Cases enable local peoples to protect their cultures and govern themselves as they desire. They say that the cases grant the territories flexibility in governing themselves. This is false. The Insular Cases grant the territories as much flexibility as a leash grants a dog, it can be tightened and pulled back at the whims of its owner, in this case, Congress. The opinions of the Insular Cases say as much. In the opinion for Downes v. Bidwell, Justice Edward Douglass White wrote that “if the conquered are a fierce, savage, and restless people, the conqueror may govern them with a tighter rein so as […] to keep them under subjection.” Today, U.S. territories may govern themselves to an extent, but Congress can at any time pass any laws to change this, thanks to the Insular Cases Doctrine. Congress has absolute power over the territories. And the territories do not have voting representation in the Congress. The Insular Cases are not concerned with our unique culture and history.

The Insular Cases also create different classes of U.S. citizens. If the Constitution only applies to some citizens and not others, that is the result. That is the point of the Insular Cases. They discriminate against Americans based on where they live in the United States. According to sitting First Circuit Judge Juan Torruella, “the Insular Cases should be soundly rejected because they [go] against the most basic precept for which this nation stands: the equality before the law of all of its citizenship.” For example, people born in the territory American Samoa are not U.S. citizens at birth, even though birthright citizenship is guaranteed by the Fourteenth Amendment in all places under the jurisdiction of the United States; this is a clear denial of constitutional rights that is only possible because of the Insular Cases.

Now, how relevant are the Insular Cases in the CNMI? We are also a territory, affected by this just like Guam and Puerto Rico, aren’t we? The Court of Appeals for the Ninth Circuit says that we are a territory under the Insular Cases, and they have decided cases affecting the CNMI using the Insular Cases to justify their opinions. This is wrong and should not be the case.

The court case Wabol v. Villacrusis, decided by the Ninth Circuit in 1990, upholds Article 12 of the CNMI Constitution, which restricts landownership in the CNMI to those of Northern Marianas descent. The court used the Insular Cases to justify their decision. The court said that the right to own land in the CNMI is not a fundamental right under the Insular Cases, so landownership restriction is okay in the CNMI. However, the Insular Cases were not needed to reach this conclusion. The Covenant and CNMI Constitution already allow Article 12, so the Insular Cases were unnecessary here. Article 12 still would be constitutional without Insular Cases. During the Covenant negotiations, the Department of Justice expressed the view that properly drawn land alienation restrictions would be valid under the United States Constitution. The Justice Department did not say that it would be valid if it met the Insular Cases doctrine, since the Insular Cases are unnecessary here. Even though the Ninth Circuit upheld the ruling of the CNMI Supreme Court, they did not have to take on this case. It only serves to corrode the sovereignty and self-government of the CNMI.

In the 1999 case Rayphand v. Sablan, also decided by the Ninth Circuit, the court decided that the composition of the Commonwealth Senate was constitutional. As with Wabol v. Villacrusis, the court largely based their decision on the Insular Cases Doctrine. Again, the Insular Cases were not necessary here because the Covenant and the CNMI Constitution do allow the CNMI Senate to be composed the way it is, with each senatorial district getting three senators. This is explained in the Section by Section Analysis of the Covenant, created in 1975 by the Marianas Political Status Commission. According to the analysis, the CNMI Senate is intended to be analogous to the U.S. Senate. The analysis makes no mention of any possible unconstitutionality of the Senate, which is telling. The Insular Cases are irrelevant and should not have been used to reach the decisions in these court cases regarding the Commonwealth.

We are not a territory of the United States, at least not a territory as described by the Insular Cases. The Insular Cases, decided in 1901, were concerned specifically with the territories that the United States acquired after the Spanish-American War, which were Guam, Puerto Rico, and the Philippine Islands. If you read the opinions of those cases, they specifically talk about territories acquired forcefully through war. The Insular Cases should only apply to such territories and not the Commonwealth because we are distinct from rest of America’s territories. The people of the NMI democratically decided to be in political union with the United States. According to the opinion in Sablan v. Inos, decided by the NMI Supreme Court in 1993, “the people of the NMI entered into the Covenant to become a self-governing commonwealth in political union with and under the sovereignty of the U.S.; they did not enter into the Covenant to become a territory or possession of the U.S.” Both the CNMI Constitution and the Covenant do not name the Commonwealth as a territory of the United States. None of the territories have a mutual consent agreement with the United States; we do. None of the territories have the right to local self-government; we do. We are an entirely different case from the territories acquired after the Spanish-American War, those territories described by the Insular Cases. The Insular Cases were only about them, not us. The Insular Cases should only apply to them, not us. These are the sentiments expressed in the decision of the 1984 case, NMI v. Atalig, decided by the Ninth Circuit: “The NMI[‘s] political status is distinct from that of unincorporated territories such as Puerto Rico. This argument is credible.”

But subsequent decisions by the federal courts argue otherwise. They still consider us to be a United States territory under the Insular Cases. As such, we are under the rule of a Congress that can at any time violate and take away our rights and self-government. Hence why the Insular Cases should not apply here, along with reasons stated earlier.

This is the Covenant, our mutual agreement with the United States defining our political relationship. It was agreed that the CNMI would have the right to self-government. The Insular Cases doctrine allows the federal government to easily violate this agreement because it gives Congress leeway to do anything they want with us. As long as it applies, our self-government can be taken away. If that happens, this agreement is nothing but trash. True self-determination then lies in sovereignty.