guam's future political status an argument for free association with u.s. citizenship

7/31/2019 Guam's Future Political Status an Argument for Free Association With U.S. Citizenship

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Guams Future Political Status: An Argument for Free Association with U.S. Citizenship

I. INTRODUCTIONII. GUAMS HISTORY AS A U.S.COLONY AND ITS QUEST FORU.S.CITIZENSHIP

A. Guams Early Days as a U.S. PossessionB. Guams Pursuit of a More Meaningful Status

III. THE RIGHTS AND PROTECTIONS OF U.S.CITIZENSHIPA. U.S. Citizenship GenerallyB. U.S. Citizens of Guam

IV. THE DOCTRINE OF INCORPORATION AND THE APPLICATION OF THE U.S.CONSTITUTION TOGUAM

V. DUAL CITIZENSHIP IN U.S.LAWVI. THE POLITICAL STATUS OF FREE ASSOCIATION

A. Free Association GenerallyB. U.S. Examples of Free Association: The Former Trust Territory

C. The Case of the U.S. Virgin IslandsD. Non-U.S. Examples of Free Association-Type Arrangements1. Cook Islands-New Zealand2. Channel Islands-United Kingdom3. Faroe Islands & Greenland-Denmark4. Dutch Affiliated Islands in the Caribbean

E. Possible Model of Guam-U.S. Free AssociationVII. CONCLUSION

I. INTRODUCTIONFor more than three hundred years, the island of Guam has been subjected to colonial ruleand denied full self-governance.

1Spain claimed Guam in 1565, and established Spanish rule in

1668.2

After the Spanish-American War, Guams centuries-long colonizer formally ceded the

island to the United States with the ratification of the Treaty of Paris in 1899.3

With theexception of a three-year period during World War II, when Japanese forces occupied Guam

(1941 to 1944), the island has since remained under the control of the United States.4

At present,

1Position Paper of the Task Force on Free Association, The Freely Associated State of Guam in Free

Association with The United States of America 1 (Mar. 31, 2000) [hereinafter Position Paper] (unpublished positionpaper, on file with the Guam Commission on Decolonization and The Asian-Pacific Law and Policy Journal).

2STANLEY K.LAUGHLIN,JR.,THE LAW OF UNITED STATES TERRITORIES AND AFFILIATED JURISDICTIONS

399 (Lawyers Cooperative Publishing 1995) [hereinafter LAW OF UNITED STATES TERRITORIES]. Guam is thesouthernmost island in the Marianas chain of islands, in western Micronesia. Id.

3Position Paper,supra note 1, at 1; LAW OF UNITED STATES TERRITORIES,supra note 2, at 36-37, 400.

4Position Paper, supra note 1, at 1; Jon M. Van Dyke et al., Self-Determination for Nonself-governing

Peoples and for Indigenous Peoples: The Cases of Guam and Hawai'i, 18 U. HAW. L. REV. 623, 626 (1996)[hereinafter Van Dyke, Self-Determination].


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Guams Future Political Status 123

this island of U.S. citizens is one of the oldest colonial dependencies in the world.5

Currently,

Guam is governed by an act of Congress, the Guam Organic Act of 1950.6

The powers given toGuam under the Organic Act, however, are merely delegated powers that can be changed or

taken away at the will of Congress.7

Guams current political status is that of an organized,unincorporated territory of the United Statesa territory that has a civil government established

by Congress but is not considered to be in transition to statehood.8

The United Sates granted itscitizenship to the native inhabitants

9of Guam with the signing of the Guam Organic Act;

however, those who received their citizenship through this Act do not receive the full protections

of the U.S. Constitution.10

Prior to Guams gubernatorial election of 1970, the President of the United States

appointed Guams Governors, without any direct input from the people of the island.11

In 1972,Guam was allowed to elect one non-voting delegate to the House of Representatives, whosefunction has been little more than to serve as an advocate for Guam with no real power to affect

legislation.12

Presently, the Department of Interior has oversight over Guams affairs, and theactions of the Governor of Guam are subject to veto by the . . . Secretary of the Interior, just as

5Van Dyke, Self-Determination,supra note 4, at 625.

6Guam Organic Act, Pub. L. No. 630, 64 Stat. 384 (codified as amended at 48 U.S.C. 1421-1425 (1950))

[hereinafter Guam Organic Act]; PENELOPE BORDALLO HOFSCHNEIDER, A CAMPAIGN FOR POLITICAL RIGHTS ONTHE ISLAND OF GUAM, 1899-1950 155 (Scott Russell ed., 2001) [hereinafter CAMPAIGN FOR POLITICAL RIGHTS].Article IV of the Constitution (the Territories Clause) empowers Congress to legislate for territories such as Guam.U.S.CONST. art. IV, 3, cl. 2;see also Charles H. Troutman, Partial Disposal Under the Territorial Clause: A MorePermanent Status for Territories 4 (July 12, 1996) [hereinafter Troutman, Partial Disposal] (on file with the GuamCommission on Decolonization, the Office of the Compiler of Laws in Guam, and The Asian-Pacific Law andPolicy Journal).

7

Troutman, Partial Disposal,supra note 6, at 4.

8CAMPAIGN FOR POLITICAL RIGHTS, supra note 6, at 155-56; Jon M. Van Dyke, The Evolving Legal

Relationships Between The United States and Its Affiliated U.S.-Flag Islands, 14 U. HAW. L. REV. 445, 449-50(1992) [hereinafter Van Dyke,Evolving Legal Relationships].

9Guam Organic Act,supra note 6. U.S. citizenship was granted to those people born in Guam and there

residing on April 11, 1899, and their descendants. Id. While this group was predominantly Chamorro, to use theterm Chamorro would be technically imprecise when discussing those whose citizenship stands to be affected shoulda status change occur. Additionally, the native inhabitants of the islands of Rota, Tinian, and Saipan are also calledChamorro. Interview with Leland Bettis, Former Executive Director, Guam Commission on Decolonization (Jan. 8,2002). See discussion infra Part III. B;see also infra nn.20 & 25.

10 Van Dyke, Self-Determination,supra note 4, at 626. See discussion infra Part III.B.

11Id. at 626.

12Van Dyke,Evolving Legal Relationships,supra note 8, at 469. Guams delegate is allowed to sit on

certain committees, can chair these committees or their subcommittees, can introduce legislation, and can vote in thecommittees or their subcommittees. [The delegate] cannot, however vote when the House meets in plenary sessionto consider final passage of legislation and budgets. Id. (emphasis in original).


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124 ASIAN-PACIFIC LAW & POLICY JOURNAL; Vol. 4, Issue 1 (Winter 2003)

local legislation may be overridden by Congress.13

Hence, despite being ruled by arepresentative democracy, the people of Guam have no meaningful representation andparticipation in the process by which the U.S. government continually makes laws and decisions

that govern their lives.14

This small island in the western Pacific has been, and continues to be, of great strategic

military importance to the United States,15

which may explain why the United States has beenreluctant to give up complete control of Guam. During World War II, Guam served as alogistical center for U.S. military operations against the Japanese homeland, thereby contributing

significantly to the end of the war in the Pacific.16

The U.S. military also used the island as themajor staging area for heavy bombing during the Korean and Vietnam Wars, as well as for

numerous subsequent military operations.17

After decades of actively seeking a voice in how their island is governed,18

the people of

Guam are still pursuing their internationally recognized right to self-determination.19

Currently,the people of Guam continue their efforts to alter their colonial status; a plebiscite for self-

determination is expected to take place in Guam in the very near future.20

13TIDES OF HISTORY: THE PACIFIC ISLANDS IN THE TWENTIETH CENTURY 387 (K.R. Howe et al. eds.,

1994) [hereinafter TIDES OF HISTORY].

14 See Van Dyke, Evolving Legal Relationships,supra note 8, at 459.

15Carl T.C. Gutierrez,An American Colony, WASH.POST, Oct. 9, 1996, at A19 [hereinafter Gutierrez,An

American Colony]. Carl T.C. Gutierrez was Governor of Guam from 1995-2003, during which time he additionallyserved as Chairperson of the Commission on Decolonization. He was also the President of the Guam ConstitutionalConvention in 1977-79. National Governors Association, http://www.nga.org/governors (last visited Feb. 10, 2003).

16Id.

17Id. When B-52s left Guam for the 33-hour round trip to unleash cruise missiles on targets in southern

Iraq on Sept. 6, they were demonstrating more than just the ability of the United States to project global force withlittle or no allied assistance. The Air Forces platform, Guam, was yet again legitimized as a vital national securityasset, while better-placed allies created no-fly-zones of their own for American military aircraft. Id.

18For further reading on Guams now-defunct pursuit of Commonwealth status, see, for example, Paul

Lansing & Peter Hipolito, Guams Quest for Commonwealth Status, 5 UCLA ASIAN PAC.AM. L.J. 1 [hereinafterLansing & Hipolito, Guams Quest]. See also Van Dyke, Self-Determination,supra note 4, at626-29.

19Declaration on the Granting of Independence to Colonial Countries and Peoples, G.A. Res. 1514, U.N.

GAOR, 15th Sess., Supp. No. 16, at 66, U.N. Doc. A/4684 (1960) [hereinafterDeclaration on the Granting of

Independence to Colonial Countries and Peoples].20

Interview with Leland Bettis, Former Executive Director, Guam Commission on Decolonization (Jan. 8,2002). A plebiscite was anticipated for November 7, 2002, with the native inhabitants taking part in the vote.However, the compilation of the Chamorro Registry (certifying those who meet the requirements of nativeinhabitants) is not complete; additionally, some residents of Guam have raised questions as to the legality of havinga native inhabitants vote (as opposed to a vote open to all residents of Guam). For some of the profferedarguments as to the difficulties of having an indigenous vote, seeLansing & Hipolito, Guams Quest,supra note 18at 4-5.


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One of Guams options for self-governance is the political status of free associationastatus recognized by the United Nations as having the elements of decolonization and full

measure of self-government.21

The primary aspect of a freely associated state is that it isinternally fully self-governing, while giving some degree of control over certain external matters

(such as defense) to another state.22

Unlike Guams current relationship with the United States,

free association status would be a voluntary relationship between two sovereign nations, theterms of which would be negotiated and agreed to by both parties.

23Because it is a consensual

relationship, either party could withdraw from the arrangement upon proper notice.24

One of the more significant terms to be negotiated is the question of what would happen

to the U.S. citizenship extended by the United States to Guam's native inhabitants and their

descendants.25

The significance of retaining U.S. citizenship lies in the security and privilegesthat such citizenship provides. Without U.S. citizenship, the people of Guam have much to lose:their U.S. passports and ensuing privileges, freedom from U.S. immigration laws, as well as

access to certain federal services and opportunities.26

This article explores the historical evolution of Guams quest for U.S. citizenship, and

examines the benefits and limitations of the citizenship and the political status eventually

granted. Additionally, it will touch on the prospects of dual citizenship in U.S. law, the politicalstatus option of free association, and ways in which the United States and other colonial nationshave addressed these issues with their dependencies and/or freely associated states. Although thecitizens of the island nations that presently have free association with the United States do nothave U.S. citizenship, their situation is distinguishable from Guams: they never had U.S.

citizenship to begin with.27

Several other states that now have a similar type of associationtheCook Islands with New Zealand, the Channel Islands with the United Kingdom, Greenland andthe Faroe Islands with Denmark, and Netherlands Antilles and Aruba with the Netherlands

have been allowed to hold the citizenship of the states with which they associate.28

Therefore,

21Position Paper,supra note 1, at 3.

22Id. at 4.

23Id. at 3-4.

24LAW OF UNITED STATES TERRITORIES,supra note 2, at 472.

25The Guam Organic Act, Sec. 4, grants citizenship to [a]ll persons born in the island of Guam who

resided in Guam on April 11, 1899, including those temporarily absent and their descendants. See Position Paper,

supra note 1, at 14-15.

26Interview with Leland Bettis, Former Executive Director, Guam Commission on Decolonization

(January 8, 2002);see also infra n.85 and accompanying text.

27 See discussion infra Part VI.B.

28 See discussion infra Part VI.D.


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should the U.S. citizens of Guam opt to freely associate with the United States, the continuation

of their individual stature as U.S. citizens is legally attainable.29

II. GUAMS HISTORY AS A U.S.COLONY AND ITS QUEST FORU.S.CITIZENSHIPA. Guams Early Days as a U.S. PossessionWith the signing of the Treaty of Paris on April 11, 1899, the United States officially

took ownership of Guam as a U.S. territory.30

The Territories Clause of Article IV of the U.S.

Constitution gives Congress plenary powers over U.S. territories.31

Congress may not onlyabrogate laws for [sic] the territories, but it may itself legislate directly for the local government.

It may make a void act of the territorial legislature valid, and a valid act void.32

In an exerciseof its plenary powers, immediately after the United States acquisition of Guam, Congress gavethe Department of Navy administrative authority over Guam, authorizing the Navy to establish a

military government there.33

From the outset, the United States promised the full measure of individual rights and

liberties to the island of Guam.34

Since the very beginning, however, the reality of Guamsexperience as a military possession stood in stark contrast to the American ideals of liberty and

democracy.35

During the time in which the Navy administered Guam, the particulars of how

29 See Dept of Justice, Section-By-Section Comments on S. 244, Feb. 5, 1991, at 23 [hereinafter Dept of

Justice] (on file with The Asian-Pacific Law and Policy Journal). In the case of Puerto Rico, Congress hasconsidered the matter of U.S. citizenship, particularly as to how citizenship would be affected if the people of PuertoRico chose the political status of independence. In its comments on S. 244, The Puerto Rico Status ReferendumAct, the Justice Department expressed concern that the bill created the impression that independence would nothave any effect on the continued United States citizenship of the residents or citizens of Puerto Rico. Id. TheJustice Department further stated their objection to allowing this possible dual (U.S. and Puerto Rican) citizenship:

While Congress has the power to allow such an arrangement, we strongly oppose allowing dual citizenship for theentire Puerto Rican population. Id. That the Justice Department concedes the possibility of Congress allowingresidents of an independentPuerto Rico to retain their status as U.S. citizens bodes well for an argument that thepeople of a free association of Guam (which would presumably have greater political and legal ties to the UnitedStates) can enjoy the same continuation of citizenship. However, the substance of the Justice Departmentscomments regarding this issue suggests that Guam may meet some of the same resistance should the time come forthe island to negotiate the terms of its free association arrangement with the United States. See generally Statementof Dick Thornburgh, Former Attorney General of the United States, to the Committee on Energy and NaturalResources, United States Senate (Feb. 7, 1991) (on file with The Asian-Pacific Law and Policy Journal).


31Van Dyke,Evolving Legal Relationships,supra note 8, at 454.

32Natl Bank v. County of Yankton, 101 U.S. 129, 133 (1880).

33 See LAW OF UNITED STATES TERRITORIES, supra note 2, at 400-1; see generally CAMPAIGN FOR

POLITICAL RIGHTS,supra note 6, at 18.

34 See TIDES OF HISTORY,supra note 13, at 112.

35Id.


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Guam was governed were left largely to the whims of whoever happened to be sitting as

Governor at the time.36

The territory was to be administered within the absolute domain of

naval authority . . . until the legislation of the United States . . . otherwise provided.37

It wasnot long before the native inhabitants of Guam described by both their American rulers andthemselves as loyal, cooperative, and patriotic to the United Statesbegan to manifest their

frustration; to them, there existed a clear dissonance between the idea of military rule and theprinciples of liberty and participation central to a civilized government, and even more so, to an

American government.38

B. Guams Pursuit of a More Meaningful StatusIn 1901, the native inhabitants of Guam formally appealed to the United States Congress

for a better political arrangement; in a letter to the U.S. Congress, Guams inhabitants beseeched

the American legislators to improve Guams system of governance.39

Another letter expressing

the desire of some islanders to obtain U.S. citizenship came a year later in 1902.40

The navalGovernor mentioned this desire in his report to the Department of Navy, noting that, when thetime came for consideration of this matter, America need not harbor concerns about Guams

loyalty to the United States.41

Over the next four decades, Guam would make similar pleas to

obtain U.S. citizenship, or at the very least, to alter Guams governmental structure.42

Even theSecretary of the Department of Navy made an appeal to Congress to establish a civil governmentin Guam, urging that the people of the island be afforded that sense of security which can onlycome from permanent laws and a form of government in harmony with that of a country to

which the island belongs.43

In 1905, the United States Senate passed a bill to grant U.S. citizenship to Guam, but the

House of Representatives took no action on the bill, and it eventually died.44

Guam was held as a

36

CAMPAIGN FORPOLITICAL RIGHTS,supra note 6, at 19.

37Id. at 18 (quoting Declaration by Secretary of the Navy & President William McKinley).

38 See generally CAMPAIGN FORPOLITICAL RIGHTS,supra note 6, at 35.

39TIDES OF HISTORY,supra note 13, at 112; CAMPAIGN FORPOLITICAL RIGHTS,supra note 6, at 47-48.


41CAMPAIGN FORPOLITICAL RIGHTS,supra note 6, at 53.

42 See generally id. at 47-103 (chronicling the numerous petitions, both formal and informal, that the nativeleaders of Guam made in seeking a more defined political status and a more stable statement and enforcement oftheir rights as a people of the island during the time preceding the signing of the Guam Organic Act).

43 Id. at 53 (quoting comments from the Secretary of the Navy to the United States Congress in 1904 that

urged Congress to establish a suitable governmental system for the island).

44TIDES OF HISTORY,supra note 13, at 112.


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military installation and its people were merely American nationals;45

civil government with

American citizenship was considered incompatible with the military presence.46

Furthermore,leaders in Washington were skeptical about granting citizenship and civil government, as theybelieved that Guams small size and lack of resources would render such a decision an

uneconomical undertaking.47

In 1917, the United States authorized the establishment of the Guam Congress, whichwas to consist of respected members of the island community appointed by the Governor.

48

These members, however, had little real powerthey were described merely as guests of the

naval Governor, serving at his pleasure.49

Additionally, the Guam Congress was not vested withany legislative authority, but rather was in place solely to offer recommendations to the

Governor on certain matters relating to the islands governance.50

Even when the Congressbecame an elected rather than appointed body in 1931, it still lacked any true legislative

powers.51

Those who served in the Guam Congress had quite different views of what role that body

should play. Although the Governor intended that the Congress discuss and advise on issuesparticularly related to how the native inhabitants could better serve the goals of the American

administration, the members used the Congress as a forum to express their desires as a people; 52they wanted to discuss not merely how to enhance agriculture, but how to define and better their

political status. This was demonstrated during the meeting of the First Guam Congress.53

At thismeeting, the Governors agenda focused mainly on economic matters, but the Congress membersnonetheless addressed the uncertainty of their islands political status and expressed their desireto end the prolonged military rule: The Chamorro people only desire . . . that their governmentbe adjusted to the principle established by the immortal Washington, liberator of the great nation

that now rules our destinies in this Island.54

45LAW OF UNITED STATES TERRITORIES,supra note 2, at 403; CAMPAIGN FORPOLITICAL RIGHTS,supra

note 6, at 143 (referencing a Dec. 22, 1948 speech by Guam Assemblyman Antonio C. Cruz).



48GOVERNOR OF GUAM,ANNUAL REPORT 35 (1917); CAMPAIGN FORPOLITICAL RIGHTS,supra note 6, at

56.49

CAMPAIGN FORPOLITICAL RIGHTS,supra note 6, at 56.

50 GOVERNOR OF GUAM,ANNUAL REPORT 35 (1917) (Its duties are to consider and recommend measures

for the improvement of the Island and the welfare of its inhabitants.); CAMPAIGN FORPOLITICAL RIGHTS, supra

note 6, at 56; LAW OF UNITED STATES TERRITORIES,supra note 2, at 403.


52CAMPAIGN FORPOLITICAL RIGHTS,supra note 6, at 56-57.

53Id. at 56.

54Id. at 58 (quoting speech delivered by Guam Congressmember Tomas Calvo Anderson during a meeting


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Despite repeated fervent appeals, the United States did not actively consider thepossibility of granting U.S. citizenship to the native inhabitants of Guam until after World WarII, a war for which many of Guams people fought and died on behalf of the United States, and

during which thousands of Guams civilians were interned and killed.55

In the logic of postwarthinking, the Chamorro people had willingly suffered and died for their proud affiliation with the

United States of America. Now that they had unquestionably proven their love for and loyalty tothe Mother Country, the indigenous inhabitants deserved the rights and privileges of American

citizenship.56

In 1946, the Department of Defense appointed the Hopkins Committee57

toprepare a study on the issue of granting U.S. citizenship to Guam:

The Hopkins Committee Report made a strong recommendation for citizenship,stating that it was long overdue especially in light of the heroic service renderedby the people of Guam to the United States during the Second World War. TheCommittee concluded that the United States not only owed Guamanians

citizenship, but also an apology for having delayed it for so long.58

In 1947, the Chief of Naval Operations granted limited legislative powers to the GuamCongress, comprised of the House of Council and the House of Assembly,

59perhaps in an effort

to quell their dissatisfaction until the U.S. Congress took action. A year later, the Ninth GuamCongress passed Concurrent Resolution No. 1, which petitioned the U.S. Congress to determine

the political status and rights of the people of Guam.60

This resolution passed the House of

Council unanimously.61

In a poignant appeal in favor of the resolution, one member of theHouse of Assembly stated:

of the First Guam Congress in 1917).

55

LAW OF UNITED STATES TERRITORIES, supra note 2, at 401-03. Japanese Imperial Forces occupiedGuam from 1941 to 1944, and the people of Guam were interned and brutalized. Id. at 401-02. Many Guamanianscarried out movements of resistance against the Japanese and for the Americans, and lost their lives as a result. Id.at 402. Civilians in Guam suffered death penalties for even minute acts of disobedience. Id. After nearly threeyears of occupation, American forces liberated Guam in July of 1944. Id.


57LAW OF UNITED STATES TERRITORIES, supra note 2, at 403-04. The Hopkins Committee was a

committee headed by Dr. Ernest M Hopkins, whose primary function it was to investigate allegations of abuse ofnaval rule in Guam and American Samoa. The Committee spent two weeks in Guam, during which time itconducted interviews and held public hearings on the issue of granting U.S. citizenship to the native people ofGuam. CAMPAIGN FORPOLITICAL RIGHTS,supra note 6, at 120.

58LAW OF UNITED STATES TERRITORIES,supra note 6, at 403-04.

59CAMPAIGN FORPOLITICAL RIGHTS,supra note 6, at 118-19, 140.

60Id. at 140.

61Id.


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We would like to be secure in our homes and free from fear and condemnation ofour property. We would like the privilege and freedom of planning our ownhome . . . of our own choice and free from dictatorial rule and one mans opinion.. . . [W]e are only nationals of the United States, with no permanent existing

rights, privileges and immunities. We are the orphans of our beloved UnitedStates. . . . We are eagerly awaiting the time when we the people of Guam willhave inalienable rights as guaranteed by the Constitution of our beloved United

States.62

The House of Assembly passed this resolution by a majority vote.63

Soon thereafter, bothhouses of the Guam Congress passed the resolution and a draft organic act, which detailed

provisions for U.S. citizenship, as well as a bill of rights, and civil government.64

While thepeople of Guam fought hard for citizenship, they regarded it merely as a means to an end, andnot an end in itself. Discussions with a visiting U.S. Congressional Committee surrounding thedraft organic act made this apparent; these discussions focused largely on the question of land

specifically, the islanders desire to obtain property rights such that their land could no longer besummarily condemned and seized by the military.

65They viewed U.S. citizenship as a way of

securing such rights.66

Finally, after Guam had languished for half a century under a government essentially

without established law, President Truman signed H.R. 7273the Guam Organic Actinto law

on August 1, 1950.67

The Organic Act extended citizenship and a Constitution-based bill of

rights to the native inhabitants of Guam.68

Furthermore, the Act declared Guam to be an

unincorporated territory of the United States.69

62Id.at143(quoting speech by Guam House of Assembly member Antonio C. Cruz during discussions on

Concurrent Resolution No.1 in 1948).

63Guam Congress, House of Assembly, Congressional Record p.16 (Dec. 22, 1948); CAMPAIGN FOR

POLITICAL RIGHTS,supra note 6, at 143.

64Guam Congress, Congressional Record, Appendix pp. 3, 36 (Mar. 5, 1949); CAMPAIGN FORPOLITICAL

RIGHTS,supra note 6, at 144.


66

Seeid. at 154-55.

67Id. at 155.

68 Providing a Civil Government for Guam, S. Rep. No. 2109 to accompany H.R. 7273, 81st Cong. 2nd

Sess. 13 (July 20, 1950); CAMPAIGN FORPOLITICAL RIGHTS,supra note 6, at 155.



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III. THE RIGHTS AND PROTECTIONS OF U.S.CITIZENSHIPA. U.S. Citizenship Generally

For the people of Guam granted U.S. citizenship by the Guam Organic Act, theircitizenship is, for the most part, similar to that of other U.S. citizens.

70Generally, U.S.

citizenship carries certain rights and obligations:

Citizenship has important legal consequences, both in domestic UnitedStates law and in international law. Apart from its capacity to be transmitted,citizenship can affect ones political rights, ones tax and military obligations, andones eligibility for certain publicly funded programs, for certain governmentjobs, and for certain occupations. Congress, the state legislatures, and the federalcourts have all helped to shape the boundaries. Most important here, United

States citizens are not subject to immigration restrictions.71

The immigration laws of the United States divide the global population into two

categories: U.S. nationals and aliens.72

With a few exceptions (mainly having to do with natives

of American Samoa and Swains Island), most U.S. nationals are also U.S. citizens.73

As a resultof this distinction, the United States can extend its protection, rights, privileges, and duties to theclass of people it calls its own, while excluding all others from these same advantages and

obligations.74

U.S. law acknowledges several ways that an individual can obtain citizenship. A person

can acquire citizenship at birth jus soli (born on United States soil) orjus sanguinis (born to a

U.S. citizen parent).75

Citizenship can also be acquired after birth through the process ofnaturalization, the procedures for which are detailed in the U.S. Immigration and Nationality Act

(INA).76

The current statute (INA 101(a)(38)) clarifies that Guam, Puerto Rico, and the U.S.

70For the differences in the rights and protections between citizenship generally and citizenship granted

through the Guam Organic Act,see discussion infra Parts IV-V.

71STEPHEN H.LEGOMSKY,IMMIGRATION AND REFUGEE LAW AND POLICY 3 (Robert C. Clark et al. eds., 2d

ed. 1997) (1992) [hereinafter IMMIGRATION LAW &POLICY].

72Id. at 2.

73

Id. Since the number of non-citizen nationals is so small, and since their rights so closely resemblethose of citizens anyway, the terms national and citizen are often used interchangeably. That practice istechnically incorrect, but the distinction is rarely important. Id.

74Id. at 3.

75Id. at 1030.

768 C.F.R. 334.11, 335; IMMIGRATION LAW &POLICY,supra note 71, at 1039.


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Virgin Islands count as United States soil for purposes of conferring citizenship jus soli.77

Although the original Constitution was silent as to who is (and who can become) a citizen of

the United States, the Fourteenth Amendment addresses this uncertainty in its first sentence:78

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are

citizens of the United States . . . .79

Statutory law has subsequently codified this constitutional

decree.80

B. U.S. Citizens of Guam

The Guam Organic Act of 1950 granted U.S. citizenship to [a]ll persons born in theisland of Guam who resided in Guam on April 11, 1899, including those temporarily absent and

their descendants.81

Primarily, this applied to the Chamorros, the native inhabitants of Guam.82

The Chamorros of Guam, therefore, did not acquire citizenship by birth or naturalization (theways addressed in the Fourteenth Amendment); rather, they acquired it by federal statute. Thishas created disparate treatment of the Chamorros in the application of the Constitution. Forinstance, because Guam is an unincorporated territory and receives only those constitutional

rights and protections deemed fundamental,83

the provisions of the Fourteenth Amendment do

apply to Guam,84

but with the notable exception of the first sentence. Thus, the U.S. citizens in

Guam are not Fourteenth-Amendment-first-sentence citizens.85

77IMMIGRATION LAW &POLICY,supra note 71, at 1032.

78Id. at 1030-31.

79U.S.CONST. amend. XIV, 1.

80

IMMIGRATION LAW & POLICY, supra note 71, at 1031 (referring to Immigration and Nationality Act301(a)).

81Guam Organic Act, supra note 9 at 1421. Although this particular provision was later repealed,

similar language appears in I.N.A. 307 (codified as U.S.C. 1407).

82Leland R. Bettis, The Roots of Guams Experience as an American Colony: Approaches to

Understanding the Rationale of a New Political Status 16 n.36 (on file with the Guam Commission onDecolonization).

83 See Van Dyke,Evolving Legal Relationships,supra note 8, at 449;see discussion infra Part IV.

84

LAW OF UNITED STATES TERRITORIES,supra note 2, at 416;see discussion infra Part IV.85

Rogers v. Bellei, 401 U.S. 815, 827 (1971). Plaintiff Bellei, born in Italy to a U.S. citizen mother, losthis U.S. citizenship conferred at birth for failure to comply with INA residential requirement. Id. at 826. The courtheld that the citizenship clause of the Fourteenth Amendment does not apply to citizenship acquired by birth abroadto a U.S. citizen parent, and that such citizenship is therefore subject to congressional actions. Id. at 827. The Courtstated: The central fact, in our weighing of the plaintiffs claim . . . is that he was born abroad. He was not born inthe United States. He was not naturalized in the United States. Id. Because the native inhabitants of Guamreceived their citizenship neither by birth in the United States nor by naturalization, but rather by federal statute,their citizenship is similarly subject to congressional action. Interview with Leland Bettis, Former Executive


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The consequence of not having this ultimate protection has significant implications whenit comes to the stability and certainty of retaining ones citizenship. Generally, the United Statescannot divest a person of citizenship absent a showing that the person committed an

expatriating act as defined by statute done voluntarily and with intent to relinquish citizenship.86

This limitation applies to those who acquired their citizenship through one of the aforementioned

means (those who have Fourteenth Amendment citizenship), but not to those wholike thenatives of Guamreceived their citizenship by statute. The Supreme Court has held that U.S.citizens have a constitutional right to retain their citizenship unless they voluntarily relinquish

it,87

but later qualified this assertion, saying that this right only applies to those who received

their citizenship by birth or naturalization in the United States.88

In sum, the native inhabitants ofGuam, because they acquired their citizenship by statute, do not have constitutionally-protected

citizenshipthey do not have a constitutional right to retain their U.S. citizenship.89

IV. THE DOCTRINE OF INCORPORATION AND THE APPLICATION OF THE U.S.CONSTITUTION TOGUAM

Which constitutional rights should be extended to the people of territories such as Guamhas been the subject of significant debate and litigation, resulting in the birth of the doctrine of

incorporation.90

The incorporation doctrine emerged from the Insular Cases of 1901, and

specifically from Justice Whites concurring opinion inDownes v. Bidwell.91

The United States

Supreme Court unanimously adopted the doctrine in 1922, in the case ofBalzac v. Porto Rico.92

This doctrine establishes that, unless a territory is incorporated (generally thought of as being onthe way to statehood), then not all provisions of the United States Constitution are applicable to

Director, Guam Commission on Decolonization (Jan. 8, 2002).

86BARRONS LAW DICTIONARY 157 (4th ed. 1996).

87Afroyim v. Rusk, 387 U.S. 253, 266 (1967). See also Dept of Justice,supra note 29, at 25.

88Rogers v. Bellei, 401 U.S. 815, 827 (1971). See also Dept of Justice,supra note 29, at 25.

89Interview with Leland Bettis, Former Executive Director, Guam Commission on Decolonization (Jan. 8,

2002). It appears from the way in which the constitutional protection of citizenship has been interpreted that thepeople from foreign countries, such as the Philippines and other Asian countries, who come to Guam to benaturalized have a protected right to their citizenship; yet, ironically, the people in Guam today who derived theircitizenship from the Guam Organic Act (the inhabitants into whose native land these others were able to cometo be naturalized), do not have such a right. This has been one of the arguments offered in favor of having only

these native inhabitants participate in the upcoming plebiscite on status change (i.e., they are the ones who havethe most at stake). This matter has resulted in passionate debate from all angles and, as of this writing, has not beenresolved. Id.

90 See Van Dyke,Evolving Legal Relationships,supra note 8, at 449.

91182 U.S. 244 (1901); Van Dyke,Evolving Legal Relationships,supra note 8, at 449.

92258 U.S. 298, 305 (1922); LAW OF UNITED STATES TERRITORIES,supra note 2, at 129.


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the territory.93

These cases proposed that only those constitutional rights found to be

fundamental would apply to unincorporated territories.94

The courts have deemed the Bill of

Rights and Amendments Thirteen, Fourteen (except the first sentence),95

and Fifteen to be

fundamental, and they are thus applicable to Guam through the Guam Organic Act.96

In 1975 the U.S. District Court for the District of Columbia established the test used to

determine inapplicability of a specific constitutional provision to territories: whether theapplication would be impractical or anomalous.

97The Ninth Circuit Court of Appeals later

followed this test in Wabol v. Villacrusis,98

a case arising out of the Commonwealth of theNorthern Mariana Islands. Since Guam falls within the Ninth Circuits jurisdiction, this test is

now binding on Guam.99

Various cases have considered the applicability of specific constitutional provisions to

Guam. The Ninth Circuit held in Sakamoto v. DutyFree Shoppers that the Commerce Clause

does not apply to Guam.100

The Ninth Circuit also held inAttorney General of Guam on Behalf

of All U.S. Citizens Residing in Guam etc. v. United States101

that the Article II provision dealing

with the selection of President of the United States102

is inapplicable to Guam.103

Additionally,

federal courts have firmly upheld the applicability of the Article IV Territories Clause104

and

Article I, Section 10, which deals with imposing duties on imports and exports by the states.105

Evident from these determinations is the reality that U.S. citizens of Guam do not stand on equalfooting with most other U.S. citizens when it comes to the rights, protections, and privileges thatU.S. citizenship affords.

93Van Dyke,Evolving Legal Relationships,supra note 8, at 449.

94Id.

95Rogers v. Bellei, 401 U.S. 815, 827 (1971).


97King v. Morton, 520 F.2d 1140, 1147 (D.C. Cir. 1975).

98958 F.2d 1450, 1462 (9th Cir. 1992).


100764 F.2d 1285, 1288 (9th Cir. 1985); LAW OF UNITED STATES TERRITORIES,supra note 2, at 416.

101738 F.2d 1017, 1019 (9th Cir. 1984).

102U.S.CONST. art. II, 1, cl. 2.


104U.S.CONST. art IV, 3, cl. 2; Duty Free Shoppers, Ltd. v. Tax Commr, 464 F. Supp. 730, 733-34 (D.

Guam 1979); LAW OF UNITED STATES TERRITORIES,supra note 2, at 416.

105U.S.CONST. art. I, 10, cl. 2; LAW OF UNITED STATES TERRITORIES,supra note 2, at 416.


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V. DUAL CITIZENSHIP IN U.S.LAWIn addition to the possibility of solely retaining U.S. citizenship, one alternative for Guam

if it opts for free association with the U.S.106

would be to create some sort of dual citizenshiparrangement, whereby Guams inhabitants could simultaneously hold the citizenship of the

United States and the freely associated state of Guam. Dual Citizenship is defined ascitizenship where two different sovereigns within their respective territorial confines may

lawfully claim citizenship of the same person and he of them.107

U.S. immigration law,

however, has traditionally disfavored dual citizenship.108

A leading U.S. treatise on immigrationlaw, for example, states that dual citizenship impairs the singleness of commitment which is the

hallmark of citizenship and allegiance.109

Nonetheless, dual citizenship/nationality does exist in

U.S. law.110

The U.S. Supreme Court inKawakita v. United States111

held that, in the dual citizenshipregime, a person does not renounce the citizenship rights of one state merely by asserting thecitizenship rights of the other state. Furthermore, a dual citizen may take an oath of allegiance. . . without losing his United States citizenship in the process, provided that such oath does not

place the person taking it in complete subjection to the state to which it is taken; the oath maynot renounce loyalty to the United States by its terms.

112Therefore, if Guam were freely

associated with the United States, its citizens would not, by definition of the status, be completely

subjected to the state of Guam.113

Indeed, any oath of Guam citizenship would not conceivablyinclude a renunciation of loyalty to the United Statesthe terms of its free associationarrangement would reaffirm the close ties that the two states would share. Guams loyalty to theUnited States is not a question. Even one hundred years ago, when the people of Guam had nocitizenship or political rights to truly bind them with the United States, their loyalty was clear.The naval Governor in 1901 stated that: When the time shall come to give consideration to this

matter [citizenship], there will be no qualifying condition arising from disloyalty . . . .114

106 See discussion infra Part VI.D.1-2 (discussing the option of free association).

107BARRONS LAW DICTIONARY 157 (4th ed. 1996).

108IMMIGRATION LAW &POLICY,supra note 71, at 1054-55.

1097-9 IMMIGR.L.&PROC. (MB) 91.01[3][d]; IMMIGRATION LAW &POLICY,supra note 71, at 1054-55.

110 See generally, IMMIGRATION LAW &POLICY,supra note 71, at 1053-55. Dual citizenship has resulted

more frequently in recent years, particularly in the immigrant-receiving countries of North America. . . . Id. at1054.

111343 U.S. 717, 724 (1952).

112David S. Gordon, Section V Civil Rights: Dual Nationality and the United States Citizen , 102 MIL.L.

REV.181, 188-89 (1983).

113 See discussion infra Part VI.B.



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More than a century later, the question is not whether Guams people should be grantedU.S. citizenship but whether they should be allowed to retain this status. Although todaysquestion may be different, the heart of the argument is still the same. Guam is an island ofAmericans. The people of Guam as a whole have been, and remain to this day, loyal to the

United States.115

Concerns of disloyalty, then, should not be an obstacle to allowing the people

of a freely associated state of Guam to retain their U.S. citizenship.The situation of the Native Americans accommodates the notion of a dual citizenship in away that suggests a similar arrangement for Guam is attainable. Native American tribes are

considered semi-sovereign.116

They are subject to the rule of their individual tribal governmentsand also, to a limited degree, to the United States governmentin many regards these tribes

elude the full reach of federal and state laws.117

Native Americans can hold citizenship of their

semi-sovereign tribes as well as U.S. citizenship.118

Although the circumstances of the NativeAmericans and those of the native inhabitants of Guam are not perfectly analogous, they havesome parallels that invite comparison. Guam is a colony, belonging to the United States bycommand of a treaty; scarcely anything about the relationship between Guam and the UnitedStates has been mutual or consensual. Now Guam faces the possibility of becoming a sovereign

state while maintaining integral, consensual links with, and delegating certain powers andauthority to, its former colonizer.

Should one of the links Guam hopes to maintain be its U.S. citizenship, the situation ofthe Native American tribes illustrates that the United States can grant it. The fact that the UnitedStates recognizes and allows a dual citizenship regime to exist for members of semi-sovereign

Native American tribes119

lends some weight to the argument that other peoples having a once-colonial relationship with the United States may also have the option of holding dual citizenstatus.

115 See, e.g., Gutierrez,An American Colony, supra note 15; LAW OF UNITED STATES TERRITORIES,supra

note 2, at 402.

116David C. Williams, The Borders of the Equal Protection Clause: Indians as Peoples, 38 UCLAL.REV.

759, 762 (1991).

117Id.

118Carole Goldberg,A Law of Their Own: Native Challenges to American Law, 25 LAW.&SOC.INQUIRY

263-64 (2000).

119 See, e.g., Mark A. Michaels, Indigenous Ethics and Alien Laws: Native Traditions and the United

States Legal System, 66 FORDHAM L.REV. 1565, 1577 (1988). In an exercise of this dual citizen status, some NativeAmerican tribes issue and travel on their own passports, such as the Iroquois Confederacy and the Hopis. Id.


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VI. THE POLITICAL STATUS OF FREE ASSOCIATIONA. Free Association Generally

The status of free association is one of three options recognized by the United Nations

as having the elements of decolonization and full measure of self-government.120 The UnitedNations recognizes the legitimacy of continued association with the former colonial power,provided that the people concerned had made a free and voluntary choice, that their culturalintegrity was respected, and that they retained the right to opt for a different status in the

future.121

It is not uncommon for small states to establish certain dependencies with other,

larger states, assigning them certain important state functions.122

Free association would allowGuam to become a separate state, but it would also enable Guam to maintain close ties with theUnited States, by giving the U.S. a determined degree of control over matters Guam is not

presently equipped to undertake, particularly defense and certain matters of foreign affairs.123

Unlike the other two options, full integration (statehood) and independence, free

association is not a pre-defined status; rather, it is defined only by the agreement for free

association itself,124 which results from fair arms-length negotiations, a relationship of equality

and voluntariness of association.125

One constitutional scholar has explained free association asfollows:

As free association has been defined in the United States context, it means thatthere are two independent states dealing with each other as such, but that bothcreate a very close association with each other . . . Certain powers, such as thepower of denial of the area to foreign powers in defense matters, has [sic] beendelegated to one party by the other . . . and the [other party] has extended a

number of benefits . . . not granted to other nations.126



122Daniel Orlow, Of Nations Small:The Small State in International Law, 9 TEMP. INTL &COMP.L.J.

115, 118 (1995).

123Position Paper, supra note 1, at 4. Guams small size and centuries-long status as a colonial

dependency would make matters such as defense an extremely difficult, if not impracticable, undertaking at thistime. See discussion infra Part VI.E.

124Peter Rosenblatt, Free Association Negotiations: A Case Study, PROCEEDINGS:CONFERENCE ON THE

FUTURE POLITICAL STATUS OF THE UNITED STATES VIRGIN ISLANDS 32-33 (Paul M. Leary ed., 1988) [hereinafterRosenblatt Presentation].

125Id.

126Troutman, Partial Disposal,supra note 6, at 8.


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In its simplest terms, free association differs from independence in that it allows Guam toachieve sovereignty, but does not altogether end the close relationship between Guam and theUnited States. Although statehood would fully incorporate Guam into the United States and givethe island the representation, rights, and protections currently extended to the fifty states, thereality of Guams small size and perceived inability to contribute meaningfully to the U.S.

economy make statehood a largely unrealistic option.

127

Proponents of free association statusargue that becoming a freely associated state is the most realistic way by which Guam can obtaindecolonization and self-government without divorcing itself from the American ideals ofgovernment and way of life to which Guam's people have become accustomed over the last

hundred years.128

B. U.S. Examples of Free Association: The Former Trust Territory

The former Trust Territory of the Pacific Islands is an example of the type of freeassociation arrangements that have been negotiated with the United States. The Trust Territoryof the Pacific was comprised of three groups of islandsthe Carolines, the Marshalls, and the

Marianas.129 A United Nations mandate granted the United States trusteeship over these islandsand their 150,000 people in 1947.

130Within the last three decades, these groups of islands have

restructured their political statuses and relationships with the United States, resulting in thecreation of the U.S. Commonwealth of the Northern Mariana Islands, the Republic of theMarshall Islands, the Federated States of Micronesia, and the Republic of Palau. Since theNorthern Mariana Islands have chosen a commonwealth relationship with the United States, they

do not have separate sovereignty.131

The Republic of the Marshall Islands,132

the Federated States

of Micronesia,133

and, most recently, the Republic of Palau,134

however, have become sovereign

127 Rosenblatt Presentation,supra note 124, at 32 (stating that it is inconceivable at present, at least as

seen from Washington, that tiny territories like the Virgin Islands could achieve statehood. Though this statementwas made in regard to the U.S. Virgin Islands, it is quite applicable to the similar situation of Guam); see alsoGutierrez,An American Colony,supra note 15.

128 See Position Paper,supra note 1, at 2.


130Id.

131 Id. at 430, 477. The CNMI Covenant establishing the U.S. Commonwealth of the Northern Mariana

Islands was signed on Feb. 15, 1975. Id.

132Marian Nash (Leich), Contemporary Practice of the United States Relating to International Law, 89

AM.J.INTL L. 96 (1995). The Compact of Free Association of the Republic of the Marshall Islands took effect onOct. 21, 1986. Id.

133Id. at 96. The Compact of Free Association of the Federated States of Micronesia took effect on Nov.

3, 1986. Id.

134Id. at 97. The Compact of Free Association of the Republic of Palau took effect on Oct.1, 1994. Id.


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states, ending their trust relationship and establishing free association with the United States.135

Through their individual compacts of free association, these sovereign nations have becomeinternally fully self-governing, but have negotiated provisions that maintain a role for the UnitedStates with regard to defense, as well as to other issues such as travel, United States residency,

and financial/economic assistance.136

Generally, these compacts of free association provide that

the United States will defend these states militarily just as it would defend its own territory andcitizens.

137To this end, the United States has the right to be consulted concerning (and can veto)

the states foreign affairs decisions. The United States can also establish military facilities, carry

out military operations, and use military force to keep others out of the area.138

The people of the Trust Territory were never U.S. citizens and therefore when negotiating

the terms of their respective free association compacts there was no issue of retaining U.S.citizenship. Their compacts of free association do provide, however, that the United States willextend certain benefits associated with citizenship to the citizens of these freely associated states.For example, in addition to receiving military security and defense, the citizens of the FederatedStates of Micronesia, the Republic of the Marshall Islands, and the Republic of Palau can travelfreely into, and within, the United States, can receive an education and work there, can join the

U.S. armed forces, can receive some social benefits, and can remain in the United States andobtain lawful permanent resident status.

139Additionally, citizens of these states can receive

protection and assistance from U.S. embassies or consular offices when traveling abroad to

countries where these states themselves do not have such offices.140

C. The Case of the U.S. Virgin Islands

The case of the U.S. Virgin Islands helps illustrate the possibility of free associationstatus for Guam. The U.S. Virgin Islands resembles Guam in both its relationship with theUnited States and its form of government. The United States purchased the U.S. Virgin Islands

from Denmark in 1917, and the residents of the island are U.S. citizens141

governed by the

135 Id. at 96. The other member of the Trust Territory, the Northern Mariana Islands, established a

covenant with the U.S. to exist in commonwealth status, remaining in political union with and under the sovereigntyof the U.S. Id. See also supra note 129 and accompanying text.

136LAW OF UNITED STATES TERRITORIES,supra note 2, at 473-74.

137Id. at 474.

138 Id. at 473. As to the U.S.s veto power over states foreign affairs decisions, these states do have the

right to an expeditious appeal to the Secretaries of State and Defense. Id.

139 Id. at 474, 477. The citizens of these states cannot, however, enter the United States to establish

residency for purposes of naturalization. Id.

140Telephone Interview with Elfrieda Koshiba, former Compact Impact Information and Education

Program Coordinator in Guam (Apr. 15, 2002).

141 See LAW OF UNITED STATES TERRITORIES, supra note 2, at 377. On February 27, 1927, the U.S.

Congress granted citizenship to residents on the U.S. Virgin Islands, making such citizenship effective as of January


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Revised Organic Act of 1954,142

essentially identical to Guams Organic Act. In 1988, theUniversity of the Virgin Islands held a conference on the future political status options of theVirgin Islands, examining the status of commonwealth, free association, statehood, and

independence.143

Former U.S. Ambassador for Micronesian Status Negotiation and formerCounsel for Guams Commission on Self-Determination, Peter Rosenblatt, participated as a

panelist at this conference. In suggesting that new negotiations are not constrained by the termsof existing status arrangements, Ambassador Rosenblatt stated: Do statehood, independence,territorial status and the US-Micronesian free association agreement exhaust all of the statusoptions? The US and Puerto Rico invented a new commonwealth bottle for old territorial wine.

The US and Micronesia created a new bottle and a new wine.144

It therefore stands to reasonthat Guams condition is also amenable to a status tailor-made to fit Guams situation. Clearly,Guams options for greater self-governance are not restricted to the arrangements already inexistence.

Marco Rigau, another expert panelist at this conference, explicitly argued that thequestion of citizenship for the Virgin Islands could be negotiated into an arrangement of free

association.145

He emphasized that there are no specific confines within which the arrangement

of free association must lie: You can have a free association with US citizenship. You can havea free association with US and Virgin Island citizenship. . . . You can have a free association in

any fashion that the United States and yourself are willing to negotiate.146

This statement ispointedly applicable to Guam, and it supports the argument that Guam should not be preventedfrom crafting a free association arrangement that includes retaining U.S citizenship.

D. Non-U.S. Examples of Free Association-Type Arrangements

Although the status of free association with U.S. citizenship has never before beennegotiated, it is not without precedent on the international scene. The following examples atonce demonstrate that free association with U.S. citizenship is a realistic option for Guam, andalso provide models for realizing such a status.

17, 1917. Id.


143 See generally PROCEEDINGS:CONFERENCE ON THE FUTURE POLITICAL STATUS OF THE UNITED STATES

VIRGIN ISLANDS (Paul M. Leary ed., 1988).144Rosenblatt Presentation,supra note 124, at 33 (emphasis added).

145Marco Rigau, Free Association as a Status Alternative for Unincorporated U.S. Territories and

Commonwealths, in PROCEEDINGS:CONFERENCE ON THE FUTURE POLITICAL STATUS OF THE UNITED STATES VIRGINISLANDS 33,38 (Paul M. Leary ed., 1988).

146Id. Presently, the U.S. Virgin Islands remain, like Guam, an unincorporated, organized territory. LAW

OF UNITED STATES TERRITORIES,supra note 2, at 377.


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1. Cook Islands-New ZealandThe relationship between the Cook Islands and New Zealand offers one example of a

successful transition from colonization to free association in which the formerly-colonized

people retained their colonial citizenship.147

This relationship deserves examination because it

marks the first time that this term [free association] applied to this sort of relationship betweentwo entities or states.148

At the time of the United Nations resolution calling for self-

determination for nonself-governing entities,149

the Cook Islands were held as a colony of New

Zealand,150

having been ceded to New Zealand by Great Britain in 1901.151

The overridingsentiment, both on the part of colonizers and the colonized, was that the Cook Islands shouldwork toward establishing a government with significant political autonomy, rather than full

integration.152

In a study on the future political status of the Cook Islands, one scholar indicated that

full political integration would not be appropriate, because of the groups geographic isolationfrom New Zealand, its lower standard of living, and the peoples relative lack of sophistication inWestern forms of politics, while also concluding that full independence was not a realistic

goal.153

Throughout discussions about their future political status, the Cook Islanders weregreatly concerned about the possibility of losing their access to New Zealand citizenship.

154In

1962, the legislative assembly had to choose among four political status options: independence,full integration with New Zealand, a federation of Polynesian countries, or free association with

New Zealand.155

Urged by the Minister for Island Territories that it would be in the best interests of the

Cook Islands people to keep the present link with New Zealand, but to have full internal self-

government,156

the legislative assembly opted to pursue such a relationship.157

In the 1964

147 See TIDES OF HISTORY,supra note 13, at 203-05.

148Paul Leary, The Historical Developments of Free Association in the Pacific and the Caribbean,

PROCEEDINGS: CONFERENCE ON THE FUTURE POLITICAL STATUS OF THE UNITED STATES VIRGIN ISLANDS 25-26(Paul M. Leary ed., 1988) [hereinafterLeary Presentation].

149Declaration on the Granting of Independence to Colonial Countries and Peoples,supra note 19.

150 See TIDES OF HISTORY,supra note 13, at 196-97.

151Leary Presentation,supra note 147, at 26.


153Id.

154Id.

155Id.

156Id. at 202-03.


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general election, the people of the Cook Islands approved the proposed status of free association

with New Zealand.158

In 1965, the Cook Islands Assembly and New Zealand Parliament gave the

status legal legitimacy by signing the Cook Islands Constitutional Amendment Act.159

With the

approval of this Act, the novel arrangement termed free association went into effect.160

Additional constitutional amendments, in 1981 and 1982, further solidified the Cook

Islands status as a sovereign nation.161

Although ambiguities have surfaced regarding thedegrees and boundaries of the special, freely associated relationship between New Zealand andthe Cook Islands, the continuation of the latters residents New Zealand citizenship is firmly

established.162

As recently as June of 2001, the two states reaffirmed this status in their JointCentenary Declaration: The people of the Cook Islands will retain New Zealand citizenship,respecting and upholding the fundamental values on which that citizenship was based. The CookIslanders and New Zealanders share a mutually acceptable standard of values in their laws and

policies . . . .163

Likewise, as a freely associated state, Guam would also hold the samemutually acceptable standard of values as the United States.

2. Channel Islands-United KingdomAnother example of free association with circumstances paralleling Guams situation is

the arrangement between the Channel Islands and the United Kingdom. Although not termed assuch, their political arrangement is conceptually similar to a free association status. Comprisedof the Bailiwicks (territories) of Jersey and Guernsey, the Channel Islands are not politically

incorporated into the United Kingdom.164

The inhabitants of the Channel Islands, however, are

British citizens, giving allegiance to the Crown.165

Although considered Crown dependencies,

Jersey and Guernsey are internally self-governing,166

essentially what Guam would seek in a freeassociation arrangement with the United States.

157

Id. at 203.

158Id.

159Id.

160Leary Presentation,supra note 148, at 26.


162Id. at 203, 205.

163 Joint Centenary Declaration of the Principles of the Relationship Between New Zealand and the CookIslands, cl. 2, available at http://www.vanuatu.usp.ac.fj/pactreaties/Treaties_etc/ NZ_Cooks_JointDec.html (lastvisited June 11, 2001).

164Don Aitken, What is The UK? Is it the same as Britain, Great Britain, or England?, athttp://www.alt-

usage-english.org/whatistheuk.html (last visited Feb. 14, 2002).

165Id.


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The Channel Islands have fashioned their own institutions of government and laws (basedon English law and local statutes) within their territories, while the United Kingdom manages

defense and foreign affairs.167

Jersey and Guernsey have their own parliament, the States

Assembly.168

A Crown-appointed Lieutenant Governor serves as both head of government and

commander of the armed forces,169

and functions primarily as a representative of the Crown.170

The Lieutenant Governor does not have the right to vote in the States Assembly, a privilegereserved for the local elected members, but does have the power to veto any of the Assemblys

decisions regarding matters within the special interest of the Queen.171

Furthermore, acts of theUnited Kingdom Parliament do not apply to the dependencies unless these dependencies

specifically say that they do.172

3. Faroe Islands & Greenland-DenmarkThe association that the Faroe Islands and Greenland have with the Kingdom of Denmark

is similar to the relationship between the Channel Islands and the United Kingdom. Neither theFaroe Islands nor Greenland is a colony of Denmark, but both are governed under the Danish

Constitution of 1953.173

Additionally, both the Faroe Islands and Greenland are consideredinternally self-governing states under the Danish Realm, holding Danish citizenship.

174They

166Id.

167Id.; CENT.INTELLIGENCE AGENCY, Guernsey, in THE WORLD FACTBOOK2001210-11(2001), available

at http://www.cia.gov/cia/publications/factbook/geos/gk.html (last visited Feb. 10, 2003) [hereinafter CIAFACTBOOK, Guernsey]; CENT. INTELLIGENCE AGENCY,Jersey, in THE WORLD FACTBOOK 2001 260 (2001),available athttp://www.cia.gov/cia/publications/factbook/geos/je.html (last visited Feb. 10, 2003) [hereinafter CIAFACTBOOK,Jersey].

168CIA FACTBOOK, Guernsey,supra note 167, at 210; CIA FACTBOOK,Jersey,supra note 167, at 260.

169CIAFACTBOOK, Guernsey,supra note 167, at 210; CIA FACTBOOK,Jersey,supra note 167, at 260.

170CIAFACTBOOK, Guernsey,supra note 167, at 210; CIA FACTBOOK,Jersey,supra note 167, at 260.

171CIAFACTBOOK, Guernsey, supra note 167, at 210; CIA FACTBOOK, Jersey, supra note 167, at 260;

Website for the States of Jersey, athttp://www.jersey.gov.uk/sections/government.htm. (last visited Feb. 12, 2003).

172Website for the States of Jersey, athttp://www.jersey.gov.uk/sections/government.htm (last visited Feb.

12, 2003).

173CENT.INTELLIGENCE AGENCY,Faroe Islands, in THE WORLD FACTBOOK2001167(2001), available at

http://www.cia.gov/cia/publications/factbook/geos/fo.html (last visited Feb. 10, 2003) [hereinafter CIA FACTBOOK,Faroe Islands]; CENT.INTELLIGENCE AGENCY, Greenland, in THE WORLD FACTBOOK2001200(2001), available athttp://www.cia.gov/cia/publications/factbook/geos/gl.html (last visited Feb. 10, 2003) [hereinafter CIAFACTBOOK,Greenland].

174Report Submitted by Denmark, Article 3: Information on the Populations of the Faroe Islands and

Greenland, at http://www.humanrights.coe.int/Minorities/Eng/FrameworkConvention/StateReports/1999/denmark/Article_3.htm (last visited Feb. 12, 2003) [hereinafter Denmark Report].


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have a parliamentary democracy under a constitutional monarchy.175

The Faroe Islands havebeen politically connected with Denmark for centuries, and achieved self-government with theHome Rule Act of 1948; Greenland attained self-government through the Home Rule Act of

1978.176

Considered self-governing overseas administrative division[s] of Denmark, the Faroes

and Greenland have the Queen of Denmark (represented by an appointed High Commissioner) astheir chief of state.

177Legislatively, each has a popularly elected parliament, which in turn elects

the Prime Minister.178

Denmark is fully responsible for matters of defense for the Faroes and

Greenland, and provides certain economic subsidies as well.179

4. Dutch Affiliated Islands in the CaribbeanIn addition to the above examples, the Dutch-affiliated islands in the Caribbean offer yet

another model that may be instructive for Guam. The relationship between these islands and theNetherlands provides another example of the type of relationships that larger colonial nationshave arranged with smaller island nations. The Netherlands Antilles, for instance, is part of the

Kingdom of the Netherlands.180

It became fully self-governing over internal matters in 1954, butthe Dutch government maintains control over defense and foreign affairs.

181Aruba, which was

part of the Netherlands Antilles until 1986, is now a separate member of the Kingdom of the

Netherlands.182

It too is internally autonomous, but yields responsibility for defense and foreign

affairs to the Dutch government.183

The political arrangement that the Netherlands Antilles and

175CIA FACTBOOK, Faroe Islands,supra note 173, at 167; CIA WORLD FACTBOOK, Greenland,supra note

173, at 200.

176 Denmark Report,supra note 174.

177CIA FACTBOOK, Faroe Islands,supra note 173, at 167; CIA FACTBOOK, Greenland,supra note 173, at

200.178

CIA FACTBOOK, Faroe Islands,supra note 173, at 167; CIA WORLD FACTBOOK, Greenland,supra note173, at 200.

179CIA FACTBOOK, Faroe Islands,supra note 173, at 168; CIA WORLD FACTBOOK, Greenland,supra note

173, at 201.

180CENT. INTELLIGENCE AGENCY, Netherlands Antilles, in THE WORLD FACTBOOK 2001 363 (2001),

available athttp://www.cia.gov/cia/publications/factbook/ geos/nt.html (last visited Feb. 10, 2003) [hereinafter CIA

FACTBOOK,Netherlands Antilles].

181Id.

182CENT. INTELLIGENCE AGENCY, Aruba, in THE WORLD FACTBOOK 2001 26 (2001), available at

http://www.cia.gov/cia/publications/factbook/geos/aa.html (last visited Feb. 10, 2003) [hereinafter CIAFACTBOOK,Aruba].

183Id.


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Aruba have with the Netherlands is nearly identical to that of the Danish dependencies.184

TheQueen of the Netherlands is chief of state, and is represented locally by an appointed Governor

General.185

Additionally, each has a unicameral legislature elected by the people, and a Prime

Minister and Deputy Prime Minister elected by the legislative body.186

Residents of these island

entities may hold Dutch citizenship.187

E. Possible Model of Guam-U.S. Free Association

Similar to the aforementioned examples, a freely associated state of Guam couldnegotiate to give the United States authority over all matters of defense and access to the islandfor military purposes, while assuming full authority over its internal government. These mattersof defense and military access could be placed solely under the purview of the United Statesaccording to the negotiated terms of a compact for free association. To this end, Guam couldagree not to enter into any arrangements with any state if such an agreement affects foreignpolicy in a manner potentially adverse to the U.S. interests of defense and military access. In

return for this prized military use of the island, Guam could retain eligibility for United Statesservices and assistance (such as the postal service, civil aviation safety services, emergency

management agency programs, and some social benefit programs),188

and could retain U.S.citizenship.

Because free association is accepted internationally as a form of decolonization,189

afreely associated state of Guam could gain access to membership in regional organizations suchas the Pacific Islands Development Program and the South Pacific Regional Environmental

Program, which Guam currently cannot join as a nonself-governing entity.190

Guam would alsobe able to control, exploit, and manage the resources in its 200 nautical mile exclusive economiczone (EEZ), which would finally give Guam jurisdiction to manage the use of all living andnonliving natural resources of the seabed, subsoil, tidelands, and adjacent territorial waters in

accordance with international law.191

When negotiating free association status, Guam may also

184 Id.; compare CIA FACTBOOK, Faroe Islands, supra note 173, at 167; CIA WORLD FACTBOOK,

Greenland,supra note 173, at 200.185

CIAFACTBOOK,Netherlands Antilles,supra note 180, at 363; CIAFACTBOOK,Aruba,supra note 182,at 27.

186CIAFACTBOOK,Netherlands Antilles,supra note 180, at 363; CIAFACTBOOK,Aruba,supra note 182,

at 27. For examples of international organizations of which the aforementioned island-nations are members, seeinfra note 191.

187Id. at 27.



190Position Paper,supra note 1, at 13-14.


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consider allowing the United States to continue representing Guam in the United Nations (andnot becoming a member state itself), while representing itself in certain U.N. sub-organizations

and other regional organizations.192

In addition, Guam could enter into trade agreements with other Asia-Pacific states, which

could have great potential for enhancing Guams economy. Guams economic and political

association with the US, as a free association, would continue to attract foreign investment andopportunities with its over $3 billion economy, the largest in the Pacific island community.

193

Certainly, doors to economic opportunities would open for Guam as a freely associated state inways that Guams current political status prevents. Moreover, since the United States wouldretain its use of Guam for military purposes, it will not lose what it has always valued most about

Guamits strategic military importance.194

Given the possible benefits of the status, freeassociation has the potential to evolve into a mutually beneficial arrangement for the UnitedStates and the U.S. citizens of Guam.

VII. CONCLUSION[G]eographic isolation, lower standard of living, lack of sophistication in Western

politicsthese words were used to describe the Cook Islands and their people as an argument

against full political integration of the Islands into New Zealand.195

In spite of this unflatteringperception that their colonizer had of them (whether true or not), the fact remains that the CookIslanders were not stripped of their access to New Zealand citizenship when they chose freeassociation with New Zealand.

191Id. at 6.

192With this, Guam would have first-hand involvement and control in the organizations that most greatly

and directly impact its interests, while deferring to the United States on broader or less immediate matters. Some ofthe other island-nations previously discussedhave crafted similar arrangements. Aruba, the Netherlands Antilles,and the Cook Islands, for instance, are not individually represented as member states of the United Nations, but areeither associate members or members of the sub-organization United Nations Educational, Scientific, and CulturalOrganization (UNESCO) as well as other confederations and organizations outside of the U.N. CIA FACTBOOK,

Aruba, supra note 182, at 27; Netherlands Antilles, supra note 180, at 363; Cook Islands, at 120, available athttp://www.cia.gov/cia/ publications/factbook/geos/cw.html (last visited Feb. 10, 2003). Aruba and the NetherlandsAntilles, in addition to being associate members of UNESCO, are also represented in organizations such as theWorld Confederation of Labour (WCL) and as observers in the Caribbean Community (Caricom). CIA FACTBOOK,

Aruba,supra note 182, at 27;Netherlands Antilles,supra note 180, at 363. The Cook Islands have representation inthe African, Caribbean, and Pacific Group of States (ACP), the Food and Agriculture Organization of the UnitedNations (FAO), Secretariat of the Pacific Community (SPC), and the Organization for the Prohibition of ChemicalWeapons (OPCW). CIA FACTBOOK, Cook Islands, at 120. Similarly, allowing the U.S. continued representation of

Guam in the U.N. but taking charge of its own representation elsewhere may be a possible option for Guam innegotiating the terms of the association.


194Gutierrez,An American Colony,supra note 15.

195TIDES OF HISTORY,supra note 13, at 202;see also discussion supra Part VI.D.1.


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Although Guam could have once been described as having a low standard of living and

lacking sophistication in Western politics,196

that is hardly the case today. Now, Guam has the

highest standard of living and the largest economy in its region,197

despite its inherentencumbrances (limited economic assets, small size, etc.). Today, with the few resources it has

been allowed to use, the small island of Guam and its 140,000198

inhabitants boast a gross island

product of more than $3 billion, with even greater potential for the future . . . .199

And as for thenative inhabitants of Guam, even with their distinct cultural traditions, they overwhelminglyview themselves as American; they are accustomed to no other way of government than the

Western, American way.200

It is incongruous to argue that the people of Guam must be strippedof their U.S. citizenship merely for taking action towards bettering their status and improvingtheir relationship with the United Statesa country whose ways have, after a century of

association, become very much their own.201

The Territories Clause of the Constitution, which essentially gives Congress the powers

to dispose of U.S. territories in any way it sees fit, arguably also gives Congress the implicitpower to partially dispose of its authority over the territory of Guamneither granting it

statehood, nor cutting it off entirely.202

It is conceivable and possible to have a freely associated

state of Guam in which the United States disposes of its authority to govern Guam internally andrepresent it in regional associations that affect Guams interests directly, while maintainingauthority to govern matters of defense and related matters of foreign affairs. It is alsoconceivable and possible to allow the Americans of Guam to achieve a self-governing status infree association with the United States without taking away their U.S. citizenship.

Although none of the international examples of associations discussed above is withoutits drawbacks, each of them serves as a model of what is possible for Guam. Each of themprovides for an arrangement by which the island-states involved are able to enjoy self-government without being denied the support, protection, and citizenship of their (former)Mother Countries. Each of the cited examples is an arrangement crafted specifically around thenature and experience of the historical relationship of the parties involved.

196CAMPAIGN FORPOLITICAL RIGHTS,supra note 6, at 36-37 (quoting the 1904 Annual Report by Guams

Naval Governor to the Dept of Navy, describing the Chamorros as poor, ignorant, and very dirty in their habits).197

Position Paper,supra note 1, at 11.

198The estimated population of Guam as of July, 2001, is roughly 158,000. CENT.INTELLIGENCE AGENCY,

Guam, in THE WORLD FACTBOOK 2001 205 (2001), available at http://www.cia.gov/cia/publications/factbook/geos/gq.html (last visited Feb. 10, 2003).

199Gutierrez,An American Colony,supra note 15.

200 See generally LAW OF UNITED STATES TERRITORIES,supra note 2, at 402 (stating that the net effect of

the World War II experience was to strengthen the ties of the Guamanians with the United States. From that pointon most Guamanians looked upon themselves as patriotic Americans.); Gutierrez,An American Colony,supra note15 (stating that [s]ince the dawn of the relationship between the United States and Guam, the Chamorro peoplehave sought the application of American principles of civil rights and democracy.)

201Position Paper,supra note 1, at 5-6.

202Troutman, Partial Disposal,supra note 6, at 6.


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Guam has its own experience and historical relationship with the United States. It iswithin the framework of that experience and relationship that Guams arrangement for freeassociation should be crafted. Indeed, U.S. citizenshipand the fifty-year quest to obtain thatstatushas been an integral part of Guams history and experience. It therefore can and shouldbe a significant part of any future relationship with the United States.

Hannah M.T. Gutierrez203

203Class of 2003, University of Hawai`i, William S. Richardson School of Law.

guam's future political status an argument for free association with u.s. citizenship

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