23 June 2016

Should settler privilege be permitted to supercede the genuine right of self-determination of the peoples of Guam?

Plan of Action for full Implementation of the Decolonization Declaration 
United Nations General Assembly Resolution 35/118
 11 December 1980


"Member States shall adopt the necessary measures to discourage or prevent the systematic influx of outside immigrants and settlers into Territories under colonial administration which disrupts the demographic composition of those Territories and may constitute a major obstacle to the genuine exercise of the right to self-determination and independence by the people of those Territories." 



I wrote yesterday about the case Tuaua v. the United States, which deals with the issue of birthright citizenship, American Samoans and whether the US Constitution automatically follows wherever the American flag is flown. This case, which was recently declined by the US Supreme Court and won't be heard this year, has been casting an anxious shadow over Guam, as it could have serious ramifications for how the Government of Guam decides to forge ahead with its plans for decolonization. 

I mentioned briefly another case that has cast an even larger shadow over the decolonization movement in Guam for the past few years and that is Davis v. The Government of Guam, which was filed by Dave Davis, who argues that the planned decolonization plebiscite and the Chamorro registry that will determine who can vote in it, violates his constitutional rights as a US citizen. The case has been going around in circles and so many have come to believe it is already over. It was initially dismissed in the local district court for not being ripe, but after appealing to the 9th Circuit Court it was reinstated and scheduled to resume sometime next month.

The case has had a paralyzing effect on the local decolonization movement, which due to lack of interest and support from political leaders, was already moving quite slowly. But political leaders have been even more unwilling to take seriously this issue, knowing that the possibility of a decision of "unconstitutionality" could be handed down soon.

Last year, while attending the UN Committee of 24 Regional Seminar in Nicaragua, I spoke about this problem:

In 2011, an ethnically white long-time resident of Guam, Arnold “Dave” Davis, filed a lawsuit claiming that the proposed decolonization plebiscite would violate his U.S. constitutional rights as he is not allowed to register for it. His lawsuit was dismissed in the courts of Guam on the basis that it was not “ripe,” as no plebiscite has been scheduled, although a Decolonization Commission is in place and is tasked with educating the island community and helping guide the plebiscite process. He appealed the decision in the Ninth Circuit District Court, a higher U.S. federal court.

Just last week, the Ninth Circuit Court announced their ruling that Davis’ case was indeed ripe and could be heard. The case so far has been, in my eyes, a twisted deformation of the arc of justice. In order to make his argument, Davis’ attorneys used the history of segregation and discrimination in the United States against the rights of the Chamorro people. They argued that Chamorros, in seeking to protect their right to self-determination, were akin to hate groups such as the Ku Klux Klan, which had historically denied certain groups the right to vote through legal or illegal means. This case has become another means of hiding the contemporary realities of U.S. colonization.

The position of Davis is something that has also been mirrored by U.S. representatives, who have also argued that a self-determination vote must follow U.S. rules. This insistence is not genuine, however. Regardless of how the decolonization vote is set, the Administering Power has long refused to recognize that this vote is binding or that the U.S. has any obligation based upon its outcome. The sympathetic ruling of the Ninth Circuit Court shows a continued commitment on behalf of the Administering Power to ignore international conventions and force this process to conform to the comforts of the colonizer’s legal mazes and fictions.

Davis will most likely resume his challenge against the self-determination plebiscite. His case continues to chill discussion, in anticipation of the time when the merits of his argument will be heard in court. In truth, the merits of Davis’ case shouldn’t matter whatsoever. A decolonization process bound to the rules of the colonizer is anathema to the hope of justice and restitution that decolonization is meant to represent. Self-determination is meant to be a sacred right that all peoples possess. Here, we see a dangerous path ahead, where it appears the U.S. is insisting that it be allowed to determine how a colonized people decolonize.