An earlier version of this paper was published in “Caribbean Perspectives, scholarly journal of the Eastern Caribbean Centre of the University of the Virgin Islands, January 2009.
by Dr. Carlyle G. Corbin
International Advisor on Governance
I. The Historical Context
From the middle to the late 19th century, the Caribbean was governed by a host of European colonial powers which exerted virtual total influence on the evolution of the political status and identity of small islands in the region. The Caribbean possessions were divided, either as prizes won from the spoils of war, or as territorial acquisitions for strategic considerations, irrespective of the views the inhabitants of the islands. The extraordinary political division of the island of Sint Maarten/St. Martin, along with its proximity to the island of Anguilla proved particularly fatuous given the resulting emergence of three non-independent jurisdictions under three separate European states with largely incompatible administrative structures, conducting commerce in three separate currencies and communicating in three different official languages - with a combined population of under 100,000 persons. (1) The division of the Virgin Islands into separate British and U.S. possessions is another example of artificial political constructs in a region where the diversity in political identity is unparralled within such a small geographic space.
Emerging from this process were island enclaves controlled by a variety of European states. The British, the Dutch, the French, the Spanish, the Danish, and later the Americans, bought and sold islands based on economic and other strategic considerations, with little regard for the majority of the people who were overwhelmingly of African descent. This practice produced a proliferation of externally-controlled island dependencies by the end of the 19th century, and the colonial governance arrangements became increasingly sophisticated throughout the 20th Century and into the 21st.
After the 1960 adoption by the United Nations (U.N.) General Assembly of the landmark Decolonisation Declaration (2), and its companion resolution defining full self-government (3), many of the dependencies of the region achieved a full measure of self-government through political independence, or via free association or integration with another country. Decolonisation effectively stalled at the beginning of the 1990’s owing to diminished attention paid to the process in the international euphoria following the end of the Cold War (4). Almost two decades into the 21st Century, six territories administered by the UK and one by the US are formally listed by the U.N. as non self-governing (5). The one U.S. commonwealth and two Dutch associated countries are arguably more autonomous governance models, and were formally removed from UN oversight by General Assembly resolution. The three overseas departments of France are self-governing through political integration and the exercise of full political rights within the French Republic.
II. Governance in the Non-Independent Caribbean
For the dependencies under U.K. administration - in particular, the Turks and Caicos Islands, Cayman Islands, Montserrat, British Virgin Islands, Anguilla and to a lesser extent Bermuda, there is a “direct role by the cosmopole in the daily governing process via the reserved and other constitutional powers set aside for the U.K.-appointed governor in such areas as external affairs, internal security, and the civil service. The governor’s powers to annul, and to decline to assent to legislation adopted by the elected legislative body of the territory, is also noted. The additional authority of the governor to impose legislation unilaterally on the territory without the consent and often against the will of the elected government (6) has been termed in the U.K. House of Commons as the “nuclear option.” Collectively, these constitutionally-granted powers to an un-elected official from the cosmopole is illustrative of a continued democratic deficit in the U.K.-administered territories.
A more indirect approach characterises the U.S. governance of Puerto Rico and the U.S. Virgin Islands. Since the advent of the elected governorship in both territories replacing the appointed governor, direct executive power from Washington became less evident, save for U.S. jurisdiction over land and marine resources, administrative control of the territorial borders and increasing hands-on management in other areas. From a legislative perspective, Puerto Rico and the U.S. Virgin Islands which are appurtenant to, but not part of the U.S., are governed by the territorial clause of the U.S. Constitution which gives the U.S. Congress plenary authority to unilaterally apply U.S. laws (7). Both territories have active non-voting delegates to the U.S. House of Representatives, with no provision for representation in the U.S. Senate, and no vote in U.S. presidential elections. This compares with the absence of representation of any kind in the U.K. House of Commons for the U.K.–administered territories in the Caribbean.
On the other hand, the self-governing countries of Aruba and the five-island grouping of the Netherlands Antilles, in association with the Kingdom of the Netherlands, combine relative autonomous powers with aspects of political integration, e.g. shared citizenship (8). This is similar to the constitutional arrangement between Greenland and the Faroe Islands vis a vis the Kingdom of Denmark. Both Dutch and Danish dependency models are characterised by voting representation in the parliaments of the Netherlands and Denmark, respectively, coupled with the exercise of effective autonomy. As noted, the French overseas departments of Guadeloupe (and its dependencies), Martinique, and French Guiana enjoy full political integration synonymous with the integrated island state of Hawaii.
III. Distinctions and Perceptions of Political Identity
Political identity in the non-independent Caribbean is greatly influenced by the distinctions between dependence and associated governance. For the dependent territories, such rights are governed by several considerations. The extent to which the elected government can legislate cultural and political identity is a primary factor, and is determined by the degree of autonomy of the prevailing constitutional arrangement. Clearly, the U.K. territories have more constitutional flexibility in this area, as they were never regarded as “part of the U.K.”
In this context, significant variation exists between the U.K. and U.S. dependency models, which contrasts with the exercise of autonomous power in the Caribbean jurisdictions associated with the Kingdom of the Netherlands. Regarding the U.K. dependency model, Bourne asserts that:
“There was never confusion concerning the differing status of those British citizens who settled in the colonies and their descendants on one hand, and the people of the territory on the other (9). ”
These distinctions were understood even after the adoption in 2002 of the British Overseas Territories Act, amending the British Nationality Act of 1981, which changed the nomenclature from British dependent territories citizenship to overseas territories citizenship, while simultaneously conferring British citizenship on the people of the UK-administered territories (10). The limits on the rights granted with the conferred citizenship were made abundantly clear by the Parliamentary Under-Secretary of State in 2001 during the second reading of the legislation in the House of Commons, in which he stated:
“The(British Overseas Territories) Bill is about nationality. British citizenship (to be extended) carries with it the right of abode in the United Kingdom and the right of free movement in Europe, but (does not offer) other rights and obligations, including the right to preferential rates for tertiary education, health and social security benefits and the vote in UK parliamentary elections…” (11)
Dependency governance in the U.S. territories, on the other hand, reflects concepts of territorial “ownership.” (12) Both models are contrasted with the freely-associated political status models of the Netherlands Antilles and Aruban which acknowledge a distinct political and cultural identity of the islands different than that of the Dutch Kingdom.
Another consideration with respect to the dependent territories is very much a matter of self-perception in relation to the interplay between cultural/national identity and citizenship, coupled with the diversity of national origin of the population. In the British territories, the perception of cultural and political identity is understood in an island-specific, ‘nationalist’ context, e.g. a person is ‘Bermudian’ or ‘Anguillan,’ as opposed to being ‘British.’ This is well-defined in the respective constitutions and territorial laws discussed later. This contrasts with the U.S. Virgin Islands where public expressions often mistakenly equate identity with U.S. citizenship. Increasingly, ‘Virgin Islanders’ are defined as ‘African-Americans,’ perhaps initially for ease of reference in federal funding categories, but later acquiring a broader usage. However, the mere combination of cultural descent with citizenship in this manner is mis-guided, since the category is intended for a different set of African-descendent people who went through a specific historical and cultural experience in the continental U.S.
Perspectives on cultural and political identity in the dependent territories are also influenced by demographics. In the U.K. dependencies, there are significant numbers of Caribbean nationals who exercise fundamental rights, but maintain political rights only through their country of origin, except in the cases where long-term residency has led to naturalization. Further, the work permit programmes governing the residency of the non-naturalised Caribbean nationals in the U.K. territories is often governed by territorial ‘turnover laws’ requiring the person to return to their country of origin after a defined period, with varying degrees of privilege to return. Degrees of social dislocation can result from this practice, particularly as related to school-age students who may have been born in the dependent territory but enjoy only the full citizenship of their parents. This contrasts with the immediate grant of U.S. citizenship under U.S. law for children born in the U.S. territories and who can also claim the citizenship of their parents.
For the U.S. territories, Puerto Rico with a population exceeding 4 million has had little need historically for additional labour, notwithstanding the large Dominican Republic community which is integral to economic sustainability. For the U.S. Virgin Islands, the need for additional labour to build and service a fast-growing tourism industry in the wake of the U.S. travel embargo on Cuba resulted in significant population growth through immigration from the wider region. Leibowitz indicated that the numbers reached 34,000 between 1960 - 1970, exceeding the entire 1960 population of the territory. (13) The temporary worker system which had been legislated by the U.S. Congress pursuant to U.S. immigration laws facilitated the movement of mainly African descendents from other parts of the Caribbean to the U.S. Virgin Islands to meet growing labour needs. Concerned with the projected financial impact of the extension of public services to the new residents, the U.S. Virgin Islands legislature sought to use its local authority to regulate access to education, housing and other areas. This was later overturned by the U.S. courts and applicability of U.S. equal protection laws. A specific U.S. immigration measure enacted in 1981 also provided for a process of achieving permanent residency status in the territory, and ultimately U.S. citizenship.
This comparison in the migration of people to the U.K. and U.S. territories does not suggest favour of one system over the other, since many people experienced significant violation of their worker’s rights under both systems in relation to externally-owned development projects and establishments. The main objective here is to portray how the development of the two respective dependency models went on to impact the advancement of political and cultural identity. Accordingly, in both the U.K. and U.S. dependencies, a diverse population evolved which included migration from the wider region.
In this regard, the U.S. Central Intelligence Agency in its 1988 Factbook defined the population of the territory as “74 per cent West Indian (including) 45 per cent born in the (U.S.) Virgin Islands and 29 per cent born elsewhere in the West Indies.” This assessment, perhaps inadvertently, served to confirm the existence of a collective cultural Caribbean identity among the predominately African descendents in the territory. It has been hypothesized that the migrants from the wider Caribbean who came to the U.S. Virgin Islands in the 1960’s might have been the descendents of those Africans who escaped slavery in the Danish West Indies for freedom in the British controlled Caribbean in the preceding century. A genealogical study is not attempted here. The main point is that a unified Caribbean dynamic was a potential basis of a modern paradigm of cultural - and by extension - political identity in the U.S. Virgin Islands, encompassing the prevailing demographic reality. However, the logical extension of such a force might have been a process of natural political evolution that would have been inconsistent with the legitimisation, and subsequent modernisation of dependency governance.
Within this framework, four constitutional conventions in the U.S. Virgin Islands were held between 1964 and 1980. Quite apart from the mandate to create/re-create structures of government through a local constitution to replace the U.S. Revised Organic Act of 1954 was the task of defining/re-defining a political and cultural identity amid changing demographics. The territory’s political status commission of the 1990s had also struggled with similar issues which contributed to a lack of conclusive result in the 1993 status referendum. The Fifth Constitutional Convention, to its significant credit, was undergoing serious analysis of these issues at the end of 2008 into 2009 despite the confines of the existing dependency relationship, even as the exercise was not designed to tackle the fundamental question of political status.
IV. Political and Cultural Identity in Dependency Constitutions
The prevailing constitutions of the U.K. territories in the Caribbean have always acknowledged a separate political identity of the people of the territory vis a vis that of the metropole. This was an important feature of the most recent constitutional review processes underway or completed in five of the six territories (excluding Bermuda) pursuant to the 1999 U.K. Government’s White Paper on Partnership for Progress and Prosperity. In this connection, the British Virgin Islands Constitutional Commissioners in their 2005 recommendations on ‘modernising’ the territory’s constitution addressed a number of relevant issues including the fine-tuning of the “belonger status” and the “preservation of numerical pre-dominance, heritage and culture of indigenous people,” (14) reflective of an ‘island specific nationalist’ focus cited earlier. The Virgin Islands Constitutional Order 2007 ultimately issued by the U.K. reflected much of this thinking.
Accordingly, the first paragraph of the preamble of the new constitution recognised that “… the people of the territory of the (British) Virgin Islands have over centuries evolved with a distinct cultural identity which is the essence of a Virgin Islander.” The preamble also “recall(ed) that because of historical, economic and other reasons many of the people of the Virgin Islands reside elsewhere but have and continue to have an ancestral connection and bond with those Islands.” The new constitution which entered into force in 2007 detailed the criteria for a person who “belongs” to the British Virgin Islands, primarily based on birth or descent, and extends the right to hold elective office in the House of Assembly to this population. (15) A later provision of the preamble “affirm(ed) that the people of the (British) Virgin Islands have generally expressed their desire…to exercise the highest degree of control over the affairs of their country…” This self-recognition of the territory as a country distinct from the U.K. confirms the recognition by the people of a separate political uniqueness, that is, the distinction between their collective political identity and whatever citizenship may be conferred upon them (or subsequently removed) by external legislation. Such recognition of identity is reflected in most constitutions of U.K. territories in the Caribbean, and differs from prevailing views in the U.S. Virgin Islands. On this point, Bourne observed in 2005 that:
“at present, the people of most non self-governing territories other than the U.S. Virgin Islands see their identity as separate from that of their administering power… (while) what we hear in the U.S. Virgin Islands are efforts to accomplish a change to political integration, such as obtaining the presidential vote, being treated as a state with respect to benefit programs, etc., without having a clear analysis of what our present status entitles us to and the overall effect of such political changes.” (16)
In the case of Puerto Rico, a strong political and cultural identity is protected by the insulating predominance of the Spanish language, coupled with a population size far exceeding any other island dependency and large reinforcing diaspora. The complexities of the Puerto Rican ethos significantly influence the territory’s political discourse, while maintaining the unifying thread of cultural identity. This is largely shared by the Puerto Rican people irrespective of their views on a permanent political status achievable through U.S. statehood, free association or integration (17); or on maintaining the accommodation with what Boden describes as “voluntary colonialism with the promise of a completely new form of metropolitan/colony relationship.” (18)
With the control of the executive and legislative branches of the Puerto Rico Government shifting to the pro-integrationist New Progressive Party in January 2009, exertions of distinct political identity typical of the pro-autonomous Popular Democratic Party through active international organisation representation among other manifestations could be reversed if previous changes of power from the autonomous to the integrationist parties are any indication. Regardless of the change in political status preference with the incoming ruling party, however, provisions of the Puerto Rico Constitution maintain important manifestations of identity, in particular the primacy of the Spanish language and the recognition of a Puerto Rican citizenship as a requirement for serving in the Legislative Assembly. (19) Neither can be “wiped away so easily.”
In the Turks and Caicos, the new 2006 constitution confirms belonger status as a manifestation of cultural identity, and as a fundamental criteria for election to the House of Assembly (20), and voter eligibility, without providing further elaboration on the definition as is the case in the 2007 constitution of the British Virgin Islands (21) and in the 1990 amendment to the Anguilla Constitutional Order of 1982 (22). The 2008 Anguillan proposal to the U.K. for full internal self-government is further illustration of a strong collective political identity.
Montserrat and the Cayman Islands continue to proceed in reviewing and recommending changes to their existing constitutions with emphasis on the transfer of varying degrees of power from the un-elected governor to the democratically-elected governments. This reflects the evolution of heightened political maturity in both territories and an “island-centric” approach in the case of the Cayman Islands, as compared to a more regional orientation for Montserrat, whose request to join the Caribbean Single Market and Economy (CSME) has been blocked by the U.K.
Both the prevailing 1990 Anguilla constitution and the new 2007 British Virgin Islands constitution reaffirm cultural identity through defining “belonger” status explicit in their document for the purpose of identification, and by extension, as a qualification to hold elective office. Further, the British Virgin Islands and the Turks and Caicos Islands sought and obtained additional administrative authority in their new constitutions as a confirmation of a strong political identity separate from the metropole. This is evident in the active participation of all six U.K. territories as associate or full members in the Caribbean Community (CARICOM) and its myriad of associated bodies, and in the Organisation of Eastern Caribbean States (OECS).
In the U.K. territories, such engagement in regional affairs is usually sustained even following a change of government since ideological distinctions between political parties are narrow, and the recognition of the importance of regional engagement virtually universal. This contrasts with Puerto Rico where the ideological divide among integrationist, autonomist and independence political forces has formed the very basis of political party allegiances for decades. In the US Virgin Islands, the development of a collective political identity through similar international organisation participation had actually exceeded that of Puerto Rico for significant periods during the last quarter century, but has appears unsustainable, largely based on conflicting U.S. policy which isolates U.S. territories from the same regional institutions in which the U.K. territories enjoy membership. This strategy of isolation based on overly strict constitutional interpretations serves to reinforce dependency governance.
For the Cayman Islands, the 1972 Constitution, amended on five occasions through 2003, recognises a “Caymanian Status” for eligibility to be elected as a member of the Legislative Assembly with ancestral ties to the territory either by birth or through at least one parent (23), and for qualifying as an elector (24). Regarding Montserrat, the House of Assembly in its 2002 Report of the Committee of the Whole approved a number of recommendations of its Constitutional Commissioners which had called for a strengthened political identity. In this connection, the Committee approved, inter alia, the recommendations that regional affairs and international finance be placed within the competence of the elected government, that legislative members should be required to swear an oath to the people of Montserrat, that a free association arrangement should be pursued, and that nativity should be a criteria for citizenship.
Bermuda, unlike the other U.K. territories in the Atlantic/Caribbean which proceeded with post-1999 formal reviews of their individual constitutions, did not participate in the review process as it already has an advanced constitution (short of free association, given the maintenance of the governor’s reserved powers), with any further constitutional advancement recognised as a move to independence (where the governor’s powers would no longer apply). In that connection, the Bermuda Independence Commission was created in 2004 to assess the implications of an independent Bermuda, the ultimate expression of collective political identity. The exhaustive report of the commission made a series of recommendations to advance a public dialogue and engage the business sector on the changes that would be brought about through independence, to clarify post independence citizenship issues, and to review all international opportunities.
As the process of dialogue continues, the existent 1968 constitution (25) as amended most recently in 2003, provides similar expressions cultural identity as contained in other U.K. constitutions, including the recognition of a Bermudian status similar in scope to the belonger status of other U.K. territories. The strong political identity of Bermuda is manifest in the advanced powers the territory exercises, and to which many of the other territories aspire.
V. Political and Cultural Identity in Caribbean Autonomous Countries
As earlier cited, the very nature of the autonomy inherent in a political association arrangement provides for a high degree of political identity, as confirmed by international law and principles (26). This is clear in the 1954 Charter of the Kingdom of the Netherlands, as amended, which sets forth the equality of the countries of Holland, the Netherlands Antilles and Aruba (27). In this connection, the Charter provides for each of the three countries to “conduct their internal interests autonomously, and their common interests on a basis of equality.” Generally, the Kingdom maintains control over defence, foreign relations and nationality, with the option to exercise financial control through ‘higher supervision’ in the event of extraordinary circumstances necessitating a temporary assumption of financial control by the Kingdom government (28).
The autonomous Antilles model also provides for aspects of political integration as detailed in the Kingdom Charter, with membership in the Dutch Council of Ministers set aside for the Ministers Plenipotentiary of the Netherlands Antilles and Aruba, respectively (29). Further representation is provided for in the Dutch Council of State in relation to the capacity to influence decisions on the applicability of Kingdom laws and regulations. There are also mechanisms for mutual consent precluding the applicability of certain Kingdom laws, as well as international and financial agreements. On regional and international participation, the Kingdom generally supports the membership of participation of the Netherlands Antilles as a matter of course.
In the context of cultural identity, as in the case of Puerto Rico, linguistic autonomy plays a major part in the expression of cultural identity in specific islands. The indigenous language of Papimentu predominates in Curacao, Bonaire and Aruba, and in 2007 was made one of the official languages in the Netherlands Antilles.
In the wake of the acquisition of separate country status (status aparte) of Aruba in 1986, a series of referenda were held in the remaining five islands on the political future of the Netherlands Antilles, resulting in the initiation of discussions to dismantle the five-island associated country. Both Curacao and Sint Maarten chose ‘separate country’ status, and after intense negotiations - under significant pressure with debt relief hanging in the balance - agreements were made for the two jurisdictions to gain the new status, albeit with significant reduction in autonomy presently held by the five-island grouping before the dismantlement scheduled for October of 2010.
The islands of Bonaire, Saba and St. Eustatius chose what was characterised as ‘direct ties’ with the Dutch Kingdom. That status, however, turned out to be a form of partial integrated overseas provincial status (‘public entities’). As such, the Kingdom Government is set to replace local administrative power, in extenso, with the final parameters still being finalised at the beginning of 2010. Bonaire, on the other hand, had a different understanding of “direct ties,” which did not mean ‘partial integration.’ They have scheduled a new referendum in March, 2010 with the internationally recognised political status option of free association along with the now-revealed ‘public entity’ status on the ballot.
It was reported in the Bonaire media that the United Nations had (curiously) termed as ‘problematic’ the residency period for voter eligibility in the upcoming referendum, arguing that it would exclude some Dutch citizens from participation. The question, of course, is whether this would be a referendum for the people of Bonaire, or for the Dutch citizens in Bonaire. International law confirms the right of people, in an act of self-determination, to determine specific eligibility criteria.
Conclusion
It should be emphasized that issues of identity in the non-independent Caribbean are multidimensional, and fundamentally linked to variables such as the nature of the prevailing political status and its prospects for evolution, the size and national origin of the population and cultural manifestations such as language, heritage and other traditions. These remain considerable factors in the evolution of identity in the countries of the non-independent Caribbean, and can often serve to divert attention from the development of a unified national ethos.
Caribbean regional integration initiatives such as the Caribbean Single Market and Economy (CSME), as well as the Eastern Caribbean - Trinidad and Tobago unity discussions, for example, are important to the reaffirmation/reinforcement of a Caribbean commonality. Should such processes which promote a unified Caribbean identity be embraced or rejected, in full or in part, by the dependencies and associated states which comprise the non-independent Caribbean? Conversely, should they pursue a direction towards reinforcement of the present dependency-cosmopolitan dynamic which would continue to influence an emergence of an alter ego? What are the implications of either approach given the changing global dynamic precipitated by fundamental shifts in the world economy, planetary implications of the failure to achieve a binding treaty on climate change, and the scramble for access to what’s left of the natural resources of the planet by those states which regard their colonial/associated political relationships with non-independent Caribbean countries as a foothold for the extension of exclusive economic zones? Contemporary international relations in the 21st Century must factor in the dynamic of the non-independent Caribbean in all of its manifestations as decisions on constitutional reform will most certainly have an impact on the cultural and political identity of this component of the Caribbean region.
Notes
1) Corbin, Carlyle. 2006. Decolonisation and Self-Government of Curacao. pp.5-6. A paper presented at the University of the Netherlands Antilles by Dr. Carlyle Corbin, Curacao, Netherlands Antilles, 1st June 2006.
2) U.N. General Assembly Resolution 1514 (XV), December 14, 1960.
3) U.N. General Assembly Resolution 1541 (XV), December 15, 1960.
4) Corbin, Carlyle. (1997). A Plan of Action for the Self-Determination of the Remaining Non Self-Governing Territories. A paper delivered to the United Nations Caribbean Regional Seminar, Antigua and Barbuda. pp. 1-3.
5)Report of the United Nations Special Committee on Decolonisation for 2008, Official Records, U.N. General Assembly (A/63/23) 30th June 2008; pp. 1-2.
6) United Nations General Assembly Resolution 62/118. 17 December 2007.
7) United States Constitution, Article IV, Section 3(2).
8) Igarashi, Masahiro. 2002. Associated Statehood in International Law. The Hague, London, New York: Kluwer Law International. pp. 62-65.
9) Bourne, Judith. (2005). The Ambiguity of our U.S. Citizenship. A Paper delivered at a forum of the Virgin Islands Humanities Council, St. John, Virgin Islands. p.3.
10) British Overseas Territories Act. (2002). Section 3.
11) Speech by Parliamentary Under-Secretary of State Ben Bradshaw. Second reading of the Overseas Territories Bill. House of Commons. London, 22 November 2001.
12) 7 op. cit.
13) Leibowitz, Arnold H.(1989). Defining Status: a Comprehensive Analysis of United States Territorial Relations. Dordrecht, The Netherlands: Martinus Nijhoff Publishers. pp. 278-284.
14) Report of the Constitutional Commission (2005). Government of the Virgin Islands. Recommendations 16-32.
15) The Virgin Islands Constitutional Order 2007. Section 2(2)( a) – (h) and Section 65 (1) – (4).
16) 9 op. cit. p. 3.
17) Report by the President’s Task Force on Puerto Rico’s Status. (2005). P. 10.
18) Boden, Roy J.A. (2007). The Cayman Islands in Transition. Kingston, Jamaica: Ian Randle. pp. 39-40.
19) Constitution of the Commonwealth of Puerto Rico. Article III, Section 5. (1952).
20) The Turks and Caicos Islands Constitutional Order 2006. Section 44(c).
21) 18 op. cit. Section 49 (1)(b)(iii).
22) Anguilla Constitutional (Amendment) Order 1990. Section 25.
23) Cayman Islands (Constitution) Order 1972. Article 18(1) (a), and Article 18 (2) (b).
24) 21 op. cit. Article 25 (b).
25) Bermuda Constitutional Order 1968.
26) 3 op. cit. Annex
27) Documents on International Relations in the Caribbean, University of the West Indies and University of Puerto Rico. (1970)
28) The Netherlands Antilles is comprised of Curacao, Bonaire, Saba, St. Eustatius and Sint Maarten. Aruba attained separate status aparte in 1986 as the third country in the Kingdom, filling the vacancy left by the independence of Suriname.
29) Charter of the Kingdom of the Netherlands (1954 as amended). Article 7.
31 January 2010
29 January 2010
The Native Papers - Part III
This is Part III of "The Native Papers" written by Virgin Islands historian Gerard Emanuel. Part I dealt with the Historical and Legal Bases for the Definition of a Native Virgin Islander. Part II addressed the right to self-determination.
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PART III. The Native Virgin Islander - An Endangered Species
by Gerard M. Emanuel
Native Virgin Islanders residing in the Virgin Islands, particularly on St. John, are an endangered species. The last census indicated that they are now a minority. (See U.S. Census records.) The U.S. has all kinds of laws to protect endangered life forms such as the Bald Eagle, turtles, eggs, pandas, buffalo, certain lobsters, fish and plants. Here in the V.I. we have laws to protect turtles, eggs, sand, coral reefs, mangroves, Mahogany Trees and native lizards. For the latter, efforts have even been made to reduce if not eliminate their predators. Many of us do not seem to have a problem when plants and animals are singled out for special treatment from others in their populations, because they are endangered. If this is true, I am curious as to why some persons consider it unfairly discriminatory and “un-American” to similarly single out from others in the local population, a group that the federal government’s official records indicate has been diminishing with each census count. Moreover, research from the University of the Virgin Islands (UVI) Eastern Caribbean Center (ECC) confirmed this fact when it conclusively showed that V.I. women have been getting a smaller number of children each time a count was done between 1970 and 2005. (See Research News from UVI/ECC, Dec. 2007, Vol. 1, Issue1, pp.1-4).
How could it be acceptable to be so concerned about preserving animals and plants and unacceptable to be similarly concerned about preserving a people, when solid data over the past 35 years clearly shows that Native Virgin Islanders are also disappearing? If I get a truthful answer to this question, I will be surprised. Unlike other life forms, a people possess an ethos. This can be defined as their guiding beliefs, fundamental values, thought processes, etc., that distinguish them from other groups. Ethos can also be defined as the distinctive spirit of a people or an era. Native Virgin Islanders had a distinct set of traits, which secured their survival up until the mid 1960’s. At that time, the population started to grow more from in-migration than from births. A population that was 26,000 in 1950 and 74% native, grew to almost 50,000 in 1965, and dropped to 44% native. While the native population only grew from 19,600 to 22,000, the number of non-citizen immigrants, went from 1,000 in 1950, which was 4% of the population, to 2,000 ten years later.
However, this segment of the population mushroomed by 500% from 2,000 to 10,000 in only five years (1960 to 1965), and became 20% of the population. I do not know of any other place as small as the V.I. that had such a great increase in its immigrant population in such a short period of time, without undergoing massive social, infrastructural and other problems. In fact, a court case was necessary at the end of the 1960’s to allow non-citizen children to attend public schools, partially because officials were concerned about the impact the tremendous increase in students would have on the school system. (See Hosier v. Evans, 1970)
In the mid 1960’s, for the first time in the 20th century, Native Virgin Islanders became a minority in their homeland. There were other impacts, some positive and some negative, of the demographic changes of the 1960’s. The V.I. experienced an economic boom like it has never seen either before or since. The government had surpluses in many of those years. Construction boomed. Tourist arrivals and spending increased. Real estate sales grew exponentially. Virgin Islanders grew a large “middle class”. Healthcare improved. Roads improved, etc. However, in spite of all these gains, Virgin Islanders lost their home. What had been primarily a home to natives, now was transformed (in less than one quarter of a generation), into an American playground and a place where the majority of people, were immigrants. Many of these persons had come to these islands principally for economic gain. Their contributions were invaluable to the economic boom of the 1960’s. Most natives in hindsight are thankful for their presence. Nevertheless, only a minority of immigrants seemed genuinely interested in unifying with all of the people, and developing a sense of community or nationalism. The rest were too busy making money, much of which was sent out of these islands as remittances.
Because of the ill treatment many had received by some natives, and by the federal government, former immigrants created benevolent associations. These organizations provided assistance not only to resident immigrants who were mistreated, but also to their relatives “back home” whether home meant the mainland U.S., the Caribbean or other parts of the world.
Now one might assume that natives led a large, well organized, discriminatory movement similar to what occurred by the Ku Klux Klan and other racists mostly in the southern United States. Such was not the case. In fact, immigrants who were “bonded”, left for the U.S. when they were not supposed to and natives who had sponsored them or loaned them money, experienced losses.
As the 1960’s, came to an end, the traditional ethos of Virgin Islanders changed as well. Many persons went from being community oriented and other-directed, (living in the “big yard”, or in “long-row” homes, where a matriarch was always home to exert discipline on the wayward), to being experts in the ethic of individualism and materialism. Virgin Islanders lost the practice of the village raising the child as an essential facet of social discipline and control in their culture. It has been said over and over, (and I can personally attest to this), that when you walked on the street, regardless of whether it was on St. John, St. Thomas or St. Croix before the mid ‘60’s, there seemed to be a network of matriarchs watching you like “big brother”. If you did anything wrong or did not properly greet them when you passed their home or business, your parents were informed before you returned. Corporal punishment was swift and without any questions being asked. This was because there existed a great sense of trust that Virgin Islanders had in the integrity of these matriarchs. All who lived in a particular community were like an extended family, whether related by blood or not. If a matriarch did not know your first name, she definitely knew “to whom you belonged”, and could identify you as Miss ___’s child.
This means of social control reduced crime and kept communities together. Almost all of this and more of the pre 1960’s ethos were lost by the 1970’s. The new ethos of many Virgin Islanders mimicked aspects of North American culture that were invading their homeland and thrown in their faces daily. The tourism demonstration effect, the impact of television and other media, particularly from the United States, eroded the old and swept in this new ethos. Natives became preoccupied with trying to get the “Almighty Dollar” in order to engage in “conspicuous consumption”, and “keep up with the Jones’s”. They attempted to get every new product they saw on television. They seemed to forget the values that had preserved and protected them as a unified and proud people with a distinct culture, when they were poorer. Now they adopted some of the best but more of the worst characteristics of American culture, and the cultural complexion of the Virgin Islands experienced a face and body lift.
Today, natives are still trying to adjust and cope with the staggering results of this mammoth demographic increase along with the shift in their status from majority to minority and the adoption of a North American value system. Some of the other negative results of these changes were double-sessions in public schools, increased water shortages, electrical outages, greater impact on health and social services, roads, housing, increased crime, and the terrible treatment of immigrants from other Caribbean islands.
Our brothers and sisters from the rest of the Caribbean became the scapegoat for almost everything that was wrong in these islands, and were unfairly discriminated against as an unjustifiable reaction to their increasing numbers and the decreasing number of natives. Some Virgin Islanders felt threatened, became somewhat xenophobic but did not unite to protect and preserve their interests.
The above paragraphs may seem like a digression, but one cannot understand present day V.I. society without knowing, understanding and respecting the difference between pre and post 1960’s V.I. society and the impact of those massive changes from the perspective of natives. In the 1970’s and 1980’s, some natives began again to migrate to the U.S. Their presence in the population continued to dwindle and their culture and traditions started to disappear. All might have been lost had it not been for a few tradition bearers, who in spite of overwhelming odds, fought to preserve what semblance of pre-1960 culture they could remember. Every time a group of native people becomes extinct for whatever reason, all of the things, which they can contribute to the rich diversity of the human family, are lost.
The essence of this issue is first knowing and second accepting the existence of an endangered group of “people of” the Virgin Islands. The third part of this is respect. Once persons not only can do these things, but also see the value in doing so, then they can hopefully see the need for protection and preservation of this group in order that the “distinguishing character, and guiding beliefs” of this group and its culture, will survive and be promoted here in their homeland. You cannot say you want to preserve the culture and traditions of a people and not simultaneously acknowledge and respect the people as a distinct entity that also needs to be preserved. How can you have classical or traditional V.I. culture without the people from whom it emanated? This is the heart of the matter. To this end, laws have to be enacted in the constitution, and policies have to be implemented.
Native Virgin Islanders, who know and ground their research-based opinions in the knowledge and practice of their own ethos first and in the history of the U.S. and its relationships with territories second, have been called racist and un-American. This is what foments the unnecessary divisiveness. Supporting the preservation of native rights should not be divisive. This has to be even more important than doing the same when it comes to animals, plants and geographic areas. Areas that require special protection are called APC’s. A people who require the same consideration are called endangered natives. In other parts of the world, when natives start to disappear, special laws are enacted for their preservation. Instead of name-calling, let us work together to achieve mutual understanding and consensus in a way that respects all of our rights.
It has appeared from the discussions on talk shows and in editorials, that consensus means acknowledging and protecting the rights of every one but the native. Every time natives start to talk about their rights, they are brow-beaten by others, who sometimes understand neither them nor their history of oppression, colonization and current need to exercise self-determination without interference. Virgin Islanders must have the right to choose who will be invited to make important decisions along with them. This should be done at a minimum. If any group’s rights are to be accorded priority in the Virgin Islands, especially when it comes to respect and protection, it has to be the rights of the natives. How can the rights of the indigenes of a place be less important than those of immigrants, whether they are foreigners or U.S. citizens? In societies where native rights are ignored, the natives become extinct or are severely marginalized in every way in their own home. What comes to mind is the story of the camel that requested to be able to put a foot in a man’s tent to protect it from the cold. The man, being kind in nature agreed, but as the night wore on, the camel kept on asking for more and more space. The man gave in until the camel eventually took over the tent and the man to whom the tent was home, found himself placed out in the cold. This man must have been a Native Virgin Islander, because part of the pre-1960 ethos of Virgin Islanders, involved treating others better than they treated themselves.
This story is very relevant to the Native Virgin Islander dilemma. As such, it is time for Natives to learn from the painful lessons of their history. Some persons who come here act like the camel. They get upset when natives tell them that they do not have the same right to exercise decisions of self-determination and self-government here as much as the native does. In some instances, these persons even feel that they have more rights. Since they came from America, which owns these islands as property, and since they have “their 14th amendment” American citizenship, these persons may feel that these facts give them as much or even more right to be here than the native, since natives are not 14th amendment citizens, and are merely part of the property that the U.S. owns. None of them will ever put it in such stark terms. They will couch their views and justifications in all kinds of euphemisms such as freedom, democracy, 14th amendment equal protection rights and protections, etc. As discussed in a previous article, when viewed from the perspective of our colonizers, especially regarding citizenship, they are right. However, when viewed from the perspective of natives, which makes these matters questions of self-determination and self-government, they are wrong. We must be able to come to some sensible compromise on these issues where the rights of everyone are respected, but with priority accorded to the historical context of oppression and colonialism experienced by the natives. This hopefully can be done without persons getting upset. However, we must not be afraid of emotions as long as they are guided by reason.
From the perspective of the United States, Virgin Islanders and their homeland are viewed constitutionally as mere property that it owns. I thought that the slave trade had ended 200 years ago, and that slavery in these islands ended in 1848. I probably am wrong, but I cannot see myself being overjoyed with being considered as property. Recently, Virgin Islanders observed the 90th anniversary of the “sale of these islands and their people” to the U.S. Yes we have made much progress under U.S. rule, but none of it was willingly granted. Our foremothers and fathers had to struggle and endure many trials and tribulations to eke out what semblance of “self-government” exists here. (If you have the delusion that we have true self-government, simply examine Section 8 of the Revised Organic Act of 1954, or review the history of unilateral changes that the U.S. has made to laws and regulations here. in order to become disillusioned. Sometimes these changes have adversely affected the people of these islands). The most recent examples were the changes that affected the EDC beneficiaries and the restrictions on fishing. This may be why the source of U.S. governmental authority over this territory, even after 90 years of U.S. colonial rule, still is the pejorative Territorial Clause of the U.S. Constitution, which gives Congress full control over territory and property. (A careful reading of this clause will reveal that “Territory” means property). (See the citation below.)
“ The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States (...)”
Why isn’t Congressional authority over the V.I. located under Article I, where most of the powers of Congress are outlined? The same occurs with the District Courts. Authority over them comes from Article IV, instead of Article III. The difference is degrading in terms of independence, salary and tenure for District Court judges here. Therefore, Virgin Islanders are treated as property, and their sustained right to U.S. citizenship at birth may be tenuous at best. Remember Supreme Court Justice Brown said that unincorporated territories like the V.I. are “appurtenant to, but not a part of the United States…”. Sometimes natives feel that their friends and officials from the U.S. mainland act as though Virgin Islanders really are personal property just as a dog or a cat are the personal property of their owners. If this is the mentality of the persons who criticize natives for wanting to be treated as free humans, then I understand their reasoning, even though I totally disagree with it.
Being American does not have to mean what Arthur Schlesinger meant by it in “The Disuniting of America”. He wanted it to mean that all persons were to melt into some pot and lose the cultural distinctiveness they brought to this country. His analysis of the dangers of focusing too much on our racial and ethnic differences as retarding national unity, however, is accurate and very relevant to the V.I. situation. His melting pot concept only was applicable when America was considered to be a “white” country, where only Caucasians were the de-facto authentic citizens. Non-whites could never hope to “melt” in Mr. Schlesinger’s racial and ethnic pot. Their physical characteristics would always stand out and make them visually distinct from the majority of the Caucasian population. Thus, only the whites had the option legitimately “melting” into the pot.
Some persons still think that this is how America is supposed to be. However, it is not. Just like this cannot happen in the Virgin Islands, the time for this definition of being American has gone and has now evolved to mean subscribing to the ethos of the founding fathers with one key distinction. We the people must now mean all of the people. Being American today is like being part of a tossed salad. The new paradigm in the Virgin Islands just as in the U.S. must now be that all cultural groups are invited here, and while retaining elements of their cultural distinctiveness, they also need to subscribe to, respect and identify with the cultural traditions of Virgin Islanders. This may just be the win-win answer to unity in the Virgin Islands. This “tossed salad” concept is more nutritious and respectful than the melting pot). Food that has been melted has been denatured, and most of the essential live-giving properties have been destroyed. If the pot itself melts, whatever is in it will be poisoned. Is this what we want for our peoples and cultures? A tossed salad retains all of the life-giving properties of its constituent parts, while making a whole. However, the lettuce, which provides the foundation, is the main ingredient. The natives, their history, traditions and aspirations are the lettuce in the Virgin Islands’ tossed salad society. You do not have an authentic, traditional tossed salad without lettuce as the base.
Possibly, due to their belief in the assimilative or American melting pot theory, some of our friends do not even want to acknowledge the existence of the native people of the Virgin Islands, who have a distinct ethos that is rapidly disappearing. All they see is “America” and the American ethos here. They see little value in preserving Johnny cake and maufe. Believe it or not, I partially agree. It is not only the physical manifestations of a culture and a people that constitute their ethos. It is principally their values, the basis for them and the left and right brain processes they used to produce the excellent material products of their culture, notwithstanding the limitations imposed upon them by slavery and colonization. Probably the greatest aspect of our culture, is the way we think and solve problems, which is also inextricably intertwined with our language and other important non-material aspects of our culture. The physical manifestations could change, but when the non-material intellectual and spiritual ones disappear, the culture begins to decay and eventually may become extinct.
Anyhow, as far as some mainland V.I. residents are concerned, Virgin Islanders should be viewed as a monolithic group of assimilated Americans living here. Other than a few superficial expressions of our traditions, here should become a carbon copy of “downtown” America. Students of history like me should deny their education, forget this divisive, discriminatory foolishness about ethos and native rights, and simply just get along.
Get along according to whose definitions, worldview, ethos and most importantly, whose interests? Even in my former labor union, the charter members have more privileges than the members who came after; regardless of how long they serve in the union, how many strikes they have endured, etc. Special consideration is always given to those pioneers who endured the rigors of forming an organization. They are able to attend all functions freely and are recognized for their ground-breaking work. Why can’t the persons who are not the charter members of V.I. society, or their descendants understand and accept this principle?
One thing that the 1960’s taught conscious Africans living in this part of the world is that in order to survive, you must clearly unite, organize, define yourself and your interests for yourself, based on the specific context provided by your worldview, history, culture and other circumstances. As Professor Janice Hale of Clark University once wrote, “The power to define is the power to destroy.” You then need to find likeminded persons to help in the attainment of these interests. I wonder how many of us would even consider telling a Jew to forget his history, especially the holocaust and simply try to get along with the descendants of Nazis since they might be ideologically against what their forefathers promoted under Hitler? If the holocaust of Jews, which entitled them to receive reparations can be respected, why can’t the hundreds of years of African holocausts similarly be recognized, respected and the descendants similarly compensated by ensuring their ability to not only survive, but also succeed and prosper in their homeland? Who is betraying a racial motive now? Until this kind of respect and sensitivity for the people of the Virgin Islands as an endangered group with a distinct and dying ethos, is shown, there can be no hope for consensus and unity.
As one enlightened African philosopher has said, you cannot have peace without justice. Justice is a pre-condition and must include the recognition of the existence of the Native Virgin Islander as a group that should be protected and preserved at all cost. When this is done, then and only then can we collaborate and pursue peaceful coexistence.
_______________________________________________________________________________
PART III. The Native Virgin Islander - An Endangered Species
by Gerard M. Emanuel
Native Virgin Islanders residing in the Virgin Islands, particularly on St. John, are an endangered species. The last census indicated that they are now a minority. (See U.S. Census records.) The U.S. has all kinds of laws to protect endangered life forms such as the Bald Eagle, turtles, eggs, pandas, buffalo, certain lobsters, fish and plants. Here in the V.I. we have laws to protect turtles, eggs, sand, coral reefs, mangroves, Mahogany Trees and native lizards. For the latter, efforts have even been made to reduce if not eliminate their predators. Many of us do not seem to have a problem when plants and animals are singled out for special treatment from others in their populations, because they are endangered. If this is true, I am curious as to why some persons consider it unfairly discriminatory and “un-American” to similarly single out from others in the local population, a group that the federal government’s official records indicate has been diminishing with each census count. Moreover, research from the University of the Virgin Islands (UVI) Eastern Caribbean Center (ECC) confirmed this fact when it conclusively showed that V.I. women have been getting a smaller number of children each time a count was done between 1970 and 2005. (See Research News from UVI/ECC, Dec. 2007, Vol. 1, Issue1, pp.1-4).
How could it be acceptable to be so concerned about preserving animals and plants and unacceptable to be similarly concerned about preserving a people, when solid data over the past 35 years clearly shows that Native Virgin Islanders are also disappearing? If I get a truthful answer to this question, I will be surprised. Unlike other life forms, a people possess an ethos. This can be defined as their guiding beliefs, fundamental values, thought processes, etc., that distinguish them from other groups. Ethos can also be defined as the distinctive spirit of a people or an era. Native Virgin Islanders had a distinct set of traits, which secured their survival up until the mid 1960’s. At that time, the population started to grow more from in-migration than from births. A population that was 26,000 in 1950 and 74% native, grew to almost 50,000 in 1965, and dropped to 44% native. While the native population only grew from 19,600 to 22,000, the number of non-citizen immigrants, went from 1,000 in 1950, which was 4% of the population, to 2,000 ten years later.
However, this segment of the population mushroomed by 500% from 2,000 to 10,000 in only five years (1960 to 1965), and became 20% of the population. I do not know of any other place as small as the V.I. that had such a great increase in its immigrant population in such a short period of time, without undergoing massive social, infrastructural and other problems. In fact, a court case was necessary at the end of the 1960’s to allow non-citizen children to attend public schools, partially because officials were concerned about the impact the tremendous increase in students would have on the school system. (See Hosier v. Evans, 1970)
In the mid 1960’s, for the first time in the 20th century, Native Virgin Islanders became a minority in their homeland. There were other impacts, some positive and some negative, of the demographic changes of the 1960’s. The V.I. experienced an economic boom like it has never seen either before or since. The government had surpluses in many of those years. Construction boomed. Tourist arrivals and spending increased. Real estate sales grew exponentially. Virgin Islanders grew a large “middle class”. Healthcare improved. Roads improved, etc. However, in spite of all these gains, Virgin Islanders lost their home. What had been primarily a home to natives, now was transformed (in less than one quarter of a generation), into an American playground and a place where the majority of people, were immigrants. Many of these persons had come to these islands principally for economic gain. Their contributions were invaluable to the economic boom of the 1960’s. Most natives in hindsight are thankful for their presence. Nevertheless, only a minority of immigrants seemed genuinely interested in unifying with all of the people, and developing a sense of community or nationalism. The rest were too busy making money, much of which was sent out of these islands as remittances.
Because of the ill treatment many had received by some natives, and by the federal government, former immigrants created benevolent associations. These organizations provided assistance not only to resident immigrants who were mistreated, but also to their relatives “back home” whether home meant the mainland U.S., the Caribbean or other parts of the world.
Now one might assume that natives led a large, well organized, discriminatory movement similar to what occurred by the Ku Klux Klan and other racists mostly in the southern United States. Such was not the case. In fact, immigrants who were “bonded”, left for the U.S. when they were not supposed to and natives who had sponsored them or loaned them money, experienced losses.
As the 1960’s, came to an end, the traditional ethos of Virgin Islanders changed as well. Many persons went from being community oriented and other-directed, (living in the “big yard”, or in “long-row” homes, where a matriarch was always home to exert discipline on the wayward), to being experts in the ethic of individualism and materialism. Virgin Islanders lost the practice of the village raising the child as an essential facet of social discipline and control in their culture. It has been said over and over, (and I can personally attest to this), that when you walked on the street, regardless of whether it was on St. John, St. Thomas or St. Croix before the mid ‘60’s, there seemed to be a network of matriarchs watching you like “big brother”. If you did anything wrong or did not properly greet them when you passed their home or business, your parents were informed before you returned. Corporal punishment was swift and without any questions being asked. This was because there existed a great sense of trust that Virgin Islanders had in the integrity of these matriarchs. All who lived in a particular community were like an extended family, whether related by blood or not. If a matriarch did not know your first name, she definitely knew “to whom you belonged”, and could identify you as Miss ___’s child.
This means of social control reduced crime and kept communities together. Almost all of this and more of the pre 1960’s ethos were lost by the 1970’s. The new ethos of many Virgin Islanders mimicked aspects of North American culture that were invading their homeland and thrown in their faces daily. The tourism demonstration effect, the impact of television and other media, particularly from the United States, eroded the old and swept in this new ethos. Natives became preoccupied with trying to get the “Almighty Dollar” in order to engage in “conspicuous consumption”, and “keep up with the Jones’s”. They attempted to get every new product they saw on television. They seemed to forget the values that had preserved and protected them as a unified and proud people with a distinct culture, when they were poorer. Now they adopted some of the best but more of the worst characteristics of American culture, and the cultural complexion of the Virgin Islands experienced a face and body lift.
Today, natives are still trying to adjust and cope with the staggering results of this mammoth demographic increase along with the shift in their status from majority to minority and the adoption of a North American value system. Some of the other negative results of these changes were double-sessions in public schools, increased water shortages, electrical outages, greater impact on health and social services, roads, housing, increased crime, and the terrible treatment of immigrants from other Caribbean islands.
Our brothers and sisters from the rest of the Caribbean became the scapegoat for almost everything that was wrong in these islands, and were unfairly discriminated against as an unjustifiable reaction to their increasing numbers and the decreasing number of natives. Some Virgin Islanders felt threatened, became somewhat xenophobic but did not unite to protect and preserve their interests.
The above paragraphs may seem like a digression, but one cannot understand present day V.I. society without knowing, understanding and respecting the difference between pre and post 1960’s V.I. society and the impact of those massive changes from the perspective of natives. In the 1970’s and 1980’s, some natives began again to migrate to the U.S. Their presence in the population continued to dwindle and their culture and traditions started to disappear. All might have been lost had it not been for a few tradition bearers, who in spite of overwhelming odds, fought to preserve what semblance of pre-1960 culture they could remember. Every time a group of native people becomes extinct for whatever reason, all of the things, which they can contribute to the rich diversity of the human family, are lost.
The essence of this issue is first knowing and second accepting the existence of an endangered group of “people of” the Virgin Islands. The third part of this is respect. Once persons not only can do these things, but also see the value in doing so, then they can hopefully see the need for protection and preservation of this group in order that the “distinguishing character, and guiding beliefs” of this group and its culture, will survive and be promoted here in their homeland. You cannot say you want to preserve the culture and traditions of a people and not simultaneously acknowledge and respect the people as a distinct entity that also needs to be preserved. How can you have classical or traditional V.I. culture without the people from whom it emanated? This is the heart of the matter. To this end, laws have to be enacted in the constitution, and policies have to be implemented.
Native Virgin Islanders, who know and ground their research-based opinions in the knowledge and practice of their own ethos first and in the history of the U.S. and its relationships with territories second, have been called racist and un-American. This is what foments the unnecessary divisiveness. Supporting the preservation of native rights should not be divisive. This has to be even more important than doing the same when it comes to animals, plants and geographic areas. Areas that require special protection are called APC’s. A people who require the same consideration are called endangered natives. In other parts of the world, when natives start to disappear, special laws are enacted for their preservation. Instead of name-calling, let us work together to achieve mutual understanding and consensus in a way that respects all of our rights.
It has appeared from the discussions on talk shows and in editorials, that consensus means acknowledging and protecting the rights of every one but the native. Every time natives start to talk about their rights, they are brow-beaten by others, who sometimes understand neither them nor their history of oppression, colonization and current need to exercise self-determination without interference. Virgin Islanders must have the right to choose who will be invited to make important decisions along with them. This should be done at a minimum. If any group’s rights are to be accorded priority in the Virgin Islands, especially when it comes to respect and protection, it has to be the rights of the natives. How can the rights of the indigenes of a place be less important than those of immigrants, whether they are foreigners or U.S. citizens? In societies where native rights are ignored, the natives become extinct or are severely marginalized in every way in their own home. What comes to mind is the story of the camel that requested to be able to put a foot in a man’s tent to protect it from the cold. The man, being kind in nature agreed, but as the night wore on, the camel kept on asking for more and more space. The man gave in until the camel eventually took over the tent and the man to whom the tent was home, found himself placed out in the cold. This man must have been a Native Virgin Islander, because part of the pre-1960 ethos of Virgin Islanders, involved treating others better than they treated themselves.
This story is very relevant to the Native Virgin Islander dilemma. As such, it is time for Natives to learn from the painful lessons of their history. Some persons who come here act like the camel. They get upset when natives tell them that they do not have the same right to exercise decisions of self-determination and self-government here as much as the native does. In some instances, these persons even feel that they have more rights. Since they came from America, which owns these islands as property, and since they have “their 14th amendment” American citizenship, these persons may feel that these facts give them as much or even more right to be here than the native, since natives are not 14th amendment citizens, and are merely part of the property that the U.S. owns. None of them will ever put it in such stark terms. They will couch their views and justifications in all kinds of euphemisms such as freedom, democracy, 14th amendment equal protection rights and protections, etc. As discussed in a previous article, when viewed from the perspective of our colonizers, especially regarding citizenship, they are right. However, when viewed from the perspective of natives, which makes these matters questions of self-determination and self-government, they are wrong. We must be able to come to some sensible compromise on these issues where the rights of everyone are respected, but with priority accorded to the historical context of oppression and colonialism experienced by the natives. This hopefully can be done without persons getting upset. However, we must not be afraid of emotions as long as they are guided by reason.
From the perspective of the United States, Virgin Islanders and their homeland are viewed constitutionally as mere property that it owns. I thought that the slave trade had ended 200 years ago, and that slavery in these islands ended in 1848. I probably am wrong, but I cannot see myself being overjoyed with being considered as property. Recently, Virgin Islanders observed the 90th anniversary of the “sale of these islands and their people” to the U.S. Yes we have made much progress under U.S. rule, but none of it was willingly granted. Our foremothers and fathers had to struggle and endure many trials and tribulations to eke out what semblance of “self-government” exists here. (If you have the delusion that we have true self-government, simply examine Section 8 of the Revised Organic Act of 1954, or review the history of unilateral changes that the U.S. has made to laws and regulations here. in order to become disillusioned. Sometimes these changes have adversely affected the people of these islands). The most recent examples were the changes that affected the EDC beneficiaries and the restrictions on fishing. This may be why the source of U.S. governmental authority over this territory, even after 90 years of U.S. colonial rule, still is the pejorative Territorial Clause of the U.S. Constitution, which gives Congress full control over territory and property. (A careful reading of this clause will reveal that “Territory” means property). (See the citation below.)
“ The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States (...)”
Why isn’t Congressional authority over the V.I. located under Article I, where most of the powers of Congress are outlined? The same occurs with the District Courts. Authority over them comes from Article IV, instead of Article III. The difference is degrading in terms of independence, salary and tenure for District Court judges here. Therefore, Virgin Islanders are treated as property, and their sustained right to U.S. citizenship at birth may be tenuous at best. Remember Supreme Court Justice Brown said that unincorporated territories like the V.I. are “appurtenant to, but not a part of the United States…”. Sometimes natives feel that their friends and officials from the U.S. mainland act as though Virgin Islanders really are personal property just as a dog or a cat are the personal property of their owners. If this is the mentality of the persons who criticize natives for wanting to be treated as free humans, then I understand their reasoning, even though I totally disagree with it.
Being American does not have to mean what Arthur Schlesinger meant by it in “The Disuniting of America”. He wanted it to mean that all persons were to melt into some pot and lose the cultural distinctiveness they brought to this country. His analysis of the dangers of focusing too much on our racial and ethnic differences as retarding national unity, however, is accurate and very relevant to the V.I. situation. His melting pot concept only was applicable when America was considered to be a “white” country, where only Caucasians were the de-facto authentic citizens. Non-whites could never hope to “melt” in Mr. Schlesinger’s racial and ethnic pot. Their physical characteristics would always stand out and make them visually distinct from the majority of the Caucasian population. Thus, only the whites had the option legitimately “melting” into the pot.
Some persons still think that this is how America is supposed to be. However, it is not. Just like this cannot happen in the Virgin Islands, the time for this definition of being American has gone and has now evolved to mean subscribing to the ethos of the founding fathers with one key distinction. We the people must now mean all of the people. Being American today is like being part of a tossed salad. The new paradigm in the Virgin Islands just as in the U.S. must now be that all cultural groups are invited here, and while retaining elements of their cultural distinctiveness, they also need to subscribe to, respect and identify with the cultural traditions of Virgin Islanders. This may just be the win-win answer to unity in the Virgin Islands. This “tossed salad” concept is more nutritious and respectful than the melting pot). Food that has been melted has been denatured, and most of the essential live-giving properties have been destroyed. If the pot itself melts, whatever is in it will be poisoned. Is this what we want for our peoples and cultures? A tossed salad retains all of the life-giving properties of its constituent parts, while making a whole. However, the lettuce, which provides the foundation, is the main ingredient. The natives, their history, traditions and aspirations are the lettuce in the Virgin Islands’ tossed salad society. You do not have an authentic, traditional tossed salad without lettuce as the base.
Possibly, due to their belief in the assimilative or American melting pot theory, some of our friends do not even want to acknowledge the existence of the native people of the Virgin Islands, who have a distinct ethos that is rapidly disappearing. All they see is “America” and the American ethos here. They see little value in preserving Johnny cake and maufe. Believe it or not, I partially agree. It is not only the physical manifestations of a culture and a people that constitute their ethos. It is principally their values, the basis for them and the left and right brain processes they used to produce the excellent material products of their culture, notwithstanding the limitations imposed upon them by slavery and colonization. Probably the greatest aspect of our culture, is the way we think and solve problems, which is also inextricably intertwined with our language and other important non-material aspects of our culture. The physical manifestations could change, but when the non-material intellectual and spiritual ones disappear, the culture begins to decay and eventually may become extinct.
Anyhow, as far as some mainland V.I. residents are concerned, Virgin Islanders should be viewed as a monolithic group of assimilated Americans living here. Other than a few superficial expressions of our traditions, here should become a carbon copy of “downtown” America. Students of history like me should deny their education, forget this divisive, discriminatory foolishness about ethos and native rights, and simply just get along.
Get along according to whose definitions, worldview, ethos and most importantly, whose interests? Even in my former labor union, the charter members have more privileges than the members who came after; regardless of how long they serve in the union, how many strikes they have endured, etc. Special consideration is always given to those pioneers who endured the rigors of forming an organization. They are able to attend all functions freely and are recognized for their ground-breaking work. Why can’t the persons who are not the charter members of V.I. society, or their descendants understand and accept this principle?
One thing that the 1960’s taught conscious Africans living in this part of the world is that in order to survive, you must clearly unite, organize, define yourself and your interests for yourself, based on the specific context provided by your worldview, history, culture and other circumstances. As Professor Janice Hale of Clark University once wrote, “The power to define is the power to destroy.” You then need to find likeminded persons to help in the attainment of these interests. I wonder how many of us would even consider telling a Jew to forget his history, especially the holocaust and simply try to get along with the descendants of Nazis since they might be ideologically against what their forefathers promoted under Hitler? If the holocaust of Jews, which entitled them to receive reparations can be respected, why can’t the hundreds of years of African holocausts similarly be recognized, respected and the descendants similarly compensated by ensuring their ability to not only survive, but also succeed and prosper in their homeland? Who is betraying a racial motive now? Until this kind of respect and sensitivity for the people of the Virgin Islands as an endangered group with a distinct and dying ethos, is shown, there can be no hope for consensus and unity.
As one enlightened African philosopher has said, you cannot have peace without justice. Justice is a pre-condition and must include the recognition of the existence of the Native Virgin Islander as a group that should be protected and preserved at all cost. When this is done, then and only then can we collaborate and pursue peaceful coexistence.
28 January 2010
The Native Papers Part II
This is Part II of "The Native Papers" written by Virgin Islands historian Gerard Emanuel. Part I dealt with the Historical and Legal Bases for the Definition of a Native Virgin Islander. This second installment deals with the right to self-determination.
_______________________________________________________________________________
PART II. Why Native Virgin Islanders Have the Right to Exercise Self-Determination
by Gerard M. Emanuel
Part I of this series provided the legal basis for the definition of a Native Virgin Islander, as well as one fundamental reason why all U.S. citizens living in the U.S. Virgin Islands are not “equally American”. This justifies special treatment for natives, since the source or authority that grants citizenship to V.I. natives, (i.e. a Congressional Act of 1940), is a lower source of law, and is not as protected as the source of U.S. Citizenship for persons born in a state or for those who are naturalized, (i.e. the U.S. Constitution). The reality is that Congress can pass another act changing the law that grants U.S. Citizenship to Native Virgin Islanders at any time, but it cannot similarly change the U. S. Constitution, which guarantees and solidly protects the U.S. citizenship of persons born or naturalized in the U.S.
The above provides part of the historical and legal basis for proving that V.I. Natives are not similarly situated with other U.S. citizens who have migrated here, whether they are natural born citizens in a state or naturalized citizens, and thus it fulfills the singular requirement for mandatory differential treatment as required by the proper application of the 14th Amendment to the U.S. Constitution.
(See http://www2.sfasu.edu/polisci/Abel/ConstitutionalLawII/EQUALPROTECTION.htm)
Native Virgin Islanders who are not similarly situated with migrants are consistently having their 14th Amendment equal protection right to U.S. citizenship violated as we read these words. This is one reason that necessitates special privileges for them in lieu if this in the local constitution.
This essay will examine some very enlightening citations from Supreme Court cases, known as the “Insular Cases”. This review should conclusively dispel the notion that the Native Virgin Islanders, who suggest that only they and their descendants should make any fundamental decisions regarding the “civil rights and political status” of the people of the Virgin Islands, are racists, discriminatory and have no foundation for these assertions. This article should also expose the flaw in the statement that this idea of Native self-determination has no place in American law, and is thus “un-American”.
The fact is that the U.S. has historically treated territories with a majority of “non-European”, native people such as the Virgin Islands, in a racially patronizing manner. The native people in these territories, which became politically associated with the U.S. as a result of war or purchase, were denied certain rights and privileges that were automatically granted to persons in territories where the population was mainly of European descent.
This provides part of the historical record and foundation for the arguments put forth by some natives today, that only Native Virgin Islanders should determine their civil rights and political future, whether it is by writing a constitution or deciding political status, and that they should have special protections and privileges inserted in the local constitution. THIS IS BECAUSE OF THEIR RIGHT TO EQUAL PROTECTION.
Native Virgin Islanders (who were mainly but not only the African majority of the population), were the only ones in the Virgin Islands between 1917 and 1927, who were legally and politically prevented from deciding for themselves, their civil rights, citizenship and political status, without outside interference and imposition of the laws of another country. We already read in Part I that the Danes were allowed to decide for themselves whether to become U.S. citizens or retain their Danish nationality. Other European foreigners could likewise go back home or stay and become U.S. Citizens. The U.S. even opposed a referendum held to determine the wishes of the people. Thus it is clear that the U.S. intended to unilaterally force a decision on the majority of the population, (i.e. the natives), without providing them an opportunity for input in the decision-making process, which occurred during the treaty negotiations.) HOW UNAMERICAN THIS SEEMS!!!!
I understand that an informal plebiscite was held. However, if a real binding referendum were held, the majority of the population would have been denied participation, just as was the case in 1868, when sales negotiations were being considered. A vote on both St. Thomas and St. John at that time only included 12% of the population. (Boyer p. 79) This occurred because of the prohibitive property and income qualifications for voting or participating in any way in the political process under Danish rule. Thus, the majority of Native Virgin Islanders were denied their political EQUAL PROTECTION rights under both Danish and American rule.
Native Virgin Islanders eventually were involuntarily included in several congressional statutes, which they were told would serve as their constitutions, even though they did not vote to approve them locally – (i.e. the Organic Acts of 1936 and 1954). They were also told that their home was now an Unincorporated Territory. This meant that as long as they resided here in their homeland, they could never enjoy the privileges or have the full rights that U.S. citizens born and living in a state or on a U.S. military base any place in the world automatically get. It also meant that these islands were not a part of the U.S. The following statements by Justices Brown and White in A Supreme Court case entitled Downes V. Bidwell regarding Puerto Rico, confirm the latter statement. Recent Court cases have confirmed that the statements below apply to all Unincorporated Territories of the United States. (See the Krim Ballentine case.)
“The 13th Amendment to the Constitution, prohibiting slavery and involuntary servitude 'within the United States, or in any place subject to their jurisdiction,' is also significant as showing that there may be places within the jurisdiction of the United States that are no part of the Union.” (182 U.S. 251) “We are therefore of opinion that the island of Porto Rico is a territory appurtenant and belonging to the United States, but not a part of the United States within the revenue clauses of the Constitution;” (182 U.S. 287)
“The result of what has been said is that while in an international sense Porto Rico was not a foreign country, since it was subject to the sovereignty of and was owned by the United States, it was foreign to the United States in a domestic sense, *342 because the island had not been incorporated into the United States, but was merely appurtenant thereto as a possession.” (182 U.S. 244, 342). Finally, if one interprets Justice Brown correctly below, the citizenship granted by Congress to the natives of these islands was not constitutionally protected as it is for persons born within a state or for naturalized citizens.
“Upon the other hand, the 14th Amendment, upon the subject of citizenship, declares only that 'all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States, and of the state wherein they reside.' Here there is a limitation to persons born or naturalized in the United States, which is not extended to persons born in any place 'subject to their jurisdiction.' “ (Downes v. Bidwell, 1901, 182 U.S. 251). I do not think that he could have said it any clearer. The above lays the cornerstone for native rights and equal protection for Native Virgin Islanders.
What Virgin Islanders did not understand in 1917, was that the U.S. never intended to incorporate these islands into the U.S. proper, either as a territory or as a state. In sum, the degree to which native Virgin Islanders are “American” is directly tied to the political status of their homeland. “U.S. citizens” are not all equally “American”. They have certain rights when they live in a state, and lose them when they live in a territory. (See the Krim Ballentine case.) THIS IS REALLY WHAT IS UN-AMERICAN. THIS IS REALLY THE VIOLATION AND INJUSTICE. THIS IS PRECISELY WHAT PERSONS WHO COME HERE OUGHT TO BE FIGHTING AGAINST, INSTEAD OF ATTACKING THE REAL VICTIMS OF LEGALIZED RACISM AND DISCRIMINATION FOR HUNDREDS OF YEARS IN THIS LAND– (i.e. the Native Virgin Islanders.) As such, the persons who were adversely affected and their descendants, have the inalienable right to change the status of this territory, or retain it if they so choose, on their own without outside interference.
Although some local input was entertained when the Organic Acts were discussed in Congress, the masses of natives were not legitimately or popularly consulted about these important local self-governance decisions. They were never exclusively and legitimately, (according to international legal standards), given the opportunity to vote on any federal statutes that defined and outlined their civil rights. (The relevance of international law and standards to this discussion will be fully addressed in Part IV of this series).
They also had no say in deciding their political status. Therefore, whatever civil rights and political status currently exist, whether natives agree with them or not is immaterial and irrelevant. Native Virgin Islanders pursuant to both U.S. and international law, and resolutions must have the right to decide both of these matters on their own, without outside interference. Outside interference includes the constraints imposed by the United States Constitution and Congress on the processes granted by law to achieve greater self-government and finally self-determination. For example, Congress has determined for the natives of the Virgin Islands, who will be permitted to be a constitutional delegate and who will vote on the out come of the process. The local Legislature simply made superficial modifications that in no way respect the right of the indigenes of this territory to equal protection of the laws, self-definition, self-governance and ultimately self-determination.
Furthermore, the Virgin Islands are governed pursuant to Article IV of the U.S. Constitution. This is the part that gives Congress full authority over property. If the V.I. and its natives are considered legally as mere property, how can any exercise in self-government or self-determination be legitimate? Before Virgin Islanders can engage in these processes, the colonial control that the U.S. exercises over them under Article IV of the U.S. Constitution must be temporarily delegated or more directly, transferred from the U.S. to the Virgin Islands. (Se Resolution 1514 sections 5-7 in Appendix A at the end of this paper.)
Only when the above occurs can Virgin Islanders validly engage in self-governing and/or self-determining activities. In other words, only free persons not colonial subjects can exercise self-governance and self-determination. Absent this transfer of powers to the Virgin Islands, these processes can be viewed as nothing but a sham. This position is particularly strengthened by the facts previously mentioned, which can be summarized in the following sentences.
Only persons defined as natives or inhabitants were singled out for unfair discrimination in 1917. They were the only Virgin Islanders who were denied their inalienable right to choose their political status and civil rights, without undue outside pressure and interference. This is a clear violation of the principles upon which the United States of America was founded and a violation of their right to equal protection of the laws. “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”(taken from the 2nd sentence of the Declaration of Independence).
Furthermore, denying Native Virgin Islanders this right is also a violation of those international standards that have been accepted by the U.S. as being appropriate for other places in the world ( such as Israel). In light of this, only Native Virgin Islanders, their descendants and whomever else they choose to participate, should legally have the right to correct this wrong. The key point is that natives alone should have the right to choose who along with them will determine their political future. Any decision which excludes this right can
under no valid definition be considered a legitimate exercise of self-determination or even self government.
Persons who have come here either from the U.S. or from elsewhere, emigrated from countries where their people either already exercised their right of self-determination, or if not, because of their “native” or “belonger” status, these persons could go back and do so if and when the opportunity arises. For Native Virgin Islanders, the Virgin Islands is their only homeland, and the place where they must be able to exercise their inalienable rights as human beings.
Readers, Native Virgin Islanders have no similar options (i.e. we are not similarly situated with migrants to the V.I. Thus the proper application of the 14th amendment on behalf of V.I. Natives demands that we be treated dissimilarly from the migrants to the V.I. and be accorded certain privileges to provide for equal protection of the laws.) In 1917, Native Virgin Islanders were not automatically granted several of the rights and privileges given to U.S. Citizens in the original contiguous territories of the U.S. prior to the last decade of the 19th century, such as trial by jury, the right to a Grand Jury, U.S. Citizenship, etc.
Just as had been done with Puerto Rico and Guam in the Treaty of Paris 19 years earlier, the U.S. treated its territories that did not have a majority of Caucasians, very differently from how it had dealt with its original territories on the U.S. mainland, which had consisted largely of Caucasians.
These original contiguous territories were immediately incorporated into the United States, where almost the entire Constitution automatically applied to them – i.e. “ the Constitution automatically followed the flag.” Thus the Caucasian inhabitants were immediately made full citizens of the United States. According to William Boyer, a scholar of renown, who did his Master’s Thesis on Civil Liberties in the Virgin Islands, it had been assumed that the contiguous territories, which were created after the original 13, “were but extensions of the nation and entitled, not as a privilege, but as a right, to all the benefits of equality that the states enjoyed in the field of civil rights.” (Boyer, Civil Liberties. P. 2) The status of these territories was regarded as being only temporary. The plan was to prepare them for eventual admission as a state. (ibid. p.2) Boyer called this practice the “doctrine of equality”. In it the Caucasian residents of territories were treated as the equals of other U.S. Citizens in the existing states. Their territory also was expected to join the union as a state as soon as they were ready. There was no mention of the need for these territories to be incorporated into the U.S. or for Congress to determine their civil rights and political status, as was the case for Guam, Puerto Rico and eventually the V.I.
The above was the prevailing practice until the end of the 19th century. However, when the U.S. acquired Guam, Puerto Rico and the Philippines at the end of the Spanish American War, it changed its practice of treating territories and the residents therein according to the “Doctrine of Equality”. It began to utilize what became known as the “Doctrine of Incorporation” for these new possessions. In other words, the U.S. government did not automatically incorporate these new places into the U.S. by making the U.S. Constitution automatically apply as much as possible, as had been the common practice. The Supreme Court invented a nebulous concept of incorporation to determine whether a territory and its inhabitants would have the Constitution automatically apply. In all of the cases where the territories had large populations of persons of a different color and culture from those in the U.S. mainland, the court refused to make them an incorporated possession of the U.S. Supreme Court. Justices White and Brown were the main proponents of the rationale for justifying this discriminatory treatment of the non-white peoples in the unincorporated areas belonging to the United States.
The same twisted reasoning expressed by the Justices cited above, was applied by other U.S. officials to the Virgin Islands in 1917, and used to deny full citizenship rights to the majority of Blacks, while granting these rights to the Danes. It is obvious that the U.S. Government never intended for these non-contiguous territories, where the majority of the population was nonwhite, to become states. Some persons even contend that it was only when the population of Hawaii had become “white” enough, was it admitted as a state. When one reads the Insular Cases, particularly Downes v. Bidwell, it is obvious that a small plurality of the Justices, led curiously by Judges with colorful names such as Brown and White, did not feel that persons of color who possessed different cultural practices from theirs, would be able to appreciate and properly utilize the privileges and rights accorded to Caucasian U.S. Citizens.
According to Justice Brown: “It is obvious that in the annexation of outlying and distant possessions, grave questions will arise from differences of race, habits, laws, and customs of the people, and from differences of soil, climate, and production, which may require action on the part of Congress that would be quite unnecessary in the annexation of contiguous territory inhabited only by people of the same race, or by scattered bodies of native Indians. “
As such, all kinds of distinctions were created to deny the people of color in these newly acquired territories, the equal treatment that had become the practice up until this point. The Supreme Court also invented an artificial distinction between fundamental and formal parts of the U.S. Constitution in its attempt to justify this blatant discrimination. According to Justice Brown:
“We suggest, without intending to decide, that there may be a distinction between certain natural rights enforced in the Constitution by prohibitions against interference with them, and what may be termed artificial or remedial rights which are peculiar to our own system of jurisprudence. Of the former class are the rights to one's own religious opinions and to a public expression of them, or, as sometimes said, to worship God according to the dictates of one's own conscience; the right to personal liberty and individual property; to freedom of speech and of the press; to free access to courts of justice, to due process of law, and to an equal protection of the laws; to immunities from unreasonable searches and seizures, as well as cruel and unusual punishments; and to such other immunities as are in- [182 U.S. 244, 283] dispensable to a free government. Of the latter class are the rights to citizenship, to suffrage (Minor v. Happersett, 21 Wall. 162, 22 L. ed. 627), and to the particular methods of procedure pointed out in the Constitution, which are peculiar to Anglo-Saxon jurisprudence, and some of which have already been held by the states to be unnecessary to the proper protection of individuals.”
Can you believe that the above citations were written by Justice Brown? Is this the kind of reasoning that is to be considered acceptable from an “American” sitting on the highest court in the U.S.? Furthermore, his view could not have been at variance with many other pubic officials, because they adopted this same logic in decisions regarding all of their overseas possessions.
In conclusion, after being subjected to such racially biased treatment, the indigenes of this territory and their descendants ought to have the prerogative to choose whomever they wish to invite to participate in deciding their political status and structure of government. If the above is not an adequate basis for granting Native Virgin Islanders these and other civil and human rights and privileges, for which they are reportedly overseas fighting to secure for other peoples, I do not know what else is. A reasonable and objective mind would see that this right is “totally American”, and forms the basis of several documents written by the Founding Fathers of the United States of America. Part III in this series will discuss a more compelling basis for treating Native Virgin Islanders favorably.
APPENDIX A
Excerpts from U.N. GA Resolution 1514
5. Immediate steps shall be taken, in Trust and Non-Self-Governing Territories or all other territories which have not yet attained independence, to transfer all powers to the peoples of those territories, without any conditions or reservations, in accordance with their freely expressed will and desire, without any distinction as to race, creed or colour, in order to enable them to enjoy complete independence and freedom.
6. Any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations.
7. All States shall observe faithfully and strictly the provisions of the Charter of the United Nations, the Universal Declaration of Human Rights and the present Declaration on the basis of equality, non-interference in the internal affairs of all States, and respect for the sovereign rights of all peoples and their territorial integrity.
_______________________________________________________________________________
PART II. Why Native Virgin Islanders Have the Right to Exercise Self-Determination
by Gerard M. Emanuel
Part I of this series provided the legal basis for the definition of a Native Virgin Islander, as well as one fundamental reason why all U.S. citizens living in the U.S. Virgin Islands are not “equally American”. This justifies special treatment for natives, since the source or authority that grants citizenship to V.I. natives, (i.e. a Congressional Act of 1940), is a lower source of law, and is not as protected as the source of U.S. Citizenship for persons born in a state or for those who are naturalized, (i.e. the U.S. Constitution). The reality is that Congress can pass another act changing the law that grants U.S. Citizenship to Native Virgin Islanders at any time, but it cannot similarly change the U. S. Constitution, which guarantees and solidly protects the U.S. citizenship of persons born or naturalized in the U.S.
The above provides part of the historical and legal basis for proving that V.I. Natives are not similarly situated with other U.S. citizens who have migrated here, whether they are natural born citizens in a state or naturalized citizens, and thus it fulfills the singular requirement for mandatory differential treatment as required by the proper application of the 14th Amendment to the U.S. Constitution.
(See http://www2.sfasu.edu/polisci/Abel/ConstitutionalLawII/EQUALPROTECTION.htm)
Native Virgin Islanders who are not similarly situated with migrants are consistently having their 14th Amendment equal protection right to U.S. citizenship violated as we read these words. This is one reason that necessitates special privileges for them in lieu if this in the local constitution.
This essay will examine some very enlightening citations from Supreme Court cases, known as the “Insular Cases”. This review should conclusively dispel the notion that the Native Virgin Islanders, who suggest that only they and their descendants should make any fundamental decisions regarding the “civil rights and political status” of the people of the Virgin Islands, are racists, discriminatory and have no foundation for these assertions. This article should also expose the flaw in the statement that this idea of Native self-determination has no place in American law, and is thus “un-American”.
The fact is that the U.S. has historically treated territories with a majority of “non-European”, native people such as the Virgin Islands, in a racially patronizing manner. The native people in these territories, which became politically associated with the U.S. as a result of war or purchase, were denied certain rights and privileges that were automatically granted to persons in territories where the population was mainly of European descent.
This provides part of the historical record and foundation for the arguments put forth by some natives today, that only Native Virgin Islanders should determine their civil rights and political future, whether it is by writing a constitution or deciding political status, and that they should have special protections and privileges inserted in the local constitution. THIS IS BECAUSE OF THEIR RIGHT TO EQUAL PROTECTION.
Native Virgin Islanders (who were mainly but not only the African majority of the population), were the only ones in the Virgin Islands between 1917 and 1927, who were legally and politically prevented from deciding for themselves, their civil rights, citizenship and political status, without outside interference and imposition of the laws of another country. We already read in Part I that the Danes were allowed to decide for themselves whether to become U.S. citizens or retain their Danish nationality. Other European foreigners could likewise go back home or stay and become U.S. Citizens. The U.S. even opposed a referendum held to determine the wishes of the people. Thus it is clear that the U.S. intended to unilaterally force a decision on the majority of the population, (i.e. the natives), without providing them an opportunity for input in the decision-making process, which occurred during the treaty negotiations.) HOW UNAMERICAN THIS SEEMS!!!!
I understand that an informal plebiscite was held. However, if a real binding referendum were held, the majority of the population would have been denied participation, just as was the case in 1868, when sales negotiations were being considered. A vote on both St. Thomas and St. John at that time only included 12% of the population. (Boyer p. 79) This occurred because of the prohibitive property and income qualifications for voting or participating in any way in the political process under Danish rule. Thus, the majority of Native Virgin Islanders were denied their political EQUAL PROTECTION rights under both Danish and American rule.
Native Virgin Islanders eventually were involuntarily included in several congressional statutes, which they were told would serve as their constitutions, even though they did not vote to approve them locally – (i.e. the Organic Acts of 1936 and 1954). They were also told that their home was now an Unincorporated Territory. This meant that as long as they resided here in their homeland, they could never enjoy the privileges or have the full rights that U.S. citizens born and living in a state or on a U.S. military base any place in the world automatically get. It also meant that these islands were not a part of the U.S. The following statements by Justices Brown and White in A Supreme Court case entitled Downes V. Bidwell regarding Puerto Rico, confirm the latter statement. Recent Court cases have confirmed that the statements below apply to all Unincorporated Territories of the United States. (See the Krim Ballentine case.)
“The 13th Amendment to the Constitution, prohibiting slavery and involuntary servitude 'within the United States, or in any place subject to their jurisdiction,' is also significant as showing that there may be places within the jurisdiction of the United States that are no part of the Union.” (182 U.S. 251) “We are therefore of opinion that the island of Porto Rico is a territory appurtenant and belonging to the United States, but not a part of the United States within the revenue clauses of the Constitution;” (182 U.S. 287)
“The result of what has been said is that while in an international sense Porto Rico was not a foreign country, since it was subject to the sovereignty of and was owned by the United States, it was foreign to the United States in a domestic sense, *342 because the island had not been incorporated into the United States, but was merely appurtenant thereto as a possession.” (182 U.S. 244, 342). Finally, if one interprets Justice Brown correctly below, the citizenship granted by Congress to the natives of these islands was not constitutionally protected as it is for persons born within a state or for naturalized citizens.
“Upon the other hand, the 14th Amendment, upon the subject of citizenship, declares only that 'all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States, and of the state wherein they reside.' Here there is a limitation to persons born or naturalized in the United States, which is not extended to persons born in any place 'subject to their jurisdiction.' “ (Downes v. Bidwell, 1901, 182 U.S. 251). I do not think that he could have said it any clearer. The above lays the cornerstone for native rights and equal protection for Native Virgin Islanders.
What Virgin Islanders did not understand in 1917, was that the U.S. never intended to incorporate these islands into the U.S. proper, either as a territory or as a state. In sum, the degree to which native Virgin Islanders are “American” is directly tied to the political status of their homeland. “U.S. citizens” are not all equally “American”. They have certain rights when they live in a state, and lose them when they live in a territory. (See the Krim Ballentine case.) THIS IS REALLY WHAT IS UN-AMERICAN. THIS IS REALLY THE VIOLATION AND INJUSTICE. THIS IS PRECISELY WHAT PERSONS WHO COME HERE OUGHT TO BE FIGHTING AGAINST, INSTEAD OF ATTACKING THE REAL VICTIMS OF LEGALIZED RACISM AND DISCRIMINATION FOR HUNDREDS OF YEARS IN THIS LAND– (i.e. the Native Virgin Islanders.) As such, the persons who were adversely affected and their descendants, have the inalienable right to change the status of this territory, or retain it if they so choose, on their own without outside interference.
Although some local input was entertained when the Organic Acts were discussed in Congress, the masses of natives were not legitimately or popularly consulted about these important local self-governance decisions. They were never exclusively and legitimately, (according to international legal standards), given the opportunity to vote on any federal statutes that defined and outlined their civil rights. (The relevance of international law and standards to this discussion will be fully addressed in Part IV of this series).
They also had no say in deciding their political status. Therefore, whatever civil rights and political status currently exist, whether natives agree with them or not is immaterial and irrelevant. Native Virgin Islanders pursuant to both U.S. and international law, and resolutions must have the right to decide both of these matters on their own, without outside interference. Outside interference includes the constraints imposed by the United States Constitution and Congress on the processes granted by law to achieve greater self-government and finally self-determination. For example, Congress has determined for the natives of the Virgin Islands, who will be permitted to be a constitutional delegate and who will vote on the out come of the process. The local Legislature simply made superficial modifications that in no way respect the right of the indigenes of this territory to equal protection of the laws, self-definition, self-governance and ultimately self-determination.
Furthermore, the Virgin Islands are governed pursuant to Article IV of the U.S. Constitution. This is the part that gives Congress full authority over property. If the V.I. and its natives are considered legally as mere property, how can any exercise in self-government or self-determination be legitimate? Before Virgin Islanders can engage in these processes, the colonial control that the U.S. exercises over them under Article IV of the U.S. Constitution must be temporarily delegated or more directly, transferred from the U.S. to the Virgin Islands. (Se Resolution 1514 sections 5-7 in Appendix A at the end of this paper.)
Only when the above occurs can Virgin Islanders validly engage in self-governing and/or self-determining activities. In other words, only free persons not colonial subjects can exercise self-governance and self-determination. Absent this transfer of powers to the Virgin Islands, these processes can be viewed as nothing but a sham. This position is particularly strengthened by the facts previously mentioned, which can be summarized in the following sentences.
Only persons defined as natives or inhabitants were singled out for unfair discrimination in 1917. They were the only Virgin Islanders who were denied their inalienable right to choose their political status and civil rights, without undue outside pressure and interference. This is a clear violation of the principles upon which the United States of America was founded and a violation of their right to equal protection of the laws. “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”(taken from the 2nd sentence of the Declaration of Independence).
Furthermore, denying Native Virgin Islanders this right is also a violation of those international standards that have been accepted by the U.S. as being appropriate for other places in the world ( such as Israel). In light of this, only Native Virgin Islanders, their descendants and whomever else they choose to participate, should legally have the right to correct this wrong. The key point is that natives alone should have the right to choose who along with them will determine their political future. Any decision which excludes this right can
under no valid definition be considered a legitimate exercise of self-determination or even self government.
Persons who have come here either from the U.S. or from elsewhere, emigrated from countries where their people either already exercised their right of self-determination, or if not, because of their “native” or “belonger” status, these persons could go back and do so if and when the opportunity arises. For Native Virgin Islanders, the Virgin Islands is their only homeland, and the place where they must be able to exercise their inalienable rights as human beings.
Readers, Native Virgin Islanders have no similar options (i.e. we are not similarly situated with migrants to the V.I. Thus the proper application of the 14th amendment on behalf of V.I. Natives demands that we be treated dissimilarly from the migrants to the V.I. and be accorded certain privileges to provide for equal protection of the laws.) In 1917, Native Virgin Islanders were not automatically granted several of the rights and privileges given to U.S. Citizens in the original contiguous territories of the U.S. prior to the last decade of the 19th century, such as trial by jury, the right to a Grand Jury, U.S. Citizenship, etc.
Just as had been done with Puerto Rico and Guam in the Treaty of Paris 19 years earlier, the U.S. treated its territories that did not have a majority of Caucasians, very differently from how it had dealt with its original territories on the U.S. mainland, which had consisted largely of Caucasians.
These original contiguous territories were immediately incorporated into the United States, where almost the entire Constitution automatically applied to them – i.e. “ the Constitution automatically followed the flag.” Thus the Caucasian inhabitants were immediately made full citizens of the United States. According to William Boyer, a scholar of renown, who did his Master’s Thesis on Civil Liberties in the Virgin Islands, it had been assumed that the contiguous territories, which were created after the original 13, “were but extensions of the nation and entitled, not as a privilege, but as a right, to all the benefits of equality that the states enjoyed in the field of civil rights.” (Boyer, Civil Liberties. P. 2) The status of these territories was regarded as being only temporary. The plan was to prepare them for eventual admission as a state. (ibid. p.2) Boyer called this practice the “doctrine of equality”. In it the Caucasian residents of territories were treated as the equals of other U.S. Citizens in the existing states. Their territory also was expected to join the union as a state as soon as they were ready. There was no mention of the need for these territories to be incorporated into the U.S. or for Congress to determine their civil rights and political status, as was the case for Guam, Puerto Rico and eventually the V.I.
The above was the prevailing practice until the end of the 19th century. However, when the U.S. acquired Guam, Puerto Rico and the Philippines at the end of the Spanish American War, it changed its practice of treating territories and the residents therein according to the “Doctrine of Equality”. It began to utilize what became known as the “Doctrine of Incorporation” for these new possessions. In other words, the U.S. government did not automatically incorporate these new places into the U.S. by making the U.S. Constitution automatically apply as much as possible, as had been the common practice. The Supreme Court invented a nebulous concept of incorporation to determine whether a territory and its inhabitants would have the Constitution automatically apply. In all of the cases where the territories had large populations of persons of a different color and culture from those in the U.S. mainland, the court refused to make them an incorporated possession of the U.S. Supreme Court. Justices White and Brown were the main proponents of the rationale for justifying this discriminatory treatment of the non-white peoples in the unincorporated areas belonging to the United States.
The same twisted reasoning expressed by the Justices cited above, was applied by other U.S. officials to the Virgin Islands in 1917, and used to deny full citizenship rights to the majority of Blacks, while granting these rights to the Danes. It is obvious that the U.S. Government never intended for these non-contiguous territories, where the majority of the population was nonwhite, to become states. Some persons even contend that it was only when the population of Hawaii had become “white” enough, was it admitted as a state. When one reads the Insular Cases, particularly Downes v. Bidwell, it is obvious that a small plurality of the Justices, led curiously by Judges with colorful names such as Brown and White, did not feel that persons of color who possessed different cultural practices from theirs, would be able to appreciate and properly utilize the privileges and rights accorded to Caucasian U.S. Citizens.
According to Justice Brown: “It is obvious that in the annexation of outlying and distant possessions, grave questions will arise from differences of race, habits, laws, and customs of the people, and from differences of soil, climate, and production, which may require action on the part of Congress that would be quite unnecessary in the annexation of contiguous territory inhabited only by people of the same race, or by scattered bodies of native Indians. “
As such, all kinds of distinctions were created to deny the people of color in these newly acquired territories, the equal treatment that had become the practice up until this point. The Supreme Court also invented an artificial distinction between fundamental and formal parts of the U.S. Constitution in its attempt to justify this blatant discrimination. According to Justice Brown:
“We suggest, without intending to decide, that there may be a distinction between certain natural rights enforced in the Constitution by prohibitions against interference with them, and what may be termed artificial or remedial rights which are peculiar to our own system of jurisprudence. Of the former class are the rights to one's own religious opinions and to a public expression of them, or, as sometimes said, to worship God according to the dictates of one's own conscience; the right to personal liberty and individual property; to freedom of speech and of the press; to free access to courts of justice, to due process of law, and to an equal protection of the laws; to immunities from unreasonable searches and seizures, as well as cruel and unusual punishments; and to such other immunities as are in- [182 U.S. 244, 283] dispensable to a free government. Of the latter class are the rights to citizenship, to suffrage (Minor v. Happersett, 21 Wall. 162, 22 L. ed. 627), and to the particular methods of procedure pointed out in the Constitution, which are peculiar to Anglo-Saxon jurisprudence, and some of which have already been held by the states to be unnecessary to the proper protection of individuals.”
Can you believe that the above citations were written by Justice Brown? Is this the kind of reasoning that is to be considered acceptable from an “American” sitting on the highest court in the U.S.? Furthermore, his view could not have been at variance with many other pubic officials, because they adopted this same logic in decisions regarding all of their overseas possessions.
In conclusion, after being subjected to such racially biased treatment, the indigenes of this territory and their descendants ought to have the prerogative to choose whomever they wish to invite to participate in deciding their political status and structure of government. If the above is not an adequate basis for granting Native Virgin Islanders these and other civil and human rights and privileges, for which they are reportedly overseas fighting to secure for other peoples, I do not know what else is. A reasonable and objective mind would see that this right is “totally American”, and forms the basis of several documents written by the Founding Fathers of the United States of America. Part III in this series will discuss a more compelling basis for treating Native Virgin Islanders favorably.
APPENDIX A
Excerpts from U.N. GA Resolution 1514
5. Immediate steps shall be taken, in Trust and Non-Self-Governing Territories or all other territories which have not yet attained independence, to transfer all powers to the peoples of those territories, without any conditions or reservations, in accordance with their freely expressed will and desire, without any distinction as to race, creed or colour, in order to enable them to enjoy complete independence and freedom.
6. Any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations.
7. All States shall observe faithfully and strictly the provisions of the Charter of the United Nations, the Universal Declaration of Human Rights and the present Declaration on the basis of equality, non-interference in the internal affairs of all States, and respect for the sovereign rights of all peoples and their territorial integrity.
27 January 2010
The Native Papers Part I
Considerable response has been generated from the Caribbean, Pacific and South Atlantic as a result of the article "Who Constitutes the People" in a non self-governing territory. Virgin Islands historian Gerard M. Emanuel has made available his series of articles known as "The Native Papers" which presents a unique perspective on the historical basis for the recognition of the Native Virgin Islander emerging from the 1917 Treaty of Cession transferring the former Danish West Indies to the United States for a sum of US$ 25 million in gold. The series of articles were originally written prior to the 2007 election of delegates to the Fifth Constitutional Convention of the US Virgin Islands, and revised in January 2010, following the adoption of a draft constitution for that US territory in May, 2009 which has been forwarded to Washington for review. Mr. Emanuel is a member of the Convention, but the views expressed are his own.
__________________________________________________________________________________
PART I. Historical and Legal Bases for the Definition of a Native Virgin Islander
by Gerard M. Emanuel
Prior to the constitutional convention in the Virgin Islands of the U.S.A., discussions about the definition of a “Native Virgin Islander” and that of a “Virgin Islander” resurfaced on radio talk shows and in editorials in local papers. These discourses prompted the writing of this series of essays entitled “The Native Papers”. It will hopefully provide some of the historical and legal rationale for the viewpoints and outcries of conscious Native Virgin Islanders who base their positions on facts, history, context and law. Specifically it will focus on acknowledging, providing the justification for and respecting the exclusive right of VI indigenes to participate on their own in determining their civil rights, form of government and political status. Natives have never been granted the right to do these things as natives without outside interference. Outside interference includes authorizing anyone who is not a native to participate in constitutional drafting, status and self-determination processes including plebiscites and referenda.
The historical records will verify that in the past, first the colonizers decided these matters for natives. When natives were allowed to participate, their vote and intent were circumvented because the decision-making processes always included all of the people in the Virgin Islands who could qualify to vote in regular elections. Included in this group of non-natives are members of the colonizers from the U.S. mainland. It is clearly contradictory and a violation of international law to allow non-native Virgin Islanders who are citizens of the colonizing or “Administering” power to participate in the fundamental political exercises of the People of an Unincorporated Territory, or colony. Two examples of such activities are constitutional reform, and political status determination. It is our contention that some of these persons should not have been allowed to participate if these acts were to be considered as authentic exercises in self-determination by the People of the Virgin Islands, who are the ones discriminated against in the treaty of Cession between Denmark and the U.S.A. in 1917, and during the first 14 years of military rule in the V.I., WE HOLD THAT THERE EXISTS A CLEAR DISTINCTION BETWEEN THE PEOPLE OF AND THE PEOPLE IN THE VIRGIN ISLANDS.
The former are the natives and their descendants who were purchased along with the property by the United States, (in clear violation of the 13th and 14th amendments to the U.S. Constitution, as well as the 1848 and 1863 Emancipation Proclamations by Denmark and the U.S.A. respectively). The latter are those who came afterwards, or were here during the transfer of the islands from Denmark to the U.S.A. but were expressly or implicitly given the option of keeping their citizenship or accepting U.S. citizenship. The People of the Virgin Islands, (who are the natives), were not given this privilege or right. This initial article will provide some of the citations in U.S. federal legal documents that created the definition of a Native Virgin Islander, and put to rest the assertions that the are the creation of a few radical and racist “Native Virgin Islanders” who want to “deny the fundamental rights” of other residents here.
Federal legal documents will also be cited to show that all U.S. Citizens living in the U.S. Virgin Islands are not all “equally American”. Some persons have suggested that to consider the “people of the Virgin Islands” to be something other than “Americans” is racially discriminatory, since this is an American territory and we are all equally “American”. Others point out that nobody living here today or any of their direct ancestors is a true “Native Virgin Islander”. Such a designation should be reserved for the Indigenous Americans who migrated here before Columbus.
None of these statements is accurate. First, we are not all “merely” or “equally” American. Even if we were to accept this claim, the U.S. Government always does something to illustrate that such is not the case. For example, according to reliable reports, the U.S. military, after hurricane Hugo ravaged the V.I. in 1989, indicated that it was sent here with the express purpose of “securing and saving U.S. Citizens or Americans”? What occurred however, was that the military primarily looked for Caucasians living in the Virgin Islands. If we are all equally American, why were the majority of “U.S. Citizens” living here, who are of African and Hispanic descent, who also lost their homes and required assistance, not sought and treated equally favorably? Apparently in this instance, “U.S. citizens” or “Americans” were simply euphemisms for Caucasians living in the Virgin Islands.
Native Virgin Islanders did not create race consciousness or racial and ethnic distinctions. The U.S. Government did so with its policies before, during and after the U.S. Constitution was framed and approved. It denied certain rights to women, most Africans and the indigenous American population. It was eventually forced by a war to grant some of these rights to most Americans, with the passage of Civil War Amendments. Nevertheless the U.S. Constitution and other U.S. law still do not extend to, protect and treat all U.S. Citizens equally.
When the U.S. acquired its outlying possessions, at the end of the 19th century, it continued to unfairly discriminate against persons of color as had been the pattern with Africans inside of the U.S. during and after slavery. The pretext this time was that certain “rights and privileges” in the U.S. Constitution, were peculiar to “Americans” and therefore “nonessential” for the protection of persons in the “outlying” territories to obtain. Two of these were full U.S. Citizenship, and trial by jury.
If anyone is to be charged with discriminating based on race and ethnicity, it is clearly the U.S. government even on the Supreme Court at the turn of the 20th century and in some earlier cases, such as the infamous Dred Scott Decision of 1857. Furthermore, the U.S. officials who authored the Treaty of Cession with Denmark also unfairly discriminated based on race, nationality and ethnicity. This article and its sequel will provide the documentation for these assertions. (See citations below):
United States Statute
8 USC Sec. 1406
-EXPCITE-
TITLE 8 - ALIENS AND NATIONALITY
CHAPTER 12 - IMMIGRATION AND NATIONALITY
SUBCHAPTER III - NATIONALITY AND NATURALIZATION
Part I - Nationality at Birth and Collective Naturalization
-HEAD-
Sec. 1406. Persons living in and born in the Virgin Islands
The Insular Cases, 182 US 244 (1901), Downes v. Bidwell, comments by Justices Brown and White and 182 U.S. 1, De Lima v. Bidwell 1901
In U.S. Statutes or in the congressional acts cited above, the term, “Native Virgin Islander”, was not specifically used. However, a careful reading of the above cited documents will clearly indicate that the terms employed, meant those people who were living here at the time of the transfer of these islands from Denmark to the U.S.A., who could not claim to be a citizen or native of any other place but the Virgin Islands. This was the majority of “non-white” residents.
Let us now examine a few statements from Section 1406 of the 1940 Nationality Act. This act of Congress amended a previous Act, (44 Stat. 1234 1927), which had made Virgin Islanders U.S. Citizens by statute, by making them citizens at birth. However, before looking at the citations from the 1940 Act, it should be made clear that irrespective of how Congress provided U.S. Citizenship to Native Virgin Islanders, citizenship granted by Congress does not have the same legal authority as citizenship that is guaranteed by the U.S. Constitution. This is another legal reason why all “U.S. Citizens” living in the Virgin Islands, are not “all equally American.” Persons who were born in one of the 50 states, or on a U.S. military base in any part of the world, are natural-born U.S. Citizens, and are all equally “American” pursuant to the 14th Amendment to the U.S. Constitution. Also, persons who are naturalized, are granted U.S. Citizenship by the 14th amendment to the U.S. Constitution and thus receive the same constitutional protection of their Citizenship status as U.S. Citizens who are born in a state or on a military base receive. (See the applicable part of the first sentence of the 14th Amendment below).
1: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States…”
Both of these sets of U.S. Citizens may not be aware of this discriminatory privilege they have been granted, that persons born in the Virgin Islands or in another Unincorporated Territory do not have. This is another reason why we are not all “equally American” here in the U.S. Virgin Islands. Any Congress can pass an act to sell the Virgin Islands and take away the current right of persons born in these islands to be U.S. Citizens at birth. Conversely, neither Congress nor the Supreme Court can do this to persons whose basis for receiving U.S. Citizenship is the 14th Amendment to the U.S. Constitution.
Therefore, Native Virgin Islanders are not “similarly situated” with persons born in a state who have migrated here as U.S. Citizens, or with those who were naturalized either here or elsewhere. As indicated previously, these persons have their citizenship status protected and guaranteed by the first sentence of the 14th Amendment to the U.S. Constitution. (PART 2 of this series will discuss why this citizenship distinction is of vital importance in developing the basis for a compelling state interest and provides sound justification for the insertion of Native Rights in the local constitution.).
Persons acquainted with law will confirm the point that different laws or sources of law carry different weights legally. The highest source of law is the U.S. Constitution. Supreme Court Justices use the Constitution to determine whether an act of Congress or some decision of the Executive Branch is legal or not. Other Court rulings and Congressional Acts are next in terms of rank. Therefore, citizenship granted by the highest law in the land, (i.e. by the U.S. Constitution), is superior to citizenship granted by a law carrying lesser weight, (i.e. by congressional acts), which can be changed much more easily.
(One Supreme Court Justice who made reference to this difference between citizenship granted by the 14th Amendment to persons born in the U.S., and that granted by congressional statute to persons living in territories, is Justice Brown. *See footnote 1 in APPENDIX A at the end of this article).
Now let us examine the citations from the Nationality Act. For you readers with inquiring minds, I deliberately omitted the first subsection, because it only addressed the former Danish Citizens who were living in these islands. Their status never was and is not at issue here. So I began with #2 to show you that the Congress recognized that there were large numbers of people living here, who were not Danes but had no nationality, and could not claim any other place as their native land. The specific reference to this fact is underlined in the citations below.
(2) All natives of the Virgin Islands of the United States who, on January 17, 1917, resided in those islands, and were residing in those islands or in the United States or Puerto Rico on February 25, 1927, and who were not on February 25, 1927, citizens or subjects of any foreign country;
(3) All natives of the Virgin Islands of the United States who, on January 17, 1917, resided in the United States, and were residing in those islands on February 25, 1927, and who were not on February 25, 1927, citizens or subjects of any foreign country; and
(4) All natives of the Virgin Islands of the United States who, on June 28, 1932, were residing in continental United States, the Virgin Islands of the United States, Puerto Rico, the Canal Zone, or any other insular possession or territory of the United States, and who, on June 28, 1932, were not citizens or subjects of any foreign country, regardless of their place of residence on January 17, 1917.
(b) All persons born in the Virgin Islands of the United States on or after January 17, 1917, and prior to February 25, 1927, and subject to the jurisdiction of the United States are declared to be citizens of the United States as of February 25, 1927; and all persons born in those islands on or after February 25, 1927, and subject to the jurisdiction of the United States, are declared to be citizens
of the United States at birth.
-SOURCE-(June 27, 1952, ch. 477, title III, ch. 1, Sec. 306, 66 Stat. 237.)
The preceding should clear up the principal source and the legal validity for the term and definition of a “Native Virgin Islander”. The salient qualifications for nativity or indigenousness delineated in the act are worth repeating. They are those natives who “…were not citizens or subjects of any foreign country, regardless of their place of residence on January 17, 1917.” Therefore, a child of a Dane, an Irish person, or an English person was not considered “Native” in the view of the congressional acts that conferred citizenship en masse to Virgin Islanders, because he/she could claim the citizenship status of at least one of his/her parents. Authentic natives, (whom we renamed as “Ancestral Native Virgin Islanders” in the fifth constitutional draft), are those who could not claim citizenship in any country whatsoever. Therefore they must be considered as indigenous to the Virgin Islands upon the arrival and takeover of this territory by the United States Government, just as the Pre-Columbian Inhabitants who Christopher Columbus met here 424 years earlier are considered indigenous since he met them here.
The point being made above is a subtle but not a small one because several persons want to equate being an indigene with being an aboriginal inhabitant. The persons to whom we have given the designation “Ancestral Native Virgin Islander, or Native Virgin Islander, are not the “aboriginal Native Virgin Islanders or the “first Virgin Islanders” as the Ciboneys and their descendants are considered to be. However, that does not make them any less indigenous. One does not have to be among the first inhabitants to be indigenous. One only has to be from a place without being able to claim citizenship or nationality in any other place to be considered such. However one must be among the first inhabitants to be aboriginal. The critical point is that the terms are not synonymous as some persons seem to be contending.
Additionally, the U.S. Constitution and federal statutes also show why natives do not have the same citizenship status as persons born or naturalized in a state or on a U.S. military base. Persons who disagree should take up this issue with Congress. However, if one still has doubts, about what Congress decided in 1927 and 1940, the U.S. had already recognized this specific group of “Native Virgin Islanders”, in the Treaty of Cession with Denmark in 1917. After granting Danish citizens the right to choose whether they wanted to remain Danes or become U.S. citizens, in the first part of Article 6, the second to the last paragraph of that article indicated that Congress shall determine the civil rights and political status of the “inhabitants of the islands.”
Now if all persons residing in the islands were Danes, or foreigners, (such as the British, Irish and Scottish planters and business persons, etc.), there would not have been any need for a paragraph that singled out a group of persons that did not fall into either of these two categories because they could not claim to be citizens of Denmark or of any other country.
I concede that the use of the term “inhabitants” in the Treaty of Cession between Denmark and the U.S.A. is ambiguous and could also include Danes and other foreign citizens who chose to remain in the Virgin Islands and renounce their citizenship. However the point is that these persons were granted the right to voluntarily keep or relinquish their citizenship status. No such discretion was provided to the “non-citizen Natives.” Therefore, it is my position that the term “inhabitants” automatically referred to those persons who had no other nationality or belonged to no other place but to the Virgin Islands. Hence, it is only logical to conclude that these should be referred to as the “Native Virgin Islanders” at the beginning of U.S. rule in the V.I.
As mentioned previously, persons have pointed out that nobody living here today or any of their direct ancestors is a true “Native Virgin Islander”. Such a designation should be reserved for the Indigenous Americans who migrated here before Columbus. Nevertheless, it is not wrong to use the term “Native Virgin Islander” to refer to the descendants of people, who were brought here either from Africa, or who migrated here from other Caribbean islands, and were living here when the U.S. took control from Denmark. First, those who came from Africa were not recognized as “citizens by either Europeans or Americans. They were not even considered to be fully human. That is why their enslavement and inhumane treatment could be justified. Remember further that Caucasians did not consider places in Africa as “countries”, much less as “civilized countries” from a European/American point of view.
Second, those persons who came here from our neighboring islands were most likely subjects of their European colonizer, and therefore non-citizens in those colonies. These people were not “citizens” of any country during Danish rule, and for the first time were made “citizens” of any place in 1927. Therefore, the definition of Ancestral Native Virgin Islander placed in the Fifth Constitutional Draft document includes these persons and their descendants as well as those persons who were actually born here and met the other criteria alluded to before. Wouldn’t be ironic if persons who are arguing against the native definitions conduct some research and find out that they also qualify due to the expanded and inclusive nature of the definition being proposed by constitutional convention delegates?
Yes, this group of people is not the “aboriginal” group of inhabitants of these islands. Historians and archaeologists have clearly shown that the pre-ceramic people (also known as the Ciboneys), settled here as far back as 2,000 B.C., and are the “first” “Native Virgin Islanders”. However, Scholars have likewise uncovered evidence that points to the existence of African settlements on St. John and maybe on St. Thomas before the arrival of Europeans. African skeletons found at Hull Bay on St. Thomas, and rock drawings of African symbols at Reef Bay on St. John, are two possible examples of Pre-Columbian African presence here. So who came here first? Who are the true aboriginal Virgin Islanders? In justifying the designation of the “non-citizen” persons whom the U.S.A. met here in 1917 as Native Virgin Islanders, it does not matter whether Africans or Persons from South America came here first. What does matter is that the majority of persons referred to as “inhabitants” in the 1917 Treaty of Cession between the U.S.A. and Denmark, as well as those referred to as natives who were not citizens or subjects of any foreign country, in the 1927, and 1940 nationality Acts, are “Native Virgin Islanders” by virtue of the fact that they were from these islands and had no “legal” claim of nativity, cizenship or allegiance to any other place.
Appendix A
Footnotes
1. “Upon the other hand, the 14th Amendment, upon the subject of citizenship, declares only that 'all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States, and of the state wherein they reside.' Here there is a limitation to persons born or naturalized in the United States, which is not extended to persons born in any place 'subject to their jurisdiction.' “ (Downes v. Bidwell, 1901)
__________________________________________________________________________________
PART I. Historical and Legal Bases for the Definition of a Native Virgin Islander
by Gerard M. Emanuel
Prior to the constitutional convention in the Virgin Islands of the U.S.A., discussions about the definition of a “Native Virgin Islander” and that of a “Virgin Islander” resurfaced on radio talk shows and in editorials in local papers. These discourses prompted the writing of this series of essays entitled “The Native Papers”. It will hopefully provide some of the historical and legal rationale for the viewpoints and outcries of conscious Native Virgin Islanders who base their positions on facts, history, context and law. Specifically it will focus on acknowledging, providing the justification for and respecting the exclusive right of VI indigenes to participate on their own in determining their civil rights, form of government and political status. Natives have never been granted the right to do these things as natives without outside interference. Outside interference includes authorizing anyone who is not a native to participate in constitutional drafting, status and self-determination processes including plebiscites and referenda.
The historical records will verify that in the past, first the colonizers decided these matters for natives. When natives were allowed to participate, their vote and intent were circumvented because the decision-making processes always included all of the people in the Virgin Islands who could qualify to vote in regular elections. Included in this group of non-natives are members of the colonizers from the U.S. mainland. It is clearly contradictory and a violation of international law to allow non-native Virgin Islanders who are citizens of the colonizing or “Administering” power to participate in the fundamental political exercises of the People of an Unincorporated Territory, or colony. Two examples of such activities are constitutional reform, and political status determination. It is our contention that some of these persons should not have been allowed to participate if these acts were to be considered as authentic exercises in self-determination by the People of the Virgin Islands, who are the ones discriminated against in the treaty of Cession between Denmark and the U.S.A. in 1917, and during the first 14 years of military rule in the V.I., WE HOLD THAT THERE EXISTS A CLEAR DISTINCTION BETWEEN THE PEOPLE OF AND THE PEOPLE IN THE VIRGIN ISLANDS.
The former are the natives and their descendants who were purchased along with the property by the United States, (in clear violation of the 13th and 14th amendments to the U.S. Constitution, as well as the 1848 and 1863 Emancipation Proclamations by Denmark and the U.S.A. respectively). The latter are those who came afterwards, or were here during the transfer of the islands from Denmark to the U.S.A. but were expressly or implicitly given the option of keeping their citizenship or accepting U.S. citizenship. The People of the Virgin Islands, (who are the natives), were not given this privilege or right. This initial article will provide some of the citations in U.S. federal legal documents that created the definition of a Native Virgin Islander, and put to rest the assertions that the are the creation of a few radical and racist “Native Virgin Islanders” who want to “deny the fundamental rights” of other residents here.
Federal legal documents will also be cited to show that all U.S. Citizens living in the U.S. Virgin Islands are not all “equally American”. Some persons have suggested that to consider the “people of the Virgin Islands” to be something other than “Americans” is racially discriminatory, since this is an American territory and we are all equally “American”. Others point out that nobody living here today or any of their direct ancestors is a true “Native Virgin Islander”. Such a designation should be reserved for the Indigenous Americans who migrated here before Columbus.
None of these statements is accurate. First, we are not all “merely” or “equally” American. Even if we were to accept this claim, the U.S. Government always does something to illustrate that such is not the case. For example, according to reliable reports, the U.S. military, after hurricane Hugo ravaged the V.I. in 1989, indicated that it was sent here with the express purpose of “securing and saving U.S. Citizens or Americans”? What occurred however, was that the military primarily looked for Caucasians living in the Virgin Islands. If we are all equally American, why were the majority of “U.S. Citizens” living here, who are of African and Hispanic descent, who also lost their homes and required assistance, not sought and treated equally favorably? Apparently in this instance, “U.S. citizens” or “Americans” were simply euphemisms for Caucasians living in the Virgin Islands.
Native Virgin Islanders did not create race consciousness or racial and ethnic distinctions. The U.S. Government did so with its policies before, during and after the U.S. Constitution was framed and approved. It denied certain rights to women, most Africans and the indigenous American population. It was eventually forced by a war to grant some of these rights to most Americans, with the passage of Civil War Amendments. Nevertheless the U.S. Constitution and other U.S. law still do not extend to, protect and treat all U.S. Citizens equally.
When the U.S. acquired its outlying possessions, at the end of the 19th century, it continued to unfairly discriminate against persons of color as had been the pattern with Africans inside of the U.S. during and after slavery. The pretext this time was that certain “rights and privileges” in the U.S. Constitution, were peculiar to “Americans” and therefore “nonessential” for the protection of persons in the “outlying” territories to obtain. Two of these were full U.S. Citizenship, and trial by jury.
If anyone is to be charged with discriminating based on race and ethnicity, it is clearly the U.S. government even on the Supreme Court at the turn of the 20th century and in some earlier cases, such as the infamous Dred Scott Decision of 1857. Furthermore, the U.S. officials who authored the Treaty of Cession with Denmark also unfairly discriminated based on race, nationality and ethnicity. This article and its sequel will provide the documentation for these assertions. (See citations below):
United States Statute
8 USC Sec. 1406
-EXPCITE-
TITLE 8 - ALIENS AND NATIONALITY
CHAPTER 12 - IMMIGRATION AND NATIONALITY
SUBCHAPTER III - NATIONALITY AND NATURALIZATION
Part I - Nationality at Birth and Collective Naturalization
-HEAD-
Sec. 1406. Persons living in and born in the Virgin Islands
The Insular Cases, 182 US 244 (1901), Downes v. Bidwell, comments by Justices Brown and White and 182 U.S. 1, De Lima v. Bidwell 1901
In U.S. Statutes or in the congressional acts cited above, the term, “Native Virgin Islander”, was not specifically used. However, a careful reading of the above cited documents will clearly indicate that the terms employed, meant those people who were living here at the time of the transfer of these islands from Denmark to the U.S.A., who could not claim to be a citizen or native of any other place but the Virgin Islands. This was the majority of “non-white” residents.
Let us now examine a few statements from Section 1406 of the 1940 Nationality Act. This act of Congress amended a previous Act, (44 Stat. 1234 1927), which had made Virgin Islanders U.S. Citizens by statute, by making them citizens at birth. However, before looking at the citations from the 1940 Act, it should be made clear that irrespective of how Congress provided U.S. Citizenship to Native Virgin Islanders, citizenship granted by Congress does not have the same legal authority as citizenship that is guaranteed by the U.S. Constitution. This is another legal reason why all “U.S. Citizens” living in the Virgin Islands, are not “all equally American.” Persons who were born in one of the 50 states, or on a U.S. military base in any part of the world, are natural-born U.S. Citizens, and are all equally “American” pursuant to the 14th Amendment to the U.S. Constitution. Also, persons who are naturalized, are granted U.S. Citizenship by the 14th amendment to the U.S. Constitution and thus receive the same constitutional protection of their Citizenship status as U.S. Citizens who are born in a state or on a military base receive. (See the applicable part of the first sentence of the 14th Amendment below).
1: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States…”
Both of these sets of U.S. Citizens may not be aware of this discriminatory privilege they have been granted, that persons born in the Virgin Islands or in another Unincorporated Territory do not have. This is another reason why we are not all “equally American” here in the U.S. Virgin Islands. Any Congress can pass an act to sell the Virgin Islands and take away the current right of persons born in these islands to be U.S. Citizens at birth. Conversely, neither Congress nor the Supreme Court can do this to persons whose basis for receiving U.S. Citizenship is the 14th Amendment to the U.S. Constitution.
Therefore, Native Virgin Islanders are not “similarly situated” with persons born in a state who have migrated here as U.S. Citizens, or with those who were naturalized either here or elsewhere. As indicated previously, these persons have their citizenship status protected and guaranteed by the first sentence of the 14th Amendment to the U.S. Constitution. (PART 2 of this series will discuss why this citizenship distinction is of vital importance in developing the basis for a compelling state interest and provides sound justification for the insertion of Native Rights in the local constitution.).
Persons acquainted with law will confirm the point that different laws or sources of law carry different weights legally. The highest source of law is the U.S. Constitution. Supreme Court Justices use the Constitution to determine whether an act of Congress or some decision of the Executive Branch is legal or not. Other Court rulings and Congressional Acts are next in terms of rank. Therefore, citizenship granted by the highest law in the land, (i.e. by the U.S. Constitution), is superior to citizenship granted by a law carrying lesser weight, (i.e. by congressional acts), which can be changed much more easily.
(One Supreme Court Justice who made reference to this difference between citizenship granted by the 14th Amendment to persons born in the U.S., and that granted by congressional statute to persons living in territories, is Justice Brown. *See footnote 1 in APPENDIX A at the end of this article).
Now let us examine the citations from the Nationality Act. For you readers with inquiring minds, I deliberately omitted the first subsection, because it only addressed the former Danish Citizens who were living in these islands. Their status never was and is not at issue here. So I began with #2 to show you that the Congress recognized that there were large numbers of people living here, who were not Danes but had no nationality, and could not claim any other place as their native land. The specific reference to this fact is underlined in the citations below.
(2) All natives of the Virgin Islands of the United States who, on January 17, 1917, resided in those islands, and were residing in those islands or in the United States or Puerto Rico on February 25, 1927, and who were not on February 25, 1927, citizens or subjects of any foreign country;
(3) All natives of the Virgin Islands of the United States who, on January 17, 1917, resided in the United States, and were residing in those islands on February 25, 1927, and who were not on February 25, 1927, citizens or subjects of any foreign country; and
(4) All natives of the Virgin Islands of the United States who, on June 28, 1932, were residing in continental United States, the Virgin Islands of the United States, Puerto Rico, the Canal Zone, or any other insular possession or territory of the United States, and who, on June 28, 1932, were not citizens or subjects of any foreign country, regardless of their place of residence on January 17, 1917.
(b) All persons born in the Virgin Islands of the United States on or after January 17, 1917, and prior to February 25, 1927, and subject to the jurisdiction of the United States are declared to be citizens of the United States as of February 25, 1927; and all persons born in those islands on or after February 25, 1927, and subject to the jurisdiction of the United States, are declared to be citizens
of the United States at birth.
-SOURCE-(June 27, 1952, ch. 477, title III, ch. 1, Sec. 306, 66 Stat. 237.)
The preceding should clear up the principal source and the legal validity for the term and definition of a “Native Virgin Islander”. The salient qualifications for nativity or indigenousness delineated in the act are worth repeating. They are those natives who “…were not citizens or subjects of any foreign country, regardless of their place of residence on January 17, 1917.” Therefore, a child of a Dane, an Irish person, or an English person was not considered “Native” in the view of the congressional acts that conferred citizenship en masse to Virgin Islanders, because he/she could claim the citizenship status of at least one of his/her parents. Authentic natives, (whom we renamed as “Ancestral Native Virgin Islanders” in the fifth constitutional draft), are those who could not claim citizenship in any country whatsoever. Therefore they must be considered as indigenous to the Virgin Islands upon the arrival and takeover of this territory by the United States Government, just as the Pre-Columbian Inhabitants who Christopher Columbus met here 424 years earlier are considered indigenous since he met them here.
The point being made above is a subtle but not a small one because several persons want to equate being an indigene with being an aboriginal inhabitant. The persons to whom we have given the designation “Ancestral Native Virgin Islander, or Native Virgin Islander, are not the “aboriginal Native Virgin Islanders or the “first Virgin Islanders” as the Ciboneys and their descendants are considered to be. However, that does not make them any less indigenous. One does not have to be among the first inhabitants to be indigenous. One only has to be from a place without being able to claim citizenship or nationality in any other place to be considered such. However one must be among the first inhabitants to be aboriginal. The critical point is that the terms are not synonymous as some persons seem to be contending.
Additionally, the U.S. Constitution and federal statutes also show why natives do not have the same citizenship status as persons born or naturalized in a state or on a U.S. military base. Persons who disagree should take up this issue with Congress. However, if one still has doubts, about what Congress decided in 1927 and 1940, the U.S. had already recognized this specific group of “Native Virgin Islanders”, in the Treaty of Cession with Denmark in 1917. After granting Danish citizens the right to choose whether they wanted to remain Danes or become U.S. citizens, in the first part of Article 6, the second to the last paragraph of that article indicated that Congress shall determine the civil rights and political status of the “inhabitants of the islands.”
Now if all persons residing in the islands were Danes, or foreigners, (such as the British, Irish and Scottish planters and business persons, etc.), there would not have been any need for a paragraph that singled out a group of persons that did not fall into either of these two categories because they could not claim to be citizens of Denmark or of any other country.
I concede that the use of the term “inhabitants” in the Treaty of Cession between Denmark and the U.S.A. is ambiguous and could also include Danes and other foreign citizens who chose to remain in the Virgin Islands and renounce their citizenship. However the point is that these persons were granted the right to voluntarily keep or relinquish their citizenship status. No such discretion was provided to the “non-citizen Natives.” Therefore, it is my position that the term “inhabitants” automatically referred to those persons who had no other nationality or belonged to no other place but to the Virgin Islands. Hence, it is only logical to conclude that these should be referred to as the “Native Virgin Islanders” at the beginning of U.S. rule in the V.I.
As mentioned previously, persons have pointed out that nobody living here today or any of their direct ancestors is a true “Native Virgin Islander”. Such a designation should be reserved for the Indigenous Americans who migrated here before Columbus. Nevertheless, it is not wrong to use the term “Native Virgin Islander” to refer to the descendants of people, who were brought here either from Africa, or who migrated here from other Caribbean islands, and were living here when the U.S. took control from Denmark. First, those who came from Africa were not recognized as “citizens by either Europeans or Americans. They were not even considered to be fully human. That is why their enslavement and inhumane treatment could be justified. Remember further that Caucasians did not consider places in Africa as “countries”, much less as “civilized countries” from a European/American point of view.
Second, those persons who came here from our neighboring islands were most likely subjects of their European colonizer, and therefore non-citizens in those colonies. These people were not “citizens” of any country during Danish rule, and for the first time were made “citizens” of any place in 1927. Therefore, the definition of Ancestral Native Virgin Islander placed in the Fifth Constitutional Draft document includes these persons and their descendants as well as those persons who were actually born here and met the other criteria alluded to before. Wouldn’t be ironic if persons who are arguing against the native definitions conduct some research and find out that they also qualify due to the expanded and inclusive nature of the definition being proposed by constitutional convention delegates?
Yes, this group of people is not the “aboriginal” group of inhabitants of these islands. Historians and archaeologists have clearly shown that the pre-ceramic people (also known as the Ciboneys), settled here as far back as 2,000 B.C., and are the “first” “Native Virgin Islanders”. However, Scholars have likewise uncovered evidence that points to the existence of African settlements on St. John and maybe on St. Thomas before the arrival of Europeans. African skeletons found at Hull Bay on St. Thomas, and rock drawings of African symbols at Reef Bay on St. John, are two possible examples of Pre-Columbian African presence here. So who came here first? Who are the true aboriginal Virgin Islanders? In justifying the designation of the “non-citizen” persons whom the U.S.A. met here in 1917 as Native Virgin Islanders, it does not matter whether Africans or Persons from South America came here first. What does matter is that the majority of persons referred to as “inhabitants” in the 1917 Treaty of Cession between the U.S.A. and Denmark, as well as those referred to as natives who were not citizens or subjects of any foreign country, in the 1927, and 1940 nationality Acts, are “Native Virgin Islanders” by virtue of the fact that they were from these islands and had no “legal” claim of nativity, cizenship or allegiance to any other place.
Appendix A
Footnotes
1. “Upon the other hand, the 14th Amendment, upon the subject of citizenship, declares only that 'all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States, and of the state wherein they reside.' Here there is a limitation to persons born or naturalized in the United States, which is not extended to persons born in any place 'subject to their jurisdiction.' “ (Downes v. Bidwell, 1901)
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