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
Part I - Nationality at Birth and Collective Naturalization

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


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)