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.

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.