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Proceedings:
Conference
on the
FUTURE
POLITICAL
STATUS
of the
UNITED
VIRGIN
DEPOSiTO R'
DEC ) 1991
ENiD M. BAA LIBRARY
i,. Thomas, U.S. Virein Islaar
STATES
ISLANDS
Proceedings:
Conference
on the
FUTURE
POLITICAL
STS UNIVERSITY OF THE VIRGIN ISLANDS
ST. CROIX
of the
UNITED STATES
VIRGIN ISLANDS
at the University of the Virgin Islands
OFV THE St. Thomas Campus, U.S. Virgin Islands
February 26 and 27, 1988
W EDITED BY DR. PAUL M. LEARY
DIRECTOR, BUREAU OF PUBLIC ADMINISTRATION
UNIVERSITY OF THE VIRGIN ISLANDS
'1 2 Funded in part by a grant from the Virgin Islands Humanities Council.
Division of State Programs. National Endowment of the Humanities.
027815
UNIVERSITY OF THE VIRGIN ISLANDS OFFICIALS
Mr. Ralph M. Paiewonsky, Chairman of the Board of Trustees
Dr. Arthur A. Richards, President
Dr. Orville Kean, Executive Vice-President
Dr. William P. MacLean, Academic Vice-President
MEMBERS OF THE COMMUNITY ADVISORY PANEL
Attorney Edith Bornn
Gerard Emanuel
Philip Gerard
Dr. Donna Green
Dr. Orville Kean
Dr. Lucien Moolenaar
Dr. Roderick Moorehead
Dr. Patricia Murphy
Dr. LaVerne Ragster
Rupert Ross
Attorney Fred Vialet, Jr.
CONFERENCE DIRECTOR
Dr. Paul M. Leary
Bureau of Public Administration
University of the Virgin Islands
Copyright ( 1989 University of the Virgin Islands
CONTENTS
INTRODUCTION
PANELS AND PANELISTS
OPENING REMARKS
PANEL I Commonwealth or Compact?
PANEL II The Status of Free Association
PANEL III The Statehood Status
PANEL IV The Independence Status
PANEL V The Future Political Status
of the U.S. Virgin Islands
CONCLUDING REMARKS
PAPERS PRESENTED AT THE CONFERENCE
Compact of Federal Relations
From Territory to State: The Historical Record,
The Constitution and Unincorporated Territories Today
Free Association A Critical View
The Supranational Union: An Evolving Model of
Statehood for Twenty-First Century America
The Historical Development of Free Association
Status in the Pacific and the Caribbean
Free Association
Legal and Historical Aspects of the Puerto Rican
Independence Movement in the Twentieth Century
The Virgin Islands as a State of the Union
Sen. Lorraine L. Berry
Dr. William W. Boyer
Dr. Roger Clark
Atty. Luis R. Davila-Colon
Dr. Paul Leary
Atty. Marco Antonio Rigau
Dr. Manuel Rodriguez-Orellana
Atty. Fred Vialet, Jr.
INTRODUCTION
On February 26-27, 1988, the third conference addressing the political status of the Virgin Islands sponsored
by the University of the Virgin Islands was held in St. Thomas. Unlike the previous two conferences, which
were primarily academic in significance, this meeting had an important public policy impact. There was also a
sense, among panelists and audience alike, that political status was a concept whose time had come--or was at
least rapidly approaching--for the Virgin Islands.
When planning for the conference was initiated in June, 1987, the organizing board, drawn from the
St. Thomas-St. Croix communities, was concerned about its possible appeal and impact. At the time, interest in
status appeared minimal among both policy makers and the general public. A Select Committee on Status and
Federal Relations of the Virgin Islands Legislature had been established in 1984. While it held hearings and
issued a report calling for a referendum on status options, little had been done to implement the panel's
recommendation. Similarly, a 1980-81 Status Commission had terminated its work without any significant
results. In short, it seemed an inauspicious time to be planning a conference on the subject. The conference
organizers, however, were convinced that the topic of political status was central to the life of the Territory and
intimately connected with such issues as its development, demography and ultimate destiny. On the basis of
that conviction--and the hope that the conference would persuade others that it was well-founded--planning
proceeded. Thanks to a successful application for a grant from the Virgin Islands Humanities Council, and the
support of the administration of the University of the Virgin Islands, funds were secured to hold the meeting.
While the organizing effort was continuing in a low-key manner, a political controversy erupted
related to the issue of status. Senator Lorraine Berry, the chairperson of the Select Committee on Status and
Federal Relations of the Fifteenth Legislature, and the major public figure identified with the issue of political
status, introduced a bill calling for the implementation of the Select Committee Report. Specifically, she
wanted a referendum held on status options in November, 1988. Senator Berry's bill was challenged by the
Virgin Islands Delegate to Congress, Ron DeLugo. His publicly expressed concern was that 1988 was too soon
to educate the public effectively on the complexities of status so as to have a meaningful vote. A spate of
accusations and counter-accusations from both parties received prominent coverage in the local press. One
unintended result was that the conference began to receive a degree of attention that eliminated previous
concerns about an inattentive public.
By the time the meeting on status was held in late February, public and press attention was
unprecedented for the previously "academic" issue of political status. Much of the meeting was carried live on
local radio and received front-page press treatment. The final evening panel was taped by the public television
station and re-broadcast several times.
The structure of the conference itself was purposely designed both to maximize public impact and to
provide a balanced counterpoint of opinion. Four panels addressed the major status options of commonwealth
or compact, free association, statehood and independence. The fifth panel, held during the last evening of the
conference, specifically addressed the issue of the future political status of the Virgin Islands and featured the
top political leadership of the Territory. The panels on status options were composed of a mixture of academic
experts, political representatives, and advocates of a variety of viewpoints. Each session was structured to
provide brief, extemporaneous remarks by the panelists, followed by a period of interchange among them and,
subsequently, the audience. Although it was not possible to capture the audience participation in this
transcript, it provided some of the liveliest moments of the conference.
The first panel on commonwealth or compact addressed a fundamental aspect of the Virgin Islands'
current status of unincorporated territory. As Arnold Leibowitz pointed out in his presentation, the territorial
status in the Constitution was meant to be temporary and designed only to provide a transition to statehood.
With the acquisition of overseas areas following the Spanish-American War of 1898, and the subsequent
judicial doctrine of "unincorporation" enunciated in the Insular Cases, the situation was transformed. A new
category of territory--the "unincorporated"--was created. It was placed in an inherently unequal relationship
to the rest of the United States, subject indefinitely to the plenary power of Congress and denied full and equal
political representation. A form of political limbo was created which has become increasingly anomalous in an
era of nationalism and decolonization. The status of unincorporated territory also carried with it the stigma of
racism, as Professor William Boyer noted in his comments during the panel on Statehood: "So I think that the
doctrine was rooted in bigotry and racism and that in itself should be enough to question the perpetuation of so-
called unincorporated status".
One controversial alternative to unincorporated status is that of commonwealth. The dispute
concerning this status revolves around the question of whether it is simply an unincorporated territory with a
different name--or, indeed, whether it is a meaningful label at all. There is also the on-going dispute in Puerto
Rico concerning the meaningfulness of this status, to which has now been added the Northern Marianas' claims
that, despite Congressional and Interior Department attitudes, their covenant with the United States grants
more rights and autonomy than that of unincorporated territory. In this respect, the discontents expressed by
Representative Froilan Tenorio with the interpretation of the Marianas Commonwealth by the United States
are instructive.
Finally, added to the complexities of the commonwealth issue is the entrance of Guam into this status
dispute with its proposed commonwealth. As former ambassador Peter Rosenblatt observed in his presentation
on the topic, the outcome of this controversial legislation, particularly the special place it provides for the
indigenous people of Guam, will be very important to the Virgin Islands, as it will set a significant
Congressional precedent. Given the confusion associated with commonwealth, it is not surprising that Senator
Berry, in her remarks, advocated a compact that would be negotiated with the United States on the basis of
specific functional areas of concern to the Virgin Islands, without any prior labels being attached. Once the
final form of the agreement was set, then a decision could be made as to what name should be applied to it.
Whether this approach effectively circumvents the matter of the limits to negotiations set by a status
framework such as commonwealth is itself subject to debate.
The panel on free association was characterized by vigorous disagreement regarding the legitimacy of
this status as represented by the agreements reached between the United States and the Pacific entities of the
Marshall Islands, the Federated States of Micronesia, and Palau. Roger Clark, a vigorous critic of this
arrangement, denounced it as analogous to a "voluntary" agreement to enter into slavery, prostitution or
surrogate motherhood. He quoted with approval a New Jersey court opinion that held: "... there are, in a
civilized society, some things money cannot buy. In America we decided long ago that merely because conduct
purchased by money was 'voluntary' does not mean that it is good or beyond regulation or prohibition". As
might be expected, exception was taken to this characterization by Peter Rosenblatt who, as the President's
Special Representative, helped to negotiate the free association arrangement. In his rebuttal, Rosenblatt
observed concerning the Micronesians' freedom of action in selecting free association: "I believe, to a moral
certainty, that they understood what they were getting into and that they chose it freely". What was
remarkable about the discussion between Clark and Rosenblatt--and what was remarkable about the debate
and disagreement that emerged in other sessions as well--was that it was not rancorous or vituperative. It was
a good sign that status discussions need not degenerate into divisiveness and hostility, even when they touch on
very fundamental issues.
The question of whether free association is any more of a permanent solution to unincorporated
territory status for the Virgin Islands than commonwealth was raised in the panels on statehood and
independence. Here the consensus was reached that, in reality, there are only two ways to effectively end the
unequal status of territory. One is integration into the Union as a state. The other is final separation and
acquisition of sovereign independence.
In the statehood panel the most eloquent presentation of the statehood option was made by Attorney
Davila-Colon of Puerto Rico, editor of a definitive two-volume work on that status. Davila-Colon argued that
there are no constitutional impediments to statehood for the Virgin Islands--only political ones. He further
contended that the ostensible reasons given to deny statehood to places like the Virgin Islands, such as small
population and inadequate resources, are merely excuses to disguise opposition to admitting an area with the
islands' racial and cultural mix. In concluding, Davila-Colon cautioned: "...beware of the perennial merchants
of halfway house colonial formulas such as commonwealths, compacts, super compacts, free associations, for
they will try to sell our peoples anything short of granting full equality within the nation or full independence
outside of it".
The independence side of the decolonization options proposed by Davila-Colon was examined in the
final day panel. Here again a representative from Puerto Rico, Manuel Rodriguez-Orellana, made the
strongest case for this status. Indeed, all three representatives from the Virgin Islands' Caribbean neighbor
made forceful presentations, as the contribution of Marco Rigau to the free association panel was substantial as
well. In this light, it is apt that Rodriguez-Orellana quoted Robert Frost's comment that when people look out
to sea, they seldom look out far and never look in deep. Given the long experience that Puerto Rico has had
with debating the multi-faceted issue of political status, this attitude may serve the Virgin Islands well--it need
not look too far, or too deep if it needs further expert advice on the matter.
While Rodriguez-Orellana, as the U.S. representative of the Puerto Rican Independence Party, served as an
effective advocate for his position, this panel was characterized by the sort of balance and variety of viewpoints that
made the presentations so stimulating. Dr. Assyl Warner, an official of a newly independent Eastern Caribbean nation
and an alumni of the University of the Virgin Islands, gave a realistic view of the advantages and disadvantages of this
status. With the sense of pride and control that it brings, there is also the need to make your own way and face the
considerable financial problems entailed. Given the implications of independence, Warner called for a non-partisan
national movement to educate people about status changes before entering into them.
Another dimension to the independence issue was provided by Dr. Carlyle Corbin, who has
represented the Virgin Islands as part of the U.S. Mission to the United Nations. In addition to noting the
important international dimensions of the Virgin Islands status issue, Dr. Corbin suggested that there are
regional models of association with overseas powers that have heretofore been largely overlooked.
Finally, Gene Emanuel of the University of the Virgin Islands provided a critique of the conference
itself as well as a spirited defense of independence for the Virgin Islands. From Emanuel's point of view, the
conference failed to be inclusive enough, slighted St. John and St. Croix, and did not reach the average person
who would be most affected by status changes. Emanuel's criticisms were quite apt for a conference
characterized throughout by vigorous and open debate, in which all points of views were given a hearing.
One viewpoint, however, could fairly claim to have been overlooked in the organization of the
conference. That was the position of those favoring the status quo. When the conference was being planned,
the main intent was to explore alternatives to the existing unincorporated territorial status. As a result, a panel
to consider the pros and cons of maintaining the present relationship with the United States was not considered.
If this was an oversight, it was remedied by the final evening session. Originally designed to provide an
opportunity for the political leadership to comment on the future possibilities presented in the earlier panels, it
unexpectedly served as a forum in which all four speakers independently came to the conclusion that
modification of the present status was the most appropriate option at this time.
The Governor of the Virgin Islands, Alexander Farrelly, called for a functional approach. The Virgin
Islands, he held, should identify specific areas where more local power was needed and discuss them with
Congress, rather than focus on a status label. He identified customs, immigration, international affairs and
natural resources as possible subjects for consideration.
Former Governor Ralph Paiewonsky outlined in detail the advantages enjoyed by the Virgin Islands as
a result of its present status, and called for a compact with the United States to preserve them and gain
additional benefits. He strongly supported a continuation of the present close relationship with America, and
saw statehood only as a possible long-term objective.
The most emotional defense of the current close association with the United States came from Senate
President Stridiron. In his words:
My option, the option I believe that the vast majority of Virgin Islanders will
opt for when the matter comes to a referendum, is the status quo. And the
status quo being an unincorporated territory. That doesn't mean that we
stop all efforts which are currently ongoing to improve the manner in which
we address our internal affairs; it doesn't mean that at all. But it means that
all those matters can be addressed utilizing the very same status that we have
now.
In his remarks, Congressional Delegate DeLugo was most concerned about a rush to judgment on the
status issue. He urged a considerable educational effort to ensure that Virgin Islanders were fully informed
before being asked to make a status decision. DeLugo also cautioned, as did several speakers in previous
panels, about the potential divisiveness that status debate can bring to a community. Given these
considerations, he strongly opposed a November, 1988 date for a referendum.
If, at the beginning of the planning process, it appeared that a conference on political status might be
met with an apathetic response, it was clear by the end of the meeting that, if nothing else, the time for serious
discussion of that topic had arrived. Not only did the conference dominate news coverage during this period,
but each session was fully attended, and the audience included many community opinion leaders. At the
conclusion of the conference, fifty requests were received for papers presented, in addition to the scores of
copies distributed at the event itself.
The conference also transcended the usual academic limits of such gatherings. One immediate result was
that Senator Berry introduced an amendment to the proposed referendum to delay it until November, 1989, so as to
allow sufficient time for public education. Another consequence of the meeting was that the University of the Virgin
islands was recommended as the best agent to conduct the extensive public education that will be required. Hence, for
the first time in history, the people of the Virgin Islands will be provided the opportunity to debate and discuss, over a
prolonged period, the question of status, and then to indicate their preference. Inasmuch as the conference on the
future political status of the U.S. Virgin Islands served as a catalyst for that public policy process, it may have
acquired a small historical role as well. If the University of the Virgin Islands is given the responsibilities for public
education on this critical issue, it must bear in mind the seriousness of its task. In the words of one participant, Dr.
Carlyle Corbin: "Now that the public's attention is being steered towards the status question, let us explore it as
deeply as we can, so that we can make an informed decision. It could prove to be the most important collective
decision we in the Virgin Islands have ever made."
Hopefully, this transcript of the conference will assist in the process of public education. While it
cannot substitute for the give-and-take of the conference itself, particularly since it does not include the
audience question period, it does provide an accurate record of the substance of the remarks made, and their
importance. All panelists were provided an opportunity to review and edit their remarks before publication,
but the changes made were only in the areas of grammar and style. There is also available, through the Bureau
of Public Administration, a complete video tape set of the conference for those who desire to view it in its
entirety.
Finally, this introduction would be lacking if it did not thank all the panelists for their contributions,
the organizing committee for its advice and hard work, the administration of the University of the Virgin
Islands for its support, and the Virgin Islands Humanities Council for the grant that made the meeting possible.
Paul Leary, Director
Bureau of Public Administration
PANELS and PANELISTS
February 26, 1988
OPENING REMARKS
Honorable Derek Hodge, Lt. Governor
United States Virgin Islands
Dr. Arthur A. Richards, President
University of the Virgin Islands
PANEL I: Commonwealth or Compact?
PANELISTS:
Arnold Leibowitz, Legal Scholar. "What Is The Meaning of Commonwealth Status?"
Froilan Tenorio, Representative to the United States of the Northern Mariana Islands. "The
Northern Marianas Covenant: Our Experience Since 1976"
Peter Rosenblatt, Attorney-at-Law, Washington, D.C.; Former U.S. Ambassador for
Micronesia Status Negotiations; Former Counsel, Guam Commission on Self-Determination.
"Guam's Proposed Commonwealth"
Lorraine Berry, Senator, Virgin Islands Legislature. "A Compact with the United States"
Moderator: Dr. Roderick Moorehead, University of the Virgin Islands
PANEL II: The Status of Free Association
PANELISTS:
Paul Leary, University of the Virgin Islands. The Historical Development of Free Association in
the Pacific and the Caribbean"
Roger Clark, Rutgers Law School. "A Critical View of Free Association"
Peter Rosenblatt, Attorney-at-Law, Washington, D.C.; Former U.S. Ambassador for
Micronesia Status Negotiations; Former Counsel, Guam Commission on Self-Determination.
"Free Association Negotiations: A Case Study"
PANEL II (Cont.)
Marco Rigau, Author and Attorney: "Free Association as a Status Alternative for Unincorporated
U.S. Territories and Commonwealths"
Marilyn Krigger, University of the Virgin Islands. "Is Free Association the Future Direction for the
U.S. Virgin Islands?"
Moderator: Edith Bornn, Attorney, U.S. Virgin Islands
February 27, 1988
PANEL III: The Statehood Status
PANELISTS'
William Boyer, University of Delaware. "From Territory to State: The Historical Record, the
Constitution, and Unincorporated Territories Today"
Johnny Barnes, Assistant to Congressman Fauntroy of the District of Columbia. "The
District of Columbia Statehood Movement"
Luis R. Davila-Colon, Attorney and Author. "The Statehood Movement in Puerto Rico"
Fred Vialet, Jr., Attorney, U.S. Virgin Islands. "The Virgin Islands as a State of the Union"
Moderator: Laverne Ragster, University of the Virgin Islands
PANEL IV: The Independence Status
PANELISTS:
Assyl Warner, Office of the Prime Minister, St. Kitts/Nevis. "Independence in the Eastern
Caribbean: Implications for the U.S. Virgin Islands"
Carlyle Corbin, Office of the Governor, U.S. Virgin Islands. "Independence and Self-
Determination in an International Context"
Manuel Rodriguez-Orellana, U.S. Representative of the Puerto Rican Independence Party and
Professor of Law, Northeastern University. "The Independence Movement in Puerto Rico"
Gene Emanuel, University of the Virgin Islands. "The Conditions for an Independent U.S.
Virgin Islands"
Moderator: Norwell Harrigan, Political Scientist and Consultant, U.S. Virgin Islands.
PANEL V: The Future Political Status of the U.S. Virgin Islands
PANELISTS:
Governor Alexander Farrelly
Former Governor Ralph M. Paiewonsky
Senate President Iver Stridiron
Congressional Delegate Ron DeLugo
Moderator: Dr. Orville Kean, University of the Virgin Islands
1962
1962
OPENING REMARKS
Dr. Leary Good morning ladies and gentlemen. A warm welcome to the Conference on the Future Political
Status of the Virgin Islands. I want to begin by acknowledging something I think everyone should be aware of,
especially since our comptroller from the Virgin Islands Humanities Council is present, that this conference is
sponsored in large part by a grant provided by the Virgin Islands Humanities Council and matched by the University
of the Virgin Islands. I want to'be sure to express our appreciation to the Humanities Council for their support in this
endeavor. Before we begin the program, we're going to have brief welcoming remarks beginning with the Lieutenant
Governor of the Virgin Islands, now Acting Governor, the Honorable Derek Hodge.
Lt. Gov. Derek Hodge Thank you, Dr. Leary, and good morning ladies and gentlemen, panelists. We revisit the
question of status this morning and at the outset I'd like to also commend the Virgin Islands Humanities Council and
the University of the Virgin Islands for the interest they displayed in sponsoring this conference. I would also like to
recommend that the filming that's being done, Mr. Chairman, be shared with Channel 13 on St Croix which is our
local public TV if you will, so that the folks in St. Croix can also participate to some extent in the proceedings here
this weekend. The question of status is one that has surfaced time and time again. It's an issue that many of us talk
about, if not explicitly, often implicitly. I suspect also the psyche of the Virgin Islander is somewhat affected by this
question of what indeed is our status and what should it be. And so I welcome this conference as an opportunity to
discuss what the options are--not from an advocacy position, because I don't see that as a role here this weekend, but
as more an educational and informational effort so that when the moment of choice occurs, there will be enough
education for a reasoned decision to be made. I would also caution, Mr. Chairman, that the educational process is one
that must be as substantive as it must be thorough because little will be served by having choices made by persons
who think that they are electing a particular choice but who indeed really want a different choice, different option,
different status for the Virgin Islands. It is tremendously important that we address this issue in a very deliberative
fashion. I am not so much concerned as cautious about the potential for this type of dialogue. Indeed, it could
become more than dialogue and rack the polity of the Virgin Islands. I am cognizant of what this issue has done to
our friends in the neighboring island of Puerto Rico in the question of should Puerto Rico be a state, should it be
independent, should it remain an Estado Libre Associado with the United States government. I trust that that would
not happen here in the Virgin Islands--that the level of debate would remain at a civilized level and that we understand
the importance of the issue at the same time that we understand that we operate within a democratic society, and that
therefore there is opportunity for dissent, there is opportunity for a free choice, indeed. Again, Mr. Chairman, ladies
and gentlemen, I want to thank you for the opportunity to say a few words this morning. I'd also like to say to Senator
Berry, who has been the foremost advocate of the issue, that it is worthwhile that the matter, the debate begin. Thank
you very much.
Dr. Leary Thank you, Lieutenant Governor Hodge. I would now like to introduce the President of the
University of the Virgin Islands, Dr. Arthur A. Richards. Dr. Richards.
Dr. Richards Thank you, Dr. Leary. Ladies and gentlemen, visitors, I want to welcome all of you to the
university and to tell you how happy we are to play a leading role in this debate, so to speak, on status. I do want to
emphasize, however, for those of you present and for those who might be hearing on the radio, that it's our intention
to present options, to present choices, so that the people might make a decision and that we do not intend--and we
should not be expected--to make recommendations of what we think it should be. It should be left to the people of the
Virgin Islands after they've received a thorough orientation. We have a tremendous job before us. I want to thank the
Humanities Council too. I want to thank the Legislature and the Government--Goveror--for providing funds for the
education of the people as to what these options might be. As the Lieutenant Governor said, the process should be
thorough. There are those of us who have some knowledge of disappointments and intentions in some other
territories. And our people should have a thorough understanding of what we might be getting into or what we might
not be getting into. Accordingly I will ask that enough time be devoted to allowing us to educate the people of the
Islands in this process, in these options, and that a decision be taken to allow the University and the cooperating
people to do a thorough job before the matter is put to a vote by the people of the Islands. Thank you very much for
coming, and I hope that it would prove to be a very very interesting session this weekend but also for the next several
months, perhaps a little longer. I hope we will have the opportunity to give the proper orientation to the people of the
Islands. I'm glad you're here.
Dr. Paul Leary Thank you, Dr. Richards. Before turning the session over to our distinguished moderator, Dr.
Roderick Moorehead, I would just like to make a couple of brief announcements or statements. One is in connection
with the planning of this conference. I also want to emphasize that it was a twelve person coordinating committee
drawn from the communities of St. Croix and St. Thomas which played a central role in working with the University
in organizing this conference. Their names are listed on your program, and their contribution should be acknowledged
as well. I also want to mention that in connection with the informational-educational nature of this program, we will
make materials available as panelists provide them for us. There may be limited copies. They'll be available at the
table that you saw as you entered the Little Theater and if we run out of copies and you can't get one- -don't worry.
Just leave your name and mailing address with someone at the table, and we'll be sure to provide you with one. At
this point I'd like to turn proceedings over to Dr. Moorehead.
Panel 1: O3 TIE
COMMONWEALTH 19
or
COMPACT?
PANELISTS:
Arnold Leibowitz, Legal Scholar. "What Is The Meaning of Commonwealth Status?"
Froilan Tenorio, Representative to the United States of the Northern Mariana Islands. "The Northern Marianas
Covenant: Our Experience Since 1976"
Peter Rosenblatt, Attorney-at-Law, Washington, D.C.; Former U.S. Ambassador for Micronesia Status Negotiations;
Former Counsel, Guam Commission on Self-Determination. "Guam's Proposed Commonwealth"
Lorraine Berry, Senator, Virgin Islands Legislature. "A Compact with the United States"
Moderator: Dr. Roderick Moorehead, University of the Virgin Islands
Dr. Roderick Moorehead Thank you, Dr. Leary. Good morning, ladies and gentlemen. There are a number of
distinguished people here, and before we go into introducing who's on the panel, I would like to acknowledge a
number of people who are here so that you get some feeling for the importance of this and for some of the dialogue
that we hope will follow. Dr. Leary just indicated the community advisory panel, and I'm not going to read off their
names; you saw their names. I will have you know, however, that just about every single person on that list is here
today. And I would like to single out a couple people who are going to be moderating other panels, and they're all
here with us. We have Attorney Edith Bornn. We have Dr. Orville Kean. We have Dr. Norwell Harrigan, and we
have Dr. LaVerne Ragster. I look around the room, and I see a number of impressive people from the executive
branch, from the judiciary--among them, the head of our Justice Department, Attorney De Castro. And I encourage all
of you to listen carefully, but more importantly to express your ideas because, as was indicated in the editorial of the
Daily News this morning, this is something more complex than selecting your next vacation spot. The conference is
important; public education is important. It is the only real hope for us to make the Virgin Islands be what we want it
to be. I saw a cartoon in the Daily News on Wednesday which got me a little miffed when it spoke about the options
that we ought to consider being called a mall, or a dock, or a parking lot, or a disaster area. I think it is far more
important than any of those parodies. Francis Bacon indicated that reading makes a full person and that writing makes
an exact person; however, he suggested that conferencing makes you a ready person. And that's what we're trying to
get you to be--ready for the big decision that you'll have to make. I will share with you the format that we're going to
use. First of all, we're going to have presentations by our four panelists--a maximum of fifteen minutes each. Then
we're going to give them an opportunity to respond to each other and then we shall open it up to the floor. I would
like to share with you a little of the background of the people that you're going to be hearing from because I want you
to understand how well prepared they are for this particular task. They will be speaking in the order in which they're
sitting. And we have first, Attorney Arnold Leibowitz. As indicated in your program, he is a legal scholar, but I
would like to indicate to you that he's a graduate of Columbia and Yale. He has done graduate studies at the
University of Heidelberg. He has been General Counsel to the Status Commission of Puerto Rico back in 1964. He
was a Counsel to the Third VI Constitutional Convention. He was Counsel to the Guam Constitutional Convention.
He has been a Counsel to the Virgin Islands Status Commission back in 1985. He's currently serving as Counsel to
Palau in their compact litigations and also to Samoa in their negotiations that they call land alienation. That's
Attorney Leibowitz's background in capsule form. The next speaker will be Froilan Tenorio, and he is a distinguished
gentleman who is the Resident Elected Representative to the United States from the Northern Marianas. He is based
in Washington, D.C. He is currently serving in his third term. He is a civil engineer by trade and a graduate of
Marquette University. He has been a Senator from 1980-1984 in Saipan. He is the person responsible for the
relations between the territories and the Northern Marianas. Our third speaker will be Attorney Peter Rosenblatt who,
too, is a Yale graduate. He's a former Assistant District Attorney in New York City. He has worked with a couple
Wall Street firms. In 1966 he served in the Johnson administration coordinating selected federal programs. In 1977
he served as ambassador to Micronesia and negotiated the existing compact on self-determination that they have right
now. And last year, he served as Counsel to the Guam Commission on Self-determination. Our fourth speaker is our
own distinguished senator, Senator Lorraine Berry, who of course is in her third term here, having been a member of
the Fifteenth, Sixteenth, and now Seventeenth legislature. She is the Chair of our Finance Committee. She is a
member of the Government Operations and Judiciary Committee, also a member of the Housing, Planning, and Health
Committee, and she has been the prime mover in the Legislature in terms of this political status debate and, of course,
the proposed referendum. She was also, as you remember, a candidate for Governor in the Democratic nominations,
in the Democratic primaries. I think you'll agree that these people are well prepared to address this important subject,
and at this time, I will ask Attorney Leibowitz to start off the discussion.
Attorney Leibowitz Thank you. I understood from the powers that be, that we are both permitted to proceed
without coats and also permitted to speak seated. Let me know if you don't hear me.
I noticed in the program, I'm listed as a legal scholar rather than a lawyer. I am a lawyer, and I wasn't sure what
Paul had in mind. I didn't know if I were being promoted or demoted. I asked my daughter who is more current on
these matters, and is in law school. She told me the story, which apparently now is going around legal circles, as to
how you can tell the difference between a dead squirrel and a dead lawyer if you find them in the road. The
difference is there are skid marks in front of the squirrel. In light of that, she took it that you have no place to go but
up and that if Paul was hiding my attorney background, that's probably a good thing.
I've been asked by Paul and Dr. Moorehead to give some background on the status issue generally in the United
States so that others who are very familiar with different aspects of this can speak from a little bit of a historical
perspective with a base of common knowledge. Some of you, I think, will know all of this. I'll speak rapidly and
those of you who do know it can close your eyes and not listen too carefully.
The discussion begins, as it must, with the U.S. Constitution. In the U.S. Constitution, as a number of you know,
only states and territories are mentioned. And the territories are only mentioned in one clause called the Territorial
Clause-- Article IV, Section 3, Clause 2--which basically says that the Congress shall make laws, rules and regulations
pertaining to territories. By the way, that was not a casual clause. It is not one that gets written up in textbooks, but
it was important because there were claims at the time--serious claims-- by the states to what they called the
backlands. These were lands that were not part of the original colonies but to which they made claims and it looked
like would eventually be populated. These were primarily in the Northwest territory. The land that later became
Ohio, Indiana, Michigan, Minnesota, and Illinois. But there were other claims in other places in the United States. If
those "backlands" really were to became part of Virginia or Maryland or Massachusetts, these states then would
dominate any union, so it became a very important issue. The agreement was that all the claims of the backlands
would go to Congress. The states, in effect, would cede their claims to the backlands to the Congress. Congress would
then determine what was going to be done with the territories. Even that determination was settled ahead of time.
Everybody understood that you would proceed, in terms of what to do with these territories, in accordance with the
Northwest Ordinance and the Northwest Ordinance made it clear that all the territories were going to be states as soon
as they met certain standards--primarily a population standard of 60,000. In sum you were going to give Congress this
power in order to permit the people of the backlands to become states of the Union.
The United States worked very hard to forge these States of the Union. A lot of the territories didn't quite make the
60,000 magic number. Some of you may remember that Illinois seemed to have a lot of difficulty reaching 60,000.
Everybody was sort of waiting for them. Eventually Congress said, well look if you can't make 60,000, how about
40,000? Then they looked around and took a census on 40,000. You counted people by sortof yelling across the river
and saying what are you and the guy said something you couldn't quite hear, and that was interpreted as meaning the
guy said he's from Illinois. Congress knew this and said that's O.K.; otherwise they'll never make it and we've got to
get on to North Dakota. That kind of thing. You just made them a state even though everyone knew that they didn't
quite make sixty thousand and that they didn't make forty.
The position of the Supreme Court on interpreting the Territorial Clause, was to be very broad. It was basically to
say, look since everybody is going to be a state anyway and you're going to be on equal footing with all other states
(which also is one of the provisions in the Northwest Ordinance) so let's not worry too much about what the Congress
does. Let's just allow Congress to do whatever Congress is doing. It's all very short-term anyway. Allow the
governor, who is an appointed governor, to do whatever he wants. Sure there was a lot of hanky-panky out there but
soon the people of the territories will have the power to chuck them out. There'll be elected governors and elected
legislators and then they'll become states and be part of the crowd like everybody else, equally corrupt perhaps, but at
least they're part of the system. And that was the way we proceeded. Justice Marshall is very good at this--of
indicating the need for broad Congressional power in terms of setting up courts and organizing things in the territories.
His message: don't complain; whatever the Congress is doing is O.K. That worked fine as long as everybody was
going to be a state. When in 1900 for the first time we acquired territories which maybe were not going to be states
we had a problem. By the way, the debate at that time revolved primarily around the Philippines. Puerto Rico and
Guam were also obtained. Hawaii had also just been acquired. All of these territories, particularly the Philippines,
had a number of things in common. They obviously were racially different, religiously different and geographically
distant. Nobody could conceive of the Philippines becoming a state. One reason was they were shooting at us. If you
get a lot of people who are shooting at you, you get the message that they don't really want to join the Union. They
were shooting at the Spanish, and as soon as they got rid of the Spanish, we came in and they just kept shooting. This
went on for about four years. And so the question was what to do about the Philippines. They were obviously
populated, with groups that were quite organized with great leadership. A great debate was started in the United
States about how to handle them. The shorthand question was "does the Constitution follow the flag?" If all the rights
of US Constitution apply to all the people in the territories, in the insular territories, then you're not going to become
imperialist. They'll have to be somehow or the other brought into the system, either disgorged to become
independent and the others will become states, but you're not going to be able to keep them around in a colonial state
very long. If, however, in some way all of the provisions of the Constitution don't apply, then maybe they could be
kept a part of the system and maybe we could become an imperialist state. People understood the debate, and the
debate became a major issue in the 1900 elections. Basically the conservatives--although the conservative side was
split--felt that the entire purpose of setting up the United States was to remove ourselves from Europe. Europe was
religiously bigoted, racially bigoted. Our people looked at Europe as something that they really didn't want to
become. A lot of wars there. The United States had not had those kinds of foreign wars. The idea was to distance
ourselves from Europe, otherwise we would be just like the Europeans.
And who wanted to be like the Europeans, like the French, and the British? Well, the answer to that was a lot of
people wanted to be like that. There was a great sense that the British we always had sort of an inferiority complex
about the British as people who speak better than we do the British were ruling the world and we felt that if we were
going to rule the world, we should be like them. They seemed to rule the world because the sun never set on the
British Empire. They had control over India, Hong Kong, and so forth. We now had the possibilities of also having the
sun never setting on our empire if, indeed, we went the same way. The Insular cases decided the question, five to
four. I want you to understand that the debates in the Supreme Court, too, were strong. Five to four with a wonderful
dissent by Harlan for those of you who still want to look at that. The Court said, Justice White, the concurring opinion
being the one that everybody talks about now, the Court said the Constitution applies potentially everywhere but it
doesn't apply automatically everywhere. The decision made a distinction between incorporated territories and
unincorporated territories. This was just made up; there's nowhere you could find it. The Court said if you're an
incorporated territory then all of the Constitution applies. If you're an unincorporated territory, then only those
provisions apply that Congress says apply, except for certain fundamental rights. You couldn't bring back slavery in
the territories which, by the way, was an idea that some people against imperialism had suggested if you didn't let the
Constitution apply. In sum, it was all a matter of what Congress said. That's how you decided whether you were an
incorporated territory or an unincorporated territory--you asked Congress and Congress told you. Congress is no
more responsive now than it was then, so that you sat around and waited. The Philippines by 1933 had made its deal
and after World War II became independent. Now the issue basically revolved around Puerto Rico. Puerto Rico was
looking to establish its solution to the problem. They had had this status debate under the Spanish in the 19th century.
They had been fighting this for a hundred years. We come in; it's new to us, but it's not new to Puerto Ricans. They
felt something had to be done. And they came up with really a remarkable solution to the problem as they saw it. The
same basic problem as for the Virgin Islands, Guam and American Samoa. The goals were three. First, to have local
self-government to the maximum extent possible. Basically that meant get the Feds off our back, get Interior out of
here, get the comptroller out of here. (There used to be, by the way, a comptroller appointed in the Puerto Rico
Elective Governor Act of 1947, and the way the Puerto Ricans handled him was they never talked to him. He went
around for three years and the people said where's the report. He answered I can't get up a report; nobody talks to me.
Nobody gives me a document) Second, they wanted some limitation on federal powers. All the Justice Marshall and
other Supreme Court decisions that said the Congress can do anything it wants in the territories--can make invalid
laws valid, valid laws invalid, which is the language of one of the opinions--that's got to stop. The third goal was
what the Puerto Ricans call dignidad, which roughly translated is dignity, some kind of respect The way you did that
was to set up a system of mutuality. You would structure the system and the development of what you were doing, so
that everything you did was joint. You would do something; they would do something; the United States would do
something; Puerto Rico would do something. It would be equal. That was key to this.
And they came up with, as I say, a remarkable solution which was commonwealth status. Commonwealth had been
used only once in U.S. history in connection with the Philippines as its transition status in-between 1934 and 1946
when they got independence. It had been mentioned in the Hawaiian debates by people who were opposed to
statehood, although commonwealth there included representation in the Senate. Except for that, there wasn't much
discussion of this status and the Puerto Ricans, as I say, came up with this rather creative solution to the system. They
were very careful in the way commonwealth was to be developed. They were going to pass a law; it would be
submitted to the Congress. Congress would pass a law; it would go back to Puerto Rico. Puerto Rico would develop
a constitution; the constitution would go back to Congress. Congress would approve the constitution (they'd made
some changes in this case). Puerto Rico would approve the changes and then commonwealth status was in place. It
was very comparable to the statehood process and certainly a process in which the two were extremely equal. Now,
under the commonwealth as Puerto Rico conceived it and it's still being debated and discussed you had that local
autonomy. You had your own constitution and the Interior Department supervising authority was eliminated. The
Interior Department does not have, since '52, any authority over Puerto Rico. There are no reports to them; there is no
desk officer--all of that is gone. Puerto Rico also established, or they said they established, this mutual consent
provision over what were key parts of the compact It's still debated we'll get back to it. Puerto Rico established,
they thought, some limitation on federal power, primarily through a lot of judicial discussions that said that
commonwealth has a new dignity and a new status and that, therefore, Puerto Rico has a certain local autonomy. It
gave them some kind of increased international participation which they thought was important, and there was U.S.
citizenship, which was very important. Those are the benefits. Commonwealth by the way is not easy. One thing that
Congress does, which is very unfair, is say to you in the territory work it out at home and then come back to us and
then we'll have negotiations. It's a very painful process. And in Puerto Rico, it was painful too. You all remember
that during these debates some of the Puerto Rican nationalists burst into the Halls of Congress and began to shoot in
the House of Representatives. They also attempted an assassination on President Truman and killed his guard. That's
what we remember in the United States. In Puerto Rico, less well known in the United States, is that 22 people died
and over 400 people were wounded. There was a modest rebellion down there. It was a major fight because the
independentistas felt, perhaps correctly, that Munoz had doublecrossed them, that the leaders of the commonwealth
were basically independentistas who had changed their minds and were now taking away from the independence
movement its strength in establishing a commonwealth. In any event, commonwealth was established in '52 and
everybody went back to their offices and, as far as we know, the federal government said that it was all very
interesting and nobody did much. Life seemed to go on just the way it was before. That bothered Puerto Rico a good
deal. They didn't get any confirmation that what had happened was real. Some people said commonwealth doesn't
really exist; it's really some kind of cosmetic device. What you do in a situation like that is you set up a commission.
So in 1964 the U.S. and Puerto Rico set up a commission called The U.S.-Puerto Commission on the Status of Puerto
Rico, again very joint. Puerto Rico paid; the United States paid. There were members of the Commission from the
United States and from Puerto Rico. And the Commission reported very strongly saying, "yes, commonwealth exists
as a status". There are three possibilities for Puerto Rico: statehood, independence, or commonwealth; and they all
have validity. Something of political importance happened in 1950-52, and that political importance is translated to
legal reality. There is some legal consequence as a result, and there should be a vote in Puerto Rico (which there
never had been before) between commonwealth, statehood, and independence to find out what Puerto Rico really
wants. And they did that. The next year, '67, there was a vote, and commonwealth won, basically to the same
degree as they had won in the party elections. A little less, however. As I recall, the figures were a little less than
60% about 59% voted for commonwealth.
Well everybody said that's very interesting, too. It was all sort of an internal discussion, but so far, nobody in the
judiciary had talked much about it. The Supreme Court certainly hadn't. And the Supreme Court then took the first
case from Puerto Rico that it had taken since commonwealth: Calero- Toledo vs. Pearson Yacht Leasing Company.
And I'll spend just a little time on it. It's a 1974 case. In that case, Puerto Rico had a forfeiture statute which
permitted it to seize property that had been used illegally, primarily for drug running. And when you seize the
property, you could seize it and sell it and the first time the guy who owns the property knows about it is after he
wakes up one morning and the ship is gone and it's been sold. That's what actually happened. This guy said, "we just
leased the ship to somebody, we don't know what those guys did--and the next thing you wake up and you don't have
a ship. You can't do that under the Constitution, can you? There must be something the matter with a system like
that." That same question was being debated in the states as well. It went up to the U.S. Supreme Court on the
question of whether the Puerto Rico statute that permits you to do this without a jury trial, without notice, without
anything, is legal, is constitutional. Now the rules are very clear. When you are trying to get a state statute declared
unconstitutional, you need three judges. You have to go to a three-judge court to do that. If, however, it's a territorial
statute, then you only need one judge. So the issue was, what is Puerto Rico? If it's a territory, you only need one
judge. If, however, it is a state, then it's three judges. Obviously, Puerto Rico is neither; it's a commonwealth. If,
maybe, commonwealths are like territories, you only need one judge. The Supreme Court was very clear on this.
They said no, something did happen. Puerto Rico was no longer a territory. Although the precedents were very clear
that prior to this time in Hawaii and Puerto Rico also, you needed only one judge, the Court said, "no, something has
happened". The commonwealth was different. Puerto Rico is no longer a territory. It is, for this purpose, unique, and
closer to a state, and therefore you need three judges.
There was a lot of discussion in that opinion, and in subsequent opinions, making it very clear that commonwealth
is a unique status in American law. There are a couple of lower court opinions that say something similar. So there is
some judicial confirmation that commonwealth as a status exists and it has some consequence.
Meanwhile, back at the ranch, in the executive branch, which had fought commonwealth all along, somebody
decides that in the break-up of the Trust Territory of the Pacific Islands, commonwealth might be a good solution.
The Executive negotiated with the Northern Marianas a commonwealth in which the basic principles that Puerto Rico
had fought for were the same principles that the Northern Marianas wanted: local autonomy, limitation on federal
power, some sense of mutuality and respect. That was set up in the covenant, and since Froilan Tenorio is going to
talk about that, I just want to say that it has been established. There is a case as well in the Ninth Circuit that has
affirmed the existence of commonwealth in the Northern Mariana Islands. Let me sum up. From a legal point of view,
there is no question that commonwealth as a status exists. To say it doesn't is to say the moon doesn't rise.
But once you say that, the more difficult question arises, and that is, what is the consequence of commonwealth?
The Supreme Court has said commonwealth exists. There is some experience between Puerto Rico and the Northern
Mariana Islands, that they are commonwealths. But the question still arises because it is very unclear. Do the rights,
do the goals that the Northern Mariana Islands and Puerto Rico fought for, do these three things that we talked
about--did they get that? And on that, I think it honest to say, it's very unclear. They got local autonomy clearly, a
limitation on federal power, perhaps, and mutuality, even greater perhaps. That is the debate: whether you can get
within commonwealth these substantive powers that territories want. Maybe you can, but it's part of the fight right
now. Thank you.
Mr. Moorehead Thank you Attorney. Before we go on to our next speaker, we want to recognize that we just
got an interesting lesson in law. If that's how the professors are in law schools, I'm going to change professions. I
would like to recognize a couple people whom I didn't recognize before. And important in many regards, our Board
of Trustees who make the policy for this institution and who have to approve any number of things that we do. We
have several of them here, and I would first like to introduce the Chairman of the Board, otherwise known as
Governor Paiewonsky, who has made major contributions in this area. We have from St. Croix, our vice-chair, Mr.
Patrick Williams. And of course we have Mr. Schulterbrandt who has been here for the longest while helping us try to
be a better institution. I look up in the audience and I see a number of students and faculty, and I hope that this
discussion continues in your respective classrooms and ultimately that some of you will put your ideas on paper so
that they can be shared with the public at large. At this time I will give you the Honorable Froilan Tenorio.
Froilan Tenorio Thank you, Dr. Moorehead. I would like to start by saying that unlike Mr. Leibowitz, I'm not
used to speaking in front of an audience, so I hope that you bear with me when I stutter as I go along. I would like to
say that I appreciate the opportunity to come to the Virgin Islands and tell you about our experience as a
commonwealth under the covenant. I hope that what I have to say today will help some of you in choosing whether
you should have a commonwealth status or something else. I want to just give you a brief history of our experience
since 1976 as a commonwealth of the United States, or rather of the Northern Marianas under the Covenant to
Establish a Commonwealth of the Northern Marianas in Political Union with the United States of America. I am the
Resident Representative to the United States. It's an elected office. When the covenant was negotiated, the US and
our negotiators decided to leave it up to the people to decide whether this office should be elective or appointive. The
constitution drafters decided that it should be elective, and I think that's the beginning of the problem, the controversy
that I have with the governor that has an impact on self-government as I see it. I would like to say that, in general, the
US has been very nice to us especially when it comes to financial assistance. On the other hand, I am suspicious
whether the generosity has an ulterior motive on the part of the US. And this is to allow us to become spoiled, to
become perpetually dependent on the United States. And not give us the opportunity, for example, to generate our
own local revenues to the maximum extent so that one day we can become independent Because as I see it, I like to
say that we have the potential to become independent within five years from now. And I would like to seek that
opportunity in the future. I would like to generalize our experience with the US Government since our commonwealth
status as disappointing and, I might say, resentful. For in my opinion, and I think Mr. Leibowitz made it clear, to me
the foundation of a commonwealth status is self-government, is local autonomy. But unfortunately from the very
beginning, the US Government, both Congress and especially the Executive Branch and especially the Department of
Interior, made it known that they were not going to treat us differently. And in fact we have been treated just like any
other territory of the United States. So from the very beginning, the US did not want to recognize our right to self-
govern ourselves, our constitution. Before I go into explaining to you our problems on the self-government, I'd just
like to mention that another issue has popped up recently. It involves citizenship as defined, or rather the provision of
citizenship in the covenant. Under the covenant, we were supposed to become US citizens back on November 3,
1986. Unfortunately, the US Government is threatening to divide our people because the US Government doesn't
want to give about 1,000 of our people US citizenship. And I can tell you this, that if we don't resolve this problem
pretty soon, I will insist that we go for a renegotiation of the covenant or to terminate it, because if the US thinks that
we can move on with about 1,000 of our people without a country because they won't get US citizenship--and I don't
think they will be recognized by the foreign countries that they are the citizens of those foreign countries--then there's
just no way that we can survive as a commonwealth or, for example, as a nation. Let me backtrack before I go any
further, however, and say that I think we made the right choice back in 1975, '74 when we decided to become a
commonwealth, instead of a free associated state like the rest of Micronesia, or independence. There's just no way
that we could become independent at the time, and as a freely associated state, I don't think our economic
development would be as much as it is today. The option of statehood was, of course, not available to us at that time.
I'd like to mention that despite the covenant, despite the commonwealth status, the big difference between the
Northern Marianas and the Virgin Islands is the fact that we are still not a territory or a possession of the United
States. Of course we all know that the Virgin Islands is a territory of the United States, and, in your case, you just
want to change your form of government. I would say that at the time when we were negotiating the covenant we
would have grabbed anything, any status that the US wanted to give to us. Ironically, the problem or let's say the type
of government/self-government, local autonomy, is the least of the concern of the people. They didn't know anything
about local autonomy; they didn't know anything about self-government. I can tell you that most of the people who
voted for the covenant didn't know what in the world they were voting for. But they were influenced by the fact that
we are going to get US citizenship; we could travel all over the world; we are going to get financial assistance for our
government and, embarrassingly, we are going to get food stamps. Despite the fact that most scholars who have
studied the covenant, our status, as a commonwealth, say that we are not different from any other territory, you might
say we were nothing but a glorified territory, the courts have come out differently. There have been several court
decisions in the Ninth Circuit Court that recognize that we have a unique political relationship between the Northern
Marianas and the United States. In one case, in the Atalig case, the Court acknowledged that the Northern Marianas
Legislature has the authority to decide whether local trials will be before juries. And the Court made the distinction
that in the case of Guam, the Guam Legislature does not have that authority. On another matter the Court decided that
because of local law, the Circuit Court of Appeal in San Francisco did not have jurisdiction over a case. Now I would
say that something like that cannot happen in the Virgin Islands or for that matter in the United States. It seems that
all laws are subject to the scrutiny of the Court. So I am satisfied, I am satisfied that our status as a commonwealth is
different from the other territories, but, as I said, while the Court is agreeing with us, the Executive Branch and the
Congress don't follow that type of thinking. The Interior Department especially has been defying, I might say, with
disdain our right to govern ourselves. And I might say that the US Government does not respect the covenant itself.
For example, on November 3, 1986, when the President proclaimed the termination of the trusteeship which fully
implemented the covenant and at which time we all became US citizens, Interior also had the President proclaim a
policy which placed the jurisdiction of the administration of the Northern Marianas in the Department of Interior and
adding insult to injury, Interior blocked out the language from the Organic Act of Guam. Now I noticed that this
provision is not in the Organic Act of the Virgin Islands. Now I say that that is inconsistent with the covenant. The
President does not have any authority to be proclaiming anything that affected our relationship under the covenant
unless we authorize him to do that. He did so; he proclaimed citizenship and the termination of the trusteeship
because we agreed in the covenant that he would do that. Now if the US Government wanted to put in effect the
policy that Interior would have responsibility over us, I say the US should have done it through an executive order, not
a presidential proclamation. Anyway, there's no doubt in my mind that many people in Washington, DC, do not
understand what self-government is all about. On the other hand, I know that a lot of them do, but yet, as I said, we
are being treated just like any territory. I'm surprised to learn from Mr. Leibowitz that in the case of Puerto Rico,
which is a commonwealth as we all know, Interior does not have anything to do with them. Now that's the way it
should be with the Northern Marianas. Now I think I might say that the reason for the way the US Government treats
us--I think the attitude is first condescending; secondly the attitude that, look, we're very generous to you people;
we're giving you a lot of money; we're going to tell you how to run your government I think the attitude of Interior,
especially of Mr. Richard Montoya, the former Assistant Secretary, was the hell with the self-government of the
Northern Marianas, the hell with local autonomy, the hell with the Constitution. And I'm afraid that as long as we
continue to get financial assistance from the US, this is the way they're going to treat us. Now I think one reason why
Interior or Washington, DC, treats us in this fashion is because they're used to dealing with the other territories, and
unfortunately we have a governor, and the territories have a governor also. I was wondering how the Lt Governor
was going to be addressed over here because to me this is one difference between the Virgin Islands and the Northern
Marianas under the self-government concept. I was surprised because the Lt. Governor was introduced as Acting
Governor. I was reading the Organic Act, and I thought I read that if the Governor is temporarily absent, then the Lt
Governor shall have the powers of Governor. Now to me there's a big difference between that and the Northern
Marianas. To me, under that circumstances, I would say that, technically, you have two governors because the
Governor, who I think is in Washington, DC, is still governor, and the Lt. Governor is also governor. In our case, it's
different. In our case we are very specific that when the Governor leaves the Northern Marianas, we have an Acting
Governor. Now it's very clear in our Constitution that the Governor loses his authority outside of the Commonwealth
because there's no way that we can have a Governor and an Acting Governor at the same time. The Governor knows,
for example, that he cannot sign into law a legislation outside of the Commonwealth. He cannot take a bill for an act
to Guam, to Washington, DC, and sign it into law. So we all know that, but what did Montoya do? Montoya invited
the Governor on one occasion to Washington, DC to sign an MOU with him over there. Now, remember that the
Governor was there in Washington, DC, and we also had an Acting Governor on Saipan at the same time. On another
occasion, Montoya cornered the Governor in Honolulu and threatened him with something (I don't know what) if he
didn't sign it, that he must sign this, this other MOU; and unfortunately, the Governor-- first of all, I don't think he has
too much of a choice, and he doesn't have the guts to talk back to Montoya; but also the fact is that aside from
condoning it, he encourages it for the simple reason that he gets the glory, the honor, the recognition that he doesn't
deserve and I might say is unconstitutional. The Governor has no authority whatsoever to be dealing with the United
States Government directly, or for that matter, any government agency or government official. To me the concept of
self-government is this: that it is up to the people through the Constitution to decide how to govern themselves,
decide what officials the Government should have and define the functions of the officials. And to me this is very
important, but as I said, the US Government doesn't respect our Constitution and our local autonomy. And I say that
this is very relevant in your case because unlike the Northern Marianas, we weren't really concerned about what type
of government we were seeking at the time when we were negotiating the covenant. We were most concerned about
the benefits. Before I close I'd just like to point out the differences between the Northern Marianas and the Virgin
Islands at the time when we were negotiating the covenant and the Virgin Islands as it is today. Unlike the Virgin
Islands, we were not a US territory; we were not getting the benefits and privileges of US citizenship. You might say
that we were an independent nobody at the time, so actually we're very fortunate that the US wanted to give us
anything, any status. As I said earlier, the least concern of the people at the time was the type government we were
going to get. They were concerned primarily with economic issues, financial systems, food stamps, and for your
information, we have SSI that you people don't have, and with the US citizenship, we can travel all over the world.
This, other than the SSI, these are our privileges and rights that you are enjoying now that we didn't. Also at that time
after you might say centuries of domination by foreign countries, first the Spaniards, then the Germans, then the
Japanese, the Americans, we looked up to the Americans at that time. I must say, we still do now. So we were very
happy to learn that the US was willing to give us a status--citizenship especially. We were rather insecure at that time
because after hardship during the War and before the War, the Americans were just the very opposite of what the
Japanese were to us. And lastly I'd just like to say that the people didn't really know what they were voting for when
we voted for covenant. The one characteristic about our people was that they believe in the people that they appoint
or elect to represent them. If at that time the negotiators had presented to the people the Communist Manifesto, I'm
sure we would have voted for it too. So now you're different over here because you're educated and I'm sure that you
are going to really make a good study of the options available. We were not. So with that I'd like to close.
Dr. Roderick Moorehead Thank you, Mr. Tenorio, for a very candid and informative presentation. We are now
going to hear from Attorney Rosenblatt.
Ambassador Rosenblatt Thank you very much, Dr. Moorehead. Conscious as I am of the limitations on our
time, I am going to try to deal with this very complex and current subject of Guam and its effort to achieve
commonwealth status mostly by way of talking about background and very little detail. If anyone is interested in the
details, as I'm sure you all are, I hope that we will be able to get into it during the Q & A. And Dr. Moorehead, I give
you permission to kick me over the table and not just under the table if I overstay my time.
I'll begin by telling you how I first personally became aware of the interest of the people of Guam in bringing about
some change in their status from that of an unincorporated territory. When I was passing through Guam from 1977 to
1981 during the Carter administration, on my way to and from the Trust Territory, I made it a practice to confer with
the leadership of the territory--with the Governor, the Lt Governor, the members of the Legislature--to brief them on
the federal administration's intentions with regard to the Trust Territory and the progress of the negotiations. I recall
vividly one incident towards the end of the Carter administration when as usual I went to the Governor's office. I
spoke to the Governor and the Lt Governor and then I was told that some members of the Legislature wanted to see
me as well. I said "fine". I was ushered into another room, and there were practically all of the members of the
Legislature who, not only figuratively, but almost literally jumped on me. They said that this is all fine about the
Trust Territory, but what about us? Are we next? I had to say, as was, of course, the fact, that I had no brief from the
President to discuss Guam's status.
But it was during the Guamanian administration that happened to be in power at that time--the Calvo
administration (Governor Calvo was in office between 1978 and 1982 or 1979 and 1983)--that the current
commonwealth effort had its beginning. A Political Status Commission was formed--the Commission on Self-
Determination. Two votes were held among the people at large about which status they preferred. The results were
overwhelmingly in favor of commonwealth whatever that meant or whatever they thought it meant.
When the Bordallo administration took office in 1983, the ball was picked up and carried forward. The
Commission on Self- Determination was reconstituted. A decision was made--a very important and fundamental
decision to draft a so-called Commonwealth Act; an act which would proceed directly from the people of Guam to
the federal authorities in Washington. A number of rather important debates took place. One of the more notable of
them concerned the issue of whether Guam should choose to go the so-called congressional route -- to take up the
Commonwealth Act with Congress--as against the negotiated route, which would parallel the negotiations that took
place between the peoples of the Trust Territory and Washington for free association.
It was in many respects a false issue. No office existed which could deal with Guam or any other territory
comparable to the office which I had the privilege of heading in the Carter administration, the Office for Micronesian
Status Negotiations. On the other hand, it isn't really possible to deal with Congress alone on the many important
issues raised by the Commonwealth Act. Any number of federal agencies have far too deep an interest in the future of
the territories to be ignored. The Commonwealth Act which the Bordallo administration finally drafted satisfied the
minimum demands of a very important Guamanian constituency, supporters of so-called Chamorro rights-- the
Chamorros are the native people of the island of Guam. In so doing, they presumably understood that they would be
displeasing the non-Chamorro population of Guam and guaranteeing the Commonwealth Act a fairly cool reception in
Washington. The most notable aspects of the Commonwealth Act dealing with this subject are Article I --which
defines the status and "Chamorro rights"-- and Article VII, which deals with the hot topic of immigration.
This was more or less the status when Governor Joseph Ada took office in January of 1987, a bit more than a year
ago. He was placed in a serious dilemma by this draft. The drafting of the Bordallo Commonwealth Act had left
much blood on the floor. I've mentioned two of the leading issues, and there were a few others. The Chamorro rights
advocates warned Governor Ada not to retreat from the Bordallo draft. But a large segment of the population was
opposed to the draft, and Washington was signalling clearly but privately that the Bordallo Commonwealth Act was
unacceptable.
Let me say a word about Chamorro rights which may sound familiar to people on these islands. The Chamorros are
the native people of Guam. No one knows exactly how many they are or what percentage of the total population they
comprise, but a working estimate is approximately half of Guam's population. Of the remainder, about a quarter or a
third are of Filipino birth or extraction--some part of whom are illegal. The remaining elements of the population are
mostly mainland Americans, Koreans, and Chinese. The Chamorro rights advocates are divided among themselves,
but most of them take the position that people of Chamorro extraction should have some rights on Guam which are
superior to those of other elements of the population; principally to be separately consulted on the future political
status of their island. As you all know, such a proposal presents an extremely delicate and difficult dilemma. I should
add that the Commission on Self-Determination has been composed, I believe, entirely of Chamorros under each of
the last three governors. Early last year the Ada commission decided, for better or worse, that it would go with the
Bordallo draft and leave the issues it presents to the people in an article-by- article referendum which was to take
place in August of 1987. The members of the Commission did not endorse the draft until the final week before the
vote. They did so, I think, because they suddenly came to the realization that they couldn't simply drop this thing on
the people without a word as to their own positions. They also recognized that if the draft, or most of it, was not
adopted, they would have to start all over again. There would probably be a great deal more blood on the floor before
they were able to fashion another draft, and it, too, would not satisfy everybody. So they supported it, and ten of the
twelve articles were approved by margins ranging from just over fifty percent to about sixty percent
Articles I and VII, the two controversial articles that I have mentioned, were defeated by similarly narrow margins.
The referendum law said that if any of the articles were defeated, they would have to be redrafted and resubmitted to
the people. Articles I and VII were, accordingly, slightly revised and resubmitted to the people in November of last
year. They passed, and I should add that the probable reason why they passed is because there was a much higher
voter turnout. In the August 1987 referendum, the people voted on the Commonwealth Act alone and the voter
turnout was extremely low. The November referendum was combined with an election for a vacant seat in the
legislature, and the turnout was much higher. The results were dramatically different; with both revised articles
passing by substantial margins. Incidentally, the election was held to fill the seat vacated by the untimely and most
unfortunate death of the very distinguished and valued vice-chairman of the Guam Commission, Pete Sanchez, who
once served the Virgin Islands as Commissioner of Education.
Now, I simply do not have time to get into the provisions of the Commonwealth Act, but suffice it to say that the
major topics with which it deals are--and I'm reading now from the index of the Commonwealth Act, just to give you
an idea of what it covers-the Political Relationship, the Applicability of Federal Law, Foreign Affairs and Defense,
Courts, Trade, Taxation, Immigration, Labor, Transportation and Telecommunications, Land, Natural Resources and
Utilities, United States Financial Assistance, and Technical Matters. If anyone is interested in any of these things in
greater detail, we can get into that later.
In my remaining time I would like to touch briefly on the prospects which this Commonwealth Act faces in
Washington. That, after all, is the bottom line. Some parts of it are noncontroversial, such as the Article that deals
with courts. Some parts repeat existing law which is already in place. These are not likely to present serious
difficulties. At the opposite extreme, some provisions are extremely unlikely to be accepted as they are. Elements of
the Commonwealth Act which deal, for instance, with apportioning rights, or which could be interpreted to apportion
rights by race or ethnicity, will almost certainly be unacceptable in Washington. Giving the Commonwealth of Guam
rights which are normally exercised by the federal government will present serious difficulties. Giving the
Commonwealth a veto over the exercise of federal government rights is going to present problems. Let me repeat a
further problem which Arnold Leibowitz touched on; commonwealth status must fit under the federal Constitution. In
that regard, it is different from free association, which is not a status under the federal Constitution. This presents all
kinds of very complex difficulties which Arnold mentioned. The final category of articles in the Commonwealth Act,
a majority, I think, are those which are not totally objectionable but which will require extensive revision.
But before these articles can be discussed with the Federal government Guam must overcome an initial procedural
question; how does one take up this issue with the federal government if one is already a US territory composed of
US citizens? Guam wants to negotiate. It has a Commission on Self-Determination which is legally empowered
under Guam law to negotiate with the federal government. But the Congress doesn't negotiate; Congress legislates.
Therefore, some way will probably have to be found to initiate informal consultations which Guam can regard as
negotiations and which Congress can regard as something akin to legislative drafting.
Finally one must find a way in which these discussions, legislative drafting, or whatever, can embrace the Executive
Branch of the federal government, which occupies an indispensable role in this process.
The atmosphere in Washington is now, I think, sympathetic towards the aspirations of Guam and the other
territories. However, as Arnold mentioned, it has been the settled practice in Washington to defer to territorial
initiatives on the issue of political status, while insisting on federal prerogatives. These are extremely complex issues.
They are mixed in with other factors such as personalities, politics, and the need for tact and understanding in dealing
with the human beings on both sides of this issue. And they present, and will continue to present, a very difficult
negotiating job.
Now, let me conclude with some thoughts for the Virgin Islands on the Guam process. There are numerous
parallels between Guam and the Virgin Islands. Both enjoy the same political status. Both are developing
economically rapidly. Both are dissatisfied with their second class political status, and, as we've heard, with the
Department of the Interior. And let me add as an aside--and I'll throw my rock at them too--I found them just as
tough to deal with within the federal government as the territories have from their vantage point The territories share
many of the same specific problems and aspirations. They are equally affected by the federal government's failure to
develop a genuine territorial policy in the last couple of generations. The Carter administration made an effort to try
and cope with the obvious absence of federal territorial policy. I participated in that process, but it was really far too
general and could not be regarded as a serious analysis of the subject or an effort to come up with a new approach.
This leaves one with the question as to why there is not more contact and cooperation among the territories.
There are also some differences between the territories. The most important, it seems to me, is that Guam is an
important military base. That brings other interests in the federal government into any proposal having to do with the
future of Guam. But while Guam is therefore at the cutting edge of present efforts to change the unincorporated
territory status, it seems to me that whatever benefits Guam achieves with it's somewhat greater negotiating weight,
will apply equally to other territories. It's unthinkable that a status could be created for Guam which would be denied
to the Virgin Islands.
Guam has not handled its political status issue with the greatest of skill, but that may be an inevitable consequence
of being a small, remote democratic society. The subject has become highly politicized in Guam. Territorial interests
are often at the mercy of partisan and personal political jockeying. But also, as stated, there are real divisions on
issues. There is no united front in Guam. Minorities within the U.S., including the territories, have traditionally
looked to the federal government. Minorities in Guam look to the federal government for protection of their rights
and concerns within Guam. The federal government is, as a result, on the spot, but that's where the federal
government should be. That's what it's paid to resolve. So I would say that the Virgin Islands should consider
Guam's successes and mistakes. It should learn from the experiences of Guam. If it has similar aspirations for
revision of its political status, it should cooperate with Guam without being tied, necessarily, to Guam's way of doing
things, and I will be very happy to discuss any of these details at a later stage of these proceedings.
Dr. Roderick Moorehead Thank you, Attorney Rosenblatt. We have heard the experiences of several different
places, and now we move right to our home. And with that, I will give you Senator Berry.
Senator Lorraine Berry Thank you, Mr. Moderator. I'm honored to be among this distinguished panel. I
would like to say a pleasant good morning to all fellow Virgin Islanders and friends. I will start off my discussion
with a little background on the experience of the Virgin Islands and then I will go into, specifically, the proposed
compact for the Virgin Islands. These Virgin Islands, by the terms of the Convention between the United States and
Denmark of August 4, 1916, came under the American flag on March 31, 1917, subject to the sovereign power of the
United States. It is important to understand, however, that these Virgin Islands are not now and were never a part of
the United States. The 1916 Convention did not incorporate the Virgin Islands into the Union, rather it reserved for
future determination by Congress, the future political and civil rights of the inhabitants of the territory. (Article 6,
Paragraph 2.) Further, in 1954, Congress formally declared the Virgin Islands to be an unincorporated territory of the
United States of America. That's Section 2A of the Revised Organic Act of the Virgin Islands, June 22, 1954. The
Territorial Clause of the US Constitution vests the territorial power of the United States in the Congress. Congress
shall have the power to dispose of and make all needful rules and regulations respecting the territory or other property
belonging to the United States. (Article 4, Section 3, Clause 2.) And the courts have held that in the territories,
Congress has the entire dominion and sovereignty, national and local, and has full legislative power over all subjects
upon which a legislature might act But this power may be transferred to local legislatures except as limited by the
Constitution and acts of Congress. In 1964, the Virgin Islands legislature convoked the first Constitutional
Convention of the Virgin Islands to draft a so-called second revised Organic Act. The convention consisted of
twenty-two elected delegates in addition to the entire membership of the legislature, which then numbered eleven
senators. Using the Revised Organic Act of 1954 as a workingdocument, the delegates produced seven major
proposals. One, the enactment by Congress of a new Organic Act which would be subject to amendment by the
Legislature, by popular initiative, and by constitutional conventions. Two, elected Governor and Lieutenant
Governor. Three, removal of limitations on voting for at-large members of the legislature so that each voter will be
empowered to vote for a number of at- large senatorial candidates equal to the number of at-large seats to be filled.
Four, elimination of the presidential review of legislative overrides. Five, appointment of government comptroller by
the Governor with advice and consent of the Legislature. Six, elected Resident Commissioner or Delegate to
represent the Virgin Islands in Congress. And seven, authority of the Legislature to fix the compensation of its
members. The Convention also petitioned for a constitutional amendment to extend the presidential vote to the people
of the Virgin Islands, and declared that the Virgin Islands should be an autonomous territory within the constitutional
system of the United States and should not be annexed to any state, county, or other jurisdiction under the American
flag. The proposed second revised Organic Act was not submitted for ratification by the people in referendum, and
Congress refused to consider the recommendations contained therein as a package. Nonetheless, by 1968, Congress
had enacted the Elective Governors Act, removed the limitation on voting for members of the legislature, eliminated
the presidential review of legislative overrides, and empowered the Legislature to fix compensation of all of its
members. In 1971, the Legislature convoked a second Constitutional Convention which consisted of thirty-three
delegates who were members of the Legislature and appointees of the Governor, and governing bodies of the legally
registered political parties. This convention produced a draft constitution and an accompanying Federal Relations
Act These documents were submitted to referendum in conjunction with the 1972 general election. A total of 77.3%
of the voters who participated in the general election, also cast ballots in the referendum. The proposed constitution
and Federal Relations Act was ratified by a margin of 56.2% to 43.8%. But these documents went nowhere.
However, in 1976, Congress enacted legislation which empowers the people of the Virgin Islands to adopt their own
constitution for local self-government But the legislation mandates that the constitution must be drafted within the
existing territorial- federal relationship. The late Governor, Cyril E. King, who was then in office, objected to this
restriction which, he said, made it impossible for convention delegates to address the federal relations matters which
were of vital concern to the people. Agreeing with Governor King, the Daily News called the Constitution Bill a case
of "putting the cart before the horse". It pointed out that even though a Constitution may be adopted, the basic props
of the territory's economy will still be at the mercy of Congress or the President The newspaper argued that to use
our friends and influence in Congress to work for a document that can do little than restate principles seemed to be, at
best, a poor choice of priorities when so many other vital questions concerning the Virgin Islands economic status and
relationship with the Federal government are up in the air. Two constitutions drafted in accordance with the 1976 law
by the Third and Fourth Constitutional Conventions were rejected by the voters in 1979 and 1981 respectively. The
delegates were frustrated because even though they created committees on federal relations, they were legally barred
from dealing with status and federal relations issues. In 1982, the voters determined by referendum, that status and
federal relations issues should be resolved before another attempt is made to adopt a constitution. Accordingly, in
1983, I sponsored legislation that was approved in 1984 which set in motion a process by which the people of the
Virgin Islands would make fundamental decisions respecting their future political status or federal relationship with
the United States. Phase I of the process was completed with the submission on January 14, 1985, of the report of the
Select Committee on Status and Federal Relations, which I was privileged to chair. A bill is presently pending before
the legislature to hold a referendum in November, 1988, to enable the voters to choose among statehood,
independence, free association, incorporated territory, status quo, and a compact of federal relations, which would
represent Phase II of the process. The conduct of Virgin Islands-United States negotiations in pursuance of the results
of that referendum would constitute Phase III of the process. An adoption of a constitution and inauguration of a new
government for the Virgin Islands as a consequence of successful Virgin Islands-United States negotiations will mark
the completion of Phase IV, the final step in the process. Now to the compact of federal relations. As indicated,
Congress has broad authority to delegate powers to the territorial governments. Accordingly, the preamble of the
compact calls for the creation of an autonomous government within the American political system, which government
would be invested with powers comparable to that exercised by state governments relative to state, county and
municipal matters. Further, Article X of the compact states that in order to respect the right of self-government and
self- determination guaranteed by the compact, Congress would agree to limit the exercise of its authority under the
Territorial Clause of the US Constitution and to delegate to the local legislature its power to legislate over all subjects
upon which a legislature might act. Moreover, Article I of the compact specifies that the relationship between the
compact, which together with those provisions of the Constitution, treaties and laws of the United States applicable to
the Virgin Islands adopted in accordance with the terms of the compact, shall be the supreme law of the Virgin
Islands. Article I also provides that the people of the Virgin Islands shall have maximum degree of internal self-
government and shall govern themselves in accordance with a constitution of their own adoption. The method of
adoption of the constitution and the procedures for the constitutional autonomous government to succeed the existing
Virgin Islands Government is outlined in Article II of the compact. The role of the federal judiciary with respect to
the Virgin Islands and the applicability of the federal constitutional provisions are covered in Articles III and IV of the
draft compact. Under Article V of the compact the mirror theory of taxation is maintained with the proviso that the
autonomous government, subject to ratification of the people in referendum, may impose its own income tax
providing that at least two years notice is given. It also specifies that the Virgin Islands will be entitled to the return of
100% of the excise taxes collected on Virgin Islands rum and petroleum products imported into the US. Further the
federal government would be required to maintain a system of custom-free clearance at Virgin Islands airports. The
Virgin Islands under Article VII of the compact would be authorized to enter into commercial, educational,
agricultural, cultural and other regional cooperative agreements with other governments in the Eastern Caribbean,
providing that those agreements are not in conflict with United States foreign policy. The United States has pledged
under Article XII to assist the Virgin Islands government in its effort to achieve a progressively higher standard of
living for its people as a part of the American economic community and to develop economic resources needed to
deliver an acceptable level of basic social services. The Virgin Islands government's jurisdiction over off-shore
territorial limits would be extended from 3 miles to 8.5 miles under Article XIII of the compact. Articles XIV and XV
and XVI provide that the Virgin Islands shall continue to be exempt from the provisions of the Jones Act and all other
federal laws which may require the commercial shipment of persons and goods between American seaports to be
accomplished in US flag vessels. All Virgin Islands laws, executive orders, proclamations, rules and regulations in
effect on the date the successor government is inaugurated shall remain in force and effect until and unless altered by
the said successor government. And in order to respect the rights of self-government guaranteed by the compact, the
United States agrees that the provisions of the compact may be modified or amended only by mutual consent of the
two governments subject to ratification by the people of the Virgin Islands in referendum. Regular consultation
between the United States and the Virgin Islands on all matters affecting their relationship is provided for under
Article IX of the compact. It also provides for the designation of special representatives of the two governments at the
request of either government, but not less frequent than every ten years, to consider in good faith such issues affecting
the relationship between the Virgin Islands and the United States as may be designated by either government and to
make a report and recommendations thereto. Finally, let me say, in 1984, Alexander A. Farrelly, Democratic National
Committeeman for the Virgin Islands, who now serves as our Governor of the Virgin Islands, made the following
statements on a political radio program on Radio WVWI, St. Thomas, Virgin Islands, paid for by the Democratic
party of the Virgin Islands:
"Today I would like to discuss with you the question of status. A word that has
become popular particularly since the establishment of the Berry Select
Committee on Status and Federal Relations. My views as expressed today deal
with the label or name of what that relationship should be. I don't believe that
approach is as useful, because a search for a label will not, in my view, facilitate
the achievement of the goal. The difficulty with a search for a title is illustrated
by the reference to three forms of what is today called commonwealth. There is,
for example, the Commonwealth of Massachusetts. There is a Commonwealth of
Puerto Rico. There is a Commonwealth of the Northern Marianas. Is it any one
of these we wish to adopt? Or is it a combination of all three, borrowing from
each? It seems to me, we are chasing after the wrong prize. My suggestion, to
avoid a circuity of action, is to shift our focus for what we wish to be called to
what functions we wish to perform. It is my belief that this shift in emphasis is
what the great debate should be all about. What we should be doing then, is to
attempt to reach a consensus in the Virgin Islands about those federal government
functions that we wish to take over, and then ask Congress to give them over to
us. After vigorous and thorough discussion and a development of consensus of
those government functions we wish to exercise, we will then be in a better
position to go to Congress and request that these functions be delegated to the
Virgin Islands."
In drafting this compact, the recommendations advanced by now Governor Farrelly, were adopted. Article I of the
compact states the official designation of the Virgin Islands body politic under the compact shall be as determined by
the people in a referendum election to be held at the same time this compact is presented for ratification by the people,
and the said official designation shall be embodied in the Constitution of the Virgin Islands. Thank you very much.
Dr. Roderick Moorehead Thank you, Senator Berry, and all four of the panelists. I think you have gotten a
tremendous amount of information that many of you are anxious to question; but before we do that,I'd like to give
each of the panelists a very short time to make a statement about any of the other presentations that you have heard
and then we're going to open it to the floor. Attorney Leibowitz, anything that you it must be a burning comment; if
it's something you feel not so hot about, we'll go straight to the audience.
Attorney Leibowitz I don't know if it's burning, but let me say one thing. Status brings out an awful lot of
strains in society, in any society. And one shouldn't embark on it unless it means a lot, and you're going to get a lot
Peter already mentioned the indigenous rights group in connection with Guam. I was counsel to that commission in
the Bordallo years. And what happened there really was not much different than happens in any commission that is
started. It polarizes the situation and those people who are most nationalistic, most radical if you will, are the people
who will dominate the debate. The reason is clear. They care a lot. The people who don't care much are busy
watching TV and going out to dinner that night. The people who are passionate about it are at the meetings. I must
say I'm all for education and Dr. Richards as President said something that appears to be self-evident, but is indeed
very troubling. The longer the education program goes on, the more the situation gets painful, the more difficult and
nationalistic the situation is. And the best example was the Guam situation. In fact, in the Bordallo administration,
the deal, in effect, was cut. For a variety of reasons which we needn't get into here, the Governor and the Commission
decided not to cut it. When the new Governor got in, and in my judgment he made the right decision, a rather
courageous one, he decided to proceed as the previous Commission had adopted that statute and to proceed to go
forward. But Peter was quite right; he made it ever the more difficult to change in any respect what may be regarded
as the most radical provisions of the compact Not only the indigenous rights ones that Peter mentioned, but issues of
defense, issues of trade, issues of mutuality which were, in many ways, much more difficult although they haven't
caught the public political imagination in Guam. In sum if status is an issue that burns it is worth doing. But if it is
not burning, if you don't intend to get much, then it is not worth embarking upon. In my view, the Guam people did
start right. They decided, in my judgment correctly, that if they were going to do this, they were going to shoot the
moon; it was going to be big. And they were going to be greeted no matter whether they presented something that was
quite modified, quite easy, and quite palatable to Congress--they would be greeted the same way as Congress greets
all status change--total derision. And you should understand that you can say anything you want, Congress will greet
you the same way--with total derision and scorn at the idea. And I'll give one more example. I was Counsel in Guam
in 1973 to the first Political Status Commission, when the Marianas, for the first time, put forth their desires with
respect to the covenant. I'll focus only on one thing--the money. They argued for $105 million which when you
worked it out was $119 a person on a per capital basis. Everybody in Guam was unanimous. It was ridiculous.
Everybody in Congress was unanimous. It was ridiculous. Interviews were common with Congressman saying
absolutely not; it's ridiculous. The result? They got every single nickel, and they did it by remaining terribly firm and
terribly united. That is the key to all of this. It's very painful, but if one is very firm and very united, the Congress
will give because basically they don't care that much. You have to decide whether you care that much. If you care a
lot, eventually Congress gives. If you don't care a lot in the eyeball-to-eyeball confrontations and problems as to
whether it's constitutional and whether it's a bad precedent or whether it's bad policy and whether the bureaucratic
situation is correct, they will outlast you. But if through all that, you remain very firm and if you desire it even though
it's extremely painful, then you're likely to get something.
Dr. Moorehead Thank you for your advice. Mr. Tenorio.
Mr. Tenorio Well first I just like to say that I disagree with both Mr. Leibowitz and Mr. Rosenblatt. I am firmly
convinced that we have local autonomy, that we have self- government. Now it's possible that maybe the Virgin
Islands can get what we got because we were not a territory at the time when we were negotiating the covenant. We
were "independent"; we were equal with the United States, so we negotiated the terms. Some people like to think that
we got this from the Congress; we got this from the US. We didn't get anything from anybody. We had it, and we
just retained it, because as independent we had that right. Now I am convinced that eventually the Court will rule that
we have self-government pursuant to the Covenant. Our problem right now is, as I said, the US Executive branch
doesn't recognize it, and as long as we have a Governor who cannot answer back to the Department of Interior, then it
will be like that. But one day I hope to see a Governor who can talk back to the United States and tell them that under
the Covenant, you have to deal with the Resident Representative to the United States which was authorized by the
Covenant, established by the Constitution, clarified by US laws, that the Resident Representative is the official and the
only voice in Washington, DC, between the Northern Marianas and the US Government. I think if you should decide
to become a commonwealth, you should make it very clear as to what self-government, or how the US will respond to
the self- government provision of your agreement with the US. I'd like to mention at least one reason why I think the
people of Guam are having a rough time with their commonwealth act, and that is that they actually are asking for
more, more privileges, more rights than we got. And the fact is, Guam could not get that, in my opinion, because
Guam is a US territory already. Now I would say that we were not unreasonable. We were not unrealistic when we
were negotiating with the US for our status, and yet we could have, because we could have told the US, hey look if
you don't give it to us we are going to go elsewhere. And I'm sure that the US would not want us to do that. Like for
example, immigration. I just can't see, for example, how the US would give up the jurisdiction on immigration to
Guam. I can't see the US giving the right to Guam to the last voice on how the military is to conduct its affairs on the
island of Guam. We didn't even do that We leased property to the US government, and the US government can do
whatever it wants to do on that lease property. Now, to me, the entire island of Guam belongs to the United States, so
I don't see how the US is willing to tell Guam that yes you can tell us whether you agree with what the military is
going to do over there or not. I like to say that the people of Guam, at least, should be more realistic as to what they
can get from the United States government, especially the US Congress.
Dr. Moorehead Thank you. We appreciate the advice too. Attorney Rosenblatt.
Ambassador Rosenblatt Representative Tenorio, I'm sure that there'll be a lot of people in Washington who'll
be interested to hear that the Governor doesn't know how to stand up to the federal government I hadn't heard that
one!
I don't want to take up a lot of time because the really important thing here is Q & A and dialogue between us. But
I do want to add a small qualification to what Arnie said about the way in which big changes in territorial status are
received in Washington. I don't think it's really right to say that major departures in policy and status are received by
Congress with derision and scorn. I didn't have that experience when it was my obligation to work out a radical
departure in status between the United States and the Trust Territory. Not only was free association a significant
departure from existing federal arrangements or policy or even philosophy, it was new in the world. Nowhere before
had free association been tried except in two cases involving two small island groups associated with New Zealand,
and that arrangement was really quite different from what we worked out with Micronesia. I think that efforts to alter
territorial status are received with basic sympathy in Congress, at least by those members who are most importantly
involved in making the decisions on territorial policy. But I would also take issue with the prescription that if a
territory remains united and determined, it will necessarily get its way in all things. Congress and the Executive
Branch will tend to look on proposed changes in status with a very discriminating eye; which is to say that there are
certain things that they will listen to, and there are other things that they are going to be adamantly opposed to. So
long as we are dealing with a status which must fit under the federal Constitution, there are certain things that are
probably immutable. And those relate to fundamental powers of the federal government.
Dr. Moorehead Thank you. Senator Berry, any last, general comments before we go to the audience?
Senator Berry Yes, I have to run off; I have a little cough there. But I would like to say on behalf of the people
of the Virgin Islands, as a senator, since we have not negotiated any status yet with the Federal government, we will
take into consideration the experiences that have been expressed here by the three distinguished panelists. And there
are a few points that were made I didn't agree with, but I think that every person is entitled to their opinion, and this is
what discussions are all about. I would like to acknowledge the fact that Attorney Rosenblatt did make a specific
statement that if you have a referendum in an election year, the turnout is better, and the impact is better known. And
this is one of the issues that is confronting the body right now, because there are some who feel it should not be in an
election year and there are some of us who feel it should for several reasons--voter turnout, involvement of the
candidates and their position, because of course candidates will be molding public opinion. And also, the cost. And I
think that hopefully we will be able to convince a majority that this is the way to go. We have already gotten the
support of the Governor in having the election this year, the Chief Judge of the Territorial Court and Professor
Marilyn Krigger and others who have come forward and indicated the support for a referendum in the election year.
So this is our issue right now even though we appreciate the comments of the panelists. Thank you.
Dr. Moorehead Thank you. I'd like to note that I noticed Senator Magras and also Senator Brown in the
audience, and I'm certain they're going to take all of this discussion into their deliberations as well. At this point we'd
like to open the floor and any of you who have questions you'd like to direct to the panelists, now is your chance.
Panel II: po T1E
The Status of96
FREE ASSOCIATION
PANELISTS:
Paul Leary, University of the Virgin Islands. "The Historical Development of Free Association in the Pacific and the
Caribbean"
Roger Clark, Rutgers Law School. "A Critical View of Free Association"
Peter Rosenblatt, Attorney-at-Law, Washington, D.C.; Former U.S. Ambassador for Micronesia Status Negotiations;
Former Counsel, Guam Commission on Self-Determination. "Free Association Negotiations: A Case Study"
Marco Rigau, Author and Attorney. "Free Association as a Status Alternative for Unincorporated U.S. Territories
and Commonwealths"
Marilyn Krigger, University of the Virgin Islands. "Is Free Association the Future Direction for the U.S. Virgin
Islands?"
Moderator: Edith Bornn, Attorney, U.S. Virgin Islands
Attorney Edith Bornn Good afternoon everyone. I hope we haven't eaten too much so that we can pay
attention to this afternoon's session that promises to be most interesting. A little bit of review first. As you all know,
my name is Edith Bornn, and I have enjoyed serving, I'd like you to know, on the advisory panel in preparation for
this conference. I hope you will find that we have not done too bad a job. What has been very disconcerting is that
we can have panel after panel for the rest of the year, even up to election day, and still not exhaust the wonderful
scholars in this area. A moment of review. This morning we were privileged to hear about one of the major
alternatives for political status for the Virgin Islands. This was called commonwealth. I'm sure if we took away
nothing in particular, we learned that what commonwealth is differs from territory to territory. Substantively it's not a
pat definition. The rights and the privileges and the powers vary from territory to territory, perhaps depending on the
acumen and the effectiveness of the negotiator. We also learned that the process of obtaining that status varied. And
since that was fully discussed, I don't think we need to review it, but we should be conscious of it. And lastly I found
most significant, the fact that the vehicle that had been used by these various territories to achieve commonwealth
status has been termed by different names--a covenant, a compact, and so on. And I hope that we have a chance to
discuss that fully because I have some thoughts on that, and I'd like to hear what some of our experts think about the
significance of what you call the document that establishes your relationship with the Federal government. This
afternoon we're now going to what was considered a very creative and new idea some years back. And interestingly
enough we will hear from at least one of the speakers it's not so new at all. And this is called the Status of Free
Association. We have a very qualified panel to discuss this particular topic. First of all, we start out with Professor
Leary of our own University of the Virgin Islands, and we've been very successful in keeping him here; and frankly,
one of the reasons we've been able to keep him is because we've delayed deciding about status, and he's so interested
in this area and, as you know, has written so very much about it. I want you to know also that there's a copy of his
paper at the outside desk. If you didn't pick a copy up, be sure to get one. If it's exhausted, be sure to ask for one to
be sent to you. Next we will hear from Professor Clark of Rutgers University School of Law. Professor Clark is
going to be able to bring us a unique position on this. He is a New Zealander, a fellow islander. Granted, from a little
bit larger island than the Virgin Islands, but I think that perspective can help us a great deal. Professor Clark has
written many many articles on free association, and I hope he will share some of this with us as we go along in the
education on this area of options during the next several months. Professor Clark is also active in many community
activities that are familiar to us and of interest to us. He is a member of the International League for Human Rights,
and he is a member of the UN Committee on Crime Control. Next, we will hear from Attorney Rosenblatt, no
stranger to us here in the Virgin Islands. He's been down several times in connection with our many attempts of
constitutional progress. Attorney Rosenblatt also has the distinction of having worked with the Federal government
At one time he served under President Johnson's administration where he was seated right in the White House. And
more recently under President Carter where he was given the title of Ambassador to Micronesia for the purpose of
trying to effect a special status for that trust territory. Next, we have a neighbor from next door (he doesn't spend that
much time there anymore, but I understand will very shortly) and that is Attorney Marco Rigau. Attorney Rigau is a
co-author also of several books, but one in particular with Juan Garcia Passalacqua, whom I think we are all familiar
with, on the subject of free association and other status-related issues. He is a definite advocate for free association
for Puerto Rico. I've been told this, but from some of his writings, I'm not so sure that such a blanket statement is
accurate. But again, it probably goes to the matter of labels; he'll clarify this for us, I'm sure. Of special interest is
the fact that he's currently trying to get into politics. He's running for the position of senator-at-large for the Senate of
Puerto Rico. And I told him that it has not been unknown for sister islands to help each other out when it comes to the
vote. He wonders how that can be arranged; he may likely tackle some of us for support. Lastly we have Professor
Krigger. I don't often call her by that title, but I certainly would like to do so today. Marilyn Krigger has been a force
in this community for many many years. She has been in education most of these years but very active in
organizations that count. She's careful with her time, so she spends it where it will make the most impact. Professor
Krigger is now a Professor of History of this University. She wrote her Ph.D thesis on Race Relations in the USVI,
our islands; and she has been Chairperson of the Social Sciences Division of UVI. So with these thumbnail
descriptions of our panelists, I'd like to call on Dr. Leary to open up the subject. (I failed to mention we also have a
paper from Dr. Clark which is available outside.)
Dr. Leary Thank you. Yes, I was just about to say that. And also we are going to make available copies of
excerpts from Attorney Rigau's book on free association that will be available tomorrow. We can't make it available
today, but you'll be able to pick up his articles tomorrow, in addition to copies of my presentation and that of
Professor Clark. I put my watch right in front of me because I've been cautioned a couple of times that we're going to
try and improve on this morning's record in terms of panelists keeping to their allotted fifteen minutes.
My task is basically similar to that performed by Arnold Leibowitz this morning; that is, to provide a kind of
context and overview within which to evaluate some of the later presentations. Necessarily I'm going to speak in
somewhat general terms and will avoid, as much as possible, technicalities. I should also mention, in response to
Arnold's concern about him being designated as a legal scholar rather than an attorney, it actually was, from my
viewpoint, meant as a compliment; so you can look at it in that way. I like to think of myself occasionally as a scholar
when I'm not driving people to lunch and opening doors and supervising the cleaning of the auditorium and other
kinds of tasks.
The first place to begin with the status of free association--and my job will be to look at its historical development
in the Caribbean and the Pacific--is to begin with the definition. There is some disagreement as to exactly what this
association entails. Some see it in very broad terms; others argue that it should be restricted to certain definitions that
have emerged from United Nations resolutions. I will leave that topic, however, to others on the panel; but just to be
sure that you know what I'm talking about, I will give my definition of free association, then I will apply it in the
Pacific and in the Caribbean, but with more emphasis on the Pacific. In the Caribbean, it is now a matter of history,
since we no longer have any freely associated states, with the possible exceptions of the Kingdom of the Netherlands,
which I'm not going to cover. My definition of free association takes the two terms, free and association, and
elaborates on them. Free association is when a smaller, weaker entity voluntarily--and the emphasis here is on
voluntarily--agrees to affiliate itself, to associate itself, with a larger entity, usually for reasons having to do with
defense and economics. As a result of an agreement that the two parties reach, they decide on a division of
responsibility in the three areas of domestic affairs, defense and foreign relations. Generally what happens (at least
what's happened in all the previous cases) is that the freely associated state acquires full responsibility for domestic
affairs and agrees to share in some measure, although not always, defense and foreign relations with the larger power.
An important feature of free association, given the voluntary nature of the agreement, is that it provides for unilateral
termination. In other words, either party following certain stipulated processes within the agreement can leave it at
any time.
In the Pacific, the first example we have of free association has to do with very small entities that are located about
2,000 miles north-northeast of New Zealand called the Cook Islafds, followed subsequently by another small entity,
Niue. These small Pacific Islands decided to associate themselves with New Zealand. I'll get into the details of their
association in a second. More recently in the Pacific we have seen the emergence of other forms of free association, at
least labeled free association, involving various entities in Micronesia, specifically the Marshall Islands; the Federated
States of Micronesia (which is a federation of four different island groups) and Palau. Of the three, two have now
been approved by Congress and the President of the United States and have been put into effect. The agreement with
Paulau has been delayed because of a dispute dealing with a provision in their constitution regarding the presence of
nuclear materials in their territory, but I'll leave that for subsequent discussion by other panelists. In the Caribbean,
we've had our own example of free association when the United Kingdom, following the breakup of the West Indian
Federation in the early 1960s, entered into such agreements with a number of Leeward and Windward Island states
that all subsequently became independent. Because it was a transitory arrangement in this part of the world, I'm not
going to focus too much on that particular form of association.
Now let's begin with the Cook Islands and New Zealand. I feel this is a particularly important form of association,
despite the small size of the Cook Islands and Niue, because it set a precedent. It was the first time that we had this
term applied to this sort of relationship between two entities or states. And interestingly enough, it's the only form of
free association that has, so far, been approved by the United Nations General Assembly as satisfying its requirements
with respect to self determination, particularly requirements flowing from Resolutions 1514 and 1541, which other
panelists, I'm sure, will go into in more detail. Now a little bit of historical background. In the Nineteenth Century
Great Britain established a protectorate over the area of the Cook Islands, beginning with missionaries then leading to
formal governmental control. In 1901, Great Britain ceded the Cooks to New Zealand, who governed them in a
colonial fashion by the use of a resident commissioner. In 1962, given the fact that this type of colonial arrangement
was no longer internationally legitimate, New Zealand asked the Cook Islands to choose what they wanted in their
future relationship. They gave them a choice of independence, integration, or free association. The Cooks chose free
association. As a result, discussions ensued between the Cook Island legislature and that of New Zealand, resulting in
the approval of a Cook Island's Constitution in 1964. Subsequently, an election was held in the Cook Islands in which
the party that was in favor of the constitution was returned with a majority of legislative seats. They in turn passed
this constitution and put it into effect. So interestingly enough there was never a popular plebiscite in the Cooks. The
process involved simply negotiations between legislatures.
So in 1965 this new form of association, the first of its type, went into effect. What were some of its features? The
Cooks retained complete authority over all their domestic affairs. New Zealand could only legislate for them with the
approval of the Cooks, so the Cooks had complete control. They ceded authority to New Zealand over defense and
foreign relations, given their small size and geographical isolation. This agreement was terminable by either party by
a two- thirds vote of their legislatures. What has happened subsequent to that initial arrangement has been a process
of constitutional evolution in a kind of loose style that is more common in the British system than the American. The
Cooks have gradually acquired de facto authority over the areas of foreign relations that are important to them, such as
those dealing with fishery rights and the Law of the Sea, and have also reached a situation where New Zealand would
probably not find it feasible even to come to their defense unless the Cooks wanted it. What has happened has been
the evolution of this association into such a loosely structured form that it's about the closest you can possibly come to
independence short of formal independence. In fact, in a recent exchange of memoranda that Roger Clark made
available to me, the New Zealand government spoke more in terms of the spirit of the association between the two
parties than of legal or constitutional requirements. So it's a very loose form of association. And as I indicated, this
was accepted by the UN General Assembly in 1965 as satisfying the requirements of the UN Charter for self-
determination, as interpreted by the General Assembly in subsequent resolutions.
Subsequent to the Cook agreements, the United States came to similar agreements in recent years with the
three island entities I previously mentioned in Micronesia. Let me give you just a little historical background since
this may be confusing to some people who only this morning heard about the Trusteeship and other kinds of
terminology which not everyone is acquainted with. After World War I, this vast area in the Pacific encompassing a
number of small islands, ranging from the central to the western Pacific, was taken over by the Japanese under a
mandate of the League of Nations. The Japanese, it has been claimed, fortified many of these islands in preparation
for World War II. As a result, when the war did come, the United States had to regain control of the Pacific; it had to
fight, in many cases, island by island or with leapfrogging tactics in some cases. At any rate, many battles were
fought in these islands, including in the Northern Marianas, where one of the bloodiest battles of World War II was
fought. Hence, the United States was very sensitive following World War II to the strategic necessity to maintain
control over this area in the Pacific and never again allow it to fall into the hands of a hostile power. Now how to do
this. What was arranged was a trusteeship under the United Nations system which was unique. It was called a
Strategic Trusteeship. What it meant was that instead of reporting to the General Assembly and then to the Trusteeship
Council monitoring this arrangement, the Security Council was given responsibility in recognition of the strategic
dimension of the trusteeship. In addition, the United States was given authority in the area of defense to carry out
certain types of defense-related strategic military activities. For example, the Marshall Islands became the site of
many of the large-scale atomic testing programs that were carried out in the late 40s and early 50s. I'm sure you're all
familiar with the words Bikini and Eniwetok. These were the sites in the Marshall Islands that were used for above-
ground nuclear explosions resulting, I might add, in a great deal of controversy, because it involved taking people off
their islands and relocating them, and in addition, resulting in a degree of contamination that to this day still has not
been resolved. And it's also resulted in a great deal of legal claims and claims for indemnity and so on. At any rate, it
was a special kind of trusteeship because of the military and defense background. And that military and defense
background remains central throughout this entire period and, I would say, up to today.
Beginning in 1965, a Congress of Micronesia was established, which in '67 established a Political Status
Commission. From the beginning the Micronesians, with the exception of the Northern Marianas district, were
concerned about a looser association than either unincorporated territory or commonwealth. They were basically
choosing between independence and free association. What made free association attractive to them was the fact that,
under the tutelage of the United States, they had developed such a heavy economic dependency on American support
to sustain their standard of living that it became, at a certain point, inconceivable, in economic terms, for them to
disassociate themselves completely. Free association seemed a kind of nice compromise whereby they could maintain
the economic connection yet secure broad authority over domestic affairs, negotiate something in the area of foreign
relations in terms of how much authority they would have, and concede to the United States control over defense.
Those are long complex years of negotiations in which Ambassador Rosenblatt was involved during the Carter
administration, and I won't go into all the details. Let's just say that a key event happened in 1972, when the Northern
Marianas decided that they didn't want this kind of loose form of association and opted to go their own way and to
negotiate separately for a commonwealth which was described this morning. Then the Trust Territory, which
previously had been governed as a whole, fragmented into the three districts of Palau, the Marshall Islands, and the
Federated States of Micronesia, which pursued parallel negotiations with the United States. They came up with
similar forms of status, although there are some differences not important for the purpose of my presentation.
Between '82 and '83 compacts were signed between the United States and these three areas. In '83 they were ratified
by plebiscites held in these three states in Micronesia. They were subsequently approved by Congress in 1986--with
the exception of Paulau--and have been signed into law. The joint resolution of Congress was signed by the President
of the United States. So with respect to two of these three areas, these association agreements are fully in effect.
Now what are some of the major features? In broad terms, Micronesians gained control over their internal affairs
and control over their foreign affairs, with a caveat that if there was a conflict between their exercise of foreign
relations and United States control over defense, which was ceded by the compact, that there was a provision for how
this could be reconciled. Suppose, for example, that the Marshall Islands decided they wanted to establish some kind
of diplomatic contact with a socialist or communist state. This might be seen by the United States as not in keeping
with the defense control they have, so there might be an area of conflict. The United States gained control over
defense, to defend Micronesia as if it were a part of the United States, including the right to foreclose the use of this
area to third parties, that is, other states except the United States and the Micronesian states, in perpetuity. This would
be an American zone of control in terms of excluding for the purpose of national security possibly hostile foreign
entities. The United States provides extensive financial assistance under the terms of the compact and both sides
retain the right of unilateral termination, although the procedure is somewhat more complicated than it was in the case
of the British associated states.
There are some remaining questions, however, about this free association that has been entered into in the Pacific.
One is the question of whether or not the United States is obligated to submit it to the United Nations Security Council
for termination. The path the United States seems to be taking is that it simply has to notify the UN that the
trusteeship is over, rather than having to seek its approval. Some legal scholars argue that this is not a correct
procedure under international law, and that it will mean that these entities have been born under the light of
international suspicion and will find it difficult to gain legitimacy in the international community. In terms of
legitimacy there is the question of whether or not the United States defense interests are so strong as to really set such
severe practical limits on unilateral termination as to make it meaningless, especially when you consider the provision
that there'll be exclusion of third parties in perpetuity with respect to entry into this area for purposes of defense.
There's also the record the United States established during the trusteeship which has many blemishes. I covered it in
one of the articles I did that was published in the Journal of the College of the Virgin Islands, and copies are available
if you're interested in looking at it. There was the atomic testing program which I mentioned, which has left
prolonged scars in that area. And then there are certain political issues involving Cold War rivalries. Obviously the
United States involvement in this area is going to be brought into an East-West type of situation, whereas with the
Cook Islands and New Zealand it's not important in terms of international security affairs. But Micronesia is a central
part of American Pacific strategy, and of course we can expect the Soviet Union, the socialist states and non-aligned
states, to raise some serious questions about the political ramifications of these accords. That's basically it. I don't
think it's necessary to go into the Caribbean freely associated states since, beginning with Grenada, they all eventually
ended up as independent entities. However, it is included in the paper for those who want to read more about it
Finally, I just want to make two points. It seems to me the remaining questions, at least in my mind, about the free
association form of status, are, first of all, is it really a permanent solution to the question of how smaller entities can
voluntarily affiliate with larger ones and satisfy mutually agreed upon objectives, or is it simply a stop on the way to
independence? In other words, the Cook Islands seem to be about as close to independence as you can get without
going independent. Perhaps someday they will. In the Caribbean, the British associated states eventually became
independent. And who knows? Micronesia, given some of the grumblings and undercurrents that we can pick up, and
some of the overt comments such as we heard from Representative Tenorio, may some day decide that this is the best
path for them. The second question is, are they really legitimate? Under international law, can we expect recognition
by other states of agreements that will carry with them the suspicion that it is a kind of disguised way for a larger
entity to maintain control over a smaller one that has certain strategic or other forms of interest to it. I'm not trying to
settle these issues today, but they are the kinds of issues that have dominated the discussion with respect to free
association, and I know it will be elaborated on in greater detail by my fellow panelists. I'd like to thank you for your
attention, and I'll welcome questions during the question and answer period.
Attorney E. Bornn Thank you, Dr. Leary. And as I said a copy of his paper is available outside. Now we have
Professor Clark of New Zealand giving us a critical review of the topic and concept of free association. Dr. Clark.
Dr. Clark Thank you very much madam chairman. I must correct one slight comment you made just to set my
biases out in front of you. You did admit that I am a New Zealander, and it's a little hard to deny with this funny
accent, but in addition, I'm the Vice President of the International League for Human Rights which is a non-
governmental organization in consultative status with the United Nations. That means two things. First, I believe in
the United Nations, a topic which has barely been mentioned in the course of the proceedings today. Secondly, I
believe very strongly in the right to self-determination which is enshrined in United Nations Charter, and, as Dr. Leary
mentioned, in subsequent resolutions of the General Assembly of the United Nations.
I want to do two things to follow on from Dr. Leary's masterful background analysis. I shall be somewhat critical
of the Compact entered into with the three Micronesian entities in the light of Resolution 1541 of the General
Assembly of the United Nations. I want to argue that that resolution should be taken seriously and that there are some
serious flaws with the Micronesian arrangements when one reads Resolution 1541. Secondly, I should like to talk
about the problem, the very difficult problem, of drawing a line between foreign affairs or defense which is delegated
to the larger power in a free association arrangement and those other affairs, however defined, over which control is
retained by the freely associated state. There are some problems with those questions which are largely being
resolved in the Cook Island context. There are some ongoing and I believe fundamental problems with those issues in
relation to the Micronesian entities. Calling something "free association" does not automatically confer legitimacy or
solve the inevitable questions of detail.
Firstly, some thoughts on Resolution 1541, a resolution adopted by the General Assembly in 1960, in some ways a
conservative resolution. It was adopted at a time when what one can call a "newly independent lobby" was flexing its
muscle in the General Assembly. But it is a resolution which talks about alternative outcomes of decolonization and
suggests that decolonization can come to an end not only by means of independence, but also by means of integration
with another independent state, and by means of free association. The resolution goes on and discusses some criteria
for integration and for a free association. These were what I suppose one can call prophylactic rules designed by the
General Assembly to prevent a status relationship, a status of "free association", for example, from being the old
colonial rosebush by another name. Independence was rather clearly the preferred outcome in the General Assembly,
but free association might just pass muster if it were accompanied by the power on the part of the freely associated
entity to bow out unilaterally. Let me read the relevant language from Principle 7 of Resolution 1541. It says, free
association should be the result of a free and voluntary choice--Dr. Leary's point--by the peoples of the territory
concerned expressed through informed and democratic processes. It should be one which respects the individuality
and the cultural characteristics of the territory and its peoples--and this is the bit that I underlined--and retains for the
peoples of the territory which is associated with an independent state, the freedom to modify that status by expression
of their will by democratic means and through constitutional processes. The power to opt out is what the Micronesian
Compacts lack.
There's an underlying thought beneath all of this and that is, no matter how enthusiastically or voluntarily people or
a people agree to some kinds of arrangements, they may not be enforceable because of some fundamental policies of
the legal system in question. We speak in American and in English law of some kinds of contracts as being void as
contrary to public policy. For example, agreements for slavery or prostitution. The Uniform Commercial Code, one
of my favorite analogies, talks about some bargains being unconscionable. Some kinds of ripoffs are not enforceable
because they're just that--ripoffs. Sometimes in legal systems we describe those kinds of deals in Latin, doing I
suppose what The Mikado talks about, giving "artistic verisimilitude to an otherwise bald and unconvincing
narrative". We talk about things as being contra bonos mores-- contrary to good morals--or in the international
lawyer's phrase, contrary to jus cogens--contrary to some fundamental norms of the system. Now the principle of
decolonization, the principle of self-determination, is a principle of jus cogens, and I've suggested in the past--and I'm
afraid insulted some of my Micronesian friends-that there is an analogy between the deal which Mr. Rosenblatt and
his predecessors and successors cut and a deal for slavery or prostitution. It seems to me that it serves to promote the
same kinds of problems. But I've decided to abandon the slavery and prostitution analogies in light of a recent
decision of the New Jersey Supreme Court in the Baby M case. You remember the surrogate motherhood case? The
Supreme Court of New Jersey said this, ladies and gentlemen: "There are, in a civilized society, some things money
cannot buy. In America we decided long ago that merely because conduct purchased by money was 'voluntary' does
not mean that it is good or beyond regulation or prohibition." My argument concerning the Compacts with the
Micronesian states is the argument Dr. Leary has already mentioned, namely the way the deal has been structured.
The entities were never given a proper opportunity to choose independence. The 1980 versions of the treaties
structured by Mr. Rosenblatt at least allowed unilateral termination subject to a 15-year military arrangement. By
1982 and 1986 the military arrangements had become much more burdensome. The entities cannot effectively opt out
unilaterally. Essentially it is a permanent military arrangement, and, as I argue more fully in my paper, I believe if
you look carefully at that deal, any fair application of Resolution 1541 suggests that the arrangements are simply not
on in terms of the United Nations standards.
I might add that that occasionally in life we international lawyers get an opportunity to say I told you so. And I felt
that one of those opportunities came to me this morning in listening to Mr. Tenorio. In 1975 and 1976, I was an
entirely lonely and lone voice in the Trusteeship Council saying that the deal with the Northern Marianas was a rotten
deal and it failed on any fair application of Resolution 1541 of the General Assembly which also speaks of standards
for "integration".* That view did not prevail, was not found acceptable to the Micronesians, to the United States or to
the UN Trusteeship Council, but I must say that I felt, listening to Mr. Tenorio, that I was right. They got a lousy deal
and are stuck with a lousy deal. He's trying very hard to revise in a classic revisionist way the deal that they got.
Good luck to him in that endeavor, but it is a deal that I believe also failed in terms of the application of Resolution
1541.
Let me move to my second point which is the question of the boundary between foreign affairs, defense and other
matters. And related to that is the question Dr. Leary mentioned of the freedom of action of the freely associated state.
And there's another issue also at the back of the it which he didn't mention. That's the question of dispute settlement.
The Cook Islands Act of 1965 was at the time the only thing that was written down about the New Zealand deal. I
have to say I've always felt in my New Zealander hat, that the American deal is over-lawyered. We've written down
hundreds and hundreds of pages of agreements on the arrangements for the Trust Territory of the Pacific Islands. New
Zealanders took a different view of it all, and I think it has something to do with a different legal culture.
But in any event, the Cook Islands Act talks about the foreign affairs power as follows. It says nothing in this Act
shall affect the responsibility of her Majesty the Queen in right of New Zealand for the external affairs and defense of
the Cook Islands, those responsibilities to be discharged after consultation by the Prime Minister of New Zealand with
the Prime Minister of the Cook Islands. That is probably the most significant part of the deal. I recollect strongly at
the time when it was adopted that nobody really knew what it meant. You will notice it uses the word "responsibility"
without defining it. It also uses the words "Her Majesty the Queen in right of New Zealand". We all understood what
that meant. The Queen of New Zealand, who also happens to be the Queen of the United Kingdom, was also to be the
head of state of the Cook Islands. And the reference to her Majesty the Queen in right of New Zealand meant it was
*See Clark "Self-Determination and Free Association--Should the United Nations Terminate the Pacific Islands
Trust?" 21 Harvard International Law Journal 1, 75-78 (1986).
the New Zealand cabinet, as a practical matter, that had responsibility. Now I think there were some who thought that
the New Zealand government would simply carry out the foreign affairs of the Cook Islands, make choices, make
decisions, "exercise responsibility" in that sense. But within a year or two, it became clear that that wasn't the
intention of at least most of the drafters, and it certainly wasn't the intention of the Cook Islanders. I'm never quite
sure whether we followed the original intent of the deal or, as Dr. Leary suggests, an evolution of it, but certainly as
time has gone by, it has become quite clear that the Cook Islands is perfectly entitled to do what it likes in foreign
affairs. It has entered into three treaties with the United States; it's entered into some regional treaties. It has, for
example, taken a different position on probably the most fundamental aspect of New Zealand's current foreign policy,
namely, United States nukes. New Zealand itself has taken the position that nukes are not welcome. The Cook
Islands' Prime Minister made a statement saying, bring your nukes in; we need the money. The relationship has
nonetheless survived that kind of buffeting-just. It very nearly came to an end at a previous period over the question
of which China to deal with. At a time when New Zealand was cheerfully recognizing the Peoples Republic of China
in the early '70s, the Cook Islands were continuing to deal with the Taiwan authorities. But the relationship managed
to survive that. There is no dispute settlement procedure set down in the arrangement, and it's quite clear that
ultimately a government to government negotiation results in a deal or there is no deal, which is to say, there is an
agreement to differ.
Now the Compacts with the Federated States of Micronesia, with Palau and with the Marshall Islands, on the face
of them appear to give more than the New Zealand arrangement. They expressly give power over foreign affairs. But
I have to say that when you look a little more closely, it's like the efforts of some of the more unscrupulous insurance
companies. What you get on page one is taken away by the fine print in the later pages. Some exceptions are carved
out. The United States gives full authority over foreign affairs to the Micronesians all right, but it also gives the
United States, and I quote, "full authority and responsibility for security and defense". Moreover, and I'm quoting
from the Palau one, but the others are essentially the same, "Palau shall refrain from actions which the Government of
the United States determines after consultation with the Micronesian entity to be incompatible with its authority and
responsibility for security and defense". Now it's rather blunt when you think about it. The United States makes a
"determination" and Palau and the other entities "shall refrain". The difficult thing of course is what's security and
defense on one hand and foreign affairs on the other. But the U.S. decides! And Dr. Leary, I think, hit the nail right
on the head with his particular example of do you want to deal, for example, with the North Koreans or the South
Koreans. It's pretty clear that if the United States doesn't want you to cut a cultural arrangement with North Korea,
they can determine that's incompatible with their authority and your arrangement is down the tubes. You're forced
not to deal with them in that particular way. Moreover, there's a dispute settlement procedure set out in there.
Essentially in relation to the military parts of the deal, it goes to a joint committee. And a joint committee is chaired
by the senior United States military commander in the Pacific area. If you lose in the joint committee chaired by the
military, you being Palau for example, you can take the matter up with the United States Secretary of Defense, for
heaven's sake. There's no real question who calls the ultimate shots in this field. The gloves are off, and the military
is ultimately in charge!
I talk in the paper about the question of archipelagic claims. Palau, for example, and the Federated States of
Micronesia fairly clearly have the requisite geography to support some claim under international law to draw
boundary lines of an archipelagic nature. In another part of the fine print of the deal in related agreements to the
Compact, they promised, in ways that are totally unclear to me, not to make that particular claim. They've given up
part of their law of the sea rights that they might well have under customary international law as part of the deal with
the United States, and it is quite unclear to me, and also I might add to some experts in that area, as to what the
agreement does. Again, the authority of Palau and the Federated States in foreign affairs is severely undercut in the
fine print.
My time is passing. I must say this in conclusion. Twenty-odd years ago, I recall speculating along with a number
of other commentators that free association would prove to be a popular way to deal with the decolonization of small
territories. It would provide a solution to the mini-state problem by affording small states the administrative and
diplomatic assistance they needed from a benign former colonial power as they worked their way towards a dignified
place in the world community. It would, however, as Dr. Leary has suggested, represent something of a way station
on the road to independence.
I seem to been right about the way station idea. The West Indies Associated States have left the fold. The Cook
Islands have come close to doing so, even close to being pushed out of the nest on occasion by New Zealand.
I was wrong about the potential popularity of the idea. The United Nations never gave its blessing to West Indies
arrangements. Small Pacific states like Nauru, Kiribati and Tuvalu, which might have gone the free association route,
opted instead for independence. Most of the small Pacific states have indeed not found it necessary to enter into any
military protection treaties with a former colonial power, or anyone else for that matter.
Perhaps I was also wrong in believing in benign colonial powers. The Trust Territory Compacts have as their basic
object not so much the continuing nurture of the peoples of the Trust Territory as the perpetuation of the self-defined
security interests of the colonial power. As an exercise in decolonization, free association as applied to the Trust
Territory of the Pacific Islands is, I believe, a distorted one. Thank you.
Atty. Bornn That was really a capsule summary. It was very informative. And now we hear from Ambassador
Rosenblatt. I suspect from the topic he has, "Free Association Negotiations: A Case Study", that we're likely to get
some how-tos. Is that correct, Ambassador?
Ambassador Rosenblatt Yes, ma'am.
Atty. Bornn Thank you.
Ambassador Rosenblatt Thank you, Mrs. Bornn. Now let me say at the outset that I'm going to take the
privilege of slightly amending that topic; though I will say, in defense of myself in doing so, that I have Dr. Leary's
consent. I would like to introduce the question of applying the lessons of this case study in Micronesia to the Virgin
Islands. In so doing I will adapt a similar presentation that I made at the invitation of my good friend, Marco Rigau, in
Puerto Rico about two years ago where I attempted to apply the Micronesian status negotiations to the situation in
Puerto Rico. As you can imagine I also have a few comments to make about Roger Clark's presentation, but if I may,
I'll reserve my comments until a later stage of these proceedings.
Let me begin then with a comment on the similarities and distinctions between the situations of the Virgin Islands
and Micronesia; at least Micronesia prior to the status negotiations. The similarities might be described as follows:
They are both small, insular areas. They are both economically dependent on US Government grants. They are both
governed as territories, although the Micronesians had a somewhat dissimilar juridical status. One can also say that no
provision had been made in either case for a natural avenue of evolution into another political status. Independence, as
I understand it, is not desired in the Virgin Islands for a variety of reasons, as it was not in the case of Micronesia.
And finally one can also say that statehood is not a practical alternative in either case due to questions of size and
inability of the smaller entity to contribute to the support of the federal government, which is one of the major criteria
for statehood in traditional US practice.
On the other hand, there are certain distinctions. In the case of the Micronesians, there was their remoteness from
the United States, which produces an atmosphere of vulnerability. The Micronesians suffered some of the worst
ravages of the Second World War on their own territory; a situation which fortunately did not apply to the Virgin
Islands. One can also say that the Virgin Islands are sovereign US territory, whereas Micronesia was never sovereign
US territory. The US administered the area under a trusteeship agreement with the United Nations. The citizens of
the Virgin Islands are US citizens; the Micronesians never were US citizens. The trusteeship agreement imposed
certain obligations on the United States to negotiate and to confer a future political status which the Micronesians
desired. And finally, the Micronesians knew the status that they wanted when the negotiations began in 1970-71 and
throughout, with the exception of the subsequent change made in the case of the Northern Marianas. To the best of my
knowledge, no such determination has been reached in the Virgin Islands.
The practical consequences of these similarities and distinctions are mainly in the realm of procedure. And as we
lawyers say, very often one's case is made or lost in the area of procedure. Thus, the Reagan Administration will not
set up an office paralleling the Office for Micronesian Status Negotiations to deal with U.S. citizens. Perhaps that
could change, but I see no sign of that in Washington. But certainly the United States can find other mechanisms for
dealing with change in a US territory.
Now the question of just what free association is has been gone into very competently by Professor Leary and I will
not attempt to cover that same ground, so I will skip that portion of my prepared remarks. I will go directly into the
question of what lessons there are for the Virgin Islands in the Micronesian Status Negotiations, in the view of one
central participant in those negotiations.
Let us begin with the question--the all important question-- of the right to negotiate. The Micronesians' right to
negotiate a change in their political status with the United States Government, that is, with the Executive Branch of
the United States Government, was not subject to question because of the provisions of the Trusteeship Agreement
which provided the United States its right to govern in the first place. Now the Virgin Islands and Guam are faced
with the question of whether the federal government will recognize an equivalent right on the part of the US citizens
residing in the Virgin Islands, Guam or any other US flag territory. We had a little dialogue this morning in the
commonwealth panel on just what that meant. An opportunity to negotiate has been recognized if one were prepared
to accept the terms currently being offered by Congress to the Guamanians; that is, informal, off-the record
discussions which are real negotiations but which Congress doesn't choose to call by that name. But this is an open
question which the Guamanians need to resolve for themselves. The United States has never negotiated with a group
of its own citizens for a more remote status which, of course, free association is. It evokes for many members of
Congress and for other American citizens, recollections which may or may not be on the mark, of the US Civil War
where the whole issue was whether groups of US citizens--states in that case--have the right to transform a closer
relationship with the United States into a more remote one. An interesting and very practical concern for the future.
The second question the status to be negotiated. The Micronesians were offered a full range of options except for
statehood. Statehood was seen as not applicable to the situation of the Micronesians nor was it desired by the
Micronesians. But they were indeed offered the full range of other choices. Free association was their free choice.
The question before the negotiators was how to define free association, and that's what the negotiations were all
about. But the negotiators for both the territory and for the United States Government (which I have been) must be
careful to avoid the "Chinese restaurant" approach. One does not normally have the privilege of choosing one dish
from status option A and another from status option B. If one makes a decision to negotiate a certain status option--let
us say for the purposes of this panel's discussion free association--then one must live within the vague outlines of the
free association status. The Micronesians chose free association because they decided they wanted the elimination of
federal interference inherent in a closer relationship such as commonwealth, more than the fiscal, military, and
political security that comes from integration with a super-power which they knew well and, basically, favorably.
They opted, instead, for modified interference coupled with modified guarantees under free association. Free
association was unquestionably made more attractive by the offer of a bankable fifteen year guarantee of aid which
would not have been available under any of the other statuses. It could not be arranged under settled US territorial
policy nor could it be arranged if the Micronesians had become independent. The Congress does not, as a matter of
principle, extend multi-year aid to any foreign country. The Micronesians no doubt also felt that the promise of
stability which arose from a free association with the United States would make those islands more attractive to
potential foreign investment. During the course of the negotiations the Micronesians came to understand that free
association is not a one-way street, with all the advantages of both the territorial status and independence. As we went
through these long and difficult negotiations, they came to understand exactly what was involved. I believe, to a
moral certainty, that they understood what they were getting into and that they chose it freely.
A third point; the need for internal US Government organization to deal with such matters as change of status.
After World War II, the Interior Department exercised the Executive Branch's responsibilities for the territories,
including the Trust Territory of the Pacific Islands. But when the time came to negotiate the future political status of
Micronesia, four successive federal administrations decided not to entrust the Department of the Interior with this
responsibility. If the Micronesian status negotiations are any guide for the future, the Virgin Islands, if it attempts to
negotiate something like free association, will run into the same dilemma. Maybe the answer is to be found in Guam's
decision to go to Congress with its proposed Commonwealth Act. Maybe it will be found through the as yet
unresolved procedures for informal contacts between Guam's representatives and the Executive Branch and Congress,
but this is still unsettled. It is unlikely, as I said earlier, that the federal government would agree to another Office for
Micronesian Status Negotiations, to deal with its own citizens in any territory.
Fourth. There has got to be an internal territorial consensus on future political status. One must begin addressing
this topic by recognizing that there has been no federal territorial policy since at least the admission of the state of
Arizona in the early years of this century. There is certainly an administrative procedure for dealing with the
territories. But no administration in the last couple of generations has tried to formulate any long-range policy. The
Carter administration, of which I was a part, attempted to deal with this problem, but not in a very organized or
effective manner. No office of the federal government, with the exception of the rather ineffectual Office of
Territorial and International Affairs at Interior, thinks about territorial policy on a regular basis. Congressional
committees are too small and too overwhelmed with day-to-day issues for long-range thinking. There was a policy
formulated for the future political status of the Trust Territory because the Trust Territory is sui generis, an individual
situation for which there is no parallel. But it would probably take an emergency in one of the other territories to get
the federal government--Executive Branch, or the Legislative Branch-- to map out a long-term future political status
policy. Most Americans think of territories as as much a part of the US as any state. And they are, at the same time,
ashamed of the fact that the US citizens in those territories do not enjoy the same rights as others. So there's a
question of conscience which figures into this question. The only political status principle applicable to the territories
to have survived from the 19th Century is the conviction that the desires of the inhabitants of the territories should
play a guiding role in their future political development--but even this must be modified since it is inconceivable at
present, at least as seen from Washington, that tiny territories like the Virgin Islands could achieve statehood. For any
other status, there is a corollary principle handed down from the 19th Century that the people of the territories choose,
but the federal government need not and will not move on the question unless and until there is a consensus in the
territory on future political status. Lacking such consensus expressed in some unmistakable fashion and probably
repeatedly, it is unlikely that the federal government will feel compelled, or indeed permitted, to move on the subject.
Fifth, a new political status should occupy a recognized place in international law. International law on
decolonization strongly favors independence as Professor Clark has said. It also recognizes the right of integration
into another sovereign. The third choice, as Professor Clark has said, is free association. But since free association is
defined only by the agreement for free association itself, one must give careful thought to the acceptability of the
agreement to the world community and under international law. This is not solely an academic question, since a
failure to pass the tests of fair arms-length negotiations, a relationship of equality and voluntariness of association,
could result in international non- recognition of the resulting free association agreement. I am proud to say that the
Micronesian compact meets those standards, and I cannot conceive of any US-Virgin Islands agreement which would
fail it.
Sixth, the agreement must suit the needs of both parties. After 1977, the Micronesian Status Negotiations were
conducted on the basis of terms set by the freely elected Congress of Micronesia. The US decided its national
objectives could be met within those terms. I cautioned the other parties to the negotiations in 1977 and early in 1978
that we would have to define our respective major objectives in the negotiations narrowly to overcome the problems
that caused the 1970-'76 phase of the negotiations to fail, and to be flexible about lower priority objectives. That's
why we reached agreement within five months of the Carter administration's initiation of the status negotiations in
1977. The basis on which we did that was quite simply that the US achieved its national security objectives, while
conceding to the Micronesians full control of their own affairs and agreeing to generous economic support which
gives the Micronesians a shot at self sufficiency. The challenge for any US-Virgin Islands negotiations along this line
would be for both parties to define their most important negotiating objectives with intelligence, sympathy for the
objectives of the other party, and above all, restraint.
Seventh and finally, the details of the new negotiated political status should not be constrained by bounds of
existing status arrangements. And here I pick up on the final comments of Paul Leary's very excellent analysis.
Independence and statehood present no problems of definition. Do statehood, independence, territorial status and the
US-Micronesian free association agreement exhaust all of the status options? The US and Puerto Rico invented a new
commonwealth bottle for old territorial wine. The US and Micronesia created a new bottle and new wine. If so much
imagination was displayed in those contexts, why should we exclude the possibility of finding a new, equal place in
the federal union, under the US Constitution, for small offshore territories which have outgrown territorial status but
are too small for separate statehood? This would require an amendment to the Federal Constitution and it is,
therefore, not practicable in the presently foreseeable future, but every journey begins with a first step.
Thank you.
Atty. Bornn Thank you, sir. You've more than pointed the way. And now we have Attorney Marco Rigau of
Puerto Rico.
Attorney Marco Rigau It is indeed a great pleasure to visit the Virgin Islands, this time not to do some
shopping-- maybe to do some selling. The first thing I want to say is that when we talk about deciding on alternatives
of status--that is, the political, legal organization of a state-that's the decision of the Virgin Islands, with the consent
and participation of the United States and perhaps the observation of the international community. And in the case of
Puerto Rico, for us, the same process. But when we determine what do we want, there are two ways to go about it.
One way is to have some people say we want this formula, this position. They take this position on an emotional
basis. They want, let's suppose, independence or statehood, and then they start like attorneys do--finding cases in
point to justify their position. That is fundamentally an irrational and emotional position. I respect those who take
that approach, but that's not my approach. My approach is the other approach. What are the goals? What do we want
for our people? Then let's see what is the best possible mechanism for our people to accomplish those goals. But
only we know what do we want. To enter into the discussion of labels is fundamentally emotional and a waste of
time. I think the first thing to do is to determine, in the case of Puerto Rico, what does Puerto Rico want? In the case
of the Virgin Islands, what do you want? And of course to ask the United States, what do you want from us? What
type of relationship do you want with us also? Because these are two parties. I don't think that the Virgin Islands can
force the United States to give the Virgin Islands independence. I don't think you can force them to give you
statehood. You cannot force them to give you commonwealth. You cannot force them to give you free association.
You can convince them. You can negotiate with them. That is the option--the only possible option. Of course, you
can get some international support if you want to, if it's necessary. But first try to make it without having it necessary.
The US knows that's an option that some people take. A second matter that I want to point out in particular is the
legal jargon. I'm also an attorney, and I was a professor of law in 1970--of international law and of constitutional law.
All laws are created by politicians-- municipal laws and international laws. Ambassadors at the United Nations are
politicians. They are representatives of countries and they take positions, and they create resolutions at the UN,
basically on political grounds. International law is the creature of international politics, and national law is the
creature of national politics, so law is not a fetishism. Law is a creature of social realities and political realities. And
we have to tailor laws to the needs and to the goals that we want for our people. That has to be stressed very clearly.
I'm going to read you something first, a very small paragraph. It says: "It has been frequently remarked that it
seems to have been reserved to the people of this country, by their conduct and example, to decide the important
question whether societies of men are really capable or not of establishing good government from reflection and
choice, or whether they are forever destined to depend for their political constitutions on accident and force". I am
reading from the most important political contribution that the United States has ever made to humanity, the
Federalist Papers, and this is the Federalist number one, Alexander Hamilton--the contribution of the United States to
American political theory. If we were imprisoned in old political and legal formulas, we would still be living in the
city-state of Greece. The first nation-state was created in the 16th century in England, because the political and
economic realities of England at that time made it possible and necessary to create the nation-state. That's why
Machiavelli wrote The Prince--to tell the Prince how he could create a nation-state. And that was in the 16th
century--only a few centuries ago if you consider the history of humanity. In 18th century, the United States faced a
problem. The typical nation- state was not relevant to their reality when they first tried, after becoming independent
from England, the Confederation. That didn't work out. After 11 years they met in 1787 in Philadelphia and they
established out a federal system. The first federal system in the world was created because of the needs of the United
States when they devised the Constitution in 1787. It worked for the United States because it was created according to
the needs of the United States. They were not imprisoned in the system established by Great Britain. It was
something that was made for them by them. And this is what we have to do. This is what we have to do in the 20th
century.
Now in the 19th century, European and American powers became empires. Africa was divided among the French,
the Belgians and Great Britain, etc. The United States invaded Puerto Rico and Cuba and the Philippines and Guam
and took them over from Spain. Because nations grow and expand; it's a normal process. In 1917 the United States
purchased the Virgin Islands from Denmark (who by the way, also have a free associated state, Greenland, which is
the largest island in the world). The reason why the United States purchased the Virgin Islands was not because they
wanted to have a duty-free shop here. They purchased the Virgin Islands for the same reason they took over Puerto
Rico, because of national security perceptions. In the case of the Virgin Islands, it was because of the First World
War; in the case of Puerto Rico, it was to prevent other European powers from entering into America and the need for
a strategic place in the Caribbean to protect the Panama Canal and other needs. Security and defense are what every
country, every major country, has in mind first; of course economic interests are second. One thing I want to call to
your attention when you consider what you are going to do, consider not only what you want but consider also what
the other side wants. Because if you ask for something that is impossible, you're going to be frustrated. You have to
start considering what is within the realm of possibilities. And you ought to consider, what are United States'
interests and what are the Virgin Islands' interests? It is like a labor negotiation. You might start with different
interests, but once you reach agreement, then you have a common interest. In the process of the negotiation, you have
to be clear that you have to represent the interests of the Virgin Islands in the same way that I am clear that I'm in
politics because I represent the interests of Puerto Rico--in a friendly fashion with the United States, which I consider
our ally and our friend. But take into consideration that there are some points that have to be negotiated in a friendly
way, looking for a solution, not for a confrontation. The US today has affiliated islands, as we are now called. There
are eight of us: in the Caribbean, there is Puerto Rico and the US Virgin Islands; in the Pacific, there is Guam, the
Northern Marianas, the Marshall Islands, the Federated States of Micronesia, Palau and American Samoa. I want you
to consider the following. After the Second World War, the United States was the owner of the world. They had
clear control of the economy of the world. Europe was completely destroyed. Japan was completely destroyed. The
United States had global hegemony. Today, the US is still the strongest country in the world, both financially and
military, but today the United States has a negative balance of payments. Number two, the United States has a
negative budget. They are spending more money every year than the money they are making. And number three, the
US has become the largest debtor in the world. Even if you have a strong economy, under these circumstances, you
have to start considering what you are going to do with your affiliated islands that are costing you money. In the case
of Puerto Rico, we are talking about $7 billion a year. In the case of the US Virgin Islands, we're talking about close
to $400 million in '84, but maybe it's more now. So I think that from the US point of view, they must also be
considering how to assist affiliated islands to become more self-sufficient. As a matter of fact there is a recent report
that came out of Congress--you should get a copy of it It's called "Integrated Renewable Resource Management for
US Insular Areas". It is a report of the Office of Technology Assessment, whose chairman is Morris Udall, who also
happens to be the chairman of the Interior Committee in the House of Representatives where your distinguished
delegate, Mr. De Lugo, sits as the chairman of the Sub-Committee on Insular and Territorial Affairs. After the Second
World War, many territories were in the hands of the powers. And when the United Nations Charter was established,
it was established clearly that the metropolitan powers had to give reports to the Secretary General on the conditions
of the territories. The concept of free association is a concept that was created during that process. There is a
resolution of the United Nations approved in 1952--that's Resolution 742--that for the first time outlines the principles
that free association must have in order to exist. In that same year, 1953, the UN approved a resolution authorizing
the United States to stop sending information on Puerto Rico because Puerto Rico became a self-sufficient country in
1952 according to Resolution 748. But the content of this concept, free association, has been changing. Some people
might argue that the relationship established by Puerto Rico in 1950-1952 called Estado Libre Associado (that's free
associated state, but translated into English as commonwealth) was determined at the time by the United Nations as
complying with the requirements of free association as free association was interpreted then. But the concept of free
association has changed, because it is fundamentally a new concept. It is the same way the concept of the Federal
system changed from 1789 to today. It's a concept that you have to put some meat into, and eventually go on shaping
and developing it. When somebody in this panel, I think Professor Leary, was saying that free association is perceived
by some people as a step in the process to independence, I was thinking that it is perceived by some countries in the
Caribbean, that independence is a step in the process to free association. In 1960, the UN approved two resolutions. I
have to deal with the legal situation for a brief moment, then we'll deal with the political situation. In 1960, the UN
approved two resolutions. Resolution 1514, which is called the Magna Carta of decolonization, basically says that all
countries that have not yet obtained independence are entitled to independence. It also approved Resolution 1541 that
established the criteria to remove from the list of territories those countries or those territories that are still on the list.
It was argued that the second resolution never applied to Puerto Rico, because at the time Resolution 1541 was
approved, Puerto Rico was not on the list of territories any longer; it was taken out of the list in 1953. But it did apply
to the Virgin Islands, because the Virgin Islands still is on the list. Then the United Nations created the Committee for
Decolonization, which is called the Committee Of 24, that exists as the Supreme Court of Resolution 1514, the
resolution that establishes the right of every country to achieve its independence and self-determination. That
committee, the committee that sits as the Supreme Court of Resolution 1514, issued a resolution on September 12,
1978--the day of the first anniversary of the death of Stephen Biko--that allowed free association to be a proper
decolonizing procedure or decolonizing status under 1514, if certain conditions are met. So, under that same
Resolution 1514 free association can be a proper decolonizing status. Free association has been interpreted as of
today to be a proper decolonizing status by the international community under 1541 and under 1514, any way you go.
In Puerto Rico we have a commonwealth. Of course the position of my party is that we support that commonwealth;
my party created the Commonwealth of Puerto Rico. And as of this moment, that's the formal position of the party.
We have dealt, on previous occasions, with the possibility of making some changes to commonwealth. During this
term, our government and our governor, whom I of course support a hundred per cent, said that we were not going to
introduce any changes or any proposals for changes, that we are going to deal with that in the future, but not during
this term. So that's the formal position of my party, and of course, I have to support that position completely. Now I
need to explain free association. Commonwealth and what's called now free association can both be interpreted as
free association, because basically what you have here to decide is between three options. One option is
independence. You part ways--as friends or as enemies--but you part ways. A second option is statehood. Then you
have the third option--association. The issue is, which type of association? From the understanding that I have of the
Virgin Islands, option 1 and option 2 are very distant as of today. Maybe I'm wrong, but that's for you to decide, not
for me to decide or to tell you. And I think that's the same case in Puerto Rico. So the issue is, which type of
association? Is it the best for the territory and. the United States? Then I have to point out again, what I mentioned,
that you have to determine the content of that association between you and the United States. Commonwealth, as it is
in Puerto Rico, is basically the result of a process that we created from 1950-1952, whereby we got, through Public
Law 600 of 1950 of Congress, authorization to approve our own constitution, which by the way is the only
constitution that we have ever written ourselves since Columbus came here, and was written by Puerto Ricans and was
approved in 1952. But the relationship between Puerto Rico and the United States remains controlled by what is
called the Federal Relations Law. The Federal Relations Law was approved by the people of Puerto Rico in a
plebiscite. As far as I'm concerned, on a personal basis, that Federal Relations Law has a problem, which is basically
Section 9. Section 9 of the Law says all laws, not locally inapplicable, shall apply to Puerto Rico in the same manner
as they apply to any other state. But the problem is that the entity that determines what is an applicable law is
Congress or the US Courts, not Puerto Rico. The difference between that type of association and the other type of
association that was developed recently, is that in the second type of association, all Federal laws cease to apply, only
what is in the compact can be enforced in terms of the relationship. If you have an open compact, you are giving
Congress the right to make amendments, and you are giving the Federal courts the right to make the interpretation.
There are two partners, but only one of the partners makes the interpretations and can make the amendments. This
new type of association prevents that. You might like the contract or you might not like the contract, but if it's not in
the contract, it's not delegated. I think that's very clear. You have to be very aware that the procedure that you are
going through, or that you're eventually going through, has to be considered as important as the substance. Because if
you have a plebiscite and you choose something, and what you choose you go with to Congress, and Congress says
no, what do you do next? Back to square one? On the contrary, if you have a plebiscite and then you determine, let
us say, a plebiscite for three options--independence, association or statehood--one of the three wins, then you can
establish a constitutional assembly that can give content to that association, and through a negotiating committee go
to Washington and start negotiating with the President or with Congress. I have learned a lot from my friend, Peter
Rosenblatt, and I hold him in high esteem, but there is an item where I disagree with him. In the case of Puerto Rico,
although we are all American citizens and want to remain being American citizens, we have negotiated with the
United States on three occasions, one successfully, two unsuccessfully (because I don't think the time was right).
Number one, from 1950-52. Then in 1965, a US-Puerto Rico Status Commission was created under Johnson and
Sanchez Vilella. And in 1973 an Ad Hoc Commission was created for the development of status and eventually this
Ad Hoc Committee, appointed by Governor Hernandez Colon and President Nixon, submitted a compact of free
association to the President, who at the time was Gerald Ford. He threw it in the wastebasket. The fact that they were
not successful does not mean that you can't negotiate. I think that you should not put any limitations. There are two
ways of thinking in life. Some people only do what is authorized to do, and some people refrain from doing what is
denied to do. The first road is the Franco- Pinochet-Castro road; don't take that road. Take the road of the Federalists.
Check out what is not permitted and be free in making your future because everything else is permitted and the future
is allowed. Thank you.
Atty. Bornn That has, indeed, been stirring and offers us a lot of possibilities and I hope we'll have an
opportunity in the discussions and the questions to explore a little further several of the other suggestions I know you
were ready to make to us. And now we have returned to the Virgin Islands via a Virgin Islander, Professor Marilyn
Krigger.
Professor Marilyn Krigger First of all, madam chairperson, if you have an award for time observance, I'd like
to claim it. I believe I am going to be the only panelist who will stick within the suggested time limit. Attorney
Bornn, fellow panelists, Dr. Richards, and fellow members of the University community, ladies and gentlemen, I am
very happy that this conference is being held and that I have the good fortune of being a part of it. This is the third
such conference to be hosted by this institution in the last twenty years and in common with a number of persons here,
I also attended the first two. I hope that this one will go beyond the academic experience. Hopefully it will be
followed by a progressively growing tide of public concern and information-disseminating activities and, if it is the
wish of the electorate, there will eventually be appropriate changes in areas of the Virgin Islands-United States
relationship where they are deemed to be needed.
Is free association the future direction for the Virgin Islands? The problem with discussing free association is that it
is so new and untried a status in the American political framework that it is not definitely known how it will work.
We are probably here today because, like Guam, we in the Virgin Islands have recognized the limitations of the
unincorporated territorial status for a society that has certain sociocultural differences from its parent society that it
may wish to retain. Commonwealth status, which at one time used to be defined in terms very similar to what is now
being said about free association, has proved to be a disappointment to many in Puerto Rico and elsewhere. However,
the free association of Micronesia with the United States, as of now, can only be judged by its written characteristics.
Time may prove it to be a disappointment. On the other hand, it might turn out to be a viable solution for at least one
underdeveloped society enmeshed in the typical dilemma of the need for economic security and assistance, but an
equally deep and unquenchable need to maintain its own social and cultural identity.
I am going to do what I think most voters will do in preparation for a status referendum in the Virgin Islands, which
I hope will be held in November of this year. A referendum is quite feasible in eight months time because the
educational process may be somewhat simpler than is often conceived. Seven status options are often cited and it
would seem almost next to impossible between now and November for the average person to become acquainted with
the pros and cons, the outright provisions and subtle implications of seven choices. However, most persons will not
really be minutely considering all seven choices even though at an academic gathering of this nature, we must, and all
official literature will have to. But, based on past opinion polls and general knowledge, the majority of voters will not
spend too much time considering independence, for example. The same statement, though to a lesser degree, can
probably be made for statehood. And once it becomes common knowledge that an incorporated territory is pretty
much a step towards statehood, that also will likewise be relegated by many to a category that will not receive a great
deal of attention.
Then, of the few options that the average voter will probably give truly serious consideration, there will probably be
just a few most significant aspects of each status that will be used to judge whether, on balance, it can be deemed
beneficial or disadvantageous to what each voter considers the best long-term interest of these islands and himself.
In keeping with that premise, and because of the time restrictions we have, we need to look at only the four most
eminent features of the proposed free association status for the Virgin Islands to decide if it might be the best future
direction for these islands. The first and most important of these features is that free association, as has been said by
other panelists, is as close to complete self-government as a people can achieve without being independent.
Under free association, a people govern and control themselves totally, except for one or two areas which are
mutually agreed upon as the domain of the larger power. The two areas are usually defense and/or foreign affairs. In
the case of Micronesia, it is defense alone. In the case of the Virgin Islands, it would be both defense and foreign
affairs.
Secondly, in return for its authority over such vital areas, the larger power usually agrees to provide a substantial
level of economic support. The proposed free association bill for the Virgin Islands calls for the continuation of
Federal grants and welfare programs. Thus the Virgin Islands would not only have self-control and self-direction, but
also a guarantee of economic well-being. These two provisions would be easily agreeable to many Virgin Islanders I
know.
However, the third one is the one that would cause, for many, deep soul-searching or immediate horizontal shaking
of the head. The proposed free association status does not include United States citizenship. Residents of the Virgin
Islands would have to choose either Virgin Islands or United States allegiance.
The fourth provision, which serves to mitigate the third, is that persons who choose Virgin Islands citizenship
would be allowed the rights of traveling to the United States and also the freedom of working there.
Now, based on these four main characteristics of Free Association, is it the future direction of the Virgin Islands?
My realistic answer is No, based simply on the presumption that most residents of the Virgin Islands who are
United States citizens would not, fortunately or unfortunately, want to surrender that precious political affiliation. As
Dr. Leary explained that was not a big factor in Micronesia, as Micronesians had never been citizens of the United
States.
Here in the Virgin Islands we have a sizable number of persons who have moved here from the United States
mainland; giving up the citizenship of the place of their birth would probably be unthinkable to most of them. For
many of the United States citizens who were born here in the Virgin Islands, there is no lesser degree of attachment to
United States nationality and all it stands for. Lastly, though not least, a substantial portion of the local population is
comprised of persons who have become naturalized United States citizens since moving here from elsewhere. These
persons would probably no more choose than the others to part with their new political label, obtained in many cases
through the pain of leaving behind esteemed homelands and treasured families and friends.
That single factor of citizenship, therefore, negates free association as a realistic status option for the Virgin Islands.
Its overwhelming importance, regardless of the other desirable components of free association, is such that it brings to
mind the well-known comment of Trinidad's Dr. Eric Williams when he heard of the defection of Jamaica from the
ten-member West Indies Federation. He reasoned that in certain situations, any number of factors minus one leave
naught.
However, instead of simply dismissing free association outright, there are lessons that we in the Virgin Islands can
learn from that status's conceptualization and means of implementation. It is based first and foremost on the
realization that for a people, especially the people of a small society, to protect their heritage and chart their
development as they wish, they must insist on and assert the political tools that allow them to do so. Accordingly,
whichever of the other status options is chosen, and I personally favor an astutely negotiated compact regardless of the
name by which the outcome is called, it must contain appropriate provisions to meet the crying needs of these islands
for the protection of our sociocultural heritage and the quality of life. It will need to include certain allowances that
have not heretofore been characteristic of the American political system, such as restrictions on land alienation and on
immigration, even across American borders. Secondly, the Free Association status shows recognition of a principle
that it would be well for many of us in the Virgin Islands to remember: that one often has to forego certain things in
order to keep or gain other things. I refer, for one example, to the stated desires of some to push for Virgin Islands
participation in the regular presidential and congressional voting processes. However, the great need in our society is
not for an imitation of every political act of the residents of the fifty states; our need is to find special means of
safeguarding the special character of our society.
The problem is that many of us, from hearing it said quite often, have been taught to think that we are inferior
American citizens without the national vote, but on a practical level, it would not make any real difference to Virgin
Islands' life. Instead the constitutional amendment it would require appears to be politically extremely improbable
and would take long and probably vain efforts that would better be directed to bringing about truly meaningful
changes.
Let's think about it earnestly and seriously. Are the laments we are hearing about certain deplorable conditions in
the Virgin Islands related to the presidential vote? Are a growing number of people fearful about our future because
we lack that vote? Is the runaway development of these islands due to our non-participation in national elections?
The push for regular participation in national elections, though honestly desired by some, is a diversionary activity
that takes us in the opposite direction from the claims for a special status that we need to make for the Virgin Islands,
for these islands are special, and the sooner we arrive at a status relationship that appreciates and addresses that, the
more of the specialness we will be able to retain and preserve. Thank you.
Atty. Bornn No comment is needed. You've given the necessary comment. Fantastic. Right to the point
analysis I'd say. I'd like to award to you that prize you claimed, Professor Krigger. And that prize is you get the first
opportunity, if necessary a second, to ask a question of any of your panelists. Gentlemen, beware.
Professor Krigger I would like to ask--I think it was Professor Rigau who said it, I'm not sure. He mentioned
that there would need to be a constitutional amendment for a special compact. I am wondering why, because
according to the Constitution, the Congress has power to legislate pretty completely for territories. In fact this
morning, I think Professor Leibowitz mentioned the great arrogance of Congress in saying that in regard to the
territories they have the power to make invalid laws valid and valid laws invalid. If this is the case, why could they
not legislate what is needed without a constitutional amendment?
Ambassador Rosenblatt My reference to the need for a constitutional amendment relates to a number of things
that you said towards the end of your comments. If there is to be a relationship of genuine and complete equality
between the US citizens resident in what is now a US territory, and those resident in the fifty states, there must be a
provision for equality of vote, which does not now exist. That can only be achieved by an amendment to the
Constitution, an amendment which can take many different forms. But I also want to say that the long-term need for
such an amendment, should not be permitted to obstruct the shorter term need for a change in the functional
relationship between the United States and the territory. One can have a two-level approach. One would be a change,
call it what you will--a compact, a covenant, commonwealth status, free association--within the ambit of what
Congress is permitted to legislate under the Constitution. At the same time, on the second level, it would be possible
to work towards the establishment of a new political status for small insular territories too small under present
concepts to be considered for full statehood, which would involve a grant of full voting equality with the states.
Atty. Rigau I want to point out something if you will allow me. In 1980, the Supreme Court of the United
States, in the case of Harris v. Santiago said that Congress can enact legislation for Puerto Rico, as Congress may
deem it proper through the territorial clause, even though Puerto Rico became a commonwealth in 1952. If you don't
have a constitutional amendment, and if you don't have a provision in the compact that says explicitly that all federal
laws cease to apply, any compact that you enter into can be overridden by a law of Congress--any compact. Even if
the compact says that Congress cannot change it unilaterally, there's a legal issue that one Congress cannot bind the
other one. So unless all federal laws cease to apply, and the US disposes of the territory according to the Territorial
Clause, you have that problem. Now, as to the issue of citizenship that the Professor mentioned before, with all
respect, I don't think that any formula of free association is predestined, predetermined. It's not manufactured in any
specific way. You can have a free association with US citizenship. You can have a free association with US and
Virgin Islands citizenship. You can have a free association without US citizenship. You can have a free association
in any fashion that the United States and yourself are willing to negotiate. There are no predetermined limits. It's a
matter of negotiation and being abli to carry it through. The possibility of a dual citizenship exists. As a matter of
fact, the people who were American citizens in the Marshall Islands and in the Federated States of Micronesia are still
US citizens, and they have both citizenships and both passports. And that situation exists with many other countries.
I know people who carry three, four passports.
Atty. Bornn Attorney Rigau, would it be difficult to make an arrangement whereby a compact is treated as a
treaty and actually approved as such? Would that make it, if agreed to as such, would that keep it from being
unilaterally amended by the US government?
A'Ay. Rigau Legally speaking, the issue is that the United States Constitution provides, through the Territorial
Cause, the capacity to Congress to enact legislation for the territories. And what the Supreme Court has determined
i. that they can legislate anything that is "reasonable". So the criteria is if the Court finds it to be reasonable then it's
c institutional. If the Court finds it to be unreasonable, it isn't constitutional. But in any case, it is the Supreme Court
c the United States that is the last arbiter. Only if you have in the compact, a provision that all federal laws cease to
apply except those included in the compact, you will have that situation. If federal law cease to apply, then Congress
cannot any longer enact any legislation that applies in the territory and any amendment to the compact has to be both
ways.
Atty. Bornn So it can be done, but we have a second opinion coming up. Attorney Rosenblatt.
Ambassador Rosenblatt I want to point out one of the interesting little anomalies that the Micronesians and the
US negotiators agreed to in negotiating the compact of free association. There were several instances in which we
agreed to disagree so that we could each more easily live with the result. The Micronesians regard the compact of free
association as a treaty. We do not regard it as a treaty because we took the position that we couldn't negotiate a treaty
with other than a sovereign. So it doesn't really matter. We decided that it doesn't matter, and they could call it what
they wanted, and we call it what we want.
Atty. Bornn Professor Krigger, are you going to exercise your right for a second question or do you pass?
(Krigger: I'll pass.) Professor Leary, what would you like to have these gentlemen address?
Prof. Leary This is a little bit tongue-in-cheek and is directed to my friend, Roger Clark. I read recently in the
Washington Pacific Report that New Zealand has exchanged ambassadors with the Marshall Islands and the Federated
States of Micronesia, and I was wondering if his own government was undercutting his position with respect to the
international acceptability of these entities.
Professor Clark I'm happy to say I don't speak for the New Zealand government, but I can however inform you
that they were misquoted in the Washington Pacific Report. The Washington Pacific Report stated that New Zealand
was exchanging ambassadors with those entities. That is not true. New Zealand, like Australia, has gone to
considerable pains to exchange what they describe as a representative, a new Zealand representative. And they did
that because of their position as to the anomalous status of the two entities. They deliberately made the decision not to
call the person ambassador. And New Zealand has always been flexible about having relationships with unusual
entities, and this is I think an example of its flexibility, but it is not an exchange of diplomatic representation in the
sense in which the Washington Pacific Report reported it.
Dr. Leary You can't always believe what you read in the papers.
Prof. Clark I don't mean to knock the Washington Pacific Report which is, by and large, a very reliable
enterprise. Now and again they get it wrong. And as a matter of fact, I put a call through to the New Zealand
Embassy when I read it because I threw a fit. I didn't think they were going to do that, and it is true that they did not
do that.
Dr. Leary One more question to my colleague and friend, Dr. Marilyn Krigger. You emphasized, I think quite
rightly, the attachment Virgin Islanders have to US citizenship, but you also indicated that you wanted certain
flexibility with respect to the Constitution in the area of land alienation, and immigration, including control over the
US citizen immigration. I was wondering can you reconcile common citizenship under a common constitution with
exceptions that will allow you to exclude fellow US citizens and prevent them from purchasing land? Is a
contradiction there?
Dr. Krigger I think the size of the Islands mandates that the point will arrive where we have to do it simply
based on the necessity for guaranteeing a certain quality of life. I mean right now we are one of the most densely
populated places under the American flag. Of the fifty states, for example, we have a greater population per acre, per
square mile, whatever, than 48 of the 50 states. We're one of the most densely populated places in the entire world.
And I think even regardless of the citizenship issue, the time is arriving when simply in order to maintain the quality
of life for everyone who lives here, we are going to have to impose restrictions.
Atty. Bornn There's got to be an alternative. A treaty is being developed to dredge and fill beyond our borders!
Indeed. Ambassador Rosenblatt.
Ambassador Rosenblatt May I add, that this is indeed the situation in American Samoa and in the CNMI.
There are restrictions on land alienation towards non-Samoans and non- Marianans.
Atty. Bornn And where does that arrangement get its legality? In any of the compacts or covenants? Or is it
prior law?
Ambassador Rosenblatt In the case of the Northern Marianas, it's incorporated in the commonwealth covenant
Where it is in the case of the American Samoa; I believe it is in the instrument under which they came under the
American flag.
Atty. Bornn Do you know whether or not these provisions existed before the development of the arrangement
with the United States government?
Ambassador Rosenblatt It certainly did in the case of the Samoans. That is the reason why most American
Samoans are not American citizens. They're American "nationals", which has no practical consequence as far as
travel is concerned, but "nationality" was extended to them precisely because of the difficulty encountered in
extending citizenship to them because of the land alienation problem. But for reasons with which I'm not familiar,
because I didn't negotiate that, the special land provisions of the NMI Covenant were not deemed an obstacle to the
granting of citizenship to the people of the Northern Marianas.
Atty. Bornn That's an important point for us to note because that has been said to be one of the things that
might very well be an obstacle because it's a favorite consideration here of many residents. Yes, Professor Leary.
Prof. Leary I'd just like to comment that I think the fact that the American Samoans have decided not to
become US citizens and remain nationals is precisely because of their concern that constitutional applications might
imperil their control over their land and immigration, so since they're not US citizens, I don't really think that's an
appropriate example with all due respect. But at the same time, even the Northern Marianas covenant, I don't think
that there's been a final, legal determination as to whether certain provisions of the US Constitution would override
these provisions of the covenant. Certainly what this whole status issue does is create wonderful employment
opportunities for lawyers. Unfortunately political scientists can't share in them, but I don't think that the issue has
been finally resolved yet as to whether or not you can have a compact that can first promise citizenship, yet seems to
be in conflict with things like the equal protection clause of the 14th Amendment. I'm not a lawyer, and I don't want
to trespass on any ground here, but I think it's still an open question.
Atty. Bornn Is it not also a question with respect to the special status being requested for the Chamorros in
Guam? That's also one of the issues.
Professor Clark It's an equal protection/due process problem, no question.
Atty. Bornn Would we be beneficiaries of decisions made on interpretations of either the Guamanian situation
or the one of the Northern Marianas? Anybody can answer that?
Professor Clark I can answer it on both cases. The question has not been finally resolved so we don't know
what the answer is.
Atty. Bornn So we ought to be looking very carefully at that to know how it might apply to any developments
here.
Atty. Rigau The only thing that I can say about this is that I know of no legal issue that, using a good head, you
cannot find a solution.
Atty. Bornn That's what we always say, we lawyers.
Ambassador Rosenblatt May I have one moment to make a few comments on Professor Clark's statement?
He used some pretty strong language in describing the compact of free association with Micronesia which I must say,
as a point of personal privilege, I take exception to. I'm not prepared to concede that I was personally involved in
imposing slavery and prostitution on Micronesia, nor do I believe that there is any occasion to say so. I think that
what we have here--and I have encountered Professor Clark in numerous hearings before the Trusteeship Council
where he said similar things in the past--I think what we have here is a situation where an outsider is making
prescriptions for what is best for the people who are themselves involved in the process of negotiation. The
Micronesians knew exactly what they were doing. They were very well advised by high-priced Washington law
firms. They are sensible, intelligent, and educated people themselves, and while the process may have been over-
lawyered, which I readily concede, I think there are certain advantages to that in terms of the participants
understanding what they're getting into.
Now the question of fine print, which Professor Clark referred to, is, I think, completely misunderstood and
mistaken. There is no question of fine print here. Let us take, as an example, the comments that he made about the
United States withholding full foreign policy rights. The fact is that in the history of these negotiations, the
Micronesians did not ask for foreign policy authority. It was a decision by the United States itself, in which I played a
prominent personal role, that we should offer it to them even though they didn't ask for it, but subject to certain
conditions which would buttress what we were interested in, that is, our defense rights. And it was on this basis that it
was accepted, though not asked for.
I could say similar things about various of the other comments that Professor Clark made, but I appreciate, Mrs.
Bornn, the opportunity to have a right of reply. Thank you.
Atty. Bornn Thank you very much.
Professor Clark May I say a few things? One is I asked you to read my paper where the argument is made in
somewhat more detail. At least pay me the courtesy of addressing the argument I actually made.
The second thing is this--and it relates to Mr. Rigau's comment in large part. I must take issue with Mr. Rigau
about Denmark and Greenland. Greenland was not sold to the United Nations as a case of free association. It was
sold, wrongly in my view, as a case of integration. It was swept under the colonial carpet at the same time as Puerto
Rico was being swept under the colonial carpet.
Putting that matter aside, Mr. Rigau is absolutely right about Chapter 11 of United Nations Charter and it's a matter
which Mr. Rosenblatt misses in his analysis--that the United States when it became a party to the United Nations
Charter, became a party to that part of the Charter which deals with the declaration concerning non-self-governing
territories. The Virgin Islands, Guam, and American Samoa are regarded by the United Nations and also by the
United States, as non-self- governing territories as the term is used under the United Nations Charter. Now it's true
that the United Nations Charter, Chapters 12 and 13, has a special set-up for trust territories. But there are also the
Chapter 11 provisions, as Mr. Rigau explained, for non-self governing territories. I contend very strongly that there
are some rights under international law that emerged from that part of the Charter, and I must say that I am offended
that they get ignored so often in this kind of discussion. The people of the Virgin Islands have rights under the U.N.
Charter. Thank you, madam chair.
Atty. Bornn Thank you, but I think you made a very worthwhile point in stressing the difference in United
Nations treatment of non-self governing territories as differentiated from trust territories. Mr. Rigau.
Atty. Rigau Not only Greenland but also the Faroe Islands have free associated relationships with Denmark.
That's number one. I just came from Denmark a few months ago. Number two. My father was an attorney, I am an
attorney. My uncle was an attorney, my brother-in-law is an attorney I have seen so many attorneys in my life
saying how things cannot be done. I always try to think how it can be done, how to use the legal system to allow it to
be done.
Panel III: of THE
The
'1962
STATEHOOD
Status
Panelists:
William Boyer, University of Delaware. "From Territory to State: The Historical Record, the Constitution, and
Unincorporated Territories Today"
Johnny Barnes, Assistant to Congressman Fauntroy of the District of Columbia. "The District of Columbia
Statehood Movement"
Luis R. Davila-Colon, Attorney and Author. "The Statehood Movement in Puerto Rico"
Fred Vialet, Jr., Attorney, U.S. Virgin Islands. "The Virgin Islands as a State of the Union"
Moderator: Laverne Ragster, University of the Virgin Islands
Dr. Ragster Good morning. I'd like to welcome you to the Third Panel and the continuation of our discussion
on the Future Political Status of the US Virgin Islands. This particular panel will be discussing the issues associated
with the option of statehood. Yesterday there were so many statements made essentially negating this particular
option or making negative comments about it. I was thinking this morning that it's a good thing this is an educational
conference, and that we still should be here, since this was not a decision-making activity. Please continue to keep in
mind that this is a conference meant to give us information about all the different options. One of the things we want
to remember is that we should be looking at the options as having benefits as well as costs associated with them. Our
panelists today are more than qualified to present us with the history and the development of statehood in other areas
as well as the kinds of problems and the benefits that are associated with this particular option. At this time I would
like to introduce to you our distinguished panel, in addition to reminding them and you that the format for today is
similar to yesterday with similar time constraints--fifteen minutes for presentations so that we can have enough time
for short interchange among the panelists and then debate or discussion from the floor. I will introduce the panelists
as they are seated and will present their discussions. At least one has said that he will come to the podium and there's
no problem with that. The first panelist is not a stranger to the Virgin Islands Dr. William Boyer holds an endowed
chair professorship in political science at the University of Delaware. His speciality is in Third World development.
His research and writing about the Virgin Islands dates back forty years, and as I said, he is no stranger to this area.
He has authored two books and several articles on the history of the US Virgin Islands and was visiting distinguished
professor here at UVI 1982. He is a member of the Caribbean Studies Association and the Association of Caribbean
Historians. We say welcome to Dr. Boyer. Johnny Barnes is an attorney and part-time law professor. He currently
serves as Chief of Staff for Congressman Fauntroy of the District of Columbia. Mr. Barnes drafted and serves with
Congressman Fauntroy as the chief architect of HR51, the DC Statehood Bill, which will come to a vote in United
States House of Representatives in April of this year. I'm sure most of you are aware of this issue. In 1978, Mr.
Barnes drafted and helped Congressman Fauntroy steer through the Congress, the DC Voting Rights Amendment.
That proposed amendment to the US Constitution passed by a two-thirds vote in both the US House and the Senate.
And at that time, had it been ratified by three-fourths of the states, it would have provided for Washington, DC,
representation in the Congress equal to that of the fifty states. Unfortunately, that amendment died when the seven-
year ratification period passed. Mr. Barnes has written many articles on the issue of statehood and he is definitely
welcome on this panel today. Mr. Barnes, good morning. Our third panelist is Attorney Luis Davila-Colon who will
speak to us on Constitutional, Legal and Political Aspects of Statehood Alternatives. He is replacing Juan Garcia-
Passalacqua who is not able to come because of a serious illness in his family. Attorney Davila is a native of Puerto
Rico. He is a graduate of the University of Puerto Rico's School of Law, an honor graduate. And he has served as
legal counsel to the Office of Federal Affairs of the Government of Puerto Rico. He was legal counsel to the Chief of
Staff at the Governor's Office. He was involved with the Environmental Quality Board before starting his own law
offices in 1983. He is an author and editor, and his books include one on the statehood option. His resume includes
many awards for service to Puerto Rico--he is clearly a good citizen and also welcome on this panel. Our final
panelist is a native son, and he wants me to tell you that he too is a product of the Virgin Islands public education
system, and I say so because so am I. Attorney Fred Vialet, Jr. has been a legal advisor to the National Committee of
the Republican Party since 1981. He also served as a legal advisor to the Virgin Islands Territorial Committee of the
Republican Party since 1980. He's currently the Real Estate Commissioner of the Government of the Virgin Islands
and he serves as the Assistant Director of Ceremonies of the Harmonic Lodge #356 of the Grand Lodge of England.
He has served as District Representative of the American Numismatic Association, and also, I am pleased to say, he
has been an adjunct professor at UVI in political science. Good morning Attorney Vialet and welcome. Since we
want to make sure we get started with what we're here to do, I ask Professor Boyer to begin and again I remind all the
panelists of the time constraints please.
Professor Boyer Thank you, Professor Ragster. Governor Paiewonsky, President Richards, Senator Berry,
fellow panelists, ladies and gentlemen, good morning. I am very pleased to have been invited to this conference. I've
been asked to speak briefly on the historical background of US Territorial Policy and how generally unincorporated
territories relate to this background. I might say that this is a story that's been told many times before in articles and
books. Arnold Leibowitz yesterday morning, if you recall, mentioned briefly the background on the territorial
experience beginning with the Northwest Ordinance of 1787 as the policy that territories were supposed to become
states and how that radically changed in 1900 when we acquired extra-continental territories. So I will elaborate,
more or less, some of the things he said and perhaps too on what Marco Rigau said yesterday. Colonialism may be
defined as the economic and political exploitation of a subjugated people for the benefit of a ruling power, and this
time-honored doctrine that territories were inferior socially, economically, and politically to the mother country was
definitely repudiated by the Declaration of Independence and the Northwest Ordinance of 1787. The Declaration of
Independence not only, of course, opened with this well-known language that all men are created equal and so forth,
but it went on to say in one portion that the reason why these colonies, which are now new states, were uniting was to
assume (and I'm quoting from the Declaration) among the powers of the earth, a separate and equal station to which
the laws of nature and nature's God entitled them. The Northwest Ordinance was adopted on July 13, 1787, some
eleven years after the Declaration and one would expect that these former colonies, in terms of territorial expansion,
would not themselves repeat the anguished experience that they had under the British by creating colonies themselves,
and they did not do so. They did not create colonies. The Northwest Ordinance was adopted for the express purpose
of preparing territories for eventual admission into the Union "on an equal footing with the original states". In six
articles of compacts between the United States and the people of the territory, the Continental Congress extended to
the inhabitants of the territory complete self-government and all the civil rights that were to be adopted in the
Constitution--the Bill of Rights a little bit later. Thus was established this principle of equality that territories were
merely extensions of the nation and entitled not as a privilege, but as a right, to all the benefits of equality that the
states had and the people of those states had, in the field of civil rights especially. And this ordinance became
regarded as one of the most important documents in American history; the most important organic act that had ever
been passed by the United States government. It became a model for all subsequent legislation for other territories for
the next ensuing century. Not only did the Northwest Ordinance survive the adoption of the Constitution and the Bill
of Rights, but its principle of territory equality with the states served as the basis for territorial policy of the United
States. Now in the Constitution--reference was made yesterday to this provision--in Article 4, Section 3, Clause 2 the
Constitution did give Congress the exclusive power to admit new states and to make all needful rules and regulations
with respect to territories. But Congress interpreted this clause in a manner--and it chose to do this--throughout the
period of Constitutional expansion, to follow the example of the Northwest Ordinance, which was tantamount to
raising the principle of equality in the Northwest Ordinance to becoming part of the supreme law of the land itself.
And accordingly, therefore, as Congress acquired territory, this principle was institutionalized in the American
political system. In 1790, when we acquired the Southwest Territory, Congress provided that this territory should
have a form of government in all respects similar to the Northwest Ordinance. The Louisiana Treaty of 1803 stated
that the inhabitants of the ceded territory shall be incorporated in the Union of the United States and admitted as soon
as possible. Almost identical language in the Florida Treaty of 1819 was used. In 1848, upon acquiring the Mexican
territory, President Polk instructed his Secretary of State, who in turn instructed the Postmaster in California, that "the
Constitution of the United States, the safeguard of all of our civil rights, was extended over California the 30th of
May, 1848, the day in which our late treaty with Mexico was finally consummated. And from that day its inhabitants
became entitled to all the blessings of the best form of civil government ever established among men." So this policy
was followed of extending the Constitution to Alaska in 1867; to Hawaii on July 7, 1898. The Organic Act with
regard to Hawaii, recognized the Hawaiian Islands as a fully organized territory of the United States to which all
provisions of the Constitution and laws of the United States were extended, with some special exceptions, and to the
inhabitants on whom citizenship of the United States was conferred. So the United States government was consistent
in its policy as it acquired continental territories during this first century of American expansion. It established the
principle that the territories were infant states to be admitted into the Union as soon as conditions warranted. So
Congress generally extended local self-government, guarantees of basic rights of the Constitution, the right to elect a
non-voting delegate to Congress and so forth. So territorial status was considered merely a bridge between the
acquisition of the territory and incorporation into the Union as co-equal states. Now there were variations in these
documents that appeared according to variations of the conditions among the territories, but the central pattern
remained unchanged during this century of continental expansion. Indeed it appeared that the Constitution was
intended to follow the flag and this then was our established policy. But then came the Spanish-American War and
the acquisition of extra-continental territories, and the issue turned to the Supreme Court of the United States, which
had decided in 1857 that the United States had no constitutional power to acquire territory except with the Consti-
tution in full effect and with the purpose of admission of the territory to statehood as soon as conditions warrant
admission. And having reviewed Supreme Court decisions made prior to the Spanish-American War, Professor
Willoughby concluded that from the first the doctrine was held by the Court, that Congress in legislating on the civil
rights of the inhabitants of the territories was governed by all those expressed and implied limitations which rest upon
it in dealing with the same subjects within the states. Now the Supreme Court, without acknowledging it, abandoned
this century-old doctrine of equality in a series of decisions regarding these insular possessions acquired by the US as
a result of the Spanish-American War. Specifically, the question of the status of civil rights of the inhabitants of
Puerto Rico and the Philippines was related to the larger question whether the Constitution of its own force followed
the flag, or in other words, the question of the status of the new possessions. And these cases in the first part of this
century, beginning in 1901, were known collectively as the Insular Cases. And the Supreme Court held in these cases
that the Constitution did not follow the flag to these extra continental territories. We cannot elaborate here on the
judicial exegeses and the torturous reasoning of the Supreme Court, how they arrived at this remarkable,
unprecedented conclusion. It decided that Puerto Rico and the Philippines belong to, but were not part of, the United
States within the provisions of the Constitution and specifically within the revenue clauses, the uniformity clause, and
trial-by-jury provisions of the Constitution. Now in the first decision which was a badly split court, 5-4 decision, a
concurring opinion written by Justice White was the most important opinion, because this opinion set forth a new
theory known as the Doctrine of Incorporation that ultimately was to become the doctrine of the Court with respect to
the constitutional status of these territories acquired by the United States from Spain. Briefly stated, this doctrine
proclaimed that these territories had not been incorporated into the Union and that therefore the Constitution had not
followed the flag. I wish I could clarify what the Doctrine of Incorporation actually meant in the minds of these
judges, but I can't And I don't think anybody else can either. It may have been, although by no means is it clear, that
the Justices felt that incorporation implied ultimate statehood--a promise of ultimate statehood. But nowhere in the
Insular Cases did Justice White or his colleagues define the term incorporation. Justice Harlan, when he dissented in
his famous dissent, expressed grave doubts. He said "what is meant by such incorporation we are not fully informed
nor are we instructed as to the precise mode with which it is to be accomplished". And he added "that this idea of
incorporation has some occult meaning which my mind does not apprehend. It is enveloped in some mystery which I
am unable to unravel". So unfortunately for the clarity of Constitutional law, Justice White never explained what
constituted incorporation, despite his extraordinary effort to rewrite American history. You may have noted that
there's some confusion about all these status options. I think this is the reason because of the confusion, the
vagueness of the Court itself. Congress gained considerable power from the vagueness of these decisions and the
concept. And it's paradoxical, I think, that the principles of the Declaration of Independence and the Northwest
Ordinance of 1787, as well as the basic human rights of the Constitution of the United States, could be denied through
the application of such an obscure doctrine. Now, Mr. Leibowitz yesterday, in his very excellent and entertaining
presentation, suggested that the reason why there was this change in our policy is because the Filipinos were shooting
at the Americans. Well that was true, but most of the Filipinos weren't shooting at the Americans. I don't think that
that's the reason. Had the Filipinos not shot at the Americans, I think the same thing would have happened. The
judges would have decided the same--namely that there is a difference in these territories, therefore previous policies
should not continue, although they did not put it in those terms. I think that there's a different reason why they did not
extend the Constitution. Professor W. W. Willoughby stressed the character of the population of these territories as
having been the most important factor in influencing this doctrine. Frederick Coudert suggested that Justice White,
born on a Louisiana plantation and a former Confederate soldier, was concerned with racial questions and that
constitutional rights should not extend automatically to non-white populations in the new possessions. So I think that
the doctrine was rooted in bigotry and racism and that in itself should be enough to question perpetuation of so-called
unincorporated status. Unincorporated territories today what can I say about that? Well, over the years since the
Insular Cases, Congress has extended most Constitutional rights to the inhabitants of the insular territories, but the
facts remain that the Insular Cases have never been overruled, that the term incorporation remains obscure in its
meaning and has never been defined, and that the insular territories of the United States and their inhabitants do not
have equal status as the States and their citizens under the Constitution, and that Congress still retains the
Constitutional power "to dispose of and make all needful rules and regulations" with respect to these territories as
Congress alone determines. Thank you.
Dr. Ragster Thank you, Dr. Boyer. At this time we'll have Attorney Barnes speak to us about the District of
Columbia Statehood Movement. Thank you.
Attorney Barnes Thank you Dr. Ragster. To your distinguished Governor Paiewonsky who reflects a living
legacy that these islands have a rich tradition, to your President of this outstanding University (I know it's outstanding
because my wife attended here), Dr. Richards, to Senator Berry, apparently the driving force behind these status
considerations, and to all of you, I'm delighted to be here. Mine is more than a passing interest. As I said my wife
went to school here, grew up here, her family is still here, so I'm keeping my eyes out on what's happening as you
consider what your future will be. There are benefits and burdens associated with statehood. The burdens may
outweigh the benefits. That's a choice that you all have to make. I would like this morning to share with you the
District of Columbia's statehood experience from which you may be able to draw some parallels, make some
comparisons. I think you will find it unbelievable how many common threads run between those who are colonized in
the District of Columbia and those who are colonized elsewhere. It may be that I sound like an advocate rather than
an academic. Forgive me. Someone spoke of passion yesterday, and on this question, I have passion. I'd like to do
five things. One, provide a brief historical sketch of the creation of the District of Columbia so you can understand
how we got to where we are today. Two, discuss the reasons for statehood as we see them for the District of
Columbia through three or four dramatic examples. Three, discuss the issues associated with the statehood
question--constitutional and legal issues. Four, discuss the prospects for DC statehood. And five, at the risk of
intruding, share with you some of my views of the status options that you are considering. And I will do all of that
within the span of the fourteen minutes and fifteen seconds that I have remaining, Dr. Ragster. I once wrote that it in
seemingly minor incidents history often reveals forces which propel the occurrence of major events. One such
seemingly minor incident occurred in June of 1783 to the second Continental Congress, which was a seatless Congress
at that time--they met at various places as the exigencies of war demanded. Well they happened to be meeting in
Philadelphia, Pennsylvania on this certain day in June of 1783. A band of Pennsylvania militia men marched on the
Congress demanding their pay. Congress apparently didn't answer them satisfactorily. In other words, Congress
didn't pay them. And so the militia men surrounded the building in which Congress was meeting. And for two days
and two nights Congress was literally held in a state of siege. They called upon the state of Pennsylvania for help.
Pennsylvania was, of course, sympathetic with their constituents and chose not to provide the help and Congress had
to sneak out the back door under the cloak of darkness to avoid the siege. Now that seemingly minor incident capped
what was a very strong feeling in the hearts and minds of the Founding Fathers that if this new government was to
work, if this new experiment was to succeed, there had to be a seat of government outside of the boundaries of any
state and independent of the control of any state. And so Congress passed Article I, Section 8, Clause 17 of the
Constitution during its deliberation. That's the albatross for the District of Columbia, not unlike Article 4, Section 3,
Clause 2 is the albatross for the territories. That article, section, and clause says, in essence, that there shall be a seat
of government no more than ten miles square and Congress shall exercise exclusive legislative authority over that seat
of government. Once that was passed, a debate ensued as to where that seat of government would be located. The
North wanted it; the South wanted it. The war debt question was an issue. The slavery question was an issue. There
were sectional jealousies and rivalries. Well after a seven year debate, the first President, George Washington, was
commissioned to survey land which had been offered by Virginia and Maryland. Generous offers had come from all
of the colonies, but they chose the site on the river Potomac to locate the seat of government. And the original District
of Columbia was a perfect diamond shaped area exactly ten miles square. Remember I said Article 1, Section 8,
Clause 17 said it shall be no more than 10 miles square. Well the original District of Columbia was exactly 10 miles
square. That survey was done in 1790. Congress did not move to the District of Columbia until 1800, however,
because Pennsylvania was very disappointed that the land they had offered had not been chosen as the site for the seat
of government. And you read a lot about those great compromises in history. Today we call them deals. Well a great
deal was struck back in 1790 to allow Congress to reside in the state of Pennsylvania for a ten-year period as a
temporary seat of government and then to move to the District of Columbia in 1800. So from 1790 to 1800, although
the District of Columbia had been surveyed and selected as the site for the seat of government, Congress remained in
Philadelphia. Now some of us in the District of Columbia like to say we would have been happy if Congress had
stayed there because we didn't land on Plymouth Rock; Plymouth Rock landed on us. At any rate, Congress then
moved to the District of Columbia in 1800. In 1790 there were 3,500 people in the District of Columbia, a sparsely
populated wilderness that had been carved out of essentially virgin territory. By the time Congress moved there in
1800, there were 5,000 people. I give you that bicentennial minute to underscore that fact that from 1790 to 1800, the
people of the District of Columbia, those 5,000 residents, voted for the President of the United States, voted for Vice
President, voted for Senators and Representatives, and elected their own government. They were fully enfranchised.
When Congress moved to the District of Columbia in 1800 they found laws from the state of Virginia, laws from the
state of Maryland. There were three cities in that ten square mile area at that time--the city of Georgetown, the city of
Washington, and the city of Alexandria. There were local regulations and ordinances. What Congress found was that
the intent of Article 1, Section 8, Clause 17 in their view was being frustrated because they did not have exclusive
control over the seat of government. So one of the first acts of Congress when they moved to the District of Columbia
was to pass a law freezing all the laws from those two states, from those cities, and from those local ordinances and
regulations. Unfortunately, that included the election laws, and so the 5,000 people who had all the rights of every
other citizen--at that time stood on equal footing with all other Americans--became disenfranchised as a result of that
one act of Congress. They could no longer vote for the President of the United States, Vice President, Senators nor
Representatives, nor elect a local government. That act of Congress, according to Constance Green who has written a
two-volume definitive history on the District of Columbia for which she won a Pulitzer Prize, was not intentional. It
was an historical oversight--the press of creating a new government. Surely the founding fathers, who had fought so
hard and in such sacrifice and bloodshed to end the tyranny of taxation without representation, Green says, would not
have turned around and intentionally done that to a group of Americans themselves. But they did. And that status
continued for 161 years, even in the face of a burgeoning population in the District of Columbia which swelled to
800,000 people. It wasn't until 1961, when Congress passed the 23rd Amendment to the Constitution, that the people
of Washington, DC regained the right to vote for the President of the United States. And since 1961 we have slowly
and gradually began to recapture our full bundle of self-government rights. In 1968 we again gained the right to elect
our local school board. Prior to 1968, the school board in the District of Columbia was appointed by the President of
the United States. In 1971 Congress passed a non-voting delegate act giving the District of Columbia a voice in the
Congress, albeit a cloistered voice--no vote in the House and none in the Senate. In 1973 Congress passed the Home
Rule Act; some have referred to it as home fool. But essentially it provided to the District of Columbia a local elected
government--a mayor and 13-member council. Prior to that time, the local government of the District of Columbia
was appointed by the President of the United States. The President continues to appoint the Chief Law Enforcement
Officer for the District of Columbia and all the judges. Congress continues to have the final say over any law that is
passed in the District of Columbia. It must go to the Hill for a 30-legislative-day review period. That review period
often expands because the 30-legislative days means at least one house of Congress must be in session. That review
period often expands to 90 calendar days, sometimes 120 calendar days. And in a presidential election year like this
one, that review period can be as much as 220 days from the time that our government has done all that it can and
must do to pass a law before we actually know that it is a law. So it's a very difficult operation. The same is true of
the budget of the District of Columbia. Even though most of the money is locally generated--83% is locally
generated--Congress has the final word to an appropriation for that, and there's an 18-month period from budget
formulation until budget implementation--a year and a half after our government has decided what it wants to spend
until it can actually spend the money, because of the inherent delays in the process, because of Congressional
intervention. You all wouldn't run your personal finances like that and certainly a $3 billion corporation should notbe
expected to run its operation like that, but the District of Columbia does and must Let me now turn to some examples
of how this colonial status for the District of Columbia affects the people, how it's more than an academic question.
It's a bread and butter question. It's a life and death question. The Congress of the United States any day for any
reason or for no reason arbitrarily, capriciously, even on a whim, can decide to interfere and intervene in the lives of
the people of the District of Columbia and tell us how to live and tell us how to die. And they do. They will put aside
the great questions of our time like Central America, like the Middle East, like the economy, like tax questions, and
banter around such issues as whether a dog should wear leashes in the District of Columbia or whether a kite should
be flown on the Washington Monument. And those debates are in the Congressional record. I wanted to give you
several examples of what that really means to the people of the District of Columbia again so that you all can draw
parallels in terms of making final decisions on your options. We decided to construct a convention center--and if
you've been to the District of Columbia recently, you may have noticed it--a convention center to bring new revenues,
to create new jobs, to expand economic development. Whether you're for growth, no growth, limited growth, the fact
of the matter is that our local government, which functions like a state government even though it's called a mayor
and council, decided to construct this convention center. One Senator from a state half the size of the District of
Columbia, sat on the District's Convention Center Bill because he had the raw, naked power to do so, and for years we
were unable to construct the convention center so we lost millions of dollars and jobs that we could have had--millions
of economic development that has now been spurred by the construction of the convention center, millions in revenue
that is generated by those who now use the convention center--tourists who come in and people from surrounding
states. And that loss of millions was a loss to the people of the District of Columbia. Now to add insult to injury,
another Senator from the state of Maryland added a provision to our convention center bill that you cannot have
bleachers in the convention center. Now the speculation is that he did that because there is a Capital Center in nearby
Maryland which attracts concerts and basketball games and revenue that's generated. For example, Georgetown
University which is in the District of Columbia generates $20 million in TV revenues through its basketball team.
Georgetown University plays its basketball games in Maryland rather than in our convention center in the District of
Columbia because this Senator from Maryland made sure we couldn't play basketball games in our convention center.
And the shame of it is that not one federal dollar went into the construction of the convention center. That was all
money generated by the people of the District of Columbia, but this one Senator from a state half the size of the
population of the District of Columbia told us how to spend it. One other example, there is a bridge in the District of
Columbia, the Calver Street Bridge, that for some reason has a romantic attraction to those who want to surrender
their lives, and people jump off the bridge and they die. There was a debate in the local government as to whether to
construct a fence to deter that kind of action by people and finally a decision was made to construct that fence. But
that decision had to go to Congress and the money to be appropriated had to be decided by Congress and by the time
Congress did that, three more people jumped off the bridge. So it's more than an academic question; it's a life and
death issue this matter of statehood. Statehood, as we see it, cures all of those problems for us. There is an absence of
a presence for the District of Columbia in the Senate even though our population is larger than that of six states. We
pay more per capital in taxes than all states except one, the state of Alaska. We pay more in the aggregate to the
Federal Treasury than eleven states pay. We have all the burdens of citizenship. We fight and die in the wars. In the
Vietnam War, we had more casualties per capital than 47 states. On that black granite wall are etched the names of DC
residents who gave their lives in defense of the country whose precious rights they do not fully share. The right to
vote and fully participate is the most important of all other rights, the Supreme Court has said, because it is from that
right that all other rights spring. We have introduced and hope to pass in April in the House of Representatives HR51.
We want to make DC the 51st state in 1988. We have considerable support in the House; we expect it to pass and then
we'll go on to the Senate. We think we have the votes in the Senate; we're not sure if we have the votes to overcome
the Jesse Helms filibuster which is expected, but we do have the votes, we think, in the Senate. If it passes the Senate
then we'll see what the President wants to do, see what sort of legacy he wants to leave. He has a way of being
against something and signing the bill at the same time. He did that with the Martin Luther King Holiday Bill. And if
he doesn't, if he vetoes it, then we'll do a clean water bill in the next Congress, that is every Democratic presidential
candidate has indicated support for DC statehood. So the prospects are good. Your consideration of the options I
think should take into account the experience of the District of Columbia. Anything you do should ensure that any
law you pass gives you the final authority because the local elected government in the District of Columbia are mere
agents of Congress. Congress can take that authority away at any time; it's mere delegated authority, and that has a
certain chilling effect over how we make decisions. When Congress is constantly looking over our shoulders, our
judgments are not in the way that we would otherwise make them. I would ensure that you have control over your
judiciary and criminal justice system. We have a prosecutor in the District of Columbia who does not reflect the will
of the people in the desire to rid our community of drugs, for example. But instead--he's just resigned and that's
fortunate--goes off on projects of his own which do not reflect the sentiment of the community. I think it's very
important to control your judiciary and criminal justice system. One point that was made about congressional
representation yesterday is that it's not important. I think you ought to be careful about that because I have seen one
Senator provide millions, billions of dollars to an airport in his home state, Dulles airport, which has resulted in jobs
and more economic development. So you should be careful about this notion of congressional representation. I have
seen one Senator provide or shift a federal agency to his state resulting in the movement of 20,000 jobs. I've seen a
President move billions of dollars in public works projects to a state that supported him in the election. So I think you
ought to, whatever decision you make, think carefully about this notion of congressional representation. It can be
done in any number of ways, and I hope to be able to share those with you in the dialogue. Thank you very much.
Dr. Ragster Thank you very much, Atty. Barnes. I see him coming to the podium. Atty. Luis Davila will now
speak to us on constitutional, legal and political aspects of statehood alternatives. He has told me he has twenty pages
and he's going to do one a minute, and I'm keeping him to this.
Attorney Davila-Colon I have three biases. First of all, I am Hispanic, I am a Puerto Rican with mulatto blood
in my veins. Second, I am a citizen of Puerto Rico, which has been free associated, commonwealthed and compacted
to the ears with the United States for the last thirty years. And as such, I have seen 20% unemployment, I have seen
the social disintegration of my people, with this middle of the road formula. Which brings me to my third bias. I do
not believe in middle of the road formulas on status. I believe there are only two formulas which are legitimate for
decolonization--independence--total freedom--or total equality within statehood. With that I level.
In hearing yesterday's participants rule out completely the independence and statehood alternative, I thought the
organizers had suddenly eliminated two panels without telling me or today's panelists. I was surprised at first and
later on I said, really it's not surprising. I've heard this before back home. Anyway I thought to myself, if it's out of
the question, why even bother to discuss it today? But the mere fact that it's on the agenda and it's being discussed,
means that it's an alternative that you should consider seriously as well as independence.
When I looked at my notes last night in preparing this presentation, I saw the declarations that had been made
yesterday concerning statehood. I heard, and I quote, "statehood is not practicable to the Virgin Islands due to the
small population and lack of resources". And I heard once again that statehood was inconceivable for this territory
because of its size. Well, first of all, the people who said it were all White. And I'm not a racist, but it gives you a
different perspective, being from the mainland than from the Caribbean. Second, this is a flaw that is not unusual in
mainlanders. It is paternalistic. It is a patronizing attitude of the mainland White towards the people who live in the
Caribbean and Pacific colonies. It is basically standard operating procedure. Now I've never heard before, ever,
anybody complain about the size of Puerto Rico or the small size of the population of the Virgin Islands, first of all
when they invaded Puerto Rico in 1898 or when they bought the Virgin Islands in 1917. Never, ever anybody
complained then about the size. And nobody complains when they recruit your children and our children to war. And
still they tell you, that you're not good enough because of your size of population or your lack of resources. Nobody
complains about your size when our fellow citizens from the North come down to Puerto Rico and the Virgin Islands,
enjoy the benefits of the climate, and buy land. We're good enough for that, but yet, we're not good enough for equal
rights. Now it seems to me that this sounds like those old cries in the 1950s, against desegregation, against Black
rights. It sounds to me as those cries that say, stay in the back of the bus; don't make waves; you're separate, but
we'll make you equal.
It is absurd and it is patently unjust. It is patently unjust, basically, because I just can't see how you can reap the
benefits of a colonial situation and then just divest yourselves of all legitimate alternatives and foreclose those
alternatives, the only ones that will give you liberty or equality. They foreclose and still tell us they are going to
decolonizee". And this gives you a very, very, clear double standard and a contradiction. What type of self-
determination are we talking about, when statehood and independence, which are the two dignified alternatives, are
just totally ruled out? That's food for thought.
Let me tell you that the paper that I submitted today, is not the advancement of a formula. That is your choice and
I respect that choice as an outsider, although I live in a neighboring territory. I cannot interfere with that. I believe the
merits of the formula that you choose, should be considered by your citizens on the merits, with the drawbacks and
with all the benefits of each, after careful consideration of all the alternatives. However, I would recommend--and I'm
making this recommendation to Senator Berry and to the citizens of the Virgin Islands--before you embark on any
decision, you may want to send a visiting delegation to the places where you have commonwealth, where you have
free association, where you have compact, where you have independence, like the case of the Philippines, and where
you have statehood, so that you can do an on-field study of what the situation is there before you submit any decision
to your citizens. Do not jump into an abyss, where you don't know what's going to be at the bottom. Go, send a
legislative delegation and film whatever you do on tape, on cassette, and put it on your local public T.V. station, so
that everybody can see what's happening in those places.
There's another bias you should consider. Only those that have suffered and lived colonialism, can understand the
seriousness and the need to search for real solutions. I do not take no for an answer. If somebody tells me no, I ask
why, always. And again I say the decision is yours and it should be reviewed on the merits. I notice in you, a rush to
do these things. In Puerto Rico we have been discussing status for the last 150 years, so there's no rush. I'm not
telling you to take 150 years because it's something that needs immediate remedy, but take your time and consider all
the options.
Now having said that, let me go back to my paper which is based on two books that I coauthored and edited in
1984, which considered the statehood experience of the 50 states from the birth of the Republic up until the admission
of Hawaii. Taken from the past legal and constitutional experience, and I have to say legal and constitutional, because
political obstacles are another thing, I asked myself the question, Would the US Virgin Islands qualify for statehood in
legal and constitutional terms? Yes. Is there any obstacle to its admission? The answer, as an attorney, is a
resounding "No". There are no obstacles to your admission as a state of the union--legal and constitutional.
The constitutional requirements would be basically: (1) a majority vote in each house of Congress. Contrary to the
District of Columbia, at least the controversy that has happened with the District of Columbia, where some people
claim that you need a constitutional amendment. In our case, Puerto Rico and the Virgin Islands, it would be just a
simple majority, obviously with Presidential approval, and third, you would need a solid, not a mere, but a solid
majority of people favoring the statehood alternative in a fair, open and democratic process. That's basically it; those
are constitutional requirements.
There's no statute regulating the process of statehood, but traditionally, Congress has used three guidelines for
admission drafted by Thomas Jefferson which have been flexibly applied, and they have been used as a criteria for the
territories that have sought admission. Historically, the three guidelines have been: One, that a majority of the
eligible voters in the territory earnestly desire statehood. Of course, you would get that majority only after a plebiscite
or a referendum on the issue. Second, the territory must have a common democratic heritage and sharing of American
values of self-government and democracy. These you have, at least in your way of limited self government. And
third, that you have enough population and resources to sustain a state government.
Let's take the population issue and see what are the real merits to it. The interesting thing is that "not having
enough population", has been a subterfuge or an excuse used against the statehood process not only in the Virgin
Islands if you decide for it, but in most of the states. Most of the states faced this objection. There is no law that
establishes a minimum population. As yesterday Mr. Leibowitz stated, the basic minimum was established by the
Northwest Ordinance, which was 60,000 inhabitants and as he ably stated to you, Ohio went in with less than 60
thousand population. There's no constitutional section which requires a minimum population. Actually let's see the
facts. At the time of admission in 1959, Alaska had only 220,000 inhabitants and it was ranked last in population of
49 states. Hawaii had about 600,000 and it was ranked 46 of 50. New Mexico in 1912, had 327,000. So you're not
that far off from those precedents. Oregon had 52,000. Nevada had 50,000. And so on and so forth. Now let's come
to the present. Look at the present-day states, and you will see states like Wyoming which has only 330,000
inhabitants according to the last census. Vermont 400,000 people. And if you look at the population data on Idaho,
Rhode Island, Montana, Alaska, and the Dakotas, you will see that they're very sparsely populated also.
So I hope that will finish with the argument that you "don't have enough size or population". It's just a nice excuse
that sounds "neutral". In reality in the House of Representatives the representation is based on population,
proportional representation. The minimum amount of congressmen that you would get, would be one according to
your population. In the Senate, irrespective of size or of your population, you would be allotted two senators.
There's a dilution factor and there will be some states that will consider that dilution factor. But it's only a dilution
factor of two among one hundred and two, which is less than two percent. So really there's not much except that it
presents convenient excuses. Nice excuses which sound, again, neutral.
Now the other issue is whether you have enough resources. We may be poor, but we have our dignity. There is no
legal requirement that you have to be rich or middle class or you have to be developed or underdeveloped to enter the
Union. Actually the Union is composed in economic terms, of poor states, of rich states, of middle of the road states.
And it's not only money that counts, but you need enough human, cultural, commercial resources to sustain a state
government. And actually we in the colonies are sustaining a state government. I know that you are doing it with the
federal taxes that you pay and that come back to the territory, but there are many ways of going around that, especially
when the economic terms of admission are drafted. Again like yesterday as the panelists stated in connection with
free association, it's an issue to be negotiated. And in terms of economic issues, I've always stated that a nation that
lifted a destroyed Europe with a Marshall Plan, should have no problem aiding the economic development of any of
its small territories. Now, as to the economic issue again, there are three facts that stand out, of the previous statehood
experience. One, the states today enjoy one of the highest standards of living in the whole world. That's a fact.
Second, I know of no state that has gone into bankruptcy or into a welfare line as a result of its admission into the
Union. That's a fact. And third, the last two states that came in, Hawaii and Alaska (Hawaii resembles us, a lot more
than Alaska) enjoyed unprecedented economic booms right after statehood. And those are facts also. Therefore, the
conclusion number one on my paper is that the statehood issue is not a constitutional or legal issue, but a political and
economic question, which you must consider whether it's beneficial for your people. There are no legal or
constitutional obstacles to the Islands' admission into the Union.
However, there will be enormous political problems. Conclusion number two is, that the past experience proves
that in states with large non-White and non-Anglo populations, the single most pervasive obstacle to admission was
racial prejudice, cultural and ethnocentric biases. That happened in the admission of Louisiana in 1812, with its
French-Creole population, with the admissions of Missouri, Kansas, and West Virginia with their large population of
"free blacks" and the slavery issue, with the admission of New Mexico and Arizona in 1912 with their Mexican-
American populations, with the admission of Idaho and Utah in the 1880s with their Mormon population and the
polygamy issue, and with Hawaii which was predominantly Oriental.
In 1950, only 17% of the population of Hawaii was White, 39% were Japanese right after the World War I, 19%
were native Hawaiian, 13% Filipinos, 13% Chinese, and even 2% Puerto Ricans. (We're spread all over the map.)
Hawaii proves that a state with only 17% Whites, can be admitted into the Union.
There are certain curiosities, however, that come out of the whole statehood experience. First, those who oppose
admission on racial, cultural or ethnic prejudices, will never express their opposition in so many words. They will
always use excuses and subterfuges. They will utilize seemingly "neutral" concerns (they call them), such as: 1)
you're not ready for prime-time yet; 2) you're too dependent and have no resources; 3) you're non-contiguous, which
really after the admission of Hawaii and Alaska is gone; 4) you have a different language and culture; 5) you're too
poor; 6) you do not have enough population--and any other seemingly neutral argument that may hide the un-
American sense of being a racist or of having racial or ethnic prejudices.
There's another curiosity that comes out of this situation, and it's their usual ploy. And the usual ploy is, that when
a territory starts getting restless about territorialism or colonialism, they come up, always, with so-called original
and convenient formulas such as commonwealths, free associations, and anything that will prevent you from going all
the way towards equal rights in statehood or all the way towards full independence. And you will see that
unarticulated premise, with those merchants that will offer you these benefits of free association or compacts or
commonwealths. Go to Puerto Rico; it's only $75 each way. Look what we have there and you will see. Talk to
Puerto Ricans. Talk to them whether they're happy with their situation. We have a compact; we have a free
association; and we have a commonwealth. We have them all, basically. And it's 20% unemployment for the last--I
don't know how many years.
Thus, beware of the perennial merchants of halfway-house colonial formulas, such as commonwealths, compacts,
super- compacts, and free associations, for they will try to sell our peoples, anything short of granting full equality
within the nation or full independence outside of it. Conclusion number three. In the long run the historic record
suggests that given patience, resiliency, and a strength of purpose, a culturally and racially mixed territory can
overcome and will overcome these biases and obstacles. So basically those are the conclusions of the paper.
To finalize, there are four neverr" in a struggle for decolonization. One, never, ever accept a colonial halfway
house. Second, never take no for an answer. Third, never hire mainland attorneys to represent you. And finally, like
the slick deodorant commercial, no matter how tough the going gets with Congress, never, ever let them see you
sweat. Thank you.
Dr. Ragster Senor Davila, muchas gracias. Now we'll go a few miles to the east and have Attorney Vialet look
at the Virgin Islands as a state of the Union after that inspiring rendition from Atty. Davila.
Attorney Vialet Thank you very much. Good morning ladies and gentlemen, fellow platform guests, President
Richards, honorable guests, Governor Paiewonsky, and Mr. Schulterbrandt, the representative of the Secretary of the
Army of the United States, Senators, Cabinet Officers of the Government of the Virgin Islands, and distinguished
dignitaries. When I say distinguished dignitaries, I'm referring to the representatives of the Colonial Office of the
mother country known as the Department of Interior of the United States of America and Chairman Amar Amari,
Chairman of the Sub-committee on Small Territories of the United Nations Decolonization Committee and members
of his entourage. I'd like to state for the record that I'm here on behalf of the University of the Virgin Islands and not
the Republican Party. It is my pleasure this morning, in an academic setting, to speak on statehood. I come before
you to express what some believe the Virgin Islands as a state of the Union would be. I have to concur with my
colleague to my right that ultimate freedom results in either being a part of the mother country by statehood, or
independence, and for that I commend Attorney Davila for bringing that point out, and I feel sort of lacking coming
behind him. I wish I came before. But, I will endeavor to do my best to live up to the standard that my fellow
attorney has set. I would like first to make some observations. First, the University of the Virgin Islands is to be
commended for being in the forefront on the issue of status. This conference was planned long before our elected
territorial leaders had rekindled the issue of status with the mother country. Secondly, I would like our elected
territorial leaders to know that the issue of our status should be settled by vote of the people. If this is not done at the
ballot box in an open election, there could be great unrest Also, this should be done before the issue of a constitution
comes back to fail again in another election. The status issue, once established, will tell us which way we are heading
and show us the light on how a constitution can take us there. Even if it takes 150 years, we should spend the time on
it. Thirdly, the issue of our Americanization should be judged by the United Nations as to whether it has been good
for the descendants of the population who had ancestors here prior to 1917, or bad for them. History will demand that
the United Nations stand up and give judgment in light of the mandate by the King of Denmark that the Danish West
Indies were not to be placed in a lesser position than they were under his rule, as part of the agreement to the enabling
works of the treaty of sale. There are some who feel that current events and circumstances would dictate that the
islands should be turned over to the United Nations as a protectorate. In that light, I understand that our Governor has
been recommended for the position of High Commissioner. Fourthly and lastly, I would like to commend Dr. Paul M.
Leary and the staff for making this conference on status an issue on the minds of our citizens. Now that I've taken the
liberty to make my observations, I shall endeavor to present what statehood would bring to this part of the American
West Indies. Oh yes, we must not forget that we're only part of the American West Indies and could at any time in
our present status, be annexed to Puerto Rico by an act of Congress upon recommendation by the Executive Branch of
the mother country through its colonial office. For this reason alone, as well as many others, the issue of statehood
and its benefits are most important to us. Also, as Commissioner of Real Estate of the Government of the Virgin
Islands, for example, I would then have to send my reports to someone in Puerto Rico and the Attorney General of the
Virgin Islands would then have to send his reports and conclusions to someone in Puerto Rico, so you can see what an
awkward situation that would be. I'm hoping that if we were annexed to Puerto Rico that we would have a good man
like Attorney Davila as my supervisor. I trust he would decline that position (Atty. Davila: I would) and our opinions
would stand. Statehood for the American Virgin Islands would mean at the outset that we no longer would be a
colony as defined in Webster's New School and Office Dictionary, "as a body of people under the jurisdiction of a
parent country". Someone said a geographical area held for political, strategic, and economic advantage is also a
colony. On both counts, we qualify. So we would shed the colonial stigma of inferiority by being a state and allow us
equal status in the American way of life from statehood. There would be a decline in the political influence from the
colonial office as to federal appointments and land acquisitions. And ladies and gentlemen, you know how sensitive
we are to those federal appointments. We are not naive enough to think that the Interior Department would turn over
the National Park in St. John or the Fort in Christiansted to us. History has shown us that whenever a state is admitted
to the Union, there's a post-economic boom. This boom would bring unprecedented stability and greater
diversification of our economy. Our court system would be equal to that of any other state in the union. We would
have a state Supreme Court and its decisions would be affirmed by the Supreme Court of the United States. We too
would have the same rights, sovereignty and jurisdiction as any other state and would gain title to all public lands
lying within our boundaries. The powers of Congress would be limited to us because of the Equal Footing Doctrine
which defines political rights and sovereignty. This doctrine is a part of the principle of the permanent union
established in the case of Texas v. White, 74 US 700, which holds that the Union is an indissolvable bond in
perpetuity, which means that once a state, always a state, until the Union shall be no more. Once admitted to the
Union, there are some points that would come into being. One, self-determination and true popular sovereignty; two,
full voting representation in the House of Representatives and in the United States Senate, the right to vote for
President and Vice President, the right to vote to amend the United States Constitution, the right to vote in all federal
elections; three, the right to share equally in federal programs; four, transfer of mutual resources and aid to become
self-sufficient sovereignty; five, pride of the self-assured and not the anguished feeling of a second-class citizen. This
in a nutshell is what our being a state would be. We would have more control directly over things like the West Indian
Company, Hess Oil, and the banks in the Virgin Islands that take 21 days to clear a check although our local Senate
has passed a law that they take three days. The CIA could not by law operate legally in our soil without the consent of
the state government. The CIA of the United States operates Caribbean Command cells here, which they can't do in
any state in the Union. Why should we be a target for the KGB? Congress gives the state the necessary means and
resources that would enable us to sustain an operational and effective state government. History has shown that the
Congress has made certain that the new state is put on equal footing in a technical sense to sustain itself economically.
This will be done by a tool known as an Admission Act, an Enabling Act, but ladies and gentlemen, we can expect an
Omnibus Act, and all of us are familiar with the Omnibus Act process. The congressional aid to us would come in the
following manner: one, land grants depending on our needs at the time of statehood; two, natural resources being
transferred for economic development; three, special monetary aid in the form of grants and transitional adjustment
fees; four, recognition and the granting of our seaward boundaries for future economic development Now ladies and
gentlemen, before we can get a land-sea permit, it has to clear the Corps of Engineers of the Department of Army and
that's represented by Mr. Schulterbrandt's boss, the Secretary of the Army. What does the Secretary of the Army
have to do with what is going on at Lindberg Bay? Nothing. But, according to the law, the US Corps of Army
Engineers must sign off on whether we move a shell from one end of the beach to the other. That's the law. Congress
has always recognized the need to give assistance to new starters in the Union, and we can expect no less. It's a well-
established tradition to give economic aid to the new state to develop resources to support the state government and
provide a basis of public service. This treatment by Congress has been justifiable because most states at the time of
their admission are distressed financially, as we are. The issue of a communist or socialist takeover of the Virgin
Islands would be put to rest once and for all. Statehood in the Union would move us to the West, the United States,
permanently. There would be no possibility for a strong left wing movement to grow in these islands. Our National
Guard would be elevated to that equal of a true state standing army which would provide for the adequate defense of
these islands. In conclusion, I would like to note that statehood would bring a change in our economic framework that
would benefit the majority of the people living here and not just a few. It would be the ultimate solution to our present
and future problems. There would be a wide range of economic benefits from Congress that would support our
complete transition to statehood and develop true self-sufficiency as a state in the Union. I thank you, ladies and
gentlemen, for your attention.
Dr. Ragster Thank you very much, Attorney Vialet. At this point what I would like to have the panelists do is
take an opportunity to respond to statements made by other panelists. I'll start with Attorney Barnes. Is there
something you would like to ask or respond to--a statement made by any of the other panelists?
Attorney Barnes No, but I would like to react to a point that was made by one of the panelists yesterday. In
underscoring the point I'd raised earlier about the importance of congressional representation, someone said that
lawyers should be able to tell us how to do things rather than what we can't do. I think on this question of
congressional representation that might just be one of the issues. There's the Overseas Voting Rights Act, for
example, which was passed by the Congress in 1976 and which allows an American citizen to vote in national
elections even if that American citizen lives outside of the United States and even if that American citizen is uncertain
as to whether he/she will return to the United States and be domiciled there again. It seems to me that has some
implications for the Virgin Islands and other places where US citizens reside. It certainly has implications for those
who have moved from the States to the Virgin Islands, but it may even have implications for native Virgin Islanders.
So again, as you sort through the various options, I think the lawyers need to look at creative ways of achieving the
whole range of things that will provide some benefit to the island population.
Dr. Ragster Thank you. Attorney Davila, do you have a statement or question you would like to pose at this
time?
Atty. Davila-Colon Yes, I would like to clarify Bill Boyer mentioned that he didn't have an idea of what the
judges in the Insular Cases had in mind when they made a separate and unequal doctrine of unincorporation. Well
first of all I would have to recommend to you a book on the subject. It's a study of the background of the Insular
Cases. It's called The Supreme Court and Puerto Rico: the Doctrine of Separate and Unequal and it's in 1985 that it
was written. The reason is basic racism. I will quote from page 24 a statement from Balzac vs Puerto Rico, which is
a statement of a U.S. Supreme Court concerning why this situation is different for our territories. It says "the citizens
living in those possessions are distant ocean communities of a different origin and language from those of our
continental people". That's basically the reason why.
Dr. Ragster Professor Boyer, do you need to respond to this?
Professor Boyer Well I did say that I felt very strongly that the motives of the Justices were rooted in racism
and bigotry. I cited some sources to substantiate that. I'd like to ask Mr. Davila-Colon to respond to something that
was said yesterday, that he could elaborate and clarify this in terms of his research I'm sure. Now yesterday Professor
Leibowitz talked about commonwealth as being something different from unincorporated status, and he mentioned
three points. He says a maximum of local self government, restriction of federal power, including the Department of
Interior is no longer there, and joint and equal distribution of powers and this is what commonwealth means. And
then he mentioned certain Supreme Court cases as you recall. He mentioned a 1974 case that the Supreme Court held
that Puerto Rico is no longer a territory and it was a commonwealth instead. But in 1980, the Supreme Court held that
Puerto Rico is still under the Territorial Clause, Article IV, Section 3 which Congress has complete power over. And
would you say, therefore, Mr. Davila, that commonwealth is just another name for unincorporated status, that nothing
really has changed? What's your response to this?
Atty. Davila-Colon We have a saying. It's the same dog with a different leash basically. It was the same thing.
I understand Mr. Leibowitz's position. Mr. Leibowitz is one of the fathers of the creature, so he has to defend that it's
different. Basically we have American citizenship. He said yesterday that we have our American citizenship with
commonwealth; that's not true. We had it since 1917 with the Second Organic Act. Second, we elected our governor
before the commonwealth status came into play; it only gave us a constitution which we had a right to do anyway and
a state government, which we had operating since we had our government before that. So really, commonwealth is no
different from territorial status. Territorial status, commonwealth, the free association that they're
offering--everything is the same thing.
I want to clarify something. When I mentioned not to hire mainland attorneys, first of all we have the experience.
I'm not talking as a lawyer, I'm talking as a Puerto Rican, who has paid with his taxes many of the hefty fees for
those attorneys. And I can tell you, in the case of the Micronesia, in the case of the Marshalls, what happened was that
when they ended negotiating the pacts, you had an American, though very, very efficient mainland attorney like
Ambassador Rosenblatt representing the United States, and you had a Washington law firm representing Micronesia
and the Marshalls. So there you had Americans negotiating with Americans the rights of colonials! My god. And
what really bothers me was, that Ambassador Rosenblatt yesterday accused my friend from New Zealand of being a
foreigner talking about the rights of colonials, and here you have Americans negotiating with Americans about the
rights of colonials. It really drove me crazy. There is an inherent conflict of interest. And we colonials have a
tendency to look at our fellow citizens in the North as if they were demigods, you know. And we tend to deny our
own people and our own capability. Listen, if you're going to negotiate whatever you negotiate, you do it yourselves.
Dr. Ragster Well Attorney Davila, I think that's advice well given and it's certainly something that people have
been looking at more closely these days. I hope we'll continue to do so. Attorney Vialet, do you have a comment or
question you'd like to make at this time?
Attorney Vialet Yes. I think Attorney Davila has hit on my point. And I'd like to commend him for bringing
out the point of bringing in outsiders as consultants, paying them fat fees and leaving me out. I would be remiss if I
didn't. I was going to make note of that. Everything that comes in here--I don't know whether our leaders have a
mental block or they're so Americanized that they must have a Washington law firm or a Washington lawyer when we
have capable people here that can represent us and put us on the payroll. But anytime there's something to be done for
free, they can think of me. But when it is to be paid, when the payment is coming up, ladies and gentlemen, then all of
a sudden, we must bring in an overlord. This is the concept that the Danish crown even threw out 300 years ago of
bringing in a superior vassalthane to give you advice as to what is to be done. Time and time again, this government
in its infinite wisdom always says--they have a phrase and it's one of neutral phrases that Attorney Davila was talking
about--we're looking for the most competent. We're looking for the best We're looking for the most experienced.
We're looking for someone with stature. When will we have stature and experience if you don't give it to us? But at
least we should be compensated for our advice, and I charge our elected officials that the next time that they go out
and get consultants--I'm not saying hire me, but I'm saying hire some local attorneys and give us a piece of the pie.
Thank you.
Dr. Ragster I'd like to add something to that. I agree with you except that you should take it one more step. If
you, as a competent person in a particular area where there's some need or some work to be done, you should say
something out loud when officials hire people from other places. I think we don't use the opportunity enough. At this
point, unless there's something else that the panelists would like to express to each other, I'd like to open the
discussion to the floor.
Panel IV: o IiHE
The
INDEPENDENCE ""
Status
Panelists:
Assyl Warner, Office of the Prime Minister, St. Kitts/Nevis. "Independence in the Eastern Caribbean: Implications
for the U.S. Virgin Islands"
Carlyle Corbin, Office of the Governor, U.S. Virgin Islands. "Independence and Self-Determination in an
International Context"
Manuel Rodriguez-Orellana, U.S. Representative of the Puerto Rican Independence Party and Professor of Law,
Northeastern University. "The Independence Movement in Puerto Rico"
Gene Emanuel, University of the Virgin Islands. "The Conditions for an Independent U.S. Virgin Islands"
Moderator: Norwell Harrigan, Political Scientist and Consultant, U.S. Virgin Islands
Dr. Norwell Harrigan We have come now to the final option in the status debate which we have been conducting
for the past few days. I have lived in these islands and worked at this University for some 17 years, and I have the
distinct impression that independence is regarded as a "non-option" option due to two guiding principles. One, he
who pays the piper calls the tune; and two, let Uncle Sam do it. Some people might interpret the second as "never
miss a freeb". I'm reminded of a story of a man who purchased a pair of spectacles because he desperately wanted to
know something, to get certain information from a report in a book that he had in his possession. Donning spectacles,
he reached for the book, but for some reason he didn't understand, he failed to achieve the desired objective.
Frustrated, he took the glasses back to the store to be corrected or exchanged, since obviously something was wrong.
His problem, however, was not the result of the glasses but it resided in himself. He was illiterate and unable to read.
We are about to fall in a similar trap.
It is important that this option, independence, should also be discussed, at least because of the academic setting of
the conference and it is a part of the process of political education which is to follow. I have, therefore, the privilege
of introducing the panel, incidentally the only one composed entirely of Caribbeaners, a term which I consistently use
to distinguish us from the Caribbeanists who know all about the area but who lack the insights gained from belonging.
They will speak in the order that appears on the program. Dr. Assyl Warner, a graduate of this University, who has
been the Ambassador of his country in Canada for four years and is at present, an advisor to the Prime Minister in his
home island, St. Kitts/Nevis. And he has first-hand knowledge of the trials and tribulations of a poor Microstate
which has the political will to be master in its own house. Dr. Carlyle Corbin, who is trained in international relations,
and is at present the Governor's point man in such organizations as the United Nations and the Economic Commission
for Latin America and other international groupings as they relate to the Virgin Islands, will speak in a theoretical
framework of the international situation. Dr. Rodriguez is a professor of Inter national Law at Northeastern
University and is the Representative of the Puerto Rican Independence Party in the United States, an organization
which for many years has been leading the fight for complete independence of Puerto Rico from the United States.
And finally, Mr. Gene Emanuel of this University, a man who, in spite of a Bronze Star and a Purple Heart gained in
Vietnam, is a true believer in independence for these islands and perhaps one of the few natives able and willing to put
forward the argument held by his fellow true believers. This afternoon's session we're going to follow strictly the
rules which have been laid down for us--fifteen minutes for each speaker. I'm not doing this because, as has been
attributed to Senator Dole, I am mean spirited. I'm doing this because, like Vice President Bush, we have to go home
to change the linen to be able to return at seven o'clock. So at 4:30 we will bring this session to an end. I have a little
clock which I'm passing to each of the panelists, and I propose to use the long and honorable method of closing the
pubs in England: "Time; gentlemen, time". So we will begin this afternoon's session and ask Dr. Warner to speak.
Dr. Warner.
Dr. Warner Thank you, Mr. Moderator. Governor Paiewonsky, President Richards, and my former colleagues.
Before I get into my discussion, I would like to state very clearly that I am a firm believer in the principles of
independence and the thrust for independence. I would like to make it unequivocally clear. Secondly, I also support
very strongly the move for any dependent territory or country in its drive for independence. Those of you who don't
know the history of the Eastern Caribbean in terms of its development to independent status would not recognize that
our thrust for independence is not of the same mold as the United States Virgin Islands. We came out of a European
colonial system and for us we had two options. We either remained a colony of Britain or one of the European
nations, or we became independent And secondly, the other choice we had was either to align ourselves with a larger
island within the Caribbean or a larger metropolitan state, which in a sense meant another form of colonialism. And
so governments took it upon themselves to make the thrust and become independent countries. Now independence
initially has two things. One, many people see independence as the highway to utopia, as the road to everything in
life. It is the end of all things. While others within the same community will see independence as the collapse of
civilization. This is the end of democracy. This is the beginning of socialism. This is the beginning of communism.
And of course the introduction of dictatorship. Fortunately for us, neither of those things have been proven true,
because independence has not given us utopia and it has not given us dictators. Of course one or two governments
tried to take the rocky road to socialism and we all know what happened to those leaders and to those countries.
There's another feeling within the Eastern Caribbean--that the philosophy of independence involved basically one
thing, and it's the mystification of independence. If you speak about socialism, if you speak about Marxism, if you
speak about communism, there's no depth of ownership, no depth of understanding, and no depth of belonging like
the mystification which independence has. To us in the Eastern Caribbean independence is the state of belonging, the
state of mind, the state where you can stand on a rock, you can stand on your country and feel that what you're
standing on is yours. It is the state of mind when you look around, you know I own that piece of land. My neighbor
owns this. It is the state of mind knowing you can control who comes in and who goes out. It is a state of mind and
reality knowing that you control your political destiny. Now all that said and done, there are certain realities about
independence and one of them is, it seems to involve a certain degree of viability. And viability normally rests on the
size of the country. The smaller the country, the greater the question asked, is it viable for you to be independent? In
other words, can you survive as a country of 30 or 50,000 people? Now the larger the country, the smaller is the
question because the larger the population, the greater is the strength of the nation. However, places like Antigua, St.
Kitts- Nevis, Grenada and St. Lucia have proven this to be a fallacy. Also, in respect to viability, it tests your ability
to operate within the international system. It also, at the same time, addresses the real question of the size of your
government's bureaucracy. The smaller your viability, the smaller your country, the greater would be your
bureaucracy. In other words, government would tend to employ more people because there are certain trappings built
into any independent country which you must have. And once you have reached to that level of your bureaucracy,
regardless of the size of the country, the bureaucracy very largely remains the same. Therefore, if you are small, you
tend to spend more money on things like foreign relations, diplomatic relations. Within the Caribbean, there are
basically five features of independence. The first one is what we refer to as institutional fidelity. And what that means
is that you have a certain fidelity towards a particular type of government. Whether it be a Westminster model type,
whether it be a two- chamber government, or a unicameral, or a bicameral, whatever, you have a fidelity towards
something. And once you have structured your government on that particular road, it is very difficult for you to go
and change your status. The other one is what we refer to as government pervasiveness. Government then becomes
the key mover of everything which happens within the country. Government rules things like your communication
system, your immigration system, your land distribution system, your development system, your transportation
system. Especially things like your telephone system, your radio system, your newspaper they don't control them
but they have a certain degree, a certain sense of direction. The other is that many people within the Caribbean tend to
see us as one-structured government, where you have one party in power for many many years, and that is very true.
But built into that system are changes. We have opposition parties of course, but there's a concerted effort to maintain
a certain level of political harmony, because once you get to the state of independence, the road to true independence
depends very largely on what you refer to as political harmony. And political harmony does not only mean
stabilizing the structure for government. It means stabilizing a society; it means people belonging to a society, people
owning something within a society. It is what we refer to sometimes as the unanimity of consensus. In other words, if
you do not have the consensus of the vast majority of your population, then in fact you do not have real independence.
And I say that when I reflect on the Virgin Islands. Because for these islands to move--whether into statehood or
independence-- there must be a sense of the unanimity of direction. The other thing which is built into the Caribbean
is in a sense of pragmatic conservatism. That is, most of the Eastern Caribbean governments tend to be right or right
of center. That has had its pros and cons. Grenada tried to go left of center and got slapped on the wrist Guyana has
tried it and also got slapped on the wrist. Jamaica tried it and we all know what happened to Michael Manley. The
other one is, which is also very true in the Caribbean, we have experienced what we refer to as exaggerated charisma.
We tend to look to what we refer to as good political speakers. It is a tradition in the Caribbean--that your Prime
Minister must be a very eloquent speaker. That's what I refer to as the politics of speaking. There are certain things
which are vital to independence. First of all, the state must own its properties which means it must own territory. You
must have a homogeneous indigenous population for independence to be viable. Regardless of what we might think,
unless your population, the vast majority of your population, is indigenous or homogeneous, you cannot in essence
have real independence. And the other one, you must have a government which is susceptible to change. As you
know, most independent countries, initially, tend to take off in a particular economic direction. We get aid; we get
grants, whatever, from the former metropolitan country. The IMF is always there willing to lend you money. And we
come to what we refer to now as the financial implications of independence. It is all well and good when you're new
to get money from everybody, but getting that money leads many small independent countries to financial trouble.
And you suffer from financial intimidation. And financial intimidation for us means when you can go up to the
World Bank and the IMF and you can ask for a loan of say $5, $10 million. But in asking for the loan, you must be
certain that your programs are structured according to the plans and the ways and the rules of the IMF and the World
Bank. Many countries of the Eastern Caribbean have gotten in trouble in terms of spending the money. And what has
happened, and this is one of the implications of independence, you find yourself after a while in a position where the
World Bank and the IMF want to write you a budget. They want to sit in your cabinet and tell you what to do. That is
when you fool yourself thinking that you can reap utopia overnight. And the countries that attempt to do it overnight,
they have gotten themselves in trouble and the IMF have been telling them either to devalue their currency or to
tighten their budget. The other part of the financial implications of independence is that independence
means--especially with small countries--you must be able to prove yourself within the international arena. And that,
believe it or not, is a very expensive venture. I can give a very real example. When my country became independent
in 1983, our foreign affairs budget was about $50,000. In 1988, it is $1.5 million. And you would have to create a
system within government to project yourself on the international market because you are an independent country.
You can no longer depend on the former metropolitan master to do your internationalizing for you. And in that regard
what has happened to us, we find ourselves giving. We have to give large donations to things like the IMF, UN, OAS,
ECLA--just name them EEC, ACP. And you find you have to attend most of these annual or biannual meetings
because you never know what will transpire that will affect your country. Everybody goes to these meetings. And so
you tend to generate--you tend to grind out hundreds of thousands of dollars to support an international facade. But of
course, if you don't portray that type of interest and that type of international movement within the system, then your
viability within the international system becomes null and void. There are other financial implications, and one of
them is each individual independent country must balance its national budget. You cannot have a deficit You must
balance. If you don't balance your budget, the EEC or the World Bank or whateverif you're going to borrow money
from them or to get a loan, they will first look at the way you balance your national budget. There's another drawback
to independence, also, and that is after a while, countries tend to lose some of their nationals, their very good
nationals, because very often the states cannot maintain their exposure on the international scene, and so very often
you find yourself losing much of your upper echelon civil servants. That leaves countries, and I can speak very freely
of my country--I speak of it just like Grenada or Dominica or Antigua--we tend to lose people from the government
system. You also tend to lose them to the private sector, because the private sector salary is more often than not,
much larger than government salaries. The other side to it is, that at this stage, you have the ability to control your
internal development. In other words, John Doe cannot come in and put down a condominium where he sees fit. He
cannot come in and buy twenty acres of land for example; you control it Ministers of Government tend to look very
closely at who the developers are and what their intentions are. And we have a very clear example. In January a
gentlemen came to see the Prime Minister, but usually they would have to come across to me first. And he sat down
and he said I have $100 million to invest in St. Kitts. Then he pulled out the budget speech which was given a month
before and it was very sound. Then he pulled out the budget itself, the estimates, and it was very sound. Therefore he
went through St Kitts' budget with a fine teeth comb. And in doing that he said I could spend $2 million here, could
spend $5 million there and after a half an hour, I said ok, I'll see you tomorrow. And when he left, I had to laugh.
Because the $100 million that he was bringing in for six months time was twenty times St. Kitts' budget. Now when
you get to that stage, that is what we refer to as financial intimidation. And it is a catch which most of us in the
Eastern Caribbean have to avoid. There is a thread working through the Eastern Caribbean, those of us that are
independent countries, so that as the gentleman walked out of my office, I got on the phone and I called my
colleagues in Dominica, and St. Lucia, and Antigua, and Grenada, and I told them who this gentleman is and what
he's doing, so look out for him. And so said, he went to every country, and they all said thank you but no thanks.
You realize when you're independent, you must eventually give up some of your independence to a larger
organization; it is vital. So you have it in the Eastern Caribbean. In the Eastern Caribbean, it is the OECS. You have
the larger Caribbean, CARICOM. Because you find after a while, as a single independent entity, you cannot alone
singlehandedly face most of the multinational corporations, so you approach them from a collective point of view.
We approach the EEC. We approach the OAS collectively. We approach the UN, the lending agencies, collectively.
But when we approach them singlehandedly, they ask what is the size of your population, and then they dispense
whatever aid they're giving you based on that. What I'm saying in a very round-about way is that although you are
independent, you must be realistic and realize that built into independence is the need for you to be interdependent on
each other. Finally, let me get through what may be a ticklish question. There are some countries which are single
independent states and there are others which are multiple country states-that's Trinidad and Tobago, St. Kitts/Nevis,
Antigua and Barbuda, St. Vincent and the Grenadines. Built into all that is the real question of secession from
independence. Barbuda sometimes say they want to secede. Nevis threatens St. Kitts ever so often if we don't get
this, we're going to secede. Tobago threatens Trinidad. Now I'm not saying that St. Croix might threaten St. Thomas.
I'm not trying to be facetious, but it's a real question. You have to think of that other side of it. If you move
independent, what do the Crucians say? And very lastly, in thinking about the process towards any type of a change in
political status, what we had to do in the Eastern Caribbean, we had to make the thrust towards independence a non-
partisan issue. Once your change of status becomes a partisan issue, it's a dead issue. In other words, if it becomes
the thrust of one senator or one party or one island, it will fail. It is also wise, from my point of view, as someone
living in an independent country and seeing the process, you cannot push the change of political status too fast,
because people in general tend to think twice in terms of political change. And I say that because I can reflect
presently within the Caribbean about another form of political change. We don't want to call it federation because
federation has its connotations; we want to call it closer unity. Whatever it means, it means. But we now have to go
and reeducate people from independence, which we have today, to a larger independence of seven separate entities,
and that is a type of political status we are moving to. Now we realize that is not something you can do in six months
or eight months. Realize that it is not a political issue. For once you politicize it, it's a dead issue. So it has become a
non-partisan issue, and it's an issue which would evolve over three to five years, when whichever politicians move
out, their successors will pursue the matter. And I think I'm out of time.
Dr. Harrigan Now we'll ask Dr. Corbin to make his presentation.
Dr. Corbin Thank you, Mr. Chairman. I'm pleased to have the opportunity to present an international
perspective on the political status deliberations of the Virgin Islands. I'm also very pleased to be on the panel with
such distinguished representatives. Largely unknown to the average Virgin Islander is the United Nations' role in
reviewing the political relationship between the Virgin Islands and the United States under international law, which is
spelled out in the United Nations Charter. This actually began as far back as 1946 when the United States placed the
Virgin Islands and other dependencies on the United Nations list of non-self-governing territories, where the Virgin
Islands remains today. The United Nations subsequently adopted the Declaration on Decolonization in 1960 and
created the Committee of 24 on Decolonization in 1961, to provide a mechanism to undertake a comprehensive annual
review of the political, economic, social, educational, and constitutional developments that take place in the territories
for the year. That list of non-self-governing territories under the United States includes the US Virgin Islands, Guam,
and American Samoa. Under the United Kingdom, in the Caribbean alone, it includes the British Virgin Islands,
Anguilla, Montserrat, the Cayman Islands, the Turks and Caicos Islands, and Bermuda. There are others as well, but I
won't go into the full list at this time. The United Nations' emphasis on the political and constitutional status of the
respective territories was intensified in the early 1970s with resolutions by the General Assembly, comprising all
member countries, expressing concern for the limited political and constitutional development in the dependent areas.
These earlier United Nations' resolutions also called upon countries which maintained territories, which we
call in the international community "administering powers", to consult with the freely elected representatives of the
dependencies to set up a specific timetable for the people of the territories to determine their political future. The
United Nations had urged that the Decolonization Committee in the 1960s urge the administering powers to allow the
people of the territories to elect their own leaders, and in part as a result of that United Nations review, the Elective
Governor's Act of 1968 was approved by Congress. From 1977 to 1979, U.N. resolutions on Virgin Islands political
status were strengthened by calling on the United States to encourage further and meaningful discussion regarding the
political and constitutional status of the territory. This period coincided with Governor Cyril E. King's address at the
United Nations in the beginning of my participation in United Nations affairs on behalf of the government of the
Virgin Islands. In 1981 the U.N. General Assembly reaffirmed that the US was obligated, in consultation with the
freely elected representatives of the people, to inform the local population of the possibilities open to them, and in
1982, the General Assembly called upon the US to ensure that the people of the V.I. were fully informed of their
political options. In light of the 1982 referendum, where Virgin Islanders voted to settle the status issue before further
attempts at writing a constitution, the United Nations in 1983 took note of the unsuccessful efforts by the V.I.
Government to set up a second Status Commission with a projected referendum for the following year. In 1984, the
United Nations officially recognized the establishment of the V.I. Legislative Select Committee on Status and Federal
Relations. In 1985, as a result of unprecedented debate by the Decolonization Committee on the issue of status, the
General Assembly reaffirmed that it was ultimately for the people of the Virgin Islands to decide their political status
without external interference, and reaffirmed earlier resolutions on the importance of fostering an awareness among
Virgin Islanders as to the possibilities open to them. The increasingly detailed debate on V.I. status began in earnest
in the 1980s as a result of a very active role played by the Virgin Islands Government. This debate was further
accelerated in 1986 when the US representative to the committee stated US readiness to respond to the wishes of the
people of the Virgin Islands on future status. In 1987, the US representative emphasized that the territory has control
over its future, including the possibility of modifying the present political relationship, and the US representative
further stated that they fully support the principle that it is the right of the people of the Virgin Islands to decide and
determine their own destiny. Of course, U.N. resolutions are only as effective as their implementation. And without a
sustained effort in the Territory to address the status question, US assistance to the Virgin Islands' status efforts have
not materialized. However, as a result of these U.N. resolutions, the US is now on record as being willing to support
the wishes of the people of the Territory. How clear the support will be if the V.I. seeks to obtain authority in areas
heretofore under federal control will be determined by how serious we are about what it is we want. As this panel
deals with the independence option, please permit me a few words on that option which would grant full unconditional
sovereignty to the Virgin Islands with complete control over all domestic matters, the right to conduct relations with
other nations as a legal equal, the right to participate fully in international organizations, and the right to enter into
agreements desired with other countries--according to the 1981 Virgin Islands Status Commission Position Paper.
The transition from our current status to independence would result in economic aid from the US being dramatically
impacted, since an independent Virgin Islands would not be eligible for US federal domestic assistance. From the
economic perspective, then, one might conclude that independence for the Virgin Islands would be extremely difficult
in light of these projected losses in federal aid, and other factors such as size, small population, limited resources, and
the overwhelming psychological dependence on the US created over some 70 years of federal jurisdiction. However,
elimination of our participation in US federal programs could very well be offset, to a degree, by a long-term US
foreign aid program and other phased-in program assistance to ease the effects of the change in political status. This
occurred with a ten-year transition aid plan for the Philippines, the only US territory to gain independence from the
United States. Foreign aid from non-US countries would also be available and the creation of new revenue-generating
sources not currently considered feasible under the current status would be possible as well. Our gasoline excise taxes
come to mind. Participation in aid programs of international lending institutions such as the World Bank, the
International Monetary Fund, the Interamerican Development Bank, etc., would probably not be available to an
independent Virgin Islands because of our high per capital income and the focus of these institutions on countries with
lower per capital incomes. Additionally, the Virgin Islands' infrastructure compared to many of the newly independent
nations in the Eastern Caribbean, is well-developed and would serve as a major factor in attracting investment, since
an underdeveloped infrastructure is a major deterrent to economic development. Thus economic conditions may not
be as much a reason for discounting the independence option as a lack of local conditions necessary for independence
to be seriously considered by the people. One such condition is the near absence of the concept of a Virgin Islands
national identity among the local population. The very words nation or country are normally not used to define the
Virgin Islands, but instead to define the US or federal government. This is not the case, for example, if one listens to a
radio station such as ZBVI in the British Virgin Islands. When the news reporter speaks of "country" or "nation", he
specifically is referring to the British Virgin Islands. The opposite concept is reinforced daily by the U.S.V.I. media,
which segments their coverage into "national" or "US news", "local" or "Virgin Islands" news, and "regional" or
"Caribbean" news. Additionally, a "local" news voice is rarely heard on a regular basis. The 24-hour cable television
programming further contributes to this situation. These conditions, therefore, result in the conclusion of many that
the independence option is not a viable one. Accordingly, a serious economic and political analysis on the
independence option has never been done and an organized entity that would carry out such an analysis, such as the
Puerto Rican Independence Party, does not exist here in the Virgin Islands at this time. Unless such conditions evolve
in the Virgin Islands among the local population to support such a national identity in light of the many institutional
obstacles that exist against such an evolution, the independence option would be very difficult to achieve. In closing, I
contend that the Virgin islands must review its status, not just within the context of a United States territory, but as
part of a group of non-independent Caribbean territories. The Caribbean has more non-independent territories than
any region of the world. The United Kingdom, as I mentioned earlier, maintains the Netherlands Antilles and also
now Aruba, which split from the Netherlands Antilles grouping. France maintains the overseas departments of
Guadeloupe and Martinique and half of St. Maarten. In the case of the United States, the Virgin Islands and Puerto
Rico have similar relations with a larger country. The associations between these territories and their larger mother
countries allow for varying degrees of autonomy. The French West Indies are the only territories which participate in
national elections, are fully integrated into France, but with a very vocal separatist movement. The levels of
autonomy between the British Crown Colonies and England, and between the Netherlands Antilles and Holland,
however, provide us with an interesting and indeed relevant model of association which we should carefully examine
as we redefine our own political relationship with the United States. A cursory glance indicates that many of these
territories have more autonomy than the Virgin Islands in a number of areas. As an example, the British Crown
Colonies all have their own immigration and customs controls and can regulate employment by creating preferences
for the local population. As a result, the British Virgin Islands has no unemployment to speak of, and exercises a high
level of control of their society. Many of these territories have access in varying degrees to foreign aid and, as in the
case of the Netherlands Antilles, have treaty-signing capability. The Netherlands Antilles, as an illustration, is a
signatory of the International Law of the Sea Treaty and also has an extremely well-developed foreign affairs
component of government. In the Pacific, the Cook Islands operate in a similar fashion vis-a-vis their relationship
with New Zealand. So as we examine elements of our relationship with the US, we should widen our view to develop
an appreciation of the areas of autonomy enjoyed by neighboring non-independent Caribbean territories and non-
independent Pacific territories as well. Therefore, a comprehensive analysis of the political, economic, and social
relationships between the non-independent territories and their respective cosmopolitan countries in the Caribbean and
the Pacific has recently been commissioned that should provide all non-independent territories with information on
other territories similar to their own. This would prove extremely valuable to us as we seek to address the question of
our political status. We in the Virgin Islands have never voted in favor of nor against our current political
arrangement. That is to say we have never exercised our fundamental right under international law to self-
determination. Now that public attention is being steered towards the status question, let us explore it as deeply as we
can so that we can make an informed decision. It could prove to be the most important collective decision we in the
Virgin Islands have ever made. Let me close by saying that I regret to say that the Chairman of the Special
Committee, Sub-committee on Small Territories, Amir Amari, was unable to attend this session. Unfortunately, it is
because of a lack of scheduling that he was unable to be here. I think he would have been able to bring a global view
to the question of the United Nations role and the international role of the status issues with respect to the Virgin
Islands as well as to other territories in the region. We hope to have him in the Virgin Islands at the invitation of the
government in the very near future. Thank you.
Dr. Harrigan Our next speaker is Dr. Rodriguez.
Dr. Rodriguez Thank you, Mr. Moderator. Distinguished guests, Governor, President of the University,
compancros Caribenos. Before my time clock starts ticking, I just would like to make a couple of prefatory remarks
about this morning's session. There was a very interesting exchange, for those of you who weren't here, between my
colleague and compatriot, Luis Davila-Colon and Ambassador Rosenblatt. I would just like to comment briefly on
that and say that I would agree with Ambassador Rosenblatt's reasoned arguments that they evidence indeed a great
deal of good faith and well-intentioned motivation, but also that as a free nation, the United States can deny statehood
to anybody that applies for it. That is intrinsic in the nature of sovereign equality. What the United States cannot
deny to the Virgin Islands, or to anybody, is independence and the right to self- determination. And my distinguished
colleague and friend, Professor Roger Clark, got a bad rap yesterday as an outsider, because he was merely informing
us that international law today has guaranteed what human suffering through the ages has consecrated as a legal right
in civilized society today. Now I also agree with my colleague, Luis Davila, that racism is a very strong and powerful
reason that moves the decisions and the political decisions in the United States. And in the case of Puerto Rico, there
is another element that moves us and that is what I am going to talk about today. My friend, Luis Davila, is the best
example of Puerto Rican nationalism, and you saw that this morning. In fact I think that when we do become
independent we would probably want to appoint him as Ambassador to the United States, and at that point I'm sure he
would be very happy to hire Ambassador Rosenblatt as our attorney in Washington. And if Ambassador Rosenblatt
steps out of line, then he will be fired. Now I don't want to repeat everything that I have written in my written
presentation, but I do want to emphasize the stanzas of a poem by Robert Frost with which I begin my written
remarks. It says that when people go to the shore they always look out to the sea. They seldom look out far and they
never look in deep but when was that ever a bar to any watch they keep. I want to invite you today to come along with
me and take a little look beyond the shore at Puerto Rico. As a Puerto Rican independentista that I am, and a firm
believer and sympathizer with the right to self-determination of peoples and nations, I would not dare dream of
imitating the oppressor by imposing upon you a solution. It is your decision and yours alone to make. And my only
purpose here today is to tell you about the decisions that we have to make and what I think we have to do in Puerto
Rico, for practical reasons. And that is to eliminate the non-option aspect of the option because I don't speak about
non-options; I speak about solutions. Colonialism, which is the problem, is bad, and colonialism is bad because it is
immoral, and it is immoral because it presupposes the superiority of the colonizer over the colonized. And it
presupposes that superiority because it says you are not ready to make the fundamental decisions that affect your life
and your destiny, and we are going to make them for you. Therefore colonialism is anti-egalitarian. And if it is anti-
egalitarian, it is also anti-democratic. And it should come as no surprise that it is also illegal in today's world. Now,
contrary to most Third World nations and to most nations of the world by and large, Puerto Rico still suffers from this
colonial illness. I agree that independence by itself is not a panacea and our first panelist today talked about some of
the downside of independence for a small nation. But yet we still have to ask ourselves, why independence? And this
is the question that I deal with basically and I want to share with you today my thoughts on that with regards to Puerto
Rico. And as I say in my written remarks, it's not unlike asking and answering other basic and fundamental questions
about our lives. Why does one love one's job, one's family? Why does one love freedom? And there is what my
good friend, Paul Leary, has characterized as a kind of a Zen approach to the question. Why not? That's a sensible
emotion. Well then let's research the emotion. Let's make use both of our emotions and of our reason to complement
each other. And let's see what is happening in Puerto Rico, and why after 90 years of colonialism, the Independence
Movement in Puerto Rico is alive and well and living in San Juan. It is a fact of history that Puerto Rico is a nation
and this fact has to be clearly understood. The emergence of a Puerto Rican nationality in the middle part of the 19th
century has to be seen in the context of the Latin American struggle for independence from Spain and therefore, the
collaboration of Puerto Ricans in the Chilean and Venezuelan and Cuban and Mexican struggles for independence
should surprise no one. Their solidarity with the struggle for independence since then with Puerto Rico should also
surprise no one. But this is important because it gives the Puerto Rican struggle for independence the international
character that it has; so Puerto Rico is not only a nation, but it's also a Latin American nation. And not just a Latin
American nation, but a Latin American nation of the Caribbean region. So when the Americans arrived in Puerto Rico
on July 25, 1898, shooting--not holding a conference on the future status of Puerto Rico--in an act of aggression, in
war, in an act of violence, Puerto Ricans had already held at least 25 elections. So the Americans didn't even teach us
democracy. We already knew it. But through Congressional legislation, Puerto Rico was included within the US
tariff system. It was excluded from the application of federal tax laws, and in 1917, contrary to the desire, the express
will of the only representative body elected in Puerto Rico at that time, the House of Delegates, the US Congress
imposed citizenship on Puerto Rico. The House of Delegates had voted unanimously against it. This is part of a
series of attempts to bring Puerto Rico into the American main stream--to Americanize Puerto Rico. Another one
such attempt was mandatory instruction in English in the public schools, all of which failed dismally and
pedagogically as well I should say. So that by the mid-30's the largest single political party in Puerto Rico was the
Liberal Party, which advocated independence. And two years later, a radical fringe of the party called the Populares
Party split off from the Liberal Party under the Leninist slogan of bread, land and liberty and said with a battle cry that
independence is just around the corer. And they won the elections in 1940, laying to rest the contention of some that
the reason Puerto Rico is not independent is because an independence party has never won an election. Well that's not
true. The problem was that Puerto Rico then encountered another problem--the US involvement in the Second World
War, after which the United States was faced with total absence of competition throughout the world, both
economically and politically and with a surplus of capital. And so it went beyond its shores and it didn't have to go
out very far or look in very deep. And there was Puerto Rico, right within the US Tariff System, exempted from
federal taxes, and with a program of local subsidies and further tax rates, which became known as Operation
Bootstrap. From the late 1940s to the late 1960s there was what appeared to be an incredible change, and it was an
incredible economic change in Puerto Rico. But this strategy of Operation Bootstrap, and this is important that we
understand it, is totally unrelated to what Mr. Leibowitz yesterday called the fact, the legal fact of the Commonwealth
in 1952. The legal fact of Commonwealth--and by the way, the fact that something is a legal fact doesn't make it
right--Apartheid is a legal fact in South Africa--so this was not related at all to the economic development strategy in
Puerto Rico. But after the Second World War wave of decolonization, when colonialism became identified with
colonial domination and nationalism reemerged as part of an ideology of liberation, the contradiction between
democracy and colonialism had to be made to seem to disappear, and that is the reason for the historical fact of
Commonwealth. Now, what the US Congress approved in Puerto Rico was not a constitution. What Puerto Ricans
adopted was not a constitution, because the ultimate arbiter of what is in that constitution is the people who self-
determine. Whereas the Puerto Ricans so-called constitution was mutilated by the Congress of the United States and
they eliminated a whole section of what are clearly in line with the social, cultural, and economic human rights in the
spirit of the United Nations, because that was deemed to be too socialistic. Well this legitimation of colonial
domination at the local, metropolitan, and international levels, which also occurred at the United Nations, provided the
justification to further attempt to eliminate separatist sentiment in Puerto Rico. And rampant McCarthyism in the
United States in the mid 50s provided the methodology. In the early 1950s, thousands of members of the Puerto Rican
Independence Movement, and not just the radical nationalists that made some largely symbolic acts of violence in the
Congress of the United States to which Mr. Leibowitz referred to yesterday, but thousands of Independence advocates
in Puerto Rico were arrested, prosecuted, and many of them jailed merely for exercising their civil and political rights.
This flag I'm wearing on my lapel before 1952 was deemed a subversive emblem--the flag of Puerto Rico. Now with
the twisted logic of colonialism, patriots were deemed subversives. Foreign domination was presented as salvation.
Political subjugation was fantasized as partnership. Imposed citizenship came to be regarded as a privilege. Rejection
and suppression of national identity were presented as internationalism. And economic dependency continued to be
billed as visionary interdependence. An additional bead to this litany of twisted logic has recently been added to
misrepresent the use of public funds in Puerto Rico to subsidize presidential primaries for US political parties as a
stalwart protection of Puerto Rican autonomy. Now the Mr. Leibowitz-created Puerto Rican solution certainly has
not worked. We got rid of the Interior Department but we acquired the whole of the federal bureaucracy. The powers
of the federal government, on the contrary, have not been limited, they have grown. He mentioned one case in 1974,
but he failed to mention five additional cases that came afterwards from the US Supreme Court, and he also failed to
mention that when it said that commonwealth was a legal fact, it said that that legal fact provided for Puerto Rico the
same degree of autonomy and independence as any state of the Union. And culminating in 1980 in the case of Harris
v. Rosario, in which the Supreme Court of the United States said that although Puerto Rico has the same degree of
autonomy and independence as any state of the Union, Congress is free to discriminate, validly discriminate, against
Puerto Rico on a rational basis on the basis of the Territorial Clause of the Constitution of the United States. And in
terms of the question of dignidad, well, Puerto Ricans have been at least bright enough not to be confused by those
who would have traded, sold, rented, or hired it. Politically the model has not worked very well either, but
economically it has been a disaster. Operation Bootstrap created an economy based on a small industrial sector which
provides few jobs, and a large service sector, mostly government employees, which does not produce capital. It is an
economy which has depended on periodic waves of stimulated migration, including the brain drain which now appears
to be a monster of its own creation. And finally Puerto Rico's economy has come to be overly dependent on
subsistent welfare transfers, such as the food stamp program with which you are familiarized, and its progeny, for
which over 50% of the Puerto Rican population qualify. Now politically I said the model hasn't worked very well
either and the officially sponsored idolatry of things American, and denigration of things Puerto Rican reached
fruition in the late 1960s when an economically conservative troop of entrepreneurs, under the banner of Pro-
statehood New Progressive Party, defeated the Populares in 1968, 1976, and 1980. They didn't do and they didn't
offer very much that was new. The most recent arguments advanced by the Statehooders has not focused on
economic growth or development for Puerto Rico. Rather the new songs have been variations on the old theme of
equal rights for US citizens with prolonged silences on the counterpoint on what Puerto Rican duties would be. In any
event, citizenship, and this has to be clearly understood, is not an economically productive concept. Now the power of
official heavy-handed political persecution, harassment and propaganda, took its toll over the next generation when
the electoral expression of pro-independence sentiment was reduced to the single digit in Puerto Rico in the
administrative elections. In fact we were the only ones who always made an administrative election plebiscite. The
others always said that status was not an issue. In this context it is not surprising that the Puerto Rican Independence
Party almost disappeared from the political spectrum. But what a distinguished political observer, who would have
been our participant here this morning, my friend, Juan Manuel Garcia-Passalacqua, has said, there has been a
transition of sympathy to independentismo, and the voters of Puerto Rico have returned the Independence Party to its
rightful position as the principal political party on the island. Four years ago, Puerto Rico voters elected its President,
Don Ruben Berrios Martinez as Senator, and turned former Legal Services attorney, Daniel Noriega, to the Senate and
House of Representatives respectively, by an overwhelmingly avalanche of votes. In fact both of them--it's not
surprising about Ruben because Ruben is very well known in Puerto Rico but hardly anybody knew David. So this is
clearly an indication of what we stand for, because we haven't sold out. We have nothing to gain personally from
being an independentista in Puerto Rico. In fact, it costs money to be an independentista in Puerto Rico. But they had
elected them by an overwhelming avalanche of votes, more votes in fact than any other at-large candidate from any of
the other parties in Puerto Rico. So after 90 years of United States rule and 71 years of US citizenship, Puerto Rican
nationalism is not dead and everybody knows this. And of course, neither statehood has happened in the 12 years of
pro-statehood administrations, nor have there been any additional autonomy grants in the 90 years of the status quo.
The reasonable conclusion for this has to be that the power of ultimate decision rests--the sine qua non of self-
determination rests, it does not lie with the government of Puerto Rico, but rests with the metropolis, with the
government of the United States. Evidently the present colonial status for Puerto Rico is not in the interest of Puerto
Rico. However, and contrary to even the Statehooders in Puerto Rico, we are the only ones--the
independentistas--who are concerned about whether it is also good for other people around us, particularly the United
States. And in that case, let me just say that from an economic standpoint, the United States taxpayers are footing an
increasingly expensive bill to maintain Puerto Rico's unremarkable economy artificially afloat. This drainage of US
resources subsidizes powerful multinational corporations that don't contribute a single penny to the US Treasury, that
do not create significant job opportunities, and which do not reinvest in Puerto Rico to allow for Puerto Rico's
economic self-sustenance and balanced interdependence. And all the while the US deficit keeps growing. The growth
for funding of public social programs has been noticeably curtailed. All factors appear to indicate that in the next few
years, social programs will be dramatically cutback. The number of poor and homeless in the United States keeps
growing, and I do echo my colleague, Davila's, invitation this morning--do visit the United States, but also visit the
ghettos, also see the homeless people in the United States, also see the welfare roll, and also see the discrepancy that
continues to arise when American society becomes polarized, increasingly polarized, between the very rich and the
very poor. So the number of poor and homeless keeps growing and the wasteful military budget continues to bloat,
and the only thing that keeps growing in Puerto Rico is economic dependency. The American public continues to be
robbed through the complicity of policy-making intermediaries who subscribe to the "let's do nothing about Puerto
Rico policy" of what I call imperial self-determination. Independence is the only way in which Puerto Rico can obtain
self-sustained growth and balanced economic interdependence. And I urge you to visit other republics as well. You
see, "republic" has nothing magical to it. Republics are like people. Independent nations are like people. There are
good people and bad people. And there are good independent nations and bad independent nations. And some times
they are good and sometimes they are bad, like people. So nations are as good as their people are and if we are good
people, we have nothing to fear from being a nation, from being independent. With all of the constraints of
colonialism, Puerto Rico has produced national painters, actors, and writers of international stature, but Puerto Rico
has also produced more doctors, more lawyers, more technicians, more social workers, more psychologists, more
teachers, more engineers, more administrators, more economists, than any other colony prior to obtaining
independence. What is needed is a clear vision of which direction Puerto Rico will take so that the corresponding
health, legal, social, educational and economic policies can be more precisely tailored to what we determine to be our
national policy agenda. In today's global economy we have to begin to think in global terms. The United States
currently trades more with Asia and less with Europe. An extremely important trend can also be observed from the
growing role of US trade with less-developed countries. Imports from less-developed countries grew from 29% of
total US imports in 1973 to 48% only seven years later. In fact, it is estimated that by the end of this century, the
United States international trade dependence will be approximately 40% of its GNP. Now, Puerto Rico's role cannot
be seen in isolation from the rest of the Caribbean and Latin America either. Given the multiplicity of production
systems in the Caribbean, regional integration, such as the organizations that the first panelist spoke about, have to be
further explored, with Puerto Rico's potential contribution as a sovereign agent in mind. The positive aspects of the
CBI, the Caribbean Basin Initiative--and in spite of it being promoted by the Reagan administration, I think it does
have some positive aspects to it--and of the Lome experience, in which other Third World nations have become
associated with their former colonial rulers in an economic sense, not in a political sense, without relinquishing their
national sovereignty--all of these things have to be reconsidered more carefully and more carefully analyzed in an
attempt at devising new institutional arrangement at the international level. The historical linkages between Puerto
Rico and the Caribbean on the one hand, and the other developed economies, including, of course, the United States
are strong, but we've got to look beyond that shore. We've got to look at other nations and other possibilities as well
that can be made to continue on a different level. Instead of an impoverished and dependent Caribbean, the new
linkages could promote healthy economic interdependence and political good faith consistent with the present world
configuration. This is an excellent opportunity, at least for us in Puerto Rico, to begin our voyage towards
decolonization, economic self-sustenance and balanced interdependence. Only independence can provide the
necessary tools to rationally substitute imports, to promote rational foreign investment, to increase productivity for
consumption and exportation needs, to do better in wealth distribution, including land and real estate, to provide new
jobs, to protect native industries and native jobs from unfair competition and uncontrolled immigration, to promote
national savings and investment. And only independence can lead us away from the status of stagnation, dependency,
and underdevelopment. The end of stagnation and dependency for Puerto Ricans can mean for the United States, new
economic freedom from the subsidization of a dole economy and the birth of new trading partners here in the
Caribbean and in the Western hemisphere. For its part, what the United States has to do is to provide a clear signal to
the people of Puerto Rico of its willingness to help the island to structurally break away from the political and
economic impasse of its present status. One final point. Yesterday, the distinguished panelist, Mr. Froilan Tenorio,
said that in the Marianas they look up to the United States. I think that oftentimes, in the words of the founder of the
Puerto Rican independence struggle, Ramon Emeterio Betances, "the great seem greater to us only because we are on
our knees". What I propose is that we stand up so that we can level, so that we can see eye to eye. When we see
greatness elsewhere, we are only recognizing that which is already within us. Since the nations of the world have
embraced the civilized principle of sovereign equality and self-determination as a peremptory norm of international
law, I think we can now turn our sight back inward, knowing that we have looked out at least a little bit farther, at least
a little bit deeper. And our answer to the initial question of "why independence?" becomes an inescapable, informed,
and sensible emotion. Why not? Thank you.
Dr. Harrigan We've looked at the Eastern Caribbean independent nations. We've looked at Puerto Rico as an
independent nation. We've listened to the United Nations's position on independence. And now we've come home
to the conditions for an independent United States Virgin Islands. Mr. Emanuel.
Mr. Gene Emanuel Thank you very much. Distinguished moderator, my distinguished colleagues of the panel,
distinguished guests in the audience, my fellow Virgin Islands nationalists and Africanists, the working people of the
Virgin Islands, and all those who share with us our common history and our common destiny--I want to begin first by
pointing out some very burning issues about the nature of this conference before I actually go into my prepared
remarks. I believe that they need to be said, because we are now right down to action time and there should be no
mistake whatsoever that in this process we are now embarking upon another level. And our first concern is the venue
of this conference and its make-up. I believe that it is unjust and continues a cycle of exploitation of the mass of our
population to have a conference which does not include all of the major figures who are in fact the leaders of this
community. It is an error not to ensure that the major positions on status in these islands are not equally represented
on all panels, all committees, and all places where decisions are going to be made. And we also believe that it
continues this cycle of pitting one island against another, to hold the conference only on this site when we have three
islands whose commitment to change and whose need for a different way of life than the present should be shared
equally. Furthermore, we say that decisions of this conference will not reach the people that they need to reach. We
intend to carry out that role of taking this debate to the working people, to the Black majority of these islands, and to
those who need to know bit-by-bit, step-by-step, question-by- question, answer-by-answer what is meant by this great
change that is being proposed to us today. And I say to you that they do not--our students do not, their teachers do
not, their parents do not--nobody knows what we're talking about. It is time we stop playing around and get down to
the business of educating each and every member of this community before we face a great catastrophe.
Independence is not something to be negotiated. I have never heard, read, or researched of any place in the world
where independence has been negotiated and successfully sustained, without seriously damaging the people, their
direction, and warping their destiny. You must remember that the Declaration of the United Nations did not say that
people could choose any status, did not say that they could choose not to face the question of their destiny. It said that
the right to self-determination, no matter the inadequacy of the political, economic, social, or educational
preparedness, should never serve as a pretext for delaying independence. Let us understand that very clearly. It points
out that there cannot be any substitute for independence. We must be clear when we teach our people that they know
that there are only two real options--sovereignty or continued domination. Those are the two options. All of the
others are merely continued domination, exploitation, in fact, merely territories called by other names.
Take a careful look at the difference between compact and commonwealth. Take a look at the practice; take a look
at the testimony given here. We have been told in essence that the differences are merely glossing over; that you
cannot have control of those vital areas of your economy. Although you may have internal self-government, your
economy carries along the same line that it's been going along before. I present to you that there are in fact two
choices continued subjugation or freedom in independence. This is not merely a question of emotion, because in the
Virgin Islands when you raise questions germane to people's destiny, you are always answered, "oh they're going to
give that emotional answer. That's pure emotion they're talking about". But we say when you look at the history of
the Virgin Islands, you will find a history of a people who did not ask to come to the Virgin Islands. They didn't ask
to been enslaved. They did not ask to be continued in bondage by low wages. They did not ask to be purchased by
the United States. And when they were purchased, they weren't even treated as human beings. They were left
citizens with no country. Let us understand that we are talking about a history of injustices that has never been
redressed, never. Yet still we pay tribute to all those who suffered. We send monies to missionaries. We send monies
to countries in distress. We ignore our own insides. We keep trying to grow from the outside in. It's time for this
population to start growing from the inside out.
Believe me, when we look at the historical condition of the Virgin Islands, we see one startling issue that clearly
frames these discussions today. When the Virgin Islands was being purchased in 1917, it was not an isolated act by
the United States. Puerto Rico had already been secured. Haiti was invaded in 1913. The Dominican Republic was
also invaded, and soon after Costa Rica and Nicaragua were invaded. It was part of American expansionism. Today,
as we sit here, we are sure to understand that once again as we discuss status, some of the same changes are going on
in this region. Panama will go soon. Guantanamo Bay will no longer be a thorn in the side of the Cuban people. It is
not clear that United States will replace those bases in Puerto Rico, because the strength of the Puerto Rican people
and their movement for freedom is quite well known. Again the issue in the Virgin Islands is not an issue of their
making. The issues are continued from American expansionisms, the big stick, and the Monroe Doctrine and the
Caribbean Sea belong to nobody but we. Believe me, these are issues that should be on the front-burner of Virgin
Islands political life, because no longer will there be a big base theory in the Caribbean, but smaller mobile bases will
be developed throughout the Caribbean including the Virgin Islands. So that this process of status debate and
discussion must be a debate and discussion which carries us into the reality of our existence in the region and
examines very clearly the colonial position of the United States towards us, towards the islands and people
surrounding us.
We are aware that much of this is a problem of our own making. We are aware that many of us who talk about
change, and status, and independence, and development cannot agree among ourselves. We are aware that we do not
teach our children that they have a future, and that they are an individual human being in the world capable of no
limits except that which is given to them by the Father above. We do not imbue them with the spirit of independence.
We do not imbue them with the spirit of self-development. We imbue them with dependency. We imbue them with
the panaceas and utopias that are beamed to us on the television, and information systems that are pumped to us from
North America for our consumption. We do not make the effort, ourselves as parents, as teachers, as a government, to
prepare our youths, our young people for any kind of positive decision. As a matter of fact, we make sure that we
don't because we are afraid of the decisions that they would make. We're afraid of them; we're afraid of our youth in
this territory. We, those who have the responsibility for development, neglect the seeds of our land, yet still we want
to discuss the question where do we go.
Believe me, where are we going? Our infrastructure is crumbling. The cost of living is escalating to heights that
are going to trap each and every one of us into a greater and tighter circle of poverty. Apartments in the town of
Christiansted are now reputedly at $1,000 per month for one bedroom. What is the average salary in the tourist
industry? And if tourism is the major industry and is key to our development, that's where most of the jobs are going
to come from. What is going to be the average salary of the people as the jobs expand? Have we in fact decided to
turn our backs on the majority of the people in our society? People always ask how you can get along in
independence, but I say to you, how are we going to get along as a Territory? Tell us now. The onus is not on us, it's
on you. Because we know from the mathematics that they have taught us that there is no way in the world that the
population of these islands is going to survive if the thrust of development is tourism and the labor relations and the
wage levels of those industries remain as they are. What you're talking about is disenfranchising the majority of our
people and continuing what has been a very, very, successful program of eradication and removal of the people of
these islands. That is what the question of status is all about. You must remember that St. Croix alone had 100,000
people, most of them of the Black majority--where have those people gone? At one time, 95% of these islands again
were a Black majority--where have those people gone? We ask the question. They have gone the same way our
ancestors went. Our ancestors who lie at the bottom of the Atlantic whom nobody talks about. Yet still we weep for
everyone else, but we can't weep for ourselves, but we can't weep for ourselves.
But let's get down to some basic ideas that some people constantly talk about. They say, well if you're for
independence, what's your program of independence? How are you going to support yourselves? What's going to
happen to me? Everybody is going to run away. They tried that during the campaign against Adelbert Bryan.
Everybody is going to run away. The cruise ships are going to stop coming. People are going to take up and flee.
But I see none of the people going anywhere. As a matter of fact I see a lot of them right here in this room. Nobody is
going anywhere. Nobody is going anywhere because the advantages of living in these islands far outweigh the
disadvantages for most of the people. They're not going any place; they love it here. And if they are willing to fight
for these islands, if they are willing to organize, if they are willing to develop themselves and to unify themselves then
the obligation is upon us, those of us who have suffered in this economy and suffered in these islands, to unify
ourselves, to organize ourselves and to go unceasingly forward to ensure that our interest and our objectives become
paramount in any struggle.
But our program for independence is sound, very sound. We base our program for independence upon what
Adelbert Bryan has called homesteading or land reform. We believe that it has been successful before, that many of
the people who have property in these islands have them as a result of homesteading in the past. We believe that any
just society, no matter what you call it, must have an immediate program of land reform because there is nothing more
vital to solving the problems of our people than land and a home. And we see no way under the present
administration, with the present cost of living and the lack of a lid on anybody in this society, the rampant
development, we see no way that that is going to be achieved given the present circumstance. We believe that there
ought to be increased trade and technical relationships with the Caribbean. We believe that we should establish major
commercial fisheries with headquarters in St. Croix. We believe that all of the investigative work demonstrates that is
a successful industry. We believe that light assembly industries for small objects, all the pens, all the pencils we buy,
all the school equipment, furniture--we believe that these are viable. We believe that a clothing industry specializing
in fabric design and other high-skilled industries are very essential and very profitable. And most of all we believe in
professional services for export, because we know that one of the great resources that we have in the Caribbean are the
Caribbean people. And these are services that are tremendously needed. We continue to spend great sums of money
importing technical expertise. As a matter of fact, this conference itself is an indication of that. But we need to
develop ourselves our professional services, not only for ourselves but for export to our sister countries. Poultry and
dairy--we get milk from St. Croix, whole, fresh milk, but yet still that milk is challenged on the shelves by
recombined. powdered milk and nobody says anything. Nobody. As a matter of fact, we got some of our children
thinking that recombined powder milk is better than the natural milk. We can take another dairy. We can take
another natural dairy. We can take poultry farms. The chicken that we buy here would probably serve to fund the
other high school that's needed right here in St. Thomas, given the conditions that we have right here at Charlotte
Amalie--and don't imagine Eudora Kean. Ladies and gentlemen we can also process agricultural products. Last
Christmastime, Dominica, one of our sister islands, had a tremendous tragedy, because at Christmastime we have
been led to consume and consume and many of the farmers wait until Christmastime to turn in their bananas. And of
course everybody was turning in bananas and there were bananas all over Dominica, lined all over the place. And
certainly by buying these bananas at cost, producing banana juice and other products from it, I think you can certainly
see that there is a great need for that type of industry in an independent Virgin Islands.
As I said, the venue and the limitations that are placed upon us really do not serve us well, but I hope that you are
fully enough alerted that the campaign for self-determination, for sovereignty, and for the full development of the
Virgin Islands' people is not going to be a campaign that you are going to be able to ignore. And we hope that most of
our people understand that in this drive we need unity and that we need to unify around those things that are possible
for our people that would uplift us, take us out of this endless cycle of colonialization, exploitation, and place us along
the road to human dignity, where we can respectfully take our place along with those people of the world who have
already struggled and won their own freedom and independence. Thank you very much.
Dr. Harrigan We now follow the normal procedure by which the panelists will ask questions of each other. Dr.
Warner, would you like to begin?
Dr. Warner This isn't really a question to any one of the other panelists. It is rather a remark, perhaps a
suggestion and it stems somewhat from what Mr. Emanuel said a while ago. And it is the question of preparing
people or educating people for a change of political status. That is not a process which should be taken lightly. I was
involved in a change of political status myself and I'm involved in another one presently. In the first instance what
was done, you have to create perhaps a non-partisan national committee. And within that you should have each and
every single grouping within these islands on that committee--can't afford not to. Make a list of all that's around you
and have someone on that body. And you must give them the options of status. And also you must take that
committee to the schools like we did in St. Kitts and also in Dominica. You must take it to the schools, take it to the
public. You must have public forums. You should have call-in programs on the radio. It's an on-going, continuous
process, so that when people are given the option of choosing something, they should know what they are choosing.
This is an exercise in academia--what we are doing here. This is the beginning of it. But the greater exercise, is when
the proponents of change of status leave this room and go out into the byways and the highways, that is where you
would have to begin to spread the word. The other thing I would comment on is again what Emanuel said, that is the
question of land ownership or redistribution or whatever. The ownership or the redistribution of land is not something
to be taken lightly. I lived in a country in which it was done and the repercussions are very, very severe. One thing it
does if nothing else, it scares away outsiders. It has the potential of people saying, well if that government can take
away John Doe's estate, suppose I happen to build a hotel or a condominium and they don't like me in the next two
years? They take away mine too. It is a fear. You generate a fear in people that the government can do what it wishes
because it has to meet a political end. But that does not exclude the fact that the redistribution or the reallocation of
arable land is a possibility, but the process in getting about it is not by expropriating or nationalizing somebody's
property. It has serious international and regional repercussions. And finally on the question of indigenous, of
creating indigenous goods and services--if you were to travel down the Eastern Caribbean, it is very apparent that
independence has forced us to look inwards. Inwards in the sense that we are forced to grow chicken. Most of the
countries no longer import chicken. Most of the countries no longer import eggs. Most of them no longer import
milk. I'm talking about boxed milk, not tin milk. Certain other countries are at a stage where they no longer import
vegetables like carrots. Some may put a ban on tomatoes for six months. So you tend to generate something within
the territory because you know for a fact, the importation of goods, especially food, has a disastrous effect on your
pocketbook. And all of us must eat no matter what you say. And once you can control the importation of vital things
like food for example, then you begin to see the real essence and meaning of independence which means you can do it
because you have to do it
Dr. Harrigan I would like the panelists to be as brief as possible because I would like to give as much time as
possible to the audience for questions. I believe that is a very important part of the conference. Dr. Corbin.
Dr. Corbin Thank you, Dr. Harrigan. I will be brief. Several issues came up in conversations as well as earlier
in the conference and I regret that I wasn't here for yesterday's proceedings. The land ownership question I believe
was discussed relative to the other options available such as free association, commonwealth, which speaks to the
inconsistency of the relation ships that exist between the United States and its territories and commonwealths. For
example, I believe the question came up of the Northern Marianas where there is a 20/25 year land owner ship
restriction for those who are of Northern Marianas descent If anything like that was discussed say in our community,
the first question that would come up would be that it was unconstitutional. But of course the question then remains,
if we can't have it then how come they have it? So these inconsistencies are very clear and they dominate throughout.
And another area such as that relates to voter residency requirements where there is currently now, I understand, there
is a bill in the Virgin Islands Legislature to expand the thirty-day requirement to a ninety-day requirement, which
some would consider to be reasonable. In some cases, again the question is determined by what is constitutional and
what is not under the US Constitution and it probably evokes more questions than answers. And I'm sure the
international legal experts or perhaps the US Constitutional experts would have a field day with that one. I'm sure
they're already waiting in the wings to do that. But that relates to the fact that other territories under the US
jurisdiction, American Samoa, for example, has a two-year voter residency requirement. But when this issue is
discussed, we somehow don't get that information about what's happening in the other territories and what their
relationships are. And all those relationships have a very clear impact on how we proceed and the extent to which we
can proceed, if in fact the view or the interest is there to proceed. A third area is the involvement of natural resources.
The ownership of natural resources--areas such as exclusive economic zone, whereby in 1983 President Reagan
basically, as a result of the Law of the Sea Treaty which Mr. Reagan was not very interested in agreeing with, decided
to declare a 200-mile economic zone. They included the US territories in that. They didn't ask us but they did. So
the federal government now controls the 200-mile exclusive economic zone. However, if you look at the Northern
Marianas Covenant, and also in their Constitution, it is clear that there is an inconsistency again, because the Northern
Marianas declares that in that economic zone, the jurisdiction is held within the government of the Northern Mariana
Islands. Let me digress a bit relative to the question of voter residency and land ownership. In the Northern Mariana
Islands, for example, that particular provision where land ownership was restricted to the indigenous population or
their descendants for a period of time, that is currently being challenged in the US courts by several American citizens
who reside in the Northern Marianas and are of non-Northern Marianas descent, and they are indeed contesting that
particular provision. And of course it would be very interesting to see what the outcome would be and to the extent to
which that relationship is covered under international law, which takes precedence over what the result would be in
the US Court system. Those are the areas that I wanted to comment on.
Mr. Emanuel I'll pass in order to receive the questions from the audience.
Dr. Rodriguez All I would like to say is just a brief comment because I'm interested in audience participation
and reaction and your thoughts on these issues. I cannot stress enough the importance of the choice that faces Virgin
Islanders. Yesterday one of the panelists said that eight months of consideration should be enough because the
majority of the voters wouldn't spend too much time considering the options of independence or statehood. This is
serious. This is serious. It is not a matter in which you can simply sweep things under the rug that will eventually
come back to haunt you. This is a subject matter that requires not just this conference, which as has been pointed out,
is at a purely academic level and purely the frosting on the cake. These are the legal issues. There's a lot more to it.
There are anthropological issues; there are sociological issues. There are very serious economic issues involved.
There are historical questions. These are all areas of human knowledge and of human endeavor that need to be
explored further and deeply. And you've got the resources. You've got them right here, and if you don't have them
right here, for heaven's sakes, bring them in. But don't limit yourselves to bringing in the Americanos. There are
others. There's a whole world out there. There's a whole different set of perspectives in the world. Don't choose one
because you don't know the others. Make sure that you know what is out there and then with informed consent, you
can decide. So I really want to congratulate you for beginning these efforts. But don't stop now.
Dr. Harrigan And now ladies and gentlemen, we've come to question time.
Dr. Harrigan I'd like to say one or two words before we depart. Unlike Dr. Clark who is a New Zealander and
called himself an outsider yesterday, I am only a half outsider, since the Virgin Islands to which I belong carried that
title since 1672. The rest of the Virgin Islands only got the name in 1917, so I can claim to be a half outsider, not a
full one. In a manner of speaking, we have now surveyed the status landscape, and in spite of the terminology being
in some instances confused and confusing, this glimpse--and it is only a glimpse--of the terrain should enable us after
much hard thinking to decide where we want to build. In passing, it is interesting to note that the Virgin Islands form
a single economic, social, linguistic, ethnological unit, as two distinct political entities both occupying similar
positions vis-a-vis the metropole. I, for several years, have served on the British side as Government Secretary, Senior
Administrative Officer under the Governor, a member of the Executive and Administrative Councils, and on occasion
as the Governor's Deputy. I, therefore, not only got textbook knowledge but practical experience of the Constitutional
system. The Executive Council of the British Virgin Islands is the principal instrument of policy; that is, the Governor
is obliged to carry out the decisions of the Executive council, whatever his own views may be. And that Council is
composed of elected local people. We control immigration. We can legally deport an Englishman, although
theoretically at least we are citizens of the same country. I have personally escorted an English Naval Officer who
was decorated by the Queen for valor and put him on an airplane here in St. Thomas and sent him back to England.
No foreigner can work in the British Virgin Islands without a work permit and no person can own or lease land except
under licence. If the terms of that licence are not fulfilled, the land is subject to forfeiture by the government. We are
talking about a little country of 58 square miles and 12,000 people. And these safeguards are in place to ensure the
social, cultural and economic future of the 9,000 or so indigenous people on that 58 square miles. And I get the
feeling that here on the American side, the cry is basically for the kind of autonomy that will provide safeguards of
this kind for the indigenous inhabitants of these islands. Attorney Rigau has spoken about deciding on what is
specifically desired before proceeding. We can surely use the experience of other countries as part of our negotiating
strategies and advice has not been lacking, particularly from our Caribbean neighbors. Unlike you, we have a single
option--independence or the status quo; and some of us on the British side are attempting to work out a new
innovative alternative which will suit our own peculiar needs, if and when we opt to move in that direction. Even now
we are proposing the adaptation of certain American forms to be grafted to our Westminster model. This is a point
that Lord Caradon, former Governor of Jamaica, when a member of United Nations, made in relation to certain of the
new Caribbean and African nations. Attorney Rosenblatt has pointed out the value of innovative and imaginative
thinking as useful tools in your quest for greater autonomy. The time is long past when the academically interested
should be seeking solutions for the future for the remnants of empire. It is now time for us whose future is involved to
take the lead in determining what that future is to be. I don't tell stories for amusement, but there is one that I would
like to pass on, and that is a story of two people getting married and prior to their marriage, they wanted to know
whether they could have children. So the lady went to the doctor and came back and said that all is well; the doctor
said there's no reason why she couldn't have a child. So the gentleman took his turn and he was gone all day. And
the night when he came back, he had on a new suit, new shoes, necktie and new hat--as we say here, dressed to the
nines and tens. And she said where have you been all day? He said, in town. Did you go to the doctor? Yes, I went
to the doctor. And what did he tell you? Don't you see how I'm dressed? He told me I was "important" (actually
"impotent"). The question which is before us today is whether we are going to the "important" or "impotent" in this
struggle for autonomy in these islands. And we must remember the words of Montaigne: no wind blows in favor of a
ship that has no port of destination. It is only left for me to thank the panel for their contribution, to thank you for
your attention, and to thank Dr. Leary for inviting me to be a participant in this very important meeting. I thank you.
Panel V: ov T
The
FUTURE 62
POLITICAL STATUS
of the U.S. Virgin Islands
Panelists:
Governor Alexander Farrelly
Former Governor Ralph M. Paiewonsky
Senate President Iver Stridiron
Congressional Delegate Ron DeLugo
Moderator: Dr. Orville Kean, University of the Virgin Islands
Dr. Kean Good evening, ladies and gentlemen. We are in the ninth inning of this conference. The bases are
loaded, and we have the heavy hitters in the dugout. Lest any of you infer from my metaphor of baseball (as one
infers from reading tea leaves, palms or chicken bones), that there is a preference on my part regarding the ultimate
status of the U.S. Virgin Islands, I would like to remind you that Castro likes baseball more than Ronnie does.
Ladies and gentlemen, this conference has indicated quite clearly that the United States Virgin Islands has a number
of options available regarding its future status. I think a number of us, and I use "us" generically, might have come to
this conference with some notion that a particular option has been closed out. At this point in the conference we
recognize that the future status of these islands is a very, very complicated subject and that there needs to be lots more
deliberation and more information on the subject. And so tonight, we're going to ask a number of people whom we
all know, and who need no introduction, to share with us their views on the future political status of the Virgin Islands.
These gentlemen need no introduction, but protocol requires it; so I will introduce his Excellency, Alexander A.
Farrelly, Governor of the Virgin Islands; former Governor of the Virgin Islands and Chairman of the Board of
Trustees of this great University of the Virgin Islands, Ralph M. Paiewonsky; the Honorable Iver Stridiron, the Senate
President, who is on his way and will join us shortly; and someone whose name is not on our program, but someone
who is a genuine clean-up hitter, the Honorable Ron De Lugo, our Delegate to Congress.
We proceed as follows: each of our panelists will be asked to share their views with us, to talk about the future
political status of the Virgin Islands, by making a fifteen-minute presentation. I have a watch without a minute hand,
so I guess that means plus or minus a minute. Then there will be a period where the panelists will share their views
with one another-- comment, express points, and counterpoints; and then we will open the proceedings to the public
for the question and answer period. We are scheduled to be completed by 9:30, but I'm sure that if we have a good
discussion going, we might go until 9:35. We will start with Governor Farrelly.
Governor Farrelly Thank you, Dr. Kean. My colleagues on the panel, Governor Paiewonsky, Congressman De
Lugo, ladies and gentlemen. It is indeed a pleasure to be here tonight for this closing session of what I understand has
been a provocative conference on the future political status of the US Virgin Is lands. Having just returned from
Washington yesterday, where I testified along with my fellow territorial governors before Congressman De Lugo's
Subcommittee on Insular Affairs, the issue of political status developments in our sister territory of Guam and the
implications for the Virgin Islands were discussed at considerable length. A major question posed by the
Congressmen was how the US Virgin Islands, as the remaining US territory yet to address its political status future,
was going to proceed in light of the fact that Guam had completed its draft commonwealth act, that was soon to be
submitted to the Congress for consideration. The comparison made by the Congressional Committee between the
political status of the Virgin Islands and that of Guam is significant. Guam, as you know, is an unincorporated
territory as we are and is the exact constitutional counterpart of our Islands in the Pacific. And many federal laws
extending self- government to the Virgin Islands also included the territory of Guam. For example, both the right to
write a local constitution and the right to elect our own governor were written specifically for both territories. Thus a
quick historical analysis of how Guam proceeded might be in order. Guam began the review of their political status
process in 1973 with the creation of a Political Status Commission, formed a second status commission in 1975, and
held the first status plebiscite in 1976. A second plebiscite in Guam was held in 1982, and a Guam Commission on
Self-Determination was created by the Governor of Guam, Governor Joe Ada, which drafted a draft commonwealth
act, soon to be submitted to Congress, and designed to define establish their new relationship with the United States.
We, in a somewhat different approach, began a review of our political relationship through the establishment of a first
Constitutional Convention in 1964 as a mechanism to modify the 1954 Revised Organic Act by creating a second
Revised Organic Act. Many of the recommendations of that pro posed Act were subsequently enacted into law by the
Congress. Further discussion on political development was held in the second Constitutional Convention of 1971; the
third Constitutional Convention of 1978, which I chaired; and the fourth Constitutional Convention of 1980, which I
served as General Counsel. Such activity in the Virgin Islands and similar events in Guam and the Pacific Trust
Territories encouraged President Carter in 1980 to announce a comprehensive review of US territories and their
relationships to the United States Government. This policy established a framework for the Virgin Islands to
undertake its own review of the political status relationship, and subsequently the Virgin Islands Status Commission
was formed. It conducted a series of public hearings and it issued a comprehensive report analyzing the political
status options available for the Virgin Islands. After a 1982 referendum, where the voters chose to address the
political status of the territory before writing a constitution, the Legislative Select Committee on Status and Federal
Relations was created in 1984 which also held public debates and completed a report on the political status options.
From the international perspective, the political, economic, and social relationships of the Virgin Islands and the other
territories under United Nations review are examined annually under the terms of Article 73e of the United Nations
Charter. This examination is conducted with the cooperation and participation of the federal government as the
administering authority of the Virgin Islands, Guam, and American Samoa, under international law. As a result of this
United Nations oversight, a series of resolutions have been adopted, dating back to 1950, on the political status of the
Virgin Islands, with resolutions focusing in recent years on the need to develop an awareness among the people of the
meaning of the various available options. The United Nations also addresses a number of areas of autonomy available
to the Virgin Islands under our current relationship with the United States, or which could be embodied in a future
status that the people of the territory may choose. Concentration of these areas of autonomy is crucial to the future
political status of the Virgin Islands for the good reason that it is not as important what we call our political status, as
it is important what the areas of autonomy are within that status. My administration is currently studying a number of
such areas of autonomy to identify the necessary conditions for assuming certain powers currently under the
jurisdiction of the federal government. For example, we are looking closely at the potential for assuming the
responsibilities for customs and immigration in the territory as an important area which we feel should be within the
jurisdiction of the Virgin Islands government. And to see the impact, simply take a trip by airplane into the Eastern
Caribbean and see how they, themselves, control their customs and immigration. Early studies indicate that a number
of other US territories and commonwealths maintain varying degrees of control in the customs and immigration areas.
And many non-US territories closer to home in the Caribbean have maintained these powers for years. The
experience, then, of not only the US territories, but also the six Crown Colonies of Britain in the Caribbean, the
Overseas Department of France in our region, and the Netherlands Antilles are all important and very relevant to our
approach to an analysis of the potential for increased autonomy in a number of functional areas. Another such
functional area is international affairs. The Virgin Islands currently has a vibrant and growing role with a number of
regional institutions. We are associate members of the Economic Commission for Latin America and the Caribbean.
We currently serve as Vice Chair of the Caribbean Development and Cooperation Committee. Both are United
Nations affiliated organizations. We will also soon be joining a third United Nations organization, the Caribbean
Council for Science and Technology, to complement our member ship in the Latin American Institute for Social and
Economic Planning. My administration is also committed to participation in other regional institutions, including the
Caribbean Community, CARICOM, and the Organization of Eastern Caribbean States. In 1987 one of my assistants,
Dr. Carlyle Corbin, attended the CARICOM heads of government meeting in St. Lucia, marking the first time since
1975 that the Virgin Islands had been represented at a CARICOM meeting. In November of last year I joined my
fellow heads of government at the meeting of the authority of the Organization of Eastern Caribbean States, OECS,
where I discussed with my colleagues from the Eastern Caribbean, a potential role for the Virgin Islands in programs
and activities of that organization. All of these international organizations' activities, of course, are subject to the
advice and consent doctrine of the US Department of State, and the successes we have had so far in obtaining federal
government concurrence is indeed encouraging. Any political status changes being contemplated, then, should
include such a role for the territory in international affairs. Yet another functional area to be considered during our
status deliberations is the area of natural resources and jurisdictional questions emanating from control of minerals
and other economic and ecological considerations. In closing it is important, it seems to me, to focus on these and
other functional areas of the current and future political relationship of the Virgin Islands to the United States, so that
we are as specific as possible as to what we're going to be pursuing with the federal government. As current
legislation for the creation of a new Virgin Islands Status Commission and a referendum election on status is presently
being debated, it is clear that we in the Virgin Islands, like our counterparts in the Pacific, are genuinely interested in
and will pursue the goal of full self-government for the benefit of all of the people of the US Virgin Islands. I
appreciate your kind attention.
Dr. Kean Thank you very much, Governor Farrelly, for sharing with us the functional areas which you feel need
attention as we deal with our future political status. I would like to acknowledge, of course, our Senate President, the
Honorable Iver Stridiron. We will now hear from former Governor of the Virgin Islands and the Chairman of the
Board of Trustees, Ralph M. Paiewonsky..
Governor Paiewonsky Governor Farrelly, Congressman De Lugo, President of the Legislature, Mr. Stridiron,
Mr. Chairman, ladies and gentlemen. I'm delighted to be here and I was here now for two days attending all of the
sessions and I want to congratulate the committee and Dr. Paul Leary for the wonderful job that they've done here in
bringing this matter to the University of the Virgin Islands and bringing this matter to the people of the Virgin Islands.
In order that there be no misunderstanding, let me at the outset state my position on the important questions based on
my personal experiences as a native Virgin Islander actively involved in the political, economic and social life of the
Virgin Islands for a period of approximately 58 years, from 1930 to date. I mentioned this because I want you to
know of my involvement. I served ten years, five terms--two years each--from '36 to '46 in the Legislature, then
known as the Colonial Council of St. Thomas and St. John. I was also a member of the Progressive Guide and later
with the Democratic Party as National Democratic Committeeman for 20 years, 1940-1960. I served as your
Democratic appointed Governor for approximately eight years from 1961-1969--eight busy and eventful years for the
Virgin Islands. I have from 1969 to date been an active participating citizen serving on many committees with the
College, now University, of the Virgin Islands as its Chairman of Board of Trustees. I mention this background
merely to show that I've been active in the political arena and have been participating in the economic, social and
cultural life of the Virgin Islands for almost, as I said, 58 years. Therefore, the views I'm expressing here this evening
are my personal views in observation and opinion gathered from my work and contact here in the Virgin Islands and
from experiences in the United States. While I was Governor I also acted as your delegate to Congress, because we
had no congressman then, no delegate. I had to appear before the various congressional committees and I want to tell
you that my personal contact with the members of Congress, both in the House of Representatives and the Senate have
been very fruitful and beneficial for the people of the Virgin Islands. I have spoken several times on the question of
the Virgin Islands' relationship with the United States, therefore, my views are fairly well known to members of the
committee. My position on political status is for the Virgin Islands to continue to operate under the Organic Acts and
other federal laws now applicable to the Virgin Islands and to maintain its close relationship with the United States as
a territory of the United States, with all the benefits we are enjoying at the present, and to negotiate a compact
agreement until we can develop as a result of dialogue with the Congress of the United States and the Executive
Branch, a closer and more meaningful relationship with additional rights and benefits. Now let me explain something
here. As a result of attending the various meetings here, I was told and I think most of the members here were told,
that there are really only two options for the people of the Virgin Islands--one, independence and the other, statehood.
My personal opinion is I don't think we are prepared yet for either one. I think we first have to look very deeply and
study the question of what's involved in each one, and the question I would ask is, would we be better off than we are
at the present time under the present status with certain modifications and changes than we would be under
independence or even statehood? I think it would take many, many years yet before I think we'd be fully prepared for
statehood. I'm not ruling that option out, but I'm certainly ruling out independence as far as my personal opinion is
concerned. Over the 71 years since the transfer of sovereignty from Denmark to the United States, we have developed
a status relationship with the passage of laws by Congress and special amendments of other federal laws, all beneficial
to the well-being of the inhabitants of the Virgin Is lands. These laws carry special, major political and economic
benefits that we must certainly evaluate and consider when making the decision on the question of status. First and
foremost, we are citizens of the United States and as such we are guaranteed our freedom and civil rights under the
protection of the United States Constitution. We have heard during these hearings and even before these, a few voices
advocating independence. However, I personally believe that the vast majority of Virgin Islanders prefer a continuing
relationship and a closer association with the United States. What greater independence can we conceivably achieve
or obtain, other than being a part of the greatest independent democracy on the face of this earth and being American
citizens with the fullest protection of our liberties and human rights by the United States Constitution? I am sure that
most of our Eastern Caribbean independent nations would be willing to share in the prosperity of the United States, as
we are doing, if they had the choice rather than living under difficult circumstances brought about by their lack of
resources and their poverty. This is why so many of their citizens risk their lives seeking sanctuary in the United
States for political and economic reasons. And that is why so many of their citizens flocked to the US Virgin Islands
in recent years to escape from their poverty. However, this does not mean that within our association as a part of the
United States family, we cannot continue to strive and explore possibilities and arrangements to better ourselves and
to develop new ideas and to promote a greater degree of local self-government and to encourage economic
development and self- reliance as we did in the 60s. During the last 71 years, from 1917 to 1988, under American
sovereignty, we have progressed as a result of the federal laws and programs. Let me list a few for your consideration
and there are many many more for us to consider--federal laws that maybe we should have amended to be made
applicable to the Virgin Islands and other laws that we can propose. I know that there are many areas that we can do
this and I'm pretty sure we'll be successful in our endeavor in a dialogue with the members of Congress. But let me
list a few for your consideration. The Organic Act of 1936 established a framework for civilian government under
universal suffrage. Prior to that from, 1917 until 1936, we operated under the old colonial law, which was very
restrictive in a sense. The next item would be the amendment in 1939 to provide for the exemption of the Jones Act to
the Virgin Islands, known as the Coast-Wise Laws. Third, the Revised Organic Act of 1954 with its beneficial
economic provisions including the provisions for income taxes from all sources and the excise tax on rum to be paid
into the Virgin Islands treasury. Total income taxes, both corporate and individual, paid by Virgin Islanders as a result
of their business activities in these Virgin Islands, run approximately $100 million yearly, perhaps it's more today.
The rum excise taxes average approximately $30 million yearly. At one time it was up to $37 million. Also the use of
a percentage of foreign materials in manufactured VI products admitted duty free into the United States. In other
words we can create industries here and use a percentage of foreign materials, not to exceed 50% in most items, and in
the cases of watch assembly, I think it runs as high as 70%. The Elected Governor's Act, giving the Virgin Islands the
right to elect its own governor. Five, the Delegate Act establishing a voice in the Congress of the United States for the
people of the Virgin Islands. Next one, the use of currency--and people mightn't consider this as very important--and
the US taking care of the Virgin Islands' foreign balance of trade. The defense by the US of the Virgin
Islands--security provided by the United States, therefore no need to maintain expensive armed forces. Next the
commerce and special tourist allowances provided for by the US under federal law. And I would say here that I was
instrumental during my governorship in doing a lot of things, especially in protecting Section 301 under which we use
foreign materials, and also many other acts that we were able to get certain allowances, especially the tourist
allowances whereas if it's $100 for foreign areas, the Virgin Islands gets $200. If it's $400 today for foreign, we get
$800. So you see we have benefited and amended some of these laws by just a proper dialogue with Congress and I'm
positive that with Governor Farrelly now in position here, that he will be able to obtain many of the things that people
are very much concerned about and get a greater degree of autonomy. But I think we must be very sensible about
how we go about this and we must present facts in a very calm and forceful manner. Let me continue. In addition to
that, as I said before we have been citizens by an act of Congress in 1927, we have federal minimum wage and labor
which have raised the standards of living, which I understand might be amended again. Communication with the
federal FAA, federal funds contributed toward the operation of the airport. Immigration and federal enforcement by
the US Government is one of the considerations that we feel that should be directly under the Virgin Islands
administration. And I'm pretty sure that Governor Farrelly, on my right here, will be forceful in getting this for the
people of the Virgin Islands. Another thing, the government is running the post office which is very important. The
federal government operates it at no cost to the Virgin Islands. The cost is paid for by the United States. Then we
have Social Security, which has been something that had been started under the Roosevelt administration and I think
we all, especially many of our older folks, are all benefiting today from that. Then we have Medicare and Medicaid
and other welfare programs. Then we have the Armed Services benefits to the Virgin Islands veterans' education and
hospitalization and other benefits. Then we have the National Guard paid for by the United States. Then we have the
food stamp program benefiting to our citizens and paid for by the United States. Then we have the surplus food
distribution from the United States. And I under stand we have foreign relations participation--the Virgin Islands is
participating and I'm pretty sure that Governor Farrelly will have that expanded. Then we have the land grant to the
University of the Virgin Islands. Most people might not know what that is we get money on a yearly basis from
several acts of Congress that provide land grants. It originally was to help colleges in the United States and the United
States provided land. Well we already got our land so that was not included in the land grant We already got that
free of charge--the campuses both in St. Thomas and the one in St. Croix. Not only that, but the programs of the land
grant college, as I understood from Dr. Padda over in St. Croix, where most of that activity is, touches the lives of
maybe 4 to 5,000 people in addition to those that are in school, whether they go on extension programs and so forth.
Then there was the authority granted to the Virgin Islands Legislature to fix the compensation of members. And let
me go back a little bit to 1954, when there were so many complaints to Senator Butler, who was the one responsible
for getting the Organic Act amended. But what they wanted to do at that time was to try and stop the members of the
Colonial Council from holding a lot of unnecessary meetings just to draw a stipend. And they fixed a salary of $600 a
year and gave them a title of Senator, and I just want to tell you, they resented that very much; we all resented it very
much and this is one of the things where the question of colonialism came in, and I want you to know that I was
successful in getting Congress to change this and give that right to the members of the Legislature to set their own
salaries. Then we have so many other programs of federal funds that we talked about--sewage treatment plants,
federal funds for water mains, federal funds for schools, federal laws permitting the Virgin Islands to adopt their own
constitution. And here again, we have had that right for many years now and there have been many constitutional con
ventions held, but it's the people of the Virgin Islands, when they were submitted for referendum, who did not
approve. And there is only one or two reasons that I can see. And I think we should look into that because the
Constitution that was drafted was very good except maybe for one or two provisions and we should go over that very
carefully because I do believe the time has come. And it's a separate thing and apart from status. I do believe that we
have that right. It was given to us by Congress. I think we should exercise it and we should draft a proper constitution
for the people of the Virgin Islands. The federally funded housing project for those in need. And I can go on with
many, many more, but I don't want to use up all my time. I just want to show you the benefits that we have gained
under the 71 years under the change of sovereignty from Denmark to the United States. And I want to tell you that
many of these changes were accomplished by members of the Legislature going to Washington, by previous
governors and myself included as one and, I think, many other agencies. I just want you to know that the study should
go very deeply into the other federal laws that should either be amended, giving the right of the Virgin Islands to
amend them, and the Virgin Islands Legislature should write a constitution. And if it's adopted, if changes should be
made, changes should be made later on. Even the Constitution of the United States has been amended on several
occasions and these amendments should be made by the Legislature and approved by the people. I think when we do
all of these things and we get the federal laws changed, I think we'll be doing better even than the states and the status
of statehood. But be that as it may, I'm not ruling out the question of statehood, because I do believe that when I
examine some of the figures that I have gotten recently of the Virgin Islands, it's unbelievable what has happened
under the American sovereignty. Just let me mention a few of these figures for you. The population in 1960 when I
became governor was 32,000. Today it's estimated to be at least 110,000. School enrollment was a little over 9,000.
In '86 it was about 36,000. Tourist arrivals in 1960, both the air arrivals and cruise ship passengers, was about
144,000 tourists. Today that figure, 1986 and beyond, comes to about 1,800,000 tourists a year. The tourist
expenditure, which is also important, which brings money into our treasury, was approximately $18,280,000. Today
in 1986, the figure that I got, was over $550,000,000. The bank deposit--I don't care what status you get, if you want
to develop yourselves in industry or finance different things, you need a bank, and you need a good bank. In the
1960s the total deposits--we had two banks then--was $27 million. Today it's about $1.5 billion. And I just mention
this so that you will know what it is and what we have achieved and I feel that if this should continue for another 10,
15 or 20 years, God alone knows, with good management and good efficient running of the government and with
Governor Farrelly connected, how much more this would be. I think we are on the road to self-sufficiency. I think we
are self-supporting now as it is. I just received a note telling me that my time is up and I did leave materials with Dr.
Leary and I think I gave copies to all the members participating in this panel. I left three documents--one was my
status report from which I just read some of the things in 1988. Then there was a testimony before the Senate
committee on political options in 1984. And then there was a discussion in 1982 and one in 1981. So that these
documents, all put together, outline the things that we have to do and consider so we can make an intelligent opinion
of where we are going, what we want to do, and how we want to do it. And I do hope we make the right choice and
thank you all.
Dr. Kean Just for the record, my note alerted him that his time was running out, not that he had run out of time.
The former Governor has shared with us our experience in moving towards a more autonomous status under the
American flag and he has stated with confidence his belief, based on our experience, that we could negotiate a
compact that perhaps would include some of the items the Governor has mentioned that need attention. Also, I don't
know if this is the first time on record, but he has stated that he believes statehood is a possibility for the future.
Thank you very much, sir. Now we'll hear from our Senate President, Honorable Iver Stridiron.
Senator Iver Stridiron Thank you, Dr. Kean. And good evening, Governor Paiewonsky, Governor Farrelly,
our Congressman Ron De Lugo, and good evening to all of you in the audience here and as well the audience that is
listening to this broadcast this evening. I have followed the conference as it has evolved over the last two days and
before I give you some hint as to my leanings with regard to this status issue, let me give you just very, very, briefly
my political orientation, my political philosophy, and my allegiance. Because I think that will set the base on which I
build to the comments which I wish to make. And I think it's going to demonstrate that while we may have one at 70
odd years and another at 40 some odd years, sometimes you'll find that philosophy is the same, and that over the years
we haven't really changed that much. First of all, I consider myself to be a moderate, that means not too far to the left,
not too far to the right, and not dead center either. I think everybody under stands and knows what I'm speaking of.
My political philosophy is one that I believe has been adhered to by the Democratic Party and indeed even the
founders of this country many, many, years ago. And it is a philosophy based on promoting that which will result in
the greatest good for the greatest number of people in the community and that, I think, was, espoused in later years, by
Machiavelli, who was supposed to be a diabolical person. Basically that's where I come from. What I'd like to do,
and what I propose to do, is all the things that I do in a political arena and hopefully in my life-style is to do those
things that I believe will inure to the benefit of all of us in the community and the United States as a whole. Now my
allegiance is that of a United States citizen, first and foremost. I have a nationalistic streak running up and down my
back just like many of you here in this audience, but it's a little different. The nationalistic streak is based on my
being very proud to be a Virgin Islander, but equally as proud to be a citizen of this great country of ours. And that's
my philosophy and that's my allegiance. Now Governor Paiewonsky's speech and the comments which he made have
preempted mine, because basically I agree with him. Why? Because I believe in the old adage, and it's been espoused
many, many times, that if it ain't broke, it don't need fixing. Frankly speaking that's where we are right now. As I
said I've listened with some degree of interest to all of the people talking about status options, independence,
statehood, incorporated territory, unincorporated territory, commonwealth, compact, federal relations--well basically I
think we've missed the boat. Why? Cause let me give you just a brief history of this overall status issue. I think
you'll remember that the Virgin Islands attempted on two separate occasions following 1976 enabling legislation, I
believe, in 1979 and 1981, to enact a constitution for the people of the Virgin Islands, and both failed. And frankly
speaking, I think many people today seemed to have missed the message. And I think the message simply was that
the people of this territory were not so much happy with the status and the relationship that they had at that time with
the United States, but that they were comfortable with it And unless someone was prepared to show them how they
could improve on what we have, then they were not about to fix that unbroken relationship. And I think that's where
we are. In 1982 I remember, and it was a most interesting comment--I remember after the referendum was over and
the matter of the constitution had been defeated, there were cries in the territory that one or two people had scuttled
the entire issue. And I said to myself, how could anyone really believe that the gentleman getting on television the
night preceding the referendum could defeat the referendum? But that's what was going through this territory. And
people simply missed the point that the people who did not vote for the constitution felt that they already had a
constitution. And that constitution was, and is, in my judgment and perhaps in the judgment of many people in this
community, the Organic Act of the Virgin Islands. Many people feel that that is exactly what we have today--a
constitution. Fine, it is not the most perfect document, but how many times have you heard that about which
document, the Constitution of the United States? Alaska, Hawaii joined the Union, but they didn't come in making
demands. They joined and they accepted the Constitution of the United States as the sovereign document. The
document that they operate their governments. The document which guides the people of the two sovereign states in
their day-to-day affairs. And yet we in the Virgin Islands, for some reason, feel that we should not also accept the
Constitution and the Organic Act of the Virgin Islands as the documents which guide us in our daily affairs and our
government as a whole. The matter of the Select Committee which was organized and mandated by legislation has a
curious history and it's something that perhaps my good friend, Senator Berry, will not appreciate. But I don't think
many of you in this audience realize that the report of the Status Commission has met with lukewarm responses from
14 of 15 senators in the Legislature. Why? Because in my judgment, and I don't speak, and I say this candidly, I
don't speak for every member of the Legislature, but I think the majority of us in the Legislature are very comfortable
with what we have now. I don't feel that it is necessary to have a status commission who will run around and do all
sorts of things and in our judgment, return us to square one. Precisely where we are today. And why do I say that?
Because all that we are seeking to do by way of referendum, by way of a status referendum and committee, and the
opportunity to negotiate with the federal government, are things that we can do right now. Governor Farrelly spoke a
moment ago about matters dealing with functional areas that the Virgin Islands should be moving in the direction
of--immigration, customs, international affairs, natural resources. And yet, all of these areas are being addressed
now, without resort to what? This document, this status, this commonwealth status, independence, or statehood. And
yet we are still talking about whether or not we want to move in this direction and forge a more perfect union, a more
perfect relationship with the United States of America. We are the United States of America--all of us. Why? Look
at this table this evening. Look at your neighbor who sits next to you, and you will agree with me that in the Virgin Is
lands, we have been able to go far, far, farther, all of us individually, than perhaps we would have ever been able to
go had we lived where? On the mainland United States. The matters of addressing the federal government, trying to
secure for the Virgin Islands a better position, is already being done. We have our Delegate. There are those who say
well if we move to a statehood, the Delegate would then have voting power on the floor, that we'd have two senators.
It matters not whether you have two senators or four senators or three delegates, or three representatives or 4, 6, the
fact still remains that he/she still has to wheel and deal, forge coalitions, make friends, and avoid your enemies. And
that can be done now, is being done now. And yet you're talking about changing our relationships with the United
States of America. We are the United States of America. Now the Organic Act--and this is why I said that one
gentleman 70 odd and another gentleman, myself, 40 odd, and yet everything that Governor Paiewonsky said I
wholeheartedly agree with. My option, the option I believe that the vast majority of Virgin Islanders will opt for when
this matter comes to a referendum, is the status quo. And the status quo being an unincorporated territory. That
doesn't mean that we stop all efforts which are currently ongoing to improve the manner in which we address our
internal affairs; it doesn't mean that at all. But, it means that all of those matters can be addressed utilizing the very
same status that we have now. That is the opinion that I have. As I said before, I am not sure it is shared by all of the
people in this audience, but I rather believe that it is shared by a vast number of people in this Territory. And as such I
will be campaigning for the retention of the status quo while at the same time urging our Governor, our Delegate, and
all of the people of the Territory to agitate for those matters, those areas, where we feel that perhaps we can have some
improvement. When I lived on the mainland, I took it as a matter of course that I voted for the President of the United
States. When I returned to the Virgin Islands, I took it as a matter of course that I would not and frankly speaking, it's
nice to be able to vote for the President of the United States, but it's not something that guides my life, nor should it
guide the lives of all Virgin Islanders. It is not something that is going to make us less as citizens of this great country
of ours. It would be nice to have it. One other matter I'd like to discuss just very briefly. As I indicated to you, the
Organic Act in my judgment is the Constitution of the Virgin Islands, just as states have their own constitutions. I
believe that if we are dissatisfied with areas in the Organic Act that we should do exactly what Governor Paiewonsky
said, and that is move to have the Organic Act of the Virgin Islands amended. I believe we can do that. I believe that
notwithstanding the fact that we failed twice to enact a Constitution of the Virgin Islands, which was almost a
duplicate of the Constitution of the United States, of the Organic Act of the Virgin Islands, notwithstanding those two
failures, I believe that the process shouldn't stop and that we should go ahead if we feel that the document needs to be
acted upon by the people of the territory. And that act could be us moving, agitating to have it amended, or moving to
endorse some document that stands as the Constitution of the Virgin Islands. But as I said, if the document varies in
any significant way from the Constitution of the United States, I don't think the people of the Territory will or should
vote for it. Rather, if it replicates the Constitution of the United States and brings it within the Virgin Islands
experience, then I think that document will be a document that all of us could support. So my posture is--as I said
before, it may not be one that everybody likes--but my posture is that the Organic Act of the Virgin Islands is our
Constitution. Let's amend it if we feel that it needs to be amended. But I don't believe we should go the other route.
I don't favor statehood, I don't favor independence, because frankly speaking I think we are going to lose a heck of a
lot more than we are gaining as we continue our relationship with the United States government and the people of this
great country of ours. Thank you very much.
Dr. Kean Thank you, Senator Stridiron. You may have come late, but I believe that your candor and your
inferences referring to the status quo may keep us here late. I would like to recognize Senator Lorraine Berry, who
has been at the fore front of this status issue, and I would like to promise Senator Berry that although I cannot promise
her equal time--15 minutes may be a bit much--I will promise her time to share her thoughts with us, because I know
that she will probably like to respond to some of the things that our esteemed Senate President has said. We now turn
to our Delegate to Congress, the Honorable Ron De Lugo.
Delegate Ron De Lugo Thank you very much, Dr. Kean. Governor Farrelly, Senate President Iver Stridiron,
former Governor Ralph Paiewonsky. Let me tell you all that it is a great pleasure for me to be here with you this
evening.
I had not been sure that I could make it. In fact, I was very doubtful that I would be able to make it, because, as you
saw the President of the United States when he gave his State of the Union Address and he was chastising the
Congress for not having moved diligently on the appropriation bills and so forth and so on. At the same time I
watched him heft this incredible budget document, and it was very dramatic, but at that very moment it had already
been decided that the President of the United States was going to be delivering his budget document to the Congress
six weeks late. That wasn't brought out in his speech, but nevertheless it has put us behind.
Because when Dr. Leary first spoke to me about this conference, I encouraged him, because I think it's a great thing
that we're having here. We're having an open discussion and I certainly enjoyed the panel sessions that I was able to
see and hear this morning and this afternoon.
As I started to say, we're behind on our budget process. We had the good fortune of having Governor Farrelly
before my committee just the other day--Thursday, day before yesterday. And we not only had Governor Farrelly, but
we had also the governors from the Northern Marianas, and from Guam. And we had the Speakers of the House and
all the leaders. And we had people that had come from as far away as 9, 10,000 miles, all the way from Palau, from
the Marshall Islands, Micronesia. And we had budget hearings.
They had me in the chair from quarter of ten in the morning until six o'clock Thursday night. It was a tremendous
hearing. I think some of it you heard here later on in the day. And after you finish that hearing, then you have to get
down to the business of putting that budget together. It's quite a problem because, while we've heard the slogans
about just say no, after we, the Governor and I, worked as hard as we did to get not only authorizations but
appropriations to fight the drug epidemic that we've got in our community, we find that the President hasn't put one
dime, has not requested one dime for this fiscal year. And of course there have just been draconian cuts throughout
the budget, so we're going to have to see how we deal with that.
I got on a plane yesterday to come down and I got as far as St. Croix and they told me (it was a Pan Am plane) it's
been raining in St. Thomas airport and the wind is coming from the wrong direction, that is a tail wind. So they
weren't going to be able to land here. So I came over on a little plane last night risking life and limb to be here with
you. Honest to God, we got to do something with this airport, man. Let me tell you, it looks good. The only thing is
that the old terminal is sitting right there and if you approach it like I did last night --Lord it looked good when I saw it
coming up. The new runways are in, but the old terminal is sitting right there and we've got those legal problems with
Rogge. Governor, good luck to you.
The real reason that I'm happy to be here, though, is that the subject of this conference can determine the type of
community that our islands will be in the future. It is a subject that our community has not focused enough upon in
the past. So, as I said, when Dr. Leary first spoke to me about this conference, I encouraged him. And from what I
have seen and from what I have heard so far, the University of the Virgin Islands, the Conference Advisory
Committee, and the participants, have made this really a conference that has lived up to the highest expectations.
And I know that some of the panelists this afternoon sort of touched up Dr. Leary and those who worked on this
conference and found fault with it. Well you can always find fault with something, but I don't agree. I think what the
University has done here is what we needed to do years ago. Let everybody appear and bring out their point of view.
The reason this is working is because it is being conducted by educators and non-partisans. And therefore it is not
weighted in one direction or the other. There was a lot of eloquence and a lot of strength today on the issue of
statehood, on the issue of independence, and yesterday there was talk about free association and of course
commonwealth. I encourage this conference because it is exactly what is needed to get a new look in our islands on
status and federal relation issues, and that is a thoughtful, thorough and non-partisan discussion.
Unfortunately, previous attempts to get our people interested in this subject have failed. They have not been able to
explain how the complex questions of status relate to our people in their day-to-day lives. I don't want to belabor the
question of why this subject is important, but let me try to summarize the reasons as I see it. And here I must say that
while I can appreciate what has been said here by Governor Paiewonsky and Senate President Stridiron, I'm a
politician and a fairly successful one. I've been dealing with these issues for almost thirty years fairly successfully, so
I understand what you have been saying. What you've been saying is solid because it's very pragmatic.
But I feel that our people have never had the chance to determine their political status. I feel that simple dignity
demands that we finally do this. But nobody rushes us into it. And the people really have to make the decisions. So
there has to be an educational period and the people have to be reached. If the people, after you've reached them, if
they don't want change or if they don't want to do anything, then we shouldn't do it. But don't try to pressure the
people. That has been one of my concerns. Second, status and federal relations decisions are the basis of all the other
decisions that we will make as a community. How we cope with the pressing day-to-day concerns related to life in
our islands is governed by our status and how we fit into the American political scene. I have seen no better
explanation of why these issues relate to the concerns of our community than the excellent series of articles that Dr.
Leary published in the Daily News recently. Certainly during this conference others spoke eloquently and forcefully,
brought home to us the importance of this issue, but that it is a highly complex issue. It can tear a community apart.
We were warned of that by Arnie Leibowitz, who has a tremendous amount of experience in this area. He has
experience with the Commonwealth of Puerto Rico and also with Guam. Some of us didn't want to hear that, but we
are here to tell the truth. It can tear us apart.
I have some thoughts on many of the statements made during the independence panel today. Let me tell you
something. All the panelists had their point of view, the independence panelists, but the thing was that only Dr.
Warner from St. Kitts has actually lived through the independence experience and dealt with it. And he warned of the
consequences. He said it's tough. The people have to know what they're getting into. If I interpret his remarks
correctly, he certainly warned us to be very careful. When somebody asks if we could do it all in eight months, let me
tell you right now, no responsible person can tell the people of the Virgin Islands that they can deal with the status
issue in eight months. I hope what has been accomplished the past couple of days is the beginning of the non-partisan,
open debate that I have been urging for years. I've written to every Governor while I've been Delegate, urging them
to move ahead, telling them what the other insular areas are doing. But to move ahead with the education of our
people so that we would come to understand why it's important to us.
The debate should begin now, but as Ariel Melchior, Jr., said in the newspaper just recently, it's not humanly
possible to complete this process in a responsible manner between now and November. The full debate we need is
essential if our people are to understand what is at stake and the issues involved; what choices are open to us as a
people; the full implications of those choices; what is realistic to expect within these choices. And most important,
what will meet our goals for what our islands should be. Because before we start talking about what status we want,
we have to decide what we want to be. This has been the mistake that has been made consistently with our sister
territories. Don't follow what somebody else did; don't pick a status like you're picking a flavor of ice cream. Decide
first what we want to be here in our home.
You know I have dedicated all of my adult life to two causes: giving our people greater control over our destiny
and improving the quality of life of our people. And in a sense what we've been preparing for all this time is the job
that lays ahead for us now. I've been fortunate to have been able to work to get a wide range of benefits and
assistance for our people that are now enjoyed from the federal government. And along with other leaders, I have also
been privileged to help gain for our people, important rights of self-government. We now have a Legislature which
makes almost all local decisions. Just a few years ago it wasn't like that. When I was a young man, it wasn't like
that. We have broad authority for local courts. The Congress has given us the power to have our own local Supreme
Court. Who hasn't moved on it? We haven't moved on it. The power to elect our own governor. We have that The
right to send a representative to Congress. And the power of the people to make laws directly-- that was the power
that I gave to you just recently.
As Delegate, I am our islands' principal spokesman in the Congress of the United States. And as Chairman of the
Subcommittee handling insular matters, I am the point man in the House of Representatives for listening to, and acting
on, what our people as well as those of the seven other insular areas say and need. In both jobs I have the
responsibility to work on the immediate and the long-range items faced by our people in Washington. Much of my
time as Subcommittee Chairman involves future political status questions.
You probably know that one of the biggest status issues in this Congress is Palau's movement from trust territory to
freely associated state. Because of mistakes in the way that this goal was approached, Palau's compact of free
association has not been able to be approved even though most Palauans, a majority of the people of Palau, and
Congress want it to be. The consequences of this frustrating situation have been felt by everyone in Palau and have
included serious violence.
Last week leaders of Guam came to Washington and presented me with a draft status and federal relations bill.
After voting to become a commonwealth in 1982 and conducting informal consultations with federal officials since
1983, the people of Guam took four years to debate and agree upon the bill that they presented to us last week. But
Guam faces difficulties with its bill because the territory decided to be a commonwealth before it decided on its basic
goals for its federal relationship. Some of the goals that it has decided on don't fit under commonwealth. Further,
Guam's leaders did not work out the details of their bill with federal officials before they called a referendum on it
And because of this, the federal government will now have to reject provisions of the bill it disagrees with that have
already been approved by the people of Guam.
Although the federal government now agrees that the future status of the territory is a decision for the people of a
territory to make, the United States must be an equal partner with a territory in defining the details of the future
relationship between the United States and their territory. You can't just ignore the federal government. Guam's
present federal relation ship is almost identical to that of our own as each one of the speakers pointed out. For as long
as Guam's leaders have been discussing how to improve their island's federal relationship, I have been urging the
leaders of our territory to do the same. The past governors and legislatures never got together on this matter in any
meaningful way.
But four years ago a legislative committee put together legislation for status decisions by our people. This was
done in less than a year and with little public awareness. I read the record this week. Their report was not a bad draft,
but it is now three years old. It is out of date in several important aspects. For example, the proposed compact of
federal relations proposes an income tax relationship with the United States that the territorial and federal
governments agreed to replace in the 1986 Tax Bill. It also proposes excise tax rights that the territory lost in the
federal courts. Additionally, the proposed compact of free association proposes the very same tax and trade benefits
from the United States that Congress rejected in 1985 when they were proposed for the Federated States of Micronesia
and the Marshall Islands.
The report also left out essential proposals about process and substance. For instance, it would have our people
decide on the details of a future status at the same time that they choose between status options. This could lead to
choosing a particular status, but leaving out important elements of that status. No means of fixing rejected sections of
the chosen status is proposed. The report also contemplates negotiations with federal officials after our people have
decided exactly what they want from Washington, but it does not say a word about how these negotiations are to take
place. There are also what I am sure must be unintentional omissions. For example, the compact of federal relations
does not address the question of immigration, an area where our crowded islands should exert some control. It would
seem to repeal the current applicability to our islands of the 13th Amendment, which bans slavery. The compact does
propose many things that I am for but which deserve more careful, thoughtful study. These matters are too important
for needless mistakes to be made.
As I noted earlier, as a people we have a right to choose whatever political destiny we want. But we must not do it
lightly. In formulating these choices for our people, our leaders have a responsibility to define these choices in
realistic ways, otherwise we lead our people to becoming locked into unrealistic positions, raise expectations and
ultimately lead to needless and counterproductive disappointment. The dangers of this can be minimized if our people
have the benefit of full debate about this issue. The University of the Virgin Islands and all of the participants in this
conference have made such a good beginning that this initiative should continue. The reason that this beginning has
been so worthwhile, is because it has been educational and not a partisan one. It is this type of discussion that we in
our community need to take to the people. Thank you very much.
Dr. Kean Thank you very much, Congressman De Lugo, for your advice regarding the attention that should be
paid to the experiences of others who have negotiated a different status with the United States Government and, in
particular, how we might deal more effectively with Congress. Now I would like to ask the members of the panel to
make whatever comments they might like, or ask questions of each other. I would like to start with Governor Farrelly.
Governor Farrelly I happen to share the view of the Congressman that we ought to proceed very carefully.
Since my own thesis leads me to the belief that function is an important aspect of status. And that function should
decide status and therefore the educational process and functions ought to be extended indeed. I'm inclined not to
rush the judgment.
Dr. Kean Thank you very much, Governor. Senator Stridiron.
Senator Stridiron Yes. Thank you, Dr. Kean. I believe that Governor Paiewonsky is at the stage where he does
not have to hedge his bets and I've never learned how to hedge mine. And the other two gentlemen on the extremes of
us are master politicians. But I think the people of this territory would like a definitive statement from both gentlemen
as to what or which of these status options they prefer. Governor Paiewonsky and I have indicated that we believe
that at this juncture, unincorporated territory status is how we should proceed and try to improve on that status. And
I'm not sure that we heard how or in what direction the other two gentlemen are leaning.
Governor Farrelly I can sum it up very simply. By simply referring again to function. The changes that were
incremental were incrementally made under the Revised Organic Act. The Organic Act is still available. The
increments I am sure can be corrected and moved forward. Therefore, there is no compelling reason for calling a
change of status or simply to revise a Revised Organic Act and call it a constitution, when it serves exactly the same
purpose.
Delegate De Lugo I'm comfortable with that.
Dr. Kean As I mentioned before, we have some powerful hitters in the dugout tonight. We're at the bottom of
the ninth and I think you (the panelists) all have scored some runs. But I'm going to exercise my prerogative as
moderator to throw a curve ball. What you seem to be saying is that neither the state hood nor the independence option
appears to be the one that you see as a likely choice at this particular point in time. Mention has been made by a
number of panelists at this conference that the only permanent options, or rather the only options which have
permanence and which are legitimately accepted by the UN-- even though the UN does talk about free associated
status--are independence and full incorporation, which in the United States context at this point with the constitution
we have, would be statehood. Anything else is simply a waystation. I think some one even has mentioned purgatory -
I may have put my foot in my mouth there. So I would like to hear from the panelists as to their view on anything
other than independence or statehood, which is full incorporation, as simply a waystation to those two options.
Senator Stridiron Frankly speaking I believe that if we had to make a choice, other than unincorporated
status--that is unincorporated territory which we are now--I would want to move in either direction of statehood or
independence. But my opinion is that the Virgin Islands government and the people of this territory would lose a
great deal more than we gain if we became independent or if we opted for statehood. I believe that there's not one
among us who would want to waive the mirror tax theory on which we operate that is getting all our tax money
rebated to the territory. There is not one of us who would want to see that And yet under statehood, isn't that more
than likely what would happen? Then we would have to support the federal bureaucracy as opposed to supporting the
territorial bureaucracy. I think those are some of the things that we have to think of. We benefit greatly in my
judgment from our current status. And I think that if we're going to change it, we'd better be sure that we have the
natural resources in terms of people and materials in the Virgin Islands to support ourselves at the same time that we
are looking to the federal government, whom we have set aside, to assist us. And if we're looking to statehood we
should also be assured or ensure ourselves that we also have those two elements and that is, as I said before, the
natural resources and the people resources. Otherwise I think we'll find that the territory as it is currently made:up of
the three islands and our cays and so forth will become a very, very uncomfortable place to live. That is just my
opinion.
Dr. Kean Congressman, De Lugo.
Delegate De Lugo Thank you very much, Orville. This is an incredible subject, an incredible event because,
let's face it, yesterday and today are the first times that we've really had meaningful debate or discussion about status
here in the Virgin Islands. We have had status commissions, but we have not had the types of debate that I have heard
here--the give and take and the exposure of all--not all--but many of the complexities of this issue.
The fact is that status, the reason it is so fascinating, is that it's an evolving process. You know ten years ago there
was no such thing under the American system as free association, but today it's an accepted status. And who knows
about that? The problem with free association under the American system today is that as a policy matter, they do not
want to grant citizenship with free association. We don't know if that will stand forever. But the thing is this, that
the people have to be given the opportunity to learn what these various statuses mean and then the people will decide
if they want to make any changes. Now we're supposed to go for a final, perfected status between now and
November? No. What we should be doing between now and the foreseeable future is discussing these various status
options and working to refine the Organic Act that we have, as has been suggested by most of our panelists here today.
Dr. Kean Any other comments?
Governor Farrelly Yes, I'd like to comment on that. The question of whether independence or statehood are
available options, it seems to me, is a decision so distant in the future as ought not to be seriously considered now.
Whether we maintain the Revised Organic Act, or whether we amend it or Congress substitutes a local constitution,
our folks would have to be educated as to the real losses that are likely if we move in a certain direction. Senator
Stridiron mentioned correctly the Mirror Tax Theory, but there are others like the Jones Act, which says we can ship
stuff in and out of here in foreign ships, which has some relevance to the cost of a product. Headnote 3A by which we
can import materials and supplies, transform the product, so long as transformation does not exceed whatever
percentage it is, 60 or 70%, and we can ship the product duty free into the United States. And so it would have to be
clear to our folks who have to choose those options that there is a price to pay for whatever status we choose. Thus
I'm trying to persuade us not to get hung up on what we call ourselves, because the title does not define your
relationship. The relationship hasto be defined on a functional basis in which we can exercise powers A, B, C, D, and
E, so that everybody among us knows what we get when we accept this or what we give away when we accept that.
So long as the educational process, then, pays deference to those concerns, I'm in support of the educational function,
but the quality of that education will have a direct relationship to the time we spend educating ourselves.
Dr. Kean Thank you. For the record, I would like to remind the panelists and the audience that my question
really had not to do with those options at this point in time, but with a perception that was shared by a number of
panelists that those were the only two options that might be available, that are permanent so to speak, and whether or
not any other option was seen as a transition rather than themselves being permanent status positions. Would the
panel like to discuss anything further before opening the floor to questions?
Senator Stridiron Dr. Kean, there was one comment, I heard, I think it was an earlier panel, either earlier today
or yesterday, and one of the things that came out of it was some concern that because of the manner in which the
Organic Act was enacted into law--that is by Congress not by the people of the territory--that there was some concern
that Congress had, as they do have, the unilateral right, or the right to unilaterally change the Organic Act without
input from or by the people of the territory. And I think if you look at the overall history of the Organic Act, at least
the most recent history, you will find that the Organic Act has been amended, at whose behest? Generally at the
behest of the people of the territory and that generally Congress doesn't monkey around with our Organic Act. Why?
Probably because it is not of that great an import to them. We don't appear; we don't promote ourselves in such a
posture that we serve as a threat to the mainland United States. And as such, I believe the sentiments in Congress are
sentiments which are supportive of the people of this territory, rather than antagonistic towards us that could then
result in that unilateral amendment of the Organic Act to do something to us that we don't want done to us. I think
that's something that we ought to take a look at. It was thrown out and I thought I would want to address that subject
matter.
Dr. Kean Thank you for your views. I must say that I believe the limits of the power of the moderator are less
than the limits of the powers of the panelists. I believe that next time I will want to serve on the panel. Are there any
other comments or questions that the panel would like to make before we open the proceedings to the audience for
questions and comments? Hearing none yes, sir? (Dr. Kean then recognized a member of the audience.)
OV THE
CONCLUDING
1962
REMARKS
Dr. Richards In wrapping it up I do want to explain something that I said when we started, and it is still a
concern of mine, more so since I've listened to this conference. I said to you that the University has been charged
with providing the education necessary for people to make thorough judgments on these issues. And I asked that there
be sufficient time for the University to be able to do this, because I don't want to hear five years from know that "the
University didn't tell us the other side of this and the other side of that". As I listened to the speakers I began to hear
of disappointments of people who went into something without knowing, who thought they were going to get this and
then they got that And the onus is on the University. That is the sense in which I asked it. I still ask it Someone
stopped me and asked me, "Sir are you trying to stop the vote November 9?" I'm not trying to stop the vote
November 9. I'm trying to have the University do a thorough job giving the pros and the cons of each option so that
the community could know. I heard Professor Emanuel call for that this afternoon even though he wants
independence. But I must repeat that I should not like maybe ten years from now for someone to write in the
newspaper or say that we voted for x, y, or z without having had the proper orientation. I doubt whether or not,
regardless of what has been said--I don't want to start an argument--but I doubt whether we are able to do this between
now and November.
I also want to thank everyone. Special praise to Dr. Leary and his committee which, by the way, was comprised of
not only of University people, but as you see on your program, people from the community. I want to thank all the
visitors who came and spent their time with us. I heard, for example, don't bring anybody from the outside; you do it
yourself. Well sure that's fine, but we can get a picture from the people who have different points of view; so we're
glad you came. We're glad you expressed yourselves, and I'm glad for everyone who performed and everyone who
came. Dr. Kean, thank you very much.
Dr. Leary Well as Dr. Harrigan mentioned, if this were a college course. it would be what we call 100 level.
I'm talking about the conference--a general broad overview and introduction. I couldn't agree more with the notion
that we need an in-depth analysis from a number of points of view. For example, an in-depth analysis of economic
consequences of various statuses. No matter how idealistic we may want to be, we still have to live in the world as it
is. We have to take into account the economic factors. But we also have to take into account things such as impact on
culture, quality of life, environment. There are a variety of issues that make up the things that are worth living for
because man may need bread, but, as been said by someone much more powerful than me, man does not live by bread
alone. I don't have much to say about the education campaign except to reiterate the sentiment I hope that we have
enough time to properly prepare it. Believe me, properly preparing this two-day conference took an awful lot of time.
It required the efforts of a lot of people including, as Dr. Richards mentioned, the members of the organizing
committee, a twelve-person committee drawn from both islands, St. Croix and St. Thomas, and representing both the
University and outstanding members of the community. So this is something that takes quite a bit of effort and quite a
bit of care and quite a bit of structuring to make sure that the dialogue is a rational and informed one, rather than one
which is purely emotional, not that there's anything wrong with emotions either. I'd like to thank everyone who
came, everyone who participated, especially our panel tonight of the elected leadership for, as Orville said, having the
courage to come out and indicate quite clearly where they stand on this important issue. Thank you all ladies and
gentlemen. I guess this about wraps it up, and I hope everyone had a nice evening. Thank you very much.
PAPERS
Presented
at the
CONFERENCE
on the
FUTURE
POLITICAL STATUS
of the
UNITED STATES
VIRGIN ISLANDS
o TH1E
ADDRESS BY:
HONORABLE LORRAINE L BERRY
ON THE
COMPACT OF FEDERAL RELATIONS
TO
STATUS CONFERENCE. UNIVERSITY OF THE VIRGIN ISLANDS
ST. THOMAS CAMPUS
FEBRUARY 26. 1988
These Virgin Islands, by the terms of the Convention between the United States and Denmark of August 4, 1916,
came under the American flag on March 31, 1917, subject to the sovereign power of the United States. It is important
to understand, however, that these Virgin Islands are not now, and were never a part of the United States. The 1916
Convention did not incorporate the Virgin Islands into the Union. Rather, it reserved for future determination by
Congress, the future political and civil rights of the inhabitants of the territory, (Article 6, Paragraph 2). Further, in
1954 Congress formally declared the Virgin Islands to be an "unincorporated territory of the United States of
America," (Section 2-a, Revised Organic Act of the Virgin Islands, July 22, 1954).
The Territorial Clause of the U.S. Constitution vests the territorial power of the United States in the Congress,
("Congress shall have the power to dispose of and make all needful rules and regulations respecting the territory or
other property belonging to the United States"), Article IV, Section 3, Clause 2. And the courts have held that in the
territories, Congress has the entire dominion and sovereignty, national and local, and has full legislative power over all
subjects upon which a state legislature might act. But this power may be transferred to local legislatures except as
limited by the Constitution and acts of Congress.
In 1964 the Virgin Islands legislature convoked the first Constitutional Convention of the Virgin Islands to draft a
so-called "second revised Organic Act" The convention consisted of twenty-two elected delegates in addition to the
entire membership of the legislature, which then numbered eleven senators. Using the Revised Organic Act of 1954
as a working document, the delegates produced seven major proposals:
1) Enactment by Congress of a new Organic Law which would be subject to
amendment by the Legislature, by popular initiative, and by constitutional
conventions;
2) Elected Governor and Lieutenant Governor;
3) Removal of limitations on voting for at-large members of the legislature so
that each voter will be empowered to vote for a number of at-large senatorial
candidates equal to the whole number of at-large seats to be filled;
4) Elimination of presidential review of legislative overrides;
5) Appointment of government comptroller by the Governor with advice and
consent of the Legislature;
6) Elected Resident Commissioner (or Delegate) to represent the Virgin Islands
in Congress; and
7) Authority of the Legislature to fix the compensation of its members.
The Convention also petitioned for a constitutional amendment to extend the presidential vote to the people of the
Virgin Islands, declared that the Virgin Islands should be an autonomous territory within the constitutional system of
the United States and should not be annexed to any state, county, or other jurisdiction under the American flag.
The proposed "second revised Organic Act" was not submitted for ratification by the people in referendum, and
Congress refused to consider the recommendations contained therein as a "package". Nonetheless, by 1968, Congress
had enacted the Elected Governor's Act, removed the limitations on voting for members of the legislature, eliminated
the presidential review of legislative overrides, and empowered the legislature to fix the compensation of all of its own
members.
In 1971 the Legislature convoked a second Constitutional Convention which consisted of thirty-three delegates who
were members of the Legislature and appointees of the governing bodies of the legally registered political parties.
This convention produced a draft constitution and accompanying Federal Relations Act. These documents were
submitted to referendum in conjunction with the 1972 general election. A total of 77.3% of the voters who
participated in the general election, also cast ballots in the referendum. The proposed constitution and Federal
Relations Act was ratified by a margin of 56.2% to 43.8%. But these documents went nowhere.
However, in 1976, Congress enacted legislation which empowers the people of the Virgin Islands to adopt their
own constitution for local self government. But the legislation mandates that the constitution must be drafted within
the existing territorial-federal relationship.
The late Governor, Cyril E. King, who was then in office, objected to this restriction which he said made it
impossible for convention delegates to address federal relations matters which were of vital concern to the people.
Agreeing with Governor King, the Daily News called the Constitution Bill a case of putting the cart before the horse.
It pointed out that even though a Constitution may be adopted, the basic props of the territory's economy will still be
at the mercy of Congress or the President. The newspaper argued that to use (our) friends and influence in Congress
to work for a document that can do little than restate principles, seems, at best, a poor choice of priorities when so
many other vital questions concerning the Virgin Islands economic status and relationship with the Federal
government are left up in the air.
Two constitutions drafted in accordance with the 1976 law (by the Third and Fourth Constitutional Conventions)
were rejected by the voters in 1979 and 1981 respectively. The delegates were frustrated because even though they
created committees on federal relations, they were legally barred from dealing with status and federal relations issues.
In 1982 the voters determined by referendum that status and federal relations issues should be resolved before
another attempt is made to adopt a constitution. Accordingly, in 1983, I sponsored legislation (approved in 1984)
which set in motion a process by which the people of the Virgin Islands would make fundamental decisions respecting
their future political status or relationship with the United States. Phase I of the process was completed with the
submission on January 14, 1985, of the report of the Select Committee on Status and Federal Relations, which I was
privileged to chair. A bill is presently pending before the legislature to hold a referendum in November 1988 to
enable the voters to choose between statehood, independence, free association, incorporated territory, status quo, and
compact of federal relations, which would represent Phase 2 of the process.
The conduct of Virgin Islands-United States negotiations in pursuance of the results of the referendum would
constitute Phase 3 of the process; and adoption of a constitution and the inauguration of a new government for the
Virgin Islands as a consequence of successful Virgin Islands United States negotiations will mark the completion of
Phase 4, the final step in the process.
COMPACT OF FEDERAL RELATIONS
As indicated, Congress has broad authority to delegate powers to territorial governments. Accordingly, the
preamble of the compact calls for the creation of an autonomous government within the American political system,
which government would be invested with power comparable to that exercised by state governments relative to state,
county and municipal matters. Further, Article X of the compact states that, in order to respect the rights of self-
government and self-determination guaranteed by the compact, Congress would agree to limit the exercise of its
authority under the Territorial Clause of the U. S. Constitution and to delegate to the local legislature its power to
legislate over all subjects upon which a state legislature might act. Moreover, Article I of the compact specifies that
the relationship between the Virgin Islands and the United States will be governed by the compact which, together
with those provisions of the Constitution, treaties and laws of the United States applicable to the Virgin Islands, and
the constitution of the Virgin Islands adopted in accordance with the terms of the compact, shall be the supreme law of
the Virgin Islands. Article I also provides that the people of the Virgin Islands shall have the maximum degree of
internal self-government and shall govern themselves in accordance with a constitution of their own adoption.
The method of adoption of a constitution and the procedures for the constitutional autonomous government to
succeed the existing Virgin Islands Government is outlined in Article II of the compact
The role of the federal judiciary with respect to the Virgin Islands and the applicability of the federal constitutional
provisions are covered in Articles III and IV of the draft compact
Under Article V of the compact, the "mirror theory" of taxation is maintained with the proviso that the autonomous
government, subject to ratification of the people in referendum, may impose its own income tax, provided at least two
years notice is given. It also specifies that the Virgin Islands would be required to maintain a system of customs pre-
clearance at Virgin Islands airports.
The Virgin Islands, under Article VII of the compact would be authorized to enter into commercial, educational,
agricultural, cultural and other regional cooperative agreements with other governments in the Eastern Caribbean,
provided such agreements are not in conflict with the United States foreign policy.
The United States is pledged, under Article XII, to assist the Virgin Islands government in its effort to achieve a
progressively higher standard of living for its people as a part of the American economic community and to develop
the economic resources needed to deliver an acceptable level of basic social services.
The Virgin Islands government's jurisdiction over off-shore territorial limits would be extended from 3 miles to 8.5
miles under Article XIII of the compact.
Articles XIV, XV and XVI provide that: the Virgin Islands shall continue to be exempt from the provisions of the
Jones Act and all other federal laws which (may) require the commercial shipment of persons and goods between
American seaports to be accomplished in U.S. flag vessels; all Virgin Islands laws, executive orders, proclamations
and rules and regulations in effect on the date the successor government is inaugurated shall remain in force and effect
until and unless altered by said successor government; and, in order to respect the rights of self-government
guaranteed by the compact, the United States agrees that the provisions of the compact may be modified or amended
only by mutual consent of the two governments subject to ratification by the people of the Virgin Islands in
referendum.
Regular consultation between the United States and the Virgin Islands on all matters affecting their relationship is
provided for under Article IX of the compact. It also provides for the designation of special representatives of the two
governments at the request of either government, but not less frequent than every ten years, to consider in good faith
such issues affecting the relationship between the Virgin Islands and the United States as may be designated by either
government and to make a report and recommendations thereto.
Finally, let me say, in 1984, Alexander A. Farrelly, Democratic National Committeeman for the Virgin Islands, (who
now serves as our Governor of the Virgin Islands), made the following statements on a political radio program on
Radio WVWI, St. Thomas, Virgin Islands, paid for by the Democratic party of the Virgin Islands:
Today I would like to discuss with you the question of status, a word that has
become popular, particularly since the establishment of the Berry Select
Committee on Status and Federal Relations.
My views as expressed today deal with the label or name of what that relationship
should be. I don't believe that approach is as useful because the search for a label
will not, in my view, facilitate the achievement of the goal. The difficulty with
the search for a title is illustrated by reference to three forms of what is today
called "commonwealth." There is, for example, the Commonwealth of
Massachusetts. There is the Commonwealth of Puerto Rico, and there is the
Commonwealth of the Northern Marianas. Is it any one of these that we wish to
adopt, or is it a combination of all three, borrowing from each? It seems to me we
are chasing after the wrong prize. My suggestion, to avoid the circuity of action,
is to shift ourfocusfrom what we wish to be called, to what functions we wish to
perform. It is my belief that this shift in emphasis is what the great debate should
be all about. What we should be doing then, is to attempt to reach a consensus in
the Virgin Islands about those federal government functions that we wish to take
over, and then ask the Congress to give them over to us. After vigorous and
thorough discussion and the development of a consensus on those government
functions which we wish to exercise, we will then be in a better position to go to
the Congress and request that these functions be delegated to the Virgin Islands.
In drafting the compact, the recommendations advanced by (now Governor) Farrelly were adopted. Article I of the
compact states that: the official designation of the Virgin Islands body politic under this compact shall be as
determined by the people in a referendum-election to be held at the same time this compact is presented for
ratification by the people and said official designation shall be embodied in the Constitution of the Virgin Islands.
FROM TERRITORY TO STATE:
THE HISTORICAL RECORD, THE CONSTITUTION,
AND UNINCORPORATED TERRITORIES TODAY
by
William W Boyer*
The Charles Polk Messick Professor of Public Administration. Department of Political Science.
University of Delaware. Prepared for the Conference on the Future Political Status of the U.S. Virgin Islands.
at the University of the Virgin Islands. St. Thomas. U.S.V.I.. February 26-27. 1988
I have been requested to set forth briefly the historical background of U.S. territorial policy and how unincorporated
territories relate to this record. This is a topic I have elaborated in my two histories of the U. S. Virgin Islands, and I
specifically dealt with self-determination and the issue of status of the U. S. Virgin Islands in previous public
addresses in the Islands and in a 1984 article.2
THE HISTORICAL RECORD
Colonialism may be defined as the economic and political exploitation of a subjugated people for the benefit of a
ruling power. This time-honored doctrine--that territories existed for the benefit of the mother country and were
politically, economically, and socially inferior to it--was definitely repudiated by the Ordinance adopted at the
incipiency of our nation by the Continental Congress in 1787.
The Northwest Ordinance
On July 13 of that year, the Congress adopted the Ordinance of the Government of the Northwest Territory for the
expresspurpose of preparing that territory for eventual admission into the Union "on an equal footing with the original
states". In six "articles of compact between the original States and the people and States of the said Territory," the
Continental Congress extended to the inhabitants "the fullest measure of self-government and all the civil rights of the
Constitution" that--together with the Bill of Rights--was yet to be adopted.4 Thus was established the principle that
the territories 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.
The Northwest Ordinance of 1787 became regarded as one of the great historical documents of the United States.
"Next to the Constitution itself," according to one authority, "it is the most important organic act of the Federal
Government"5 It became the model for subsequent legislation for other territories.
Continental Expansion
Not only did the Northwest Ordinance survive the adoption of the Constitution and Bill of Rights, but its principle
of territory equality with the States served as the basis for the territorial policy of the United States. Article IV,
section 3 of the Constitution gave Congress the exclusive power to admit new states and "to make all needful rules
and regulations" with respect to territories. That Congress consistently chose, throughout the period of continental
expansion, to follow the example of the Northwest Ordinance, was tantamount to raising its principle of territorial
equality and eventual statehood, to becoming part of the "Supreme Law of the Land" itself. Thus, in 1790, Congress
provided that the Southwest Territory should have a form of government in all respects similar to that provided by the
Northwest Ordinance. The Louisiana treaty of purchase of 1803 stated that: "The inhabitants of the ceded territory
shall be incorporated in the Union of the United States, and admitted as soon as possible."6 Almost identical language
appeared in the Florida treaty of 1819.7
In 1848, President Polk treated the area acquired from Mexico as part of the United States from the date of cession.
Accordingly, Secretary of State Buchanan instructed the Postmaster in California that: "the constitution of the United
States, the safeguard of all our civil rights, was extended over California the 30th May, 1848, the day on which our
late treaty with Mexico was finally consummated. From that day its inhabitants became entitled to all the blessings of
the best form of civil government ever established among men."
The policy was followed of extending the Constitution to Alaska when it was ceded in 1867,9 and to Hawaii after
its acquisition on July 7, 1898. An organic act in 1900 recognized the Hawaiian Islands as a fully organized territory
of the United States to which all provisions of the Constitution and laws of the United States were extended (with
special exceptions), and to the inhabitants on which citizenship in the United States was conferred.10
The Government of the United States, therefore, was consistent in its policy as it acquired continental territories.
During the first century of American expansion, following the Northwest Ordinance of 1787, Congress established the
fundamental principle that the territories were infant states, to be admitted into the Union as soon as conditions
warranted. Thus, Congress generally extended local self-government guarantees of basic rights of the Constitution,
and the right to elect a non-voting delegate to Congress. Territorial status was merely a bridge between annexation
and incorporation into the Union as co-equal states.
Variations appeared, according to differences among some of the territories, but the essential pattern remained
unchanged during the century of continental expansion. Indeed, it appeared that the Constitution was intended to
follow the flag. This, then, was the established policy confronting American policymakers when they faced the
problem of governing areas acquired in 1898 from the Spanish-American War.
THE CONSTITUTION
In the Dred Scott decision of 1857, The U. S. Supreme Court maintained that the United States had no
constitutional power to acquire territory except with the Constitution in full effect, and with the purpose of admission
of the territory to statehood as soon as conditions would warrant admission.11
Having reviewed Supreme Court decisions made prior to the U.S. acquisition of extra-continental territories as a
result of the Spanish-American War, W. W. Willoughby concluded that, from the first, the doctrine was held by the
Court that Congress, when legislating on the civil rights of the inhabitants of the territories, was governed by all those
expressed and implied limitations which rest upon it when dealing with the same subjects within the states.
Without acknowledging it, the Supreme Court abandoned this doctrine of equality in decisions regarding the insular
possessions acquired by the US as a result of the Spanish- American War. The question of the status of civil rights of
the inhabitants of Puerto Rico and the Philippines was related to the larger question of whether the Constitution of its
own force followed the flag, or, in other words, the question of the status of the new possessions.
In a series of cases beginning in 1901, collectively known as the "Insular Cases," 1 the Supreme Court held that the
Constitution did not follow the flag to these extra-continental territories. Without elaborating here the judicial
exegesis and tortuous reasoning by which the Court reached this remarkable and unprecedented conclusion, it decided
seriatim that Puerto Rico and the Philippines belonged to but were not part of the United States within the provisions
of the Constitution, specifically the revenue clauses, the uniformity clause, and trial by jury.
A lengthy concurring opinion by Justice White in the first case of the badly split court (five to four) Court, was the
most important of various opinions because it established a new theory--the so-called "doctrine of incorporation"--that
ultimately became the doctrine of the Court with respect to the constitutional status of the territories acquired by the
United States from Spain. Briefly stated, this doctrine proclaimed that these territories had not been "incorporated"
into the Union, and that therefore the Constitution did not followed the flag to them.
I wish I could clarify what the doctrine of incorporation actually meant in the minds of the justices. It may have
been, although by no means is it clear, that incorporation implied a promise of ultimate statehood. But nowhere in the
Insular Cases did Justice White or his colleagues define the term. Thus, Justice Harlan, dissenting, expressed grave
doubts: "What is meant by such incorporation we are not fully informed, nor are we instructed as to the precise
mode which it is to be accomplished ." And he added that "this idea of 'incorporation' has some occult meaning
which my mind does not apprehend. It is enveloped in some mystery which I am unable to unravel."14
Unfortunately for the clarity of constitutional law, Justice White never explained what constituted incorporation,
despite his extraordinary effort to rewrite American history. Congress gained considerable power from its vagueness,
and it is paradoxical that the principles of equality in the Declaration of Independence (in which the thirteen united
colonies decided "to assume among the powers of the earth, the separate and equal station to which the Laws of
Nature and Nature's God entitle them") and in the Northwest Ordinance of 1787, as well as the basic human rights of
the Constitution, could be denied through the application of such an obscure doctrine.15
UNINCORPORATED TERRITORIES TODAY
Over the years since the Insular Cases, Congress has extended most Constitutional rights to the inhabitants of the
insular territories. But the facts remain that the Insular Cases have never been overruled, that the term "incorporation"
remains obscure in its meaning and has never been defined, that the insular territories of the United States and their
inhabitants do not have equal status with the States and their citizens under the Constitution, and that Congress still
retains the Constitutional power "to dispose of and make all needful Rules and Regulations" with respect to these
territories as Congress alone determines.
NOTES
1 America's Virgin Islands: A History of Human Rights and Wrongs (Durham, N.C.: Carolina Academic Press,
1983), esp. ch. 5; and Civil Liberties in the U.S. Virgin Islands, 1917-1949 (Sunny Isle Center, St. Croix: Antilles
Graphic Arts, 1982), esp. ch. 1.
2 "The United States Virgin Islands and Decolonization of the Eastern Caribbean," The Review of Regional Studies.
Vol. 14, No. 3, Fall 1984, pp. 34-46.
3 Journals of the Continental Congress, 1774-1789 Washington, D.C.: (Library of Congress 1936), Vol. 32, p. 334.
4 William M. Boyd, The Administration of Territories and Island Possessions by the United States, unpublished
Ph.D. dissertation (Ann Arbor, MICH: University of Michigan, 1944), pp. 5-8.
5 William Franklin Willoughby, Territories and Dependencies of the United States: Their Government and
Administration (New York: The Century Co., 1905), p. 28.
6 3 Stat. 200, April 30, 1803 (Convention Between the United States and the French Republic).
7 15 Stat. 252, February 22, 1819 (Treaty of Friendship, Cession of Florida, and Boundaries).
8 Quoted by Whitney T. Perkins, Denial of Empire, The United States and its Dependencies (Leyden: A. W.
Sythoff, 1962), p. 15.
9 15 Stat. 539, June 20, 1867 (Convention for the Cession of the Russian Possessions in North America to the
United States).
10 See, e.g., Willoughby, Territories and Dependencies, pp. 60-63.
11Dred Scott v. Sanford, 19 Howard 393, 446-448 (1857).
12 W. W. Willoughby, The Constitutional Law of the United States, 2nd edition (New York: Baker, Voorhis and
Company, 1929), Vol. 1, p. 476.
13 For detailed analysis of these cases, see my America's Virgin Islands, pp. 99-104, and Civil Liberties in the U.S.
Virgin Islands, pp. 4-17.
14 Downes v. Bidwell, 182 U.S. 244, 389-391.
15 The import of White's opinion was so significant and his reasoning was so laborious and mystic that the
question is inevitably raised of what were his motives for conjuring this doctrine. W. W. Willoughby stressed the
"character" of the population of these territories as having been the most important factor in influencing the doctrine.
The Constitutional Law of the United States, Vol. 1, p. 476. And Frederic R. Coudert suggested that Justice White,
born on a Louisiana plantation and a former Confederate soldier, was concerned with "racial" questions and that
Constitutional rights should not extend automatically to non-white populations of the new possessions. "Evolution of
the Doctrine ofIncorporation," Columbia Law Review, Vol. 36, p. 832 (1926).
FREE ASSOCIATION CRITICAL VIEW
A Paper Prepared by
Roger S. Clark
Conference on the Future Political Status of the U.S. Virgin Islands
February 26-27. 1988
St. Thomas Campus University of the Virgin Islands
Dr. Leary has provided you with a history of the development of free association in the Pacific and the West
Indies. I plan to build on his excellent analysis to discuss two matters.
First, I shall be critical of the relationships worked out for the Federated States of Micronesia, the Marshall Islands
and Palau. What I have to say in this regard is largely devoted to the proposition that General Assembly Resolution
1541 (XV),1 which authoritatively described the status of free association for the first time, should be taken seriously.
It sets out some principles for the assessment of when a relationship is a genuine example of the free association
genre. Judged against those standards, the Micronesian arrangements fail to pass muster.
Second, I want to talk about what seems to me to be the most difficult practical aspect, both in the design and in the
day to day functioning of a free association arrangement, drawing the line between foreign affairs/defense matters
(delegated to the larger power) and those affairs over which control is retained by the freely associated state. Closely
related to this is the matter of dispute settlement and who ultimately calls the shots. These are problems on which
Resolution 1541 (XV) provides only general guidance and I want to contrast the very different ways in which the
matter has been worked out in the case of the two New Zealand associated states, the Cook Islands and Niue and in the
case of the United States Pacific Compacts.
I. THE U.S. "FREE ASSOCIATION" ARRANGEMENTS AND
INTERNATIONAL LAW
Integral to what I am saying in this section is that those who drafted Resolution 1541 (XV) were rightly suspicious
of neocolonial chicanery. They endeavored to provide some prophylactic rules designed to prevent a new status
relationship from being the previous colonial rosebush by another name.3 In United Nations usage, independence is
plainly the preferred outcome of an exercise in self determination. Other outcomes, especially continuing
relationships between the "former" colonial power and what Resolution 1541 (XV) refers to as the "erstwhile Non-
Self-Governing Territory," are to be viewed with suspicion because they may represent the old relationship of
subordination in a new garb.
Resolution 1541 (XV) and its companion, 1514 (XV), the Declaration on the Granting of Independence to Colonial
Countries and Peoples, were treated as international law by the International Court of Justice in the Western Sahara
Case. One can reason to that end, either by regarding 1541 as principles of customary law, or as an authoritative
interpretation of the Charter. I mention this, because I assert the proposition that no matter how enthusiastically or
"voluntarily" people or in this case "a people" agree to some kinds of arrangements, those arrangements may
nonetheless not be enforceable because of some fundamental policies of the legal system. In my home state, New
Jersey, our Supreme Court has recently dramatically reminded us of this in the Baby M, surrogate mother case some
things are not for sale.5
One way of analyzing the implication of a failure to comply with the relevant standards of self-determination is
through Article 53 of the Vienna Convention on the Law of Treaties which provides that a treaty is void if, at the time
of its conclusion, it conflicts with a peremptory norm, a basic rule, of general international law. It is widely accepted
that the principle of self-determination, as understood in Resolutions 1514 (XV) and 1541 (XV), is just such a norm.
Another way of looking at it is this: every legal system contains in its corpus of law a doctrine that some
contractual arrangements are simply void because they contravene community policies. One might mention an
agreement to sell oneself into slavery or an agreement for prostitution, or in New Jersey at least an agreement to sell
one's child as a surrogate mother. The law speaks of those and comparable agreements as "contrary to public policy",
"contra bonos mores", or, in the blunt terms of the United States Uniform Commercial Code, "unconscionable".
My contention is that some aspects of the Micronesian Compacts are unacceptable as being contrary to the
decolonization norms of the United Nations and just plan unconscionable.
The main problem with the Compact arrangements lies in the military contingency deals have on the ability of the
Micronesian entities to opt out of the arrangement of free association. This should not come as a surprise since the
main desire of the United States negotiators throughout the lengthy negotiations was to keep the U.S. military options
open, and independence appeared to those negotiators to be incompatible with those options.
Principle VII (a) of Resolution 1541 (XV) provides, inter alia, that an arrangement of free association "should be
one which respects the individuality and the cultural characteristics of the territory and its peoples, and retains for the
peoples of the territory which is associated with an independent state the freedom to modify the status of that territory
through the expression of their will by democratic means and through constitutional processes". Having been
marginally involved in some of the early work which led to the Cook Islands free association. I recall vividly that this
aspect of Resolution 1541 (XV) was taken seriously8 and interpreted as a requirement that the freely associated state
be free to opt out of the deal and move to complete independence at any time that it might wish.9 This principle had,
indeed, been established in United Nations practice at the time when Resolution 1514 (XV) was still in a stage of
gestation, in the context of the self-determination of the Trust Territory of Togoland under French Administration.
The Commission that examined the matter between 1956 and 1958 on behalf of the General Assembly (when a
continuing relationship between France and Togo was contemplated) did not rule out the possibility that some kind of
status of free association might be acceptable as an act of self-determination. Nevertheless, it expressed the view that
the Togoland entity should have full powers in respect of its own constitution, and power to terminate the arrangement
unilaterally.10
The drafting of the Micronesian Compacts is complex, which contrasts sharply with the arrangements between New
Zealand on the one hand and the Cooks and Niue on the other. These are characterized by an almost total absence of
any written agreement setting out the deal.11 The Compacts went through many changes. It should be recalled that
the version approved by Congress in the case of the Marshall Islands and the Federated States of Micronesia was a
version originally signed by the Marshalls on 30 May 1982, by Palau on 26 August 1982 and by the Federated States
on 1 October 1982. That version was approved in referenda in the Federated States and the Marshalls in 1983 but
failed to achieve the necessary 75% majority required by the Constitution of Paulau. A later version signed by Palau
in 1986 was defeated several times in later referenda and has now become the subject of a disputed and I believe
invalid12 effort to amend the Palau Constitution in order to make approval possible by a majority of less than 75%.
The 1982 version of the Compact was significantly different from an earlier 1980 version insofar as the power of
the Micronesian entities to terminate unilaterally was concerned.13 In a 1984 Palau version it became even more
difficult for Palau to opt out than it had been in the 1982 version and the same language is carried through into the
1986 version.14
In the 1980 version, there was power under Section 443 of the Compact for the three entities to terminate, following
a plebiscite on the subject. In the event of such a termination, pursuant to Section 453, certain provisions of the
Compact (primarily those concerning the security and defense powers of the United States) would remain in force
until the fifteenth anniversary of the effective date of the Compact "and thereafter as mutually agreed". The words
"and thereafter as mutually agreed" meant that unless both sides agreed, the arrangements would then come to a
complete end.15
A substantial change occurred in the package in 1982.16 Section 453 still read that in the case of a termination by
the Marshall Islands or the Federated States the security and defense relations would continue in force for fifteen years
and thereafter as mutually agreed. In the case of Palau, however, the period now became fifty years. Moreover, in
respect of the Federated States and the Marshalls,17 the Compact was now accompanied by separate mutual security
pacts between the United States and these two entities.18 The most significant provisions of these treaties, which
would come into effect upon the termination of the Compact, are those which would obligate the United States to
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