[House Hearing, 111 Congress]
[From the U.S. Government Publishing Office]
THE PROPOSED VIRGIN ISLANDS CONSTITUTION FROM THE FIFTH CONSTITUTIONAL
CONVENTION
=======================================================================
OVERSIGHT HEARING
before the
SUBCOMMITTEE ON INSULAR AFFAIRS,
OCEANS AND WILDLIFE
of the
COMMITTEE ON NATURAL RESOURCES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED ELEVENTH CONGRESS
SECOND SESSION
__________
Wednesday, March 17, 2010
__________
Serial No. 111-49
__________
Printed for the use of the Committee on Natural Resources
Available via the World Wide Web: http://www.gpoaccess.gov/congress/
index.html
or
Committee address: http://resourcescommittee.house.gov
----------
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Washington, DC 20402-0001
COMMITTEE ON NATURAL RESOURCES
NICK J. RAHALL, II, West Virginia, Chairman
DOC HASTINGS, Washington, Ranking Republican Member
Dale E. Kildee, Michigan Don Young, Alaska
Eni F.H. Faleomavaega, American Elton Gallegly, California
Samoa John J. Duncan, Jr., Tennessee
Frank Pallone, Jr., New Jersey Jeff Flake, Arizona
Grace F. Napolitano, California Henry E. Brown, Jr., South
Rush D. Holt, New Jersey Carolina
Raul M. Grijalva, Arizona Cathy McMorris Rodgers, Washington
Madeleine Z. Bordallo, Guam Louie Gohmert, Texas
Jim Costa, California Rob Bishop, Utah
Dan Boren, Oklahoma Bill Shuster, Pennsylvania
Gregorio Sablan, Northern Marianas Doug Lamborn, Colorado
Martin T. Heinrich, New Mexico Adrian Smith, Nebraska
George Miller, California Robert J. Wittman, Virginia
Edward J. Markey, Massachusetts Paul C. Broun, Georgia
Peter A. DeFazio, Oregon John Fleming, Louisiana
Maurice D. Hinchey, New York Mike Coffman, Colorado
Donna M. Christensen, Virgin Jason Chaffetz, Utah
Islands Cynthia M. Lummis, Wyoming
Diana DeGette, Colorado Tom McClintock, California
Ron Kind, Wisconsin Bill Cassidy, Louisiana
Lois Capps, California
Jay Inslee, Washington
Joe Baca, California
Stephanie Herseth Sandlin, South
Dakota
John P. Sarbanes, Maryland
Carol Shea-Porter, New Hampshire
Niki Tsongas, Massachusetts
Frank Kratovil, Jr., Maryland
Pedro R. Pierluisi, Puerto Rico
Vacancy
James H. Zoia, Chief of Staff
Rick Healy, Chief Counsel
Todd Young, Republican Chief of Staff
Lisa Pittman, Republican Chief Counsel
------
SUBCOMMITTEE ON INSULAR AFFAIRS, OCEANS AND WILDLIFE
MADELEINE Z. BORDALLO, Guam, Chairwoman
HENRY E. BROWN, JR., South Carolina, Ranking Republican Member
Dale E. Kildee, Michigan Don Young, Alaska
Eni F.H. Faleomavaega, American Jeff Flake, Arizona
Samoa Doug Lamborn, Colorado
Frank Pallone, Jr., New Jersey Robert J. Wittman, Virginia
Gregorio Sablan, Northern Marianas John Fleming, Louisiana
Donna M. Christensen, Virgin Jason Chaffetz, Utah
Islands Bill Cassidy, Louisiana
Diana DeGette, Colorado Doc Hastings, Washington, ex
Ron Kind, Wisconsin officio
Lois Capps, California
Carol Shea-Porter, New Hampshire
Frank Kratovil, Jr., Maryland
Pedro R. Pierluisi, Puerto Rico
Nick J. Rahall, II, West Virginia,
ex officio
Vacancy
------
CONTENTS
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Page
Hearing held on Wednesday, March 17, 2010........................ 1
Statement of Members:
Bordallo, Hon. Madeleine Z., a Delegate in Congress from Guam 1
Prepared statement of.................................... 3
Christensen, Hon. Donna M., a Delegate in Congress from the
Virgin Islands............................................. 5
Young, Hon. Don, the Representative in Congress for the State
of Alaska.................................................. 6
Prepared statement of.................................... 6
Statement of Witnesses:
Brady, Douglas A., Delegate, Fifth Constitutional Convention. 57
Prepared statement of.................................... 58
Bryan, Adelbert M., Delegate, Fifth Constitutional Convention 38
Prepared statement of.................................... 40
Cedarbaum, Jonathan G., Deputy Assistant Attorney General,
U.S. Department of Justice................................. 7
Prepared statement of.................................... 9
de Jongh, Hon. John P., Jr., Governor, U.S. Virgin Islands... 15
Prepared statement of.................................... 18
Emanuel, Gerard M., Delegate, Fifth Constitutional Convention 41
Prepared statement of.................................... 43
Hassell-Habtes, Lois, Ph.D., Delegate, Fifth Constitutional
Convention................................................. 51
Prepared statement of.................................... 52
James, Hon. Gerard Luz Amwur, II, President, Fifth
Constitutional Convention.................................. 25
Prepared statement of.................................... 27
Petersen, Eugene A., DVM, Delegate, Fifth Constitutional
Convention................................................. 53
Prepared statement of.................................... 55
Richards, Hon. Usie R., Minority Leader, 28th Legislature of
the Virgin Islands......................................... 20
Prepared statement of.................................... 23
OVERSIGHT HEARING ON ``THE PROPOSED VIRGIN ISLANDS CONSTITUTION FROM
THE FIFTH CONSTITUTIONAL CONVENTION.''
----------
Wednesday, March 17, 2010
U.S. House of Representatives
Subcommittee on Insular Affairs, Oceans and Wildlife
Committee on Natural Resources
Washington, D.C.
----------
The Subcommittee met, pursuant to call, at 2:10 p.m. in
Room 1324, Longworth House Office Building, Hon. Madeleine
Bordallo presiding.
Present: Representatives Bordallo, Sablan, Christensen,
Pierluisi, Young, and Flake.
Ms. Bordallo. Good afternoon, everyone. For those who are
standing in the back, we do have chairs on the lower dais here.
You are more than welcome to be seated. The hearing by the
Subcommittee on Insular Affairs, Oceans, and Wildlife will come
to order. The Subcommittee is meeting today to receive
testimony on the proposed constitution of the United States
Virgin Islands submitted by the Fifth Virgin Islands
Constitutional Convention.
While Committee Rule 4(g) limits opening statements to the
Chair and the Ranking Minority Member, in a few minutes, I
intend to also recognize my good friend, the gentlewoman from
the Virgin Islands, Dr. Christensen, to make a few opening
remarks and to introduce her constituents who are here with us
today. If any other Members have statements, they can be
included in the hearing record under unanimous consent. I now
will recognize myself for an opening statement.
STATEMENT OF HON. MADELEINE Z. BORDALLO, A DELEGATE IN CONGRESS
FROM THE TERRITORY OF GUAM
Ms. Bordallo. The United States Virgin Islands and the
congressional district I have the privilege to represent here
in Congress, the Territory of Guam, are the only two United
States jurisdictions that are not governed by a constitution
written by their people. Both areas are, in fact, governed by
an organic act that was written by Congress.
To more firmly enable both jurisdictions to write their own
constitutions, Congress in 1976 enacted legislation, sponsored
by the former Virgin Islands and Guam delegates, to authorize
the people of the Virgin Islands and Guam to convene
constitutional conventions and write their own local
constitutions. The law, which was U.S. Public Law 94-584, sets
out a process for Federal review of any proposed constitution,
including 60-day periods for both Presidential and
congressional review, respectively.
The Virgin Islands has on four previous occasions written
constitutions pursuant to local law and two in accordance with
the U.S. Public Law 94-584. The first attempt was in 1964. It
was not approved in its entirety by Congress, and the second in
1971 was never submitted to Congress because of the low level
of voter support when it was submitted to the people of the
territory for their approval.
The third draft constitution was submitted to Congress in
1978, but was rejected by the voters when it was returned to
them without having been amended. A fourth proposed
constitution was drafted in 1980. Congress approved that
document via a joint resolution in 1981, but it too was
rejected by the voters, which brings us to the current document
before us today.
The law that authorized the writing of a constitution by
the Virgin Islands and Guam empowers Congress with the ability
to amend or clarify the said constitution should we see fit.
Congress would also allow a proposed constitution to be
returned to the residents of either territory for approval by
the voters without changing the document in any way, as was
done by the 96th Congress with a third proposed Virgin Islands
constitution.
In submitting the fifth proposed constitution to Congress,
President Obama included for our consideration a legal
memorandum from the United States Department of Justice which
outlines at least eight areas in the proposed constitution that
the Department believes should either be removed from the
constitution or modified. We understand the witness for the
Department of Justice today will elaborate on this further.
The principal question confronting this committee and
Congress is whether or not we will be able to modify or amend
the draft constitution to conform to the recommendations of the
Justice Department. In examining this question, we are mindful
that the law authorizing this process for the drafting and the
adoption of such constitution requires Congress to act within
60 days.
Regrettably, this window of time does not reflect the
current realities as to the pace at which legislation of this
nature would typically advance through the Congress,
particularly with respect to recent experiences associated with
bills pending in the other body, the U.S. Senate.
Another consideration we are called to take into account is
the amount that any congressional modification would have on
the views of the voters in the Virgin Islands, whose
constitution this is, and who will ultimately be called upon to
approve or disapprove of it via referendum. In considering
these circumstances, I am mindful of the words shared by the
former Chairman of the Senate Energy and Natural Resources
Committee, The Honorable J. Bennett Johnston of Louisiana, who
when speaking at the hearing to approve the fourth proposed
Virgin Islands constitution, said rather simply and
straightforwardly, and I quote, ``This constitution should be
the product of the people of the Virgin Islands, and I believe
that we should defer to them,''
His words are as relevant today with respect to the fifth
constitution before us as they were with respect to the fourth
constitution before Congress in 1981. Both documents have risen
under the same process, so we must therefore take care not to
substitute our judgment for those of the people who were
elected to draft the constitution on behalf of the people who
elected them, less the principle of self-government be trampled
upon.
As we hear from our witnesses today, including from a
number of whom helped draft the constitution, it is my hope
that a consensus will emerge on the best way forward, given the
time constraints we are under and the limitations in getting
legislation here in Congress duly acted upon without delay by
the other body.
I know that the people of the Virgin Islands want to have
their own constitution, as evidenced by the decades worth of
attempts that they have made to secure one. While this
constitution may not be a perfect document, and this committee
will go on record acknowledging its legal imperfections, it
nonetheless is a product of a significant amount of hard work
and, as such, deserves our most serious and careful attention,
as well as that of the people of the Virgin Islands, who will
ultimately be called upon to approve or disapprove it,
irrespective of whether Congress takes any action on it or not.
And finally, I want to thank the Governor and the other
leaders who have submitted testimonies for our consideration. I
also want to extend my sincerest welcome to those who have
traveled from the Virgin Islands to be with us today. And I
also acknowledge the steadfast leadership provided by your
Member of Congress, our good friend, the distinguished
gentlewoman, Dr. Donna Christensen. She is an ardent guardian
of self-government and seeks at every opportunity to protect
and advance the fundamental political rights of the people of
the territories.
This committee continues to value her leadership on these
issues, and I know we will deliberate on this particular matter
with appropriate deference to her insight. And so with that, we
look forward to the testimonies.
[The prepared statement of Chairwoman Bordallo follows:]
Statement of The Honorable Madeleine Z. Bordallo, Chairwoman,
Subcommittee on Insular Affairs, Oceans and Wildlife
The Subcommittee is meeting today to hear testimony on the proposed
constitution of the United States Virgin Islands submitted by the 5th
Virgin Islands Constitutional Commission.
The United States Virgin Islands, like the Congressional District I
have the privilege to represent here in Congress--Guam--are the only
two U.S. jurisdictions that are not governed by a Constitution written
by the people. Both areas are governed by an Organic Act that was
written by Congress.
To more firmly enable both jurisdictions to write their own
Constitutions, Congress, in 1976, enacted legislation sponsored by
former Virgin Islands Delegate, Congressman Ron de Lugo, and one of my
predecessors, the late Congressman Antonio B. Won Pat, to authorize the
people of the Virgin Islands and Guam to convene constitutional
conventions and write their own local constitutions. The law, U.S.
Public Law 94-528, sets out a process for federal review of any
proposed constitution, including 60 day periods for both Presidential
and Congressional review, respectively.
The Virgin Islands has on four previous occasions, written
constitutions, two pursuant to local law and two in accordance with
U.S. Public Law 94-528. The first attempt, in 1964 was not approved in
its entirety by Congress and the second in 1971 was never submitted to
Congress because of the low level of voter support when it was
submitted to the people of the territory for their approval. The third
draft constitution was submitted to Congress in 1978 but was rejected
by the voters when it was returned to them without having been amended.
A fourth proposed constitution was drafted in 1980. Congress approved
that document via a joint resolution in 1981 but it too was rejected by
the voters: which brings us to the current document before us today.
The law that authorized the writing of a Constitution by the Virgin
Islands and Guam empowers Congress with the ability to amend or clarify
the said constitutions should we see fit. Congress could also allow a
proposed constitution to be returned to the residents of either
territory for approval by the voters without changing the document in
any way as was done by the 96th Congress with the third proposed Virgin
Islands constitution.
In submitting the fifth proposed constitution to Congress,
President Obama included for our consideration a legal memorandum from
the United States Department of Justice which outlines at least eight
areas in the proposed constitution that the Department believes should
either be removed from the constitution or modified. We suspect the
witness for the Department of Justice will elaborate on this further.
The principal question confronting this Committee and Congress is
whether or not we will be able to modify or amend the draft
constitution to conform to the recommendations of the Justice
Department. In examining this question we are mindful that the law
authorizing this process for drafting and adoption of such Constitution
requires Congress to act within 60 days. Regrettably, this window of
time does not reflect the current realities as to the pace at which
legislation of this nature would typically advance through Congress,
particularly with respect to recent experiences associated with bills
pending in the other body.
Another consideration we are called to take into account is the
impact any Congressional modification would have on the view of the
voters in the Virgin Islands whose Constitution this is, and who will
ultimately be called upon to approve or disapprove of it via
referendum. In considering these circumstances, I am mindful of the
words shared by the former Chairman of the Senate Energy and Natural
Resources Committee, The Honorable J. Bennett Johnston of Louisiana,
who, when speaking at the hearing to approve the fourth proposed Virgin
Islands constitution, said rather simply and straightforwardly--quote--
``This constitution should be the product of the people of the Virgin
Islands and I believe that we should defer to them.'' End quote.
His words are as relevant today with respect to the fifth
constitution before us as they were with respect to the fourth
constitution before Congress in 1981; both have risen under the same
process. We must, therefore, take care not to substitute our judgment
for those of the people who were elected to draft the constitution on
behalf of the people who elected them, lest the principle of self-
government be trampled upon.
As we hear from our witnesses today, including a number of whom
helped draft the constitution, it is my hope that a consensus will
emerge as to the best way forward given the time constraints we are
under and the limitations in getting legislation duly acted upon
without delay by the other body.
I know that the people of the Virgin Islands want to have their own
constitution as evidenced by the decades worth of attempts they have
made to secure one. While this constitution may not be a perfect
document, and this committee will go on record acknowledging its legal
imperfections, it nonetheless is a product of a significant amount of
hard work and as such deserves our most serious, careful attention as
well as that of the people of the Virgin Islands who will ultimately be
called upon to approve or disapprove it irrespective of whether
Congress takes any action on it or not.
Finally, I want to thank the Governor and other leaders who have
submitted testimony for our consideration. I also want to extend my
sincerest welcome to those that have traveled from the Virgin Islands
to be with us today. I also want to acknowledge the steadfast
leadership provided by your Member of Congress, our good friend, the
distinguished gentlewoman, Dr. Donna Christensen. She is an ardent
guardian of self-government and seeks at every opportunity to protect
and advance the fundamental, political rights of the people of the
territories. This Committee will continue to value her leadership on
these issues, and I know will deliberate on this particular matter with
appropriate deference to her insight. With that, I look forward to the
testimonies.
______
Ms. Bordallo. I would like at this time now to recognize
the Representative from the Virgin Islands, The Honorable Donna
Christensen.
STATEMENT OF HON. DONNA CHRISTENSEN, A DELEGATE IN CONGRESS
FROM THE TERRITORY OF THE VIRGIN ISLANDS
Mrs. Christensen. Thank you, Madame Chair, and thank you
for holding this hearing on the proposed constitution for the
United States Virgin Islands. I just regret that we were unable
to hold this hearing in the territory as first planned. It is
my pleasure also to welcome the Governor of the U.S. Virgin
Islands, The Honorable John P. deJongh, Jr., in his first
appearance before our Subcommittee, as well as the Minority
Leader of the 28th Legislature of the Virgin Islands, Senator
Usie Richards, and the President of the Fifth Constitutional
Convention, Gerard Luz James II, and all of the other delegates
of the Fifth Constitution who are here today, and their staff,
to discuss the draft document before Congress.
Welcome also to Deputy Assistant Attorney General Jonathan
Cedarbaum, and all of the Virgin Islanders who have joined us
here in the audience to witness the hearing, as well as those
who are listening on the web, television, or radio in the
Virgin Islands or elsewhere.
It has been almost 30 years since the people of the Virgin
Islands last embarked upon the process of drafting a
constitution to oversee the governance of our lives as a proud
people of the United States Virgin Islands. As we are here to
consider this proposed Fifth Constitution, many of the issues
that were of concern 30 years ago are still of concern today.
In particular, some sores that have been festering for all
of those years have been opened once again, and so I am not,
and none of us should be, surprised that this opportunity
became one to attempt to address historic injustices and
inequities, valued ancestry, culture, and tradition, and some
of the yet unresolved issues surrounding political status.
One may legitimately argue whether they properly belonged
in this convention, where a constitution was being drafted for
an incorporated territory. But when a people embark on an
effort of self-determination at any level, some of these issues
will arise. I acknowledge and appreciate that as elected
delegates to the constitution, each has worked hard to reflect
the wishes of the Virgin Islands electorate. And while there
may be differences and disagreements, I feel their goal has
always been to craft a document that reflects the collective
views of the majority of the people of the Virgin Islands.
On the other hand, though, I am conflicted because I do
fundamentally believe that we owe the people of the Virgin
Islands a document that is constitutionally sound within the
context of our current relationship with the United States of
America, as dictated by the authorizing legislation. The
Justice Department representative will give its review findings
in this regard.
But I also respect the process by which all of the people
of the Virgin Islands who are eligible had the opportunity to
vote and elect 30 individuals who they vested with the
responsibility of creating a document that would reflect their
wishes, positions, hopes, and aspirations. And as happens here,
the vote of the majority determines the outcome.
The Subcommittee and I look forward to hearing your
thoughts, reflections, and positions on the process and the
provisions each of you deem important to the document. This
Congress will give every consideration to what is presented to
us here today and to the written testimony that will be
submitted. It is my hope that this fifth attempt at drafting a
constitution for the United States Virgin Islands, amended or
not by us, or amended or not by a reconvened convention, that
it will pass muster with the people of the Virgin Islands, and
that we will have our own constitution at long last.
At the point at which we adopt this constitution, or not,
it seems clear to me that we can and must then revisit the
issue of status. This process has shown the benefits and
limitations of being an incorporated territory. Surely it can
be the impetus and the basis for us to move forward with that
more complex discussion. I am grateful to our Chairwoman for
her legislation, which seeks to provide funding to help us with
that process.
Again, I want to welcome everyone who is here to testify on
this issue of great importance to the people of the Virgin
Islands. I look forward to your testimony. And, Madame Chair,
at this time I would like to ask unanimous consent to enter
statements from Caroline Brown and Gaylord Sprauve to be
entered into the record.
Ms. Bordallo. No objection, so ordered.
Mrs. Christensen. Thank you.
[NOTE: The statements submitted for the record have been
retained in the Committee's official files.]
Ms. Bordallo. I thank the gentlelady from the Virgin
Islands for her statement. And now I would like to recognize
the acting Ranking Member from Alaska, the gentleman Mr. Young.
STATEMENT OF HON. DON YOUNG, A REPRESENTATIVE IN CONGRESS FROM
THE STATE OF ALASKA
Mr. Young. Thank you, Madame Chairman, and thank you for
having these hearings. I want to submit for the record my
statement. I am here to listen to the witnesses and ask
questions down the line. With that, Madame Chairman, I will
yield back the balance of my time.
Ms. Bordallo. No objection, so ordered to enter your
statement.
[The prepared statement of Mr. Young follows:]
Statement of The Honorable Don Young, a Representative in Congress
from the State of Alaska
Madam Chairwoman, good afternoon. Today's hearing topic is the
draft U.S. Virgin Islands constitution. This is the 5th draft
constitution developed by a U.S. Virgin Islands Constitutional
Convention and many of the witnesses here today were members of this
Convention and can give us some insight into the development of the
constitution.
The U.S. Constitution, specifically, the Territories Clause, gives
Congress the authority to govern territories. However, this does not
mean that this authority should remain in perpetuity. Congress should
assist the territories in developing and achieving to the greatest
extent possible, as adopted and agreed to by their populace,
territorial self-governance.
Congress has passed an Organic Act and other laws for the U.S.
Virgin Islands, which have started the process of greater self-
governance in the territory. However, these laws have been drafted by
Congress and can only be changed by Congress. A constitution, if
adopted by the U.S. Virgin Islands electorate, would allow the
territory greater self-governance through its ability to amend its
constitution based on territorial needs, without Congressional action.
However, there are concerns with the submitted draft constitution.
There are questions as to whether the document sufficiently recognizes
U.S. sovereignty and the supremacy of certain provisions of the
Constitution, treaties, and laws of the United States. In addition,
there are a number of sections in the constitution that raise equal
protection concerns.
Congress, under Public Law 94-584, gave itself 60 legislative days
to amend, modify or approve a constitution developed by U.S. Virgin
Islands. If we do not act within this time frame, the constitution is
deemed to be approved. I want to stress, that if Congress does not act,
it should not be interpreted as an endorsement of any of the provisions
that have raised constitutional concerns. If the U.S. Virgin Islands
electorate votes to adopt the constitution, the concerns raised by the
Justice Department will need to be resolved through federal
legislation.
Thank you, Madam Chairwoman.
______
Ms. Bordallo. And I would just like to introduce the
gentleman from Puerto Rico, Mr. Pedro Pierluisi. There will be
questions later, and also Mr. Kilili Sablan from the CNMI. Both
have joined us.
And now we begin with our first group of witnesses, Mr.
Jonathan G. Cedarbaum, Deputy Assistant Attorney General,
Office of Legal Counsel, United States Department of Justice.
And the next witness is The Honorable John P. deJongh, Governor
of the United States Virgin Islands. Welcome, Governor. And The
Honorable Usie R. Richards, the Minority Leader of the 28th
Legislature of the Virgin Islands. I welcome you as well. And
The Honorable Gerard Luz James II, the President of the Fifth
Constitutional Convention. And coincidentally, I would note
that Mr. James and I served as Lieutenant Governors together in
the 1990s. And welcome to you, Lieutenant Governor.
I want to thank you all and to remind you that there is a
red timing light on the table, which will indicate when your
time is concluded. And we would appreciate your cooperation in
complying with the limits that have been set, as we have many
witnesses to hear from today. But be assured that your full
written statement will be submitted for the hearing record.
I would like to mention to the Governors and the elected
officials of the Virgin Islands, if you go a few minutes over
the five minutes, we will not mind that. I was once a
Lieutenant Governor.
Mr. Cedarbaum, we will begin with your testimony. Thank you
for your presence today on behalf of the Administration, and
you now may begin.
STATEMENT OF JONATHAN G. CEDARBAUM, DEPUTY ASSISTANT ATTORNEY
GENERAL, OFFICE OF LEGAL COUNSEL, U.S. DEPARTMENT OF JUSTICE
Mr. Cedarbaum. Thank you, Chairwoman Bordallo, acting
Ranking Member Young, and other members of the Subcommittee. My
name is Jonathan Cedarbaum. I am a deputy assistant attorney
general in the office of legal counsel at the Department of
Justice. I am honored to appear before you this afternoon to
discuss the proposed constitution for the U.S. Virgin Islands,
which was recently drafted by a constitutional convention in
the Virgin Islands.
As you know, and as the Chairwoman indicated, Public Law
94-584 establishes a process by which the people of the U.S.
Virgin Islands can adopt a constitution for their own local
self-government. In accord with that process, the Fifth
Constitutional Convention of the U.S. Virgin Islands drafted a
proposed constitution last year and submitted it to the
Governor of the Virgin Islands. The Governor forwarded the
proposed constitution to President Obama. President Obama then
transmitted the proposed constitution to Congress with his
comments.
As President Obama stated in his letter of transmittal, the
electorate of the Virgin Islands and its governmental
representatives are to be commended for their continuing
commitment to increasing self-government and the rule of law.
As the President also indicated in his letter of transmittal,
in carrying out his responsibilities under Public Law 94-584,
he asked the Department of Justice, in consultation with the
Department of the Interior, to write its views about the
proposed constitution.
The Department provided those views in the form of a
memorandum from the Assistant Attorney General for Legislative
Affairs to the Office of Management and Budget, and the
President attached the copy of the Department's memorandum to
his letter of transmittal.
As the President noted, and as the Chairwoman noted, the
Department of Justice's memorandum analyzed several features of
the proposed constitution, including, first, the absence of an
express recognition of United States sovereignty and the
supremacy of Federal law; second, provisions for a special
election on the USVI's territorial status; third, provisions
conferring legal advantages on certain groups defined by place
and timing of birth, timing of residency, or ancestry; fourth,
residence requirements for certain offices; fifth, provisions
guaranteeing legislative representation of certain geographic
areas; sixth, provisions addressing territorial waters and
marine resources; seventh, imprecise language in certain
provisions of the proposed constitution's bill of rights;
eighth, the possible need to repeal certain Federal laws if the
proposed USVI constitution were adopted; and ninth, the effect
of congressional action or inaction on the proposed
constitution.
I would be happy to address any of these issues with you
this afternoon. I should emphasize that our review was
restricted to legal issues in light of the requirements of
Public Law 94-548. The Department's memorandum does not address
any questions of policy. Because I trust you have had some
opportunity to review the Department's memorandum in advance of
today's hearing, I will not attempt to summarize it in this
opening statement. I would just briefly highlight three issues
to which the Department suggested that changes in the proposed
constitution might be considered.
First, several provisions of the proposed constitution give
special advantages to native Virgin Islanders and ancestral
native Virgin Islanders. These provisions raise serious
concerns under the Equal Protection Guarantee of the U.S.
Constitution, which has been made applicable to the Virgin
Islands by the revised Organic Act. Because we find it
difficult to discern a legitimate governmental purpose that
would be rationally advanced by these provisions, we recommend
that they be removed.
Second, the proposed constitution imposes substantial
residence requirements on a number of USVI offices. In
particular, it requires the Governor and Lieutenant Governor,
judges and justices of the USVI Supreme Court and lower court,
and the attorney general, inspector general, and members of the
Political Status Advisory Commission to have been USVI
residents for periods ranging from 5 to 15 years. These
requirements, particularly those requiring more than five years
raise potential equal protection concerns. Thus we would
suggest that consideration be given to shortening their
duration.
Third, Article 12, Section 2 of the proposed constitution
concerning preservation of natural resources, makes a number of
assertions about USVI sovereignty or control over waters and
submerged lands. The intended meaning and effect of this
provision are not entirely clear, but to the extent that its
reference to a claim of sovereignty over coastal waters is
intended to derogate from the sovereignty of the United States
over those waters, it is inconsistent with Federal law and
should be removed or modified.
In addition, by statute, the United States has, subject to
certain exceptions, conveyed to the USVI its right, title, and
interest in submerged lands, and mineral rights in those
submerged lands out to three miles. Federal law also reserves
to the United States exclusive management rights over fisheries
within the exclusive economic zone. The proposed constitution
must be made consistent with these Federal statutory mandates.
Finally, while the last sentence of Article 12, Section 2
acknowledges that the rights it addresses are alienable, we
recommend modifying that language to make clearer that these
matters are subject to Congress's plenary authority.
I would like to emphasize that my statement has focused on
three aspects of the proposed constitution that we believe
Congress should consider revising because we believe that
discussing those provisions would be most helpful to the
Subcommittee as it considers what actions to take in response
to the transmittal of the proposed constitution.
Let me close by again echoing President Obama's letter of
transmittal and commending the electorate of the Virgin Islands
and its governmental representatives in their continuing
commitment to increasing self-government and the rule of law. I
would be happy to address any questions you may have, and I
would be grateful if the Department's memorandum could be
inserted in the record of this hearing immediately following
this statement.
Ms. Bordallo. No objection to that. So ordered.
[The prepared statement of Mr. Cedarbaum follows:]
Statement of Jonathan G. Cedarbaum, Deputy Assistant Attorney General,
U.S. Department of Justice
Chairwoman Bordallo, Ranking Member Brown, Members of the
Subcommittee:
My name is Jonathan Cedarbaum. I am a Deputy Assistant Attorney
General in the Office of Legal Counsel at the Department of Justice. I
am honored to appear before you this afternoon to discuss the proposed
constitution for the U.S. Virgin Islands (``USVI'') recently drafted by
a constitutional convention in the Virgin Islands.
As you know, Public Law 94-584 establishes a process by which the
people of the U.S. Virgin Islands can adopt a constitution for their
local self-government. In accord with that process, the Fifth
Constitutional Convention of the U.S. Virgin Islands drafted a proposed
constitution last year and submitted it to the Governor of the Virgin
Islands. The Governor forwarded the proposed constitution to President
Obama. President Obama then transmitted the draft. Constitution to the
Congress with his comments. As the President indicated in his letter of
transmittal, in carrying out his responsibilities under Public Law 94-
584 he asked the Department of Justice, in consultation with the
Department of the Interior, to provide its views of the proposed
constitution. The Department provided those views in the form of a
memorandum from the Assistant Attorney General for Legislative Affairs
to the Office of Management and Budget, and the President attached a
copy of the Department's memorandum to his letter of transmittal.
As the President also noted, the Department of Justice's memorandum
analyzed several features of the proposed constitution, including: (1)
the absence of an express recognition of United States sovereignty and
the supremacy of federal law; (2) provisions for a special election on
the USVI's territorial status; (3) provisions conferring legal
advantages on certain groups defined by place and timing of birth,
timing of residency, or ancestry; (4) residence requirements for
certain offices; (5) provisions guaranteeing legislative representation
of certain geographic areas; (6) provisions addressing territorial
waters and marine resources; (7) imprecise language incertain
provisions of the proposed constitution's bill of rights; (8) the
possible need to repeal certain federal laws if the proposed USVI
constitution is adopted; and (9) the effect of congressional action or
inaction on the proposed constitution. I would be happy to address any
of these issues with you this afternoon. I should emphasize that our
review was limited to a review of legal issues in light of the
requirements established by Public Law 94-548. The Department's
memorandum does not address any questions of policy.
Because I trust you have had some opportunity to review the
Department's memorandum in advance of today's hearing, I will not
attempt to summarize in this opening statement the analysis it provides
of all of these issues. I would just briefly discuss the three issues
as to which the Department suggested that changes in the proposed
constitution should be considered.
A. Provisions Concerning ``Native Virgin Islanders'' and ``Ancestral
Native Virgin Islanders''
First, several provisions of the proposed constitution give special
advantages to ``Native Virgin Islanders'' and ``Ancestral Native Virgin
Islanders.'' These provisions raise serious concerns under the equal
protection guarantee of the U.S. Constitution, which has been made
applicable to the USVI by the Revised Organic Act, see 48 U.S.C.
Sec. 1561 (2006). Because we find it difficult to discern a legitimate
governmental purpose that would be rationally advanced by these
provisions conferring legal advantages on certain groups defined by
place and timing of birth, timing of residency, or ancestry, we
recommend that these provisions be removed from the proposed
constitution.
In Article III, section 2, the proposed constitution would define
``Native Virgin Islander'' to mean (1) ``a person born in the Virgin
Islands after June 28, 1932,'' the enactment date of a statute
generally extending United States citizenship to USVI natives residing
in United States territory as of that date who were not citizens or
subjects of any foreign country, see Act of June 28, 1932, ch. 283, 47
Stat. 336 (now codified at 8 U.S.C. 1406(a)(4) (2006)); and (2) a
``descendant[] of a person born in the Virgin Islands after June 28,
1932.'' ``Ancestral Native Virgin Islander'' would be defined as: (1)
``a person born or domiciled in the Virgin Islands prior to and
including June 28, 1932 and not a citizen of a foreign country pursuant
to 8 U.S.C. [Sec. ] 1406,'' the statute governing United States
citizenship of USVI residents and natives; (2) ``descendants'' of such
individuals; and (3) ``descendants of an Ancestral Native Virgin
Islander residing outside of the U.S., its territories and possessions
between January 17, 1917 and June 28, 1932, not subject to the
jurisdiction of the U.S. and who are not a citizens [sic] or a subjects
[sic] of any foreign country.'' Proposed Const, art. III, Sec. 1.
1
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\1}\The third prong of this definition appears circular insofar as
it defines ``Ancestral Native Virgin Islander'' in terms of descendants
of ``Ancestral Native Virgin Islanders'' (a category of people already
encompassed by the definition's second prong), and it is also
grammatically ambiguous with respect to whether the qualifying terms
modify the ``descendants'' or the ``Ancestral Native Virgin Islander''
from whom they are descended.
We think it clear that these classifications could not be
considered tribal within the meaning of the Indian Commerce Clause,
U.S. Const. art. I, Sec. 8, el. 3, that is, as falling within the
established body of law defining the special relationship between
aboriginal peoples of the United States and the Federal Government. In
any event, that Clause empowers Congress, not the government of the
Virgin Islands.
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1. Property Tax Exemption for Ancestral Native Virgin Islanders
Under the proposed constitution, the USVI legislature would be
authorized to impose real property taxes, but ``[n]o Real Property tax
shall be assessed on the primary residence or undeveloped land of an
Ancestral Native Virgin Islander.'' Proposed Const. art. XI, Sec. 5(g).
The property tax exemption for Ancestral Native Virgin Islanders raises
serious equal protection concerns. The Equal Protection Clause of the
Fourteenth Amendment, which has been extended to the USVI by statute,
see 48 U.S.C. Sec. 1561 (2006), 2 generally requires only
that legislative classifications be rationally related to a legitimate
governmental purpose. See, e.g., Heller v. Doe, 509 U.S. 312, 319-20
(1993). But the proposed constitution does not identify a legitimate
governmental purpose that the real property tax exemption for Ancestral
Native Virgin Islanders would further, and it is difficult for us to
discern a legitimate governmental purpose that the exemption could be
said to further.
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\2}\See also, e.g., Government of the Virgin Islands v. Davis, 561
F.3d 159, 163-64 n.3 (3d. Cir. 2009) (recognizing applicability of the
Fifth and Fourteenth Amendment Due Process Clauses to the USVI under
the Revised Organic Act); Hendrickson v. Reg 0 Co., 657 F.2d 9, 13 n.2
(3d Cir. 1981) (same); Moolenaar v. Todman, 433 F.2d 359, 359 (3d Cir.
1970) (per curiam) (requiring adherence to ``the constitutional
requirements of equal protection of the law'' in the USVI).
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The definition of Ancestral Native Virgin Islander appears to
combine two sub-classes: (i) individuals born or domiciled in the USVI
before a certain date and (ii) descendants of such persons. The first
sub-class may include many long-time residents of the USVI, but to the
extent the real property tax exemption is designed to benefit such
long-time residents it raises serious equal protection concerns. The
Supreme Court has held that statutes limiting benefits, including
property tax exemptions, to citizens residing in a jurisdiction before
a specified date are not rationally related to any legitimate
governmental purpose. For example, in Hooper v. Bernalillo County
Assessor, 472 U.S. 612 (1985), the Court held that a New Mexico
property tax exemption applicable only to Vietnam War veterans who
resided in the state before a certain date violated equal protection by
``creat[ing] two tiers of resident Vietnam veterans, identifying
resident veterans who settled in the State after May 8, 1976, as in a
sense `second-class citizens. ' Id. at 623. Explaining that ``singling
out previous residents for the tax exemption[] [and] reward[ing] only
those citizens for their `past contributions' toward our Nation's
military effort in Vietnam'' was ``not a legitimate state purpose,''
the Court held that the tax exemption violated the Equal Protection
Clause by ``creat[ing] fixed, permanent
distinctions...between...classes of concededly bona tide residents. '
id. at 622-23 (quoting Zobel v. Williams, 457 U.S. 55, 59 (1982)).
3
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\3}\See also, e.g., Att'y Gen. of N.Y. v. Soto-Lopez, 476 U.S. 898,
909, 911 (1986) (plurality opinion) (applying heightened scrutiny to
invalidate civil service employment preference limited to veterans who
lived 'in the state when they entered the armed forces); id. at 913
(Burger, C.J., concurring in judgment) (same under rational basis
review); Bunyan v. Camacho, 770 F.2d 773, 776 (9th Cir. 1985)
(invalidating law enacted by Guam legislature awarding certain
retirement credits for higher education degrees to Guam civil servants
only if they resided in Guam before pursuing the degree).
---------------------------------------------------------------------------
Moreover, even as to this sub-class, the real property tax
exemption proposed here appears to be even less constitutionally
justifiable than benefits for long-time residents. In Nordlinger v.
Hahn, 505 U.S. 1 (1992), the Supreme Court upheld a California real
property valuation system that disfavored newer purchasers (though not
necessarily newer or longer-term residents), and the Court recognized
as legitimate two governmental interests for such a system: ``local
neighborhood preservation, continuity, and stability,'' id. at 12, and
honoring the reliance interests of long-time property owners, id. at
12-13. To the extent that those interests might be offered in defense
of tax benefits for long-time residents or property owners, they cannot
justify the real property tax exemption for Ancestral Native Virgin
Islanders. Neither of those interests appears to be rationally
furthered by the first sub-class included in the proposed property tax
exemption for Ancestral Native Virgin Islanders because membership in
that sub-class is defined neither by length of residence nor even by
length of property ownership in the USVI, but simply by having been
born or having lived in the USVI many years ago. Thus, for example, an
individual born in the USVI on June 28, 1932, who left the Islands the
following year and who moved back to the Islands and bought a home
there 50 years later (or who simply bought an undeveloped piece of land
there 50 years later) would be entitled to immunity from real property
taxes even though an individual who had spent his or her whole life in
the USVI and had owned the same home there for the past 50 years, but
who had been born there of parents who had arrived in the USVI as
immigrants on June 29, 1932, would not be so shielded. How a system
permitting this kind of discrimination could be said to further
neighborhood stability or reliance interests of long-time property
owners is unclear.
The second sub-class benefitted by the real property exemption for
Ancestral Native Virgin Islanders also seems. difficult to justify as
furthering a legitimate governmental interest, for the second sub-class
is defined simply by parentage or ancestry. We need not delve into
whether this use of ``ancestry'' in classifying citizens would be
deemed ``suspect'' and thus subject to heightened scrutiny under the
Fourteenth Amendment. See, e.g., Mass. Bd. of Retirement v. Murgia, 427
U.S. 307, 312 & n.4 (1976) (per curiam) (identifying alienage, race,
and ancestry as classifications subject to strict scrutiny). Again, it
is unclear to us what legitimate governmental purpose would support
favoring so starkly the descendants of individuals born or resident
long ago in the USVI regardless of the descendants' own connections (or
lack thereof) to the Islands.
2. Provisions on Voting and Office-Holding Favoring Native Virgin
Islanders and Ancestral Native Virgin Islanders
Provisions in the proposed constitution that limit certain offices
and the right to vote in certain elections to Native Virgin Islanders
and Ancestral Native Virgin Islanders or that guarantee members of
those groups the right to participate in certain elections present
similar issues. Under the proposed constitution, the positions of
Governor and Lieutenant Governor would be open only to members these
groups, see Proposed Const. art. VI, Sec. 3(d), as would service on the
Political Status Advisory Commission, an eleven-member body composed of
four appointed members and seven elected members that would promote
awareness of the USVI's political status options and advise the
Governor and legislature on ``methods to achieve a full measure of
self-government.'' Id. art. XVII, Sec. Sec. 1(b), 3. The special
election on ``status and federal relations options'' provided for under
the proposed constitution would be ``reserved for vote by Ancestral
Native and Native Virgin Islanders only, whether residing within or
outside the territory.'' Id. art. XVII, Sec. 2. And the proposed
constitution would guarantee that ``Ancestral and Native Virgin
Islanders, including those who reside outside of the Virgin Islands or
in the military, shall have the opportunity to vote on'' amendments to
the USVI constitution. Id art. XVIII, Sec. 7. 4
---------------------------------------------------------------------------
\4}\The right to vote on such amendments does not appear to be
limited to these groups, as the same provision requires that amendments
be submitted ``to the electors of the Virgin Islands.'' Proposed Const.
art. XVIII, Sec. 7. Although the term ``electors of the Virgin
Islands'' is undefined, the proposed constitution elsewhere provides
that ``[e]very citizen of the United States and the Virgin Islands
eighteen (18) years of age or older and registered to vote in the
Virgin Islands shall have the right to vote.'' Id. art. IV, Sec. 1. The
separate provisions establishing special voting rights and
opportunities for Ancestral Native Virgin Islanders and Native Virgin
Islanders suggest that the term ``electors of the Virgin Islands''
refers to the broader group of eligible voters.
---------------------------------------------------------------------------
The provisions concerning eligibility to vote in certain elections
raise equal protection concerns. To the extent one might attempt to
justify the limitation on the electorate for the special election on
status options as akin to a durational residence requirement, we
believe it is too restrictive to be so justified. Although the Supreme
Court has upheld a very brief residential limitation on eligibility to
vote in one instance based on a state's legitimate interest in
``prepar[ing] adequate voter records and protect[ing] its electoral
processes from possible frauds,'' Marston v. Lewis, 410 U.S. 679, 680
(1973) (per curiam) (upholding 50-day durational residence
requirement), it has held that even a requirement of one year's
residence for voting, as opposed to office-holding, violates
constitutional equal protection guarantees. See Dunn v. Blumstein, 405
U.S. 330, 360 (1972) (invalidating state's requirement that voters have
resided in the state for one year and the county for three months).
Moreover, the classifications here are not based on length of
residence, and their effects appear potentially arbitrary. As I
discussed earlier, the categories of Ancestral Native Virgin Islanders
and Native Virgin Islanders are based simply on place and timing of
birth, the fact of having resided in the USVI before a certain date
regardless of for how brief a time, or ancestry, regardless of the
individual's own connection to the USVI. Thus, they could prohibit, for
example, a foreign-born but life-long resident of the USVI from voting
on political status, but would permit any qualifying ancestral
descendant, including those who have never lived in the USVI, to do so.
5
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\5}\5 Cf. Soto-Lopez, 476 U.S. at 915 (Burger, C.J., concurring in
judgment) (discussing ``irrationality'' of law that ``would grant a
civil service hiring preference to a serviceman entering the military
while a resident of [the state] even if he was a resident only for a
day,'' but that would deny the preference to a veteran ``who was a
resident of [the state] for over 10 years before applying for a civil
service position''); Dunn, 405 U.S. at 360 (concluding that the state
interest in ``knowledgeable'' voters did not justify a durational
residence requirement for voting because ``there is simply too
attenuated a relationship between the state interest in an informed
electorate and the fixed requirement that voters must have been
residents in the State for a year and the county for three months'');
Kramer v. Union Free School Dist. No. 15, 395 U.S. 621, 632 (1969)
(rejecting, under strict scrutiny, restrictions on franchise for school
board elections because ``[t]he classifications in [the statute] permit
inclusion of many persons who have, at best, a remote and indirect
interest in school affairs and, on the other hand, exclude others who
have a distinct and direct interest in the school meeting decisions'').
---------------------------------------------------------------------------
The proposed constitution's guarantee that Native Virgin Islanders
and Ancestral Native Virgin Islanders ``resid[ing] outside of the
Virgin Islands'' may vote on amendments to the USVI constitution also
raises equal protection concerns. Proposed Const. art. XVIII, Sec. 7.
To uphold inclusion of non-resident voters in local government
elections against equal protection challenges, courts have required a
showing that the non-resident voters have a ``substantial interest'' in
the elections in question. 6 Because many non-resident
Ancestral Native Virgin Islanders and Native Virgin Islanders may have
no connection to the Islands apart from ancestry, it is unclear whether
their inclusion in the electorate for USVI constitutional amendments
would satisfy this standard.
---------------------------------------------------------------------------
\6}\See, e.g., May v. Town of Mountain Village, 132 F.3d 576, 583
(10th Cir. 1997) (upholding inclusion of nonresident property owners in
town electorate because such voters ``have a substantial interest in
township elections''); Board of County Commissioners of Shelby County,
Tenn. v. Burson, 121 F.3d 244, 248-51 (6th Cir. 1997) (deeming
participation of city voters in county school board elections
irrational and thus impermissible under Fourteenth Amendment where city
voters had their own independent school board and lacked a substantial
interest in county school board elections); Hogencamp v. Lee County Bd.
of Educ., 722 F.2d 720, 722 (11th Cir. 1984) (deeming city taxpayers'
contribution of 2.74% of county school board's budget ``insufficient by
itself to create a substantial interest in the city residents''
justifying their participation in county school board elections).
---------------------------------------------------------------------------
Finally, although the residential duration requirements for
Governor and Lieutenant Governor and members of the Political Status
Advisory Commission would prevent non-resident individuals who qualify
as Native Virgin Islanders or Ancestral Native Virgin Islanders from
serving in those offices, it is unclear what legitimate governmental
purpose would be advanced by narrowing the subset of longtime residents
who could hold those offices to Native Virgin Islanders and Ancestral
Native Virgin Islanders.
In the absence of any identified legitimate governmental interest
to support such provisions concerning voting and office-holding based
on place of birth, residence many decades ago, or ancestry, we would
again recommend that these provisions be removed from the proposed
constitution. 7
---------------------------------------------------------------------------
\7}\Because we conclude that the restrictions on voting present
clear equal protection concerns under the Fourteenth Amendment, we need
not consider whether they may also violate the Fifteenth Amendment's
prohibition on denial or abridgement of the right to vote ``on account
of race, color, or previous condition of servitude.'' U.S. Const.
amend. XV; see also 48 U.S.C. Sec. 1561 (extending Fifteenth Amendment
to USVI).
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B. Residence Requirements for Office-Holding
Second, the proposed constitution imposes substantial residence
requirements on a number of USVI offices. In particular, the Governor
and Lieutenant Governor would be required to have been
``dorniciliar[ies]'' of the USVI for at least fifteen years, ten of
which ``must immediately precede the date of filing for office,''
Proposed Const. art. VI, Sec. 3(a); judges and justices of the USVI
Supreme Court and lower court to be established under the proposed
constitution would be required to have been ``domiciled'' in the USVI
for at least ten years ``immediately preceding'' the judge or justice's
appointment, id. art. VII, Sec. 5(b); the Attorney General and
Inspector General would need to have resided in the USVI for at least
five.years, id. art. VI, Sec. Sec. 10(a)(1), 11(a)(2); 8 and
the members of the Political Status Advisory Commission would be
required to have been ``domiciliaries'' of the USVI for ``a minimum of
five years,'' id, art. XVII, Sec. 1(b). In addition, the proposed
constitution would require that USVI Senators be ``domiciled'' intheir
legislative district ``for at least one year immediately preceding the
first date of filing for office.'' Id. art. V, Sec. 3(c).
---------------------------------------------------------------------------
\8\ The proposed constitution appears ambiguous with respect to how
this five-year period is determined. It provides: ``There shall be an
Attorney General, who shall be appointed by the Governor with the
advice and consent of the Senate, and a t the time of the appointment
must...have resided in the Virgin Islands at least five (5) years next
preceding his election.'' See Proposed Const. art. VI, Sec. 10(a)(1).
Given that the Attorney General would be appointed rather than elected,
the reference to the period ``next preceding his election'' seems
unclear.
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These requirements, particularly those requiring more than five
years of residence, raise potential equal protection concerns. The
Supreme Court has summarily affirmed three decisions upholding five- to
seven-year residence requirements for state senators and governors, see
Chimento v. Stark, 353 F. Supp. 1211, 127 (D.N.H. 1973), aff'd, 414
U.S. 802 (1973); Kanapaux v. Ellisor (D.S.C. unreported), aff'd, 419
U.S. 891 (1974); Sununu v. Stark, 383 F. Supp. 1287 (D.N.H. 1974),
aff'd, 420 U.S. 958 (1975), and lower courts have upheld relatively
brief durational residency requirements for state or local offices,
typically applying only rational basis review and deeming such laws
adequately justified by the governmental interest in ensuring
familiarity with local concerns. 9 But in some cases lower
courts have struck down laws imposing residence requirements of five or
more years on certain state or local offices. 10
---------------------------------------------------------------------------
\9}\See, e.g., City ofAkron v. Bell, 660 F,2d 166, 168 (6th Cir.
1981) (one-year residence requirement for city council members);
MacDonald v. City of Henderson, 818 F. Supp. 303, 306 (D. Nev. 1993)
(one-year residence requirement for city council); Hankins v. Hawaii,
639 F. Supp. 1552, 1556 (D. Hawaii 1986) (five-year residence
requirement for Hawaii governor under state constitution); Schiavone v.
DeStefano, 852 A.2d 862, 866-67 (Conn. Sup. Ct. 2001) (fiveyear
residence requirement for city mayor); Civil Service Merit Bd of City
of Knoxville v. Burson, 816 S.W.2d 725; 734 (Tenn. 1991) (one-year
residence requirement for municipal civil service boards); State ex
rel. Brown v. Summit County Bd. of Elections, 545 N.E.2d 1256, 125960
(Ohio 1989) (two-year residence requirement for city council);
Langmeyer v. Idaho, 656 P.2d 114, 118 (Idaho 1982) (five-year residence
requirement for appointment to local planning and zoning board); cf.
Thournir v. Meyer, 909 F.2d 408, 411 (10th Cir. 1990) (upholding under
rational basis review state requirement that unaffiliated candidates
have been registered as unaffiliated voters in the state for at least
one year before filing for office); White v. Manchin, 318 S.E.2d 470,
488, 491 (W.Va. 1984) (applying strict scrutiny based on the
fundamental right ``to become a candidate for public office'' but
upholding state constitutional requirement that state senators have
resided in their district for at least one year before their election).
\10}\See, e.g., Antonio v. Kirkpatrick, 579 F.2d 1147, 1151 (8th
Cir. 1978) (invalidating tenyear residence requirement for State
Auditor); Brill v, Carter, 455 F. Supp. 172, 174-75 (D. Md. 1978)
(invalidating four-year residence requirement for members of county
council); Billington v. Hayduk, 439 F. Supp. 975, 978-79 (S.D.N.Y;)
(invalidating five-year residence requirement for county executive),
aff'd on other grounds, 565 F.2d 824 (2d Cir. 1977); cf. Robertson v.
Bartels, 150 F. Supp. 2d 691, 696, 699 (D.N.J. 2001) (applying strict
scrutiny based on ``the combined right of persons to run for public
office and the right of voters to vote for candidates of their choice''
and invalidating state requirement that state legislators have resided
within their legislative districts for at least one year); Peloza v.
Freels, 871 P.2d 687, 691 (Alaska 1994) (applying heightened scrutiny
under state constitution and invalidating three-year residence
requirement for city council).
In Clements v. Fashing, 457 U.S. 957 (1982), a plurality of the
Supreme Court observed that ``the existence of barriers to a
candidate's access to the ballot `does not of itself compel close
scrutiny,''' and that ``[d]ecision in this area of constitutional
adjudication is a matter of degree, and involves a consideration of the
facts and circumstances behind the law, the interests the State seeks
to protect by placing restrictions on candidacy, and the nature of the
interests of those who may be burdened by the restrictions.'' Id. at
963 (plurality opinion) (quoting Bullock v. Carter, 405 U.S. 134, 143
(1972)). Clements, however, did not involve durational residence
requirements, but rather provisions requiring a waiting period or
mandatory resignation before certain current state officeholders could
seek new elective offices. See id. at 966-71. In another case, a
concurring opinion, citing Chimento's approval of a seven-year
residence requirement for a state governor, suggested that residence
requirements may serve legitimate purposes, but this opinion did not
elaborate on how long a period of prior residence may be required. See
Zobel, 457 U.S. at 70 (Brennan, J., concurring) (observing that
``allegiance and attachment may be rationally measured by length of
residence...and allegiance and attachment may bear some rational
relationship to a very limited number of legitimate state purposes'').
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Insofar as the territorial status and unique history and geography
of the USVI make familiarity with local issues particularly important
for office-holders there, the governmental interests supporting
durational residence requirements for USVI offices may be particularly
strong. 11 Yet at least some courts might consider the
lengthy residence requirements hereparticularly the ten- or fifteen-
year periods required for USVI judges, Governors, and Lieutenant
Governors-unjustified. 12 Accordingly, we would recommend
that consideration be given to shortening the ten- and fifteen-year
residence requirements for USVI Governors, Lieutenant Governors, and
judges.
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\11}\See, e.g., Hankins, 639 F. Supp, at 1556 (observing that
``[t]he State has a strong interest in the assurance that its governor
will be a person who understands the conditions of life in Hawaii'' and
that ``[t]his concern has `particular relevance in a small and
comparatively sparsely populated state' (quoting Chimento, 353 F. Supp.
at 1215)); cf. Bell, 660 F.2d at 168 (noting that ``the interests of [a
state or local] governmental unit in knowledgeable candidates and
knowledgeable voters may be served by differing lengths of durational
residency requirements'').
\12}\Cf. Clements, 457 U.S. at 963 (plurality opinion) (observing
that ``[d]ecision in this area of constitutional adjudication is a
matter of degree''); Summit County Bd. of Elections, 545 N.E.2d at 1260
(upholding two-year residence requirement but deeming it ``conceivable
that such a requirement may be too long in duration to serve a
legitimate state interest'').
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C. Territorial Waters, Marine Resources, and Submerged Lands
Third, Article Xii, Section 2, concerning ``Preservation of Natural
Resources,'' states:
The Government shall have the power to manage, control and
develop the natural and marine resources comprising of
submerged lands, inlets, and cays; to reserve to itself all
such rights to internal waters between the individual islands,
claim sovereignty over its inter-island waters to the effect
that the territorial waters shall extend 12 nautical miles from
each island coast up to the international boundaries. This is
an alienable right of the people of the Virgin Islands of the
U.S. and shall be safeguarded.
The intended meaning and effect of this provision are not entirely
clear. To the extent that its reference to a claim of ``sovereignty''
over coastal waters is intended to derogate from the sovereignty of the
United States over those waters, it is inconsistent with federal law
and should be removed. See Proclamation No. 5928, 54 Fed. Reg. 777
(Jan. 9, 1989) (proclamation of U.S. territorial sea). In addition, by
statute, the United States has, subject to certain exceptions, conveyed
to the USVI its right, title, and interest in submerged lands and
mineral rights in those submerged lands out to three miles. See 48
U.S.C. Sec. Sec. 1705, 1706 (2006); see also, e.g., Proclamation No.
7399, 66 Fed. Reg. 7364 (Jan. 22, 2001) (proclamation of Virgin Islands
Coral Reef National Monument). Any assertion of USVI control over
submerged lands and mineral rights beyond those federal statutory
limits would be inconsistent with federal law and should be removed.
Federal law also reserves to the United States exclusive management
rights over fisheries within the ``exclusive economic zone.'' See 16
U.S.C. Sec. 1811(a) (2006). Again, the proposed constitution must be
made consistent with this federal statutory mandate, While the final
sentence of Article Xll, Section 2 acknowledges that the rights it
addresses are alienable, we recommend modifying this language to make
clearer that these matters are subject to Congress's plenary authority.
13
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\13}\After the Department of Justice had completed its memorandum,
we received a copy of a letter from several members of the Fifth
Constitutional Convention to Delegate Christensen in which they raised,
among other things, a concern about another article in the proposed
constitution addressing submerged lands. See Letter for Hon. Donna M.
Christensen, from Craig Barshinger at al. (Jan. 29, 2010). Article XV,
concerning ``Protection of the Environment,'' provides in Section 4:
Submerged, Filled and Reclaimed Lands
Submerged lands, filled and reclaimed lands in the Virgin Islands
are public lands belonging collectively to the people of the Virgin
Islands, and shall not be sold or transferred. The Virgin Islands of
the United States cannot be sold or transferred.
Because this provision comes in an Article on environmental
protection and follows sections on establishing a land, air and water
preservation commission and protecting public access to beaches, we
understood it as directed at private owners. To the extent the second
sentence could be read as purporting to limit Congress's power under
the Territories Clause of the Constitution, see U.S. Const. art. IV,
sec,, to transfer the USVI, we agree that it should be amended to
remove any ambiguity on that score.
---------------------------------------------------------------------------
I would like to emphasize that my statement has focused on three
aspects of the proposed constitution that we believe Congress should
consider revising because we believed that discussing those provisions
would be most helpful to the subcommittee as its considers what action
to take in response to the transmittal of the proposed constitution.
Let me close by echoing President Obama's letter of transmittal in
commending the electorate Virgin Islands and its governmental
representatives in their continuing commitment to increasing self-
government and the rule of law,
I would be happy to address any questions you may have. I would be
grateful if the Department's memorandum could be inserted in the record
of this hearing immediately following my statement.
______
[NOTE: Memorandum submitted for the record has been retained in the
Committee's official files.]
Ms. Bordallo. Thank you, Mr. Cedarbaum, very much for your
testimony. And I now have the privilege of recognizing the
distinguished Governor from the Virgin Islands. Governor, thank
you very much for traveling here to the Nation's Capital,
although the Virgin Islands does not have as long a trip as
Guam does, to be with us. And given your standing as Governor,
in keeping with the tradition of our Subcommittee, please know
that we will be considerate of your time and appreciate your
highlighting and summarizing the key points for us to consider.
Please proceed.
STATEMENT OF HON. JOHN P. deJONGH, GOVERNOR,
U.S. VIRGIN ISLANDS
Governor deJongh. Thank you. Thank you, Madame Chair. Good
afternoon. My name is John deJongh, and I am Governor of the
United States Virgin Islands. On behalf of the people of the
Virgin Islands, I want to thank you, Madame Chair, Ranking
Member Young, and my friend, Delegate Christensen, for inviting
me here to be heard on this issue of enormous political,
emotional, and moral importance to me and to all Virgin
Islanders.
Let me begin by stating very clearly that I believe the
development of a constitution for our territory is an extremely
important milestone and goal for our citizens, and I look
forward very much to the day when the Virgin Islands approves a
constitution for all of the people to be proud of.
With respect to the proposed Virgin Islands constitution
that is before you, I am here today to reiterate my already
express positions on the document, which for me has come down
to a very simple and straightforward issue of civil rights. Our
population hails from all parts of the Caribbean and all parts
of the world. Those who are native Virgin Islanders, as well as
those who come and live among us in the Virgin Islands, are and
must be treated as equal, fully protected by the laws of the
United States and the laws of the Virgin Islands.
Virgin Islanders do not want to be treated, nor do we want
our children treated, as second-class citizens when they come
to the U.S. mainland, and you would not want to be treated or
to have your children treated as second-class citizens if you
or they moved to the United States Virgin Islands. That is why
when the proposed constitution first came to me, I felt that it
did not, under the terms of law that Congress had written, meet
the standards that Congress had set, and indeed did not even
qualify to be defined or treated as a constitution. It did not,
could not, and does not now have my endorsement, my support, or
my approval. And it is my belief and hope that it should not
have your support either.
The question then has become what do we do, how do we
respond to a fundamentally flawed proposed constitution. I
believe we must be guided first and foremost by the stated
principle, well-said by our first President, George Washington,
the basis for our political system is the right of the people
to make their own constitutions of government.
We the people of the Virgin Islands possess that right,
formally conferred upon us by this body, but in truth rooted in
the very sacred and inviolable American values that formed the
foundation of our system of government that the founding
fathers created over two centuries ago. As a native Virgin
Islander, I believe with deep conviction the Virgin Islands
will fully come into its own politically, economically, and
culturally only when its people write and consider and ratify
their own constitution, a constitution by, of, and for all
people of the Virgin Islands.
At the same time, I am chief executive of the government of
the Virgin Islands. In that capacity, I swore an oath before
God to support, obey, and defend both the laws of the Virgin
Islands and the constitution and the laws of the United States.
As a native Virgin Islander and as an American, I believe these
twin obligations are not and cannot be inconsistent, and it is
for that reason that I took the very strong position that the
proposed constitution of the United States Virgin Islands
presently before you is not acceptable, and it is, in fact,
unconstitutional on its face.
First, as I referenced earlier, the proposed constitution
fails to recognize the supremacy of the Constitution and the
laws of the United States. The Department of Justice has
concluded that despite the omission of any express recognition
of U.S. constitutional supremacy, the proposed constitution is
in substantial compliance with the statutory requirements.
Perhaps so. But that substantial compliance, such as it is,
does nothing to correct the political and the symbolic harm
created by the convention's conscious and deliberate decision
not to expressly recognize the supremacy of the Constitution
and laws of the country for which the Virgin Islands is a proud
part.
Second, the proposed constitution openly creates invidious
distinctions among the people of the Virgin Islands. Third, the
proposed constitution is inconsistent with the principles of
one-person, one-vote that lies at the heart of the concept of
equality in our democracy. Under the proposed constitution, the
people of the Virgin Islands would be divided into those who
carry full privileges of the Virgin Islands and those who do
not, between those who are eligible to serve the people, and
those who are not. Such classifications could not be more
contrary to the most fundamental of all American values, the
self-evident truth that all men are created equal, are endowed
by their creator with certain inalienable right, are entitled
to equal protection of the laws.
The proposed constitution, with its carveouts and special
preferences, assails these fundamental values. As a matter of
U.S. constitutional law it is indefensible, as a political act
it is divisive, and as a matter of history it is a dangerous
step backwards in our centuries-long struggle, which has been
joined by generations of Virgin Islanders for full and equal
civil rights.
In addition to speaking to you about the proposed
constitution and highlighting those areas of grave concern to
me as Governor, I am also here to speak to you today just as
importantly about the next steps for the document before this
committee. I want to state for the record with equal conviction
my opinion and desires for the next steps in this process,
which are to be exercised by this Congress.
Congress has the authority to empower, to modify in part or
in whole, the proposed constitution before you. Congress indeed
has the power implicit in the statute and inherent in its
legislative authority to reject the proposed constitution
outright. If this should end up being the decision of this
Congress, that we will abide by such and begin the process anew
with an even stronger determination to ensure that a
constitution is produced by a future constitutional convention
that focuses on and supports the rights of all citizens of the
Virgin Islands.
However, with respect to the modifications to the currently
proposed constitution, I want to request clearly very clearly
that the committee avoid such an option. As you know, the
Minority Members of the USVI Constitutional Convention have
urged this Congress to modify the proposed constitution in
order to strip out its most offensive details and approve the
document as amended.
I have great respect and admiration for those Minority
Members who have spoken on this matter. But I urge this
committee to reach a different result. I believe it is critical
to the continued political development of the Virgin Islands
that our constitution when finally adopted be the product
solely of the labors of the Virgin Islands. A constitution that
has been edited by Congress, however good its intentions, will
be seen in the territory as an exercise that runs contrary and
counter to truth self-governance. It is my view that it falls
to the people of the Virgin Islands to correct on its own the
deficiencies so blatantly evident in the proposed constitution.
Therefore, if this proposed constitution is not rejected
based on its failure to meet the requirements of
constitutionality, I would request at this juncture that you
return the proposed constitution to the people of the Virgin
Islands and leave it to them either accept or reject this
document.
I have made no secret of my views on this proposed
constitution. I believe that the people should reject it. I
also believe that they ultimately will. But I just as strongly
believe that such a decision belongs with the people of the
Virgin Islands.
In conclusion, I would simply say this. I am a native
Virgin Islander. I am also an American. Those identities are
not separable. To be a Virgin Islander is to be an American.
The overriding flow of the proposed constitution before you is
that in an effort to recognize and honor the unique
contributions of those of us who are natives, it would
sacrifice the values that make us Americans. As a Virgin
Islander, as an American, and as an office of the government
sworn to support and defend the Constitution of the United
States, I cannot countenance that result. I ask that Congress
not do so either, while also allowing us the ability to
determine our own political faith. Thank you.
[The prepared statement of Governor deJongh follows:]
Statement of The Honorable John de Jongh, Governor,
United States Virgin Islands
Good afternoon. My name is John de Jongh, and I am the Governor of
the United States Virgin Islands. On behalf of the people of the Virgin
Islands, I want to thank the Committee and my friend Delegate
Christensen for inviting me here to be heard on this issue of enormous
political, emotional and moral importance to me and to all Virgin
Islanders.
Let me begin by stating very clearly that I believe the development
of a constitution for our Territory is an extremely important milestone
and goal for our citizens and that I look very much forward to the day
when the Virgin Islands approves a Constitution that all of our people
can be proud of.
With respect to the proposed Virgin Islands constitution that is
before you, I am here today to reiterate my already expressed positions
on the document which for me has come down to a very simple and
straightforward issue of civil rights.
Our population hails from all parts of the Caribbean and all parts
of the world. Those who are native Virgin Islanders, as well as those
who come to live among us in the Virgin Islands are, and must be,
treated as equals--fully protected by the laws of the United States and
the laws of the Virgin Islands. Virgin Islanders do not want to be
treated, nor do we want our children treated as second class citizens
when we come to the U.S. mainland and you would not want to be treated,
or have your children treated as second class citizens if you or they
move to the U.S. Virgin Islands.
That is why, when the proposed constitution first came to me, I
felt that it did not, under the terms of the law Congress had written,
meet the standards that Congress had set, indeed that it did not even
qualify to be defined and treated as a constitution. It did not, could
not, and does not now, have my endorsement, my support or my approval.
And it is my belief, and hope, that it should not have your support
either.
The question, then, has become what to do in response to a
fundamentally flawed proposed constitution. I believe we must be
guided, first and foremost, by a principle stated well by our first
President, George Washington: ``the basis for our political system is
the right of the people to make their own constitutions of
government.''
We, the people of the Virgin Islands, possess that right--formally
conferred unto us by this body but in truth rooted in the very sacred
and inviolable American values that form the foundation of our system
of government as the Founding Fathers created it over two centuries
ago.
As a native Virgin Islander, I believe with deep conviction that
the Virgin Islands will fully come into its own, politically,
economically, and culturally, only when its people write, and consider,
and ratify, their own constitution--a constitution by, of, and for all
the people of the Virgin Islands.
At the same time, I am the Chief Executive of the Government of the
Virgin Islands. In that capacity I swore an oath before God to
``support, obey and defend'' both ``the laws of the Virgin Islands''
and ``the Constitution and laws of the United States.'' As a native
Virgin Islander and as an American, I believe these twin obligations
are not, and cannot be, inconsistent. And it is for that reason that I
took the very strong position that the proposed Constitution of the
United States Virgin Islands presently before you is not acceptable and
is in fact unconstitutional on its face.
First, as I referenced earlier, the proposed constitution fails to
recognize the supremacy of the Constitution and laws of the United
States. The U.S. Department of Justice has concluded that despite the
omission of any express recognition of U.S. constitutional supremacy,
the proposed constitution is in ``substantial compliance'' with the
statutory requirements. Perhaps so. But that ``substantial
compliance,'' such as it is, does nothing to correct the political and
symbolic harm created by the convention's conscious and deliberate
decision not to expressly recognize the supremacy of the constitution
and laws of the country of which the Virgin Islands is a proud part.
Second, the proposed constitution openly creates invidious
distinctions among the people of the Virgin Islands.
Third, the proposed constitution is inconsistent with the principle
of ``one person, one vote'' that lies at the heart of the concept of
equality in our democracy. Under the proposed constitution, the people
of the Virgin Islands would be divided into those who carry full
privileges of the Virgin Islands, and those who do not; between those
who are eligible to serve the people, and those who are not. Such
classifications could not be more contrary to the most fundamental of
all American values: the self-evident truth that all men are created
equal, are endowed by their Creator with certain inalienable rights,
and are entitled to the equal protection of the laws.
The proposed constitution, with its carve-outs and special
preferences, assails these fundamental values. As a matter of U.S.
Constitutional law, it is indefensible; as a political act, it is
divisive; and as a matter of history, it is a dangerous step backwards
in our centuries-long struggle, which has been joined by generations of
Virgin Islanders, for full and equal civil rights.
In addition to speaking to you about the proposed constitution and
highlighting those areas of grave concern to me as Governor, I am also
here today to speak to you, just as importantly about the next steps
for the document before this Committee. I want to state for the record,
with equal conviction, my opinion and desires for the next steps in
this process which are to be exercised by this Congress.
Congress has the authority and power to modify, in part, or in
whole, the proposed constitution before you. Congress indeed has the
power, implicit in the statute and inherent in its legislative
authority, to reject the proposed constitution outright. If this should
end up being the decision of this Congress then we will abide by such
and begin the process anew with an even stronger determination to
ensure that any constitution produced by a future constitutional
convention focuses on, and supports, the rights of all the citizens of
the Virgin Islands.
However, with respect to modifications to the currently proposed
constitution, I want to request very clearly that the Committee avoid
such an option. As you know, the minority members of the USVI
Constitutional Convention have urged this Congress to modify the
proposed constitution in order to strip out its most offensive details,
and approve the document, as amended.
I have great respect and admiration for those minority members who
have spoken out on this matter; but I urge this Committee to reach a
different result. I believe it is critical to the continued political
development of the Virgin Islands that our constitution, when finally
adopted, be the product solely of the labors of Virgin Islanders.
A constitution that has been edited by Congress, however good its
intentions, will be seen in the Islands as an exercise that runs
contrary and counter to true local self-governance.
It is my view that it falls to the people of the Virgin Islands to
correct, on our own, the deficiencies so blatantly evident in the
proposed constitution. Therefore if this proposed constitution is not
rejected based on its failure to meet the requirements of
constitutionality, I would request, at this juncture, that you return
the proposed constitution to the people of the Virgin Islands and leave
it to them to either accept, or reject this document.
I have made no secret of my views on this proposed constitution. I
believe that the people should reject it, and also believe that they
ultimately will. But I just as strongly believe that such a decision
belongs with the people of the Virgin Islands.
In conclusion, I would simply say this. I am a native Virgin
Islander. I am also an American. Those identities are not separable: to
be a Virgin Islander is to be an American. The overriding flaw of the
proposed constitution before you is that, in its effort to recognize
and honor the unique contributions of those of us who are natives, it
would sacrifice the values that make us Americans.
As a Virgin Islander, as an American, and as an officer of the
government sworn to support and defend the Constitution of the United
States, I cannot countenance that result. I ask that Congress not do so
either while also allowing us the ability to determine our own
political fate.
Thank you
______
Ms. Bordallo. Thank you very much, Governor, for your
statement. And, Senator Richards, we welcome your testimony,
and you are now recognized for five minutes.
STATEMENT OF HON. USIE R. RICHARDS, MINORITY LEADER, 28TH
LEGISLATURE OF THE VIRGIN ISLANDS
Mr. Richards. Good afternoon. I am Usie R. Richards, a
senator and Minority Leader of the 28th Legislature of the
Virgin Islands. I want to begin by thanking you for your
invitation to share my views. Let me state from the onset, I
stand firmly on the principle that the process should ensure
that the document developed by the citizens and registered
voters of the Virgin Islands, who were elected to the Fifth
Constitutional Convention by registered voters throughout the
unincorporated territory of the Virgin Islands be given the
opportunity to be voted upon by the voters that began this
process through its elected representatives in the 25th
Legislature.
Much has been said and written regarding a number of issues
surrounding the content of the document, and today I intend to
offer my perspective on what has transpired. I have no
intention to declare what is correct or incorrect, but more
importantly to provide a perspective that should aid this body
in understanding the conditions and circumstances under which
much of the documents content has evolved.
I am reminded of my testimony shared before the Committee
on Resources on May 17, 2000, as it related to H.R. 3999, a
proposal clarifying the process for the adoption of local
constitutional self-government for the Virgin Islands. The
failure to act on recommendations made almost a decade ago
continues to hamper the attempt of our populace to secure some
greater level of self-government.
Today, elected, appointed, and in some cases anointed
members of our community remain entrenched in heated
discussions and debates relating to this proposed constitution.
Despite all of this, I understand the foundation that these
issues have sat on for so many years. The Virgin Islands has
been and remains today an incorporated territory of the United
States, its subject matter best described by former Congressman
Robert Underwood, from Guam, in his introduction of H.R. 1521,
the Guam Commonwealth Bill. And he stated, ``Guam is currently
an incorporated territory. An incorporated territory means that
first, laws can be imposed upon the people of Guam without
consultation; second, any local law can be abrogated by the
U.S. Congress; third, U.S. citizenship can be taken away from
the people of Guam; fourth, Guam can be bought, sold, or traded
by the Federal Government; and fifth, Guam as a territory is in
the truest sense a possession.'' All I ask you is to insert
Virgin Islands in the place of Guam.
When the members of the Fifth Constitutional Convention
declared in its preamble, ``Assuming the responsibilities of
self-government as an incorporated territory of the United
States, as acknowledged by Assistant Attorney General Ronald
Rich, this clearly illustrates the right and acknowledgment of
United States sovereignty.'' I would hope that the learned
amongst us would recognize that the term ``unincorporated
territory'' clearly speaks to an entity that is subservient to
and lacks the wherewithal to freely act on its own. Whether a
statement is explicit or implicit becomes a matter of
semantics.
Likewise, the supremacy of Federal law is recognized by the
Fifth Constitutional Convention, proposed with its inclusion of
the relevance of the 1917 treaty between the United States and
Denmark, and its recognition of the rights of U.S. court to
review decisions of local courts under the U.S. Constitution
and Federal laws. As concluded by Attorney Rich, we believe the
proposed constitution is in substantial compliance with
subsection 2(b)(1) of the enabling act.
While I am cognizant of the trepidations that may have been
created by the inclusion of language in the proposed
constitution, addressing the issue of classifications based on
place and timing of birth, timing of residence, and ancestry, I
must remind you that much of this stems from prior actions of
this body. This body has enacted laws to address education for
the native Hawaiian and Alaskan in Public Law 103-382 of 1994.
In the northern Marianas, this body has recognized the
significance of restrictions of alienation of land in article
12 of the commonwealth constitution, while giving special
preference to Native American, Samoan, in 16 U.S. Code, chapter
1, on national parks, military parks, monuments, and seashores.
And Public Law 4-14 of 1952, entitled Free Nationality and
Naturalization, this body went to great lengths to determine
and define who shall be considered a citizen. If the person was
born in Puerto Rico on or after April 11, 1899, born in the
Canal Zone, or Republic of Panama after February 26, 1904, born
in Alaska on or after March 20 of 1867, born in Hawaii on or
after August 12 of 1898, living in and born Virgin Islands
subsequent to January 17, 1917, and prior to February 25, 1927,
and living in and born in Guam after April 11, 1889, and
declared citizens of the U.S. as of August 1, 1950.
Not only has this body exercised the authority as it
relates to citizenship, but even in a case of public lands, in
section 1601 of the Alaska Native Claims Act, this body has
defined who ought to have the right to redress under this law.
This inalienable right is further defined in section 3 of
Public Law 92-203 of 1971, as it relates to the declaration of
settlement in the State of Alaska. In H.R. 1056, section 102,
this body not only recognized the inalienable right of self-
determination of the indigenous Chamorro people of Guam, but
also allows for the constitution to establish reasonable
residency requirements for the citizens of such commonwealth
for the purposes of the right to vote in commonwealth elections
or to hold any elected office by the constitution of Guam.
This body has unlimited power over the unincorporated
territory of the U.S. Virgin Islands. This body authorized
citizenship to the indigenous people of the unincorporated
territory of the Virgin Islands in 1927, a full 10 years after
the 1917 purchase from Denmark, a citizenship that was not
fully conferred until as late as 1940. Obviously, the enactment
of congressional laws to protect or enhance the status of
indigenous peoples in both possessions and states of the United
States has created a sense and need to address the status of
the indigenous in the Virgin Islands.
The body has placed itself in the position to now address
or redress the inequities created by the purchase of land with
no real regard to the then occupants that resulted in
uncontrolled population growth, outside economic dominance,
deterioration of our social mores, and an infiltration of our
political process. As a matter of fact, the Eastern Carribean
Center of the University of the Virgin Islands in their
research news from ECC inform us that there are some 58,786
Virgin Island natives living in the United States in 2008.
Since 1980, almost eight out of ten of all natives in the U.S.
had migrated there. Between 1980 and 1989, 13,184 natives moved
away. Between 1990 and 1999, 17,550 emigrated. And between 2000
and 2009, 15,143 natives took up residence in the States. This
is according to the 2008 Community Service Public Use
microdata.
Accordingly, the Virgin Islands Community Service indicates
that the total population of the Virgin Islands was 114,744.
Simply put, the 58,786 Virgin Islands natives living in the
United States represent more than half of the current resident
population of the Virgin Islands. It is therefore conceivable
why the writers of the proposed constitution gave great weight
and consideration to native Virgin Islanders living abroad.
The point is if this body can address such issues as
citizenship, economics, social needs, property, settlements,
trust lands, exclusive economic zones, education, alienation of
land, parks, and others, then surely this body can ensure the
inalienable rights of the indigenous people of the Virgin
Islands to pursue greater self-government through the drafting,
voting, and adoption of a constitution. I believe the annals of
this body said it best. This is a matter to be considered by
the voters, or perhaps at some future time by the courts.
I urge you to allow the voters of the U.S. Virgin Islands
to exercise some semblance of democracy by being able to
consider the content developed by their duly elected members to
the Fifth Constitutional Convention. I thank you for your time
and your consideration.
[The prepared statement of Mr. Richards follows:]
Statement of The Honorable Usie R. Richards, Minority Leader,
28th Legislature of the Virgin Islands
GOOD AFTERNOON, CHAIRWOMAN BORDALLO, MEMBERS OF THE SUBCOMMITTEE ON
INSULAR AFFAIRS, OCEANS AND WILDLIFE, MEMBERS OF CONGRESS AND ALL
OTHERS, I AM USIE R. RICHARDS, A SENATOR AND THE MINORITY LEADER OF THE
28TH LEGISLATURE OF THE VIRGIN ISLANDS. THANK YOU FOR YOUR INVITATION
TO SHARE MY VIEWS ON THE PROPOSED CONSTITUTION THAT IS BEFORE YOU. LET
ME STATE FROM THE ONSET, I STAND FIRMLY ON THE PRINCIPLE THAT THE
PROCESS SHOULD ENSURE THAT THE DOCUMENT DEVELOPED BY THE CITIZENS AND
REGISTERED VOTERS OF THE VIRGIN ISLANDS, WHO WERE ELECTED TO THE FIFTH
CONSTITUTIONAL CONVENTION BY REGISTERED VOTERS THROUGHOUT THE
UNINCOPORATED TERRITORY OF THE VIRGIN ISLANDS, BE GIVEN THE OPPORTUNITY
TO BE VOTED UPON BY THE VOTERS THAT BEGAN THIS PROCESS THROUGH ITS
ELECTED REPRESENTATIVES IN THE 26TH LEGISLATURE. MUCH HAS BEEN SAID AND
WRITTEN REGARDING A NUMBER OF ISSUES SURROUNDING THE CONTENT OF THE
DOCUMENT AND TODAY I INTEND TO OFFER MY PERSPECTIVE ON WHAT HAS
TRANSPIRED. I HAVE NO INTENTION TO DECLARE WHAT IS CORRECT OR
INCORRECT, BUT MORE IMPORTANTLY TO PROVIDE A PERSPECTIVE THAT SHOULD
AID THIS BODY IN UNDERSTANDING THE CONDITIONS AND CIRCUMSTANCES UNDER
WHICH MUCH OF THE DOCUMENT'S CONTENT HAS EVOLVED.
I AM REMINDED OF MY TESTIMONY SHARED BEFORE THE COMMITTEE ON
RESOURCES, CHAIRED BY REPRESENTATIVE DON YOUNG ON MAY 17, 2000, AS IT
RELATED TO H.R. 3999, A PROPOSAL ``CLARIFYING THE PROCESS FOR THE
ADOPTION OF LOCAL CONSTITUTIONAL SELF-GOVERNMENT FOR THE VIRGIN
ISLANDS''. THE FAILURE TO ACT ON RECOMMENDATIONS MADE ALMOST A DECADE
AGO CONTINUES TO HAMPER THE ATTEMPT OF OUR POPULACE TO SECURE SOME
GREATER LEVEL OF SELF-GOVERNMENT IN THE VIRGIN ISLANDS.
TODAY, ELECTED, APPOINTED AND IN SOME CASES ``ANNOINTED'' MEMBERS
OF OUR COMMUNITY REMAIN ENTRENCHED IN HEATED DISUCSSIONS AND DEBATES
RELATING TO THIS PROPOSED CONSTITUTION. DESPITE ALL OF THIS, I
UNDERSTAND THE FOUNDATION THAT THESE ISSUES HAVE SAT ON FOR SO MANY
YEARS. THE VIRGIN ISLANDS HAS BEEN, AND REMAINS TODAY, AN UNINCOPORATED
TERRITORY OF THE UNITED STATES, A SUBJECT MATTER BEST DESCRIBED BY
FORMER CONGRESSMAN ROBERT UNDERWOOD FROM GUAM IN HIS INTRODUCTION OF
H.R.1521 THE GUAM COMMONWEALTH BILL. HE STATED, ``GUAM IS CURRENTLY AN
UNINCORPORATED TERRITORY, AN UNICORPORATED TERRITORY MEANS THAT FIRST,
LAWS CAN BE IMPOSED UPON THE PEOPLE OF GUAM WITHOUT CONSULTATION,
SECOND, ANY LOCAL LAW CAN BE ABROGATED BY THE U.S. CONGRESS, THIRD,
U.S. CITIZENSHIP CAN BE TAKEN AWAY FROM THE PEOPLE OF GUAM, FOURTH,
GUAM CAN BE BOUGHT, SOLD OR TRADED BY THE FEDERAL GOVERNMENT, AND
FIFTH, GUAM AS A TERRITORY IS IN THE TRUEST SENSE A POSSESSION''. WHEN
THE MEMBERS OF THE 5TH CONSTITUTIONAL CONVENTION DECLARE IN ITS
PREAMBLE, ``ASSUMING THE RESPONSIBLITIES OF SELF-GOVERNMENT AS AN
UNINCOPORATED TERRITORY OF THE UNITED STATES'', AS ACKNOWLEGED BY
ASSISTANT ATTORNEY GENERAL RONALD WEICH, THIS CLEARLY ILLUSTRATES THE
WRITERS' ACKNOWLEDGEMENT OF UNITED STATES SOVEREIGNTY. I WOULD HOPE
THAT THE LEARNED AMONGST US, WOULD RECOGNIZE THAT THE TERM
``UNINCOPORATED TERRITORY'', CLEARLY SPEAKS TO AN ENTITY THAT IS
SUBSERVIANT TO AND LACKS THE WHEREWITHAL TO FREELY ACT ON ITS OWN.
WHETHER THE STATEMENT IS EXPLICIT OR IMPLICIT BECOMES A MATTER OF
SEMANTICS.
LIKEWISE, THE SUPREMACY OF FEDERAL LAW IS RECOGNIZED BY THE 5TH
CONSTITUTIONAL CONVENTION, PROPOSED WITH ITS INCLUSION OF THE RELEVANCE
OF THE 1917 TREATY BETWEEN THE UNITED STATES AND DENMARK AND ITS
RECOGNITION OF THE RIGHTS OF U.S. COURTS TO REVIEW DECISIONS OF LOCAL
COURTS UNDER THE U.S. CONSTITUTION AND FEDERAL LAWS. AS CONCLUDED BY
ATTORNEY WEICH, ``WE BELIEVE THE PROPOSED CONSTITUTION IS IN
SUBSTANTIAL COMPLIANCE WITH SUBSECTION 2(b)(1) OF THE ENABLING ACT''.
WHILE I REMAIN COGNIZANT OF THE TREPIDATIONS THAT MAY HAVE BEEN CREATED
BY THE INCLUSION OF LANGUAGE IN THE PROPOSED CONSTITUTION ADDRESSING
THE ISSUE OF ``CLASSIFICATIONS BASED ON PLACE AND TIMING OF BIRTH,
TIMING OF RESIDENCE, AND ANCESTRY'', I MUST REMIND YOU THAT MUCH OF
THIS STEMS FROM PRIOR ACTIONS OF THIS BODY. THIS BODY HAS ENACTED LAWS
TO ADDRESS EDUCATION FOR THE NATIVE HAWAIIAN AND ALASKAN IN ``P.L. 103-
382 OF OCTOBER 20, 1994''. IN THE NORTHERN MARIANAS THIS BODY HAS
RECOGNIZED THE SIGNIFICANCE OF RESTRICTIONS OF ALIENATION OF LAND IN
``ARTICLE XII OF THE COMMONWEALTH CONSTITUTION'', WHILE GIVING SPECIAL
PREFERENCE TO THE NATIVE AMERICAN SAMOAN IN ``16 USC, CHAPTER 1 ON
NATIONAL PARKS, MILITARY PARKS, MONUMENTS, AND SEASHORES''. IN P.L.
414-JUNE 27, 1952 IN TITLE III-NATIONALITY AND NATURALIZATION, THIS
BODY WENT TO GREAT LENGTHS TO DETERMINE AND DEFINE WHO SHALL BE
CONSIDERED A CITIZEN, ``IF THE PERSON WAS BORN IN PUERTO RICO ON OR
AFTER APRIL 11, 1899; BORN IN THE CANAL ZONE OR REPUBLIC OF PANAMA
AFTER FEBRUARY 26, 1904; BORN IN ALASKA ON OR AFTER MARCH 20, 1867;
BORN IN HAWAII ON OR AFTER AUGUST 12, 1898; LIVING IN AND BORN IN THE
VIRGIN ISLANDS SUBSEQUENT TO JANUARY 17, 1917, AND PRIOR TO FEBRUARY
25, 1927; AND LIVING IN AND BORN IN GUAM AFTER APRIL 11, 1899 AND
DECLARED CITIZENS OF THE U.S. AS OF AUGUST 1, 1950''. NOT ONLY HAS THIS
BODY EXERCISED THEIR AUTHORITY AS IT RELATES TO CITIZENSHIP, BUT EVEN
IN THE CASE OF PUBLIC LANDS IN ``SECTION 1601 OF THE ALASKA NATIVE
CLAIMS ACT'' THIS BODY HAS DEFINED WHO OUGHT TO HAVE THE RIGHT TO
REDRESS UNDER THIS LAW. THIS INALIENABLE RIGHT IS FURTHER DEFINED IN
``SECTION 3, OF P.L. 92-203 OF DECEMBER 18, 1971'', AS IT RELATES TO
THE DECLARATION OF SETTLEMENT IN THE STATE OF ALASKA. IN ``H.R. 1056
IH, SECTION 102''., THIS BODY NOT ONLY RECOGNIZES THE INALIENABLE RIGHT
OF SELF-DETERMINATION OF THE INDIGENOUS CHAMARRO PEOPLE OF GUAM, BUT
ALSO ALLOWS FOR ``THE CONSTITUTION TO ESTABLISH REASONABLE RESIDENCY
REQUIREMENTS FOR THE CITIZENS OF SUCH COMMONWEALTH FOR THE PURPOSES OF
THE RIGHT TO VOTE IN COMMONWEALTH ELECTIONS OR TO HOLD ANY ELECTIVE
OFFICE BY THE CONSTITUTION OF GUAM''.
THIS BODY HAS UNLIMITED POWER OVER THE UNINCOPORATED TERRITORY OF
THE VIRGIN ISLANDS. THIS BODY AUTHORIZED CITIZENSHIP TO THE INDIGENOUS
PEOPLE OF THE UNINCOPORATED TERRITORY OF THE VIRGIN ISLANDS IN 1927, A
FULL TEN YEARS AFTER THE 1917 PURCHASE FROM DENMARK, A CITIZENSHIP THAT
WAS NOT FULLY CONFERRED UNTIL AS LATE AS 1940. OBVIOUSLY, THE ENACTMENT
OF CONGRESSIONAL LAWS TO PROTECT OR ENHANCE THE STATUS OF INDIGENOUS
PEOPLES IN BOTH POSSESSIONS AND STATES OF UNITED STATES HAS CREATED THE
SENSE AND NEED TO ADDRESS THE STATUS OF THE INDIGENOUS IN THE VIRGIN
ISLANDS. THIS BODY HAS PLACED ITSELF IN THE POSITION TO NOW ADDRESS OR
REDRESS THE INEQUITIES CREATED BY THE PURCHASE OF A LAND WITH NO REAL
REGARD TO THE THEN OCCUPANTS THAT RESULTED IN UNCONTROLLED POPULATION
GROWTH, OUTSIDE ECONOMIC DOMINANCE, DETERIORATION OF OUR SOCIAL MORES
AND AN INFILTRATION OF OUR POLITICAL PROCESS.
AS A MATTER OF FACT, THE EASTERN CARIBBEAN CENTER OF THE UNIVERSITY
OF THE VIRGIN ISLANDS, IN THEIR ``RESEARCH NEWS FROM ECC'', RELEASED IN
JANUARY OF 2010, INFORMED U.S. OF THAT SOME 58,786 VIRGIN ISLANDS
NATIVES LIVING IN THE UNITED STATES IN 2008. ``SINCE 1980, ALMOST 8 OUT
OF 10 OF ALL NATIVES IN THE U.S. HAD MIGRATED THERE. BETWEEN 1980 AND
1989, 13,184 NATIVES MOVED AWAY...BETWEEN 1990 AND 1999, 17,550
EMIGRATED...AND BETWEEN 2000 AND 2009 15,143 NATIVES TOOK UP RESIDENCE
IN THE STATES''. THIS IS ACCORDING TO THE 2008 AMERICAN COMMUNITY
SURVEY (acs) PUBLIC USE MICRODATA SAMPLE FILE. ACCORDINGLY, THE VIRGIN
ISLANDS COMMUNITY SURVEY (VICS) INDICATES THAT THE TOTAL POPULATION OF
THE USVI WAS 114,744. SIMPLY PUT, THE 58,786 VIRGIN ISLANDS NATIVES
LIVING IN THE UNITED STATES REPRESENTS MORE THAN HALF OF THE CURRENT
RESIDENT POPULATION OF THE VIRGIN ISLANDS. IT IS THEREFORE CONCEIVABLE
WHY THE WRITERS OF THE PROPOSED CONSTITUTION GAVE GREAT WEIGHT AND
CONSIDERATION TO NATIVE VIRGIN ISLANDERS LIVING ABROAD.
THE POINT IS, IF THIS BODY CAN ADDRESS SUCH ISSUES AS CITIZENSHIP,
ECONOMICS, SOCIAL NEEDS, PROPERTY, SETTLEMENTS, TRUST LAND, EXCLUSIVE
ECONOMIC ZONES, EDUCATION, ALIENATION OF LAND, PARKS AND OTHERS, THEN
SURELY THIS BODY CAN ENSURE THE INALIENABLE RIGHTS OF THE INDIGENOUS
PEOPLE OF THE VIRGIN ISLANDS TO PURSUE GREATER SELF-GOVERNMENT THROUGH
THE DRAFTING, VOTING AND ADOPTION OF A CONSTITUTION.
I BELIEVE THE ANNALS OF THIS BODY SAID IT BEST, ``THIS IS A MATTER
TO BE CONSIDERED BY THE VOTERS, OR PERHAPS, AT SOME FUTURE TIME, BY THE
COURTS''. I URGE YOU TO ALLOW THE VOTERS OF THE U.S. VIRGIN ISLANDS TO
EXERCISE SOME SEMBLANCE OF DEMOCRACY BY BEING ABLE TO COnSIDER THE
CONTENT DEVELOPED BY THEIR DULY ELECTED MEMBERS TO THE 5TH
CONSTITUTIONAL CONVENTION. I THANK YOU FOR YOUR TIME AND CONSIDERATION.
______
Ms. Bordallo. I thank you very much, Senator Richards. And
last, we will turn to the former Lieutenant Governor, Mr.
James. Mr. James, you are recognized for five minutes.
STATEMENT OF HON. GERARD LUZ JAMES II, PRESIDENT, FIFTH
CONSTITUTIONAL CONVENTION
Mr. James. Thank you very much, Madame Chair, and good
afternoon, Madame Chairperson Bordallo, committee members, and
all others present. I am Gerard Luz James II. I am the
President of the Fifth Constitutional Convention of the United
States Virgin Islands, and I have with me today Dr. Lois
Hassell-Habtes, Adelbert Bryan, and Gerard Emanuel, who are
here in official capacities as representatives of the Fifth
Constitutional Convention.
Elected at large by the people of the four islands
paradise, which we proudly call home, it is my distinct honor
to address this committee regarding the adoption last May by
our convention of the proposed constitution for consideration
by Congress. The convention is fully aware that our proposed
constitution is not designed to usurp the sovereignty or
supremacy of Federal law, and that the passage of our
constitution will not, nor is it intended to, alter our
political relationship with the United States.
It represents a further step along the path to the full
measure of self-government. This is our fifth attempt to attain
greater self-government since Congress passed P.L. 94-584 in
1976, which granted us the authority to draft our own
constitution. The Revised Organic Act of 1954--the Organic Act
has served as the guiding law for the Virgin Islands for 56
years, with no input from the population it governs.
On June 12, 2007, a special election was held to select
delegates from throughout the territory to draft a
constitution. The keen interest of the Virgin Islands in this
process was evident from the inception, when voters elected
delegates from a field of 135 candidates. Thirty delegates were
elected and served as drafters of the constitution. The elected
delegates were composed of a former Governor, a Lieutenant
Governor, four former senators, two sitting senators elected
during the term of the convention, a former district court
judge, three practicing attorneys, farmers, professors,
teachers, and political activists.
Upon convening in December of 2007, the convention formed
12 committees which were charged with conducting public
hearings on the areas which are now in part our proposed
constitution. The work of our convention was impeded at about
the onset for six months by the court challenge to the results
of the election by our unsuccessful candidate, and further
delayed in midstream as the convention awaited the balance of
the operating funds appropriated by the legislature.
The level of funding was in itself an impediment, with the
Fifth Constitutional Convention receiving significantly less
funding that the fourth constitutional convention, which met
some 30 years ago. The convention conducted a series of well
publicized public hearings, committee hearings, and plenary
sessions comprising hundreds of hours of testimony and debate
and many volumes of transcribed records. These meetings were
attended by Virgin Islanders from all walks of life, included
but not limited to students, political activists, several
religious leaders, as well as private citizens.
We also consulted with representatives of a wide range of
leaders of several organizations and institutions, including
the president and the department heads of the University of the
Virgin Islands. We are proud to report that at the end of this
protracted process, in May of last year, the convention was
able to reach a required majority consensus, and our proposed
constitution passed with two-thirds vote of 20 delegates. The
document was transmitted to our Governor on May 31, 2009.
A major area of public discussion during this process was
extensive debate on the crafting of the definition of Virgin
Islander according to 1917 treaty accession, through which the
territory was purchased by the United States from Denmark. The
political rights and citizenship and the inhabitants of the
territory at that time of transfer was subsequently to be
determined by U.S. Congress.
The citizenship of the island's population at the time of
the transfer, which was predominantly comprised of former
enslaved Africans and their descendants, was not determined
until 10 years later. Article 3 of the proposed constitution
defining ancestral native Virgin Islanders was based on Federal
law emerging from that period. It is also consistent with the
definition of native population in the constitution on other
unincorporated territories.
The proposed constitution provides a broader definition of
a native Virgin Islander as a person born in the territory or
as a descendant of a native. The definition was imperative for
several historical reasons. From the early 1970s, we have
experienced a dramatic decline of our native-born population.
According to the 2007 study conducted by the University of the
Virgin Islands, as of 2005, the percentage was approximately
51.3 percent. This decline has significant implications for the
self-identity of our people.
The proposed constitution also provides that only ancestral
or native Virgin Islanders are eligible to serve as Governor,
Lieutenant Governor, and members of the proposed future
political status advisory commission. These provisions address
the unique culture and political backdrop of our islands.
Additionally, a provision to exempt ancestral Virgin Islanders
from paying property tax has been included to protect the
disenfranchised native population from significant externally
motivated commercial land speculation, which continues to
result in the erosion of the natives' ability to retain and
purchase property. It is also consistent with several relevant
general assembly resolutions, which mandated that all necessary
steps be taken to protect the property rights of the peoples of
the territories on the United Nations list of non-self-
governing territories. The Virgin Islands, along with American
Samoa and Guam remain on that list today.
Similarly, our native rights provisions are part of the
constitutions of other U.S.-administered territories,
specifically those of American Samoa and the northern Marianas,
both of which have a comparable island geographical make-up,
and the same unincorporated political status as the U.S. Virgin
Islands.
We strongly feel that these provisions are not
discriminatory and do not violate Federal law as it is
presently applied to the Virgin Islands and support the
compelling state interests.
My fellow delegates' testimony will address these issues in
greater detail. Throughout history, our shores have remained
open to people of all cultures and ethnicities. The Virgin
Islands has long been known as the American Paradise, Madame
Chair. The proposed constitution is our sincere effort and
attempt to ensure that the beloved territory remains our Virgin
Islands home. I thank you very much, Madame Chair.
[The prepared statement of Mr. James follows:]
Statement of Gerard Luz Amwur James II, President,
Fifth Constitutional Convention of the U.S. Virgin Islands
Good Morning Chairperson Bordallo, Committee members and all others
present. My name is Gerard Luz Amwur James II. I am the President of
the Fifth Constitutional Convention of the U.S. Virgin Islands, elected
at large by the people of our four island paradise which we proudly
call home. It is my distinct honor to address this Committee regarding
the adoption last May by our Convention of the proposed constitution
for consideration by Congress.
I must first emphasize that the Convention is fully aware that our
proposed constitution is not designed to usurp the sovereignty or
supremacy of federal law and that the passage of our constitution will
not, nor is it intended to, alter our political relationship with the
United States. It represents a further step along the path toward a
full measure of self-government.
This is our fifth attempt to attain greater self government since
Congress passed P.L. 94-584 in 1976 which granted us the authority to
draft our own constitution. When passed by referendum of the voters of
the Virgin Islands it will replace the Revised Organic Act of 1954. The
Organic Act has served as the governing law of the Virgin Islands for
fifty six years with no input from the population it governs.
On June 12, 2007, a special election was held to select delegates
from throughout the territory to draft the constitution. The keen
interest of Virgin Islanders in this process was evident from the
inception when voters elected delegates from a field of 135 candidates.
Seventeen ran at large with the remaining candidates running from their
respective jurisdictions. Thirty delegates were elected, and served as
drafters of the constitution. The elected delegates were composed of a
former Governor, four former senators, two sitting senators (elected
during the term of the convention), a former District Court Judge,
three practicing attorneys, farmers, professors, teachers and political
activists.
Upon convening in December of 2007, the Convention formed twelve
committees which were charged with conducting public hearings on the
areas which are now part of our proposed constitution. The Convention
was initially mandated by enabling Virgin Islands legislation to
finalize a draft constitution by October 6, 2008, but the period was
later extended.
The work of our Convention was impeded at the outset for six months
by a court challenge to the results of the election by an unsuccessful
candidate, and further delayed in mid-stream as the convention awaited
the balance of the operating funds appropriated by the Legislature. The
level of funding was itself an impediment with the Fifth Constitutional
Convention receiving significantly less funding then the Fourth
Constitutional Convention which met some thirty years ago.
This caused several inordinate delays in the drafting process and
necessitated an extension of the time frame for submission to our
governor. Despite these constraints, the Convention conducted a series
of well publicized public hearings, committee hearings and plenary
sessions comprising hundreds of hours of testimony and debate and many
volumes of transcribed records. These meetings were attended by Virgin
Islanders from all walks of life including but not limited to students,
political activists, several religious leaders, as well as private
citizens. We also consulted with representatives of a wide range of
leaders of several local organizations and institutions including the
President and department heads of the University of the Virgin Islands.
Unfortunately, insufficient resources and time constraints resulted
in our inability to conduct an adequate public relations campaign.
Also, the hard work of the Convention was often sensationalized and
marginalized by the media's focus on specific issues and individuals,
rather than on our substantive work.
Through it all, we are proud to report that at the end of this
protracted process, in May of last year, the convention was able to
reach the required majority consensus and our proposed constitution
passed with a two-thirds vote of 20 delegates. The document was
transmitted to our Governor on May 31, 2009, meeting our extended
deadline.
A major area of public discussion during this process was extensive
debate on the crafting of the definition of a Virgin Islander.
According to the 1917 treaty, through which the territory was purchased
by the United States from Denmark, the political rights and citizenship
of the inhabitants of the territory at the time of transfer would
subsequently be determined by the U.S. Congress. The citizenship of the
islands' population at the time of the transfer, which was
predominately comprised of former enslaved Africans and their
descendents, was not determined until ten years later. Article III of
the proposed constitution defining Ancestral Native Virgin Islander was
based on federal law emerging from that period (See Section 306 INA (8
U.S.C. 1406). It is also consistent with the definition of native
populations in the constitutions of other un-incorporated territories.
The proposed constitution provides a broader definition of a Native
Virgin Islander as a person born in the territory, or a descendent of a
native. The delegates felt that the inclusion of this definition was
imperative for several historical reasons. From the early seventies we
have experienced a dramatic decline of our native-born population.
According to a 2007 study conducted by the University of the Virgin
Islands as of 2005 the percentage was approximately 51.3 %. This
decline has significant implications for the self-identity of our
people.
The proposed constitution also provides that only Ancestral or
Native Virgin Islanders are eligible to serve as governor and
Lieutenant governor, and as members of a proposed future political
status advisory commission. These provisions address the unique culture
and political backdrop of our islands.
Additionally, a provision to exempt Ancestral Virgin Islanders from
paying property tax has been included. This provision is designed to
protect the disenfranchised native population from significant
externally motivated commercial land speculation which continues to
result in the erosion of natives' ability to retain and purchase
property. It is also consistent with several relevant General
resolutions, most recently operative paragraph 9 of the United Nations
General Assembly Resolution 63/108, which mandates that all necessary
steps be taken to protect the property rights of the peoples of the
territories on the United Nations list of non self-governing
territories. The Virgin Islands, along with American Samoa and Guam,
remain on that list today.
Similar native rights provisions are part of the constitutions of
other U.S. administered territories, specifically those of American
Samoa and the Northern Marianas, both of which have a comparable island
geographical make up, and the same unincorporated political status as
the U.S. Virgin Islands.
We strongly feel that these provisions are not discriminatory, and
do not violate federal law as it is presently applied to the Virgin
Islands and supports a compelling state interest. My fellow delegates'
testimony will address these issues in greater detail. Further
elaboration is contained in our response to the Department of Justice
analysis which has been submitted for your consideration and review.
Throughout out history our shores have remained open to people of all
cultures and ethnicities. The Virgin Islands has long been known as the
``American Paradise.'' The proposed constitution is our sincere effort
attempt to insure that our beloved territory remains our ``Virgin
Islands Home.''
Thank you again for your time and your thoughtful review of our
Constitution
______
Ms. Bordallo. I thank the former Lieutenant Governor, Mr.
James, for your testimony. And this completes the testimony
from our first panel of witnesses. I will now recognize the
members of the Subcommittee for questions that they may have,
alternating between the Majority and the Minority, and I will
begin with myself.
The first question I have is for you, Assistant Secretary
Cedarbaum, Department of Justice. What would happen if Congress
were to allow this proposed constitution to be returned
unchanged to the people of the Virgin Islands, and it was
adopted. Would the questionable provisions that you suggest
should be changed be enforceable?
Mr. Cedarbaum. Madame Chairwoman, thank you for that
question. Under the terms of Public Law 94-584, if Congress
allowed the proposed constitution to go back for a referendum
by the people of the Virgin Islands, and the people of the
Virgin Islands approved it in the referendum, the constitution
would take effect. But that process would not cure any
constitutional defects that may exist in any of its provisions.
So they would be subject to legal challenge at that point, and
the challengers would have to go to court to see whether
particular provisions would or would not be constitutional.
Ms. Bordallo. The next question is for you, Governor. If
Congress sends the proposed constitution back to the Virgin
Islands without amendment, and it is rejected, as you have
urged, in a referendum by the people, what do you see as the
next step?
Governor deJongh. If it is sent back, as I said earlier in
my testimony, I think this is an important milestone and goal
for the people of the Virgin Islands. If the Constitution is
returned and it is rejected, I would then first of all work and
immediately work with the legislature to see what we could do
to start the process of forming another constitutional
convention.
Ms. Bordallo. All right. Another question along the same
lines. Is there no way to address the concerns of some of the
convention delegates which are represented by the provisions
they included in the constitution, which they say are necessary
for the protection and the preservation of the culture and the
traditions of Virgin Islanders?
Governor deJongh. I believe overall that the work that was
done indicates a process where concerns were taken into
account. But the Virgin Islands at this point in time in its
history is represented by a multitude of individuals and
ethnicities within the islands. I think the best way for this
to be addressed, Madame Chair, is for the constitution to be
returned to the Virgin Islands and to let us vote on it to
determine exactly what happens and at what point there is any
challenge, if it passes. But as I have reiterated and stated in
my statement, I do not believe it will such, and we will get
back to a point of looking at another constitutional
convention.
Ms. Bordallo. Another question I have for you, President
James. It is my understanding that the proposed constitution
was approved by two-thirds vote of the delegates. Now was that
difficult to accomplish, or were all the delegates more or less
on the same page with regards to the constitution's content?
Mr. James. There was some difficulty in getting to where we
are today. But we did have a discussion, and we came to a
meeting of the minds and were able to come up with what we have
in front of you today.
Ms. Bordallo. And I have another question for you as well.
What do you see as the prospects for the Virgin Islands
adopting a constitution if this effort from the Fifth
Constitution convention is rejected by the voters? What do you
see? Do you see a further process going on after this?
Mr. James. I think, to be quite honest, it has been 30
years from the last. I may not see one in my lifetime. I think
that what we need to do at this present time is to move forward
with what we have. We have listened to the presentations today
by the various individuals on the daises, as myself, and they
have delivered. And it has been shown that in other areas,
things have been done by this body in order to address the
situations that may have--just like native rights and other
individuals like that.
I think that what we can do is just send it to the people
and let the people vote on it, and let us see what will happen.
But I hope that it will pass and we can amend or do whatever we
have to do at a later time.
Ms. Bordallo. Well, that is part of my philosophy, you
know, get your foot in the door, and then later on you can
either repeal or amend, you know, whatever you feel is not
right.
Mr. James. Yes, ma'am.
Ms. Bordallo. I would like at this time now to recognize
the Ranking Member, Mr. Young, for questions.
Mr. Young. Thank you, Madame Chairman. I want to compliment
the panel. You all spoke very well, other than the Lieutenant
Governor. I was not here for you, and I apologize. I had a
phone call I had to take. But I am sure yours was as good as
the rest of them.
My concern is--and by the way, the Justice Department, you
do bring up some valid points. And why would anyone want to
send back to the people to vote on something that is going to
go to court and be drug out for a period of time because I do
think some of this is unconstitutional. The fishery rights
three miles, which I am very much aware of. The recognition of
individual groups by time. You know, this happened in my state,
where we had a time frame where you had to live only a year,
and that was taken to court and was knocked down to six months.
Why six months, I don't know. But it is a long protracted
process of doing it.
Why would anybody want to--Governor, you can address it.
Why would anybody want to have us accept this and have it go
back and really end up in court. I think the Justice Department
addressed that one. So you are the Governor, I don't care which
one, or both.
Mr. Cedarbaum. I think that is a question for the Governor.
Mr. Young. OK, Governor.
Governor deJongh. Sure. I think that what we have to
consider is that ultimately all the decisions that we make are
decisions that are judged and voted on and accepted or rejected
by the people that we are professing to lead. This was a
process--and what is interesting today is that I, Senator
Richards, and the former Lieutenant Governor, Gerard James,
chair of the convention, all come to the same conclusion
through different paths. And that path is to allow us the
opportunity to take it back to the people to be able to vote on
exactly what they initially started in the process. And I
believe that while we may have the challenges, it gives the
Virgin Islanders the right in its political maturation to be
able to have that vote. And I think that is extremely
important.
I think any changes to a constitution, no matter how good
they are at the congressional level, are not consistent with
the self-governance and we have the right, and you have given
us the authority, to put forth. I think ultimately the people
will reject the constitution, and that is my belief. But I
think we have a right to at least have that vote and make that
determination, as opposed to you making the changes.
Mr. Young. But all three of you all agree then if we don't
disapprove it, it goes back to the Virgin Islands. Is that
correct?
Governor deJongh. That is how I interpret the various
statements. But I will let these gentlemen agree or disagree.
Mr. Richards. That is correct.
Mr. Young. Then why are we having a hearing for it.
Mr. Richards. Well, you are having a hearing because the
Enabling Act requires you to.
Mr. Young. OK. But what I am saying--you don't object. I
happen to think the Justice Department is right, and I don't
really agree with the Justice Department. I want you to know
that right now. If you don't know my background, you will
understand it. But anyway, that is not for you, by the way.
That is a different department.
But there are problems, though. And if it is turned down,
there won't be those problems. But if it is adopted then, then
it goes to the court process. Is that correct?
Mr. Richards. If I may respond.
Mr. Young. Yes.
Mr. Richards. There are some findings in accordance with
the Justice Department that I don't agree with myself.
Mr. Young. But that means it is going to go to court.
Mr. Richards. And rightfully so. I don't think there is any
constitutional document that has not been challenged, not even
the U.S. Constitution.
Mr. Young. OK. When it was written, it wasn't challenged.
It is challenged today.
Mr. Richards. And that is because we have a lot of lawyers.
Mr. Young. That is right. That is one thing. If I ever
became a dictator, we would have a lot of sport. I can tell you
that right now, and I am a trophy hunter. Now having said that,
I was advised, for those that might be interested, we are going
to have another hearing, Madame Chairman?
Ms. Bordallo. Yes, we are.
Mr. Young. On another issue, Governor, that you will be
interested in, and it is called the Rum Tax. But today, in this
hearing today, because it is about the constitution part of it,
I will not ask those questions today, but I forewarn all of you
about this down the line because I have some interest in this
because this is American tax dollars.
But I do again compliment you, and I will be sending you
some written questions, and hopefully you will respond to them
before we have the next meeting, the next hearing. And on this
issue, I want to make sure that the questions the Justice
Department addressed, especially when it comes to fisheries and
resource jurisdiction--because this is a slippery slope. If you
get it, I am going to get it. We have three miles. I would like
to have my 200 instead of 3 miles, like 200 belongs to the
Federal Government. I would like to have the state own that. So
we are going to make sure everything is consistent as we go
down this line.
Again, congratulations. Madame Chairman, I yield back.
Ms. Bordallo. Thank you very much, Mr. Young. And I thank
you. We will look at the other subject matter. I would like now
to recognize the representative from the Virgin Islands, The
Honorable Donna Christensen.
Mrs. Christensen. Thank you, Madame Chair. My first
question would come to you also, Assistant Attorney General.
Your opinions on the issues involving legal rights being given
to individuals defined as native and ancestral Virgin Islands,
I think you made that pretty clear. However, does the
Administration have an opposition to the acknowledgment and
definition of the terms `native and ancestral Virgin
Islanders.''
Mr. Cedarbaum. Thank you, Congresswoman. I think if those
definitions had no legal consequences whatsoever, then we would
not find them legally objectionable or inconsistent with Public
Law 94-584.
Mrs. Christensen. OK. And would you elaborate on the issue
of a senator from St. John. I think that would come under the
section entitled Potentially Unequal Legislative Districts, as
it relates to the one-man, one-vote. Are you saying that the
provision that would give St. John its own elected senator is
on its face unconstitutional? Because I have always felt that
St. John should have its own senator.
Mr. Cedarbaum. No, Congresswoman. We were not saying that
that provision was unconstitutional on its face. We wanted to
lay out, though, what we understand to be the relevant
constitutional principles for assessing whether a one-person,
one-vote problem might arise. And as we explained in our memo,
those principles involve basically the weighing of two
considerations, how big a discrepancy there is between equality
among the different districts, and how important the interests
offered by the state government are as to why there should be a
district for a particular geographic area like St. John. One
would have to balance those and look at all of the relevant
facts before coming to any conclusion on whether any particular
arrangement would be constitutional or unconstitutional.
Mrs. Christensen. OK. Thank you. Thank you for those
answers. I have another one, but I am going to try to get some
other questions in within my five minutes. I guess I would ask
this to the Governor and Senator Richards, but President James,
you could answer it if you would like to also because I have a
dilemma. The three of you have testified that the document
should be remanded to the people of the Virgin Islands as is
for a vote. And I respect that the delegates were duly elected
to draft the constitution that is before us, and I would be
loathe to make any changes just because I didn't agree with
something.
But help me to understand why it is not a dereliction of
our duty as a Congress if we should send this document that is
in violation of the authorizing legislation back to the people.
Don't we have an obligation to the people of the Virgin Islands
as the only body that can amend it to send them a document that
would withstand legal and constitutional challenge? And would
we not be disrespecting the people of the territory in not
doing that? That is my dilemma, and I wish you would help me to
figure out--I feel I would be disrespecting the people of the
territory to send them a document and ask them to come out--you
will be asking them to come out and vote on it. And it does not
meet constitutional muster. I feel like I would be derelict in
my duty, and the Congress would be derelict in its duty.
Governor deJongh. Well, Delegate Christensen, the dilemma
that you are dealing with is the very same dilemma that I dealt
with when I was initially given the proposed constitution and
why I did not immediately send it to the President, because I
did not feel when I received it that it, in fact, represented
what was required by public law, in addition to all of the
issues having to do with constitutionality. It took a court
decision, which never dealt with the issues of my concern, but
had to deal with process--and I decided that it was better to
put that process forward, allow the constitution to go through
because I look at it not just with respect to this event or
this Congress. But it is a political maturation process that
started from the 1917 to the first elected Governor to the
first elected delegate, and it is a process that we have to
respect.
On the day that I decided to send the document to the
President, the President transmitted it to the Congress, and
you are now considering it. I do believe that the people of the
Virgin Islands have a right to determine whether, in fact, they
accept it and have the challenges that will come, or they
reject it on its face. I think for us not to do that would, in
fact, be disrespectful to our constituents as voters because I
think they have a right since they did elect the delegates to
make that determination.
It is a conflicting position, and it is a conflicting
position that I initially had earlier in the middle of 2009
when I initially did not send the document. But having reached
to this point, I do believe that for the process to go forward,
for us not to abdicate the rights of self-governance and look
at Congress to write our rules and our regulations, we need for
it to go forward based on what the delegates of the
constitutional convention put forth and let the determination
lie with the process for rending the results in the vote.
Mrs. Christensen. Did anyone else want to answer that
question?
Mr. Richards. I wish also to respond. Let me say from the
onset that I am not in agreement that it is violation of the
Enabling Act. That is pointed out by the report done by the
Department of Justice Assistant Attorney General that was
submitted when the document transmitted. One of the things that
we ought to keep in mind is that the Enabling Act is some 34
years old, and a lot has transpired in the Virgin Islands since
the Enabling Act.
As a matter, our Congressman Young that just left, when he
chaired a committee on May 17 of 2000 that I testified before,
with then Governor Turnbull, Senator-present Richards, Senator
Redfield in his capacity as the state chair for the Republican
Party, myself in my capacity as state chair for the Independent
Citizens Movement, that piece of legislation was an attempt to
clarify some of the requirements of the Enabling Act. And
because we failed to be able to recognize where we are today
and what was enacted in 1974 and its applicability, I think we
find ourselves in this particular conundrum.
More importantly, I think that the resident votes of any
district, any place, any city, any state, are the persons that
have equal importance than any one of us that are elected
leaders. None of us would be elected to a position without the
resident voters. And if the resident voters have dictated
through their selection of individuals on a constitutional
convention to draft a document, then I think that these elected
voters should be intelligent enough to make a determination on
something that they can accept or do not accept. And that is
basically my fundamental concern with the issue, that if anyone
of us, whether we are elected as the Governor, Lieutenant
Governor, or Senate Presidents or members of the constitutional
convention, who in some instances were being referred to as a
minority or different opinion members of the constitutional
convention--how many times does a person have a bite of the
apple? That is like me being voting for something I did not
vote in the majority past, and then my job is to go about,
campaign, and ask it not to become law, though a majority of
individuals--I mean, what is democracy supposed to mean to us?
And I think that is basically my concern.
Ms. Bordallo. Is that it?
Mr. James. I would not say that would be a dereliction of
your duty to send it back the way it is. We were elected by the
people of the Virgin Islands to bring this product to where it
is today, and it was not just by anybody. It was done by
professionals, Lieutenant Governors, Governors, politicians,
professors. You had attorneys. You had a district court judge.
So they were all elected, and I must say that it was a cross-
section of individuals that were elected. And this proposed was
actually proposed, as I indicated, by two-thirds vote. And it
is a process. So it is the process of Congress if you will
choose to send it back. That is one of the processes that you
can use without doing any modifications. And we will be more
than happy to have the people of the Virgin Islands continuing
with their rights to fulfill and vote on it and make it pass,
or if they feel not to, then it will fail.
Governor deJongh. Delegate Christensen, could I also add
that even if it is challenged legally, we have a sophisticated
judiciary system. We have the superior court. We have the
supreme court now as appellate, and we also have the district
court. So even to the extent that there is a challenge, we can
feel comfortable that the process begins in the court system
and in the judicial system that is comprised of local, and
where local precedent is established. And you go through from
superior to the supreme to the district.
Mrs. Christensen. My times is up.
Ms. Bordallo. Yes. I thank the gentlelady from the Virgin
Islands. And now I would like to recognize the representative
from Puerto Rico, Mr. Pierluisi.
Mr. Pierluisi. Thank you, Chairwoman Bordallo. Thank you.
Thank you all for appearing. As you know, I represent Puerto
Rico, the neighboring islands of Puerto Rico. And I have to say
that I feel torn, torn because on the one hand I believe deeply
in the principle of self-government. The U.S. citizens of the
Virgin Islands, just like their fellow Americans in the States
and sister territories, should aspire to be governed by laws
that reflect their own principles and beliefs, not by laws that
are established by others. So I am all for you.
The fact is, I represent a territory, and an unincorporated
territory that has its own constitution since 1952. And that
constitution was approved by this Congress. The constitution on
its face doesn't say that Puerto Rico is an unincorporated
territory. The constitution doesn't say on its face that Puerto
Rico is subject to the territory clause of the United States
constitution, yet the courts in the U.S., U.S. courts, have
consistently so ruled since 1952 until the present time.
So even though I know that this exercise of self-government
is limited by its very nature because of the status that we
both hold, the U.S. Virgin Islands and Puerto Rico, I commend
you. You should have your own constitution. And I cannot wait
for the day that this Congress approves your constitution.
Having said all of that, I am torn because I guess now the
fact that I am a former attorney general comes in the way. It
troubles me that knowing that the Justice Department, the U.S.
Justice Department, is expressing some reservations, that I am
going to simply sitting here as a Member of Congress let the
clock run, wait 60 days, and simply allow this to go to the
Virgin Islands for a vote, and ignore the fact that I am being
told that there are some issues.
So I wonder whether--and I raise this before you as well as
before my colleagues--whether at the very least we could issue
a resolution expressing the sense of Congress that there could
be some provisions in this constitution that could be subject
to legal challenge, but that in deference to the right of self-
government of the people of the Virgin Islands, we are
returning it to the people of the Virgin Islands for a vote. At
the very least, we should do our duty. We should express what
we might collectively believe in. That is my take on this.
Again, I am all for you. I want this to happen. But
something in me tells me you cannot ignore that there are some
flaws and that you should at least try to express that when you
do what you are called to do on this occasion. So that is all I
will say.
On the rum issues, by the way, you know my position,
Governor. This is not the time or occasion. I hope we get a
hearing somewhere where we can try to find a just solution. I
have hated every minute of this controversy, and I hope we find
a just solution to it. But this is not the place or the time to
go into that.
Those are my feelings, my views. If any one of you wants to
comment on them, I will be glad to listen.
Mr. Richards. If I could just say quickly, for the record--
and I appreciate the position that you find yourself in, and a
good position that you may also place yourself in is the former
position that was held by Juan Melecio when he served as a
state electoral commission head. And the last privacito that
you all had in the late 1990, early 1980s--and that position is
a manager of the process. And I sincerely believe that
somebody--the concerns and issues raised by the Justice
Department are issues that should be allowed to be brought
before a court if the document is adopted. There is no one in
this process more important to me than the voters.
None of us, whether you are a Member of Congress, you are a
member of the Virgin Islands or you are the Governor--and I
think that irrespective of some of the concerns that we ought
to allow--although we are responsible to lead, we ought to
allow these persons that began this process to have the
opportunity to vote on this document. And I understand the
issue as an attorney. And no pun was intended earlier in
regards to your position.
Governor deJongh. If I could address both issues. The first
issue is one of if an issue is going to come up at the next
committee that goes from Alaska to Puerto Rico, we are going to
have a very long conversation. And as you well know, the
meeting that I initiated to which you went to in Puerto Rico
with our delegate, we are still waiting for an answer with
respect to a question that we asked of the Puerto Rico
delegation to get back to us on, where it is has not. And at
the committee hearing, we will have a chance, I assume, to go
into greater detail on that issue.
With respect to having a sense of the committee with
respect to the items in the constitution that the Justice
Department has brought up of issues of concern, that is clearly
in my opinion within your right to do, to give a sense. That is
something that you should consider. Irrespective of that, I
still believe, however, that the constitution, proposed and
draft constitution sent up, should in fact still go back to the
people of the Virgin Islands to be consistent to a process that
has taken us to this point. And if it takes us to a sixth
constitutional convention, then there will be a better
constitutional convention, and each one will deal with the
issues until we get there.
Ms. Bordallo. I want to thank the gentleman from Puerto
Rico. And now the gentlelady from the Virgin Islands has a
couple more questions before we go into our second panel.
Mrs. Christensen. True. And I will try to be very brief.
Thank you, Madame Chair. To the assistant attorney general. The
section in the constitution that provides for the government to
have the power to manage, control, and develop the natural and
marine resources comprising of the submerged lands, inlets, and
keys is very similar to a bill that I have introduced in
several congresses to expand the territorial submerged lands.
But the committee has never taken it up because the support was
just not there.
Would you please explain the problems you see in this
provision, and let me know if it rises to the level of
violating the dictates of the authorizing legislation? Or is it
just something that is of concern, but could be worked out?
Mr. Cedarbaum. Thank you, Congresswoman. I think our
fundamental concern is that article 12, section 2, which is the
section, as you indicated, that addresses territorial waters
and marine resources, is unclear. And to the extent that it
might be read as asserting sovereignty of the territorial
government as against the sovereignty of the United States,
that would be troubling and should be changed.
At the same time, as you mentioned, you may have a bill
before Congress--I am not familiar with that particular piece
of legislation. But as we indicated in our memo, in line with
that first fundamental point, these issues are all subject to
Congress's control. So if Congress wants to convey to the
Virgin Islands certain rights to control some of these marine
resources, that is within Congress's power, and it is free to
do so.
Mrs. Christensen. Thank you. Well, with respect to, for
example, the needing to clarify that issue, I wanted to ask
Senator Richards, as the only representative from the
legislature at this panel, if the local legislature would ever
consider reconvening the convention to consider the changes
suggested by the Justice Department before the final document
is sent to the people for vote.
Mr. Richards. I only smile because you put me in a
predicament now. The predicament is that I didn't vote for the
local legislature to conduct this Fifth Constitutional
Convention process because I sincerely believe that it is
difficult to write a document of what you want to do, where you
want to go, if you don't know basically who you are and what
you are about. And that is what the political status is about.
And so I was one of two that dissented in voting to convene a
Fifth Constitutional Convention.
I believe if, in fact, this is not adopted and we find
ourselves back to square one, and if the Congress makes any
changes to the document that is before us, it is no different
than us having voted on the revised Organic Act because now it
becomes a congressional document. And so I really can't say
what----
Mrs. Christensen. Well, I am saying if----
Mr. Richards. I can't say what the legislature will do. As
you notice from my sign, I am the Minority Leader. So I can't
speak what the majority of the members would. I really can't. I
really can't tell you.
Mrs. Christensen. Let me just ask one other question that
anybody might want to answer then. Why do you think that the
authorizing legislation provided for the U.S. Congress to be
able to amend the document before sending it back to the
people?
Mr. Richards. Well, I can answer that, at least in my
opinion, in one word, because we are still a possession.
Mrs. Christensen. And we are. That is a fact.
Mr. Richards. And they want to maintain jurisdiction over
the piece of property that they bought in 1917.
Governor deJongh. But that was the enabling legislation.
Mrs. Christensen. Yes.
Governor deJongh. That does not mean that this Congress and
this body needs to continue that. You can, in fact, send it
back and continue the maturation process that is necessary with
respect to reaching the final determination of a constitution
written by Virgin Islanders.
Mrs. Christensen. Right. We do have the alternatives before
us to send it back, or to amend it or, in fact, to reject it.
And even if this body on this side of the Capitol were to amend
it, it is still very possible that it would come back to the
territory in its current form. Thank you, Madame Chair.
Ms. Bordallo. I thank the gentlelady from the Virgin
Islands. And again I want to thank you very much, Governor, for
coming over to Washington for this hearing.
Governor deJongh. Thank you.
Ms. Bordallo. And to thank you representative from the
Department of Justice, the senator, and of course----
Mr. Cedarbaum. Thank you.
Ms. Bordallo.--my fellow colleague of many years ago,
Lieutenant Governor----
Mr. James. Thank you.
Ms. Bordallo.--and also the president of the constitution.
And I also want to remind you that the Subcommittee may have
additional questions for you. And if you could, we would like
to ask you to respond to these in writing.
Governor deJongh. Of course. Thank you very much.
Ms. Bordallo. And now the witnesses for the next panel are
all comprised of five delegates to the Fifth Constitutional
Convention. We welcome on the second panel--we would like to
recognize Mr. Adelbert M. Bryan, Mr. Gerard Marlow Emanuel, Dr.
Lois Hassell-Habtes, Dr. Eugene A. Petersen, and Mr. Douglas
Brady. Please be seated.
[Pause]
Ms. Bordallo. Lady and gentlemen, thank you very much for
joining us today. And I will now recognize you each for five
minutes, in the order that you are seated. Again, please be
assured that your full statement will be entered into the
official record, and we would appreciate your summation of the
key points. The red timing light is before you, and we may not
be as--what is the word I want to use--liberal on the second
panel. The Governor and a few of the elected officials did go
over time, but please be considerate because your full
statement will go on the record.
So again, Mr. Bryan, we will begin with you. Please
proceed.
STATEMENT OF ADELBERT M. BRYAN, DELEGATE,
FIFTH CONSTITUTIONAL CONVENTION
Mr. Bryan. Good afternoon. I have a question, please. Good
afternoon, Chair Bordallo. I have a question. You mentioned
earlier that the elected individuals would have five minutes
also, right?
Ms. Bordallo. Yes.
Mr. Bryan. So myself, Mr. Emanuel, and Ms. Habtes are
elected members of the convention.
Ms. Bordallo. Oh, well, if you are an elected official,
then you go ahead.
Mr. Bryan. Thank you very much.
Ms. Bordallo. Please try to keep it concise. Thank you.
Mr. Bryan. OK. Thank you very much. Again, good afternoon,
Madame Chair Bordallo. I am Adelbert M. Bryan, at-large
delegate of the Fifth Constitutional Convention, and I
represent the majority population of my native land. I was born
and raised in the Virgin Islands.
I would like to begin my testimony with historical facts,
national record, and quotations. ``We hold these truths to be
self-evident; that all men are created equal; that they are
endowed by their creator with inherent and inalienable
rights,'' end of quote.
Quote, ``Nothing is more certainly written in the book of
fate, than that these people are to be free; nor is it less
certain that the two races, equally free, cannot live in the
same government. Nature, habit, and opinion have drawn
indelible lines of distinction between them. It is still in our
power to direct the process of emancipation and deportation,
peaceably, and in such slow degree, as that the evil will wear
off insensibly, and their place be, on an equal basis, filled
up by free white laborers. If, on the contrary, it is left to
force itself, on human nature must shudder at the prospect held
up,'' end of quote.
The actual words of Thomas Jefferson, the man who has been
called the author of America, the former quote being the
Declaration of Independence before it being edited by the
Congress. These words strike at the very foundation of the
governmental process of the Fifth Constitutional Convention of
the Virgin Islands of the United States of America.
In 1917, the United States purchased the discovery rights
of the Danish West Indies from the crown of Denmark. Then as is
now, the preponderance of the islands' population is African
descendants. At the time of the transaction, the international
laws in effect between European nations, which included the
United States as enshrined in Article One, Section Eight of the
U.S. Constitution were called the Laws of Nations. Under the
heading of the Rights of Property, the Laws of Nations denies
sovereignty to the native occupiers of their land. It was and
is a code against nonwhites like our ancestors, who were at the
time free people, human beings, since July 3, 1848, 1863, 1865,
and thereafter the 13th Amendment to the U.S. Constitution.
The U.S. Congress took control of the islands with the
official title of Unincorporated Territory of the United States
of America, a designation the Supreme Court defined as an
appurtenance, a possession of, but not a part of the United
States. These are not fertile circumstances for the development
of self-government. As the 93-year history of the Virgin
Islands painfully indicates, autonomy is so closely regulated,
it defies definition.
Quote, ``I believe this observation will be found generally
true, that no two people are so exactly alike in their
situation or circumstances as to admit the exercise of the same
government with equal benefit, that a system must be suited to
the habits and genius of the people it is to govern, and must
grow out of them,'' end of quote. Spoken by Mr. Charles
Pinckney, delegate from South Carolina in the 1787 convention
on Monday, May 14th, in Philadelphia, Pennsylvania. Mr.
Pinckney read from a prepared speech to his fellow delegates,
offering his vision for the new nation. ``Conquest or
superiority,'' end of quote, he said, ``among other powers is
not or ought not to ever be the direct object of a republican
system,'' end of quote.
As was the case when Mr. Thomas Jefferson wrote of the
inherent and inalienable rights, Mr. Pinckney would not have
imagined an unincorporated population of African descendants.
Yet this is the crucible of the issue of self-government in the
Virgin Islands of the United States. The U.S. Constitution
still embraces the Laws of Nation that condemns sovereignty to
people of color, a Constitution that is currently defended by
an African-American President.
If not now, when will the time be right for the majority
population of the Virgin Islands to design a government suited
to their habits and genius. An appurtenance by its very nature
is temporary. Ninety-three years should be more sufficient time
for the Congress to deem native Virgin Islanders to draft an
identity for their key society.
It is a legitimate government process for an African-
descended population to choose its government, as it was for an
African-American to win the presidency. Both are lawful
ambitions that wouldn't raise an eyebrow if not for raise.
Should the Virgin Islands people apologize for aspiring to a
government more suited for their genius?
The proposed Fifth Constitution is not in contravention to
the United States Constitution. While its style may be
different, the spirit of liberty is identical. The intent is to
accommodate Virgin Islanders within the framework of the
Federal laws. Less than 20 percent of the Virgin Islands
population is other than African descendants. Most of the
minority populations are white, and they are influential and
resourceful. Should their dissenting vote on the document be
anything more than a minority protest? Is the African-American
led nation still of the psyche of Thomas Jefferson? Do we today
believe that two races equally free cannot live in the same
government? But we do agree with the third President that is in
our interest and your powers to direct the process.
In the spirit of moral human rights, dignity, and fair
play, we urge this body to accept the proposed constitution
before you as a best effort at compromise without capitulation.
The people of the Virgin Islands have called for a more
compatible government better suited to our aspirations of
growth and development.
I would thank you for your time.
[The prepared statement of Mr. Bryan follows:]
Statement of Adelbert M. ``Bert'' Bryan, Delegate, 5th Constitutional
Convention, St. Croix, Virgin Islands of the United States of America
``We hold these truths to be self evident; that all men are created
equal; that they are endowed by their creator with inherent and
inalienable rights;''
``Nothing is more certainly written in the book of fate, than that
these people are to be free; nor is it less certain that the two races,
equally free, cannot live in the same government. Nature, habit,
opinion have drawn indelible lines of distinction between them. It is
still in our power to direct the process of emancipation and
deportation, peaceably, and in such degree, as that the evil will wear
off insensibly, and their place be, on an equal basis, filled up by
free white laborers. If, on the contrary, it is left to force itself,
on human nature must shudder at the prospect held up.''
The actual words of the man who has been called the Author of
America, as quoted in the ``Autobiography of Thomas Jefferson''. The
former quote being the Declaration of Independence before being edited
by the Congress.
These words strike at the very foundation of the governmental
purpose of the Fifth Constitutional Convention of the Virgin Islands of
the United States of America.
In 1917, the United States of America purchased the discovery
rights of the Danish West Indies from the Crown of Denmark. Then, as
now, the preponderance of the islands population is African
descendants. At the time of the transaction the international laws in
effect between European nations, which included the United States, as
enshrined in Article One, Section Eight of the Constitution were called
the Laws of Nations. Under the heading of the Rights of Property, the
Laws of Nations denies sovereignty to the native occupiers of land. It
was, and is, a code against nonwhites like our ancestors; who were at
the time free people ``human beings'' since July 3, 1848, 1863, 1865
and thereafter the Thirteenth Amendment of the U.S. Constitution.
The United States Congress took control of the islands with the
official title of the Unincorporated Territory of the Virgin Islands of
the United States. A designation the Supreme Court defined as an
appurtenance, a possession of, but not a part of the United States of
America.
These are not fertile circumstances for the development of self-
government. As the ninety-three year history of the Virgin Islands of
the United States of America painfully indicates, autonomy is so
closely regulated it defies definition.
``I believe this observation will be found generally true: -- that
no two people are so exactly alike in their situation or circumstances
as to admit the exercise of the same Government with equal benefit:
that a system must be suited to the habits and genius of the people it
is to govern, and must grow out of them.''
Spoken by Mr. Charles Pinckney, Delegate from South Carolina to the
1787 Convention on Monday, May 14th, in Philadelphia, Pennsylvania. Mr.
Pinckney read from a prepared speech to his fellow delegates, offering
his vision for the new nation. ``Conquest or superiority'', he said
``among other powers is not or ought not ever to be the object of
republican systems''.
As was the case when Mr. Thomas Jefferson wrote of the inherent and
inalienable rights, Mr. Pinckney would not have imagined an
unincorporated Territory populated by African descendants. Yet, this is
the crucible of the issue of self-government in the Virgin Islands of
the United States of America.
The Constitution still embraces the laws of Nations that condemns
sovereignty for people of color. A Constitution that is currently
defended by an African-American President.
If not now, when will the time be right for the majority population
of the Virgin Islands of the United States of America to design a
government suited to their habits and genius? An appurtenance by its
very nature is temporary. Ninety-three years should be more than
sufficient time for the Congress to deem Virgin Islanders fit to craft
an identity for their tiny society.
It is as legitimate a governmental purpose for an African descended
population to choose its government, as it was for an African-American
to win the Presidency. Both are lawful ambitions that wouldn't raise an
eyebrow if not for race. Should the Virgin Islands apologize for
aspiring to a government more suited to their genius?
The Fifth Constitutional Convention draft is not in contravention
to the U.S. Constitution. While its style may be different, the spirit
of liberty is identical. The intent is to accommodate Virgin Islanders
within the framework of Federal laws.
Less than twenty percent of the Virgin Islands population is other
than African-American descendants. Most of the minority population are
whites. Not all whites are in opposition, but too many are, and they
are influential and resourceful. Should their dissenting vote on the
document be anything more than a minority protest? Is the African-
American led nation still of the psyche of Thomas Jefferson? Do we
today believe the two races equally free, cannot live in the same
government? But we do agree with the Third President that it is in your
power to direct the process.
In the spirit of enlightenment and fairplay, we urge this body to
accept the Draft Constitution before you as the Fifth Constitutional
Convention's best effort at compromise without capitulation. The people
of the Virgin Islands have called for a more compatible government,
better suited to their aspirations of growth and development.
______
Ms. Bordallo. I thank you very much, Mr. Bryan, for your
testimony. And now I would like to recognize Mr. Emanuel for
five minutes.
STATEMENT OF GERARD MARLOW EMANUEL, DELEGATE, FIFTH
CONSTITUTIONAL CONVENTION
Mr. Emanuel. Madame Chair and other distinguished members
of the Subcommittee, my name is Gerard Emanuel. I am a delegate
to the Fifth Constitutional Convention of the Virgin Islands. I
am honored to have this opportunity to appear before you on the
proposed constitution of the United States Virgin Islands.
Today is exactly two weeks before the 93rd anniversary of the
sale of the Danish West Indies to the United States of America,
at which time those islands became an unincorporated territory
of the U.S.
Our proposed constitution on the whole should therefore be
considered within the context of the unique position of the
Virgin Islands as an unincorporated territory of the U.S.,
similar to the status of our sister territories. In advance of
congressional consideration of the proposed constitution, the
U.S. Justice Department was directed by President Barack Obama
to provide its view on the proposed document. My testimony is
intended to address several issues which were raised in the
Justice Department review.
The first issue relates to the recognition of United States
sovereignty. I wish to emphasize that the work of the Fifth
Constitutional Convention of the Virgin Islands was not
intended to suggest any alteration in the unincorporated
territorial status. The proposed constitution before this body
fully recognizes the sovereignty of the United States over the
territory through its acknowledgment of the unincorporated
territorial status.
Former Chair of the United States Energy and Natural
Resources Committee Lowell Weicker, during congressional review
of the 1980 proposed Virgin Islands constitution observed that
the phrase ``unincorporated territory,'' was not an implicit
but an explicit statement of the sovereignty of the United
States. Such recognition is also confirmed in the 2010 Justice
Department memorandum, which states that a number of provisions
in the present proposed constitution considered together bring
it into substantial compliance with the Enabling Act's
requirement that the proposed constitution recognize U.S.
sovereignty and the supremacy of Federal law.
Madame Chair, another issue raised in the Justice
Department memorandum was the provisions related to the
recognition of ancestral native Virgin Islanders and native
Virgin Islanders. The rationale for the inclusion of these
sections should be seen within the context of the unique socio-
cultural and political history of the territory.
Prior to the transfer of jurisdiction from Denmark to the
United States by the treaty accession in 1917, the people of
the Danish West Indies, who are largely of African descent,
were enslaved for over 200 years with all of the attendant
abuses. On July 3, 1848, the Danish government was forced to
ratify the freedom of the enslaved ancestral Virgin Islanders
due to a meticulously planned revolt. By this act, the newly
freed Africans now considered themselves as full citizens,
equal to the Europeans for whom they still worked.
However, they were quickly disillusioned by the labor act
of January 1849, a euphemism for a code of decrees that
virtually placed them back into slave-like conditions once
again. This left them no money to invest or advance themselves
economically, socially, or politically. Our ancestors resisted
this recapitulation by Denmark for 30 years, which culminated
in a laborers' revolt in 1878 known as the Fireburn.
After this, our ancestors believed they would be fully able
to participate as citizens in their homeland. But once again,
they were disillusioned because the Danish colonial laws
provided prohibitive income and property ownership requirements
that precluded the laborers from voting and running for office.
Therefore, whether during or after chattel slavery, whenever
our ancestors sought to effectuate social and political reform,
they had to do so violently because there were no legal
mechanisms available to them to obtain their civil and human
rights.
Sadly, Madame Chair, these discriminatory laws remained in
effect for the first 20 years of American rule. The 1917 treaty
accession made provisions for Danish citizens in the territory
to either retain their citizenship or to become United States
citizens. No such choice was given to the majority native
population. Their rights were to be determined by the U.S.
Congress.
For 10 years, they were devoid of citizenship. Accordingly,
the 1927 and 1940 Citizenship and Nationality Acts defined them
as natives who are not citizens or subjects of any foreign
country. The 2009 edition of Caribbean Perspectives, a journal
published by the University of the Virgin Islands, pointed out,
``Quite apart from the mandate to create or recreate structures
of government through a local constitution to replace the
United States Revised Organic Act of 1954 was the task of
defining/redefining a political and cultural identity amid
changing demographics.''
The present Fifth Constitutional Convention has approved
the proposed constitution before you within this historical
framework. The basis for the recognition of the ancestral
native and native Virgin Islander lies in the treaty accession
and in relevant Federal statutes. This acknowledgment is
intended for the protection of the declining native population
and the preservation of the disappearing culture and traditions
of a people.
The historical context and the need for effective
reparative action represent the compelling state interest we
strongly feel justifies the relevant provisions.
In conclusion, Madame Chair, the annex to this statement,
which I am attaching for the record, contains the historical
basis for a compelling state interest to justify the provisions
for differential treatment of ancestral native and native
Virgin Islanders. I wish to thank your Subcommittee for this
important opportunity to provide testimony on the proposed
constitution of the United States Virgin Islands. Thank you,
Madame Chair.
[The prepared statement of Mr. Emanuel follows:]
Statement of Gerard M. Emanuel, Delegate to the Fifth Constitutional
Convention of the United States Virgin Islands
Madam Chair and other distinguished members of the Subcommittee,
My name is Gerard Emanuel. I am a delegate to the Fifth
Constitutional Convention of the Virgin Islands. I am honored to have
this opportunity to appear before you on the proposed constitution of
the U.S. Virgin Islands.
Our proposed constitution, on the whole, should be considered
within the context of the unique position of the Virgin Islands as an
unincorporated territory of the United States, similar to the status of
our sister territories in American Samoa and Guam, and the
commonwealths of the Northern Mariana Islands and Puerto Rico,
respectively. While the nature of the constitutional arrangements in
each of these territories varies, the commonalities which we all share
are the applicability of the Territorial Clause of the United States
Constitution and our status of un-incorporation.
In advance of Congressional consideration of the proposed
constitution, the U.S. Justice Department was directed by President
Barak Obama to provide its views on the proposed document. My testimony
is intended to address several issues which were raised in the Justice
Department review.
The first issue relates to the recognition of United States
sovereignty. I wish to emphasize that the work of the Fifth
Constitutional Convention of the Virgin Islands was not intended to
suggest any alteration in the unincorporated territorial status, but
rather to determine the parameters of the prevailing status. This has
come some thirty years since the Virgin Islands last attempted to write
a constitution. The proposed constitution before this body fully
recognizes the sovereignty of the United States over the territory
through its acknowledgement of the unincorporated territorial status.
Former Chair of the United States Senate Energy and Natural
Resources Committee Lowell Weicker, during Congressional review of the
1980 proposed Virgin Islands constitution, observed that the phrase
``unincorporated territory'' was ``an explicit statement of the
sovereignty of the United States.'' Such recognition is confirmed in
the 2010 Justice Department memorandum which states that ``a number of
provisions in the present proposed constitution considered together
bring it into substantial compliance with the Enabling Act's
requirement that the proposed constitution recognize U.S. sovereignty
and the supremacy of federal law.''
Madam Chairman, another issue raised in the Justice Department
memorandum was the provisions related to the recognition of ancestral
Virgin Islanders and native Virgin Islanders. The rationale for the
inclusion of these sections should be seen in the context of the unique
socio-cultural and political history of the territory.
Prior to the transfer of jurisdiction from Denmark to the United
States by the Treaty of Cession in 1917, the people of the Danish West
Indies, who were largely of African descent, were enslaved for over two
hundred years with all of the attendant abuses.
On July 3, 1848, the Danish government was forced to ratify the
freedom of the enslaved African Ancestral Virgin Islanders due to a
meticulously planned, nonviolent revolt by the enslaved. By this act,
the newly freed Africans now considered themselves as full citizens
equal to the Europeans for whom they still worked. However they were
quickly disillusioned by the Labor Act of January 1849, a euphemism for
a code of decrees that again virtually placed them into slave-like
conditions. They were compensated for their labor, but were charged
excessively for all their basic needs and at the end of the day had no
money to invest or advance themselves economically, socially or
politically.
Our ancestors resisted this recapitulation by Denmark for thirty
years, which culminated in a laborers' revolt in 1878 known as the
``Firebun'' staged in order to secure a living wage. After this, our
ancestors believed they would be able to fully participate as citizens
in their homeland, but were once again disillusioned. In 1852, the
Danish Colonial Laws were enacted and subsequently revised in 1863 and
1906. These laws established the guidelines for only limited native
participation in the political process in the Danish colony.
The irrefutable impact of these laws on the majority of the native
population was to continue to prevent their legitimate participation in
the political process, and to deny them citizenship. Specifically,
there were prohibitive income and property ownership requirements that
precluded the laborers from voting and running for office. Therefore,
whether during or after chattel slavery, whenever our ancestors sought
to effectuate social and political reform, they had to do so violently,
because there were no legal mechanisms available to them to attain
their civil and human rights. Sadly, these discriminatory laws remained
in effect for the first 20 years of American rule.
The 1917 Treaty of Cession made provisions for Danish citizens in
the territory to either retain their citizenship, or to become United
States citizens. No such choice was given to the majority native
population. Their rights were to be determined by the United States
Congress. The natives did not become U.S. citizens immediately, and for
ten years they were devoid of citizenship. Accordingly, the 1927 and
1940 U.S. Citizenship and Nationality Acts defined them as ``natives
who are not citizens or subjects of any foreign country.'' The
territory was governed by the United States Navy from the transfer in
1917 until 1931 when civilian rule was instituted by way of governors
appointed by Washington.
By the 1960s, the territory experienced an unprecedented growth in
population, primarily through immigration to fill labor needs in the
developing tourism and industrial sectors. Reliable estimates of new
residents totaled 34,000 between 1960--1970 alone, exceeding the entire
1960 population of the territory. It was noted in the 2009 journal
``Caribbean Perspectives'' a publication of the University of the
Virgin Islands that:
``The temporary worker system which had been legislated by the
U.S. Congress pursuant to U.S. immigration laws facilitated the
movement of mainly African descendents from other parts of the
Caribbean to the U.S. Virgin Islands to meet growing labour
needs. Concerned with the projected financial impact of the
extension of public services to the new residents, the U.S.
Virgin Islands legislature sought to use its local authority to
regulate access to education, housing and other areas. This was
later overturned by the U.S. courts and applicability of U.S.
equal protection laws. A specific U.S. immigration measure
enacted in 1981 also provided for a process of achieving
permanent residency status in the territory, and ultimately
U.S. citizenship.'' 1
---------------------------------------------------------------------------
\1\ Caribbean Perspectives, A Journal of the Eastern Caribbean
Center of the University of the Virgin Islands, January, 2009.
---------------------------------------------------------------------------
It is within this historical context that four constitutional
conventions were held in the U.S. Virgin Islands between 1964 and 1980.
As the same University of the Virgin Islands article pointed out:
``Quite apart from the mandate to create/re-create structures
of government through a local constitution to replace the U.S.
Revised Organic Act of 1954 was the task of defining/re-
defining a political and cultural identity amid changing
demographics.'' 2
---------------------------------------------------------------------------
\2\ ibid
---------------------------------------------------------------------------
The present Fifth Constitutional Convention has approved the
proposed constitution before you within this historical framework. The
provisions of recognition of native Virgin Islanders were included in
the text in the wake of the continued decline of the native population,
and the gradual disappearance of Virgin Islands culture and traditions.
Similar provisions appear in laws and agreements protecting native
populations in other United States territories.
The basis for the recognition of the ancestral and native Virgin
Islander in the proposed constitution lies in the Treaty of Cession and
in relevant federal statutes, and is intended for the protection and
preservation of the culture and traditions of a people. The historical
context, and the need for effective reparative action, represents the
compelling state interest we strongly feel justifies the relevant
provisions.
Conclusion
Madam Chair, the Annex to this statement, which I am attaching for
the record, contains the historical basis for a compelling state
interest to justify the provisions for differential treatment for
ancestral and native Virgin Islanders. I wish to thank this
Subcommittee for this important opportunity to provide testimony on the
proposed constitution of the U.S. Virgin Islands.
______
Annex
Historical Background Utilized As Support for Differential Treatment of
Ancestral and Native Virgin Islanders
Africans who are the ancestors of Ancestral Natives and Natives,
were enslaved for over two hundred years in the Virgin Islands. During
this time they were subjected to multiple political, social, cultural,
religious and economic abuses and were denied their inalienable human
rights.
After slavery officially ended on July 3, 1848, each
planter was compensated at $50.00 per ex-slave, while the ex-slaves
received nothing for hundreds of years of forced labor. 1
A Labor Act of January 26, 1849 was instituted by the
planters to keep the newly freed laborers in slave-like conditions.
This lasted for 30 years until the ``Firebun'' of 1878 forced its
demise. 2
In the late 1800's ``...judges, prison officials,
planters and police banded together against the laborer to capitalize
on his labor. The judge would imprison a laborer on the basis of a
complaint from the employer. Once in jail, as punishment, the prisoner
would be sentenced to work on one of the estates without compensation
The prison officials and police would be responsible for enforcing the
judge's decree.'' 3
The Colonial Council on St. Croix passed laws ``...in an
attempt to control the laborers and to try to revert the economic and
social conditions of the laborer to pre-emancipation and pre-labor riot
days.'' 4
Two of the above laws were 1) life imprisonment for
stealing sugar cane; and 2) imprisonment for debt.
When land was provided to the laborers, the worst land
was sold to those who wanted to farm. For example, agricultural
depleted estates that were a financial loss and which the government
was anxious to dispose of, were sold to the laborers. 5
Steam Ship Operators paid female coal workers worthless
silver coins. In 1892, Queen Coziah had to lead a protest to stop this
illegal discriminatory practice against the African female laborers.
6
Due to hard economic times in the late 1800's and early
1900's laborers were forced to migrate to other areas in the region
such as Panama to make a living where they were paid slave-like wages.
``Meanwhile, all the economic benefits and the white collar jobs were
reserved for white Americans.'' 7
Many Virgin Islanders lost their lives in Panama from
malaria and job related accidents. 8
A 1902 Commission observed that Denmark spent ``...too
much on government officials and soldiers and not enough on schools and
hospitals...More attention should be paid to agriculture.''
9
The planters were assisted but not the laborers. (ibid.)
Several homesteading attempts were instituted; however,
the majority of the best agricultural land was used for growing sugar
cane, and thus the island of St. Croix was retained as virtually a
mono-economy with little if any economic diversification that could
have benefited the laborers, many of whom were experiencing
starvation.(ibid. p. 224)
From the end of slavery until 1936, most laborers were
prevented from voting or running for any elected office due to the lack
of emphasis on proper education as noted by a Danish Commission in
1902, and restrictive income and land qualifications imposed by
Colonial Laws from 1852 up to 1906. These remained in effect for the
first 19 years of U.S. rule of the Virgin Islands.
In 1917 only 5.5% of the population could vote. The vast
majority of the eligible voters were conservative white male
landowners.) The majority of those deemed ineligible were natives.
10
For 88 years after slavery, the majority of native Virgin
Islanders were disenfranchised. Natives have only been enfranchised for
73 years, and have only had the right to elect a governor for 38 years.
(See 1936 Organic Act, C. 699, 49 Stat. 1807, & the 1968 Elective
governor's Act, PL 90-496.)
In the Treaty of Cession between Denmark and the United
States, no provisions were made to redress the long history of
injustices and discriminatory practices perpetrated on the natives,
which occurred under Danish rule. (39 Stat. 1706)
Preferential treatment was specifically accorded to the
Danish Citizens in the treaty. Only Congress was given the authority to
determine the civil rights and political status for the majority of the
native population who had no citizenship status whatsoever. Natives
were not given any rights to choose their status or civil rights.
(ARTICLE VI of the treaty.)
The Virgin Islands was made an unincorporated territory
of the U.S. they were owned by, but were not fully a part of the U.S.
Natives were not made full U.S. citizens. Only fundamental protections
of the U.S. Constitution were extended to them. Only Congress could
determine what additional provisions of the U.S. constitution would
apply. This was totally unlike the pattern of political development
used for the mainly white residents in other U.S. territories before
the Spanish American War. (See Boyer pp. 88-104.)
It took Congress ten years to provide a limited version
of U.S. citizenship by statute to V.I. natives. During that ten year
period, natives were treated in a subhuman fashion and were not
accorded the full protections or privileges of the U.S. Constitution.
44 Stat. 1234 in 1927 and 8 USC., Sec. 1406 in 1940.
Up until today Virgin Islanders are prevented from
obtaining the full protections and rights in the Virgin Islands that
all other U.S. citizens living in a state obtain at birth or after
being naturalized.
The U.S. citizenship status of V.I. natives is not
guaranteed by the 14th amendment of the U.S. Constitution as it is for
all naturalized citizens or for persons born in a state or on a
military base,). 11
For the first 10 years of U.S. rule, V.I. natives had no
right to trial by jury in civil cases, no locally written constitution,
no right to vote for president, no voting or non-voting representatives
in either house of Congress, could not elect a Governor, the vast
majority could not vote for their local representatives, or run for any
office due to income and property ownership restrictions, and they were
not properly educated. (See Boyer pp. 109-144; & Willocks ch.'s 11-13,
pp. 251-288)
Native Virgin Islanders were the victims of racist acts
by Naval governors, who were specifically chosen from southern states
where racist acts towards Blacks were commonplace. The following is a
direct quote from one of the governors, namely Sumner Kittelle. ``I
cannot too strongly urge that there be no change made in the organic
law until a full generation has elapsed...and above all the white
element must remain in the lead and in supreme control.'' 12
Even other government officials and soldiers performed
racist acts during military rule, which lasted for the 14 years after
the transfer from Denmark. Any attempts by natives to change their
conditions were met with fierce resistance by these U.S. appointed
officials.
The best jobs were reserved for whites or light-skinned
persons. Local women felt compelled to copulate with white men to
produce lighter-skinned offspring, who they hoped would not be
subjected to the abuses and other atrocities that they faced, (the piel
clara syndrome). 13
Natives were shot at, or forced to perform normally
private acts in public. Native leaders such as David Hamilton Jackson,
Randolph Innis, Octavius Granady, Charles Emanuel, James Roberts,
August Burnet and Rothschild Francis were maliciously discredited, and
vilified by U.S. appointed Governors and other officials for writing
about and otherwise trying to stop the innumerable abuses against
natives. 14
The laborers were paid starvation wages such as 20 cents
a day immediately prior to the Transfer to U.S. rule. They formed a
labor union and staged a six-week strike, which placed tremendous
additional hardships on them in order to receive a reasonable wage.
They were forced to leave their homes due to lack of money.
15
Naval Governors had ``...military, legislative, civil and
judicial powers and the power to abolish the colonial
councils.16 Therefore, under U.S. rule the presidentially
appointed Governor was virtually a dictator, and in many instances
performed as such to the detriment of natives. The locals had little or
no recourse when they took their fight to court. Even there they were
discriminated against by the lack of the application of certain parts
of the U.S. Constitution to the Virgin Islands, (such as trial by jury
in civil cases), and by the racist rulings of judges appointed by the
Naval Governors.
Some judges were elected under Danish rule, but as
indicated before not by the majority of the population due to the
prohibitive voting restrictions. 17
The Naval Government resisted providing civil rights to
the natives, such as Universal Suffrage, an elected governor, local
representation in Washington, a constitution and civil government.18
Thus natives were denied most of these rights for almost 20 years under
U.S. rule, (and some rights are still being withheld by the federal
government). This continued the disenfranchisement pattern that had
existed under Danish rule from 1848 after slavery had ended. Hispanic
natives were denied the right to vote even with the passage of the 1936
Organic Act because of an English literacy requirement.19
Before granting Virgin Islanders U.S. citizenship en
masse and by statute in the 1920's, Congress even considered and
actually attempted ``annexing the Virgin Islands to Puerto Rico'',
without even seeking to obtain the permission of Virgin Islanders. It
was only due to massive local protests by natives, that this was not
done.20
Local leaders and Virgin Islanders abroad agitated for
civil government, a local constitution and land grants for locals in
the early 1920's. However their pleas fell on the deaf ears of both
local and national officials.21
Naval governors appointed judges who were assigned to
persecute any natives who sought to implement changes for the
improvement of government for locals. Governor Philip Williams
appointed George Washington Williams in 1924 for this express purpose
despite protests from natives.22
The Naval government intimidated the local press. Native
editors were imprisoned allegedly on charges of libel.23 ibid. p.266
Government employees were intimidated and some fired for
standing up for changes that would help Virgin Islanders.24 ibid. p.
267
Taxation without representation occurred in the 1920's.
Sugar imported into the U.S. was taxed, which caused layoffs. Since
locals had no representation in either house of congress and could not
vote for president, they had little or no viable way of getting their
plight heard by federal officials.25 ibid. p. 267
Workers were forced to leave their families and homeland
to migrate to other countries such as Panama, Cuba and Puerto Rico to
find work. 26ibid. p. 269.
Naval Officials only viewed the problems of natives as
economic ones and implemented some economic initiatives. The Native
leaders pushed for political reform such as universal suffrage and
locally-elected representatives. Their cries were ignored by local
officials and those in Washington until almost an entire generation had
passed amid discriminatory acts, flagrant and outright violations of
the civil rights of natives by the whites under military rule in the
1920's.27 ibid. p. 269.
Many other discriminatory acts, flagrant and outright
violations of the civil rights of natives by the whites under military
rule in the 1920's.28 ibid. pp. 282-287
At one time in the 1930's, 29 white men owned 80% of St.
Croix and controlled the colonial council. They resisted tax increases
on their income and property, as well as homestead programs for the
local natives.29K ibid. p.296
The federal government instituted homestead programs in
the 1930's, which helped locals suffering from unemployment, but
according to Willocks, ``...whatever improvement was made in the
unemployment situation was offset by increases in the non native
population, due to immigration and a high birth rate.''30
ibid. p.300 (Locals had and still have no control over U.S. Immigration
laws which are particularly injurious to their exercise of their
political right to choose their leaders and approve constitutional or
political status documents. When applied to the V.I. due to the small
and easily affected population numbers and composition, the result can
and has been detrimental to Native Self-Determination attempts such as
ratifying two local constitutions in the late 1970's and early 1980's.)
Although the Fair Labor Standards Act was passed, an
amendment to it in 1941 discriminated unfairly against native laborers
because it prevented the favorable wage increase provision from being
applicable to the V.I.31 ibid. p. 300
Even though the CCC was brought to the V.I. and did
provide training and benefits, the educational programs were not
``...widened...to include the training which enrollees receive in the
United States.''32 ibid. p. 303
St. Croix natives could not get a local 12th grade
education until 1935, which was 18 years after being under U.S. rule.
This affected their ability to obtain higher education and prepare
themselves for assuming positions of leadership.33 ibid. p. 304
Women were denied the right to vote until1936 to prevent
strengthening the black vote, since women made up the majority of the
population.34 ibid. p. 309
Military bases established in the V.I. before World War
II, increased racism here. Some military personnel brought their racial
attitudes and behavior with them. Many confrontations occurred, and to
not offend the white members of the military or lose their business,
many local white businesses refused to serve native Blacks.35 ibid. p.
317
Natives originally could not participate in the armed
forces. Those who received permission had to volunteer after
petitioning to have this privilege. Some Natives died as a result, but
all experienced blatant racism in Puerto Rico and in the U.S. Some of
them indicated that they were treated and got along better with the
German prisoners of wars than they did with the White American
servicemen.36 ibid. pp. 318-319
The Legislative Assembly passed a bill into law against
discrimination because of the expected increase in tourism and white
visitors to the territory beginning in the early 1950's. This was to
offset the same kind of increase in racism that had occurred when the
military came here during World War II. White business owners opposed
the law arguing that ``...such a bill would be bad for tourism, because
tourists who were accustomed to segregation would be forced into
integration. This would chase tourists from the Virgin Islands, which
would result in the hotel and resort industry suffering considerable
losses.''37 ibid. p. 326
Policies prejudicial to natives and favorable to persons
from the U.S. by some appointed Governors even after military rule had
ended in 1931 continued, especially under Governor Archie Alexander in
the mid 1950's.38 ibid. p. 329-330
Laurence Rockefeller bought 2/3's of St. John to turn it
``into a millionaire's retreat.''39 ibid. p. 332
Even though he eventually turned the land over to the
National Park, ``natives soon found themselves victims of racial and
economic discrimination. For example, the Caneel Bay Resort, a part of
the national park, was opened to the public, but did not cater to the
natives; the natives were being denied the opportunity to purchase land
around the exclusive areas. In short, the national park was on the
verge of taking over the island and turning it into a millionaire's
club.''40 ibid. p. 333 This has occurred, and the Park
constantly discriminates against natives. The most recent example is
its refusal to grant land for public purposes, such as for a school for
the native population to avoid them having to travel off-island to
attend high school daily, while conversely allowing private businesses
such as a hotel to occupy park land for over 40 years, for private
benefit.
The 1960's produced the greatest population growth
primarily by immigration that the Virgin Islands had ever seen during
American rule. By 1965, natives had become a minority in their
homeland. Between 1950 and 1965, the population of every other ethnic
group other than natives had more than trebled. Our relatives and
friends from the other Caribbean islands went from 1,000 to 10,000.
Puerto Ricans went from 3,000 to 9,700. Continentals went from 1,500 to
6,500.41 Boyer pp. 255-256 Natives have still not recovered from the
inordinate burdens placed on the infrastructure, such as roads,
schools, social services, health care, water and power, etc.
Natives do not have any control over population growth by
immigration, and thus their right to vote for their constitution and
their final status is being threatened by immigrants from the U.S. and
elsewhere, who have outnumbered them since the 1960's. This is a direct
and flagrant infringement on the right of natives to self-determination
as guaranteed under international law.42 (See the United Nations
Charter, the International Covenant on Civil and Political Rights,
Resolutions, 1514 (XV), 1541 (XV) and 35/118.)
The application of U.S. immigration laws and the freedom
of immigrants to buy land in the V.I., have also affected the ability
of natives to purchase and retain land for homes and other enterprises
in pursuance of the American dream in the V.I. This was specifically
noted among other impacts of cultural tourism in a 1969 doctoral
dissertation by Martin Garson Orlins. The homes built by immigrants
from the U.S. in particular, (some of whom are rich retirees, who can
afford to build extravagant mansions), in many instances have driven
property values sky high, and thus increased property taxes to a point
beyond which many natives who were fortunate to buy land, cannot afford
to keep their property. Many have been forced to sell property they had
wanted to keep in their family for their children, grandchildren, and
other relatives.43 See study of Martin Garson Orlins in Boyer, pp. 254-
256.
Others who would like to purchase land cannot afford to do so.
There are also many stories about price reductions for land offered to
whites that are being denied to natives.
Gentrification, which was predicted over 30 years ago by
Dr. Marilyn F. Krigger, a native U.V.I. professor, is again threatening
the realization of the compelling state interest of diversity and the
right of natives to buy land and live where they choose on the islands.
The islands are being divided into enclaves for the rich and famous on
the one hand and enclaves for the poor natives on the other.44Boyer,
Footnote 93, p.282.
Furthermore, natives are being forced once again to
relocate to other places and leave their homeland where their relatives
and friends reside and where all of their fondest memories are. There
is a cultural tie or relationship to the land that some migrants do not
understand, and it is difficult for many natives to simply migrate and
leave all they have worked for and built behind, as persons who migrate
here voluntarily do.45
At the rate that immigration is occurring, many Natives
are being forced to leave their homeland. They soon will become more
and more of a marginalized minority in their homeland, and will not be
able to elect their political officials such as senators or even their
highest official, the Governor.46
Even writing their constitution has been criticized
because of the protections placed therein to offset the adverse effects
on natives caused by the historical discrimination by government
officials in the V.I. under U.S. rule, the indiscriminate application
of U.S. immigration and other laws to the territory, and the threat to
the preservation of the traditional culture and way of life of the
natives.46 Personal experience
Recently a celebration of piracy that included the
picture of President Obama in a pirate outfit occurred. This was
totally reprehensible to me. Over the years, the increased presence of
persons from the U.S. mainland has brought with them an infusion of
questionable cultural practices that are at variance and sometimes
disrespectful to the local culture. The pirate festival and contest, is
one such practice, which is threatening to become an institution.
Pirates were criminals who used these islands to store their booty.
There is nothing positive about them that we should be celebrating or
commemorating.47 (Personal experience)
Natives are not similarly situated with immigrants from
the U.S. or from other countries. The right to U.S. Citizenship by
natives is tenuous at best, because it is only guaranteed by a statute
and not by the U.S. Constitution. Two federal officials even
recommended granting natives U.S. Citizenship by the 14th Amendment to
the U.S. Constitution in the early 1980's when the Fourth Draft
Constitution was being considered by Congress. One of them pointed out
an instance in the mid 1970's where congress passed a law that removed
the right of V.I. natives to be U.S. citizens; however, it was caught
in time, and no harm was inflicted. This could never happen to non-
natives or U.S. citizens living in one of the states.48 See Herman
Marcuse's testimony at an October 21, 1981 Hearing of the Senate's
Energy and Natural Resources committee regarding the Fourth
Constitution of the V.I. of the U.S.A.
If the status quo is allowed to continue, these islands
will completely become an enclave for the rich and famous, and the
natives along with the rich culture they have created, preserved and
practiced, will disappear.49
Notes
}}1 Willocks, Harold, ``The Umbilical Cord,'' 1995. p. 193.
}}2 ibid. p. 192.
}}3 ibid. p. 220
}}4 ibid, p. 220
}}5 ibid. p. 221
}}6 ibid. pp.221-222
}}7 ibid. p. 223
}}8 ibid. p. 223
}}9 ibid. p. 223
10 ibid. p. 314
11 See Herman Marcuse's testimony at an October 21, 1981
Hearing of the Senate's Energy and Natural Resources Committee
regarding the Fourth Constitution of the V.I. of the U.S.A.
12 12 Boyer, William America's Virgin Islands, A History of
Human Rights and Wrongs. 1983, pp. 115-116.
13 (Willocks, p. 283.)
14 Boyer op. cit. p. 114-115
15 Willocks. op. cit. p. 229
16 ibid. p. 253
17 ibid. p. 255
18 ibid. p. 263
19 Act of Congress, June 22, 1936, Ch. 699, Sec. 17, 49
Stat. 1811)
20 Willocks p. 263
21 ibid. pp. 264-65; & Boyer pp.142-145
22 Willocks p. 265
23 ibid. p.266
24 ibid. p. 267
25 ibid.
26 ibid. p. 269
27 ibid.
28 ibid. pp. 282-287
29 ibid. p.296
30 ibid. p.300
31 ibid. p. 300
32 ibid. p. 303
33 ibid. p. 304
34 ibid. p. 309
35 ibid. p. 317
36 ibid. pp. 318-319
37 ibid. p. 326
38 ibid. p. 329-330
39 ibid. p. 332
40 ibid. p. 333
41 Boyer pp. 255-256
42 See Ch. 11, Art. 73, Sec.'s (a-e) of the United Nations
Charter, the International Covenant on Civil and Political
Rights, Resolutions, 1514 (XV), 1541 (XV) and 35/118.
43 See Martin Garson Orlins' study in Boyer, pp. 254-256.
44 Boyer, Footnote 93, p.282.
45 Personal experience
46 Personal opinion
47 Personal experience
48 See Herman Marcuse's testimony at an October 21, 1981
Hearing of the Senate's Energy and Natural Resources Committee
regarding the Fourth Constitution of the V.I. of the U.S.A.
49 Personal opinion
______
Ms. Bordallo. I thank you very much, Mr. Emanuel, for your
testimony. and I now recognize Dr. Hassell-Habtes for five
minutes.
STATEMENT OF LOIS HASSELL-HABTES, PH.D., DELEGATE, FIFTH
CONSTITUTIONAL CONVENTION
Dr. Hassell-Habtes. Good afternoon, Honorable Madeleine
Bordallo, Chairperson, and our delegate to Congress for the
U.S. Virgin Islands, Donna M. Christensen.
I am grateful and appreciative to be here today to
represent the people of the Virgin Islands as an elected
delegate to the Fifth Constitutional Convention. I would like
to express my deep and sincere thanks and appreciation to the
President of the United States, Barack Obama, for sending the
constitution of the United States Virgin Islands to Congress.
First of all, I bring greetings from the people in the
Virgin Islands who understand the time has come for us to be
governed by a constitution of the Virgin Islands and not by a
Organic Act written in 1936 and amended in 1954. There have
been many Virgin Islanders who attended, listened to, or
reviewed the committee meetings, hearings, plenary sessions,
and their voices and concerns have been included in this
document.
Just as the drafting of the U.S. Constitution, arguments,
debates, differences of opinions have not kept the delegates of
the Fifth Constitutional Convention from a united front when it
came to ensuring that the people voice and future generations
of this territory are protected and governed accordingly.
Today I further bring calm, peaceful waves from our serene,
beautiful islands, which demand a certain culture. We have
living and traditions which have stood the test of time. Great
are our ancestors who have kept these traditions going for
generations to come. As Virgin Islanders, we do not have a
choice of letting go of these traditions of which we are a
part. For who gives us the right to stop what has been passed
on from generation to generation? What we know is that these
traditions were passed on to protect us, and inherently denotes
a way of living to many of us is not easy, but necessary and
respectful to our environment. This document in front of you
has taken the necessary steps to preserve our traditions and
way of life.
As chair of the preamble, anthems, symbols, bill of rights,
and human rights committee, we held committee meetings and
hearings on all three islands in the territory, which were open
to the public, well-publicized in local newspapers and radio,
and well-attended. Most importantly, members of this committee,
as well as testifiers, presenters, and people of the Virgin
Islands who attended these meetings, wanted our preamble to
present the history of the Virgin Islands people, who have been
inclusive and accepting of the many people who have migrated to
the territory, who have built and contributed to the benefit of
these islands. We feel our preamble does just that.
The intent under the provisions addressing territorial
waters and marine resources and submerged lands was not to
usurp the Federal laws, but to ensure the protection of the
marine resources and submerged lands. Members of this committee
felt that every person in the territory has a right to an
environment which is protected and preserved without pollution
and degradation.
I am hopeful that today success can be achieved for our
people and for future generations of the United States Virgin
Islands. Thank you.
[The prepared statement of Dr. Hassell-Habtes follows:]
Statement of Lois Hassell-Habtes, Ph.D., Delegate to the Fifth
Constitutional Convention; Chair, Preamble, Anthems, Symbols, Bill of
Rights and Human Rights Committee; Committee Member, Education, Youth,
and Culture; Committee Member, Economic Development and Labor;
Committee Member, Citizenship, Virgin Islands Rights, Environment. &
Cultural Preservation
Honorable Madeleine Bordallo, Chairperson of the Subcommittee on
Insular Affairs, Oceans and Wildlife, Committee Members, officials,
ladies and gentlemen:
I am Lois Hassell-Habtes, an elected delegate to the Fifth
Constitutional Convention of the U.S. Virgin Islands. I am grateful,
and appreciative to be here today, to represent the people of the
Virgin Islands.
Let me officially say thank you to our Virgin Islands Delegate to
Congress, The Honorable Donna M. Christensen for her work in getting us
here today. I am proud to be a part of this progressive movement in the
Virgin Islands towards shaping our future for generations to come.
First of all, I bring ``greetings'' from the people in the Virgin
Islands who understand the time has come for us to be governed by a
Constitution of the Virgin Islands, and not by an Organic Act written
in 1936 and amended in 1954. I am certain that we are here because of
strong leadership in this convention which by court order addressed the
legislative mandate to forward the Constitution to the President of the
United States.
Let me state unequivocally, that many delegates, and people of the
Virgin Islands, who attended, listened to, or participated in the many
committee hearings and plenary sessions, have despite differences of
opinion extended their support for this process. But, just like the
drafting of the U.S. Constitution, arguments, debates, and differences
of opinions. We remain united in our effort to ensure that future
generations have the opportunity for full participation in their
government.
All delegates signed and agreed to respect and follow the rules and
regulations of this Fifth Constitutional Convention, headed by
President Gerard Luz James II. This led to a two thirds vote on the
Constitution of the Virgin Islands, so that we could move forward.
Today, I further bring calm, peaceful waves from our serene,
beautiful islands, which demand a certain culture, way of living, with
rich traditions, which have stood the test of time. Great are the
ancestors who preserved these traditions for generations. As Virgin
Islanders, we do not have a choice of letting go of these cultural
traditions of which we are a part. For who gives us the right to stop
what has been passed on from generation to generation.
What we know is that these traditions were passed on to protect us
as a people. These traditions inherently denote a way of living that to
many of us, is not easy but necessary and respectful to our
environment.
However, as I testify before you today, it is with an understanding
of a historical disconnect between the people of the Virgin Islands and
the existing territorial/federal relationship. As delegates we are
acutely aware of the reality that the Virgin Islands electorate has
voted against certain provisions contained in the previous proposed
constitutions. The Fifth Constitutional Convention has worked
diligently to include their recommendations in our proposed
constitution.
I will specifically address the two major committees on which I
served, Preamble and Education and Culture.
THE SOVEREIGNTY OF THE UNITED STATES:
It should be emphasized that the Fifth Constitutional Convention
began with the mandate that all committee Chairs ensure that their
committee members consider the language contained in the fourth
proposed constitution.
As Chair of the Preamble, Anthems, Symbols, Bill of Rights, and
Human Rights Committee I held committee meetings and hearings
throughout the territory. These meetings were all open to the public,
well publicized in the local newspapers and on the radio, as well as
and well attended. We feel that we succinctly delineated the
sovereignty and supremacy of federal law. We are well aware that as an
unincorporated territory, we have only the authority authorized by
federal law and recognized this document is not intended to change the
status document.
The Department of Justice has expressed concerns with certain
provisions in our proposed Constitution. These provisions, however, can
inherently be traced back to the impact of increased immigration to the
territory as a result of federal which has stimulated economic
development, but which has also caused a certain disconnect among the
native Virgin Islanders. We are of the view that certain provisions are
necessary to address this disconnect, and to ensure a homeland for
future Virgin Islanders.
Most importantly, members of this committee, as well as testifiers,
presenters, and people of the Virgin Islands who attended our meetings
wanted the Preamble of the proposed constitution to present the history
of the Virgin Islands people who have been inclusive and welcoming of
all groups who have who have chosen to make the Virgin Islands their
home. We feel that the Preamble does just that.
EDUCATION AND CULTURE:
The rapid growth experienced by Virgin Islands society has resulted
in significant overcrowding of our schools. Therefore the quality
education received in small, attentive, loving classrooms of locally
trained teachers of which we were accustomed has changed to overcrowded
schools and a need for more teachers and educators who better
understand the students, their culture and their island home.
We are a proud people who have struggled and toiled in their land
for progress and benefits for their people and now find themselves
competing for their very existence and are losing the battle. We must
fight to ensure that our people are properly educated and the culture
which defines this land is protected and preserved for generations to
come.
BILL OF RIGHTS PROVISIONS:
Having reviewed Assistant Attorney Generals' review of the bill of
rights this provision within the Constitution, it is clear that
protections for the people, including ``the dignity of the human
being,'' and ``the right to a reasonable expectation of privacy'' could
burden or constrain the local government. However, the relevant
committee that dealt with this section felt it was important that these
rights are extended to the people through their inclusion in the Bill
of Rights.
TERRITORIAL WATERS, MARINE RESOURCES AND SUBMERGED LANDS:
The Committee on Citizenship, Virgin Islands' Rights, the
Environment, and Cultural Preservation's intent was to make sure that
we also included the protection of the territorial waters, and its
submerged lands not to usurp federal law. Members of the committee felt
that every person in the territory has a right to an environment which
is protected and preserved, without pollution and degradation.
Therefore, committee members felt that by promoting conservation
efforts, we would be able to secure ecological development and
conservation of our land, waters and their ever diminishing resources.
This was not to usurp the federal government's control.
In closing, I have shared with you the intent of the Delegates of
the Fifth Constitutional Convention in writing the Constitution of the
Virgin Islands. We have long been and remain ready for enhanced self
government. I remain hopeful for fruition of our goals
______
Ms. Bordallo. Thank you very much, Dr. Hassell-Habtes, for
your testimony. I now recognize Dr. Petersen.
STATEMENT OF EUGENE A. PETERSEN, DVM, DELEGATE, FIFTH
CONSTITUTIONAL CONVENTION
Dr. Petersen. Madame Chair, ladies and gentlemen of the
Committee on Natural Resources, and the Subcommittee on Insular
Affairs, Oceans, and Wildlife, my name is Dr. Eugene Petersen,
and I would like to thank you for this opportunity, on my own
behalf as a citizen of the Virgin Islands of the United States.
While I am a member or a delegate to the Fifth
Constitutional Convention, I am not here today representing
that body. I felt it necessary to testify as one of the five
delegates who voted in opposition to the adoption of the
proposed Virgin Island constitution in its present form before
you today.
I was born in St. Croix, the United States Virgin Islands,
one of the islands that comprise the former Danish West Indies.
My ancestral ties to the island of St. Croix can be traced back
to the period of emancipation of the slaves in 1848 and
possibly beyond that. I have resided on St. Croix my entire
life except for a brief period where I pursued my education
here in the United States. And upon my return home, I practiced
there as a veterinarian for over 25 years.
I was elected as a delegate to the Fifth Virgin Islands
Constitutional Convention in 2007, which is in recess at this
time awaiting the return of the document from the U.S.
Congress. It is with great pleasure and humility that I accept
this opportunity to testify before this great body today
concerning the adoption of the constitution for this
magnificent territory of the Virgin Islands of the United
States.
Faith and conviction has brought me here today, faith that
the diverse population of the Virgin Islands can live together
as one, and the conviction that the people of my homeland
desire to do the right and just thing concerning home rule and
self-governance by the entire population of these Virgin
Islands, of which I am so proud. I want to make it abundantly
clear that I strongly support the adoption of a constitution
created by the citizens of the territory and for the citizens
of the territory. It pains me to be here today asking the U.S.
Congress to modify and to make changes to a document created by
the elected officials representing the people of the Virgin
Islands.
However, it is my opinion that there are portions of this
proposed constitution that if adopted will do irreparable harm
to the social and economic fabric of the territory. Many of us
today are more qualified than I am to testify accurately on the
historical and constitutional relevance of this document, which
I am fully conscious of. However, it is the social and the
economic impact that is problematic and raises concern for many
of the citizens with whom I confer.
As I mentioned before, the Virgin Islands is a diverse
community which is comprised of many citizens from various
parts of the world. Many of the current population migrated to
the territory over a long period of time, establishing roots
and contributing to the development of the territory. Many were
born in the territory of parents or grandparents who migrated
here. And many are first generation citizens who live and
worked in the territory for many years, creating social and
economic base.
These citizens consider themselves true Virgin Islanders,
and no other existence besides the life that currently exists
for them. We embrace these people. And the mass majority of the
people of the Virgin Islands live in harmony. If many of the
provisions proposed in this document are adopted, I believe
that it will rip this delicate social and economic fabric apart
and create disharmony in our community unlike anything that you
have ever seen before.
In addition, I believe that with these provisions included,
the document will find it almost impossible to be ratified by
the current citizens of the territory. This possibility is most
disturbing to me. And I am convinced that this is an important
step toward self-determination. It is important to note that
this is our fifth attempt to ratify a document. And as time
elapses, it will become increasingly difficult to reach
consensus as the population changes.
It is with great trepidation that I request the Congress of
the United States to make the necessary changes to the proposed
constitution so that some of the constitutional concerns may be
alleviated, avoid social and economic distress, and allow the
document to be more acceptable to the vast majority of the
citizens to ensure ratification upon its return to the people
of the Virgin Islands.
Some say that if Congress may change as much as one word in
this proposed document, that it is no longer a document of the
people. I beg to differ, as upon ratification by the people of
the Virgin Islands, it then becomes their document, or our
document, to change and modify as prescribed therein.
Therefore, without any further ado, I request that Congress
make those changes as outlined in my proposal or my testimony,
which I see that I am out of time. And I want to thank you very
much. And some of the questions that you asked, I would like to
address some of those questions that were asked of the other
panel before. Thank you.
[The prepared statement of Dr. Petersen follows:]
Statement of Eugene A. Petersen, DVM, Member/Delegate, Fifth Virgin
Islands Constitution Convention, Frederiksted, St. Croix, Virgin
Islands
Ladies and Gentlemen of the Committee on Natural Resources,
subcommittee on Insular Affairs, Oceans and Wildlife. I thank you for
this opportunity to testify on my own behalf as a citizen of the Virgin
Islands of the United States. While I am a member/delegate of the Fifth
Virgin Islands Constitution Convention, I am not here today as
representing that body. I felt it necessary to testify as one of the
five delegates who voted in opposition to the adoption of the Proposed
Virgin Island Constitution in it's present form that is before you
today.
I was born on St. Croix, United States Virgin Island, one of the
islands that comprised the former Danish West Indies. My ancestral ties
to the island of St. Croix can be traced back to the period of the
emancipation of the slaves in 1848, and possibly beyond that. I have
resided on St. Croix my entire life except for a period of time where I
attended Tuskegee University in Alabama and worked for a brief period
of one year in the great state of Massachusetts after earning my
Doctorate degree in Veterinary Medicine. Upon returning to the Virgin
Islands I practiced as a mixed practice veterinarian for over 25 years.
I was elected as a delegate to the Fifth Virgin Islands Constitutional
Convention in 2008, which is in recess at this time awaiting the return
of the document from the United States Congress.
It is with great pleasure and humility that I accept this
opportunity to testify before this great body today. There are numerous
individuals that are probably better suited to be here testifying on
this matter concerning the magnificent territory of the Virgin Islands
of the United States. But faith and convictions has brought me here
today. Faith that the diverse population of the Virgin Islands can live
together as one, and the conviction that the people of my homeland
desire to do the ``right and just thing'' concerning home rule and
self-determination of the entire population of these Virgin Islands of
which I am so proud.
I want to make it abundantly clear that I strongly support the
adoption of a constitution created by the citizens of the territory,
for the people of the territory. It pains me to be here today asking
the United States Congress to modify or make changes to a document
created by elected officials representing the people of the Virgin
Islands. However, it is my opinion that there are portions of this
proposed constitution that, if adopted, will do irreparable harm to the
social and economic fabric of the territory. Many others today can
testify more accurately on the historical and constitutional relevance
of the document of which I am fully conscious. However, it is the
social and economic impact that are problematic and raises concerns for
many of the citizens with whom I confer.
As I mentioned before, the Virgin Islands are a diverse community
which is comprised of many citizens from various parts of the world.
Many of the current population migrated to the territory over a long
period of time establishing roots and contributing to the development
of the territory. Many were born in the territory of parents or
grandparents who migrated here, and many are first generation citizens
who lived and worked in the territory for many years creating a solid
social and economic base. These citizens consider themselves true
Virgin Islanders and know no other existence besides the life that
currently exist. We embrace each other and the vast majority live in
harmony.
If the many of provisions proposed in this document are adopted I
believe that it will rip this delicate social and economic fabric apart
and create disharmony in our community unlike anything that we have
seen before.
In addition, I believe that with these provisions included, the
document will find it almost impossible to be ratified by the citizens
of the territory. This possibility is most disturbing to me as I am
convinced that this is an important step toward self-determination. It
is important to note that this is our fifth attempt at ratifying a
document and as time elapses it will become increasingly difficult to
reach consensus as the population rapidly changes.
It is with great trepidation that I request the Congress of the
United States to make the necessary changes to the proposed
constitution so that some of the constitutional concerns may be
alleviated, avoid social and economic distress, and allow the document
to be more acceptable to the vast majority of citizens to insure
ratification upon it's return to the people of the Virgins Islands.
Some say that if congress as much as change one word in the proposed
document that it no longer is ``a document of the people''. I beg to
differ as upon ratification it will become the people's document to
change and modify as prescribed within.
Therefore, without any further due I request that the Congress of
the United States make that following changes to the Proposed Fifth
Virgin Islands Constitution as follows:
1. Delete--Article II, Principles of Government. Section 5--Supreme
Law of the Virgin Islands. ``This Constitution shall be the
supreme law of the Virgin Islands''.
The removal of this clause will eliminate any ambiguity that may
arises concerning the sovereignty of the United States Constitution
over the Virgin Islands of the United States.
2. Delete--Article VI, Executive Branch. Section 3, subsection (d).
``be an Ancestral Virgin Islander or Native Virgin Islander''.
The removal of this clause will not only alleviate constitutional
concerns, but avoid social distress on the part of citizens who will
not qualify as a Native Ancestral Virgin Islanders''
3. Delete--Article XI, Taxation, Finance and Commerce. Section 5,
subsection (g). ``No Real Property tax shall be assessed on the
primary residence or undeveloped land of an Ancestral Native
Virgin Islander''.
This provision will destroy the property tax base of the territory
and have grave negative economic impact.
4. Delete--Article XVII, Political Status Advisory Commission. section
1, subsection (b) ``who are Ancestral Native and/or Native
Virgin Islander''
This section makes special provisions for Native and Ancestral
Natives which will prevent tax paying citizens from participating in
the election process and prevent them from being appointed to this
commission.
5. Delete--Article XVII, Political Status Advisory Commission. section
2, subsection (b). ``The special election on status shall be
reserved for vote by Ancestral Native and Native Virgin
Islanders only, whether residing within or outside the
territory.''
This provision allows Native and Native Ancestral Virgin Islander
regardless of there current relationship to the community to vote on
the status issue while preventing tax paying citizens from voting.
6. Delete--Article XVIII, Constitutional Amendments, section 7--
Ratification of Amendments. ``Ancestral and Native Virgin
Islanders, including those who reside outside of the Virgin
Islands or in the military, shall have the opportunity to vote
on Constitutional amendments''.
This clause will render voting rights to Native and Ancestral
Native Virgin Islander who have no recent ties to the territory, and
who are not domiciled in the territory.
Once again I would like to thank you for allowing me to testify
today and I hope that my testimony is useful in your consideration of
the proposed Virgin Islands Constitution.
______
Ms. Bordallo. Very good. Thank you, Dr. Petersen, for a
very passionate testimony that you gave before the
Subcommittee. I now recognize Mr. Brady for five minutes.
STATEMENT OF DOUGLAS BRADY, DELEGATE,
FIFTH CONSTITUTIONAL CONVENTION
Mr. Brady. Thank you very much, Madame Chairwoman Bordallo,
Congresswoman Christensen. Good afternoon. Thank you very much
for this opportunity to testify. I like my good friend Dr.
Petersen was one of the five dissenting members of the
constitutional convention, and also one of the 11 signatories
to two letters that were sent dated January 29, 2010, to
President Obama and to Congresswoman Christensen, including
proposed modifications to the document. I would ask the Chair
if those letters and attachments could be added to the record
of the Subcommittee, together with my written statement.
Ms. Bordallo. No objection. So ordered.
[NOTE: The letters submitted for the record have been
retained in the Committee's official files.]
Mr. Brady. Thank you, Madame Chair. I am here speaking as
an individual. Congress has gone a long ways over the last 93
years to grant autonomy to the people of the Virgin Islands. As
of 1968, we elect our own Governor. We now have the right to
determine the number of our legislators and the apportionment
of our legislature. As of 1984, the Revised Organic Act
amendment gives virtually unlimited jurisdiction over local
matters to our local courts.
But these have all been imposed upon us by acts of
Congress. This is our opportunity to create our own structure
of local government. And this is such a great opportunity, as
the speakers before me have mentioned, and as the Subcommittee
is well aware. The document before you represents the fruits of
the labors of the Fifth Constitutional Convention, and those
were diligent and difficult labors. Congress has 60 days to
act. The realities of acting within 60 days are well
understood. A very short time, notwithstanding everything else
that you all have on your plate these days.
But frankly, the failure to act has been discussed well,
and the document will be deemed approved. But candidly, that
would appear to me, as Delegate Christensen mentioned earlier,
as inconsistent with the article 4 oversight responsibilities
of the Congress. And frankly, it would be politically the death
knell of this document, which would be dead on arrival in this
format back to the Virgin Islands.
It would also signify either that the Congress doesn't care
enough about the Virgin Islands to send back a document that is
unquestionably inconsistent with the provisions of the Equal
Protection Clause of the U.S. Constitution applicable to the
Virgin Islands.
Saying all that, the congressional is and must be limited
only to make sure that U.S. sovereignty is recognized and only
to make sure that the document presented is recognized as
consistent with the U.S. Constitution, treaties, and laws. The
document, as has been said by many speakers, is consistent and
does recognize U.S. sovereignty from the first paragraph of the
preamble acknowledging our status as an incorporated territory.
It is clear that we recognize that U.S. sovereignty governs the
Virgin Islands throughout the document, several references. And
the very thorough analysis of the Department of Justice
confirms that, regarding U.S. sovereignty, there is substantial
compliance.
The big, big, big problem with the document is the fact
that legal advantages are conferred on certain classes of
people. Those same legal advantages are denied to other classes
of people. The history of the Virgin Islands and Virgin
Islanders is a proud one, and the pride in the heritage of
ancestors is to be commended. And there are means by which this
can be accomplished. However, granting special privileges to
certain classes of people, and within--and as the Department of
Justice analysis recognizes clearly, differentiating between
somebody who moved to the Virgin Islands in 1931 and somebody
who moved to the Virgin Islands in 1933 cannot support any
legitimate governmental concern.
As my red light is now on, I am going to close up here. But
I would like to ask Congress to do what is clearly a difficult
task, and that is to strike those specific five provisions of
the document as it is before you that grant those special
rights.
Just very, very briefly, the other matter concerning
territorial waters, there is a quick fix. And I think as other
testifiers have said, it was the intention of the Convention to
recognize that provision on territorial waters can only be
considered in a manner consistent with U.S. laws. And I would
recommend the inclusion of the document. It is not a perfect
document. I voted against many of the provisions. But it is our
document. And therefore, I would suggest that Congress must act
to give us back a document upon which we can vote, and must not
go farther than that.
The people of the Virgin Islands deserve to have an
appropriate document returned to them. And I thank you for your
consideration.
[The prepared statement of Mr. Brady follows:]
Statement of Douglas A. Brady, Delegate, Fifth Constitutional
Convention of the United States Virgin Islands
With appreciation to the Subcommittee for considering these
remarks, I write concerning this matter of the utmost importance to the
people of the Virgin Islands. I ask that the Subcommittee also consider
letters of January 29, 2010 from eleven delegates of the Fifth
Constitutional Convention to President Obama and to Congresswoman
Christensen, each enclosing a copy of the proposed constitution marked
up to reflect recommended modifications to eliminate those provisions,
and only those provisions, deemed to be infirm as inconsistent with the
Federal Constitution. Copies of those letters and of the marked up
proposed constitution were submitted by my letter to Chairwoman
Bordallo dated March 8, 2010.
Background
Congress enacted the 1976 enabling legislation permitting the
people of the Virgin Islands to adopt a constitution for local self-
government ``recognizing the basic democratic principle of government
by the consent of the governed.'' (Act of Oct. 21, 1976, Pub. L. 94-
584, 90 Stat. 2899.)
Over the past half century, exercising its Article IV, Section 3
power respecting the Territories of the United States, Congress has
enhanced the political autonomy and self-governance of the Virgin
Islands, enacting laws to establish the popular election of our
governor, to permit local law to determine the number and apportionment
of legislators and granting virtually unlimited jurisdiction over local
matters to the courts of the Virgin Islands.
These important steps in achieving political self-determination for
Virgin Islanders have been granted by federal legislation. But by
Public Law 94-584, Congress has authorized the people of the Virgin
Islands to organize our own government pursuant to a constitution to be
adopted by Virgin Islanders. With this prospect of self-governance as
our goal, this process upon which we have embarked is among the most
significant in the ninety-three year history of the American Virgin
Islands. It is a process that must succeed in order that we may realize
a government of the Virgin Islands crafted and adopted by the consent
of the governed.
In 2004, pursuant to Public Law 94-584, the Twenty-Fifth
Legislature of the Virgin Islands enacted Act No. 6688 establishing the
Fifth Constitutional Convention of the Virgin Islands ``as a
significant step toward greater self-determination and autonomy in the
Territory's relationship with the United States Government.''
The delegates to the Fifth Constitutional Convention elected by
Virgin Islands voters, despite limited resources, diligently labored to
prepare and adopt a proposed constitution for submission by the
Governor of the Virgin Islands to the President and Congress in
compliance with Public Law 94-584. Notwithstanding those diligent
efforts, it is recognized that the proposed constitution before the
Subcommittee is flawed and, in parts, out of harmony with provisions of
the Constitution and laws of the United States.
As recommended by the February 23, 2010 analysis of the U.S.
Department of Justice Office of Legislative Affairs (``DOJ Analysis'')
submitted with President Obama's February 26, 2010 transmittal to
Congress, those constitutionally infirm sections of the proposed
constitution, and only those sections, should be modified by Congress
before the proposed constitution is returned for submission to the
qualified voters of the Virgin Islands.
Analysis
The need for limited Congressional action. President Obama and the
DOJ Analysis note nine features of the proposed constitution that
``warrant comment.'' The last of those features concerns ``the effect
of congressional action or inaction on the proposed constitution.'' In
the event that Congress fails to approve, modify or amend the proposed
constitution by joint resolution within sixty days of President Obama's
transmittal, it shall ``be deemed to have been approved.''
With deference to Congress, the failure to take timely action would
be inconsistent with its Article IV oversight powers and
responsibilities. By the 1976 enabling legislation, Congress granted
the Territory the power to call a constitutional convention to draft a
constitution which shall ``recognize, and be consistent with'' the
supremacy of the Constitution, treaties and laws of the United States.
To the extent that the proposed constitution is not so consistent,
Congress would be remiss to permit the document to ``be deemed to have
been approved.''
On the other hand, the enabling legislation, recognizing ``the
basic democratic principle'' of self-governance, authorizes the people
of the Virgin Islands to organize their own government through a
constitutional convention comprised of members chosen pursuant to
Virgin Islands law. In accordance with Public Law 94-584, the Virgin
Islands Legislature established the Fifth Constitutional Convention,
with delegates elected by the voters of the Territory. These
representatives of the people of the Virgin Islands have drafted the
document before the Subcommittee that is to be returned to the people
of the Virgin Islands for acceptance or rejection.
This exercise in government by the consent of the governed, while
subject to Congressional oversight must remain an exercise of, by and
for the people of the Virgin Islands. The role of this Congressional
review process must not be to substitute the judgment of federal
legislators for that of the people of the Virgin Islands. To the extent
that the proposed constitution recognizes and is consistent with the
sovereignty and supremacy of the United States, its Constitution,
treaties and laws, it must be approved by Congress and returned to the
people of the Virgin Islands.
DOJ Analysis bottom line. Notwithstanding its recitation and review
of nine areas of concern that warrant comment, the DOJ Analysis
recommends definitively that only two features cause sufficient concern
to warrant removal or amendment. Those features: (1) provisions
conferring legal advantages on certain groups based on national origin
and ancestry; and (2) provisions addressing territorial waters and
marine resources, are addressed in order.
(1) Legal advantages conferred on certain groups. The following
provisions confer different legal treatment of Ancestral Native Virgin
Islanders and Native Virgin Islanders, defined in the proposed
constitution in Article III, Sections 1 and 2, from other persons
within the Virgin Islands:
Article VI, Section 3(d): Governor and Lt. Governor must
be ``an Ancestral or Native Virgin Islander;''
Article XI, Section 5(g): Primary residences and
undeveloped land of Ancestral Native Virgin Islanders are exempt from
assessment of real property tax;
Article XVII, Section 1(b): Political Status Advisory
Commission is to be created with members ``who are Ancestral Native
and/or Native Virgin Islanders;''
Article XVII, Section 2(b): Special election on status
and federal relations ``shall be reserved for vote by Ancestral Native
and Native Virgin Islanders only, whether residing within or outside
the territory;''
Article XVIII, Section 7: ``Ancestral and Native Virgin
Islanders, including those who reside outside of the Virgin Islands''
have the non-exclusive right to vote in elections to ratify proposed
constitutional amendments.
The thorough treatment of these provisions within the DOJ Analysis
(Sec. II.C., pages 6-10) notes the absence of any expressed or
discernable legitimate governmental purpose for treating particular
groups of citizens of the United States and the Virgin Islands
differently from other groups of citizens concerning any of these
subject areas. As such, the provisions are in violation of the equal
protection clause of the Fourteenth Amendment of the U.S. Constitution,
applicable to the Virgin Islands pursuant to the Section 3 of the
Revised Organic Act of 1954 (48 U.S.C. Sec. 1561).
I ask that Congress modify the proposed constitution by eliminating
Article VI, Section 3(d) and Article XI, Section 5(g) in their
entirety; by eliminating the phrase ``who are Ancestral Native and/or
Native Virgin Islanders'' from the first sentence of Article XVII,
Section 1(b); by eliminating Article XVII, Section 2(b) in its
entirety; and by eliminating in its entirety the second sentence of
Article XVIII, Section 7.
I do not ask Congress to eliminate the definitions of Ancestral
Native Virgin Islander and Native Virgin Islander. Persons who trace
their Virgin Islands ancestries back multiple generations are
justifiably proud of their heritage. The proposed language defining
these persons simply recognizes that heritage.
I do believe the inclusion of the definitions language to be
politically imprudent, and that Virgin Islands ancestry could more
appropriately be recognized by local legislation or other means rather
than by constitutional definition. I fear that individuals and other
groups will see the inclusion of such language not as recognition of
heritage but as the designation of privileged classes, with the looming
prospect that different categories of persons will enjoy or suffer
different advantages or disadvantages.
As such, I am concerned that the inclusion of definitions, even
without special privileges, threatens the success of the constitution
in the referendum before the electorate. Nonetheless, in keeping with
the view that the limited role of Congressional review extends only to
insuring compliance with the Federal Constitution, treaties and laws, I
ask that the language defining Ancestral Native Virgin Islanders and
Native Virgin Islanders be approved.
(2) Territorial waters and marine resources. Article XII, Section 2
of the proposed constitution asserts sovereignty of the Virgin Islands
over its ``inter-island waters to...extend 12 nautical miles from each
island coast up to the international boundaries.'' The DOJ Analysis
notes that while the meaning and effect of this provision are not
clear, concerns exist that claims of Virgin Islands sovereignty are
inconsistent with federal law to the extent intended to derogate from
the sovereignty of the United States.
This legitimate concern set out in the DOJ Analysis can be readily
resolved in a manner that, although it doesn't clarify the intent,
meaning and effect of the provision, does allay fears of any attempted
usurpation of federal sovereignty.
I recommend that at the end of the last sentence of Article XII,
Section 2, a phrase be added, such that the last sentence reads: ``This
is an alienable right of the people of the Virgin Islands of the U.S.
and shall be safeguarded, in a manner consistent with the laws of the
United States.'' (Added phrase in italics.)
Other DOJ concerns. Apart from those two features of the proposed
constitution noted above, the DOJ Analysis does not recommend that any
other provision of the document must be eliminated or modified to
assure compliance with the Constitution, treaties and laws of the
United States. Several other features of the proposed constitution
which warranted comment in the DOJ Analysis are addressed here.
(1) Recognition of U.S. sovereignty and the supremacy of U.S. laws.
The Department of Justice indicates that it would be preferable that
Congress modify the proposed constitution in order that its language
explicitly recognizes the sovereignty of the United States and the
supremacy of its Constitution and laws. Yet, its bottom line is that
the language of the proposed constitution substantially complies with
the requirements of Public Law 94-584 by its implicit recognition of
federal sovereignty and the supremacy of federal law (Sec. II.A., pages
3-6).
As the DOJ Analysis notes, the very first paragraph of the proposed
constitution in its preamble states that the people of the Virgin
Islands are establishing a constitution assuming the responsibilities
of self-government in the context of our status ``as an unincorporated
territory of the United States.''
The DOJ Analysis notes that federal case law has clearly defined
the relationship between the United States and its unincorporated
territories in a manner that recognizes federal sovereignty and the
plenary authority of Congress over territorial affairs. Accordingly, by
its reference to the Virgin Islands' status as an unincorporated
territory, the proposed constitution has unmistakably, although
implicitly, recognized U.S. sovereignty and the supremacy of federal
law.
The DOJ Analysis further notes that other provisions of the
proposed constitution also recognize the authority of Congress over the
Virgin Islands. The third paragraph of the preamble recognizes that the
1917 treaty between the United States and Denmark confirmed that the
civil rights and political status of the inhabitants of the Virgin
Islands were to be determined by Congress. Additionally, Article IV,
Section 4; Article V, Section 1; Article VII, Section 2; and Article
VII, Section 3 all recognize the applicability of and the requirement
of consistency with the Federal Constitution and laws in the context of
holding public office, limitations on legislative power, and the
supremacy of federal law with reference to judicial decisions and
rulemaking.
It is in this context that the language of Article II, Section 5 of
the proposed constitution recognizing that ``This Constitution shall be
the supreme law of the Virgin Islands'' must be read. As the DOJ
Analysis concludes, the recognition of federal sovereignty and the
supremacy of federal laws in the various provisions of the proposed
constitution confirm its substantial compliance with the enabling
legislation. No changes to the proposed constitution are required in
this regard.
(2) Residency requirements for office holders. The proposed
constitution requires that persons seeking the offices of Governor and
Lieutenant Governor must have been domiciliaries of the Virgin Islands
for fifteen years, at least ten of which must immediately precede the
date of filing for office.
The DOJ Analysis well describes the potential equal protection
concerns inherent in such a lengthy residency requirement for office
holders. Indeed, in light of the cited case law, a shorter period of
required residency may be preferable. Yet, the cited decisions clearly
confirm that the U.S. Supreme Court has held that some durational
residency requirement is constitutionally permissible. Also, the
Department of Justice notes that ``the territorial status and unique
history and geography of the USVI make familiarity with local issues
particularly important for office-holders there, [such that] the
governmental interests supporting durational residence requirements for
USVI offices may be particularly strong.'' (Sec. II.D., page 13.)
In this setting, the representatives of the people of the Virgin
Islands have determined proper requirements for persons seeking to hold
office. Whether that determination violates the equal protection rights
of office seekers who have resided in the Virgin Islands for shorter
periods is a judgment to be made by the courts of the Virgin Islands
and the United States, if and when such a challenge is presented.
Alternatively, the people of the Virgin Islands themselves can shorten
the period by amendment to the approved constitution.
The role of Congress as to this provision should not be to
presently substitute its view for that of the representatives of the
Virgin Islands people in the context where no clear equal protection
violation is evident. No modification to the proposed constitution
should be imposed as to this provision.
(3) Violation of ``one person, one vote'' in legislative
districting. In analyzing the propriety of the proposed constitution's
requirement that the island of St. John have its own legislator,
competing interests must be weighed. Strict adherence to the ``one
person, one vote'' principle would effectively deprive residents of St.
John from any direct and meaningful legislative representation. On the
other hand, assuring such legislative representation will modestly
dilute the effectiveness of the representation of residents of the
other islands. The delegates to the Constitutional Convention have
resolved this dilemma in favor of assuring representation for the
people of St. John.
The cited case law within the DOJ Analysis establishes that equal
protection concerns in such settings can only be resolved upon a review
of the specific existing factual circumstances. As is true of the
preceding provision addressed, the role of Congress in this context
must not be to substitute its judgment for that of the representatives
of the people of the Virgin Islands.
The Department of Justice does not recommend specific changes to
this provision of the proposed constitution, notwithstanding noting the
potential litigation risk inherent in such legislative apportionment.
The potential for litigation exists in numerous provisions of the
proposed constitution, and litigation concerning those provisions will
keep the Virgin Islands Supreme Court busy for years to come. Yet, such
litigation is part of the process of establishing autonomy and self-
governance for the people of the Virgin Islands.
As recommended by the Department of Justice, the provisions
relating to legislative apportionment should not be the subject of
Congressional modification.
Conclusion
Consistent with its Constitutional oversight responsibilities,
Congress must act to insure that the proposed constitution of the
Virgin Islands recognizes and is consistent with the sovereignty and
supremacy of the Constitution and laws of the United States. This can
be accomplished by the elimination of several specific provisions that
violate the equal protection clause of the Fourteenth Amendment
applicable to the Virgin Islands.
Specifically, the proposed constitution should be modified by the
striking the language referenced above from those sections that confer
legal advantages on certain groups of persons based upon the place and
timing of birth and ancestry: Article VI, Section 3(d); Article XI,
Section 5(g); Article XVII, Section 1(b); Article XVII, Section 2; and
Article XVIII, Section 7.
Further, to insure compliance with federal laws, a qualifying
phrase should be added to proposed Article XII, Section 2, the last
sentence of which should be modified to read: ``This is an alienable
right of the people of the Virgin Islands of the U.S. and shall be
safeguarded, in a manner consistent with the laws of the United
States.'' (Added phrase in italics.)
With those modifications, the proposed constitution should be
approved and in accordance with Public Law 94-584 submitted to the
voters of the Virgin Islands for acceptance or rejection.
______
Ms. Bordallo. Thank you very much, Mr. Brady. I understand
you are an attorney practicing in the Virgin Islands. And I
want to thank all of the members of the second panel for being
very cognizant of the time. And now we will be open for
questions, and I am sure that you will have answers for most of
our questions.
The first one is for you, Mr. Bryan. What is your reaction
to the request for Congress to amend the proposed constitution
to remove those provisions recommended by the Department of
Justice to prevent it from being rejected by the voters.
Mr. Bryan. You said Mr. Bryan, right?
Ms. Bordallo. Yes.
Mr. Bryan. That is me over here.
Ms. Bordallo. Oh, that is right. I am sorry.
Mr. Bryan. Good. I don't believe that the U.S. Congress or
any one of us sitting in this room, whether Governor, delegate
to Congress, or delegate to the convention are the final
arbiter for the constitution for the people of the Virgin
Islands. No court should settle this definition. If you read
the sales treaty between the United States and Denmark, it said
any misunderstanding or misinterpretation of the document
should be finalized in the Hague and the Congress and the
President of the United States, and no person in this room is
that person for final arbiter. The only definition that you can
find that settles a constitutional question is the Supreme
Court. But our authority pursuant to the Danish and United
States sales treaty takes us far beyond any courts in the
Virgin Islands or the United States. We can go to the United
Nations pursuant to resolution 1514, 1541, and 15135.
I am saying that this is not the final arbiter. I don't
think Congress--because I am sure that all of us sitting in
this room, and even the President of the United States, know
full well that it was no Indian who was a Native American
present when the United States drafted the Constitution. I
cannot submit myself to an individual who has no history or no
knowledge of my ancestral past to tell me or my people who
should be eligible to run the country that I am from.
We are not in a position--as a veteran of the Vietnam era,
I am in the Virgin Islands. I can't even vote for the President
that can send me or my children to war again. We go home to the
Virgin Islands and don't get the benefits. I go to the Supreme
Court, and they tell us you are not a part, you are an
appurtenance, and, oh, the Constitution does not apply to me.
So arbitrarily, I heard a gentleman--that he was sitting right
here. He said the legal connotations for native or national
will not be recognized. Well, then why is it the U.S. Congress
and the United States of America recognize African-American,
Native American, Chinese-American--all these Americans and
women. Who do you think that woman mean? The Caucasian woman
because she is already in the majority in the United States. So
when we look at the whole confusion here, it is clear to me
that the whole attitude is about the population of people, not
so much about the Congress. Congress should not have the final
say in this document. That is my position.
Ms. Bordallo. Mr. Bryan, I sympathize with you. Guam is in
the same situation. And we are coming on like 30 years now,
still trying to decide on our constitution.
Mr. Bryan. We have 93 years.
Ms. Bordallo. Would you agree inasmuch as it has taken all
of these years and all of these different proposals have been
put forth--I think this is our fifth. Is that correct? Do you
agree that if this proposed constitution fails, it will become
almost impossible for the territory to adopt one in the future?
Mr. Bryan. I don't think so, and I can explain to you why.
From the beginning, on the onset, if the U.S. Congress had
followed the resolutions of 1514, 1541, and the others of 15,
they should have specified that only the people of the Virgin
Islands or native of the Virgin Islands shall be eligible to
vote, shall be eligible to be delegates, and shall be eligible
to decide what it is because it is clear that we are allowing
the situation that happened to Hawaii and Alaska and Guam to
overpopulate our people to set the position that everybody who
has a constitution written from where they came from. Everybody
in the United States, whether they are from Kentucky, Wyoming,
New Jersey, had a constitution written by them for them, and
not by none of us a Virgin Island native.
So I am saying if you don't put that provision, only native
Virgin Islanders or ancestral Virgin Islanders shall be able to
be eligible and vote on the document--I can give you a better
example just some weeks ago. We are at war as U.S. citizens and
Americans in Afghanistan and Iraq. We have Iraqis living in the
United States. They are voting on the election where they don't
live. And they are voting to make decisions here. We here are
sending our soldiers from the Virgin Islands, Puerto Rico,
Guam, and any other state to fight against these people.
There is no provision that you say that a Sunni can't vote
or a Shiite can't vote. You say Iraqis. So the parties only
have lived there for the rest of--and they are making
decisions. Oh, wait. Are you saying that native Virgin
Islanders as represented by Minority Leader Richards should
have the same provisions to make them there.
Ms. Bordallo. All right. Dr. Petersen, I have a couple of
questions for you. Thank you, Mr. Bryan. First, are you
comforted by the fact that if the proposed constitution is
adopted by the voters without any change, the courts would
likely strike down the controversial provisions that you are
asking us to change?
Dr. Petersen. I cannot speak for the court, but I know it
probably will end up in court. Many of the citizens that I
speak to are poised as we speak to challenge many of the
provisions in the document. I would also like to point out that
there is an ironic situation here where we have a present
gubernatorial candidate that was not born in the Virgin
Islands. And should he win the election in November, and this
constitution is ratified in November election, he automatically
becomes ineligible to serve. And so there is quite a bit of
irony here, and I do believe that these provisions need to be
addressed.
Ms. Bordallo. My second question also to you, Dr. Petersen,
you say that you believe that if the controversial provisions
of the draft constitution are adopted, it would make it also
impossible for the document to be ratified. On the other hand,
you heard Governor deJongh urge us not to even edit the
document because to do so would run contrary and counter to
true local self-governance. What is your opinion of the
position that the Governor is taking?
Dr. Petersen. Well, as I said near the end of my statement
that I beg to differ because----
Ms. Bordallo. Yes, you did.
Dr. Petersen.--once the constitution--once the document is
returned to the people for the vote, they would have adopted
the constitution as their own. And so whatever provisions were
changed by Congress, which as Delegate Christensen pointed out,
that the Congress does have a duty and a responsibility to
uphold the United States Constitution and make whatever changes
are necessary so that the document complies with the United
States Constitution. So I believe that if it is returned to the
people, modified, and it possibly would be voted in--and the
changes that we are requesting are--there are many other things
that we see that are improper or impractical with the document,
but we believe those things can be changed once the
constitution is ratified.
There are provisions within the document that provides for
review within five years, and also there are areas for
amendment to the constitution.
Ms. Bordallo. I have always been of the philosophy, because
I have sat on our constitution commission in Guam for a number
of years, and I have always said, let's get the foot in the
door.
Dr. Petersen. Yeah.
Ms. Bordallo. And then once it is in, and we have a
constitution, we can always repeal or add on to it. And like
you said, in yours, every five years it would go before the
people again for--isn't that what yours says, every five years
for reauthorization?
Dr. Petersen. I think the first review is within five
years, and then thereafter after ten years. I would also like
to point out here that within the document itself--and I think
if the document is adopted, that changes and amendments process
does not include the Congress of the United States any longer.
So once Congress approved----
Ms. Bordallo. So it would be just before the people.
Dr. Petersen. Yeah. It goes to the people, and it is
amended as provided therein.
Ms. Bordallo. Very good. Thank you very much. And now I
would like to turn it over to the representative from the
Virgin Islands, Dr. Christensen.
Mrs. Christensen. Thank you, Madame Chair. And before I ask
my questions, I wanted to recognize the presence of Senator
Shawn-Michael Malone, a member of the 28th Legislature. And if
my memory serves me correctly, he took the measure first
introduced by Senator David Jones in a prior legislature and
introduced it in the last legislature that created the
constitutional convention. So I wanted to recognize his
presence.
I have some specific questions about the document itself.
And anyone can answer, probably not all. But maybe two people
can answer this question. Why after the first four documents
had a provision for something akin to a chief financial officer
was such an office not included in this document? After many
people continued to talk about the need for a chief financial
officer, and it has been clear since I introduced it twice in
the Turnbull Administration and once in the deJongh
Administration, got it out of the House, and have been
consistently blocked in the Senate because of the
nonconcurrence of Governors which will probably continue into
the future, why was it not included in this? Was it discussed
and rejected, or was it not discussed at all?
Dr. Hassell-Habtes. Delegate Christensen, this area was not
discussed in the Fifth Constitutional Convention, not for CFO.
What the convention recognized, what we thought was the concern
for fiscal accountability, was the need for an auditor general.
And the constitution provides for an inspector general who
would have that responsibility. So we did not discuss the
establishment of a CFO in this constitution.
Mrs. Christensen. No. And I don't think that the prior ones
had specifically necessarily a chief financial officer. The
fourth had an auditor general. But it was my understanding that
the duties were fairly similar and that they were concurrently
monitoring the spending and the finances of government, not
going back as an inspector general was. Now the current one
would be an inspector general that goes back and reviews
documents past.
Dr. Hassell-Habtes. That is what we presently placed in
this constitution, yes.
Mrs. Christensen. OK, thank you.
Mr. Bryan. If I might add, please.
Mrs. Christensen. Yes.
Mr. Bryan. I think your question is appropriate because if
the delegates to the U.S. Congress right now could not have
convinced the members of the committee or the Congress to put
it in the Federal laws through the Department of the Interior
to administer these things--and with the Governor who was
sitting earlier, I think he was supportive before. After he got
elected, I think he supported it. Just as he came here to
testify against the constitution convention document for native
Virgin Islanders, do you feel he wanted to protect him? He
should have asked that that be included. He had opportunity
long ago, and there is still the opportunity right here in the
Congress to put it in place.
Mrs. Christensen. Yes. We did pass it through the House on
three occasions, but we could not get it through the Senate
because it really requires--or it was required of us that the
Governor in both instances, both in the Turnbull Administration
and this Administration, concur, and they didn't get that
concurrence, and so the Senate would not pass it. So it has
been going up against a wall three times.
There has also long been a movement or a lot of discussion
about municipal government, which many I think anticipated that
the next constitution would provide for. And I realize you have
some different governing structures on the island, but not true
municipal government. Was that discussed and debated and
rejected, or was it not a discussion at this convention?
Mr. Emanuel. Thank you very much, Delegate de Lugo [sic.].
Mrs. Christensen. De Lugo?
[Laughter.]
Mr. Emanuel. I think I have been reading too much history.
Delegate Christensen.
Mrs. Christensen. Well, you know, the past Congress, people
were on the Hill just yesterday and had an even last evening,
so OK.
Mr. Emanuel. No. The Fifth Constitutional Convention did
debate municipal government to a large extent, and there are
provisions within the document that address that specifically.
Mrs. Christensen. I see that there is some structure on
each island, but not what I would really consider municipal
government. But there is some attempt to have each island have
a structure.
Mr. Emanuel. What we did is we didn't want to legislate
within the constitution. We felt that the constitution is
supposed to provide broad parameters. We have a legislature.
You can create commissions and so forth. So we put the
principle in there in some detail, but we felt it was best to
have each island determine for itself what form of municipal
government it would like, and the legislature would eventually
have to approve that.
Mrs. Christensen. I see. Which leads me into my next
question. Did you want to respond as well?
Mr. Bryan. Yes. I wanted to put on record because we keep
hearing individuals in different terms use the word municipal
government, sub-district, and municipalities. And when I read
what they wrote and brought to the convention for discussion
and debate, those were sentiments clearly of apartheid. That is
what they want to do. Look at the population and see what they
wanted to have. Municipal government, sub-district, and the
authority to change the laws when it comes to taxation--so
basically, we almost end up another South Africa.
Mrs. Christensen. Thank you for that response. But the
issue of providing broad parameters bring me to my next
question. And I would direct this to Dr. Hassell-Habtes. In the
report by the Congressional Research Service, it is discussed
that while it is not inconsistent with Federal law in any
manner, mandating a 20-student class limit may prove to be
inflexible to changing economic and demographic patterns over
time. And while I understand the need to counter classroom
overcrowding and really support small classrooms and reduction
of the demand on our already-overextended educators, don't you
think that this provision requiring a 20-student cap could
possibly become restrictive over time, and aren't these
provisions overly prescriptive for a constitution?
Dr. Hassell-Habtes. Thank you, Delegate Christensen. The
concern--I mean, the education and culture committee had many,
many meetings, many testifiers, including the University of the
Virgin Islands, the president, Dr. Ragster, the Board of
Education chair. We see the need for smaller classrooms. The
research bears us out on this. There are no ifs, ands, or buts.
The problem in the Virgin Islands is we continue to overcrowd
our classrooms, and then we want to have the teachers and the
administrators of our schools at the same adequate yearly
progress standards. They have to do exactly the same thing as
other classes through the nations, throughout the nation, and
that is a problem right there.
Right now, we are suffering in our territory. The crime--
you may say it is crime, but I beg to differ. It starts with
education. It starts with education in our classrooms, giving
our students what is necessary and ensuring that they have a
foundation within which they can get jobs and not be out on the
streets killing each other. I understand yesterday there was
another murder in St. Croix. This is what is happening, and it
is a certain generation of males that are dying as a result of
it. They are between certain ages.
We are actually suffering right now in the territory from
January to now. The numbers have been increasingly one almost
every day. And as a result, it behooves us to change to make
sure that our future generations are well educated, have the
foundation skills with which they can survive.
Mrs. Christensen. I definitely agree with the intent of the
provision, and I share deeply your concern. Two people were
killed in St. Thomas the day before, and one in St. Croix
yesterday as you said, and it continues. And education is a key
part of resolving that issue. It is just I had a question about
whether it was something that should have properly been in a
constitution. But it is there, and if we were to consider
changing anything in it, with taking what has been said to us
here under advisement, that would not be one of the things we
would ever consider changing.
Dr. Hassell-Habtes. Thank you.
Mr. Bryan. Could I comment on education?
Mrs. Christensen. You have a comment on education?
Mr. Bryan. Yes, ma'am. Thank you. I think Chairperson
Bordallo would probably tell us that in the curriculum of
education in Guam, the Guamanian children from the early age
understand who they are, what they have contributed to the
society, and the sense of pride in their native land. In the
Virgin Islands, though, there is a law that is over 20 years
old that require the Governors, the present one who was here
and the others before him, and the Department of Education to
teach the children of the Virgin Islands and the Caribbean the
history of their ancestors and the greatness of their
contribution so that they can understand who they are.
These activities are taking place because of the
miseducation of the population of the children of the Virgin
Islands that is continuing because it is only a particular
grade or class of people that are being killed in a firearms
situation. The minute a Caucasian is killed, all the law
enforcement, all the marshals, all the DEA and the ATF, they
are around searching and stopping cars. As soon as a young
black individual or Hispanic is killed, they drive as if
nothing is unusual. You can have individuals showing more
concern about the turtle, a snake, a lizard, and a dog and a
cat, than they are concerned about the people of the Virgin
Islands when it comes to education. So it is a Eurocentric
educational curriculum that needs to be enforced so the
children of the Virgin Islands that are involved in these
things, like the children of Guam and other islands, can
understand their greatness as opposing to not understanding who
they really are supposed to be contributing to.
Ms. Bordallo. I agree with your comments.
Mrs. Christensen. Yes. And, I was taught at least the
history of the Virgin Islands, maybe not the Caribbean, when I
was even in Catholic school. And I think it is very important.
You know, if you don't know where you came from, you will never
figure out where you are going.
Dr. Hassell-Habtes. Madame Chair, could I comment just one
more thing on that? Because the problem that we have with
education and teaching the history and culture of the Virgin
Islands is that many of our teachers are coming to us from
other jurisdictions, other places, and do not know the culture
and history. I know my fellow delegate, Gerard Emanuel, and
myself just on Saturday afternoon provided training through the
board of education on cultural education and the mandate to
infuse culture within the curriculum to the teachers because
the teachers also do not have the time to research this history
and to get it into the classrooms.
So what we do as trainers of these teachers in culture and
history is provide them with the necessary materials. But that
is why education is so important.
Mrs. Christensen. It is.
Ms. Bordallo. Yes. If I could inject just a minute. Yes, in
Guam our education system--you know, right after the war, we
got kind of--well, it was, speak English, speak English. Of
course, we have a language in Guam. So now it is mandatory that
we teach the Chamorro history and our language. So that is one
good thing, and we do have teachers that are trained in the
culture. And they are placed in all of the schools. So that is
a good thing, although I think that there should be a bit more
of it, but certainly we are starting on it. And now we are
trying to revive it because our youth, you know, we speak
English in Guam. And our parents, there is a generation now--we
are about three or four generations from the days right after
the war. And children now, they can speak a little of the
language, but certainly not fluently.
Mrs. Christensen. Thank you. At least yours is being
enforced. So that is really helpful. Madame Chair, if I could
just ask two brief questions. By again, any one of the
delegates, or maybe all might be able to answer because I think
the answers could be very brief.
How would the delegates feel about reconvening the Fifth
Constitutional Convention to address the three highlighted
areas in Mr. Cedarbaum's testimony?
Mr. Bryan. You said reconvene?
Mrs. Christensen. And I welcome--how would you feel?
Mr. Bryan. You said reconvene?
Mrs. Christensen. To reconvene. The same question I had
asked to the previous panel pretty much. How would you feel
about reconvening to address the three areas or reconsider the
three areas of concern that were highlighted by the assistant
attorney general's testimony?
Mr. Bryan. I don't agree that we need to reconvene to
address what the Justice Department said. As I said previously,
the final arbiters of this decision is not only a
constitutional issue that goes to other higher, whether the
U.N. or the Hague. But I say if you are going to reconvene it,
you must have other stipulations that only people of the Virgin
Islands be delegates, and substitutes those that are the Virgin
Islands with people of the Virgin Islands and only require that
the people of the Virgin Islands because the difference between
people of the United States and people in the United States.
The Iraqis are in the United States, but they are of Iraq. So
we want to make sure that we have the same privilege and rights
to represent our future of the Virgin Islands.
Mrs. Christensen. Any other comment about reconvening?
Mr. Brady. I will respond, Delegate Christensen. I wouldn't
be optimistic that it would be successful. But I do think, as
perhaps even as can be seen from the fact that 11 delegates
signed a letter to yourself and President Obama----
Mrs. Christensen. And could you explain how five voted
against and eleven signed the letter?
Mr. Brady. Well, there are only 25 who voted in favor, 25
who voted total. The count was 20 to 5, 20 in favor, 5 against.
Some of the persons who--I can't speak for others, of course,
but some of the people who signed that letter of the 11 did
vote in favor. Some had--one had abstained, and several had
been absent. But I think that there has been a--the vote was
taken in a very rushed fashion as the clock was ticking. We
were at the 11th hour, and we had to say yea or nay.
Mrs. Christensen. Don't you know moving the clock back?
Mr. Brady. That is a good idea. We didn't think we had that
authority. We didn't have the control-the-clock hands. But in
any event, I think people have rethought. I have concern that
if we are going to be able to get a two-thirds majority,
perhaps a two-thirds majority would not vote in favor of these
particular provisions today. So in that sense, I don't know
how----
Mrs. Christensen. It may never happen, but I was just
wondering if there were any thoughts about whether it would
make any sense to reconvene to consider those.
Dr. Hassell-Habtes. Delegate Christensen, I just wanted to
say I got a copy of the letter to President Obama, and he is
saying 11 signatories on there, but I am seeing only seven. I
am seeing only seven signatories on that document. So although
they may have added other people's names there, the signatories
are not on that letter.
Dr. Petersen. The response to that is----
Dr. Hassell-Habtes. I am concerned, if we are going back to
reconvene the convention, only because the delegates were
united when we voted accordingly for this constitution. And to
reconvene is going to take us back to the beginning of the
convention, 2006, to start all over again to pull them together
because the biggest problem in the beginning was getting
everybody together. And we also were not accorded, as testimony
from our president of the convention stated, we were not
accorded the financial, you know, remuneration to do so. So it
really would take us back.
Mrs. Christensen. Let me just ask the last question, and
then you could----
Mr. Bryan. Before you go to the last question----
Mrs. Christensen. I am going to ask it, and you can answer
both----
Mr. Bryan. No. I want to explain the situation with the
signatures because the signature document that originally was
sent did not have all ten signatures in there. One of the
delegates that didn't sign was Governor Charles Turnbull. He
was the only delegate of the 11 that didn't. They sent seven
signatures first, and then thereafter they submitted another
page with 10 signatures, with individuals who were not even
present, and even some who hardly attended the convention
meetings. So it is to me when we do that, you are trying to say
that if the Supreme Court renders a decision, before the courts
follow or enforces a Supreme Court decision, it cannot change
the Supreme Court decision until there is a Supreme Court
majority again. What we are trying to make or suggest is that
you allow the minority dissenters have an opportunity again to
change what the 20 delegates did in the majority.
Mrs. Christensen. I guess what I was trying to suggest is
we could probably avoid a long, drawn-out court battle if the
convention reconvened just simply, and those three areas, and
at least reconsider them. Let me ask the last question.
Dr. Hassell-Habtes. That is a possibility, Delegate
Christensen. There is a possibility with that. I must say, you
know, many of the delegates had discussed some component of
that, knowing there would be major problems within some issues.
So there is a possibility, yes.
Mrs. Christensen. Let me ask the question. And I know that
Mr. Emanuel and others might want to answer that first one. But
I am just going to ask the last question, and you could answer
both if you want to. I can kind of try to wrap it.
This is our fifth try. I am one of those Virgin Islanders
that want us to have a constitution. I want a constitution that
will be able to garner the number of votes from the voters to
have it pass. So do you feel that this document sent back as it
has been sent to us, sent back without any changes, will pass?
Because many people do not feel that way. And are you willing
to take the risk of letting all of your hard work over these
months, over a year, come to naught? That is my last question.
Mr. Emanuel. Delegate Christensen, this time I got your
name correct. That is a very important question. The crux of
the matter is who are the people of the Virgin Islands. Who is
the self in the self-determination? Because the Enabling
legislation that was passed by the legislature said that this
is a major step in a process of self determination.
The problem I have and the problem that existed with the
two previous conventions, the third and the fourth, is that the
same requirements for voting in a regular election were applied
to voting in constitutional referendum. And I don't know what
this body feels, but I think that is an injustice. All of the
historical background that I have submitted to this body
clearly shows a singular thread that consists of a body of
people in the Virgin Islands who have historically been denied
their right to self-determination, their right to write a
constitution, for hundreds of years.
While that occurred, many people were allowed to migrate to
the Virgin Islands. And the vast majority, who never had a
chance to exercise this right, had absolutely no say in who
came into the Virgin Islands, who was accorded citizenship, and
now who is supposed to have the same right of those people who
were historically denied a right to choose for themselves. Now
everybody, the descendants of the colonizers as well as
everybody else is mixed up in this pot and is supposed to make
an act of self-determination?
That is what Congress has to address. In my testimony, I
said that--and this is in the written testimony--that we are
not trying to abrogate U.S. sovereignty, but we would like to
determine what the parameters of our status is. Justice can't
do that. The President doesn't do that. The only legally
authorized body within the United States to do that is the
Congress. We are a creature of Congress. And I don't want to
leave here without knowing what the sense of Congress is
because everybody keeps saying this is unconstitutional, this
is violating that law, this is violating this law. Congress
makes the law. There is no other body that makes the laws. We
need to hear from Congress. At least I would like to hear from
Congress because everybody has an opinion but the only one that
counts in terms of the territorial clause is the Congress of
the United States.
So the problem I have with going back or having any
constitutional convention is who is going to vote. I testified
before the United Nations in 1989, when you were boss as a
commissioner on the status commission. That process was
illegitimate because it allowed people to vote in that process
who were not part of the people of the Virgin Islands as
defined under international law. A resolution that was
mentioned by my co-delegate, Adelbert Bryan, 35-118, requires
the administering powers who have territories like the Virgin
Islands to protect these territories from the disruption of
their territorial integrity by the migration of outside
settlers.
The outside settlers doesn't just mean non-citizens. Anyone
coming into this island territory is an outside settler. And
when they come there, we have a very small electorate.
Historically, they have affected all of our rights to self-
determination. They thwarted the Third Constitutional
Convention. They thwarted what happened in the Fourth
Constitution. And if allowed, that will happen in the Fifth.
And that is the issue that we cannot run away from. It is not
that the people of the Virgin Islands can't make a decision or
our constitution will not be adopted. It is who legitimately
and historically has the right to make that decision?
I don't know of any person in Israel, any Jew, that would
allow any descendant of a Nazi, whether he believed in the
philosophy or not, to come and vote on the right of self-
determination of Jews. So why is it that the people of the
Virgin Islands are supposed to be so accommodating and be held
to a higher standard and let everybody else make a decision.
That is wrong, and that is what this Congress has to address.
This Congress has to address whether or not the people of the
Virgin Islands, who Congress defined as those natives who were
not citizens or subjects of any foreign country--those are the
people that Congress made citizens in 1927. That is the group
of people who has the inalienable right to exercise these
things, and that is the group of people that should be the only
ones voting on constitutions, dealing with political stuff.
Until Congress addresses that pursuant to the United States
obligation under the articles, under the charter of the United
Nations, and on the resolution 1541, where this government has
to respond annually to what it is doing to allow the people of
the Virgin Islands--and when they say ``of,'' the people of the
territories, they are not talking about visitors and transients
and anybody who happens to come there. They are talking about
the people who are involuntarily colonized.
Mrs. Christensen. I hear your position. And I need to give
the others a chance to just respond because we are running
close to the end of the time.
Dr. Petersen. Thank you, Delegate----
Mrs. Christensen. Dr. Petersen, I will give you the last
word. I am going to give you the last word.
Dr. Petersen. I would like to address your thought about
reconvening. And I don't believe that this--and I think you
meant the current convention reconvening, right?
Mrs. Christensen. Yes.
Dr. Petersen. Yeah. I don't think this body of 30 could
come to a conclusion different than it did because when you
think about it, we actually spent over a year in actual time
working on this. And we just keep going round and round. So I
think we have exhausted all avenues.
As far as one of the questions that was asked before about
the difficulty in reaching the two-thirds majority, it was
extremely difficult. I don't think anyone could deny that. You
could look at the transcript and see that throughout the last
few months of the convention, I noticed that every vote that
was taken was anywhere like 12 to 13 or 15 to 10. It never got
up to like a vast majority of the voted on any of the issues.
And that sort of signaled to me that when it came to the final
vote, that they were going to be pretty much split.
And in actuality, it was pretty much split. Of the 25
delegates that were there, 15 initially voted for it, and 5
voted against, and there were 10 absent on the floor. And our
rules required or allowed for telephone voting, and they
contacted several of the other delegates and were able to get
them to vote yes, 5 to vote yes to make the 20.
Basically, what happened, the five that voted against, and
then there were another five or absent or one or two
abstentions, some of those that voted for it immediately the
next day called and had quite buyer's remorse. They called me,
they called several people, and they said, oh my God, how did I
do this. Several of the other candidates that voted on the
evening of the vote voted for it, in their two or three minutes
that they had to talk about how they felt, expressed varying
views as to why they were going to vote for it. They were
against it, but they were voting for it because there had been,
in the case of Governor Turnbull--had been in all five
conventions, and this was possibly his last one, and he wanted
to see a document go through, not that he agreed with it, but
he wanted to see something, anything, come to the floor.
Several of the other delegates that expressed buyer's
remorse the next day said that they voted for it because they
were sort of pressured or told that they were not true Virgin
Islanders and just got elected because they were residents in
the Virgin Islands. And they said, well, to hell with it, I
will vote for it, just to give it to the people.
Mrs. Christensen. I am going to have to stop there because
the Chairwoman has been very, very patient.
Dr. Petersen. Yes.
Mrs. Christensen. Did you want to answer the question,
Attorney Brady, if the Chair will allow? If you don't, I will
go to Dr. Habtes.
Mr. Brady. I don't have an answer.
Dr. Hassell-Habtes. Thank you, Delegate Christensen. I am
very, very concerned because we have worked too hard to give
this Fifth Constitutional Convention up to just anybody. To
tell you the truth, I honestly believe, Delegate Christensen
and Madame Chair, I honestly believe that anything that we do
with the people of the Virgin Islands on this constitution
shouldn't just be sent back to them for a referendum. We have
to educate them. Even up to my coming here for testimony, there
were community members who called and said to me, that Organic
Act that you all say is governing us, I have never seen it. I
have never read it. And I would rather have the constitution
than an Organic Act from 1936, revised in 1954. But that just
tells me they never read it. They don't even know what is in
there to have voted for four constitutional conventions to, you
know, not have a constitution. And I really feel this is our
time.
If Congress feels that they need to send it back to the
people, then that is what Congress should do. I really feel,
however, that we should take some time with our people and
educate them on the component parts. Don't just send it back.
Anything that we do with our people--$500,000 was spent on an
education campaign before the constitution even began. We
didn't even get that amount toward the writing of the
constitution. And I feel it has been a hard, strong struggle,
and we cannot give it up. As our Chairperson of this committee
said for Guam, at least get our foot in the door. At least get
our foot in the door, and then we can do changes. Thank you.
Mr. Bryan. But Delegate Christensen, could I have a minute,
or less than a minute, please, to express something? Madame
Chair, sorry. Excuse me. You know, I am hearing this number
being playing around, whether it was 20 delegates out of 30.
And I think 20 is representing two-thirds as opposed to the
majority; 21 really. But in any event, in a five-four decision
for the Supreme Court, that is still a majority. A nine-three
decision for the Supreme Court is still a majority. What some
of the delegates, individuals, are not looking at--this
constitution--I don't know about Bryan or Mr. Brady or anybody
sitting up there--is about the future generations of the Virgin
Islanders. As an example, if Mr. Brady from Chile, as an
example, son married to my daughter, a native Virgin Islander
or an ancestral--or what grandchildren are qualified as native
Virgin Islanders or ancestral native. If Mr. Modeste and
Delegate Christensen from Antigua had some kids, moved to the
Virgin Islands, have children born in the Virgin Islands, those
children too are also native Virgin Islanders. And if they can
check farther, they may find that one of their parents or
grandparents was living in the Virgin Islands prior to 1927 and
1932.
So I am saying don't let us get caught up in the
individuals here. Look at what is the future because when the
United States wrote their Constitution, the Presidents before
were not native Americans. They put a provision in there for
future Presidents to be natural-born Americans. But he is still
known even today as the President of the United States. Thank
you.
Ms. Bordallo. I thank all of the members of the second
panel. I feel you have been giving us very valuable input on
this. We have been able to hear a little background, who sits
on the commission, how long you have worked on it and so forth.
And that is going to be very, very important when Congress
decides how we are going to go forward.
So I want to thank you all very, very much. I truly did
enjoy this, listening to it. And it just makes me think of back
home because we have some of the same problems. We spent $10
million over a period of 10 years trying to work on our
commonwealth status, and now we are going to have to start over
again because we dropped the ball for a few years, and it is
something that we have just got to come to grips with. And I
will repeat it again. That is what happened to Guam. We
wouldn't compromise on some of the provisions. And the Federal
Government--and we walked out, and it wasn't the right thing to
do.
I didn't walk out, but the Chairman did. So I just want to
thank you all very much. And I work very closely with Dr.
Christensen, and we will continue to do so.
I want to thank you again. And as members of the
Subcommittee may have some additional questions for you, we
would like to ask you to respond to these in writing. The
hearing record will be open for 10 additional days for any
other information that we may want.
So again, there being no further business----
Mrs. Christensen. Madame Chair, we would still accept
written testimony from residents of the Virgin Islands?
Ms. Bordallo. Yes, that is correct.
Mrs. Christensen. In that 10-day period?
Ms. Bordallo. The hearing record will be open for 10 days.
And if others that were not part of the panels today wish to
send testimony, absolutely. They will be included.
So there being no further business the Subcommittee, the
Chair again thanks the members of the Subcommittee and all of
our witnesses from both panel one and panel two. The
Subcommittee now stands adjourned.
[Whereupon, at 4:46 p.m., the Subcommittee was adjourned.]