Guam Status: A Case of Arrested Development

by Howard Hills*

An essay featured by the Guam Daily Post recently asked why Guam bemoans its lack of local self-determination, but never revived its dormant process for adopting a territorial constitution. It’s a question I have been asking for 30 years.

A territorial constitution was authorized by Congress in 1978, and drafted by a democratically conducted convention of the people in the 1980’s. However, it was defeated in a ratification referendum, due primarily to ideological opposition led by Robert Underwood, a brilliant young University of Guam professor.

Underwood argued the U.S. would exploit adoption of a local constitution as a pretext for removing Guam from the list of colonies maintained by the United Nations under Article 73(e) of the U.N. Charter. According to Underwood that would perpetuate less than fully democratic territorial status and limit democratic self-government on other future political status options.

He seemed to have a well taken point. That is what the U.S. did in 1953 after Puerto Rico approved a local “commonwealth” constitution in conformity with terms permitted by the U.S. Congress. As the intellectual oracle of the opposition to a territorial constitution, Underwood persuaded the left of center core of his followers that the U.S. would do to Guam exactly what had been done to create a political status limbo for Puerto Rico.

What the charismatic and eloquent Underwood failed to disclose to his followers in Guam was that the U.S. diplomatic sleight-of-hand on the legal nature of Puerto Rico’s “commonwealth” constitution in 1953 was at the behest of Puerto Rico’s anti-statehood autonomist party. With U.S. encouragement and facilitation, elected officials of the territorial government from the autonomist party in Puerto Rico actively lobbied the U.N. to win recognition of “commonwealth” as non-colonial.

Rather than a U.S. conspiracy as Underwood alleged, that 1953 hoax was perpetrated through collusion of the U.S. State Department and the anti-statehood autonomists of Puerto Rico. Ending U.N. oversight served the political purposes of the U.S. and the anti-statehood autonomists, by removing the stigma of the last large U.S. territory’s classification as a colonial possession.

Even in 1953 when U.S. influence in the U.N. was far greater than it is today, the vote on Puerto Rico was close, with almost as many abstentions as affirmative votes, revealing how divisive the matter became. Indeed, the U.N. adopted provisional principles for decolonization of non-self-governing territories worldwide earlier on the same day in 1953 that it voted to declare Puerto Rico decolonized based on their adoption of a local constitution.

Yet, Puerto Rico’s adoption of a local constitution while remaining in a less than fully self-governing territorial status did not satisfy the criteria for decolonization adopted by the U.N. only hours earlier. That required considerable diplomatic ambiguity, horse trading and outright arm twisting by the U.S. delegation and its Puerto Rica proteges to end U.N. oversight of U.S. rule in Puerto Rico.

In large part to prevent repeat of that awkward 1953 debacle, in 1960 and again in 1970 the U.N. adopted resolutions, now with U.S. support, defining the political status options for territories, including full independence, a transitional relationship of “free association” based on the right of independence, or full integration. This committed the U.S. to a worldwide standard for decolonization of dependent territories, including Guam.

Those 1960 and 1970 resolutions confirming criteria for U.N. recognition of decolonization did not apply retroactively, so Puerto Rico was not placed back on the list of non-self-govening territories even though “commonwealth” clearly did not decolonize the territory. The U.S. made it clear it would not have voted in favor of the 1960 and 1970 resolutions on decolonization if it meant Puerto Rico’s status once again would have been subject to U.N. oversight.

In reality, there was no risk for Guam that the U.S. could repeat the Puerto Rico scenario in the United Nations. By the 1980’s when Congress had to prod Guam belatedly to seek greater self-government under a local constitution than it has under an anachronistic 1950 territorial organic act, the U.S. could not have removed Guam from the U.N. list without support of Guam.

The U.S. would have lost trying to duplicate the Puerto Rico hoax, without full and equal rights of self-government constituting full integration into the U.S. or separate sovereign nationhood. That is true with or without Guam’s support, which is why the U.S. would not even attempt to claim decolonization based on a territorial “commonwealth” constitution, conferring a revocable delegation of autonomy granted by Congress in the exercise of its power over domestic territories.

Another historical truism Underwood omitted from his narrative opposing Guam’s draft constitution is worth mention. Puerto Rico’s support for its removal from the U.N. list of colonies was no different than a similar tactic by anti-statehood autonomists to remove Puerto Rico from Department of the Interior fiscal oversight. In both the U.N. and the federal government in Washington, the autonomists in Puerto Rico wanted to create the perception, if not reality, that the local constitution had decolonized Puerto Rico and made it a “sovereign nation state.” See, PR51ST.com “Puerto Rico Autonomists Duped JFK,” July 11, 2018.

Underwood oversimplified the Puerto Rico narrative to create voter apprehension that a local constitution would enable the U.S. to deny a choice between partial integration, full integration and separate sovereign nationhood for Guam. In dumbing down the debate, the professor also correctly calculated that defeating the draft constitution would be the opening act in his own political ascension.

The ambitious Underwood parlayed his role in repudiation of the territorial constitution into his own election as Guam’s non-voting Delegate to Congress. He spent his entire tenure in Washington pursuing but never really advancing a “commonwealth” political status agreement that was rejected by the federal government not only for Guam, but for Puerto Rico.

Clearly, if Guam had approved a local constitution in the 1980’s it could have leveraged that milestone in evolution of self-government to attain greater autonomy and more enhanced federal relations than the Commonwealth of the Northern Mariana Islands (CNMI). That is how the CNMI achieved its “Commonwealth Covenant” in 1976 — a more advanced federal relations model than Puerto Rico.

If it had adopted a local constitution and shown Congress it was ready to move forward, Guam could have attained a state of the art “commonwealth” regime to replace the anachronistic 1950 Guam Organic Act regime. Indeed, based on an outline for a “commonwealth” deal that included adoption of a local constitution, a new more democratized and decentralized commonwealth structure of civil government was close to being achieved by Guam in 1994.

Guam’s Governor Joe Ada was making progress during the first term of the Clinton administration, working with Department of the Interior territorial relations negotiator Michael Heyman (Dean, Boalt Hall Law School, UC Berkley). Ada and Heyman were close to an agreement that would have paved the way for a commonwealth regime of federal relations not only better than Puerto Rico or CNMI, but also making it safe for Guam to adopt a local constitution without loss of future status options.

Ironically, in 1994 the former chairman of the convention that approved Guam’s draft constitution, Carl Gutierrez, was elected Governor. But instead of continuity in the transition from the Ada administration on federal relations matters, Gutierrez terminated productive negotiations with Heyman. The new Governor then was reported in the local and national press to have coerced donations from government workers and businesses in order to bundle a reported $900,000 in campaign contributions for Clinton’s reelection in 1996.

Guam got nothing in return except rejection of Guam’s over-blown “commonwealth” proposal, supported by Underwood even though it would not secure a decolonized future status. An earlier Clinton administration Department of Justice legal memo in 1994 discredited a hybrid of CNMI and Puerto Rico autonomy models, which had morphed into unrealistic pseudo-free association under the influence of Gutierrez and Underwood.

That prevented Heyman from working with Guam to enhance federal relations, and work around the legalisms of the 1994 DOJ memo that defined the limits within which the parties could have worked for better outcomes. If not terminated, Heyman’s initiatives for Guam might have been beneficial to autonomists in Puerto Rico and CNMI.

Instead, Heyman threw up his hands-on Guam commonwealth, all because Gutierrez wanted to take credit for promoting the same old politically unrealistic “commonwealth” proposal that Underwood had promoted in opposing the constitution Gutierrez had advocated as chairman of the convention that produced it. As a result, that 1994 DOJ memo rejecting core features of Guam’s autonomy proposal became a milestone in the deconstruction of the autonomist party myth in Puerto Rico and CNMI as well.

It’s worth noting as well that the CNMI has a constitution, but that territory was never on the U.N. list because it was a U.N. Trust Territory, and it was not added to the list when it became a U.S. territory. Thus, since 1978 when authorized by Congress, the next step in any efficacious decolonization movement for Guam has been and remains adoption of a local constitution.

At least that is the case if Guam wishes to retain statutory U.S. citizenship and remain under American sovereign rule. If that is not the case Guam could seek decolonization through free association, national sovereignty and U.N. membership, like Palau, Micronesia and the Marshall Islands.

Accordingly, it is historically clear Underwood instigated a delay of more than three decades in Guam’s evolution from the 1950 Organic Act to a more developed framework of federal-territorial relations. That misdirection and miscalculation in prioritization of federal territorial relations is also true of another ill-conceived territorial political agenda currently being promoted by the so-called “Equally American” lobbying group.

This non-profit’s aggressive fundraising and media tactics promote the false promise pretending territories can be given by federal statute the same constitutional citizenship and federal voting rights as states of the union. Territorial status with statutory citizenship does not and should not create a status or rights equal to states, but rather enables the people of a territory to seek statehood, integration into a state, or separate national sovereignty.

Like earlier unrealistic “commonwealth” proposals that would usurp federal powers, asserting equivalency between territorial status and statehood simply causes Congress to take territorial law and policy reform less seriously. These self-delegitimizing schemes are repeatedly rejected by federal courts, and that serves to convince Congress that there is no real problem or solution needed for the lack of full democracy in our last territories.

Howard Hills is former counsel on territorial status affairs in the Executive Office of the President, National Security Council and U.S. State Department, and author of “Citizens Without A State”

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