When it comes time for the courts to make a decision on whether Guam’s self-determination law is racial discrimination, it is likely they will rationalize their decision based on those cases, which DISCRIMINATELY laid the foundation for all kinds of inclusion and exclusion exceptions for unincorporated territories or UT. In fact, many scholars in legal discourse have argued some of those decisions were racial or discriminatory.
Perhaps the most compelling is the 1901 Downes v. Bidwell case. Although it is more than 100 years old, it is quite often used by the courts and legal scholars to debate matters affecting UTs and continues to hold legal precedence. One significant item that stood out to me was the court recognized there would be issues based on “race, habits, laws and customs of the people,” with regard to the indigenous people of unincorporated territories.
They asserted it is Congress that must address those political issues. In addition, the courts made it clear that UTs are temporary; Congress has plenary powers over them and can dispose of them, and the Constitution does not fully apply to UTs.
Therefore, UTs and states clearly do not have a shared sense of purpose. Issues, such as self-determination or sovereignty that the Constitution and Organic Act do not address, become a political matter of Congress for action. A power of Congress where they can unilaterally accept, reject or invalidate UT laws. These are all features that are not common or shared by states and their union heritage.
Also, in the CNMI, the 9th Circuit ruled in Wabol v. Villacrusis that the racial discrimination claim in Wabol failed because “[i]n the territorial context, the definition of a basic and integral freedom must narrow to incorporate the shared beliefs of diverse cultures….”
Furthermore, “The Bill of Rights was not intended to interfere with the performance of our international obligations. Nor was it intended to operate as a genocide pact for diverse native cultures…. Its bold purpose was to protect minority rights, not to enforce homogeneity.” While this may have been a land issue, the courts continue to recognize the cultural differences and behaviors between its UTs and those of the people from the contiguous U.S.
Therefore, all of these indicators seem to suggest that Guam may very well have a special case and exception because of its unique “race, habits, laws and customs of the people,” as opposed to those in the contiguous U.S. I look forward to what the courts may have to say on this outcome. We can anticipate either party to take it all the way to the U.S. Supreme Court.
BERNARD PUNZALAN
Spanaway, Washington
