Rice vs Cayetano and Art. XII

The State of Hawaii has a law that established the Office of an Affairs. The law created a group of Trustees who are elected to manage the trust money for the benefit of native Hawaiians. Under this law, only native Hawaiians are eligible to vote in the election of the Trustees.

The US Supreme Court has issued its decision in the case of Rice vs. Cayetano, declaring that the Hawaii law, that restricts such voting, violates Amendment 15 of the US Constitution and is therefore invalid. Mr. Rice wanted to vote in the election of the native Hawaiian Trustees, but was not allowed because he is not a native Hawaiian. Amendment 15 prohibits the States from denying any US citizen the right to vote on account of race. The Supreme Court found that Rice was denied the right to vote on account of his race.

Some people in the CNMI wonder how this decision would affect the recent amendment to the CNMI Constitution, which restricts voting on Article XII to persons of Northern Marianas Descent. In fact, a February 25 editorial in one local newspaper concludes that this Supreme Court decision nullifies the recent amendment on Article XII.

This editorial conclusion is not accurate. The amendment restricting the voting on Article XII is valid and will remain valid unless the court says otherwise. The Supreme Court analysis of the Rice case raises factual, legal and political issues which are very different and distinct from Article XII issues. Thus, the Rice case probably would not govern in any Article XII case that may be brought to challenge the recent amendment.

First, the Supreme Court notes that the Rice case involves the election of State Officials who occupy offices in a State Agency. However, in an Article XII case, there would not be any election of Commonwealth officials who would function in a Commonwealth agency. Instead it would involve only the political question of whether to maintain the validity of Article XII.

Second, the Supreme Court notes that the native Hawaiians are not entitled to self-government. Therefore, the political status is not like those of the American Indian Tribes. However, in the case of the CNMI, the people have the right of self-government under the Covenant. The preamble to the Covenant states in part that “the
United States have entered into this Covenant in order to establish a self-governing commonwealth for the Northern Mariana Islands.” Section 103 of the Covenant provides that “the people of the Northern Mariana Islands will have the right of local self-government and will govern themselves… in accordance with the Constitution of their own adoption.”

There are other distinct differences between the State of Hawaii and the CNMI which could differentiate the analysis of an Article XII case.

First, because Hawaii is a state, the US Constitution applies to it fully which is not the case in the CNMI. Here are cases in point, Hawaii cannot restrict ownership of land, but the CNMI can. Hawaii cannot have a Senate with representation based on islands, but the CNMI can. Hawaii cannot deny its citizens the right to a jury trial but the CNMI can. Hawaii cannot deny US citizenship to persons born in Hawaii under any circumstances but the CNMI can, if the US agrees to repeal or amend Section 303 of the Covenant. In other words, there are things that Hawaii cannot do under the US Constitution, which the CNMI can. This is so for three reasons:

1. the US Constitution did not apply in the CNMI before the Covenant came into effect,

2. The US Constitution applies in the CNMI only through the Covenant, and

3. Hawaii has 100% representation in the US House of Representatives and the Senate and participates in the election of the President, while the CNMI has zero representation in Congress and does not vote for the President.

Second, the CNMI Constitution provides that all public lands and private lands in the entire CNMI belong to the people of Northern Marianas descent. The US Government does not own any land in the CNMI. Nor do the native Hawaiians own all the lands in the State of Hawaii.

Third, the decision whether to maintain the validity of Article XII is left exclusively to the CNMI and the US has no say so in the matter. This raises the issue of whether this decision involves strictly a political question on the part of the CNMI and thus the courts should refuse jurisdiction.

I raise the above points only to show that it is too early to start making conclusions about these complex and complicated legal, constitutional and political issues.

Ramon G. Villagomez