Editor’s Note: The following is the text of Hartig’s winning speech at the Attorney General Cup speech competition, held May 4. This year, the competition focused on the insular cases doctrine, in which Congress can choose which portions of the U.S. Constitution applies to “unincorporated territories,” including the CNMI.
In 1984, John arrived in Dapong, Togo, where he would work for the U.S. Peace Corps to help supply the local people of the small African nation with oxen to help plow their fields. These animals were not found in Africa, but the Peace Corps believed that, with the use of these oxen, indigenous people would no longer have to turn the earth on their farms by hand. After delivering an ox to each village, John retraced his steps to check on the progress of the locals. He found that the indigenous people had eaten the oxen, and continued to plow the fields by hand.
Without understanding or considering the local culture, any new system is destined to fail. A government that is supposed to be of the people by the people and for the people must respect the ways of the people.
From the Constitutional Convention of 1787 until the passage of the most recent 27th amendment of 1992 and at all amendments in between, not a single Chamorro or Refaluwasch citizen of the Northern Mariana Islands cast a vote. So why should they now be subject to it?
The U.S. Constitution was written by former English colonists. It took into account hundreds of years of English culture, history and the suppression by the English monarchy. It was written with full knowledge and understanding of British traditions and values in an effort by former colonists to form their own country. To be free of the English monarchy, with its own common law and culture merely based on British tradition. To apply the U.S. Constitution to an unincorporated territory such as the CNMI would fail to acknowledge the history and culture of the Northern Mariana Islands and force an arguably foreign set of laws on the local people based on an English legal system. The indigenous people of the Northern Mariana Islands have no traditions, culture or history based in England. They have a unique history and culture. The legal system must take this history and resultant values into account in formulating laws and a local legal system. The insular cases give the people of these islands the flexibility to take local history and culture into account while guaranteeing basic rights of all Americans.
Jury trial for some legal disputes, like land claims, date back to 12th century England. In 1215 the Magna Carta guaranteed the right to a jury trial to all free Englishmen in criminal cases. There is no such 800-year history of jury trials in the Northern Marianas. There is no reason to force the system on people without such a longstanding history and culture of these legal practices. Even so, the right to a jury trial exists here. The Northern Mariana Islands Legislature has seen fit to grant jury trials in criminal cases with a punishment of five years or more.
The insular case doctrine allows the local government to have control over local legal issues in some areas, without the need to comply fully with U.S. Constitution requirements as long as the process is fundamentally fair. For example, Article 12 of the Covenant to Establish the CNMI in Political Union with the United States allows for land alienation in the Commonwealth. Land can be bought and sold only by those of Northern Marianas descent. This would seem at odds with the notion of free land alienation found in the 50 states. It may also seem like a colonial leftover put in place to protect locals from outside land speculators and can seem somewhat disrespectful of the local people’s ability to manage their own affairs. But it is actually the exact opposite. It’s a provision by the locals and for the locals who saw the need to protect and preserve their land. Because they see a need to secure their homeland. Without a homeland, much is lost. Culture and language can be lost. Where are the Pequote Indians of Connecticut who can speak the language? Where are the Pawnee of Illinois? Who practices their traditions today? Who preserves these cultures and practices?
Some people might be tempted to look to Cherokee reservations in Oklahoma as an example of an indigenous people who operate largely as an independent nation within the United States. But those people forget that the Cherokees are originally from North Carolina. They went to Oklahoma unwillingly, when they were forced to travel there on foot during the brutal winter of 1838. Thousands died of exposure and starvation in what became known as the Trail of Tears. Much of the culture was lost. Few people speak the language after these people were forced to give up their land and highly sophisticated governmental structure.
When there is no homeland there are no traditions. There is no culture. Where there is no culture, the people are no longer a cohesive society.
There is a huge difference between an incorporated and an unincorporated territory. The U.S. Constitution does not and should not apply in its entirety to unincorporated territories. And there is a very good reason for this. An incorporated territory is a territory that is destined to become a state, such as Alaska and Hawaii in the 1950s. An unincorporated territory has no such expectations of becoming a state. Given that the United States has no intentions of welcoming the people of an unincorporated territory in the United States on equal terms, it wouldn’t be fair to expect those people to comply completely with the U.S. Constitution. The federal government treats unincorporated territories and incorporated territories very differently. Therefore the expectations should be different as well. Because fundamental rights and basic fairness through due process do apply in unincorporated territories, there is no need or reasonable expectation that all aspects of the Constitution should be forced on the indigenous people.
For over a hundred years, the insular cases have created a standard under which certain constitutional requirements are applied to the people of U.S. territories, while others are not. Critics of the doctrine view it as the last remnant of colonialism, seeing it as an unequal representation of the territories based on race, or a tool of imperial constitutionalism. In reality, these cases are an opportunity to set a precedent and create a framework that will prioritize and protect indigenous traditions, values and culture from the imposition of federalism and foreign values.
The United States and therefore its citizens benefit from the inapplicability of certain constitutional provisions as long as fundamental rights are recognized and enforced.
For example, without the ability to restrict who can own and sell land in the Commonwealth, the indigenous people of the CNMI would have never agreed to the Covenant. Article 12 of the document is an integral and essential part of the Covenant and without it the people of the Commonwealth would never have ratified the agreement. By allowing such a provision, the United States is in a better position to form political alliances and acquire necessary military outposts while simultaneously respecting the culture and values of the indigenous people of the territory.
It has been argued that the equal protection clause of the U.S. Constitution requires that all people have equal access to land alienation. But Article 12 of the Covenant says otherwise. As the federal court explained in Wabol v. Villacrusis, to construe the Covenant is to be in violation of the United States Constitution, and to not allow the people of the CNMI their right to preserve and protect their culture and property would be in violation of their civil rights and would prevent the United States from forming binding international agreements. The bill of rights was not intended to interfere with the performance of America’s international obligations. Its purpose is to protect minority rights, not to create a homogeneous society. When land is a scarce and precious resource that is vulnerable to economic plunder, it must be understood that the indigenous vision may not completely match the predominant attitude about property, and that’s okay.
The insular cases wisely recognize that culture and tradition must be considered in establishing a working legal framework. So, if the United States is truly a government of the people by the people, for the people, that shall not perish from this earth as President Lincoln resolved in 1863, then it must be able to recognize the culture, traditions and wishes of the people who fly its flag. To this day, the people of the Northern Mariana Islands have the right to protect their culture as they see fit. And in case you were wondering, to this day, there are no plow oxen in Dapong, Togo.