Being fully unincorporated in the deep seabed of political purgatory
The U.S. territories are in the spotlight most of the time because their concerns are often ignored. Whatever disagreements they may have with U.S. federal policy can be disregarded because they are disconnected from the exercise of power over themselves and others. This is true for Guam, the Northern Marianas and American Samoa.
Of course, this was most recently manifested in the federal decision—via the Marine Management Administration—to proceed with seabed leases in what are wistfully presumed
to be the exclusive economic zones of the three island entities. Those belong to the federal government and not the territories.
Despite near-universal opposition from elected officials and the public across the three entities, the Trump administration proceeded with its plans. When it comes to EEZ, the territories have no territorial waters.
In the case of the CNMI and Guam, the area under consideration for lease openings was doubled. This made it clear that, being disconnected from power, the unincorporated territories can be disregarded more easily than anyone. The territories have no capacity to shape the laws that govern them (no consent of the governed) and their opposition is ultimately meaningless whenever the federal government seeks to exercise its authority.
Hence, the territories are in the spotlight not because they are fighting the good fight, but because they have nothing to fight with. They are disconnected from the exercise of power because they are in a state of “unincorporatedness.”
CNMI and American Samoa officials may argue that they do not swim in exactly the same unincorporated waters as does Guam.
I guess Puerto Rico and the U.S. Virgin Islands are also fully unincorporated as defined by the Insular Cases. The USVI were purchased and the Insular Cases themselves were primarily about Puerto Rico. Consequently, in the world of five unincorporated territories, two believe that they are perhaps not the same as the other three.
The CNMI has a “covenant,” and American Samoa has an agreement with the United States, which is alternately described as a “deed” or “treaty” of cession. In their view, this marks them as different from Guam, Puerto Rico and the U.S. Virgin Islands. More importantly, the executive and legislative branches of the federal government fully understand and leverage their status as disconnected and unincorporated.
If the CNMI and American Samoa are not fully in this state, are they more incorporated or less incorporated into the federal system? If they are not fully unincorporated territories, do they exist in a separate part of the political purgatory that territories find themselves in? Ultimately, does that mean that they are still in the same purgatory having simply arrived there at a different time and under different circumstances?
Do the terms “covenant” and “treaty of cession” carry sufficient legal weight to distinguish them from Guam? If so, is that difference just slightly nuanced, or is it specific to certain areas or activities?
In the case of the CNMI, provisions regarding land ownership by Northern Mariana Islands-descended citizens and the holding of 902 talks are offered as examples of difference. But aren’t they just distinctions without a real difference? In the case of deep seabed mining, it appears that the CNMI is just as unincorporated as is Guam.
Many ancillary questions arise from this, as the two-plus-one group (covenant, cession, and Treaty of Paris) of unincorporated territories struggles with federal policy. Are the CNMI and American Samoa more powerful precisely because they are not fully unincorporated? Does this mean they are more or less foreign in a domestic sense, given that the phrase comes to us from the Insular Cases?
Or does this distinction function as a kind of “explanatory fiction” to assuage individual senses of disempowerment and disregard, which are the overwhelming conditions of the political purgatory in which all the territories currently find themselves?
Like the spiritual purgatory of the Middle Ages, this purgatory is supposed to have an end date. You could get out through indulgences or just the passage of time. The real question is not whether we are qualitatively different, but what our perception of the paradise we are to enter upon release is. Is paradise becoming fully integrated into the United States and therefore no longer fully unincorporated? Or is paradise the full exercise of sovereignty and status as an entity that can make decisions about deep seabed mining on our own island terms?
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I think most of the political leadership across all three Pacific territories prefers to remain in purgatory, complaining about the heat and uncertainty while drawing attention to the varying degrees of “unincorporatedness.”
In the middle of this purgatory, there will be gnashing of teeth and cries for relief and even a little court activity. There will be press releases and self-satisfied advocacy statements. All of this must give meaning to their lives and terms of office. Hopefully, they will realize that it is time for sovereignty. Perhaps the citizens are already arriving at that point before the elected leadership. I pray for the release of these souls.
Dr. Robert Underwood is the former president of the University of Guam and a former member of the U.S. House of Representatives. Send feedback to anacletus2010@gmail.com.
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