How the CNMI managed to negotiate SSI into the Covenant
By Aurora Kohn and Mar-Vic Cagurangan
The U.S. Supreme Court ruling in the U.S. vs. Madero case has thrown into relief the profound impact of Guam’s political status versus that of its sister territory and closest neighbor, the Commonwealth of the Northern Mariana Islands (CNMI).
Unlike in Guam, U.S. citizens residing in the CNMI are entitled to the Supplemental Security Income or SSI. In fact, the CNMI is the only U.S. territory, where residents are qualified to receive such benefits.
The SSI program gives monthly payments to adults and children with disabilities or those who are blind and whose financial resources are below certain income limits. It also gives assistance to citizens who are 65 years old and older who have financial challenges.
The exclusion of American citizens living in U.S. territories from the SSI program was the core issue tackled by the Supreme Court in the Madero case. While the case involved a resident of Puerto Rico, the decision also extends to Guam, American Samoa and the U.S. Virgin Islands.
The court, in an 8-1 decision penned by Justice Brett Kavanaugh, pointed out that the law which created the program makes SSI benefits available only to residents of the 50 states, the District of Columbia and the Northern Marianas.
“The Marianas negotiators were smart to include eligibility for SSI in Article V of our Covenant. So we do not have the same problem that residents of Puerto Rico and Guam do. Over 1,000 people in the Marianas are receiving SSI. And the program brings in over $8 million to our economy each year,” said Congressman Gregorio “Kilili” Sablan, the CNMI’s nonvoting delegate to the U.S. Congress.
“It is very clear that today’s Supreme Court continues to believe the territorial clause of the U.S. Constitution gives Congress a free hand to do what it wants in U.S. ‘territories,’ even if that means treating U.S. citizens in the states and the non-state areas differently,” Sablan added.
The legal basis for the CNMI’s inclusion in the SSI program is found in Public Law 94-241, which approved the Covenant negotiated by the Marianas Political Status Commission and Ambassador F. Haydn Williams on behalf of the president of the United States.
“Unlike Guam or Puerto Rico, the Northern Marianas directly negotiated their political status with the U.S.— during the Cold War era, I should add,” said Zaldy Dandan, a political analyst and longtime editor of Marianas Variety. “The NMI’s political status commission also had the good fortune of hiring Howard P. Willens as legal counsel.”
Dandan cited a 2001 book, titled “An Honorable Accord: The Covenant between the Northern Mariana Islands and the United States” by Willens and his colleague and wife, Deanne C. Siemer, which provides the history of the CNMI’s political status.
The authors wrote: “The Marianas' lawyers wanted to ensure that certain [federal] laws that brought financial benefits to the Marianas would apply and, conversely, to provide that certain [federal] laws with adverse effects would not apply.”
Willens and Siemer said the Marianas' lawyers decided to include a separate section in the Covenant specifying the existing federal laws that would apply in the Northern Marianas and another section identifying laws that could not be applied. “The United States agreed that the Marianas' portion of the trusteeship’s social security fund could be pulled out and held separately until the end of trusteeship [which happened in 1986], when it would be merged with the main U.S. fund,” they wrote.
The following laws of the United States in existence on the effective date of this Section and subsequent amendments to such laws will apply to the Northern Mariana Islands, except as otherwise provided in this Covenant: (1) those laws which provide federal services and financial assistance programs and the federal banking laws as they apply to Guam; Section 228 of Title II and Title XVI of the Social Security Act as it applies to the several states; the Public Health Service Act as it applies to the Virgin Islands; and the Micronesian Claims Act as it applies to the Trust Territory of the Pacific Islands.
So how did the Northern Marianas negotiators manage to sway their U.S. counterparts?
Dandan recalled Willens’ November 1993 interview with CNMI author, educator and historian Samuel F. McPhetres. “What do you think fostered the final decision of the United States to acquiesce in this request?” Willens asked. To which McPhetres replied, “Because we wanted Tinian so bad we could taste it.”
“It was all about U.S. national defense. Then and now, the people of the CNMI are glad and proud that their islands are vital to the defense of their nation, the United States,” Dandan said.
At the end of World War II, the Northern Marianas became part of the Trust Territory of the Pacific Islands. The collective territory included Palau, the Marshall Islands, Pohnpei, Kosrae, Chuuk and Yap. They were administered by the United States based on the UN Security Council resolution dated July 18, 1947. They were under the U.S. Navy’s control until the Department of the Interior took over in 1951.
The U.S. opposed giving the territories eventual independence well into the late 1960s. Instead, it proposed that the territories pursue some form of association with Hawaii.
In 1964, President Lyndon B. Johnson ordered the organization of the Congress of Micronesia to coordinate the activities of the Trust Territories of the Pacific Islands. Between 1969 and 1971, negotiations took place in Washington regarding the political status of the TTPI.
The Northern Marianas delegation declined to participate until 1970 when the commonwealth status and U.S. citizenship were offered to the trust territories. In 1971, the U.S. agreed to hold a dialog with the Marianas Islands, independent of the other trust territories.
According to the Commonwealth Law Revision Commission, the covenant was negotiated “over a course of 27 months, from December 1972 to February 1975, by the Marianas Political Status Commission.”
The proposed covenant between the CNMI was signed on Feb. 15, 1975 on Saipan. It was then approved by the Marianas District Legislature of the United Nations Trust Territory of the Pacific Islands.
The Northern Marina Islands voters approved the negotiated Covenant – with 78 percent voting yes— in a plebiscite held on June 17, 1975.
The result of the plebiscite was certified by the president, which paved the way for its approval by the U.S. House of Representatives on July 21, 1975 and the U.S. Senate on Feb. 4, 1976. Then President Gerald Ford signed the joint resolution on March 24, 1976. It became Public Law 94-241.
The trusteeship of the Northern Mariana Islands was terminated on Nov. 3, 1986. A UN Security Council resolution formally terminated the trusteeships of the group of islands on Dec. 22, 1990.
To this day, the U.S. territories’ demand for equal treatment remains a matter of endless negotiations — even for the CNMI.
“Whether you agree with that legal reasoning, it means the Marianas and the other insular areas need to have effective and determined representation in Congress, so we are included in federal programs,” Sablan said. “The earned income tax credit that working families in the Marianas are receiving now is the most recent example of how representation in Congress can make a real difference in peoples’ lives.”