On March 31st, 2017 the U.S. Virgin Islands will observe the 100th anniversary under U.S. jurisdiction as an unincorporated territory after some 251 years as a colony of the Kingdom of Denmark. This followed on from earlier colonial maneuvers by various European powers dating from the encounter with the indigenous peoples by the first European ‘conquistadores’ to enter the Caribbean some 4000 years ago. The British, Dutch, French, Spanish and the Knights of Malta preceded the Danish and U.S. in competing for strategic control of the three Caribbean islands comprising the present day U.S. Virgin Islands.
By the end of WWII, many of the territories acquired by the developed countries still remained as colonial possessions. Part of the reason for the creation of the United Nations in 1945 was to address the disposition of these territories. Since then, over 80 territories have achieved a full measure of self-government, either through integration with another country with full political rights, free association with another country or political independence.
Puerto Rico as the other U.S. dependency in the Caribbean has begun to advocate for a permanent political status in the U.S. Congress and the U.N. This recent focus in 2015-16 follows on from federal Justice Department clarifications and recent federal court decisions confirming the territorial nature of the ‘commonwealth’ political status under the U.S. Territorial Clause. This counters the widely held assumption that the commonwealth had become an autonomous polity with the adoption of the Puerto Rico Constitution in 1952. The commonwealth of the Northern Marianas is facing a similar reality in the wake of federalization of a number of powers previously interpreted as internal to the territory. Following an unsuccessful legal challenge, the territory has responded with a 2016 law to revisit their political status options.
It is rather disappointing that the strict interpretationists of the U.S. Constitution generally dismiss as “out of hand” any agreement for the U.S. territories to achieve anything approaching the level of creative autonomy enjoyed in the Danish or Dutch autonomous governance models. This realization was the important outcome of the U.S. consideration – and rejection – of the Guam commonwealth status proposal of the early to mid-1990s.
Political and Constitutional Evolution
Unlike the systematic emergence of many of these creative autonomous governance arrangements, political and constitutional development in the USVI following the transfer to the U.S. in 1917 has been gradual and incremental. The Treaty of Cession placed the future civil rights and political status of the people with the U.S. Congress. The territory was immediately placed under military governance until 1931 when control shifted from a naval to a civilian governor appointed and sent by Washington. U.S. citizenship was not extended to the people for the first 10 years (1927).
In 1936, the first Organic Act was approved by the U.S. Congress leading to universal suffrage and the beginnings of the formation of the original architecture for U.S. dependency governance in the territory. By 1946 the U.S. would formally inscribe the USVI on the United Nations (U.N.) list of non-self-governing territories.
By 1954, the Virgin Islands Organic Act was revised with subsequent modifications to the governance of the territory, proceeding in an ad hoc manner through continued generally subjective application of U.S. constitutional provisions and laws. As the Revised Organic Act of 1954 was not intended to modify the existent unilateral federal authority, the overall governance of the territory remained virtually unchanged under the U.S.-appointed governor until 1970 when the U.S. law providing for an elected governor went into effect for the USVI, as well as for Guam.
The U.S. Virgin Islands has made five attempts to draft a locally written constitution, dating back to 1964, to replace the 1954 Revised Organic Act. Several of the proposals contained provisions designed to acquire more territorial control by addressing the political power imbalance between the territory and the federal government, but some of these provisions were frowned upon by Washington.
Elements of these drafts deemed more reasonable and not affecting the power imbalance were selectively removed and inserted into other federal legislation for subsequent adoption. Other proposed USVI constitutions were rejected outright by the people in referendum, in part, because constitutions within the framework of territorial status did not allow for the effective autonomy and fundamental upgrading of the political status which was being sought.
The territory subsequently decided in a non-binding 1982 referendum to address the broader picture of selecting a political status before writing a constitution. Between 1980 and 1993 two political status commissions and one select committee of the territory’s fifteen member legislature were created. Emerging from this activity was the first and only referendum on political status options held in 1993. However, issues of voter eligibility and an excessive number of options contributed to an insufficient percentage of the electorate participating in the vote (27.4 per cent), with the results being declared null and void. Thus, the USVI reverted to the status quo by default.
Formal discussions on political status development went dormant until the adoption of a 2006 territorial law to create a Fifth Constitutional Convention which convened in 2008 to draft a constitution to replace the prevailing Revised Organic Act of 1954. A proposed constitution was adopted by the Convention in 2009 but some provisions of the text were contested in a U.S. Justice Department legal opinion on grounds that the powers sought exceeded what would be considered allowable under territorial status - even as the Convention’s own legal opinion supported the provisions on the basis that a territory is not an integrated U.S. state.
Political Status Evolution or Dependency Reform ?
Amidst the various political developments in the Caribbean and Pacific dependencies, the view that the political status of the USVI should be addressed before drafting a constitution continues to be debated. Since the present dependency status was never meant to be permanent, as it is not sufficiently autonomous, a permanent status should be the intended goal even if it is not considered immediately achievable. What is clear is that a constitution based on the present unincorporated territorial status will not address the situation of unilateral federal power by a Congress in which the territory has no vote, and by a president for whom the people of the territory cannot vote.
In this connection, becoming an additional U.S. state would correct the inequalities inherent in the unincorporated territorial status, and would be consistent with international principles of democratic governance through the recognized status option of political integration. It may be more likely, however, that such a move to integration would result in becoming part of an existing state, rather than a standalone state, in consideration of the small population of the USVI, as well as similar ethnic considerations which stalled U.S. Congressional consideration of statehood for Puerto Rico in the 1990s. The Puerto Rico economic crisis revealed in 2016 has provided an additional and convenient impediment to statehood.
Other alternatives such as independence and free association are all viable alternatives for consideration. A Self Governance Assessment of the existing political status would be useful in identifying democratic deficits and impediments, and to answer the question of “what is wrong with the status quo?”
In the meanwhile, one thing is certain. There is little consistency in the parameters setting the level of autonomy permitted in an unincorporated territory. An autonomous power obtained in the 1980s by the Northern Marianas to control immigration and enact their own labor laws through exemptions from federal law might not be necessarily permitted if requested by other territories in 2016. The rejection of some of the autonomous provisions contained in the 2009 USVI proposed constitution is testament to a lack of clarity on what is considered doable within the framework of the territorial status, and what is not.
Autonomous provisions related to land ownership and native rights in the Northern Mariana Islands Commonwealth Covenant with the U.S. might prove unattainable in other territories today – even as an important issue continues to be the loss of land by the native population in the U.S. Virgin Islands amid rising land values fueled by external investment and land speculation.
There is also the sensitive issue of selfdefinition. The inclusion of language in the 2009 proposed USVI Constitution recognizing the native Virgin Islander as a descendent of those specifically mentioned in the 1917 Treaty of Cession (consistent with the identical provision in the Treaty of Paris) was among the provisions objected to in Washington, and in the territory. Many advocated that the recognition of the cultural identity of the people was fundamental, and should be reflected - at the least implied - in the primary constitutional document governing the polity. Others argued against assigning specific preferences to this group, and still others even protested the very reference to their existence. This issue remains an unresolved matter to present day.
The most recent development on the eve of the centennial as a U.S. territory is the provision in 2016 of federal Department of Interior resources to the USVI, through the University of the Virgin Islands, for a program on political status and constitution education; research and development; civic discourse; and political awareness.
This is the state of play on the eve of the centennial of the U.S. Virgin Islands as a U.S. unincorporated territory. It is a good time to take stock on how the territory has evolved, and to look ahead toward a direction which is in the best interest of the people. In this context, a number of fundamental questions arise.
Among these fundamental questions is whether the minimum requirements of democratic legitimacy are met through a political system of governance which maintains unilateral authority over a people by a government in which they have no political rights? A corollary is whether the people have a problem with being equated with “territory or other property,” and referred to in legislation as offshore possessions, insular areas, and similar terms which many regard as insensitive and demeaning given the historical legacy of slavery?
Thus, the centennial provides the USVI with a choice of which path to take or in the parlance of the movie “Matrix”, whether to take to take the blue pill or the red one. One continues the illusion of inclusion; the other reveals the objective reality. Is the society comfortable with the present arrangement as an unincorporated territory whose government, according to a federal court ruling, exists only by the “legislative grace of Congress?” If so, then there should be no surprise when laws, regulations and other decisions continue to be unilaterally applied, without the consent of the governed, and often against their wishes with unknown repercussions. Inaction may result in change through unilateral imposition, but this may not be the change which is desired.
But if awareness emerges among the people and its leadership that the dependency status has become anachronistic, then much work lies ahead. The motto of the 1993 USVI political status referendum will resonate in 2017: Choose or lose!
(Dr. Carlyle G. Corbin is International Advisor on Governance in U.S. Virgin Islands.)