Will the 9th Circuit say ‘Let them eat cake?’

November 3, 2018

In the self-rule plebiscite lawsuit, will the court uphold the outsider’s perspective?

 

“They can’t have their cake and eat it too.”

 

That’s how Arnold Davis likes to summarize his lawsuit against Guam’s plebiscite election. He’s referring, of course, to the baggage that comes with the benefits of being considered U.S. soil. The native Chamorros, long denied a say in their political future, are nonetheless hungry for that cake, but it is unlikely that any court decision will satisfy their quest for self-determination.

 

After an Oct. 10 hearing at the University of Hawaii’s 9th Circuit satellite court, three federal judges will determine the fate of Guam’s mythical plebiscite election. Will they affirm the outsider’s perspective that it would unfairly silence non-natives, or will they acknowledge the desire of Guam’s indigenous people to speak?

 

Upon hearing the tape of the hearing, one listener observed the court “bending over backward to try to find some way to support the Guam position,” while another listener was “so frustrated with the judges constantly interrupting.”

 

It’s not hard to guess where each of those persons stand on the issue, but it is impossible to discern what the 9th Circuit will ultimately decide in their own quiet moments of reflection over the months to come.

 

“It’s an interesting question,” Circuit Judge Marsha S. Berzon said over and over, while she grilled both petitioners on the question of race and whether ancestry could be used to determine who decides a political question.

 

 The Guam legislature created the political status plebiscite as a mechanism for returning to the island’s native inhabitants the ability to determine the future political status of the unincorporated U.S. territory. Once 70 percent of native inhabitants signed onto the registry, a plebiscite political status election would be held to decide whether Guam should become a free associate of the U.S., a state, or an independent nation.

 

In November 2011, Davis sued the government of Guam, arguing that the plebiscite election discriminated against him and other non-native inhabitants on the island who were ineligible to participate. Davis moved to Guam in 1977 and retired from the Air Force in 1982. While he now has a second home in Tucson, Ariz., Davis maintains his residency in Guam.

 

   Dave Davis

 

 

On March 8, 2017, Tydingco-Gatewood ruled in favor of Davis, writing in her 26-page opinion, “the court recognizes the long history of colonization of this island and its people, and the desire of those colonized to have their right to self-determination. However, the court must also recognize the right of others who have made Guam their home.”

 

"It would be impossible for a colonized people under U.S. rule to exercise any measure of self-determination because the mere act of designating them, designating who constitutes as a colonized class would collapse automatically into a racial categorization," Guam deputy attorney general Julian Aguon told the panel in Honolulu. "The lower court's decision if allowed to stand would essentially end this project."

 

“The purpose of the law is to identify the group entitled to decolonization rights,” Aguon implored in speech so impassioned it drew commentary from the panel. Aguon himself is a University of Hawaii alumnus, and spoke before his former dean, professors and peers.

 

Davis v. Guam follows in the wake of the U.S. Supreme Court Case Rice v. Cayetano (2000) in which a white rancher successfully sued over a law limiting the board of trustees for the Office of Hawaiian Affairs to native Hawaiians. But Aguon said the court need not follow in Rice’s footsteps.

 

"You're doing a very good job, it's therefore hard to get a word in edgewise,” said Circuit Judge Kim McLane Wardlaw. “This is a state sponsored opinion poll, [so] why don't you just conduct a poll and everybody that was a descendant could just check off that?”

 

Aguon explained the district court’s Fourteenth Amendment ruling prohibited even that. The Guam Election Commission’s legal counsel advised halting the Decolonization Registry in March 2017 after the district court’s ruling.

 

The importance of the 1997 Commission on Decolonization is that until its creation, nobody had really asked the Chamorro people what they wanted — not when the Spanish landed in 1521, not when the U.S. raised their flag in 1898, not when Japan stormed through in 1941, and certainly not in 1944 when the U.S. returned. Even now, two decades have passed without the promised plebiscite being held.

Julian Aguon 

 

While the plebiscite is not the Chamorros’ only recourse for self-determination, the lawsuit begs the question: if not through local legislation, then how?

On the same day Julian Aguon delivered Guam’s impassioned appeal, six Chamorro women traveled to New York — on their own dollar — to address the United Nations’ Special Political and Decolonization committee at the 73rd General Assembly. This is following November 2017, when the U.S. last voted against a U.N. resolution that would have formerly opened up the discussion of decolonization between the Chamorros and the federal government. 

 

 “We have to take matters into our own hands, and I don’t mean that in terms of violence, I mean that as a true revolution of our spirit, of our purpose. We have to be able to as a people begin to be more independent, begin to make more life choices that make us self-sufficient,” the tireless activist Victoria Leon Guerrero said. “If you are a self-determined person then no matter the verdict you are going to overcome these obstacles because your end goal is something you believe in.”


Davis maintains that he holds no animosity toward the Chamorros but does not think the pool of eligible voters in any government-sponsored election should be limited.

 

Victoria Leon Guerrero

 

“I firmly believe that the Chamorro people should have their shot at self-determination. I never have disputed that. I have always supported it, but they are a community within a community,” Davis said in a telephone interview from his home in Tucson. “They are part of a community of the U.S. citizen population of Guam and there is no reason why they should steer my and my decedents’ preferences when it comes to the relationship with the United States of America.”

    While the plebiscite is not the Chamorros’ only recourse for self-determination, the lawsuit begs the question: if not through local legislation, then how?

Besides, Davis maintains, it is undeniable that the question of Guam ceding is important to everyone who calls Guam home including 44,000 Filipino, 11,800 white and 11,700 Chuukese residents, as well as thousands of Koreans, Japanese, and uncategorized Pacific Islanders.

 

“The government of Guam is not a Chamorro government, but a Guamanian government. Guamanian self-determination and Chamorro self-determination can, and inevitably will, be pursued concurrently,” said Davis. “Let us not confuse the two, however, and let us treat them properly, as separate concepts."

 

At the Oct. 10 hearing, the panel tried to parse out whether the potential non-binding plebiscite holds political significance. "If this referendum is going to be communicated as the views of the people in it and nobody else, what is everybody else’s interest in it?" Berzon asked attorney Lucas Townsend, who is representing Davis.

 

“It has government action,” Townsend replied. “The results of the plebiscite will be communicated to the president, congress, and the secretary general of the United Nations and Guam will thereby be taking a position.”

 

Additionally, both Davis and the government of Guam acknowledge that what happens next is likely to determine the outcome of the pending lawsuit between the U.S. and the Chamorro Land Trust.

 

The appeals court is not baking from scratch and will not determine whether Davis was cut out of an important election nor is it likely to weigh in on how the Chamorro should decolonize. It is panel’s sole job to review whether “native inhabitant” collapses into a racial classification and whether that inhibits “the equal protection of the laws.”

 

 Whether or not the cake leaves behind a bad taste is another matter entirely.   (Portions of this reporting originally appeared in Courthouse News.)

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