Inter-American Commission on Human Rights

In the Matter of:

Rosselló v. United States
Case No. 13.326

BRIEF OF:
The Hon. Madeleine Z. Bordallo
Member of Congress representing Guam
The Hon. Stacey Plaskett
Member of Congress representing U.S. Virgin Islands
The Hon. Gregorio Kilili Sablan
Member of Congress representing the Northern Mariana Islands
The Hon. Eddie Baza Calvo
Governor of Guam
The Hon. Carl T.C. Gutierrez
Former Governor of Guam
The Hon. John de Jongh, Jr.
Former Governor of the U.S. Virgin Islands
The Hon. Charles W. Turnbull
Former Governor of the U.S. Virgin Islands
The Hon. Donna M. Christian-Christensen
Former Congresswoman representing the U.S. Virgin Islands

AS AMICI CURIAE
April 2018
Counsel listed on next page
Counsel for Amici Curiae

Neil Weare, Esq.

Equally American Legal Defense & Education Fund
1300 Pennsylvania Ave., N.W., #190-413
Washington, D.C. 20004
(202) 304-1202
nweare@equallyamerican.org

Geoffrey M. Wyatt, Esq.

Sam Levor, Esq.
Marisa Van Saanen, Esq.
1440 New York Ave., N.W.
Washington, D.C. 20005
(202) 371-7000
 TABLE OF CONTENTS

I. Introduction and Background ..........................................................................................1

II. Guam ...................................................................................................................................4

III. U.S. Virgin Islands ...........................................................................................................12

IV. Northern Mariana Islands ..............................................................................................19

V. Conclusion ........................................................................................................................25

i
 TABLE OF AUTHORITIES

Treaties and International Law

Convention Between the United States and Denmark (Cession of the Danish West Indies),
Denmark-U.S., Aug. 14, 1916, T.S. No. 629, available at
https://www.doi.gov/sites/doi.gov/files/migrated/oia/about/upload/vitreaty.pdf...................... 14
G.A. Res. 1541 (XV) (Dec. 15, 1960) ............................................................................................ 6
Treaty of Paris, Spain-U.S., art. IX, Dec. 10, 1898, available at
http://avalon.law.yale.edu/19th_century/sp1898.asp .................................................................. 7
UN Charter art. 73 .......................................................................................................................... 6

U.S. Constitutional Provisions

U.S. Const. amend. X...................................................................................................................... 3
U.S. Const. art. IV, § 3 .................................................................................................................... 3

Federal Statutes
1936 Organic Act of the United States, Pub. L. No. 749, 49 Stat. 1807 (1936), available at
http://www.legisworks.org/congress/74/publaw-749.pdf ......................................................... 18

48 U.S.C. § 1423i (2012) ................................................................................................................ 7

48 U.S.C. § 1591 (2012) ............................................................................................................... 18

Pub L. No. 94-241, § 1, 90 Stat. 263 (1976), Covenant to Establish a Commonwealth of the
Northern Mariana Islands in Political Union with the United States of America, art. I, available
at https://www.law.cornell.edu/uscode/pdf/uscode48/lii_usc_
TI_48_CH_17_SC_I_SE_1801.pdf. ................................................................................... 25, 28

Pub. L. No. 380, 39 Stat. 1132 (1917), available at

http://www.legisworks.org/congress/64/publaw-389.pdf ................................................... 17, 18

Pub. L. No. 517, 68 Stat. 497 (1954), available at https://www.gpo.gov/fdsys/pkg/STATUTE-

68/pdf/STATUTE-68-Pg497.pdf#page=1................................................................................. 18

Uniformed and Overseas Citizens Absentee Voting Act,

52 U.S.C §§ 20301-20311 (2012) ............................................................................................. 25

ii
 Federal Agency Reports
Bureau of Justice Statistics, Federal Criminal Case Processing Statistics, available at
http://www.bjs.gov/fjsrc/ ............................................................................................................. 4

Center on Budget and Policy Priorities, Introduction to Medicaid, available at

https://www.cbpp.org/sites/default/files/atoms/files/policybasics-medicaid_0.pdf
(last updated Aug. 16, 2016). .................................................................................................... 30

CIA, World Factbook: U.S. Virgin Islands, available at

https://www.cia.gov/library/publications/the-world-factbook/geos/vq.html (expand “People
and Society” sub-heading) (last updated Feb. 22, 2018)........................................................... 18

Selective Service System, Who Must Register, available at https://www.sss.gov/Registration-

Info/Who-Registration (last visited Mar. 17, 2018) .................................................................... 3

U.S. Census Bureau, Thousands of U.S. Veterans Call the Island Areas Home, available at
https://www.census.gov/newsroom/blogs/random-samplings/2016/05/thousands-of-u-s-
veterans-call-the-island-areas-home.html (last updated May 2, 2016) ....................................... 2

U.S. Dep’t. of State, Case Study: Brown Tree Snake, available at https://2001-
2009.state.gov/g/oes/ocns/inv/cs/2309.htm (last visited Mar. 13, 2018) .................................. 10

U.S. Department of the Interior, Office of Insular Affairs, Island Military Heroes, available at
http://www.doi.gov/oia/islanders_in_the_military/heroes (last visited Mar. 17, 2018).............. 3

U.S. Environmental Protection Agency, Superfund Site: Andersen Air Force Base,
https://cumulis.epa.gov/supercpad/SiteProfiles/index.cfm?fuseaction=
second.topics&id=090282 ......................................................................................................... 10

U.S. Gov’t Accountability Office, GAO-16-324, Medicaid and CHIP – Increased Funding in
U.S. Territories Merits Improved Program Integrity Efforts, (2016), available at
https://www.gao.gov/assets/680/676438.pdf ................................................................ 13, 30, 31

U.S. National Archives, Korean War: State-Level Fatal Casualty Lists sorted Alphabetically by
Last Name, available at https://www.archives.gov/research/military/korean-war/casualty-
lists/state-level-alpha.html (last visited Mar. 17, 2018) .............................................................. 3

U.S. National Archives, Vietnam War: State-Level Fatal Casualty Lists sorted Alphabetically by
Last Name, available at https://www.archives.gov/research/military/vietnam-war/casualty-
lists/state-level-alpha.html (last visited Mar. 17, 2018) .............................................................. 3

U.S. Virgin Island Quarter, United States Mint, available at https://www.usmint.gov/coins/coin-

medal-programs/dc-and-us-territories/us-virgin-islands (last visited Mar. 13, 2018) .............. 17

U.S. Virgin Islands, U.S. Dep’t of the Interior, Office of Insular Affairs, available at
https://www.doi.gov/oia/islands/virgin-islands (last visited Mar. 13, 2018) ...................... 17, 18

iii
 Other Authorities

‘At the Tip of the Spear’: Guam Residents on U.S.-North Korea Tensions, N.Y. Times, Aug. 10,
2017, available at https://www.nytimes.com/2017/08/10/us/
guam-residents-north-korea.html ................................................................................................ 7

Aaron Steckelberg and Chiqui Esteban, More than 4 million Americans don’t have anyone to
vote for them in Congress, Wash. Post, Sept. 28, 2017, available at
https://www.washingtonpost.com/graphics/2017/national/fair-representation/.......................... 2

Anita Hofschneider, Can These Islands Survive America’s Military Pivot to Asia?, Honolulu
Civil Beat, Dec. 12, 2016, available at http://www.civilbeat.org/2016/12/can-these-islands-
survive-americas-military-pivot-to-asia/. .................................................................................. 28

Anita Hofschneider, Tinian: ‘We Believed in America’, Honolulu Civil Beat, Dec. 14, 2016,
available at http://www.civilbeat.org/2016/12/tinian-we-believed-in-america/. ...................... 27

Arnold H. Leibowitz, Defining Status: A Comprehensive Analysis of United States Territorial

Relations (2014) .......................................................................................................................... 7

Associated Press, Pacific Natives Sue U.S. Navy Over Live Fire Training Plans, CBS News, July
27, 2016, available at https://www.cbsnews.com/news/pacific-natives-northern-mariana-
islands-sue-us-navy-live-fire/. ................................................................................................... 28

Bea Cabrera, TripAdvisor: NMI Tourism Growth ‘Dramatic’, Saipan Tribune, Oct. 25, 2017,
available at https://www.saipantribune.com/index.php/tripadvisor-nmi-tourism-growth-
dramatic/. ................................................................................................................................... 26

Ben Mutzabaugh, Delta Air Lines will pull out of Guam, ending flights by Jan. 8, USA Today,
Sept. 20, 2017, available at
https://www.usatoday.com/story/travel/flights/todayinthesky/2017/09/20/delta-air-lines-pull-
out-guam-ending-flights-jan-8/684409001/ .............................................................................. 14

Blaine Harden, Guam’s Young, Steeped in History, Line Up to Enlist, Wash. Post, Jan. 27, 2008,
available at http://www.washingtonpost.com/wp-
dyn/content/article/2008/01/26/AR2008012602050.html........................................................... 8

Brianna Sacks, This is What it is Like For People Trying to Get Health Care on the Devastated
US Virgin Islands, BuzzFeed News, Sept. 28, 2017, available at
https://www.buzzfeed.com/briannasacks/us-virgin-islands-
hospitals?utm_term=.fjoPG82zo#.kaKErR5w6 ........................................................................ 21

Catherine Norton, Military Buildup Seen as Boom, Test for Tiny Island of Guam, PBS News
Hour, June 9, 2008, available at https://www.pbs.org/newshour/world/military-buildup-seen-
boom-test-tiny-island-guam ...................................................................................................... 11

iv
Cherrie Anne E. Villahermosa, DPL Identifies 74 Lots for Agricultural Homesteading on Pagan,
Marianas Variety, Sept. 13, 2016, available at http://www.mvariety.com/cnmi/cnmi-
news/local/89144-dpl-identifies-74-lots-for-agricultural-homesteading-on-pagan. ................. 28

Clynt Ridgell, GovGuam Shortfall Estimated at $67M; $20M More than Original Estimate,
Pacific News Center, Feb. 13, 2018, available at https://pacificnewscenter.com/govguam-
shortfall-estimated-at-67m-20m-more-than-original-estimate/ ................................................ 13

Congresswoman Plaskett’s Transfer Day Centennial Ceremony Remarks (Mar. 31, 2017),
available at https://plaskett.house.gov/news/documentsingle.aspx?
DocumentID=182 .......................................................................................................... 15, 16, 17

Dennis B. Chan, Navy Directs Second EIS Review, Saipan Tribune, Oct. 5, 2015, available at
http://www.saipantribune.com/index.php/navy-directs-second-eis-review/. ............................ 27

Eddie Calvo, Governor Calvo Addresses United Nations Fourth Committee - October 3, 2017,
YouTube, (Oct. 10, 2017), https://www.youtube.com/watch?v=ivZ1zigcPJ4 ........................... 5

Emergency Response and Recovery: Central Takeaways from the Unprecedented 2017
Hurricane Season: Hearing Before the H. Transp. & Infrastructure Comm., 115th Cong.
(2017) (testimony of Stacey Plaskett, Congresswoman, U.S. Virgin Islands), available at
https://plaskett.house.gov/news/documentsingle.aspx?DocumentID=243
(last updated Nov. 2, 2017) ........................................................................................... 20, 21, 22

Erwin Encinares, Every Citizen Has Right to Vote, Saipan Tribune, Oct. 10, 2017, available at
https://www.saipantribune.com/index.php/every-citizen-right-vote......................................... 25

Governor Calvo delivers his final State of the Island Address, Kuam News, available at
http://www.kuam.com/story/37491190/2018/02/Tuesday/governor-calvo-delivers-his-final-
state-of-the-island-address (last updated Feb. 20, 2018, 4:40 AM) ...................................... 9, 13

Greg Allen, In the U.S. Virgin Islands, Health Care Remains in a Critical State, NPR News, Feb.
4, 2018, available at https://www.npr.org/2018/02/04/582256476/in-the-u-s-virgin-islands-
health-care-remains-in-a-critical-state ................................................................................ 20, 21

Haidee V. Eugenio, Guam Contractors: H-2B Visa Denials Forced Congress to Act, Pacific
Daily News, available at http://www.guampdn.com/story/news/2018/01/01/guam-contractors-
defense-law-response-uscis-h-2-b-visa-denials-has-forced-unprecedented-congress-
act/991986001/ (last updated Jan. 1, 2018, 4:00 PM) ............................................................... 11

Hearing on the Need for Transparent Financial Accountability in Territories’ Disaster Recovery
Efforts Before the H. Comm. on Natural Resources, 115th Cong. (2017) (testimony of Kenneth
E. Mapp, Governor, U.S. Virgin Islands) (Nov. 14, 2017), available at
http://docs.house.gov/meetings/II/II00/20171114/106587/HHRG-115-II00-Wstate-MappK-
20171114.pdf....................................................................................................................... 21, 23

v
James Cave, The Pentagon Wants to Bomb the Hell Out of This Tiny Pacific Island, Huffington
Post, May 29, 2015, available at https://www.huffingtonpost.com/2015/05/29/pagan-island-
marines-military_n_7342168.html. ........................................................................................... 28

Jasmine Stole, Compact-Impact Costs for Guam Climb to Estimated $148M, Guam Daily Post,
Feb. 6, 2016, available at https://www.postguam.com/news/local/compact-impact-costs-for-
guam-climb-to-estimated-m/article_37374b9c-cbf1-11e5-abe8-af215387168e.html .............. 14

Joel D. Pinaroc, CNMI Remembers its Fallen Heroes, Saipan Tribune, May 26, 2015, available
at https://www.saipantribune.com/index.php/cnmi-remembers-its-fallen-heroes/ ................... 26

John I. Borja, 25 Years Later, Andersen Air Force Base Still Cleaning Up Contamination, EPA
Says, Pacific Daily News, Oct. 15, 2017, available at
http://www.guampdn.com/story/news/2017/10/15/25-years-later-andersen-air-force-base-still-
cleaning-up-contamination-epa-says/764211001/ .................................................................... 10

Josh Hicks, Guam: A High Concentration of Veterans, But Rock-Bottom VA Funding, Wash.
Post, Oct. 29, 2014, available at https://www.washingtonpost.com/news/federal-
eye/wp/2014/10/29/guam-a-high-concentration-of-veterans-with-little-va-
funding/?utm_term=.8ccdc3a21d4e .......................................................................................... 12

Kaiser Family Foundation, Federal Medical Assistance Percentage (FMAP) for Medicaid and
Multiplier, available at https://www.kff.org/medicaid/state-indicator/federal-matching-rate-
and-multiplier/?currentTimeframe=1&sortModel=%7B%22colId%22:%22
FMAP%20Percentage%22,%22sort%22:%22desc%22%7D
(last visited Mar. 13, 2018). ...................................................................................................... 30

Katherine Aguan & Tony Palomo, WWII: From Occupation to Liberation, Guampedia, available
at http://www.guampedia.com/wwii-from-occupation-to-liberation/
(last visited Mar. 6, 2018) ........................................................................................................... 8

Kenneth E. Mapp, Governor U.S. Virgin Islands, 2018 State of the Territory Address, (Jan. 22,
2018), available at https://drive.google.com/file/d/1_-
zu9pWaWkKVTjPoSNcMGn85x6n0JRlJ/view ................................................................. 19, 24

Letter from Members of Congress to Postmaster General, Feb. 12, 2018, available at
https://plaskett.house.gov/uploadedfiles/02.12.18_letter_to_postmaster_general.pdf. ............ 22

Letter from the U.S. Environmental Protection Agency to Craig B. Whelden, Executive Director,
U.S. Marine Corps Forces Pacific, (Sept. 29, 2015), available at
https://www.documentcloud.org/documents/3235232-
EPA-Comments-on-CJMT-DEIS.html. .................................................................................... 29

Louella Losinio, Business, Political Leaders Push for Lifting of Jones Act, Guam Daily Post,
Oct. 16, 2017, available at https://www.postguam.com/news/local/business-political-leaders-
push-for-lifting-of-jones-act/article_fa0b3be2-aff7-11e7-97bd-2f7281249fcc.html ................ 14

vi
Pedro Sanchez, Guahan/Guam: The History of Our Island, (1998) ............................................... 9

Richard Parker, The Real Reason North Korea Is Threatening Guam, Politico, Aug. 15, 2017,
available at https://www.politico.com/magazine/story/2017/08/15/north-korea-guam-nuclear-
weapons-215493.......................................................................................................................... 8

Richard Pérez-Peña, After Irma and Maria: How 3 Spots on the U.S. Virgin Islands Are Faring,
N.Y. Times, Nov. 10, 2017, available at https://www.nytimes.com/2017/11/10/us/virgin-
islands-hurricanes.html. ............................................................................................................ 22

Shawn Raymundo, Navy, GWA Water Deal Could Be Closer Step to Fena, Pacific Daily News,
Aug. 24, 2016, available at http://www.guampdn.com/story/news/2016/08/24/navy-gwa-
water-deal-could-closer-step-fena/88441702/ ........................................................................... 10

Stacey Plaskett, The Ironic State of Freedom Without Democracy, The Hill, July 11, 2017,
available at http://thehill.com/blogs/congress-blog/politics/341403-the-ironic-state-of-
freedom-without-democracy ..................................................................................................... 19

Stacey Plaskett, The Virgin Islands Must Be Sober-Minded As We Execute Our Rebuilding, V.I.
Consortium, Feb. 20, 2018, available at http://viconsortium.com/opinion/the-virgin-islands-
must-be-sober-minded-as-we-execute-our-rebuilding/. ............................................................ 23

Steve Limtiaco, Calvo tells industry buildup forum he doesn’t support the buildup, Pacific Daily
News, available at http://www.guampdn.com/story/news/2018/03/07/calvo-tells-industry-
buildup-forum-he-doesnt-support-buildup/402177002/
(last updated Mar. 8, 2018, 10:49 AM) ..................................................................................... 11

Steve Limtiaco, Key Events in the Guam Military Buildup, Pacific Daily News, Aug. 18, 2017,
available at http://www.guampdn.com/story/news/2017/08/18/key-events-in-guam-military-
buildup/578993001/ .................................................................................................................. 10

Thomas H. Neale, Cong. Research Serv., R43824, Electoral College Reform: Contemporary
Issues for Congress, (2017), available at https://fas.org/sgp/crs/misc/R43824.pdf. ................... 2

Tim Craig, Shredded roofs, shattered lives, Wash. Post, Feb. 6, 2018, available at
https://www.washingtonpost.com/news/national/wp/2018/02/06/feature/as-tourism-returns-
hurricane-recovery-in-the-virgin-islands-is-leaving-some-residents-
behind/?utm_term=.f318c42d2ac4 ............................................................................................ 16

Tiphanie Yanique, Americans in a Battered Paradise, N.Y. Times, Sept. 12, 2017, available at
https://www.nytimes.com/2017/09/12/opinion/irma-virgin-islands-damage.html ................... 15

U.S. Virgin Islands, Bloomberg Philanthropies, available at

https://www.bloomberg.org/program/founders-projects/bringing-assistance-u-s-virgin-islands-
hurricanes-irma-maria/ (last visited Mar. 13, 2018) ................................................................. 16

vii
Washington Post, Faces of the Fallen, available at
http://apps.washingtonpost.com/national/fallen/ (last visited Mar. 17, 2018) ............................ 3

viii
I. Introduction and Background

The United States is the oldest democracy in the world. It is also a global

champion for expanding democracy to peoples throughout the world. Yet, when it comes to the

democratic rights of nearly 4 million U.S. citizens living in the country’s territories, the United

States falls far short of its own foundational democratic and constitutional principles of

government by consent. United States citizens in the territories cannot vote for President and are

denied voting representation in Congress. Yet the federal government has more power over the

daily lives of U.S. citizens living in the country’s territories than it does for their countrymen

living anywhere else in the United States. This democratic deficit and lack of political

participation is not just a violation of the United States’ own core principles, it is also a violation

of its commitments under international law, including the American Declaration of the Rights

and Duties of Man.1

Amici2 are current and former elected officials from U.S. territories who stand in

solidarity with the Petitioners in Rosselló v. United States in calling on the Inter-American

Commission on Human Rights at the Organization of American States (“the Commission”) to

recognize that the United States is violating its international law commitments by failing to

ensure full democratic participation for the nearly 4 million U.S. citizens living in U.S.

territories. As proud and patriotic citizens, amici believe it is their duty to speak out when the

United States does not live up to the democratic values that serve as the bedrock of our nation.

The rights of U.S. citizens should not depend on where they happen to live – every U.S. citizen

has an equal claim to being part of We the People.

1
See Petitioner Observations Regarding the Merits of their Case at 113-134.
2
A full list of amici is included as Appendix A.

1
 The combined population of the United States’ five territories (3.7 million), is

larger than the combined population of the country’s five smallest states (3.6 million).3 Indeed,

more U.S. citizens live in its territories than live in 21 of the 50 U.S. states. Yet, while residents

of the five smallest states are represented by ten U.S. Senators and five voting U.S.

Representatives and have fifteen votes in the Electoral College,4 the political participation of

residents of U.S. territories is limited to five non-voting Delegates to the U.S. House of

Representatives, no representation at all in the U.S. Senate, and zero votes in the Electoral

College.5

Among those disenfranchised in U.S. territories are more than 10,000 veterans

who proudly served in the U.S. Armed Forces to defend America’s democratic and constitutional

principles.6 When males residing in U.S. territories turn 18, they are required to register for

selective service, making them eligible to be drafted for U.S. military service.7 More than 20,000

territorial residents have served in Iraq and Afghanistan, with nearly 100 paying the ultimate

3
Aaron Steckelberg and Chiqui Esteban, More than 4 million Americans don’t have anyone to vote for them
in Congress, Wash. Post, Sept. 28, 2017, available at https://www.washingtonpost.com/graphics/2017/national/fair-
representation/.
4
Under the U.S. Constitution, the Electoral College’s 538 members – selected in a variety of ways by the
voters of each state and the District of Columbia – are who actually vote to decide who is President. See Thomas H.
Neale, Cong. Research Serv., R43824, Electoral College Reform: Contemporary Issues for Congress, (2017),
available at https://fas.org/sgp/crs/misc/R43824.pdf.
5
Residents of U.S. territories do participate in the presidential primary process, where each political party is
able to establish its own set of rules.
6
U.S. Census Bureau, Thousands of U.S. Veterans Call the Island Areas Home, available at
https://www.census.gov/newsroom/blogs/random-samplings/2016/05/thousands-of-u-s-veterans-call-the-island-
areas-home.html (last updated May 2, 2016).
7
Selective Service System, Who Must Register, available at https://www.sss.gov/Registration-Info/Who-
Registration (last visited Mar. 17, 2018).

2
sacrifice.8 Hundreds of territorial residents serving in uniform have been killed in action in past

conflicts, including 434 in the Vietnam War9 and 843 in the Korean War.10

The denial of voting rights and federal representation matters to residents of U.S.

territories. Structurally, the federal government has significantly more power over residents of

U.S. territories than it does over residents of U.S. states.11 As a practical matter, federal

decisions affect nearly every aspect of daily life in the territories, often with profound

consequences. For example, following Hurricanes Irma and Maria, the responsiveness of the

federal government was literally an issue of life and death for thousands of people in the U.S.

Virgin Islands and Puerto Rico. On Guam, residents sit in the cross hairs of nuclear threats from

North Korea as the federal government considers diplomatic and military solutions to this crisis.

America’s military conflicts disproportionally affect families in the Northern Mariana Islands

and American Samoa, where service casualty rates are four to seven times the national average.

Federal tax policies, federal mandates, and decisions about federal spending affect everything

from healthcare, to education, to roads, to waste disposal, to transportation costs, and more.

Indeed, it would be difficult to talk about any issue facing U.S. territories without there being an

important nexus to decisions made by the federal government.

8
See U.S. Department of the Interior, Office of Insular Affairs, Island Military Heroes, available at
http://www.doi.gov/oia/islanders_in_the_military/heroes (last visited Mar. 17, 2018); Washington Post, Faces of the
Fallen, available at http://apps.washingtonpost.com/national/fallen/ (last visited Mar. 17, 2018).
9
U.S. National Archives, Vietnam War: State-Level Fatal Casualty Lists sorted Alphabetically by Last
Name, available at https://www.archives.gov/research/military/vietnam-war/casualty-lists/state-level-alpha.html (last
visited Mar. 17, 2018).
10
U.S. National Archives, Korean War: State-Level Fatal Casualty Lists sorted Alphabetically by Last Name,
available at https://www.archives.gov/research/military/korean-war/casualty-lists/state-level-alpha.html (last visited
Mar. 17, 2018).
11
Compare U.S. Const. art. IV, § 3, cl. 2 (“The Congress shall have power to dispose of and make all needful
Rules and Regulations respecting the Territory or other Property belonging to the United States . . . .”) with U.S.
Const. amend. X (“The powers not delegated to the United States by the Constitution, nor prohibited by it to the
States, are reserved to the States respectively, or to the people.”).

3
 Disenfranchisement in the federal executive and legislative branches also creates

a lack of democratic accountability for residents of U.S. territories in the federal judicial branch.

Federal judges are appointed by the President and confirmed by the Senate. The same is true for

federal prosecutors. So residents of U.S. territories not only lack a political voice in determining

the laws they are required to follow, but when it comes time to determine whether those laws are

being followed, those residents enjoy no democratic nexus to those who sit in judgment. While

federal judges and prosecutors serve an important role in ensuring the rule of law and public

safety in U.S. territories, this lack of democratic accountability raises serious concerns. And

each year hundreds of territorial residents lose their liberty as a result of federal criminal

prosecutions and sentences by federal judges.12

Amici present this brief to the Commission to provide additional context on the

impact disenfranchisement has on territories not covered in Petitioner’s brief, focusing on Guam,

the U.S. Virgin Islands, and the Northern Mariana Islands. Each section provides a historical

overview of a particular territory, and explains how decisions made by the federal government

impact daily life in that territory. Amici hope this presentation will help the Commission better

understand both what is at stake and the importance of recognizing that the United States must

take action to expand political participation in U.S. territories.

II. Guam

Guam has been a part of the United States since 1898 – nearly 120 years – yet the

U.S. citizens who call Guam home remain unable to vote for President and lack voting

representation in Congress. At the same time, the federal government makes important decisions
12
In FY 2014, a total of 1,695 territorial residents were criminally charged in federal court, with 1,653
territorial residents receiving sentences that year. Bureau of Justice Statistics, Federal Criminal Case Processing
Statistics, available at http://www.bjs.gov/fjsrc/.

4
– even life and death decisions – that affect the people of Guam. In an October 2017 speech

before the United Nations, Guam Governor Eddie Baza Calvo highlighted that “the people of

Guam are Americans, yet the rights that other Americans may take for granted are not a right for

us, but an impossibility – the ability even to vote for a President that sends us to war.”13

Governor Calvo asked, “When will [the people of Guam] be held as equals, and given the same

rights as other Americans, instead of being viewed as second class citizens?”

Following Governor Calvo’s address, the United States – for the first time in 20

years – voted against a United Nations resolution calling for structural changes in the

relationship between the United States and Guam that would allow it to be removed from the list

of 17 “Non-Self Governing Territories” (NSGTs) recognized by the United Nations.14 NSGTs

are defined in the United Nations Charter as “territories whose peoples have not yet attained a

full measure of self-government.”15 For Guam to be removed from the list of NSGTs while

continuing its relationship with the United States, the United States must ensure that the people

of Guam enjoy “equal rights and opportunities for representation and effective participation at all

levels in the executive, legislative and judicial organs of government.”16 The current

relationship, with only a non-voting Delegate to Congress, falls far short of this standard. Guam

is proud to be part of the United States, and its nearly 170,000 residents are proud to be U.S.

citizens. But when it comes to democratic participation in laws and policies that affect the

13
Eddie Calvo, Governor Calvo Addresses United Nations Fourth Committee - October 3, 2017, YouTube,
(Oct. 10, 2017), https://www.youtube.com/watch?v=ivZ1zigcPJ4.
14
John Borja, U.S. votes against U.N. resolution for Guam self-determination, Pacific Daily News, , available
at http://www.guampdn.com/story/news/2017/11/09/u-s-votes-against-u-n-resolution-guam-self-
determination/847082001/ (last updated Nov. 9, 2017, 5:10 PM). The U.S. Virgin Islands and American Samoa are
also listed as NSGTs; Puerto Rico and the Northern Mariana Islands are not.
15
UN Charter art. 73.
16
G.A. Res. 1541 (XV), at 30 (Dec. 15, 1960). Alternatives to equality under the U.S. flag include
Independence and Free Association.

5
people of Guam, the United States both fails to live up to its own democratic and constitutional

principles and falls short of the commitments it has made under international law.

A. History of Guam’s Relationship with the United States

Guam is located in the western Pacific, roughly east of Manila and south of

Tokyo. It is the largest island in Micronesia, although it is only about three times the size of

Washington, D.C., which is 8,000 miles and 14 time zones away. Guam became a part of the

United States in 1898 following the Spanish-American War. The 1898 Treaty of Paris, which

transferred sovereignty over Guam from Spain to the United States, provided that “[t]he civil

rights and political status of the native inhabitants of the territories hereby ceded to the United

States shall be determined by the Congress.”17

Between 1898 and 1950, the people of Guam were administered by the U.S.

Navy, with political participation limited to an advisory body known as the Guam Congress. 18 In

1950, Congress passed an Organic Act, which recognized the people of Guam as U.S. citizens

and transferred authority from the Navy to the U.S. Department of the Interior, establishing for

the first time a civilian government. This also began the slow expansion of political participation

at the local level for the people of Guam, first with an elected legislature in 1950, followed by an

elected Governor in 1968, and then a non-voting Delegate to Congress in 1972. But even today,

Congress continues to reserve the power to annul any laws enacted by the Guam legislature.19

Moreover, changes to Guam’s Organic Act can only be enacted by Congress, where residents of

Guam lack voting representation.

17
Treaty of Paris, Spain-U.S., art. IX, Dec. 10, 1898, available at
http://avalon.law.yale.edu/19th_century/sp1898.asp.
18
Arnold H. Leibowitz, Defining Status: A Comprehensive Analysis of United States Territorial Relations,
318-323 (2014).
19
48 U.S.C. § 1423i (2012).

6
 Guam’s strategic location on the doorstep of Asia has long made it a critical

element of the United States’ national security; indeed, Guam has been described as the “tip of

the spear” of U.S. military power.20 This status has had both benefits and drawbacks for the

people of Guam. For example, North Korea’s recent nuclear threats against Guam are closely

related to Guam’s strategic military importance.21 Guam is also the only United States

jurisdiction to be invaded and occupied by a foreign power – the bombing of Pearl Harbor,

coordinated with a concurrent attack of Guam, in 1941 marked the beginning of a brutal three-

year occupation of Guam by the Imperial Japanese Army, the consequences of which are still felt

today.22 The U.S. military has also made many important contributions to the development of

Guam, even as controversies remain.

Despite the denial of voting rights, Guam’s sons and daughters have a proud

history of military service and sacrifice defending the Constitution and its democratic principles.

This service has not come without cost – the casualty rate of Guam service members in Iraq and

Afghanistan is more than four times the national average. In Guam’s close-knit community the

sacrifice of military service has affected nearly every family, yet military recruitment rates

continue to exceed that of any state.23 Reflecting on all of this, Governor Calvo recently

observed in his annual State of the Island address that “Many of our sons and daughters serve,

20
‘At the Tip of the Spear’: Guam Residents on U.S.-North Korea Tensions, N.Y. Times, Aug. 10, 2017,
available at https://www.nytimes.com/2017/08/10/us/guam-residents-north-korea.html.
21
Richard Parker, The Real Reason North Korea Is Threatening Guam, Politico, Aug. 15, 2017, available at
https://www.politico.com/magazine/story/2017/08/15/north-korea-guam-nuclear-weapons-215493.
22
Katherine Aguan & Tony Palomo, WWII: From Occupation to Liberation, Guampedia, available at
http://www.guampedia.com/wwii-from-occupation-to-liberation/ (last visited Mar. 6, 2018).
23
Blaine Harden, Guam’s Young, Steeped in History, Line Up to Enlist, Wash. Post, Jan. 27, 2008, available
at http://www.washingtonpost.com/wp-dyn/content/article/2008/01/26/AR2008012602050.html.

7
knowing that they, as American citizens who wear the uniform, cannot vote for a president who

sends them to war.”24

B. Impact of Federal Decisions on Daily Life on Guam

Decisions made by the federal government have an impact on almost every aspect

of daily life on Guam, even as Guam’s residents have no say in the federal laws and policies they

must follow. The military buildup on Guam offers the promise of transforming Guam’s

economy, but also presents risks related to cultural and environmental preservation. Federal

activities have helped bring Guam to where it is today, but unequal treatment often places unique

burdens on Guam’s economy and financial stability.

1. Impact of U.S. Military on Guam

More than any other aspect of Guam’s relationship with the United States, the role

of the U.S. military has had the greatest impact on life on Guam, with both positive and negative

results. Guam’s structural disenfranchisement means it lacks the political tools that provide

other communities greater influence over military decisions that affect their lives. In Guam’s

early history, naval administration greatly expanded Guam’s infrastructure, public health, and

public education. But it also took control of vast expanses of land and ruled by fiat, with limited

responsiveness to local concerns and customs, even prohibiting local children from speaking

Chamorro, the indigenous language of Guam, in school.25 In the aftermath of the destruction of

World War II, U.S. military transports inadvertently introduced the Brown Tree Snake to Guam,

resulting in the extinction or near-extinction of most native birds.26 Extensive environmental

24
Governor Calvo delivers his final State of the Island Address, Kuam News, available at
http://www.kuam.com/story/37491190/2018/02/Tuesday/governor-calvo-delivers-his-final-state-of-the-island-
address (last updated Feb. 20, 2018, 4:40 AM).
25
Pedro Sanchez, Guahan/Guam: The History of Our Island, 95-159 (1998).
26
U.S. Dep’t. of State, Case Study: Brown Tree Snake, available at https://2001-
2009.state.gov/g/oes/ocns/inv/cs/2309.htm (last visited Mar. 13, 2018).

8
pollution at Guam’s Anderson Airforce Base during and after the Vietnam War led the U.S.

Environmental Protection Agency to list it as a superfund site in 1992, with cleanup efforts still

not complete despite potential risks to Guam’s only fresh-water aquifer.27 At the same time, the

U.S. Navy controls Guam’s largest fresh-water reservoir, charging the civilian community for

use of the water.28

The U.S. military presence has created significant economic opportunities for

Guam, although the unpredictable nature of military activity also creates challenging economic

uncertainties. Today, Guam is in the midst of an extensive military buildup as the United States

responds to new global threats.29 The buildup creates important economic benefits for Guam,

but also raises environmental, social, and cultural concerns.30 The scope of the military buildup

has also made it difficult for civilian construction projects to compete within a limited labor pool,

and federal legislation to bring in foreign workers for military projects has not resolved this

concern.31 Guam is not entirely without a voice in the buildup process – Guam residents actively

participate in opportunities to present public comment and Guam Congresswoman Madeleine

27
John I. Borja, 25 Years Later, Andersen Air Force Base Still Cleaning Up Contamination, EPA Says,
Pacific Daily News, Oct. 15, 2017, available at http://www.guampdn.com/story/news/2017/10/15/25-years-later-
andersen-air-force-base-still-cleaning-up-contamination-epa-says/764211001/; see also U.S. Environmental
Protection Agency, Superfund Site: Andersen Air Force Base,
https://cumulis.epa.gov/supercpad/SiteProfiles/index.cfm?fuseaction=second.topics&id=090282.
28
Shawn Raymundo, Navy, GWA Water Deal Could Be Closer Step to Fena, Pacific Daily News, Aug. 24,
2016, available at http://www.guampdn.com/story/news/2016/08/24/navy-gwa-water-deal-could-closer-step-
fena/88441702/.
29
Steve Limtiaco, Key Events in the Guam Military Buildup, Pacific Daily News, Aug. 18, 2017, available at
http://www.guampdn.com/story/news/2017/08/18/key-events-in-guam-military-buildup/578993001/.
30
Catherine Norton, Military Buildup Seen as Boom, Test for Tiny Island of Guam, PBS News Hour, June 9,
2008, available at https://www.pbs.org/newshour/world/military-buildup-seen-boom-test-tiny-island-guam.
31
Steve Limtiaco, Calvo tells industry buildup forum he doesn’t support the buildup, Pacific Daily News,
available at http://www.guampdn.com/story/news/2018/03/07/calvo-tells-industry-buildup-forum-he-doesnt-
support-buildup/402177002/ (last updated Mar. 8, 2018, 10:49 AM); Haidee V. Eugenio, Guam Contractors: H-2B
Visa Denials Forced Congress to Act, Pacific Daily News, available at
http://www.guampdn.com/story/news/2018/01/01/guam-contractors-defense-law-response-uscis-h-2-b-visa-denials-
has-forced-unprecedented-congress-act/991986001/ (last updated Jan. 1, 2018, 4:00 PM).

9
Bordallo serves as the Ranking Member on the House Armed Services Subcommittee on

Readiness. But a lack of voting rights means Guam’s voice does not have the same force as

other communities who enjoy full voting representation in Congress.

Guam’s proud tradition of military service means Guam has one of the highest

concentrations of veterans, with up to one in eight adults having served in the U.S. Armed

Forces.32 This creates a substantial demand for veteran healthcare services. But despite this

large need Guam ranks last when it comes to per capita medical spending by the Department of

Veterans Affairs.33 Veterans suffering from Post-Traumatic Stress Disorder must travel more

than 3,000 miles to Hawaii to receive intensive care. Responding to these issues, Governor

Calvo explained on a 2014 broadcast that “[t]he federal government has not done their part to

assist the very patriotic group of American citizens fighting in so many distant lands, in areas

that have never tasted democracy,” highlighting that “these American citizens of Guam really

have not felt what true democracy is all about.”34

2. Impact of Federal Decisions on Guam’s Fiscal Stability

A range of other federal decisions also affect Guam’s fiscal stability, from federal

tax policy, to federal benefits, to federal mandates, to international agreements that allow

significant migration to Guam from neighboring island nations. Sometimes federal policies are

specifically designed to benefit Guam. Other times Guam suffers negative consequences when

broad national policies fail to account for the impact they will have on Guam. This is yet another

reason why full democratic participation is so critical for residents of Guam.

32
Josh Hicks, Guam: A High Concentration of Veterans, But Rock-Bottom VA Funding, Wash. Post, Oct. 29,
2014, available at https://www.washingtonpost.com/news/federal-eye/wp/2014/10/29/guam-a-high-concentration-
of-veterans-with-little-va-funding/?utm_term=.8ccdc3a21d4e.
33
Id.
34
Id.

10
 Guam is treated unequally in many critical federal benefits programs. Medicaid

payments to Guam are capped, and reimbursement rates are lower than for comparable states,

resulting in significantly less federal support for healthcare on Guam.35 According to Governor

Calvo, over the last seven years this disparity has resulted in approximately $120 million less in

Medicaid spending, contributing to large structural deficits at Guam’s only public hospital that

have placed the well-being of Guam residents at risk.36

Guam local tax rules mirror federal tax law. Thus, recent federal legislation

reforming federal tax laws will result in an approximately $67 million shortfall in local revenue

for Guam this year alone.37 The federally-mandated Earned Income Tax Credit, which is

generally paid for by the federal government, is paid for on Guam using local funds at a cost of

approximately $350 million over the last seven years.38

Federal treaties like the Compacts of Free Association (COFA) with neighboring

island nations, which allow for unrestrained immigration to Guam and other parts of the United

States, also have an outsized impact on Guam’s finances. Between 2005 and 2015 the estimated

annual costs of COFA migrants rose from $33 million to $148 million, even as the federal

government only reimburses Guam around $15 million a year.39

35
U.S. Gov’t Accountability Office, GAO-16-324, Medicaid and CHIP – Increased Funding in U.S.
Territories Merits Improved Program Integrity Efforts, (2016), available at
https://www.gao.gov/assets/680/676438.pdf.
36
Calvo, supra note 24.
37
Clynt Ridgell, GovGuam Shortfall Estimated at $67M; $20M More than Original Estimate, Pacific News
Center, Feb. 13, 2018, available at https://pacificnewscenter.com/govguam-shortfall-estimated-at-67m-20m-more-
than-original-estimate/.
38
Calvo, supra note 24.
39
Jasmine Stole, Compact-Impact Costs for Guam Climb to Estimated $148M, Guam Daily Post, Feb. 6,
2016, available at https://www.postguam.com/news/local/compact-impact-costs-for-guam-climb-to-estimated-
m/article_37374b9c-cbf1-11e5-abe8-af215387168e.html.

11
 Guam’s economy is also affected by federal laws like the Jones Act and cabotage

rules, which restrict foreign carriers from engaging in commerce between two U.S. locations.

For Guam, which has most of its goods either shipped or flown to the island, these restrictions

contribute to the high cost of consumer items. Discussions are ongoing regarding possible

exemptions to the Jones Act and airline cabotage rules.40 These requirements have also

contributed to an anti-competitive environment, raising consumer costs, and leaving Guam

serviced by only one national airline, United Airlines.41

III. U.S. Virgin Islands

“The history of the Virgin Islands is part of American history.”42 Indeed,

“[r]evolutionary idealists such as Alexander Hamilton, who learned his system of banking and

accounting in the merchant house on the island of St. Croix, and the island’s planter, Abraham

Markoe, who was an American Revolutionary financier and designer of the 13 stripes in the

present American flag[,] are Virgin Islanders.”43

Yet, despite these gifts and many others to the United States, Virgin Islanders,

who are citizens of the United States, lack the right to vote for their Commander in Chief and are

denied voting representation in Congress. While the Virgin Islands has now been part of the

United States for a century – since 1917 – the lack of political participation means the people of

40
Louella Losinio, Business, Political Leaders Push for Lifting of Jones Act, Guam Daily Post, Oct. 16, 2017,
available at https://www.postguam.com/news/local/business-political-leaders-push-for-lifting-of-jones-
act/article_fa0b3be2-aff7-11e7-97bd-2f7281249fcc.html.
41
Ben Mutzabaugh, Delta Air Lines will pull out of Guam, ending flights by Jan. 8, USA Today, Sept. 20,
2017, available at https://www.usatoday.com/story/travel/flights/todayinthesky/2017/09/20/delta-air-lines-pull-out-
guam-ending-flights-jan-8/684409001/.
42
Tiphanie Yanique, Americans in a Battered Paradise, N.Y. Times, Sept. 12, 2017, available at
https://www.nytimes.com/2017/09/12/opinion/irma-virgin-islands-damage.html.
43
Congresswoman Plaskett’s Transfer Day Centennial Ceremony Remarks (Mar. 31, 2017), available at
https://plaskett.house.gov/news/documentsingle.aspx?DocumentID=182.

12
the Virgin Islands enjoy a type of second-class citizenship, even as the federal government is

responsible for making the decisions that govern their daily lives.

In her 2017 Transfer Day Centennial Ceremonial Remarks, the Virgin Islands’

non-voting Delegate to Congress, Congresswoman Stacey Plaskett, marked the 100 years that the

Virgin Islands has been part of the United States, noting the “mixed feelings” of Virgin Islanders

at the centennial given their treatment by the United States and asking the following: “What

document will give us full inclusion as U.S. citizens no matter where we reside? When will the

benefits of full citizenship extend to meet our now century-old willingness to take on the

responsibility of that citizenship?”44 As Congresswomen Plaskett said, “We must all do our part

to answer these very relevant and important questions.”45

Finding answers to these questions has become all the more critical following the

destruction brought by Hurricanes Irma and Maria last year. The stakes are extraordinarily high

as the Virgin Islands faces the daunting challenge of recovering and rebuilding from the

devastating aftermath of the storms. As Bloomberg Philanthropies reports, “[u]p to 60 percent of

homes and 400 boats were destroyed. St. Thomas and St. Croix took harsh blows, but it was St.

John that suffered the most infrastructure damage overall; nearly every home on the island

suffered damage and for more than six weeks there was no power at all.”46

This vast devastation only underscores the degree to which the federal

government’s decisions affect the daily lives of Virgin Islanders. As the Washington Post has

reported, “[i]f Congress and the White House fail to deliver a massive infusion of cash to the

islands, analysts warn, this Caribbean paradise could quickly unravel into a permanent decline

44
Id.
45
Id.
46
U.S. Virgin Islands, Bloomberg Philanthropies, available at https://www.bloomberg.org/program/founders-
projects/bringing-assistance-u-s-virgin-islands-hurricanes-irma-maria/ (last visited Mar. 13, 2018) (emphasis added).

13
that would send thousands of economic refugees to the mainland.”47 In short, although the U.S.

citizens who live in the Virgin Islands lack voting representation in Congress and cannot vote for

president, they must depend on Congress and the President for their very livelihood.

A. History of U.S. Virgin Islands’ Relationship with the United States

In 1917, the United States purchased the Virgin Islands, which were known as the

Danish West Indies, from Denmark for $25 million dollars.48 The Virgin Islands are the start of

the Lesser Antilles island chain in the Caribbean and are located about 50 miles east of Puerto

Rico. The purchase consisted of three main islands, St. Croix, St. Thomas, and St. John, and

approximately 50 islets, and was motivated primarily by strategic concerns in order to “assure

tranquility in the Caribbean Ocean.”49 In particular, the Virgin Islands were intended to serve as

a naval base for submarine warfare against Germany in World War I and to help protect the

Panama Canal and other trade routes.50

At the outset, Congress established a temporary government for the Virgin Islands

in 1917, with a Naval Governor appointed by the President with the advice and consent of the

Senate.51 Residents of the Virgin Islands were not recognized as citizens until ten years later, in

47
Tim Craig, Shredded roofs, shattered lives, Wash. Post, Feb. 6, 2018, available at
https://www.washingtonpost.com/news/national/wp/2018/02/06/feature/as-tourism-returns-hurricane-recovery-in-
the-virgin-islands-is-leaving-some-residents-behind/?utm_term=.f318c42d2ac4.
48
See Convention Between the United States and Denmark (Cession of the Danish West Indies), Denmark-
U.S., Aug. 14, 1916, T.S. No. 629, available at
https://www.doi.gov/sites/doi.gov/files/migrated/oia/about/upload/vitreaty.pdf; Pub. L. No. 380, 39 Stat. 1132
(1917), available at http://www.legisworks.org/congress/64/publaw-389.pdf.
49
U.S. Virgin Island Quarter, United States Mint, available at https://www.usmint.gov/coins/coin-medal-
programs/dc-and-us-territories/us-virgin-islands (last visited Mar. 13, 2018); U.S. Virgin Islands, U.S. Dep’t of the
Interior, Office of Insular Affairs, available at https://www.doi.gov/oia/islands/virgin-islands (last visited Mar. 13,
2018).
50
Congresswoman Plaskett’s Remarks, supra note 43.
51
Pub. L. No. 380, supra note 48.

14
1927. It took until 1931 for federal authority over the Virgin Islands to be transferred from the

U.S. Navy to civilian control under the U.S. Department of the Interior.52

Five years later, the Organic Act of 1936 established the government of the Virgin

Islands, dividing the Virgin Islands into municipalities and setting forth the legislative,

executive, and judicial branches.53 Nearly twenty years after that, the 1954 Revised Organic Act

set forth a “more elaborate governmental structure,” setting forth a Bill of Rights, and

establishing a “Legislature of the Virgin Islands.”54 Federal law did not permit an elected

Governor until 1968.55

Today, the total population of the Virgin Islands is estimated at 107,268.56 While

Virgin Islanders continue to make many contributions to the United States, they remain excluded

from full citizenship through their lack of voting representation in the federal government. This

disenfranchisement is particularly stark when one considers the Virgin Islands’ proud tradition of

military service. Congresswoman Plaskett explained last year that “Virgin Islanders giv[e] the

ultimate sacrifice in military conflicts at three times the national average,” yet “[t]hese brave

service members fight for a commander in chief they do not elect and protect the ideals of a

nation that are not fully extended to them and their families.”57

52
U.S. Dep’t of the Interior, supra note 49.
53
1936 Organic Act of the United States, Pub. L. No. 749, 49 Stat. 1807 (1936), available at
http://www.legisworks.org/congress/74/publaw-749.pdf.
54
U.S. Dep’t of the Interior, supra note 49; see also Revised Organic Act of the Virgin Islands, Pub. L. No.
517, 68 Stat. 497 (1954), available at https://www.gpo.gov/fdsys/pkg/STATUTE-68/pdf/STATUTE-68-
Pg497.pdf#page=1.
55
48 U.S.C. § 1591 (2012).
56
CIA, World Factbook: U.S. Virgin Islands, available at https://www.cia.gov/library/publications/the-world-
factbook/geos/vq.html (expand “People and Society” sub-heading) (last updated Feb. 22, 2018).
57
Stacey Plaskett, The Ironic State of Freedom Without Democracy, The Hill, July 11, 2017, available at
http://thehill.com/blogs/congress-blog/politics/341403-the-ironic-state-of-freedom-without-democracy.

15
 The Virgin Islands has now been a part of the United States for more than a

century. As Governor Mapp explained in his 2018 State of the Territory Address, “American

citizens living in the Virgin Islands must be treated as American citizens living anywhere.”58

B. Federal Decisions Impact the Daily Life of U.S. Virgin Islands’ Residents

Given the expansive powers the federal government has over U.S. territories,

Virgin Islanders acutely feel the impact that federal decisions have on their daily lives, even as

they lack voting representation in Congress and cannot vote for President. This has been

particularly true following the devastation of Hurricanes Irma and Maria. Federal decisions

related to tax policy, federal benefits, and other federal spending programs have also had a

profound impact on life in the Virgin Islands. While the federal government has often been a

force for good in the Virgin Islands, too often the Virgin Islands face unequal treatment

compared to other citizens.

1. Federal Government’s Role in Hurricane Recovery

The devastation of the recent hurricanes in the Virgin Islands has underscored the

importance of the federal government to the daily lives of the Virgin Islanders. Virgin Islanders

are facing numerous serious challenges, including federal aid limits, job loss, and a health care

and education system in crisis.59 The federal government has played a critical role in assisting

with disaster recovery and rebuilding in the Virgin Islands. But at times Virgin Islanders are left

58
Kenneth E. Mapp, Governor U.S. Virgin Islands, 2018 State of the Territory Address, (Jan. 22, 2018),
available at https://drive.google.com/file/d/1_-zu9pWaWkKVTjPoSNcMGn85x6n0JRlJ/view.
59
Craig, supra note 47; Greg Allen, In the U.S. Virgin Islands, Health Care Remains in a Critical State, NPR
News, Feb. 4, 2018, available at https://www.npr.org/2018/02/04/582256476/in-the-u-s-virgin-islands-health-care-
remains-in-a-critical-state; Emergency Response and Recovery: Central Takeaways from the Unprecedented 2017
Hurricane Season: Hearing Before the H. Transp. & Infrastructure Comm., 115th Cong. (2017) (testimony of
Stacey Plaskett, Congresswoman, U.S. Virgin Islands), available at
https://plaskett.house.gov/news/documentsingle.aspx?DocumentID=243 (last updated Nov. 2, 2017).

16
feeling that they are not being treated the same as other countrymen recovering from similar

disasters.

With respect to health care, the Virgin Islands’ two hospitals have been severely

damaged by the recent hurricanes. As a Virgin Islands doctor explained shortly after the storms,

“I have two essentially condemned hospitals . . . . Right now we don’t have operating rooms I

feel safe operating in and doctors are trying to find other places to see their patients because their

buildings still don’t have power.”60 The healthcare crisis is so severe that many people are still

being transported off-island in order to seek care.61

This healthcare crisis is not from the hurricanes alone, however. As

Congresswoman Plaskett explained at a recent congressional hearing, “[o]ur needs are great, and

it’s partly a result of issues that have been long standing. Our hospitals have been chronically

underfunded for decades, and our Medicaid is block granted at an amount that has no

relationship to local needs. Our match has been limited to an arbitrarily low 55% by Congress,

that of the wealthiest states.”62 Governor Mapp explained at another congressional hearing that

“[t]hese shortfalls in federal healthcare funding have adversely affected the quality of healthcare

in the Islands and have required our Government to borrow money to cover a significant portion

of the gaps.”63

60
Brianna Sacks, This is What it is Like For People Trying to Get Health Care on the Devastated US Virgin
Islands, BuzzFeed News, Sept. 28, 2017, available at https://www.buzzfeed.com/briannasacks/us-virgin-islands-
hospitals?utm_term=.fjoPG82zo#.kaKErR5w6.
61
Id; see also Allen, supra note 59.
62
Plaskett Testimony, supra note 59.
63
Hearing on the Need for Transparent Financial Accountability in Territories’ Disaster Recovery Efforts
Before the H. Comm. on Natural Resources, 115th Cong. (2017) (testimony of Kenneth E. Mapp, Governor, U.S.
Virgin Islands) (Nov. 14, 2017), available at http://docs.house.gov/meetings/II/II00/20171114/106587/HHRG-115-
II00-Wstate-MappK-20171114.pdf.

17
 Schools, too, have been devastated by the hurricanes, with eight schools destroyed

in a system that was already suffering “woefully deficient” facilities.64 This is tied directly to

federal decisions where “Congress has not been willing to grant the Dept. of Interior requested

funding to support maintenance levels for one school.”65 Even the reliability of mail service to

the Virgin Islands remains in flux nearly six months after the hurricanes hit.66

These setbacks invite closer scrutiny of the continuing denial of the rights of

Virgin Islanders to fully participate in the national democratic process. As of November 2017,

more than 33,000 individuals and families had applied for assistance from the Federal

Emergency Agency (FEMA).67 And, it will take a staggering $7.5 billion of federal support in

order to rebuild.68 Thus, more than ever there is a sense of the importance of federal-decision

making on the livelihoods of Virgin Islanders.

2. Impact of Federal Decisions on the Virgin Islands Economy and

Finances

As Governor Mapp explained in congressional testimony last year, “[f]ederal tax

policy plays a critical role in creating the investment climate to generate sustainable economic

growth in the Virgin Islands and help the Territory create jobs and improve its long-term fiscal

health.”69 Governor Mapp exhorted Congress to “consider the unique status and circumstances

of U.S. Territories” as it moved forward with tax reform.70

64
Plaskett Testimony, supra note 59.
65
Id.
66
Letter from Members of Congress to Postmaster General, Feb. 12, 2018, available at
https://plaskett.house.gov/uploadedfiles/02.12.18_letter_to_postmaster_general.pdf.
67
Richard Pérez-Peña, After Irma and Maria: How 3 Spots on the U.S. Virgin Islands Are Faring, N.Y.
Times, Nov. 10, 2017, available at https://www.nytimes.com/2017/11/10/us/virgin-islands-hurricanes.html.
68
Craig, supra note 47.
69
Mapp Testimony, supra note 63.
70
Id.

18
 As is too often the case, the federal tax legislation that ended up passing last year

failed to adequately consider or address its impact on the Virgin Islands and other U.S.

territories. Congresswoman Plaskett recently explained that “the new tax laws are likely to have

the unintended consequence of providing a disincentive to companies operating in the Virgin

Islands due to the foreign tax treatment of the USVI.”71 In addition, because federal law

provides that the Virgin Island local tax code mirrors the federal tax code, “there will be lost

revenue to the [Virgin Islands’] General Fund due to reduction [of] individual and corporate tax

brackets,” with “tax revenue losses ranging from a hundred million to hundreds of millions of

dollars each tax year.”72

More broadly, federal mandates like the Earned Income Tax Credit cost the

Virgin Islands approximately $21 million a year, with bi-partisan proposals for the federal

government to reimburse these expenditures going nowhere.73 The outsized impact federal tax

policy has on economic development and government revenue in the Virgin Islands highlights

the challenges Virgin Islanders face as a result of their structural disenfranchisement.

IV. Northern Mariana Islands

Like their brethren in the other territories, the citizens of the Northern Mariana

Islands are passionate, loyal U.S. citizens. Since World War II, the islands have hewn ever

closer to the United States, serving in its military, political parties, and every aspect of national

life – save one. Citizens of the Northern Mariana Islands are also citizens of the United States,

71
Stacey Plaskett, The Virgin Islands Must Be Sober-Minded As We Execute Our Rebuilding, V.I.
Consortium, Feb. 20, 2018, available at http://viconsortium.com/opinion/the-virgin-islands-must-be-sober-minded-
as-we-execute-our-rebuilding/.
72
Id.
73
Mapp Address, supra note 58

19
but they cannot vote in presidential elections, they do not have a vote in matters of federal

policy, and they are subject to the whims of officials thousands of miles from home.

A. History of the Northern Mariana Islands Relationship with the United States

The close relationship between the United States and the Northern Mariana

Islands dates to the close of World War II, when it was first administered by the United States as

part of the United Nations Trust Territory of the Pacific Islands. The Northern Mariana Islands

consists of three main islands, Saipan, Tinian, and Rota, along with many smaller islands that are

mostly uninhabited – its southernmost point is only 56 miles from Guam.

In 1975, the Northern Mariana Islands was officially created as its own separate

political jurisdiction and bound to the United States under the Covenant to Establish a

Commonwealth of the Northern Mariana Islands in Political Union with the United States of

America (the “Covenant”). The Covenant granted the United States “complete responsibility for

and authority with respect to matters relating to foreign affairs and defense affecting the

Northern Mariana Islands,” and gave the United States the power to enact legislation governing

daily life in the Northern Mariana Islands.74 In exchange, the Covenant conveyed U.S.

citizenship upon all persons thereafter born in the Northern Mariana Islands (along with most

living in the Northern Mariana Islands at the time of ratification).

But the rights of citizens living in the Northern Mariana Islands are not the same

as other U.S. citizens. And when it comes to voting rights, not even every resident of the

Northern Mariana Islands is treated the same. Most citizens residing in the Northern Mariana

Islands are unable to vote in presidential elections and lack voting representation in Congress.

However, under federal overseas voting laws, former residents of states living in Northern
74
Pub L. No. 94-241, § 1, 90 Stat. 263 (1976), Covenant to Establish a Commonwealth of the Northern
Mariana Islands in Political Union with the United States of America, art. I, available at
https://www.law.cornell.edu/uscode/pdf/uscode48/lii_usc_TI_48_CH_17_SC_I_SE_1801.pdf.

20
Mariana Islands are able to maintain absentee voting rights in their former state of residence,

permitting them to continue to vote for President and for federal representatives in their former

state.75 Thus, most residents of the Northern Mariana Islands continue to be subject to federal

laws and regulations while their participation in making those laws is limited to a non-voting

Delegate to Congress.

As U.S. citizens, the people of the Northern Mariana Islands have demonstrated

steadfast loyalty and dedication to the United States. Islanders are well aware of the strategic

importance the Northern Mariana Islands possesses. Sitting on the far western edge of the

United States, the Northern Mariana Islands occupies a critical position for the country’s military

and economic interests in the Pacific. Islanders embrace this responsibility – the Northern

Mariana Islands has one of the highest rates of military service in the United States, with a

casualty rate in Iraq and Afghanistan more than three times the national average.76 The Northern

Mariana Islands regularly hosts more than 500,000 international visitors, both for business and

pleasure.77

Yet despite all this, residents of the Northern Mariana Islands lack a vote in

federal affairs – matters that have a tremendous impact locally.

B. U.S. Military Expansion in the Northern Mariana Islands

The Northern Mariana Islands location in the Pacific on the doorstep to Asia gives

it particular relevance in trans-Pacific relations. This strategic consideration has recently gained

75
Uniformed and Overseas Citizens Absentee Voting Act, 52 U.S.C §§ 20301-20311 (2012). Recent actions
by the US Department of Justice have proposed curtailing even this meager access to the ballot. Erwin Encinares,
Every Citizen Has Right to Vote, Saipan Tribune, Oct. 10, 2017, available at
https://www.saipantribune.com/index.php/every-citizen-right-vote.
76
Joel D. Pinaroc, CNMI Remembers its Fallen Heroes, Saipan Tribune, May 26, 2015, available at
https://www.saipantribune.com/index.php/cnmi-remembers-its-fallen-heroes/.
77
Bea Cabrera, TripAdvisor: NMI Tourism Growth ‘Dramatic’, Saipan Tribune, Oct. 25, 2017, available at
https://www.saipantribune.com/index.php/tripadvisor-nmi-tourism-growth-dramatic/.

21
increased significance, as rising tensions between the United States and North Korea have

highlighted the critical position the Northern Mariana Islands and other Pacific territories

occupy. As a consequence, there has been increased activity by the United States military.

Recently, the US military has proposed conducting extensive practice bombing

and war games on the Northern Mariana Islands of Pagan and Tinian, as well as creating

permanent facilities on the islands. These activities would inflict significant costs –

environmental, economic, and social – on the Northern Mariana Islands’ citizens. Former

governor Eloy Inos described the proposed plan as “an existential threat to our tourism-driven

economy, our fragile ecosystem, our cultural resources and, indeed, our way of life.”78

Tinian, with a population of approximately 3,100 people, is slated for a massive

influx of military personnel and activity, including a military airfield and up to 45 weeks per year

of live-fire military action.79 These plans would have a dramatic impact on the island’s

population. The U.S. Environmental Protection Agency (“EPA”) has warned that expanding

operations on the island could pollute Tinian’s only source of water.80 The expansion could also

result in the permanent loss of 15% of the island’s prime farmland soils and restrict access to a

number of important cultural and tourist sites.81 This includes damage to more than 20 acres of

coral reef.82

78
Dennis B. Chan, Navy Directs Second EIS Review, Saipan Tribune, Oct. 5, 2015, available at
http://www.saipantribune.com/index.php/navy-directs-second-eis-review/.
79
Anita Hofschneider, Tinian: ‘We Believed in America’, Honolulu Civil Beat, Dec. 14, 2016, available at
http://www.civilbeat.org/2016/12/tinian-we-believed-in-america/.
80
Id.
81
Associated Press, Pacific Natives Sue U.S. Navy Over Live Fire Training Plans, CBS News, July 27, 2016,
available at https://www.cbsnews.com/news/pacific-natives-northern-mariana-islands-sue-us-navy-live-fire/.
82
Anita Hofschneider, Can These Islands Survive America’s Military Pivot to Asia?, Honolulu Civil Beat,
Dec. 12, 2016, available at http://www.civilbeat.org/2016/12/can-these-islands-survive-americas-military-pivot-to-
asia/.

22
 Under the military’s proposal, Pagan’s northern half would be converted to an

active bombing range.83 Originally settled in the 1300s, Pagan is an ancient home of the

Chamorro people, indigenous inhabitants of the Northern Mariana Islands.84 Although volcanic

activity forced an evacuation of the island in 1982, many families still consider it home and hope

to return.85 Local political leaders, including Mayor Jerome Aldan and Governor Ralph Torres

support their efforts and have grave concerns over the proposed military expansion.86 Beyond

the human cost, the EPA estimates the bombing and other training could destroy 121 acres of

marine habitat.87

Not surprisingly, these plans have been fiercely debated and contested at a local

level. But the Northern Mariana Islands’ lack of political representation in Washington limits

the capacity of the people of the Northern Mariana Islands to shape the fate of their islands.

While no one disputes the need to adequately provide for national defense, citizens of the

Northern Mariana Islands have a diminished voice in the role their own islands will play. First,

they have no say in who is elected President – who, as Commander in Chief, has direct control

over military decisions. Second, while Congress also plays a critical role in directing military

spending and decisions to go to war, the Northern Mariana Islands’ non-voting Delegate has

83
The military has no current property on Pagan, unlike Tinian. However, under the Covenant, Congress
could vote to claim the land via eminent domain – a vote in which the NMI citizens would have no voice.
Covenant, supra note 69, art. 8.
84
James Cave, The Pentagon Wants to Bomb the Hell Out of This Tiny Pacific Island, Huffington Post, May
29, 2015, available at https://www.huffingtonpost.com/2015/05/29/pagan-island-marines-military_n_7342168.html.
85
Associated Press, supra note 81.
86
Cherrie Anne E. Villahermosa, DPL Identifies 74 Lots for Agricultural Homesteading on Pagan, Marianas
Variety, Sept. 13, 2016, available at http://www.mvariety.com/cnmi/cnmi-news/local/89144-dpl-identifies-74-lots-
for-agricultural-homesteading-on-pagan.
87
Letter from the U.S. Environmental Protection Agency to Craig B. Whelden, Executive Director, U.S.
Marine Corps Forces Pacific, (Sept. 29, 2015), available at https://www.documentcloud.org/documents/3235232-
EPA-Comments-on-CJMT-DEIS.html.

23
limited participation in Congress, even though his constituents are greatly affected by whatever

decisions Congress makes in this area.

C. Impact of Federal Decisions on Daily Life on the Northern Mariana Islands

Citizens living in the Northern Mariana Islands have no control over their own tax

code. Federal law controls all the territories’ authority to impose local taxes. The Northern

Mariana Islands, along with Guam and the U.S. Virgin Islands, may not implement its own tax

regime – rather it is required to “mirror” the U.S. Internal Revenue Code (“IRC”) for local

purposes. This means any changes to the IRC requires duplicate changes in the Northern

Mariana Islands’ local tax code, regardless of what effects that would have on the Northern

Mariana Islands’ economy or local revenue. Despite the dramatic changes such decisions can

make, the Northern Mariana Islands has no seat at the table when it comes to voting on the final

form of federal tax legislation.

The Northern Mariana Islands also suffers from chronic underfunding of federal

healthcare and social welfare funding. As an example, consider Medicaid, the primary federal

program that delivers healthcare to U.S. citizens living in or near poverty. The 50 states and the

District of Columbia receive open-ended funding from the federal government with no caps on

total allotments.88 By contrast, the Northern Mariana Islands, like the other territories, receives a

capped amount every year.89 Once that cap is reached, which can often happen before October

of each year, the federal government no longer covers any of the costs.90 Additionally, the

federal government customizes each state’s reimbursement rate for each state based on the

state’s per capita income – states with lower income levels receive greater subsidies, ranging

88
Center on Budget and Policy Priorities, Introduction to Medicaid, available at
https://www.cbpp.org/sites/default/files/atoms/files/policybasics-medicaid_0.pdf (last updated Aug. 16, 2016).
89
U.S. Gov’t Accountability Office, supra note 35.
90
Id.

24
from 50% to almost 75% in 2017.91 In the territories, which are generally less wealthy than the

vast majority of the states, the rate is set at 55%.92 This disparity results in significantly lower

per capita spending on healthcare in the territories.93

The Northern Mariana Islands’ economy already faces instability due to federal

mandates and other decisions impacting island residents. The denial of federal funding that is

received in other parts of the United States only contributes to the economic issues facing

residents of the Northern Mariana Islands.

V. Conclusion

In light of the continued democratic deficit facing the nearly 4 million residents of

U.S. territories, amici request that the Commission rule in favor of Petitioners in Rosselló v.

United States.

91
Kaiser Family Foundation, Federal Medical Assistance Percentage (FMAP) for Medicaid and Multiplier,
available at https://www.kff.org/medicaid/state-indicator/federal-matching-rate-and-
multiplier/?currentTimeframe=1&sortModel=%7B%22colId%22:%22FMAP%20Percentage%22,%22sort%22:%22
desc%22%7D (last visited Mar. 13, 2018).
92
Gov’t Accountability Off., supra note 35.
93
Id.

25
Appendix A
List of Amicus Curiae
The Hon. Madeleine Z. Bordallo, Member of Congress representing Guam
The Hon. Stacey Plaskett, Member of Congress representing U.S. Virgin Islands
The Hon. Gregorio Kilili Sablan, Member of Congress representing the Northern Mariana
Islands
The Hon. Eddie Baza Calvo, Governor of Guam
The Hon. Carl T.C. Gutierrez, former Governor of Guam
The Hon. John de Jongh, Jr., former Governor of the U.S. Virgin Islands
The Hon. Charles W. Turnbull, former Governor of the U.S. Virgin Islands
The Hon. Donna M. Christian-Christensen, former Congresswoman representing the U.S. Virgin
Islands

A-1