By Chuck Pishko
Special to St. John Tradewinds
After 50 years of transfer negotiations between the United States and Denmark, one would assume that the Treaty of August 4, 1916, would be a finely-polished document covering every possible contingency.
Not so — the most critical issue of citizenship was left incomplete and subject to misinterpretation and court interpretation.
A treaty provision granted “citizenship in the United States” which Virgin Islanders assumed meant U.S. citizenship. The V.I. contacts in Washington, including the Congress and the local Naval Administration all appeared to share this assumption.
Examples abound to support this.
In 1918 the U.S. Labor Department announced that wartime labor requirements would be met by Puerto Rican and V.I. American citizens. Congress extended the jurisdiction of the local courts to all cases where the U.S. “or any citizen thereof” may be a party.
If they meant to exclude Virgin Islanders, the courts would have remained empty. The Naval Administration Codes provided that a juror had to be a citizen where he lived or a U.S. citizen.
It wasn’t until March 9, 1920, that a definitive statement was made by a U.S. official, Acting Secretary Frank L. Polk, stating that the State Department was issuing passports “to inhabitants of the Virgin Islands entitled to the protection of the United States… They have American nationality and are entitled to the protection of the government, but have not the civil and political status of citizens of the United States.”
Rationalization Defies Logic
State’s rationalization of this denial defies logic revolving around the treaty’s use of the word citizenship “in” rather than “of” which meant all the difference. Islanders felt that since they were acquired by purchase or transfer, and not the spoils of war, they should have full citizenship (Boyer pp136-8).
It’s important to note the original organic act, the Northwest Ordinance of 1787, had three stages of political development whereby colonies or unincorporated territories would become states. The periods were strong executive control followed by representative government and eventual statehood.
To have people ruled by the U.S. without their eventual full inclusion in the union would fly in the face of the principles won in the American Revolution. The states of Ohio, Indiana, Illinois, Michigan, and Wisconsin were established under this original organic act.
Congress generally fostered self-government, guaranteed fundamental constitutional rights, and statehood. Indeed the Constitution was following the flag.
The Treaty of Paris of 1898 ceded the Philippines, Guam and Puerto Rico to the U.S. Unfortunately these territories were populated by people of alien cultures, languages, and political heritages. Now for the first time in U.S. expansionist history no promise was made of statehood or citizenship.
Congress Controls Status
The treaty held that political status and citizenship would be determined by Congress. The Supreme Court in the case of Downes v. Bidwell (182US244, 1901) developed a new doctrine of “incorporation” which denies the application of the Constitution to the non-contiguous territories: a complete reversal and contrary to the Declaration of Independence and the Northwest Ordinance of 1787 (Boyer p195). This was the political and legal climate that the USVI entered.
From the beginning of negotiations in the 1860s the overwhelming value of the islands were military in nature. The coaling station and harbor provided a berth for damaged ships and a secure place for captured Confederate ships (Dookhan p248). The building of the Panama Canal and the need to track European ships only increased the value over time.
While the Naval Administration accomplished important health and educational programs, it failed to foster and grant those political and democratic freedoms necessary to actuate their full development. The administration quickly allied itself with the existing Danish government and Congress kept the Danish Colonial Law of 1906 in effect.
Secretary of State Robert Lansing who negotiated the 1916 Transfer observed the political incapacities and incompetence of the American Blacks from his dealings with Haiti (Langley p72). Also the Navy and Marine Corps recently blooded in Haiti brought a plethora of their Southern prejudice with them. This temporary government lasted in principle for some 20 years, an inauspicious beginning.
V.I. patriots Rothchild Francis, Hamilton Jackson, Casper Holstein and Ashley Totten petitioned Congress for citizenship. Congress was eventually moved to grant United States citizenship to most Virgin Islanders in 1927, ten years after the transfer. This grant of citizenship was announced with great fanfare on the occasion of the inauguration of Captain Waldo Evans as the seventh Navy governor in ten years.
Subsequently, a 1932 Act of Congress granted American citizenship to all natives of the Virgin Islands, regardless of their place of residence on January 17, 1917.
Organic Act Was Second Step
The next step towards citizenship and self-government was the passage of the Organic Act. The Organic Act of 1936 called for two Municipal Councils and a Legislative Assembly to be made up of the two Councils and convened by the Governor at least once a year to enact legislation applicable to the whole V.I.
All property and income qualifications were abolished. Women were included in the franchise. However voters had to be able to read and write English language. Thus begins representative government and with it comes political parties.
The “Progressive Guide” founded in 1937 was the first cohesive and dynamic political party in the V.I. In 1946 a party named the Liberal Party, led by Earle Benito Ottley, broke away and in 1963 its members became Democrats. Ottley gained enough power to rule the government and serves as a sterling example of proper political power today.
In an address to the St. John Historical Society on November 14, 2006, by Senator-Elect Basil Ottley, we learned of Basil Ottley’s deep respect for his Uncle Earle’s political acumen. He said that it was time to drop the fried chicken, forget about Yankee political glitz and get back to basics.
Elections and Referendums
The Organic Act of 1936 was followed by elections to the Municipal Councils. In 1948 the first referendum on self-rule was held in which voters wanted to elect a resident commissioner to Congress.
The Revised Organic Act of 1954 extended the franchise to our Spanish speaking citizens. It also established a unicameral legislature for the territory. However nothing accomplished provides us with full citizenship.
In 1958 3,000 Virgin Islanders marched on Government House demanding the removal of an appointed governor and declaring readiness for self-government.
In 1965 the First Constitutional Convention was held and the first draft Constitution was written. It was never adopted but several provisions were enacted by Congress.
Congress chose to address the matter of more self-government by dealing with specific legislation. For example, the Elective Governor Act of 1968 led us further down the road. It also contained provisions relating to the elimination of the Presidential veto of V.I. legislation and selective Constitutional safeguards: the writ of habeas corpus, forbidding bills of attainder and ex post facto laws (Boyer p275). Incremental rather than radical change appears to be the law of the land.
Witness that the Second Constitutional Convention Draft included the Congressional acts passed as a result of the First. However the Second failed passing by a majority of the voters in the general election of 1972. Again Federal legislation was enacted to facilitate the process.
A Third Constitutional Convention (1978) included a system of local government. The turnout in March 1979 was low (38 percent) and 56 percent of those voters rejected it.
The Fourth convention in 1980 contained a controversial definition of a Virgin Islander; native-born or descended from one or more native-born residents. Also U.S. citizen residents of longer than one year were Virgin Island Citizens.
At any rate it was defeated in 1981 by a margin of three to two. A further referendum on status in 1993 failed to attract a viable turnout (27 percent). In the meantime the V.I. Supreme Court has been established and a Fifth Constitutional Convention will be convened.
The solution lies in the Constitutional Conven-tion. I was pleased to hear Senator Shawn-Michael Malone’s TV political spot on the need for full citizenship which ran the day before Election Day, 2006.
Hopefully it’s a sign of a serious attempt at a Constitution. We should all be embarrassed over the United States annually reporting USVI as a Non-Self-Governing Territory to the United Nations. We need to determine our political status once and for all.
At a forum on the Constitutional Convention on February 23, 2007, Judge Thomas Moore pointed out the difference between the United States territories and the rest of the states. According to federal law, an unincorporated territory is pertinent and belonging to the United States, but it is not part of the United States. Congress has the jurisdiction to make many decisions related to the territory’s governance, and it has only the sovereignty that the federal government allows it.
Lawrence Boschulte of St. Thomas pointed out in a Daily News editorial on March 6, 2007, that there is a big difference between being unincorporated and incorporated. The article states that incorporation is regarded as a permanent condition.
Once incorporated, an incorporated territory can no longer be de-incorporated; that is, it can never be excluded from the jurisdiction of the United State Constitution.
Under our current status an unincorporated territory is an area under U.S. jurisdiction to which only certain “natural” protections (e.g. freedom of speech, due process) of the Constitution are provided, as well as any specific parts Congress has added apply. In the history of the U.S. an organized territory is a territory for which the U.S. Congress has enacted an Organic Act.
The provisions of an Organic Act typically include the establishment of a bill of rights for the territory, as well as the framework of a tripartite government (executive, judicial, and legislative branches) that mean such a territory is said to be organized.
An organized territory differs from a state in that although an Organic Act allows for limited self-government, if a territory has no constitution, the ultimate authority over the territory is not held by the territorial government, but rather by the U.S. Congress.
The major remaining issues are participation in the national political system and territorial control over territorial affairs. The territory of the Virgin Islands does not fully participate as a entity in Congress because it has only a single nonvoting representative.
Citizens of the Virgin Islands are not granted the right to vote for the President and Vice President, Senators or voting members of Congress and therefore are not represented in the national political system. This needs to be changed.
The right of self-government is supreme. Once Virgin Islanders create a territorial constitution, Congress after initial approval, should not have the power to override its provisions.
The 10th Amendment restricts federal government intrusion upon the reserved powers of the states. The adopted Constitution of the Virgin Islands would restrict similar national intrusion upon the powers exercised under its provisions.