Guam tribal lands: hold ’em or fold ’em?

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*Note to readers, this article is a news analysis of the ongoing political debate over whether Guam should seek tribal status for Chamorros and Chamorro Land Trust lands. The two most publicly outspoken politicians on either side of the issue are Sen. Michael F.Q. San Nicolas (D) and former public auditor Doris Flores Brooks (R). Each is running for Guam’s lone nonvoting delegate’s seat in the U.S. House of Representatives, about to be vacated by Democratic Congresswoman Madeleine Z. Bordallo after serving eight successive terms in that office. This article reflects the views of the Pacific News Center editorial staff; it does not reflect the views of Sorensen Media Group or its owners.

Guam – Sen. Mike San Nicolas (D) walked into another round of he-said, she-said with Doris Brooks’s counter-assertions when he showed up for his “Coffee with the Candidates” interview under the purview of PNC sister company Red Dragon Productions on Thursday morning.

The bone of contention is whether or not Guam’s next delegate to Congress should seek tribal status for Guam Chamorros in effort to establish clear authority over Chamorro Land Trust lands. In the long wake of Resolution No. 255-34, which San Nicolas introduced in the Guam Legislature just over a year ago, he still says tribal status would protect Chamorro Land Trust lands from subjectivity to onerous federal nondiscrimination requirements without giving those designated properties back to the feds. But former longtime public auditor Brooks says tribal status would cede indigenous land control into an autonomy-eroding federal trusteeship in an unincorporated territory that has already long suffered considerably less assistive access and fewer federal privileges than the states of the union.

“The only constitutional protection for Native people is tribal recognition,” San Nicolas told PNC.

His opponent begs to differ. “As far as tribal lands, that is a concept that has been rejected,” said Brooks. ““Why? Because it would take control of land under the federal government.”

Brooks is Guam’s Republican candidate for Congress. She’s running against Democratic nominee San Nicolas heading into the weeks-away Nov. 6 general election. Brooks ran unopposed in the GOP primary. San Nicolas defeated incumbent Democrat Madeleine Bordallo, who’s now winding down 16 years of consecutive congressional service after eight unbroken elections since 2002. Although Bordallo acknowledged San Nicolas’s tribal recognition resolution in a letter to Gov. Calvo and then-Speaker BJ Cruz in Oct. 2017, she warned against the federalizing of Chamorro Land Trust Corporation real estate that would be entailed under tribal designation.

Resolution No. 255-34 (COR) is a request that Congresswoman Bordallo introduce a bill to Congress to grant indigenous Guam Chamorros “federal recognition as an Indian tribe under 25 U.S.C.” Chapter 1 of Title 25 of the United States Code establishes the Bureau of Indian Affairs as the governing body over tribal lands held in trust by the federal government—which has final authority.

So while San Nicolas continues pushing to declare Chamorros a tribe, Brooks isn’t having it. “We want local control, not federal control,” she said in a separate interview with PNC on Thursday. “Native lands under the tribal designation are in trust held by the federal government.”

Brooks says the gradual return of Guam lands from federal to local control has already taken too many decades for the territory to even think about pursuing a tribal status that would put indigenous homelands back under federal control.

Not after the federal government condemned thousands of acres of island terrain for its own use and reserve following WWII, says Brooks. “No! The Native Hawaiians rejected that concept, the CNMI rejected that concept—I reject that concept, because we want local control.”

But San Nicolas’s asseveration stands.

Congressional approval, constitutional protection

“If you read the Hawaii Homestead Act, they’re not going to have constitutional protection,” San Nicolas said. That’s an act of Congress. But one of the challenges that we’re facing right now is the fact that the Chamorro Land Trust is subject to every other federal law, and so it’s being challenged right now under the Fair Housing Act.”

But by the congressional approval standard under which San Nicolas seeks constitutional safekeeping for Chamorro Land Trust holdings via tribal status, the Hawaiian Homes Commission Act would also philosophically bear constitutional protection, since it was passed by Congress, then signed into law by President Harding in 1921. Both the Congress and the Presidency are constructs of the Constitution with powers legislative and executive, respectively.

The Democratic contender for Guam’s only seat to Congress asserts that the Chamorro Land Trust’s continued vulnerability to the Fair Housing Act exposes indigenous lands to federal law barring racial discrimination against non-natives who could otherwise hold title to property considered indigenous by the Government of Guam. Indeed the US Dept. of Justice sued the Chamorro Land Trust last year, “alleging violations of the federal Fair Housing Act in carrying out the Chamorro Land Trust Act,” as retiring Guam Congresswoman Madeleine Bordallo put it in a letter of concern and recommendation to Gov. Calvo and Speaker Benjamin Cruz on Oct. 22, 2017.

“But tribal recognition, because it’s constitutional, it takes the Chamorro Land Trust out of that realm of being able to be challenged under every other federal law,” San Nicolas said. “Once you are congressionally recognized a tribe, once those lands are recognized as tribal lands, you have constitutional protection, and so none of the other federal laws can usurp that constitutional cover. That is the ultimate protection of the Chamorro Land Trust.”

So, according to San Nicolas’s reasoning, Congress’s constitutional power to creatively write and pass legislation would make its recognition of a Chamorro tribe on Guam, in essence, constitutional, if such a bill  were to be passed into law. Fair enough.

However, in her letter to Calvo and Cruz, Bordallo pointed out what she detected to be a land ownership drawback of “Federal Tribal Recognition for Guam’s Chamorro People”. She wrote, “Such action would effectively remove Chamorro homelands from GovGuam ownership and control. To date, there is no legal precedent for recognizing a tribe outside the mainland United States or designating tribal lands in a U.S. territory. Note that Native Hawaiians are not a federally recognized tribe. There are federally recognized tribal entities in Alaska, but not all Alaska Natives are tribal members or automatically eligible to receive tribal benefits from the federal Bureau of Indian Affairs.”

Nations unto themselves

The Constitution of the United States of America mentions Native Americans three times. Section 2 of Article I mentions “Indians not taxed” in reference to the apportionment of representatives and taxes. Section 8 of Article I mentions the regulation of commerce “with foreign Nations, among the several States, and with the Indian Tribes.” The 14th Amendment reiterates that Indians not be taxed. It would seem the federal government has been recognizing the limited sovereignty of Native American tribes since 1789, even before passage of the Bill of Rights, and at least as long as there has been a Constitution, successively ratified by all states of the union.

The Bureau of Indian Affairs itself recognizes an even earlier period of “US” governance in which tribes were officially recognized at the ebb of colonial government. “In the early years of the United States, Indian affairs were governed by the Continental Congress, which in 1775 created a Committee on Indian Affairs headed by Benjamin Franklin,” the BIA website reads. Since the earliest days of the US government, a great body of law has been built up around Native Americans and their tribes, on the reservation and off. But since Guam’s 1899 cession to the US as a spoil of the Spanish-American War, its native inhabitants have been granted the consideration neither of nationhood, treaties, nor distinct Native American lineage, as have the indigenous tribes of the mainland. It is this absence of precedence that appears to be the challenge of tribal implausibility for Guam’s traditional public servants.

Be that as it may, assuming there is a tribal horn for Chamorros to grasp, then in the absence of any mention of tribal lands, per se, in the Constitution, any constitutional protection San Nicolas would have for Chamorro Land Trust lands might reasonably come from Congress’s constitutional power to make law, much as it did in recognizing six Arizona tribes in a bill signed by President Trump last January. Apparently keen to what was about to happen, the BIA reportedly recognized the tribes before the legislation became law, by updating its tribal rolls.

According to bia.gov, the Bureau of Indian Affairs is the creation of 19th Century Secretary of War John C. Calhoun – an 1824 act of administrative law that was given statutory authority by Congress in 1832. Insofar as the Bureau of Indian Affairs is legally recognized by Congress (if not sprung from it), and is thereby subject to congressional and therefore constitutional authority, its administrative powers might well be considered constitutional. Fair again.

So were it ever to recognize Guam Chamorros as a tribe possessing non-reservation tribal lands, BIA might do so, in theory, under its constitutionally protected congressional authority. But pursuing Bordallo’s assertion that no tribe has ever been federally recognized in a U.S. territories, PNC could find no precedent for federally recognized tribal lands that are not ultimately the fee simple possessions of the United States under the administering care of the Bureau of Indian Affairs – whose current “mission is to enhance the quality of life, to promote economic opportunity, and to carry out the responsibility to protect and improve the trust assets of American Indians, Indian tribes and Alaska Natives.”

Powers of the state

So if the lack of precedence renders the federal tribal path a waste of time for Guam native inhabitants wanting to protect and use their lands as they see fit, then something akin to state recognition might be a more manageable path.

In 2002, Associate Attorney Christopher Reinhart with the Connecticut General Assembly wrote a report for the Office of Legislative Research to address lingering questions about the rights and privileges of the three Connecticut tribes in five that were not recognized by the federal government but were by the state. Here is what Reinhart observed, in part:

In 1989, legislation recognized these five tribes as “self-governing entities possessing powers and duties over tribal members and reservations.” Specifically, it required the governor to enter trust agreements with willing tribes to define the state-tribe relationship, made state reservations and motor vehicles owned by members of indigenous tribes and housed on reservations exempt from property taxes, and required that reservation land be held in trust by the state forever.

Connecticut statutes give these tribes power over (1) determining their membership and residency on their reservations, (2) determining the tribal form of government and leadership, (3) regulating trade and commerce on the reservation, and (4) making contracts. Reservation land is held by the state but the tribe has all the other rights of ownership, except alienation. Tribal members on their reservation can hunt, fish, and trap without a license. The DEP commissioner, with advice of the Indian Affairs Council, is responsible for the reservation land and buildings and services to members residing on reservations.

Connecticut’s state motto may be a disturbing denouement here. According to the public website portal.ct.gov, Qui Transtulit Sustinet is Latin for “He Who Transplanted Still Sustains”. The New England state remains 80 percent white, 220 years after it was granted statehood. Rightly or wrongly, here it seems the transplants still sustain ultimate authority over indigenous lands.

In an era when loved-and-hated America, with its far-flung Naval Empire, remains modern day Rome, every hamlet under the Stars and Stripes is cognizant of the gunboat diplomats who mete out the final word in matters of allotment as well as eminent domain and remembers with solemn dread that all is fair in love and war. The lesson of the ages is that survival of the fittest among the vanquished depends on a deftness for adaptation.

Limited sovereignty

Five hundred seventy-three (573) Native American tribes are now federally recognized across the country today. President Trump signed legislation recognizing those six Virginia tribes in January. They’re the latest to be added to the Dept. of Interior’s Bureau of Indian Affairs list that qualifies tribes for federal benefits and limited sovereignty, such as writing their own laws, levying their own taxes, and managing tribe-designated lands.

But it’s the “managing designated lands” part that makes Brooks ill at ease. The longtime public servant insists that tribal recognition comes at such a high price that it would turn back time on the years of toil already dedicated to salvaging local control of Chamorro lands from the federal government after the War in the Pacific.

“What I am looking for is recognition—recognition that these were properties taken at the time of the war, taken by the federal government. Then they returned those lands back to the original inhabitants, and that’s why these lands are in trust now under the Chamorro Land Trust.”

Notwithstanding precedent, San Nicolas still maintains that there are two paths to tribal status, one administrative through the Dept. of the Interior’s BIA, the other congressional and therefore flexible, and that his research—including a personal visit to DOI in Washington, D.C.—indicates congressional approval is the only tribal path for Guam. And h

And he’s fine with that, because a congressional route would ostensibly mean everything is up for negotiation, presumably including keeping Chamorro lands in Guam hands.

“So what does it mean if the only path to tribal recognition is congressional?” he asked. “What that means is we can tailor it to exactly how we want to tailor it, because the recognition would be whatever we write into the bill.

“We’re not talking about moving the Chamorro people onto a reservation. You know, you can stay living at your house in Dededo or Yigo or Talofofo or Umatac, or wherever you live. All we wanna do is we’re going to give Chamorro Land Trust Lands…to be protected as tribal lands. If you wanna live on those lands, you can. If you wanna have your ranch out there, you can. But we’re not going to be forcing anyone into any situation they’re not comfortable with.”

Brooks has been a vocal opponent of what she characterizes as San Nicolas’s misguided policy, even going so far as to post a video ad on social media flat out claiming in all caps: “MIKE SAN NICOLAS WANTS TO GIVE CHAMORRO LAND TRUST LAND BACK TO THE FEDERAL GOVERNMENT.”

Quotations in a recent press release underscore Brooks’s message.

“I’m concerned that Mr. San Nicolas has proffered this resolution, which has far reaching impacts to our island, without first understanding the serious ramifications of his actions,” Brooks said. “This issue of sovereignty and the Land Trust is too complex to be decided on a whim.”

The press release states that Brooks “would introduce legislation to follow the similar legislative path as Hawaii; passing federal legislation that recognizes Guam’s unique history and heritage while allowing for local ownership and control over how public lands currently held by GovGuam would be distributed back to landless indigenous peoples. She wants less federal control over local lands, not more and her proposed legislation would end the Department of Justice lawsuit once and for all.”

The release goes on to state, “both Hawaii and the CNMI have shown that it can be done with well thought-out legislation that fits their unique needs best. We should learn from those past lessons instead of proposing ideas that won’t work and that undermine the reputation of Guam’s people to govern themselves.”

In the release, Brooks said she agrees with outgoing Congresswoman Bordallo and with Bordallo’s Democratic congressional predecessor Dr. Robert Underwood that, “we need to take a step back from this ledge and fully understand what it is that is best for Guam. Certainly, surrendering even more of our land to the federal government is not in our best interest. Mr. San Nicolas’s proposal shows an alarming lack of depth and is a backwards approach to establishing special federal recognition of the CLTC. It would undo decades of work to establish the sovereignty of the CLTC.”

Not one to take campaign season criticisms lightly, San Nicolas shot back with his own statement.

“Mrs. Brooks clearly doesn’t understand that when you draft a Bill in Congress you can include language that doesn’t speak towards sovereignty. Tribal recognition would not ‘return local lands back to the Feds.’” He said. “That is absurd. What it would do is extend Constitutional protection to CHamoru lands.

“Mrs. Brooks is clearly attempting to deflect from her gaffe about mirroring CNMI land laws on Guam, which would usurp private ownership land rights and ensure that no Filipinos, Chinese, Korean, or any other non-CHamoru ethnic group would be unable to leave their land to their children, and any non-CHamoru business would have its land stripped. She would cause families to lose their homes, decimate our economy, and shatter our real estate industry. Accuracy matters in policy as much as it does in accounting, and Mrs. Brooks is grossly inaccurate on all accounts.”

The commonwealth comparison

The CNMI’s covenant relationship with the United States makes ownership of all privately held lands the exclusive right of the islands’ native inhabitants.

Section 1: Alienation of Land, Article XII of the Commonwealth of the Northern Mariana Islands’ Commonwealth Constitution states, “The acquisition of permanent and long-term interests in real property within the Commonwealth shall be restricted to persons of Northern Marianas descent. The CNMI Constitution notes that this is an “original provision, unaltered (ratified 1977, effective 1978).”

Although it has created some unique foreign investment conditions in the real estate sector, Article XII has withstood the test of time for 40 years. Although geographically in the same archipelago and sharing a common heritage, language, culture, and genealogy, the Northern Marianas are recognized as a member of the United States under entirely separate terms from those of the unincorporated U.S. Territory of Guam.  Unlike Guam, the commonwealth controls its own immigration, sets its own minimum wage, and enjoys freedom from US customs duties and the Jones Act.

However, Brooks’s news release does not specifically mention making all Guam lands indigenous, it uses  the commonwealth’s  covenant with the U.S. as an example of special legislation approved by Congress and the President.

A begrudging agreeance

If there is any common ground between San Nicolas and Brooks, it may be a mutual desire to protect Chamorro Land Trust lands from applicable federal laws and certain constitutional standards, such as the Fair Housings Standards Act barring racial discrimination and the 14th Amendment addressing citizenship rights and providing equal protection under the law. It is each candidate’s approach to protecting native Chamorro land rights that is diametrically opposed to the other—thereby inspiring Brooks to make the leap that San Nicolas wants to return Chamorro Land Trust lands to the federal government. And that would be because federally recognized tribal lands are always placed under the trust and fiduciary care of the federal government and the Dept. of Interior’s Bureau of Indian Affairs.  Presently, tribes are federally recognized in 35 US states, including Alaska, which itself contains 229 diverse nations. None are recognized in US territories and possessions.

Whereas Brooks says go with what works, San Nicolas says dream for something better, because the CLTC is already facing federal scrutiny for constitutional discrimination as it reserves residential leases only for those of legally recognized Chamorro ancestry. But in the absence of any clear precedent, San Nicolas’s unique tribal lands approach under the unfettered rule of the Government of Guam and its Chamorro Land Trust could be an uphill battle. It faces a firmly ensconced US penchant for establishing federally recognized tribes in order to help protect indigenous ways of life in the better spirit of too-often broken treaties with nations of peoples, a diplomatic history Guam does not have to draw upon in making a case to Congress for a Chamorro tribe.

To her credit, outgoing delegate Bordallo leaves office having presented to the governor what she deems four other workable options besides tribal recognition that might be introduced to committee in the form of legislation for consideration by Congress, besides (1) tribal status. The other options include (2) enacting a new federal law modeled on the Hawaiian Homes Commission Act of 1921, which would provide “long-term leases at nominal cost” to Native Chamorros “for homesteading”; (3) federalizing Guam’s 1975 Chamorro Land Trust Act; (4) remodeling the Chamorro Land Trust after the Alaska Native Claims Settlement Act of 1971 establishing “Alaska Native corporations to own and manage land for the exclusive benefit of their shareholders: Alaska’s indigenous peoples”; and (5) extending a Fair Housing Act exemption.

Admitting that her list is not exhaustive, Bordallo told the governor and speaker that she hopes her list of five remedies will prove useful as the government works to reach a consensus. “I will champion any legislation that maintains the original intent of the Chamorro Land Trust and provides a sound legal basis for its continued operation,” she wrote a year ago, not foreseeing her loss in the August primary that would follow. “However, it is imperative that we present a unified, ‘One Guam’ position for any legislation I introduce.”

Although the Bureau of Indian Affairs lists three types of Indian lands other than reservations, all appear to be premised on tribal status and subject to federal or state control. They are (1) allotted lands – remnants of old, broken-up reservations and conveyed back to tribes under federal trust, (2) restricted fee in which title is held by an individual Indian person or tribe, and (3) state Indian reservations, or “lands held in trust by a state for an Indian tribe…stemming from treaties or other agreements between a tribal group and the state government or the colonial government(s) that preceded it.”

“Parable of the Tribes”

With the line presently drawn in the sand over the merits and demerits of prospective federal tribal status for Guam Chamorros and their trust lands, a consideration of the tenets of group survival may be apropos here.

In his landmark 1984 book, Parable of the Tribes, Andrew Bard Schmookler argues that the history of civilization is an epic struggle among groups jockeying for power, that growing human freedom in civilized society breeds restlessness and anarchy and that the choices of less powerful tribes are limited to four options: (1) destruction, (2) absorption and transformation, (3) withdrawal, or (4) imitation.

Schmookler reflects that “in every one of these outcomes the ways of power are spread throughout the system. This is the parable of the tribes.”

Too, he writes, “no one is free to choose peace, but anyone can impose upon all the necessity for power. This is the lesson of the parable of the tribes.”

Robert F. Rogers’ seminal 2011 history of Guam, Destiny’s Landfall, uses the phrase “parable of the tribes” in suggesting the way the people of tiny Guam have adapted to outside forces in the ever-changing throes of geopolitics sweeping history at the behest of powerful nations:

Anthropologists have described the parable of the tribes as a division between “resilient societies” (which adapt by maintaining population and resource needs below the environmental carrying capacity) and “power-based” societies (which adapt by acquiring more territory, resources, and people). The resilient, non-power-based society is found more often among small traditional cultures such as that of the precontact Chamorros, while the power-based kind is found mainly among modernizing Western nation-states such as Spain.

For sake of survival in the heat of political battle, candidates for elective office may discover in the parable of the tribes a timely lesson in sustaining the better angels of their influence. For the smart gambler, the parable can be best summed up in the earthy language sung by Kenny Rogers:

You got to know when to hold ’em, know when to fold ’em

Know when to walk away and know when to run

You never count your money when you’re sittin’ at the table

There’ll be time enough for countin’ when the dealin’s done

Every gambler knows the secret to survivin’

Is knowin’ what to throw away and knowing what to keep

Cause every hand’s a winner and every hand’s a loser

And the best that you can hope for is to die in your sleep

—Don Schlitz, 1976

As American Indians know all too well, adaptability renders the resilient durable for the victory of longer-term survival, even ages after the defeat of some of their most cherished ways of life.

Interviews with Brooks and San Nicolas will air soon on FOX6 and ABC7 television stations in Guam on the half-hour program “Coffee with the Candidates”.  Brooks’s interview focuses on how to better manage and pay for the island’s unfunded mandates. San Nicolas’s interview covers the interplay between Guam’s delegate’s seat in Congress and the territory’s executive-branch Washington, D.C. office, as well as how the up-and-coming politician hopes to break new ground for Guam within the nation’s capital.

Here’s the broadcast schedule:

Coffee w/the Candidates GUAM’S CONGRESSIONAL DELEGATE Episode will premiere on Thursday, Oct. 25 @ 6 p.m. on FOX 6 and again that same night on ABC 7 @ 6:30 p.m.
The same episode will re-broadcast ONLY on Saturday, Oct. 27th @ 1:30 p.m. on FOX 6 and again at 3:30 p.m. on ABC 7.
This episode will be uploaded on the SMG YouTube page on Monday, Oct. 29th.