Addresses the question of who can participate in the process

Davis v. Guam is a key court case which addresses the question of who is able to participate in the process to determine Guam’s future political status. The case, which was challenged in US Ninth Circuit Court of Appeals, has far-reaching implications for the future of Guam’s self-determination efforts. 

350 years of colonial occupation

Throughout Guam’s 350 year history of colonial occupation, the CHamoru people have never been able to exercise self-determination and secure their political destiny. As a current unincorporated territory of the United States, the CHamoru people are continuing a long tradition of advocating for self-determination through various legal and political pathways. 

As part of this effort, Guam’s lawmakers have worked to establish mechanisms to exercise self-determination. The Commission on Decolonization was created by the 24th Guam Legislature in 1997 to assess the desires of the people of Guam and educate the community on possibilities of decolonization.

Some similarities to Hawai’i case

In many ways, the contentious issues at the heart of Davis v. Guam mirror Rice v. Cayetano, a court case that addressed similar questions in Hawai’i. In Rice v. Cayetano, the United States Supreme Court ruled that a Hawai’ian Constitutional provision, which determines that the right to vote for trustees of the Office of Hawai’ian Affairs belongs only to Hawai’ians (defined as descendants of not less than one-half part of the races inhabiting the islands before 1778, the first recognized date of Western colonial contact), is a violation of the 15th Amendment as it creates a voting qualification based upon racial identity.

Guam lawmakers worried that the outcome of the Rice v. Cayetano decision would affect Guam’s self-determination process, as there were already murmurs from critics within the community who negatively called the future plebiscite a “CHamoru-only vote.” Hoping to dodge the legal issues that plagued the Rice decision, Senator Mark Forbes introduced a bill to establish the Guam Decolonization Registry. 

Guam Public Law 25-106 which states that the Decolonization Registry, which is intended to register participants to vote in a future plebiscite to determine the island’s future political status, is only open to native inhabitants. The plebiscite would ask native inhabitant voters to choose between three potential political status options: independence, free association, and US statehood.

Native inhabitants are identified as a class of people who are defined by law as “persons who became US citizens by virtue of the authority and enactment of the 1950 Organic Act,” which granted US citizenship to the people of Guam that were present on island during the Act’s passage, as well as their descendants. 

Davis says CHamoru self-determination violates his Constitutional rights

In November 2011, Arnold Davis, a non-CHamoru, American resident of Guam filed a suit against the Government of Guam – claiming that his inability to register on the Guam Decolonization Registry (which is only open to “native inhabitants”) is a violation of his 5th, 14th, and 15th amendment rights under the US Constitution. Davis also argued that the rights entitled to him through the Organic Act of Guam and the Voting Rights Act were being violated by the native inhabitant clause. 

Essentially, Davis argued that the native inhabitant excluded him and many others of non-CHamoru descent from participating in the political status plebiscite, and that therefore the law was discriminatory in that it abridged the rights of US citizens to vote on account of race, color, or national origin. Davis was represented by the Center for Individual Rights, a politically conservative legal organization which is known for its opposition to affirmative action.

Aguon argues decolonization is a remedy

In the Davis v. Guam case, the Government of Guam was represented by Attorney Julian Aguon. In the 2016 hearing, Aguon argued that decolonization is not a right that applies to all.

“It is a remedy to restore a right that was taken away. This cure is meant for a particular harm that was inflicted on a particular group of people. US Congress itself defines this group as those who were made citizens by the enactment of the 1950 Organic Act of Guam and their descendants.” 

Julian Aguon

Aguon also argued that the native inhabitant clause is not explicitly race-based because various ethnic groups, not exclusively CHamorus, can be considered native inhabitants if they or their ancestors were present on the island during the passage of the Organic Act in 1950. 

In March 2017, Guam District Court Judge Frances Tydingco-Gatewood ruled in Davis’ favor. In her legal opinion, Tydingco-Gatewood ruled that the Public Law  25-106 is unconstitutional in that the native inhabitant definition violates the 14th and 15th amendments. 

The 14th amendment states that no laws shall be made or enforced which abridge the privileges or immunities of US citizens. It also declares that no State shall deprive citizens of life, liberty, or property without due process of law, nor deny any person within its jurisdiction equal protection of the laws. The 15th amendment states that the rights of citizens shall not be denied or abridged on account of race, color, or previous condition of servitude. 

During the court hearing, Attorney Aguon argued that the Supreme Court’s opinions on the Insular Cases, which examine the status of US territories, affirm that the applicability of the US Constitution is flexible. In other words, US Congress has historically determined how and if the Constitution applies to Guam, primarily because the island exists in relationship to the US as a territory and not as state. 

Judge rules that the court must recognize all

In her ruling, Judge Tydingco-Gatewood stated that the court “recognizes the long history of colonization of this island and its people, and the desire of those colonized to have their right to self-determination. However, the court must also recognize the right of others who have made Guam their home.”

The Government of Guam appealed the decision and the appeal was heard before a Ninth Circuit panel at the University of Hawaii on 10 October 2018. On the same day, a delegation of CHamoru women testified before the United Nations on the question of Guam’s political status, and one petitioner spoke on the topic of Davis case.  

During the panel, Attorney Aguon argued that the purpose of the “law is to identify the group entitled to decolonization rights.”

Davis’ attorney, Luke Townsend, countered that the plebiscite is “a matter of tremendous importance to the inhabitants of Guam but limits the electorate to the CHamorus, a racially defined group.”

A key part of Attorney Aguon’s argument rests in distinguishing US civil rights from rights that are given weight through international law. Aguon told the panel that self determination actually belongs to an exalted class of international norms.

“You know what else is in that class? The prohibition against genocides, slavery, piracy, war crimes and crimes against humanity.”

Julian Aguon

9th Circuit Court affirms decision

On 29 July 2019, a panel of Ninth Circuit court judges issued an opinion which affirmed Tydingco-Gatewood’s decision. The court’s opinion stated: “Despite its limited immediate impact, the results of the planned plebiscite commit the Guam government to take specified actions and thereby constitute a decision on a public issue for 15th Amendment purposes.” 

The Commission on Decolonization will continue education efforts and remains unaffected by the ruling. 

By Samantha Marley Barnett

For further reading

Pacific Daily News.Court: Political status vote is illegally race-based,” 30 July 2019. Retrieved 29 August 2019.

Pacific News Center. “Guam loses Dave Davis case; 9th appeals court upholds injunction against political status plebiscite; Guam leaders disappointed but will discuss possible options,” 30 July 2019. Retrieved 29 August 2019.

Hawai`i Free Press. Guam case that echoes Rice v. Cayetano to be argued before Ninth Circuit at law school on October 10,” 3 October 2018. Retrieved 29 August 2019.

Courthouse News Service. “Guam Argues for Native Voting Law Before 9th Circuit,” 11 October 2018. Retrieved 29 August 2019.

Frances Tydingo-Gatewood. Summary Judgement Order Davis v Guam. Hagåtña, Guåhan: District Court of Guam, 3 March 2017. Retrieved 29 August 2019.

United States Courts for the Ninth Circuit. Listen to recording for case: Arnold Davis v. Guam, No. 17-15719” (AUDIO RECORDING). Honolulu, Hawai`i: 9th Circuit hearing at the University of Hawai`i at Manoa. 10 October 2018. Retrieved 29 August 2019.

Asian American Law Journal.Understanding Native Hawaiian Rights: Mistakes and Consequences of Rice v. Cayetano,” January 2008. Retrieved 29 August 2019.

Torruella, Juan R. “Ruling America’s Colonies: The Insular Cases.” Yale Law & Policy Review. Volume 32, Issue 1, Article 3 (2013). Retrieved 29 August 2019.