War in the Pacific War in the Pacific National Historic Park An Administrative History

Introduction

The legal and political environment within which the War in the Pacific National Historical Park was created and developed has played a significant role in the relationships of the National Park Service, the United States Government, and the Government of Guam. An appreciation of the historical development of Guam's legal status, both as it relates to the United States and to the international community generally, will enable the reader to more fully place the park within it proper context.

In 1950, the United States Congress enacted what would become known as the Organic Act of Guam. [97] There were a number of significant provisions contained in this legislation, but the two provisions having the greatest effect on the daily lives of Guam residents were the grant of United States citizenship and the establishment of local control over many local issues. The profound significance of the Organic Act to both residents of Guam, and ultimately its effect on the War in the Pacific National Historical Park can only be fully appreciated after an examination of the historical context within which the legislation was enacted.

Under the terms of the December 10, 1898, Treaty of Paris [98] Spain ceded Guam to the United States. Importantly, the treaty did not provide for eventual incorporation of Guam into the United States. This failure to provide for eventual incorporation led and continues to lead to a sense of disenfranchisement and political frustration by residents of Guam.

Until the early 1900s, territorial status was considered an initial step toward eventual statehood. The three evolutionary stages were spelled out in the Northwest Ordinance: [99] (1) the territory would be governed by a congressionally designated governor and other federally appointed executive and judicial officials; (2) a local legislative body would be created, a permanent constitution drafted, and a nonvoting delegate allowed in Congress; and (3) full self-government and statehood would be granted. However, as the United States began acquiring lands remote from the continental United States the concept of "territorial incorporation" evolved to distinguish between areas intended to be ultimately anointed with statehood and those areas not intended for statehood. An "unincorporated" territory was not intended for ultimate statehood, an "incorporated" territory was. Importantly, residents of an "incorporated" territory were afforded the full spectrum of constitutional rights enjoyed by United States citizens under the extension doctrine. [100] Guam was (and remains) an unincorporated territory, and its residents are subject to the full weight of federal control without commensurate counter-balancing congressional representation or voting rights. [101]

Residents of Guam logically judge their relationship with the United States and the rest of the world in part by comparing their legal status with the status enjoyed by their immediate neighbors, specifically other residents of Micronesian islands. Unfortunately, those comparisons increasingly lead to discontent. Guam's militarily strategic location motivates the United States to treat the island as a military installation and, unfortunately, its unique cultural and legal history provide just enough justification to enable the United States to get away with it.

Unlike Guam, which the U. S. acquired in the late 1800s, the rest of Micronesia became the responsibility of the United States after the Second World War when Japan's League of Nations' responsibilities were reassigned to the United States by the newly-created United Nations. The legal instrument under which the United States acquired its responsibilities was the Trusteeship Agreement, [102] a bilateral contract between the United States and the United Nations. [103] Under the provisions of the Trusteeship Agreement (as well as the mandate of the United Nations) the United States was charged with administering the Trust Territories in a manner designed to lead to self-governance or independence. In the more than fifty years since the formation of the Trusteeship Agreement, the Commonwealth of the Northern Mariana Islands, the Federated States of Micronesia, the Republic of the Marshall Islands, and the Republic of Palau have all achieved, under the tutelage and with the encouragement of the United States, some form of separate political identities.

Although United States sovereignty over Guam is clearly distinguishable in international law from its neighbors, residents of Guam compare their seeming lack of power over their daily lives with their Micronesia neighbors. They are understandably dissatisfied, finding no delight in the subtle nuances of international law, and the mandates of the United Nations' agreement which defines the relationship between the United States and the rest of Micronesia. In contrast, the territorial clause of the United States Constitution, which defines the relationship between Guam and the U. S. empowers Congress, "to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States." [104] In short, the territorial clause of the United States Constitution grants Congress powers to govern the internal and external affairs of U. S. territories. As the Supreme Court stated in Sims v. Sims, "In the Territories of the United States, Congress has the entire dominion and sovereignty, national and local, Federal and state, and has full legislative power over all subjects upon which the legislature of a State might legislate within the State. . ." [105] This federal dominion exceeds the control that can be exercised by the federal government over states. The residents of Guam do not have the political powers enjoyed by states. These powers rest in the United States Congress. [106] Additionally, Guam residents are not permitted to vote in federal elections, they are permitted only such congressional representation as may be bestowed by Congress, and what Congress gives Congress may take away.

It is from this long-term, ninety-year-old position of total subservience to the federal government that residents of Guam have watched their neighbors in the rest of Micronesia achieve greater control over both their internal and external affairs. Two weeks after the 1898 peace treaty with Spain was signed, President William McKinley placed the United States Navy in complete control of Guam. The Navy remained in charge for over fifty years until Congress passed the 1950 Organic Act under which President Harry S Truman replaced the Navy with the United States Department of the Interior. It should be noted, however, that notwithstanding both presidential proclamation and congressional passage of the 1950 Organic Act, the U. S. Navy continued to exercise dominion over the island through its "security clearance" program. Under this program, no person could enter or leave Guam unless they passed through an island naval base. Additionally, the U. S. Navy prohibited civilian airlines from selling tickets to a person unless the airline first determined that the person had a security clearance. Only after being sued in United States District Court did the Navy comply with the will of Congress and the president. In fact, it took a second Presidential Order, some twelve years after Truman's 1950 order to force the Navy to comply with the law (Executive Order 11045, August 21, 1962, Kennedy). [107]

The 1950 Organic Act delineated certain powers of local governance. The United States Congress; however, can amend or repeal the legislation at will. There has been a movement for local governance for over one hundred years. In 1901, Guamanians petitioned the United States asking that a permanent civilian government be established. That petition was approved by the naval governor and sent to the Senate. It passed the Senate in 1903 but was blocked in the House of Representatives. In 1925 and again in 1933, Guamanians petitioned Congress for United States citizenship. Both petitions failed. In 1931, the United States naval governor created the first elected Guam Congress; however, two years later, the Guam electorate expressed profound dissatisfaction with the advisory-only political body by refusing to fill twelve seats. In both 1937 and 1939, the Guam Congress again petitioned the United States Congress for citizenship, without success. Finally, with the enactment of the Organic Act in 1950, Guamanians were granted U. S. citizenship and provided with a basic local government framework that included a local legislature empowered to enact laws of local application. [108]

The Organic Act, as originally passed in 1950, proclaimed that, "The government of Guam shall have the powers set forth in this Act. . . " [109] Federal courts have repeatedly held that the government of Guam possessed only those powers conferred upon it by the Congress of the United States. [110] The Organic Act also included a "Bill of Rights," [111] granted United States citizenship to persons living in and born in Guam. [112]

Three provisions contained in the Organic Act are critically important to understanding the history of War in the Pacific National Historical Park. [113] These sections deal with property, both land and personal property. They address three separate issues: title of all property, control of all property, and administrative supervision of all property:

a) The title of all property (both land and personal property) owned by the United States and used by the naval government of Guam in the administration of civil affairs was transferred to the government of Guam;

b) The control of all property (both land and personal property) owned by the United States but not used in the administration of civil affairs, was placed under the control of the government of Guam to be administered for the benefit of the people of Guam; and

c) The administrative supervision of all property (both land and personal property) not covered by sections a) and b) was placed under the control of the United States Secretary of the Interior who was empowered to lease or sell it when he or she concluded that the property was no longer needed for public purposes. (Please see Appendix 7 of this Administrative History for the precise language of this section of the act.)

Importantly, the president of the United States could stop the conveyance of title and control of property ((a) and (b), above), and President Truman did just that. By Executive Order 10178, dated October 30, 1950, [114] Truman stopped the transfer of a large quantity of both personal and real property, including hundreds of acres of land, road and utility systems, navigational aids, Adelup Reservoir, and electrical power stations, as well as all the personal property used in connection with the retained real property. President Truman's Executive Order also prohibited the conveyance of land to the Government of Guam that the Navy had identified immediately after the war as replacement land for land taken from residents of Guam; administrative control over this land was transferred to the Secretary of the Interior.

Guam's representation in the United States Congress was not granted by the Organic Act. In 1964, the Guam Legislature created its own elected office in Washington, D.C. The position was little more than an elected lobbyist since it carried with it no voting powers in either the Senate or the House of Representatives. The position was finally recognized, at least partially, by the federal legislature when it amended the Organic Act in 1972, permitting Guam to elect a nonvoting member of the House of Representatives. Finally, Guamanians were permitted to draft their own constitution in 1976. However, on the eve of the constitutional convention, the United States Supreme Court concluded that the Guam Legislature lacked authority under the Organic Act to create a Guam Supreme Court and dissolved the island's Supreme Court. [115] A draft constitution was finally presented to the island electorate in 1979. It was defeated.

Within two years, the Guam Legislature created the Commission on Self-Determination for Guam, charged with ascertaining the type of political relationship the Guamanians wanted with the United States. Voters were presented with six options: statehood, commonwealth status, incorporated territory, status quo, free association, or independence. Commonwealth status was selected most often, with statehood coming in a close second. [116] The Commission on Self-Determination prepared a Draft Commonwealth Act intending to submit it to the United States Congress. The U. S. House of Representatives Committee on Interior and Insular Affairs expressed concern with provisions of the Draft Commonwealth Act that conditioned certain voting rights on race. However, the Guam Commission on Self-Determination refused to modify or eliminate the racist provision. In August 1987, the residents of Guam voted on the Draft Commonwealth Act. With a voter turn-out of approximately 39 percent the proposed commonwealth act was approved by approximately 51 percent except those provisions based upon race which were not approved. The objectionable provisions were redrafted and resubmitted to the electorate in a second election in November of 1987 where a 54 percent voter turnout passed the document with a 55 percent for and 45 percent against vote.

During the 1988 national elections, the Republic platform included a provision supporting the creation of commonwealth status for Guam under United States sovereignty. After the republican victory in that election, the administration appointed Manuel Lujan as Secretary of the Interior. Lujan had been very active in the Guam commonwealth movement.

Greater autonomy may have become a popular issue of successful political campaigns and socio-economic agendas; however, the reality is that Guam is financially constrained from straying too far from United States fiscal coffers. As of March 1981, more than fifty percent of all employed civilian, non-military persons were working for either the territorial or federal government. All income taxes, including taxes collected from military personnel assigned to the island, stayed on the island as general fund revenues of the territorial government. In the beginning of the 1981 federal fiscal year (October 1, 1981), this revenue amounted to fifteen percent of Guam's total general fund revenues. Revenue received by the government for fiscal year 1982 totaled US$153.6 million, a 5.9 percent increase from the prior year. Forty-eight percent of this revenue was derived from territorial income tax, twenty-five percent from a four percent sales tax on goods and services, and fifteen percent from income tax collected from federal employees (including military personnel stationed on the island). These government revenue figures should be viewed against the backdrop of the increase in the island's total gross receipts. In 1973 gross receipts were only US$563 million; however, by fiscal year 1982 they had reached US$1 billion. Retailing (32 percent) and manufacturing (31 percent) were the two primary sources of the island's gross receipts. [117]

The fastest growing industry in Guam over the last forty years is tourism. Since the arrival of the first regularly scheduled commercial flight from Japan in 1967, tourist spending on the island has climbed from US$1.32 million in 1966 to US$130 million in 1982. Approximately 84 percent of the 326,341 tourists arriving on the island in 1982 were from Japan, and their spending accounted for more than thirty-two percent of total retail sales on the island. [118] Some economic scholars have asserted that Guam's economic development in the 1960s and 70s has been impressive. For example, the per capita income in 1982 was US$4,574, or almost double what it was in 1972. [119] The fact that an increasingly large percentage of the island's total revenue is derived from tourism may foreshadow a change of heart by island residents. As the island's economic dependency on the United States military becomes increasingly overshadowed by Japanese tourism, the residents may flirt with other forms of relationships with the United States.