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THE PROPOSED VIRGIN ISLANDS 

CONSTITUTION FROM THE FIFTH 

CONSTITUTIONAL CONVENTION 

OVERSIGHT HEARING 

BEFORE THE

SUBCOMMITTEE ON INSULAR AFFAIRS, 

OCEANS AND WILDLIFE 

OF THE

COMMITTEE ON NATURAL RESOURCES 

U.S. HOUSE OF REPRESENTATIVES 

ONE HUNDRED ELEVENTH CONGRESS 

SECOND SESSION 

Wednesday, March 17, 2010 

Serial No. 111-49 

Printed for the use of the Committee on Natural Resources 

( 

Available via the World Wide Web: http://www.gpoaccess.gov/congress/index.html 

or 

Committee address: http://resourcescommittee.house.gov 

(II) 

COMMITTEE ON NATURAL RESOURCES 

NICK J. RAHALL, II, West Virginia, Chairman 

DOC HASTINGS, Washington, Ranking Republican Member 

Dale E. Kildee, Michigan 

Eni F.H. Faleomavaega, American Samoa 

Frank Pallone, Jr., New Jersey 

Grace F. Napolitano, California 

Rush D. Holt, New Jersey 

Rau ́l M. Grijalva, Arizona 

Madeleine Z. Bordallo, Guam 

Jim Costa, California 

Dan Boren, Oklahoma 

Gregorio Sablan, Northern Marianas 

Martin T. Heinrich, New Mexico 

George Miller, California 

Edward J. Markey, Massachusetts 

Peter A. DeFazio, Oregon 

Maurice D. Hinchey, New York 

Donna M. Christensen, Virgin Islands 

Diana DeGette, Colorado 

Ron Kind, Wisconsin 

Lois Capps, California 

Jay Inslee, Washington 

Joe Baca, California 

Stephanie Herseth Sandlin, South Dakota 

John P. Sarbanes, Maryland 

Carol Shea-Porter, New Hampshire 

Niki Tsongas, Massachusetts 

Frank Kratovil, Jr., Maryland 

Pedro R. Pierluisi, Puerto Rico 

Vacancy 

Don Young, Alaska 

Elton Gallegly, California 

John J. Duncan, Jr., Tennessee 

Jeff Flake, Arizona 

Henry E. Brown, Jr., South Carolina 

Cathy McMorris Rodgers, Washington 

Louie Gohmert, Texas 

Rob Bishop, Utah 

Bill Shuster, Pennsylvania 

Doug Lamborn, Colorado 

Adrian Smith, Nebraska 

Robert J. Wittman, Virginia 

Paul C. Broun, Georgia 

John Fleming, Louisiana 

Mike Coffman, Colorado 

Jason Chaffetz, Utah 

Cynthia M. Lummis, Wyoming 

Tom McClintock, California 

Bill Cassidy, Louisiana 

James H. Zoia, Chief of Staff 

Rick Healy, Chief Counsel 

Todd Young, Republican Chief of Staff 

Lisa Pittman, Republican Chief Counsel 

SUBCOMMITTEE ON INSULAR AFFAIRS, OCEANS AND WILDLIFE 

MADELEINE Z. BORDALLO, Guam, Chairwoman 

HENRY E. BROWN, JR., South Carolina, Ranking Republican Member 

Dale E. Kildee, Michigan 

Eni F.H. Faleomavaega, American Samoa 

Frank Pallone, Jr., New Jersey 

Gregorio Sablan, Northern Marianas 

Donna M. Christensen, Virgin Islands 

Diana DeGette, Colorado 

Ron Kind, Wisconsin 

Lois Capps, California 

Carol Shea-Porter, New Hampshire 

Frank Kratovil, Jr., Maryland 

Pedro R. Pierluisi, Puerto Rico 

Nick J. Rahall, II, West Virginia, ex officio 

Vacancy 

Don Young, Alaska 

Jeff Flake, Arizona 

Doug Lamborn, Colorado 

Robert J. Wittman, Virginia 

John Fleming, Louisiana 

Jason Chaffetz, Utah 

Bill Cassidy, Louisiana 

Doc Hastings, Washington, ex officio 

(III) 

CONTENTS 

Page 

Hearing held on Wednesday, March 17, 2010 ....................................................... 1 

Statement of Members: 

Bordallo, Hon. Madeleine Z., a Delegate in Congress from Guam ............... 1 

Prepared statement of ............................................................................... 3 

Christensen, Hon. Donna M., a Delegate in Congress from the Virgin 

Islands ............................................................................................................ 5 

Young, Hon. Don, the Representative in Congress for the State of Alaska 6 

Prepared statement of ............................................................................... 6 

Statement of Witnesses: 

Brady, Douglas A., Delegate, Fifth Constitutional Convention .................... 57 

Prepared statement of ............................................................................... 58 

Bryan, Adelbert M., Delegate, Fifth Constitutional Convention .................. 38 

Prepared statement of ............................................................................... 40 

Cedarbaum, Jonathan G., Deputy Assistant Attorney General, U.S. 

Department of Justice .................................................................................. 7 

Prepared statement of ............................................................................... 9 

de Jongh, Hon. John P., Jr., Governor, U.S. Virgin Islands ......................... 15 

Prepared statement of ............................................................................... 18 

Emanuel, Gerard M., Delegate, Fifth Constitutional Convention ................ 41 

Prepared statement of ............................................................................... 43 

Hassell-Habtes, Lois, Ph.D., Delegate, Fifth Constitutional Convention .... 51 

Prepared statement of ............................................................................... 52 

James, Hon. Gerard Luz Amwur, II, President, Fifth Constitutional 

Convention ..................................................................................................... 25 

Prepared statement of ............................................................................... 27 

Petersen, Eugene A., DVM, Delegate, Fifth Constitutional Convention ..... 53 

Prepared statement of ............................................................................... 55 

Richards, Hon. Usie R., Minority Leader, 28th Legislature of the Virgin 

Islands ............................................................................................................ 20 

Prepared statement of ............................................................................... 23 

(1) 

OVERSIGHT HEARING ON ‘‘THE PROPOSED 

VIRGIN ISLANDS CONSTITUTION FROM THE 

FIFTH CONSTITUTIONAL CONVENTION.’’ 

Wednesday, March 17, 2010 

U.S. House of Representatives 

Subcommittee on Insular Affairs, Oceans and Wildlife 

Committee on Natural Resources 

Washington, D.C. 

The Subcommittee met, pursuant to call, at 2:10 p.m. in Room 

1324, Longworth House Office Building, Hon. Madeleine Bordallo 

presiding. 

Present: Representatives Bordallo, Sablan, Christensen, Pierluisi, 

Young, and Flake. 

Ms. BORDALLO. Good afternoon, everyone. For those who are 

standing in the back, we do have chairs on the lower dais here. You 

are more than welcome to be seated. The hearing by the Subcommittee on Insular Affairs, Oceans, and Wildlife will come to 

order. The Subcommittee is meeting today to receive testimony on 

the proposed constitution of the United States Virgin Islands submitted by the Fifth Virgin Islands Constitutional Convention. 

While Committee Rule 4(g) limits opening statements to the 

Chair and the Ranking Minority Member, in a few minutes, I intend to also recognize my good friend, the gentlewoman from the 

Virgin Islands, Dr. Christensen, to make a few opening remarks 

and to introduce her constituents who are here with us today. If 

any other Members have statements, they can be included in the 

hearing record under unanimous consent. I now will recognize myself for an opening statement. 

STATEMENT OF HON. MADELEINE Z. BORDALLO, A DELEGATE 

IN CONGRESS FROM THE TERRITORY OF GUAM 

Ms. BORDALLO. The United States Virgin Islands and the congressional district I have the privilege to represent here in 

Congress, the Territory of Guam, are the only two United States 

jurisdictions that are not governed by a constitution written by 

their people. Both areas are, in fact, governed by an organic act 

that was written by Congress. 

To more firmly enable both jurisdictions to write their own constitutions, Congress in 1976 enacted legislation, sponsored by the 

former Virgin Islands and Guam delegates, to authorize the people 

of the Virgin Islands and Guam to convene constitutional 

2 

conventions and write their own local constitutions. The law, which 

was U.S. Public Law 94-584, sets out a process for Federal review 

of any proposed constitution, including 60-day periods for both 

Presidential and congressional review, respectively. 

The Virgin Islands has on four previous occasions written constitutions pursuant to local law and two in accordance with the 

U.S. Public Law 94-584. The first attempt was in 1964. It was not 

approved in its entirety by Congress, and the second in 1971 was 

never submitted to Congress because of the low level of voter support when it was submitted to the people of the territory for their 

approval. 

The third draft constitution was submitted to Congress in 1978, 

but was rejected by the voters when it was returned to them without having been amended. A fourth proposed constitution was 

drafted in 1980. Congress approved that document via a joint resolution in 1981, but it too was rejected by the voters, which brings 

us to the current document before us today. 

The law that authorized the writing of a constitution by the Virgin Islands and Guam empowers Congress with the ability to 

amend or clarify the said constitution should we see fit. Congress 

would also allow a proposed constitution to be returned to the residents of either territory for approval by the voters without changing the document in any way, as was done by the 96th Congress 

with a third proposed Virgin Islands constitution. 

In submitting the fifth proposed constitution to Congress, President Obama included for our consideration a legal memorandum 

from the United States Department of Justice which outlines at 

least eight areas in the proposed constitution that the Department 

believes should either be removed from the constitution or modified. We understand the witness for the Department of Justice 

today will elaborate on this further. 

The principal question confronting this committee and Congress 

is whether or not we will be able to modify or amend the draft constitution to conform to the recommendations of the Justice Department. In examining this question, we are mindful that the law authorizing this process for the drafting and the adoption of such constitution requires Congress to act within 60 days. 

Regrettably, this window of time does not reflect the current realities as to the pace at which legislation of this nature would typically advance through the Congress, particularly with respect to recent experiences associated with bills pending in the other body, 

the U.S. Senate. 

Another consideration we are called to take into account is the 

amount that any congressional modification would have on the 

views of the voters in the Virgin Islands, whose constitution this 

is, and who will ultimately be called upon to approve or disapprove 

of it via referendum. In considering these circumstances, I am 

mindful of the words shared by the former Chairman of the Senate 

Energy and Natural Resources Committee, The Honorable J. Bennett Johnston of Louisiana, who when speaking at the hearing to 

approve the fourth proposed Virgin Islands constitution, said rather simply and straightforwardly, and I quote, ‘‘This constitution 

should be the product of the people of the Virgin Islands, and I believe that we should defer to them,’’ 

3 

His words are as relevant today with respect to the fifth constitution before us as they were with respect to the fourth constitution 

before Congress in 1981. Both documents have risen under the 

same process, so we must therefore take care not to substitute our 

judgment for those of the people who were elected to draft the constitution on behalf of the people who elected them, less the principle of self-government be trampled upon. 

As we hear from our witnesses today, including from a number 

of whom helped draft the constitution, it is my hope that a consensus will emerge on the best way forward, given the time constraints we are under and the limitations in getting legislation 

here in Congress duly acted upon without delay by the other body. 

I know that the people of the Virgin Islands want to have their 

own constitution, as evidenced by the decades worth of attempts 

that they have made to secure one. While this constitution may not 

be a perfect document, and this committee will go on record acknowledging its legal imperfections, it nonetheless is a product of 

a significant amount of hard work and, as such, deserves our most 

serious and careful attention, as well as that of the people of the 

Virgin Islands, who will ultimately be called upon to approve or 

disapprove it, irrespective of whether Congress takes any action on 

it or not. 

And finally, I want to thank the Governor and the other leaders 

who have submitted testimonies for our consideration. I also want 

to extend my sincerest welcome to those who have traveled from 

the Virgin Islands to be with us today. And I also acknowledge the 

steadfast leadership provided by your Member of Congress, our 

good friend, the distinguished gentlewoman, Dr. Donna 

Christensen. She is an ardent guardian of self-government and 

seeks at every opportunity to protect and advance the fundamental 

political rights of the people of the territories. 

This committee continues to value her leadership on these issues, 

and I know we will deliberate on this particular matter with appropriate deference to her insight. And so with that, we look forward 

to the testimonies. 

[The prepared statement of Chairwoman Bordallo follows:] 

Statement of The Honorable Madeleine Z. Bordallo, Chairwoman, 

Subcommittee on Insular Affairs, Oceans and Wildlife 

The Subcommittee is meeting today to hear testimony on the proposed constitution of the United States Virgin Islands submitted by the 5th Virgin Islands Constitutional Commission. 

The United States Virgin Islands, like the Congressional District I have the privilege to represent here in Congress—Guam—are the only two U.S. jurisdictions that 

are not governed by a Constitution written by the people. Both areas are governed 

by an Organic Act that was written by Congress. 

To more firmly enable both jurisdictions to write their own Constitutions, Congress, in 1976, enacted legislation sponsored by former Virgin Islands Delegate, 

Congressman Ron de Lugo, and one of my predecessors, the late Congressman Antonio B. Won Pat, to authorize the people of the Virgin Islands and Guam to convene 

constitutional conventions and write their own local constitutions. The law, U.S. 

Public Law 94-528, sets out a process for federal review of any proposed constitution, including 60 day periods for both Presidential and Congressional review, respectively. 

The Virgin Islands has on four previous occasions, written constitutions, two pursuant to local law and two in accordance with U.S. Public Law 94-528. The first attempt, in 1964 was not approved in its entirety by Congress and the second in 1971 

was never submitted to Congress because of the low level of voter support when it 

4 

was submitted to the people of the territory for their approval. The third draft constitution was submitted to Congress in 1978 but was rejected by the voters when 

it was returned to them without having been amended. A fourth proposed constitution was drafted in 1980. Congress approved that document via a joint resolution 

in 1981 but it too was rejected by the voters: which brings us to the current document before us today. 

The law that authorized the writing of a Constitution by the Virgin Islands and 

Guam empowers Congress with the ability to amend or clarify the said constitutions 

should we see fit. Congress could also allow a proposed constitution to be returned 

to the residents of either territory for approval by the voters without changing the 

document in any way as was done by the 96th Congress with the third proposed 

Virgin Islands constitution. 

In submitting the fifth proposed constitution to Congress, President Obama included for our consideration a legal memorandum from the United States Department of Justice which outlines at least eight areas in the proposed constitution that 

the Department believes should either be removed from the constitution or modified. 

We suspect the witness for the Department of Justice will elaborate on this further. 

The principal question confronting this Committee and Congress is whether or not 

we will be able to modify or amend the draft constitution to conform to the recommendations of the Justice Department. In examining this question we are mindful that the law authorizing this process for drafting and adoption of such Constitution requires Congress to act within 60 days. Regrettably, this window of time does 

not reflect the current realities as to the pace at which legislation of this nature 

would typically advance through Congress, particularly with respect to recent experiences associated with bills pending in the other body. 

Another consideration we are called to take into account is the impact any Congressional modification would have on the view of the voters in the Virgin Islands 

whose Constitution this is, and who will ultimately be called upon to approve or disapprove of it via referendum. In considering these circumstances, I am mindful of 

the words shared by the former Chairman of the Senate Energy and Natural Resources Committee, The Honorable J. Bennett Johnston of Louisiana, who, when 

speaking at the hearing to approve the fourth proposed Virgin Islands constitution, 

said rather simply and straightforwardly—quote—‘‘This constitution should be the 

product of the people of the Virgin Islands and I believe that we should defer to 

them.’’ End quote. 

His words are as relevant today with respect to the fifth constitution before us 

as they were with respect to the fourth constitution before Congress in 1981; both 

have risen under the same process. We must, therefore, take care not to substitute 

our judgment for those of the people who were elected to draft the constitution on 

behalf of the people who elected them, lest the principle of self-government be trampled upon. 

As we hear from our witnesses today, including a number of whom helped draft 

the constitution, it is my hope that a consensus will emerge as to the best way forward given the time constraints we are under and the limitations in getting legislation duly acted upon without delay by the other body. 

I know that the people of the Virgin Islands want to have their own constitution 

as evidenced by the decades worth of attempts they have made to secure one. While 

this constitution may not be a perfect document, and this committee will go on 

record acknowledging its legal imperfections, it nonetheless is a product of a significant amount of hard work and as such deserves our most serious, careful attention 

as well as that of the people of the Virgin Islands who will ultimately be called upon 

to approve or disapprove it irrespective of whether Congress takes any action on it 

or not. 

Finally, I want to thank the Governor and other leaders who have submitted testimony for our consideration. I also want to extend my sincerest welcome to those 

that have traveled from the Virgin Islands to be with us today. I also want to acknowledge the steadfast leadership provided by your Member of Congress, our good 

friend, the distinguished gentlewoman, Dr. Donna Christensen. She is an ardent 

guardian of self-government and seeks at every opportunity to protect and advance 

the fundamental, political rights of the people of the territories. This Committee will 

continue to value her leadership on these issues, and I know will deliberate on this 

particular matter with appropriate deference to her insight. With that, I look forward to the testimonies. 

5 

Ms. BORDALLO. I would like at this time now to recognize the 

Representative from the Virgin Islands, The Honorable Donna 

Christensen. 

STATEMENT OF HON. DONNA CHRISTENSEN, A DELEGATE IN 

CONGRESS FROM THE TERRITORY OF THE VIRGIN ISLANDS 

Mrs. CHRISTENSEN. Thank you, Madame Chair, and thank you 

for holding this hearing on the proposed constitution for the United 

States Virgin Islands. I just regret that we were unable to hold this 

hearing in the territory as first planned. It is my pleasure also to 

welcome the Governor of the U.S. Virgin Islands, The Honorable 

John P. deJongh, Jr., in his first appearance before our Subcommittee, as well as the Minority Leader of the 28th Legislature 

of the Virgin Islands, Senator Usie Richards, and the President of 

the Fifth Constitutional Convention, Gerard Luz James II, and all 

of the other delegates of the Fifth Constitution who are here today, 

and their staff, to discuss the draft document before Congress. 

Welcome also to Deputy Assistant Attorney General Jonathan 

Cedarbaum, and all of the Virgin Islanders who have joined us 

here in the audience to witness the hearing, as well as those who 

are listening on the web, television, or radio in the Virgin Islands 

or elsewhere. 

It has been almost 30 years since the people of the Virgin Islands 

last embarked upon the process of drafting a constitution to oversee the governance of our lives as a proud people of the United 

States Virgin Islands. As we are here to consider this proposed 

Fifth Constitution, many of the issues that were of concern 30 

years ago are still of concern today. 

In particular, some sores that have been festering for all of those 

years have been opened once again, and so I am not, and none of 

us should be, surprised that this opportunity became one to 

attempt to address historic injustices and inequities, valued 

ancestry, culture, and tradition, and some of the yet unresolved 

issues surrounding political status. 

One may legitimately argue whether they properly belonged in 

this convention, where a constitution was being drafted for an incorporated territory. But when a people embark on an effort of selfdetermination at any level, some of these issues will arise. I acknowledge and appreciate that as elected delegates to the constitution, each has worked hard to reflect the wishes of the Virgin 

Islands electorate. And while there may be differences and disagreements, I feel their goal has always been to craft a document 

that reflects the collective views of the majority of the people of the 

Virgin Islands. 

On the other hand, though, I am conflicted because I do fundamentally believe that we owe the people of the Virgin Islands a 

document that is constitutionally sound within the context of our 

current relationship with the United States of America, as dictated 

by the authorizing legislation. The Justice Department representative will give its review findings in this regard. 

But I also respect the process by which all of the people of the 

Virgin Islands who are eligible had the opportunity to vote and 

elect 30 individuals who they vested with the responsibility of creating a document that would reflect their wishes, positions, hopes, 

6 

and aspirations. And as happens here, the vote of the majority determines the outcome. 

The Subcommittee and I look forward to hearing your thoughts, 

reflections, and positions on the process and the provisions each of 

you deem important to the document. This Congress will give every 

consideration to what is presented to us here today and to the written testimony that will be submitted. It is my hope that this fifth 

attempt at drafting a constitution for the United States Virgin 

Islands, amended or not by us, or amended or not by a reconvened 

convention, that it will pass muster with the people of the Virgin 

Islands, and that we will have our own constitution at long last. 

At the point at which we adopt this constitution, or not, it seems 

clear to me that we can and must then revisit the issue of status. 

This process has shown the benefits and limitations of being an incorporated territory. Surely it can be the impetus and the basis for 

us to move forward with that more complex discussion. I am grateful to our Chairwoman for her legislation, which seeks to provide 

funding to help us with that process. 

Again, I want to welcome everyone who is here to testify on this 

issue of great importance to the people of the Virgin Islands. I look 

forward to your testimony. And, Madame Chair, at this time I 

would like to ask unanimous consent to enter statements from 

Caroline Brown and Gaylord Sprauve to be entered into the record. 

Ms. BORDALLO. No objection, so ordered. 

Mrs. CHRISTENSEN. Thank you. 

[NOTE: The statements submitted for the record have 

been retained in the Committee’s official files.] 

Ms. BORDALLO. I thank the gentlelady from the Virgin Islands 

for her statement. And now I would like to recognize the acting 

Ranking Member from Alaska, the gentleman Mr. Young. 

STATEMENT OF HON. DON YOUNG, A REPRESENTATIVE IN 

CONGRESS FROM THE STATE OF ALASKA 

Mr. YOUNG. Thank you, Madame Chairman, and thank you for 

having these hearings. I want to submit for the record my statement. I am here to listen to the witnesses and ask questions down 

the line. With that, Madame Chairman, I will yield back the balance of my time. 

Ms. BORDALLO. No objection, so ordered to enter your statement. 

[The prepared statement of Mr. Young follows:] 

Statement of The Honorable Don Young, a Representative in Congress 

from the State of Alaska 

Madam Chairwoman, good afternoon. Today’s hearing topic is the draft U.S. Virgin Islands constitution. This is the 5th draft constitution developed by a U.S. Virgin Islands Constitutional Convention and many of the witnesses here today were 

members of this Convention and can give us some insight into the development of 

the constitution. 

The U.S. Constitution, specifically, the Territories Clause, gives Congress the authority to govern territories. However, this does not mean that this authority should 

remain in perpetuity. Congress should assist the territories in developing and 

achieving to the greatest extent possible, as adopted and agreed to by their populace, territorial self-governance. 

Congress has passed an Organic Act and other laws for the U.S. Virgin Islands, 

which have started the process of greater self-governance in the territory. However, 

these laws have been drafted by Congress and can only be changed by Congress. 

A constitution, if adopted by the U.S. Virgin Islands electorate, would allow the 

7 

territory greater self-governance through its ability to amend its constitution based 

on territorial needs, without Congressional action. 

However, there are concerns with the submitted draft constitution. There are 

questions as to whether the document sufficiently recognizes U.S. sovereignty and 

the supremacy of certain provisions of the Constitution, treaties, and laws of the 

United States. In addition, there are a number of sections in the constitution that 

raise equal protection concerns. 

Congress, under Public Law 94-584, gave itself 60 legislative days to amend, modify or approve a constitution developed by U.S. Virgin Islands. If we do not act within this time frame, the constitution is deemed to be approved. I want to stress, that 

if Congress does not act, it should not be interpreted as an endorsement of any of 

the provisions that have raised constitutional concerns. If the U.S. Virgin Islands 

electorate votes to adopt the constitution, the concerns raised by the Justice Department will need to be resolved through federal legislation. 

Thank you, Madam Chairwoman. 

Ms. BORDALLO. And I would just like to introduce the gentleman 

from Puerto Rico, Mr. Pedro Pierluisi. There will be questions later, 

and also Mr. Kilili Sablan from the CNMI. Both have joined us. 

And now we begin with our first group of witnesses, Mr. Jonathan G. Cedarbaum, Deputy Assistant Attorney General, Office of 

Legal Counsel, United States Department of Justice. And the next 

witness is The Honorable John P. deJongh, Governor of the United 

States Virgin Islands. Welcome, Governor. And The Honorable Usie 

R. Richards, the Minority Leader of the 28th Legislature of the 

Virgin Islands. I welcome you as well. And The Honorable Gerard 

Luz James II, the President of the Fifth Constitutional Convention. 

And coincidentally, I would note that Mr. James and I served as 

Lieutenant Governors together in the 1990s. And welcome to you, 

Lieutenant Governor. 

I want to thank you all and to remind you that there is a red 

timing light on the table, which will indicate when your time is 

concluded. And we would appreciate your cooperation in complying 

with the limits that have been set, as we have many witnesses to 

hear from today. But be assured that your full written statement 

will be submitted for the hearing record. 

I would like to mention to the Governors and the elected officials 

of the Virgin Islands, if you go a few minutes over the five minutes, 

we will not mind that. I was once a Lieutenant Governor. 

Mr. Cedarbaum, we will begin with your testimony. Thank you 

for your presence today on behalf of the Administration, and you 

now may begin. 

STATEMENT OF JONATHAN G. CEDARBAUM, DEPUTY ASSISTANT ATTORNEY GENERAL, OFFICE OF LEGAL COUNSEL, U.S. 

DEPARTMENT OF JUSTICE 

Mr. CEDARBAUM. Thank you, Chairwoman Bordallo, acting Ranking Member Young, and other members of the Subcommittee. My 

name is Jonathan Cedarbaum. I am a deputy assistant attorney 

general in the office of legal counsel at the Department of Justice. 

I am honored to appear before you this afternoon to discuss the 

proposed constitution for the U.S. Virgin Islands, which was recently drafted by a constitutional convention in the Virgin Islands. 

As you know, and as the Chairwoman indicated, Public Law 94- 

584 establishes a process by which the people of the U.S. Virgin 

Islands can adopt a constitution for their own local self-government. In accord with that process, the Fifth Constitutional ConvenVerDate Nov 24 2008 16:04 Jun 18, 2010 Jkt 000000 PO 00000 Frm 00011 Fmt 6633 Sfmt 6602 L:\DOCS\55534.TXT Hresour1 PsN: KATHY
8 

tion of the U.S. Virgin Islands drafted a proposed constitution last 

year and submitted it to the Governor of the Virgin Islands. The 

Governor forwarded the proposed constitution to President Obama. 

President Obama then transmitted the proposed constitution to 

Congress with his comments. 

As President Obama stated in his letter of transmittal, the electorate of the Virgin Islands and its governmental representatives 

are to be commended for their continuing commitment to increasing self-government and the rule of law. As the President also indicated in his letter of transmittal, in carrying out his responsibilities 

under Public Law 94-584, he asked the Department of Justice, in 

consultation with the Department of the Interior, to write its views 

about the proposed constitution. 

The Department provided those views in the form of a memorandum from the Assistant Attorney General for Legislative Affairs 

to the Office of Management and Budget, and the President attached the copy of the Department’s memorandum to his letter of 

transmittal. 

As the President noted, and as the Chairwoman noted, the Department of Justice’s memorandum analyzed several features of 

the proposed constitution, including, first, the absence of an express recognition of United States sovereignty and the supremacy 

of Federal law; second, provisions for a special election on the 

USVI’s territorial status; third, provisions conferring legal advantages on certain groups defined by place and timing of birth, timing 

of residency, or ancestry; fourth, residence requirements for certain 

offices; fifth, provisions guaranteeing legislative representation of 

certain geographic areas; sixth, provisions addressing territorial 

waters and marine resources; seventh, imprecise language in certain provisions of the proposed constitution’s bill of rights; eighth, 

the possible need to repeal certain Federal laws if the proposed 

USVI constitution were adopted; and ninth, the effect of congressional action or inaction on the proposed constitution. 

I would be happy to address any of these issues with you this 

afternoon. I should emphasize that our review was restricted to 

legal issues in light of the requirements of Public Law 94-548. The 

Department’s memorandum does not address any questions of policy. Because I trust you have had some opportunity to review the 

Department’s memorandum in advance of today’s hearing, I will 

not attempt to summarize it in this opening statement. I would 

just briefly highlight three issues to which the Department suggested that changes in the proposed constitution might be considered. 

First, several provisions of the proposed constitution give special 

advantages to native Virgin Islanders and ancestral native Virgin 

Islanders. These provisions raise serious concerns under the Equal 

Protection Guarantee of the U.S. Constitution, which has been 

made applicable to the Virgin Islands by the revised Organic Act. 

Because we find it difficult to discern a legitimate governmental 

purpose that would be rationally advanced by these provisions, we 

recommend that they be removed. 

Second, the proposed constitution imposes substantial residence 

requirements on a number of USVI offices. In particular, it requires the Governor and Lieutenant Governor, judges and justices 

9 

of the USVI Supreme Court and lower court, and the attorney general, inspector general, and members of the Political Status Advisory Commission to have been USVI residents for periods ranging 

from 5 to 15 years. These requirements, particularly those requiring more than five years raise potential equal protection concerns. 

Thus we would suggest that consideration be given to shortening 

their duration. 

Third, Article 12, Section 2 of the proposed constitution concerning preservation of natural resources, makes a number of assertions about USVI sovereignty or control over waters and submerged lands. The intended meaning and effect of this provision 

are not entirely clear, but to the extent that its reference to a claim 

of sovereignty over coastal waters is intended to derogate from the 

sovereignty of the United States over those waters, it is inconsistent with Federal law and should be removed or modified. 

In addition, by statute, the United States has, subject to certain 

exceptions, conveyed to the USVI its right, title, and interest in 

submerged lands, and mineral rights in those submerged lands out 

to three miles. Federal law also reserves to the United States exclusive management rights over fisheries within the exclusive economic zone. The proposed constitution must be made consistent 

with these Federal statutory mandates. 

Finally, while the last sentence of Article 12, Section 2 acknowledges that the rights it addresses are alienable, we recommend 

modifying that language to make clearer that these matters are 

subject to Congress’s plenary authority. 

I would like to emphasize that my statement has focused on 

three aspects of the proposed constitution that we believe Congress 

should consider revising because we believe that discussing those 

provisions would be most helpful to the Subcommittee as it considers what actions to take in response to the transmittal of the 

proposed constitution. 

Let me close by again echoing President Obama’s letter of transmittal and commending the electorate of the Virgin Islands and its 

governmental representatives in their continuing commitment to 

increasing self-government and the rule of law. I would be happy 

to address any questions you may have, and I would be grateful if 

the Department’s memorandum could be inserted in the record of 

this hearing immediately following this statement. 

Ms. BORDALLO. No objection to that. So ordered. 

[The prepared statement of Mr. Cedarbaum follows:] 

Statement of Jonathan G. Cedarbaum, Deputy Assistant Attorney General, 

U.S. Department of Justice 

Chairwoman Bordallo, Ranking Member Brown, Members of the Subcommittee: 

My name is Jonathan Cedarbaum. I am a Deputy Assistant Attorney General in 

the Office of Legal Counsel at the Department of Justice. I am honored to appear 

before you this afternoon to discuss the proposed constitution for the U.S. Virgin 

Islands (‘‘USVI’’) recently drafted by a constitutional convention in the Virgin 

Islands. 

As you know, Public Law 94-584 establishes a process by which the people of the 

U.S. Virgin Islands can adopt a constitution for their local self-government. In accord with that process, the Fifth Constitutional Convention of the U.S. Virgin 

Islands drafted a proposed constitution last year and submitted it to the Governor 

of the Virgin Islands. The Governor forwarded the proposed constitution to President Obama. President Obama then transmitted the draft. Constitution to the Congress with his comments. As the President indicated in his letter of transmittal, in 

10 

1The third prong of this definition appears circular insofar as it defines ‘‘Ancestral Native Virgin Islander’’ in terms of descendants of ‘‘Ancestral Native Virgin Islanders’’ (a category of people already encompassed by the definition’s second prong), and it is also grammatically ambiguous with respect to whether the qualifying terms modify the ‘‘descendants’’ or the ‘‘Ancestral 

Native Virgin Islander’’ from whom they are descended. 

We think it clear that these classifications could not be considered tribal within the meaning 

of the Indian Commerce Clause, U.S. Const. art. I, § 8, el. 3, that is, as falling within the established body of law defining the special relationship between aboriginal peoples of the United 

States and the Federal Government. In any event, that Clause empowers Congress, not the government of the Virgin Islands. 

carrying out his responsibilities under Public Law 94-584 he asked the Department 

of Justice, in consultation with the Department of the Interior, to provide its views 

of the proposed constitution. The Department provided those views in the form of 

a memorandum from the Assistant Attorney General for Legislative Affairs to the 

Office of Management and Budget, and the President attached a copy of the Department’s memorandum to his letter of transmittal. 

As the President also noted, the Department of Justice’s memorandum analyzed 

several features of the proposed constitution, including: (1) the absence of an express recognition of United States sovereignty and the supremacy of federal law; (2) 

provisions for a special election on the USVI’s territorial status; (3) provisions conferring legal advantages on certain groups defined by place and timing of birth, timing of residency, or ancestry; (4) residence requirements for certain offices; (5) provisions guaranteeing legislative representation of certain geographic areas; (6) provisions addressing territorial waters and marine resources; (7) imprecise language 

incertain provisions of the proposed constitution’s bill of rights; (8) the possible need 

to repeal certain federal laws if the proposed USVI constitution is adopted; and (9) 

the effect of congressional action or inaction on the proposed constitution. I would 

be happy to address any of these issues with you this afternoon. I should emphasize 

that our review was limited to a review of legal issues in light of the requirements 

established by Public Law 94-548. The Department’s memorandum does not address 

any questions of policy. 

Because I trust you have had some opportunity to review the Department’s memorandum in advance of today’s hearing, I will not attempt to summarize in this opening statement the analysis it provides of all of these issues. I would just briefly discuss the three issues as to which the Department suggested that changes in the proposed constitution should be considered. 

A. Provisions Concerning ‘‘Native Virgin Islanders’’ and ‘‘Ancestral Native 

Virgin Islanders’’ 

First, several provisions of the proposed constitution give special advantages to 

‘‘Native Virgin Islanders’’ and ‘‘Ancestral Native Virgin Islanders.’’ These provisions 

raise serious concerns under the equal protection guarantee of the U.S. Constitution, which has been made applicable to the USVI by the Revised Organic Act, see 

48 U.S.C. § 1561 (2006). Because we find it difficult to discern a legitimate governmental purpose that would be rationally advanced by these provisions conferring 

legal advantages on certain groups defined by place and timing of birth, timing of 

residency, or ancestry, we recommend that these provisions be removed from the 

proposed constitution. 

In Article III, section 2, the proposed constitution would define ‘‘Native Virgin 

Islander’’ to mean (1) ‘‘a person born in the Virgin Islands after June 28, 1932,’’ the 

enactment date of a statute generally extending United States citizenship to USVI 

natives residing in United States territory as of that date who were not citizens or 

subjects of any foreign country, see Act of June 28, 1932, ch. 283, 47 Stat. 336 (now 

codified at 8 U.S.C. 1406(a)(4) (2006)); and (2) a ‘‘descendant[] of a person born in 

the Virgin Islands after June 28, 1932.’’ ‘‘Ancestral Native Virgin Islander’’ would 

be defined as: (1) ‘‘a person born or domiciled in the Virgin Islands prior to and including June 28, 1932 and not a citizen of a foreign country pursuant to 8 U.S.C. 

[§ ] 1406,’’ the statute governing United States citizenship of USVI residents and natives; (2) ‘‘descendants’’ of such individuals; and (3) ‘‘descendants of an Ancestral 

Native Virgin Islander residing outside of the U.S., its territories and possessions 

between January 17, 1917 and June 28, 1932, not subject to the jurisdiction of the 

U.S. and who are not a citizens [sic] or a subjects [sic] of any foreign country.’’ Proposed Const, art. III, § 1. 1

1. Property Tax Exemption for Ancestral Native Virgin Islanders 

Under the proposed constitution, the USVI legislature would be authorized to impose real property taxes, but ‘‘[n]o Real Property tax shall be assessed on the primary residence or undeveloped land of an Ancestral Native Virgin Islander.’’ ProVerDate Nov 24 2008 16:04 Jun 18, 2010 Jkt 000000 PO 00000 Frm 00014 Fmt 6633 Sfmt 6621 L:\DOCS\55534.TXT Hresour1 PsN: KATHY
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2See also, e.g., Government of the Virgin Islands v. Davis, 561 F.3d 159, 163-64 n.3 (3d. Cir. 

2009) (recognizing applicability of the Fifth and Fourteenth Amendment Due Process Clauses 

to the USVI under the Revised Organic Act); Hendrickson v. Reg 0 Co., 657 F.2d 9, 13 n.2 (3d 

Cir. 1981) (same); Moolenaar v. Todman, 433 F.2d 359, 359 (3d Cir. 1970) (per curiam) (requiring adherence to ‘‘the constitutional requirements of equal protection of the law’’ in the USVI). 3See also, e.g., Att’y Gen. of N.Y. v. Soto-Lopez, 476 U.S. 898, 909, 911 (1986) (plurality opinion) (applying heightened scrutiny to invalidate civil service employment preference limited to 

veterans who lived ’in the state when they entered the armed forces); id. at 913 (Burger, C.J., 

concurring in judgment) (same under rational basis review); Bunyan v. Camacho, 770 F.2d 773, 

776 (9th Cir. 1985) (invalidating law enacted by Guam legislature awarding certain retirement 

credits for higher education degrees to Guam civil servants only if they resided in Guam before 

pursuing the degree). 

posed Const. art. XI, § 5(g). The property tax exemption for Ancestral Native Virgin 

Islanders raises serious equal protection concerns. The Equal Protection Clause of 

the Fourteenth Amendment, which has been extended to the USVI by statute, see 

48 U.S.C. § 1561 (2006), 2 generally requires only that legislative classifications be 

rationally related to a legitimate governmental purpose. See, e.g., Heller v. Doe, 509 

U.S. 312, 319-20 (1993). But the proposed constitution does not identify a legitimate 

governmental purpose that the real property tax exemption for Ancestral Native 

Virgin Islanders would further, and it is difficult for us to discern a legitimate governmental purpose that the exemption could be said to further. 

The definition of Ancestral Native Virgin Islander appears to combine two subclasses: (i) individuals born or domiciled in the USVI before a certain date and (ii) 

descendants of such persons. The first sub-class may include many long-time residents of the USVI, but to the extent the real property tax exemption is designed 

to benefit such long-time residents it raises serious equal protection concerns. The 

Supreme Court has held that statutes limiting benefits, including property tax exemptions, to citizens residing in a jurisdiction before a specified date are not rationally related to any legitimate governmental purpose. For example, in Hooper v. 

Bernalillo County Assessor, 472 U.S. 612 (1985), the Court held that a New Mexico 

property tax exemption applicable only to Vietnam War veterans who resided in the 

state before a certain date violated equal protection by ‘‘creat[ing] two tiers of resident Vietnam veterans, identifying resident veterans who settled in the State after 

May 8, 1976, as in a sense ‘second-class citizens. ’ Id. at 623. Explaining that ‘‘singling out previous residents for the tax exemption[] [and] reward[ing] only those 

citizens for their ‘past contributions’ toward our Nation’s military effort in Vietnam’’ 

was ‘‘not a legitimate state purpose,’’ the Court held that the tax exemption violated 

the Equal Protection Clause by ‘‘creat[ing] fixed, permanent distinctions...between...classes of concededly bona tide residents. ’ id. at 622-23 (quoting 

Zobel v. Williams, 457 U.S. 55, 59 (1982)). 3

Moreover, even as to this sub-class, the real property tax exemption proposed here 

appears to be even less constitutionally justifiable than benefits for long-time residents. In Nordlinger v. Hahn, 505 U.S. 1 (1992), the Supreme Court upheld a California real property valuation system that disfavored newer purchasers (though not 

necessarily newer or longer-term residents), and the Court recognized as legitimate 

two governmental interests for such a system: ‘‘local neighborhood preservation, continuity, and stability,’’ id. at 12, and honoring the reliance interests of long-time 

property owners, id. at 12-13. To the extent that those interests might be offered 

in defense of tax benefits for long-time residents or property owners, they cannot 

justify the real property tax exemption for Ancestral Native Virgin Islanders. Neither of those interests appears to be rationally furthered by the first sub-class included in the proposed property tax exemption for Ancestral Native Virgin Islanders 

because membership in that sub-class is defined neither by length of residence nor 

even by length of property ownership in the USVI, but simply by having been born 

or having lived in the USVI many years ago. Thus, for example, an individual born 

in the USVI on June 28, 1932, who left the Islands the following year and who 

moved back to the Islands and bought a home there 50 years later (or who simply 

bought an undeveloped piece of land there 50 years later) would be entitled to immunity from real property taxes even though an individual who had spent his or 

her whole life in the USVI and had owned the same home there for the past 50 

years, but who had been born there of parents who had arrived in the USVI as immigrants on June 29, 1932, would not be so shielded. How a system permitting this 

kind of discrimination could be said to further neighborhood stability or reliance interests of long-time property owners is unclear. 

The second sub-class benefitted by the real property exemption for Ancestral Native Virgin Islanders also seems. difficult to justify as furthering a legitimate governmental interest, for the second sub-class is defined simply by parentage or ancestry. We need not delve into whether this use of ‘‘ancestry’’ in classifying citizens 

12 

4The right to vote on such amendments does not appear to be limited to these groups, as the 

same provision requires that amendments be submitted ‘‘to the electors of the Virgin Islands.’’ 

Proposed Const. art. XVIII, § 7. Although the term ‘‘electors of the Virgin Islands’’ is undefined, 

the proposed constitution elsewhere provides that ‘‘[e]very citizen of the United States and the 

Virgin Islands eighteen (18) years of age or older and registered to vote in the Virgin Islands 

shall have the right to vote.’’ Id. art. IV, § 1. The separate provisions establishing special voting 

rights and opportunities for Ancestral Native Virgin Islanders and Native Virgin Islanders suggest that the term ‘‘electors of the Virgin Islands’’ refers to the broader group of eligible voters. 5 5 Cf. Soto-Lopez, 476 U.S. at 915 (Burger, C.J., concurring in judgment) (discussing ‘‘irrationality’’ of law that ‘‘would grant a civil service hiring preference to a serviceman entering the 

military while a resident of [the state] even if he was a resident only for a day,’’ but that would 

deny the preference to a veteran ‘‘who was a resident of [the state] for over 10 years before applying for a civil service position’’); Dunn, 405 U.S. at 360 (concluding that the state interest 

in ‘‘knowledgeable’’ voters did not justify a durational residence requirement for voting because 

‘‘there is simply too attenuated a relationship between the state interest in an informed electorate and the fixed requirement that voters must have been residents in the State for a year 

and the county for three months’’); Kramer v. Union Free School Dist. No. 15, 395 U.S. 621, 

632 (1969) (rejecting, under strict scrutiny, restrictions on franchise for school board elections 

because ‘‘[t]he classifications in [the statute] permit inclusion of many persons who have, at 

best, a remote and indirect interest in school affairs and, on the other hand, exclude others who 

have a distinct and direct interest in the school meeting decisions’’). 

would be deemed ‘‘suspect’’ and thus subject to heightened scrutiny under the Fourteenth Amendment. See, e.g., Mass. Bd. of Retirement v. Murgia, 427 U.S. 307, 312 

& n.4 (1976) (per curiam) (identifying alienage, race, and ancestry as classifications 

subject to strict scrutiny). Again, it is unclear to us what legitimate governmental 

purpose would support favoring so starkly the descendants of individuals born or 

resident long ago in the USVI regardless of the descendants’ own connections (or 

lack thereof) to the Islands. 

2. Provisions on Voting and Office-Holding Favoring Native Virgin Islanders and 

Ancestral Native Virgin Islanders 

Provisions in the proposed constitution that limit certain offices and the right to 

vote in certain elections to Native Virgin Islanders and Ancestral Native Virgin 

Islanders or that guarantee members of those groups the right to participate in certain elections present similar issues. Under the proposed constitution, the positions 

of Governor and Lieutenant Governor would be open only to members these groups, 

see Proposed Const. art. VI, § 3(d), as would service on the Political Status Advisory 

Commission, an eleven-member body composed of four appointed members and 

seven elected members that would promote awareness of the USVI’s political status 

options and advise the Governor and legislature on ‘‘methods to achieve a full measure of self-government.’’ Id. art. XVII, § § 1(b), 3. The special election on ‘‘status and 

federal relations options’’ provided for under the proposed constitution would be ‘‘reserved for vote by Ancestral Native and Native Virgin Islanders only, whether residing within or outside the territory.’’ Id. art. XVII, § 2. And the proposed constitution 

would guarantee that ‘‘Ancestral and Native Virgin Islanders, including those who 

reside outside of the Virgin Islands or in the military, shall have the opportunity 

to vote on’’ amendments to the USVI constitution. Id art. XVIII, § 7. 4

The provisions concerning eligibility to vote in certain elections raise equal protection concerns. To the extent one might attempt to justify the limitation on the electorate for the special election on status options as akin to a durational residence 

requirement, we believe it is too restrictive to be so justified. Although the Supreme 

Court has upheld a very brief residential limitation on eligibility to vote in one instance based on a state’s legitimate interest in ‘‘prepar[ing] adequate voter records 

and protect[ing] its electoral processes from possible frauds,’’ Marston v. Lewis, 410 

U.S. 679, 680 (1973) (per curiam) (upholding 50-day durational residence requirement), it has held that even a requirement of one year’s residence for voting, as opposed to office-holding, violates constitutional equal protection guarantees. See 

Dunn v. Blumstein, 405 U.S. 330, 360 (1972) (invalidating state’s requirement that 

voters have resided in the state for one year and the county for three months). 

Moreover, the classifications here are not based on length of residence, and their 

effects appear potentially arbitrary. As I discussed earlier, the categories of Ancestral Native Virgin Islanders and Native Virgin Islanders are based simply on place 

and timing of birth, the fact of having resided in the USVI before a certain date 

regardless of for how brief a time, or ancestry, regardless of the individual’s own 

connection to the USVI. Thus, they could prohibit, for example, a foreign-born but 

life-long resident of the USVI from voting on political status, but would permit any 

qualifying ancestral descendant, including those who have never lived in the USVI, 

to do so. 5

13 

6See, e.g., May v. Town of Mountain Village, 132 F.3d 576, 583 (10th Cir. 1997) (upholding 

inclusion of nonresident property owners in town electorate because such voters ‘‘have a substantial interest in township elections’’); Board of County Commissioners of Shelby County, 

Tenn. v. Burson, 121 F.3d 244, 248-51 (6th Cir. 1997) (deeming participation of city voters in 

county school board elections irrational and thus impermissible under Fourteenth Amendment 

where city voters had their own independent school board and lacked a substantial interest in 

county school board elections); Hogencamp v. Lee County Bd. of Educ., 722 F.2d 720, 722 (11th 

Cir. 1984) (deeming city taxpayers’ contribution of 2.74% of county school board’s budget ‘‘insufficient by itself to create a substantial interest in the city residents’’ justifying their participation in county school board elections). 7 Because we conclude that the restrictions on voting present clear equal protection concerns 

under the Fourteenth Amendment, we need not consider whether they may also violate the Fifteenth Amendment’s prohibition on denial or abridgement of the right to vote ‘‘on account of 

race, color, or previous condition of servitude.’’ U.S. Const. amend. XV; see also 48 U.S.C. § 1561 

(extending Fifteenth Amendment to USVI). 8The proposed constitution appears ambiguous with respect to how this five-year period is determined. It provides: ‘‘There shall be an Attorney General, who shall be appointed by the Governor with the advice and consent of the Senate, and a t the time of the appointment 

must...have resided in the Virgin Islands at least five (5) years next preceding his election.’’ See 

Proposed Const. art. VI, § 10(a)(1). Given that the Attorney General would be appointed rather 

than elected, the reference to the period ‘‘next preceding his election’’ seems unclear. 

The proposed constitution’s guarantee that Native Virgin Islanders and Ancestral 

Native Virgin Islanders ‘‘resid[ing] outside of the Virgin Islands’’ may vote on 

amendments to the USVI constitution also raises equal protection concerns. Proposed Const. art. XVIII, § 7. To uphold inclusion of non-resident voters in local government elections against equal protection challenges, courts have required a showing that the non-resident voters have a ‘‘substantial interest’’ in the elections in 

question. 6 Because many non-resident Ancestral Native Virgin Islanders and Native 

Virgin Islanders may have no connection to the Islands apart from ancestry, it is 

unclear whether their inclusion in the electorate for USVI constitutional amendments would satisfy this standard. 

Finally, although the residential duration requirements for Governor and Lieutenant Governor and members of the Political Status Advisory Commission would prevent non-resident individuals who qualify as Native Virgin Islanders or Ancestral 

Native Virgin Islanders from serving in those offices, it is unclear what legitimate 

governmental purpose would be advanced by narrowing the subset of longtime residents who could hold those offices to Native Virgin Islanders and Ancestral Native 

Virgin Islanders. 

In the absence of any identified legitimate governmental interest to support such 

provisions concerning voting and office-holding based on place of birth, residence 

many decades ago, or ancestry, we would again recommend that these provisions 

be removed from the proposed constitution. 7

B. Residence Requirements for Office-Holding 

Second, the proposed constitution imposes substantial residence requirements on 

a number of USVI offices. In particular, the Governor and Lieutenant Governor 

would be required to have been ‘‘dorniciliar[ies]’’ of the USVI for at least fifteen 

years, ten of which ‘‘must immediately precede the date of filing for office,’’ Proposed 

Const. art. VI, § 3(a); judges and justices of the USVI Supreme Court and lower 

court to be established under the proposed constitution would be required to have 

been ‘‘domiciled’’ in the USVI for at least ten years ‘‘immediately preceding’’ the 

judge or justice’s appointment, id. art. VII, § 5(b); the Attorney General and Inspector General would need to have resided in the USVI for at least five.years, id. art. 

VI, §§ 10(a)(1), 11(a)(2); 8 and the members of the Political Status Advisory Commission would be required to have been ‘‘domiciliaries’’ of the USVI for ‘‘a minimum 

of five years,’’ id, art. XVII, § 1(b). In addition, the proposed constitution would 

require that USVI Senators be ‘‘domiciled’’ intheir legislative district ‘‘for at least 

one year immediately preceding the first date of filing for office.’’ Id. art. V, § 3(c). 

These requirements, particularly those requiring more than five years of residence, raise potential equal protection concerns. The Supreme Court has summarily 

affirmed three decisions upholding five- to seven-year residence requirements for 

state senators and governors, see Chimento v. Stark, 353 F. Supp. 1211, 127 

(D.N.H. 1973), aff’d, 414 U.S. 802 (1973); Kanapaux v. Ellisor (D.S.C. unreported), 

aff’d, 419 U.S. 891 (1974); Sununu v. Stark, 383 F. Supp. 1287 (D.N.H. 1974), aff’d, 

420 U.S. 958 (1975), and lower courts have upheld relatively brief durational residency requirements for state or local offices, typically applying only rational basis 

review and deeming such laws adequately justified by the governmental interest in 

14 

9See, e.g., City ofAkron v. Bell, 660 F,2d 166, 168 (6th Cir. 1981) (one-year residence requirement for city council members); MacDonald v. City of Henderson, 818 F. Supp. 303, 306 (D. Nev. 

1993) (one-year residence requirement for city council); Hankins v. Hawaii, 639 F. Supp. 1552, 

1556 (D. Hawaii 1986) (five-year residence requirement for Hawaii governor under state constitution); Schiavone v. DeStefano, 852 A.2d 862, 866-67 (Conn. Sup. Ct. 2001) (fiveyear residence requirement for city mayor); Civil Service Merit Bd of City of Knoxville v. Burson, 816 

S.W.2d 725; 734 (Tenn. 1991) (one-year residence requirement for municipal civil service 

boards); State ex rel. Brown v. Summit County Bd. of Elections, 545 N.E.2d 1256, 125960 (Ohio 

1989) (two-year residence requirement for city council); Langmeyer v. Idaho, 656 P.2d 114, 118 

(Idaho 1982) (five-year residence requirement for appointment to local planning and zoning 

board); cf. Thournir v. Meyer, 909 F.2d 408, 411 (10th Cir. 1990) (upholding under rational basis 

review state requirement that unaffiliated candidates have been registered as unaffiliated voters 

in the state for at least one year before filing for office); White v. Manchin, 318 S.E.2d 470, 488, 

491 (W.Va. 1984) (applying strict scrutiny based on the fundamental right ‘‘to become a candidate for public office’’ but upholding state constitutional requirement that state senators have 

resided in their district for at least one year before their election). 10See, e.g., Antonio v. Kirkpatrick, 579 F.2d 1147, 1151 (8th Cir. 1978) (invalidating tenyear 

residence requirement for State Auditor); Brill v, Carter, 455 F. Supp. 172, 174-75 (D. Md. 1978) 

(invalidating four-year residence requirement for members of county council); Billington v. 

Hayduk, 439 F. Supp. 975, 978-79 (S.D.N.Y;) (invalidating five-year residence requirement for 

county executive), aff’d on other grounds, 565 F.2d 824 (2d Cir. 1977); cf. Robertson v. Bartels, 

150 F. Supp. 2d 691, 696, 699 (D.N.J. 2001) (applying strict scrutiny based on ‘‘the combined 

right of persons to run for public office and the right of voters to vote for candidates of their 

choice’’ and invalidating state requirement that state legislators have resided within their legislative districts for at least one year); Peloza v. Freels, 871 P.2d 687, 691 (Alaska 1994) (applying 

heightened scrutiny under state constitution and invalidating three-year residence requirement 

for city council). 

In Clements v. Fashing, 457 U.S. 957 (1982), a plurality of the Supreme Court observed that 

‘‘the existence of barriers to a candidate’s access to the ballot ‘does not of itself compel close 

scrutiny,’’’ and that ‘‘[d]ecision in this area of constitutional adjudication is a matter of degree, 

and involves a consideration of the facts and circumstances behind the law, the interests the 

State seeks to protect by placing restrictions on candidacy, and the nature of the interests of 

those who may be burdened by the restrictions.’’ Id. at 963 (plurality opinion) (quoting Bullock 

v. Carter, 405 U.S. 134, 143 (1972)). Clements, however, did not involve durational residence 

requirements, but rather provisions requiring a waiting period or mandatory resignation before 

certain current state officeholders could seek new elective offices. See id. at 966-71. In another 

case, a concurring opinion, citing Chimento’s approval of a seven-year residence requirement for 

a state governor, suggested that residence requirements may serve legitimate purposes, but this 

opinion did not elaborate on how long a period of prior residence may be required. See Zobel, 

457 U.S. at 70 (Brennan, J., concurring) (observing that ‘‘allegiance and attachment may be rationally measured by length of residence...and allegiance and attachment may bear some rational relationship to a very limited number of legitimate state purposes’’). 11See, e.g., Hankins, 639 F. Supp, at 1556 (observing that ‘‘[t]he State has a strong interest 

in the assurance that its governor will be a person who understands the conditions of life in 

Hawaii’’ and that ‘‘[t]his concern has ‘particular relevance in a small and comparatively sparsely 

populated state’ (quoting Chimento, 353 F. Supp. at 1215)); cf. Bell, 660 F.2d at 168 (noting that 

‘‘the interests of [a state or local] governmental unit in knowledgeable candidates and knowledgeable voters may be served by differing lengths of durational residency requirements’’). 12 Cf. Clements, 457 U.S. at 963 (plurality opinion) (observing that ‘‘[d]ecision in this area of 

constitutional adjudication is a matter of degree’’); Summit County Bd. of Elections, 545 N.E.2d 

at 1260 (upholding two-year residence requirement but deeming it ‘‘conceivable that such a requirement may be too long in duration to serve a legitimate state interest’’). 

ensuring familiarity with local concerns. 9 But in some cases lower courts have 

struck down laws imposing residence requirements of five or more years on certain 

state or local offices. 10

Insofar as the territorial status and unique history and geography of the USVI 

make familiarity with local issues particularly important for office-holders there, the 

governmental interests supporting durational residence requirements for USVI offices may be particularly strong. 11 Yet at least some courts might consider the 

lengthy residence requirements hereparticularly the ten- or fifteen-year periods required for USVI judges, Governors, and Lieutenant Governors-unjustified. 12 Accordingly, we would recommend that consideration be given to shortening the ten- and 

fifteen-year residence requirements for USVI Governors, Lieutenant Governors, and 

judges. 

C. Territorial Waters, Marine Resources, and Submerged Lands 

Third, Article Xii, Section 2, concerning ‘‘Preservation of Natural Resources,’’ 

states: 

The Government shall have the power to manage, control and develop the 

natural and marine resources comprising of submerged lands, inlets, and 

cays; to reserve to itself all such rights to internal waters between the individual islands, claim sovereignty over its inter-island waters to the effect 

that the territorial waters shall extend 12 nautical miles from each island 

15 

13 After the Department of Justice had completed its memorandum, we received a copy of a 

letter from several members of the Fifth Constitutional Convention to Delegate Christensen in 

which they raised, among other things, a concern about another article in the proposed constitution addressing submerged lands. See Letter for Hon. Donna M. Christensen, from Craig 

Barshinger at al. (Jan. 29, 2010). Article XV, concerning ‘‘Protection of the Environment,’’ provides in Section 4: 

Submerged, Filled and Reclaimed Lands 

Submerged lands, filled and reclaimed lands in the Virgin Islands are public lands belonging 

collectively to the people of the Virgin Islands, and shall not be sold or transferred. The Virgin 

Islands of the United States cannot be sold or transferred. 

Because this provision comes in an Article on environmental protection and follows sections 

on establishing a land, air and water preservation commission and protecting public access to 

beaches, we understood it as directed at private owners. To the extent the second sentence could 

be read as purporting to limit Congress’s power under the Territories Clause of the Constitution, 

see U.S. Const. art. IV, sec,, to transfer the USVI, we agree that it should be amended to remove 

any ambiguity on that score. 

coast up to the international boundaries. This is an alienable right of the 

people of the Virgin Islands of the U.S. and shall be safeguarded. 

The intended meaning and effect of this provision are not entirely clear. To the 

extent that its reference to a claim of ‘‘sovereignty’’ over coastal waters is intended 

to derogate from the sovereignty of the United States over those waters, it is inconsistent with federal law and should be removed. See Proclamation No. 5928, 54 Fed. 

Reg. 777 (Jan. 9, 1989) (proclamation of U.S. territorial sea). In addition, by statute, 

the United States has, subject to certain exceptions, conveyed to the USVI its right, 

title, and interest in submerged lands and mineral rights in those submerged lands 

out to three miles. See 48 U.S.C. §§ 1705, 1706 (2006); see also, e.g., Proclamation 

No. 7399, 66 Fed. Reg. 7364 (Jan. 22, 2001) (proclamation of Virgin Islands Coral 

Reef National Monument). Any assertion of USVI control over submerged lands and 

mineral rights beyond those federal statutory limits would be inconsistent with federal law and should be removed. Federal law also reserves to the United States exclusive management rights over fisheries within the ‘‘exclusive economic zone.’’ See 

16 U.S.C. § 1811(a) (2006). Again, the proposed constitution must be made consistent with this federal statutory mandate, While the final sentence of Article Xll, 

Section 2 acknowledges that the rights it addresses are alienable, we recommend 

modifying this language to make clearer that these matters are subject to 

Congress’s plenary authority. 13

I would like to emphasize that my statement has focused on three aspects of the 

proposed constitution that we believe Congress should consider revising because we 

believed that discussing those provisions would be most helpful to the subcommittee 

as its considers what action to take in response to the transmittal of the proposed 

constitution. Let me close by echoing President Obama’s letter of transmittal in 

commending the electorate Virgin Islands and its governmental representatives in 

their continuing commitment to increasing self-government and the rule of law, 

I would be happy to address any questions you may have. I would be grateful if 

the Department’s memorandum could be inserted in the record of this hearing immediately following my statement. 

[NOTE: Memorandum submitted for the record has been retained in the 

Committee’s official files.] 

Ms. BORDALLO. Thank you, Mr. Cedarbaum, very much for your 

testimony. And I now have the privilege of recognizing the distinguished Governor from the Virgin Islands. Governor, thank you 

very much for traveling here to the Nation’s Capital, although the 

Virgin Islands does not have as long a trip as Guam does, to be 

with us. And given your standing as Governor, in keeping with the 

tradition of our Subcommittee, please know that we will be considerate of your time and appreciate your highlighting and summarizing the key points for us to consider. Please proceed. 

STATEMENT OF HON. JOHN P. deJONGH, GOVERNOR, 

U.S. VIRGIN ISLANDS 

Governor DEJONGH. Thank you. Thank you, Madame Chair. Good 

afternoon. My name is John deJongh, and I am Governor of the 

16 

United States Virgin Islands. On behalf of the people of the Virgin 

Islands, I want to thank you, Madame Chair, Ranking Member 

Young, and my friend, Delegate Christensen, for inviting me here 

to be heard on this issue of enormous political, emotional, and 

moral importance to me and to all Virgin Islanders. 

Let me begin by stating very clearly that I believe the development of a constitution for our territory is an extremely important 

milestone and goal for our citizens, and I look forward very much 

to the day when the Virgin Islands approves a constitution for all 

of the people to be proud of. 

With respect to the proposed Virgin Islands constitution that is 

before you, I am here today to reiterate my already express positions on the document, which for me has come down to a very simple and straightforward issue of civil rights. Our population hails 

from all parts of the Caribbean and all parts of the world. Those 

who are native Virgin Islanders, as well as those who come and 

live among us in the Virgin Islands, are and must be treated as 

equal, fully protected by the laws of the United States and the laws 

of the Virgin Islands. 

Virgin Islanders do not want to be treated, nor do we want our 

children treated, as second-class citizens when they come to the 

U.S. mainland, and you would not want to be treated or to have 

your children treated as second-class citizens if you or they moved 

to the United States Virgin Islands. That is why when the proposed constitution first came to me, I felt that it did not, under the 

terms of law that Congress had written, meet the standards that 

Congress had set, and indeed did not even qualify to be defined or 

treated as a constitution. It did not, could not, and does not now 

have my endorsement, my support, or my approval. And it is my 

belief and hope that it should not have your support either. 

The question then has become what do we do, how do we respond 

to a fundamentally flawed proposed constitution. I believe we must 

be guided first and foremost by the stated principle, well-said by 

our first President, George Washington, the basis for our political 

system is the right of the people to make their own constitutions 

of government. 

We the people of the Virgin Islands possess that right, formally 

conferred upon us by this body, but in truth rooted in the very sacred and inviolable American values that formed the foundation of 

our system of government that the founding fathers created over 

two centuries ago. As a native Virgin Islander, I believe with deep 

conviction the Virgin Islands will fully come into its own politically, 

economically, and culturally only when its people write and consider and ratify their own constitution, a constitution by, of, and 

for all people of the Virgin Islands. 

At the same time, I am chief executive of the government of the 

Virgin Islands. In that capacity, I swore an oath before God to support, obey, and defend both the laws of the Virgin Islands and the 

constitution and the laws of the United States. As a native Virgin 

Islander and as an American, I believe these twin obligations are 

not and cannot be inconsistent, and it is for that reason that I took 

the very strong position that the proposed constitution of the 

United States Virgin Islands presently before you is not acceptable, 

and it is, in fact, unconstitutional on its face. 

17 

First, as I referenced earlier, the proposed constitution fails to 

recognize the supremacy of the Constitution and the laws of the 

United States. The Department of Justice has concluded that despite the omission of any express recognition of U.S. constitutional 

supremacy, the proposed constitution is in substantial compliance 

with the statutory requirements. Perhaps so. But that substantial 

compliance, such as it is, does nothing to correct the political and 

the symbolic harm created by the convention’s conscious and deliberate decision not to expressly recognize the supremacy of the Constitution and laws of the country for which the Virgin Islands is a 

proud part. 

Second, the proposed constitution openly creates invidious distinctions among the people of the Virgin Islands. Third, the proposed constitution is inconsistent with the principles of one-person, 

one-vote that lies at the heart of the concept of equality in our democracy. Under the proposed constitution, the people of the Virgin 

Islands would be divided into those who carry full privileges of the 

Virgin Islands and those who do not, between those who are eligible to serve the people, and those who are not. Such classifications 

could not be more contrary to the most fundamental of all American values, the self-evident truth that all men are created equal, 

are endowed by their creator with certain inalienable right, are entitled to equal protection of the laws. 

The proposed constitution, with its carveouts and special preferences, assails these fundamental values. As a matter of U.S. constitutional law it is indefensible, as a political act it is divisive, and 

as a matter of history it is a dangerous step backwards in our centuries-long struggle, which has been joined by generations of Virgin 

Islanders for full and equal civil rights. 

In addition to speaking to you about the proposed constitution 

and highlighting those areas of grave concern to me as Governor, 

I am also here to speak to you today just as importantly about the 

next steps for the document before this committee. I want to state 

for the record with equal conviction my opinion and desires for the 

next steps in this process, which are to be exercised by this Congress. 

Congress has the authority to empower, to modify in part or in 

whole, the proposed constitution before you. Congress indeed has 

the power implicit in the statute and inherent in its legislative authority to reject the proposed constitution outright. If this should 

end up being the decision of this Congress, that we will abide by 

such and begin the process anew with an even stronger determination to ensure that a constitution is produced by a future constitutional convention that focuses on and supports the rights of all citizens of the Virgin Islands. 

However, with respect to the modifications to the currently proposed constitution, I want to request clearly very clearly that the 

committee avoid such an option. As you know, the Minority Members of the USVI Constitutional Convention have urged this Congress to modify the proposed constitution in order to strip out its 

most offensive details and approve the document as amended. 

I have great respect and admiration for those Minority Members 

who have spoken on this matter. But I urge this committee to 

reach a different result. I believe it is critical to the continued politVerDate Nov 24 2008 16:04 Jun 18, 2010 Jkt 000000 PO 00000 Frm 00021 Fmt 6633 Sfmt 6602 L:\DOCS\55534.TXT Hresour1 PsN: KATHY
18 

ical development of the Virgin Islands that our constitution when 

finally adopted be the product solely of the labors of the Virgin 

Islands. A constitution that has been edited by Congress, however 

good its intentions, will be seen in the territory as an exercise that 

runs contrary and counter to truth self-governance. It is my view 

that it falls to the people of the Virgin Islands to correct on its own 

the deficiencies so blatantly evident in the proposed constitution. 

Therefore, if this proposed constitution is not rejected based on 

its failure to meet the requirements of constitutionality, I would request at this juncture that you return the proposed constitution to 

the people of the Virgin Islands and leave it to them either accept 

or reject this document. 

I have made no secret of my views on this proposed constitution. 

I believe that the people should reject it. I also believe that they 

ultimately will. But I just as strongly believe that such a decision 

belongs with the people of the Virgin Islands. 

In conclusion, I would simply say this. I am a native Virgin 

Islander. I am also an American. Those identities are not separable. To be a Virgin Islander is to be an American. The overriding 

flow of the proposed constitution before you is that in an effort to 

recognize and honor the unique contributions of those of us who 

are natives, it would sacrifice the values that make us Americans. 

As a Virgin Islander, as an American, and as an office of the government sworn to support and defend the Constitution of the 

United States, I cannot countenance that result. I ask that Congress not do so either, while also allowing us the ability to determine our own political faith. Thank you. 

[The prepared statement of Governor deJongh follows:] 

Statement of The Honorable John de Jongh, Governor, 

United States Virgin Islands 

Good afternoon. My name is John de Jongh, and I am the Governor of the United 

States Virgin Islands. On behalf of the people of the Virgin Islands, I want to thank 

the Committee and my friend Delegate Christensen for inviting me here to be heard 

on this issue of enormous political, emotional and moral importance to me and to 

all Virgin Islanders. 

Let me begin by stating very clearly that I believe the development of a constitution for our Territory is an extremely important milestone and goal for our citizens 

and that I look very much forward to the day when the Virgin Islands approves a 

Constitution that all of our people can be proud of. 

With respect to the proposed Virgin Islands constitution that is before you, I am 

here today to reiterate my already expressed positions on the document which for 

me has come down to a very simple and straightforward issue of civil rights. 

Our population hails from all parts of the Caribbean and all parts of the world. 

Those who are native Virgin Islanders, as well as those who come to live among 

us in the Virgin Islands are, and must be, treated as equals—fully protected by the 

laws of the United States and the laws of the Virgin Islands. Virgin Islanders do 

not want to be treated, nor do we want our children treated as second class citizens 

when we come to the U.S. mainland and you would not want to be treated, or have 

your children treated as second class citizens if you or they move to the U.S. Virgin 

Islands. 

That is why, when the proposed constitution first came to me, I felt that it did 

not, under the terms of the law Congress had written, meet the standards that Congress had set, indeed that it did not even qualify to be defined and treated as a 

constitution. It did not, could not, and does not now, have my endorsement, my support or my approval. And it is my belief, and hope, that it should not have your 

support either. 

The question, then, has become what to do in response to a fundamentally flawed 

proposed constitution. I believe we must be guided, first and foremost, by a principle 

19 

stated well by our first President, George Washington: ‘‘the basis for our political 

system is the right of the people to make their own constitutions of government.’’ 

We, the people of the Virgin Islands, possess that right—formally conferred unto 

us by this body but in truth rooted in the very sacred and inviolable American values that form the foundation of our system of government as the Founding Fathers 

created it over two centuries ago. 

As a native Virgin Islander, I believe with deep conviction that the Virgin Islands 

will fully come into its own, politically, economically, and culturally, only when its 

people write, and consider, and ratify, their own constitution—a constitution by, of, 

and for all the people of the Virgin Islands. 

At the same time, I am the Chief Executive of the Government of the Virgin 

Islands. In that capacity I swore an oath before God to ‘‘support, obey and defend’’ 

both ‘‘the laws of the Virgin Islands’’ and ‘‘the Constitution and laws of the United 

States.’’ As a native Virgin Islander and as an American, I believe these twin obligations are not, and cannot be, inconsistent. And it is for that reason that I took the 

very strong position that the proposed Constitution of the United States Virgin 

Islands presently before you is not acceptable and is in fact unconstitutional on its 

face. 

First, as I referenced earlier, the proposed constitution fails to recognize the supremacy of the Constitution and laws of the United States. The U.S. Department 

of Justice has concluded that despite the omission of any express recognition of U.S. 

constitutional supremacy, the proposed constitution is in ‘‘substantial compliance’’ 

with the statutory requirements. Perhaps so. But that ‘‘substantial compliance,’’ 

such as it is, does nothing to correct the political and symbolic harm created by the 

convention’s conscious and deliberate decision not to expressly recognize the supremacy of the constitution and laws of the country of which the Virgin Islands is 

a proud part. 

Second, the proposed constitution openly creates invidious distinctions among the 

people of the Virgin Islands. 

Third, the proposed constitution is inconsistent with the principle of ‘‘one person, 

one vote’’ that lies at the heart of the concept of equality in our democracy. Under 

the proposed constitution, the people of the Virgin Islands would be divided into 

those who carry full privileges of the Virgin Islands, and those who do not; between 

those who are eligible to serve the people, and those who are not. Such classifications could not be more contrary to the most fundamental of all American values: 

the self-evident truth that all men are created equal, are endowed by their Creator 

with certain inalienable rights, and are entitled to the equal protection of the laws. 

The proposed constitution, with its carve-outs and special preferences, assails 

these fundamental values. As a matter of U.S. Constitutional law, it is indefensible; 

as a political act, it is divisive; and as a matter of history, it is a dangerous step 

backwards in our centuries-long struggle, which has been joined by generations of 

Virgin Islanders, for full and equal civil rights. 

In addition to speaking to you about the proposed constitution and highlighting 

those areas of grave concern to me as Governor, I am also here today to speak to 

you, just as importantly about the next steps for the document before this Committee. I want to state for the record, with equal conviction, my opinion and desires 

for the next steps in this process which are to be exercised by this Congress. 

Congress has the authority and power to modify, in part, or in whole, the proposed constitution before you. Congress indeed has the power, implicit in the statute 

and inherent in its legislative authority, to reject the proposed constitution outright. 

If this should end up being the decision of this Congress then we will abide by such 

and begin the process anew with an even stronger determination to ensure that any 

constitution produced by a future constitutional convention focuses on, and supports, 

the rights of all the citizens of the Virgin Islands. 

However, with respect to modifications to the currently proposed constitution, I 

want to request very clearly that the Committee avoid such an option. As you know, 

the minority members of the USVI Constitutional Convention have urged this Congress to modify the proposed constitution in order to strip out its most offensive details, and approve the document, as amended. 

I have great respect and admiration for those minority members who have spoken 

out on this matter; but I urge this Committee to reach a different result. I believe 

it is critical to the continued political development of the Virgin Islands that our 

constitution, when finally adopted, be the product solely of the labors of Virgin 

Islanders. 

A constitution that has been edited by Congress, however good its intentions, will 

be seen in the Islands as an exercise that runs contrary and counter to true local 

self-governance. 

20 

It is my view that it falls to the people of the Virgin Islands to correct, on our 

own, the deficiencies so blatantly evident in the proposed constitution. Therefore if 

this proposed constitution is not rejected based on its failure to meet the requirements of constitutionality, I would request, at this juncture, that you return the proposed constitution to the people of the Virgin Islands and leave it to them to either 

accept, or reject this document. 

I have made no secret of my views on this proposed constitution. I believe that 

the people should reject it, and also believe that they ultimately will. But I just as 

strongly believe that such a decision belongs with the people of the Virgin Islands. 

In conclusion, I would simply say this. I am a native Virgin Islander. I am also 

an American. Those identities are not separable: to be a Virgin Islander is to be an 

American. The overriding flaw of the proposed constitution before you is that, in its 

effort to recognize and honor the unique contributions of those of us who are natives, it would sacrifice the values that make us Americans. 

As a Virgin Islander, as an American, and as an officer of the government sworn 

to support and defend the Constitution of the United States, I cannot countenance 

that result. I ask that Congress not do so either while also allowing us the ability 

to determine our own political fate. 

Thank you 

Ms. BORDALLO. Thank you very much, Governor, for your statement. And, Senator Richards, we welcome your testimony, and you 

are now recognized for five minutes. 

STATEMENT OF HON. USIE R. RICHARDS, MINORITY LEADER, 

28TH LEGISLATURE OF THE VIRGIN ISLANDS 

Mr. RICHARDS. Good afternoon. I am Usie R. Richards, a senator 

and Minority Leader of the 28th Legislature of the Virgin Islands. 

I want to begin by thanking you for your invitation to share my 

views. Let me state from the onset, I stand firmly on the principle 

that the process should ensure that the document developed by the 

citizens and registered voters of the Virgin Islands, who were elected to the Fifth Constitutional Convention by registered voters 

throughout the unincorporated territory of the Virgin Islands be 

given the opportunity to be voted upon by the voters that began 

this process through its elected representatives in the 25th Legislature. 

Much has been said and written regarding a number of issues 

surrounding the content of the document, and today I intend to 

offer my perspective on what has transpired. I have no intention 

to declare what is correct or incorrect, but more importantly to provide a perspective that should aid this body in understanding the 

conditions and circumstances under which much of the documents 

content has evolved. 

I am reminded of my testimony shared before the Committee on 

Resources on May 17, 2000, as it related to H.R. 3999, a proposal 

clarifying the process for the adoption of local constitutional selfgovernment for the Virgin Islands. The failure to act on recommendations made almost a decade ago continues to hamper the 

attempt of our populace to secure some greater level of self-government. 

Today, elected, appointed, and in some cases anointed members 

of our community remain entrenched in heated discussions and debates relating to this proposed constitution. Despite all of this, I 

understand the foundation that these issues have sat on for so 

many years. The Virgin Islands has been and remains today an incorporated territory of the United States, its subject matter best 

21 

described by former Congressman Robert Underwood, from Guam, 

in his introduction of H.R. 1521, the Guam Commonwealth Bill. 

And he stated, ‘‘Guam is currently an incorporated territory. An incorporated territory means that first, laws can be imposed upon the 

people of Guam without consultation; second, any local law can be 

abrogated by the U.S. Congress; third, U.S. citizenship can be 

taken away from the people of Guam; fourth, Guam can be bought, 

sold, or traded by the Federal Government; and fifth, Guam as a 

territory is in the truest sense a possession.’’ All I ask you is to insert Virgin Islands in the place of Guam. 

When the members of the Fifth Constitutional Convention declared in its preamble, ‘‘Assuming the responsibilities of self-government as an incorporated territory of the United States, as acknowledged by Assistant Attorney General Ronald Rich, this clearly illustrates the right and acknowledgment of United States sovereignty.’’ I would hope that the learned amongst us would recognize that the term ‘‘unincorporated territory’’ clearly speaks to an 

entity that is subservient to and lacks the wherewithal to freely act 

on its own. Whether a statement is explicit or implicit becomes a 

matter of semantics. 

Likewise, the supremacy of Federal law is recognized by the 

Fifth Constitutional Convention, proposed with its inclusion of the 

relevance of the 1917 treaty between the United States and Denmark, and its recognition of the rights of U.S. court to review decisions of local courts under the U.S. Constitution and Federal laws. 

As concluded by Attorney Rich, we believe the proposed constitution is in substantial compliance with subsection 2(b)(1) of the enabling act. 

While I am cognizant of the trepidations that may have been created by the inclusion of language in the proposed constitution, addressing the issue of classifications based on place and timing of 

birth, timing of residence, and ancestry, I must remind you that 

much of this stems from prior actions of this body. This body has 

enacted laws to address education for the native Hawaiian and 

Alaskan in Public Law 103-382 of 1994. In the northern Marianas, 

this body has recognized the significance of restrictions of alienation of land in article 12 of the commonwealth constitution, while 

giving special preference to Native American, Samoan, in 16 U.S. 

Code, chapter 1, on national parks, military parks, monuments, 

and seashores. And Public Law 4-14 of 1952, entitled Free Nationality and Naturalization, this body went to great lengths to determine and define who shall be considered a citizen. If the person 

was born in Puerto Rico on or after April 11, 1899, born in the 

Canal Zone, or Republic of Panama after February 26, 1904, born 

in Alaska on or after March 20 of 1867, born in Hawaii on or after 

August 12 of 1898, living in and born Virgin Islands subsequent to 

January 17, 1917, and prior to February 25, 1927, and living in 

and born in Guam after April 11, 1889, and declared citizens of the 

U.S. as of August 1, 1950. 

Not only has this body exercised the authority as it relates to 

citizenship, but even in a case of public lands, in section 1601 of 

the Alaska Native Claims Act, this body has defined who ought to 

have the right to redress under this law. This inalienable right is 

further defined in section 3 of Public Law 92-203 of 1971, as it reVerDate Nov 24 2008 16:04 Jun 18, 2010 Jkt 000000 PO 00000 Frm 00025 Fmt 6633 Sfmt 6602 L:\DOCS\55534.TXT Hresour1 PsN: KATHY
22 

lates to the declaration of settlement in the State of Alaska. In 

H.R. 1056, section 102, this body not only recognized the inalienable right of self-determination of the indigenous Chamorro people 

of Guam, but also allows for the constitution to establish reasonable residency requirements for the citizens of such commonwealth 

for the purposes of the right to vote in commonwealth elections or 

to hold any elected office by the constitution of Guam. 

This body has unlimited power over the unincorporated territory 

of the U.S. Virgin Islands. This body authorized citizenship to the 

indigenous people of the unincorporated territory of the Virgin 

Islands in 1927, a full 10 years after the 1917 purchase from Denmark, a citizenship that was not fully conferred until as late as 

1940. Obviously, the enactment of congressional laws to protect or 

enhance the status of indigenous peoples in both possessions and 

states of the United States has created a sense and need to address 

the status of the indigenous in the Virgin Islands. 

The body has placed itself in the position to now address or redress the inequities created by the purchase of land with no real 

regard to the then occupants that resulted in uncontrolled population growth, outside economic dominance, deterioration of our social mores, and an infiltration of our political process. As a matter 

of fact, the Eastern Carribean Center of the University of the Virgin Islands in their research news from ECC inform us that there 

are some 58,786 Virgin Island natives living in the United States 

in 2008. Since 1980, almost eight out of ten of all natives in the 

U.S. had migrated there. Between 1980 and 1989, 13,184 natives 

moved away. Between 1990 and 1999, 17,550 emigrated. And between 2000 and 2009, 15,143 natives took up residence in the 

States. This is according to the 2008 Community Service Public 

Use microdata. 

Accordingly, the Virgin Islands Community Service indicates 

that the total population of the Virgin Islands was 114,744. Simply 

put, the 58,786 Virgin Islands natives living in the United States 

represent more than half of the current resident population of the 

Virgin Islands. It is therefore conceivable why the writers of the 

proposed constitution gave great weight and consideration to native 

Virgin Islanders living abroad. 

The point is if this body can address such issues as citizenship, 

economics, social needs, property, settlements, trust lands, exclusive economic zones, education, alienation of land, parks, and others, then surely this body can ensure the inalienable rights of the 

indigenous people of the Virgin Islands to pursue greater self-government through the drafting, voting, and adoption of a constitution. I believe the annals of this body said it best. This is a matter 

to be considered by the voters, or perhaps at some future time by 

the courts. 

I urge you to allow the voters of the U.S. Virgin Islands to exercise some semblance of democracy by being able to consider the 

content developed by their duly elected members to the Fifth Constitutional Convention. I thank you for your time and your consideration. 

[The prepared statement of Mr. Richards follows:] 

23 

Statement of The Honorable Usie R. Richards, Minority Leader, 

28th Legislature of the Virgin Islands 

GOOD AFTERNOON, CHAIRWOMAN BORDALLO, MEMBERS OF THE SUBCOMMITTEE ON INSULAR AFFAIRS, OCEANS AND WILDLIFE, MEMBERS OF 

CONGRESS AND ALL OTHERS, I AM USIE R. RICHARDS, A SENATOR AND 

THE MINORITY LEADER OF THE 28TH LEGISLATURE OF THE VIRGIN ISLANDS. THANK YOU FOR YOUR INVITATION TO SHARE MY VIEWS ON THE 

PROPOSED CONSTITUTION THAT IS BEFORE YOU. LET ME STATE FROM 

THE ONSET, I STAND FIRMLY ON THE PRINCIPLE THAT THE PROCESS 

SHOULD ENSURE THAT THE DOCUMENT DEVELOPED BY THE CITIZENS 

AND REGISTERED VOTERS OF THE VIRGIN ISLANDS, WHO WERE ELECTED 

TO THE FIFTH CONSTITUTIONAL CONVENTION BY REGISTERED VOTERS 

THROUGHOUT THE UNINCOPORATED TERRITORY OF THE VIRGIN ISLANDS, BE GIVEN THE OPPORTUNITY TO BE VOTED UPON BY THE VOTERS THAT BEGAN THIS PROCESS THROUGH ITS ELECTED REPRESENTATIVES IN THE 26TH LEGISLATURE. MUCH HAS BEEN SAID AND WRITTEN 

REGARDING A NUMBER OF ISSUES SURROUNDING THE CONTENT OF THE 

DOCUMENT AND TODAY I INTEND TO OFFER MY PERSPECTIVE ON WHAT 

HAS TRANSPIRED. I HAVE NO INTENTION TO DECLARE WHAT IS CORRECT 

OR INCORRECT, BUT MORE IMPORTANTLY TO PROVIDE A PERSPECTIVE 

THAT SHOULD AID THIS BODY IN UNDERSTANDING THE CONDITIONS 

AND CIRCUMSTANCES UNDER WHICH MUCH OF THE DOCUMENT’S CONTENT HAS EVOLVED. 

I AM REMINDED OF MY TESTIMONY SHARED BEFORE THE COMMITTEE 

ON RESOURCES, CHAIRED BY REPRESENTATIVE DON YOUNG ON MAY 17, 

2000, AS IT RELATED TO H.R. 3999, A PROPOSAL ‘‘CLARIFYING THE PROCESS FOR THE ADOPTION OF LOCAL CONSTITUTIONAL SELF-GOVERNMENT 

FOR THE VIRGIN ISLANDS’’. THE FAILURE TO ACT ON RECOMMENDATIONS MADE ALMOST A DECADE AGO CONTINUES TO HAMPER THE ATTEMPT OF OUR POPULACE TO SECURE SOME GREATER LEVEL OF SELFGOVERNMENT IN THE VIRGIN ISLANDS. 

TODAY, ELECTED, APPOINTED AND IN SOME CASES ‘‘ANNOINTED’’ MEMBERS OF OUR COMMUNITY REMAIN ENTRENCHED IN HEATED 

DISUCSSIONS AND DEBATES RELATING TO THIS PROPOSED CONSTITUTION. DESPITE ALL OF THIS, I UNDERSTAND THE FOUNDATION THAT 

THESE ISSUES HAVE SAT ON FOR SO MANY YEARS. THE VIRGIN ISLANDS 

HAS BEEN, AND REMAINS TODAY, AN UNINCOPORATED TERRITORY OF 

THE UNITED STATES, A SUBJECT MATTER BEST DESCRIBED BY FORMER 

CONGRESSMAN ROBERT UNDERWOOD FROM GUAM IN HIS INTRODUCTION OF H.R.1521 THE GUAM COMMONWEALTH BILL. HE STATED, ‘‘GUAM 

IS CURRENTLY AN UNINCORPORATED TERRITORY, AN UNICORPORATED 

TERRITORY MEANS THAT FIRST, LAWS CAN BE IMPOSED UPON THE PEOPLE OF GUAM WITHOUT CONSULTATION, SECOND, ANY LOCAL LAW CAN 

BE ABROGATED BY THE U.S. CONGRESS, THIRD, U.S. CITIZENSHIP CAN BE 

TAKEN AWAY FROM THE PEOPLE OF GUAM, FOURTH, GUAM CAN BE 

BOUGHT, SOLD OR TRADED BY THE FEDERAL GOVERNMENT, AND FIFTH, 

GUAM AS A TERRITORY IS IN THE TRUEST SENSE A POSSESSION’’. WHEN 

THE MEMBERS OF THE 5TH CONSTITUTIONAL CONVENTION DECLARE IN 

ITS PREAMBLE, ‘‘ASSUMING THE RESPONSIBLITIES OF SELF-GOVERNMENT AS AN UNINCOPORATED TERRITORY OF THE UNITED STATES’’, AS 

ACKNOWLEGED BY ASSISTANT ATTORNEY GENERAL RONALD WEICH, 

THIS CLEARLY ILLUSTRATES THE WRITERS’ ACKNOWLEDGEMENT OF 

UNITED STATES SOVEREIGNTY. I WOULD HOPE THAT THE LEARNED 

AMONGST US, WOULD RECOGNIZE THAT THE TERM ‘‘UNINCOPORATED 

TERRITORY’’, CLEARLY SPEAKS TO AN ENTITY THAT IS SUBSERVIANT TO 

AND LACKS THE WHEREWITHAL TO FREELY ACT ON ITS OWN. WHETHER 

THE STATEMENT IS EXPLICIT OR IMPLICIT BECOMES A MATTER OF SEMANTICS. 

LIKEWISE, THE SUPREMACY OF FEDERAL LAW IS RECOGNIZED BY THE 

5TH CONSTITUTIONAL CONVENTION, PROPOSED WITH ITS INCLUSION OF 

THE RELEVANCE OF THE 1917 TREATY BETWEEN THE UNITED STATES 

AND DENMARK AND ITS RECOGNITION OF THE RIGHTS OF U.S. COURTS 

TO REVIEW DECISIONS OF LOCAL COURTS UNDER THE U.S. CONSTITUTION AND FEDERAL LAWS. AS CONCLUDED BY ATTORNEY WEICH, ‘‘WE BELIEVE THE PROPOSED CONSTITUTION IS IN SUBSTANTIAL COMPLIANCE 

WITH SUBSECTION 2(b)(1) OF THE ENABLING ACT’’. WHILE I REMAIN COGNIZANT OF THE TREPIDATIONS THAT MAY HAVE BEEN CREATED BY THE 

24 

INCLUSION OF LANGUAGE IN THE PROPOSED CONSTITUTION ADDRESSING THE ISSUE OF ‘‘CLASSIFICATIONS BASED ON PLACE AND TIMING OF 

BIRTH, TIMING OF RESIDENCE, AND ANCESTRY’’, I MUST REMIND YOU 

THAT MUCH OF THIS STEMS FROM PRIOR ACTIONS OF THIS BODY. THIS 

BODY HAS ENACTED LAWS TO ADDRESS EDUCATION FOR THE NATIVE 

HAWAIIAN AND ALASKAN IN ‘‘P.L. 103-382 OF OCTOBER 20, 1994’’. IN THE 

NORTHERN MARIANAS THIS BODY HAS RECOGNIZED THE SIGNIFICANCE 

OF RESTRICTIONS OF ALIENATION OF LAND IN ‘‘ARTICLE XII OF THE 

COMMONWEALTH CONSTITUTION’’, WHILE GIVING SPECIAL PREFERENCE 

TO THE NATIVE AMERICAN SAMOAN IN ‘‘16 USC, CHAPTER 1 ON NATIONAL 

PARKS, MILITARY PARKS, MONUMENTS, AND SEASHORES’’. IN P.L. 414- 

JUNE 27, 1952 IN TITLE III-NATIONALITY AND NATURALIZATION, THIS 

BODY WENT TO GREAT LENGTHS TO DETERMINE AND DEFINE WHO 

SHALL BE CONSIDERED A CITIZEN, ‘‘IF THE PERSON WAS BORN IN PUERTO RICO ON OR AFTER APRIL 11, 1899; BORN IN THE CANAL ZONE OR REPUBLIC OF PANAMA AFTER FEBRUARY 26, 1904; BORN IN ALASKA ON OR 

AFTER MARCH 20, 1867; BORN IN HAWAII ON OR AFTER AUGUST 12, 1898; 

LIVING IN AND BORN IN THE VIRGIN ISLANDS SUBSEQUENT TO 

JANUARY 17, 1917, AND PRIOR TO FEBRUARY 25, 1927; AND LIVING IN AND 

BORN IN GUAM AFTER APRIL 11, 1899 AND DECLARED CITIZENS OF THE 

U.S. AS OF AUGUST 1, 1950’’. NOT ONLY HAS THIS BODY EXERCISED THEIR 

AUTHORITY AS IT RELATES TO CITIZENSHIP, BUT EVEN IN THE CASE OF 

PUBLIC LANDS IN ‘‘SECTION 1601 OF THE ALASKA NATIVE CLAIMS ACT’’ 

THIS BODY HAS DEFINED WHO OUGHT TO HAVE THE RIGHT TO REDRESS 

UNDER THIS LAW. THIS INALIENABLE RIGHT IS FURTHER DEFINED IN 

‘‘SECTION 3, OF P.L. 92-203 OF DECEMBER 18, 1971’’, AS IT RELATES TO THE 

DECLARATION OF SETTLEMENT IN THE STATE OF ALASKA. IN ‘‘H.R. 1056 

IH, SECTION 102’’., THIS BODY NOT ONLY RECOGNIZES THE INALIENABLE 

RIGHT OF SELF-DETERMINATION OF THE INDIGENOUS CHAMARRO PEOPLE OF GUAM, BUT ALSO ALLOWS FOR ‘‘THE CONSTITUTION TO ESTABLISH REASONABLE RESIDENCY REQUIREMENTS FOR THE CITIZENS OF 

SUCH COMMONWEALTH FOR THE PURPOSES OF THE RIGHT TO VOTE IN 

COMMONWEALTH ELECTIONS OR TO HOLD ANY ELECTIVE OFFICE BY 

THE CONSTITUTION OF GUAM’’. 

THIS BODY HAS UNLIMITED POWER OVER THE UNINCOPORATED TERRITORY OF THE VIRGIN ISLANDS. THIS BODY AUTHORIZED CITIZENSHIP TO 

THE INDIGENOUS PEOPLE OF THE UNINCOPORATED TERRITORY OF THE 

VIRGIN ISLANDS IN 1927, A FULL TEN YEARS AFTER THE 1917 PURCHASE 

FROM DENMARK, A CITIZENSHIP THAT WAS NOT FULLY CONFERRED 

UNTIL AS LATE AS 1940. OBVIOUSLY, THE ENACTMENT OF CONGRESSIONAL LAWS TO PROTECT OR ENHANCE THE STATUS OF INDIGENOUS 

PEOPLES IN BOTH POSSESSIONS AND STATES OF UNITED STATES HAS 

CREATED THE SENSE AND NEED TO ADDRESS THE STATUS OF THE INDIGENOUS IN THE VIRGIN ISLANDS. THIS BODY HAS PLACED ITSELF IN THE 

POSITION TO NOW ADDRESS OR REDRESS THE INEQUITIES CREATED BY 

THE PURCHASE OF A LAND WITH NO REAL REGARD TO THE THEN OCCUPANTS THAT RESULTED IN UNCONTROLLED POPULATION GROWTH, OUTSIDE ECONOMIC DOMINANCE, DETERIORATION OF OUR SOCIAL MORES 

AND AN INFILTRATION OF OUR POLITICAL PROCESS. 

AS A MATTER OF FACT, THE EASTERN CARIBBEAN CENTER OF THE UNIVERSITY OF THE VIRGIN ISLANDS, IN THEIR ‘‘RESEARCH NEWS FROM 

ECC’’, RELEASED IN JANUARY OF 2010, INFORMED U.S. OF THAT SOME 

58,786 VIRGIN ISLANDS NATIVES LIVING IN THE UNITED STATES IN 2008. 

‘‘SINCE 1980, ALMOST 8 OUT OF 10 OF ALL NATIVES IN THE U.S. HAD MIGRATED THERE. BETWEEN 1980 AND 1989, 13,184 NATIVES MOVED 

AWAY...BETWEEN 1990 AND 1999, 17,550 EMIGRATED...AND BETWEEN 2000 

AND 2009 15,143 NATIVES TOOK UP RESIDENCE IN THE STATES’’. THIS IS 

ACCORDING TO THE 2008 AMERICAN COMMUNITY SURVEY (acs) PUBLIC 

USE MICRODATA SAMPLE FILE. ACCORDINGLY, THE VIRGIN ISLANDS 

COMMUNITY SURVEY (VICS) INDICATES THAT THE TOTAL POPULATION 

OF THE USVI WAS 114,744. SIMPLY PUT, THE 58,786 VIRGIN ISLANDS NATIVES LIVING IN THE UNITED STATES REPRESENTS MORE THAN HALF OF 

THE CURRENT RESIDENT POPULATION OF THE VIRGIN ISLANDS. IT IS 

THEREFORE CONCEIVABLE WHY THE WRITERS OF THE PROPOSED CONSTITUTION GAVE GREAT WEIGHT AND CONSIDERATION TO NATIVE VIRGIN ISLANDERS LIVING ABROAD. 

THE POINT IS, IF THIS BODY CAN ADDRESS SUCH ISSUES AS CITIZENSHIP, ECONOMICS, SOCIAL NEEDS, PROPERTY, SETTLEMENTS, TRUST 

25 

LAND, EXCLUSIVE ECONOMIC ZONES, EDUCATION, ALIENATION OF LAND, 

PARKS AND OTHERS, THEN SURELY THIS BODY CAN ENSURE THE INALIENABLE RIGHTS OF THE INDIGENOUS PEOPLE OF THE VIRGIN ISLANDS TO PURSUE GREATER SELF-GOVERNMENT THROUGH THE DRAFTING, VOTING AND ADOPTION OF A CONSTITUTION. 

I BELIEVE THE ANNALS OF THIS BODY SAID IT BEST, ‘‘THIS IS A MATTER 

TO BE CONSIDERED BY THE VOTERS, OR PERHAPS, AT SOME FUTURE 

TIME, BY THE COURTS’’. I URGE YOU TO ALLOW THE VOTERS OF THE U.S. 

VIRGIN ISLANDS TO EXERCISE SOME SEMBLANCE OF DEMOCRACY BY 

BEING ABLE TO COnSIDER THE CONTENT DEVELOPED BY THEIR DULY 

ELECTED MEMBERS TO THE 5TH CONSTITUTIONAL CONVENTION. I 

THANK YOU FOR YOUR TIME AND CONSIDERATION. 

Ms. BORDALLO. I thank you very much, Senator Richards. And 

last, we will turn to the former Lieutenant Governor, Mr. James. 

Mr. James, you are recognized for five minutes. 

STATEMENT OF HON. GERARD LUZ JAMES II, PRESIDENT, 

FIFTH CONSTITUTIONAL CONVENTION 

Mr. JAMES. Thank you very much, Madame Chair, and good 

afternoon, Madame Chairperson Bordallo, committee members, and 

all others present. I am Gerard Luz James II. I am the President 

of the Fifth Constitutional Convention of the United States Virgin 

Islands, and I have with me today Dr. Lois Hassell-Habtes, Adelbert Bryan, and Gerard Emanuel, who are here in official capacities as representatives of the Fifth Constitutional Convention. 

Elected at large by the people of the four islands paradise, which 

we proudly call home, it is my distinct honor to address this committee regarding the adoption last May by our convention of the 

proposed constitution for consideration by Congress. The convention is fully aware that our proposed constitution is not designed 

to usurp the sovereignty or supremacy of Federal law, and that the 

passage of our constitution will not, nor is it intended to, alter our 

political relationship with the United States. 

It represents a further step along the path to the full measure 

of self-government. This is our fifth attempt to attain greater selfgovernment since Congress passed P.L. 94-584 in 1976, which 

granted us the authority to draft our own constitution. The Revised 

Organic Act of 1954—the Organic Act has served as the guiding 

law for the Virgin Islands for 56 years, with no input from the population it governs. 

On June 12, 2007, a special election was held to select delegates 

from throughout the territory to draft a constitution. The keen interest of the Virgin Islands in this process was evident from the inception, when voters elected delegates from a field of 135 candidates. Thirty delegates were elected and served as drafters of the 

constitution. The elected delegates were composed of a former Governor, a Lieutenant Governor, four former senators, two sitting 

senators elected during the term of the convention, a former district court judge, three practicing attorneys, farmers, professors, 

teachers, and political activists. 

Upon convening in December of 2007, the convention formed 12 

committees which were charged with conducting public hearings on 

the areas which are now in part our proposed constitution. The 

work of our convention was impeded at about the onset for six 

months by the court challenge to the results of the election by our 

26 

unsuccessful candidate, and further delayed in midstream as the 

convention awaited the balance of the operating funds appropriated 

by the legislature. 

The level of funding was in itself an impediment, with the Fifth 

Constitutional Convention receiving significantly less funding that 

the fourth constitutional convention, which met some 30 years ago. 

The convention conducted a series of well publicized public hearings, committee hearings, and plenary sessions comprising hundreds of hours of testimony and debate and many volumes of transcribed records. These meetings were attended by Virgin Islanders 

from all walks of life, included but not limited to students, political 

activists, several religious leaders, as well as private citizens. 

We also consulted with representatives of a wide range of leaders 

of several organizations and institutions, including the president 

and the department heads of the University of the Virgin Islands. 

We are proud to report that at the end of this protracted process, 

in May of last year, the convention was able to reach a required 

majority consensus, and our proposed constitution passed with twothirds vote of 20 delegates. The document was transmitted to our 

Governor on May 31, 2009. 

A major area of public discussion during this process was extensive debate on the crafting of the definition of Virgin Islander according to 1917 treaty accession, through which the territory was 

purchased by the United States from Denmark. The political rights 

and citizenship and the inhabitants of the territory at that time of 

transfer was subsequently to be determined by U.S. Congress. 

The citizenship of the island’s population at the time of the 

transfer, which was predominantly comprised of former enslaved 

Africans and their descendants, was not determined until 10 years 

later. Article 3 of the proposed constitution defining ancestral native Virgin Islanders was based on Federal law emerging from that 

period. It is also consistent with the definition of native population 

in the constitution on other unincorporated territories. 

The proposed constitution provides a broader definition of a native Virgin Islander as a person born in the territory or as a descendant of a native. The definition was imperative for several historical reasons. From the early 1970s, we have experienced a dramatic decline of our native-born population. According to the 2007 

study conducted by the University of the Virgin Islands, as of 2005, 

the percentage was approximately 51.3 percent. This decline has 

significant implications for the self-identity of our people. 

The proposed constitution also provides that only ancestral or native Virgin Islanders are eligible to serve as Governor, Lieutenant 

Governor, and members of the proposed future political status advisory commission. These provisions address the unique culture and 

political backdrop of our islands. Additionally, a provision to exempt ancestral Virgin Islanders from paying property tax has been 

included to protect the disenfranchised native population from significant externally motivated commercial land speculation, which 

continues to result in the erosion of the natives’ ability to retain 

and purchase property. It is also consistent with several relevant 

general assembly resolutions, which mandated that all necessary 

steps be taken to protect the property rights of the peoples of the 

territories on the United Nations list of non-self-governing terriVerDate Nov 24 2008 16:04 Jun 18, 2010 Jkt 000000 PO 00000 Frm 00030 Fmt 6633 Sfmt 6602 L:\DOCS\55534.TXT Hresour1 PsN: KATHY
27 

tories. The Virgin Islands, along with American Samoa and Guam 

remain on that list today. 

Similarly, our native rights provisions are part of the constitutions of other U.S.-administered territories, specifically those of 

American Samoa and the northern Marianas, both of which have 

a comparable island geographical make-up, and the same unincorporated political status as the U.S. Virgin Islands. 

We strongly feel that these provisions are not discriminatory and 

do not violate Federal law as it is presently applied to the Virgin 

Islands and support the compelling state interests. 

My fellow delegates’ testimony will address these issues in greater detail. Throughout history, our shores have remained open to 

people of all cultures and ethnicities. The Virgin Islands has long 

been known as the American Paradise, Madame Chair. The proposed constitution is our sincere effort and attempt to ensure that 

the beloved territory remains our Virgin Islands home. I thank you 

very much, Madame Chair. 

[The prepared statement of Mr. James follows:] 

Statement of Gerard Luz Amwur James II, President, 

Fifth Constitutional Convention of the U.S. Virgin Islands 

Good Morning Chairperson Bordallo, Committee members and all others present. 

My name is Gerard Luz Amwur James II. I am the President of the Fifth Constitutional Convention of the U.S. Virgin Islands, elected at large by the people of our 

four island paradise which we proudly call home. It is my distinct honor to address 

this Committee regarding the adoption last May by our Convention of the proposed 

constitution for consideration by Congress. 

I must first emphasize that the Convention is fully aware that our proposed constitution is not designed to usurp the sovereignty or supremacy of federal law and 

that the passage of our constitution will not, nor is it intended to, alter our political 

relationship with the United States. It represents a further step along the path toward a full measure of self-government. 

This is our fifth attempt to attain greater self government since Congress passed 

P.L. 94-584 in 1976 which granted us the authority to draft our own constitution. 

When passed by referendum of the voters of the Virgin Islands it will replace the 

Revised Organic Act of 1954. The Organic Act has served as the governing law of 

the Virgin Islands for fifty six years with no input from the population it governs. 

On June 12, 2007, a special election was held to select delegates from throughout 

the territory to draft the constitution. The keen interest of Virgin Islanders in this 

process was evident from the inception when voters elected delegates from a field 

of 135 candidates. Seventeen ran at large with the remaining candidates running 

from their respective jurisdictions. Thirty delegates were elected, and served as 

drafters of the constitution. The elected delegates were composed of a former Governor, four former senators, two sitting senators (elected during the term of the convention), a former District Court Judge, three practicing attorneys, farmers, professors, teachers and political activists. 

Upon convening in December of 2007, the Convention formed twelve committees 

which were charged with conducting public hearings on the areas which are now 

part of our proposed constitution. The Convention was initially mandated by enabling Virgin Islands legislation to finalize a draft constitution by October 6, 2008, 

but the period was later extended. 

The work of our Convention was impeded at the outset for six months by a court 

challenge to the results of the election by an unsuccessful candidate, and further 

delayed in mid-stream as the convention awaited the balance of the operating funds 

appropriated by the Legislature. The level of funding was itself an impediment with 

the Fifth Constitutional Convention receiving significantly less funding then the 

Fourth Constitutional Convention which met some thirty years ago. 

This caused several inordinate delays in the drafting process and necessitated an 

extension of the time frame for submission to our governor. Despite these constraints, the Convention conducted a series of well publicized public hearings, committee hearings and plenary sessions comprising hundreds of hours of testimony 

and debate and many volumes of transcribed records. These meetings were attended 

by Virgin Islanders from all walks of life including but not limited to students, politVerDate Nov 24 2008 16:04 Jun 18, 2010 Jkt 000000 PO 00000 Frm 00031 Fmt 6633 Sfmt 6621 L:\DOCS\55534.TXT Hresour1 PsN: KATHY
28 

ical activists, several religious leaders, as well as private citizens. We also consulted 

with representatives of a wide range of leaders of several local organizations and 

institutions including the President and department heads of the University of the 

Virgin Islands. 

Unfortunately, insufficient resources and time constraints resulted in our inability 

to conduct an adequate public relations campaign. Also, the hard work of the Convention was often sensationalized and marginalized by the media’s focus on specific 

issues and individuals, rather than on our substantive work. 

Through it all, we are proud to report that at the end of this protracted process, 

in May of last year, the convention was able to reach the required majority consensus and our proposed constitution passed with a two-thirds vote of 20 delegates. 

The document was transmitted to our Governor on May 31, 2009, meeting our extended deadline. 

A major area of public discussion during this process was extensive debate on the 

crafting of the definition of a Virgin Islander. According to the 1917 treaty, through 

which the territory was purchased by the United States from Denmark, the political 

rights and citizenship of the inhabitants of the territory at the time of transfer 

would subsequently be determined by the U.S. Congress. The citizenship of the islands’ population at the time of the transfer, which was predominately comprised 

of former enslaved Africans and their descendents, was not determined until ten 

years later. Article III of the proposed constitution defining Ancestral Native Virgin 

Islander was based on federal law emerging from that period (See Section 306 INA 

(8 U.S.C. 1406). It is also consistent with the definition of native populations in the 

constitutions of other un-incorporated territories. 

The proposed constitution provides a broader definition of a Native Virgin 

Islander as a person born in the territory, or a descendent of a native. The delegates 

felt that the inclusion of this definition was imperative for several historical reasons. From the early seventies we have experienced a dramatic decline of our native-born population. According to a 2007 study conducted by the University of the 

Virgin Islands as of 2005 the percentage was approximately 51.3 %. This decline has 

significant implications for the self-identity of our people. 

The proposed constitution also provides that only Ancestral or Native Virgin 

Islanders are eligible to serve as governor and Lieutenant governor, and as members of a proposed future political status advisory commission. These provisions address the unique culture and political backdrop of our islands. 

Additionally, a provision to exempt Ancestral Virgin Islanders from paying property tax has been included. This provision is designed to protect the disenfranchised 

native population from significant externally motivated commercial land speculation 

which continues to result in the erosion of natives’ ability to retain and purchase 

property. It is also consistent with several relevant General resolutions, most recently operative paragraph 9 of the United Nations General Assembly Resolution 

63/108, which mandates that all necessary steps be taken to protect the property 

rights of the peoples of the territories on the United Nations list of non self-governing territories. The Virgin Islands, along with American Samoa and Guam, remain on that list today. 

Similar native rights provisions are part of the constitutions of other U.S. administered territories, specifically those of American Samoa and the Northern Marianas, both of which have a comparable island geographical make up, and the same 

unincorporated political status as the U.S. Virgin Islands. 

We strongly feel that these provisions are not discriminatory, and do not violate 

federal law as it is presently applied to the Virgin Islands and supports a compelling state interest. My fellow delegates’ testimony will address these issues in greater detail. Further elaboration is contained in our response to the Department of Justice analysis which has been submitted for your consideration and review. Throughout out history our shores have remained open to people of all cultures and 

ethnicities. The Virgin Islands has long been known as the ‘‘American Paradise.’’ 

The proposed constitution is our sincere effort attempt to insure that our beloved 

territory remains our ‘‘Virgin Islands Home.’’ 

Thank you again for your time and your thoughtful review of our Constitution 

Ms. BORDALLO. I thank the former Lieutenant Governor, Mr. 

James, for your testimony. And this completes the testimony from 

our first panel of witnesses. I will now recognize the members of 

the Subcommittee for questions that they may have, alternating 

between the Majority and the Minority, and I will begin with 

myself. 

29 

The first question I have is for you, Assistant Secretary 

Cedarbaum, Department of Justice. What would happen if Congress were to allow this proposed constitution to be returned unchanged to the people of the Virgin Islands, and it was adopted. 

Would the questionable provisions that you suggest should be 

changed be enforceable? 

Mr. CEDARBAUM. Madame Chairwoman, thank you for that question. Under the terms of Public Law 94-584, if Congress allowed 

the proposed constitution to go back for a referendum by the people 

of the Virgin Islands, and the people of the Virgin Islands approved 

it in the referendum, the constitution would take effect. But that 

process would not cure any constitutional defects that may exist in 

any of its provisions. So they would be subject to legal challenge 

at that point, and the challengers would have to go to court to see 

whether particular provisions would or would not be constitutional. 

Ms. BORDALLO. The next question is for you, Governor. If Congress sends the proposed constitution back to the Virgin Islands 

without amendment, and it is rejected, as you have urged, in a referendum by the people, what do you see as the next step? 

Governor DEJONGH. If it is sent back, as I said earlier in my testimony, I think this is an important milestone and goal for the people of the Virgin Islands. If the Constitution is returned and it is 

rejected, I would then first of all work and immediately work with 

the legislature to see what we could do to start the process of forming another constitutional convention. 

Ms. BORDALLO. All right. Another question along the same lines. 

Is there no way to address the concerns of some of the convention 

delegates which are represented by the provisions they included in 

the constitution, which they say are necessary for the protection 

and the preservation of the culture and the traditions of Virgin 

Islanders? 

Governor DEJONGH. I believe overall that the work that was done 

indicates a process where concerns were taken into account. But 

the Virgin Islands at this point in time in its history is represented 

by a multitude of individuals and ethnicities within the islands. I 

think the best way for this to be addressed, Madame Chair, is for 

the constitution to be returned to the Virgin Islands and to let us 

vote on it to determine exactly what happens and at what point 

there is any challenge, if it passes. But as I have reiterated and 

stated in my statement, I do not believe it will such, and we will 

get back to a point of looking at another constitutional convention. 

Ms. BORDALLO. Another question I have for you, President 

James. It is my understanding that the proposed constitution was 

approved by two-thirds vote of the delegates. Now was that difficult 

to accomplish, or were all the delegates more or less on the same 

page with regards to the constitution’s content? 

Mr. JAMES. There was some difficulty in getting to where we are 

today. But we did have a discussion, and we came to a meeting of 

the minds and were able to come up with what we have in front 

of you today. 

Ms. BORDALLO. And I have another question for you as well. 

What do you see as the prospects for the Virgin Islands adopting 

a constitution if this effort from the Fifth Constitution convention 

30 

is rejected by the voters? What do you see? Do you see a further 

process going on after this? 

Mr. JAMES. I think, to be quite honest, it has been 30 years from 

the last. I may not see one in my lifetime. I think that what we 

need to do at this present time is to move forward with what we 

have. We have listened to the presentations today by the various 

individuals on the daises, as myself, and they have delivered. And 

it has been shown that in other areas, things have been done by 

this body in order to address the situations that may have—just 

like native rights and other individuals like that. 

I think that what we can do is just send it to the people and let 

the people vote on it, and let us see what will happen. But I hope 

that it will pass and we can amend or do whatever we have to do 

at a later time. 

Ms. BORDALLO. Well, that is part of my philosophy, you know, 

get your foot in the door, and then later on you can either repeal 

or amend, you know, whatever you feel is not right. 

Mr. JAMES. Yes, ma’am. 

Ms. BORDALLO. I would like at this time now to recognize the 

Ranking Member, Mr. Young, for questions. 

Mr. YOUNG. Thank you, Madame Chairman. I want to compliment the panel. You all spoke very well, other than the Lieutenant Governor. I was not here for you, and I apologize. I had a 

phone call I had to take. But I am sure yours was as good as the 

rest of them. 

My concern is—and by the way, the Justice Department, you do 

bring up some valid points. And why would anyone want to send 

back to the people to vote on something that is going to go to court 

and be drug out for a period of time because I do think some of 

this is unconstitutional. The fishery rights three miles, which I am 

very much aware of. The recognition of individual groups by time. 

You know, this happened in my state, where we had a time frame 

where you had to live only a year, and that was taken to court and 

was knocked down to six months. Why six months, I don’t know. 

But it is a long protracted process of doing it. 

Why would anybody want to—Governor, you can address it. Why 

would anybody want to have us accept this and have it go back and 

really end up in court. I think the Justice Department addressed 

that one. So you are the Governor, I don’t care which one, or both. 

Mr. CEDARBAUM. I think that is a question for the Governor. 

Mr. YOUNG. OK, Governor. 

Governor DEJONGH. Sure. I think that what we have to consider 

is that ultimately all the decisions that we make are decisions that 

are judged and voted on and accepted or rejected by the people that 

we are professing to lead. This was a process—and what is interesting today is that I, Senator Richards, and the former Lieutenant 

Governor, Gerard James, chair of the convention, all come to the 

same conclusion through different paths. And that path is to allow 

us the opportunity to take it back to the people to be able to vote 

on exactly what they initially started in the process. And I believe 

that while we may have the challenges, it gives the Virgin 

Islanders the right in its political maturation to be able to have 

that vote. And I think that is extremely important. 

31 

I think any changes to a constitution, no matter how good they 

are at the congressional level, are not consistent with the self-governance and we have the right, and you have given us the authority, to put forth. I think ultimately the people will reject the constitution, and that is my belief. But I think we have a right to at 

least have that vote and make that determination, as opposed to 

you making the changes. 

Mr. YOUNG. But all three of you all agree then if we don’t disapprove it, it goes back to the Virgin Islands. Is that correct? 

Governor DEJONGH. That is how I interpret the various statements. But I will let these gentlemen agree or disagree. 

Mr. RICHARDS. That is correct. 

Mr. YOUNG. Then why are we having a hearing for it. 

Mr. RICHARDS. Well, you are having a hearing because the Enabling Act requires you to. 

Mr. YOUNG. OK. But what I am saying—you don’t object. I happen to think the Justice Department is right, and I don’t really 

agree with the Justice Department. I want you to know that right 

now. If you don’t know my background, you will understand it. But 

anyway, that is not for you, by the way. That is a different department. 

But there are problems, though. And if it is turned down, there 

won’t be those problems. But if it is adopted then, then it goes to 

the court process. Is that correct? 

Mr. RICHARDS. If I may respond. 

Mr. YOUNG. Yes. 

Mr. RICHARDS. There are some findings in accordance with the 

Justice Department that I don’t agree with myself. 

Mr. YOUNG. But that means it is going to go to court. 

Mr. RICHARDS. And rightfully so. I don’t think there is any constitutional document that has not been challenged, not even the 

U.S. Constitution. 

Mr. YOUNG. OK. When it was written, it wasn’t challenged. It is 

challenged today. 

Mr. RICHARDS. And that is because we have a lot of lawyers. 

Mr. YOUNG. That is right. That is one thing. If I ever became a 

dictator, we would have a lot of sport. I can tell you that right now, 

and I am a trophy hunter. Now having said that, I was advised, 

for those that might be interested, we are going to have another 

hearing, Madame Chairman? 

Ms. BORDALLO. Yes, we are. 

Mr. YOUNG. On another issue, Governor, that you will be interested in, and it is called the Rum Tax. But today, in this hearing 

today, because it is about the constitution part of it, I will not ask 

those questions today, but I forewarn all of you about this down 

the line because I have some interest in this because this is American tax dollars. 

But I do again compliment you, and I will be sending you some 

written questions, and hopefully you will respond to them before 

we have the next meeting, the next hearing. And on this issue, I 

want to make sure that the questions the Justice Department addressed, especially when it comes to fisheries and resource jurisdiction—because this is a slippery slope. If you get it, I am going to 

get it. We have three miles. I would like to have my 200 instead 

32 

of 3 miles, like 200 belongs to the Federal Government. I would 

like to have the state own that. So we are going to make sure everything is consistent as we go down this line. 

Again, congratulations. Madame Chairman, I yield back. 

Ms. BORDALLO. Thank you very much, Mr. Young. And I thank 

you. We will look at the other subject matter. I would like now to 

recognize the representative from the Virgin Islands, The Honorable Donna Christensen. 

Mrs. CHRISTENSEN. Thank you, Madame Chair. My first question 

would come to you also, Assistant Attorney General. Your opinions 

on the issues involving legal rights being given to individuals defined as native and ancestral Virgin Islands, I think you made that 

pretty clear. However, does the Administration have an opposition 

to the acknowledgment and definition of the terms ‘native and ancestral Virgin Islanders.’’ 

Mr. CEDARBAUM. Thank you, Congresswoman. I think if those 

definitions had no legal consequences whatsoever, then we would 

not find them legally objectionable or inconsistent with Public Law 

94-584. 

Mrs. CHRISTENSEN. OK. And would you elaborate on the issue of 

a senator from St. John. I think that would come under the section 

entitled Potentially Unequal Legislative Districts, as it relates to 

the one-man, one-vote. Are you saying that the provision that 

would give St. John its own elected senator is on its face unconstitutional? Because I have always felt that St. John should have its 

own senator. 

Mr. CEDARBAUM. No, Congresswoman. We were not saying that 

that provision was unconstitutional on its face. We wanted to lay 

out, though, what we understand to be the relevant constitutional 

principles for assessing whether a one-person, one-vote problem 

might arise. And as we explained in our memo, those principles involve basically the weighing of two considerations, how big a discrepancy there is between equality among the different districts, 

and how important the interests offered by the state government 

are as to why there should be a district for a particular geographic 

area like St. John. One would have to balance those and look at 

all of the relevant facts before coming to any conclusion on whether 

any particular arrangement would be constitutional or unconstitutional. 

Mrs. CHRISTENSEN. OK. Thank you. Thank you for those answers. I have another one, but I am going to try to get some other 

questions in within my five minutes. I guess I would ask this to 

the Governor and Senator Richards, but President James, you 

could answer it if you would like to also because I have a dilemma. 

The three of you have testified that the document should be remanded to the people of the Virgin Islands as is for a vote. And 

I respect that the delegates were duly elected to draft the constitution that is before us, and I would be loathe to make any changes 

just because I didn’t agree with something. 

But help me to understand why it is not a dereliction of our duty 

as a Congress if we should send this document that is in violation 

of the authorizing legislation back to the people. Don’t we have an 

obligation to the people of the Virgin Islands as the only body that 

can amend it to send them a document that would withstand legal 

33 

and constitutional challenge? And would we not be disrespecting 

the people of the territory in not doing that? That is my dilemma, 

and I wish you would help me to figure out—I feel I would be disrespecting the people of the territory to send them a document and 

ask them to come out—you will be asking them to come out and 

vote on it. And it does not meet constitutional muster. I feel like 

I would be derelict in my duty, and the Congress would be derelict 

in its duty. 

Governor DEJONGH. Well, Delegate Christensen, the dilemma 

that you are dealing with is the very same dilemma that I dealt 

with when I was initially given the proposed constitution and why 

I did not immediately send it to the President, because I did not 

feel when I received it that it, in fact, represented what was required by public law, in addition to all of the issues having to do 

with constitutionality. It took a court decision, which never dealt 

with the issues of my concern, but had to deal with process—and 

I decided that it was better to put that process forward, allow the 

constitution to go through because I look at it not just with respect 

to this event or this Congress. But it is a political maturation process that started from the 1917 to the first elected Governor to the 

first elected delegate, and it is a process that we have to respect. 

On the day that I decided to send the document to the President, 

the President transmitted it to the Congress, and you are now considering it. I do believe that the people of the Virgin Islands have 

a right to determine whether, in fact, they accept it and have the 

challenges that will come, or they reject it on its face. I think for 

us not to do that would, in fact, be disrespectful to our constituents 

as voters because I think they have a right since they did elect the 

delegates to make that determination. 

It is a conflicting position, and it is a conflicting position that I 

initially had earlier in the middle of 2009 when I initially did not 

send the document. But having reached to this point, I do believe 

that for the process to go forward, for us not to abdicate the rights 

of self-governance and look at Congress to write our rules and our 

regulations, we need for it to go forward based on what the delegates of the constitutional convention put forth and let the determination lie with the process for rending the results in the vote. 

Mrs. CHRISTENSEN. Did anyone else want to answer that question? 

Mr. RICHARDS. I wish also to respond. Let me say from the onset 

that I am not in agreement that it is violation of the Enabling Act. 

That is pointed out by the report done by the Department of Justice Assistant Attorney General that was submitted when the document transmitted. One of the things that we ought to keep in mind 

is that the Enabling Act is some 34 years old, and a lot has transpired in the Virgin Islands since the Enabling Act. 

As a matter, our Congressman Young that just left, when he 

chaired a committee on May 17 of 2000 that I testified before, with 

then Governor Turnbull, Senator-present Richards, Senator 

Redfield in his capacity as the state chair for the Republican Party, 

myself in my capacity as state chair for the Independent Citizens 

Movement, that piece of legislation was an attempt to clarify some 

of the requirements of the Enabling Act. And because we failed to 

be able to recognize where we are today and what was enacted in 

34 

1974 and its applicability, I think we find ourselves in this particular conundrum. 

More importantly, I think that the resident votes of any district, 

any place, any city, any state, are the persons that have equal importance than any one of us that are elected leaders. None of us 

would be elected to a position without the resident voters. And if 

the resident voters have dictated through their selection of individuals on a constitutional convention to draft a document, then I 

think that these elected voters should be intelligent enough to 

make a determination on something that they can accept or do not 

accept. And that is basically my fundamental concern with the 

issue, that if anyone of us, whether we are elected as the Governor, 

Lieutenant Governor, or Senate Presidents or members of the constitutional convention, who in some instances were being referred 

to as a minority or different opinion members of the constitutional 

convention—how many times does a person have a bite of the 

apple? That is like me being voting for something I did not vote in 

the majority past, and then my job is to go about, campaign, and 

ask it not to become law, though a majority of individuals—I mean, 

what is democracy supposed to mean to us? And I think that is basically my concern. 

Ms. BORDALLO. Is that it? 

Mr. JAMES. I would not say that would be a dereliction of your 

duty to send it back the way it is. We were elected by the people 

of the Virgin Islands to bring this product to where it is today, and 

it was not just by anybody. It was done by professionals, Lieutenant Governors, Governors, politicians, professors. You had attorneys. You had a district court judge. So they were all elected, and 

I must say that it was a cross-section of individuals that were 

elected. And this proposed was actually proposed, as I indicated, by 

two-thirds vote. And it is a process. So it is the process of Congress 

if you will choose to send it back. That is one of the processes that 

you can use without doing any modifications. And we will be more 

than happy to have the people of the Virgin Islands continuing 

with their rights to fulfill and vote on it and make it pass, or if 

they feel not to, then it will fail. 

Governor DEJONGH. Delegate Christensen, could I also add that 

even if it is challenged legally, we have a sophisticated judiciary 

system. We have the superior court. We have the supreme court 

now as appellate, and we also have the district court. So even to 

the extent that there is a challenge, we can feel comfortable that 

the process begins in the court system and in the judicial system 

that is comprised of local, and where local precedent is established. 

And you go through from superior to the supreme to the district. 

Mrs. CHRISTENSEN. My times is up. 

Ms. BORDALLO. Yes. I thank the gentlelady from the Virgin 

Islands. And now I would like to recognize the representative from 

Puerto Rico, Mr. Pierluisi. 

Mr. PIERLUISI. Thank you, Chairwoman Bordallo. Thank you. 

Thank you all for appearing. As you know, I represent Puerto Rico, 

the neighboring islands of Puerto Rico. And I have to say that I feel 

torn, torn because on the one hand I believe deeply in the principle 

of self-government. The U.S. citizens of the Virgin Islands, just like 

their fellow Americans in the States and sister territories, should 

35 

aspire to be governed by laws that reflect their own principles and 

beliefs, not by laws that are established by others. So I am all for 

you. 

The fact is, I represent a territory, and an unincorporated territory that has its own constitution since 1952. And that constitution 

was approved by this Congress. The constitution on its face doesn’t 

say that Puerto Rico is an unincorporated territory. The constitution doesn’t say on its face that Puerto Rico is subject to the territory clause of the United States constitution, yet the courts in the 

U.S., U.S. courts, have consistently so ruled since 1952 until the 

present time. 

So even though I know that this exercise of self-government is 

limited by its very nature because of the status that we both hold, 

the U.S. Virgin Islands and Puerto Rico, I commend you. You 

should have your own constitution. And I cannot wait for the day 

that this Congress approves your constitution. 

Having said all of that, I am torn because I guess now the fact 

that I am a former attorney general comes in the way. It troubles 

me that knowing that the Justice Department, the U.S. Justice Department, is expressing some reservations, that I am going to simply sitting here as a Member of Congress let the clock run, wait 

60 days, and simply allow this to go to the Virgin Islands for a 

vote, and ignore the fact that I am being told that there are some 

issues. 

So I wonder whether—and I raise this before you as well as before my colleagues—whether at the very least we could issue a resolution expressing the sense of Congress that there could be some 

provisions in this constitution that could be subject to legal challenge, but that in deference to the right of self-government of the 

people of the Virgin Islands, we are returning it to the people of 

the Virgin Islands for a vote. At the very least, we should do our 

duty. We should express what we might collectively believe in. 

That is my take on this. 

Again, I am all for you. I want this to happen. But something 

in me tells me you cannot ignore that there are some flaws and 

that you should at least try to express that when you do what you 

are called to do on this occasion. So that is all I will say. 

On the rum issues, by the way, you know my position, Governor. 

This is not the time or occasion. I hope we get a hearing somewhere where we can try to find a just solution. I have hated every 

minute of this controversy, and I hope we find a just solution to 

it. But this is not the place or the time to go into that. 

Those are my feelings, my views. If any one of you wants to comment on them, I will be glad to listen. 

Mr. RICHARDS. If I could just say quickly, for the record—and I 

appreciate the position that you find yourself in, and a good position that you may also place yourself in is the former position that 

was held by Juan Melecio when he served as a state electoral commission head. And the last privacito that you all had in the late 

1990, early 1980s—and that position is a manager of the process. 

And I sincerely believe that somebody—the concerns and issues 

raised by the Justice Department are issues that should be allowed 

to be brought before a court if the document is adopted. There is 

no one in this process more important to me than the voters. 

36 

None of us, whether you are a Member of Congress, you are a 

member of the Virgin Islands or you are the Governor—and I think 

that irrespective of some of the concerns that we ought to allow— 

although we are responsible to lead, we ought to allow these persons that began this process to have the opportunity to vote on this 

document. And I understand the issue as an attorney. And no pun 

was intended earlier in regards to your position. 

Governor DEJONGH. If I could address both issues. The first issue 

is one of if an issue is going to come up at the next committee that 

goes from Alaska to Puerto Rico, we are going to have a very long 

conversation. And as you well know, the meeting that I initiated 

to which you went to in Puerto Rico with our delegate, we are still 

waiting for an answer with respect to a question that we asked of 

the Puerto Rico delegation to get back to us on, where it is has not. 

And at the committee hearing, we will have a chance, I assume, 

to go into greater detail on that issue. 

With respect to having a sense of the committee with respect to 

the items in the constitution that the Justice Department has 

brought up of issues of concern, that is clearly in my opinion within 

your right to do, to give a sense. That is something that you should 

consider. Irrespective of that, I still believe, however, that the constitution, proposed and draft constitution sent up, should in fact 

still go back to the people of the Virgin Islands to be consistent to 

a process that has taken us to this point. And if it takes us to a 

sixth constitutional convention, then there will be a better constitutional convention, and each one will deal with the issues until we 

get there. 

Ms. BORDALLO. I want to thank the gentleman from Puerto Rico. 

And now the gentlelady from the Virgin Islands has a couple more 

questions before we go into our second panel. 

Mrs. CHRISTENSEN. True. And I will try to be very brief. Thank 

you, Madame Chair. To the assistant attorney general. The section 

in the constitution that provides for the government to have the 

power to manage, control, and develop the natural and marine resources comprising of the submerged lands, inlets, and keys is very 

similar to a bill that I have introduced in several congresses to expand the territorial submerged lands. But the committee has never 

taken it up because the support was just not there. 

Would you please explain the problems you see in this provision, 

and let me know if it rises to the level of violating the dictates of 

the authorizing legislation? Or is it just something that is of concern, but could be worked out? 

Mr. CEDARBAUM. Thank you, Congresswoman. I think our fundamental concern is that article 12, section 2, which is the section, 

as you indicated, that addresses territorial waters and marine resources, is unclear. And to the extent that it might be read as asserting sovereignty of the territorial government as against the sovereignty of the United States, that would be troubling and should 

be changed. 

At the same time, as you mentioned, you may have a bill before 

Congress—I am not familiar with that particular piece of legislation. But as we indicated in our memo, in line with that first fundamental point, these issues are all subject to Congress’s control. 

So if Congress wants to convey to the Virgin Islands certain rights 

37 

to control some of these marine resources, that is within Congress’s 

power, and it is free to do so. 

Mrs. CHRISTENSEN. Thank you. Well, with respect to, for example, the needing to clarify that issue, I wanted to ask Senator Richards, as the only representative from the legislature at this panel, 

if the local legislature would ever consider reconvening the convention to consider the changes suggested by the Justice Department 

before the final document is sent to the people for vote. 

Mr. RICHARDS. I only smile because you put me in a predicament 

now. The predicament is that I didn’t vote for the local legislature 

to conduct this Fifth Constitutional Convention process because I 

sincerely believe that it is difficult to write a document of what you 

want to do, where you want to go, if you don’t know basically who 

you are and what you are about. And that is what the political status is about. And so I was one of two that dissented in voting to 

convene a Fifth Constitutional Convention. 

I believe if, in fact, this is not adopted and we find ourselves 

back to square one, and if the Congress makes any changes to the 

document that is before us, it is no different than us having voted 

on the revised Organic Act because now it becomes a congressional 

document. And so I really can’t say what—— 

Mrs. CHRISTENSEN. Well, I am saying if—— 

Mr. RICHARDS. I can’t say what the legislature will do. As you 

notice from my sign, I am the Minority Leader. So I can’t speak 

what the majority of the members would. I really can’t. I really 

can’t tell you. 

Mrs. CHRISTENSEN. Let me just ask one other question that anybody might want to answer then. Why do you think that the authorizing legislation provided for the U.S. Congress to be able to 

amend the document before sending it back to the people? 

Mr. RICHARDS. Well, I can answer that, at least in my opinion, 

in one word, because we are still a possession. 

Mrs. CHRISTENSEN. And we are. That is a fact. 

Mr. RICHARDS. And they want to maintain jurisdiction over the 

piece of property that they bought in 1917. 

Governor DEJONGH. But that was the enabling legislation. 

Mrs. CHRISTENSEN. Yes. 

Governor DEJONGH. That does not mean that this Congress and 

this body needs to continue that. You can, in fact, send it back and 

continue the maturation process that is necessary with respect to 

reaching the final determination of a constitution written by Virgin 

Islanders. 

Mrs. CHRISTENSEN. Right. We do have the alternatives before us 

to send it back, or to amend it or, in fact, to reject it. And even 

if this body on this side of the Capitol were to amend it, it is still 

very possible that it would come back to the territory in its current 

form. Thank you, Madame Chair. 

Ms. BORDALLO. I thank the gentlelady from the Virgin Islands. 

And again I want to thank you very much, Governor, for coming 

over to Washington for this hearing. 

Governor DEJONGH. Thank you. 

Ms. BORDALLO. And to thank you representative from the Department of Justice, the senator, and of course—— 

Mr. CEDARBAUM. Thank you. 

38 

Ms. BORDALLO.—my fellow colleague of many years ago, Lieutenant Governor—— 

Mr. JAMES. Thank you. 

Ms. BORDALLO.—and also the president of the constitution. And 

I also want to remind you that the Subcommittee may have additional questions for you. And if you could, we would like to ask you 

to respond to these in writing. 

Governor DEJONGH. Of course. Thank you very much. 

Ms. BORDALLO. And now the witnesses for the next panel are all 

comprised of five delegates to the Fifth Constitutional Convention. 

We welcome on the second panel—we would like to recognize Mr. 

Adelbert M. Bryan, Mr. Gerard Marlow Emanuel, Dr. Lois HassellHabtes, Dr. Eugene A. Petersen, and Mr. Douglas Brady. Please be 

seated. 

[Pause] 

Ms. BORDALLO. Lady and gentlemen, thank you very much for 

joining us today. And I will now recognize you each for five minutes, in the order that you are seated. Again, please be assured 

that your full statement will be entered into the official record, and 

we would appreciate your summation of the key points. The red 

timing light is before you, and we may not be as—what is the word 

I want to use—liberal on the second panel. The Governor and a few 

of the elected officials did go over time, but please be considerate 

because your full statement will go on the record. 

So again, Mr. Bryan, we will begin with you. Please proceed. 

STATEMENT OF ADELBERT M. BRYAN, DELEGATE, 

FIFTH CONSTITUTIONAL CONVENTION 

Mr. BRYAN. Good afternoon. I have a question, please. Good 

afternoon, Chair Bordallo. I have a question. You mentioned earlier 

that the elected individuals would have five minutes also, right? 

Ms. BORDALLO. Yes. 

Mr. BRYAN. So myself, Mr. Emanuel, and Ms. Habtes are elected 

members of the convention. 

Ms. BORDALLO. Oh, well, if you are an elected official, then you 

go ahead. 

Mr. BRYAN. Thank you very much. 

Ms. BORDALLO. Please try to keep it concise. Thank you. 

Mr. BRYAN. OK. Thank you very much. Again, good afternoon, 

Madame Chair Bordallo. I am Adelbert M. Bryan, at-large delegate 

of the Fifth Constitutional Convention, and I represent the majority population of my native land. I was born and raised in the Virgin Islands. 

I would like to begin my testimony with historical facts, national 

record, and quotations. ‘‘We hold these truths to be self-evident; 

that all men are created equal; that they are endowed by their creator with inherent and inalienable rights,’’ end of quote. 

Quote, ‘‘Nothing is more certainly written in the book of fate, 

than that these people are to be free; nor is it less certain that the 

two races, equally free, cannot live in the same government. Nature, habit, and opinion have drawn indelible lines of distinction 

between them. It is still in our power to direct the process of emancipation and deportation, peaceably, and in such slow degree, as 

that the evil will wear off insensibly, and their place be, on an 

39 

equal basis, filled up by free white laborers. If, on the contrary, it 

is left to force itself, on human nature must shudder at the prospect held up,’’ end of quote. 

The actual words of Thomas Jefferson, the man who has been 

called the author of America, the former quote being the Declaration of Independence before it being edited by the Congress. These 

words strike at the very foundation of the governmental process of 

the Fifth Constitutional Convention of the Virgin Islands of the 

United States of America. 

In 1917, the United States purchased the discovery rights of the 

Danish West Indies from the crown of Denmark. Then as is now, 

the preponderance of the islands’ population is African descendants. At the time of the transaction, the international laws in effect 

between European nations, which included the United States as 

enshrined in Article One, Section Eight of the U.S. Constitution 

were called the Laws of Nations. Under the heading of the Rights 

of Property, the Laws of Nations denies sovereignty to the native 

occupiers of their land. It was and is a code against nonwhites like 

our ancestors, who were at the time free people, human beings, 

since July 3, 1848, 1863, 1865, and thereafter the 13th Amendment 

to the U.S. Constitution. 

The U.S. Congress took control of the islands with the official 

title of Unincorporated Territory of the United States of America, 

a designation the Supreme Court defined as an appurtenance, a 

possession of, but not a part of the United States. These are not 

fertile circumstances for the development of self-government. As 

the 93-year history of the Virgin Islands painfully indicates, autonomy is so closely regulated, it defies definition. 

Quote, ‘‘I believe this observation will be found generally true, 

that no two people are so exactly alike in their situation or circumstances as to admit the exercise of the same government with 

equal benefit, that a system must be suited to the habits and genius of the people it is to govern, and must grow out of them,’’ end 

of quote. Spoken by Mr. Charles Pinckney, delegate from South 

Carolina in the 1787 convention on Monday, May 14th, in Philadelphia, Pennsylvania. Mr. Pinckney read from a prepared speech to 

his fellow delegates, offering his vision for the new nation. ‘‘Conquest or superiority,’’ end of quote, he said, ‘‘among other powers 

is not or ought not to ever be the direct object of a republican system,’’ end of quote. 

As was the case when Mr. Thomas Jefferson wrote of the inherent and inalienable rights, Mr. Pinckney would not have imagined 

an unincorporated population of African descendants. Yet this is 

the crucible of the issue of self-government in the Virgin Islands 

of the United States. The U.S. Constitution still embraces the Laws 

of Nation that condemns sovereignty to people of color, a Constitution that is currently defended by an African-American President. 

If not now, when will the time be right for the majority population of the Virgin Islands to design a government suited to their 

habits and genius. An appurtenance by its very nature is temporary. Ninety-three years should be more sufficient time for the 

Congress to deem native Virgin Islanders to draft an identity for 

their key society. 

40 

It is a legitimate government process for an African-descended 

population to choose its government, as it was for an African-American to win the presidency. Both are lawful ambitions that wouldn’t 

raise an eyebrow if not for raise. Should the Virgin Islands people 

apologize for aspiring to a government more suited for their genius? 

The proposed Fifth Constitution is not in contravention to the 

United States Constitution. While its style may be different, the 

spirit of liberty is identical. The intent is to accommodate Virgin 

Islanders within the framework of the Federal laws. Less than 20 

percent of the Virgin Islands population is other than African descendants. Most of the minority populations are white, and they 

are influential and resourceful. Should their dissenting vote on the 

document be anything more than a minority protest? Is the African-American led nation still of the psyche of Thomas Jefferson? 

Do we today believe that two races equally free cannot live in the 

same government? But we do agree with the third President that 

is in our interest and your powers to direct the process. 

In the spirit of moral human rights, dignity, and fair play, we 

urge this body to accept the proposed constitution before you as a 

best effort at compromise without capitulation. The people of the 

Virgin Islands have called for a more compatible government better 

suited to our aspirations of growth and development. 

I would thank you for your time. 

[The prepared statement of Mr. Bryan follows:] 

Statement of Adelbert M. ‘‘Bert’’ Bryan, Delegate, 5th Constitutional 

Convention, St. Croix, Virgin Islands of the United States of America 

‘‘We hold these truths to be self evident; that all men are created equal; that they 

are endowed by their creator with inherent and inalienable rights;’’ 

‘‘Nothing is more certainly written in the book of fate, than that these people are 

to be free; nor is it less certain that the two races, equally free, cannot live in the 

same government. Nature, habit, opinion have drawn indelible lines of distinction 

between them. It is still in our power to direct the process of emancipation and deportation, peaceably, and in such degree, as that the evil will wear off insensibly, 

and their place be, on an equal basis, filled up by free white laborers. If, on the 

contrary, it is left to force itself, on human nature must shudder at the prospect 

held up.’’ 

The actual words of the man who has been called the Author of America, as 

quoted in the ‘‘Autobiography of Thomas Jefferson’’. The former quote being the Declaration of Independence before being edited by the Congress. 

These words strike at the very foundation of the governmental purpose of the 

Fifth Constitutional Convention of the Virgin Islands of the United States of 

America. 

In 1917, the United States of America purchased the discovery rights of the Danish West Indies from the Crown of Denmark. Then, as now, the preponderance of 

the islands population is African descendants. At the time of the transaction the 

international laws in effect between European nations, which included the United 

States, as enshrined in Article One, Section Eight of the Constitution were called 

the Laws of Nations. Under the heading of the Rights of Property, the Laws of Nations denies sovereignty to the native occupiers of land. It was, and is, a code 

against nonwhites like our ancestors; who were at the time free people ‘‘human 

beings’’ since July 3, 1848, 1863, 1865 and thereafter the Thirteenth Amendment 

of the U.S. Constitution. 

The United States Congress took control of the islands with the official title of 

the Unincorporated Territory of the Virgin Islands of the United States. A designation the Supreme Court defined as an appurtenance, a possession of, but not a part 

of the United States of America. 

These are not fertile circumstances for the development of self-government. As the 

ninety-three year history of the Virgin Islands of the United States of America painfully indicates, autonomy is so closely regulated it defies definition. 

41 

‘‘I believe this observation will be found generally true: — that no two people are 

so exactly alike in their situation or circumstances as to admit the exercise of the 

same Government with equal benefit: that a system must be suited to the habits 

and genius of the people it is to govern, and must grow out of them.’’ 

Spoken by Mr. Charles Pinckney, Delegate from South Carolina to the 1787 Convention on Monday, May 14th, in Philadelphia, Pennsylvania. Mr. Pinckney read 

from a prepared speech to his fellow delegates, offering his vision for the new nation. ‘‘Conquest or superiority’’, he said ‘‘among other powers is not or ought not 

ever to be the object of republican systems’’. 

As was the case when Mr. Thomas Jefferson wrote of the inherent and inalienable 

rights, Mr. Pinckney would not have imagined an unincorporated Territory populated by African descendants. Yet, this is the crucible of the issue of self-government 

in the Virgin Islands of the United States of America. 

The Constitution still embraces the laws of Nations that condemns sovereignty for 

people of color. A Constitution that is currently defended by an African-American 

President. 

If not now, when will the time be right for the majority population of the Virgin 

Islands of the United States of America to design a government suited to their habits and genius? An appurtenance by its very nature is temporary. Ninety-three 

years should be more than sufficient time for the Congress to deem Virgin Islanders 

fit to craft an identity for their tiny society. 

It is as legitimate a governmental purpose for an African descended population 

to choose its government, as it was for an African-American to win the Presidency. 

Both are lawful ambitions that wouldn’t raise an eyebrow if not for race. Should the 

Virgin Islands apologize for aspiring to a government more suited to their genius? 

The Fifth Constitutional Convention draft is not in contravention to the U.S. Constitution. While its style may be different, the spirit of liberty is identical. The intent is to accommodate Virgin Islanders within the framework of Federal laws. 

Less than twenty percent of the Virgin Islands population is other than AfricanAmerican descendants. Most of the minority population are whites. Not all whites 

are in opposition, but too many are, and they are influential and resourceful. Should 

their dissenting vote on the document be anything more than a minority protest? 

Is the African-American led nation still of the psyche of Thomas Jefferson? Do we 

today believe the two races equally free, cannot live in the same government? But 

we do agree with the Third President that it is in your power to direct the process. 

In the spirit of enlightenment and fairplay, we urge this body to accept the Draft 

Constitution before you as the Fifth Constitutional Convention’s best effort at compromise without capitulation. The people of the Virgin Islands have called for a 

more compatible government, better suited to their aspirations of growth and development. 

Ms. BORDALLO. I thank you very much, Mr. Bryan, for your 

testimony. And now I would like to recognize Mr. Emanuel for five 

minutes. 

STATEMENT OF GERARD MARLOW EMANUEL, DELEGATE, 

FIFTH CONSTITUTIONAL CONVENTION 

Mr. EMANUEL. Madame Chair and other distinguished members 

of the Subcommittee, my name is Gerard Emanuel. I am a delegate 

to the Fifth Constitutional Convention of the Virgin Islands. I am 

honored to have this opportunity to appear before you on the proposed constitution of the United States Virgin Islands. Today is exactly two weeks before the 93rd anniversary of the sale of the Danish West Indies to the United States of America, at which time 

those islands became an unincorporated territory of the U.S. 

Our proposed constitution on the whole should therefore be considered within the context of the unique position of the Virgin 

Islands as an unincorporated territory of the U.S., similar to the 

status of our sister territories. In advance of congressional consideration of the proposed constitution, the U.S. Justice Department 

was directed by President Barack Obama to provide its view on the 

42 

proposed document. My testimony is intended to address several 

issues which were raised in the Justice Department review. 

The first issue relates to the recognition of United States sovereignty. I wish to emphasize that the work of the Fifth Constitutional Convention of the Virgin Islands was not intended to suggest 

any alteration in the unincorporated territorial status. The proposed constitution before this body fully recognizes the sovereignty 

of the United States over the territory through its acknowledgment 

of the unincorporated territorial status. 

Former Chair of the United States Energy and Natural Resources Committee Lowell Weicker, during congressional review of 

the 1980 proposed Virgin Islands constitution observed that the 

phrase ‘‘unincorporated territory,’’ was not an implicit but an explicit statement of the sovereignty of the United States. Such recognition is also confirmed in the 2010 Justice Department memorandum, which states that a number of provisions in the present 

proposed constitution considered together bring it into substantial 

compliance with the Enabling Act’s requirement that the proposed 

constitution recognize U.S. sovereignty and the supremacy of Federal law. 

Madame Chair, another issue raised in the Justice Department 

memorandum was the provisions related to the recognition of ancestral native Virgin Islanders and native Virgin Islanders. The rationale for the inclusion of these sections should be seen within the 

context of the unique socio-cultural and political history of the territory. 

Prior to the transfer of jurisdiction from Denmark to the United 

States by the treaty accession in 1917, the people of the Danish 

West Indies, who are largely of African descent, were enslaved for 

over 200 years with all of the attendant abuses. On July 3, 1848, 

the Danish government was forced to ratify the freedom of the 

enslaved ancestral Virgin Islanders due to a meticulously planned 

revolt. By this act, the newly freed Africans now considered themselves as full citizens, equal to the Europeans for whom they still 

worked. 

However, they were quickly disillusioned by the labor act of January 1849, a euphemism for a code of decrees that virtually placed 

them back into slave-like conditions once again. This left them no 

money to invest or advance themselves economically, socially, or 

politically. Our ancestors resisted this recapitulation by Denmark 

for 30 years, which culminated in a laborers’ revolt in 1878 known 

as the Fireburn. 

After this, our ancestors believed they would be fully able to participate as citizens in their homeland. But once again, they were 

disillusioned because the Danish colonial laws provided prohibitive 

income and property ownership requirements that precluded the 

laborers from voting and running for office. Therefore, whether 

during or after chattel slavery, whenever our ancestors sought to 

effectuate social and political reform, they had to do so violently because there were no legal mechanisms available to them to obtain 

their civil and human rights. 

Sadly, Madame Chair, these discriminatory laws remained in effect for the first 20 years of American rule. The 1917 treaty accession made provisions for Danish citizens in the territory to either 

43 

retain their citizenship or to become United States citizens. No 

such choice was given to the majority native population. Their 

rights were to be determined by the U.S. Congress. 

For 10 years, they were devoid of citizenship. Accordingly, the 

1927 and 1940 Citizenship and Nationality Acts defined them as 

natives who are not citizens or subjects of any foreign country. The 

2009 edition of Caribbean Perspectives, a journal published by the 

University of the Virgin Islands, pointed out, ‘‘Quite apart from the 

mandate to create or recreate structures of government through a 

local constitution to replace the United States Revised Organic Act 

of 1954 was the task of defining/redefining a political and cultural 

identity amid changing demographics.’’ 

The present Fifth Constitutional Convention has approved the 

proposed constitution before you within this historical framework. 

The basis for the recognition of the ancestral native and native Virgin Islander lies in the treaty accession and in relevant Federal 

statutes. This acknowledgment is intended for the protection of the 

declining native population and the preservation of the disappearing culture and traditions of a people. 

The historical context and the need for effective reparative action 

represent the compelling state interest we strongly feel justifies the 

relevant provisions. 

In conclusion, Madame Chair, the annex to this statement, which 

I am attaching for the record, contains the historical basis for a 

compelling state interest to justify the provisions for differential 

treatment of ancestral native and native Virgin Islanders. I wish 

to thank your Subcommittee for this important opportunity to provide testimony on the proposed constitution of the United States 

Virgin Islands. Thank you, Madame Chair. 

[The prepared statement of Mr. Emanuel follows:] 

Statement of Gerard M. Emanuel, Delegate to the Fifth Constitutional 

Convention of the United States Virgin Islands 

Madam Chair and other distinguished members of the Subcommittee, 

My name is Gerard Emanuel. I am a delegate to the Fifth Constitutional Convention of the Virgin Islands. I am honored to have this opportunity to appear before 

you on the proposed constitution of the U.S. Virgin Islands. 

Our proposed constitution, on the whole, should be considered within the context 

of the unique position of the Virgin Islands as an unincorporated territory of the 

United States, similar to the status of our sister territories in American Samoa and 

Guam, and the commonwealths of the Northern Mariana Islands and Puerto Rico, 

respectively. While the nature of the constitutional arrangements in each of these 

territories varies, the commonalities which we all share are the applicability of the 

Territorial Clause of the United States Constitution and our status of un-incorporation. 

In advance of Congressional consideration of the proposed constitution, the U.S. 

Justice Department was directed by President Barak Obama to provide its views on 

the proposed document. My testimony is intended to address several issues which 

were raised in the Justice Department review. 

The first issue relates to the recognition of United States sovereignty. I wish to 

emphasize that the work of the Fifth Constitutional Convention of the Virgin 

Islands was not intended to suggest any alteration in the unincorporated territorial 

status, but rather to determine the parameters of the prevailing status. This has 

come some thirty years since the Virgin Islands last attempted to write a constitution. The proposed constitution before this body fully recognizes the sovereignty of 

the United States over the territory through its acknowledgement of the unincorporated territorial status. 

Former Chair of the United States Senate Energy and Natural Resources Committee Lowell Weicker, during Congressional review of the 1980 proposed Virgin 

Islands constitution, observed that the phrase ‘‘unincorporated territory’’ was ‘‘an 

44 

1 Caribbean Perspectives, A Journal of the Eastern Caribbean Center of the University of the 

Virgin Islands, January, 2009. 

explicit statement of the sovereignty of the United States.’’ Such recognition is confirmed in the 2010 Justice Department memorandum which states that ‘‘a number 

of provisions in the present proposed constitution considered together bring it into 

substantial compliance with the Enabling Act’s requirement that the proposed constitution recognize U.S. sovereignty and the supremacy of federal law.’’ 

Madam Chairman, another issue raised in the Justice Department memorandum 

was the provisions related to the recognition of ancestral Virgin Islanders and native Virgin Islanders. The rationale for the inclusion of these sections should be seen 

in the context of the unique socio-cultural and political history of the territory. 

Prior to the transfer of jurisdiction from Denmark to the United States by the 

Treaty of Cession in 1917, the people of the Danish West Indies, who were largely 

of African descent, were enslaved for over two hundred years with all of the attendant abuses. 

On July 3, 1848, the Danish government was forced to ratify the freedom of the 

enslaved African Ancestral Virgin Islanders due to a meticulously planned, nonviolent revolt by the enslaved. By this act, the newly freed Africans now considered 

themselves as full citizens equal to the Europeans for whom they still worked. However they were quickly disillusioned by the Labor Act of January 1849, a euphemism 

for a code of decrees that again virtually placed them into slave-like conditions. 

They were compensated for their labor, but were charged excessively for all their 

basic needs and at the end of the day had no money to invest or advance themselves 

economically, socially or politically. 

Our ancestors resisted this recapitulation by Denmark for thirty years, which culminated in a laborers’ revolt in 1878 known as the ‘‘Firebun’’ staged in order to secure a living wage. After this, our ancestors believed they would be able to fully participate as citizens in their homeland, but were once again disillusioned. In 1852, 

the Danish Colonial Laws were enacted and subsequently revised in 1863 and 1906. 

These laws established the guidelines for only limited native participation in the political process in the Danish colony. 

The irrefutable impact of these laws on the majority of the native population was 

to continue to prevent their legitimate participation in the political process, and to 

deny them citizenship. Specifically, there were prohibitive income and property ownership requirements that precluded the laborers from voting and running for office. 

Therefore, whether during or after chattel slavery, whenever our ancestors sought 

to effectuate social and political reform, they had to do so violently, because there 

were no legal mechanisms available to them to attain their civil and human rights. 

Sadly, these discriminatory laws remained in effect for the first 20 years of American rule. 

The 1917 Treaty of Cession made provisions for Danish citizens in the territory 

to either retain their citizenship, or to become United States citizens. No such choice 

was given to the majority native population. Their rights were to be determined by 

the United States Congress. The natives did not become U.S. citizens immediately, 

and for ten years they were devoid of citizenship. Accordingly, the 1927 and 1940 

U.S. Citizenship and Nationality Acts defined them as ‘‘natives who are not citizens 

or subjects of any foreign country.’’ The territory was governed by the United States 

Navy from the transfer in 1917 until 1931 when civilian rule was instituted by way 

of governors appointed by Washington. 

By the 1960s, the territory experienced an unprecedented growth in population, 

primarily through immigration to fill labor needs in the developing tourism and industrial sectors. Reliable estimates of new residents totaled 34,000 between 1960— 

1970 alone, exceeding the entire 1960 population of the territory. It was noted in 

the 2009 journal ‘‘Caribbean Perspectives’’ a publication of the University of the Virgin Islands that: 

‘‘The temporary worker system which had been legislated by the U.S. Congress pursuant to U.S. immigration laws facilitated the movement of mainly African descendents from other parts of the Caribbean to the U.S. Virgin 

Islands to meet growing labour needs. Concerned with the projected financial impact of the extension of public services to the new residents, the U.S. 

Virgin Islands legislature sought to use its local authority to regulate access 

to education, housing and other areas. This was later overturned by the 

U.S. courts and applicability of U.S. equal protection laws. A specific U.S. 

immigration measure enacted in 1981 also provided for a process of achieving permanent residency status in the territory, and ultimately U.S. citizenship.’’ 1

45 

2 ibid 

It is within this historical context that four constitutional conventions were held 

in the U.S. Virgin Islands between 1964 and 1980. As the same University of the 

Virgin Islands article pointed out: 

‘‘Quite apart from the mandate to create/re-create structures of government 

through a local constitution to replace the U.S. Revised Organic Act of 1954 

was the task of defining/re-defining a political and cultural identity amid 

changing demographics.’’ 2

The present Fifth Constitutional Convention has approved the proposed constitution before you within this historical framework. The provisions of recognition of native Virgin Islanders were included in the text in the wake of the continued decline 

of the native population, and the gradual disappearance of Virgin Islands culture 

and traditions. Similar provisions appear in laws and agreements protecting native 

populations in other United States territories. 

The basis for the recognition of the ancestral and native Virgin Islander in the 

proposed constitution lies in the Treaty of Cession and in relevant federal statutes, 

and is intended for the protection and preservation of the culture and traditions of 

a people. The historical context, and the need for effective reparative action, represents the compelling state interest we strongly feel justifies the relevant provisions. 

Conclusion 

Madam Chair, the Annex to this statement, which I am attaching for the record, 

contains the historical basis for a compelling state interest to justify the provisions 

for differential treatment for ancestral and native Virgin Islanders. I wish to thank 

this Subcommittee for this important opportunity to provide testimony on the proposed constitution of the U.S. Virgin Islands. 

Annex 

Historical Background Utilized As Support for Differential Treatment of 

Ancestral and Native Virgin Islanders 

Africans who are the ancestors of Ancestral Natives and Natives, were enslaved 

for over two hundred years in the Virgin Islands. During this time they were subjected to multiple political, social, cultural, religious and economic abuses and were 

denied their inalienable human rights. 

• After slavery officially ended on July 3, 1848, each planter was compensated at 

$50.00 per ex-slave, while the ex-slaves received nothing for hundreds of years 

of forced labor. 1

• A Labor Act of January 26, 1849 was instituted by the planters to keep the 

newly freed laborers in slave-like conditions. This lasted for 30 years until the 

‘‘Firebun’’ of 1878 forced its demise. 2

• In the late 1800’s ‘‘...judges, prison officials, planters and police banded together 

against the laborer to capitalize on his labor. The judge would imprison a laborer on the basis of a complaint from the employer. Once in jail, as punishment, the prisoner would be sentenced to work on one of the estates without 

compensation The prison officials and police would be responsible for enforcing 

the judge’s decree.’’ 3

• The Colonial Council on St. Croix passed laws ‘‘...in an attempt to control the 

laborers and to try to revert the economic and social conditions of the laborer 

to pre-emancipation and pre-labor riot days.’’ 4

• Two of the above laws were 1) life imprisonment for stealing sugar cane; and 

2) imprisonment for debt. 

• When land was provided to the laborers, the worst land was sold to those who 

wanted to farm. For example, agricultural depleted estates that were a financial 

loss and which the government was anxious to dispose of, were sold to the laborers. 5

• Steam Ship Operators paid female coal workers worthless silver coins. In 1892, 

Queen Coziah had to lead a protest to stop this illegal discriminatory practice 

against the African female laborers. 6

• Due to hard economic times in the late 1800’s and early 1900’s laborers were 

forced to migrate to other areas in the region such as Panama to make a living 

where they were paid slave-like wages. ‘‘Meanwhile, all the economic benefits 

and the white collar jobs were reserved for white Americans.’’ 7

46 

• Many Virgin Islanders lost their lives in Panama from malaria and job related 

accidents. 8

• A 1902 Commission observed that Denmark spent ‘‘...too much on government 

officials and soldiers and not enough on schools and hospitals...More attention 

should be paid to agriculture.’’ 9

• The planters were assisted but not the laborers. (ibid.) 

• Several homesteading attempts were instituted; however, the majority of the 

best agricultural land was used for growing sugar cane, and thus the island of 

St. Croix was retained as virtually a mono-economy with little if any economic 

diversification that could have benefited the laborers, many of whom were experiencing starvation.(ibid. p. 224) 

• From the end of slavery until 1936, most laborers were prevented from voting 

or running for any elected office due to the lack of emphasis on proper education as noted by a Danish Commission in 1902, and restrictive income and 

land qualifications imposed by Colonial Laws from 1852 up to 1906. These remained in effect for the first 19 years of U.S. rule of the Virgin Islands. 

• In 1917 only 5.5% of the population could vote. The vast majority of the eligible 

voters were conservative white male landowners.) The majority of those deemed 

ineligible were natives. 10

• For 88 years after slavery, the majority of native Virgin Islanders were 

disenfranchised. Natives have only been enfranchised for 73 years, and have 

only had the right to elect a governor for 38 years. (See 1936 Organic Act, C. 

699, 49 Stat. 1807, & the 1968 Elective governor’s Act, PL 90-496.) 

• In the Treaty of Cession between Denmark and the United States, no provisions 

were made to redress the long history of injustices and discriminatory practices 

perpetrated on the natives, which occurred under Danish rule. (39 Stat. 1706) 

• Preferential treatment was specifically accorded to the Danish Citizens in the 

treaty. Only Congress was given the authority to determine the civil rights and 

political status for the majority of the native population who had no citizenship 

status whatsoever. Natives were not given any rights to choose their status or 

civil rights. (ARTICLE VI of the treaty.) 

• The Virgin Islands was made an unincorporated territory of the U.S. they were 

owned by, but were not fully a part of the U.S. Natives were not made full U.S. 

citizens. Only fundamental protections of the U.S. Constitution were extended 

to them. Only Congress could determine what additional provisions of the U.S. 

constitution would apply. This was totally unlike the pattern of political development used for the mainly white residents in other U.S. territories before the 

Spanish American War. (See Boyer pp. 88-104.) 

• It took Congress ten years to provide a limited version of U.S. citizenship by 

statute to V.I. natives. During that ten year period, natives were treated in a 

subhuman fashion and were not accorded the full protections or privileges of the 

U.S. Constitution. 44 Stat. 1234 in 1927 and 8 USC., Sec. 1406 in 1940. 

• Up until today Virgin Islanders are prevented from obtaining the full protections and rights in the Virgin Islands that all other U.S. citizens living in a 

state obtain at birth or after being naturalized. 

• The U.S. citizenship status of V.I. natives is not guaranteed by the 14th amendment of the U.S. Constitution as it is for all naturalized citizens or for persons 

born in a state or on a military base,). 11

• For the first 10 years of U.S. rule, V.I. natives had no right to trial by jury in 

civil cases, no locally written constitution, no right to vote for president, no voting or non-voting representatives in either house of Congress, could not elect 

a Governor, the vast majority could not vote for their local representatives, or 

run for any office due to income and property ownership restrictions, and they 

were not properly educated. (See Boyer pp. 109-144; & Willocks ch.’s 11-13, pp. 

251-288) 

• Native Virgin Islanders were the victims of racist acts by Naval governors, who 

were specifically chosen from southern states where racist acts towards Blacks 

were commonplace. The following is a direct quote from one of the governors, 

namely Sumner Kittelle. ‘‘I cannot too strongly urge that there be no change 

made in the organic law until a full generation has elapsed...and above all the 

white element must remain in the lead and in supreme control.’’ 12

• Even other government officials and soldiers performed racist acts during military rule, which lasted for the 14 years after the transfer from Denmark. Any 

attempts by natives to change their conditions were met with fierce resistance 

by these U.S. appointed officials. 

• The best jobs were reserved for whites or light-skinned persons. Local women 

felt compelled to copulate with white men to produce lighter-skinned offspring, 

47 

who they hoped would not be subjected to the abuses and other atrocities that 

they faced, (the piel clara syndrome). 13

• Natives were shot at, or forced to perform normally private acts in public. Native leaders such as David Hamilton Jackson, Randolph Innis, Octavius 

Granady, Charles Emanuel, James Roberts, August Burnet and Rothschild 

Francis were maliciously discredited, and vilified by U.S. appointed Governors 

and other officials for writing about and otherwise trying to stop the innumerable abuses against natives. 14

• The laborers were paid starvation wages such as 20 cents a day immediately 

prior to the Transfer to U.S. rule. They formed a labor union and staged a sixweek strike, which placed tremendous additional hardships on them in order to 

receive a reasonable wage. They were forced to leave their homes due to lack 

of money. 15

• Naval Governors had ‘‘...military, legislative, civil and judicial powers and the 

power to abolish the colonial councils.16 Therefore, under U.S. rule the presidentially appointed Governor was virtually a dictator, and in many instances 

performed as such to the detriment of natives. The locals had little or no recourse when they took their fight to court. Even there they were discriminated 

against by the lack of the application of certain parts of the U.S. Constitution 

to the Virgin Islands, (such as trial by jury in civil cases), and by the racist rulings of judges appointed by the Naval Governors. • Some judges were elected under Danish rule, but as indicated before not by the 

majority of the population due to the prohibitive voting restrictions. 17 • The Naval Government resisted providing civil rights to the natives, such as 

Universal Suffrage, an elected governor, local representation in Washington, a 

constitution and civil government.18 Thus natives were denied most of these 

rights for almost 20 years under U.S. rule, (and some rights are still being withheld by the federal government). This continued the disenfranchisement pattern 

that had existed under Danish rule from 1848 after slavery had ended. Hispanic 

natives were denied the right to vote even with the passage of the 1936 Organic 

Act because of an English literacy requirement.19 • Before granting Virgin Islanders U.S. citizenship en masse and by statute in 

the 1920’s, Congress even considered and actually attempted ‘‘annexing the Virgin Islands to Puerto Rico’’, without even seeking to obtain the permission of 

Virgin Islanders. It was only due to massive local protests by natives, that this 

was not done.20 • Local leaders and Virgin Islanders abroad agitated for civil government, a local 

constitution and land grants for locals in the early 1920’s. However their pleas 

fell on the deaf ears of both local and national officials.21 • Naval governors appointed judges who were assigned to persecute any natives 

who sought to implement changes for the improvement of government for locals. 

Governor Philip Williams appointed George Washington Williams in 1924 for 

this express purpose despite protests from natives.22 

• The Naval government intimidated the local press. Native editors were imprisoned allegedly on charges of libel.23 ibid. p.266 

• Government employees were intimidated and some fired for standing up for 

changes that would help Virgin Islanders.24 ibid. p. 267 

• Taxation without representation occurred in the 1920’s. Sugar imported into the 

U.S. was taxed, which caused layoffs. Since locals had no representation in either house of congress and could not vote for president, they had little or no 

viable way of getting their plight heard by federal officials.25 ibid. p. 267 

• Workers were forced to leave their families and homeland to migrate to other 

countries such as Panama, Cuba and Puerto Rico to find work. 26ibid. p. 269. 

• Naval Officials only viewed the problems of natives as economic ones and implemented some economic initiatives. The Native leaders pushed for political reform such as universal suffrage and locally-elected representatives. Their cries 

were ignored by local officials and those in Washington until almost an entire 

generation had passed amid discriminatory acts, flagrant and outright violations of the civil rights of natives by the whites under military rule in the 

1920’s.27 ibid. p. 269. 

• Many other discriminatory acts, flagrant and outright violations of the civil 

rights of natives by the whites under military rule in the 1920’s.28 ibid. pp. 282- 

287 

• At one time in the 1930’s, 29 white men owned 80% of St. Croix and controlled 

the colonial council. They resisted tax increases on their income and property, 

as well as homestead programs for the local natives.29K ibid. p.296

• The federal government instituted homestead programs in the 1930’s, which 

helped locals suffering from unemployment, but according to Willocks, 

48 

‘‘...whatever improvement was made in the unemployment situation was offset 

by increases in the non native population, due to immigration and a high birth 

rate.’’30 ibid. p.300 (Locals had and still have no control over U.S. Immigration 

laws which are particularly injurious to their exercise of their political right to 

choose their leaders and approve constitutional or political status documents. 

When applied to the V.I. due to the small and easily affected population numbers 

and composition, the result can and has been detrimental to Native Self-Determination attempts such as ratifying two local constitutions in the late 1970’s and 

early 1980’s.) • Although the Fair Labor Standards Act was passed, an amendment to it in 

1941 discriminated unfairly against native laborers because it prevented the favorable wage increase provision from being applicable to the V.I.31 ibid. p. 300 • Even though the CCC was brought to the V.I. and did provide training and benefits, the educational programs were not ‘‘...widened...to include the training 

which enrollees receive in the United States.’’32 ibid. p. 303 • St. Croix natives could not get a local 12th grade education until 1935, which 

was 18 years after being under U.S. rule. This affected their ability to obtain 

higher education and prepare themselves for assuming positions of leadership.33 ibid. p. 304 • Women were denied the right to vote until1936 to prevent strengthening the 

black vote, since women made up the majority of the population.34 ibid. p. 309 • Military bases established in the V.I. before World War II, increased racism 

here. Some military personnel brought their racial attitudes and behavior with 

them. Many confrontations occurred, and to not offend the white members of 

the military or lose their business, many local white businesses refused to serve 

native Blacks.35 ibid. p. 317 • Natives originally could not participate in the armed forces. Those who received 

permission had to volunteer after petitioning to have this privilege. Some Natives died as a result, but all experienced blatant racism in Puerto Rico and in 

the U.S. Some of them indicated that they were treated and got along better 

with the German prisoners of wars than they did with the White American 

servicemen.36 ibid. pp. 318-319 • The Legislative Assembly passed a bill into law against discrimination because 

of the expected increase in tourism and white visitors to the territory beginning 

in the early 1950’s. This was to offset the same kind of increase in racism that 

had occurred when the military came here during World War II. White business 

owners opposed the law arguing that ‘‘...such a bill would be bad for tourism, 

because tourists who were accustomed to segregation would be forced into integration. This would chase tourists from the Virgin Islands, which would result 

in the hotel and resort industry suffering considerable losses.’’37 ibid. p. 326 • Policies prejudicial to natives and favorable to persons from the U.S. by some 

appointed Governors even after military rule had ended in 1931 continued, especially under Governor Archie Alexander in the mid 1950’s.38 ibid. p. 329-330 

• Laurence Rockefeller bought 2/3’s of St. John to turn it ‘‘into a millionaire’s retreat.’’39 ibid. p. 332 

• Even though he eventually turned the land over to the National Park, ‘‘natives 

soon found themselves victims of racial and economic discrimination. For example, the Caneel Bay Resort, a part of the national park, was opened to the public, but did not cater to the natives; the natives were being denied the opportunity to purchase land around the exclusive areas. In short, the national park 

was on the verge of taking over the island and turning it into a millionaire’s 

club.’’40 ibid. p. 333 This has occurred, and the Park constantly discriminates 

against natives. The most recent example is its refusal to grant land for public 

purposes, such as for a school for the native population to avoid them having 

to travel off-island to attend high school daily, while conversely allowing private 

businesses such as a hotel to occupy park land for over 40 years, for private 

benefit. 

• The 1960’s produced the greatest population growth primarily by immigration 

that the Virgin Islands had ever seen during American rule. By 1965, natives 

had become a minority in their homeland. Between 1950 and 1965, the population of every other ethnic group other than natives had more than trebled. 

Our relatives and friends from the other Caribbean islands went from 1,000 to 

10,000. Puerto Ricans went from 3,000 to 9,700. Continentals went from 1,500 

to 6,500.41 Boyer pp. 255-256 Natives have still not recovered from the inordinate burdens placed on the infrastructure, such as roads, schools, social services, health care, water and power, etc. 

• Natives do not have any control over population growth by immigration, and 

thus their right to vote for their constitution and their final status is being 

49 

threatened by immigrants from the U.S. and elsewhere, who have outnumbered 

them since the 1960’s. This is a direct and flagrant infringement on the right 

of natives to self-determination as guaranteed under international law.42 (See 

the United Nations Charter, the International Covenant on Civil and Political 

Rights, Resolutions, 1514 (XV), 1541 (XV) and 35/118.) 

• The application of U.S. immigration laws and the freedom of immigrants to buy 

land in the V.I., have also affected the ability of natives to purchase and retain 

land for homes and other enterprises in pursuance of the American dream in 

the V.I. This was specifically noted among other impacts of cultural tourism in 

a 1969 doctoral dissertation by Martin Garson Orlins. The homes built by immigrants from the U.S. in particular, (some of whom are rich retirees, who can 

afford to build extravagant mansions), in many instances have driven property 

values sky high, and thus increased property taxes to a point beyond which 

many natives who were fortunate to buy land, cannot afford to keep their property. Many have been forced to sell property they had wanted to keep in their 

family for their children, grandchildren, and other relatives.43 See study of 

Martin Garson Orlins in Boyer, pp. 254-256. 

Others who would like to purchase land cannot afford to do so. There are also 

many stories about price reductions for land offered to whites that are being denied to natives. 

• Gentrification, which was predicted over 30 years ago by Dr. Marilyn F. 

Krigger, a native U.V.I. professor, is again threatening the realization of the 

compelling state interest of diversity and the right of natives to buy land and 

live where they choose on the islands. The islands are being divided into enclaves for the rich and famous on the one hand and enclaves for the poor natives on the other.44Boyer, Footnote 93, p.282. 

• Furthermore, natives are being forced once again to relocate to other places and 

leave their homeland where their relatives and friends reside and where all of 

their fondest memories are. There is a cultural tie or relationship to the land 

that some migrants do not understand, and it is difficult for many natives to 

simply migrate and leave all they have worked for and built behind, as persons 

who migrate here voluntarily do.45 

• At the rate that immigration is occurring, many Natives are being forced to 

leave their homeland. They soon will become more and more of a marginalized 

minority in their homeland, and will not be able to elect their political officials 

such as senators or even their highest official, the Governor.46 

• Even writing their constitution has been criticized because of the protections 

placed therein to offset the adverse effects on natives caused by the historical 

discrimination by government officials in the V.I. under U.S. rule, the indiscriminate application of U.S. immigration and other laws to the territory, and 

the threat to the preservation of the traditional culture and way of life of the 

natives.46 Personal experience 

• Recently a celebration of piracy that included the picture of President Obama 

in a pirate outfit occurred. This was totally reprehensible to me. Over the years, 

the increased presence of persons from the U.S. mainland has brought with 

them an infusion of questionable cultural practices that are at variance and 

sometimes disrespectful to the local culture. The pirate festival and contest, is 

one such practice, which is threatening to become an institution. Pirates were 

criminals who used these islands to store their booty. There is nothing positive 

about them that we should be celebrating or commemorating.47 (Personal experience) 

• Natives are not similarly situated with immigrants from the U.S. or from other 

countries. The right to U.S. Citizenship by natives is tenuous at best, because 

it is only guaranteed by a statute and not by the U.S. Constitution. Two federal 

officials even recommended granting natives U.S. Citizenship by the 14th 

Amendment to the U.S. Constitution in the early 1980’s when the Fourth Draft 

Constitution was being considered by Congress. One of them pointed out an instance in the mid 1970’s where congress passed a law that removed the right 

of V.I. natives to be U.S. citizens; however, it was caught in time, and no harm 

was inflicted. This could never happen to non-natives or U.S. citizens living in 

one of the states.48 See Herman Marcuse’s testimony at an October 21, 1981 

Hearing of the Senate’s Energy and Natural Resources committee regarding the 

Fourth Constitution of the V.I. of the U.S.A. 

• If the status quo is allowed to continue, these islands will completely become 

an enclave for the rich and famous, and the natives along with the rich culture 

they have created, preserved and practiced, will disappear.49

50 

Notes 

1Willocks, Harold, ‘‘The Umbilical Cord,’’ 1995. p. 193. 

2 ibid. p. 192. 

3 ibid. p. 220 

4 ibid, p. 220 

5 ibid. p. 221 

6 ibid. pp.221-222 

7 ibid. p. 223 

8 ibid. p. 223 

9 ibid. p. 223 10 ibid. p. 314 11See Herman Marcuse’s testimony at an October 21, 1981 Hearing of the Senate’s 

Energy and Natural Resources Committee regarding the Fourth Constitution of 

the V.I. of the U.S.A. 12 12 Boyer, William America’s Virgin Islands, A History of Human Rights and 

Wrongs. 1983, pp. 115-116. 13 (Willocks, p. 283.) 14 Boyer op. cit. p. 114-115 15Willocks. op. cit. p. 229 16 ibid. p. 253 17 ibid. p. 255 18 ibid. p. 263 19 Act of Congress, June 22, 1936, Ch. 699, § 17, 49 Stat. 1811) 20Willocks p. 263 21 ibid. pp. 264-65; & Boyer pp.142-145 22Willocks p. 265 23 ibid. p.266 24 ibid. p. 267 25 ibid. 26 ibid. p. 269 27 ibid. 28 ibid. pp. 282-287 29 ibid. p.296 30 ibid. p.300 31 ibid. p. 300 32 ibid. p. 303 33 ibid. p. 304 34 ibid. p. 309 35 ibid. p. 317 36 ibid. pp. 318-319 37 ibid. p. 326 38 ibid. p. 329-330 39 ibid. p. 332 40 ibid. p. 333 41 Boyer pp. 255-256 42See Ch. 11, Art. 73, Sec.’s (a-e) of the United Nations Charter, the International 

Covenant on Civil and Political Rights, Resolutions, 1514 (XV), 1541 (XV) and 

35/118. 43See Martin Garson Orlins’ study in Boyer, pp. 254-256. 44 Boyer, Footnote 93, p.282. 45Personal experience 46Personal opinion 47Personal experience 48See Herman Marcuse’s testimony at an October 21, 1981 Hearing of the Senate’s 

Energy and Natural Resources Committee regarding the Fourth Constitution of 

the V.I. of the U.S.A. 49Personal opinion 

Ms. BORDALLO. I thank you very much, Mr. Emanuel, for your 

testimony. and I now recognize Dr. Hassell-Habtes for five minutes. 

51 

STATEMENT OF LOIS HASSELL-HABTES, PH.D., DELEGATE, 

FIFTH CONSTITUTIONAL CONVENTION 

Dr. HASSELL-HABTES. Good afternoon, Honorable Madeleine 

Bordallo, Chairperson, and our delegate to Congress for the U.S. 

Virgin Islands, Donna M. Christensen. 

I am grateful and appreciative to be here today to represent the 

people of the Virgin Islands as an elected delegate to the Fifth Constitutional Convention. I would like to express my deep and sincere 

thanks and appreciation to the President of the United States, 

Barack Obama, for sending the constitution of the United States 

Virgin Islands to Congress. 

First of all, I bring greetings from the people in the Virgin 

Islands who understand the time has come for us to be governed 

by a constitution of the Virgin Islands and not by a Organic Act 

written in 1936 and amended in 1954. There have been many Virgin Islanders who attended, listened to, or reviewed the committee 

meetings, hearings, plenary sessions, and their voices and concerns 

have been included in this document. 

Just as the drafting of the U.S. Constitution, arguments, debates, 

differences of opinions have not kept the delegates of the Fifth Constitutional Convention from a united front when it came to ensuring that the people voice and future generations of this territory 

are protected and governed accordingly. 

Today I further bring calm, peaceful waves from our serene, 

beautiful islands, which demand a certain culture. We have living 

and traditions which have stood the test of time. Great are our ancestors who have kept these traditions going for generations to 

come. As Virgin Islanders, we do not have a choice of letting go of 

these traditions of which we are a part. For who gives us the right 

to stop what has been passed on from generation to generation? 

What we know is that these traditions were passed on to protect 

us, and inherently denotes a way of living to many of us is not 

easy, but necessary and respectful to our environment. This document in front of you has taken the necessary steps to preserve our 

traditions and way of life. 

As chair of the preamble, anthems, symbols, bill of rights, and 

human rights committee, we held committee meetings and hearings on all three islands in the territory, which were open to the 

public, well-publicized in local newspapers and radio, and well-attended. Most importantly, members of this committee, as well as 

testifiers, presenters, and people of the Virgin Islands who attended these meetings, wanted our preamble to present the history 

of the Virgin Islands people, who have been inclusive and accepting 

of the many people who have migrated to the territory, who have 

built and contributed to the benefit of these islands. We feel our 

preamble does just that. 

The intent under the provisions addressing territorial waters and 

marine resources and submerged lands was not to usurp the Federal laws, but to ensure the protection of the marine resources and 

submerged lands. Members of this committee felt that every person 

in the territory has a right to an environment which is protected 

and preserved without pollution and degradation. 

52 

I am hopeful that today success can be achieved for our people 

and for future generations of the United States Virgin Islands. 

Thank you. 

[The prepared statement of Dr. Hassell-Habtes follows:] 

Statement of Lois Hassell-Habtes, Ph.D., Delegate to the Fifth 

Constitutional Convention; Chair, Preamble, Anthems, Symbols, Bill of 

Rights and Human Rights Committee; Committee Member, Education, 

Youth, and Culture; Committee Member, Economic Development and 

Labor; Committee Member, Citizenship, Virgin Islands Rights, Environment. & Cultural Preservation 

Honorable Madeleine Bordallo, Chairperson of the Subcommittee on Insular Affairs, Oceans and Wildlife, Committee Members, officials, ladies and gentlemen: 

I am Lois Hassell-Habtes, an elected delegate to the Fifth Constitutional Convention of the U.S. Virgin Islands. I am grateful, and appreciative to be here today, 

to represent the people of the Virgin Islands. 

Let me officially say thank you to our Virgin Islands Delegate to Congress, The 

Honorable Donna M. Christensen for her work in getting us here today. I am proud 

to be a part of this progressive movement in the Virgin Islands towards shaping our 

future for generations to come. 

First of all, I bring ‘‘greetings’’ from the people in the Virgin Islands who understand the time has come for us to be governed by a Constitution of the Virgin 

Islands, and not by an Organic Act written in 1936 and amended in 1954. I am certain that we are here because of strong leadership in this convention which by court 

order addressed the legislative mandate to forward the Constitution to the President 

of the United States. 

Let me state unequivocally, that many delegates, and people of the Virgin Islands, 

who attended, listened to, or participated in the many committee hearings and plenary sessions, have despite differences of opinion extended their support for this 

process. But, just like the drafting of the U.S. Constitution, arguments, debates, and 

differences of opinions. We remain united in our effort to ensure that future generations have the opportunity for full participation in their government. 

All delegates signed and agreed to respect and follow the rules and regulations 

of this Fifth Constitutional Convention, headed by President Gerard Luz James II. 

This led to a two thirds vote on the Constitution of the Virgin Islands, so that we 

could move forward. 

Today, I further bring calm, peaceful waves from our serene, beautiful islands, 

which demand a certain culture, way of living, with rich traditions, which have 

stood the test of time. Great are the ancestors who preserved these traditions for 

generations. As Virgin Islanders, we do not have a choice of letting go of these cultural traditions of which we are a part. For who gives us the right to stop what 

has been passed on from generation to generation. 

What we know is that these traditions were passed on to protect us as a people. 

These traditions inherently denote a way of living that to many of us, is not easy 

but necessary and respectful to our environment. 

However, as I testify before you today, it is with an understanding of a historical 

disconnect between the people of the Virgin Islands and the existing territorial/federal relationship. As delegates we are acutely aware of the reality that the Virgin 

Islands electorate has voted against certain provisions contained in the previous 

proposed constitutions. The Fifth Constitutional Convention has worked diligently 

to include their recommendations in our proposed constitution. 

I will specifically address the two major committees on which I served, Preamble 

and Education and Culture. 

THE SOVEREIGNTY OF THE UNITED STATES: 

It should be emphasized that the Fifth Constitutional Convention began with the 

mandate that all committee Chairs ensure that their committee members consider 

the language contained in the fourth proposed constitution. 

As Chair of the Preamble, Anthems, Symbols, Bill of Rights, and Human Rights 

Committee I held committee meetings and hearings throughout the territory. These 

meetings were all open to the public, well publicized in the local newspapers and 

on the radio, as well as and well attended. We feel that we succinctly delineated 

the sovereignty and supremacy of federal law. We are well aware that as an unincorporated territory, we have only the authority authorized by federal law and recognized this document is not intended to change the status document. 

53 

The Department of Justice has expressed concerns with certain provisions in our 

proposed Constitution. These provisions, however, can inherently be traced back to 

the impact of increased immigration to the territory as a result of federal which has 

stimulated economic development, but which has also caused a certain disconnect 

among the native Virgin Islanders. We are of the view that certain provisions are 

necessary to address this disconnect, and to ensure a homeland for future Virgin 

Islanders. 

Most importantly, members of this committee, as well as testifiers, presenters, 

and people of the Virgin Islands who attended our meetings wanted the Preamble 

of the proposed constitution to present the history of the Virgin Islands people who 

have been inclusive and welcoming of all groups who have who have chosen to make 

the Virgin Islands their home. We feel that the Preamble does just that. 

EDUCATION AND CULTURE: 

The rapid growth experienced by Virgin Islands society has resulted in significant 

overcrowding of our schools. Therefore the quality education received in small, attentive, loving classrooms of locally trained teachers of which we were accustomed 

has changed to overcrowded schools and a need for more teachers and educators 

who better understand the students, their culture and their island home. 

We are a proud people who have struggled and toiled in their land for progress 

and benefits for their people and now find themselves competing for their very existence and are losing the battle. We must fight to ensure that our people are properly 

educated and the culture which defines this land is protected and preserved for generations to come. 

BILL OF RIGHTS PROVISIONS: 

Having reviewed Assistant Attorney Generals’ review of the bill of rights this provision within the Constitution, it is clear that protections for the people, including 

‘‘the dignity of the human being,’’ and ‘‘the right to a reasonable expectation of privacy’’ could burden or constrain the local government. However, the relevant committee that dealt with this section felt it was important that these rights are extended to the people through their inclusion in the Bill of Rights. 

TERRITORIAL WATERS, MARINE RESOURCES AND SUBMERGED 

LANDS: 

The Committee on Citizenship, Virgin Islands’ Rights, the Environment, and Cultural Preservation’s intent was to make sure that we also included the protection 

of the territorial waters, and its submerged lands not to usurp federal law. Members 

of the committee felt that every person in the territory has a right to an environment which is protected and preserved, without pollution and degradation. Therefore, committee members felt that by promoting conservation efforts, we would be 

able to secure ecological development and conservation of our land, waters and their 

ever diminishing resources. This was not to usurp the federal government’s control. 

In closing, I have shared with you the intent of the Delegates of the Fifth Constitutional Convention in writing the Constitution of the Virgin Islands. We have 

long been and remain ready for enhanced self government. I remain hopeful for fruition of our goals 

Ms. BORDALLO. Thank you very much, Dr. Hassell-Habtes, for 

your testimony. I now recognize Dr. Petersen. 

STATEMENT OF EUGENE A. PETERSEN, DVM, DELEGATE, 

FIFTH CONSTITUTIONAL CONVENTION 

Dr. PETERSEN. Madame Chair, ladies and gentlemen of the Committee on Natural Resources, and the Subcommittee on Insular Affairs, Oceans, and Wildlife, my name is Dr. Eugene Petersen, and 

I would like to thank you for this opportunity, on my own behalf 

as a citizen of the Virgin Islands of the United States. 

While I am a member or a delegate to the Fifth Constitutional 

Convention, I am not here today representing that body. I felt it 

necessary to testify as one of the five delegates who voted in opposition to the adoption of the proposed Virgin Island constitution in 

its present form before you today. 

54 

I was born in St. Croix, the United States Virgin Islands, one of 

the islands that comprise the former Danish West Indies. My ancestral ties to the island of St. Croix can be traced back to the period of emancipation of the slaves in 1848 and possibly beyond 

that. I have resided on St. Croix my entire life except for a brief 

period where I pursued my education here in the United States. 

And upon my return home, I practiced there as a veterinarian for 

over 25 years. 

I was elected as a delegate to the Fifth Virgin Islands Constitutional Convention in 2007, which is in recess at this time awaiting 

the return of the document from the U.S. Congress. It is with great 

pleasure and humility that I accept this opportunity to testify before this great body today concerning the adoption of the constitution for this magnificent territory of the Virgin Islands of the 

United States. 

Faith and conviction has brought me here today, faith that the 

diverse population of the Virgin Islands can live together as one, 

and the conviction that the people of my homeland desire to do the 

right and just thing concerning home rule and self-governance by 

the entire population of these Virgin Islands, of which I am so 

proud. I want to make it abundantly clear that I strongly support 

the adoption of a constitution created by the citizens of the territory and for the citizens of the territory. It pains me to be here 

today asking the U.S. Congress to modify and to make changes to 

a document created by the elected officials representing the people 

of the Virgin Islands. 

However, it is my opinion that there are portions of this proposed 

constitution that if adopted will do irreparable harm to the social 

and economic fabric of the territory. Many of us today are more 

qualified than I am to testify accurately on the historical and constitutional relevance of this document, which I am fully conscious 

of. However, it is the social and the economic impact that is problematic and raises concern for many of the citizens with whom I 

confer. 

As I mentioned before, the Virgin Islands is a diverse community 

which is comprised of many citizens from various parts of the 

world. Many of the current population migrated to the territory 

over a long period of time, establishing roots and contributing to 

the development of the territory. Many were born in the territory 

of parents or grandparents who migrated here. And many are first 

generation citizens who live and worked in the territory for many 

years, creating social and economic base. 

These citizens consider themselves true Virgin Islanders, and no 

other existence besides the life that currently exists for them. We 

embrace these people. And the mass majority of the people of the 

Virgin Islands live in harmony. If many of the provisions proposed 

in this document are adopted, I believe that it will rip this delicate 

social and economic fabric apart and create disharmony in our community unlike anything that you have ever seen before. 

In addition, I believe that with these provisions included, the 

document will find it almost impossible to be ratified by the current citizens of the territory. This possibility is most disturbing to 

me. And I am convinced that this is an important step toward selfdetermination. It is important to note that this is our fifth attempt 

55 

to ratify a document. And as time elapses, it will become increasingly difficult to reach consensus as the population changes. 

It is with great trepidation that I request the Congress of the 

United States to make the necessary changes to the proposed constitution so that some of the constitutional concerns may be alleviated, avoid social and economic distress, and allow the document 

to be more acceptable to the vast majority of the citizens to ensure 

ratification upon its return to the people of the Virgin Islands. 

Some say that if Congress may change as much as one word in 

this proposed document, that it is no longer a document of the people. I beg to differ, as upon ratification by the people of the Virgin 

Islands, it then becomes their document, or our document, to 

change and modify as prescribed therein. 

Therefore, without any further ado, I request that Congress 

make those changes as outlined in my proposal or my testimony, 

which I see that I am out of time. And I want to thank you very 

much. And some of the questions that you asked, I would like to 

address some of those questions that were asked of the other panel 

before. Thank you. 

[The prepared statement of Dr. Petersen follows:] 

Statement of Eugene A. Petersen, DVM, Member/Delegate, Fifth Virgin 

Islands Constitution Convention, Frederiksted, St. Croix, Virgin Islands 

Ladies and Gentlemen of the Committee on Natural Resources, subcommittee on 

Insular Affairs, Oceans and Wildlife. I thank you for this opportunity to testify on 

my own behalf as a citizen of the Virgin Islands of the United States. While I am 

a member/delegate of the Fifth Virgin Islands Constitution Convention, I am not 

here today as representing that body. I felt it necessary to testify as one of the five 

delegates who voted in opposition to the adoption of the Proposed Virgin Island Constitution in it’s present form that is before you today. 

I was born on St. Croix, United States Virgin Island, one of the islands that comprised the former Danish West Indies. My ancestral ties to the island of St. Croix 

can be traced back to the period of the emancipation of the slaves in 1848, and possibly beyond that. I have resided on St. Croix my entire life except for a period of 

time where I attended Tuskegee University in Alabama and worked for a brief period of one year in the great state of Massachusetts after earning my Doctorate degree in Veterinary Medicine. Upon returning to the Virgin Islands I practiced as a 

mixed practice veterinarian for over 25 years. I was elected as a delegate to the 

Fifth Virgin Islands Constitutional Convention in 2008, which is in recess at this 

time awaiting the return of the document from the United States Congress. 

It is with great pleasure and humility that I accept this opportunity to testify before this great body today. There are numerous individuals that are probably better 

suited to be here testifying on this matter concerning the magnificent territory of 

the Virgin Islands of the United States. But faith and convictions has brought me 

here today. Faith that the diverse population of the Virgin Islands can live together 

as one, and the conviction that the people of my homeland desire to do the ‘‘right 

and just thing’’ concerning home rule and self-determination of the entire population 

of these Virgin Islands of which I am so proud. 

I want to make it abundantly clear that I strongly support the adoption of a constitution created by the citizens of the territory, for the people of the territory. It 

pains me to be here today asking the United States Congress to modify or make 

changes to a document created by elected officials representing the people of the 

Virgin Islands. However, it is my opinion that there are portions of this proposed 

constitution that, if adopted, will do irreparable harm to the social and economic 

fabric of the territory. Many others today can testify more accurately on the historical and constitutional relevance of the document of which I am fully conscious. 

However, it is the social and economic impact that are problematic and raises concerns for many of the citizens with whom I confer. 

As I mentioned before, the Virgin Islands are a diverse community which is comprised of many citizens from various parts of the world. Many of the current population migrated to the territory over a long period of time establishing roots and contributing to the development of the territory. Many were born in the territory of parVerDate Nov 24 2008 16:04 Jun 18, 2010 Jkt 000000 PO 00000 Frm 00059 Fmt 6633 Sfmt 6621 L:\DOCS\55534.TXT Hresour1 PsN: KATHY
56 

ents or grandparents who migrated here, and many are first generation citizens who 

lived and worked in the territory for many years creating a solid social and economic base. These citizens consider themselves true Virgin Islanders and know no 

other existence besides the life that currently exist. We embrace each other and the 

vast majority live in harmony. 

If the many of provisions proposed in this document are adopted I believe that 

it will rip this delicate social and economic fabric apart and create disharmony in 

our community unlike anything that we have seen before. 

In addition, I believe that with these provisions included, the document will find 

it almost impossible to be ratified by the citizens of the territory. This possibility 

is most disturbing to me as I am convinced that this is an important step toward 

self-determination. It is important to note that this is our fifth attempt at ratifying 

a document and as time elapses it will become increasingly difficult to reach consensus as the population rapidly changes. 

It is with great trepidation that I request the Congress of the United States to 

make the necessary changes to the proposed constitution so that some of the constitutional concerns may be alleviated, avoid social and economic distress, and allow 

the document to be more acceptable to the vast majority of citizens to insure ratification upon it’s return to the people of the Virgins Islands. Some say that if congress as much as change one word in the proposed document that it no longer is 

‘‘a document of the people’’. I beg to differ as upon ratification it will become the 

people’s document to change and modify as prescribed within. 

Therefore, without any further due I request that the Congress of the United 

States make that following changes to the Proposed Fifth Virgin Islands Constitution as follows: 

1. Delete—Article II, Principles of Government. Section 5—Supreme Law of 

the Virgin Islands. ‘‘This Constitution shall be the supreme law of the 

Virgin Islands’’. 

The removal of this clause will eliminate any ambiguity that may arises concerning the sovereignty of the United States Constitution over the Virgin Islands 

of the United States. 

2. Delete—Article VI, Executive Branch. Section 3, subsection (d). ‘‘be an 

Ancestral Virgin Islander or Native Virgin Islander’’. 

The removal of this clause will not only alleviate constitutional concerns, but 

avoid social distress on the part of citizens who will not qualify as a Native Ancestral Virgin Islanders’’ 

3. Delete—Article XI, Taxation, Finance and Commerce. Section 5, subsection (g). ‘‘No Real Property tax shall be assessed on the primary residence or undeveloped land of an Ancestral Native Virgin Islander’’. 

This provision will destroy the property tax base of the territory and have grave 

negative economic impact. 

4. Delete—Article XVII, Political Status Advisory Commission. section 1, 

subsection (b) ‘‘who are Ancestral Native and/or Native Virgin Islander’’ 

This section makes special provisions for Native and Ancestral Natives which will 

prevent tax paying citizens from participating in the election process and prevent 

them from being appointed to this commission. 

5. Delete—Article XVII, Political Status Advisory Commission. section 2, 

subsection (b). ‘‘The special election on status shall be reserved for vote 

by Ancestral Native and Native Virgin Islanders only, whether residing 

within or outside the territory.’’ 

This provision allows Native and Native Ancestral Virgin Islander regardless of 

there current relationship to the community to vote on the status issue while preventing tax paying citizens from voting. 

6. Delete—Article XVIII, Constitutional Amendments, section 7—Ratification of Amendments. ‘‘Ancestral and Native Virgin Islanders, including 

those who reside outside of the Virgin Islands or in the military, shall 

have the opportunity to vote on Constitutional amendments’’. 

This clause will render voting rights to Native and Ancestral Native Virgin 

Islander who have no recent ties to the territory, and who are not domiciled in the 

territory. 

Once again I would like to thank you for allowing me to testify today and I hope 

that my testimony is useful in your consideration of the proposed Virgin Islands 

Constitution. 

57 

Ms. BORDALLO. Very good. Thank you, Dr. Petersen, for a very 

passionate testimony that you gave before the Subcommittee. I now 

recognize Mr. Brady for five minutes. 

STATEMENT OF DOUGLAS BRADY, DELEGATE, 

FIFTH CONSTITUTIONAL CONVENTION 

Mr. BRADY. Thank you very much, Madame Chairwoman 

Bordallo, Congresswoman Christensen. Good afternoon. Thank you 

very much for this opportunity to testify. I like my good friend Dr. 

Petersen was one of the five dissenting members of the constitutional convention, and also one of the 11 signatories to two letters 

that were sent dated January 29, 2010, to President Obama and 

to Congresswoman Christensen, including proposed modifications 

to the document. I would ask the Chair if those letters and attachments could be added to the record of the Subcommittee, together 

with my written statement. 

Ms. BORDALLO. No objection. So ordered. 

[NOTE: The letters submitted for the record have been retained in the Committee’s official files.] 

Mr. BRADY. Thank you, Madame Chair. I am here speaking as 

an individual. Congress has gone a long ways over the last 93 

years to grant autonomy to the people of the Virgin Islands. As of 

1968, we elect our own Governor. We now have the right to determine the number of our legislators and the apportionment of our 

legislature. As of 1984, the Revised Organic Act amendment gives 

virtually unlimited jurisdiction over local matters to our local 

courts. 

But these have all been imposed upon us by acts of Congress. 

This is our opportunity to create our own structure of local government. And this is such a great opportunity, as the speakers before 

me have mentioned, and as the Subcommittee is well aware. The 

document before you represents the fruits of the labors of the Fifth 

Constitutional Convention, and those were diligent and difficult labors. Congress has 60 days to act. The realities of acting within 60 

days are well understood. A very short time, notwithstanding everything else that you all have on your plate these days. 

But frankly, the failure to act has been discussed well, and the 

document will be deemed approved. But candidly, that would appear to me, as Delegate Christensen mentioned earlier, as inconsistent with the article 4 oversight responsibilities of the Congress. 

And frankly, it would be politically the death knell of this document, which would be dead on arrival in this format back to the 

Virgin Islands. 

It would also signify either that the Congress doesn’t care 

enough about the Virgin Islands to send back a document that is 

unquestionably inconsistent with the provisions of the Equal Protection Clause of the U.S. Constitution applicable to the Virgin 

Islands. 

Saying all that, the congressional is and must be limited only to 

make sure that U.S. sovereignty is recognized and only to make 

sure that the document presented is recognized as consistent with 

the U.S. Constitution, treaties, and laws. The document, as has 

been said by many speakers, is consistent and does recognize U.S. 

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58 

edging our status as an incorporated territory. It is clear that we 

recognize that U.S. sovereignty governs the Virgin Islands throughout the document, several references. And the very thorough analysis of the Department of Justice confirms that, regarding U.S. sovereignty, there is substantial compliance. 

The big, big, big problem with the document is the fact that legal 

advantages are conferred on certain classes of people. Those same 

legal advantages are denied to other classes of people. The history 

of the Virgin Islands and Virgin Islanders is a proud one, and the 

pride in the heritage of ancestors is to be commended. And there 

are means by which this can be accomplished. However, granting 

special privileges to certain classes of people, and within—and as 

the Department of Justice analysis recognizes clearly, differentiating between somebody who moved to the Virgin Islands in 1931 

and somebody who moved to the Virgin Islands in 1933 cannot support any legitimate governmental concern. 

As my red light is now on, I am going to close up here. But I 

would like to ask Congress to do what is clearly a difficult task, 

and that is to strike those specific five provisions of the document 

as it is before you that grant those special rights. 

Just very, very briefly, the other matter concerning territorial 

waters, there is a quick fix. And I think as other testifiers have 

said, it was the intention of the Convention to recognize that provision on territorial waters can only be considered in a manner consistent with U.S. laws. And I would recommend the inclusion of the 

document. It is not a perfect document. I voted against many of the 

provisions. But it is our document. And therefore, I would suggest 

that Congress must act to give us back a document upon which we 

can vote, and must not go farther than that. 

The people of the Virgin Islands deserve to have an appropriate 

document returned to them. And I thank you for your consideration. 

[The prepared statement of Mr. Brady follows:] 

Statement of Douglas A. Brady, Delegate, Fifth Constitutional Convention 

of the United States Virgin Islands 

With appreciation to the Subcommittee for considering these remarks, I write concerning this matter of the utmost importance to the people of the Virgin Islands. 

I ask that the Subcommittee also consider letters of January 29, 2010 from eleven 

delegates of the Fifth Constitutional Convention to President Obama and to Congresswoman Christensen, each enclosing a copy of the proposed constitution marked 

up to reflect recommended modifications to eliminate those provisions, and only 

those provisions, deemed to be infirm as inconsistent with the Federal Constitution. 

Copies of those letters and of the marked up proposed constitution were submitted 

by my letter to Chairwoman Bordallo dated March 8, 2010. 

Background 

Congress enacted the 1976 enabling legislation permitting the people of the Virgin 

Islands to adopt a constitution for local self-government ‘‘recognizing the basic 

democratic principle of government by the consent of the governed.’’ (Act of Oct. 21, 

1976, Pub. L. 94-584, 90 Stat. 2899.) 

Over the past half century, exercising its Article IV, Section 3 power respecting 

the Territories of the United States, Congress has enhanced the political autonomy 

and self-governance of the Virgin Islands, enacting laws to establish the popular 

election of our governor, to permit local law to determine the number and apportionment of legislators and granting virtually unlimited jurisdiction over local matters 

to the courts of the Virgin Islands. 

These important steps in achieving political self-determination for Virgin 

Islanders have been granted by federal legislation. But by Public Law 94-584, ConVerDate Nov 24 2008 16:04 Jun 18, 2010 Jkt 000000 PO 00000 Frm 00062 Fmt 6633 Sfmt 6621 L:\DOCS\55534.TXT Hresour1 PsN: KATHY
59 

gress has authorized the people of the Virgin Islands to organize our own government pursuant to a constitution to be adopted by Virgin Islanders. With this prospect of self-governance as our goal, this process upon which we have embarked is 

among the most significant in the ninety-three year history of the American Virgin 

Islands. It is a process that must succeed in order that we may realize a government 

of the Virgin Islands crafted and adopted by the consent of the governed. 

In 2004, pursuant to Public Law 94-584, the Twenty-Fifth Legislature of the Virgin Islands enacted Act No. 6688 establishing the Fifth Constitutional Convention 

of the Virgin Islands ‘‘as a significant step toward greater self-determination and 

autonomy in the Territory’s relationship with the United States Government.’’ 

The delegates to the Fifth Constitutional Convention elected by Virgin Islands 

voters, despite limited resources, diligently labored to prepare and adopt a proposed 

constitution for submission by the Governor of the Virgin Islands to the President 

and Congress in compliance with Public Law 94-584. Notwithstanding those diligent 

efforts, it is recognized that the proposed constitution before the Subcommittee is 

flawed and, in parts, out of harmony with provisions of the Constitution and laws 

of the United States. 

As recommended by the February 23, 2010 analysis of the U.S. Department of 

Justice Office of Legislative Affairs (‘‘DOJ Analysis’’) submitted with President 

Obama’s February 26, 2010 transmittal to Congress, those constitutionally infirm 

sections of the proposed constitution, and only those sections, should be modified by 

Congress before the proposed constitution is returned for submission to the qualified 

voters of the Virgin Islands. 

Analysis 

The need for limited Congressional action. President Obama and the DOJ 

Analysis note nine features of the proposed constitution that ‘‘warrant comment.’’ 

The last of those features concerns ‘‘the effect of congressional action or inaction on 

the proposed constitution.’’ In the event that Congress fails to approve, modify or 

amend the proposed constitution by joint resolution within sixty days of President 

Obama’s transmittal, it shall ‘‘be deemed to have been approved.’’ 

With deference to Congress, the failure to take timely action would be inconsistent with its Article IV oversight powers and responsibilities. By the 1976 enabling legislation, Congress granted the Territory the power to call a constitutional 

convention to draft a constitution which shall ‘‘recognize, and be consistent with’’ 

the supremacy of the Constitution, treaties and laws of the United States. To the 

extent that the proposed constitution is not so consistent, Congress would be remiss 

to permit the document to ‘‘be deemed to have been approved.’’ 

On the other hand, the enabling legislation, recognizing ‘‘the basic democratic 

principle’’ of self-governance, authorizes the people of the Virgin Islands to organize 

their own government through a constitutional convention comprised of members 

chosen pursuant to Virgin Islands law. In accordance with Public Law 94-584, the 

Virgin Islands Legislature established the Fifth Constitutional Convention, with delegates elected by the voters of the Territory. These representatives of the people of 

the Virgin Islands have drafted the document before the Subcommittee that is to 

be returned to the people of the Virgin Islands for acceptance or rejection. 

This exercise in government by the consent of the governed, while subject to Congressional oversight must remain an exercise of, by and for the people of the Virgin 

Islands. The role of this Congressional review process must not be to substitute the 

judgment of federal legislators for that of the people of the Virgin Islands. To the 

extent that the proposed constitution recognizes and is consistent with the sovereignty and supremacy of the United States, its Constitution, treaties and laws, it 

must be approved by Congress and returned to the people of the Virgin Islands. 

DOJ Analysis bottom line. Notwithstanding its recitation and review of nine 

areas of concern that warrant comment, the DOJ Analysis recommends definitively 

that only two features cause sufficient concern to warrant removal or amendment. 

Those features: (1) provisions conferring legal advantages on certain groups based 

on national origin and ancestry; and (2) provisions addressing territorial waters and 

marine resources, are addressed in order. 

(1) Legal advantages conferred on certain groups. The following provisions 

confer different legal treatment of Ancestral Native Virgin Islanders and Native Virgin Islanders, defined in the proposed constitution in Article III, Sections 1 and 2, 

from other persons within the Virgin Islands: 

• Article VI, Section 3(d): Governor and Lt. Governor must be ‘‘an Ancestral or 

Native Virgin Islander;’’ 

• Article XI, Section 5(g): Primary residences and undeveloped land of Ancestral 

Native Virgin Islanders are exempt from assessment of real property tax; 

60 

• Article XVII, Section 1(b): Political Status Advisory Commission is to be created 

with members ‘‘who are Ancestral Native and/or Native Virgin Islanders;’’ • Article XVII, Section 2(b): Special election on status and federal relations ‘‘shall 

be reserved for vote by Ancestral Native and Native Virgin Islanders only, 

whether residing within or outside the territory;’’ • Article XVIII, Section 7: ‘‘Ancestral and Native Virgin Islanders, including those 

who reside outside of the Virgin Islands’’ have the non-exclusive right to vote 

in elections to ratify proposed constitutional amendments. 

The thorough treatment of these provisions within the DOJ Analysis (§ II.C., 

pages 6-10) notes the absence of any expressed or discernable legitimate governmental purpose for treating particular groups of citizens of the United States and 

the Virgin Islands differently from other groups of citizens concerning any of these 

subject areas. As such, the provisions are in violation of the equal protection clause 

of the Fourteenth Amendment of the U.S. Constitution, applicable to the Virgin 

Islands pursuant to the Section 3 of the Revised Organic Act of 1954 (48 U.S.C. 

§ 1561). 

I ask that Congress modify the proposed constitution by eliminating Article VI, 

Section 3(d) and Article XI, Section 5(g) in their entirety; by eliminating the phrase 

‘‘who are Ancestral Native and/or Native Virgin Islanders’’ from the first sentence 

of Article XVII, Section 1(b); by eliminating Article XVII, Section 2(b) in its entirety; 

and by eliminating in its entirety the second sentence of Article XVIII, Section 7. 

I do not ask Congress to eliminate the definitions of Ancestral Native Virgin 

Islander and Native Virgin Islander. Persons who trace their Virgin Islands ancestries back multiple generations are justifiably proud of their heritage. The proposed 

language defining these persons simply recognizes that heritage. 

I do believe the inclusion of the definitions language to be politically imprudent, 

and that Virgin Islands ancestry could more appropriately be recognized by local 

legislation or other means rather than by constitutional definition. I fear that individuals and other groups will see the inclusion of such language not as recognition 

of heritage but as the designation of privileged classes, with the looming prospect 

that different categories of persons will enjoy or suffer different advantages or disadvantages. 

As such, I am concerned that the inclusion of definitions, even without special 

privileges, threatens the success of the constitution in the referendum before the 

electorate. Nonetheless, in keeping with the view that the limited role of Congressional review extends only to insuring compliance with the Federal Constitution, 

treaties and laws, I ask that the language defining Ancestral Native Virgin 

Islanders and Native Virgin Islanders be approved. 

(2) Territorial waters and marine resources. Article XII, Section 2 of the proposed constitution asserts sovereignty of the Virgin Islands over its ‘‘inter-island 

waters to...extend 12 nautical miles from each island coast up to the international 

boundaries.’’ The DOJ Analysis notes that while the meaning and effect of this provision are not clear, concerns exist that claims of Virgin Islands sovereignty are inconsistent with federal law to the extent intended to derogate from the sovereignty 

of the United States. 

This legitimate concern set out in the DOJ Analysis can be readily resolved in 

a manner that, although it doesn’t clarify the intent, meaning and effect of the provision, does allay fears of any attempted usurpation of federal sovereignty. 

I recommend that at the end of the last sentence of Article XII, Section 2, a 

phrase be added, such that the last sentence reads: ‘‘This is an alienable right of 

the people of the Virgin Islands of the U.S. and shall be safeguarded, in a manner 

consistent with the laws of the United States.’’ (Added phrase in italics.) 

Other DOJ concerns. Apart from those two features of the proposed constitution 

noted above, the DOJ Analysis does not recommend that any other provision of the 

document must be eliminated or modified to assure compliance with the Constitution, treaties and laws of the United States. Several other features of the proposed 

constitution which warranted comment in the DOJ Analysis are addressed here. 

(1) Recognition of U.S. sovereignty and the supremacy of U.S. laws. The 

Department of Justice indicates that it would be preferable that Congress modify 

the proposed constitution in order that its language explicitly recognizes the sovereignty of the United States and the supremacy of its Constitution and laws. Yet, 

its bottom line is that the language of the proposed constitution substantially complies with the requirements of Public Law 94-584 by its implicit recognition of federal sovereignty and the supremacy of federal law (§ II.A., pages 3-6). 

As the DOJ Analysis notes, the very first paragraph of the proposed constitution 

in its preamble states that the people of the Virgin Islands are establishing a constitution assuming the responsibilities of self-government in the context of our status ‘‘as an unincorporated territory of the United States.’’ 

61 

The DOJ Analysis notes that federal case law has clearly defined the relationship 

between the United States and its unincorporated territories in a manner that recognizes federal sovereignty and the plenary authority of Congress over territorial affairs. Accordingly, by its reference to the Virgin Islands’ status as an unincorporated 

territory, the proposed constitution has unmistakably, although implicitly, recognized U.S. sovereignty and the supremacy of federal law. 

The DOJ Analysis further notes that other provisions of the proposed constitution 

also recognize the authority of Congress over the Virgin Islands. The third paragraph of the preamble recognizes that the 1917 treaty between the United States 

and Denmark confirmed that the civil rights and political status of the inhabitants 

of the Virgin Islands were to be determined by Congress. Additionally, Article IV, 

Section 4; Article V, Section 1; Article VII, Section 2; and Article VII, Section 3 all 

recognize the applicability of and the requirement of consistency with the Federal 

Constitution and laws in the context of holding public office, limitations on legislative power, and the supremacy of federal law with reference to judicial decisions and 

rulemaking. 

It is in this context that the language of Article II, Section 5 of the proposed constitution recognizing that ‘‘This Constitution shall be the supreme law of the Virgin 

Islands’’ must be read. As the DOJ Analysis concludes, the recognition of federal 

sovereignty and the supremacy of federal laws in the various provisions of the proposed constitution confirm its substantial compliance with the enabling legislation. 

No changes to the proposed constitution are required in this regard. 

(2) Residency requirements for office holders. The proposed constitution requires that persons seeking the offices of Governor and Lieutenant Governor must 

have been domiciliaries of the Virgin Islands for fifteen years, at least ten of which 

must immediately precede the date of filing for office. 

The DOJ Analysis well describes the potential equal protection concerns inherent 

in such a lengthy residency requirement for office holders. Indeed, in light of the 

cited case law, a shorter period of required residency may be preferable. Yet, the 

cited decisions clearly confirm that the U.S. Supreme Court has held that some 

durational residency requirement is constitutionally permissible. Also, the Department of Justice notes that ‘‘the territorial status and unique history and geography 

of the USVI make familiarity with local issues particularly important for office-holders there, [such that] the governmental interests supporting durational residence requirements for USVI offices may be particularly strong.’’ (§ II.D., page 13.) 

In this setting, the representatives of the people of the Virgin Islands have determined proper requirements for persons seeking to hold office. Whether that determination violates the equal protection rights of office seekers who have resided in 

the Virgin Islands for shorter periods is a judgment to be made by the courts of the 

Virgin Islands and the United States, if and when such a challenge is presented. 

Alternatively, the people of the Virgin Islands themselves can shorten the period by 

amendment to the approved constitution. 

The role of Congress as to this provision should not be to presently substitute its 

view for that of the representatives of the Virgin Islands people in the context where 

no clear equal protection violation is evident. No modification to the proposed constitution should be imposed as to this provision. 

(3) Violation of ‘‘one person, one vote’’ in legislative districting. In analyzing the propriety of the proposed constitution’s requirement that the island of St. 

John have its own legislator, competing interests must be weighed. Strict adherence 

to the ‘‘one person, one vote’’ principle would effectively deprive residents of St. John 

from any direct and meaningful legislative representation. On the other hand, assuring such legislative representation will modestly dilute the effectiveness of the 

representation of residents of the other islands. The delegates to the Constitutional 

Convention have resolved this dilemma in favor of assuring representation for the 

people of St. John. 

The cited case law within the DOJ Analysis establishes that equal protection concerns in such settings can only be resolved upon a review of the specific existing 

factual circumstances. As is true of the preceding provision addressed, the role of 

Congress in this context must not be to substitute its judgment for that of the representatives of the people of the Virgin Islands. 

The Department of Justice does not recommend specific changes to this provision 

of the proposed constitution, notwithstanding noting the potential litigation risk inherent in such legislative apportionment. The potential for litigation exists in numerous provisions of the proposed constitution, and litigation concerning those provisions will keep the Virgin Islands Supreme Court busy for years to come. Yet, 

such litigation is part of the process of establishing autonomy and self-governance 

for the people of the Virgin Islands. 

62 

As recommended by the Department of Justice, the provisions relating to legislative apportionment should not be the subject of Congressional modification. 

Conclusion 

Consistent with its Constitutional oversight responsibilities, Congress must act to 

insure that the proposed constitution of the Virgin Islands recognizes and is consistent with the sovereignty and supremacy of the Constitution and laws of the 

United States. This can be accomplished by the elimination of several specific provisions that violate the equal protection clause of the Fourteenth Amendment applicable to the Virgin Islands. 

Specifically, the proposed constitution should be modified by the striking the language referenced above from those sections that confer legal advantages on certain 

groups of persons based upon the place and timing of birth and ancestry: Article 

VI, Section 3(d); Article XI, Section 5(g); Article XVII, Section 1(b); Article XVII, Section 2; and Article XVIII, Section 7. 

Further, to insure compliance with federal laws, a qualifying phrase should be 

added to proposed Article XII, Section 2, the last sentence of which should be modified to read: ‘‘This is an alienable right of the people of the Virgin Islands of the 

U.S. and shall be safeguarded, in a manner consistent with the laws of the United 

States.’’ (Added phrase in italics.) 

With those modifications, the proposed constitution should be approved and in accordance with Public Law 94-584 submitted to the voters of the Virgin Islands for 

acceptance or rejection. 

Ms. BORDALLO. Thank you very much, Mr. Brady. I understand 

you are an attorney practicing in the Virgin Islands. And I want 

to thank all of the members of the second panel for being very cognizant of the time. And now we will be open for questions, and I 

am sure that you will have answers for most of our questions. 

The first one is for you, Mr. Bryan. What is your reaction to the 

request for Congress to amend the proposed constitution to remove 

those provisions recommended by the Department of Justice to prevent it from being rejected by the voters. 

Mr. BRYAN. You said Mr. Bryan, right? 

Ms. BORDALLO. Yes. 

Mr. BRYAN. That is me over here. 

Ms. BORDALLO. Oh, that is right. I am sorry. 

Mr. BRYAN. Good. I don’t believe that the U.S. Congress or any 

one of us sitting in this room, whether Governor, delegate to Congress, or delegate to the convention are the final arbiter for the 

constitution for the people of the Virgin Islands. No court should 

settle this definition. If you read the sales treaty between the 

United States and Denmark, it said any misunderstanding or misinterpretation of the document should be finalized in the Hague 

and the Congress and the President of the United States, and no 

person in this room is that person for final arbiter. The only definition that you can find that settles a constitutional question is the 

Supreme Court. But our authority pursuant to the Danish and 

United States sales treaty takes us far beyond any courts in the 

Virgin Islands or the United States. We can go to the United Nations pursuant to resolution 1514, 1541, and 15135. 

I am saying that this is not the final arbiter. I don’t think Congress—because I am sure that all of us sitting in this room, and 

even the President of the United States, know full well that it was 

no Indian who was a Native American present when the United 

States drafted the Constitution. I cannot submit myself to an individual who has no history or no knowledge of my ancestral past to 

tell me or my people who should be eligible to run the country that 

I am from. 

63 

We are not in a position—as a veteran of the Vietnam era, I am 

in the Virgin Islands. I can’t even vote for the President that can 

send me or my children to war again. We go home to the Virgin 

Islands and don’t get the benefits. I go to the Supreme Court, and 

they tell us you are not a part, you are an appurtenance, and, oh, 

the Constitution does not apply to me. So arbitrarily, I heard a 

gentleman—that he was sitting right here. He said the legal connotations for native or national will not be recognized. Well, then 

why is it the U.S. Congress and the United States of America recognize African-American, Native American, Chinese-American—all 

these Americans and women. Who do you think that woman mean? 

The Caucasian woman because she is already in the majority in 

the United States. So when we look at the whole confusion here, 

it is clear to me that the whole attitude is about the population of 

people, not so much about the Congress. Congress should not have 

the final say in this document. That is my position. 

Ms. BORDALLO. Mr. Bryan, I sympathize with you. Guam is in 

the same situation. And we are coming on like 30 years now, still 

trying to decide on our constitution. 

Mr. BRYAN. We have 93 years. 

Ms. BORDALLO. Would you agree inasmuch as it has taken all of 

these years and all of these different proposals have been put 

forth—I think this is our fifth. Is that correct? Do you agree that 

if this proposed constitution fails, it will become almost impossible 

for the territory to adopt one in the future? 

Mr. BRYAN. I don’t think so, and I can explain to you why. From 

the beginning, on the onset, if the U.S. Congress had followed the 

resolutions of 1514, 1541, and the others of 15, they should have 

specified that only the people of the Virgin Islands or native of the 

Virgin Islands shall be eligible to vote, shall be eligible to be delegates, and shall be eligible to decide what it is because it is clear 

that we are allowing the situation that happened to Hawaii and 

Alaska and Guam to overpopulate our people to set the position 

that everybody who has a constitution written from where they 

came from. Everybody in the United States, whether they are from 

Kentucky, Wyoming, New Jersey, had a constitution written by 

them for them, and not by none of us a Virgin Island native. 

So I am saying if you don’t put that provision, only native Virgin 

Islanders or ancestral Virgin Islanders shall be able to be eligible 

and vote on the document—I can give you a better example just 

some weeks ago. We are at war as U.S. citizens and Americans in 

Afghanistan and Iraq. We have Iraqis living in the United States. 

They are voting on the election where they don’t live. And they are 

voting to make decisions here. We here are sending our soldiers 

from the Virgin Islands, Puerto Rico, Guam, and any other state 

to fight against these people. 

There is no provision that you say that a Sunni can’t vote or a 

Shiite can’t vote. You say Iraqis. So the parties only have lived 

there for the rest of—and they are making decisions. Oh, wait. Are 

you saying that native Virgin Islanders as represented by Minority 

Leader Richards should have the same provisions to make them 

there. 

Ms. BORDALLO. All right. Dr. Petersen, I have a couple of questions for you. Thank you, Mr. Bryan. First, are you comforted by 

64 

the fact that if the proposed constitution is adopted by the voters 

without any change, the courts would likely strike down the controversial provisions that you are asking us to change? 

Dr. PETERSEN. I cannot speak for the court, but I know it probably will end up in court. Many of the citizens that I speak to are 

poised as we speak to challenge many of the provisions in the document. I would also like to point out that there is an ironic situation 

here where we have a present gubernatorial candidate that was not 

born in the Virgin Islands. And should he win the election in November, and this constitution is ratified in November election, he 

automatically becomes ineligible to serve. And so there is quite a 

bit of irony here, and I do believe that these provisions need to be 

addressed. 

Ms. BORDALLO. My second question also to you, Dr. Petersen, you 

say that you believe that if the controversial provisions of the draft 

constitution are adopted, it would make it also impossible for the 

document to be ratified. On the other hand, you heard Governor 

deJongh urge us not to even edit the document because to do so 

would run contrary and counter to true local self-governance. What 

is your opinion of the position that the Governor is taking? 

Dr. PETERSEN. Well, as I said near the end of my statement that 

I beg to differ because—— 

Ms. BORDALLO. Yes, you did. 

Dr. PETERSEN.—once the constitution—once the document is returned to the people for the vote, they would have adopted the constitution as their own. And so whatever provisions were changed 

by Congress, which as Delegate Christensen pointed out, that the 

Congress does have a duty and a responsibility to uphold the 

United States Constitution and make whatever changes are necessary so that the document complies with the United States Constitution. So I believe that if it is returned to the people, modified, 

and it possibly would be voted in—and the changes that we are requesting are—there are many other things that we see that are improper or impractical with the document, but we believe those 

things can be changed once the constitution is ratified. 

There are provisions within the document that provides for review within five years, and also there are areas for amendment to 

the constitution. 

Ms. BORDALLO. I have always been of the philosophy, because I 

have sat on our constitution commission in Guam for a number of 

years, and I have always said, let’s get the foot in the door. 

Dr. PETERSEN. Yeah. 

Ms. BORDALLO. And then once it is in, and we have a constitution, we can always repeal or add on to it. And like you said, in 

yours, every five years it would go before the people again for— 

isn’t that what yours says, every five years for reauthorization? 

Dr. PETERSEN. I think the first review is within five years, and 

then thereafter after ten years. I would also like to point out here 

that within the document itself—and I think if the document is 

adopted, that changes and amendments process does not include 

the Congress of the United States any longer. So once Congress approved—— 

Ms. BORDALLO. So it would be just before the people. 

65 

Dr. PETERSEN. Yeah. It goes to the people, and it is amended as 

provided therein. 

Ms. BORDALLO. Very good. Thank you very much. And now I 

would like to turn it over to the representative from the Virgin 

Islands, Dr. Christensen. 

Mrs. CHRISTENSEN. Thank you, Madame Chair. And before I ask 

my questions, I wanted to recognize the presence of Senator 

Shawn-Michael Malone, a member of the 28th Legislature. And if 

my memory serves me correctly, he took the measure first introduced by Senator David Jones in a prior legislature and introduced 

it in the last legislature that created the constitutional convention. 

So I wanted to recognize his presence. 

I have some specific questions about the document itself. And 

anyone can answer, probably not all. But maybe two people can answer this question. Why after the first four documents had a provision for something akin to a chief financial officer was such an office not included in this document? After many people continued to 

talk about the need for a chief financial officer, and it has been 

clear since I introduced it twice in the Turnbull Administration and 

once in the deJongh Administration, got it out of the House, and 

have been consistently blocked in the Senate because of the nonconcurrence of Governors which will probably continue into the future, why was it not included in this? Was it discussed and rejected, or was it not discussed at all? 

Dr. HASSELL-HABTES. Delegate Christensen, this area was not 

discussed in the Fifth Constitutional Convention, not for CFO. 

What the convention recognized, what we thought was the concern 

for fiscal accountability, was the need for an auditor general. And 

the constitution provides for an inspector general who would have 

that responsibility. So we did not discuss the establishment of a 

CFO in this constitution. 

Mrs. CHRISTENSEN. No. And I don’t think that the prior ones had 

specifically necessarily a chief financial officer. The fourth had an 

auditor general. But it was my understanding that the duties were 

fairly similar and that they were concurrently monitoring the 

spending and the finances of government, not going back as an inspector general was. Now the current one would be an inspector 

general that goes back and reviews documents past. 

Dr. HASSELL-HABTES. That is what we presently placed in this 

constitution, yes. 

Mrs. CHRISTENSEN. OK, thank you. 

Mr. BRYAN. If I might add, please. 

Mrs. CHRISTENSEN. Yes. 

Mr. BRYAN. I think your question is appropriate because if the 

delegates to the U.S. Congress right now could not have convinced 

the members of the committee or the Congress to put it in the Federal laws through the Department of the Interior to administer 

these things—and with the Governor who was sitting earlier, I 

think he was supportive before. After he got elected, I think he 

supported it. Just as he came here to testify against the constitution convention document for native Virgin Islanders, do you feel 

he wanted to protect him? He should have asked that that be included. He had opportunity long ago, and there is still the opportunity right here in the Congress to put it in place. 

66 

Mrs. CHRISTENSEN. Yes. We did pass it through the House on 

three occasions, but we could not get it through the Senate because 

it really requires—or it was required of us that the Governor in 

both instances, both in the Turnbull Administration and this Administration, concur, and they didn’t get that concurrence, and so 

the Senate would not pass it. So it has been going up against a 

wall three times. 

There has also long been a movement or a lot of discussion about 

municipal government, which many I think anticipated that the 

next constitution would provide for. And I realize you have some 

different governing structures on the island, but not true municipal 

government. Was that discussed and debated and rejected, or was 

it not a discussion at this convention? 

Mr. EMANUEL. Thank you very much, Delegate de Lugo [sic.]. 

Mrs. CHRISTENSEN. De Lugo? 

[Laughter.] 

Mr. EMANUEL. I think I have been reading too much history. Delegate Christensen. 

Mrs. CHRISTENSEN. Well, you know, the past Congress, people 

were on the Hill just yesterday and had an even last evening, so 

OK. 

Mr. EMANUEL. No. The Fifth Constitutional Convention did debate municipal government to a large extent, and there are provisions within the document that address that specifically. 

Mrs. CHRISTENSEN. I see that there is some structure on each island, but not what I would really consider municipal government. 

But there is some attempt to have each island have a structure. 

Mr. EMANUEL. What we did is we didn’t want to legislate within 

the constitution. We felt that the constitution is supposed to provide broad parameters. We have a legislature. You can create commissions and so forth. So we put the principle in there in some detail, but we felt it was best to have each island determine for itself 

what form of municipal government it would like, and the legislature would eventually have to approve that. 

Mrs. CHRISTENSEN. I see. Which leads me into my next question. 

Did you want to respond as well? 

Mr. BRYAN. Yes. I wanted to put on record because we keep hearing individuals in different terms use the word municipal government, sub-district, and municipalities. And when I read what they 

wrote and brought to the convention for discussion and debate, 

those were sentiments clearly of apartheid. That is what they want 

to do. Look at the population and see what they wanted to have. 

Municipal government, sub-district, and the authority to change 

the laws when it comes to taxation—so basically, we almost end up 

another South Africa. 

Mrs. CHRISTENSEN. Thank you for that response. But the issue 

of providing broad parameters bring me to my next question. And 

I would direct this to Dr. Hassell-Habtes. In the report by the Congressional Research Service, it is discussed that while it is not inconsistent with Federal law in any manner, mandating a 20-student class limit may prove to be inflexible to changing economic 

and demographic patterns over time. And while I understand the 

need to counter classroom overcrowding and really support small 

classrooms and reduction of the demand on our already-overVerDate Nov 24 2008 16:04 Jun 18, 2010 Jkt 000000 PO 00000 Frm 00070 Fmt 6633 Sfmt 6602 L:\DOCS\55534.TXT Hresour1 PsN: KATHY
67 

extended educators, don’t you think that this provision requiring a 

20-student cap could possibly become restrictive over time, and 

aren’t these provisions overly prescriptive for a constitution? 

Dr. HASSELL-HABTES. Thank you, Delegate Christensen. The concern—I mean, the education and culture committee had many, 

many meetings, many testifiers, including the University of the 

Virgin Islands, the president, Dr. Ragster, the Board of Education 

chair. We see the need for smaller classrooms. The research bears 

us out on this. There are no ifs, ands, or buts. The problem in the 

Virgin Islands is we continue to overcrowd our classrooms, and 

then we want to have the teachers and the administrators of our 

schools at the same adequate yearly progress standards. They have 

to do exactly the same thing as other classes through the nations, 

throughout the nation, and that is a problem right there. 

Right now, we are suffering in our territory. The crime—you may 

say it is crime, but I beg to differ. It starts with education. It starts 

with education in our classrooms, giving our students what is necessary and ensuring that they have a foundation within which they 

can get jobs and not be out on the streets killing each other. I understand yesterday there was another murder in St. Croix. This is 

what is happening, and it is a certain generation of males that are 

dying as a result of it. They are between certain ages. 

We are actually suffering right now in the territory from January 

to now. The numbers have been increasingly one almost every day. 

And as a result, it behooves us to change to make sure that our 

future generations are well educated, have the foundation skills 

with which they can survive. 

Mrs. CHRISTENSEN. I definitely agree with the intent of the provision, and I share deeply your concern. Two people were killed in 

St. Thomas the day before, and one in St. Croix yesterday as you 

said, and it continues. And education is a key part of resolving that 

issue. It is just I had a question about whether it was something 

that should have properly been in a constitution. But it is there, 

and if we were to consider changing anything in it, with taking 

what has been said to us here under advisement, that would not 

be one of the things we would ever consider changing. 

Dr. HASSELL-HABTES. Thank you. 

Mr. BRYAN. Could I comment on education? 

Mrs. CHRISTENSEN. You have a comment on education? 

Mr. BRYAN. Yes, ma’am. Thank you. I think Chairperson 

Bordallo would probably tell us that in the curriculum of education 

in Guam, the Guamanian children from the early age understand 

who they are, what they have contributed to the society, and the 

sense of pride in their native land. In the Virgin Islands, though, 

there is a law that is over 20 years old that require the Governors, 

the present one who was here and the others before him, and the 

Department of Education to teach the children of the Virgin 

Islands and the Caribbean the history of their ancestors and the 

greatness of their contribution so that they can understand who 

they are. 

These activities are taking place because of the miseducation of 

the population of the children of the Virgin Islands that is continuing because it is only a particular grade or class of people that 

are being killed in a firearms situation. The minute a Caucasian 

68 

is killed, all the law enforcement, all the marshals, all the DEA 

and the ATF, they are around searching and stopping cars. As soon 

as a young black individual or Hispanic is killed, they drive as if 

nothing is unusual. You can have individuals showing more concern about the turtle, a snake, a lizard, and a dog and a cat, than 

they are concerned about the people of the Virgin Islands when it 

comes to education. So it is a Eurocentric educational curriculum 

that needs to be enforced so the children of the Virgin Islands that 

are involved in these things, like the children of Guam and other 

islands, can understand their greatness as opposing to not understanding who they really are supposed to be contributing to. 

Ms. BORDALLO. I agree with your comments. 

Mrs. CHRISTENSEN. Yes. And, I was taught at least the history 

of the Virgin Islands, maybe not the Caribbean, when I was even 

in Catholic school. And I think it is very important. You know, if 

you don’t know where you came from, you will never figure out 

where you are going. 

Dr. HASSELL-HABTES. Madame Chair, could I comment just one 

more thing on that? Because the problem that we have with education and teaching the history and culture of the Virgin Islands 

is that many of our teachers are coming to us from other jurisdictions, other places, and do not know the culture and history. I 

know my fellow delegate, Gerard Emanuel, and myself just on Saturday afternoon provided training through the board of education 

on cultural education and the mandate to infuse culture within the 

curriculum to the teachers because the teachers also do not have 

the time to research this history and to get it into the classrooms. 

So what we do as trainers of these teachers in culture and history is provide them with the necessary materials. But that is why 

education is so important. 

Mrs. CHRISTENSEN. It is. 

Ms. BORDALLO. Yes. If I could inject just a minute. Yes, in Guam 

our education system—you know, right after the war, we got kind 

of—well, it was, speak English, speak English. Of course, we have 

a language in Guam. So now it is mandatory that we teach the 

Chamorro history and our language. So that is one good thing, and 

we do have teachers that are trained in the culture. And they are 

placed in all of the schools. So that is a good thing, although I 

think that there should be a bit more of it, but certainly we are 

starting on it. And now we are trying to revive it because our 

youth, you know, we speak English in Guam. And our parents, 

there is a generation now—we are about three or four generations 

from the days right after the war. And children now, they can 

speak a little of the language, but certainly not fluently. 

Mrs. CHRISTENSEN. Thank you. At least yours is being enforced. 

So that is really helpful. Madame Chair, if I could just ask two 

brief questions. By again, any one of the delegates, or maybe all 

might be able to answer because I think the answers could be very 

brief. 

How would the delegates feel about reconvening the Fifth Constitutional Convention to address the three highlighted areas in 

Mr. Cedarbaum’s testimony? 

Mr. BRYAN. You said reconvene? 

Mrs. CHRISTENSEN. And I welcome—how would you feel? 

69 

Mr. BRYAN. You said reconvene? 

Mrs. CHRISTENSEN. To reconvene. The same question I had asked 

to the previous panel pretty much. How would you feel about reconvening to address the three areas or reconsider the three areas 

of concern that were highlighted by the assistant attorney general’s 

testimony? 

Mr. BRYAN. I don’t agree that we need to reconvene to address 

what the Justice Department said. As I said previously, the final 

arbiters of this decision is not only a constitutional issue that goes 

to other higher, whether the U.N. or the Hague. But I say if you 

are going to reconvene it, you must have other stipulations that 

only people of the Virgin Islands be delegates, and substitutes 

those that are the Virgin Islands with people of the Virgin Islands 

and only require that the people of the Virgin Islands because the 

difference between people of the United States and people in the 

United States. The Iraqis are in the United States, but they are of 

Iraq. So we want to make sure that we have the same privilege 

and rights to represent our future of the Virgin Islands. 

Mrs. CHRISTENSEN. Any other comment about reconvening? 

Mr. BRADY. I will respond, Delegate Christensen. I wouldn’t be 

optimistic that it would be successful. But I do think, as perhaps 

even as can be seen from the fact that 11 delegates signed a letter 

to yourself and President Obama—— 

Mrs. CHRISTENSEN. And could you explain how five voted against 

and eleven signed the letter? 

Mr. BRADY. Well, there are only 25 who voted in favor, 25 who 

voted total. The count was 20 to 5, 20 in favor, 5 against. Some of 

the persons who—I can’t speak for others, of course, but some of 

the people who signed that letter of the 11 did vote in favor. Some 

had—one had abstained, and several had been absent. But I think 

that there has been a—the vote was taken in a very rushed fashion 

as the clock was ticking. We were at the 11th hour, and we had 

to say yea or nay. 

Mrs. CHRISTENSEN. Don’t you know moving the clock back? 

Mr. BRADY. That is a good idea. We didn’t think we had that authority. We didn’t have the control-the-clock hands. But in any 

event, I think people have rethought. I have concern that if we are 

going to be able to get a two-thirds majority, perhaps a two-thirds 

majority would not vote in favor of these particular provisions 

today. So in that sense, I don’t know how—— 

Mrs. CHRISTENSEN. It may never happen, but I was just wondering if there were any thoughts about whether it would make 

any sense to reconvene to consider those. 

Dr. HASSELL-HABTES. Delegate Christensen, I just wanted to say 

I got a copy of the letter to President Obama, and he is saying 11 

signatories on there, but I am seeing only seven. I am seeing only 

seven signatories on that document. So although they may have 

added other people’s names there, the signatories are not on that 

letter. 

Dr. PETERSEN. The response to that is—— 

Dr. HASSELL-HABTES. I am concerned, if we are going back to reconvene the convention, only because the delegates were united 

when we voted accordingly for this constitution. And to reconvene 

is going to take us back to the beginning of the convention, 2006, 

70 

to start all over again to pull them together because the biggest 

problem in the beginning was getting everybody together. And we 

also were not accorded, as testimony from our president of the convention stated, we were not accorded the financial, you know, remuneration to do so. So it really would take us back. 

Mrs. CHRISTENSEN. Let me just ask the last question, and then 

you could—— 

Mr. BRYAN. Before you go to the last question—— 

Mrs. CHRISTENSEN. I am going to ask it, and you can answer 

both—— 

Mr. BRYAN. No. I want to explain the situation with the signatures because the signature document that originally was sent did 

not have all ten signatures in there. One of the delegates that 

didn’t sign was Governor Charles Turnbull. He was the only delegate of the 11 that didn’t. They sent seven signatures first, and 

then thereafter they submitted another page with 10 signatures, 

with individuals who were not even present, and even some who 

hardly attended the convention meetings. So it is to me when we 

do that, you are trying to say that if the Supreme Court renders 

a decision, before the courts follow or enforces a Supreme Court decision, it cannot change the Supreme Court decision until there is 

a Supreme Court majority again. What we are trying to make or 

suggest is that you allow the minority dissenters have an opportunity again to change what the 20 delegates did in the majority. 

Mrs. CHRISTENSEN. I guess what I was trying to suggest is we 

could probably avoid a long, drawn-out court battle if the convention reconvened just simply, and those three areas, and at least reconsider them. Let me ask the last question. 

Dr. HASSELL-HABTES. That is a possibility, Delegate Christensen. 

There is a possibility with that. I must say, you know, many of the 

delegates had discussed some component of that, knowing there 

would be major problems within some issues. So there is a possibility, yes. 

Mrs. CHRISTENSEN. Let me ask the question. And I know that 

Mr. Emanuel and others might want to answer that first one. But 

I am just going to ask the last question, and you could answer both 

if you want to. I can kind of try to wrap it. 

This is our fifth try. I am one of those Virgin Islanders that want 

us to have a constitution. I want a constitution that will be able 

to garner the number of votes from the voters to have it pass. So 

do you feel that this document sent back as it has been sent to us, 

sent back without any changes, will pass? Because many people do 

not feel that way. And are you willing to take the risk of letting 

all of your hard work over these months, over a year, come to 

naught? That is my last question. 

Mr. EMANUEL. Delegate Christensen, this time I got your name 

correct. That is a very important question. The crux of the matter 

is who are the people of the Virgin Islands. Who is the self in the 

self-determination? Because the Enabling legislation that was 

passed by the legislature said that this is a major step in a process 

of self determination. 

The problem I have and the problem that existed with the two 

previous conventions, the third and the fourth, is that the same requirements for voting in a regular election were applied to voting 

71 

in constitutional referendum. And I don’t know what this body 

feels, but I think that is an injustice. All of the historical background that I have submitted to this body clearly shows a singular 

thread that consists of a body of people in the Virgin Islands who 

have historically been denied their right to self-determination, 

their right to write a constitution, for hundreds of years. 

While that occurred, many people were allowed to migrate to the 

Virgin Islands. And the vast majority, who never had a chance to 

exercise this right, had absolutely no say in who came into the Virgin Islands, who was accorded citizenship, and now who is supposed to have the same right of those people who were historically 

denied a right to choose for themselves. Now everybody, the descendants of the colonizers as well as everybody else is mixed up 

in this pot and is supposed to make an act of self-determination? 

That is what Congress has to address. In my testimony, I said 

that—and this is in the written testimony—that we are not trying 

to abrogate U.S. sovereignty, but we would like to determine what 

the parameters of our status is. Justice can’t do that. The President 

doesn’t do that. The only legally authorized body within the United 

States to do that is the Congress. We are a creature of Congress. 

And I don’t want to leave here without knowing what the sense of 

Congress is because everybody keeps saying this is unconstitutional, this is violating that law, this is violating this law. Congress 

makes the law. There is no other body that makes the laws. We 

need to hear from Congress. At least I would like to hear from Congress because everybody has an opinion but the only one that 

counts in terms of the territorial clause is the Congress of the 

United States. 

So the problem I have with going back or having any constitutional convention is who is going to vote. I testified before the 

United Nations in 1989, when you were boss as a commissioner on 

the status commission. That process was illegitimate because it allowed people to vote in that process who were not part of the people of the Virgin Islands as defined under international law. A resolution that was mentioned by my co-delegate, Adelbert Bryan, 35- 

118, requires the administering powers who have territories like 

the Virgin Islands to protect these territories from the disruption 

of their territorial integrity by the migration of outside settlers. 

The outside settlers doesn’t just mean non-citizens. Anyone coming into this island territory is an outside settler. And when they 

come there, we have a very small electorate. Historically, they have 

affected all of our rights to self-determination. They thwarted the 

Third Constitutional Convention. They thwarted what happened in 

the Fourth Constitution. And if allowed, that will happen in the 

Fifth. And that is the issue that we cannot run away from. It is 

not that the people of the Virgin Islands can’t make a decision or 

our constitution will not be adopted. It is who legitimately and historically has the right to make that decision? 

I don’t know of any person in Israel, any Jew, that would allow 

any descendant of a Nazi, whether he believed in the philosophy 

or not, to come and vote on the right of self-determination of Jews. 

So why is it that the people of the Virgin Islands are supposed to 

be so accommodating and be held to a higher standard and let everybody else make a decision. That is wrong, and that is what this 

72 

Congress has to address. This Congress has to address whether or 

not the people of the Virgin Islands, who Congress defined as those 

natives who were not citizens or subjects of any foreign country— 

those are the people that Congress made citizens in 1927. That is 

the group of people who has the inalienable right to exercise these 

things, and that is the group of people that should be the only ones 

voting on constitutions, dealing with political stuff. 

Until Congress addresses that pursuant to the United States obligation under the articles, under the charter of the United Nations, and on the resolution 1541, where this government has to respond annually to what it is doing to allow the people of the Virgin 

Islands—and when they say ‘‘of,’’ the people of the territories, they 

are not talking about visitors and transients and anybody who happens to come there. They are talking about the people who are involuntarily colonized. 

Mrs. CHRISTENSEN. I hear your position. And I need to give the 

others a chance to just respond because we are running close to the 

end of the time. 

Dr. PETERSEN. Thank you, Delegate—— 

Mrs. CHRISTENSEN. Dr. Petersen, I will give you the last word. 

I am going to give you the last word. 

Dr. PETERSEN. I would like to address your thought about reconvening. And I don’t believe that this—and I think you meant the 

current convention reconvening, right? 

Mrs. CHRISTENSEN. Yes. 

Dr. PETERSEN. Yeah. I don’t think this body of 30 could come to 

a conclusion different than it did because when you think about it, 

we actually spent over a year in actual time working on this. And 

we just keep going round and round. So I think we have exhausted 

all avenues. 

As far as one of the questions that was asked before about the 

difficulty in reaching the two-thirds majority, it was extremely difficult. I don’t think anyone could deny that. You could look at the 

transcript and see that throughout the last few months of the convention, I noticed that every vote that was taken was anywhere 

like 12 to 13 or 15 to 10. It never got up to like a vast majority 

of the voted on any of the issues. And that sort of signaled to me 

that when it came to the final vote, that they were going to be pretty much split. 

And in actuality, it was pretty much split. Of the 25 delegates 

that were there, 15 initially voted for it, and 5 voted against, and 

there were 10 absent on the floor. And our rules required or allowed for telephone voting, and they contacted several of the other 

delegates and were able to get them to vote yes, 5 to vote yes to 

make the 20. 

Basically, what happened, the five that voted against, and then 

there were another five or absent or one or two abstentions, some 

of those that voted for it immediately the next day called and had 

quite buyer’s remorse. They called me, they called several people, 

and they said, oh my God, how did I do this. Several of the other 

candidates that voted on the evening of the vote voted for it, in 

their two or three minutes that they had to talk about how they 

felt, expressed varying views as to why they were going to vote for 

it. They were against it, but they were voting for it because there 

73 

had been, in the case of Governor Turnbull—had been in all five 

conventions, and this was possibly his last one, and he wanted to 

see a document go through, not that he agreed with it, but he 

wanted to see something, anything, come to the floor. 

Several of the other delegates that expressed buyer’s remorse the 

next day said that they voted for it because they were sort of pressured or told that they were not true Virgin Islanders and just got 

elected because they were residents in the Virgin Islands. And they 

said, well, to hell with it, I will vote for it, just to give it to the 

people. 

Mrs. CHRISTENSEN. I am going to have to stop there because the 

Chairwoman has been very, very patient. 

Dr. PETERSEN. Yes. 

Mrs. CHRISTENSEN. Did you want to answer the question, Attorney Brady, if the Chair will allow? If you don’t, I will go to Dr. 

Habtes. 

Mr. BRADY. I don’t have an answer. 

Dr. HASSELL-HABTES. Thank you, Delegate Christensen. I am 

very, very concerned because we have worked too hard to give this 

Fifth Constitutional Convention up to just anybody. To tell you the 

truth, I honestly believe, Delegate Christensen and Madame Chair, 

I honestly believe that anything that we do with the people of the 

Virgin Islands on this constitution shouldn’t just be sent back to 

them for a referendum. We have to educate them. Even up to my 

coming here for testimony, there were community members who 

called and said to me, that Organic Act that you all say is governing us, I have never seen it. I have never read it. And I would 

rather have the constitution than an Organic Act from 1936, revised in 1954. But that just tells me they never read it. They don’t 

even know what is in there to have voted for four constitutional 

conventions to, you know, not have a constitution. And I really feel 

this is our time. 

If Congress feels that they need to send it back to the people, 

then that is what Congress should do. I really feel, however, that 

we should take some time with our people and educate them on the 

component parts. Don’t just send it back. Anything that we do with 

our people—$500,000 was spent on an education campaign before 

the constitution even began. We didn’t even get that amount toward the writing of the constitution. And I feel it has been a hard, 

strong struggle, and we cannot give it up. As our Chairperson of 

this committee said for Guam, at least get our foot in the door. At 

least get our foot in the door, and then we can do changes. Thank 

you. 

Mr. BRYAN. But Delegate Christensen, could I have a minute, or 

less than a minute, please, to express something? Madame Chair, 

sorry. Excuse me. You know, I am hearing this number being playing around, whether it was 20 delegates out of 30. And I think 20 

is representing two-thirds as opposed to the majority; 21 really. 

But in any event, in a five-four decision for the Supreme Court, 

that is still a majority. A nine-three decision for the Supreme Court 

is still a majority. What some of the delegates, individuals, are not 

looking at—this constitution—I don’t know about Bryan or Mr. 

Brady or anybody sitting up there—is about the future generations 

of the Virgin Islanders. As an example, if Mr. Brady from Chile, 

74 

as an example, son married to my daughter, a native Virgin 

Islander or an ancestral—or what grandchildren are qualified as 

native Virgin Islanders or ancestral native. If Mr. Modeste and 

Delegate Christensen from Antigua had some kids, moved to the 

Virgin Islands, have children born in the Virgin Islands, those children too are also native Virgin Islanders. And if they can check farther, they may find that one of their parents or grandparents was 

living in the Virgin Islands prior to 1927 and 1932. 

So I am saying don’t let us get caught up in the individuals here. 

Look at what is the future because when the United States wrote 

their Constitution, the Presidents before were not native Americans. They put a provision in there for future Presidents to be 

natural-born Americans. But he is still known even today as the 

President of the United States. Thank you. 

Ms. BORDALLO. I thank all of the members of the second panel. 

I feel you have been giving us very valuable input on this. We have 

been able to hear a little background, who sits on the commission, 

how long you have worked on it and so forth. And that is going to 

be very, very important when Congress decides how we are going 

to go forward. 

So I want to thank you all very, very much. I truly did enjoy this, 

listening to it. And it just makes me think of back home because 

we have some of the same problems. We spent $10 million over a 

period of 10 years trying to work on our commonwealth status, and 

now we are going to have to start over again because we dropped 

the ball for a few years, and it is something that we have just got 

to come to grips with. And I will repeat it again. That is what happened to Guam. We wouldn’t compromise on some of the provisions. And the Federal Government—and we walked out, and it 

wasn’t the right thing to do. 

I didn’t walk out, but the Chairman did. So I just want to thank 

you all very much. And I work very closely with Dr. Christensen, 

and we will continue to do so. 

I want to thank you again. And as members of the Subcommittee 

may have some additional questions for you, we would like to ask 

you to respond to these in writing. The hearing record will be open 

for 10 additional days for any other information that we may want. 

So again, there being no further business—— 

Mrs. CHRISTENSEN. Madame Chair, we would still accept written 

testimony from residents of the Virgin Islands? 

Ms. BORDALLO. Yes, that is correct. 

Mrs. CHRISTENSEN. In that 10-day period? 

Ms. BORDALLO. The hearing record will be open for 10 days. And 

if others that were not part of the panels today wish to send testimony, absolutely. They will be included. 

So there being no further business the Subcommittee, the Chair 

again thanks the members of the Subcommittee and all of our witnesses from both panel one and panel two. The Subcommittee now 

stands adjourned. 

[Whereupon, at 4:46 p.m., the Subcommittee was adjourned.] 

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