[Senate Hearing 111-666]
[From the U.S. Government Publishing Office]





                                                        S. Hrg. 111-666

U.S. VIRGIN ISLANDS, REPUBLIC OF THE MARSHALL ISLANDS, PUERTO RICO, AND 
               POLITICAL STATUS PUBLIC EDUCATION PROGRAMS

=======================================================================

                                HEARING

                               before the

                              COMMITTEE ON
                      ENERGY AND NATURAL RESOURCES
                          UNITED STATES SENATE

                     ONE HUNDRED ELEVENTH CONGRESS

                             SECOND SESSION

                                   TO

   RECEIVE TESTIMONY ON THE PROPOSED CONSTITUTION OF THE U.S. VIRGIN 
  ISLANDS; S. 2941, THE REPUBLIC OF THE MARSHALL ISLANDS SUPPLEMENTAL 
NUCLEAR COMPENSATION ACT OF 2010; H.R. 3940, AN ACT TO AMEND PUBLIC LAW 
  96-597 TO CLARIFY THE AUTHORITY OF THE SECRETARY OF THE INTERIOR TO 
   EXTEND GRANTS AND OTHER ASSISTANCE TO FACILITATE POLITICAL STATUS 
  PUBLIC EDUCATION PROGRAMS FOR THE PEOPLES OF THE NON-SELF-GOVERNING 
   TERRITORIES OF THE UNITED STATES; AND H.R. 2499, THE PUERTO RICO 
                         DEMOCRACY ACT OF 2010

                               __________

                              MAY 19, 2010


                       Printed for the use of the
               Committee on Energy and Natural Resources





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               COMMITTEE ON ENERGY AND NATURAL RESOURCES

                  JEFF BINGAMAN, New Mexico, Chairman

BYRON L. DORGAN, North Dakota        LISA MURKOWSKI, Alaska
RON WYDEN, Oregon                    RICHARD BURR, North Carolina
TIM JOHNSON, South Dakota            JOHN BARRASSO, Wyoming
MARY L. LANDRIEU, Louisiana          SAM BROWNBACK, Kansas
MARIA CANTWELL, Washington           JAMES E. RISCH, Idaho
ROBERT MENENDEZ, New Jersey          JOHN McCAIN, Arizona
BLANCHE L. LINCOLN, Arkansas         ROBERT F. BENNETT, Utah
BERNARD SANDERS, Vermont             JIM BUNNING, Kentucky
EVAN BAYH, Indiana                   JEFF SESSIONS, Alabama
DEBBIE STABENOW, Michigan            BOB CORKER, Tennessee
MARK UDALL, Colorado
JEANNE SHAHEEN, New Hampshire

                    Robert M. Simon, Staff Director
                      Sam E. Fowler, Chief Counsel
               McKie Campbell, Republican Staff Director
               Karen K. Billups, Republican Chief Counsel










                            C O N T E N T S

                              ----------                              

                               STATEMENTS

                                                                   Page

Bingaman, Hon. Jeff, U.S. Senator From New Mexico................     1
Bordallo, Hon. Madeleine Z., Delegate of Guam, U.S. House of 
  Representatives................................................     5
Cedarbaum, Jonathan G., Deputy Assistant Attorney General, 
  Department of Justice..........................................    50
Christensen, Hon. Donna M., Delegate of the Virgin Islands, U.S. 
  House of Representatives.......................................    45
Rios, Hector J. Ferrer, President, Popular Democratic Party......    15
Fortuno, Hon. Luis G., Governor of Puerto Rico...................    12
James, Gerald Luz Amwur, II, President, Fifth Constitutional 
  Convention of the Virgin Islands...............................    47
Martinez, Ruben Angel Berrios, President, Puerto Rican 
  Independence Party.............................................    25
Murkowski, Hon. Lisa, U.S. Senator From Alaska...................     4
Pierluisi, Hon. Pedro R., Resident Commissioner of Puerto Rico, 
  U.S. House of Representatives..................................     9
Pula, Nikolao I., Director, Office of Insular Affairs, Department 
  of the Interior................................................    74
Silk, John M., Minister of Foreign Affairs, Republic of the 
  Marshall Islands...............................................    67

                               APPENDIXES
                               Appendix I

Responses to additional questions................................    83

                              Appendix II

Additional material submitted for the record.....................    95

 
U.S. VIRGIN ISLANDS, REPUBLIC OF THE MARSHALL ISLANDS, PUERTO RICO, AND 
               POLITICAL STATUS PUBLIC EDUCATION PROGRAMS

                              ----------                              


                        WEDNESDAY, MAY 19, 2010

                                       U.S. Senate,
                 Committee on Energy and Natural Resources,
                                                    Washington, DC.

    The committee met, pursuant to notice, at 9:30 a.m. in room 
SD-366, Dirksen Senate Office Building, Hon. Jeff Bingaman, 
chairman, presiding.

OPENING STATEMENT OF HON. JEFF BINGAMAN, U.S. SENATOR FROM NEW 
                             MEXICO

    The Chairman. OK, why don't we get started. The committee 
meets this morning to receive testimony on 4 matters related to 
U.S.-affiliated islands.
    First is H.R. 2499, the Puerto Rico Democracy Act of 2010.
    I don't know if we have some protests, or what.
    At any rate, the second item is the proposed constitution 
of the U.S. Virgin Islands.
    Third is S. 2941, the Republic of the Marshall Islands 
Supplemental Nuclear Compensation Act.
    The fourth item is H.R. 3940, to Clarify the Authority of 
the Interior Secretary to Provide Grants for Political Status 
Education Programs.
    First, with regard to H.R. 2499, this legislation would 
authorize the Government of Puerto Rico to hold a 2-round vote 
on political status. The first vote would be on whether the 
People of Puerto Rico wish to continue the current relationship 
with the United States, or to change this relationship. If a 
majority favors continuing the current relationship, then a 
vote would be held again every 8 years.
    If, however, a majority favors change, then there would be 
a second vote for the people to express their preference. That 
preference would be among 4 options: independence, sovereignty, 
an association with the United States, Statehood, or continuing 
the present Commonwealth relationship.
    Puerto Rico's status is a topic of keen interest to 4 
million U.S. citizens living in the islands, and to 4 million 
citizens of Puerto Rican ancestry living in the mainland. I 
believe this bill advances the status process by identifying 
the 4 status options available to Puerto Rico under U.S. law, 
however, there's a long way to go. Congress has faced 
significant challenges in the past when considering Puerto 
Rico's status legislation, and there are additional challenges, 
now, as Congress enters the mid-term election season.
    The second item before the committee is the proposed 
constitution for the Virgin Islands. On March 1 of 2010, 
Congress received from the President a proposed constitution 
drafted by the 5th Constitutional Convention of the Virgin 
Islands. The current law provides Congress with a 60-day review 
period, and the opportunity to approve, modify, or amend the 
draft before it is presented to the people for approval or 
rejection in a plebiscite.
    In his message to Congress, the President included an 
analysis by the Justice Department which describes several 
concerns with the draft.
    The third item before us is S. 2941, it would modify 
several U.S. programs that respond to the health and 
environmental effects of the U.S. nuclear testing program 
conducted in the Marshall Islands in the 1940s and 1950s. This 
bill is identical to legislation introduced in 2007 at the 
request of the President of the Marshall Islands, however, 
there was a change in the Islands' government before the 
committee could complete consideration of amendments that were 
under discussion with the former Marshall Islands' government 
and with the previous U.S. Administration.
    The final item before us is H.R. 3940, it would clarify 
that the Secretary of the Interior is authorized to provide 
technical assistance from the Department's existing technical 
assistance program to the Governments of Guam, Virgin Islands, 
and American Samoa to, quote, ``Facilitate public education 
programs regarding political status options.''
    I want to start by thanking all of the witnesses for coming 
before the committee, I look forward to hearing their 
contributions, and at this point I'll recognize Senator 
Murkowski for any opening statements she would like to make.
    [The prepared statement of Representative Velazquez 
follows:]

Prepared Statement of Hon. Nydia M. Velazquez, U.S. Representative From 
                         New York, on H.R. 2499
    Thank you, Chairman Bingaman, for holding this important hearing. 
As one of the four Puerto Rican Members of Congress, I am personally 
invested in the status of Puerto Rico. I appreciate the opportunity to 
provide my view on H.R. 2499 and its impact on Puerto Rico and the 
United States.
    I oppose this bill. I have stated before that I believe that the 
best process to determine the will of the people regarding status is 
through a Constitutional Assembly. However, if the process for self-
determination should be through a plebiscite, it is my firm belief that 
Puerto Ricans should, at minimum, have all the options available from 
which to choose.
    Whenever the debate about the status of Puerto Rico occurs, it 
still amazes me that the same old issues keep resurfacing. The tactics 
and actions taken by interested parties continue to be a disservice to 
the people of Puerto Rico and an affront to the democratic concept of 
self-determination.
    What seems to be missing from this debate is the realization that 
prior processes, in both the House and the Senate, taught us important 
lessons. We need to acknowledge these lessons and apply them to today's 
efforts.
    In the past 15 years, the House has acted on flawed legislation 
that eventually, and properly, stalled in this body. The Senate's most 
recent experience in conducting a detailed examination of this issue 
was the extensive effort undertaken by this committee's chairman in 
1989 Senator Bennett Johnston. That process, as comprehensive as it 
was, was unable to complete the legislative process. Since then, there 
has been no other Congressional effort that has sought to ascertain the 
answers to economic, political, social and constitutional questions 
that are relevant in any debate on the future of Puerto Rico and the 
United States.
    So here we are, today, continuing to talk about Puerto Rico, its 
past, present and possible future. Still, even with the endless debate, 
we do not seem to learn the lessons of the previous efforts on this 
matter.
    This is especially true if you examine these past two decades. We 
have wastefully spent time discussing:

   Whether Congress would pre-commit to a status decision for 
        the people of Puerto Rico;
   Should the Senate or the House define for Puerto Ricans 
        their status options?
   What limits our Constitution does or does not have?

    Mr. Chairman, we should not place the cart in front of the horse. 
Let's take the novel position that Puerto Ricans should first tell us 
what they want, before we debate what we want. In order to have a 
constructive discussion on how to address the Puerto Rico question, we 
must recognize the following lessons:

   First, it is for the people of Puerto Rico, including those 
        communities in the United States, to exercise their right to 
        self-determination--not Congress.
   Second, for a process of self-determination to be accepted 
        as valid by the people, it must be transparent, fair and agreed 
        upon by consensus.
   Third, proponents of status options that fail to win the 
        support of the people in Puerto Rico can not circumvent the 
        will of the people through federal legislation; Congress will 
        not validate nor sanction legislative schemes used to engineer 
        an electoral victory.

    Two weeks ago, the House had a very spirited debate about this 
bill. It is my view that the majority of members saw a flawed bill. 
Even the Rules Committee seemed to tell the House that the bill had 
troubling issues by allowing debate on 8 amendments, 5 of which dealt, 
in one form or another, with the process laid out in the bill. Whether 
it was eliminating one round of voting or adding an option to the 
ballot or even striking the whole process, the House clearly heard the 
message that the bill was unfair.
    Today, the Senate has a version of H.R. 2499 that includes the 
Commonwealth option in the second round of voting under this bill. 
However, the bill is still the byproduct of a process that did not 
reach consensus with other status options supporters and tried 
unsuccessfully to exclude an option from the ballot. This bill is not 
conducive to an informed self-determination decision by the people of 
Puerto Rico. Rather, it was conceived with a predetermined agenda in 
mind. I strongly urge you to not consider it.
    Fairness, transparency and consensus are paramount to this debate. 
In examining these issues, the highest priority should be given to what 
the people of Puerto Rico want. Congress should not be considering 
legislation that would stack the deck to reach a predetermined outcome, 
as the original version of this bill sought to do. Puerto Ricans must 
be allowed to express their aspirations in a democratic manner that is 
not encumbered with convoluted processes designed to undermine one side 
or another.
    Mr. Chairman, I appreciate opportunity to share my thoughts on this 
important issue.

        STATEMENT OF HON. LISA MURKOWSKI, U.S. SENATOR 
                          FROM ALASKA

    Senator Murkowski. Thank you, Mr. Chairman and good morning 
to all. We've got a full house today, and I think that it is an 
indicator of the interest that is held, not only, of course, 
with the legislation as it relates to Puerto Rico's political 
status, but as to our other territories. I think, oftentimes 
these areas are part of our government's responsibility that 
are often overlooked or even sometimes forgotten.
    Again, from the attendance, there's no doubt that the topic 
for the first panel, Puerto Rico's political status is a matter 
of tremendous interest to the millions of Puerto Ricans that 
reside on the island or across the United States.
    As someone who was born in Alaska when we were still a 
territory, I do have great sympathy for the desire of the 
people of Puerto Rico to resolve their political status. It 
took Alaska 92 years--92 for us to resolve our political 
status. Puerto Rico has been working on it for 112.
    So, while I am also sympathetic, I am also mindful that the 
process to determine Alaska's future was driven from Alaska, 
not from Washington, DC. I think that that's critical.
    I do recognize that Puerto Rico has attempted on a number 
of occasions to hold plebiscites to determine the wishes of the 
Puerto Rican people but the results have not been conclusive. I 
also recognize that outside of the Presidential Task Force on 
Puerto Rico's Status the Federal Government has not provided 
Puerto Rico with much guidance as to what their options are.
    Mr. Chairman, I do agree with the Presidential Task Force 
Report and with the text of H.R. 2499 that there are 4 options 
available to Puerto Rico: maintaining the current Commonwealth 
status; independence; free association; and, statehood. I am 
hopeful that this committee can help provide some of that 
guidance while at the same time allow those in Puerto Rico to 
lead the political effort on political status, and not have it 
driven from here, in Washington, DC.
    Now, with regard to the proposed constitution for the U.S. 
Virgin Islands, I want to echo the concerns that have been 
raised by both the Virgin Islands Attorney General and the U.S. 
Department of Justice regarding the constitutionality of some 
of the provisions as well as potential conflict with Federal 
law.
    Creating different rights, restrictions, and benefits for 
citizens based on when they or their ancestors were born in the 
Virgin Islands, particularly with respect to property taxes and 
voting rights, appears to be a violation of the U.S. 
Constitution's Equal Protection Clause.
    I am also concerned about provisions that appear to bestow 
greater power to the United States Virgin Island Government 
than is provided in Federal statute: the ability to manage 
submerged lands out to 12 nautical miles--in contradiction with 
the Territorial Submerged Lands Act which conveyed to the 
Virgin Islands title to submerged lands out to 3 geographic 
miles; and also the ability to set the minimum age for 
employment, which has the potential to contradict the Fair 
Labor Standards Act which sets the minimum age of employment at 
14 years.
    I do look forward to hearing from the President of the 
Fifth Constitutional Convention on how these provisions are 
consistent with the Constitution and Federal law, or how they 
may be changed.
    I am also pleased that we are considering the Marshall 
Islands Supplemental Nuclear Compensation Act. With the Supreme 
Court's decision not to hear the petition for changed 
circumstances, the ball is here in Congress' court on whether 
additional measures with regard to the nuclear testing are 
warranted.
    I believe that the Chairman and I have introduced a bill 
that's a responsible piece of legislation that addresses some 
of the concerns put forward. It provides for monitoring of 
Runit Island, as well as ensured that those Marshall Islands 
citizens who worked on the Test Sites during the Trust 
Territory days are eligible for Energy Employees Occupational 
Illness Compensation program. Now, this is a fix that should 
not be necessary but some Federal agencies apparently disagree 
with the Congressional intent in our previous legislation on 
this issue.
    The bill also calls for a National Academies study to 
review all scientific reports and identify if parts of the RMI 
outside of the Four Atolls were impacted by U.S. nuclear 
testing. This will hopefully allow the U.S. and the Marshall 
Islands to resolve our differences on this matter.
    Mr. Chairman, I look forward to the testimony that we will 
receive this morning, and learning more about all that we have 
before us. Thank you.
    The Chairman. Thank you very much.
    As is customary, the committee will hear, first, from the 
House sponsors of the House bills that are being considered 
today. Delegate Madeleine Bordallo, who is from Guam, of 
course, is the sponsor of H.R. 3940, and Resident Commissioner 
Pedro Pierluisi, from Puerto Rico, is the sponsor of H.R. 2499.
    Delegate Bordallo, why don't you go right ahead first, and 
then Commissioner Pierluisi.

STATEMENT OF HON. MADELEINE Z. BORDALLO, DELEGATE OF GUAM, U.S. 
                    HOUSE OF REPRESENTATIVES

    Ms. Bordallo. Thank you very much, Chairman Bingaman and 
Ranking Member Murkowski. It's nice to see you again. Of 
course, Senator Menendez.
    I come before the committee today, both as a representative 
from Guam, seated in the House, and as the chairwoman of the 
House Subcommittee on Insular Affairs, Oceans, and Wildlife.
    The issues being addressed at the hearing today are ones 
that have been explored by this committee before, yet they 
remain matters under active discussion, and for which 
congressional action is most needed to resolve. We have already 
acted on each matter in the House in this Congress, and we look 
to this committee now for initiating appropriate, complementary 
action in the Senate.
    This hearing is a good start, Mr. Chairman, and I 
appreciate the courtesy you have extended to me to offer a few 
points for reflection today. I have submitted my longer 
statement for the record.
    First, for 111 years, now, and as a result of the treaty 
ending the Spanish-American War, Puerto Rico and Guam have been 
under the United States flag. The people of the unincorporated 
territories long for resolution of status, and release from 
being perpetually placed in a state of uncertainty and 
inequality with regard to their political rights and full self-
governance. The issue of political status remains an important 
point of discussion for Americans residing in Guam, American 
Samoa, and the United States Virgin Islands. Most importantly, 
in my home district of Guam, the issue of status has been 
raised by local leaders in the context of conditioning the 
military buildup, and the stationing of additional military 
personnel on our island.
    Yet, some status options are more suitable and appropriate 
for one territory more than they may be for another. There is 
no universal, one-size-fits-all approach to resolving this 
matter for all of our territories. Each territory is on its own 
timeline and path for resolution, but their people must be 
afforded the ability to exercise their right to self-
determination and express their desire for a permanent, non-
territorial status.
    Two measures, Mr. Chairman, before you today would engender 
such progress. H.R. 2499 would Congressionally sanction a 
status plebiscite for the people of Puerto Rico. Congressional 
authorization is critical for this exercise, just as Federal 
resources and guidelines are needed for the status education in 
the other territories, as would be provided under the terms of 
H.R. 3940.
    H.R. 3940 would authorize the Secretary of the Interior to 
assist the Governments of Guam, American Samoa, and the United 
States Virgin Islands in developing and implementing needed 
political status public education programs. These programs 
would help our people of these territories in understanding the 
various and viable political status options available to them. 
With such information they can, in turn, express informed 
opinions about their future, in any political status plebiscite 
or convention.
    I appeal to you today, Mr. Chairman, for your judicious 
exercise of the constitutional responsibility of the Congress 
under the Territorial Clause to dissolve this inequity for the 
territories, and resolve the status issue for the people of the 
territories, consistent with their political aspirations.
    Puerto Rico is ready for a plebiscite, and Congress should 
give it standing. Guam, after spending over a decade pursuing a 
Commonwealth arrangement, much along the lines of Puerto Rico 
and the CNMI, but which stalled with the Administration, is 
ready now for the next stage, and awaits status education 
backed with Federal support. This would ensure only viable 
options are presented to voters. I stand ready to work with the 
committee to ensure the text of H.R. 3940 is constructed such 
to address your interests and any concerns that you may have, 
or your committee.
    Second, the people of the Virgin Islands continue their 
journey to enhance self-government. For the fifth time they 
have, like the people of Guam, attempted before to adopt their 
own constitution. Attempts at drafting and adopting a 
constitution locally for Guam and the VI before have been 
frustrated by the lack of action by Congress to resolve the 
underlying fundamental status question. Thus, the emphasis 
remains on resolution of status, and I urge this committee to 
look carefully at the views expressed by the leaders.
    Last, it is encouraging that the committee is attending to 
the legacy of the U.S. nuclear testing in the Pacific, and what 
that legacy means for our friends, the people of the Marshall 
Islands. The testing, it is argued, brought about strength and 
peace in the last decade following the second World War. But a 
peace with their contaminated homeland, and a peace for the 
Marshallese eludes them without proper action from this 
Congress to improve U.S. assistance for addressing the 
environmental, resettlement and health challenges. Last month, 
the President's Cancer Panel issued its report and dedicated a 
specific portion of it to the issues facing the Marshallese.
    So, this is a matter of justice, and Congress should do 
more to ensure that they are made whole, and their public 
health protected.
    So, I thank you, in summing up Mr. Chairman, Ranking 
Member, and members of the committee, for your leadership and 
you staff's support on insular policy. We look forward to 
continuing to work with you to advance these bills under 
consideration today. I thank you, and as we say in Guam, ``Si 
Yu'us Ma'ase.''
    [The prepared statement of Delegate Bordallo follows:]

  Prepared Statement of Hon. Madeleine Z. Bordallo, Delegate of Guam, 
                     U.S. House of Representatives
    Hafa Adai and Thank you Chairman Bingaman, Ranking Member Murkowski 
and Members of the Committee for the opportunity to testify in support 
of H.R. 3940, which is a bill I introduced, to amend Public Law 96-597 
to clarify the authority of the Secretary of the Interior to extend 
grants and other assistance to facilitate political status public 
education programs for the peoples of the non-self-governing 
territories of the United States. As the Chairwoman of the Subcommittee 
on Insular Affairs, Oceans and Wildlife in the House Committee on 
Natural Resources, I worked with my colleagues on H.R. 3940 which 
passed the full House on December 7, 2009.
    Originally, H.R. 3940 as introduced only addressed political status 
public education for Guam. At a hearing held on November 5, 2009, in 
the Subcommittee on Insular Affairs, Oceans and Wildlife, Congressman 
Eni Faleomavaega of American Samoa and Congresswoman Donna Christensen 
of the U.S. Virgin Islands expressed a desire to broaden the 
application of the bill to account for the needs of their islands. At 
the hearing, the Subcommittee heard supporting testimony from the 
Honorable Felix Camacho, Governor of Guam and Mr. Nikolao Pula, 
Director of the Office of Insular Affairs in the U.S. Department of the 
Interior. At a full Natural Resources Committee markup on November 18, 
2009, I offered an Amendment in the Nature of a Substitute which made 
changes to H.R. 3940 to include the other non-self-governing 
territories, which was adopted by unanimous consent.
    Mr. Chairman and members of the Committee, H.R. 3940 is an 
important bill for this body because the ``territorial clause'' in 
Article IV of the United States Constitution vests with the Congress 
the power to dispose of and make all needful rules and regulations 
respecting the territories of the United States. Recommendations as to 
the exercise of such plenary authority by the Congress rest with this 
Committee, and your action on this bill would be a manifestation of the 
Constitutional authority and responsibility. As a member of the United 
Nations, the United States also assumes by virtue of Article 73 of the 
United Nations Charter the international obligation to develop self-
government and to take due account of the political aspirations of the 
people of her territories. Mindful of these responsibilities we 
continue today a discussion that involves the political history and 
future of Guam and other non-self governing territories.
    The issue of political status remains to be an important point of 
discussion for the Americans residing in Guam, American Samoa and the 
U.S. Virgin Islands. More importantly in my home district of Guam, the 
issue of status has been raised by local leaders in the context of 
conditioning the military build-up and the stationing of additional 
military personnel on island. Today Guam continues to be an 
``unincorporated territory'' of the United States. It is 
``unincorporated'' because not all provisions of the U.S. Constitution 
apply to the territory. The relationship of Guam to the United States 
is extensive and we have been under the U.S. Flag for 111 years. Guam 
was ceded from Spain to the United States, along with Puerto Rico, 
under the terms of the Treaty of Paris that ended the Spanish-American 
War in 1898. In 1950, Congress passed and President Truman signed into 
law the Organic Act of Guam, conferring U.S. citizenship on the people 
of Guam and establishing limited local self government. Yet, we remain 
unequal Americans in a status where the Constitution does not fully 
apply.
    Under the Organic Act, the Secretary of the Interior is vested with 
administrative responsibility for Guam and Guam is ``organized'' with a 
republican form of government with locally-elected executive and 
legislative branches and an appointed judicial branch. In 1968, 
Congress also passed a law allowing for the Governor of Guam to be 
elected by local popular election. Prior to the enactment of that law, 
the Governor was appointed by the Secretary of the Navy and later by 
the President during the years of Interior responsibility. In 1970, 
Congress also passed a law allowing for the election every two years of 
a Delegate to Congress to represent Guam.
    In 1976, Congress afforded the people of Guam an opportunity to 
adopt a local Constitution. In 1979, the people of Guam rejected the 
proposed Constitution by a referendum held under United Nations 
observation. Following this outcome, the Government of Guam through its 
laws established a commission for the purpose of working to improve the 
territory's political status according to the aspirations of the people 
of Guam.
    A plebiscite was held in 1982, resulting in a plurality vote for a 
``Commonwealth'' status (49%), followed by statehood (26%), status quo 
(10%), incorporated territory (5%), free association and independence 
(4% each) and ``other'' (2%). Pursuant to that outcome the Guam 
Commission on Self-Determination drafted a proposed Guam Commonwealth 
Act, which was approved in two 1987 plebiscites. The Guam Commonwealth 
Act was introduced by my immediate two predecessors in four consecutive 
Congresses--the 100th through the 105th Congresses. A full committee 
legislative hearing of the Committee on Resources was held on the Guam 
Commonwealth Act during the 105th Congress on October 29, 1997. 
Ultimately, the political aspirations of the people of Guam as 
represented by the Guam Commonwealth Act were never realized despite 
the efforts made by Guam's representatives, previous Administrations, 
this Committee and the Congress as a whole.
    Thus, we are on a journey to ultimately resolve the political 
status of Guam and the unincorporated territories. This relationship 
was not meant to be permanent. Our inequality must be addressed, and 
H.R. 3940 is one step toward resolution. H.R. 3940 would authorize the 
Secretary of the Interior to assist the governments of Guam, American 
Samoa, and the United States Virgin Islands in developing and 
implementing the needed political status public education programs. 
These programs would help the people of these territories in 
understanding the various and viable political status options available 
to them. With such information they could in turn express informed 
opinions about their future in any political status plebiscite or 
convention.
    Although efforts have been made in the past in each territory 
toward improving its status consistent with the right of self-
determination, political status remains ultimately unresolved for them. 
In Guam, a local law has authorized a plebiscite to be held that is to 
involve a public education program. In American Samoa, the work of a 
locally-established commission to assess status options, the third such 
commission in the history of the territory, was recently concluded. A 
plebiscite on status was also held previously in the Virgin Islands. 
Each circumstance, however, demonstrates the importance of a public 
education program for resolving status in each territory and for 
preparing for future plebiscites or other processes by which their 
people can collectively express their political aspirations.
    This bill simply clarifies in law that the Secretary of the 
Interior can exercise existing authority to provide general technical 
assistance to these territories for the purpose of facilitating 
political status public education. It is an important step for the 
highest legislative body to reaffirm our constitutional commitment to 
the non-self governing territories. In closing, I ask that the full 
Senate Energy and Natural Resources committee pass H.R. 3940 and work 
towards final passage in the full Senate. Thank you again for the 
opportunity to testify.

    The Chairman. Thank you very much for that excellent 
testimony.
    Let me go right to Commissioner Pierluisi, why don't you 
proceed?

STATEMENT OF HON. PEDRO R. PIERLUISI, RESIDENT COMMISSIONER OF 
           PUERTO RICO, U.S. HOUSE OF REPRESENTATIVES

    Mr. Pierluisi. Chairman Bingaman, Ranking Member Murkowski, 
members of the committee thank you for giving me the 
opportunity to speak in support of my bill, H.R. 2499.
    H.R. 2499 is a bill about democracy, as the title suggests. 
It deals with the right of self-determination, and Congress 
doing the right thing. It was approved in a strong bipartisan 
vote at a time that we all know bipartisanship is in short 
supply. It was approved by the House, now it is the Senate's 
turn to consider it.
    The purpose of the bill is straightforward. What Congress 
is doing is authorizing the Government of Puerto Rico to 
conduct one or more plebiscites in which the people of Puerto 
Rico will be able to express their views regarding the Island's 
political status.
    The threshold question posed in the first plebiscite is a 
key question. It's the essence of democracy. Congress is 
authorizing the Government of Puerto Rico to ask the American 
citizens living in Puerto Rico, whether they want Puerto Rico 
to continue having its present form of political status, or 
whether they want Puerto Rico to have a different political 
status.
    Now, why is that so important? As Ranking Member Murkowski 
mentioned, we've been a territory now for 112 years. By its 
definition, it means that Puerto Rico has no voting 
representation in Congress, its residents can not vote for the 
President and Congress can, at any point in time, treat us 
differently than our fellow citizens in the States. It just 
happened with health reform.
    It is my job to fight for them. But the U.S. Supreme Court 
has stated, repeatedly, that Congress can treat us differently, 
so long as there is a rational basis for doing so--the lowest 
possible Constitutional scrutiny.
    Now, if a majority of the people of Puerto Rico want to 
remain under this status, so be it. But, shouldn't Congress 
know whether the majority of the people of Puerto Rico consent 
to this arrangement? That's the purpose of the first 
plebiscite. If the majority tells the Congress that they want a 
different political status, then Congress is authorizing a 
second plebiscite, in which you will have the 4 options before 
the people of Puerto Rico--the only valid and available 
options.
    It's important that Congress, at the very least, give some 
guidance to the people of Puerto Rico. True, we've had some 
plebiscites in the past, but the problem is, Congress has never 
spoken, and that's the least Congress should be doing, in terms 
of telling us what options we have. Those options are laid out 
in this bill: Statehood, independence, free association, an 
association between Puerto Rico and the United States as 
sovereign nations that is not subject to the Territory Clause 
of the United States Constitution, and the current status.
    I should note something. When I introduced this bill 
originally, I did not have that fourth option, the current 
status. My thinking, as a lawyer, was like--I was being logical 
in the sense of, if the majority of the people reject the 
current status, why include it in the second time around?
    But, I have to say now, on behalf of my fellow colleagues 
in the House, the sentiment in the House was, ``Let's make sure 
that nobody's left out.'' Nobody who wants to support a valid 
option, and the current status, called the Commonwealth, is one 
option. We've been through it for a long time now.
    It is important to note that this bill is not as ambitious 
as previous bills that have been present or pending before the 
Congress. It allows Congress to respond in any fashion it 
thinks appropriate, once we hear from the people of Puerto 
Rico. It is the first step in a process of dealing with the 
status issue of Puerto Rico; it is the logical and fair first 
step.
    Later today, you will hear from leaders in Puerto Rico and 
don't be surprised that some will oppose this bill. That's the 
very nature of the matter. There are differences in terms of 
the options, and there are differences in terms of the process. 
My judgment, the judgment of the Governor of Puerto Rico, the 
judgment of most--large majority of the elected officials in 
Puerto Rico is, we should have a plebiscite. Consult the people 
directly, as opposed to a constitutional convention.
    It is about time we hear from the people of Puerto Rico. 
That is my prayer to this committee. That is my prayer to the 
Senate. My people have been patient enough; it is time to act.
    I will ask you to report favorably, H.R. 2499 for approval 
by the Senate. Thank you very much.
    [The prepared statement of Resident Commissioner Pierluisi 
follows:]

Prepared Statement of Hon. Pedro R. Pierluisi, Resident Commissioner of 
               Puerto Rico, U.S. House of Representatives
    Chairman Bingaman, Ranking Member Murkowski, and Members of the 
Committee:
    Thank you for giving me the opportunity to speak in support of my 
bill, H.R. 2499, the Puerto Rico Democracy Act.
    This legislation, which was approved by the House in a strong 
bipartisan vote, would authorize a fair and non-binding plebiscite 
process in Puerto Rico regarding the Island's political status. That is 
all the bill would do-no less and no more.
    Puerto Rico is a U.S. territory. Whatever its merits, territorial 
status has severe and inherent shortcomings. The U.S. citizens of 
Puerto Rico, four million proud, serve in the U.S. military and their 
lives are governed by federal law. Yet they cannot vote for their 
president and commander-in-chief, are not represented in the Senate, 
and send a single non-voting member to the House.
    The sad truth is that, since joining the American family 112 years 
ago, my people have never had a meaningful voice in their national 
government. Laws enacted by Congress often treat residents of Puerto 
Rico worse than their fellow citizens in the states. These laws are 
upheld by the courts if there is any rational basis for the disparate 
treatment, the lowest level of constitutional scrutiny. Our Founding 
Fathers, and generations of American patriots who followed them, 
established the greatest democracy the world has known. I cannot 
believe they could have contemplated that the undemocratic governing 
arrangement that exists between the United States and Puerto Rico would 
last for more than a century, or that it might effectively be 
transformed into the Island's permanent status.
    The Constitution vests Congress with almost absolute power over the 
territories. The fundamental premise of 2499 is that Congress, in the 
responsible exercise of its authority, should ask the people of Puerto 
Rico whether they consent to the current status or prefer a different 
status. The first-stage plebiscite authorized by the bill would pose 
this threshold question to voters.
    If a majority expresses a desire for a different status, the 
legislation would authorize a second-stage plebiscite where voters 
would state their preference among four options: the current 
territorial status and the three possible alternatives-independence, 
free association, and statehood. By adopting an amendment during floor 
debate to add the current status as a ballot option in this plebiscite, 
the House has put to rest the argument that the bill ``stacks the 
deck'' in favor of statehood or any other status option. That charge, 
to the extent it was ever colorable, no longer has the slightest merit.
    H.R. 2499 does not require any federal action if a majority chooses 
a different status in the first vote and a particular non-territorial 
option in the second vote. Congress and the President should decide 
which steps to take-if any-after seeing the results.
    I hope that the Senate will follow the House's lead and pass this 
bill. But I am the first to say that inaction by this chamber is not 
the real obstacle to a fair process of self-determination. Rather, the 
greatest barrier to meaningful self-determination is that politicians 
affiliated with the Island's minority Popular Democratic Party have not 
been honest with the people of Puerto Rico.
    In addition to denying the self-evident fact that Puerto Rico is a 
territory, these politicians continue to proclaim the feasibility of a 
pie-in-the-sky proposal under which Puerto Rico would receive more 
federal benefits than it does now, while also having the power to 
decide which federal laws apply to the Island, all pursuant to a 
bilateral pact from which the U.S. could not withdraw absent Puerto 
Rico's consent.
    As the House counterpart to this Committee stated in its report on 
2499, this impossible proposal has been ``consistently opposed by 
federal authorities . . . on both constitutional and policy grounds.'' 
Naturally, those who champion this scheme do not talk about it in 
Washington, because they know it is a non-starter. But they talk about 
it incessantly in San Juan. This has caused substantial confusion in 
Puerto Rico about the Island's true status options, and has resulted in 
misinformed and inconclusive local status referenda in 1967, 1993, and 
1998.
    In passing 2499 by a large margin, the House accomplished several 
important things. It clarified that there are only three possible 
alternatives to the current status. It delivered a devastating blow to 
those who deceive the people of Puerto Rico for political gain. And it 
helped ensure that the forthcoming plebiscite process in Puerto Rico 
will be a meaningful exercise in self-determination, where voters will 
finally have the opportunity to express their preference among the 
valid-and only the valid-status options. I hope this Committee, like 
the House before it, will show respect for the people of Puerto Rico by 
leveling with them about their real choices.
    Thank you.

    The Chairman. Thank you. Thank you, both, for your 
excellent statements. We appreciate your coming before our 
committee and advocating for the bills that you have sponsored. 
We will hear from both panels and try to reach our conclusions 
as to how to proceed, but thank you both.
    I did not have any questions, let me just ask if any member 
wanted to pose a question to either of the sponsors of the 
legislation. If not, we'll permit you to go on with your 
duties, whatever is required, and we will go on with the first 
panel.
    Thank you very much.
    Mr. Pierluisi. Thank you.
    The Chairman. Panel one is the Honorable Luis Fortuno, who 
is the Governor of the Commonwealth of Puerto Rico; the 
Honorable Hector Ferrer Rios, who is President of the Popular 
Democratic Party; and the third witness is the Honorable Ruben 
Angel Berrios Martinez, who is President of the Puerto Rican 
Independence Party.
    We thank all of you for being here. Our ground rules here 
are that, obviously, whatever written statements you have 
developed is welcome. We will include the full statement in the 
record. I think the committee would benefit most if you could 
summarize the main points that you think we need to understand 
and then we will, undoubtedly, have questions.
    So, why don't we start with Governor Fortuno, if you would 
like to start and then go across the table.

   STATEMENT OF HON. LUIS G. FORTUNO, GOVERNOR OF PUERTO RICO

    Governor Fortuno. Thank you, Mr. Chairman and Ranking 
Member Murkowski as well as the distinguished members of this 
committee for the opportunity to appear this morning before you 
and the other fellow members of this committee to express my 
support of H.R. 2499, the Puerto Rico Democracy Act of 2009. I 
especially appreciate the opportunity to follow Puerto Rico's 
sole representative--elected representative in Congress, 
Resident Commissioner Pedro Pierluisi, who was my running mate 
in 2008.
    Today, I appear before you as Governor of Puerto Rico and 
as President of Puerto Rico's Statehood Party, which includes 
national Republicans like myself as well as Democrats like 
Resident Commissioner Pierluisi.
    In the elections of 2008, voters gave candidates of our 
Party the biggest margin of any electoral victory in 44 years. 
We obtained over two-thirds of the seats in each house of the 
legislature and three-fifths of the mayorships.
    The candidates in the ``Commonwealth'' party, by contrast, 
received the lowest percentage of votes for their party in 
history. This is particularly relevant because the process 
proposed by H.R. 2499 was an issue in the elections. Our party 
campaigned on a pledge to seek congressional sponsorship of a 
status choice process in order to provide a choice among real 
status options to be made directly by the voters in 
plebiscites.
    Why does Congress need to act? Because there is a patently 
obvious need for the territory's real options to be clarified. 
Under the present status, given Congress' constitutional 
jurisdiction under the Territory Clause, Congress can provide 
the necessary clarification. Specifically, previous political 
status plebiscites without Federal legislation in the first 2 
instances, at the end of the 1960s and the beginning of the 
1990s were inconclusive as the Ranking Member mentioned 
earlier, because of proposals for an unconstitutional and 
impossible governing arrangement. The most recent plebiscite, 
12 years ago, was similarly confused by such a proposal.
    For decades, the leaders of the ``Commonwealth'' party--
including those of that party's delegation here today--have 
refused to recognize the reality that the only possible 
``Commonwealth'' option that exists is the one that is the 
island's current territory status.
    H.R. 2499 simply clarifies what the possible status options 
for Puerto Rico are: continuation of the current territory 
status that goes by the name of ``Commonwealth,'' independence, 
nationhood in free association with the United States, and 
statehood.
    What is not included in the legislation, and what is the 
real reason for the ``Commonwealth'' party's persistent 
objections to the bill is this impossible ``Commonwealth'' 
status proposal that is not the current status. Under the 
present--and I have a copy of their platform in 2008, here. In 
this proposal of theirs, Puerto Rico would be permanently 
empowered to nullify Federal laws and court jurisdiction. The 
island would also be empowered to enter into international 
agreements and organizations requiring national sovereignty. 
The proposal also includes a new subsidy for the government of 
the island, coming from the Federal taxpayers, and incentives 
for companies in the States to locate plants in Puerto Rico.
    But wait, there's more. The proposal also further includes 
all current Federal program assistance to individuals, and U.S. 
citizenship would be perpetually guaranteed, as well. A wise 
member of this committee once called this proposal ``the free 
beer and barbeque option.'' Members of the Senate should once 
again join their counterparts in the House in clarifying that 
such proposals are not possible status options.
    In doing so, Mr. Chairman, you and your colleagues would do 
well to join Congresswoman Virginia Foxx who, in a letter to 
myself and Resident Commissioner Pierluisi last week, did just 
that. Congresswoman Foxx clarified that the ``Commonwealth'' 
option contained in her amendment to H.R. 2499--which was 
approved by the full House--is, and I quote, ``the status quo, 
under which Puerto Rico is subject to Federal Territory Clause 
authority.''
    As Congresswoman Foxx further made clear, her amendment's 
intention was not to endorse the legal viability or practical 
possibility of a quote--and I quote again--``a new Commonwealth 
status,'' I end quote, which would grant Puerto Rico greater 
autonomy from Federal authority with greater Federal benefits. 
With your permission, Mr. Chairman, I would like to submit 
Congresswoman Foxx's letter for the record and, in doing so, 
also my entire written statement.
    The Chairman. We're glad to include that in the record.
    Governor Fortuno. Thank you, Mr. Chairman.
    Mr. Chairman, what H.R. 2499 essentially does is authorize 
a process, at the discretion of Puerto Rico's elected 
representatives, that would begin with threshold votes on 
whether to consider status options. This responds to the 
``Commonwealth'' Party argument that the status question should 
not be addressed. Only if a majority of voters no longer favors 
the current status--and Puerto Rico's elected representatives 
agree--would there be a second-stage vote on the full range of 
possible options. If a majority of voters in a threshold 
plebiscite do not want to consider Puerto Rico's status 
options, the issue would be put aside for 8 years.
    If a second-stage vote does take place, the current status 
would stand equally alongside the other possible status 
alternatives that have support in Puerto Rico: free 
association--which is advocated by an increasing number of 
members of the ``Commonwealth'' Party, although not the current 
leadership; independence; and statehood. In terms of measuring 
support for Puerto Rico's possible status choices, H.R. 2499 
could not be any fairer.
    In sum, H.R. 2499 would enable the preferences of Puerto 
Ricans, among the real status alternatives, to finally be 
ascertained. The legislation would not mandate any action in 
response by the Federal Government. If there ever is a majority 
of the vote for a status different from the present one, it is 
then that the Federal officials could determine what response 
is appropriate. An accurate expression of status preferences by 
the people is the necessary first step, though.
    Last month, members of the House took the right step. I 
urge you to do the same. By so doing, you will be effectively 
responding to the people of Puerto Rico's clear mandate for a 
federally sanctioned status choice process. You will also 
fulfill Congress' responsibility to enable a territory that 
lacks democracy at the National Government level to determine 
if it wants one of the options for National Government 
democracy.
    Mr. Chairman, over the course of more than a century, 
millions of your fellow American citizens in the territory of 
Puerto Rico have made countless contributions to the Nation, 
both in peace and wartime. Thousands of our sons and daughters 
have laid down their lives--thousands more proudly serve today, 
and there are a few of them with us today--in defense of 
American democratic values. Yet, we have never been given the 
chance to express our views about our political relationship 
with the Nation in the context of an accurate, fair and 
democratic process sponsored by Congress. This bill will, at 
long last, give us that chance. What would be more right?
    Thank you, again.
    [The prepared statement of Governor Fortuno follows:]

  Prepared Statement of Hon. Luis G. Fortuno, Governor of Puerto Rico
    Thank you, Mr. Chairman . . . and Ranking Member Murkowski . . . 
for the opportunity to appear this morning before you and fellow 
members of this Committee to express my support of H.R. 2499, the 
Puerto Rico Democracy Act of 2009. I especially appreciate the 
opportunity to follow Puerto Rico's sole elected representative in 
Congress, Resident Commissioner Pedro Pierluisi, who was my running 
mate in 2008.
    Today, I appear before you as Governor of Puerto Rico and as 
President of Puerto Rico's statehood party, which includes national 
Republicans like myself as well as Democrats like Resident Commissioner 
Pierluisi.
    In the elections of 2008, voters gave candidates of our party the 
biggest margin of any electoral victory in 44 years. We obtained over 
two-thirds of the seats in each house of the legislature and three-
fifths of the mayorships. The candidates in the ``Commonwealth'' party, 
by contrast, received the lowest percentage of votes for their party in 
history.
    This is particularly relevant because the process proposed by H.R. 
2499 was an issue in the elections. Our party campaigned on a pledge to 
seek congressional sponsorship of a status choice process.in order to 
provide a choice among real status options to be made.directly by 
voters . . . in plebiscites.
    Why does Congress need to act? Because there is a patently obvious 
need for the territory's real options to be clarified. Under the 
present status . . . given Congress' constitutional jurisdiction under 
the Territory Clause . . . Congress can provide the necessary 
clarification. Specifically, previous political status plebiscites 
without federal legislation . . . in the first two instances, at the 
end of the 1960s and the beginning of the 1990s . . . were inconclusive 
because of proposals for an unconstitutional and impossible governing 
arrangement. The most recent plebiscite . . . 12 years ago . . . was 
similarly confused by such a proposal.
    For decades, the leaders of the ``Commonwealth'' party-including 
those of that party's delegation here today--have refused to recognize 
the reality that the only possible ``Commonwealth'' option that exists 
is the one that is the island's current territory status.
    H.R. 2499 simply clarifies what the possible status options for 
Puerto Rico are: continuation of the current territory status that goes 
by the name of ``Commonwealth'', independence, nationhood in free 
association with the United States and statehood.
    What is not included in the legislation.and what is the real reason 
for the ``Commonwealth'' party's persistent objections to the bill . . 
. is this impossible ``Commonwealth'' status proposal that is not the 
current status [holding up copy].
    Under this proposal of theirs, Puerto Rico would be permanently 
empowered to nullify federal laws and court jurisdiction. The island 
would also be empowered to enter into international agreements and 
organizations requiring national sovereignty. The proposal also 
includes a new subsidy for the government of the island, and incentives 
for companies in the States to locate plants in Puerto Rico. But wait, 
there's more. The proposal also further includes all current federal 
program assistance to individuals, and U.S. citizenship would be 
perpetually guaranteed.
    A wise member of this Committee once called this proposal ``the 
free beer and barbeque option.'' Members of the Senate should.once 
again. join their counterparts in the House in clarifying that such 
proposals are not a possible status option.
    In doing so, Mr. Chairman, you and your colleagues would do well to 
join Congresswoman Virginia Foxx . . . who in a letter to myself and 
Resident Commissioner Pierluisi last week did just that. Congresswoman 
Foxx clarified that the ``Commonwealth'' option contained in her 
amendment to H.R. 2499.which was approved by the full House . . . is . 
. . and I quote . . . '' the status quo, under which Puerto Rico is 
subject to federal Territory Clause authority.''
    As Congresswoman Foxx further made clear, her amendment's intention 
was not to endorse the legal viability or practical possibility of . . 
. and I quote once again . . . '' a new Commonwealth status' which 
would grant Puerto Rico greater autonomy from federal authority with 
greater federal benefits.'' With your permission, Mr. Chairman, I would 
like to submit Congresswoman Foxx's letter for the record, along with 
my entire written testimony.
    Mr. Chairman, what H.R. 2499 essentially does is authorize a 
process.at the discretion of Puerto Rico's elected representatives . . 
. that would begin with threshold votes on whether to consider status 
options. This responds to the ``Commonwealth'' Party argument that the 
status question should not be addressed. Only if a majority of voters 
no longer favors the current status . . . and Puerto Rico's elected 
representatives agree. would there be a second-stage vote on the full 
range of possible options. If a majority of voters in a threshold 
plebiscite do not want to consider Puerto Rico's status options, the 
issue would be put aside for eight years.
    If a second-stage vote does take place, the current status would 
stand equally alongside the other possible status alternatives that 
have support in Puerto Rico: free association--which is advocated by an 
increasing number of members of the ``Commonwealth'' Party, although 
not the current leadership; independence; and statehood. In terms of 
measuring support for Puerto Rico's possible status choices, H.R. 2499 
could not be any fairer.
    In sum, H.R. 2499 would enable the preferences of Puerto 
Ricans.among the real status alternatives . . . to finally be 
ascertained. The legislation would not mandate any action in response 
by the federal government. If there ever is a majority of the vote for 
a status different than the present one, it is then that Federal 
officials could determine what response is appropriate. An accurate 
expression of status preferences by the people is the necessary first 
step.
    Last month, members of the House took the right step. I urge you to 
do the same. By so doing, you will be effectively responding to the 
people of Puerto Rico's clear mandate for a federally sanctioned status 
choice process. You will also fulfill Congress' responsibility to 
enable a territory that lacks democracy at the national government 
level to determine if it wants one of the options for national 
government democracy.
    Mr. Chairman, over the course of more than a century, millions of 
your fellow American citizens in the territory of Puerto Rico have made 
countless contributions to the Nation, both in peace and wartime. 
Thousands of our sons and daughters have laid down their lives . . . 
thousands more proudly serve today.in defense of American democratic 
values. Yet, we have never been given the chance to express our views 
about our political relationship with the Nation in the context of an 
accurate, fair and democratic process sponsored by Congress. This bill 
will, at long last, give us that chance. What could be more right?
    Thank you very much.

    The Chairman. Thank you very much, Governor. I appreciate 
your testimony very much.
    Next is the Honorable Hector Ferrer Rios, who is the 
President of the Popular Democratic Party. Thank you for being 
here.

    STATEMENT OF HECTOR J. FERRER RIOS, PRESIDENT, POPULAR 
                        DEMOCRATIC PARTY

    Mr. Rios. Thank you, Mr. Chairman, and good morning ranking 
members and members of the committee. My name is Hector Ferrer, 
I am the President of the Popular Democratic Party of Puerto 
Rico, the Minority Leader in the Puerto Rico House of 
Representatives and a Commonwealth supporter. Along with my 
remarks today, I have submitted, for the record, a written 
testimony.
    I come before you to oppose H.R. 2499, the Puerto Rico 
Statehood Bill. H.R. 2499 is crafted as an unusual and 
unprecedented two-round voting scheme to manufacture a 
predetermined outcome in front of Statehood. Even after some 
amendments included on the House floor, the bill remains 
slanted toward Statehood, and has serious procedural flaws. 
Moreover, this bill is non-binding. This means that this 
Congress is not committed to honor its results.
    This sounds to me like your ``free beer and barbeque'' 
comment 12 years ago, Mr. Chairman, when we defeated Statehood, 
once again, in the 1998 plebiscite, in a rigged process just 
like this one. There is absolutely no pain involved in Congress 
if you're simply hosting a beauty pageant with no tangible 
obligations. Mr. Chairman, the people of Puerto Rico and the 
United States deserve better.
    The core question before this committee today is this: Why 
are we here? Frankly, I'm not quite sure. Puerto Rico is 
undergoing a significant crisis. The University of Puerto Rico 
system has been shut down for almost a month, and Governor 
Fortuno's Administration has just announced that it will remain 
closed until August.
    As unemployment is nearing 20 percent, he has fired well 
over 20,000 public employees without regard to their unions' 
calls for negotiations and compromise, while the private sector 
has lost over 100,000 jobs in the past year and a half.
    Since January 2009, the Governor has added 12 new taxes on 
homes and business, corporate and individual taxes, motor 
vehicles, among others, and all of this in the middle of a 
recession. Puerto Rico's public debt surpasses $60 billion. In 
the first 5 months of this year, more civilians have been 
murdered in Puerto Rico than American and Coalition forces in 
both Iraq and Afghanistan together.
    With all of these pressing matters at hand, the Governor 
and his Party are again playing up the status issue, and 
forcing us to participate, once more, in this 3-ring circus 
that comes to town every couple of years. For what? To discuss 
a non-binding plebiscite? Again, the people of Puerto Rico and 
the United States deserve better.
    In fact, today's leader--legislation of Puerto Rico is 
currently holding hearings on a locally authorized, non-binding 
plebiscite just like this one. If this is happening, why are we 
wasting your time here, today? To that effect, I'm submitting 
for the record Senate bill 1407 and House bill 2497 for the 
committee's consideration. If Congress chooses to enact this 
legislation with a clearly pre-ordained pro-State result in 
mind, it is your responsibility toward the people of Puerto 
Rico and the United States to clearly define and outline the 
Statehood that you are willing to grant Puerto Rico. Tell us if 
you're willing to commit to Statehood on a first vote with a 
simple majority, or a plurality. Tell us if you will allow for 
a State where the Executive, Legislative and Judicial branches, 
schools, business, and every other affair is conducted in 
Spanish.
    Mr. Chairman, your own State of New Mexico, along with 
Louisiana, Oklahoma, and Arizona, were required to adopt 
English for all official business as a prerequisite for 
admission. Will you do that so with Puerto Rico?
    Tell us if, under Statehood, Puerto Rico will still receive 
the Rum Tax Color Over, and tell us how U.S. companies, with 
significant investment and operations in Puerto Rico will be 
treated.
    Tell us if you're willing to admit a State without 
sufficient economic resources to support its own government, 
let alone its share of the Federal budget. Explain if the route 
to Statehood requires first becoming an incorporated territory, 
with the burden of Federal taxes and the end of our Olympic 
Committee. If it's the will of this committee to offer the 
people of Puerto Rico a bid for Statehood, why not propose a 
straight yes or no vote on Statehood?
    As you can tell, there are more questions to be made to 
Congress than answers to be demanded from the people of Puerto 
Rico. As President of the Popular Democratic Party, I believe 
that the most honest and straightforward way of dealing with 
this issue of Puerto Rico's status is providing for the people 
of Puerto Rico to convene in a constitutional convention. This 
much fairer process has been supported by the Popular 
Democratic Party for years, and was actually introduced as a 
Senate bill by Senator Kennedy, Menendez, Burr, and Lott in the 
109th Congress.
    H.R. 2499 is not a process of self-determination. In fact, 
what is needed to move forward is a binding and democratic 
process that leads us toward mutual determination, where both 
the people of Puerto Rico and the United States are committed 
to a fair result. I encourage this committee to rise honorably 
to the occasion, and do right by the people of Puerto Rico.
    Thank you.
    [The prepared statement of Mr. Rios follows:]

    Prepared Statement of Hector J. Ferrer Rios, President, Popular 
                            Democratic Party
    My name is Hector Ferrer Rios, President of the Popular Democratic 
Party and House Minority Leader. I come before the Committee to urge 
you to oppose H.R. 2499, recently approved by the House of 
Representatives. H.R. 2499 simply appears to call for a non-binding 
expression by the Puerto Rican people as to their political status 
preference. Beyond its seemingly innocuous facade, the bill was 
constructed as an unusual and unprecedented two round voting scheme to 
predetermine the outcome by producing an artificial statehood majority.
    Fundamentally, plebiscites and referendums are democratic 
mechanisms for determining by direct vote a people's own destiny. These 
are methods with which to identify, and subsequently implement, the 
people's most favored avenues of politico-constitutional evolution---as 
selected by those peoples themselves. And the common denominator of any 
such democratic exercise is fairness. The legislator's fair and 
equitable treatment of the options is paramount to assuring the 
legitimacy of any such self-determination process.
    Nevertheless, the legislative intention of H.R. 2499 was to sub-
categorize the options to be presented to the people, in order to 
configure the voting system in a way that would assure a particular 
outcome, a predetermined result by imposing its bias and annulling the 
legitimacy of the process.
    That is what H.R. 2499 attempts. In it, the drafters arbitrarily 
separated what they regard a ``territorial and impermanent'' option 
from purportedly ``non-territorial and permanent'' ones. Following that 
rationale, the bill calls for an initial round limited to a yes or no 
vote on the ``current political status'', followed by a second round 
among all other options if the current political status fails to 
achieve 50% of the vote in the first round. Such action renders the 
process patently biased.
    Historical background illustrates what is at play here. Back in 
1993, after a landslide victory in the general elections, the pro-
statehood governor quickly called for a plebiscite expecting his 
personal popularity to translate into a similar win for statehood. The 
governor allowed each of the parties to decide how their status option 
would appear defined on the ballot. To his surprise, Commonwealth won 
with 48.6% of the vote to statehood's 46.5% and independence's 4.4.%.
    Pledging not to let that happen again, governor Rossell" called for 
a new plebiscite in 1998, but this time he drafted the Commonwealth's 
definition himself and in such unpalatable terms that the Commonwealth 
party could not endorse it. To his total dismay, the Commonwealth party 
asked its supporters to vote instead under a ``none of the above'' 
option sanctioned by local courts. Commonwealth status d/b/a ``none of 
the above'' prevailed again with 50.3% of the vote against statehood's 
46.5%, independence's 2.5%. A new option called Free Association got a 
meager 0.3%.
    After the 1998 humiliation, the statehood party went back to the 
drawing board and came up with a scheme that now takes the form of H.R. 
2499. The 1993 plebiscite taught them that statehood can never beat 
Commonwealth in a face to face contest and the 1998 plebiscite showed 
them that the Commonwealth supporters are not easily excluded from the 
process. And so the idea of a two round vote.
    The pro-statehood Resident Commissioner from Puerto Rico reasonably 
thinks that splitting the vote should result in a huge win for 
statehood. That conclusion is supported by history. Take the 1993 
plebiscite results mentioned above. Commonwealth was the people's top 
choice. If that vote had been divided into two rounds, as H.R. 2499 
proposes, Commonwealth's otherwise 48.6% victory would have meant a 
rejection, and the people would have been forced to choose between what 
were, and probably still are, their second and third choices. Based on 
those 1993 numbers, it is reasonable to conclude that statehood, 
although not the people's preferred choice, would achieve an 
overwhelming majority of the votes in the second round.
    The statehood party has already made sure that the ``none of the 
above'' option can no longer foil a statehood majority as it did in 
1998. ``None of the above'' was a judicially mandated option based on 
constitutional grounds regarding the individual's right to vote. But 
the current pro-statehood governor had the opportunity to change the 
Puerto Rico Supreme Court's ideological composition by filling three 
vacancies; and just a year ago, a 4-3 majority, without having a case 
or controversy on this issue before it, quickly reversed the earlier 
ruling requiring this option.
    H.R. 2499 is now the final piece of the statehood party's assault 
on Puerto Rico's right to self-determination. It is crude, unabashed, 
undemocratic gimmickry.
    The two round setup had its genesis in heavily flawed conclusions 
regarding the current Commonwealth status found in a Presidential Task 
Force Report.
    Executive Order 13183 (dated December 23, 2000), as amended by 
Executive Order 13319 (dated December 3, 2003), created a President's 
Task Force on Puerto Rico's Status (the ``Task Force'') to ``report on 
its actions to the President as needed, but no less than once every 2 
years, on progress made in the determination of Puerto Rico's ultimate 
status.'' Pursuant to such directive, the Task Force issued its initial 
report on December 22, 2005, and the first follow up addendum report on 
December 21, 2007 (hereinafter the ``Task Force Reports''). A final 
report is due this coming December 2009.
    Ever since the publication of the initial Task Force Report in 
December 2005, the Popular Democratic Party openly challenged the Task 
Force Reports' main legal conclusions; namely, that despite the 
establishment of Commonwealth status in 1952, Puerto Rico remains to 
this day an unincorporated territory of the United States subject to 
Congress's plenary powers under the Territory Clause of the U.S. 
Constitution and as such can be unilaterally ceded or conveyed to any 
other sovereign country and, moreover, that the U.S. citizenship of the 
people of Puerto Rico is likewise revocable by Congress. For the past 
three and a half years, the PDP has forcefully contended that the 
authors of the Task Force Reports blatantly failed to substantiate 
their obtuse legal conclusions and inexcusably overlooked the robust 
and consistent corpus of U.S. Supreme Court precedent to the contrary.
    During the 2008 Presidential Campaign, President Obama explicitly 
rejected the legal conclusions contained in the Task Force Reports. In 
a letter addressed to then Governor Anibal Acevedo Vila (the 
``President's Letter'') (dated February 12, 2008), President Obama 
challenged head-on the Task Force's irrational proposition that Puerto 
Rico (along with the 4 million Puerto Ricans inhabiting the island) can 
be ceded or transferred to a foreign country at Congress's whim.

          The American citizenship of Puerto Ricans is constitutionally 
        guaranteed for as long as the people of Puerto Rico choose to 
        retain it I reject the assertion in reports submitted by a 
        Presidential Task Force on December 22, 2005 and December 21, 
        2007 that sovereignty over Puerto Rico could be unilaterally 
        transferred by the United States to a foreign country.

    The erroneous legal conclusions put forward by the Task Force, as 
referenced above, are derailing Puerto Rico's self-determination 
process into a profound, unnecessary and unfair state of confusion. 
Such conclusions have now been used to legitimize and recommend a 
highly irregular two-round self-determination process, whereby the 
current Commonwealth option (in light of its alleged territorial 
nature) is put on for ratification or rejection in the first round, 
and, assuming rejection, then statehood and independence face it off in 
a second and definitive last round. This is contrary to the norm in all 
two-round voting processes where electors vote all status options in 
the first round, and then vote again in a face-off between the two most 
voted formulas in the final round.
    As the subsequent sections show, President Obama was right in 
rejecting the legal conclusions rendered by the Task Force Reports 
because they run afoul the most basic values of substantive justice and 
equality under the law; all of which have been at the heart of American 
constitutionalism since the early days of the Republic--as were so 
eloquently echoed in the President's Letter.
A. Congress no longer holds plenary powers over Puerto Rico and 
        consequently cannot unilaterally cede Puerto Rico
    The Task Force Reports embrace the untenable proposition that the 
Federal Government can unilaterally cede Puerto Rico, if it so wishes, 
to any other sovereign (e.g. Venezuela, Cuba or Iran) without the 
consent of the people of Puerto Rico as an exercise of its plenary 
powers over the island under the Territory Clause of the U.S. 
Constitution. Specifically, the authors of the Task Force Reports 
conclude that: ``[t]he Federal Government may relinquish United States 
sovereignty by granting independence or ceding the territory to another 
nation . . . '' Ignoring the canon of legal construction articulated 
through the years by the U.S. Supreme Court to the effect that Puerto 
Rico shed its status as an unincorporated territory with the attainment 
of Commonwealth status in 1952, the drafters of the Task Force Reports 
claim that such event did not change Puerto Rico's relationship with 
the United States. Such posturing, in turn, rests on the perverse 
notion that Congress intentionally deceived the people of Puerto Rico 
when it entered into the compact elevating Puerto Rico's status from an 
unincorporated territory to a Commonwealth, and instead retained 
plenary powers--including the authority to unilaterally cede or even 
sell Puerto Rico to any foreign nation.
    President Obama was right in rebuffing such untenable conclusion. 
Neither the 2005 Task Force nor its 2007 sequel identifies any legal 
authority substantiating a contention so incendiary that flies in the 
face of U.S. Supreme Court jurisprudence (blithely ignored by the 
drafters of the Task Force Reports) that has explicitly recognized that 
the creation of the Commonwealth of Puerto Rico was effected through a 
compact wherein Congress relinquished powers over Puerto Rico making it 
sovereign over matters not ruled by the U.S. Constitution.
    Not surprisingly, the federal courts have forcefully rejected the 
argument that would render Public Law 600 an entirely illusory 
legislative gesture. The U.S. Court of Appeals for the First Circuit 
addressed the issue in one of its first judicial interventions shortly 
after the Commonwealth's creation. Rejecting the contention that Public 
Law 600 was merely another Organic Act, Chief Judge Magruder, writing 
for the First Circuit, concluded that, ``We find no reason to impute to 
the Congress the perpetration of such a monumental hoax.''
    If, as suggested in the Task Force Reports, the compact entered 
into pursuant to Public Law 600 did not transform Puerto Rico's 
political status, then the United States perpetrated a ``monumental 
hoax'' not only on the people of Puerto Rico, but also on the General 
Assembly of the United Nations. Specifically, in 1953 the United States 
advised the United Nations that it would no longer report on Puerto 
Rico as a ``non self-governing territory'' under Article 73(e) of the 
United Nations Charter.''
    In the Cessation Memorandum, the United States formally advised the 
United Nations that the incremental process of the ``vesting of powers 
of government in the Puerto Rican people and their elected 
representatives'' had ``reached its culmination with the establishment 
of the Commonwealth of Puerto Rico and the promulgation of the 
Constitution of this Commonwealth on July 25, 1952.'' The Cessation 
Memorandum explicitly declares that, ``[w]ith the establishment of the 
Commonwealth of Puerto Rico, the people of Puerto Rico have attained a 
full measure of self-government.''
    In describing the ``principle features of the Constitution of the 
Commonwealth,'' the Cessation Memorandum noted that the new 
Constitution, ``as it became effective with the approval of the 
Congress, provides that `[i]ts political power emanates from the people 
and shall be exercised in accordance with their will, within the terms 
of the compact agreed upon between the people of Puerto Rico and the 
United States of America.''
    Mason Sears, the United States Representative to the Committee on 
Information from Non-Self-Governing Territories, explained the legal 
significance under American law of the fact that Puerto Rico's 
Constitution resulted from a compact,

          A most interesting feature of the new constitution is that it 
        was entered into in the nature of a compact between the 
        American and Puerto Rican people. A compact, as you know, is 
        far stronger than a treaty. A treaty usually can be denounced 
        by either side, whereas a compact cannot be denounced by either 
        party unless it has the permission of the other.

    Moreover, Frances Bolton, U.S. Delegate to the United Nations' 
Fourth Committee, made it plain clear that while ``the previous status 
of Puerto Rico was that of a territory subject to the absolute 
authority of the Congress of the United States in all governmental 
matters [ . . . ] the present status of Puerto Rico is that of a people 
with a constitution of their own adoption, stemming from their own 
authority, which only they can alter or amend [ . . . ]''
    The United Nations accepted at face value the representations made 
by the United States. The General Assembly recognized, ``the people of 
the Commonwealth of Puerto Rico, by expressing their will in a free and 
democratic way, have achieved a new constitutional status.'' Resolution 
748, VIII (Nov. 3, 1953). On approving the Cessation Memorandum on 
Puerto Rico, the General Assembly further stated that,

          [I]n the framework of their Constitution and of the compact 
        agreed upon with the United States of America, the people of 
        the Commonwealth of Puerto Rico have been invested with 
        attributes of political sovereignty which clearly identify the 
        status of self-government attained by the Puerto Rican people 
        as that of an autonomous political entity.

    The U.S. Supreme Court has confirmed that view. In Calero Toledo v. 
Pearson Yacht Leasing Co., 416 U.S. 663 (1974), the Supreme Court motu 
proprio addressed the issue of whether Puerto Rico statutes were State 
statutes for purposes of the Three-Judge Court Act (28 U.S.C. 
Sec. 2281). The issue was of great import, for the predominant reason 
behind the law was requiring that issues about the constitutionality of 
State statutes be resolved before a three judge district court panel in 
order to avoid unnecessary interference with the laws of a sovereign 
State of the Union. That ``predominant reason'' did not exist in 
respect of territories because they do not enjoy the attributes of 
sovereignty of States within the U.S. federal structure. For that 
reason, the Supreme Court had already ruled in Stainback v. Mo Hock Ke 
Lok Po, 336 U.S. 368 (1949) that the legislative enactments of the 
Territory of Hawaii were not State statutes for purposes of Judicial 
Code Sec. 266 (predecessor to 28 U.S.C. Sec. 2281). Similarly, the 
First Circuit had arrived at the same conclusion with respect to Puerto 
Rico in Benedicto v. West India & Panama Tel. Co., 256 F.417 (1st Cir. 
1919).

    Stainback and Benedicto, of course, were decided before Puerto Rico 
became a Commonwealth, so the issue had to be examined afresh and the 
opportunity finally arouse in Calero Toledo. As the Calero Toledo Court 
narrates, Puerto Rico's Commonwealth status was preceded by a series of 
Organic Acts,

          Following the Spanish-American War, Puerto Rico was ceded to 
        this country in the Treaty of Paris, 30 Stat. 1754 (1898). A 
        brief interlude of military control was followed by 
        congressional enactment of a series of Organic Acts for the 
        government of the island. Initially these enactments 
        established a local governmental structure with high officials 
        appointed by the President. These Acts also retained veto power 
        in the President and Congress over local legislation.

    The creation of the Commonwealth, as the Court suggests by voice of 
Justice Brennan, followed a materially different procedure,

          By 1950, however, pressures for greater autonomy led to 
        congressional enactment of Pub. L. 600, 64 Stat. 319, which 
        offered the people of Puerto Rico a compact whereby they might 
        establish a government under their own constitution. Puerto 
        Rico accepted the compact, and on July 3, 1952 Congress 
        approved, with minor amendments, a constitution adopted by the 
        Puerto Rican populace [ . . . ] Pursuant to that constitution 
        the Commonwealth now ``elects its Governor and legislature; 
        appoints its judges, all cabinet officials, and lesser 
        officials in the executive branch; sets its own educational 
        policies; determines its own budget; and amends its own civil 
        and criminal code'' (citing Leibowitz, The Applicability of 
        Federal Law to the Commonwealth of Puerto Rico, 56 GEO. L. J. 
        219, 221 (1967)).

    The Calero Toledo Court recognized that the Commonwealth's creation 
effected ``significant changes in Puerto Rico's governmental 
structure.'' It then quoted at length, and with apparent approval, from 
Chief Judge Magruder's observations in Mora v. Mejias, 206 F.2d 377 
(1st Cir. 1953) that ``Puerto Rico has thus not become a State in the 
federal Union like the 48 States, but it would seem to have become a 
State within a common and accepted meaning of the word . It is a 
political entity created by the act and with the consent of the people 
of Puerto Rico and joined in union with the United States of America 
under the terms of the compact.''
    Two years later, in Examining Board v. Flores de Otero, 426 U.S. 
572 (1976), the Supreme Court again examined the juridical nature of 
Puerto Rico's Commonwealth status and held that for purposes of Section 
1983 jurisdiction the island enjoyed the same attributes of sovereignty 
as a State of the Union. The Court found that ``the purpose of Congress 
in the 1950 and 1952 legislation was to accord to Puerto Rico the 
degree of autonomy and independence normally associated with States of 
the Union [ . . . ].'' The Court reasoned, moreover, that through the 
establishment of the Commonwealth, ``Congress relinquished its control 
over the organization of the local affairs of the island and granted 
Puerto Rico a measure of autonomy comparable to that possessed by the 
States.''
    Six years later, in Rodriguez v. Popular Democratic Party, 457 U.S. 
1 (1982), the issue before the Supreme Court was whether a local 
political party could be granted statutorily the power to fill an 
interim vacancy in the Puerto Rican Legislature. Arguing for the PDP, 
former Justice Abe Fortas wrote,

          The Commonwealth of Puerto Rico, as this Court has stated, 
        ``occupies a relationship to the United States that has no 
        parallel in our history''. Califano v. Torres 435 U.S. at 3, 98 
        S.Ct. at 907, fn. 4. That it is an ``autonomous political 
        entity,'' ``in the framework of the compact agreed upon with 
        the United States'' has been recognized by formal action and 
        resolution of the United Nations on the basis of 
        representations of the United States.

    Fortas added,

          There can be no doubt that the Commonwealth of Puerto Rico 
        has ``freedom from control or interference by the Congress in 
        respect of internal government and administration . . . '' Mora 
        v. Mejias, 115 F.Supp. 610 at 612 (D.P.R. 1953) (Three-Judge 
        Court), quoted in Calero-Toledo v. Pearson Yacht Leasing Co., 
        416 U.S. at 674, 94 S.Ct. at 2087. The Compact between the 
        United States and the people of Puerto Rico incorporated the 
        repeal of most of the provisions of the Organic Act of 1917, 
        including repeal of the Bill of Rights contained therein and 
        the provisions for local government. The provisions of the 
        Organic Act that were continued by the Compact were directed to 
        the interrelationships of Puerto Rico and the United States: 
        Affirmation that Puerto Ricans are citizens of the United 
        States; that Puerto Rico is free of United States Internal 
        Revenue laws; that trade between the two shall be free of 
        export duties; and that the rights, privileges and immunities 
        of citizens of the United States shall be respected in Puerto 
        Rico.

    The Court, agreeing with the PDP's position, accorded the same 
deference to the Puerto Rico Legislature that it accords the States, 
``Puerto Rico, like a state, is an autonomous political entity, 
`sovereign over matters not ruled by the Constitution.''' Based on the 
principle that fundamental constitutional rights apply to the people of 
Puerto Rico, the Court concluded that ``it is clear that the voting 
rights of Puerto Rico citizens are constitutionally protected to the 
same extent as those of all other citizens of the United States.'' In 
reaching this conclusion the Court cited approvingly the following 
excerpt from a decision authored by then Circuit Judge Stephen Breyer 
in Cordova & Simonpietri Ins. Agency Inc. v. Chase Manhattan Bank N.A., 
649 F. 2d 36, 39-42 (1st Cir. 1981),

          [In 1952] Puerto Rico's status changed from that of a mere 
        territory to the unique status of Commonwealth. And the federal 
        government's relations with Puerto Rico changed from being 
        bounded merely by the territorial clause, and the rights of the 
        people of Puerto Rico as United States citizens, to being 
        bounded by the United States and Puerto Rico Constitutions, 
        Public Law 600, the Puerto Rican Federal Relations Act and the 
        rights of the people of Puerto Rico as United States citizens.

    Between Flores de Otero (1976) and Rodriguez (1982), the Supreme 
Court delivered a very short per curiam decision that has been 
misinterpreted by anti-Commonwealth sectors in Puerto Rico, by some 
federal courts and by the Task Force. In Harris v. Rosario, 446 U.S. 
651 (1980), the Supreme Court held that Puerto Rico could receive less 
assistance than the States under the Aid to Families with Dependent 
Children Program. In a two paragraph decision, the Court found that 
Congress pursuant to the Territory Clause of the U.S. Constitution 
could treat Puerto Rico differently than the States so long as there is 
a rational basis for its actions.
    The Task Force Report interprets Harris as holding ``that Puerto 
Rico remains fully subject to congressional authority under the 
Territory Clause.'' But that reading confuses what Harris is about and 
ignores that the U.S. Supreme Court has clearly recognized that Puerto 
Rico enjoys full sovereignty over its internal affairs. If the Supreme 
Court said in 1976 that ``Congress relinquished its control over the 
organization of the local affairs of the island and granted Puerto Rico 
a measure of autonomy comparable to that possessed by the States'' and 
then in 1982 that Puerto Rico is ``sovereign over matters not ruled by 
the Constitution'' it is then wrong to interpret Harris in 1980 saying 
that Puerto Rico remains fully subject to congressional authority under 
the Territory Clause. These two notions are antithetical. So either the 
Supreme Court was twice contradicting itself, or Harris is being 
misread. We strongly believe the latter is the case.
    The Supreme Court did not contradict itself. Harris deals with a 
federal assistance program, a legislative area within Congress' 
exclusive purview. It does not deal with the internal affairs of the 
Commonwealth. In ruling that Congress could treat Puerto Rico 
differently than a State for purposes of federal fund allocations, the 
Supreme Court was not suggesting that Congress retained its plenary 
powers over Puerto Rico under the Territory Clause. But there is even 
more to Harris.
    The Supreme Court does say in Harris that Congressional power over 
Puerto Rico arises from the Territory Clause. That is a reflection of 
the Constitution's vintage. Its textual configuration reflects the 
conditions of its time. While Congress enjoys plenary powers pursuant 
to the Territory Clause, the Supreme Court has long recognized that 
Congress can relinquish such authority. It may do so, for instance, by 
admitting a Territory as a State, in which case Congressional power 
over the former Territory is transformed from plenary to limited under 
U.S. Constitution Article 1. While Puerto Rico did not become a State 
on July 25, 1952, Congress did relinquish (as the Supreme Court has 
consistently found) the same powers over Puerto Rico that it 
relinquishes when admitting a Territory as a State of the Union. In the 
case of the Commonwealth of Puerto Rico, while the remaining 
Congressional powers are exercised pursuant to the Territory Clause, 
for lack of a more specific source of constitutional authority, those 
powers are no longer plenary.
    The courts and the U.S. Justice Department before 1990 have long 
recognized that the territorial power, like other federal powers, 
demands flexibility on the part of Congress and hesitation on the part 
of those who like the authors of the Task Force Reports would confine 
the exercise of those powers to rigid or arbitrary categories. In 1963 
the U.S. Justice Department saw this very clearly, and quoted a 
memorandum written by future Justice Felix Frankfurter in 1914 when he 
was a law officer in the U.S. Department of War:

          The form of the relationship between the United States and 
        [an] unincorporated territory is solely a problem of 
        statesmanship. History suggests a great diversity of 
        relationships between a central government and [a] dependent 
        territory. The present day shows a great variety in actual 
        operation. One of the great demands upon creative statesmanship 
        is to help evolve new kinds of relationship[s] so as to combine 
        the advantages of local self-government with those of a 
        confederated union. Luckily, our Constitution has left this 
        field of invention open. The decisions in the Insular cases 
        mean this, if they mean anything; that there is nothing in the 
        Constitution to hamper the responsibility of Congress in 
        working out, step by step, forms of government for our Insular 
        possessions responsive to the largest needs and capacities of 
        their inhabitants, and ascertained by the best wisdom of 
        Congress.

    Eight years later, the Office of Legal Counsel, under then-
Assistant Attorney General William H. Rehnquist, expounded on 
Frankfurter's functionality argument:

          [T]he Constitution does not inflexibly determine the 
        incidents of territorial status, i.e., that Congress must 
        necessarily have the unlimited and plenary power to legislate 
        over it. Rather, Congress can gradually relinquish those powers 
        and give what was once a Territory an ever-increasing measure 
        of self-government. Such legislation could create vested rights 
        of a political nature, hence it would bind future Congresses 
        and cannot be ``taken backward'' unless by mutual agreement.
          That is precisely what Flores de Otero holds with respect to 
        Puerto Rico.

    A thorough reading of Harris, moreover, reveals that Congress' 
relinquishment of powers over Puerto Rico went beyond matters of 
internal governance. Even with regards to the allocation of federal 
funds, the Supreme Court makes clear in Harris that Congress cannot 
exercise unrestricted powers over Puerto Rico. It can only treat Puerto 
Rico differently to the extent there is a rational basis for doing so. 
If Congress had plenary powers over Puerto Rico, it would not need to 
have a rational basis to discriminate.
    The Task Force Reports' erroneous reading of Harris constitutes 
their most fatal flaw. It leads their authors to make the colossal 
mistake of asserting that, ``[a]s long as Puerto Rico remains a 
territory of the United States, Congress may not impair the 
constitutional authority of later Congresses to alter the political 
powers of the government of Puerto Rico by entering into a covenant or 
compact with Puerto Rico or its residents.'' In the same way that a 
future Congress cannot de-admit Alaska, Hawaii or Texas, or revoke the 
independent status of the Philippines, it cannot reclaim powers 
relinquished to the people of Puerto Rico.
    The federal circuit courts of appeals have also recognized that 
Puerto Rico is no longer merely an unincorporated territory. See e.g. 
United States of America v. Marco Laboy-Torres, 553 F. 3d 715, 721 (3rd 
Cir. 2009) (``Puerto Rico possesses `a measure of autonomy comparable 
to that possessed by the States.'''); Emma Rodriguez v. Puerto Rico 
Federal Affairs Administration 435 F. 3d 378, 379-80 (DC Cir. 2006) 
(``Through popular referendum, the people of Puerto Rico approved 
Public Law 600's proposed allocation of power--supreme national power 
to the U.S. Congress and full local control to the Puerto Rican 
government . . . and then adopted a . . . constitution.''); Romero v. 
United States, 38 F. 3d 1204 (Fed. Cir. 1994) (``Congress approved the 
proposed Constitution of the Commonwealth of Puerto Rico, which 
thenceforth changed Puerto Rico's status from that of an unincorporated 
territory to the unique one of Commonwealth.''); United States v. 
Quinones, 758 F.2d 40 (1st Cir. 1985) (``The authority of the federal 
government emanated thereafter from the compact itself. Under the 
compact between the people of Puerto Rico and the United States, 
Congress cannot amend the Puerto Rico Constitution unilaterally, and 
the government of Puerto Rico is no longer a federal government agency 
exercising delegated power.'').
    There is scattered case law asserting that Puerto Rico still is 
subject to the plenary powers of Congress under the Territory Clause. 
In U.S. v. S nchez, 992 F.2d 1143, 1151-53 (11th Cir. 1993) the 
Eleventh Circuit disagreed with consistent First Circuit case law and 
held that Puerto Rico is not a separate sovereign for purposes of the 
dual sovereignty exception to the Double Jeopardy Clause. That patently 
wrong view is supported by Judge Torruella out of the First Circuit, 
who espoused it in his dissident opinion in United States v. Lopez 
Andino, 831 F.2d 1164 (1st Cir.1987) and then slipped a line to that 
effect writing for the majority in Davila-Perez v. Lockheed Martin 
Corp., 202 F.2d 464, 468 (1st Cir. 2000) (holding that Puerto Rico is a 
territory under the Defense Base Act). All of these cases rely on the 
same erroneous interpretation of Harris v. Rosario. These cases have 
been wrongly decided and must be discarded.
    Both the constitutional history of the relationship between the 
United States and Puerto Rico and the relevant Supreme Court cases 
confirm that Puerto Rico's Commonwealth status is predicated upon a 
binding compact, created through the mutual consent of the sovereign 
parties and revocable, likewise, only by the mutual consent of such 
parties.
    The Task Force Reports' blatantly outrageous conclusion that the 
United States can unilaterally cede the Commonwealth of Puerto Rico, 
without the consent of its people, to any foreign country of its 
choosing is not only superficial and highly un-American but also 
without any legal merit.
B. The U.S. Citizenship of the People of Puerto Rico
    The drafters of the Task Force Reports also adhere to the unfounded 
notion that Congress can rescind the U.S. citizenship of the 4 million 
Puerto Ricans born in the island. The Task Force Reports adamantly 
suggest that ``[i]ndividuals born in Puerto Rico are citizens of the 
United States by statute (rather than by being born or naturalized in 
the United States),'' and that as such ``if Puerto Rico were to become 
an independent sovereign nation, those who chose to become citizens of 
it or had U.S. citizenship only by statute would cease to be citizens 
of the United States, unless a different rule were prescribed by 
legislation or treaty [ . . . ].''
    It is a well-settled principle of federal law that the citizenship 
rights of people born in Puerto Rico are protected by the 
constitutional guarantees of due process and equal protection of the 
laws emanating from the U.S. Constitution.
    The history of the U.S. citizenship of the Puerto Rican people 
begins with the 1899 Treaty of Paris, which provided that, ``[t]he 
civil rights and political status of the native inhabitants of the 
territories hereby ceded to the United States shall be determined by 
Congress.'' The Foraker Act, enacted on April 12, 1900, put an end to 
military rule and established a civil government in the island. But it 
was not until the enactment of the 1917 Jones Act that Puerto Ricans 
were granted U.S. citizenship. The 1940 Nationality Act, moreover, 
defined ``United States'' as ``the continental United States, Alaska, 
Hawaii, Puerto Rico and the Virgin Islands of the United States,'' and 
determined that the people who were born ``in the United States'' were 
citizens at birth. The 1952 Immigration and Nationality Act, from which 
most Puerto Ricans today trace their U.S. citizenship, tracked the 
language of the 1940 statute.
    The Citizenship Clause of the Fourteenth Amendment states, ``All 
persons born or naturalized in the United States, and subject to the 
jurisdiction thereof, are citizens of the United States and of the 
State wherein they reside.'' By its terms, the text of the Fourteenth 
Amendment extends American citizenship to persons born or naturalized 
``in the United States.'' The Commonwealth of Puerto Rico is certainly 
``in the United States,'' as specifically acknowledged in the 
Immigration and Nationality Act and elsewhere. Thus, the people of 
Puerto Rico clearly qualify as ``constitutional'' or ``Fourteenth 
Amendment'' citizens.
    The Supreme Court has interpreted the Fourteenth Amendment as 
granting irrevocable constitutional citizenship to those persons born 
within a jurisdiction such as Puerto Rico. In the Slaughter-House 
Cases, 83 U.S. (16 Wall.) 36 (1872), the Supreme Court directly 
rejected the claim that only citizens of a State are United States 
citizens under the Fourteenth Amendment. The Court found inter alia 
that ``[ . . . ] persons may be citizens of the United States without 
regard to their citizenship of a particular State, and . by making all 
persons born within the United States and subject to its jurisdiction 
citizens of the United States.''
    In light of the Slaughter-House Cases and the Supreme Court's 
common-law interpretation of the Citizenship Clause, it is clear that 
persons born ``within the United States''--such as the people of Puerto 
Rico--are constitutional U.S. citizens. In Afroyim v. Rusk, 387 U.S. 
253, 262 (1967), the Supreme Court explained that Congress cannot 
revoke Fourteenth Amendment citizenship,

          [The Fourteenth Amendment] provides its own constitutional 
        rule in language calculated completely to control the status of 
        citizenship: `All persons born or naturalized in the United 
        States . . .  are citizens of the United States . . . ' There 
        is no indication in these words of a fleeting citizenship, good 
        at the moment it is acquired but subject to destruction by the 
        Government at any time. Rather the Amendment can most 
        reasonably be read as defining a citizenship which a citizen 
        keeps unless he voluntary relinquishes it.

    Thus, Afroyim makes clear that Congress may not rescind or revoke 
the U.S. citizenship of people born in Puerto Rico. The Task Force 
Reports' contrary conclusion is patently incorrect. The Supreme Court 
has only recognized one revocable variant of U.S. Citizenship. Both the 
1940 Nationality Act and 1952 Immigration and Nationality Act, as well 
as subsequent federal statutes, contain provisions regarding persons 
born outside the United States and its outlying possessions of parents 
one of whom is a citizen of the United States. They are regarded as 
U.S. Citizens, but if they fail to reside in the United States or its 
outlying possessions for a prescribed period or periods of time between 
given ages, they automatically, by statute, lose that citizenship.
    Quite clearly, the people of Puerto Rico do not fall under this 
latter category. Puerto Ricans are born in the United States for 
purposes of the Fourteenth Amendment. Their citizenship, thus, is 
irrevocable.
    Rather than designing a process whereby all three options--namely 
commonwealth, statehood and independence--are voted on side-by-side, 
H.R. 2499, in accordance with the Task Force Report, adopted a rigged 
two-step process designed to kill the commonwealth option in the first 
round of voting. However, H.R. 2499 was amended before its 
consideration by the House of Representatives in the second round and 
the commonwealth option was included. Hence, the initial round is 
superfluous, unnecessary and wasteful. This committee must recommend 
its elimination. But the second round, as an only round, would still 
have problems. In a study conducted in 1985 at the request of the late 
Senator Kennedy, the Library of Congress examined the statehood 
processes of all the territories and identified as one of the 
traditional requirements for statehood that a majority of the 
electorate wish it. The four option plebiscite in H.R. 2499 is likely 
to produce only a plurality for the prevailing option. If the statehood 
option were to obtain that plurality in a ``federally sanctioned 
process'', you will have to deal with the unprecedented situation of 
admitting a new state against the will of the majority of its 
population.
    An obvious solution is to require a majority vote for any change of 
status. Since one generation of voters would be deciding on behalf of 
all subsequent generations and simple majorities may result from purely 
temporary sentiments, you should consider whether requiring a 
supermajority of votes is more prudent. The way to obtain a majority 
vote in this situation is to hold a runoff election between the two 
most voted options.
    Another defect of this bill is that it presents statehood as an 
option without having conducted a feasibility study. The Library of 
Congress' 1985 analysis reveals that one of the traditional 
requirements for statehood is ``that the proposed new State has 
sufficient population and resources to support State government and at 
the same time carry out its share of the cost of the Federal 
Government.'' The Congressional Budget Office must conduct such an 
analysis before the people vote. It is unfair to all parties to do it 
after the votes are cast.
    The other major defect of this bill is that it contains nothing in 
terms of implementation of the results. As indicated earlier, if the 
Senate sanctions this process it will become morally bound to respect 
its results. Failing to provide for an implementation process will only 
lead to chaos. We already know how the statehood party intends to force 
statehood down the Senate's throat. But what if Commonwealth prevails 
and we wish to propose some enhancements to its current structure?
    The bill should address this issue. It should provide for the 
people of Puerto Rico to convene in a constitutional convention.
    As contended above, the second ballot prescribed by H.R.2499 should 
allow the voters the option of continuing and enhancing Puerto Rico's 
Commonwealth status. Thus, H.R. 2499's voting process has to recognize 
the voting rights of Puerto Rico's voters to choose within that second 
vote the enhancing of the Commonwealth.
     During his campaign, President Obama made a commitment that his 
Administration would openly engage the people of Puerto Rico in 
engineering a ``genuine and transparent process of self-determination 
that will be true to the best traditions of democracy.'' He said:

          As President, I will actively engage Congress and the Puerto 
        Rican people in promoting this deliberative, open and unbiased 
        process, that may include a constitutional convention or a 
        plebiscite, and my Administration will adhere to a policy of 
        strict neutrality on Puerto Rico status matters. My 
        Administration will recognize all valid options to resolve the 
        question of Puerto Rico's status, including commonwealth, 
        statehood, and independence.

    As President of the Popular Democratic Party, I encourage Congress 
to insist upon a real self-determination mechanism that will not force 
statehood upon the people of Puerto Rico, and instead to support a 
process that will provide productive and democratic options. H.R. 2499 
still does not do that.
    Moreover, the results of the proposed plebiscite in this bill will 
make sense only if Congress legitimizes it, by amending the bill and 
clearly ratifying the results as ``federally sanctioned''. If not, the 
process will be a beauty contest.
    My party and I believe that the true way of dealing with the status 
issue of Puerto Rico is, as stated before, providing for the people of 
Puerto Rico to convene in a Constitutional Convention. It will allow a 
true democratic and self determination process with the participation 
and representation of all the political sectors. HR 2499 is not a true 
democratic and self determination process. Thank you.

    The Chairman. Thank you very much for your testimony.
    Next, Senator Berrios Martinez, we're very glad to welcome 
you here as the President of the Puerto Rican Independence 
Party. Please, go right ahead.

 STATEMENT OF RUBEN ANGEL BERRIOS MARTINEZ, PRESIDENT, PUERTO 
                    RICAN INDEPENDENCE PARTY

    Mr. Berrios Martinez. Thank you.
    Mr. Chairman and members of the committee, the people of 
Puerto Rico have an inalienable right to self-determination and 
independence. We are now in the 21st century, and yet Puerto 
Rico is still colony of the United States, or as you prefer to 
call it, an unincorporated territory. It is up the people of 
Puerto Rico to decide how and when we should exercise our right 
of self-determination.
    But the United States has the legal and moral obligation to 
respect self-determination which is, under your Constitution, 
part of the supreme law of the land.
    Congress has repeatedly refused to facilitate a process for 
Puerto Rico to exercise its right to self-determination. 
Moreover, Congressional inaction forces us to live under a 
colonial straitjacket which has pushed Puerto Rico to economic, 
social, and moral bankruptcy which you have seen described here 
today. Right now, back home, our people are demonstrating their 
frustration, despair, and indignation, including a strike in 
the University of Puerto Rico where the students are 
mercilessly tried at this moment as if they were criminals. 
That is the shameful reality of the territory after 112 years 
under U.S. sovereignty.
    The U.S. House of Representatives responds with H.R. 2499, 
which is now before you. Cynically entitled ``The Puerto Rican 
Democracy Act,'' the bill purports to advance the principle of 
self-determination, yet it proposes the continuation of the 
colonial status of unincorporated territory--not once, but 
twice--as an alternative to the problem of territorial 
subordination, even against the original purpose of its 
sponsors. It adds insult to injury.
    Of course, it could have been worse. Instead of, or in 
addition to the present territorial relation, someone might 
have thought of including, some modified form of commonwealth 
along the lines of what Senator Bingaman has characterized in 
the past, as has already been mentioned, ``free beer and 
barbecue'' offer.
    Colonial rule, consented or not, constitutes a denial of 
the elementary principle of democracy which requires 
participation of the governed in determining the laws under 
which they live. A democratic colony is a contradiction in 
terms. Slavery or apartheid would not have been less abominable 
had they enjoyed popular support, because it would have been 
presumed to be the consequence of manipulation, intimidation, 
and deception. Likewise, colonialism with consent is, by 
definition, only apparent, for it is the product of collective 
coercion.
    The territorial status of Puerto Rico still stands because 
such has been the will of the United States. For many years you 
have shunned and criminalized independence. Now you cringe at 
the mere thought of a Statehood petition, because granting 
statehood to a Latin American and Caribbean nation, like Puerto 
Rico, is incompatible with your national interests. Therein 
lies the reason behind the contradictory nature of H.R. 2499. 
The United States is not, and does not aspire to be, a 
multinational state; multicultural, maybe. Multinational, 
never.
    Those of us in Puerto Rico who respect ourselves and 
believe in democracy and self-determination repudiate this hoax 
that perpetuates colonialism. We will denounce it in Puerto 
Rico and before the international community.
    What should Congress do, then? It should simply declare its 
intention to put an end to colonial rule in Puerto Rico by 
disposing of the territory, and commit itself to receive and 
act upon a proposal for decolonization formulated by the people 
of Puerto Rico through a procedural mechanism of its choice, 
among alternatives recognized by international law. That is, 
independence, integration, and free association.
    Puerto Ricans--and I am sure I speak here for the great 
majority of our people--are sick and tired of the condescending 
and cavalier attitude of the U.S. Government. Enough is enough.
    More than one hundred years of colonialism have not broken 
our national spirit. Regardless of your decision concerning 
H.R. 2499, you will never admit Puerto Rico as a State because 
we are a separate nation. Precisely because we are a nation, in 
the end, freedom for Puerto Rico will prevail and we will be 
masters of our own destiny.
    Thank you very much.
    [The prepared statement of Mr. Berrios Martinez follows:]

 Prepared Statement of Ruben Berrios Martinez, President, Puerto Rican 
                           Independence Party
    Mr. Chairman and Members of the Committee:
    The people of Puerto Rico have an inalienable right to self 
determination and independence. We are now in the 21st century, and yet 
Puerto Rico is still colony of the United States, or as you prefer to 
call it, an unincorporated territory. It is up to our people to decide 
how and when we should exercise our right of self determination. But 
the United States has the legal and moral obligation to respect self 
determination which is, under your Constitution, part of the supreme 
law of the land.
    Congress has repeatedly refused to facilitate a process for the 
exercise of the right to self determination. Moreover, Congressional 
inaction forces us to live under a colonial straitjacket which has 
pushed Puerto Rico to economic, social and moral bankruptcy. These are 
not just words. Right now, in Puerto Rico our people are in the 
streets, expressing their frustration, despair and indignation. That is 
the shameful reality of the territory after 112 years under U.S. 
sovereignty.
    And the U.S. House of Representatives responds with H.R. 2499, 
which is now before you. Cynically entitled the Puerto Rico Democracy 
Act, the bill purports to advance the principle of self determination. 
Yet, it proposes the continuation of the colonial status of 
unincorporated territory--not once but twice--as an alternative to the 
problem of territorial subordination, even against the original purpose 
of the proponents of the bill.
    H.R. 2499 adds insult to injury.
    Of course, it could have been worse. Instead of including the 
present territorial relation, someone might have thought of including, 
instead of or in addition to, some cosmetically modified form of 
commonwealth along the lines of what Senator Bingaman has characterized 
in the past as ``free beer and barbecue''.
    Colonial rule, consented or not, constitutes a denial of the 
elementary principle of democracy which requires participation of the 
governed in determining the laws under which they live. There is no 
such thing as a democratic colony. It is a contradiction in terms, at 
best, a gilded cage. Slavery or apartheid would not have been less 
abominable had they enjoyed popular support, because it would have been 
presumed to be the consequence of manipulation, intimidation and 
deception. Likewise consent to colonialism is by definition only 
apparent, for it is the product of collective coercion.
    The territorial status of Puerto Rico still stands simply because 
such has been the will of the United States. For many years you have 
shunned and criminalized independence. Now you cringe at the mere 
thought of a petition for statehood because granting statehood to a 
Latin American and Caribbean nation like Puerto Rico is incompatible 
with your national interests. Therein lies the reason behind the 
contradictory nature of H.R. 2499. The United States is not, and does 
not aspire to be, a multinational state; multicultural maybe, 
multinational never.
    Those of us in Puerto Rico who respect ourselves and believe in 
democracy and self-determination repudiate this fraudulent maneuver 
designed to perpetuate colonialism and allow Congress to avoid facing 
its decolonizing obligation. We will denounce this hoax in Puerto Rico 
and before the international community.
    What should Congress do? It should simply declare its intention to 
put an end to colonial rule in Puerto Rico by disposing of the 
territory, and commit itself to receive and act upon a proposal for 
decolonization formulated by the people of Puerto Rico through a 
procedural mechanism of its choice, among alternatives recognized by 
international law.
    Puerto Ricans--and I am sure I speak for the great majority of our 
people--are sick and tired of the condescending and cavalier attitude 
of the U.S. government so crudely reflected in H.R. 2499. Enough is 
enough.
    More than one hundred years of colonialism have not broken our 
national spirit nor diminished our profound sense of identity as a 
Latin American and Caribbean nation. Regardless of your decision 
concerning H.R. 2499, you will never admit Puerto Rico as a state 
because we are a separate nation. And precisely because we are a 
separate nation, in the end, freedom for Puerto Rico will prevail and 
we will be masters of our own destiny.

    The Chairman. Thank you very much.
    Thank you, all, for your testimony.
    Let me start with 5 minutes of questions, and then defer to 
my colleagues, here, for their questions.
    Governor Fortuno, H.R. 2499 was significantly altered when 
an amendment was adopted adding continuation of the present 
Commonwealth relationship as a fourth option in the second 
round of voting. Given the addition of Commonwealth to this 
second vote, wouldn't it make more sense to just eliminate the 
first vote? What purpose does the first vote now serve?
    Governor Fortuno. Mr. Chairman, you bring an excellent 
point and actually the intent really was to understand whether 
the people of Puerto Rico desired to address this issue now, or 
not. That was the intent of the first vote. If the second round 
is going to include the 3 constitutionally viable alternatives, 
plus the current territorial status option then, indeed, 
perhaps it will make sense to have just one vote amongst--with 
the 4 alternatives: 3 that are permanent in nature, and one 
that is, really, the current territorial status and will not 
solve the issue.
    I do have to say that I understand what Mr. Berrios is 
saying, on behalf of the Independence Party, because, you know, 
whether the problem could be part of the solution is a big 
question. If we want to solve this once and for all, it should 
be the 3 constitutionally viable options. But, if we simply 
want to poll how the people of Puerto Rico feel about this, 
then the 4 options should be there, and there should be only 
one vote.
    The Chairman. Let me ask one other question, Governor. In 
your testimony, you say the U.S. Congress needs to act, quote, 
``Because there is a patently obvious need for the Territory's 
real options to be clarified.'' H.R. 2499 goes beyond defining 
the options, however, by authorizing these 2 rounds of voting. 
Wouldn't this objective of defining the options be achieved 
more easily by a simple sense of the Congress Resolution that 
would identify the options available under U.S. law, and then 
leave the mechanics of the process to the Government of Puerto 
Rico?
    Governor Fortuno. Let me first tell you that, as Governor 
of 4 million American citizens residing in Puerto Rico, what I 
pledged to do was to try to get Congress to actually sponsor a 
process--a balanced and fair process--so that the voters would 
be guaranteed that they had a fair process. However, if that 
were not possible, certainly a clarification of what the 
options are is needed. I'll tell you why.
    We all know what Statehood means, and there are 50 
successful examples of that. We all know what independence 
means, and we all know what the present territorial status 
means. But then, there's a fourth option that, I believe, also 
has to be clarified, and that is the free association option. 
If I may, I have some documents to introduce into the record.
    Free association actually started being discussed openly in 
1998 when the Governing Board of the Commonwealth Party 
approved a definition--a definition that I will introduce for 
the record, with an English translation. That definition, 1998 
definition, is included in the PDP Training Manual that they 
put out in September--on September 1, 2009. Essentially, this 
manual states very clearly that the 1998 definition that I just 
mentioned earlier is the, and I quote, ``Institutional 
definition of the Party.'' It relates to what they have told 
the voters in Puerto Rico that's doable. Essentially, they had 
said that we could retain American citizenship, we would retain 
all of the Federal funding that we're getting today and, 
actually, then some more. We will pay no Federal taxes; that we 
could have veto power over the legislation that you approve 
here; that we could even pick and choose which wars we like or 
we don't like, and that we could even decide when there is 
Federal jurisdiction at the court level on different issues. We 
all know that's not doable, but that's what they've sold to the 
people as late as September 1, 2009, in their Manual.
    This year, on January 18, 2010, they're converting more, 
again, actually approve a resolution, and I have a full 
resolution, and a section in English--English translation that 
is relevant to this issue--where they state again, and they 
refer to the Manual as a definition they will be using. So, 
again, they're using the 1998 definition, and I think it's fair 
for the 4 million American citizens residing in Puerto Rico to 
understand, if that deal is doable, you may have 50 requests 
for the same deal, but that will be your problem. But, we all 
need to know whether that's doable or not doable.
    The Chairman. My 5 minutes is up.
    Senator Murkowski.
    Senator Murkowski. Thank you, Mr. Chairman.
    As I mentioned in my opening remarks, the issue with Alaska 
Statehood is somewhat different than where we are, currently, 
with Puerto Rico. At the time that Alaska petitioned Congress 
for Statehood, it did so backed by a referendum that showed 
that--there was an overwhelming number of Alaskans that were in 
support, it was about a 2 to 1 ratio on the issue. Given the 
results that we've seen in the last several plebiscites, 
there's clearly not a majority that's represented in support of 
any one option, much less a supermajority.
    So, the question I have to each one of you this morning is, 
given that the population, obviously, is conflicted on this, 
what do you believe the Federal role should be at that point in 
time?
    Governor, I heard you to say that it's important for us to 
clarify the status of the options. Mr. Ferrer Rios, you 
suggested that you're not quite sure what role the Congress 
has. But it's important, I think, for us to understand what 
that role appropriately should be. So, if I could ask each one 
of you to clarify what you believe the Federal role on this 
issue should be at this point.
    Mr. Berrios Martinez.
    Mr. Berrios Martinez. I think it was very clear about the 
role of the U.S. It has an obligation to de-colonize Puerto 
Rico. Therefore, the only real option should be to proclaim to 
the world----
    Senator Murkowski. Should we do that when we're not quite 
certain what the people of Puerto Rico wish?
    Mr. Berrios Martinez. No, no. Wait a minute. It's clear, in 
my statement, what you should do. What you should say is you--
have the obligation to de-colonize Puerto Rico, to dispose of 
the territory, because free determination means that.
    Now, how and when we should freely determine what option we 
shall use, that's up to us in Puerto Rico. That's not up to 
Congress. So, I'm proposing that Congress merely states its 
decolonizing obligation under international law, which is part 
of the law of this land, of the United States, and then tell 
the Puerto Rican people, ``We are willing to receive your 
petition, under the conditions and through the mechanisms you 
choose in order to make that petition.'' We, the Puerto Rican 
people, then--I will propose a constitutional assembly among 
alternatives recognized by international law, that is, free 
association, integration, or independence. Other people, like 
Governor Fortuno, will propose a plebiscite between those 3 
alternatives. That's what I'm telling you. Your only obligation 
is to fulfill your obligation to decolonize, announcing to the 
world that you have a duty to decolonize Puerto Rico and that 
you are willing to receive the petition, and then you shall 
speak. As for independence, you have nothing to speak about, 
because we have an inalienable right--if we petition for 
independence, there's no option. We are independent.
    Senator Murkowski. Let's go on to the others, here, because 
I have limited time. If I can get responses from Mr. Berrios--
--
    Mr. Rios. Yes, Madam Senator.
    The people of Puerto Rico knows what Commonwealth is. We've 
been living in Commonwealth for the past 60 years. An option 
that was validated by the U.S. Government, here in Congress, 
and the United Nations. What the people of Puerto Rico don't 
know is Statehood. That's why, in my remarks, I urge Congress 
and this Senate to explain to the people of Puerto Rico the 
consequences of Statehood for them. Because we don't know what 
Statehood is. What we have to engage in order to become a 
State. I think the people of Puerto Rico deserve to know, 
because Mr.--Governor Fortuno's Party say that Statehood can be 
in Spanish. That Statehood can be with our Olympic team, and 
all those--all those may be simple things for this committee, 
Spanish is really important for Puerto Rico. Our Olympic team 
is part of our culture, big things for our people.
    So, the right thing for--to do for--of the Senate is to 
explain, outline, and define what Statehood means, and the 
consequences for the people of Puerto Rico.
    Senator Murkowski. Governor.
    Governor Fortuno. Yes, and I thank you for the question.
    I would respectfully pose to you that if the ``free beer 
and barbeque'' option had been one of the options in Alaska, 
you would not have gotten a 2 to 1 margin. The issue, here, is 
that we need to understand what the options are. I think people 
know what Statehood means in Puerto Rico. Actually, more than 
half of Puerto Rican-Americans have moved to the mainland, so 
they clearly understand what it means. But, we need to 
understand what all the options are.
    There are 4 options. There is the present territorial 
status----
    Senator Murkowski. Do you believe there's only 4, or are 
there more?
    Governor Fortuno. There are 4 options. I mean, there is the 
present territorial status, which will not solve this issue. 
You will be seeing us coming back over and over again for 
decades. Then there are 3 options that will solve this once and 
for all: independence, Statehood, and free association which 
has been, historically, the position--at least since 1998 until 
January of this year--the position of the Commonwealth Party. I 
understand that they may be backtracking on that, but that has 
been, historically, their position and the people need to 
understand what it means.
    At the very least, if I may say so, on behalf of the 4 
million American citizens residing in Puerto Rico, we would ask 
Congress to clearly define what the options are. We may have a 
process, locally, if that's what it takes at the end of the 
day, but our--the American citizens residing in Puerto Rico--
deserve to know what the options are.
    If I may, I want to end with this. The Founding Fathers 
never intended for territorial status to last 112 years. I'm 
sure they never did. We need to end this once and for all. It 
doesn't help anyone in the process. Actually, if at the end of 
the day you could clarify those options for us, I'm sure we 
could agree on how to address them. I pose that the majority of 
people want the voters to decide that--that's the American way, 
that's the way things are done in America. You vote, and you 
vote up or down what do you want to do. But you must understand 
what the alternatives are.
    Senator Murkowski. Thank you, Mr. Chairman.
    The Chairman. Senator Menendez.
    Senator Menendez. Mr. Chairman, this is a very serious and 
complicated issue. I hope the chair--since you've decided to 
hold this hearing--is going to give adequate time for questions 
beyond the 5 minutes, I have many. Since I didn't make an 
opening statement and this is an issue that I have followed for 
some time, I want to preface it with a statement.
    That is, first and foremost, I appreciate the distinguished 
panel we have before us. I've had the pleasure of interacting 
with all of them at one time or another. I appreciate the 
Resident Commissioner and the work he's doing on behalf of the 
people of Puerto Rico and I have worked with him on healthcare 
and other critical issues for the economy of Puerto Rico, and 
probably have been their strongest advocate here in the U.S. 
Senate.
    Puerto Ricans have given a great deal to our Nation, 
through their contributions to our economy, and to the Armed 
Forces of the United States. I'm reminded of the 65th Infantry 
Regiment, an all-Puerto Rican Division, ``Los Borinqueneeros,'' 
who actually were among the most highly decorated in the 
military history of the United States. So, they have worn the 
uniform and they have died for this Nation. They deserve, as 
such, a process toward self--true self-determination--that is 
fair and balanced.
    That has been my position for 18 years in the U.S. 
Congress. I have always said, when it comes to Puerto Rico, we 
must have an unstacked, and unbiased process that allows the 
people of Puerto Rico to determine their own future. I believe 
that the issue is not whether you support Statehood, 
independence or Commonwealth, the issue is creating a process 
that is fair. The bottom line is that any rigged process 
creates a false outcome, and the people of Puerto Rico deserve 
a fair and transparent process with an outcome that can, 
ultimately, be supported.
    I, for one, if we have a fair and balanced process, one 
that is not rigged, am happy to state--as I have stated for 
over 18 years, and not every member of the Congress that I have 
heard who supposedly ``supports'' the idea of a plebiscite is, 
then, willing to support the outcome of a plebiscite. A fair, 
balanced, and unbiased plebiscite, I for one, am ready to 
support the position of the people of Puerto Rico. Whether that 
be Statehood, continuation of the Commonwealth, or 
independence. I would love to challenge my colleagues to make 
those statements, as well.
    For many people, the idea of a plebiscite or a referendum 
by the people sounds like a good idea. Why not let the people 
vote on the option to determine their future? But I truly 
wonder if the people of Puerto Rico need to be instructed by 
Congress how to determine, for themselves, the best approach? I 
think any process needs to have a clear and complete comparison 
between the 3 options, and I really wonder whether or not this 
particular way that this has been structured, if you want to 
say, ``Yes, the Congress should have--be the instigator of a 
process,'' whether or not the two-step process is one that 
actually meets the test of not being stacked in a specific way.
    I think that the issue of the status of Puerto Rico not 
only affects the lives of all Puerto Ricans, it affects their 
economy, and their language, and their customs, and their daily 
lives, and all of that needs to be, honestly, understood at the 
end of the day.
    So, let me start with 1 or 2 questions in the time I have 
left.
    Governor, and any of you, isn't the two-step process, 
really, a way in which--clearly, the distinguished Senator, 
head of the Independence Party, wants to see independence for 
the people of Puerto Rico, clearly you, Governor, as the head 
of the Statehood Party wants to see a change in the status and 
you want to see a Statehood. So, the first option, 
automatically, the union of both of your parties toward that 
option, means that that vote is predetermined.
    Governor Fortuno. If I may, first of all, Mr. Senator, I 
want to commend you and thank you for standing up for the 
American citizens residing in Puerto Rico on so many issues in 
the last 16 months, and before that, of course. I must say, 
publicly--and I've stated this in Puerto Rico--that you stood 
up for what was right. I thank you on behalf of the 4 million 
Americans residing in Puerto Rico--not just on healthcare, but 
on many other issues where you have been up in center, really, 
defending our rights and obligations. If we had 2 Senators 
here, we would not have, really, been bothering you all the 
time, really. But we thank you, anyway, for everything you've 
done so far.
    Trying to address your question--and I believe I did, 
somewhat, address the question earlier. The idea of the two-
step process was to understand whether the voters wanted to 
change, and then address the status options that are viable in 
a free vote.
    However, especially given the way this bill was amended in 
the House, it probably makes no sense, any longer, to have a 
two-step process, it probably makes sense to go straight to a--
to one vote on the 4 options.
    If I may, because you mentioned 3, I think it's important 
that I mention that there are really 3 that are permanent in 
nature, but we should allow those that want to remain a 
territory, that option. There's a sizable group in the 
Commonwealth Party that don't want to remain as we are. That 
they want to move into free association. Actually, since 1998 
until January of this year, that was the institutional position 
of the Commonwealth Party.
    Whether it is, or not, actually there have been polls in 
the last month in Puerto Rico, and there is a group--somewhere 
between 17 and 18 percent that clearly, always, stand for free 
association. So, I believe, if we're going to do that, we 
should have the 3 options that are permanent--that is, 
Statehood, independence, and free association--and then the 
territorial status would just transitory in nature, even though 
we have been living as a territory for the last 112 years.
    Senator Menendez. So, in essence, you believe at this point 
that, based upon how the bill was amended in the House of 
Representatives that the first step should be eliminated?
    Governor Fortuno. Probably. It makes--it really would make 
sense if we want to solve this once and for all. I sense 
pushback on the first round of votes. I sense that, to be open 
about this, here, that we move straight to the second vote.
    However--and I must state this very clearly--the voters 
must understand that what Commonwealth means, as the author of 
that amendment states to Pedro Pierluisi and I, is the present 
status quo, which is a territorial status. That there are 3 
options that are permanent in nature, and the 3 options should 
be there, as well.
    Senator Menendez. Mr. Chairman, I have many other 
questions, but I'll wait for a second round.
    Mr. Berrios Martinez. Mr. Chairman, I would like to answer 
your question, also.
    The Chairman. Senator Bunning has been waiting to ask 
questions, we will have another round, or 2, of questions, 
here. So, there will be opportunities to respond.
    Senator Bunning.
    Senator Bunning. Thank you, Chairman.
    Good to see you again, Governor.
    Governor Fortuno. Likewise.
    Senator Bunning. Welcome, to all of our witnesses.
    It's come to my attention you've had 3 plebiscites in 
Puerto Rico--1967, 1993, and 1998. None of them determined 
anything. Because the Congress and the plebiscites never 
connected.
    Now, it's come to my attention that there's 2 pieces of 
legislation relevant to this referendum that have been filed in 
the legislature in Puerto Rico, S. 1407, and H.R. 2487, in the 
House. Both indicate that if the option of Statehood is chosen 
in this referendum, then 8 months later, Puerto Rico would move 
ahead and conduct the elections of Representatives and Senators 
to the U.S. Congress. Seeing how a pro-Statehood result is only 
the first step in what is certain to be a process longer than 8 
months to join the Union, does it not seem premature to hold 
these elections before there are even seats to fill?
    Governor Fortuno. Yes, indeed, I agree 100 percent. But, 
you know, the State legislators have a right to file whatever 
bills they want to file, and that's their right and I respect 
that. But----
    Senator Bunning. Then you're not--you, personally, are not 
supporting either one of them?
    Governor Fortuno. No, I have stated very clearly that the 
process is different. That, let's assume we had a vote of 3 
permanent options, or 3 plus the one that is transitory in 
nature. Let's assume Statehood carries the day. We will 
commence a process, really, for additional votes, and new--and 
actually, actual Federal legislation--to have a process as we 
have seen in other, in previous cases, where that issue will be 
decided, and it will probably end up being a Statehood, yes or 
no, vote at the end of the day. It's just the beginning of a 
process.
    But don't--and I know a lot of people have been misleading, 
trying to mislead Congress as to filing of those bills. I have 
been very clear on this issue: that the next step would be 
coming back here, probably having new Federal legislation, and 
having additional votes probably just on the status question 
that was approved. You need an enabling bill to move forward. 
You probably have more than one vote, as we have had in other 
previous territories.
    Senator Bunning. Do you all really--the 4 different options 
that we're talking about, here--do you need it written out? Do 
the people of Puerto Rico need to know exactly what a State has 
the responsibility of doing, or if you're an independent 
country? You don't need it. You think the average Puerto Rican 
is fully capable of making that determination?
    Mr. Berrios Martinez. Yes, sir. I must tell you----
    Senator Bunning. No wait a minute.
    Mr. Berrios Martinez. I'm sorry.
    Senator Bunning. I'm asking all 3 of you.
    Mr. Berrios Martinez. OK.
    Senator Bunning. Do you really think that Statehood, 
independence, Commonwealth, and the current status is easily 
understood by the average voter in Puerto Rico?
    Governor Fortuno. I believe the average voter understands 
fully what Statehood means. Actually, there are more Puerto 
Rican-Americans living--residing in the mainland than in Puerto 
Rico. So, they clearly----
    Senator Bunning. I understand that.
    Governor Fortuno. I believe they understand what 
independence means. I believe they understand what our present 
territorial status means. They are confused by that--this 
fourth option----
    Senator Bunning. Commonwealth.
    Governor Fortuno. It's a free association option. Because 
they are being told that we could retain our American 
citizenship, enter into international treaties, have veto power 
over Federal legislation, retain all of the Federal funding 
we're getting today without paying a dime in income taxes at 
the Federal level, and actually even get an additional 
funding--trust----
    Senator Bunning. We don't have those kind of parties in----
    Governor Fortuno. But that has to be clarified. Because 
otherwise you will have 50 requests for the same deal.
    Senator Bunning. Yes, sir.
    Mr. Berrios Martinez. Senator.
    Senator Bunning. Yes.
    Mr. Berrios Martinez. I must state--you asked first, why 
hasn't the petition from Puerto Rico found a common ground in 
this Congress. It's very simple.
    Senator Bunning. This Congress--not this Congress.
    Mr. Berrios Martinez. Yes, previous----
    Senator Bunning. The Congress in 1998.
    Mr. Berrios Martinez. Previous Congresses. It's very 
simple. Because this Congress and the U.S. Government is 
interested in maintaining the territorial status. If it weren't 
interested it would----
    Senator Bunning. Maybe some are.
    Mr. Berrios Martinez. Yes, the majority. If the majority 
hadn't been----
    Senator Bunning. I'm not sure of that, either.
    Mr. Berrios Martinez: Why are we still a territory if you 
don't want us to be a territory, can you answer that?
    Senator Bunning. Some of us would like to see you be 
independent.
    Mr. Berrios Martinez. Perfect. You are----
    Senator Bunning. Some of us would like to see you in your 
current status. Some, I mean--there is a very divergence in the 
Congress of the United States.
    Mr. Berrios Martinez. But we have petitioned different 
ways, and you have always refused the procedures--even when we 
came here, all of us----
    Senator Bunning. Because you send us such mixed messages. 
What was the last plebiscite? What was the result of it?
    Governor Fortuno. None of the above.
    Senator Bunning. That's right. None of the above was the 
result.
    Mr. Berrios Martinez. It is your obligation to decolonize. 
Your constitution obligation to announce to the world that you 
want Puerto Rico to----
    Senator Bunning. A hundred and some years ago, that wasn't 
our obligation.
    Mr. Berrios Martinez. No, no. Now, now, now. It is the 
obligation of the United States----
    Senator Bunning. We have the same relationship, I can give 
you, right now, with Puerto Rico that we have with 3 other 
establishments.
    Mr. Berrios Martinez. Other free nations?
    Senator Bunning. Yes.
    Mr. Berrios Martinez. Of course. That's what I yearn for.
    Senator Bunning. No, no. I mean the same status that you, 
Puerto Ricans, now--the Marshall Islands, and others, have the 
same relationship as you do.
    Mr. Berrios Martinez. No, no.
    Senator Bunning. No, no?
    Mr. Berrios Martinez. No, no.
    The Chairman. Why don't I----
    Mr. Berrios Martinez. Some of them are free associations--
--
    Mr. Rios. Can I answer--can I answer the question?
    Senator Bunning. Three former----
    Mr. Rios. Can I answer the question?
    Senator Bunning. Three former territories have the same 
arrangement and associated with the United States----
    Mr. Berrios Martinez. These are free association 
arrangements.
    The Chairman. Right.
    Senator Bunning. Yes.
    Mr. Rios. Can, sir----?
    Mr. Berrios Martinez. That's correct.
    Senator Bunning. OK, that's what I meant.
    The Chairman. Senator Bunning, why don't we go with the--?
    Mr. Rios. Can I answer the first question? I wasn't allowed 
to answer the----
    The Chairman. Let me ask you a different question, and then 
you can also answer that question.
    Mr. Rios. Sure.
    The Chairman. But, I would like to start a second round of 
questions, here.
    As I understand your statement, you said the bill was 
constructed--this is the legislation--as an unusual, and 
unprecedented two-round voting scheme to predetermine the 
outcome by producing an artificial Statehood majority. Would 
you support this bill if the first-round vote were eliminated? 
In that circumstance, there would then be only one vote, among 
the 4 options presented, including the current Commonwealth 
relationship. Would you support that?
    Mr. Rios. As long as it's a binding process, and----
    The Chairman. You want it to be binding?
    Mr. Rios [continuing]. The United States--U.S. Congress 
commits with the results. But this bill, right now, is not 
binding.
    The Chairman. Right, I agree.
    Mr. Rios. It's not binding. I want to----
    The Chairman. Go right ahead, go ahead and respond to his 
question.
    Mr. Rios [continuing]. To answer the question of Senator 
Bunning, first of all, people know in Puerto Rico what 
Commonwealth is. People don't know what Statehood is.
    Second, Mr. Governor, you ran on a platform saying that if 
Congress did not act in a year, year and a half, you will start 
a special election in Puerto Rico to elect 6 Congressmen and 2 
Senators and start the Tennessee plan. That is in your 
platform, and what Senator Bunning's saying is correct. This 
bill--Senate bill 1407 and H.R. 2497, which are presented by 
your delegations, both of them contain that part--that section 
of your platform that took you to the victory in November 2008, 
and that's in your platform, and you have talked about the 
Tennessee Plan once, twice, 3, 4 and 5 times.
    The Chairman. Let me ask one other question, Representative 
Ferrer, about your testimony on page 11. You state that the 
second ballot should allow the voters the option of continuing, 
and enhancing, Puerto Rico's Commonwealth status.
    Mr. Rios. Correct, sir.
    The Chairman. Continuing the current relationship is an 
option under the House-passed bill. But the question arises as 
to what is meant by the enhancement, and whether these 
enhancements trigger constitutional or policy issues that we 
need to understand.
    More specifically, would the Party continue to seek an 
enhancement, as an enhancement, the establishment of a, quote, 
``Permanent union with the United States under a covenant that 
cannot be invalidated--a covenant that cannot be invalidated or 
altered unilaterally''? Also, would the Party continue to 
support, quote, ``A mechanism to approve or deny the 
application of legislation approved by the U.S. Congress''?
    Mr. Rios. Sir, first of all, what we have today, a 
Commonwealth, the compact that we have today, it was a 
presentation made by the U.S. Government 60 years ago, to the 
world. It says that what we were doing--the Puerto Rican 
Government and the U.S. Government.was right. That that action, 
and let me read what the representative of the United States 
said in the United Nations, he said, ``A most interesting 
feature of the new constitution is that it will enter into--in 
the nature of a compact between the American and Puerto Rican 
people. A compact, as you know, is far stronger than a treaty. 
A treaty usually can be denounced by either side, whereas a 
compact cannot be denounced by either party unless it has the 
permission of the other.''
    This is what the U.S. Government told the world about 
Puerto Rico. We have lived with that assumption for the past 60 
years. Is there something wrong about this compact which is the 
law of the land, and has been at least 4 or 5 times seen in 
different Supreme Court cases as a valid, and constitutional, 
option, well, that's what--that was your offer to the people of 
Puerto Rico and your presentation to the world about the 
compact and the option that was given to the people of Puerto 
Rico.
    The Commonwealth has good things about it, and it has 
flaws--just like independence, and just like Statehood. But, 
our position is that it is better, Commonwealth, than 
independence and Statehood, and that we have the right--like we 
did 60 years ago--to sit on a table with the United States, 
with Congress, the President, and try to enhance the 
Commonwealth. It has been done before--20 years ago, 30 years 
ago. The House passed a bill, it was a bill H.R. 4567, where it 
contained an enhancement of the Commonwealth, and that was 
passed on the House, so it has been done before, it can be done 
before. It's not a legal issue, it's a political will issue, 
and we're in favor of sitting down, anytime, with this 
committee and try to get to an agreement on an enhanced--on an 
enhancement Commonwealth.
    The Chairman. Let me go ahead and call on Senator Murkowski 
for her additional questions.
    Governor Fortuno. Mr. Chairman.
    The Chairman. Yes.
    Governor Fortuno. If I may, some statements were made that 
I, I think at some point I would love to be able to clarify 
them.
    The Chairman. That's fine, I don't mind, but we're really 
not here talking about the various campaign platforms of the 
various parties.
    Governor Fortuno. OK.
    The Chairman. I think we're more focused on this particular 
legislation that's been proposed in the House, and----
    Mr. Berrios Martinez. Senator? I agree with you, but it is 
about time you tell us what you are willing to do. We've told 
you what we're willing to do for 60 years, now. What is 
Congress willing to do?
    The Chairman. That's the purpose of our hearing, is to try 
to get enough knowledge that we can make that judgment.
    Senator Murkowski.
    Senator Murkowski. Thank you, Mr. Chairman.
    I would hope that this is going to be an easy question for 
each of you. I think there have been some statements and 
assumptions that, ``Puerto Ricans know what the definition of 
independence is, what the definition of Statehood--'' I would 
like each of you, in a couple of sentences, or less, to 
describe your Party's definition of its political status 
option.
    So, Governor, if you--as the pro-Statehood, if you could 
just, very succinctly define your political status option, that 
of Commonwealth, and that of independence.
    Governor Fortuno. Statehood is the arrangement under the 
Federal system under which American citizens, residing in a 
body politic, can actually enjoy the same benefits and 
obligations that other citizens residing in other States have. 
That is very clear.
    Senator Murkowski. Commissioner.
    Mr. Rios. Yes, ma'am. I'm going to read from our governing 
platform. It's in Spanish, but I'm going to translate. ``The 
concept of a sovereign Commonwealth seeks to have the Puerto 
Rican and U.S. Government agree on specific terms defining this 
mutual relationship, with American citizenship as the binding 
element of a political association. We support the autonomous 
development of the Commonwealth based on the principles of 
shared sovereignty, association, and responsibilities with the 
United States. Sovereignty means that the ultimate power of a 
nation to handle its affairs rests with the people. To address 
the status issue, we must begin by recognizing that the 
sovereignty rests with the people.'' That's what's written in 
our platform.
    Senator Murkowski. OK.
    Mr. Berrios Martinez. Senator. I'm not--I don't know if 
you're a lawyer, but I am so I----
    Senator Murkowski. I'm a lawyer, and I would like your 
definition of the independence option.
    Mr. Berrios Martinez. It's a res ipsa loquitor. All 
independent states in the world which are 200 and some-odd 
independent nations in the world are independent nations, and 
that's what we yearn for our land. Those principles that 
Jefferson, Madison, Washington fought for, that's what we want 
for our land--we want to command our own destiny. So, res ipsa 
loquitor.
    Senator Murkowski. Let me ask, the last status, which is 
free association.
    Governor, you have suggested that it is, perhaps, confused 
or less understood--and you've spoken to that. Would the other 
2 gentlemen agree that there is less clarity on the definition 
of that political status option?
    Mr. Rios. The way it is defined----
    Senator Murkowski. Because there is no one representing 
that, here.
    Mr. Rios. Correct. The way it's defined in the bill, it is 
confusing.
    Senator Murkowski. Would you agree, Mr. Berrios Martinez? 
Would you agree?
    Mr. Berrios Martinez. The way the free association 
statement is defined in the bill?
    Mr. Rios. In the bill.
    Mr. Berrios Martinez. It's defined by international law. It 
doesn't need to be defined that way.
    Mr. Rios. The CRS has a report--2 reports as a matter of 
fact--in that issue, and it says that it's vague. The 
definition of that third option is vague in this bill. I think 
we have it here, we can share it with you guys.
    Governor Fortuno. Senator, the issue is that the position--
official position of the Commonwealth Party has been quite 
different----
    Mr. Rios. No, it's not.
    Governor Fortuno.--until January of this year, at least.
    Mr. Rios. No, it's not. No, it's not.
    Governor Fortuno. I have the documents, you know.
    Mr. Rios. No, it's not.
    Governor Fortuno. Again, the resolutions and what they put 
out----
    Mr. Rios. No, it's not.
    Governor Fortuno.--that's why we're requesting that 
Congress step in----
    Mr. Berrios Martinez. Why don't we stop fighting among 
ourselves and let you fight among----
    Governor Fortuno.--define it.
    Senator Bunning [continuing]. Determination.
    Governor Fortuno. That's why a definition is needed.
    Mr. Rios. No, it's not, sir.
    Senator Murkowski. If there are documents that you would 
like submitted to the record----
    Mr. Rios. We will.
    Senator Murkowski [continuing]. I think it's fully 
appropriate to provide them to the Chairman.
    Mr. Rios. We will.
    Senator Murkowski. Thank you, Mr. Chairman.
    The Chairman. No, we--we're glad to include in our record 
whatever documents any of you would like to have included.
    But, let me now call on Senator Menendez for additional 
questions.
    Senator Menendez. Thank you, Mr. Chairman.
    You know, Mr. Ferrer, do--let me get this straight. Do you 
support, as one of the options in the plebiscite, the 
association--sovereignty in association with the United States?
    Mr. Rios. No. My Party does? No.
    Senator Menendez. OK. So, you do not. That's--that's why 
I'm confused, because when I only spoke of 3, I spoke of 3 
because that was my understanding of the positions of the 
respective parties represented before us, and to me, 
sovereignty in association with the United States, I agree with 
Governor Fortuno. Not only are Puerto Ricans confused about it, 
but I am confused by it. I am both a legislator and a lawyer.
    One of the concerns I have in sovereignty in association, 
is that if you defined it under international standards, under 
that definition, the people of Puerto Rico would not be 
considered citizens of the United States.
    Mr. Rios. Correct.
    Senator Menendez. I do not think--I do not think--that is--
I would not think--maybe, I know Mr. Barrios would disagree--
but I do not think that those who have citizenship want to give 
it up. So, I'm confused as to why we have sovereignty in 
association, if no one here supports it and, in fact, it is a 
clearly--a huge definitional problem, including a fundamental 
issue about those United States citizens in Puerto Rico who, 
under such a change, might very well lose their citizenship.
    So, let me ask this question. In independence, it's rather 
clear--it is res ipsa loquitor, it is what it is, it speaks for 
itself. But, in the case of either Statehood or a continuing 
Commonwealth, or an enhanced one, as you have suggested that 
the law permits, there are questions that Puerto Ricans should 
know about. Be able to answer.
    For example, what happens to the question of language? What 
happens to the question of an Olympic team? What happens to the 
question of the conduct of the courts and the public schools? 
Change, in any of these set of circumstances, in one case 
remains the same, in another case, with Statehood, how do we 
view that? Your enhanced Commonwealth, how do you view that?
    Because it seems to me that if we look at the history of 
how States were entered in--territories entered into the Union, 
there were demands on them, you know, including the 
distinguished Chairman's State. How do you view that?
    Governor Fortuno. Mr. Chairman, I mean, Mr. Senator, I--
first of all, I----
    Senator Menendez. Please don't get me in trouble with 
Senator----
    Governor Fortuno. I know.
    [Laughter.]
    Governor Fortuno. Senator, I think it's very clear what 
Statehood means. The arrangement that allows for a Federation 
of States to be established under one Federal Government is--
was unique at the time that it was commenced, but it is no 
longer unique. Actually we see other parts of the world that 
are trying to move in that direction--not with the same success 
we have had, so far.
    What is wrong is to, after 112 years, have formerly 
American citizens residing under conditions that are so unequal 
to their counterparts in the mainland.
    Senator Menendez. I fully understand that that is your 
position, and I understand, you know, the currency behind your 
statement.
    My question would be, if the people of Puerto Rico voted in 
an unstacked plebiscite for Statehood, and those of us--like 
myself--who are ready to support the people of Puerto Rico's 
determination in an unstacked plebiscite, would--if Statehood 
meant that the official language of Puerto Rico has to be 
English, if Statehood meant that you obviously couldn't have an 
Olympic team because you are part of the United States now--
those are things that the people of Puerto Rico should know in 
the equation.
    If Commonwealth is going to continue to be the set of 
circumstances the people of Puerto Rico should know that there 
are certain things that they will not be able to achieve under 
Commonwealth status. So, my goal here, is that it is very easy 
to throw out, you know, a one-phrase term, ``Statehood,'' 
``Commonwealth,'' ``independence,'' but what goes behind that 
in understanding what comes with it, I think, is very critical.
    Governor Fortuno. Let me tell you, and I'll answer both 
questions.
    First of all, as to Statehood, since 1902 our 2 official 
languages have been English and Spanish. We're proud of both 
languages, and most of our parents want their children to be 
totally fluent in English. English is the language of--to 
advance, not just in business and your professions, but in 
life, in general. We recognize that. Actually at times, there 
have been people that have played with that tool of advancement 
for political purposes.
    I believe it makes no sense. I pledged in my campaign that 
I wanted our children, since pre-K, to be fully bilingual. They 
must learn English from the very beginning, and we're proud of 
that.
    At the same time, I'm proud that I speak Spanish. When we 
pray at home, we pray in Spanish. I'm sorry, I don't think 
Washington should have anything to say about how we pray at 
home.
    Having said that, however----
    Senator Menendez. I don't believe Washington should have 
anything to say how you pray home, or anywhere else. I think 
you should have the freedom to pray wherever you choose.
    Governor Fortuno. Exactly. That's what binds this great 
country together, is the values we share. That's why we're 
proud to be Americans.
    Having said that, however, if I may--I believe there's 
still a question on the table. Because the present leadership 
of the Commonwealth Party supports--I think, I'm not sure, yet 
but I think--it's the present territorial status. Even though, 
for the last 12 years, they have supported a different deal, 
and it's in writing. A deal that have been put in writing and 
actually that they--in the 1998 plebiscite that you all 
questioned about, was put forth as one of the options, that 
they said, you know, that this is doable.
    We all know it's not doable. We know it's not doable. 
There's a sizable group that may not be represented by him, 
within his own Party, that feel different. That group has 
legislators. They must have an option to vote for that, because 
it's doable.
    We have a deal like that, as Senator Bunning was 
mentioning, with the Marianas. I mean, the Micronesian Islands, 
which is different from the deal the Federal Government has 
with the territory of Puerto Rico.
    Senator Menendez. Mr. Chairman, could we have the other 2 
witnesses answer the question?
    The Chairman. Yes. Why don't we do that, and then we'll go 
to Senator Bunning for additional questions.
    Mr. Rios. First of all, I do represent my Party, all of my 
Party.
    Second, somebody told me when I started visiting Congress, 
that you have to--in your meetings, you have to ask. What is 
your ask? Your question, Senator, is our ask. Define Statehood, 
for the people of Puerto Rico. The people of Puerto Rico should 
know what are the consequences of Statehood. Spanish or 
English? I'm a Spanish-speaking Puerto Rican. I know English. 
But only 20 percent of the people of Puerto Rico are fully 
bilingual. That's a fact, too.
    Two, we love our Olympic team. With all due respect, when 
our basketball team, our national basketball team, beat the 
U.S., we were celebrating because we beat the best team in the 
world, with our Olympic team, and that's a fact, too.
    So, my ask is, to define Statehood, outline Statehood for 
the people for the people of Puerto Rico.
    Second, about Commonwealth. Sure, we want to enhance 
Commonwealth, but that's a process of negotiation between 
Congress and the people of Puerto Rico. Their--Governor Fortuno 
is repeating and repeating that he has 10, 12 documents--well 
those are aspirations of our Party. You can be in one point of 
the table, as a party that is engaging in negotiation, and the 
other party is in the other side. We start walking together, 
and see what we can agree upon.
    We can also take, as a starting point, the definition of 
the new Commonwealth relationship that was approved on the 
House 20 years ago, H.R. 4567, and that's a starting point on 
the discussion on how we can enhance Commonwealth.
    Finally, it can be done. The Constitution of the United 
States is not a strict constitution, it's a dynamic 
constitution. I roll back on what I say on a previous term. 
It's not a legal issue, it's a will issue.
    Governor Fortuno. Senator, if I may say so, we aspire to 
have 4 Senators, too.
    The Chairman. Why don't we go ahead and have Senator 
Bunning--or, Senator Barrios, could you give us a quick 
response to his question? Then Senator Bunning?
    Mr. Berrios Martinez. Yes, of course.
    Of course, Congress could say what's it's opinion regarding 
Statehood or Commonwealth, of course. What I am suggesting, 
what I am telling Congress to tell the people of Puerto Rico 
is, ``You have a right to self-determination, and we have an 
obligation to decolonize. Now, you go and tell us your 
mechanism,'' which we propose as a constitutional convention, 
``what is it that you want?'' Then let whoever wins, if the 
Statehoods win, come here and ask--and then you will tell them. 
That's the way to do it. We--when and how we do it, it's our 
self-determination.
    The Chairman. Right.
    Mr. Berrios Martinez. That's my position regarding what you 
just said. So, I think it's very simple.
    The Chairman. All right, thank you very much.
    Senator Bunning, go right ahead.
    Senator Bunning. Thank you.
    We get 3 Puerto Ricans together, we can get an argument any 
time.
    [Laughter.]
    Mr. Berrios Martinez. That's what I mean by the cavalier 
and condescending attitude of Congress.
    Senator Bunning. Oh, really?
    Mr. Berrios Martinez. Yes.
    Senator Bunning. I happened to live in Puerto Rico for 
quite a while, and----
    Mr. Berrios Martinez. You have to----
    Senator Bunning [continuing]. I understand Puerto Rico 
pretty well. In fact, I played for Marianal down in Puerto Rico 
and----
    Mr. Berrios Martinez. Good.
    Senator Bunning [continuing]. The----
    Mr. Berrios Martinez. Welcome.
    Senator Bunning. Not Marianal, I was in Cuba, but we played 
for Cogwes.
    Mr. Rios. Cogwes.
    Mr. Berrios Martinez. Cogwes.
    Mr. Rios. All right.
    Senator Bunning. Managed Cogwes in Puerto Rico. So, I have 
a very strong affinity with Puerto Rico. I am troubled by self-
determination and a certain way to self-determine if, not 
allowing the people to vote on what they want is not the proper 
way to self-determine, rather than having a constitutional 
convention which, we haven't had in--God knows how long--in the 
United States. We don't even--we haven't had one in the 
Commonwealth of Kentucky since 1891-1981. Just to give you an 
example how long constitutional conventions have not been in 
vogue.
    But, a determination--and I agree that there--it has to be 
laid out, the different options that are available, and spelled 
out for those who are voting. But, just to give you an idea of 
why there is such mixed feelings about this--1990, CBO did a 
study on Puerto Rican Statehood. It would cost, in 1990, about 
$2 billion a year. Independence would save almost $780 million 
per year.
    Now, these figures are 20 years old. They're certainly 
higher, probably, now than they were at that time. Do any of 
you know what the current budgetary effects of the different 
options discussed here, today, are? Anybody?
    Governor Fortuno. First of all, on behalf of the 4 million 
American citizens that reside in Puerto Rico, but especially 
the men and women that have served in uniform in defense of 
democracy since 1917, I cannot put a price tag on their lives, 
I'm very sorry, Senator.
    Senator Bunning. I don't want to put a price tag on their 
lives, either.
    Governor Fortuno. Second, I will state, very clearly, that 
there have been a number of scorings on different bills, on 
status. I saw a scoring that stated that the cost of 
Statehood--if you want to call it that way, and I have a 
problem with that--will be $5 million. The raw deal for the 
American citizen is what's happening today.
    Senator Bunning. We spend more than that, Governor, in 1 
day.
    Governor Fortuno. Actually, I have the report here. I have 
the report here that we could actually, if we--if you want to--
--
    Senator Bunning. You may, please enter it into the record.
    Governor Fortuno. We could introduce it into the record, 
but actually this was the Senate Committee, this committee 
report, in 1989, stated that the cost was less than $5 million 
under the bill that was reported under Senate Finance in 1990. 
So, there are--it depends on which bill you were looking at, 
but this was scored. This bill, right now, 2499, has not been 
scored because it is not self-executing. But at the time, the 
last time we had something that was self-executing, the numbers 
were quite different.
    Actually, it stated--the CRS report in 1991 stated that 
the--Statehood would have a net cost to the U.S. Treasury, 
during the first 4 years, beginning with the $700 million in 
1992, but then after the Treasury, after the succeeding 5 
years, culminating in a $1.3 billion net positive contribution 
by 2000. So, the net--there was going to be a net contribution. 
But the greatest one of those contributions is our men and 
women, really, that have actually contributed to this Nation in 
more than one way.
    Senator Bunning. Go ahead.
    Mr. Rios. Sir, I agree with you, there should be a CBO 
study on all of the options--this bill doesn't have one. That's 
one of the flaws of this.
    Senator Bunning. There will be--if, in fact--there will be 
a CBO study. A score.
    Mr. Rios. But, let me add that, it is essential for this 
committee to have that study. Because while the pro-Statehood 
Party, its strategy is to go to Puerto Rico and say, ``Well, if 
we get a resolution of this committee,'' not even the bill, 
just a resolution of this committee, agreeing on self-
determination, that will be enough for them to conduct a 
plebiscite in Puerto Rico. That's--nothing wrong with that. 
But, the 2 bills that you stated before, the ones that are in 
the House and Senate, I would like you to read them--both of 
them. You were talking about self-determination--both of them 
only include Statehood and independence. There's no room for 
Commonwealth on their bill, and that's a rigged process, too.
    Senator Bunning. Excuse me.
    Go ahead.
    Mr. Berrios Martinez. Yes, sir.
    Senator, of course if nothing is done, than Commonwealth 
wins by default. The territory----
    Senator Bunning. Correct.
    Mr. Berrios Martinez [continuing].--That's the position of 
the PPD.
    Senator Bunning. Status quo is the position.
    Mr. Berrios Martinez. Yes. Status quo.
    Now, I must say, regarding cost. You've already referred to 
the cost of Statehood. The cost of Commonwealth is a political, 
economic, moral, spiritual, and economic bankrupt, or 
bankruptcy Puerto Rico is living under. Those are clear. As you 
say, for the United States, the cost of independence is for its 
prestige to surge in Latin America and the world over.
    Senator Bunning. Thank you, Mr. Chairman.
    The Chairman. Thank you very much.
    I think we've had a good hearing, we've had good testimony 
on all sides of the issue.
    Mr. Rios. Yes, sir, I just wanted to ask permission to 
submit, in the next 10 days, all possible written documents 
that we can, in the next 10 days, like Ranking Member Murkowski 
asked? In the next 10 days?
    The Chairman. We're glad to have anything that's relevant 
to this issue before us.
    Mr. Rios. To this issue.
    The Chairman. We don't need all of the political----
    Mr. Rios. No, to this issue. To this issue, sir.
    The Chairman [continuing]. Platform positions.
    Mr. Rios. Yes, to this issue, sir.
    The Chairman. But, if--anything relevant to this 
legislation----
    Mr. Rios. Thank you.
    The Chairman [continuing]. We're glad to have.
    Mr. Rios. Thank you.
    The Chairman. We would appreciate that.
    But, thank you all. I think it's been very good testimony, 
and we will ask the second panel to please come forward.
    Let me ask the second panel to please come forward, and 
those who are not involved in the second panel could take their 
seats.
    OK, let me introduce the second panel, please. The 
witnesses on the second panel are the Honorable Donna 
Christensen, who is the United States Virgin Islands delegate 
to Congress, serving in the House of Representatives. Next is 
Mr. Gerald Luz James, who is President of the Fifth 
Constitutional Convention in the Virgin Islands, thank you for 
being here. Mr. Cedarbaum is the Deputy Assistant Attorney 
General with the Department of Justice.
    Could we ask that the visitors please exit the room if 
they're not focused on this second panel?
    Let me just state for the record, Mr. Cedarbaum is here to 
present the Administration's views only on the proposed 
constitution for the Virgin Islands. He's not authorized to 
speak to, or answer questions on other bills that are being 
considered by the committee today.
    Next is the Honorable John Silk, the Minister of Foreign 
Affairs with the Republic of the Marshall Islands, we 
appreciate him being here. Mr. Nikolao Pula, who is the 
Director of the Office of Insular Affairs with the Department 
of the Interior.
    There any way to speed up the exit of folks so that we can 
hear the witnesses?
    OK, why don't we go ahead. We have the Honorable Donna 
Christensen first, and then we would just go right across the 
table. If each of you could take about 5 minutes and make the 
main points you think we need to understand, and your complete 
statements will be included in the record.
    Thank you for being here.

STATEMENT OF HON. DONNA M. CHRISTENSEN, DELEGATE OF THE VIRGIN 
             ISLANDS, U.S. HOUSE OF REPRESENTATIVES

    Ms. Christensen. Thank you, Mr. Chairman. Good morning to 
you, Chairman Bingaman, and Ranking Member Murkowski. Thank you 
for holding this hearing on the proposed Virgin Islands 
Constitution and for the opportunity to testify.
    I consider the adoption of our own Constitution an 
important and requisite step in our political development. 
Having begun this process more than 30 years ago and now on 
this our 5th attempt, the time to complete the process is now 
or it may be years, yet another generation before a 6th 
convention could be convened. That is unacceptable, at least it 
is unacceptable to me.
    Since the people of the Virgin Islands have not made a 
status decision that would allow us to develop a Constitution 
under anything other than that of an unincorporated territory, 
this draft must be consistent with the U.S. Constitution. 
Reviews thus far by the White House and Justice Department have 
concluded that it is not, in several areas.
    While I understand the concerns of the Congress not to 
abdicate its responsibility to bring it into compliance with 
the U.S. Constitution, I feel that it's very important--I feel 
it's necessary that this process be viewed, also, as an 
important step--an important part of our journey to increased 
political maturity and greater self-governance.
    Further, the Congress has taken a position in recent years 
that has been supportive but non-prescriptive and one of little 
or no interference in that journey. Recognizing that no law or 
any constitution of any territory or State----
    The Chairman. Let me ask you if the door can be closed, 
please?
    I apologize for that interruption. Go ahead with your 
statement.
    Ms. Christensen. Some students from the Virgin Islands may 
also come in at some point.
    But, recognizing that no law or constitution of any 
territory or State can abrogate any right of a person living in 
the United States or under the U.S. constitution, I believe 
that this is the position--the position of non-interference--
that we should continue to take in this matter.
    As Virgin Islanders, we have grappled with the issues 
raised by the White House and the Department of Justice for 
many years. I believe that these issues should be resolved or 
brought to consensus by the people of the Virgin Islands. If 
the Congress intervenes, it will not allow the people to go 
through the important process of coming to this resolution on 
our own.
    This approach would present a choice, then, of years of 
local court proceedings or one of reconvening the 
Constitutional Convention for the purpose of considering the 
issues raised by the President and the Department of Justice. 
The better and wiser course, I believe, would be the latter. I 
recommend, then, that the Convention be reconvened for a 
specific number of days and that it be left to the Convention 
delegates to decide the process that they want to follow when 
it does reconvene. To ensure the success of this process, it 
would be critical that the Congress support the extended 
convention with the necessary funding to properly undertake 
this task. The Fourth constitutional convention and the process 
has set a precedent for that to be done.
    Last, I strongly recommend that it not be required that the 
document be returned to the President or to the Congress once 
the convention has completed its reconsideration of the issues, 
but that once passed by the Convention, it go directly to the 
people of the Virgin Islands for their adoption or rejection.
    So, I thank you for the opportunity to testify.
    [The prepared statement of Delegate Christensen follows:]

Prepared Statement of Hon. Donna M. Christensen, Delegate of the Virgin 
                Islands, U.S. House of Representatives,
    Good morning and thank you Chairman Bingaman, Ranking Member 
Murkowski, and other members of the Committee for this hearing on the 
proposed Virgin Islands Constitution and for the opportunity to 
testify.
    I consider the adoption of our own Constitution an important and 
requisite step in our political development. Having begun this process 
more than 30 years ago and now on this our fifth attempt, the time to 
complete the process is now or it may be years, yet another generation 
before a 6th convention could be convened. That is unacceptable--at 
least to me.
    Since the people of the Virgin Islands have not made a status 
decision that would allow us to develop a Constitution under anything 
other than that of an unincorporated territory, this draft should be 
consistent with the U.S. Constitution. Reviews thus far by the White 
House and Justice Department have concluded that it is not in several 
areas.
    While I understand the concerns of the Congress not to abdicate its 
responsibility to bring it into compliance with the US Constitution, I 
feel it is necessary that this process be viewed as an important part 
of our journey to increased political maturity and greater self 
governance.
    Further, the Congress has taken a position in recent years that is 
supportive but non-prescriptive and of little or no interference in 
this journey. Recognizing that no law or any constitution of any 
territory or state can abrogate any right of a person living in the 
United States and under the US constitution, I believe this is the 
position we should continue to take in this matter.
    As Virgin Islanders, we have grappled with the issues raised by the 
White House and the Department of Justice for many years. I believe 
that these issues should be resolved or brought to consensus by the 
people of the Virgin Islands. If the Congress intervenes, it will not 
allow the people to go through the important process of coming to this 
resolution on our own.
    We have a choice of years of local court proceedings or reconvening 
the Constitutional Convention for the purpose of considering the issues 
raised by the President and the Department of Justice. The better and 
wiser course I believe is the latter. I recommend that the Convention 
be reconvened for a specific number of days and that it be left to the 
Convention delegates to decide the process that they want to follow. To 
ensure the success of this process it would be critical that the 
Congress support the extended convention with the necessary funding to 
properly undertake this task. The Fourth constitutional document has 
set a precedent for this to be done.
    Lastly, I strongly recommend that it not be required that the 
document be returned to the President or the Congress once the 
convention has completed its reconsideration of the issues, but that if 
passed by the Convention it go directly to the people of the Virgin 
Islands for their adoption or rejection.
    I again thank you for this opportunity to testify.

    Ms. Christensen. If I might, I'd like to introduce the next 
speaker?
    The Chairman. Go right ahead.
    Ms. Christensen. Thank you.
    Mr. Chairman, Ranking Member, I'm pleased to introduce the 
President of our Fifth Constitutional Convention, the Honorable 
Gerard Luz James II, who is also a former Lieutenant Governor 
of the Virgin Islands, a former member of the legislature of 
the Virgin Islands, and a prominent businessman in the St. 
Croix community.
    He comes from a well-known Virgin Islands family whose 
record of service to our people is long and distinguished. I am 
pleased that he is here with us today to convey the wishes of 
the Convention with regard to the document before us.
    Thank you, again, for the opportunity to testify, and to 
introduce the President of the Constitution.
    The Chairman. Thank you very much.
    Mr. James, go right ahead.

   STATEMENT OF GERALD LUZ AMWUR JAMES, II, PRESIDENT, FIFTH 
        CONSTITUTIONAL CONVENTION OF THE VIRGIN ISLANDS

    Mr. James. Thank you very much. Thank you very much. Good 
morning, Chairman Bingaman and Ranking Member Murkowski. 
Members and others present, I am Gerard Luz James II, President 
of the Fifth Constitutional Convention of the United States 
Virgin Islands. It is my distinct honor to address this 
committee.
    The proposed constitution was drafted by the people and for 
the people of the United States Virgin Islands. It is not 
proposed to govern any other people. The people who have made 
negative comments about the document have not worn the shoes of 
those who have suffered the indignation of being governed 
externally. They have not examined the evidence that led the 
convention to adopt provisions in this constitution that are so 
necessary to keep life going for those whose parents, 
grandparents, and great-grandparents have worked hard in order 
to own property that would provide life for themselves and 
their future generations.
    The critics have not reviewed the evidence that shows that 
those whose ancestries lies in the Virgin Islands have been 
devastated by the lack of support for the people of the Virgin 
Islands. That evidence demonstrates that the territory has 
114,000 residents, and that more than 58,000 Virgin Islanders 
no longer reside in the Virgin Islands. These people now live 
in the mainland U.S. of A. Simple math resolves that this loss 
represents about one-half of the current population of the 
Virgin Islands. The life-blood of any people lies in its young. 
Historically, people of this great country worked to provide a 
better life for their young with the hope that they would 
prosper from their parent's labor. The young of the Virgin 
Islands are leaving because their parents can not pass on to 
them the home that had been in their family for decades.
    Unlike the mainland, the values of the homes in the Virgin 
Islands have soared due to the many tourist developments. These 
developments have caused the taxes on the ancestral homes to be 
well beyond the ability of many families to pay. Even worse is 
the plight of our young, who remain and resort to violence in 
an effort to acquire something they can call their own.
    I sit as a witness to the loss of these young lives. As a 
funeral director, I daily look into the eyes of the young and 
see the absence of hope. The convention has compelling reasons 
for the provisions that are contained in the document. The 
provisions in this constitution, as they relate to natives, is 
not new to this Congress. This body has recognized that the 
native people of this country and its territories, at times, 
need special protection in order for the native people to 
exist. The Congress of the United States has enacted laws for 
native people of Hawaii, Alaska, and Northern Marianas, 
Aleutians, and the continental United States. Congress did not 
deny those revisions in advance because of alleged 
unconstitutionality. Congress knew that constitutional 
challenges to a specific provision of law can not be resolved 
by any litmus paper test. Congress knew that constitutionality 
is determined on a case-by-case basis.
    It was the U.S. Government that established the definition 
contained in the proposed constitution. These definitions 
should not bring suspicions or challenge, or be improper. These 
definitions are derived directly from the Government of the 
United States. It was an act of Congress that differentiated 
the people of the Virgin Islands and conferred different legal 
status upon them by virtue of 8 USC, subsection 1406.
    It was an act of Congress that carved out certain rights 
for natives. Everyone in this room, including the Justice 
Department, is fully aware that our proposed constitution is 
not designed to usurp the sovereignty or supremacy of the 
Federal law. The passage of the constitution will not, nor is 
it intended, to alter our political relationship with the 
United States. It merely represents a farther step along the 
path toward a full measure of self-dignity. We strongly believe 
that the constitutions provisions are not discriminatory, do 
not violate Federal law, and do support a constitutional 
appropriate interest.
    Throughout our history, our shores have remained open to 
all people, cultures, and ethnicity. We ask that Congress 
approve the proposed constitution with all its present 
provisions. I am aware that Congress is considering a 
resolution to urge the convention to reconvene. If the 
resolution passes, we ask that Congress provide the financial 
resources that would be necessary for the convention to 
reconvene. We ask that Congress allow the convention, after 
reconvening, to place the proposed constitution before the 
voters of the territory, without further need to send a 
document to the Government of the Virgin Islands. We further 
ask that the requirements to send the proposed constitution 
back to Congress be eliminated.
    This is our fifth attempt to attain greater self 
government. You need to know how important this constitution is 
to the Virgin Islands. This proposed constitution has helped to 
breed new life and hope into our people. It is--it is the talk 
of every radio and television show, it is the topic of daily 
conversations. People now believe that their lifelong dreams 
will come true. These pieces of paper may not mean much to many 
in this room, but it means life to the people of the Virgin 
Islands.
    I thank you very much for giving me this opportunity.
    [The prepared statement of Mr. James follows:]

  Prepared Statement of Gerard Luz Amwur James, II, President, Fifth 
            Constitutional Convention of the Virgin Islands
    Good Morning Chairman Bingaman, Committee members and all others 
present. I am Gerard Luz Anwur James II, President of the Fifth 
Constitutional Convention of the Unites States Virgin Islands 
(``Convention''). It is my distinct honor to address this Committee.
    The proposed constitution was drafted by the people and for the 
people of the United States Virgin Islands. It is not proposed to 
govern any other people. The people who have made negative comments 
about the document have not worn the shoes of those who have suffered 
the indignation of being governed externally. They have not examined 
the evidence that led the Convention to adopt provisions in this 
constitution that are so necessary to keep life going for those whose 
parents, grandparents, and great-grand parents have worked hard in 
order to own property that would provide life for themselves and their 
future generations. The critics have not reviewed the evidence that 
shows that those whose ancestry lies in the Virgin Islands have been 
devastated by the lack of support for the people of the Virgin Islands.
    The evidence demonstrates that the territory has 114,000 residents 
and that more than 58,000 Virgin Islanders no longer reside in the 
Virgin Islands. These people now live in the mainland United States. 
Simple math resolves that this lost represents about one-half of the 
current population of the Virgin Islands. This exodus must stop or the 
Virgins Islands' life blood will cease to exist. Extinction of the 
native people of the Virgin Islands is not an acceptable option.
    The life blood of any people lies in its young. Historically, 
people of this great country work to provide a better life for their 
young with the hope that they will prosper from their parent's labor. 
The young of the Virgin Islands are leaving because their parents 
cannot pass on to them the home that had been in their family for 
decades. Unlike the mainland, the values of the homes in the Virgin 
Islands have soared due to the many tourist developments. These 
developments have caused the taxes on the ancestral home to be well 
beyond the ability of many families to pay. Their homes have been taken 
from them. Even worst is the plight of our young who remain and resort 
to violence in an effort to acquire something they can call their own. 
I sit as a witness to the lost of these young lives. As a funeral 
director, I daily look into the eyes of the young and see the absence 
of hope they once suffered. The Convention has compelling reasons for 
the provisions that are contained in the document.
    The provisions in this constitution as they relate to ``natives'' 
is not new to this Congress. This body has recognized that the native 
people of this country and its territories at times need special 
protections in order for the native people to exist. The Congress of 
the United States has enacted laws for native people in Hawaii, Alaska, 
the Northern Marianas, Aleutians and the continental United States. 
Congress did not deny those provisions in advance because of alleged 
unconstitutionality. Congress knew that Constitutional challenges to a 
specific provision of law cannot be resolved by any litmus-paper test. 
Congress knew that constitutionality is determined on a case-by-case 
basis.
    It was the United States government that established the 
definitions contained in the proposed constitution. These definitions 
should not bring suspicion or challenge as being improper. These 
definitions are derived directly from the Government of the United 
States. It was an act of Congress that differentiated the people of the 
Virgin Islands and conferred different legal status upon them by virtue 
of 8 U.S.C. Sec. 1406. It was this act of Congress that carved out 
certain rights for ``natives.'' To the best of my knowledge, these 
provisions have not been challenged or overturned.
    The Fifth Constitutional Convention's fact gathering process 
included public meetings throughout the Virgin Islands. The Convention 
heard testimony from hundreds, reviewed formal presentations and 
documents.
    Everyone in this room including the Justice Department is fully 
aware that our proposed constitution is not designed to usurp the 
sovereignty or supremacy of federal law. The passage of our 
constitution will not, nor is it intended to, alter our political 
relationship with the United States. It merely represents a further 
step along the path toward a full measure of self-dignity.
    We strongly believe that the constitution's provisions are not 
discriminatory, do not violate federal law and support a Constitutional 
appropriate interest. Throughout our 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 to insure that our beloved territory remains our 
``Virgin Islands Home.''
    We asked that Congress approve the proposed constitution with all 
of its present provisions. At the very least we ask that the 
constitution be returned with no action.
    I am aware that Congress is considering a resolution to urge the 
Convention to reconvene. We do not ask this, but if the resolution 
passes, we ask that Congress in the resolution provide the financial 
resources that would be necessary for the Convention to reconvene. We 
ask that Congress allow the Convention, after reconvening, to place the 
proposed constitution before the voters of the territory without 
further need to send the document to the Governor of the Virgin 
Islands, who has tried in every way to circumvent the will of the 
people. We further ask that the requirement to send the proposed 
constitution back to the President and Congress be eliminated.
    This is our fifth attempt to attain greater self-government since 
Congress passed PL 94-584 in 1976, which granted us the authority to 
draft our own constitution. You need to know how important this 
Constitution is to the Virgin Islands. This proposed constitution has 
helped to breathe new life and hope into our people. It is the talk of 
every radio and television show. It is the topic of daily conversation. 
People now believe that their life-long dreams will come true. These 
pieces of paper may not mean much to many in this room, but it means 
life to the people of the United States Virgin Islands.
    Thank you again for your time and consideration.

    The Chairman. Thank you very much for your testimony.
    Mr. Cedarbaum, why don't you give us your Administration's 
views on the proposed constitution.

 STATEMENT OF JONATHAN G. CEDARBAUM, DEPUTY ASSISTANT ATTORNEY 
                 GENERAL, DEPARTMENT OF JUSTICE

    Mr. Cedarbaum. Thank you, Chairman Bingaman, Ranking Member 
Murkowski, my name is Jonathan Cedarbaum, I'm a Deputy 
Assistant Attorney General in the Office of Legal Counsel at 
the Justice Department. I am honored to appear before you this 
morning to discuss the proposed constitution for the U.S. 
Virgin Islands recently drafted by a constitutional convention 
there.
    As you know, Public Law 94-584 as amended, 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 proposed 
constitution to Congress with his comments. As the President 
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 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. The President attached a copy of the department's 
memorandum to his letter of transmittal. As the President 
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 political 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; seven, 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 morning, but I should emphasize that our review was 
limited to legal issues. 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 like to briefly 
highlight 3 issues as to which the Department suggested that 
changes in the proposed constitution should 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 defining 
groups by place and timing of birth, timing of residency, or 
ancestry, 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 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 Virgin 
Island residents for periods ranging from 5 to 15 years. These 
requirements, particularly those requiring more than 5 years of 
residence, raise potential Equal Protection concerns. Thus, we 
would suggest the 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 
section 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 revised.
    In addition, by statute, the United States has, subject to 
certain exceptions, conveyed to the Virgin Islands its right, 
title, and interest in submerged lands and mineral rights in 
those submerged lands, out to 3 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 this 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 
these 3 aspects of the proposed constitution because they are 
ones that we believe Congress should consider revising. We 
thought that would be most useful--most helpful for the 
committee as it determines what action to take in response to 
the transmittal of the proposed constitution.
    But let me close by again echoing President Obama's letter 
of transmittal, in 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'd be happy to address any questions you have, and I'd be 
grateful if the Department's memorandum could be inserted in 
the record of this hearing following my statement.
    The Chairman. We will be glad to include that memorandum in 
the committee record.
    [The prepared statement of Mr. Cedarbaum follows:]

Prepared Statement of Jonathan G. Cedarbaum, Deputy Assistant Attorney 
                     General, Department of Justice
    Chairman Bingaman, Ranking Member Murkowski, Members of the 
Committee:
    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 morning 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 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 in certain 
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 morning. 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. Sec.  
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. [Sec. ] 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, Sec.  1.\1\
---------------------------------------------------------------------------
    \1\ The 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.
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            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.'' Proposed Const. art. XI, Sec.  
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. Sec.  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.
---------------------------------------------------------------------------
    \2\ See 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 O 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).
---------------------------------------------------------------------------
    The definition of Ancestral Native Virgin Islander appears to 
combine two sub-classes: (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 fide residents.''' Id. at 622-23 (quoting 
Zobel v. Williams, 457 U.S. 55, 59 (1982)).\3\
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    \3\ See 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).
---------------------------------------------------------------------------
    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, Sec.  8, cl. 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.
    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 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, Sec.  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, Sec. Sec.  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, Sec.  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, Sec.  7.\4\
---------------------------------------------------------------------------
    \4\ The 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, Sec.  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, Sec.  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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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'').
---------------------------------------------------------------------------
    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, Sec.  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.
---------------------------------------------------------------------------
    \6\ See, 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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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. Sec.  1561 (extending Fifteenth Amendment 
to USVI).
---------------------------------------------------------------------------
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 
``domiciliar[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, Sec.  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, Sec.  5(b); the Attorney General and 
Inspector General would need to have resided in the USVI for at least 
five years, id. art. VI, Sec. Sec.  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, Sec.  1(b). In addition, the proposed 
constitution would require that USVI Senators be ``domiciled'' in their 
legislative district ``for at least one year immediately preceding the 
first date of filing for office.'' Id. art. V, Sec.  3(c).
---------------------------------------------------------------------------
    \8\ The 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 at 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, Sec.  
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.
---------------------------------------------------------------------------
    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 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\
---------------------------------------------------------------------------
    \9\ See, e.g., City of Akron 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, 1259-60 
(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).
    \10\ See, 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. 
Freas, 871 P.2d 687, 691 (Alaska 1994) (applying heightened scrutiny 
under state constitution and invalidating three-year residence 
requirement for city council).
---------------------------------------------------------------------------
    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 here-particularly 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.
---------------------------------------------------------------------------
    \11\ See, 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'').
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C. Territorial Waters, Marine Resources, and Submerged Lands
    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'').
          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 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. Sec. Sec.  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. Sec.  1811(a) (2006). Again, the proposed constitution must be 
made consistent with this federal statutory mandate. While the final 
sentence of Article XII, 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\
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    \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 et al. (Jan. 29, 2010). Article XV, 
concerning ``Protection of the Environment,'' provides in Section 4:

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          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.
    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.
                      Attachment.--DOJ Memorandum

                        U.S. Department of Justice,
                             Office of Legislative Affairs,
                                  Washington, DC, January 18, 2001.
Hon. Frank H. Murkowski,
Chairman, Committee on Energy and Natural Resources, U.S. Senate, 
        Washington, DC.
    Dear Mr. Chairman: This is in response to your letter to President 
Clinton requesting that the Administration provide an analysis of the 
status options for Puerto Rico favored by the three principle--
political parties in Puerto Rico This letter provides comments on two 
proposals that were voted on in the December 1998 political status 
plebiscite in Puerto Rico, as well as a third proposal outlined by the 
Popular Democratic Party in its 2000 platform. The first proposal, for 
Statehood, is outlined in option number 3 in Puerto Rico's recent 
Petition to the Government of the United Stales. The second proposal, 
for Independence, is outlined in option number 4 of that petition. The 
third proposal, the ``New Commonwealth'' option, is described in the 
Popular Democratic Party platform documents. Given the complexity and 
number of proposals on which our comments have been sought, we address 
only a limited number of issues raised by the proposals, most of them 
constitutional in nature.

          1. Statehood

    The Statehood option\1\ provides that Puerto Rico would become ``a 
sovereign state, with rights, responsibilities and benefits completely 
equivalent to those enjoyed by the rest of the states.'' The principle 
that a new State stands on ``equal footing with the original States in 
all respects whatsoever'' has been recognized since the first days of 
the republic. Coyle v. Smith, 221 U.S 559, 567 (1911) (quoting 1796 
declaration upon the admission of Tennessee). Supreme Court caselaw 
makes clear that, as a State, Puerto Rico would be ``equal in power, 
dignity, and authority'' to the other States. Id. This shift in status 
to statehood would also have tax consequences not fully articulated in 
the statehood proposal itself. Currently, as an unincorporated 
territory, Puerto Rico is not subject to the Tax Uniformity Clause, 
which requires that ``all Duties, Imposts, and Excises'' imposed by 
Congress ``shall be uniform throughout the United States `` U S. Const. 
art. I, Sec.  8, cl. 1; see Downes v. Bidwell, 182 U.S. 244 (1901). As 
a result, it can be and is exempted from some federal tax laws 
(including most federal income lax laws), and it has other tax 
preferences not applicable to the States, although it also does not 
receive certain benefits such as the earned income tax credit. See 48 
U.S.C. Sec.  734 (1994) (providing that, with certain exceptions, ``the 
internal revenue laws'' shall not apply in Puerto Rico); 26 U.S.C. 
Sec.  32 (earned income tax credit). Were Puerto Rico to become a 
State, however, it would be covered by the Tax Uniformity Clause and 
many, if not all, of these different tax treatments could not 
constitutionally be preserved on a permanent basis. See Political 
Status of Puerto Rico: Hearings on S. 244 Before the Senate Comm. on 
Energy and Natural Resources, 102d Cong. 189-90 (1991) (testimony of 
Attorney General Richard Thornburgh) (``Thornburgh Testimony'') 
(reaching this conclusion, but also noting that the Tax Uniformity 
Clause permits the use of narrowly tailored transition provisions under 
which Puerto Rico's tax status need not be altered immediately once the 
decision were made to bring it into the Union as a State).
---------------------------------------------------------------------------
    \1\ The Statehood proposal contemplates a petition to Congress 
asking it to provide for the following:

    The admission of Puerto Rico into the Union of the United States of 
America as a sovereign state, with rights, responsibilities and 
benefits completely equal to those enjoyed by the rest of the states. 
Retaining, furthermore, the sovereignty of Puerto Rico in those matters 
which are not delegated by the Constitution of the United States to the 
Federal Government. The right to the presidential vote and equal 
representation in the Senate and proportional representation in the 
House of Representatives, without impairment to the representation of 
the rest of the states. Also maintaining the present Constitution of 
Puerto Rico and the same Commonwealth laws; and with permanent United 
States citizenship guaranteed by the Constitution of the United States 
of America. The provisions of the Federal law on the use of the English 
language in the agencies and courts of the Federal Government in the 
fifty states of the Union shall apply equally in the State of Puerto 
Rico, as at present.
---------------------------------------------------------------------------
    In addition, the statement in the Statehood option that admitting 
Puerto Rico as a State would not result in the ``impairment of the 
representation of the rest of the states'' may be inaccurate. If Puerto 
Rico gains representatives in Congress, it will affect the 
representation of the rest of the States in both the Senate and the 
House. In the Senate, because granting Puerto Rico two senators will 
increase the total membership of the Senate, the representation of the 
other States in the Senate will decline as a proportion of the whole, 
arguably ``impair[ing]'' their representation. Similarly, if the total 
number of representatives in the House of Representatives were to be 
increased beyond its cuerent number of 435 with the addition of 
representatives from Puerto Rico, then the representation of current 
States as a proportion of the whole would decline, again arguably 
``impair[ing]'' their representation. If, on the other hand, the total 
number of representatives were to remain fixed at 435, then the fact 
that Puerto Rico had achieved representation would necessarily mean 
that at least one State would have fewer representatives. The 
representation of that State (or States) would arguably be ``impair[ed] 
in two ways: its number of representatives in the House would decline, 
and (like all the other States) its representation would decline as a 
proportion of the whole.\2\
---------------------------------------------------------------------------
    \2\ In the past, Congress permanently increased the number of 
representatives in the House when new States were admitted. Most 
recently, however, when Hawaii and Alaska were admitted in 1959, the 
number of Members of Congress was temporarily increased (from 435 to a 
total of 437) by the addition of a representative from each of these 
States; following the 1960 census, however, the number of 
representatives returned to 435, and the House was reapportioned. See 
Comptroller General, Puerto Rico's Polilical Future: A Divisive Issue 
with Many Dimensions 103 (1981).
---------------------------------------------------------------------------
    Moreover, the clause ``maintaining the present Constitution of 
Puerto Rico and the same Commonwealth laws'' contained in the Statehood 
option could be read as stating that the admission of Puerto Rico as a 
State would have no effect on the constitution and laws of Puerto Rico. 
Such a statement might not be entirely correct. Currently, not all 
provisions of the United States Constitution are fully applicable to 
Puerto Rico. See Balzac v. Porto Rico, 258 U.S. 298, 304-314 (1922) 
(Sixth Amendment right to jury trial not applicable in Puerto Rico); 
Downes, 182 U.S. at 291 (White, J., concurring in the judgment) 
(explaining that only constitutional provisions that are ``of so 
fundamental a nature that they cannot be transgressed'' apply to 
unincorporated territories such as Puerto Rico). If Puerto Rico were to 
become a State, however, it would then be subject to the entire 
Constitution. In that event, some aspects of Puerto Rico's constitution 
and laws might be preempted by the Constitution pursuant to the 
Supremacy Clause, U.S. Const. art. VI, cl. 2. Similarly, the admission 
of Puerto Rico as a State might extend to Puerto Rico some federal 
statutes that may be deemed not to apply to Puerto Rico at present 
because they are written to apply only in the several States. If so, 
then under the Supremacy Clause those statutes would also preempt 
aspects of Puerto Rican law with which they conflict (although it 
should be noted that Congress currently has power to preempt laws of 
Puerto Rico).

          2.Independence

    The Independence proposal contains certain provisions regarding 
citizenship. Specifically, it states:

          The residents of Puerto Rico shall owe allegiance to, and 
        shall have the citizenship and nationality of, the Republic of 
        Puerto Rico. Having been born in Puerto Rico or having 
        relatives with statutory United States citiienship by birth 
        shalt no longer be grounds for United States citizenship; 
        except for those persons who already had the United States 
        citizenship, who shall have the statutory right to keep that 
        citizenship for the rest of their lives, by right or by choice, 
        as provided by the laws of the Congress of the United 
        States.This proposal could be read as having two possible 
        meanings: it could mean that persons already holding United 
        States citizenship based on their birth in Puerto Rico or on 
        the birth of their relatives have a right to that citizenship 
        and that Congress must legislate in a way that makes provision 
        for that right; or, it could mean that Congress has discretion 
        to decide whether persons who have United States citizenship by 
        virtue of their birth in Puerto Rico (or by virtue of having 
        United States citizen relatives) will retain that citizenship 
        once Puerto Rico becomes independent.\3\ At least the second 
        reading raises the question whether statutory United States 
        citizens residing in Puerto Rico at the time of independence 
        would have a constitutionally protected right to retain that 
        citizenship should Congress seek to terminate it.\4\
---------------------------------------------------------------------------
    \3\ We do not read the proposal to affect existing statutory 
provisions regarding U.S. citizenship for persons born outside the 
United States to a U.S. citizen parent or parents. See 8 U.S.C. 
Sec. Sec.  1401, 1409.
    \4\ If such persons do have a constitutionally protected right to 
retain their United States citizenship even as they acquire Puerto 
Rican citizenship, then Puerto Rican independence could result in a 
significant number of people acquiring dual citizenship. While this 
letter does not address the policy implications of such dual 
citizenship, we do not think it would run afoul of any constitutional 
stricture.
---------------------------------------------------------------------------
    Although the proposal speaks of a ``statutory right'' to retain 
citizenship,\5\ there is at least an argument that individuals 
possessing United States citizenship would have a constitutional right 
to retain that citizenship, even if they continue to reside in Puerto 
Rico after independence. See Afroyim v. Rusk, 387 U.S. 253, 257 (1967) 
(rejecting the position that Congress has a ``general power . . . to 
take away an American citizen's citizenship without his assent''). On 
the other hand, there is also case law dating from the early republic 
supporting the proposition that nationality follows sovereignty. See 
American Insurance Co. v. Canter, 26 U.S. (1 Pet.) 511, 542 (1828) 
(Marshall, C.J.) (upon the cession of a territory the relations of its 
inhabitants ``with their former sovereign are dissolved, and new 
relations are created between them, and the government which has 
acquired their territory. The same Act which transfers their country, 
transfers the allegiance of those who remain in it.''); Boyd v. 
Nebraska ex rel Thayer, 143 U.S. 135, 162 (1892) (``Manifestly the 
nationality of the inhabitants of territory acquired by . . . cession 
becomes that of the government under whose dominion they pass, subject 
to the right of election on their part to retain their former 
nationality by removal, or otherwise, as may be provided.''); United 
States ex rel Schwarzkopf v. Uhl, 137 F.2d 898, 902 (2d Cir. 1943) 
(describing Canter as recognizing a ``generally accepted principle of 
international law'' that ``[i]f the inhabitants [of a newly independent 
nation] remain within the territory [of the new nation] their 
allegiance is transferred to the new sovereign.''). See also 
Restatement (Third) of The Law of Foreign Relations Sec.  208 (1987) 
(observing that [n]ormally, the transfer of territory from one state to 
another results in a corresponding change in nationality for the 
inhabitants of that territory'' and that, in some cases of territory 
transfer, inhabitants can choose between retaining their former 
nationality and acquiring that of the new state). In view of the 
tension between Afroyim and cases such as Canter, it is unclear whether 
the Independence proposal's possible provision for congressional 
revocation of United States citizenship passes constitutional muster. 
See Treanor Testimony at 19 (reserving the constitutional issue of 
whether, upon independence, it would be permissible to terminate non-
consensually the United States citizenship of residents of Puerto 
Rico).\6\
---------------------------------------------------------------------------
    \5\ It is the Department's position that the source of the 
citizenship of those born in Puerto Rico is not the Fourteenth 
Amendment, but federal statute, specifically 8 U.S.C. Sec.  1402 
(1994). See Statement of William M. Treanor, Deputy Assistant Attorney 
General, Office of Legal Counsel, Before the House Comm. on Resources, 
106th Cong. 18 (Oct. 4, 2000) (``Treanor Testimony''); Puerto Rico: 
Hearings on H.R. 856 and S. 472 Before the Senate Comm. on Energy and 
Natural Resources, 105th Cong. 148 (1998) (statement of Randolph D. 
Moss, Acting Assistant Attorney General, Office of Legal Counsel, U.S, 
Department of Justice). That point is separate, however, from the 
question whether the Constitution protects that citizenship once it is 
statutorily conferred, and, if so, to the same extent as it protects 
``Fourteenth Amendment citizenship.''
    \6\ It should be noted that in 1991 the Department of Justice did 
not treat this question as unsettled. See Thornburgh Testimony at 206-
07 (suggesting that should Puerto Rico become independent, its 
residents ``should be required to elect between retaining United States 
citizenship (and ultimately taking up residence within the United 
States . . .),'' and citizenship in the new republic of Puerto Rico.).
---------------------------------------------------------------------------
    The Independence proposal also provides that ``Puerto Rico and the 
United States shall develop cooperation treaties, including economic 
and programmatic assistance for a reasonable period, free commerce and 
transit, and military force status.'' Viewing this language as part of 
a ballot option for the people of Puerto Rico, we understand it as a 
possible proposal to be made by Puerto Rico to Congress. We do not, 
therefore, read the use of the word ``shall'' to impose on the United 
States any obligation to enter into certain treaties with an 
independent Puerto Rico. Moreover, if the proposal did purport to 
impose such an obligation, we would construe its language as precatory, 
not binding, in order to preserve the sovereign prerogatives of the 
United States. We discuss this point in greater detail infra at 7-9.

          3. New Commonwealth\7\
---------------------------------------------------------------------------
    \7\ Our comments on the New Commonwealth proposal are based in part 
on, and are intended to be consistent with, the October 4, 2000 
testimony of Deputy Assistant Attorney General William M. Treanor 
before the House Committee on Resources. See Treanor Testimony, supra 
at n.5.

    The New Commonwealth proposal describes Puerto Rico as ``an 
autonomous political body, that is neither colonial nor territorial, in 
permanent union with the United States under a covenant that cannot be 
invalidated or altered unilaterally.'' Our analysis of this proposal is 
based on two general premises, which we will outline before proceeding 
to address specific aspects of the proposal.
    The first premise is that the Constitution recognizes only a 
limited number of options for governance of an area. Puerto Rico could 
constitutionally become a sovereign Nation, or it could remain subject 
to United States sovereignty. It can do the latter in only two ways: it 
can be admitted into the Union as a State, U.S. Const. art. IV, Sec.  
3, cl. 1, or it can remain subject to the authority of Congress under 
the Territory Clause, U.S. Const. art. IV, Sec.  3, cl. 2. See National 
Bank v. County of Yankton, 101 U.S. 129, 133 (1879) (``All territory 
within the jurisdiction of the United States not included in any State 
must necessarily be governed by or under the authority of Congress.''). 
The terms of the Constitution do not contemplate an option other than 
sovereign independence, statehood, or territorial status.
    Although Puerto Rico currently possesses significant autonomy and 
powers of self-government in local matters pursuant to the Puerto Rican 
Federal Relations Act, Pub. L. No. 81-600, 64 Stat. 319 (1950) 
(codified at 48 U.S.C. Sec. Sec.  73 lb-731e (1994)) (``Public Law 
600''), that statute did not take Puerto Rico outside the ambit of the 
Territory Clause. In Harris v. Rosario, 446 U.S. 651 (1980) (per 
curiam), for example, the Court sustained a level of assistance for 
Puerto Rico under the Aid to Families with Dependent Children program 
lower than that which States received, and explained that ``Congress, 
which is empowered under the Territory Clause of the Constitution to 
`make all needful Rules and Regulations respecting the Territory ... 
belonging to the United States,' may treat Puerto Rico differently from 
States so long as there is a rational basis for its actions.'' Id. at 
651-52 (internal citation omitted). See also Califano v. Torres, 435 
U.S. 1, 3 n.4 (1978) (per curiam) (``Congress has the power to treat 
Puerto Rico differently, and , .. every federal program does not have 
to be extended to it.''). The Department of Justice has long taken the 
same view,\8\ and the weight of appellate case law provides further 
support for it. See, e.g., Mercado v. Commonwealth of Puerto Rico, 214 
F.3d 34, 44 (1st Cir. 2000) (``[U]nder the Territorial Clause, Congress 
may legislate for Puerto Rico differently than for the states.''); 
Davila-Perez v. Lockheed Martin Corp., 202 F.3d 464, 468 (1st Cir. 
2000) (affirming that Puerto Rico ``is still subject to the plenary 
powers of Congress under the territorial clause.''); United States v. 
Sanchez, 992 F.2d 1143, 1152-53 (11th Cir. 1993) (```Congress continues 
to be the ultimate source of power [over Puerto Rico] pursuant to the 
Territory Clause of the Constitution.''') (quoting United States v. 
Andino, 831 F.2d 1164, 1176 (1st Cir. 1987) (Torruella, J., 
concurring), cert. denied, 486 U.S. 1034 (1988)), cert. denied, 510 
U.S. 1110 (1994).\9\
---------------------------------------------------------------------------
    \8\ This position has been expressed in briefs filed in federal 
court by past Solicitors General. See, e g., Jurisdictional Statement 
of the United States at 10-11, Harris v. Rosario, 446 U.S. 651 (1980) 
(No. 79-1294). It has also been taken in memoranda and opinions issued 
by the Office of Legal Counsel. See, e.g., Memoranda for Linda 
Cinciotta, Director, Office of Attorney Personnel Management, from 
Richard L. Shiffrin, Deputy Assistant Attorney General, Office of Legal 
Counsel, Re. Interpretation of the Term ``Territory'' in the Department 
of Justice Appropriations Act (July 31, 1997); Memorandum for Lawrence 
E. Walsh, Deputy Attorney General, from Paul A. Sweeney, Acting 
Assistant Attorney General, Office of Legal Counsel, Re: H.R. 5926, 
86th Cong., 1st Sess., a bill ''To provide for amendments to the 
compact between the people of Puerto Rico and the United States'' (June 
5, 1959). In a 1963 opinion, the Office of Legal Counsel treated the 
legal consequences of Public Law 600 as an open question and did not 
resolve it. See Memorandum Re: Power of the United Stales to Conclude 
with the Commonwealth of Puerto Rico a Compact Which Could Be Modified 
Only by Mutual Consent (July 23, 1963).
    \9\ We acknowledge, however, that the First Circuit has not always 
spoken with a single voice on this question. See, e.g., United States 
v. Andino, 831 F.2d 1164 (1st Cir. 1987) (prevailing opinion), cert. 
denied, 486 U.S. 1034 (1988)); United States v. Quinones, 758 F.2d 40, 
42 (1st Cir. 1985) (``[I]n 1952, Puerto Rico ceased being a territory 
of the United States subject to the plenary powers of Congress as 
provided in the Federal Constitution.''); Cordova & Simonpietri Ins. 
Agency Inc. v. Chase Manhattan Bank N.A., 649 F.2d 36, 4 l (1st Cir. 
1981) (Breyer, J.) (stating that following the passage of Public Law 
600, ``Puerto Rico's status changed from that of a mere territory to 
the unique status of Commonwealth.''); Figueroa v. People of Puerto 
Rico, 232 F.2d 615, 620 (1st Cir. 1956) (Magruder, J.) (maintaining 
that to say that Public Law 600 was ``just another Organic Act'' for 
Puerto Rico would be to say that Congress had perpetrated a 
``monumental hoax'' on the Puerto Rican people). Notwithstanding these 
inconsistencies, we believe the more recent First Circuit and other 
appellate decisions correctly state the law and properly recognize that 
the Supreme Court's decision in Harris is controlling.
    We also acknowledge that the Federal Circuit's opinion in Romero v, 
United States, 38 F.3d 1204 (Fed. Cir. 1994), found that, for purposes 
of 5 U.S.C. Sec.  5517, Puerto Rico is not a ``State,'' ``territory,'' 
or ``possession.'' We read that opinion as addressing questions 
regarding the terms of that particular statute alone.
---------------------------------------------------------------------------
    The second premise is that, as a matter of domestic constitutional 
law, the United States cannot irrevocably surrender an essential 
attribute of its sovereignty. See United States v. Winstar Corp., 518 
U.S. 839, 888 (1996) (The United States ``may not contract away `an 
essential attribute of its sovereignty.''') (quoting United States 
Trust Co. v. New Jersey, 431 U.S. 1, 23 (1977)); Burnet v. Brooks, 288 
U.S. 378, 396 (1933) (``As a nation with all the attributes of 
sovereignty, the United States is vested with all the powers of 
government necessary to maintain an effective control of international 
relations.''). This premise is reflected in the rule that, in general, 
one Congress cannot irrevocably bind subsequent Congresses. See Marbury 
v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803) (Marshall, C. J.) (noting 
that legislative acts are ``alterable when the legislature shall please 
to alter [them].''); see also Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 
135 (1810) (Marshall, C.J.) (recognizing the general rule that ``one 
legislature is competent to repeal any act which a former legislature 
was competent to pass; and that one legislature cannot abridge the 
powers of a succeeding legislature,'' while holding that vested rights 
are protected against subsequent congressional enactments). Moreover, 
as the Supreme Court has recognized, treaties and other covenants to 
which the United States is party stand, for constitutional purposes, on 
the same footing as federal legislation. See Breard v. Greene, 523 U.S. 
371, 376 (1998) (per curiam) (``We have held `that an Act of Congress . 
. . is on a full parity with a treaty, and that when a statute which is 
subsequent in time is inconsistent with a treaty, the statute to the 
extent of conflict renders the treaty null.''') (quoting Reid v. 
Covert, 354 U.S. 1, 18 (1957) (plurality opinion)). Thus, to the extent 
a covenant to which the United States is party stands on no stronger 
footing than an Act of Congress, it is, for purposes of federal 
constitutional law, subject to unilateral alteration or revocation by 
subsequent Acts of Congress. As the Court explained in Whitney v. 
Robertson, 124 U.S. 190, 194 (1888):

          When the stipulations [of a treaty] are not self-executing 
        they can only be enforced pursuant to legislation to carry them 
        into effect, and such legislation is as much subject to 
        modification and repeal by Congress as legislation upon any 
        other subject. If the treaty contains stipulations which are 
        self-executing, that is, require no legislation to make them 
        operative, to that extent they have the force and effect of a 
        legislative enactment. Congress may modify such provisions, so 
        far as they bind the United States, or supersede them 
        altogether.

    This second premise applies to the exercise of presidential powers 
as well as to the exercise of congressional powers. Thus, a compact 
could not constitutionally limit the President's power to terminate 
treaties by requiring that he not exercise that power in the context of 
that compact without first obtaining the consent of the other 
signatories to the compact. Cf. United States v Curtiss-Wright Export 
Corp., 299 U.S. 304, 320 (1936) (President has ``plenary and exclusive 
power . . . as the sole organ of the federal government in the field of 
international relations''); Goldwater v. Carter, 617 F.2d 697, 703-09 
(D.C. Cir.) (en banc), rev'd on other grounds, 444 U.S. 996 (1979) 
(finding that the President has constitutional authority to terminate a 
treaty); Goldwater, 444 U.S. at 1007 (Brennan, J., dissenting) 
(President's power to recognize the People's Republic of China entailed 
power to abrogate existing defense treaty with Taiwan).
    With these two premises established, we turn now to analyzing the 
New Commonwealth proposal. The threshold point to consider is what type 
of status the proposal contemplates for Puerto Rico. Parts of the New 
Commonwealth proposal appear to contemplate Puerto Rico's becoming an 
independent Nation,\10\ while others contemplate Puerto Rico's 
remaining subject to United States sovereignty to some degree).\11\ To 
the extent that the proposal would thereby create for Puerto Rico a 
hybrid status, it runs afoul of the first premise discussed above. The 
proposal must be assessed against the constitutionally permissible 
status categories that exist, and the precise nature of the 
constitutional issues raised by the proposal turns in part on whether 
it is understood to recognize Puerto Rico as a sovereign nation or to 
maintain United States sovereignty over Puerto Rico.
---------------------------------------------------------------------------
    \10\ See, e.g., Preamble (referring to Puerto Rico as a ``nation,'' 
and describing the ``natural right to self government'' and ``free 
will'' of the people of Puerto Rico as ``ultimate sources of their 
political power''); Article V(B) (referring to Puerto Rico's authority 
over international matters).
    \11\ See, e.g., Preamble (describing Puerto Rico as being, ``in 
permanent union with the United States''); Article II (providing for 
continued United States citizenship for persons born in Puerto Rico); 
Article VIII (providing for federal court jurisdiction over matters 
arising from ``provisions of the Constitution of the United States and 
of the Federal laws that apply to Puerto Rico consistent with this 
Covenant and not in violation [of] the laws of the Constitution of 
Puerto Rico''); Article XIII (providing that the Resident Commissioner 
of Puerto Rico shall be ``considered a Member of the U.S. House of 
Representatives'' for certain purposes).
---------------------------------------------------------------------------
    First, regardless of whether the New Commonwealth proposal 
contemplates full Puerto Rican independence or continued United States 
sovereignty over Puerto Rico, the proposal's mutual consent provisions 
are constitutionally unenforceable. Article X of the proposal specifies 
that the New Commonwealth will be implemented pursuant to an 
``agreement between the people of Puerto Rico and the government of the 
United States,'' and provides that the agreement will have the force of 
a ``bilateral covenant . . . based on mutual consent, that cannot be 
unilaterally renounced or altered.\12\ If the proposal is read to 
maintain United States sovereignty over Puerto Rico, then, since the 
``enhanced'' Commonwealth it contemplates would not be a State, it 
would necessarily remain subject to congressional power under the 
Territory Clause. It follows, then, that Congress could later 
unilaterally alter the terms of the covenant between the United States 
and Puerto Rico. See District of Columbia v. John R. Thompson Co., 346 
U.S. 100, 106 (1953) (explaining that delegations of power from one 
Congress to the government of a territory are generally subject to 
revision, alteration, or revocation by a later Congress); see also 
Thornburgh Testimony at 194 (stating that proposed legislation 
conferring on Puerto Rico ``sovereignty, like a State'' and making that 
status irrevocable absent mutual consent was ``totally inconsistent 
with the Constitution'').\13\
---------------------------------------------------------------------------
    \12\ This mutual consent requirement appears in a number of places 
throughout the proposal. The Preamble states that Puerto Rico shall 
remain ``in permanent union with the United States under a covenant 
that cannot be invalidated or altered unilaterally.'' Article II(A) 
provides that ``[p]eople born in Puerto Rico will continue to be 
citizens of the United States by birth,' and specifics that this rule 
``will not be unilaterally revokable''). See also Article XIII(e) 
(prohibiting unilateral alteration of the covenant by the United States 
by providing that ``[a]ny change to the terms of this Covenant will 
have to be approved by the people of Puerto Rico in a special vote 
conducted consistent with its democratic processes and 
institutions.'').
    \13\ Under the approach set forth in Fletcher v. Peck, 10 U.S. (6 
Cranch) 87 (1810), a different result would be warranted if the 
covenant called for in the New Commonwealth proposal had the effect of 
vesting rights in Puerto Rico's status as a commonwealth or in an 
element of that status, such as the mutual consent requirement. It is 
true that in 1963, the Office of Legal Counsel concluded that a mutual 
consent provision would be constitutional because Congress could vest 
rights in political status. See Memorandum Re: Power of the United 
States to Conclude with the Commonwealth of Puerto Rico a Compact which 
Could be Modified Only by Mutual Consent (July 23, 1963). But the 
Justice Department altered its position on that question during the 
administration of President Bush, see Thornburgh Testimony at 194, and 
the Office of Legal Counsel now adheres to that position. See Treanor 
Testimony at 15-16; Memorandum for the Special Representative for Guam 
from Teresa Roseborough, Deputy Assistant Attorney General, Office of 
Legal Counsel, Re: Mutual Consent Provisions in the Guam Commonwealth 
Legislation (July 28, 1994).
    Two independent grounds support out current position that rights 
may not be vested in political status. First, after the issuance of the 
Department's 1963 opinion, the Supreme Court concluded that the Fifth 
Amendment's guarantee of due process applies only to persons and not to 
States. See South Carolina v. Katzenbach, 383 U.S. 301, 373-24 (1966). 
While Katzenbach was concerned with a State, its rationale suggests 
that a governmental body, including a territory such as Puerto Rico, 
could not assert rights under the Due Process Clause. Second, the 
modern Supreme Court case law concerning vested rights is limited in 
scope. While the Court has recognized that economic rights are 
protected under the Due Process Clause, see, e.g., Lynch v. United 
States, 292 U.S. 571 (1934), the case law does not support the view 
that there would be Fifth Amendment vested rights in a political status 
for a governmental body that is not itself provided for in the 
Constitution. Cf Bowen v. Public Agencies Opposed to Social Security 
Entrapment, 477 U.S. 41, 55 (1986) (``[T]he contractual right at issue 
in this case bears little, if any, resemblance to rights held to 
constitute `property' within the meaning of the Fifth Amendment.... The 
provision simply cannot be viewed as conferring any sort of `vested 
right' in the fact of precedent concerning the effect of Congress' 
reserved power on agreements entered into under a statute containing 
the language of reservation.'').
---------------------------------------------------------------------------
    If Puerto Rico is to become an independent nation under the New 
Commonwealth proposal, then the relationship between the United States 
and Puerto Rico would necessarily be subject to subsequent action by 
Congress or the President, even without Puerto Rico's consent. As a 
general matter, a treaty cannot, for purposes of domestic 
constitutional law, irrevocably bind the United States, See supra at 7-
8. In particular, because the power to make and unmake treaties is 
``inherently inseparable from the conception'' of national sovereignty, 
Curtiss-Wright Export Corp., 299 U.S. at 318, it can not be contracted 
away. Thus, if Puerto Rico were to become independent, the New 
Commonwealth proposal's mutual consent requirements would be 
constitutionally unenforceable against the United States.\14\
---------------------------------------------------------------------------
    \14\ It is a separate question whether, or to what extent, the New 
Commonwealth proposal's mutual consent requirements would be binding 
under international law, and we do not address that question here.
---------------------------------------------------------------------------
    The New Commonwealth proposal also contains certain provisions 
regarding the retention of United States citizenship. Specifically, it 
provides that ``[p]eople born in Puerto Rico will continue to be 
citizens of the United States by birth and this citizenship will 
continue to be protected by the Constitution of the United States and 
by this Covenant and will not be unilaterally revokable.''
    This provision could be read in two different ways, First, it could 
be read as concerned only with persons born in Puerto Rico after the 
New Commonwealth proposal goes into effect. Understood as limited to 
these individuals, the proposal would confer United States citizenship 
on them unless and until Puerto Rico and the United States mutually 
agree to revoke it. Second, the text could be read as addressing the 
United States citizenship of all persons born in Puerto Rico, whether 
before or after the New Corrunonwealth proposal goes into effect.\15\ 
Under this second reading, the proposal would preserve these 
individuals' citizenship subject to revocation by the mutual consent of 
Puerto Rico and the United States.
---------------------------------------------------------------------------
    \15\ One limitation to the scope of the clause should be noted: 
presumably it is not intended to apply to those residing outside of 
Puerto Rico at the time the proposal took effect.
---------------------------------------------------------------------------
    With respect to either reading, the mutual consent stipulation 
(i.e. that the grant of citizenship cannot be altered except by mutual 
consent) is, for the reasons discussed above, see supra at 8-9, 
constitutionally unenforceable. If that stipulation is set aside, the 
provision then reads as a simple grant of citizenship to certain 
persons born in Puerto Rico--either those born in Puerto Rico after the 
New Commonwealth proposal goes into effect, or all those born in Puerto 
Rico before and after such time. We see no constitutional impediment 
with that provision, regardless of how broadly it is read. However, 
whether that provision is itself alterable by a subsequent Act of 
Congress becomes a question of whether the United States citizenship of 
the persons covered by the provision is constitutionally protected. The 
answer to that question depends on how the provision is read (that is, 
whether it is read as addressing those born in Puerto Rico in the 
future, or as covering those already born in Puerto Rico, or both),\16\ 
and may also depend on whether the New Commonwealth proposal in general 
is understood as creating an independent nation or as maintaining 
United States sovereignty over Puerto Rico.
---------------------------------------------------------------------------
    \16\ The proposal might also be read to refer to people born in 
Puerto Rico in the future, but before any future action by Congress to 
cease extending citizenship to persons born in Puerto Rico. Identifying 
the precise constitutional considerations relevant to that reading of 
the proposal would require further study.
---------------------------------------------------------------------------
    We first address whether there would be any constitutional 
constraints on Congress's authority to provide that persons born in 
Puerto Rico in the future would not acquire United States citizenship 
by virtue of their birth in Puerto Rico. If Puerto Rico is to become an 
independent nation, then, while Congress may well have the power to 
provide (as the New Commonwealth proposal appears to contemplate) that 
persons born in Puerto Rico in the future shall acquire United States 
citizenship, we think Congress could also change that rule and provide 
that, in the future, birth in Puerto Rico shall no longer be a basis 
for United States citizenship.\17\ If, however, Puerto Rico is to 
remain subject to United States sovereignty, then the answer is less 
clear. We are unaware of any case addressing the power of Congress to 
withhold prospectively non-Fourteenth Amendment citizenship from those 
born in an area subject to United States sovereignty, when persons 
previously born in that area received statutory citizenship by 
birthright, and we think it is unclear how a court would resolve that 
issue.
---------------------------------------------------------------------------
    \17\ We do not, however, address whether Congress could also 
exclude residents of Puerto Rico from other statutory sources of United 
States citizenship, such as being born abroad to a United States 
citizen parent or parents.
---------------------------------------------------------------------------
    Next, we consider whether the Constitution would permit Congress to 
revoke the United States citizenship of persons who already have such 
citizenship because they were born in Puerto Rico. If the New 
Commonwealth proposal is understood to maintain United States 
sovereignty over Puerto Rico, then we think Congress could not revoke 
the United States citizenship of persons who already possess that 
citizenship by virtue of their birth in Puerto Rico. As the Court 
explained in Afroyim, Congress lacks a ``general power . . . to take 
away an American citizen's citizenship without his assent.'' 387 U.S. 
at 257. While not squarely faced with a case of statutory citizenship, 
the Court in Afroyim did not limit its decision to persons whose 
citizenship is based on the Fourteenth Amendment, and we think it 
should not be so confined.\18\ Accordingly, while we find no 
constitutional impediment in the New Commonwealth proposal's provision 
that those born in Puerto Rico will retain their citizenship in the 
future, we do think that to the extent Puerto Rico is to remain subject 
to United States sovereignty, the provision is redundant (or at best 
declaratory) of an underlying constitutional requirement that such 
citizenship not be revoked once it is granted. If, on the other hand, 
Puerto Rico were to become an independent nation under the New 
Commonwealth proposal, then, as we noted in our discussion of the 
Independence proposal's treatment of citizenship, see supra at 4-5, it 
is unclear whether Congress could revoke the U.S. citizenship of 
persons already holding such citizenship at the time of independence. 
There is an argument that the Constitution would ensure that those who 
possessed United States citizenship at the time of Puerto Rican 
independence must he able to retain that citizenship after 
independence, see Afroyim, 387 U.S at 257, but there is also case law 
supporting the proposition that nationality follows the flag. See 
Canter, 26 U.S. at 542. As noted, it is unclear how a court would 
resolve this issue.
---------------------------------------------------------------------------
    \18\ A counter-argument might be made based on the Supreme Court's 
decision in Rogers v. Bellei, 401 U.S. 815 (1971), which upheld the 
loss of citizenship of an individual who was born in Italy and who 
acquired citizenship under a federal statute because one of his parents 
was an American citizen. The statute required that persons claiming 
citizenship on that basis meet certain requirements of residency in the 
United States prior to their twenty-eighth birthday. The Rogers Court 
upheld the statute's provision for loss of citizenship for those who 
failed to meet the residency requirement. While the Rogers Court 
criticized Afroyim's language concerning non-Fourteenth Amendment 
citizenship and based its own holding in part on the fact that Belles 
citizenship was not conferred pursuant to the Fourteenth Amendment, see 
401 U.S. at 835, Rogers is best understood as addressing the legitimacy 
of pre-established requirements for statutorily conferred citizenship 
(including conditions subsequent such as the residency by age 28 
requirement) when Congress grants citizenship to those who would not 
otherwise receive it directly by operation of the Fourteenth Amendment. 
That issue--of the legitimacy of pre-established requirements--is not 
relevant to Congress's powers to divest citizenship once it has been 
unconditionally conferred. Afroyim thus appears to be the most relevant 
precedent, and it supports the view that, so long as Puerto Rico 
remains under United States sovereignty, citizenship that has been 
granted is constitutionally protected.
---------------------------------------------------------------------------
    The New Commonwealth proposal also provides for the election of a 
Resident Commissioner to ``represent Puerto Rico before the Government 
of the United States and who will be considered a Member of the U.S. 
House of Representatives for purposes of all legislative matters that 
have to do with Puerto Rico.'' The applicable provision of the 
Constitution--Article I, Section 2, Clause 1--provides that the House 
of Representatives ``shall be composed of Members chosen every second 
Year by the People of the several States.'' (emphasis added). On its 
face, that provision would seem to mean that the Resident Commissioner 
from Puerto Rico could not be ``considered a Member'' of the House 
because, under the New Commonwealth proposal, Puerto Rico would not be 
a ``State.'' While Congress has the ability to permit participation by 
representatives of the territories, see Michel v. Anderson, 14 F.3d 
623, 630-32 (D.C. Cir. 1994) (holding that the House of Representatives 
had the authority to permit a territorial delegate (including the 
Resident Commissioner from Puerto Rico) to vote in the House's 
committees, including the Committee of the Whole), there are 
constitutional limits to the participation that would be permitted.
    The New Commonwealth proposal contains a number of other provisions 
that may raise particular constitutional concerns if the proposal 
contemplates Puerto Rico remaining subject to United States 
sovereignty. The proposal authorizes Puerto Rico to ``enter into 
commercial and tax agreements, among others, with other countries,'' 
and to ``enter into international agreements and belong to regional and 
international organizations.'' The Constitution vests the foreign 
relations power of the United States, which includes the power to enter 
into treaties, in the federal government. Curtiss-Wright Export Corp., 
299 U.S. at 318. Specifically, Article I, Section 10, Clause 1 (the 
``Treaty Clause'') prohibits States from entering into ``any Treaty, 
Alliance, or Confederation.'' Under Article I, Section 10, Clause 3 
(the ``Compact Clause''), however, States are permitted, if authorized 
by Congress, to ``enter into any Agreement or Compact ... with a 
foreign Power.'' Read against the backdrop of these constitutional 
provisions, the New Commonwealth proposal raises several issues.
    First, it is unclear whether either the Treaty Clause or the 
Compact Clause applies to Puerto Rico, since both clauses refer only to 
``State[s].'' What little case law there is on this question is not in 
agreement. Compare Venable v. Thornburgh, 766 F. Supp. 1012, 1013 (D. 
Kan. 1991) (stating in dicta that ``the compact clause addresses 
agreements between the states, territories and the District of 
Columbia.''), with Mora v. Torres, 113 F. Supp. 309, 315 (D. P.R ) 
(concluding that ``Puerto Rico is not a State, and the compact clause, 
as such, is not applicable to it''), aff 'd, 206 F.2d 377 (1st Cir. 
1953). If the two clauses do apply to Puerto Rico, then presumably the 
Compact Clause's provision for congressional authorization to enter 
into ``Agreement[s] or Compact[s]'' applies to Puerto Rico. Second, 
even if Congress may consent to Puerto Rico's entry into ``Agreement[s] 
or Compact[s),'' it is not clear that the ``commercial and tax 
agreements'' and ``international agreements and ... regional and 
international organizations'' referred to in the New Commonwealth 
proposal would all constitute ``Agreement[s] or Compact[s]'' to which 
Congress may give its consent. As the Supreme Court has noted, the 
constitutional distinction between ``Agreement[s] [and] Compact[s],'' 
on the one hand, and ``Treat[ies], Alliance[s], [and] 
Confederation[s],'' on the other, is not easily discerned. See U.S. 
Steel Corp v. Multistate Tax Comm 'n, 434 U.S. 452, 461-62 (1978) 
(noting that ``the Framers used the words `treaty,' `compact,' and 
`agreement' as terms of art, for which no explanation was required and 
with which we are unfamiliar.'').\19\ Some ``commercial and tax 
agreements'' would be likely to qualify as ``Agreement[s] or 
Compact[s]'' under Article I, Section 10, Clause 3 of the Constitution. 
If so, then Congress may be able to authorize Puerto Rico to enter into 
such agreements. The status of the ``international agreements and ... 
regional and international organizations'' referred to in the New 
Commonwealth proposal, however, is less clear. At least some of the 
agreements embraced in this phrase might constitute ``Treat[ies], 
Alliance[s], or Confederation[s]'' under Article I, Section 10, Clause 
1. If so, then Puerto Rico may not constitutionally enter into them, 
with or without congressional consent. Third, even assuming Congress 
may authorize Puerto Rico to enter into at least some of the types of 
international agreements referenced in the New Commonwealth proposal, 
it is unclear whether Congress could, as apparently contemplated by the 
proposal, give Puerto Rico prospective blanket authorization to 
conclude such agreements. Although it is our view that, under the 
Compact Clause, Congress may consent in advance to a State's entering 
into certain international agreements,\20\ there would still be a 
question whether advance consent over such a broad and unspecified 
range of agreements as is contemplated here would be an impermissible 
use of Congress's power.\21\
---------------------------------------------------------------------------
    \19\ On one account (which traces back to Justice Story) of the 
distinction between the Treaty and Compact Clauses, the Treaty Clause's 
categorical prohibition refers to agreements of a political character 
such as one Nation would make with another, while the conditional 
prohibition of the Compact Clause on agreements with foreign countries 
refers to arrangements regarding the private rights of sovereigns, such 
as adjusting boundaries, making territorial acquisitions in another 
State, or harmonizing the internal regulations of bordering States. See 
Louisiana v, Texas. 176 U.S. 1, 16-18 (1900) (outlining Story's 
theory); Virginia v. Tennessee, 148 U.S. 503, 519-20 (1893) (same). 
Agreements between Puerto Rico and foreign countries regarding taxation 
and commerce seem unlikely to concern private sovereign rights; a 
fortiori, international agreements and membership in international or 
regional organizations would seem to be political in character. On this 
theory, therefore, the Treaty Clause, if applicable to Puerto Rico, 
could well bar all forms of international agreements mentioned in the 
bill.
    \20\ See Letter for the Hon. Caspar W. Weinberger, Director, Office 
of Management & Budget, from Ralph E. Erickson, Deputy Attorney General 
(Sept. 19, 1972); Memorandum for Nicholas deB. Katzenbach, Deputy 
Attorney General, from Norbert A, Schlei, Assistant Attorney General, 
Office of Legal Counsel, Re: Draft bill ``To authorize the construction 
of certain international bridges,'' the proposed International Bridge 
Act of 1963 (July 18, 1963). The case law accords with that conclusion. 
See Cuyler v. Adams, 449 U.S. 433, 441 (1981) (advance congressional 
consent to certain interstate compacts relating to crime prevention and 
law enforcement); Seattle Master Builders Ass'n v. Pacific Northwest 
Power and Conservation Council, 786 F,2d 1359, 1363 (9th Cir. 1986) 
(even if advance congressional consent were ``unusual,'' it would not 
be unconstitutional), cert. denied, 479 U.S. 1059 (1987); see generally 
Virginia v. Tennessee, 148 U.S. at 521 (``The Constitution does not 
state when the consent of congress shall be given, whether it shall 
precede or may follow the compact made. . . . In many cases the consent 
will usually precede the compact or agreement.'').
    \21\ We have found little authority addressing the scope of 
permissible congressional delegation under the Compact Clause, and we 
note that potential ``delegation'' problems might arise whether or not 
the Compact Clause were thought to apply to Puerto Rico. Compare Milk 
Industry Found. v Glickman, 132 F.3d 1467, 1473-78 (D.C. Cir. 1998) 
(analyzing issue arising under Compact Clause of delegation of 
authority to Executive Department), with Philippine Islands--Postal 
Service, 29 Op. Att'y Gen. 380 (1912) (analyzing without reference to 
Compact Clause whether Congress could delegate to government of 
Philippine Islands authority to negotiate and enter into international 
postal conventions). In either case, the breadth of the delegation 
contemplated here might raise constitutional concerns.
---------------------------------------------------------------------------
    Finally if Puerto Rico remains subject to United States 
sovereignty, the provision that Puerto Rico would ``retain[] all the 
powers that have not been delegated to the United States'' rests on a 
constitutionally flawed premise. This provision appears to attempt to 
create for Puerto Rico an analogue to the Tenth Amendment. But the 
legislative powers of a non-State region under the sovereignty of the 
United States are entirely vested in Congress. Because territories are 
created by the Nation, as a matter of constitutional law they can not 
delegate power to the Nation. As Chief Justice Marshall explained in 
Canter, ``[i]n legislating for [the territories], Congress exercises 
the combined powers of the general, and of a state government.'' 26 
U.S. at 546. And while Congress may delegate some of its powers over a 
territory to the territory itself, such delegation is, as discussed 
supra at 7-8, always subject to Congress's own plenary power to revise, 
alter, or revoke that authority. See Thompson, 346 U.S. at 106, 109; 
United States v. Sharpnack, 355 U.S. 286, 296 (1958).\22\
---------------------------------------------------------------------------
    \22\ Other provisions of the Commonwealth proposal may present 
constitutional concerns. Article VIII makes jurisdiction of federal 
courts subject to the provisions of the Constitution of Puerto Rico, 
and article XIII concerns the creation of a mechanism by which 
application of United States laws to Puerto Rico will be subject to the 
laws of Puerto Rico.
---------------------------------------------------------------------------
    We hope this information is helpful to you. Please do not hesitate 
to contact me if I can be of further assistance.
            Sincerely,
                                              Robert Raben,
                                        Assistant Attorney General.

    The Chairman. Yes, Mr. Silk, go right ahead. We're glad to 
have you here.

    STATEMENT OF JOHN M. SILK, MINISTER OF FOREIGN AFFAIRS, 
                REPUBLIC OF THE MARSHALL ISLANDS

    Mr. Silk. Thank you, Mr. Chairman. On behalf of the 
President Jurelang Zedkaia, the Government and people of the 
Republic of the Marshall Islands, it is my privilege and 
pleasure to be able to testify before your committee here 
today, on S. 2941, The Republic of the Marshall Islands 
Supplemental Nuclear Compensation Act of 2010.
    Mr. Chairman, I would also like to take this opportunity, 
on behalf of President Zedkaia, to thank you for our meeting 
yesterday. You have always been a good friend to the Marshall 
Islands, and we greatly appreciate your assistance.
    Mr. Chairman, S. 2941 was introduced on January 28, 2010. 
It's identical to the original version of S. 1756, which you 
introduced in 2007, at the request of President Note. Although 
a new draft of S. 1756 was presented to the RMI as a complete 
substitute after a hearing before your Honorable Committee on 
September 25, 2007, I will speak to the present S. 2941.
    While we appreciate the efforts of the Department of Energy 
with the people of Enewetak to provide monitoring of the 
nuclear waste storage facility at Runit, it is clear that the 
responsibility for monitoring and oversight needs to be 
institutionalized within the U.S. Government. In this 
connection, we support the provisions of S. 2941 to require a 
radiological survey of Runit to ensure that it is secure and 
that seepage or environmental contamination is not taking 
place, along with this committee's maintaining oversight in the 
reporting of these surveys.
    The RMI also appreciates the inclusion of the former tri-
territory citizens to participate in a Department of Labor 
Healthcare and Compensation Program for Department of Energy 
employees who contracted cancer after exposure to occupational 
sources of radiation. S. 2941 makes provisions for the National 
Academy of Sciences to conduct an assessment of the health 
impacts of the nuclear testing program on the residents of the 
RMI. The RMI hopes that this study could consider all data and 
analysis sent relating to analysis relating to those 
reconstruction exposure pathways and potential health outcomes. 
The RMI strongly supports this assessment.
    S. 2941 appropriates the sum of $2 million annually, as 
adjusted for inflation, in accordance with section 218 of the 
RMI-U.S. compact for purposes of providing primary healthcare 
to the Four Atoll communities. The RMI government welcomes and 
fully supports this measure, and wishes to thank the Chairman 
for making this a permanent rather than a discretionary 
appropriation.
    Nonetheless, as I note in my written statement, Mr. 
Chairman, healthcare funding for cancers attributable to the 
nuclear testing program, have steadily declined since the mid-
1980s. Despite the findings of the NCI and the PCP, regarding 
continuing healthcare burdens caused by the nuclear testing 
program on the Marshallese people.
    In addition, the compact, as amended, excluded any 
consideration of healthcare impacts of the nuclear testing 
program. I can only ask that Congress, under the commitment 
made in section 177 agreement, and take action on these 
important issues. Many Marshallese have died from the 
consequences of the nuclear testing program without receiving 
adequate medical care. While the U.S. continues to expand and 
increase assistance to its own citizens, we have suffered from 
exposure to radiation. Assistance to Marshallese has declined 
considerably. We recall that after the hearing in 2007, this 
committee took steps to address these issues in a meaningful 
manner, by improving the provisions of the original version of 
S. 1756.
    We hope that this will happen again, after today's hearing 
on S. 2941.
    Finally, Mr. Chairman, the fact is that the United States 
nuclear testing program was the marking point of our modern 
history. Our islands and our institutions reflect the chaos and 
problems caused by extensive contamination, public health 
crisis, and upheaval--and the upheaval and repeated relocation 
of several populations. Nonetheless, we do not hold the present 
generation of the American people personally responsible for 
what their forefathers did or failed to do to our people.
    I submit to you, Chairman, that as much as we had--as much 
as you, we had no control or say over the politics of the cold 
war, and the consequences of the nuclear arms race. However, 
this generation of Americans are the inheritors of the richest 
and most powerful country in the world.
    If indeed the United States has closer relationship with 
any nation in the world than it has through compact of free 
association with the RMI, as openly stated by numerous 
government officials, then I pray, on behalf of my government 
and people, that our calls may not fall on deaf ears. I further 
pray, Mr. Chairman, that this generation of Americans will have 
the courage and the will to rise above the past and make a 
difference, rather than to allow itself to remain controlled by 
the past and make excuses.
    Mr. Chairman, we Marshallese and Americans can and must 
work together to bring closure to the legacy of the nuclear 
testing. I believe that together we can further the respect and 
mutual understanding between our 2 peoples, and bequest to our 
grandchildren the promise of a better future.
    Thank you, Mr. Chairman. I would be pleased to answer any 
questions.
    [The prepared statement of Mr. Silk follows:]

   Prepared Statement of John M. Silk, Minister of Foreign Affairs, 
                    Republic of the Marshall Islands
    Mr. Chairman, Distinguished Members of the Senate Committee on 
Energy and Natural Resources, Ladies and Gentlemen:
    Thank you for the opportunity to appear before you today. His 
Excellency President Jurelang Zedkaia once again takes this opportunity 
to personally thank you Chairman Bingaman for introducing S. 2941, the 
Republic of the Marshall Islands Supplemental Nuclear Compensation Act 
of 2010, and for convening this hearing so that we may present our 
views on this most important and historic legislation.
    I would also like to take this opportunity to recognize other 
members of our delegation present here today, and to thank them for 
their presence and contributions.
S.2941, Republic of the Marshall Islands Supplemental Nuclear 
        Compensation Act of 2010
    There is no question that the U.S. Government's detonation of 
sixty-seven atmospheric nuclear weapons in our country created profound 
disruptions to human health, the environment, as well as our economy, 
culture, political system, and virtually every aspect of life. The U.S. 
nuclear weapons testing program was the marking period of our modern 
history; the trajectory of our people, our islands, and our 
institutions reflect the chaos and problems caused by extensive 
contamination, public health crises, and the upheaval and repeated 
relocation of several populations.
    A small country with seventy square miles of land, and only six 
feet above sea level, and a population one tenth the size of 
Washington, D.C. does not have the financial, human, or institutional 
capacity to respond to and address the magnitude of problems caused by 
the nuclear weapons testing program--problems which continue to plague 
our nation to this day, and into the future.
    The RMI Government appreciates all the assistance the U.S. 
Government has given to date to address some of the needs related to 
the testing program. The health programs, the environmental monitoring, 
and the food support programs for the atolls most impacted by the 
testing program are perhaps the most important programs that the U.S. 
has provided to the RMI, particularly from a symbolic perspective as 
they demonstrate the U.S. commitment in taking responsibility for the 
damages and injuries caused by U.S. testing. However, the RMI 
Government and the atoll leaders have been telling the U.S. Government 
continuously over many decades and through multiple administrations and 
Congressional hearings that the needs are much greater than the U.S. is 
taking responsibility for.
    Mr. Chairman, S 2941, which was introduced on January 20, 2010, is 
identical to the original version of S 1756 which you introduced in 
2007, at the request of President Note. Although a new draft of S 1756 
was presented to the RMI as a complete substitute after a hearing 
before your Honorable Committee on September 25, 2007, I will speak to 
the present S 2941, and then discuss the proposed substituted version 
of S 1756 in light of those comments.
    Consequently, I would like to discuss some of the issues addressed 
in S 2941, as well as those issues that need to be further considered 
and acted upon by our governments to fully address the consequences of 
the U.S. Nuclear testing program in the MarshallIslands.
            Runit Nuclear Waste Storage Facility
    We are most pleased to note the inclusion of provisions to address 
the monitoring of the Runit Nuclear Waste Storage Facility at Enewetak 
Atoll.
    The partial cleanup of Enewetak Atoll in the late 1970's resulted 
in the creation of an above ground nuclear waste storage site on Runit 
Island that has come to be known as the Runit Dome. Inside the Runit 
Nuclear Waste Storage Facility is over 110,000 cubic yards of 
radioactive material scraped from other parts of Enewetak Atoll. This 
nuclear waste storage site is of concrete construction and the material 
inside is radioactive for 24,000 years. This type of nuclear waste 
storage facility would not have been permitted in the US because it 
would not have been considered to be adequately protective of human 
health and the environment.
    In addition, there is an area on Runit Island where particles of 
plutonium were dispersed and not cleaned up. These particles remain on 
the island covered only by a few inches of dirt.
    We all know that monitoring of Runit Nuclear Waste Storage Facility 
and other parts of Runit Island needs to be done as part of a long-term 
stewardship program. Neither my government nor the Enewetak people have 
the expertise or resources to conduct such monitoring. The Runit 
Nuclear Waste Storage Facility and the surrounding contaminated land 
and marine area should be monitored and treated as any nuclear storage 
site in the US in order to provide the same level of protection to the 
Enewetak people as US citizens receive. That means that the monitoring 
needs to be part of a long-term stewardship program under the direction 
and responsibility of the DOE or other appropriate US agency.
    This has always been a major issue of concern for the people of 
Enewetak who live in the immediate area of Runit, and consume fish and 
other seafood from the reef area adjoining Runit. Accordingly, we ask 
the Committee to remain engaged in the oversight of the Department of 
Energy's survey reports regarding the radiological conditions at Runit, 
and to see to it that these surveys are adequately and consistently 
funded to allow the Department of Energy to carry out the surveys in a 
complete and timely manner, and to take immediate action if a problem 
is discovered.
    We also note that the provisions contained in the proposed 
substitute for S 1756 provided additional support and assurances beyond 
the provisions presently contained in S. 2941. We would ask that those 
changes also be made to S 2941.
            Eligibility for Energy Employees Occupational Illness 
                    Compensation Program
    The inclusion of citizens of the Trust Territory of the Pacific 
Islands for coverage under the Energy Employees Occupational Illness 
Compensation Program Act of 2000 is also most welcomed by the RMI. 
Approximately 50 Marshallese worked for the United States or its 
contractors in the Marshall Islands during this period in efforts to 
clean-up or monitor these severely contaminated sites, but unlike their 
U.S. citizen co-workers, have been denied access to health care to 
address the health consequences of their very hazardous work.
    In this connection, we note that the US government has recently 
expanded its coverage under the Energy Employees Occupational Illness 
Compensation Program and is increasing the number of Americans eligible 
for nuclear compensation through ``special exposure cohorts'', groups 
of people who were exposed at US nuclear facilities, including Bikini 
and Enewetak.
            Section 177 Healthcare
    S. 2941 also appropriates the sum of $2 million annually, as 
adjusted for inflation in accordance with the Section 218 of the RMI-
U.S. Compact for purposes of providing primary health care to the four 
atoll communities. The RMI welcomes and fully supports this measure and 
wishes to thank the Chairman for making this a permanent rather than 
discretionary appropriation; an issue that has caused significant 
problems in other Compact assistance.
    Section 1(a) of Article II of the Section 177 Agreement provided 
that $2 million annually be made available to address the health 
consequences of the nuclear testing program. This amount was never 
subject to an inflation adjustment, despite the fact that health care 
cost inflation rates have always been substantially higher in the U.S. 
than overall inflation rates. Applying the Medical Care CPI in Hawaii, 
where most medical referral cases from the RMI were sent during the 
period in question, the adjusted rate would have been $4.42 million 
annually as of 2001. These costs have continued to increase even as 
nuclear related health care funding has declined.
    As stated in the November 13, 2009, letter from President Zedkaia 
to Chairman Bingaman, ``The provisions contained in Section 4 of the 
substituted version of S.1756 that provided the sum of $4.5 million 
annually plus adjustment for inflation as a continuing appropriation 
through FY 2023 to address radiogenic illnesses and the nuclear related 
health care needs of Bikini, Enewetak, Rongelap, Utrik, Ailuk, Mejit, 
Likiep, Wotho, and Wotje, is acceptable to my Government.''
    There is more than ample evidence and justification to support this 
request. The scope of 177 Health Care Program needs to be examined, 
especially in light of the September 2004 NCI report prepared at the 
specific request of the Senate Committee on Energy and Natural 
Resources. In addition to stating that more than half of the estimated 
532 excess cancers had ``yet to develop or be diagnosed'' (page 14), 
the report also indicates that more than half of those excess cancers 
will occur in populations that were at atolls other than the four 
included in the 177 Health Care Program. Table 3 on page 20 of the 
report provides more than adequate justification for including in the 
program the populations of the ``Other Northern Atolls'' of Ailuk, 
Mejit, Likiep, Wotho, Wotje, and Ujelang. That table indicates 227 
estimated excess cancers among the 2005 people who were living at those 
atolls during the testing period, an amount representing more than 11% 
of those populations. It could also be argued that there should be an 
active and ongoing medical diagnostic program carried out across the 
RMI, specifically including the outer islands, in order to diagnose the 
excess cancers so that they can be treated at the earliest possible 
stage.
    While the NCI Report continues to undergo peer review, new reports 
continue to support the need for a substantial increase in Section 177 
Health Care, beyond the provisions of S.2941. The President's Cancer 
Panel Annual Report entitled ``Reducing Environmental Cancer Risk, What 
We Can Do Now'' (PCP) published by the U.S. Department of Health and 
Human Services, National Institutes of Health and the National Cancer 
Institute comment in the Report's Executive Summary that:

          Of special concern, the U.S. has not met its obligation to 
        provide for ongoing health needs of the people of the Republic 
        of the Marshall Islands resulting from radiation exposures they 
        received during U.S. nuclear weapons testing in the Pacific 
        from 1946-1958.

    The PCP goes on to state:

          Funding issues are exacerbated by the limited health 
        resources available in the Marshall Islands and elsewhere in 
        the Pacific Islands to treat affected individuals who seek care 
        through the Section 177 and Special Medical Care programs.

    The PCP notes that despite the ongoing increased risk of several 
hundred new cancers caused as a result of the Nuclear Testing Program 
in the Marshall Islands, actual funding to address these health risks 
has declined considerably since the mid 1980's notwithstanding the 
exponential increase in health care costs during the same period. In 
this connection, the PCP notes that the Section 177 healthcare has been 
significantly underfunded; annual funding beginning in 1986 was $4 
million. Annual funding dropped to $2 million after about 4 years. 
Since 2006, funding has been level at approximately $984,000 per year.
    The 4 Atoll Health Care Program (formerly the 177 Health Care 
Program) has been operating on borrowed time and resources since its 
beginnings. We have continued to watch medical and pharmaceuticals, 
supplies, and logistical costs increase year after year while our 
financial support stayed flat. After 24 years of the Compact, with 
medical costs at an all time high, we faced the challenge of trying to 
continue the program with a more than 50% cut in our already seriously 
inadequate budget.
    What are the challenges we face?
    We need a commitment for longer term funding that maintains its 
value in light of rapidly increasing health care costs.
    We need adequate and reliable water supply systems.
    We need affordable and reliable power supply systems.
    We need reliable transportation services for patients and medical 
supplies.
    We continue to lack the ability to diagnose or treat cancers in the 
RMI. We have no full time oncologist and lack the necessary personnel 
and equipment to treat cancers, although we have started a national 
cancer registry.
    We lack autoclaves because these sterilizers require a continuing 
supply of distilled water to operate. Other sterilization supplies such 
as Formalin can only be transported by boat and are difficult to ship 
into the Marshall Islands. This means we do without basic minor surgery 
equipment unless we use cost-prohibitive disposable sets and supplies.
    None of our clinics have basic laboratory setups for simple 
diagnostics and many of the one step lab tests are either too costly or 
require cool storage. We have extremely limited diagnostic equipment 
and much of it has to be shared on a rotating basis. We have no 
proctoscopes, we cannot do PSA's. Both of these would be needed for 
cancer screenings. In addition, we lack reliable cold storage.
    Facing these limits, we have been very lucky to recruit physicians 
from third world countries with strong clinical skills, experience 
relative to our diseases, and a willingness to work under these 
difficult circumstances. These doctors continue to live and work in our 
outer atolls despite limitations in supplies, equipment, and logistical 
support. Hiring these doctors has also been a matter of necessity as 
neither our previous or current budget would have supported hiring 
physicians with greater salary expectations. The recruiting and 
relocation costs for these doctors can be relatively high. This expense 
is compounded as we deal with year to year funding. Lack of secured 
funding prevents us from recruiting and hiring on longer term contracts 
and seriously impacts the program's continuity and the related 
recruiting costs.
    Some have suggested that sector grants available under the Compact, 
as amended, can fill this program and funding gap. Nothing could be 
further from the truth. Although introduced into the record in prior 
hearings before this committee and the House Resources and Foreign 
Affairs committees, the U.S. Administration specifically excluded in 
writing any consideration of nuclear related health issues when the 
amended Compact was negotiated. Instead, it was pointed out to our 
government that nuclear related health issues were to be taken up by 
the Congress under Article IX of the Section 177 Agreement. Thus, we 
look to Congress as provided in the Section 177 Agreement to address 
these issues.
            NAS Study
    S.2941 makes provision for the National Academy of Sciences to 
conduct an assessment of the health impacts of the nuclear testing 
program on the residents of the RMI. The RMI strongly supports this 
assessment as it will look at the overall health impacts caused by the 
Nuclear Testing Program rather than focusing on just one aspect of 
those impacts. The RMI would like to make it clear, however, that the 
NCI and other data previously presented to this Committee provides the 
justification for taking action now to establish a cancer screening and 
treatment program, and to address the radiogenic healthcare needs of 
several communities beyond the 4 atolls.
    The proposed National Academy of Sciences assessment of the health 
impacts of the nuclear program on the residents of the Marshall Islands 
should consider all data and analyses relating to dose reconstructions, 
exposure pathways, and potential health outcomes. In particular, two 
reports prepared for the Centers for Disease Control by S. Cohen & 
Associates and dated May, 2007, should be reviewed as part of the 
assessment and the authors of the reports should be given an 
opportunity to meet with the NAS experts to discuss their findings. The 
two reports are: ``Historical Dose Estimates to the GI Tract of 
Marshall Islanders Exposed to BRAVO Fallout''.Contract No. 200-2002-
00367, Task Order No. 9) and ``An Assessment of Thyroid Dose Models 
Used for Dose Reconstruction,'' Vols. I and II (Contract No. 200-2002-
00367 ,Task Order No. 10).
    We also believe that the NAS study should consider Marshallese 
perspectives on illness caused by the testing. Instead of looking for 
effects that the NAS expects to find, it should incorporate a research 
methodology that includes an opportunity for Marshallese to explain the 
changes from their perspectives.
    We know from the PCP and other reports that knowledge is constantly 
changing in this area, and there is an ongoing need for a continuing 
assessment of the health impacts of the nuclear testing program in the 
Marshall Islands.
    While the NAS study provision had been removed from the proposed 
substitute of S 1756, we ask that it be retained in S. 2941, so that 
both governments can stay fully apprised of updated information 
concerning the health impacts of the nuclear program on residents of 
the Marshall Islands.
    We want to also raise an issue that concerns the people of Utrik. 
In 2003, the Department of Energy established a Whole Body Counting 
(WBC) facility for radiological testing of the people of Utrik. Due to 
insufficient power supply on Utrik Atoll, the Department of Energy 
located the Utrik WBC on Majuro. As a result, the people who live on 
Utrik Atoll must travel to Majuro, which is approximately 250 miles 
away, in order to be tested at the WBC facility. The significant cost 
of air transportation, when it is available, and inconvenience to 
travel to Majuro from Utrik has led to infrequent and sporadic WBC 
testing of the inhabitants of Utrik. Congress acknowledged this problem 
when it passed legislation in 2004 to transfer a decommissioned NOAA 
vessel to Utrik Atoll for the purpose of helping to alleviate this 
transportation issue. While Utrik supported and welcomed that 
Congressional gesture, a professional analysis showed that if Utrik 
took possession of the vessel it would be a heavy financial burden, so 
unfortunately the NOAA vessel was not the solution.
    So today, with only a portion of the Utrik community being tested, 
many are left unexamined. This is extremely problematic because recent 
WBC data gathered by Lawrence Livermore Laboratory has demonstrated 
that the people living on Utrik have received the highest body burdens 
of radionuclides of any group in the Marshall Islands. The people of 
Utrik strongly feel that relocating the WBC facility to Utrik is the 
right solution and is long overdue. They therefore request that 
language be added to S. 1756 that grants the Department of Energy the 
authority and funding necessary to construct a WBC facility with an 
adequate power supply on Utrik Atoll. While the people of Utrik do not 
have an exact cost estimate at this time, they believe this can be 
achieved with a relatively modest expenditure.
    I note that provision for a WBC was included in the proposed 
substitute version of S 1756, but does not appear in S 2941 before us 
today. We urge that this provision be included in S 2941 to support and 
the people of Utrik on this important health and safety concern.
            Assessment of the Marshall Islands Nuclear Claims Tribunal
    Absent from the S.2941 is any reference to the decisions and awards 
made by the Marshall Islands Nuclear Claims Tribunal. The 
administrative and adjudicative processes of the Tribunal over the past 
19 years are an important mutually agreed to component of the Section 
177 Agreement and its implementation to resolve claims for damage to 
person and property arising as a result of the nuclear testing program. 
We cannot simply ignore the Tribunal's work and awards that it has 
made.
    Understanding that there continues to be concerns in Congress, we 
would support a further study of the decision-making processes of the 
Marshall Islands Nuclear Claims Tribunal and its awards by an 
appropriate organization. The RMI has presented a Report on this 
subject prepared by former United States Attorney General Richard 
Thornburgh in January, 2003, however, issues and concerns apparently 
continue. We should move forward and resolve any remaining issues and 
concerns regarding the Tribunal and its work. We would therefore 
respectfully suggest that the GAO may be appropriate to undertake such 
a study and provide recommendations to the Congress should these 
concerns persist.
    We note that there recently has been a great deal of activity in 
the United States in respect to amending the U.S. Radiation Effects 
Compensation Act (RECA) to increase the parameters of eligibility; the 
amounts of compensation; and the number of qualifying conditions that 
are presumed eligible for compensation. The RMI would take this 
occasion to point out as we have in the past that the Tribunal's 
personal injury program is based on the U.S. RECA program. The 
difference is that while RECA expands, the Tribunal is not provided 
with the resources necessary to carry out its statutory and Compact 
mandate and obligations. Given that test yields in the Marshall Islands 
were almost 100 times as great as those from the Nevada Tests, there is 
clearly a gross disparity between the treatment of U.S. and Marshallese 
victims. We ask that nuclear victims in the RMI be provided equity in 
compensation and treatment with their US counterparts.
            Conclusion
    The RMI first presented its petition under Article IX of the 
Section 177 Agreement regarding ``changed circumstances'' almost 10 
years ago, and as noted earlier, the ensuing Compact negotiations 
excluded any discussion or measures to address issues related to the US 
Nuclear Testing Program. Subsequently, we were most pleased that 
hearings took place in the House and Senate in 2005, and again in 2007. 
Specifically, our Government had the opportunity to testify before this 
Committee on September 25, 2007, on S. 1756, in its initial version 
which is identical to S 2941 before us here today.
    Finally, our government was provided with a proposed substituted 
version which increased health care assistance and expanded eligibility 
to ten atolls. That version was never submitted to the Committee, so S 
1756 died at the end of 2008.
    Meanwhile, many Marshallese have died from radiogenic related 
cancers without adequate health care or ever receiving their full 
awards from the Nuclear Claims Tribunal. Problems related to clean-up 
and resettlement continue to this day with inadequate resources and 
with no resolution in sight. We need to look for ways forward in 
addressing these problems, and we should not continue to put off action 
that should have been taken years ago.
    The RMI notes that the Section 177 Agreement continues in the 
Compact, as amended. It does not have an expiration date, including 
Article IX. We need to look for solutions rather than impediments and 
obstacles. Contrary to what the U.S. Administration seems to believe, 
taking steps under Article IX of the Section 177 Agreement does not 
reopen the settlement. Rather it allows us to work together and address 
the shortcomings of the settlement as those shortcomings have become 
apparent over time, and need to be addressed.
    We ask that this process start again today with consideration of S 
2941 and timely passage of these important measures.
    Thank you, and I would be pleased to answer any questions that you 
may have.

    The Chairman. Thank you very much.
    Mr. Pula, you're our cleanup witness here, go right ahead.

   STATEMENT OF NIKOLAO I. PULA, DIRECTOR, OFFICE OF INSULAR 
              AFFAIRS, DEPARTMENT OF THE INTERIOR

    Mr. Pula. Thank you, Mr. Chairman, Ranking Member 
Murkowski, and members of the committee. Thank you for the 
opportunity today to discuss S. 2941, the Republic of the 
Marshall Islands Supplemental Nuclear Compensation Act.
    The 4 principal sections deal with nuclear weapons testing 
in the Marshall Islands from June 1946 until August 1958.
    If enacted, section 2 of S. 2941 would require the 
Department of Energy to survey radiological conditions on Runit 
Island every 4 years. In 1986, the agreement subsidiary to 
section 177 of the 1986 compact of free association relieved 
the U.S. Government of all responsibility for controlling the 
utilization of areas in the Marshall Islands effected by the 
nuclear testing program, and placed that responsibility solely 
on the Marshall Island's government.
    Despite the settlement, the Department of Energy, for many 
years, performed environmental measurements at Bikini, 
Enewetak, Rongelap, and Utrik Atolls, including, upon request, 
periodic environmental sampling around Enewetak Atolls, Runit 
dome.
    Section 3 deals with the eligibility of the former citizens 
of the trust territory of the Pacific islands for the Energy 
Employees Occupational Illness Compensation Program Act, 
EEOICPA. The Department of the Interior defers to the 
Department of Labor, which, since it has primary responsibility 
for administering EEOICPA, is the Federal agency best 
positioned to discuss this compensation program.
    If enacted, section 4 of the bill would appropriate funds 
for the Four Atoll Health Care Program. The Administration does 
not support permanent annual appropriation of $2 million for 
this program. The executive branch determined in 2005 that 
there was no legal basis for considering additional payments 
under the agreements subsidiary to section 177 of the compact. 
If enacted, Sec. 5 of S. 2941 would mandate that the Secretary 
of the Interior commission an assessment and report by the 
National Academy of Sciences of the health impact of the U.S. 
nuclear weapons testing program in the northern islands and 
atolls of the Marshall Islands from June 1946 until August 
1948, or 58.
    The Administration does not support the commissioning of 
additional studies at this time. Mr. Chairman, we understand 
the committee is contemplating amendments to this legislation, 
the Administration would be happy to work with the committee on 
any appropriate changes.
    With regard to H.R. 3940, the bill would authorize 
technical assistance funding for political status education 
programs. The Department of the Interior has no objection to 
the enactment of H.R. 3940, however we note that any assistance 
provided under this authorization would have to compete with 
other priority needs. We also note that everything section 2 
would authorize, be accomplished under the language already 
contained in subsection A of section 601 of Public Law 95-597, 
without the enactment of additional legislation.
    The Department of the Interior would not object to funding 
political status education on 2 conditions. One, the 
educational option is factual, and 2, all points of view 
receive equal opportunity for hearing. The hallmark 
considerations for a public education program on political 
status are facts and fairness.
    Thank you for the opportunity to comment on this particular 
bill.
    [The prepared statement of Mr. Pula follows:]

  Prepared Statement of Nikolao I. Pula, Director, Office of Insular 
                  Affairs, Department of the Interior
                              on h.r. 3940
    Mr. Chairman and members of the Committee on Energy and Natural 
Resources, thank you for the opportunity today to discuss H.R. 3940, 
which would authorize technical assistance funding for political status 
education programs.
    Subsection (a) of section 601 of Public Law 96-597 created a 
technical assistance program that authorizes the Secretary of the 
Interior----

          to extend to the governments of American Samoa, Guam, the 
        Northern Mariana Islands, the Virgin Islands, and the Trust 
        Territory of the Pacific Islands technical assistance on 
        subjects within the responsibility of the respective 
        territorial governments.

    This technical assistance program, administered by the Office of 
Insular Affairs in the Department of the Interior, has provided 
technical assistance funds to the territories for a wide range of 
purposes.
    Section 2 of H.R. 3940 would add a new section before the language 
above that would authorize, not require, the Secretary of the Interior 
to extend assistance to American Samoa, Guam and the U.S. Virgin 
Islands for grants, research, planning assistance, studies, and 
agreements with Federal agencies to facilitate public education 
programs regarding political status options.
    The Department of the Interior has no objection to the enactment of 
H.R. 3940. However, we note that any assistance provided under this 
authorization would have to compete with other priority needs. We also 
note that everything section 2 would authorize can be accomplished 
under the language already contained in subsection (a) of of section 
601 of Public Law 96-597 without the enactment of additional 
legislation.
    When the political status of a territory is under consideration, 
education of the public regarding the options available to the people 
is of utmost importance. Only an educated populace can make informed 
decisions about its future. The Department of the Interior would not 
object to funding political status education on two conditions:

           the education on options is factual, and
           all points of view receive equal opportunity for 
        hearing.

    The Department would not award funding to extol one point of view 
that unfairly excludes other points of view. The hallmark 
considerations for a public education program on political status are 
facts and fairness.
    Thank you for the opportunity to comment on H.R. 3940. I would be 
happy to answer any questions at this time.
                               on s. 2941
    Mr. Chairman and members of the Committee on Energy and Natural 
Resources, thank you for the opportunity today to discuss S. 2941, the 
Republic of the Marshall Islands Supplemental Nuclear Compensation Act.
    The four principal sections of S. 2941 deal with several issues 
arising from the nuclear weapons testing program that the United States 
conducted in the northern islands and atolls of the Marshall Islands 
from June 1946 until August 1958.
Continued Monitoring on Runit Island--Section 2
    If enacted, section 2 of S. 2941 would require the Department of 
Energy to survey radiological conditions on Runit Island every four 
years and to report the results to relevant House and Senate 
committees. The partial clean-up of Enewetak Atoll conducted by the 
Department of Defense in the late 1970's resulted in the creation of an 
above-ground nuclear waste storage site on Runit Island capped by a 
dome. Inside Runit Dome are over 110,000 cubic yards of radioactive 
material scraped from other parts of Enewetak Atoll.
    In 1986, the U.S. and Marshall Islands Governments fully settled 
all claims, past, present and future, of the government and citizens of 
the Marshall Islands which are based upon, arise out of, or are in any 
way related to the U.S. nuclear weapons testing program. In particular, 
Article VII of the agreement subsidiary to section 177 of the 1986 
Compact of Free Association relieved the U.S. Government of all 
responsibility for controlling ``the utilization of areas in the 
Marshall Islands affected by the Nuclear Testing Program'' and placed 
that responsibility solely with the Marshall Islands Government. 
Nevertheless, radiological conditions at the Runit Island repository 
have remained for many years a point of friction in the otherwise 
mutually agreeable, bilateral relationship between the Marshall Islands 
and U.S. Governments. Representatives of the Marshall Islands 
Government have raised questions regarding Runit Island including:

           the safety of land, water and marine life;
           the radiological condition of the northern part of 
        the island; and
           the structural integrity of the dome.

    For many years the Department of Energy has performed environmental 
measurements at Bikini, Enewetak, Rongelap and Utrik Atolls, including, 
upon request, periodic environmental sampling around Enewetak Atoll's 
Runit Dome. The atoll communities set their own environmental goals and 
conduct all remedial actions. The Department of Energy takes 
environmental measurements before and after remedial actions to see if 
the actions have achieved their goals. In addition, the Department of 
Energy offers suggestions for remedial actions at the request of the 
Marshall Islands Government, to aid atoll communities' resettlement 
decisions.
Clarification of Eligibility under EEOICPA--Section 3
    Section 3 deals with the eligibility of the people of the former 
Trust Territory of the Pacific Islands for the Energy Employees 
Occupational Illness Compensation Program Act (EEOICPA). In the 1950's 
the U.S. Government hired U.S. citizens and people of the Trust 
Territory to clean up ground-zero locations on Bikini and Enewetak 
Atolls and to collect soil and other materials from contaminated areas 
in the Marshall Islands. Trust Territory inhabitants received certain 
benefits, e.g. consular, from the United States Government as 
administering authority, but they were not U.S. citizens. These 
individuals cannot currently receive EEOICPA benefits.
    Section 3 is intended to place the former non-U.S. citizen Trust 
Territory workers on an equal footing with U.S. citizen workers.
    Regarding section 3 of this bill, the Department of the Interior 
defers to the Department of Labor, which, since it has primary 
responsibility for administering EEOICPA, is the Federal agency best 
positioned to discuss this compensation program and provide technical 
assistance concerning the language of section 3.
Four Atoll Health Care Program--Section 4
    If enacted, section 4 of the bill would appropriate funds for the 
Four Atoll Health Care Program. The Congress established the Four Atoll 
Health Care Program in the early 1970's to provide health care for 
certain members of the Enewetak, Bikini, Rongelap, and Utrik Atoll 
communities. When the original Compact of Free Association came into 
force in 1986, the Four Atoll Program was funded for fifteen years 
under the agreement subsidiary to section 177 of the Compact. This 
funding ended in 2001 in accordance with the terms of that agreement. 
In January 2005, the Department of State transmitted to Congress the 
Executive Branch's evaluation of the Marshall Islands Government's 
changed circumstances petition under Article IX of the agreement 
subsidiary to Compact section 177. The Marshall Islands request 
included, among other things, an enhanced primary, secondary and 
tertiary health care system to serve all Marshall Islanders for fifty 
years. The Executive Branch's report concluded that there was no legal 
basis for considering additional payments.
    Nonetheless, in each fiscal year beginning with 2005, the Congress 
has added a little less than $1,000,000 in appropriations for the Four 
Atoll Program. Section 4 of this bill would create a permanent 
appropriation for the program for fiscal years 2012 through 2028. 
Additionally, it would fund the program annually at $2,000,000, as 
adjusted for inflation.
    The Administration does not support a permanent annual 
appropriation of $2,000,000 for this program. As noted previously, the 
Executive Branch determined in 2005 that there was no legal basis for 
considering additional payments under the agreement subsidiary to 
section 177 of the Compact. Furthermore, the U.S. Government is 
spending over $1,500,000,000 in direct assistance and trust fund 
contributions for the Marshall Islands through fiscal year 2023. Also, 
the Marshall Islands Government, equally with U.S. State and insular 
governments, remains eligible for a number of categorical and 
competitive public health grant programs administered by the Department 
of Health and Human Services under section 105(f)(1)(D) of the Compact 
of Free Association Amendments Act of 2003 (48 U.S.C. 1921d(f)(1)(D)), 
should the Marshall Islands wish to apply.
Assessment of Health Care Needs of the Marshall Islands--Section 5
    If enacted, section 5 of S. 2941 would mandate that the Secretary 
of the Interior commission an assessment and report by the National 
Academy of Sciences of the health impact of the U.S. nuclear weapons 
testing program in the northern islands and atolls of the Marshall 
Islands from June 1946 until August 1958.
    The Administration believes that this assessment is not necessary. 
In January 2005, the Department of State submitted the results of the 
Executive Branch's evaluation that comprehensively and methodically 
reviewed existing scientific studies of the impact of the U.S. nuclear 
weapons testing program in the Marshall Islands. This evaluation 
highlighted that previous studies had adequately answered questions 
about the impact of the nuclear weapons testing program as those 
questions related to additional claims for compensation.
    The Administration does not support the commissioning of additional 
studies at this time.
    Mr. Chairman, we understand that the Committee is contemplating 
amendments to the legislation. The Administration would be happy to 
work with the Committee on any appropriate changes.

    The Chairman. Thank you all very much for your testimony.
    Let me just ask a few questions. First, let me ask Ms. 
Christensen, your suggestion is that we urge that the 
Constitutional Convention reconvene for the purpose of 
considering issues that have been raised by the President and 
by the Department of Justice, and that there would be some 
funding required if the convention did reconvene and pursue 
this. What--what are you suggesting is the right amount of 
necessary funding, what would it be required for?
    Ms. Christensen. I can't tell you at this point what the 
correct funding would be. We've asked the convention to prepare 
a budget that we could consider. I've also had some discussions 
with the Department of the Interior, the Assistant Secretary 
for Insular Affairs. On this--perhaps the President might have 
a better sense of what the cost might be, but I have not 
received a budget or--or an approximate cost.
    The Chairman. Did you have a comment, Mr. James?
    Mr. James. I certainly do, Mr. Chairman. It will be 
approximately $600,268.15.
    The Chairman. That's a good approximation. All right, and 
you have some documentation as to how that figure was arrived 
at that you could present?
    Mr. James. Yes, I can provide that to you, Mr. Chairman, 
that can be provided.
    The Chairman. That would be useful.
    The Chairman. Delegate Christensen, you also recommended 
that, if the convention reconvenes and considers these points 
that the Department of Justice and the President have made, 
that then the convention's resulting document should be 
presented to the people of the Virgin Islands directly, and not 
come back to Congress. Are you not concerned with the 
possibility that the convention would choose not to address the 
issues or would find--and we would wind up in years of court 
proceedings?
    Ms. Christensen. I'm convinced that the 30 individuals who 
are elected by the people of the territory to be delegates to 
the Constitution convention have a commitment to seeing a 
document that can be adopted by the people of the Virgin 
Islands, sent to the people of the Virgin Islands. I think the 
concerns that have been raised and the issues that have been 
raised by the President and the Justice Department will be 
taken into complete consideration. I do recognize that in 
many--in some cases the governmental--the governmental intent 
or the rationale has not been made clear perhaps. I think it 
can be made clearer, but I do think that as this is returned to 
the territory with the Department of Justice and the White 
House having pointed out the inconsistencies with the U.S. 
Constitution and the Organic Act, recognizing the authorizing 
legislation requires that the constitution be consistent with 
the Constitution of the United States and the Organic Act. Also 
recognizing the concerns of the people of the territory, also 
regarding some of those issues that the constitution will--
convention when it convened will ensure that this is a document 
that has the support of, and the consensus of the territory.
    The Chairman. Mr. James, do you have--could you give us 
your perspective as to how the convention would feel about 
making revisions in this document, on the issues that have been 
raised by the Department of Justice and the President?
    Mr. James. If it's the wish of this body, we will have to 
go forward, but I would like to just put on the record that the 
members of the delegates are former judges, Governors, 
lieutenant Governors, they also are individuals who are 
teachers, professors, and it will be their wish once they come 
to consensus. That's following the lead of the delegate. We'd 
like to have that done and that returned back. We did have a 
problem getting the bill here, in terms of its process, and we 
don't want to have that happen again.
    The Chairman. Let me ask either one of you, I guess 
particularly, Mr. James, here. If there were a consensus here 
in the committee and in the Congress that this suggestion of 
delegate Christensen should be taken up and we should urge the 
reconvening of the convention, could it--could that be done 
through something less formal than an actual Resolution passed 
by Congress? Could it be done through a, perhaps letters from 
the Chairman and Ranking Members of the committees of 
jurisdiction and the delegates to the convention, is that--
would that be an adequate way to proceed?
    Mr. James. I would rather see it more formal, as a 
resolution.
    The Chairman. All right.
    Mr. James. Then a letter.
    The Chairman. OK.
    Ms. Christensen. Mr. Chairman, I'm not sure that it can be 
done without a formal resolution, given the authorizing--the 
way the authorizing legislation was written.
    The Chairman. OK.
    Senator Murkowski.
    Senator Murkowski. Thank you, Mr. Chairman.
    Let me start with you, Mr. Pula. Since the Administration 
has said that they don't support the continued for the Four 
Atoll Healthcare Program, are there any aspects of the Compact 
funding that are or could be used to assist in providing for 
the healthcare programs and the environmental monitoring in the 
Four Atolls, and potentially for the additional 6 that have 
been identified by the National Cancer Institute?
    Mr. Pula. Thank you for the question. With compact funding, 
it has been slated for six sectors, health, education, 
infrastructure, and environmental, and also, I think capacity 
building, public capacity building. That--most of the funding 
goes into those sectors. If there's any funding that could be 
discussed with the joint economic committees that deal with the 
annual budget of both--in particular of Marshall Islands here, 
that is something that could be subject to discussion, but 
it's--I can say it's pretty tight, the way the money is now 
being spent and appropriated on an annual basis.
    Senator Murkowski. Let me ask you then, Minister Silk, what 
capacity does the RMI government have to submit these 
competitive grant applications for--as Mr. Pula has said--the 
public health programs? What level of Compact funding has been 
used to develop the capacity?
    Mr. Silk. Senator, the current Compact funding is all 
geared toward the whole Republic of the Marshall Islands. There 
is no specific funding specifically geared toward the health of 
the--of the people who were effected by the nuclear testing 
program. I'm very, let me say this, that I'm very disappointed 
by the response from the Administration. Three years ago, we 
had this same hearing with this committee, Senator, and at that 
time a testimony was given by, then Minister Felipo, in which 
he stated, and I quote, that he was ``profoundly disappointed'' 
by the Administration's position.
    Now, let me repeat that again, and I'm saying that on 
behalf of the government, let me say that I'm deeply and 
profoundly disappointed and saddened--let me add that--that 
the--of the continued denial of the consequences of the nuclear 
testing program, continues until today. Thank you, Senator.
    Senator Murkowski. With regard to the monitoring that you 
had mentioned on Runit, you had--I think you had indicated that 
we need to institutionalize this within the U.S. Government. 
Should this fall under the existing Department of Energy 
monitoring or do we place in a new program? Have you given any 
thought to that, in terms of where the monitoring is?
    Mr. Silk. I think it should continue with the Department of 
Energy, but that there should be continued oversight by the 
Congress.
    Senator Murkowski. OK.
    Mr. Silk. Thank you.
    Senator Murkowski. Then one last question for you Minister, 
you had noted that the conditions that physicians in the outer 
atolls live and work under are less than ideal. You've had 
some--some luck, I guess, in attracting and recruiting 
physicians from third-world countries that have the necessary 
experience. What's the level of interaction, if there is any 
interaction, between those physicians that you're able to bring 
to the Marshall Islands and their involvement with the 
Department of Energy's Marshall Islands' programs? Do we need 
to be doing more to coordinate the efforts to allow for greater 
effectiveness of the Four Atoll Healthcare Program?
    Mr. Silk. Yes, indeed we should and could. I think that is 
something that we would have to work on in order to improve 
coordination between the--and also within the Ministry of 
Health of the Government of the Republic of the Marshall 
Islands, and the Department of Energy as well, the Department 
of the Interior. Thank you.
    Senator Murkowski. Thank you.
    Mr. Chairman, I don't have any further questions this 
morning.
    The Chairman. All right. Let me just ask one additional 
question. Mr. Pula, you say on page 4, that the Administration 
does not support a permanent annual appropriation of $2 million 
for the Four Atoll Healthcare Program, because, ``The executive 
branch determined in 2005 that there was no legal basis for 
considering additional payments under the agreement subsidiary 
to section 177 of the Compact.'' In reaching this decision, did 
the Administration consider the findings of the 2005 study of 
the National Cancer Institute or this year's annual report of 
the President's Cancer Panel? If those were not considered, 
would you be willing to recommend that the Administration 
reconsider its position in light of those reports?
    Mr. Pula. Thank you, Mr. Chairman. I have just learned that 
myself, regarding the Panel's decision recently. As I stated in 
my testimony that the Administration would be happy to work 
with the committee on appropriate changes regarding this.
    The Chairman. Thank you very much. I thank all witnesses 
for your excellent testimony. We have a good record and we will 
try to figure out the right way to proceed on each of these 
bills and initiatives and move ahead. But thank you all for 
being here.
    Mr. Cedarbaum. Mr. Chairman.
    The Chairman. Yes.
    Mr. Cedarbaum. Could I comment on that question?
    The Chairman. Certainly, certainly you can. Go right ahead.
    Mr. Cedarbaum. Thank you, Mr. Chairman. Mr. Chairman, we 
don't agree with that position that there is no legal basis, 
however, the Congress has that authority as--the Congress 
could--enact to improve on the health of the Four Atolls and 
the rest of the Marshall Islands as a consequence of the 
nuclear testing, but we don't agree with that assessment that 
there is no legal basis. Thank you.
    The Chairman. Thank you very much.
    Thank you all again for your testimony, and that will 
conclude our hearing.
    [Whereupon, at 11:56 a.m., the committee was adjourned.]

    The following documents have been retained in committee 
files:

   The Compact of Permanent Union Between Puerto Rico 
        and the United States, submitted by Ferrer.
   An Overview of the Special Tax Rules Related to 
        Puerto Rico and an Analysis of the Tax and Economic 
        Policy Implications of Recent Legislative Options, 
        submitted by Ferrer.
   H.R. 2497 from the Puerto Rican House of 
        Representatives, submitted by Ferrer.
   A Letter from the Obama Campaign, submitted by 
        Ferrer.
   The PNP Platform, submitted by Ferrer.
   S.B. 1407, submitted by Ferrer.
   The PDP Resolution, submitted by Fortuno.
   The Political Education and Training Manual of the 
        PDP, submitted by Fortuno.
                               APPENDIXES

                              ----------                              


                               Appendix I

                   Responses to Additional Questions

                              ----------                              

 Responses of Hon. Luis G. Fortuno to Questions From Senator Murkowski
    Question 1. Among the status options put forward by the 
Presidential Task Force is that of Free Association, which is not 
represented on the panel this morning. How would you define the Free 
Association option?
    Answer. The defining element of free association in international 
law is that the parties be sovereign nations that remain sovereign. 
Because they are sovereign, the corollary essential aspect of the 
status is that the association is terminable by either nation, that is, 
``free.''
    Obviously, Puerto Rico is not now in free association with the 
United States--as claimed by some representatives of the 
``Commonwealth'' party--because Puerto Rico is clearly not a sovereign 
nation that remains sovereign. Additionally, under U.S. law, Puerto 
Rico does not have a right to withdraw from its U.S. relationship. 
Congress would have to act to change Puerto Rico's status.
    An important aspect of free association is that, under such a 
status, individuals born in Puerto Rico would be citizens of Puerto 
Rico and not the United States. U.S. citizens alive at the time of the 
start of free association would also have to choose between retaining 
their U.S. citizenship and acquiring citizenship in the new nation. 
This is consistent with U.S. citizenship policy, which requires primary 
loyalty to the U.S.
    Other likely aspects of a free association between the U.S. and 
Puerto Rico based on the precedents, current law, and positions of the 
Clinton and George W. Bush Administrations would include: some greater 
access to the U.S. for citizens of the freely associated state in 
comparison to that of citizens of purely independent nations; U.S. laws 
not applying; U.S. courts not having any jurisdiction; the continuation 
of some U.S. domestic programs and services but far from all current 
ones; U.S. military rights; Puerto Rican foreign policy, subject to a 
U.S. security veto; U.S. taxation of Puerto Rican income of U.S. 
citizens, with an exclusion for a basic amount and credit for Puerto 
Rican income taxes.
    Question 2. Do you believe the four options put forward by the 
Presidential Task Force and in the House bill are the only legitimate 
and viable options for Puerto Rico's political status?
    Answer. The four options--the current status (unincorporated 
territory), independence, nationhood in a free association with the 
U.S., and U.S. statehood are the only real options and the only real 
options with support in Puerto Rico. Theoretically, Puerto Rico could 
freely associate with another nation, such as Spain or the Dominican 
Republic, or become part of another nation, such as those nations, but 
there is no known support for such options.
    The proposal of the ``Commonwealth'' party for an association 
between the U.S. and Puerto Rico that the U.S. could not change without 
Puerto Rico's consent that would empower Puerto Rico to nullify federal 
laws and federal court jurisdiction on most matters and enter into 
international agreements and organizations that do not compromise U.S. 
security, replace repealed tax incentives for companies in the States 
to locate plants in Puerto Rico, provide a new subsidy for the insular 
government, continue all programs providing assistance to Puerto Ricans 
and grant U.S. citizenship to individuals born in Puerto Rico forever 
is not a possible arrangement. It is an incompatible combination of 
aspects of different statuses that is contrary to the Constitution and 
basic laws and policies of the U.S., as has been explained by the 
Justice and State Departments and the Clinton and George W. Bush White 
Houses, the Congressional Research Service, the House committee with 
jurisdiction over territories matters, and bipartisan leaders of your 
committee.
                                 ______
                                 
   Response of Gerald Luz Amwur James, II, to Question From Senator 
                               Murkowski
    Question 1. If the Constitutional Convention were to reconvene and 
revise the proposed constitution, how would that impact the timing of a 
vote by the people and voter participation?
    Answer. Thank you for the your concern on behalf of the people of 
the Virgin Islands. The people will have the opportunity to vote in the 
November general election or in a subsequent special election called 
for voting on the constitution. Originally, the Convention was of the 
belief that the vote would be by special election. If the constitution 
was were returned today, I seriously question the ability of the 
Convention and Territory the Virgin Islands Election System to be ready 
adequately prepared for a vote in the November general election. It is 
the Convention's plan to have a comprehensive education program before 
a call to a vote.
                                 ______
                                 
  Responses of Ruben Angel Berrios Martinez to Questions From Senator 
                               Murkowski
    Question 1. Among the status options put forward by the 
Presidential Task Force is that of Free Association, which is not 
represented on the panel this morning. How would you define the Free 
Association option?
    Answer. This option is defined by International Law in ``Principle 
VII'' of the United Nations General Assembly Resolution 1541 (XV) 
(1960) as follows:

    http://daccess-dds-ny.un.org/doc/RESOLUTION/GEN/NR0/153/15/IMG/
NR015315.pdf?OpenElement

                             principle vii
          (a) Free association should be the result of a free and 
        voluntary choice by the peoples of the territory concerned 
        expressed through informed and dmocratic processes. It should 
        be one which respects the individuality and the cultural 
        characteristics of the territory and its peoples, and retains 
        for the peoples of the territory which is associated with an 
        independent State the freedom to modify the status of that 
        territory through the expression of their will be democratic 
        means and through constitutional processes.
          (b) The associated territory should have the right to 
        determine its internal constitution without outside 
        interference, in accordance with due constitutional processes 
        and the freely expressed wishes of the people. This does not 
        preclude consultations as appropriate or necessary under the 
        terms of the free association agreed upon.

    Evidently, the terms of the association would need to be worked out 
between the United States and a sovereign Puerto Rico, after 
constitutional disposition of the territory.
    Question 2. Do you believe the four options put forward by the 
Presidential Task Force and in the House bill are the only legitimate 
and viable options for Puerto Rico's political status?
    Answer. I wish to reiterate that current territorial status is 
illegitimate in the XXI century under international law, as are 
apartheid, slavery, or child-labor laws. The present status--or any 
form of territorial status--is colonial and therefore immoral and anti-
democratic because Puerto Rico continues to be governed by federal laws 
it does not make, under a foreign constitution of a nation to which it 
belongs, but of which it is not a part. [See The Insular Cases, several 
U.S. Supreme Court cases decided early in the XX century, most of which 
deal with Puerto Rico's status as an unincorporated territory.'']
    Puerto Rico is a Spanish-speaking, Latin American nation of the 
Caribbean -and was, even before the U.S. acquired it by conquest in 
1898. Hence, it is not an independent territory. The only rational-and 
legal-alternative to colonialism under international law is 
independence.
    In 1960, the United Nations General Assembly adopted Resolution 
1514 (XV). Paragraph 5 of its dispositive part states that:

          5. Immediate steps shall be taken, in Trust and Non-Self-
        Governing Territories or all other territories which have not 
        yet attained independence, to transfer all powers to the 
        peoples of those territories, without any conditions or 
        reservations, in accordance with their freely expressed will 
        and desire, without any distinction as to race, creed or 
        colour, in order to enable them to enjoy complete independence 
        and freedom.

    http://daccess-dds-ny.un.org/doc/RESOLUTION/GEN/NR0/152/88/IMG/
NR015288.pdf?OpenElement
    Since then, this Resolution has been recognized as stating the 
international legal standard for decolonization. [See, the 
International Court of Justice decision in Western Sahara (1975) 
I.C.J., among other sources of International Law.]
    The right to self-determination and independence has also become 
part of customary international law. The U.S. Supreme Court has 
recognized international law as part of U.S. law. [See, The Paquete 
Habana, 175 U.S. 677 (1900).] Furthermore, since the United States is a 
signatory of the U.N. Charter, perhaps the most important multilateral 
treaty adopted by your country, self-determination, as the norm has 
developed under international law, is also treaty law and as such, 
under your constitution, the Supreme Law of the Land.
    Resolution 1514 (XV) is complemented in some aspects by Resolution 
1541 (XV), to which reference has been made in the preceding question 
regarding ``free association.'' This Resolution also recognizes that 
``integration,'' which might loosely be compared to U.S. federated 
statehood might, like ``free association,'' be regarded as a way out of 
colonialism. However, as long as Puerto Rico retains its distinct 
identity and culture, under International and Human Rights Law, it will 
continue to have an inalienable right to self-determination and 
independence. If the U.S. were to contemplate ``statehood'' for Puerto 
Rico, it should bear in mind that, in Puerto Rico's case, this would 
entail federated statehood with a right to secession.
    ''Statehood,'' currently favored by an increasing number of Puerto 
Ricans, is not generally a choice of loyalty to the United States, so 
much as a forced choice of colonial dependence. In the absence of 
sovereign powers to integrate into the global economy under the most 
beneficial terms to us as a developing country, economic dependence 
would increase under statehood. This means growing dependence on 
federal transfer payments to what would become the poorest state of the 
Union, with a congressional delegation considerably larger than that of 
your state of Alaska--indeed, larger than that of most states.
    Puerto Rico's right to secede as a federated state makes it a 
different case from the other 50 states. These became integrated after 
a sufficient number of mainland Americans had settled in each territory 
and any ``native'' population (such as in Alaska, Hawaii, or Native 
Americans elsewhere) became a subdued minority.
    As historical circumstances change, so can Puerto Rico's national 
sentiment. Statehood, therefore, would not be a good choice for us 
Puerto Ricans, or for you, Americans.
    The Puerto Rican Independence Party does not favor free association 
because there is nothing we could achieve under this status that could 
not be achieved by national sovereignty in independence through a 
Treaty of Friendship and cooperation, including free transit and free 
trade under mutually convenient terms with the United States, or any 
other free nation. Independence frees Puerto Rico to multiply sources 
of investment and job creation, while protecting Puerto Rico's and the 
United States' right of self-determination and territorial integrity.
    I shall be happy to respond to any additional questions you may 
wish to pose.
                                 ______
                                 
  Response of Jonathan G. Cedarbaum to Question From Senator Murkowski
    Question 1. In Mr. James' testimony, he refers to the Act of 
Congress that extended U.S. citizenship to USVI natives as establishing 
the date to differentiate between an ancestral native Virgin Islander 
and a native Virgin Islander. Do you agree with his assessment that the 
Act differentiated between the people of the Virgin Islands and 
conferred different legal status upon them?
    Answer. The proposed constitution for the United States Virgin 
Islands (``USVI'') would exempt from real property taxation the 
``primary residence or undeveloped land of an Ancestral Native Virgin 
Islander,'' a term defined to refer to, among others, individuals born 
or domiciled in the USVI on or before June 28, 1932 and not a citizen 
of a foreign country or descended from such individuals. See Proposed 
Const. art. 111, sec. 1; art. XI, sec. 5(g). In addition, the proposed 
constitution would limit certain offices and the right to vote in 
certain elections to Ancestral Native Virgin Islanders and ``Native 
Virgin Islanders,'' a term defined to refer to individuals born in the 
USVI after June 28, 1932 or descended from such individuals; and the 
proposed constitution would also specially guarantee the right to 
participate in certain elections to members of these two groups. See 
Proposed Const. art. 111, sec. 1; art. VI, sec. 3(d); art. XVII, secs. 
1(b), 2; art. XVIII, sec. 7.
    June 28, 1932 was the date of enactment of an Act of Congress 
extending United States citizenship to ``[a]ll natives of the Virgin 
Islands of the United States who, on the date of enactment of this 
[provision], are residing in [the] continental United States, the 
Virgin Islands of the United States, Puerto Rico, the Canal Zone, or 
any other insular possession or Territory of the United States, who are 
not citizens or subjects of any foreign country, regardless of their 
place of residence on January 17, 1917.'' Act of June 28, 1932, sec. 5, 
47 Stat. 336 (now codified at 8 U.S.C. 1406(a)(4) (2006)). In a prior 
statute enacted on February 25, 1927, Congress had granted United 
States citizenship to all persons born in the USVI after January 17, 
1917 (the date when the United States formally acquired the USVI, see 
Convention Between the United States and Denmark for Cession of the 
Danish West Indies, 39 Stat. 1706 (1916)) and subject to the 
jurisdiction of the United States, as well as to certain other 
categories of USVI natives and residents who were not then citizens or 
subjects of any foreign state--specifically, former Danish citizens who 
had resided in the USVI on January 17, 1917 and resided in the United 
States, Puerto Rico, or the USVI on February 25, 1927; natives of the 
USVI who resided in the USVI on January 17, 1917 and resided in the 
United States, Puerto Rico, or the USV1 on February 25, 1927; and 
natives of the USVI who resided in the United States on January 17, 
1917 and resided in the USVI on February 25, 1927. Act of February 25, 
1927, secs. 1, 3, 44 Stat. 1234, 1234-35 (now codified at 8 U.S.C. 
1406(a)(1)-(3), (b)).
    The Act of June 28, 1932 thus built upon prior legislation that had 
already conferred United States citizenship on broad categories of USVI 
natives and residents, including all individuals born in the USVI after 
the United States acquired the Islands, by extending citizenship to yet 
another category--USVI natives who resided in the United States or any 
United States territory when this legislation was enacted. We do not 
see how the date of enactment of this citizenship statute provides a 
rational basis for conferring a tax exemption and other advantages on 
individuals born in the USVI on or before that date or descended from 
such individuals. Thus, for the reasons explained in the Department's 
memorandum of February 23, 2010 and in the May 19, 2010 testimony of 
Deputy Assistant Attorney General Jonathan G. Cedarbaum, we believe 
that the benefits conferred on Ancestral Native Virgin Islanders and 
Native Virgin Islanders by the proposed constitution would likely be 
subject to challenge under the equal protection guarantee of the United 
States Constitution, which has been made applicable to the USVI by the 
Revised Organic Act.
                                 ______
                                 
    Response of Hon. Donna M. Christensen to Question From Senator 
                               Murkowski
    Question 1. If the Constitutional Convention were to reconvene and 
revise the proposed constitution, how would that impact the timing of a 
vote by the people and voter participation?
    Answer. Thank you for your question. I believe that it is the will 
of the Convention Delegates to have the proposed constitution on the 
ballot by this November, and I have been advised by the Virgin Islands 
Supervisor of Elections that as long as they receive it by October 15, 
this can be achieved. However, since it will be up to the Convention, 
if and when to proceed and how long to deliberate, it is difficult to 
determine if they would indeed by ready for this year.
                                 ______
                                 
 Responses of Hector J. Ferrer Rios to Questions From Senator Bingaman
    Question 1. Does the document ``Development of the Commonwealth,'' 
approved by the Governing Board of the Popular Democratic party on 
October 15, 1998, continue to represent the position of the Party 
regarding enhancements to the current PR-US relationship?
    If not, would you please provide the Committee with the Party's 
platform including its proposed enhancements to the current 
relationship.
    Answer. Since 1998 the Popular Democratic Party has approved a 
number of platforms and resolutions that in a way or another address 
the political status issue. The current platform, as I mentioned during 
the May 19th hearing, states:

          We support the autonomous development of the Commonwealth 
        based on the principles of shared sovereignty, association and 
        responsibilities with the Unites States. Sovereignty means that 
        the ultimate power of a Nation to handle its affairs rests with 
        the people. To address the status issue we must begin by 
        recognizing that sovereignty rests with the people. The concept 
        of sovereign Commonwealth seeks to have the Puerto Rican and US 
        governments agree on specific terms defining this mutual 
        relationship, with the American citizenship as the binding 
        element of our political association.''

    The use of the term ``sovereign Commonwealth'' in that platform, 
however, has been the subject of a great deal of distortion by 
Commonwealth detractors, some even trying to equate it with the concept 
of free association. That interpretation was expressly and flatly 
rejected by the party's Governing Board this past January, 2010.
    The juridical notion of the ``shared sovereignty'' nature of 
Commonwealth was recognized by the U.S. Supreme Court in Rodr!guez v. 
PDP, 457 U.S. 1, 8 (1982) when it stated: ``Puerto Rico, like a state, 
is an autonomous political entity, `sovereign over matters not ruled by 
the Constitution.''' A broader statement defining the Commonwealth's 
relationship with the federal government was provided by the First 
Circuit Court of Appeals in Cordova-Simponprieti v. Chase Manhattan 
Bank, 649 F.2d 36 (1st Cir. 1981):

          [In 1952] Puerto Rico's status changed from that of a mere 
        territory to the unique status of Commonwealth. And the federal 
        government's relations with Puerto Rico changed from being 
        bounded merely by the territorial clause, and the rights of the 
        people of Puerto Rico as United States citizens, to being 
        bounded by the United States and Puerto Rico Constitutions, 
        Public Law 600, the Puerto Rican Federal Relations Act and the 
        rights of the people of Puerto Rico as United States citizens.

    The party's 2008 platform is consistent with the case law.
    The 1998 Resolution you allude to was written in order to contain a 
number of aspirations intended to be negotiated with the United States 
in the event the people of Puerto Rico and the United States decide to 
deal, in a serious and fair way, with the P.R.--U.S. political 
relationship. There is no specific document or resolution overruling 
it. This document too has been the subject of distortion by 
Commonwealth opponents. If there is a particular question regarding a 
specific matter covered in that Resolution, I will gladly provide you 
with a detailed answer on that point. The Popular Democratic Party 
understands that enhancing the Commonwealth status requires a process 
of dialogue and negotiation with the federal government, and, thus, its 
adopted resolutions on this matter may constitute aspirations at a 
given point in time.
    In the past there have been several serious efforts between the 
U.S. and Puerto Rico to enhance the current Commonwealth status. In 
October,1975, an Ad Hoc Advisory Group on Puerto Rico appointed by 
President Nixon and Governor Hern ndez Col"n presented a ``Compact of 
Permanent Union Between Puerto Rico and the United States.'' A copy is 
attached. The proposed compact was the result of a process of studies, 
inquiries, public hearings, reports and discussions over a two year 
span. The group concluded that: ``in order to further develop 
Commonwealth towards the maximum of self-government and self 
determination within the framework of Commonwealth, as well as to 
provide guidelines concerning which statutory laws and administrative 
regulations of the United States should apply in Puerto Rico, a new 
compact of permanent union should be adopted to replace the Puerto 
Rican Federal Relations Act, section 4, Public Law 600, 1950.'' The 
Popular Democratic Party is open to that approach.
    During the 101th Congress, the House of Representatives unanimously 
passed a bill calling for a plebiscite on status. The House Report 
included the following definition of a ``New Commonwealth'':

          A NEW COMMONWEALTH RELATIONSHIP.--(A) The new Commonwealth of 
        Puerto Rico would be joined in a union with the United States 
        that would be permanent and the relationship could only be 
        altered by mutual consent. Under a compact, the Commonwealth 
        would be an autonomous body politic with its own character and 
        culture, not incorporated into the United States, and sovereign 
        over matters governed by the Constitution of Puerto Rico, 
        consistent with the Constitution of the United States.
          (B) The United States citizenship of persons born in Puerto 
        Rico would be guaranteed and secured as provided by the Fifth 
        Amendment of the Constitution of the United States and equal to 
        that of citizens born in the several States. The individual 
        rights, privileges, and immunities provided for by the 
        Constitution of the United States would apply to residents of 
        Puerto Rico. Residents of Puerto Rico would be entitled to 
        receive benefits under Federal social programs equally with 
        residents of the several States contingent on equitable 
        contributions from Puerto Rico as provided by law.
          (C) To enable Puerto Rico to govern matters necessary to its 
        economic, social, and cultural development under its 
        constitution, the Commonwealth would be authorized to submit 
        proposals for the entry of Puerto Rico into international 
        agreements or the exemption of Puerto Rico from specific 
        Federal laws or provisions thereof to the United States. The 
        President and the Congress, as appropriate, would consider 
        whether such proposals would be consistent with the vital 
        national interests of the United States on an expedited basis 
        through special procedures to be provided by law. The 
        Commonwealth would assume any expenses related to increased 
        responsibilities resulting from the approval of these 
        proposals.

    The Popular Democratic Party is also open to discuss this 
alternative or any other.
    The above examples demonstrate that this is a matter of political 
will. As Felix Frankfurter put it in 1914: ``The form of the 
relationship between the United States and [an] unincorporated 
territory is solely a problem of statesmanship. History suggests a 
great diversity of relationships between a central government and [a] 
dependent territory. The present day shows a great variety in actual 
operation. One of the great demands upon creative statesmanship is to 
help evolve new kinds of relationship[s] so as to combine the 
advantages of local self-government with those of a confederated union. 
Luckily, our Constitution has left this field of invention open . . . 
'' The outright rejection, without discussion, without a study, without 
any kind of serious process, of the possibility of improvements to the 
Commonwealth status has always been the result of a bias.
    Question 2. In January, 2001 the U.S. Department of Justice 
responded to this Committee's request for an analysis of the status 
options favored by the three principal political parties in Puerto 
Rico. Its analysis of Enhanced Commonwealth begins with the premise 
that ``All territory within the jurisdiction of the United States not 
included in any state must necessarily be governed by or under the 
authority of the Congress.'' Do you agree with this premise, and if not 
why not?
    Answer. The actual first premise in the Justice Department's 2001 
response was ``that the Constitution recognizes only a limited number 
of options for governance of an area.'' We do not agree with that 
premise. Instead we agree with Felix Frankfurter's 1914 statement to 
the effect that:

          The form of the relationship between the United States and 
        [an] unincorporated territory is solely a problem of 
        statesmanship. History suggests a great diversity of 
        relationships between a central government and [a] dependent 
        territory. The present day shows a great variety in actual 
        operation. One of the great demands upon creative statesmanship 
        is to help evolve new kinds of relationship[s] so as to combine 
        the advantages of local self-government with those of a 
        confederated union. Luckily, our Constitution has left this 
        field of invention open . . . 

    The statement that ``All territory within the jurisdiction of the 
United States not included in any state must necessarily be governed by 
or under the authority of the Congress'' is taken from the Supreme 
Court case of Bank v. Country of Yankton, 101 U.S. 129. 133 (1879) and 
reflects the state of constitutional thought in the mid to late 
nineteenth century. As of that date, the United States solely acquired 
territories with the intention of eventual statehood. Since then, 
however, the United States has acquired territories not intended for 
statehood, the Commonwealth of Puerto Rico was created and later the 
Commonwealth of the Northern Marianas. There have been developments in 
this area of constitutional law that Congress cannot ignore.
    In the specific case of Puerto Rico and its Commonwealth status, 
Country of Yankton must be read as substantially qualified by 
subsequent Supreme Court case law on this matter. The Court in Calero 
Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663 (1974), describes the 
fundamental changes that occurred with the creation of Puerto Rico's 
Commonwealth status in 1952:

          Following the Spanish-American War, Puerto Rico was ceded to 
        this country in the Treaty of Paris, 30 Stat. 1754 (1898). A 
        brief interlude of military control was followed by 
        congressional enactment of a series of Organic Acts for the 
        government of the island. Initially these enactments 
        established a local governmental structure with high officials 
        appointed by the President. These Acts also retained veto power 
        in the President and Congress over local legislation.

    The creation of the Commonwealth, as the Court suggests by voice of 
Justice Brennan, followed a materially different procedure,

          By 1950, however, pressures for greater autonomy led to 
        congressional enactment of Pub. L. 600, 64 Stat. 319, which 
        offered the people of Puerto Rico a compact whereby they might 
        establish a government under their own constitution. Puerto 
        Rico accepted the compact, and on July 3, 1952 Congress 
        approved, with minor amendments, a constitution adopted by the 
        Puerto Rican populace [ . . . ] Pursuant to that constitution 
        the Commonwealth now ``elects its Governor and legislature; 
        appoints its judges, all cabinet officials, and lesser 
        officials in the executive branch; sets its own educational 
        policies; determines its own budget; and amends its own civil 
        and criminal code'' (citing Leibowitz, The Applicability of 
        Federal Law to the Commonwealth of Puerto Rico, 56 GEO. L. J. 
        219, 221 (1967).

    The Calero Toledo Court recognized that the Commonwealth's creation 
effected ``significant changes in Puerto Rico's governmental 
structure.'' It then quoted at length, and with approval, from Chief 
Judge Magruder's observations in Mora v. Mejias, 206 F.2d 377 (1st Cir. 
1953) that:

          Puerto Rico has thus not become a State in the federal Union 
        like the 48 States, but it would seem to have become a State 
        within a common and accepted meaning of the word . . . . It is 
        a political entity created by the act and with the consent of 
        the people of Puerto Rico and joined in union with the United 
        States of America under the terms of the compact.

    Two years later, in Examining Board v. Flores de Otero, 426 U.S. 
572 (1976), the Court found that ``the purpose of Congress in the 1950 
and 1952 legislation was to accord to Puerto Rico the degree of 
autonomy and independence normally associated with States of the Union 
[ . . . ].'' The Court reasoned, moreover, that through the 
establishment of the Commonwealth, ``Congress relinquished its control 
over the organization of the local affairs of the island and granted 
Puerto Rico a measure of autonomy comparable to that possessed by the 
States.''
    The 2001 Department of Justice response is seriously incomplete in 
that it fails to recognize the implications of that last statement by 
the Supreme Court. In Yankton, the Court had stated that territories 
``must necessarily be governed by or under the authority of the 
Congress'', but the Court is saying in Flores de Otero that as to 
Puerto Rico, Congress ``relinquished its control over the organization 
of the local affairs.'' The Supreme Court did not say ``delegated'', or 
``authorized''. Its choice of words was ``relinquished''.
    That concept of ``relinquishment'' appears earlier in a Memorandum 
Re: Micronesian Negotiations (Office of Legal Counsel, Aug. 18, 1971), 
then Assistant Attorney General William H. Rehnquist recognized that:

          [T]he Constitution does not inflexibly determine the 
        incidents of territorial status, i.e., that Congress must 
        necessarily have the unlimited and plenary power to legislate 
        over it. Rather, Congress can gradually relinquish those powers 
        and give what was once a Territory an ever-increasing measure 
        of self-government. Such legislation could create vested rights 
        of a political nature, hence it would bind future Congresses 
        and cannot be ``taken backward'' unless by mutual agreement.

    No analysis of the Commonwealth status can ignore those cases and 
the statements that appear therein.
    The position of the Popular Democratic Party on this matter is 
clear and simple: the Commonwealth of Puerto Rico is not the result of 
an organic act, it arose from a process wherein Congress offered the 
people of Puerto Rico a compact and the people accepted the compact. 
Calero Toledo. In that process Congress relinquished its control over 
the organization of the local affairs of Puerto Rico. Flores de Otero. 
Puerto Rico, like a state, is an autonomous political entity, sovereign 
over matters not ruled by the Constitution. Rodriguez v PDP. Therefore,

          [In 1952] Puerto Rico's status changed from that of a mere 
        territory to the unique status of Commonwealth. And the federal 
        government's relations with Puerto Rico changed from being 
        bounded merely by the territorial clause, and the rights of the 
        people of Puerto Rico as United States citizens, to being 
        bounded by the United States and Puerto Rico Constitutions, 
        Public Law 600, the Puerto Rican Federal Relations Act and the 
        rights of the people of Puerto Rico as United States citizens. 
        Cordova Simonprieti v. Chase Manhattan Bank.

    Our opinion is shared by many renowned legal scholars. In his 2002 
book, Semblances of Sovereignty, Dean Alexander Aleinikoff from the 
University of Georgetown Law School devoted an entire chapter to the 
Commonwealth of Puerto Rico\1\. In reference to a 1991 testimony from 
Attorney General Richard Thornburgh before the U.S. Senate stating that 
the ``enhanced commonwealth'' status proposed was unconstitutional, he 
wrote:
---------------------------------------------------------------------------
    \1\ Aleinikoff, Alexander, SEMBLANCES OF SOVEREIGNTY, Chapter 4, 
Harvard University Press (2002).

          The Attorney General's reasoning seems to be this: the United 
        States Constitution knows only the mutually exclusive 
        categories of ``State'' and ``Territory.'' States are full and 
        equal members of the Union, but territories are subject to 
        plenary federal power. Such plenary power may be surrendered 
        only by moving outside the territory clause by granting 
        statehood or independence. To recognize congressional power to 
        create new categories--such as ``enhanced 
        commonwealth''.violates the structure of the Constitution and 
---------------------------------------------------------------------------
        potentially weakens the position of the states . . . 

    Rejecting that approach and making an implicit challenge to 
Congress, Dean Aleinikoff further states:

          The infamous Insular Cases recognized the need for 
        congressional flexibility in handling the unanticipated 
        situation of Empire. When flexibility is now, by mutual consent 
        of capital and former colony, exercised to restore dignity and 
        self-government, why should congressional power suddenly be 
        read narrowly?

    And more specifically Dean Aleinikoff asks Congress:

          the question is whether we can think ourselves into notions 
        of sovereignty that permit overlapping and flexible 
        arrangements attuned to complex demands of enhanced autonomy 
        with a broader regulative system of generally applicable 
        constitutional and human rights norms,'' responding that ``if 
        both Congress and the people of Puerto Rico seek to establish a 
        new relationship that recognizes space within the American 
        constitutional system for ``autonomous'' entities, it ill 
        behooves either the executive branch or the judiciary to set 
        such efforts aside in the name of nineteenth-century 
        conceptions of sovereignty.The Constitution should not be 
        read--out of fear and loathing of new understandings of 
        sovereignty--to prevent promising power-sharing arrangements 
        that provide a space for political and cultural autonomy.

    Similarly, in a recent memorandum, Professor W. Michael Reisman, 
Professor of International Law at Yale (2006), stated:

          Yet in the late twentieth and early twenty-first century, all 
        three branches of the U.S. federal government maintain legal 
        positions on Puerto Rico rooted firmly in a nineteenth-century 
        paradigm of international law . . . This binary division 
        (between states and territories), . . . is in fact, 
        anachronistic: It neither accurately reflects nor properly 
        accommodates the diverse political arrangements embodied in the 
        freely associated state of Puerto Rico, the CMNI, and the FAS. 
        Legally created at a later date, those arrangements better 
        represent current law.

    Professor Reisman further concludes:

          Should Puerto Rico decide that an ``enhanced'' commonwealth 
        status best serves its long term interests, U.S. constitutional 
        law, to our view would likely be able to accommodate that 
        arrangement . . . ; the barriers to enhance commonwealth status 
        are more political than legal.

    Another respected scholar, NYU Constitutional Law Professor Richard 
Pildes, has testified extensively before Congress\2\ that:
---------------------------------------------------------------------------
    \2\ Pildes, Richard, TESTIMONY BEFORE THE COMMITTEE ON NATURAL 
RESOURCES, SUBCOMMITTEE ON INSULAR AFFAIRS, U.S. HOUSE OF 
REPRESENTATIVES ON H.R. 900 and H.R. 1230, page 1, March 22, 2007.

          were the United States Congress and the people of Puerto Rico 
        to prefer expanding the existing Commonwealth relationship, in 
        a way that provides greater autonomy for Puerto Rico on the 
        basis of mutual consent, it would be unfortunate, even tragic, 
        for that option to disappear due to confusion or error about 
        whether the Constitution permits Congress to adopt such an 
---------------------------------------------------------------------------
        option.

    And he clearly concludes:

          Congress does have the power, should it choose to use it, to 
        enter into a mutual-consent agreement that would create and 
        respect more autonomous form of Commonwealth status for Puerto 
        Rico, in which Congress would pledge not to alter the 
        relationship unilaterally.

    Finally, Charles Cooper, a former head of the Office of Legal 
Counsel of the U.S. Department of Justice, in a recent memorandum\3\ 
stated that:
---------------------------------------------------------------------------
    \3\ Cooper, Charles, THE POWER OF CONGRESS TO VEST JURIDICAL STATUS 
IN PUERTO RICO THAT CAN BE ALTERED ONLY BY MUTUAL CONSENT, page 7, 
September, 2005 (Memorandum presented to the U.S. Department of Justice 
on behalf of the Government of Puerto Rico).

          there is no support for a reading of the Constitution that 
        unnecessarily restricts the political arrangements available to 
        the President and Congress in fashioning binding consensual 
        solutions to the Nation's relations with the people of its 
        territories,'' . . .  ``the relevant Supreme Court cases 
        confirm that Puerto Rico's commonwealth status is predicated 
        upon a binding compact, created through the mutual consent of 
        the sovereign parties and revocable, only by mutual consent of 
---------------------------------------------------------------------------
        the parties.

    Most recently, President Barack Obama, in a letter addressed to 
former Commonwealth Governor, Anibal Acevedo Vila, bluntly rejected the 
premises contained in the 2005 White House Task Force Report on Puerto 
Rico. Such Report based its legal findings on the above stated 2001 
U.S. Department of Justice opinion. President Obama stated the 
following:

          As President, I will actively engage Congress and the Puerto 
        Rican people in promoting this deliberative, open and unbiased 
        process, that may include a constitutional convention or a 
        plebiscite, and my Administration will adhere to a policy of 
        strict neutrality on Puerto Rican status matters. My 
        Administration will recognize all valid options to resolve the 
        question of Puerto Rico's status, including commonwealth, 
        statehood, and independence. I strongly believe in equality 
        before the law for all American citizens. This principle 
        extends fully to Puerto Ricans. The American citizenship of 
        Puerto Ricans is constitutionally guaranteed for as long as the 
        people of Puerto Rico choose to retain it. I reject the 
        assertion in reports submitted by a Presidential Task Force on 
        December 22, 2005 and December 21, 2007 that sovereignty over 
        Puerto Rico could be unilaterally transferred by the United 
        States to a foreign country, and the U.S. citizenship of Puerto 
        Ricans is not constitutionally guaranteed.

    See letter form presidential Candidate Barack Obama to Governor 
An!bal Acevedo Vila, dated February 12, 2008.
    Question 3. The fundamental characteristic of Enhanced Commonwealth 
is that of ``an autonomous political body, that is neither colonial nor 
territorial, in permanent union with the United States under a covenant 
that cannot be invalidated or altered unilaterally . . . ''. However, 
the Justice Department's 2001 analysis established a second premise 
that ``the U.S. cannot irrevocably surrender an essential attribute of 
its sovereignty''. As a consequence, the Department concludes that 
``the (New Commonwealth) proposal's mutual consent provisions are 
constitutionally unenforceable.''
    Do you agree or disagree with this Justice Department premise and 
conclusion?
    Answer. We disagree with the conclusion and do not think that it 
follows from the stated premise. The requirement of mutual consent 
exists under the current Commonwealth status from its inception without 
it ever having been considered to have entailed a ``surrendering'' of 
an ``essential'' attribute of U.S. sovereignty.
    In 1953 the United States advised the United Nations that it would 
no longer report on Puerto Rico as a ``non self-governing territory'' 
under Article 73(e) of the United Nations Charter.''\4\
---------------------------------------------------------------------------
    \4\ See ``Memorandum by the Government of the United States of 
America Concerning the Cessation of Transmission of Information Under 
Article 73(e) of the Charter with Regard to the Commonwealth of Puerto 
Rico,'' reprinted in PUERTO RICO FEDERAL AFFAIRS ADMINISTRATION, 
DOCUMENTS ON THE CONSTITUTIONAL RELATIONSHIP OF PUERTO RICO AND THE 
UNITED STATES, 616 (3D ED. 1988) (the ``Cessation Memorandum'' enclosed 
herein as Annex 6).
---------------------------------------------------------------------------
    In the Cessation Memorandum, the United States formally advised the 
United Nations that the incremental process of the ``vesting of powers 
of government in the Puerto Rican people and their elected 
representatives'' had ``reached its culmination with the establishment 
of the Commonwealth of Puerto Rico and the promulgation of the 
Constitution of this Commonwealth on July 25, 1952.''\5\ The Cessation 
Memorandum explicitly declares that, ``[w]ith the establishment of the 
Commonwealth of Puerto Rico, the people of Puerto Rico have attained a 
full measure of self-government.''\6\
---------------------------------------------------------------------------
    \5\ Cessation Memorandum at 616.
    \6\ Id.
---------------------------------------------------------------------------
    In describing the ``principle features of the Constitution of the 
Commonwealth,'' the Cessation Memorandum noted that the new 
Constitution, ``as it became effective with the approval of the 
Congress, provides that `[i]ts political power emanates from the people 
and shall be exercised in accordance with their will, within the terms 
of the compact agreed upon between the people of Puerto Rico and the 
United States of America.\7\''
---------------------------------------------------------------------------
    \7\ Id. at 620, quoting P.R. Const. art I, Sec. 1.
---------------------------------------------------------------------------
    Mason Sears, the United States Representative to the Committee on 
Information from Non-Self-Governing Territories, explained the legal 
significance under American law of the fact that Puerto Rico's 
Constitution resulted from a compact,

          A most interesting feature of the new constitution is that it 
        was entered into in the nature of a compact between the 
        American and Puerto Rican people. A compact, as you know, is 
        far stronger than a treaty. A treaty usually can be denounced 
        by either side, whereas a compact cannot be denounced by either 
        party unless it has the permission of the other.\8\
---------------------------------------------------------------------------
    \8\ Press Release No. 1741, United States Mission to the United 
Nation, at 2 (Aug. 28, 1953) (emphasis added).

    Moreover, Frances Bolton, U.S. Delegate to the United Nations' 
Fourth Committee, made it plain clear that while ``the previous status 
of Puerto Rico was that of a territory subject to the absolute 
authority of the Congress of the United States in all governmental 
matters [ . . . ] the present status of Puerto Rico is that of a people 
with a constitution of their own adoption, stemming from their own 
authority, which only they can alter or amend [ . . . ]''\9\
---------------------------------------------------------------------------
    \9\ Official Records of the U.N. General Assembly, Eighth Session, 
Fourth Committee, Trusteeship, at 225-26 (Nov. 3, 1953).
---------------------------------------------------------------------------
    Those statements are consistent with the analysis made in 1971 by 
then Assistant Attorney General William H. Rehnquist in the Memorandum 
Re: Micronesian Negotiations (Office of Legal Counsel, Aug. 18, 1971), 
which I have quoted in my answer to a previous question:

          [T]he Constitution does not inflexibly determine the 
        incidents of territorial status, i.e., that Congress must 
        necessarily have the unlimited and plenary power to legislate 
        over it. Rather, Congress can gradually relinquish those powers 
        and give what was once a Territory an ever-increasing measure 
        of self-government. Such legislation could create vested rights 
        of a political nature, hence it would bind future Congresses 
        and cannot be ``taken backward'' unless by mutual agreement.

    There can be no other conclusion that when Congress has 
relinquished powers to a territory, it can not claim those powers back, 
except by mutual consent. See Flores de Otero.
    Question 4. The enhanced commonwealth proposal of October 15, 1998, 
states that the new covenant ``will include a mechanism to approve the 
application of legislation approved by the U.S. Congress.'' Given the 
history between the Federal and State governments on the issue of the 
applicability of Federal law to the states, particularly the experience 
of the U.S. Civil War, why do you believe a majority of the members of 
Congress would agree to such a mechanism under a covenant with Puerto 
Rico?
    Answer. The proposal of a mechanism to exempt Puerto Rico from the 
automatic application of federal law is justified by a fundamental 
difference between the Commonwealth of Puerto Rico and a State: Puerto 
Rico, unlike the States, has no voting representation in Congress. Thus 
federal law is approved without its participation.
    Such mechanisms have been examined in the past by Congress. The 
1990 legislation approved in the House, provided in the House Report 
that:

          To enable Puerto Rico to govern matters necessary to its 
        economic, social, and cultural development under its 
        constitution, the Commonwealth would be authorized to submit 
        proposals for the entry of Puerto Rico into international 
        agreements or the exemption of Puerto Rico from specific 
        Federal laws or provisions thereof to the United States. The 
        President and the Congress, as appropriate, would consider 
        whether such proposals would be consistent with the vital 
        national interests of the United States on an expedited basis 
        through special procedures to be provided by law. The 
        Commonwealth would assume any expenses related to increased 
        responsibilities resulting from the approval of these 
        proposals.

    The 1975 proposed ``Compact of Permanent Union Between Puerto Rico 
and the United States.'' developed by an Ad-Hoc Advisory Group 
appointed by President Nixon and Governor Hernandez Colon proposed a 
more elaborate mechanism:

          Prior to final passage of any legislation applicable to the 
        Free Associated State, the Governor or Resident Commissioner 
        thereof shall be entitled to submit to the Congress objections 
        as to the applicability of said legislation to the Free 
        Associated State, whereupon Congress shall specifically act 
        upon those objections so as to determine whether the proposed 
        law is essential to the interests of the United States and is 
        compatible with the provisions and purposes of this Compact. If 
        the respective committee or committees by vote express 
        agreement with the objections, the Free Associated State will 
        be held exempt from those affected provisions of the proposed 
        law in the event of its final enactment. Provided, That this 
        paragraph shall not apply to proposed laws which directly 
        affect the rights and duties of citizens, security and common 
        defense, foreign affairs, or currency.

    Article 12 of the Compact.
    It is in the interest of both Puerto Rico and the United States to 
adopt a provision to that effect in order to resolve an undemocratic 
condition.
 Responses of Hector J. Ferrer Rios to Questions From Senator Murkowski
    Question 1. Among the status options put forward by the 
Presidential Task Force is that of Free Association, which is not 
represented on the panel this morning. How would you define the Free 
Association option?
    Answer. Before addressing the question, I must clarify that the 
Popular Democratic Party does not advocate for the Free Association 
option. We support the development of the Commonwealth option.
    As adopted by the United States in the case of the Palau, 
Micronesia and the Marshall Islands, Free Association has the following 
characteristics: 1-they are compacts between independent nations; 2-
with a specific duration; 3-where the people of the country associated 
with the U.S. are not U.S. citizens; 4-where federal aid is limited to 
certain areas.
    Question 2. Do you believe the four options put forward by the 
Presidential Task Force and in the House bill are the only legitimate 
and viable options for Puerto Rico's political status?
    Answer. I do not believe that the options put forward and as 
defined by the President's Task Force on Puerto Rico Status are the 
only viable options for Puerto Rico's political status. If we accept 
that conclusion, it would be a narrow reading of the US Constitution 
that would also portray the limitations and inflexibility of 
Congressional power. I believe there is no support for a reading of the 
Constitution that unnecessarily restricts the political arrangements 
available to the President and Congress in fashioning binding 
consensual solutions to US relations with the people of its 
territories.
    In terms of International Law, that conclusion has no merit either. 
The United Nations has said that the establishment of a sovereign and 
independent State, the free association or integration with an 
independent State or the emergence into any other political status 
freely determined by a people constitute modes of implementing the 
right of self-determination by that people.\10\
---------------------------------------------------------------------------
    \10\ UN Resolution 2625 (XXV): Declaration on Principles of 
International Law Concerning Friendly Relations and Cooperation among 
States in accordance with the Charter of the United Nations.
---------------------------------------------------------------------------
    There is no justification for Congress to shut the doors to any 
enhancement possibilities for Commonwealth. It must overcome the 
inertia created in the past two decades and allow for a serious debate 
on this matter.
                              Appendix II

              Additional Material Submitted for the Record

                              ----------                              

Statement of Luis A. Delgado Rodriguez and Senator Jose A. Ortiz-Daliot 
              Alliance for Sovereignty in Free Association
    Mr. Chairman and members of the Committee:
    We are, Luis A. Delgado Rodriguez and Senator Jose A. Ortiz-Daliot, 
spokespersons for ALAS -Alliance for Sovereignty in Free Association, a 
non-colonial and non-territorial political formula which is growing in 
support in Puerto Rico. As a matter of fact, two polls released last 
week by two of the main radio stations on the island, placed ``free 
association'' with a 13% and 17% percent of electorate support. This is 
a significant achievement, considering Free Association has never had 
the support of a political structure.
    We come before you to share our views on HR2499, the latest effort 
for decolonizing Puerto Rico.
    Mr. Chairman, the US preaches freedom and democratic values from 
its bully pulpit as the sole super-power in the world. In some 
instances, it even resorts to military intervention in its efforts to 
promote freedom around the world. Ironically, the U.S. breaches its 
values in its own backyard, particularly when dealing with its colonial 
possessions. The US declared its independence from one of the greater 
colonial powers in the world (at that time), the United Kingdom, and 
then fought another colonial power in 1898--Spain, when it acquired 
Puerto Rico. Today, notwithstanding, it has replaced both of these 
countries as the main colonial power in the world, holding more than 
4.5 million people as colonial subjects in American Samoa, Mariana 
Islands, Guam, the Virgin Islands, and Puerto Rico. Shameful, to put it 
mildly. It seems this great country is satisfied to tell the world ``do 
as I say, not as I do.'' Why? To us, it is incomprehensible, 
particularly when the international community is in its second decade 
of attempting to end colonialism in the world.
    You would believe the US would be leading this effort, but it is 
not. To the contrary, it utilizes XX century rhetoric to avoid its duty 
to lead a true effort to decolonize its own backyard. Puerto Rico, as 
the chairman described it recently in a news article, is an 
unincorporated territory of the U.S., as labeled by the Supreme Court 
in the now famous insular cases, decided at the beginning of the XX 
century. So even after the creation of the Commonwealth in 1952, it 
remains an unincorporated territory which is nothing more than a 
different label for a US colonial possession.
    Many say it is a self-governing commonwealth, after the US 
government tricked the UN into releasing the US from its duty to report 
annually on Puerto Rico as a territory under Article 73 of the UN 
Charter by approving UN Resolution 748 on November 27, 1953. 
Ironically, that very same day the UN approved Resolution 742 which 
described the necessary elements needed to release a colonial power 
from its duties under Article 73. The creation of the Commonwealth did 
not meet the criteria set forth by the UN on November 27, 1953 by 
Resolution 742 (VIII) particularly because neither the government of 
the US or Puerto Rico provided freedom of choice to the people of 
Puerto Rico (the freedom of choosing on the basis of the right of self-
determination of peoples between several possibilities, including 
independence). The US had not met said requirement. Notwithstanding UN 
Resolution 748 was approved, mainly due to the US influence as a super-
power, right after World War II.
    The Commonwealth of Puerto Rico option has never had the attributes 
of a self governing jurisdiction. A self governing entity should be 
able to handle its everyday affairs of its people. Puerto Rico cannot.
    Lets briefly examine the self-governing attributes of the 
Commonwealth of Puerto Rico and afterwards decide if Puerto Rico is 
``really and effectively'' a self-governing jurisdiction. Let's take a 
close look at several areas in which the daily affairs of our people 
are conducted and which under normal circumstances should be under the 
purview of the government of Puerto Rico. The few examples which follow 
should be sufficient to illustrate our point:

          1. The government of Puerto Rico doesn't has the legal 
        authority to decide the best mode of maritime transportation 
        for the products, edibles and other food items which are 
        imported from the US, therefore, its people do not have access 
        to these products in the most efficient and inexpensive way, 
        without having to pay the most expensive mode of maritime 
        transportation in the world. The government of Puerto Rico does 
        not have said authority since maritime transportation is 
        regulated by the US Congress as a way of subsidizing its non-
        competitive and most expensive shipping industry. Therefore, 
        this is not self-government.
          2. The US government excludes, as a general rule, Puerto Rico 
        from its tax treaties since the island is considered a foreign 
        tax jurisdiction. Notwithstanding, the US denies Puerto Rico 
        its tax-treaty making power. Consequently, Puerto Rico may not 
        reap the benefits from negotiating tax treaties with other 
        countries. This is not self-government.
          3. Puerto Rico may import Peugeot cars directly from France? 
        It cannot. Every vehicle entering Puerto Rico has to comply 
        with the US Congressional mandated standards. So Puerto Rico is 
        forced to buy only automobiles authorized to entry into the US. 
        This, my fellow senators is not self-government.
          4. Puerto Rico may not set its own set of environmental 
        statutory standards unless, of course, they are more stringent 
        than US laws. This is not self-government.
          5. US minimum wage laws do not apply to Puerto Rico? They do, 
        so Puerto Rico may not even set its own minimum wage, even 
        though it is the poorest jurisdiction under the US flag. 
        Therefore, this is not self-government.
          6. The government of Puerto Rico or its residents may 
        purchase medications in the international market, consequently 
        saving millions of dollars. No, all medicines sold on the 
        island need FDA approval, so a jurisdiction with a per capita 
        income fifty percent (50%) lower than Mississippi, has to pay 
        extraordinary high prices since only FDA approved medicines may 
        be sold in Puerto Rico. This again, is not self-government.

    We could go on forever, providing you examples of the lack of self-
government authority the government of Puerto Rico has, but with a few 
of them, should be enough. But, why is our self governing authority so 
limited? Simple, Puerto Rico is subject to the plenary powers of 
Congress under territorial clause of the US Constitution and thus 
subject to every act of Congress whether it makes sense or not. And 
that fact, dear Senators, is not self-government. It is a subordinated 
government.
    What we have described above, is a total subordination to the 
federal government. That is why we have labeled the commonwealth 
arrangement as territorial and colonial in nature. Puerto Rico is a 
colonial possession of the US, though the US Supreme Court may call it 
whatever they want. The Senate should take notice of this; stop looking 
the other way and take steps to decolonize Puerto Rico, as well as the 
other US territories, NOW.
    At ALAS, we would like to see a Free Association arrangement much 
like the treaties the US has negotiated with three nations in the 
Pacific. But we recognized that the people of Puerto Rico should be 
able to choose among the three (3) non-colonial options of statehood, 
independence and free association. Not like what occurred in 1952, when 
the present Commonwealth was imposed to the Puerto Rican people.
    HR-2499 is not perfect, but at least, as it had been originally 
drafted the second round offer three political options which are non-
colonial in nature. The Foxx amendment damaged the bill. The bill 
should only include options which are non-colonial and not-territorial. 
The commonwealth is neither, and consequently should not be an option, 
unless, as usual, the colonial power (the US Congress) imposes it as an 
option. The Senate could fix HR-2499 or simply take appropriate action, 
as long as it does not take 112 more years.
    Thank you for the opportunity for submitting our comments on HR-
2499.
                                 ______
                                 
              Statement of Governor John P. De Jongh, Jr.
    On behalf of the people of the Virgin Islands, I am grateful to the 
Chairman and Members of Committee on Energy and Natural Resources for 
providing me with this opportunity to again express my strong 
opposition to certain elements of the proposed Constitution of the 
Virgin Islands, and my equally strong conviction that it is the people 
of the Virgin Islands, and not the members of this Congress, who should 
be permitted freely to accept or reject their own Constitution on its 
merits.
                           opening statement
    As you know, in March I came to Washington and appeared before the 
House Subcommittee on Insular Affairs to explain my view that the 
proposed Virgin Islands Constitution is contrary to basic principles of 
the Federal Constitution, in that, among other things, it creates 
invidious distinctions between Virgin Islanders based on their heritage 
and ancestry; violates the sacred democratic principles of ``one man, 
one vote''. and willfully fails to recognize the supremacy of the 
United States, its Constitution, and its laws. I further explained that 
regardless of its legal infirmities, the proposed constitution was 
unacceptable to me because it was wholly inconsistent with our 
fundamental values as Virgin Islanders-values like equality before the 
law and our very identity as Americans.
    Despite those grave misgivings, however, I asked the House 
Subcommittee to leave it to us-to the people of the Virgin Islands that 
the proposed constitution would purport to govern-to either remedy the 
document's manifest deficiencies or reject it outright. The proposed 
constitution is not merely a legal document; it is, however flawed, a 
symbol of the Virgin Islands' right to self-determination. To take from 
us the opportunity to consider (and, I hope, reject) the proposed 
constitution in our own democratic process would be a bitter irony, and 
would vitiate the very purpose that the constitutional process is meant 
to serve.
    I made those remarks to the House two months ago. I reaffirm them 
here today. The intervening months have only strengthened my conviction 
that the proposed constitution, despite its many flaws, must be 
returned to the people of the Virgin Islands for acceptance or 
rejection by referendum. That referendum will represent another 
important step in the Islands' struggle for true self-governance-a 
struggle that has lasted for decades, even centuries, and in which I 
hope and intend we will prevail during my administration.
the virgin islands' commitment to local, constitutional self-governance
    Before I discuss the proposed constitution and what I believe to be 
its serious deficiencies, I must re-affirm the fundamental principle 
that the proposed constitution represents: the right of the people of 
the Virgin Islands to govern themselves.
    As you know, the Virgin Islands became part of the United States in 
1917. From the earliest days of their assimilation into the American 
republic, the people of the Virgin Islands have relentlessly pursued 
increased self-government and Home Rule. And after decades of tireless 
effort, we have achieved a great deal. We now elect our own Governor 
and Legislature. We draft our own laws, and constitute our own Supreme 
Court to administer them. All of this represents progress-progress 
toward the deeply American goal of local self-determination within the 
federal system. And there is no more significant step in reaching that 
goal than drafting and ratifying our own constitution.
    This is not an easy thing. Ours is a long and unique political 
history, unlike that of any other part of the United States. A 
constitution acceptable to the people of the Virgin Islands must both 
honor that history and reflect the very best traditions of democratic 
self-governance. We have been pursuing such a constitution now for 
thirty-four years: since 1976, we have elected five constitutional 
conventions, but have not ratified a constitution. It is fair to say we 
have struggled with this gravest of political responsibilities. But 
these struggles are inherent in democracy itself. No document produced 
by a constitutional convention will be perfect: as you know, even this 
nation's Constitution emerged from the constitutional convention 
without the Bill of Rights that has come to define American liberty. 
The Bill of Rights came later, when the people of this country, asked 
to ratify the original document, demanded it.
    The constitution proposed by our own constitutional convention is 
much more severely flawed: it violates the very rights that the Bill of 
Rights seeks to protect. But the people of the Virgin Islands, like the 
people of the original States, must be the ones to demand better. To 
deny them the opportunity to do so would set back the cause of self-
governance far more than the proposed constitution itself, despite its 
flaws, ever could. Only when we are presented with a constitution that 
is of Virgin Islanders, by Virgin Islanders, and for Virgin Islanders 
can our Islands reach the fullness of their political maturity and 
their place within the American system. It is a goal to which I and my 
fellow Virgin Islanders have always been, and remain, deeply committed. 
We have been waiting a long time.
  the proposed constitution violates the federal constitution and is 
       contrary to the values of the people of the virgin islands
    For the convention delegates, the drafting of the proposed 
constitution was a difficult task, and in many ways a thankless one. It 
is, therefore, with great reluctance and disappointment that I have 
concluded that, in too many respects, the document they produced is not 
worthy of the people of the Virgin Islands. Most disturbingly, the 
proposed constitution divides the people and declares that some of them 
have more rights than, and should be given legal and financial 
preference over, others.
    The legal and constitutional deficiencies of the proposed 
constitution are obvious on their face, and have been extensively 
documented by every competent lawyer to consider them-including the 
convention's own legal counsel. You have the benefit of the Department 
of Justice's memorandum of February 23, 2010 (hereinafter ``DOJ Memo,'' 
and attached as Appendix A), as well as the Virgin Islands Attorney 
General's opinion of June 9, 2009 (hereinafter the ``USVI AG Opinion,'' 
attached as Appendix B), both of which set forth some of those 
deficiencies in detail. Taken together, those deficiencies do not only 
render the document unlawful; they also render it profoundly contrary 
to the most cherished values of the people of the Virgin Islands. I 
will describe three of them briefly here today.
    First, the current constitutional proposal fails to recognize the 
supremacy of the ``Constitution, treaties, and laws of the United 
States.'' It is required to do by law, pursuant to the 1976 law 
authorizing a Virgin Islands constitution, and its failure to do so is 
intentional and egregious. Because of the lack of a supremacy clause, 
the proposed constitution's assertion of ``sovereignty'' over coastal 
waters in Article XII, Section 2 can be read to ``derogate from the 
sovereignty of the United States over those waters.'' DOJ Memo at 16. 
As the Department of Justice has pointed out, the proposed 
constitution's assertion of sovereignty over inter-island waters ``up 
to twelve nautical miles from each island coast'' is flatly 
inconsistent with federal law. Id. A supremacy clause would resolve 
this ambiguity by making it clear that the Virgin Islands does not 
claim any more than what it is due under federal and international law. 
Without it, DOJ concluded that the coastal waters provision must be 
modified or removed because it is ``inconsistent'' with ``Congress' 
plenary control'' over U.S. territorial sea. DOJ Memo at 16.
    The lack of a supremacy clause is not merely a legal failure. It is 
also a symbolic failure, with political and historical implications. To 
formally recognize the supremacy of the Federal Constitution is to 
affirm, in our fundamental political document, that we are the United 
States Virgin Islands. It is an essential symbol of the Virgin Islands' 
place within the American system-and of Virgin Islanders' identities as 
Americans. For reasons of both law and principle, the failure to 
recognize the supremacy of the U.S. Constitution is a grave error, and 
of itself would justify the rejection of the proposed constitution by 
the people of the Virgin Islanders.
    Second, and more important, the proposed constitution openly 
creates invidious distinctions among the people of the Virgin Islands, 
and confers special political and economic benefits upon favored 
classes of ``native'' and ``ancestral native'' Virgin Islanders.
    I cannot overstate the repugnance of those distinctions. There is 
no more fundamental American value than the self-evident truth that all 
men are created equal, and as such, are entitled to equal protection of 
the laws. The Fourteenth Amendment of the United States Constitution 
protects this value. And ever since Brown v. Board of Education of 
Topeka, the Supreme Court has made clear that government may not drive 
a wedge between its citizens based on the accident of their birth. The 
proposed constitution, unfortunately, does just that.
    Article III of the proposed constitution divides its citizens into 
three classes. The first class, termed ``Ancestral Native Virgin 
Islanders,'' principally includes any person, or any descendants of any 
person, born or domiciled in the Virgin Islands before June 28, 1932. 
The second class, termed ``Native Virgin Islanders,'' includes any 
person, or any descendant of any person, born in the Virgin Islands 
after June 28, 1932. The third class, without a name in the proposed 
constitution, includes everyone else. These classifications depend 
entirely on the timing and place of one's birth, the timing of one's 
residency, and the birth or residency of one's ancestors.
    Having so divided its citizenry in Article III, the proposed 
constitution goes on to apportion benefits and burdens based on those 
divisions. For example, Article XI, Section 5 authorizes the Senate to 
levy and collect property taxes. But it contains an exemption providing 
that ``No Real Property tax shall be assessed on the primary residence 
or undeveloped land of an Ancestral Native Virgin Islander.'' In other 
words, some Virgin Islanders would pay these property taxes; others, by 
virtue of their birth or ancestry, would not.
    Article XVII, Section 2 provides for a special election on ``status 
and federal relations options,'' i.e., an election devoted to the 
Islands' status as a U.S. Territory. But it contains a strict 
limitation that it is ``reserved for vote by Ancestral Native and 
Native Virgin Islanders only, whether residing within or outside the 
territory.'' In other words, some Virgin Islanders would have the right 
to vote in these elections; others, by virtue of their birth or 
ancestry, would not.
    Article XVIII, Section 7 of the proposed constitution appears to 
permit citizens of the Virgin Islands to ratify future constitutional 
amendments by a majority vote. It further provides, however, that 
``Ancestral and Native Virgin Islanders, including those who reside 
outside the Virgin Islands or in the military, shall have the 
opportunity to vote on Constitutional Amendments.'' In other words, 
some non-residents, by virtue of their birth or ancestry, would have 
the right to vote on constitutional amendments; others would not.
    Finally, Article VI, Section 3 provides for the election of a 
Governor and Lieutenant Governor. But eligibility for those offices is 
tightly restricted: both the Governor and Lieutenant Governor must ``be 
an Ancestral or Native Virgin Islander.'' In other words, some Virgin 
Islanders would have the right to seek these elected offices; others, 
by virtue of their birth or ancestry, would not.
    In short, the proposed constitution uses birth and ancestry to 
exempt some Virgin Islanders from property taxes; to give some Virgin 
Islanders the exclusive right to vote in important special elections; 
to give some Virgin Islanders preferential rights to vote on 
constitutional amendments; and to give some Virgin Islanders the 
exclusive right to hold the offices of Governor and Lieutenant 
Governor. Those who by birth or ancestry do not enjoy favored 
``native'' status have none of these rights.
    All of these provisions conferring legal advantages on ``natives'' 
are manifestly unconstitutional. The Department of Justice found it 
``difficult to discern a legitimate governmental purpose'' that the 
provisions could possibly serve. DOJ Memo at 1, 7, 8, 10. My own 
attorney general had the same difficulty. See ``USVI AG Opinion at 2, 
8, 10, 11. And so do I. Even under the most deferential ``rational 
basis'' standard, the provisions violate the Equal Protection Clause of 
the Fourteenth Amendment.
    Again, however, the offensiveness of these nativist preferences is 
not wholly a function of their illegality. It is more important that 
they are 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.
    A constitution is not merely a law, or even a law of laws. It not 
only governs us; it constitutes us. It is the tangible expression of 
our values, and a source of our identity as a people. A constitution 
that would carve us up into factions, based solely upon our origins and 
the circumstances of our birth, is one that does not reflect the values 
of Virgin Islanders, and the identity it creates is one I do not wish 
to share.
    Third, the proposed constitution divides the Virgin Islands in 
another unconstitutional respect. Article V, Section 2 of the proposed 
constitution establishes a new method for apportioning seats in the 
Senate, which creates a Senate seat exclusively for the island of St. 
John. That apportionment serves to overrepresent St. John and 
underrepresent the other islands of St. Thomas and St. Croix relative 
to their populations.
    Such lopsided apportionment gives St. John a vastly greater share 
of power in the 15-member Senate than its population warrants, and for 
that reason, both my Attorney General and the Department of Justice 
have concluded that it probably violates the Equal Protection Clause of 
the Fourteenth Amendment and the bedrock principle of ``one person, one 
vote.'' See DOJ Memo at 13-15; USVI AG Op. at 13-14.
    Because the proposed constitution's apportionment scheme is a sharp 
break from the past resulting in a large representation disparity, it 
likely has no legally sufficient justification. Although the Supreme 
Court has warned that states must make an effort to construct districts 
that are as close as possible to having equal populations, the proposed 
constitution suggests that such an effort was not made. Apportionment 
can be difficult and complicated, but it must be done in a manner 
designed to ensure ``one person, one vote.'' The constitutional 
convention's failure to heed this requirement places a cloud of 
constitutional uncertainty over the apportionment provisions.
    The creation of the St. John Senate seat is nevertheless of a piece 
with the other objectionable parts of the proposed constitution: Like 
preferences for ``natives,'' it gives preferential treatment to one 
class of Virgin Islanders over all others-this time, residents of St. 
John. As such, it is likely to be a source of substantial resentment 
and divisiveness in the Virgin Islands. And like the ``native'' 
provisions, it is inconsistent with basic principles of fairness and 
equality-principles that, as Americans and as Virgin Islanders, are 
deeply rooted in our shared values.
 correction of the proposed constitution's deficiencies should be left 
                  to the people of the virgin islands
    The flaws in the proposed constitution are so blatant, and so 
contrary to the best traditions of democratic self-governance, that I 
am tempted to seek the document's rejection by any means necessary. But 
that is a temptation that I resist, and that I must ask you to resist 
as well. For as passionate as I am in rejecting the inequalities and 
preferences embodied in the proposed constitution, I am equally 
passionate about the importance of leaving the fate of this document in 
the hands of those it would purport to govern-the people of the Virgin 
Islands.
    There is no question that Congress has the power, implicit in the 
governing statute and inherent in its legislative authority, to reject 
the proposed constitution outright. It also has the power to modify the 
proposed constitution and return it, as modified, for a vote in the 
Virgin Islands. The minority members of the constitutional convention 
have proposed exactly that. See Letter to The Hon. Donna M. 
Christensen, Jan. 29, 2010 (``Minority Letter,'' attached as Appendix 
D).
    But I must urge the Congress not to exercise its power to modify or 
reject the constitution. I have great respect and admiration for those 
minority members who have spoken out on this matter; but I seek 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 to true local self-governance.
    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 I believe that they 
ultimately will. But I just as strongly believe that such a decision 
belongs with the people of the Virgin Islands.
                               conclusion
    In conclusion, my position today remains the one I articulated 
before the House two months ago. 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.
                                 ______
                                 
  Statement of the Hon. Eni F. H. Faleomavaega, Delegate of American 
                  Samoa, U.S. House of Representatives
                               on hr 3940
    Chairman Jeff Bingaman, Ranking Member Lisa Murkowski, 
Distinguished Members of the Senate Committee on Energy and Natural 
Resources:
    I extend to you my deepest gratitude and appreciation for allowing 
me to submit statement for the record in strong support of H.R. 3940. 
This piece of legislation authorizes federal grant funding to 
facilitate political status public education programs in American 
Samoa, Guam and the U.S. Virgin Islands.
    I want to acknowledge the leadership of the Chairwoman of the 
Subcommittee on Insular Affairs, Oceans and Wildlife, my good friend 
Ms. Madeleine Bordallo. While this bill was originally intended for 
Guam, Chairwoman Bordallo heeded a request that the assistance provided 
for under H.R. 3940 is extended to include American Samoa and the US 
Virgin Islands.
    Mr. Chairman and distinguished members of the Committee, the 
question of political status continues to underscore many of the policy 
issues that the territorial governments faced. Addressing this ongoing 
issue is the prerogative of the people. Nonetheless, Congress has a 
constitutional responsibility to help the territorial governments 
decide their political status according to the peoples' aspirations. 
This bill embodies such responsibility.
    Under H.R. 3940, the Secretary of Interior is authorized to extend 
much needed assistance to the three territorial governments, American 
Samoa, Guam and the US Virgin Islands, to facilitate a public education 
program regarding political status options. This includes assistance in 
the form, of grants, research, planning assistance, studies, and 
agreements with Federal agencies, to better educate and inform the 
public about various valid political status options and alternatives 
for the territories.
    For American Samoa, political relationship with the United States 
government is based on two separate deeds of cessions: between the U.S. 
and Tutuila and Aunu'u in 1900; and U.S. and Manu'a in 1904. Under 
Title 48 U.S. Code Section 1661 (c), Congress delegated all civil, 
judicial, and military powers over American Samoa to the President. 
Subsequently, by Executive Order 10264, these powers were transferred 
to the Secretary of the Department of Interior (DOI).
    As of today, American Samoa remains an unorganized and 
unincorporated territory of the United States. After more than 100 
years since the two deeds of cession were signed, the local government 
of American Samoa is conducting a review of its political status. This 
bill, H.R. 3940 will go a long way to facilitating this process.
    Mr. Chairman, I am pleased that Congress remains committed to the 
territorial governments and the people living in the insular areas. The 
program and assistance provided for under HR 3940 would certainly 
enhance public knowledge and enable Americans living in the insular 
areas realize their aspirations for a formalized political status with 
the United States government.
    I urge you and members of the Senate Energy and Resources Committee 
to support H.R. 3940.
                                 ______
                                 
  Statement of Zoraida Fonalledas, Republican National Committeewoman 
                     From Puerto Rico, on H.R. 2499
House record on H.R. 2499 makes Senate action urgent
    The Republican Party of Puerto Rico supported H.R. 2499 in the 
House of Representatives. The debate on H.R. 2499 in the House, in 
Puerto Rico, and in the local and national media, confirmed once again 
that ultimately Congress must define the political status options 
available to four million U.S. citizens in Puerto Rico. The U.S. Senate 
itself confirmed that only Congress can determine the political status 
options available to Puerto Rico, when it adopted Senate Resolution 279 
on September 17, 1998. The only problem was that S. Res. 279 failed to 
state what options the Senate deemed compatible with federal law, and 
would be willing to consider if approved by a majority in a locally 
conducted advisory status referendum.
    In light of House passage of H.R. 2499, action by the Senate to 
affirm status alternatives that Congress is willing to consider for 
Puerto Rico is now urgently necessary. If the Senate fails to act in 
concert with the House in some manner that ends confusion over status 
options demonstrated by past local votes, then Congress will be 
repeating its 1998 abdication of constitutional responsibility to 
affirmatively manage disposition of federal territories. The mixed 
message from House and Senate actions in 1998 contributed to yet 
another inconclusive local status vote. While the 1998 vote advanced 
the status resolution process, it did so in a confusing and vexatious 
way that makes Congressional guidance now more necessary than ever.
    In this historical context, we do not need to be reminded here in 
Washington or back in San Juan that the duly-constituted local 
government has the authority to conduct a referendum on locally 
formulated status options. We also know a constitutional convention can 
be called, and proposed amendments to the territorial constitution can 
be submitted to the voters. We do not need Congress to authorize a 
local constitutional convention, proposed as a delaying tactic by the 
commonwealth party.
    These local government initiatives are possible already and have 
always been available as tools of the current limited local self-
government we have had for 60 years under ``commonwealth.'' Indeed, 
these local powers of self-determination were allowed by permission of 
Congress when it approved Article VII of the Puerto Rico constitution, 
with amendments Congress required to confirm the supremacy of federal 
law applied to Puerto Rico under Article IV, Section 3, Clause 2 of the 
U.S. Constitution.
    So it is clear what we can do under ``commonwealth'' to address our 
aspirations for self-government locally, and we know that self-
government under ``commonwealth'' is limited to local matters not 
otherwise governed by federal law. Thus, despite the sympathetic but 
gratuitous verbiage in a few federal court rulings that nevertheless 
remain within the confines of Insular Cases jurisprudence, the 
``commonwealth'' model of federal-territorial relations does not create 
a zone of local sovereignty beyond the reach of Congress and the 
supremacy of federal law.
    It also is clear to any rational person what we are not empowered 
or enabled to do under ``commonwealth.'' When it comes to addressing 
the political status question which is paramount over all other issues 
in Puerto Rico, the most important thing we are unable to do under the 
local constitution is formulate through any local political process 
definitions of the political status options Congress will accept as 
consistent with federal law, and be willing to consider for Puerto 
Rico. If the Senate will agree to be bound by local status definitions 
we will go away and not come back until we have a majority for a 
locally defined status, but if not the Senate must act now.
    The amendments Congress made to the ``commonwealth'' constitution 
in 1952, imposed as a prerequisite for it to take effect, confirm that 
any amendments proposed by a local constitutional convention must 
address local matters arising under provisions of the local 
constitution itself, and must be consistent with federal law 
authorizing the adoption of the local constitution, subject to the 
residual sovereignty and territorial clause authority of Congress over 
Puerto Rico. This ensured local government adherence to the legal and 
political order under the federal constitution, pursuant to which U.S. 
national law is the supreme law of the land in Puerto Rico, as 
promulgated in Congress assembled.
    The historical and legal revisionism of the commonwealth party 
suggesting ``commonwealth'' is a constitutionally permanent status is 
based on opportunistic and tertiary ambiguities in the U.S. and U.N. 
proceedings through which ``commonwealth'' was instituted in 1952. The 
``commonwealth'' bilateral pact ideology is superficially beguiling, 
but ultimately just an idiosyncratic obsession of a colonial mindset 
among one faction in the local territorial political culture. The 
sociological notion that Puerto Rico acquired a power of consent over 
definition of its own status under federal law is unavailing in light 
of unambiguous federal territorial law and policy confirmed by 
subsequent Congressional measures, the prevailing effect of which has 
been to define ``commonwealth'' as territorial.
    The confusion created by local ``commonwealth'' political mythology 
promotes a Quebec-like political and cultural separatism under the 
American flag in the name of ``autonomy.'' That is why the Senate now 
must act to end its silence of 112 years, the period of American rule 
during which Congress never has afforded U.S. citizens in Puerto Rico 
the opportunity by direct vote to give consent of the governed to the 
current territorial status. Adoption of the local territorial 
constitution in 1952 was not a form of consent to the current status, 
because approval of limited home rule was the only option on the ballot 
at that time, rather than any actual political status.
    Nor has Congress ever enabled the residents of the territory to 
accept or reject non-territorial status options recognized by Congress. 
In this connection, past local status votes the residents of Puerto 
Rico did not reject statehood, as some falsely have claimed before and 
since H.R. 2499 was passed.
    Inclusion of a bogus ``commonwealth'' option on the ballot in local 
status votes conducted under Puerto Rico law in 1967 and 1993 stacked 
the deck against statehood, but statehood still gained 46.4% of the 
vote against the bogus ``commonwealth'' option in 1993. That bogus 
``commonwealth'' option in 1993 was based on principles of local 
nullification of federal law and a de facto confederacy created through 
``mutual consent'' gimmicks the U.S. Justice Department has termed 
``deceptive'' and ``illusory.''
    In 1998 statehood got the highest percentage of votes case on valid 
status options (46.5%), in a locally vote where ``commonwealth'' as 
defined by Congress in current territorial organic law garnered less 
than 1%. ``None of the Above'' received 50.2%, expressing the confusion 
and frustration of voters due to the discrepancies between definition 
of status options in the federal and local political and legal process.
    The current territorial status with a ``commonwealth'' structure of 
limited local self-government, subject to supremacy of federal law, 
does not confer equal rights or equal dignity on the U.S citizens of 
Puerto Rico. Consequently, its continuation cannot be justified or 
reconciled with American values, unless there is at the very minimum a 
mechanism recognized under federal law and policy for the residents of 
Puerto Rico periodically to give consent to continuation of the current 
less than fully democratic status of the territory.
    Additionally, some advisory self-determination mechanism must be 
available to inform the residents of Puerto Rico and Congress if there 
is a non-territorial and fully democratic representative status that a 
majority of the voters prefer, triggered any time the present status 
proves not to have the consent of a majority. Failure to provide these 
status resolution mechanisms represents a failure by Congress to 
perform its constitutionally prescribed duties with respect to 
administration and disposition of territories of the U.S. government.
    The debate surrounding House passage of H.R. 2499 reinforces that 
Congress will never return to the false doctrine that ``commonwealth'' 
can be converted into a new form of ``free associated state'' with 
attributes of a nation unto itself, with ``first allegiance'' to Puerto 
Rico, while retaining U.S. citizenship and eligibility for federal 
subsidization of ``commonwealth'' by U.S. taxpayers.
    However, the House debate also revealed the work that still needs 
to be done to end the high level of confusion and misdirection about 
how America--historically and constitutionally--resolves the status of 
populated territory under U.S. sovereignty, so that temporary 
territorial status can end in favor of sovereign self-government, 
within or outside the federal union.
House debate demands Senate clarification of territorial policies
    It was conspicuous to everyone in Puerto Rico paying any attention 
that the local ``commonwealth'' party lobbyists were creating high 
levels of confusion among House Republicans about English language 
policy under current status, as well as under statehood, as well as the 
fiscal implications of federal subsidization of the current 
``commonwealth'' regime, in contrast to Puerto Rico's ability to pay 
its own way in the union under statehood.
    Suffice to say that there is no horizon for unending increases in 
the current 15 billion annual federal subsidy of the ``commonwealth'' 
regime. In contrast, CBO projects Puerto Rico will be able to meet the 
test for contribution to the cost of government under the statehood 
model that has enabled every economically underperforming territory to 
pay its own way once it becomes a part of the national economy.
    We also need to remind Republicans in Congress that it was the 
``commonwealth'' party that ended equal time public instruction in 
English and ended English as an official language, and the statehood 
party that revered those attempts at cultural separatism. It was the 
same liberal Democrat controlled ``commonwealth'' party that retained 
Republican credentialed lobbyists to distort these issues and try to 
arouse seemingly anti-Hispanic sentiment in Republican ranks to confuse 
the House debate.
    If Puerto Rico is placed on the path to statehood based on results 
of an advisory status resolution process, the same English language 
policies applied to Louisiana, California and New Mexico will apply. 
There is no justification for discriminatory language policy that holds 
Puerto Rico to a higher standard than other mostly non-English 
territories that were admitted to the union.
    Ironically, it is under ``commonwealth'' that the Congress can 
arbitrarily and in a discriminatory way apply English language and 
federal fiscal policy to the territory without any protections that 
states have form under federal interventions.
    The attempt of liberal Democrats in the local ``commonwealth'' 
party to mobilize conservative pundits to confuse GOP members of the 
House on these issues was unsuccessful, but it was made, and that 
underscores the need for the Senate to act responsibly to clarify the 
real issues and define the real options.
Obama Administration must restore efficacy of White House Task Force
    The Republican Party of Puerto Rico is deeply disappointed that the 
Obama Administration did not sustain continuity of bipartisan policy 
and procedure in management of the activities of the President's Task 
Force on Puerto Rico. The coherence that was achieved between the first 
Bush Administration, the Clinton Administration and the second Bush 
Administration on the Puerto Rico status issue was a model of 
bipartisan commitment to do what was right for America.
    Indeed, the President's Task Force on Puerto Rico's Status was 
created by and Executive Order of President Clinton's, which defined 
its mission in a manner that both recognized the status policy of the 
Reagan and first Bush administrations. The Clinton policy was then in 
turn embraced by the second Bush Administration.
    In contrast, the Obama Administration has been aloof and diluted 
the mission of the task force. Its members visited Puerto Rico in March 
of this year and showed an obvious preference for discussing the Obama 
agenda over status. The Obama Administration clearly does not attach a 
high level of importance to the fact that status resolution is the 
paramount issue for the people of Puerto Rico, and for the U.S. in its 
governance of Puerto Rico. That is why there is a federal task force on 
the subject of Puerto Rico's status in the White House.
    Simply stated, no matter how it may be perceived in the short term, 
in reality all other federal and local political, legal, fiscal, 
commercial, economic, social, cultural, and government policy matters 
ultimately have less long term importance than status resolution. That 
may seem an overstatement, but it is true due to the reality that the 
current status creates a pervasive and corrosive ambiguity about our 
individual and collective rights and responsibilities, challenges and 
opportunities. This impairs our vision of the future, prevents informed 
self-determination, and obscures the true meaning of our identity as 
the body politic of Puerto Rico.
    Indeed, there are few federal or local interests or endeavors that 
do not suffer in a profound and sometimes crippling way from 
institutionalized ambiguities that are due directly to the lack of a 
permanent political status. In all matters of import and consequence, 
Puerto Rico will be better off and we will do better, once the path to 
a permanent future status of the island is known. Even if it takes 
years for the self-determination process to reach culmination, it is 
imperative now that there be a federally sponsored self-determination 
mechanism that makes orderly democratic status resolution possible.
    While the transition period for achieving a democratic status may 
be prolonged, real progress toward a known permanent status will end 
state of political limbo we have been in for a hundred years. Certainty 
will usher in a political, social and economic resurgence for Puerto 
Rico. This view is consistent with the position adopted by President 
Obama during the 2008 campaign, after he had been barraged by the most 
persuasive arguments of the most impassioned advocates on all sides of 
the status debate.
    Upon hearing from statehooders, commonwealth supporters, and the 
independence faction, he spoke plainly and yet resoundingly, saying on 
May 25, 2008, that Puerto Rico is `` . . . definitely a territory'' and 
one that is `` . . . trying to figure out'' if it wants to remain one. 
Then he said, ``And that's why it's so important for us to really pay 
attention to providing a mechanism for that final status to be 
determined . . . I'm committed to doing that . . . in my first term . . 
. setting up a procedure whereby the people of Puerto Rico can make 
this final decision.''
    For all Americans, regardless of political affiliation, the 
transcendental meaning of the election of President Obama in 2008 was 
that we as a nation, as a people, do not have to live forever with the 
mistakes of the past. We are not captives of the wrongs and injustices 
of the past. We uphold the same hope for Puerto Rico with respect to 
the mistakes, wrongs and injustice of our political status. Yet, we are 
mindful that:

   It was a mistake for Congress to confer U.S. citizenship in 
        1917, without explicitly committing to full and equal 
        citizenship through incorporation, extension of the federal 
        constitution by its own force, and eventual statehood.
   It was wrong for the U.S. Supreme Court to rule in the 1922 
        Balzac case that Congress could govern the U.S. citizens of 
        Puerto Rico outside the protection of the federal constitution, 
        in the same manner as non-citizen subjects in the Philippine 
        islands territory were governed under the unincorporated 
        territory doctrine invented by the court's 1901 ruling in the 
        Downes case.
   It was an injustice for Congress to misconstrue the Balzac 
        decision as license to govern the U.S. citizens of Puerto Rico 
        under discriminatory statutory policies that define a subclass 
        of citizenship with less than equal legal standing, and to do 
        so for an indefinite period without sponsoring a self-
        determination process to ensure that the principles of self-
        determination and government by consent were being respected in 
        governance of the territory.
The Road Ahead: H.R. 2499
    We do not have to live with those mistakes, wrongs and injustices 
any longer. A bipartisan record supporting a federally sponsored status 
process has been created in the Congress, as well as the 2005 and 2007 
reports of the Task Force. That record includes authoritative U.S. 
Department of Justice legal opinions from the Bush-Clinton-Bush years.
    The decades of confusion are over, the truth is clear. The whole 
world knows the ``improved commonwealth'' ideology is a subterfuge for 
perpetual federal subsidization of a failed political economic model. 
Politically, the idea that Puerto Rico can be a nation but remain under 
U.S. sovereignty, or become sovereign and keep U.S. citizenship without 
true allegiance, is the real hoax. The notion that real self-
determination on real options should be held in abeyance, while the 
elites of the territorial commonwealth seek to redefine U.S. federalism 
and create a new form of ``associated statehood,'' is nothing more than 
a grand deception.
    Treaty based free association between two separate sovereign 
nations is recognized under U.S. and international law, but the status 
of Puerto Rico under commonwealth, improved or not, is not and never 
will be recognized under U.S. or international law as free and mutual, 
or terminable at will. That would require separate sovereignty, it 
cannot be done within the domestic political status framework of the 
U.S. Constitution, without an amendment to create something other than 
a state or territory.
    So it is time to stop allowing arguments based on the fallacy of a 
discredited ideological doctrine to disrupt an informed process of 
self-determination. To prevent the local political gridlock in Puerto 
Rico from further impeding democratic status resolution, Congress 
should act now to confirm the status options embodied in H.R. 2499.
    H.R. 2499 did not disenfranchise commonwealth supporters. Rejection 
of status change by a majority in the first vote would have 
strengthened the commonwealth party's position in seeking the 
improvements to commonwealth it proposes. However, to placate 
``commonwealth'' supporters who were pretending to be excluded, the 
House added the current status to the second referendum under H.R. 
2499. That gives the Senate leeway to act in concert with House to 
define the actual options and recognize a local vote based on a 4 
option ballot.
    Those who want commonwealth do not have a right to prevent those 
who want change from voting based on their freely conceived aspirations 
for a new status. Self-determination is a right of individuals, not 
political parties. The right to self-determination cannot be divvied up 
or allocated based on ideological pedigree, much less how someone from 
one party think voters from other parties will vote.
    It is anti-democratic arrogance for commonwealth party leaders to 
demand that statehood and independence voters be denied the right 
democratically to express their common aspirations for a fully 
democratic status, even if the new and more democratic status they seek 
is not the same. Who appointed the commonwealth party to be the self-
determination police? Why are we even listening to these intellectually 
empty arguments? Who told them they had a preemptive right to a 
guaranteed first or second place finish?
    The commonwealth party claim that H.R. 2499 is rigged against 
commonwealth is actually a clever barely concealed demand for a process 
that prevents majority rule on whether to seek a new status, and gives 
commonwealth a manufactured plurality that preserves the status quo. In 
a robust democracy, all ideas are equal coming out of the gate, but 
some ideas cross the finish line last. Having post position when the 
competitive race starts does not ensure an idea or proposal will win, 
place or even show.
    Indefinite territorial status is not a normative status option. 
Real sovereign free association, independence and statehood are 
normative status options. After decades of indulging this anachronistic 
and regressive status doctrine, the record of its illegitimacy is 
incontrovertible. After all, the ``improved commonwealth'' autonomy 
proposal is an anachronistic and futile attempt to restore archaic 
features of autonomy granted under Spanish colonial rule. The idealized 
Spanish autonomy charter was non-binding and colonial, and the same is 
true of the current commonwealth regime that is falsely touted as 
sovereign autonomy. We cannot afford to indulge this pathetically 
nostalgic historical revisionism any longer.
    Commonwealth is territorial, always has been and always will be, 
unless it is converted to statehood, independence or real sovereign 
free association. Thus, the arguments being made against H.R. 2499 are 
nonsense, and only seem compelling to those who do not understand the 
record that has been created before Congress over the last two decades.
Protecting the Rights of Citizenship
    Continued inaction to restore democratic consent principles cannot 
be justified. This is the message we hoped the Obama Administration 
members of the White House Task Force would take back to Washington:

   Failure to act now to fix mistaken status policy for Puerto 
        Rico made decades ago would be yet another mistake of historic 
        proportions.
   It would be wrong to base federal policy on the grand 
        deception that commonwealth is normative and statehood or 
        sovereign nationhood are non-normative, a doctrine that 
        exploits rather than corrects the mistakes and wrongs of the 
        past.
   Above all, it would be an injustice if we fail to act now, 
        because gradualism may limit the solutions and options 
        available to the next generation.

    Instead the Obama Administration failed to support H.R. 2499, even 
though it complies with criteria in the 2005 and 2007 reports of the 
White House Task Force and the Clinton Administration Executive Order 
created the Task Force.
    This is disturbing, because delay is not a substitute for change 
that was needed. Failure to act may very well be prejudicial to the 
aspirations of the next generation to preserve their rights and even 
their status as American citizens. We have a duty of social 
responsibility to end the status dilemma and free our children to 
realize their own dreams as individuals and as a people.
    As long as Puerto Rico remains a commonwealth with the status of a 
territory ruled under the territorial clause power of Congress, the 
only source of the current U.S. citizenship for our children born in 
Puerto Rico is federal statutory law. This statutory citizenship 
enacted pursuant to the sovereign federal territorial power and the 
treaty of cession from Spain gives us a less than equal legal and 
political status. Only application of the 14th Amendment to Puerto Rico 
by its own force will secure for our descendants in perpetuity an 
automatic constitutionally defined U.S. citizenship right, conferral of 
which is beyond the reach of Congress. Those politicians and party 
ideologues who urge delay, gradualism and experimentation to 
``improve'' commonwealth do not seem to realize that the 14th Amendment 
was adopted to end the power of Congress to define citizenship by 
statute. Today, only those who do not acquire full constitutionally 
conferred U.S. citizenship under the 14th amendment still acquire it 
only by discretionary Congressional application of naturalization 
statutes that are subject to amendment and repeal.
    As never before we know that the world order changes, the national 
agenda changes, and the day may come when a decision is made by 
Congress to stop conferral of territorial American citizenship that 
only creates a new and expanding disenfranchised class of U.S. citizens 
in the territories. Those who are telling us to wait until the local 
economy improves to make a decision about status cannot guaranty that 
our grandchildren will acquire even the limited territorial 
classification of U.S. citizenship conferred on our generation.
    Commonwealth as a territorial status does not guaranty anything at 
all. American nationality is the only nationality we have, but 
commonwealth does not even guaranty in our homeland, within the only 
nation we have, an equal legal status under federal law, much less 
equal political and civil rights.
    We are second-class territorial citizens in the nation that 
exercises supreme and pre-emptive sovereignty over our homeland and our 
people. We do not have national sovereignty like a real country or a 
legitimate free associated state, and we do not have democratic 
sovereignty as a people under the U.S. system of constitutional 
federalism.
Real Choices
    We challenge the defenders of commonwealth to justify delay and 
gradualism, instead of federal sponsorship of a self-determination 
process based on real options, when our people are not sovereign in our 
homeland after nearly a century of U.S. nationality. Statehood, 
independence and real free association based on separate national 
sovereignty are the only options that reconcile our human rights with 
our status as citizens subject to the sovereign power of the U.S. to 
govern our lands and our people. Based on the record now there for the 
whole world to see, the whole world knows that the status of Puerto 
Rico will not be resolved unless the federal government sponsors a 
self-determination process in Puerto Rico, based on options that are 
defined by federal law.
    Since federal law is supreme in Puerto Rico, and any status 
solution must be mutually agreed and approved by Congress, self-
determination informed by governing law and status resolution itself is 
legally impossible without federal facilitation. Thus, to oppose a 
federally sponsored status resolution process is to oppose status 
resolution for Puerto Rico.
    Decades of federal governing measures reflecting ambivalence in 
Congressional intentions as to status resolution have institutionalized 
the contradictions and confusion in federal law and policy applicable 
to Puerto Rico. In turn, this ambiguity in federal doctrine has been 
mirrored in locally concocted status doctrines that exploit the long-
term confusion for short-term political gain.
    The inconclusive results of all locally conducted status votes 
reflect the confusing and fallacies of non-normative status doctrines 
promoted by local political party leaders in the absence sound and 
unequivocal federal policy. Congress and the Executive Branch must 
actively and affirmatively provide for self-determination that meets 
the democratic standards America has set for the rest of the world and 
in its own domestic and international practices, with respect to 
decolonization of dependent territories in the modern era. The U.S. has 
been a leader among nations on self-determination for dependent foreign 
client states and neo-colonial possessions.
    At the very least Congress should be as favorably disposed to self-
determination for Puerto Rico as it was for foreign peoples and 
territories during the U.N. decolonization process. Affirmative federal 
measures to make resolution of Puerto Rico's status possible also 
should conform to U.S. practices respecting status resolution for its 
own former possessions, including the Philippines, Alaska, Hawaii, the 
Canal Zone and the U.S. administered U.N. Trust Territory of the 
Pacific Islands.
    In this regard, the argument by commonwealth leaders against the 
two tiered balloting process contemplated by H.R. 2499 was utterly 
without merit. In fact, a tiered options balloting process comparable 
to that anticipated under H.R. 2499 was employed by the U.S. with U.N. 
oversight in the difficult but ultimately successful process for 
approval of free association between the U.S. and the sovereign 
Republic of Palau. The U.S. Congress confirmed the legitimacy of the 
balloting process in Palau, and in 1986 ratified the compact of free 
association with that former U.S. administered U.N. trust territory in 
1985.
    Multi-stage periodic votes were also enacted by Congress in the 
status resolution process for the territories that became the states of 
North Dakota, South Dakota and Washington. So the polemical accusation 
that the original H.R. 2499 was some kind of scheme to force a majority 
for statehood is based on historic ignorance. The House changed it so 
we are moving forward with the bill as amended, but it remains true 
that the original bill was the best way to enable a majority vote not 
encumbered and impeded by false options that prevented majority rule in 
the past.
    Given the record of U.S. support for self-determination by the 
people of former U.S. and foreign territories, the failure of Congress 
to act on status in the case of Puerto Rico over the last few decades 
is legally, historically and constitutionally non-normative and 
unprecedented. It is a glaring abdication of constitutional 
responsibility by Congress, and history will recognize it as such.
    H.R. 2499 as passed but the House now gives the means for Congress 
to restore the principle of government by consent of the governed. It 
also will restore federal territorial law and policy to a democratic 
standard consistent with both modern precepts of self-determination and 
the anti-colonial principles of the Northwest Ordinance.
The Moral Imperative
    The U.S. is fighting two wars for the right of citizens in Iraq and 
Afghanistan to a national government that is democratic. Yet, for 110 
years Puerto Rico has been a U.S. territory with no right to democratic 
national government. Men and women from Puerto Rico are serving in the 
military at a rate higher than 49 states. Some are dying on foreign 
soil to defend rights they never had on American soil in Puerto Rico.
    So, respectfully, our message is simple, urgent and emphatic: The 
best way for President Obama to keep his promise for a federally 
recognized self-determination process is to support passage of H.R. 
2499 by Congress, or at least support action by Congress now to act to 
define the available status options.
    Our work to improve the local economy is no excuse to delay self-
determination. Progress on status is the best way to sustain recovery 
and create jobs long term. H.R. 2499 is based on a strong historical 
record of federal deliberations. It does not disenfranchise 
commonwealth supporters. Those who want to keep and try to improve 
commonwealth will be free to vote to preserve commonwealth.
    Statehood and independence voters cannot be denied the right to 
vote for change to a new status, even if their aspirations for an 
ultimate status differ. The commonwealth party cannot demand a ballot 
option for a status that does not exist. Commonwealth is and always 
will be territorial. Statehood, independence or real sovereign free 
association are the only non-territorial options. H.R. 2499 is the best 
way for Congress to restore the principle of government by consent now, 
even if it takes many years to fully resolve the status issue.
                                 ______
                                 
         Statement of Alejandro J. Garcia-Padilla, on H.R. 2499
    I appreciate the opportunity that the Committee has given me to 
address the very important issues raised by H.R. 2499 regarding the 
constitutional relationship between Puerto Rico and the United States. 
For the reasons herein stated, I urge you to oppose the bill.

          1. The true nature of H.R. 2499.--H.R. 2499 does not lead to 
        the exercise of the rights to self-determination of the people 
        of Puerto Rico. Much to the contrary, H.R. 2499 is a hoax to 
        such rights. H.R. 2499 is nothing but a disguised statehood 
        bill. I explain why:
          2. Statehood.--Puerto Ricans have never favored statehood for 
        Puerto Rico. Several plebiscites have been held in the Island 
        since 1967 and statehood has never prevailed. The most telling 
        case was the plebiscite of 1998: The political party then in 
        power in the Island produced by itself--without taking into 
        account the views of the other parties--the alternatives to be 
        brought to a vote. Since the party in power favored statehood 
        for Puerto Rico, the definitions were charged in favor of that 
        alternative. But the electorate proved wiser, and the vote went 
        for `` none of the above.''
          3. The intended involvement of Congress.--H.R. 2499 is a move 
        to seek the involvement of Congress in this new maneuvering to 
        produce a vote for statehood. H.R. 2499 sets forth a two-round 
        plebiscite process. The first round leads to a consolidation of 
        the supporters of statehood and independence--historically the 
        second and third choices of preference in Puerto Rico--to gang 
        against the historically preferred commonwealth option. In the 
        second round, H.R. 2499 intends to confuse commonwealth 
        supporters by, first, interjecting poorly defined alternatives 
        that evoke complex legal issues regarding the powers of 
        Congress to enter into political compacts with the people of 
        Puerto Rico, under the specific provisions of the Constitution 
        or under the pre constitutional powers enjoyed by Congress as 
        ``necessary concomitants of nationality;'' and, second, 
        negating the intrinsic capacity of commonwealth to evolve and 
        reshape to provide better solutions to needs of both the 
        peoples of Puerto Rico and the United States.
          4. The commitment of Congress.--H.R. 2499 does not articulate 
        the nature of the commitment made by Congress regarding the 
        implementation of the outcome of the plebiscite. If the 
        statehood supporters have not cared to define such 
        congressional commitment, then why have they come before 
        Congress with this vague proposal? The answer seems clear: H.R. 
        2499 pretends to convey to the people of Puerto Rico the wrong 
        message that the Congress of 3 the United States is committed 
        and ready to grant statehood to Puerto Rico if statehood takes 
        the majority of the vote in the proposed plebiscite. Is 
        Congress ready to assume that responsibility--legal or moral--
        under the terms of H.R.2499? Are we all fully aware, for 
        instance, of the cost of statehood for Puerto Rico and for 
        Congress, are we aware, likewise, of the cultural issues at 
        stake?
          5. An exercise of statesmanship.--After a century of shared 
        history, the peoples of Puerto Rico and the United States 
        deserve better. Addressing the Puerto Rico status question is 
        not a matter that should be left to political maneuverings like 
        that present in H.R. 2499. It calls, instead, for the exercise 
        of serious statesmanship: the options to be presented to the 
        electorate must respond to the real preferences of the people 
        of Puerto Rico, the alternatives must be precisely defined, the 
        commitment of Congress must be clear. I urge you to engage with 
        all three political forces in the Puerto Rico in a process of 
        such dignity.
    In the meantime, I urge you to oppose H.R.2499.
                                 ______
                                 
 Statement of Luis Raul Torres-Cruz, Carlos Hernandez-Lopez, Luis Vega-
Ramos and Carmen Yulin Cruz-Soto, Puerto Rico House of Representatives, 
                              on H.R. 2499
    The undersigned are elected members of the Puerto Rico House of 
Representatives. As such, we wish to express today to this Honorable 
Committee that H.R. 2499, the so-called Puerto Rico Democracy Act of 
2010, as approved by the U.S. House of Representatives, constitutes a 
flawed vehicle that will not only fail to allow Puerto Rico to properly 
exercise its right of self-determination, but will also, in a most 
undemocratic way, skew the process in favor of a victory for a 
Statehood option. We also wish to express our understanding that a much 
better way for Congress to support a democratic exercise of the right 
of self-determination would be by supporting the convening of a 
Constitutional Assembly in Puerto Rico, and establishing a formal 
process of negotiation with the People of Puerto Rico to implement the 
results of said Constitutional Assembly.
    We believe that a valid process of self-determination for Puerto 
Rico must comply with applicable U.N. Decolonization Committee 
resolutions, which are based on recognized international law 
principles. As such, it is essential that any valid process originates 
from Puerto Rico, not from the United States, and that it engages the 
Congress and the Administration in an effective response mechanism to 
the expressed will of the people.
    H.R. 2499 would federalize our electoral process, which under US 
Supreme Court decisions is unconstitutional, as it is also contrary to 
the very nature of self-determination according to International Law. 
In addition, H.R. 2499 would create a two-vote process in which the 
first vote would be an unnecessary waste of valuable resources. Under 
the first vote, the people of Puerto Rico would be asked to choose 
between undefined change and the current state of relations between 
Puerto Rico and the United States. It should be noted that no one in 
Puerto Rico, not even our own Popular Democratic Party (``PDP''), which 
is the historical defender of the Commonwealth status, advocates for a 
continuation of Commonwealth as we know it today. In fact, in 1998, 
given the choice of supporting today's territorial Commonwealth in a 
status referendum, the PDP chose instead to support the ``None of the 
Above'' alternative. Subsequently, the PDP has repeatedly stated its 
support for changes to the current Commonwealth arrangement. Thus, the 
first vote included in H.R. 2499 is unnecessary, a waste of valuable 
and scarce resources, and offensive to the idea of a proper self-
determination procedure.
    The second vote to be held under the terms of H.R. 2499 is equally 
problematic. As originally drafted, the second vote did not contain an 
alternative that would adjust to the expressed aspirations of the more 
than 800,000 supporters of the PDP, one of the two main political 
parties in Puerto Rico. Not having an alternative to support, PDP 
voters would be left disenfranchised and without any motivation to 
participate in the process. These would result in an artificial victory 
for the Statehood option, generally the ``runner up'' in Puerto Rico's 
political preferences. The addition of a ``status quo'' amendment in 
the House of Representatives did not in any way cure that fatal flaw. 
Now, instead of having three alternatives that do not adjust to the 
expressed wishes of the members of the PDP, H.R. 2499 contains four 
alternatives that do not so adjust. The only way to avoid the 
disenfranchisement of PDP supporters would be to define an alternative 
in a way that adjusts to the text of the PDP platform, which reads as 
follows:

          Sovereignty means that a nation's ultimate power over its 
        affairs resides with its people, its countrymen. The 
        undertaking of the issue of Puerto Rico's political status 
        should begin with the recognition that sovereignty rests with 
        the people of Puerto Rico. The concept of ``Estado Libre 
        Asociado Soberano'' (Sovereign Commonwealth or Free Associated 
        State) seeks that Puerto Rico and the government of the United 
        States agrees to specific terms that define the relationship 
        between them, with U.S. citizenship as a bonding element of the 
        political association. That effort will establish the extent of 
        the jurisdictional powers that the People of Puerto Rico 
        authorize to have in the hands of the United States.

    Without an option that adjusts to the above-cited language, H.R. 
2499 would leave the members of the PDP without a choice on the second 
vote, undemocratically creating an artificial victory for an 
alternative (Statehood) that has never had the support of the majority 
of Puerto Ricans.
    We also concur with those, like the Congressional Research Service 
(CRS), who express concern as to the confusing nature of the so-called 
``sovereignty in association'' option. When a serious process of self-
determination is entertained by this Senate, the middle ground option 
between Statehood and Independence should be clearly outside the 
Territorial Clause and as close as possible to the previous models of 
association already adopted by the United States with three Pacific 
nations. In that sense, H.R. 2499 fails to properly consider the 
alternative of Free Association as suggested by Chairman Bingaman to 
the Puerto Rican media on November of 2006.
    Instead of the flawed process suggested in H.R. 2499, we propose 
that a special Constitutional Assembly for self-determination be 
convened by the People of Puerto Rico, in accordance to our laws, 
institutions and our inalienable rights. This special Constitutional 
Assembly shall be the vehicle of expression which allows the 
articulation of non-territorial alternatives, based on the sovereignty 
of the People of Puerto Rico and not bound by the straitjacket of the 
territorial clause and its plenary powers. This proposal is consistent 
with the PDP platform; in fact, we have filed a Bill in the Puerto Rico 
House of Representatives, drafted by a multi-party special committee of 
the Puerto Rico Bar Association (that would provide for the convening 
and operation of such a Constitutional Assembly). Instead of wasting 
time and resources with flawed processes as H.R. 2499, Congress could 
also enact legislation that acknowledges the inalienable right of 
Puerto Rico to convene such a convention and that establishes a formal 
process to negotiate in accordance to what the People of Puerto Rico 
express as a result of that Constitutional Assembly\1\.
---------------------------------------------------------------------------
    \1\ This proposal was included in H.R. 1230, a bill introduced in 
the previous Congress by Representative Gutierrez of Illinois and 
Representative Velazquez of New York.
---------------------------------------------------------------------------
    Finally, we denounce the effects of an English language amendment 
included in the approved version of H.R. 2499. Said amendment mandates 
our Election's Commission to instruct voters that if Puerto Rico 
retains its current commonwealth status, ``it is the sense of Congress 
that the teaching of English to be promoted in Puerto Rico as the 
language of opportunity and empowerment in the United States in order 
to enable students in public schools to achieve English language 
proficiency''. Said amendment is another attack on the culture and 
distinct identity of Puerto Rico, and by itself is enough reason to 
defeat H.R. 2499.
    We urge you to defeat H.R. 2499 for the various reasons that have 
been explained on this written statement. Furthermore, we urge you to 
work with the people of Puerto to truly fashion a self-determination 
process that respects our natural right to determine our ultimate 
political status.
                                 ______
                                 
        Gregorio Igartua, Attorney, Aguadilla, PR, on H.R. 2499
    I am an American citizen resident of Puerto Rico, and have been 
pursuing the right to vote in Presidential Elections for the American 
citizens of Puerto Rico since 1991. On Wednesday, June 24, 2009, your 
Committee will be holding a public hearing regarding Puerto Rico's 
status issue. I find it pertinent to bring to your attention, and that 
of the other Members of the Committee, the following observations in 
opposition to the proposed legislation:

          1) Gradual Congressional Incorporation of Puerto Rico to the 
        United States ``as a State'' Since 1898.

    Puerto Rico has met all of the requirements to become the 51st 
State of the United States. Since 1898, when Puerto Rico was acquired 
by the U.S. by the Treaty of Paris, as a result of the Spanish American 
War, Congress has gradually incorporated Puerto Rico to be ``like a 
state''. The native residents of Puerto Rico are American citizens by 
birth, vote for their governor, and adopted by direct vote a 
constitution in 1952, one that was approved by Congress, to rule their 
internal affairs, just like American citizens do in the fifty states. 
(See, US. Const. Art IV, Section 4). The Executive Branch operates 
fully in Puerto Rico. All U.S. Federal laws have been applicable in 
Puerto Rico since May of 1900. (See Foraker Law and Public Law 600). 
All income from sources outside of Puerto Rico is subject to Federal 
taxation. (See US. Tax Code). In addition, all employers and employees 
in Puerto Rico pay Social Security (F.I.C.A.) and Medicare taxes. The 
net result is that Puerto Rico is now contributing over five billion 
dollars annually to the U.S. Treasury, more than residents of some 
states do. (Verify with IRS Annual Income Report). Puerto Rico is so 
incorporated as ``a state'' to the Nation that the Judicial Branch 
operates fully in Puerto Rico as in the States. (Puerto Rico is subject 
to the jurisdiction of the Federal District Court, First Circuit Court 
of Appeals, and the United States Supreme Court.) As a result, the 
American citizens residents of Puerto Rico have a federalist 
personality, one associated with the Nation and one associated with 
Puerto Rico, just like the American citizens in the states have. All of 
these policies constitute acquired rights and obligations within the 
American constitutional legal framework. Thus, Puerto Rico is ready for 
an Enabling Act from Congress granting it the statehood franchise, so 
that, in justice and after more than one hundred years, its four 
million American citizens can send two senators and six congresspersons 
to Congress, and vote in Presidential Elections. Taking into account 
the spirit of the U.S. Constitution, and the democratic rights that our 
Nation so arduously defends, domestically and abroad, this statehood 
step is long overdue for Puerto Rico.
    What is a clear and simple solution of the status question that is 
for Puerto Rico to become a state is hindered by contradictions-
ignorance, bad faith, discrimination or a combination of these on the 
part of local and national politicians debating the status question. 
Particularly consider the following:

          A. Some politicians are still confined to the dilemma of 
        whether Puerto Rico is an incorporated or non incorporated 
        territory of the United States, a judicial classification that 
        originated in the so called Insular Cases of 1901. These ignore 
        that Congress has incorporated Puerto Rico to be like a state 
        gradually over the years, as previously exposed. We were made 
        part of the American family when we were granted American 
        citizenship in 1917. (`` . . . The distinction between 
        incorporated and unincorporated territory is no longer 
        significant . . . [after] the conferral of citizenship on 
        persons born in Puerto Rico ( 1917, amended, 1939 and 1940)''. 
        3 Gordon and Rosenfeld, Immigration Law and Procedure 12 (1980 
        rev), Restatement of the Law, Vol. 1, Section 212 at 121). Even 
        the Federal Courts have judicially incorporated Puerto Rico to 
        the United States by applying US constitutional provisions in 
        their opinions, as if it is ``a state.'' (See eg: Mora V 
        Mejias, 11SF Supp 610, Trailer Marine Transport v Rivera 
        Vazquez, 977F 2d1, Calero--Toledo v Pearson Yacht Leasing Co, 
        416 US 663; Terry Tend Torres v Commonwealth of PR 442 US 46S). 
        Moreover, the U.S. Supreme Court established Puerto Rico is an 
        incorporated territory, Boumedine v. U.S. (US Sup Ct, June 
        2008).
          B. The leaders of the Popular Democratic Party have insisted 
        for sixty years in promoting as legally viable a political 
        relation whereby Puerto Rico is a territory of the United 
        States with the privileges of internal free disposition of U.S. 
        constitutional areas as those exposed in U.S. Constitution Art 
        I, Section 8, which are exclusively delegated to Congress, and 
        which would, if allowed, constitute unequal treatment between 
        the American citizens residents in the states and those 
        residing in Puerto Rico. That is, making Amendments VI and 
        XIV's, equal protection clause inoperative. This proposal 
        pretends to revive in our Nation a confederate relation between 
        Puerto Rico and the National Government, a type of relation 
        that ended when the U.S. Constitution was ratified in 1789, and 
        which was reaffirmed by the outcome of the Civil War. Worst, 
        they are still searching for a status definition which mixes 
        American Citizenship with constitutional privileges not 
        acceptable to Congress because these do not fit into the 
        American constitutional framework.
          C. If you evaluate different reports concerning the political 
        status of Puerto Rico from both Congressional and Executive 
        sources, including those by the White House, as well as the 
        opinions espoused by national and local politicians, you will 
        find them to be generally contradictory and confusing. Policies 
        are still adopted on the wrong premise that we do not pay 
        Federal taxes. Last year two congressmen opposed full voting 
        rights in the House to Hon. Luis Fortuno, then Puerto Rico 
        Resident Commissioner, on this wrong basis. (Ignoring US Const 
        Amend XXIV prohibiting the imposition of tax requirements as a 
        precondition to voting.) This may be due to ignorance of the 
        development of the legal relationship between Puerto Rico and 
        the United States and our present legal status as an 
        incorporated territory of the U.S.
          D. Consider Congressman Luis Gutierrez and Congresswoman 
        Nydia Velazquez, both from Puerto Rico, with residence in 
        states, enjoying full citizenship rights, and opposing 
        statehood for their fellow American residents of Puerto Rico. 
        This political contradiction provokes confusion in Congress.
          E. The political confusion created by a proposal by some in 
        the Popular Party of an associated republic, and the proposal 
        by others of a Republic for Puerto Rico, where both mean 
        independence from the United States, and included in the 
        proposed law. How can Congress include an independence states 
        to the American Citizens of Puerto Rico who have rejected it in 
        the last fifty years? What independence, with what: government 
        organization, emigration laws, coin, labor laws, etc.) On the 
        other hand, Puerto Rico needs to be a Republic in order to 
        freely negotiate an association with the United States or any 
        other Republic. Therefore the proposed associated republic 
        alternative is not legal. The proposed law offers a double 
        blank check to an independence alternative to a minority which 
        has not received more than three percent of the electoral vote 
        in the past two elections.
          F. Many politicians ignore the fact that the territory of 
        Puerto Rico is fully incorporated to qualify as a state, 
        including with population requirements, contrary to the legal 
        status of other territories. The other territories are still 
        ruled by the United States under an Organic Act, and their 
        population does not meet the minimum required population to 
        elect one Representative to Congress, or one elector to vote in 
        Presidential elections.

          2) Legal Considerations Opposing HR 2499

    The December 2005 Report by the President's Task Force on Puerto 
Rico's Status proposed as a solution to the status issue a Federally 
sponsored plebiscite. One of the alternatives offered to the voters 
would ask them to keep Puerto Rico as a territory, thus freezing the 
incorporation process. Has your Committee consider the implications of 
such proposal, of a political status of keeping the status quo of 
American citizens residents of a territory within the U.S. 
constitutional legal framework, such as: How would Congress establish 
guidelines to determine the applicability of federal laws to Puerto 
Rico; or, for the Courts to determine the extent and degree to which 
our rights under the U.S. Constitution would be advanced, or withhold; 
or, how will the Executive Branch operate in Puerto Rico, in a 
territory where the applicability of laws, or advancement of legal 
rights has been frozen? What is the constitutional provision which 
allows such a discriminatory practice? There is no other similar 
discriminatory policy that has been proposed to be applicable to 
American Citizens residents of a territory in the history of our 
Nation, nor to afroamerican American Citizens with respect to their 
voting rights.
    As the White House Report proposed this law also proposes a 
political solution for the status of Puerto Rico that is not legally 
viable, that is, a two tier referendum where the American citizens of 
Puerto Rico would first decide on whether to stay as a territory of the 
United States, and depending on the outcome of the first referendum, to 
participate in a subsequent referendum to vote for either statehood or 
independence, or an associated republic. This proposal promotes more 
confusion on the status issue. Any attorney should be able to explain 
to the Committee, as the U.S. Attorney General should, that you cannot 
ask American citizens by birth to vote for an option that will continue 
to subject them to government without consent. It is legally and 
morally incomprehensible to promote a system based upon the proposition 
that taxation without representation is a valid option for American 
citizens, even when it expressly contravenes the very text of Amend 
XXIV. In Puerto Rico's case to continue to be deprived of Congressional 
representation and the right to vote in Presidential Elections while 
being federally taxed for over 5 billion dollars annually.
    Consider how contradictory it would have been for African Americans 
in the U.S. to claim their rights in a fashion similar to the proposed 
plebiscite during the U.S. Civil Rights Movement of the 1950's and 
1960's. Imagine that a federally sponsored plebiscite had been held in 
the states of Alabama and Mississippi in 1956 and that the African 
American residents of those states would have been asked to vote 
``yes'' or ``no'' to the following questions: Would you like to vote in 
local, state and Federal elections? Only a small minority of African 
Americans in those two states were allowed to vote freely in1956. It 
was not until the passage of the Voting Rights Act in the 1960's that 
they could vote in significant numbers. Up until then African Americans 
in those and other states had government without the consent of the 
governed. Another question would have been:
    Would you like to continue living in segregated communities with 
separate public facilities such as restaurants and rest rooms? 
Segregation ended with the passage of the Civil Rights Act. Finally, 
would you like to continue sending your children to inferior segregated 
schools? The U.S. Supreme Court decision Brown vs. Board of Education 
of 1954 ended segregation in schools, however, it required the 
intervention of Federal troops to implement that decision.
    It is evident that such a plebiscite would be absurd, illegal, 
discriminatory, against the national democratic principles, and would 
only lead to more confusion. The adoption by Congress of the proposed 
referendum for Puerto Rico would be the equivalent of 
institutionalizing the case of Plessy v. Ferguson, 163 US 537, to the 
four million American citizens of Puerto Rico, or similarly the Insular 
cases. Such is the one proposed for the four million Americans who live 
in Puerto Rico, and the one endorsed by some pro statehood and pro 
independence leaders, and considered by your Committee.
    Even under international treaties, particularly those to which the 
United States is signatory, and under international customary law, the 
proposal is not only legally unviable, but rather disrespectful to the 
four million American citizens residents of Puerto Rico, which have 
contributed so much to the Nation, inclusively in armed conflicts to 
ironically defend the democratic rights (government by consent) of 
citizens of other countries (Iraq and Afghanistan--More than 60 
American citizens from Puerto Rico have died already in these 
conflicts.) That is, defending our flag under the embarrassing 
condition of being denied those same democratic rights. (See Igartua v. 
US. III, 407 F3d 30, Judge Torruellas and Judge Howard dissenting).
    I wonder, why so many people seem to be confused with the political 
status of Puerto Rico? I also wonder whether some politicians consider 
whether the American citizens of Puerto Rico have dignity at all? We 
are the first American citizens residents of a U.S. territory whose 
acquired federal civil rights are still being considered for a 
possibility of a move in a direction towards independence rather than 
towards statehood. Only 3% of the voters hare favor independence in the 
last 50 years. To the contrary, both the Pro-Statehood Party leaders 
and the Popular Democratic Party leaders institutionallyparticipate 
actively in National Politics. Ex Governor Rafael Hernandez Colon and 
the leaders of his Popular Democratic Party have strongly expressed 
their position against renouncing American citizenship. (See 
transcripts of previous status hearing before the Committee). What 
moral, legal, or logical justification does Congress has to even 
contemplate the possibility of taking away our federal acquired rights, 
our American citizenship from four million Americans also who are now 
fourth, fifth, and sixth generation American citizens. Furthermore 
taking into consideration the following:

          1. Hundreds of thousands have served in the Armed Forces of 
        the U.S., many of whom have died in combat.
          2. There is a constant flux of people to and from the 
        mainland to Puerto Rico for the purpose of education, 
        employment, business and leisure.
          3. That independence would place an undue burden on the 
        residents of Puerto Rico (4 million American citizens), and 
        their relatives in the 50 states alike (4 million American 
        Citizens).
          4. That there is no precedent in the history of the United 
        States to revoke or rescind American citizenship to American 
        Citizens against their will.
          5. The political relation of Puerto Rico to the United States 
        where the U.S. Constitution has been made applicable in several 
        judicial decisions, including by the U.S. Supreme Court.

    Notwithstanding everybody wants to propose solutions randomly. Some 
Senators have even proposed a constitutional assembly, showing total 
disregard for the one held in 1952, when we adopted a constitution to 
govern our internal affairs, with a republican form of government like 
in states, and where we expressed our loyalty to the U.S. Constitution. 
(PR Constitution Preamble) This would be very convenient for the 
independence Party, as similarly proposed by their leader Ruben Berrios 
Martinez. Its a chance to turn back all the Federal incorporation 
process. Most probably many of these proposals are made out of 
ignorance of Puerto Rico's legal relationship as an incorporated 
territory of the United States, from where four million other former 
residents have moved to the fifty states. How can Congress ever 
consider legislation for a constitutional assembly that will affect the 
acquired federal rights of four million American citizens without a 
specific agenda, or with the expectation that one that it will the 
adopted at a later stage at the unilateral will of a few. Is this the 
normal legislation procedure in Congress? To determine where we are 
legally under the U.S. Constitution, and where we should go, is not 
such a complicated endeavor. In this regard, I would respectfully 
propose to this Honorable Committee to match the requirements imposed 
to other territories in order to become a state. After such analysis, 
your Committee would find that Puerto Rico has complied with all the 
requirements to become a state as originally established in the 
Northwestern Ordinance of] 789.
    I invite you and the other Members of the Committee to evaluate 
first all of the legal documents and judicial opinions in the cases of 
Igartua v. 1LS, I, II, and III, litigated in the Federal Courts and 
related to our right to vote in Presidential Elections. The U.S. 
Department of Justice can provide you with the whole record. In any 
case, I am at your disposition to provide these or any documents you 
deem pertinent. (Igartua v Us, 404 F3 dl; 407 F3 d30; 229FS3 d80).
    Chairman Rahall and the Honorable Committee, I urge you to analyze 
the relationship of Puerto Rico with the United States within its 
proper legal context. The Puerto Rico status issue is not like a blank 
canvas where anyone can paint a custom made solution. Our relationship 
has been developing since 1898 legally, socially, politically and 
economically, and it is imperative that this process be taken into 
account. The American Citizens residents of Puerto Rico have helped 
built the Nation. Your Committee can contribute to our human rights and 
make history by promoting a process that fully recognizes our legally 
acquired rights as American citizens by birth and provide us with all 
the benefits conferred by statehood. It is Congress obligation to treat 
this issue within the context of the presently applicable legal 
dispositions, that is, within a civil and human rights perspective, and 
not within a purely territorial perspective more fitting for the latter 
part of the 19th century.
    Congress should work to complete the incorporation process by 
adopting an Enabling Act for Puerto Rico. A Federally sponsored 
plebiscite for Americans citizens to consent to government without 
consent of the governed as an option would be asking us to choose a 
status of political servitude, an illegal and unjust option to offer to 
an American citizen. It would also show that the Committee does not 
understand where we stand legally. Work for us considering what we 
really are, four million American citizens who moved residence to the 
States, and four million American Citizens of fifth and fourth 
generation residing in Puerto Rico, U.S.A.
    I am sure that both Honorable Governor Luis Fortuno, and Honorable 
Resident Commissioner Pedro Pierlussi, and other statehood leaders, 
have a genuine and honest interest in pursuing statehood for Puerto 
Rico. I very respectfully oppose the alternative of HR 2499-for the 
reasons set forth above.
    I respectfully request that this communication be made part of the 
official record of the Committee Hearing on Puerto Rico.
                                 ______
                                 
           Statment of Michael A. Monagle, Christiansted, VI
    Dear Committee Members and Delegate Christensen:
    Let me begin by saying that I support the creation of a Virgin 
Islands Constitution. I even testified at a meeting of the committee on 
the legislature to express my opinion on how our senate should be 
formed. Let me go a step further by saying that I respect many 
individual delegates to the Constitutional Convention and admire their 
hard work in helping to create such a document. Unfortunately there 
were some members of the Convention who had an agenda that will 
guarantee the failure, once again, of this worthwhile endeavor. I am 
speaking specifically of the creation of classes of citizenship with 
the attendant special privileges that such distinctions entail. The 
delegates have put forward a document that will divide us into three 
classes-Native Virgin Islander, Virgin Islander and Virgin Islands 
Citizen. Already formed in the proposed Constitution are ideas such as 
special tax privileges for Native Virgin Islanders and the premise that 
our Virgin Islands Governor and Lieutenant Governor must be Native 
Virgin Islanders. If the proposed Constitution is allowed to pass we 
can expect more such enactments in our future, further degrading our 
constitutional rights.
    In the previous hearing before members of the House you had Gerard 
Emmanuel, Adelbert Bryan and Gerard Luz James testifying, three men who 
have been in the forefront of enacting the above mentioned sections of 
the Constitution. Let me speak of the thoughts of the two who will not 
be there today. First Mr. Emmanuel stated that we should restrict the 
two elected executive offices to Native Virgin Islanders even if it 
means bucking Congress. He stated ``The top office is something we 
should have for our own. If people fight against that I don't think 
they love the Virgin Islands.'' Mr. Bryan stated about the offending 
sections ``Why we here wondering about what little handful of white 
people not going to like it.'' (sic) Mr. James is now appearing in 
front of your committee so please ask Mr. James if he agrees with those 
quotes. Who does he and Mr. Emmanuel define as ``our own''? Is he 
excluding many of our Arab citizens and many of our Hispanic citizens 
and all of our Down Island citizens and almost all of our Caucasian 
citizens? Are they not his own? Does he share the views of Mr. Bryan 
about a ``little handful of white people''?
    As you are aware, we live in a global world where people do not 
stay within fifteen feet of where they were born. Such insular thinking 
is not applicable to the way we all live today. In referencing the 
section on our executive officers, if you look at the fifty five 
governors under the U.S. flag, 24 were not born in the state or 
territory where they govern, in fact three were born in foreign 
countries. That is a total of 43%. This is a fact of life, people move 
and denying them their rights and privileges because of that is 
unconstitutional. Would Mr. James like to see reciprocal ceding of 
rights for Native Virgin Islanders who moved to New Jersey or Oklahoma? 
Should they have extra taxes levied against them in those states 
because of these clauses? Shouldn't we include a clause in our 
Constitution that would permit the citizens not allowed to run for 
office to pay no taxes at all as they are not getting the rights and 
privileges guaranteed to others?
    What the proposed Constitution codifies on our islands is the 
beginning of Apartheid, a government mandated way of life with 
different rights for different classes of citizens. Apartheid in 
Afrikaans means separateness or apartness. I don't believe that is what 
we should be creating in our Constitution. At present you have several 
options in regards to the document before you. I ask that you carefully 
consider them and please do not allow this to become the law of the 
land on our islands.
    Thank you for allowing me to contribute my thoughts to your debate 
on the issue at hand.
                                 ______
                                 
  Statement of Mauro E. Mujica, Chairman of the Board, U.S. English, 
                           Inc., on H.R. 2499
    Chairman Bingaman and members of the Committee,
    My name is Mauro E. Mujica, and I am Chairman of the Board of U.S. 
English, Inc.
    U.S. English was founded in 1983 by former U.S. Senator S.I. 
Hayakawa. Since then, we have grown to more than 1.8 million members 
who believe that public policy should emphasize the importance of our 
common language, English. On behalf of our members, we oppose the 
current version of H.R. 2499, the Puerto Rico Democracy Act. H.R. 2499 
fails to address the serious official language questions pertaining to 
Puerto Rico's status, and compounds this error by pretending to address 
these issues. As with the vote in the House of Representatives, any 
vote on H.R. 2499 will be featured prominently in the legislative 
scorecard we distribute to our members before the November elections.
    Our chief concern is that Puerto Rico's current policies with 
respect to its official language have never been allowed for any 
incoming state:

   While English is mandatory in Puerto Rico's public schools, 
        it is taught as a foreign language, and instruction rarely 
        exceeds one hour per day. Unsurprisingly, just 20 percent of 
        Puerto Rico's residents speak English fluently. By comparison, 
        California has the lowest proficiency rate among the 50 states, 
        and its rate is 80 percent.
   Puerto Rico's local courts and legislature operate entirely 
        in Spanish, with English translations available only upon 
        request.

    Dr. Yolanda Rivera, Director of the linguistics program at the 
University of Puerto Rico recently told the International Herald 
Tribune that the cumulative force of these government policies is that 
``English is a foreign language in Puerto Rico.''
    No state has ever been allowed to come into the Union when its core 
organs of government operate in a foreign language, and Puerto Rico 
must not be an exception.
    As your former colleague Daniel Patrick Moynihan wrote in his book 
Pandaemonium: Ethnicity in International Politics, a formal or informal 
requirement for all U.S. territories entering the Union has been that 
English be the operational language of government. In most cases, it's 
been an informal requirement: the vast majority of territories were 
operating in English when they petitioned for statehood, so a 
Congressional requirement would have been unnecessary.
    However, when the language of the new state government was in 
genuine doubt, Congress has always formally required English as a 
condition for statehood. In 1811, President James Madison signed the 
Louisiana Enabling Act, establishing the conditions under which heavily 
French speaking Louisiana could become a state. Under the Act, the 
laws, records, and written proceedings of the new state were to be 
solely in English. Three of our most recent states have presented a 
similar challenge: Oklahoma, Arizona, and New Mexico all entered the 
Union with large and historically rooted non-English speaking 
populations. In all three cases, Congress required English to be the 
language of public school instruction before the territory voted on 
whether or not to become a state.
    Requiring similar changes would force a sea change in Puerto Rico. 
While it is true that Puerto Rico technically has English as an 
official language, we must ask what this means in practice. I visited 
Puerto Rico's legislature last month, and I would encourage you to 
visit as well. One would think that with English being an ``official 
language'' that the legislative proceedings would be at least in both 
English and Spanish. Instead, all the legislative proceedings are 
conducted in Spanish. I was able to follow very well, since Spanish is 
my native language. But if, like most Americans, I did not speak 
Spanish, and I wanted a copy of the legislative proceedings in English, 
I would have had to make a special request.
    Some incoming states were allowed to keep their historical 
languages for ceremonial purposes. For example, New Mexico was allowed 
to keep Spanish and Hawaii to keep Hawaiian. Still, English was and is 
the operational language of government in both states. In Puerto Rico, 
it is the reverse: Spanish is the operational language, and English is 
there for ceremonial purposes.
    I am not criticizing Puerto Rico for their preference for Spanish. 
The island has substantial autonomy as a U.S. commonwealth, and they 
have the discretion to do what they think is best for the commonwealth. 
But if they want to become a state, they must not be allowed to have 
practices that no state in our history has ever held.
    As such, the legislative language related to English that passed 
the House of Representatives is woefully insufficient. The House 
measure requires that the official language policies of the federal 
government apply to Puerto Rico, as they would to all other states. I 
very much wish the federal government had an official language-my 
organization is trying to make it happen. But the federal government 
does not have an official language, so this ``requirement'' is useless.
    The House also defeated, by four votes, an amendment that would 
have required English to be the sole official language as a condition 
for Puerto Rico statehood. Make no mistake: without this amendment, 
Puerto Ricans would vote in a federally sanctioned plebiscite believing 
that they could enter the Union with their historically unprecedented 
language policies intact.
    That would mean a U.S. state in which American schoolchildren are 
taught English only as a foreign language.
    That would mean a U.S. state in which the state legislature and 
state courts operate in Spanish and in English only by special request.
    That would mean a U.S. state where only 20 percent of the 
population can speak English, and where government policies are not 
attempting to improve that number.
    The question of language in Puerto Rico is actually bigger than 
Puerto Rico. After all, how can the United States ask immigrants to 
learn English when they come here if we allow a state where public 
policy makes no attempt to achieve English fluency?
    Some in the statehood movement have suggested that Congress 
addressing the language question is premature, and that Congress should 
only address it once a plebiscite has been held. But if the true 
purpose of H.R. 2499 is to accurately assess Puerto Ricans' political 
wishes, Congress must give the voters accurate information about what 
each option entails. If Congress believes that Puerto Rico must truly 
adopt English in its official practices, the time for addressing it is 
now.
    Endorsing Puerto Rico's political self determination does not mean 
that Puerto Rico unilaterally determines the conditions under which it 
becomes a state. As has always been the case, defining the contours of 
statehood is up to the Congress. This Congress must make it clear to 
Puerto Rico-before any vote-that statehood means joining all of the 
other 50 states in operating their courts, schools, and legislature in 
English.
    The time for addressing these weighty issues of language and 
national identity are now. Without these changes to H.R. 2499, I 
respectfully ask that the Act be defeated.
                                 ______
                                 
     Statement of John A. Regis, Jr., President of Puerto Rico-USA 
                     Foundation, Inc., on H.R. 2499
    On April 29, 2010, the U.S. House of Representatives passed H.R. 
2499, a bill providing for federal recognition of the a political 
status referendum conducted by the duly-constituted local government of 
Puerto Rico on future political status options recognized by Congress 
as compatible with the U.S. Constitution and federal law applicable to 
Puerto Rico. We strongly supported H.R. 2499 and regard its passage as 
a significant and historic step toward a long over due definitive 
response by both Houses of Congress to the formal petitions in 1994 and 
1997 of the Legislative Assembly of Puerto Rico, requesting Congress to 
enable Puerto Ricans to vote on the legally valid status options 
Congress is willing to consider for Puerto Rico.
    Accordingly, it is now historically and legally imperative that the 
U.S. Senate take up H.R. 2499 and act in concert with the House of 
Representatives to define the future political status options Congress 
is willing to consider for Puerto Rico. Given the history of past 
status votes in Puerto Rico and the legislative record in both Houses 
of Congress in response to those local votes, timely and effective 
action by the Senate during this session of Congress clearly is 
consistent with the authority and responsibility of Congress for 
territorial status resolution under Article IV, Section 3, Clause 2 of 
the U.S. Constitution.
Why the Senate Should Act
    It no longer is credible or rational for Congress to expect much 
less require the 4 million U.S. citizens of Puerto Rico to conduct a 
referendum on future political status options in the absence of 
Congressional confirmation of the legally valid available options. The 
1994 and 1997 petitions by the people of Puerto Rico, acting through 
the local constitutional process established under federal law, confirm 
that meaningful and informed self-determination expressing the future 
status aspirations of the people can not realistically be expected 
unless and until Congress clarifies federal law and policy with respect 
to the status options formulated in the local political and 
constitutional process of Puerto Rico.
    The history of confusing and inconclusive votes conducted on status 
options formulated in the local constitutional and political process in 
1967, 1993 and 1998 compelled the Legislative Assembly of Puerto Rico 
to petition Congress to define the options to consider in 1994 and 
1997. Adoption of H.R. 856 by the House in March of 1998 was followed 
by U.S. Senate Resolution 279 in September of 1998, but the Senate 
measure failed to confirm any specific status options. The local 
government then sponsored a local status vote based on the legislative 
record before Congress in 1998, with results that reflected, among 
other things, the need for both Houses of Congress to act in concert to 
confirm the status options Congress as a whole is willing to consider.
    The action taken by the House in bringing H.R. 2499 to the floor 
for a vote reflected the progress made since 1998 in creating a record 
for federal law and policy. That record includes 12 years of 
legislative and oversight hearings in the Senate and House on the 
Puerto Rico status question, based on legislation that has been 
introduced with bipartisan sponsorship, as well as the 2005 and 2007 
reports by the President's Task Force on Puerto Rico's Status.
    Based on that record, the principles that must govern federal law 
and policy with respect to the status of Puerto Rico are clear:

   By voting to adopt the current local constitution in 1952, 
        the U.S. citizens of Puerto Rico approved a form of limited 
        local territorial self-government under the ``commonwealth'' 
        label, but that did not constitute consent of the governed to 
        indefinite territorial status without full self-government at 
        the national level.
   A federal mechanism must be created to enable the U.S. 
        citizens residing in Puerto Rico to consent to continuation of 
        the current status, which consent must be based on majority 
        rule to be sufficient and sustainable as a form of government 
        by consent of the governed.
   If a majority do not consent to continuation of the current 
        status as defined by federal law, there must be a mechanism 
        that makes possible the free democratic expression of the 
        wishes of a majority of voters regarding future status options 
        other than the current territorial ``commonwealth'' status that 
        Congress is willing to consider.
   The U.S. citizenship rights of residents of Puerto Rico are 
        defined restrictively and are less than equal to citizenship 
        rights in the states due to the territorial status of Puerto 
        Rico, so only U.S. citizens residing in Puerto Rico should be 
        eligible to vote in a referendum on the status of Puerto Rico, 
        rather than enabling residents of the states with ties to 
        Puerto Rico to vote to influence the determination of the 
        status and rights of residents of the territory.
   Any initial referendum mechanism on status in Puerto Rico to 
        ascertain consent to the current status or the freely expressed 
        wishes of the voters as to the options for a new status that is 
        not territorial will be advisory and not binding on Congress.
   It is not consistent with the principles of informed self-
        determination to present voters in a status referendum with 
        options that are not recognized under federal law. That denies 
        the right of self-determination to voters who want to vote on 
        legally valid options.
   Voters who do not consent to the present status have a right 
        to combine their vote to end the current status, even if they 
        have different aspirations as to the ultimate future status of 
        Puerto Rico.
   Majority rule on the status issue provides the most sound 
        basis for federal and local law and policy on the political 
        status issue, and it is not ``stacking the deck'' or creation 
        of a ``manufactured majority'' to enable voters favoring 
        different ultimate options to combine their vote to form a 
        majority to eliminate an option supported by less than a 
        majority.
   The current territorial status and ``commonwealth'' regime 
        limits self-government to local matters not otherwise governed 
        by federal law, and includes the ability of the local 
        government to request improvements in federal-territorial 
        relations.
   The local ``commonwealth'' party does not have a right to 
        demand that its party platform proposals to improve 
        ``commonwealth'' by converting it to a non-territorial status 
        combing features of both statehood and sovereign nationhood be 
        included on a referendum ballot, because that local party 
        platform is not recognized under federal law as a legally valid 
        status option, and has been rejected by Congress and the 
        federal courts for 60 years.
House Debate of H.R. 2499
    H.R. 2499 satisfied almost all of these criteria, developed through 
the comprehensive deliberative committee oversight and legislative 
hearing process in House. Indeed, the only provision of H.R. 2499 
inconsistent with these principles was the extension of voter 
eligibility in status votes under the act to Americans from Puerto Rico 
residing in the states. We respect the sentiment behind that provision, 
but do not believe it is consistent with the principle of government by 
consent of the governed, because only the U.S. citizens residing in 
Puerto Rico are governed by federal territorial law applicable to the 
commonwealth under the current status.
    By separating the threshold issue of consent to the current status 
in a first stage vote, H.R. 2499 would have given supporters of the 
current status and ``commonwealth'' the ability to preserve the status 
quo and seek improvements to ``commonwealth'' as it has for 60 years. 
As long as ``commonwealth'' supporters garnered a majority for that 
option there never would have been a vote under H.R. 2499 for the non-
territorial status options recognized by Congress.
    However, in the House debate representatives of the local 
``commonwealth'' party in Puerto Rico opposed H.R. 2499, and supporting 
proposed amendments intended to ensure continued minority rule and 
artificially imposed plurality votes based on inclusion of a 
``commonwealth'' option that is not recognized under federal law. 
Fortunately, the House did not consider proposed amendments to include 
the ``commonwealth'' status option of the local ``commonwealth'' party 
that had appeared in locally conducted status votes in 1967 and 1993.
    However, due primarily to confusion, misinformation and 
misunderstanding of the two-tier ballot in H.R. 2499, created by 
representatives of the local ``commonwealth'' party, the House did 
amend H.R. 2499 to combine the current status with the ``commonwealth'' 
system of limited local self-government in the second stage vote on 
non-territorial status options. This makes attainment of majority rule 
on a valid status option more difficult, and increases the chances of 
continued minority rule under plurality votes.
    The most disingenuous argument made in the House debate on H.R. 
2499 was that the voters of Puerto Rico had ``said no'' to statehood 3 
times in the earlier status votes. The truth is that statehood gained 
ground in the 1967 and 1993 vote against a ``commonwealth'' ballot 
option that promised a ``fantasy island'' status combining feature of 
statehood and independence that are not recognized under federal law as 
consistent with territorial status, independence, true sovereign free 
association or statehood. In 1998 statehood got the highest vote of any 
status option, ``commonwealth'' as defined by federal law got less than 
1%, and ``None of the Above'' got the highest vote. That record of 
locally conducted status votes is the best proof that Congress needs to 
end its silence on what status options are constitutionally and legally 
plausible.
H.R. 2499 Makes Senate Action Imperative
    But even with the amendments to H.R. 2499 that alter its original 
framework it is an historic achievement, and provides the basis for the 
Senate and the House of Representatives to reach agreement on a 
mechanism to enable a local referendum process that can lead to 
government by consent in Puerto Rico on the political status question.
    Now the highest and most urgent priority is for the Senate to act 
in concert with the House to define the status options that are 
recognized under federal law, so an informed and meaningful act of 
self-determination can occur in Puerto Rico. We look forward to working 
with the Committee to achieve that goal during this session of 
Congress.
                                 ______
                                 
 Statement of Jorge I. Suarez Caceres, Senator, Commonwealth of Puerto 
                            Rico, on HR 2499
    Senator Jeff Bingaman, Chairman of the Committee, and all other 
members. I make these remarks as State Senator of the Commonwealth of 
Puerto Rico and member of the Popular Democratic Party (PDP).
    The United States first claimed the Caribbean island of Puerto Rico 
as a prize after its victory over Spain in the Spanish-American War in 
1898. In 1952, the People of Puerto Rico and the Congress agreed to 
turn Puerto Rico into a democratic, self-governing, Spanish speaking, 
internationally recognized U.S. commonwealth. Since then, Puerto Ricans 
have voted to reject statehood in 1967, 1993 and 1998.
    On the first two instances Puerto Ricans were asked to vote on 
their political status, we were given three options to choose from: 
commonwealth, statehood or independence. In both instances, the 
majority voted for commonwealth. As a result, in 1998, in an effort to 
tilt the balance in their direction -after failing to move Congress in 
their favor, a pro-statehood administration in Puerto Rico came up with 
a new strategy. Instead of just three options, voters were given five; 
four political status definitions and a ``none of the above'' option. 
The plan was to dilute the commonwealth vote and win at least a 
plurality for statehood. However, their ``divide and conquer'' strategy 
failed embarrassingly when Puerto Rico's pro-commonwealth leaders urged 
their supporters to vote for ``none of the above,'' which won the 
majority of the votes. For a third time, statehood was rejected.
    All three plebiscites were originated by Puerto Rico law. They were 
not binding on the Congress. Millions of dollars were spent in 
campaigning and in the process. The result: the political status of 
Puerto Rico remains the same. Three plebiscites, three strikes, 
Plebiscites are out!!! Statehood is out!!!
    Nevertheless, in spite of the fact that history has shown that 
plebiscites do not work, statehood proponents are back, this time 
before the Congress, trying to ``divide and conquer''. In a new attempt 
to engineer a victory for statehood, they are teaming up with the pro-
independence movement for a yes or no vote on commonwealth status. 
Instead of proposing a new option, chosen via consensus, they are 
proposing another plebiscite with a yes or no vote on commonwealth 
status. If that plebiscite does not give them the desired result, then 
they propose yet ANOTHER plebiscite.
    H.R. 2499 is intended to transform the Island and its 4 million 
mostly Spanish-speaking inhabitants into the first Hispanic state. H.R. 
2499 would make Puerto Ricans vote on the issue of statehood yet again. 
This time, however, statehood supporters are leaving nothing to chance. 
They are pulling out all obstacles to rig the voting process in favor 
of statehood.
    H.R. 2499 authorizes a federally mandated plebiscite on whether 
Puerto Rico should remain a commonwealth, become a state or become an 
independent nation in association (or not) with the United States. A 
majority of Puerto Ricans have never favored statehood, but the voting 
scheme in H.R. 2499 is designed to guarantee that statehood finally 
wins.
    As the Senate Committee on Natural Resources prepares to mark up HR 
2499 you should be aware that this bill was not the product of a 
drafting process that was inclusive transparent nor fair. HR 2499, as 
introduced, would set forth a predisposed process designed to get rid 
of the Commonwealth option in order to steer the people of Puerto Rico 
towards a predetermined outcome in favor of statehood. This latest 
statehood bill proposes two plebiscites structured to knock out 
Commonwealth early on hoping to create a bogus majority in favor of 
statehood. Basically, in the first plebiscite voters would be asked 
whether Puerto Rico should continue to have its present form of 
political status (Commonwealth) or it should have a different one. 
Although in theory this might be a fair question, what it does, in 
effect, is to merge voters from the statehood and independence factions 
and stack the deck against the Commonwealth supporters. Once the 
Commonwealth option is eliminated the bill provides for a subsequent 
plebiscite between Independence, Statehood and a nondescript 
``sovereignty in association with the United States'', an option 
without U.S. citizenship that ignores and does not represent the 
aspirations of the largest group of Puerto Rico voters who like me 
support and advocate for Commonwealth.
    If you want to continue trying with plebiscites -which is absurd-
why not try with this: statehood, yes or no vote. A YES vote for 
statehood would constitute a more robust petition to the Congress. 
However, history has shown that plebiscites are costly and ineffective, 
especially if they are designed to favor one option over the others. 
Its time to try something else.
    This bill not only endangers the democratic principles that are the 
foundation of the United States of America but it also does not take 
into account the will of the majority of the people of Puerto Rico. I 
strongly believe HR 2499 is the wrong way for Congress to address our 
political status issue since it does not signify a true, fair and 
democratic process of self determination
    This bill is designed to get rid of the Commonwealth option in 
order to steer the people of Puerto Rico towards in favor of statehood. 
All Americans believe in democracy. In Puerto Rico, we believe in 
democracy, and the only thing we want is the right to decide for 
ourselves our future in a level playing field.
    Thank you.
                                 ______
                                 
 Statement of J. Aloysius Hogan, Esq., Government Relations Director, 
                      English First, on H.R. 2499
    To The United States Senate Committee on Energy and Natural 
Resources:
    There are numerous substantive issues associated with the prospect 
of Puerto Rican statehood. Some of these issues may be addressed only 
in this testimony.
    One of the most gauling aspects of this particular plan for Puerto 
Rican statehood is that it turns the statehood process on its head-
rather than changing to assimilate into the United States, some Puerto 
Ricans for statehood would have the United States itself change to 
admit a state with a foreign language as its official language, which 
admission has never been done before.
    Previously other states have had to accept English to become 
states, such as French-speaking Louisiana, as well as New Mexico, 
Arizona, and Oklahoma.
    As the Government Relations Director of English First, it is my 
responsibility to raise some of these issues again.
    I say ``again'' because the concept of statehood for Puerto Rico is 
like a bad penny that keeps turning up. The issue arose during the late 
Nineties when I served as Counsel to the House Resources Committee, 
then chaired by Congressman Don Young.
    The issue also arose about ten years before that and received much 
attention in the press and elsewhere around 1989 and 1990. The issues 
raised twenty years ago are valid today, and the included Issue Brief 
from English First pertaining to that era is as fresh and pertinent 
today as it was then.
    Let me first highlight a few notable points and raise a few 
questions that are addressed in more detail in the testimony below and 
in the attachment:

          1. Americans by huge margins favor making English the 
        official language of the United States. This issue must be 
        addressed when discussing Puerto Rican statehood.
          2. The example of Quebec's bilingualism is not favorable.
          3. A mandate of foreign translation is astronomically 
        expensive.
          4. The United States Supreme Court has decided on multiple 
        occasions that conditions on statehood must be determined 
        BEFORE admittance to the union.
          5. Congress could settle this matter in the same way that it 
        resolved the question of French-speaking Louisiana. The 
        Louisiana Constitution accepted by Congress when the state was 
        admitted to the Union clearly stated:

                All laws that may be passed by the [state] Legislature, 
                and the public records of this state, and the judicial 
                and legislative written proceedings of the same, shall 
                be promulgated, preserved, and conducted in the 
                language in which the Constitution of the United States 
                is written.

          6. The people of Louisiana, then and now, are free to speak 
        whatever language they choose, but the government and courts of 
        Louisiana are required to function in English.
          7. Puerto Rico may have numerous Members of Congress were it 
        to be admitted as a state. Just how many would it have? Might 
        it be twice as many as represent West Virginia, the Chairman's 
        state? How do the people of West Virginia feel about that?
          8. The average per capita income of Puerto Ricans has been 
        quite low, less than half that of our poorest state.
          9. How much does Puerto Rico currently cost federal taxpayers 
        each year?
          10. Puerto Rico's former Governor and Resident Commissioner, 
        Carlos Romero Barcelo, has written, in his book, Statehood is 
        for the Poor, that ``the island would take billions more out of 
        the federal treasury than it would put in,'' according to 
        Professor Antonio M. Stevens-Arroyo, writing in the January 22, 
        1990 issue of The Nation. Professor Stevens-Arroyo adds, 
        ``[t]his is the bottom line statehooders try not to mention 
        when in Washington.
          11. How devastating would the loss of U.S. corporate tax 
        exemption be for Puerto Rico?
          12. What percentage of Puerto Rico's revenue derives from 
        industry versus tourism?
          13. What is the unemployment rate of Puerto Rico?
          14. What would the total budget effect be of admission of 
        Puerto Rico as a state? U.S. Senator Kent Conrad has been 
        dubious of rosy estimates.

    Now allow me to delve more deeply into some of the history and 
issues.
The State of Play: The Play for ``State''
    If Puerto Rico, a Commonwealth of the United States, were to be 
admitted as a state with a foreign language as its official language, 
it would end the concepts of assimilation in America and of Americans 
learning English.
    We absolutely can stop this nefarious goal, and with your help we 
must.
    Lamentably the U.S. House of Representatives took a large step 
towards this nefarious goal on April 29, 2010, when it passed a bill 
toward making Puerto Rico a state. The bill, H.R. 2499, is misleadingly 
titled (as is common) the Puerto Rico Democracy Act of 2010.
    Throughout the process, Congress thwarted all attempts to have 
Puerto Rico abide by the same type of English-language rigors as 
Congress required Louisiana, New Mexico, Arizona, and Oklahoma to 
undertake to become states.
    Last summer neither side was willing to have even one witness who 
opposed the bill when on June 24th, 2009, the House Natural Resources 
Committee conducted a hearing.
    In July of last summer, the same committee voted 30-8 to send the 
bill out of committee and to the floor of the U.S. House of 
Representatives. At that time the Natural Resources Committee voted 
down an amendment by Congressman Paul Broun, an English First hero, 
which would have made English the official language of Puerto Rico.
The Latest Development
    I am pleased that you, the U.S. Senate Energy & Natural Resources 
Committee, are hearing from opposing Puerto Rican political parties on 
the bill and are allowing testimony from outside groups.
    English First was the only group that submitted testimony opposed 
to H.R. 2499 for the House hearing.
    English First is again proud to submit this testimony opposed to 
H.R. 2499 for this Senate hearing.
A Most Popular Issue
    English as America's official language is and has always been one 
of America's consistently highest polling issues, bringing moderates 
and liberals and conservatives together.
    Congress deserves this opportunity to have a real English-language 
vote-a chance for a truly pro-America moment.
House Rules Pose A Problem
    The problem lies in the ability of the majority in the U.S. House 
of Representatives to thwart even reasonable amendments to a bill by 
writing a ``rule'' for how a bill will be considered.
    Rules for considering bills are written in the aptly titled Rules 
Committee, which has 9 Democrats and 4 Republicans. That committee 
make-up is intentionally the most lop-sided in all of the U.S. 
Congress, so that the majority will never be at risk of losing control 
of the proceedings in the House.
    The minority obviously has a hard time ever winning a vote in the 
Rules Committee.
    The Puerto Rico statehood bill was one of the extremely rare bills 
this Congress to allow any amendments at all.
    The House Rules Committee has issued ``closed'' rules forbidding 
any amendments for almost every bill considered on the House floor in 
this two-year 111th Congress.
    In fact, for this bill, the Rules Committee passed a rule allowing 
8 amendments.
    The Ranking Member of the House Natural Resources Committee and 
Congressman Paul Broun's office led the charge for the English cause.
    Congressman Paul Broun submitted four amendments, and Congressman 
Steve King submitted one of his own. Additionally, Congressmen Steve 
King of Iowa, Jason Chaffetz of Utah, and Gary Miller of California 
each cosponsored a Broun amendment. For their leadership, these Members 
of Congress are English First heroes.
The Dregs and the Ruse
    Unfortunately, the amendments proposed by Congressmen Broun and 
Steve King were shot down by the Rules Committee.
    Most of the amendments allowed by the Rules Committee were the 
dregs, as you might expect, but a few were helpful.
    The worst amendment was submitted by Congressmen Dan Burton of 
Indiana and Don Young of Alaska. The Burton/Don Young amendment was the 
only amendment allowed on the English language, and it was a complete 
ruse.
    The Burton/Don Young destructive amendment was meant to give cover 
to bilingualism and multiculturalism. The amendment had three parts.
    The first part was completely useless and redundant because it 
retained the requirement to have the ballots in English as well as 
Spanish. The ballots were already required to be printed in English as 
well as Spanish. Repeating this requirement was useless and intended to 
make its supporters seem helpful to the cause of English when in 
reality they were doing nothing whatsoever.
    The second part of the amendment was also a complete ruse. It 
stated a requirement that the Puerto Rico State Elections Commission 
inform voters that if Puerto Rico retains its current status or is 
admitted as a State, any official language requirements of the Federal 
Government shall apply to Puerto Rico to the same extent as throughout 
the United States. The ruse there is, as we all too painfully know, is 
that there are no federal language requirements. As a result, it could 
just as well have been written to inform Puerto Ricans that they have 
no language requirements whatsoever.
    The third part of the abominable amendment was a Sense of Congress 
that the teaching of English be promoted in Puerto Rico in order for 
English-language proficiency to be achieved. As they say inside the 
District of Columbia beltway, that had no ``teeth.'' They might as well 
have voted, ``Good luck with that.''
Hero Doc Hastings
    The Ranking Member of the House Resources Committee Doc Hastings 
proved to be a true hero of the English language by championing our 
cause on the House floor. Congressman Hastings' discussion of the 
abominable Burton/Young amendment demonstrates his merit:

          Mr. HASTINGS of Washington. Mr. Chairman, I want to say that 
        this amendment is unnecessary, and really it masquerades a 
        whole debate on English, and let me explain why. This amendment 
        has essentially three components, and I will paraphrase what 
        those components are. They talk about all ballots used in the 
        plebiscite must be in English, number one. Number two, 
        prospective voters are informed that the official language 
        requirements of the Federal Government shall apply to Puerto 
        Rico. And number three, it has a sense of Congress that it is 
        in the best interest to promote English.
          Now let me address each of those issues but let me suggest 
        that I believe this amendment is offered to only deny a 
        straight up-or-down vote on the issue of English as the 
        official language.
          First of all, the language that my good friend from Indiana 
        read in support of this amendment is already in the bill. It is 
        on page 5. It says that the plebiscite will be carried out in 
        English. So we don't need that because it is already in the 
        bill.
          The second provision is really meaningless. That is the one 
        that talks about Federal language requirements. We know there 
        is no Federal requirement in this country as to English, even 
        though 30 States have adopted that. There is no official one 
        from the United States. There should be, but there isn't. 
        Finally, I will concede at least a little point. The sense of 
        Congress language really has no statutory effect, but I will 
        concede this: It is at least timely. Why do I say that, because 
        just 3 days ago the Secretary of Education in Puerto Rico said: 
        ``English is taught in Puerto Rico as if it were a foreign 
        language.''
          In the 2005 Census, 85 percent of Puerto Ricans said they had 
        very little knowledge of English. As a practical matter, in the 
        Commonwealth legislature, and in its courts and classes in 
        public schools, Spanish is the primary language. So there is 
        nothing in this amendment that will change that. What should 
        have happened and didn't happen is the Rules Committee denied a 
        straight up-or-down vote on English as official language. That 
        was embodied in Mr. Broun of Georgia's amendment. But 
        unfortunately we were denied the opportunity because this is a 
        structured rule to at least have a debate on that. If the 
        intent of the Rules Committee is to say this is the one we 
        should have, I totally disagree with that. So for that reason, 
        I urge my colleagues to vote ``no'' on the amendment.
           . . . the pertinent part of this amendment is already in the 
        bill, and that speaks to the ballot; the other two are really 
        meaningless. Frankly, this amendment does not even need to be 
        considered today; but if it's a cover, then it's a cover, and 
        let's call it what it is. [Emphasis added.]

Ruse Redux
    Congressmen Burton and Don Young were actually reprising their 
spoiler roles for English, which they first played back in March of 
1998 by gutting English First Hero Congressman Gerry Solomon's good 
English amendment during the previous Puerto Rico statehood debate.
    To add insult to injury, these two masquerade their opposition to 
English as the official language as support for English.
Delivering the Message
    Congressman Paul Broun of Georgia spoke strongly against the 
Burton/Don Young abominable amendment. In doing so he specifically 
noted on the House floor the opposition of English First and other 
groups to the amendment.
Historical Fact
    Congressman Broun pointed out no state has ever been admitted to 
the union with a language other than English as its official language.
A Walk through Puerto Rico's History
    English was the sole official language of Puerto Rico after March 
2, 1917, when President Woodrow Wilson signed the Jones Act to make 
Puerto Rico a territory of the United States (``organized but 
unincorporated''), to grant citizenship to Puerto Ricans, and to make 
English the sole official language of Puerto Rico. English as the 
official language of Puerto Rico effectively ended in 1946 when a bill 
was passed ordering ``the exclusive use of the Spanish language for 
teaching in all public schools.''
    In 1950 Congress authorized Puerto Ricans to draft their own 
constitution, establishing the Commonwealth of Puerto Rico.
    In 1991, Puerto Rico declared Spanish the only official language.
    In 1993, Puerto Rico declared English and Spanish both as the 
official languages.
The Right Way and the Wrong Way to Become a State
    The reality is that Puerto Ricans have repeatedly refused statehood 
in four previous popular votes. In 1952, 1967, 1993 and 1998 the people 
in Puerto Rico voted on statehood and they voted it down all four 
times.
    This bill was written to force TWO VOTES instead of one on what 
status Puerto Rico should have. This never-used-before, double vote 
rigged the effort to get a majority of Puerto Ricans to vote in favor 
of statehood. The double vote was essentially a divide-and-conquer 
technique to defeat the existing commonwealth status.
    The idea was to aggregate all other options against the existing 
commonwealth status in the 1st vote and then, with the most popular 
option gone, to push statehood over the finish line in a 2nd vote. That 
kind of crooked questioning wouldn't even cut it in a push poll. It's 
just not a clean, simple, straightforward way to ask what people want.
    Jose A. Hernandez-Mayoral who has served as Secretary of Federal 
and International Affairs for the Popular Democratic Party of Puerto 
Rico states, ``What is at play with this legislation is the railroading 
of a self-determination process. . With the commonwealth option out of 
the ballot, statehood is finally, albeit crookedly, assured a 
victory.''
    We don't want to be faced with the possibility that through a 
grossly rigged vote with oppressive arm-twisting, statehood gets a bare 
majority in a fifth try. States ought not to be admitted to the union 
under such circumstances, when the population is teetering in its 
opinion at best, even when skewed through the originally proposed 
voting process.
    New York Congressman Charlie Rangel stated on the House floor that, 
``Tom Foley once told me when I thought that statehood was really going 
to pass in Puerto Rico, I said, Mr. Chairman, how are we going to 
handle this question with the Members? How are we going to handle the 
question of what parties these people are going to belong to? He said, 
`Forget it, Charlie. The only time we're going to have statehood is 
when there is a mandate. We're not going to have a divided territory 
become a State.' That was a guy who told me that from his background in 
history that he was an expert in this type of thing.''
    Well, Puerto Rico is divided on the issue of statehood.
    It's close enough that even if enough votes for statehood were 
garnered by hook or by crook this year, it could change next year or 
the year after.
    You don't want a situation where the state votes for statehood, and 
a couple of years later most people don't want to be a state.
    You could be faced with a brand new state fighting to exit the 
Union.
    That would be a disaster for which you on this committee would not 
want to be responsible.
    When Alaska and Hawaii were admitted, HUGE majorities favored 
statehood. That's the right way to become a state.
    The fact is that most Puerto Ricans feel a national identity.
    I personally have lived in New Jersey, New York, Ohio, Florida, 
Michigan, Indiana, the District of Columbia, and now I am a Virginian.
    In contrast, when Puerto Ricans move about the United States, they 
still consider themselves Puerto Rican.
    What's missing is the assimilation.
    This very bill you are hearing today reinforces this lack of 
assimilation. Were Puerto Ricans ready to take their place as co-equal 
with the 50 states, they would consider themselves New Yorkers after 
having lived in New York for some time.
    However, Resident Commissioner Pierluisi wrote the bill as 
considering people who have lived in New York virtually their entire 
lives to be Puerto Ricans and not New Yorkers. Even the Resident 
Commissioner who is advocating statehood is not ready to recognize or 
accept Puerto Ricans' assimilation.
Passage of a Key Amendment
    We secured an upset victory on the House floor with passage of one 
of the most helpful amendments.
    Representative Virginia Foxx of North Carolina offered an amendment 
to fix the rigged voting set up by the bill. Our victory in passage of 
the Foxx amendment allows supporters of the commonwealth status quo the 
option of voting their preference during the second stage of the 
plebiscite. By making the vote fairer and nearer the actual wishes of 
the people, the probability of statehood is diminished.
    Winning that vote is a big success, because we must not have 
statehood without AGAIN having English as the sole official language of 
Puerto Rico.
Securing the Votes of ALL of the Minority Leadership
    Furthermore, obtaining the actual votes of ALL of the Minority 
Leadership and the Ranking Member is yet another discreet step.
    That's especially difficult when a couple in the Minority 
Leadership supported and even cosponsored the underlying bill. They 
knew full well that our meritorious issue could prove a ``poison pill'' 
for the whole bill.
    Yet the force of our communications and our combined suasion was 
strong.
    We indeed secured all of the votes from these key people.
Getting a Good Result on the Motion to Recommit
    Indeed we only ultimately lost the Motion to Recommit by a 4-vote 
margin, one of the best votes on a Motion to Recommit in this entire 
two-year Congress.
Changing Hearts, Minds, and Votes
    A full 58 Republicans cosponsored the Puerto Rico bill without any 
provision for English.
    That error will earn them a black mark in English First's vote 
rating.
    Changing Members' hearts and minds is very difficult after they 
have put their name-their stamp of approval-on a piece of legislation.
    It is exceedingly rare to see Members vote against bills they have 
cosponsored. It can be quite embarrassing.
    Rather than look at the Members' co-sponsorship mistakes as a 
problem, English First saw opportunity.
    Senator Everett Dirksen, a former Minority Leader who had a Senate 
office building named after him, famously said ``I see the light when I 
feel the heat.'' So it is with Congress-when Members hear from their 
allies and constituents that they have made a mistake, they CAN be 
persuaded to change course.
    ``Flipping'' Representative is one of the toughest challenges of 
lobbyists and constituents.
    We had amazing success.
    Of the 58 Republicans who cosponsored H.R. 2499, the Puerto Rico 
statehood bill, 32 did not support the bill in the end. 27 actually 
voted against the bill they had cosponsored, and another 5 did not vote 
at all.
    In other words, we changed MOST of their minds!
Beware of ``The Tennessee Plan''
    The University of Puerto Rico recently studied the process for 
statehood. They explained an important phenomenon,

          Several states, beginning with Tennessee in 1796, chose a 
        bold method of obtaining admission to the union. The states 
        which followed Tennessee's initiative undertook a uniform 
        course of action once they made a decision to seek statehood. 
        The `Tennessee Plan,' as it has come to be known, consists of 
        the following steps: . . . 
          Holding state elections for state officers, U.S. senators and 
        representatives;
          In some cases, sending the entire congressional delegation to 
        Washington to demand statehood and claim their seats;
          Finally, Congress, presented with a fait accompli, has little 
        choice but to admit a new state through the passage of a simple 
        act of admission.  . . . 

    The statehood party in Puerto Rico, called the New Progressive 
Party, has adopted the Tennessee Plan as its platform.
Carpe Diem
    The upshot of intent to pursue the Tennessee Plan is that now is 
the time that counts.
    It's game-time, not scrimmage-time.
    Without the appropriate changes now, Congress later would have 
little choice but to admit Puerto Rico as a state and would have 
difficulty holding up statehood for any conditions such as having 
English as their official language.
    If we admit a state with an official foreign language, efforts 
toward a national language will be severely hampered. It might take 
decades or a century to come back from such a withering defeat.
    Don't let the sand run through our fingers! Seize the day!

    OPPOSE PUERTO RICO STATEHOOD WITHOUT ENGLISH FIRST!
What We're Fighting For: A Way of Life for Us and Our Descendants
    The battle is over multiculturalism.
    Former Maryland Congressman Albert Wynn stated our opponents' point 
of view most succinctly last time this Puerto Rico battle was fought in 
1998, ``I think it is time we move forward to true multiculturalism and 
accept that fact that we do not have to have an ordered language in our 
society.''
    Some statehood proponents want to end assimilation, our American 
identity, and our common English language.
    Let's stand up for American heritage and the American Way.
    Don't let the sand run through our fingers! Seize the day!

    OPPOSE PUERTO RICO STATEHOOD WITHOUT ENGLISH FIRST!

    Thank you for the opportunity to raise these important points and 
questions. Satisfactorily addressing each and every one of these points 
is essential to moving forward with this bill. More attention is paid 
in the Issue Brief which follows. Even more attention and perhaps more 
hearings, such as in the Senate Finance Committee and the House 
Committee on Ways & Means, is necessary.
                                 ______
                                 
   Statement of Maj. Gen. Orlando Llenza, USAF (Ret.), Chairman, and 
 Justin O'Brien, Executive Director, United States Council for Puerto 
                      Rice Statehood, on H.R. 2499
    To The Honorable Members of the Committee on Energy and Natural 
Resources:
    Puerto Rico has now been a territory of the United States for 112 
years, which gives it the dubious distinction of having been a 
territory for half the life of this Republic since the U.S. 
Constitution became operational in 1787, or 222 years ago. 
Notwithstanding the progress that has occurred during the period of 
Puerto Rico's relationship with the United States, the unequal 
territorial reality of the island has not changed. Though the Congress 
granted Puerto Rico a local constitution that affords limited local 
self-governance, the island's American citizens remain subordinate to 
the legislative will of Congress without their own sovereign 
participation. Puerto Rico and Puerto Ricans remain in a state of 
inequality and without sovereignty.
    As equality and education advocates, equality and education are our 
concerns. We believe that equality of citizenship and civil rights for 
the four million Americans who live in Puerto Rico cannot be attained 
without freely exercised self-determination, and self-determination 
cannot be achieved without the Congress sanctioning, and providing 
clarity to the process by which an island plebiscite will be carried 
out and regarding the results returned by such a process. The Congress, 
on various occasions through the decades, has merely expressed its 
sense that Puerto Ricans should be allowed to exercise their right to 
self-determination to articulate their wishes on the question of 
status, but has never actually passed legislation sanctioning and 
supporting a democratic vote in Puerto Rico to resolve the island's 
unequal, second-class status. As originally written, H.R. 2499 would 
have facilitated that by allowing the people of Puerto Rico to vote, 
with congressional sanction and support, on what at a human level is 
the most i mpactful daily issue of their lives: the status of their 
collective Puerto Rican future. It is inconceivable that some 45 years 
since the landmark Civil Rights Act of 1964 and the Voting Rights Act 
of 1965, equality of citizenship and sovereign representation in the 
affairs of the government that exercises control over their political, 
economic, and civil rights are denied to four million of our citizens.
    Puerto Ricans are proud Americans who suffer second-class 
citizenship that is not constitutionally-guaranteed, and they deserve a 
just opportunity to choose from constitutionally-viable, sovereign 
status options. By virtue of unequal citizenship, the American citizens 
of Puerto Rico also have unequal democratic, political, economic, and 
civil rights. H.R. 2499, for the first time, will allow voters to 
choose directly with their vote, and the support of congressional 
sanction, whether they wish to maintain the current territorial status, 
or seek sovereignty through a constitutionally-viable and acceptable, 
permanent status option.
    H.R. 2499, as originally submitted by Resident Commissioner for 
Puerto Rico, Pedro Pierluisi, would have authorized a two-part 
plebiscite that unquestionably provided an equal and unbiased 
opportunity for Puerto Ricans to terminate or maintain the current 
unequal territorial status or replace it with one of the three 
constitutionally-valid, sovereignty-granting options: Independence, 
Statehood, or Sovereignty in Free Association. If Puerto Ricans do 
choose to continue their present territorial status, in the first vote 
of the plebiscite, then H.R. 2499 prescribes and authorizes future 
plebiscites to be carried out by the government of Puerto Rico every 
eight years. Thus, the legislation would assure that the voters of the 
island will be permitted and will have the opportunity to eventually 
resolve the unequal status question, and it would make clear that the 
current territorial status and the citizen inequality it maintains are 
not acceptable in perpetuity. It is that simple. Now, however, it 
appears that the effort to enfranchise four million Americans is to be 
subjected to a farcical process where the territorial status would be 
voted on twice, it having been cynically added to the sovereign-
granting choices comprising the second plebiscite that Puerto Ricans 
would choose from; this second plebiscite being held in the event that 
Puerto Ricans would choose to end the current territorial 
``Commonwealth'' status in the first place.
    In keeping with the 112 years to date, indications from the Senate 
are that its members are not inclined to bring the legislation to a 
vote, the net result of which will be continued inequality for four 
million and no congressional sanction for Puerto Ricans moving forward 
to resolve the issue. In light of this possibility, the most that 
Puerto Ricans on the island and mainland Americans alike can hope for 
in place of congressional sanction are clear statements on what non-
territorial and permanent status choices are acceptable. Certainly, 
Puerto Ricans in Puerto Rico can debate, discuss, and act, but in the 
absence of clear language from the Congress, the public discourse in 
Puerto Rico will be muddied by opponents of self-determination for 
narrow political ends with the goal of negating principled public 
discussion on citizenship rights, equality and sovereignty.
    Successful passage of H.R. 2499 will also dispel the dishonest 
argument that the four million American citizens on the island are, and 
should be, content to live with second-class citizenship, 
disproportionate unenfranchised representation, and perpetual 
inequality. To suggest that second-class citizenship is or should be 
acceptable as a matter of choice by virtue of limited self-governance 
in Puerto Rico must be recognized as a false choice and anathema to the 
just and right-minded.
    Puerto Rico has been a territory since 1898 and Puerto Ricans have 
been American citizens since 1917. In the years since, Puerto Rico's 
seemingly greatest political rights accomplishments were the creation 
of a constitutionally limited local government and being granted the 
ability to elect and send a non-voting delegate, the Puerto Rico 
Resident Commissioner, to the U.S. House of Representatives. Puerto 
Rico remains unrepresented in the U.S. Senate. In addition to the 
absence of proportionately equal, enfranchised representation in the 
legislative branch, Puerto Ricans cannot vote for their President, 
their head of state. The American citizens of Puerto Rico have served 
in every military conflict that our country has participated in since 
World War I, in all branches of the U.S. Armed Forces. Today, hundreds 
of thousands of American veterans live in Puerto Rico, but they cannot 
enjoy the very rights they fought for and served in defense of 
throughout the world under the American flag. Puerto Ricans are U.S. 
citizens, and despite an exceptionally strong history of national 
service in the Armed Forces, the current unequal status precludes the 
people living on the island from voting for their Commander-in-Chief.
    As our organization's name suggests, the U.S. Council for Puerto 
Rico Statehood supports statehood as the preferred and specific 
permanent status option best for and in the interests of Puerto Rico, 
Puerto Ricans, and all Americans. However, our support for H.R. 2499 
did not emanate from the idea that it was a ``statehood bill'' as 
opponents of self-determination have chosen to publicly characterize 
it, as quite clearly it was not and is still not. On the issue of 
outcomes, the bill is and has been decidedly neutral. Rather, the 
Council's strong support for H.R. 2499 derived from the legislation's 
ability to provide an unbiased opportunity for the people of Puerto 
Rico to exercise their right to free self-determination in a fashion 
that settles the confusions that have marred past local plebiscites and 
decision-making in the island's electoral processes.
    During committee proceedings in the U.S. House of Representatives, 
the bill's author, Resident Commissioner Pierluisi, described talk of 
results and majoritarianism and pluralism as premature. Such talk 
remains premature. All constitutionally-valid options were presented 
equally and neutrally in H.R. 2499. As equality advocates, it is our 
position that if statehood is construed as a preferable option over 
others, then it is merely because it is the status alternative that 
represents the interests of all Americans better than any other option, 
but most certainly not because the Congress wants to impose statehood 
on Puerto Ricans. Imposition does not represent self-determination and 
this legislation clearly, without bias or prejudicial determination, 
provides for the majority expression of Puerto Ricans as to their 
desired status choice.
    Opponents of the legislation, who indeed are opponents of any self-
determination process, whether there is congressional sanction or not, 
argue that H.R. 2499 creates ``an artificial majority for statehood'' 
because the territorial ``Commonwealth'' option is, or was not 
competing directly with the other options. Of course, the subordinate 
territorial status was separated from sovereignty-granting options in 
the original version of the legislation. With the insertion of the 
``Commonwealth'' option in the second part of the plebiscite process 
that resulted from the Foxx Amendment, an amendment that process 
opponents themselves asked to have included, this argument is now moot. 
However, despite the Foxx amendment's inclusion, these same opponents 
still refuse to support the legislation and any self-determination 
process. This has been expressed publicly and on the record during the 
Senate Committee hearings of May 19, 2010. Given these documented 
facts, is there any way to construe these actions and participation in 
the Page 4 of 15 process as other than disingenuous? In light of these 
facts, can this engagement in public discussion and debate on the 
status argument be considered sincere?
    The ``other options'' as presented in the second part of the 
proposed plebiscite process are all permanent and non-territorial in 
nature, and the ``Commonwealth'' option is not. If the people of Puerto 
Rico are to decide on a permanent sovereignty-granting option, how, 
then, could the status quo be permitted to appear amongst sovereign-
granting options without giving Puerto Ricans the impression that the 
``Commonwealth'' option is an equality-granting, permanent, sovereign 
option? Further, are we to ask the Puerto Rican electorate to self-
determine themselves out of self-determination by ``voting'' to remain 
an unequal, subordinate territory having already expressed that they do 
not wish to remain so in the first instance? The first question of the 
plebiscite would directly ask the people of Puerto Rico if they wish to 
keep the current territorial status. If so, then Puerto Ricans can vote 
to do so accordingly. Ultimately, all constitutional and permanent 
status options would have been on the ballot with the process spelled 
out by H.R. 2499, so the people of Puerto Rico would have been 
permitted to vote and make their sentiments clear, with the blessing of 
Congress!
    Critically, H. R. 2499 was legislation that neutrally put forth to 
the voters of Puerto Rico all of the sovereignty-granting options 
accepted under the U.S. Constitution in an equal and balanced way. That 
balance and equality has been undone with the inclusion of the 
territorial status option in the second plebiscite. The only 
differences that exist between one constitutionally-valid status option 
and the others are the differences that are naturally inherent in each, 
and the Congress cannot be expected to, nor should, ``water down'' a 
legitimate self-determination process or any one legitimate option 
simply because opponents of citizen equality present it as ``too 
good,'' holding too much promise, or suggest that it puts the other 
options at a disadvantage. To behave otherwise is to pretend to level a 
playing field that is neither level nor equal in the first instance.
    As advocates of citizen equality for Puerto Ricans within the 
Union, we are confident in the facts favoring statehood as they stand. 
To concoct fantastic alternatives, or to suggest that yet-undiscovered 
status alternatives exist, and engage in endless debate on what is or 
is not possible, more than a century since Congress assumed control of 
the destiny of the Puerto Rican populace, can only be described as a 
ploy to avoid facing the facts regarding what is constitutional and 
what is not. Avoiding the facts will definitively result in perpetual 
inequality for Puerto Ricans. Beyond discussions of constitutionally-
viable and acceptable status alternatives, and in the context of 
decolonization and the perspective of international law United Nations 
Resolution 1541, approved by the United Nation' General Assembly in 
1960 is very clear on the matter at hand; there are only three 
acceptable status alternatives that provide citizen sovereignty. The 
resolution defines the three legitimate options for full self-
government as Free Association with an independent State, integration 
into an independent State, or independence.
    The complexity of Puerto Rico's unequal status has made it possible 
for a variety of groups to impart myths, opinions, and inaccurate 
information as erstwhile truths, which unfortunately has been made 
easier because the Puerto Rico status issue has now spanned an entire 
century and forty-eight Congresses. The sole political group in Puerto 
Rico that refuses to directly and openly recognize the Congress' 
Territorial Clause powers over the island territory is composed of 
status quo (or by its English misnomer, ``Commonwealth'') supporters, 
represented electorally by the Popular Democratic Party. This is 
despite the facts that the Territorial Clause of the U.S. Constitution 
and a succession of public expressions by the mainland's political 
leadership over a period of decades have made clear that Puerto Rico 
remains--despite limited local autonomy--a territory of the United 
States subject to the authority of the Congress. As has been 
articulated by Commonwealth adherents and their leadership, it is their 
firm belief that Puerto Rico is already a sovereign body politic, and 
any changes to Puerto Rico's relationship with the United States of 
America must have their blessing as the would-be caretakers of the 
status quo alternative. Adherents to the territorial status quo contend 
that sovereignty was granted to Puerto Rico through a ``compact'' in 
Public Law 600, in 1950, even though the U.S. Congress was quite 
explicit in its intentions when it said:

          [Public Law 600] would not change Puerto Rico's fundamental 
        political, social, and economic relationship to the United 
        States. Those sections of the Organic Act of Puerto Rico 
        concerning such matters as the applicability of United States 
        laws, customs, internal revenue, Federal judicial jurisdiction 
        in Puerto Rico, representation in the Congress of the United 
        States by a Resident Commissioner, et cetera, would remain in 
        force and effect. [ . . . ] The sections of the Organic Act 
        which [Public Law 600] would repeal are concerned primarily 
        with the organization of the insular executive, legislative, 
        and judicial branches of the government of Puerto Rico and 
        other matters of purely local concern.

                    S. Rept. 81-1779, at 3-4. (almost verbatim on H. 
                Rept. 81-2275, at 3.)

    Opponents of self-determination, seek to maintain the status quo at 
all costs, irrespective of whatever principles may be compromised. This 
is evidenced in the variety of actions by status quo proponents in the 
period running up to the floor action on H.R. 2499 in the U.S. House of 
Representatives and since. If passed, island actions pursuant to the 
provisions of H.R. 2499 would potentially bring change. Accordingly, 
status quo proponents rejected the bill as biased and unfair. However, 
these same proponents then insisted on participating in the legislative 
process nonetheless, actively working to have the bill amended to 
include the current territorial status a second time, in the second 
vote, regardless of a possible defeat in the first. They were 
successful in having the Foxx Amendment included. The president of the 
pro-status quo ``Commonwealth'' party, the Puerto Rico House of 
Representatives Minority Leader Hector Ferrer, has described in the 
press and media how he used his relationship with the University of 
North Carolina System, to urge Congresswoman Foxx from North Carolina 
to include the amendment that adds the unequal territorial status 
option a second time in an authorized self-determination process by 
adding it to the second round of voting. Yet, in the Senate Energy and 
Natural Resources Committee proceedings, Mr. Ferrer stated for the 
record that he and his party still do not support the legislation or 
the process. It is reasonable to suggest that a mockery is being made 
of our government, and clear that the rights of four million American 
citizens are being toyed and played with for political ends.
    It is also evident that adherents of the current unequal status 
would suggest that U.S. citizenship without full and equal rights as 
citizens should be acceptable to all, even though as has been 
demonstrated for decades in the island's electoral and plebiscite 
processes, such a position does not command the support of the majority 
of Puerto Ricans. While it can be academically argued that Public Law 
600 represented a `compact' inasmuch as Puerto Rico residents were 
consulted in the acceptance or rejection of the island's constitution, 
this definitively cannot be construed as a treaty or any other 
agreement of full and equal partnership between a separate Puerto Rico 
and the United States. The constitutional facts speak for themselves 
and the acceptance of the congressionally-approved island constitution 
through Public Law 600 does not negate congressional plenary authority 
and responsibility over and for the territory.
    Although supporters of the territorial status will not openly 
recognize Puerto Rico's territorial status, elements within this 
grouping seek to ``enhance'' or ``develop'' the current 
``Commonwealth'' territorial status in an attempt to remake a 
constituency base and regain community power. As such, they seek to 
maintain veto power over self-determination legislation that is not of 
their making. Despite having had decades to develop, discuss, offer, or 
propose an alternative in this mode, regardless of such a notion's lack 
of constitutionality, no such proposal has ever been crafted or offered 
to the Puerto Rican public for its approval or disapproval. Only with 
successive efforts to afford Puerto Ricans on the island an unequivocal 
opportunity to support or reject the current territorial status has 
rhetoric been conveniently resuscitated to muddy public discussion.
    Proponents of the concept of ``enhanced Commonwealth,'' amongst 
status quo adherents, seek to gain a veto power over federal laws, 
while simultaneously maintaining constitutionally guaranteed American 
citizenship and continued preferential tax treatment from the federal 
government. In other words, supporters of inequality seek to continue 
to make good on the intellectual falsehood and congressionally-rejected 
promise to the Puerto Rican electorate that a new, undiscovered status 
alternative can be fashioned and negotiated with the U.S. Congress. 
``The Best of Both Worlds,'' as the new compromise has been called, is 
an attempt to obtain rights and freedoms that no single state of the 
Union enjoys, and it seems incredible that Congress would ever support 
it. In so doing, they would seek to avoid an electoral showdown on 
constitutionally-valid status options.
    Such aspirations for Puerto Rico, which amount to seeking to make 
the island ``The Independent Republic of the State of Puerto Rico,'' 
must be viewed as a constitutional mockery. This perversion of the 
American electoral process, in effect a would-be constitutional 
abomination, can only be viewed by all Americans as a mockery of the 
democratic process of self-determination for Puerto Rico, and 
contemptible to the intelligence of members of the United States 
Congress, mainland taxpayers, and their island opponents who are 
offering constitutionally-viable alternatives. How else could any group 
seek to unilaterally create some new and fantastic, notional concept of 
constitutionally-viable status?
    Opponents of equality in Puerto Rico have concocted various thin 
arguments in favor of continuing, even ``improving,'' the now-debunked 
``Commonwealth'' status, and at the same time have sought to confuse, 
obstruct, and obfuscate the issues and legislative process in order to 
derail congressional sanction and support for a self-determination 
process. This quest clearly continues as evidenced by continued 
opposition to all attempts to bring either self-determination or 
equality to these four million citizens. The movement for the 
compromise formulated as a temporary solution to Puerto Rico's status 
question, between independence and statehood in the 1950s, has now 
found comfort in its social standing, and its representative grouping 
is unwilling to relinquish its grip from the originally temporary 
status. Every argument fabricated by the opponents of equality has been 
fairly and honestly discredited, and at each successive turn and effort 
towards the provision and attainment of citizen equality, yet another 
different argument is introduced to further stall any possible 
progress. All of these arguments and objections come with the explicit 
goal of keeping the four million second-class American citizens living 
in Puerto Rico from having the opportunity to end the territorial 
relationship through democratic self-determination at the ballot box 
while simultaneously maintaining political viability. A recently 
introduced new argument seems to revolve around some notion of 
``Consensus.''
    It is reasonable to enquire what the acceptance of this notion 
means in the context of the unfinished Puerto Rico status debate. It is 
clear from data and conjecture that there is consensus on the island 
that the current territorial status in unacceptable to a majority of 
the people. There is also consensus among the mainland political 
parties as evidenced in their 2008 platforms that self-determination is 
a worthy undertaking in the name of freely-exercised enfranchisement. 
It is reasonable to ask whether veto power should be afforded to 
enfranchised mainland legislators in relation to the right to self-
determination of four million citizens with neither franchise nor 
sovereignty of their own.
    To suggest that proponents of the constitutionally-valid status 
alternatives must agree to mutually recognize an as-yet-undetermined 
status alternative, an alternative that has not been identified as 
constitutionally-valid to date during the 222 years of the Republic, 
can only be viewed in the realm of the ridiculous. Successive 
interagency working groups and presidential task forces on the status 
of Puerto Rico, traversing multiple administrations of different 
political parties, have definitively reported that constitutionally-
valid status options to be used in island plebiscites or referenda do 
not include possibilities beyond what is constitutional. For decades, 
Congress and differing administrations have consistently rejected with 
clarity, attempts to include such options.
    Organizations devoted to soiling Puerto Rico's image and 
denigrating the human worth of Puerto Ricans because Puerto Ricans 
speak Spanish as a matter of heritage, culture, and custom have decided 
to wave ``a cautionary flag'' about Puerto Rican statehood in the 
context of the congressional discussion on H.R. 2499. Inasmuch as H.R. 
2499 is clearly not about Puerto Rican statehood, but rather freely 
exercised self-determination, non-partisan observers such as the 
Council cannot help but see this new attack against Puerto Rico as 
another attempt by those who would deny equality to try to confuse, 
obstruct, and derail opportunity for self-determination and subvert the 
century-long struggle for equal rights.
    The submission of statements that have not been redacted in over a 
decade demonstrates a lack of knowledge about the status issue and 
Puerto Rico. They further illustrate that their commitment is not to 
equality or affording sovereign rights to four million American 
citizens. For such organizations as English First, the issue of Puerto 
Rico's status is not about equal democratic, political, economic, and 
civil rights for all American citizens, no; rather, in their own words, 
Puerto Rico's status is simply ``a bad penny that keeps turning up.'' 
It is evident that second-class citizenship for Puerto Ricans is 
acceptable to this group.
    The U.S. Council for Puerto Rico Statehood unequivocally rejects 
the ideas advanced by organizations such as English First that American 
citizens in a Spanish speaking U.S. territory are less American and 
less able to fulfill their duties as citizens of a state of the Union. 
We believe that such ideas are at best misguided and at worst rooted in 
bigotry and xenophobia. These ideas also disregard the history of our 
western and southwestern states. Equality of citizenship and civil 
rights within the union and federation of the states, our United 
States, can only be accomplished for Puerto Rico through equal standing 
within the American union. This equal standing can only be enjoyed 
through sovereign voting representation in both chambers of the U.S. 
Congress on a par with those of the states.
    Although it has now been 50 years since the most recent new 
admissions to the Union, it is often overlooked that some five states 
joined from 1900 to 1959 with two non-contiguous territories joining 
that year: Alaska and Hawaii. Importantly, two of the five, Hawaii and 
New Mexico, are officially bilingual states. The recognition of an 
official language, or none, is now an established right of the states. 
The idea that the costs of translation, if any, in any public process 
or proceedings must be viewed as prohibitive, is negated, for example, 
by bilingual presentations online and otherwise by the preponderance of 
federal government departments and agencies, multilingual drivers exams 
in states nationwide, and other forms of multilingual access provided 
today throughout the United States. Similarly, arguments that the entry 
of Puerto Rico to the Union would have catastrophic national socio-
cultural effects belie the facts of Hawaii, New Mexico, Louisiana, 
Texas, Florida and numerous other territories' entry and full 
integration to the Union. It is evident that equality opponents, 
whether on the island or their allies on the mainland seek to project a 
`state-based' or `state-oriented' issue as some sort of a national 
problem.
    It must also be considered that these arguments bear little 
relevance to the issue of equality and the enfranchisement of four 
million United States citizens unempowered for more than a century. 
Though H.R. 2499 is really about the issue of self-determination for 
democratic equality, ancillary commentary and baseless arguments are 
foisted upon the public in opposition to statehood for the sole reason 
that Puerto Rico self-determination has both currency and validity. 
Misplaced arguments that refer to statehood without context, given the 
transparent neutrality that H.R. 2499 represents, underscore an intent 
tobfuscate the serious issues at stake.
    Economic arguments offered against statehood in debate of this 
legislation in the House proceedings were not germane to a self-
determination discussion, which is what H.R. 2499 is about. Section 936 
of the United States Tax Code continues to be frequently treated in 
depth in submitted statements in opposition to legislation that 
supports self-determination, even though Section 936 no longer exists 
in Puerto Rico. The U.S. Congress instituted a 10-year phase-out of 
Section 936 in the mid-1990s. It has been claimed that statehood for 
Puerto Rico would end the special tax status of Section 936, and 
eventuate ``still more unemployment in Puerto Rico [and] more costs to 
U.S. taxpayers.'' These projections from over a decade ago have been 
proven wildly incorrect and the facts speak for themselves: 1990 
unemployment figures offered as a basis to reject self-determination 
and future statehood by English First were 14.6 percent, with the 
projection that unemployment would effectively double to almost 30 
percent if Section 936 were to be repealed! Today, according to the 
April 2010 estimates by the Bureau of Labor Statistics, unemployment in 
Puerto Rico stands at 17.2 percent. An article written in 2005 by Gary 
Bingham for BusinessFacilities.com offers an alternative view of what 
really happened shortly after the Section 936 phase-out was set to 
conclude in 2005:

          Fortunately for Puerto Rico, the 936 phase-out did not kill 
        investment. Tax professionals did their research, the 
        government of Puerto Rico updated its incentives, and as a 
        result, Puerto Rico's GDP has grown over 70% since the phase 
        out of 936 began in 1996. During the same 10-year period, 
        outbound shipments increased 140% to over $55 billion, and 
        inbound shipments rose 104% to almost $40 billion. One reason 
        for this phenomenal growth is that although Section 936 will 
        sunset this December, another section of the IRC has found new 
        life. The section concerns Controlled Foreign Corporations 
        (CFCs). The section on CFCs had been part of the tax code for 
        years, but the benefits under Section 936 were so good that 
        many tax professionals simply ignored CFCs.''
            Life after 936

    Further, Bingham goes on to explain why the focus on IRS Section 
936, and tax incentives in general, was misdirected to begin with and 
what the real reasons are for U.S. companies relocating to Puerto Rico:

          Tax advantages, however, are not the primary reason companies 
        continue to invest in Puerto Rico. Companies selling into the 
        U.S. benefit from being within the U.S. Customs area, thus 
        providing easy access to the mainland U.S. market. Puerto Rico 
        operates in U.S. dollars, eliminating currency exchange risk. 
        Companies on the island also have U.S. legal protections, which 
        are particularly important for intellectual property 
        concerns.''
            Life after 936

    Though the ``Section 936 Argument'' offered by English First is 
irrelevant in the contemporary and is rendered moot by exposing it to 
reality, there is yet another argument that originates from its 
pronouncements that serve to confuse and obstruct the process of 
democratic self-determination for the people of Puerto Rico. The 
argument that a post-Puerto Rico statehood phase-out of Section 936 
would ``not survive Constitutional scrutiny at all,'' must also be 
viewed as an attempt to frustrate and confuse the process of self-
determination by sowing the seeds of doubt wherever possible, 
irrespective of how irrelevant or non-germane they are to the facts of 
the discussion.
    Both the U.S. Supreme Court and the Congress have addressed the 
issue of preferential tax treatments as part of a transitional 
statehood package before. This issue was exposed during previous 
hearings on the issue of Puerto Rico's territorial status. Hearings 
before the U.S. Senate Committee on Finance on November 14 and 15, 
1989, settled this question on the constitutionality of special tax 
treatments in relation to newly-admitted states. A quick look at the 
record regarding S.712 provides the answer. The Committee on Finance 
and the Committee on Energy and Natural Resources concurred on the view 
that:

          Congress has substantial authority under the territorial and 
        statehood clauses of the Constitution to provide for non-
        identical economic treatment under statehood if such treatment 
        is reasonable, transitional, and necessary. [The Uniformity 
        Clause notwithstanding!]
            S. Rep. No. 101-120, at 39.

    It is well-established in the Congressional Record that the 
Congress' powers to accept new states into the Union (Article IV, 
section 3, clauses 1 & 2) give it ``substantial'' powers over the issue 
of admission. Subsequently, the Uniformity Clause of the U.S. 
Constitution (Article I, section 8, clause 1) does not prohibit the 
Congress from designing solutions to what the U.S. Supreme Court has 
referred to as ``geographically-isolated problems,'' and in the context 
of the admission of new states, the Court's reading applies. As such, 
arguments by those who would thwart self-determination for Puerto 
Ricans are neither academically nor intellectually sustainable in light 
of factual reality.
    Again, it is our own view that H.R. 2499 has never been about 
congressionally-imposed statehood and that any thoughtful analysis of 
the legislation as presented debunks any notion to the contrary. 
Rather, it is about congressionally-sanctioned action on whether or not 
the four million American citizens in Puerto Rico deserve to have a say 
in their political, democratic, social, civic, and cultural future. 
America's values demand that the U.S. Congress remove the blight of 
Puerto Rico's unequal territorial status. Surely our American values 
and citizenship rights are important enough for the Congress to insist 
that four million citizens be provided a sanctioned choice amongst the 
territorial status quo or ``Commonwealth,'' statehood, and sovereign 
independence, with or without an association agreement. As with all 
such agreements, association would be unilaterally revocable should 
Congress or Puerto Rico decide to part ways, but that is a choice that 
cannot stand in the way of the principal goal of this legislation, 
which is offering a just and balanced opportunity to continue or end 
the undemocratic territorial status of Puerto Rico and the damage it 
wreaks on our national and international credibility.
    The U.S. Council for Puerto Rico Statehood does not stand alone in 
its desire to see our fellow citizens in Puerto Rico afforded the right 
and opportunity for self-determination and by extension the opportunity 
to free themselves of the indignity of second-class citizenship. The 
platforms of both the Democratic and Republican parties include clear 
and specific language that speaks to the issue of Puerto Rico self-
determination. The platforms' language is instructive and self-evident:

          We recognize that Congress has the final authority to define 
        the constitutionally valid options for Puerto Rico to achieve a 
        permanent non-territorial status with government by consent and 
        full enfranchisement.''
            Republican Party Platform 2008
          We believe that the people of Puerto Rico have the right to 
        the political status of their choice, obtained through a fair, 
        neutral, and democratic process of self-determination.''
            Democratic Party Platform 2008

    While, clearly, the expression of self-determination is a matter 
about the unenfranchised citizens of the island, and they alone should 
decide whether they wish to change the current territorial status, 
national support for self-determination for Puerto Rico has been 
documented and is long-standing amongst and across a myriad of 
community and state government organizations countrywide. Organizations 
expressing solidarity and common cause in the quest for Puerto Rican 
self-determination include: The League of United Latin American 
Citizens (LULAC); the U.S. Hispanic Chamber of Commerce; the National 
Governor's Association (NGA); Young Democrats of America; the 
Republican National Hispanic Assembly (RNHA); the National Association 
of Hispanic Publications; Vietnam Veterans of America; the National 
Hispanic Policy Forum; the Southern Governors Association; the American 
G.I. Forum; and the National Hispanic Caucus of State Legislators 
(NHCSL) amongst many others.
    In closing, as fellow Americans, we would like to once again 
express the following points:
   Puerto Rico has been a territory of the United States for 
        half the life of the Republic since the adoption of the United 
        States Constitution.
   Puerto Ricans are United States citizens who have been 
        forced to endure unequal citizenship and the current unequal 
        territorial status because Congress has failed to act 
        decisively and conclusively on this issue to date.
   Puerto Rican self-determination has never been provided 
        official sanction by the Congress that continues to exercise 
        sovereign authority over the territory and its four million 
        inhabitants without their sovereign input and franchise.
   Neither self-determination nor equality will be afforded to 
        our fellow citizens in Puerto Rico without definitive support 
        and a clear message from the Congress of the country to which 
        the overwhelming Puerto Rican majority's allegiance is 
        unquestionable.
   Successful passage of H.R. 2499 will for the first time 
        demonstrate congressional support for self-determination and 
        allow Puerto Rican voters to directly choose to maintain the 
        current territorial status or seek sovereignty.

    We thank the Committee for the opportunity to share these views and 
this statement, and hope that they assist in securing additional 
support for Puerto Rican self-determination and this critically 
important legislation.

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