Self Determination

An Organic Act is a legal framework of government passed by Congress that organizes the way in which a Territory like the United States Virgin Islands or the Virgin Islands, is governed. Two Organic Acts were passed for the Virgin Islands. The first was approved in 1936. The second, known as the Revised Organic Act, was passed in 1954. It serves as our constitution and such a framework is expected to evolve.

A constitution is a legal framework of government. In the US experience, it is a written document that is crafted and approved by the electorate. It determines how laws are passed, how they are carried into effect, and how disputes about their meaning and application are resolved. It lays out the framework or structure of government such as the branches of the government. In the US model, there are three separate coequal entities. In the case of the U.S Constitution, Federal Laws are passed by the legislative branch, the Congress, which is composed of two bodies namely, the House of Representatives and the Senate. They are carried into effect, "executed" by the President and the Executive Branch. Disputes about their meaning and application are resolved by the Judicial Branch. Changes to the constitution can be made following a set process (amendments). Similarly, the rights of citizens are protected by specific provisions, such as the guarantee of the freedom of speech.

The USVI is an organized unincorporated territory of the United States. This means that Congress has very broad power over all aspects of our political life, including the basic framework of government. The only limit is that fundamental human rights cannot be violated. If we were a state, we would be governed by a state constitution that its citizens had drafted and approved, without consultation with Congress, and may change without its approval.

Prior to the passage of the Organic Act of 1936, the Virgin Islands had been governed by the Danish Colonial Law of 1906. It was in effect when the Virgin Islands was transferred in 1917. General administration was placed in the hands of the Navy until transferred to the Department of the Interior in 1931. The major political impact of the Organic Act of 1936 was to establish a local legislature - with branches or municipal councils on St. Thomas-St. John and St. Croix. Council members were chosen by all U.S. Citizens (male) over 21 years, who were literate in English. This broadened local government authority and led to the formation of popular-based political parties and leadership.

The major political change the Revised Organic Act effected was to abolish the separate municipal councils and consolidate power in a single body/unicameral legislature (the Senate) based in the capital, Charlotte Amalie, St. Thomas, and to remove the English Language restriction on voting. It sought to provide a better financial footing for the islands by such measures as returning federal income taxes to the local treasury. It also gave the new legislature the power to expand the judicial branch.

An organic act is a living document and the Revised Organic Act of 1954 was amended several times to expand and reform the framework of government. All reforms were directly tied to political pressure and lobbying from the Virgin Islands. Major reforms include: The Elective Governors Act of 1968 which provided for an elected Governor and Lieutenant Governor and allowed the expansion of the US Constitution. Congress also passed Public Law 98-454 which allowed the Judicial Branch to acquire greater legal power and jurisdiction over local legal matters.

Five attempts have been made to draft a local constitution. The first two attempts failed because they were not authorized by Congress. The third and fourth constitutional drafts did not win majority approval in local referenda. The fifth effort never reached the final stage of submission to a referendum. This was largely occasioned by disagreement about the constitutionality of provisions relating to native rights, US sovereignty, and the supremacy of Federal Laws.

In the November 3, 2020 election, a referendum on supporting the adoption of the Revised Organic Act of 1954 or portions of it - to serve as the basis of a new Territorial Constitution was supported. In this referendum, 7,745 voters voted Yes, and 2,840 voters voted No. Its mandate would be simply to adopt the 1954 Revised Organic Act as the local constitution or portions of the Organic Act with its amendments. Simultaneously, this mandate would end the need for prior congressional approval of future changes. However, the approach itself would require congressional acceptance, and any amendments would still have to conform to Federal law. Notably, Congress would retain its ultimate authority to reject any amendments in the unlikely event it wished to do so.

The legal basis for the Act is the broad authority Congress exercises over unincorporated territories like the USVI. That power derives from a series of Supreme Court Cases decided at the turn of the 20th century (the Insular Cases). They were rooted in doctrines of racial superiority which were popular at the time but are now thoroughly discredited. However, these doctrines remain the controlling legal precedent.

In addition, the Congress that exercises this power contains no USVI representative elected by the people of the USVI - that has the same full voting power as other House of Representative members. Delegates to Congress only have partial voting rights which increase or decrease based on the party that is in power. Virgin Islanders do not have the right to vote for the President. Their lack of presidential voting power violates the basic democratic principle that the authority of government rests on the consent of the governed.

Self-government is only possible if the citizens of a society are informed about the nature of the political institutions in which they operate, they are expected to obey, and in which they are educated. The 1954 Revised Organic Act is the basic framework within which all political activity in the USVI takes place. Civic education requires that it be both widely available and understood.

The process for the adoption of the constitution is over. There was a window of opportunity for addressing the changes, and it ended.

Adopting a constitution does not necessarily mean a territory has made any substantive change in political status and/or self-determination. However, in the USVI, our experience in building an autonomous or self-governing society has been that we maximized our rights and privileges as a US Territory. For us to meet UN standards, there must be a referendum that provides the options of integration as a state, free association, or independence.