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Trial without Jury in Guam, USA

Published online by Cambridge University Press:  26 June 2019

Katherine Unterman
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Abstract

This article adds to the growing literature about how the Supreme Court's decisions in the Insular Cases affected the residents of the U.S. territories. It focuses on the territory of Guam, which lacked juries in both criminal and civil trials until 1956–nearly sixty years after the island became a U.S. possession. Residents of Puerto Rico, Hawaii, and the Virgin Islands had limited jury trials, but Guam was left out due to its strategic military significance as well as racialized ideas about the capabilities of Chamorros, the native inhabitants of the island. This article recovers the struggle by Guamanians to gain jury trials. It argues that independence movements, like those in the Philippines and Puerto Rico, were not the only forms of resistance to American empire. Through petitions, court challenges, and other forms of activism, Guamanians pushed for jury trials as a way to assert local agency and engage in participatory democracy. For them, the Insular Cases were not just abstract rulings about whether the Constitution followed the flag; they deeply affected the administration of justice on the ground for ordinary Guamanians.

Type
Original Article
Information
Law and History Review , Volume 38 , Issue 4 , November 2020 , pp. 811 - 841
Copyright
Copyright © the American Society for Legal History, Inc. 2019

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Footnotes

She thanks the National Endowment for the Humanities, the Melbern G. Glasscock Center for Humanities Research, and the Texas A&M History Department for making her research on Guam possible. She also thanks the librarians and staff of the Richard F. Taitano Micronesian Area Research Center at the University of Guam, the participants in workshop colloquia at the Glasscock Center, and especially the anonymous reviewers of this article.

References

1. In this article, I use the term “Guamanian” to refer to the entire civilian population on Guam. Although the majority (roughly 90%) of Guamanians were Chamorus, there were also people of Anglo-American and Filipino descent living on Guam during the first half of the twentieth century. See Bettis, Leland, “Colonial Immigration in Guam,” in Issues in Guam's Political Development: The Chamorro Perspective (Agaña, Guam: The Political Status Education Coordinating Commission, 1996), 105Google Scholar. For a discussion of the use of the term “Guamanian” versus the use of the term “Chamorro,” see Cecilia C. T. Perez, “A Chamorro Re-Telling of ‘Liberation,’” in Issues in Guam's Political Development, 70; and Robert Underwood, “Guamanian, Local or Chamorro?” Pacific Daily News, January 20, 2017, A12. There are various spellings of the word “Chamoru,” with different political implications. I have chosen this spelling, rather than the traditionally used Spanish “Chamorro,” because it more closely reflects the orthography of the indigenous language. In September 2018, the CHamoru Language Commission recommended the spelling “CHamoru,” but this adaptation is not yet widespread.

2. It is important to point out that, at this time, the constitutional right to trial by jury on the mainland only applied in federal courts. The Sixth Amendment right to a jury in criminal trials was not extended to the states until Duncan v. Louisiana in 1968, and the Seventh Amendment right to a jury in civil suits has never been applied to the states. However, this does not mean that juries were rare in state courts. Throughout the twentieth century, all state constitutions provided for criminal petit juries in felony cases, and many in misdemeanor cases.

3. “Islanders Petition for Jury,” Guam Daily News, May 21, 1954, 1. Although this source claims that petitioners reached beyond the island, I have not found any record of this petition in mainland newspapers or the Congressional Record.

4. In recent years, mainstream constitutional lawyers and historians have become more aware of the Insular Cases. Two important conferences that helped bring attention to the Insular Cases occurred at Yale Law School in 1998 and at Harvard Law School in 2014, both resulting in edited volumes. See Burnett, Christina Duffy [Ponsa] and Marshall, Burke, eds., Foreign in a Domestic Sense: Puerto Rico, American Expansion, and the Constitution (Durham, NC: Duke University Press, 2001)CrossRefGoogle Scholar; and Neuman, Gerald L. and Brown-Nagin, Tomiko, eds., Reconsidering the Insular Cases: The Past and Future of the American Empire (Cambridge, MA: Harvard University Press, 2015)CrossRefGoogle Scholar.

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12. Preliminary Study with Reference to S. 1078, a Bill to Provide a Civil Government for the Island of Guam, and for other Purposes (January 1, 1947), 24.

13. I have not found any evidence of an independence movement on Guam during the 1950s. However, there is a small but active Guam independence movement today. See Michael Lujan Bevacqua, “What Independence for Guam Would Mean,” Pacific Daily News, September 23, 2016, A18.

14. Julian Go proposes a similar idea in “Anti-imperialism in the U.S. Territories after 1898,” in Empire's Twin: U.S. Anti-Imperialism from the Founding Era to the Age of Terrorism, ed. Tyrrell, Ian and Sexton, Jay (Ithaca, NY: Cornell University Press, 2015), 96Google Scholar.

15. “The Putty Case,” Guam Daily News, March 12, 1955, 2.

16. The Sixth Amendment was extended to the states in Duncan v. Louisiana, 391 U.S. 145 (1968).

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19. Hawaii v. Mankichi, 190 U.S. 197, 218 (1903).

20. Hawaii v. Mankichi, 219.

21. Dorr v. United States, 195 U.S. 138 (1904); and Balzac v. Porto Rico, 258 U.S. 298 (1922).

22. On the applicability of the Insular Cases to Guam, see Rogers, Robert F., Destiny's Landfall: A History of Guam (Honolulu: University of Hawai‘i Press, 2011), 118–19Google Scholar; and Hofschneider, Penelope Bordallo, A Campaign for Political Rights on the Island of Guam, 1899 to 1950 (Saipan: CNMI Division of Historic Preservation, 2001), 33–35Google Scholar.

23. Act of January 12, 1901, C.B. 1, in Acts and Resolves of the First Legislative Assembly of Porto Rico (San Juan: News Publishing Co., 1901), 1–2Google Scholar.

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26. Hawaiian Organic Act of 1900, section 83.

27. United States Congress, “An Act to provide a civil government for the Virgin Island of the United States,” June 22, 1936, section 31. Printed in United States Department of the Interior, General Information Regarding the Virgin Islands of the United States (Washington, DC: United States Government Printing Office, 1939), 17Google Scholar.

28. There is no single, clear answer as to why Congress chose to allow juries in certain territories but not in others. Hawaiians already had a jury system, whereas Puerto Ricans most likely received jury trials because anti-Puerto Rican racism was milder, Puerto Rico was nearer to the United States and more populous than Guam, and the Department of the Navy was not the ruling authority.

29. Quoted in Wilfley, Lebbeus R., “The New Philippine Judiciary,” North American Review 178 (1904): 734Google Scholar.

30. Kent, “The Jury and Empire,” 424–36.

31. See King v. Morton, 520 F.2d 1140 (D.C. Cir. 1975); King v. Andrus, 452 F.Supp 11 (D.D.C. 1977); Laughlin, Stanley K. Jr., “The Application of the Constitution in United States Territories: American Samoa, a Case Study,” University of Hawaii Law Review 2 (1980–81): 337–88Google Scholar; and Kruse, Line-Noue Memea, The Pacific Insular Case of American Samoa: Land Rights and Law in Unincorporated U.S. Territories (Cham: Palgrave Macmillan, 2018), 83CrossRefGoogle Scholar.

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33. Willis W. Bradley, Letters to the Times, New York Times, July 6, 1947, 80.

34. Hattori, Anne Perez, “Navy Blues: US Naval Rule on Guam and the Rough Road to Assimilation, 1898–1941,” Pacific Asia Inquiry 5 (2014): 13–30, 13Google Scholar. Also see Hattori, Anne Perez, Colonial Dis-Ease: U.S. Navy Health Policies and the Chamorros of Guam, 1898–1941 (Honolulu: University of Hawai‘i Press, 2004)CrossRefGoogle Scholar; Hattori, Anne Perez, “‘The Cry of the Little People of Guam’: American Colonialism, Medical Philanthropy, and the Susana Hospital for Chamorro Women, 1898–1941,” Health and History 8 (2006): 4–26CrossRefGoogle Scholar; and Hattori, Anne Perez, “Colonialism, Capitalism and Nationalism in the U.S. Navy's Expulsion of Guam's Spanish Catholic Priests, 1898–1900,” Journal of Pacific History 44 (2009): 281–302CrossRefGoogle Scholar.

35. Governor Richard P. Leary, General Order No. 11, January 19, 1900, in Report on the Island of Guam, June 1900 (Washington: Government Printing Office, 1900), 48Google Scholar.

36. George L. Dyer to Assistant Secretary of the Navy, June 21, 1904, in Annual Reports of the Navy Department for the Year 1904 (Washington, DC: Government Printing Office, 1904), 99–100Google Scholar.

37. Governor William E. Sewell to Assistant Secretary of the Navy, August 26, 1903, in Brief Extracts from Publications Concerning Guam, 1901–1904 (Washington, DC: Government Printing Office, 1905), 101Google Scholar.

38. Governor George L. Dyer to Assistant Secretary of the Navy, June 30, 1905, in Annual Report of the Naval Governor of the Island of Guam, 1905 (Washington: Government Printing Office, 1906), 4Google Scholar.

39. Robert F. Rogers, “Guam's Quest for Political Identity,” Pacific Studies 12 (1988), 51.

40. Carano, Paul and Sanchez, Pedro C., A Complete History of Guam (Rutland, VT: Charles E. Tuttle Co., 1964), 2Google Scholar.

41. Ibid., 185.

42. Ibid., 229; and Hofschneider, A Campaign for Political Rights on the Island of Guam, 56.

43. Laughlin, Stanley K. Jr., The Law of United States Territories and Affiliated Jurisdictions (Danvers, MA: Lawyers Cooperative Publishing, 1995), 126Google Scholar.

44. Balzac v. Porto Rico, 310.

45. Thompson, Guam and Its People, 84; and Sanchez, Justice on Guam, 11.

46. Thompson, Laura, “Crisis on Guam,” Far Eastern Quarterly 6 (1946): 9CrossRefGoogle Scholar.

47. Quoted in Hofschneider, A Campaign for Political Rights on the Island of Guam, 48–49.

48. On the Guamanian petitions for citizenship, see “Chamorros Make Plea for U.S. Citizenship,” Guam Recorder (July 1925): 131–33; Anne Perez Hattori, “Righting Civil Wrongs: Guam Congress Walkout of 1949,” in Issues in Guam's Political Development, 58. On the concept of noncitizen United States nationals, see Christina Duffy Burnett [Ponsa], “Empire and the Transformation of Citizenship,” in Colonial Crucible, 332–41.

49. Annual Report of the Governor of Guam (Willis W. Bradley), 1930, in Annual Reports of the Governors of Guam, 1901–41, microfilm MF-11075, no. 181, roll 2, National Archives, 113.

50. Hattori, “Righting Civil Wrongs,” 59.

51. Testimony of Bordallo, B.J., in Citizenship for Residents of Guam: Hearings, April 9, 10, 16, and June 9, 1937 (Washington, DC: Government Printing Office, 1937), 96Google Scholar.

52. “Guam Delegate Admits Defeat on Citizenship,” The Washington Post, July 2, 1937, 6.

53. Testimony of Bordallo, Citizenship for Residents of Guam, 8.

54. Ibid., 10; emphasis added.

55. Ibid., 13.

56. Testimony of F. B. Leon Guerrero, Citizenship for Residents of Guam, 35.

57. On the Japanese occupation, see Carano and Sanchez, A Complete History of Guam, 273–89, 293; and Rogers, Destiny's Landfall, 152–69.

58. Maga, Timothy P., Defending Paradise: The United States and Guam, 1898–1950 (New York: Garland Publishing, 1988), 197Google Scholar.

59. Hattori, Anne Perez, “Guardians of Our Soil: Indigenous Responses to Post-World War II Military Land Appropriation on Guam,” in Farms, Firms, and Runways: Perspectives on U.S. Military Bases in the Western Pacific, ed. Eve Armentrout Ma, L. (Chicago: Imprint Publications, 2001), 187, 190–91Google Scholar. On the Tumon Beach controversy, see Hofschneider, A Campaign for Political Rights on the Island of Guam, 131–33. For an insightful analysis of Chamorus’ relationship with their land, see Michael F. Phillips, “Land,” in Issues in Guam's Political Development, 2–16.

60. “Navy to Buy Land,” Guam Echo, May 29, 1948, 1; Hattori, “Guardians of Our Soil,” 193.

61. Hofschneider, A Campaign for Political Rights on the Island of Guam, 129–30.

62. Hearing before the House Subcommittee on Territorial and Insular Affairs, 92nd Congress, 2nd Session, on H.R. 5540 to Amend the Organic Act of Guam (September 14, 1972), 44–45 (hereafter Hearing on H.R. 5540).

63. Ibid., 24.

64. District Court of Guam, Oral Interview of Mr. Joaquin C. Arriola, January 20, 2006, 7 (hereafter Arriola Interview).

65. Hearing on H.R. 5540, 35.

66. A Guamanian, Letters to the Times, “Government of Guam,” New York Times, July 16, 1947, 22.

67. Norris Poulson, Letters to the Times, New York Times, July 19, 1947, 12.

68. Maga, Defending Paradise, 198.

69. Hattori, “Guardians of Our Soil,” 196.

70. Hattori, “Righting Civil Wrongs,” 57–58; “Guam Assembly Quits,” New York Times, March 6, 1949, 52; and “Guam Rebels at New Navy ‘Rule,’” The Washington Post, April 3, 1949, B3.

71. General Assembly resolution 66 (I), December 14, 1946. To this day, Guam remains on the United Nations list of “non-self-governing territories.”

72. “Self-Government for Guam,” Letters to the Times, New York Times, March 9, 1949, 24.

73. Statement by Carlton Skinner, Governor of Guam, before a Senate Interior Affairs Subcommittee considering Organic Legislation for Guam, April 19, 1950. Records of the Office of Territories, Record Group 126, Entry 1, File 9-3-1, Box 530, National Archives and Records Administration 2, College Park, MD.

74. Studies that treat the Organic Act as a pivotal, positive victory for democracy on Guam include Hofschneider, A Campaign for Political Rights on the Island of Guam; and Cogan, Doloris Coulter, We Fought the Navy and Won: Guam's Quest for Democracy (Honolulu: University of Hawai‘i Press, 2008)CrossRefGoogle Scholar.

75. Statham, E. Robert Jr., Colonial Constitutionalism: The Tyranny of United States’ Offshore Territorial Policy and Relations (Lanham, MD: Lexington Books, 2002), 69Google Scholar.

76. “Providing a Civil Government for Guam,” Senate Report No. 2019, 81st Congress, 2nd Session, July 20, 1950, 13.

77. Navy, United States, Report on Guam, 1899–1950 (Washington, DC: United States Government Printing Office, 1951), 18Google Scholar.

78. Testimony of Representative Willis W. Bradley of California, former Governor of Guam, 1929–31, Preliminary Study with Reference to S. 1078, a Bill to Provide a Civil Government for the Island of Guam, and for other Purposes, January 1, 1947, 15.

79. Hearing, Legislation on Government and Citizenship Regulations for Territories and Possessions of the United States (May 28, 1947), 123.

80. Ibid., 178–80.

81. Harold Ickes, in Cogan, We Fought the Navy and Won, 198–99. Also printed as “The Navy at Its Worst,” Collier's, August 31, 1946, 23, 67.

82. Statement of Harold L. Ickes, formerly Secretary of the Interior, Washington, DC, in Hearing, Legislation on Government and Citizenship Regulations for Territories and Possessions of the United States (May 28, 1947), 251.

83. Testimony of Laura Thompson, Civil Government for Guam, January 1, 1947 (Preliminary Study with Reference to S. 1078, a Bill to Provide a Civil Government for the Island of Guam, and for other Purposes), 18.

84. The activities of the Institute of Ethnic Affairs are described in detail in Cogan, We Fought the Navy and Won.

85. Advertisement for the Guam Democratic Party published in Guam Daily News, June 14, 1950, 4.

86. “Rights of Citizens,” Guam Daily News, May 22, 1954, 2.

87. “The Putty Case,” Guam Daily News, March 12, 1955, 2.

88. Congressional Record—House, 82nd Congress, 2nd Session, May 21, 1952, 5700–701.

89. “Rights of Citizens,” Guam Daily News, May 22, 1954, 2.

90. Congressional Record—House, 82nd Congress, 2nd Session, May 21, 1952, 5700–701.

91. “Islanders Petition for Jury,” Guam Daily News, May 21, 1954, 1.

92. “Jury Bill Legality to Be Aired,” Guam Daily News, May 14, 1954, 1.

93. Comments of Judge Paul D. Shriver, April 1959, in Lowe, Richard Barrett, Problems in Paradise: The View from Government House (New York: Pageant Press, 1967), 386Google Scholar.

94. “Solons Pass Jury Trial Bill,” Guam Daily News, July 8, 1955, 2. In an oral interview conducted later in Arriola's life, he changed his mind about the need for jury trials.

95. Cruz, “The Constitutional and Legal History of Guam,” 105; and Carano and Sanchez, A Complete History of Guam, 384.

96. Cases include United States v. Seagraves, 100 F. Supp. 424 (D. Guam 1951); United States v. Pugh, 106 F.Supp. 209 (D. Guam 1952); Hatchett v. Government of Guam, 212 F.2d 767 (9th Cir. 1954), cert. denied 75 S.Ct. 17, 348 U.S. 801; Pugh v. United States, 212 F.2d 761 (9th Cir. 1954); Putty v. United States, 220 F.2d 473 (9th Cir. 1955), cert. denied 350 U.S. 321; Pennington v. Government of Guam, 228 F.2d 892 (9th Cir. 1955); and Mafnas v. Government of Guam, 228 F.2d 283 (9th Cir. 1955).

97. 1940 U.S. Federal Census, on Ancestry.com.

98. Arriola Interview, 4. Arriola lists three Chamoru graduates of mainland law schools who were practicing on Guam by 1953: Cristobal Duenas, Carlos Taitano, and himself.

99. Hatchett v. Government of Guam, 212 F.2d 767 (9th Cir. 1954), 769. On the Hatchett case, see Catterlin, Charles F., “Comment: Procedural Right to Jury Trial in an Unincorporated Territory,” Hastings Law Journal 6 (1955): 197–211Google Scholar; Carano and Sanchez, A Complete History of Guam, 389–90; Laughlin, The Law of United States Territories and Affiliated Jurisdictions, 412.

100. Hatchett v. Government of Guam, 777, italics in original.

101. Statement of A. M. Edwards, Assistant Solicitor, Office of the Territories, Department of the Interior, May 11, 1954, 4.

102. Amending Section 22 of the Organic Act of Guam, July 29, 1954, 2.

103. Saylor Bill, H.R. 8634, 83d Cong., 2d sess. (August 27, 1954).

104. Putty v. United States, 220 F.2d 473 (9th Cir. 1955), cert. denied 350 U.S. 321 (1955); and Stevens, Russell L., Guam U.S.A.: Birth of a Territory (Honolulu: Tongg Publishing, 1953), 103–5Google Scholar.

105. “Putty Conviction, Sentence Vacated,” Guam Daily News, April 15, 1955, 1–2.

106. United States of America v. Edward D. Putty, Brief in Opposition to Petition for Writ of Certiorari (1954), 6.

107. “The Putty Case,” Guam Daily News, March 12, 1955, 2.

108. “Island Brevities: GBA Emergency Meeting,” Guam Daily News, May 27, 1955, 3.

109. Public Law 42, Third Guam Legislature, July 6, 1955, at Guam Public Library. Most histories of Guam do not mention this historic piece of legislation, but Carano and Sanchez discuss it in A Complete History of Guam, 366, 380, 390.

110. “First Trial by Jury Here Set in Case of 2 Statesiders Accused of Burglary,” Guam Daily News, November 5, 1955, 1.

111. “Solons Pass Jury Trial Bill,” Guam Daily News, July 8, 1955, 1–2.

112. There is no constitutional right to jury trial in federal condemnation proceedings, even within the states. See Bauman v. Ross, 167 U.S. 548 (1897), and later, United States v. Reynolds, 397 U.S. 14 (1970). Therefore, a jury trial right in condemnation proceedings in Guam could only be statutory.

113. “Solons Pass Jury Trial Bill,” Guam Daily News, July 8, 1955, 1–2.

114. Ibid.

115. “The Important Thing,” Guam Daily News, July 8, 1955, 4.

116. “First Trial by Jury,” Guam Daily News, February 21, 1956, 4.

117. “First Jury Verdict: ‘Not Guilty,’” Guam Daily News, February 22, 1956, 1–2.

118. “4 Men Found Guilty of Theft of Gov't. Property,” Guam Daily News, March 7, 1956, 1.

119. Comments of Judge Paul D. Shriver, April 1959, in Lowe, Problems in Paradise, 386.

120. “First Condemnation Case Set for Jury Trial,” Guam Daily News, March 17, 1956, 1; “Property Seizure Case before Jury Continued,” Guam Daily News, March 20, 1956, 1; “Jury Verdict Awaited on Condemnation Case,” Guam Daily News, March 21, 1956, 1; and “Jurors Decide on $7 Rate for Paseo Lands,” Guam Daily News, March 22, 1956, 1.

121. “The Paseo Litigation,” Guam Daily News, March 22, 1956, 2.

122. Hearing on H.R. 5540, 26.

123. Arriola Interview, 8.

124. “Condemned Lands’ Value Is Disputed in Jury Trial,” Guam Daily News, March 14, 1957, 1; and “Land Values Set at $3.50–$5.50,” Guam Daily News, March 15, 1957, 1.

125. “Jury Inspects Property in Land Price Litigations,” Guam Daily News, May 7, 1957, 1; and “Jury Decides Condemned Lands Worth,” Guam Daily News, May 8, 1957, 1.

126. John A. Bohn Papers, MSS 730, Box 30, Folder 8, MARC.

127. Public Law 9–256, Ninth Guam Legislature, January 8, 1969.

128. Hearings, Reorganization of the Judicial System of Guam, July 31, 1975, Statement of Charles H. Troutman, Attorney General, Territory of Guam, 13.