Topics in Native Hawaiian Law – Fall 2013, Prof. Sproat
Final Paper – December 20, 2013
Oliver Manglona

Affording the Commonwealth of the Northern Mariana Island’s Groundwater Constitutional Protection: A Contextual Review of Groundwater Use and Management

I. Introduction
Chamorro elders often speak about the abundance of freshwater when they were growing up. They established personal relationships with these waters and gave them Chamorro names. Uncle Ben from Songsong Village, Rota recalled one particular spring, which he called “Agaton.” According to Uncle Ben, “Agaton” came from Bobo Mames. Bobo in Chamorro means, “spring” and Mames means, “sweet.” Thus, Agaton refers to the “Sweet Spring.” Uncle Ben recalled that Agaton would flow directly behind his house, which fed the marshland in his parent’s backyard. He reminisced about how he and his younger brothers would often go to the marshland at night to pick Ayuyu (Coconut Crab). He then lamented, “Oh, how I miss those days.” Uncle Ben also shared that in the early 1940s almost everyone dug wells. He noted that his father and mother would walk several miles to Songsong Village to fetch pails of water from a dug-up well that had supplied the entire village before European contact, as well as during the Spanish, German, and Japanese occupations. He described it as “fresh,” “cold,” and “sweet.” He again lamented, “Oh, how I miss those days.” Uncle Ben’s recollections raise concerns regarding the future of freshwater in the CNMI and groundwater use and management in particular. Almost four decades after the CNMI adopted its Constitution, it still does not recognize or protect traditional and customary Chamorro rights and practices specific to groundwater. As the CNMI proposes an amendment to its blood quantum requirement, it should consider more stringent protections for its groundwater so that future Chamorro generations can participate in the long-standing tradition of groundwater management that was a cornerstone of ancient Chamorro communities. Similar to the custom and practices utilized by Native Hawaiians with respect to their freshwater, Chamorros had a similarly intricate relationship. Unlike the CNMI, however, the State of Hawaiʻi has elevated the preservation of these resources to a constitutional mandate.
To what extent will the CNMI’s current laws protect traditional and customary Chamorro practices regarding groundwater use and management? More specifically, what contextual factors are at stake if the CNMI fails to amend its constitution to address this issue?
II. Background Doctor Rebecca Stephenson of the University of Guam’s Water Resources Research Center completed one of the most comprehensive studies ever done on freshwater use and customs in the CNMI. Stephenson’s report focused on the ethno-historic significance of groundwater uses on the island of Rota. She found that a considerable number of intact “latte village sites” still exist on Rota and nowhere else in the Marianas chain, except for Guam. Stephenson’s research on Rota’s Chamorro settlement patterns serves a complimentary purpose: to understand how ancient Chamorros throughout the CNMI use and manage groundwater resources.
A. Land Tenure System By analyzing the locations of several latte sites on Rota, Stephenson concluded that ancient Chamorros settlements were arranged to maximize the allocation of freshwater to all the villages. Stephenson research yielded an interesting discovery:
There were three distinct classes – nobles (matua), an elite of high-ranking commoners (atchaot), and low-ranking commoners (mangatchang). The precise definitions of these classes are not clear, but is quite likely that rank and class were determined by clan affiliation and land-ownership – the nobles and elite were landholders, and the commoners lived and worked on land controlled by one of the other classes. This discovery is especially illuminating because it closely resembles the land system of ancient Hawaiʻi, which revolved around the traditional division known as the ahupua‘a. Stephenson found that “the major islands of the Marianas were traditionally divided into a number of relatively autonomous districts under the control of the highest ranking chief (maga or maga-lahe).” This land tenure system created a workable and cohesive arrangement that allowed each district to share in the limited resources of the island. In a comparative study on Guam, Stephenson noted a land tenure system similar to Rota. In that study, she posited that it “is possible to speculate that sites with minimal water had to arrange some sort of reciprocal ties with sites that did have water.” Stephenson’s research on the ancient Chamorro land system of Guam and Rota propels an interesting proposition: that the ancient Chamorro land division, similar to Hawai‘i’s ahupua‘a system, recognized Chamorro traditional or customary gathering rights of freshwater.
B. Chamorro Traditional and Customary Gathering Rights to Groundwater
The inhabitants (of Rota) drink nothing but the water of a natural well a dozen places from the seashore on the north-east and about a league and half from the city. It is two feet and a half in diameter and four feet and a half deep. I thought it a little brackish, though it was deemed good by my comrades.

Stephenson’s expansive research on freshwater customs on Rota took into account three relevant histories in the CNMI: Spanish contact, German occupation, and Japanese administration of the islands. Stephenson found that despite its colonial past, Rota had developed and adapted to techniques that provided sufficient freshwater resources to meet the island’s consumption and utilization needs. One of those techniques, which was detailed in literature catalogued by each colonial administrators, was the use and management of the island’s groundwater resources. 1. Spanish Period The first encounter of traditional and customary Chamorro practices pertaining to groundwater was observed in the late 1600s when Spanish missionaries started arriving on Rota. The Spanish missionaries observed that Rota Chamorros relied heavily on groundwater, despite the existence of one stream on the southern side of the island. Stephenson found this account interesting and implicated that “the few streams of running fresh water were not considered as important factors in establishing the placement of village sites.” Although Stephenson contended that freshwater stream use had no direct correlation with the location of Chamorro settlements, her research indicated that the utilization of well water might account for settlement patterns. Indeed, Stephenson explained that well water was sufficient to furnish water to the people of the villages. As one Spanish sailor noted: Three wells furnish water to the people of the villages; two of them are artificial, and the water detestable: the third, which is natural, afford better…. On the east coast at five miles from the villages, there is a rivulet of very good water…. Based on this account, it was likely that streams were used mostly for the irrigation and cultivation of rice terrace fields, while groundwater sustained village life “because it was sufficient to meet the requirements of freshwater for Rota’s population.” Thus, there is a strong evidentiary backing that groundwater use and management was a lifeline for ancient Chamorros. In addition to this finding, the ancient Chamorro land system that created the concept of reciprocity allowed for maximum enjoyment of groundwater that could be used by people from other districts. Stephenson identified several communal wells that served this purpose. One in particular, was an old Chamorro well that had been discovered nearby an ancient village in Songsong, called the Palasyo. These discoveries, according to Stephenson, were crucial to understanding traditional Chamorro practices of freshwater consumption. 2. German Occupation & Japanese Administration The German occupation of Rota was the shortest lived among the three colonizing powers and had the least impact on groundwater use and management. Stephenson credited this lack of interference with Germany adopting the Spanish’s system of local administration. Although Germany was responsible for introducing private and public land ownership into the CNMI, which arguably destroyed the communal land system of pre-European contact era, not much changed for groundwater use and management during this time until the Japanese gained a foothold on the island. The Japanese Administration of the CNMI transformed the islands into a regional supplier of sugarcane and rice. Japan was particularly interested in Rota because it had abundant freshwater resources. Because Rota’s freshwater resources were sufficient to sustain an agricultural economy, Japan expounded much of its capital in improving the island’s infrastructure. To supply water to irrigate the rice and sugarcane fields in Sabana Mountain (Songsong Village, Rota), the Japanese constructed extensive water pipelines from the Matanhanum water cave. These pipelines were later extended in the early 1940s to service the entire island. In effect, the construction of water pipelines destroyed the traditional use of wells and other groundwater sources. Today, Rota still uses and maintains these pipelines to provide water throughout the island. Currently, the water supplied by these pipelines is sufficient to satisfy the entire island’s water needs. According to Charles A. Manglona, the Deputy Director of the Commonwealth Utilities Corporation (“CUC”), however, Rota’s ability to rely on these pipelines is likely to change if ever the population of Rota begins to grow. Thus, Rota as well as the rest of the CNMI needs to start searching for alternative freshwater resources. Manglona recommended that the CNMI begin revitalizing its groundwater resources and return to using well water. He also suggested that extra protections be given to groundwater resources in case the cave water becomes inadequate. Because much of the CNMI’s traditional and customary use of groundwater ended with the Japanese administration of the islands, the importance of groundwater use and management had been largely forgotten. As a consequence, the CNMI Constitution does not protect traditional and customary rights to groundwater, or recognize a public trust purpose for the protection of these rights. III. The Dominant Legal Framework – CNMI’s Constitution Two Commonwealth Constitution provisions make reference to water. These provisions, however, do not adequately protect traditional and customary practices regarding freshwater. Moreover, they do not explicitly reference the public trust doctrine. A. “The Right to a Clean and Healthful Environment in . . . Water….” Article I, section 9 is the only Commonwealth Constitution provision that specifically references water. Article I, section 9 mandates that “[e]ach person has the right to a clean and healthful public environment in all areas, including the land, air, and water.” This ultimately created the CNMI Department of Quality (“DEQ”) pursuant to Public Law 3-23. DEQ’s primary mission is to “protect public health and the environment through the implementation and maintenance of programs to eliminate threats to the CNMI’s land, air, and water.” DEQ must also “assure that necessary or desirable economic and social development proceeds in an environmentally responsible manner in order to promote the highest attainable quality of life for present and future generations.” Although this policy references public trust principles, i.e. “for present and future generations,” it has lost much of its force since its enactment in 1982. Jose Kaipat, the Manager of the Safe Drinking Water Act and a DEQ official, contended that DEQ’s current policies focus on the quality of marine waters and lakes, and that freshwater resources such as streams and groundwater have been treated very differently. Additionally, Kaipat acknowledged that there are currently no regulations in the CNMI that protect freshwater resources. The lack of regulations for freshwater resources such as streams and groundwater is due in part to confusion regarding how these waters are defined. Kaipat admitted that CNMI streams have not yet been characterized as surface water, but are considered groundwater sources; and that groundwater is not “water” for policy purposes, but is a mineral resource. By classifying groundwater as minerals, regulatory administration of groundwater use and management is lacking in the CNMI. This confusion, according to Kaipat, has already proven problematic. Kaipat pointed to a current problem Koblerville residents are facing. Kaipat noted that several areas in Koblerville had been leased to foreign investment companies who have established thriving businesses in the area. By leasing these public lands to foreign investors, Kaipat argued, foreign companies are allowed to charge fees for these areas, including for water. Koblerville residents must pay for water consumption that would not have been necessary if significant protections of freshwater use customs were constitutionally mandated. Kaipat urged that the CNMI should realize what this would mean for its future. He suggested that the current law should be amended to clarify the government’s obligation in protecting freshwater use customs in the CNMI. B. Places and Things of Cultural and Historical Significance Finally, Article XIV, section 3 of the Commonwealth Constitution provides some meaning behind the traditional and customary rights of the CNMI. This provision, although it could be read to protect freshwater rights, has been fairly limited in its interpretation. Article XIV, section 3 declares that “[p]laces of importance to the culture, traditions and history of the people of the Northern Mariana Islands shall be protected and preserved and public access to these places shall be maintained by law.” It further mandates that “[a]rtifacts and other things of cultural historical significance shall be protected, preserved and maintained in the Commonwealth as provided by law.” Despite strong language: “shall be protected and preserved and public access to these places shall be maintained by law,” article XIV, section 7 was neither meant to incorporate public trust principles, nor was it enacted to protect traditional and customary Chamorro rights of freshwater use. The Historic Preservation Office (“HPO”), which was created by Public Law 3-39 pursuant to article XIV, section 7, is the agency responsible for implementing the requirements of article XIV, section 3 of the Commonwealth Constitution. Part of its mission is to “ensure the identification and protection of significant archaeological, historic, and cultural resources in the Commonwealth.” Although the plain language of Article XIV, section 7 could be read to protect groundwater resources, this provision, according to HPO’s chief coordinator, Diego Camacho, does not embrace the unique history of ancient Chamorro freshwater use custom. According to Camacho, HPO’s governing authority is limited to historic, archeological, and cultural places and not water. Although Camacho mentioned that HPO identified latte sites near groundwater sites, there is still no preservation in place for groundwater resources. Additionally, HPO has not established regulations for the protection of these resources. Despite the lack of regulations by HPO, Camacho acknowledged that he was awaiting a certified archeologist to determine whether the existing wells in the CNMI should be identified as prehistoric sites for the purpose of preservation. Camacho, however, is doubtful that article XIV, section 3 was meant to protect or regulate freshwater use. In spite of his contentions regarding article XIV, section 3, Camacho acknowledged that the lack of regulation for groundwater use and management is upsetting. Ironically, he pointed to CNMI’s history of groundwater use and mentioned that ancient Chamorros regarded groundwater as a precious resource because it supported the livelihood of their people. Camacho suggested that the CNMI government do more to protect its groundwater resources, such as giving HPO the authority to protect historical practices. Although the Commonwealth Constitution provisions make some reference to water, these provisions missed the mark and have not protected and regulated traditional and customary Chamorro practices of groundwater use and management. Despite the provisions potential to provide greater protection for these rights, there has been no effort to recognize the historical significance of freshwater customs in the CNMI. Due to the ineffectiveness of Article I, section 7 and Article XIV, section 3, the CNMI risks losing much of its control in the maintenance of its groundwater resources if more foreign investors set up shop in the CNMI. This will place freshwater management in the hands of foreign individuals to the detriment of the Chamorro people. IV. Contextual Facts: Who Benefits? Who is Harmed? A. Restriction of Land Alienation – CNMI’s Blood Quantum Requirement When the CNMI sought a permanent legal relationship with the United States, “land alienation restriction to persons of Northern Marianas descent [NMD] was critical in adopting the Covenant.” The Covenant negotiations between the CNMI and the U.S. focused primarily on CNMI’s right to regulate and enforce land use and ownership. The “make-or-break deal” which was presented by the Marianas Political Status Commission (MPSC) in the negotiation rounds, “objected to the extensive amount of land the United States desired.” “In an effort to accommodate the interests of both parties, Section 805 of the Covenant included the fundamental land alienation provision.” The CNMI Constitution was later enacted with Section 805 in mind. Article XII, section 1 of the CNMI Constitution provides: “[T]he acquisition of permanent and long-term interests in real property within the Commonwealth shall be restricted to persons of Northern Marianas descent.” Further, it defines NMD’s as U.S. citizens or nationals who “(1) is at least twenty-five percent Northern Marianas Chamorro or Northern Marianas Carolinian blood;” and were (2) “born or domiciled in the CNMI by 1950 and a [Trust Territory of the Pacific Island] citizen before the termination of the Trusteeship.” Additionally, it limits a foreign corporation’s leasehold interest in private land to fifty-five years. Article XII of the CNMI Constitution captures Section 805’s goal of “protect[ing] the people against exploitations[,] promot[ing] their economic advancement and self sufficiency[,] and recogniz[ing] the importance of ownership of land for the culture and traditions of the people of the CNMI.” Thus, when Article XII was enacted in 1978, the drafters of the Constitution contemplated that the law would assume the following: “(1) there [will be] no threat of exploitation or cultural dislocation when Northern Marianas persons sell their land to ambitious or unscrupulous persons who happen to be of the correct Northern Marianas ancestry; (2) all outsider land purchasers constitute a threat; (3) and the 55-year alienation do not constitute a threat.” B. Amending the Blood Quantum and Leasehold Interest – Who Benefits? Fast-forward 35 years, Article XII has come under fire as CNMI legislators seek to amend its provision restricting land ownership. The first legislation of its kind, Senate Legislative Initiative 17-10 (S.L.I 17-10) was the first senate-sponsored initiative that challenged Article XII’s land alienation restriction provisions. This initiative began Article XII’s ominous tract in the succeeding years leaving a trail of uncertainty as to its fate. When S.L.I. 17-10 was introduced in June of 2011, the CNMI senators demanded that Article XII be repealed in its entirety. Although this initiative was ultimately killed by a vote one of eight present senators voting “yes,” this initiative put Article XII on shaky ground. In 2013, Article XII again made headlines when the CNMI legislature introduced House Legislative Initiative 18-1 (H.L.I. 18-1). However, instead of repealing Article XII in its entirety, H.L.I. 18-1 amended Article XII’s definition of NMD. As proposed, H.L.I. 18-1, “allow[s] any U.S. citizen with at least some degree of Chamorro or Carolinian blood to be considered a person of Northern Marianas descent and can therefor own land in the CNMI.” This amendment now rests with voters to decide whether to approve or disprove the proposed amendment to Article XII in the upcoming general election. In addition to the blood quantum amendment, the House of Representative introduced an initiative in 2010, maximizing the private land lease from the current 55 years to 99 years. The purpose of this amendment was investor-focused as one legislator commented: “Article 12 may be considered in terms of encouraging and attracting investors through leasehold agreements[;] increasing the lease-term in Article 12, Section 3 of the NMI Constitution from 55- to 99-year leaseholds for non-NMD investors [will] help stimulate the economy by attracting more investors.” Although this amendment had been struck down, the House of Representative has proposed a similar amendment to the leaseholds for public lands. House Legislative Initiative 18-5 (H.L.I. 18-5) was introduced in April 2, 2013, which seeks to amend Article XI, Section 5(c). Article XI’s current provision sets the leasing term of public lands to 25 years. The amendment would increase the lease terms to 99 years including renewal rights. Again, this amendment was introduced for the purpose of attracting investment and financial institutions to finance major projects in the CNMI. Although this initiative has not yet been adopted by the CNMI legislature, the growing support to amend CNMI’s current land alienation restriction laws have been promulgated with foreign investment companies in mind. As one commenter noted: [T]he excitement of expanding economic operations to the [CNMI is] short-lived due to Article XII [which could] be described as a drag and anchor holding back any meaningful and long-term economic growth in the commonwealth…. [T]he framers of the local Constitution had the best interest in mind and the provisions were put in place to facilitate rather than impede economic development. But that was then, at a time far different from the competitive and international business environment our islands face today. C. Who is Harmed? Despite the legislatures’ approval to amend Article XII, many Chamorros worry about the possible implications the amendments will have on their future. Minority legislators share this resentment. Former senator Henry San Nicolas, in his interview with Saipan Tribune, professed that Article XII should be retained to protect future generations: “As a parent, I feel that Article 12 will protect future generations. Unlike other countries with big islands, the CNMI only has small islands. If we allow non-NMDs to buy land, we might just be like Hawai[ʻ]i and Guam where I think the locals don’t have land in their own land.” San Nicolas’ resentment of Article XII extends beyond NMD’s concerns of land alienation. Not only will it allow for the privatization of private lands, and possibly public lands if H.L.I. 18-5 is approved and sent to the ballot, it will determine whether the traditional and customary Chamorro practices of groundwater use and management will survive the next few years. As Kaipat mentioned, the current provisions of Article XII has already allowed foreign companies to establish businesses in the CNMI, which has resulted in increased water fees in Koblerville village. If the blood quantum requirement were decreased to some percentage of Northern Marianas Chamorro or Northern Marianas Carolinian blood, this would mean that many individuals would be entitled to own land, as long as they are able to establish this by a preponderance of the evidence. Further, if ever Article XII’s leasehold interest for foreign companies increase to 99 years, an influx of foreign investors would surely acquire private or public lands in the CNMI and would be able to control the surcharge of water to Chamorros who happen to stumble into their lands. It is because of this that Charles Manglona, Jose Kaipat, and Diego Camacho fear that the current water laws would not protect the use and management of groundwater. D. Incorporating Hawaiʻs Water Law into the CNMI’s Constitution In order to preserve traditional and customary Chamorro practices of groundwater use and management, the CNMI legislature must enact additional constitutional safeguards to protect groundwater. One way to do this is to create a public trust doctrine for water, similar to Hawaiʻi’s Article XI, sections 1 and 7. “Article XI, [section] 1 of the Hawaiʻi’s Constitution provides that all public natural resources are held in trust by the State for the benefit of the people.” Additionally, Article XI, section 7 specifically mentions water, as a public trust resource: “to protect, control, and regulate the use of Hawaiʻi’s water resources for the benefit of its people.” These laws have helped transformed Hawaiʻi’s water rights into a fundamental principle of constitutional law. By allowing groundwater to be held in trust for the benefit of the Chamorro people, this provision will protect the allocation of groundwater, even if Article XII’s amendments were adopted. Another possibility for protecting CNMI’s groundwater is adopting a constitutional provision that recognizes and protects traditional and customary Chamorro rights and practices in groundwater, similar to Hawaiʻi’s Article XII, section 7. Article XII, section 7 of the Hawaiʻi Constitution provides: “[t]he State reaffirms and shall protect all rights, customarily and traditionally exercised for subsistence, cultural and religious purposes and possessed by ahupuaʻa tenants who are descendant of native Hawaiians who inhabited the islands prior to 1778….” Because the CNMI shares similar histories with Hawaiʻi, an equal provision could work in its local constitution. By enacting a similar mandate, Chamorros would be able to practice and enjoy tradional and customary rights even though Article XII’s amendment would allow for the privatization of lands by foreign companies. V. Conclusion As the amendments to Article XII makes its way to the ballot box this upcoming year, additional constitutional mandates are essential to carry out the spirit of Article XII. The framer’s of Article XII drafted that this law with two things in mind: protecting the Chamorro people against exploitation and promoting their economic advancement and self-sufficiency. Because of the uncertainty and challenges Article XII faces, a new constitutional reform must be done, or else the centuries tradition of groundwater use and management will fall within the evils that the framer’s sought to protect. If nothing is done to protect these traditional and customary practices, the Chamorro people will likely fall victim to the burgeoning foreign empire that is ocurring in the islands and face the same fate that our sister islands in the north, Guam, and east, Hawaiʻi are currently facing. In the words of the Chamorro elders, “Hanom para i taotao siha,” (Water for the local people!).

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[ 1 ]. See, e.g., Telephone Interview with Vincent (Ben) Atalig Manglona, Rota Resident, in Rota, N. Mar. I. (Sept. 30, 2013) [hereinafter Uncle Ben’s Interview].
[ 2 ]. See generally Univ. of Guam Water Res. Research Ctr., Freshwater Use Customs on Guam: An Exploratory Study 18 (Rebecca A. Stephenson ed., Office of Water Research and Technology 1978) (1979) [hereinafter Freshwater Use Customs on Guam] (explaining that the “Chamorro language contains archeological clues in the form of words and phrases which are concerned with water use in subsistence as well as social patterns.”)
[ 3 ]. Uncle Ben’s Interview, supra note 1.
[ 4 ]. Id.
[ 5 ]. Id.
[ 6 ]. The CNMI is composed of three populated islands: Saipan, Tinian, and Rota. See generally Samuel F. McPhetres, Self-Government and Citizenship in the Commonwealth of the Northern Mariana Islands U.S.A. 6-13 (1997) [hereinafter McPhetres].
[ 7 ]. Groundwater serves as the primary source of drinking water in the CNMI. In fact, most of the rainfall that occur in the CNMI collects in underground aquifers because a great portion of the islands are made up of permeable and fragmented limestone. CNMI/Guam Stormwater Management Manual – Final (CNMI Dep’t. of Envtl. Quality, Saipan, N. Mar. I.), at 1-16, available at www.deq.gov.mp/artdoc/Sec6art 199ID657.pdf; See also Robert L. Curruth, Ground-Water Resources of Saipan, Commonwealth of the Northern Mariana Islands: U.S. Geological Survey (USGS ed., 2003), available at http://www.epa.gov/region9/water/tmdl/pacislands/cnmi305b-integrated-report-nov2010.pdf. Rapid developments and increases in resident and tourist populations have to stress the islands’ groundwater supplies. So far, several of the CNMI’s groundwater locations have been contaminated. For example, a section of Tinian’s groundwater had been contaminated by seepage coming from an aboveground fuel storage tank. Also, several locations on Saipan have been abandoned because of saltwater intrusion caused by the over pumping and over drilling of wells. Peter Houk et al., Commonwealth of the Northern Mariana Islands Integrated 305(b) and 303(d) Water Quality Assessment Report 5-8 (Brian Bearden ed., Division of Environmental Quality) (2010), available at http://www.epa.gov/region9/water/ tmdl/pacislands/cnmi305b-integrated-report-nov2010.pdf . Fortunately, the island of Rota in the CNMI is the only island with no known groundwater contamination. Id.
[ 8 ]. See generally CNMI Const. The only reference to water mentioned in the local constitution is Article I, section 9.
[ 9 ]. The CNMI House of Representative rejected in 2010 a Senate-amended House Legislative Initiative (Senate amended House Legislative Initiative 17-3) that changes “the 25 percent blood quantum requirement to only at least some degree of Chamorro or Carolinian blood or a combination of these, in order to be considered a person of Northern Marianas descent.” By substantially reducing the blood quantum requirement, this legislation would make it easier for people to own land in the CNMI. Haidee v. Eugenio, CNMI Senate Considering Amendments to Blood Quantum Laws, Saipan Tribune, June 5, 2012, available at http://pidp.org/archive/2012/June/06-05-15.htm. In addition to House Legislative Initiative 17-3, the Senate Natural Resources Committee recommended passing HLI 17-3, which would amend Article 12. This legislation would “increase the lease term in Article 12, Section 3 of the NMI Constitution from 55- to 99-year leaseholds for non-NMD investors.” Haidee v. Eugenio, CNMI Senate Changes Constitutional Indigenous Descent Rules, Saipan Tribune, June 29, 2012, available at http://pidp.org/archive/2012/June/06-29-05.htm. By amending Article 12, this legislation encourages and “attracts investor’s through leasehold agreements.” Id.
[ 10 ]. This paper will focus on the traditional and customary Chamorro practices in Rota.
[ 11 ]. D. Kapuaʻala Sproat, Ola I Ka Wai: A Legal Primer for Water Use and Management in Hawaiʻi 7 (2009) [hereinafter Legal Primer for Water Use].
[ 12 ]. Univ. of Guam Water Res. Research Ctr., Freshwater Use Customs on Rota: An Exploratory Study 1-61 (Rebecca A. Stephenson ed., Office of Water Research and Technology 1978) (1980) [hereinafter Freshwater Use Customs on Rota].
[ 13 ]. Id.
[ 14 ]. “Latte village sites” are ancient Chamorro village sites. See generally Guampedia: The Encyclopedia of Guam, http://guampedia.com/latte-structures/. “The latte stones were comprised of two pieces, a supporting column (haligi), made from coral limestone topped with a capstone (tasa), made from coral heads.” Id. “The ancient Chamorros generally arranged latte stones in two parallel rows of four or more pairs to support their important rectangular, steep pitched roof.” Guam History and Culture, http://www.guam-online.com/history/.
[ 15 ]. See generally Commonwealth of the Northern Maria Islands (CNMI), http://www.coris.gov/portals/cnmi
.html (stating that the CNMI is comprised of 14 islands. Saipan, Tinian, and Rota are the only inhabited islands.)
[ 16 ]. Freshwater Use Customs on Rota, supra note 12, at 16.
[ 17 ]. Id. at 17. Stephenson noted that several latte sites between the villages of Guata and Muchon Point contained freshwater wells. “The Muchon complex of megalithic house supports is associated with a freshwater well….” Id.
[ 18 ]. Id. at 27.
[ 19 ]. Daniel G. Mueller, Comment: The Reassertion of Native Hawaiian Gathering Rights Within the Context of Hawai‘i’s Western System of Land Tenure 17 U. Haw. L. Rev. 165, 166 (1995) [hereinafter Native Hawaiian Gathering Rights]. “Typically, each ahupua‘a would encompass an area of land extending from the seashore to the mountains.” The chief and his people of an ahupua’a were able to gather resources from mountain to sea. A tenant of an ahupua‘a can also enter another ahupua’a to gather from those lands.
[ 20 ]. Freshwater Use Customs on Rota, supra note 12.
[ 21 ]. Freshwater Use Customs on Guam, supra note 2, at 14. One commentator noted that Mirconesia had developed basic social institutions that have been molded to adapt to the concept and reality of limited land. “Limited land means limited resources.”
[ 22 ]. Id.
[ 23 ]. Native Hawaiian Gathering Rights, supra note 19, at 155. “Article XII, section 7 of the Hawaii Constitution, adopted in 1978, emodies the emerging tren in Hawaii public policy to protect Native Hawaiian culture: [ʻ] The State reaffirms and shall protect all rights customarily and traditionally exercised for subsistence, cultural and religious purposes and possessed by ahupua‘a tenants who are descendants of Native Hawaiians who inhabited the Hawaiian Islands prior to 1778, subject to the right of the State to regulate such rights.[ʻ] The traditional rights encompassed by article XII, section 7 include Native Hawaiian gathering rights.”
[ 24 ]. See generally Freshwater Use Customs on Rota, supra note 12, at 32 (noting Captain Freycinet’s account of his voyage to the Marianas.)
[ 25 ]. Freshwater Use Customs on Rota, supra note 12; see also McPhetres, supra note 6. The CNMI was under colonial control for over four centuries. The Spaniards first settled in the Mariana Islands around 1668 and maintained colonial control untul 1898. Spain’s influence in the islands was the lengthiest and resulted in “the birth of a patrilineal inheritance, local government, individual ownership, cash labor and a cash economy.” Germany was the second colonial power to gain dominance over the Northern Mariana Islands and they were credited for introducing a complex “land surveying and individual legal land ownership system, hospitals, schools, and taxes for public project.” Id. at 11-12. Japan became the third colonial power over the NMI. “Japan turned the NMI into producers of sugar cane, coffee, cassava, and pineapple, bringing Japanese, Okinawan, and Korean slave laborers into the island to cultivate the lands.” Marybeth Herald, The Northern Mariana Islands: A Change in Course Under its Covenant with the United States, 71 Or. L. Rev. 127, 131 (1992).
[ 26 ]. Freshwater Use Customs on Rota, supra note 12.
[ 27 ]. Id.
[ 28 ]. Id.
[ 29 ]. Id. at 33.
[ 30 ]. Id. at 36.
[ 31 ]. Id.
[ 32 ]. Freshwater Use Customs on Rota, supra note 12, at 33.
[ 33 ]. Id. at 34.
[ 34 ]. Id.
[ 35 ]. Id.
[ 36 ]. Id.
[ 37 ]. Id at 34.
[ 38 ]. Freshwater Use Customs on Rota, supra note 37.
[ 39 ]. McPhetres, supra note 6, at 11-12.
[ 40 ]. Id. at 38.
[ 41 ]. Id. 43; see also Id. at 12. After the end of WWI, the League of Nations assigned the Micronesian Islands to Japan as a Mandate.
[ 42 ]. Telephone Interview with Prudencio Taisacan Manglona, Former Rota Mayor and Delegate to the Trust Territory of the Pacific Islands, in Rota, N. Mar. I. (Sept. 30, 2013) [hereinafter Prudencioʻs Interview].
[ 43 ]. Id.
[ 44 ]. Telephone Interview with Charles Atalig Manglona, Resident Director of the Commonwealth Utilities Corporation (CUC), Rota Division, in Rota, N. Mar. I. (Sept. 30, 2013) [hereinafter Charles Manglona Interview. Matanhanum cave is the main water cave located in Sabana Mountain on Rota. CUC has designated Matanhanum water cave as a groundwater reservoir; however, EPA is currently conducting research to determine whether the water cave should be appropriately classified as surface water. According to Mr. Manglona, Matanhanum cave stores freshwater from rainwater that seeps in from the ceiling of the cave, and accumulates in pools in the cave.
[ 45 ]. Id. In addition to the Matanhanum water cave, another water cave called “Onan,” which is smaller in size, located in Lupok village, serves the other half of the island. The Japanese pipelines constructed in the 1940s carry the water from these water caves to two reservoirs, Ka’an and Dugi. These reservoirs are then used to supply water to all the villages on Rota.
[ 46 ]. See generally Commonwealth Utilities Corporation, http://www.cucgov.org/cuc-information/ cuc-aboutus/. “CUC is a state government corporation that operates the electric power, water and wastewater services on the islands of Saipan, Tinian, and Rota.”
[ 47 ]. See generally Population of the Commonwealth of the Northern Mariana Islands by Village: 2010 with 2007 Election Districts, http://commerce.gov.mp/wp-content/uploads/2012/05/2010-Census
-CNMI-Population-Statistics-by-Village-with-2007-ED-Sorted-by-2007-ED.pdf The 2010 census of Rota reports that the population of Rota was 2,527; see also Charles Manglona Interview, supra note 44. The capacity of the water caves to supply water to the island is between 5,000 to 10,000 people during the rainy season. If the population of Rota increases to over 10,000 people, the water cave will most likely dry up. Interview with Charles Manglona.
[ 48 ]. Charles Manglona Interview, supra note 44
[ 49 ]. Id. There are three existing wells on Rota: Wells 1 and 2 are located in Sinapalo I; and Well 3 is located in As Nieves village. The three existing wells are alternative water sources that are used during the dry season if the water in the water caves dry up. CUC constructed these wells in the early 1980s.
[ 50 ]. The Public Trust Doctrine first emerged in English and Roman law. The idea behind this doctrine is that natural resources like land and water are not private property, “but were held in trust by the government for the benefit of the people.” Legal Primer for Water Use, supra note 11.
[ 51 ]. CNMI Const. art. 1 § 9. This section pertains to personal rights.
[ 52 ]. Pub. L. No. 3-23. Public Law 3-23 established the Department of Environmental equality to “develop rules and regulations to carry out the policy and purpose of the Act.” The policy and purposes of the Act includes, but not limited to the following: “Section 2 (a)4: to afford special consideration to the environmental quality of places and things of cultural and historical significance to contribute to the protection and preservation….; Section 2(5): to maintain optimal levels of air, land, and water quality in order to protect and preserve the public health and general welfare; Section 2(7): to preserve, protect, and improve the aesthetic quality of the land, water, and natural resources of the Commonwealth in order to promote the beauty of the Commonwealth for the enjoyment of its residents and visitors….”
[ 53 ]. See generally CNMI Department of Environmental Quality, www.deq.gov.mp/sec/asp?secID=1.
[ 54 ]. Pub. L. No. 3-23, § 2(a)(6) (emphasis added).
[ 55 ]. Id. Since the enactment of Public Law 3-23, DEQ does not have any regulations for groundwater use and management.
[ 56 ]. The Safe Drinking Water Act of the CNMI was adapted from Federal Regulation. Telephone interview with Jose Kaipat, Manager of the Safe Drinking Water Act and a DEQ official, in Saipan, N. Mar. I. (Oct. 28, 2013) [Hereinafter Jose Kaipat’s Interview].
[ 57 ]. Id.
[ 58 ]. Id.
[ 59 ]. Id.
[ 60 ]. Id. The CNMI does not recognize mineral rights.
[ 61 ]. Id. Another reason Kaipat acknowledge why groundwater is not protected was because Chamorros began using rain catchment systems during the Japanese Administration of the islands.
[ 62 ]. Jose Kaipat’s Interview, supra note 56. Koblerville is a village in Saipan.
[ 63 ]. Id.
[ 64 ]. Id.
[ 65 ]. Id.
[ 66 ]. Id.
[ 67 ]. Id.
[ 68 ]. Jose Kaipat’s Interview, supra note 56. According to Jose Kaipat, Saipan’s groundwater resources have been depleted due to the presence of foreign investment businesses.
[ 69 ]. CNMI Const. art. XIV, § 3.
[ 70 ]. Id.
[ 71 ]. Telephone Interview with Diego Camacho, Historic Preservation Officer Chief Coordinator, in Saipan, N. Mar. I. (Oct. 28, 2013) [hereinafter Diego Camacho’s Interview].
[ 72 ]. Pub. L. No. 3-39. Public Law 3-39 was passed in December 2, 1982. It established the Historic Preservation Office to implement the requirements of Section 3 of Article XIV of the Commonwealth Constitution, which include the promotion and preservation of historic and cultural properties in the Commonwealth. Part of the concern that initiated passage of this act was the “cultural and historic properties [in the CNMI were] subject to damage and destruction by patterns of modern land use and development.” Section 2(b). Accordingly, “once they are destroyed they will be gone forever.” Id.
[ 73 ]. Id.
[ 74 ]. Department of Community and Cultural Affairs, Division of Historic Preservation, http://www.cnmihpo.net/program.html.
[ 75 ]. Diego Camacho’s Interview, supra note 71.
[ 76 ]. Id.
[ 77 ]. Id.
[ 78 ]. Id.
[ 79 ]. Id. Diego mentioned that HPO is currently looking for a certified archaeologist to conduct a field study within the next year. He hopes that the study will determine that the wells are prehistoric, in order for HPO to set regulations to preserve those sites.
[ 80 ]. Id. Camacho contends that it is difficult to say whether freshwater use is protected under Article XIV, section 3. He believes that this provision will likely protect ancient well (places or things, under the provision), and not groundwater resources. Additionally, Camacho argues that it is DEQ, not HPO that creates regulation for water.
[ 81 ]. Diego Camacho’s Interview, supra note 71. Diego is concerned about the groundwater use on Saipan. He stated that the condition of freshwater resources on Saipan is in a horrible state compared to Rota and Tinian. He attributed this problem to the growing presence of foreign investors and the amount of public land being leased to these foreign companies. He argued that something must be done now to preserve our freshwater resources.
[ 82 ]. CNMI Const. art. XII, § 4. Article 12, section 4 of the CNMI Constitution provides, “[a] person of Northern Marianas descent is a person who is a citizen or national of the United States and who is of least one-quarter Northern Marianas Chamorro or Northern Marianas Carolinian blook or a combination thereof…. For purposes of determining Northern Marianas descent, a person shall be considered to be a full-blooded Northern Marianas Chamorro . . . if that person was born or domiciled in the Northern Mariana Islands by 1950 and was a citizen of the Trust Territory of the Pacific Islands before the termination of the Trusteeship with respect to the Commonwealth.”
[ 83 ]. Nicole Manglona Torres, Self Determination Challenges to Voter Classifications in the Marianas After Rice v. Cayetano: A Call for a Congressional Declaration of Territorial Principles, 14 Asian-Pac. L. & Pol’y J. 153, 163 (2012) [hereinafter Self Determination Challenges to Voter Classifications]. “The Covenant converted the Northern Mariana Islands into a commonwealth and sealed the political relationship between the newly renamed CNMI and the United States in 1976…. A key aspect of the Covenant negotiations involved land use and ownership; see also Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States of America, Pub. L. No. 94-241, 90 Stat. 263 (1976)(codified as amended at 48 U.S.C. § 1801 (2006)), available at http://www.cnmilaw.org/covenant.htm [hereinafter Covenant]. “Section 805 of the Covenant provides that, the alienation of permanent and long-term interests in real property may be restricted to persons of Northern Marianas descent.” Rose Cuison Villazor, Blood Quantum Land Laws and the Race versus Political Identity Dilemma, 96 Cal. L. Rev. 801, 828-29 (2008) [hereinafter Blood Quantum Land Laws].
[ 84 ]. Self Determination Challenges to Voter Classifications, supra note 83, at 162.
[ 85 ]. Oliver Manglona, A Call for Re-Inscription on the United Nations’ List of Non-Self-Governing Territories: The Commonwealth of the Northern Mariana Island’s Struggle to Maintain its Right to Local Self-Governance (Apr. 22, 2013) (unpublished SYS paper, William S. Richardson School of Law) (on file with author). The Marianas Political Status Commission (MPSC) is the official negotiating body of the CNMI. Primary among the MPSC’s concerns was establishing a unique political relationship with the U.S. that advanced the political and economic development of the Marianas.
[ 86 ]. Blood Quantum Land Laws, supra note 83.
[ 87 ]. Self Determination Challenges to Voter Classifications, supra note 83, at 162. “Section 805 of the Covenant provides that, the alienation of permanent and long-term interests in real property may be restricted to persons of Northern Marianas descent.” Blood Quantum Land Laws, supra note 83.
[ 88 ]. Blood Quantum Land Laws, supra note 83, at 829.
[ 89 ]. Self Determination Challenges to Voter Classifications, supra note 83, at 163; see also CNMI Const. art. XII.
[ 90 ]. CNMI Const. art. XII, § 5.
[ 91 ]. Self Determination Challenges to Voter Classifications, supra note 83, at 162; see also Elizabeth Barrett Ristroph, The Survival of Customary Law in the Northern Mariana Islands, 8 Chi-Kent J. Int’l & Comp. L. 32, 39 (2008) [hereinafter Survival of Customary Law].
[ 92 ]. Survival of Customary Law, supra note 91, at 39-40.
[ 93 ]. Haidee v. Eugenio, CNMI Senate Kills Native Land Ownership Ballot Initiative, Saipan Tribune, May 9, 2012, available at http://pidp.org/archive/2012/May/05-09-14.htm [hereinafter CNMI Kills Native Land Ownership]. Section 805 of the Covenant gives the CNMI Legislature the ability to make any amendments to Article XII’s land alienation restriction after 25 years after the termination of the Trusteeship Agreement in 1986. That period ended in 2011.
[ 94 ]. S.L.I. No. 17-10, 17th Leg., 4th Spec. Sess. (N. Mar. I. 2011). Senate Legislative Initiative 17-10 was first introduced on June 9, 2011.
[ 95 ]. Id. Findings: “Article XII has served its purpose; our people are ready to continue the process of advancing as part of the global market place. But more than just a temporary economic fix, ending Article XII is a recognition of the fact we are now a sophisticated people, ready to handle the freedom and responsibility of disposing of our privately held property as we see fit. While we are proud of our tradition and our culture that promotes family and faith over more materialistic concerns, we find that Article XII unreasonably restricts our people. It attempts, unsuccessfully, to keep the real world, and its way of life and commerce away from our people. No people can survive and prosper attempting to run away from reality.”
[ 96 ]. CNMI Kills Native Land Ownership, supra note 93.
[ 97 ]. H.L.I. No. 18-1, 18th Leg. (N. Mar. I. 2013).
[ 98 ]. Id.
[ 99 ]. Id. H.L.I. 18-1 relaxes the evidentiary standard needed to prove “some degree of NMD.” Now, a person claiming to possess some degree of Northern Marianas Chamorro or Carolinian must show a preponderance of the evidence that they qualify for private lands.
[ 100 ]. Haidee v. Eugenio, Article 12 Now Goes to Ballot, Saipan Tribune, Sept. 17, 2013, available at http://www.saipantribune.com/newsstory.aspx?cat=1&newsID=150243. This came about after the House of Representative passed a Senate-amended Article 12 initiative.
[ 101 ]. Id. The next general election will be held on November of 2014.
[ 102 ]. In June 9, 2010, the House of Representative introduced House Legislative Initiative 17-3 “increasing the maximum private land lease from the current 55 years to 99 years….” Haidee v. Eugenio, Senate puts 99-Year Land Lease in House Article 12 Initiative on Blood Quantum, Saipan Tribune, June 29, 2013, available at http://www.saipantribune.com/newsstory.aspx?newsID=120038 [hereinafter 99-Year Land Lease]. The house initiative was later amended by the Senate, but was ultimately shut down by the House. Id.
[ 103 ]. Id.
[ 104 ]. H.L.I No. 18-5, 18th Leg. (N. Mar. I. 2013).
[ 105 ]. Article XI, section 5(c) provides that the Marianas Public Land Corporation “may not transfer a freehold interest in public lands for twenty-five years including renewal rights. An extension may be given upon approval by three-fourths of the members of the legislature.” CNMI Const. art. XI, § 5(c).
[ 106 ]. Id.
[ 107 ]. H.L.I No. 18-5, 18th Leg. (N. Mar. I. 2013). H.L.I. 18-5 has not yet been adopted by the legislature.
[ 108 ]. Id.
[ 109 ]. Raquel C. Bagnol, CNMI Native Land Ownership Allegedly Hinders Investment, Marianas Variety, Sept. 5, 2013, available at http://pidp.eastwestcenter.org/pireport/2013/September/09-05-16.htm.
[ 110 ]. Saipan Tribune is the islands’ leading news outlet.
[ 111 ]. 99-Year Land Lease, supra note 102.
[ 112 ]. H.L.I. No. 18-1, 18th Leg. (N. Mar. I. 2013).
[ 113 ]. See generally Haw. Const. art. XI, §§ 1, 7.
[ 114 ]. Legal Primer for Water Use, supra note 11.
[ 115 ]. Id.
[ 116 ]. Id.
[ 117 ]. Id. at 11.
[ 118 ]. H.L.I. No. 18-1, 18th Leg. (N. Mar. I. 2013).
[ 119 ]. Prudencioʻs Interview, supra note 42.