OPINION

Daniel Atalig appeals his conviction by bench trial in the Commonwealth Trial Court of marijuana possession in violation of 63 Trust Territory Code § 292(3) (c). Appellant unsuccessfully demanded a jury trial pursuant to Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 1412 (1968) and Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1186, 26 L.Ed.2d 437 (1970). Duncan decided that in state *556court prosecutions for serious criminal offenses the Sixth Amendment right to jury trial is a fundamental constitutional right guaranteed by the Fourteenth Amendment's Due Process Clause. 391 U.S. at 149, 156, 88 S.Ct. at 1447, 1451. Baldwin established that offenses punishable by inore than six months' imprisonment are among the serious offenses to which the Duncan jury trial right attaches. 399 U.S. at 69, 73-74, 90 S.Ct. at 1888, 1890-1891; id. at 74, 90 S.Ct. at 1891 (Black and Douglas, J.J., concurring in the judgment). The maximum penalty for violating § 292(3)(c).is one year imprisonment, a $1,000 fine or both.

The Commonwealth Trial Court denied appellant's jury trial demand on the basis of 5 501(a) of the Covenant to Establish a Commonwealth of the Northern Mariaria Islands in Political Union with the United States of America (the Covenant), Pub.L.No. 94-241, 90 Stat. 263 (1976). reprinted in 48 U.S.C. § 1681 note. Although Covenant § 501(a) recognizes that the Sixth Amendment and the Fourteenth Amendment's Due Process Clause apply in the Northern Mariana Islands (NMI), it provides that jury trials in criminal prosecutions under NMI law are required only when NMI law so mandates. Under 5 Trust Territory Code § 501(1), jury trials are available only for offenses punishable by more than five years' imprisonment or a $2,000 fine. Covenant § 501(b) indicates that the United States Congress has the power to approve § 501(a) notwithstanding the applicability of certain constitutional provisions in the NMI.

*557The issue presented^1 is whether the fundamental due process right to jury trial guaranteed by the Sixth and Fourteenth Amendments applies in criminal prosecutions under NMI law notwithstanding Covenant § 501(a) and 5 Trust Territory Code § 501(1). We conclude that it does. On that ground, we reverse and remand for a new trial. In so deciding we specifically hold as follows:

1. Covenant § 501(a) and 5 Trust Territory Code § 501(1) are unconstitutional to the extent that they deny the right to jury trial guaranteed by the Sixth Amendment and the Fourteenth Amendment's Due Process Clause;

2. Covenant § 501(b) is unconstitutional to the extent that it purports to authorize Congress to approve § 501(a)'s denial of the constitutional jury trial right.

*558I. FACTS

■Appellant is a Trust Territory citizen residing on Rota in the NMI. On September 12, 1981, he rode a commercial airline flight within the NMI from Rota to Saipan. He shipped two- boxes as cargo. The boxes contained deer meat and plastic bags filled with approximately five pounds of marijuana. After recovering the boxes at the Saipan airport's baggage and cargo claim area, appellant presented them at the regular customs inspection area to an agricultural quarantine inspector. After appellant complied with the inspector's'request to open the boxes, the inspector discovered the marijuana.

Appellee Commonwealth of the Northern Mariana Islands (the government) charged appellant by information with possession of 2.2 pounds or more of marijuana in violation of 63 Trust Territory Code § 292(3)(c). On February 25, 1982, the Commonwealth Trial Court denied appellant's demand for jury trial and his motion to suppress the marijuana. Appellant pleaded nolo contendere on March 1, 1982. On the same date the court convicted appellant and sentenced him to one year probation with special conditions that he serve 30 days in jail and pay a $1,000 fine. Appellant noticec an appeal on March 10, 1982. The court stayed . execution of sentence during the pendency of the appeal. /

*559II. OVERVIEW OF THE UNITED STATES-NMI RELATIONSHIP

A'brief overview of the relationship between the. united States and the NMI is appropriate to frame the constitutional issue which this appeal presents. The NMI is part of the Trust Territory of the Pacific Islands, which the United States has administered since 1947 as a United Nations trusteeship under the Trusteeship Agreement for the Former Japanese Mandated Islands, July 18, 1947, 61 Stat. 3301, T.I.A.S. No. 1665, 8 U.N.T.S. 189 (the Trusteeship Agreement). The United States disclaims d£ jure sovereignty over the Trust Territory and is obligated to treat the t.-rritory's people "with no less consideration than it would govern any part of its sovereign territory." People of Enewetak v. Laird, 353 F.Supp. 811, 819 (D.Haw. 1973), quoting 2 U.N..SCOR (116th mtg.) at 473 (1947)(statement by the United States Representative to the United Nations Security Council). The relationship between the United States and the people of the Trust Territory has been accurately described as "a fiduciary one... [in which) the interests of the inhabitants of the territory become paramount." Leibowitz, The Marianas Covenant Negotiations, 4 Fordham Int'l L.J. 19, 79 n.236 (1980); quoting Comment, International Law and Dependent Territories: The Case of Micronesia, 50 Temple L.Q. 58, 60 (1976).

*560Under Trusteeship Agreement Article 6.1, the United States must promote the development of self-government or independence in accordance with the freely expressed wishes of the Trust Territory's people. 2 This duty has been recognized as the most fundamental obligation of the trusteeship. See, e.g., Northern Mariana Islands: Hearing on H.J. Res. 549 before the Subcommittee on General Legislation of the United States Senate Committee on Armed Services, 94th Cong. 1st Sess. 152 (1975)(Senate General Legislation Subcommittee Hearing)(joint written answer by executive branch officials to a question by Senator Hart); J. Murray, The United Nations Trusteeship System 211, 239-240 (1957).3 The performance of this obligation during the trusteeship's first three decades did not escape judicial comment.4 Nevertheless, the mid-1970's marked the beginning of a transition toward greater self-government in the NMI.

The people of the NMI have historically sought closer and formal political association with the United States. See generally S.Rep.No. 433, 94th Cong. 1st Sess. 45(1975)(S.Rep. No. 433); id. at 137-158 (Mariana Islands District Legislature resolutions endorsing permanent political union with the United States). In December 1972, negotiations for the development of formal association commenced5 between the United States and a Marianas Political Status Commission created by the Mariana Islands District *561Legislature.6 These negotiations7 resulted in the signing of the Covenant on February 15, 1975. The NMI approved the document by a 78.8 percent vote in a plebiscite held on June 17, 1975. See generally S.Rep.No. 433, supra, at 63-64; id. at 413-414 (Tetter to President Ford from the United States' Plebiscite Commissioner). On March 24, 1976, the United States Congress enacted the Covenant as law. See generally Note, United Nations Trusteeship, 21 Harv.Int'l L.J. 204 (1977).

Pursuant to Covenant § 101, the NMI will formally become a self-governing commonwealth under United States sovereignty upon termination of the trusteeship. Although the trusteeship continues notwithstanding the original intention to terminate it by 1981,8 most of the Covenant is already in effect. Since January 9, 1978, a three-branch commonwealth government has operated under a locally drafted and adopted Northern Mariana Islands Constitution. 9 The local constitution and numerous Covenant provisions took effect on that date pursuant to a presidential proclamation required by Covenant § 1003(b). See Proclamation No. 4534, 42 Fed. Reg. 56593 (1977), reprinted in 48 U.S.C. § 16S1 note.

One of the Covenant sections which became operative was § 501, which concerns the applicability of the United States Constitution. Section 501(a) states in relevant part:

*562To the extent that they are not applicable of their own force, the following provisions of the Constitution of the United States will be applicable within the Northern Mariana Islands as if the Northern Mariana Islands were one of the several states... Amendments 1 through 9, inclusive ... Amendment 14,' section 1; ... provided, however, that neither trial by jury nor indictment by grand jury shall be required in any civil action or criminal prosecution based on local law (emphasis added).

Section 501(b) authorizes the United States Congress to approve § 501(a):

The applicability of certain provisions of the Constitution of the United States to the Northern Mariana Islands will be without prejudice to the validity of and the power of the Congress of the United States to consent to Sections 203, 506 and 805 and the proviso in Subsection (a) of this Section.

As indicated above, 5 Trust Territory Code § 501(1) is the governing NMI statute concerning criminal jury trials. 10 By providing for jury trials only for offenses punishable by more than 5 years' imprisonment or a $2,000 fine, this statute is clearly inconsistent with Duncan and Baldwin. We now turn to the issues raised by Covenant § 501 and 5 Trust Territory Code § 501(1).

*563III. DISCUSSION

Congress supported § 501(a)’s jury trial language on the basis of decisions represented by Balzac v. Puerto Rico, 258 U.S. 298, 42 S.Ct. 343, 66 L.Ed. 627 (1922) and Dorr v. United States, 195 U.S. 138, 24 S.Ct. 808, 49 L.Ed. 128 (1904). S.Rep.No. 433, supra, at 74. Balzac and Dorr are part of a pre-Duncan line of cases collectively known as the Insular Cases.11 Under the analytical framework developed in the Insular Cases. the Constitution applies fully in incorporated territories12 but only fundamental constitutional rights apply of their own force in unincorporated territories.13 E.g., Examining Board of Engineers, Architects and Surveyors v. Flores de Otero. 426 U.S. 572, 599 n.30, 96 S.Ct. 2264, 2280 n.30, 49 L.Ed.65 (1976).14

Balzac declared that the guarantee against the deprivation of life or liberty without due process of law is one of the fundamental constitutional rights which inherently apply in unincorporated territories. 258 U.S. at 312, 42 S.Ct. at 348. Implicitly and necessarily différentiating the right to due process, the court held that the Sixth Amendment right to jury trial is a non-fundamental right wh.ich does not apply of its own force. Id. at 304-305, 309-310, 313, 42 S.Ct. at 347-348. This unanimous holding followed prior rulings in Dorr15 and in Hawaii v. Mankichi, 190 U.S. 197, 218, 23 S.Ct. 787, 791, 47 L.Ed. 106 (1903); id. at 218-220, 23 S.Ct. at 791-792 (White and McKenna, J.J., concurring).

*564Appellant contends that Duncan overruled the jury trial holdings in Balzac, Dorr and Mankichi (the Insular Cases' jury trial doctrine). Ke submits that therefore the due process right to jury trial recognized in Duncan and Baldwin prevails over conflicting provisions of Covenant § 501 and 5 Trust Territory Code § 501(1).

The government argues that Duncan did not overrule the Insular Cases1 jury trial doctrine. It adds that the Covenant represents the United States1 fulfillment of its obligation under Trusteeship Agreement Article 6.1 to ensure that the people of the NMI achieve self-government. Reasoning from this premise, the government asserts that it would be inconsistent with that obligation to "force" jury trials upon the people of the NMI notwithstanding Covenant 5 501(a).

The constitutional issues which we confront here were discussed in admitted16dicta17 by another panel of this Court in Okaruru v. Commonwealth of the Northern Mariana Islands. DCA No. 80-9002 (D.N.M.I.App.Div. 1981). The Okaruru majority declared that the Insular Cases' jury trial Joetrine survived Duncan. The concurrence rejected this view but relied upon Covenant § 105 and § 501(a) in denying Okaruru’s jury trial claim.

Although dictum may be followed if it is sufficiently persuasive, it is not controlling and may be disapproved. E.g., Humphrey's Executor v. United States. 295 *565U.S. 602, 626-627, 55 S.Ct. 869, 873-874, 79 L.Ed. 1611 (1935); Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 399-400, 5 L.Ed. 257, 290 (1821). For reasons which follow, we respectfully disapprove the Okaruru dicta;

Our analysis of the parties' arguments proceeds in two steps. First, we determine that Duncan effectively overruled the Insular Cases' jury trial doctrine. Second, after ascertaining the state of the law we assess' the constitutionality of Covenant § 501 and 5 Trust Territory Code § 501(1) to the extent required by this appeal.

A. Duncan v. Louisiana and the Insular Cases Jury Trial Doctrine

As indicated above, the Insular Cases’ jury trial doctrine rested upon the premise that the Sixth Amendment right to jury trial was a non-fundamental right which was not a component of due process. During the same era in which the Supreme Court decided the Insular Cases, - the court similarly declared that the right to jury trial was a non-fundamental right which did not apply to staphs through the Fourteenth Amendments's Due Process Clause. E.g., Maxwell v. Dow, 176 U.S. 581, 603-605, 20 S.Ct. 448, 457-458, 44 L.Ed. 597 (1900). In a thorough review of Duncan and the Insular Cases, a three-judge district court in Puerto Rico correctly observed that fundamental constitutional rights have been historically *566coextensive in states and unincorporated territories. No right held to be non-fundamental and inapplicable in territories has ever been contemporaneously held to be a fundamental right with respect to states. Montalvo v. Colon. 377 F.Supp. 1332, 1340 (D.P.R. 1974)(per curiam). Therefore, we reject the government's position that different constitutional definitions of the term "fundamental rights" apply in states and territories.18

Duncan reaffirmed that the Supreme Court’s Sixth Amendment decisions "are always subject to reconsideration, a fact amply demonstrated by the instant decision." 391 U.S. at 158 n.30, 88 S.Ct. at 1452 n.30. As an example of the body of precedent which Duncan disapproved, the court named Maxwell v. Dow, which Dorr 19 and the concurring justices in Mankichi 20 expressly relied upon. Id. at 154-155, 88 S.Ct. at 1450. In addition to noting Maxwell's demise, the dissenting justices.protested that the court had "overturned" Mankichi. which was the first Insular Case to squarely, decide the Sixth Amendment jury trial issue. Id. at 184-186, 88 S.Ct. at 1467-1468 (Harlan and Stewart, J.J., dissenting).

The Insular Cases' jury trial doctrine had been seriously eroded even before Duncan interred it. In Reid v. Covert, 354 U.S. 1, 77 S.Ct. 1222, 1 L.Ed.2d 1148 (1957), the Supreme Court held unconstitutional a provision of the Uniform Military Justice Code which purported to authorize *567court-martial jurisdiction for capital offenses over civilian dependents of overseas military personnel. The court rejected older cases which decided that the Constitution is inoperative outside of the United States. 354 U.S. at 5-14, 77 S.Ct. at 1225-1229 (plurality); id. at 56, 77 S.Ct. at 1251 (Frankfurter, J., concurring in the result); id. at 65-67, 77 S.Ct. at 1256 (Harlan, J., concurring in the result). One of these older cases was In Re Ross, 140 U.S. 453, 11 S.Ct. 897, 35 L.Ed. 581 (1891). Ross was part of the asserted precedential support for the Insular Cases' jury trial doctrine. See Dorr, 195 U.S. at 144, 24 S.Ct. at 811. See also Downes v. Bidwell, 182 U.S. 244, 295n, 21 S.Ct. 770, 789n, 45 L.Ed. 1088 (1901) (White, Shiras and McKenna, J.J., concurring)(citing Ross in a case in which the right to jury trial was not an issue). In Reid, four justices also criticized the Instilar Cases' rationale that only fundamental constitutional rights apply of their own force in unincorporated territories.21 In addition, as pointed out by attorneys who advised the Marianas Political Status Commission and the NMI Constitutional Convention, 22 ' the Reid plurality expressly stated that the right to jury trial is a fundamental constitutional right. 354 U.S. at 9-10 and n.11, 13 and n.25, 77 S.Ct. at 1226-1227 and n.11, 1229 and n.25. The plurality underscored this conclusion by observing that the fear that jury trial might be abolished was one of the principal objections to the Constitution which ultimately led to the adoption of the *568Bill of Rights. Id. at 9 n.12, 77 S.Ct. at 1226 n.12.

The common premise underlying Balzac. Dorr. Mankichi and Maxwell was that the right to jury trial is not a fundamental due process right which applies of its own force against state or territorial governments. Reid undermined that premise and Duncan unmistakably repudiated it. We find support for our conclusion inithe well-reasoned opinions of Judge Stern in United States v. Tiede. 86 F.R.D. 227 (U.S.C. Berlin 1979) and dissenting Judge Tamm in King v. Morton. 520 F.2d 1140 (D.C.Cir. 1975).23

1. United States v. Tiede

Relying upon Duncan and Reid. Tiede held that the right to jury trial is a fundamental due process right which the United States Court for Berlin must extend to alien civilian defendants. The court questioned whether the Insular Cases' jury trial doctrine remained viable after Reid. It concluded that Duncan authoritatively voided the Insular Cases' premise that criminal jury trials are not fundamental in American law. 86 F.R.D. at 228, 249-252, 260.

In reasoning which also applies here, Tiede recognized the constitutional insignificance of the fact that defendants were aliens24^ rather than United States citizens. Noting that the defendants in Reid and in Duncan were American *569citizens, the United States argued that those cases did ndt benefit the defendant German citizens in Tiede. The court held the Sixth Amendment's jury trial guarantee to all who are "accused" covers both citizens and aliens.25 Id, at 259. This holding accords with settled Supreme Court jurisprudence. See, e.g., Wong Wing v. United States, 163 U.S. 228, 238, 16 S.Ct. 977, 981, 41 L.Ed. 140 (1896).

The coextensive availability of jury trials to citizens and aliens also follows from the language of the Fourteenth Amendment due process guarantee of which the Duncan jury trial right is part. The Fourteenth Amendment's Due Process Clause unqualifiedly protects "any person". Thus, Duncan's explicit holding was that the due process right to jury trial extends "to all persons." 391 U.S. at 154, 88 S.Ct. 1450. The Supreme Court recently reaffirmed that aliens are "persons" protected by Fourteenth Amendment due process. Phyler v. Doe, _, U.S. _, _, 102 S.Ct. 2382, 2391, 72 L.Ed.2d 786 (1982). As stated both in Balzac and in a case which recognized the applicability of the Constitution in the Trust Territory, "(i]t is the locality that is determinative of the application of the Constitution, in such matters of judicial procedure, end not the status of the people who live in it." 258 U.S. at 309, 42 S.Ct. at 347; accord, Ralpho v. Bell, 569 F.2d 607, 618 and n.65, reh. denied 569 F.2d 636 (D.C.Cir. 1977).

*5702. King v. Morton

In King v. Morton, 520 F.2d 1140 (D.C.Cir. 1975), a United States citizen claimed entitlement under the Constitution, to a jury trial in the High Court of American Samoa. The majority suggested in dicta26 that the Insular Cases' jury trial doctrine remains intact because Duncan and Baldwin "dealt with the right to jury trial in states rather than in unincorporated territories." Id. at 1147.

The government accurately characterizes the King majority's dicta as statements which "rewrite" rather than apply the Insular Cases' reasoning. Appellee's Brief at 19-23. Balzac declared that Justice White's concurrence in Downes v. Bidwell embodied the Supreme Court's "settled law". 258 U.S. at 305, 42 S.Ct. at 346. Justice White maintained that the initial analytical step in determining the applicability of a constitutional guarantee to an area is to assess the area's relation to the United States. 182 U.S. at 293, 21 S.Ct. at 789. As subsequent decisions confirm, this initial step requires a court to identify an area as an incorporated or án unincorporated territory. If the territory is unincorporated the question becomes whether the asserted right is constitutionally fundamental. If the right is fundamental, it applies of its own force. See Flores de Otero, 426 U.S. at 599 n.30, 96 S.Ct. at 2280 n.30; Balzac. 258 U.S. at 312, 42 S.Ct. at 348. The King *571majority did not employ this analysis. Indicating that the applicability of a constitutional right "does not depend on" the right's status as fundamental or a territory's status as unincorporated, the majority instead relied upon the analysis of the Insular Cases articulated by Justice Harlan's concurrence in Reid v. Covert. See 520 F.2d at 1147-1148. Justice Harlan viewed the critical test as whether a territory's local circumstances and necessities make jury trials "impractical” or "anomalous". 354 U.S. at 75, 77 S.Ct. at 1260. This test is not the inquiry required by the Insular Cases. It is a reformulation in which only Justice Frankfurter arguably joined27 and which a majority of the Reid court did not adopt.28

We find guidance in Judge Tamm's dissent, which persuasively refutes the government's argument here that Duncan's analysis with reference to "Anglo-American" jurisprudence implied the exclusion of insular legal systems from the court's holding. Footnote fourteen in Duncan's majority opinion reviewed prior Supreme Court decisions which recognized the incorporation of Bill of Rights guarantees by the Fourteenth Amendment's Due Process Clause. Noting the variety of ways in which the Supreme Court had previously defined the term "fundamental right",29 the Duncan court explained that the pivotal test is whether a particular procedure is "necessary to an Anglo-American regime of' ordered liberty." 391 U.S. at 149-150 n.14, 88 S.Ct. at *5721447-1448 n.14. The reference to an "Anglo-American regime of ordered liberty" raises the question of whether Duncan implicitly distinguished insular criminal justice systems.

Judge Tamm determined with respect to American Samoa that the answer to this question is no. His reasoning applies equally to the NMI. While conceding that the Supreme Court framed Duncan in terms of Anglo-American jurisprudence, Judge Tamm correctly pointed out that "the threshold proposition in Dorr and Balzac that jury trial was not fundamental was also in terms of Anglo-American jurisprudence." 520 F.2d at 1157 (emphasis in original). 'He added that the American Samoan criminal justice process ensures such classically Anglo-American protections as the double jeopardy prohibition, the privilege against self-incrimination, the right to counsel, the right to a speedy public trial, the right to confront witnesses and prohibitions against excessive bail or cruel or unusual punishment. Id.. The NMI criminal justice process also affords these safeguards. See Northern Mariana Islands Constitution, Article I, Section 4 (providing all of the rights which Judge Tamm observed exist under Samoan law and additionally prohibiting capital punishment), reprinted in Willens & Siemer, Constitution of the Northern Mariana Islands: Constitutional Principles and Innovation in a Pacific Setting. 65 Georgetown L.J. 1373, 1465 (1977).30 To paraphrase Judge Tamm's conclusion:

*573[T]he Government has not proffered so much as one significant distinction between... [the Anglo-American] system of criminal justice and... [the NMI's]... [T]he reason for this analytical void is that, essentially, the distinctions do not exist... What the Government has overlooked is the inherent beauty of our system - its ability to accommodate precisely the 'vastly different ethnic and cultural heritages' which the Government views as inimical to it.

520 F.2d at 1157-1158 (emphasis in original).

There is even less of a basis for meaningful distinction here than there was in King. Prior to King, jury trials had not been held in American Samoa. See Note, The Application of the American Constitution to American Samoa. 9 J. Int'l L. & Econ. 325, 339-340 (1974). In contrast, as the Okaruru majority judicially noticed, jury trials have been held in the NMI at least since 1974.31They were initially authorized by the Congress of Micronesia and the Mariana Islands District Legislature in 1966. 5 Trust Territory Code 227 (1966); Mariana Islands District Code 3.12.010, 3.12.020 (1966). The government cannot credibly argue that the people of the NMI are "unaccustomed to common law traditions"32 or "trained to a complete judicial system which knows no juries.33

The full text of footnote fourteen demonstrates that the Duncan court's intention was to reject statements in prior cases that the governing "fundamental right" test *574is whether "a civilized system could be imagined thát would not accord the particular protection." 391 U.S. at 149 n.14, 88 S.Ct. at 1447 n.14. The court emphasized that therelevant inquiry is whether a right is fundamental within the common law legal tradition. It employed the phrase "Anglo-American regime of ordered liberty" as .a synonym for "the common law system that has been developing contemporaneously in England and in this country." Id.. As indicated above, the NMI embraces that system.34

3. Conclusion

Although Duncan did not expressly overrule Balzac, Dorr or Mankichi, it does, not follow that the Insular Cases' jury trial doctrine survived. "Higher courts rarely enumerate all the precedents overturned when a new principle is announced." Kniffin, Overruling Supreme Court Precedents: Anticipatory Action By United States Courts of Appeals, 51 Fordham L.Rev. 53, 57 n.21 (1982)(collecting authorities). The precedential force of older authority may be as effectively dissipated by a later trend of decision as by a statement expressly overruling it. Sablan Construction Co. v. Trust Territory of the Pacific Islands. 526 F.Supp. 135, 142 (D.N.M.I.App.Div. 1981). Therefore, when subsequent Supreme Court decisions have eroded an older case without explicitly overruling it, k lower federal court must follow the Supreme Court’s new lea'd to a conclusion inconsistent with the older case. Rowe v. Peyton, 383 F.2d 709, 714 (4th Cir. 1967)(en banc), aff'd 391 U.S. 54, 57-58, 88 S.Ct. 1549, 1551, 20 L.Ed.2d 426 (1968). Duncan was a major step in what Justice Harlan aptly described as a "constitutional revolution" in the construction of the Fourteenth A.mendment's Due Process Clause. Baldwin, 399 U.S. at 130, 90 S.Ct. at 1922 (concurring in the result and dissenting in a companion case). In Montalvo v. Colon the court concluded, as we do, that because of the "great similarity in the *575practical and theoretical application of the tests used as to both states and unincorporated-territories... the notion of 'fundamental rights', which has undergone such a metamorphosis in the context of the interpretation of the Fourteenth Amendment, must be deemed to have had a similar expansion as to... unincorporated territories]." 377 F.Supp at 1341.35 By deciding that the right to jury trial is a fundamental due process right, Duncan erased the constitutional foundation of the Insular Cases’ jury trial doctrine. That doctrine is no longer good law.

B. Covenant § 501 and 5 Trust -Territory Code § 501(1)

. The question which we now address is whether the fundamental due process right to jury trial guaranteed by the Sixth and Fourteenth Amendments applies to criminal prosecutions under NMI law notwithstanding Covenant § 501(a) and 5 Trust Territory Code § 501(1). We hold that it.does. Under the Constitution’s Supremacy Clause (Article.VI, Clause 2), § 501(a) is invalid. Section 501(b) falls because it purports, to authorize Congress to approve § 501 (a)'s jury trial language. Pursuant tp Covenant § 50536, 5 Trust Territory Code § 501('l) also is void because it is inconsistent with constitutional due process guarantees.

*5761. Judicial Review of the Covenant's Constitutionality

The Okaruru dicta suggested that Covenant § 105 37 prevents the judiciary from invalidating Covenant provisions which conflict with the Constitution. We emphatically reject this interpretation. Section 105 is a restraint upon legislative authority. Section 105 states that § 501 and other fundamental Covenant provisions may be modified only by the mutual consent of the governments of the United States and the NMI. The purpose of § 105 is to protect the NMI against unilateral congressional alteration of the NMI's negotiated political status or the enactment of purely "local" legislation which does not also apply to states. See S.Rep. No. 433, supra, at 67; Senate General Legislation Subcommittee Hearing, supra, at 135-141 (contemporaneous memorandum of Covenant negotiating history submitted by United States officials in response to a request by Senator Hart); Marianas Political Status Commission, Section By Section Analysis of the Covenant to Establish a Commonwealth of the Northern Mariana’Islands 7, 15-19 (1975), reprinted in Northern Mariana Islands: Hearing on S.J.Res. 107 Before the United States Senate Committee on Interior and Insular Affairs, 94th Cong. 1st Sess. 365, 371-377 (1975)(Senate Interior and Insular Affairs Committee Hearing). Thus, § 105 expressly refers only to legislative modifications. The enactment history reinforces the conclusion that § 105 is a *577restraint upon legislative authority. See, e.g., S.Rep. No. 433, supra, at 67 (indicating that under § 105 "the United States agrees to limit the exercise of its legislative authority"). Moreover, Covenant § 903 states that cases or controversies arising under the Covenant are justiciable in federal court. This section manifests the awareness and the intent that the judiciary would ultimately resolve disputes concerning Covenant provisions and the rights which they define. Finally, Congress expressed uncertainty about § 501(a)'s constitutionality and the extent to which constitutional guarantees inherently apply in the NMI. See pp. 31-32, infra. Thus, Congress at least implicitly recognized that courts would have to resolve the lingering constitutional issues surrounding § 501(a). Cf. Flores de Otero. 426 U.S. at 590, 96 S.Ct. at 2275-2276 (stating a similar conclusion as to the determination of the applicability of the Constitution in the Commonwealth of Puerto Rico).

To the extent that the framers of § 105 actually intended to deny the judiciary the power to enforce the Constitution, § 105 is ineffectual. "It is emphatically the province and duty of the Judicial Department to say what the law is." United States v. Nixon, 418 U.S. 683, 703, 94 S.Ct. 3090, 3105, 41 L.Ed.2d 1039 (1974); Marbury v. Madison, 5 U.S. (1 Cranch.) 137, 177, 2 L.Ed. 60, 73 (1803). This duty is a responsibility which the judiciary is not at *578liberty to surrender or to waive. United States v. Dickson, 40 U.S. (15 Pet.) 141, 162, 10 L.Ed. 689, 697 (1841). As reflected by.the fact that it was necessary to decide the Insular Cases. the applicability of the Constitution is itself a question of constitutional law reserved ultimately for the judiciary. Tiede, 86 F.R.D. at 242.

2. The NMl's Status as An "Unincorporated Territory" For Purposes of Constitutional Analysis Under the Doctrine of Territorial Incorporation

• The government urges us to fashion a "new analysis" to supplant the Insular Cases' doctrine of territorial incorporation. It specifically submits that the doctrine's distinction between incorporated territories and unincorporated territories has outlived conceptual usefulness in an era of trusteeship administration and'an emerging negotiated commonwealth relationship between the United States and the NMI. We must decline this invitation.

Unlike the Insular Cases' jury trial doctrine, their analytical framework remains viable and binds this Court. To the extent that time has undermined that analytical framework, erosion has- occurred in the direction of favoring broader applicability of the Constitution in United States-controlled areas regardless of their technical political status. See note 21, supra. Since life evidently remains *579in the analytical model of incorporated and unincorporated territories, this Court must apply it. The government will have to obtain its new rule38 by constitutional amendment39 or from the Supreme Court.

The Insular Cases' analytical framework is not so unworkable as the government perceives it to be. As explained by counsel who argued DeLima, Downes and Mankichi, the doctrine of territorial incorporation is necessarily couched in vague and elastic terms.40 The Supreme Court has accordingly defined the term "unincorporated territory" in flexible language which arguably encompasses any status relationship other than statehood or incorporated territorial status. See note 13, supra. Courts have found the term sufficiently expansive to include the Trust Territory, of which the NMI remains part. See Ralpho, 569 F.2d at 618 and n.65; Thompson v. Kleppe, 424 F.Supp, 1263, 1268-1269 (D.Haw. 1976). (implied).41 Those courts correctly concluded that the fact the United States administers the Trust Territory as a trustee rather than as a sovereign is a distinction without constitutional significance. 569 F.2d at 619 and n.72; 424 F.Supp. at 1267.42 The Supreme Court's pronouncements concerning the Commonwealth of Puerto.Rico are also instructive. Although the court's decisions have been "neither unambiguous nor exactly uniform,43 they appear to apply the doctrine of territorial incorporation to Puerto Rico with the view that the island is an "unincorporated territory" for purposes of 41 *580constitutional analysis. See . e.g., Rodriguez v. Popular Democratic Party, _ U.S. _, _, 102 S.Ct. 2194, 2198-2199, 72 L.Ed.2d 628 (1982); Torres, 442 U.S. at 468-471, 99 S.Ct. at 2428-2429.44 These decisions stand against a backdrop of. precedent which recognizes theoretical differences between a commonwealth45 and a conventional "unincorporated .,territory.46

The Covenant’s legislative history predictably reveals a free and interchangeable use of the "commonwealth" and "territory" labels to describe the NMI. The Senate Committee on Interior and Insular Affairs observed that the word "commonwealth" is not a technical term of art.47 The Senate Committees on Foreign Relations and Armed Services further indicated that the United .States-NMI relationship under the Covenant would be "territorial in nature" although denominated as a commonwealth. S.Rep. No. 596, 94th Cong. 2d Sess. 2 (1976)(S.Rep. No. 596), reprinted in 1976 U.S. Code Cong. & Ad. News 448, 449 (1976 USCAN). These statements are consistent with views expressed by the executive branch. See, e.g.. Commonwealth of the Northern Mariana Islands: Hearing on H.J.Res. 549 before the United States Committee on Foreign Relations, 94th Cong. 1st Sess. 40, 43 (1975); Senate Interior and Insular Affairs Committee Hearing, supra, at 226 (statements by the President's Personal Representative for Micronesian Status Negotiations describing the NMI commonwealth as an "unincorporated terri*581tory"); S.Rep.No. 596, supra, at 8, reprinted in 1976 USCAN at 455 (summarizing executive branch testimony which characterized the NMI commonwealth as an "unincorporated territory").

We agree with Judge Stern that the Constitution is "a living document" which accommodates political and social evolution, and which is "to be applied under changing circumstances, in changing conditions and even in different places." 86 F.R.D. at 244.48 Neither the Constitution's language nor its logic requires courts to confine the meaning ' of, the judicially-originated term "unincorporated territory" to the types of status relationships which existed at the turn of the century. Although the inchoate NMI commonwealth has not yet fully gained the political status of a United States territory,49 it is "no more a foreign nation than is the Commonwealth of Puerto Rico." Smith v. Pangelinan, 651 F.2d. 1320, 1325 (9th Cir. 1981)(dictum).50 This .unique position does'not foreclose the NMI's inclusion within the broad generic class of "unincorporated territories" for purposes of constitutional analysis. Although the technical distinctions between a commonwealth and a conventional territory may be crucial in statutory construction,51; there is no difference between a commonwealth and a conventional territory in constitutional analysis at least with respect to the applicability of fundamental constitutional rights. See notes 44-45, supra, and Sea Land Services Inc. v. Municipality of San Juan. 505 F.Supp. 533, 541 n.27 (D.P.R. 1980) *582(collecting cases). We accordingly hold that the Commonwealth of the Northern Mariana Islands is an "unincorporated territory" for purposes of determining the applicability of the due process right to jury trial guaranteed by the Sixth and Fourteenth Amendments.

3. The Fundamental Due Process Right to Jury Trial Guaranteed by the United*. States Constitution Overrides Contrary Provisions in Covenant. § 501 and 5 Trust Territory Code § 501(1)

•A law which impinges upon a fundamental right explicitly or implicitly secured by the United States Constitution is presumptively unconstitutional. Harris v. McRae, 448 U.S. 297, 312, 100 S.Ct. 2671, 2685, 65 L.Ed.2d 784, reh. denied 448 U.S. 917, 101 S.Ct. 39, 65 L.Ed.2d 1180 (1980). Although we endeavor to construe legislation so as to avoid its unconstitutionally, we cannot engage in saving construction if statutory meaning and intent are clear, as they are here. Washington State Dairy Products Commission v. United States, 685 F.2d 298, 301-302 (9th Cir. 1982). The government correctly maintains that the Covenant represents the United States' fulfillment of its fiduciary obligation under Trusteeship Agreement Article 6.1 to' grant self-government or independence in accordance with the desires of the NMl's people. See. e.g., S.Rep.No. 433, supra, at 23. This historical fact neither overcomes the presumption above *583nor elevates the Covenant's authority to a level exceeding or commensurate with the paramount authority of the United States Constitution. 52

It is beyond debate that' treaties and laws. enacted pursuant to them must comply with the Constitution. E.g., Reid, 354 U.S. at 16, 77 S.Ct. at 1230; Geofroy v. Riggs, 133 U.S. 258, 267, 10 S.Ct. 295, 297, 33 L.Ed. 642 (1898); In Re Aircrash in Bali Indonesia, 684 F.2d 1301, 1308-1309 (9th Cir. 1982). In federal cases which have squarely addressed the applicability of the Constitution in the Trust-Territory, the courts have ruled that constitutional guarantees govern the United States' performance of its trust obligations. See Ralpho, 569 F.2d at 618-619; Kleppe, 424 F.Supp at 1268-1269.53 This is consistent with the established doctrine that the United States■government "is entirely a creature of the Constitution." Reid, 354 U.S. at 5-6, 77 S.Ct. at 1125; accord, Dorr, 195 U.S. at 140, 24 S.Ct. at 809. This principle applies to the fulfillment of Trusteeship Agreement obligations- to the same extent that it restrains the United States' performance of other international agreements. As Reid stated, "[i]f our foreign commitments become such that the Government can no longer-satisfactorily operate within the bounds laid down by the Constitution, that instrument can be amended by the process which it prescribes." 354 U.S. at 14, 77 S.Ct. at 1229.

*584Thus, the Constitution governed the actions of the executive branch officials who negotiated the Covenant. The Supreme Court recently reaffirmed that even in the most delicate fields of international relations executive authority "must be exercised in subordination to the applicable provisions of the Constitution." Dames & Moore v. Regan, 453 U.S. 654, 661, 101 S.Ct. 2972, 2978, 69 L.Ed.2d 918 (1981).

Because of the Constitution's supremacy over all other laws, no Act of Congress may authorize a constitutional violation. U.S. v. Odreal, 565 F.2d 598, 601 (9th Cir. 1977), cert.denied 435 U.S. 952, 98 S.Ct. 1581, 55 L.Ed.2d 803 (1978). The constitutional source of congressional legislative power over the Trust Territory has been alternately identified as the Territorial Clause (Article IV, Section 3, Clause 2)54 or the Necessary and Proper Clause 55 (Article I, Section 8, Clause 18);55 While congressional authority under both clauses is admittedly broad, constitutional guarantees limit the exercise of thát authority. E.g., Hooven & Allison Co. v. Evatt, 324 U.S. 652, 674, 65 S.Ct. 870, 881, 89 L.Ed. 1252, reh.denied 325 U.S. 892, 65 S.Ct. 1198, 89 L.Ed. 2004 (1945)(Territorial Clause); Chadha v. I.N.S., 634 F.2d 408, 433 (9th Cir. 1980), cert.granted. _ U.S. _, 102 S.Ct. 87, 70 L.Ed.2d 81 (1981) (Necessary and Proper Clause). When Congress applies to a territory a non-' fundamental constitutional provision which otherwise would ■ be inapplicable, courts give great weight to the legislative *585determination that the provision may be practically and beneficially implemented. Torres v. Commonwealth of Puerto Rico. 442 U.S., 470, 99 S.Ct. 2425, 2429, 61 L.Ed.2d 1 (1979). Nevertheless, the judiciary rather than Congress has the final word as to what constitutes Fourteenth Amendment due process. State Board of Insurance v. Todd, 370 U.S. 451, 457, 82 S.Ct. 1380, 1384, 8 L.Ed.2d 620 (1962). The judiciary also has the responsibility to adjudicate claims that a coordinate branch has exceeded its constitutional power. Chadha, 634 F.2d at 419. Therefore, the judiciary may be required to interpret the Constitution in a manner at variance with the construction given the document by another branch. United States v. Nixon, 418 U.S. at 704, 94 S.Ct. at 3105. This appeal presents an instance in which the judiciary must do exactly that.

Section 501(a)'s language and legislative history leave no doubt that Congress intended to "exempt" "the NMI from compliance with the Duncan-Baldwin jury trial right notwithstanding the applicability of the Fourteenth Amendment's Due Process Clause to the NMI government. See, e.g.. S.Rep. No. 433, supra. at 74-76. Yet, there is evidence of congressional uncertainty about § '501(a)'s constitutionality. The Senate Committee on Interior and Insular Affairs admitted that "[t]he formulation of... [§501(a)J has been complicated by a certain ambivalence in the decisions of the Supreme Court which hold, that the provisions of the Constitution protecting fundamental rights of citizens extended to the territories *586of the United States by their own force, while other provisions apply to unincorporated territories, such as the Northern Mariana Islands, only if expressly extended to them." S.Rep. No. 433, supra, at 73. A four-member Senate study of Pacific island polities warned that the Covenant's specification that only certain constitutional provisions apply is "an arrangement the constitutionality of which may be questioned." 122 Cong.Rec. 5137 (1976). Senator Harry Byrd likewise voiced concern about the "constitutional questions surrounding the proposed Covenant." Id. at 1123 (1976). Although these comments are general statements about § 501(a) which do not specifically address the jury trial question, they reflect that Congress was unsure of its powers regarding the NMI and the extent to which the Constitution inherently applied there.

The government submits that a ruling against its position will "force" jury trials upon the people of the NMI. This perceived problem is apparent rather than real. A defendant may voluntarily, knowingly and intelligently relinquish constitutional rights. E.g., Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). The Johnson standard applies to jury trial waivers. See Schneckloth v. Bustamante, 412 U.S. 218, 237 and n.22, 93 S.Ct. 2041, 2053 and n.22, 36 L.Ed.2d 854 (1973); United States ex rel. Williams v. DeRobertis, 538 F.Supp. 899, 903-904 (N.D.Ill. 1982)(collecting cases).56Moreover, the government's assertion that the people of the NMI do not want jury *587trials is amply discredited both by dppellant's presence before this Court and by the legislative history of the NMI Constitution.57 In any event, even if the popular consensus during the Covenant's negotiation and approval was that the constitutional right to jury trial should be denied, the right emerged unaffected:

The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty... and other.fundamental rights may not be submitted to vote;'they.depend upon the outcome of no elections.

West Virginia State Board of Education v. Barnette, 319 U.S. 624, 638, 63 S.Ct. 1173,, 1185-1186, 87 L.Ed. 1628 (1943).

The Sixth and Fourteenth Amendments undeniably force jury trials upon the government against its will. As Duncan and its progeny teach, that- is precisely the constitutional design:

The guarantees of jury trial in the Federal and State Constitutions reflect a profound judgment about the way in which law should be enforced and justice administered. A right to jury trial is granted to criminal defendants in ■order to prevent oppression by the Government.,.. Providing an accused with the right to be ' tried by a jury.... [affords] añ inestimable safeguard against the corrupt or oversealous prosecutor and against the corrupt, biased, • or eccentric judge... [T]he jury trial provisions in the Federal *588and State Constitutions reflect a fundamental decision about the exercise of official power--a reluctance to entrust plenary powers over the life and liberty of the citizen to one judge or to a group of judges. Fear of unchecked power, so typical of our State and Federal Governments in other respects, found expression in the criminal law in this insistence upon community participation in the determination of guilt or innocence.

Duncan, 391 U.S. at 155-156, 88 S.Ct. at 1451; accord, Burch v. Louisiana, 441 U.S. 130, 135, 99 S.Ct. 1623, 1626, 60 L.Ed.2d 96 (1979). The right to jury trial is essentially part of the guarantee of a fair trial,58a guarantee which is "the most fundamental of all freedoms." Estes v. Texas, 381 U.S. 532, 540, 85 S.Ct. 1628, 1632, 14 L.Ed.2d 543 (1965). "Jurors bring to a case the community's value's and common sense; their ’very inexperience is an asset because it secures a fresh perception of each trial, avoiding the stereotypes said to infect the judicial eye."’ Parklane Hosiery Co. v. Shore. 439 U.S. 322, 355, 99 S.Ct. 645, 664, 58 L.Ed.2d 552 (1979) (Rehnquist, J., dissenting), quoting H. Kalven & H. Zeisel, The American Jury 8 (1966).

Under Trusteeship Agreement Article 6.1, the United States' primary fiduciary obligation to the people of the NMI is to ensure that they attain self-government or independence. Therefore, we agree with the government that ultimate sovereignty and the concomitant right of self-determination inherently repose in the NMI's people. See, *589e.g., Porter v. United States, 496 F.2d 583, 588 n.4 (Ct. Cl. 1974), cert.denied 420 U.S. 1004, 95 S.Ct. 1446, 43 L.Ed.2d 761 (1975). We accordingly hesitate to disturb any of the Covenant's carefully negotiated provisions. Nevertheless, one of our preeminent judicial responsibilities is to safeguard the cherished due process guarantees embodied in the Bill of Rights and the Fourteenth Amendment. The enduring principle which sustains our constitutional system that "[t]here cannot exist under the American flag any governmental authority untrammeled by the requirements of due process." Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 669 n.5, 94 S.Ct. 2080, 2084 n.5, 40 L.Ed.2d 452 (1974); accord, Ralpho, 569 F.2d at 618-619. When the NMI exercises its right of self-determination by entering more closely into the United States system, fundamental constitutional rights impose boundaries within which.the new relationship must function. In the words of commentary, "once a society, such as the Northern Marianas, freely chooses to become a part of the United States... the application of... [fundamental constitutional rights cannot] be the subject of negotiation." Branch, The Constitution of the Northern Mariana Islands: Does A Different Cultural Setting Justify A Different Constitutional Standard?, 9 Denver J. Int'l L. Pol'y 35, 39 (1980)(emphasis in original).

*590For the reasons above, we hold that the Sixth and Fourteenth Amendment fundamental due process right to jury trial expounded in Duncan v. Louisiana and Baldwin v. New York59 prevails to the extent that it conflicts with Covenant § 501 and 5 Trust Territory Code § 501(1). Since the Constitution guarantees appellant the right to a jury trial, neither the United States government nor the NMI government has the discretion to deny that right. See Tiede, 86 F.R.D. at 239 n.61. We reverse the judgment below and remand for a new trial.

March 31, 1983Date