an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
In 1898, with the signing of the Treaty of Paris and the end of the Spanish-American War, the United States became a colonial power. Over a century later, the overseas empire remains and has in fact grown substantially. Relying on Art. IV, Section 3 of the U.S. Constitution, Congress has set up a patchwork quilt of jurisdiction and control over the five US territories of Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa and the Commonwealth of the Northern Mariana Islands.
These five territories have three different statuses under U.S. law and two different statuses internationally. The U.S. Virgin Islands, Guam and American Samoa remain on the United Nations’ list of “Non-Self-Governing Territories,” while Puerto Rico and the Northern Mariana Islands have commonwealth status, and are thus deemed to be self-governing, despite their continued standing as not destined for eventual statehood. This post aims to explain the varying positions of these territories within U.S. law and examine how we got to where we are.
Under U.S. law, territories can take one of several forms. First, a territory can be incorporated or unincorporated. Incorporation, within the territorial context, has been defined by the Supreme Court as destined for eventual statehood. As of now, all five U.S. territories are defined as unincorporated. Ever since the Court decided the “Insular Cases,” a series of cases from the turn of the 20th Century, this has meant that these territories are not full members of the Republic. In fact, the Supreme Court once famously described Puerto Rico as “foreign, in a domestic sense.” This distinction between incorporated and unincorporated territory has been used by the Court to deny equal rights to territorial citizens. For example, while fundamental constitutional rights, such as the First Amendment, apply fully to these territories, other, procedural rights, such as the Sixth Amendment’s guarantee of a trial by jury, do not. These rights apply only at the sufferance of Congress. Currently, Congress has extended the Constitution to all territories, although the 14th Amendment has limited application in the Commonwealth of the Northern Mariana Islands and American Samoa (more on this below).
The second distinction recognized by U.S. law is between organized and unorganized territories. An organized territory is one in which Congress has passed an organic act, setting up a system of government. Currently, the U.S. Virgin Islands and Guam are organized territories, with systems of government set up by federal statute. American Samoa remains an unorganized territory, operating under an indigenous system of government not directly regulated by Congress. Finally, Puerto Rico and the Northern Marianas are commonwealths, which indicates a higher level of political organization. However, any changes to the governing documents of these islands must be approved by Congress and the President. The exception is the Northern Marianas. Under the Covenant, it has the right to change its constitution without Congressional or Presidential approaval. Using this rubric, the territories can be classified thusly: Puerto Rico and the Northern Marianas are unincorporated commonwealths, Guam and the Virgin Islands are unincorporated organized territories and American Samoa is an unincorporated unorganized territory.
All five territories pay federal taxes. However, Congress has directed that any monies collected be returned to the islands for their own local use. This has led many to the mistaken impression that islanders are not required to pay federal taxes.
With the exception of Puerto Rico, all U.S. territories work with the Office of Insular Affairs in the Department of the Interior. This branch office works with the territories and is the primary contact point with the Executive Branch. This office also works with the three freely associated states of the Republic of the Marshall Islands, the Federated States of Micronesia and the Republic of Palau. These states differ from territories in that they are independent nations, but have signed a Compact of Free Association with the United States. Under these agreements, these nations remain independent, but rely on the United States to handle defense, funding grants and social services to the citizens of these island nations. All three were formerly in the Trust Territory of the Pacific Islands set up by the United Nations and administered by the United States.
Puerto Rico is the oldest of the territories, having come under U.S. power as part of the settlement with Spain at the end of the Spanish-American war. Citizenship was extended to the island via the Jones Act in 1917, when the government of the island was completely reorganized. Puerto Rico ratified its constitution in 1952, and Congress and the President approved it. Puerto Rico has held several referenda as to its political status in relation to the United States, and much of the island’s political life revolves around this question. Parties can be classified by their varying support for statehood, independence or commonwealth status.
The latest referendum took place in 1996. Puerto Ricans were faced with three choices – independence, statehood or an “enhanced commonwealth status” which was never clearly defined. The largest share of votes (over 48%) went to “None of the Above” indicating that a large plurality of Puerto Ricans are happy with their current status. Independence received the lowest share of the votes.
The current status allows Puerto Ricans to serve in the armed forces, but they cannot vote for their Commander-in-Chief. Puerto Rico has a non-voting delegate who serves in the House of Representatives. He is elected to a four year term, has speaking privileges and can introduce legislation. However, under the current system, while he may vote in committee, he may only vote on the House floor when his vote is not definitive. Under the previous administration, he had no voting privileges at all on the House floor.
Decisions by the Supreme Court of Puerto Rico were appealable to the First Circuit Court of Appeals. However, since 1961, direct appeal has been had to the Supreme Court.
The Commonwealth of the Northern Mariana Islands
The Commonwealth of the Northern Mariana Islands (CNMI) were originally part of the Pacific Trust Territory created by the UN and administered by the United States at the end of World War II. In 1976, the Trust Territory was ended and the various components were allowed to vote on their status. The CNMI entered into negotiations with the United States to achieve a commonwealth status similar to Puerto Rico’s. The Covenant that was eventually negotiated was passed by Congress and remains in effect today.
Under the Covenant, the CNMI enjoys a great deal of home rule. The majority of the protections of the Constitution apply to the Commonwealth, though for the first 25 years, land ownership was restricted solely to natives of the Islands, despite the 14th Amendment’s requirement of equal protection. Unlike Puerto Rico, the CNMI does not have a delegate in Congress. Rather, they have a “Resident Representative” who lobbies on behalf of the Islands, but does not have office space on Capitol Hill and does not serve on Congressional committees. Rather, he plays a role akin to a lobbyist. Citizens of the islands are citizens of the United States. He is elected by the people every four years and presents his credentials to the Secretary of State, much like an ambassador, although he retains none of the rights or privileges of such an office. This makes the citizens of the CNMI the only American citizens without a voice in Congress.
Decisions by the Supreme Court of the Northern Mariana Islands were appealable to the Ninth Circuit Court of Appeals. Since May 1, 2004, parties have had the right to appeal directly to the Supreme Court.
The U.S. Virgin Islands
The U.S. Virgin Islands were purchased from Denmark in 1917. Citizenship was granted to residents of the Virgin Islands in 1927. In the last eighty years, the organic statute has been overhauled twice, most recently in 1954. As of 2008, the Virgin Islands was making its fifth attempt to write its own constitution. The four previous attempts (in 1964, 1971, 1977 and 1980) failed to achieve the necessary votes for ratification. On May 29, 2009, the President of the Constitutional Convention submitted an approved draft to the Governor of the U.S. Virgin Islands.
Like Puerto Rico, the Virgin Islands have an elected, non-voting Congressional delegate. The delegate is elected every two years. They took part in the Democratic Primaries during the 2008 elections, but like other territories are not eligible to vote for President.
In January, 2007, the Supreme Court of the Virgin Islands became the highest court, assuming jurisdiction from the Superior Court. For its first 15 years, appeals are to the Third Circuit Court of Appeals. Beginning in 2022 (or sooner if Congress so directs), appeals will be directly to the U.S. Supreme Court.
Guam is another former member of the Trust Territory of the Pacific Islands. It was administered by the U.S. Navy until 1950, when President Truman signed the Organic Act, providing for civilian government for the first time in Guam’s history. A locally drafted Constitution was rejected by the populace in 1979. Since that time, no further effort has been made to write a Constitution for Guam. The island has elected to deal with its political status prior to drafting a constitution.
Like Puerto Rico, Guam has hosted a series of referenda on its political status. In the most recent referendum, statehood was rejected in favor of commonwealth status by 3-1. Despite these calls for commonwealth status, along with a UN mandate to establish a permanent status for the island, Guam remains an unincorporated, organized territory. Citizens of Guam are citizens of the United States.
Guam has a non-voting delegate in Congress. Like the Virgin Islands, this delegate is elected every two years, serves on Congressional committees and may cast non-deciding votes on the floor of the House of Representatives. Decisions from the Supreme Court of Guam are heard by the Ninth Circuit Court of Appeals.
American Samoa is the only unincorporated, unorganized territory of the United States. Congress has never passed an organic act for the islands and they are still governed using the indigenous matai system in a local legislature known as the Fono. American Samoa received the right to elect its own governor in 1980. Prior to that time, the Governor was appointed by the President. Unlike the other territories, citizens of American Samoa are merely American nationals, eligible for citizenship, but not granted such citizenship as a matter of right. Interestingly, unlike either Guam or the Virgin Islands, American Samoa has adopted its own Constitution and has been governed by it since 1967. American Samoa has its own Congressional delegate in the House of Representatives.
Because of its lack of organization, American Samoa is something of a legal black hole. Judges on the High Court of American Samoa are appointed and removed by the Secretary of the Interior. American Samoa is not part of the Ninth Circuit, or any judicial circuit, like the other Pacific Territories. Appeals from the Court are to the Secretary of the Interior alone. Federal criminal cases are heard by the District Court for the District of Hawaii. Currently, the High Court is the only Article II Court in existence. In July, 2009, the American Samoan delegate introduced legislation in the House that would create a federal court for American Samoa, removing jurisdiction from the District Court in Hawaii.
Overall, the situation in the territories remains much as it has for the last century. While some steps have been made, such as the fact that all five territories elect their governors, much work still remains to be done to bring the territories into equality with each other, let alone the states. Education remains the key issue for representatives of the territories. Until members of Congress and the public at large are better educated about the existence of, and challenges facing the territories, real problems will remain. It is my hope that this post will help start this process of education.
Alan Tauber is a Ph.D candidate in political science at the University of South Carolina.