Seminar: United States Territorial Possessions

LAW 6936 (2 credits)
Professor Pedro A. Malavet

Notes Part 2

Leibowitz, Chapter 1: The U.S. Territorial Experience

The Map

U.S. Territories
Puerto Rico (1898) (pop. 3.9 million)
Guam (1898) (pop. 167k)
American Samoa (c. 1900) (pop. 58k)
The Virgin Islands (1916) (pop. 109k)
The Commonwealth of the Northern Marianas (1947) (pop. 80k)

“Special Responsibilities”
Federated States of Micronesia (pop. 108k)
Marshall Islands (pop. 59k) and
Palau (pop. 20k)
Remnants of the old Trust Territory of the Pacific Islands, acquired in 1947 (with the Marianas)
Members of the U.N. and the “Anti-Terror” Coalition of the Willing
Statutory Relationship with the U.S.

Reasons for Continued Presence in the Pacific
After World War II, military doctrine saw the islands of the Trust Territory as an important forward base position …,
dangerous to the U.S. mainland if occupied by a large, hostile power.
Since the 16th century, the Micronesian Islands comprising the Trust Territory had been acquired and dominated by some larger power —Spain (until 1885), then Germany (1885-1914), and then Japan (1914-1945).

Limits on Local Territorial Initiatives (p. 3)
1. Perceived constitutional difficulties
2. Bureaucratic resistance, or
3. Congress’ inability to grant economic benefits to politically weak areas

The Territorial Process (p. 4)
Northwest Ordinance (1787)
(1) Total federal governmental authority
(2) Federal head of government and most of the executive branch, limited local legislative and judicial officials
(3) Statehood

Second Stage (p. 4).
The territories were permitted to elect a legislative body and draft a permanent constitution.
Continued appointed governor (very powerful)
Single representative in the House (tradition began with unicameral Confederation Congress.)
Note that the U.S. Constitution was approved by the Convention on Sept. 17, 1787, and became effective on March 4, 1789.

Johnson v. M’Intosh,
When the conquest is complete, ... the conquered inhabitants can be blended with the conquerors, or safely governed as a distinct people, …

Johnson v. M’Intosh, cont.
But the tribes of Indians inhabiting this country were fierce savages, whose occupation was war, and whose subsistence was drawn chiefly from the forest. To leave them in possession of their country, was to leave the country a wilderness; to govern them as a distinct people, was impossible, because they were as brave and as high spirited as they were fierce, and were ready to repel by arms every attempt on their independence.
21 U.S. 543, 8 Wheat. 543 (1822), at 589-90.

The author discusses that statehood, with its “symbiotic” relationship between the States and the Federal governments, provides more balance which provides “full economic and political participation of the U.S. citizens” who reside there.
Is this possible for the territories?

US Const. Art. IV, Sec. 3, Cl 1: Admission of new states
New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.
Fn. 22 p. 9

Territorial Clause Art. IV, Sec. 3, Clause 2
The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any claims of the United States, or of any particular state.
Text at 9-10.

Jefferson’s vs. Territorial Expansion
Treaty of 1783 ended hostilities between the United States and Great Britain (another treaty of 1783 established economic and political relations with Sweden).
Territorial expansion was occurring, and it was up to the national government to govern vis-à-vis any other nation, and relative to the states.

Basis: Territorial Clause and inherent powers of National Sovereignty.

Civil Rights of Territorial Inhabitants
Only limitation on the broad rights of the Federal Government over territories under Territorial Clause, and inherent powers of national sovereignty.
But, it is a very limited a judicially-timidly enforced view of “fundamental rights”

Anti-Colonial View
Jefferson initially opposed territorial expansion
“according to the spirit of the Constitution, the subjection of annexed territory to exclusive federal control is an abnormal and temporary stage necessarily preceding the normal and permanent condition of statehood.” (p. 11)

Series of cases
The U.S. Supreme court gave Congress broad powers to regulate territories
The right to govern may be an inevitable consequence of the right to acquire territory. Whichever may be the source whence the power is derived, the possession of it is unquestioned
American Insurance Co. (1828), p. 12

Supreme Court cases
In the organic act of Dakota there was not an express reservation of power in Congress to amend the acts of the territorial legislature, nor was it necessary. Such a power is an incident of sovereignty, and continues until granted away.
National Bank (1880)

Congressional Powers
the broad power of the Federal government vis-a-vis the territories;
the fact that this broad power stems not only from the territorial clause but also from other clauses of the Constitution and from the inherent powers of the national government; and
the only restrictions on the broad congressional powers were in relation to the civil rights of the inhabitants of the territories
P. 13.

“anomalous state” p. 13
Guam (under the U.S. Navy)
American Samoa (under the Secretary of the Interior)
Consider what other sources of constitutional authority have or may be used for territorial control

United States includes Territories
“‘United States’ is the name given to our great republic, which is composed of States and territories. The District of Columbia or the territory west of the Missouri is not less within the United States [and thus the Constitution applies] than Maryland or Pennsylvania....” p.16

Scott v. Sanford
“an Act of Congress which deprives a citizen of the United States of his liberty or property, merely because he came himself or brought his property into a particular Territory of the United States . . . could hardly be dignified with the name of due process of law.”

Scott v. Sanford (1854) p. 16
But no power is given to acquire territory to be held permanently in that character.
[Territory] is acquired to become a state, and not to be held as a colony and governed by Congress with absolute authority.
Other view: “Equal Protection,” the Constitution follows the flag. The territorial clause must be limited by constitutional provisions protecting individuals.

The “New” Colonialism won
The U.S. had to become a colonial power to compete with other world powers (now superpowers).
Statehood no longer the end result
Incorporated vs. Unincorporated cleavage largely determines which constitutional rights apply.

Independencia de América
Argentina, 1816
Chile, 1818
Colombia, 1819
México, 1821
Perú, 1821
(Ayacucho), 1824

Treaty of Paris
ARTICLE I: Spain relinquishes all claim of sovereignty over and title to Cuba. And as the island is, upon its evacuation by Spain, to be occupied by the United States, the United States will, so long as such occupation shall last, assume and discharge the obligations that may under international law result from the fact of its occupation, for the protection of life and property.

Treaty of Paris
Spain cedes to the United States the island of Puerto Rico and other islands now under Spanish sovereignty in the West Indies, and the island of Guam in the Marianas or Ladrones.

Treaty of Paris
Spain cedes to the United States the archipelago known as the Philippine Islands, and comprehending the islands Lying within the following line: ***

Occupied, but foreign; perhaps including “anomalous”?
Occupied, unincorporated territory
Occupied, incorporated territory

US Const. Art. I, Sec. 8, Cl 1. Powers of Congress--Taxation.
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the Common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States.

Insular Cases
Armstrong v. United States, 182 U.S. 243, 244 (1902) duties imposed after signing of Treaty of Paris not properly executed.
Dooley v. United States, 182 U.S. 222, 235 (1902) after the Treaty of Paris Puerto Rico was no longer subject to U.S. tariffs.
Insular Cases
Goete v. United States, 182 U.S. 221, 222 (1902) Puerto Rico is not a foreign country under U.S. tariff laws.
DeLima v. Bidwell, 182 U.S. 1 (1902) Puerto Rico is an island territory not a foreign country within meaning of U.S. tariff laws
Efrén Rivera Ramos, The Legal Construction Of American Colonialism: The Insular Cases (1901-1922), 65 Rev. Jur. U.P.R. 225 (1996).

Downes v. Bidwell, p. 22
[W]hen a treaty contains no conditions for incorporation, and, above all, where it not only has no such condition but expressly provides to the contrary, incorporation does not arise until in the wisdom of Congress it is deemed that the acquired territory has reached that state where it is proper that it should enter into and form a part of the American family.

Downes v. Bidwell, p. 22
Because Congress had not positively acted, Puerto Rico was, therefore, an unincorporated territory. The uniformity [in taxation] clause applies only to “territory which has been incorporated into . . . the United States;” and since Puerto Rico had not been specifically incorporated it did not apply there.

Downes v. Bidwell, 182 U.S. at 343-4 (1902)
*** the presumption necessarily must be that [the Congress], which within its lawful sphere is but the expression of the political conscience of the people of the United States, will be faithful to its duty under the Constitution, and, therefore, when the unfitness of particular territory for incorporation is demonstrated the occupation will terminate. I cannot conceive how it can be held that pledges made to an alien people can be treated as more sacred than is that great pledge given by every member of every department of the government of the United States to support and defend the Constitution.

Downes v. Bidwell, 5-4
1901-1902 insular cases are 5-4 opinions.
Justice Harlan led the dissenters.

Harlan in Downes
The idea that this country may acquire territories anywhere upon the earth, by conquest or treaty, and hold them as mere colonies or provinces the people inhabiting them to enjoy only such rights as Congress chooses to accord to them is wholly inconsistent with the spirit and genius as well as with the words of the Constitution.

Harlan, Downes, unassimilable
In my judgment, the Constitution does not sustain any such theory of our government system. Whether a particular race will or will not assimilate with our people, and whether they can or cannot with safety to our institutions be brought within the operations of the Constitution, is a matter to be thought of when it is proposed to acquire their territory by treaty. A mistake in the acquisition of territory, although such acquisition seemed at the time to be necessary, cannot be made the ground for violating the Constitution or refusing to give full effect to its provisions.

Treaty of Paris Art. IX: Citizenship of Peninsulares
Spanish subjects, natives of the Peninsula, residing in the territory over which Spain by the present treaty relinquishes or cedes her sovereignty, may remain in such territory or may remove therefrom, retaining in either event all their rights of property, including the right to sell or dispose of such property or of its proceeds; and they shall also have the right to carry on their industry, commerce and professions, being subject in respect thereof to such laws as are applicable to other foreigners. ***

Treaty of Paris Art. IX: Citizenship
The civil rights and political status of the native inhabitants of the territories hereby ceded to the United States shall be determined by the Congress.
* * *
Treaty of Paris, Dec. 10, 1898, U.S.-Spain, art. IX, T.S. No. 343 in Race and Races: Cases and Resources for a Diverse America 327 (Juan F. Perea, Richard Delgado, Angela P. Harris, Stephanie M. Wildman eds., 2000), citing 11 Treaties and Other International Agreements of the United States of America 1776-1949, at 615-19 (Charles I. Bevans ed., 1974)

Jones Act (1917): Statutory Citizenship
ch. 145, 5, 39 Stat. 951, 953 (1917)
conferring U.S. citizenship on all “citizens of Porto Rico [sic];” it adopted the definition of Puerto Rican citizenship included in the Foraker Act.

Foraker Act, ch. 191, § 7, 31 Stat. 79. (1900)
That all inhabitants continuing to reside therein who were Spanish subjects on [11 April 1899], and then resided in Puerto Rico, and their children born subsequent thereto, shall be deemed and held to be citizens of Puerto Rico, and as such entitled to the protection of the United States, except such as shall have elected to preserve their allegiance to the Crown of Spain ...”

Balzac Ruling
Fundamental rights, generally those guaranteed by the Due Process Clause, would automatically apply in the unincorporated territories. However, personal freedoms would not. Among the latter are the right to trial by jury and the right to uniform taxation.

Puerto Ricans v. “Americans”
... Alaska was a very different case from that of Porto Rico. It was an enormous territory, very sparsely settled and offering opportunity for immigration and settlement by American citizens. It was on the American Continent and within easy reach of the then United States. It involved none of the difficulties which incorporation of the Philippines and Porto Rico presents.…
Balzac v. People of Porto Rico, 258 U.S. at 309 (1922)

“Fundamental Rights” p. 25
Fourth Amendment protection against unreasonable searches and seizures, the Fifth Amendment right to just compensation, the Eighth Amendment right against civil and unusual punishment the right to the writ of habeas corpus, and the Eleventh Amendment are all so fundamental as to be applicable to unincorporated territories.

Not- “Fundamental” Rights p. 25
Fifth Amendment right to indictment by grand jury and the Sixth Amendment requirement of trial by jury in criminal cases were specifically held not to apply to an unincorporated territory
Perhaps others.

Citizenship Questions
14th Amendment issue: “born in” in the United States
Can statutory citizenship be taken away?
Can territorial citizens be President?

Leibowitz: Chapter 2: Alternative Legal Structures, Territoriality

Post-WWII Reforms
Self-government, or at least an elected governor
Civilian, not military authority for Guam, Samoa
Citizenship, except for Samoans
This process had begun with the eight principles of the Atlantic Charter signed by President Franklin Delano Roosevelt and British Prime Minister Winston Churchill in August 1941.

Post WWII Acquisitions, p. 30
The TTPI consists of 2,000 small islands now comprising the Commonwealth of the Northern Mariana Islands (CNMI) and the Freely Associated States (FAS) of the Federated States of Micronesia (FSM), the Republic of the Marshall Islands, and the Republic of Palau.

At Present?
Same old, same old
Northern Mariana Islands v. Atalig 723 F.2d 682 (9th Cir. 1984). P. 37.
Puerto Rico cases in the 1980s, p. 41
All rule that the Insular Cases are still good law.

(1) Local autonomy under the Commonwealth’s own constitution with less Federal supervisory authority;
(2) Some limitation on the Federal power to intervene in the Commonwealth;
(3) The establishment [articulation] of the principle of mutual consent in some areas of Federal concern;

(4) Continued authority in the Federal government with respect to national security and foreign affairs;
(5) Increased international participation for the Commonwealth; and
(6) U.S. citizenship for the residents of the Commonwealth.

Commonwealth (NMI)
(7) Special tax and tariff treatment for the Commonwealth;
(8) A long-term financial arrangement providing for Federal government support; and
(9) Federally delegated powers to the Commonwealth in some key areas, especially immigration.

U.N. Charter Art. 73
requires colonial powers administering non-self-governing territories to report “statistical and other information of a technical nature relating to economic, social and educational conditions in the territories” and “to promote . . . the well-being of the inhabitants ... and to develop self-government.”

Materials, p. 55.
UN Resolution 1541: “Colony”/Dependent Territory
Unlike independent states, colonies are possessions of the parent country, having no separate statehood or sovereignty. The parent state alone ... possesses international personality and has the capacity to exercise international rights and duties.
(1960) p. 60.

Effect of P.R. Commonwealth
[B]y the various actions taken by the Congress and the people of Puerto Rico, Congress has agreed that Puerto Rico shall have, under that Constitution [of Puerto Rico], freedom from control or interference by the Congress in respect of internal government and administration,

Effect of Commonwealth
… subject only to the Constitution [of the United States], the Puerto Rican Federal Relations Act and the acts of Congress authorizing and approving the Constitution. Those laws which directed or authorized interference with matters of local government by the Federal government have been replaced (emphasis added).

Commonwealth in PR
Puerto Rico argued that more than local autonomy was obtained with the establishment of the Commonwealth.
It argued that Commonwealth resulted in a restriction on the capacity of the Federal government to act pursuant to the territorial clause and some aspects of the relationship could not be changed without mutual consent.

Statehood Requirements
1. that the inhabitants of the proposed new State are imbued with and sympathetic toward the principles of democracy as exemplified in the American form of government;
2. that a majority of the electorate desire statehood; and
3. that the proposed new State has sufficient population and resources to support State government and to provide its share of the cost of the Federal government.

Statehood Requirements
There is little evidence that until fairly recently these standards were imposed in any meaningful way. However, in the cases of Hawaii and Alaska Congress seemed to take these standards fairly seriously. We shall examine each of these criteria in turn.

I. Introduction
Puerto Rico “unlike ... many other republics, never has been, is not, and probably never will be free.”
Brigadier General George W. Davis, who was Military Governor of Puerto Rico, made the statement while opposing any initiative that would have given Puerto Rico independence.

Current Territories: each is a U.S. “Colony”
As a matter of law, they lack sovereignty.
Sovereignty is used here in its positivistic sense to refer to the authority to impose law within the national territory.

Colony Means: the status of a polity with a definable territory that lacks sovereignty because legal/political authority is exercised by a peoples distinguishable from the inhabitants of the colonized region.
Ediberto Román, Empire Forgotten: The United States’s Colonization Of Puerto Rico, 42 Vill. L. Rev. 1119, 1137-38 (1997). Dependent territory [is] a territory which is geographically separate and is distinct ethnically and/or culturally from the country administrating it.***

UN Resolution 1541: “Colony”/Dependent Territory
The parent state may, nonetheless, grant or bestow upon its colony a degree of internal autonomy and even grant autonomy over certain external affairs. These rights, however, are generally considered revocable at the discretion of the parent state.
Insular Cases

Downes v. Bidwell, 182 U.S. 244, 287 (1902)
“We are therefore of the opinion that the island of Porto Rico [sic] is a territory appurtenant and belonging to the United States, but not part of the United States within the revenue clauses of the constitution.” p. 22