On the American Territories
The unplanned, perpetual non-States of the U.S.
When the United States Constitution was adopted, it was understood that in addition to the member States comprising the Union, that there would also be various territories that would come under the ownership and jurisdiction of the nation. Generally speaking, this was understood to be the lands to the West of the fledgling nation that would be settled by Americans and that would, in time, develop into new States that would join the Union. The years that followed the adoption of the Constitution saw not only the lands between the Appalachian Mountains and the Mississippi River settled and converted to several states, but also Florida, the vast Louisiana Territory and its decedents, Texas, lands ceded from Mexico, Alaska, and Hawaii.
However, in stark contrast to the normal evolution of territorial acquisition, settlement and development, with eventual ascension to statehood are the five inhabited territories of Puerto Rico, the U.S. Virgin Islands, Guam, the Northern Marianas, and American Samoa. These territories have continued in a state of perpetual territorial status - decades for some and more than a century for others. These five territories have evolved down a different path from previous territories, having achieved forms of self governance and even U.S. citizenship for local inhabitants in most cases, but legally being under the jurisdiction of Congress with little to no prospect of ever attaining the status of States. As mere territories, their residents have no voting representation in Congress, have no vote for President, and are the subject to good graces of Congress.
What would those who drafted and adopted the Constitution think of such perpetual territories, or colonies, as they are often called? What do we present day Americans think of this situation? Should this situation persist, should they be States or independent, or can we construct a better legal and political framework for these far flung parts of the American empire?
Let us consider first the current status of inhabited territories within the U.S. political and legal framework, followed by a very brief look at each territory's unique history as part of the U.S. Then let us consider the issue of permanent territories as part of the U.S. and what, if any, potential solutions could improve the situation while remaining true to the spirit and intent of American Federalism as originally constructed.
The Insular Cases
A series of Supreme Court decisions collectively known as the Insular Cases have served as the basis for the political and legal framework between the United States and its overseas island possessions for over a century. These cases came about almost immediately following the end of the Spanish-American War in 1898, the result of which saw Puerto Rico, Guam, Cuba, and the Philippines ceded to the United States (with Cuba and the Philippines eventually becoming independent).
Given that previous territorial acquisitions had, to be overly simplistic, included vast areas of sparsely populated lands on the continent, the U.S. had not really been confronted with the issue of how to integrate small, far away territories that were inhabited with substantive native populations that drastically differed in culture, language, religion, and race and ethnicity. Domestically, the constitutionality of engaging in a form colonialism, and to what extent the Constitution extended to these new territories and their inhabitants, were of concern in various cases brought before the Supreme Court.
The Supreme Court considered the Territorial Clause of the Constitution, which establishes plenary power with Congress over territories. It also noted Article IX of the Treaty of Paris that concluded the Spanish-American War, which gave Congress the authority over the civil rights and political status of the islands' inhabitants. However, in deciding the Insular Cases, the Supreme Court defined a distinction between "incorporated" and "unincorporated" territories, while also finding that constitutional rights do not fully apply in the territories simply as a result of U.S. ownership, and that absolute authority over the territories rests with Congress.
The Court defined an incorporated territory as one that would be expected to become a state while often a treaty or other agreement specifically stipulated that inhabitants would enjoy certain expected "rights, privileges, benefits, and advantages" - thus, the constitution would fully apply. As the island territories were not expected to become States, they were deemed to be unincorporated and only unspecified 'fundamental rights' were guaranteed, not the entirety of constitutional rights. Whether a particular right is a 'fundamental right' is a matter that the court system has to explore on a case-by-case basis.
The Insular Cases are certainly not without controversy. They are subject to charges of racism, assertions that the rulings are not based on the Constitution but rather on judicial legislating, and accusations that the inconsistencies among the cases all serve to undermine their legitimacy. Given that the Constitution clearly states that "Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory and other Property belonging to the United States," it is a wonder that the Supreme Court felt it appropriate to craft a doctrine rather than to simply defer the matter to Congress. While later laws passed by Congress would serve to modify and adjust the relationship between the Federal Government and each of the territories, the fundamental aspects of the legal and political framework created by the Insular Cases has endured.
It would likely surprise the average U.S. citizen to know that one's constitutional rights and privileges are not universally acknowledged throughout the entirety of the U.S. Instead, individual rights can differ depending on if one resides in a State, an incorporated territory, or an unincorporated territory. If one's residence is an unincorporated territory, a territorial constitution or Federal law may dictate some of the rights while leaving others undecided.
The Insular Act Territories
Today, there are five inhabited overseas island territories of the U.S. These include Puerto Rico, the U.S. Virgin Islands, Guam, the Northern Marianas, and American Samoa. Each is an unincorporated territory under the doctrine established by the Insular Acts.
Puerto Rico
Puerto Rico resides in the West Indies of the Caribbean Sea. The resident population consists of more than 3 million U.S. citizens that are predominately Hispanic. While both Spanish and English are official languages, the vast majority are fluent in Spanish (~95%) while roughly one quarter of the population speaks fluent English. While the influence of American culture is extensive, a unique Puerto Rican culture pervades the territory.
At the conclusion of the Spanish American War in 1898, Spain ceded Puerto Rico to the U.S. Congress established a local government for the territory via the Foraker Act of 1900 that consisted of a locally elected House of Representatives but a Governor and Senate appointed by the President. Also established was a non-voting delegate to the U.S. House of Representatives, referred to as a Resident Commissioner. Congress granted birthright U.S. citizenship to Puerto Ricans in 1917.
In 1950, Congress authorized Puerto Rico to establish a constitution and organize a local government, which was established and came into force in 1952. Under this new arrangement, the territory became officially known as the Commonwealth of Puerto Rico and its local government is popularly elected.
The territorial government functions much like a state government, yet the territory nonetheless remains, legally, subject the ultimate authority of Congress. Puerto Rico has no vote in Congress and no vote for President. It is also noteworthy that a Puerto Rican diaspora exists, with an estimated four million Puerto Ricans residing outside of the territory and throughout the rest of the U.S.
The political parties in Puerto Rico are more centered around the territory's future political status with the U.S. more than the social issues that typically divide Republicans and Democrats. The main political parties in Puerto Rico advocate for statehood, continued Commonwealth status, or independence.
U.S. Virgin Islands
Officially referred to as "The Virgin Islands of the United States", this unincorporated territory is also located in the West Indies, immediately to the East of Puerto Rico and bordered on the other side by the British Virgin Islands. The three main islands are Saint Thomas, Saint John, and Saint Croix. English is the primary language. The territory's economy is depends largely upon tourism.
The population of approximately 87K is largely black (~76%) with a substantive white minority (~16%). This is a reduction is population as it had over 100K residents in the census of 1990, 2000, and 2010.
The island group was acquired from the Kingdom of Denmark in 1917 for $25 million. Congress granted U.S. citizenship to inhabitants via statute in 1927. Federal authority over the territory is exercised through the Department of the Interior.
Congress passed an Organic Act in 1936 followed by the Revised Organic Act in 1954, establishing local government. Initially, a Governor of the territory was appointed by the President, but since 1970 the Governor is elected by the residents. The residents elect senators to a unicameral legislature. Residents also elect a non-voting delegate to the House of Representatives every two years.
Congress passed Public Law 94-584 in 1976, authorizing the U.S. Virgin Islands to establish a constitution and corresponding local government. Since that time, there have been five constitutional conventions yet the territory has failed to achieve a constitution.
Guam
Guam is the largest island in the Marianas, an island chain in the Pacific Ocean. With an area of 212 square miles, it is also the largest island in the region of Micronesia. Guam was placed under the control of the U.S. Navy in 1898 and primarily served U.S. military needs.
The island had a population of approximately 12 thousand in 1910, growing to 22 thousand by 1940.
but the local population has grown steadily over the past century reaching an estimated 154 thousand. The largest ethnic group on the island are the native Chamorro (~37%) with Asians of various descent comprise the next largest ethnic grouping (~33%). Both English and Chamoru are official languages of the territory.
When Hawaii was attacked by Imperial Japan on December 7th, 1941, Guam was also attacked that same day. Due to the International Date Line being between Hawaii and Guam, the date of the attack there technically December 8th, but it was the same actual day. A brutal occupation of Guam by Imperial Japanese forces continued until 1944 when American forces recaptured the island.
Congress passed the Guam Organic Act of 1950 which formally designated the island as an unincorporated territory and transferred Federal administration from the Navy to the Department of the Interior. The law also established a Governor, a unicameral legislature, and a Judiciary of Guam. Congress also granted birthright U.S. citizenship to the inhabitants of Guam. While the Governor was initially appointed by the President, Congress later changed this to a locally elected position with the Elective Governor Act of 1968. In 1972, Guam was permitted a non-voting delegate to the U.S. House of Representatives.
In Public Law 94-584 of 1976, Congress authorized Guam to establish a constitution and corresponding local government. Guam did propose a constitution in 1977 that was accepted in Washington but was rejected in a local plebiscite in 1979. No other constitutions have since been proposed. The is a small statehood movement within Guam.
Northern Marianas
Officially the Commonwealth of the Northern Marianas Islands, the territory comprises the Marianas Islands with the exception of Guam. The primary inhabited islands are Saipan, Tinian, and Rota. Altogether, the territory encompasses 183.5 square miles and a population of approximately 47 thousand. Nearly half of the population are Asian of varying descent, the native Chamorro represent the next largest ethnic group (~35%), while the remainder identify as multiracial or other. English, Chamaro, and Carolinian the official languages.
The U.S. declined to take possession of the Northern Marianas at the end of the Spanish-American War in 1898. Instead, Spain was allowed to sell these islands and the Caroline Islands to Germany. During World War I, Japan declared war on Germany and seized the Northern Marianas. Japanese control was accepted by the League of Nations in 1919.
The same day as the World War II attack on Pearl Harbor, December 7th/8th 1941, Imperial Japanese forces from the Northern Marianas attacked Guam. The Japanese employed Chamorros from the Northern Marianas during the occupation of Guam, causing a rift within the broader Chamorro community of the Marianas Islands. The U.S. invaded and gained control of the Northern Marianas in 1944. The U.S. then used the islands to regain control of Guam. The Enola Gay, the American plane that dropped the first atomic bomb on the Japanese city of Hiroshima, took off from the island of Tinian.
After World War II, the United Nations entrusted the United States with administration of the Trust Territory of the Pacific, which included the Northern Marianas along with other Micronesian island groups. The Northern Marianas made many attempts to unify with Guam while Trust Territory of the Pacific was in place. In the 1970s, the Northern Marianas decided to not seek independence and instead negotiated for a commonwealth status with the U.S. The commonwealth arrangement was agreed to by referendum and approved by the U.N. The U.S. officially gained sovereignty over the unincorporated territory on November 4, 1986, and on that same day the territory's constitution came into effect and the people of the territory gained U.S. citizenship.
American Samoa
American Samoa is a collection of five islands and two coral atolls in the South Pacific Ocean, sitting southeast of the independent country of Samoa and just East of the International Date Line. The territory comprises 76.1 square miles. The population of the territory is approximately 46 thousand. Nearly all of the population lives on the island of Tutuila. Approximately 88.5% of the population are native Samoans, with the remainder largely consisting of various Pacific Islander and Asian ethnicities. The Samoan language and English are the official languages.
The traditional family unit, the 'aiga, is an extended family unit headed by a chief, the matai, that has authority over the distribution of communal lands. The vast majority of land in American Samoa is communal land. The law in America Samoa also makes it illegal for anyone with less 50% Samoan blood to own land.
Germany, the United Kingdom, and the United States disputed control over the Samoan Islands until the Tripartite Convention of 1899 was reached, resulting in a partition of the islands between Germany and the U.S. The eastern grouping of islands then became known as American Samoa. In 1900, the U.S. formally annexed the territory. The U.S. Navy took control and developed Pago Pago Bay into U.S. Naval Station Tutuila. The Navy also obtained Deeds of Cession for Tutuila and the islands of Manu'a from the natives on behalf of the U.S. Government. The coral atoll known as Swains Islands was officially annexed in 1925. The territory was used by the Navy and Marines during World War II and many American Samoans served during the war.
In 1950, administration of the territory was transferred to the Department of the Interior. The Governor for the territory has been locally elected since 1956. Despite the fact that Congress has never passed an organic act for American Samoa, the territory adopted its own constitution and began de facto self-governance on July 1, 1967. The territory has a non-voting delegate to the House of Representatives.
U.S. citizenship has never been granted to the people of American Samoa, who instead are considered U.S. nationals but not citizens. While some have individually obtained citizenship through a naturalization process, the majority are nationals. As nationals, American Samoans can reside anywhere in the U.S. The territory operates its own immigration law, separate from that of the U.S.
Challenges have been made in federal court to assert that birthright citizenship applies American Samoa, but initial court victories have been overturned on appeal. American Samoa's legislature and its delegate to Congress have expressed support of these appeals. So, American Samoans, through their elected representatives, apparently do not desire birthright U.S. citizenship and prefer the status quo.
A Non-Insular 'Territory': The District of Columbia
Often lumped into a discussion of the U.S. territories is the District of Columbia (DC). While it is a specially created federal enclave and not, strictly speaking, covered by the Insular Cases, it is informative to compare and contrast this territory with those far away island territories.
The District was created for the express purpose of being the seat of the Federal Government and host to the capital city. The Constitution authorized the creation of this District, to include areas ceded by existing states, for the purpose of housing the Federal Government in an area where no State could exert undue influence or authority over the Federal Government. Maryland and Virginia ceded land, though Virginia's cession (present day Arlington County and the city Alexandria) would revert back to it. Much like the other territories, the Constitution gave Congress authority over the District "To exercise exclusive Legislation in all Cases whatsoever." Congress passed an organic act and other legislation to allow for locally elected government, though Congress retains ultimately authority. The District has also be granted a non-voting delegate to the House of Representatives.
Quite unlike the insular territories, the District has always been an 'incorporated' territory since that area was ceded by Maryland and Virginia. Quite unlike any other territory in the U.S., the 23rd Amendment to the Constitution affords the District a wholly unique privilege in that for Presidential elections, the District participates in the Electoral College system with the number of electors that it "would be entitled to if it were a State, but in no event more than the least populous State,...considered for the purposes of election...appointed by a State." In other words, while citizens in the District have not voting representative in Congress, they can vote for President.
Today, the District is inhabited by approximately 700,000 U.S. citizens. From time to time, political arguments are made to admit the District as a State but this is legally questionable without further amendment to the Constitution. Statehood is also politically unlikely due to the fact that the residents of the District vote overwhelmingly for members of the Democratic Party, leaving Republican Party members in Congress with no desire to give Democrats an increase in the political balance of power, especially in the Senate.
The Current Political Disposition of the Insular Areas
Regardless of one's opinion on the Insular Cases, the doctrine of incorporated and unincorporated territories is Federal law. This allows for Congress, and the Supreme Court via case law, to establish whether or not the inhabitants have particular Constitutional protections or not, and to what extent. Congress has authorized territorial constitutions and territorial governments, or effectively allowed it in the case of American Samoa.
Many view the island territories of the U.S. as modern day colonies. Certainly they are possessions, greatly dependent upon the Federal Government, lacking full constitutional protections, and perhaps held even today for their military value. However, in each of these far flung island possessions, local elected government exists, as does various forms of support from the Federal Government plus military protection from the world superpower.
Much is made over the fact that citizens in these territories lack the ability to vote for President but more important is the lack of vote in Congress. The non-voting delegates of the territories may be able to speak in debates and participate in committees, but votes are what ultimately matter. And it is Congress that passes legislation, including funding bills. A President can make promises, sign orders, and do many things as the chief executive...until he lacks the funding that must be appropriated by Congress or he the authority to act is not permitted by law. This lack of a voting representative is understandable in the Senate as that is the place for the States to be represented as the sovereign States the comprise the federal Union. The lack of a voting representative in the House of Representatives, the "people's house", is quite perplexing except for the fact that the Constitution does not allow for it.
The reality is that the drafters of the Constitution did not envision a situation in which a territory filled with U.S. citizens would remain a territory in perpetuity. It was generally assumed that territories on the North American continent would be settled, mature as political entities, and eventually join the Union as States. It is therefore understandable that Constitution affords no special status to territories, provides for no representation in the Federal Government, and generally leaves it to Congress to decide how to manage them.
For the District, once the realization set in that a sizable population would reside in this non-State area, along with a persistent discontent over the lack of federal government participation, the 23rd Amendment was achieved to somewhat ameliorate the situation. For the Insular Areas, however, there is no such equivalent. While local democratic governance has been achieved in all of the territories, this remains subject to the will of Congress that can remove or alter the local governments by legislative act.
Potential Solutions
Having considered the territories, how the Insular Cases drive the legal and political framework in which they exist, and comparing and contrasting that with the District of Columbia, we are left with the question of what to do, if anything. That question is assuming, of course, that Americans are uncomfortable with the present status of the territories and their fellow U.S. citizens that reside there.
Statehood?
Frequently, the issue of statehood comes up. This has been especially true for the District of Columbia and Puerto Rico, but also for Guam. Arguments are made for and against statehood, but the underlying issues appear to be voting representation in Congress, a fairer status with more equal treatment for territorial residents, and an end to 'colonialism'. Unfortunately, achieving statehood can be a difficult challenge that is often tied to politically divisive issues. The U.S. has frequently added states in pairs of two so as to maintain the political balance of power, especially in the Senate.
The separate statehood movements across the territories and the District are not aligned in a way that would collectively convince the broader U.S. of their individual cases for statehood, nor do they address the inevitable concerns of the two major political parties. Statehood seems unlikely for any of the territories for the foreseeable future, so we must look to alternatives.
Representation?
Perhaps something other than statehood for territories could be crafted to provide for a more fair situation for the 3.5 million affected U.S. citizens? Considering the Insular Cases and the constitutional language regarding territories and the District, a constitutional amendment would be appropriate and necessary.
A Territorial Representation amendment would provide any territory meeting certain criteria with an allocation of seats in the U.S. House of Representatives as though the territory were a state. This would effectively convert the non-voting delegates into full fledged members of the House while adding additional seats where appropriate (i.e. Puerto Rico). The House of Representatives is the 'People's House', and therefore this change would be appropriate and maintain consistency with the original intent of that part of Congress.
As the Senate was conceived as the part of Congress where the States are represented on an equal footing with another, and the territories are inferior to the States as well being the possessions of the States collectively, the territories simply can not have Senators without undermining a fundamental aspect of U.S. Federalism.
What sort of territorial criteria would be appropriate in a Territorial Representation Amendment? Firstly, we would need to state the obvious that the territory is a 'territory' of the U.S., not belonging to any one of the States. Next, we would acknowledge Congress' authority while ensuring reasonable stability by requiring that the territory achieve organized, local governance as authorized by Congress. Finally, we would have to establish a threshold number of U.S. citizens in order to ensure that there is reasonable population size to warrant at least one House seat. Such an amendment would look something like this:
Any territory of the United States, not belonging to one of the States, that is organized with a republican form of government as authorized by Congress, and in which at least 100 thousand citizens of the United States reside, shall be apportioned representation in the House of Representatives as though the territory were a State.
The immediate effect would be that the District, Puerto Rico, and Guam would be allocated seats in the House of Representatives. The Northern Marianas and the U.S. Virgin Islands, with less than the needed 100 thousand citizens, would not meet the criteria. American Samoa, whose population is under the threshold but is also largely nationals, not citizens, would also not meet the criteria. Interestingly, the three areas that qualify are also the areas that have statehood movements, suggesting that their inhabitants are the ones most desiring voting representation.
The point of such an amendment is to enable the resident citizens in the territories with a means of participation in the Federal Government through an elected representative, just as they would have in any State. It is not meant in any way to alter the status of a territories compared to the States, and therefore the territories are not granted Senators in the Senate. The territories are also not provided any role in the Electoral College, nor could a territory's delegation participate in the selection of President in the House when candidates fail to achieve the requisite number of Electoral College votes. It is an adjustment that serves the People, not a change to the territories themselves.
Settling on a threshold is tricky given historical precedents on the one hand versus present day realities of Congressional representation on the other hand. There are several States that were added to the Union whose populations according to the nearest census at the time was in the range of 40K-60K citizens. The first instance of a threshold associated with any territory was when portions of the Northwest Territory were authorized to begin the process of attaining statehood upon reaching 60K inhabitants. Of course the population of the U.S. as a whole was much smaller in those times than today's 330M+, resulting in the average number of citizens represented per House member to be over 760K due to the number of representatives being capped at 435. The threshold number could be adjusted but raising it too much would effectively preclude all but Puerto Rico from qualifying. Lowering the threshold just to get in as many territories as possible would seem noble except that this is hard to justify given the current high number of constituents per congressional district.
For three of the overseas territories and the District, the political dynamic would change. Their residents’ representatives would have votes! These Representatives could even collaborate as a sort of territories caucus to address common concerns. The concerns of U.S. citizens in those areas would be better represented. And of course, new money would inevitably find its way to these new Congressional districts.
This outcome may seem somewhat unfair for the Northern Marianas and the U.S. Virgin Islands. The territories are simply small in terms of population. Some in the Northern Marianas may want to revisit the idea of uniting with Guam if representation is highly desired. The population of the Virgin Islands would need to return to its previous highs of over 100K, which seems unlikely today but is possible.
For American Samoa, this outcome would effectively change nothing and that may be just fine. If the people of American Samoa are fine with their status as nationals and fine with their current status with the U.S., then perhaps we should be fine too? Or perhaps what American Samoa should pursue is some other form of close relationship with the U.S. such as a compact of free association (COFA)?
Constitutional Rights?
Finally, let us also remember that per the Insular Cases, the U.S. Constitution is not necessarily in full force in the territories. To address this, we can again turn to an amendment (or augment the example given for representation). The text of such an amendment is far easier and rather straight forward:
This Constitution, being the Supreme Law of the Land, applies with full effect and force over the entirety of the United States of America, inclusive not only of the States but also all federal lands, territories, and other areas over which the Federal Government has sovereignty.
This would result in universal recognition of full constitutional rights everywhere within the complete territorial confines of the United States. The determination of which individual rights exist in the territories would no longer be a matter for judicial review, nor subject to Congressional approval. The resident citizens of the various insular territories would for the first time have the same civil liberties guaranteed by the Constitution as their counterparts residing in the States (and the District).
This would not remove Congress' authority to legislate over the territories, allowing for some differences in taxation, customs and immigration regimes, and other policies as may be appropriate among the various territories. So, local traditions and policies that are not incompatible with the Bill of Rights and other aspects of the Constitution could be accommodated.
Conclusion
We can therefore acknowledge that while the perpetual territories are not consistent with the intentions of the original framework of American Federalism, and also that the participation of District residents in the Electoral College still fails to satisfy, there are practical adjustments that can be made while staying true to the nature of the American Federal government and remaining respectful to the States that comprise the Union.
Attitudes and approaches towards the territories would certainly change. It is one thing when the Federal Government can operate with near impunity over an area; it is something altogether different when citizens can get their Congressional Representative involved. The current, stagnant state of affairs that exists between the Federal Government and each of the territories would be affected by a new political dynamic.
Constitutional amendments are no small feat, however. They are in fact intentionally difficult, ensuring that each change to the Constitution is met with broad appeal and support. The resident People of territories and the District would have to come together and lobby in junction with supporters among the States and in Congress to bring about such a fix to American Federalism.