“Foreign in a Domestic Sense”: U.S. Territories and “Insular Areas”

A new administration has opened a new window of opportunity in Puerto Rico’s longstanding campaign for statehood. In late February, Representative Darren Soto, a Florida congressman of Puerto Rican descent, introduced a proposal in the House to grant Puerto Rico full statehood. This comes on the heels of a referendum last November in which 52 percent of Puerto Rican voters voted in favor of statehood for the island. Proponents of statehood hope to take advantage of the current Democratic majority in Congress to advance this decades-long initiative—but this process raises the question: Why does the U.S. have territories at all? And how do territories and their residents differ in status from states?

After achieving its “manifest destiny” of coast-to-coast territorial control on the continent in 1848, the U.S. turned its attention to the seas. It modeled itself after the empires of Western Europe, targeting islands from which the U.S. could control key waterways. It acquired Puerto Rico, Guam and the Philippines from Spain in 1898, took possession of Samoa in 1900, annexed Hawaii in 1898, and purchased the Virgin Islands from Denmark in 1917.

However, this departure from the mainland brought with it a departure in policy as well. Unlike the territories of New Mexico, Oklahoma, and Arizona, which had a clear pathway to statehood and permanent membership in the United States, these new islands—which are still referred to as the “insular areas”—had a murkier status back in Washington. The U.S. was quick to claim the lands (and waterways) as part of its sovereign territory, but less quick to claim their peoples as its citizens.

In the early 1900s, in a series of decisions referred to as the “Insular Cases,” the U.S. Supreme Court ruled that because the islands were “inhabited by alien races, governing them according to Anglo-Saxon principles may be for a time impossible.” The court found them to be “foreign in a domestic sense,” and as such, the U.S. Constitution did not fully apply in these areas. A later ruling in 1922 found that certain “fundamental rights” were automatically in effect across all territories, but did not specify what those rights were, leaving it up to future courts to rule on individual protections—such as the right to trial by jury—on a case-by-case basis.

The result is a patchwork of uneven constitutional protections across the five remaining territories of Puerto Rico, Guam, the U.S. Virgin Islands, American Samoa and the Northern Mariana Islands. Residents of some territories are U.S. citizens by birth; others are not. The Commerce Clause of the Constitution applies in certain territories and not in others. Residents of some territories have a right to a trial by jury under the U.S. Constitution; others do not. It all comes down to each territory’s unique relationship with Congress and the rights afforded to each one by statute or by court ruling.

In addition, the U.S. has a unique relationship with a set of three Pacific island nations: The Republic of the Marshall Islands, the Federated States of Micronesia and the Republic of Palau. All three were administered by the U.S. from 1947 to 1978 as a part of the Trust of Territory of Pacific Islands (TTPI). While they have each since secured their independence, all three maintain Compacts of Free Association with the U.S., which allows the U.S. “unlimited access to [their land] and waterways for strategic purposes.” In exchange, the U.S. provides their governments with financial and technical assistance and grants their citizens unrestricted movement to and from the U.S.

The following provides a brief overview of each territory, its history and its current relationship to the mainland.

Puerto Rico:

The U.S. acquired Puerto Rico from Spain in 1898, as a part of the Treaty of Paris at the conclusion of the Spanish-American War. In 1900, Congress passed legislation setting up a civilian government under the leadership of a governor and executive council, both appointed by the U.S. president. Initially, Congress declared residents of Puerto Rico to be Puerto Rican citizens under U.S. protection, but in 1917, Congress granted U.S. citizenship to Puerto Ricans and provided for Puerto Rico to send a non-voting representative to Congress. In 1947, Congress voted to permit Puerto Ricans to elect a governor in 1948, and in 1950, Congress voted to authorize Puerto Ricans to organize a constitutional convention and become an independent commonwealth, free of any direct U.S. administration. Puerto Rico is the only territory to have its own federal district court, made up of seven judges who are nominated by the U.S. president, confirmed by the Senate, and serve lifetime appointments. Decisions in this district court are appealable to the First Circuit.

Despite being the insular area that is closest to the U.S. mainland geographically, Congress and the courts have been hesitant to recognize Puerto Ricans’ constitutional protections. In 1901, the U.S. Supreme Court found that the Uniformity Clause of the Constitution did not apply in Puerto Rico because it was not part of the United States. This ruling then paved the way for a ruling in 1922 that the Sixth and Seventh Amendments to the Constitution, which grant the right to a trial by jury in criminal and civil cases, did not apply. The most recent ruling on Puerto Rico’s status, in 1980, found that the Commerce Clause of the U.S. Constitution also did not apply to Puerto Rico.

As U.S. citizens, Puerto Ricans do have the right to travel freely between the U.S. and Puerto Rico. If they take up residence in a state and register there as voters, they can vote in all federal, state and local elections there. However, while residing in Puerto Rico, they are not eligible to vote in federal elections. For this reason and others, there has been a growing push for statehood for Puerto Rico in recent years.

U.S. Virgin Islands:

The U.S purchased the U.S. Virgin Islands from the Denmark in 1917 for $25 million, while the United Kingdom retained authority over the neighboring British Virgin Islands. The U.S. government initially administered the U.S. Virgin Islands through the U.S. Navy, with the U.S. president appointing a Naval Officer to serve as governor. In 1931, the U.S. brought the islands under the administration of the Department of Interior and transferred executive authority to a civilian governor, although this governor continued to be appointed by the U.S. president, rather than through local elections, until 1968. In 1927, Congress granted birthright citizenship and a variety of other constitutional protections to residents of the islands, and in 1972, they provided for the islands to send a non-voting delegate to Congress.

Guam:

The U.S. acquired Guam from Spain in 1898, as a part of the Treaty of Paris at the conclusion of the Spanish-American War, and placed it under the jurisdiction of the U.S. Navy. It continued to be governed by the Navy until 1950, when Congress passed the Organic Act of Guam. This legislation granted Guam residents birthright citizenship and established a bill of rights, while providing for a civilian government led by a governor appointed by the U.S. president. In 1968, Congress voted to allow Guam residents to elect their own governor, and in 1972, they provided for the island to be represented by a non-voting delegate in Congress.

Northern Mariana Islands:

The U.S. became a trustee of the Northern Mariana Islands in 1947, when the United Nations asked the U.S. to administer a group of Pacific islands, known as the Trust of Territory of the Pacific Islands (TPPI), in the aftermath of World War II. Unlike the other islands in the TPPI, which sought independence from the U.N. and the U.S., the Northern Mariana Islands pushed for permanent political association with the U.S. The Northern Mariana Islands achieved the status of a U.S. territory in 1976 through an act of Congress, which also allowed the territory to adopt its own constitution and form its own independent government. Congress also awarded U.S. citizenship to residents of the Northern Mariana Islands in 1986. Northern Mariana Island residents have a liaison to the U.S. government but do not have a representative in Congress.

American Samoa:

The 1899 Tripartite Convention provided for the partition of the Samoan Islands, with the U.S. receiving what is now American Samoa and Germany receiving what is now the independent nation of Samoa. The U.S. claimed Tutuila, the largest American Samoan island, as a territory in 1900 when local chiefs ceded it to the U.S. The U.S. gradually added six additional islands and coral atolls to the territory over the next three decades. In 1929, Congress ratified a treaty with the Samoan chiefs, formally ceding all seven Samoan islands and atolls to the U.S. The islands were placed under the governance of the U.S. Navy until 1956 when the Department of Interior took over administration of them.

Unlike the other four territories, Congress has never extended birthright citizenship or self-governance to residents of American Samoa, leaving Samoans with a unique status as U.S. nationals. This status allows them to move freely to and from the continental U.S. but does not allow them to vote in U.S. elections or hold elected office, even when residing in one of the 50 states. Their passports also carry a unique label distinguishing them as U.S. nationals, without full citizenship rights. Samoans are eligible to apply for naturalization once they have established residency in a U.S. state, but must file the appropriate paperwork, pay the filing fee, pass the citizenship test and take part in an oath ceremony, just like immigrants seeking to naturalize.

In the case of Fitisemanu v. United States, a U.S. district court found in 2019 that it is unlawful to categorize Samoans as U.S. nationals and required all Samoans to be granted birthright citizenship. The U.S. federal government has appealed the decision to the U.S. Court of Appeals for the 10th Circuit and the district court’s decision has been stayed pending the outcome of the appeal.

The Compacts of Free Association:

As discussed above, the United Nations placed a group of Pacific islands under the trusteeship of the U.S. in the aftermath of World War II. This group included what is now the Northern Mariana Islands, the Republic of the Marshall Islands, the Federated States of Micronesia and the Republic of Palau.

The U.S. governed all four countries under the trusteeship from 1947 to 1978, after which the Northern Mariana Islands became a U.S. territory, and the Republic of the Marshall Islands, the Federated States of Micronesia and the Republic of Palau began to negotiate their independence from the U.S. Today, the latter three are independent sovereign countries but maintain Compacts of Free Association with the U.S. that allow the U.S. unfettered access to their lands and waterways for strategic purposes. In exchange, the U.S. offers their governments financial and technical support, and provides their citizens with unrestricted movement to and from the U.S.

The Compacts provide the citizens of the Marshall Islands, Micronesia and Palau with a unique status in the U.S. They have automatic work authorization, but they are not classified as immigrants and lack a pathway to citizenship. They are also ineligible for most federal benefits, including SNAP (food stamps), TANF (cash assistance) and Medicaid. Certain states with high populations of migrants from Compact countries have opted to fund services and assistance for these populations using state funds. This has proved challenging, as the number of Compact migrants in the U.S. has grown by 68 percent since 2009. Migration is expected to increase in the coming decades as sea level rise renders population centers on these islands uninhabitable.

All three Compacts have been renewed once. The Compact with the Marshall Islands and Micronesia will need to be renewed in 2023, and the Compact with Palau will need to be renewed in 2024.

 

The National Immigration Forum would like to thank Emily Linn, policy intern, for her extensive contributions to this article.

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