The Ambiguous Status of the U.S. Insular Territories

Article excerpt

Joseph E. Fallon' Rye, New York

The author surveys the anachronistic constitutional status of the diverse U.S. insular "territories" and finds that these vary widely many of them having been granted extra-Constitutional privileges superior to those possessed by the states of the Union.

Key Words: U.S. Territories, U.S. Constitution, U.S. Nationality, International Treaties

Historically, a U.S. territory was a land with a population too small and scattered to govern itself as a state and therefore was administered by the federal government. But most importantly, a U.S. territory was considered to be, above all else, a temporary status. Based upon the principles of the Northwest Ordinance of 1787 principles implemented by the federal administrations of George Washington, John Adams, Thomas Jefferson and James Madison States were to be carved out of existing territories and admitted to the Union on the basis of equality with existing states. This was the case with the Old Northwest Territory, the Old Southwest Territory, Louisiana Territory, Oregon Territory, and Mexican Cession.

Since a territorial status was temporary, territories which did not become States either became independent countries - Cuba in 1903 and the Philippines in 1946 - or were transferred, in whole or in part, to a foreign power. For example, the northwest portion of the Louisiana Territory (1818),2 the northeast portion of the State of Maine (1842),3 the northern half of the Oregon Territory (1846),4 and one-third of the Alaskan panhandle (1903)5 were transferred to the United Kingdom; Okinawa (1972) was transferred to Japan,6 and the Panama Canal and the Canal Zone Territory (1978) were transferred to Panama.' (See Table 1, "Final Status of Territories Not Achieving Statehood.") However, these historical principles have not been applied to the present-day U.S. territories.

Today's Insular Territories

As a result of the Spanish-American War of 1898, the United States acquired territories, such as Cuba and the Philippines, which were deemed unlikely to become States because they were geographically remote and/or their cultures differed significantly from that of the United States. To determine the administrative status of such possessions, the U.S. Supreme Court promulgated the "doctrine of incorporation" in a series of rulings between 1901 and 1922 known as the "Insular Cases." According to these court decisions, the U.S. Constitution does not fully apply to a U.S. territory until it has been "incorporated" into the Union. However, the Court never precisiely defined when "incorporation" might be deemed to have occurred. While the "doctrine of incorporation" granted Congress vast powers to administer U.S. territories, it did not alter the temporary nature of a territorial status, and did not recognize any permanent political status other than Statehood.

All this changed when Congress radically altered the political structure of the United States, first with Puerto Rico in 1952, then with the creation of the United Nations Strategic Trust Territory of the Pacific Islands in 1986. Claiming the power, under the "doctrine of incorporation" and Article IV, Section 3 (2) of the U.S. Constitution, "to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States", Congress replaced the well-defined Union of States - by which each State, regardless of territorial size, population, or date of admission, possessed equal powers - with a ambiguous political system. The "Union" now consists of a political collation of entities of unequal power, comprising the 50 States and a hierarchy of eight territories. This is illustrated in Chart 1, "The General Legal Categories Constituting the Hierarchical Political Structure of the USA."

The Political Hierarchy within the U.S. Territories

The U.S. territories consist of (in descending order of political power): three "free associations", the Federated States of Micronesia, the Marshall Islands and Palau, whose inhabitants are citizens of their respective republics, not the United States; two "commonwealths", Puerto Rico and the Northern Marianas, whose inhabitants are U. …