Incorporated and unincorporated territories

San Juan skyline, with a large, old white building in the foreground


Congress decides whether a territory is incorporated or unincorporated. The U.S. Constitution applies to each incorporated territory (including its local government and inhabitants) as it applies to the local governments and residents of a state. Incorporated territories are considered to be integral parts of the U.S., rather than possessions.

The U.S. Supreme Court, in its 1901–1905 Insular Cases, ruled that the constitution extended to U.S. territories. The court also established the doctrine of territorial incorporation, in which the constitution applies fully to incorporated territories (such as the territories of Alaska and Hawaii) and partially in the unincorporated territories of Puerto Rico, Guam and, at the time, the Philippines (which is no longer a U.S. territory).

In the 1901 Supreme Court case Downes v. Bidwell, the court said that the U.S. Constitution did not fully apply in unincorporated territories because they were inhabited by "alien races".

The U.S. had no unincorporated territories (also known as overseas possessions or insular areas) until 1856. Congress enacted the Guano Islands Act that year, authorizing the president to take possession of unclaimed islands to mine guano. The U.S. has taken control of (and claimed rights on) many islands and atolls, especially in the Caribbean Sea and the Pacific Ocean, under this law; most have been abandoned. It also has acquired territories since 1856 under other circumstances, such as under the Treaty of Paris (1898) which ended the Spanish–American War. The Supreme Court considered the constitutional position of these unincorporated territories in Balzac v. People of Porto Rico, and said the following about a U.S. court in Puerto Rico:

The United States District Court is not a true United States court established under article 3 of the Constitution to administer the judicial power of the United States ... It is created ... by the sovereign congressional faculty, granted under article 4, 3, of that instrument, of making all needful rules and regulations respecting the territory belonging to the United States. The resemblance of its jurisdiction to that of true United States courts, in offering an opportunity to nonresidents of resorting to a tribunal not subject to local influence, does not change its character as a mere territorial court.:312

In Glidden Company v. Zdanok, the court cited Balzac and said about courts in unincorporated territories: "Upon like considerations, Article III has been viewed as inapplicable to courts created in unincorporated territories outside the mainland ... and to the consular courts established by concessions from foreign countries ...":547 The judiciary determined that incorporation involves express declaration or an implication strong enough to exclude any other view, raising questions about Puerto Rico's status.

In 1966, Congress made the United States District Court for the District of Puerto Rico an Article III district court. This (the only district court in a U.S. territory) sets Puerto Rico apart judicially from the other unincorporated territories, and U.S. district judge Gustavo Gelpi express the opinion that Puerto Rico is no longer unincorporated:

The court ... today holds that in the particular case of Puerto Rico, a monumental constitutional evolution based on continued and repeated congressional annexation has taken place. Given the same, the territory has evolved from an unincorporated to an incorporated one. Congress today, thus, must afford Puerto Rico and the 4,000,000 United States citizens residing therein all constitutional guarantees. To hold otherwise, would amount to the court blindfolding itself to continue permitting Congress per secula seculorum to switch on and off the Constitution.

In Balzac, the court defined "implied"::306

Had Congress intended to take the important step of changing the treaty status of Puerto Rico by incorporating it into the Union, it is reasonable to suppose that it would have done so by the plain declaration, and would not have left it to mere inference. Before the question became acute at the close of the Spanish War, the distinction between acquisition and incorporation was not regarded as important, or at least it was not fully understood and had not aroused great controversy. Before that, the purpose of Congress might well be a matter of mere inference from various legislative acts; but in these latter days, incorporation is not to be assumed without express declaration, or an implication so strong as to exclude any other view.

In 2018, the United States Court of Appeals for the 7th Circuit upheld the District Court decision in Segovia v. United States, which ruled that former Illinois residents living in Puerto Rico, Guam, and the U.S. Virgin Islands did not qualify to cast overseas ballots according to their last registered address on the U.S. mainland. (Residents of the Northern Marianas and American Samoa, however, were still allowed to cast such ballots.) In October 2018, the U.S. Supreme Court declined to review the 7th Circuit's decision.

In analyzing the Insular Cases, Christina Duffy Ponsa of the New York Times said the following: "To be an unincorporated territory is to be caught in limbo: although unquestionably subject to American sovereignty, they are not considered part of the United States for certain purposes but not others. Whether they are part of the United States for purposes of the Citizenship Clause remains unresolved."note

The specifications of 22 USC 611 (m) show that the United States may have additional territories under military jurisdiction.

Supreme Court decisions about current territoriesedit

The 2016 Supreme Court case Puerto Rico v. Sanchez Valle ruled that territories do not have their own sovereignty. That year, the Supreme Court declined to rule on a lower-court ruling in Tuaua v. United States that American Samoans are not U.S. citizens at birth.

Supreme Court decisions about former territoriesedit

In Rassmussen v. U.S., the Supreme Court quoted from Article III of the 1867 treaty for the purchase of Alaska:

"The inhabitants of the ceded territory ... shall be admitted to the enjoyment of all the rights, advantages, and immunities of citizens of the United States ..." This declaration, although somewhat changed in phraseology, is the equivalent ... of the formula, employed from the beginning to express the purpose to incorporate acquired territory into the United States, especially in the absence of other provisions showing an intention to the contrary.:522

The act of incorporation affects the people of the territory more than the territory per se by extending the Privileges and Immunities Clause of the Constitution to them, such as its extension to Puerto Rico in 1947; however, Puerto Rico remains unincorporated.

Alaska Territoryedit

Rassmussen arose from a criminal conviction by a six-person jury in Alaska under federal law. The court held that Alaska had been incorporated into the U.S. in the treaty of cession with Russia, and the congressional implication was strong enough to exclude any other view::523

That Congress, shortly following the adoption of the treaty with Russia, clearly contemplated the incorporation of Alaska into the United States as a part thereof, we think plainly results from the act of July 20, 1868, concerning internal revenue taxation ... and the act of July 27, 1868 ... extending the laws of the United States relating to customs, commerce, and navigation over Alaska, and establishing a collection district therein ... And this is fortified by subsequent action of Congress, which it is unnecessary to refer to.

Concurring justice Henry Brown agreed::533–4

Apparently, acceptance of the territory is insufficient in the opinion of the court in this case, since the result that Alaska is incorporated into the United States is reached, not through the treaty with Russia, or through the establishment of a civil government there, but from the act ... extending the laws of the United States relating to the customs, commerce, and navigation over Alaska, and establishing a collection district there. Certain other acts are cited, notably the judiciary act ... making it the duty of this court to assign ... the several territories of the United States to particular Circuits.

Florida Territoryedit

In Dorr v. U.S., the court quoted Chief Justice John Marshall from an earlier case::141–2

The 6th article of the treaty of cession contains the following provision: "The inhabitants of the territories which His Catholic Majesty cedes the United States by this treaty shall be incorporated in the Union of the United States as soon as may be consistent with the principles of the Federal Constitution and admitted to the enjoyment of the privileges, rights, and immunities of the citizens of the United States ..." This treaty is the law of the land and admits the inhabitants of Florida to the enjoyment of the privileges, rights, and immunities of the citizens of the United States. It is unnecessary to inquire whether this is not their condition, independent of stipulation. They do not, however, participate in political power; they do not share in the government till Florida shall become a state. In the meantime Florida continues to be a territory of the United States, governed by virtue of that clause in the Constitution which empowers Congress "to make all needful rules and regulations respecting the territory or other property belonging to the United States".

In Downes v. Bidwell, the court said: "The same construction was adhered to in the treaty with Spain for the purchase of Florida ... the 6th article of which provided that the inhabitants should 'be incorporated into the Union of the United States, as soon as may be consistent with the principles of the Federal Constitution'.":256

Southwest Territoryedit

Justice Brown first mentioned incorporation in Downes::321–2

In view of this it cannot, it seems to me, be doubted that the United States continued to be composed of states and territories, all forming an integral part thereof and incorporated therein, as was the case prior to the adoption of the Constitution. Subsequently, the territory now embraced in the state of Tennessee was ceded to the United States by the state of North Carolina. In order to ensure the rights of the native inhabitants, it was expressly stipulated that the inhabitants of the ceded territory should enjoy all the rights, privileges, benefits, and advantages set forth in the ordinance of the late Congress for the government of the western territory of the United States.

Louisiana Territoryedit

In Downes, the court said:

Owing to a new war between England and France being upon the point of breaking out, there was need for haste in the negotiations, and Mr. Livingston took the responsibility of disobeying his (Mr. Jefferson's) instructions, and, probably owing to the insistence of Bonaparte, consented to the 3d article of the treaty (with France to acquire the territory of Louisiana), which provided that "the inhabitants of the ceded territory shall be incorporated in the Union of the United States, and admitted as soon as possible, according to the principles of the Federal Constitution, to the enjoyment of all the rights, advantages, and immunities of citizens of the United States; and in the meantime they shall be maintained and protected in the free enjoyment of their liberty, property, and the religion which they profess." 8 Stat. at L. 202. This evidently committed the government to the ultimate, but not to the immediate, admission of Louisiana as a state ...:252

Comments

Post a Comment

Popular posts from this blog

Minor Outlying Islands

Image
The United States Minor Outlying Islands are small islands, atolls and reefs. Palmyra Atoll, Baker Island, Howland Island, Jarvis Island, Johnston Atoll, Kingman Reef, Midway Atoll and Wake Island are in the Pacific Ocean, and Navassa Island is in the Caribbean Sea. The additional disputed territories of Bajo Nuevo Bank and Serranilla Bank are also located in the Caribbean Sea. Palmyra Atoll (formally known as the United States Territory of Palmyra Island) is the only incorporated territory, a status it has maintained since Hawaii became a state in 1959. The status of several territories is disputed. Navassa Island is disputed by Haiti, Wake Island is disputed by the Marshall Islands, Swains Island (a part of American Samoa) is disputed by Tokelau, and Bajo Nuevo Bank and Serranilla Bank (both administered by Colombia) are disputed by Colombia, Jamaica, Honduras, and Nicaragua. They are uninhabited except for Midway Atoll, whose approximately 40 inhabitants are employees of the U.S
Read more

Public image

Image
In The Not-Quite States of America , his book about the U.S. territories, Doug Mack said: It seemed that right around the turn of the twentieth century, the territories were part of the national mythology and the everyday conversation   ... A century or so ago, Americans didn't just know about the territories but cared about them, argued about them. But what changed? How and why did they disappear from the national conversation? The territories have made us who we are. They represent the USA's place in the world. They've been a reflection of our national mood in nearly every period of American history. Organizations such as Facebook view U.S. territories as not being part of the United States—instead, they are viewed as equivalent to foreign countries. In response to Facebook's view, former Guam representative Madeleine Bordallo said, "It is an injustice that Americans living in the U.S. territories are not treated as other Americans living in the states. ... Tr
Read more

Territories of the United States

Image
Territories of the United States are sub-national administrative divisions overseen by the United States government. The various U.S. territories differ from the U.S. states and Native American tribes in that they are not sovereign entitiesnote (each state has individual sovereignty alongside the federal government; each federally recognized tribe possesses limited tribal sovereignty as a "dependent sovereign nation"). Territories are classified by incorporation and whether they have an "organized" government through an organic act passed by the Congress. U.S. territories are under U.S. sovereignty and, consequently, may be treated as part of the United States proper in some ways and not others. Unincorporated territories in particular are not considered to be integral parts of the United States, and the Constitution of the United States applies only partially in those territories. The U.S. currently administers three territories in the Caribbean Sea and eleven
Read more