Human Rights & Democracy
Posted on December 24, 2024 at 12:00 AM
by Jane Nicholson
This brief inquiry gives weight to the consequences of the U.S. holding territories. Four of the five U.S. territories currently held were acquired by treaty following the Spanish-American War of 1898; the fifth territory comprises the three Virgin Islands purchased from Denmark, finalized in 1917. Also in 1898, the U.S. annexed Hawaii through the toppling of the Hawaiian monarchy; the fifth territory ceded to the U.S. by Spain, the Philippine Islands, gained independence in 1946. At that time, the U.S. held four territories in the West: Arizona, New Mexico, and the Indian and Oklahoma territories, which were later combined to become the state of Oklahoma. . Policy on the territories reflects to this day some of the expansionist and supremacist views of that prior era.
To consider these matters, we must look at the Insular Cases, a set of Supreme Court cases decided in 1901 concerning the status of the current five territories. Recent calls to reconsider these cases is seemingly motivated by heated status debates within the territories. Indeed, status is the key territorial issue: The Supreme Court ruled that “a territory is acquired to become a State and not to be held as a colony and not be governed by Congress with absolute authority,” which did not preclude some support for “taking territories at will.”
The debates around the territories were fundamental ones: Does the Constitution speak only to residents of the states or to all the people, including those in the territories? Another key factor was the U.S. determination early on to achieve commercial supremacy, thereby driving land, labor, and natural resource appetites. Issuing of currency, tariffs, and taxation have affected the insular possessions on the economic front. Currently, withheld benefits such as Supplemental Security Income and Aid to Families with Dependent Children (lower levels) are affected by status. Puerto Rico was driven into deep debt largely by the 1976 IRS Section 936 regarding tax-free corporate benefits for those operating on the island.
The seeming resolution to these territorial matters—“incorporation”—endures through today. Territories acquired by treaty were to be incorporated by the U.S., but political will fell
short and the debates of 1901 found that the territories were not prepared for becoming states. The debates were fractious, often laboratories for political experimentation, and sometimes resulting in extreme views such as the call for extermination of Puerto Ricans (Rhoads, 1930). All five territories are deemed “organized unincorporated,” which means they are self-governing, have birthright citizenship (except for Guam), cannot vote in federal elections, and have nonvoting congressional representation, which differs among the territories. Puerto Rico is foremost among the territories, due to its 90% of territorial inhabitants and contributing more to the federal treasury than six states.
However, the benefit of considering all five territories means a return to the basic issue of status. In a recent essay, “The Shame of the Territories,” (Maurer School of Law Research Paper Series, Bloomington, Indiana, #458, 2021) shame comes into play when a nation cannot approximate its own moral ideals. It seems time to reimagine from a more pluralistic and democratic view what forms of status can be—from free association to statehood to independence—for each of the territories in full consultation with their residents on a level playing field of public education.