Note: This is a revision of an article I originally wrote for Jean-Didier Hache's Quel Statut pour les Îles d'Europe? (What Status for Europe's Islands?) (Editions de l'Harmattan, Paris and Montreal: 2000; ISBN: 2-7384-9250-9).  The online version of that book, available at the EURISLES website, includes this revised version.

Introduction

The democratic dilemma

Changing the situation

Statehood

Amending the Constitution 

Changing political status

Compensating for inequality

Citizenship

Delegates to Congress

Local self-government 

Fundamental freedoms

Access to national courts

Relations with the national executive branch

Taxes, financial aid, and access to national programs and services

Trade preferences

Control of natural resources

A trust relationship?

Conclusion

Annotated links

American Samoa

Guam

The Northern Mariana Islands

Puerto Rico

The U.S. Virgin Islands

Endnotes

Introduction

The territories of Guam, the United States Virgin Islands, and American Samoa, and the Commonwealths of Puerto Rico and the Northern Mariana Islands are the principal overseas dependencies of the United States.¹ All are islands (or groups of islands), and each is economically less developed than any State of the United States.

The United States also asserts sovereignty over, and administers, a number of mostly tiny islands: Howland, Baker, and Jarvis Islands; Kingman Reef; and Johnson, Palmyra, Wake, and Midway Atolls, all in the Pacific; and Navassa Island in the Caribbean. These islands, which do not have permanent populations, are often referred to as "possessions".

Linked to the United States by "Compacts of Free Association" are the Federated States of Micronesia, the Republic of the Marshall Islands, and the Republic of Palau.² Each of these "freely associated states" retains national sovereignty—indeed, each is a member of the United Nations—but maintains a close economic and security relationship with the United States through the Compacts. Because of their sovereign status, the freely associated states are not further treated in this article.³

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The democratic dilemma

The territories and commonwealths of the United States challenge the democratic principles of the United States. Each of these jurisdictions—Puerto Rico, Guam, the U.S. Virgin Islands, American Samoa, and the Northern Mariana Islands—is governed under a different political arrangement (although the arrangements for Guam and the Virgin Islands are quite similar). But none enjoys full participation in the national political life of the United States. Although the United States is a representative democracy, the inhabitants of the territories and commonwealths do not have equal rights to participate in that democracy.

Full participation in the National Government of the United States depends not only on U.S. citizenship, but also on residence within one of the 50 States of the United States. None of the territories and commonwealths is within a State of the United States, so no U.S. citizen residing in a territory or commonwealth may fully participate in the National Government.

The fundamental document defining the powers of the National and State Governments is the Constitution of the United States, adopted in 1789. Under the Constitution, as amended over the years, three central premises help to define representative democracy in the United States. Only a U.S. citizen residing in a State is entitled to vote for:

The President of the United States, the head of the executive branch of the National Government;

Senators, who constitute the upper house of the national legislative branch, the U.S. Senate.

Representatives in the House of Representatives, the lower body in the legislative branch of the U.S. Government.

So, to vote for the President or for Senators and Representatives in the U.S. Congress, one must be a resident of one of the States. U.S. citizenship alone is not enough.

The judges of the national court system—the federal courts—are appointed by the President, with the advice and consent of the Senate.⁴ Since the residents of the territories and commonwealths do not help to choose the President or the Senators, they do not have a role in selecting the federal judiciary.⁵ Those residents are thus excluded from participation in the selection of the individuals who constitute the executive, legislative, and judicial branches of the National Government.

Although the United States was already administering its "Northwest Territory" when its Constitution came into effect, the Constitution does not address with very much specificity how areas not within a State are to be governed.⁶ The Constitution provides only that "the Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States . . . ."⁷ The courts of the United States have interpreted this language to give the Congress and, thereby, the National Government, full and complete legislative authority over the jurisdictions to which this "Territorial Clause" applies. In short, in those jurisdictions, the National Government has not only the powers it has within a State, but also the powers a State government would have.

Changing the situation

Statehood 

Most of the 50 States of the United States were territories at one time. Until the beginnings of the 20th century, territorial status was a stepping stone to Statehood. The expectation that each territory would eventually become a State came to an abrupt halt with the acquisition of Cuba, Puerto Rico, the Philippine Islands, and Guam in the Spanish American War and the annexation of the Hawaiian Islands at about the same time. Far away territories with different languages and cultures led to a new distinction in American law between "incorporated" territories, destined eventually to become States, and "unincorporated" territories, not destined for Statehood.

Puerto Rico is more populated than half of the 50 States and has a larger land area than the States of Rhode Island and Delaware. Puerto Rico is certainly populous enough to become a State, a status that would give U.S. citizens residing on that island equal rights of participation in the National Government. Many residents of Puerto Rico favor Statehood for the island, but many others oppose Statehood.

Statehood is not a realistic possibility for Guam, the U.S. Virgin Islands, American Samoa, and the Northern Mariana Islands in the near future. Each is much smaller, in population and in area, than the smallest State. There is no substantial political movement toward Statehood in any of these jurisdictions.

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Amending the Constitution 

As with many fundamental documents, the U.S. Constitution was intentionally made difficult to amend. Since the Constitution came into effect in 1789, it has been amended only 26 times, most recently in 1971.

Only Congress or the legislatures of the States can initiate the amendment process. The inhabitants of the overseas territories and commonwealths do not elect senators or representatives in the Congress and are not represented in any State legislature. To even start the amendment process is a near-insuperable obstacle for the inhabitants of the overseas territories and commonwealths.

By way of illustration, the proposed Equal Rights Amendment, to forbid the denial of equal rights under the law by the United States or by any State on account of gender, enjoyed widespread support and potentially affected a very large part of the national population. Although 35 States ratified the proposed amendment, ratification by 38 States was needed for it to come into effect, so it failed.

Even were the Constitution easy to amend and the residents of the States well disposed toward amendments to provide the residents of the territories and commonwealths with an equal role in the National Government, practical difficulties would remain. Puerto Rico is the largest of the overseas territories and commonwealths, both in area and in population. For Puerto Rico, an equal role in the National Government would be feasible. But, as noted above, American Samoa, Guam, the Northern Mariana Islands, and the U.S. Virgin Islands are all much smaller, both in area and in population, than any of the 50 States. Each Representative now elected to the U.S. Congress represents, on the average, 570,000 persons. The largest of the four smaller island jurisdictions, Guam, has a population of only 156,000. Providing Guam or any of the other three jurisdictions with a Representative would cause that jurisdiction to be grossly overrepresented in the House of Representatives. This overrepresentation would be even more pronounced were one of those four jurisdictions to be given representation in the U.S. Senate. Wyoming, the least populous State, has a population of 481,000, more than three times that of Guam.⁸

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Changing political status

An active debate has been taking place for some years in Puerto Rico and in the U.S. Congress over whether that island should become the 51st State of the United States, retain its current commonwealth status (perhaps with some enhancements), or become an independent nation. Statehood and commonwealth seem to attract approximately equal numbers of adherents, while independence has fewer partisans.

The Commonwealth of the Northern Mariana Islands became a full-fledged commonwealth of the United States only in 1986. While there is much debate on the various ramifications of commonwealth status, there is no active movement in the Northern Mariana Islands to alter the fundamentals of its political relationship with the United States.

For 15 years, the Territory of Guam has been seeking the approval of the U.S. Congress to change its status to that of commonwealth, but has failed to agree with Congress on the particulars of commonwealth status or the mechanics of changing status. It is unlikely that progress will be made in Guam's efforts until Puerto Rico's status is resolved, since Puerto Rico's commonwealth backers can claim an equitable entitlement to any benefits provided a Guam commonwealth. If the National Government grants any advantage to a Commonwealth of Guam not already enjoyed by the Commonwealth of Puerto Rico, it may be seen as attempting to influence the debate in Puerto Rico.

Political status issues do not appear to be prominent in the current political discourse in American Samoa or the U.S. Virgin Islands.

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Compensating for inequality

Except possibly for Puerto Rico, the territories and commonwealths of the United States will not become States at any time in the reasonably foreseeable future. Nor will the United States amend its Constitution to give the residents of territories and commonwealths equal participation in the National Government. Even more modest improvements in political status, such as the proposed Guam commonwealth, are unlikely to happen soon. And no improvement of political status, other than through Statehood or changes in the U.S. Constitution will put the residents of a territory or commonwealth on an equal footing with residents of the States in terms of participation in the National Government.

This institutional inequality does not mean, or at least does not have to mean, that the residents of the U.S. territories and commonwealths must resign themselves to unmitigated colonialism. The United States has developed a number of institutions to compensate for the lack of participation in the National Government. U.S. citizenship and nationality, nonvoting delegates to the U.S. House of Representatives, guarantees of fundamental freedoms and local self-government, access to the national court system, favorable tax treatment, trade advantages, and the availability of national services and benefit programs all serve to bind the territories and commonwealths to the United States. Local control over natural resources and holding the National Government to trusteeship standards can serve to counteract any accusation of colonialism.

Citizenship

Most residents of American Samoa are nationals of the United States, a status that offers most, but not all, of the rights of U.S. citizenship. The residents of the other territories and commonwealths are, for the most part, U.S. citizens at birth. Should a U.S. citizen resident in one of the territories or commonwealths relocate to a State of the United States, he or she will have all the rights that are enjoyed by any other U.S. citizen residing in that State, including the right to vote for State and national officials.

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Delegates to Congress

Puerto Rico, Guam, the U.S. Virgin Islands, and American Samoa each has a Delegate in the U.S. House of Representatives.⁹ The Delegate has the right to speak on the floor of the House of Representatives, but does not have a vote.^9a Delegates sit on legislative committees and are permitted to vote in the committee.^9b  The National Government pays the salaries and expenses of the Delegates.

The Northern Mariana Islands does not have a Delegate in the House of Representatives. The Commonwealth is represented in Washington, D.C., by a Resident Representative. The Resident Representative has no rights in the Congress other than those enjoyed by an ordinary citizen. Resident Representatives have been able nonetheless to exercise their persuasive powers with Congress on particular issues. The Resident Representative is an official of the Commonwealth Government, and the Commonwealth pays his or her salary and expenses. Many political leaders in the Northern Marianas support the establishment of a Delegate position for the islands.

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Local self-government 

Each of the territories and commonwealths elects its own governor and its own legislature, and has a local court system. American Samoa, Puerto Rico, and the Northern Mariana Islands each has its own constitution. The fundamental documents for Guam and the U.S. Virgin Islands are "Organic Acts," laws enacted by the U.S. Congress that establish the basic framework of government for each territory. (An Organic Act may be amended by the Congress without regard for a territory's wishes on the amendment.)

Most local governance in the territories and commonwealths is in the hands of locally elected officials.

A tension develops, however, in defining the line between the powers of the local government and those of the National Government. The tension often surfaces in debates over rules for determining the local applicability of laws enacted by the National Government.

The people of the United States are governed under a federal system. The powers of government are divided between the National Government and the governments of the 50 States of the United States. If the National Government infringes upon the rights of a State, the people of that State can challenge that infringement through their elected representatives in the legislative branch of the National Government, through their votes for the next chief executive of the National Government, or by legal actions brought before judges in whose appointment the residents of the State had a role. The inhabitants of the territories and commonwealths have no such redress. The right to self-government vouchsafed to the territories and commonwealths should thus be at least as extensive as that afforded the States, and perhaps more extensive, since the States have a much greater role in the national political process.

Because the actual balance of power greatly favors the National Government over the government of a territory or commonwealth, the insular areas have tried to obtain binding recognition by the National Government of the right to local self-government. The high-water mark to date has been provisions in the Covenant between the Northern Mariana Islands and the United States, that guarantee to the Northern Marianas the right to local self-government and provide that the right cannot be modified without the consent of the Government of the Northern Mariana Islands. The extent of that right, however, has been the subject of much debate and some litigation.

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Fundamental freedoms

U.S. law has long held that that fundamental freedoms set forth in the Bill of Rights—the first 10 amendments to the U.S. Constitution—restrict the actions of the National Government in the territories and commonwealths.^9b Which freedoms in the Bill of Rights are "fundamental", however, is not entirely clear: the right to free speech or to choose one's religion is clearly fundamental; the right to a jury trial is not.

The organic acts for Guam and the U.S. Virgin Islands and the constitutions of Puerto Rico, American Samoa, and the Northern Mariana Islands each also contain a bill of rights, protecting the fundamental freedoms of the citizenry against acts of the territorial or commonwealth government.

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Access to national courts 

There is a national court—known as a federal district court—in Puerto Rico, Guam, the U.S. Virgin Islands, and the Northern Mariana Islands. Federal district judges in Puerto Rico, like their counterparts in the States of the United States, have life tenure. The federal judges in Guam, the U.S. Virgin Islands, and the Northern Marianas serve terms of ten years. Those judges thus do not have the guarantee of independence afforded by life tenure.

American Samoa has no federal district court. The judges of its local court—the High Court of American Samoa—are appointed by the U.S. Secretary of the Interior.

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Relations with the national executive branch

Within the U.S. Department of the Interior is the Office of Insular Affairs. With the development of local self-government in the islands, the functions of the Office as a colonial office have gradually dwindled away. The Office describes its mission as the development of "more efficient and effective government in the insular areas by recommending policies, providing financial and technical assistance, and by strengthening Federal-insular relationships."

The Office often acts as an intermediary between island governments and the National Government. When the Congress is asked to spend money in the islands, the views of the Office are usually sought. Many islanders see the Office as overly critical of the island governments, lacking in perspective, and too influenced by its institutional history as wielder of authority over the island governments. But the Office does have an intermediary role, and other parts of the National Government often see the Office as overly sympathetic to the islanders. Most islanders will concede that the Office can be helpful in arranging technical assistance for island governments.

Puerto Rico, the largest of the territories and commonwealths, was able to break entirely the link with the Department of Interior with the adoption of its 1952 constitution, well before it achieved commonwealth status. The mission and activities of the Office of Insular Affairs do not extend to Puerto Rico at all.

The Commonwealth arrangement between the Northern Marianas and the National Government contemplated that all issues affecting the relations between the two entities would be the subject of consultations between special representatives appointed by the executive head of each government. Otherwise, the relations of the Commonwealth with the agencies of the National Government were entrusted to the Commonwealth's resident representative in the United States. The presidential proclamation that established the Commonwealth relationship, however, was accompanied by an executive order that gave the Department of the Interior and its Office of Insular Affairs¹⁰ the same powers in the Northern Marianas it exercised with respect to American Samoa, Guam, and the Virgin Islands. Northern Marianas leaders protested vociferously that the role assigned the Office was inconsistent with the new Commonwealth status, but to no avail.¹¹

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In general (and with a number of exceptions), U.S. citizens residing in the territories and commonwealths of the U.S. do not pay taxes to the National Government. For Guam, the Virgin Islands, and the Northern Mariana Islands, the principal national tax—the federal income tax—is imposed as a local income tax, with the proceeds going to the local government, not the National Government. American Samoa, by local law, has established a tax system "mirroring" the federal income tax, with proceeds collected by the Government of American Samoa. The federal income tax is not collected from U.S. citizens residing in Puerto Rico on income derived from local sources. Indeed, the prospect of paying federal income tax is why many Puerto Ricans oppose Statehood.

The territories and commonwealths receive substantial economic assistance from the National Government in the form of access to national benefit programs and services.¹²  The residents of the territories and commonwealths are not eligible, however, for all national benefit programs and services.

In some cases, the territories and commonwealths receive direct subsidies for public works and other infrastructure improvements or, in the case of American Samoa, even for the daily operations of the local government. Under the arrangement by which the Commonwealth of the Northern Mariana Islands became part of the United States, part of the consideration was the promise of the United States to provide specified amounts of aid to the new Commonwealth.¹³

Each of the territories and commonwealths is less wealthy than the poorest of the 50 States. That those who are denied participation in the National Government are also those who have the least economic development is uncomfortable. The Commonwealth of the Northern Mariana Islands is the juridiction which most recently came under the sovereignty of the United States. In the bargaining that led to this arrangement, the United States promised to assist the Northern Marianas "to achieve a progressively higher standard of living for its people as part of the American economic community and to develop the economic resources needed to meet the financial responsibilities of local government."¹⁴ Some may debate how well this promise has been fulfilled, but the principle seems indisputable—the National Government should assist the territories and commonwealths in reaching economic parity with the rest of the Nation, at least so long as the residents of the territories and commonwealths do not enjoy equal participation in the National Government.

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Trade preferences 

Puerto Rico is within the customs territory of the United States. Goods entering Puerto Rico from foreign countries are subject to U.S. duties; goods entering the United States from Puerto Rico are not subject to U.S. duties.

The other territories and commonwealths are outside the U.S. customs territory: Foreign goods entering those territories and commonwealths are not subject to U.S. import duties, but goods entering the States of the United States from the territories and commonwealths are subject to U.S. import duties. The U.S. tariff schedules, however, allow products of the territories and commonwealths to enter U.S. customs territory duty-free so long as more than a specified percentage of the value of the product is derived from local materials. The percentage varies from 50% to 70%, depending on the product. Complex "rules of origin" prevent foreign goods from obtaining duty-free status by shipment through a territory or commonwealth without a "substantial transformation" taking place.¹⁵

The value of the trade preference the United States accords the goods of the territories and commonwealths, of course, declines as the United States moves toward freer trade through the North American Free Trade Agreement, the World Trade Organization, and other international agreements. In addition, territories and commonwealths that too successfully exploit their ability to export to U.S. markets without paying duty may find themselves under political fire from their U.S. competitors. A watch industry on Guam was destroyed by the imposition of quotas on its exports, and the growth of a similar industry in the U.S. Virgin Islands was stymied. The successful apparel industry in the Northern Mariana Islands is currently under heavy attack by its competitors in the United States.

U.S. citizens from the 50 States may establish businesses in any of the territories and commonwealths. U.S. business firms may similarly engage in commerce in the territories and commonwealths. The governments of the territories and commonwealths may not impose restrictions on U.S. businesses beyond those imposed on local residents. The principal exception to this general rule is that, in American Samoa and the Northern Mariana Islands, individuals and businesses that are not indigenous may not purchase land. They may, however, lease it for up to 55 years.

U.S. and foreign investment is generally welcomed in the U.S. territories and commonwealths. Local entrepreneurs currently receive no significant legal protection from competition from foreigners or from U.S. citizens from the 50 States.

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Control of natural resources 

The control of natural resources is increasingly an issue between the National Government and the governments of the territories and commonwealths. Islanders, by definition, live close to the sea and many depend, directly or indirectly, upon the ocean for their livelihoods. Under international law, the national claim of a 200-mile exclusive economic zone is effective against other nations in the international arena. Some officials of the National Government assert, however, that the national claim in the international arena forecloses claims to resource rights by the peoples of the territories and commonwealths who have traditionally exploited these waters.

The backers of commonwealth status for Guam seek control over the resources of the exclusive economic zone surrounding that island. The Commonwealth of the Northern Mariana Islands is currently litigating its rights to the marine resources surrounding its islands against the National Government.¹⁶

Islanders lacking an equal role in the political processes of the National Government should retain control over their local resources, including the marine resources of the exclusive economic zone.¹⁷

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A trust relationship?  

A fundamental notion in United States (and international) jurisprudence is that, whenever a "discrete and insular minority"¹⁸ does not have full access to the political processes that establish governmental policy, the government owes an especial standard of care in its dealings with that minority. In United States law, this notion has most often found expression in court decisions dealing with the relations between the National Government and Native Americans. In the international arena, the idea finds expression in Article 73 of the United Nations Charter and in the international trusteeship system.

The principle has been applied many times for the benefit of Native Americans, who for the most part are U.S. citizens and citizens of a State and who have the same right to participate in the State and National Government as any other citizen of the State. The principle should be applied with even greater force in favor of the residents of the territories and commonwealths who, as discussed above, do not have that same right of participation in the National Government.

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Conclusion

In U.S. history, the status of "territory" traditionally led eventually to Statehood. Territories were embryonic States, and were thus treated as inferior to States. Their inhabitants had correspondingly fewer rights. But if territories, and their younger brother commonwealths, are not intended for Statehood, the justification—such as it was—for treating them as inferiors disappears. American Samoa, Guam, the Northern Mariana Islands, and the U.S. Virgin Islands are not likely to become States in the near future; even Puerto Rico may have to wait many years, assuming it decides that Statehood is its goal. These jurisdictions should not be treated as inferior to the States, but as different entities with different—and sometimes greater—rights and privileges. Anything less is inconsistent with the United States' role as one of the world's bulwarks of democracy.

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Annotated links:

The Office of Insular Affairs in the U.S. Department of Interior provides basic fact sheets about the commonwealths, territories, and possessions of the United States and the freely associated states, at:

http://www.doi.gov/oia/Firstpginfo/islandfactsheet.htm

Many (but not all) of the laws of the United States having to do with the territories and commonwealths are found in title 48 of the United States Code. A searchable text of title 48 may be found at:

http://www.law.cornell.edu/uscode/48/

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The Delegate to the U.S. House of Representatives from American Samoa, Eni F.H. Faleomaveaga, has collected documents on the relationship between the United States and that territory at:

http://www.house.gov/faleomavaega/historical.shtml

U.S. laws primarily affecting American Samoa are found at:

http://www4.law.cornell.edu/uscode/48/ch13.html

The Economics Department of the Bank of Hawaii publishes excellent economic overviews of Pacific islands nations and dependencies. The overview for American Samoa may be found at:

https://www.boh.com/econ/512_803.asp#2

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The Guam Organic Act and other U.S. laws primarily affecting Guam are found at:

http://www4.law.cornell.edu/uscode/48/ch8A.html

The Government of Guam website is a good place to start looking for information about that islands, at:

http://ns.gov.gu/

The Bank of Hawaii economic overview of Guam is found at:

https://www.boh.com/econ/reports/pacGU9910.pdf

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The basic document the relationship between the Commonwealth and the United States is the Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States of America. The text of the Covenant may be found at

http://www.cnmilaw.org/covenant.htm

The Constitution of the Northern Mariana Islands is set out at:

http://www.cnmilaw.org/constitution.htm

U.S. laws primarily affecting the Northern Mariana Islands are found at:

http://www4.law.cornell.edu/uscode/48/ch17.html

A good entry point for the information on the Commonwealth of the Northern Mariana Islands is the Saipan Datacom home page at:

http://www.saipan.com/

The Bank of Hawaii's economic overview of the Northern Marianas is found at:

https://www.boh.com/econ/reports/pacCNMI9910.pdf

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A useful entry portal for law and politics in Puerto Rico, with links to the principal political parties, is:

http://Welcome.toPuertoRico.org/index.shtml

Resident Commissioner for Puerto Rico in the U.S. House of Representatives Luis Fortuño sets out basic facts about Puerto Rico's history and its relationship with the United States at:

http://www.house.gov/fortuno/district.htm 

See also the website of former Resident Commissioner for Puerto Rico in the U.S. House of Representatives Aníbal Acevedo-Vilá, which may still be viewed in the Internet Archive, at:

       http://web.archive.org/web/20040203182640/http://www.house.gov/acevedo-vila/xp/eng/puertorico.htm

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The Revised Organic Act for the U.S. Virgin Islands and other U.S. laws primarily affecting the U.S. Virgin Islands are found at:

http://www4.law.cornell.edu/uscode/48/ch12.html

Other, mostly older, U.S. laws primarily affecting the U.S. Virgin Islands are found at:

http://www4.law.cornell.edu/uscode/48/ch7.html

The Government of the U.S. Virgin Islands maintains a website at:

http://www.usvi.org/

The Delegate to the U.S. House of Representatives for the Virgin Islands, Donna M. Christian-Christensen, has published a brief history of the U.S. Virgin Islands at:

http://www.house.gov/christian-christensen/vihist.htm

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Endnotes