Decolonize or Remain Unincorporated

By: Robert A. Underwood, EdD
Understanding Unincorporated Status
Robert Underwood petitions on Guam’s behalf at the UN, 1982. Courtesy of Dr. Robert A. Underwood.

“We shall overcome because the arc of the moral universe is long but it bends toward justice.”
Dr. Martin Luther King Jr., 1968 

U.S. territories today are colonies. They have no future and not much of a past. They were acquired as property or through conquest. They are creations of the U.S. Congress and  arguments over their future as entities is frustratingly confused with the individual futures of U.S. citizens from those territories. Since Congress has no real desire to construct a future for the territories, there isn’t much chance that things will change. But there may be a glimmer of hope with the current Biden-Harris Administration.

The view from the territories doesn’t seem to add much clarity. We have the Commonwealth of Puerto Rico, which has a status that looks like a promotion over unincorporated territory status. But at the end of the day, Puerto Rico is another territory similar to the rest. There is the Commonwealth of the Northern Mariana Islands, which is governed by a covenant. Its existence seems to be based on more than a law but not quite a treaty. In reality, it was formed on the basis of a public law. The CNMI has exemptions for land alienation and a process to discuss differences over the implementation of the Covenant. But at the end of day, it is really an unincorporated territory as well. The significant difference is that they appeared to have voted themselves into that status. In an interesting way, they volunteered to be a colony under certain conditions. 

American Samoa has a Treaty of Cession with the United States and the luxury of being basically left alone. Neither the federal government nor the local government are inclined to rock the boat. They continue to operate under a status quo which makes the treaty appear more substantial than it actually is. American Samoa is an unincorporated territory with very little movement towards change. It seems that only Samoans who live outside the territory are willing to push the envelope. In opposition to most political leaders in American Samoa, some U.S. mainland Samoans continue to litigate for birthright U.S. citizenship.

 Guam and the U.S. Virgin Islands are the closest to understanding their real situation and apparently are willing to act on it. But there are other substantive issues with these two territories. The issue of self-governance and self-determination do not completely overlap. Who gets to determine the future of these political entities is at once a historical and a justice issue. Do we go back to the point of acquisition and ask the people who were sold or conquered into this status about the future they want for themselves? We can still identify who was sold and who was conquered. If we are really struggling to rid the world of colonialism, we have to deal with that central issue. Who is the self in self-determination? If interested, Congress can support indigenous self-determination and they should.

All of these entities are affected by the U.S. Supreme Court decisions from the turn of the 20th century which created the “territorial incorporation doctrine.” In reality, the Insular Cases justified Congressional plenary authority over territories with no path to statehood. There is no promise, implied or otherwise, that anything approaching full integration into the United States would apply to these territories. They are outside entities who will remain in this situation until Congress decides otherwise and there are pretty much no limitations on Congressional authority except as they pertain to individual rights. Congress cannot deny personal constitutional rights to U.S. citizens in the territories even as the territories themselves are a creation of Congress. I will try to separate these claims on Congressional power because they lead to some confusion about the ultimate objective of seeking political status change, equality and self-determination. They sound alike, but are quite different.

But first, let’s deal with the racism that was used to justify “unincorporation.” Historically, the same Supreme Court that justified "separate but equal" (segregation of the races in public accommodations) in Plessy v. Ferguson ruled in the Insular Cases. In particular, the most prominent judgement came from Justice Henry Billings Brown for both the Insular Cases and Plessy v. Ferguson. In the matter of the territories, there was no pretense of separate, but equal. You were unequal and that is where you stood. The justification was that the overseas territories were “inhabited by alien races, differing from us in religion, customs … and modes of thoughts.” They would therefore be difficult to govern “according to Anglo-Saxon principles.”

Recently, House Resolution 279, introduced in the House of Representatives in the first session of the 117th Congress, took on the “territorial incorporation doctrine.” Introduced by Rep. Raul Grijalva, Chair of the Natural Resources Committee, it was co-sponsored by all the territorial Delegates and Resident Commissioner (Plaskett, Sablan, San Nicolas, Gonzalez-Colon) except Del. Radewagen from American Samoa. The resolution asserts that the Insular Cases decisions are “contrary to the text and history of the United States Constitution” and rest on “racial views and stereotypes” which should be rejected. I doubt that anyone would argue on behalf of the racial stereotypes, although I suspect that there are Members of Congress who still believe them to be true. Some think that inhabitants of the territories are actually alien races who do not deserve equal treatment or apparently foreign aid. 

At the end of the resolution (which as of the date of this publication had been referred to the House Committee on the Judiciary and the Committee on Natural Resources), the House of Representatives resolves that America’s constitutional and democratic principles apply to the States and territories. Interestingly, “territories” are in lower case in the resolution. The House also formally rejects the racial views, the application of the Insular Cases to all present and future cases and controversies involving the application of the Constitution. They may resolve that, but only litigation could actually make that happen. That is, unless the Congress wants to pass legislation which would test the limits of the “territorial incorporation doctrine.”
H. RES. 279

Acknowledging that the United States Supreme Court’s decisions in the Insular Cases and the “territorial incorporation doctrine” are contrary to the text and history of the United States Constitution, rest on racial views and stereotypes from the era of Plessy v. Ferguson that have long been rejected, are contrary to our Nation’s most basic constitutional and democratic principles, and should be rejected as having no place in United States constitutional law.

Whereas the territorial incorporation doctrine established by the Insular Cases is still used to perpetuate the second-class treatment of Americans living in the territories, from the denial of citizenship, to the denial of voting rights, to the denial of equality in Federal benefits programs; and

Whereas the time has come to expressly reject the Insular Cases as both contrary to the Constitution’s text and history and as incompatible with our Nation’s core values: Now, therefore, be it

Resolved, That the House of Representatives—

(1) recognizes that America’s constitutional and democratic principles apply throughout the United States, including both States and territories;

(2) acknowledges that the Insular Cases are contrary to the text and history of the Constitution;

(3) acknowledges that the Insular Cases are relics of the racial views of an earlier era that have no place in our Nation today; and

(4) rejects the Insular Cases and their application to all present and future cases and controversies involving the application of the Constitution in United States territories.

-- Excerpts from House Resolution 279, 117th Congress (2021-2022). Read the full text of the resolution here:  https://www.congress.gov/bill/117th-congress/house-resolution/279

Absent in the “resolved” clause are some of the “whereas’s” which include a reference to “second-class treatment of Americans living in the territories” from the denial of citizenship, voting rights and equality in Federal benefit programs. If the resolution resolved to make any of those things actually happen, then we could expect that some real changes are up for discussion. Seen from 9,000 miles away, it sounds like a rejection of racism, but not necessarily the arrangements which flow from the original decisions of the Supreme Court.

Formally castigating the rhetoric behind the Insular Cases does not create citizenship equality. If Congress wanted to extend equality in benefits to all U.S. citizens, it could do so through legislation in this term. It could be litigated and that could formally eliminate the doctrine. The Congress doesn't have to wait for Schaller vs. U.S. Social Security Administration or United States vs. Vaello-Madero to get to the Supreme Court. The Guam case (Schaller) has been paused to await resolution of the Puerto Rico case (Vaello-Madero) to get to the Supreme Court. The Congress can statutorily extend SSI to Puerto Rico and other unincorporated territories now and demonstrate that they stand for the principle of equal benefits for all U.S. citizens. 

Taking a shot at historical racists like Justice Brown from the early 20th century is easier than summoning the will to create citizenship equality in the 21st century.

This  brings us to “first-class treatment.” There are lots of grievances which individuals feel as they may move back and forth between the unincorporated world and the incorporated world. Supplemental Security Income benefits are lost and gained. Voting for President is lost and reclaimed depending upon the direction of your journey. Is the objective here to end the inequity of territorial status and the continuation of colonialism? Or is the objective to approximate the same benefits as incorporated Americans? 

These are not necessarily the same objective. The end of colonialism is the extension of self-determination which enters into a political status  based upon the consent of the governed. This is the core American creed denied to the colonies. National policy seems to agree that U.S. citizens in the territories should be assisted and they should get certain benefits, but they cannot be given consent of the governed. Granting "consent of the governed" will end colonialism and be consistent with the general trajectory of American history moving along Martin Luther King's arc of moral justice.

On the other hand, Congress could just move to extend more and more benefits and grant equal access to federal programs. While this may make life more bearable as a colony, we would still be a colony. Since the pursuit of “first-class treatment” and “self-determination” frequently use the historical rhetoric of Justice Brown as a jumping off point, the two seem similar. My concern is that if we allow the pursuit of "first-class treatment" to be the primary objective, we will be colonies for a much longer time.

But we are in a new era. We may be at a liminal moment in which a number of justice issues will be dealt with by the Biden-Harris Administration. Justice comes in spurts and it rarely comes from Congress. In American politics, it flows from Presidential leadership. As the new administration considers issues of racial justice, indigenous rights, climate change, economic equality, we must make our case for de-colonization. It must be stated clearly and unequivocally. Before deciding whether we are going to ride first class or coach, we must decide whether we want to board that airplane. That is an apriori decision that must not be avoided. Decolonize first.
Understanding Unincorporated Status