The Problem with Unincorporated Territories

The United States has had at least 40 territories over the past few hundred years. Like the Oklahoma Territory or the Louisiana Territory, lands owned by the U.S. but not within a state that are populated by U.S. citizens have a temporary status as a U.S. territory while waiting to become a state. Once it was ready, each territory would apply for statehood and in due time it would become a state — like Oklahoma and Louisiana, to name just 2 of 32 that have become states.

There is a court-created idea a territory classified by federal law as “unincorporated” is different from territories that are “incorporated” and waiting for statehood. But any territory status, incorporated or unincorporated, is constitutionally temporary, subject to the power of Congress to decide a permanent status.

It is a little confusing trying to define what is the same and what is different about the two general categories of territories: incorporated and unincorporated. One way to look at it is that an incorporated territory has only one intended option and that is to become a state. In comparison, for unincorporated territories statehood is one of two options to acquire a permanent constitutionally defined status, and the other alternative to territorial status is nationhood.

The first report of the President’s Task Force on Puerto Rico’s Status in 2005 stated that “unincorporated” territories are not on the path to statehood. That is true only with regard to current unincorporated territories too small and demographically not capable of being viable as states. That would make nationhood the only options for these small unincorporated territories.

A dilemma arises in that territories too small to be states typically may be too small to be nations, making temporary and less than fully democratic unincorporated territory status the only viable option. For these territories seeking to be made a part of an existing state is one possibility. But that would mean giving up the institutions of territorial government, not to achieve nationhood or statehood, but to achieve the status of a county within a state. Finally, it also can be noted that some very small islands once ruled by the U.S. consistent with U.N. Charter provisions have become nations with treaties of association to the U.S. rather than being U.S. territories.

A large and populated territory that could be a state or nation but is still unincorporated is in a difficult position: Congress has not yet decided the status it will have when territorial status ends. Puerto Rico is the last U.S. territory in that category.

That is a fairly understandable definition of the political status defined by Congress as the political branch of government with express territorial powers. But until territorial status ends, the best legal definition of an unincorporated territory is one the federal courts handed down, in which the courts decided the U.S. Constitution does not apply directly in unincorporated territories, even if populated by U.S. citizens, because it is not yet known if the territory will become a state or a separate nation.

The court cases that adopted this definition of unincorporated territory have created a lot of confusion by also ruling that “fundamental rights” apply to U.S. citizens in unincorporated territories, but leaving Congress to decide what that means on a case by case basis with no clear or consistent standards.

The court-invented distinction between incorporated territories on the path to statehood and those deemed “unincorporated” originally applied only to newly-acquired island territories with non-citizen populations. This doctrine for temporary governance of such territories ceased to be consistent with U.S. democratic values once Congress conferred U.S. citizenship on the population. Today Puerto Rico is the only current territory ready for statehood, and the only territory in which the U.S. citizens have voted to end territorial status and seek statehood.

All territories, whether deemed incorporated or unincorporated, could remain territories indefinitely if Congress does not exercise the power to change their status. So the distinction between the two has to be understood in light of whether the territory is ready for transition to a fully democratic status as a state or a nation.

U.S. territorial law and policy is inconsistent and unpredictable for federal officials and people in the territory because the courts and Congress have never clearly defined what “fundamental rights” apply to U.S. citizens in the territories classified as “unincorporated” and therefore outside the U.S. Constitution.

As a result, Puerto Rico has remained unincorporated for 114 years, longer than any other territory with a U.S. citizen population in our history. This has created confusion and debate about the current territorial status and the options for securing equal rights of U.S. citizenship in Puerto Rico.

We should not accept the anti-demoncratic notion that Puerto Rico is an unincorporated territory as an excuse for Puerto Rico’s continued uncertain status. Declaring Puerto Rico an unincorporated territory provided an excuse to leave Puerto Rico’s status unresolved. It never offered an explanation or a justification for leaving millions of people in the position of second class citizens without equal rights.

En Español