By Howard Hills
Territories and D.C. have different status and rights than states. If Greenland or Panama Canal somehow become joined with U.S. in the future, what status model would apply?
On January 4, the nonvoting delegate from the U.S. Virgin Islands in the U.S. Congress made headlines asking the House Parliamentarian why no votes from territories and D.C. were counted in electing a new Speaker of the House. The Parliamentarian blithely noted that House Rules do not include members from five current unincorporated territories or D.C. in the roll call on final passage of federal laws.
Of course, over 3.5 million Americans in Puerto Rico and smaller communities in four other remote “unincorporated” island territories are not disenfranchised by House rules alone. Rather, the Constitution does not enfranchise Americans who are not eligible to vote for democratic representation in Congress and Electoral College as legal residents in a state of the union.
Why don’t territories have equal citizenship rights?
The dilemma for equal citizenship rights in unincorporated territories is a series of inconsistent and inconclusive U.S. Supreme Court rulings from 1901 to 2022 known as the Insular Cases. In that line of judicial decisions the courts invented the “non-incoporation” status to enable Congress to decide when ready on a future status for each of these territories.
Instead, the provisional “unincorporated” status defined by the court has persisted for the last five such territories over 125 years. As the delegate from Virgin Islands correctly observed, “What was supposed to be temporary effectively now has become permanent.”
To understand, one can turn to Obama-appointed U.S. Supreme Court Justice Elena Kagan, who wrote one of the most recent SCOTUS opinions confirming that our territories are defined by a status without the same rights as states. In Puerto Rico v. Sanchez Valle (2016), Kagan’s opinion for the court affirms the judicial branch created “unincorporated” territory status to fill a vacuum left by Congressional failure to define the status of Puerto Rico more clearly in 1901. That ruling ended consistent application of the “incorporated territory” status model to Puerto Rico and four other territories, ending as to those territories the anti-colonial Northwest Ordinance tradition which led 32 “incorporated” territories to become states between 1796 and 1959.
Consequences of the Insular Cases
Instead, as applied selectively without logic, the entirely court-invented “unincorporated territory” doctrine often has created democratic disarray for Americans. First, in Puerto Rico, where adoption of a democratic constitution in 1952 did not end the legal ambiguity of non-incorporation. That was followed by American Samoa, which was happy with the 1960 local constitution as revised in 1967, until 2022 when lawsuits brought by outside lawyers against the wishes of the elected leaders threatened self-determination rights of the majority that was not seeking to end unincorporated status. The opposite occurred for the Northern Mariana Islands after adopting its constitution in 1976, when the territory claimed entitlement to powers and rights beyond the understanding in Congress and the courts about how to preserve non-incorporation doctrine under the Insular Cases.
Indeed, in the Sanchez opinion, Kagan concluded for the court that the territorial power of Congress under the Constitution requires that Congress must now sort out the ambiguous political status limbo that the courts created since 1901. In her words, the path to any territorial status solution leads “…to the steps of Congress.”
The ultimate solution
In the modern era, the causes of disarray and solutions for each island territory differ, and D.C. is a federal city issue, not a territorial law issue. The ultimate solution for the five unincorporated territories is for Congress to confirm and codify what it accepts as the law of the Insular Cases, and in so doing restore government by consent through a statutory mechanism for Congress and each territory to continue or end territorial status based on local self-determination on options compatible with the U.S. Constitution.
As for D.C. as the seat of national government, we are approaching a time almost two centuries since Alexandria, VA, ended its non-enfranchisement as part of D.C. by returning the civilian community to the state of Virginia. That is a constitutionally normative if not politically popular option for the D.C. neighborhoods ceded by Maryland if statehood fails. Under the territorial clause power of Congress, that same option also could work for any territory that freely chooses mutually agreed integration with an existing state.
Restoration of government by consent on terms agreed by Congress also commends itself since 57% of voters among 3.2 million Americans in Puerto Rico voted for statehood in 2024, evoking the Northwest Ordinance principles that redeemed the U.S. from the vestiges of early 20th century imperialism. Meanwhile, neither the U.S. Virgin Islands nor Guam territories have even adopted a local constitution as authorized by Congress in 1978, indicating to some observers that the status quo is more tolerable locally than status change.
The exception, meanwhile, is American Samoa, at the crossroads of the Pacific where the U.S. is being challenged by China. That territory just wants its people who are U.S. nationals to have the option of citizenship by choice while residing in the states. Otherwise, Americans in that most distant island territory stand with the U.S. strategically, and just want to be allowed by Washington to preserve their local traditional way of life as America promised in 1900 and 1904 agreements for sovereign integration of the island people and America.
Lessons for Greenland and Panama
If Greenland or Canal Zone are really in play, those peoples will need to learn the lessons of the Insular Cases for the U.S. territories, and the true nature of the Compact of Free Association for independent small nations affiliated with the United States. The first lesson is that sovereignty, nationality, democracy and equal rights of citizenship are a package deal. Because dualities of status are unsustainable, any status that does not give the people the option of a pathway to full and equal democracy and self-determination will fail to deliver on the promise of freedom and opportunity.
Howard Hills has served as an adviser and counsel on territorial law under Carter, Reagan, Bush (41), Trump and Biden, including as lead counsel on territorial status and the Compact of Free Association in the Executive Office of the President, National Security Council and State Department.
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