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Home , Department of Alaska, District of Alaska, Federated state, Territory of Alaska

(1898 –Present)

GUSTAVO A. GELPÍ

© 2018 All rights reserved. “The has always governed its and possessions separately from its states. During the past two centuries , the legal regime applicable to the territories has evolved in a patchwork ad hoc fashion, with Congress responding to the unique and individual needs of each , sometimes with sensitivity and sometimes with indifference or insensitivity . . . . Each of these island communities have demonstrated the ability to exercise local self . They each have a mature and lively political structure in which the basic values of fairness and full opportunities for participation are maintained at the local level. They each have unique cultures that should be allowed to develop in ways that are true to their traditions. In terms of their subservience to the Congress and the federal agencies, however, they are still .”

The Evolving Legal Relationship Between the United States and Its Affiliated U.S.‐Flag Islands, Jon M. Van Dyke, University of Hawai’i Review 2 The Declaration of Independence “WE hold these Truths to be self‐evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness.”

3 Territorial Clause “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.”

U. S. Const. Art. IV, Section 3

4 1789 Northwest Ordinance  Congress appointed Governor and Judges for territory  Established civil rights for territory  When population exceeded 5,000 adult males, voters could elect legislature and send non‐voting delegate to Congress  When territory or division reached population of 60,000 it could petition for statehood

5 1867 ‐ Purchase  30, 1867: United States signed a treaty with to purchase Alaska for $7.2 million (“Seward’s Folly”).  October 18, 1867: Transfer ceremony in Sitka  Alaska added 586,412 square miles of new territory.  The government of Alaska was designated:  (1867 – 1884), under the of:  US Army (1867 –1877)  US Treasury (1877 –1879)  US Navy (1879 – 1884)  of Alaska (1884 –1912)  (1912 – 1959)  of Alaska (1959 –Present)

6 1898

 Hawai`i   Philippines

7 Subsequently Acquired

 American Sãmoa (1899)  Guantánamo Bay (1903) (by lease)  (1904) (by treaty)  U. S. Virgin Islands (1917)  Commonwealth of the (CNMI) (1976)

8 Unorganized U.S. Territories with no Permanent Population (Under the Jurisdiction of the Departments of Defense and Interior)  1898  1856  Howard Island 1858  1856  1959  1860  1899  1867  1858 9 “Holding His End Up” by Fred Morgan Philadelphia Inquirer (1898)

10 “[itwouldbeunwise]togivethehalf‐civilized Moros of the Philippines, or the ignorant and lawless brigands that infest Puerto Rico... the benefits of the .”

Simeon E. Baldwin, Yale Law Professor and co‐founder of the ABA, The Constitutional Question Incident to the Acquisition and Government by the United States of Island Territories, 12 Harv. L. Rev. 393, 401 (1899)

11 “The Filipinos, who [are] Asiatics, Malays, negroes and of mixed blood have nothing in common with us and centuries cannot assimilate them…They can never be clothed with the rights of American citizenship nor their territory be admitted as a State of the American Union.”

Statement of U. S. Representative Thomas Spight of , 33 Cong. Rec. 2105 (1900)

12 “[B]eware of those mongrels of the East, with breath of pestilence and touch of leprosy. Do not let them become part of us with their idolatry, polygamous creeds and harem habits.”

Statement of U. S. Senator William B. Bate of , 33 Cong. Rec. 3616 (1900)

13 “I think it is proper for us to take anything we want on the face of the earth.”

Representative James Beauchamp Clark of 1898

14 “Howcanweendureourshame,whena Chinese Senator from Hawai`i, with his pig‐tail hanging down his back, with his pagan joss in his hand, shall rise from his curule chair and in pidgin English proceed to chop logic with George Frisbie Hoar or Henry Cabot Lodge.”

Statement of U. S. Representative James Beauchamp Clark of Missouri, Congressional Record June 14, 1898 p. 6019

15 “We are a conquering race.” U. S. Senator Albert Beveridge of (1898)

16 “God has not been preparing the English‐speaking and Teutonic peoples for a thousand years for nothing but vain and idle self‐contemplation and self‐admiration. No! He has made us the master organizers of the world to establish a system where chaos reigns. He has made us adept in government that we may administer government among savage and servile peoples.”

Statement of U. S. Senator Albert Beveridge of Indiana, 56 Cong., I Sess pp 704 – 712 (January 9, 1900)

17 “We need Hawai'i just as much and a good deal more than we did . It is .”

Statement of President William McKinley to his personal secretary George Cortelyou H. Wayne Morgan, William McKinley and his America 225

18 “In our treatment of the Filipinos we have acted up to the highest standard that has yet been set as marking the proper way in which a powerful and advanced nation should treat a weaker people.”

President Theodore Roosevelt speech at Methodist Episcopal Church celebration of the African Diamond Jubilee, DC (January 18, 1909)

19 “The rude fierce settler who drives the savage from the land lays all civilized mankind under his debt” Theodore Roosevelt, The Winning of the West, Vol 1 (1899)

20 “Besides acting in good faith, we have acted with good sense, and that is also important. We have not been frightened or misled into giving to the people of the island (Puerto Rico) a form of government unsuitable to them. While providing that the people should govern themselves as far as possible,wehavenothesitatedin their own interests to keep the power of shaping their destiny.”

President Theodore Roosevelt Address at Hartford Coliseum, (August 22, 1902)

21 "We cannot sit huddled within our own and avow ourselves merely an assemblage of well‐to‐do hucksters who care nothing for what happens beyond. . . . [I]f we are to hold our own in the struggle for naval and commercial supremacy, we must build up our power without our borders. We must build the Isthmian canal, and we must grasp the points of vantage which will enable us to have our say in deciding the destiny of the oceans of the east and west."

Theodore Roosevelt (Chicago 1897)

22 "Those contemptible little creatures in Bogota ought to understand how much they are jeopardizing things and imperiling their own future".

President Theodore Roosevelt (1903) (upon Colombian Senate's rejection of Treaty to build Panama Canal) 23 “The flag cannot stand for the benevolent policies of an administration. It stands for more permanent things ‐‐ for things that changing administrations have no power tochange.Isitnotinthenatureofamockerytoraisethe flag in Porto Rico and bid its hopeful people hail it as an emblem of emancipation, while the Governor we have sent them reads a proclamation, from the foot of the staff, announcing the absolute power of Congress over them ?”

Benjamin Harrison, Former US President (1901)

24 U. S. Supreme Court’s Doctrine of Territorial Incorporation

 Constitution fully applies • Guarantees of  Destined for statehood “fundamental” personal rights apply • Not destined for Statehood 25 “It is obvious that in the of outlying and distant possessions grave questions will arise from differences of race, habits, and customs of the people, and from differences of soil, climate and production, which may require action on the part of Congress that would be quite unnecessary in the annexation of contiguous territory inhabited only by people of the same race or by scattered bodies of native Indians.” Downes v. Bidwell, 182 U.S. 244, 282 (1901)

26 I’m just I need to the Justice maintain the Senator 5‐4 majority prescribed

27 “Congress has thought that a people like the Filipinos, or the Porto Ricans, trained to a complete judicial system which knows no juries, living in compact and ancient communities, with definitely formed customs and political conceptions... In making Porto Ricans American citizens,... is the desire to put them as individuals on an exact equality with citizens from the American homeland, to secure them more certain protection against the world, and to give them an opportunity, should they desire, to move into the United States proper, and there without naturalization to enjoy all political and other rights.” Balzac v. Porto Rico, 258 U.S. 298, 310‐ 311 (1922)

28 “[Puerto Rico is a] distant ocean communit[y] of a different origin and language from those of our continental people.” Balzac v. Porto Rico, 258 U.S. 298, 311 (1922)

29 “Alaska was a very different case from that of Porto Rico. It was an enormous territory, very sparsely settled, and offering opportunity for immigration and settlement by American citizens. It was on American continent and within easy reach of the then United States. It involved none of the difficulties which incorporation of the Philippines and Porto Rico presents.”

Balzac v. Porto Rico, 258 U.S. 298, 309 (1922)

30 “Congress, shortly following the adoption of the treaty with Russia, clearly contemplated the incorporation of Alaska into the United States as part thereof, we think plainly results from the act of July 20, 1868, concerning internal revenue taxation, and the act of July 27, 1868 , extending the laws of the United States relating to customs, commerce and navigation over Alaska... Indeed... the status of Alaska as an incorporated territory was and has been recognized by the actions and decisions of this court. By the 6th section of the judiciary act of March 3, 1891, it was made the duty of this court to assign the several territories of the United States to particular circuits; and in execution of this law this court, by an order promulgated May 11, 1891, assigned the territory of Alaska to the ninth judicial circuit." Rassmussen v. United States, 197 U.S. 516, 523 (1905) 31 “The right to suffrage is not a personal and fundamental right and, therefore, the [Nineteenth] Amendment as framed is not in force in Porto Rico. The right of suffrage, therefore, is a noble right, or ought to be so; but is not a [fundamental] right. It is a political right. The [Puerto Rico] Legislature has not conferred upon women the right to vote in this Island...”

Morales v. Board of Registration, 33 P.R.R. 76 (1924)

32 “[W]e are now informed that Congress possesses powers outside of the Constitution, and may deal with new territory, acquired by treaty or conquest, in the same manner as other nations have been accustomed to act with respect to territories acquired by them. In my opinion, Congress has no existence and can exercise no authority outside the Constitution. Still less is it true that Congress can deal with new territories just as other nations have done or may do with their new territories. This nation is under the control of a written constitution, the supreme law of the land and the only source of the powers which our government, or any branch or officer of it, may exert at any time or at any place. Monarchical and despotic , unrestrained by written , may do with newly acquired territories what this government may not do consistently with our fundamental law. To say otherwise is to concede that Congress may, by action taken outside of the Constitution, engraft upon our republican institutions a colonial system such as exists under monarchical governments. Surely such a result was never contemplated by the fathers of the Constitution.” Downes v Bidwell, 182 U.S. 244, 379‐380 (1901) (Harlan, J. dissenting) 33 "It must be remembered that Congress, in the government of the territories as well as of the District of Columbia, has plenary power, save as controlled by the provisions of the Constitution; that the form of government it shall establish is not prescribed, and may not necessarily be the same in all territories. We are accustomed to that generally adopted for the territories, of a quasi , with executive, legislative and judicial officers, and a legislature endowed with the power of local taxation and local expenditures; but Congress is not limited in this form. In the District of Columbia it has adopted a different mode of government, and in Alaska still another. It may legislate directly, in respect to the local affairs of a territory, or transfer the power of such legislation to a legislature elected by the citizens of the territory." In re Annexation of Slatersville to of Fairbanks, 83 F. Supp. 661 (1949)(District Court, Territory of Alaska, Fourth Division) 34 “Congress has complete and plenary authority to legislate for an unincorporated territory such as the [Panama] Canal Zone, pursuant to Article IV section 3 Clause 2 of the Constitution, empowering it to dispose of and make all needful rules and regulations respecting the territory or other property belonging to theUnitedStates.Intheexerciseofsuchplenary powers Congress may freely delegate its legislative authority to such agencies as it may select"

United States v. Husband, 453 F.2d 1054 (5th Cir. 1971)

35 “Although described as a commonwealth, the relationship is territorial in nature with full vested in the United States, and plenary legislative authority vested in the United States Congress. The authority of the latter is limited in a few areas through U.S. federal restraint, i.e., by approval of the Covenant, the US government will agree not to exercise its authority in certain areas. The essential difference between the covenant and the usual territorial relationship (e.g. that with Guam) is the provision in the Covenant that the Marianas constitution and governmental structure will be a product of a Marianas constitutional convention, which follows the pattern of Puerto Rico, and not an of the US Congress. Of particular significance, the Marianas commonwealth relationship, unlike the governmental structure of Guam or the Virgin Islands cannot be amended or terminated unilaterally by the US Congress.”

S. Rep. No. 433, 9th Cong., 1st Sess. 15 (1975 ).

36 Statement of President General Ford (1976)

It is an important occasion. First, it is a significant step in carrying out our obligations under the United Nations Trusteeship Agreement which has been the basis of the United States' administration of these islands since 1947. Second, it confirms our national commitment to the principle of self‐determination by honoring the freely expressed wishes of the peoples of these islands for with the United States. And third, the joining together of all of the Marianas under one flag and one common citizenship represents the first major addition to United States territory in the Pacific since 1898. History will show that this action has been in clear response to the persistent desires of the Marianas people to become permanently associated with the United States ‐‐ a desire recorded formally through resolutions, referendums and petitions to the United Nations and to the United States dating as far back as 1950. History will also show that the negotiations leading to the Covenant were conducted in an open and highly democratic fashion, and that the Covenant's provisions are responsive to the wishes of both the people of the Northern Mariana Islands and the Congress of the United States.

Available at: https://www.fordlibrarymuseum.gov/library/document/0055/1669264.p df 37 The NMI argues that its political status is distinct from that of unincorporated territories such as Puerto Rico. This argument is credible. Under the trusteeship agreement, the United States does not possess sovereignty over the NMI. As a commonwealth, the NMI will enjoy a right to self‐government guaranteed by the mutual consent provisions of the Covenant. See supra, note 9. No similar guarantees have been made to Puerto Rico or any other territory.

Thus, there is merit to the argument that the NMI is different from areas previously treated as unincorporated territories. We need not decide this issue because the independent force of the Constitution is certainly no greater in the NMI than in an unincorporated territory. Com. of N. Mariana Islands v. Atalig, 723 F.2d 682, 691 n. 28 (9th Cir. 1984) (Sneed, J.)

38 At the outset, we emphasize that “the authority of the United States towards the CNMI arises solely under the Covenant.” The Covenant has created a “unique” relationship between the United States and the CNMI, and its provisions alone define the boundaries of those relations. Commonwealth of the Northern Mariana Islands v. Atalig, 723 F.2d 682, 687 (9th Cir.1984). For this reason, we find unpersuasive the Inspector General's reliance on the Territorial Clause, U.S. Const. art. IV, §3, cl. 2, as support for enforcement of the federal audit. He argues that because the CNMI is governed through Congress' power under the Territorial Clause, Congress has plenary legislative authority over the CNMI. The applicability of the Territorial Clause to the CNMI, however, is not dispositive of this dispute. Even if the Territorial Clause provides the constitutional basis for Congress' legislative authority in the Commonwealth, it is solely by the Covenant that we measure the limits of Congress' legislative power.

U.S. ex rel. Richards v. De Leon , 4 F.3d 749, 754 (9th Cir. 1993) (Goodwin, J.)

39 Congress' legislative authority over the Commonwealth derives from Section 105. The first sentence of Section 105 provides that the United States may legislate with respect to the CNMI, “but if such legislation cannot also be made applicable to the several States the Northern Mariana Islands must be specifically named therein for it to become effective in the Northern Mariana Islands.” That Congress has the power to pass legislation with respect to the CNMI that it would not pass with respect to the states is plain. Having recognized that the potential scope of power over the CNMI would be greater than that over the states, Section 105 requires that Congress specifically identify the CNMI in cases where such legislation is not equally applicable to the states. As the Marianas Political Status Commission (“MPSC”) explained in its contemporaneous analysis of the Covenant, this requirement is to ensure that Congress will exercise its legislative powers “purposefully, after taking into account the particular circumstances existing in the Northern Marianas.” The United States took a similar view: the “purpose of this provision is to prevent any inadvertent interference by Congress with the internal affairs of the Northern Mariana Islands to a greater extent than with those of the several States.” In light of these concerns, we interpret the first sentence of Section 105 to mean that the United States must have an identifiable federal interest that will be served by the relevant legislation. U.S. ex rel. Richards v. De Leon Guerrero, 4 F.3d 749, 754 (9th Cir. 1993) 40 Guam’s Organic Act of 1950 (granting U.S. citizenship)

“As an unincorporated territory, Guam like Puerto Rico and the Virgin Islands, is appurtenant to the United States and belongs to the United States but is not a part of the United States . . . Unincorporated areas are not integral parts of the United States and no promise of statehood or a status approaching statehood is held out to them.”

H.R. Rep. 1365, 81st Cong., 1st Sess. 8 (1949)

41 Alaska Date Congressional / Judicial / Other Event Effect Department of Alaska under military 1867 government Acts of July 20 and 28, Extended internal revenue, customs, 1869 1868 commerce, and navigation to Alaska •Governor appointed by President 1884 Organic Act • •Federal Territorial Court in Sitka 1890 – Over 30,000 American settlers move to 1910 Alaska 1891 Order of May 11, 1891 Alaska assigned to Ninth Circuit •Alaska becomes organized territory 1912 Second Organic Act •Juneau designated capital •Alaska has elected legislature

42 Alaska Date Congressional / Judicial / Other Event Effect •Proposed by Alaska Delegate to Congress, 1916 First Statehood Bill •Failed due to disinterest of Alaskan residents of gaining statehood at the time 1946 Territorial Referendum Statehood prevails 3:2 •Presented by Alaska Delegate to Congress, Bob Barlett (who would become US 1949 Second Statehood Bill Senator upon statehood) •This bill failed in Congress 1955 – Constitutional Voted upon favorably by Alaskan residents 1956 Convention

43 Alaska Date Congressional / Judicial / Other Event Effect •House passes statehood bill on May 28, 1958 US President Eisenhower 1958 •Senate passes the same on June 30, 1958. endorses Statehood Bill •President Eisenhower signs into law on July 7, 1958 1959 January 3, 1959 Alaska becomes 49th State

44 Hawai`i

Date Congressional / Judicial / Other Event Effect of Hawai`i annexed as U. S. 1898 Newlands Resolution territory by way of joint Congressional resolution •Conferred U. S. Citizenship •Local Civil Government Established 1900 Organic Act •Bi‐Cameral Legislature •Creates U. S. Territorial Court •Hawai`i became incorporated territory in 1903 Hawai`i v. Mankichi 1900 following Organic Act •All constitutional rights extend to Hawai`i

45 Hawai`i

Date Congressional / Judicial / Other Event Effect •Hawai`i joins Union •State government is republican in form 1959 Hawai’i Admission Act •Article III U. S. District Court established •Hawai`i Constitution approved •Palmyra Atoll excluded from statehood Joint Congressional Resolution acknowledging 100th anniversary of 1993 Apology Resolution overthrow of Hawai'ian and apologizing to native Hawaiians

46 Puerto Rico Congressional / Judicial / Other Date Effect Event 1898 Treaty of Paris Puerto Rico annexed as U. S. territory Presidential Commission Report recommends: • Constitution and Laws of U. S. be fully extended to Puerto Rico 1899 Carroll Report • U. S. citizenship be granted • Territorial government similar to be established • Local Civil Government Established 1900 Organic Act • Creates U. S. territorial court U. S. Constitution applies ex propio vigore to 1901‐ Insular cases decided Puerto Rico, however not all constitutional 1905 rights extend to unincorporated territory 1904 Gonzalez v. Williams Citizens of Puerto Rico are U. S. nationals • Conferred U. S. citizenship to citizens of 1917 Jones Act Puerto Rico • Bi‐cameral Legislature established 47 Puerto Rico (cont.) Congressional/Judicial/ Date Effect Other Event • Granting of U. S. citizenship did not incorporate Balzac v. Porto Puerto Rico 1922 Rico • VI th Amendment Right to Jury Trial in Criminal Cases inapplicable For the first time in 430 years of Spanish and US Elective 1947 , the People of Puerto Rico elect their Governor Act Governor in 1948 Ruiz Alicea v. First Circuit rejects argument that Treaty of Paris is 1950 US null and void 1950 Law 600 Congress authorizes Puerto Rico to draft Constitution US citizenship provision of 1917 Organic Act codified 1952 8 USC sec 1402 at US Immigration and Nationality Act (shortly before Commonwealth established)

48 Puerto Rico (cont.) Date Congressional/Judicial/Other Event Effect • Puerto Rico Constitution approved by Congress 1952 Law 477 (before that of Hawai`i) • Puerto Rico government is republican in form 1954 Brown v. Board of Doctrine of “Separate but Equal” violates Education Equal Protection As with all States, appeals from PR Supreme PL 87‐189 1961 Court must be taken to US Supreme Court; (28 USC sec 1258) previously to First Circuit 1966 PL 89‐571 Article III Court established in Puerto Rico • Right to jury trial in civil cases locally inapplicable because of civil law tradition (constitutional ramifications not addressed) Garcia Mercado v • Ruling questioned on constitutional grounds 1970 Superior Court by federal court in 2011 and 2014 • In 2015 First Circuit holds that VIIth amendment right has not been yet extend to States by Supreme Court 49 Puerto Rico (cont.)

Date Congressional/Judicial/Other Event Effect • House subcommittee on Territorial and Insular Affairs proposed bill to enhance Commonwealth status. • Entitled "Compact of Permanent Union" and included provisions such as: • 1 seat in US House HR 11200 • 1 seat in US Senate • ability of US President to suspend 1976 (Bill to Enhance application of particular federal laws in PR Commonwealth Status) (as existed before Commonwealth status); • ability of President and Governor to agree to limits to immigration laws. • Article III court would remain. • US Senate passed parallel Resolution 215. • Following President Ford's defeat Bill was not further considered.

50 Puerto Rico (cont.)

Date Congressional/Judicial/Other Event Effect Examining Board v US Supreme Court recognizes congressional 1976 Flores de Otero relinquishment of control over local matters Additional Article III judgeships created for 1978 PL 95‐48 Puerto Rico US Supreme Court recognizes that Puerto 1982 Rodriguez v PDP Rico like the States is sovereign over matters not governed by US Constitution. First Circuit holds that because Puerto Rico is not a State US citizens therein lack Presidential vote. Ruling reaffirmed in 1992 Igartua v US subsequent Igartua plaintiff cases in 2000 and 2004 and extended to congressional elections in 2009.

51 Puerto Rico (cont.)

Date Congressional/Judicial/Other Event Effect Second Circuit holds that US citizen who 2001 Romeu v Cohen moved from to Puerto Rico lost right to vote for President. VIth Amendment Right to jury trial is 2009 People v. Santana Vélez fundamental and applies to Puerto Rico Recognizes that Insular Cases “have been Presidential Task Force viewed negatively on the Island and do not 2011 Report on Puerto Rico’s address the development of the relationship Status between Puerto Rico with the United States”. Commerce Clause applicable to Puerto Rico Commonwealth of PR v 2012 (overrules prior ruling to the contrary; in Northwest Selecta, Inc. accord with First Circuit).

52 Puerto Rico (cont.)

Fecha Evento / Congreso / Judicial Efecto Recognizes that Insular Cases “have been viewed Presidential Task Force negatively on the Island and do not address the 2011 Report on Puerto Rico’s development of the relationship between Puerto Status Rico with the United States”. Puerto Rico and USA constitute a “single sovereign” for purposes of Double Jeopardy Clause (contrary to long‐standing precedent of US v. Lopez de Andino). Supreme Court adopts historical test for sovereignty 2015 Pueblo v. Sánchez Valle under Clause. The Court does not allude to the Insular Cases. Rather it recognizes its precedent recognizing Congressional relinquishment over local matters.

Congress recognizes Puerto Rico as an unincorporated territory and enacted an Act that PROMESA 2016 created a control board with authority over the Puerto Rico government. 53 Philippines Congressional / Judicial / Date Effect Other Event 1898 Treaty of Paris Philippines annexed as U. S. territory 1899 Senate Resolution Philippines not to be annexed permanently The Diamond 1899 Senate Resolution has no effect 1901 Rings • Local Civil Government Established 1902 Organic Act • No U. S. territorial court is established Dorr v. U. S. Philippines is unincorporated territory 1904‐ Rassmussen v. U. 1905 S. Congress announces intention to grant 1916 Organic Act Philippines independence

54 Philippines

Fecha Evento / Congreso / Judicial Efecto • 10 years transitory intention to grant Philippine independence Tydings‐McDuffie • Creation of Commonwealth of the Philippines 1935 Act Islands • Constitutional Convention enacts Constitution which is approved by President Roosevelt Congress may cede to newly established Cincinnati Soap 1937 Commonwealth plenary powers exercised Co. v U. S. previously under territorial status Philippines 1946 Independence

55 Guam Date Congressional/ Judicial/Other Event Effect 1898 Treaty of Paris Guam annexed as U. S. territory 1898 – Guam under jurisdiction of U. S. Navy 1950 • Local civil government established • U. S. Citizenship 1950 Organic Act • Article I Court established • Defines Guam as unincorporated territory Section 307 of Immigration U. S. citizenship granted to all persons 1952 and Nationality Act born in Guam after April 11, 1899 Congress may enact purely intrastate 1956 Guam v Kaaheke legislation for Guam 1968 Elective Governor Act Right to vote for own governor

56 Guam Date Congressional/ Judicial/Other Event Effect Votes: 37 statehood, 20 commonwealth, 15 annex to Hawai'i, 11 status quo, First Constitutional 1969 8 incorporated territory. Resolution 19 is Convention reaffirmed stating that "statehood is the eventual status sought by the People of Guam" Guam Granted Non‐ previously the Office of Territories argued that 1972 Voting Delegate to this would result in territorial incorporation Congress US Supreme Court holds territory of Guam 1978 Guam v Olson could not establish Guam Supreme Court without specific congressional authorization Constitutional Guam Constitution rejected by people of 1979 Referendum authorized by Guam by 82% of voters. U. S. Public Law 92‐582 Attorney General of Guam U.S. Citizens in U.S. territory of Guam 1984 v U.S. cannot vote for President of the U.S. 57 Guam Date Congressional/ Judicial/Other Event Effect Congress can annul local legislation as Sakamoto v Duty Free 1985 per 48 USC sec 1428; Commerce Shoppers Ltd Clause does not apply to Guam Guam Supreme Court is Ninth Circuit entertains appeals established pursuant to 1984 1996 Congressional authorization

118 Stat 2208 (42 USC sec Appeals from high court are taken to 2006 1424‐2) US Supreme Court Cannot exclude non‐natives from Davis v. Guam, 2017 WL 2017 voting in plebiscite. 930825 (D. Guam)

58 American Sãmoa

Date Congressional/Judicial /Other Event Effect 1899 Treaty with American Sãmoa annexed as U. S. territory 1899 – American Sãmoa under jurisdiction Military Occupation 1951 of U. S. Navy Transfer to Civil American Sãmoa under jurisdiction of U. S. 1956 Authority Department of the Interior Local Constitution Not approved by U. S. Congress 1967 enacted 1977 First Local Elections Governor Elected

59 American Sãmoa

Date Congressional/Judicial /Other Event Effect • is unincorporated territory Leneuotti Fiafia Tuau v 2013 • no US birthright citizenship US • Affirmed by DC Circuit, certiorari petition pending • No U. S. Citizenship (“U. S. Nationals”) • No Organic Act • No Territorial Court “Unorganized Present • Justices of High Court of American Sãmoa territory” appointed by Secretary of the Interior • Most federal cases are presented in Hawai`i and DC courts

60 Guantamo Bay

Date Congressional/Judicial /Other Event Effect Spain cedes control over entire island 1898 Treaty of Paris of Cuba to U.S. as a May 20, 1902 Protectorate over Cuba ends • U.S. has complete jurisdiction over February 23, U.S. – Cuba lease of Guantanamo Bay 1903 Guantanamo Bay • Cuba has ultimate sovereignty Cuba has no sovereign rights over U.S. –Cuba Treaty May 29, 1934 Guantanamo Bay until 1903 lease is 48 Stat. 1683 modified or US abandons territory 1980‐90s Cuban and Haitian refugee camps 2002 Military prison

61 Guantamo Bay

Date Congressional/Judicial /Other Event Effect • US has retained plenary control over Guantanamo Bay since 1903 • Territory is not a transient possession 2008 Boumediene v. Bush • Unincorporated territory where fundamental rights (ie, habeas corpus) apply

62 Panama Canal Zone (PCZ)

Date Congressional/Judicial /Other Event Effect First individual to suggest canal for Conquistador Alvaro 1529 european vessels to reach Asia. Closely de Saavedra tracked present day canal. Panama Railroad First transcontinental railroad. Ports on 1850 constructed both coasts Concession to French Construction failed after several years due 1878 firm to build canal in to disease and engineering problems Panama For construction of Panama Canal. 1903 U.S. – Colombia Treaty Rejected by Colombian Senate 24‐0

November Revolution in U.S. intervened to protect provisional 1903 Department of Panama government Hay‐Burnau Varilla U.S. and Panama sign treaty to build Panama 1903 Treaty Canal 63 Panama Canal Zone (PCZ) Congressional/Judicial Date Effect /Other Event February U.S. Senate $10 million to Panama in lump sum, plus $250,000 23, 1904 ratifies Treaty per anum. U.S. gets jurisdiction over Canal.

Panama Canal • Jurisdiction of Secretary of War. May 4, Zone officially • Supervisor of Canal construction appointed. 1904 turned over to • 2nd Isthmian Commission governing body. U.S. Government of No appellate jurisdiction from PCZ to U.S. Supreme 1908 Canal Zone v. Court Adolph Cousin • Panama Canal Zone assumes government functions. Panama Canal Act • Territorial U.S. District Court created with appeals 1912 37 Stat. 560 to U.S. Court of appeals for the 5th Circuit. • PCZ is independent agency of Congress. • Statutory Bill of Rights provided. 64 Panama Canal Zone (PCZ) Congressional/Judicial /Other Date Effect Event Panama Canal President issues executive order August 1914 opens to appointing governor. Defense of the commercial traffic Canal corresponds to Secretary of War. Congress passes retroactive law. People born in the Canal Zone on or after 1904, who had at least one parent who was a 1937 8 USC sec 1403 U.S. citizen, become U.S. citizens. Previously, the law required that both parents had to be U.S. citizens.. Torrijos‐Carter PCZ to be turned over to Republic of 1979 Treaty Panama. U.S. District Court abolished effective 1979 93 Stat 455 March 31, 1982

65 Commonwealth of Northern Mariana Islands (CNMI)

Date Congressional/ Judicial/Other Event Effect • Former U. S. Trust Territory CNMI Established • Established by Joint Congressional 1976 pursuant to “Covenant” Resolution rather than by Treaty 48 U.S.C. § 1801 • Republican form of government U. S. District Court for the CNMI 1977 48 U.S.C. §1821 established (non‐Article III Court) 1978 CNMI Constitution CNMI Constitution enters into effect U. S. Congress extends U. S. Citizenship pursuant to “Covenant” 1986 U. S. Citizenship CNMI Supreme Court Appeals taken to 9th Circuit 1989 created under terms of Covenant 66 Commonwealth of Northern Mariana Islands (CNMI)

Date Congressional/ Judicial/Other Event Effect Even if Territorial Clause provides U. S. ex rel Richards v. De 1993 Constitutional basis for Congress’ authority in León Guerrero CNMI, legislative power is limited by Covenant. CNMI Supreme Court CNMI Supreme Court appeals are taken to U. S. 2004 equated to State Supreme Supreme Court courts • U. S. Immigration Laws apply to CNMI • U. S. Department of Homeland Security over 2009 CNMI vs. USA immigration and controls • Despite Covenant, Congress may legislate in regards to CNMI’s internal affairs. Davis v. Commonwealth Cannot excluded non‐natives from voting in 2016 Elections Committee, 844 plebiscite. F.3d. 1087 (9th Cir. 2016) 67 U. S. Virgin Islands (USVI)

Date Congressional/ Judicial/Other Event Effect Treaty of with USVI becomes U. S. territory 1917 Denmark • USVI under jurisdiction of U. S. Navy 1917‐ 1931 Military Government • In 1931, transferred to U. S. Department of the Interior 1927 8 U.S.C §1406 U. S. Citizenship • Creates U. S. Territorial Court • Unincorporated Territory 1936 & Organic Act • VI and VII Amendment Rights to jury 1954 trial extended to USVI • Republican form of government 1970 First Local Elections JDS Realty Corp v. Commerce Clause applies to USVI; ruling 1987 Govt of USVI vacated by USSC on mootness grounds 68 U. S. Virgin Islands (USVI)

Date Congressional/ Judicial/Other Event Effect 1994 Pub L. 94‐584 Vth Constitutional Convention Congressional USVI Supreme Court created 2004 Authorization • U.S. citizens in U.S. Virgin Islands cannot vote for President of the U.S, nor have constitutional right to be represented in 2007 Ballentine v U.S. Congress by regular voting member. • Congress can constitutionally designate USVI as unincorporated territory. Congress does not USVI Constitution referred back to 2010 approve USVI Constitutional Convention Constitution P. Law 112‐226 Appeals from USVI Supreme Court are 2012 (28 U.S.C. §1260) taken to US Supreme Court 69 • Puerto Rico annexed st • Hawai`i annexed 1 Philippines • Philippines annexed Organic Act

1898 1900 1902 • 1st Puerto Rico Organic Act • Hawai`i Organic Act • Hawai`i U. S. Citizenship • Hawai`i Incorporated (USSCt 1903)

70 • 2nd Philippines Organic Act • Philippines to Philippines Puerto Rico become 10 year authorized to draft independent transition Constitution

19161917 1935 1946 1950 • 2nd Puerto Rico Philippines Organic Act Independence • Puerto Rico U. S. Citizenship • Puerto Rico not incorporated (USSCt 1922)

71 • Hawai`i Statehood • Republican form of government • Puerto Rico Constitution • Hawai`i Constitution Approved Approved • Article III U. S. District Court • Republican form of • Palmyra Atoll remains government incorporated territory

1952 1954 1959 Brown v. Board of Education

72 2008 • Boumediene v. Bush • Guantanamo Bay is • Article III unincorporated territory U. S. District Court • Fundamental Constitutional • (Additional rights extend in judgeships in 1978) unincorporated territory

U. S. Supreme Court, First Circuit and 1966 Puerto Rico Supreme Court 2018 continue to recognize and extend fundamental and non‐fundamental Constitutional provisions to Puerto Rico with the exception of Double Jeopardy Clause in precedent overruling opinion by PR SCT

73 “We the people of Puerto Rico, in order to organize ourselves politically on a fully democratic basis, to promote the general welfare, and to secure for ourselves and our posterity the complete enjoyment of human rights, placing our trust in Almighty God, do ordain and establish this Constitution for the commonwealth which, intheexcerciseofournaturalrights,wenowcreatewithinour union with the United States of America. . . . We Consider as determining factors in our life our citizenship of the United States of America and our aspiration continually to enrich our democratic heritage in the individual and collective enjoyment of its rights and privileges; our loyalty to the principles of the Federal Constitution; the coexistence in Puerto Rico of the two great cultures of the American Hemisphere.”

Preamble to the Constitution of Puerto Rico (approved by Congress and the People of Puerto Rico) 74 “[Law 600 is] a new experiment; it is turning away from the territorial status; it is something intermediary between the territorial status and statehood.”

Statement of Approval of Puerto Rico Constitution of House Majority Leader Hon. John McCormack, 98 Cong. rec. 5128 (1952)

75 “It is thus not surprising that although Puerto Rico is not a state in the federal Union, it … seem[s] to have become a State within a common and accepted meaning of the word.”

United States v. Laboy Torres, 553 F.3d 715 (3rd Cir. 2009) (O’Connor, J (retired))

76 “Puerto Rico possesses “a measure of comparable to that possessed by the States.” Like the States, it has a republican form of government, organized pursuant to a constitution adopted by its people, and a bill of rights. This government enjoys the same immunity from suit possessed by the States. Like the States, Puerto Rico lacks “the full sovereignty of an independent nation,” for example, the power to manage its “external relations with other nations,” which was retained by the Federal Government. As with citizens of the States, Puerto Rican citizens are accorded United States citizenship, and the fundamental protections of the United States Constitution. The rights, privileges, and immunities attendant to United States citizenship are “respected in Puerto Rico to the same extent as though Puerto Rico were a State of the Union. Finally, Puerto Rican judgments are guaranteed the same full faith and credit as are those of the States.” United States v. Laboy Torres, 553 F.3d 715 (3rd Cir. 2009) (O’Connor, J (retired)) 77 “The purpose of Congress in the 1950 and 1952 legislation was to accord Puerto Rico the degree of autonomy and independence normally associated with a State of the Union.” Examining Board v. Flores de Otero, 426 U.S. 572, 594 (1976)

78 “Prior to 1950 Puerto Rico’s legal status was closer to that of a “territory” than that of a “state”, and that since 1952 Puerto Rico’s status changed from that of a mere territory to the unique status of Commonwealth. And the federal government’s relations with Puerto Rico changed from being bounded merely by the territorial Clause, and the rights of the People of Puerto Rico as United States Citizens, to being bounded by the United States and Puerto Rico Constitutions, Public Law 600, the Puerto Rico Federal Relations Act and the rights of the People of Puerto Rico as United States Citizens.” Cordova & Simonpietri Ins. Agency v. Chase Manhattan Bank, 649 F.2d 36, 41 (1st Cir. 1981) (Breyer, J.)

79 In its . . . attempt to avoid Cordova, the government cites Sánchez Valle in support of the position that “Puerto Rico remains a territory under the U.S. Constitution,” such that Crespo remains controlling. But neither Sánchez Valle nor Puerto Rico's status under the Constitution forecloses application of the Cordova framework. In Sánchez Valle, the Supreme Court took pains to acknowledge the “distinctive, indeed exceptional, status as a self‐governing Commonwealth” that Puerto Rico occupies today, but the issue presented in that case—whether Puerto Rico and the United States are different sovereigns for purposes of the dual‐sovereignty doctrine—compelled the Court to look not to the present but to the distant past to ascertain “the ‘ultimate source’ of Puerto Rico's prosecutorial power.” And, although we recently reiterated that Puerto Rico “is ‘constitutionally a territory,’ that observation is beside the point. This case requires us to answer a question of congressional intentnot one of the constitutional relationship between Puerto Rico and the United States.

United States v. Maldonado‐Burgos, 844 F.3d 339, 344–45 (1st Cir. 2016) (Thompson, J).

80 COMMONWEALTH STATE OF THE UNION

“The Territorial Clause continues to be the principal source of federal power over non‐state areas, which encompasses Puerto Rico, because it is not a State of the Union....Withoutsaidconstitutionalprovision, Puerto Rico could not have become a Commonwealth, not ever be admitted as a State of the Union in the future.” United States v Mercado Flores, ___ F. Supp. 2d ___, 2015 WL 4132355 * 4 (D.P.R.)(Gelpi, J.)

81 “The ‘Insular Cases' can be distinguished from the present cases in that they involved the power of Congress to provide rules and regulations to govern temporarily territories with wholly dissimilar traditions and institutions.” Reid v. Covert, 354 U.S. 1, 14 (1957)

82 “Whatever the validity of [the Insular Cases], in the particular historical context in which they were decided, those cases are clearly not authority for questioning the application of the Fourth Amendment—or any other provision of the Bill of Rights—to the Commonwealth of Puerto Rico in the 1970s. As Justice Black declared in Reid v. Covert: “neither the cases nor their reasoning should be given any further expansion. The concept that the Bill of Rights and other constitutional protections against arbitrary government are inoperant when they become inconvenient or when expediency dictates otherwise is a very dangerous doctrine and if allowed to flourish would destroy the benefit of a written Constitution and undermine the basis of our government.” Torres v. Commonwealth of Puerto Rico, 442 U.S. 465, 475‐476 (1979) (Brennan, J., concurring, joined by Stewart, Marshall and Blackmun, JJ.) 83 “The Insular Cases involved territories “with wholly dissimilar traditions and institutions” that Congress intended to govern only “temporarily”. It may well be that over time the ties between the United States and any of its unincorporated territories strengthen in ways that are of constitutional significance.”

Boumediene v. Bush, 553 U.S. 723, 128 S. Ct. 2229, 2255 (2008)

84 “Our basic charter cannot be contracted away like this. The Constitution grants Congress and the President the power to acquire, dispose of and govern territory, not the power to decide when and where its terms apply. Even when the United States acts outside its borders, its powers are not “absolute and unlimited” but are subject “to such restrictions as are expressed in the Constitution.” Abstaining from questions involving forward sovereignty and territorial governance is one thing. “To hold the political branches have the power to switch the Constitution on or off at will is quite another.” Boumediene v. Bush, 553 U.S. 723, 128 S. Ct. 2229, 2259 (2008)

85 “[Congress] could, for example, provide for jurisdiction by placing Guantanamo Bay within the territory of an existing district court, or by creating a district court for Guantanamo Bay , as it did for the Panama Canal Zone" Rasul v. Bush, 542 US 466, 506 n. 7 (2004) (dissenting opinion of Justice Scalia)

86 “[T]here [is] no need to extend full constitutional protections to territories the United States [does] not need intend to govern indefinitely. Guantanamo Bay, on the other hand is no transient possession. In every practical sense Guantanamo is not abroad; it is within the constant jurisdiction of the United States.”

Boumediene v. Bush, 553 U.S. 723, 768‐69 (2008) 87 “Toacknowledgethecontinuing validity of Balzac following Duncan v would negate equality of fundamental rights to United States citizens in Puerto Rico, something contrary to Congress' intent that Puerto Rico be treated in a manner analogous to that of a federated state and our own constitutional duty of guaranteeing federal constitutional justice.”

People v. Santana‐Velez, 177 D.P.R 61, 2009 TSPR 158 (2009) (Martinez Torres, J., concurring)

88 “[I]n light of the ever‐increasing integration of Puerto Rico to the federal system, the justification of [the Commerce] Clause to the island is simple. . . . If in practical terms Puerto Rico is akin to a state, of equal application then should be the limitations that befall over [the states] by virtue of the Commerce Clause. It would be inconceivably possible for there to exist a jurisdiction that is considered as a state within the United States which is not subject to the Clause which constitutes the most important tool for economic and national integration of the Federal Constitution." Commonwealth of Puerto Rico v Nothwest Selecta, Inc, 185 DPR 40 (2012) (Feliberti, J. )

89 “It is clear under the current state of law that the Interstate Commerce Clause is inapplicable to Puerto Rico. This, given that said [constitutional provision] is not a fundamental right nor has been extended to Puerto Rico by Congress nor by the United States Supreme Court, even when the latter had the opportunity to address the matter as recently as in 2008.”

Commonwealth v. Northwest Selecta, 185 D.P.R. 40, 104 (2012) (dissenting opinion of Associate Justice Anabelle Rodriguez) 90 “This is a most unfortunate and denigrating predicament for citizens who for more than one hundred years have been branded with a stigma of inferiority, and all that follows therefrom. At the root of this problem is the unacceptable role of the courts. As in the case of racial segregation, it is the courts that are responsible for the creation of this inequality... Changed conditions have long undermined the foundations of these judge‐ made rules, which were established in a by‐gone era in consonance with the distorted views of that epoch. Although the unequal treatment of persons because of the color of their skin or other irrelevant reasons, was then the modus operandi of governments, and an accepted practice of societies in general, the continued enforcement of these rules by the courts is today an outdated anachronism, to say the least.” Igartua v. United States of America, 626 F. 3d 592, 612‐613 (1st Cir. 2010) (Torruella, J. concurring in part; dissenting in part) (Citations to Supreme Court cases omitted) 91 “This Court . . . is of the opinion that it is inexcusable that there still exists a substantial number of US citizens who cannot legally vote for the President and Vice President of the United States.”

Sanchez v. U.S., 376 F. Supp. 239, 242 (DPR 1974) (Youngdahl, J.) 92 “Although I am unable to afford [plaintiff] the relief he seeks, there is little doubt that all American citizens living in Puerto Rico are suffering a grave injustice. As American citizens, they should be allowed to vote for their national leader.”

Romeu v Cohen, 121 F. Supp. 2d 264, 283 (S. D. N. Y. 2000) (Scheindlin, J.) 93 “Under the present status, the residents of Puerto Rico enjoy some benefits and responsibilities but are deprived of others. Ultimately, it is this political conundrum that has charecterized the present status of Puerto Rico; a status of subordination through disenfranchisement. It is a status, which despite providing for citizenship, denied the right to have a voting Congressional delegation. It is a status that stands at odds with the words of Lincoln that no man is good enough to govern without the other's consent.”

Igartua v. U.S., 107 F. Supp. 2d 140, 148 (DPR 2000) (Pieras, J.) 94 “Equally acidulous are the noble pronouncements written into treaty obligations assumed by the United States such as the ICCPR which employs the following language" Every citizen shall have the right . . . to vote and be elected at genuine periodic elections which shall be by universal and equal suffrage" and "all persons are equal before the law". Obviously, these noble utterances about the rights of all citizens before the law sits ill at ease with the notion that there is an exception to that right if one is a resident of Puerto Rico.”

Igartua v. U.S., 331 F. Supp. 2d 76, 80–81 (2004)(Acosta, J.) 95 “Not surprisingly, the Insular Cases have been, and continue to be, severely criticized as being founded on racial and ethnic prejudices that violate the very essence and foundation of our system of government as embodied in the Declaration of Independence and repeated in such documents as the Gettysburg Address and the Civil Rights laws. . . [T]he nature and extent of the citizenship of residents of the Virgin Islands have been controlled up to now by a thoroughly ossified set of cases marked by the intrinsically racist imperialism of a previous era of United States colonial expansion.”

Ballentine v. US, 2001 WL 1242571 (Moore, J.) 96 Guam is an unincorporated territory of the United States, under the plenary control of Congress pursuant to Article IV, section 3 of the Constitution. In 1950, Congress passed the Organic Act of the Territory of Guam, which declared Guam a territory and established its government. The Organic Act incorporated specifically, as part of a bill of rights, the privileges and immunities clause of the Constitution, and the equal protection clause of the fourteenth amendment, 48 U.S.C. § 1421b(n). At the same time Congress provided that Guamanians were American citizens. . . . The right to vote in presidential elections under Article II inheres not in citizens but in states: citizens vote indirectly for the President by voting for state electors. Since Guam concededly is not a state, it can have no electors, and plaintiffs cannot exercise individual votes in a presidential election. There is no constitutional violation. Attorney Gen. of Territory of Guam on Behalf of All U.S. Citizens Residing in Guam Qualified to Vote Pursuant to Organic Act v. United States, 738 F.2d 1017, 1018–19 (9th Cir. 1984) (Schroeder, J.)

97 “In 1950 Congress approved Law 600 which afforded the island's voters a process of adoption of a local constitution. This ultimately led to the Establishment of the Commmonwealth of Puerto Rico, under a republican form of government. . . . [T]he [Supreme] Court in Balzac could not have conceived of a territorial constitutional development of such magnitude"

Consejo de Salud Playa Ponce v Rullan, 593 F. Supp. 25 386 (DPR 2009) (Gelpi , J.) 98 “[T]he following territorial anomaly further illustrates the erosion and inadherence by Congress of Balzac's language to the effect that the incorporation of a territory will necessarily lead to statehood. When the "incorporated territory" of Hawai'i became a state, a portion of it was segregated and not made part of the State . . . The result is that today, Palmyra Atoll, by virtue of Congressional action, is an unpopulated and unorganized, yet incorporated territory of the United States. Under the ratio decidendi of Balzac, this is not possible, given that Palmyra did not become a state, nor will ever likely become one. Ironically, the United States Constitution affords greater protections and rights to a citizen in Palmyra Atoll than in an unincorporated territory ". Consejo de Salud Playa Ponce v Rullan, 593 F Supp 25 386 (DPR 2009) (Gelpi, J.) 99 “Puerto Rico is the only United States jurisdiction in which its American citizens are not afforded any right to trial by jury in civil cases before local courts... From a judicial perspective, this creates a significant constitutional anomaly for litigants in this jurisdiction. It is the underlying reason scores of plaintiffs will go to unsurmountable lengths (i.e., relocating to the U.S. mainland) to create diversity jurisdiction, and hence obtain a jury trial. [I]n this District… in diversity cases the Seventh Amendment bestows upon United States citizens in Puerto Rico all its guarantees... Such constitutional provision, like numerous others, has been fully incorporated into Puerto Rico as if it were a State oftheUnion.Therighttobejudgesbyyourpeersincivil cases is thus a constitutionally protected Fundamental Right. It is one of the most longstanding natural rights in our legal system, having derived from the Magna Carta.

continued on next page… 100 “…Such judicial reality, hence, cannot tolerate any form of state‐federal court constitutional segregation as it pertains to the Seventh Amendment rights of the nearly four million citizens residing in Puerto Rico... At this time it behooves the courts of Puerto Rico, and ultimately its Supreme Court, to affirmatively recognize the fundamental right to civil trial by jury in actions arising under the common law or their equivalent under the civil law. Only then will Puerto Rico cease to be the only United States jurisdiction in which US citizens have the guarantees of the Seventh Amendment switched on and off depending on the forum where the case is being tried.” Bouret‐Echevarria v. Robinson Helicopter Co., 824 F. Supp. 2d 275, 282 (DPR 2011) (Gelpi , J.)

101 Following a dispassionate analysis of the history and countless juridical literature about the subject, one must conclude that, following the adoption of a constitution, Puerto Rico did not cease to be a territory of the United States subject to the power of Congress, as set forth in the Territorial Clause of the federal Constitution... [C]ontrary to indian tribes or states, Puerto Rico never has enjoyed an original nor prior sovereignty which it delegated to Congress. It is the other way around... In sum, the Commonwealth of Puerto Rico is not a sovereign entity, since, as a territory, its ultimate source of power... derives from the Congress of the United States. ” People v. Sanchez Valle, 2015 WL 1317010 (Martinez Torres, J.) 102 “Congress, by virtue of its plenary powers, may auto‐impose upon itself limits to the exercise of said power, bestowing its territory measures of self‐government which give rise to acquired rights over said government faculties which later may not be withdrawn by a subsequent Congress. . . . [T]hus . . . . Congress is capable of auto‐limiting its exercise of plenary powers, as it did by promulgating Law 600 and permitting the People of Puerto Rico to draft their own Constitution. ”

People v Sanchez Valle, 2015 WL 1317010 (dissenting opinion of Associate Justice Anabelle Rodriguez)

103 “Congress enacted Public Law 600 to authorize Puerto Rico's adoption of a constitution, designed to replace the federal that then structured the island's governance. The people of Puerto Rico capitalized on that opportunity, calling a constitutional convention and overwhelmingly approving the charter it drafted. Once Congress approved that proposal ‐‐ subject to several important conditions accepted by the convention ‐‐ the Commonwealth, a new political entity, came into being. Those Constitutional developments were of great significance ‐‐ and, indeed, made Puerto Rico "sovereign" in one commonly understood sense of that term. As the Court has recognized, Congress in 1952 "relinquished its control over [the Commonwealth's] local affairs[,] grant[ing] Puerto Rico a measure of self autonomy comparableto that posssessed by the States. That newfound authority, including over local criminal laws, brought mutual benefit to the Puerto Rican people and the entire United States.” Commonwealth of Puerto Rico v Sanchez Valle, — U.S. —, 136 S. Ct. 1863, 1874 (2016) 104 “Put simply, Congress conferred the authority to create the Puerto Rico Constitution, which in turn confers the authority to bring criminal charges. That makes Congress the original source of power for Puerto Rico's prosecutors ‐‐ as it is for the Federal Government's. The island's Constitution, significant though it is, does not break the chain.” Commonwealth of Puerto Rico v Sanchez Valle, 136 S. Ct. 1863, 1867 (2016)

CONSTITUCIÓN DEL ESTADO LIBRE ASOCIADO DE PUERTO RICO

105 "Over a half‐century after the Commonwealth was established, the principle of the consent of the governed, in the case of Puerto Rican‐Federal relations, has been substantially eroded, largely due to the widening sphere of federal authority. " "It is time for both parties‐namely, the People of Puerto Rico and the political branches in Washington, D.C.‐ to urgently review the relationship in order to provide for greater participation and a more specific mechanism of consent by the People of Puerto Rico to the applicability of federal laws in the Commonwealth. Such mechanisms have existed in the past, and have been suggested on various occasions by competent bodies." Hon. Salvador E. Casellas, Commonwealth Status and the Federal Courts, 80 Rev. Jur. U.P.R. 945, 962, 964 (2011) 106 "It is now an unassailable fact that what we have in the U.S. ‐ P.R. relationship is government without the consent or participation of the governed. I cannot imagine a more egregious civil rights violation, particularly in a that touts itself as the bastion of democracy throughout the world. This is a situation that cannot, and should not, be further tolerated."

Hon. Juan R. Torruella, The Insular Cases: A Declaration of their Bankruptcy and My Harvard Pronouncement, Speech at Harvard Law School, February 19, 2014 107 "United States citizens residing in Puerto Rico, have historically lived under a system of federal laws in which the constitutional principle of consent of the governed is a fallacy. . . . [T]he Federal District Court in Puerto Rico [thus] continue[s] to be part of a constitutionally valid, yet flawed system of American Government." United States v. Amaro‐Santiago, 998 F. Supp. 2d 1 (D.P.R. 2014) (Gelpi, J.) 108 109 40 37.25 35 Population By State 30

25.15 U. S. Census 2010 25 19.38 20 18.80

Millions 15 12.83 12.70 11.54 9.88 9.69 9.54

10 8.79 8.00 6.72 6.55 6.48 6.39 6.35 5.99 5.77 5.69 5.30 5.03 4.78 4.63 4.53 4.34 3.83 3.75 3.73 5 3.57 3.05 2.97 2.92 2.85 2.76 2.70 2.06 1.85 1.83 1.57 1.36 1.33 1.32 1.05 0.99 0.90 0.81 0.71 0.67 0.63 0.60 0.56

- Alaska Indiana Missouri Louisiana New York California Oklahoma Mississippi Tennessee Washington Puerto Rico New Connecticut

District of Columbia 110 Puerto Rico 2018

 U. S. Citizens  Congressionally Approved Constitution  Republican form of government  Article III Court  All U. S. Criminal and Civil laws apply (limited exceptions)  Federal Executive Presence  Only U. S. territory within U. S. Customs and Immigration zone

111 Puerto Rico 2018  Puerto Rico residents pay full Social Security and Medicare payroll taxes, as well as federal import, export, and commodity taxes.  Federal employees and persons with federal income file federal income tax returns  In 2010, the U. S. Internal Revenue Service collected $3.6 billion in individual income taxes, employment taxes, and business income taxes in Puerto Rico.  This is more than the IRS collected in one state, and not significantly less than it collected in at least four (4) other states.  A jurisdiction with one of the largest per capita enlistment in United States Armed Forces.  Non‐fundamental constitutional provisions extended by Federal Courts and the Puerto Rico Supreme Court. 112 Puerto Rico 2018

 No presidential vote  No Congressional Representation with voting power  2 Senators  5 Representatives  Discrimination in federal benefits in welfare and social programs.  Only jurisdiction in the U. S. where U. S. citizens are not afforded fundamental right to jury trial in civil cases in state court.

113 U.S. Territories 2018

CONGRESSIONAL ARTICLE U.S. SUPREME PRESIDENTIAL JURISDICTION CONSTITUTION REPRESENTATION III CITIZENSHIP COURT VOTE WITH VOTE COURT

U.S.Virgin Islands Guam

CNMI

American Sãmoa

Legend: Yes No U.S. Citizens who previously voted in States or DC can do so under UOCAVA 114 Comparison of U.S. Territories Non‐voting Acquired by way Acquired Congression Current Duration of Organic US Presidenti Territory of Treaty Post‐ following Constitution al Colonial Colonial Act Citizenship al Vote War insurrection Representati Status Status ve Panama Canal 1904 ‐ 1979 Zone

Puerto 1898 ‐ Present Rico

1898 ‐ Hawai`i 1959

Filipinas 1898 ‐ 1946

115