An Experiment in US Territorial Governance HON. GUSTAVO A. GELPI The District of the Canal Zone and Its Federal Court (1904–1979)

e cannot sit huddled within our own borders and avow ourselves merely an assemblage of well-to-be 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 Wwithout 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)1

40 • THE FEDERAL LAWYER • June 2016 The era of American overseas expansion and imperialism com- menced in 1898 when the United States acquired the territories of Hawai`i, Guam, and the Philippines in the Pacific Ocean and Puerto Rico in the Atlantic Ocean.2 That same year, Cuba, also in the Atlan- tic, became a U.S. protectorate until 1902, whereupon the United States maintained complete jurisdiction over Guantanamo Bay. In A bloodless coup soon ensued in Panama in November 1903. 1899, the United States also acquired American Samoa as another As occurred a decade earlier during the revolt in the Kingdom Pacific territory. of Hawai`i, the United States’ presence and support of the new government was indeed highly visible and outcome determinative. Roosevelt even pompously admitted to the press, “I took Panama!” The newborn republic immediately entered into a treaty ratified by In 1904—to no one’s surprise—the United States negotiated the U.S. Senate on Feb. 23, 1904. The republic would receive a lump with the newly established Panamanian Republic for the exercise of sum of $10 million plus a $250,000 annuity. The United States, in federal territorial sovereignty over a 10-mile-wide zone extending turn, obtained in perpetuity jurisdiction over the Canal Zone and the from Colón on the Atlantic side of the isthmus to Panama City on the future canal to the entire exclusion of Panama.6 Pacific side.3 Within said territorial noncontiguous possession, the United States would build, operate, and oversee the Panama Canal. By World War I, the United States had indeed become a global power with its eastern and western insular possessions plus control over the The United States regarded the Canal Zone as an unincorporated Canal Zone. The key for simultaneous dominion over two vast oceans territory. Accordingly, only fundamental constitutional rights applied was, hence, the Panama Canal, which provided swift access from one therein, as established by the U.S. Supreme Court in the Insular to the other.4 Cases, which dealt with the territories of Hawai`i, Alaska, Puerto Rico, and the Philippines.7 As with its insular possessions, following a period of military governance, Congress passed an organic act for the Canal Zone.8 By then, the isthmian canal was almost complete. The The concept of an isthmian canal dated back to 1529, when Panama Canal Act provided that the Canal Zone government was an Spanish explorer Alvaro de Saavedra suggested a route closely independent agency of the United States established by Congress tracking that of the present day. From 1850–55, the Panama Railroad and administered under the supervision of the president by a desig- was constructed by private U.S. companies, allowing individuals and nated governor. Said official would have formal control and juris- merchandise to transit across the isthmus and thus saving weeks of diction over the Canal Zone and operate it as a civil state. Congress oceanic travel around Cape Horn on the southernmost tip of Chile. In further enacted a statutory bill of rights for the Canal Zone, as it also 1878, French government-sponsored interests began the construc- did in its insular possessions.9 tion of the Panama Canal under the stewardship of Ferdinand de Lesseps, the man responsible years earlier for the development of the Suez Canal. This French venture, however, failed after several years and the loss of hundreds of lives due to tropical disease and The 1912 Organic Act created a U.S. District Court for the Canal engineering problems. At the turn of the 20th century, American in- Zone within the appellate jurisdiction of the U.S. Court of Appeals terest in the canal resurfaced. Eventually the United States and Co- for the Fifth Circuit. This was a logically dictated step, given the lombia entered into a treaty for its construction and operation by the appellate familiarity with maritime law issues. From 1914 until its former. (At this juncture, Panama was a department of Colombia.) formal closure in 1982, the federal territorial court was presided by The Colombian Senate unanimously rejected the treaty, prompting several judges from the U.S. mainland. These jurists were not Article President Theodore Roosevelt to remark: “Those contemptible little III judges, but rather appointed for a term of years, as are judges in creatures in Bogota ought to understand how much they are jeopar- the federal courts in the U.S. Virgin Islands, Guam, and the Com- dizing things and imperiling their own future.”5 monwealth of the Northern Marianas. Beginning with Judge William H. Jackson until 1979, a total of 12 judges were appointed to the Canal Zone bench. From 1977–78, visiting Fifth Circuit judges also presided by designation. Finally, from June 1979 until March 1982, Judge Morey L. Sear, an Article III judge from the Eastern District of Louisiana, presided by designation. Sear was responsible for the ter- mination of the court’s 800-case docket. For three years, Sear would sit for one full week every month in the Canal Zone federal court.

June 2016 • THE FEDERAL LAWYER • 41 The Canal Zone federal courthouse Present day Panama Superior Court in federal courthouse building

Left: Judge Gustavo A. Gelpí sitting on the Canal Zone spectator bench, now located in New Orleans.

The seal of the U.S. District Court for the Canal Zone.

Left: Original Canal Zone Federal Court that is now in Tulane Law School.

42 • THE FEDERAL LAWYER • June 2016 Before the U.S. District Court for the Canal Zone was established in 1912, no federal appellate jurisdiction existed on the isthmus. This U.S. District Judge Gustavo A. Gelpí is a past national president of the FBA. He has was evidenced when Adolphus Coulson was convicted in the zone lectured and written extensively about the and sentenced to death after his appeal to the U.S. Supreme Court historical and legal development of the U.S. was dismissed for lack of jurisdiction.10 Throughout its existence, territories and also teaches a law school course on the subject. the court entertained a salmagundi of maritime law cases. However, like any other busy federal court, it also saw its docket replete with criminal and civil cases—even a tax case that made it all the way to the U.S. Supreme Court, where the opinion was authored by the then recently appointed Justice Antonin Scalia.11 The building that housed the court for 66 years was originally intended to be the gov- Endnotes ernor’s residence; the architecturally majestic structure still stands 1 David McCulloch, The Path Between the Seas: The Creation of the today—following a fire and subsequent refurbishing—as the Panama Panama Canal 1870-1914, 254 (Simon & Schuster 1977). Superior Court, with verandas surrounding its floors. 2 Gustavo A. Gelpi, The Insular Cases: A Comparative Historical Study of Puerto Rico, Hawai`i and the Philippines, 22, The Feder- al Lawyer (March/April 2011). 3 Isthmian Canal Convention, 33 Stat. 2234. During the U.S. territorial regime, military and civilian personnel 4 Juan R. Torruella, Global Intrigues: The Era of the Spanish-American resided within the Canal Zone. Because of its unincorporated legal War and the Rise of the United States to World Power, 165 (Universi- status, individuals born in the Canal Zone were not automatically dad de Puerto Rico 2007). entitled to U.S. citizenship, even though born on U.S. soil. Under the 5 McCulloch, supra note 1, at 340. Naturalization Act of 1795, children born of two U.S. citizen parents 6 Convention for the Construction of a Ship Canal, Feb. 25, 1904, 33 were statutory U.S. citizens. Others, however, held the legally absurd Stat. 2234, TS No. 431, supplemented by General Treaty of Friend- status of U.S. nationals and were not full citizens, like those born to- ship and Cooperation, March 2, 1936, 53 Stat. 1807, TS No. 945. day in American Samoa.12 In 1937, Congress cured this gross inequity 7 Gelpi, supra note 2, at 22-23; Government of the Canal Zone v. by providing that children born in the Canal Zone after 1904 of at Scott, 502 F.2d 566, 560 (5th Cir. 1974). least one U.S. citizenship parent were natural-born U.S. citizens by 8 Panama Canal Act of August 24, 1912, 37 Stat. 560, incorporated virtue of their birth in the Canal Zone.13 Perhaps the most renowned into the Canal Zone Code, effective June 19, 1934. case of such an individual born in the zone came to light in 2008, 9 United States v. Husband R. (Roach), 453 F.2d 1054, 1057-1060 when Sen. John McCain, born therein in 1936, ran for president. (5th Cir. 1971). 10 Coulson v. Canal Zone, 212 U.S. 553 (1908). Coulson also filed a petition for writ of habeas corpus, which the Supreme Court denied. Adolphus Coulson v. Government of the Canal Zone, No. 473, On Oct. 1, 1979, the United States transferred to the Republic of Supreme Court of the United States (October term, 1907) (affirming Panama sovereignty over the Canal Zone and the canal via treaty. the decision of the circuit court of the Second Judicial Circuit and However, the United States, through the Panama Canal Commission, upholding death sentence). a federal agency, would continue to operate the Panama Canal until 11 E.g., O’Connor v. United States, 479 U.S. 27 (1986); United Dec. 31, 1999.14 On March 31, 1982, the U.S. District Court for the States v Husband R., 453 F.2d at 1054; Luchenbach Steamship Co. Canal Zone officially closed its doors following a ceremony presided v Panama Canal Co., 196 F. Supp. 835 (DC CZ 1961). over by Chief Judge Charles Clark of the Fifth Circuit and District 12 See Gonzalez v Williams, 192 U.S. 1, 11-12 (1904); Tuaua v. Judge Morey L. Sear. Today, the Canal Zone federal court’s rich United States, 788 F.3d 300, 303-05 (D.C. Cir. 2015). history is chronicled in the vaults and walls of the clerk’s office of 13 8 U.S.C. § 1403. the U.S. District Court in New Orleans, where Sear hailed from, and 14 Panama Canal Treaty TIAS No. 10030. in Tulane Law School, where the court’s bench now sits. Its majestic 15 During a very recent visit to New Orleans, the author was privileged public benches now decorate one of the hallways at the New Orleans to see and photograph much of the Canal Zone federal court’s memo- federal courthouse.15 rabilia, which included personal items of Judge Sear.

The Canal Zone and the Philippines are the only two U.S. territo- ries in which federal sovereignty has ever been relinquished, unlike all other territories in which United States—territorial ties have strengthened and evolved over the years. The Philippines, which never had a federal court, became an independent nation in 1946. In turn, the Canal Zone was returned to the Republic of Panama in 1979, thus ending a 75-year experiment in U.S. territorial gover- nance.

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