TERRITORIES OF THE UNITED STATES

Portions of the United States that are not within the limits of any state and have not been admitted as states.

The United States holds three territories: American Samoa and Guam in the Pacific Ocean and the U.S. Virgin Islands in the Caribbean Sea. Although they are governed by the United States, the territories do not have statehood status, and this lesser legal and political status sets them apart from the rest of the United States.

The three U.S. territories are not the only U.S. government land holdings without statehood status. These various lands fall under the broad description of insular political communities affiliated with the United States. Puerto Rico in the Caribbean and the Northern Mariana Islands in the Pacific Ocean belong to the United States and have the status of commonwealth, a legal and political status that is above a territory but still below a state.

The United States also has a number of islands in the Pacific Ocean that are called variously territories and possessions. U.S. possessions have the lowest legal and political status because these islands do not have permanent populations and do not seek self-determination and autonomy. U.S. possessions include Baker, Howland, Kingman Reef, Jarvis, Johnston, Midway, Palmyra, and Wake Islands.

Finally, land used as a military base is considered a form of territory. These areas are inhabited almost exclusively by military personnel. They are governed largely by military laws, and not by the political structures in place for commonwealths and territories. The United States has military bases at various locations around the world, including Okinawa, Japan, and Guantanamo Bay, Cuba.

A precise definition of territories and territorial law in the United States is difficult to fashion. The U.S. government has long been in the habit of determining policy as it goes along. The United States was established through a defensive effort against British forces and then through alternately defensive and offensive battles against Native Americans. From this chaotic beginning, the United States has struggled to fashion a coherent policy on the acquisition and possession of land.

The U.S. Constitution does not state exactly how the United States may acquire land. Instead, the Constitution essentially delegates the power to decide the matter to Congress. Article IV, Section 3, Clause 1, of the Constitution provides that "New States may be admitted by the Congress into this Union; but no new State shall be formed … by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress." The same section of the Constitution gives Congress the "Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States."

Under international law the United States and other nation-states may acquire additional territory in several ways, including occupation of territory that is not already a part of a state; conquest, where allowed by the international community; cession of land by another nation in a treaty; and accretion, or the growth of new land within a nation's existing boundaries.

Through various statutes and court opinions, Congress and the U.S. Supreme Court have devised a system that gives Congress and the president control over U.S. territories. Congress delegates some of its policy-making and administrative duties to the Office of Insular Affairs within the interior department. The president of the United States appoints judges and executive officers to offices in the territories. Congress devises court systems for the territories, and the Supreme Court may review decisions made by territorial courts.

Congress may pass laws governing a territory with due deference to the customs and sensibilities of the native people. Congress may not pass territorial laws that violate a fundamental constitutional right. Such rights have not been defined concretely by the Supreme Court in the context of territorial law, but they can include the right to be free from unreasonable searches and seizures, the right to freedom of speech, and the rights to equal protection and due process (Torres v. Commonwealth of Puerto Rico, 442 U.S. 465, 99 S. Ct. 2425, 61 L. Ed. 2d 1 [1979]).

Persons living in U.S. territories do not have the right to vote for members of Congress. They may elect their own legislature, but the laws passed by the territorial legislature may be nullified by Congress. Each territory may elect a delegate who attends congressional sessions, hearings, and conferences in Washington, D.C. These delegates may propose legislation and vote on legislation in committees, but they may not participate in final votes.

U.S. territories have less political power than do U.S. commonwealths. Commonwealths are afforded a higher degree of internal political autonomy than are territories. Congress and the commonwealth work together to fashion a political system that is acceptable to both parties. By contrast, Congress tends to impose its will on territories. Commonwealth status once inevitably led to statehood, but such a progression is no longer automatic.

further readings

Farrand, Max. 2000. The Legislation of Congress for the Government of the Organized Territories of the United States, 1789–1895. Buffalo, N.Y.: Hein.

Statham, Robert, Jr. 2002. Colonial Constitutionalism: The Tyranny of United States' Offshore Territorial Policy and Relations. Lanham, Md.: Lexington Books.

Van Dyke, Jon M. 1992. "The Evolving Legal Relationships between the United States and Its Affiliated U.S.-Flag Islands." University of Hawaii Law Review 14 (fall).

cross-references

Louisiana Purchase; Territorial Courts.

TERRITORIES OF THE UNITED STATES

The United States has five permanent territories. puerto rico, in the Caribbean, and Guam, in the Western Pacific, were acquired as a result of the Spanish-American War in 1899. American Samoa, the only U.S. territory south of the equator, was ceded to the United States by the matai (the chiefs) of the islands in 1900 and 1904. The U.S. Virgin Islands, in the Caribbean east of Puerto Rico, were purchased from Denmark in 1917. The people of what is now the Commonwealth of the Northern Mariana Islands (CNMI), formerly a part of the Trust Territory of the Pacific Islands, voted in a 1976 plebiscite to become a part of the United States. Residents of each of the territories, except American Samoa, enjoy United States citizenship at birth. Residents of American Samoa are United States nationals at birth, and may obtain immediate United States citizenship upon establishing a domicile in a U.S. state (which they, along with other territorials, have an absolute right to do). Official and unofficial referenda indicate that large majorities in each of the territories favor continued affiliation with the United States.

The United States has had territories from its inception. The Northwest Territory was a part of the nation when the Constitution was ratified. That the Framers of the Constitution contemplated the existence of nonstate territories is demonstrated by Article IV, Section 3, Clause 2, commonly called the "territorial clause." It provides, "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."

In 1826, Chief Justice john marshall held, in American Insurance Co. v. 356 Bales of Cotton (David Canter, claimant), that Congress, acting under this clause, could treat territories differently from states and could create courts in territories that combine the functions of Article III federal courts and state courts.

So far as the rest of the Constitution is concerned, early cases seemed to follow the "ex proprio vigore" (by its own force) doctrine, which was summed up in the phrase "the Constitution follows the flag." In the insular cases (1901) (especially Downes v. Bidwell), the Supreme Court moved toward the "incorporation doctrine," which was clearly accepted law by the time of Balzac v. Porto Rico (1922). Under the incorporation doctrine, the Constitution is not fully applicable in a territory unless that territory has been "incorporated into and made a part of the United States." (Modern examples of incorporation are Alaska and Hawai'i.) Although Congress has granted U.S. citizenship to the residents of most of the territories, none of the current territories are deemed to be incorporated.

The Supreme Court has not overruled the "incorporation" doctrine, but lower courts have considered it modified by decisions such as reid v. covert (1957), which held that the Sixth Amendment right to trial by jury applied to a civilian on a U.S. Air Force base in Great Britain. At least two federal circuit courts—in King v. Morton (1975) and Wabol v. Villacrusis (1992)—have adopted a rule of construction which holds that in any given case there is a presumption that the Constitution applies. However, that presumption can be rebutted by proof that a particular application is "impractical" (i.e., that it would not work because of cultural differences) or that it would be "anomalous" (i.e., that it would be destructive of the indigenous culture).

In addition to the distinction between incorporated and unincorporated territories, there is a distinction between organized and unorganized territories. An organized territory has an organic act, an act of Congress that establishes its local government. An unorganized territory was traditionally governed under the authority of the President of the United States. Today, American Samoa is the only territory with a substantial indigenous population that is "unorganized." However, American Samoa has some protection for its local self-government in that federal law now provides that no changes can be made in the Samoan constitution without the approval of the U.S. Congress. Thus the distinction between organized and unorganized territories has become less significant.

Puerto Rico and the CNMI are designated "commonwealths." The principal identifying characteristic of a commonwealth is that the organic act is in the form of a covenant or compact between the U.S. government and the people of the territory. In general, Congress has respected these agreements. However, the courts have held that Congress, acting under the territorial clause, can enact valid legislation that is inconsistent with the covenants.

The United States is in a relationship of "free association" with the Federated States of Micronesia, the Republic of the Marshall Islands, and the Republic of Palau. These island nations, along with what is now the CNMI, were formerly the Trust Territory of the Pacific Islands, for which the United States was trustee. The relationship between the United States and these islands is close. The U.S. government is pledged to defend these nations as if they were part of the United States, and has a veto over any action of any of their governments if the United States considers such action inconsistent with its obligation to defend them. Nevertheless, the three are recognized as sovereign and independent nations by the united nations, and hence the U.S. Constitution has no application to them (except perhaps as to U.S. government officials acting in their official capacities there).

Stanley K. Laughlin, Jr.
(2000)

Bibliography

Laughlin, Stanley K. 1995 The Law of United States Territories and Affiliated Jurisdictions (with 1997 supplement). New York: Lawyers Cooperative-West Group.

TERRITORIES OF THE UNITED STATES

TERRITORIES OF THE UNITED STATES are those dependencies and possessions over which the United States exercises jurisdiction. Until the turn of the nineteenth century, American experience was almost exclusively directed to the creation of territorial governments within the continental United States. The force of the Northwest Ordinance of 1787 set the precedent that territorial status was a step on the path to statehood, during which time residents of the territories maintained their citizenship and their protections under the Constitution. Alaska and Hawaii, admitted in 1959, were the last of the territories to become states and the only exceptions to the pattern of contiguity with existing states and territories. Although new states were admitted, in the twentieth century the United States entered an era when the appropriate destiny of its territorial acquisitions was not necessarily statehood.

For the Spanish possessions ceded to the United States in 1898, the peace treaty did not include the promise of citizenship found in earlier treaties of annexation. Subject only to the limitations of the Constitution, Congress was free to determine the political status and civil rights of the inhabitants. In the Insular Cases, decided in 1901, the Supreme Court held that Congress could distinguish between incorporated and unincorporated territories and that the full guarantees and restraints of the Constitution need not be applied to the latter. Congress uniformly chose to treat its new acquisitions as unincorporated territories and so enjoyed a flexibility not present in the earlier pattern of territorial government.

In common with other dependencies Puerto Rico was initially subject to military control, although this period was brief. Its inhabitants became U.S. citizens in 1917. Civil government with a gradual broadening of self-rule culminated in an act of Congress in 1950 that authorized Puerto Rico to formulate and adopt its own constitution, which came into effect in 1952. While commonwealth status is not the equivalent of statehood and did not terminate U.S. authority, the agreement that neither Congress nor the president should annul Puerto Rican legislation guaranteed the commonwealth the maximum degree of autonomy accorded to any of the territories.

The Virgin Islands were purchased from Denmark in 1917 and citizenship was conferred in 1927. By the early 2000s, the islands had become a popular vacation destination.

Guam did not attract significant attention until World War II, after which it became the site of major military installations. Guamanians became citizens in 1950, framed and adopted a constitution in 1969, and since 1970 have elected their governor as well as members of the legislature.

American Samoa became a distinct entity in 1899 and remained under the administration of the U.S. Navy until 1951. In 1960 a constitution was formulated with Samoan participation and was then accepted and promulgated by the secretary of the Interior.

With the exception of Guam, islands of the Caroline, Marshall, and Mariana groups have been held by the United States as trust territories under the United Nations since 1947. The trust agreement charges the United States with the development of the islands toward "selfgovernment or independence."

BIBLIOGRAPHY

Carr, Raymond. Puerto Rico: A Colonial Experiment. New York: New York University Press, 1984.

Stevens, Russell L. Guam U.S.A.: Birth of a Territory. Honolulu: Tongg Publishing, 1956.

Taylor, Bette A. The Virgin Islands of the United States: A Descriptive and Historical Profile. Washington, D.C.: Congressional Research Library, Library of Congress, 1988.

Robert L. Berg / a. g.

See also Caroline Islands ; Guantanamo Bay ; Marshall Islands ; Midway Islands ; Paris, Treaty of (1898) ; Pribilof Islands ; Samoa, American ; Spain, Relations with ; Spanish-American War ; Teller Amendment .