The queen, Colonialism and the reality of America’s own expansionism

As a law professor who begins every class (no matter the subject) with at least five minutes of discussion about what is happening in the world and our nation, I took a lot of flak last month for mentioning the life and reign of Queen Elizabeth II. I've been accused of "endorsing colonialism." But what my critics appear to not know is that America - now, today, is a colonialist empire.

America rules over and imposes second-class citizen status on five inhabited island territories in both the Atlantic and Pacific Oceans: Guam, the Commonwealth of the Northern Mariana Islands (CNMI), American Samoa, Puerto Rico, and the U.S. Virgin Islands.

Everyone born in those territories (except for those in American Samoa) is an American citizen. This is the born-on-American-soil equals citizenship provision of the 14th Amendment of the U.S. Constitution. ("All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.")

Inhabited U.S. Territories' Representatives Cannot Vote in Congress

Each of the five inhabited U.S. territories has a non-voting (silent) delegate, or in Puerto Rico's case, a resident commissioner in the U.S. House of Representatives. Recall that in early 2021, U.S. Virgin Islands Delegate Stacey Plaskett was a house manager (a congressional prosecutor) on the second Trump impeachment proceeding - the one concerning the insurrection at the capitol. However, because Plaskett resided in a U.S. territory and not a state, she was barred from voting with other House members on whether and what impeachment charges should be sent to the U.S. Senate.

Not only do federal House delegates of our current "colonies" have no ability to vote in the House, they have zero representation in the U.S. Senate and they do not participate in the selection of those who technically elect the president and vice president in the electoral college.

Americans of the U.S. Territories Can Only Vote for President if They Move Off-Island

Only when the American citizens of Guam, the U.S. Virgin Islands, Puerto Rico, and those of the Commonwealth of the Northern Mariana Islands relocate to one of the 50 states or the District of Columbia can those island-born Americans vote for president.

Each of the five territories' non-voting delegates (or commissioners) in the U.S. House has a "house.gov" website and a Washington, D.C. office (with other Congresspeople) at the Rayburn Building. (Guam; USVI; Puerto Rico; Commonwealth of the Northern Mariana Islands and American Samoa.)

Each territory's house.gov website makes clear, to some degree, that the territories' "head of state" is the President of the United States and that their territorial matters are overseen by an agency of the federal executive branch (Art. II of the Constitution) - the U.S. Secretary of Interior and, more specifically, to the Office of Insular Affairs (OIA).

With some estimates as high as 98% of the residents of the five inhabited territories being of minority descent, congressional oversight of the territories is tucked into committees which also oversee Indian Affairs. (House and This tacit emphasis on the skin color and ethnic origin of the people living in America's territorial acquisitions took hold after America's 1898 victory over Spain in the Spanish-American War. The 10 week-long conflict (what an American governmental official called a "splendid little war") would help America catch-up to other nations of the world with empire building.

America took from Spain such places as Puerto Rico and Guam, joining (at the dawn of the 20th century) the British and other European nations in manifesting imperialistic dominance over far-away places on the globe.

The Spanish-American war whetted even more U.S. colonial expansion overseas. Months after the war's end, America also added American Samoa to its expanse of U.S. territories (secured from Britain and Germany in 1899) and annexed Hawaii, where in 1893, American corporate interests (headed by a pineapple mogul named "Dole") operating in Hawaii had forcibly removed Hawaii's Queen and set up a white-male mainland-directed government on the Hawaiian lands. America, in a sense of ironic foreshadowing of WWII, would use Hawaii's Pearl Harbor in 1898 as a naval base to fight the Spanish in the Pacific theater.

According to U.S. State Department archives, for most of the 1800s leaders in Washington were concerned that Hawaii might become part of a European nation's empire so, America ultimately added Hawaii to its list of overseas territorial acquisitions. All of these territories - whether by conquest or treaty - would be places where the land acquisition's inhabitants' rights, living conditions, and quality of life would be determined by Congress in D.C.

Congress Has the Power to Add New States Through Legislation; It's in the Constitution

Until the acquisitions from the Spanish-American War, America had a systematic and methodical way of creating new states from existing territories based on both (i) Thomas Jefferson's Northwest Ordinance of 1787 (which encouraged state-building and the admission of new states once a territory had sufficient inhabitants and a written governing document) and (ii) two provisions of Article IV, section 3 of the 1787 Philadelphia U.S. Constitution, specifically:

a) [New states may be admitted by the Congress into the Union" ... with the consent of Congress") - the "equal footing doctrine"

and, in

b) [section 3, clause 2] which states that "Congress shall have the power to dispose of and make all needful rules and regulations respecting the territory or property of the United States," the ownership of federal property clause.

All new U.S. states would have equal footing and equal rights as all other existing states. There would be no stepchildren states. In the decade before the Spanish-American War (1888-1898) as the 19th century drew to a close, America followed its "all states have equal footing" doctrine and added North and South Dakotas, Montana and Washington State to the flag in 1889, as states 39 through 42 (But the anticipated progression from territory to statehood would stop as America, like its mother country, became an empire and extended its territorial reach in the Pacific and Atlantic Oceans.

The Supreme Court Enshrined Second-Class Status

The federal courts, starting in 1901, gave America (and Congress) "legal cover" to treat overseas territories differently from those of America's contiguous land acquisitions. The cases were given an arguably pejorative name, "the Insular Cases" from the Latin "insula" meaning island, but in the day also meaning those with a primitive, isolated or ignorant world-view.

The Supreme Court, in the case of Downes v. Bidwell (1901), addressed this solely new political question as to how the newly acquired America territories of the American empire should be treated.

Were the new lands gathered into the American fold "as a result of a successful war" to be treated like the contiguous territories on the mainland or were they "insular" or backward possessions "inhabited by different races, differing from us in religion, customs ... modes of thought... [so much so that making] the administration of justice according to Anglo-Saxon principles,...for a time [to] be impossible?"

The high court decided that these American territorial land acquisitions, as they were occupied by uncivilized "alien races" and "savages" who were "ignorant and lawless" would be given a new status. They would be called "unincorporated" territories where the U.S. Constitution would not be fully followed or incorporated on those lands. These backward places would not be on a path to eventual statehood (like the contiguous state territories) and no one in these places could claim the rights of other states and territories.

The Supreme Court's conclusion? The federal government would be permitted to "rule" Puerto Rico and other territories largely without regard to the Constitution.

The U.S. Supreme Court Has Endorsed The Second-Class Status Of America's Colonial Acquisitions

These cases from the 1900s are still good law today and have been cited as precedent by the U.S. Supreme Court as recently as April 2022, in United States v. Vaello Madero. There the Court ruled that since Puerto Rico was an unincorporated territory, not a state, its citizens (along with those in the other U.S. territories), although Americans or American nationals are not entitled to Social Security disability benefits provided to "Americans" of the 50 states.

In 1959, Hawaii was granted statehood by Congress by a wide margin, but no similar effort was made on Puerto Rico's behalf. Hawaii did have extensive mainland-directed business interests, private industry workers and a stable workforce of government.

According to the 1950 U.S. census, the territory had demonstrated an increase in Caucasians to include many married "young women" (pp.1-2) and a "large number of children" who showed high rates of fertility (p.3). Although other North American land acquisitions became states, including Oklahoma, New Mexico, Arizona and Alaska, Puerto Rico remained unincorporated.

All born in the American island territories in 2022 can acquire American passports and live in places where English is the primary language and the U.S dollar is the currency. So, too, with American Samoans - although the word "national" is stamped onto their passports instead of the word "citizen". Some of these places have high rates of military service, including American Samoa, which has had the highest rate of military service enrollment than any other state or U.S. territory. So too with Guam where a significant percentage of Guam's adult population has also served in the military. But that does not obviate the deprivations and differences that American territories face when compared with U.S. states.

These deficiencies include substandard medical care, deficient broadband and wifi access, and substandard infrastructure for things like buildings, roads, bridges and drinking water.

Last month, these deficiencies were revealed to the world in the aftermath of Hurricane Fiona, which left practically all of Puerto Rico without electrical power. Without statehood, funds from FEMA (the Federal Emergency Management Agency) are slow to materialize. Puerto Rico still has not recovered from Hurricane Maria of 2017, which resulted in millions of Americans losing power and thousands of deaths. FEMA issued an "after-action" report, admitting culpability in creating a humanitarian disaster in the U.S. territory replete with supply shortages and an inability to coordinate logistics with on-the-ground personnel. Although President Biden announced on Sept. 22 that FEMA funds will be headed to Puerto Rico in the wake of hurricane Fiona, there needs to be more to elevate our sister-territories to state-status.

The Honorable Stacey Plaskett, a non-voting U.S. House of Representatives delegate to the U.S. Virgin Islands, posted a tweet on Sept. 20 that best encapsulated the needs of the U.S. territories. She tweeted: "So now that Queen Elizabeth has been laid to rest, can American news networks focus on the devastation in the AMERICA location of Puerto Rico."

Courts and Congress Can Fix This

The U.S. Supreme Court and Congress should take note of two more things:

To our highest court: overrule the Insular Cases.

When Justice Neil Gorsuch, in 2022, upheld the denial of federal disability benefits to residents of Puerto Rico, he explained in his Vaello Madero concurrence that he did so because "no party [to the litigation] ask[ed] us to overrule the Insular Cases." Those cases, he said, were the product of bigotry and have no founding or support in the original words of the U.S. Constitution.

The justice wrote, "[n]othing [in the U.S. Constitution] authorizes judges to engage in the sordid business of segregating territories and the people who live in them on the basis of race, ethnicity, or religion."

And to the Congress: Nothing in the post-Civil War U.S. Constitution authorizes your continued complicity in denying rights to Americans of our current colonial territories. Without delay and through legislation, make the U.S. territories states.

Finally, rectify the second-class status that has, in large measure, circumscribed the lives of over 3.5 million who call America home.