The smallest U.S. territory doesn’t want federal judges to decide its future, even if the four other other larger and more metropolitan territories do.

By Howard Hills

On June 5th a very interesting article about the political status of U.S. territories appeared in American Samoa’s local online news website.  The article referred to a complicated and intensive political and legal tug-of-war over the last decade about how to interpret and influence the evolution of federal territorial law and policy from 1901 to the present.

One of the latest legal skirmishes in this debate included a recent Department of Justice response to an April 15 letter from a bipartisan coalition of 43 U.S. Senate and House members asking the U.S. Attorney General to direct DOJ to “repudiate” the Insular Cases. That line of U.S. Supreme Court rulings define the five current locally self-governing U.S. territories as “unincorporated,” and therefore not in permanent union under the U.S. Constitution like 32 territories that became states.

The DOJ Responds on Insular Cases

The American Samoan news source reported that American Samoa’s elected member in the U.S. Congress, Representative Amata Coleman Radewagen, had sent a separate letter to the U.S. Attorney General asking for reassurance that any action by DOJ regarding application of the Insular Cases to the other four not change the application of those rulings or federal territorial statutes under those rulings to American Samoa, unless approved locally.

“Congresswoman Uifa’atali Amata in her separate May 7th letter to Attorney General Merrick Garland asked that DOJ not rely on the Insular Cases’ doctrine of territorial non-incorporation to jeopardize American Samoa’s political status…and do so without ‘local democratic self-determination’…Amata argues the Fitisemanu case referred to favorably by the 43 lawmakers in their letter, was an attempt to use the federal courts to change the political status and federal relations for American Samoa without local self-determination. And under the Constitution’s Territorial Clause, she says that’s a political question for Congress, not within the jurisdiction of the federal courts.” Congresswoman Amata concludes DOJ’s letter “does not repudiate the actual federal territorial law of the Insular Cases, ‘that defines unincorporated territory status—something consistent with both legal and political realities in the modern era Insular Cases.’ Now, she wants the Justice Department to put that in writing.”

To put it very simply, American Samoa has some laws based on cultural traditions which would be unconstitutional under the U.S. Constitution. Since the Constitution doesn’t fully apply in unincorporated territories, this is not a problem. If the situation changes, it would become a problem.

Less simply but more accurately, the political status and federal-territorial relations in the case of the other four territories is defined by federal territorial organic statutes enacted under the Insular Cases after conquest, purchase and/or annexation, with delegation of limited local powers of self-government that those territories seek to change in favor of new more favorable terms. In contrast, American Samoa’s federal- territorial relations are based on 1900 and 1904 Deeds of Cession mutually accepted and agreed without conquest, purchase or annexation. Consequently, the Insular Cases and unincorporated status have not prevented the U.S. and American Samoa from honoring both U.S. sovereignty and local self-determination with reciprocity and good will according to the Deeds of Cession.

That includes a 1929 federal law ratifying the Deeds of Cession, under which the President delegated to Secretary of the Interior authority to approve a locally adopted constitution and manage federal territorial relations. Since the U.S. Constitution doesn’t fully apply in unincorporated territories, this has allowed local autonomy and preservation of local cultural that is not found in incorporated territories and states where the Constitution applies in full.

That legal and political debate has included a decade long series of federal court cases and Congressional hearings on the same questions at issue in those court cases, seeking determinations about how federal statutes and decisional law under federal court rulings apply in the territories. In some cases federal law applies uniformly in all territories, but in many if not most matters each territory conducts local and federal-territorial affairs based on its unique history under U.S. sovereign rule.

Puerto Rico chose statehood

Amidst the controversies and accomplishments arising from the ambiguities of territorial status, Puerto Rico is the only territory that seems to have had enough of of its perennial politically incestuous internal debate over status. Since 2012 Puerto Rico, the largest, most populous and most developed territory, has formally voted and petitioned Congress for a change of political status, and is on record seeking transition from statutory territory status to the constitutionally defined status of statehood. Voters have rejected continued territory status and view the constitutionally recognized status of separate sovereign nationhood (independence with or without a treaty of free association) as the only alternative to statehood.

Samoa wants to remain a territory

In contrast, American Samoa is not only the smallest locally self-governing territory, but the only territory that has formally advised the U.S. courts and Congress that it wants no material change in its current territorial status and federal-territorial relations. That is, unless a future change is initiated locally and approved by a local act of self-determination, rather than unilaterally by Congress or the federal courts.

Guam, the Northern Mariana Islands, and the U.S. Virgin Islands want reforms. They also have local self-government like Puerto Rico and American Samoa, and have been enabled by Congress to establish local constitutions subject to supremacy of federal law. These three territories have proposed federal statutory reforms to treat Americans residing there more like Americans in states, while also preserving the special treatment each territory receives under federal territorial law.

What all five territories have in common is a political status defined by both the Insular Cases and also under federal statute law as “unincorporated territory.” Because the court-made law of non-incorporation under the Insular Cases also has been made applicable by Congress to other territories, Congress has the lead role in answering calls for changes in federal territorial law and policy applicable to all the five territories, as well as calls for changes applicable to one or just some but not all territories.

Equality without statehood?

While Guam, Northern Marianas and USVI are perennially on record as aggrieved by the lack of equality with Americans in states, so far preserving the local territorial regime while seeking “like-a-state” enhancements seems to be the priority, since statehood and independence appear out of reach and/or undesirable. But it is incontrovertible that as long as U.S. nationality, citizenship and sovereignty continue, full equality with the states is not possible for territories.

That’s true because fully equal voting rights in federal elections for fully equal representation in Congress and the Electoral College are restricted to voters in states. States and courts would have to agree that non-residents can vote in states. So, while greater equity for territories is realistic, the only way to attain full equality with states is for a territory to be integrated into an existing state, or be admitted as a state.

Only a constitutional amendment seeking treatment of territories the same as states will change that constitutional reality. However, admission as a state would be far more likely. Indeed, in the Puerto Rico v. Sanchez Valle case the court majority held that Congress can treat U.S. nationals and citizens in territories differently than in states.

One size fits all?

Lawsuits asking courts to change territorial law and policy for all territories, and similar proposed recession of federal statutes with the same pan-territorial scope, have generally failed because there is no “one size fits all” solution to territorial status issues. America Samoa was included in lawsuits (e.g. Fitisemanu v. U.S.) seeking changes in the status of persons born there, but the real purpose was to change the status of American Samoans and thereby change to the status of all Americans born or living in any of the territories.

American Samoa supports changes in the status of other territories according to self-determination for each. But at the same time, American Samoa’s government intervened in more than one court case to oppose court-ordered changes to its political status. Most importantly, this narrative respects the positions of all five territories, allowing each jurisdiction to pursue its own aspirations.

Howard Hills served as Counsel on Territorial Status Negotiations, Executive Office of the President (1982-1986); Counsel for Interagency Affairs, Office of Free Associated State Affairs, U.S. Department of State (1986-1989); Senior Advisor, Office of the Secretary of Interior and Special Presidential Envoy for Compact of Free Association Negotiations (2000-2023); author, “Citizens Without A State,” Amazon (2021).



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