By Howard Hills
H.R. 9246, the Puerto Rico Democratic Self-determination Act, gives four options for Puerto Rico’s political status: statehood, independence, sovereign free association, and the current territory status. It defines free association by listing some points the author imagines Puerto Rico can work into the Compact of Free Association the new Republic of Puerto Rico would negotiate with the U.S. federal government. One is that “the provision of citizenship by the laws of Puerto Rico shall not constitute or otherwise serve as the basis of loss, or relinquishment of United States citizenship under such section.” That is, the entire new nation of Puerto Rico would be composed of people with dual Puerto Rico/U.S. citizenship. Unfortunately for those who like this idea, the promise of free association with U.S. citizenship is false advertising.
The history of U.S. citizenship in Puerto Rico
In 1899, when the Kingdom of Spain ceded sovereignty in Puerto Rico to America, neither Spain nor the U.S. proposed or agreed to dual national citizenship for persons born in the territory before or after the stars and stripes were raised. Instead, Congress retained power under Article IX of the cession treaty to determine the “civil rights and political status” of the territory’s inhabitants.
In 1900, Congress exercised its Article IV power over U.S. territory not within a state and adopted a territorial organic act for Puerto Rico. It declared that persons residing on the island at the time the treaty took effect were “citizens” of the territory. An exception was carved out for persons who declared allegiance to Spain, but the inhabitants who did not retain Spanish citizenship and any who did collectively were classified by Congress in 1900 as the “people of Puerto Rico.”
That did not create dual U.S. and Spanish citizenship, because it did not confer the status or rights of either U.S. or Spanish national citizenship. Rather, it defined a territory and population under the “protection of the United States,” until Congress exercised its power over territories to further define the status and rights of the territory and “people of Puerto Rico.” That body politic comprised a class of persons with no national citizenship recognized under any U.S. law or international law.
U.S. Supreme Court refused to do the job of Congress
In 1901, the U.S. Supreme Court noted in a landmark ruling that the treaty between the U.S. and Spain did not confer U.S. national citizenship, and thereby did not establish permanent union under the Constitution. Instead, the court ruled that only Congress rather than the courts can further define the national political status and civil rights of the territory and its people under Article IX of the treaty.
In 1904, the Supreme Court recognized that the people of Puerto Rico were not aliens under federal immigration law. But the court upheld the 1901 ruling by the court that civil rights and political status of the inhabitants were akin to an unincorporated protectorate by the U.S. under the 1899 treaty and 1900 organic act.
In 1917, Congress got the court’s message, sort of, and exercised its Article IV territorial authority in combination with its Article I power to naturalize citizens by conferring statutory birthright U.S. citizenship in Puerto Rico. That act carved out a six-month window for people to choose Spanish or other foreign citizenship, whereupon such persons would be subject to U.S. immigration law. All other eligible inhabitants of the territory not declaring allegiance to a foreign power became U.S. citizens.
Dual Nationality and Citizenship Creates Dual Allegiance
Under the Compact of Free Association (COFA) between U.S. and sovereign nations of Palau, Micronesia, Marshall Islands, there is no conferral of dual U.S. citizenship for children born in and owing allegiance to those three Free Associated States (FAS). Residence in the U.S. under COFA visa waiver does not count toward naturalization. So, FAS citizens must qualify for permanent residence and naturalization as American citizens under the same U.S. immigration law as people from all other nations.
In that legal and historical context, what makes the non-voting member of the U.S. House from Puerto Rico who sponsored H.R. 9246 think the U.S. Congress is going to agree to dual U.S. and Puerto Rico nationality, citizenship, or dual allegiance? That would enable foreign persons born in the separate sovereign nation of Puerto Rico to retain statutory U.S. citizenship based on the federal territorial statute conferring U.S. citizenship on the parents born in a territory. That would include the entire population of Puerto Rican nationals, after territorial status has ended and separate sovereignty has been recognized for Puerto Rico.
Congress Never Created Dual Allegiance by Operation of U.S. Law
Section 408(c)(1) of H.R. 9246 correctly recognizes that U.S. citizenship will end under federal Immigration and Nationality Act Section 1401(c), (d) and (g). In a sleight of hand that can only prove clever to a fault, H.R. 9246 “hides the ball” in an attempt to leave the door open to dual U.S. and Puerto Rico citizenship under free association. This very intentional omission is a deceptive scheme to revise 8 USC 1401 to remove Subsection (e) from the repeal of our Immigration and Nationality Act.
That is the trick proposed to amend federal law and mandate statutory U.S. citizenship in a future sovereign Republic of Puerto Rico, even though current statutory citizenship is conferred only by territorial statutes in a U.S. territorial possession. Puerto Rico will not be a U.S. territorial possession under free association, so there is no legal or political predicate or justification for Congress to confer U.S. nationality and citizenship in a sovereign nation recognized as such by the U.S and under international law. The promise of free association with U.S. citizenship in HR9246 is deceptive.
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