Will 3.5 Million U.S. Citizens Choose Tribal Status Over Statehood?
Rafael Hernandez Colon is a veteran leader of the autonomy party that opposes both statehood and independence for Puerto Rico. For 68 years the autonomy party has claimed the current “commonwealth” regime of territorial government is a constitutionally permanent “autonomous associated state.” Hernandez Colon is the author of the autonomist party’s revisionist manifesto promising followers “commonwealth” was a new sovereign political status that combines the best features of both statehood and nationhood.
In 2016 the U.S. Supreme Court ruled that the “commonwealth” regime has no constitutionally defined sovereignty or vested autonomous powers (Puerto Rico v. Sanchez Valle, 136 S. Ct. 1863). The high court’s ruling confirmed that federal territorial laws allowing U.S. citizenship in 1917 and a 1952 territorial constitution did not change the territorial status Puerto Rico has had since ceded by Spain and annexed by the U.S. in 1900. This ruling further confirmed “commonwealth” is a revocable federal statuary delegation of powers to administer purely local civil affairs not otherwise determined by federal law.
In another 2016 ruling the U.S. Supreme Court upheld denial of “state like” treatment of Puerto Rico under federal bankruptcy laws (Puerto Rico v. Franklin Cal. Tax Free Tr., 136 S. Ct. 1938). That ruling cleared the way for full implementation of federal territorial law imposed by Congress mandating suspension of the “commonwealth” constitution, and federal takeover of the local government as necessary to restore fiscal order and public solvency.
These court rulings taken together explicitly confirm that Congress retains all inherent and residual sovereignty, and that the inherent sovereign rights of the people remain in abeyance and subject to the power of Congress over territories not within a state. In the Sanchez Valle ruling the high court explicitly stated constitutionally defined sovereignty can not vest until territorial status ends and Puerto Rico attains either statehood or sovereign nationhood.
To be sovereign a nation must be recognized under U.S. and international law as having a status consistent with the right of a self-governing people to full political independence. Under applicable principles embodied in U.N. Res. 742, Res. 748 (1953), Res. 1514, Res. 1541 (1960) and Res. 2526 (1970), any “autonomous associated free state” status must be defined by a treaty that is terminable at will by either party in favor of constitutionally defined political independence. If not it is by definition not sovereign.
Consistent with those U.S. and international principles of self-determination, the 2016 court rulings on Puerto Rico’s status provide a legal context for recognition of the territory’s post-Cold War era people power democratization movement. In historic acts of self-determination legally certified majority votes for statehood in political status plebiscites were achieved in 2012 and 2017. Hernandez Colon and the autonomist party dispute the official Election Commission interpretation and certification of the results, but no one credibly can dispute that a majority voted to end the current status in favor of statehood.
These judicial rulings and the plebiscite majorities (projected to increase in future votes) are ideologically catastrophic for Hernandez Colon and the autonomy party. Since independence has never won more than 5% of the vote in multiple status plebiscites, Hernandez Colon’s autonomy party has by default become a de facto anti-statehood minority party.
From Territory to Indian Reservation, Really?
Rather than now seeking real constitutionally defined sovereignty through statehood or nationhood, Hernandez Colon is aligning himself with advocates of an ethnic identity based political status modeled after that of the Native American tribes! The notion that the “Indian law” model of federal relations with tribal governments can be a bridge to non-territorial sovereign autonomy for Puerto Rico is almost funny.
Is this a historical joke in very bad taste from a lost script for a Mel Brooks sequel to Blazing Saddles? Or is it the desperate ideological obsession of a man who has dedicated six decades of his life to the “commonwealth” political status hoax that has gone up in a puff of smoke?
It brings to mind former Secretary of State Colin Powell’s admonition about being careful in politics what you ask for, because you just might get it. If Puerto Rico gets what Hernandez Colon is asking for to stroke his own ideological vanity, the tragic “sovereign nation” saga of Native Americans could become the fate of the 3.5 million U.S. citizens in America’s last large and populous territory.
Pay-To-Play “Indian Law Scholarship”
Creating an academic, legal and media propaganda smokescreen for autonomist doctrine has become Hernandez Colon’s trademark. Ironically, Hernandez Colon overplayed his hand when former one-term autonomist party Governor Alejandro Garcia Padilla used public and political party funds for paid academics, lobbyists and federal court law clerks to write legal briefs advocating “Indian law” political status doctrines for Puerto Rico.
“Indian law” — the laws defining the political status of Native American tribes — don’t apply to Puerto Rico, but the autonomist party has been trying to force a connection.
The irony in this clumsy propaganda scheme is that “Indian law” political status legal briefs were submitted to the U.S. Department of Justice to advocate inclusion of a “sovereign autonomous commonwealth” status option on a Congressionally authorized status plebiscite (U.S. Public Law 113-76). The Department of Justice rejected that “commonwealth” status definition and declined to certify the ballot for a plebiscite under P.L. 113-76.
However, having been alerted and put on notice of unconstitutional legal doctrine in the Garcia Padilla funded “Indian law“ legal briefs, the U.S. Department of Justice, Office of the Solicitor General, submitted legal briefs in the 2016 Sanchez Valle case unequivocally repudiating and nullifying autonomy party ideology asserting that the “commonwealth” regime of territorial government is or can become a constitutionally defined sovereign political status.
The U.S. Supreme Court’s opinion in the Sanchez Valle case was fully consistent with the Solicitor General’s brief rejecting the ideological manifesto of Hernandez Colon and the “commonwealth” autonomy party. Autonomist party ideological marketing financed by the anti-statehood oligarchy thriving under the territorial status quo once more was revealed as a hoax.
But the only way to drive a stake through the heart of the hoax is to reveal what the reality of “commonwealth” autonomy based on tribal status for Puerto Rico would really be.
Statehood Secures Native American U.S. Citizenship Rights – Not “Indian Nation” Status
Native American tribes recognized as “sovereign nations” under federal “Indian law” have collective tribal rights, but do not exercise rights of U.S. citizenship under “Indian law.” Rather, Native Americans participate in government by consent under the U.S. Constitution based on federal statute law conferring U.S. citizenship rights for tribal peoples, including the right to vote in federal elections.
The people of Puerto Rico can not achieve through tribal nation status even the equal rights that Native Americans possess. That is because, unlike the people of Puerto Rico who do not live in a state, the Native American peoples are citizens whose tribal lands and governments are located in states of the union. That means equal rights of both national and state citizenship, not for the severing tribal nations collectively but for individual Native Americans, including voting rights in federal elections allocated by the U.S. Constitution only to citizens of the states.
Because Puerto Rico is not a state or within a state, the only thing tribal “sovereignty” will mean is Puerto Rico’s surrender to perpetual denial of collective and individual equality and liberty. The “Indian law” status proposed by Hernandez Colon, his protege Garcia Padilla, and their stable of hired academics, lobbyists and law clerks would deliver Puerto Rico into the subordinate condition of a legally defined ethnic subculture with the status of a legal and political subclass.
Whether labelled “sovereign” in name only or not, any form of local self-government based on “Indian law” rather than statehood or real nationhood will institutionalize inferior delegated powers, subject to the retained under the supremacy of federal territorial law.
Instead of a form of sovereign independence with or without a treaty of association recognized by the United Nations and the United States under International law, the tortured charade of “Indian law” sovereignty suddenly is good enough for a beleaguered Hernandez Colon. But is that good enough for 3.5 million U.S. citizens awakened to the reality that only statehood or nationhood based on the right of all people independence will secure real sovereignty for Puerto Rico?
Trading Places, Going Native
For decades Hernandez Colon and the autonomy party platform declared Puerto Rico a unique and “idiosyncratic” cultural and political society, distinct from all others in America. Yet, now Hernandez Colon has openly associated and aligned himself with a collaborative project promoting convergence of Puerto Rico’s political and legal status under U.S. rule with the status and rights of Native American tribes under federal “Indian law.”
The first work product of this project made public is an exhaustive legal study in the the New York University Law Review. This study was paid for by then sitting incumbent anti-statehood Governor Garcia Padilla of the autonomy party. So it comes as no surprise that study concludes that federal “Indian law provides instructive analogies to Puerto Rico,” including a model of “domestic dependent status” and “retained inherent sovereign authority.”
Historical comparisons and legal analogies between Puerto Rico and Native American tribes are inherently without legal, political, cultural or moral logic. PRT51ST has addressed the fallacy of anti-statehood propaganda exploiting tragic aspects of American “Indian” tribal status to score ideological points in the Puerto Rico status debate.
In addition, when advocates of “dependent sovereignty” for Puerto Rico based their deeply flawed proposal on the Native American tribal status model under federal “Indian law,” that proposal was authoritatively rebutted by professor William Cleary. As an international territorial law expert, Dr. Cleary served in senior government law posts in Guam and Micronesia. Professor Cleary has also revealed other fallacies propagated in Congress by “autonomy” leaders.
Dr. Cleary definitively repudiated the unsustainable attempt by anti-statehood advocates to advance a “dependent sovereignty” status model for Puerto Rico, based on the U.S. Supreme Court’s ruling on “Indian law in the Lara case. Yet, after the 2016 U.S. Supreme Court ruling in the Sanchez Valle case nullified claims that Puerto Rico’s “commonwealth” regime possessed any vested rights of sovereign authority, the Puerto Rico’s autonomist party saw it as an existential threat.
In 2017 Hernandez Colon’s ideological finger prints were conspicuous on a series of anti-statehood autonomist party legal essays appearing in the Harvard Law Review Forum. Those legal essays were a thinly veiled attempt to re-brand Hernandez Colon’s failed doctrine of “autonomous commonwealth” under the public relation advertising slogan “Territorial Federalism.”
As an ambush on free democratic self-determination based on the options of statehood or nationhood for Puerto Rico, the autonomist party-sponsored Harvard Law Review essays were a flop. The legal arguments against statehood and nationhood as the options for change, and assertions favoring a new federalism just for territories, was deconstructed in an authoritative rebuttal by Federal Court of Appeals Judge Juan R. Torruella.
The legally empty and intellectually hollow content of the “Territorial Federalism” essays on the Harvard Law Review dismantled by Judge Torruella is epitomized by the following assertion: “Territorial federalism…has provided an avenue by which the territories and their residents have reaped federalism’s benefits despite the formal contours of the federal-territory relationship as reflected in contemporary constitutional doctrine.”
Translation: Home rule benefits and privileges in Puerto Rico under federal territorial law and policy make “ commonwealth” virtually “like statehood,” except that it is not “formal” because it is not constitutionally defined and does not guarantee the most fundamental rights of citizenship, including government by consent through voting rights in federal elections. How does territorial status “reap” a viable status when it’s based on less than equal citizenship rights in perpetuity?
Deciphering A New Hoax
As noted above, the NYU article asserts federal “Indian law provides instructive analogies to Puerto Rico,” including a model of “domestic dependent status” and “retained inherent sovereign authority.”
The use of the words “sovereign authority” is of an importance that can hardly be over-stated. What that means for the Indian nations is left to interpretation by Congress and the federal courts, but what it does not mean is clear and not subject to interpretation. “Sovereign authority” does not mean “irrevocable” or “vested” authority, and thus can mean “delegated” and “revocable.”
As such “Sovereign authority” does not mean “constitutionally vested” much less “supreme power” or “supreme law of the land” for the Native American tribal governments.
“Sovereign authority” can be delegated and exercised by an inferior political subdivision of a supreme sovereign. The sovereign with the inherent sovereign right and power can delegate “sovereign authority” to be exercised by the inferior political subdivision with permission of the superior sovereign. Similarly, the words “Inherent” and “retained” modifying the word “authority” do not mean “vested rights” or “residual national sovereign power.”
In the U.S. system of constitutional federalism, federal law is supreme, powers of the federal government under the U.S. Constitution can be delegated to the states or other political subdivisions. Sovereign powers not given to the federal government under the U.S. Constitution are reserved to the people of the states. But not to Native American tribes, even though “sovereign nations” as that term used for purposes of “Indian law.”
All “sovereign authority” of political subdivisions – including Native American tribes – remains subject to the supreme power of Congress and the federal courts, exercising federal powers by direct action or interpretation, and reversing, superseding or nullifying the exercise of delegated or inferior sovereign authority.
Mixing Native American Law and Territorial Law Reveals a Fatal Flaw
The NYU article is correct that there are “instructive analogies” between federal Indian law and policy, on one hand, and federal territorial law and policy, on the other. For example, it may well be true that in an anachronistic and legalistic sense the Indian tribes “retain” an “inherent sovereign authority” under the so-called Indian Treaties that recognize Indian nations as sovereign.
But by analogy that very analogy is fatal to the Puerto Rican autonomist proposal to adapt and adopt the Native American tribal status model. The is because unlike the federal “Indian law,” neither the Territory Clause of the U.S. Constitution nor any statutory or court made federal territorial law and policy recognizes any inherent sovereign authority or vested sovereign powers in the territories.
To the contrary, the 2016 ruling by the U.S. Supreme Court in the Sanchez Valle case confirms incontrovertibly that the federal government has never vested rights to a political status – much less inherent powers of sovereignty – in any U.S. territory. That truism also is confirmed by a 1994 U.S. Department of Justice legal opinion on territorial status rights, the importance of which the NYU article recognizes but lamely and unsuccessfully tries to refute.
Rather, the Sanchez Valle ruling confirms that unless and until territory status ends, all powers of sovereign government exercised by a local territorial regime instituted under federal territorial organic laws are in the nature of a constitutionally temporary and revocable delegation. Even the provision of the original Northwest Ordinance articles of incorporation declaring its promise of statehood a “compact unalterable except by consent” was subject to repeal or amendment by Congress.
That court ruling consequently means that sovereignty rights do not vest unless and until Puerto Rico is admitted as a state of the union or becomes a sovereign nation based on the right of independence. The later can include “free association” under a treaty terminable at will by either party, but that status exists under international law, not “Indian law” or “Indian treaties” that are unique to U.S. Constitutional traditions.
In that context the NYU article misleadingly asserts the 1952 act of Congress, unilaterally imposing amendments to the Puerto Rico constitution as a condition precedent to its entry into force, somehow irrevocably vested inherent sovereign powers in the territorial regime. In reality the 1952 constitution granted revocable authority and all claims to the contrary have been discredited since first made by autonomist leaders to local supporters at that time.
Indeed, even the record of 1953 proceedings in the U.N. and the General Assembly Resolution (748) recognizing the degree of autonomy attained by Puerto Rico under the new constitution, also recognized that the “compact” of “association” was not final or permanent. The legal memo circulated by he U.S. to the U.N. at that time explicitly confirmed that the federal government retained full sovereign powers under the U.S. Constitution and federal law, including those of the Congress and the federal courts regarding U.S. territories.
Voting Rights, Consent of Governed, Inherent Sovereignty
This brings us, then, to the most important of the “instructive analogies” between the Native American “Indian” nations and Puerto Rico, which is that the Indian nations are in states of the union, and have been recognized by Congress and the courts to have birthright U.S. citizenship since 1924 – seven years after Puerto Rico.
As a result, the Native Americans in the Indian nations have the same rights as citizens of the states to vote for representation in Congress and the Electoral College. U.S. citizens in Puerto Rico do not have voting rights in federal elections, because Puerto Rico is not a state of the union, or within a state of the union.
That means that unlike the “autonomous commonwealth” of Puerto Rico, the Native Americans in the “Indian Nations” participate equally in the constitutional process for consent of the governed. That includes not only in Congress and the Electoral College, but in the appointment of the Supreme Court, which is the co-equal branch of the federal government that determines how the supreme law of the nation applies to all individual citizens and the states, as well as to Indian national and territories.
Thus, the Native American tribal nations can be recognized to have a sovereign political status as a collective body politic with tribal rights. Still, it is U.S. national citizenship combined with state citizenship that give native Americans the right to vote in federal elections, if and as otherwise eligible under federal and state law.
Like the Native American tribes, Puerto Rico can be given delegated or declared “sovereign” status by act of Congress. Still, that merely would enable Puerto Rico like the Native American tribes to preserve cultural and ethnic identity, customs, traditions and collective political and economic interests, under and subject to applicable local and federal law. It would not create equal political and legal rights of U.S. national citizenship that constitutionally can be exercised only if coupled with state citizenship – including federal voting rights.
Nor would it enable fully democratic self-government under local or national law. In short, it would not resolve the political status dilemma for Puerto Rico. Indeed, as demonstrated above it would address the political status problem for Puerto Rico even less satisfactorily than tribal status under federal law has for Native Americans because disenfranchisement and denial of federal voting rights would continue for Puerto Rico.
The most that the authors of the NYU piece can say about how federal “Indian law” might apply to Puerto Rico is their truly pathetic admission that under federal Indian law policy the Congress and courts “…will not lightly undermine self-government.” That is an admission that under “Indian law” the federal government can, does and, frankly, always will, undermine Native American self-government as deemed necessary or proper by Congress, the President and/or the Supreme Court.
In doing so, all three branches are free to act with without the consent of the Native American tribes despite recognition of their sovereign nation status. The same would be true of a “sovereign” Puerto Rico remaining under U.S. rule but not a state or within a state.
For both Native American tribes and the “sovereign” Puerto Rico envisioned by Hernandez Colon’s autonomist party, being a “sovereign nation” in name does not empower or enfranchise people to participate in consent of the governed. It is only as individual citizens of the state in which they reside that Native Americans are able to participate individually and collectively in the process for consent of the governed to the supreme law under which we live within the United States.
Consent of the governed to supreme federal law and restraints on federal powers and supremacy of federal law, including the 10th Amendment reserving residual inherent rights of sovereignty to the people and the states, become operative only in a state of the union. For tribal and territorial governments all “sovereign” acts are subject to the supremacy of federal law. That is all that the territories and tribal “nations” have in common.
Hernandez Colon’s Legacy
It is embarrassing to see former Governor Hernandez Colon “playing Indians” with the future of his people. How and why has it come to this?
The answer may lie in the reality that the current territorial “commonwealth” regime of local government has not culminated in “autonomous sovereign association” and never will. That means Hernandez Colon and the autonomy party delayed the social, political and economic development of his people through self-determination leading to statehood or nationhood for 65 years.
To understand his level of motivation to stop statehood and even seek ethnic subclass status, one must realize that Hernandez Colon’s vision and prodigious labors seeking to secure autonomy with sovereignty now appear to have been a 70 year hoax. Given his brilliance and the appearance of sincere devotion to his cause, whether he was perpetrator or victim of that hoax, or both, remains a mystery, and probably always will.