The “national” status of American Samoans under the “unincorporated” territory model is based on allegiance of the non-citizen residents of the island to the United States. In return, American Samoa enjoys “national protection” of the island and its people by the United States.

This ostensibly allows a more limited application of U.S. national law in American Samoa, compared to “unincorporated” territories where Congress imposes a subclass of “U.S. citizenship.” Whether “national” status is more or less advantageous than “citizenship” in other territories is a debatable question shrouded in the same ambiguities that pervade territorial status law and policy.

But it is unambiguous that “unincorporated” status originally was deemed temporary until Congress conferred citizenship leading to incorporation, or denied citizenship and adopted a policy leading to separate nationhood for the territory. In contrast, historically “U.S. citizenship” meant incorporation leading to equal rights through statehood.

Thus, rather than allegiance for national protection, under the incorporation/statehood status model allegiance of citizens is rewarded with equal citizenship rights under the Constitution. That model for territorial integration into the union is based on the anti-colonial tradition of the Northwest Ordinance, a territorial status policy abandoned by the courts and Congress in the dazed and confused 20th century.

Specifically, federal policy classifying some territories as “unincorporated” was invented between 1901 and 1904, not by Congress but the rather by decisions of the U.S. courts. At the time there were nine U.S. territories, the five territories populated by U.S. citizens were defined by the courts as incorporated and became states (Oklahoma, New Mexico, Arizona, Alaska Hawaii). The four territories inhabited by non-citizens were classified by the courts as “unincorporated” (Philippines, Puerto Rico, Guam and American Samoa).

When created by judicial fiat the court noted that “unincorporated” status was never meant to apply to territories populated by U.S. citizens in territories capable of statehood. In the words of the U.S. Supreme Court in 1901, “unincorporated” status for territories without U.S. citizen populations was based on “…denial of the right of the inhabitants to American citizenship until Congress by further action shall assent thereto.”

The legal and political effect that denial of citizenship had was to deny incorporation and application of the Constitution except as temporarily provided by Congress under federal laws adopted and subject to amendment or repeal under the territorial clause.

In 1904 the U.S. Supreme tried to rationalize its 1901 nullification of the Constitution in the territories by ruling that natives of “unincorporated” territories were not aliens but not citizens, and instead were under national protection of the U.S. who thereby “live in the peace of the dominion.” This meant that instead of the incorporation model under which the people give allegiance and get citizenship leading to equality through statehood, the unincorporated territory model is based on allegiance of the people and “national protection” from the U.S. government, and the degree of integration the territory desires.

The questions and answers regarding American Samoa that ensued in the June 24 hearing on Puerto Rico confirmed the logic of an argument that if it is not going to incorporate the territory it should not give citizenship, at least not without making it clear before hand that full equality through statehood is not intended. That reminds us that in Puerto Rico back in 1905 the leaders asking for citizenship actually told Congress don’t do it unless statehood is the final goal, because that would be a return to Spanish colonialism.

Congress and the courts screwed up application of the “unincorporated territory” doctrine under our territorial law, not by conferring citizenship, but by denying incorporation. The solution is self-determination based on legally and politically feasible options.



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