Unincorporated territories

This article is about the individual political entities currently or formerly called "United States territories". For the various forms of the jurisdiction of the United States, see United States territory.

Template:Administrative divisions of the United States

Territories of the United States are a type of political division that is directly overseen by the United States federal government, in contrast to the states, which share sovereignty with the federal government. The territories were created to govern newly acquired land while the borders of the United States were still evolving; many of the boundaries of territories changed over time, when territories were subdivided or shifted, as when a portion of a territory was admitted as a state. Territories can be classified by whether they are incorporated (part of the United States proper) and whether they have an organized government (through an Organic Act passed by the U.S. Congress).[1]

Many organized incorporated territories of the United States existed from 1789 to 1959 (the first being the Northwest and the Southwest Territory, the last being the Alaska Territory and the Hawaii Territory), through which 31 territories applied for and achieved statehood. In the process of organizing and promoting territories to statehood, some areas of a territory demographically lacking sufficient development and population densities were temporarily orphaned from parts of a larger territory at the time a vote was taken petitioning Congress for statehood rights. For example, when a portion of the Missouri Territory became the state of Missouri, the remaining portion of the territory, consisting of the present states of Iowa, Nebraska and the Dakotas, most of Kansas, Wyoming, and Montana, and parts of Colorado and Minnesota, effectively became an unorganized territory.

The U.S. had no unincorporated territories (also called "overseas possessions" or "insular areas") until 1856 but continues to control several of them today.

21st century territories

“The United States is not a nation of states, and never has been,” notes political geographer and historian Bartholomew Sparrow.[2] By Act of Congress, the term ‘United States,’ when used in a geographical sense, means “the continental United States, Alaska, Hawaii, Puerto Rico, Guam, the Virgin Islands of the United States.” Since political union with the Northern Marianas in 1986, they too are treated as a part of the U.S.[3] An Executive Order in 2007 includes American Samoa as U.S. “geographical extent” duly reflected in U.S. State Department documents.[4]

The five inhabited U.S. territories have local voting rights, have protections under U.S. courts, pay some U.S. taxes, and are represented in the U.S. Congress by delegates who can appoint constituents to the Army, Navy, Air Force and Merchant Marine academies. Approximately 4 million islanders are U.S. citizens; about 55,000 U.S. non-citizen nationals live in Samoa. Under current law among the territories, "only persons born in American Samoa and Swains Island are non-citizen U.S. nationals". Samoans are under the protection of the U.S., with freedom of U.S. travel without visas, and U.S. citizens do not lose citizenship by permanent residence there.[5]

Inhabited United States territories have democratic self-government, in local three-branch governments, found respectively in Pago Pago, American Samoa; Hagåtña, Territory of Guam; Saipan, Commonwealth of the Northern Mariana Islands; San Juan, Commonwealth of Puerto Rico; Charlotte Amalie, United States Virgin Islands.[6] Nine uninhabited territories administered by the Interior Department are Baker Island, Howland Island, Jarvis Island, Johnston Atoll, Kingman Reef, Midway Atoll, Navassa Island, Palmyra Atoll, and Wake Island.[7]

Every two years, U.S. citizens of the inhabited territories popularly elect “Members of Congress”, titled Congressman or Congresswoman. They “possess the same powers as other members of the House, except that they may not vote when the House is meeting as the House of Representatives.” They participate in debate, are assigned offices, money for staff, and appoint constituents from their territories to the four military academies Army, Navy, Air Force and Merchant Marine Academy.[8]

Like the delegate from District of Columbia, they do not vote in a roll call vote, but they vote on all legislation before Congress as equals in their standing committees, they are included in their party count for each committee, and they are equal to senators on conference committees. Depending on the congress, they may also vote on the floor in the House Committee of the Whole.[9]

Members of Congress from the territories seated as of January 2013 are: Gregorio Sablan for the Northern Marianas; Madeleine Bordallo for Guam; Eni Faleomavaega for Samoa; Pedro Pierluisi for Puerto Rico; and Donna Christian-Christensen for the Virgin Islands.[10]

Incorporated and unincorporated territories

An incorporated territory of the United States is a specific area under the jurisdiction of the United States, over which the United States Congress has determined that the United States Constitution is to be applied to the territory's local government and inhabitants in its entirety (e.g., citizenship, trial by jury), in the same manner as it applies to the local governments and residents of the U.S. states. Incorporated territories are considered an integral part of the United States, as opposed to being merely possessions.[11]

All territory under the control of the federal government is considered part of the "United States" for purposes of law.[12] From 1901 to 1905, the U.S. Supreme Court in a series of opinions known as the Insular Cases held that the Constitution extended ex proprio vigore (by its own force) to the territories. However, the Court in these cases also established the doctrine of territorial incorporation, under which the Constitution applies fully only in incorporated territories such as Alaska and Hawaii, and applies only partially in the new unincorporated territories of Puerto Rico, Guam and the Philippines.[13][14]

To define what is an unincorporated territory in Balzac v. People of Porto Rico, 258 U.S. 298, 312 (1922), the Court used, as an argument of non-incorporated territory, the following statements regarding the court in Puerto Rico:

The United States District Court is not a true United States court established under article 3 of the Constitution to administer the judicial power of the United States therein conveyed. It is created by virtue of the sovereign congressional faculty, granted under article 4, 3, of that instrument, of making all needful rules and regulations respecting the territory belonging to the United States. The resemblance of its jurisdiction to that of true United States courts, in offering an opportunity to nonresidents of resorting to a tribunal not subject to local influence, does not change its character as a mere territorial court.[15]

In unincorporated territories:

Upon like considerations, Article III has been viewed as inapplicable to courts created in unincorporated territories outside the mainland, Downes v. Bidwell, 182 U.S. 244, 266 -267; Balzac v. Porto Rico, 258 U.S. 298, 312 -313; cf. Dorr v. United States, 195 U.S. 138, 145 , 149, and to the consular courts established by concessions from foreign countries, In re Ross, 140 U.S. 453, 464 -465, 480. 18

The U.S. Supreme Court offers two ways in which incorporation could be made: "incorporation is not to be assumed without express declaration, or an implication so strong as to exclude any other view."

In Downes v. Bidwell, 182 U.S. 244, 319 (1901)) the Court also said:

When the various treaties by which foreign territory has been acquired are considered in the light of the circumstances which surrounded them, it becomes to my mind clearly established that the treaty-making power was always deemed to be devoid of authority to incorporate territory into the United States without the assent, express or implied, of Congress, ...

Express or Implied?

In Balzac,[16] where Chief Justice Taft delivered the opinion of the Court, the meaning of “implied” was specified:

Had Congress intended to take the important step of changing the treaty status of Puerto Rico by incorporating it into the Union, it is reasonable to suppose that it would have done so by the plain declaration, and would not have left it to mere inference. Before the question became acute at the close of the Spanish War, the distinction between acquisition and incorporation was not regarded as important, or at least it was not fully understood and had not aroused great controversy. Before that, the purpose of Congress might well be a matter of mere inference from various legislative acts; but in these latter days, incorporation is not to be assumed without express declaration, or an implication so strong as to exclude any other view.

Incorporated Territories U.S. Supreme Court declarations

In Rassmussen v. U S, 197 privileges and immunities clause of the Constitution to them. The U.S. Supreme Court statements follow:

Alaska Territory

Congress express declaration:

Rassmussen v. the United States (197 U.S. 516, 522 (1905)) arose out of a misdemeanor conviction in Alaska by a jury composed of six persons pursuant to a federal statute allowing such a procedure in Alaska. In a decision written by Justice White, a majority of the Court concluded that Alaska had been incorporated into the United States because the treaty of cession with Russia specifically declared that "the inhabitants of the ceded territory shall be admitted to the enjoyment of all the rights, advantages and immunities of citizens of the United States.[19]

In addition, there was Congressional implication so strong as to exclude any other view:

That Congress, shortly following the adoption of the treaty with Russia, clearly contemplated the incorporation of Alaska into the United States as a part thereof, we think plainly results from the act of July 20, 1868, concerning internal revenue taxation, chap. 186, 107 (15 Stat. at L. 167, U. S. Comp. Stat. 1901, p. 2277), and the act of July 27, 1868, chap. 273, extending the laws of the United States relating to customs, commerce, and navigation over Alaska, and establishing a collection district therein. 15 Stat. at L. 240. And this is fortified by subsequent action of Congress, which it is unnecessary to refer to.
Rassmussen at 533–534

Justice Brown, in his concurring opinion, also expressed the same thought:

Apparently, acceptance of the territory is insufficient in the opinion of the court in this case, since the result that Alaska is incorporated into the United States is reached, not through the treaty with Russia, or through the establishment of a civil government there, but from the act of July 20, 1868, concerning internal revenue taxation, and the act of July 27, 1868, extending the laws of the United States relating to the customs, commerce, and navigation over Alaska, and establishing a collection district there. Certain other acts are cited, notably the judiciary act of March 3, 1891, making it the duty of this court to assign [197 U.S. 516, 534] the several territories of the United States to particular Circuits.

Florida Territory

In Dorr v. USA (195 U.S. 138, 141-142 (1904)) Justice Marshall is quoted more extensively as follows:

The 6th article of the treaty of cession contains the following provision:

The inhabitants of the territories which His Catholic Majesty cedes the United States by this treaty shall be incorporated in the Union of the United States as soon as may be consistent with the principles of the Federal Constitution, and admitted to the enjoyment of the privileges, rights, and immunities of the citizens of the United States. [8 Stat. at L. 256.] [195 U.S. 138, 142] 'This treaty is the law of the land, and admits the inhabitants of Florida to the enjoyment of the privileges, rights, and immunities of the citizens of the United States. It is unnecessary to inquire whether this is not their condition, independent of stipulation. They do not, however, participate in political power; they do not share in the government till Florida shall become a state. In the meantime Florida continues to be a territory of the United States, governed by virtue of that clause in the Constitution which empowers Congress 'to make all needful rules and regulations respecting the territory or other property belonging to the United States." [20]

In Downes v. Bidwell, 182 U.S. 244, 256 (1901), Justice Brown says:[21]

The same construction was adhered to in the treaty with Spain for the purchase of Florida (8 Stat. at L. 252) the 6th article of which provided that the inhabitants should 'be incorporated into the Union of the United States, as soon as may be consistent with the principles of the Federal Constitution;

Southwest Territory

In Downes v. Bidwell supra at 321–322, the first mention of incorporation is made in the following paragraph by Justice Brown:[21]

In view of this it cannot, it seems to me, be doubted that the United States continued to be composed of states and territories, all forming an integral part thereof and incorporated therein, as was the case prior to the adoption of the Constitution. Subsequently, the territory now embraced in the state of Tennessee was ceded to the United States by the state of North Carolina. In order to insure the rights of the native inhabitants, it was expressly stipulated that the inhabitants of the ceded territory should enjoy all the rights, privileges, benefits, and advantages set forth in the ordinance 'of the late Congress for the government of the western territory of the United States.

Louisiana Territory

In Downes v. Bidwell supra at 252, it was said:[21]

Owing to a new war between England and France being upon the point of breaking out, there was need for haste in the negotiations, and Mr. Livingston took the responsibility of disobeying his (Mr. Jefferson's) instructions, and, probably owing to the insistence of Bonaparte, consented to the 3d article of the treaty (with France to acquire the territory of Louisiana), which provided that 'the inhabitants of the ceded territory shall be incorporated in the Union of the United States, and admitted as soon as possible, according to the principles of the Federal Constitution, to the enjoyment of all the rights, advantages, and immunities of citizens of the United States; and in the meantime they shall be maintained and protected in the free enjoyment of their liberty, property, and the religion which they profess.' [8 Stat. at L. 202.] This evidently committed the government to the ultimate, but not to the immediate, admission of Louisiana as a state, ...

The Supreme Court of the United States is unanimous in its interpretation that the extension of the privileges and immunities clause of the Constitution of the United States to the inhabitants of a territory in effect produces the incorporation of that territory. The net effect of incorporation is that the territory becomes an integral part of the geographical boundaries of the United States and cannot, from then on, be separated. Indeed, the whole body of the U.S. Constitution is extended to the inhabitants of that territory, except for those provisions that relate to its federal character.

More so, the needful rules and regulations of the territorial clause must yield to the Constitution and the inherent constraints imposed on it in dealing with the privileges and immunites of the inhabitants of the incorporated territory. Notice must be taken that incorporation of a territory takes place through the incorporation of its inhabitants, not of the territory per se. As such, those inhabitants receive the full impact of the U.S. Constitution, except for those provisions that deal specifically with the federal character of the Union.

In the contemporary sense, the term "unincorporated territory" refers primarily to insular areas. There is currently only one incorporated territory, Palmyra Atoll, which is not an organized territory. Conversely, a territory can be organized without being an incorporated territory, a contemporary example being Puerto Rico.

See organized incorporated territories of the United States and unincorporated territories of the United States for timelines.

Organized Territory

Land under the sovereignty of the Federal government (but not part of any state) that were given a measure of self-rule by the Congress through an Organic Act subject to the Congress’ plenary powers under the territorial clause of Article IV, sec. 3, of the U.S. Constitution.[22]

Classification of current U.S. territories

Incorporated organized territories

No incorporated organized territories have existed since 1959, the last two being Territory of Hawaii and Territory of Alaska, both of which achieved statehood in that year.

Incorporated unorganized territories

There are also "territories" that have the status of being incorporated but that are not organized:

  • U.S. coastal waters out to 12 nautical miles offshore (except state waters extend a minimum of 3 nautical miles offshore).
  • U.S. flagged vessels at sea, naval, coast guard, or civilian.

Unincorporated organized territories

Unincorporated unorganized territories

Islands in the Pacific Ocean
Islands in the Caribbean Sea

Extraterritorial jurisdiction

The United States exercises some degree of extraterritorial jurisdiction overseas areas such as:

  • U.S. Embassies;
  • Guantanamo Bay Naval Base (since 1903): A 45 sq mi (117 km2) area of land along Guantánamo Bay, Cuba, to which the United States claims to hold a perpetual lease;[32] This Cuban government does not recognise America's claim and thus, for the last several decades, the Cuban government has refused to deposit the US government check for the annual lease payment.
  • Certain other parcels in foreign countries held by lease, such as military bases, depending on the terms of a lease, treaty, or status of forces agreement with the host country.

Classification of former U.S. territories and administered areas

Former incorporated organized territories of the United States

See Organized incorporated territories of the United States for a complete list.

Former unincorporated territories of the United States (incomplete)

Former unincorporated territories of the United States under military government

  •  Puerto Rico (April 11, 1899 – May 1, 1900): civil government operations began
  •  Philippines (August 14, 1898[33] – July 4, 1901): civil government operations began
  •  Guam (April 11, 1899 – July 1, 1950): civil government operations began

Areas formerly administered by the United States

Other zones

See also


External links

  • , 182 U.S. 244 (1901) regarding the distinction between incorporated and unincorporated territories
  • , 302 U.S. 253 (1937) regarding application of U.S. law to organized but unincorporated territories
  • , 404 U.S. 558 (1972) regarding application of U.S. law to unorganized unincorporated territories
  • Television Stations in U.S. Territories
  • Unincorporated Territory
  • Office of Insular Affairs
  • Application of the US Constitution in US Insular Areas
  • Department of the Interior Definitions of Insular Area Political Organizations
  • United States District Court decision addressing the distinction between Incorporated vs Unincorporated territories
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