The Straight Dope on U.S. Territories

By Michael David Rawlings

While all formally owned possessions of the United States do reside within the wider, territorial boundaries of the United States' national allegiance and, therefore, within the United States' martial-judicial jurisdiction, the jurisdiction of the Fourteenth Amendment encompasses the several states of the Union and the incorporated territories of the United States only. The Fourteenth Amendment's jurisdiction strictly pertains to the full slate of constitutional rights and privileges of U.S. citizenship, not to the administrative jurisdiction that the United States might wield at any given time over formally owned or leased possessions abroad.¹

Even the formally owned, unincorporated territories are not integral parts of the United States proper; that is, they do not constitute American soil for constitutional purposes under the Fourteenth Amendment unless explicitly stipulated otherwise by Congress, and such statutory grants are limited and conditional. Territories leased by the United States, like the former Panama Canal Zone, are foreign soil, unincorporated territories that reside within the martial-judicial jurisdiction of the United States only. They in no way, shape or form reside within the territorial boundaries of the United States' national allegiance, let alone within the jurisdiction of the Fourteenth Amendment. Currently, the only leased territory held by the United States is Guantomino Bay, Cuba.

Current law provides that persons born in the unincorporated Commonwealths of Puerto Rico and the Northern Mariana Islands, and in the organized-unincorporated territories of Guam and the United States Virgin Islands are U.S. citizens at birth, but they are barred from fully participating in federal elections while residing within the boundaries of these territories. No doubt, many would be surprised to learn that persons born in these territories are eligible to run for the presidency should they ever decide to establish residence in the United States proper. If they are at least thirty-five years old and have at least fourteen years of U.S. residency, they could go for it.

The residents of the unorganized-unincorporated territories of American Samoa and Swains Island are U.S. nationals only, but the naturalization process for them is virtually automatic should they ever choose to come to the United States proper and reside there for the prerequisite period of time. U.S. nationals, like U.S. citizens, may move freely anywhere within the territorial boundaries of the United States' national allegiance—no passport required. Previously, the terms "insular areas" and "outlying possessions" (or "overseas possessions") were used interchangeably and applied to all unincorporated territories. Today, by definition, these terms apply to all formally owned, unincorporated territories that are not organized—that is, not equipped with their own semi-autonomous governments. Officially, by statute, these terms apply to the inhabited territories of American Samoa and Swains Island only—though these are de facto self-governing under the aegis of the federal government. The other territories that fall under this category by definition (i.e., technically, though not officially) are the uninhabited or mostly uninhabited possessions of Wake Island, the Midway Islands, Johnston Atoll, Baker Island, Howland Island, Jarvis Island and Kingman Reef.

Currently, the U.S. holds only one incorporated territory that is not organized. This is the tiny territory of the Palmyra Atoll named after the U.S.S Palmyra that was wrecked there in 1802. The Palmyra Atoll was once part of the Kingdom of Hawaii, later the Republic of Hawaii and then the incorporated Hawaii Territory of the United States. Its ties to Hawaii were severed when the latter was granted statehood, so it's been exclusively managed by the federal government ever since. As an incorporated territorial possession, it does in fact reside within the jurisdiction of the Fourteenth Amendment. Thus, any person born there would be a natural-born citizen, not merely a U.S. national, but, except for a small handful of custodians employed by the federal government and some scientists employed by the Nature Conservancy Company, it is uninhabited.

The distinction between incorporated and unincorporated territories, along with the complexities, did not arise until after the Spanish-American War when a defeated Spain ceded its colonial islands in the Pacific and Caribbean. Prior to that, before the rulings of the Insular Cases, the U.S. had acquired lands by annexation and the resulting territories were automatically conferred the status of U.S. soil—incorporated and typically organized. Ceded, unincorporated territories can be organized and incorporated, or not. It's up to Congress. Also, the native residents of organized-unincorporated territories can be granted U.S. citizenship or be left holding the bag as second-class residents of the United States, that is, U.S. nationals. Again, it's up to Congress.

Hence, the most striking difference between incorporated territories and unincorporated territories (those not fully part of the United States and to which the Constitution does not fully apply automatically) is the standing of each within the American family. Once a territory is incorporated, it cannot be "disinherited" without being granted full independence, and while the native residents of an organized-unincorporated territory can be granted U.S. citizenship by Congress, Congress can also rescind that grant for any future residents yet to be born past a certain date without granting that territory its independence. Now those who were citizens before would retain their citizenship, of course, but persons born beyond that date would not be U.S. citizens, but U.S. nationals only. In other words, while U.S. law currently confers U.S. citizenship on persons linked to the soil or to the blood of certain unincorporated territories, it does so on a contingency basis.

Would Congress ever actually snatch the conferral of citizenship back from an unincorporated territory once granted? No, of course not. Imagine the political upheaval. There would be riots in the streets. Uncle Sam would be burned in effigy. The only politically practical future for an organized-unincorporated territory like the Commonwealth of Puerto Rico, for example, would be statehood or independence.

The premises of U.S. military installations and diplomatic facilities residing beyond the territorial boundaries of the United States' national allegiance are forms of territories constituting "American soil" under the provisions of treaties or those of international law only; they do not constitute American soil for constitutional purposes in any way, shape or form. The only things remotely like these that do reside within the territorial boundaries of the United States for constitutional purposes are aircraft and sailing vessels beyond the immediate surfaces and coastlines of the American landscape—up to twelve nautical miles respectively. But beyond the United States' sovereign airspace and territorial sea, even American-registered aircraft and U.S. flag vessels are not American soil for constitutional purposes. On the other hand, the extensions of the latter's roving displacements and adjacent ranges of salvage are unorganized-unincorporated territories residing within the United States' martial-judicial jurisdiction by statutory proclamation.

C. Birth on U.S. Military Bases Outside of the United States or Birth on U.S. Embassy or Consulate Premises Abroad:

(1) Despite widespread popular belief, U.S. military installations abroad and U.S. diplomatic or consular facilities abroad are not part of the United States within the meaning of the 14th Amendment. A child born on the premises of such a facility is not born in the Untied States and does not acquire U.S. citizenship by reason of birth there.

(2) The status of diplomatic and consular premises arises from the rules of law relating to immunity from the prescriptive and enforcement jurisdiction of the receiving State; the premises are not part of the territory of the United States of America.²

MARTIAL-JUDICIAL JURISDICTION

Guantomino Bay, Cuba - Leased Possession; U.S. Diplomatic and Military Facilities; U.S. Flag Vessels

THE TERRITORIAL BOUNDARIES OF THE UNITED STATES' NATIONAL ALLEGIANCE

ORGANIZED-UNINCORPORATED (NATIONAL OUTLYING TERRITORIES/POSSESSIONS)

Commonwealth of the Northern Mariana Islands - U.S. Citizens

Commonwealth of Puerto Rico - U.S. Citizens

Guam - U.S. Citizens

United States Virgin Islands - U.S. Citizens

UNORGANIZED-UNINCORPORATED (FEDERAL OUTLYING POSSESSIONS)

American Samoa - U.S. Nationals

Swains Island - U.S. Nationals

Midway Islands - Inhabited by Caretakers Only

Wake Island - Inhabited by U.S. Military and Civilian Contractors Only

Johnston Atoll - Uninhabited

Baker Island - Uninhabited

Howland Island - Uninhabited

Jarvis Island - Uninhabited

Kingman Reef - Uninhabited
Navassa Island - Uninhabited
Serranilla Bank - Uninhabited (administered by Columbia; claimed by the U.S.)
Bajo Nuevo Bank - Uninhabited (administered by Columbia; claimed by the U.S.)


UNORGANIZED-INCORPORATED (FEDERAL OUTLYING POSSESSION)
Palmyra Atoll - Inhabited by Scientists (rotating, temporary non-occupants)

FOURTEENTH AMENDMENT'S JURISDICTION

The Fifty States

The District of Columbia

 

___________________________
¹U.S. Department of State Foreign Affairs Manual Volume 7 - Consular Affairs, "7 FAM 1120 ACQUISITION OF U.S. NATIONALITY IN U.S. TERRITORIES AND POSSESSIONS (CT:CON-315; September 3, 2009)", https://fam.state.gov/FAM/07FAM/07FAM1120.html; Wikipedia, http://en.wikipedia.org/wiki/Territories_of_the_United_States.

²United States Department of State Foreign Affairs Manual Volume 7 - Consular Affairs; "7 FAM 1110 ACQUISITION OF U.S. CITIZENSHIP BY BIRTH IN THE UNITED STATES; 7 FAM 1113 NOT INCLUDED IN THE MEANING OF 'IN THE UNITED STATES' (CT:CON-314; August 21, 2009); 1113.c.(1), (2)"; pg. 5 of 13; https://fam.state.gov/FAM/07FAM/07FAM1110.html.

Next article in the series:  Was Senator John McCain a U.S. Citizen at Birth?