Anti-colonialism | American Civil Liberties Union

Q: What is a “territory” and why does the U.S. have them?

Under the U.S. Constitution , a territory is land “belonging” to the U.S. It is not a state, and it is not a sovereign nation. These lands became U.S. territories when the U.S. bought them, won them as spoils of wars, or “discovered” them. The people living in these countries had no say in those acquisitions. That lack of consent is reflected in their relationship to the U.S. The people in the territories have neither the rights of state residents nor of sovereign nations. They cannot establish trade relations with foreign countries absent congressional consent or engage in any other power typically associated with independent nations. They are totally subject to federal power. Yet, they cannot vote in presidential elections, have no senators, and only a single non-voting representative in the U.S. House of Representatives. The people in the territories are therefore ruled by the federal government but have only very limited influence over the shape of that government.

Question 1

What is a “territory” and why does the U.S. have them?

Accepted Answer

Under the U.S. Constitution, a territory is land “belonging” to the U.S. It is not a state, and it is not a sovereign nation. These lands became U.S. territories when the U.S. bought them, won them as spoils of wars, or “discovered” them. The people living in these countries had no say in those acquisitions. That lack of consent is reflected in their relationship to the U.S. The people in the territories have neither the rights of state residents nor of sovereign nations. They cannot establish trade relations with foreign countries absent congressional consent or engage in any other power typically associated with independent nations. They are totally subject to federal power. Yet, they cannot vote in presidential elections, have no senators, and only a single non-voting representative in the U.S. House of Representatives. The people in the territories are therefore ruled by the federal government but have only very limited influence over the shape of that government.

Question 2

Do people in the territories have access to the same constitutional rights as people in the states?

Accepted Answer

Not always. In 1898, questions arose about the applicability of the U.S. Constitution to the residents of the then newly-acquired overseas territories. In a string of decisions known as the Insular Cases, the Supreme Court ruled that the Constitution applies only “in part" in these territories. The reasons the court gave were explicitly racist. It described the people living in these territories as “alien races” and “savage tribes” and based its decision on the presumed racial inferiority of the non-white people living in the territories. The court has withheld the application of only a few constitutional provisions to the territories. These include provisions on tariffs and taxation to Puerto Rico, and portions of the Fifth and Sixth Amendments, specifically, the right to indictment by a grand jury in Hawaii, Puerto Rico, and the Philippines and the right to trial by jury in Puerto Rico and the Philippines. However, the uncertainty and associated stigma continues to linger over the territories.

Question 3

Are U.S. territories colonies?

Accepted Answer

Yes. A ‘colony’ is a “dependent territorial entity subject to the sovereignty of an independent country, but considered part of that country for purposes of relations with third countries.” Each of the five U.S. territories fits this definition (COLONY, Black's Law Dictionary (11th ed. 2019)).

The United Nations uses a similar term, “non-self-governing territory (NSGT).” The U.N. Charter defines a NSGT as a territory "whose people have not yet attained a full measure of self-government". That means they have not fulfilled their right to self-determination as guaranteed under international law.

17 NSGTs exist today, including three of the five U.S. territories: U.S. Virgin Islands, American Samoa, and Guam. The Northern Mariana Islands (CNMI) was on the U.N. list of non-self governing territories until 1990. Puerto Rico was on the list until 1953. The U.N. removal of this label for CNMI and Puerto Rico is misleading. Like the other U.S. territories, Puerto Rico and CNMI lack sovereignty and are totally subject to federal power. Any semblance of self-government that either territory enjoys can be superseded by the federal government tomorrow.

Question 4

What does the path toward decolonization look like?

Accepted Answer

Three non-colonial options exist under international law. Under U.N. resolution 1541, an NSGT can be said to have reached a full measure of self-government by (1) emergence as a sovereign independent State; (2) free association with an independent State; or (3) integration with an independent State.

Each of these options are illustrated by former U.S. territories. The Philippines became a sovereign independent country in 1946. The Federated States of Micronesia, the Marshall Islands, and Palau became sovereign independent countries in free association with the U.S. in 1990. Alaska and Hawaii became U.S. states in 1959.

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