Unincorporated territories of the United States

Under United States law, an unincorporated territory is an area controlled by the United States government that is not "incorporated" for the purposes of United States constitutional law. In unincorporated territories, the U.S. Constitution applies only partially. In the absence of an organic law, a territory is classified as unorganized. In unincorporated territories, "fundamental rights apply as a matter of law, but other constitutional rights are not available".[1] Selected constitutional provisions apply, depending on congressional acts and judicial rulings according to U.S. constitutional practice, local tradition, and law.[citation needed]

There are currently 13 unincorporated territories, comprising a land area of approximately 12,000 square kilometers (4,600 square miles) containing a population of approximately four million people; Puerto Rico alone comprises the vast majority of both the total area and total population.[citation needed]

Of the 13 territories, five are inhabited. These are either organized or self-governing[2] but unincorporated. These are Puerto Rico, Guam, Northern Mariana Islands, U.S. Virgin Islands, and American Samoa.[3] There are also nine uninhabited U.S. possessions, of which only Palmyra Atoll is incorporated. (See Territories of the United States, Unorganized territory[4] and insular area.)

Overview

All modern inhabited territories under the control of the federal government can be considered as part of the "United States" for purposes of law as defined in specific legislation.[5] However, the judicial term "unincorporated" was coined to legitimize the late–19th-century territorial acquisitions without citizenship and their administration without constitutional protections temporarily until Congress made other provisions. The case law allowed Congress to impose discriminatory tax regimes with the effect of a protective tariff upon territorial regions which were not domestic states.[6]

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 (i.e., of its own force) to the continental 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.[7][8]

To define what is an unincorporated territory, in Balzac v. People of Porto Rico, 258 298 (1922), the Court used the following statements regarding the United States District 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.[9]

In Glidden Co. v. Zdanok, 370 530 (1962) the court cited Balzac and made the following statement regarding courts 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 inhabitants of the ceded territory ... shall be admitted to the enjoyment of all the rights, advantages, and immunities of citizens of the United States;"[10] "This declaration, although somewhat changed in phraseology, is the equivalent, as pointed out in Downes v. Bidwell, of the formula, employed from the beginning to express the purpose to incorporate acquired territory into the United States, especially in the absence of other provisions showing an intention to the contrary."[10]