U.S. Insular Areas: Application of the U.S. Constitution (Letter Report,
11/07/97, GAO/OGC-98-5).
Pursuant to a congressional request, GAO provided information on the
applicability of provisions of the Constitution to: (1) the five insular
areas GAO previously reported on 1991; and (2) on nine insular areas on
which GAO had not previously reported.
GAO noted that: (1) no significant change has occurred since 1991 in the
application of the Constitution to, and the legal status of, the five
insular areas on which GAO reported at that time; (2) some, however, are
actively seeking greater political autonomy; (3) referendums were held
in Puerto Rico and the Virgin Islands on political status options and,
in February 1997, a bill concerning Puerto Rico's political status was
reintroduced in the 105th Congress; (4) a bill that would have granted
the Commonwealth of Northern Mariana Islands (CNMI) a non-voting
delegate to the U.S. Congress was considered but not enacted in the
104th Congress; (5) in January 1997, a bill to grant commonwealth status
to Guam was reintroduced in the 105th Congress; (6) a tax credit
previously available for corporations doing business in insular areas is
being phased out; (7) the Puerto Rico and Possessions Tax Credit, as
originally enacted, allowed corporations to receive a tax credit for
business income earned in the territories in an amount equal to their
full U.S. income tax liability; (8) a 1993 amendment limited the amount
of the credit; (9) in 1996, the law was amended further to provide that,
after a 10-year transition period, the credit will no longer be
available; (10) several court decisions during the last 6 years have
addressed the applicability of constitutional provisions to individual
insular areas; (11) two decisions discuss, in the context of the
Territorial Clause of the Constitution, the relationship of an insular
area with the United States; (12) in a case involving the CNMI, the
court looked for guidance to the Covenant, the agreement which
establishes the legal relationship between the CNMI and the United
States and which has been approved by federal statute; (13) in the
second case, the court concluded that, while the Congress has granted
the right of local self-government to Puerto Rico, there has been no
fundamental alteration in Puerto Rico's constitutional relationship to
the United States; (14) of the nine smaller insular areas not addressed
in GAO's earlier report, eight are unincorporated and unorganized
territories of the United States to which only "fundamental" personal
rights under the Constitution apply; (15) in 1900, in a law that remains
in force, the Congress extended the Constitution in its entirety to the
ninth area, Palmyra Atoll; and (16) while no definitive determination
has been made concerning the current status of Palmyra, it seems likely
that a court would conclude that the Constitution continues to apply in
its entirety.
--------------------------- Indexing Terms -----------------------------
REPORTNUM: OGC-98-5
TITLE: U.S. Insular Areas: Application of the U.S. Constitution
DATE: 11/07/97
SUBJECT: Territories and possessions
Congressional powers
Constitutional law
Political rights
Constitutional rights
Tax credit
Municipal home rule
IDENTIFIER: Puerto Rico
Virgin Islands
American Samoa
Guam
Northern Mariana Islands
Baker Island
Howland Island
Jarvis Island
Johnston Atoll
Kingman Reef
Midway Atoll
Palmyra Atoll
Wake Island
Navassa Island
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Cover
================================================================ COVER
Report to the Chairman, Committee on Resources, House of
Representatives
November 1997
U.S. INSULAR AREAS - APPLICATION
OF THE
U.S. CONSTITUTION
GAO/OGC-98-5
The U.S. Constitution and Insular Areas
(996215)
Abbreviations
=============================================================== ABBREV
CNMI - Commonwealth of the Northern Mariana Islands
FSC - foreign sales corporation
NAFTA - North American Free Trade Agreement
Letter
=============================================================== LETTER
B-271897
November 7, 1997
The Honorable Don Young
Chairman
Committee on Resources
House of Representatives
Dear Mr. Chairman:
More than 4 million U.S. citizens and nationals live in insular
areas\1
under the jurisdiction of the United States. The Territorial Clause
of the Constitution authorizes the Congress to "make all needful
Rules and Regulations respecting the Territory or other Property" of
the United States.\2 Relying on the Territorial Clause, the Congress
has enacted legislation making some provisions of the Constitution
explicitly applicable in the insular areas. In addition to this
congressional action, courts from time to time have ruled on the
application of constitutional provisions to one or more of the
insular areas.
You asked us to update our 1991 report to you on the applicability of
provisions of the Constitution to five insular areas: Puerto Rico,
the Virgin Islands, the Commonwealth of the Northern Mariana Islands
(the CNMI), American Samoa, and Guam. You asked specifically about
significant judicial and legislative developments concerning the
political or tax status of these areas, as well as court decisions
since our earlier report involving the applicability of
constitutional provisions to these areas. We have included this
information in appendix I.
Figure 1: Pacific Ocean
Insular Areas
(See figure in printed
edition.)
(See figure in printed
edition.)
Figure 2: Western Caribbean
Insular Areas
(See figure in printed
edition.)
(See figure in printed
edition.)
In addition, you asked us to report on the status of, and provide
background information pertaining to, nine insular areas on which we
have not previously reported.\3 These nine are small islands or
atolls, most of which are uninhabited. We summarize the
constitutional status of, and provisions applicable to, the nine
smaller insular areas.\4 We also provide answers to a number of
specific questions from your staff concerning these areas. Detailed
information about the histories and current status of each of the
smaller insular areas appears in appendix II.
To develop our report, we obtained information from the Coast Guard,
the Departments of the Interior, State, Navy, and Justice, the
Congressional Research Service, the Parliamentarian of the House of
Representatives, and a representative of the owners of Palmyra Atoll.
We also reviewed court decisions and federal legislation, both
proposed and enacted, from 1991 to the present, and examined other
relevant published materials, including executive orders, the
legislative histories of federal laws, books, and articles in law
reviews and other journals. Ruth Van Cleve, formerly Special
Assistant, Office of the Solicitor, Department of the Interior,
reviewed a draft at our request and provided comments.
--------------------
\1 As we did in our 1991 report on this issue, Applicability of
Relevant Provisions of the U.S. Constitution (GAO/HRD-91-18, June
20, 1991), we use the phrase "insular areas" to include all
territories over which the United States exercises sovereignty. Each
of these areas has a unique historical and legal relationship with
the United States.
\2 U.S. Const. art. IV, � 3, cl. 2.
\3 Baker Island, Howland Island, Jarvis Island, Johnston Atoll,
Kingman Reef, Midway Atoll, Palmyra Atoll, Wake Island, and Navassa
Island.
\4 For convenience in distinguishing between the two groups of
insular areas, we sometimes refer in this report to the nine insular
areas we have not previously reported on as the "smaller insular
areas," and to the five areas that were the subject of our earlier
report as the "larger insular areas."
RESULTS IN BRIEF
------------------------------------------------------------ Letter :1
No significant change has occurred since 1991 in the application of
the Constitution to, and the legal status of, the five insular areas
on which we reported at that time. Some, however, are actively
seeking greater political autonomy. Referendums were held in Puerto
Rico and the Virgin Islands on political status options and, in
February 1997, a bill concerning Puerto Rico's political status was
reintroduced in the 105th Congress. A bill that would have granted
the CNMI a non-voting delegate to the U.S. Congress was considered
but not enacted in the 104th Congress. In January 1997, a bill to
grant commonwealth status to Guam was reintroduced in the 105th
Congress.
A tax credit previously available for corporations doing business in
insular areas is being phased out. The Puerto Rico and Possessions
Tax Credit (section 936 of the Internal Revenue Code), as originally
enacted, allowed corporations to receive a tax credit for business
income earned in the territories in an amount equal to their full
U.S. income tax liability. A 1993 amendment limited the amount of
the credit. In 1996, the law was amended further to provide that,
after a 10-year transition period, the credit will no longer be
available.
Several court decisions during the last 6 years have addressed the
applicability of constitutional provisions to individual insular
areas. Two decisions discuss, in the context of the Territorial
Clause of the Constitution, the relationship of an insular area with
the United States. In a case involving the CNMI, the court looked
for guidance to the Covenant,\5 the agreement which establishes the
legal relationship between the CNMI and the United States and which
has been approved by federal statute. Although acknowledging that
the CNMI remains subject to the Territorial Clause, the court
emphasized that the provisions of the Covenant, as approved by the
Congress, "define the boundaries" of the relationship between the
United States and the CNMI. In the second case, the court concluded
that, while the Congress has granted the right of local
self-government to Puerto Rico, there has been no fundamental
alteration in Puerto Rico's constitutional relationship to the United
States: Puerto Rico remains subject to the Territorial Clause.
Of the nine smaller insular areas not addressed in our earlier
report, eight are unincorporated and unorganized territories of the
United States to which only "fundamental" personal rights under the
Constitution apply.\6 In 1900, in a law that remains in force, the
Congress extended the Constitution in its entirety to the ninth area,
Palmyra Atoll. Palmyra was once part of the Territory of Hawaii, but
was expressly excluded when Hawaii became a state. While no
definitive determination has been made concerning the current status
of Palmyra, it seems likely that a court would conclude that the
Constitution continues to apply in its entirety.
--------------------
\5 Covenant to Establish a Commonwealth of the Northern Mariana
Islands in Political Union with the United States of America,
approved by Pub. L. No. 94-241, 90 Stat. 263 (1976), 48 U.S.C. �
1801 note.
\6 In general, fundamental rights, applicable to all individuals
subject to the sovereignty of the United States, are "inherent,
although unexpressed principles which are the basis of all free
government." Dorr v. United States, 195 U.S. 138, 147 (1904);
Downes v. Bidwell, 182 U.S. 244, 282-83 (1901). The Supreme Court
has not defined precisely which parts of the Constitution establish
fundamental rights. Reid v. Covert, 354 U.S. 1, 13 (1957). See
appendix I for further discussion.
BACKGROUND
------------------------------------------------------------ Letter :2
The larger insular areas have come under the sovereignty of the
United States in various ways. Puerto Rico and Guam were ceded to
the United States by treaty at the end of the Spanish-American War in
1898. The Virgin Islands were purchased from Denmark in 1917.
Following the renunciation by Great Britain and Germany of their
claims to what is now American Samoa and the cession by the Samoan
chiefs to the United States of these islands, the Congress, in 1929,
ratified the instruments ceding the islands to the United States.\7
The United States was responsible for administering the Northern
Mariana Islands after World War II under a United Nations trusteeship
agreement. Ultimately, a covenant between the United States and the
Northern Marianas established the islands as a commonwealth under the
sovereignty of the United States.\8
At present, general federal administrative responsibility for the
CNMI, Guam, the Virgin Islands, and American Samoa is vested in the
Department of the Interior. Under terms of its covenant, the CNMI
consults regularly with the United States on all matters affecting
the relationship between them. All departments, agencies, and
officials of the executive branch treat Puerto Rico administratively
"as if it were a state;" any matters concerning the fundamentals of
the U.S.-Puerto Rican relationship are referred to the Office of the
President.\9
Since the United States established sovereignty over the five larger
insular areas, each has pursued greater self-government. Initially,
military governors had responsibility for Puerto Rico, Guam, the
Virgin Islands, and American Samoa; governors were later replaced by
civilian administrators, most of whom were appointed by the
President. The CNMI, as a United Nations Trust Territory, was
administered by the United States acting through the Navy.
Eventually, each of the five larger areas was authorized to elect its
own governor. In addition, the Congress authorized all of the larger
areas to adopt their own constitutions. Puerto Rico, American Samoa,
and the CNMI have internal self-government under locally-adopted
constitutions. Guam and the Virgin Islands have not adopted local
constitutions and remain under organic acts approved by the Congress.
People born in Puerto Rico, Guam, the CNMI, or the Virgin Islands are
American citizens; those born in American Samoa are American
nationals.\10 The residents of all five of the larger insular areas
enjoy many of the rights enjoyed by U.S. citizens in the 50 states.
But some rights which, under the Constitution, are reserved for
citizens residing in the states have not been extended to residents
of the insular areas. For example, residents of the insular areas
cannot vote in national elections, nor do they have voting
representation in the final approval of legislation by the full
Congress.
Most of the nine smaller insular areas you asked about were
discovered by adventurers in the late 18th and early 19th centuries
and were claimed by representatives of the United States in the
latter part of the 19th century under the 1856 Guano Islands Act.\11
The act provides legal and military protection for American
entrepreneurs mining guano, or bird droppings, for use in the United
States; most of these nine insular areas were used by private
companies as sources of guano, which they sold as fertilizer.
None of the smaller insular areas has a native population or local
government. Midway Atoll and Baker, Howland, and Jarvis Islands are
administered by the Fish and Wildlife Service of the Department of
the Interior as wildlife refuges. Johnston Atoll is administered
jointly by the Defense Nuclear Agency and the Fish and Wildlife
Service. Kingman Reef is administered by the Navy.\12 Wake Island is
being used by the Army Space and Missile Defense Command. Since
January 1997, the Department of the Interior's Office of Insular
Affairs has been responsible for the civil administration of Navassa
(the Coast Guard having ceased its use and administration of Navassa
Island in 1996.) Palmyra Atoll is privately owned, but is also
administered by the Office of Insular Affairs of the Department of
the Interior.
--------------------
\7 Convention in Respect to the Samoan Group of Islands, Dec. 2,
1899, 31 Stat. 1878 (1900); Act of February 20, 1929, ch. 281, 45
Stat. 1253 (1929), 48 U.S.C. � 1661.
\8 See GAO/HRD-91-18, June 20, 1991, for more detail concerning each
of these areas.
\9 Memorandum of the President, Nov. 30, 1992, 57 Fed. Reg. 57,093
(1992).
\10 An American national is either a citizen or someone who "owes
permanent allegiance to the United States." 8 U.S.C. � 1101(a)(21),
(22). Citizenship is derived either from the Fourteenth Amendment to
the Constitution ("All persons born or naturalized in the United
States, and subject to the jurisdiction thereof, are citizens of the
United States . . . .") or from a specific statute that confers
citizenship on the inhabitants of an area that, although not a state,
is under the sovereignty of the United States. Such legislation has
been enacted for Puerto Rico (8 U.S.C. � 1402); the Virgin Islands
(8 U.S.C. � 1406); Guam (8 U.S.C. � 1407); and the CNMI (sec. 303
of the Covenant, as approved by the Congress). (Under section 302 of
the Covenant, authority exists for certain CNMI residents to have
elected to become nationals but not citizens of the United States.)
No such legislation conferring citizenship has been enacted for
American Samoa. The Samoans, therefore, are not citizens of the
United States but, having been born in an area under sovereignty of
the United States, are non-citizen nationals owing permanent
allegiance to the United States. As such, they are not entitled to
benefits for which only citizens qualify. On the other hand, they
are not aliens and consequently cannot be excluded or deported.
\11 48 U.S.C. �� 1411-19.
\12 Kingman Reef has been claimed by the Fullard-Leo family. See
appendix II for further discussion.
OBSERVATIONS ON THE
APPLICABILITY OF THE U.S.
CONSTITUTION TO SMALLER
INSULAR AREAS
---------------------------------------------------------- Letter :2.1
Of the nine U.S. insular areas not addressed in our earlier report,
eight are unincorporated and unorganized territories of the United
States\13 to which constitutional rights have not been extended by
law; therefore, in general, only "fundamental" personal rights under
the Constitution apply.\14 Most of these islands were claimed under
the Guano Islands Act.\15
The question of what constitutional provisions apply to Palmyra Atoll
is not settled, but it seems likely that the courts would conclude
that the Constitution continues to apply in its entirety.\16 The
Constitution was extended in 1900 by statute to the Territory of
Hawaii.\17 At the time, Palmyra was part of that territory. However,
Palmyra was specifically excluded from the area subsequently
designated by law as the State of Hawaii. The provision of law
extending the entire Constitution to Palmyra when it was part of the
territory of Hawaii has never been amended or repealed and it is not
clear that doing so could change the current status of Palmyra. The
Supreme Court has suggested, although without squarely deciding the
question, that once the Constitution has been extended to an area,
its coverage is irrevocable.\18
The status of Navassa recently has come under the scrutiny of a
number of federal agencies, all of which agree that it has been and
remains an unincorporated and unorganized territory of the United
States. In August 1996, the Coast Guard, which had been
administering Navassa, dismantled its light and removed its signs
indicating the area was restricted. Subsequently, an American
salvager filed a claim to the island with the Department of State
under the Guano Islands Act. The claim was rejected.\19 In January
1997, the Secretary of the Interior delegated to the Office of
Insular Affairs responsibilities for the civil administration of
Navassa.\20
--------------------
\13 The eight insular areas are Navassa Island, Johnston Atoll, Baker
Island, Howland Island, Jarvis Island, Kingman Reef, Midway Atoll,
and Wake Island. Legislation introduced in the 104th Congress would
have included Baker Island, Jarvis Island, Johnston Atoll, Kingman
Reef, Howland Island, the Midway Islands, and Palmyra Atoll as part
of the state of Hawaii. H.R. 602, 104th Cong. (1995). Another
bill would have included Baker, Jarvis, and Howland Islands as part
of American Samoa. H.R. 3721, 104th Cong. (1996). No formal
action was taken on either bill, following their referral to
committee.
\14 See appendix I for a discussion of fundamental rights.
\15 The act provides that an island on which guano is discovered by a
U.S. citizen and which is not claimed by another government may be
considered, at the discretion of the President, as "appertaining to
the United States." 48 U.S.C. � 1411.
\16 See appendix II for more detail.
\17 Act of April 30, 1900, ch. 339, � 5, 31 Stat. 141-42 (1900).
\18 Downes v. Bidwell, 182 U.S. 244, 261 (1901), commenting on an
earlier Supreme Court decision, Loughborough v. Blake, 18 U.S. (5
Wheat.) 317 (1820); Rasmussen v. United States, 197 U.S. 516,
529-530, 536 (1905)(concurring opinions of Justices Harlan and
Brown).
\19 Under the Guano Islands Act, the discoverer of a guano island has
to give notice of discovery, occupation, and possession, and provide
"satisfactory evidence" that the island was not "in the possession or
occupation of any other government or the citizens of any other
government" before the claim can be perfected. 48 U.S.C. � 1412.
See appendix II for more detail.
\20 Secretary's Order No. 3205, Department of the Interior, January
16, 1997.
AGENCY COMMENTS
------------------------------------------------------------ Letter :3
The Departments of Interior, Justice, and State, as well as the
United States Coast Guard, and the offices of the representatives
from Puerto Rico, Guam, and the Commonwealth of the Northern Mariana
Islands provided comments on our draft report. Each of these
agencies and offices generally agreed with the information and issues
discussed in our draft report and offered technical comments, which
we incorporated in the report as appropriate. (Written comments from
the Coast Guard, the Department of the Interior, the Resident
Commissioner of Puerto Rico, and the Resident Representative of the
Commonwealth of the Northern Mariana Islands are reproduced in
appendices III-VI.) The office of the representative from American
Samoa reviewed the draft and had no comment. The office of the
representative from the Virgin Islands did not provide comments.
---------------------------------------------------------- Letter :3.1
We are providing copies of this report to the Secretaries of State,
Transportation, and the Interior, the Attorney General, and the
offices of the representatives from the five larger insular areas.
If you or your staff have any questions about this report, please
call me at (202) 512-8203. Other major contributors to this report
are listed in appendix VII.
Sincerely yours,
Barry R. Bedrick
Associate General Counsel
FIVE INSULAR AREAS - AN UPDATE
=========================================================== Appendix I
EFFORTS TO ENHANCE SELF-GOVERNMENT
AND ECONOMIC DEVELOPMENT
Since our 1991 report, efforts of the five larger insular
areas�Puerto Rico, the Commonwealth of the Northern Mariana Islands,
Guam, the Virgin Islands, and American Samoa�to pursue greater
self-government and economic development have continued. See maps of
these areas in figures I.1 through I.5.
Figure I.1: Puerto Rico
(See figure in printed
edition.)
Puerto Rico: A referendum was held, in November 1993, in which the
commonwealth option�maintaining the current political status of
Puerto Rico�did not receive a majority of votes cast but prevailed by
a slim margin over the statehood option.\1 In 1995, hearings were
held on the results of the 1993 referendum, on the basis of which
Representative Don Young, Chairman of the Committee on Resources,
introduced H.R. 3024, 104th Congress, the "United States-Puerto Rico
Political Status Act." The bill was reported to the House in July
1996 by the Committee on Resources, but was not voted on in the 104th
Congress. In February 1997, Representative Young introduced H.R.
856, 105th Congress, a bill that is substantially similar to H.R.
3024. That bill was reported to the House by the Committee on
Resources on June 12, 1997.\2 As of October 10, 1997, no further
action has been taken.
The pending bill would establish a three-stage process for enhancing
self-government in Puerto Rico, should that be the choice of the
Puerto Rican people. In the first stage, a referendum would be held
in Puerto Rico no later than December 31, 1998. The ballot must
provide three options�commonwealth, separate sovereignty, or
statehood�as each is defined in the bill. In the second (transition)
stage, if the referendum choice is for either statehood or separate
sovereignty, the bill, as reported, would require the President to
develop and submit to the Congress legislation for a transition plan
of not more than 10 years duration. If enacted by the Congress, the
transition plan would be submitted to the Puerto Rican electorate for
approval in another referendum. Assuming the plan was approved, the
final stage would begin with the President's submission to the
Congress of proposed legislation to implement the form of
self-government consistent with Puerto Rico's choice, including a
proposed date for implementation. If this were enacted by the
Congress, it would be presented to Puerto Rican voters for approval
by referendum, and the results certified to the President.
With regard to economic development, the North American Free Trade
Agreement (NAFTA),\3 which came into effect in 1994, specifically
applies to Puerto Rico. NAFTA defines the term "territory" with
respect to the United States to encompass U.S. customs territory,
which includes the 50 states, the District of Columbia, and Puerto
Rico, as well as foreign trade zones located in the United States and
Puerto Rico. NAFTA also covers areas beyond U.S. territorial seas
within which the United States may exercise rights over the seabed
and subsoil and their natural resources.
Figure I.2: Commonwealth of
the Northern Mariana Islands
(See figure in printed
edition.)
Northern Mariana Islands: The CNMI continues to be represented in
the District of Columbia by a Resident Representative who serves as a
liaison with the federal government. However, the CNMI does not have
a representative in the Congress. In September 1996, a bill to grant
the CNMI a nonvoting delegate to the U.S. Congress was favorably
reported by the Committee on Resources, but no further action was
taken during the 104th Congress.\4
In another development, in August 1997, the CNMI government filed
suit against the United States in federal district court. The CNMI
is suing to determine who holds title to the submerged lands within a
12 mile radius surrounding all the islands in the Commonwealth.\5
Guam: Proposed legislation to grant commonwealth status to Guam,
first introduced in the 100th Congress by former delegate Ben Blaz in
1988,\6 was introduced in each subsequent Congress, but no formal
action, beyond referral to committee, was taken on any of the
bills.\7 Delegate Underwood again has introduced in the 105th
Congress the bill to grant Guam commonwealth status.\8 Upon approval
by the Congress, the act would be submitted to the registered voters
of Guam for ratification. The United States would agree that no
provision of the act would be modified, nor any subsequently passed
federal law, rule, or regulation made applicable to Guam, except with
the mutual consent of Guam and the United States.
Figure I.3: Island of Guam
(See figure in printed
edition.)
The proposed legislation sets forth requirements for a constitution
to be drafted and adopted by Guam, including a provision permitting
the Chamorro people -- the indigenous people of Guam -- to exercise
the right of self-determination. The bill would permit the President
to delegate to the Governor of Guam the total or partial performance
of functions currently handled by federal agencies. The bill would
require the United States to consult with Guam on specific foreign
relations and defense matters affecting Guam. In addition, the
United States would assist Guam in becoming a member of or
participate in regional and international organizations, and would
permit Guam to enter into reciprocal trade and tax agreements with
other countries. Under the bill, Guam would remain outside the
customs territory of the United States and would continue to have
duty-free access to U.S. markets. Also, the bill would grant Guam,
subject to coordination with federal agencies, control over
immigration and, generally, would authorize it to enact and enforce
all laws regulating or affecting local employment. In addition, the
bill would create a commission to study and propose modification to
existing federal statutes and regulations applicable to Guam.
Virgin Islands: A referendum on the political status of the Virgin
Islands was held in October 1993.\9 Voters were asked to choose among
the following options: complete integration with the United States,
continued or enhanced territorial status, or removal of U.S.
sovereignty. Of those who voted, 80 percent selected continued or
enhanced territorial status. However, only 27.5 percent of the
electorate voted.
Legislation pending in the 105th Congress would establish a
commission to report and make recommendations to the President and
the Congress on the policies and actions necessary to provide a
self-sustaining economy for the Virgin Islands through 2020.\10
Figure I.4: U.S. Virgin
Islands
(See figure in printed
edition.)
American Samoa: American Samoa's main focus in relation to the
United States currently is economic development. In 1992, we
reported on deficiencies in American Samoa's fiscal management and
budget capabilities.\11 In response, the American Samoan government
has developed a plan which it is implementing in cooperation with
federal agencies and others to improve its fiscal management and
budget capabilities and to attract investment. In addition,
legislation pending in the 105th Congress would establish a
commission to report and make recommendations to the President and
the Congress on the policies and actions necessary to sustain
American Samoa's economy through 2020. As part of its report, the
commission would include an overview of American Samoa's history and
its relationship to the United States, with emphasis on actions
affecting future economic development.\12
In another development, an assessment team from the Department of
Justice visited American Samoa in 1994. In a December 1994 report,
the team concluded that the absence of a federal court in American
Samoa contributed to difficulties in curbing white collar crime.\13
In October 1996 and again in 1997, the Department of Justice
submitted to the Congress a draft legislative proposal to establish a
federal district court of limited jurisdiction in American Samoa.
Figure I.5: American Samoa
(See figure in printed
edition.)
APPLICABILITY OF CONSTITUTIONAL
PROVISIONS TO U.S. INSULAR AREAS
--------------------
\1 The commonwealth option received 48 percent of the votes, the
statehood option 46 percent, and the independence option 4 percent.
Rafael Matos, Commonwealth a Winner with 48.4% of Vote, San Juan
Star, November 15, 1993, at 3. However, results of the referendum
were difficult to interpret due to the manner in which the three
options were presented to the voters. H.R. Rep. No. 104-713, Pt.
1, at 16 (1996).
\2 H.R. Rep. No. 105-131, Pt. 1, at 45. The bill was placed on
the Union Calendar for consideration by the Committee of the Whole
(see infra note 32).
\3 32 Int'l Legal Materials 296-456 (1993).
\4 H.R. 4067, 104th Cong. (1996), introduced by Rep. Gallegly;
H.R. Rep. No. 104-856 (1996).
\5 Commonwealth of the Northern Mariana Islands v. United States,
No. CV 97-0036, (D.N.M.I. Aug. 21, 1997).
\6 H.R. 4100, 100th Cong. (1988).
\7 H.R. 98, 101st Cong. (1989); H.R. 98, 102d Cong. (1991); H.R.
1521, 103d Cong. (1993); H.R. 1056, 104th Cong. (1995); to be
known if enacted as the Guam Commonwealth Act.
\8 H.R. 100, 105th Cong. (1997).
\9 The referendum was conducted under the authority of the Virgin
Islands Organic Act. 48 U.S.C. � 1593(b).
\10 S. 210, 105th Cong. (1997), which passed the Senate on June 12,
1997. Nearly identical language passed the House in 1996. H.R.
1332, 104th Cong. (1996).
\11 American Samoa: Inadequate Management and Oversight Contribute
to Financial Problems (GAO/NSIAD-92-64, April 17, 1992).
\12 S. 210, 105th Cong. (1997) passed the House on June 12, 1997.
Bills were also introduced in previous Congresses to create a study
commission to review American Samoa's political relationship with the
United States. H.R. 3351, 102d Cong. (1991); H.R. 187, 103d Cong.
(1993); H.R. 3721 and H.R. 1332 (as it passed the House), 104th
Cong. (1996).
\13 The report, noting that American Samoa's court system is not part
of the federal judicial structure, cited difficulties encountered in
issuing and enforcing federal subpoenas. The Dep't of Justice Report
on American Samoa White-Collar Crime Assessment Which Highlights Some
Serious Problems and Suggests Possible Resolutions: Hearing Before
the Subcomm. on Native American and Insular Affairs of the House
Comm. on Resources, 104th Cong. (1995).
"FUNDAMENTAL" CONSTITUTIONAL
RIGHTS APPLY TO ALL
TERRITORIES
------------------------------------------------------- Appendix I:0.1
The Constitution does not apply in its entirety to territories solely
by virtue of the fact that those territories have come under the
possession and control of the United States.\14
Whether rights under the Constitution apply to a territory and, if
so, to what extent depends essentially on either of two factors,
according to a series of Supreme Court decisions called the Insular
Cases.\15 The first is whether the right in question is considered to
be "fundamental" or not; the second is whether the Congress has taken
legislative action to extend the Constitution to the territory.
Most of the Insular Cases, which comprise the first extensive
consideration of the application of constitutional and statutory
rights within United States territories, date from 1901 to 1904,
following a period of territorial expansion by the United States. In
these cases, the Supreme Court developed the idea that, without any
action by the Congress, constitutional rights that are considered to
be "fundamental" are available in all areas under the jurisdiction of
the United States,\16 but that other rights apply only when extended
to such areas by law. The Court pointed out that even though some of
these fundamental rights may not be expressly stated in the
Constitution, it would be wholly inconsistent with the principles
that underlie our government not to preserve them in the territories.
Thus, in one of the Insular Cases, Downes v. Bidwell, the Court said
that the Congress, in creating governments for the territories, could
not do so in such a way as to abridge fundamental rights.\17
The question whether particular rights are fundamental has been
answered only as specific cases come before the Supreme Court. The
Court has identified the Fifth Amendment privilege against
self-incrimination as a fundamental right.\18 On the other hand, the
Court has said that the Sixth Amendment right to trial by jury and
the Fifth Amendment right to indictment by a grand jury "are not
fundamental in their nature, but concern merely a method of procedure
. . . ."\19
Under the Insular Cases and subsequent decisions, rights other than
fundamental rights, even though they may be stated in the
Constitution, do not apply to the territories or possessions unless
the Congress makes them applicable by legislation.\20 The Congress
can by law extend the coverage of the Constitution in part or in its
entirety to a territory or possession, and has done so with respect
to some territories. In the absence of such congressional action,
however, only fundamental rights apply. The Insular Cases use the
term "incorporated" to distinguish territories where all
constitutional rights apply, because a statute has made them
applicable, from "unincorporated" territories, where fundamental
rights apply as a matter of law, but other constitutional rights are
not available.
--------------------
\14 "It is not open to us in light of the Insular Cases to endorse
the view that every constitutional provision applies wherever the
United States Government exercises its power." United States v.
Verdugo-Urquidez, 494 U.S. 259, 268-69 (1990).
\15 The Supreme Court cases that are often identified as the first
Insular Cases are: De Lima v. Bidwell, 182 U.S. 1 (1901) (Puerto
Rico not a foreign country within the meaning of the generally
applicable tariff law); Downes v. Bidwell, 182 U.S. 244 (1901)
(tariff imposed by the Congress on goods imported from Puerto Rico
into the United States did not violate the Uniformity Clause); and
Dooley v. United States, 182 U.S. 222 (1901) and Armstrong v.
United States, 182 U.S. 243 (1901) (presidentially-imposed war
tariff on goods exported from the United States to Puerto Rico ended
upon ratification of the peace treaty under which Puerto Rico became
subject to U.S. sovereignty).
Some later decisions that are also described as Insular Cases are:
Hawaii v. Manikichi, 190 U.S. 197 (1903) (Fifth Amendment
requirement for indictment by grand jury and Sixth Amendment right to
jury trial inapplicable in Hawaii); Dorr v. United States, 195 U.S.
138 (1904) (Sixth Amendment right to jury trial inapplicable in the
Philippines); Ocampo v. United States, 234 U.S. 91 (1914) (Fifth
Amendment grand jury provision not included in the guarantees of due
process and not applicable in the Philippines); Balzac v. Porto
Rico, 258 U.S. 298 (1922) (Sixth Amendment right to jury trial
inapplicable in Puerto Rico).
\16 "[E]ven in cases where there is no direct command of the
Constitution which applies, there may nevertheless be restrictions of
so fundamental a nature that they cannot be transgressed, although
not expressed in so many words in the Constitution." Downes v.
Bidwell, 182 U.S. at 290-291.
\17 "Whilst, therefore, there is no express or implied limitation on
Congress in exercising its power to create local governments for any
and all of the territories . . . there may . . . be inherent,
although unexpressed, principles which are the basis of all free
government which cannot be with impunity transcended." Id.
\18 Malloy v. Hogan, 378 U.S. 1 (1964).
\19 Dorr, 195 U.S. at 144-45.
\20 Although the Insular Cases remain authoritative, an opinion in a
later case questions the concept of fundamental rights derived from
those cases. In an opinion for himself and three of the five other
justices who concurred in the result in Reid v. Covert, 354 U.S. 1
(1957) (holding that the law that made civilian citizens accompanying
the armed forces overseas subject to court-martial was
unconstitutional to the extent it denied the defendants Fifth and
Sixth Amendment protections), Justice Black said: "[I]t is our
judgment that neither the [Insular Cases] nor their reasoning should
be given any further expansion. The concept that the Bill of Rights
and other constitutional protections against arbitrary government are
inoperative when they become inconvenient or when expediency dictates
otherwise is a very dangerous concept . . . ." Id. at 13-14.
However, the Court has subsequently relied on the Insular Cases to
support its holding that the Fourth Amendment right against
unreasonable search and seizure does not protect a nonresident alien
whose seized property is located in another country.
Verdugo-Urquidez, 494 U.S. at 268-69 (1990).
TERRITORIAL CLAUSE
------------------------------------------------------- Appendix I:0.2
Under what is commonly known as the Territorial Clause of the
Constitution, the Congress has the "power to make all needful Rules
and Regulations respecting the Territory or other Property" of the
United States.\21 Pursuant to this power, and in response to local
desire for greater political autonomy, the Congress in 1950 approved
a process for local self-government for Puerto Rico, under which its
residents could establish, subject to congressional approval, their
own constitution.\22 Separately, negotiations between the Northern
Marianas and the United States culminated in a law approving a
mutually binding agreement, the Covenant to Establish a Commonwealth
of the Northern Mariana Islands, which permitted local constitutional
self-government and went into effect on November 3, 1986.\23
A 1993 decision of the Court of Appeals for the Ninth Circuit
discussed the relationship between the United States and the CNMI in
the context of the applicability of the CNMI Covenant and the
Territorial Clause. A federal district court had enforced a subpoena
of the Inspector General of the Department of the Interior, pursuant
to statutory audit authority, for records related to the CNMI's
administration of its income tax system. On appeal, the court of
appeals agreed that the subpoena was valid, but rejected the
Inspector General's reliance on the Territorial Clause as support for
the federal audit. The court emphasized that, although the
Territorial Clause applies to the CNMI,\24 it is the provisions of
the Covenant, as approved by the Congress, that "define the
boundaries" of the relationship between the United States and the
CNMI: "The applicability of the Territorial Clause to the CNMI . .
. is not dispositive of this dispute. Even if the Territorial
Clause provides the constitutional basis for the Congress'
legislative authority in the Commonwealth, it is solely by the
Covenant that we measure the limits of Congress' legislative
power."\25
Looking to the provisions of the Covenant, the court rejected the
CNMI's argument that local affairs are immune from federal
legislation. Section 105 of the Covenant expressly recognizes the
authority of the United States to enact legislation applicable to the
Northern Mariana Islands, but it goes on to say that the United
States agrees not to override unilaterally certain specific
provisions of the Covenant that are identified as "fundamental,"
including the right of local self-government in section 103. The
court read the Covenant as meaning that the Congress may legislate
with respect to the internal affairs of the CNMI if the United States
has an identifiable federal interest that will be served by the
legislation and that outweighs the degree of intrusion into the
internal affairs of the CNMI.
In deciding the validity of the subpoena at issue in this case, the
court concluded first that there was a federal interest in monitoring
the CNMI's collection of taxes, in part because the efficacy of the
CNMI's revenue collection would have an effect on the amount of
federal assistance needed for the CNMI. The court went on to say
that, because "a substantial portion of the CNMI budget is comprised
of direct and indirect federal financial assistance," the audit
requirement did not impermissibly intrude on the internal affairs of
the CNMI.\26
In the most recent case to discuss the Territorial Clause with regard
to Puerto Rico,\27 the Court of Appeals for the Eleventh Circuit held
that the Congress' decision to permit self-governance in Puerto Rico
did not remove Puerto Rico from application of the Territorial
Clause. The court concluded that there has been no fundamental
alteration in Puerto Rico's relationship to the United States:
"Puerto Rico is still constitutionally a territory, and not a
separate sovereign."\28
--------------------
\21 U.S. Const. art. IV, � 3, cl. 2.
\22 The 1950 law, "adopted in the nature of a compact," authorized
Puerto Rico to draft its own constitution, subject to ratification by
Puerto Rican voters and subject to the approval of the U.S.
Congress. Pub. L. No. 81-600, 64 Stat. 319 (1950). The
constitution, ratified by Puerto Rican voters in a March 1952
referendum, was approved by the Congress in July 1952 with minor
changes. Pub. L. No. 82-447, 66 Stat. 327 (1952).
\23 Covenant to Establish a Commonwealth of the Northern Mariana
Islands in Political Union with the United States of America,
approved by Pub. L. No. 94-241, 90 Stat. 263 (1976), 48 U.S.C. �
1801 note.
\24 See also Micronesian Telecomms. Corp. v. NLRB, 820 F.2d 1097,
1100, n.2 (9th Cir. 1987); Wabol v. Villacrusis, 958 F.2d 1450,
1459 and n. 17 (9th Cir. 1990); cert. denied, 506 U.S. 1027
(1992).
\25 United States v. De Leon Guerrero, 4 F.3d 749, 754 (9th Cir.
1993).
\26 Id. at 755.
\27 United States v. Sanchez, 992 F.2d 1143 (11th Cir. 1993). The
case concerned the application of the Double Jeopardy Clause of the
Constitution to Puerto Rico.
\28 Id. at 1151-52. Finding that Puerto Rico still derives its
powers from the U.S. Congress, the court said: "Congress may
unilaterally repeal the Puerto Rican Constitution or the Puerto Rican
Federal Relations Act and replace them with any rules or regulations
of its choice. Despite passage of the Federal Relations Act and the
Puerto Rican Constitution, Puerto Rican courts continue to derive
their authority to punish from the United States Congress . . . ."
Id. at 1153.
CONGRESSIONAL REPRESENTATION
------------------------------------------------------- Appendix I:0.3
The Constitution establishes the House of Representatives and the
Senate, comprising representatives elected by the citizens in each
state.\29 Although the insular areas cannot elect representatives or
senators, the Congress has created a form of representation for them.
Statutes permit four of the larger insular areas to elect officials
who have a role in the House of Representatives, and the fifth to
elect a representative to the United States. Puerto Rico elects a
resident commissioner to the United States Congress for a 4-year
term. Guam, the Virgin Islands, and American Samoa elect delegates
to the Congress for 2-year terms. The Covenant and the CNMI
constitution provide for the CNMI to have an elected resident
representative to the United States who, under the CNMI constitution,
currently serves for a 4-year term. Were the Congress to authorize
the CNMI representative to serve in the Congress, the CNMI
constitution provides that the representative's term will conform to
the term of office required by the authorizing statute.
From 1900 through 1970, under rules of the House of Representatives,
territorial delegates were permitted to participate in floor debate
and to be members of committees but were not allowed to vote either
in committee or on the floor. In 1971, House Rule XII was changed to
allow the resident commissioner from Puerto Rico the right to vote in
standing committees and otherwise to possess in those committees the
same powers and privileges as members of the Congress.\30
In 1975, Rule X of the House Rules was amended to authorize the
speaker to appoint the resident commissioner and delegates to serve
on conference committees considering legislation reported from a
committee on which they served. In 1993, the rule was further
amended to permit the speaker to appoint the resident commissioner
and delegates to serve on any conference committee.\31 This rule
remains in effect.
In 1993, the House again amended House Rules to give the resident
commissioner and delegates, representing the insular areas (and the
District of Columbia), the additional authority to vote in the
Committee of the Whole as long as such votes were not decisive on a
question.\32 However, this authority lasted only until the next
Congress.\33 In January 1995, the House eliminated the authority for
the resident commissioner and delegates to vote in the Committee of
the Whole. They continue to be authorized to serve in the same
manner as other members on standing committees. Starting in January
1995, the resident commissioner and delegates are counted for
purposes of calculating the ratio of Republican to Democrat members
within a committee.
None of the smaller insular areas has a native population or local
government. None is represented in any way in the Congress.
--------------------
\29 U.S. Const. art. I, �� 2-3.
\30 H. Res. 5, 92d Cong. (1971). The rule gave the same status to
the delegate from the District of Columbia. These privileges were
extended to the delegates from Guam, the Virgin Islands, and American
Samoa, when they were authorized representation in the Congress.
Pub. L. No. 92-271, � 5, 86 Stat. 118, 119 (1972); Pub. L. No.
95-556, � 5, 92 Stat. 2078 (1978).
\31 H. Res. 5, 103d Cong. � 7(b) (1993).
\32 H.R. Res. 5, 103d Cong. � 9 (1993). "Committee of the Whole"
is a procedure used by the House of Representatives during floor
debate. When this procedure is invoked, the House uses committee
markup procedures, rather than the more formal procedures applicable
to floor proceedings. Once the Committee of the Whole reports a bill
to the House of Representatives, the House votes on the bill in the
usual fashion.
\33 Several members of the Congress challenged the constitutionality
of permitting the resident commissioner and delegates to vote in the
Committee of the Whole. They argued that the provision diluted their
votes and violated Article I of the Constitution, providing that the
House "shall be composed of Members chosen every Second Year by the
People of the Several States." The Court of Appeals for the First
Circuit found that the additional authority provided by the rule
change was largely symbolic because the House had, at the same time,
also amended Rule XXIII, c. 2(d), to require the House to revote
without including the insular representatives on any vote in the
Committee of the Whole in which the votes of the resident
commissioner or the delegates were decisive. The court held that the
rule was constitutional, and that the power it conferred was not
significantly greater than that already enjoyed by the resident
commissioner and delegates in serving and voting on the standing
committees. Michel v. Anderson, 14 F.3d 623 (D.C. Cir. 1994).
COMMERCE CLAUSE
------------------------------------------------------- Appendix I:0.4
Interstate commerce and foreign trade are regulated by the Congress
through the Commerce Clause. \34 The Clause is an affirmative grant
of power to the Congress "to regulate Commerce with foreign Nations,
and among the several States . . . ," but also has a "dormant" or
"negative" aspect. \35 This dormant side "limits the power of the
States to erect barriers against interstate trade."\36 Two cases have
recently considered whether the dormant aspect of the Commerce Clause
applies to the Virgin Islands and Puerto Rico, respectively.\37
In 1993, the Court of Appeals for the Third Circuit, following the
reasoning of its earlier decision,\38 held that the Commerce Clause,
through the Territorial Clause, limits the authority of the Virgin
Islands to regulate commerce. Under federal law, domestic
corporations can set up "foreign sales corporations" (FSCs) in U.S.
possessions. The income of an FSC that meets the requirements of the
Internal Revenue Code is exempt from federal tax. FSCs incorporated
in the Virgin Islands challenged local statutes imposing taxes and
fees on their operations.
The FSCs argued that the Virgin Islands tax constituted a barrier to
interstate trade and therefore offended against the dormant aspect of
the Commerce Clause. The court agreed, relying on its earlier
decision that "Congress has comprehensive powers to regulate
territories under the Territorial Clause . . . and that Congress'
Commerce Clause powers 'are implicit' in that clause."\39 The court
reasoned that, if the Virgin Islands were not subject to the dormant
aspect of the Commerce Clause and could therefore pass laws that
would interfere with interstate trade, then "an unincorporated
territory would have more power over commerce than the states
possess."\40 Because it found that Commerce Clause principles are
implicit in the Territorial Clause, the court found it unnecessary to
decide whether the Commerce Clause applies directly to the Virgin
Islands.
In a 1992 case, the Court of Appeals for the First Circuit went a
step further with respect to Puerto Rico, concluding that, apart from
the Territorial Clause, "Puerto Rico is subject to the dormant
Commerce Clause doctrine in the same fashion as the states."\41 The
plaintiff, Trailer Marine, transported goods to Puerto Rico on
trailers that could be rolled off a ship and then attached to local
tractors for delivery. It contended that the imposition by Puerto
Rico of a motor vehicle fee on its trailers unduly burdened or
discriminated against interstate commerce.\42 A 1980 district court
decision had applied the Commerce Clause to Puerto Rico through the
Territorial Clause "as an implied corollary of congressional powers
thereunder."\43 After examining Puerto Rico's constitutional history,
"a skein of statutes and precedents as tangled as any in our
history,"\44 the court of appeals concluded that, "[w]hatever the
ultimate source of its authority or its exact constitutional status,
Puerto Rico today certainly has sufficient actual autonomy to justify
treating it as a public entity distinct from Congress and subject to
the dormant Commerce Clause doctrine."\45 The court held that the fee
imposed by Puerto Rico unduly burdened interstate commerce.
--------------------
\34 U.S. Const. art. I, � 8, cl. 3.
\35 See Cooley v. Board of Wardens, 53 U.S. (12 How.) 299, 318
(1851).
\36 Lewis v. BT Inv. Managers, Inc., 447 U.S. 27, 35 (1980).
\37 As we said in our earlier report, the Court of Appeals for the
Ninth Circuit held in 1985 that the Commerce Clause does not apply to
Guam because Guam is not a state. Sakamoto v. Duty Free Shoppers,
Ltd., 764 F.2d 1285 (9th Cir. 1985). But see Duty Free Shoppers,
Ltd. v. Tax Commissioner, 464 F. Supp. 730 (D. Guam 1979), which
found that the Commerce Clause did apply to Guam, apparently through
the Territorial Clause. There have been no cases on the
applicability of the Commerce Clause to American Samoa or the CNMI.
\38 JDS Realty Corp. v. Government of the Virgin Islands, 824 F.2d
256, 260 (3d Cir. 1987), vacated and remanded to consider mootness,
484 U.S. 999 (1988), vacated, 852 F.2d 66 (3d Cir. 1988) (noted in
GAO/HRD-91-18, June 20, 1991, page 21). In JDS Realty, the Court of
Appeals had held that Commerce Clause powers are implicit in the
Territorial Clause, but that decision was vacated for other reasons.
\39 JDS Realty, 824 F.2d at 260.
\40 Polychrome, 5 F.3d at 1534-35, quoting JDS Realty, 824 F.2d at
259.
\41 Trailer Marine Transp. Corp. v. Rivera-Vazquez, 977 F.2d 1, 7
(1st Cir. 1992); United Egg Producers v. Dep't of Agric., 77 F.3d
567, 569 (1st Cir. 1996); Starlight Sugar, Inc. v. Soto, 114 F.3d
330, 331 (1st Cir. 1997).
\42 To protect individuals injured in motor vehicle accidents, Puerto
Rico had instituted a no-fault compensation plan funded by vehicle
fees. Puerto Rican legislation aimed directly at transitory trailers
required either an annual fee or a fee for each visit of such a
vehicle if remaining in Puerto Rico less than 30 days.
\43 Sea-Land Serv. Inc. v. Municipality of San Juan, 505 F. Supp.
533, 545 (D.P.R. 1980).
\44 Trailer Marine, 977 F.2d at 6.
\45 Id. at 8.
ELECTIONS
------------------------------------------------------- Appendix I:0.5
American citizens who reside in the insular areas may not vote for
President. The Constitution provides for the election of the
President by electors appointed by the states.\46 Guam attempted
unsuccessfully in 1984 to have this provision interpreted to permit
its citizens to vote in U.S. presidential elections.\47
Residents of Puerto Rico recently litigated the issue, with the same
outcome. In 1994, American citizens in Puerto Rico filed suit
contending that "Puerto Rico['s] present political status has evolved
in such a way from a Territory in 1898 to that of a 'de facto' state"
that it should be considered a state entitled to electoral votes.\48
The federal district court, noting the constitutional requirement for
state appointment of electors who then vote for the President, held
that only states (and, through the Twenty-Third Amendment, the
District of Columbia)\49 may cast electoral votes in presidential
elections.\50 The plaintiffs' argument that Puerto Rico has evolved
into a "de facto" state was, the court said, a "political question"
not suitable for judicial resolution.\51
Although residents of the insular areas cannot vote in presidential
elections, four of the five larger insular areas participate in the
nominations process, which is governed by party rules and local law
rather than by the Constitution. Puerto Rico holds primary elections
to nominate presidential candidates, and sends delegates to the
Republican and Democratic national conventions. Guam sends delegates
to the conventions and also places the names of the presidential and
vice presidential candidates on the general ballot in November to
find out who would have been popularly elected in Guam.\52 American
Samoa and the Virgin Islands send delegates to the national
conventions. The political parties in the CNMI are not affiliated
with the U.S. Republican or Democratic parties and do not
participate in the presidential nomination process.
With respect to local elections, an appeal pending in Puerto Rico's
supreme court asks that court to decide whether Puerto Rico's
electoral law can restrict voting in local elections to U.S.
citizens. The lawsuit had been filed in an attempt to prevent voting
in Puerto Rican elections by an individual who formally renounced his
U.S. citizenship and declared himself a citizen of Puerto Rico. A
lower court, finding that the individual is a citizen of Puerto Rico,
ruled that restricting local voting to U.S. citizens is contrary to
Puerto Rico's constitution.\53
The claim of Puerto Rican citizenship apparently is based, in part,
on the Foraker Act, which provides that the inhabitants of Puerto
Rico are "citizens of Puerto Rico and entitled to the protection of
the United States."\54 The State Department takes the position that
the citizenship of Puerto Rico provision of the Foraker Act has no
legal effect today, having been superseded by later law.\55
--------------------
\46 U.S. Const. art. II, � 1, cl. 3
\47 The Attorney General of Guam argued that American citizens
residing in Guam had a right to participate in presidential
elections. The Court of Appeals for the Ninth Circuit disagreed,
stating that the Constitution "does not grant to American citizens
the right to elect the President. . . . Since Guam is not a
state, it can have no electors, and plaintiffs cannot exercise
individual votes in a presidential election. There is no
constitutional violation." Attorney Gen. of Guam v. United States,
738 F.2d 1017, 1019 (9th Cir. 1984), cert. denied, 469 U.S. 1209
(1985).
\48 de la Rosa v. United States, 842 F. Supp. 607, 608-09 (D.P.R.
1994), aff'd sub. nom. Igartua De La Rosa v. United States, 32
F.3d 8 (1st Cir. 1994), cert. denied, 514 U.S. 1049 (1995).
\49 Amendment XXIII of the Constitution provides that the District of
Columbia shall appoint electors who "shall be considered, for the
purposes of the election of President and Vice President, to be
electors appointed by a State . . . ."
\50 de la Rosa, 842 F. Supp. at 608-09.
\51 Id.
\52 Guam Code, Title III, ch. 7, � 7107. The provision placing the
names of the nominees for president and vice president on the ballot
became effective with the 1980 presidential elections.
\53 Court Ruling Paves Way For Mari Bras to Vote, The San Juan Star,
October 22, 1996, at 3.
\54 Act of April 12, 1900, � 7, ch. 191, 31 Stat. 77, 79 (1900).
This provision applies to all inhabitants of Puerto Rico who were
Spanish subjects on April 11, 1899, with the exception of those
individuals born in Spain who elected to retain Spanish allegiance.
\55 There has been a succession of laws. Under section 5 of Puerto
Rico's organic act, known as the Jones Act, 39 Stat. 951, 953
(1917), all citizens of Puerto Rico, as defined under the Foraker
Act, and all native Puerto Ricans temporarily absent on April 11,
1899, are deemed to be U.S. citizens, but any individual could elect
to retain the political status prior to the act by filing, within 6
months, a declaration in district court. In 1934, all persons born
in Puerto Rico, on or after April 11, 1899, "and not citizens,
subjects, or nationals of any foreign power," were deemed U.S.
citizens. Act of June 27, 1934, 48 Stat. 1245. The Nationality Act
of 1940, 54 Stat. 1139, extends U.S. citizenship to all persons not
already U.S. citizens under another law, who are subject to U.S.
jurisdiction, born in Puerto Rico on or after April 11, 1899, and
residing in territory of the United States on January 13, 1941.
Section 302 of the Immigration and Nationality Act of 1952,
classified to 8 U.S.C. � 1402, generally restates the 1940 act and
adds that persons born in Puerto Rico on or after January 13, 1941,
are U.S. citizens by birth.
FOURTH AND FIFTH AMENDMENTS
------------------------------------------------------- Appendix I:0.6
The Fourth Amendment protects against unreasonable searches and
seizures. No search or arrest warrant may be issued except with
probable cause and the warrant must specifically describe the place
to be searched and persons or things to be seized.\56
The rights provided by the Fourth Amendment are generally considered
to be "fundamental,"\57 which means that they apply of their own
force to all individuals subject to the sovereignty of the United
States. No statute is necessary to extend them to U.S. territories
and possessions. However, in addition, legislation or local
constitutional provisions of each of the larger insular areas either
explicitly apply the Fourth Amendment, or offer equivalent
protections under local law, to insular area residents. The CNMI
Covenant specifically states that the Fourth Amendment is applicable
to the Northern Marianas.\58 The Fourth Amendment has been held to
apply to Puerto Rico; Puerto Rico's Constitution also provides these
same protections.\59 The Fourth Amendment is extended to the Virgin
Islands and Guam through their Organic Acts.\60
Protections against unreasonable search and seizure apply to American
Samoa through its Revised Constitution.\61
The Fifth Amendment includes the right to indictment by a grand jury;
protection against double jeopardy; the right against
self-incrimination; the right not to be deprived of life, liberty, or
property without due process of law; and the right to just
compensation for public takings of private property.\62 The Organic
Act of the Virgin Islands explicitly extends the Fifth Amendment to
the Virgin Islands, but provides that the right to a grand jury does
not extend to cases prosecuted under Virgin Islands' law unless
required by that law.\63 Although an amendment to Guam's Organic Act
specifically extends Fifth Amendment rights to Guam,\64 the Court of
Appeals for the Ninth Circuit found that this did not deprive the
legislature of Guam of the power to determine whether offenses should
be prosecuted by grand jury indictment or by the less formal process
known as an information.\65 The CNMI Covenant, as approved by the
Congress, provides that the Fifth Amendment is applicable to the
CNMI, implicitly including indictment by grand jury, but states that
grand jury indictments are not required for cases based on local law
except where required by local law.\66 American Samoa has no specific
provision in its Revised Constitution or local law regarding a right
to indictment by grand jury, and federal law has not extended this
right.\67 Puerto Rican law does not provide a right to grand jury
indictment.\68
The Fifth Amendment protection against double jeopardy\69 has been
discussed in recent cases pertaining to Puerto Rico and the Virgin
Islands. In United States v. Sanchez,\70 the Court of Appeals for
the Eleventh Circuit found that the Double Jeopardy Clause would
prevent separate prosecutions under Puerto Rican law and federal law
for the same offense. The defendants in Sanchez, after having been
acquitted in a Puerto Rican court of multiple criminal charges, were
convicted in federal court in Florida on charges arising out of the
same circumstances. On appeal, they claimed that the Florida
prosecution violated the Double Jeopardy Clause. The United States
contended that the first prosecution was undertaken not by the
government of the United States, but under the authority of a
separate sovereign, the Commonwealth of Puerto Rico, and therefore
that the Double Jeopardy Clause did not apply.
The Court of Appeals said that the "crucial question" in determining
whether two entities are separate sovereigns is whether the two
derive their authority to punish from distinct sources of power.\71
It concluded that the Congress' decision to permit self-governance in
Puerto Rico did not make Puerto Rico a separate sovereign: "Puerto
Rico is still constitutionally a territory, and not a separate
sovereign. As a territory, Puerto Rico remains outside an exception
to the Double Jeopardy Clause which is based upon dual
sovereignty."\72 The court concluded that, since Puerto Rico
continues to derive its judicial authority from the federal
government, the Double Jeopardy Clause precludes prosecutions for the
same offense in both a state and Puerto Rico.\73 However, the Court
of Appeals for the First Circuit which, as the appellate court for
the federal district court in Puerto Rico, hears most federal cases
involving Puerto Rico considers Puerto Rico to have a degree of
autonomy sufficient to make it a separate sovereign for the purpose
of permitting successive criminal prosecutions by the United States
and Puerto Rico.\74
A 1995 district court decision pertaining to the Virgin Islands
reached a similar result concerning double jeopardy and dual
sovereignty.\75 The court concluded that the Double Jeopardy Clause
of the Fifth Amendment, because it is a fundamental right that
automatically extends to the residents of any U.S. territory,
applies to the Virgin Islands. With respect to dual sovereignty, the
court noted that, "as an unincorporated territory of the United
States, the Virgin Islands has no inherent or independent sovereign
power."\76
Accordingly, a defendant could not be tried for the same offense in
federal court and in a Virgin Islands court.
--------------------
\56 U.S. Const. amend. IV.
\57 Precisely which constitutional rights are fundamental has been
left to a case-by-case determination. The Supreme Court described
fundamental rights as "inherent, although unexpressed principles
which are the basis of all free government . . . ." Dorr v.
United States, 195 U.S. 138, 147 (1904). These fundamental rights
appear to correspond roughly to the "natural rights" earlier
described by Justice White, in a concurring opinion in Downes v.
Bidwell, 182 U.S. 244, 282-83 (1901). Justice White included among
"natural rights" the right to one's own religious opinion as well as
"the right to personal liberty and individual property; to freedom of
speech and of the press; to free access to courts of justice; to due
process of law and to an equal protection of the laws; to immunities
from unreasonable searches and seizures, as well as cruel and unusual
punishments . . . ." Id. at 282.
\58 Covenant to Establish a Commonwealth of the Northern Mariana
Islands in Political Union with the United States of America, �
501(a), 48 U.S.C. � 1801 note.
\59 Torres v. Puerto Rico, 442 U.S. 465, 471 (1979); Buenrostro v.
Collazo, 973 F.2d 39 (1st Cir. 1992); Constitution of the
Commonwealth of Puerto Rico, art. II, � 10.
\60 48 U.S.C. �� 1421b(c),(u) and 1561. See also United States v.
Douglas, 854 F.Supp. 383, 385 n.1 (D.V.I. 1994) ("The Fourth
Amendment is fully applicable to the Virgin Islands.")
\61 Revised Constitution of American Samoa, art. I, � 5.
\62 U.S. Const. amend. V.
\63 48 U.S.C. � 1561. Indictment by grand jury or information does
apply to crimes prosecuted under federal law.
\64 48 U.S.C. � 1421(u).
\65 48 U.S.C. � 1421b(e), (f), (u); Guam v. Inglett, 417 F.2d 123,
124 (9th Cir. 1969).
\66 Covenant to Establish a Commonwealth of the Northern Mariana
Islands in Political Union with the United States of America, �
501(a), 48 U.S.C. � 1801 note.
\67 Revised Constitution of American Samoa, art. I, � 6 (Fifth
Amendment rights); Am. Samoa Code Ann. � 46.0502 (1988) (rights of
defendants).
\68 Torres v. Puerto Rico, 442 U.S. 465, 469 (1979); see also
Balzac v. Porto Rico, 258 U.S. 298, 306 (1922). Puerto Rico does
empanel grand juries for federal crimes.
\69 The Double Jeopardy Clause states: "[N]or shall any person be
subject for the same offence to be twice put in jeopardy of life or
limb . . . ." U.S. Const. amend. V.
\70 992 F.2d 1143 (11th Cir. 1993), modified, 3 F.3d 366 (11th Cir.
1993), cert. denied, 514 U.S. 1038 (1994).
\71 Sanchez, 992 F.2d at 1149 . The court cited the Supreme Court's
discussion of the dual sovereignty doctrine: "The dual sovereignty
doctrine is founded on the common law conception of crime as an
offense against the sovereignty of the government. When a defendant
in a single act violates the 'peace and dignity' of two sovereigns by
breaking the laws of each he has committed two distinct 'offenses'.
Heath v. Alabama, 474 U.S. 82, 88 (1985). There, the Supreme Court
upheld separate prosecutions by Alabama and Georgia of a man whose
single crime was the hiring of two men to kill his pregnant wife.
\72 Sanchez, 992 F.2d at 1151. The court reasoned: "The development
of the Commonwealth of Puerto Rico has not given its judicial
tribunals a source of punitive authority which is independent of the
United States Congress and derived from an 'inherent sovereignty.' .
. . Despite passage of the Federal Relations Act and the Puerto
Rican Constitution, Puerto Rican courts continue to derive their
authority to punish from the United States Congress and prosecutions
do not fall within the dual sovereignty exception to the Double
Jeopardy Clause." Id. at 1152-53.
\73 Sanchez, 992 F.2d at 1150. However, the court found that none of
the charges in the Florida prosecution were for the same crimes that
had been prosecuted in Puerto Rico, and upheld the convictions.
\74 See United States v. Lopez Andino, 831 F.2d 1164 (1st Cir.
1987), cert. denied, 486 U.S. 1034 (1988); United States v.
Bonilla Romero, 836 F.2d 39 (1st Cir. 1987), cert. denied, 488 U.S.
817 (1988); United States v. Perez-Perez, 72 F.3d 224 (1st Cir.
1995).
\75 Government of Virgin Islands v. Schneider, 893 F. Supp. 490
(D.V.I. 1995).
\76 Id. at 494. The court noted further that "the 'single
sovereign' in the Virgin Islands is allowed only one bite of the
apple�whether acting as the United States or the Government of the
Virgin Islands . . . ." Id. at 495.
DUE PROCESS AND EQUAL
PROTECTION CLAUSES
------------------------------------------------------- Appendix I:0.7
Among the rights guaranteed by the Constitution are due process and
equal protection. Both rights apply to the five larger insular
areas. The Due Process Clause provides that no state shall "deprive
any person of life, liberty, or property, without due process of
law."\77 The Equal Protection Clause requires that people under like
circumstances be given the same protection of the law in the
enjoyment of personal rights, liberties, and property.\78
The Congress, through legislation, has explicitly extended due
process and equal protection rights to the Virgin Islands.\79 In
1976, the Supreme Court held that residents of Puerto Rico are
accorded the protections of the Due Process Clause of the Fifth
Amendment\80 or, alternatively, the Due Process and Equal Protection
Clauses of the Fourteenth Amendment, although the court declined to
decide which.\81 American Samoa's constitution provides for due
process protection.\82 In addition, the High Court of American Samoa
has stated that "the constitutional guarantees of due process and
equal protection are fundamental rights which do apply in the
Territory of American Samoa."\83
The due process protections of the Fifth Amendment as well as the Due
Process and Equal Protection Clauses of the Fourteenth Amendment were
extended to the CNMI through the Covenant, as approved by the
Congress.\84 In a case pertaining to the CNMI, the Court of Appeals
for the Ninth Circuit upheld a restriction on transfers of land that
had been challenged on equal protection grounds. The CNMI
Constitution makes unlawful certain long-term transfers of CNMI real
estate to people not of Northern Mariana Islands descent.\85 The
court reasoned the right to hold long-term interests in CNMI real
estate is not a fundamental constitutional right and, therefore, did
not apply of its own force to the CNMI.\86 Thus, although fundamental
equal protection rights apply in the CNMI, those rights must "narrow
to incorporate the shared beliefs of diverse cultures."\87 The court
found that the Congress had the power under the Territorial Clause to
limit nonfundamental rights to accommodate the social and cultural
values of the CNMI.\88
In another case, the court, finding an absence of express
authorization from the Congress in the Covenant or federal statutes,
held that there is no right to bring an action for money damages
against the CNMI based solely on the Fourteenth Amendment. The court
also rejected the argument that direct suit under the Fourteenth
Amendment should be permitted because the CNMI, unlike the states, is
not entitled to immunity under the Eleventh Amendment, which bars
suits in federal court for money damages against a state.\89
Both due process and equal protection apply to Guam through a 1968
amendment by the Congress to Guam's Organic Act.\90 In 1992, a
federal appeals court rejected the contention of the government of
Guam that the 1968 amendment did not extend substantive due process
guarantees to Guam. The local government had argued that there was
no clear congressional intent in the amendment to extend due process.
The court strongly disagreed.\91
--------------------
\77 U.S. Const. amend. XIV, � 1, sent. 2, cl. 2.
\78 U.S. Const. amend. XIV, � 1, sent. 2, cl. 3.
\79 48 U.S.C. � 1561.
\80 U.S. Const. amend. V, cl. 3.
\81 Examining Bd. v. Flores de Otero, 426 U.S. 572, 600 (1976).
The Supreme Court struck down as violative of equal protection or due
process guarantees a Puerto Rican law which restricted the licensing
of civil engineers to those who were U.S. citizens. Id. at 606.
The Court has never found it necessary to determine whether the Fifth
Amendment applies to Puerto Rico directly or by operation of the
Fourteenth Amendment. See also Calero-Toledo v. Pearson Yacht
Leasing Co., 416 U.S. 663, 668 n. 5 (1974).
\82 Revised Constitution of American Samoa, art. I, � 2.
\83 Craddick v. Territorial Registrar, App. No. 10-79, 3-5 (H.Ct.
App. Div. Apr. 23, 1980). The court found that due process and
equal protection apply to American Samoa through the Fifth Amendment.
The court held constitutional a provision of the American Samoa Code
that prohibits the sale of land to non-Samoans, finding that,
although the provision discriminates on the basis of race, the
government of American Samoa had demonstrated a compelling interest
in preserving the lands of American Samoa for Samoans and in
preserving Samoan culture, and that the use of a racial
classification was necessary to safeguard those interests. Cf.,
American Samoa Gov't v. Falefatu, No. CR63-89, note 9 (H.Ct. Tr.
Div. Dec. 5, 1990), quoting Macomber v. American Samoa Gov't, 12
A.S.R.2d 29, 30 (1989) ("The extent to which the equal protection
clause of the Fourteenth Amendment applies in the territory is
unclear."); American Samoa Gov't v. Whitney, No. CR26-91 (H.Ct.
Tr. Div. Nov. 1, 1991).
\84 Covenant to Establish a Commonwealth of the Northern Mariana
Islands in Political Union with the United States of America, �
501(a), 48 U.S.C. � 1801 note.
\85 Id. � 805.
\86 Wabol v. Villacrusis, 958 F.2d 1450, 1462 (9th Cir. 1990),
cert. denied, 506 U.S. 1027 (1992): "The Bill of Rights was not
intended . . . to operate as a genocide pact for diverse native
cultures. . . . Its bold purpose was to protect minority rights,
not to enforce homogeneity. Where land is so scarce, so precious,
and so vulnerable to economic predation, it is understandable that
the islanders' vision does not precisely coincide with mainland
attitudes toward property and our commitment to equal opportunity in
its acquisition." Id. at 1462.
\87 Id. at 1460.
\88 Id.
\89 The suit was brought by a Filipino nurse alleging discrimination
on the basis of race or national origin at the CNMI
government-operated health center where she was employed. Magana v.
CNMI, 107 F.3d 1436, 1440 (9th Cir. 1997).
\90 48 U.S.C. � 1421b(u).
\91 Guam Society of Obstetricians & Gynecologists v. Ada, 962 F.2d
1366, 1370 (9th Cir.), cert. denied, 506 U.S. 1011 (1992): "It may
be true, as Guam argues, that the Supreme Court requires a clear
indication of congressional intent before interpreting a
congressional action as extending a right to the people of Guam. .
. . We can scarcely imagine, however, any clearer indication of
intent than the language of the [1968 amendment]." The court affirmed
a decision invalidating Guam's anti-abortion statute, as violative of
substantive due process rights under the Supreme Court's decision in
Roe v. Wade, 410 U.S. 113 (1973).
TAXATION IN THE INSULAR
AREAS
------------------------------------------------------- Appendix I:0.8
The Congress has authority to impose income taxes on the worldwide
income of U.S. citizens and corporations, including income from the
insular areas. However, federal individual and corporate income
taxes as such are not currently imposed in the insular areas.\92
A key feature of federal income tax structure affecting U.S.
corporations doing business in the insular areas has been the Puerto
Rico and Possession Tax Credit (section 936 of the Internal Revenue
Code.)\93 Enacted in 1976,\94 section 936 was for the purpose of
assisting "the U.S. possessions in obtaining employment-producing
investments by U.S. corporations."\95 The section 936 tax credit, as
originally enacted, was equal to the full amount of the U.S. income
tax liability on territory-source business income earned by qualified
firms.\96 In addition, the provision exempted from federal taxation
the income from qualified investments of profits earned in the
insular areas by section 936 firms. This tax credit was limited by
legislation approved in 1993 by the 103d Congress\97 and was repealed
in the 104th Congress by the Small Business Job Protection Act of
1996,\98
subject to a 10-year transition period beginning in 1996.\99
--------------------
\92 The Congress is vested with power "to lay and collect Taxes"
under Article I, sec. 8, of the Constitution. Individuals in the
insular areas may be subject to Federal income tax laws if they have
U.S. or foreign source income. The Congress authorized Puerto Rico
in 1919 to create its own income tax system, which it has done. Of
the other insular areas, only American Samoa has enacted its own
income tax laws. See GAO/HRD-89-104FS, August 9, 1989, and
GAO/HRD-91-18, June 20, 1991, for more detail on taxation in the
insular areas.
\93 26 U.S.C. � 936.
\94 Tax Reform Act of 1976, Pub. L. No. 94-455.
\95 S. Rep. No. 94-938, Part I, at 279 (1976).
\96 Firms qualified for the credit if, over a 3-year period, 80
percent or more of their gross income was derived from sources within
a territory and 75 percent or more was derived from the active
conduct of a trade or business within a territory.
\97 The administration in 1993, as part of its comprehensive economic
plan, proposed to reduce the amount of the credit. The Omnibus
Budget Reconciliation Act of 1993, Pub. L. No. 103-66, � 13227(a),
provided that, after 1993, firms were to calculate the credit as
under prior law, but the credit would be capped.
\98 Pub. L. No. 104-188, � 1601.
\99 Credits under section 936 attributable to qualified
possessions-source investment income are eliminated for income earned
after June 30, 1996.
RELATIONSHIP WITH THE UNITED
STATES OF NINE SMALL INSULAR AREAS
========================================================== Appendix II
The United States claims sovereignty over nine small insular areas,\1
with land masses ranging in size from less than one acre to somewhat
more than two square miles. The nine are Palmyra Atoll, Navassa
Island, Johnston Atoll, Baker Island, Howland Island, Jarvis Island,
Kingman Reef, Midway Atoll, and Wake Atoll.\2 All but Navassa Island,
in the Caribbean Sea, are in the Pacific Ocean. Many are natural
atolls, which are coral reefs with exposed islands that enclose a
central lagoon. (We often refer to these insular areas collectively
or individually as islands.)
Except for Midway and Wake Atolls, all the islands were claimed for
the United States under the Guano Islands Act of 1856.\3 Guano is
seabird droppings; rich in phosphates and minerals, it is used in
fertilizer. The act provides for the discoverer of a guano island,
if the island is uninhabited and not within the jurisdiction of any
other government, to receive the exclusive right to mine the guano
for use by U.S. citizens. Rights under the act extend not just to
the discoverer of a guano island but to his or her surviving spouse
or heirs, or to anyone to whom he or she has assigned rights to the
discovery.\4
The Guano Islands Act authorizes the President to determine, on
application, that a guano island is to be "considered as appertaining
to the United States."\5 Once that determination is made, the
President may use U.S. military forces to protect the rights of the
discoverer, or of those who derive their rights from the discoverer.
However, the law does not obligate the United States to retain
possession of a guano island after the guano has been removed.\6
The application of the Constitution to islands claimed under the
Guano Islands Act is to be determined under the general law governing
U.S. territories and possessions. The Guano Islands Act does not
discuss the application of the Constitution to the islands claimed
under its authority; its only reference to the application of federal
law is to provide that criminal acts on the islands are to be treated
as if they were committed on U.S. vessels on the high seas.\7
All nine small insular areas are "unorganized." That is, no
legislation exists providing for organization of a local government.
Indeed, these insular areas have no native population to form a
government, they lack any source of fresh running water, and are
otherwise inhospitable to self-sustaining habitation.
Figure II.1: Palmyra Atoll
(See figure in printed
edition.)
--------------------
\1 U.S. sovereignty over two other insular areas, Serranilla Bank
and Bajo Nuevo (Petrel Island) is disputed. Serranilla Bank and Bajo
Nuevo are in the Caribbean Sea, located approximately 180 miles
southwest from the southern coast of Jamaica. Serranilla Bank is a
roughly circular coral bank; on its southeast side are three small
coral-and-sand keys, or low islands, the largest of which is a half
mile in length. Bajo Nuevo, an oval-shaped coral bank situated
northeast from Serranilla Bank, has two reefs; at both ends of each
reef are small keys, the largest of which is about 300 by 50 yards in
size. The United States has long maintained claims to both
Serranilla Bank and Bajo Nuevo under the Guano Islands Act. Both
areas are claimed by Columbia and Jamaica. Serranilla Bank is also
claimed by Honduras. Nicaragua has not claimed these areas by name,
but has stated that it claims all islands and cays located on its
continental shelf; however, there is no agreed maritime boundary
between Nicaragua and Columbia, or between Nicaragua and Honduras, in
the Western Caribbean. Currently, the United States conducts
maritime law enforcement operations in and around Serranilla Bank and
Bajo Nuevo consistent with U.S. sovereignty claims.
\2 Some residents of the Stewart Islands in the Solomon Islands
group, which is located northeast of Australia and east of Papua New
Guinea, claim that they are native Hawaiians and U.S. citizens.
(See figure 1.) They base their claim on the assertion that the
Stewart Islands were ceded to King Kamehameha IV and accepted by him
as part of the Kingdom of Hawaii in 1856 and, thus, were part of the
Republic of Hawaii (which was declared in 1893) when it was annexed
to the United States by law in 1898. The 1898 law identifies the
islands being annexed only as the "Hawaiian Islands and their
dependencies." However, the annexation was based on the report of the
Hawaiian Commission which did not include the Stewart Islands among
the islands it identified as part of the Republic of Hawaii. Report
of the Hawaiian Commission, S. Doc. No. 16, 55th Cong., at 4 (3d
Sess. 1898). In 1996, some Stewart Islands residents applied to
register to vote in a plebescite limited to Native Hawaiians. Their
requests for ballots, however, were rejected by the Hawaiian
Sovereignty Election Council.
\3 The Guano Islands Act appears at 48 U.S.C. �� 1411-19. Although
claims were made to Palmyra Atoll and Kingman Reef under the act, the
presence of guano in either area is doubtful. Legal Adviser's
Office, U.S. Department of State, The Sovereignty of Islands Claimed
Under the Guano Act and of the Northwest and Hawaiian Islands,
Midway, and Wake at 612-15, 624-25 (1933) [hereinafter Sovereignty].
\4 48 U.S.C. �� 1411-13. See generally Johnson's [sic] Islands, 9
Op. Att'y Gen. 364, 367 (1859) (discussing the conditions that must
be satisfied under the act to establish a claim to a guano island);
Duncan v. Navassa Phosphate Company, 137 U.S. 647 (1891).
\5 48 U.S.C. � 1411.
\6 48 U.S.C. � 1419.
\7 48 U.S.C. � 1417.
PALMYRA ATOLL
------------------------------------------------------ Appendix II:0.1
Palmyra is an atoll in the Pacific, approximately 1,000 miles south
of the main Hawaiian group of islands. It consists of about 50
islets in an atoll grouping covering an area, including water,
approximately 6 miles wide and 1 mile long. Figure II.1 shows the
geography of Palmyra. The atoll is privately owned and generally is
uninhabited except for a caretaker.\8
Discovered in 1802 by the captain of the American ship Palmyra, the
atoll was not claimed until 60 years later, by Captain Bent, for the
Kingdom of Hawaii.\9 Captain Bent conveyed whatever interest he had
in Palmyra by deed in 1862. Palmyra was later purchased by the
Fullard-Leo family of Hawaii.\10
The Navy sought, beginning in 1938, to lease Palmyra from the
Fullard-Leos, but negotiations were never completed.\11 In 1939, the
Congress authorized the construction of naval aviation facilities on
Palmyra to serve military purposes in the Pacific,\12 and the United
States filed suit to establish its title to Palmyra. It argued that
the atoll, having been annexed by it in 1898, belonged to the United
States and not to the Fullard-Leos. After a protracted legal battle,
the Supreme Court ruled in favor of the Fullard-Leo family in
1947.\13
Figure II.2: Hawaii
(See figure in printed
edition.)
--------------------
\8 The Department of Interior has responsibility for Palmyra under
executive order. Exec. Order No. 10,967, 26 Fed. Reg. 9667
(1961).
\9 Palmyra previously had been claimed in 1860 under the Guano
Islands Act. The claim, however, does not appear to have been
accepted as valid. It is unlikely that the claimant landed on the
island or that there was ever any guano on it. Sovereignty, supra
note 3, at 612-15, 875.
\10 The deed of conveyance of Captain Bent was recorded in 1885.
Rights to Palmyra were sold to the Pacific Navigation Company (which
paid taxes to the Kingdom of Hawaii for Palmyra from 1885 to 1888).
The company's rights were conveyed by 1911 to Judge Henry Cooper.
Judge Cooper petitioned the Land Court of the Territory of Hawaii to
confirm his title. The Attorney General of the Territory disclaimed
any territorial interest in the land and, in 1912, the Land Court
decreed that Judge Cooper was the owner of Palmyra. Judge Cooper
sold parts of the atoll to Leslie and Ellen Fullard-Leo, parents of
the current owners, in 1922, for $15,000. Over the next few years,
the Fullard-Leos acquired all of the atoll, except for two of the
atoll's islets, which were retained by Judge Cooper's heirs.
\11 A letter from the Department of the Navy, dated April 1, 1953,
indicates that the Navy suspended negotiations after a 1939 Attorney
General opinion concluded that Palmyra was U.S. public land and that
the Fullard-Leo claim was invalid. S. Rep. No. 83-886 at 37
(1954).
\12 The Act of April 25, 1939, ch. 87, 53 Stat. 590, authorized the
Secretary of the Navy to establish, develop, or increase naval
aviation facilities at various locations, including Midway, Wake,
Johnston, and Palmyra Islands.
\13 United States v. Fullard-Leo, 331 U.S. 256 (1947). While the
suit was pending during World War II, the Navy occupied Palmyra and
built a runway and several buildings. In December 1940, President
Roosevelt ordered Palmyra placed under the control and jurisdiction
of the Navy and used for naval purposes. In 1941, the President
included it in the naval defensive sea area established to protect
Hawaii. Exec. Order No. 8682, 6 Fed. Reg. 1015 (1941); corr'd,
Exec. Order No. 8729, 6 Fed. Reg. 1792 (1941).
PALMYRA NOT INCLUDED IN
STATE OF HAWAII
------------------------------------------------------ Appendix II:0.2
The Republic of Hawaii was annexed by the United States in 1898
through a treaty ratified by the Hawaiian Senate and accepted by the
U.S. Congress.\14 At that time, Palmyra had been identified as part
of the Republic of Hawaii.\15 In April 1900, the Congress extended
the Constitution to the Territory of Hawaii and declared its
residents to be U.S. citizens.\16 On March 18, 1959, the Hawaiian
Statehood Act was passed and, on August 21, 1959, Hawaii became the
50th state of the Union. The act said that the "State of Hawaii
shall consist of all the islands . . . included in the Territory
of Hawaii on the date of enactment of this Act, except the atoll
known as Palmyra Island."\17 (The act also provided that the state of
Hawaii "shall not be deemed to include the Midway Islands, Johnston
Island, Sand Island (offshore from Johnston Island), or Kingman Reef
. . . .\18 )
We have found several explanations for the exclusion of Palmyra from
the state of Hawaii. The Senate report on the Hawaii Statehood Act
recommended that Palmyra not be made part of the state. That report
suggests that distance was the primary factor; it acknowledged that
Palmyra had historically been part of the Republic of Hawaii but
noted that Palmyra is separated from the nearest island on the
Hawaiian Archipelago "by more than 800 miles of open ocean."\19 A
somewhat related reason emerges from the Senate hearings on Hawaiian
statehood:
Palmyra . . . is technically today a part of the city limits
of the city of Honolulu. . . . [We] excluded [Palmyra from
the state] in deference to my friend from California who felt
that Los Angeles might be discriminated against. That would
have been the longest city limits in the world of any
incorporated city, extending 1,500 miles to Palmyra.\20
Another account adds that in addition to its distance from Honolulu,
Palmyra is uninhabited and separated from the Hawaiian chain by many
miles of international waters.\21
--------------------
\14 Act of July 7, 1898, ch. 55, 30 Stat. 750.
\15 U.S. Senate, Report of the Hawaiian Commission, S. Doc. No.
16, 55th Cong., at 4 (3d Sess. 1898).
\16 Act of April 30, 1900, ch. 339, �� 4-5.
\17 Pub. Law No. 86-3, � 2, 73 Stat. 4 (1959). Pearl and Hermes
Reef, an atoll in the northwestern part of the Hawaiian chain near
Midway Atoll, was included in the state of Hawaii in 1959 as part of
the Territory of Hawaii, although it was not listed among the islands
comprising the Republic of Hawaii by the Hawaiian Commission in 1898,
when Hawaii was annexed by the United States. This may have been an
oversight. Pearl and Hermes Reef was included in a list of the
Hawaiian Islands and dependencies prepared in 1893 by the
Commissioner of the Hawaiian Provisional Government. Sovereignty,
supra note 3, at 914. In 1909, the U.S. government designated the
area as a wildlife refuge (Exec. Order No. 1019 (1909)).
\18 Id. The legislative history of Hawaii's statehood act indicates
there was some doubt, particularly with respect to Johnston and
Midway, as to which islands had been part of the Territory of Hawaii.
A 1953 interagency conference to discuss this issue favored including
all islands within a described perimeter; the Interior Department
suggested excluding Johnston and Kingman Reef, but including Palmyra;
the Navy, which had sole control of Midway, proposed specifically
excluding that island from the new state. S. Rep. No. 83-886, at
38 (1954).
\19 S. Rep. No. 83-886, at 16 (1954). Ocean (Kure) Island, part
of the Territory of Hawaii, was included in the state of Hawaii,
although it is further from Honolulu than is Palmyra. Ocean Island,
however, is within the Hawaiian island chain.
\20 Statehood for Hawaii, Hearings on S.50 Before the Subcomm. on
Territories and Insular Affairs, 86th Cong. 59 (1959) (statement of
Sen. Jackson).
\21 100 Cong. Rec. 3485-91 (1954) (statements of Sens. Jackson,
Stennis, Anderson, and Daniel).
DOES THE UNITED STATES
CONSTITUTION APPLY IN FULL
TO PALMYRA?
------------------------------------------------------ Appendix II:0.3
It is not at issue that the Constitution applied in its entirety to
Palmyra between 1900 and 1959. There is no clear reason why the
Constitution would not continue to apply today.\22
Palmyra was part of the Territory of Hawaii to which the Congress
specifically extended the Constitution in 1900.\23 Thus, Palmyra
became an incorporated territory at that time. The Supreme Court has
suggested, in similar circumstances, that once the benefits of the
Constitution in its entirety have been extended to an area, the
Congress may not withdraw them.\24 The Court, noting that land was
carved from Maryland and Virginia to form the District of Columbia,
observed that: "This District had been a part of the States of
Maryland and Virginia. It had been subject to the Constitution, and
was a part of the United States. The Constitution had attached to it
irrevocably. There are steps which can never be taken backward."\25
Because this question was not before the Court, those remarks do not
constitute a binding precedent.
In any event, the case for continued application of the Constitution
to Palmyra is strong without reference to this Supreme Court
decision. The Constitution was extended to Palmyra by law. As
discussed above, Palmyra was excluded from the state of Hawaii and
the law extending the Constitution to Palmyra remains in effect. It
seems likely, therefore, that the courts would conclude that the
Constitution continues to apply to Palmyra.
Figure II.3: Navassa Island
(See figure in printed
edition.)
--------------------
\22 Section 4 of the 1900 law which extended the Constitution to the
Territory of Hawaii, of which Palmyra was then part, has never been
amended or repealed. Palmyra's exclusion from the state of Hawaii
left it as the only area remaining in the Territory of Hawaii after
the rest achieved statehood. While this designation is not legally
authoritative, Palmyra is listed in the Central Intelligence Agency's
World Fact Book (1996 ed.) as an incorporated territory of the United
States.
\23 Act of April 30, 1900, ch. 339, � 4.
\24 See Rasmussen v. United States, 197 U.S. 516, 529-530 (1905)
(Harlan, J., concurring) ("Congress cannot suspend the operation of
the Constitution in any territory after it has come under the
sovereign authority of the United States."); id. at 536 (Brown, J.,
concurring) (The Congress can deal with the territories as it pleases
until it extends to them the provisions of the Constitution, "which,
once done, in my view, is irrevocable.")
\25 Downes, 182 U.S. at 261, commenting on an earlier Supreme Court
decision, Loughborough v. Blake, 18 U.S. (5 Wheat.) 317 (1820). In
Loughborough, the Court found that the Congress could impose a direct
tax for general purposes on the District of Columbia. Downes
involved a dispute over whether customs duties imposed on goods
imported from Puerto Rico had to be uniform with those imposed on
goods traveling between the states. The Court held that the
Uniformity Clause of the Constitution, at Article I, � 8, did not
apply to unincorporated territories and, therefore, that different
duties could be applied.
NAVASSA ISLAND
------------------------------------------------------ Appendix II:0.4
Navassa is a pear-shaped island in the Caribbean Sea between Haiti
and Jamaica about 100 miles south of Guantanamo Bay, Cuba. The land
area of Navassa exceeds two square miles and the island is marked by
imposing limestone cliffs on all sides, rising 10 to 150 feet above
sea level. It is almost completely surrounded by a reef that impedes
access to it except through a narrow gap. Figure II.3 illustrates
the geography of Navassa.
Navassa was discovered by Peter Duncan, who claimed the island for
the United States in 1857, under the Guano Islands Act of 1856.\26
Navassa is also claimed by Haiti, Cuba, Columbia, Jamaica, Mexico,
and Honduras. Haiti has claimed the island in its constitution and
in documents describing its official boundaries. However, the United
States has viewed Navassa as its possession since 1857, and has
disputed the claims of Haiti and all the other claimants since then.
Navassa Island has come to the attention of the Supreme Court through
two cases, the better-known of which, Jones v. United States,\27
involved the question of whether a federal court in the United States
had jurisdiction over a crime committed on Navassa. The defendant
Jones, a laborer employed by the Navassa Phosphate Company, took part
in a riot on Navassa in 1889 in which one of the company officers was
killed.\28 Jones was tried and convicted in federal court in
Baltimore for the murder.
The Guano Islands Act provides that guano islands claimed on behalf
of the United States may "be considered as appertaining to the United
States," and that any crime committed on such an island would be
deemed as having been committed on the high seas on board a U.S.
vessel and be punished according to the laws of the United States.\29
The Supreme Court found that the Secretary of State had properly
proclaimed Navassa as a possession of the United States based on
Peter Duncan's petition filed under the Guano Islands Act, and that
the district court in Baltimore had proper jurisdiction.\30 In
reaching its decision, the Court observed:
By the law of nations, recognized by all civilized States,
dominion of new territory may be acquired by discovery and
occupation, as well as by cession or conquest; and when citizens
or subjects of one nation, in its name, and by its authority or
with its assent, take and hold actual, continuous and useful
possession, (although only for the purpose of carrying on a
particular business, such as catching and curing fish, or
working mines,) of territory unoccupied by any other government
or its citizens, the nation to which they belong may exercise
such jurisdiction and for such period as it sees fit over
territory so acquired.\31
In the second case, Peter Duncan's widow claimed profits from the
Navassa Phosphate Company or, in the alternative, possession of part
of the island. Peter Duncan's interest in Navassa had been assigned
to the Navassa Phosphate Company. Duncan's widow based her claim on
her dower right, the interest in her husband's property that a widow
had under the law at that time.
In holding that Mrs. Duncan had no property right to the island,\32
the Supreme Court observed that nothing in the Guano Islands Act
obliges the United States to retain possession of islands claimed
under the act after the guano is removed. With respect to the
discoverer, the only right the act confers is "a license to occupy
the island to remove the guano; this right cannot last after the
guano is removed."\33 Moreover, by the express terms of the act, this
right can be terminated at any time "at the pleasure of the
Congress."\34
In 1913, the Congress provided funds to build a lighthouse on Navassa
to safeguard the increased number of ships passing the area following
the opening of the Panama Canal.\35
President Woodrow Wilson proclaimed in 1916 that, pursuant to the
United States' original claim under the Guano Islands Act of 1856 and
subsequent congressional action in the Appropriation Act of 1913
providing for the construction of a lighthouse, Navassa was reserved
for "lighthouse purposes . . . deemed necessary in the public
interest."\36
The status of Navassa has recently come under scrutiny. In August of
1996, after determining that a light on Navassa was no longer needed
in view of advances in electronic navigation, the Coast Guard
deactivated the light and removed signs indicating the island was a
restricted area. On January 16, 1997, the Secretary of the Interior
delegated responsibility for the civil administration of Navassa to
the Office of Insular Affairs.\37
Following the removal of the light and the signs by the Coast Guard
in August 1996, an American salvager presented a claim to Navassa to
the Department of State under the Guano Islands Act. On March 27,
1997, the Department of the Interior, having in the meantime assumed
administrative jurisdiction over Navassa, denied the claimant's
application for an exclusive permit to mine guano on the island. The
Department concluded that the Guano Islands Act applies only to
islands which, at the time of the claim, are not "appertaining to"
the United States. The Department's opinion said that Navassa is and
remains a U.S. possession "appertaining to" the United States and is
"unavailable to be claimed" under the Guano Islands Act. The opinion
also concluded that, even if the Guano Islands Act could be construed
to permit the federal government to grant patents to mine guano on
islands already within the possession of the United States, the
Department would reject such an application on policy grounds.
Figure II.4: Johnston Atoll
(See figure in printed
edition.)
--------------------
\26 48 U.S.C. �� 1411-19.
\27 137 U.S. 202 (1890).
\28 Jones, 137 U.S. at 204. The testimony at trial and in later
accounts indicated that conditions on the island for the workers were
grim. The officers that supervised the laborers meted out severe
discipline, rations were poor, and living conditions were brutal.
Jimmy M. Skaggs, The Great Guano Rush at 175-77 (1994). The
workers' contracts stated that they could be kept on the island at
the company's pleasure for up to 15 months. Jones, 137 U.S. at 207.
\29 48 U.S.C. �� 1411, 1417.
\30 Jones, 137 U.S. at 211.
\31 Id. at 212.
\32 Duncan v. Navassa Phosphate Company, 137 U.S. 647 (1891).
\33 Id. at 651-652.
\34 Id.
\35 Appropriations Act of 1913, ch. 32, 38 Stat. 208, 224 (1913).
\36 Presidential Proclamation, No. 1321, Jan. 17, 1916. The
lighthouse later was converted to an unmanned beacon, which remained
in operation until 1996.
\37 Secretary's Order No. 3205, Department of the Interior, Jan.
16, 1997. Formal transfer of the island from the Coast Guard to the
Department of Interior is in process. The Secretary of the Interior
bases jurisdiction on 43 U.S.C. � 1458, which authorizes the
Secretary to exercise all the powers and perform all the duties in
relation to the territories which, prior to March 1, 1873, were
carried out by the Secretary of State, either by law or custom.
JOHNSTON ATOLL
------------------------------------------------------ Appendix II:0.5
Johnston Atoll is located about 700 miles west-southwest of Honolulu.
It consists today of two natural islands, Sand and Johnston, and two
manmade islets, North and East (also known as Akau and Hikina),
enclosed by an egg-shaped reef approximately twenty-one miles in
circumference. Figure II.4 shows the geography of Johnston Atoll.
Although first discovered in 1796, the atoll was not formally claimed
for the United States until March 1858 by the captain of the schooner
Palestine. The schooner had been chartered by two Americans, William
Parker and R. F. Ryan, specifically to find Johnston and Sand
Islands and, if guano were discovered, to claim them under the Guano
Islands Act. The atoll was located, the presence of guano was
confirmed, a flag was raised, and signs were erected stating that the
entire area was claimed for the United States and for the owners and
charterers of the schooner.
The American claim was at first disputed. In June 1858, Samuel
Allen, sailing on the Kalama under the Hawaiian flag and representing
the Kingdom of Hawaii, tore down the U.S. flag and signs on Johnston
Atoll and raised the Hawaiian flag. On July 27, 1858, the atoll was
declared part of the domain of King Kamehameha IV. However, several
months later, King Kamehameha revoked the lease on guano he had
granted to Allen when he learned that the atoll had been claimed
previously by the United States.
A large amount of guano was removed from the atoll during the next 50
years,\38 but by 1920, Johnston and Sand Islands had been abandoned.
As a result of a biological survey conducted by the U.S. Department
of Agriculture and the Bernice Paushi Bishop Museum of Honolulu in
1923, President Calvin Coolidge designated Johnston and Sand Islands
a bird refuge.\39 In 1934, President Franklin Roosevelt placed
Johnston, Sand, and Wake Islands and Kingman Reef under the control
of the Secretary of the Navy.\40 Johnston and Sand Islands remained
under the additional jurisdiction of the Department of Agriculture
for purposes of serving as a bird refuge.
With the advent of World War II, the airspace above and the waters
within the three-mile marine boundaries of Johnston and Sand Islands
were designated a naval defensive area by President Roosevelt.\41
During the course of the war, Sand and Johnston Islands were
developed as a military air base and also served as a submarine
refueling base. The atoll was heavily used during the war and, as
use of the atoll increased, so too did the land area; the military
dredged coral from the lagoon to increase the length of the runways.
In 1948, the Secretary of the Navy transferred operational control of
the atoll to the Air Force.\42 Over the next 10 years, the atoll was
used by the Coast Guard as well as the Air Force and continued coral
fill construction expanded the atoll by 25 acres. In 1958, two
high-altitude nuclear tests were launched from the atoll. Nuclear
testing resumed in 1962 with an agreement granting control of the
atoll to the Atomic Energy Commission for the Pacific Atomic Tests.
Between 1963 and 1964, the actual acreage of Johnston and Sand
islands was increased from 198 acres to 591 acres; additionally, two
man-made islands were created�North (Akau) and East (Hikina)�adding
another 24 and 17 acres respectively. At that time, the decision was
made to refer to the area collectively as Johnston Atoll.
Between 1964 and 1973, the Air Force was an active presence on the
atoll. In 1973, the Air Force agreed with the Defense Nuclear Agency
that the latter would assume operational control of the atoll.
Johnston Atoll remains under the operational control of the Defense
Nuclear Agency. It is a storage and disposal site for chemical
munitions and a standby test site for atmospheric nuclear weapons
testing. It remains a bird refuge, with the Fish and Wildlife
Service of the Department of the Interior having taken over the
duties previously assigned to the Department of Agriculture.
Figure II.5: Baker, Howland,
and Jarvis Islands
(See figure in printed
edition.)
--------------------
\38 The Attorney General ruled in 1859 that Parker, who claimed the
atoll for the United States under the Guano Islands Act, had made the
claim on behalf of the Pacific Guano Company, in which he was a
shareholder, and that Pacific Guano had exclusive rights to the
guano. 9 Op. Att'y Gen. 364 (1859).
\39 Exec. Order No. 4467 (1923).
\40 Exec. Order No. 6935 (1934).
\41 Exec. Order No. 8682, 6 Fed. Reg. 1015 (1941); Exec. Order
No. 8729, 6 Fed. Reg. 1792 (1941).
\42 Order of the Secretary of the Navy, Op24B, Serial 349P24, 15 July
1948, as reprinted in LTC Lawrence R. Bauer, A History of Johnston
Atoll: 1796-1964, at fig. 7 (1965).
BAKER ISLAND
------------------------------------------------------ Appendix II:0.6
Baker Island is approximately one mile long and 1500 yards wide,
surrounded by a narrow reef. This small uninhabited island is
located near the equator, about 1,650 miles southwest of Honolulu.
Figure II.5 illustrates the geography of Baker Island.
Baker Island was first sighted by the captain of an American whaling
ship, Michael Baker, in 1832. He marked it on a map and named it New
Nantucket. In 1839, Captain Baker returned to the area and landed on
Baker to bury a crew member. While there, he claimed the island and
raised an American flag. In 1855, Baker sold his interest in Baker
Island to a group who later formed the American Guano Company.
American Guano claimed Baker Island in 1856 under the Guano Islands
Act, and mined guano there until the 1880s, after which the island
was abandoned.
In 1936, President Roosevelt placed Baker Island, along with nearby
Jarvis and Howland Islands, under the jurisdiction of the Secretary
of the Interior.\43 An interest in developing these islands for
commercial aviation stop-overs, as well as in firmly establishing an
American presence, resulted in military personnel and Hawaiian
employees being placed at each of the islands for several months at a
time. In 1942, however, following threat of sea and air attacks by
Japanese forces, civilians were evacuated.
In July 1943, American troops built a new airstrip on Baker Island as
a forward area defense post. In September of that year, the base was
occupied and the original landing strip was lengthened to permit
bombers to land. The island housed 120 officers and 2,000 men. In
March 1944, considered no longer necessary to the war effort, it was
evacuated. The U.S. Fish and Wildlife Service was given
administrative responsibility for Baker Island in 1974, and the
island became a wildlife refuge. Public use is restricted to
scientists and educators, by special permit.
--------------------
\43 Exec. Order No. 7368, 1 Fed. Reg. 405 (1936).
HOWLAND ISLAND
------------------------------------------------------ Appendix II:0.7
Howland Island, a small coral island near the equator, lies 36 miles
northwest of Baker Island. It is about two miles long, with an
average width of a half mile, and is surrounded by a narrow reef.
Howland's land area is approximately 400 acres. Figure II.5 shows
the geography of Howland Island.
Howland was discovered in 1842 by a New England whaler, George
Netcher, who named it after the look-out who spotted it. Howland was
uninviting, with no natural anchorages and overrun with rats from an
old shipwreck. However, the guano deposits, when analyzed, were
richer than those on either Baker or Jarvis Islands. Netcher and a
friend contacted Alfred Benson who was, at the time, employed by the
American Guano Company as its president. In 1857, Benson sent his
son Arthur on a voyage to inspect and claim guano islands. Arthur
Benson sailed to Howland and claimed it for Alfred Benson and some
associates, not for the American Guano Company. Shortly thereafter
Alfred Benson resigned from American Guano and formed his own guano
company.
A legal battle ensued over the guano rights on Howland Island between
the American Guano Company and Alfred Benson, who by then was its
competitor. Alfred Benson landed on Howland Island in 1861 and
expelled employees of American Guano who were mining there. The
State Department refused to intervene to determine the rights of the
parties. The court that heard the dispute found that mere discovery
did not convey title and that, while American Guano had spent money
and erected buildings, it could not exclude Benson's company from
similarly exploiting the island.\44 The two companies were forced to
co-exist. By 1878, however, Howland's guano reserves were largely
depleted and the island was abandoned.
In 1936, Howland Island was placed under the jurisdiction of the
Secretary of the Interior, and military personnel and Hawaiian
civilian employees were brought there. The island had a role in the
ill-fated round-the-world flight attempt of Amelia Earhart. An
airstrip and a lighthouse were constructed on Howland as a refueling
site for the flight. Earhart and her navigator left Papua New Guinea
on July 2, 1937 for Howland, but were never seen again. The
lighthouse was partially destroyed during World War II, but has been
rebuilt in memory of Earhart. Civilians were evacuated from Howland
Island in 1942 following sea and air attacks by Japanese forces.
Howland Island has been administered since 1974 by the Department of
the Interior, Fish and Wildlife Service, as a wildlife refuge.
Access is restricted by permit from the Fish and Wildlife Service.
--------------------
\44 American Guano Co. v. U.S. Guano Co., 44 Barbour's Reports 23
(N.Y. 1865).
JARVIS ISLAND
------------------------------------------------------ Appendix II:0.8
Jarvis Island is about two miles long and a little over one mile
wide, with a narrow fringing reef. This uninhabited island lies just
below the equator about 1,350 miles south of Honolulu. Figure II.5
shows the geography of Howland Island.
The island was first sighted in 1832 by the American whaler, Michael
Baker, who also discovered Baker Island. Baker found guano on Jarvis
Island and claimed the island for the United States. In 1855, Baker
sold his interest in Jarvis to a group who later formed the American
Guano Company. The company claimed Jarvis as a guano island in 1856
under the Guano Islands Act. Guano was mined there intermittently
into the 1880s after which, most of the guano reserves having been
depleted, the island was abandoned by the company.
In 1936, President Roosevelt placed Jarvis Island under the
jurisdiction of the Secretary of the Interior.\45 A small group of
military personnel and Hawaiian civilians occupied Jarvis until 1942
when they were removed in anticipation of a possible Japanese attack.
Administrative responsibility for Jarvis Island was transferred from
the Department of the Interior's Office of Territorial Affairs to its
Fish and Wildlife Service in 1974. Today, Jarvis is a wildlife
refuge to which access is restricted by permit from the Fish and
Wildlife Service.
Figure II.6: Kingman Reef
(See figure in printed
edition.)
--------------------
\45 Exec. Order No. 7368, 1 Fed. Reg. 405 (1936).
KINGMAN REEF
------------------------------------------------------ Appendix II:0.9
Kingman Reef is a small, low-lying, roughly triangular atoll
approximately 900 miles south of Honolulu and 35 miles north of
Palmyra. Kingman Reef has a maximum elevation of about one meter and
is awash most of the time. It has a deep interior lagoon that
occasionally has been used by seaplanes, but its reef is a maritime
hazard and the atoll is unusable for practical purposes. Kingman
remains uninhabited. It is currently administered by the U.S. Navy.
Figure II.6 illustrates the geography of Kingman Reef.
First discovered in 1798 by an American whaler, Kingman Reef was
claimed in 1860 by the U.S. Guano Company, although there is no
evidence that guano existed or was ever mined there. The atoll was
claimed again in 1922 by Lorrin Thurston on behalf of the Palmyra
Copra Company for use as a fishing base.\46
The State Department concluded in 1933, in a study of islands claimed
under the Guano Islands Act, that claims made under the act to
Kingman Reef were not valid.\47 However, an American had initially
discovered Kingman and no other nation claimed it. In 1934,
President Franklin Roosevelt placed the reef under the control of the
Navy, formally asserting American rights to it.\48 During World War
II, Kingman was included in a naval defensive area established by
President Roosevelt.\49 In 1950, the Congress enacted a law making
Kingman Reef, along with several other insular areas, subject to the
jurisdiction of the U.S. District Court in Honolulu for purposes of
any criminal or civil cases that might arise there.\50
Figure II.7: Midway Atoll
(See figure in printed
edition.)
--------------------
\46 The president of the Palmyra Development Company, which holds a
long-term lease on Palmyra, told us that the Palmyra Copra Company,
in 1922, ceded all rights to Kingman Reef to Leslie and Ellen
Fullard-Leo. He said that the Fullard-Leo family of Hawaii paid
property taxes on the atoll to the city and county of Honolulu from
1922 to 1959, when Hawaii achieved statehood. Navy personnel
searching Hawaiian land records in 1986 were unable to find any
formal record of a conveyance of Kingman Reef to the Fullard-Leos.
\47 Sovereignty, supra note 3, at 876.
\48 Exec. Order No. 6935 (1934).
\49 Exec. Order No. 8682, 6 Fed. Reg. 1015 (1941).
\50 Act of June 15, 1950, ch. 253, 64 Stat. 217, 48 U.S.C. � 644a.
The other U.S. insular areas currently subject to the court's
jurisdiction are the Midway Islands, Wake Island, Johnston Island,
Sand Island, Palmyra Island, Howland Island, Baker Island, and Jarvis
Island.
MIDWAY ATOLL
----------------------------------------------------- Appendix II:0.10
Midway is a coral atoll located 1,200 miles northeast of Honolulu.
It consists of two main islands, Sand and Eastern. Figure II.7 shows
the geography of Midway. It was originally discovered in July 1859,
by Captain N.C. Brooks and named "Middle Brook Islands." However,
Captain Brooks never officially claimed the island. In 1867, the
U.S. Navy sent Captain William Reynolds to claim the islands for the
United States in order to establish a Pacific coaling station.\51 In
1869, the Congress appropriated $50,000 for making Midway Island into
a naval station and for enlarging the channel through the reef into
the lagoon.\52
In 1903, President Theodore Roosevelt issued an executive order that
placed Midway under the jurisdiction and control of the U. S.
Navy.\53 Construction of a naval air station began in 1940, and the
station was commissioned on August 1, 1941. On December 7, 1941, the
day Pearl Harbor was bombed, Midway was attacked by a Japanese
raiding party of four ships. In June 1942, a Japanese naval task
force approached Midway. In the ensuing battle, a U.S. carrier
group and aircraft from Midway withstood the all-out attack by a
numerically-superior Japanese group and sank four Japanese aircraft
carriers. One American carrier was lost, but this defeat of the
Japanese is considered the turning point of the war in the Pacific.
Following World War II, the Navy continued to have jurisdiction over
Midway and maintained it as an air base. In the 1970s and 1980s, the
Navy began the phase-out of operations on the atoll. In 1993, the
decision was made to close the military facility at Midway.\54 To
permit closure and new use of the atoll, environmental impact studies
were carried out. The studies indicated widespread contamination
from a variety of man-made materials to the environment and the
native wildlife.
The Navy transferred administrative control of the atoll to the Fish
and Wildlife Service on October 31, 1996.\55 The Fish and Wildlife
Service oversaw the clean-up of the island by the Navy. Clean-up was
completed in June 1997, and the Navy departed on July 1, 1997. The
Fish and Wildlife Service now has sole federal responsibility for the
atoll and has decided to open the island for limited eco-tourism. A
lease has been granted to the Midway Phoenix Corporation to run
small-aircraft flights to the island, where visitors can view the
wildlife, take diving tours, and fish. Midway Sport Fishing, Inc.
has already begun its service. Legislation is pending to study the
feasibility and advisability of establishing Midway Atoll as a
national memorial to the Battle of Midway.\56
Figure II.8: Wake Atoll
(See figure in printed
edition.)
--------------------
\51 Apparently, the Kingdom of Hawaii did not claim Midway. In 1887,
the Hawaiian Foreign Minister, in a note sent to the United States
informing the Secretary of State that formal possession had been
taken of Ocean Island in the name of the King of Hawaii, stated that
the King claimed all the islands and islets which form the chain of
the Hawaiian group extending from the Island of Nihoa to Ocean
Island, except Midway Island. The United States did not formally
respond. Sovereignty, supra note 3, at 924.
\52 Navy Appropriations Act for 1870, ch. 48, 15 Stat. 276, 279
(1869); S. Rep. No. 194, 40th Cong. (3d Sess. 1869).
\53 Exec. Order No. 199-A (1903).
\54 Pursuant to the Defense Authorization Amendments and Base Closure
and Realignment Act of 1988, 10 U.S.C. � 2687 note, the Secretary of
Defense recommended that the mission of the Naval Air Station on
Midway be eliminated. In 1993, the Base Closure Commission agreed
with the Secretary's recommendation and operations to close the
facility began.
\55 Exec. Order No. 13,022, 61 Fed. Reg. 56,875 (1996).
\56 S. 940, 105th Cong. (1997). Hearings were held on October 1,
1997, by the Subcommittee on Parks, Preservation, and Recreation,
Senate Committee on Energy and Natural Resources.
WAKE ATOLL
----------------------------------------------------- Appendix II:0.11
Wake Atoll is 2,300 miles west of Honolulu. It consists of three
islands with a land area of 2 and one-half square miles. Figure II.8
illustrates the geography of Wake. Wake is also claimed by the
Republic of the Marshall Islands. The U.S. has never recognized
this claim and has remained in exclusive control of the atoll since
the end of World War II.
Wake is not a guano island and was not claimed under the Guano
Islands Act of 1865. It is named for a British sea captain who
landed there in 1796. Brigadier General Francis Greene stopped at
Wake in 1898 enroute to the Philippines during the Spanish-American
War and raised the American flag on the island. The following year,
Commander Taussig of the U.S. Navy landed on Wake and took
possession of the island for the United States.
Wake Atoll was annexed for use as a cable station, but its main use
came in the 1930s as a refueling base for early trans-Pacific air
flight. In 1935, a Pan American Airways refueling base was set up
and a 48-room hotel was opened. By the outbreak of World War II,
Wake had been developed into a major air and submarine base.
After the war, Wake was administered by the U.S. Navy until 1962
when jurisdiction was vested in the Secretary of the Interior.\57 It
is currently being used by the U.S. Army Space and Missile Defense
Command.
(See figure in printed edition.)Appendix III
--------------------
\57 Exec. Order 11,048, 27 Fed. Reg. 8851 (1962).
COMMENTS FROM THE UNITED STATES
COAST GUARD
========================================================== Appendix II
(See figure in printed edition.)Appendix IV
COMMENTS FROM THE DEPARTMENT OF
THE INTERIOR
========================================================== Appendix II
those in the report text appears at the end of this appendix.
The following is GAO's comment on the Department of the Interior's
letter dated July 3, 1997.
GAO COMMENT
1. We have modified the report to reflect the Department of the
Interior's comments. The enclosures have not been reproduced.
(See figure in printed edition.)Appendix V
COMMENTS FROM THE RESIDENT
COMMISSIONER OF PUERTO RICO
========================================================== Appendix II
those in the report text appears at the end of this appendix.
The following is GAO's comment on the letter from the Resident
Commissioner of Puerto Rico.
GAO COMMENT
1. We have modified the report to reflect the Resident
Commissioner's comments. The enclosure has not been reproduced.
(See figure in printed edition.)Appendix VI
COMMENTS FROM THE RESIDENT
REPRESENTATIVE OF THE COMMONWEALTH
OF THE NORTHERN MARIANA ISLANDS
========================================================== Appendix II
(See figure in printed edition.)
MAJOR CONTRIBUTORS TO THIS REPORT
========================================================= Appendix VII
OFFICE OF THE GENERAL COUNSEL
Dayna K. Shah, Assistant General Counsel
Mary W. Reich, Senior Attorney
*** End of document. ***