The Not-Quite States of America

by Doug Mack

  I called Christina Ponsa again, and a Harvard expert in territorial law, and peppered them with highly specific questions about particular Insular Cases and territorial history. They had some insights but both also, at times, confessed that they had not been to all the territories themselves and they didn’t have answers for all of my questions. Perhaps no one did.

  On Super Bowl Sunday, Carlos called me from Café Lucia. He was in the middle of the dinner rush—he had customers today, more than a few—but had decided to take a break and drink a shot and, what the hell, give me a call. Emanuel was taking care of things.

  Business was fine, Carlos said. His family was doing well. He was rooting for the Seahawks—“Yeah, man, they’re my team.

  “Doug, did you write about us yet?” he said.

  “Not yet,” I replied apologetically. Still working on it.

  “You’re gonna tell people about us, though, right?”

  “Of course.”

  “Good,” Carlos said. He paused. “All right, man. Back to work.”

  As he signed off, he added—and I could picture his gaze, intense, but with a small smile—“Don’t forget about us.”

  THE TERRITORIES have made us who we are. They represent the USA’s place in the world.

  They’ve been a reflection of our national mood in nearly every period of American history, starting with the early 1800s era of Manifest Destiny, when a young country was trying to prove itself and started gathering up those tiny bird-covered islands. By the end of the century, the nation was even more eager to control the seas and become a true global power, like the other empires—the territories were integral to the military engagements and commercial enterprises that made the United States what it is today. In World Wars I and II, territory residents fought for the United States while their islands were literal battlegrounds, and were, in some cases, taken over by our enemies. And then, as the Cold War simmered and decolonization movements spread, the introduction of commonwealths and well-intentioned modernization efforts represented a softening of United States power, a showcase of our noble, egalitarian spirit. Today, in an ever more globalized world, they’re a critical link to the rest of the planet, a place where we welcome tourists but also, out in the Pacific, where we keep watch on the world’s newest superpower.

  The territories weren’t obstacles or afterthoughts on the journey toward American prosperity, they were fuel for the journey. And they continue to serve that role.

  Christina Ponsa reminded me about one of the most recent territory-related Supreme Court cases, which, she said, seemed to offer insight into where things might be headed. It had to do with another recurring headline topic that kept piquing my interest: Guantánamo Bay.

  The case was 2008’s Boumediene v. Bush. In the post–September 11, 2001, era, the CIA practiced “deliberate offshoring of interrogation and detention,” including at Guantánamo Bay, the naval base the United States has controlled since the Spanish-American War, thanks to the terms of the 1898 Teller Amendment, which assured Cuba of independence . . . Except we’re keeping this little part. This arrangement means that Guantánamo Bay “has many unique attributes that render it virtually U.S. territory,” Kal Raustiala notes in his 2009 book Does the Constitution Follow the Flag? For the Bush administration, Guantánamo’s limbo status—not quite foreign, not quite domestic—was a feature, not a bug, seemingly allowing them to write their own rules, including suspending the rights of habeas corpus. But the Supreme Court ruled that these rights did apply in Guantánamo Bay (and therefore in all territories), even for foreign detainees.

  Even more intriguing, Christina Ponsa said, were a pair of lines in Justice Anthony Kennedy’s majority opinion. First: “It may well be that over time the ties between the United States and any of its territories strengthen in ways that are of constitutional significance.” And second, Kennedy rejected the notion that “the political branches have the power to switch the Constitution on or off at will.” These comments seemed to indicate that the Insular Cases could be overturned, although it was, in legal terms, just an idle thought, to be taken up another day.

  Neil Weare, of the We the People Project, told me that if the American Samoa citizenship case went to the Supreme Court, he hoped it would lead toward the overturning of other Insular Cases, and this would help empower people in the territories to fight for their own future, whatever it may be. Months later, after a setback in the District of Columbia appeals court, Weare and his team petitioned the Supreme Court to hear their case. Neil seemed confident they would do so. But in June 2016, the court declined, leaving American Samoa’s antiquated citizenship laws in place.

  The same day that the Supreme Court passed on Weare’s case, it issued a ruling on another territory-related case, Puerto Rico v. Sanchez Valle, which revolved around a question of double jeopardy. The Constitution says that you can’t be charged twice for the same crime unless the trials are in “separate sovereigns,” by which it means the federal and state governments. Luis M. Sánchez Valle was convicted in federal court on firearms charges, and charged with similar crimes in Puerto Rico, but his lawyer argued that Puerto Rico, by virtue of its political status, was not a “separate sovereign,” and these charges amounted to double jeopardy, in violation of the Fifth Amendment. Slate summarized the central question: “The Supreme Court Ponders Whether Puerto Rico Is a Real State or a Fake Colony.” To say it is legally a separate sovereign is to effectively grant Puerto Rico more autonomy than it actually has under the current legal setup; to say it’s not separate is to admit that the ELA is basically a sham, and Puerto Rico is a territory and, by the UN’s measurement, a colony.

  U.S. Solicitor General Donald Verrilli—the voice of the federal government before the Supreme Court—filed a brief stating that Puerto Rico is not a sovereign. “As a constitutional matter, Puerto Rico remains a territory subject to Congress’s authority under the Territory Clause.” The court, in a 6-2 ruling, agreed.

  Alexis de Tocqueville wrote that “scarcely a political question arises in this country that does not sooner or later resolve itself into a legal question,” and that was certainly true of the expansion debate, as the Imperial Moment led to the Insular Cases. But while the territories have largely been forgotten as a political matter, they remain an active concern in the courts.

  These two recent cases were setbacks in the mission to overturn the Insular Cases, but at some point, the legal questions will bear enough weight to force the political questions back into broad debate. Add in Puerto Rico’s next referendum, and it’s clear that the territories may yet reenter the national conversation and may yet attain more self-determination.

  Here’s to hoping.

  MEANWHILE, on the global scale, familiar issues of empire-building were repeating. Russia planted a titanium flag at the bottom of the Arctic Ocean, in an attempt to claim the North Pole (and any oil or other minerals in the seabed) and, more generally, to assert ownership over an icy region that was becoming increasingly accessible due to global warming. And the world’s eyes were on the South China Sea, where China was not just colonizing specks of land but building them from scratch, in the Spratly Islands. The satellite images were stunning: new landmasses with bases and runways, where months earlier there had been the tiniest of islets or mere reefs, the transformations involving a sophisticated dredging system utilizing flotillas of ships. The largest island-building was at a place called Fiery Cross Reef, where a ten-thousand-foot runway now cut through the water. In nearby areas, Japan, Vietnam, the Philippines, Taiwan, and Malaysia were busy staking their own claims to various bits of land. The New York Times published a map of the region showing all these outposts, and there were so many highlighted dots that it looked like someone had spilled confetti. At stake: mineral resources, fishing, and control of one of the planet’s busiest shipping regions, carrying $5 trillion worth of trade every year.

  The U.S. Department of Defense said that China’s “extensive land reclamation activities,
particularly the prospect of further militarizing those outposts, are very concerning to us,” and were part of the reason for the ongoing “Asia-Pacific shift,” a key of which was the buildup of the bases on Guam. China, for its part, insisted that its activity was all for civilian purposes, including “aids for navigation, search and rescue, as well as marine meteorological forecasting services, fishery services and other administrative services.” The same talking points that the United States used when it sent colonizers to Howland, Jarvis, and Baker Islands. Nothing to see here, move along.

  Somewhere, Alfred Mahan, he of the Imperial Moment call-to-action The Influence of Sea Power upon History, was smiling.

  WHAT SHOULD the future hold, for Puerto Rico or any of the territories?

  I’ve been grappling with that question since those first days of research, after the Quarters of Destiny, and the honest truth is, I’m still not sure. Statehood seems to make the most sense for Puerto Rico—count me as a Jaded Realist in that regard—but I’m also sympathetic to the independence view. One suggestion I heard a few times is a referendum offering a straight, once-and-for-all choice between statehood and independence. To me, this makes a lot of sense.

  But never mind what I think. It should be up to the citizens of the territories, both the long-standing ethnic groups and the newcomers who call these places home, to decide their own fate. Their affairs have been largely dictated by far-off and often indifferent administrators and local officials consumed with maintaining their own power. It’s high time the people had more say in what happens to them—you know, all that democracy stuff—not just by repackaging the existing setup (this means you, commonwealth status) but in real, tangible ways.

  And the issue of political status is, in the immediate term, not the right question. There are so many other underlying issues that can and should be addressed first, including the need for more investment in basic services and the creation of long-term economic opportunities beyond minimum-wage jobs and corporate tax breaks that could be repealed at any minute. In addition, American Samoa should be organized and all the territories incorporated, so that they’re really, truly part of the country, not merely possessions, and have the full and unquestioned protections of the Constitution. Beyond that, it’s high time they got true congressional representation and a presidential vote. Yes, it’ll require a change to the Electoral College, but I trust that with a bit of all-American effort and ingenuity we can somehow make it work, as we did with the District of Columbia. It’s a travesty for a country that claims to be a Magnanimous Exemplar of Democracy for the World to shut anyone—let alone millions—out of the political system purely because of the geographic coordinates of their home.

  The last hundred-plus years have shown that, contrary to the Democrats’ talking point in the 1900 election, a nation can endure half republic and half empire. But that doesn’t mean it should. As the 1900 Democrats said a paragraph later, the territorial setup, as it stands, is “a colonial policy, inconsistent with republican institutions.” To answer the question I’d been pondering since the earliest days of this project: Yes, the territories are, in fact, modern-day colonies. Of course they are. This fact has not changed since the Imperial Moment. And that’s a problem, one that we, the United States of America, must resolve.

  We need to talk about the territories again. We need to start listening to them, too. The people of these far-off islands are not “foreign aliens.” They are us.

  ACKNOWLEDGMENTS

  My thanks, first of all, to the many people in each territory who shared their stories and perspectives and let me into their lives, if only for a moment. Time and again, complete strangers went out of their way to show me around their neighborhoods, their towns, their entire islands.

  I’ve mentioned many of these people throughout the book, and in a few rare instances, I’ve changed names and other identifying details to protect their privacy, but every person is entirely, singularly real. I recorded formal interviews and many other conversations either with a digital recorder or through copious notes in real time. During some casual interactions, however, I did not actively take notes but wrote down as much as I could minutes or hours later; in doing so, I did my absolute best to stay true to the tone, content, and phrasing of the discussion. In assembling the narrative of the book, I also occasionally shifted the chronology of my experiences on each island.

  Beyond the individuals who appear in the chapters, I’m grateful to everyone who helped me with my travels, either in the planning stages or during my travels on the ground. A few people deserve special mention for going above and beyond. In the U.S. Virgin Islands: Elizabeth Sudmeier Stevenson and Wingrove Lynton. In American Samoa: Celeste Brash and Michael Larson. On Guam: Catherine Kowal, Jamie Knapp, and Andy Wheeler. In the Northern Mariana Islands: Rellani Ogumoro. In the Marshall Islands: Jay Plasman and Scott Christensen. In Puerto Rico: Yaremis Felix, David Skeist, Julie Schwietert Collazo, Hal Bromm, and Doneley Meris. And Noelle Kahanu provided much-needed information about the Hui Panalä’au island-colonization project.

  The many times I struggled to understand the legal matters relating to the territories, I sought out the patient explanations of Harvard Law Professor Gerald Neuman, and, most of all, Columbia Law Professor Christina Duffy Ponsa. Neil Weare also helped walk me through these issues and put me in touch with a number of people in the territories. Neil’s organization, the We the People Project (www.equalrightsnow.org), is fighting the good fight and, even with minimal resources, making strides in gaining more rights for the territories.

  This would all be simply a stack of notebooks, a not-quite book, if not for the support and hard work of my agents at the Jean V. Naggar Literary Agency, Alice Tasman and, especially, Elizabeth Evans, whose early encouragement helped propel me out the door and into the world. It was a joy working with my editor, Matt Weiland, whose insights, wisdom, and gentle critiques over the course of many months and more than a thousand(!) marked-up pages transformed a mass of ideas into the book you now hold in your hands. Thanks also to Remy Cawley and the whole team at Norton who worked tirelessly behind the scenes.

  I’m grateful for the feedback on early drafts from Michael Cook, Leif Pettersen, Frank Bures, Jason Albert, Maggie Ryan Sanford, Lars Ostrom, Sara Aase, Dennis Cass, and Ashley Shelby. Their comments, commiseration, and arguments over word choice improved this book immeasurably. Thanks to Kirk Horsted for his ongoing encouragement and to Michael Blades, Kathy Kilroy, and everyone at the Key West Literary Seminar for their support.

  My family and friends provided unending pep talks and, when needed, morale-boosting pastries. Special thanks to Elisabeth Munger, Shirley Sailors, Sebastian and Becky Celis, Hannah Kaplan, John Neely, and, especially, to my parents, who were my earliest boosters and continue to support me in so many ways. And a shout-out to Tiffany Loeb Schneider, who happened to tweet a story about the National Park of American Samoa, which Maren happened to see, setting this book in motion.

  Finally and most of all, to my wife, Maren, and our daughter, Maja, who inspire me and keep me going every day. As I write this, it’s the small hours of the morning and they’re both in bed while I’m sprawled on the living room floor, the tight knots of the carpet etching my elbows as I stare at my laptop screen, searching for the right words—a familiar scene around here. But I know Maren’s waiting up for me, ever-supportive of my writing career, and I can hear Maja starting to stir in the baby monitor, so it’s time for me to return to them, with these words for posterity: I love you both so much. Thank you for everything.

  FURTHER READING &

  NOTES ON SOURCES

  These pages are not the final word on the territories but merely a starting point—I encourage readers to go to the territories, have conversations, read more, learn more. There’s lots I had to leave out and, as I’ll be the first to admit, a whole universe of perspectives and history that I still don’t know, despite my best efforts.

  Researching this book took me deep
into government white papers, century-old texts in assorted libraries, and even a few offbeat YouTube videos, along with stacks and stacks of books and articles from newspapers and magazines. I’ve called out my sources throughout the book, but a few deserve special mention here, particularly for anyone interested in learning more about the territories.

  For a general overview of the territories, their histories, and some of the high-level issues, I relied most heavily on Arnold H. Leibowitz’s Defining Status (1989), along with the books Foreign in a Domestic Sense (2001), edited by Christina Duffy Burnett and Burke Marshall; Colonial Constitutionalism (2002), by E. Robert Statham, Jr.; Does the Constitution Follow the Flag? (2009), by Kal Raustiala; Imperial Archipelago (2010), by Lanny Thompson; and Reconsidering the Insular Cases (2015), edited by Gerald L. Neuman and Tomiko Brown-Nagin.

  Beyond these books, I relied on an assortment of works related to each specific territory. For the USVI, my key sources were America’s Virgin Islands (2010 edition), by William W. Boyer; A History of the Virgin Islands of the United States (1974 edition), by Isaac Dookhan; and St. Croix Under Seven Flags (1970), by Florence Lewisohn. For American Samoa: American Samoa: 100 Years Under the United States Flag (2000), by J. Robert Shaffer, and I’d be remiss if I didn’t also mention the delightful memoir My Samoan Chief (1977), by Fay G. Calkins, mother of Charles Ala’ilima and Marie Alailima. For Guam: Destiny’s Landfall (1995), by Robert F. Rogers; the online resource Guampedia also provided useful insights on a variety of subjects. For the CNMI: From Colonialism to Self-Government: The Northern Marianas Experience (2010), by Jose S. Dela Cruz, along with the documentary The Insular Empire (2010) and, specific to the garment industry, Nobodies (2007), by John Bowe. For Puerto Rico: Puerto Rico in the American Century (2007), by César J. Ayala and Rafael Bernabe; The Puerto Ricans: A Documentary History (1999), edited by Kal Wagenheim and Olga Jimzenez De Wagenheim; and Puerto Rico: The Trials of the Oldest Colony in the World (1997), by José Trías Monge. And, finally, for the Minor Outlying Islands, The Great Guano Rush: Entrepreneurs and American Overseas Expansion (1994), by Jimmy M. Skaggs, and, for the Hui Panalä’au program, the documentary Under a Jarvis Moon (2010), along with the Hui Panalä’au: Hawaiian Colonists in the Pacific, 1935–1942 oral histories compiled by the University of Hawaii at Manoa in the early 2000s.