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  • Writer's pictureBy Gabriel McCoard

Guam’s lack of a vote in Congress is related to oranges from Puerto Rico

On the evening of Feb. 15, 1898, an explosion ripped through the USS Maine, a U.S. Naval Battleship anchored at the harbor in Havana, Cuba, quickly sinking it and killing over 260 mariners.

Warranted or not, blame fell on Spain, already in the midst of a Cuban war for independence, which soon found itself in a Spanish-American War facing down Teddy Roosevelt and the Rough Rider Cavalry.

By year’s end, Spain surrendered many of its holdings in the Caribbean and Pacific, and the United States officially became an imperial nation.

Puerto Rico, Guam and the Philippines became territories, eventually to be joined by American Samoa, the U.S. Virgin Islands and the Northern Marianas Islands.

Hawaii, already under the American umbrella, would soon be destined for statehood, while the territories found themselves on a different course after the Customs Inspector for the Port of New York tried to charge import duty on oranges from Puerto Rico.

The question for the U.S. Supreme Court was: “Were products from Puerto Rico – and by extension, any newly added territory — foreign imports or domestic commerce now that the island was part of America?

Let’s be more blunt: Why was Hawaii different?

According to the U.S. Supreme Court and the Insular Cases, a handful of decisions stemming from the acquisition of these islands, under the incorporation doctrine, it was up to Congress to determine how far the U.S. Constitution extended into new territories, including the civil rights of native inhabitants.

Territories could either be cleared for becoming a state, such as Hawaii, or unincorporated and not intended for statehood. Either way, governments had to be established, and they were obligated to protect certain (undefined) fundamental rights.

The Insular Cases are once again in the political spotlight, with the Guam Legislature recently taking testimony to support ending the legacy of these cases.

On March 26, Arizona Rep. Raul Grijalva introduced in the U.S. House of Representatives Resolution 279, seeking a formal congressional acknowledgment that these century-old cases are based on racist stereotypes and are contrary to constitutional and democratic principles.

Here’s an overview of some Insular Cases.

Downes v. Bidwell (1901): The customs duty on oranges from Puerto Rico case was also penned by the justice behind the “separate but equal” doctrine from Plessy v. Ferguson, allowing legal discrimination for a half-century afterward. Downes v. Bidwell began to form the Incorporation Doctrine, finding first a congressional responsibility to determine whether a place can become a state, and if not, then only fundamental guarantees from the Constitution apply.

The court found it “obvious” that the provisions of the Puerto Rico treaty “do not stipulate for incorporation, but expressly provide that the ‘civil rights and political status of the native inhabitants of the territories hereby ceded’ shall be determined by Congress,” and that citizenship for inhabitants had been removed during Senate deliberations.

It further found that if the U.S. were to “discover an unknown island, peopled with an uncivilized race, yet rich in soil and valuable to the United States for commercial and strategic reasons…. the right to ratify such acquisition and thus to acquire the territory would pertain to the government of the United States.”


The court’s words don’t endear to contemporary audiences.

“Can it be denied that such right could not be practically exercised if the result would be to endow the inhabitants with citizenship of the United States and to subject them, not only to local, but also to an equal proportion of national, taxes, even although the consequence would be to entail ruin on the discovered territory, and to inflict grave detriment on the United States, to arise both from the dislocation of its fiscal system and the immediate bestowal of citizenship on those absolutely unfit to receive it?”

While fundamental rights had to be protected, there was not much guidance from the Supreme Court as to what that meant.

Dorr v. US (1904). Briefly stated, the right to a jury trial was not a fundamental right in the Philippines for a newspaper publisher convicted of libel.

Ocampo v. US (1914). Since the Philippines was not incorporated, there was no right to confront witnesses within the meaning of the 6th amendment to the U.S. Constitution.


Balzac v. Porto Rico (1922). Perhaps one of the more significant of the Insular Cases, Balzac found that while the U.S. conferred citizenship on Puerto Rican residents, it was not incorporated, and thus, there was no right to a trial by jury for misdemeanors.

The Supreme Court majority stated, “the Porto Rican cannot insist upon the right of trial by a jury except as his own representatives in his legislature shall confer it on him. The citizen of the United States living in Porto Rico* cannot there enjoy a right of trial by a jury under the federal Constitution, any more than the Porto Rican. It is the locality that is determinative of the application of the Constitution, in such matters as a judicial procedure, and not the status of the people who live in it."

As for Guam, the 1950 Organic Act stated that “Guam is declared to be an unincorporated territory of the United States.”

In terms of charting a path forward, it is not clear at this point whether island communities have a consensus as to what they want.

Gabriel McCoard is an attorney, who previously worked in Palau and Chuuk State. He is currently weathering the pandemic stateside. Send feedback to

(*The island's name was changed to Porto Rico by the United States after the Treaty of Paris. The name was changed back to Puerto Rico in 1931 by a joint resolution in Congress.)

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