US sees Puerto Rico as reservation with nothing to reserve

One year after the Supreme Court’s decision in Commonwealth of Puerto Rico v. Sanchez Valle, the enactment of The Puerto Rico Oversight Management and Economic Stability Act (PROMESA), the creation of a Oversight and Management Board and the initiation of bankruptcy-like proceedings under its Title III provisions in the Federal District Court in San Juan put to bed the argument that claimed any kind of uniqueness to the political relationship between Puerto Rico and the United States.

By now, it is clear that Puerto Rico is a territory under the plenary powers of Congress as provided by Article IV, Section III of the Constitution, without limitation or reservation.

{mosads}One aspect of the territorial relationship that has not received much attention is the comparison drawn by the Supreme Court in the aforementioned case between the territory of Puerto Rico and the Native American nations, specifically the former’s lack of inherent or original sovereignty to avoid the application of the Constitution’s prohibition against double jeopardy in criminal proceedings.

It is worthy of note that this comparison places under one same legal argument the category of the territory with the domestic dependant nation as defined in Cherokee Nation v. Georgia  (1831) and Worcester v. Georgia (1832).

The Supreme Court’s Sanchez Valle opinion begs the question: In what sense is the territory of Puerto Rico comparable to a Native American nation for constitutional purposes? A quick reading would seem to suggest that they are not comparable, as the territory is a geographical category with its own constitutional genealogy, while the Native American nations are under a category that refers to peoples, and it is not necessarily tied to the geographic space they occupy.

Under Article I, Section 8, of the Constitution, Congress has the authority to regulate commerce with the “Indian Tribes.” In the controversial Johnson v. M’Intosh (1823) and the well known Cherokee cases mentioned above, the Supreme Court recognized the existence of the Native American nations within the framework of the United States Constitution, although with very limited rights.

Contrary to what some have argued, there is no constitutional impediment for the recognition of different nations existing within the nation. The so-called Indian Treaty period ended in 1871. In 1877, the General Allotment Act, also known as the Dawes Act, attempted to assimilate and dismantle the Native American nations through the individual allotment of reservation tribal lands.

The Indian Citizenship Act in 1924 granted American citizenship to Native Americans. The Indian Reorganization Act of 1934 aimed to protect and encourage tribal sovereignty, where applicable.

The term “reservation” derives from the “reserve” of sovereignty by the Native Americans at the time the United States government granted them lands, either by treaty prior to 1871 or by assignment by the Department of the Interior and its Bureau of Indian Affairs. To this day, land held by Native Americans can be individually or tribally owned — held in trust by the federal government, in restricted fee or acquired under statutory authority.

Although reservations find themselves within the geography of a given state, they are under tribal and federal jurisdiction. For our purposes, what is of interest is that the term “reservation” is not necessarily tied to the land originally held by a given nation at the time of conquest. In fact, some Native American nations do not have reservations.

In this context we should recall among so many other events when Oklahoma was Native American territory and the site for the forceful removal under the Indian Removal Act of 1830 of the Cherokee, Chickasaw, Choctaw, Creek and Seminole.

The political, economic and social costs of the juridical decoupling of the nation from the land have its most recent example in the controversies and litigation between the Lakota of Standing Rock Reservation and the United States government in the matter of the Dakota Access Pipeline. The history of the United States government treatment of the Native American nations has not been a testament to justice.

The Territorial Clause, on the other hand, refers to a geographical piece of land subject to the jurisdiction of Congress. From the Northwest Ordinance of 1787 up until 1901, these congressional plenary powers were exercised for the eventual purpose of incorporating the territories as states. Historically, this process was as fraught with political dissension, as exemplified by the application of the Missouri Compromise prior to the Civil War, or as expedient as the circumstances may have required, as in the case of California.

The Spanish American War of 1898 and the acquisition of Puerto Rico, Guam and the Philippines exacerbated a political and legal debate on whether the Constitution follows the flag and whether acquired territories are inevitably destined to become states. These debates produced a group of opinions by the Supreme Court between 1901 and 1922 referred to as the Insular Cases, which articulated the doctrine of unincorporated territories.

This doctrine, which still stands today, holds that the acquisition of territories does not necessarily imply that they are destined to become states, or that they have the full protection of the Constitution. The legal justification for this doctrine was — and is — the fact that the people who occupy the land have different cultures, languages and practices.

That is, the doctrine of unincorporated territories is thought through the prism of nationality, not geography. After Sanchez Valle, is Puerto Rico to be understood as a reservation, with nothing to reserve?

Andrés L. Córdova is a professor at Inter American University of Puerto Rico School of Law.

The views expressed by contributors are their own and not the views of The Hill.