Unincorporated Territory -- An Introduction


Article IV, Section 3 of the US Constitution states that the Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States. Indeed, numerous Supreme Court decisions have held that the Constitution confers absolutely on the government of the Union, the powers of making war, and of making treaties; consequently, that government possesses the power of acquiring territory, either by conquest or by treaty.

  1. The United States has a long history of administrative authority over territories. A very early example is the situation of the "Northwest Territory," which dates back to 1787. (The Northwest Territory was later divided into the states of Ohio, Indiana, Illinois, Michigan, Wisconsin, and eastern Minnesota.)

  2. So-called "unincorporated territory," however, is an area over which the Constitution has not been expressly and fully extended by the Congress within the meaning of Article IV, Section 3. The recognition of the existence of "unincorporated territory" was determined by the US Supreme Court after the Spanish American War.

  3. As the name indicates, unincorporated territory is an overseas territorial status.
In Dorr v. United States, 195 U.S. 138 (1904), the Supreme Court held that: "The limitations which are to be applied in any given case involving territorial government must depend upon the relation of the particular territory to the United States, concerning which Congress is exercising the power conferred by the Constitution. That the United States may have territory, which is not incorporated into the United States as a body politic, we think was recognized by the framers of the Constitution in enacting the article already considered, giving power over the territories, and is sanctioned by the opinions of the justices concurring in the judgment in Downes v. Bidwell, 182 U.S. 244, 21 S.Ct. 770, 45 L.Ed. 1088 (1901)."

In Balzac v. Porto Rico, 258 U.S. 298 (1922), the Supreme Court delineated what should and should not be considered in determining whether a territory is "incorporated" into the Union. Simply put, the Court resolved that "incorporation is not to be assumed without express declaration, or an implication so strong as to exclude any other view."

Unincorporated territories are also called insular areas. The pre-existing five major Insular Areas and their approximate population figures are given as follows - American Samoa: 68,700; Northern Mariana Islands: 77,300; Guam: 163, 940; US Virgin Islands: 123,500; Puerto Rico: 3,863,150.


Background to US Insular Area Studies

The larger insular areas originally came under the sovereignty of the United States in various ways. The following is a brief introduction to major US Insular Areas, which are also called "unincorporated territories."

TYPE 1: Insular Areas Acquired by Conquest -- In a treaty signed at the end of the Spanish-American War in 1898, Spain ceded Puerto Rico, Guam, and the Philippines to the United States. In the same treaty, Spain's sovereignty over Cuba was relinquished, but no recipient was designated. The categorization of this type of Insular Area requires three criteria: (1) conquest by US military forces, (2) the US as "the (principal) occupying power," and (3) territorial cession in the peace treaty.

TYPE 2: Insular Areas Acquired by Purchase -- The United States purchased the Virgin Islands from Denmark in 1917.

TYPE 3: Insular Areas Acquired by Agreement -- Great Britain and Germany renounced their claims over Samoa in February 1900. The island group was then formally ceded to the United States by the Samoan chiefs, with ratification by the US Congress in 1929.

TYPE 4: Insular Areas Acquired after United Nations Trusteeship, as a Commonwealth of the United States -- The United States was responsible for administering the Northern Mariana Islands after World War II as a United Nations trusteeship. In 1976 Congress approved the mutually negotiated "Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States." The commonwealth government adopted its own constitution in 1977, and the constitutional government took office in Jan. 1978. The Covenant was fully implemented on Nov. 3, 1986, pursuant to Presidential Proclamation No. 5564.

(TYPE 5: An additional type of Insular Area would be those countries which have achieved independence but are now in "Free Association with the United States." However, these are not an "unincorporated territories" and hence are not considered here.)


Further Specifications

At the present time, the United States has the above five types of overseas territories which are collectively referred to as "the insular areas." All of these areas now have civil governments which handle their affairs, and this is a fact which is so commonly recognized as to scarcely need mention. Indeed, when people refer to US insular areas in the present era, they are referring to areas under "civil government," established by some organic act.

However, what many researchers have apparently forgotten is that in the earliest recognition of this concept, the TYPE 1 insular areas, were all under United States Military Government jurisdiction. We need this recognition before we can discuss the true relationship between Taiwan and the United States.

In US Supreme Court case of Fleming v. Page (1850), it was determined that:
So long as Congress has not incorporated the territory into the United States, neither military occupation nor cession by treaty makes the conquered territory domestic territory,...but those laws concerning 'foreign countries' remain applicable to the conquered territory until changed by Congress.
For those territories over which Spain gave up her sovereignty as a result of the April 11, 1899, Spanish-American Peace Treaty (Treaty of Paris), the landmark ruling of Downes v. Bidwell (1901) introduced the concept of "unincorporated territory" into the United States legal lexicon.

In other words, the US Supreme Court determined that upon the termination of Spanish sovereignty over these territories, under US law they became "US unincorporated territories." However, at the time that the Treaty of Paris came into effect (and indeed for several years thereafter in most cases), all of these territories were under United States Military Government (USMG), and not under any form of "civil government."

Hence, beginning with the Spanish-American War cessions, what the US Supreme Court is speaking of is the category of "unincorporated territory under USMG." Clearly, the three fundamental criteria for the recognition of this most basic type of US insular area are -- conquest by US military forces, the US as "the (principal) occupying power," and territorial cession in the peace treaty. (The issue of whether there is a "recipient" for the territorial cession in the peace treaty is a separate consideration. Such a designation merely means that the legislative body of the "recipient country" is authorized to pass appropriate legislation to establish "civil government" for the territory.)

Hence, the earliest recognition of US insular areas included four: Puerto Rico, the Philippines, Guam, and Cuba -- all of which were under United States Military Government. According to the historical record, civil government authorized by the US Congress was achieved on the following dates: Puerto Rico - May 1, 1900; Philippines - July 4, 1901; Guam - July 1, 1950; and Cuba - May 20, 1902.

Cuba became independent on May 20, 1902, but the other three territories continued as US unincorporated territories, each with a civil government in place as of the date indicated. Later the Philippines became independent on July 4, 1946.

CONCLUSION: Under US law, the earliest formulation of a "US insular area" as recognized by the US Supreme Court is the category of "unincorporated territory under USMG."