United States General Accounting Office
GAO 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
GAO United States
General Accounting Office
Washington, D.C. 20548
Office of the General Counsel
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 areas1 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.
1As 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.
2U.S. Const. art. IV, § 3, cl. 2.
GAO/OGC-98-5 The U.S. Constitution and Insular Areas Page 1
B-271897
Figure 1: Pacific Ocean Insular Areas
Stewart Is.
Solomon
Islands
Honiara
Guadalcanal
Northern
Mariana
Islands
(U.S.A.)
Guam
(U.S.A.)
Wake
(U.S.A.)
Equator
Papua
New Guinea
Australia
Indonesia
GAO/OGC-98-5 The U.S. Constitution and Insular Areas Page 2
B-271897
Howland
Baker
(U.S.A.)
(U.S.A.)
Johnston Atoll
(U.S.A.)
American
Samoa
Jarvis
(U.S.A.)
(U.S.A.)
Kingman Reef
Palmyra Atoll
(U.S.A.)
Hawaii
(U.S.A.)
Midway Islands
Equator
(U.S.A.)
(U.S.A.)
GAO/OGC-98-5 The U.S. Constitution and Insular Areas Page 3
B-271897
Figure 2: Western Caribbean Insular Areas
Nicaragua
Navassa
Island
(U.S.A.)
Cuba
Seranilla Bank
Bajo Nuevo
(Petrel Island)
Jamaica
Cayman Islands
Honduras
GAO/OGC-98-5 The U.S. Constitution and Insular Areas Page 4
B-271897
Dominican
Republic
Haiti
Puerto Rico
(U.S.A.)
Virgin Islands
(U.S.A.)
Caribbean Sea
Columbia
Venezuela
GAO/OGC-98-5 The U.S. Constitution and Insular Areas Page 5
B-271897
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.
Results in Brief 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
3Baker Island, Howland Island, Jarvis Island, Johnston Atoll, Kingman Reef, Midway Atoll, Palmyra
Atoll, Wake Island, and Navassa Island.
4For 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.”
GAO/OGC-98-5 The U.S. Constitution and Insular Areas Page 6
B-271897
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.
Background 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
5Covenant 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.
6In 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.
GAO/OGC-98-5 The U.S. Constitution and Insular Areas Page 7
B-271897
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
7Convention 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.
8See GAO/HRD-91-18, June 20, 1991, for more detail concerning each of these areas.
9Memorandum of the President, Nov. 30, 1992, 57 Fed. Reg. 57,093 (1992).
GAO/OGC-98-5 The U.S. Constitution and Insular Areas Page 8
B-271897
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.
10An 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.
1148 U.S.C. §§ 1411-19.
12Kingman Reef has been claimed by the Fullard-Leo family. See appendix II for further discussion.
GAO/OGC-98-5 The U.S. Constitution and Insular Areas Page 9
B-271897
Observations on the
Applicability of the U.S.
Constitution to Smaller
Insular Areas
Of the nine U.S. insular areas not addressed in our earlier report, eight are
unincorporated and unorganized territories of the United States13 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
13The 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.
14See appendix I for a discussion of fundamental rights.
15The 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.
16See appendix II for more detail.
17Act of April 30, 1900, ch. 339, § 5, 31 Stat. 141-42 (1900).
18Downes 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).
GAO/OGC-98-5 The U.S. Constitution and Insular Areas Page 10
B-271897
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
Agency Comments 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.
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
19Under 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.
20Secretary’s Order No. 3205, Department of the Interior, January 16, 1997.
GAO/OGC-98-5 The U.S. Constitution and Insular Areas Page 11
Contents
Letter 1
Appendix I
Five Insular Areas -
An Update
14
Appendix II
Relationship With the
United States of Nine
Small Insular Areas
39
Appendix III
Comments From the
United States Coast
Guard
64
Appendix IV
Comments From the
Department of the
Interior
65
Appendix V
Comments From the
Resident
Commissioner of
Puerto Rico
67
GAO/OGC-98-5 The U.S. Constitution and Insular Areas Page 12
Contents
Appendix VI
Comments From the
Resident
Representative of the
Commonwealth of the
Northern Mariana
Islands
69
Appendix VII
Major Contributors to
This Report
71
Figures Figure 1: Pacific Ocean Insular Areas 2
Figure 2: Western Caribbean Insular Areas 4
Figure I.1: Puerto Rico 14
Figure I.2: Commonwealth of the Northern Mariana Islands 16
Figure I.3: Island of Guam 18
Figure I.4: U.S. Virgin Islands 20
Figure I.5: American Samoa 22
Figure II.1: Palmyra Atoll 41
Figure II.2: Hawaii 43
Figure II.3: Navassa Island 46
Figure II.4: Johnston Atoll 50
Figure II.5: Baker, Howland, and Jarvis Islands 53
Figure II.6: Kingman Reef 57
Figure II.7: Midway Atoll 59
Figure II.8: Wake Atoll 62
Abbreviations
CNMI Commonwealth of the Northern Mariana Islands
FSC foreign sales corporation
NAFTA North American Free Trade Agreement
GAO/OGC-98-5 The U.S. Constitution and Insular Areas Page 13
Appendix I
Five Insular Areas - An Update
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
San Juan
Isla de Vieques
Isla de
Culebra
Isla
Culebrita
Isla De Mona
Isla Desecheo
Puerto Rico
Caribbean Sea
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
1The 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).
GAO/OGC-98-5 The U.S. Constitution and Insular Areas Page 14
Appendix I
Five Insular Areas - An Update
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.
2H.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).
332 Int’l Legal Materials 296-456 (1993).
GAO/OGC-98-5 The U.S. Constitution and Insular Areas Page 15
Appendix I
Five Insular Areas - An Update
Figure I.2: Commonwealth of the Northern Mariana Islands
Saipan
Tinian
Aguijan
Rota
Farallon de Pajaros
Maug Islands
Asuncion Island
Agrihan
Pagan
Alamagan
Guguan
Sarigan
Anatahan
Farallon de Medinilla
Saipan
Tinian
Aguijan
Rota
North Pacific
Ocean
Philippine
Sea
GAO/OGC-98-5 The U.S. Constitution and Insular Areas Page 16
Appendix I
Five Insular Areas - An Update
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.
4H.R. 4067, 104th Cong. (1996), introduced by Rep. Gallegly; H.R. Rep. No. 104-856 (1996).
5Commonwealth of the Northern Mariana Islands v. United States, No. CV 97-0036, (D.N.M.I. Aug. 21,
1997).
6H.R. 4100, 100th Cong. (1988).
7H.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.
8H.R. 100, 105th Cong. (1997).
GAO/OGC-98-5 The U.S. Constitution and Insular Areas Page 17
Appendix I
Five Insular Areas - An Update
Figure I.3: Island of Guam
Reef
Island
Legend
Agana
North Pacific Ocean
GAO/OGC-98-5 The U.S. Constitution and Insular Areas Page 18
Appendix I
Five Insular Areas - An Update
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
9The referendum was conducted under the authority of the Virgin Islands Organic Act. 48 U.S.C. §
1593(b).
10S. 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).
GAO/OGC-98-5 The U.S. Constitution and Insular Areas Page 19
Appendix I
Five Insular Areas - An Update
Figure I.4: U.S. Virgin Islands
Saint Croix
Christiansted
Buck Island
Frederiksted
St Thomas
Charlotte Amalie
St John
(U.K.)
Tortola
Savana Island
Caribbean Sea
GAO/OGC-98-5 The U.S. Constitution and Insular Areas Page 20
Appendix I
Five Insular Areas - An Update
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.
11American Samoa: Inadequate Management and Oversight Contribute to Financial Problems
(GAO/NSIAD-92-64, April 17, 1992).
12S. 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).
13The 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).
GAO/OGC-98-5 The U.S. Constitution and Insular Areas Page 21
Appendix I
Five Insular Areas - An Update
Figure I.5: American Samoa
Reef/Shoal
Island
Legend
Taulaga
Pago
Pago
Harbor Aunuu
Island
Etena
Boat Passage
Sand Island
Sand Island
Rose Island
Rose Island Lagoon
Swains Island
Swains Island
Tau Island
Tau Island
Pago Pago
Tutuila Island
Tutuila Island
Ofu Island
Ofu Island
Olosega Island
Olosega Island
South Pacific Ocean
GAO/OGC-98-5 The U.S. Constitution and Insular Areas Page 22
Appendix I
Five Insular Areas - An Update
Applicability of
Constitutional
Provisions to U.S.
Insular Areas
“Fundamental”
Constitutional Rights
Apply to All Territories
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
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).
15The 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.
GAO/OGC-98-5 The U.S. Constitution and Insular Areas Page 23
Appendix I
Five Insular Areas - An Update
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.
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.
18Malloy v. Hogan, 378 U.S. 1 (1964).
19Dorr, 195 U.S. at 144-45.
20Although 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).
GAO/OGC-98-5 The U.S. Constitution and Insular Areas Page 24
Appendix I
Five Insular Areas - An Update
Territorial Clause 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
21U.S. Const. art. IV, § 3, cl. 2.
22The 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).
23Covenant 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.
24See 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).
25United States v. De Leon Guerrero, 4 F.3d 749, 754 (9th Cir. 1993).
GAO/OGC-98-5 The U.S. Constitution and Insular Areas Page 25
Appendix I
Five Insular Areas - An Update
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
Congressional
Representation
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
26Id. at 755.
27United 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.
28Id. 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.
29U.S. Const. art. I, §§ 2-3.
GAO/OGC-98-5 The U.S. Constitution and Insular Areas Page 26
Appendix I
Five Insular Areas - An Update
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
30H. 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).
31H. Res. 5, 103d Cong. § 7(b) (1993).
32H.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.
GAO/OGC-98-5 The U.S. Constitution and Insular Areas Page 27
Appendix I
Five Insular Areas - An Update
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.
Commerce Clause 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
33Several 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).
34U.S. Const. art. I, § 8, cl. 3.
35See Cooley v. Board of Wardens, 53 U.S. (12 How.) 299, 318 (1851).
36Lewis v. BT Inv. Managers, Inc., 447 U.S. 27, 35 (1980).
37As 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.
GAO/OGC-98-5 The U.S. Constitution and Insular Areas Page 28
Appendix I
Five Insular Areas - An Update
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
38JDS 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.
39JDS Realty, 824 F.2d at 260.
40Polychrome, 5 F.3d at 1534-35, quoting JDS Realty, 824 F.2d at 259.
41Trailer 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).
42To 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.
GAO/OGC-98-5 The U.S. Constitution and Insular Areas Page 29
Appendix I
Five Insular Areas - An Update
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.
Elections 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
43Sea-Land Serv. Inc. v. Municipality of San Juan, 505 F. Supp. 533, 545 (D.P.R. 1980).
44Trailer Marine, 977 F.2d at 6.
45Id. at 8.
46U.S. Const. art. II, § 1, cl. 3
47The 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).
48de 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).
49Amendment 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 . . . .”
50de la Rosa, 842 F. Supp. at 608-09.
GAO/OGC-98-5 The U.S. Constitution and Insular Areas Page 30
Appendix I
Five Insular Areas - An Update
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
51Id.
52Guam 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.
53Court Ruling Paves Way For Mari Bras to Vote, The San Juan Star, October 22, 1996, at 3.
54Act 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.
GAO/OGC-98-5 The U.S. Constitution and Insular Areas Page 31
Appendix I
Five Insular Areas - An Update
Puerto Rico provision of the Foraker Act has no legal effect today, having
been superseded by later law.55
Fourth and Fifth
Amendments
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
55There 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.
56U.S. Const. amend. IV.
57Precisely 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.
58Covenant 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.
59Torres 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.
GAO/OGC-98-5 The U.S. Constitution and Insular Areas Page 32
Appendix I
Five Insular Areas - An Update
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
6048 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.”)
61Revised Constitution of American Samoa, art. I, § 5.
62U.S. Const. amend. V.
6348 U.S.C. § 1561. Indictment by grand jury or information does apply to crimes prosecuted under
federal law.
6448 U.S.C. § 1421(u).
6548 U.S.C. § 1421b(e), (f), (u); Guam v. Inglett, 417 F.2d 123, 124 (9th Cir. 1969).
66Covenant 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.
67Revised Constitution of American Samoa, art. I, § 6 (Fifth Amendment rights); Am. Samoa Code Ann.
§ 46.0502 (1988) (rights of defendants).
68Torres 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.
GAO/OGC-98-5 The U.S. Constitution and Insular Areas Page 33
Appendix I
Five Insular Areas - An Update
The Fifth Amendment protection against double jeopardy69 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
69The 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.
70992 F.2d 1143 (11th Cir. 1993), modified, 3 F.3d 366 (11th Cir. 1993), cert. denied, 514 U.S. 1038
(1994).
71Sanchez, 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.
72Sanchez, 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.
73Sanchez, 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.
GAO/OGC-98-5 The U.S. Constitution and Insular Areas Page 34
Appendix I
Five Insular Areas - An Update
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.
Due Process and Equal
Protection Clauses
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 Amendment80 or, alternatively, the Due
Process and Equal Protection Clauses of the Fourteenth Amendment,
74See 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).
75Government of Virgin Islands v. Schneider, 893 F. Supp. 490 (D.V.I. 1995).
76Id. 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.
77U.S. Const. amend. XIV, § 1, sent. 2, cl. 2.
78U.S. Const. amend. XIV, § 1, sent. 2, cl. 3.
7948 U.S.C. § 1561.
80U.S. Const. amend. V, cl. 3.
GAO/OGC-98-5 The U.S. Constitution and Insular Areas Page 35
Appendix I
Five Insular Areas - An Update
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
81Examining 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).
82Revised Constitution of American Samoa, art. I, § 2.
83Craddick 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).
84Covenant 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.
85Id. § 805.
86Wabol 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.
87Id. at 1460.
GAO/OGC-98-5 The U.S. Constitution and Insular Areas Page 36
Appendix I
Five Insular Areas - An Update
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
Taxation in the Insular
Areas
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
88Id.
89The 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).
9048 U.S.C. § 1421b(u).
91Guam 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).
92The 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.
GAO/OGC-98-5 The U.S. Constitution and Insular Areas Page 37
Appendix I
Five Insular Areas - An Update
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 Congress97 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
9326 U.S.C. § 936.
94Tax Reform Act of 1976, Pub. L. No. 94-455.
95S. Rep. No. 94-938, Part I, at 279 (1976).
96Firms 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.
97The 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.
98Pub. L. No. 104-188, § 1601.
99Credits under section 936 attributable to qualified possessions-source investment income are
eliminated for income earned after June 30, 1996.
GAO/OGC-98-5 The U.S. Constitution and Insular Areas Page 38
Appendix II
Relationship With the United States of Nine
Small Insular Areas
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
1U.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.
2Some 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.
3The 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].
448 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).
GAO/OGC-98-5 The U.S. Constitution and Insular Areas Page 39
Appendix II
Relationship With the United States of Nine
Small Insular Areas
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.
548 U.S.C. § 1411.
648 U.S.C. § 1419.
748 U.S.C. § 1417.
GAO/OGC-98-5 The U.S. Constitution and Insular Areas Page 40
Appendix II
Relationship With the United States of Nine
Small Insular Areas
Figure II.1: Palmyra Atoll
Reef
Island
Legend
West Lagoon
Center Lagoon
East Lagoon
Home Island
Sand Island
Strawn Island
Cooper Island
North Pacific Ocean
Palmyra Atoll 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
8The Department of Interior has responsibility for Palmyra under executive order. Exec. Order No.
10,967, 26 Fed. Reg. 9667 (1961).
9Palmyra 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.
GAO/OGC-98-5 The U.S. Constitution and Insular Areas Page 41
Appendix II
Relationship With the United States of Nine
Small Insular Areas
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
10The 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.
11A 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).
12The 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.
13United 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).
GAO/OGC-98-5 The U.S. Constitution and Insular Areas Page 42
Appendix II
Relationship With the United States of Nine
Small Insular Areas
Figure II.2: Hawaii
Nihoa
Hawaii
Kaula
Niihau
Necker
St. Rogatien
Bank Brooks Bank
French Frigate Shoals
Northampton
Banks
Neva
Shoal
Pioneer
Bank Laysan Maro
Reef Raita
Bank Gardner
Pinnacles
Salmon
Bank Lisianski
Gambia
Shoal
Kure Atoll Ladd
Bank
Pearl and Hermes Reef Midway
Islands
Kauai
Oahu
Molokai
Maui
Lanai
Kahoolawe
Hawaii
Honolulu
(Ocean Island)
Palmyra Not Included in
State of Hawaii
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,
14Act of July 7, 1898, ch. 55, 30 Stat. 750.
15U.S. Senate, Report of the Hawaiian Commission, S. Doc. No. 16, 55th Cong., at 4 (3d Sess. 1898).
16Act of April 30, 1900, ch. 339, §§ 4-5.
GAO/OGC-98-5 The U.S. Constitution and Insular Areas Page 43
Appendix II
Relationship With the United States of Nine
Small Insular Areas
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
17Pub. 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)).
18Id. 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).
19S. 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.
20Statehood for Hawaii, Hearings on S.50 Before the Subcomm. on Territories and Insular Affairs, 86th
Cong. 59 (1959) (statement of Sen. Jackson).
21100 Cong. Rec. 3485-91 (1954) (statements of Sens. Jackson, Stennis, Anderson, and Daniel).
GAO/OGC-98-5 The U.S. Constitution and Insular Areas Page 44
Appendix II
Relationship With the United States of Nine
Small Insular Areas
Does the United States
Constitution Apply in Full
to Palmyra?
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.
22Section 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.
23Act of April 30, 1900, ch. 339, § 4.
24See 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.”)
25Downes, 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.
GAO/OGC-98-5 The U.S. Constitution and Insular Areas Page 45
Appendix II
Relationship With the United States of Nine
Small Insular Areas
Figure II.3: Navassa Island
Lighthouse
LULU BAY
Navassa Island
Lighthouse
Caribbean Sea
GAO/OGC-98-5 The U.S. Constitution and Insular Areas Page 46
Appendix II
Relationship With the United States of Nine
Small Insular Areas
Navassa Island 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:
2648 U.S.C. §§ 1411-19.
27137 U.S. 202 (1890).
28Jones, 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.
2948 U.S.C. §§ 1411, 1417.
30Jones, 137 U.S. at 211.
GAO/OGC-98-5 The U.S. Constitution and Insular Areas Page 47
Appendix II
Relationship With the United States of Nine
Small Insular Areas
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
31Id. at 212.
32Duncan v. Navassa Phosphate Company, 137 U.S. 647 (1891).
33Id. at 651-652.
34Id.
35Appropriations Act of 1913, ch. 32, 38 Stat. 208, 224 (1913).
36Presidential Proclamation, No. 1321, Jan. 17, 1916. The lighthouse later was converted to an
unmanned beacon, which remained in operation until 1996.
GAO/OGC-98-5 The U.S. Constitution and Insular Areas Page 48
Appendix II
Relationship With the United States of Nine
Small Insular Areas
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.
37Secretary’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.
GAO/OGC-98-5 The U.S. Constitution and Insular Areas Page 49
Appendix II
Relationship With the United States of Nine
Small Insular Areas
Figure II.4: Johnston Atoll
Shallow Water
Reef
Island
Legend
Akau
Island
Sand
Island
Johnston Island
Lagoon
Submerged coral reef
Submerged coral reef
Reef awash
Reef awash
Submerged coral reef
Submerged coral reef
Submerged coral reef
Numerous coral heads
Submerged coral reef
and numerous coral heads
Hikina
Island
North Pacific Ocean
GAO/OGC-98-5 The U.S. Constitution and Insular Areas Page 50
Appendix II
Relationship With the United States of Nine
Small Insular Areas
Johnston Atoll 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
38The 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).
39Exec. Order No. 4467 (1923).
40Exec. Order No. 6935 (1934).
GAO/OGC-98-5 The U.S. Constitution and Insular Areas Page 51
Appendix II
Relationship With the United States of Nine
Small Insular Areas
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.
41Exec. Order No. 8682, 6 Fed. Reg. 1015 (1941); Exec. Order No. 8729, 6 Fed. Reg. 1792 (1941).
42Order 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).
GAO/OGC-98-5 The U.S. Constitution and Insular Areas Page 52
Appendix II
Relationship With the United States of Nine
Small Insular Areas
Figure II.5: Baker, Howland, and Jarvis Islands
Reef
Island
Legend
Equator
Equator
Equator
Equator
Jarvis
Baker
Howland
Howland
Island
Amelia
Earhart
Beacon
Baker
Island
Boat
Landing
Boat
Landing
Jarvis Island
Pacific Ocean
GAO/OGC-98-5 The U.S. Constitution and Insular Areas Page 53
Appendix II
Relationship With the United States of Nine
Small Insular Areas
Baker Island 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.
Howland Island 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
43Exec. Order No. 7368, 1 Fed. Reg. 405 (1936).
GAO/OGC-98-5 The U.S. Constitution and Insular Areas Page 54
Appendix II
Relationship With the United States of Nine
Small Insular Areas
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.
Jarvis Island 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.
44American Guano Co. v. U.S. Guano Co., 44 Barbour’s Reports 23 (N.Y. 1865).
GAO/OGC-98-5 The U.S. Constitution and Insular Areas Page 55
Appendix II
Relationship With the United States of Nine
Small Insular Areas
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.
45Exec. Order No. 7368, 1 Fed. Reg. 405 (1936).
GAO/OGC-98-5 The U.S. Constitution and Insular Areas Page 56
Appendix II
Relationship With the United States of Nine
Small Insular Areas
Figure II.6: Kingman Reef
Shallow Water
Submerged Reef
Exposed Reef
Legend
La Paloma Channel
Lagoon
Exposed
Reef
North Pacific Ocean
Kingman Reef 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
GAO/OGC-98-5 The U.S. Constitution and Insular Areas Page 57
Appendix II
Relationship With the United States of Nine
Small Insular Areas
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
46The 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.
47Sovereignty, supra note 3, at 876.
48Exec. Order No. 6935 (1934).
49Exec. Order No. 8682, 6 Fed. Reg. 1015 (1941).
50Act 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.
GAO/OGC-98-5 The U.S. Constitution and Insular Areas Page 58
Appendix II
Relationship With the United States of Nine
Small Insular Areas
Figure II.7: Midway Atoll
Reef/Shallow Water
Island
Legend
Submerged coral reef
Submerged coral reef
Submerged coral reef
Submerged coral reef
Eastern Island
Spit Island
Sand Island
Welles Harbor
Lagoon
North Pacific Ocean
Midway Atoll 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
GAO/OGC-98-5 The U.S. Constitution and Insular Areas Page 59
Appendix II
Relationship With the United States of Nine
Small Insular Areas
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
51Apparently, 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.
52Navy Appropriations Act for 1870, ch. 48, 15 Stat. 276, 279 (1869); S. Rep. No. 194, 40th Cong. (3d
Sess. 1869).
53Exec. Order No. 199-A (1903).
54Pursuant 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.
55Exec. Order No. 13,022, 61 Fed. Reg. 56,875 (1996).
GAO/OGC-98-5 The U.S. Constitution and Insular Areas Page 60
Appendix II
Relationship With the United States of Nine
Small Insular Areas
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
56S. 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.
GAO/OGC-98-5 The U.S. Constitution and Insular Areas Page 61
Appendix II
Relationship With the United States of Nine
Small Insular Areas
Figure II.8: Wake Atoll
Reef
Island
Legend
Peacock
Point
Heel
Point
Toki
Point
Kuku
Point
Wake Island
Peale
Island
Wilkes
Island
Lagoon
North Pacific Ocean
GAO/OGC-98-5 The U.S. Constitution and Insular Areas Page 62
Appendix II
Relationship With the United States of Nine
Small Insular Areas
Wake Atoll 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.
57Exec. Order 11,048, 27 Fed. Reg. 8851 (1962).
GAO/OGC-98-5 The U.S. Constitution and Insular Areas Page 63
Appendix III
Comments From the United States Coast
Guard
See p. 49.
GAO/OGC-98-5 The U.S. Constitution and Insular Areas Page 64
Appendix IV
Comments From the Department of the
Interior
Note: GAO comment
supplementing those in
the report text appears at
the end of this appendix.
See comment 1.
GAO/OGC-98-5 The U.S. Constitution and Insular Areas Page 65
Appendix IV
Comments From the Department of the
Interior
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.
GAO/OGC-98-5 The U.S. Constitution and Insular Areas Page 66
Appendix V
Comments From the Resident
Commissioner of Puerto Rico
Note: GAO comment
supplementing those in
the report text appears at
the end of this appendix.
See comment 1.
GAO/OGC-98-5 The U.S. Constitution and Insular Areas Page 67
Appendix V
Comments From the Resident
Commissioner of Puerto Rico
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.
GAO/OGC-98-5 The U.S. Constitution and Insular Areas Page 68
Appendix VI
Comments From the Resident
Representative of the Commonwealth of the
Northern Mariana Islands
Now on p. 33.
GAO/OGC-98-5 The U.S. Constitution and Insular Areas Page 69
Appendix VI
Comments From the Resident
Representative of the Commonwealth of the
Northern Mariana Islands
See p. 7.
GAO/OGC-98-5 The U.S. Constitution and Insular Areas Page 70
Appendix VII
Major Contributors to This Report
Office of the General
Counsel
Dayna K. Shah, Assistant General Counsel
Mary W. Reich, Senior Attorney
(996215) GAO/OGC-98-5 The U.S. Constitution and Insular Areas Page 71
Ordering Information
The first copy of each GAO report and testimony is free.
Additional copies are $2 each. Orders should be sent to the
following address, accompanied by a check or money order
made out to the Superintendent of Documents, when
necessary. VISA and MasterCard credit cards are accepted, also.
Orders for 100 or more copies to be mailed to a single address
are discounted 25 percent.
Orders by mail:
U.S. General Accounting Office
P.O. Box 37050
Washington, DC 20013
or visit:
Room 1100
700 4th St. NW (corner of 4th and G Sts. NW)
U.S. General Accounting Office
Washington, DC
Orders may also be placed by calling (202) 512-6000
or by using fax number (202) 512-6061, or TDD (202) 512-2537.
Each day, GAO issues a list of newly available reports and
testimony. To receive facsimile copies of the daily list or any
list from the past 30 days, please call (202) 512-6000 using a
touchtone phone. A recorded menu will provide information on
how to obtain these lists.
For information on how to access GAO reports on the INTERNET,
send an e-mail message with "info" in the body to:
info@www.gao.gov
or visit GAO’s World Wide Web Home Page at:
http://www.gao.gov
PRINTED ON RECYCLED PAPER
United States
General Accounting Office
Washington, D.C. 20548-0001
Official Business
Penalty for Private Use $300
Address Correction Requested
Bulk Rate
Postage & Fees Paid
GAO
Permit No. G100