Altered States: The US Virgin Islands and Puerto Rico

John F. McKeon 

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In the early 20th century, America was flexing its economic and political muscle on the international stage. Throughout the late 19th and early 20th centuries America’s rise as a dominant power in the Caribbean involved a gradual shift from indirect economic influence to overt military and political control. This shift was motivated by strategic interests, economic expansion, and imperial ambitions, the US supplanted declining European colonial powers and established its own sphere of influence in the region. As the nation acquired new territories, it needed to clarify, codify and classify its new acquisitions. Burdensome questions regarding legal decisions made at the time concerning the Territories still disturb us to this day 

Is a colony not a colony just because the colonizer says so? Is an American citizen a full citizen when all the rights guaranteed him are abridged? Why are the USVI and Puerto Rico considered separate but not equal to Hawaii and Alaska? Why are Hawaii and Alaska part of the Union while the USVI and Puerto Rico aren’t? What is the difference between an incorporated and non incorporated states? What does insular truly mean? To answer these questions and a few more we need to go back and examine the end of the Spanish-American War in 1898. An era when America became an empire. 

 The Age of Imperialism   

A political cartoon in Puck magazine on January 25, 1899, captures the mind-set of American imperialists. Library of Congress. 

The Spanish-American War began in 1898, with the ‘mysterious’ explosion of the USS Maine that killed 266 Americans. The United States declared war on Spain, fueled by sympathy for Cuban rebels fighting for independence, "yellow journalism" portraying Spanish atrocities, and the rallying cry of ‘Remember the Maine!’ The declaration launched the US into a new era of global power and ended nearly four centuries of Spanish imperial rule in the Americas and the Pacific. Cuba had been fighting for independence from Spain since 1895. The conflict disrupted US trade with Cuba and American investments in the island. The Treaty of Paris (1898) ended the war, with Spain ceding Puerto Rico and Guam to the US and the US purchase of the Philippines for twenty-million dollars. Cuba gained limited independence, with significant limitations imposed by the US. The war marked the United States' emergence as a global power and an imperial force. It also acquired strategic overseas territories in the Caribbean and Pacific, gaining new markets, military bases, and global influence. The McKinley Administration also used the war as a pretext to annex the independent state of Hawaii.(1)

The US acquired the Danish West Indies from Denmark and renamed them the US Virgin Islands. The impetus for the purchase was both military and strategic during the first World War. The US was concerned that Germany might invade neutral Denmark and then use the islands as a naval base in the Caribbean. It also provided the US with a vital position to defend the newly opened Panama Canal and to secure American interests in the region. Denmark, which had been attempting to sell the islands for decades due to their economic decline after the abolition of slavery, was persuaded by the offer of $25 million in gold along with the implied threat of a US military ‘occupation’. Now we get to the questions in the opening paragraph of this article. In 1901 the United States designated Puerto Rico as well as the US Virgin Islands as ‘unincorporated’ territories. This was a result of a Supreme Court ruling that created a new legal distinction for territories. Unlike the earlier "incorporated" territories that were always considered on the path to statehood. This classification still allows the US to maintain control over these territories without granting them full constitutional rights or the same path to statehood as prior territories. This determination was influenced by strategic interests, political considerations, and the nature of the territories acquired after 1898. 

Prior to 1898, all new territories acquired by the US were "incorporated," implying they were on the way to statehood.(2) This changed after 1898, new territories were considered "unincorporated by default" unless Congress decided otherwise. The judicial system created the unincorporated status to fill the void left by Congress when it did not specifically define the status of these territories. This alteration allowed for more control by the federal government without the obligations of statehood. 

Historically, all colonies were established foreign settlements by people who claimed possession for their country of origin. The governments of colonies were developed under the control of a remote state. The population of the distant colony was customarily voiceless in their own governance and were not represented in the ruling state's legislature. 

An unincorporated territory became a legal designation for dependent territories of the US. Eventually these territories gained some degree of self-governance but are subject to the authority of the US Congress. The US Constitution is not fully applied in these territories, and they are not considered part of the US in the same way as states. Residents of these territories have US citizenship. The main difference is the relationship to the dominant state. A colony implies direct control, while an unincorporated territory implies a temporary, dependent status with a degree of self-rule and specific constitutional limitations. It was not always this way, there were changes along the way. 

Supreme Court:1900-1930s 

Downes v Bidwell 

What was the reasoning behind the change? It appears the US purchased the Virgin Islands primarily for strategic reasons to secure tranquility in the Caribbean. However, now there were rising new political and cultural factors to consider. 

The US faced new considerations when acquiring territories after the Spanish-American War. The decision to make them unincorporated allowed the US to retain control and influence without granting the full rights of states, a move complicated by various political and cultural attitudes at the time. Unlike early territories that naturally moved toward statehood, Puerto Rico and the US Virgin Islands were not intended to become states under this new classification. How did this distinction come about? It begins with a case of oranges! 

In 1900, Congress passed the Foraker Act,(3) the first of the ‘Organic Acts’ (4) which established a civil government in Puerto Rico (and later in the USVI). and imposed tariffs on goods transported between the island and the US. 

Samuel Downes imported oranges from Puerto Rico and was forced to pay the new tariffs. He sued Bidwell, the customs inspector. Downes believed the Foraker Act to be unconstitutional and appealed under Article I which requires "all duties, imposts, and excises shall be uniform throughout the United States”. The Downes and Bidwell case reached the Supreme Court(5). The Supreme Court decided the Constitution does not 5automatically apply to territories acquired by the US. 

This created a series of precedents that became known as ‘The Insular Cases’. Insular Cases are a series of Supreme Court decisions from the early 1900s that established the "unincorporated territory" doctrine. Two decades later, in Balzac v. Porto Rico (6) the court reaffirmed the Downes decision notion of territorial incorporation and held that Puerto Rico remained a territory and that the Sixth Amendment's guarantee was not a fundamental right for unincorporated territories. 

These rulings created a constitutional justification for the United States to govern overseas territories like Puerto Rico as subordinate and unequal. The Court granted fundamental but not total constitutional rights to their inhabitants. Most of these decisions were influenced by prevailing racist attitudes that continue to have implications today, particularly regarding citizenship rights and equality in US territories. 

What’s in a Name? 

So is there any real difference between an unincorporated territory and a colony? It seems they key differences lie in how constitutional rights apply to residents, how they were acquired, and their path to potential future incorporation or independence. The distinction between an unincorporated territory and a colony is largely a matter of framing and legal interpretation, particularly within the United States. After the Spanish American War, the US acquired territories like Guam and the Philippines. To avoid being seen as a colonial power, which was unpopular around the world at the time, the government labeled these acquisitions as ‘unincorporated territories’. The thought of the US owning colonies reeked with the stench of Imperialism and empire building so the answer was to call them something else. 

Yet, despite the formal distinction, many critics and international bodies, including the United Nations Special Committee on Decolonization. consider US unincorporated territories to be modern-day colonies due to their lack of voting rights and unequal treatment.(7)

Over time, America dropped the term ‘colony’ and replaced it with designations like ‘territory' or ‘possession’, this was to downplay its colonial ambitions, while slowly attempting to improve governance through the Organic Acts such as The Jones– Shafroth Act (1917): which replaced the Foraker Act by granting US citizenship to Puerto Ricans, expanding the local legislature, and providing for a popularly elected senate. For the US Virgin Islands, the Organic Act of 1936 Established a government for the US Virgin Islands, replacing earlier military and other temporary provisions. The Revised Organic Act of 1954 superseded the 1936 act and established the current structure of the island's government. 

So, why was the distinction Made? There are four main reasons 1)The ‘unincorporated’ designation allowed the US to govern these territories without being bound by the full force of the Constitution, enabling a more imperialistic model of control, 2) other than those territories that fell within continental barriers and earlier US territories like Hawaii and Alaska which were generally expected to become states, the newly acquired territories were not given this promise of eventual political equality, 3) The Supreme Court decisions were most likely influenced by biased attitudes about who should or could belong to the expanding American nation. The Court essentially created a lesser status for these non-white, non-contiguous populations, and 4) The US maintained strategic and economic interests in these territories, access to natural resources and military bases which were easier to protect under the unincorporated status. 

There are advantages to this scheme. All of the unincorporated territories, including American Samoa, travel freely to the fifty states and are able to seek employment. They have US passports. They pay into and receive Social Security and Medicare. As a general rule, residents of unincorporated territories do not pay federal income tax, only a territorial income tax (unless they work for the federal government, in which case they pay federal income tax). While residents of these territories do not vote in US presidential elections, political parties may opt to let them vote in the primaries. Each territory elects a single delegate to the US House of Representatives but none to the Senate; their delegates to the House can vote in committees but not on the floor. Because they are US citizens, males from Guam, the Northern Mariana Islands, Puerto Rico, and the US Virgin Islands are subject to any military conscription (8) if ever necessary. 

Will the US ever make Puerto Rico and the Virgin Islands states? 

For that to happen… a lot has to happen. There are sixteen unincorporated territories under the flag of the United States of America. Eleven of them have no permanent population. This leaves only five candidates for statehood— American Samoa, Puerto Rico, US Virgin Islands, Guam, and the Northern Marianas. Puerto Rico has more people than all the others combined (9)

Puerto Rico roughly has around 3 million people, and the political will seems to be there. The only thing stopping statehood is Congress. So far Congress is unwilling to consider any change in the current status of these territories. It is also unwilling to give two Senators to each with fear of either political parties gaining any advantage over the other. 

In conclusion it must be noted that the Supreme Court at the time of these rulings was the same court that decided Plessy v. Ferguson, a landmark 1896 case that established the "separate but equal" doctrine, legally permitting racial segregation under the Fourteenth Amendment.The Civil War-era constitutional commitment to racial equality had already been weakened by efforts to disenfranchise African Americans. The Insular Cases continued this trend, allowing expansionists to acquire territory without extending full citizenship rights to people they deemed ‘alien’. The Organic Acts were a very slow attempt to correct the system, some would say too slow. 

The Insular Cases were US Supreme Court rulings from the early 1900s that created a faulty legal framework for US colonial expansion. This allowed the federal government to administer its acquired overseas territories without being fully constrained by the Constitution. These decisions are widely and critically condemned today as being rooted in racism and imperialism, establishing a lasting legacy of unequal citizenship and disenfranchisement in places like Puerto Rico and the US Virgin Islands. 

Historian John F. McKeon lives on St. Croix USVI and in Southampton NY. He holds degrees from Trinity College Dublin, (MPhil with Distinction). and St. Joseph's University New York (Summa Cum Laude) B.A. East Asian History with a Philosophy Capstone Minor in Labor, Class and Ethics. John also has certificate from the Oxford University Epigeum Research Integrity Center. He is a current member of the Society of Virgin Island Historians. 

Foot Notes

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1. In 1893, a group of Hawaii-based planters and businessmen led a coup against Queen Liliuokalani and established a new government. They promptly sought annexation by the United States, but President Grover Cleveland rejected their requests. In 1898, President McKinley and the American public were more in support of acquiring the islands, they argued that Hawaii was vital to the US economy, and it would serve as a strategic base to help protect interests in Asia, 

   
   

2. Early incorporated US territories were the first parts of the mainland United States that were not states but were considered "integral parts" of the country, with the US Constitution fully in effect. Examples include the Northwest Ordinance of 1787 (which later became Ohio, Indiana, Illinois, Michigan, Wisconsin, and Minnesota), the Louisiana Purchase, Hawaii annexed in 1898, was organized as a territory in 1900 before achieving statehood. Alaska: was acquired in 1867, and was organized as the District of Alaska in 1884 and later as the Alaska Territory in 1912, before becoming a state in 1959.    
   

3. Library of Congress : The Foraker Act (Organic Act of 1900) https://guides.loc.gov/world-of- 1898/foraker-act    
   

4. The author recommends reading Arnold R. Highfield’s section on the Organic Acts for more incite: The Cultural History of the American Virgin Islands and the Danish West Indies: A Companion Guide pp 446-447 Arnold R. Highfield published in 2018 by Antilles Press, Christiansted, USVI. ISBN 978-0-916611-22-4  Also recommended Developments in the Law: THE U.S. TERRITORIES The Harvard Law Review, Vol. 130, No. 6 (APRIL 2017), pp. 1616-1727 The Harvard Law Review Association https://www.jstor.org/stable/44865701 10-10-2025   
   

5. SCOTUS Downes v. Bidwell, 182 U.S. 244 (1901) The Court established the "territorial 5incorporation doctrine," finding that Congress has the authority to govern newly obtained territories with broad power, unbound by all constitutional restrictions. The court specifically ruled that the Constitution's Uniformity Clause regarding duties and tariffs did not apply to the new territory of Puerto Rico.    
   

6. SCOTUS Balzac v. Porto Rico, 258 U.S. 298 (1922) The unanimous opinion of the Court argued that although the Jones Act had granted citizenship to Puerto Ricans, it had not incorporated Puerto Rico into the Union. Although Puerto Rico had been under the control of the United States since the end of the Spanish–American War in 1898, the territory had not been designated for ultimate statehood, and Congress could determine which parts of the Constitution would apply.  
   

7. The Special Committee on the Situation with regard to the Implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples is also known as the Special Committee on Decolonization, or C-24. The C-24 was established in 1961 by the General Assembly (GA), as its subsidiary organ devoted to the issue of decolonization, pursuant to GA resolution 1654 (XVI) of 27 November 1961. The Committee has found US unincorporated territories to be modern-day colonies due to their lack of voting rights and unequal treatment. https://www.un.org/dppa/decolonization/nsgt 
   

8. Non-citizen nationals from American Samoa are not, unless they reside within the fifty states; 8 they can enlist voluntarily and do so in disproportionately higher numbers. 
   

9. Guam: around 150,000, USVI approximately 100,000, American Samoa approximately 50,000 Northern Marianas around 50,000