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Centro de Estudios Puertorriqueiios
CENTRO JOURNAL VOLUME XXV • NUMBER I •SPRING 2013
EDITOR
Xavier F. Torti, City University of New York-Lehman College
P U BLICATIONS COORDINATOR
Noraliz Ruiz Caraballo
ADVISORY BOARD
Frances Aparicio, Northwestern University Luis Aponte Pares, University of Massachusetts-Boston
Cesar J. Ayala, University of California-Los Angeles Efrain Barradas, University of Florida-Gainesville
Deborah Berman Santana, Mills College Arnaldo Cruz-Malave, Fordham University
Jorge Duany, Florida International University Juan Flores, New York University
Nilda Flores Gonzalez, University of Illinois-Chicago H umberto Garcia Muiiiz, Universidad de Puerto Rico-Rio Piedras
Edwin Melendez, City University of New York-Hunter College Sonia Nieto, University of Massachusetts-Amherst
Francisco Scarano, University of Wisconsin-Madison Anthony Stevens-Arroyo, City University of New York-Brooklyn College
Carmen T. Whalen, Williams College Ana Celia Zen tell a, University of California-San Diego
BOOK REVIEW EDITORS
Elizabeth Garcia, Connecticut College Felipe Pimentel, City University of New York- H ostos Community College
EDITORIAL ASSISTANCE
J onathan Goodman-Copy Editor
Elizabeth K. Allen-Copy Editor
ART DIRECTION
Kenneth Kaiser
ISSN: 1538-6279 (Print); ISSN: 2163-2960 (Online) ISBN-13: 978-1-878483-71-3; ISBN-IO: 1-878483-71-4 t 20l3 Centro de Estudios Puertorriqueiios H unter College / City University of New York 695 Park Avenue, E-1429, New York, NY 10065 212.772.5690 • Fax 212.650.3673 • http://centropr.hunter.cuny.edu
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CENTRO Journal of the Center fo r Puerto Rican Studies
VOLUME XXV • NUMBER I • SPR ING 2013
Special Section: Puerto Rico, the United States and the Making of a Bounded Citizenship
GUEST EDITOR: Pedro Caban
-PAGE 4-
The Puerto Rican Colonial Matrix: The Etiology of Citizenship-An Introduction
P EDRO CABAN
-PAGE 22-
Confronting a Colonial Legacy: Asserting Puerto Rican Identity by Legally Renouncing U.S. Citizenship
JACQUELINE N. FONT-GUZMAN
-PAGE 50-
Extending Cit izenship to Puerto Rico: Three Tradit ions of Inclusive Exclusion
CHARLES R. VENATOR-SANTIAGO
-PAGE 76-
The Bordering of America: Colonialism and Citizenship in the Philippines and Puerto Rico
RICK BALDOZ AND CESAR AYALA
-PAGE 106-
Citizenship and the Alien Excl usion in the Insular Cases: Puerto Ricans in the Periphery of American Empire
EDGARDO MELENDEZ
-PAGE 146-
From Freedom Fighters to Pat riots: The Successful Campaign to Release the FALN Political Prisoners, 1980-1999
MARGARET POWER
- PAGE 180 -
eoJiberal ism and Oriental ism in Puerto Rico: Walter Mercado's Queer Spiritual Capital
TACE HEDRICK
-PAGE2 10 -
Me)ancholic Readings, Precarious Authority: The Work of Mourning in Edgardo Rodriguez Julia's Funereal Chronicles
JASON CORTES
-PAGE 232-
Book Reviews
- PAGE 256-Acknow)edgementS
50 CENTRO JOURNAL
VOLUME XXV • NUMBER I • SPRING 2013
Extend ing Citizenship to Puerto Rico: Three Traditions of Inclusive Exclusion CHARLES R. VENATOR·SANTIAGO
ABSTRACT
This article examines the legal history of the extension of United States citizenship to Puerto Rico between 1898 and 1940. During this period, Congress enacted a series of laws that extended three different types of citizenship to Puerto Rico, namely a Puerto Rican citizenship, a derivative form of parental or jus sanguinis citizenship, and a statutory form ofjus soli or birthright citizenship. This article argues that law and policymakers developed the latter citizenship laws and policies in order to affirm the inclusive exclusion of Puerto Ricans within the nascent U.S. global empire. [Key Words: Puerto Rico, citizenship,jus soli, empire, imperialism, colonialism, Nationality Act of 1940]
The author([email protected]), is an assistant professor with a joint appoinrment in
the Department of Political Science and El Institum: Institute for Latino/ a, Caribbean and Latin American Studies, University of Connecticut. He is current President-Elect of the Puerto Rican Studies Association and a Board Member of LatCrit. He is the author of Puerto Rico and the Origins of U.S. Global Empire: The Disembodied Shade (Routledge, forthcoming) and edits the publications of the LatCrit South-North Exchange on Theory, Culture and the Law.
Extending Clbzensh1p lo Puerto RICO: Three Tradrtions of lnclUSNe ExclUSIOf'I • Charles R. Venator-Santiago 51
THE UNITED STATES DEVELOPED NEW TERRITORIAL AND CITIZENSHIP POLICIES TO
GOVERN PUERTO RICO AND THE OTHER TERRITORIES ANNEXED FOLLOWING THE
SPANISH-AMERICAN WAR OF 1898. The new territorial policy ascribed an unincorpo
rated territorial status on Puerto Rico enabling the U.S. administrative state apparatus
to selectively determine when to treat the island as a foreign country for constitutional
purposes. For more than a century, the U.S. has treated Puerto Rico as a foreign loca
tion for the purposes of the Citizenship Clause of the Fourteenth Amendment (U.S.
Constitution, 14th Amend., cl. I). Accordingly, some U.S. law and policymakers argue,
birth in Puerto Rico is tantamount to birth outside of the U.S. But this view is contra
dicted by a series oflaws enacted by Congress since 1898 which confer three different
types of citizenships on the island-born residents of Puerto Rico, namely: 1) a Puerto
Rican citizenship conferring a non-alien nationality (1900-present); 2) a natural
ized citizenship conferring a parental or derivative form of jus sanguinis citizenship
(1906-1940) ; 3) and a statutory form of jus soli or birthright citizenship (1941-present).
However, while these citizenship laws have affirmed the inclusion of Puerto Ricans
within the U.S. global empire, U.S. legal actors have consistently excluded Puerto
Rican-born citizens from the scope of the Fourteenth Amendment's Citizenship
Clause, a precondition for constitutional equality.
Drawing on Ophir, Givoni, and Hanafi's (2009) concept of inclusive exclusion, I argue
that the laws extending U.S. citizenship to Puerto Rico have consistently affirmed the
inclusion of island-born Puerto Ricans within the U.S. global empire, while simultane
ously excluding these citizens from the possibility of acquiring equal constitutional
membership within the polity. This article explains the latter argument through an
examination of the key legal debates shaping the extension of U.S. citizenship laws to
Puerto Rico between 1898 and 1900. Part 1 begins by providing an overview of the prec
edents shaping the acquisition of U.S. territorial citizenship in 1898. The main objective
of this part is to provide the reader with a short outline of the core precedents that served
as a backdrop to the debates over the status of Puerto Rico and its inhabitants in 1898.
Part 2 examines the key legal debates that shaped the contours of the extension of three
types of citizenship to Puerto Rico. More specifically, the article discusses the enactment
of citizenship laws and the ensuing legal debates framing the membership status of
Puerto Rican-born citizens. This article concludes with a brief outline of the prevailing
52 CENTRO JOURNAL • VOLUME XXV • NUMBER I • 2013
legal debates over the current status of Puerto Rican-born citizens. My overall goal is to
provide a map of the legal history of the extension of citizenship to Puerto Rico in order
to open new and more critical avenues for future research on questions that require a
clear understanding of the citizenship status of Puerto Ricans.
Part 1: U.S. Territorial Citizenship In 1898
Since its inception, the U.S. simultaneously developed both a colonialist and an
imperialist expansionist tradition with corresponding territorial and citizenship
policies that incorporated national citizenship laws. The colonialist tradition was
premised on the annexation territories that could be settled by white citizens and
subsequently admitted as new states of the Union. Territories subject to colonization
were governed as a part of the U.S. for constitutional and citizenship purposes. In
contrast, the imperialist tradition was premised on the mere occupation of territories.
Territories subject to imperialist occupation were selectively treated as locations
situated outside of the U.S. for constitutional and citizenship purposes. In 1898, U.S.
law and policymakers drew upon both traditions in order to establish constitutional
baselines that could inform the development of a new territorial policy to govern
Puerto Rico and the other territories acquired during the Spanish-American War.
Specifically, law and policymakers were interested in developing a new expansionist
policy that would enable the U.S. to permanently annex territories without being
bound to create new states or incorporate the non-Anglo-Saxon inhabitants of these
territories into the U.S.
What is important to note is that by 1898 it was well established that persons born in
the U.S. acquired a right to a constitutional form ofjus soli or birthright citizenship.
In 1898, eligible persons born in the U.S. could acquire a national citizenship in at
least two ways. Most persons born in the U.S. acquired a jus soli or birthright citizen
ship under the terms of the Citizenship Clause of the Fourteenth Amendment (U.S.
Constitution, 14th Amend., cl. 1). Prevailing interpretations of the Citizenship Clause,
however, excluded Native Americans and the children of ambassadors and foreign
sovereigns from the possibility of acquiring a U.S. citizenship at birth (United States
v. Wong Kim Ark, 169 U.S. 649 (1898)). However, as I w ill discuss in detail below,
Congress possessed the power to enact special legislation enabling the individual or
collective naturalization of Native Americans (Getches, Wilkinson, and Williams 1998)
Extending C1bzensh1p to Puerto Rico: Three TradrtlOllS of lnclUSM! Exch.Jslon •Charles R. Venator-Sanhago 53
and the children of foreign officials. What is important to note is that by 1898 it was
well established that persons born in the U.S. acquired a right to a constitutional form
of jus soli or birthright citizenship.
Alternatively, racially eligible persons born outside of the U.S. could acquire citizen
ship through a process of naturalization in at least four ways. Between 1789 and 1952, U.S.
immigration laws limited the naturalization of "aliens" to persons deemed to be either
white or of African heritage (Gettys 1934: 36-7; Haney Lopez 1996). Drawing on its con
stitutional power to develop uniform rules of naturalization, Congress enacted legislation
providing for at least four types of naturalization processes (U.S. Constitution, Art. I, §8, cl. 4 or 14th Amend., cl. 1). For example, immigrants could undergo an individual process of
naturalization or in some instance lawmakers could enact a personal naturalization stat
ute. Congress could also enact legislation that collectively naturalized a group of people.
In addition, the U.S. embraced the doctrine of coverture and established that marriage
was tantamount to a form of naturalization (Revised Statutes, §1994). This meant that
eligible aliens who married U.S. citizens would acquire their spouses' citizenship.
Congress also recognized the right to a derivative or parental form of jus sanguinis
citizenship. While legal actors and scholars alike disagree on the constitutional source
of this type of citizenship, since 1790 Congress has enacted legislation enabling a child
of a citizen born outside of the U.S. to acquire citizenship at birth so long as his or her
father had previously resided in the country (Weisenfeld 1975). Beginning in 1898,
citizens residing outside of the U.S. were able to transmit a parental form of jus san
guinis (blood right) citizenship to their children born outside of the country (Revised
Statutes, §1993). For the purposes of this article, however, I will treat this form of citi
zenship as a type of naturalization.
In 1898, U.S. colonialism could be differentiated from imperialism in five impor
tant ways. First, whereas the colonialist tradition was premised on the annexation of
territories, the imperialist tradition sought to acquire new territories through mere
occupation. Second, whereas the colonialist tradition governed annexed territories as
a constitutional part of the definition of the U.S., the imperialist tradition selectively
treated occupied territories as locations situated outside of the jurisdiction of the
U.S. Third, while U.S. colonialism was anchored on interpretations of the Territories
(U.S. Constitution, Art. IV, §3, cl. 2) and Admissions (U.S. Constitution, Art. IV, §3, cl.
1) Clauses of the Constitution, U.S. imperialism was grounded on other constitutional
provisions that granted Congress and the President more expansive powers. Fourth,
while the bill of rights extended to territories subject to colonial annexation, the impe
rialist tradition recognized the power of the administrative state apparatus to deter
mine which rights could be withheld or extended to an occupied territory. Finally,
54' CENTRO JOURNAL • VOLUME XXV • NUMBER I • 2013
whereas the colonialist tradition recognized that birth in a colonial territory was
tantamount to birth in the U.S., the imperialist tradition equated birth in an occupied
territory to birth outside of the country. Stated differently, in 1898, whereas eligible
persons born in a colonial territory acquired a Fourteenth Amendment or constitu
tional citizenship at birth, persons born in an occupied territory could only acquire a
U.S. citizenship through naturalization. To be sure, by 1898, both traditions counted
with a clear body of constitutional precedents. U.S. colonialism was premised upon the annexation of new territories that could
be settled by white citizens and subsequently organized for the purposes of admitting
new states (U.S. Constitution, Art. IV, §3, cl. l; Dred Scott v. Sandford, 60 U.S. 393, at
447-448 [1856); Willoughby 1995) . Since its inception, the U.S. conquered, purchased,
or simply annexed new territories that could be settled by white citizens and orga
nized into colonies. During the colonial stage, the President would administer the
territory on behalf of Congress and enable its inhabitants to organize a local govern
ment that could subsequently develop into a state government (Grupo 1984; Sheridan
1985). Between 1789 and 1898, the U.S. annexed sufficient territory to create and sub
sequently admit thirty-seven new states into the Union. While all territories annexed
after founding of the U.S. and before 1898 have since been organized and admitted
into states of the Union, no territory annexed after 1898 has been granted statehood.1
Colonial territories were governed as parts of the U.S. for constitutional purposes.
To be sure, by 1820 in Loughborough v. Blake the Supreme Court established that:
Does this term [colonial territories] designate the whole, or any particular portion of
the American empire? Certainly this question can admit but one answer. It Is the name
given to our great republic, which Is compoHd of States and territories. The District
of Columbia, or the territory west of the Missouri, Is not less within the United States,
than Maryland or Pennsylvania; and It Is not less necessary, on the principles of our
constitution, that uniformity In the Imposition of Imposts, duties, and excises, should be
observe In the one, than In the other. (18 U.S. 317, at 319-emphasls added)
Stated differently, in 1898 colonial territories were governed as part of the definition
of the U.S. and all constitutional provisions that were not locally inapplicable extended
to these localities in the same way that they would extend to a state of the Union. In
1898, the prevailing constitutional definition of the U.S. included states and territories
subject to colonization. U.S. colonialism recognized that Congress wielded a constitutional power to govern ter
ritories during the colonial stage and subsequently admit these territories as states of the
Extending Clt1zensh1p to Puerto Rico: Three Trad1t10ns of lnclUSlve Exclusion • Charles R. Venator·Sant1aoo 55
Union on an equal footing with the original thirteen. As noted above, the power to govern
colonies was grounded in the Territories Clause, which empowered Congress to make all
needful rules and regulations for these types of territories, and the Admissions Clause,
which authorized Congress to admit new states. However, while the Supreme Court had
repeatedly recognized the enhanced power of Congress to rule the "states-in-the-making,"
the Court had also established that congressional power over the territories was limited
by the Bill of Rights. Thus, while citizen settlers lost their national political power (i.e., the
right to participate in Federal elections and to elect national representatives) while they
resided in a colonial territory, citizens were still entitled to all of the protections afforded
by the Bill of Rights. This meant that Congress could not pass legislation for a colonial ter
ritory that violated a citizen's individual liberties and civil rights (American Insurance Co.
v. Canter, 26 U.S. 511 (1828); Dred Scott v. Sandford, 60 U.S. 393 [1856D. To this extent, even
though citizens acquired a subordinated status, they possessed a constitutional power to
invoke the Bill of Rights in order to curtail some dimensions of Congress' power.
Inhabitants of colonial territories could acquire U.S. citizenship in at least four
ways. Prior to 1898, all treaties of territorial annexation contained an article providing
for the collective naturalization or promising to do so at some future time (Gettys 1934:
144-5). Congress could also enact a special statute providing for the collective natural
ization of the eligible residents of a territory (Revised Statutes, §1995). In addition, by
1874 Congress had extended the Constitution and all laws that were not locally inap
plicable to the colonial territories, including the Fourteenth Amendment and the right
to jus soli or birthright citizenship (Revised Statutes, §1891) . Stated differently, by 1898,
birth in a colonial territory was tantamount to birth in the U.S. (Bickel 1973) . Finally,
in 1892, the Supreme Court established in Boyd v. Thayer that eligible "alien" residents
of a colonial territory were collectively naturalized when a territory was admitted into
the Union as a new state (143 U.S. 135, at 170). Accordingly, the process of admission of
a new state was equal to the admission of a people.
Unlike the colonialist tradition, U.S. imperialism was premised upon the occupa
tion of territories for a wide range of purposes other than to admit new states. By 1898,
the U.S. had occupied territories for military, strategic, and commercial purposes both
inside (intraterritorial) and outside (extraterritorial) its boundaries (Raustiala 2009).
Although examples abound, the experiences of Native Americans (intraterritorial) and
Mexicans (extraterritorial) provided key imperialist legal precedents. Notwithstanding
the complexities of the experiences of Native Americans, in 1898, the U.S. occupied
Domestic Dependent Nations, reservations, and other enclaves inhabited by Native
Americans without seeking to create new states. To this extent, my contention is that
the legal precedents established by the occupation of Native American territories are
56 CENTRO JOURNAL • VOLUME XXV • NUMBER I • 2013
more consistent with an imperialist tradition than with a colonialist tradition. In the
case of Mexicans, the precedents established by the occupation of the Port of Tampico
during the War of 1846-48 would subsequently shape a more malleable understand
ing of U.S. extraterritoriality, enabling law and policymakers to selectively treat occu
pied territories as foreign localities in a domestic or constitutional sense.
It is also important to note that in some instances the U.S. used both an imperi
alist and a colonialist tradition to govern acquired territories. For example, in the
case of Mexico, the U.S. used an imperialist logic to legitimize the occupation of the
Port of Tampico during the War of 1846-48, while subsequently annexing (and later
purchasing) the northern part of Mexico. In the latter case, the U.S. colonized and
subsequently admitted the territories that formed New Mexico, Arizona, Nevada,
Colorado, and California. Likewise, the U.S. first occupied the Republic of Hawaii in
1893 and governed it as an occupied territory until 1898. However, in 1898, Congress
enacted legislation that formally annexed Hawaii and governed the island as a colonial
territory until 1959, the year that the former republic was admitted as a state of the
Union. Notwithstanding the complex history of territorial acquisition, it is important
to recognize that in each instance Congress enacted legislation that explicitly defined
the territory's status as either a colony or a mere occupied territory.
The imperialist tradition established that occupied territories could be selectively
treated as locations situated outside of the U.S. for constitutional purposes. In the case
of Native American territories, the Supreme Court established that while tribal lands
were located within the geography of the U.S., they could be governed as "wards"
situated outside of the jurisdiction of the U.S. (United States v. Kagama, 118 U.S. 375,
at 380 [1886]; Norgren 1996). In contrast, by 1850, the Supreme Court had established
that externally occupied territories could be governed as both foreign locations for
constitutional purposes and domestic possessions for international interests. More
precisely, in Fleming v. Page, a case arising from the occupation of the Port of Tampico,
Mexico, Chief Justice Taney wrote:
As regarded by all other nations, It [the port of Tampico, Mexico] was a part of the
United States, and belonged to them exclusively as th• territory Included In our
established boundaries .... But yet It was not a part of this Union. For every nation
which acquires territory by treaty or conquest holds It according to Its own Institutions
and laws. (50 U.S. 603, at 615)
U.S. imperialism anchored its authority on different constitutional provisions other
than the Territories and Admissions Clauses. For example, imperialism legitimized the
Extending C1t1zensh1p to Puerto Rico: Three Traditions of Inclusive ExcluSIOO • Charles R. Venator·Sanbago 57
military occupation of territories on the Commander-in-Chief Clause (U.S. Constitution,
Article 2, §2, cl. 1) or the constitutional provision authorizing the President to command
the armed forces to occupy internal (e.g., the Civil War South) or external (e.g., Mexico)
territories. In the case of territories occupied for commercial interests (e.g., the Guano
Islands), imperialists have looked to the Commerce Clause as a source of authority (U.S.
Constitution, Article l, §8, cl. 3). In contrast, imperialists have justified the occupation
of Native American territories by invoking constitutional provisions that contain exclu
sions targeting "Indians.'' For example, the Commerce Clause contains language that
excludes "Indians not taxed" and opens the door for the legal actors to pass discrimina
tory legislation against Native American territories. Historically, both the President and
Congress invoked the limited scope of these provisions in order to justify their plenary
power over occupied territories and to curtail the extension of constitutional rights to
the inhabitants of these territories (Deloria and Wilkins 1999).
Finally, the imperialist tradition treated both internally and externally occupied
territories as locations situated outside of the U.S. for citizenship purposes. In 1886,
the Supreme Court established in Elk v. Wilkins that Native Americans born in the
U.S. could not acquire a U.S. citizenship at birth under the terms of the Fourteenth
Amendment (112 U.S. 94). Native Americans, the Court reasoned, owed their alle
giance to a tribe situated outside of the jurisdiction of the U.S. and could only acquire
U.S. citizenship through a special congressional statute. In contrast, by 1898, the
Supreme Court had established that birth in an occupied territory was tantamount to
birth outside of the U.S. (Inglis v. Sailor's Snug Harbor, 3 Peters 99 [1830]; Wong Kim
Ark v. United States, 169 U.S. 649, at 655 [1898]; and Gettys 1934: 21).
In sum, by 1898, the U.S. had developed two clear territorial citizenship policies.
Colonial territories were governed as constitutional parts of the U.S. and persons born
in these territories were entitled to acquire the same birthright citizenship available to
eligible persons born in any state of the Union. Alternatively, occupied territories were
treated as locations situated outside U.S. jurisdiction and birth in these territories was
tantamount to birth outside of the country. Persons born in occupied territories could
only acquire U.S. citizenship through naturalization. Following the Spanish-American
War of 1898, both anti-imperialists and imperialist legal actors and scholars used the
latter interpretations to establish competing baselines to debate the future status of
Puerto Rico and its inhabitants.
Part 2: Puerto Rico, Citizenship, and the U.S. Global Empire
U.S. law and policymakers began to conceptualize a new type of global expansionism
during the 1880s (LaFeber 1986; Shulman 1995). The new form of global expansionism
58 CENTRO JOURNAL • VOLUME XXV • NUMBER I • 2013
was premised upon the permanent annexation of land that could house strategically
situated military bases and naval coaling stations throughout the world without binding
Congress to admit new states (Mahan 1898; Rodriguez Beruff 2007). However, while
advocates of global expansionism were keen on annexing new territories, they were
not interested in naturalizing the non-white inhabitants of these territories. In order
to reconcile these competing interests, global expansionists invented a new territorial
status with corresponding citizenship policies that combined interpretations of
colonialist and imperialist precedents. The earliest articulations of the new territorial policy were introduced during
the peace negotiations and the ensuing Treaty of Paris of 1898 (S. Doc. 61-357, 1910).
More precisely, Article IX of the Treaty ascribed a plenary power to Congress to
determine the future status of the island and its inhabitants. This provision marked a
radical departure from prior treaties of territorial annexation, which treated acquired
territories as a part of the U.S. upon their annexation. In contrast with other like
provisions included in prior annexation treaties, Article IX placed Puerto Rico in a
legal limbo until Congress enacted legislation to govern the island. During the Senate
ratification debates of the Treaty of Paris, Senator Orville H. Platt (R-CT) explained
that the second clause of Article IX enabled Congress to govern Puerto Rico without
"incorporating" the island's inhabitants into the Union (32 Cong. Rec. 296). Following
the cessation of hostilities on August 1898, President McKinley authorized the use of a
military dictatorship to rule Puerto Rico until Congress enacted an organic or territo
rial act providing a civil government for the island (Rossiter 2004; H. Doc. 56-2, 1902).
The Foraker Act created a new territorial status affirming the U.S. annexation of Puerto Rico while simultaneously enabling law and policymakers to selectively govern the
island as a foreign country for constitutional purposes.
In 1900, Congress enacted the Foraker Act, an organic or territorial act replacing
the military regime with a civilian government and institutionalizing the new territo
rial status (31 Stat. 77; Gould 1969). The Foraker Act created a new territorial status
affirming the U.S. annexation of Puerto Rico while simultaneously enabling law and
policymakers to selectively govern the island as a foreign country for constitutional
purposes. To be sure, as Senator John C. Spooner (R-WI) explained during the rel
evant congressional debates, the Foraker Act would establish that "(t)erritory belong
ing to the United States, as I think Puerto Rico and the Philippine Archipelago do,
Extend1no Citizenship to Puerto Rico: Three Trad1t10ns of lnclUSlve ExcluS1on • Charles R. Venator-Sant1aoo 59
become a part of the United States in the international sense, while not being a part of
the United States in the constitutional sense" (36 Cong. Rec. 3629-emphasis added).
The Foraker Act institutionalized this ideology in Section 3, which authorized the
imposition of fifteen percent Dingley Act of 1897 (30 Stat 151) tariff on all merchandise
trafficked between Puerto Rico and the U.S. and violating prevailing interpretations of
the Uniformity Clause (U.S. Constitution, Art. 1, §8, cl. 1). To be sure, the Uniformity
Clause barred the imposition of tariffs, duties, and other taxes on merchandise that
was bought and sold within the U.S. in order to preserve a more stable financial envi
ronment among states and territories.
The Supreme Court developed a new territorial doctrine that provided constitu
tional cover for a tempered interpretation of the nascent ideology of global expansion
ism in a series of rulings generally known as the Insular Cases (1901-1922) (Burnett
and Marshall 2001; Torruella 1988; Rivera Ramos 2007). However, the core premises of
the new territorial doctrine were first articulated in the concurring opinion of Justice
Edward D. White in Downes v. Bidwell (182 U.S. 244 [1901D. In Downes, a plural major
ity of justices (5-4) affirmed the constitutionality of the Foraker Act's taxes on mer
chandise trafficked between Puerto Rico and the U.S. Writing for the majority, Justice
Henry B. Brown invoked the imperialist precedent established in Fleming to interpret
Congress' power under the Territories Clause to treat Puerto Rico as a foreign country
for the purposes of the Uniformity Clause. Justice Brown's opinion sought to establish
that the Constitution did not limit Congress' (imperialist) power to govern annexed
territories such as Puerto Rico as foreign countries. Alternatively, while Justice White
concurred that Congress possessed a power to govern Puerto Rico as a foreign terri
tory in a domestic of constitutional sense, this power was contingent on whether a ter
ritory was incorporated or unincorporated (Downes, at 341-42). Accordingly, Congress
was bound by colonialist precedents to govern incorporated territories as states-in
the-making. However, Justice White reasoned, Congress possessed a power to select
which constitutional provisions could be withheld or extended to unincorporated
territories such as Puerto Rico so long as the "fundamental" or personal rights of the
island's inhabitants were protected (Downes, at 298- 99). In other words, while Justice
White's rationale accepted the imperialist notion that Congress could treat annexed unincorporated territories as foreign locations for constitutional purposes, the power
of Congress over unincorporated territories was tempered by the "fundamental" rights
of its inhabitants.
In sum, and for the purposes of my argument, the resulting doctrine of territorial
"incorporation," combined features from both the colonial ist and imperialist traditions
giving rise to a new type of territorial policy. First, the U.S. could now hold annexed
60 CENTRO JOURNAL • VOLUME XXV • NUMBER I • 2013
territories for an indefinite period of time without being bound to grant statehood to
the territory in question. Second, the U.S. was now able to selectively govern annexed
territories as foreign locations for constitutional purposes rather than being bound to
treating them as a part of the U.S. Third, whereas the colonialist interpretation of the
Territories Clause established that the inhabitants of the territories were entitled to
the protections of the Bill of Rights, thus curtailing the power of Congress, the new
interpretation gave Congress the power to determine which rights could be with
held or extended to an unincorporated territory. In a sense, the new doctrine used an
imperialist rather than a colonialist interpretation of the Territories Clause to enable
the U.S. to develop policies that could be adjusted to the local realities of an unincorpo
rated territory. The doctrine of territorial incorporation enabled the U.S. to selectively
affirm the political inclusion of Puerto Rico within the nascent global empire, while
simultaneously excluding the island from an equal status within the polity.
In addition, the U.S. has since adopted two citizenship policies to govern the inhab
itants of unincorporated territories. In 1927, Congress enacted legislation conferring
a Fourteenth Amendment right to jus soli or birthright citizenship to all persons
born in the Virgin Islands (S. Rep. No. 69-650, 1926, 2). Since then, all persons born
in the Virgin Islands have acquired a constitutional right to U.S. citizenship at birth.
Alternatively, lawmakers developed a different citizenship policy for Puerto Rico and
the other unincorporated territories annexed since 1898 premised on the conferral of
statutory rather than constitutional citizenship. In the case of Puerto Rico, Congress
has since enacted legislation conferring three different types of statutory citizenship
on persons born in the island: 1) a Puerto Rican citizenship tantamount to non-alien
nationality; 2) a naturalized citizenship conferring a derivative form of parental or jus
sanguinis citizenship (1906- 1940); and 3) a statutory form of jus soli citizenship con
ferring a form of birthright citizenship (1941-present). However, whereas Congress
was willing to extend a statutory form of birthright citizenship to Puerto Rico, law
makers have consistently refused to extend the Citizenship Clause to the island and in
large measure limiting the ability of Puerto Rican-born citizens to acquire a statutory
citizenship. Stated differently, while Congress' extension of citizenship to Puerto Rico
affirmed the inclusion of Puerto Ricans within the U.S. global empire, lawmakers'
refusal to extend the Fourteenth Amendment to the island has affirmed the constitu
tional exclusion of island-born Puerto Ricans.
Puerto Rican Citizenship The notion of a Puerto Rican citizenship was first introduced in Article IX of the
Treaty of Paris as a measure to annex Puerto Rico without annexing either an island
Extending C1t1zensh1p to Puerto Rico: Three Trad1t10ns of lnclUS1ve Exclusion • Charles R. Venator·Santiaoo 61
primari ly inhabited by Spanish subjects or naturalizing its non-Anglo-Saxon residents. The first clause of Article IX reads as follows:
Spanish subjects, native to the [lberlan] Penlnsula, residing In the territory over which
Spain by the present treaty relinquishes or cedes her sovereignty, may remain In such
territory or may remove therefrom ... beln11 subject In respect thereof to such laws ., arw
applicable to forel11nen. In case they remain In the territory they may preserve their
allegiance to the Crown of Spain by making, before a court of record, within a year from
the date of the exchange of ratifications of this treaty, a declaratlon of their decision
to preserve such allegiance; In default of which de<laratlon they shall be held to have
renounce It and to have adopted the natlonallty of the territory In which they may
reside. (S. Doc. 61·357, 1910, 2: 1693-emphasls added)
To be sure, the language of Article IX established an artificial difference between
Spanish-born and island or Puerto Rican-born Spanish subjects. Whereas Spanish
born subjects were allowed to retain their Spanish citizenship, while maintaining all
property rights while residing in Puerto Rico, island-born Spaniards were ascribed
a Puerto Rican nationality to nowhere. More importantly, as I will discuss below,
Spanish-born Spaniards were afforded the rights of aliens in Puerto Rico, rights that
were not available to Puerto Ricans. Read in a historical context, the language of
Article IX represented a departure from all prior treaties of territorial annexation.
Whereas Spanish-born subjects were allowed to retain their Spanish citizenship, while maintaining all property rights while residing in Puerto Rico, island-born Spaniards were ascribed a Puerto Rican nationality to nowhere.
The citizenship provision of Article IX also created two problems of legal con
struction. First, Article IX unilaterally denaturalized island-born subjects and barred
them from the possibility of acquiring a more egalitarian citizenship. Not only were
Puerto Rican-born subjects barred from retaining their Spanish citizenship, but they
were also ascribed a nationality that precluded the bearers from complying with the
requirements of prevailing U.S. immigration and naturalization laws. At the time
"aliens" seeking to acquire U.S. citizenship through naturalization were required t~ renounce their allegiance to a sovereign before they were able to begin the U.S. natu
ralization process. The Puerto Rican nationality confined its bearer to an anomalous
62 CENTRO JOURNAL • VOLUME XXV • NUMBER I • 2013
citizenship status preventing him or her from acquiring a U.S. citizenship through nat
uralization. In addition, the language of Article IX did not clarify whether spouses and
children acquired the citizenship status of Spanish citizens or Puerto Ricans. In other
words, Article IX did not clarify whether Spanish wives and their children acquired
the citizenship of their Puerto Rican-born husbands, or whether the opposite was true
(Re Bonnet y Jaspard, 2 PR Fed. 70 [1906D. Suffice it to say that Article IX introduced
a new artificial membership/citizenship hierarchy among the residents of Puerto Rico
and within the nascent U.S. global empire.
1\vo years later, Congress enacted the Foraker Act and institutionalized the mem
bership provision of Article IX. Section 7 of the Foraker Act invented a Puerto Rican
citizenship that reproduced the same logic articulated in Article IX. Congress also
neglected to reconcile the Puerto Rican citizenship with prevailing immigration laws
and continued to reproduce the same exclusions created by Article IX. Like Article IX,
Section 7 confined Puerto Ricans to a separate and unequal citizenship status. More
importantly, this was the first time in U.S. history that Congress refused to naturalize
the inhabitants of an annexed territory.
Problems arising from the legal construction of Article IX and Section 7 were rou
tinely debated in the Federal district court for Puerto Rico. For example, district court
judges often found themselves having to determine the impact of these provisions
on the status of women married to Puerto Ricans and other aliens (e.g., Martinez de Hernandez v. Casanas, 2 PR Fed. 519 [1907)). In some instances, the court was tasked
with determining the status of the children of mixed marriages (e.g., Rodriguez y Pujals
v. Argueso y Flores, 2 PR Fed 517 [1907))). Other cases that routinely reached the court
addressed the right of children of mixed marriages, who were born and permanently
residing in Puerto Rico, to acquire U.S. citizenship through naturalization (e.g., Re
Bonnet y Jaspard). In most instances, however, the key legal question addressed by the
district court entailed ascertaining the citizenship status of a person or a corporation
in order to determine whether the court possessed the jurisdiction to hear relevant
cases. To be sure, the Federal district court in Puerto Rico was limited to hearing cases
between citizens from different or diverse jurisdictions (e.g., a Puerto Rican v. a U.S.
citizen, or a Spanish citizen, etc.). 1\vo Puerto Rican citizens, individual or corporate,
seeking to resolve a conflict were required to use local or Puerto Rican courts rather
than the Federal forum.
Federal agencies also found themselves grappling with problems arising from the
anomalous status of Puerto Ricans. For example, Puerto Rican merchants seeking
to travel and engage in international commerce found themselves unable to acquire
U.S. citizenship and by extension, a passport. In response, the Department of State
Extend1no Ot1zensh1p to Puerto Rico: Three Trad1t10ns of lnclUS1ve Exclusion • Charles R. Venator·Sanbago 63
petitioned Congress to enact legislation that would provide the residents of Puerto
Rico and other insular or unincorporated territories with a special passport (H. Rep.
No. 57-559, 1902). In 1902, Congress enacted the Insular Passports Act granting the
residents of Puerto Rico and other unincorporated territories access to special insular
passports (32 Stat. 386). While not every controversy resulted in the creation of cor
rective or remedial legislation, several cases resulted in administrative opinions that
generally equated Puerto Rican citizenship to U.S. nationality (Van Dyne 1904: 229) .
The Supreme Court also grappled with the question of the status of Puerto Rican
citizens on several occasions. As Efren Rivera Ramos notes, the Court first addressed
the status of Puerto Rican citizens in Downes, where Justice White established that
the residents of Puerto Rico could be governed as alien races until Congress enacted
legislation that incorporated the island. More specifically, Justice White argued that
Congress could either enact legislation that expressly incorporated Puerto Rico, or
implicitly by collectively naturalizing the residents of the island (Downes 182 U.S.
244, at 332- 33; Rivera Ramos 2007: 82). Rivera Ramos further argues that the Court
subsequently affirmed this interpretation in Rasmussen v. U.S., a Supreme Court ruling
establishing that the collective naturalization of the residents of Alaska had incorpo
rated this territory (197 U.S. 516 [1905]). In other words, while the Court linked Puerto
Rico's unincorporated status to the c itizenship status of Puerto Ricans, the Court also
established that the collective naturalization of the residents of an unincorporated ter
ritory was tantamount to the incorporation of the territory in question.
In the Gonzales ruling, the Supreme Court established that the Puerto Rican citizenship
conferred a non-alien national status on its bearer and ordered the release of Gonzalez.
Several years later, the Supreme Court in Gonzales v. Wi//iams took up the question
of the legal status of the Puerto Rican citizenship (192 U.S. 1 [1904D. The case arose
from a habeas corpus proceeding arising from the detention of Isabella Gonza!ez.2
Gonzalez, an "unmarried" woman was detained in New York by immigration officials
upon arrival on suspicion that she was an alien immigrant and would become a charge
for the state. Immigration officials ascribed an "alien" or immigrant status to Gonzalez,
detained her, and sought to deport her to Puerto Rico. In the Gonzales ruling, the
Supreme Court established that the Puerto Rican citizenship conferred a non-alien
national status on its bearer and ordered the release of Gonzalez. However, as several
scholars have noted, while the Court established that the Puerto Rican citizenship was
64 CENTRO JOURNAL • VOLUME XXV • NUMBER I • 2013
tantamount to a non-alien nationality, the justices refused to explain the nature of this
status (Duffy Burnett 2008; Erman 2008). The Gonzales ruling placed Puerto Rican
citizens in a status situated somewhere between aliens and U.S. citizens.
In sum, the Puerto Rican citizenship affirmed a form of inclusive exclusion that
confined its bearer to a separate and unequal status. Indeed, the Puerto Rican citizen
ship affirmed the inclusion of Puerto Ricans within the U.S. polity as non-alien nation
als entitled to unequal rights. Simultaneously, the Puerto Rican citizenship excluded
the residents of the island from equal membership in the U.S. polity or more spe
cifically from the ability to acquire U.S. citizenship. The language of Article IX of the
Treaty of Paris and Section 7 of the Foraker Act barred Puerto Ricans from acquiring
either U.S. or Spanish citizenship, ultimately confining this population to a member
ship status located in a legal limbo between aliens and citizens.
Naturalized Citizenship, 1898- 1940
Earlier scholarship suggests that the language of Article IX and Section 7 barred Puerto
Ricans from acquiring U.S. citizenship prior to 1906 (Bothwell 1971: 55; McGovney 1934:
603). Yet, available records from the National Archives and Records Administration
(NARA) suggest that between 1900 and 1906, Federal district court judges in ew
York were accepting petitions for naturalization by Puerto Ricans. In general, prior
to 1906, Federal district court judges handled naturalization petitions and possessed
wide latitude or discretion to determine who could acquire U.S. citizenship through
naturalization. It may be the case that some judges were willing to ignore the language
of Section 7 of the Foraker Act and simply allow some Puerto Ricans to undergo the
naturalization process as aliens. However, more research is needed to establish whether
persons born in Puerto Rico to Puerto Rican parents were able to successfully undergo
the naturalization process and acquire U.S. citizenship before 1906.
In 1906, Congress enacted the Bureau of Immigration and Naturalization Act
(BINA) enabling island-born Puerto Ricans to formally acquire U.S. citizenship
through naturalization (34 Stat. 596). BINA established that Puerto Ricans were
"racially qualified" to acquire U.S. citizenship and contained a residential exception
enabling Puerto Ricans to migrate to a state or incorporated territory in order to
undergo a process of individual naturalization (In re Gira/de, 226 F. 826, at 3 [1915]).
More specifically, Section 30 of the act provided:
That all the applicable provisions of the naturallzatlon laws of the United States shall
apply to and be held to authorize the admission of all persons not citizens who owe
permanent allegiance to the United States, and who may become residents of any
Extending Cit1zensh1p to Puerto RJCo: Three Traditions of Inclusive Exclusion • Charles R. Venator-Santiago 65
State or organized Territory of the United States, with the following modifications: The
applicant shall not be required to renounce alleglance to any foreign sovereignty; he
shall make his declaration of Intention to become a citizen of the United States at least
two years prior to his admission; and residence within the Jurisdiction of the United
States, owing such permanent allegiance, shall be regarded as residence within the
United States within the meaning of the five year's residency clause of the existing law.
(34 Stat. 607)
More importantly, BINA enabled island-born Puerto Ricans to acquire a constitutional
citizenship as a direct result of undergoing a naturalization process in the U.S. (states and/ or incorporated territory).
BINA, however, fostered at least two socio-legal forms of inclusive exclusion. On
the one hand, island-born Puerto Ricans were now able to acquire U.S. citizenship
through an individual process of naturalization, albeit in a world where Jim Crow laws
relegated Latinos to a separate and unequal social status. Simultaneously, in order to
acquire U.S. citizenship, island-born Puerto Ricans were required to migrate to a state
or incorporated territory and establish a two-year residency, a requirement that was
beyond the reach of the masses of working-class Puerto Ricans who wished to live on
the island. This of course is not to say that working-class Puerto Ricans who perma
nently migrated to the U.S. would not be able to acquire U.S. citizenship. In addition,
shortly after the enactment of BINA, the U.S. Department of Labor eliminated the
power of the Federal district court in Puerto Rico to grant naturalizations requiring
divorced or widowed Puerto Rican-born women who were previously married to an
alien and/ or the children of mixed marriages permanently residing in Puerto Rico to
migrate to the mainland in order to acquire U.S. citizenship through the naturalization
process (Re Hastrup, 11 PR Fed. 183, at 184 [1919]).
Almost a decade later, Congress enacted the Naval Services Appropriations Act of
1914 and included a special exception enabling eligible aliens who had served in any of
the naval branches of the armed forces to acquire a citizenship through naturalization
(38 Stat. 392). More specifically, the act provided that any "alien of the age of twenty
one years and upward who may under existing law, become a citizen of the United
States, who has served or may hereafter serve for one enlistment of not less than four
years in the United States Navy, Marine Corps, or Revenue-Cutter Service (Coast
Guard), and received an honorable discharge, could undergo the process of naturaliza
tion without having to previously declare an intention to acquire U.S. citizenship" (38
Stat at 395). This law effectively treated service on a naval ship as a sort of residency
in a state or incorporated territory. Soon after the law was enacted, Puerto Rican ser-
66 CENTRO JOURNAL • VOLUME X:XV • NUMBER I • 2013
vicemen began to invoke this provision in order to acquire U.S. citizenship. In 1915, a
Federal district court for the District of Maryland ruled in In re Gira/de that Puerto
Rican servicemen could use this provision to acquire U.S. citizenship and promptly
naturalized Mr. Socorro Giralde, a native of San Juan, Puerto Rico (226 F. 826, at 3).
While Judge Carter recognized that the Gonzales established that "for many pur
poses the inhabitants of Puerto Rico" were "not aliens," he argued that the word alien
could be "employed in different senses," enabling eligible Puerto Rican servicemen to
acquire U.S. citizenship (226 F. 826, at 1).
The Jones Act provided for the collective naturalization of the permanent residents of
Puerto Rico under the terms of Section 5.
Between 1900 and 1916, Congress debated twenty-one additional citizenship bills
for Puerto Rico culminating with the enactment of the Jones Act of 1917 (39 Stat.
951; Cabranes 1979). The Jones Act provided for the collective naturalization of the
permanent residents of Puerto Rico under the terms of Section 5. However, the first
clause of Section 5 also permitted Puerto Ricans to retain their Puerto Rican citizen
ship by making a declaration under oath of their intent before a district court. Only 288
Puerto Ricans rejected the U.S. citizenship and chose to remain Puerto Rican citizens
(Ex Parte Morales, 10 PR Fed. 395, at 397 [1918]; Bothwell Gonzalez 1979, 2: 310-3).
Moreover, Section 5 stipulated several deadlines during which time Puerto Ricans
residing outside of the island as well as alien residents (including the children of mixed
marriages) were required to declare their intention to avail themselves of the Jones Act
citizenship. In addition, Section 41 of the Jones Act reinstated the power of the Federal
district court in Puerto Rico to grant naturalizations to aliens residing in the island and
established that residency in Puerto Rico was tantamount to residence in the U.S. for
the purposes of naturalization laws (Re Semidey, 9 PR Fed. 535 [1917]).
Like prior citizenship laws, the Jones Act citizenship established a new form of
inclusive exclusion. Congress collectively naturalized the residents of Puerto Rico
without changing the territorial status of Puerto Rico. It followed that only the chil
dren of citizens could subsequently acquire U.S. citizenship at birth. Stated differ
ently, the Jones Act created a derivative or parental form of jus sanguinis citizenship
for Puerto Rico limiting the transmittal of U.S. citizenship to the children of citizens
(Botl1well Gonzalez 1980: 52). Additionally, Puerto Rican citizens residing abroad,
aliens, and the children of aliens permanently residing in Puerto Rico who failed to
Extending C1hzensh1p to Puerto Rico: Three Trad1t10ns of lnclUSll'e ExcluSIOll • Charles R. Venator-Sanbago 67
declare their intention to acquire U.S. citizenship within the allotted time frame found
themselves unable to acquire U.S. citizenship. In some instances, as the Federal district
court in Puerto Rico noted in 1917 in Re Bauring, working-class aliens or the children
of an alien father permanently residing in Puerto Rico were simply unable to afford
the costs entailed in traveling to San Juan to declare their intention to become U.S.
citizens (10 PR Fed. 107). In other instances, women who married aliens (which most
likely entailed marrying a next-door neighbor) after the enactment of the Jones Act
lost their citizenship as a result of the prevailing doctrine of coverture. Suffice it to
say that both the nature of the Jones Act citizenship and the time restrictions placed
on the ability of non-Puerto Rican citizens to declare their intention to acquire a U.S.
citizenship fostered a new set of exclusions that would haunt the courts and Congress for the better part of a quarter of a century.
Almost immediately after the passage of the Jones Act, judges in the local courts
began to assert that the citizenship and naturalization provisions of the new organic
act had incorporated or changed the territorial status of Puerto Rico. For example, on
April 5, 1917, the Federal district court in Puerto Rico ruled in In the Matter of Garffer
that the Jones Act declared "that residents in Puerto Rico shall, for naturalization pur
poses, be considered the same as residents elsewhere in the United States, which for
naturalization purposes, therefore, amounts to an incorporation of Porto Rico [sic] in
the United States" (9 PR Fed. 544, at 546). In addition, citing the precedents established
by the Supreme Court in Downes and Rassmussen, both the Federal district court and a
local municipal court respectively ruled in both In the Matter of Tapia (9 P.R. Fed. Rep.
452 [1917)) and Muratti v. Foote (25 D.P.R 568 [1917)) that the collective naturalization
provision of the Jones Act had implicitly incorporated Puerto Rico. However, within six
months, the Supreme Court reversed these findings in the People of Porto Rico v. Tapia (245 U.S. 639 [1918)) without providing an explanation for its reasoning and leaving
Pueno Ricans confused about their legal status within the U.S. global empire.
Several years later, Supreme Court Chief Justice William H. Taft, one of the original
members of the cabal advocating for a global expansionist foreign policy, seized the
opportunity to affirm the doctrine of territorial incorporation and the ensuing inclu
sive exclusion of naturalized Puerto Ricans residing in the island. In Balzac v. People of Porto Rico the Court addressed the question of whether a U.S. citizen charged with
libel could invoke a right to a trial by jury (258 U.S. 298 [1922]). Even though the local
Federal district court had consistently affirmed the extension of this right, and the Bill
of Rights more generally, to the island since 1898, Chief Justice Taft held that Congress
had not extended the Sixth Amendment right to trial by jury to Puerto Rico. Writing
for the Court, Chief Justice Taft invoked a narrative of Anglo-American exceptional-
68 CENTRO JOURNAL • VOLUME XXV • NUMBER I • 2013
ism to argue that the status of Puerto Rico, rather than the status of those residing in
the island, was determinative of the "application of the Constitution" (258 U.S. 298,
at 309). Congress, the Chief Justice further reasoned, held a plenary power to select
which constitutional provisions could be withheld or extended to Puerto Rico (258
U.S. 298, at 312). However, Taft continued, "should Puerto Ricans desire to move into
the United States proper" they would acquire "all political and other rights" upon
arrival (258 U.S. 298, at 311). Stated differently, even though the Congress had affirmed
the inclusion of naturalized Puerto Ricans within the U.S. polity, their citizenship sta
tus was contingent on the status of their residence.
Writing for the Court, Chief Justice Taft invoked a narrative of Anglo-American exceptional ism to argue that the status of Puerto Rico, rather than the status of those
residing in the island, was determinative of the "application of the Constitution."
Simultaneously, between 1914 and 1940, Congress debated and/or enacted two
strands of legislation addressing the citizenship status of Puerto Ricans. Between 1914
and 1940, lawmakers debated upwards of sixteen status and plebiscitary bills seek
ing to change the territorial status of Puerto Rico (Trias Monge 1981). Although most
of these bills affirmed the Jones Act citizenship provision, six of the bills contained
special citizenship provisions linked to different status options. With the exception
of Representative Vito C. Marcantonio's (D-NY) H.R. 12611, a 1936 bill introduced in
Congress calling for the independence of Puerto Rico, all status and plebiscitary bills
introduced prior to 1940 affirmed the ability of Puerto Ricans to retain a U.S. citizen
ship even if Puerto Rico became a sovereign or independent country. In the case of
Representative Marcantonio's bill, Section l provided for the creation of a special
immigration status for Puerto Ricans enabling the residents of an independent Puerto
Rico to travel back forth between the mainland and the island. In addition, during this period Congress also passed upwards of five amendments
to various immigration laws and the Jones Act seeking to correct the exclusionary
effects on Puerto Ricans who were permanently residing in the island. For example, in
1918 Congress passed an amendment to the Bureau of Immigration and Naturalization
Act of 1906 enabling "any Porto Rican [sic] not a citizen of the United States" who had
served in the U.S. naval forces to acquire a citizenship through naturalization regard
less of whether he had complied with the typical residency requirements or declared
his intention to become a citizen (40 Stat. 542; Re Daniel, 10 PR Fed. 506 [1918); Ex
Extending C1t1zensh1p to Puerto R1eo: Three Traditions of Inclusive ExcluSIOll • Charles R. Venator-Sallbago 6SI
Parte Ramirez, 10 PR Fed. 549 [1918]). Moreover, between 1927 and 1940, Congress
enacted three amendments to Section 5 of the Jones Act enabling the collective
naturalization of Puerto Ricans who had acquired an anomalous citizenship status as a
result of the citizenship provision's exclusions. For example, in 1927 Congress enacted
an amendment, Section 5(a), enabling Puerto Ricans who had previously chosen to
retain a Puerto Rican citizenship to "become citizens of the United States upon the
same terms and in the same manner as is provided for the naturalization of native
Porto Ricans born of foreign parents" (44 Stat. 1418, at 1419). In 1934, Congress passed
a second amendment, Section 5(b), permitting the naturalization of Puerto Rican
women who had previously lost their U.S. citizenship as a result of marriage to an
alien (48 Stat. 1245). Finally, in 1938, Congress passed a third amendment, Section 5(c),
providing for the retroactive naturalization of the children of aliens who failed to avail
themselves of the opportunity to acquire U.S. citizenship under the terms of either
Section 5 or Section 5(a) (52 Stat. 377). In the laner case, lawmakers estimated that
upwards of 6,000 children of aliens had established permanent residency in Puerto
Rico since April 11, 1899, and had become stateless inhabitants of the island (S. Rep.
No. 75-1679, 1938, at 3). What is especially important to note about these amendments
is that lawmakers found themselves consistently having to enact corrective legislation
to naturalize permanent residents of Puerto Rico who acquired anomalous citizenship
statuses as a result of the exclusions created by the Jones Act citizenship provision and
its relationship to the island's unincorporated territorial status.
What is especially important to note about these amendments is that lawmakers found
themselves consistently having to enact corrective legislation to naturalize permanent residents of Puerto Rico who acquired anomalous citizenship statuses as a result of
the exclusions created by the Jones Act citizenship provision and its relationship to the island's unincorporated territorial status.
Extending Birthright Citizenship
In 1933, President Franklin Delano Roosevelt charged a special interdepartmental
committee comprised of representatives from the Departments of State, Justice,
and Labor, with the revision of existing nationality, immigration, and citizenship
laws in order to compile a unified or comprehensive national ity law (President 1939:
v). The scope of the special committee included the codification of citizenship and
nationality acts for both incorporated and unincorporated territories. The report
70 CENTRO JOURNAL • VOLUME XXV • NUMBER I • 2013
was completed in 1935 and subsequently submitted to Congress resulting in the
enactment of the ationality Act of 1940 (54 Stat. 1137). The new law established
that persons eligible to acquire U.S. citizenship and born in Puerto Rico after January
13, 1941, would acquire a jus soli or statutory form of birthright citizenship (Alvarez
Gonzalez 2009; Gonzalez Lamas 1946). The ationality Act of 1940 contained two core provisions defining the status of
Puerto Rico and its inhabitants. The Nationality Act began by establishing a distinc
tion between the U.S. and its outlying possessions or unincorporated territories.
Section lOl(d) defined the U.S. as a geographical term that included the forty-eight
states, Alaska, Hawaii, Puerto Rico, and the U.S. Virgin Islands (54 Stat. 1137). In con
trast, Section lOl(e) defined the remaining territorial possessions, including Guam
and the Panama Canal Zone, as outlying possessions or unincorporated territories.
Accordingly, President Roosevelt's special committee, the original authors of the
Nationality Act, Section lOl(d), established that "bringing" Puerto Rico within the
definition of the "United States" was tantamount to the incorporation of the island
within the U.S. for the for the purpose of conferring a jus soli citizenship on persons
born in Puerto Rico after 1941; it followed that birth in Puerto Rico would now have
"the same effect as birth in the continental United States" (President 1939: 1: 4).
The Nationality Act also replaced the jus sanguinis citizenship provision of the
Jones Act with a jus soli or birthright citizenship provision establishing that all racially
eligible persons born in Puerto Rico after 1941 would acquire citizenship at birth
regardless of the citizenship status of their parents. Section 202 began by retroactively
naturalizing all persons born in Puerto Rico on or after April 11, 1899 (54 Stat. 1137, at
1139). More importantly, according to the President's special committee, Section 202
applied "the rule of jus soli to Puerto Rico as of the date of its annexation to the United
States, treating Puerto Rico for such purpose as an incorporated territory of the United
States" (President 1939: 14). Together with Section lOl(d), these provisions established
that Congress had selectively incorporated Puerto Rico for the sole purpose of extend
ing a statutory form of jus soli citizenship. In 1948, at the behest of the Resident Commissioner Antonio Fern6s Isern (PPD/D
PR), Congress amended Section 5(b) of the Jones Act in order to exempt Puerto Ricans
who had been naturalized prior to 1940 from expatriation under the terms of Section
404(c) of the Nationality Act of 1940 (62 Stat. 1015). Section 404(c) provided for the
expatriation of naturalized citizens who continuously resided outside of the U.S. for
five years or more. Resident Commissioner Fern6s Isern, like prior Puerto Rican
Resident Commissioners, sought to amend Section 5(b) as a cautionary measure. What
is important to note, however, is that U.S. lawmakers agreed that whereas the Jones
Extending C1t1zensh1p to Puerto Rico: Three Trad1t1011S of lnclUSlve ExcluS1on • Charles R. Venator-Sanbago 71
Act conferred a naturalized citizenship on Puerto Ricans, the Nationality Act of 1940
conferred a native or natural-born citizenship status on persons born on the island
after 1941 (H. Rep. o. 80-2210, 1948, at 2; Fern6s 1996).
Notwithstanding these changes, the Nationality Act of 1940 introduced another form
of inclusive exclusion. Whereas Congress had previously enacted legislation extending
the Fourteenth Amendment to the U.S. Virgin Islands, in the case of Puerto Rico lawmak
ers chose to invent a statutory form of birthright citizenship to govern the residents of
the island. Although the Nationality Act of 1940 extended to Puerto Rico an inclusive
form of jus soli or birthright citizenship that conferred a native or natural-born citi
zenship status, lawmakers refused to extend the Citizenship Clause of the Fourteenth
Amendment to Puerto Rico, a precondition for constitutional or equal citizenship.
Concluslon: Citizenship Today
Even though Congress has previously enacted legislation that selectively incorporated
Puerto Rico for the purposes of extending the right to a jus soli citizenship to the
island, lawmakers have refused to change the territorial status of the island for more
than a century. Puerto Rico remains an unincorporated territory that can be selectively
governed as a foreign locality for constitutional purposes. otwithstanding the fact
that Congress has enacted legislation conferring a jus soli or birthright citizenship on
Puerto Ricans that is tantamount to a native or natural-born citizenship status, the U.S.
global empire continues to govern Puerto Rico as a separate and unequal territorial
possession. The multiple citizenship Jaws developed to govern the island have only
reinforced the inclusive exclusion of Puerto Ricans within the U.S. global empire.
Puerto Rico remains an unincorporated territory that can be selectively governed as a
foreign locality for constitutional purposes.
Prevailing citizenship debates continue to affirm this legal history. For example, in
1989, the Congressional Research Service (CRS) introduced a Memorandum estab
lishing that Puerto Rico was located outside of the U.S. for citizenship purposes and
Puerto Rican-born citizens had since acquired a statutory citizenship under the terms
of the Jones Act of 1917. It followed that Puerto Rican-born citizens were mere statu
tory citizens who could not claim a Fourteenth Amendment or constitutional citizen
ship. Thus, the CRS Memorandum concluded, Congress possessed a plenary power to
enact legislation that could unilaterally expatriate Puerto Rican-born citizens (PRF AA
..
72 CENTRO JOURNAL • VOLUME XXV • NUMBER I • 2013
1992: 8l-6; de Passalaqua 1990). Since then, most legal and political debates over the
status of Puerto Rican-born citizens have centered on the fragility of the statutory
nature of the citizenship extended to the island (Roman 2006; Perez 2008).
In the ensuing years, Puerto Ricans have mounted at least two major legal and
political challenges to the CRS interpretation. During the early 1990s, leftist Puerto
Ricans began to travel outside of Puerto Rico and renounced their U.S. citizenship
in order claim a Puerto Rican citizenship. With the exception of the case of the late
Juan Mari Bras, the U.S. has rejected all efforts by Puerto Ricans to renounce their
U.S. citizenship in favor of acquiring a Puerto Rican citizenship (Lozada Colon v. U.S. Dept. of State, 2 F. Supp. 2d 43 [1998)). Alternatively, in 1998, Jennifer Efron, a Puerto
Rican-born citizen residing in the state of Florida, sought to acquire a constitutional
citizenship by undergoing the U.S. naturalization process (Efron ex rel. Efron v. U.S.,
1 F. 2d 1468 [1998]). Efron argued that she feared that a future Congress might enact
plebiscitary legislation that collectively denaturalized persons born in Puerto Rico and
she sought to acquire a constitutional citizenship through naturalization. She reasoned
that a naturalized citizenship would protect her from unilateral expatriation. A year
later, affirming a lower court ruling, without providing an explanation, the Supreme
court rejected Efron's effort to undergo a naturalization process and denied her the
ability to acquire a constitutional citizenship [Efron ex rel. Efron v. U.S., 528 U.S. 987
[1999)). In sum, the U.S. global empire presently confines Puerto Rican-born citizens to
a separate and unequal citizenship status and rejects efforts by Puerto Ricans to either
renounce this status or acquire a constitutional status.
ACKNOWLEDGMENTS r am indebted to the staffs of the Library of the United States Department of the Interior and
the Law Library of Congress for their assistance and consistent support in this project. Several
research grants from the University of Connecticut's Research Foundation and the Center for
Latin American and Caribbean Studies provided me with the necessary resources to conduct
this research. I am also grateful for the insightful critiques provided by the blind reviewers and
Xavier F. Totti's patience with my delays.
NOTES 1 In 1898 the U.S. possessed 5 territories which were subsequently admitted into the Union
(New Mexico, Arizona, Oklahoma, Hawaii and Alaska). All were acquited/ annexed before 1898,
but granted statehood/admission into the union after 1898. 2 In court documents Gonza.Iez's appears as Gonzales. For the purpose of this paper, Gonza.Iez
refers to the person and Gonzales to the legal case.
Extending Citizenship to Puerto Rico: Three Traditions of lnclUS1ve Exclusion • Charles R. Venator-Santiago 73
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